MAGGIE VALLEY — The SBI has opened an investigation into the Maggie Valley Police Department regarding an alleged excessive use of force in a Jan. 2 incident.

Along with confirming the investigation, an SBI spokesman added that the investigation was opened at both the request of District Attorney Ashley Welch and Maggie Valley Police Chief Russ Gilliland.

The arrest and incident reports lay out the series of events that led to the allegedly unlawful use of force.

At the heart of the matter are Richard Arlt, the man who was arrested, and Officer Jeff Mackey, who punched Arlt twice in the face, leading to a broken nose, a right orbital fracture and loosened teeth.

According to the arrest report and the incident report filed by the Maggie Valley Police Department, the incident occurred the night of Jan. 2 after Arlt’s wife called 911 to report that she was afraid her husband was going to drive his RV drunk.

An officer arrived on scene to find that Arlt, 56, was severely intoxicated. When approached by the officer, Arlt, whose blood alcohol content was measured to be about .28 later that night at the hospital, took off. Although he didn’t get far, once he stopped, he refused to get out of the RV.

Arlt was pepper sprayed, restrained with handcuffs and removed from the RV. After the pepper spray was rinsed from his eyes, he had trouble standing. Mackey, along with the officer who first confronted Arlt and a Haywood County Sheriff’s deputy, attempted to get him to the police vehicle to transport him to the Haywood County Detention Center, but at one point he fell forward and subsequently rolled onto his back on top of his handcuffs.

When officers tried to bring Arlt to his feet, he kicked Mackey in the face, after which Mackey punched him twice in the face.

Arlt was transported to the hospital, where a magistrate came and read his charges before he was released early in the morning on Jan. 3. Following the incident, Arlt was charged with reckless driving, driving while impaired, two counts of resisting a public officer, and one count of assault on a government official or employee.

The attorney representing the complainant, Russell McLean, wouldn’t say much on the record, but he did confirm the nature of the investigation.

“There’s an investigation, and we’ll be meeting with [investigators] to discuss the use of force issue,” he said last week.

In a Tuesday morning interview, Maggie Valley Police Chief Russ Gilliland also confirmed the investigation.

“We decided for all parties involved that it was best to have an outside agency come in and look at the incident, the outside agency here being the SBI,” Gilliland said, adding that his department is also conducting its own internal investigation.

Once the SBI investigation — which will include interviewing all parties and witnesses, as well as reviewing any other relevant evidence — is complete, the findings will be provided to Welch’s office, and if it is determined Mackey acted unlawfully, he will be charged.

James Coleman is a Duke University law professor who is also the co-director of the Wrongful Convictions Clinic and the director for the Center for Criminal Justice and Professional Responsibility.

While the arrest and incident reports provide a consistent narrative, if a clear video of the incident exists, that will be a critical piece of evidence. Coleman said that investigators will try to determine whether Mackey’s actions were necessary to defend himself.

“The question is whether, after the person kicked him, if the police officer had a reasonable basis to believe that the person was continuing the attack,” he said. “If he did, then he has the right to defend himself.”

However, Coleman added that the force used can be no greater than necessary to protect himself.

“If the guy’s just kicking wildly and you can protect yourself by just moving out of range, you don’t get to beat him just because he kicked you,” he said. “That would be retaliation.”

Coleman said it’s hard to tell which way the case will pan out, although he did offer a hypothetical prediction.

“I can tell you my guess on this which is unless there’s video, they won’t charge the officer because the officer will claim that he was defending himself against the attack,” he said, noting that it may come down to who is more trustworthy, Arlt, who was heavily intoxicated, or Mackey. “Unless there’s video tape that shows that’s not true and if the man was restrained and not in a position to continue the assault.”

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