ROANOKE TIMES
Copyright (c) 1995, Roanoke Times
DATE: Tuesday, December 5, 1995 TAG: 9512050048
SECTION: VIRGINIA PAGE: B-1 EDITION: METRO
SOURCE: JAN VERTEFEUILLE STAFF WRITER
A federal judge hinted Monday that he would not throw out a lawsuit filed by the widow of a Roanoke man who died after being put in a choke hold by police.
U.S. District Judge Jackson Kiser told attorneys for the city and for Eric Scott Lee's widow that he will rule later on the city's motion to dismiss the suit. But after hearing oral arguments, he said he believes there are enough grounds to allow the lawsuit against the city and three police officers to go forward.
Lee died in May 1993 when police put him in a choke hold after, police said, he tried to choke an officer. They then handcuffed Lee and said they didn't realize he was unconscious until they moved him several minutes later.
Commonwealth's Attorney Donald Caldwell and the Police Department cleared the three officers of any wrongdoing. Caldwell called the death "a freak accident."
But the attorney for widow Terri Lee said in court Monday that he believes it was intentional.
"We have in essence alleged a homicide, an intentional killing if you will, without justification or excuse," Frank Rogers III said.
But Assistant City Attorney Gary Tegenkamp called it "an unfortunate situation. I don't think this was a case of police abuse."
As the case moves into the evidence-gathering stage, more information will come out that shows "there's more than one side," Tegenkamp said.
In the city's motion to dismiss the lawsuit, it argued that Lee was engaged in an illegal activity - resisting arrest - and therefore his widow should not be able to recover for any injuries he suffered. Virginia common law holds that a person should not be allowed to gain from his own wrongful act.
On the night of the death, Officers S.F. O'Neill, J.M. Donaldson and R.L. Hague went to the home of a female friend of Lee's because another woman said she had been assaulted by LeeWhen the officers attempted to arrest him, a fight broke out between the officers and Lee.
Lee, 20, was choking O'Neill when Donaldson stepped in, police said. Donaldson used a choke hold to subdue Lee, wrapping his arm around Lee's neck from behind. Such a move slows the heart rate and cuts off oxygen to the lungs and blood to the brain - a combination that usually causes only loss of consciousness, but can kill if applied for 10 seconds .
After moving the handcuffed, unconscious Lee from a dimly lit room, police noticed he had turned blue. CPR was attempted about six minutes after Lee lost consciousness, Caldwell estimated.
The city's attorney maintained that to sue a city successfully, the plaintiff must prove the death resulted from a city policy or custom. Tegenkamp argued that Terri Lee has failed to show that, although her attorney said she had shown "an egregious set of circumstances that supports the claim of damages."
Rogers said police made the arrest without probable cause, used a choke hold, then failed to administer first aid. Because Lee was under arrest, police were responsible for him after he was handcuffed, Rogers said.
The federal suit also claims the police actions on the night Lee died "reflect a pattern of documented widespread behavior which the City of Roanoke, by and through its agents and employees, ignored repeatedly."
A three-day trial is set for June. Terri Lee is seeking $750,000. A nearly identical suit filed in Roanoke City Circuit Court will be put on hold pending the outcome of the federal suit.
LENGTH: Medium: 67 lines KEYWORDS: FATALITYby CNB