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POLICE CUSTODY DEATHS

Houston Criminal Defense Attorneys 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 Patricks 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 HPDs southeast jail at 8300 Mykawa.

I told them when they drove off not to hurt my son, Patricks 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 persons hands and legs behind the back while the persons

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 beenlinked to suffocation deaths caused by positional asphyxia.

After the police restrained Patrick in the padded cell, they asked the jails

medical specialist, Ram Chellaram to examine him or refer him to a hospital.

The medical specialist found it impossible to check Patricks 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 wasnt his

brother, Patricks mother said. They did something to him in that jail.

The Harris County coroner ruled Patricks death was an accident caused

acute cocaine and ethanol toxicity. The autopsy report revealed that Patrick

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had suffered multiple blunt force injuries, including rib fractures and a

subscalp hemorrhage.

On the day the coroners office released the Patrick autopsy report the Harris

County District Attorneys 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) wouldnt 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 JusticeDepartments 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.

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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 policecustody:

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 rationalreasons 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 anunarmed, 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 inwrongful 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)

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[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 officers 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, 282F.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

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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 Attorneys 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 departments restraint

policy to see if there is a need for improvements.

These trail signs, along with the firing of Chellaram, beg judicial scrutiny.