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The way Somerville police officer Michael McGrath wrote it in his police report, he was within his rights to pepper spray the man handcuffed and standing in front of the open door of the police wagon.
But video of the encounter tells a different story, prosecutors wrote in court filings.
McGrath, who serves as president of the Somerville police union, pleaded not guilty to assault in Cambridge District Court Friday. He was criminally charged last month and on paid leave for a year as the case was investigated.
Around 40 supporters of McGrath, including Somerville police and his family, gathered outside the courtroom. The Somerville police union's vice president declined to comment.
McGrath's attorney, Brad Bailey, said the officer denies any wrongdoing, and raised questions about whether McGrath's union leadership played a role.
"We are planning a vigorous and aggressive defense in this case, in which we are looking at all aspects, including whether or not in any way his position as president of the Somerville police patrolmen’s association factors in any way," Bailey said after the arraignment.
The charge stems from a call to a Heath Street apartment early on Oct. 1, 2019. Somerville police were called by the man who lived there, who told officers a woman was in his house who he wanted removed.
So the woman could leave, officers said a car in the driveway belonging to another person at the house needed to be moved. The man moved the car. He had a suspended license, however, and police ultimately arrested him for driving the car.
In McGrath's telling, the man resisted getting into the transport van for the ride to the station.
"With the safety concerns of having a defendant on the top step of the wagon with his feet so close to our upper torso, I sprayed the defendant with my department issued capstun," McGrath wrote in the police report, referring to a brand of pepper spray.
Video from a camera on the transport van, though, showed what really happened, prosecutors wrote. The man was standing on the ground — not on the step of the wagon. The handcuffed man turned his head to say something to McGrath, who was holding his arm, and that's when McGrath sprayed the chemical inches from the man's face.
The man "does not appear to resist and he does not step up on the rear of the wagon or have his feet in the vicinity of any officers' upper torso, thereby placing the officers in a [vulnerable] position," prosecutors wrote.
The charges against the arrestee were dismissed in January, court records show. WBUR is not identifying him because he's no longer charged with a crime.
Bailey, the defense attorney, said the call was an "escalating and volatile" domestic situation. He said McGrath has been injured while attempting to arrest people before.
McGrath was put on leave shortly after the incident in October 2019. At the time, the department said McGrath made “untruthful statements” about the incident while they were investigating whether he used excessive force. He was put on unpaid leave after charges were filed.
Before the charges, Middlesex DA Marian Ryan placed McGrath on her office's "Brady" list -- which tracks officers who may be unreliable witnesses in court because of past conduct — over the incident.
Bailey raised in court what he called the "leak" of video of the arrest, which he said was given to reporters before defense counsel. Bailey said he wanted to know how the video made its way to journalists.
WBUR received the video from the city of Somerville last month after a public records request.
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