Lawsuit? What Lawsuit?

Miami Beach police have no idea why the city paid off a victim of alleged gay bashing

Gerardo Loret De Mola had been working as a computer programmer for the Dade County Aviation Department for almost eight years when he was arrested by Miami Beach police officer Ron Shimko. De Mola says Shimko brutally beat him up because he is gay. In February the City of Miami Beach agreed to pay De Mola $80,000 to drop a lawsuit against the city.

But De Mola's quest for justice is far from over. Since the arrest he has been fired from his job and denied unemployment benefits. The 35-year-old programmer has gone into debt to pay legal fees and to prevent the bank from foreclosing on his condominium. Neither Shimko nor the other two officers present during the beating have been disciplined. The county has refused to reinstate De Mola, and last month a hearing examiner upheld the county's position. A last-ditch appeal is pending before the county manager.

"He was honest, and they used it against him," declares Terrence Smith, an attorney who represented De Mola at the hearing. "Here is a guy who was pretty much an upstanding character. People testified that he was a role model. But no one was listening. No one wanted to hear our arguments."

The basic facts of De Mola's arrest are not in dispute. On February 26, 1996, De Mola stopped at the municipal beach parking lot near 64th Street and Collins to eat Burger King take-out and watch the sunset. Meanwhile, Officer Shimko was watching De Mola. The area was "known for heavy drug use and illicit sexual activity," Shimko noted in his report; he also noticed that De Mola appeared to be behaving suspiciously. After ten minutes another car pulled into the lot. The driver approached De Mola on foot, spoke to him briefly, got inside De Mola's car, remained there for about a minute, and then left. De Mola started to drive away, but Shimko ordered him to stop, get out of the car, and prepare to be frisked.

"He put his hands behind his head, but refused to interlace his fingers and spread his feet," the report states. "I feared for my safety when I took the arrestee's hands, and he tensed his upper body and tried to turn around."

De Mola says that Shimko painfully yanked his hands and his hair, which was gathered in a ponytail. When he protested, Shimko threw him down. He says Shimko rubbed his face on the asphalt, doused him with pepper spray several times, severely twisted his ankle, and kicked him as he lay handcuffed on the ground. One of the other officers kneeled on top of him. Struggling to breathe because of the spray, De Mola asked for air. "He said, 'If you can talk, you can breathe,'" De Mola remembers.

The alleged physical abuse ceased only after a back-up officer called to the scene discovered AIDS literature in De Mola's car and pointed out the risk of infection. The officers had drenched him with so much pepper spray that in order to get away from him, De Mola says, the officers threw him in the back of a cruiser, unrolled the windows, and waited for the car to air out. But De Mola claims the verbal abuse continued. "They laughed at the photograph on my driver's license because I had long hair," De Mola recalls. "They said I must be a drag queen." Later, at the Miami Beach booking facility, De Mola says officers referred to him as a "faggot" and told him he had to sit on a bench because he would "contaminate" the cells. No one administered first aid, he says; only after repeated begging did De Mola persuade an officer to splash water in his eyes to alleviate the sting of the irritant.

De Mola was charged with resisting arrest with violence, aggravated battery on a law enforcement officer, loitering or prowling, obstructing justice, and possession of cannabis. The last allegation was added to Shimko's report by a second officer, who claimed that a "warm marijuana cigarette" was found in De Mola's car. De Mola insists the cigarette, if it existed, was planted.

Distraught, De Mola contacted his supervisor in the aviation department, Maurice Jenkins, and told him what had happened. At the time of the arrest, De Mola was on short-term disability leave for a bronchial infection. He had been planning to go back to work the next day, but he asked Jenkins if he could take some extra time to recover from the attack.

"I saw him 48 hours after the arrest, and he was a wreck," recalls Jean-ne Carmichael, a psychotherapist who says she treated De Mola for post-traumatic stress disorder. "He was totally dazed and in complete shock."

Hoping to prove that he had not been smoking marijuana, De Mola asked his doctor to do a drug test. The results came back positive. But Marinol, a drug De Mola takes to combat the wasting effects of HIV, can cause misleading results: It is a synthetic version of THC, the active ingredient in marijuana.

A few days later Jenkins called De Mola. The county also wanted him to take a drug test. De Mola demurred. If he took the test, De Mola worried, he would have to explain that he was taking Marinol, and it would become obvious that he had HIV. De Mola has been infected since 1984, but he feared confiding his status to his supervisors. Over the years he has accepted criticism for excessive sick leaves and frequent tardiness, without explaining the reasons for his absences. Although he once revealed that his partner, who eventually died, had AIDS, De Mola's own diagnosis was a secret.

"I am more than my HIV diagnosis," De Mola explains. "I don't think I wear my sexuality on my shoulders. I'm a professional person and I do what I'm supposed to do." Personnel records characterize him as a "meticulous" employee whose performance was routinely rated at satisfactory or above, and other county employees describe De Mola as helpful and friendly.

According to Florida law, no one can be forced by an employer to disclose a diagnosis of HIV or AIDS. De Mola told Jenkins he wanted to confer with an attorney about the drug test. After his lover died in 1993, De Mola says, he has not taken a drink or used drugs. Concerned that he had become dependent on alcohol and drugs to deal with the trauma of his lover's illness, he had checked into a confidential drug treatment program for county employees.

Over the next four years De Mola set about reconstructing his life. He stopped partying and began volunteering long hours at the Unity on the Bay church, helping to redecorate the sanctuary and landscape the grounds. He participated in support groups for people with AIDS and regularly attended Alcoholics Anonymous, for which he also did renovations. "If someone is doing drugs, the last thing they are worrying about is completing a paint job for an AA meeting room or a church," De Mola's friend and AA sponsor Marty Lyden comments. Lyden vouches for De Mola's claim to sobriety, saying the two men speak on the phone every few days and see each other regularly.

Jenkins waited a week for De Mola's response. On March 15 he sent him a warning letter: "As a result of your three refusals to submit to the drug/alcohol testing, you leave the department with no alternative but to pursue disciplinary action." He drew up a formal document with a list of county policies De Mola had violated, including insubordination and conduct unbecoming an employee.

Lyden and the Reverend James Trapp from Unity accompanied De Mola to two hearings to discuss the violations. De Mola was initially hopeful that his supervisors would be sympathetic, especially because the criminal charges against him had been dropped on March 29. But the atmosphere was hostile from the start.

Lyden recalls: "It was evident that he was up against a wall and that they were going to shoot him down." Lyden remembers Jenkins had his chair tilted back and his legs propped against the table and barely seemed to listen to De Mola's statement. "The pervasive attitude was that he was guilty even though the charges had been dropped." Jenkins referred a request for an interview to the county's legal department.

On June 3 De Mola learned he had been terminated. Lee Kraftchick, the assistant county attorney who handled the dismissal, says that in the past ten years fewer than fifteen county employees have declined to take the drug test. "As far as I know, everyone who refused the test was terminated. And every one of them had an explanation just as compelling as Mr. De Mola's. It wasn't until the appeal hearing that he started talking about the possibility of revealing his HIV-positive condition. It was an excuse after the fact."

An appeal to another hearing officer was denied. De Mola was "clearly guilty of insubordination," Edward Quigley wrote in denying the appeal, discounting De Mola's worries about revealing his HIV status. "The Appellant is also in direct conflict in keeping good order and discipline within the county organization." Because De Mola was fired for misconduct, he is not entitled to unemployment benefits. Smith is appealing that decision. The attorney says there is a possibility that De Mola was justified in not taking a drug test while he was on disability leave. Last year a state appeals court ruled that someone could not be fired for having refused a drug test after they had signed out for the day.

The dismissal threw De Mola's life into a tailspin. Bills began to pile up. He was unable to meet the mortgage on his condo and was forced to cede part-ownership to an investor who took over the payments. While he had spent fourteen years living with relatively few health complications relating to his HIV, the recent stress caused his T-cell level to plummet. De Mola will have difficulty finding affordable health insurance to replace the policy he had with the county.

After the charges against him were dropped, De Mola sued the City of Miami Beach for engaging in a "long-standing custom, policy, and practice of permitting its officers to assault, abuse, harass, and intimidate gay persons." The city agreed to pay $80,000 to settle the suit out of court. The assistant city attorney who handled the case declined to comment. "The City of Miami Beach does not have a habit of paying out claims unless they find them to be well merited," said attorney Jeffrey Blaker, who represented De Mola in the suit. The settlement has enabled De Mola to regain title to his condo and pay his lawyer bills, but he still has been unable to square all the debts he incurred as a result of his arrest, not to mention overcome his feelings of outrage. "I feel I'm a good person, that I treat people with kindness, the way I want to be treated," he says. "I didn't want to be treated differently, I just wanted to be treated fairly."

None of the officers involved in his beating was disciplined, though they all have been the subject of prior internal affairs investigations. Shimko alone has generated eight complaints since he was hired in 1990, including two for excessive use of force, one for minor use of force, and three for discourtesy. None of the complaints was sustained by the department. Since the beating, Shimko stopped De Mola and accused him of improperly blocking a lane of traffic. Shimko also showed up at the police station the day De Mola had an appointment to get his record expunged. De Mola says Shimko made him feel so uncomfortable that he left. Shimko did not respond to a request for an interview.

"We have recognized that Officer Shimko may come across to citizens inappropriately, and we'd like for him to learn to discuss things with people better than what he does," says Assistant Chief Jim Scarberry. But he emphasizes that the Miami Beach Police Department believes Shimko and the other officers acted appropriately, although no investigation of the arrest was ever conducted. The police department has not investigated the allegations that De Mola was the target of repeated anti-gay slurs by members of the force during and after the arrest.

"Mr. De Mola did not file an internal affairs complaint," Scarberry declares. (De Mola counters that he thought the lawsuit itself was sufficient to trigger the complaint process. He says he will now file one if necessary.) "The settlement outlines that the police department and city admit no liability and no fault and are not accepting any responsibility," Scarberry continues. "The settlement does not mean that we believe our officers have done anything wrong."

The unwillingness of county officials to admit that he was unfairly treated not only by the cops but also by bureaucrats has caused De Mola to speak out about his experience even if it means publicly exposing his HIV status. "I don't want to see other people in this position, when they feel they can't express themselves, like they have no rights," he explains. "That is why I am taking a stand. I am over guilt and shame.

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