Not Above the Law

The family of an unarmed man who died in police custody will finally get to argue their complaint before a jury, thanks to a federal appeals court's ruling against the city of Cincinnati.

Nearly five years have passed since Roger Owensby Jr. died in a Sunoco parking lot, asphyxiated during a struggle with officers Patrick Caton, Robert Jorg and David Hunter (see "Piling On," issue of Oct. 3-9, 2002).

But the ruling has meaning beyond the Owensby family and the Cincinnati Police Department. While the long delay has deepened the family's sense of injustice, the ruling comes at an apt time for a society that's reeling from political terror and trying to decide how much power to give law enforcement.

In a ruling last week, a three-judge panel of the 6th U.S. Circuit Court of Appeals rejected the city's claim that officers involved in Owensby's death enjoy qualified immunity from civil liability. The appeals judges not only affirmed a lower court's finding that the cops lost that immunity because of the nature of their conduct but also refused to overrule a finding that the sovereign immunity statute violates the Ohio Constitution.

The appeals court's summary of facts in the case gives a chilling account of what happened to Owensby in that parking lot. Thinking Owensby was the same man who had escaped from Hunter a few weeks before, the three officers tried to arrest him. A struggle ensued.

"Jorg placed Owensby in a 'head wrap,' employed a 'mandibular angle pressure point pain compliance technique' and placed his knee on Owensby's left shoulder," the appeals court wrote.

Officer Darren Sellers arrived and helped handcuff the suspect.

"Allegedly after Owensby was handcuffed, however, Caton demanded that Hunter spray mace at him," the appeals court wrote. "Hunter instructed Jorg to lift Owensby's head so that he could mace him directly in the face. Jorg pulled Owensby's head up, turned his own head away and drove his knees into Owensby's back. Despite a police policy directing officers to spray chemical irritants 'five to 10 feet from an individual,' Hunter proceeded to spray mace directly into Owensby's eyes and nose from a distance of six inches, and he did this twice. ... Furthermore, despite Owensby's lack of resistance, Sellers and Hunter saw Caton repeatedly strike Owensby in the back, ceasing only after Hunter exclaimed, 'What the hell is he doing!"

Frightening as that scenario is, the police lost their qualified immunity not for the way they arrested Owensby; a jury will have to decide if they used excessive force. The immunity was lost because of what happened next. After bundling Owensby into a squad car, no one bothered to provide first aid or obtain medical care for the dying man.

"At this point, at least 11 Cincinnati Police officers and two Golf Manor officers were either on the scene or in the immediate vicinity — three of whom were trained emergency medical technicians — yet no officer attempted to provide any medical care to Owensby," the appeals court wrote. "Instead, the uncontroverted testimony indicates that the officers greeted each other, secured items that might have been dropped, prepared for the arrival of their supervisors and made sure that their uniforms were intact."

The appeals judges affirmed the lower court's finding that the denial of medical care to the prisoner was a violation of the 14th Amendment to the U.S. Constitution.

Sending the case to trial will allow a jury to decide whether police violated Owensby's rights and, if so, how that violation should be compensated. Perhaps more important, though, the ruling is a reminder that police agencies don't have carte blanche to fight crime in any manner they choose.

We have the right to be safe from police on a rampage, even as we have the right to be free from other types of crime.