Judge Drops Charge Against Officer Who Kicked Man During Traffic Stop Gone Haywire

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A Harris County Precinct 4 deputy constable out on patrol says he saw a young man blow through a stop sign on September 10, 2011 near his far north-side home, so he pulled up behind the guy and flashed the lights when the man turned into his driveway. The man's mother walked outside, asked what was going on, and the deputy told her to get back inside the house or else he'd throw her in a squad car; she refused, arguing that she was on her property, so the deputy put her in cuffs.

The rest of the family then came out to investigate and, for some still-unclear reason, things quickly spun out of control. The deputy called for backup. The driver's father was slammed to the ground, cuffed, arrested, and later charged with assaulting a police officer. Deputies grabbed and arrested an aunt with enough force that she suffered a broken hand, according to a lawsuit that was later filed. The sister, who tried to record all of this on her cell phone, was arrested and charged with assaulting a police officer; the sister says the cop tripped during the course of her arrest, while her criminal complaint says she pulled her arm while the officer was trying to detain her "causing him to hurt his foot."

As for the man who ran the stop sign, three deputies wrestled him to the ground, and he was later charged with criminal mischief.

After nearly two years and thousands of dollars in legal fees, prosecutors had dropped all charges against David Scherz, who was 25 at the time of his arrest, and his family members who came out to see why a deputy followed him into their driveway. The family filed a lawsuit in federal court alleging police brutality, and a dash-cam video soon surfaced showing then-deputy constable Jimmy Drummond kicking and kneeing Scherz while he was already cuffed and face-down on the ground. The video was enough to prompt the Harris County District Attorney's office to rush to charge Drummond with official oppression the day before the statute of limitations was set to lapse.

But this week, Drummond got off on an apparent technicality. State District Judge Denise Collins ruled that prosecutors didn't properly charge Drummond before the time limit, effectively ending the case just as it was set to go to trial.

The Scherz family, meanwhile, hasn't had such luck over at the courthouse. Scherz's mother and father are again fighting criminal charges that prosecutors dismissed two years ago but then refiled after the family sued in federal court last year (so no statute-of-limitations problem there).

The video that captured the incident that led to all of this is, naturally, somewhat chaotic, but you can clearly make out a few things. There's a man thrown to the ground early in the video -- presumably Scherz's father, David Braxton Scherz, Sr. -- and put in handcuffs. When the younger Scherz walks out near the squad cars, deputies turn to him. Scherz quickly raises his hands and starts to back up toward the house (universal sign for "oh shit").

By then it's too late, and officers tackle Scherz to the pavement in front of the recording dash­cam. After what looks like a minor struggle, Drummond -- who can most generously be described as "husky" -- shuffles his way over to Scherz and delivers five solid kicks to the ribs. Drummond then lightly kicks a small white dog before walking back to knee­-drop an already-detained Scherz in the neck. Drummond's criminal complaint says he also wiped the bottom of his shoe on Scherz's back.

By the end of the video, no less than five police cruisers are in sight.

The family's civil attorney, Randall Kallinen, says he helped the family file the federal lawsuit shortly after prosecutors dropped the last of the charges in the case back in the summer of 2013. The civil suit essentially claims deputies grossly overreacted when Scherz's mother came out to question why a cop was questioning her son in her driveway (and then continued to overreact when more family came out to question why the mother had been put in handcuffs, and so on, and so on). Kallinen says he took the dash-cam video to prosecutors soon after filing the civil suit in late August 2013 to see if possible criminal charges were warranted against any of the deputies.

The DA's office then filed a criminal complaint, which prosecutors thought would suffice until they had time to get a grand jury to indict Drummond, which it did a few months later. Here's how the Chron's court reporter explained the judge's decision Monday:

State District Judge Denise Collins agreed with Drummond's attorney, who filed a motion two weeks ago arguing that prosecutors did not indict Drummond before the two-year statute of limitations had run out. Prosecutors filed a criminal complaint, charging Drummond with the Class A misdemeanor, a day before the time limit had expired in 2013. Drummond was indicted three months later.

Collins ruled against prosecutors who argued that the criminal complaint was sufficient to keep the case viable, or "toll" it, until a grand jury could investigate and hand down an indictment.

Jeff McShan, a spokesman with the DA's office, told us in an email, "This ruling surprised us," and said, "As we speak prosecutors are discussing this case and will likely appeal Judge Collins' ruling." Drummond is now a captain with the Montgomery County Precinct 3 Constable's office.

Courtesty

David Braxton Scherz Sr. after his altercation with Harris County Pct 4 Constables

While the DA's office pushed forward with a misdemeanor charge against Drummond, it also decided to again pursue a misdemeanor charge against Scherz's mother, Yvonne Scherz (interfering with a public servant), and a felony assaulting-an-officer charge against his father, David Braxton Scherz, Sr. (the indictment says Scherz Sr. struck a deputy with his hand). The assistant DA on the case "did believe there was probable cause to file on Deputy Jimmy Drummond and two of the family members," McShan said.

Yvonne Scherz's attorney Mike DeGeurin says her indictment in December 2013 followed what he called "an unusual" grand jury process. Here's all he would tells us in a phone call Tuesday:

"The interesting thing is they called Mr. and Ms. Scherz to the grand jury, and they were going to invoke their Fifth Amendment right, but the prosecution got an order from the judge that they must testify, but that nothing the grand jury learned in the grand jury process could be used against them. ...Now, that same grand jury that listened to their testimony then indicted them. So there's something very strange about that."

Scherz Sr.'s attorney Mark Bennett didn't respond to phone calls, but court records indicate Scherz Sr. has taken some kind of pretrial offer.

Meanwhile, the civil lawsuit that first led to criminal charges being filed, then dropped, against Drummond -- and, apparently, to charges being re-filed against Yvonne and David Scherz Sr. -- is effectively stalled.

We asked McShan at the DA's office why the family's charges were dismissed years ago, only to be re-filed when they came back with evidence that got a deputy constable indicted. Court records give no reason for those dismissals, and the orders simply state, "see memo in states (sic) file."

McShan told us to file a records request for the file if we wanted an answer. "These issues were handled by a previous administration," he wrote in an email. "I have no idea what that file says. I know that when our Civil Rights Division looked at the case in September (2013) they felt charges should be filed and followed through."