Nothing sends a wake-up call about the importance of searching thoroughly like having a prisoner slash his throat in the backseat of your patrol car. Two Wisconsin deputies experienced that unnerving occurrence while transporting a mental patient to a treatment facility and ended up as defendants in a federal civil suit, accused of “deliberate indifference” to the victim’s right to life. For officers everywhere, this is a harsh reminder that small slips in tactics and making assumptions can quickly compound into a “perfect storm” of calamity.
Here’s what happened, according to court records and an exclusive interview with Robert Willis, a well-known law enforcement trainer and legal consultant hired by the deputies’ defense attorneys. As a courtesy to the officers involved, we’ve changed their names.
At about 0030 hours one spring Thursday, Deputy Tom Jones was dispatched to an upscale residence in a semirural area to meet a distraught father who had called 911 for help in dealing with his son, a mentally troubled recluse who lived in virtual isolation in the basement of the home. The subject allegedly had warned his parents that they should leave the house or “harm may come to you,” then had taken off in the family car.
During a brief canvass of the area, Jones spotted a maroon Ford Contour, creeping along “extremely slowly,” that matched the vehicle’s description. Jones followed it a way, then pulled it over. The complainant’s son — in his 30s and dressed in blue jeans and a sports jersey — was at the wheel.
As Jones talked with him through a slightly open door (the window crank was broken), the man’s mental disturbance quickly became evident. Between copious gulps of water, he advised Jones that “you’d better get me out of the car and handcuff me” because he had received an “injection” that was going to cause him to “transform into a flying fire serpent.” He expressed concerns that he “might injure people” once the “transformation” began.
Jones called for backup and the subject was detained and subsequently handcuffed behind his back — with two sets of cuffs, because of his “large stature.” Jones performed what he said later was a “thorough” pat-down, recovering a biker-style chain wallet, a lighter, and a folding-style pocketknife. The subject was “totally compliant and showed no signs of aggression.” Jones did not search further after finding the knife.
A county mental services specialist was called to the scene and more than an hour was spent trying to decide what to do with the subject. His bizarre comments alone were not enough to qualify him for emergency detention under Wisconsin law. His parents were scared to have him return home. Efforts to reach a priest he wanted to talk to were unsuccessful.
Then at about 0230, the seemingly docile subject himself provided the answer to the dilemma. Standing by the front passenger-side fender of Jones’s unit, he suddenly shook his head vigorously enough to knock his eyeglasses off onto the hood of the car. Though still handcuffed, he was able to grab them and crush the frame with his hand to pop out a lens. Then as startled deputies grappled with him, he tried awkwardly and without success to cut his wrist with the glass.
“This gave them what they needed for a 72-hour mental hold at a treatment facility,” Willis explains. “He could be considered a danger to himself or others.”
A Series of Assumptions
Now that the subject was formally in custody, Jones should have performed a full custodial search, Willis says, but without doing so he transported the prisoner to a general hospital in a nearby city for medical clearance. Apparently the deputy assumed that his previous pat-down had been sufficient. He and another deputy, rookie Joe Grey who was assigned to meet him there, stood guard in the ER examining room as medical personnel ducked in and out for a blood draw and other screening procedures.
Although Grey had had no prior contact with the subject, he did not conduct a search of the subject either, assuming that Jones, a senior officer who had been his DT instructor, had already done so.
The subject was handcuffed to the rails of his bed and his shoes were removed. He seemed calm but uncommunicative for the most part, but at one point both deputies noticed him “rolling and tossing on the gurney, apparently trying to push his rear end toward his cuffed left hand,” in Willis’s words.
Grey investigated — Jones was filling out paperwork — and retrieved a “very, very thin,” tri-fold, nylon wallet from the subject’s left-rear jeans pocket that Jones apparently had missed on his initial pat-down.
Along with some cash and a plastic discount card, Grey found a small silver foil packet in the wallet. A label on one side identified its contents as a “Surgical Blade,” but somehow Grey missed reading that small print, perhaps because the printing was obscured by his thumb as he held the item.
Because of protective padding inside, the packet “felt soft” and when he held it up for a consensus, someone in the room — Jones, the mental services specialist, the subject’s male nurse; no one admitted who later — said it looked like a “Band-Aid package.” Indeed, it was identical in shape and size to a small Band-Aid packet.
Grey had the packet in his hand for five to 10 seconds before slipping it back into the wallet and placing the wallet in the subject’s shoe, on the floor out of reach. “It did not look like any conventional weapon and was not perceived as a threat,” Willis says.
Grey said later he expected the wallet would be formally inventoried and kept away from the subject permanently. It wasn’t. Instead, as the sun was rising and final prep was being made for transporting the patient to a treatment facility about 45 minutes away, the wallet and its contents were returned to him, possibly by his male nurse. The judge who eventually ruled on the civil suit wrote that Deputy Jones “was aware that the wallet had been returned.”
A different deputy, John Smith, like Jones a long-time veteran of the department, showed up to partner with Jones for the transport. Knowing that the subject was on a mental hold, Smith should have “appreciated that there was a substantial risk that he could cause harm to himself and others,” the judge noted.
Smith brought belly chains and the subject was hooked up. Use of the chains was intended to provide more comfort to the subject, traditionally a consideration in departmental protocol when transporting a seemingly cooperative mental case.
Smith carefully searched the prisoner compartment of the Chevy Impala squad car they were going to use to make sure it was clear of potentially dangerous items. He and Jones seat-belted the subject into the right-rear seat.
But Smith did not personally search the subject, despite department policy requiring that he do so. He did not ask Jones or Grey whether they had performed a thorough custodial search. And he did not ask the subject if he had any belongings or contraband on his person.
Smith drove, Jones rode in the front passenger seat. It was a tight fit, considering the bucket seats, the computer terminal, weapons mount, rollbar, steel-Plexiglas-metal mesh partition, and all. Their view of the subject was partially blocked by shotgun and rifle barrels in vertical racks, but they thought he was asleep most of the time. “Given the configuration of the squad car, there was no way for the deputies to observe [the subject’s] hands during the transport,” the court noted. There was no rear camera to monitor his movements.
Quickly from Quiet to Calamity
Most of the trip was “uneventful,” Jones would say later. But shortly before they were to turn off the main highway to reach the treatment facility, he noticed that the subject was leaning to one side and “puffing profusely and repeatedly.” Jones asked if he was OK.
The subject said, “Yeah,” sat up, and resumed his normal breathing.
Less than three miles later as the car headed onto an exit ramp at about 0700, Jones noticed the prisoner lean over again. This time, the subject did not respond to the deputy’s voice. Smith looked in the rear view mirror and saw the man slumped over, with “a whole lot of blood” on his face and neck.
Despite his belly chain restraints, the subject had managed to access the small silver foil packet that had been discovered and returned to him at the hospital. True to its label, it contained a detachable, razor-sharp surgeon’s scalpel blade similar to that used in an X-Acto knife.
With that tiny edged weapon (about an inch long) and without uttering a sound — not a cry, not so much as a whispered whimper — the subject had slashed both wrists, had sliced through his windpipe and major blood vessels, and had cut into his spinal column. “It looked like a Taliban beheading,” Willis says.
Frantic efforts by the deputies to stanch the spurting blood with gauze pads were futile. The subject fought them until the life passed out of him. When paramedics arrived at 0712, he was “pulseless and nonbreathing.”
The Aftermath... So Far
In the wake of the incident, the deputies conceded they had made grievous errors, and the sheriff’s department issued reprimands and punishment. In a federal civil suit, the subject’s father as administrator of his estate claimed that the behavior of Jones, Grey, and Smith constituted “deliberate indifference” to his son’s constitutional rights, resulting in his death. That case became one of interpretation.
In an expert opinion, Willis argued that the “vast majority” of tasks the deputies performed during their contact were appropriate and caring. “As human beings are not perfect, mistakes were made,” he wrote. “These are not uncommon mistakes made in law enforcement; they are the subject of constant and on-going training and remediation and not unique only to this single incident... [The deputies] were not uncaring, apathetic, or uninterested and they did not intend to perform poorly or carelessly.”
In a ruling last April, Judge Patricia Gorence of the U. S. District Court in Milwaukee agreed. The defendants’ actions were “not perfect and, at times, not reasonable,” she wrote. But deliberate indifference “requires a showing of more than mere or gross negligence….” A defendant “with knowledge of risk need not take perfect action or even reasonable action….” But his action “must be reckless” before liability can be found under federal law.
The plaintiff needed to present evidence that the defendants “intentionally disregarded the known risk” to his son’s health or safety, a “high hurdle” that was not met, Gorence explained. That the deputies clearly failed to follow the policies of their agency “does not establish deliberate indifference.”
She granted the defense counsel’s motion for summary judgment, resolving the case in favor of the deputies. At this writing, the case has been appealed to the 7th Circuit Court of Appeals.
Despite the legal outcome so far, the incident has been a horror story for everyone involved, with important lessons for other officers, says Willis, a current LEO, an instructor at Northeast Wisconsin Technical College, a former Street Survival Seminar instructor, and a certified Force Science Analyst.
Lessons to be Learned
1.) Work through your hesitations about searching. “Unfortunately, searching is not an easy task,” he acknowledges. “Legal restrictions, practical restrictions, the human attention span, physical limitations, distractions, environmental concerns, worries about disease and blood-borne pathogens, time considerations — these are just a few of the variables that can cause a search to be faulty or incomplete. But it’s critical to get past these in order to search thoroughly, which in most cases will only take a minute or two.
“The Police Memorial Wall in Washington is replete with the names of officers who were killed by suspects who were ‘searched’ but still had weapons concealed on their persons. In this case, the subject ended up being the victim, but most often it’s an officer’s life on the line when a weapon is missed.”
2.) Embrace re-searching. “Every time a different officer comes in contact with a given suspect, the subject should be searched again,” Willis says, as the deputies’ department specifies.
“Presuming that an adequate search has already been done, being intimidated by another officer’s rank or seniority, or drawing conclusions about the totality of circumstances can be fatal errors. Satisfy yourself that any subject you’re coming in contact with at any point in the chain is clean of contraband. And if you’re an officer who has already searched a subject, don’t take offense when other officers want to search him too.”
3.) Don’t limit your expectations. “Apparently the small foil packet recovered in the hospital room did not fit the ‘paradigm’ of a weapon to the deputies involved, so they failed to examine it closely,” Willis says. “Too often officers think only of guns, knives, or needles as potential weapons, but every item recovered bears inspection. An endless list of things can be dangerous in the wrong hands, and appearances can easily be deceiving.”
4.) Separate suspects and their property. “Once possessions have been removed from a subject who’s in custody, they should be bagged and kept away from the individual, even if the property does not appear to be dangerous,” Willis says.
5.) Don’t under-estimate the potential danger of EDPs. “Crazy people can do really, really crazy things,” Willis says. “Their demeanor can change in an instant from almost catatonic to violently manic. Just because a subject seems to be calm doesn’t mean he can’t be a threat in a few seconds. Just because they’re not hardened criminals doesn’t mean they can’t have deadly intent. And just because you’ve dealt with a subject previously without incident, as is often the case with mental-health transports, doesn’t mean that this time can’t be different.”
6.) Remain vigilant through a transport. “In the Street Survival Seminar we used to discuss a phenomenon that was documented by the U.S. Marshals Service,” Willis recalls. “They found that subjects were more likely to do something violent as the transport got closer to its destination, while the transporting officers tended to let down their guard as the trip headed toward its conclusion.
“The only time you can relax is after you’ve handed over custody to someone else. Until then, constant vigilance is required.”
He adds: “It’s important to note that the errors and omissions made by these deputies are common to law enforcement in general: failure to communicate, assumptions, minor tactical errors, not following policy, perhaps because you think it’s ‘dumb’ or just departmental CYA. Many officers will read this article and will say, ‘I would never make those mistakes,’ but in reality we all have.”
