No charges for LPD officers after K9 mauls man’s neck in 2020 arrest, special prosecutor says

More than a year after a Lafayette police dog ripped into Richard Bailey Jr.'s neck, bringing accusations of excessive force, a special prosecutor says LPD officers' conduct wasn't a crime

Footage of a May 2020 arrest of Richard Bailey Jr., pulled from three Lafayette police officers’ body cameras, was synced and released by LPD Chief Pat Flannelly after a special prosecutor was assigned to investigate claims of excessive force. An LPD K9 mauled Bailey by biting into his neck during the incident. A special prosecutor did not recommend criminal charges against the officers, according to new court documents. (Photo: Screenshot, LPD)

Lafayette police officers who were on the scene when an LPD K9 mauled an Indianapolis man, ripping into his neck for close to 30 seconds during a May 2020 arrest, won’t face criminal charges for use of excessive force, based on a recommendation of a special prosecutor assigned to the case a year ago.

In court documents filed May 28, Mary Hutchison, assigned as a special prosecutor out of the Madison County prosecutor’s office, said she came to that conclusion after a six-month Indiana State Police investigation into an arrest that had an LPD police dog going for Richard L. Bailey, Jr.’s neck.

An internal Lafayette police review had cleared K9 Officer Josh Saxton, along with officers Nicholas Klimek and Victor Sikorski, for their actions when releasing K9 Boyka from Saxton’s squad car and siccing the dog on Bailey as he was on the ground, being handcuffed. Bailey and his attorneys told the Lafayette Journal & Courier – which uncovered video of the arrest in 2020 – that the dog bite punctured his trachea, cut his carotid artery, damaged neck tissue and left him in a medically induced coma in an Indianapolis hospital for six days.

Tippecanoe County Prosecutor Pat Harrington asked for a special prosecutor on June 11, 2020, a little over a month after the incident. Police body-cam footage from the scene raised questions from Bailey’s attorneys and some in the community about LPD’s K9 policies and why a man was allowed to be attacked on the neck for half-a-minute.

Hutchison wrote that the Indiana State Police investigation included “numerous interviews, … a multitude of documents” and expert consultations. She called it “a thorough and complete investigation.”

“At the conclusion of the investigation, it was my job to review the evidence and make a determination of whether a crime was committed,” Hutchison wrote on Madison County prosecutor letterhead, in a document filed with Tippecanoe Circuit Court.

“After my review,” Hutchison wrote, “it is my determination that the conduct of the Lafayette police officers that were the subject of this investigation was not criminal in nature.”

Court records did not include a report on the full investigation.

A few days later, on June 3, Special Prosecutor Rodney Cummings – the prosecutor in Madison County – filed 11 criminal charges against Bailey for an altercation witnesses said drove them to call police to an apartment complex on the east side of Lafayette on May 9, 2020.

Bailey, now 46, was charged with a mix of five felony and six misdemeanor counts, including criminal confinement, battery, strangulation and intimidation stemming from an incident on Brampton Drive. A warrant was issued for his arrest, which had not happened as of Wednesday morning, according to court records.

Lafayette Police Chief Pat Flannelly said Tuesday that his department knew about the special prosecutor’s decision several weeks ago.

“Vindication, I’m not sure that’s the word I’d use,” Flannelly said. “There are people in the community that don’t necessarily understand the police use of force, the training, the tactics, the case law, everything that goes into it. I know it’s comforting to our officers to know that their actions were supported by case law and that the special prosecutor supports our policy.”

Elayne Rivers, a spokeswoman for Bailey’s attorneys Fatima Johnson and Swaray Conteh, said Bailey “is still recovering both mentally and physically from the attack.” Beyond that, she said, Bailey’s side had nothing to add, as of Tuesday, about the special prosecutor’s decision, the charges against Bailey or about potential civil litigation against the police department.

The special prosecutor’s decision comes with a hitch.

In March, the state filed for a new special prosecutor, after Hutchison left her role as deputy prosecuting attorney in Madison County, according to court records. Cummings was appointed the new special prosecutor in the LPD K9 case on March 8, according to court records.

On June 3, Tippecanoe Circuit Court Judge Sean Persin issued an order, calling the parties to a video conference to determine whether Hutchison had standing as special prosecutor. Persin wrote in court documents that Indiana law says that to be a special prosecutor, a person must be regularly employed as a full-time prosecutor, a deputy prosecutor or a senior prosecuting attorney. Persin also wrote that “it is unclear” whether Hutchison has the authority to act as special prosecutor after Rodney Cummings took over the role in March.

Persin set a June 22 status conference to determine those answers and whether Cummings agrees with Hutchison’s decision.

Cummings was out of his office in Anderson for a conference this week, according to his staff, and did not immediately respond to messages for comment.

THE SCENE: ‘IF YOU FIGHT, YOU’RE GOING TO GET DOG BIT’

The scene, depicted in body cam footage from the three officers, came with warnings about graphic content from all involved.

Flannelly on Tuesday called what happened to Bailey “kind of a freak accident,” caused by the way Bailey turned as the dog was released from the squad car as officers tried to detain someone they suspected was involved in a battery.

Note: In July 2020, LPD Chief Pat Flannelly released this response to the arrest of Richard Bailey Jr., along with police cam video. Warning: Contains graphic content.

In the videos, including one released by Flannelly after the J&C’s initial coverage, the officers approach Bailey, who matches a description from a 911 call made a few minutes before. Bailey is on a green-and-black moped when officers tell him to turn it off and get off. The footage shows Bailey asking, “Y’all want to fight me?” The officers say they don’t want to fight but that they want him off the moped.

“That’s fighting,” Bailey told officers.

As officers try to peel Bailey’s fingers off the moped’s handlebars, Saxton is heard in the footage telling him: “Hey, there’s a dog in that car. If you fight, you’re going to get dog bit.” An officer repeats the warning about getting bitten by a dog if Bailey resists.

In the video, Bailey and officers continue to struggle as Bailey is put on the ground, on his back.

Seconds later, Saxton opens his squad car’s door remotely, releasing Boyka, his dog: “Here. Here. Here. Right here.”

The police dog doesn’t go for Bailey’s arm or leg, instead aiming at the neck – a maneuver Flannelly said LPD never trains a K9 to do. The dog latches onto Bailey’s neck for roughly 30 seconds, until Saxton calls him off.

An ambulance arrives minutes later.

Flannelly said LPD asked for an independent review of its K9 policies, including when to deploy a dog during an attempted arrest. Flannelly said that was done by Vohne Liche Kennels, a K9 training facility in Denver, Indiana. On Tuesday, Flannelly declined to share the report, but he said the actions in this incident fit within LPD’s policies.

That hasn’t satisfied some, including calls from the Greater Lafayette chapter of the ACLU, which as called for a comprehensive review of how and when LPD officers deploy dogs.

At the time, state Rep. Chris Campbell, a West Lafayette Democrat whose district includes parts of Lafayette, called Bailey’s arrest an “apparent use of excessive force.” (“If that night had gone any worse, Richard Bailey Jr. could have been Lafayette's George Floyd, Breonna Taylor or one of the many who should still be with us today,” Campbell said after video footage surfaced.)

Bailey’s attorneys questioned whether race was a factor, claiming in 2020 interviews with the J&C and in a press release that officers would not have been as willing to deploy the K9 if Bailey hadn’t been Black. In a press release, his lawyers said LPD was “trying to justify almost killing a man, a man they could have just slapped handcuffs on while he was lying on the ground.”

“If the actions the Lafayette Police Department took on the evening of May 9 were according to policy, then the policy is clearly flawed,” Rivers wrote in the lawyers’ two-page release. “The only thing the Lafayette Police Department has made clear is that it is incapable of policing citizens, if not for anything else, because there is a disconnect between their policies and basic human decency.”

WHAT CAME BEFORE THE ARREST, MAULING

Bailey’s attorneys wondered how LPD could clear its officers and policies in the incident before getting Bailey’s side of what was happening that night.

Court documents, filed with Bailey’s charges, give more clues about what led to the confrontation with police.

According to witness accounts gathered by an ISP detective in May 2011, a year after the incident, Bailey was visiting a friend at the apartments and offered to carry a box of cleaning supplies his friend was lending to a neighbor. He wound up inside, where he and others spent time talking. Two of the three women in the apartment accused Bailey of making unwanted advances and asked him to leave. When he refused, according to the probable cause affidavit, one of the women “gave Mr. Bailey the option of the ‘easy way’ or the ‘hard way,’” before going to the kitchen and grabbing a knife.

According to the court documents, in a fight that ensued, Bailey hit one woman in the head with his motorcycle helmet and tossed her across a living room table. She wound up with a knot on her head a broken pinky finger that later required two surgeries, according to witness accounts. When the women summoned a neighbor to help, they said Bailey choked him after being told to leave, again. By this time, another woman in the apartment was on the phone after dialing 911, parts of which are heard in LPD’s release of video footage from that night.

The court documents report that Bailey had a blood-alcohol content of 0.21 percent. (The legal limit to drive is 0.08 percent.)

According to court documents, Conteh, one of Bailey’s attorneys, told the ISP detective that Bailey “would not be making a statement” to police about the incident.

Flannelly said he expected more criticism from parts of the community. But he said he was satisfied that the special prosecutor ruled out criminal charges against the officers.

“It's unfortunate in the Bailey case – which I've said this probably 100, if not 1000 times – that he was injured the way that he was,” Flannelly said. “But all of that could have been prevented. All he needed to do is comply. That just didn't happen. And that's what led to the use of force.”

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