A former Lawrence police officer who authorities say was captured on camera repeatedly punching an arrestee in the face has been granted a diversion in the criminal case against him.
The Douglas County District Attorney’s Office approved a two-year diversion for Frank V. McClelland, who was charged with one count of misdemeanor battery stemming from the 2016 encounter.
The charge against McClelland was filed in September 15, 2016, but the case and plea negotiations languished. Judge Peggy Kittel approved mediation in the case — a novel tactic for a criminal case in Douglas County — and in early December 2017, DA Charles Branson and defense attorney Michael Riling met with a third-party mediator, fellow Douglas County District Court Judge Kay Huff.
With the filing of the diversion agreement, the case was resolved later that month.
According to the agreement:
McClelland must write a letter of apology to the victim, delivered via the DA’s office. He also must complete at least 20 hours of community service before July, and submit to a psychological exam and follow all recommendations for treatment.
The agreement also states that McClelland “cannot work as a law enforcement officer or security officer in any capacity during the duration of this diversion agreement.”
If McClelland fails to adhere to the diversion terms, the state could reinstate prosecution of the criminal charge, under the agreement. If he completes the diversion, the state agrees to drop the charge.
Branson answered why he agreed to grant McClelland a diversion in the case, in emailed responses to questions from the Journal-World.
As to whether diversion is sufficient to hold McClelland accountable for his actions while in uniform, Branson said, "Under the facts of this case, yes."
"After consultation with the victim in the case, I felt the goal of accountability and punishment was achieved while balanced against the desire of the victim to not go through a trial and yet still feel the defendant was held accountable for his actions," Branson said.
Branson added that the victim was "very satisfied" with the process and outcome.
For the level of the criminal charge, a misdemeanor battery, Branson said a two-year diversion is typical. He said that there are different levels of battery charges depending on the severity of injuries and that, in this case, the misdemeanor charge was "appropriate based on the evidence."
McClelland's attorney did not respond to a message from the Journal-World last week.
The alleged battery that led to the case happened about 5 p.m. Aug. 16, 2016, at the Brookwood Mobile Home Park, in the 1900 block of E. 19th St., according to an affidavit in support of McClelland’s arrest, prepared by a Douglas County Sheriff’s detective who investigated the incident.
According to the affidavit:
The sheriff’s office investigated, at the request of the police department, after a citizen complained to the department that McClelland used excessive force in the incident.
McClelland was dispatched to help another officer break up a fight between two men at the location. In-car videos showed McClelland’s encounter with the man, who — after being separated from the other man — repeatedly refused McClelland’s orders to sit down.
McClelland swept the man’s legs out from under him. While on his back, the man began to raise his right hand toward McClelland’s chest and head area, and McClelland punched him on the side of his face, forcefully enough that the man's head is seen “snapping backwards as the strike lands.”
McClelland threw a total of four punches at the man, and appeared to land at least three on his face.
McClelland then rolled the man onto his stomach, handcuffed him and pushed him against the side of his patrol car. After being patted down, as the man was sitting down in the back seat, McClelland shoved his head into the vehicle with enough force that his head made “solid contact” with the seat and a hard plastic center divider.
McClelland resigned from the department effective Aug. 30, 2016, the Journal-World previously reported.
A fellow police officer to whom the citizen complained reported the misconduct to a supervisor, former Police Chief Tarik Khatib said at the time.
An internal investigation by the Lawrence Police Department’s Office of Professional Accountability, completed and shared with the DA’s office Sept. 9, 2016, found that McClelland used excessive physical force on a citizen.
From the sheriff’s simultaneous investigation, the criminal charge against McClelland was filed Sept. 15, 2016. The DA announced it at a news conference the following day.
The man who was punched was arrested, but charges against him or the other man he’d been fighting were not filed.
McClelland also was one of three Lawrence police officers named in an October 2014 civil suit alleging excessive force, which the plaintiff ultimately dismissed after a judge threw out a number of his key arguments on Sept. 2, 2016.
In that case, Miguel Armenta, a Lawrence firefighter, had sued the officers and the city for $225,000, accusing the officers of police brutality and breaking his arm while arresting him in April 2014 outside the VFW hall, 1801 Massachusetts St. In court filings, the city denied excessive force and said officers acted within their scope.
While the sides didn't reach a plea agreement following mediation in McClelland's criminal battery case, the diversion agreement is a plea agreement of sorts, in that it allows for the resolution of the case without a trial, Branson said.
As for using mediation in a criminal case, Branson said he would "potentially" try it again, depending on the case and facts.
"It allowed for a discussion of the parties' goals," Branson said.