Police probe: Veteran Lowell cop struck handcuffed student
http://www.lowellsun.com/breakingnews/ci_30724363/police-probe-veteran-lowell-cop-struck-handcuffed-student
LOWELL -- Patrolman David Pender, a 28-year veteran of the Lowell Police Department, will soon learn if he keeps his job after an internal investigation found the officer used unnecessary force in an altercation involving a 16-year-old student at the Lowell High School Career Academy.
The 87-page report, obtained through a public records request by The Sun, has been forwarded to City Manager Kevin Manager who will decide what disciplinary action should be taken against Pender.
The report details an incident that took place on Sept. 15, 2016 at the Career Academy on Smith Street, a grade 9-12 school for youths with behavioral problems.
Pender is said to have handcuffed a student behind his back and ordered the room cleared of any possible witnesses before grabbing the 16-year-old boy by the neck, striking him in the head, and threatening to spray him with Mace.
Lt. Greg Hudon, officer in charge of the Professional Standards Division, conducted the probe.
Pender, a school resource officer (SRO) at the Career Academy, will not be criminally charged, said a spokesman for Middlesex District Attorney Marian Ryan.
Police Superintendent William Taylor apologized to the student and his family, on behalf of the city. Murphy called the incident "unfortunate and serious."
The incident unfolded during the mid-afternoon hours when the student was suspected of having a bag of marijuana in his pocket.
"Due to the fact that Officer Pender ordered the room cleared, this writer is left with only two witnesses, Officer Pender and (redacted). Officer Pender cannot offer any plausible explanation as to the origin of the marks and bruises," on the victim, Hudon wrote in his report.
"This fact, coupled with (redacted) statements and the additional medical records and photographs and text messages to his aunt, leaves this writer to draw the following conclusion: Based on all available information, this writer finds by a preponderance of the evidence that the allegation of misconduct is sustained, based on the following violation of the rules and regulations of the Lowell Police Department:"
* Prohibited conduct -- unnecessary force, "or the use of more physical force than that which is necessary to accomplish a proper police purpose."
The victim told police that when Pender "released his throat" he "slapped him on the side of his head" and threatened to spray him with Mace "if he didn't shut his mouth."
By all accounts, Hudon wrote, the youth was argumentative, challenged Pender's authority and at one point challenged the officer to arrest him.
"These words do not rise to the level of assaultive behavior or resisting arrest requiring the application of any additional force," Hudon wrote.
The report also includes Pender's account, taken from the officer's arrest report.
Pender wrote the student refused to empty his pockets and became "loud and confrontational." The officer said the student raised his hand to his chest and refused to put it hand down. Noting the student's "agitated state," Pender said he feared the student might assault him.
"I asked school staff to step out of the office area," Pender wrote in the arrest report. "He continued to be loud and disrespectful demanding me to arrest him."
Pender declined to comment through Officer Francisco Maldonado, president of the Lowell Police Association, the union that represents police officers. Pender is union vice president.
Sgt. David Peaslee, the officer in charge of all SROs, had warned SROs about conduct based on an September 2015 incident at a South Carolina school. A school resource officer in Columbia threw female student to the floor when she refused to stand and leave the classroom. A video went viral. The officer was fired.
In the Oct. 29, 2015 email, included in Hudon's report, Peaslee wrote:
"My take on this incident? We lose. A police officer, with his/her gun, spray, PR24 (baton), badge, etc., is always going to look bad on film whenever we attempt to arrest a juvenile student. Protect yourselves. Do not lose your career over a misdemeanor arrest. Act appropriately and attempt to de-escalate every situation. And above all, it is your decision to make an arrest. Not the principals' or house master decision. Summons is always our best option."
Peaslee told Hudon the practice of clearing a room arose as a result of the South Carolina school incident. The practice can be useful because the problem child will not "have an audience to play to."
Clearing a room does not include "clearing security officers or other personnel that would be in a position to help the officer," Hudon wrote. "Sergeant Peaslee expressed he would never want an officer to be in a position of being alone in a room with a student where a misconduct allegation could be made."
In a statement, Taylor said: "I am disappointed in the officer's actions during this incident. The student's behavior was a contributing factor in this event; however, once the student was placed under arrest without incident, the student was subjected to unnecessary force. The entire school community trusts the Lowell Police to care for all students professionally and appropriately. In this incident the officer violated that trust. The student was held accountable by the juvenile justice system; likewise action will be taken to hold our personnel accountable. As superintendent of the Lowell Police Department I have apologized to the parties impacted by the officer's misconduct."
Said Murphy: "This is a very unfortunate and serious situation and the city will take appropriate action." Murphy added he'll make a decision by the middle of next week.
Pender, who earns nearly $87,000 a year, was placed on paid administrative leave Nov. 11.
The Sun reported at the time that DA Ryan was conducting her own investigation. It's unclear precisely why Ryan chose not to pursue criminal charges, but DA spokesman Meghan Kelly said in an email: "While we do not speak to specific investigations when no criminal charges have been filed, there are many reasons why an investigation may not have led to charges. This includes, primarily, our assessment as to whether we have sufficient evidence to sustain our high burden of proof."
However, a Dec. 12 email from Katharine Folger, chief of the DA's Child Protection Unit, to Hudon, a copy of which was acquired by The Sun, said the boy's father "steadfastly maintained" he did not want to pursue criminal charges.
Pender was arrested by Lowell police on New Year's Day in 2013 at his Lowell residence on domestic assault and battery charges. He was immediately placed on paid administrative leave by Kenneth Lavallee, then police superintendent.
Pender's wife declined to press charges. City officials disciplined Pender with 10 punishment days, working for no pay.
Pender was also one of seven Lowell police officers who were accused of sexually harassing a female colleague during an off-duty bus trip to a political rally in Boston in October 1998. Then-City Manager Brian Martin suspended Pender for a year without pay. Pender appealed to the state Civil Service Commission and was successful in reducing his punishment to six months.