by MELISSA PERNER
The Ozona Stockman

 A federal judge has denied the motion to dismiss in a federal civil lawsuit involving the Crockett County Sheriff’s Office.

U.S. District Judge Sam Cummings issued the order on Friday, March 5. The order states that since plaintiffs Charla Marley and Michael Hill filed an amended complaint on March 1, then their original complaint filed on Jan. 28 is no longer the live pleading.

According to the order, the plaintiffs had 21 days of the motion to dismiss to file an amended complaint. The motion to dismiss pertained to the original complaint.

The motion to dismiss was argued that the lawsuit should be dismissed for reasons of qualified immunity. Qualified immunity shields government officials from liability for the violation of an individual's federal constitutional rights.

Cummings also issued an order that any motion to dismiss or motion for summary judgment relating to the issue of qualified immunity should be filed within 45 days of the March 5 order.

Marley and Hill are suing Crockett County and the sheriff’s office for wrongful death related to the death of Marley’s husband Jess Marley.

Robert S. Hogan, Melvin Gray and Guy D. Choate, attorneys for Marley and Hill, filed a response to the March 1 motion to dismiss requesting the motion be denied and demanding a jury trial.

These new documents were filed March 2 and come after an answer to the lawsuit and motion to dismiss was file on behalf of Crockett County and the sheriff’s department, responding to the original lawsuit filed by Marley and Hill on Feb. 10.

The suit is also listed as a civil rights and wrongful death action resulting from the assault of the Marleys and Hill by deputies Joseph Bertolino and Daniel Arrieta and the false arrest and retaliation against Hill by Deputy Bo Semmler and Sheriff Roy Glenn Sutton.

Also in new documents, it claims that Charla Marley has suffered emotional trauma, mental anguish, expenses for the funeral and burial of her husband and violation of her constitutional rights. It also claims that Hill suffered violation to his constitutional rights.

The amended complaint also lists exemplary damages and punitive damages, as well as requesting the court to render injunctive relief prohibiting Sutton from further acting obstruct and impeding justice and placing the sheriff’s office under federal supervision.

No dollar amounts were listed, as the documents stated that was to be proved at trial.

Crockett County and the sheriff’s office are claiming that Jess Marley died due to pre-existing medical and health conditions that were not immediately caused by any of the events made in the lawsuit. They also claim that Semmler, Bertolino and Arrieta were acting in their official capacity and in the course and scope of their duties as deputies, and that Sutton was acting in his official capacity as sheriff.

An amended answer was also filed March 5 by Jackson Walker Attorney Jon Mark Hogg, of San Angelo, who will be representing Crockett County and the sheriff’s office.

This new document denies the allegations against the deputies and sheriff. It also states that the deputies and sheriff have not implemented, adopted or executed an unconstitutional custom, policy or practice and that there has been no violation of the Marley’s or Hill’s constitutional rights.

In the amended lawsuit, it states that Jess Marley died as a result of the unlawful use of force against him when he was “unnecessarily pepper-sprayed at extremely close range” while his wife looked on, even though he was not resisting the law enforcement officers or attempting to flee.

Jess Marley was arrested at his residence on 1106 Avenue B, and that Jess Marley fired a .22 rifle “ratshot” in the alley behind 1106 Avenue B.

Claiming that Ozona is a small, ranching community without any ordinance prohibiting the discharge of a firearm on private property, and that there is no state law prohibiting the discharge of a firearm on private property, Jess Marley firing a rifle on his property does not, “by a long shot,” arise to the level of the criminal offense of deadly conduct in Texas, the document states.

Jess Marley was attempting to hit a stray cat in the alley way and missed. The document also states that no probable cause or warrant existed to arrest Jess Marley.

The use of force against Jess Marley was “excessive and unlawful” due to the fact that Jess Marley  was not a danger to himself or others, did not threaten the officers in any way, and was standing on his front porch without a weapon, the documents state.

Under Texas law, a police officer is justified in using force only when an officer reasonably believes it is immediately necessary to protect himself from serious bodily injury or the use or attempted use of force against him, or to overcome a person’s resistance arrest, the document states.

“There was no need whatsoever for Deputies Bertolino or Arrieta to have used pepper spray against Jess Marley under the circumstances that they found themselves in on June 21, 2009, and the amount and type of force that they used was unreasonable, and resulted in the injury and subsequent death of Jess Marley,” the document stated.

It also states that Bertolino and Arrieta pointed a full automatic M-16 at Hill and pointed a handgun at Charla Marley’s head, ordered them to get on the ground and then placed them in handcuffs. 

“It is difficult to imagine how any reasonable person under these circumstances would have considered themselves to be anything but restrained, or thought in any way that they were free to leave,” the documents state.

On the arrest of Hill, it states that Semmler and Sutton “was harassed and unlawfully arrested” for driving while intoxicated. It also states that Semmler and Sutton “unlawfully harassed and conspired to harass” Hill and Charla Marley after learning of their intention to bring legal action arising out of the June 21 incident.

Hill claims that he was not drinking and that Semmler and Sutton found a beer can on the side of the road and claimed that Hill drank it.

Documents state that Hill was not acting in any manner which would lead any reasonable officer to conclude that he was intoxicated.

Hill claims that Semmler and Sutton targeted him after Semmler overheard Hill saying that Charla Marley held the sheriff’s office and Crockett County liable for her husband’s death.

“Knowing that Mike Hill would be a principal eyewitness to this matter, the sheriff and his deputies set forth on an intentional course of conduct to arrest Mike Hill on fabricated charges, in an effort to discredit him and to exhibit their authority, for intimidation purposes,” the document states. “The activities of the individuals violated the well-settled rights of Jess Marley, Charla Marley and Michael Wayne Hill under the Fourth, Fifth and Fourteenth Amendments of the United States Constitution, and every reasonable law enforcement official would have been aware that the actions committed were in violation of these rights.”

 The suit also states that Sutton has failed or refused to obtain a license as a law enforcement officer by the Texas Commission on Law Enforcement Standards (TCLOSE).             

According to public information officials at TCLOSE, Sutton has taken the peace officer license test once on Nov. 30, 2009, which he failed. Sutton has two more opportunities to take the test this year.

The Texas Local Government Code states that TCLOSE may require each county sheriff, who is not a commissioned peace officer, to attend not more than 40 hours of instruction in law enforcement. The commission shall allow a sheriff at least two but not more than four years after the date on which the sheriff assumes office to complete the hours of instruction.

If a sheriff fails to complete these requirements, then he may be removed from office under “incompetency.”

The suit also states that Sutton has heavily armed the sheriff’s department forming a large SWAT Team and has prohibited the deputies from cooperating with the Texas Department of Public Safety, the Texas Rangers, the Crockett County Attorney’s Office and the Crockett County District Attorney.

The suit also states that Sutton “has taken a tyrannical and rakehell approach to the position of Sheriff, abusing his authority,” and that “Sutton’s actions, if unrestrained, constitute a clear and present danger to each and every one” of the citizens of Crockett County.