A former police officer's use of force during a 2016 arrest, which his chief called "indefensible," could now be defended in court — at taxpayer's expense.
Two years ago, then-Charlotte Mecklenburg police Officer Jon Dunham put his gun to the head of an unarmed suspect and threatened to kill him if he did not allow himself to be handcuffed.
Dunham also could be seen on a police video tasing James Yarborough while he and other officers were piled on top of him.
In his new legal complaint against Dunham and the city of Charlotte, Yarborough alleges that the officer assaulted him while violating his constitutional protections against unlawful search and seizure.
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The lawsuit, which was moved to federal court this week, also accuses Dunham of filing trumped-up criminal charges and a fraudulent incident report to justify his actions.
All the charges against Yarborough were dropped. Dunham left CMPD shortly after the incident.
Dunham's tactics during Yarborough's capture "constituted an unlawful assault that put (Yarborough) in fear of imminent death or serious injury," the lawsuit says.
"Dunham acted out of malice and with intentional and willful and wanton disregard of (Yarborough's) rights and beyond the scope of his lawful authority."
Police attorney Mark Newbold, who is representing the city, and Lori Keeton, who is Dunham's lawyer, said in a joint statement that they have received the complaint and will be responding soon.
Based on its handling of recent lawsuits against police, the city appears less inclined to settle the cases and more likely to take them before a jury. The Yarborough case presents several challenges to that strategy.
▪ After WBTV, and then the Observer, ran police video of the arrest, Charlotte-Mecklenburg police Chief Kerr Putney defended most of Dunham's actions. But he said the officer's threat to kill Yarborough after placing a gun to Yarborough's head violated department protocol and escalated a tense situation.
"I'm not going to defend the indefensible," Putney said.
▪ A year after first exonerating Dunham, CMPD took up the case again and found that Dunham had engaged in conduct "unbecoming of an officer."
▪ In September — and for the first time in its 20-year history — the city's Citizens Review Board ruled against CMPD on its handling of a complaint against officers. On a 7-1 vote, the board found that Putney "had clearly erred" by not disciplining Dunham.
Dunham, now a corporal for Davidson police, did not respond to an Observer email Thursday seeking comment for this story.
According to the complaint, which was filed by Charlotte attorney Luke Largess, the events of March 26, 2016, began unfolding when Yarborough's truck ran out of gas on West Fifth Street.
At a nearby gas station, the lawsuit says, Yarborough ran into a man he had met in prison who offered him a ride to his truck. According to court records, Yarborough has been convicted of several weapons violations.
Unknown to Yarborough at the time, police had the car under surveillance, the lawsuit says. During the short ride, the unidentified man gave Yarborough a handgun wrapped in a towel and asked if he wanted to buy it. Yarborough declined, the lawsuit says.
As the two arrived at the truck, police cars and officers with drawn weapons boxed them in, the lawsuit says.
Free of any charges or probation for the first time in years and now fearful of being arrested on a weapon's charge, Yarborough fled the truck and ran up Summit Avenue, weaving in and out of backyards with police in pursuit, the lawsuit says.
The chase ended on Cemetery Street. Several officers, Dunham among them, tackled Yarborough and began punching him, demanding that the suspect allow himself to be handcuffed, the lawsuit says.
Yarborough pleaded with the officers piled on top of him to ease off, the lawsuit says. Instead, Dunham put his service revolver to Yarborough's left temple.
"I will kill you, you understand? Give me your hand now," the officer can be heard saying on the video.
After putting his gun away, Dunham later drew his Taser and shocked Yarborough in his back. The lawsuit also says Dunham "deliberately and maliciously" elbowed Yarborough in the head before another officer told Dunham to get off of the suspect so he could be handcuffed.
Later in his report of the incident, Dunham "dishonestly" claimed that he drew his gun because Yarborough was reaching for his waistband — "a claim refuted by the camera video footage," the lawsuit says.
Yarborough is asking for punitive and compensatory damages along with a jury trial.
Since his departure from CMPD, Dunham has been promoted once by Davidson police.
Previously, in 20, he was shot in his own bed by an armed intruder.
The legal battle over police tactics provides a reunion of sorts for the three lawyers. In April, a jury awarded the family of Spencer Mims $100,000 in damages after the Charlotte man was fatally shot on his porch by a CMPD officer during a 2013 mental health crisis.
Largess represented the Mims family while Newbold and Keeton, a private attorney who frequently is hired by the city to defend police accused of wrongdoing, handled the defense of the city and the officer, respectively.
Researcher Maria David contributed.