Police, The Fourth Amendment, Qualified Immunity

If this doesn’t flush Andy Kaufman out of hiding, then nothing will

leave a comment »

Case:  Dempsey v. BUCKNELL UNIVERSITY, Court of Appeals, 3rd Circuit 2016

On Sunday, September 5, 2010, BUPS officer Julie Holtzapple received a phone call from the father of a nineteen-year-old Bucknell undergraduate, Kelly Stefanowicz, reporting that she had been assaulted by a fellow student, Reed Dempsey, on campus in the early hours of that day. Officer Holtzapple requested that Stefanowicz come to the BUPS office to speak with her and other officers about the incident, which Stefanowicz did. In that interview, Stefanowicz gave a detailed account of the incident. She explained that, after a night out during which both she and Dempsey had consumed alcohol, the two began playfully “wrestling,” first in Kelly’s room, then in the hallway of their shared residence hall, and finally in Dempsey’s room, where other students were gathered. J.A. 322. When the other students left the two alone, Dempsey “picked [Stefanowicz] up and . . . put [her] on the futon” in his room, got on top of her, and put her hands over her head. J.A. 322. Stefanowicz told the officers that Dempsey “was . . . getting off to it” and that “he was . . . hard to it.” J.A. 327. She stated that they then struggled on the futon, and she “br[oke] free from him” and ran into the hall where other students were gathered. J.A. 322. Stefanowicz explained that when she entered the hall, she was laughing because she was out of breath and “in shock,” but that when Dempsey caught up to her in the hall she “five-starred [i.e., slapped,] him right across the face” and told him to “leave [her] alone” in front of the other students. J.A.322, 324. She reported that as she was walking away from him, he grabbed both of her arms, causing her to fall, and “tackled” her to the ground, where she struggled, sustaining large scrapes and bruises to her face and shoulder, which were visible to the officers who interviewed her. J.A. 324. She told the officers that she also had marks and bruises in several other places, including her “inner thigh,” “butt,” and “boobs,” as a result of the incident. J.A. 324-25.

Stefanowicz also recounted in this interview that after she had returned to her room, her resident advisor (“R.A.”), a fellow Bucknell undergraduate, came by her room, asked her if she was going to file a report, and “kind of just . . . laughed.” J.A. 325. She then showed the interviewing officers three text messages that she had received from Dempsey after the incident: one at 2:43 AM that read, “Sorry . . . I’m bleeding in several places and bruises all over . . . but that was unnecessary on my part”; one at 3:35 AM that read, “I honestly feel horrible . . . I’m so sorry”; and one at 5:11 PM that read, “Are you alright?” J.A. 335. Following the interview, Stefanowicz went to a nearby hospital for a medical examination in which staff noted injuries to her “head,” “chest,” and “right lower extremity” and took photographs documenting these injuries. J.A. 851.

That same day, another BUPS officer contacted Dempsey, who agreed to meet for an interview regarding the incident. Dempsey gave the interviewing officers a written statement he had prepared, as well as an oral interview.[2] As reflected in the incident report, Dempsey told the officers that after a night out with friends, he returned to his residence hall, that he and Stefanowicz “started wrestling around in [Dempsey’s] room,” as they had done in the past, and that “it started to get more intense and Stefanowicz punched him in the groin.” J.A. 268. According to Dempsey, although his roommate, Wade Payson-Denney, and his roommate’s friend, Gabriela Ors, were in the room with them “pretty much the whole time,” there was a period of “about a minute” during which he and Stefanowicz were alone in the room, and “that is when he got punched in the groin.” J.A. 268. Dempsey stated that Stefanowicz then got up and went into the hallway, and he followed her and “asked her to come back and she wouldn’t so he caught up to her and . . . placed his arms around her and gave her a bear hug,” causing the two of them to fall forward. J.A. 268. Dempsey explained that at that time he expressed concern “that he hurt her and that he would be in trouble,” and Stefanowicz told him “she was not going to press charges or get him in trouble.” J.A. 268. Dempsey reported, however, that “[a]fter everything started to die down . . . Stefanowicz would walk by him and either slap or punch him in the back to try and get him going again.” J.A. 268-69. Dempsey stated that at that point, he “went back to his room and stayed there the rest of the night.” J.A. 269.

Following the leads from Stefanowicz’s and Dempsey’s interviews, BUPS obtained written statements from a number of people who had witnessed parts of what occurred first-hand or had spoken to Stefanowicz or Dempsey soon after the incident. These included, among others, fellow Bucknell undergraduates Morgan Slade, Demitri Carahalios, Wade Payson-Denney, Gabriela Ors, Kristen Brundage, Gregory Fast, Raina Masand, Andrew Watts, Rebecca Neubauer, and Stefanowicz’s R.A., Michael Sena. BUPS also obtained a written statement from Stefanowicz recounting the incident.

Based on this evidence, on September 7, 2010, BUPS filed a criminal complaint, accompanied by an affidavit of probable cause signed by Officer Holtzapple, charging Dempsey with simple assault, harassment, and disorderly conduct in violation of Pennsylvania law. On the basis of that complaint and affidavit, the magistrate issued a warrant, and Dempsey was arraigned that same day. The affidavit provided the following distillation of the results of the BUPS officers’ investigation into the incident.

On Sunday, September 5, 2010 at approximately 1957 hours, Officer Darrel Fisher, Officer Robert Ulmer and Officer Jule Holtzapple, all are officer’s currently with the Bucknell University Department of Public Safety/Police Department, spoke with Kelly Stefanowicz.

Kelly Stefanowicz interview is as follows:

On Sunday, September 5, 2010, at approximately 0200 hours, Kelly walked home with two of her friends, Morgan Slade and Demitri Carahalios, to her room, 166 Smith Hall, Bucknell University, Lewisburg Pa. 17837.

Before entering her room, Kelly had pointed at Reed Dempsey. Reed then proceeded into Kelly’s room and hung out with Kelly, Morgan, and Dimitri. Kelly stated that Reed and she began to wrestle playfully in her room. Kelly stated she was not intimidated by Reed at this time and believed wrestling to be playful.

Kelly stated that after a short time Reed had picked her up and carried her over his shoulder. Reed Dempsey carried Kelly Stefanowicz into his room, which is Smith 138, Bucknell University, Lewisburg Pa. 17837.

Two people were in Reed’s room at this time, roommate Wade Payson-Denny and Gregory Fast. Kelly stated that Reed put her down from carrying her and sat her on his lap. Reed would not release Kelly from his lap and held her down, making her sit on his lap.

Kelly stated shortly after this happened, both Wade Payson-Denny and Gregory Fast left Reed Dempsey room. Reed’s room door shut automatically, after both men left the room.

Kelly stated that at this time she no longer felt safe around Reed. Kelly stated that Reed’s behavior had turned instantly. It was at this time that Reed picked Kelly up from sitting on his lap and threw her onto a futon in the room. Reed laid on top of Kelly keeping her from sitting up. Kelly stated she attempted to push Reed off of her. He grabbed both of Kelly’s hands and held them forcefully above her head. Kelly stated that Reed’s penis was now erect under his clothes. He was on top of her and pinning her to the futon. Kelly believes that Reed was excited and that he was in total control of her. Kelly began to yell at Reed “to get off of me” and “just stop it.” She was in fear of getting raped by Reed. Kelly was able to release one of her hands and slapped Reed across the face. Kelly and Reed then rolled off of the futon, falling to the floor.

It was at this time that Kelly fell to the ground and landed on top of Reed. Kelly was able to get off of the ground, open the closed door, and run out into the hallway.

As she was walking away from Reed, and ignoring him, as he was calling for her to come back into his room. Kelly stated that people in the hallway were laughing at Reed and making fun of him because Kelly had turned him down in his room.

Reed next grabbed Kelly’s arm and began to pull on it. Kelly attempted to get away from Reed by pulling away from him. Reed then grabbed both of Kelly’s arms and held them behind him. Reed then fell onto Kelly, causing her to fall to the floor, landing on the left side of her face and also her right shoulder. Reed then stood up. Kelly then proceeded to her room, 166 Smith Hall, Bucknell University, to end this encounter.

Kelly displayed text messages from Reed following this incident. Text messages were sent at 0243 hours, 0335 hours, and 0511 hours. Photographs were taken of messages on phone from Reed. These messages related to remorse for this incident and he was checking on her welfare.

Kelly Stefanowicz wants to proceed with criminal charges in this case. Medical treatment was obtained at Evangelical Community Hospital, 1 Hospital Drive, Lewisburg Pa. 17837. Photographs and medical report will be obtained on Wednesday, September 8, 2010.

J.A. 452-53.

After Dempsey’s initial arraignment, BUPS officers continued to investigate the case. In her September 5 interview, Stefanowicz had told the officers that she was aware of an earlier incident between Rebecca Neubauer, another Bucknell undergraduate, and Dempsey, where Neubauer was “extremely intoxicated” and Dempsey “t[ook] advantage of her.” J.A. 324. Following up on this information, Officer Holtzapple interviewed Neubauer on September 8. In that interview and a written statement, Neubauer indicated that Stefanowicz’s version of events was not the “full story” and that she had “nothing to speak about that would be relevant to Kelly’s incident.” J.A. 275.

On September 9, BUPS officers conducted a second interview with Stefanowicz in which she discussed in greater detail the sexual component of the alleged assault against her. The following day, BUPS officers filed a second criminal complaint adding indecent assault and false imprisonment charges against Dempsey. The affidavit of probable cause was substantially the same.

After Dempsey’s arraignment on the additional charges, BUPS officers continued to gather information related to the allegations, including a second statement by Gregory Fast. Specifically, the BUPS incident report reflects that following his written statement on September 5, Fast gave an interview on September 12 in which he stated that he saw Dempsey and Stefanowicz “on a futon wrestling” and that Stefanowicz “appeared as if she was trying to pin Dempsey.” J.A. 284. The incident report also suggests, based on this statement, that Fast may have entered the room while Dempsey and Stefanowicz were alone.

On October 29, 2010, the District Attorney of Union County, Pennsylvania, Peter Johnson, withdrew all the charges against Dempsey. In a statement reported by a local news outlet, Johnson explained that “[t]he nature of the alleged crime and the surrounding circumstances make it difficult to prove what happened beyond a reasonable doubt.” J.A. 535.

Written by Burgers Allday

August 28, 2016 at 7:39 am

Posted in Uncategorized

Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out / Change )

Twitter picture

You are commenting using your Twitter account. Log Out / Change )

Facebook photo

You are commenting using your Facebook account. Log Out / Change )

Google+ photo

You are commenting using your Google+ account. Log Out / Change )

Connecting to %s

%d bloggers like this: