Galveston melee a “laboratory” for police abuse, judge writes
GALVESTON - Police stormed into a wedding party at a seaside hotel in 2008, punching and striking guests with nightsticks, shooting pepper spray and firing stun guns.
More than five years later, as a lawsuit stemming from that episode is about to come to trial, a legal finding by the federal judge hearing the case suggests that Galveston's police department has a deeply entrenched history of excessive force. And the department is facing new allegations of misconduct stemming from an incident during the recent Mardi Gras celebration.
Police had a history of use-of-force complaints before 34 officers swarmed into the wedding party in October 2008, according to a March 5 memorandum by U.S. District Judge Keith Ellison explaining his decision to allow the case to proceed to trial. The event became known as the "H20 case," a reference to the name of the hotel bar where it occurred.
The department was "plagued with activities that oftentimes were illegal, most of the time unethical," Ellison quoted former Police Chief Charles Wiley as saying. "Use of force was a 'big issue' within the department itself."
The memorandum notes that the case is remarkable because there are so many alleged incidents of brutality. Ellison counts 49.
"The H20 incident - while in some sense a single 'episode' - is properly conceived of as a laboratory for evaluating how pervasively and recklessly constitutional norms were disregarded by a sizable portion of the Galveston police force," he wrote.
After three years winding its way through federal courts, the case is scheduled for trial March 24.
The case stands out for other reasons, including the participation of a celebrity plaintiff. Brandon Backe, a pitcher for the Houston Astros at the time, is one of the 12 members of the wedding party who sued the city and 15 officers in 2010, alleging that they were savagely beaten even as they tried to cooperate with police.
Backe's attorney Charles R. Parker said an officer ended his client's pitching career by slamming him to the ground, then stepping on his back and breaking his shoulder. The Astros released Backe in June 2009.
The trial comes only weeks after Galveston police were accused of using excessive force in making 19 arrests during Mardi Gras after revelers began throwing bottles and other objects. Houston civil rights activist Quanell X led a protest accusing officers of punching and pepper spraying those arrested while they were in handcuffs.
Chief denies allegations
The city is defending a separate use-of-force lawsuit in an incident in which a police dashboard video shows several officers pummeling a man on the beach.
The police chief denies the most recent accusations and says the department has improved significantly over the last few years.
An attorney representing Galveston says the officers' use of force in the 2008 event was justified.
Police Chief Henry Porretto, promoted in June 2012 after more than 20 years in the department, said the police force has changed markedly since 2008. He points to the 2013 Municipal Excellence Award in Public Safety from the Texas Municipal League and another award last year for a program to improve communication with citizens.
"Our accomplishment speaks for itself," Porretto said.
Citizen complaints dropped from 129 in 2011 to 38 in 2013, according to the department's annual report.
Leon Phillips, a member of the department's Civilian Review Board and president of the Galveston County Coalition for Justice, said the change has been remarkable.
"Back when H20 happened, we were probably getting one or two calls a month at least of people complaining about police brutality," Phillips said. "Now, very seldom do I get a call of that nature."
The mere fact that the case will go to trial sets it apart from other lawsuits claiming police misconduct. Ellison says in his memorandum that claims of excessive force by police are difficult to prove.
"Given such a bleak track record, plaintiffs appear to face a nearly insurmountable evidentiary hurdle," he writes. But he adds that this case is different because it includes complaints against so many officers.
William Helfand, the attorney representing the officers and the city, said the evidence favors his clients. "I am confident that the evidence will explain the propriety of any force that was necessary," Helfand said.
The H20 incident
The city was still in shambles from Hurricane Ike, and police were working long hours on Oct. 4, 2008, when a number of those attending a wedding at the Galveston Island Convention Center decided to continue the celebration at the H20, an outdoor bar at the San Luis Hotel swimming pool.
Police said Daniel Cole O'Balle, then 19, resisted arrest for underage drinking, and additional officers were called when fights broke out among members of the wedding party, some of whom tried to interfere with O'Balle's arrest.
Five witnesses interviewed by the Houston Chronicle after the arrest said there were no fights and no one interfered with or resisted police. A YouTube video of O'Balle's father, Gilbert O'Balle of Texas City, then 47, showed him apparently unresisting as he was shocked with a Taser.
Among those arrested were an official with the Federal Emergency Management Agency and a hotel restaurant patron, neither associated with the wedding party.
The judge wrote that Wiley, the police chief, knew something was wrong when he reviewed the reports.
"He instantly knew, from the lack of heft alone, that the reports were deficient," the memorandum says. No use-of-force forms had been completed even though the chief knew that a Taser and pepper spray had been used and O'Balle suffered injuries so severe he had to be flown to a Houston hospital.
The ranking officer in the H20 incident, who is accused of grabbing one of the guests by the hair and spraying pepper directly into the guest's eyes, was put in charge of the internal investigation.
The investigation found that officers followed department policy in using force, but that they were lax in their reporting.
Nine officers were temporarily suspended without pay, and four received written reprimands.
"Chief Wiley acknowledges that deficient reporting can be motivated by a desire to avoid accountability for using force," the memorandum says.
"He also admits that poor reporting makes it difficult to investigate the propriety of a use of force."
Backe, O'Balle and three others were charged with felony resisting arrest, but a grand jury declined to indict them. Backe pleaded no contest to a misdemeanor charge and was fined $1 and court costs.