Prosecutors won’t charge officer in punching of cuffed suspect

Keith Paul

Thursday, Feb. 28, 2002 | 11:02 a.m.

Prosecutors Wednesday declined to file charges against a Metro Police officer seen on videotape punching a handcuffed suspect, claiming the officer's actions were not only not criminal, but also "lawful and appropriate."

District Attorney Stewart Bell and a team of prosecutors reviewed the videotape and other evidence of the Nov. 7 scuffle between Officer David D. Miller and a handcuffed Frankie Davis inside the Las Vegas Club. Davis suffered a fractured vertebra in his neck.

"After thorough and careful review of the actions of Officer Miller, we find none of the officer's actions to be criminal," Bell said in the letter.

Miller, who was relieved of duty with pay, still faces an internal investigation into the incident. His supervisor, Sgt. Leonard Marshall, is also on paid leave, pending an investigation that he knew of the incident but did not report it.

The department and Miller, 26, an officer for two years, also face a federal civil suit Davis filed in January.

Davis' attorney, Barry Levinson, said he was disappointed by Bell's decision not to prosecute.

"We're discouraged they are not prosecuting even for a simple battery," he said. "He was handcuffed on the floor when he was punched. If they can't even get him for a simple battery, we are very discouraged by the system."

Bell said in his letter that the "single short jab to the side of Davis' face" was a response to Davis continuing to struggle with the officer.

"Careful review of the video surveillance tape shows Davis kicking Officer Miller during this procedure," Bell wrote in the letter. "Each action of Officer Miller was a reasonable and lawful response to provocation or action by arrestee Davis."

Bell also said Davis' injury was likely caused by him struggling with the officer. He noted that the videotape does not show Davis hitting a wall, but said witnesses other than Davis said consistently that Davis pulled away from Miller and, when the two men spun around, Davis went head first into a wall, likely causing the injury.

In the letter Bell talked about something seen falling from Davis' pocket and noted that while it was never determined what it was, "our collective best guess is that the item which dropped from Davis' pocket was an item of contraband that Davis was attempting to keep Officer Miller from recovering."

Gary Peck, executive director of the American Civil Liberties Union of Nevada, said the letter appears to be written with the knowledge that Metro and the county could face a lawsuit.

"I am hardly surprised the district attorney has made this decision and has gone out of his way to justify the behavior of the police officer," Peck said. "It should be obvious this document was written in a context where a civil lawsuit has been filed."

Peck said the decision not to prosecute falls in line with the track record of the district attorney's office.

"It is difficult for me to imagine a situation where it would be appropriate for an officer to strike a suspect in the head when a suspect is handcuffed behind his back and facedown on the floor," said Peck, who added that he has not seen the videotape of the incident.

A police union lawyer maintained that Miller did nothing wrong.

"A person can still be dangerous even when handcuffed," John Dean Harper, an attorney for the Police Protective Association, said. "This gentleman was combative and was still kicking. The key was this wasn't excessive force, it was proper force."

Metro officials declined comment on the decision, because it is the subject of litigation.

The incident at the Las Vegas Club occurred in November but Metro officials say they didn't learn of the it until December. Police are investigating whether Marshall, an officer for 6 1 / 2 years and a newly promoted sergeant at the time, failed to tell his superiors.

After Davis' November arrest, he was taken to the Las Vegas jail, where he complained of pain. City jail officials took him for medical treatment and investigated the injury. The investigation led to the Las Vegas Club and the videotape, which jail officials told Metro about in a December letter.

Davis acknowledged he was homeless and had been staying in a stairwell at the downtown hotel-casino when security officers found him.

Davis has served time in a New York prison for a drug-related conviction. He did not register as a convicted felon with Metro, as required.