CHARLESTON, W.Va. -- A federal judge would not dismiss an excessive
force claim in a lawsuit against a Charleston Police SWAT officer accused of
kicking a woman several times as she lay face down on the floor of her home.
Last week, U.S. District Judge Joseph R. Goodwin denied a motion to drop
an excessive force claim against the SWAT officer, who is identified in court
documents only by the last name "Kapeluck."
The original lawsuit alleges that in October 2010, Kapeluck was part of
a 10-man search warrant raid, which included a team of three snipers, at the
Charleston home of Ludie Perdue and her sons Joshua and Joseph on 1031 Aspen
Road.
Search warrants had been issued for Joshua and Joseph Perdue on charges
of entering without breaking and also on receiving and transferring stolen
goods. Ludie Perdue also had a warrant for receiving or transferring stolen
goods, but according to a SWAT deployment report, the team's primary targets were
Joshua and Joseph Perdue.
The SWAT team was requested because of the Perdues' criminal history,
which included previous charges of carrying a concealed weapon, brandishing and
wanton endangerment, the deployment report states. A detective saw weapons at the
home prior to the raid, according to the report, which lists the warrant as
"high risk."
At about 10:30 a.m., the team broke into the home by using a tool to
disable the door's lock cylinder, and then set off a flash-bang grenade near
the point where the team entered the home.
One of the officers met with a man on the first floor, who surrendered
immediately, according to the deployment report.
When the officers swept the second floor, Kapeluck saw a woman dive
behind some furniture, the report states.
The report says that "the female did not resist but would not
comply with commands to place her hands behind her back," and that
"her hands had to be physically moved to a position suitable for
handcuffing by ... Kapeluck."
According to the lawsuit, while
the woman, identified as Ludie Perdue, was on the floor, the officers kicked
her repeatedly and fractured several of her ribs. She was not arrested or
charged during the raid.
The lawsuit alleges that the
officers did not announce their presence before breaking down Perdue's door.
Goodwin noted that the unannounced break-in appears to conflict with Fourth
Amendment case law.
Goodwin also noted that the
warrants were for property theft crimes, which the city officials did not
dispute.
"There was no indication
that individuals in the home posed a threat that necessitated breaking and
entering and using a flash grenade, nor did the underlying property theft crime
suggest that these tactics were reasonable," Goodwin said.
As a result of the 2010 raid, the
police department filed a "Use of Force Report," which officers must
fill out any time an officer points a firearm at a suspect, uses pepper spray,
discharges a firearm, and other factors.
The report indicates that there
was "no use of reportable force" in the raid.
Goodwin also denied a motion from
the city of Charleston to dismiss claims that Kapeluck's actions were a result
of poor training, but dropped portions of the lawsuit that claims the city
negligently hired the officer.