The charge, a misdemeanor that carries a maximum penalty of six months in jail and a $1,000 fine, was filed against the veteran officer this week by Avon Lake Prosecutor John Reulbach Jr., who was brought in as a special prosecutor in April to handle the criminal investigation into the Jan. 27 incident.
Elyria Police Chief Duane Whitely said Loesch isn’t in danger of losing his job and will continue to work as a detective while the case makes its way through Elyria Municipal Court.
Whitely said Loesch, who didn’t respond to a request for comment made through the police union, already has been disciplined internally by the Police Department and can’t be punished again.
Loesch was given a 10-day suspension earlier this year after an internal police investigation concluded that he punched Johnny Smith Jr. while Smith was handcuffed to a hospital bed at EMH Medical Center in Elyria. Loesch served five days of the suspension, but won’t have to serve the remaining five days as long as he doesn’t get in additional trouble for a year.
“Anything other than that would be a double punishment for a single incident,” the chief said.
Whitely also said that Loesch, who didn’t fight his suspension, won’t have to give up his badge even if he’s convicted of assault, because it’s not a charge that would bar him from serving as a police officer.
“It would have to be something more serious,” said Whitely, who has been barred by city lawyers from commenting on the allegations against Loesch because Smith has threatened to sue the Police Department.
Reulbach said that if Loesch is convicted, he could apply to have the conviction expunged from his record in a year.
Smith’s lawyer, Joseph Triscaro, said the assault charge against Loesch is fair given the circumstances.
“I think the prosecutor did a thorough investigation, and I think it’s a proper charge,” Triscaro said.
Bob Phillips, Loesch’s union attorney, said Friday that he still needs to talk with Loesch and Reulbach about the charge.
“I anticipate that once we get all the cards on the table, we’ll have a successful outcome,” Phillips said.
Smith, 43, had been taken to the hospital following his arrest on numerous charges, including an allegation he tried to run down Elyria police Officer James Rider with a semi truck. Police said Smith resisted arrest and physical force had to be used to bring him under control.
According to hospital personnel, when Smith arrived in the company of several officers, including Loesch, he was highly intoxicated. A blood test determined his blood-alcohol level was 0.355, well above the legal driving limit of 0.08. But while Smith was cooperative with medical personnel, he and the officers appeared to be upset with each other, according to statements from hospital staff.
According to witnesses, Loesch’s punch came after Smith made a comment about the death of Elyria police Officer James Kersetter, who was shot and killed March 15, 2010, by Ronald Palmer.
Loesch and Officer Donald Moss later fatally shot Palmer on 18th Street after Palmer refused orders to surrender. A Lorain County grand jury later ruled Palmer’s death justified.
Various witnesses, including Smith, have given different versions of his comment, but essentially he told officers that he wished Palmer had killed them as well on the night Kerstetter died. Smith later apologized for the remark.
Another officer at the hospital, Richard Walker Jr., said the comment “quickly struck a nerve with Patrolman Loesch.”
According to a nurse who watched what happened on a monitor connected to a video camera in the secure treatment room, Loesch and Walker went into the room where Smith’s left wrist was handcuffed to the bed and shut the door. Loesch then punched Smith once on the left side of his face.
The force of the blow has been in dispute. Walker described it as an “attention-getter” that wouldn’t have harmed his 10-year-old. Smith, however, has said he nearly blacked out from the force.
If the punch had caused a serious injury, he said, Loesch would have faced a felony charge.
“Mr. Smith reported no serious physical harm from being ‘socked,’ ” Reulbach wrote of his conversation with Smith.
Smith, who has an extensive criminal record, remains in the county jail while he awaits sentencing after taking a plea deal in April. In exchange for Smith pleading guilty to failure to comply, obstructing official business and DUI charges, prosecutors dropped theft, resisting arrest and assault charges.
Smith could get up to 30 months in prison when he is sentenced in July, but prosecutors have said they won’t oppose a six-month sentence.
Smith was one of two men who ultimately were arrested for their roles in the theft of steaks and beer from the Apples grocery store in Elyria. The other man, Jeff Marcum, has pleaded not guilty to a theft charge for allegedly wheeling a shopping cart full of stolen merchandise out of the store and loading it into the cab of the semi Smith was driving.
Police caught up to the truck in a parking lot near the Burger King on Cleveland Street, where officers say Smith tried to run Rider down. Smith has insisted he didn’t see Rider and wasn’t trying to hit him.
Officers surrounded the truck at a stoplight on Cleveland Street and arrested Marcum, but Smith refused to get out of the truck, according to police reports, the internal investigation and what Reulbach learned when he reviewed the case.
Smith, however, has insisted that he was complying with officers, got out of the truck on his own and was then assaulted by Rider, whom he contends struck him twice in the head with a flashlight, and other officers. He has said he suffered vision and memory loss from the alleged beating.
Reulbach said that wasn’t what he learned.
“He did not voluntarily exit the semi truck and walk to the rear thereof and get assaulted by a police officer,” Reulbach wrote in a letter to Elyria Law Director Terry “Pete” Shilling in which he explained the results of his investigation.
“He had to be removed, no question,” Reulbach continued. “And whatever injuries he sustained occurred as a result of his removal therefrom and/or the subsequent actions of police officers to contain and control a person who was highly intoxicated and who wanted neither to be contained or controlled.”
Reulbach said that police and other witnesses, including two employees at the nearby Burger King, all insisted that Smith had to be forcibly removed from the truck.
His decision not to charge any of the officers in connection with Smith’s arrest mirrored those of the internal police investigation into Smith’s arrest. No officers were disciplined for their handling of the arrest, either.