Gun Nut

The Spike is a big believer in the scientific theorem known as What Goes Around Comes Around. Thus The Spike was happy to see that a Phoenix police officer recently won a million-dollar lawsuit against a bad guy since it's usually the bad guy who sues the cops.

In September 1998, Officer Chris Emch, then 26 years old, was called to a domestic disturbance at the home of Alan and Cathy LoBue. Alan, then a local defense attorney, was reportedly arguing with his wife and physically holding her down. This was not good because, according to court records, Alan weighed roughly 300 pounds. She called the cops.

Emch arrived to find the front door open and Cathy standing near the base of a stairway. An angry Alan was coming down the stairs, carrying a gym bag in his left hand and a .357 revolver, in a holster, in his right.

Emch climbed the stairs toward LoBue and repeatedly asked him to put the gun down, which LoBue refused to do. The gun apparently wasn't loaded, although Emch didn't know it at the time, partly because LoBue kept saying things like: "Don't make me have to use this" and "I know how the courts work; I'm not giving up my gun."

Later, during a deposition, LoBue was asked why he didn't just put the gun down. "Once you put the gun down you have lost any ability to have any control of the situation," LoBue answered. "I know that once I put the gun down, you know, I have lost any equality with Officer Emch because he's the one who has the gun and I don't."

Yikes. Perhaps LoBue was laying the foundation for some sort of insanity plea. Nah. The Spike thinks he's truly just a big idiot. Read on.

Needless to say, a struggle ensued. "He attacked me like John Wayne on the Sands of Iwo Jima," LoBue said during the deposition. Emch grabbed LoBue's gun arm but LoBue managed to hide the gun behind his back.

Emch, who could no longer see LoBue's hands or the gun, jumped down about five or six stairs to the floor where he landed wrong -- and seriously injured his back.

Emch contends he wouldn't have gotten hurt if LoBue hadn't acted like a numskull, which is the basis of the whole lawsuit.

But first, here's how the evening turned out:

Emch finally pulled his own weapon and pointed it at LoBue -- who was still holding his gun behind his back -- then eased out of the house. He called for help.

Meanwhile, LoBue went down the stairs and into the kitchen where he loaded the .357 and cocked it. Then he engaged police in a three-hour standoff by sitting in his vehicle, gun in view, refusing to come out. He says he finally got hungry and thirsty and gave up, according to court records. He was charged with felony disorderly conduct, a charge that was later plea-bargained down to a misdemeanor. He was sentenced to a year's probation and anger management school.

Chris Emch's back pain gradually worsened. He was unable to work. After consulting with several specialists, Emch agreed to let Dr. Mark Letellier perform surgery in June 1999, nearly a year after the struggle with LoBue. That proved to be the final undoing. The Spike will spare you the medical debate (many experts involved) and won't even try to explain what it means to have a "dorsal column stimulator" implanted in your back, like Chris Emch ultimately had to have.

According to court records, after Letellier's "surgical intervention," Emch's back pain worsened significantly and he was in constant pain, the kind that perhaps only people who suffer from chronic back problems can truly understand. He became severely depressed and, at one point, hooked on painkillers.

Emch was found to be totally and permanently disabled and was forced to retire from the police department.

In September 1999, Emch filed suit, contending that LoBue's negligent, reckless and outrageous conduct caused him to lose his career and essentially crippled him for life. Emch later added Letellier, his surgeon, as a defendant in the lawsuit.

Finally, just before the case was to go to trial earlier this year, LoBue and Letellier agreed to settle -- LoBue ponied up $975,000 for his bad behavior and Letellier settled for an additional $50,000.

LoBue is lucky it wasn't more. Emch was asking for nearly $5 million if the case went to a jury trial.

The Spike thinks juries, which tend to side with cops, likely would have been delighted to get their hands on a case where the boot, so to speak, is on the other foot. Most lawsuits resulting from a police action are brought by the suspects who claim brutality, discrimination, harassment and the like.

It's almost unheard of for a cop to sue a bad guy. Thomas Slack, Emch's attorney, tells The Spike that's partly because the law makes it difficult for a police officer to seek damages from an offender.

The so-called "firemen's rule" says that firefighters and police can't sue if they are injured in the course of their duties as a result of ordinary negligence. For instance, a firefighter who is injured while responding to a fire that started because the homeowner left a candle burning can't seek payment for his injuries from the homeowner.

But, Slack says, the rule falls apart when the circumstances surpass ordinary negligence and the homeowner or bad guy, in this case LoBue, takes actions that make things worse. "This guy changed the character of things when he refused to put down the gun," Slack says.

The Spike, being a rapt student of why people do the things they do, is still puzzling over that one. This was not some meth freak between jail stints. LoBue is a highly educated man, an attorney as familiar as anyone can be with police behavior. Yet he refused to put down a gun when asked to by a cop in uniform. Surely he must know that that's how people (including not infrequently the cops themselves) get shot.

The Spike called Alan LoBue, who is now at the Navajo County Legal Defender's Office.

"I really got nothing to say about it," LoBue tells The Spike.

The Spike thinks LoBue said enough during his deposition. Acknowledging that the gun might have been pointed at Emch during the struggle on the stairs, LoBue said: "It went in his direction and I am thinking: What is this guy, an idiot? Fighting over a gun like this."

The Spike couldn't have put it any better.

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Patti Epler
Contact: Patti Epler