Lawsuit accuses Fort Worth, police of excessive force

A man has sued Fort Worth and seven police officers, claiming that excessive force was used against him during a traffic stop and that audio he recorded on his phone captured officers discussing how to justify his arrest.

Christopher Swen had turned on the recorder after being pulled over in September 2013 for what he suspected was yet another racially motivated traffic stop, the lawsuit says.

“When you have those kind of psychological concerns and fears, his alarm clock went off and he said, ‘Here it goes again,’” said Swen’s Dallas attorney, James Francis. “So he turned on his phone for anticipation of yet another event. As it turned out, it was all that and more.”

The suit says officer B.S. Banes threw Swen, who is black, to the ground, injuring his jaw, and arrested him even though Swen did not resist. The audio recording, the attorneys say, later captured officers discussing how to justify Banes’ actions and raised doubts about the legality of the arrest.

Tracey Knight, a police spokeswoman, said Wednesday that a mandatory use-of-force report was completed at the time of the arrest and was reviewed by the officer’s chain of command.

“No discipline was issued,” Knight said.

Knight said Swen called the internal affairs division 11 months later but never showed up for his interview or gave detectives a statement.

“Since he was uncooperative with detectives, an investigation could not be conducted,” she said.

Knight said the department was not previously made aware of the recording. She urged anyone with a complaint or alleged evidence of inappropriate conduct by a Fort Worth officer to come forward so an investigation can take place.

“We take officer misconduct very seriously, and investigations can lead to complete exoneration to additional training and all the way up to termination. But we must first know about an issue in order to address it,” Knight said.

Tarrant County court records show that Swen was booked into jail and arraigned on suspicion of interfering with public duties but was never formally charged.

Sam Jordan, a spokeswoman for the district attorney’s office, said that police submitted a case against Swen but that it was rejected for “a lack of sufficient evidence.”

The suit, filed in Tarrant County, names as defendants the city and officers B.S. Banes, P. Nabaliek, B. Jenkins, C. Fields, F. Galvan, J.W. Pledger and S.R. LaCroix.

Francis said the defendants include any officers involved in the arrest process and any who may have been present during the recorded discussions.

“Other officers knew he was lying and didn’t do anything about it,” said Robert Goodman, another of Swen’s attorneys. “It became a conspiracy of silence.”

Swen, 50, is seeking more than $200,000 but less than $1 million in damages, court records indicate.

‘Is that a problem?’

Swen, a vocational nurse at a north Fort Worth nursing home, was driving home after working a late shift on Sept. 9, 2013.

The lawsuit says Swen was traveling west on Heritage Trace Parkway when Banes pulled him over about 11:53 p.m. Swen, a native of Africa, believed he was the victim of racial profiling during previous traffic stops, so he turned on his phone’s audio recorder, the lawsuit says.

In the recording, a copy of which was provided to the Star-Telegram by Swen’s attorneys, Swen grows evasive when Banes asks whether he had ever been arrested, answering, “I don’t know.”

When the officer repeats the question and receives the same answer, he asks, “You don’t know if you’ve ever been arrested?”

“Yes, sir. Is that a problem?” Swen replies.

Swen soon accuses the officer of pulling him over because he is black, an accusation that Banes quickly denies.

“There is no way I can see that …” Banes replies.

“You saw my hand outside,” Swen interrupts. “I put my hand outside.”

The officer then asks Swen to turn off his car. Swen fiddles with his seat belt, prompting the officer to ask what he is doing and order him out of the car.

With the engine still running, Swen gets out, repeatedly telling the officer: “I did nothing wrong. Because I’m a black guy, you pulled me over.”

The officer asks Swen to put his hand on the roof. The dash-cam video shows Swen complying and the officer handcuffing his right wrist.

Swen then begins to lean into the car with his left hand.

“Let me turn my car off. Let me turn the engine off. … Let me turn …” Swen is heard saying on the audio before erupting in loud screams.

“Whatcha doing to me? Oh, Lord! My God! Whatcha doing to me? … I did nothing wrong!” Swen shouts.

‘Your camera shows everything’

The lawsuit says Swen was reaching in to turn off the ignition when Banes jerked him backward and tripped him facedown onto the pavement, injuring his jaw.

The officer can be heard soon after helping Swen to his feet.

“I’m sorry, but you’re going to jail now,” Banes tells Swen.

“OK, but I didn’t do nothing wrong. I don’t mind going to jail,” Swen replies. “I did nothing wrong. I know your camera shows everything.”

Swen complains of pain in his hand and jaw and accuses the officer of hitting him on the floor.

“Let me explain something to you, OK? When a police officer tells you to do something, you do it,” Banes calmly tells Swen.

“I don’t resist. I don’t resist you,” Swen insists.

“Oh, yes you did,” Banes counters. “You jumped back into your car.”

Francis said that besides the injured jaw, Swen suffered post-traumatic stress and had to undergo months of therapy.

‘I could see his heart pounding’

In his probable-cause affidavit, Banes, then assigned to the zero-tolerance unit, wrote that he was working a part-time job providing extra neighborhood patrol in the Heritage community when he spotted a small black car going about 10 mph over the speed limit.

A few days before, Banes said, he had received a be-on-the-lookout bulletin about burglaries that targeted a Heritage clubhouse and a nearby car. He said hazy pictures included with the bulletin showed a black male in a small black car that matched the description of the speeding car.

As Banes tried to pull the car over, the driver turned left into an exit lane at Alliance Town Center before stopping, the video shows.

Banes said Swen was agitated and began yelling at him.

“I could see his heart pounding through his shirt,” Banes wrote in his affidavit.

He described the driver’s eyes as almost bulging and his hands as shaky.

“I became suspicious that he may be the burglary suspect or that he was nervous because he was in possession of contraband,” Banes wrote. “I was unable to have much conversation with [Swen] or to explain the reason for the stop because [Swen] was yelling at me.”

Banes wrote that he suspected Swen might be high on a stimulant like cocaine, methamphetamine or prescription drugs because he pulled over on the wrong side of the median, was agitated and gave belligerent answers to simple questions.

He said he ordered Swen out of the car when he began to put on his seat belt and reach for the gearshift, leading Banes to believe that Swen was about to try to drive away.

He said Swen “quickly and aggressively stepped out of the car face to face with me.”

“I turned [Swen] around and pushed him against his car and explained to [Swen] that I was not arresting him, but that I was placing cuffs on him to safely detain him,” Banes wrote. “I placed handcuff on his right wrist and explained that I was placing handcuffs on him because of the way he was acting.”

Banes said Swen suddenly tried to get back in the driver’s seat.

“I became afraid that he was attempting to grab a weapon or possibly attempting to get back in the car to drive away,” he wrote. “I reacted by pulling him back out of the car by his right arm and performed an arm bar takedown in the street.”

‘Just one of those deals’

While Swen was taken to a hospital, his cellphone remained with police, recording conversations among Banes and other officers.

Swen’s attorneys say the recording shows inconsistencies between what Banes claimed happened during the stop and what actually took place.

The recording also captured conversations among the officers about the “best” or most appropriate charge to seek against Swen. Among those discussed are resisting detention or arrest, interference with public duties and evading arrest.

They also discuss Banes’ suspicion that Swen was under the influence.

“I don’t think this guy is on anything besides being African and crazy and not from this culture so he doesn’t understand,” one officer says.

Later, an officer, presumably speaking with another officer on the phone, can be heard talking about the case.

“He was, like, diving back into the car because he forgot to turn the engine off,” the officer says. “And he didn’t want the car overheating. Of course, he’s African. He doesn’t understand. But this ZT guy, when he threw him down, he hurt his jaw. So we’re going to arrest him because he’s hurt, quote unquote, right?”

The officer also disagrees that Swen should be arrested for interference with public duties, arguing that he should be arrested for evading arrest for diving back into his car.

“He really wasn’t, but you believed that he was trying to evade. That’s why you pulled on him,” the officer said he told Banes.

“It’s just one of those deals where, ‘Oh s---!, we’ve got nothing and we hurt the guy,’” the officer tells the person on the phone. “In the old days, we could just let him go, but now it’s like you’d better come up with something.

“But technically the officer did everything right because I’m not going to let somebody get back in the car on me,” the officer adds.

Francis said the remarks are concerning “because they suggest … that there was some ambivalence as to how legal this arrest was.”

This story was originally published July 15, 2015 at 9:12 AM with the headline "Lawsuit accuses Fort Worth, police of excessive force."