Slow justice for family of man who died in squad after telling police "I can't breathe"

By Margo Kirchner
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The lawsuit brought by the estate of the man who died in the back seat of a squad car after repeatedly complaining that he could not breathe may face months of delay as the case bounces between the federal trial and appellate courts, thanks to an opinion last week by the Seventh Circuit Court of Appeals.

Derek Williams Jr. died in the back seat of a Milwaukee Police Department squad car on July 6, 2011. Officers failed to call for medical help for Williams until after he collapsed and stopped breathing. By then he could not be revived.

In July 2016, Williams’ estate and three children sued 10 officers for failing to attend to Williams’ medical needs while in custody and for wrongful death. The plaintiffs also sued the City of Milwaukee, claiming that its unwritten policies and practices caused Williams’ death.

U.S. District Judge J.P. Stadtmueller held in August 2017 that the case should go to trial. He rejected the officers’ summary judgment motion, which argued that the qualified immunity doctrine bars suit against them.

Under long-time U.S. Supreme Court case law, qualified immunity protects public officials from civil liability unless their conduct violated a clearly established constitutional right that a reasonable person would have known. The doctrine balances the need to hold public officials accountable when they act irresponsibly with the need to shield them from liability when they perform their duties reasonably.

The officers appealed to the U.S. Court of Appeals for the Seventh Circuit.  That court ruled last week that it could not decide the officers’ appeal because Stadtmueller failed to analyze qualified immunity for each officer individually; his decision addressed their actions as a group. The appeals court remanded for further review by Stadtmueller, setting up another opportunity for the officers to appeal if Stadtmueller again rules against them.

Friday’s appellate opinion was issued about 13 months after Stadtmueller’s initial ruling. Statistics available on the U.S. Courts’ website peg the median length of an appeal in the Seventh Circuit at eight months.

Senior U.S. District Judge Robert W. Gettleman of the Northern District of Illinois, sitting as a guest on the Seventh Circuit panel, authored the appellate opinion, joined by Seventh Circuit Judge Joel M. Flaum. Seventh Circuit Senior Judge Kenneth F. Ripple agreed that Stadtmueller did not properly consider each officer individually but dissented on other grounds.

Because of the summary-judgment stage of the case, all disputed facts were taken in the plaintiffs’ favor. Plaintiffs’ evidence showed that shortly after midnight on July 6, 2011, Williams was walking north on Holton Street in Milwaukee. He wore a mask and held a cell phone under his clothing, making him appear armed. Four officers in two squad cars noticed Williams as he approached a couple from behind and believed they were witnessing an attempted armed robbery. When one squad car stopped, Williams ran. An officer chased Williams on foot while both cars followed, and additional officers responded to the scene.

Williams was a 22-year-old African-American male in good physical shape. He ran 200 to 300 yards and jumped over a fence. After about eight minutes officers found him in a back yard; both Williams and the chasing officer were breathing heavily. After a brief struggle, two officers pulled Williams down onto his back and flipped him over to apply handcuffs, with one officer kneeling on Williams’ back. Williams said he could not breathe, at which point the officer lifted some of his weight off of Williams. A recorded radio call of an officer telling dispatch that Williams was in custody captured Williams complaining that he could not breathe.

Williams went limp as officers lifted him up. Williams was unresponsive, breathing heavily, and sweating, but the officers thought he was faking any distress. After they used a painful procedure to determine consciousness, Williams opened his eyes and told the officers that the two alleged victims were his friends and he was “just playing around” with them. Williams again complained about not being able to breathe. Neighbors heard his complaints and heard an officer tell Williams to “shut up.”

After five minutes the officers moved Williams to the front yard, where he went limp again and had to be dragged. Officers told him to stop “playing games” but Williams again said he could not breathe. A neighbor heard Williams say he could not breathe while officers cursed at him. Another neighbor called 911 but was told that paramedics would not be sent unless officers called for them.

Friday’s appellate opinion was issued about 13 months after Stadtmueller’s initial ruling. Statistics available on the U.S. Courts’ website peg the median length of an appeal in the Seventh Circuit at eight months

The arresting officers placed Williams in the rear seat of a squad car but did not discuss Williams’ condition. Although the officer sitting in the driver’s seat turned on a back-seat video recorder, he failed to activate a feed to observe Williams on his computer screen. Nor did he turn to look at Williams.

Williams again said he could not breathe, that he was dying, and that he needed an ambulance, but the squad officer told Williams he was “breathing just fine” and “playing games.”

Nevertheless, the officer rolled down the window and turned on the air conditioner. A witness saw Williams rocking around in the back seat and heard him say he could not breathe. According to the Seventh Circuit, the recording of Williams in the back seat “shows him in obvious distress, eventually collapsing onto the door of the car.”

The squad officer was replaced with another, but the two did not discuss Williams’ breathing complaints and the video feed remained off. When the second squad officer turned to look at the back seat, Williams was slumped over. The officer checked Williams and found no pulse or breath, but he did not call for medical assistance. Instead, he unsuccessfully looked for help at another squad car and then radioed other officers. Finally, a responding officer called for medical help approximately 12 minutes after Williams was placed in the car and three minutes after he was found motionless.

An officer began CPR and paramedics took over, but Williams was declared dead at 1:41 a.m. The Milwaukee County Medical Examiner determined the cause of death as sickle-cell crisis triggered by Williams’ flight from and altercation with police, though another medical expert said the cause of death is indeterminable.

As noted by the Seventh Circuit in its opinion, qualified immunity does not protect a public official from suit when (1) the official violated a constitutional right and (2) that right was clearly established at the time of the challenged conduct.

Plaintiffs claim that the defendant officers violated Williams’ Fourth Amendment right to receive reasonable medical care while in custody.
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The officers conceded that calling an ambulance would not have compromised any police interest or been burdensome. Therefore, the Seventh Circuit stated in its opinion, to establish the constitutional violation the plaintiffs had to show only that the officers had notice of Williams’ medical need and that the medical need was serious. 

Stadtmueller found that plaintiffs presented such evidence. Further, Stadtmueller found that an arrestee’s right to objectively reasonable medical attention was clearly established by at least 2007.

The Seventh Circuit, however, said that Stadtmueller improperly grouped the actions of the officers together when he assessed the case.  According to the court, “each defendant-officer had a different degree of contact with Williams and had different assigned responsibilities with respect to the apprehension of Williams and investigation of the alleged armed robbery. Although the district court’s recitation of facts acknowledges the officers’ varying encounters with Williams, its qualified-immunity analysis lacks any individualized assessment.”

The court remanded, directing Stadtmueller to articulate his qualified immunity analysis officer by officer. Only then, said the Seventh Circuit, can it review the officers’ appeal.

Trial was previously scheduled for late August 2017 but postponed due to the appeal. The  claims against the city were not part of the appeal and remain pending for trial.

It is unclear how much delay this do-over will cause. District courts generally cannot act on a remand until receipt of a document called a “mandate,” which often issues a few weeks after an opinion. Stadtmueller could act quickly, without additional briefing, but if he rules that any individual defendant is not protected by qualified immunity, that defendant could appeal again.