A Fairhope woman, who made news in 2012 after she defecated in a police car, is waiting to hear if her lawsuit against the city will move forward in federal court.
U.S. District Judge William Steele should soon decide on two motions for summary judgment in the case Tina Diane Windham brought against the city of Fairhope and two Fairhope police officers.
According to the complaint, Windham filed suit early last year seeking monetary damages for alleged civil rights and state law violations by the police department. Last month both sides filed motions for summary judgment and are currently awaiting a ruling.
Windham, who is representing herself in the matter, said she hopes to hear a ruling on probable cause and excessive force related to a count of false imprisonment, while the defendants are hoping for dismissal of the suit.
The suit stems from a 2012 encounter between Windham, 51, and two Fairhope police officers, Trent Scott and Damian Rehorn, which resulted in Windham’s arrest.
The complaint states that on Jan. 12, 2012 Windham was in her front yard on Section Street when a white truck pulled up and the driver indicated he had run out of gas. Windham offered to give the stranded motorist gas from a gas can. According to the compliant, Frank Kostyra, a neighbor with whom Windham had a strained relationship, called the police reporting that Windham was in the street, blocking traffic and cursing. When the officers arrived, a confrontation ensued with Windham, according to the complaint.
Windham said the police officers used excessive force when attempting to take her into custody for disorderly conduct and assault on the police officers. The officers’ actions, she said, aggravated a previous injury for which she is seeking damages.
Windham said once she was in the car the officers wouldn’t let her use the bathroom and made her sit in the car for 10 minutes with what she described as “severe diarrhea” caused by the altercation.
“That’s a long time to sit there when you have to go to the bathroom,” she said. “I couldn’t help but to go to the bathroom in the car.”
Windham twice defecated in the vehicle, which led police to bring criminal mischief charges against her, which are still pending. In media reports from that time, the FPD stated that Windham smeared the fecal matter on the backseat and back windows and tried to force it through the prisoner transport cage toward the officers in the front of the car, but Windham disagrees.
“I know what they reported and that’s what upset me,” she said. “I didn’t destroy their car.”
While Windham said she was only upholding her right to refuse an unlawful arrest during the initial confrontation with police, Tom Ollinger, an attorney and friend of Frank and Anita Kostyra, sees things a bit differently. Ollinger said video evidence from the police car’s in-dash camera shows Windham “hollering and screaming” at the officers.
“I’ve looked at the tapes,” he said. “It’s bizarre.”
Ollinger’s son-in-law Erick Bussey is handling the defense of the Kostyras in a suit brought by Windham in Baldwin County. A similar suit alleging invasion of privacy against the Kostyras was dismissed, Ollinger said.
“That lawsuit was, in essence, the same allegations she sued them for in federal court,” he said. “They were all dismissed.”
Bussey did not return a call seeking comment.
D. Kirby Howard, an attorney representing the city of Fairhope in the suit, declined to comment on the case because the competing motions for summary judgment are currently pending.
Steele previously dismissed Windham’s claims for punitive damages against the city. He also dismissed the invasion of privacy claims against former police Chief Bill Press, related to the release of information about the arrest.
Windham said she was forced to move out of her home in Fairhope as a result of the criminal charges that are still pending. She currently lives across the bay from her former home.
“I feel like I’m in hiding in Mobile,” she said. “I had a lovely home (in Fairhope) that I had to leave.”
Windham said she would be able to move back to Fairhope once the criminal case is resolved, but she won’t.
“I just want to get this whole thing behind me,” she said.
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