Wednesday 10 November 2010

Police investigation police. Does it work? (Part 4)

The Toronto Star investigated two decades of cases probed by the Special Investigations Unit (SIU) and during that investigation, it learned that police officers are treated far differently than civilians when accused of shooting, beating, running over and killing people. Today’s story is one of an ongoing series probing police conduct in Ontario

Around 7:30 a.m., David Orbst, a short 50-year-old accountant who keeps his pen in his breast pocket, set out for work. He drove his light blue Mazda Tribute, a practical, bland SUV, south on Jane St. in Vaughan. His first stop, a Tim Hortons for a few peaceful moments before facing the piles of paperwork and deadline demands of his office during tax season.

This is what Orbst said happened on the morning of March 19, 2010.

A York Regional police cruiser was driving in the opposite direction that Orbst was turned around and followed Orbst’s Mazda. The sticker on his car had expired. Orbst said that both he or his wife forgot to renew the permit amid the stress of his job and caring for an 18-month-old boy. An empty baby seat was secured in the back seat was evidence that they had a baby.

The officer pulled Orbst over and when asked to show his driver’s licence and the registration of his car, he showed the cop his driver’s licence but not the registration document for the car as it was accidentally left at home.

Police policy is that when the cop has the motorist’s driver’s licence in his hand, he goes back to his cruiser to see if there is an outstanding warrant for the motorist or whether or not the motorist is driving while his licence is under suspension.

Constable Cadieux, his hair buzzed close to the scalp, walked up to the driver-side window. The officer didn’t say, “Your sticker’s expired.” Instead he asked, “Is this car stolen?” Orbst responded, “No, it’s not stolen. I leased the car.” The officer then said, “Well, the car is registered as black in the database.” Orbst replied, “No. We bought it blue. Call Mazda.”

Now obviously there is confusion here. I can appreciate the problem facing the officer. The man he had stopped was driving what the claimed as being a black car despite the fact that the car was light blue. Now obviously, the data base the officer was speaking about is the Ministry of Transportation which has the descriptions of all cars on the road. Someone in the Ministry accidentally typed in the word ‘black’ when the person should have typed in the words ‘light blue’. I can appreciate the concern that the officer had at that moment, especially since he hadn’t been shown the registration document by the motorist which would have shown what the real colour of the car was.

By then, more cruisers appeared on the scene. Obviously, the officer had called for backup since he suspected that he was dealing with a car thief.

Now you may rightfully ask, ‘Why did he think he was dealing with a car thief?’ Car thieves are known for stealing cars and repainting the cars to other colours. However, they are not so stupid as to not change the licence plates. The licence plate on the car was registered to Orbst. That fact should have been sufficient for the officer to conclude that perhaps a mistake has been made somewhere. That certainly doesn’t justify the officer to immediately conclude that the motorist is a thief.

The officer then returned to Orbst’s car and accused him of being a car thief. Can you imagine how upsetting that would be to you if you are driving your own car and you are accused by a cop as having stolen the car. Orbst was upset and rightly so.

Another officer huddled with Cadieux, and both sat in a cruiser while Orbst waited and worried. On two occasions the accountant got out of his car and walked back to the cruiser to ask about the delay. Orbst was told to get back in his SUV. He waited 45 minutes.

Const. Cadieux finally strode up to Orbst’s Mazda. Orbst put down the window and the cop then said, ‘We think the car is stolen. We’re arresting you.’ Orbst replied, "You can’t arrest me for driving my own car." Actually he can arrest him if the cop really believes that the motorist is driving a stolen car. I am satisfied in my mind that at that particular moment, the cop really believed that the car had been stolen. It was a wrong conclusion but nevertheless, he had the discretionary right to make that conclusion at that particular moment.

Now Orbest realized that a mistake had been made. He didn’t know why the mistake had been made but there he was being arrested for stealing his own car. he immediately rhetorically said, “You can’t arrest me for driving my own car.”

Now the cop obviously wasn’t too bright from the beginning. If he was, he wouldn’t have accused Orbst of being a car thief. He would have taken him to the police station and waited until the Mazda dealership opened to confirm Orbst’s explanation.

And if confirmed, he would have apologized to Orbst and driven him to where they had taken his car. That would have been the end of the matter. But when you are not the brightest bulb in the house, you do something stupid. You take a rhetorical statement such as, “You can’t arrest me for driving my own car.” knowing that Orbst was really implying, “Why am I being arrested for driving my own car?”

The dull bulb then said. (get ready for this) “OK. You are resisting arrest now.” Give me a break. Orbst didn’t say, “I refuse to get out of my car.” He didn’t fight with the officer to prevent the officer from pulling him out of the car. If he had done either of these two things, then he would have been resisting a lawful arrest.

Orbst has the physique of a man who crunches numbers instead of his abdominals. He stands about 5-foot-6 and weighs 172 pounds. He isn’t so stupid as to resist an arrest when two burly cops are there to pull him out of the car if necessary.
Cadieux and another officer each grabbed his arms and pulled him out of this car.

Orbst was still puzzled as to why the police thought that the car was stolen. He said, “Did somebody report a black car stolen? Let’s talk for a second. The dull bulb replied, “You’re resisting arrest.”

Logic was obviously not working in Orbst’s favour. They pulled him over to a mound by the side of the road. Orbst said, “I don’t want to be arrested. I’m innocent. I am driving my own fucking car.” Const. Cadieux kept grabbing Orbst’s arm.

Now I should add that if Orbst was physically resisting being pulled towards the mound, he was in fact resisting an arrest.

Orbst then said to Cadieux who had a hold of Orbst’s left arm. “Stop. You’re going to break my arm. I got to look after my wife and baby.” Now what does an honest and sensible cop say in response? He would say, “Then stop resisting.” What did this dull bulb actually say. He said, “Good, it’s supposed to hurt.” Then he twisted Orbst’s arm higher behind his back and yes, he broke Orbst’s arm near the elbow.

By now the two officers had Orbst lying on his belly on the ground with their knees in his back trying to snap handcuffs around his wrists. Can you imagine how painful that would be having your arms handcuffed behind you when you arm is broken at the elbow?

I speak as an authority on this subject. Years ago, I broke the upper bone of my right arm in half. It never properly healed so I can’t put that arm behind me. I was smart enough to get my doctor to write a note for me stating that my arm cannot be pulled behind my back. I keep the note in my wallet. If I should ever be arrested, I would ask the officer to the read the note and handcuff my hands in front of me or to my belt. If he handcuffed my hands behind my back, I would sue him for the maximum of $25,000 that the small claims court in Ontario permits.

The two officers, their knees in the accountant’s back, tried to snap handcuffs around his wrists. Cadieux, holding Orbst’s head, repeatedly pushed it into the muddy grass. Orbst said, “You’re going to break my eyeglasses.” The cop continued to press Orbst’s head into the grass. His bent eyeglasses ended up somewhere in the grass. Finally they get the handcuffs on him.

Orbst kept saying, “Call Mazda. Let’s go down to my office and people there will tell you it’s my car.” That was reasonable suggestions but just because suggestions are reasonable doesn’t necessarily mean that a stupid cop is going to follow them.

The officers pulled the accountant off the muddy ground and put him in the back of a cruiser, lying on his side, handcuffed, with a broken arm.

Orbst, at times sharp-tongued, said: “It’s Canada. You can’t arrest someone for driving their car.” A police officer began reading Orbst’s his rights. Then they began seaching his car for what they believed must be a stash of drugs and guns they expect most chartered accountants have in their cars.

The officers then came back to the cruiser in which Orbst was lying and said, “Okay, we verified your story. You’re free to go.” Orbst then said, ‘What story?’ Const. Cadieux replied, “You’re lucky we didn’t smash your head into the concrete sidewalk instead of the grass.”

I saw that happen years ago when a police officer banged a crippled man’s head into a sidewalk in Toronto.

Orbst then asked, “How am I going to drive home? I have a broken arm.”

The police left him at the scene of the traffic stop. That was an absolute no no. They should have taken him to the hospital. But that is expecting dull light bulbs to suddenly become brighter. Hey, once a light bulb is dull, it will always be dull.

Orbst, now saturated with adrenalin, drove himself not to the hospital but to the nearest York police station to file a complaint. Agitated, the pain starting to set, Orbst met with a staff sergeant at the front desk. Orbst told his story and then asked, “Are you going to press charges against the officer?” The sergeant said, “No. Here’s the form you can fill out when there’s a complaint against the police department.” The sergeant was correct in what he did.

The accountant drove home, then started to feel weak. His wife took him to the hospital, where doctors x-rayed his arm. Swelling made it difficult to clearly see the break. That evening, in shock, he convulsed, threw up, went back to the hospital and then swallowed some sedatives.

Once notified, the SIU did not immediately launch an investigation. Though Orbst said he was assaulted and his arm was clearly injured, the SIU needed a second x-ray, taken two weeks later, to confirm the break and decide the injury was serious enough. Without a fracture, the SIU would not have opened the case, investigators told Orbst.

He did not understand the delay. He corrected stated, “If any civilian had done this to you on the street, you point the finger and they get arrested.”

The accountant called and emailed the SIU, asking for updates. The SIU told him the probe could last a month, but it took six weeks. Then he learned the SIU cleared the officers.

In its brief media release, the SIU, noting there were no independent witnesses, said it could not determine how Orbst broke his arm. The SIU did not tell the public whether the car was stolen as suspected by Cadieux, and if not, what led to the mix-up. The agency also did not say Orbst had been left roadside after his arm was broken or provide any details of what happened immediately after Orbst’s arm was broken.

Before his commute ended, Orbst had a broken arm after a struggle with York Region Police Const. Derek Cadieux and at least one other officer. The province’s Special Investigations Unit (SIU) did not charge Cadieux.

The constable declined to comment for this story. York Region Police, citing the possibility of a lawsuit, declined to comment. The SIU would not release information about the case. When asked if Cadieux has faced internal disciplinary proceedings, York Region Police said it is investigating the incident.

I doubt that anything will happen to Const. Cadieux. After all, he is a police officer sworn to protect and serve the public. Thanks but no thanks. If I want protection and service, I would try and seek it elsewhere.

Now obviously, both Cadieux and Orbst acted in ways which were wrong to some degree. Cadieux should never have accused Orbst of being a thief simply because he thought that Orbst’ car should have been black instead of the light blue it really was. Further, once you have a man on the ground, you don’t twist his arms so high up his back that you break his arm. That amounts to excessive force and he can be sued for that and he should be.

Orbst was also wrong. He over-reacted when he was called a thief. He should have realized that a mistake had been made which could be corrected. Further, the problem would have been solved if he had his ownership papers with him. In the United States, the ownership of the car is generally attached to the post supporting the steering wheel. Further, when he was told to get out of his car because he was being arrested, he shouldn’t have hesitated. It was his hesitation that resulted in him being manhandled. It is better to bear the shame than bear the pain.

As to the SIU’s opinion that a witness should have been present, I don’t accept that as a genuine reason as to why they shouldn’t have charged the officer with using excessive force. That would be up to a judge to decide as to who was telling the truth. In 1962, a police officer was shot by a car thief and before the officer died, he named the man who shot him. The car thief was convicted of killing the cop on the cop's word alone and the man was hanged.

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