It cost Modesto more than $400,000 to settle a lawsuit that alleges its officers falsely arrested a man who had criticized the Police Department, including posting photos and videos of his encounters with them on social media.

The city paid $115,000 to settle the lawsuit, $315,828 in legal fees defending itself and $1,983 in additional costs, bringing its total cost to $432,811.

Modesto resident Adorthus Cherry sued the city and police Sgt. Derrick Tyler in federal court in Fresno in September 2018. The lawsuit was dismissed in August after the parties reached a settlement. The city denied all of Cherry’s allegations against it and its officers in resolving the lawsuit, according to the settlement agreement.

“We would have entertained an earlier settlement for less than the $400,000-plus that the city spent,” said Ben Rosenfeld, one of the attorneys who represented Cherry. “It ill serves the taxpayers to fight indefensible cases to the hilt, and it sends the wrong message to rogue police officers.”

Cherry also was represented by attorney Randy Daar.

The city did not respond by The Bee’s deadline to Rosenfeld’s comment.

Cherry, 50, no longer lives in Stanislaus County. And Tyler retired in May after nearly 25 years with the Police Department. Cherry did not respond to two phone messages and a text message seeking comment. Tyler declined to comment.

The lawsuit stems from an incident between the two men at a Nov. 4, 2016, football game in Oakdale between Oakdale and Modesto’s Central Catholic high schools. Cherry’s oldest son was a star player for Oakdale, and Tyler was a volunteer coach with Central Catholic. Tyler was off duty.

Cherry — a former professional bodybuilder — and Tyler knew each other.

Tyler claims Cherry threatened him after Tyler approached him at halftime by saying, “I’m going to get you. I’m going to see you around,” according to court records. Cherry denies saying that or threatening Tyler. The encounter lead to Cherry’s arrest the next day after Tyler reported the incident to his captain.

Cherry eventually was charged with obstructing or resisting a police officer, intimidation of a witness or victim, threatening a witness or victim and making criinal threats, according to court records associated with this lawsuit.

The judge dismissed the first three charges but determined after a hearing there was sufficient evidence to try Cherry on the criminal threats charge. But prosecutors dismissed the charge the day before Cherry was set to go to trial. The judge also issued a temporary restraining order against Cherry, requiring him to stay away from Tyler.

‘PUNKS AND COWARDS’

Tyler and Cherry agree that Cherry accused Tyler of setting him up and called Tyler and other officers “f------ punks and cowards” at halftime, according to court records.

Cherry was referring to his arrest a few months earlier at the Modesto Police Department. He was standing outside the department on June 9, 2016, taking video with his cell phone when a sergeant approached him and repeatedly asked Cherry whether he could help him.

That eventually lead to a probation search of Cherry, his car and his home and his arrest after officers found more than 50 marijuana plants in his home. Cherry’s lawsuit states he was on informal probation for misdemeanor marijuana possession.

Over radio, Tyler heard about what was taking place. He decided to take part to lessen any confrontation. Cherry “blamed defendant Tyler for not intervening in his arrest, believing (Tyler) only talked to him outside the police station to provide the other officers time to realize (Cherry) was on probation,” according to court records.

Cherry was charged in July 2016 with cultivation of marijuana and possession of marijuana for sale. The Stanislaus County District Attorney’s Office has said the case was dismissed a year later at the request of prosecutors because of insufficient evidence.

The lawsuit states Cherry presented evidence “that he and his wife, both lawful medical marijuana patients, were authorized to possess and cultivate all the marijuana that was seized from their home.”

Cherry posted on Central Catholic’s Facebook page in August 2016 that its football team “employs a racist BLACK POLICE OFFICER as a coach! Horrible!!!See you in 10 wks!,” according to court records. Both Cherry and Tyler are Black.

The 10 weeks referred to the Oakdale-Central Catholic game in November. Court records state Cherry made the post after Cherry and his family were stopped at an intersection in Modesto and Tyler pulled up in his police vehicle. Tyler spoke to Cherry’s son, and Cherry responded with: “Don’t f------ talk to my son, you are not friends with my family,” according to court records.

Cherry’s lawsuit alleges he was harassed by police because of his criticism of them.

BULLETINS TO OFFICERS

For instance, the lawsuit states the department posted or issued at least three of what are called criminal information bulletins to officers. The lawsuit states the bulletins read “like a blueprint on how to set up Mr. Cherry for false arrest, by misconstruing his First Amendment protected criticism as threatening ... ,” according the lawsuit.

The lawsuit cites one bulletin:

“Mr. Cherry is a former professional bodybuilder with arrests for cultivation of marijuana and (possession/sales) of steroids. Mr. Cherry has possessed firearms in his home and vehicle in the past. He and his wife ... are mostly uncooperative with law enforcement and Cherry often videos officers with his telephone and/or from cameras outside his home.

“During his contacts with officers he attempts to bait officers with his demeanor into unwarranted uses of force or inappropriate arrests. He often posts videos or photographs of interactions with officers on the internet. Mr. Cherry is the subject of several restraining orders and appears to enjoy controversy and conflict with others ... . His statements generally have not met the elements of terrorist threats, though his demeanor can be threatening. ...”

Stanislaus County Superior Court records show four restraining orders were issued against Cherry from 2014 to 2016. In a court petition for one, a neighbor alleges Cherry yelled at and threatened her and her children over several months and videotaped her property.’’

The other three restraining orders involved family members.

This story was originally published October 12, 2022 6:00 AM.