Lawsuit: Curbside cuss-out ended in police brutality

FREDERICK SMITH was miffed.

You'd be, too, if you parked your car at the curb, walked immediately to the parking kiosk to pay and returned seconds later to find a meter maid writing a ticket.

Smith used some unpleasant language on that hazy May 19 afternoon at 12th and Chestnut in Center City. The Philadelphia Parking Authority ticket-writer, no doubt used to foul-mouthed freak-outs, calmly explained that the ticket was for expired inspection stickers, rather than any parking offense.

But a bicycle cop nearby was not nearly so unruffled, Smith said, and a back-and-forth, increasingly profane barrage of insults erupted between Smith and the cop. Passers-by slowed, as eager to watch as kids gathering around a schoolyard brawl.

And they got an eyeful. Officer Allen Marsh Jr. demanded Smith, 55, a West Philly grandfather of six, put his hands behind his back - and then slammed Smith into his own car so hard Smith's body dented the metal and his head cracked a cobweb of splintered glass in the windshield, according to witnesses.

As Smith swayed on his feet, disoriented, Marsh then handcuffed and arrested him for disorderly conduct, resisting arrest and failure to disperse. Smith, who is diabetic, spent nearly a full day in police custody, including two handcuffed trips to the hospital for health issues.

One month later, Smith has paid the parking tickets. He has also filed a lawsuit. In a federal civil-rights complaint, Smith accused Marsh and the city of excessive force, false arrest, false imprisonment, malicious prosecution and abuse of police powers.

Lt. John Stanford, a police spokesman, hadn't heard about the incident, saying: "All complaints of misconduct are investigated by the department. Therefore every citizen has the right to file a complaint if they believe that some course of misconduct has taken place."

Smith still must go to court July 24 for his criminal case.

One look at Smith's 2000 Subaru should be enough to prove the brutality claim, Smith's attorney Michael Pileggi said.

"It looks like somebody hit it with a sledgehammer," Pileggi said. "It's clearly a case of excessive force. There was no need for any force at all in this case."

Like any dispute, the details differ, depending on who's telling the story.

In his incident report, Marsh wrote that Smith told him: "I'm not scared of you. That's why we killing y'all now. I'll knock you the f--- out. You better get the f--- off me before I knock you the f--- out, you b---- a-- cop, f--- you!"

As he pushed Smith against his car to handcuff him, Marsh wrote, Smith "bumped into windshield, causing it to crack."

Smith denies threatening Marsh - and he wasn't criminally charged with making threats.

Whatever the content of the conversation, one free-speech expert said such crass contempt and criticism of cops isn't illegal - and isn't grounds for arrest.

"There is no such thing that you have to talk politely to a cop. You have a First Amendment right to say whatever you want to a cop. The most important right we have is the right to talk back to the government," said Burton Caine, a Temple University law professor and former president of the American Civil Liberties Union's Philadelphia chapter.

"You can say: 'F--- you!' to a cop. The cop should then say: 'You have a First Amendment right to say that. I am a law-enforcement agent, and therefore it is my duty to protect your First Amendment rights, no matter how much I abhor it.' There are no exceptions to the First Amendment, but it is the most ignored provision in the Constitution of the United States."

A calm approach is key for officers encountering angry citizens, said Thomas Nestel, chief of SEPTA's transit police who has been in law enforcement for more than 30 years.

"When a person is so upset, that person is going to calm down quickly if you do not reflect back the anger," Nestel said. "It's going to settle down, as long as we don't escalate it. If police become the person that they're mad about, then we haven't succeeded."

The Smith arrest wasn't the first time a citizen has accused Marsh, who has been on the force nearly 13 years, of brutality and profanity. Five people have filed complaints against him, including one who said Marsh punched him in the chest and others who accused him of cursing at them, according to police records. In an interview with Internal Affairs detectives investigating a 2012 complaint, Marsh's explanation rang familiar: He told them his accuser said: "That's why they killing y'all now."

None of the complaints was sustained.

With three college degrees in fields like criminal justice and behavior analysis, Smith is a child therapist who counsels troubled kids. In his encounter with Marsh, he admits he didn't practice what he preaches.

"That's the one thing I tell them not to do: Engage officers," Smith said of his patients. "But to me, it's about principles. I'm not perfect. But I didn't expect a cop to say something so inappropriate. I'm old enough to be his dad, and I was raised to be respectful to my elders. And he was on a power trip, taking advantage of someone less powerful than him. It was wrong."

Smith's wife, Vera, 62, who witnessed the incident, agreed: "If you're an officer, you have to be an example. My husband never threatened him. He just gave him a verbal lashing. That didn't warrant how my husband was treated."

Blog: phillyconfidential.com