By Emily Alpert
Gilroy
– John Davi awoke handcuffed in an ambulance with no memory of
what had happened, not even the three TASER shocks.
Gilroy – John Davi awoke handcuffed in an ambulance with no memory of what had happened, not even the three TASER shocks.
Paramedics called it a seizure.
Officer Nestor Quiñones called it a crime.
The date was Nov. 24, 2004. Dizziness overtook Davi at the trucking company where he worked as a driver. “You don’t look so good, Johnny,” his supervisor said. Dazed, Davi sat down on the loading dock, and then his world went blank.
Co-workers called 911. Within minutes four firefighters were on the scene at Bert E. Jessup Trucking, where they found the Morgan Hill man under a blanket. The seizure had apparently passed, but Davi grew increasingly combative as paramedics examined him, according to firefighter David Gutierrez, one of those who responded. He and two colleagues struggled to subdue the 150-pound Davi. When Officer Quiñones arrived Davi lay face down on the pavement yelling “Help me!” and “No,” while resisting and struggling with firefighters, Quiñones would later write in his report.
By the time Quiñones reached Davi, he had already been told two things: Davi used methadone to control his heroin addiction, and he’d been smoking marijuana on the loading dock. Davi’s wife told firefighters about the methadone; co-workers mentioned the marijuana, according to the police report. Methadone, marijuana, and aggression – to Quiñones it all added up to one thing: Davi was on drugs.
The officer drew his TASER, stunning Davi three times before he could handcuff him.
When Davi awoke in the ambulance, he was strapped to a gurney and paramedics were peppering him with questions: “What day is it? Who is the president?” he later recalled. When Quiñones confronted Davi at St. Louise Regional Hospital, his line of questioning was very different: “What are you on?” Davi recalled the officer asking.
Davi told Quiñones he hadn’t touched drugs since 1995, the officer wrote in his report. Dubious, Quiñones took a blood sample, then arrested Davi on suspicion of being under the influence of a controlled substance and resisting arrest.
“I just had a seizure, and I’m being tried for a seizure?” Davi said later, soft-voiced behind a salt-and-pepper mustache. “I was already having a bad day.”
Lawsuit targets
officer, firefighters and the city itself
Still dressed in his hospital gown, Davi was hauled off to the county jail in San Jose where he stayed until 1:30am when his wife picked him up. Within hours, the results of his blood tests came in – negative for everything except the benzodiazepine that emergency room doctors had pumped into his system. The drug is commonly used to treat seizures.
Two weeks later, the district attorney charged Davi with resisting arrest. Davi spent four months fighting the charge in court before the public defender picked up his drug test and medical records. The district attorney dropped the charges.
But Davi had already enlisted a San Jose attorney, Anthony Boskovich, to file a civil rights lawsuit against Quiñones, firefighters Art Amaro, Cliff Colyer and David Gutierrez and unnamed others, and the City of Gilroy. The suit seeks unspecified monetary damages.
“I was done wrong,” Davi said, “and I felt that my rights were totally violated.”
The city’s attorney disagreed. Quiñones’ decisions were sound and his report complete, said Tim Schmal.
“How do you provide medical attention to this man if he’s thrashing around like a carp? Mr. Davi’s actually better off for Officer Quiñones having used the TASER to obtain his compliance,” Schmal said. In addition, he said, the evidence Quiñones confronted on the scene supported the drug charge.
Symptoms can
be confusing
Was Davi having a seizure?
It’s tough to tell whether an unruly suspect is under the influence, undergoing a seizure, both, or neither, said Capt. Kurt Svardal. “We go by behavior.”
Epileptics are unlikely to fight during a typical seizure, said Dr. Anthony Vitto, a neurologist at Saint Louise Regional Hospital, but may grow frightened or belligerent afterward, during a period called the post-ictal state. In a pamphlet designed for peace officers, the Epilepsy Foundation discourages police from raising their voices, approaching suddenly, or grabbing hold of a post-ictal patient.
Yet it’s not hard to distinguish seizure-related behaviors from intentional combativeness or intoxication, said Gary Gross, director of the Epilepsy Foundation’s Jeanne A. Carpenter Legal Defense Fund. Though some epileptics might grow aggressive, “It would be very rare for a situation to arise requiring the use of force,” he said.
In fact, responding to concerns about the use of excessive force by police encountering seizure victims, the foundation developed a curriculum in 1993 to teach officers how to identify and respond to seizures. More than 20,000 departments received training materials that will be updated this spring.
In Gilroy, officers learn about seizures during basic first-aid training, said Svardal, but the department doesn’t use the Epilepsy Foundation’s materials.
“If Nestor Quiñones isn’t liable because he didn’t know, the city is, for not training him,” argued Boskovich. “Seizure disorder is not uncommon, and if they don’t train police to recognize it, people like Mr. Davi are going to get tased.”
Seizure not included
in police report
“Tasing him is one thing,” added Boskovich, “but what bothers me more is that Quiñones writes an incomplete report,” omitting a major point: Davi had a seizure.
Quiñones reported that Davi had no history of seizures and that Gutierrez “in essence told me … (Davi) was not in a seizure.”
However, in his own report Gutierrez seems to contradict Quiñones by identifying seizure as one of Davi’s symptoms. And Gutierrez ruled out an overdose-induced seizure when he wrote in his report, “R/O overdose induced seizure,” Boskovich said. R/O means ruled out, according to Gilroy engineer/paramedic Lani Antonio.
Dr. Vitto wrote in his medical report: “(Davi) is a 48-year-old man with a first-time seizure,” the same diagnosis made by Dr. Nimisha Shah, who referred the case to Vitto.
Schmal contends that “R/O” does not signify that a diagnosis was ruled out, and cited the same section of Gutierrez’ report to show that firefighters believed Davi to be under the influence.
Although Davi’s blood tests came up negative for illegal drugs, Schmal said Quiñones had ample evidence suggesting that Davi was on drugs: firefighters had noted his “altered level of consciousness” and cited drugs as a possible factor, based on his wife’s statement about methadone. And Quiñones himself reported that unnamed coworkers alleged that Davi had been smoking marijuana.
“I don’t know to this day that what happened … was not unrelated to Mr. Davi’s consumption of substances,” said Schmal. “I also can’t rule out the possibility that this poor man didn’t have … a grand mal seizure.”
But that doesn’t make the city or emergency responders liable, Schmal said, and it’s not Quiñones’ responsibility to relay medical information to the DA. If the district attorney wanted opinions from the paramedics or Davi’s doctors, he said, “it’s well within their authority to obtain that.”
Boskovich said, “Police are trained to put every important fact in these reports. … If the DA knew about (the seizure), they never would have filed in the first place.”
Epileptics arrested across the country
Davi isn’t alone. In the past two years, the Epilepsy Foundation has received 50 or more reports of apparent improper arrests of persons experiencing a seizure, Gross said.
Last November, an epileptic man was tased, beaten, and arrested by Michigan police, after a neighbor mistook his arm spasms for public masturbation. He was found not guilty, but ordered by the court to spend 20 days in a criminal mental facility. A year earlier, deputies in Boulder County, Colorado, tased an epileptic man six times after he crashed his car, then arrested him for resisting officers and driving with a suspended license. The county avoided a lawsuit by settling – they paid the man $90,000.
Gross believes there are many similar cases the foundation never hears about.
A second seizure wracked Davi in April, he said, and forced him to stop driving trucks. Today, he works part-time for a landscaping company, supporting five children. If Quiñones had apologized, he said, “we wouldn’t be doing this.”
Quiñones “seems like a good guy,” Davi added. Among Gilroy police, he’s known for his gentle style and human touch, according to fellow officers. Schmal said Quiñones hasn’t used his TASER since Davi’s arrest.
But that won’t dissuade Davi from pressing his suit.
“My family, friends, and co-workers told me, ‘You need to do something,'” he said. “If not, they’ll keep doing this.”
Emily Alpert covers public safety issues for the Dispatch. She can be reached at 847-7158, or at
ea*****@gi************.com
.
