These are the facts: On April 12, 2007, while working off-duty as a security guard at the now-defunct Club Paris nightclub, Orlando cop Fernando Trinidad pushed a woman down a flight of stairs. Trinidad lied about the incident repeatedly and filed a false police report that eventually caused Jessica Asprilla to be charged and arrested for battering a law enforcement officer, after which she lost her job as a social worker. After Asprilla filed a complaint in May 2007, the Orlando Police Department's internal affairs division ruled that Trinidad had indeed violated department policies. As Asprilla's life was turned upside down, Trinidad — a cop with a record of reckless and abusive behavior — was punished with the loss of one vacation day. He's still on the force.
All the while, OPD was sitting on video that exonerated Asprilla.
As Orlando Weekly's investigation revealed, such malfeasance and whitewashing are not uncommon at OPD `see "Might makes right," July 10, 2008`.
In defending itself against Asprilla's civil-rights lawsuit, filed in December, the city's hired lawyers — it outsourced the case to the firm of Hilyard, Bogan & Palmer at a cost so far of $8,684, according to city spokeswoman Heather Allebaugh — took callousness to a new level. Their argument: Even if the city sat on the evidence that eventually cleared Asprilla of criminal charges, and even if OPD demonstrably treats its bad apples with kid gloves, that doesn't mean they're responsible. In other words, the city is saying, "Yes, we did it. So what?"
As city lawyers phrased it in a court pleading, "Simply because a plaintiff suffers a deprivation of federal rights at the hands of a municipal employee does not infer municipal culpability."
On July 14, U.S. District Court Judge John Antoon II cleared Asprilla's lawsuit for its scheduled January 2011 trial. Although Antoon accepted a number of the city's claims in its motion to dismiss, he sided with Asprilla on a big one: that the city was negligent in shelving the evidence that ultimately cleared her from criminal charges. Antoon will also permit Asprilla's attorneys to tweak and refile their claim that OPD's lax disciplinary policies encourage cops to abuse their badges — or, in legalese, constitute a "deliberate indifference to citizens' constitutional rights."
In a sense, the court filings in this case are boilerplate: The city eschews responsibility by painting Trinidad as the bad actor and claiming that state law prevents the city from being sued over his misdeeds. They claim Asprilla's attorneys are trying to link city policies to Trinidad's behavior because that's where the potential big judgment money is. But the arguments also cut to a vital issue: Do city policies that coddle bad cops at the expense of citizens make the city responsible for violations of civil rights?
The city says no. In its motion to dismiss, it argued that it had no duty to let Asprilla know that there was exculpatory evidence, even if as a consequence Asprilla went to jail. Indeed, she very nearly did. It wasn't until late December — three months after her arrest — when a witness mentioned in a deposition that internal affairs investigators had shown her the videotape that Asprilla learned of its existence. A few months later, the state dropped all charges. According to her attorney, Adam Sudbury, the cops were required by law to turn that tape over.
The judge agreed: "Discovery of evidence establishing the falsity of a charging affidavit … would create a duty to disclose this evidence."
More alarming, though, was the city's argument that an eight-hour suspension was a reasonable punishment for a cop who physically injured someone, and then baldly lied about it despite video evidence: "The imposition of an eight-hour suspension for falsifying a police charging affidavit is not a custom or policy that constitutes a deliberate indifference to citizens' constitutional rights; quite the contrary," attorney Bruce Brogan argued. In the city's view, any punishment, no matter how slight the wrist-slap, was good enough.
That may be a legitimate legal argument; from a policy perspective, it's frightening. In essence, the city is broadcasting that its officers can act almost with impunity. What other conclusion can be drawn from the fact that between 2003 and 2008, OPD declined to punish any allegations of police brutality, and lets officers such as Trinidad who violate policy and common decency keep their jobs?
In his ruling last week, Antoon threw out that part of Asprilla's lawsuit on what amounts to a technicality. But she can refile that claim if she offers more proof that OPD's disciplinary policies create an atmosphere that leads to violation of constitutional rights.
Given OPD's track record, Sudbury says, that shouldn't be a problem.[email protected]