County cop hit again

Judge spanks deputy in excessive force case

LAW ENFORCEMENT | Bruce Rushton

A Sangamon County sheriff’s deputy with a history of running afoul of judges is again in trouble in a courtroom.

This time, Deputy Travis Koester is in the crosshairs of U.S. District Court Judge Sue Myerscough, who has signaled strongly that she will find that he needlessly tased and arrested a woman who posed no threat and had done nothing but question the deputy’s right to search her purse. And the judge’s findings could prove expensive for both taxpayers and Koester, who could be hit with punitive damages that he, not the county, would have to pay.

In a Feb. 28 opinion, Myerscough wrote that a video of the incident speaks for itself: Plaintiff Tamara Skube was the victim of a cop who ignored both the law and common sense.

“The factual questions at issue in these claims appear to be resolved by the video,” Myerscough wrote. “There are…no factual questions for a jury to resolve here; the court is simply making a legal determination that, given the state of the law in July 2011, no reasonable officer would have believed that he had probable cause to arrest Skube for resisting arrest.”

Skube was a passenger in a vehicle that Koester stopped on July 21, 2011. After arresting the driver on suspicion of driving under the influence, the deputy started rummaging through Skube’s purse, which she had left on the passenger seat after getting out of the vehicle. Skube objected, both in court and while alongside the road while the incident unfolded. Koester, she says, should not have searched her purse because the deputy knew that it didn’t belong to the driver who had been arrested.

“As a matter of common sense, the court agrees,” Myerscough wrote. “The purple Coach purse sitting on Skube’s seat quite clearly belonged to Skube, not Flagg (the driver). It would have been logical for Deputy Koester to ask Skube to take her purse, rather than inventorying it with Skube standing a few feet away from him.”

Regardless of common sense, the judge found that Koester had a right to search the purse under the law and department policy. But what happened next didn’t pass any kind of smell test, the judge found.

Alarmed that the deputy was searching her purse when she had done nothing wrong, Skube approached Koester and objected.

“Hey, you have no right,” Skube said. “Back up now or you’re under arrest,” Koester shot back.

When Skube didn’t stop protesting, Koester warned her again.

“(I)f you don’t do what I tell you right now, you’re going to be tased,” the deputy said.

Skube objected again, and Koester told her that she was under arrest.

“How am I under arrest?” Skube asked while holding her arms out in what the judge described as “a questioning gesture.”

Just six seconds elapsed from the time Koester told Skube that she was under arrest until he zapped her, twice, with 50,000 volts. He booked her for resisting arrest, but prosecutors filed no charges, and Myerscough in her opinion last week wrote that the law has long been clear: It isn’t illegal to argue with an officer for a short period of time, and not immediately complying with a cop’s order doesn’t constitute resisting arrest. DUI charges were also dismissed against the driver, who pleaded guilty to reckless driving.

Myerscough rejected Koester’s assertion in a sworn deposition that he felt that Skube posed a threat. That notion, Myerscough wrote, was “inconsistent” with other statements Koester made in his deposition as well as the video evidence. Citing the video, the judge also rejected the deputy’s sworn statement that Skube had gone into a fight stance at some point. Myerscough also quoted from a case in which an appellate court ruled that trial courts should not consider testimony that is “so utterly discredited by the record that no reasonable jury could have believed it.”

“The only movements Skube made were to gesture with her hands when she was objecting to Deputy Koester’s search and, after Deputy Koester told her she was under arrest, to take one step backwards and bend her arms out at her elbows, with her palms facing out in a questioning gesture,” Myerscough wrote.

It wasn’t the first time that Koester’s credibility has been questioned.

In 2010, Koester lied on the witness stand, testifying in a court hearing that his investigation into a suspected drug dealer began with a tip from Crimestoppers (“Pants on fire,” Aug. 15, 2013). In fact, Koester had been tipped off by someone he had pulled over in a traffic stop, and the case against the suspected dealer was dismissed. Koester, who is the son of sheriff’s Lt. Jeff Berkler, received a reprimand after admitting the fib.

In 2012, Sangamon County Circuit Court Judge John Madonia, then an associate judge, called Koester’s testimony in a DUI case “convolutedly crappy.” Among other things, a video showed that the accused driver’s speech wasn’t slurred, as Koester had claimed in his report (“Shocking development,” Aug. 2, 2012). Koester had also testified that the driver smelled of marijuana and alcohol, but another officer testified that there were no such odors.

“I’d have a little trouble finding anyone guilty of anything coming out of this stuff,” Madonia said from the bench in blasting Koester’s testimony.

In another DUI case that same year, Sangamon County Associate Judge Christopher Perrin canceled a license suspension for an accused driver after reviewing a video that showed the man performing a sobriety test. Koester testified that the driver had failed the tests, but Perrin concluded otherwise. The videotape also showed that the deputy had not observed the driver for 20 minutes prior to administering a breath test, as required to ensure accurate results.

“I’ve seen those tests on tape hundreds of times,” Perrin said. “Moreover, what he’s testifying to and what he’s writing in his report are two different things and it leads me to believe that the guy is making it up as he goes along.”

Charges against both drivers were dropped, and both sued the county and Koester. The lawsuits were dismissed. A third lawsuit filed by a man who alleges that Koester and another deputy wrongly tased him in 2009 is set for trial on Monday. A fourth excessive-force lawsuit against Koester was dismissed in 2011 when the plaintiff, who was acting as his own attorney, failed to show up for a hearing. The county has spent nearly $197,000 on lawyers and legal fees to defend lawsuits against Koester.

In the Skube case, plaintiff’s attorneys say that Koester tased people at least 34 times between 2005, when he became a deputy, and 2012, when Skube sued. At least a dozen times, Koester used a Taser because someone didn’t obey his commands, according to Skube’s lawyers.

In her Feb. 28 opinion, Myerscough wrote that she might invoke a rarely used federal court rule to decide that Koester used excessive force and falsely arrested Skube. Normally, it would be up to a jury, not a judge, to decide those questions. If Myerscough follows through, a jury would be tasked with deciding how much Skube should be paid. Both the county and Koester could end up paying, given that a jury would be allowed to award punitive damages, which are intended to punish defendants and deter future misconduct. And Koester, not taxpayers, would have to pay punitive damages.

But the case might not get to a jury.

Myerscough has ordered the parties to a March 13 settlement conference in hopes of resolving the case.

Former sheriff Neil Williamson and his top aide, Jack Campbell, who lost the primary election for sheriff to Sheriff Wes Barr last year, consistently defended Koester’s conduct as lawsuits piled up.

Contact Bruce Rushton at [email protected].

Go to www.illinoistimes.com to see Myerscough’s opinion and a video of Koester tasing Skube.