A federal court in Texas has refused to dismiss a lawsuit filed by a homeless man who was beaten by a Dallas firefighter in 2019. Kyle Vess filed suit against the City of Dallas and firefighter Brad Cox alleging a violation of his civil rights under 42 USC § 1983.
Senior US District Court Judge Sidney A. Fitzwater granted the city’s motion to dismiss the suit last March, but granted Vess the opportunity to amend his compliant. More on that ruling. Vess took full opportunity to refile prompting the city and Cox to again seek to have the matter dismissed.
Judge Fitzwater explained the facts as alleged as follows:
- In August 2019 Cox and other DFD personnel were called to extinguish a grass fire.
- When Cox and other DFD personnel arrived, 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 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.
- But according to the SAC, Cox was not finished. DPD officers eventually arrived and found Vess lying on the ground on his back, “clearly subdued.”
- The DPD officers, together with Cox and a group of other firefighters, surrounded Vess as he continued to lie on the ground.
- Cox taunted Vess, telling him to “[g]et up again, get up again.”
- When Vess lifted his head off the ground, Cox kicked him in the right side of his head with a steel-toed boot.
- Vess was initially knocked to the ground, but then stood up in a “fight or flight” response to confront Cox.
- Before Vess could confront Cox, however, another officer used a taser to incapacitate Vess.
- Cox’s actions caused Vess to suffer “a fractured orbital socket on his face, a fractured sinus, cracked teeth, and . . . facial paralysis on the right side of his face.”
- Vess also suffered an exacerbation of a prior brain injury.
- According to the SAC, although the City knew that DFD personnel would be placed in potentially “physical encounters,” it did not provide them de-escalation or use-of-force training.
- Rather, DFD policies require that firefighters and paramedics do not respond immediately to violent calls, but instead wait for DPD officers to arrive, and only then respond.
- The City attempted to avoid disciplining Cox for his encounter with Vess.
- DFD did not conduct an internal affairs investigation, and the Dallas Public Integrity Unit 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.”
- Vess alleges that Cox’s physical encounter with him was not an isolated incident.
- 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.
- Finally, according to the SAC, Cox’s actions were consistent with the City’s practices.
- Vess alleges that the DFD treats fire rescue calls to affluent areas of Dallas differently from those to impoverished communities.
- DFD and DPD personnel do not find it necessary to adequately respond to these communities and believe they can get away with certain substandard behavior in them.
- And when 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.
In a lengthy ruling, Judge Fitzwater denied the city’s motion to dismiss, and granted in part but denied in part Cox’s motion to dismiss. While the ruling contains too many issues to provide a detailed discussion on all points, there is an issue worth spending some time considering: how the failure to enforce policies and address “bad apples” can itself serve as a policy creating liability under 42 USC § 1983 as a civil rights violation:
- Vess alleges that there are no instances of termination of a paramedic in the last 30 to 40 years in DFD for mistreatment of patients; that there is a culture of not terminating DFD employees and protecting them despite egregious misconduct; and that there is a code of silence and a review process designed to keep “bad apples” on the force.
- Vess points to DFD procedures that encourage employees to avoid documenting inappropriate comments, a policy that is consistent with a custom of employees’ not reporting and not being terminated for misconduct.
- Taking the facts alleged in the [Second Amended Complaint] as true, the court concludes that Vess has plausibly pleaded that this policy “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,” was the moving force behind Cox’s actions.
- Vess has plausibly pleaded that this policy was known throughout the department and that the policy caused Vess’s injuries.
- This conclusion is not an unfounded outlier. Numerous courts have held that a policy of lack of discipline and protection plausibly emboldens officers to engage in misconduct.
Here is a copy of the decision: