Man with mental illness spent nearly 5 months in jail before body cam video revealed Garfield Heights officers beat, tased and mocked him

CLEVELAND, Ohio -- A group of Garfield Heights police officers punched, kicked and repeatedly shocked a man diagnosed with bipolar and schizophrenia disorders with a stun gun, according to body camera videos obtained by cleveland.com.

The videos show the officers hurl curse words at 28-year-old Kenta Settles as he lay handcuffed on the ground.

Officer Michael Malak stopped Settles Jan. 23 as he walked on the sidewalk on Turney Road in the city’s main business corridor. Malak immediately detained Settles without telling him why, and, in a matter of seconds, Malak and another officer, Robert Pitts, tackled Settles to the ground and shot Taser prongs into his back as he lay in the fetal position, the videos show.

The ensuing scuffle left Malak with a broken nose and Settles with a chipped tooth, a rotator cuff injury and a slice near his eye, according to police and court records.

Settles was indicted by a grand jury seven days after his arrest on charges of felonious assault of a peace officer and obstructing official business. He was jailed on a $250,000 bond. Garfield Heights police were cleared two weeks after his indictment by an internal investigation that lay all of the blame for the altercation on Settles.

He remained in jail for nearly five months, facing more than two decades in prison, as his case inched through the court system. Then the disclosure of the police officers’ body camera videos, which had been a public record for more than five months, sparked a flurry of developments in the last week.

A judge on June 8 granted Settles a personal bond and released him from the county jail. Settles on Thursday filed a lawsuit in federal court in Cleveland accusing Malak, Pitts and three other Garfield Heights officers who aided his arrest of using excessive force against him and violating his constitutional rights.

Cuyahoga County Prosecutor Michael O’Malley’s office on Friday dismissed the criminal charges against Settles, two days after the county prosecutor whose office indicted Settles in January viewed the body camera video for the first time.

O’Malley’s office will go back to the grand jury and re-present “the entire case” for any additional charges, a spokesman said on Friday. The spokesman refused to answer any other questions about the case, including whether O’Malley’s office is considering seeking charges against the officers.

The developments come amid unprecedented demand for increased scrutiny on police brutality and the criminal justice system. Demonstrators in Cleveland and cities around the world have taken to the streets by the thousands to decry police killings that have disproportionately affected people of color.

Settles is black. All five Garfield Heights police officers who participated in his arrest are white.

Jeremy Tor, an attorney at Spangenberg, Shibley and Liber, who filed the lawsuit on behalf of Settles, said in an interview with cleveland.com that he could not say whether race played a role in Settles’ treatment.

“I think the conduct displayed here is unreasonable, unnecessary and unwarranted,” Tor said. “This is an example of police officers approaching and treating this man with hostility rather than humanity.”

Settles, a father of three who was set to enroll in barber college this year, took a bus to Garfield Heights from Cleveland to visit his brother on Jan. 23, according to the complaint. He was going to borrow a pair of hair clippers so he could give his young son a haircut for his birthday the next day, Tor said.

Settles decided to stop by CVS on Turney Road so he could fill a prescription, Tor said. Settles is diagnosed with bipolar disorder, schizophrenia, PTSD and ADHD, according to the complaint.

The store looked close, but the drive-thru was open, so Settles decided to walk through it. Settles realized after a few minutes of standing in line that he probably looked out of place, so he decided to let the driver in the car ahead of him know he was just picking up his prescription, Tor said.

The man told Settles that he had a gun. The threat, combined with the sound of the man’s horn, spooked Settles, so he left without getting his medication and headed up Turney Road, the complaint says.

Garfield Heights Police Chief Robert Byrne said Friday that the original call was for a man trying to pull another man out of his car and that an armed robbery had been reported near the same CVS about 90 minutes earlier. Byrne did not describe the robbery suspect, and Settles has not been charged with any activity that occurred at the CVS.

Body camera video released to cleveland.com shows the driver, who said he had his elderly mother in the passenger seat, told police after Settles was arrested that he thought Settles was a “bum” and was going to ask him for money. The man said Settles stood behind his car for about a minute before he moved quickly up to the door and “jerked” on the handle. The man laid on the horn and told Settles to leave, he said.

“When I laid on the horn, he pointed, like he was saying something,” the man was recorded telling police on the video. “I couldn’t hear because I was laying on the horn.

The man said Settles walked, not ran, away from the car after he sounded the horn. He said he decided to call the police because he thought Settles might have been trying to steal his car, and he decided that “if he went down the street and carjacked somebody, I don’t know if I could live with myself.”

“Well, what he did was go down the street and punch a police officer,” the officer responded.

The officer took the man’s statement that and relayed it to an officer at the scene of Settles’ arrest, who asked if Settles took any property.

“He did not,” the officer said. “He aggressively pulled on his passenger door handle trying to enter his vehicle, and he was able to lock it and pull away.”

The driver never said that Settles tried to enter his vehicle, the video shows.

Screenshots from the Garfield Heights police body camera videos of the Jan. 23, 2020 arrest of Kenta Settles.

Malak came upon Settles walking along Turney Road about half a mile away, pulled over his police car and yelled for Settles to stop, the body camera video shows. Settles took a few extra steps as Malak approached him and continued to holler for him to stop and to “come here,” the video shows. Settles turned to Malak and uttered “whoa,” froze and held up his hands, the video shows.

Malak grabbed Settles’ left arm and told him he was “being detained.” Settles asked Malak what was going on, and the officer walked him to the police car, pushed him up against it and made him put his hands on the hood to search him without ever telling him why.

“Why didn’t you stop when I asked you to stop,” Malak asked, as Pitts showed up in another police car. Settles said he did, and Malak replied, “no, you didn’t.”

Malak then told Settles to spread his feet. One second passed, and Malak repeated the command. Another one second passed, and Pitts grabbed Settles’ arm, began to bend it behind his back, and said, “alright, put your hands behind your back.”

Neither officers’ body camera video clearly shows what happened next, but a struggle ensued. The officers forced Settles to the ground, and Malak called for backup. The officers yelled for Settles to “stop resisting” as they delivered blows to his body. Pitts struck Settles several times in the head, according to the lawsuit.

The video shows Pitts striking Settles’ in the head as he lay on his side in the fetal position. Both men told him to put his hands behind his back as they continued to strike him. Malak then pulled out his Taser and shot prongs into the lower part of Settles’ back that is exposed because his body was curled up. Pitts also fired Taser prongs into Settles’ shoulder.

Settles jerked over onto his back as he was electrocuted, and he reached for the Taser prongs stuck in his skin. The officers screamed for him to roll over on his stomach as he continued to reach for the electric prongs in his back. Settles swung his arm at Malak’s Taser as it continued to shock him, and the officers jumped on him and continued to strike him.

Officer Brian Regovich, Sgt. William Gall and Lt. Todd Vargo showed up at the scene for backup as the struggle continued, according to police and court records.

The officer’s swore at Settles as they continued to shout for him to stop resisting. Settles eventually is rolled over on his stomach, and the officers cuff his hands behind his back.

Pitts, Vargo and Regovich held Settles down for almost two minutes as he lay motionless on his back. Regovich stood with his boot on Settles’ forearm while Vargo checked Settles’ wallet for his ID.

Malak, whose nose was bleeding, called Settles a “f-----g piece of s--t” as he lay on the ground, the videos show. Pitts called him a “f-----g a-----e.”

More than a minute later, as police still held him to the ground, Settles began to cry.

Malak stepped toward him, leaned down and raised the pitch of his voice, as though he were talking to a child, the video showed.

“Are you crying?” Malak mocked. “Oh, you poor baby. You shouldn’t f-----g hit cops, you a-----e.”

Another officer can be heard on the body camera telling Malak to back off.

Byrne excused Malak’s comments in response to questions from cleveland.com about whether his conduct violated any department policies.

“We don’t expect conduct such as this from our officers,” Byrne said. “However, Officer Malak had just sustained a broken nose and a facial fracture in the altercation. Two supervisors that were on scene immediately told him to stop his behavior.”

It’s unclear on the video at what point in the struggle Malak broke his nose. Malak wrote in a use-of-force report that Settles punched him after he had already shocked Settles with the Taser.

After the officers stood Settles up and before they put him in the back of a police cruiser, Gall’s body camera recorded

“I hope you all had fun tonight,” Settles said.

Gall responded with, “this isn’t our idea of fun.”

“You confused the f--k out of me,” Settles said. His wet eyes glistened in the reflection of the flashing blue police lights. “Do me like that, out of nowhere. Was that fair?”

Gall told Settles that all he had to do was stop and talk, and “none of this would have happened.”

“You didn’t ask me to talk,” Settles said.

Gall said that he wasn’t there.

“Right,” Settles said. “You wasn’t there.”

A short time later, Gall asked Pitts what happened. Pitts said that Settles was “whacking” both he and Malak, and said that he got struck in the leg and Malak got struck in the head.

“We started giving it back to him,” Pitts said.

Garfield Heights police filed charges of felonious assault on a police officer, assault, resisting arrest and disorderly conduct against Settles, and he was ordered jailed on a $250,000 bond.

County prosecutors presented the case to a grand jury one week after his arrest, and Settles was charged with felonious assault of a peace officer, a first-degree felony that carries up to 11 years in prison. O’Malley’s office also included on the charge a specification that labeled him a “repeat violent offender” because Settles pleaded guilty to an aggravated robbery in 2009 that occurred when he was 17 years old and charged as an adult instead of in juvenile court. Had he been found guilty of that specification, a judge could have tacked another 10 years to his sentence. He also faced charges of obstructing official business.

All told, the charges carried a maximum sentence of 24 years in prison.

Settles remained in the Cuyahoga County Jail for nearly five months, including throughout the coronavirus pandemic that began in March and has seen more than 100 inmates eventually test positive for the virus.

Garfield Heights police also conducted an internal review into the arrest, which appears to have consisted of little more than reviewing the officers’ statements and the body camera video.

Malak wrote in the report that Settles resisted their commands for him to spread his legs by “tensing his body up,” and they decided to immediately force his hands behind his back “due to Settles’ larger stature and likely hood [sic] of injury to officers.”

Malak wrote that Settles increased his resistance and Pitts performed a leg sweep to take Settles to the ground. Settles continued to ignore officers’ commands to stop resisting while on the ground and “became extremely violent,” Malak wrote, so the officers both deployed their Tasers.

Malak wrote that the Tasers had “no effect” on Settles, and at some point, Settles grabbed the Taser and punched him in the nose. Officers then began to strike Settles in the head, and Malak put Settles in a reverse headlock, he wrote in his report.

Garfield Heights Deputy Chief Mark Kaye wrote in an addition dated Feb. 13 that he found Malak and Pitts and the other officers did not violate policy based on a review of their statements and the body camera videos.

“Settles, through statements and actions, was intent on not only escaping from officers, but also causing physical harm to them,” Kaye wrote. “After removing... Malak’s [T]aser from his hand, then striking him in the face causing serious physical harm, all methods of physical force became open to officers in order to handcuff Settles and place him under arrest. Therefore, the TASER usages, drive stuns, and strikes used by officers to ultimately gain compliance were within the use of force policy for this department.”

Kaye does not address whether the Taser shocks and punches that the officers delivered before Malak said Settles hit him were within the use-of-force policy.

Byrne said in a video statement posted on the department’s Facebook page Monday evening that the officers immediately detained Settles so they could pat him down for weapons, and took him to the ground after he became tense.

Byrne also said the officers, whose only question to Settles before they patted him down was why he didn’t immediately stop, “would have no way of knowing” that Settles had a mental illness.

“No use of force incident is ever going to look good,” Byrne said. “In this situation, I believe our officers acted appropriately.”

It’s unclear when prosecutors first viewed the body camera videos of his arrest.

O’Malley’s spokesman, Tyler Sinclair, refused to disclose to cleveland.com if anyone in the prosecutors watched the body camera video before securing the indictment against Settles.

Sinclair said O’Malley saw the video on Wednesday, and by Thursday had called Settles’ defense attorney, Thomas Shaughnessy, and told him that his office would drop the charges. Sinclair also said that the prosecutor’s office would present “the entire matter” to the grand jury again at a later date.

Sinclair declined to answer other questions from cleveland.com, citing “an ongoing criminal investigation.”

Tor said he expects to add claims of malicious prosecution now that O’Malley’s office dropped the charges against Settles.

Shaughnessy, who represented Settles in the criminal case, said he was pleased with Friday’s outcome. He also noted that O’Malley’s office dismissed the charges against Settles without prejudice, meaning the office can re-file charges against him in the future.

“If charges are ever brought forward again, we look forward to our day in court, and I believe Kenta will be fully exonerated,” Shaughnessy said.

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