Attorney Brandon Potter

The lawyer for two men who claim that a former Stone County deputy used excessive force while arresting them says the dismissal of state charges against one of the men has no bearing on federal civil lawsuits filed against Brandon Flack and the Stone County sheriff's office.

On July 4th, twenty year-old Seth Fagan was arrested after Flack was dispatched to the Y Bridge in Galena for a fight in following the fireworks celebration in Galena.
According to the  probable cause statement filed by Flack, "As I approached Seth I observed that his black clothing was covered in what appeared to be white dust which would to be consistent with the dust on the ground at the Cox Access. As I illuminated Seth with my flashlight I observed he had a bloody bottom lip and scuff marks, small lacerations to his elbows. Seth was sweating profusely and attempting to send what appeared to be a text message for his cell phone."

Seth Fagan

"Seth was failing to listen to my commands to stay seated while I was speaking with Central Dispatch. After approximately three time of asking Seth to sit down he opened his flip phone and snapped it in half holding both section of the phone in opposite hands. He then brought back both hands to approximately shoulder height and threw both sections of the cell phone striking both of my legs."

Flack says Fagan, 20, of Reeds Spring, resisted arrest twice by "using his weight against mine to pull me around."  Fagan's attorney, Brandon Potter, says his client suffered "a broken nose and numerous cuts and bruises" when he was arrested by Flack.

In a negotiated plea deal, Fagan pled guilty to charges of minor in possession (he was placed on 1 year probation) and the state dismissed the charges of resisting arrest.  "The resisting case was dismissed because it was really not much more than a little bit of a struggle not wanting to go with the officer- he didn't flee and didn't fight with the officer," said prosecutor Matt Selby.

On January 30, 2012, Flack was dispatched to 1201 Hardin Hills Drive in Galena after a neighbor of Robin Miller's called authorities to say a controlled burn was crossing a private road and encroaching their property. The Stone County fire department was dispatched to put the blaze out and contacted the sheriff's office because Miller was driving his four-wheel drive El Camino "close to their emergency vehicles while they were fighting a fire."

"At that time, I had smelled a very strong odor of intoxicating liquor on his (Miller's) breath and had observed that he was highly intoxicated and unable to stand alone without holding onto a car that he was standing next to. He promised me at that time that he would not drive a car that night, and agreed with me that he was too intoxicated to drive a motor vehicle," Flack wrote in court documents.

Within minutes of departing, Flack was again dispatched to Miller's property because he "had almost rolled his vehicle into the side of a fire truck and into fire personnel." As Miller's vehicle approached a roadway, Flack initiated a traffic stop which was ignored. Flack then used his patrol cars loudspeaker to order Miller to stop, according to the probable cause statement.

"After the vehicle stopped and Miller opened his driver side door and stepped out of the car the vehicle lunged forward as he tried to exit the car. Miller began to fall out of the vehicle but somehow managed to get the car stopped before falling out of the car onto his head, chest and upper body."

Flack says Miller refused to comply with his demands and attempts to handcuff him. "I was forced to take him to the ground to gain control over him," Flack wrote in the probable cause used as a basis for the charge.

Potter says Miller's left ear was nearly severed from his head in the altercation and his client has accumulated over $52,000 worth of medical bills related to the incident, but a dollar amount on damages they are seeking has yet to be determined.

Miller pleaded guilty to charges of driving while intoxicated and was placed on two years unsupervised probation.  "Miller was driving on his own property and had not been on a public road, but he was clearly driving and was obviously under the influence," said Selby.  As part of the plea agreement, the state agreed to not seek charges of resisting arrest against Miller.

The federal civil cases filed by Miller and Fagan, which seek an unspecified dollar amount, are working their way through the court system, according to Potter.