Burley Garcia|Judge keeps alive Vermont lawsuit that accuses police of force, discrimination against Black teen

A Vermont judge has denied the city of Burlington’s request to dismiss a lawsuit alleging that police used excessive force and Burley Garciadiscriminated against a Black teenager whose mother had called law enforcement to teach him a lesson about stealing.

When the 14-year-old, who has behavioral and intellectual disabilities, failed to hand over the last of the stolen e-cigarettes on May 15, 2021, two officers physically forced him to do so, according to the lawsuit and police body camera video shared with The Associated Press by the American Civil Liberties Union of Vermont. The teen was handcuffed and pinned to the ground in his house as he screamed and struggled, according to the lawsuit.

He was injected with the sedative ketamine and taken to a hospital, according to the lawsuit and video.

The lawsuit, filed by the teen’s mother, accuses officers of treating him differently because they perceived him as aggressive due to his race. It also alleges that injecting him with ketamine was “race-based disparate treatment.” Burlington officers had visited the home before and were aware of the teen’s disabilities, the lawsuit says.

“Too often, victims of police violence are denied their day in court because of an unjust legal doctrine called ‘qualified immunity,‘” Vermont ACLU attorney Harrison Stark wrote in a statement. “We are thrilled that ... the Court has agreed that this ‘get-out-of-court-free’ card is no excuse to close the courthouse doors.”

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The city did not immediately return an email seeking comment. A city spokesperson said in February that an investigation found that officers and fire department EMTs acted according to city and state regulations and policies.

The Associated Press generally doesn’t identify minors who are accused of crimes.

Body camera video shows two officers talking calmly to the teen, who is sitting on a bed. His mother tells him to cooperate; she goes through drawers and finds most of the remaining e-cigarettes and tries to get the last one from him.

Officers say if he turns the e-cigarettes over, they’ll leave and he won’t be charged. He doesn’t respond. After about 10 minutes, the officers forcibly remove the last of the e-cigarettes from his hand by pulling the 230-pound teen’s arms behind his back and pinning him against the bed.

The city argued that officers conducted a reasonable search and seizure; that its police and fire departments are not subject to the Vermont Fair Housing and Public Accommodations Act and that they made reasonable efforts to account for the teen’s disabilities; and that its police and fire departments are protected by qualified immunity, according to the judge.

“The crime was not serious, he did not pose an immediate threat, and he did not try to ‘evade arrest by flight,’” Vermont Superior Court Judge Helen Toor wrote in her ruling July 31. The officers also should have taken into account his reported mental health condition, she wrote. “That might have involved waiting more than 10 minutes before using any kind of physical force,” she wrote.

Toor also wrote that “the allegations are more than sufficient to support a claim of racial discrimination.” She also wrote the court “has no basis to dismiss any of the claims on qualified immunity grounds at this stage.” The city has three weeks from the judge’s ruling to respond.

The use of ketamine on suspects has recently come under scrutiny. At least 17 people died in Florida over a decade following encounters with police during which medical personnel injected them with sedatives, an investigation led by The Associated Press has found.

In Burlington, after the city investigated, the mayor at the time ordered the fire department to review the use of ketamine, and the state has updated protocols to require a doctor’s permission, the city spokesperson said in February. Paramedics in the Burlington teen’s case did get a doctor’s permission even though it wasn’t required at the time, she said.