Witnesses differ on whether man kicked Millvale police officer | TribLIVE.com
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Jason Cato
A federal jury found Nicole Murphy, a Millvale police officer, guilty of violating a handcuffed man's civil rights. Here, she makes her way into the federal courthouse, Downtown, on Monday, Nov. 17, 2014.

Witnesses who saw a Millvale police officer use a stun gun on a handcuffed man offered contradictory testimony in federal court Monday about whether the man kicked her, although they agreed he posed little threat.

“I felt it was unjustified. He was handcuffed. I thought I had it under control,” said Casey Bonincontro, who worked with Officer Nicole Murphy in September 2012 when they arrested Thomas Jason James Smith, then 28, on charges of public drunkenness and disorderly conduct.

Murphy, 30, of Shaler — who goes by Nichole Murphy — pleaded not guilty to violating Smith’s civil rights. Her trial began Monday before U.S. District Judge Arthur J. Schwab.

She faces up to 10 years in prison. Because the charge is a felony, a guilty verdict would end her law enforcement career — even if she avoids jail.

Murphy wrote in arrest documents and paperwork presented in court that she used a Taser on Smith to prevent him from injuring himself and because he kicked her. A medic testified that he saw a kick.

“It was to the chest or torso area during the first Tasing,” said Bart Heaney, a rescue technician with Ross/West View EMS who was at the police station during the incident. Heaney, however, wouldn’t characterize the kick as an attack.

Bonincontro said he never saw Smith kick Murphy.

“She ran into his foot while trying to Tase him,” he testified on cross-examination from defense attorney Robert Stewart.

“Is that like stopping your fist with my nose?” Stewart asked.

Assistant U.S. Attorney Carolyn Bloch said during her opening statement that Millvale police have a policy not to Tase anyone in handcuffs.

“Smith was drunken, annoying, frustrating and obnoxious. He rolled around on the floor and banged his head,” Bloch said. “He never threatened anyone, but the defendant Tased him anyway.”

The FBI began investigating when someone leaked Bonincontro’s 52-second cellphone video of the incident to media outlets in early 2013.

In his opening statement, Stewart said that Murphy “was the only police officer that night doing her job.”

Murphy and Bonincontro responded to a call of two men fighting in the street and found a shirtless Smith and another man near Mr. Smalls Theatre in Millvale. Smith said they were practicing mixed-martial arts but fled when officers called medics. Bonincontro caught Smith after a brief foot chase.

According to court documents, the officers placed Smith in a holding cell but removed him soon after because he was banging his head into a concrete-block wall. Bonincontro put him in the middle of the station’s squad room, where they were working. Smith’s hands were cuffed behind his back the entire time.

Bonincontro said he wanted to take Smith to Western Psychiatric Institute and Clinic but that Murphy insisted on taking him to the Allegheny County Jail.

Bloch said Murphy told investigators that she Tased Smith at least three times to keep him from harming himself and that he tried to kick her.

Bonincontro’s video caught the first Tasing. Murphy didn’t deploy the prongs on the Taser the first two times but did the last time, Bloch said. He then stopped banging his head, and the officers took him to jail.

Stewart said Bonincontro didn’t shoot the video of Smith banging his head against a desk to show doctors at Western Psych in Oakland, as he claimed.

“He’s filming this to show his buddies at the bar,” Stewart said, adding that Bonincontro sat in a chair, laughing, “enjoying the show.” Millvale police suspended Bonincontro for one day for his role in the incident. He is no longer with the department.

Murphy’s trial continues Tuesday.

Millvale paid Smith $37,500 to settle a civil lawsuit. The borough suspended Murphy without pay pending the outcome of the criminal case.

Jason Cato is a staff writer for Trib Total Media. He can be reached at 412-320-7936 or [email protected].

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