CASE NUMBER:

DA-2011-1827

CITY OF BIRMINGHAM POLICE DEPARTMENT Plaintiff, VS. GREGORY S. EVERETT, Defendant.

DEPOSITION OF MICHAEL WEISS

I, MARGARET JOHNSON, am hereby delivering to Gayle H. Gear, the original transcript of the oral testimony taken on the 22nd day of June, 2011, along with exhibits, at the offices of Gayle H. Gear, 2229 Morris Avenue, Birmingham, Alabama. Please be advised that this is the same and not retained by the Court Reporter, nor filed.

I N D E X EXAMINATION BY: MRS. GEAR 4 MR. FLIEGEL MRS. GEAR 33 28 PAGE NUMBER:

EXHIBITS: 1 2 5 5

APPEARANCES: FOR THE PLAINTIFF: MICHAEL M. FLIEGEL CITY ATTORNEYS OFFICE BIRMINGHAM CITY HALL 710 20th Street North Birmingham, AL 35203

FOR THE DEFENDANT: GAYLE H. GEAR 2229 Morris Avenue Birmingham, AL 35203

ALSO PRESENT: A.C. ROPER GREGORY S. EVERETT VALINDA CHAPPELL

Whereupon, MICHAEL WEISS, being first duly sworn, was examined and testified as follows: DIRECT EXAMINATION BY MRS. GEAR: Q. Would you state your full name for the

record, please, sir? A. Q. A. Q. your home? A. Q. A. Q. No. How long have you lived in Alabama? Four years as of this week. So, the kind of employment, if youd Michael Weiss. And the spelling of your last name? W-E-I-S-S. Mr. Weiss, have you always made Alabama

just tell us what brought you here?

A.

I work for Budget Rent-A-Car.

Im

Operations Manager. Q. isnt it? A. Q. And that is what brings us here today, A car? Yes. Ive placed before you two documents. I believe you have a copy of a A car rental?

Let me make sure.

Notice of Determination for Officer Everett, and also a complaint form, and well work from those. (Whereupon, the above-referred documents were marked for identification as Exhibits 1 and 2.) Q. If you would please, sir, tell us your

job title with Budget Rent-A-Car. A. Q. Operations Manager. And as such, what does an Operations

Manager do? A. Q. A. Oversee everything in the operation. And where is your location? My office is at the airport, but I

oversee all the offices in Birmingham.

Q.

Were going to take you just right away

to the event that happened, and well represent to you that the event, the date is August 17. As we begin, youll see in the room Officer Everett, and you do know him? A. Q. Yes. And the last time you saw him -- I Ive told

mean, you recognize him here today. you his name is Everett. you saw him? A. Q. The date of this incident. The date of the incident.

When was the last time

So, you know

him in no other fashion than this incident? A. Q. No. Well, something happened that was at

least fairly eventful from Officer Everetts point of view, and I want to take you back to August 17, 2010. As we go through that, Im presenting to you something youre not familiar with. a Notice of Determination. Everett. Its

Hearing for Officer

Were you ever aware Officer Everett was brought up on charges for the event on August 17, 2010? A. Q. No. Were you ever contacted by anyone in

the Police Department regarding the events that transpired and that involved you, at least, on August 17, 2010? A. Q. A. Q. A. Q. No. No phone calls, no personal interviews? Nothing. No contact? No contact. I take it then, my office was the first

office to call you regarding this incident? A. Q. Correct. Well, lets just go to the incident. Im telling you Officer Everett was brought up on charges, and those charges have been handled. There also was a complaint that was filed against him, and it all stems from this

complaint, and thats the second page I gave you. Weve called that Exhibit 2, neither of which, though I take it, are anything that you have ever seen before? A. Q. Not until today. Never seen it before. Youre familiar

But youve met Cedric?

with a man named Cedric Lowe? A. Q. Lowe? Yes. Well, what did bring you to meet Cedric Just tell us how that incident started,

and Ill ask what happened next, what happened next. A. So, we rented a vehicle to a customer.

The customer was supposed to return the vehicle. I dont know the specific date, but I know that by August 17 the vehicle was past due. We were attempting to contact our customer to locate our vehicle. The customer

told us that the vehicle had been involved in an accident and there was damage to the vehicle, and that they had taken it to a body shop. After prodding the customer and trying

to figure out where they had taken it to, they werent quite sure. They knew a rough address.

I drove to the area where they were talking about and saw the car parked at this guys, Cedric Lowes body shop. Q. Let me stop you right there. Do you

know the name of the customer? A. Q. Sharon Alexander was her name. And you located the body shop. If

youd just describe that body shop to us and the approximate location. A. Its at the corner of Airport Highway A brick building with a couple

and 41st Street.

of bay doors on the backside, and a bunch of damaged vehicles parked in the lot. Q. A. People present in that location? This guy, Cedric, who I guess is the He had a couple of

owner of the shop was there. employees there.

There is a housing project adjacent to their parking lot. There were just people in the

yard of that complex.

Q. A. yes. Q. A. Q.

Within hearing distance? Oh, yes. Its right next door to it,

Within viewing distance? Yes. So, that whatever transpired on the

outside, at least, could be seen and heard by others? A. Q. A. Q. it. Yes. So, its a housing project? Yes. So, what prompted you -- you located What did you do next to locate the vehicle?

A.

The renter, Sharon Alexander, had given She thought it might be where

me a phone number. the car was.

She was very unsure of where the

car was, which was funny, but it turned out someone else had damaged the car and taken it there. Q. A. Thats why she didnt -The car? What kind of car? I believe it

Our vehicle is a Volvo.

was an S-40. Q. A. A new one? Oh, yes, brand new. All of our

vehicles are brand new. Q. A. So, it would be a 2010. Yes. So, I contacted Mr. Lowe by phone

to let him know that he had our vehicle, and that he didnt have the right to work on our vehicle without our permission, and that we would be coming to take our vehicle back. He didnt really like that. Q. Why do you say that? Thats a

conclusion youve reached, but how did you reach that conclusion? say it? A. He immediately got belligerent and What did he say and how did he

aggressive and was cursing and telling me that I wasnt getting my car. You know, that I was

going to have to pay him if I wanted my car, you know. I let him know that if that was the case, that I would come down there with the

police and we would handle things the proper way and get our car back. Q. So, you alerted him that if it did not

go peacefully, then the police would be with you? A. Right. I knew before I got there that

it was not going peacefully from the phone conversation, it was -- you know, this guy was yelling and screaming and cursing that he wanted money if we were going to get our car. Q. Now, when I use the term yelling,

screaming and cursing -- so youre a man that understands. A. Q. Youve heard curse words before.

Sure. And you know when someone raises the

register of their voice to the point its yelling. So, thats an accurate portrayal of how

his demeanor as hes speaking to you on the phone. you? A. Q. A. Yes. What did you do next, if anything? I drove about a block away and called He was yelling, screaming and cursing at

911. Q. A. You drove a block away and -Called 911. There is a gas station I called 911 and let them

thats a block away.

know of the situation and let them know that Id like to have an officer meet me at the location. Q. A. What happened next? I drove a block around the corner and

officers were there. Q. there? A. Officer Everett was there, and I Do you recall which officers were

believe there was either two or three other officers there. There was multiple officers there for sure. Q. Everett? Do you recall when you first saw Was he in his car? Was he outside?

What is your recollection? A. I dont specifically remember.

Q.

What happened next?

A.

When I arrived, the officers had not --

I think they were in their car because I went up to them and told them what was going on. I explained to them that this vehicle is on this guys property. Q. A. Q. A. Q. Its ours --

And you say you told them. The police officers. Do you recall which police officers? I believe it was Everett. And anyone other than Everett that you

could describe? A. location. Well, they were all at the same So, Im sure that they all heard what

I was speaking. Q. So, youve identified at least two, but

youre saying there was more than two there? A. There was multiple police cars, but I

dont remember specifically how many, or how many officers were in each car, but I know that there was multiple police officers there. Q. So, you now have at least told your

side of it to the police officers, and your side

of it was what? A. That my companys vehicle, which we

have rightful ownership of, was on their property, and he was refusing to give us the vehicle. He never had any consent from us to

have the vehicle or to do any work to our vehicle. Therefore, he had no right to continue to keep our vehicle. Q. When that conversation took place, do

you recall whether Mr. Lowe was present or within earshot of your conversation? A. Yes. There is a bay door to his -- ths Maybe

parking lot is no bigger than this room. 20 feet by 30 feet. He was within 15 feet

standing in front of his bay door. Q. And youve already told us in the bay

door you could personally see others you presume to be employees? A. Q. Yes. And you saw others presumed to be

residents of various housing units?

A. property. Q. A.

Yes.

They were on the adjacent

What happened next, if anything? Officer Everett went over and explained

to this guy, Mr. Lowe, that he had no right to hold our vehicle or ask us for money for the vehicle, and that he had to release the vehicle to us. Either Officer Everett or another one of the officers contacted Birmingham Towing, which is the tow company that the City uses to come pick up the vehicle because Mr. Lowe had completely disabled the vehicle so that nobody could drive it. He had taken away the whole front left axle, suspension, arm, everything which was may beyond necessary what the repair was to the vehicle. Q. even -A. Right. He had intentionally disabled So, that car couldnt be drive off

the vehicle so that if Budget Rent-A-Car figured

out where the car was, we couldnt come in the middle of the night and get the car, or come anytime and get the car. Q. So, you actually inspected the vehicle

at that point to see that it had to be towed? A. Absolutely. I mean, the whole front It was in parts, and some

left axle was missing.

parts were in the car and some parts were on the ground. Q. A. What happened next? The officer went over and explained to They

them that he had no right to keep the car. called Birmingham Towing. showed up. Birmingham Towing

We started to load the vehicle up

onto the tow truck. At that point I started looking through the vehicle. I wanted to make sure we had all

the parts, and I also wanted to make sure we had the keys to the vehicle. The keys were not in the vehicle. I

went back and told Officer Everett that I needed the keys to the vehicle, and that this guy that

owns the shop must have the keys and must be holding them. He approached him, and Mr. Lowe had the keys sitting -- tucked into his belt in plain view. Everybody could see that he had the keys.

He denied that he had the keys. Q. A. Q. You could see he had the keys? Absolutely. And when this went on, is this outside

or inside the building? A. Q. Outside. So, were still at this point outside

the building? A. Q. A. Right. Keys are tucked in his belt? Our keys come on a blue key chain

thats really easy to see like this, (indicating), and he basically had them tucked into his belt like that. had the key to our car. Officer Everett asked him multiple times for the key. The guy refused to give him You could see that he

the key, and Officer Everett reached to grab the key out of his belt, and Mr. Lowe then became defensive. Q. Physically defensive. Physically defensive. That is a

conclusion you reached.

What did you see that

led you to make that conclusion? A. I remember he pushed back. I dont

remember specifically what he said, but I remember him yelling at the officer to get off of him or something like that, and all he was doing was trying to get the keys out of his belt. Q. Everett? A. pushed. I dont remember specifically if he I remember I was standing there, and So, youre saying Lowe pushed Officer

being shocked a bit when he went to reach -- grab the keys the way that this reacted to a police officer was shocking to me. Q. A. Q. As a citizen? Yes. The guy has asked him for the keys Hes not giving them up, and now

multiple times.

when he reached for them, the guy became extremely defensive. Q. This time frame, did you see Officer

Everett, other than take the keys off his belt, did you see Officer Everett push or shove or take any physical action beyond getting the keys that were yours? A. Q. A. me. No. What happened next? Once he got the keys, he gave them to I then turned and walked away to give the

keys to the tow truck driver. At that point, I was no longer part of what was going on between Lowe and Everett. The next thing I saw was Everett bringing him out of the office or the bay door there in handcuffs to his car. Q. Are you saying that Lowe then went

inside the building? A. I didnt see any of it. Once I got the

keys, I went over to the tow truck -Q. You moved to another --

A. Q.

Yes. So, the next thing you saw was Everett

coming out of the building with Mr. Lowe -A. Q. In handcuffs. -- in handcuffs. Now, during the time

frame -- I just want to talk about the time frame when you were present outside where Everett was present and Lowe was present. Did you hear Everett use any curse words? A. Q. No. Is that something you as a citizen

would have remembered coming from a police officer? A. Yeah, absolutely. I deal with the

police on a pretty frequent basis because of the nature of our business, and would have been shocked had I heard something like that, and would have remembered it. Q. Now, youve come to some just judgments

just from your interaction with Mr. Lowe. A. Sure.

Q.

And you told us that in terms of

Officer Everett during that time frame outside the building when you were present with Lowe and Everett, did you see or hear Everett doing anything that caused you any concerns, as far as the behavior of a police officer? A. Q. No. The next time you see Everett and Lowe, At that point forward did

Lowe is in handcuffs.

you see Everett do anything or say anything to him that caused you any concern? A. Q. No. I know you do interviews probably, or

your people do on how well the interaction goes with Budget Rent-A-Car, but in terms of your interaction and the helpfulness of your police officers, how would you judge the helpfulness of the police in getting your car back? A. up. Extremely well. I mean, they showed It We

Asked for what we needed to have done. Tow truck showed up immediately.

happened.

got our car.

Q.

I want you to take a look at what

Cedric Lowe filed, and I believe weve marked that as Exhibit 1. Youve already established that you have not seen this, but I represent to you that this is a true and correct copy of the complaint that Cedric Lowe filed on or about the next day, the eighteenth, at 11:30. He said, The Complainant stated that Everett walked into the shop and said, I want them damn keys. You yourself never went into the shop? A. Did I go in the shop? No. I never

went into the shop. Q. hear that? A. Q. No. You, in fact, had been the one asking I want them damn keys. Did you ever

for the keys for the officers to obtain them? A. Q. Right. So, I want them damn keys, was not

stated outside the shop either?

A. Q.

I never heard it, right. Everett then put on his gloves, pushed

him three times and took the keys from his waistband. Is that accurate from your recollection? Pushed him three times and took the keys from his waistband? A. Q. A. No. Didnt happen, did it? No. He took the keys from the He didnt push him to get the

waistband, yes. keys.

He asked for them multiple times. wouldnt get them. Q. A. Q. them? A.

He

He reached over to grab them.

And got them? Yeah. And what did he do after he obtained Did he back away? Did he stay with -So, he had to

He gave me the keys.

back away because I wasnt standing right next to Mr. Lowe. I had kept some distance from this

gentleman. Q. A. Why? Well, every interaction I had with him, So, I

the guy was aggressive and belligerent.

had no reason to get anywhere near the guy. Q. There is also a statement made later

that outside the vehicle -- outside the residence kind of cursing that the officers -- this is another officer cursing. You never heard any of that while you were there? A. Q. car. A. No. The vehicle leaves with the wrecked When did you depart in reference to that? The tow truck left with our vehicle. I

went back over to the officers and asked them if there was any other information they needed from me. They told me they didnt need any other

information. I thanked them for helping me get my car, and I left. Q. At that point where was Mr. Lowe?

A. cars. Q.

In the back of one of the officers

And do you recall who you had this Was it Officer Everett? He was

conversation with? A.

I think I went over to Everett.

sitting in the front seat of his car.

I think

his partner was sitting in the passenger seat, and I just went over to both of them and asked if they needed anything else before I left. Q. In the entire time frame, the least you

had anytime to listen, you never heard any of our police officers using curse words? A. Q. Correct. Exhibit 2 for us is really the charge I represent to you he

against Officer Everett.

is found guilty of this, and that is what happened. He was found guilty by Internal

Affairs Unit within the Police Department, and I just want you to tell me -- I just have a couple of sentences -- if this is accurate or not because you were there. A. Right.

Q. business.

On August 17, 2010, you went inside the Now, we can establish there is inside

this building, which appeared to be what kind of building to you? A pretty substantial business? A. I mean, its a brick building thats Not very large. Has, I think

pretty unassuming.

it had two bay doors.

I dont even think there

was a sign for the business. Q. So, outside there was a bit of a lot

where some cars that looked like they were in need of repair? A. Q. A. Uh-huh (Affirmative). And your car was positioned where? I mean, there was maybe four or five Ours was on the west edge

cars out on the lot.

of the lot up against 41st Street. Q. This said you, meaning Officer Everett,

went inside the business and stated to Mr. Lowe, the owner, I want them damn keys. In addition you pushed Mr. Lowe three times grabbing the keys from his waistband and

gave them to the representative of Budget Rental Car. Is that a true statement or not because you were there? A. The getting the keys from his waistband The pushing and I

giving them to me is true.

yelling, I want them damn keys, is untrue. never witnessed anything like that. Q. A. Q. retrieved? A. Q. Yes. And you were there? Yeah, I was standing right there. You were there for the keys being

I also direct you to the last paragraph.

It is alleged and found to be true by Internal Affairs and others that Officer Everett made false statements on the arrest report indicating that Mr. Lowe took an aggressive stance with legs apart, body bent forward and fists clenched, and he used profanity which was not an accurate statement. Sir, I ask you if, in fact, Officer

Everett said that, that Mr. Lowe had an aggressive stance with legs apart, body bent forward, fists clenched, and he used profanity, is that your recollection of what happened that day? A. Yeah. I mean, thats a very accurate

description of -Q. A. Q. Of Mr. Lowe? Mr. Lowe, yeah. So, had you been contacted by anyone in

Internal Affairs, would you have been able to help them get a clearer picture of what happened out there that day? A. Q. Yes. I do appreciate the fact that youve

come here today, and let me tell you, we have a very fine police department. We have a very fine

chief, and not many chiefs have time -- youve got enough to do than come here. A. Our police department does a lot to

help our business. Q. The Chief needs to hear that.

MR. FLIEGEL:

Gayle, for the purpose of

this, were going to stipulate that his testimony here today can be used in lieu of his live testimony. So, we will use his deposition. MRS. GEAR: MR. FLIEGEL: him to come back. This is very kind of you. There is no reason for

Hes testified right here in

front of a court reporter. I may have a few questions when you finish. I will stipulate that this can be used in place of him having to appear at trial. MRS. GEAR: you go right ahead. CROSS EXAMINATION BY MR. FLIEGEL: Q. Just to be clear, you were not contacted Thats all we have. So,

by anybody from the Birmingham Police Department relating to this incident? A. Q. Correct. When you made a call, they responded to The

your call and showed up in a timely manner.

records show everything -A. Q. Yes. Are you familiar with the criminal

statute involved as far as recovery of a rental vehicle? that? A. Q. Yes. Did you have any documents with you Are you familiar with the state law on

relating to the ownership of the vehicle so the officers could see that it was, in fact, your vehicle? A. Yes. Before I left the office, I made a

photocopy of the registration. Q. And you had documented everything you

were supposed to so that they could see that these people had had notice, and they were at least in your opinion illegally holding the vehicle? A. Right. Maybe not illegally. Just they

had no right to hold it. got to -Q.

If I ask for it, they

The people who had the vehicle that you

recovered it from, they were the body shop.

They

were not the person who rented the vehicle from you at all? A. Correct. When I first contacted Mr.

Lowe, I said, Look, this is unfortunate that these people brought you this car, and you are expecting to get paid for it; but you have no right to work on it. You havent received, you

know, anything from the owner of the vehicle saying you can work on this car, and as the owner of the vehicle, we would like our car. Q. If a vehicle of yours was damaged by a

person who had a lease on it, who normally would repair your vehicles? A. Q. A. Do you have a contract --

We have our own body shops. So, Budget repairs its own vehicles? Right. Our contract stipulates that if

a customer damages it, they have to notify us within 24 hours, and they are not allowed to -Q. A. Q. And this did not take place, right? Correct. You dont know exactly what the date of

the accident was that had the vehicle in the body shop? A. Q. A. Q. Right. I dont know --

Because it was not reported? Right. In a typical rental of an S-40, how

long were they supposed to keep the vehicle? A. I mean, any rental can range from a few I would have to go back and

hours to a month. look. Q.

What caused your concern about getting

the vehicle back from the lessor in the first place; the person who got the vehicle? A. They were due back on -- I forget which

date it was off the top of my head. They were due back, lets say for example, on the fifteenth, and this was the seventeenth, and we still didnt have our car back. Q. So, several days after you anticipated

the vehicle to return, it still had not been returned, and you had not received any contact from the person who rented the vehicle from you?

A. Q.

Correct. So, you-all initiated contact with

them, and they started giving you a story saying it had been wrecked, and they couldnt -- it took them a while to figure out where they left the vehicle? A. Q. Right. Again, I want to make sure. You were

not privy to any conversation between Officer Everett and Mr. Lowe outside of your presence? I mean, if they went back in the office, how long were they back there before you again saw Officer Everett bringing Mr. Lowe out in handcuffs? A. Q. I minute maybe or less. It was brief.

But I think and I want to make sure

that I got this right. Q. I believe you say you heard no curse

words coming out of Officer Everett during the time period. First of all, in your presence he didnt curse?

A. Q.

Correct. And even outside your presence, were yo

able to hear anything conversation that was going on in that building? A. No. I walked away from the front of the

building there. Q. But they were only inside the building

roughly one minute? A. Yeah I mean, it was very brief. From

my observation as soon as he got the keys back from this guy, this guy became very defensive and continued to be belligerent, and I guess my assumption is thats why he arrested him. Q. A. Q. But thats your assumption? Right. Youre not certain. Again, we dont

really know right this minute what happened inside that building that led him to him coming out in handcuffs? A. Correct. MR. FLIEGEL: else. I dont have anything

REDIRECT EXAMINATION BY MRS. GEAR: Q. Did you hear this officer tell him he

was under arrest? A. him. MRS. GEAR: Thats all we have. I didnt. I didnt witness him arrest

STATE OF ALABAMA COUNTY OF JEFFERSON I hereby certify that the above proceedings were taken down by me and transcribed by me using computer-aided transcription, and that the above is a true and correct transcript of said proceedings taken down by me and transcribed by me.

I further certify that I am neither of kin, nor of counsel to any of the parties, nor in any way financially interested in the outcome of this case. I further certify that I am duly licensed by the Alabama Board of Court Reporting as a Certified Court Reporter as evidenced by the ACCR number following my name found below. So certified on this, the 27th day of June, 2011. __________________________ Margaret Johnson, ACCR# 488 Court Reporter