These pictures show wounds Nitro resident David A. Botkins alleges he sustained after he was arrested by St. Albans police officer Brandon L. Tagayun in November. (Courtesy photos)

Tagayun

CHARLESTON - A former Charleston police officer, whose actions resulted in the city paying a nearly $2 million settlement to the estate of Fayette County woman, now is accused of brutalizing a Nitro man while on duty at his new job as a St. Albans officer.

Brandon L. Tagayun is named as a co-defendant in a five-count civil rights lawsuit filed by David A. Botkins. In his complaint filed in Kanawha Circuit Court on Aug. 6, Botkins, 28, alleges Tagayun used excessive force in arresting him early one morning in November while a reserve police officer, A.C. Truit, stood idly by and failed to intervene.

Both Truit, and the city of St. Albans are named as co-defendants in the suit.

Early morning rumble

According to his suit, Botkins maintains he was confronted by Tagayun and Truit on Nov. 23. Though the suit does not specify the reason for the encounter, a criminal complaint Tagayun filed against Botkins in Kanawha Magistrate Court alleges he and Truit, while on foot patrol, observed Botkins in an altercation with two other men at the Taco Bell on the corner of MacCorkle Avenue and Third Street around 3 a.m.

In his complaint, Tagayun alleges he observed Botkins "standing in an aggressive stance with what appeared to be a plaster cast on his right hand" in the presence of two other men, one with a wooden club, and the other with a Mag-Lite flashlight. In approaching the scene, Tagayun claimed to hear Botkins say he was going to beat one of the other man's "ass."

After identifying he and Truit as police officers, Tagayun says the other two men dropped their weapons and "got to the ground as ordered." However, Botkins refused.

"At that time," Tagayun says in his complaint, "fearing for our safety, we attempted to detain Mr. Botkins. Upon our approach, Mr. Botkins began actively resisting our efforts to place him under arrest."

Records show Botkins was charged with assault, brandishing and resisting arrest.

Tagayun, Botkins alleges, failed to mention how he pistol-whipped him into submission. In his lawsuit, Botkins maintains that Tagayun struck him "with the butt of his service weapon several times" and "kicked and spat upon the Plaintiff while he was convulsing on the ground."

The suit also alleges that only Tagayun physically handled Botkins during the arrest. During such time, Botkins alleges Truit "negligently failed to intervene, although having a duty to do so."

Later, Botkins was taken to Thomas Memorial Hospital and treated for injuries he received following his arrest. According to his suit, Botkins received "seven surgical staples in the front right area of his scalp to close a seven centimeter laceration, three surgical staples in the back of his scalp to close a three centimeter laceration and treatment for abrasions to his torso."

Arrest conceals misconduct

On July 10, records show Kanawha Magistrate Kim Aaron dismissed all three criminal charges against Botkins. The dismissal of the brandishing and resisting arrest char came at the request of the Kanawha County Prosecutor's Office while the assault charge was done on the ground Tagayun filed a "defective complaint."

In addition to ones for violations of constitutional rights, Botkins makes claims for battery, false arrest and malicious prosecution. He alleges that Tagayun "did maliciously and falsely obtain warrants for" Botkins' arrest which "were obtained through false information and otherwise were without probable cause in an attempt to conceal the wrongful and illegal acts committed upon the Plaintiff."

The entire ordeal, Botkins alleges, has left him with "physical, mental and emotional damages." In addition to incurring medical expenses, Botkins further alleges he's suffered "embarrassment, humiliation, annoyance, inconvenience and deprivation of liberty."

Botkins is seeking unspecified damages. He is represented by Charleston attorney, and former Kanawha County Prosecutor Michael T. Clifford.

Tagayun's past

The allegations stemming from Botkins' arrest comes four months after Tagayun, 28, joined the St. Albans Police Department in July 2008. Four months prior to that, Tagayun completed his sentence on criminal charges stemming from an a collision he had as a Charleston police officer in 2005 with Charlton Heights resident Patsy Sizemore which resulted in her death.

According to court records, Tagayun on Oct. 14, 2005 was heading east on MacCorkle Ave. in Kanawha City to assist another officer in handling a domestic disturbance call that the Kanawha Mall. He was traveling at 80 mph, twice the posted speed limit, with his lights and siren off.

As they were preparing to turn into the Morris Memorial United Methodist Church parking lot from the westbound lane of MacCorkle Ave. to attend a square dance class, Patsy and Gary Sizemore's pick-up truck was clipped by Tagayun The collision totaled Tagayun's cruiser, injured both he and Gary, and killed Patsy, 69,who was driving the truck.

Records show, Patsy, who was ejected from the vehicle, died almost instantly as a result of head injuries.

On June 15, 2006, Tagayun was indicted by the Kanawha County grand jury on a count of negligent homicide, a misdemeanor. After reaching a plea agreement with the prosecutor's office in which he pled guilty to speeding and failure to operate an emergency vehicle with lights and sirens, also misdemeanors, Tagayun was sentenced by Judge James C. Stucky to one-year supervised probation effective March 26, 2007, and fined $200.

Stucky, coincidently, has been assigned Botkins' civil suit.

A wrongful death suit Sizemore's estate brought against the city and Tagayun on Nov. 15, 2005 was settled for $1.8 million on July 19, 2006.

According to the Charleston Daily Mail, Tagayun, who resigned from the Charleston Police Department prior to his indictment, moved, along with his wife and two children, to Orange, Calif. to work as a recruiter for Maxim Health Care. St. Albans Mayor Dick Callaway said the Tagayuns returned to West Virginia be closer to family.

According to Callaway, Tagayun was one of 17 people who applied for a single vacancy on the department. Though the fatality involving Sizemore was considered, Callaway told the Daily Mail that through testing, qualifications and references, Tagayun was deemed the most qualified for the job.

"Actually, people wonder why I made the decision to hire him," Callaway said. "It really boils down to a moral decision on my part."

"I also realize that everyone has accidents, and many times things cannot be avoided. Had I made the decision based on (the accident), that would not have been the moral and proper thing to do ."

Kanawha Circuit Court, Case Nos. 09-C-1432 (Botkins civil), 06-M-61 (Tagayun criminal), 05-C-2572 (Sizemore civil) Kanawha Magistrate Court, Case Nos. 08-M-16049-50,16113 (Botkins criminal)




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