Wednesday, April 19, 2006 01:33 am
Judge allows most claims to be pursued in Sallenger case
The mother of a mentally ill man who died after being taken into custody may proceed with her most significant claims against three Springfield police officers, a federal judge has ruled. In a recent opinion, U.S. District Judge Jeanne E. Scott rebuffed key points in the city’s motion for summary judgment, clearing the way for Mary Sallenger, mother of Andrew Sallenger, to proceed with excessive-force and wrongful-death claims against SPD officers Brian Oakes and Jason Oliver, as well as Sgt. James Zimmerman. In April 2002, the three officers were dispatched to Sallenger’s home, where Sallenger was experiencing a severe psychotic episode. His sister, Kim Nolan, told the 911 dispatcher that her brother was “schizophrenic bipolar manic depressive” and asked for paramedics to be sent to the home. Instead, only SPD officers answered the call. They arrived to find Sallenger sitting cross-legged in his bedroom, mumbling about fishing and the colors blue and purple. When the officers entered the bedroom, he lunged at Zimmerman. Oakes responded by spraying Sallenger with oleoresin capsicum — pepper spray. The three officers struggled to subdue Sallenger, striking him with their fists and flashlights before getting enough control to place handcuffs on him. But even after Sallenger was handcuffed, the officers struck him several more times and used a hobble to hog-tie him. Sallenger was on his knees, bent face-down over his bed, when other officers arrived on the scene and noticed that he wasn’t breathing. SPD officers and emergency medical personnel administered CPR and transported Sallenger to the hospital, but he died a day later, never having regained consciousness [see Dusty Rhodes, “Why Andy won’t die,” March 13, 2003]. The Sangamon County coroner’s inquest concluded that Sallenger died as a result of “agitated delirium” and other natural causes. However, an expert witness hired by Sallenger’s family convinced Scott that “positional asphyxiation” may have contributed to Sallenger’s death. “Andrew’s heart stopped because it was beating quickly after the struggle, and needed more oxygen but could not get it because Andrew was pinned against the bed and his diaphragm could not expand,” Scott wrote. In ruling on summary judgment, courts consider the evidence in the light most favorable to the side opposing the summary judgment — in this case, Mary Sallenger. “In that light,” Scott wrote, “the evidence is that the officers delivered repeated, closed-fist blows and blows with flashlights to the back of Andrew’s shoulders and thighs after Andrew was handcuffed, that the officers continued to strike Andrew and hobbled him after he had stopped trying to kick or move, and that the officers did not immediately put him on his side, to assist his breathing, after hobbling him. The Court concludes when the evidence is viewed with these assumptions, that the officers’ use of force was excessive.” Scott also concluded that the officers were not entitled to qualified immunity for the blows they dealt after Sallenger was handcuffed or for their failure to position him on his side immediately after hobbling him. She let stand the claim that officers intentionally inflicted emotional distress on Sallenger. Such claims can be appealed immediately, and the city has filed an appeal to the Seventh Circuit. But Peoria attorney David Kleczek, who represents Mary Sallenger, says that the Seventh Circuit has recently been denying qualified-immunity claims, and he’s optimistic that the case will go to trial this year. The city won a portion of its motion. Scott denied the family’s claim that the officers attempted an unlawful arrest and then failed to obtain medical assistance for Sallenger. Scott also denied the family’s claim that the city failed to train officers to handle the mentally ill or the proper use of a hobble. Finally, the judge dismissed the Sallengers’ claims that the city engaged in a pattern and practice of discriminating against the mentally ill. Former Police Chief John Harris was also dismissed from the lawsuit. As a result of this incident, SPD took steps to ensure that such a tragedy would never happen again. In the months after Sallenger’s death, Harris issued a directive prohibiting the use of hobbles such as the one used on Sallenger. And SPD established a “critical-incident team” — a corps of officers specially trained to deal with the mentally ill. “It’s a very important program to the officers, and it’s a great tool on-call,” says Lt. Doug Williamson. Unlike some specialties, for which the department must wheedle officers into qualifying, CIT training draws plenty of interested officers. “We have people standing in line that want to go to the training,” Williamson says. So far, none of the officers involved in Sallenger’s death has taken the training. This week, Oakes was promoted to detective.