Fort Myers Pays Nate Allen $440,000 for Wrongful Arrest

Nate Allen

The city council yesterday finalized a settlement of nearly a half-a-million dollars for NFL player Nate Allen for his wrongful arrest. (While he was detained, and ultimately released without a formal arrest, it was easily a ‘de facto arrest’ due to time and totality of the circumstances.) It was enough to make the news, especially since he is a professional football player. Even though he was released that day, the suit was worth a lot more because of the demonstrable negative effects it had on his NFL contract situation. Worse, the FMPD chief at the time, Doug Baker, was caught lying in the investigation into the cover-up, leading ultimately to his termination. The entire incident was a black eye on the city. To the council’s credit, they recognized the wrongdoing, and have repeatedly apologized. Neither the chief, nor the detective on the case are still with the city. Sawyer Smith handled the case for Allen, and tells me he is as nice a guy you could ever meet.

Sadly, the lessons are still being learned. Just a few months ago I encountered a case where the FMPD utilized the same faulty show-up procedure to identify someone, in spite of the pending lawsuit. The state ended up dropping the case. Meanwhile, the 2-year anniversary of Zombie-con has passed with no arrests, charges, or even named suspects. And just last week, more details have come out about the officers suspended after the Freeh Report. FMPD has a long way to go…

Man Gets $37,000 after Doughnut Arrest

Daniel Rushing

Daniel Rushing was arrested in 2015 when an officer mistook the glaze from his Krispy Kreme doughnut for Crystal Meth. He bonded out after 10 hours, even though he should not have been locked up at all. He sued the maker of the field test kit, as well as the city, who failed to properly train their officer on how to use the field test. They settled this week for $37,500. That’ll buy Mr. Rushing a lot of doughnuts!

This kind of thing happens more often than you would think. I saw a guy get arrested for patchouli that the officer said tested positive for heroin. A man in Ovideo was recently held for 90 days until a lab test proved that his drywall was not cocaine. He may be seeking an even more substantial lawsuit, that the taxpayers are going to end up footing. And to compound his problems, he may not be able to get the arrest record expunged because he has a prior history, which prohibits expungement under current Florida law.

News of this settlement comes as the City of Fort Myers seeks to finalize a settlement for wrongly arresting football star Nate Allen: which crimcourts will be following closely.

Holy Cow, Fort Myers Fired the Police Chief Today

Former Chief Doug Baker

The City of Fort Myers announced the termination of FMPD police chief Doug Baker today. Mayor Henderson has been quoted saying that untruthfulness was the reason for the termination. City manager William Mitchell also indicated he was concerned about the state of morale at the department. The investigation indicated that Baker claimed to have called Captain Perry while local NFL player Nate Allen was being detained, and told them to let him go, though he was held for quite some time after that. The investigation revealed that the phone call Baker made was a missed call, and that he actually didn’t speak to to Perry until sometime later. Perry’s statement was consistent with the phone records.

The irony, as always, is that the cover-up is worse than the infraction. It wasn’t Baker’s direct fault that Allen was held to long, and he didn’t have any need to claim that he directed the release to Perry. It’s even more ironic, because Baker ordered this internal investigation, which ultimately led to his own downfall.

The termination had to happen, once evidence revealed that the chief was dishonest. It’s unfortunate on many levels, but will hopefully provide an opportunity for positive change at FMPD. Credibility of police officers is paramount, not only for developing trust in the community, but because we rely so heavily on their reliability in the courtroom. Further, it appears from the investigation that Baker was punishing other officers, meanwhile being untruthful about his own involvement. Since the department has terminated other officers for dishonesty, that policy must also extend to the supervisors. Credibility can only be built if it is consistently enforced from the top down. I commend Mr. Mitchell and the city leaders for doing the right and necessary thing.

FMPD Internal Investigation Completed

Nate Allen

The Fort Myers Police Department has completed an internal investigation regarding the mistaken arrest of NFL player Nate Allen several months ago. They found that errors were made by the officers investigating, which led to him being improperly detained. Sanctions have been levied by FMPD, including suspensions for a couple of officers involved in the investigation.

Allen’s attorney Sawyer Smith will respond to the announcement with a press conference tomorrow at 10 a.m. Smith has long been calling for an outside investigation into the incident, and the City Council discussed the possibility some time ago, but deferred to hear the result of the FMPD investigation.

Previous coverage of the Nate Allen case on crimcourts: https://crimcourts.wordpress.com/tag/nate-allen/

Fort Myers Still Hasn’t Done Anything About the Nate Allen Fiasco

Nate Allen

Almost 3 months have gone by since the erroneous detention of NFL player Nate Allen. Allen and his attorneys spoke at city council in February to ask the city to call for an outside investigation. The city expressed an interest, but deferred taking action until the FMPD completed their own investigation. Allen’s attorneys were at city council last night, again pushing for an outside investigation (a position endorsed by Crimcourts). The city did not take any action at this time. Allen has filed suit against the city, which limits city employees freedom to speak about the issue, though some expressed regrets for the way the situation unfolded. Months have now gone by with no answers, and no steps have been taken to prevent future miscarriages of justice.

Allen has signed with the Oakland Raiders, and we wish him continued success.

An External Review Is a Win-Win to Review the Nate Allen Fiasco

FMPD is confident that an internal audit will be sufficient to review the errors that led to Nate Allen being wrongfully detained for more than five hours. However, Allen and his attorneys at the Wilbur Smith Law Firm are asking the city to bring in an outside agency, such as the FBI or FDLE (The Florida Department of Law Enforcement). Here’s the thing… EVERYBODY ought to be on board with an outside review. Transparency is good for everybody.

The City of Fort Myers should want an outside review. If the review is conducted by an independent agency, and finds no wrongdoing or cover-up, then the public will have confidence in that result. On the contrary, if there was wrongdoing, egregious errors, or a cover-up, then we all want to know about it. If there is a problem, it’s a good thing if the outside agency roots it out, so the problem can be fixed, and it doesn’t happen again. The City, and its citizens, all stand to benefit from an outside review. I encourage the city to bring in an outside agency, and release all the related documents.

Further, I would recommend that there be a review of the FMPD policy. If the policy still encourages a suggestive, one-person procedure, it should be updated. The State Attorney’s Office already pointed out that an unduly suggestive procedure was used to mis-identify Nate Allen. Steps should be taken to make sure it doesn’t happen again. Scientific studies and best practices recommend the following:

• train all law enforcement officers in eyewitness identification
• conduct lineups and photo arrays blindly
• establish standardized witness instructions
• immediately ask the witness about his or her level of confidence in the identification
• videotape the entire eyewitness identification procedure

More information about best practices can be found on the DOJ’s “COPS” Community Policing Dispatch. Check out the article from December, “When it Comes to Eyewitness ID Best Practices, the Science is Settled.”

The law is also settled:

“Given the potential for misidentification if suggestive procedures are employed, courts have recognized that “[t]he practice of showing suspects singly to persons for the purpose of identification, and not as part of a lineup, has been widely condemned.”Stovall v. Denno, 388 U.S. 293, 302, 87 S.Ct. 1967, 1972, 18 L.Ed.2d 1199 (1967); Perez v. State, 648 So.2d 715, 719 (Fla.1995); Blanco v. State, 452 So.2d 520, 524 (Fla.1984),cert. denied, 469 U.S. 1181, 105 S.Ct. 940, 83 L.Ed.2d 953 (1985)” Macias v. State, 673 So.2d 176 (Fla. 4th DCA 1196).

More on Nate Allen on Fox 4 News Tonight

I gave them a few comments, reiterating that I think an outside review is a good idea, and how surprised I was that FMPD is still using 1-person show ups. We’ll see if I made the story!

UPDATE: Excellent, the included a quote: ” The courts have made it clear that the preferred way to do an identification is to do an array, either a lineup, or a photo array with multiple pictures, that way you’re not suggesting an outcome to the witness.” I’ll have a more thorough post on it tomorrow.

Screen Cap from Fox4 10 pm

FMPD Doubles Down on Keeping Allen Investigation In House

Wilbur Smith, name partner of the law firm that represents Mr. Allen, sent a formal letter to the city asking for an outside review of policies. This additionally noteworthy as Mr. Smith served as Fort Myers mayor several years back.

However, FMPD Chief Doug Baker has responded that he intends to keep the investigation in house. This, in spite of comments he made off camera to WINK News that he doesn’t think his officers did anything wrong. That WINK article has been replaced by one that includes Baker’s on camera responses. However, it still appears that he has already made up his mind that officers acted appropriately.

Keep in mind, it may have been appropriate for officers to stop and detain Allen based on the description if the description matched. There seems to be some dispute whether it did. It was not appropriate, as the State Attorney has said, to use an unduly suggestive procedure to ID Mr. Allen.

The FMPD should adopt a policy that favors using lineups for identification, and only uses one person ID when there are major exigent circumstances. Technology today allows for a 6-pack (a 6 person photo lineup) to be generated quite quickly. Best practices would involve presenting the lineup double-blind (that is, the presenter doesn’t know who the suspect is, so as to not subconsciously tip off the witness). Changes need to be made to the FMPD policy. An outside agency should be called in for a review, to ensure the integrity of the investigation.

Our earlier Nate Allen coverage: https://crimcourts.wordpress.com/tag/nate-allen/

What FMPD is not Doing About the Nate Allen Fiasco

FMPD has indicated they will do an audit or internal review of their practices in the wake of the wrongful detention of Nate Allen. Allen and his lawyers have called for an outside investigation into the situation, which Fort Myers does not seem inclined to do.

How do you know that the internal audit won’t find any wrongdoing? When the police chief has already said that the officers didn’t do anything wrong, as he told WINK News. [Ed. the story in this link has been amended since we first published this article.] He wouldn’t go on camera to say that. So, the boss has already prejudged the situation before his own department conducts their review. What are the chances that his employees contradict him on the situation.

More troubling, is that the State Attorney’s Office has already determined that FMPD used a bad procedure in the case. Their poor technique basically framed Allen. What’s more, they have made it more difficult to catch and prosecute the actual criminal who committed the act. It appears they violated their own policy by using the suggestive technique.

There should be a change to the policy to discourage any one-person show (including 1 person photo identification). The court have ruled clearly and repeatedly that such procedures are unduly suggestive, and will often lead to exclusion of the identification in court. The FMPD policy should follow the law.

Crimcourts joins Nate Allen and his attorney, Sawyer Smith, and city council Candidates Barnes and Sims in calling for an outside review of this incident, and the related FMPD policies regarding identification procedures.

More on the Nate Allen / FMPD Fiasco

The News-Press has additional info up in their continuing online coverage, including raw video from the press conference, and a transcript of FMPD’s interview with Mr. Allen. I am disheartened that the time log shows that Mr. Allen was not interviewed by a Detective on the case until 9:30 p.m. that night. By then, he had been sitting in police custody since around 5:00 p.m. Not only did the FMPD use an unduly suggestive show up to falsely implicate him… they did not bother to even get his side of the story for more than four hours. Also, NBC-2 has some of the surveillance footage related to the event, and interviewed Allen’s friend that he had met with. It sounds like the police didn’t get around to interview her for three days after the incident (possibly only after the State Attorney’s office made their request for follow-up investigation.)

The poor guy, he did not even know why he had been detained until several pages into the interview when the detective told him. And she had already made her mind up, asking him questions under the assumption he had done it, telling him that multiple people had identified him. Check it out, it is kind of sad, in light of the fact that we know Mr. Allen to be completely innocent.