Kenosha Applebee's arrest incident likely headed for lawsuit, but first the mayor can intervene

Now that charges have been dropped against Shanya Boyd and Jermelle English, the mistaken identity arrest at a Kenosha Applebee's is likely headed for a lawsuit, but first the attorney for the Illinois man and woman would like to extend an offer to the mayor of Kenosha.

Kevin O'Connor, the attorney representing Boyd and English, said the Kenosha Police Department violated his clients' constitutional rights and Mayor John Antaramian has an obligation to address the policies, procedures and actions of the department.

O'Connor said the department's handling of footage release in November shows that Police Chief Patrick Patton was "doubling down" on the belief that KPD conducted itself in an appropriate and lawful manner.

Patton acted as a narrator during KPD's footage release in which the department provided bodycam footage from the officers involved in the incident and other details about the arrests of English and Boyd.

The Zion, Illinois, residents and their 1-year-old son went to the Kenosha Applebee's off Highway 50 on July 20 when they were mistakenly identified as suspects in a nearby hit-and-run crash. The people believed to be the actual suspects were in a bathroom of the restaurant.

The evening was captured on surveillance and cellphone footage by restaurant employees and soon a viral clip showing English being forcefully arrested while holding his baby led to reaction from lawyers, advocates and a police department in a city that is no stranger to strife.

Despite having nothing to do with the crash, prosecutors charged Boyd with resisting an officer, disorderly conduct and possession of marijuana. English was charged with resisting an officer and disorderly conduct.

Soon, rapper Jay-Z announced that he was hiring acclaimed attorney Alex Spiro for English and prosecutors filed a motion to drop the charges last week, which a judge approved.

"Any reasonable person that has a legal mindset knows that in most jurisdictions you can't charge someone with resisting arrest unless you charge them with an underlying crime," O'Connor said.

"I think the DA looked at this and said clearly the police acted inappropriately, clearly they acted excessively, and these charges should not even been brought against them."

Kenosha County District Attorney Michael Graveley and Kenosha police did not immediately respond to questions on Wednesday.

KPD did suspend two officers as a result of their actions that evening. Michael Vences, who was seen in the video striking English, was suspended for four days. Luke Courtier was suspended for 10 days after he did not decontaminate Boyd after she was pepper sprayed. Both officers failed to properly fill out police reports as well.

This was racial profiling, attorney says

O'Connor said Kenosha police "have a poor reputation with dealing with Black and Brown people" and this incident is another example. Activists and advocates have long noted strife between police and people of color.

Kenosha, in particular, is where the police shooting of Jacob Blake occurred. The shooting touched off days of violent protests in Kenosha, during which Kyle Rittenhouse killed Joseph Rosenbaum, 36, and Anthony Huber, 26, and wounded Gaige Grosskreutz, 28.

A jury later acquitted Rittenhouse of all charges in the case after determining he acted in self-defense.

O'Connor believes that Boyd and English were targeted by police because witnesses described Black people running away from the scene of the crash while holding a baby. More than two adults were found in the bathroom and no baby, but it was likely that one adult was carrying a disabled adult.

English and Boyd were targeted for being Black and having a baby, O'Connor said.

"Their crime was eating while Black in Kenosha after 10 o'clock," he said. "This is a family with a baby that got targeted and mistreated for no good reason other than the color of their skin. If this was a white family, I don't think this would have ever happened.

"If they would have just pulled the tapes instead of rushing to judgment because they're Black this would have never happened."

O'Connor says police chief should 'stop playing lawyer'

O'Connor said he is currently drafting a letter to Mayor Antaramian. O'Connor has represented clients across the U.S. and in some cases has received responses from officials, who he then works with to change policies and procedures instead of filing a lawsuit.

He isn't optimistic about Kenosha officials however. "It's been five months" and if they haven't reached out yet they probably won't, he said.

Chief Patton's handling of the video release is a sign that the department needs to change internally, O'Connor said.

"We have a police chief, Patton, who played lawyer if you will and said, look, I'm gonna give you a closing argument and here is why everything the officers did was correct. ... Which makes it sounds to the public that we did everything right and these charges are legitimate," O'Connor said.

"He needs to stop playing lawyer and start acting more like a police chief and take some action, make some changes within that department because if he's telling these officers and publicly saying you didn't do anything wrong, you acted appropriately, he's sanctioning their conduct, and it's gonna happen again, and instead of the next time somebody pulling out pepper spray, they're gonna kill somebody.

"This is what leads to people getting wrongfully killed in situations like this where they haven't even committed an underlying crime."

Accompanying the 11-minute footage release posted to YouTube was several hours of bodycam footage and a news release, which announced the officers' suspensions following an investigation by the West Allis Police Department.

O'Connor will file a federal lawsuit if mayor is unresponsive

O'Connor said it is Antaramian who "has the right to remove, or discipline, or do something to the police chief, or tell him to change his ways or you could be out of office."

"You really shouldn't have to go into court to make these changes," O'Connor said. "They are public servants. They should be doing what's right for the public. And if the mayor can recognize and see what the DA saw perhaps we can get some changes internally, voluntarily, with the department maybe along with the NAACP and the other groups that are involved."

If the mayor is not open to that, O'Connor said he has no choice but to file a lawsuit in federal court.

Antaramian did not immediately respond to questions Wednesday.

Boyd spoke out last week

O'Connor was accompanied by Boyd, her son, and her mother, at a news conference Friday outside the restaurant.

Boyd said it's been a rough few months with pending criminal charges hanging over her head but what she feared most was the safety of her child, during the incident and also whose custody her child would be in while she was unavailable.

"I have no explanation as to why this happened to me," she said. "I was just a mother protecting her child."

The charges being dropped were a relief but the whole experience was traumatizing for Boyd, who said she has never been arrested or booked at a jail. She said she and her son have trouble breathing and sleeping still.

Boyd questions where she'd be today had video not emerged.

"What would the charges be if they would have got away?" Boyd said. "Would I still be the hit-and-run person? Did I really do the crime if them people was not caught in the washroom? That's what I want to know. If they was not caught would I still be the person that supposedly did the hit-and-run, me and my family?"

Boyd said she wants to make sure this doesn't happen to anyone else. O'Connor is requesting an investigation by the Wisconsin Department of Justice.

This article originally appeared on Milwaukee Journal Sentinel: Kenosha Applebee's mistaken identity arrest may result in lawsuit