One of the nation’s highest courts has ordered a judge to take another look at the case of a Shortsville man who claims a Geneva police officer broke his wrist in 2005.
In a decision dated Aug. 18, the U.S. Court of Appeals for the 2nd Circuit sent the case of Brian D. Barlow back to federal court in Rochester, where Judge Charles Siragusa dismissed it more than two years ago.
The New York City-based 2nd Circuit court is one of 13 Courts of Appeals nationwide. The U.S. Supreme Court is the only higher court.
Barlow, 54, of 44 High St., Shortsville, contends a Geneva police officer broke his wrist during a “sham arrest.” It was part of an undercover drug buy while Barlow was acting as a confidential informant for the Ontario County Drug Task Force. The incident happened in January 2005 in Phelps.
Barlow said his wrist, which he broke in 2004, was fractured again through excessive force and from being handcuffed during the 2005 drug buy that resulted in the arrest of another man, Roy Hogan. Hogan sold Vicodin to an undercover policeman.
After the deal went down, Barlow said he was placed under arrest by plain-clothes county sheriff’s deputies and several Geneva police officers on the task force. He maintains he told the officer his wrist was injured and to be careful but said the officer told him to shut up, cuffed him and twisted his hands behind his back.
While in custody, Barlow said he asked the officer to take him to the hospital, a request that was refused. Although the officer wasn’t in uniform and Barlow never learned his name, he said he overheard the officer say he worked for the city of Geneva.
Contacted by phone recently, Barlow said he didn’t know he would be handcuffed and had told two county deputies involved in the sting operation, Brad Falkey and John Storer, about his wrist.
“I told the arresting officer I was going through therapy with my left wrist, so don’t bend it,” Barlow said. “He broke it right there on the spot. I felt it snap right there.”
In response to a 2007 complaint filed by Barlow — Barlow was acting on his own behalf — the law firm representing the city of Geneva in the case identified the police officers as Officer Carmen Reale, Detective Brian Choffin and Sgt. Randall Phillips. Reale is now a sergeant in the department. Phillips is retired.
Reale declined to comment on the recent court decision. Phillips, who moved away from Geneva after he retired, could not be reached for comment. Phone calls and e-mails to Falkey and Storer, now investigators for the sheriff’s department, weren’t returned.
Choffin said Barlow is lying.
“Brian Barlow is totally fabricating this entire story,” Choffin said in a recent e-mail to the Times. “We have never been to court on the matter and have never even been subpoenaed.”
Choffin said Barlow set up the deal in which he and Hogan would buy prescription medicine using Ontario County Sheriff’s Departments “buy money.”
“He was part of the operation from the beginning and knew that he would be ‘arrested’ with the suspect during the takedown,” Choffin said. “He told us that he had a bad shoulder, and we told him that no force would be used. He was actually excited to get under way.”
Choffin said the “buy-bust” proceeded without incident and Barlow was taken to the Phelps Police Department, where all the officers involved ordered pizza.
“We all ate lunch together, even Brian Barlow,” Choffin said. “When we were done eating lunch, myself and P.O. Reale gave Barlow a ride back to his apartment. Not once did he complain about pain or injury.”
Choffin called Barlow’s claims “another frivolous lawsuit.”
Barlow is seeking $10 million in damages, claiming he underwent three surgeries to repair his wrist and couldn’t get a job. He said he didn’t file the claim until nearly two years after the incident because he couldn’t find a lawyer who was willing “to go against the cops.”
Barlow said he didn’t have lunch with the officers after the buy and found his own way home.
“I’ve heard the story about eating pizza,” Barlow said. “That was a freaking lie. I didn’t have pizza with them. We got to the jail in Phelps and I was screaming in pain and told them to take these damn cuffs off. He took the cuffs off and it swelled up.”
Choffin said neither he nor Reale can remember who handcuffed Barlow.
The attorney representing the city, Gerard O’Connor from the Buffalo law firm Lippman O’Connor, declined to comment on the recent court decision.
Although Barlow filed the claim “pro se” — meaning on his own behalf — he was represented by a pro bono attorney, Andrew Ditchfield, before the appeals court. O’Connor and Ditchfield, from the New York City law firm of Davis Polk & Wardwell, presented oral arguments before the court in March.
In 2009, Siragusa rejected Barlow’s claim of cruel and unusual punishment under the Eighth Amendment, saying Barlow wasn’t a convicted prisoner at the time of the alleged injury. Siragusa also ruled the Fourth Amendment wouldn’t apply under unreasonable search and seizures since police weren’t actually arresting Barlow.
The appeals court reversed Siragusa’s ruling on the Fourth Amendment claim, saying more facts are needed to determine if Barlow agreed to the risk that he may be subject to a sham arrest as part of the drug sting.
“It was our view that the record in this case created a number of issues of fact,” Ditchfield said. “Where it goes from here is up to Judge Siragusa.”
In addition to sending the case back to Siragusa, the appeals court asked him to find legal representation for Barlow and identify the police officer who handcuffed Barlow.
“First, the district court appears to have been severely disadvantaged by the fact that Barlow appeared before it pro se,” the court wrote. “We, to the contrary, benefited significantly from his pro bono representation on appeal. We therefore strongly urge the district court to seek pro bono representation for Barlow in proceedings on remand.
“Second, nothing in this order should be read to preclude the possibility that, if a fuller record is developed prior to trial, this matter may be resolved on motion for summary judgment in the defendant’s favor based on that record.”
Ditchfield believes Siragusa is likely to appoint a Rochester-area lawyer to represent Barlow in district court, but he can’t predict what the outcome will be.
“I really don’t know what will happen moving forward,” Ditchfield said. “Our representation of Barlow is limited to the appeal at the circuit level, and that was resolved. This was a good ruling [by the circuit court]. It’s nice to be able to take a case that is being pursued by a pro se litigant and help that litigant out.”
Barlow said he was happy with the ruling as well.
“Now, they are going to tell me the name of the officer and get me a lawyer,” he said. “I understand it’s a complicated case, and I really don’t want to ruin the name of the police officer, but I just want to go on from here and see who it is.”