Newspaper Page Text
LOCAL
.'Al- 6
CHAMPION!
May 5 - 11,2016 » Page 13A
Georgia Supreme Court throws out Taser death lawsuit appeal
The Georgia Supreme
Court announced April 26 that
it has thrown out the appeal
in a lawsuit against DeKalb
County Police officers after
a man died when they tased
him, according to a news
release.
The Georgia Court
of Appeals should have
dismissed the four officers’
appeal on procedural
grounds, Chief Justice Hugh
Thompson writes for the
unanimous court, according
to the release.
As a result of the opinion,
the high court is remanding
the case to the lower
appellate court, and the case
ultimately will go back to the
DeKalb County State Court
where it will likely proceed to
a trial by jury.
According to the facts
of the case, on May 2010,
DeKalb County Fire Rescue
responded to a 911 call made
by employees of the Budgetel
Inn on Chamblee-Tucker
Road after they found a man
convulsing in one of the
rooms. The man, Audrecas
Davis, a 6-foot, 6-inch tall,
29-year-old man weighing
445 pounds, was on the floor
of a room with foam coming
out of his mouth and feces
covering the lower half of his
body, according to the news
release.
His parents, Jimmy and
Annie Davis, said their son
suffered from hypertension
and was borderline diabetic.
Davis’s parents claimed
that “the evidence shows
their son was having a
medical emergency that
caused him to be in a
zombie-like state, and clearly
he did not understand what
was going on,” the release
stated. According to county
attorneys, however, when a
medic administered smelling
salts, Davis became agitated
and allegedly began to swing
his arms.
“Due to Davis’s size and
weight, the medic requested
additional fire rescue units
for help to move him into
the ambulance,” the news
release stated.
When the fire rescue
personnel tried to strap Davis
to the stretcher, he tore off
the straps, the news release
stated. Nine DeKalb County
Police officers responded
to the scene, including
Frank Kliesrath, Bernard
Gales, Keith Cintron and
Christopher Delon.
When Davis became
aggressive, two of the officers
were directed to use their
Tasers on Davis, according to
the news release.
The officers continued
trying to restrain Davis to get
him into the ambulance, the
news release stated. Due
to his size, however, they
were unable to handcuff
him, and they claimed Davis
continued to swing at them.
Another officer deployed his
Taser in the “dart mode,” but
Davis continued to resist
and wrestle his arms away
from officers. Only after the
second injection of Valium
were the officers able to
restrain his arms using
three pairs of handcuffs, but
then Davis began kicking,
according to the County,
hitting one of the officers in
the stomach. The officers
continued to tase Davis, a
total of at least six times. After
they finally secured Davis
face down on the stretcher,
the medic noticed that his
breathing was shallow.
Davis was transported to
DeKalb Medical Center and
pronounced dead shortly
after arrival.
Davis’s parents filed
a wrongful death lawsuit
in DeKalb County State
Court against a number of
parties, including Officers
Kliesrath, Gales, Cintron
and Delon. They also filed
a claim that the officers
violated Davis’s constitutional
rights and amounted to
unreasonable and excessive
force, according to the news
release.
The officers then filed a
motion asking the court to
grant “summary judgment”
in their favor, arguing they
were protected by “qualified
immunity” and “official
immunity” from being sued,
the news release stated.
In March 2014, the
trial court denied summary
judgment to the four officers
who tased or supervised the
tasing of Davis, ruling they
were not entitled to immunity
and the lawsuit against them
should proceed to a jury trial.
The judge concluded that a
jury could possibly conclude
that the use of a Taser in
this case was not justified.
The judge also concluded
there was a question of fact
a jury should determine as to
whether Davis’s constitutional
rights were violated by the
use of unreasonable force.
On appeal, the Georgia
Court of Appeals upheld the
trial court’s ruling in a one-
page opinion. The officers
then appealed the Court of
Appeals ruling to the state
Supreme Court, hoping to
stop the case from going to
jury trial.
Initially, the high court
agreed to review the case
to consider the merits of the
officers’ immunity claims.
“However, because we now
determine that the Court
of Appeals did not have
jurisdiction of the appeal, we
vacate the judgment of the
Court of Appeals and remand
for proceedings consistent
with this opinion,” today’s
opinion says.
At issue in this case
is the type of appeal the
officers filed. Rather than
file an application to appeal,
petitioning the Court of
Appeals to allow them to
appeal the pre-trial ruling,
the officers filed a notice of
appeal, asserting they had
the authority to file a “direct”
or automatic appeal that
didn’t require the court’s
permission.
However, the state
Supreme Court recently
reiterated in Rivera v.
Washington, an opinion
it issued March 25, 2016,
that a court order denying
a motion based on an
immunity defense is not
directly appealable and must
proceed under “interlocutory”
- or pre-trial - procedures,
which require the filing of an
application.
“Thus, here, the trial
court’s order denying [the
officers’] motion for summary
judgment was not directly
appealable,” the opinion
states. “Accordingly, instead
of affirming the judgment
of the trial court, the Court
of Appeals should have
dismissed the direct appeal.”
DeKalb County Department of Watershed Management Public Advisory
Interstate 85 & Oakcliff Industrial Court Sanitary Sewer Rehabilitation
May 6, 2016 June 6, 2016
Advisory Issue Date Advisory Close Date
This advisory is issued to inform the public of a receipt of an application for a variance submitted
pursuant to a State Environmental Law. The Public is invited to comment during a 30-day period on the
proposed activity. Since the Georgia Environmental Protection Division (EPD) has no authority to zone
property or determine land use, only those comments addressing environmental issues related to air,
water and land protection will be considered in the application review process. Written comments should
be submitted to: Program Manager, Non-Point Source Program, Erosion and Sedimentation Control, 4220
International Parkway, Suite 101, Atlanta, Georgia 30354.
Type of Permit Application: Variance to encroach within the 25-foot Sate Waters Buffer.
Applicable Law: Georgia Erosion and Sedimentation Act O.C.G.A. 12-7-1 ET seq.
Applicable Rules: Erosion and Sedimentation Control Chapter 391-3-7.
Basis under which variance shall be considered {391-3-7.05(2) (A-K)}: A
Project Description & Reason for Initiating:
1-85 and Oakcliff Industrial Ct. Sanitary Sewer Rehabilitation Project is a rehabilitation project of an
existing sanitary sewer located between the North Fork of Peachtree Creek and just northwest of Oakcliff
Industrial Ct. in the City of Doraville, GA. Specifically, the site is located in land lot 314 & 318 of the 18th
district in DeKalb County, GA. The proposed construction will include the rehabilitation of approximately
2,275 linear feet of 10", 12", and 15" sewer pipe. The project is needed due to the numerous sewer spills
along the existing sewer outfall.
Project Location:
This project is located in land lot 314 and 318 of the 18 th district of DeKalb County. Beginning at terminus
of Oak Cliff Industrial Court and running south to Interstate 85 and continuing south to the confluence of
the North Fork of Peachtree Creek for a total distance of approximately one mile.
The Public can review site plans at 1580 Roadhaven Drive Stone Mountain, Georgia 30083. Phone: 770-
724-1450.