Appeals judge: 'Bad police work' in custody death

Federal appeals judges tore into Milwaukee police handling of a prisoner who died in custody during an epileptic seizure in 2010, during oral argument on an appeal of his family's civil rights case last week.

"I must say, I don't think I've ever seen such bad police work," said Judge Richard Posner, part of a three-judge panel at the 7th Circuit U.S. Court of Appeals hearing the case in Chicago.

It was a rough morning Thursday for the city's attorney, Susan Lappen, who was interrupted repeatedly by Posner and Judge Ann Williams during a session that lasted more than an hour, about double the time normally allotted for oral argument.

The estate of James Franklin Perry, 41, sued city, county and hospital officials in 2012. In May, U.S District Judge Rudolph Randa dismissed all the claims against city and county officials and sanctioned the plaintiff lawyers, saying they pressed their case even after it became clear the county had no liability. The family had already dropped hospital staff from the suit.

The estate appealed.

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Soon after Lappen began her argument for the city, describing how police get training on monitoring prisoners, Posner remarked, "Well they sure screwed up here," and then said, "That's ridiculous," when Lappen said there was no emergency medical situation.

Perry had been arrested at 2:30 a.m. He told police he hadn't had his nightly dose of anti-seizure medication. About 12 hours later, he was taken to Aurora Sinai Hospital after he fell from a bench and hit his head during a seizure. He was given some anti-seizure medication and discharged back to police at 6:45 p.m.

Lappen told the court that officers had to wheel Perry from the hospital, but the nurses there assured them lethargy was normal after the drugs. She said everything police were witnessing was consistent with how Perry had left the hospital.

"Why on earth wasn't he returned to the hospital?" Posner asked.

Lappen said because no officer recognized a medical emergency.

"Then they're really beyond stupid because you said they're supposed to be trained to observe medical problems," Posner replied.

Williams repeatedly commented that it seemed that once Perry was back at the city lockup, he hardly seemed lethargic, but was instead defecating and urinating on himself, drooling and saying he couldn't breathe. Officers put a spit hood on him, and one told Perry if he was going to act like an animal, he'd be treated like one.

Lappen said the officer meant that as a technique to shock Perry out of behavior if he was faking and that officer was later disciplined for that.

Williams and Senior Judge Daniel Manion also had concerns about how county officials at the jail reacted when Perry was finally transferred there, in shackles, about 8 p.m. Everything that happened with Perry over the previous hours wasn't conveyed verbally to the jail staff, it was only on paperwork.

Manion suggested that if the police had called ahead with the particulars, jail nurses might have had an even quicker response when minutes can matter.

Charles Bohl, attorney for the county defendants, argued that they acted professionally, and quickly, noting that only 13 minutes passed from Perry's arrival at the jail and when an ambulance got there at 8:55, after a nurse concluded Perry was too sick to be booked into the jail. He died in the pre-booking area 20 minutes later.

"It cannot be said anyone was deliberately indifferent to Mr. Perry's rights," Bohl argued. Williams said a jury could take a different view of whether the nurses acted reasonably.

Bohl also argued that, as Randa found, Perry was never in county custody, just the city's, despite being at the county facility, because he was never formally booked. The judges seemed skeptical, with Posner calling the offered distinction "an absurd technicality."

In his brief rebuttal, plaintiffs' attorney Robert Barnes urged the court to reinstate the case. "This was a death that was avoidable with simply competent care," he said.

If the 7th Circuit reverses Randa, the case would return to a different judge because Randa died in September.