Sheriffs negligent for violent take-down of elderly visitor – $65K damages awarded
In the recent decision of Sweeney v. British Columbia 2018 BCSC 1832, the plaintiff sought damages after being injured after a takedown at the Victoria, B.C. courthouse in 2014. The issues before the Court were whether the sheriffs breached the standard of care in forcibly escorting Mr. Sweeney to the exit of the courthouse and/or executing the takedown, whether Mr. Sweeney was contributorily negligent, what injuries Mr. Sweeney suffered as a result of the takedown, and what damages are appropriate to compensate him for his injuries. The counsel for the Plaintiff was Karl Hauer. The counsels for the Defendant were Andrea Glen and Stephanie E. Lacusta
On September 5, 2014, Richard Sweeney entered the Victoria Courthouse to file some papers pertaining to a residential tenancy matter. Within one minute of entering the courthouse, two sheriffs employed by the British Columbia Sheriff Service forcibly escorted Mr. Sweeney to the courthouse exit. Within the next 15 seconds, during the escort, one of the sheriffs executed a takedown of Mr. Sweeney. Mr. Sweeney suffered a laceration to his forehead, a concussion, exacerbation of pre-existing injuries to his right arm and shoulder and a rotator cuff tear to his right shoulder. Mr. Sweeney sued British Columbia, which runs the sheriff service, claiming that the sheriffs were negligent in using excessive force on him and their negligence caused him injuries including a mild head injury and orthopedic injuries to his right arm.
British Columbia denied liability. It argued that the sheriffs acted within the standard of care in forcibly escorting him to the exit of the courthouse and executing a takedown of Mr. Sweeney because he refused a request by a sheriff to search his backpack and struggled during the escorted removal. British Columbia argued that if that the sheriffs used excessive force, Mr. Sweeney’s actions were such that he is contributorily negligent for his injuries. British Columbia did not dispute that Mr. Sweeney suffered an injury to his head but argued that it was short-lived and he suffered no worsening to his pre-existing injuries.
In 2010, Mr. Sweeney, 53 years old at the time, was playing soccer and suffered a contusion injury to his spinal cord during a soccer game. He was hospitalized for several weeks. He wore a collar to treat the spinal cord injury to his neck for several months. Mr. Sweeney suffered neuropathic pain due to this injury, especially in his right arm. He lost significant function and strength in his right arm and shoulder. He developed a frozen shoulder which took two years to resolve. Between 2010, when Mr. Sweeney suffered the spinal cord injury, and September 2014, Mr. Sweeney had recovered somewhat from his spinal cord injuries. He could not return to work as a warehouseman because he could no longer engage in the heavy lifting that was required for that position. At the time of the September 2014 takedown he was not employed. He currently works night shifts as a janitor at several restaurants in the Victoria area.
The Court found Mr. Sweeney to be a straightforward and credible witness. He appeared, in all of his evidence, to be trying to tell things as he recalled them. He did not overstate his injuries or understate his 2010 injuries and the effect they had on him. The sheriffs also each presented in a straightforward manner without any suggestion of defensiveness. However, their evidence is not consistent as between them, even though they were both present, saw and heard the same things, and both prepared written reports after the incident. Nor is their evidence entirely consistent with the videotape. In some respects, Mr. Sweeney’s evidence was more consistent with the videotape.
Mr. Gabrielle, the use of force expert for British Columbia, expressed his opinion that the sheriffs were acting within the Sheriff Policy Manual guideline and their authority under the Sheriff Act to maintain control of Mr. Sweeney until he was escorted out of the courthouse. He opined that the takedown was within the range of options to be considered when dealing with a situation involving what he saw to be active resistance. Mr. Summerville, the expert on the use of force for the plaintiff, expressed his opinion that the use of force applied by the Sheriffs was excessive.
In addressing the first issue as to whether the Sheriffs breached the standard of care, the Sheriff Policy Manual requires the sheriffs to use the minimum amount of force necessary to gain control of a subject. The court accepted the opinion of Mr. Summerville, an expert on the use of force, supported by the evidence of Acting Sergeant Kain, that putting Mr. Sweeney against the wall was far safer than a takedown in the circumstances given the stairs and a very hard ground surface onto which Mr. Sweeney was forcibly put down. A takedown was not, as the Sheriff Policy Manual requires, the minimum force necessary in the circumstances. The court concluded that a takedown was not within the reasonable range of options available.
As a result, the court found that the sheriffs both breached the standard of care in taking physical control of Mr. Sweeney at the outset, in not communicating about what they were going to do in the face of danger they both recognized as soon as they took control of him and in not changing course prior to being in the dangerous position of being on the stairs. The Court concluded that the sheriffs breached the standard of care by failing to communicate after each of them decided to change their course of action. The Court found that Deputy Sheriff Bergen breached the standard of care in executing a takedown. The plaintiff had established negligence against the sheriffs. The force must be proportional to the risk presented, the force must be the minimum required to effect control, and the force shall be discontinued at the earliest reasonable opportunity once control is established.
In reviewing the events, the Court found that Mr. Sweeney entered the Victoria courthouse from Courtney Street. That entrance has an exterior set of stairs, a set of glass doors, and an interior set of stairs, at the top of which is a hallway. Mr. Sweeney testified that a few months prior, he had been in the Victoria courthouse to assist a friend who had a matter at the courthouse that day. When he was in the courthouse, a sheriff told him that he could either permit a search of his backpack or leave it in the sheriffs’ office and pick it up on his way out of the courthouse. He chose to leave it in the sheriffs’ office.
In the present circumstance, a sheriff (Deputy Sheriff Bergen) asked him if he minded if he searched his backpack. Mr. Sweeney testified that he replied that he did mind but that it was the sheriff’s job so he could go ahead. He testified that as he said this, he took his backpack off, unzipped it and put it on a chair. Deputy Sheriff Bergen testified that he was confused as to whether Mr. Sweeney was consenting to the search. He asked Mr. Sweeney to step away and sit down. Mr. Sweeney refused. The sheriffs’ door opened and two sheriffs exited the sheriffs’ office, one of whom was Acting Sergeant Kain. Acting Sergeant Kain testified that he saw Deputy Sheriff Bergen with Mr. Sweeney and went down the hall to provide cover because Deputy Sheriff Bergen was alone. After Deputy Sheriff Bergen asked him the third time if he minded if his backpack was searched, a second sheriff (Acting Sergeant Kain) approached him and asked him to move away from his backpack so that Deputy Sheriff Bergen could search the backpack. Mr. Sweeney testified that he refused to move away and told the sheriffs that if his backpack was going to be searched he was going to stay with it. He says that after that exchange, Acting Sergeant Kain took him by the right arm. Deputy Sheriff Bergen took him by his left arm and they proceeded to march him towards the exit through which he had entered. Mr. Sweeney testified that neither sheriff gave him the option of leaving his backpack in the sheriffs’ office.
Mr. Summerville opined that so long as the behaviour is not physical, the sheriffs should have been attempting de-escalation techniques. This is consistent with the National Use of Force Framework. The interaction between Acting Sergeant Kain and Mr. Sweeney was put to Mr. Summerville as an attempt to de-escalate with no positive result. The Court concluded that the sheriffs did not make sufficient attempts in quality or in duration to de-escalate. Instead, Acting Sheriff Kain’s actions in taking over the interaction as he did and taking minimal time to de-escalate before taking physical control of Mr. Sweeney escalated the situation. When the sheriffs took physical control of Mr. Sweeney, they applied force to him. The Court concluded that taking physical control of Mr. Sweeney was not within the reasonable range of options available to the sheriffs at the time. The Court concluded that Acting Sergeant Kain and Deputy Sheriff Bergen did not act as reasonable sheriffs would have in all of the circumstances and were in breach of the standard of care.
Both sheriffs testified that they used the proper escort arm position with Mr. Sweeney. Acting Sergeant Kain was on Mr. Sweeney’s right and Deputy Sheriff Bergen was on his left.
The Court found that Mr. Sweeney had a negative attitude towards the authority of the sheriffs and had displayed it throughout his interaction with them. The Court also found that Mr. Sweeney complained about the pain that was being caused to him on his injured side. Mr. Sweeney’s words were provocative and that they played a role in his ongoing assessment and of the danger of the situation as it unfolded, especially since it is clear that Mr. Sweeney was actively resisting Acting Sergeant Kain’s positional hold on his arm.
As the sheriffs approached the staircase, Mr. Sweeney and Acting Sergeant Kain appeared to be struggling. It is not possible to say whether Mr. Sweeney’s arm movement was movement he caused himself, or movement caused by Acting Sergeant Kain, as Mr. Sweeney testified, trying to get his arm into position to which it would not go. However, there is no doubt that Mr. Sweeney’s upper body was moving. At one point his elbow was raised between its natural hanging position and his shoulder.
Mr. Sweeney has no recollection of the takedown. His last memory is when he was at the top of the stairs. The videotape evidence shows that when Deputy Sheriff Bergen executed the takedown manoeuver, Mr. Sweeney was three steps down, Acting Sergeant Kain was one to two steps down and Deputy Sheriff Bergen had one foot on the stairs and the other foot on the top of the stairs. Deputy Sheriff Bergen pulled Mr. Sweeney around and back up the stairs such that he landed on his front, on the floor at the top of the stairs but facing away from them, outside the sheriffs’ office door. Acting Sergeant Kain also went down. He appeared to land partially on top of Mr. Sweeney.
Both use of force experts also testified as to the importance of situational awareness and constantly assessing the situation. The Court found that the sheriffs’ evidence demonstrates that they did not do this. The sheriffs escorted Mr. Sweeney towards a set of stairs with a set of glass doors in the middle. Both sheriffs knew these stairs were ahead. Although only Acting Sergeant Kain used the words tunnel vision, I find they both had tunnel vision in achieving their objective of removing Mr. Sweeney from the courthouse. Both testified about the dangers of the stairs. They changed course far too late to avoid the danger of the stairs that was inevitable from the outset. They did not communicate with each other during the entire encounter with Mr. Sweeney. Deputy Sheriff Bergen’s takedown decision carried the day by virtue of gravity and the force of his strength.
The court then address the following issues:
(a) Did Mr. Sweeney engage in blameworthy conduct?
(b) If so, did his blameworthy conduct cause his injuries?
(c) If the blameworthy conduct caused the injuries, what is the relative fault (blameworthiness) compared to the defendants’ blameworthy conduct?
The information the sheriffs had to assess the danger and to address the danger was greater than Mr. Sweeney’s. The sheriffs were trained to execute forced escorts safely. They were physically in control of the situation. They were aware of the danger which the stairs and the glass doors posed with a struggling subject. None of this was within Mr. Sweeney’s training or expertise. Mr. Sweeney was focused on his injured arm and the pain, not the danger of the situation. Mr. Sweeney was attempting to communicate with Acting Sergeant Kain, but the sheriffs were only replying to tell him to stop resisting without considering whether that communication would be effective given what Mr. Sweeney was saying. Mr. Sweeney was struggling for two reasons: pain, which does not carry moral blameworthiness, and resistance, which does. In the circumstances, the Court found that the comparative blameworthiness is overwhelmingly on the part of the sheriffs. The Court apportioned liability 5 percent to Mr. Sweeney and 95 percent to the sheriffs.
In assessing damages, Mr. Sweeney sought general, or non-pecuniary, damages. Mr. Sweeney suffered a laceration above his left eye during the takedown. In the weeks following the takedown, Mr. Sweeney had problems sleeping, nausea, vomiting, headaches, migraines, increased pain in his right arm and shoulder and decreased use of his right arm and shoulder.
He has constant right arm pain rated as a six or seven out of ten (with ten being the worst pain imaginable). He has pain in his shoulder that has gone up from a two to a five or six out of ten. Mr. Sweeney testified that he is more irritable and easily frustrated. He says that due to the weakness and pain in his arm, he cannot swim with his granddaughters and he has not taught them to play tennis, something which he would have liked to do.
He is physically active. He must now do those things with more pain and different pain than he had before, and with a recurrence of disruptive migraine headaches. This was a violent and traumatic event undertaken by peace officers who placed Mr. Sweeney into a position that caused him pain due to his pre-existing injury, did not listen to him when he told them that, and then exacerbated that injury permanently. In addition, he suffered an open head wound and a concussion. Mr. Sweeney had a quick and permanent recovery from the laceration to his head and his concussion. The damage to his rotator cuff and the orthopedic pain is permanent and lasting. Mr. Sweeney has a real disability in terms of reduced strength. The pain and migraines impair his enjoyment of life. Mr. Sweeney’s situation is worse than it was before because he has more and different pain. Mr. Sweeney’s family relationships are mildly impaired: he carries on but with reduced enjoyment due to his pain and headaches and a perception that he is not able to do what he used to.
After considering all of the factors, the Court awarded $70,000 in non-pecuniary damages. The Court reduced those damages by 5% for contributory negligence, for a net award of $66,500.