Suicidal soldier was wrongly arrested, lawsuit says
By PAUL WOOLVERTON | Gaston Gazette, Gastonia, N.C. | Published: July 18, 2020
FAYETTEVILLE, N.C. (Tribune News Service) — A former Army sergeant alleges in a lawsuit that he was stuck in jail for almost three years for crimes he did not commit due to malicious prosecution by the Fayetteville Police Department and because of incompetence on the part of two lawyers in the Cumberland County Public Defender's Office.
The man's lawyer said he should get nearly $7.7 million — $300 for each hour he was jailed.
The plaintiff is 33-year-old Gerard Atkinson of Fayetteville. Atkinson was charged in January 2017 with attempted murder and assault with a firearm on three Fayetteville police officers who were sent to check on him after he called a suicide hotline.
The police arrested Atkinson, the lawsuit states, because during Atkinson's suicidal crisis that night his gun discharged and the bullet went through a window toward the street at the same time as the officers were in the vicinity and walking to his house.
No one was injured.
Atkinson said in an interview this month that the gunshot was unintentional. It happened, he said, when he put the weapon down after deciding not to kill himself.
The attempted murder and assault charges ultimately were dropped this past December with Atkinson's guilty plea to two misdemeanors charges: Discharging a firearm in the city limits and resisting a public officer.
His sentence was 30 days in jail. Atkinson was released immediately because he had already been locked up for 1,065 days.
Atkinson said he should have been freed much sooner, and he believes without a criminal conviction. But his first lawyer saw him only twice in his first 28 months in jail, he said, and he never saw his second lawyer.
Atkinson's third lawyer got him out of jail within 30 days of meeting him, he said.
Atkinson further contends in his lawsuit that a racially offensive social media post by former Cumberland County Chief Public Defender Bernard Condlin in early June indicates that Condlin, who was his second lawyer and supervised his first lawyer, should never have represented him.
Condlin resigned from office because of the social media post. He is white; Atkinson is Black.
The defendants in this lawsuit are Condlin, retired Assistant Public Defender David Smith, the North Carolina Office of Indigent Defense Services (which oversees local Public Defender offices), the city of Fayetteville, six police officers involved in his case and Police Chief Gina Hawkins.
Attempts to settle out of court failed, said lawyer Michael Porter of Fayetteville. Porter and Fayetteville lawyer Reed Noble represent Atkinson in this lawsuit.
The city offered $14,400, Porter said, and the state Attorney General Office (on behalf of Smith and Condlin) offered $15,000, Porter said.
Alleged wrongful acts
Some of the lawsuit's accusations:
- Body camera recordings show that at least two police officers that night concluded that Atkinson could not have intentionally fired his gun at them. Yet he was arrested anyway.
- Officers and Hawkins pressured District Attorney Billy West in the spring and summer of 2019 to get felony convictions on Atkinson despite evidence pointing toward Atkinson's innocence.
- The police libeled Atkinson by publishing on Facebook and in a news release that Atkinson tried to murder the officers.
- Lawyers Condlin and Smith failed to follow Atkinson's instructions for his legal defense. This includes failing to attempt to reduce Atkinson's $600,000 bail and failing to request a hearing to have the District Attorney's Office prove to a judge whether it had probable cause to prosecute Atkinson.
Response to the lawsuit
The city and state Attorney General Office declined to discuss the specifics of Atkinson's lawsuit.
A private attorney for one of the officers filed a motion to dismiss the lawsuit. The motion says the evidence shows the police had lawful reasons to charge Atkinson. The motion said this evidence includes Atkinson's guilty plea to the misdemeanor charges.
The dismissal motion further argues the officer is shielded from the lawsuit under the public officer doctrine. Police officers are shielded from liability lawsuits unless there is evidence that they were corrupt or malicious or acted outside and beyond the scope of their duties.
The portion of the case against Condlin and Smith and N.C. Indigent Defense Services has been dismissed. Porter said he and Noble plan to file new, separate litigation against them and seek $2 million in restitution.
Atkinson's time in what his lawsuit describes as "legal purgatory" started on the evening of Jan. 6, 2017, at his home in western Fayetteville. At the time, he was a sergeant in the Army stationed at Fort Bragg and his wife and children were in South Carolina, he said, staying with relatives because he had a long deployment to Afghanistan pending.
The power to the home was off due to unpaid bills, he said, and the Army had begun taking steps to kick him out of the service with a dishonorable discharge because he had been arrested and charged with driving while impaired. (The charge was later dropped.)
A dishonorable discharge would have made it hard for Atkinson to get a job and support his family, he said.
Atkinson contemplated putting his .45-caliber Ruger pistol to his chest and pulling the trigger, he said. He hoped his family would get about $500,000 in death benefits.
But Atkinson thought about his son and daughter, now 8 and 4, and changed his mind, he said.
Instead, he called a suicide prevention hotline.
The hotline staff called 911 and three police officers and an emergency medical services crew were dispatched, the suit states. Atkinson said he did not know they were coming.
Atkinson said he removed the ammunition magazine from his pistol and put the magazine and gun on an entertainment center next to the front window of the home. A round remained in the gun's chamber and it discharged out the window.
At this time, the lawsuit states, two police officers were in front of the house next door and the third was two houses down the street.
Within the hour, Porter said, officers in tactical gear were pounding on the door. Atkinson said he let them and and they arrested him.
He was charged with three counts of attempted first-degree murder, three counts of assault on a government official with a firearm, and one count of discharging a firearm in the city limits.
Assistant Public Defender David Smith was assigned to Atkinson's case a few days after Atkinson's first appearance in court, the lawsuit states.
Following Atkinson's arrest, Smith waited 10 months, until October 2017, before meeting Atkinson for the first time, Atkinson's lawsuit says. They did not meet again for another 18 months — February 2019.
There were several more meetings from April to August, and then Smith retired, the suit states.
Atkinson and his lawsuit say he wanted Smith to try to reduce his bail and to arrange a hearing in which the prosecutor would have to show a judge whether there was enough evidence of the case to proceed.
Instead, Atkinson said, Smith brought Atkinson a proposed plea bargain in which he would be convicted of assault with a deadly weapon with intent to kill, a felony, the lawsuit states.
In August Public Defender Condlin took over the case. Atkinson said he never saw Condlin.
In November, Atkinson was taken to the courthouse for a hearing in which he was scheduled to plead guilty to felony charges, the lawsuit states. He met Assistant Public Defender Cindy Black.
She had been sent to handle the plea bargain that Smith had arranged, Porter said.
Atkinson told Black his story.
"She stopped it right there. She said, 'Let me help you,'" Atkinson said.
Black arranged for Atkinson to take a polygraph examination and on whether he shot at the officers, which he said he passed. Then she arranged a new plea bargain.
On Dec. 4, the charges of assault and attempted murder were dismissed. Atkinson pleaded guilty to misdemeanors of discharging a firearm in the city limits and resisting a public officer. His 30-day sentence was credited to 35 months in jail, and he was set free.
Now, Porter said, Atkinson is in counseling, lives in transitional housing and is trying to get a job. But the news releases and reports of his arrest in 2017 have made that difficult.