In the civil case against the Town of Kremmling, Robert “Mark” Smith was awarded $760,000 yesterday in federal court at the Byron White United States Courthouse in Denver with Senior District Judge Richard P. Matsch presiding.
The official judgment states, “Pursuant to the jury verdict, plaintiff Robert Mark Smith will have and recover damages in the amount of $350,250 from defendants Todd Willson, Scott Spade, and Town of Kremmling, Colorado jointly and severally, punitive damages in the amount of $254,170 from defendant Todd Willson, and punitive damages in the amount of $175,170 from defendant Scott Spade.” In addition, all of Smith’s fees for legal counsel, estimated to be over $100,000, will also be paid be the defendants. The Town of Kremmling does have insurance, and the Town could decide to pay the punitive damages owed by Sergeant Willson and Chief Spade. According to Smith’s attorney, Darold Killmer, it is a common practice for municipalities to cover the costs. The Town could also decide to appeal the case, and the defense is expected to file a Rule 50B which would provide a new trial and could nullify the jury’s verdict if approved. A Rule 50A motion was filed by the defense after evidence closed, but was denied by Judge Matsch. The Town of Kremmling is represented by Josh A. Marks of Berg, Hill, Greenleaf and Ruscitti, LLP. The Town of Kremmling board will have an executive session at their regularly scheduled meeting next Wednesday to discuss the matter.
The lawsuit named the Town of Kremmling, Sergeant Willson, Chief Spade, and Officer Robert Dillon as defendants. The 12 jurors came to their decision after nearly eight hours of deliberation and reviewing a week’s worth of testimony and evidence. They decided Smith’s 4th Amendment rights had been violated through the use of excessive force by Sergeant Todd Willson and Chief of Police Scott Spade of the Kremmling Police Department (KPD) on the night of March 5, 2013. Chief Spade was not present at the incident on March 5, 2013, but was a defendant based on his individual and official capacities. He has served as Chief of Police since 2004. According to Attorney Killmer, juries often hold command staff more accountable.
The jury upheld the actions of Kremmling Police Officer Robert “Bob” Dillon and dismissed all charges against him. In the civil case, Smith had charged that his 1st Amendment rights had been violated by Officer Dillon acting in retaliation of his protests of the Town’s codes, and that Officer Dillon, Sergeant Willson and Chief Spade had violated his 4th Amendment rights with the use of unnecessary force when completing a welfare check.
Much of the trial surrounded the incident of the welfare check orchestrated by Officer Dillon. On the evening of March 5, 2013, Officer Dillon received a dispatch call for a possible domestic disturbance involving a woman and a person named Mark, who owned a trailer park and drove a Jeep Cherokee. Longmont resident, Donna Snyman contacted dispatch after receiving a call from her distraught and emotional friend who said she was hurt by her boyfriend. She was afraid to ask her boyfriend to take her to the hospital because he would be mad and couldn’t contact police because she didn’t know the address. She abruptly ended the call by saying, “he is coming.” Alarmed, Snyman reached out to authorities with the information she had. She was then contacted by Officer Dillon who was able to determine that it was highly probable her friend, a possible victim of domestic violence, was staying with Robert “Mark” Smith.
The KPD had an extensive history with Smith involving issues of noncompliance with Town codes for water meters. Smith asserts the codes were unfair to his mobile home park, the Eagles Nest Trailer Park along Highway 40, and he was being singled out for enforcement as soon as he purchased the mobile home park in 1997. In 2008-2009, tensions escalated with Town Trustees and resulted in harassment charges and Officer Dillon who had the best rapport with Smith at that time made the arrest without incident, but Smith commented that if it had been Spade or Willson he would have shot them. The KPD officers did have knowledge of Smith’s gun collection and that he kept at least one gun by the front door.
From these interactions Officer Dillon, Sergeant Willson and Chief Spade repeatedly reported that Smith had developed a pattern of unpleasant interactions with KPD officers involving “flipping them the bird,” spitting on the ground when they were near, lunging at them with fists clenched, using profanity, accusing them of selling out, and even issuing threats that he would shoot them. From this history, Officer Dillon felt back-up was needed and contacted Sergeant Willson, who was off-duty, and the Grand County Sheriff’s office. From this request, Colorado State Trooper Nathan Lyons responded as a courtesy, and Sergeant Dan Mayer and Officers Zachary Luchs and Mike Reed of the Grand County Sheriff’s Office also responded. Of the three responding from the Sheriff’s office, only Sergeant Mayer is still employed with the county. During this time, Smith’s lawyers also argued that Officer Dillon could have asked Sergeant Mayer to take the call to avoid conflict. This strategy had been used to avoid conflict with Smith in other incidences successfully. The prosecution also argued that a simple “knock and talk” would have been appropriate for a welfare check as this was originally deemed. The prosecution portrayed Smith as, “All bark and no bite” and that he would not act on his threats – they were part of his protected 1st Amendment rights as protest. It is interesting to note that the Grand County Sheriff Deputies were originally named in the civil case, but were eventually dropped. During the testimonies of the law officials, most of their recall of the incidences was similar with few variations. It was recalled that Officer Dillon met with the others at the Car Wash in close proximity to Smith’s house and apprised them that Smith may be “unfriendly towards law enforcement” and that he did have guns. Officer Dillon states he made a call to Chief Spade who was at home sick. Chief Spade approved of the plan. As the officers were congregating at the car wash, they made a loose plan to approach the home from different vantage points. Officer Dillon took the lead and approached the door. Smith reports he had been taking a shower and answered the door in his underwear. Officer Dillon asked if the alleged victim was there and reports Smith admitted she was and that she was asleep. Smith reportedly became combative using expletives for the officers to get off his property and asking if they had a warrant. Smith maintains that he did resist arrest, but did ask them to get off his property. Officer Dillon testified that he blocked punches from Smith and continued to move forward as Smith tried to shut the screen door on him. Sergeant Willson, Sergeant Mayer and Deputy Luchs followed into the home as did Trooper Lyons. When Trooper Lyons entered the home, he stated seeing an altercation with three of four individuals.
In one the most disputed points in the case, Sergeant Willson admits he tasered Smith, but says the taser did not deploy correctly. The other officers heard the sound and electricity of the popping that confirmed it didn’t fire correctly. Smith says he was tasered at least three times. Around this time, Deputy Luchs says he took Smith to the ground using a “common peroneal knee strike” which caused him to fall to the floor. Luchs restrained his head and torso while Sergeant Mayer restrained his legs. Smith was laying face down in order to cuff him. Officers were yelling – “Quit resisting. Stop,” to Smith. At one point, Mayer asked Willson if they wanted him cuffed and Willson responded, “Yes,” and helped handcuff him. Mayer then states that once Smith knew they were with the Sheriff ‘s office he quit fighting, and said, “I don’t have a problem with you.”
Trooper Lyons reported he approached the alleged victim and found her asleep. Upon wakening her he witnessed bruises on her arms and found her to be confused at the circumstances and inebriated. Trooper Lyons said she did not admit to Smith hurting her, but felt she still needed an ambulance because of her current state and stepped out of the house to call paramedics. Officer Dillon testified he already had EMS on standby before reporting to the scene. Officer Dillon then approached the victim and believed himself to be the first one to approach her and reported that she was sitting up and alert. He states that he also observed bruising and that she did admit to Smith hurting her. Trooper Lyons said her admitting to being assaulted was surprising and wondered if Officer Dillon influenced her, especially in her inebriated state. Her alcohol blood content level measured over 0.4.
Later, the alleged victim also said she was confused and felt that she was coerced to say Smith had hurt her. However, her medical records obtained from Middle Park Medical Center also had notes of her admitted assault as did a voicemail message to the Assistant District Attorney at that time, Ashley Shelton, “He never hit me – he just drug me by my hair…” The alleged victim also states that she was confused because she and Smith did have a fight two days earlier and had “fallen down” his front steps together, but they had not fought on March 5. She refused to testify against Smith saying she was never hurt by him, and all charges against Smith were dropped by the District Attorney’s office.
After Smith was transported to the jail in Hot Sulphur Springs, it was reported by Lieutenant Kyndra Gore that Smith did not report any injuries. Sergeant Mayer followed up with Smith’s medical history of strokes and an ambulance was offered, but Smith declined reporting no injuries. Smith sought medical attention after his release from jail and Dr. Mark Norden, an internal medicine physician in Frisco, testified that Smith had chest trauma, facial trauma and dysuria (difficulty urinating) after the altercation. Smith was also diagnosed with Costochondritis an inflammation of the junctions where the upper ribs join the cartilage. Smith states while being under arrest he was struck and kick by officers.
After the incident, Smith filed his civil case in 2015 and is represented by Darold Killmer and Michael Fairhurst of Killmer, Lane & Newman, LLP. As a highly decorated, Vietnam veteran, Smith’s PTSD was also documented, and documented in his psychiatric records is a preoccupation with justice and his ill-treatment at the hands of the Town of and Kremmling and its employees. He compares his dispute with the Town and fighting for his Constitutional Rights as a battle. After the jury announced their verdict, he stated that he did have some closure after Town Manager Don Van Wormer begin the fight nearly two decades ago.
Mark Smith is scheduled for another jury trial in District Court at the end of the month for a felony menacing charge.