Pickup basketball is a physical sport, as evidenced by the playground rule "No blood, no foul." But when the guy who gets smacked is a Denver cop, the rules change. What began as a friendly game of hoops last fall has evolved into a nine-month court battle in which a jury will settle what amounts to a schoolyard spat between teammates.
On one side is 29-year-old Don Wullschleger, a six-foot-one aeronautical engineer from Castle Rock. Wullschleger, who admits to some pretrial jitters, is facing charges of assault and disturbing the peace. "It's a contact sport," Wullschleger says. "I've gotten elbowed in the head from my own guys. Fighting over this seems like something you'd do in fifth or sixth grade." And that his adversary is a cop--a fact Wullschleger didn't learn until it was too late--only makes things more ridiculous in his eyes.
On the other side is 35-year-old Denver gang-squad police officer Ken Chavez, who claims he was sucker-punched and then treated like a villain for calling in the troops and demanding Wullschleger's arrest. "I've been playing competition basketball for years and years," the five-foot-ten Chavez says. "I've been tripped, hit in the head and elbowed in the eye. You know a foul when it happens. You know an accident when it happens. But my own teammate punched me."
The ill-fated matchup occurred on October 26 at Denver's Southwest Rec Center. Wullschleger and his buddies Roy Penny, Craig Hoyer and Mike O'Connell have been playing basketball every Wednesday night for years, usually at a Denver-area elementary school. But they moved their base of operations to the rec center when it opened last September. The gym, in addition to being new, offered a changing lineup of players, most of whom, like them, are thirtysomething professionals in search of a little fun, exercise and competition.
Early on that night, Penny teamed up with Chavez, Chavez's fifteen-year-old stepson, another teen and 36-year-old Mark Ryan for a game of five-on-five. They quickly dispatched their opponents, which allowed them to remain on the court and take on a group of challengers. It was when the new group came on and chose who each wished to guard that the trouble began.
Chavez didn't like the matchups, primarily because his stepson was paired against an older, taller player. The officer says he asked Penny "nicely" to switch off with someone else. Penny refused.
"I wasn't demanding," Chavez says. "I just wanted to win. But [Penny] got pissed. He said, `I can guard whoever the fuck I want to guard.' He got an attitude. And after he said that, I got an attitude. I said, `What's your problem? You afraid to guard someone your own size?' He got mad, stomped off and said, `I don't have to take this shit.'"
According to other players and onlookers, however, Penny's eventual exit was the only thing Chavez recalls correctly. "He [Chavez] must have spent between five and ten minutes trying to match everybody up with who he thought they ought to be with," Ryan says. "He was taking over this game like it was an NBA championship. It was something else. He was accusing people of being wimps and using other language, too."
"He kept saying, `You're a pussy! You're a pussy!'" Penny says. "He must have said that twenty times in a row." When the game finally started, Chavez inbounded the ball, passed it to someone else and then confronted Penny.
"I was angry about being provoked and insulted," Penny says. "My first reaction was, `Let's have a fight.' But you know, my next thought was, `No. This is stupid. I'm 37.' When you're a kid, you get in fights. But times have changed. You can get killed over a Broncos jacket, shot over a traffic confrontation. I thought he was from the `thug element.'"
Hoyer and Wullschleger had been sitting on the bench with two other men, waiting to play. Wullschleger stepped in to take Penny's place.
Chavez says now that he was a little leery of the new player on his team. "I could tell he was mad," Chavez says. "He gave me a mean look and he says, `Penny can guard whoever he wants.' I said, `What's the problem here? I just want to win, and your friend is being a wimp.'"
It probably didn't help matters that Chavez continued to press the issue of Penny's and Wullschleger's manliness even when the game got under way. "Chavez passed the ball," Wullschleger says. "He came down the court toward me. When he passed, he said, `You're all a bunch of pussies.' I hit him on the shoulder."
Wullschleger insists that it was "accidental" contact. Chavez says Wullschleger blindsided him, "punching me with an overhead right in the right temple."
Chavez's stepson and the boy's friend have backed up Chavez's version of events. But other onlookers have told the city attorney that they didn't see anything untoward on the court. Chavez did not fall, they say, nor did they see any physical sign of an assault.
"The first thing I knew of it," says Hoyer, "was two minutes into the game, and Ken Chavez comes walking off the court saying, `Somebody call the police!' And he's telling Don, `You're under arrest.' Nobody could believe what was going on." Disgusted, Hoyer and Wullschleger decided to call it a night.
Chavez, however, ran to the sidelines, plucked his badge from his fanny pack and intercepted them as they headed for the door. Holding the badge in front of the two men like a shield, he ordered them to stay where they were. But when it seemed that the two were still intent on leaving, Chavez says, he called to some other police officers who'd been playing on a different court and asked them to keep the pair from leaving.
It wasn't until he saw the badge, Wullschleger says, that he realized that Chavez (with whom he'd played before) was a police officer. "It was the farthest thing from my mind, because I've never seen a police officer act like such a jerk that way," Wullschleger says. Ryan, whose brother is a cop in California, says that he, too, was taken aback when he realized that Chavez was a cop. "I expect more from an officer," Ryan says. "I expect more from my brother."
The rec center manager (who declines to be interviewed) had been watching from the sidelines and tried to calm Chavez and steer him into an office, onlookers say. But Chavez refused to be swayed and continued to demand that someone call the police. "The manager wouldn't call, and he told me I couldn't call the police, either," Chavez says. "Finally, I told him, `Let me call or I'll have you cited for interference.'"
When Chavez did get to a phone, he called in the incident as "off-duty officer has been assaulted and needs assistance."
An "officer needs assistance" call is considered high priority, says Lieutenant Joe Black, who responded to the scene that night. "Anytime an officer calls for help, everybody comes with lights and sirens," he says. "It's like the cavalry coming in. When we originally got the call, we thought it could be serious."
And, sure enough, within two minutes of Chavez's call, five police officers rushed into the gym. After learning the gist of the problem, Black told one of the officers to take Wullschleger outside and write him a summons to appear in court. Wullschleger, the lieutenant said, was not to be handcuffed or arrested.
That Wullschleger was being charged with assault wasn't good enough for Chavez. "He should have been jailed, because it was a flagrant act," Chavez complains. "I could have been injured."
According to Penny (who returned to the gym after receiving a frantic call from Hoyer), Chavez and the lieutenant exchanged angry words about whether or not the police should have been called to the scene in the first place: "The lieutenant pointed his finger at Chavez and told him, `You take care of your own business on your own time.' And Chavez told him, `I'm going to report you to Internal Affairs.'"
Chavez will not discuss his argument with Black. And Black will say only that he and Chavez had a "miscommunication."
Wullschleger says city prosecutors offered him a plea bargain. If he'd plead guilty to disturbing the peace, the city would drop the assault charge and sentence him to six months' probation, after which his record would be cleared. Wullschleger declined. "I was concerned," he says, "that Chavez was using his badge to bully people. And what I did did not warrant being arrested. I want my record clean, and I want to make it clear to the police department that Officer Chavez does not belong on the force."
And so, three months after the incident, the case shifted from the courtroom to mediation, an alternative to trial wherein two parties agree to sit down, talk over their differences with a neutral third party and, if possible, reach an agreement that will end with charges being dismissed.
Mediation ordinarily occurs when two parties have been charged as co-defendants, says Assistant City Attorney Dan Deters. "This was outside the normal scope that we would send to mediation," he adds.
Wullschleger says his mediator urged conciliation. "He said, `Apologize, and he'll go along with it,'" Wullschleger recalls. "I said I didn't think so. But I apologized. I said, `I'm sorry I hit you.'" And, because Chavez had said the incident humiliated him in front of his stepson, Wullschleger apologized for causing any embarrassment to the officer.
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For Chavez, however, the matter was simply too big to let go. To him, it was no longer a matter of simple assault. Not only had he been hit, he says, but he'd been dissed by the Department of Parks and Recreation, which had suspended both him and Wullschleger from using the gym for thirty days. In addition, Chavez says, the rec center manager complained to his captain, touching off an Internal Affairs investigation of him. (Police administrators will not confirm whether they investigated complaints against Chavez.)
The case is now slated for a jury trial August 15. And neither side shows signs of retreat from their position.
Only Mark Ryan appears be somewhere in the middle. "It could have happened just in the normal course of basketball," he says of the whack Chavez received. "But," he adds, "if Don did do it on purpose, Officer Chavez had it coming.
"My question is, what would have happened if Chavez wasn't a police officer? If somebody was hurt, if they drew blood, if they did it intentionally, then you'd call the police. But people get hurt doing recreational sports every day. I don't see this happening with a couple of regular people.