Court drops charges against officer seen kicking man

A family photo of Braxton Scherz and the injuries he sustained while being arrested along with several family members in front of his home after a Harris County Precinct 4 Constable Deputy pulled over Scherz' son David Scherz in the family's driveway for a traffic stop. less A family photo of Braxton Scherz and the injuries he sustained while being arrested along with several family members in front of his home after a Harris County Precinct 4 Constable Deputy pulled over Scherz' ... more Image 1 of / 30 Caption Close Court drops charges against officer seen kicking man 1 / 30 Back to Gallery

It was September 2011 when Harris County deputy constables pulled over David Braxton Scherz Jr. for running a stop sign after he had pulled into the driveway of his family's home.

Almost two years later, prosecutors charged Jimmy Earl Drummond, then a Captain with Pct. 4 Constable's office, with official oppression after they were shown a video that caught the lawman kicking Scherz. The Scherz family obtained and released the video after filing a federal lawsuit against the deputy.

On Monday, a Houston judge ruled that the statute of limitations had run on the misdemeanor charge, effectively barring prosecution on the eve of trial.

"It's extremely disappointing," said Randall Kallinen, the attorney who filed the federal lawsuit for the Scherz family. Kallinen blamed prosecutors for not filing the required paperwork on time. "They messed up. I don't know if it was purposeful, but they messed up."

State District Judge Denise Collins agreed with Drummond's attorney, who filed a motion two weeks ago arguing that prosecutors did not indict Drummond before the two-year statute of limitations had run out. Prosecutors filed a criminal complaint, charging Drummond with the Class A misdemeanor, a day before the time limit had expired in 2013. Drummond was indicted three months later.

Collins ruled against prosecutors who argued that the criminal complaint was sufficient to keep the case viable, or "toll" it, until a grand jury could investigate and hand down an indictment.

"No disrespect to the court, we just have a difference of opinion based on the law," said Julian Ramirez, head of the civil rights division of the DA's office.

He said the allegations came to his attention in early September 2013, which did not give prosecutors time to thoroughly present it to a grand jury.

"So we decided to file it, in felony court, using our standard procedure - by filing a criminal complaint."

'Really narrow issue'

Official oppression is a misdemeanor with a maximum sentence of a year in jail, but it is heard in felony courts under Texas law.

He said the ruling prohibits the office from simply indicting Drummond again. Their only recourse is to appeal, which he said the office is considering.

"We're disappointed, we put a lot of time and effort into it," Ramirez said. "I wish that we could get the merits of the allegation before a jury."

Drummond's attorney said it was the correct ruling, even though he said he understood the prosecutors' logic.

"I just think that their interpretation of the 'tolling' statute was different than ours," said Sam Cammack. "This is a really narrow issue and it's a real rarity that something like this even happens."

Even though the charges were dropped through a technical point of law, Cammack said he believes the lawman, now a captain with the Montgomery County Constable Pct. 3 office, is innocent.

"Jimmy's a good cop, and a cop's got a tough job," Cammack said. "I still stand by Jimmy and there was no wrongdoing by him in the first place."

After deputies tried to arrest Scherz, his mother, father and other family members came out of their house in the 17000 block of Ridge Top Drive to investigate the commotion. A patrol car's dashboard camera showed deputies arresting them for interfering with the arrest.

A camera also showed Drummond kicking Scherz, then 26.

Federal lawsuit

For two years, the family fought the charges and after they were dismissed, they filed a federal lawsuit against Drummond and other officials.

Because of that lawsuit, prosecutors with the Harris County District Attorney's Office saw video of the arrest and charged Drummond with official oppression.

Cammack said the video shows Drummond kicking Scherz during the arrest, but said the officer was kicking his arm, because Scherz kept his hand under his body after deputies put him face down on the ground.

"He kicked his bicep, because he believed the guy had a gun in his waistband," Cammack said. "He believed the other officers were in danger."

The dash-cam video, which was released to the public in 2013 when the Scherz family filed their lawsuit, shows Scherz lying facedown in the street with his arms behind him. Deputies can be seen holding him down.

A deputy constable identified as Drummond walks up and can be seen kicking Scherz five times, in what appears to be the ribs. Later, he appears to give Scherz's head a final kick after he is handcuffed. Later, on the video, an officer can be seen apparently dropping his knee on the back of Scherz's neck.

Cammack said Scherz's rib had a hairline fracture, but it was not because of Drummond.

"Those deputies body slammed him to the ground," Cammack said. He noted that Drummond was the only officer charged with a crime in the incident.

After the family filed the lawsuit, officials with the Pct. 4 constable's office said deputies acted appropriately because the incident began as a call of an officer needing assistance and said the family "attacked" the responding officers.