Editor’s note: This story by Mark Davis is used with permission from the Valley News where it originally appeared on July 27.
An unarmed Wilder man who was beaten and pepper-sprayed by Hartford police inside his home filed a federal civil rights lawsuit yesterday against the officers and town officials, alleging that they targeted him with excessive force because he is African-American.
More than two years after police were called to his townhouse on an erroneous report of a possible burglary, Wayne Burwell accused officers of a slew of civil rights violations when they brandished firearms and struck him with a baton after finding him naked, unresponsive and sitting on his toilet while in a comatose state.
“When police entered that bathroom, if they saw a white guy sitting there comatose, they would have assumed a medical emergency,” said Orford attorney Ed Van Dorn, whose firm represents Burwell. “But because they saw a black guy sitting there, they assumed burglar and criminal activity.”
Summoned to Burwell’s home by a housekeeper who did not recognize him, police never received reports that the man was armed or had harmed anyone. Three Hartford police officers entered Burwell’s home with their guns drawn.
“Show your f—ing hands up or I’ll shoot you motherf—–,” Officer Fredrick Peyton told Burwell upon first entering the bathroom, according to a police audio recording of the encounter that was filed in federal court as part of the lawsuit. “Put your hands up now,” the officer shouted. “Show me your f—ing hands.”
In the subsequent moments, Peyton and Officer Kristinnah Adams screamed at Burwell 30 times to “put your hands up,” or “keep your hands up.”
But Burwell was essentially in a diabetic-like coma — he later learned that he had a benign tumor on his pancreas that caused his blood sugar levels to periodically plummet — and unable to respond.
“He’s sitting there comatose,” Van Dorn said. “All you have to do is look and see he’s unarmed.”
With Burwell failing to respond to their commands, Peyton and Adams showered him with pepper spray — Peyton later told investigators that he emptied his canister — and hit him with a baton approximately seven times. The audio recording captured one of the officers grunting as the blows were delivered.
The lawsuit, filed in U.S. District Court in Burlington, alleges 12 counts of wrongdoing, including excessive force, illegal detention, racial discrimination and negligent training. The defendants named are Peyton, Adams, officer Scott Moody, who was also on scene, former Police Chief Glenn Cutting, and the Town of Hartford.
Hartford Town Manager Hunter Rieseberg and the town’s attorney, Nancy Sheahan, declined to comment yesterday. Cutting, who retired in March, could not be reached for comment, and Acting Police Chief Leonard Roberts did not respond to a request for comment.
Burwell is seeking unspecified punitive and compensatory damages. A hearing has not been scheduled.
In addition to suing over activities that occurred inside his home, Burwell is claiming that the Hartford Police Department has demonstrated a “pattern” of allowing officers to use excessive force and violate residents’ constitutional rights. He cited two other incidents — involving former Shady Lawn Motel resident Monica Therrien and Quechee homeowner Darrek Daoust — in which Hartford police have been accused of using excessive force against unarmed citizens who were never criminally prosecuted.
In an interview last week, Burwell said that he struggled for several months over whether to pursue the lawsuit, but decided to file it because he said the Hartford Police Department has demonstrated a lack of accountability.
“No one involved has ever taken any responsibility,” Burwell said. “They’ve not shown they have learned anything from this. The culture inside the system hasn’t changed.”
After Cutting invited Vermont State Police to investigate his officers’ conduct in the Burwell case, Attorney General William Sorrell cleared them of criminal wrongdoing in November 2010.
“We’re pleased with the finding, although I don’t think we’re very surprised,” Rieseberg told the Valley News after Sorrell announced his decision. “We’re particularly pleased for the public. We hope that these results will eliminate any questions on their mind as to the behavior of the officers of the Hartford Police Department.”
In past two years, Hartford officials have repeatedly said that officers did nothing wrong.
“I’m very confident that the police are acting professionally and not using excessive force. I don’t think there’s any racism or excessive force at all,” said former Selectwoman Bonnie Latham, one of several board members who said that they reviewed recordings of the incident.
In his 20-page lawsuit, Burwell and his attorneys said that police violated protocol even before they used force. Police had received information from the 911 call and from people on scene — including a retired New Jersey police detective — that should have signaled they were dealing with a medical emergency, and not a crime, the lawsuit claims.
“There was somebody sitting on the toilet in there, and we don’t know if it’s the person that owns the house, that, you know, maybe he’s sick or something,” housekeeper Holly Thomas said, according to the lawsuit. “I’ve never seen the guy that lives there,” she added.
Jennifer Dean, who owned the housekeeping business and knew Burwell personally, then arrived on the scene, and told authorities she didn’t see any reason for panic — she even volunteered to go inside to see what was amiss.
“I don’t even know why they called you,” Dean told a police dispatcher.
Burwell’s attorneys allege that when Moody, Adams and Peyton arrived, they violated protocol by failing to establish a secure perimeter or contain the scene “or do anything else to deescalate the situation.”
Instead, the officers entered the townhouse with their guns drawn.
Neighbors told the officers that Burwell had been unconscious in his bathroom just a few weeks prior, and that when he had been discovered, his home had looked “ransacked.”
“Why do you have your gun out?” the housekeeper asked the officers.
“We don’t know who this guy is,” one of them said.
After he was pepper-sprayed, Burwell fell into a nearby bathtub, Peyton told investigators, and then began moving toward the officers. Van Dorn said that the pepper spray caused Burwell to flail in an “instinctive reaction,” to avoid the spray.
Adams tried to handcuff Burwell, but Adams and Peyton said he pushed them away and prevented the handcuffs from going on. Eventually, they subdued Burwell.
Moody, who had entered the home with a rifle, eventually walked outside and began talking with neighbors and others who had gathered in front of Burwell’s home. (Many had been there when police first arrived on the scene.) Moody learned that Burwell lived in the home with his daughter.
“Where’s his daughter?” Moody then asked, while in the presence of his fellow officers.
“Where does (Burwell) live?” Adams asked.
“Here,” Moody said.
“Here?” Adams said.
“Yep,” Moody said.
“Are you serious?” Adams said.
The officers then dragged Burwell outside in a blanket and began treating him for the pepper spray. He remained handcuffed until other officers arrived at the scene. He suffered a small cut on his wrist and was transported to Dartmouth-Hitchcock Medical Center in an ambulance.
Burwell is a Dartmouth College graduate and former track athlete at the school. He owns a gym in Lebanon, where his clients over the years have included hundreds of high school and college students. In 2011, citing his work with the school’s athletes, Hanover High School picked him to deliver the commencement address.
Police have previously said they used force because Burwell’s hands were behind his back — potentially concealing a weapon — and because he physically engaged him.
“The male was unclothed, extremely muscular, sweating profusely, and appeared to the officers to be in some kind of drug-induced state,” Sorrell wrote in his report exonerating the officers. “He was sitting on a closed toilet seat cover, leaning back, with his hands hidden from view. The male individual was extremely strong, actively resisting and the officers had difficulty trying to subdue him.”
Burwell’s claims are based largely on evidence taken from video and audio recordings taken by police officers and internal reports from the Hartford police and Vermont State Police. Hartford police have battled in court for more than two years to keep those recordings and documents confidential and have repeatedly rejected requests filed under Vermont’s public records law by the Valley News and other organizations to release them to the public.
The Vermont chapter of the American Civil Liberties Union sued Hartford for refusing to turn over the documents. That case is currently before the Vermont Supreme Court, and justices could issue their ruling any day, though a decision is not expected for six months to a year. Anne Galloway, editor of VTDigger.org, is the plaintiff in the public records lawsuit.
In both the audio recordings and in written accounts provided in the lawsuit, officers never mentioned Burwell’s race.
In an interview, Van Dorn acknowledged that the claim that officers’ actions were rooted in racism is based on “circumstantial evidence,” but said he was confident that a jury would side with Burwell.
“Even if he was white, we think they used excessive force,” Van Dorn said. “(But) we think the jury will conclude that no, they would not have treated him the same way.”
Van Dorn said he has been negotiating for months with the town, in hopes of reaching a monetary settlement. Burwell, he said, has been hesitant to step into the spotlight that a civil rights lawsuit would bring. But Van Dorn said, the town did not demonstrate a willingness to enter into a fair settlement, and Burwell concluded he had no choice.
“We stopped negotiating with them a while ago and he was hesitant to bring the lawsuit because of his position in the community,” Van Dorn said. “But since the town has been unwavering in its position, we came to the conclusion that we had to bring this lawsuit.”
Valley News Staff Writer Jim Kenyon contributed to this report.