Saturday, July 28, 2001

Lawsuits accuse Gallup officers of misconduct

Andrea Egger
Staff Writer, The Gallup Independent

GALLUP — Lawsuits for police brutality have been filed against the Gallup Police Department, a Gallup police officer and a former Gallup police officer.

Gallup Officer Owen Pena and former officer Daron Overman, who filed a lawsuit last week against the police department for discipline issues, are under fire in two lawsuits charging them with using excessive force in two different incidents of arrest.

Ramah attorney William Stripp, who filed the two lawsuits against the officers, said he was amused at Saturday's Independent, in which a story appeared about Overman and Pena suing the police department for being disciplined.

"Both of these officers have displayed a pattern of misconduct," Stripp said.

Stripp actually filed the lawsuits Aug. 8 and Aug. 9. The Independent learned about them Monday.

Gallup Police Chief Daniel Kneale, who started as chief Aug. 7, said he doesn't know anything about these lawsuits because he wasn't around when the incidents allegedly took place.

The lawsuit against Overman, which also names as defendants officers Gerald Tholund and Anthony Ashley, dates back to an incident on Aug. 25, 1998. Plaintiffs are Jennifer Jones of Gallup and her baby, Joseph.

The complaint alleges that Ashley attempted to stop the vehicle driven by Daniel Pena, who is the father of Joseph, on Interstate 40. Jones and her baby were passengers in Daniel Pena's car. The reason for the stop was that the vehicle Pena drove had an expired license plate tag.

The lawsuit claims that Daniel Pena wanted to take Jones and the baby home before stopping for police because on April 13, 1998, an encounter with former Lt. Calvin Wiggins ended with Jones getting her front teeth knocked out. This made Jones and Daniel Pena afraid of the police, according to the complaint.

Ashley pursued the car, and Overman joined in the pursuit. At some point, the lawsuit alleges that Overman drove up next to the car and noticed Jones and the baby in the car.

Daniel Pena exited the interstate at the west interchange and drove into a dead-end street, at which point, Overman and Ashley exited their police cars. Daniel Pena started to make a U-turn.

"As (Daniel) Pena turned his car around, Overman began to shoot at (Daniel) Pena's car," according to the lawsuit.

A pursuit began again on Highway 66, with Tholund joining in. At Highway 66 and Dean Street, Daniel Pena's car stalled. At this point, the lawsuit alleges that Overman and other officers jumped out of their police cars and smashed the windshield of the car with their nightsticks and attempted to drag the suspect out of the car.

"When (Daniel) Pena started his car and put it into reverse, Tholund, who was aware that Jones and infant were in Pena's car, fired multiple rounds at (Daniel) Pena's car," according to the lawsuit.

Daniel Pena drove Jones and the baby to a nearby trailer park, stopped and ran. Police apprehended him and arrested him.
Stripp, whose lawsuit was filed on behalf of Jones and the infant, said in an interview Monday that police could have killed Jones and the baby by firing at the car. And they knew the baby was in the car, Stripp said.

"Who are the ones committing child endangerment in a case like this?" Stripp said.

He added that an expired tag is no reason to chase a vehicle. "In typical cowboy-and-Indian fashion, they turned it into a wild chase and a shoot-em-up," Stripp said.

Officer's side

The lawsuit doesn't tell the whole story, said Overman, who spoke about the case in an interview since he no longer works for the police department.

Overman said he didn't see the baby in the car until Daniel Pena's car stalled and he exited his police car.

During the actual chase, "He tried running me off the road," Overman said. "I shot at the tires."

When the car stalled, Overman ran to Pena's car and tried to pull him out of the car. At this point, Daniel Pena backed up, with Overman still hanging on to the car.

"He dragged me several feet," Overman said.

Daniel Pena then almost ran over Tholund, who was also on foot. Tholund shot at the tires, Overman said.

They arrested him for aggravated assault on a police officer and other charges, including child endangerment, Overman said.
In the case Stripp filed against Owen Pena, plaintiff Luis Alejandro Acosta accused Pena of police brutality.

The case alleges that on May 15, 2000, Acosta stopped at a gas station on Coal Avenue to make a telephone call. Owen Pena pulled into the gas station and told Acosta that someone had made a report of Acosta "bothering him," according to the complaint.

Acosta said he wasn't bothering anyone, and he asked the name of his accuser.

"Without warning, (Owen) Pena grabbed Acosta by the neck and threw Acosta to the ground," according to the lawsuit, which also accuses Owen Pena of pushing his knee against Acosta's face and grinding Acosta's face into the asphalt.

Acosta asked what he had done and why the officer was doing this.

Owen Pena made a profane, racial statement, according to the complaint, and then Owen Pena sprayed Mace into Acosta's eyes. The officer then dragged Acosta to his police car.

Acosta said Owen Pena laughed when Acosta said he needed treatment for his eyes.

"As a result of the incident, Acosta received abrasions, bruises, swelling and a wound to the left side of his face that has left a permanent scar," according to the complaint.

In both cases, District Judges Joseph Rich and Grant Foutz have decided against hearing the case. In Acosta's case, Judge William Birdsall of Farmington was assigned to the case on Friday.

No court dates have yet been set.

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