Ill man tossed under wheels of county justice
June 19, 2008
By KAREN VELIE
Les Harvey’s nightmare encounter with “the system” started with a hamburger.
Outside a McDonald’s in Arroyo Grande, Harvey, 64 and terminally ill, sat in his parked van and started to eat his dinner, the burger he had just purchased from the fast-food eatery. For that, he was about to be forcefully arrested, stripped of his earthly belongings, and sentenced to a year in Atascadero State Hospital, an institution for the criminally insane.
Harvey’s intense blue eyes contrast sharply with his severely slurred speech. Saddled with Lou Gehrig’s disease, a gradual degenerative ailment leading to paralysis in its later stages, Harvey struggles with clarity in speaking.
Although Harvey for years earned a comfortable living as an electrical engineer, his health problems took their toll physically and financially, and Harvey, the last of his clan, was forced to live in his van. He published a 260-page golf instruction manual shortly before his incarceration, hoping to earn the resources to end his vagabond existence.
On the evening of January 12, Harvey had just unwrapped his burger when a Five Cities Security guard, Douglas Malsi, approached Harvey and told him he was not allowed to be in the parking lot. Malsi then asked him to move on, according to a subsequent police report. Harvey refused to leave.
“What is your problem?” Harvey asked the guard. “I am eating my food.”
Malsi claimed the property owners did not want people loitering in the parking lot. However, a representative of Five Cities Security told CalCoastNews.com that customers are allowed to eat their purchases in their cars. The company refused to comment on the incident with Harvey, however.
The episode escalated when Harvey said, “I am going to finish my dinner, and then I am going to leave.” Malsi then called the Arroyo Grande Police Department for assistance.
“I told Harvey he did not have the right to be on someone else’s property loitering and upon being asked to leave by the security guard, he needed to leave,” Officer Shane Day wrote in his ensuing incident report.
Harvey then told the officer, “I will leave in approximately 10 minutes.”
Day then opened the van’s door and Harvey stepped out. Day “placed a control hold on him,” according to the police report. When Harvey appeared to struggle, two additional officers assisted in “controlling Harvey and placing handcuffs on him.” That “control” comprised of wrestling Harvey’s arms behind him while another officer applied an additional “restraining hold.”
Harevy claims he did not resist arrest.
Harvey, a man with no history of arrests, kept a Smith and Wesson handgun underneath his seat for protection, according to th police report. Located by police during an ensuing search, the pistol resulted in a charge of carrying a loaded, concealed firearm in a vehicle, to go along with the trespass allegation. Harvey contends the firearm was in the back of the van.
Harvey met his public defender for the first time in court the day of his hearing. Harvey contends that other than requesting he plead “no contest,” he was given no other legal assistance. Harvey declined the suggestion and entered a not guilty plea.
During the proceedings, Harvey realized that he was not being given a chance to present his defense. Harvey interrupted the court to try to explain that he suffers from Lou Gehrig’s disease — and needed his medication. He then was ushered from the court room.
At that point, San Luis Obispo County Superior Court Judge Michael Duffy ruled Harvey was mentally incompetent; no one bothered to inform Harvey of the ruling.
Duffy’s perfunctory ruling included this directive: “The court orders that the defendant is committed to the California Department of Health for placement in Atascadero State hospital/County Mental Health until such time as his mental competence is restored and/or a maximum term of one year with credit for time served…,” according to court documents.
Harvey spent just one night at County Mental Health; within two hours, Harvey was found to be mentally competent. The rest of his 87 days of incarceration were spent in San Luis Obispo County Jail. Harvey says that numerous attempts to reach his public defender were unsuccessful.
On March 4, Harvey sent a nine-page letter to Duffy in which he noted that the few years he has left have probably been shortened because of inadequate medical care and failure to follow his dietary needs while in county custody. Harvey insightfully and articulately outlined to the judge his belief that the court failed to protect his constitutional right to confront charges; to be protected against unreasonable searches; to receive adequate legal counsel; and to remain innocent until proven guilty.
“Has anyone looked up the definition of trespassing?” Harvey asks in his letter. Just in case, he included it: “1. Violation of moral or social ethics, an unwarranted infringement. 2. An unlawful act committed on the person, property, or rights of another; the action of injuries done by such an act; the tort of wrongful entry on real property.”
Harvey demanded that Duffy dismiss all charges and return his belongings.
On March 17, the court restored Harvey’s right to be considered mental competent. Two weeks later, all criminal charges were dismissed and Harvey was released from jail, only to find all his belongings had been disposed of while he was incarcerated.
College Towing sold Harvey’s van, along with his golf clubs, electronic golf cart, two flutes, two laptop computers, extensive electronic equipment, credit cards, his Social Security card, and birth certificate because of Harvey’s “failure” to pay towing and storage fees within the required 60 days. In jail at the time, Harvey had no idea that his belongings were stored.
For the next few nights, Harvey plans to sleep on the side of the road.
“The tragedy is that our culture has regressed; if you don’t fall into our cookie-cutter expectation, we want you out of sight,” said David Fisher, an attorney retained to represent Harvey in a personal injury and damage lawsuit. “He has nobody, so they ate him up.”