Harris County v. Nagel

• Decision Date: 05 October 2011
• Docket Number: No. 14–09–00780–CV.,14–09–00780–CV.
• Citation: 349 S.W.3d 769
• Parties: HARRIS COUNTY, Texas; G. Young; D. Gehring; and J. Cavitt, Appellants,v.Shirley NAGEL, Individually and as Representative of the Estate of Joel Don Casey, Appellee.
• Court: Texas Court of Appeals

349 S.W.3d 769

HARRIS COUNTY, Texas; G. Young; D. Gehring; and J. Cavitt, Appellants,

v.Shirley NAGEL, Individually and as Representative of the Estate of Joel Don Casey, Appellee.

No. 14–09–00780–CV.

Court of Appeals of Texas, Houston (14th Dist.).

Aug. 25, 2011.Rehearing Overruled Oct. 5, 2011.

Michael R. Hull, Frank E. Sanders, Houston, for appellants.

Susan E. Hutchison, S. Rafe Foreman, Grapeville, for appellee.Panel consists of Justices SEYMORE, BOYCE, and CHRISTOPHER.

SUBSTITUTE OPINION

TRACY CHRISTOPHER, Justice.

After considering the appellants' motion for en banc reconsideration, our judgment in this case remains unchanged; however, to address the points raised in the motion, we withdraw our opinion of June 7, 2011 and issue this substitute opinion in its place. We deny the motion as moot.

In this civil-rights action, plaintiff Shirley Nagel, individually and as representative of the estate of her son Joel Don Casey, sued Harris County and members of the mental-health warrants division of the Precinct One Constable's office. A jury found the County and three deputy constables liable for $3 million in damages. The defendants ask us to reverse the judgment because the deputies are entitled to qualified immunity, and because the evidence is legally insufficient to sustain the judgment against the County. Because the record supports the conclusions that (a) the deputies are not entitled to qualified immunity, and (b) Constable Jack Abercia ratified his deputies' unconstitutional use of excessive force, we affirm.

I. Background

On Joel Don Casey's 52nd birthday, deputy constables from Harris County Precinct One arrived at the home he shared with his mother, Shirley Nagel, to transport him to a psychiatric facility. Because Casey had thrown away the medication used to treat his schizophrenia and his doctor had not returned Nagel's repeated phone calls to request a replacement prescription, Casey was to be hospitalized to have his medication stabilized. Fifteen minutes after the deputies arrived at his home, Casey was dead. Nagel's evidence and witnesses present a version of the events of those fifteen minutes that is very different from that presented by the deputies and the County. The jury resolved these conflicts in Nagel's favor, and in accordance with the standard of review, we summarize the evidence in the light most favorable to the verdict.¹

Viewed in this light, the record shows that Casey had been treated for schizophrenia for decades. He lived nearly his entire life with his mother, who knew that when he refused to take his medication, his symptoms worsened. Shortly before the Harris County Precinct One Constable's office became involved, Casey threw away his medication. He became worried that there were bombs in the home's air vents, and he began repeatedly rearranging the dishes.

In her attempts to have Casey's medication refilled, Nagel called Casey's doctor every weekday from Friday, February 11, 2005 through Thursday, February 17, 2005. On Thursday, February 17, 2005, Anthony Green answered the doctor's phone and said that he could not refill Casey's medication and that it sounded as though Casey needed to be hospitalized to have his medication stabilized. ² Green asked Nagel if Casey ever had been suicidal, and because Casey had been suicidal decades earlier, Nagel answered in the affirmative. Green told Nagel it was too late to get a mental-health warrant that day, and instructed her to call back the following morning and “a mental[-]health team from Harris County Mental Health Association would come and escort [Casey] to the hospital.” Nagel did not know that law enforcement officers would execute the warrant.

Nagel telephoned Green the next morning, and he told her to wait outside for the mental-health team to arrive so she could let them into the house. That afternoon, Green applied for Casey's emergency detention. To obtain the mental-health warrant, Green was required to present evidence that Casey presented a substantial risk of serious harm to himself or others. In the warrant application, Green wrote that Casey was having homicidal thoughts and had threatened his mother, but Nagel denies that she said these things. In a “rap sheet” Green prepared for the deputy constables who would be assigned to execute the warrant, he again wrote that Casey had homicidal thoughts and added that Nagel was afraid of her son; however, he also wrote that Casey would not be violent or try to flee when the officers arrived.

Sergeant Cindy Leija of the Harris County Precinct One Constable's office assigned deputies Gregory Young and Demonte Gehring to execute the warrant. Young called Nagel to confirm that Casey would not fight them, and Nagel repeated that he would not. She also informed Young that police had escorted Casey to the hospital peacefully twice before.³

When Young and Gehring arrived, Nagel met them outside. Gehring asked if Casey would give them any problems. Nagel again repeated that Casey would not be combative, but she noticed that Young already had a taser in his hand while they were still outside the house. As Young later agreed at trial, he already had made up his mind about what he was going to do before he ever saw Casey.

The deputies knew that the area was safe before they entered the house—so safe that they asked Casey's mother to enter the house first, even though she ambulated with the aid of a cane. When they entered, Casey was seated on the sofa with his feet on the coffee table; he was listening to music and smoking a cigar.

According to Nagel, Young immediately shone the light from the taser on the middle of Casey's forehead while Gehring went around the back of the sofa to approach Casey from the other side. Young and Gehring did not identify themselves or state why they were in the house. Young only asked, “Are you Joel Don Casey?” When Casey answered, “yes, sir,” Young ordered him to stand up and place his hands behind his back. Casey immediately did so, and as Young later testified, Casey was showing no aggression. Nevertheless, Gehring grabbed Casey and began to handcuff him. When Casey flinched and said, “That hurts,” Gehring said “Hit him!” Young shot Casey in the chest with the darts from the taser, and Casey immediately dropped to his knees with his face on the seat of the couch. Gehring told Young to “hit him again,” and although Casey said, “Please don't kill me. Please don't shoot me again,” Young shocked Casey with the taser approximately eighteen times. At some point, Young also radioed for assistance, but then radioed that additional units should respond slowly.

Young and Gehring next placed the handcuffed Casey facedown on the floor. According to Nagel, they grabbed Casey under the arms and dragged him to the entryway of the house where they dropped him. Young then collected the wires from the taser darts while Gehring moved the deputies' car closer to the house. When the deputies returned to Casey, they again lifted him under his arms and told him to walk. Casey fell, and the deputies began hitting Casey's head against the storm door of the house until his mother opened the door. Once outside, Young held Casey by the neck while he and Gehring pushed Casey's face against a brick wall. Although Casey repeated, “I am your friend. I am your friend,” the two deputies raked Casey's face along the brick wall before placing him facedown on the ground near the deputies' car. They then began to “hogtie” Casey, fastening leg irons around his ankles and using a chain 6–12 inches long to connect the leg irons to the handcuffs behind Casey's back.⁴

At about this time, deputies Henry Thomas and James Cavitt arrived, and Cavitt told the other deputies, “Relax, guys, I've got it under control.” While the four officers leaned their weight on Casey's back, Cavitt, who weighed approximately 250 pounds, placed his knee on Casey's neck. Saying, “Bite me and you've had a bad day,” Cavitt pulled Casey's head backwards with such force that he broke the spinous processes from one of the vertebrae in Casey's neck and snapped a tendon on the side of his neck. As an expert in biomechanics later testified, the injuries to Casey's neck indicate that the deputies applied 740 pounds of compressive force. Cavitt continued to pull Casey's head back as all four deputies leaned on Casey for approximately three minutes while they finished hogtying him. As this was happening, Nagel saw the color drain from Casey's face, and she told the deputies, “you have just killed my son.” Gehring said that Casey was fine, and the deputies pushed Casey's body—still hogtied—onto the backseat of the deputies' car.

Once Casey was in the car, one of the deputies noticed that Casey was not breathing. They called emergency services, and when the fire department responded, paramedics found that Casey was still hogtied inside the vehicle, while the four deputies stood outside. Because it was impossible to perform CPR while Casey was in this position, paramedics could not attempt to resuscitate him until he first was removed from the vehicle and the various cuffs and chains were unlocked.

Attempts to revive Casey were unsuccessful. The Houston Police Department ruled his death a homicide, but no charges were filed.

Acting for herself and as the representative of Casey's estate, Nagel sued the individual deputies and Harris County, alleging that they caused Casey's death by seizing him with excessive force in violation of the Fourth Amendment. See 42 U.S.C. § 1983. At trial, Nagel presented evidence that the deputies' actions left Casey unable to breathe and caused him to have a fatal heart attack. An autopsy further revealed abrasions to Casey's forehead, nose, face, scalp, neck, shoulders, arms, chest, abdomen, wrists, flanks, and knees; bruises to his head, neck, torso, and extremities; hemorrhaging on his wrists, ankles, and lower back; more than a dozen pattern burns from the taser;...