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Woman sues Hillsborough Sheriff's Office over autistic son's broken arm

Betty Ann Niebch, here with son Dorian, is suing the Hillsborough Sheriff’s Office.

ATOYIA DEANS | Times

Betty Ann Niebch, here with son Dorian, is suing the Hillsborough Sheriff’s Office.

TAMPA — On a summer evening in 2006, Betty Ann Niebch entered a Sports Authority store on Fowler Avenue with her son Dorian, then 16, looking for a swim board. She left with a criminal charge of battery on a law enforcement officer. Her son left with a broken arm.

What happened that night, July 26, 2006, is the basis for a lawsuit the mother recently filed against the Hillsborough County Sheriff's Office.

"I don't like lawsuits. I think they're very ugly," Niebch said. "But whether anything comes out of this, at least I did it. I did it for my son."

Nearly four years later, Niebch believes her son is owed an apology, if not more.

Dorian Niebch has autism.

At 16, the tall and muscular kid wanted to compete in the Special Olympics as a swimmer. He had been practicing in swim classes. That's why they went shopping for a swim board that night. At some point, the two became separated in the store. Dorian wandered, greeting and shaking hands with store patrons.

Deputy Paul Fitts could not have known any of that when he was called after a report that a man had approached a little girl in the store and was acting strangely. When he arrived, he saw Dorian.

Fitts asked Dorian to talk. Dorian ran and the deputy chased him.

When Fitts caught up, he struggled with Dorian, using a technique known as a "leg sweep" to put the teen on the ground, according to a sheriff's report. Dorian screamed as he fought back. Hearing the commotion, the boy's mother appeared.

"What are you doing to my son?" she recalls shouting. "He's autistic. You're hurting him."

Amid the struggle, Niebch swung her handbag, striking the deputy. A store security officer then subdued her.

"I lost my patience because he told me to wait and he was laying on top of my son," Niebch said. "No parent can see that and not do anything."

Dorian complained to the deputy that his arm was broken, but a sheriff's report notes that when asked to point to where the pain was, Dorian was inconsistent, pointing to his wrist, then his forearm, then his upper arm, then his shoulder.

Later, hospital X-rays revealed that his left upper arm had indeed been broken in the scuffle. He could not compete in the Special Olympics.

When Fitts learned of Dorian's disability, he decided not to arrest him. He released him to his mother and issued her a citation charging her with battery on a law enforcement officer.

Thea Clark, an attorney for the Sheriff's Office, said that the deputy showed leniency toward the Niebches by not charging Dorian and not taking his mother to jail.

"We certainly believe the actions taken by the deputy were 100 percent justified," Clark said. "The deputy realized that the son had a disability and was lenient. This is the thanks we get."

Fitts has since left the Sheriff's Office to pursue other career opportunities, according to sheriff's spokeswoman Debbie Carter. He could not be reached for comment.

In court, Niebch was offered pretrial intervention to avoid going to trial on the charge, court records say.

She rejected that because she wanted to defend herself from the charge, she said. She was tried and convicted and served 18 months' probation and completed 25 hours of community service. She was also banned from the Sports Authority and ordered to write an apology letter to Fitts.

In December, Florida's Office of Executive Clemency issued Niebch a certificate of restoration of her civil rights — an action that occurs automatically for those who have completed sentences for less serious crimes.

But what happened to her son is what draws her outrage more than her own conviction.

"He's been traumatized," she said. "His arm is still deformed. He can't swim straight laps anymore. He has shrunk. He has lost weight. Every single day he wants me to rub his arm."

Dorian himself is still cognizant of the incident. When his mother discusses it, he points to his left arm.

"Broken arm?" he inquires.

His mother consulted with several lawyers but was unable to find one who would take the case, she said. She chose to sue on her own. Her lawsuit seeks $50,000 in damages, a figure that represents her best guess at the extent of Dorian's suffering, she said.

An apology would mean even more than money, she said.

"It's not about money," she said. "It's about principle."

Clark said the fact that Niebch filed the case herself suggests that lawyers would not take it because it is weak.

"What's surprising to me, when you consider how many people are arrested in our county, we have very few use-of-force lawsuits," Clark said. "Certainly you can understand that when any kind of force is used, even where you take someone to the ground, there can be injuries. People get hurt when force is used.

"Do people get injured? Do our deputies get injured? Sure they do," Clark said. "In this case, you have a person who is not a small child being very noncompliant with the deputies. Had the mother been more attentive with her son, this probably wouldn't have happened."

The only thing Niebch regrets is going out that night to buy the swim board.

"I think I've done a pretty good job," she said. "But it's a hard job, protecting your kids."

Times researcher John Martin contributed to this report. Dan Sullivan can be reached at dsullivan@sptimes.com or (813) 226-3321.

Attorney Thea Clark's name was spelled incorrectly in an earlier version of this story.

Woman sues Hillsborough Sheriff's Office over autistic son's broken arm 03/14/10 [Last modified: Monday, March 15, 2010 11:26am]
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