Woman suing city, APD, claims wrongful arrest

bbrasch@adn.comDecember 26, 2013 

A lawsuit filed against the city accuses an Anchorage police officer of falsely arresting a woman for drunken driving after she wouldn't give him her phone number.

Nancy Means asserted in the lawsuit that officer David Burns falsely arrested and defamed her two years ago, when she was 18. Means is asking the municipality to scrub any trace of the case from her record.

A city attorney argued in a letter that even though the city didn't prosecute Means, who was found to have a blood alcohol level of zero, that doesn't mean her arrest was a false accusation.

Jennifer Castro, Anchorage police spokeswoman, said the department can't comment on the open lawsuit. She said Burns is still with the department.

The lawsuit stems from an incident on Nov. 25, 2011. Burns saw a snow-covered minivan with its hazard lights flashing at 3:40 a.m., according to his report.

Burns found Means and three passengers in the disabled 1992 GMC Astro minivan near Tudor Road and C Street, according to his report. The high school friends were Black Friday shopping, according to the lawsuit.

Burns said in his report he smelled "the slight odor of alcohol coming from her."

Burns then asked Means for her driver's license and insurance information, which she gave him, but when he asked for her phone number, she refused, according to Burns' report.

Means perceived the officer asking for her phone number as an "untoward sexual advance by Burns," according to the lawsuit.

Means told the officer she wouldn't answer any other questions without her lawyer, according to Burns' report and the lawsuit.

Burns arrested Means on an operating a vehicle under the influence charge and impounded the van, which is owned by her father, Norman Means, according to Burns' report.

The lawsuit asserts that Burns "inexplicably" asked for Means' phone number.

The lawsuit claims that asking for the number was a "departure from routine procedure for an officer contacting a stranded and disabled vehicle."

The lawsuit also notes that the incident happened nine months after Anthony Rollins was sentenced to serve 87 years for raping six women while on duty as an APD officer.

Assistant municipal attorney Pamela Weiss said in an interview that even after she listened to an audio recording of the arrest, she doesn't know how Burns' actions could be considered a sexual advance.

She said officers often get phone numbers from people they talk to in case they need to ask them a follow-up question.

"It's not unreasonable to get contact information from a person whom an officer has made contact with," she said.

When officer Thomas Gaulke tested Means' breath at the police station at 4:42 a.m., he noted in his report that he didn't smell any alcohol on Means or see signs that she was intoxicated.

"Ms. Means did not appear to be under the influence of any drugs," according to Gaulke's report.

Means had a blood alcohol level of .000, according to his report.

A bail hearing was held before a magistrate and she was released. City prosecutors decided to not prosecute the case several weeks later, on Dec. 21.

The issue presented in Means' lawsuit is the fact that her arrest, for an unspecified misdemeanor charge, is still in court records, making it available on the Internet for anyone to see. During an administrative hearing on the day the case closed, Norman Means argued that Burns didn't have probable cause to seize his vehicle, and the hearing officer agreed, according to a record of the hearing.

An officer needs probable cause of a crime to impound a vehicle, said KeriAnn Brady, Means' lawyer.

The hearing officer said "there were no reports of seeing Ms. Means driving in a manner that would suggest she was driving under the influence."

The lawsuit says the charge "creates a blemish on what otherwise remains stellar record."

Dennis Wheeler, the municipal attorney, wrote that he stood behind Burns in a response to a lawyer-written letter asking for the city to seal Means' criminal charge.

Wheeler wrote on Nov. 1 that the city would "mount a vigorous defense" if sued.

"The officer had probable cause to believe she had committed some crime and the arrest was proper," Wheeler wrote.

But just what that crime was remains a point of contention between the two parties.

"You'd think after two years they'd be able to figure out what that crime was (and if) that was an arrestable offense," he said.

 

Reach Benjamin Brasch at bbrasch@adn.com or 257-4349. Twitter: twitter.com/ben_brasch

 

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