Updated Feb. 1 at 3:54 p.m.
The mother of a teenager has filed a lawsuit against the city of Burlington, alleging that members of the police department used excessive force and discriminated against her son, who is Black and has behavioral and intellectual disabilities.
The lawsuit, filed Tuesday in Chittenden County Superior civil court in Burlington, stems from a May 15, 2021, incident in which police officers restrained the then-14-year-old and called in paramedics, who subsequently covered his head with a mesh bag and injected him with the dissociative anesthetic ketamine.
“This is not a story where police were responding to an emergency,” said Hillary Rich, an attorney for the American Civil Liberties Union of Vermont, which is representing the mother, along with the law firm Latham & Watkins LLP. “This was a case where the police created a crisis themselves and at every step of the interaction chose to disregard their own internal policies.”
Cathy Austrian called Burlington police after learning her son had stolen vape pens from a convenience store, according to the lawsuit. A press release from the ACLU states that she “believed and expected this would be a learning opportunity” for her son.
Two officers, Kelsey Johnson and Sergio Caldieri, responded to the call, according to the lawsuit, and “needlessly and aggressively escalated the encounter” when the boy did not relinquish the last stolen vape pen. The officers pinned him to his bed, taking it from him forcibly, according to the suit. Body camera footage shows the teen subsequently lunging toward the officers, swinging his arms, at which point officers again pin him down before calling for backup, which included Sgt. Michael Henry. At Austrian’s request, the police also called in paramedics, who put a mesh bag — known as a “spit hood”— around the teen’s head and sedated him.
Austrian later submitted a complaint to the police department. The Burlington Police Commission, a body tasked with oversight of the department, concluded that there were “several violations” of department policy, according to Stephanie Seguino, who was on the commission at the time.
Seguino did not elaborate on the violations except to say, “Our concerns and the policies we looked at were related to police interactions with people with diminished mental capacity, policies related to interacting with juveniles, policies related to de-escalation, and the fair and impartial policing policy.”
In a statement to VTDigger, Samantha Sheehan, Mayor Miro Weinberger’s communications director, said, “The City investigated this incident through a robust oversight process that included the Police Commission and a review by the Mayor consistent with his 2020 Executive Order, and found that the police officers and first responders from the fire department all acted according to City policy as well as state law and regulations.”
Sheehan added, “We expect to vigorously and successfully defend against the allegations set forth by Ms. Austrian.”
Burlington police deferred to the mayor’s office when asked for comment. Austrian, through the ACLU, declined to be interviewed.
Austrian’s son — whom she began fostering when he was 5 months old and eventually adopted — has an intellectual disability, meaning his intellectual quotient (IQ) is under 70, the lawsuit said. The teen, identified in the court document as “J.A.,” has also received diagnoses of attention deficit/hyperactivity disorder, oppositional defiant disorder, anxiety, and complex trauma, according to the lawsuit.
The suit claims that Austrian told the police officers her son had been behaving oddly after his ADHD medication was increased — and it makes the case that his disabilities should have been clear from his behavior as well as from previous visits police had made to the home.
“Nevertheless,” the lawsuit states, “officers of the Burlington Police Department (BPD) failed to accommodate J.A.’s disability during what should have been a routine interaction; needlessly escalated their encounter with J.A.; subjected J.A. to disproportionate and unnecessary force; and failed to treat J.A. with the dignity, respect, and sensitivity they would have afforded to a similarly situated white individual.”
The lawsuit alleges that police violated Article 11 of the Vermont Constitution, which guards against unlawful search and seizure, as well as Vermont’s Fair Housing and Public Accommodations Act, which requires that government agencies and officials make reasonable accommodations to disabilities and provide equal services to individuals regardless of race.
“We can see in their own policies what (the police officers) were supposed to do and exactly how those policies were ignored for encountering someone who has a disability,” Rich said. “We can also see how racial bias really drove this response in this encounter.”
The lawsuit seeks unspecified monetary damages for the teen’s physical and emotional pain as well as punitive damages against the city. It also seeks increased police training and an injunction to prohibit the use of ketamine “to treat perceived altered mental states in the field.”
The Burlington Police Department previously settled a lawsuit with three Black men for allegedly using excessive force in 2018, and it has also settled cases involving people with mental illness, including with the family of a man police fatally shot in 2013.
In a statement in the ACLU’s press release, Austrian said, “Every parent, regardless of their child’s abilities or race, should be able to call for help without fearing a disastrous outcome.”
Editor’s note: This story was updated after publication to include information about the Burlington Police Commission’s findings.
