Man who sued Williamson County Sheriff Robert Chody for excessive force in 1998 speaks

Investigations

AUSTIN (KXAN) — Marcus DeWayne Frank said he had no warning before a police officer grabbed him, put him in a full nelson and slammed him against the hood of a police cruiser in East Austin in 1998.

Frank, a black 15-year-old sophomore at Johnston High School at the time, was walking home from a neighbor’s house. APD was called to the area because of a disturbance between a man and woman in the street near where Frank was walking, but Frank wasn’t the suspect.

“I just remember being grabbed from behind and being put into a full nelson. Nobody ever said who they were,” Frank told KXAN in an interview. “He never introduced himself or anything, never even attempted to ask any questions to anyone. All of the neighbors are telling him you have the wrong person.”

Frank and his mother near the time of the incident with Chody in 1998. (Photo courtesy of Marcus DeWayne Frank)

Frank and his mother would sue the officer, and another officer that provided backup, in federal court for excessive force and several other alleged violations.

Frank didn’t know it at the time, but that APD officer, Robert Chody, would go on to elected office, becoming a constable and later Williamson County Sheriff — a position he still holds.

Fast forward to the present: Chody’s leadership as sheriff has come under fire for allowing reality television program “Live PD” to film deputies making arrests, including a 2019 pursuit that ended with the death of 40-year-old Javier Ambler.

Though his Austin arrest happened over 20 years ago, Frank said he has felt compelled to speak about that 1998 incident after learning of Ambler’s death, as well as seeing the nationwide protests that followed the death of George Floyd in police custody in Minneapolis, Minnesota. Floyd, a 46-year-old black man, died after an officer kneeled on his neck for nearly nine minutes during an arrest.

“It brought up anger. It brought up fear. It brought up sadness, and then it gave me a sense of responsibility that I need to share my story,” Frank said. “People out there need to hear what I went through because it’s more than just me out there.”

Frank sued Chody in 2000 for false arrest, malicious prosecution, unreasonable search and seizure, and excessive force, according to a court order.

Frank’s mother, Choyce Perkins, was a plaintiff in the case as well. She alleged a second responding officer used excessive force when he struck her across the thigh with a flashlight and knocked her to the ground as she stood watching her son’s arrest unfold.

In court records, and in an interview with KXAN on Friday, Chody defended his conduct in Frank’s arrest. Chody said he conducted himself to the best of his abilities at the time, and he was only a year or two out of the training academy.

“Certainly, nobody likes to use any type of force,” Chody said in the interview. “The force I did use was reasonable force. I did not strike him. All my measures were just to try to keep him detained because I thought he was a suspect in an assault.”

‘Widely differing views

On August 30, 1998, Chody responded to a call of black man and woman fighting on Thurgood Avenue in East Austin. When Chody arrived, at about 10:40 p.m. he saw a black male and female standing in the street near the address of the call, according to court records.

As to exactly what happened that night, Frank and Chody had “widely differing views” at the time of the lawsuit, according to the order written by former federal district judge Sam Sparks, who presided over the case.

Chody said he arrived at the scene and perceived Frank to be the subject of the 911 call, according to the court order.

Chody said he asked Frank to “come here,” but Frank continued walking away and flailed around before being put in a “full nelson.” Chody said he walked Frank to his patrol car, maintaining the full nelson, and put Frank face down on the hood, according to the court order.

Frank recalled it differently.

Frank said he had no verbal warning, and Chody picked him up in the full nelson and slammed him onto his patrol car.

During a struggle, the two ended up in a nearby yard with Chody on one knee still controlling Frank. Frank’s mother, Perkins, was standing nearby and told her son to follow Chody’s orders. At that point, Frank had a seizure while still in Chody’s grasp, according to the lawsuit.

A second officer at the scene struck Perkins on the thigh with his flashlight, which knocked her to the ground. At that point, Chody told the second officer that Perkins was not a threat, the court order states.

Frank was charged with evading arrest, but that charge was dropped. The whole encounter, Frank said, left him with bruised ribs and psychological trauma.

“It caused me not to trust police officers, and I know there are good cops,” Frank said. “In my eyes, until I can see that you are a good cop I can’t trust you, it made me uncomfortable to be around police officers.”

Sparks denied Chody and the other officers’ motion for summary judgement in the case. In doing so, Sparks denied the officers’ defense of qualified immunity.

“Chody argues that even in plaintiffs’ descriptions of the facts are accurate, he is entitled to qualified immunity because the force applied was not excessive to the need and was objectively reasonable. The Court disagrees for several reasons,” Sparks noted in his order. “First of all, there is a material dispute as to whether Frank was even aware of Chody’s presence until Chody had grabbed him, and as to the force applied by Chody when he pushed Frank onto the police car.”

The lawsuit was ultimately settled outside the courtroom and dismissed.

Chody said he continued to work the streets of Austin for years following the incident, and had no other issues with use of force or lawsuits filed against him.

Now, 20 year later, Chody and his department face criticism for working with “Live P.D.” and the 2019 arrest and death of Ambler.

Javier Ambler

Ambler died in North Austin in the custody of Williamson County deputies after a 22-minute pursuit that started in Williamson County on March 28, 2019.

Ambler was initially sought by the deputies for failing to dim his headlights, and “Live P.D.” was filming during the chase. The footage from “Live P.D.” was never released to investigators, and it has since been destroyed, according to authorities.

Chody said he wants to be respectful of the Ambler family’s tragic loss, but he is also disappointed in the cancellation of the television program because it exposed a positive side of the sheriff’s office to the community.

Body camera footage from the Ambler arrest has been released, and it shows Ambler alerting the arresting officers to his heart problem and saying he couldn’t breathe.

Frank said the Ambler case reminded him of his own case in 1998.

“They did not listen. You have a man telling you that he has congestive heart failure and that he’s asking you to save him,” Frank said. “He’s asking you to save him, but they’re not listening to him. It’s the same thing with Chody, he did not listen when he was told you have the wrong person.”

Copyright 2020 Nexstar Broadcasting, Inc. All rights reserved. This material may not be published, broadcast, rewritten, or redistributed.

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