A 'From The G-Man' Exclusive
By Gary Glennell Toms
A recent report by the Daily Gazette News stated the following: "Andrew Kearse was arrested in May 2017 after police said he tried to flee a traffic stop. On the way to the station and before being taken from the scene, he repeatedly told officers of breathing problems and said he was feeling dizzy, authorities have said."
The article also stated that Kearse repeatedly pleaded for assistance from Schenectady Police Officer Mark Weekes while en route to the police station. According to the New York State Attorney General's Office, Kearse requested help nearly 50 times, but Officer Weekes continued to drive at a regular rate of speed and did not respond to Kearse's requests. Kearse collapsed in the back seat and was unresponsive upon arriving at the station, according to officials. Kearse was placed on the sidewalk outside of the station, but six minutes had passed when Weekes started chest compressions. The officer called for paramedics, but Kearse died shortly after. The cause was cardiac arrhythmia.
In October of 2018, Acting New York State Attorney General Barbara Underwood said the grand jury declined to file charges despite her office's efforts, but From The G-Man decided to take a closer look at the case and laws relating to the safety and security of individuals in police custody.
On October 31, From The G-Man spoke with a federal law enforcement agent who periodically trains police officers. The agent, who spoke on the condition of anonymity, stated: "Once an officer takes a subject into custody, the care, custody and control of that subject is the responsibility of the officer until that subject is relinquished to a detention facility, another official or released from that officer's custody."
Rob Schwach, a former New York Police Department lieutenant and creator of the NYPD's C.O.B.R.A. program, was also contacted and asked about arrest and detainment policy. "I don't know national policy, but it certainly is a responsibility of the officer to do everything he/she can to protect a prisoner who is cuffed and vulnerable. As policing is a state by state issue, there may not be a national standard," said Schwach.
Several days after the conversations, and extensive online research, From The G-Man discovered a doctrine, which is called "special relationship", that raises serious questions about the grand jury's decision not to indict Officer Weekes. For the sake of full disclosure, explanations of the "public duty" and special relationship doctrine have been provided, courtesy of HG.org.
Public Duty Doctrine
Law enforcement officers often consider themselves responsible for protecting the public and deterring criminal activity. However, the legal doctrine that specifies the legal duty of law enforcement officers holds that they have a duty to the public but not to individual citizens. A law enforcement officer does not usually have the duty of protecting one person from the violence of another. As such, there is generally no private cause of action against a law enforcement officer for such failure to protect. However, there are exceptions to this rule, including providing for a private cause of action when the state creates the danger or when there is a special relationship.
Special Relationship Doctrine
In some cases, law enforcement has an affirmative duty to protect a specific person, such as when the state has a “special relationship” with the person. This special relationship requires the state to assume control over the individual in order to provide sufficient protection. Once this relationship exists, the state has the legal duty to take reasonable steps to ensure the safety and care of the individual and to safeguard the individual from foreseeable risks.
When a special relationship exists, the law enforcement officer may have a constitutional duty to protect the individual. A special relationship can be formed through the interactions between law enforcement and the private citizen. For example, a person who is in police custody, a special relationship can arise. This means that law enforcement may have the duty to protect the individual at the scene of the arrest, during transport and while in holding.
From The G-Man asked the federal law enforcement agent if a parolee was taken into police custody, as was reportedly the case with Andrew Kearse, would that constitute a special relationship? "Based on my nearly 20 years of experience in law enforcement, I'd say yes," said the agent. If Mr. Kearse was on parole when he was arrested, he technically became the property of the state all over again once he was arrested. At that point, the officer who transported Mr. Kearse was responsible for the care, custody and control of the subject. In my opinion, a special relationship existed at the time of Mr. Kearse's death."
There is no way of knowing if the grand jury was made aware of the public duty or, more importantly, the special relationship doctrine. "As a Grand Jury proceeding is secret, it is not possible to determine why they voted not to file charges against Officer Mark Weeks," said Sanford Rubenstein, who represents Angelique Negroni-Kearse, the widow of Andrew Kearse. "While the Grand Jury did not charge Weeks or any other police officers with a crime, a civil case has already been filed against police officers and the police department involved for damages for wrongful death. The burden of proof in a civil case is lower than in a criminal case, beyond a reasonable doubt in a criminal case, by a preponderance of the evidence in a civil case. The family of the late Andrew Kearse looks forward to a jury made up of members of the community making a determination with regard to fault and damages regarding the wrongful death of Andrew Kearse."
On October 21, News10 (ABC) reported...."Attorney General Barbara Underwood released a statement saying, “regardless of the grand jury’s decision, Mr. Kearse’s Death was a tragedy that never should have happened.” The report also noted that Underwood urged the New York State legislature to enact a statewide policy to treat breathing problems as a medical emergency and that the Schenectady Police Department should also take steps to become an accredited law enforcement agency.
When From The G-Man asked the federal law enforcement agent to interpret AG Underwood's request that the Schenectady Police Department take steps to become an accredited law enforcement agency, he stated, "If that request was made, it means the department isn't operating as a full-fledged police department. In other words, the officers lack the training necessary to be considered a duly-recognized police department. Basically, again, according to the attorney general's recommendation, the Schenectady Police Department is the equivalent of a volunteer police force."