Deputy Appeals Suspension Over Use of Nightstick : Police: The Civil Service Commission will decide whether a three-day penalty is too severe. The officer also is named in a civil suit alleging brutality.

A sheriff’s deputy who allegedly violated department policy by jabbing a suspect in the head with a baton has appealed his superiors’ decision to suspend him.

The county’s Civil Service Commission is scheduled to hear arguments today to decide whether to overturn the three-day suspension of Deputy Steven Capuano.

Meanwhile, the two Camarillo brothers arrested by Capuano on Dec. 28, 1989, have filed a civil rights suit alleging police brutality.

Capuano used only the force necessary to restrain the suspect, said Joel Block, Capuano’s attorney from the Santa Monica law firm of Silver, Goldwasser & Shaeffer.

But according to the Sheriff’s Department, Capuano used undue force and applied the potentially dangerous baton in violation of department policy when he arrested Michael Harvey on suspicion of stealing a vehicle in Camarillo.

“In the struggle Capuano found himself in, he appears to have gone overboard,” said Lawrence Matheney, an assistant county counsel who is representing the Sheriff’s Department in the hearing.

Capuano and Deputy Timothy Cowgill were told that brothers Christopher and Michael Harvey had stolen a vehicle belonging to their employer, Marvin McCabe Jr. McCabe had fired them from his sheet-metal firm earlier that day, Matheney said.

The deputies found the truck parked across the street from the Harveys’ house and arrested Christopher Harvey without incident when he came out of the house.

However, when his brother emerged, Christopher Harvey yelled for him to return to the house to avoid arrest.

Believing that Michael Harvey was going to flee, Capuano put his hand around Harvey’s arm and put him face-down on the lawn, Matheney said.

Michael Harvey allegedly clasped his hands under his chest, apparently so deputies could not handcuff him, officials said. He was being noncooperative but was not combative, Matheney said.

Capuano apparently noticed that his nightstick had fallen out of his holster, Matheney said. The deputy later said he was afraid the suspect would grab the stick and use it as a weapon, Matheney said.

Capuano picked up the nightstick and used it at the back of Michael Harvey’s neck to hold down his head, Matheney said.

He apparently “jabbed” Harvey a couple of times on the side of the head and cut his ear, breaking the skin, Matheney said. Eventually, Michael Harvey was handcuffed, and the brothers were taken to the Camarillo station for questioning, Matheney said.

It was subsequently discovered that one of the brothers had been using the truck for several years to travel to and from work. When the brothers were fired, they said they would take the truck home and empty out their belongings, Matheney said. McCabe reported the truck stolen, Matheney said.

In the meantime, the brothers apparently had put dog feces in the cab of the truck and put powdered cleanser in the gas tank, Matheney said.

The brothers were never booked, and charges were never filed, Matheney said.

But the Sheriff’s Department reprimanded Capuano, ordering a suspension that cost him $400 to $500 in lost wages, Matheney said.

Assistant Sheriff Oscar Fuller said in a May 10 letter to Capuano that it is against department policy to intentionally strike a person above the shoulders with a baton. In addition, Fuller said Capuano put the baton behind Michael Harvey’s head and leaned on it with both hands, which “could have caused serious, if not lethal, injuries.”

Capuano further violated policy by failing to document the actions in a memorandum to his division commander, Fuller said.

However, Capuano denied some of the actions took place and said the penalty was excessive for his alleged conduct.

“He admitted to using a baton--to using a small portion of it to prod the suspect in the side,” Block said. “It wasn’t like any swinging blows of any kind.”

At one point, Block said, Capuano slipped and nicked the suspect slightly in the ear.

Meanwhile, the Harvey brothers have filed a lawsuit against Capuano, Cowgill, the Sheriff’s Department, McCabe and Ventura County.

The Harveys’ suit, which was filed Oct. 3 in the 2nd U.S. District Court in Los Angeles, asks for $1 million in compensatory damages and an unspecified amount in punitive damages.

It alleges, among other things, that the Harveys’ civil rights were violated when the deputies were not properly disciplined for illegal assaults on the Harveys. It also alleges that they were put under emotional distress when McCabe issued a false statement to police, and that they were falsely imprisoned when they were taken into police custody.

In addition, the suit charges that excessive force was used by the deputies, such as when one of them held Michael Harvey as the other kicked him. As a result, Harvey suffered injuries, including cuts, bruises, pain and mental suffering.

And it alleges that the county and Sheriff’s Department have failed to properly investigate such incidents and discipline the officers involved.