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Did the police violate Carolyn Mitchell's rights?

Debra McKinney

From the sound of it, Carolyn Mitchell will never get over how a shopping trip to buy shoes for a church banquet ended up with her being stopped at gunpoint and handcuffed as a bank robbery suspect.

In front of her 12-year-old son. In front of everybody who drove by the Sears mall that afternoon. In front of everyone who caught the Channel 2 evening news.

But the people on the other side of the guns and cuffs believed they were dealing with a possible bank robber, someone who could be armed and dangerous. The rules are very clear in that kind of situation, police officials said. They have to make sure they, and everyone around them, is safe. There's no reasonable alternative, they say.

It all happened May 8, 2004.

Mitchell, an Anchorage businesswoman and mother of two, said the ordeal terrified and humiliated her. She sued the municipality and police officers involved for false arrest, defamation, intentional infliction of emotional distress and violation of her civil rights. She sought compensatory damages, punitive damages and attorney's fees in excess of $100,000.

Her claims went up against police policies and procedures. The officers involved, as well as those they answer to, testified that they handled the initial stages of the robbery investigation with safety as their top priority. They did things by the book. Nobody got hurt and the real robber was ultimately arrested.

Mitchell argued that she most certainly was hurt. Maybe not physically but in other life-altering ways.

For the most part, the jury didn't agree. She lost, and lost big.

Even though the judge sided with her in her false arrest claim, in a separate proceeding held several months later, a jury awarded her just $1 in damages. Of the remaining claims, the jury went with the defendants. In the end, the judge declared the municipality the legal winner.

Just when Mitchell didn't think it could get worse, it did. Now, more than four years later, the court ordered her to pay the cost of the trial, including the city's lawyer fees -- $45,594.

Minus that $1 false arrest award.

"No one will be able to make me understand it," Mitchell said. "This is the price you pay as a citizen for taking them to court. I feel like I'm being punished."

OUTING FROM HELL

Here's what happened and why according to interviews and court documents. First, from Mitchell's perspective.

She and her family were immersed in a church conference in the days leading up to the incident. The afternoon of the formal banquet, with her son Damarcus in tow, Mitchell went to Sears to look for shoes and an outfit for her daughter, Neisha. After paying, she headed for the door to the parking lot on Northern Lights. Just before the lingerie department, police officers with weapons drawn came down the aisles and motioned for the two of them to turn around and go the opposite direction.

"My son, he was 12 years old at the time, and he was afraid," Mitchell said. "He thought it was a bomb threat. He said, 'Mom, we got to hurry up and get out of here.' "

They scurried out the main door and into the mall as directed. Along with other shoppers, they were ushered down the hallway to the door facing Benson Boulevard. There, they were met by officers pointing Remington 870 shotguns at them. Everyone move aside, one said, except for "the African American female."

"I'm looking around," Mitchell said, "and my son and I were the only African Americans."

"We're holding hands and I'm scared," said Damarcus, now 17. "We don't know what's going on."

What was going on, and what they wouldn't learn until later, was an attempted robbery at the Wells Fargo bank down the mall. Officers thought Mitchell fit the suspect's description.

"They ordered my son to move out of the way," she said. "They were so harsh. I kept asking, 'What did I do?' What did I do?' "

While another gave him cover, an officer ordered Mitchell to drop her purse, drop her shopping bag, turn around and put her hands in the air.

"I kept saying, 'Oh my god, WHAT did I DO?' "

He then ordered her to start walking backward, to drop her hands and put them behind her back.

She did as she was told.

"I dropped my hands and they put handcuffs on me. Then they started asking me, did I have any weapons? And they started pat-searching me."

They looked through her shopping bag. They dumped the contents of her purse on the back of a police car. They found her military ID card -- her husband, Eddie, was on active duty at the time -- and ran it through the system.

Mitchell, worried sick about her son, asked if he could use her cell phone to call his dad.

They wouldn't allow it.

After they found no weapons, she asked if they could take off the cuffs; they were hurting her wrists.

The answer was no.

Then the officers moved her out to the corner of the Sears automotive section, not much more than a car's width from traffic on Benson.

On display is how she felt.

"I'm right on Benson in handcuffs," she said. "They had me standing there, and all of the people driving by, they were gawking at me. Oh my god, so embarrassing.' "

Charlotte and Jerard Lecato were among those passing motorists who slowed down to see what all the fuss was about.

"The parking lot was full of police and weapons were out," Jerard Lecato recalled. "As we were going by, I looked over and ... 'Wait a minute, that looks like Sister Mitchell over there. Yeah, and that's Damarcus.' "

The families knew each other from church. The Lecatos pulled over.

"I asked Sister Mitchell if she was OK," Jerard said. "She said, no she wasn't, and she was crying.

"Damarcus, he was really shook up. And he was crying."

Mitchell stood on that corner for at least 20 minutes, she said, until the bank teller came to take a look and said she wasn't the one.

"(The officers) came over, they gave me my purse, they gave me my bag, they undid my handcuffs and told me I was free to go."

They never did apologize, she said.

That night, Channel 2 showed footage of the scene, which included Mitchell standing, hands behind her back with two officers. Although not identified by name and shot at distance that mostly obscured her face, she believes she was recognizable to anyone who knew her. She was mortified.

ARMED and DANGEROUS

From the law enforcement prospective, here's what went down and why.

After the call came in, cops swooped upon the Mall at Sears from various directions interviewing witnesses, looking for the bank robber and getting the public out of harm's way.

Witnesses described the suspect as a heavyset African-American female in her 30s wearing a dark blue shirt, dark sunglasses, a black headband or bandana, tennis shoes and carrying a dark bag. Since the robber claimed to have a gun, that meant the suspect was considered armed and dangerous.

Mitchell, 45 at the time, was smaller and wearing a white, nylon jogging suit with a light blue shirt underneath. She was carrying a purse and a white Sears bag, and was with a child.

When a serious crime has just occurred, information is usually limited, Anchorage Police Department Senior Patrol Officer John Daily explained in an affidavit. Officers are trained to be suspicious of what they hear from dispatch, which almost always is second- or third-hand.

"Eyewitness descriptions of suspects are never perfect and are sometimes quite inaccurate."

Plus, a crime like bank robbery is usually pre-planned.

"We have had dozens of incidents in which the robber not only had accomplices and a getaway plan, but also had alternative clothing, sunglasses and the like stashed nearby for a quick change. ... We may expect one thing, but we have to be prepared for the unexpected."

In a situation like this, where the robber said she had a gun, there was no taking chances.

"The Court has the benefit of knowing, now, that Ms. Mitchell was not the armed bank robber," APD Capt. Bill Miller said in an affidavit of his own. "The officers did not have that luxury, and it was their job to proceed on the assumption that she was dangerous."

Going down Mitchell's list of grievances, the handcuffs were for safety, Miller explained. For the safety of the officers, the safety of the public, and the safety of the suspect, who might try to escape.

"To remove handcuffs after a weapons check, or because the suspect seems like a nice lady who wouldn't hurt anyone, is a big mistake, and we train our officers accordingly," Miller stated. "... This is the kind of slipup that gets officers killed."

The force used was not disproportionate to the risk reasonably foreseen at the time, the city argued.

As those who testified explained, Mitchell's son wasn't allowed to use her cell phone because he could have been calling an accomplice. And Mitchell was not held in the backseat of a police car, which would have protected her from public view, for a good reason.

Mitchell, as well as three other suspects that afternoon, were being held until the bank teller could do a "show-up," a law enforcement term for eyewitness identification. Having Mitchell in a police car could have created bias that she was the one.

As for false arrest, Mitchell was not arrested, Miller insisted. She was legitimately detained during the investigation of a crime.

"At such a crime scene, unfortunately, sometimes a citizen's freedom and convenience have to temporarily take a back seat to public safety."

Police caught the real robber, Cynthia Washington, on Fourth Avenue that same evening, dressed in dark clothing with a black wrap on her head, just as the teller described. She later pleaded guilty to bank robbery.

Walt Monegan, police chief at the time, wrote Mitchell a letter offering "a belated 'Thank you' " for her cooperation and a personal apology on behalf of the department for any embarrassment she and her son endured.

In the letter, Monegan acknowledged that the officers never apologized nor adequately explained why she was being detained.

"This was not in keeping with department policy and undoubtedly made the incident more stressful and upsetting for you than it already was."

Mitchell said she appreciated the letter, but it came nearly seven months after the fact. And it didn't say anything about holding her in handcuffs with guns drawn being wrong. She filed her lawsuit a few weeks later.

AND ON IT GOES

Father and son attorney team, Moshe and Isaac Zorea, represented Mitchell in her suit against the city, APD, Monegan and officers Ross Henikman and Justin Voss, the two directly involved.

In her written statement, Mitchell states that while she was being held, she felt her and her son's lives were in jeopardy. "Innocent people get shot all the time."

"I couldn't sleep at night," she said of the aftermath. "I would wake up with guns in my face. ... I'd wake up screaming and my husband had to hold me to go to sleep."

A beautician, Mitchell told the court she was too embarrassed to go back to work and had to cancel a week-and-half's worth of appointments. She also claims being mistaken for a bank robber cost her clients.

She said people saw her on the evening news. She said she had to go to counseling. She was so traumatized, she said, that she changed the locks on her doors and still can't think about that day without crying.

She thinks the incident has deeply impacted her son.

She was treated the way she was, she believes, because of the color of her skin.

Federal District Judge John Sedwick ruled in her favor on the false arrest claim, that what the officers did went beyond an investigatory stop as the city argued.

The judge threw out the claim of intentional infliction of emotional distress before sending the rest of the case to the jury.

After listening to arguments from both sides, the jury decided Mitchell's attorneys failed to prove damages in spite of the false arrest. As for the remaining two claims, the jurors didn't find extreme or outrageous police conduct and denied them as well.

"I had this all-white jury," Mitchell said. "I didn't have a jury of my peers."

Since overall the defendants won, the judge, as with most civil suits, said the loser had to pay the winner's attorneys fees and other court costs. In his order, Sedwick tacked on $5,000 for what he called "the unreasonableness" of Mitchell's claims.

"He feels as though my case was frivolous," Mitchell said. "He felt as though I was playing the victim."

She's right. He did.

"Mitchell sought to play the role of the victim of outrageous official behavior warranting an award of punitive damages," Sedwick wrote, "when in fact she was simply a citizen caught up by chance in an effort to protect public safety and apprehend a bank robber...

"Mitchell herself did not act vexatiously or in bad faith. She had a very frightening experience. She felt wronged. She sought help from her lawyer. Unfortunately, her lawyer did not help her understand that sometimes the price citizens must pay to protect society from dangerous criminals is exposure to frightening situations."

Mitchell and her family are devastated by the ruling. And they now owe an awful lot of money. But it's not over.

Her case is headed to the Ninth Circuit Court of Appeals.

"I'm just really, really tired," she said. "If it wasn't for God, I wouldn't be standing."

Find Debra McKinney online at adn.com/contact/dmckinney or call 257-4465.


By DEBRA McKINNEY
dmckinney@adn.com