7/22/2010 - Posted by:
Spinella & Associates
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Police Dispatchers Violated Officer's Constitutional Rights for Failing to Warn Him that Suspect was Armed

Police officers have civil rights too. It is easy to overlook that police departments are made up of individuals who are citizens like the rest of us who are the subject of constitutional entitlement, not just constitutional restrictions. It is also easy to overlook that they, like the rest of us, are vulnerable to physical harm, even death, as a consequence of damage inflicted by dangerous conditions created by governmental policies and employees. Although the law has limited the scope of claims of this type we have agreed to represent police officers in a number of cases involving violation of civil rights and, in some cases, physical harm resulting in death. The following case on behalf of Brian Aselton, an East Hartford Police Officer, is an example of such a case. It is also representative of two other issues. Our willingness to invest enormous time and energy with no guarantee of payment, only the opportunity to petition the court for reimbursement for costs and fees after a jury trial and a jury verdict in favor of the Plaintiff under section 1988 of the Civil Rights Act. For this reason, civil rights attorneys have been rightfully referred to by the United States Supreme Court as “private Attorney Generals”. This case is also illustrative of another hard earned aspect of Civil Rights litigation - some cases are both lost and won. Lost in the sense that after literally thousands of hours of work in the trial and appellate courts the ultimate verdict results in a ruling in favor of the State or municipality and no individual financial benefit results to the individual citizen / plaintiff. Even in these cases, however, the public at large is the ultimate winner. These are the cases where the individual plaintiff is turned away, but the law is changed in a way that benefits all future citizens, thereby advancing justice for all. II. John Aselton, Administrator of the Estate of Brian Aselton v Town of East Hartford. On January 23, 1999, sometime shortly after 9:16 p.m., 26 year old Police Officer Brian Aselton was brutally murdered as a result of a point blank gun shot wound to the head. Tragically, the Department’s radio dispatchers never bothered to tell him that he was walking into the middle of an armed robbery - information in their possession but never conveyed. Following his tragic murder, our firm filed a twenty-eight count complaint in the Hartford Superior Court on behalf of his Estate alleging claims including willful and/or serious misconduct on the part of the Defendant East Hartford’s police dispatchers and supervisors that made Officer Aselton’s wrongful death substantially certain to follow. Additionally, numerous legal claims were filed alleging deprivations of due process rights secured by the Fourteenth Amendment to the United States Constitution and by Title 42 U.S.C. §§ 1983 and 1988, and deprivations of due process rights secured by article First, §8 of the Connecticut Constitution against Defendants Chief James Shay, individually and in his capacity as Chief of Police of the Town of East Hartford; against intake dispatcher Patricia Learned, individually and in her official capacity as dispatcher for the Town of East Hartford; against radio dispatcher Deborah Rataic, individually and in her official capacity as dispatcher for the Town of East Hartford; and against dispatch supervisor William Madre, individually and in his official capacity as dispatcher for the Town of East Hartford. The lawsuit focused on the fact that the intake dispatcher, Patricia Learned, was inattentive to the 911 caller/complainant, who telephoned from his third-floor apartment across the hall from the armed burglary that was in progress; ignored obvious signs of danger apparent from the call; failed to ask proper follow-up questions; rushed the call to return to an ongoing personal call; relayed inaccurate; incomplete information to the radio dispatcher and erroneously, in conjunction with the radio dispatchers, Defendants Debra Rataic, a trainee, and her supervisor William Madore, who directed Brian Aselton, unprepared and unaware of any danger, into a deadly trap. Additionally, the Complaint alleged that the dispatch department was in disarray in that there was inadequate and inconsistent training, screening, supervision, discipline and guidance by Chief James Shay, and members of the dispatch department which directly led to Officer Aselton’s death. Our evidence showed that Defendant Patricia Learned, the intake dispatcher, was on a forty-five minute personal call that distracted her, causing her to rush the intake call and message she typed on the dispatch screen, so she could return to her personal call within forty-five seconds. No useful or appropriate follow-up questions were posed necessary to elicit essential information from the caller. In fact, she exhibited impatience and annoyance at the caller and abruptly and prematurely ended the call. Learned later described Officer Aselton as “stupid” and a “big dufus” and an “asshole” while on two other personal calls on police lines shortly after hearing he had been shot, further evidencing her state of mind of total disregard for his well-being, upon dispatch and thereafter. Indeed, Learned later described the substance of the call that she had previously dispatched as a routine “welfare check,” as a “suspicious act.” She also later admitted she thought that someone might have been injured when she took the call, further evidencing her deliberate indifference in abruptly ending the 911 call and sending Officer Aselton into a dangerous situation. Subsequent to this incident, dispatcher Learned was disciplined for unprofessional conduct and improper transmittal in regard to information conveyed after Officer Aselton was shot. Although she was initially cleared in regard to the pre-incident call and transmittal by an initial report written by Commander Kenary. The report itself indicated that there were “remarkable discrepancies” between the information which she received during the forty five second intake call and the information that she typed on the dispatch screen which was radioed to Officer Aselton. Subsequently, other additional investigations concluded that the Kenary Report was essentially a “whitewash” engineered by Chief Shay and that dispatcher Learned’s conduct during the dispatch was negligence and/or reckless and the results foreseeable. Although the 911 caller, Mark Myers, called in frazzled, confused, nervous and afraid to open his apartment door, according to Ms. Learned, and although he stated several times that he heard loud noises “outside”, such as yelling and groaning, that it sounded like someone fell down a flight of stairs in the hallway and that “outside” meant “the apartment across” [sic], Learned asked no follow-up questions or questions seeking clarification of these points. Instead, she exhibited impatience and ended the call abruptly. According to a summary of intake and dispatch errors listed by Lieutenant Sandberg in his Internal Affairs Division investigative report as having been committed by Patricia Learned relative to the Myers, 911 call. Consistent with her intake errors and omissions, Learned proceeded to send a perfunctory, incomplete and misleading message to the radio dispatcher via computer screen stating, “SAYS THAT HE JUST HEARD A LOUD NOIR, SOMEONE YELLING, DOESN’T REALLY HAVE ANY IDEA WHAT IT WAS AND WILL NOT GO LOOK (sic) IT WAS OUTSIDE,” (screen print in all capitals) nothing more. Equipped with such woefully inadequate information, Officer Aselton and Officer Weglarz then proceeded to the scene. When they found nothing outside the building, Officer Aselton’s backup, Officer Weglarz left, believing the call was over. Officer Aselton, also believing the reportedly routine call to be over, proceeded to contact the dispatcher. At that point, at the instruction of the supervising radio dispatcher, without ever confirming the instruction with Learned or re-contacting the 911 caller, radio dispatcher, Defendant Debra Rataic, mistakenly told Officer Aselton that the complainant wished to be seen, although such was not the case. Although Rataic reportedly asked out loud if the complainant wanted to be seen, Learned, who had returned to her personal call, did not respond. As directed, Brian Aselton then walked “blindly” into an armed burglary in progress across the hall from the complainant’s apartment. He was fatally shot in the head, totally unprepared for the unanticipated encounter without ever un-holstering his weapon. Thus, the real tragedy behind the death of Brian Aselton was the reckless, cavalier, readily avoidable and error-laden manner in which he was sent to his death. Subsequent to Officer Aselton’s death, multiple departmental and independent investigations of the incident were conducted which arrived at the following general conclusions: Dispatcher Learned was unprofessional in her conduct, impatient, inattentive and distracted by a personal call. Her initial work evaluations echo her previously reported inattentiveness and lack of focus. An experienced department dispatcher, Ruth Senger, complained to supervisors, including communication supervisor, Jeffrey Vannais, to no avail, shortly after the department hired Learned, that she was arrogant, thoughtless and distracted, and spent too much time on personal calls at work. Sure enough, in this case, she rushed the 911 call to return to her personal call after only forty-five seconds. Instead of exhibiting calm and patience, she demonstrated impatience and expressed annoyance at the caller for his perceived lack of cooperation thereby suppressing rather than eliciting basic information necessary to prevent danger to the officers. Consequently, she conveyed inaccurate and inadequate information to the radio dispatcher, and therefore, to Brian Aselton, resulting in his totally unprepared state when he was shot. The police radio dispatchers (Trainer Madore and Trainee Rataic), made no further inquiries to the knowingly incomplete information and then compounded this serious misstep even further by unilaterally and mistakenly telling Officer Aselton, upon the reported completion of his call outside the subject building, (after Officer Weglarz and he found nothing suspicious), that the caller wanted to be interviewed and directed him to do so. As such, Officer Aselton was sent and directed, without fault of his own, and with no ability to independently evaluate the information from the call, misinformed, unaware and vulnerable into the “snake pit”.” (Among the many investigatory findings supporting the above were the fact that the weapon was un-holstered; Officer Aselton and Weglarz, who left the scene, did not have all the information they should have received; Aselton acted within the scope of his duties and training; Office Aselton entered the building alone; and the failure to share known information exposed Aselton to serious harm.) In developing the civil rights claim on behalf of the State, we spent considerable effort developing our claim of systemic wrongdoing involving negligence on the part of the Department and Supervisors as a whole. For example, we were able to show that there was a major shortage in staffing the telecommunications department at the time of the fatal shooting of Officer Aselton. In addition, protocol, guidelines and supervisors were virtually nonexistent so as to create a state of “disarray” and a “tragedy waiting to happen. This information was all previously conveyed to Chief Shay. Additionally, the department and Shay were involved in a post-incident “cover-up” of the conduct the department was engaged in, thereby perpetuating and ratifying the known evidence of pre-incident departmental problems as concluded by two independent reports (the so-called “Sandberg”: and “Checker” Reports). In demonstrating these facts, reliance was made in deposition testimony on Defendants, fact witnesses and municipal employees. In addition, Plaintiff’s police practices expert, Reginald Allard, offered expert opinion as to the lack of protocol and supervision within the telecommunications department and its role in the violation of the constitutional rights of Officer Aselton. Post-incident investigations found the communications department to be in complete disarray, a fact known to Chief Shay for at least five years before the incident, and; that the condition of the communication department was, essentially, a “tragedy waiting to happen” in which Chief Shay was “going to lose a guy,” according to former communications supervisor, Sergeant Leo Lepage. He also concluded that the qualities that Learned exhibited during the 911 call, such as arrogance, making personal calls and being easily distracted, were previously reported and known to the dispatch hierarchy, and, thereafter, to Chief Say. Shay described the dispatch department as a “madhouse” and knew dispatchers were doing things he was outraged about, yet justified his inaction by stating, “I can’t be there twenty four hours a day.” Additionally, no uniform or centralized methods of training of dispatchers were ever established; in fact, different trainers advocated conflicting dispatch techniques. Patricia Learned, who had been employed almost fourteen months as a dispatcher (her date of hire was December 31, 1997), was not certified by the State of Connecticut after one year of employment as required by Conn. Gen. Stat. § 28-30 at the time of the murder of Officer Aselton. Deborah Rataic later transferred out of dispatch due to the departmental disarray and lack of protocol. Furthermore, there was no telecommunication policy manual in effect and no guidelines or policies existed separate from the original training manual. Many unwritten and/or informal polices that were in place were not adhered to or enforced. The department phones were regularly used, against policy, for personal business calls. There were no refresher or updated training courses available or utilized. Supervisors, including Chief Shay, continually thwarted communications supervisor, Jeffrey Vannais’ efforts prior to Aselton’s death to obtain funding and manpower to provide more supervisors/trainers; a uniform policy manual; continuing education and refresher courses (some of these measures were instituted post-incident). It was against this backdrop that the case was made showing that the individual Defendant dispatchers created the danger leading to Officer Brian Aselton’s death. III. Connecticut Supreme Court Decision Despite these compelling facts of obvious official wrongdoing, the trial court judge concluded that they were not compelling enough under existing law. In dismissing the case, before the case could be heard by a jury, the court relied on an older line of cases that protected the government from lawsuits unless it could be shown that the police acted in an outrageous fashion that would shock the conscience; in other words, that they actually intended the resulting in harm in this case, that they actually acted intentionally to murder Officer Aselton. We argued that the case law had evolved over recent years so as to impose a more enlightened and intelligent jurisprudence. Under this theory the municipality would be liable when they acted with “deliberate indifference” in lieu of the more stringent “intent” standard in cases of “state created danger”; in other words, this standard should apply in cases where the state had a special relationship to the decedent thereby assuming an obligation to protect him from harm; or in cases where the State created or increased the risk of harm by a third party. The trial court adopted the “intentional harm” standard in dismissing this case. We immediately appealed to the Connecticut Supreme Court thereby setting the stage for a major battle over fundamental constitutional issues of due process of law. After months of work in preparing and filing briefs and oral argument before the full panel of Supreme Court Judges, an extensive written opinion was issued by the Court on October 17, 2005. The good news was that the Court adopted our legal theory in its entirety, thereby imposing the “deliberate indifference” and “state-created danger” theory. The bad news was that it found that the defendants did not act with deliberate indifference, in our case, and that they had been merely negligent at best. Given the historical respect, the Supreme Court had accorded citizens in allowing the right to “trial by jury,” and the commitment to interpreting allegations of acts in favor of the Plaintiff on appeal, it seemed incredible (this is not too large a word) that our legal theory would be adopted but our right to a jury trial would be summarily denied on factual grounds by a panel of judges with no legal authority to decide issues of fact, only questions of law. As a result, more than 2,000 hours of legal work were invested in this case without compensation to lawyers, or, more importantly, the Estate of Officer Aselton. However, in everlasting tribute to his memory, civil liberties were advanced a major step.
 
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