Beating victim gets paid

Restaurant that hired off-duty deputy settles lawsuit with customer

In a tale that's spawned as many twists as Hitchcock could cook up, there's finally an end to Tim Peck's travails. Sort of.

Peck, who on April 11, 2001, went to pick up a to-go cheeseburger at the Fox & Hounds but instead had his legs broken, has settled his lawsuit against the restaurant's parent company, Derek Lawford Pubs.

Not yet off the hook, however, are the other defendants: former Fulton County sheriff's deputy Kelvin Smith, whom the restaurant employed as a security guard; the Sheriff's Department, where Smith was employed at the time of the beating; and the Fulton County Commission.

Peck's attorney, Genevieve Frazier, says she's demanded at least six-figure settlements from both the restaurant and the county.

"I can tell you that the restaurant's a done deal," Frazier says. "I just can't write the script for the second part."

While the conditions of the May 22 settlement restrict Frazier from releasing the exact dollar amount, all parties have been attempting to settle in order to avoid trial, she says.

The county and sheriff's department, she says, are still negotiating. But if a deal can't be reached, Frazier intends to re-file the case against the remaining defendants in federal court — and add Sheriff Jacquelyn Barrett and her second-in-command, Chief Deputy Caudell Jones, to the lawsuit.

Peck met Smith as he walked into the Fox & Hounds and took a seat to wait for the burger order he'd called in. He soon got into an argument with the security guard, who allegedly called Peck "smug face." Smith then ordered Peck to leave the Fox & Hounds, according to an incident report. In the parking lot, Peck refused to leave unless he got his burger or the money he'd paid for it, the report states.

In the ensuing scuffle, Smith delivered at least eight baton blows to Peck's knees and shins, breaking both legs. When Peck was released from Grady Memorial Hospital six days later, he was arrested on six charges, including felony obstruction.

The sheriff's department proceeded to clear Smith within six months of any wrongdoing in Peck's beating.

Then, three months later, the judge hearing Peck's criminal case dismissed all six counts and shifted blame to the deputy, calling his actions "egregious and something that the law just cannot condone." Magistrate Craig Schwall also said at the hearing that the sheriff herself should be "personally interested" in the beating.

Within a week, Smith went to the Fulton District Attorney's Office to try to resurrect the case. Peck was indicted, but he never knew it. That's because DA Paul Howard quickly dropped the indictment, stating that Smith had misrepresented the facts by failing to tell the DA's office or the grand jury that the magistrate had already dropped the case — and that Smith had broken Peck's legs.

Howard's office has launched an investigation into the actions of Smith and several other Fulton deputies after one of the grand jurors alerted him to CL's past coverage of Smith's and the other deputies' misdeeds. That investigation continues.

A month after the indictment, in February 2002, Sheriff Jacquelyn Barrett fired Smith, citing the magistrate's harsh words. Peck then filed his lawsuit.

Mysteriously, as the lawsuit progressed, Peck was charged a third time, by the Fulton County Solicitor's Office. Solicitor General Carmen Smith's only explanation — offered both to CL and Peck's attorney — was that the case came to her office directly from the jail. She could not say who sent her office the charges, only that they stemmed from Peck's original arrest.

That makes no sense. The solicitor can only prosecute misdemeanors. One of Peck's charges was a felony. Only the District Attorney's Office can reduce a felony to a misdemeanor and transfer the case to the solicitor. Fulton DA spokesman Erik Friedly says the DA's Office did no such thing.

In January, the Solicitor's Office dropped the charges. But Frazier is still trying to ascertain their origin; that might be relevant to Peck's ongoing case against the sheriff's department and county.

Dennis Webb, an attorney hired by the Fox & Hounds to represent Smith (since the county refuses to provide counsel for the former deputy) told CL last month that he believes his client has been mistreated by the sheriff's department. Webb is alleging that the sheriff fired Smith strictly for political reasons — and that sheriff's officials actually ordered Smith to seek the indictment after the magistrate blasted him.

Webb also has subpoenaed this reporter to testify against the sheriff's department should Peck's lawsuit go to trial. CL's attorneys are fighting the subpoena, citing the privilege journalists enjoy to protect their newsgathering and sources.

The lawsuit was scheduled for trial June 2. But since the restaurant settled, and the remaining portion of the case will likely be re-filed in federal court, the trial will be postponed.

Frazier says the restaurant's decision to settle won't lessen the burden on the county and sheriff's department.

"I'm not letting the restaurant carry the load," she says.