Wednesday, March 06, 2013
- by Valerie W. Epstein, Esq.
It is not often that I am so outraged about a legal matter that I take to the keyboard and express my opinion. However, several Tennessee cases highlight police brutality that amounts to torture right here in our own backyard. These cases surround the the use of police violence and neglect in ways which we as moral and decent individuals of a civilized nation should stand up against.
The first is our own “Rodney King” case, the case of Adam Tatum who was brutalized while at the Chattanooga Salvation Army facility on McCallie Avenue. Two large white officers beat Mr. Tatum (black) so forcefully that they broke both of his legs in multiple places. There was no indication that he was resisting arrest or causing harm to himself or others. Nevertheless, the officers overreacted by grabbing him from behind in a choke hold and then hitting him mercilessly no less than 60 times while he sat helplessly on the ground. The second case is the case of shackling a nine month’s pregnant Juana Villegas during labor and birth in a Nashville jail and hospital. While in the jail her amniotic sac broke indicating that birth was imminent. The guards bound her hands and feet while at the jail, during her trip to the hospital and while at the hospital. Think about it ladies. Your water breaks and your hands and feet are both shackled. You can’t walk, you can’t clean yourself, you can’t use the bathroom and most importantly you can’t have the baby if it begins its process into this world. This is the face of torture coming to light in our so called “modern” penal system. Where is the empathy? Have we lost our feelings for the plight of other human beings especially someone as vulnerable as a woman in her last month of pregnancy?
In the case of Juana Villegas v. The Metropolitan Government of Nashville and Davidson County, Docket No. 11-6031 the facts are that she was arrested because she was an illegal immigrant (hispanic). She did not commit a crime such as stealing, she was not violent towards herself or others and she did not resist arrest. What possible threat was she to the police officers or to society at large? No assessment was given of her flight risk; it was simply automatic because of the Immigration and Customs Enforcement (ICE) detainer. As the saying goes, show me a nine month’s pregnant woman who is a flight risk and I will show you some property in Florida…It is ludicrous that she was shackled at all. Any woman can tell you that simply trying to get out of a chair is a major effort when you are nine month’s pregnant much less trying to run away from law enforcement. You are uncomfortable; you are weary, tired and anxious about your impending birth. The birth process is painful, physically exhausting and an emotional rollercoaster. She was denied the right to hold her baby when it was born because she was handcuffed to the bed. She was denied the right to breast feed her baby because she was handcuffed to the bed. She was denied the right to clean herself after birth because she was handcuffed to the bed. She was denied the right to have a breast pump to feed her baby and relieve her hurting breasts.
The horror and shame of her treatment is not only a reflection of our moral ideals of decency and compassion but it is a violation of the laws and of our constitution. “There is no evidence on the record which indicated that shackling Plaintiff (Ms. Villegas) was justified by any legitimate penological concern.” p. 26.
The 8th amendment to the United States Constitution prohibits cruel and unusual punishment and protects prisoners from the “unnecessary and wanton infliction of pain.” Fundamentally, the concept underlying the 8th Amendment “is nothing less than the dignity of humankind.” p. 6. Courts look at the violation in two parts: objectively and subjectively. On the objective analysis the court looked at whether the shackling of pregnant detainees in the manner and circumstances in which the Plaintiff was shackled creates a substantial risk of serious harm that society will not tolerate. p. 10. No fewer than three cases from 1994 to 2010 find that shackling pregnant inmates while they are in labor is a clear violation of the 8th Amendment and “posed a risk so serious that it violates contemporary stands of decency” p. 11. The American Medical Association, Amnesty International, the American College of Obstetrics and Gynecology and the United Nations all decry the practice of shackling pregnant women, especially while in labor. Where are the lawyers in Tennessee who work for the penal system? Have they not studied the law? Did they not communicate to the wardens that shackling pregnant women was a violation of the 8th amendment? Sadly while it is an illegal practice shackling pregnant women has been around for at least a century because the law has not been “fully developed” says the court. p. 7. But what happened to our humanity? Do we as lawyers and laymen always need the court to tell us, neigh demand that we do what is right? Have we lost our moral compass to guide us? I am beginning to wonder.
The subjective component of the law also deserves review. The court framed the inquiry as whether the officers were aware and understood (or should have been aware and understood) that they were exposing the Plaintiff to a substantial risk of serious harm.” p. 11. In the context of a pregnant woman I find it curious that there is much discussion on this point given the obviousness of serious harm to a mother and her unborn baby by having her feet bound such that they baby cannot even emerge! A collective loud “Duhhh” should be voiced. The other point being that Tennessee law requires that for even the most mundane of personal injury cases a doctor has to opine as to the injuries. But here the court looks to police officers to assess the serious health risks of a shackled woman and her unborn baby. Ever more curious is the fact that the court itself looked to the medical testimony of no less than three doctors to assess the risk and harm to Ms. Villegas. The doctors testifying in this case identified no less than four serious health risks due to shackling: potential umbilical cord prolapse, increased risk of falling, potentially life-threatening blood clots and the deeply felt psychological loss of dignity causing emotional distress. This does not even begin to address the pain that Ms. Villegas must have experienced by not being able to move, not being able to relive her swollen breasts of milk or to get “comfortable” while in labor. Nor does this take into account the medical opinions of the doctor’s in the hospital treating Ms.Villegas who ordered that she be unshackled based on her medical condition at the time. Our societal underpinnings are coming undone when police officer’s subjective opinions are given precedent over treating physicians. The law needs to step up.
The second case, Adam Tatum v. City of Chattanooga, a case in our own Eastern District of Tennessee Federal District Court, serves to back up Ms. Villegas case in that there appears to be no evidence on the record which indicated that the severe beating received by Mr. Tatum was justified by any penological concern. This too is an 8th amendment case evidencing cruel and unusual punishment. The facts are that Mr. Tatum was staying at the Salvation Army a place for homeless individuals to stay the night and a halfway house for those recently released from jail. No weapons are allowed. It is a secure facility in that it is locked at night and the individuals inside cannot take flight. Testimony and the complaint indicate that on February 27 the facility called the police because of what appeared to be two individuals in a disagreement. No one was fighting. The Plaintiff, Mr. Tatum(black) looks to weigh 140 pounds. He is holding the tie of another individual in the facility. Before anything happens two white Chattanooga police officers arrive and jump on Mr. Tatum from behind, pulling him to the ground in a choke hold (illegal in Tennessee). The officers both appear to be much larger and more muscular than Mr. Tatum who does not appear to resist their efforts in any way. Regardless, they begin to beat him mercilessly no less than 75 times with a billy club on his back, legs and arms. Blood can be seen on the floor yet they continue to beat him as he lies submissively on the ground. Additional officers arrive and the beating continues, no one stopping the brutality. It is painful to watch, but I encourage you to do so: http://www.timesfreepress.com/videos/2013/feb/27/6464/. I am ashamed to see Chattanooga police officers, committed, like lawyers, to upholding the law, breaking it with such force. This is torture pure and simple and it is time for change. After the Rodney King case in Los Angeles there was extensive reform of the police department. And this is not to say that we don’t have good law abiding police officers, we do. Sure no one wants to say there is a problem but when cases like these become public it means that it is not an isolated incident. I have heard stories too of deliberate indifference such as denying female prisoners sanitary napkins, pressuring businesses for a bribe to keep the business “safe,”corrupting drug tests to put a probationer supporting a family in jail, arresting a teenager as he spoke out to stop an officer from beating his friend and sitting on the back of an arrestee when he just had back surgery.
Maybe there is some truth to the violence of television and video games making us less sensitive to violence. I grew up making mud pies and playing in the backyard with my friends after school. But maybe too our laws will be enforced to punish those who make a mockery of our 8th Amendment rights. Don’t be deliberately indifferent, speak up for what is right, and use your moral compass to shape our laws. Judges and politicians do listen to public sentiment and we should be grateful for the 6th circuit judges who stood so boldly to try and develop the law more humanely in this arena. In the meantime, call a lawyer if you have been victimized; speak out against this violence to your elected representatives, your church members, your neighborhood associations and in doing so you will uphold the human dignity we all deserve no matter our ethnicity or station in life.