A homeless veteran alleges city police used excessive force when they arrested him Aug. 4, 2012, at the Bread of Life Veterans Shelter in Augusta after he allegedly refused several requests to leave.

A federal judge ruled Wednesday in favor of the Augusta police on two counts, but the case will continue to trial to determine whether excessive force was used against the veteran, Michael J. Albert Sr.

In an affidavit dated Oct. 1, 2015, Albert says that he had agreed to depart the premises on Hospital Street and was getting up to do so when he was taken to the ground and arrested by several officers.

He says he suffered a torn rotator cuff that was repaired in surgery on July 17, 2014, in Bangor.

Albert, now 59, had been living at the Bread of Life’s JTG House, designated for homeless veterans, when the incident occurred after 9 p.m. on Aug. 4, 2012, as he was sitting outside at a picnic table.

“I was trying to think of everything I needed to throw a barbecue for the residents of JTG House when I saw a resident named William Harris talking on his cellphone,” Albert says in the deposition.

Albert said Harris was becoming agitated and shaking his fist in Albert’s direction, so Albert told him to go away. Albert says he was then told by Christopher Carson, a staff member at the home, to quiet down or he would have to leave.

Albert said Harris came toward him, and Albert told him, “If you come any closer with a clenched fist, I will put my foot up you’re (sic) a**.”

Carson then asked Albert to leave, and when Albert refused and sought a reason, Carson called police.

Officers Benjamin Murtiff, Sgt. Vicente Morris and others arrived, and that’s when Albert said he was ordered to leave by Murtiff rather than simply asked to do so.

“Ultimately, I responded saying, ‘Fine, I’ll leave,'” Albert’s deposition says.

He said as he got up, one officer grabbed his right arm and he was led from a grassy area to a paved area.

“I did not lunge towards or approach Christopher Carson, though the officers and Mr. Carson have said so,” Albert says.

Albert says he was dragged to the ground and used his left arm to partially break his fall. He says another officer raised his left arm up, causing a sudden pain which he says resulted in the rotator cuff tear.

Albert also alleges that an officer knelt on Albert’s head until he was in handcuffs.

He says pictures taken afterward at the VA Maine Healthcare Systems hospital at Togus showed scrapes from the tarmac.

Albert filed his lawsuit in federal court on Oct. 31, 2014, charging false arrest and use of excessive force. Initially, the defendants included Murtiff, Morris, two other Augusta officers referred to as “John Doe,” Chief of Police Robert Gregoire and the City of Augusta.

However, Murtiff and Morris are the only defendants remaining.

Murtiff’s deposition says he thought Albert was going to assault Carson because Albert yelled at the worker and clenched his fist at him, so Murtiff moved between the two men. Murtiff says that when Albert refused to leave after being ordered to do so by Morris, Albert was arrested.

“I took hold of (Albert’s) left wrist while we were on the ground, while Sgt. Morris continued to control his right hand,” Murtiff said. “(Albert) tried to keep his left arm outstretched to avoid having it brought behind his back for handcuffing, and I was forced to bend his arm at the elbow and bring it behind his back over his resistance to my efforts.”

Murtiff says that the handcuffing took place on grass, not pavement as Albert alleges.

In a ruling issued Wednesday in U.S. District Court in Bangor, Magistrate Judge John C. Nivison concluded that police did not violate Albert’s Fourth Amendment rights against unreasonable searches and seizures.

“Because (Albert) failed to follow a lawful order to leave the property, the undisputed record evidence establishes that defendants had probable cause to arrest (Albert) for criminal trespass,” Nivison wrote. He also ruled against Albert’s claim that the defendants conspired to interfere with his civil rights.

However, Nivison refused to grant summary judgment for the police defendants on the basis of qualified immunity on the excessive force claim.

“At a minimum, the record contains factual disputes as to whether plaintiff posed a threat, whether plaintiff had resisted or continued to resist, and the degree of force employed,” Nivison wrote. Albert is seeking punitive damages.

Nivison’s ruling follows an oral argument held Oct. 28, 2015.

Attorney Edward Benjamin Jr., who represents the defendants through the Maine Municipal Property and Casualty Pool, said on Monday that the remaining claim will go to a jury trial before Nivison.

Benjamin said Murtiff and Morris were the arresting officers, but that Albert testified neither of the two used force on him.

“He hasn’t presented evidence against these two people,” Benjamin said.

He also said the officers both deny kneeling on Albert’s head.

Benjamin also pointed to Carson’s deposition where Carson says Albert was under the influence at the time and that Carson repeatedly told Albert to sleep it off before asking him to leave the premises.

Carson says Albert repeated several times that Carson “wasn’t man enough” to make Albert leave.

Albert’s attorney, Stephen Packard, was out of the office Monday and did not reply to a message.

Records in the Capital Judicial Center show that Albert posted $200 cash bail to get out of jail and that conditions prohibited him from being near Carson and from returning to the homeless shelter. They also show that he later moved to Togus.

The criminal trespass charge against Albert was dismissed Oct. 9, 2012, by the district attorney’s office on the basis that Murtiff was unavailable as a witness because he was in training.

Betty Adams — 621-5631

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Twitter: @betadams

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