Monday, January 9, 2012

How the Tanisha Williams Case Might Stack Up In Court

Mine is not a very popular opinion, that CMPD officers failed in their handling of the Tanisha Williams' arrest.

But the facts, department directives, court cases where the appellate courts have affirmed, and the actions of CMPD Officers support the belief that CMPD failed to correctly handle the situation.

The opposing views are disturbing, but somewhat understandable, no one wants to think that our Police department is poorly trained and lacks proper supervision.

But some of the hateful comments from the general public are troubling:

"She killed herself, one less ghetto rat to breed, good riddance, one less animal on the streets, she did it to herself"

and so on, which do very little to objectively understand the case.

Many people feel the police are helpless to prevent someone who is intent on committing suicide. However if police can't prevent the suicide of someone in their custody, then how can the public expect police to protect them from homicide or other violent crimes?

The Question No One Wants to Ask

And then there is the question that everyone avoids, would Tanisha Williams' have received the same treatment (arrest and unsupervised prolonged detention) from CMPD Officers if she were a white teenager shoplifting in a South Charlotte store?

Even politicians like Charlotte City Council member Andy Dulin have weighed in:

"I support the CMPD on this issue. Our Officers are well trained and I believe they acted appropriately. I trust the investigation will reveal that as well."

Politicians always support the Police, so that is not a surprise but Dulin has stuck his neck out saying he blindly believes CMPD Officers are well trained and acted appropriately.

This is clearly NOT a case of Police Brutality, though the Black Nationalist Network claims there are many signs of Police Brutality. Their take on the case is here.

And then there is a little local flavor and commentary from the "Masked Hoodlum"

But somewhere in the middle is the truth, to start with no one at Cedar Posts is claiming that CMPD Officers did anything to directly cause Ms. Williams' death.

However if a court should find that CMPD Officers violated Ms. Williams civil rights under section 1983 it could have very widespread impact on the department.

The trouble that lies ahead is rooted in the civil rights movement of the 1960's. Many police departments are sued, some on a daily basis, but when a case jumps up to a Civil Rights case, it usually means big trouble and in some instances imprisonment for those found to have violated the law.

Deliberate Indifference

The term is "deliberate indifference" and it will become the buzz word when people speak of this case, for it is the required standard to find a Police Departments liable for failing to protect the lives of those in custody.

Once CMPD officers took Williams into custody they assumed responsibility for her welfare.

The police, as a general rule, owe no duty to the world at large to protect them from harm. However, once a person becomes a prisoner, a different set of rules applies. The place and conditions of confinement are under the control of the officers and the department. Having had her freedom taken away, Williams was no longer in a position to do things for herself.

With her hands cuffed behind her Williams may not have been able to push herself back up to reduce the tension on the seat belt and restore her breathing. Because she had been deprived the use of her hands she would not have been unable to remove the seat belt that in her rage tightened around her neck.

Automatic seat belts like those in a Chevrolet Impala are self tensioning. The extend to the full length when pulled slowly but "lock and tension" when pulled abruptly.

According to witnesses Williams was highly agitated and belligerent even before she was placed in the confines of the Chevy Impala. Williams is not of slight build so the smaller space of the Impala unlike that of a Crown Victoria may have also contributed to Ms. Williams death.

The close quarters allowed Williams to repeatedly strike her head on the Plexiglas screen, by some accounts as many as two dozen times. Had she been secured in a seat belt she may not have been able to maneuver in such a way to wrap a seat belt around her neck.

Also the location of the CMPD cruiser in relation to the brick column may have prevented Officers from maintaining a clear view of the suspect even when they were standing nearby.

Tanisha Williams apparently doesn't have a history of mental illness, she is without a history of attempting suicide in the past, and no one has yet come forward saying she had talked of taking her own life. This lack of history on one hand tends to rule out deliberate suicide and on the other hand makes it unlikely that Officers would have recognized her as being suicidal.

What CMPD Officers didn't do is recognize Ms. Williams agitated state as a possible medical condition known as "excited delirium", rather they assumed and understandably so that Williams was doing what many African Americans do when they interact with Police Officer and object to being arrested. Sadly the hysterics are common place and almost routine for CMPD Officers.

This acceptance of these common place antics may have contributed to the Officer's "indifference".

In a court case like this the usual claim is that the police officers knew or should have known the person was suicidal or in danger, but took no steps to prevent the suicide or injury. Simply failing to do enough is negligence.

However for the case to step up to a civil rights liability case, the constitutional standard is "deliberate indifference", not just negligence.

This requires that the officers knew or should have known that there was a danger, yet they took no steps either to eliminate the danger or to protect the prisoner.

As Williams continued to bang her head, Officers should have known there was a danger, and that their prisoner was acting far beyond normal. Based on the video tape (which Cedar Posts has not seen) and reports of Officers conversations recorded on the tape, there was adequate time to evaluate the situation. Had at least one officer monitored Williams rather than leave the prisoner unattended even for a short period they would have seen that she was in great risk of death by wrapping the seat belt around her neck.

At the point that Williams was repeatedly striking her head, they should have intervened, they didn't and the reason apparently as voiced by CMPD Major Vicki Foster is that opening the door would have invited further fighting.

Again indifference to the plight of Williams.

In order to reach the level of deliberate indifference the CMPD Officers needed to react to factors in error.

This involves; a knowing choice (conscious decision); time to evaluate the choices available; and an appreciation of the danger or risk.

The case has overtones of both neglect and deliberate indifference. First CMPD Officers allowed Williams to bang her head for an extended period of time, and later when she became verbally unresponsive they "assumed" she was acting.

At the point that officers asked her name, received no response and then told Williams that even if she didn't answer she was going to jail anyways, shows deliberate indifference.

But only near total neglect of a potentially suicidal prisoner will give rise to constitutional liability, even if there is responsibility under other tort theories.

The family could make one or more of the following factual arguments in support of
a civil rights claim:

Prisoner needed medical treatment, there was a failure to remove things from prisoner which she used to harm herself, Failure to monitor, Failed to respond to a problem and Lacked training.

One witness stated that Williams just snapped, as she was being arrested. According to reports it would seem as if Williams was over reacting to a misdemeanor charge. But to CMPD Officers her outbursts were just part of the day to day routine.

Would a TASER have saved Tanisha William's life?

CMPD Major Foster stated that if Officers had opened the door to check on Williams they would have had a fight on their hands. So did Officers hesitate to open the door because they didn't have TASERS and didn't want to risk a controntation? Would a TASER have saved Williams by giving her a chance to calm down and listen to the Officers commands?

Once Williams was un-responsive why didn't they open the door to check on her?

Clearly CMPD Officers failed to follow their own directives and therefore are negligent, after all they were only a few feet away and could have saved her life.

Had the same Officers stood by while a homicide occurred within a few feet of them and they failed to respond we would be calling for their badges.

However had the same Officers stood by and watched someone jump from a bridge we would be concerned that they didn't do enough, but because the subject wasn't "in custody" there would not be a civil rights case.

Simply failing to do enough is negligence. However, in civil rights liability cases the constitutional standard is "deliberate indifference", not negligence.

CMPD Officers failed to follow the department's SOP and directives therefore they were indeed negligent but the real question is, was there deliberate indifference?


Anonymous said...

This is actually a pretty thoughtful post. I do have a couple issues with it.

First, I highly doubt the race/sex of the prisoner had any bearing on what the officers did.

Secondly, Ms. Williams was not suffering from excited delirium. She was simply upset at being arrested and was acting out. This wasn't excited delirium, which is often caused by chemical changes due to drugs. Just because she was upset and acting out, does not make her suffer from excited delirium.

Third, I actually doubt the TASER would have made any difference as most officers won't use force against someone who is in handcuffs even if it is necessary by their actions.

Many times officers will arrest someone and put them in a car and then stand away from the car to complete arrest paperwork. I don't know if that was the situation here.

Since I am not involved, don't know those involved and have not seen the tape, I can't say what happened in this incident. Unfortunately for everyone involved, this will be decided by a jury. I do not believe the officers had any ill will or malicious intent. This is a sad situation for Ms. Williams' family and for the officers involved. Ms. Williams is still the one who made the decision to wrap the seatbelt around her neck. She does bear responsibility for those actions and the actions which put her in the back of a police car to begin with.

Anonymous said...

I concur with the initial post here. This will be decided in court, or more likely in a settlement conference.

I do not believe the Justice Department will consider this a Civil Rights case. If anything, the argument for negligence has already been made. The directives, in black and white, appear to have been violated. But having said that, I will wait for the report to be issued.

One final thought on a civil rights case, the history of this department and its officers don't show a predilection towards racist actions. Yes, some may feel different in our community, but the majority of our citizens don't. This history will be taken into account and for sure, this will not be the case.

Now, Major Foster's comments can be seen for what they are, a public denial. I will give the chief and the command staff the benefit of the doubt (I know, but hear me out). I think we can all agree that the police attorney vetted everything she said. Quite frankly, what are we told if we get into an auto accident, it's ingrained in us from the day we get our license, don't admit guilt. Let the investigation sort it out. I think that in this case her remarks were appropriate.

Now, for Ms. Williams. Her beligerent behavior, and that of most criminally oriented African-Americans is standard. The out rage they show and lack of respect stems far beyond the event that put her/them in the back of a patrol car. It's is a blite on the progress that has been made in the African-American community and we need to have more role models step up. This won't go away over night, but we must change this.

In any event, I do feel for the family and the officers and their families. This is a sad case and we should all take away something here.

Anonymous said...

Thanks Cedar for putting the effort to sort out a tragic event that will cause Ms. Williams's family and CMPD pain for years to come.

Directives are there for a reason, usually years of experience and wisdom and sometimes because something like this has already happened. This directive is pretty simple - just because you tossed them in the back of the car doesn't mean you are done.

I think they need to make the video public. I want to see how you wrap a seat belt around your head 3 times with your hands tied behind your back.

As for the black vs white Freedom Drive vs South Charlotte issue I think you are right to ask the question.

I'm sure it wouldn't have turned out this way. First notice the number of people just hanging around, a lot of them mouthing off.

This just doesn't happen among white folks they are far more respectful. I doubt a teenage white girl would have been charged because she would have called her parents they would have come to the store and worked it out.

But cops have no choice when you are acting up. You go to jail.

Sad all the way around.

Anonymous said...

Anon 3:35

And the background and disciplinary records of those Officers involved will have much bearing on this, also.

Like you said, a tragedy all the way around.

Anonymous said...

Just tell the truth and don't concoct bizarre stories to cover up.

It just makes it 100 times worse, and as Monroe said, destroys public trust.

Anonymous said...

You are right anon 2:17, it was a thoughtful post.

Although it must be difficult for the officers, It is a very interesting case that deserves to be considered objectively.

my question is... will the recent supreme court ruling in March 11, have any bearing on this case?

Although that case was about prosecutors, Brady violations and of a different type, they ruled that...

"The Court holds that a pattern of similar constitutional violations by untrained employees is ordinarily necessary to demonstrate deliberate indifference"

or does that ruling only apply to similar cases and not all deliberate indifference cases?

If it does apply, would Fosters comment about the officers not doing anything wrong, help create the pattern?

also, does the comment that "she is still breathing" have any effect one way or another?

Anyway, I hope the Officers involved are not going to take this personally, because it seems like a case we can all learn from.

Anonymous said...

Cedar if you step back and look at the big picture it gives you a good idea how screwed up CMPD is.

No supervisor worth his stripes would have allowed those cops to walk away from the car. They were only doing half their jobs on December 5th.

Foster and Monroe are idiots for not admitting that right away.

They hoped that they could hold off until the Christmas weekend to deal with it and expected a big bounce from the press on the low homicide numbers January 1st.

It didn't happen. You said it a week ago with your post Spin Control Out of Control.

These guys F$$Ked up. The knew it when they openned the door and yelled F$$K!

But Monroe and Foster spun the story right away by pointing out she had been arrested before, then swore up and down that the cops didn't do nothing wrong, pretty much just like Williams did going to the car.

Just sick.

Anonymous said...

It just makes me sick and really angry that Romo has been allowed to so screw up and corrupt cmpd.

Turning people against people, race against race, even friends against friends.

There is absolutely no sense of integrity, no one trusts anyone, especially there is NO trust for anyone on Executive Staff. Officers hve seen unethical conduct by these people, they have seen them lie, cheat and throw people under the bus.

Have you seen the new totally unneeded million dollar "meeting" rooms? Another wasteful project of Romo's.

He has been turned loose like a kid in a candy store by Curt Walton and City Council.....a not too bright kid in a candy store with no supervision...picture that.

The lack of training and the promotion of unqualified and inept people is already having a negative impact on cmpd.

And there is beginning to be a general feeling of "why should I work hard" and try to conduct myself with integrity when those attributes are not valued or shared by most all
of Command Staff???

It is such a shame that this real tragedy has taken place, instigated and carried out by one egotistical little man.

Anonymous said...

Sadly this young lady's ordeal MAY be what the citizens ALL THE CITIZENS of this city needed to wake up to the cover ups and corruption of CMPD.

I just hate this young lady hd to suffer the consequences of her own actions and well as the non-actions of CMPD.

Anonymous said...

Walton and the other lackeys just voted that there was no reason to ever examine if there was any extortion or other illegitimate effort to recive goods was taken on by Foxx or his aide, Tracy Montross, from the Charlotte International Cabinet on his trip to China.

This was right after a nauseating speech from Foxx about how important it was to bring things to light, deal with them, and have closure.

I think he meant how important it was to cover them up, but forgot what he was saying out loud.