West Warwick Police Grossly Negligent in Death of Black Man: No Reason for Stop, Arrest, Beating and Failed to Provide CPR - Awarded $1 Million

From [HERE] and Rhode Island Lawyers Weekly 9/20/12. A Rhode Island town has reached a $1 million settlement with the family of a Black man who died in police custody in 2008.

In September a federal judge determined that three police officers were liable to the estate of a deceased arrestee for gross negligence and violation of the Black man’s civil rights.

The estate argued that the death of Mark Jackson was caused by the officers’ failure to undertake measures to save his life once they found that he was unconscious in the back seat of a squad car.

“[T]he Court concludes that the officers had a common-law duty to render emergency assistance to Jackson because Jackson was in the officers’ custody, which created a special relationship,” Judge William E. Smith wrote. “[T]he Court holds that, under Rhode Island law, when an officer is trained in CPR and/or first aid, he has a duty to render CPR and/or first aid in circumstances where he knows, or has reason to know, that his detainee has been seriously harmed or is in a life-threatening condition and his rendering of assistance is likely to aid the detainee. ”

The 123-page decision is Petro v. Town of West Warwick, et al., Lawyers Weekly No. 52-050-12. 

Providence attorneys Stephen P. Sheehan and John P. Barylick were counsel for the estate. The defendants were represented by Providence attorneys Brian J. Clifford, Karen K. Corcoran and Marc DeSisto. Fatal encounter

On the day he died, Jackson was visiting his mother and went to an adjacent liquor store parking lot to smoke a cigarette. That night, defendant Officers Sean Lukowicz and Patrick Kelley received a report of the liquor store’s sign being vandalized.

When the officers saw Jackson illuminated in their headlights, Lukowicz turned on his search light and directed it at Jackson. Jackson immediately turned 180 degrees to his left and started walking away. Both officers then exited their patrol cars and started walking toward Jackson.

When they observed Jackson walking away from them, the defendants ordered him to stop. Jackson responded with words to the effect of: “You’re not the boss of me. ” Kelley reached out to take hold of Jackson’s right arm, but before he could touch him, Jackson removed his right hand from his pocket and “swatted” or “flailed” at the officer.

The judge later found that “Jackson’s flail/swat was not made in a threatening manner and would not place a reasonable person in fear of imminent bodily harm. ”

Within seconds, Kelley made the decision to arrest Jackson for assault. After deciding to detain him, Kelley, with Lukowicz, immediately moved in and seized Jackson by his shoulders, attempting to put him to the ground using an arm-bar maneuver.

Jackson was then taken to the West Warwick Police Department. Lukowicz’s vehicle contained only himself and Jackson. Halfway there, all sound from the back seat stopped.

“Given the testimony of the officers that the trip at that time of night took them approximately one minute, the Court finds that Jackson suffered a sudden cardiac arrest thirty seconds prior to his arrival at the station,” the judge stated. 

When Lukowicz arrived at the station, he exited his patrol car without checking on Jackson in the back seat. When Kelley arrived and observed that Jackson was not moving or making any noise, Kelley did not open the doors to the patrol car to assess Jackson. Instead, Kelley and Lukowicz went into the stationhouse to secure their service weapons.

Sgt. Scott Thornton was the officer in command at the station that night.

The police department dispatcher eventually was contacted to request rescue.

More than four minutes after arrival, Kelley made the first attempt by any officer to perform cardiopulmonary resuscitation. The judge noted, however, that Kelley saw fire department personnel arriving before he started chest compressions.

“It appears from the timing of Kelley’s action, and the Court so finds, that Kelley was motivated to perform CPR by guilty recognition that he, or one of the other officers, should be seen performing CPR when fire department personnel arrived,” Smith said.

Jackson arrived at the emergency room approximately 30 minutes after he and the officers had pulled in to the stationhouse. Records showed that Jackson was pronounced dead at the hospital at 11:44 p.m. Civil rights violation

The plaintiff administrator of the estate alleged that Jackson was unlawfully seized in violation of his Fourth Amendment rights.

Smith found no reasonable basis to detain Jackson.

“Other than his physical proximity to the reportedly-vandalized sign, there was no reason for the officers to believe that Jackson had participated in the reported vandalism, or any other offense,” the judge found, adding that the sign was not actually vandalized and that Jackson did not fit the description of the suspected vandals.

“It may be true that most adults would stop and talk to police officers when approached, but it is firmly established that a person has the right to walk away from police questioning,” Smith said. “If the right to walk away is to mean anything, it must mean that a person may walk away from law enforcement officers when the officers have initiated verbal contact and otherwise lack reasonable suspicion or probable cause to detain him or her, and that walking away cannot alone support a finding of reasonable suspicion. ”

The judge concluded Kelley and Lukowicz did not have a particularized and objective basis for suspecting Jackson of criminal activity either prior to Jackson’s flail, or after Jackson flailed in reaction to Kelley’s attempt to make contact.

“It is doubtful that an officer approaching the suspect of a completed misdemeanor (let alone one that appeared not to have taken place), which suspect is not believed to be armed or dangerous and who exhibited signs of emotional disturbance, would ever be justified in applying an arm-bar hold to effect a temporary detention,” he added.

“Accordingly, the Court concludes that Jackson was unlawfully seized without reasonable suspicion or probable cause and that his Fourth Amendment right to be free from unlawful seizure was therefore violated,” Smith summed up. Gross negligence

The defendants argued that, as a matter of law, they could not be held liable for gross negligence because, in their view, Rhode Island law imposes no duty on police officers to administer CPR under the circumstances.

“Here, the officers were either ‘required by law’ to take Jackson into custody (in light of his resisting arrest) or voluntarily did so — either way, the officers acted ‘such as to deprive [him] of his normal opportunities for protection,’ and, therefore, a special relationship arose that created a duty on the part of all three officers to aid and protect,” Smith found.

“Calling rescue is not sufficient … where the officer knows or has reason to know that his failure to provide CPR and/or first aid while awaiting rescue’s arrival may place the detainee in risk of grave physical harm,” he said. “Accordingly, the Court concludes that Defendants had a duty to call rescue and to administer CPR to Jackson as soon as practicable and while they waited for rescue to arrive. ”

Smith further found that “the totality” of the officers’ conduct from the time they arrived at the stationhouse to the point at which rescue appeared constituted gross negligence “with respect to each officer. ”

“Indeed, there is a staggering disconnect between the appearance of Jackson, obviously in critical distress, and the officers’ casual pace and apparent carelessness,” the judge said. “Defendants acted more like observers than police officers and first responders responsible for their detainee. ”

Smith went on to find that the evidence presented at trial suggested that Jackson had a greater than 50 percent chance of survival if Lukowicz, Kelley and Thornton had not been grossly negligent. Damages

Smith awarded the estate $250,000 pursuant to the Rhode Island wrongful death statute, for which defendants Lukowicz, Kelley, Thornton and the town were held jointly and severally liable.

The judge also awarded $250,000 in compensatory damages for the pain and suffering associated with the unlawful seizure of Jackson’s person, for which Lukowicz, Kelley and the town were jointly and severally liable.

Smith found the estate was entitled to reasonable counsel fees pursuant to 42 U.S.C. §1988.

Finally, he imposed punitive damages in the amount of $1,000 as to each individual defendant — Lukowicz, Kelley and Thornton — to be paid by them individually without indemnification from the town.

CASE: Petro v. Town of West Warwick, et al., Lawyers Weekly No. 52-050-12

COURT: U.S. District Court

ISSUE: Were officers grossly negligent toward an arrestee who died in police custody?

DECISION: Yes