Misplaced tape played in trial of suit against police

Jace Radke

Tuesday, Sept. 7, 2004 | 9:38 a.m.

A 64-second audiotape recorded minutes after an 84-year-old man was pepper-sprayed and taken to the ground by a Henderson Police officer is mostly unintelligible.

The tape was played for U.S. District Judge Philip Pro Friday, and it was clear that Charles Walker, now 86, was moaning on the tape and that an officer was asking Walker if he was OK and telling him to sit down and not to move.

Walker, who suffered broken ribs and a broken hip during his July 21, 2002, arrest, has filed a federal civil rights lawsuit against Henderson Police Officer David Tomlinson, alleging that the officer used excessive force during the traffic stop in downtown Henderson.

The tape, recorded by another officer who arrived at the scene near the corner of Army and Market streets, had been missing but was found last month in an unrelated case file, police said.

The tape contained other recordings, including one that involved another case, and thus it was placed in that file, said Walt Cannon, Tomlinson's attorney.

Walker's attorney, Leo Flangas, asked Pro for sanctions against Tomlinson and the city for failing to inform him of the tape when some officers had known of its existence.

Pro dismissed the motion, which asked for attorney's fees for Flangas, saying that he didn't see any "bad faith or misconduct by the defendant or the city."

Pro said he found that "a mistake had been made" in the filing of the tape, resulting in it not being found right away.

The tape was recorded by Officer Jesse Lujan shortly after Walker was handcuffed after his car was pulled over by police.

Walker's lawsuit alleges that Tomlinson used excessive force when he pepper-sprayed Walker and threw him to the ground. Police maintain that Walker yelled and swore at Tomlinson and attempted to get back into his car, and that was why the officer pepper-sprayed Walker.

Lujan said he was the third officer to arrive at the scene and turned on his tape recorder to make a record of what was going on as he helped to escort Walker to the front of a patrol car.