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Paper trail of confusion

Deputy fired for bashing man's legs; but will the termination stand?

There's nothing like a few harsh words from a Fulton County judge to kick-start a reaction from the sheriff's department.

One month after Magistrate Judge Craig Schwall blasted a Fulton deputy for breaking a man's legs — and five months after Creative Loafing first published a report on the beating — Sheriff Jacquelyn Barrett has fired the deputy.

An attorney for Tim Peck, the beating victim, followed up Feb. 14 with a $1.5 million lawsuit against the deputy and the restaurant where the beating occurred. And she served notice that she may file a separate federal lawsuit against the sheriff's department, claiming Peck's civil rights were violated.

Barrett's decision to fire Deputy Kelvin Smith in the wake of Schwall's harsh criticism may spark its own reaction. The decision contradicts internal affairs' initial conclusion — and the sheriff's own earlier insistence — that Smith was worthy of remaining on the force. And like other deputies with spotty records before him, Smith — Barrett says — is likely to appeal his dismissal.

But odd circumstances surrounding Smith's initial exoneration and now his firing pose a deeper question: Can the sheriff's department ever get it right when it comes to policing its own deputies?

In early August, when CL first contacted the department about Peck's beating, the head of internal affairs said his investigators were looking into it. The sheriff said the probe wouldn't conclude until criminal charges against Peck were resolved.

Peck, a 45-year-old computer programmer, was charged with public drunkenness, felony obstruction, battery of a peace officer, profane and abusive language, terroristic threats and disorderly conduct on April 11, after he got into an argument with Smith, who was working off-duty security at the Fox & Hounds restaurant in northwest Atlanta. While trying to arrest Peck, who allegedly was cursing and combative, Smith used his baton to shatter Peck's left kneecap and right shinbone.

On Aug. 29, CL published a cover story describing the assault, as well as Smith's checkered past: He'd been accused of 10 prior incidents of physical abuse, all of them against jail inmates and all of them ruled unsubstantiated by internal affairs.

The day after the CL story came out, Maj. Berle Brereton, head of internal affairs, sent Deputy Smith a letter stating the department was exonerating him. Two weeks later, the sheriff told CL that rather than wait for the criminal case to be resolved, she had decided, after consulting with county attorneys, to wrap up the internal affairs investigation.

The investigative file, which was released Oct. 4, said Smith was cleared of wrongdoing but that, due to a history of complaints against him, he'd be placed on monitoring status.

"It doesn't appear that he did anything wrong," the sheriff said in October. "It appears that everything he did that evening was in conformity with Georgia law and in compliance with the training that he had received."

Three months later, Judge Schwall changed the picture considerably. After noting discrepancies in the testimonies of Smith and two Fox & Hounds employees, Schwall dropped all six charges against Peck.

The judge described the beating as "something that the law just cannot condone" and said, "The public spotlight should be beaming on this case."

Three days later, in response to Schwall's criticism, Barrett said the investigation into Smith never had been closed. "We will now commence with discipline against the employee," she said. And on Feb. 14, she told CL she had fired Smith on Feb. 8. She insisted CL was wrong to report that the investigation had been closed in the first place.

But the paperwork trail involving Smith's internal affairs investigation, together with Barrett's comments, indicate that the case had been closed — apparently prematurely.

In October, after declaring that internal affairs files are released only after investigations are completed, department officials released the files. The page titled "incident report" stated that the case was "closed." A cover sheet signed by three department officials showed a "disposition" had been made. And the file included the Aug. 30 letter, sent to Smith before the case was closed, exonerating him.

But last week, Barrett faxed CL a page from the internal affairs investigation into Smith — a page that was not included in the file the department gave CL Oct. 4. She said it showed the case had remained open.

The page is a near replica of one dated Oct. 2 that was included in the original file. The page faxed by the sheriff, however, is dated Oct. 12. And while the Oct. 12 page says, "Case to stay open until psychological testing has been completed," the Oct. 2 page says, in a box marked "DISPOSITION," "Subject was issued a warning and monitoring letter on 10/2/01."

After faxing the Oct. 12 document, Barrett couldn't be reached for comment. She said earlier that she expects Smith to appeal his termination. If he succeeds, he will join the last two deputies to be fired for brutality-related reasons; they appealed their terminations and were reinstated after the county Personnel Board overturned the terminations. The reason for the reversals: Errors occurred in the course of the sheriff's department's internal investigation.

Smith's termination letter, released last week, states he's being fired for violating the Civil Service Act, personnel regulations and Fulton County policies and procedures.

Peck's lawsuit alleges that Smith committed simple assault, simple battery and false arrest, and that the restaurant failed to protect Peck from the security guard. The Fox & Hounds "knew or in the exercise of ordinary care should have known that there were serious risks of harm to patrons by Deputy Kelvin Smith" — partly because the restaurant has a written policy that prohibits it from hiring "security officers with a known history of violence," according to the complaint filed by attorney Genevieve Frazier.

Peck seeks $1 million in general damages and $500,000 in punitive damages, as well as compensation for lost wages, hospital bills and psychological treatment. His seven-day stay at Grady Hospital cost him more than $28,000. And his ensuing physical disability cost him his job, he says. He hasn't worked since last summer.

As of Friday afternoon, the spokesman for the company that owns Fox & Hounds, Derek Lawford Pubs, wasn't aware the lawsuit had been filed. "When we receive it we'll make a comment on it," Robert McDonald said.

Smith declined comment.

Frazier, who filed the suit in DeKalb County, where Smith lives, said she also has filed a pre-litigation notice with the Fulton County Sheriff's Department and is considering filing a federal civil rights complaint against the department.

Beyond the outcome of the first lawsuit and the possibility of another, however, larger questions remain. Why was the sheriff's department so hesitant to fire a bad cop to begin with? How can the department exonerate an employee and then fire him months later for the same incident? And why does internal affairs continue to bungle its investigations?

mara.shalhoup@creativeloafing.com??