Jail takedown leaves man bloodied, raises questions about cops' behavior

(WXYZ) - Fernando Davis says drinking and driving sent him to jail, but sheriff’s deputies sent him to the emergency room.

"They have to pay for what they’ve done," Davis said.

Exactly what sheriff's did is being argued in federal court in downtown Detroit.

On March 24, 2009, the night of Davis’s birthday, he says "I called my cousin and asked if he wanted to have a couple drinks with me. He said 'Yea.'"

And after a few hours at the bar, Davis made a decision that he knows was wrong; he got into his car and started driving home.  He didn’t get into an accident, but he did get pulled over by a state trooper, who arrested him for operating while intoxicated.
Davis agrees; he should have been pulled over.

"You know, people drive under the influence and cause deaths. I understood," he said.

With a blood alcohol level of .19—more than twice the legal limit—Davis was taken to the Genesee County Jail. Surveillance video from that night tells the story.

The sheriff's office at first said the tape didn’t exist, but later produced it when Davis’s lawyers learned it really did.

Deputies booked Davis, then brought him to into general holding cell with other inmates. Surveillance video shows him first standing, then later sitting. Not long after, deputies came to move him to a room they call a “safety cell."

"Their argument was for safety. And they say that they were there to help him," said Davis's attorney Daniel Romano. "And you can see on that video that that’s a strange way of helping."

The jail video shows Davis walking into the one-man cell, where he appears to be listening to the officers. The cameras recorded no audio. After a few seconds, Davis steps forward, putting his hands against the wall.  Then, suddenly, deputies swarm him, forcefully taking Davis to the ground.  In reports and testimony, they would later acknowledge pepper spraying him and delivering hand and knee strikes to his body, saying Davis was resisting them.

"My eyesight was taken away, I had no control over my body," Davis said.  "I don’t know what they did to me, but they were laughing at me. That’s the hurting part."

Davis couldn’t see at the time because deputies pepper sprayed him. When they were done, he can be seen motionless and appears unconscious.

"They just took him down and beat him and beat him and beat him and kicked him and sprayed him and kicked him and sprayed him for no reason," Romano said.

When Davis got up, he seemed disoriented, unsteady and in pain.  He can be seen standing over a toilet...looking at his face in a mirror.  When he leaves, the toilet appears filled with blood. After being released hours later, his wife took him to the emergency room. Doctors found swelling in his head, bruised ribs and torn or pulled muscles. 

Genesee County Sheriff Robert J. Pickell never returned repeated phone calls for this story. His undersheriff told 7 Action News that the department wouldn’t comment while the case was before a judge. But 7 Action News has obtained deputies’ sworn depositions of what happened that night, and their stories often contradict each other or the department’s own video. 

Said one deputy under oath, Davis was removed from the general holding cell for “causing a ruckus,” “getting loud…trying to intimidate” other inmates by “balling up his fists.”  Another had a different version: saying Davis was removed not for anything aggressive, but for taking another inmate’s seat.

Story number three came from then-Undersheriff James Gage. After readings his officer’s reports, he testified Davis “was pounding on the door…and hollering...”, aggravating other inmates.

The video shows none of that. In fact, Davis is inside the general holding cell for barely two minutes. A federal magistrate, who watched the video himself, wrote that Davis “...appears to be nothing but cooperative with the deputies.”

"There’s no combative behavior. There’s videotape of the holding cell, shows him doing nothing wrong," Romano said. "There’s no explanation, at all. Other than bullies".

Once Davis is in the isolation cell, the deputies’ stories still don’t square with the tape. Deputy Terry Cocking said Davis was tackled because he “balled up his fists” and “started coming towards” an officer.  But in the moments before he’s swarmed, Davis’s right hand is clearly visible: it’s open, and against a wall.

Another said when deputies ask Davis to remove his shoes, he made an “aggressive move” to try to escape from the cell.  Again, on tape, Davis appears to be leaning against the wall before deputies take him down. And several deputies testified that Davis aggressively kicked his shoe at the officers, striking one.

"I never kicked my feet, my shoe off at anybody," Davis told Channel 7's Ross Jones.
"Why would they say that?" Jones asked.

"I don’t know...I really don’t have any idea. I never kicked my shoe off at anybody," Davis said.

When the sheriff’s office tried to get the case thrown out of federal court, Judge David Lawson refused, saying “it is not at all apparent” that the shoe was “…kicked with any substantial force, or that it struck anything.”  He went on to say “nothing about (Davis’) demeanor” shows that “he was acting ‘aggressively’ in the moments before deputies rush the cell and tackle him.”

A magistrate and two judges have now ruled that the case should move forward. Today, it is: all the deputies involved are still on the force. 

"It’s just amazing how things are overlooked in certain situations because of what you do or who you are," Davis said. "And it shouldn’t be."

Contact 7 Investigator Ross Jones at rjones@wxyz.com or at (248) 827-9466.

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