Court Says Homeless Man Beaten By Firefighter Can Continue To Sue City For Ignoring First Responder Misconduct
This isn’t the kind of response one expects from a firefighter arriving at the scene of a fire. (via Courthouse News Service)
In August 2019 [Brad] Cox and other DFD [Dallas Fire Rescue Department] personnel were called to extinguish a grass fire. When Cox and other DFD personnel arrived, [Kyle] Vess, who is mentally ill, was walking near the fire. Due to Vess’s proximity to the fire, Cox thought Vess was responsible for starting it.
Cox and other DFD personnel attempted to detain Vess. Meanwhile, other DFD personnel called the Dallas Police Department (“DPD”) for assistance. Cox confronted Vess in an effort to detain him. Something provoked Vess, however, and he errantly swung at Cox, who swung back at Vess and hit him. According to the second amended complaint (“SAC”), Cox then beat Vess “senselessly” and subdued him. After subduing Vess, Cox continued to beat him, kicking him six times while he was on the ground. It was necessary for another firefighter to restrain Cox.
That’s from the recent federal court decision [PDF] allowing Vess’ lawsuit to move forward. The beating involved one more kick, delivered to the head of the “clearly subdued” Vess by Cox: one that resulted in a fractured orbital socket. The entire beating delivered more injuries, including a fractured sinus, cracked teeth, and facial paralysis to the right side of Vess’ face.
There’s body cam footage of the beating so neither Brad Cox nor the DFD could deny it happened.
They could, however, choose to do nothing about it.
DFD did not conduct an internal affairs investigation, and the Dallas Public Integrity Unit (“DPIU”) cleared Cox of any wrongdoing. Both entities “worked to ensure that no further or deeper investigation was done” because both had a practice of concealing internal disciplinary measures from the public. The office of the Dallas County District Attorney did not pursue an indictment of Cox, later “indicated remorse” for not having done so, and “admitted that a thorough investigation was not undertaken.”
And it had never bothered to seriously discipline Brad Cox, who has apparently been a problem for the DFD for nearly two decades when this incident took place:
According to the SAC, Cox was arrested in 2002 for suspected assault at a birthday party; was reprimanded three times for refusing to provide medical treatment to patients; was counseled in writing in 2011 for “unacceptable conduct” related to a patient; pleaded guilty to falsifying a government report; and is currently being sued in a case where he allegedly laughed at, and refused to give care to, a homeless man, who ultimately died.
Cox isn’t an anomaly.
[W]hen DFD personnel do engage in inappropriate behavior (whether in poor communities or elsewhere), DFD has refused to terminate any of these personnel in the last 30 to 40 years. This is so despite numerous examples of such inappropriate behavior—not punished by termination—including refusing to render care because of the person’s sexual orientation; refusing to transport a child to the hospital because the paramedic thought the mother was lying about the seriousness of her child’s illness; refusing to treat a man with a terminal condition because the paramedic believed the man was already dead; and refusing to follow standard procedures for a gunshot wound.
Brad Cox asked for qualified immunity, claiming the beating he handed out was unrelated to any “seizure” of Vess by law enforcement and, therefore, did not violate his Fourth Amendment rights. Wrong, says the court. A seizure takes place when an officer (or first responder, as in this case) uses physical force or a show of authority to restrain someone’s liberty. Cox may have felt he was just handing out a beating, but he did so as a government employee while in the presence of officers called to the scene. No immunity.
The city of Dallas tried to dismiss the lawsuit as well, arguing that the allegations did not sufficiently tie the city to Cox’s beating or the DFD’s unwillingness to terminate employees over severe misconduct. The court says that Vess has actually alleged all he needs to at this point. With the DFD making a four-decade run at never terminating an employee over severe misconduct, the city is at least partially responsible for this accountability vacuum.
[T]he court holds that Vess has alleged sufficient facts for the court to draw the reasonable inference that the City has a “de facto policy and/or custom of protection for previously disciplined personnel by refusing to terminate or separate from employment individuals unfit to serve as members of the Dallas Fire Department despite good cause for termination and the risk these individuals pose to the public.” And the court concludes that Vess has plausibly pleaded that this policy was the moving force behind Cox’s actions.
That’s enough to keep the lawsuit alive. And now the city of Dallas will have to confront its failure to oversee an agency that was created to fight fires and save lives but has ended up housing people like Brad Cox — a firefighter who assaults citizens, falsifies reports, and refuses to help the people he’s paid to help.