AMSTERDAM - A town man who says the Montgomery County Sheriff's Department violated his civil rights when he was arrested while trying to keep his vehicle from being repossessed will be allowed to make his case to a jury.
A federal judge in United States District Court in Albany last week denied bids by the county and the repossession company to have the lawsuit dismissed. Patrick J. Boles filed the suit in May 2011 against the county, Sheriff Michael Amato, Undersheriff Jeffery Smith and Sgt. Thomas Flickinger, alleging false arrest, malicious prosecution, excessive use of force and illegal seizure.
It also accuses the county, Amato and Smith of improper training and not having policies for deputies to follow. Smith retired late last year and is now the county's emergency management director.
The lawsuit also names Lisa Seymour of the American Lenders Service Company in Queensbury, and the men who towed the truck, Dakota Seymour and Deniz Kana, alleging a violation of the Uniform Commercial Code and illegal seizure.
"Boles has established genuine issues of material fact with respect to each claim," said Chief Judge Gary L. Sharpe in his 25-page decision to deny the defendants' motions to dismiss the case.
Boles said he saw headlights outside his home around 9 p.m. on May 6, 2010, and when he went outside to investigate, he saw his 1999 Ford truck attached to a tow-truck dolly, according to court documents.
He had a brief physical exchange with Kana and told Kana and Seymour he'd made the proper payments before telling them they could not take the truck and getting into the driver's seat, according to court documents. Flickinger was dispatched by the Sheriff's Department after calls from Boles' home and the recovery company, according to court documents.
Flickinger told Boles to get out of the truck, then put him in a headlock and pulled him from the seat, though in court documents, the parties disagree on the extent of the physical contact. Boles said in the lawsuit Flickinger attempted to kick him in the groin and, after allowing him to get back in the vehicle, pulled him out again with his arm.
Boles was arrested after other deputies and Amsterdam city police arrived and threatened him with a taser, he said in court filings. He was charged with resisting arrest and obstructing governmental administration and released on $1,000 bail. The charges were dismissed seven months later.
Boles' attorney, Elmer Robert Keach III of Amsterdam, said his client's objection to the repossession should have ended that effort that night, since the recovery company had not obtained a court order. The truck was only seized after the Sheriff's Department intervened, he said.
"There are questions of fact with respect to whether Flickinger was engaged in authorized conduct at the time of Boles' arrest, or whether he was unlawfully aiding a private repossession," Sharpe said in his ruling.
"I think it's complete ignorance of the limits of a police officer's power and that ignorance was shared equally by Sheriff Amato, Undersheriff Smith and Sgt. Flickinger," Keach said Tuesday. "The law at the time this occurred was clearly established that a police officer is not allowed to get involved in a private repossession."
Montgomery County Attorney Douglas Landon said the county's insurance company is handling the case, and the county will appropriately defend itself.