Police brutality suit by Sea Oaks woman set for November trial
A Sea Oaks woman's police brutality lawsuit against the City of Vero Beach, former Police Chief Don Dappen and former officer Fletcher McClellan is scheduled to go to trial in early November, if the parties cannot reach agreement at a court-ordered settlement conference Oct. 8 in Fort Pierce.
Allison Landsman, 62, has alleged McClellan – now an Indian River County Sheriff's deputy – punched her in the face and used unnecessary force during a December 2010 traffic stop outside the Vero Beach Police Department's jurisdiction.
Although the exact numbers remain confidential, sources said Landsman is seeking a settlement in excess of $1.5 million to cover medical expenses, lost wages and legal fees, as well as to compensate her for the ongoing physical pain, emotional suffering and psychological effects she claims were caused by the incident.
Should the case go to trial, Landsman's Stuart-based attorney, Guy Rubin, also will seek punitive damages that could add more than $1 million to the judgment, if the jury renders a verdict in her favor.
Rubin was working another trial last week and could not be reached for comment, but his paralegal, Wendy Mowery, confirmed the settlement conference had been set. She was unable to say whether a settlement offer from the defendants was likely.
"This is standard procedure," she said of the conference. "It's a way of weeding out cases that don't need to go to trial."
In her lawsuit, filed in March 2014, Landsman claimed she sustained "traumatic injury" to her brain (intracranial bleeding), nose (bridge fracture) and left eye (peri-orbital swelling). After being taken to the Indian River Medical Center's emergency room, she was transferred to the trauma unit at Lawnwood Regional Medical Center in Fort Pierce for specialized care of her brain injury.
She also sustained a torn rotator cuff in her right shoulder.
Landsman said last week that she suffers from post-traumatic stress disorder and a fear of authority figures as a result of McClellan's actions. "Ever since he punched me, I flinch when people are standing next to me," she said.
Robert Bonner, the Longwood-based attorney representing the defendants, did not return a phone message left at his office. However, his two attempts to have the case dismissed were denied, first by U.S. District Judge Donald Graham in Fort Pierce, then by the U.S. 11th Circuit Court of Appeals in Atlanta.
In his appeal for a summary judgment to dismiss the complaint, Bonner argued that McClellan used only the force necessary to take Landsman into custody and that, because he acted within his capacity as a police officer, he and his employer were immune from such civil claims.
"They kept trying to get the case dismissed, but they've run out of appeals," Landsman said. "Either we settle or we go to trial."
Landsman said she is prepared to endure a trial, if necessary, but she's hoping the defendants will settle – even though a court victory probably would produce a more lucrative award.
"If we settle, there's no appeal," she said. "This has already been going for five years. If we go to trial and win, they can keep appealing and appealing, and it could take another five years."
If a settlement isn't reached, the case will be heard at the federal courthouse in Fort Pierce with Graham presiding. Mowery said jury selection would begin Nov. 6 and a weeklong trial would start Nov. 9.
Landsman's witness list contains 90 names, among them: defendants McClellan and Dappen; VBPD officer Craig Urbanczyk, who also was at the scene; and numerous local medical professionals, including orthopedist Omar Hussamy, plastic surgeon William Frazier and oral surgeon Andrew Colgan.
Rubin has said he will prove that McClellan violated Landman's civil rights under the Fourth and Fourteenth Amendments while arresting her at the front door of her Sea Oaks home.
The complaint alleges McClellan had a "history of reports of excessive use of force incidents causing injuries and violations of rules and regulations" with the VBPD, and that the city "knew or should have known McClellan had a propensity for misconduct, including excessive use of force, against members of the public."
The suit further claims that, as McClellan's employer, the city is "responsible for his acts and is liable to Landsman for her damages, including physical injuries resulting in pain, suffering, mental anguish, loss of capacity for enjoyment of life and mental suffering."
McClellan left the VBPD three years ago and joined the Indian River County Sheriff's Office, where he works with road-patrol deputies as a field training officer.
The incident occurred shortly before 9:30 p.m. on Dec. 6, 2010, after Landsman arrived at the Sea Oaks security gate. She said she had dinner with a friend at Porpoise Point, just northeast of The Moorings, and was driving north on State Road A1A in her black Mercedes when she realized she had left her cell phone at his home.
She pulled into the Villa Solana subdivision and, while attempting a tight U-turn, she "inadvertently and unknowingly backed into a light post, causing less than $200 damage," according to her complaint. A man who identified himself as Gary Hughes, a resident of the community, heard the impact, saw the car drive away and called the police at about 8:35 p.m.
Hughes gave the dispatcher the license tag number, and McClellan responded to the call and filled out a report. Landsman, meanwhile, returned to her friend's home to get her phone and then headed back to her home.
Tracing Landsman's address through her tag number, McClellan and Urbanczyk drove to Sea Oaks – in separate patrol cars – to talk to her about hitting the light post at Villa Solana. The complaint contends, however, that because the officers left their jurisdiction, were "not in hot pursuit" and had no reason to believe she was a fleeing felon or had caused any injuries in Vero Beach, they had no legal right to detain her.
McClellan testified in his sworn deposition that Urbanczyk saw a black Mercedes driving north on S.R. A1A and, noticing damage to the vehicle, followed Landsman to Sea Oaks.
After she proceeded through the gate, Urbanczyk turned on his emergency blue lights and stopped her about 300 yards inside the community. McClellan, who arrived only minutes later, said Urbanczyk suspected she was driving drunk.
When Urbanczyk approached the vehicle, "Landsman responded by advising Urbanczyk that she urgently had to go home to use the restroom to urinate," the complaint states, adding that the officer did not request she take a sobriety test or issue any order for her to remain there.
So, when Urbanczyk walked toward the rear of her car and toward his patrol car, Landsman put her car in drive and proceeded to her home, approximately one-tenth of a mile away. She parked her car and hurried to her front door.
It's there that McClellan's deposition offers a vastly different version of what happened.
He claims Landsman put the car in drive and "floored it," turning into Urbanczyk and striking him with the driver's-side mirror as she raced away, committing what he "believed to be aggravated assault on a law enforcement officer."
While Urbanczyk continued the pursuit on foot, McClellan said he jumped in his patrol car, drove past Urbanczyk and chased Landsman to her home, where, during a brief struggle, he took her to the ground and placed her in handcuffs.
"I put my hands on her shoulders and I said stop, and I tried to stop her from being able to open that door," McClellan testified, adding that the 5-foot-2, 115-pound suspect immediately shrugged her shoulders to shake off the 6-foot-1, 220-pound officer.
It was while performing the takedown maneuver, he said, that his foot slipped and they both "fell to the ground," where she was "face down" and "limp."
She was rushing to get into her home to use the bathroom when an angry McClellan unnecessarily roughed her up.
"I was putting my key in the door and he grabbed me," Landsman said. "He pulled and twisted my shoulder twice, then started punching me and knocked me unconscious."
Landsman initially was charged with aggravated battery with a deadly weapon, fleeing and eluding, DUI and leaving the scene of an accident. She later pleaded guilty to DUI and leaving the scene – stemming from the Villa Solana accident – accepting a deal from prosecutors to drop the charges of aggravated battery with a deadly weapon and fleeing-and-eluding.
Rubin said earlier the police dash-cam video shows the officers' claim that Landsman tried to hit Urbanczyk with her car is "absolutely false" and discrepancies in their testimonies would damage their credibility with the jury.