Rapper's lawsuit over 2018 arrest will proceed during FBI probe of Hamilton County detective

Staff photo by Doug Strickland / Charles Toney Jr., right, and his attorney S. Lee Merritt left the Hamilton County-Chattanooga Courts Building on Thursday, Dec. 13, 2018, in Chattanooga, Tenn.

A federal magistrate judge denied this week Hamilton County Sheriff's Office Detective Blake Kilpatrick's request to put a lawsuit on hold as the U.S. Department of Justice investigates the detective for a 2018 arrest in which a viral video showed him punching and kicking a handcuffed Black man.

District Attorney Neal Pinkston asked the U.S. Department of Justice to investigate after a bystander filmed part of the Dec. 3, 2018, arrest of Chattanooga rapper Charles Toney Jr. and posted it to social media.

Kilpatrick, who earns $53,681 annually, remains on administrative leave with pay, though elected officials, Toney's attorneys and community groups including the NAACP have called for his firing.

In a February motion, Kilpatrick's attorney Gerald Tidwell - after confirming the FBI is still investigating his client - argued that, while he expects Kilpatrick will be exonerated by the criminal investigation, the lawsuit could jeopardize his defense in the criminal case. That's because if Kilpatrick asserts his Fifth Amendment right against self-incrimination, it could hurt him in the civil case.

While juries in criminal cases are instructed not to consider a defendant's refusal to testify as evidence of guilt, juries in civil cases are permitted to draw their own conclusions.

A hearing was held on March 22, and on Monday, U.S. Magistrate Judge Christopher Steger denied Kilpatrick's request to pause the civil case but left Kilpatrick the option to refile the motion should he be criminally indicted in the future.

In his order, Steger referenced case law that states that "Fifth Amendment concerns are 'not very compelling' when there is no indictment," and Kilpatrick has not been indicted. That means that granting a stay could lead to a long delay that could risk the loss of evidence, failed memories or witness unavailability.

"The court can see no reason not to proceed with this discovery while memories are fresh and documentary evidence, if any, can be found," Steger wrote.

In their response to Tidwell's motion, Toney's attorneys Andrew Clarke and Howard Manis argued that Kilpatrick's alleged beating of "a handcuffed prisoner" is "a quintessential matter of public concern. This lawsuit is a way to effect change benefitting the public at large and prevent future police misconduct of similar ilk."

In his order, Steger wrote, "The public has an interest in the expeditious resolution of claims concerning the government's abuse of power and violation of core rights. If the Court were to stay this case, the public interest could potentially be harmed."

The $250,000 lawsuit alleges Toney sustained broken ribs, a broken nose, a broken finger and a collapsed lung during the arrest and that the county has engaged in a pattern of allowing deputies to engage in excessive force and discrimination against Black residents.

Both the county and Kilpatrick have denied any wrongdoing in their responses to the complaint. Additionally, Kilpatrick has filed a counterclaim seeking the same amount.

Toney's suit is just one of several the county is facing for similar allegations of police brutality in recent years, including at least two wrongful deaths, multiple beatings, a roadside body cavity search, a forced baptism and one instance in which a Black woman claims she was called a racial slur and her hair pulled out from the roots while being restrained to collect a blood sample while at the Hamilton County Jail.

Sheriff Jim Hammond has defended his department, telling the county commission, "You will not find an agency in the United States that has a better compliance record when it comes to how we operate in the, in the best standards this nation has on being a law enforcement officer."

Contact Rosana Hughes at 423-757-6327, rhughes@timesfreepress.com or follow her on Twitter @HughesRosana.