FORT LAUDERDALE — Sheila McCray, a 55-year-old homeless woman who suffers from a bipolar mental condition and was shot five times by police in a case of mistaken identity, is representing herself in a federal excessive-force lawsuit after her lawyer pulled out of the case.
A Sept. 19 ruling from U.S. District Court Judge Federico A. Moreno allowed McCray’s former attorney, Marcos Gonzalez-Balboa, to withdraw from the case.
The ruling means McCray is pro se, or acting as her own attorney and representing herself in the lawsuit, filed on March 13, 2008, which alleges that police used excessive force and violated her civil rights.
The case grew out of an incident more than four years ago in which police believed she was the armed-and-dangerous male suspect they were pursuing. She was shot as she slept under a blanket behind an apartment complex, after police say she reached from under the blanket for a shiny object – as yet unidentified – that officers mistakenly thought was a gun. She suffered multiple injuries, including a broken left arm that required surgery, as well as a broken leg.
In her first interview about the incident, McCray disputed the officers’ accounts and said she wants justice.
“I remember seeing the police running at me and screaming when they just started shooting,” McCray told the South Florida Times in an exclusive interview. “I didn’t know what was going on, and they never told me come out until after they had pepper sprayed and shot me. I couldn’t talk or breathe and that’s why I was not able to move.’’
In addition to the city, officers John Loges, Jim Polan, Raul Diaz, Rafael Fernandez and Paul Cristafano are named as defendants in the case. Attorney Alain Boileau of the Adorno & Yoss law firm, is defending the city of Fort Lauderdale.
Boileau declined comment, but has filed several motions to have the case dismissed. According to federal court records, the judge has yet to rule on the motions, and no counter motions have been filed by, or on, McCray’s behalf.
On Sept. 25, McCray wrote to the judge, asking how much time she will be given to find another attorney. The judge has yet to respond to that letter, but a ruling on the city’s motion to dismiss could come at any time, possibly ending McCray’s efforts to be compensated.
POLICE ACCOUNT
The incident began to unfold in northwest Fort Lauderdale on March 19, 2004 and into the early hours of the next morning. A man known to police to be violent had reportedly fired gunshots into the air as the police department’s anti-drug Northwest Raiders unit was working the area.
Officers cordoned off streets and began a block-by-block search of the area. That’s when they happened upon someone covered with a blanket behind an apartment building at 1233 N.W. 5th Ave.
According to investigative files and court documents, after officers issued repeated calls for the person to come out, they released canisters of a chemical pepper spray. They then set off flash explosives next to the person. The explosives are designed to stun suspects with loud noise and light. Police did not get any reaction.
After nearly two hours, officers say they saw the person reach from under the blanket to retrieve something. They described it as shiny and cylindrical. Some news accounts said the object could have been anything from a vegetable can without a label to a wine bottle, items that were found later at the scene.
At the time of the shooting, however, police said they believed it was a gun, and one officer fired his assault rifle. Another emptied his Sage gun, a weapon that lobs non-lethal but powerful oblong rubber bullets.
Another officer climbed atop the roof of an adjacent apartment building to get a better view, and confirmed the person under the blanket was a woman, not the suspect they were seeking.
When officers removed the blanket, they found McCray, disoriented and nude from the waist down. The shot fired from the assault rifle had apparently missed, but McCray suffered numerous other injuries. She was transported to Broward General Medical Center.
Instead of treating her injuries, workers involuntarily hospitalized her under the Baker Act, out of fear she could be a danger to herself due to a mental disorder.
As a result, she was taken to a mental hospital, but doctors sent her back to Broward General for treatment. For more than 12 days, McCray said, she was in pain and did not receive treatment for her injuries until her family got involved.
Her family’s involvement led to surgery on her arm, where screws now hold her bones together. Her arm bears the tell-tale scars from the surgery, and she strides with a limp and an uneven gait due to the broken leg.
OFFICERS CLEARED
The Internal Affairs investigation cleared the officers and found the shooting was justified. John Loges, the officer who fired the assault rifle, told investigators he was “distraught” over his missed shot because he believed officers were in danger and were about be shot themselves.
He was required to take 24 hours of training on discretionary shooting.
McCray’s former attorney said she has a compelling case, but due to costs involved and other circumstances, both of them agreed she should seek new counsel.
“I represented her initially when the lawsuit was filed, but some of the officers involved were shipped out to Iraq,’’ Gonzalez-Balboa said. “The original judge abated and delayed the case, so I dismissed it, and when they came back, I re-filed it so we could try to get punitive damages.’’
LAWYER WITHDRAWS
But, he said, “when the second lawsuit was filed, she and I had some differences, so I had to withdraw. She has a good case, and even before I withdrew, I talked to several people and other lawyers to see if I could get her some help, but no one wants to take the case.’’
McCray said she was seeking a new attorney due to her inability to reach Gonzalez-Balboa, and because of her concerns about the lack of updates and progress in the case.
“I tried to find him for months, and when I did, he didn’t have any explanations for me, so I told him I would find a new lawyer,” McCray said.
In addition to those issues, McCray said she wanted to take legal action against the hospital for refusing to treat her injuries. She believes the delay contributed to the permanent disfiguration of her limbs, and she was under the impression Gonzalez-Balboa was addressing it.
Gonzalez-Balboa said he had his own challenges with McCray.
SOVEREIGN IMMUNITY
“I’ve had to track her down and it’s been very difficult to find her, because she is homeless at times,” he said. “She has some expectations that are not realistic. Even if we get a judgment, there is the question if she can ever collect due to the sovereign immunity issue. I’m always anxious to help her out, but there is only so much I can do.’’
Under Florida law, sovereign immunity limits an injured person’s ability to recover damages to $100,000. Any amount above this must be approved by the state Legislature through a special law called a Claims Bill.
McCray said her efforts to get local churches and civil rights organizations involved in her case have been unsuccessful, but she intends to press on alone, if she must.
“This has been a rough time,’’ McCray said. “I mean really rough. For someone to be shot up and permanently hurt and no one cares is not right. I didn’t do anything wrong.”
EJones@SFLTimes.com
Photo by Elgin Jones/SFT Staff. Sheila McCray
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