Of­fi­cer’s punches as­sault — or part of the job?

That’s the ques­tion fac­ing the judge in the case of Hamil­ton’s Const. Kudo Park

The Hamilton Spectator - - LOCAL - NI­COLE O’REILLY nor­eilly@thes­pec.com 905-526-3199 | @Ni­coleatTheSpec

Is a po­lice of­fi­cer le­gally jus­ti­fied in punch­ing a hand­cuffed man?

That is what On­tario Court Jus­tice Robert Gee has to de­cide in the case of Hamil­ton con­sta­ble Kudo Park, charged with as­sault­ing a man dur­ing a dif­fi­cult ar­rest al­most two years ago.

The en­counter left Thomas Schon­berger with frac­tured fa­cial bones, and Park seek­ing med­i­cal care af­ter in­gest­ing Schon­berger’s spit.

In its clos­ing ar­gu­ments in a Hamil­ton court­room Fri­day, the de­fence ar­gued Park was “just do­ing his job,” while the pros­e­cu­tion called the punches “pay­back” for spit­ting in Park’s face.

That spit, which both sides agreed was dis­gust­ing and de­spi­ca­ble, was as­sault.

Schon­berger pre­vi­ously pleaded guilty to as­sault­ing Park and to threat­en­ing an­other of­fi­cer at the scene. He was handed a 120-day sen­tence.

On the sur­face, the de­tails of what hap­pened, in a mat­ter of sec­onds on the night of April 17, 2015, are largely agreed on by the two sides.

Park, re­spond­ing to a call for a man walk­ing down King Street East, swing­ing a knife and walk­ing a dog, came upon the scene and found Schon­berger al­ready in hand­cuffs.

He ap­proached and asked Schon­berger his name, try­ing to dis­tract the then 35-year-old from an on­go­ing search.

Then, ac­cord­ing to Park and other of­fi­cers, with­out warn­ing or provocation, Schon­berger spat in Park’s face — al­co­hol-tast­ing spit landing in his mouth and eyes. Park says he then quickly punched Schon­berger in the mouth to stop the spit­ting.

Two other of­fi­cers took Schon­berger — de­scribed as com­pletely of control — to the ground. He was kick­ing, flail­ing and still spit­ting.

With the two of­fi­cers strug­gling to gain control, Park tes­ti­fied, he hit Schon­berger with “two quick jabs” aimed at the mouth to stop him from spit­ting more.

Crown pros­e­cu­tor Roger Shal­low said it was these sec­ond and third jabs that he found went too far. “His ac­tions were ab­so­lutely un­nec­es­sary and ex­ces­sive.”

Shal­low also noted it’s “a se­ri­ous mat­ter of pub­lic con­cern,” when a po­lice of­fi­cer “over­steps (his) fairly gen­er­ous bounds.”

De­fence lawyer Gary Clew­ley called the case “straight­for­ward,” ex­plain­ing Park made a split-sec­ond de­ci­sion to try to control the sit­u­a­tion.

“The ev­i­dence is over­whelm­ing that of­fi­cer Park was do­ing his job.”

Court also heard Fri­day from Paul Bonner, a trainer at the On­tario Po­lice Col­lege, who told the court that punch­ing to stop an as­sault or to dis­tract some­one dur­ing an ar­rest is within train­ing.

“We don’t tell (po­lice) you will al­ways do this, you won’t do that,” Bonner said, ex­plain­ing that the level of force nec­es­sary de­pends on the sit­u­a­tion and the per­cep­tion of the of­fi­cer.

Schon­berger, who was in­tox­i­cated at the time of the in­ci­dent, has a his­tory of schizophre­nia, sub­stance abuse and trou­ble with the law.

He was not present in court this week, as he is in cus­tody fac­ing charges on an un­re­lated as­sault.

Schon­berger tes­ti­fied ear­lier in the trial that he was “decked” out of nowhere, taken to the ground and hit a cou­ple more times, with the last punch hurt­ing the most.

His tes­ti­mony was at times con­tra­dic­tory, with the de­fence call­ing it un­re­li­able.

The pros­e­cu­tion con­tended Schon­berger’s ev­i­dence should “not be re­lied upon with­out scru­tiny.”

Park will have to wait un­til April 26 to learn his fate, when the case re­turns to court for a ver­dict.

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