Officers face civil lawsuit

Ben Leubsdorf

Last modified: 9/24/2012 12:00:00 AM

A Loudon police officer and a state police sergeant are headed to trial next month in a civil lawsuit filed by a Concord woman who says she was wrongfully arrested in 2009, on a summer night that a federal judge described last week as beginning like 'a stereotypical low-budget horror film.'



Jessica Dennis, then 18, was arrested in July 2009 in the Loudon woods and charged with resisting arrest and unlawful intoxication. The first charge was later dismissed, and she was acquitted on the second.



In June 2011, Dennis filed a federal lawsuit alleging violations of her civil rights, including wrongful arrest, malicious prosecution and excessive use of force because a state police dog named Gusta attacked her during the incident.



Last week, U.S. District Judge Joseph LaPlante granted partial summary judgment to the defendants in the case and dismissed most of Dennis's claims but allowed the wrongful arrest claim to proceed against state police Sgt. Gregory Ferry and Loudon police officer Gregory Bavis. Ferry also faces claims of negligence and liability for the dog attack.



A second Loudon police officer, Robert Akerstrom, was dropped as a defendant in the suit, along with police Chief Bob Fiske and the town of Loudon.



A jury trial is scheduled to begin Oct. 2, though one of Dennis's attorneys said Friday that the case could be settled before then.



LaPlante had some fun in the 28-page ruling he issued Thursday, describing some of Dennis's actions on the night she was arrested as unwise given 'the tropes of the horror movie genre' as presented in the 2007 book How to Survive a Horror Movie: All the Skills to Dodge the Kills. (In a footnote, LaPlante also cited the 1996 film Scream.)



'The evening giving rise to this civil rights case began like a stereotypical low-budget horror film,' LaPlante wrote, with Dennis and her friends having a few drinks before heading into the woods. As the teens sat 'alongside a desolate road' around midnight, the judge wrote, Dennis heard 'unsettling noises coming from outside the car.



'She panicked, ran, and hid in the woods,' LaPlante wrote. 'She might have been better off staying in the car. In those woods lurked something almost as dangerous (to an unlawfully imbibing teenager) as a murderous predator . . .'



That, he revealed, would be Ferry and his K-9 partner, Gusta, who had been searching for someone else entirely. The dog attacked Dennis, causing minor injuries, and she was subsequently arrested for underage drinking,



Nicholas Brodich, one of Dennis's attorneys, said the team is pleased that the case is headed to trial, even if some of the suit's initial claims were tossed out.



'When you're drafting these pleadings, you always try to be as inclusive as you can,' he said. 'You cover your bases with that stuff, but when you do the discovery . . . it's probably inevitable that some of these get whittled down. That's good lawyering on both sides.'



Assistant Attorney General Kevin O'Neill, one of Ferry's lawyers, didn't return a message Friday seeking comment. John Curran, the attorney for Bavis, declined to comment on LaPlante's ruling.



'We're in the process of reviewing the order,' Curran said.



Distress, use of force



About 11:45 p.m. on July 19, 2009, Bavis and Akerstrom, both Loudon police officers, were called to a loud party on Lovejoy Road, according to LaPlante's order last week. They saw a man run into the woods and asked Ferry, of the state police, to help track him using Gusta, a trained police dog.



Several hundred feet away, Dennis and some friends were sitting in a sport utility vehicle. After hearing yelling, she said she became scared, ran into the woods and sat down on the ground.



'Without warning, and while Dennis remained still, Ferry and Gusta came upon Dennis in the woods and Gusta attacked her, biting her several times on her shoulder, arm, and leg. Dennis did not resist or fight back, and at some point, the dog clamped its teeth on her tightly and began to drag her across the ground,' LaPlante wrote. 'Ferry was eventually able to regain control of Gusta and stop the attack.'



Ferry described Dennis as visibly intoxicated. Dennis admitted she had consumed three drinks over the course of nearly three hours but said she felt sober. Another woman who was present said Dennis didn't appear drunk.



Bavis and Ferry arrested Dennis and at the police station she was administered a breath test, registering a 0.077 blood-alcohol level, below the legal limit for driving.



A charge of resisting arrest was dismissed by the Concord district court for lack of evidence, LaPlante said, and she was acquitted on the alcohol-related charge.



In the lawsuit filed last year, Dennis said her clothing was ripped in the dog attack, but she was handcuffed and not allowed to adjust her clothing to better cover her chest. She also said officers called her a 'ding dong' and other names, and that some police officers commented on her appearance while taking photos with their cell phones.



But Dennis agreed to drop the claim that the officers intentionally caused emotional distress, Brodich said, because there was no proof of lasting harm.



'We had no doctor's report that we could submit that showed there are real, tangible, physical aftereffects that she suffered as a result of this,' he said.



Akerstrom was dropped as a defendant because his involvement in Dennis's arrest was incidental. Dennis agreed to drop the town of Loudon and Fiske, the police chief, as defendants as well.



In his ruling last week, LaPlante granted summary judgment to the defense on other elements of the lawsuit, saying there was no evidence of malicious prosecution and that there was no case for excessive force because Ferry had ordered Gusta to track a suspect, not to apprehend or attack.



'That Gusta came upon a person and attacked her was an unfortunate, unexpected, and unintended byproduct of that search, and Ferry immediately took steps to regain control of Gusta when it happened,' LaPlante wrote.



Brodich called that 'a subtle distinction, to be sure.'



But LaPlante did allow the claim against Bavis and Ferry for unlawful arrest to proceed, noting their account that Dennis appeared intoxicated was at odds with a witness's account. He also noted Dennis had three drinks over a period of two hours and 45 minutes, finishing the last drink some 90 minutes before she was arrested.



'A reasonable jury, applying their own lay knowledge of the effects of alcohol consumption, could conclude that Dennis would not have appeared intoxicated, or even smelled of alcohol, at the time of her arrest,' he wrote. 'On this record, the court cannot conclude that an officer in defendants' position would necessarily have had a reasonable belief that Dennis was intoxicated.'



Ferry also faces claims of strict liability and negligence for the injuries Dennis sustained in the dog attack, though LaPlante granted him summary judgment on a claim of battery 'because Gusta's attack was unintentional.'



'Pressure cooker'



Brodich noted that most civil suits never go to trial. Given last week's ruling, he said, the parties may try to reach a settlement .



'These trials are very costly. It's a last resort. . . . I think that all the parties want a little more time to digest this order and talk amongst ourselves,' he said.



There's not much time left, with the trial scheduled to begin Oct. 2.



While Brodich and Curran both said they hoped to delay the trial, LaPlante on Friday denied a motion to continue the case, saying the lawyers have plenty of time to settle the suit if they wish.



'The pressure cooker has officially been put on the stove,' Brodich said.



(Ben Leubsdorf can be reached at 369-3307 or bleubsdorf@cmonitor.com or on Twitter @BenLeubsdorf.)





