Mitchell's suit: City released as crosswalk trial advances

More than three years after disabled artist Gerry Mitchell was struck by an Albemarle County Police cruiser and then ticketed, his $850,000 lawsuit against the City of Charlottesville and two police officers has found a trial date– but the biggest of the three defendants is off the hook.

In a February 24 hearing in Charlottesville Circuit Court, attorney John Zunka, representing the City, argued that the municipality is protected from liability by the legal concept of sovereign immunity, which offers wide protection to government.

Judge Gaylord L. Finch (who is hearing the case after Judge Edward Hogshire recused himself and the first replacement fell ill) agreed with Zunka's reasoning and dismissed Mitchell's claims against the city. However, Finch allowed Mitchell's claims against the two officers– among them, negligence, malicious prosecution, and intentional infliction of emotional distress– to go forward, setting a trial date of September 27-28.

"We're happy that a jury is going to get to hear this case and decide the issue," says Richard Armstrong, attorney for Mitchell.

As reported in 2007 Hook cover story, Mitchell was steering his motorized wheelchair in a West Main Street crosswalk when County Officer Gregory C. Davis turned left from Fourth Street onto West Main, striking Mitchell and throwing him from his chair. The incident was recorded by the cruiser's dash-cam– a video whose release provoked an uproar because it showed Mitchell plainly visible in broad daylight, contradicted several aspects of the Police Chief's portrayal of the incident, and it also revealed that Davis had been listening to the Black Eyed Peas Platinum-selling song "My Humps."

Mitchell's suit alleges that ticketing officer Steve Grissom and Davis, who wasn't present but who was represented by Richmond attorney Richard Dybing, conspired to issue a ticket to protect Davis from liability. Their joint visit to Mitchell's hospital bedside to deliver the ticket, Armstrong argued in court, constitutes the intentional infliction of emotional distress.

Attorneys Zunka and Dybing did not immediately return a reporter's calls.

Mitchell has long suffered from health ailments, including AIDS, and the suit alleges that his already precarious health nosedived following the accident. Hand and arm injuries allegedly relating to the accident rendered Mitchell, an artist, unable to participate in a prestigious show in a Harlem gallery. He felt forced to hire an attorney to defend himself against the criminal jaywalking charge–- which was dropped in January 2008–- and he was hospitalized repeatedly for various conditions allegedly stemming from the accident.

Mitchell, who did not attend the hearing, says he's glad to finally get his day in court.

"They have no idea what they've done to me by being so mean-spirited," says Mitchell, who says he tried to settle with the defendents before filing suit. "The fact that we've gotten this far," he says, "is good."

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I am disappointed and ashamed of the officers involved. They should be taken off our police force. How disrespectful!

My first memory of the police is as a child, in Harrisonburg. I was 6 years old. My parents dropped me a block from my school and watched from a distance as I walked to the corner with a stoplight in front of the school. I was supposed to cross for the first time by myself. I waited at the corner across from the school and when the light turned green I crossed by myself. Once across, I walked toward the school and was then stopped from behind by a policeman. he held my shoulder, leaned down and said: "If you ever cross again before I tell you to: you and me are gonna be in a whole-lot-of-trouble".

The wheels of justice( no pun intended) turn slow, but they will turn, and we will support Gerry because what happened to him was wrong. No amount of police cover up, or Chief Longo excuses are going to work. There was a witness, and he will testify, and the officers and the County will have to make restitution. I find this especially repugnant, Mitchell tried to settle, to cover his healt care costs, and the County refused and went behind the "blue wall" of police arrogance and protection for their own. Shame on the officer, shame on the City officer who tried to cover up and wrote a jaywalking ticket, and double shame for serving it in the hosptital. Really heartless, you deserve to be kicked off the police force for malicious prosecution to cover up for the County officer, who made a huge error, and needs to own up to that fact..

I am glad the City did not settle. The whole story should come out in court. Settlements usually do not allow for this.

CVille Eye, I agree with you 100%. I probably should have refused a few settlements and let the public hear the truths involved in some of my lawsuits.

But the fact remains, this case will NEVER go before a jury. Even if the city and county has to settle on the courthouse steps 15 minutes before jury selection begins, they WILL settle at the last minute.

The whole story will probably never be known, whether it settles or does go to court. Having known Steve Grissom for a very long time, I firmly believe that he was directed by somebody higher up on the food chain to summons Mitchell. I don't think it was Chief Longo, but it was somebody up the ladder of command. It doesn't take very long to coordinate these things by cell phone.

Mitchell has an extremely good case simply based on the fact that a first responder (Davis in this case) is never suppose to grab somebody and lift them up immediately following an accident like this. The intersection should have been blocked and let rescue personnel evaluate Mitchell before jerking him up like a rag doll.

Good point, Gasbag. The cop probably did that out of instinct, like if you break a vase your first instinct is to put it back together.

"oh man, I really screwed up. Maybe if I quickly put this guy back on his wheel chair everything will be ok........"

He was NOT acting like, "wow that guy in a wheel chair just got hit by a car, better call the ambulance!"

I had the pleasure of hanging out one evening with Gerry Mitchell many, many years ago. He's a really nice, sweet guy. I wish him nothing but success in this endeavor.

"Criminal jaywalking charge" - criminal ticket writing, more like. The video shows clearly that the light was green when Mitchell was crossing the street. Even with the washed out quality, even someone who's color blind knows the light at the bottom of the traffic signal is green, not red. C'ville's slimest.

Bill, you don't run over a pedestrian (or a man in a wheelchair) under any circumstances. Had this not been a cop shoppe car, only God knows what the driver would have charged with. Reckless driving at a minimum.

And if you do run over a pedestrian (or a man in a wheelchair), you DO NOT run up and immediately pick him up before evaluating his injuries whether you'r driving a cop shoppe car or not. This is very clearly shown taking place in the video too.

Not only is the entire situation both sad and a dark mark on our police force, but the fact that the officers are trying to cover it up is what upsets me the most. The police officers are supposed to be enforcing the law and thereby the truth. However, as seen by the video and its contrast to the statements made earlier, the police are blaming the entire situation on the victim. I wish they published the views of the police force, so we could see what the other side of the story is claiming.

I disagree with everyone who has commented here. I feel that both parties are at fault here and that Officer Grissom did the right thing by issuing summons' to both persons. To hold him responsible for doing his job is ridiculous. If you were to read the law, you would know that Gerry was crossing the street when he had a "do not walk" sign for the crossing that he was at. The reason that his summons was dismissed is simply because Virginia Law says that the sign must be written, not a symbol. You should be partially upset with the City of Charlottesville for putting up a crosswalk sign that doesn't allow the police to enforce that law. Yes Officer Davis should have been paying attention. I know for a fact that I have had several accidents. One was my fault. They happen. And as for what he had playing in his car at the time of the accident, WHO CARES? Davis should be found guilty of improper driving and Gerry should just drop his lawsuit. I do agree that the county/Davis should be responsible for his medical bills. That is what insurance is for though. I especially take offense to those of you in the community that think Chief Longo would try and cover up or offer excuses. You obviously don't know the Man. He is as upstanding a person as you will ever find anywhere in Charlottesville or elsewhere. He cleaned the PD up as soon as he took over as chief and puts up with no crap from any of his officers. He holds them to a higher standard than many other departments in Virginia. We are lucky to have him in our community. I am very liberal but still very pro-police. We are lucky in Charlottesville to have a great police department.