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Lawyer: Elmira city police used reasonable force in arrest






The Elmira police officers who arrested a now 73-year-old man two years ago and were named last month in a $3.5 million federal lawsuit alleging police brutality and false arrest used physical force that "was reasonable and necessary to maintain order and discipline," legal papers filed in response to the lawsuit say.

The lawsuit filed by Jose Molina Sr. of 964 Oak St., Elmira, also should be dismissed because it is "untimely and barred by the applicable statute of limitations," said Elmira attorney Pamela Doyle Gee, who is representing the Elmira City Police Department officers.

Gee, an attorney with the Elmira law firm of Davidson & O'Mara, says that a similar lawsuit filed by Molina was already dismissed by state Supreme Court Judge Judith O'Shea. Therefore, Gee says, it cannot be re-litigated in another court -- in this case, U.S. District Court in Rochester.

According to documents on file at the Chemung County Clerk's Office, O'Shea dismissed the suit on a technicality, failure to timely file the complaint, rather than basing her ruling on its merits.

Molina's lawsuit names as defendants officers Matthew Saunders and Joshua VanSkiver, Capt. James Wandell and two other officers whose names are not yet known. It claims Molina was unlawfully "restrained, seized, assaulted, battered, handcuffed and dragged out of his bed" by police officers who came to his home looking to arrest his son. Police were dispatched to the Oak Street address on Sept. 19, 2010, to handle a domestic incident involving Jose Molina Jr. and his girlfriend.

The son wasn't present, but Molina's complaint says the officers entered his home without a warrant or consent, found him lying in bed receiving oxygen, due to his severe asthma. The officers "fired mace at or proximate to Molina's bed."

On the way to the police car after Molina was handcuffed, his complaint states, his pants fell down causing his "private parts to be exposed and shown to his neighbors." Molina was charged with resisting arrest but was later acquitted of the charge.

In her answer, Gee states that Molina's arrest was supported by "probable cause, that he was not subjected to unreasonable use of force and that he was not denied prompt access to medical care."

At all relevant times, she writes, the officers acted in good faith within the law, did not infringe on Molina's constitutional rights and "assert qualified immunity afforded them" by state law and the Constitution of the United States.