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
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.