Mother who called police on her own son for shoplifting shocked, appalled by use of 'unprovoked violence and use of force'

What happened next that evening in May 2021 is the basis for a lawsuit by the mother alleging that Burlington police used excessive force and discriminated against her unarmed son, who is Black and has behavioral and intellectual disabilities.

After he failed to hand over the last of the stolen e-cigarettes, two officers physically forced him to do so, then Cathy Austrian’s son was handcuffed and pinned to the ground as he screamed and struggled, according to a civil lawsuit filed Tuesday and police body-camera video shared with The Associated Press by the American Civil Liberties Union of Vermont.

The teen eventually was injected with ketamine, a sedative, then taken to a hospital, according to the lawsuit and video.

“The police chose to respond to my son with unprovoked violence and use of force, when they could and should have followed their own procedures and used safe, supportive methods,” Austrian said in a statement provided by the ACLU of Vermont, which is representing her case.

The ordeal underscores the need for sufficient police training in dealing with people with disabilities and mental health challenges, and raises questions about whether police are best suited to respond to such situations, advocates say. A growing number of U.S. communities are responding to nonviolent mental health crises with clinicians and EMTs or paramedics, instead of police.

Burlington police officers had visited the home before and were aware of the teen’s disabilites, the lawsuit says. Austrian fostered the child, who had developmental and intellectual disabilities like his birth mother, since he was 5 months old and adopted him at age 2, according to the lawsuit.

The Associated Press generally doesn’t identify minors who are accused of crimes or who are witnesses to them.

Body-camera video shows two officers talking calmly to the teen, who is sitting on a bed. His mother tells him to cooperate; she goes through drawers and finds most of the remaining e-cigarettes and tries to get the last one from him.

Officers say if he turns the e-cigarettes over, they’ll leave and he won’t be charged. He doesn’t respond. After about 10 minutes, the officers move in to forcibly remove the last of the e-cigarettes from his hand by pulling his arms behind his back and pinning the 230-pound teen against the bed.

Adante Pointer, a civil rights attorney in the San Francisco Bay area, said officers were doing the appropriate thing at first — discussing consequences and trying to establish rapport.

“The turning point in this chain of events is when officers decided to go hands-on,” said Pointer, who watched the video but isn’t connected to the case.

“There wasn’t any urgency here, there wasn’t any emergency where they had to force physical confrontation,” said Pointer, who noted the teen was contained in a room with his mother and wasn’t a violent felon trying to flee.

The lawsuit seeks punitive damages against the city and monetary damages and relief for the teen. It also seeks an order for the city to accommodate people with disabilities in policing interactions, including implementing officer training and modifying policies on ketamine use.

It accuses the officers of treating the teen differently because they perceived him as disproportionately aggressive due to his race. It also alleges that injecting the 14-year-old with ketamine was “race-based disparate treatment” that wouldn’t have happened had he been white.

The use of ketamine has come under scrutiny. In Colorado, two paramedics were convicted late last year for injecting Elijah McClain, a 23-year-old Black man, with an overdose of the sedative after police put him in a neck hold and he later died.

A city spokeswoman said Burlington investigated and found that officers and fire department EMTs acted according to city policy and state law and regulations.

“We expect to vigorously and successfully defend against the allegations,” Samantha Sheehan said in a statement Wednesday.

After the investigation, Mayor Miro Weinberger ordered the Burlington Fire Department to review the use of ketamine, Sheehan said via email. The state has updated protocols to require doctor permission for all sedation of patients with combative behavior, which wasn’t required at the time, although responding paramedics did get a doctor’s permission, she wrote. A directive on dealing with people with diminished capacities is being reviewed and is expected to be rewritten by the Police Commission, according to Sheehan.

When the two officers arrived to speak to the teen, Austrian told them her son was acting erratically and had a rough week. She said he had an MRI of his heart that week, and his medicine for ADHD had been increased the week before. She said he left the house with a hammer and scissors and returned with a bag full of e-cigarettes he admitted he’d stolen from a Cumberland Farms convenience store. He gave her half of them but wouldn’t give up the others, she said.

After officers got the final stolen item, they said in their police reports, the teen tried to kick and punch them. The lawsuit says the teen “reflexively rose from the bed and flailed his arms haphazardly at the officers.”

That response “is typical of individuals with his disability and trauma history who are placed in unnecessary physical restraints and denied space,” the lawsuit says.

The officers handcuffed him and eventually pinned him to the floor on his stomach. The teen thrashed, screamed and swore. Officers told him to stop spitting, and paramedics, who police called, placed a spit hood over his head.

They then injected the teen with ketamine. They said the teen’s distress was “excited delirium,” a term the medical community has rejected, the ACLU said.

He was carried out of the house unconscious on a stretcher and spent the night in the hospital, the lawsuit states.

The teen was referred to the Burlington Community Justice Center, an alternative to criminal court, for two assault charges against the officers, which were later dismissed, and retail theft, which was resolved through the completion of a restorative justice program, according to Hillary Rich, staff attorney for the ACLU of Vermont.

In calling the police, his mother was looking for help in getting him to do the right thing, said Pointer, the civil rights attorney.

“Instead of getting that type of help, her kid was brutalized,” said Pointer. “Her kid was handcuffed, man-handled, a spit bag placed over his head, and administered a very powerful and deadly sedative, and now she’s left to pick up the pieces.”