The trials of Joe Harvey: Embattled deputy fights for job that county sheriff doesn't want him to have - The Explorer: Import

The trials of Joe Harvey: Embattled deputy fights for job that county sheriff doesn't want him to have

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Posted: Tuesday, September 21, 2004 11:00 pm | Updated: 7:48 am, Thu Mar 24, 2011.

Sept. 22, 2004 - For the past three years, Pima County Deputy Sheriff Joe Harvey has pored over documents, drained his life savings and spent countless hours defending himself against charges of beating a confession out of a suspect.

In September 2001, the highly decorated 14-year veteran patrol officer was fired for using excessive force in an arrest made almost two years before.

Harvey, 43, who has always maintained he did nothing wrong, fought his firing and was cleared a year later after 11 days of hearings by the county's Law Enforcement Merit System Council, which voted unanimously to reinstate him with back pay.

Instead of putting Harvey back to work, the Sheriff's Department placed him on paid administrative leave and appealed the ruling in Superior Court, which denied the appeal last October.

The department appealed the case once more to the Arizona Court of Appeals, which heard oral arguments Sept. 7. A decision on that case is pending.

At the center of the Sheriff's Department's case against Harvey is the man he arrested in 1999, petty burglar and three-time felon Michael Kollmann, who was ultimately convicted in the incident.

The details of the Kollmann case are well documented. The following account was taken from the Sheriff's Department homicide investigation on the night of the incident and its Shooting Review Board report three months later.

In the early morning hours of Dec. 28, 1999, a clerk at a Circle K at Cortaro Farms and Thornydale roads called 911 about a suspicious car parked at one of the store's gas pumps. Kollmann was asleep in the car, which was stolen, and had a warrant out for his arrest for violating probation. Methamphetamines and marijuana were later found in his system.

Pima County Deputy Sheriff Chris Rogers, one of several deputies responding to the call, approached the car and began to question a bleary-eyed Kollmann. When he couldn't provide any ID, Rogers asked him to step out of the car.

Instead, Kollmann revved the engine and "the vehicle then lurched forward… pushing Dep. Rogers against the pumps." Two other deputies at the scene and the convenience store clerk stated that they believed Kollmann was about to crush the deputy.

Rogers, fearing for his life, fired twice into the car, hitting Kollmann once in the neck. Miraculously, the bullet missed all vital structures.

The wounded man fled, leading deputies on a 15-mile high-speed chase through Oro Valley and the Northwest. Harvey, a squad leader in the Foothills District who was working in Catalina that night, got a call on the radio advising him there had been an "officer involved shooting." He joined the chase, which ended when officers cornered Kollmann in a cul-de-sac in the 8100 block of N. Midnight Way.

"… when (Kollmann) first stepped out of the vehicle his hands were up," Harvey told department homicide detectives that night. "And then he started to move his hands down… he didn't put 'em (sic) in his waistband or in his coat. We didn't give him a chance to."

Another deputy tackled him and then so did Harvey. "My understanding was there was an officer involved shooting and I wasn't quite sure who had done the shooting. Deputy Rogers did say (the suspect) tried to run him down but I didn't know if the suspect had also shot at him… In my mind, the suspect was armed and dangerous and he was trying to get away from us after he tried to kill another officer by running him down or by shooting him."

Once on the ground, Kollmann continued to fight. "I was extremely concerned that he had a weapon on him. That he would pull it out and during the struggle someone was going to be shot, either myself or the other deputies," stated Harvey. "So I butt-stroked him in the head with (the rubber end of) my shotgun." He stated he did that once more and then once in the back. "We were finally able to get his hands out and handcuff him." They found no weapon.

Now subdued, Kollmann was bleeding heavily. Harvey cut away part of the man's shirt and applied pressure to his throat to staunch the bleeding. "Then I started to talk to him. Asked him his name and where he lived. Asked him why he was in Tucson because he said he lived in Phoenix. He said he was here to visit his mother. Got his mother's name and address. Then I asked him why he ran. He said he was scared. I asked him why he tried to run over the deputy. Again he said he was scared." Harvey asked if he'd been drinking or using drugs. Kollmann replied that he'd smoked "quite a bit" of marijuana that night.

Harvey's sergeant, Roland Youngling, who had just arrived on the scene, observed that the suspect's eyes were glassy and had started to roll back in his head. He testified at the Merit System Council hearings that he saw the deputy slap Kollmann, repeating, "… come on buddy… wake up… wake up."

"My guy was bleeding out. I was trying to keep him conscious and find out what happened," Harvey told the Northwest EXPLORER.

Five months after his arrest, Kollmann sent two rambling letters from the Pima County Jail to the Sheriff's Department charging that Harvey and Rogers used excessive force and violated his civil rights.

In a June 1 reply to Kollmann, Sgt. Brad Foust, supervisor for the department's Internal Affairs Unit, wrote, "The incident you refer to was previously reviewed by the Department's Shooting Review Board and the deputy involved was exonerated of any malfeasance at that time. No further action will be taken in this matter."

In early December 2000, Kollmann, then 27, was tried for attempted murder of Deputy Rogers, assault on a police officer and felony flight.

The judge in that criminal case ruled Kollmann's answers to Harvey on the night of the arrest inadmissible in court. Jurors acquitted him of trying to harm Deputy Rogers but did convict him of felony flight. The judge sentenced him to three years in prison. A few weeks later, Kollmann filed an excessive force complaint against Pima County, Chris Rogers and Joe Harvey.

Over the next weeks or months, that lawsuit came to the attention of Pima County's Risk Management Director David Parker, who had been a San Diego cop 20 years earlier.

Parker, whose current job is to prevent and control financial losses to the county, testified at the hearings that he became worried about Harvey after speaking to an unnamed county investigator who told him Harvey had butt-stroked Kollmann in the head during the arrest.

Parker drew up a chronology of five other claims against Harvey, which were settled by the county at a cost of $227,438. Two were traffic claims - one a high-speed chase of a suspect - for which Harvey never denied responsibility. The other three were lawsuits claiming excessive force during arrest incidents.

"I noticed a pattern that, to me, looked like always having to win the situation at the moment," Parker testified at the hearing. "I also noticed that a shotgun was involved in several cases where I wasn't sure a shotgun was appropriate."

Upon questioning by Harvey's attorney Mike Storie, Parker conceded that he had not investigated the deputy's role in any of the three lawsuits and was unaware that the Sheriff's Department had cleared him in every instance.

Instead, the Risk Management director contacted the Sheriff's legal advisor at the time, Gerard Guerin. "I asked him to make sure the Sheriff's Department knew about it and to take whatever action they believed was appropriate."

Some time after that, Sheriff Clarence Dupnik and his senior command staff acquired a transcript of the Kollmann criminal trial.

In it, Kollmann's defense attorney cross-examined Harvey about the questions asked of his client on the night of the arrest.

Q: When you asked him the questions why he ran, that was maybe so you could get an incriminating response from him, yes or no?

A: I was trying to find out what happened.

Q: Well, that was to get an incriminating response from him though, right?

A: That is correct.

"What I was trying to say was anything you ask him can potentially be incriminating," Harvey told the Northwest EXPLORER. "I thought the guy was dying, there might be other parts of this case we want information about." As far as he knew at the time, the man had tried to kill one deputy already.

That testimony became the crux of the sheriff's case against Harvey.

"… it's my judgment that that conduct - and I'm talking about the hard slapping to the face under the circumstances to elicit the confession, in my judgment - and I'm not a lawyer - is a violation of a 1983 Civil Rights Act and is very egregious in and of itself," the sheriff testified at the hearings. "And that act alone, in my judgment, warrants termination."

A decade ago, the sheriff himself was named in a civil rights violation lawsuit, Cooper v. Dupnik. In 1986, Sheriff's Department deputies mistakenly took Michael Cooper into custody and grilled him for hours despite his requests to remain silent and call a lawyer. The department had received information from Tucson police fingerprint technicians, which wrongly identified Cooper as the "Prime Time Rapist." Cooper lost his job and apartment as a result.

In a lengthy 1992 ruling, the U.S. Circuit Court of Appeals for the 9th Circuit quoted Sheriff Dupnik as condoning such techniques if his deputies were trying to "save somebody else's life."

The court found in favor of Cooper, describing his experience as a "totalitarian nightmare," and a violation of his rights against self-incrimination and guarantee of due process.

According to newspaper accounts, the county and the city of Tucson paid $550,000 to settle the case in 1993.

In Harvey's case, the three deputies and a sergeant who were eyewitnesses to the Kollmann incident each testified that the deputy did nothing wrong.

"They paint this picture that I'm some rabid dog that goes out and beats on people," Harvey told the Northwest EXPLORER. "That's not true."

Lt. Terry Parish, Harvey's district commander on the night of the Kollmann arrest, served on the Shooting Review Board that looked into the incident a few months after it happened.

"I frankly have a difficult time referring to this as deadly physical force," he testified at the hearings.

He called it "remarkable that (Harvey) was able to accomplish his purpose without injuring this guy, and that purpose, making sure he didn't come out with a weapon and shoot the deputy standing there."

Parish said that to his knowledge, Kollmann suffered no injuries other than the shooting by Deputy Rogers.

"Did you review the medical reports?" asked Deputy County Attorney Leslie Lynch.

"No, it would have been an issue for the (shooting) board of inquiry if there were medical reports."

Lynch pressed the lieutenant further. "Is it unreasonable in your opinion for Sheriff Dupnik to believe that Deputy Harvey's purpose in slapping Mr. Kollmann that night was to elicit incriminating statements from him?"

"If you look at it in its entirety, I would say that's not an accurate assumption," Parish replied.

But Harvey had a history of disciplinary actions, mostly for profanity and car accidents, as well as a substantial number of complaints over 14 years of nights working the streets.

The Merit System Council report identified 79 complaints, 26 of them for excessive force.

Only nine of the 79 complaints were sustained, and "all 26 use-of-force complaints were either exonerated (his actions were appropriate) or unfounded (he did not do what was alleged)," according to the report.

One of the sheriff's top aides, Assistant Chief Martha Cramer, conceded at the hearings that the department often received false complaints.

"… we get people who want to get deputies in trouble and figure that's a good way to do it."

Merit System Council Hearing Officer Michael Hellon noted in his report that Harvey had "been a patrol deputy far longer than is the norm, that he has worked the most active shifts in the most active districts, and that a partial consequence is that he has received more complaints than is normal for a deputy."

Over his career, Harvey also received 101 commendations and letters. Sheriff Dupnik awarded him the Medal of Valor for saving the life of a pregnant woman who's estranged husband tried to kill her. The deputy also earned a Medal of Merit for pulling an unconscious victim out of a burning trailer.

Yet Harvey had come to be viewed as a financial liability.

"My feeling is if (Harvey) were restored to his job, that we would be subject to negligent retention," Cramer testified at the hearings. "If the County in this case were to keep an employee… knowing that… they might do something dangerous, completely out of line or illegal, then I think they would be retaining that person negligently and would be subject to a lawsuit and probably paying out a lot of money because of it."

Harvey had to go.

"I would say that the decision to terminate him came from the sheriff somewhere during the discussion or provision of the (Kollmann criminal) transcript," Cramer testified at the hearings. "There was a lot of discussion about how this was going to happen, how do we get past the problems that are involved in this and what's the best way to do this, so that we can accomplish the task of making sure that this man is not a deputy anymore."

Later, questioned by Storie at the hearings, Sheriff Dupnik denied he'd made such a decision and couldn't account for Cramer's testimony.

Sometime in early 2001, Cramer tasked Lts. Sanford Rosenthal and Chris Radtke to look into Harvey's history, both the "good and the bad."

In a June 7, 2001 memo to Cramer, Rosenthal wrote that after speaking with three of the deputies involved in the Kollmann arrest, "I believe the use of force by… Deputy Harvey was appropriate and within Department guidelines."

In late August 2001, Harvey was suspended anyway. In early September, the department launched an Internal Affairs investigation and re-interviewed the deputies involved in the Kollmann shooting.

Harvey was fired Sept. 24, 2001. His termination letter cited the Kollmann incident and several peripheral offenses, including being AWOL from duty for up to an hour to drive an intoxicated female friend home, a version of events Harvey has disputed.

"I'm bringing this girl home in her parents' car. I'm back in 15-20 minutes tops," he told the Northwest EXPLORER. "Her mother's in the front yard, there's nothing weird going on." As the squad leader in charge of the swing shift, he made arrangements for another deputy to pick him up and had his radio with him to take calls.

"If I was going to do sneaky stuff, I'm not going to call some deputy to help me. Married guys sneak around. I'm single, I don't need to do that," he said. "I ask who's making this allegation? I was told, 'Joe, we don't know, the commanders won't tell us, they're just ordering us to do this."

The termination letter also cited Harvey's repeated falsifying of jail booking sheets with emergency contacts listed as "Bill Clinton," address, "the White House," which he conceded he did as a "dumb joke" when no other contact information was available. Not one witness at the hearings could think of an occasion where booking sheets were ever used in court. There was also a confrontation with another officer at a shooting at Harvey's apartment complex while he was off duty.

The hearing officer concluded that none of the three incidents merited termination.

The lesser infractions fell away two weeks after Harvey's firing, when a memo by Lt. V. Fontes, of the department's Office of Special Investigations, cited the deputy's use of "excessive force" when he butt-stroked Kollmann as the reason the department's Disciplinary Review Board had recommended termination.

On a local radio show that aired last September, a caller asked Dupnik why a good cop like Harvey was sitting at home when he could be out on the street protecting people. Dupnik characterized Harvey as a rogue cop who "killed two people."

The sheriff failed to mention that in one of those instances, in 1999, he awarded the deputy a Medal of Valor. In the other, in 1992, a suspect reported to be shooting up the neighborhood tried to kill Harvey with a shotgun before the deputy shot him in self-defense. Two of Harvey's supervisors nominated him for the Medal of Valor for bravery in that incident.

Harvey thinks his standing in the department started to go downhill after that 1992 shooting, in which he killed Peter Gilbert Nunez, the nephew of an aide to Sheriff Dupnik. Although the deputy was cleared in the incident, the county later settled a lawsuit brought by the man's mother for $100,000.

"The command staff kept me at arm's length after that," he said. "For years I would put in for things - SWAT, K-9 Patrol." The department passed him over for promotions.

"But I never really wanted to leave patrol," he said. "So it was like throwing a rabbit into a briar patch."

Harvey stayed on the streets.

In the 1999 shooting, Harvey and another deputy, Sgt. Terry Parish Jr., an Oro Valley councilmember and the son of Lt. Terry Parish, each shot a suspect who pulled a gun on his estranged, pregnant wife. Both men received a Medal of Valor from Sheriff Dupnik for their actions in that case.

In April of this year, just before Kollmann's civil suit against Deputies Rogers and Harvey went to trial, Harvey ran into the county's top criminal prosecutor, Rick Unklesbay, at the Rincon Market.

"He said he was surprised we didn't call him as a witness. My ears perk up because this is news to me," Harvey told the Northwest EXPLORER. "He said a detective from Internal Affairs walked over the file on the Kollmann case because they wanted me criminally indicted and wanted him to give an opinion on the case."

Harvey said Unklesbay told him that he'd written an opinion letter verifying "not only did you not do anything criminal, but you showed great restraint in not shooting (Kollmann)."

Harvey's attorney Storie immediately called the prosecutor, who confirmed what he had told Harvey.

A flurry of letters went back and forth between Storie, the County Attorney's Office, the Sheriff's Department and attorney Chris Enos, who was about to defend Harvey in the civil lawsuit filed by Kollmann.

Later, Unklesbay told Storie that he couldn't find the letter and might have given a verbal opinion instead.

The county hired attorney Richard Davis to look into the matter. No letter was ever recovered.

Like Sheriff Dupnik and Leslie Lynch, Unklesbay could not speak on the matter because the case is still in litigation.

Even without the Unklesbay letter, Kollmann's long awaited excessive force suit evaporated like rain in the desert. The judge in the case heard Kollmann's evidence and that afternoon delivered a directed verdict clearing Harvey of any wrongdoing.

"There wasn't anything there," Enos said in an interview. "The court ruled that the force Joe used was justified and there was no evidence to show (he) did anything wrong."

The civil jury found in favor of Deputy Rogers. Kollmann got nothing.

In a June 1 letter to Sheriff Dupnik, Kollmann's own lawyer in the case, attorney David Hardy wrote, "We lost fair and square," and Harvey's "been cleared about as convincingly as a person can be in court."

In an interview, Hardy said it was the first and only such letter he'd ever written.

"I read through the file. The arguments made for firing him were awfully thin," he said. "I think they were worried about their liability in the Kollmann case. It was obvious there were no grounds for firing him at all. They didn't have guts enough to say it, so they drummed up a bunch of chicken feed to throw at him.

"They should have been good losers about it instead of continuing on a course where they've got to know they're going to lose, and at taxpayer expense," he said.

The county has now spent almost twice as much to get rid of Joe Harvey as it spent on claims filed against him.

Since March 2003, Harvey's been receiving his $49,500 annual salary to sit at home. There is also the matter of the deputy's $73,964 in back pay. Legal fees and expenses to date are in the neighborhood of $280,000.

"The gods do not give all virtues to one man; some of us are good at one thing, others at other things," Hardy wrote to the sheriff. "Deputy Harvey strikes me as the type of fellow who makes decisions and acts… if my butt or those of my family are ever on the line, please send Deputy Harvey! And that's from the fellow who sued him."

After Harvey's termination, the department went after his peace officer's certification. Because of the many legal proceedings involved in the case, the Arizona Peace Officers Standards and Training Board waited until August of this year to review it and make a determination.

All law enforcement officers in the state must be certified by AZPOST.

On Aug.18, the board declined to revoke Harvey's certification.

"The board reviewed the case and voted to take no action regarding Deputy Harvey's certification," said Tom Hammarstrom, AZPOST's executive director. Given the "totality of the circumstances, the board could not sustain a discipline action. Those elements weren't there.

"Did the behavior violate rules of the board? Excessive force would be one. Civil rights violations are, of course, federal matters."

Hammarstrom said. "One side of the story was the fear that the officer slapped him in an effort to extract information. The other side was that the slapping and questioning was to keep (Kollmann) awake." The board took the position that Harvey was attempting to keep the suspect conscious until paramedics arrived.

Sheriff Dupnik is a member of the 13-member board but did not attend that meeting.

The department's second legal appeal in the Harvey case was heard two weeks ago in the state Division Two Court of Appeals, but not before a draft opinion damaging to Harvey was published in the local press.

Attorney Lyle Aldridge, representing the Sheriff's Department, told the court that the Merit Council did not have the authority to overrule the sheriff's judgment and reinstate the deputy.

"It's important that the decision remains with the Sheriff," Aldridge said. "He's the one who's answerable to the voters."

In 1999, the Pima County Board of Supervisors adopted a new rule giving its Merit System Commission broader authority to decide employment issues for public workers.

"Within days, Sheriff Dupnik filed a special action," challenging the new rule, said attorney Barry Corey, who represented the Council. At that time, the same court denied relief to the sheriff.

Based on its prior ruling, Corey asked the court to reject its draft opinion in the Harvey case.

"Mr. Aldridge has said the employee prevailed so the sky is falling, the system's broke, but that's not the truth. It worked the way it was supposed to," Storie told the appellate judges.

The court's decision on the matter is pending.

"The worst that can happen is they send it back to the (council)," to decide the matter under the old standard, Storie said.

After three years of eating, breathing and sleeping his case, and every day walking "on shifting sand," Harvey only wants to clear his name and get back to the job he loves.

"I made a conscious decision to marry this job years and years ago. It's like she fools around on you but you still love her and don't want to let her go," he said. "If I don't go back, then why fight to clear my name? Why go through this hell, this nightmare?"

Harvey grew up in a tough neighborhood on the south side of Tucson. His father beat him until the age of 7, and then abandoned the family.

"I told myself someday I was going to be in a position where I was going to defend myself. "People told me you're no good, you're never going to amount to anything," he said. "Now my department tells me you're no good, you're a criminal, you're out of here. I can't run away from that. I have to do everything I can to prove I didn't do those things - if they say I beat a confession out of a guy - I can't let that go - that didn't happen.

"At every turn I've won - how many times do I have to keep proving I didn't do anything wrong?"

THE DISPUTE: Timeline

Dec. 1999: Petty burglar and felon Michael Kollmann shot by Deputy Chris Rogers who believed Kollmann was about to crush him against a gas pump island with his car. After a 15-mile chase, Deputy Joe Harvey arrests Kollmann, hitting him with the rubber end of his shotgun in order to subdue him. Harvey asks him why he ran and other questions and slaps the suspect as he begins to lose consciousness. Detectives interview all participants and eyewitnesses that night.

March 2000: Shooting Review Board reviews Kollmann arrest and finds no wrongdoing by either deputy.

May 2000: Kollmann files jailhouse complaint with Internal Affairs charging excessive force was used in his arrest.

June 2000: IA replies that the matter was investigated and the complaint is considered closed.

Dec. 2000: Criminal trial convicts Kollmann of felony flight but acquits him of trying to harm Dep. Rogers. He files a civil lawsuit against Pima County, Deps. Rogers and Harvey for excessive force.

Early 2001: Pima County Risk Management/Sheriff's Department command staff learn Harvey hit Kollmann in the head with the butt end of his shotgun while arresting him.

June 2001: Lieutentant tasked to investigate Harvey writes memo finding Harvey's actions justified.

Aug. 2001: Harvey suspended.

Sept. 2001: IA launches another investigation of Harvey, who is fired a few weeks later. Harvey appeals his firing to the Pima County Law Enforcement Merit System Council.

Oct. 2001: Disciplinary Review Board finds Harvey used excessive force in the Kollmann arrest.

Dec. 2001: 11 days of county Law Enforcement Merit System Council hearings begin.

July 2002: Merit Council releases 32-page report on Harvey case.

Sept. 2002: Council votes unanimously to reinstate Harvey with back pay.

Dec. 2002: Back pay hearing held.

Jan/Feb. 2003: Sheriff files special action to keep Harvey off payroll.

March 2003: Superior Court denies special action. Harvey reinstated.

Sept. 2003: Superior Court denies Sheriff's Department appeal to overturn Council's reinstatement of Harvey. Sheriff Dupnik characterizes Harvey as a murderer on local radio show.

March 2004: Sheriff's Department files second appeal with state Division Two Court of Appeals.

May 2004: Kollmann loses civil lawsuit after the court finds in favor of Deps. Harvey and Rogers.

Aug. 2004: Harvey's attorney files defamation lawsuit against Sheriff Dupnik for his remarks on radio show. AZPOST declines to revoke Harvey's law enforcement certification.

Sept. 04: Division Two Court of Appeals hears oral arguments; draft opinion damaging to Harvey leaked to local media. A decision is pending.

© 2014 The Explorer. All rights reserved. This material may not be published, broadcast, rewritten or redistributed.

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