Telegram & Gazette - August 4, 2020.
WORCESTER – A former city man accused of assaulting a police officer last year during a melee at the Beer Garden is suing the Police Department after obtaining a video that contradicts the police report the officer filed in court.
Prosecutors dismissed all charges after reviewing the video, which captured a materially different version of events than the one K-9 Officer Shawn Tivnan swore to in his report.
“If the video hadn’t existed, it would have been their word against mine,” 24-year-old Christopher Ayala-Melendez said Tuesday. “It would have changed my life.”
Ayala-Melendez was arrested outside the Beer Garden at 64 Franklin St. on Oct. 26, the night a large fight led police to make the rare ask that all hands on deck report to a call.
Tivnan alleged that the man – who, according to the lawsuit, lived at an apartment at 60 Franklin St., and was trying to get home – assaulted him. The video tells a different story.
“This case shows how easy it is to become ensnared in the criminal justice system,” said Hector E. Pineiro, the man’s lawyer.
According to the official report Tivnan filed in Central Court, the 11-year officer was standing next to another police officer with his police dog when a man later identified as Ayala-Melendez “pushed past officers” and was yelling toward arrestees.
The man refused lawful orders to leave, Tivnan alleged, offering a detailed description of a confrontation in which he alleged Ayala-Melendez “broke free” from his grasp, “came at” him and his dog “aggressively” and “assaulted” the officer.
Tivnan alleged he had to deliver a “palm heel strike” to gain control, at which time the dog bit Ayala-Melendez, who, despite being bitten, “refused” commands to go the ground, and had to be converged upon by officers.
One of those officers, Brett J. Kubiak, partially corroborated Tivnan’s report, writing that Ayala-Melendez “refused” commands to lay down and “continued to swing his body violently” while being bitten by the dog.
Both officers would have been asked to testify to such in court, it appears, had Ayala-Melendez not dug up video himself that shows a vastly different story.
“I was just trying to go home,” Ayala-Melendez, a foreman for a moving company who said he’d never been arrested before, told the Telegram & Gazette on Tuesday.
Ayala-Melendez told the T&G, and the video confirms, that he was not pushing past or yelling at officers when he walked up to an officer and pointed in the direction of his apartment building.
Ayala-Melendez said he pointed at the building because he and his girlfriend, who can be seen next to him in the video, had been out for a walk, and were trying to ask whether they could go home.
Ayala-Melendez told the T&G that no one gave him any orders or accused him of doing anything wrong. He said that shortly after asking about his building, he was tugged to the left by Tivnan, at which point, he said, his memory is a blur.
The video shows Tivnan grabbing Ayala-Melendez almost immediately after he pointed to his building, at which point the dog bites the man, who stammers and is quickly taken to the ground by police.
The video shows the man’s girlfriend walking toward him after he is bitten, at which time a police officer pushes her to the ground.
Ayala-Melendez said he sat in a jail cell for more than an hour before being booked, wondering what was going to happen to him. He was not taken immediately to the hospital – which his lawyer said violates Police Department policy – and a booking tape shows him alleging excessive force while being processed.
Ayala-Melendez said he went to the security desk at his 60 Franklin St. apartment building the day after being released, and he and staff there were able to find the video that depicts what occurred.
Ayala-Melendez said he was “outraged” when he read the officer’s version of events. His defense lawyer gave the video to prosecutors for District Attorney Joseph D. Early Jr., who, on June 16, asked a judge to dismiss the charges, citing “a review of the currently available evidence in this case, including police reports and video surveillance tapes.”
Early declined to comment on the case through a spokeswoman Tuesday, noting the case is “before the court in civil litigation.”
The case has been filed in federal court in Boston.
Police also declined to comment, citing the litigation. They confirmed that Tivnan is still a K-9 officer.
Early’s spokeswoman declined to say whether Early had placed Tivnan’s name on any list of officers found to have credibility concerns.
Such lists, known as Brady or Giglio lists, are under scrutiny in the wake of calls for police accountability following the death of George Floyd. Middlesex District Attorney Marian Ryan released her list recently after a public records request.
Early’s office Tuesday declined to say whether he maintains such a list.
Ayala-Melendez’s lawsuit alleges seven counts, including excessive force, malicious prosecution and violation of his civil rights. It alleges the conduct occurred as a result of a culture of impunity in which officers knew they would not be punished for misconduct.
Ayala-Melendez’s lawyer, Pineiro, says the episode is a case in point for why body cameras should be worn by police officers. He has frequently accused police of fabricating accounts, including in a voluminous 2018 complaint to Early.
The T&G is suing the city of Worcester for records relating to that complaint. The city has argued they should not be released - noting some correlate to civil lawsuits Pineiro filed - and has criticized the T&G in court documents as requesting them under the “guise” of watchdog journalism.
City Manager Edward M. Augustus Jr., who has declined to speak publicly about the T&G lawsuit, said through a spokesman Tuesday that he was not aware of the Ayala-Melendez case.
Ayala-Melendez, who said he sped up a move to Chelsea in the wake of his arrest, has had trouble sleeping, had nightmares and been afraid of police officers and dogs since his arrest, his lawsuit says.
Ayala-Melendez told the T&G it was difficult to see his name sullied in online commentary after the charges were announced, saying he was lumped in with others directly involved in the fight.
“People were making me out to be a villain who attacked a dog and an officer,” said Ayala-Melendez, adding that even his own parents did not fully believe he had done nothing wrong until they saw the video.
“You always hear the comment made saying, ‘Police are not going to arrest you if you are not doing anything (wrong),’” he said. “But in this case, that’s what happened.”
Pineiro said he believes police internal investigators are looking into the arrest, but that based on past experiences with the department, he is not confident a full inquiry will be conducted.
Pineiro alleged in the lawsuit that officers being investigated are often allowed to submit written statements rather than be questioned in person, while those who make the complaints are “subject to adversarial interrogation” by WPD officers.
Pineiro said many complainants have criminal charges pending against them, and elect not to speak to investigators, which he said often results in officers being cleared of wrongdoing.
Ayala-Melendez said an internal affairs investigator called him a couple months after his arrest, but that with his criminal case still open, he referred the officer to his lawyer.
“I really didn’t want anything to do with the Police Department after (what happened),” Ayala-Melendez said, adding that he does not know whether police ended up speaking to his criminal lawyer.
That lawyer, James J. Gribouski, did not immediately return a request for comment Tuesday.
Pineiro alleged multiple Police Department policies were violated in the case with respect to the use of the dog. He said the department lists use of a K-9 dog as a higher use of force than anything other than a firearm in its K-9 policy, and he wrote in the lawsuit that Tivan’s actions might be viewed very differently had a more conventional weapon been used.
“If Officer Tivnan instead of deploying K-9 Mattis had opted to use any type of knife or sharp instrument to cut or slash Ayala Melendez in manner similar to the injury K-9 Mattis caused, such conduct would amount to the crime of aggravated assault and battery with a dangerous weapon,” he wrote.
