The judge dismissed a lawsuit claiming police used excessive force and unlawfully arrested Harlan Fletcher because Fletcher declined to answer questions under oath about whether he had used drugs in the past.

Without ruling on the merits of its claims, a federal judge Feb. 14 dismissed a lawsuit alleging that several Marshall police officers used excessive force in unlawfully arresting a man in August 2016 at a Sonic Drive-In in Marshall.

U.S. District Judge for the Western District of Missouri David Gregory Kays dismissed part of the lawsuit Jan. 25. The plaintiff, Harlan Fletcher, Jr., 66, of Marshall, had declined to say in depositions whether he used or possessed drugs on the day he was arrested after his attorney advised him to invoke his right against self incrimination. While Fletcher had the right under the Fifth Amendment to not answer, Kays ruled that he could not prosecute his claims unless he did answer, because the questions were relevant to his claims.

Kays gave Fletcher until Feb. 1 to answer, under oath, whether he used or possessed drugs the day he was arrested, or Kays would dismiss the case with prejudice. Fletcher fired his attorney after being informed that he had to answer the questions, according to Kays’ judgement. The attorney filed a motion to stay proceedings while Fletcher hired a new attorney, but Kays rejected that motion and dismissed the case on Feb. 14.

“Even if the Court granted a stay and (Fletcher) secured new counsel, which is unlikely, (Fletcher) would still face the same choice: answer the questions or have his case dismissed with prejudice,” Kays wrote. “Finding a new attorney will not change the law or the Court’s decision.”

The lawsuit was dismissed with prejudice, which means Fletcher can’t re-file the lawsuit. However, he can appeal the ruling. Charges against Fletcher for drug possession from that arrest were dropped after a Saline County judge suppressed evidence gathered during the arrest, saying the officers didn’t have probable cause to arrest Fletcher or search his truck.

Fletcher filed the lawsuit in 2017 against the City of Marshall, Marshall Police Chief Michael Donnell, two other Marshall police officers, the Sonic Drive-In of Marshall, and a Sonic carhop.

Fletcher alleged that officers violated his federal civil rights by arresting him without a warrant or probable cause, and that they used excessive force by pulling him out of the cab of his truck onto the pavement, hitting him and pepper-spraying him. He also claimed Donnell did not properly train his officers to uphold the constitutional rights of citizens, and that the city and department have condoned officers using excessive force and lying about the circumstances.

Fletcher, a 64-year-old veteran of the Vietnam War who has disabilities and weighed 140 pounds at the time, drove his truck to the Sonic in Marshall around 11 p.m. Aug. 11, 2016, to buy a large, chocolate milkshake, according to a complaint filed by his former attorney. A carhop called police at 11:08 p.m. to report that Fletcher was “slumped over his wheel,” and that another carhop reported seeing a bottle of tequila in his hand, according to the complaint.

Marshall Police Officer Troy Johnston, now a deputy with the Saline County Sheriff’s Department, arrived a few minutes later. He saw Fletcher moving clothing around and then moving his hand around his waist, he wrote in a probable cause statement. When Johnson started talking to Fletcher, Fletcher put his hand on something near his hip and pushed it behind his back, Johnson wrote.

Fletcher told Johnson he was slumped over because he spilled his shake, which Johnson saw spilled on the driver’s seat and floor. Fletcher showed the officer an empty tequila bottle, saying he collected old bottles but doesn’t drink. He had another piece of a glass bottle shaped like a person in the center console of the truck. Johnson didn’t smell any alcohol, according to the complaint.

When Johnson asked Fletcher for his I.D., Johnson saw a red bag between Fletcher’s back and the back of the seat, the officer wrote in his probable cause statement.

Fletcher said in a deposition that he had been diagnosed with PTSD, and Johnson said he didn’t have enough time with Fletcher to see any symptoms. Johnson was only looking for signs of drug or alcohol impairment, not PTSD symptoms, he said in a deposition. Fletcher was fidgety, unable to make eye contact, and slurring his speech, which made Johnson think he was intoxicated, the officer said in a deposition.

Johnson asked Fletcher to step out of the truck because some people had reported that he might be intoxicated. Fletcher couldn’t get the truck door open, because he was parked too close to the Sonic menu board. At that time, Marshall Police Corporal Samuel Gibson arrived and approached the passenger-side door of the truck, according to the complaint. Gibson had encountered Fletcher once before, when Fletcher had parked in someone else’s driveway so he could look for bottles in a creek, he said in a deposition.

After several questions, Fletcher told the officers they needed to get a search warrant and leave him alone, according to the complaint. Johnson told Fletcher to get out the passenger side of the cab, because he couldn’t open the driver-side door. At that point, Johnson did not smell alcohol or see any drugs in the car, but he was suspicious about the red bag, he said in a deposition. Fletcher’s attorney argued the officers didn’t have probable cause to ask Fletcher to get out, and Fletcher refused.

The two officers forced Fletcher out of the truck. Johnson claimed Fletcher was trying to put his keys in the ignition so he could flee. Fletcher claimed Johnson punched him and sprayed him in the face with pepper spray before the two officers pulled him head first over the center console and out the passenger door, according to the complaint. Johnson wrote in a report that Fletcher kept resisting after he was handcuffed, and repeatedly hit his own head against the ground.

After Fletcher was arrested, Johnson searched his truck. On the floor on the right side of the truck, Johnson found a red camera bag containing small amounts of marijuana and methamphetamine, and a glass pipe. He believed that was the bag he saw Fletcher trying to hide behind his back, according to the probable cause statement. Fletcher’s attorney claimed that Johnson made false assertions on his probable cause statement, and that details of his incident report didn’t match the footage captured by his body camera.

Fletcher was charged with felony and misdemeanor drug possession and possession of drug paraphernalia, but Missouri 15th Circuit Judge Dennis Rolf suppressed evidence from the arrest and search, ruling that the officers didn’t have probable cause, according to the complaint. Saline County Prosecutor Donald Stouffer then dismissed the charges.