A Penn State Altoona student who said he had neither drank nor attended the party broken up by police at a Nittany Pointe Apartment parking lot Saturday was arrested on his apartment porch for not complying with a blanket order for all Nittany Pointe residents to go inside their apartments after several bottles were thrown at police in the parking lot.
Video footage shows force was used on Kevin Nelson, 19, while he was seated on his porch with a guitar in his lap. His arrest was the last of 12 on the afternoon.
Nelson's parents refused to allow the Mirror to post video of the arrest on its website.
Because Nelson did not go inside his apartment from his porch when riot protocol was enacted by police, Nelson was taken into custody and charged with riot - a felony - failure of disorderly persons to disperse, disorderly conduct, aggravated assault, recklessly endangering another person and resisting arrest.
Logan Township Police Chief Ron Heller said it is lawful for police to order people to go inside their residence from their porch if they declare a riot.
"If we have a riot, yes we can," he said.
Logan Township Officer Chris Bender, who had enacted the riot protocol after being the target of four thrown alcohol bottles, allegedly told Nelson and his friends to go inside their apartment because of the riot situation.
When Nelson didn't move, Bender initiated a series of maneuvers to force Nelson over the railing and on to the lawn.
Police documents state Nelson was using profane language and was defiant when police demanded he go inside his apartment.
The video, taken by one of Nelson's friends, shows Nelson apparently unable to stand when an officer arrested him by reaching over Nelson's first-floor apartment porch railing to put him in a chokehold as he sat on his porch with a guitar in his lap.
"He's choking him!" an onlooker screamed. "Get the hell off him!"
Except for Nelson's screams and profanity, shouted as Bender transitioned from a chokehold to an arm and wrist lock by pulling one of Nelson's arms through the rungs of the railing and bending it, Nelson appeared confused and addressed the officer at one point.
"I pay rent to live here, sir," Nelson said. "Let go. I haven't done anything."
Despite Nelson crying out "Why? Why?" Bender didn't say why he was being arrested. He told Nelson to stand up, but the freshman engineering student from Vermont appeared unable to get up. Police documents state Nelson was resisting arrest by attempting to drop his body to the floor.
Two other officers stood and watched as Bender arrested Nelson.
"The look on [the officers'] faces said, 'this is really [messed] up,'" said Andy Min, who can be heard calling his father, an attorney, as another friend recorded the arrest with his iPhone. While the party was happening in the parking lot, Min and several others said they had not been drinking, instead smoking tobacco from a hookah and putting together a skateboard in their apartment.
After Bender and another officer grabbed both of Nelson's arms, he climbed over the railing to the lawn where he stood still for a moment, shoulders slumped forward, then the officers used a Taser on him. Nelson fell to the ground and police handcuffed him then escorted him to a police cruiser.
Attorney Thomas Dickey said the facts of any incident such as Saturday's make each case different, but from a legal standpoint police do have powers in riot situations to order people, even if their innocent bystanders, to disperse.
Whether Nelson was lawfully arrested and charged with resisting arrest is another matter, Dickey said.
Police can order those involved in a riot, "or others in the immediate vicinity," to disperse, he said.
A riot situation, by law, has to involve three or more people involved in "a course of disorderly conduct," he said. That conduct also has to involve "substantial harm, serious inconvenience or annoyance and alarm."
In Nelson's case, Dickey said he could see a defense attorney arguing that Nelson was on his own property, that neither he nor anyone on his porch were involved in the bottle throwing and so any order to disperse wouldn't apply to him.
It will be critical to the commonwealth's case that prosecutors can show the accused was lawfully ordered to go inside because of the riot situation and that he broke the law by refusing to obey officers, Dickey explained.
An argument the commonwealth could make, Dickey said, would be bottles were being thrown in the area and even if Nelson wasn't involved, he ignored a lawful order by officers who were attempting to restore order in a riot situation.
"It all depends on the facts of the case," Dickey said. "And believe me, you're going to hear a lot of different versions of them."
Police documents state Nelson "would not comply after several demands, and officer Bender told him he was under arrest and reached over the balcony and grabbed him around the neck to gain control of him until backup officers could arrive and assist. The defendant's neck was the only area of the body that he could reach. The defendant immediately resisted, threw his guitar on the floor and attempted to drop his body to the floor off the chair. Officer Bender maintained his arm around the Defendant's neck and held him in place. Sgt. Kohn of Altoona Campus Police arrived and reached over the railing and grabbed the defendant by the left arm. Officer Bender grabbed the defendant by the right arm and they attempted and ordered him several times to stand up and climb over the railing. The defendant would not comply. Bender applied pressure to the defendant's right wrist until he stood up. When he was standing, the defendant continued to resist. ... Bender was telling him to comply or he would [have a Taser used on him]."
Nelson was one of 12 people charged with a felony for riot, but he was the only one not charged with an alcohol-related offense. He was the only one of the 12 to be arrested for aggravated assault of a police officer.
Penn State students the next day said they were upset that police were arresting people without reading them their Miranda rights.
Blair County District Attorney Richard Consiglio said Miranda rights only need to be given if police intend to question a person upon arrest. If a person begins making a confession without being prompted by police, police may tell the person they have the right to remain silent, but they do not have to give Miranda rights if they begin speaking freely, he said.
Consiglio said police do not need to give a reason for arrest, but most police officers do tell people why they are being arrested, he said. In Nelson's case, he allegedly was told to go inside and did not comply.
"When I was a kid, when a cop tells you to go inside, you go inside," Consiglio said. "I have no sympathy for him."
Consiglio said Logan police have not involved him in the felony rioting charges filed against 12 people - 10 males and two females - on Saturday.
Nelson's parents bailed him out of Blair County Prison Sunday morning. They have seen the video and plan to retain an attorney. Preliminary hearings for Nelson and the others arrested are scheduled for Thursday at 1 p.m. before Judge Steven Jackson.
When Bender arrived at the upper level of Nittany Point, police records state he saw 800 to 1,000 people in a loud outside party in the parking lot. According to a Nittany Pointe employee, there are 620 or fewer students who live in the 13 buildings.
Bender saw intoxicated people running into the woods past closely spaced no trespassing signs after they spotted him, police records state. He could see numerous heavily intoxicated people staggering and stumbling about the parking lot. He told them to just disperse and go back to their rooms, police records state.
Police backup arrived when the first bottle was thrown from the large crowd. A second bottle smashed near Bender as he escorted two people to his cruiser for public intoxication and underage drinking. A third bottle was thrown at Benders' vehicle as he drove through the third level of Nittany Point, police records state. When a fourth was thrown, Bender declared a riot situation over his public address system and said all individuals must comply by going indoors from apartment balconies.
Logan police are continuing an investigation to file charges against people who threw bottles and shouted obscene language, which he said could constitute disorderly conduct.
"Logan Township never has and never will tolerate that kind of behavior by students,"?Heller said. "That was the worst of circumstances."