WEST MEMPHIS — A former West Memphis police officer who had the support of other officers and the chief despite his misdemeanor conviction for attacking a handcuffed man in the department’s lobby will serve three years’ probation, a federal judge decided Wednesday.
Under the law, Scott Mc-Call, 39, was eligible for one to five years’ probation in lieu of prison, but also faced up to a year in prison.
He resigned from the department after losing his temper on the evening of June 14, 2010, and choking Michael Young, who had was at the department to complain about his daughter receivinga traffic ticket, and then began yelling insults at officers when he was told the ticket couldn’t be rescinded.
Young continued yelling after he was arrested for disorderly conduct and was sitting in a chair against a wall, awaiting transfer to the jail, with his hands cuffed behind his back.
When he shouted that twoofficers who had been killed on duty three weeks earlier “deserved what they got,” McCall, who had been friends with the slain officers, rushed to where Young was sitting and lifted him partially out of his seat as he began choking him, before dispatchers in an adjacent room ran in and pulled him off Young.
One of the dispatchersthen walked McCall into the dispatch room to cool off, while other officers were summoned and took Young out of the building. Young sought medical attention on his own after being released from jail, but wasn’t hospitalized.
The U.S. Department of Justice indicted McCall onApril 6, 2011, on one felony count of depriving Young of his civil rights.
After a jury trial that lasted nearly two weeks, a federal jury acquitted McCall on March 30 of the felony charge, finding that he didn’t cause Young bodily harm. Jurors did, however, convict him of a lesser, misdemeanor civil-rights violation.
In court for sentencing Wednesday, McCall’s attorneys LaTrece Gray and Nicole Lybrand of the federalpublic defender’s office disputed recommendations in a presentence report that McCall should face 27 to 33 months in prison under federal sentencing guidelines.
The attorneys objected to a proposed sentencing enhancement for using his status as a police officer to inflict harm on Young, noting that acting “under color of law” was already an element of the charge for which he was convicted.
Moody rejected that and other defense arguments, but said the guideline range exceeded the statutory maximum sentence anyway, so itcouldn’t be applied.
Gray cited several letters of support written on McCall’s behalf by the West Memphis police chief and other members of the department, including one letter crediting McCall for saving a woman’s life. Gray noted that McCall has sole custody of his 7-year-old son, who sat in the front row in the courtroom gallery; that the incident had caused him to lose his job; and that a codefendant was acquitted by another jury.
In late July, a federal jury acquitted Lester Ditto, an internal-affairs officer forthe West Memphis Police Department, of three witness-tampering charges alleging that he intimidated two dispatchers into lying in recorded statements about the choking incident, to protect McCall.
Assistant U.S. Attorney Tricia Harris didn’t voice a sentencing preference, and Young, who was in the courtroom with his attorney, John W. Walker of Little Rock, opted not to address the court.
“Any use of excessive force, even when it doesn’t result in bodily injury, is serious,” Moody said. He alsonoted that even though Mc-Call was provoked, his response was “inappropriate.”
But in deciding on probation, to include 100 hours of community service work during each of those three years, Moody credited the jury’s conviction of McCall on a lesser offense, McCall’s absence of a criminal history, no indications that McCall will commit another offense, evidence that he is a good father and has sole custody of his son; and the support of other police officers, including the chief.
McCall still faces Young’s civil lawsuit, filed by Walker,which seeks compensatory damages against McCall and the department.
In addition, he is one of several defendants in another lawsuit alleging excessive force against the city of Marianna and its Police Department, for which McCall worked for three years, beginning in 2003. In that case, Florence Matthews is seeking damages for the death of her 18-year-old son, Orlando Matthews, who was shot by police during a traffic stop in 2006. Gray told Moody that McCall was a backup officer in that episode and didn’t fire his gun.
Northwest Arkansas, Pages 7 on 09/27/2012