The Massachusetts Court of Appeals today upheld a six-month jail sentence for Jennifer Garvey, convicted on two counts of assault and battery for pepper-spraying a woman in the eyes at close range and beating her with a baton after the woman tried to comfort another woman who'd been reported as drunk on a bus at the then Dudley T stop in 2014.
Garvey was convicted in 2017.
In its ruling, the appeals court ruled the judge who tried Garvey in a jury-waived trial did nothing wrong in ruling that Garvey attacked Mary Holmes and used excessive force even though Holmes was not yet under arrest and was complying with Garvey's demand to back up when Garvey sprayed her and then beat her hard enough on the legs that she later required stitches.
Garvey's attorney argued that even aside from any problems, the evidence simply wasn't strong enough to convict, that her use of force was, in fact, "necessary and reasonable." The appeals court disagreed.
Officer Curry [another T cop at the scene] testified that, prior to being sprayed, Holmes was not acting in a disorderly manner, was not using abusive language, and did not interfere with the officers' ability to work with Williams [the woman detained as being drunk in public]. Most notably, Officer Curry testified that, pursuant to the MBTA use of force policy, OC spray was only to be used by an officer when a person was engaging in active resistance, rather than passive resistance. Officer Curry, who was present during the event and subsequently watched the video recordings, testified that at no point was Holmes engaging in active resistance sufficient to warrant the deployment of OC spray.
Furthermore, Holmes testified herself that she had not bumped the defendant or interfered with the officers prior to being sprayed.She testified that she was calling911, felt the defendant pushing her back, and despite the fact that Holmes began walking backward on her own, the defendant pepper sprayed her twice in the eyes.Finally, a third-party witness who was present at the scene, Vanessa Ford, testified that Holmes did not hit, bump, or threaten the defendant prior to being pepper sprayed twice in the eyes.The judge not only heard all of this testimony, but he also watched the video recordings of the interaction, which provided four different viewpoints of the event, and heard the audio recording of the 911 call. All of this evidence, and the rational inferences drawn therefrom, viewed in light most favorable to the Commonwealth was more than sufficient for the judge to reasonably find that the defendant's use of the OC spray was unreasonable and unnecessary under the circumstances.
The appeals court made a similar finding for Garvey's other conviction for the baton beating, and said that while people are generally not supposed to fight back when being arrested, and that police are allowed to use a certain amount of force to make a combative person submit to an arrestt, hat wasn't the case here because Garvey didn't tell Holmes she was under arrest until after she'd sprayed her in the eyes.
There was sufficient evidence to show that Holmes's use of force, the flailing and swinging of her arms,was in fact a reasonable reaction to being pepper sprayed. Once Holmes was sprayed in the eyes, the defendant and Officer Trinh immediately grabbed each side of her body. Officer Trinh testified that Holmes began to swing her arms, and ended up striking the officers, although he described the strike he received as "insignificant. " Holmes testified that she was swinging her arms to maintain her balance and remain steady on her feet while the officers were pulling her to the ground. 10She testified that she never intentionally hit one of the officers. The judge, as fact finder, was not required to credit testimony by the defendant or her expert that Holmes escalated the level of force by punching and kicking the defendant, especially where both Officers Trinh and Curry testified to the contrary. Viewing this testimony in light most favorable to the Commonwealth, a rational judge could conclude that Holmes's reaction was reasonable in these circumstances, and was thus privileged by self-defense.
It then follows that the judge could rationally conclude that the defendant's use of the baton was an unreasonable response to the reasonable force employed by Holmes. At trial, the judge had the benefit of watching several video recordings of the encounter between the defendant and Holmes, including the defendant's use of the baton and the events leading up to the several baton strikes. Officer Curry testified that he did not observe Holmes do anything, other than struggle with the officers, that would have necessitated the use of the baton. And again,Officer Trinh testified that he did not deem the use of the baton necessary during that struggle. Where the defendant initiated the encounter with Holmes by using unreasonable and unnecessary force, and Holmes responded to this unjustified force with reasonable force, a rational judge could certainly conclude that the defendant's subsequent use of force --several baton strikes --was unreasonable and unnecessary, and therefore not justified by the police privilege.