Legality of detention in police beating incident challenged
Kuhn defense files paperwork contesting legality of arrest that left him bruised, bloody
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HOLLIDAYSBURG -- The Blair County Chief Public Defender has filed paperwork challenging the legality of a 71-year-old city man's July detention that left him bruised and bloody, allegedly at the hands of the arresting officer.
James Paul Kuhn was taken into custody by Altoona police on July 13 after a turn signal violation evolved into an alleged high-speed chase and subsequent altercation. While officers reported Kuhn "squaring up" and "swinging" at them, body-worn camera footage shown to the Mirror appears to refute their accounts.
Kuhn was ultimately charged with single felony counts of aggravated assault and fleeing police, single misdemeanor counts of evading arrest, recklessly endangering another person and resisting arrest, as well as five summary traffic offenses.
Blair County Chief Public Defender Laura Burke filed the writ for habeas corpus among other motions following a contentious bail hearing before President Judge Wade A. Kagarise on Aug. 28 and after she reviewed video footage that appeared to contradict the arresting officer's sequence of events.
Kuhn's bail was set at $100,000 by Magisterial District Judge Matthew Dunio during his preliminary arraignment but was lowered to 10% of $50,000 by Magisterial District Judge Daniel C. DeAntonio after a July 22 preliminary hearing. Kuhn remains incarcerated at the Blair County Prison, unable to pay.
According to the affidavit of probable cause, arresting Altoona officer Cpl. Stephen Fox was in the area of Eighth Street and Sixth Avenue when he saw a silver SUV fail to use its turn signal while turning onto Eighth Street "at a high rate of speed."
Fox wrote that he "was traveling approximately 60 to 65 mph in an attempt to catch up to" the SUV, whose driver was later determined to be Kuhn. While following Kuhn along South Seventh Street, Fox reported their speed as "approximately 25 mph."
Fox also wrote that Kuhn almost struck a bicyclist along Fifth Street, who had to "move out of Kuhn's path."
Kuhn eventually stopped the vehicle at a residence along the 500 block of Fifth Avenue, got out and "began walking quickly toward the front of (Kuhn's) vehicle." Another officer pursued Kuhn, and Fox reported that Kuhn "squared up with him."
The other officer performed a leg sweep on Kuhn, "at which point Kuhn landed on his back and threw approximately two leg kicks" striking the other officer, Fox reported.
While attempting to gain control of Kuhn's hands, Fox struck Kuhn six times on the left side of his face. Kuhn was then transported to UPMC Altoona to receive treatment for injuries suffered in the altercation with police, according to the affidavit.
Bail issue undecided
During August's bail hearing, Burke asked Kagarise to modify Kuhn's bail type from monetary to unsecured as he lacked the means to post any type of bail. She said Kuhn's prior criminal history was "rather remote in time" and that on the day of the incident, Kuhn received bad medical news that had upset him.
When Fox attempted the traffic stop, Kuhn did not pull over but continued to his residence "where he felt safe," Burke said.
In regard to not cooperating with police, Burke said police had Kuhn laying on his left arm and that he just had surgery on his right shoulder so "he couldn't move it."
Fox then punched Kuhn "repeatedly in the head," Burke said, adding that she felt the felony charges were filed to justify the use of force.
"I don't believe they would have charged him with aggravated assault if (Kuhn) had not been so injured," Burke said.
Burke told Kagarise that Kuhn's most recent criminal charge was filed in 2013 and he never failed to appear for a hearing.
"He wasn't trying to get away from anything," Burke said. "He was trying to get home."
First Assistant District Attorney Nichole Smith said "the facts of the case were not explained as thoroughly as they needed to be" and that Kuhn refused to cooperate with police by shoving one of his hands beneath himself. She told Kagarise that officers were concerned Kuhn might be in possession of a weapon and Kuhn "required compliance strikes" for him to eventually give up his hand.
She said Kuhn was using his medical problems "as a shield" and would "probably receive bad news again."
Kagarise questioned Burke on ways Kuhn could potentially post bail, first suggesting a bail bondsman and then asking about the possibility of electronic monitoring. Burke said Kuhn lacked signing money for a bondsman and that he has heart issues that could interfere with a monitor.
"He is very invested in the outcome of this case," Burke said.
Kagarise took the matter under advisement, but no order has been filed as of Sept. 25.
Events challenged
In motions filed following the hearing and after reviewing police footage, Burke asked for the record to be reopened as "the conduct described in the criminal complaint, namely, that Kuhn 'squared up' and attempted to punch and kick officers, did not occur."
She specifically challenged the felony count of aggravated assault and the misdemeanor counts of evading arrest, resisting arrest and recklessly endangering another person, writing that video footage negated the allegations which formed the basis for the charges.
During testimony at Kuhn's preliminary hearing July 22 in front of DeAntonio, Fox testified that as he approached Kuhn and the other officer, he saw Kuhn "square up" and "take a fighting stance."
"Compliance was gained with continued effort for (the other officer) trying to get his right hand free and me trying to get his left hand free," Fox said. "In combination of yanking on his arm and the compliance strikes to his face, we were able to gain both his hands free and get him in handcuffs."
When questioned by Burke, Fox said he didn't "see the actual sweep of the leg, but I can tell based on (the other officer's) motion what he is doing."
Fox also testified that he "did not see" Kuhn kick the other officer but that the other officer "told me (Kuhn) tried to kick him."
Burke then asked Fox if Kuhn spoke while officers were ordering him to put his hands behind his back, to which Fox said "he said nothing."
The dashcam video from Fox's unmarked police vehicle played for a Mirror reporter appears to show Fox stop behind the marked police vehicle that pulled Kuhn over. The tinted windows of the police vehicle block from view the majority of the incident during which Kuhn allegedly squared up and swung at police.
Footage from two police body-worn cameras also played for the reporter appeared to show Kuhn exit his vehicle with his back to both the other officer and Fox as he walked around the front of his SUV. The other officer, after commanding Kuhn to stop, appeared to immediately grab Kuhn by the arm, turn him and sweep his legs from beneath him. Kuhn landed on his left side and appeared to have his left arm pinned beneath him as police ordered him to give them his hands.
The videos appeared to show that officers had Kuhn's right arm under control, and Kuhn could be heard screaming in the videos that it was his "bad arm."
Officers continued to demand Kuhn's left hand as about four other officers appeared to hold him down on his left side. Fox is then seen striking Kuhn six times in the side of the face and head.
When officers placed Kuhn in handcuffs and pulled him to his feet, blood can be seen running down his face. While waiting for EMS to arrive on scene, Fox and other officers are seen repeatedly muting their body-worn cameras as they talk to each other.
When asked about the case, Altoona Police Chief Derek Swope said Friday he was unable to comment on pending criminal matters.
Kagarise will hear arguments in regard to Burke's motions during a hearing in courtroom four at 2:30 p.m. Friday, Oct. 2.
Mirror Staff Writer Rachel Foor-Musselman is at 814-946-7458.