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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: PAGE NUMBER:
MRS. GEAR 4
MR. FLIEGEL 28
MRS. GEAR 33
EXHIBITS:
1 5
2 5
APPEARANCES:
FOR THE PLAINTIFF:
MICHAEL M. FLIEGEL
CITY ATTORNEY’S 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. ROPERGREGORY S. EVERETTVALINDA 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. Michael Weiss.
Q. And the spelling of your last name?
A. W-E-I-S-S.
Q. Mr. Weiss, have you always made Alabama
your home?
A. No.
Q. How long have you lived in Alabama?
A. Four years as of this week.
Q. So, the kind of employment, if you’d
just tell us what brought you here?
A. I work for Budget Rent-A-Car. I’m
Operations Manager.
Q. And that is what brings us here today,
isn’t it? A car? A car rental?
A. Yes.
Q. I’ve placed before you two documents.
Let me make sure. I believe you have a copy of a
Notice of Determination for Officer Everett, and
also a complaint form, and we’ll 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. Operations Manager.
Q. And as such, what does an Operations
Manager do?
A. Oversee everything in the operation.
Q. And where is your location?
A. My office is at the airport, but I
oversee all the offices in Birmingham.
Q. We’re going to take you just right away
to the event that happened, and we’ll represent
to you that the event, the date is August 17.
As we begin, you’ll see in the room
Officer Everett, and you do know him?
A. Yes.
Q. And the last time you saw him -- I
mean, you recognize him here today. I’ve told
you his name is Everett. When was the last time
you saw him?
A. The date of this incident.
Q. The date of the incident. So, you know
him in no other fashion than this incident?
A. No.
Q. Well, something happened that was at
least fairly eventful from Officer Everett’s
point of view, and I want to take you back to
August 17, 2010.
As we go through that, I’m presenting
to you something you’re not familiar with. It’s
a Notice of Determination. Hearing for Officer
Everett.
Were you ever aware Officer Everett was
brought up on charges for the event on August 17,
2010?
A. No.
Q. 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. No.
Q. No phone calls, no personal interviews?
A. Nothing.
Q. No contact?
A. No contact.
Q. I take it then, my office was the first
office to call you regarding this incident?
A. Correct.
Q. Well, let’s just go to the incident.
I’m 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 that’s the second page I gave you.
We’ve called that Exhibit 2, neither of
which, though I take it, are anything that you
have ever seen before?
A. Not until today. Never seen it before.
Q. But you’ve met Cedric? You’re familiar
with a man named Cedric Lowe?
A. Yes.
Q. Well, what did bring you to meet Cedric
Lowe? Just tell us how that incident started,
and I’ll 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 don’t 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
weren’t quite sure. They knew a rough address.
I drove to the area where they were
talking about and saw the car parked at this
guy’s, Cedric Lowe’s body shop.
Q. Let me stop you right there. Do you
know the name of the customer?
A. Sharon Alexander was her name.
Q. And you located the body shop. If
you’d just describe that body shop to us and the
approximate location.
A. It’s at the corner of Airport Highway
and 41st Street. A brick building with a couple
of bay doors on the backside, and a bunch of
damaged vehicles parked in the lot.
Q. People present in that location?
A. This guy, Cedric, who I guess is the
owner of the shop was there. He had a couple of
employees there.
There is a housing project adjacent to
their parking lot. There were just people in the
yard of that complex.
Q. Within hearing distance?
A. Oh, yes. It’s right next door to it,
yes.
Q. Within viewing distance?
A. Yes.
Q. So, that whatever transpired on the
outside, at least, could be seen and heard by
others?
A. Yes.
Q. So, it’s a housing project?
A. Yes.
Q. So, what prompted you -- you located
it. What did you do next to locate the vehicle?
A. The renter, Sharon Alexander, had given
me a phone number. She thought it might be where
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. That’s why she didn’t --
Q. The car? What kind of car?
A. Our vehicle is a Volvo. I believe it
was an S-40.
Q. A new one?
A. Oh, yes, brand new. All of our
vehicles are brand new.
Q. So, it would be a 2010.
A. Yes. So, I contacted Mr. Lowe by phone
to let him know that he had our vehicle, and that
he didn’t have the right to work on our vehicle
without our permission, and that we would be
coming to take our vehicle back.
He didn’t really like that.
Q. Why do you say that? That’s a
conclusion you’ve reached, but how did you reach
that conclusion? What did he say and how did he
say it?
A. He immediately got belligerent and
aggressive and was cursing and telling me that I
wasn’t 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 you’re a man that
understands. You‘ve heard curse words before.
A. Sure.
Q. And you know when someone raises the
register of their voice to the point it’s
yelling. So, that’s an accurate portrayal of how
his demeanor as he’s speaking to you on the
phone. He was yelling, screaming and cursing at
you?
A. Yes.
Q. What did you do next, if anything?
A. I drove about a block away and called
911.
Q. You drove a block away and --
A. Called 911. There is a gas station
that’s a block away. I called 911 and let them
know of the situation and let them know that I’d
like to have an officer meet me at the location.
Q. What happened next?
A. I drove a block around the corner and
officers were there.
Q. Do you recall which officers were
there?
A. Officer Everett was there, and I
believe there was either two or three other
officers there.
There was multiple officers there for
sure.
Q. Do you recall when you first saw
Everett? Was he in his car? Was he outside?
What is your recollection?
A. I don’t 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 guy’s property. It’s ours --
Q. And you say you told them.
A. The police officers.
Q. Do you recall which police officers?
A. I believe it was Everett.
Q. And anyone other than Everett that you
could describe?
A. Well, they were all at the same
location. So, I’m sure that they all heard what
I was speaking.
Q. So, you’ve identified at least two, but
you’re saying there was more than two there?
A. There was multiple police cars, but I
don’t 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 company’s 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
parking lot is no bigger than this room. Maybe
20 feet by 30 feet. He was within 15 feet
standing in front of his bay door.
Q. And you’ve already told us in the bay
door you could personally see others you presume
to be employees?
A. Yes.
Q. And you saw others presumed to be
residents of various housing units?
A. Yes. They were on the adjacent
property.
Q. What happened next, if anything?
A. 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. So, that car couldn’t be drive off
even --
A. Right. He had intentionally disabled
the vehicle so that if Budget Rent-A-Car figured
out where the car was, we couldn’t 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
left axle was missing. It was in parts, and some
parts were in the car and some parts were on the
ground.
Q. What happened next?
A. The officer went over and explained to
them that he had no right to keep the car. They
called Birmingham Towing. Birmingham Towing
showed up. 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. You could see he had the keys?
A. Absolutely.
Q. And when this went on, is this outside
or inside the building?
A. Outside.
Q. So, we’re still at this point outside
the building?
A. Right.
Q. Keys are tucked in his belt?
A. Our keys come on a blue key chain
that’s really easy to see like this,
(indicating), and he basically had them tucked
into his belt like that. You could see that he
had the key to our car.
Officer Everett asked him multiple
times for the key. The guy refused to give him
the key, and Officer Everett reached to grab the
key out of his belt, and Mr. Lowe then became
defensive. Physically defensive.
Q. 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 don’t
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. So, you’re saying Lowe pushed Officer
Everett?
A. I don’t remember specifically if he
pushed. I remember I was standing there, and
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. As a citizen?
A. Yes.
Q. The guy has asked him for the keys
multiple times. He’s not giving them up, and now
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. No.
Q. What happened next?
A. Once he got the keys, he gave them to
me. 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 didn’t see any of it. Once I got the
keys, I went over to the tow truck --
Q. You moved to another --
A. Yes.
Q. So, the next thing you saw was Everett
coming out of the building with Mr. Lowe --
A. In handcuffs.
Q. -- 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. No.
Q. 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, you’ve 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. No.
Q. The next time you see Everett and Lowe,
Lowe is in handcuffs. At that point forward did
you see Everett do anything or say anything to
him that caused you any concern?
A. No.
Q. 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. Extremely well. I mean, they showed
up. Asked for what we needed to have done. It
happened. Tow truck showed up immediately. We
got our car.
Q. I want you to take a look at what
Cedric Lowe filed, and I believe we’ve marked
that as Exhibit 1.
You’ve 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. “I want them damn keys.” Did you ever
hear that?
A. No.
Q. You, in fact, had been the one asking
for the keys for the officers to obtain them?
A. Right.
Q. So, “I want them damn keys,” was not
stated outside the shop either?
A. I never heard it, right.
Q. 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. No.
Q. Didn’t happen, did it?
A. No. He took the keys from the
waistband, yes. He didn’t push him to get the
keys.
He asked for them multiple times. He
wouldn’t get them. He reached over to grab them.
Q. And got them?
A. Yeah.
Q. And what did he do after he obtained
them? Did he back away? Did he stay with --
A. He gave me the keys. So, he had to
back away because I wasn’t standing right next to
Mr. Lowe. I had kept some distance from this
gentleman.
Q. Why?
A. Well, every interaction I had with him,
the guy was aggressive and belligerent. So, I
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. No.
Q. The vehicle leaves with the wrecked
car. When did you depart in reference to that?
A. 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 didn’t 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. In the back of one of the officer’s
cars.
Q. And do you recall who you had this
conversation with? Was it Officer Everett?
A. I think I went over to Everett. He was
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. Correct.
Q. Exhibit 2 for us is really the charge
against Officer Everett. I represent to you he
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. On August 17, 2010, you went inside the
business. 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, it’s a brick building that’s
pretty unassuming. Not very large. Has, I think
it had two bay doors. I don’t 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. Uh-huh (Affirmative).
Q. And your car was positioned where?
A. I mean, there was maybe four or five
cars out on the lot. Ours was on the west edge
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
giving them to me is true. The pushing and
yelling, “I want them damn keys”, is untrue. I
never witnessed anything like that.
Q. And you were there?
A. Yeah, I was standing right there.
Q. You were there for the keys being
retrieved?
A. Yes.
Q. 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, that’s a very accurate
description of --
Q. Of Mr. Lowe?
A. Mr. Lowe, yeah.
Q. 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. Yes.
Q. I do appreciate the fact that you’ve
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 -- you’ve
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, we’re 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: This is very kind of you.
MR. FLIEGEL: There is no reason for
him to come back. He’s 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: That’s all we have. So,
you go right ahead.
CROSS EXAMINATION BY MR. FLIEGEL:
Q. Just to be clear, you were not contacted
by anybody from the Birmingham Police Department
relating to this incident?
A. Correct.
Q. When you made a call, they responded to
your call and showed up in a timely manner. The
records show everything --
A. Yes.
Q. Are you familiar with the criminal
statute involved as far as recovery of a rental
vehicle? Are you familiar with the state law on
that?
A. Yes.
Q. Did you have any documents with you
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. If I ask for it, they
got to --
Q. 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 haven’t 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? Do you have a contract --
A. We have our own body shops.
Q. So, Budget repairs its own vehicles?
A. 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. And this did not take place, right?
A. Correct.
Q. You don’t know exactly what the date of
the accident was that had the vehicle in the body
shop?
A. Right. I don’t know --
Q. Because it was not reported?
A. Right.
Q. 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
hours to a month. I would have to go back and
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 didn’t
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. Correct.
Q. So, you-all initiated contact with
them, and they started giving you a story saying
it had been wrecked, and they couldn’t -- it took
them a while to figure out where they left the
vehicle?
A. Right.
Q. 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. I minute maybe or less. It was brief.
Q. 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
didn’t curse?
A. Correct.
Q. 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 that’s why he arrested him.
Q. But that’s your assumption?
A. Right.
Q. You’re not certain. Again, we don’t
really know right this minute what happened
inside that building that led him to him coming
out in handcuffs?
A. Correct.
MR. FLIEGEL: I don’t have anything
else.
REDIRECT EXAMINATION BY MRS. GEAR:
Q. Did you hear this officer tell him he
was under arrest?
A. I didn’t. I didn’t witness him arrest
him.
MRS. GEAR: That’s all we have.
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
