DiSalvo: ‘He was going to hit me’ | AspenTimes.com

DiSalvo: ‘He was going to hit me’

Naomi Havlen

Pitkin County Sheriff’s Office Deputy Joe DiSalvo hit a man at Jimmy’s restaurant in the incident that lead to his arrest Tuesday night for municipal assault and battery, a misdemeanor.According to a police report released Thursday, DiSalvo told police the victim, Thomas Drake, did not push him or touch him in any way, nor did he raise a fist. But DiSalvo said he felt threatened by Drake, and it appeared that Drake was going to hit him.DiSalvo is quoted in the police report as saying to police officer Linda Consuegra, “Linda, I know that I should not have hit him, but he was going to hit me … I know he was, Linda.”DiSalvo, who was not on duty at the time of the incident, remains on voluntary administrative leave from his position as the chief of investigations for the Pitkin County Sheriff’s Office.DiSalvo, witnesses and Drake explained the situation to police at around 8 p.m. Tuesday, just after the incident occurred. DiSalvo said his wife and two friends were having dinner in the bar area of Jimmy’s restaurant when two women entered the bar and began looking for an earring on the floor.Tim Cottrell, who knows both DiSalvo and the women, began helping the women look for the earring. DiSalvo told police that “in jest” he threw some dollar bills on the ground near them, saying, “looking for something?” DiSalvo said he saw one of the women say something inaudible to Cottrell, and he picked up the money not realizing that he had upset anyone.According to DiSalvo, one of the women then said something to her boyfriend, Thomas Drake, about the incident. DiSalvo said Drake came over to his table and got close to him, asking him what he had meant by throwing money on the ground. DiSalvo told police that Drake said “I oughta …” The next thing DiSalvo did was punch Drake because he felt threatened; he thought Drake was going to hit him as Drake had his fists clenched.Officer Consuegra reported although she smelled alcohol on DiSalvo’s breath, his speech was clear and he did not appear to be intoxicated.According to the police report, witnesses sitting with DiSalvo said Drake was in DiSalvo’s face. They noted Drake was “very intimidating,” and that Drake’s size (at 6 feet 5 inches and 228 pounds, according to the report) would “intimidate and threaten anyone.”Witnesses inside the restaurant told police that Drake had not touched DiSalvo or verbally threatened him before DiSalvo hit Drake.Drake later told police that he had not said “I oughta …,” and that he only wanted to talk about the money that was thrown on the floor. Police noticed that Drake’s left cheek was swollen; Drake was checked out by medics but not taken to the hospital.DiSalvo will not comment on the incident. His attorney, Denver-based Pamela Mackey, said her client acted in self-defense. Two local attorneys agree that self-defense is an appropriate argument for DiSalvo.”It’s my understanding that you don’t have to be beaten up before you can defend yourself. But it has to be a reasonable, credible threat to you – like how you don’t have to get shot before you can shoot back,” said defense attorney Arnie Mordkin. “What’s always difficult to determine is would the average, reasonable person under the same or similar circumstances believe that you were at risk or in imminent danger?”The perception that you must retreat from someone who is threatening you is a myth based on common law, added defense attorney Jeff Wertz.”You have the right to defend yourself, and if someone gets up in your face, you have the right to get them out of your face,” he said. “It’s not like they can poke their finger one millimeter away from your nose and say there’s nothing you can do – you can do something about that. It’s an offensive contact.”Wertz noted, however, that the question is one of reasonableness – it’s not reasonable to shoot someone who pokes a finger in your chest, he said. And you cannot be the initial aggressor of a situation and then employ self-defense, he said.Naomi Havlen’s e-mail address is nhavlen@aspentimes.com

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