Originally Published: November 9, 2004 7 a.m.
PRESCOTT – Robert Howell's attorney said Monday that he will dismiss one of five claims in a civil lawsuit he recently filed in federal court against a number of government officials and police officers from Yavapai County who took part in a March 2003 drug raid at Howell's home in Prescott.
In December 2003, Anthony Shaw filed a civil lawsuit on behalf of Howell and his wife Patti in the Yavapai County Superior Court and then on Oct. 25 he filed another one in the United States District Court of Arizona.
Shaw said that he plans voluntarily to dismiss the fifth claim of the lawsuit that pertained only to Yavapai County Attorney Sheila Polk. He said he has received a letter from insurance pool attorney James Jellison, who is representing Polk and other county officials in this case, who has asked him to dismiss the claim.
"You do not have deprivation of a constitutional right to fair trial in the criminal case when you win the criminal case and Howell won the criminal case," he said, adding that he agreed with counsel's argument after he looked at a number of cases.
However, he still plans to use the information to prove Polk's alleged bias, he said.
Jellison was unavailable for comment, because he is out of the office until Nov. 15.
The federal lawsuit comes almost three months after Yavapai County Superior Court Judge Janis Sterling dismissed the criminal case against Howell.
Suppressing a significant amount of evidence that the state planned to use in its criminal case against the defendant, Sterling ruled that when Howell fired a shot at police officers during the drug raid at his home, his action was "the product of the illegal government activity."
The federal lawsuit is against the Prescott Area Narcotics Task Force – as of July it has changed its name to Partners Against Narcotics Trafficking or PANT – management committee, which includes Polk, police chiefs from nine police departments, Yavapai County Sheriff Buck Buchanan and YCSO Major John O'Hagan, and seven officers who were working for PANT at the time of the incident.
This lawsuit, unlike the other one, excludes a Department of Public Safety (DPS) official because "I've decided that they were not at fault," Shaw said, adding that DPS pulled out its officer from PANT.
In March 2003, police arrested Howell on multiple felony charges in connection with the March 5 incident when he fired a round at the Prescott Area Narcotics Task Force officers (PANT).
Armed with a search warrant, the officers went to Howell's home looking for his 19-year-old son, Brian, whom they believed was dealing drugs in the 500 block of Dameron.
As the officers broke open the door at around 6:30 a.m. Howell fired a shot at them. Brian was not at home at the time of this drug raid. Police incarcerated Howell on charges of four counts of attempted first-degree murder, four counts of aggravated assault and one count of unlawful discharge of a firearm within the city limits.
A month later, the court dismissed with prejudice the four counts of attempted first-degree murder but the other charges remained.
The federal lawsuit alleges claims for relief including a violation of substantive due process, unreasonable search and seizure, excessive force and unconstitutional arrest. The fifth claim, which Shaw plans to dismiss, pertained to Polk's alleged interference with Howell's right to a fair trial.
The claim alleges that "Polk violated Howell's right to a fair trial by corruptly influencing a (grand) juror not to investigate charges of perjury against defendant (Kel) Palguta in an unrelated matter."
Palguta is a PANT officer who provided information to a judge to obtain a search warrant for the March 5 drug raid at Howell's home.
Shaw said that he decided to file this lawsuit in federal court because it would be better that an independent federal judiciary conducts proceedings since it involves defendants from various offices in Yavapai County.
He said he has given the defendants the option to consolidate the two lawsuits and to have just one pending case in federal court. If they reject his offer, "we will have two separate cases."
Prescott City Attorney John Moffitt said he has not discussed with his clients whether to consolidate the cases.
He said Sterling's ruling in the criminal cases may affect the civil case. However, the jury also may not agree with her decision.
"Her ruling was in the criminal aspect and not in the civil so there are different burdens to follow," he said, adding that negotiations to potentially settle the case are not an option at this point.
Larry Crown, attorney for the Prescott Valley Police Department, was unavailable for comment.
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