(CNN) — When Cathy Austrian’s then-14-year-old son came home from a Vermont gas station with stolen vape pens on May 15, 2021, she called the police to teach him a lesson.
Austrian and her son, J.A., who has intellectual disabilities, had worked with the Burlington Police Department to peacefully resolve behavioral issues before.
But on that day, J.A.’s interaction with the town’s police and fire department escalated; he was handcuffed, bruised, injected with ketamine, and hospitalized, according to a lawsuit filed by Austrian late last month.
Austrian, who is represented by the American Civil Liberties Union of Vermont, is suing the City of Burlington for its employees’ “discriminatory and unconstitutional” acts against her son. The lawsuit alleges that the officers, who were White, “subjected J.A. to disproportionate and unnecessary force” and failed to treat the teen, who is Black, “with the dignity, respect and sensitivity they would have afforded to a similarly situated White individual.”
Samantha Sheehan, communications director for the City of Burlington, confirmed to CNN that the city had been provided the complaint and a waiver of service. In an earlier statement, she said the incident had been “through a robust oversight process that included the Police Commission and a review by the Mayor consistent with his 2020 Executive Order, and found that the police officers and first responders from the fire department all acted according to City policy as well as state law and regulations.”
Sheehan also said “all use-of-force incidents involving a person of color” are reported to and reviewed by the mayor, who agreed that BPD and the Burlington Fire Department acted according to City policy.
“We expect to vigorously and successfully defend against the allegations set forth by Ms. Austrian,” Sheehan said.
Austrian adopted J.A. – whose name is abbreviated in the lawsuit because he is a minor – when he was two years old. According to the lawsuit, J.A. demonstrated developmental delays as an infant and educational evaluations later showed he had intellectual delays. His IQ score later qualified him as a person with an intellectual disability.
He also exhibited emotional and behavioral disabilities, the lawsuit states.
On the day he interacted with BPD, “J.A. and his mother had a squabble familiar to many parents and children: a disagreement over screen time,” the complaint states. “J.A. left their home to cool off.”
But when he returned with a bag of vape pens that he told her he had taken from a nearby convenience store, the lawsuit says Austrian explained the “inappropriateness of his actions” and the teen gave her most, but not all, of the pens.
Austrian saw “a learning opportunity to reinforce lessons of accountability for her child,” according to the lawsuit, so she called the Burlington police.
The officers who responded had been to the convenience store where witnesses told them “that J.A. appeared to be 15 or 16 years old and described him as ‘awkward,’” according to the lawsuit.
Once police arrived at Austrian’s home, she immediately informed them of her son’s “special needs,” the lawsuit states, adding that she told them about J.A.’s medical issues, including a recent MRI of his heart and an increased dose of medication to treat ADHD.
She suspected, according to the lawsuit, that the increased dosage could be contributing to his behavior, saying he had been behaving “strangely” in a way that was “somewhat disconnected from reality.”
J.A. sat on his bed and was “largely non-communicative” with police for the first 10 minutes of their encounter, according to the complaint, but gave police all the stolen vapes except for one, which he held in his hand.
Bodycam footage of the incident obtained by NBC in 2021 shows officers asking the teen to turn over the vapes.
“We’d much rather leave with the vapes and return them to Cumberland Farms so you don’t have to deal with a court date or anything,” an officer can be heard telling J.A., who does not respond.
CNN has requested access to the bodycam footage from the department.
Bodycam footage shows officers attempted to wrest the remaining vape pen away from J.A., restraining his arms behind his back. After verifying they’ve obtained “the last one” they let go.
“As a result of J.A.’s disability, J.A. foreseeably exhibited a fear response, seeking to protect himself from the officers and keep the officers away from his body,” the complaint states.
“At that point, the BPD officers could simply have ended the encounter and, if warranted, written a citation for shoplifting to 14-year-old J.A.— an unarmed child who posed no threat to himself or others, and who the BPD officers knew had a disability, was acting strangely, and did not want to be encroached upon or touched,” the complaint states.
Instead, the incident escalated. Officers handcuffed the teen and, according to the complaint, “once restrained, J.A. predictably proceeded to panic — screaming and contorting himself in distress.”
The lawsuit notes that during the incident J.A. “continuously thrashed as he screamed, ‘I’m Black’” and expressed concern that officers would “do to me what you did to George Floyd.”
“J.A.’s experience of racial mistreatment was not imagined: the speed and aggression of the officers’ physical response to J.A. … show that racial stereotypes and implicit bias directly contributed to J.A.’s mistreatment and the City’s refusal to accommodate his needs,” the lawsuit states.
After watching her son’s agitation increase, Austrian asked for medical assistance and EMS be contacted.
“Despite learning from Ms. Austrian upon his arrival that J.A. had ‘developmental delays’ and that being confined would only exacerbate his distress and the manifestations of his disability, a BPD sergeant requested paramedic City employees place an opaque mesh bag over J.A.’s head,” the lawsuit states, referring to a “spit hood,” a restraint device that prevents biting and spitting.
“Ultimately EMS is called and instead of recognizing the child’s disability, which is very reasonable … they diagnosed him with excited delirium, which is an intensely racialized pseudo-diagnosis,” ACLU-Vermont attorney Hillary Rich told CNN.
According to the lawsuit, paramedics received permission from “an off-site doctor” to inject J.A. with ketamine, a sedative, and he ultimately lost consciousness and was taken to the hospital.
Excited delirium has become a subject of debate in recent years after several high-profile cases of Black men dying after they were diagnosed by first responders.
In 2019, Colorado paramedics administered ketamine to 23-year-old Elijah McClain, who was Black, after he was diagnosed with excited delirium. McClain was declared brain dead three days later, CNN previously reported.
The following year, Rochester, New York, police officers pinned down 41-year-old Daniel Prude, who was also Black, placed a spit sock over his head, and held him prone on the ground until he stopped breathing, CNN previously reported. Prude, who had been experiencing a mental health crisis, was declared brain dead and died a week later. The autopsy report cited complications of asphyxia and excited delirium among the factors that contributed to Prude’s death.
“Excited delirium” is a field diagnosis that is not supported by the American Medical Association or the American Psychological Association and a 2022 study by Physicians for Human Rights found the term to be “scientifically meaningless.”
Following the incident involving her son in 2021, Austrian filed a complaint accusing BPD of excessive force. The city’s Police Commission reviewed the case and made recommendations to then-Acting Police Chief Jon Murad, which he did not follow, according to the lawsuit. This disagreement was reported to the mayor, but due to the Commission’s policy, they could not disclose the exact details of the report to Austrian, Rich told CNN.
The police department’s use of force policy, which was updated in 2023 and signed by Murad, emphasizes the use of de-escalation tactics, and condemns unnecessary force. Its policy for interacting with people with “diminished capacities,” or unusual behavior that could be the result of intoxication or mental illness, also encourages officers to keep in mind factors like intellectual disabilities that may lead a person to refuse to comply.
Sheehan said since the incident with J.A. occurred, the term “excited delirium” has been eliminated from state protocol, as requested by Burlington Fire Department. The department also successfully requested that the state require medical direction before sedating adults with “combative behavior.” Sheehan noted that in J.A.’s case, they sought the order of a physician even though it was not required at the time of the incident.
Sheehan said the district medical advisor conducted mandatory training with all paramedics on the use of ketamine in November 2021, and BPD reviewed their policy regarding disabled persons, which is expected to be rewritten by the Police Commission.
But for Austrian these changes did not rectify the trauma her son had experienced. Although J.A. has physically recovered, Rich said the harm he suffered during the experience “continues to have a profound impact on him.”
Rich said Austrian is suing because she wants accountability and transparency in the police department and she wants the city to recognize that J.A. was treated unfairly.
“She wants to be sure that any family – no matter their child’s disability status, no matter their child’s race, any family should be able to not fear an encounter with police is going to end in violence.”
CNN’s Rikki Klaus contributed to this report.
The-CNN-Wire
