A mother’s lawsuit against the city of Burlington alleging police officers used excessive force on her 14-year-old son survived a challenge in Chittenden County Superior civil court last week, according to the American Civil Liberties Union of Vermont.
A judge ruled against the city’s motion to dismiss on the grounds of qualified immunity and other claims, allowing the case to proceed.
“This ruling is the first step towards accountability and showing that nobody is above the law, certainly not the police and the city government,” ACLU Vermont attorney Hillary Rich said in an interview Tuesday.
Represented by ACLU Vermont and the law firm Latham & Watkins LLP, Burlington resident Cathy Austrian filed a lawsuit against the city on behalf of her son in January, in connection with a May 2021 incident when police came to her house to speak with her 14-year-old son.
Austrian wrote in the complaint that her son had stolen some vape pens and she called the Burlington police, hoping officers would talk to him and convince him of the need to return them. Her child has behavioral and intellectual disabilities, Austrian wrote.
The two responding officers did peacefully convince him to give them all but one of the pens, according to the complaint, but then they escalated when he would not give up the last one, wrestling it from him and restraining him when he began flailing his arms.
Austrian requested they call in paramedics, who proceeded to put a mesh bag, known as a spit hood, over her son’s head, according to the complaint. As the child continued to scream, they injected him with ketamine, knocking him unconscious, the complaint alleges.
Austrian filed in court after her complaints and subsequent internal investigations by the Burlington Police Department and the city resulted in no discipline for the officers. In the lawsuit, she alleges excessive force, as well as discrimination, arguing that police treated Austrian’s son, who is Black, worse than they would have treated a white teen in the same situation.
The city sought to dismiss the lawsuit based on several claims: that the allegations did not amount to unreasonable seizure; that the other laws cited did not apply to police in their responsibilities as first responders; that reasonable non-violent efforts were made; and that the officers are protected by qualified immunity.
Qualified immunity is a legal doctrine protecting public servants from facing litigation for violating citizens’ civil rights while on the job.
As it applies to police officers, proponents say it’s necessary to protect them from frivolous lawsuits, but critics argue that it allows them to act with impunity and denies victims of police brutality a path to justice in civil court.
City officials declined to comment due to the ongoing nature of the litigation Tuesday afternoon.
In Judge Helen Toor’s ruling on the motion to dismiss, she wrote that there was sufficient evidence for an unreasonable seizure case.
“Although (the child) resisted giving back one stolen vape pen, the crime was not serious, he did not pose an immediate threat, and he did not try to ‘evade arrest by flight,’” Toor wrote. “Additionally, based on the facts pled in the complaint, the officers should have taken into account (the child’s) alleged mental health condition.”
Toor also ruled that the law cited as prohibiting disability-based discrimination, the Vermont Fair Housing and Public Accommodations Act, does apply even to first responders. Additionally, she ruled that a qualified immunity must demonstrate the officers were acting in good faith, which was not rigorously demonstrated or disproven in the city’s motion.
Rich, the ACLU Vermont lawyer, said it was significant that the judge’s ruling made it clear that allegations of racial discrimination were more than sufficient to avoid dismissal at this stage.
“The police response in this case was really primed by negative racial stereotypes,” Rich said. “Instead of a passively seated eighth grader, they saw a grown, dangerous man.”
During the incident, paramedics justified covering the child’s face with the mesh bag by labeling his behavior as “excited delirium,” a term which Rich said has been rejected by the medical community and has a long history of being applied in a racialized way to young Black males in police custody.
Toor wrote that the claim of racial discrimination presented in Austrian’s complaint “easily survives the motion to dismiss.”
The judge’s denial of the motion was signed July 31 and delivered to the parties Monday. The city is required to file a formal answer to Austrian’s complaint in the next three weeks, after which discovery will be scheduled.
Clarification: This story was updated to more accurately describe the bag paramedics placed over the child’s head.
