Ocean City Faces Two Lawsuits Alleging K-9 Attacks

Two separate lawsuits accuse the Ocean City Police Department of using excessive force with its K-9 dog, and City Council met recently in private to discuss the ongoing litigation — often a signal that the governing body is considering a monetary settlement.

In each case, police reports describe the department's K-9 German shepherd Deuce apprehending a fleeing or combative suspect in what it considers an appropriate manner.

But because of the cost of a civil trial, the public may never get to hear the merits of the case argued in court. It's often more cost-effective for the city to pay a settlement that ends a lawsuit before it goes to trial.

In any scenario, Ocean City taxpayers pay the bill for the legal expenses involved in defending the city and its employees against lawsuits. 

Ocean City recently paid to settle lawsuits filed by a former Ocean City Beach Patrol member($50,000), an Ocean City Fire Department captain ($222,624) and three former Sanitation Department workers ($83,000 apiece). The city faces a lawsuit filed by a West Atlantic Boulevard resident after a confrontation with an Ocean City police officer. The city paid a former Ocean City Beach Patrol captain $450,000 in an age-discrimination suit and is now considering a second lawsuit related to the man's pension.

City Council met in executive session on Sept. 25 to discuss seven of the lawsuits.

JEFFREY MOYER VS. CITY OF OCEAN CITY

In a lawsuit filed in November 2010 (see attached PDF for full text), Jeffrey Moyer accuses the Ocean City Police Department of letting Deuce cause "severe injury" after biting him in the groin and shoulder.

"Moyer did not have any weapons in his possession, and was not acting in a violent or threatening manner so as to require the use of a K-9 dog for his apprehension," according to the lawsuit, which was filed by James H. Moore of the Wildwood firm Barry, Corrado, Grassi and Gibson.

The lawsuit says police responded to a reported disturbance at 830 Plymouth Place on Sept. 3, 2009.

The suit does not describe the disturbance but says that "during the course of the encounter, Deuce apprehended the plaintiff."

"Deuce initially bit plaintiff's groin area, causing severe injury," the lawsuit alleges. "Deuce subsequently released plaintiff's groin area and bit plaintiff's left shoulder, also causing injury."

Moyer was later transported to Shore Memorial Hospital for treatment of his injuries.

The lawsuit also names Patrolman John Vogt and Sergeant John Mazzuca as defendants. Vogt is Deuce's handler, and the suit accuses Mazzuca of failing to object to the "attack."

The suit suggests the city fails to properly hire and train its K-9 officers, and the suit says Moyer's Fourth Amendment rights against the use of excessive force were violated.

The suit seeks compensatory and punitive damages and attorney's fees.

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Police incident and arrest reports paint a different portrait of the events of Sept. 3, 2009.

The documents (see attached PDF for full text) state that officers were responding to a report of a female screaming in an apartment at 830 Plymouth Place — something they considered a possible incident of domestic violence.

Patrolman John Porreca said he heard screaming and the sound of things being thrown or knocked over coming from within the apartment. As he knocked and looked through a door window, he could see a woman lying on the floor crying with a man crouched over her yelling, according to the reports.

Porreca, Vogt and Deuce entered the apartment through the unlocked door and encountered a visibly intoxicated Moyer, yelling and swearing at them as he approached Vogt and Deuce, the reports state.

The officers succeeded in getting Moyer to sit on a couch, but he swung an open door that struck both Deuce and Vogt, according to the reports.

The officers then notified Moyer that he was under arrest. The report suggests that Moyer refused to follow orders to get on the ground — while the female then tried to interfere with the arrest.

With Porreca now trying to control the female, and Mazzuca (who had also responded to the initial call) struggling in a physical confrontation as he tried to handcuff the suspect, Moyer was advised by Vogt, "Stop resisting or I will release my K-9," according to the reports.

At that point, Deuce was released and he bit Moyer first in the groin area then in the shoulder.

Moyer was taken outside for treatment by the Ocean City Fire Department and for transport to Shore Memorial Hospital.

Moyer was later charged with simple assault, injury of law enforcement animals, aggravated assault, resisting arrest and disorderly conduct, according to the police reports.

Narratives from the different officers at the scene provide consistent detail.

Patrolman Doug Varnold was assigned to guard Moyer in his room at Shore Memorial Hospital. He reports that medical personnel instructed Moyer to keep his wounds clean, and they released Moyer from the hospital the day after the incident. The hospital recommended letting Moyer stay home instead of in jail, and a judge agreed to permit it. Moyers was released from the police station and walked home, according to the police reports.

In questioning on the night of the incident, the female (who also appeared to police to be highly intoxicated) at first suggested to police that Moyer was helping her after she accidentally got an alcoholic drink in her eye, but she later admitted that they had been fighting and that Moyer had punched and pushed her, according to the police reports.

An upstairs neighbor confirmed to police that he heard screaming and fighting in the apartment below. The neighbor overheard the female saying to Moyer, "Get your hands off my neck," according to the reports.

In his required report on the K-9 apprehension, Vogt said he considered the following factors in using Deuce:

• Severity of the crime: Aggravated assault on a police officer and K-9 dog and possible count of domestic violence assault.
• Immediate threat: A suspect 5'8" and 175 pounds who was under the influence of alcohol or drugs in a home that may or may not have contained weapons and who had "already assaulted my K-9."
• Resisting arrest: "The suspect was actively resisting arrest and attempting to assault us by flailing his arms about and he was refusing to comply with any of my verbal commands."

Vogt said he released Deuce after warning Moyer that he would, and Deuce "immediately apprehended him in the area of the waist" (Vogt's report later acknowledges that injuries were to the "genital area.").

Vogt again commanded Moyer to get on the ground and place his hands behind his back.

"It then appeared that Moyer lunged at my K-9 in an attempt to injure him by landing on him with all of his body weight," Vogt reported.

That's when Deuce "re-apprehended (Moyer) in the area of his left shoulder and held until Moyer would comply."

Deuce was later evaluated at the University of Pennsylvania Veterinary Hospital and found to be uninjured.

ROBERT PETNICK VS. CITY OF OCEAN CITY

In a lawsuit filed Dec. 16, 2011, Robert Petnick accuses the Ocean City Police Department of using excessive force in his arrest.

On Feb. 26, 2010, Ocean City police officers were responding to a notification by the New Jersey Intensive Supervision Program that Petnick had an outstanding warrant and that he was likely to be found at 2336 Simpson Ave., according to the lawsuit. Officers found Petnick running down the alley between Simpson and Bay avenues on the 2300 block, the suit says.

Petnick, 46, is 6'1" and 180 pounds, according to the New Jersey Department of Corrections, which has incarcerated him twice on charges that include bail jumping, theft and possession of a controlled dangerous substance.

In the lawsuit, Petnick says he was apprehended and held at gunpoint. He claims he was dragged on the alley and that officers released the K-9 dog Deuce even though he was not resisting arrest at the time.

"The dog bit the plaintiff on the left hand and fingers causing plaintiff to suffer physical and emotional injuries," the suit says.

The suit claims Petnick's constitutional protection against the use of excessive force was violated. It also claims the city tolerates such actions.

"Defendant Ocean City's indifference is demonstrated by a pattern carried out by officers and the failure of Internal Affairs to investigate and sustain legitimate and bona fide instances of assault," the suit claims.

The suit was filed in Superior Court in Cape May County, but it was moved to U.S. District Court in Camden because it involves constitutional questions. Aaron T. Penrod of the Wildwood law firm Barry, Corrado, Grassi and Gibson filed the suit on behalf of Petnick.