How a routine procedure resulted in the violent arrest of three farmers
by Buck Quigley
Cops gone wild
Raymond Wierzbec is a salt-of-the earth hard working farmer with strong, calloused hands. Though short, he has broad shoulders that invoke expressions like “built like a tank.” Raymond, 53, his wife Bernice, 51, their son Brian, 25, and daughter Angelene, 29, farm several acres of land in South Wales in the Town of Aurora. The farm is where Raymond grew up. They grow vegetables using natural fertilizers and insect repellant methods, including relying on natural insect predators like praying mantises rather than using pesticides. They sell their produce at the local farmers markets at Clinton-Bailey and in Colden and also to high-end restaurants in the City of Buffalo.
At around 3:30pm on the afternoon of July 2, 2012 their lives took a devastating twist. At the time, Raymond, Bernice and Brian were busy working in the 90-degree heat planting tomatoes. Raymond was fastening a hose from the nearby house to watering equipment using a pair of channel-lock pliers. Bernice and Brian were weeding the field and readying the tomatoes for planting when an Erie County Sheriff’s cruiser pulled up in front of the property, parking in the road and blocking the driveway.
What happened next, from what is found in court papers, including the testimony of witnesses at the trial, is that Sheriff’s Deputy Michael Hoock emerged from the marked car in full uniform, gun in holster, wearing a bulletproof vest. He wasn’t there to investigate any sort of crime but was there on behalf of the Erie County Sheriff Department’s Civil Division. He was simply there to serve legal papers to Raymond concerning a debt owed to M&T Bank for a defunct business matter unrelated to the farm. The Wierzbics had been served papers before, as they were having financial difficulties for some time. As recently as the week before, Raymond and Brian had been served legal papers at their home in Orchard Park by a private process server.
Hoock walked up the driveway, past a trespassing sign, and Brian approached him while Raymond continued to work on the watering system. Bernice was in the field weeding. Brian asked Hoock what he wanted, knowing that he was serving papers as he could see them in the Deputy’s hand. The Deputy asked Brian if he was Raymond Wierzbic. Brian replied that he was not, but that he would take the papers and give them to his father. Legally this was all the deputy needed. According to a later court decision, the deputy should have given the papers to Brian and his duty to serve the papers was then discharged. Unfortunately that’s not what happened.
What happened next was a senseless and horrific escalation of events that ended with a dozen police and sheriff department vehicles lining the quiet road where the farm sits, the three farmers under arrest with Raymond beaten, pepper sprayed in the face multiple times, and, while handcuffed, held under a garden hose fighting to breathe and screaming in pain with his eyes swollen shut from the pepper spray.
Raymond was taken to Erie County Medical Center for treatment for his injuries and complications due to his diabetes and high blood pressure. He was there several hours in clothes reeking of pepper spray and soaked with water from the hosing. As he tells it, he received minimal care at best from ECMC. At around midnight he was eventually taken to the Erie County Holding Center. Hours earlier his wife and son had been taken to the holding center, handcuffed in the back of separate Sheriff’s cars and not knowing the fate of their husband and father Raymond. This was still just the beginning of an ordeal at the hands of the criminal justice system that finally ended on September 30 of this year with the all charges being dismissed.
How did an afternoon planned for planting tomatoes go so horribly off the rails?
Piecing together court testimony, it apparently went down like this:
After Brian approached Deputy Hoock and agreed to take the papers the deputy asked him who he was. Brian told him. Hoock asked for identification. Brian gave him his driver’s license. He explained that he was the owner of the property and that Hoock should give him the papers and leave because he was trespassing on private property. Hoock was told to get off the property several times by Brian but he would have none of it. He wanted to know who the guy was over by the tractor. Hoock then directed his inquiries at Raymond who insisted as Brian did that the deputy leave. After several minutes of words back and forth between the two, Raymond told the deputy that if he didn’t have a search warrant or an arrest warrant, he was trespassing and carrying a weapon on posted property, and that he should get the fuck off. Raymond says at this point the deputy told him he was under arrest.
At some point before he told Raymond he was under arrest, Hoock claims he noticed pliers in Raymond’s hand—the same ones he’d been using to work on the tractor since before the deputy arrived. The two men were approximately thirty feet apart as Raymond motioned for Hoock to leave. Later, under court testimony, Hoock would claim the Raymond was waving the pliers in the air in an aggressive manner and refused to put the pliers down. The deputy said that he felt threatened by the pliers.
After being told he was under arrest Raymond told the deputy that he was crazy—that he had no right to just come onto people’s property where they were working, make them stop what they’re doing and arrest them. After more heated words, Raymond began walking away up a long drive that runs deep into the property to divorce himself from the situation. Hoock pursued him.
As he passed the barn, Raymond put the pliers into his tool chest by the doorway there and continued to walk away from Hoock, who continued following, periodically trying to grab Raymond’s wrist to place him in handcuffs. Each time, the stout farmer pulled his hand from Hoock’s failing grip and continued to walk with Hoock right behind, sometimes punching him in the back. Brian followed behind them. At some point Brian is told he is under arrest for trying to interfere with Hoock.
After walking about a hundred yards away from the road, Raymond says that he heard Hoock’s footsteps rushing toward him from behind, and that Hoock tried to pepper-spray him, with the spray going on the back of his head and side of his face.
Raymond claims that as he was being sprayed he knocked the can of pepper spray out of Hoock’s hand, sending the canister flying. Raymond felt the burning of the spray and angrily told the deputy: “You fuck! You pepper sprayed me?” They exchanged a few words and at this point Hoock gave up trying to put Raymond in cuffs and called for back-up. Raymond walked back to the house and got a towel from a truck and began trying to wash the pepper spray from his skin using water from the garden hose.
While Raymond was cleaning himself off, he cell-phoned his lawyer hoping to rectify what seemed like a huge misunderstanding. The lawyer was familiar with the papers that were being served and he requested to talk to Hoock. At this point Hoock’s back-up arrived, and rather than talk to the lawyer, Hoock slapped the phone out of Raymond’s hand, saying it was too late for that.
It was then that Erie County Deputies James Flowers and Jason Weiss arrived and rushed to where Raymond, Bernice and Brian were standing with Hoock near the house. They were closely followed to the scene by East Aurora Police Officer Robert Braeuner.
Chaos ensued with Hoock, Flowers and Braener setting on Raymond and Weiss separating Brian from the action. As the chaotic scene continued deteriorating, Bernice used Brian’s phone to call the East Aurora Police, hoping to get help from someone other than the Sheriff’s Department. The record of that call is chilling, as Bernice exclaims: “Now they’ve got him on the ground and they’re beating the shit out of him! You need to get the East Aurora police here right now! We need more than one!”
What she didn’t know was that the East Aurora Police were already on the scene.
At some point, Raymond’s son Brian was physically taken down and handcuffed by Deputy Weiss, who claimed Brian was trying to go to the aid of his father and refused to stop. Raymond claims his son was maliciously dropped by a blow to the throat.
Flowers testified that the melee began when Hoock told him all three of the Wierzbics were to be arrested. Hoock again attempted to put Raymond’s hand behind his back but a struggle ensued. Seeing the deputy at a disadvantage, Flowers joined in. In all, it took four officers, pulling Raymond’s hands up as one kneeled on his back and another stood on his ankles while a blast of pepper spray was delivered point-blank to his face before the struggle ended when Raymond passed out.
Raymond woke with the effects of the pepper spray swelling his eyes shut and causing difficulty breathing as the officers held him down in the 90-degree heat, Raymond began screaming that he couldn’t get any air. He thought he was going to die.
The officers then brought Raymond to the side of the house, where officers began running water from the hose directly into his face—to provide him relief from the burning of the pepper spray, according to officers—although Wierzbic claims he felt like they were trying to be drown him, quite similar to waterboarding.
A neighbor who is an EMT with the volunteer fire department ran across the field from his house, and later told Raymond that his eyes were so badly swollen that the EMT couldn’t even see his eyeballs. When medics from South Wales Volunteer Fire Department arrived they checked Raymond and his blood pressure was 290 over 150, and his blood sugar level was over 320. However, when they were told there was a deputy who was injured they forgot about attending Raymond and rushed to attend to the injured officer—who later drove himself to ECMC where he was X-rayed and told to take aspirin as needed for his simple bruise. The medic didn’t return to Raymond.
He was put, soaking wet, with pepper spray running down his entire body, into the back of a Sheriff’s car with two sets of handcuffs digging into his wrists, and left to wait in the back for transport to Buffalo, half an hour away.
On June 10, 2013, the non-jury trial of The People of the State of New York v. Raymond H. Wierzbic, Brian A. Wierzbic, and Bernice R. Wierzbic got under way before Hon. Jeffrey P. Markello in Aurora Town Court. The People were represented by Erie County Assistant District Attorney Anthony Rossi and the defendants were represented by Paul Fallon and Daire Brian Irwin.
The defense argued that Deputy Hoock had arrived at the Wierzbic’s to serve a legal document to Raymond, a task that is often carried out by civilians. The document could have been legally served to Brian, a person of suitable age and discretion, and Hoock could have then simply left the property. They also argued that the deputy had no probable cause to arrest Raymond for Menacing. Typically, Menancing is a charge that somebody gets when they pull a weapon on somebody and threaten to use it. This was hardly the case with a pair of pliers being displayed to an apparently trespassing deputy that was standing ten yards way. They also argued that as a result of the deputy having no reason to arrest Raymond all of the evidence gathered against the defendants was the “fruit of the poisonous tree,” since their constitutional rights had been violated by the deputy when he refused to leave the property—lacking an arrest or search warrant or probable cause to arrest anyone.
During cross-examination by Fallon of Hoock, the defense questioned the validity of the Menacing charge involving the pliers to comical effect:
Q: Okay, you said you felt threatened from the pliers, from ten yards away? You were standing ten yards away from him, and he’s waving these pliers, correct?
Q: Now, did he say, I’m going to hit you with these pliers?
Q: Did he say I’m going to grab your nose with these pliers?
Q: Did he say I’m going to throw these pliers at you?
Q: He’s just waving the pliers, and saying, get the fuck off my property, right?
A: He’s waving them, pointing them at me.
Q: So he’s using them like directing you off my property, correct?
A: He was pointing them at my direction?
Q: What did you think he was going to do with these pliers from ten yards away?
A: I didn’t know.
Q: You have a gun, right?
A: That’s correct.
Q: You have a vest, right?
Q: You have training in protecting yourself right?
Q: So, you’re telling me you were afraid of these pliers, from ten yards away, with your vest, your gun, and all of that—you were afraid of the pliers?
A: I was concerned for my safety, correct.
After two days of testimony in which the judge heard from law enforcement officers and the Wierzbics—often widely disparate accounts of what went on—Markello concluded the trial by reserving decision. Several weeks later he arrived at a verdict, which was mailed to the parties, setting a date for sentencing—which took place on Dec. 4, 2013.
In the judge’s decision Bernice was found not guilty of both the resisting arrest and obstruction of justice. Brian was found not guilty of assault and resisting arrest, but guilty of obstructing governmental administration and sentenced to a fine of $750 plus a $205 New York State Surcharge payable to the Aurora Town Court. He was also ordered to perform 20 hours of community service, provide a DNA sample by swab and pay the $50 DNA fee. Raymond was found not guilty of obstructing governmental administration, but guilty of resisting arrest, menacing in the third degree, and second-degree harassment. His sentence was identical to Brian’s.
Justice on Appeal
A timely appeal was filed and briefs were submitted by both sides. Erie County Court Judge Hon. Michael Pietruszka heard oral arguments on July 21, 2014. Unlike Markello, Pietruszka recognized that none of the mayhem that went on at the Wierzbic’s farm would have occurred had the civil process papers simply been served to Brian at the outset.
On September 30, 2014, he issued his ruling, which reads, in part: “He should have completed his assignment and left the premises when requested. The Deputy’s actions were not privileged pursuant to PL Section 35.20 (4)(b)(i) as he had no further duty to perform and violated the Appellants’ constitutional rights. Therefore, all of the evidence gathered against the Appellants thereafter must be suppressed as the “fruit of the poisonous tree.”
Pietruszka ordered the convictions and sentences for Raymond and Brian reversed, and all charges dismissed.
It is not over just yet though. The Wierzbics have a law suit presently pending in Federal District Court of the Western District of New York against the County of Erie, the Erie County Sheriff’s Department, Erie County Sheriff Timothy Howard, Sheriff’s deputies Michael Hoock, Jason Wiess, Thomas Was, and James Flowers, the East Aurora Police Department, East Aurora Police Chief Ronald Krowka and East Aurora Police Officer Robert Braeuner for what was done to them that day.blog comments powered by Disqus
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