Chokehold

A run-in with police left Godwin Omokaro blind and brain-damaged, but a federal judge won't let a jury even consider whether his rights were violated

In an affidavit, Omokaro says that he never kicked or bit the officers, was never asked to sign a ticket, and was never told he was under arrest. Bryant also denies that Omokaro attacked the officers in any way.

Despite these discrepancies, the IAD investigation finding was "inconclusive" because they could not talk to Omokaro. When they first began investigating the case, Omokaro was in a coma. The police tried again when he was in rehabilitation, but his lawyers wouldn't let him talk to investigators. The Dallas County district attorney presented the case before a grand jury, but it declined to indict the officers.

To Omokaro's attorney Ed Moore, this is clearly a case of excessive force. "My client failed the attitude test, and it went to shit from there," he says.

Mark Graham
Officers Kyle Hensley and Scott Whitemyer claimed the unarmed Omokaro viciously resisted arrest after they stopped him for a curfew violation.
Mark Graham
Officers Kyle Hensley and Scott Whitemyer claimed the unarmed Omokaro viciously resisted arrest after they stopped him for a curfew violation.

With Moore's help, Omokaro filed suit in state district court against Hensley and Whitemyer and the Dallas Police Department alleging negligence and the violation of his civil rights. The police refused to talk to the Dallas Observer, citing pending litigation.

The civil rights portion of the suit was transferred to federal court. In court documents, Moore argues that Dallas police officers and police policies and procedures were at fault for Omokaro's injuries. He bolsters his case with the opinion of national law enforcement expert Lou Reiter, a former deputy chief of the Los Angeles Police Department. In addition to consulting with police departments around the country on issues from deadly force to police discipline, Reiter has been retained in more than 500 police-related lawsuits. In two-thirds of those cases, he has worked for the defense.

In Reiter's opinion, Dallas police violated their own policy, which dictates that "force should be used as a last resort and only after exhausting reasonable alternatives."

Instead of defusing the situation, Reiter says, the police officers exacerbated it. While an agitated Omokaro was on the phone, Reiter says, the "reasonable and trained response" on the part of the officers would have been to summon an objective third party -- the supervisor on duty -- to the scene. The neck-restraint hold, he says, was an unreasonable use of force, because at the time it was used, Omokaro, by the officers' own admission, was simply "passively resisting-refusing to remove his hands from underneath his body."

Furthermore, the police violated their own policies -- and nationally recognized protocol -- in dealing with a person who has been subjected to a chemical spray, which can cause swelling in the trachea and mucous membranes of the nose, and a chokehold. Omokaro was placed on his stomach in the back of the police car, while a 1994 DPD training bulletin states that subjects sprayed with a chemical agent "...should be placed in a seated position or rolled on their side so breathing is not restricted...Officers shall constantly monitor...loosen clothing around neck, check pulse rate and monitor breathing. If necessary establish an airway."

None of this, however, was done with Omokaro, Reiter notes. "This constituted deliberate indifference, in my opinion, to the medical needs of Mr. Omokaro."

Although the dangers of the chokehold and the proper monitoring techniques used in administering it were common knowledge to law enforcement for years, it wasn't until after the Omokaro incident that the Dallas Police Department created an appropriate policy dealing with the issue. In April 1997, the DPD issued an order stating that if a person has been sprayed with a chemical agent, the lateral vascular neck restraint should be applied only in extreme circumstances. The person should not be placed in a prone position, and his vital signs should be checked.

Despite the conflicting claims in the case, U.S. District Judge Joe Fish of Dallas determined in June 1998 that it lacked sufficient merit to be tried. Essentially, he put the equivalent of a legal chokehold on the case. In granting the city's motion to dismiss the civil rights suit on summary judgment, Fish concluded that the police officers had used reasonable force in subduing a person who was resisting arrest.

Omokaro has appealed the judge's ruling to the 5th U.S. Circuit Court of Appeals in New Orleans. A trial in state court against the police for negligence is scheduled for next July. The state Legislature has capped the monetary award a plaintiff can receive from a municipal body. The most Omokaro can probably recover if he wins the negligence suit is $250,000, according to Moore.

"There are two real stories," says Moore. "What the police did -- attacking Godwin without provocation. And the power of a federal judge to dismiss his case when there were clearly fact issues for a jury to decide. Few rulings irk me the way this one does. It was so wrong. It is appalling to take people's rights away without any lawful basis. What the judge did was almost as bad as what the cops did."

Omokaro doesn't completely understand all of the legal machinations that have transpired. He just hopes that he will get his day in court. "I forgive the officers for what they did to me," he says. "But I think they should pay."

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