Linwood Lambert Hearing – January 20, 2021, 11 am Eastern

Transcript: Hearing on the Case of Linwood Lambert

SPEAKERS

  • Rapporteur Marjorie Cohn
  • Commissioner Mr. Max Boqwana
  • Commissioner Judge Peter Herbert, OBE
  • Mr. Thomas Needham Sweeney, attorney for the Lambert estate
  • This report also contains audio from CNN video

Marjorie Cohn  00:00

Welcome to the hearings of the International Commission of Inquiry on Systemic Racist Police Violence against People of African Descent in the United States. These hearings are a process by which witnesses can present accounts of the unjustified killings and maimings of Black individuals by police officers in the United States before an international panel of human rights experts. We now begin the hearing in the case of Linwood Lambert. My name is Marjorie Cohn and I am the rapporteur for this hearing. Presiding over this hearing today is Commissioner Max Boqwana of South Africa, and Commissioner Peter Herbert of the UK and Kenya. The witness for this hearing is Tom Sweeney. There will be 50 minutes for this hearing. Witnesses will testify, followed by a period of questions from commissioners. I will call time at the 30 minute mark and the 45 minute mark, please excuse my interruptions. A short video will be shown with some disturbing content. Commissioners Boqwana and Herbert, I now present to you the witness, Thomas Needham Sweeney. Tom Sweeney, please confirm your name.

Thomas Needham Sweeney  01:25

Good morning. My name is Tom Sweeney. I’m an attorney here in Philadelphia.

Marjorie Cohn  01:32

Do you promise that your testimony to the Commission of Inquiry will be true to the best of your knowledge and belief?

Thomas Needham Sweeney  01:40

I do.

Marjorie Cohn  01:42

You may begin.

Thomas Needham Sweeney  01:45

Good morning, everyone. I appreciate the opportunity to be here to discuss with you this important issue but particularly this case. I was fortunate to represent the estate of Linwood Lambert, who was a gentleman from a town in southern Virginia called South Boston, Virginia. Linwood had a lifetime of mental health issues. And one night he was staying at a at a motel, and he called the police officers, called the police department on himself at this motel, and he was — the police officers responded to his his call and when they arrived at the at the motel, Mr. Lambert, who’s who is African American, voluntarily permitted the officers to put his hands in handcuffs.

He was escorted from the hotel to a nearby hospital. And they did they did this to allow Mr. Lambert to get a psychological evaluation at the hospital. In the period of time, when Mr. Lambert was going to the hospital, he sat quietly in the backseat and everything is captured on videotape. When he arrived at the hospital, he became emotionally unbalanced and disturbed, and began kicking out the window of the back of the — the back window of the police cruiser where he was sitting. The officers opened the door and he exited the vehicle on his own, though he was still handcuffed, and he ran towards the emergency department. And there were three police officers who chased him and up, and he ran headfirst into the sliding doors at the emergency department while the officers were simultaneously tasing him.

And Mr. Lambert fell on the ground and the officers descended upon him and they continue to tase him. And a lot of this is captured on dashcam video from the officers and are written, very disturbing images that garnered a lot of international media attention, at the time of the time that my office received those videos in the course of disclosure in the civil rights case that was brought in the Western District of Virginia, by me in my office. It’s important to note that in those, those videos were were secret. They, no one had seen them until there was a civil rights action filed. Nobody had an opportunity to evaluate the significance of what’s contained on those videos, absent the fact that the family of Mr. Lambert wanted to see some justice done. I’m going to continue with the discussion. I would like to go back and show some of the video which was broadcast on on CNN. And that’s the portion of the video that we have for the for the panel.

But before I get to that, I just want to tell the remainder of the story. So, so everyone understands exactly what happens. Mr. Lambert is sort of, they apply force to put him on his chest. And they not only do they have his arm, his hands cuffed the whole time, but the officers put his legs in shackles, and then they bring him back to the police car. You know, remember they, they have brought him to the hospital for mental health evaluation, but he has this emotional outbreak. And he then, the officers strangely decide that he’s no longer in need of medical attention, even though they tased him a whole bunch of times. And they bring him back to the police car, they sit in the police car for a period of time. And then they bring him not to the — not for an emergency evaluation in the emergency department. But actually bring him back to the to the police department where he’s going to be processed and placed in a holding cell.

As you can tell from portions of the video later, Mr. Lambert, eventually, he has a heart attack in the back of the car. It’s hard to pinpoint when, but you can tell at some point that he’s nonresponsive. And that’s in that’s in the, that’s during the portion of the video where he’s driving from, where they’re driving him from the hospital, back to the police department. When they arrived at the police department., they discover that he is non-responsive, and then they then call the paramedics to bring him back to the hospital where he just once was. And there’s at this point, you know, he is, he has long since passed, and he has had a an arrhythmia, a cardiac arrhythmia which caused his death. So I think there’s a, there’s an important, there are a lot of facets to this story, this tragic tale. And it I think it goes to a lot of the things that that you’re you’re inquiring about and issues that are related to the disparate policing in the United States. But it also raises questions about the disparate medical care that that African Americans receive that people who have who have severe mental illness will have an encounter just like this one.

Where an unarmed, handcuffed and then eventually shackled man, you know, a guy, he’s in his 40s. He has no underlying heart condition. But the situation is far more gruesome than I had appreciated when we brought the lawsuit, like we knew it was bad, knew something that happened, but we didn’t know what was contained on those videos. So I think is a good time to explore that or to show that to the panel.

Video audio  08:48

CNN voiceover: This police video shows three officers in South Boston, Virginia, tasing a man right outside a hospital emergency room. Shortly after, that man 46-year-old Linwood Lambert, died in police custody. The video begins with officers picking Lambert up at a motel early one morning in May of 2013 after several 911 calls were made about noise. In court records, police say because of the way Lambert was acting, they decided to take him to the hospital for a mental health evaluation. They say he made comments about murdering two people and hiding their bodies in the ceiling.

 [Police: We going to take you to the emergency room, make sure you’re good to go.]

Inside the patrol car, police say he kicked out the window. Then the video shows Lambert running straight into the hospital door while handcuffed. He falls to the ground and the officers repeatedly asked him to roll over onto his stomach while threatening to tase him. Lambert then admits he was on drugs [“I just did cocaine, man] but instead of taking him inside the Emergency Room the officer takes him to the police station. The officers tase Lambert multiple times. He’s bleeding, apparently from breaking the squad car window. By the time they reach the police station Lambert appears unconscious in the backseat. He was later pronounced dead at the hospital, after going into cardiac arrest, according to the medical examiner’s report. The report ruled the cause of death as “acute cocaine intoxication,” but the family blames the police and they filed a $25 million wrongful death lawsuit alleging quote, “The officers’ callous disregard for Linwood Lambert in tasering him multiple times and depriving him of the desperate medical care he needed, violated his constitutional rights to be free from cruel and unusual punishment.

Police have denied the allegations, saying Lambert’s erratic actions required the use of force. The South Boston Police Department released a statement saying “we are vigorously defending the case. Our position is affirmed by the reports of two independent well qualified experts in the field.” CNN attempted to reach both South Boston Police as well as Virginia State Police who picked up this investigation after his death. And we have not heard back. The medical examiner’s report did say that, well, cocaine was a cause of death, there were three puncture wounds that looked like they were from a taser. CNN was not able to independently verify how many times Lambert was tasered.

Thomas Needham Sweeney  11:31

What what I think is is striking from that CNN video is they do a really good job of summarizing crystallizing the the overarching aspects of the case. And, but it was, the case itself, it but it only does just scratch the surface, it really has a — it deals with this in the intersection, at least for this particular case, which makes it so difficult, I think, you know, for the African American community in how issues like this, you know, relate to policing and the differing effects of a case like this, because it relates to the intersection of forensic pathology, constitutional law and the immunities that are afforded to police officers. And third, which is really the one that was that oftentimes comes up in cases like this, like you see in in Minneapolis, with the George Floyd matter, is the application state criminal law. So it’s the three things: It’s the forensic pathology, it’s the constitutional immunities issues, and then state criminal law, and I’m really gonna just go over them briefly about what happened in in those three aspects of things.

First, from a forensic pathology point of view. They showed on that CNN clip, the autopsy report. The autopsy was performed by an African American forensic pathologist who had only really been on the job months. This is her first ever significant autopsy that she performed. Te odd thing was she did it while there was an officer from the Virginia State Police, a trooper from the Virginia State Police was present,  a person has no medical training, has no medical knowledge. And, you know, the curious part of it was that there was someone who was supposed to investigate.

I just got a note that sounds like there’s banging going on. There’s nothing really I can do about that. We just got a little bit of a snowstorm and that is just the wind banging against my window. So I apologize for that. I’ll, I’ll try to speak up loudly. But I can’t stop, I can’t stop that banging, it happens all day when there’s a storm. So, but I do want to say that when it comes to the fact that there’s a Virginia State Trooper in the room, it really raises some significant questions because ultimately, the the toxicology reports revealed that Mr. Lambert had trace amounts of cocaine in his system. Trace is an important medical term, with very, very little infinitesimally small, barely detectable. And the forensic pathologist took that really small number and converted it and flipped it around and said he died specifically because of cocaine and heating up, the expression was in that clip was acute cocaine intoxication.

People don’t die of acute cocaine intoxication from trace amounts. You don’t have to go to medical school. You don’t need to be a board certified forensic pathologist to think of that, or to understand that. What’s fascinating is when we took the deposition of the forensic pathologist, and she acknowledged she didn’t know there was a video. She hadn’t seen the video. She didn’t know about the tasing, she didn’t know about all the other circumstances that you know, created, you know, this this situation. And she did at the conclusion of her deposition, confirm, you know, under oath, that she would be willing to reevaluate her assessment of the cause of death. The second thing, too, is the law involving police use of tasers and, you know, just unlawful or excessive force is constantly changing. Today is an inauguration of the President, there’s going to be a new Department of Justice, there’s going to be a new Congress with with a 50/50 split. So one of the interesting things to see is whether or not qualified immunity will remain as a body of case law in the United States.

For the folks who are not Americans or American lawyers, police officers are granted, you know, not full immunity, but immunity from suit. One of the great things about the United States and an amount of American law is, since the Civil War, there’s been a statute that’s in place called Section 1983. 1983 is a claim that allows citizens to bring civil actions against the state, against state actors, for the violation of their constitutional rights, the rights that are embodied in the US Constitution. You can sue state actors, police officers, mayors, things like that, if they violate your rights. But with that right, or that ability or that mechanism to do that, courts, judges made up a way to keep the liability down. And that’s qualified immunity.

 And you see that in particularly in the context of police officers, and the easiest way to get qualified immunity is for police officers just say, well, we feared for our life or he was out of control. Well, the work with the case law that comes down to whether you can use a gun on somebody has been has been addressed by the US Supreme Court,. You can’t use a gun on an unarmed man who is fleeing, you can’t shoot him in the back. That’s pretty well established in the Tennessee vs. Garner case. But the law with respect to tasers is not as as clear. So what happened in this case, the the Fourth Circuit, which is which governs Maryland, North Carolina, Virginia, some of the Mid Atlantic states in the United States, they promulgated some case law that says you can’t use a taser on an unarmed man in handcuffs. So the, while the Linwood Lambert case was pending the Fourth Circuit went even further, and expanded that ruling to say if someone is not moving and they’re unarmed, really can’t use a taser at all. That actually back here, that that opinion had come down, right before a perfunctory scheduling conference or a motion hearing, in our case, and the first question out of the judges mouth when we started that hearing, was what does that mean for you this case? There’s a new decision that came down yesterday. What does that mean? And, and I had to tell him, unfortunately it meant nothing.

Because what happens is, if there’s you know, if there’s expansions of or restrictions on police activity, it really only begins at that particular moment. That’s when the bright line is established. And because the incident had happened before this bright line and established there were there were, you know, there, the police couldn’t be responsible or held liable under the new case law, because it had had just happened. So what happened is ultimately and, to continue a little bit about the ins and outs of the constitutional immunities portion, is the judge said basically, that all of the tasings, though he was handcuffed, as he was moving, they were constitutional. The court said though, that some of the things that happened after he had his leg shackled, and is no longer moving, they were unconstitutional. So that begs the question, he was tased over 20 times, a lot of what you saw on that video, and the use of force was permissible under, under federal law, under the United States Constitution. It was only some of the later tasings that were held to be, that we — back up, the court determined that the judge determined, that the police officers were not immune from those later tasings, meaning they could be held civilly liable.

So that goes to — yes, it’s civil in the United States. There’s civil liability and there’s criminal liability. Criminal liability, forgive me if this is really basic stuff, it’s taken about taking someone’s freedom away, putting them in jail. Civil is just about money. And you know, it’s holding the township responsible from money that are, that’s in the coffers of the government. It’s a peculiar thing. But yes, you can get paid and get, you can recover civil rights damages from government officials for their unconstitutional acts. But what really, in addition to the civil side of things, with respect to this case, the governor of Virginia appointed a special prosecutor to investigate after the the worldwide media attention for this case. The governor had to appoint a special prosecutor to evaluate the circumstances of what happened because the whole world was looking at Virginia, like how did this, how does something like this occur? It was sort of, you know, as a precursor to what took place this past summer with what happened in Louisville, Kentucky, and Minnesota.

But it certainly wasn’t of that scope with Breonna Taylor and George Floyd. But when I was summoned around, was requested to come to Richmond, Virginia, and I met with a special prosecutor and the local Commonwealth attorney, which is a local DA, and we spent hours and hours and hours discussing what potential criminal charges could be brought against the police officers. And ultimately, the decision was made by, after what I hope was a thorough investigation, to not charge any of the officers for any crimes. And what was disheartening from, from my point of view was the Commonwealth’s attorney issued a report and the bulk of the report focused not on the actions of the police officers. However, it focused on the the conduct of Mr. Lambert, his personal history, things that had would never come into court at any, you know, whether it was a trial, whether it was a trial on the civil side or the criminal side. But basically, it was a character assassination of Mr. Lambert. And it was a press conference held, and it came off as in my opinion, that it was well, he deserved it, or he was a bad guy. He had a troubled past. And you see a lot of that. And, you know, you see that, at least I, from my perception in other cases were, well, George Floyd, he passed a, you know, he passed a counterfeit $20 bill. So, clearly, you know, he, if it wasn’t that, he was going to get it from something else.

Like, that is an unfortunate response, I think, that the public has to events of this kind. And it it also goes to one of the things that the the Commonwealth’s attorney focused on, this concept that dovetails back to the forensic pathology aspect of this case, and that is, there’s an idea or diagnosis. The expression escapes me right now, but the diagnosis is called “excited delirium.” Now, there is a tremendous amount of controversy about this particular concept. But the Commonwealth’s attorney said, “Well, we’re not going to charge them then with any crime, because the death wasn’t caused by the police officers, the death was caused by this thing called excited delirium.” 60 Minutes just a few weeks ago, did a an expose on excited delirium, and it’s worth watching. Because it’s a, it is the weirdest thing, and that’s really the best word I can use to describe it. Excited delirium is only happens, it’s only something that is diagnosed after an encounter with police officers, and when there’s someone who passes resulting from an encounter with police officers.

My office retained a world famous forensic pathologist by the name of Dr. Michael Baden. Michael Baden is involved in a number of cases. He was the, he was the family’s pathologist in the George Floyd case. And I remember him saying, you know, they were saying, George Floyd had a really bad, you know, heart condition. And Michael Baden, you know, during a press conference, said, I wish I had the heart that George Floyd had, I wish I had the cardiovascular health that George Floyd had. But Michael Baden in our case, focused on that excited delirium thing. And it he, he basically says, Look, he died from heart arrhythmia that, that electrical conductive device causes your heart to jump or causes it to race. That excited delirium is really just a, you know, it think it’s worth watching the 60 minutes portion, because it’ll explain it far better than I could ever do.

But it really is like, it’s you get excited to death. You know, people get in fistfights out in front of a bar, and one of them dies, they don’t die of excited delirium. That’s only a diagnosis that happens, where there’s a interaction or involvement with a police officer. That was true in this case. And as I said, before, the forensic pathologist did not look at or examine in any way, the video, but she did conclude with this excited delirium, and it’s a sort of, you know, and it’s sort of a catch all diagnosis that is very favorable to police officers. And it basically says, look, the, the person was was was erratic. And he got roughed up by the police and he died of this, excited delirium. The the way I look at it, it’s like, i it an allergic reaction to the fabric on a police officer’s uniform? Because it only happens, the diagnosis only occurs when we’re dealing with police officers. Of course not. That’s just pure silliness. Yet, yet, it’s something that’s very prevalent today.

And it causes like, as I said, there’s these three things that stand out from this case, which make things harder, you know, for, for, for African American families, I think, to to swallow. I know, and I mentioned this to Ms. Lyons before, this case garnered a lot of media attention. And there was there was attention brought, you know, worldwide. And the one, fortunately, which is which is useful, and it’s important, so people know, and people can learn from mistakes that are made by police officers.

But what really nobody understands or still are having a hard time figuring out is that, is the dangerous nature of the taser weapons themselves. The police officers are trained that this is a less lethal form of force. You might have people the world saw a week ago, what happened at the Capitol, and there was a DC Metro Police officer who responded, and in a lot of people may have seen this, but his video came out. His interview came out this weekend. And he was beaten by these rioters. And he was actually tased, whether it was with his own taser or someone else brought a taser. He was tased, this police officer was tased in that insurrection, you know, a week ago, while that happened, he had a heart attack as a result of that, that tasing. He’s a 40 year old guy, fit, thin. And a lot of the officers have no clue about the significance of or the dangers of them, of the use of these weapons. And that’s what happened in this in this particular case, which is, they they jolted him so many times. And keep in mind, they jolted him, and the court said more than about three-quarters of those tasings were permissible. And I would be remiss if I did not say at least advise that there’s two ways to tase. The taser has like two prongs and that is the probe mode. You know, that’s the one, work there at a distance. They have, the taser also has like a component part at the end, where if you’re next to the person, you can zap them and inflict pain.

And that’s called drive stun. The probe mode is far more excessive in the amount of electricity. But really what it creates a conundrum, and the use of these weapons and you saw that CNN video: So don’t make me tase you again, you better listen to me. Well, the whole point of these tasers is it creates what’s called neuromuscular incapacitation, it stops people from being able to control their bodies. And that police officer on that video says, you know, I’m going to tase you again unless you listen to my commands. And that’s kind of the important point. There’s no way for people to act, or respond appropriately to officers’ commands when they’ve been incapacitated. So it snowballs. And in a lot of time, you see that with circumstances like this, where there’s, where someone is tased, and it doesn’t do what the police officers think it will do. And that just creates, and there’s more force applied, and there’s more force applied. And ultimately, it resulted in this particular tragic case. I’ve been speaking for about 30 minutes. I don’t want to run over. If the Commission has any questions and the panel has questions, I’m happy to stop.

Max Boqwana  31:41

Thank you, Tom. I think we get the gist of the matter. But Peter will kick start with the questions.

Judge Peter Herbert, OBE  31:50

Mr. Sweeney, thank you very much for a very precise and clear summary together with the video. And we had that experience of tasers being introduced in the United Kingdom in 2007. Or much, amongst much controversy. I think Amnesty International, actually cautioned the United Kingdom from introducing them in the first place precisely because of the some of the stories we’ve heard in the US. I’ve sat on three mental health homicide inquiries, and I think one of the things that there was a reasonable, is this as a question I pose to you, is it ever right, except in the emergency situation for police officers to usurp the function of medical professionals? Because this is, I suppose, the case that I saw on video is horrific, not only because of the actions of the officers, literally because they’re standing outside a place of safety. And the mental health law in the United Kingdom requires police officers who have the power of arrest, to take a person who is mentally ill, to a place where they will be seen by two mental health professionals. And it’s called a place of safety. So the first thing I ask is, Is there ever a situation when this clearly was not? Unless one counts, you know, kicking in a police window as an emergency that would justify officers removing that person, not only treating them the way they did, but removing him away from a place of safety to a police station?

Thomas Needham Sweeney  33:26

I’m not sure I’m going to answer this question the way you want, or directly because I think it creates a bunch of questions. The point is, is that police officers are, they are like surgeons, they’re trained to, surgeons are trained to cut. Police officers are trained to enforce the law. And once, at least in this circumstance, they had a an event that is a misdemeanor, breaking government property, that trumped everything. But the one thing that I think is is problematic for police officers around the United States, and that is we asked for too much of them, to act as medical professionals and social workers. And it puts them in an impossible bind. We, obviously one of the claims that we alleged in the case, which was the failure to provide medical attention, that is actually a constitutional claim under Section 1983. The failure to provide medical attention is a guaranteed rights under the Constitution.

It gets a little bit questionable because you have to ask a reasonable, it’s like a reasonable person standard, whether a reasonable police officer, in light of that encounter, would have believed that the person needed medical attention now and Peter, I appreciate the question because it does really. If this is not the case for a person needing medical attention, when they brought him to a hospital, then there really isn’t one. They knew already that he needed medical attention. And they suggested it to him, like we should get you looked at. And then that altercation came down. And then that was the decision they made, not to give him, you know, the medical attention necessary. As it relates, I think to UK, in the UK and how it introduced taser weapons, I do think and this is just as a lay person, not just as a legal expert, but as a lay person, that if the tasers were out of the equation, what would have happened to him, they would have tackled him. And he was – okay, maybe he would have, he would have maybe separated his shoulder. He could have had some orthopedic injuries. God forbid he, you know, he suffered a head injury.

But there’s the risk from using an electrical conductive device, it is far greater than that. But again, that’s the thing, that burden, that’s why I’m not really answering your question, because you’re asking of non medical personnel, I mean, they have first aid training and CPR training, most police officers, but they’re not advanced. And we shouldn’t expect them to be advanced. But the point is, you give them a weapon that can cause severe cardiac or neurological injury, that there needs to be more heightened training, you know, if those weapons are used?

Judge Peter Herbert, OBE  36:41

I mean, the point I was really getting at is it’s precisely because they’re not medically qualified, they should take him to the hospital. I mean, that I think just seemed a common sense solution. And if,

Thomas Needham Sweeney  36:55

In this case, if that’s not appropriate, when they already knew it, like that was the whole — that’s really the irony of the story is they brought him there. And they didn’t take him in. You know, irony is probably not strong enough a word. That they knew he had a problem, then something worse happened. And then they still didn’t get him medical care.

Max Boqwana  37:14

But is there any justification, Tom, that has been given by them, taking him out of the place where he could get medical attention back to the police department?

Thomas Needham Sweeney  37:25

Well, the the justification was, it’s actually on the videotape. And I’m going to paraphrase, I’m not going to quote it. But a nurse from the emergency department, emergency room, comes out and asks what’s going on? Like, aren’t you here? So, we were here to bring you, to bring him in. But now he broke our car window, and now we’re taking him to jail. So they, there was a medical professional who asked them, do you want to get him inside and they chose the opposite, they chose to take him further away.

Max Boqwana  38:01

All right, I just want to move to another question. Tom, do you see a systemic problem here where there is a collusion in the intersection between the police and the medical profession in this instance, the pathologist and and the courts? Because it seems as if we have gone beyond just the police brutality, but other parts of the chain seems to be encouraging this type of behavior?

 

Thomas Needham Sweeney  38:30

Yeah, and I think that’s the, that is what really rubs me the wrong way about the story. Now, because you know, and I don’t think there’s a there’s a systemic problem with coordination or combination or collusion or whatever, conspiracy whatever, whatever c-word we need to talk about the meeting of the minds. There’s not a systemic problem. But there is an underlying problem, where there’s any type of communication between the police and medical personnel.

 And forensic pathology is a very, very complicated subspecialty or in the United States and throughout the world. Um, it takes a long time for someone to get board certified in forensic pathology. And the fact that the forensic pathologist in this case, is in a room with a Virginia State Police trooper, who’s supposed to, job is to investigate and get to the bottom of this story, is unsettling. But what’s worse is that at no point did the person engaged in the forensic or the autopsy and preparing a forensic pathological report know anything about what happened. No, and there was certainly was a decision that was made not by the — I will say, to answer your question, Max, I think it’s a it’s a really good one because there was, the forensic pathologist was more than concerned by the fact that she didn’t have access to the videos. And I think she — I can’t speak for, for her. But I do believe she had severe misgivings that she was asked to conduct this examination without all the facts. And without all the evidence. That and I don’t know if the Virginia State Police officer or the trooper knew what was on those videos. It’s important to note that those videos were in the possession of the town police department, the videos were not owned or possessed by this Commonwealth entit, the Virginia State Police. So it I don’t know the answer to whether or not that person had those videos.

Max Boqwana  41:20

You have to unmute, Peter.

Judge Peter Herbert, OBE  41:25

All right, I think it’s switched off and came back on. That’s better. Yes, I just want to pick up on on one thing, you know, that the Virginia’s history, as far as African Americans are concerned is, to say the least, sad and brutal. And the question is really, has there ever been a case of a white man in Virginia, being treated in this way? And if there hasn’t, then, is race not a significant factor, which links all of the pathology, not only the police officers, but the hospital staff even not intervening, the decision not to prosecute, and all through the sequence of events that resulted in no charges being brought against any officer, not even for manslaughter or anything, or due to breach of duty of care.

Thomas Needham Sweeney  42:26

Yeah, I don’t know the full, you know, history of, I’m an attorney who’s licensed in Virginia, but I don’t know anything about you know, if there’s a similar case to this involving an altercation between a white man and a another Virginia police officer. And I will tell you this, in the course of this case, we learned that before Linwood Lambert was brought into this, brought to the hospital, not into the hospital, brought to the hospital, there had been a previous event where there was a mentally disturbed white man inside the emergency room, who had been, was out of control. And he’s had a motorcycle helmet in his hand. And he was swinging it around at the police officers inside that same hospital, just past those doors that we see there. And that that person was not tased, that person lived another day.

And that was sort of one of the shocking discoveries that we made. That is, you know, it is the use of force, more common, or the police officers more quick to use it when you’re dealing with an African American. Remember, and the thing that is I want to highlight, he didn’t have, he wasn’t armed. He was there for mental health, for medical reasons, initially. And the last, you know, and it still results in such a horrific, horrific consequences. You know, that’s the thing, and I know that was so alarming, I know, for the African American community is that even when the police are called to really, they’re there to render aid, to assist this man, he’s still, he still wound up dead.

Marjorie Cohn  44:24

There are five minutes remaining in the hearing.

Max Boqwana  44:29

Thanks so much. So I think the context from what Peter is saying, the color Black becomes on its own a crime in this in these instances. But what I really wanted to ask, what are the remaining remedies that you are currently exploring on behalf of the estate of Lambert?

Thomas Needham Sweeney  44:54

Well, the case is settled and settled confidentially. And so there, there’s nothing left with respect to that, the case itself. I have, my practice has quite a few civil rights cases pending, a lot of them in Virginia. And, you know, it’s just it’s one one small effort, you know, and that’s just that’s sort of how it works in the US. Unless there’s widespread legislation or changes, you know, on the question of qualified immunity, Congress can do away with qualified immunity tomorrow. They can pass a law and say it’s a made up protection for police. It’s not embodied in any part of the US code. It’s out and Joe Biden would sign that. But I don’t know if there’s a stomach for that yet. I would hope so. But –

Max Boqwana  46:00

So that means this these police officers are still operating as as they were before, nothing has happened to them.

Thomas Needham Sweeney  46:10

That is that is true. Yes. They’re not, there were no, there were no professional consequences at all, I don’t believe.

Judge Peter Herbert, OBE  46:20

Just very quickly, I’m actually amazed to hear that it’s constitutional to taser somebody and the movement of the body is makes that permissible, because one of the responses we know for the metabolic releases, when your tasered, your body jumps and reacts involuntarily. So how on earth you can even from a medical perspective, have that legitimized? What, after your tased, and say, if you’re moving, because that almost says well, you’ve got to be comatose, before it becomes unlawful? That was one point. And the second is this. I read in between my hearings on Monday that there are private prosecutions allowed in some states in the United States, there’s only been two private prosecutions in the United States history. I wasn’t able to find out which they were. But I just wondered whether the state of Virginia permits private prosecutions. And if it does, whether that is or not that progressive lawyers in the United States ought to start to use this as part of the toolbox.

Thomas Needham Sweeney  47:25

Yeah, that is not something I think that is an available remedy. And, you know, the one thing is, it’s important to note too, that police officers have tough, tough jobs. And the end, what we’re talking about, is it you know, did they, did they intend to kill Mr. Lambert, and that is something that the prosecution themselves said. No, they did not. They did not intend to do that, because he didn’t die from the tasings. He died from this manufactured medical diagnosis. So that’s, so that that immediately took, you know, a bulk of any potential criminal issues off the table. And then there was a, you know, I think, an evaluation as to whether it was unlawful touching, assault, you know, negligence in some type. And the officers and the, you know, in the way it is in the United States, the prosecutors themselves, they are elected, and they gotta have to have to stand in front of the voters every four years or every two years. And there’s no — this is not just true in this case, it’s true in every case, that no prosecutor wants to come off, no prosecutor wants to come off as soft on crime. You know, obviously, this is kind of this is, I mean, how hard do you need to get when you’re dealing with somebody broke a window? Well, at least in this case, the prosecutors felt all of the force was permissible and not worth not worth any criminal evaluation.

Marjorie Cohn  49:40

This concludes the hearing in the case of Linwood Lambert. We will now have a short break. hearings will resume on the hour with the case of Aaron Campbell. Thank you.

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