Wife files suit in Oakland police tasering death of Marcellus Toney

In the September, 2017, death of Marcellus Toney, there is one thing that is undeniable: He died in police custody after he was hit by a Taser. But exactly why he died and who is liable for his death is still unclear.

“I just hope that some justice comes out of this, that someone is held accountable, even if it’s Marcellus,” said Lamesha Smith, Toney’s wife.

Smith has filed a civil lawsuit alleging that the Oakland Police Department (OPD) is responsible for his death because officers “used excessive and unnecessary force” against Toney, and so is the City of Oakland, alleging it has failed to properly train and discipline the officers involved in Toney’s death.

The Oakland City Attorney’s Office responded to the suit on November 5, denying Smith’s claims and arguing that officers were authorized to use force against a person resisting arrest. Representatives from the office declined to be interviewed for this story.

Smith’s lawyers and an expert in electronic weapons say the outlines of the case raise questions about how police acted when using a Taser and their justification in doing so.

According to a report released by the Coroner’s Bureau, which is part of the Alameda County Sheriff’s Department, on September 28, 2017, Toney was driving while intoxicated on meth and alcohol in the Fruitvale neighborhood of East Oakland when he crashed into another car at around 2 p.m. in the afternoon. Two other people were injured, but the OPD has not made public details about their identities or the severity of their injuries.

When police arrived at the scene, they found Toney in the middle of 42^nd Street and Foothill Boulevard in a state of crisis, according to Smith, who said she saw police-edited footage of the events leading up to her husband’s death. That footage comes from a street camera on the corner of 42^nd and Foothill, and an AC Transit bus camera, according to what police officers told Smith at the time she viewed the footage with her lawyer.

Oakland police officials have declined to release the footage, stating that the case is still under investigation. They also repeatedly declined to be interviewed for this story.

 “’He’s standing in the middle [of the intersection] saying ‘I’m sorry, I’ll never use drugs again, I didn’t mean it, I’m so sorry,’” said Smith of the video she saw.

Once Oakland police officers arrived, according to Smith’s account of the video, a female officer walked over to Toney, who was still standing in front of a parked AC Transit bus filled with people and asked him to come with her.

“I then saw Marcellus give her his arm and say, ‘Please don’t take me to jail. I’m high and been drinking. I’m sorry,’” Smith said. She said that the officer then walked around the back of the bus with Toney. The officer and Toney then disappeared behind the bus and out of view from the camera, according to Smith.

Smith has no sense of what happened after her husband disappeared with the officer behind the bus. “That’s it. Her body camera was not on,” Smith said Oakland police representatives told her.

According to the coroner’s report, Toney “admitted causing the accident” and told police officers he was “High as fuck.”

“Toney was tased after resisting arrest and ‘Bear hugging’ an officer,” the report continues.

Smith’s suit alleges that he was tased “additional times” prior to the paramedics arriving to the scene, but does not give a specific number. A report from the paramedics, which was given to Smith following Toney’s death, states that he was tased four times in total. The suspect “coded,” a reference to cardiac arrest, in the ambulance, and again at the hospital, according to the coroner’s report. He was pronounced dead at 6:25 p.m., the report states.

Because the police officer’s camera was off and the bus was blocking the street camera’s view, the events leading to the tasing—“resisting arrest” and “bear hugging”—and the actual tasing itself were not recorded, according to what police told Smith.

But Smith believes there is still more footage to be viewed because she states that every AC Transit bus is equipped with a 360-degree camera. The bus should have been able to pick everything up, she said.

She also accuses the police of purposefully omitting footage before presenting the edited video to her. “They put the video together the way they wanted to look,” she said. “But where is the rest? Let me see the bear hug and the wrestling, I want to see that. When I see that, I’m at peace.”

Oakland police representatives declined to comment on the footage and AC Transit declined to confirm whether they have 360-degree cameras on buses.

The coroner’s office ruled “Excited Delirium Syndrome” and “Acute Alcohol and Meth Intoxication” as the two main causes of Toney’s death.

“Excited Delirium Syndrome” has accounted for 288, or 28 percent, of the 1,042 police Taser inflicted deaths since 2000, according to a Reuters investigation. The U.S. National Institutes of Health describes the syndrome as “delirium with agitation (fear, panic, shouting, violence and hyperactivity), sudden cessation of struggle, respiratory arrest and death.”

The syndrome is highly controversial and it is not a recognized medical or psychiatric diagnosis, according to the American Psychiatric Association and the World Health Organization. It is a term that turns up most commonly in deaths that occur when a person is in police custody.

Smith offers a shorter definition: “That’s the term they use when they tase people and they are under the influence. They exacerbated their own heart and died. … My thought is, that’s bullshit.”

Michael Leonesio, the head of the Electronics Weapons Program at the OPD from 2006 to 2012, wrote the department’s policy on Excited Delirium. “People treat it as a disease, but it’s not that,” he said. “It’s a set of sign or symptoms that point to a life-threatening condition. What that life-threatening condition is, I don’t know.”

According to Leonesio, symptoms include “superhuman strength, someone who can throw five or six officers off them,” core temperatures that read as high as “106 or 108 degrees,” and someone “whose speech is so pressured it sounds like there’s someone inside of them trying to get out.”

“Excited Delirium,” he said “is very, very specific. You can’t just say a guy wasn’t cooperating with police and therefore it’s Excited Delirium. There have to be facts to back that up.”

Nothing in Toney’s case, he said, points to the typical signs or symptoms of Excited Delirium, in his opinion. “Putting someone in a bear hug is not superhuman strength,” he said. “The fact that he plead his guilt is not a typical symptom of Excited Delirium.”

Smith agrees, and given the absence of footage of the bear hug or tasing, she has filed a civil lawsuit alleging that the individual officers are responsible for Toney’s death for using “excessive force.”

“In our lawsuit, we’ve claimed that the officers as individuals are civilly liable for their individual actions, but that also the city’s failure to properly train and/or properly discipline an individual for abandoning their training makes the city liable as well as the individual officers,” said EmilyRose John, an associate with the Oakland civil rights firm Siegel, Yee and Brunner, who is representing Smith.

John said that “the use of Tasers is very dangerous” and “police officers seem very quick to use them in situations where the conduct of the decedent does not deserve it.”

In their answer to Smith’s complaint, the City Attorney’s Office denied all of Smith’s claims, including allegations of excessive force, negligence and wrongful death. While their response stipulates that Toney was tased once—rather than multiple times, as Smith’s suit claims—use of force “was authorized and privileged to effect an arrest” under the California penal code, they argue. The office further asserts that the defendants are “immune from liability” because Toney “was resisting and/or escaping arrest.”

Nationally, the use of tasers by police officers has become increasingly controversial. In California alone, there have been 222 deaths from Tasers in police custody since 2000, according to Reuters.

In the department’s “Use of Force” handbook, OPD regulations state that Tasers “greatly reduce the need for other types of physical force by members, which could otherwise result in serious injuries or death to the member and/or offender.” The handbook advises their use as a “force option that may be used to control dangerous and violent subjects.”

Leonesio said that during his time running the Electronic Weapons Program, police used Tasers in thousands of instances without any issues occurring. “It’s attributable to all the training we did,” he said. “I personally reviewed every single Taser case. I would speak with the officers and review their reports directly. We were very successful because of the attention we put on it. You don’t find that in many other departments now, including Oakland’s.”

Axon, the company that makes the department’s electronic weapons, released an official statement that “Axon does not have the authority to mandate policy regarding the use of its products. Law enforcement agencies are force experts and responsible for the creation and implementation of their own use of force policies and standards.”

When asked about the manufacturer, Leonesio says that they’ve “done a good job at removing themselves from liability, because they have pages of warnings that nobody ever reads.” These warnings include only “using force on those actively resisting or higher,” to avoid using force on a “person known or perceived to be emotionally disturbed or mentally ill” and avoiding “repeated or continuous” uses of a Taser.

John believes the use of a Taser should be taken with precaution. “An officer should be trained extensively on when it is appropriate to use force and, more importantly, how important it is to de-escalate a situation without the use of force to the extent that you can safely do so,” she said.

Smith agrees, but states that at bare minimum, she wants to know what happened to her husband. “I want to know if Marcellus was fighting the police and beating them up, you know, or something like that, and they had to Taser him. That’s not against the law. But if he was not, and he was just screaming and crying, that’s against the law. He didn’t deserve to die like that,” she said.

Now that the Oakland City Attorney’s Office has responded to the lawsuit, the federal rules of civil procedure require that the two parties meet for an “initial disclosure” meeting, which is set to happen within the next two weeks.

“The lawyers will discuss what they have to provide to the other side and ask for anything they think might exist that should be turned over as a part of the initial disclosure process,” John said of the meeting.

She hopes that the video will be included in this swap, but sees it as unlikely, as she believes the police will most likely label it confidential material.