WEST VIRGINIA RECORD

WHEELING – A 71-year-old man says a Weirton police officer threw him to the ground in a grocery store after the man cursed at him in the store's parking lot.

Gary Clyde Borham and his wife, Linda Ann Borham, filed a federal suit against Weirton police officers Eric Popish, Rodney Patterson and Rick Scheetz and the city of Weirton over the incident, which occurred two years ago.

The Borhams say Gary Borham was pulling his vehicle into Kroger's parking lot on Oct. 9, 2007, when he encountered Popish, who was unloading groceries into his parked car.

"Apparently perceiving that Mr. Borham was operating his vehicle at too high a rate of speed, Popish yelled at Mr. Borham, 'Hey! Slow down old man!'" the suit states.

Upon hearing Popish yell at him, Gary Borham slammed on his brakes and yelled, "F--- you!" out of his partially open window, according to the complaint.

"Popish, evidently incensed over the disrespectful tone and the vulgarity used by Mr. Borham and in spite of the fact that Popish, as is his custom, initiated the disrespectful speech, and receiving the response in his customarily thin-skinner manner, rapidly and aggressively approached Mr. Borham and his vehicle," the complaint says.

Scared, Gary Borham says he pointed to a console at the top of his car and told Popish to back off because he had "one." When asked if Gary Borham had a gun, Gary Borham replied he had a concealed weapons permit, according to the complaint.

After Popish backed away from the vehicle, Gary Borham yelled at him, asking Popish who he thought he was, the suit states.

"Popish in his usual, polished, classy and diplomatic fashion replied, 'I'll show you who the f--- I am!' and stormed off," the complaint says.

Gary Borham claims he began grocery shopping, but was quickly approached by Popish and his fellow Weirton officers Patterson and Scheetz, who accosted him.

Popish ordered Patterson and Scheetz to place Gary Borham in custody for assault, but Gary Borham resisted the officers' arrest, according to the complaint.

In turn, the officers "forcefully took him (Borham) to the ground, thereby causing severe injury to his fingers and hands, shoulders, neck and back," the suit states.

Because Gary Borham resisted the officers' arrest, he was additionally charged with obstructing an officer and resisting arrest, the complaint says.

Gary Borham claims he was also charged with assault in Brooke Magistrate Court, but both charges were later dismissed with prejudice on Jan. 13.

Gary Borham claims he never should have been arrested because he violated no laws.

"The conduct of Mr. Borham was lawful and protected, both as speech and actions," the complaint says. "In arresting Mr. Borham as aforesaid and in causing and procuring Mr. Borham's criminal prosecution, Popish, Patterson and Scheetz acted intentionally with malice, wantonness, recklessness and/or negligence."

Because of his arrest, Gary Borham says he suffered physical harm, extreme fear, torment, suffering of his body and mind, embarrassment, humiliation, aggravation and inconvenience, unlawful deprivation of his civil rights and damage to his reputation. He also incurred medical costs, the suit states.

Claims against the city and police officers include intentional infliction of emotional distress, battery, defamation, negligent retention and hiring, false imprisonment, civil conspiracy, negligent training and supervision, assault and loss of consortium.

The Borhams are seeking exemplary damages, attorneys' fees, costs and other relief to which they may be entitled.

Robert G. McCoid of McCamic, Sacco, Pizzuti and McCoid in Wheeling and Lawrence L. Manypenny and James T. Carey of Manypenny and Carey in New Cumberland will be representing them.

U.S. District Court case number: 5:09-CV-65