Lawsuit filed against resigned BPD officer, city

A former Burlington police officer who resigned while under investigation for potentially lying in an affidavit he wrote for a criminal case is being sued by the man who, as a result, was charged with felony drug possession and spent four months in jail while the case was pending. 

Michael Mullen of Richmond, through his lawyer David Bond, filed the lawsuit against former Burlington officer Christopher Lopez of Milton and the City of Burlington last month. Mullen alleges that Lopez and the city violated his rights, and he is asking for   damages and any other relief the court may see fit. 

Bond said he and his client are speaking to other parties, including an insurance company for the city, about how to settle the case. 

"This case seems appropriate for settlement," Bond said. "Liability seems pretty easy to establish. My client's damages are pretty significant."

Attempts to reach Lopez's lawyer Philip Woodward were unsuccessful Thursday. Pietro Lynn, who is representing the City of Burlington, referred comments to City Attorney Eileen Blackwood. Attempts to reach Blackwood were not immediately successful.

Lawyers discovered that Lopez may have lied in a written affidavit after body camera footage from an October 2016 traffic stop was found to contradict what he eventually wrote to establish evidence for criminal charges against Mullen. Body camera policy through the police department allows officers to stop recording when they are having on-scene conferences. Lopez thought he had switched off his camera, but it continued recording the statements in question, officials have said.

Burlington Police Department was made aware of the suspected perjury and placed Lopez on administrative leave in February. Lopez resigned the day before the department intended to fire him. Mullen's case was ultimately dismissed, along with about 15 other criminal cases in which Lopez had been involved. 

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The complaint, which was filed on May 16, states that Lopez knowingly committed perjury to support criminal drug charges brought against Mullen and that Lopez had expanded a routine traffic stop into a "full-scale drug investigation despite having no reasonable basis for so doing." 

"The search got expanded at every opportunity," Bond said. "It was, from beginning to end, an abuse of the Fourth Amendment." 

The complaint also alleges that the City of Burlington knowingly maintained a body camera policy that "provides its police force with the opportunity to operate free from meaningful supervision, scrutiny, and oversight." It further states that the city failed to adequately train Lopez in proper investigative techniques. 

Burlington Police Chief Brandon del Pozo declined to comment on "matters under litigation," saying the lawsuit was with the city's attorney and insurance company.

Del Pozo, however, when read part of the lawsuit, said it misstated part of the police department's policy. He clarified that cameras are allowed to be turned off when officers are speaking with each other, not during interactions with members of the public, as he said the complaint stated.

Del Pozo has defended the department's body camera policy in the past. 

"Officers being able to turn the camera off when they are not conducting an interview, interacting with the public or collecting or documenting evidence is sound policy that we have no intention of altering," del Pozo told the Burlington Free Press in March.

Mullen's complaint recounts the traffic stop from Oct. 24, 2016, during which Lopez had initially stopped a car containing Mullen and a friend because the car's license plate light was out.

In an on-scene conference shown by Lopez's body camera footage, Lopez can be heard telling a fellow officer he wants to find a way into the car because "something doesn't feel right," but that he doesn't smell anything emitting from the car.

"I mean, I can if I need to, but I don't like going that way if I can't back it up," Lopez tells Officer Nicholas Riezi. "They're both like — you know, they're tatted the (expletive) up." 

Lopez later wrote in his affidavit that he smelled emissions from the vehicle that he knew to be fresh marijuana "based on my knowledge, training and experience."

Lopez then went back to the car and continued to question Mullen and his friend. 

"This prolonged and expanded seizure was not based on any reasonable suspicion of criminal activity, but took place merely because Mr. Mullen and (Mullen's friend) were "tatted the (expletive) up," and driving a "(expletive)box," the complaint states. 

The complaint also alleges that Lopez eventually told Mullen he would be free to leave, but would have to leave the car on the scene. However, when Mullen went to leave, Lopez stopped him and conducted a "pat frisk" of Mullen, the complaint states. During the frisk, Lopez discovered less than one gram of cocaine in Mullen's person. Possession of that quantity of cocaine is a misdemeanor under Vermont law. 

"The only legitimate purpose of a pat frisk is to assure the officer that the person under investigation is not carrying offensive weapons," the complaint states. "This small amount of cocaine could not in any way be confused with an offensive weapon and, consistent with the dictates of the Fourth Amendment, should not have been retrieved from Mr. Mullen's pocket." 

A drug-sniffing dog eventually arrived on scene. Lopez told Mullen that the dog alerted to the presence of drugs inside the car. Mullen disagreed, as he knew there were no drugs in the car, the complaint states. Mullen eventually consented to a search of the car because he "believed there was nothing he could do to stop (Lopez)." 

A bag of white powder was found inside a backpack in the car, the complaint states. Mullen's lawyer Bond said his client told him the powder found was actually baking soda. Bond said he is unsure if the material was tested. Del Pozo declined to comment. 

"Nevertheless, the officers concluded that it was cocaine," the complaint states. "Because the combined weight of the baking soda and the gram of cocaine found on Mr. Mullen's person were in excess of 2.5 grams, Mr. Mullen was charged with felony possession of cocaine." 

As a result of the felony charge and an unaffordable bail amount, Mullen was placed in the custody of the Vermont Department of Corrections and held in prison while his case pended from October 2016 until February, the complaint states. 

Vermont State Police completed an investigation into whether Lopez committed any criminal wrongdoing, and the case is currently with the Attorney General's Office. The case remained under review as of May 24. Attempts to reach Assistant Attorney General John Treadwell on Thursday for an update on the case were unsuccessful. 

Lawyers for Lopez and the City of Burlington have asked the court if they could file written responses to Mullen's complaint by July 17. A motion states that Mullen's lawyer Bond consented to the time frame. 

Contact Elizabeth Murray at 651-4835 or emurray@freepressmedia.com. Follow her on Twitter at @LizMurrayBFP.