[B]URLINGTON — A Richmond man who was imprisoned after a former city police officer allegedly lied under oath is suing the city and the former officer in federal court.
Michael Mullen was charged with felony cocaine possession after an October, 2016, traffic stop initiated because his license plate light was out, according to the lawsuit.
The suit seeks compensatory damages from the city and the former officer and punitive damages against the former officer.
The complaint claims that former Burlington Police officer Christopher Lopez violated Mullen’s Fourth Amendment right against unlawful search and seizure when he chose to “improperly expand a routine traffic stop into a full scale drug investigation,” and then lied about the pretext for searching Mullen and his car.
Lopez falsely stated in an affidavit that the searches he conducted were justified because he had smelled marijuana coming from Mullen’s car.
Mullen spent four months in prison while his case was pending.
Body camera footage reviewed by Mullen’s public defender shows a conversation between Lopez and another officer where Lopez states he does not smell marijuana.
The footage shows both officers believed their body camera’s were off, but Lopez’s camera continued to record the incident, capturing the officers’ conversation.
There is an ongoing criminal investigation into whether Lopez committed perjury. He resigned from the force a day before a disciplinary hearing in February where the police chief said the officer would be fired.
Lopez is being represented in the federal civil suit by attorney Philip Woodward who did not immediately return a call for comment Friday.
The lawsuit, filed by attorney David Bond, says the unwarranted pat and frisk search Lopez conducted led to the discovery of less than a gram of cocaine in Mullen’s pocket.
Possession of that amount of cocaine in Vermont is a misdemeanor, but when police subsequently searched his car they found a several gram bag of white powder, which they improperly concluded was cocaine, resulting the felony charge. The bag contained baking soda, according Mullen, the suit says.
As a result of the felony charge, bail was set at cost that Mullen couldn’t afford, the lawsuit says.
The lawsuit argues the city shares liability for Lopez’s actions because its body camera policy “provides its police force with the opportunity to operate free from meaningful supervision, scrutiny, and oversight.”
The policy allows officers to turn their body camera’s off during “on scene conferences between officers” where they discuss investigatory strategy “the disclosure of which might compromise future investigations.”
The ability to turn off body cameras during on scene conferences encourages “a certain few officers” to act outside the law, according to the lawsuit. The suit also faults the Burlington Police Department for not properly training Lopez in investigative tactics.
Attorney Bond said the body camera policy “basically provides, I think, the shadows from which to operate that the police officer in this case needed” to conduct an illegal search of his client
City Attorney Eileen Blackwood said she rejects those assertions. “We don’t think the city’s policy encourages officers to break the law,” Blackwood said.
“We are confident that at the appropriate time, the city will be dismissed out of the case,” she said.
However, Blackwood confirmed that the city’s insurance company has already begun settlement talks with Mullen’s attorney. The city’s insurance policy covers both the legal defense against charges and any potential settlement.
The insurer has already hired the firm Lynn, Lynn and Manitsky to defend the city in the case.
Bond said he’s optimistic a settlement can be reached.
“I think the case is really easy to prove, and my client is interested in reaching a settlement,” Bond said.
Blackwood said the city’s insurer can’t enter a settlement that would require the city to admit wrongdoing, but it can settle the case without admitting fault. “All they can do is pay the money,” she said.
The insurer may make the decision that it’s more cost effective to settle the case than defend the city against its accusations, she said.
Attorney General TJ Donovan said his office is still reviewing an investigative report from the Vermont State Police and conducting its own inquiry to decide whether to bring criminal charges against Lopez.
