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.