Immunity for BSO deputies rejected

“The BSO did not suspect any criminal activity. They knew that the decedent had been in a vehicle accident. Despite this, they threw him to the ground, lay on top of him, and hogtied him,” Judge Martha C. Warner wrote for the majority in the Fourth District Court of Appeal’s 13-page opinion.

“Such use of force against a person who has committed no crime and is not a danger to others has been established in the foregoing case as excessive. The trial court erred in granting summary judgment as a matter of law on the qualified immunity of officers,” the court said.

But the court ruled that the paramedics, who at the time were not a part of the sheriff’s office, had qualified immunity, and dismissed the county from the case.

BSO did not respond to questions about the court’s opinion and it is unclear whether there will be any effort to settle the case or proceed to trial.

Brown, a 37-year-old businessman, suffered a seizure while driving on Oct. 15, 2001. His SUV crashed through a fence at the Swap Shop Flea Market in Fort Lauderdale and landed upside down, trapping him in the vehicle.

Emergency personnel who freed Brown from the wreckage said he became combative, forcing them to subdue and restrain him by hog-tying. But several witnesses have disputed that claim, saying Brown was beaten, placed in a chokehold and wrestled to the ground without cause.

Brown was then strapped face down on a stretcher and taken to a hospital emergency room where staff discovered he was not breathing, did not have a pulse and was covered in his own fluids. They argued with deputies, who at first refused to untie him. Attempts to revive Brown were unsuccessful and he was pronounced dead. Based on what had taken place, hospital staff took the unusual step of calling police and a homicide investigation was opened.

An autopsy determined Brown suffocated as a result of being hog-tied, but concluded his death was

accidental. A homicide investigation and grand jury reached the same conclusion.

Brown’s widow, Alverna, filed a civil lawsuit in 2003 against BSO, Broward County, which then had responsibility for fire rescue, the Swap Shop Flea Market and the individual deputies and paramedics she claimed were involved in the death of her husband.

Broward Circuit Court Judge Patti Englander

Henning dismissed the lawsuit, saying emergency personnel had “absolute immunity.” Her ruling was overturned on appeal and sent back to the trial court. Henning recused herself this time due to an undisclosed conflict. The new judge, John Bowman, also dismissed the case, ruling that emergency personnel had “qualified immunity.”

In its ruling on the paramedics, the appeals court said  Brown was confused, disoriented and uncommunicative when he was approached by fire rescue personnel. “By the time they began their treatment of him, he was already immobilized by the BSO deputies. Therefore, the show of force had already taken place.”

Michael Winer, the attorney representing Brown’s widow, disagrees with that opinion, saying the facts of the case “do not support those conclusions.”

In fact, according to testimony given in depositions and statements taken in a BSO homicide investigation, fire rescue personnel did assist in restraining and hog-tying Brown and even provided the straps used to tie him up.

“I’m pleased with the ruling but have concerns,” said Winer. “The appellate court, in a rare move, withdrew its initial opinion and substituted it with another opinion, so a jury can consider the testimony of eyewitnesses who say the police, firefighters and paramedics kicked, beat, choked and hogtied Mr. Brown while he was having a seizure.”

Meanwhile, the civil rights organization People for Equal Rights and Justice Inc. (PFERJ) and its president, the Rev. Dennis Grant, have called on Gov. Rick Scott to appoint a special prosecutor to reopen the criminal investigation into Brown’s death. Scott is reviewing the matter and has yet to reach a decision, according to a spokesman.

Photo: Oral Brown