Before Seattle Police Officer Benjamin Kelly arrested Charles Shateek Smith crossing Rainier Ave. S. in 2009, Kelly introduced himself to Smith by saying, "Come here,"


Benjamin Kelly, SPD Officer Who Cussed Out Supect, Can Be Sued For His Arrest, Says Court

Before Seattle Police Officer Benjamin Kelly arrested Charles Shateek Smith crossing Rainier Ave. S. in 2009, Kelly introduced himself to Smith by saying, "Come here," and when Smith didn't, Kelly said, "Fucking asshole, when I tell you to get fucking over here, you get the fuck over here." Smith today is in prison, but not because of Officer Kelly. He is, however, being allowed to sue Kelly in federal court for arresting him, although the decision, oddly enough, has nothing to do with the officer calling him a fucking asshole.

A federal magistrate today says Smith can sue Kelly because he wrongly arrested him crossing the street back then. Kelly might have been able to stop him for jay walking, and then maybe had probable cause to search him, and find the gun that he found. But the stop was otherwise illegal.

Another federal judge had earlier agreed with that. Judge John C. Coughenour threw out criminal charges in 2009 that resulted from Smith, a felon, being stopped by Kelly. Though Kelly, after the stop, discovered that Smith was carrying a weapon in violation of his parole status, the officer really had no probable cause to detain and search him, Coughenour ruled.

Smith, 26, who has a long felony record dating back to when he was a juvenile, has since reoffended and is now in the state prison at Walla Walla. With time to spare, and drawing from the little money he had in his prison fund, he decided to file a federal suit last year against Kelly and the police department, alleging false arrest.

Cases like this rarely go anywhere. But, after the court asked Smith twice to refile his case because he'd written it up wrong, U.S. Magistrate James P. Donohue read it through and thinks there is merit here.

He did agree with Officer Kelly that Smith didn't have a claim for use of excessive force or racial profiling, as Smith also stated in his pro se brief.

Higher courts have said that use of vulgar language in arrests isn't a constitutional violation, or a show of excessive force, Donohue noted. The magistrate also said he really couldn't conclude whether or not the officer was racially profiling Smith because Smith, in his lawsuit, never says what race he is.

But yes, the prisoner does have a reasonable claim of being falsely arrested, Donohue felt. Though officer Kelly argued that the arrest was supportable because he could have arrested the plaintiff for jaywalking (though he didn't), that didn't go over with the magistrate.

Officer Kelly overlooks the fact that jaywalking is a traffic infraction that "may not be

classified as a criminal offense," said Donohue, observing:

There are numerous exceptions to Washington's decriminalization of traffic infractions, but jaywalking is not such an exception.That jaywalking is a non-criminal offense is fatal to Officer Kelly's argument here, because the probable cause exception to the Fourth Amendment's warrant requirement depends on an officer's belief that "a person committed even a minor crime in [his or her] presence." Officer Kelly cites no case or statute authorizing arrest based on probable cause that a non-crime had been committed, and the Court is not aware of any such authority.

Thus, Donohue said, he "rejects Officer Kelly's motion to dismiss Plaintiff's false arrest claim, finding that Plaintiff has stated a valid claim for violation of his Fourth Amendment rights based on the arrest."

The case of the inmate suing the cop for false arrest will now go forth. We will follow.

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