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Fri, Feb. 21

Howell's second lawsuit against police starts

PRESCOTT - After losing a civil lawsuit in federal court one year ago, Robert Howell is hoping to convince a Yavapai County jury that Prescott Area Narcotics Task Force officers acted unreasonably when they executed a search warrant at his home and arrested him in March 2003.

The 54-year-old plaintiff is suing the officers for damages based on 10 claims including substantive due process, unreasonable search and seizure, excessive force, unconstitutional arrest, negligence, intentional and negligent infliction of emotional distress, false arrest and assault and battery.

In this trial, Howell's attorney, Tony Shaw, is able to present all claims spelled out in his initial complaint. That was not the case with the federal lawsuit because a judge dismissed most of the claims before the trial started.

On Tuesday, during opening statements, both sides explained the chain of events that led to

Howell's arrest on attempted first-degree-murder charges, among others.

Armed with the search warrant, PANT 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 Street.

When the officers broke open the door at 6:30 a.m., Howell fired a shot at them. Brian wasn't home at the time. Howell testified on Tuesday that his son was living with his friends in Prescott Valley, although he occasionally would stay at their house with their

permission.

Shaw described the breaking in by the officers as "horrendous commotion," which first caught the attention of Howell's

youngest son.

Shaw said when his client woke up, Howell thought gangsters were invading his home.

"Bob feared death or serious physical injury," Shaw said.

He got a gun from his bedroom and when the officers opened the door Howell fired a round.

"Bob fires the gun," Shaw said. "He thought he fired into the couch. The shot went right through the middle of the door."

Howell's son was standing next to the door. Howell was horrified when he realized he just shot at the officers, who refrained from firing back, Shaw said.

Police treatment of Howell and his family was no better after the incident, Shaw said. Howell suffered a shoulder injury when one of the officers forced him to the ground, he said.

The defense disputed this claim by saying the injury might be common for his age and Howell sought medical help six months after the incident.

Shaw said Howell's attorney fees to fight criminal charges, which a Yavapai County Superior Court judge dismissed two years after the raid, totaled $45,000. The incident also cost him and his family credit reputation and quality of life.

Elan Mizrahi, who is co-representing four out of six PANT officers, said Howell shot at the officers while they were doing their job.

"He shot at the officers and now he's suing," Mizrahi said. "This is outrageous ... A miracle in all of this is that no one got hurt."

Considering the circumstances, the use of force by the officers was reasonable, he said. The officer also obtained the search warrant lawfully and executed it properly, he said.

Shaw said that the affidavit for a search warrant had numerous problems. It contained the name of Brian Keith Kelly when Howell's son is Brian Howell.

Mizrahi noted that a Department of Public Safety officer also was on the scene with other officers, but Shaw omitted his name from the lawsuit.

City of Prescott attorney Tom Lloyd, who is representing former Prescott Police Sgt. Pete Hodap, told the jury that the officers use various tools of the trade to preserve the evidence of crime and to ensure officers' safety. That was also the case on March 5.

Defense attorney James Jellison concluded the opening statements by saying that officers do not start their day by wanting to get hurt or to hurt others. Many times the circumstances force them to make fast judgment calls, particularly when investigating narcotics.

They used "an extraordinary amount of restraint" not to use deadly force after Howell fired at them,

Jellison said.

The civil trial will continue over the next two weeks.

Contact the reporter at mburic@prescottaz.com

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