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Comments on Criminal Issues
November 2, 2007
POLICE CUSTODY DEATHS
Houston Criminal Defense Attorney’s Perspective, Allegations Police Abuse in the Jail
This past summer Houston police were summoned to a “disturbance call” at a home in the 9200 block of Denton. The call had been placed by the mother of 35-year-old Johnell Patrick, a thrice-convicted drug offender.
“He thought someone was trying to kill him and he kept seeing a light so we called the police,” Johnell Patrick’s mother said.
The police arrived at the Patrick residence at about 1:20 a.m. They learned the drug offender had outstanding city warrants. The police arrested Patrick and took him to HPD’s southeast jail at 8300 Mykawa.
“I told them when they drove off not to hurt my son,” Patrick’s mother said, realizing that her son was having some kind of mental health problem.
According to police reports, Patrick was “combative and erratic” during the booking process at the jail. The officers believed this justified their “hog-tying” (cuffing a person’s hands and legs behind the back while the person’s lies face down) and placing Patrick in a padded cell. Most law enforcement agencies no longer use “hog-tying” as a form of restraint because it has been linked to suffocation deaths caused by “positional asphyxia.”
After the police restrained Patrick in the padded cell, they asked the jail’s medical specialist, Ram Chellaram to examine him or refer him to a hospital. The medical specialist found it impossible to check Patrick’s vital signs because he was violently struggling against his restraints. Chellaram said Patrick was the first inmate he had seen “hog-tied” during the seven years he worked at the jail.
Johnell Patrick died that morning “hog-tied” in the restraints.
“When my other son went to identify Johnell, he said that wasn’t his brother,” Patrick’s mother said. “They did something to him in that jail.”
The Harris County coroner ruled Patrick’s death was an “accident” caused acute cocaine and ethanol toxicity. The autopsy report revealed that Patrick had suffered “multiple blunt force injuries,” including rib fractures and a subscalp hemorrhage.
On the day the coroner’s office released the Patrick autopsy report the Harris County District Attorney’s Office closed its criminal investigation into the case, refusing to refer the matter to a grand jury.
In the wake of the Patrick jail death, the city of Houston fired Chellaram for failing to adequately treat the inmate.
“Chellaram would not examine him (and) wouldn’t release him to go to the hospital,” said Catherine Troisi, the city assistant director of disease prevention and control.
The Johnell Patrick case is not unusual. The United States Justice Department’s Bureau of Justice Statistics recently released the findings of a study of 2,002 arrest-related deaths from 2003 through 2005. The study found that 55 percent of those deaths were due to homicide by state and local law enforcement officials. The following causes were given for the rest of the deaths:
• 13 percent caused by alcohol/drug intoxication
• 12 percent caused by suicide
• 7 percent caused by accidental injury
• 6 percent caused by illness or natural causes
• 7 percent caused by unknown factors
The study revealed that 77 percent of the deaths were men aged between 18 and 44 – and 44 percent of them were Caucasian, 32 percent African-American, and 20 percent Hispanic.
The BJS report concluded that most of the “police killings” could be considered justifiable, although it stopped short of making that determination, because of the following factors:
• 80 percent of the deaths involved criminal suspects who brandished a weapon “to threaten or assault” the arresting officer(s).
• 17 percent of the deaths involved criminal suspects who grabbed, hit, or fought with the police.
• 35 percent of the deaths involved criminal suspects who tried to flee or otherwise escape arrest.
Johnell Patrick was an African-American suspect. The BJS made the following findings relative to African-American suspects who died in police custody:
• 41 percent for blacks vs. 33 percent for whites were for alcohol/drug intoxication.
• 42 percent for blacks vs. 37 percent for whites were for accidental injuries.
• 46 percent for blacks vs. 39 percent for whites were for unknown causes.
Christopher J. Mumola, author of the BJS report, could not offer any rational reasons why African-Americans tended to be victims of accidental injuries which were usually caused by police chases or for being victims of intoxication which were usually caused by drug overdoses or drunkenness.
While the coroner may have concluded Johnell Patrick died of cocaine overdose, his report raises serious questions about arrest and post-arrest police abuse.
The United States Supreme Court has held that the police may not seize an unarmed, non-dangerous suspect by shooting him dead. See: Tennessee v. Garner, 471 U.S. 1, 11, 105 S.Ct. 1694 (1985). See also: Ellis v. Wynalda, 999 F.2d 243 (7th Cir. 1993)[police held liable for shooting suspect in the back after suspect threw a light-weight mesh bag and a jacket at officer and then turned and ran away]; Davis v. Little, 851 F.2d 605, 607-08 (2nd Cir. 1988)[police held liable for shooting fleeing suspect they knew was unarmed, even though suspect had punched and shoved officers before trying to escape].
But it is extremely difficult to find law enforcement officials liable in wrongful death cases, either during or immediately after arrest, because “the doctrine of qualified immunity shields police officers acting in their official capacity from suits for damages under 42 U.S.C. § 1983, unless their actions violate clearly-established rights of which an objectively reasonable official would have known.” See: Thomas v. Roach, 165 F.3d 135, 142 (2nd Cir. 1999). See also: Harlow v. Fitzgerald, 457 U.S. 800, 102 S.Ct. 2727 (1982)[dismissal of lawsuit as a matter of law if qualified immunity doctrine applies].
In Saucier v. Katz the Supreme Court set forth the appropriate structure of a qualified immunity analysis, finding that the “requisites of a qualified immunity defense must be considered in proper sequence.” See: 533 U.S. 194, 200, 121 S.Ct. 2151 (2001). This sequence requires as a threshold matter a determination of whether “the officer’s conduct violated a constitutional right[.] This must be the initial inquiry.” Id., 533 U.S. at 201. See also: Siegert v. Gilley, 500 U.S. 226, 232, 111 S.Ct. 1789 (1991).
If the trial court finds that a constitutional violation has occurred, “the next, sequential step is to ask whether the right was clearly established.” Id.
Saucier requires a determination be made of a constitutional violation before proceeding to the qualified immunity analysis. See: Poe v. Leonard, 282 F.3d 123, 133 (2nd Cir. 2002)[“Although Saucier did not change the analysis a court applies in examining a qualified immunity defense, it change the procedure a court should follow.”]
The Supreme Court in Saucier made it clear that the sequential two-step analysis of qualified immunity claims is not recommended but required.
Qualified immunity is a defense through which “the law strives to balance its desire to compensate those whose rights are infringed by state actors with an equally compelling desire to shield public servants from undue interference with the performance of their duties and from threats of liability which, though unfounded, may nevertheless be unbearably disruptive.” See: Buenrostro v. Collazo, 973 F.2d 39, 42 (1st Cir. 1992). See also: Harlow v. Fitzgerald, supra, 457 U.S. at 806.
“Hence, state officials exercising discretionary authority are entitled to qualified immunity insofar as their conduct does not transgress clearly established constitutional or federal statutory rights of which a reasonably prudent official should have been aware.” Id.
To determine if a law enforcement official is entitled to the protection of qualified immunity, the court must inquire into the objective legal reasonableness of the defendant's actions and decide whether the constitutional right was clearly established when the official acted. In actuality, the outcome of this inquiry “depends substantially upon the level of generality at which the relevant ‘legal rule’ is to be identified.” Id. See also: Anderson v. Creighton, 483 U.S. 635, 639, 107 S.Ct. 3034 (1987).
Although difficult to maintain, the estate of Johnell Patrick very well may have a viable 42 U.S.C. § 1983 claim against the Houston Police Department because its policies prohibit “hog-tying” prisoners. Further, the department has said that while the District Attorney’s office has closed its investigation, its Internal Affairs division will continue to investigate the Patrick death, indicating a probability of impropriety in the death. Police Chief Harold Hurtt said he will personally review the department’s “restraint policy” to see if there is a need for “improvements.”
These trail signs, along with the firing of Chellaram, beg judicial scrutiny.
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