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Officers dragging Richard Cox into a holding cell on June 19.
Four of the five city cops sued for allegedly violating Richard “Randy” Cox’s constitutional rights claim in new court filings that their actions were reasonable and covered by “qualified immunity,” arguing that the paralyzing injuries suffered by the 36-year-old New Havener while in police custody stemmed in large part from his own “negligence and carelessness.”
The Elicker Administration has taken a similar tack, invoking in a separate new court filing “governmental immunity” in the case and pointing to the now-paralyzed New Havener’s “contributory negligence.”
New Haven Police Sgt. Betsy Segui and Officers Oscar Diaz, Ronald Pressley, and Luis Rivera put forward the former set of legal defenses on Monday and Tuesday in separate federal court filings in an ongoing civil lawsuit filed by Cox.
The court filings represent the first time since Cox’s arrest on June 19 that these four police officers — in this case, through each of their lawyers — have said anything publicly about what happened that night and about their roles and responsibilities in the paralyzing injuries that Cox suffered while in police custody.
The filings come nearly two months after Cox’s legal team filed a civil lawsuit in federal court against the city and against all those same officers seeking $100 million in damages for the cops’ alleged violations of the paralyzed 36-year-old New Havener’s constitutional rights.
The officers’ invoking of “qualified immunity” refers broadly speaking to a frequently invoked portion of common law that allows officers to claim that they acted in an objectively reasonable manner in the moment of an alleged civil rights violation.
As for Cox’s purported role in his own suffering, Segui’s lawyer wrote the following in a Monday court filing in defense of his client: “The Plaintiff’s own negligence and carelessness contributed to and was a substantial factor in causing the injuries and losses alleged in the Complaint, in that: a) He failed to act as a reasonable, prudent person under the circumstances; b) He failed to comply with the lawful commands of officers on scene; and c) He actively interfered with the investigation conducted by officers on scene.”
The cops’ claims of qualified immunity in this federal court case come roughly two years after a landmark state police accountability bill championed by New Haven State Sen. Gary Winfield modified and limited state allowance for such a defense.
The only officer sued in this case to put forward a substantively different legal defense so far is Jocelyn Lavandier. Her Hartford-based attorney argued in a motion filed last week that the case should be dismissed on the grounds that his client had never been properly served. (Update: On Nov. 28, Lavandier’s attorney withdrew the motion to dismiss and filed an answer document with the court that invokes qualified immunity on behalf of his client and that offers a similar set of defenses as put forward by the other officers in this case.)
The city cops sued in this case aren’t the only ones to have recently filed legal defenses calling for a trial by jury, claiming immunity from liability, and pointing the finger at Cox for contributing to his own injuries while in police custody.
The Elicker Administration, through a Hartford-hired defense attorney, has put forward a similar if pared down legal defense in arguing in a Monday filing that the City of New Haven is protected from this lawsuit by “governmental immunity” and by Cox’s own “contributory negligence.”
In a comment provided to the Independent Wednesday for this article, city Corporation Counsel Patricia King said: “The City’s attorney filed a responsive pleading as required to preserve all the City’s rights during the legal process. The City of New Haven remains committed to pursuing an early, reasonable resolution of all issues raised in the lawsuit.”
This flurry of legal filings comes more than five months after police arrested Cox on weapons charges without incident at a Lilac Street block party on June 19. En route to the police station, the driver of a prisoner conveyance van slammed on the brakes to avoid crashing into another vehicle at the intersection of Division and Mansfield Streets. That abrupt stop sent Cox flying head first into the wall of the van, injuring his neck and spine. The driver of the van later called for medical help but, instead of asking for an ambulance to come to the scene, the driver proceeded to take Cox to the detention center at 1 Union Ave. There, rather than waiting for a medical crew to attend to Cox’s crumpled and paralyzed body, officers at the police lock-up accused Cox of lying, demanded he stand up, pulled him out of the van, placed him in a wheelchair, then dragged him across the floor into a cell. The case has sparked national outrage.
Meanwhile, the five police officers involved in this incident remain on paid administrative leave as the state’s attorney’s office considers whether or not to arrest and prosecute the officers. In the wake of the incident, the city has also upgraded its transportation policies and department-wide training on “active bystandership” and deescalation in hopes of avoiding a similar future incident.
"Contributory Negligence"
City-hired lawyer Thomas Gerarde.
So. What did the city and these four cops say in their legal defenses filed in Cox’s ongoing federal court case this week?
In a four-page response filed with the federal court on Monday, Hartford-based lawyer Thomas Gerarde, representing the City of New Haven in this case, called for a trial by jury of the claims made in Cox’s lawsuit.
In the “affirmative defense” section of the response, Gerarde wrote that Cox “fails to state a claim upon which relief may be granted.”
The city-hired lawyer wrote that Cox’s claims against the City of New Haven “are barred by governmental immunity.”
And he wrote that Cox’s claims against the city “are barred by contributory negligence.”
Nearly all of the city police officers sued in this case took similar legal stances in their own separate filings submitted to the federal court this week.
In a 10-page response filed on Monday, Segui’s lawyer, local attorney Thomas Katon, denied the allegations made against his client and called for a trial by jury on all of the claims.
He also offered four so-called “affirmative defenses” in support of Segui.
First, Katon wrote, Cox’s lawsuit fails to “state a claim upon which relief can be granted.”
Second, Segui’s actions and conduct “did not violate any clearly established constitutional or federal statutory right of which Defendant reasonably should have been aware and she is therefore entitled to qualified immunity.”
Third, Cox’s claims are “barred by the doctrine of governmental immunity” under state statute §52 – 557n and common law.
And fourth, under state statute §52 – 557h, to the extent that Cox was injured, his own “negligence and carelessness” were “a substantial factor” in causing such injuries.
Also on Monday, Diaz’s lawyer, Rocky Hill-based attorney James Tallberg, filed an eight-page federal court response denying wrongdoing and calling for a trial by jury.
In the affirmative defenses section of that legal filing, Tallberg invoked Diaz’s “qualified immunity from all liability” on the grounds that the officer’s actions were “objectively reasonable under the circumstances of which he was aware” and “did not violate any clearly established constitutional or federal statutory right of which he reasonably should have been aware.”
Tallberg wrote that Diaz is “entitled to governmental immunity in that his actions were performed in good faith, without malice, and in the discretionary performance of governmental duties.”
And he claimed that Cox’s “own negligence and carelessness contributed to and was a substantial factor in causing the injuries and losses alleged in the complaint.”
In still another 10-page federal court filing on Monday, Rivera’s lawyer, Middletown-based attorney Beatrice Jordan, denied the claims made against her client and called for a trial by jury.
“The actions and conduct of Officer Luis Rivera were objectively reasonable under the circumstances of which he was aware, and he is therefore, entitled to qualified immunity from all liability,” Jordan wrote.
She added that Cox’s “own negligence and carelessness contributed to and was a substantial factor in causing the injuries and losses alleged in the complaint, in that he failed to act as a reasonable, prudent person under the circumstances.”
In an 11-page court filing submitted on Tuesday, Pressley’s lawyer, North Haven-based attorney James Williams, offered a near identical denial of wrongdoing, call for trial by jury, claim of qualified immunity, and assertion that Cox’s own “negligence and carelessness” contributed to his injuries.
Asked for comment on the city police officers’ invoking of qualified immunity in this case, R.J. Weber, who is one of the lead attorneys representing Cox in this federal lawsuit, said he is unsurprised by that defense. He noted that it’s a common one for police officers facing civil lawsuits. He said he’s confident that such a defense “won’t hold water” in this case.
Weber also called “ridiculous” the cops’ claims that Cox is in large part responsible for his injuries because of his own “negligence.” All one has to do is “watch the video,” Weber said, to know that that is not the case.
Did the city really hire Gerade? The city is insured, and in most such cases, the insurer is obligated to defend the city and the insurer, not the insured, hires and pays for the lawyer.