- The State of Maryland (employers of the deputies) – violation of the ADA – failure to train and failure to accommodate
- Hill Management Services (employers of deputies as private security officers) – negligence, gross negligence, and battery
- Deputies Richard Rochford, Scott Jewel, James Harris – excessive force, negligence, gross negligence, and battery
- Regal cinemas – negligence and gross negligence
- Wrongful death claims against all
Motion to dismiss: Answered by Judge William M Nickerson on 10/16/2014.
- All charges against Regal Cinemas dismissed.
- Negligence charge against deputies dismissed based on qualified immunity.
- Wrongful death against the State of Maryland dismissed based on Eleventh Amendment immunity for tort action.
The court denied the motion to dismiss charges of the use of excessive force brought by deputies finding that “the allegations in the Amended Complaint supported the conclusion that the Deputies’ conduct could be found to have constituted an unreasonable use of force.” The court split the decision about whether the deputies were entitled to “qualified immunity” (shields public officials, including law enforcement officers, from damages for civil liability so long as they did not violate an individual’s “clearly established” statutory or constitutional rights). Based on this, the negligence charge was dismissed. The other charges of gross negligence and battery remained. The court found that the allegations supported the conclusion that the deputies acted in “reckless disregard of the consequences of their actions” and the “alleged use of excessive force overcame the privilege to use force in effectuating an arrest.”
“Were it not for the intervention of the Deputies, there is no reason to believe he would not have remained sitting quietly in his seat.”
“The Court notes that, before entering the theater and confronting Mr. Saylor, there were a number of other alternatives available to the Deputies instead of pursuing a course they were told would lead to a potentially dangerous interaction.”
“The result of this sequence of events, however, was that a man died over the cost of a movie ticket.”
As to the ADA failure to train claim against the State, “the Court concluded that, from the allegations in the First Amended Complaint, it did not appear that the Deputies were trained to, nor did they, make any modifications in their conduct or response to accommodate Mr. Saylor’s developmental disabilities.” “The Court also found that the State, as the statutory employer of the Deputies, would be vicariously liable for any ADA violation made by the Deputies.”
Motion for summary judgement: Signed by Judge William M Nickerson on 9/9/2016
- The State of Maryland – denied in part, granted in part
- Hill Management Services – denied in part, granted in part
- Deputies Rochford, Scott Jewel, James Harris – denied all
The Saylors filed a Motion to unseal a page of DFC Harris’s deposition and requested leave to file a surreply to charges against Ethan’s aide. Both were granted.
Facts in evidence
The court spelled out the facts in evidence after the extended period of discovery.
A few highlights:
Each deputy, as well as the theater manager, admitted that they knew Ethan had Down syndrome.
Ethan was a regular patron at Regal Cinema and had a “regular place” that he liked to sit.
Prior to initiating contact with Ethan, the manager and Mr. Rochford were informed that Ethan’s mother was on her way to handle the situation, either by purchasing a second ticket or convincing Ethan to leave. They were also told what type of reaction to expect (“he will curse at you” and “may get angry”) if they decided to confront Ethan on their own. Ethan responded as expected, with cursing and agitation. Ethan also told Mr. Rochford that he “worked for the CIA,” and he was “done talking” to him.
Sgt. Rochford claimed that he spoke with Ethan for 10 minutes, other witnesses claimed that the conversation lasted for as little as 2-3 minutes before the arrest began.
“Mr. Saylor continued to struggle, cursed, yelled that they were hurting him, and called out for his mother.”
Law Enforcement Training:
The State of Maryland does not create or conduct training. It is handled by the Maryland Police and Correctional Training Commission (MPCTC).
MPCTC publishes a list of over 500 objectives which local and county organizations use to conduct the trainings.
In 2011 or 2012 “disabilities in general” was added to that list.
In 2014, after the Ethan Saylor Alliance was created, training standards regarding interactions with individuals with intellectual and developmental disabilities were added.
Veteran officers are required to complete at least 18 hours of in-service training per year with no specific content requirements other than sexual assault every three years.
The Frederick County Sherriff’s Office (FCSO) uses a General Orders manual to conduct their own in-service training. This manual provides guidelines for interactions with person with mental illness- defined as “[a]ny of various conditions characterized by impairment of an individual[’]s normal cognitive, emotional, or behavioral functioning, and caused by social, psychological, biochemical, genetic, or other factors, such as infection or head trauma.” These guidelines state:
“Remain calm and avoid overreacting;” “Understand that a rational discussion may not take place;” and “Gather information from family or bystanders.”
The orders specifically caution deputies to avoid: “Forcing discussion;” “Touching the person (unless essential to safety);” and “Crowding the person or moving into his or her zone of comfort.”
The General Order then advises that “[o]nce sufficient information has been collected about the nature of the situation, and the situation has been stabilized, there are a range of options deputies should consider when selecting an appropriate disposition.” Those options include: “Outright release,” “Release to care of family, care giver or mental health provider,” or “Arrest, if a crime has been committed.” As to that last option, deputies are cautioned to “remember that having mental illness is not a crime. No individual should be arrested for behavioral manifestations of mental illness that are not criminal in nature.”
Prior to the incident with Ethan, all three deputies had received some type of in-service training on disabilities, use of force, or de-escalation techniques but none recalled getting any specific information about dealing with individuals with “mental illness.”
Deputy or Security Guard?
In 2004 Hill Management and the FCSO entered into an agreement to allow off -duty deputies to work as security guards. The agreement provided that deputies are “responsible to their positions 24 hours daily” and that these responsibilities take priority in all instances. If the deputies witness an “unlawful act” they are expected to act as a sworn deputy. It also says that deputies are allowed to use their service weapons while working this secondary employment, but they cannot wear their official FCSO uniforms. In accordance with this agreement, and as reflected in the deputies’ time sheets for the day of the incident, the deputies clocked out of their Hill Management jobs “as soon as the arrest of Mr. Saylor commenced.” Therefore, “when Sergeant Rochford touched Mr. Saylor’s arm, however gently,” was used to determine when the men transitioned from Hill Management employees to FCSO employees.
The legal standard used to determine whether excessive force was used comes from the Supreme Court and considers the following factors:
(1) “the severity of the [suspected] crime at issue,”
(2) “whether the suspect poses an immediate threat to the safety of the officers or others,” and
(3) “whether he is actively resisting arrest or attempting to evade arrest by flight.”
 The court acknowledged that “Mr. Saylor was not committing a serious crime.” The charges that could be served against Ethan were minor misdemeanors – trespassing and theft of services. The court stated that even those charges were being committed “more technically than actually” if it can be proven that the deputies knew that Ethan’s mother was on her way and had agreed to handle the situation.
 In their claim, the deputies argue that Ethan committed assault by striking Sgt. Rochford after Sgt. Rochford touched him. However, the other two deputies testified during their deposition that this assault did not occur. The theater manager claimed that Ethan “stiff-armed” Sgt. Rochford hitting him in the chest. The court determined that it was “questionable” whether Ethan intentionally struck Sgt. Rochford or “whether he simply made an involuntary reaction to his being touched.” They also stated that if he did strike Sgt. Rochford, it was done after the decision to arrest him was made.
Rochford: ““[a]t some point, I don’t remember him hitting me, but at some point in time he, he struck me in the chest.””
“Mr. Saylor was sitting quietly in his seat and there is absolutely nothing in the record to support the conclusion that, if left alone, he would not have remained there until his mother arrived.”
The deputies claim that because Ethan’s aide told them that Ethan would become “violent” they had reason to use force. The court decided that there are “material disputes of fact” regarding what Ethan’s aide said to the deputies. To justify their use of force, the deputies look at events as the situation “escalated in seriousness.” The court acknowledged that “the situation only escalated because the Deputies proceeded to do precisely what they were told would lead to that escalation.”
 The final point, whether Ethan was trying to resist or evade arrest by flight, lead the court to question Ethan’s understanding of the events. While acknowledging the fact that Ethan was resisting being removed from the theater, the question remained whether “a developmentally disabled individual who had just declared that he “worked for the CIA” understood that he was being arrested. His clear goal was to remain in the theater and it could be readily inferred, from information possessed by the Deputies, that his resistance was resistance to being touched, not resistance to arrest.”
The court also looked at whether the extent of injury caused by the use of force was reasonable.
“As this Court previously noted, while the extent of Mr. Saylor’s injury was not foreseeable, “the possibility of significant injury would certainly have been evident when the decision was made to drag an obese individual with a mental disability out of his chair and down a ramp, particularly when the Deputies were told that, because of his disability, Mr. Saylor was likely to become upset and angry.””
“…the Court concludes that the force used by the Deputies in making the arrest was not objectively reasonable in light of the facts and circumstances confronting them.”
The deputies used a recent Supreme Court ruling to argue that the court should overturn the original decision regarding qualified immunity. The request was denied.
The court upheld the original denial of the motion to dismiss the gross negligence, battery, and wrongful death charges:
“The evidence, viewed in the light most favorable to Plaintiffs, could support the conclusion that the Deputies acted with a “thoughtless disregard of the consequences.” Despite the lack of any exigent circumstances compelling them to act, they proceeded to do exactly those things that they were told would escalate the situation.”
The deputies claim that because of “qualified statutory immunity, contributory negligence, and assumption of risk” they should not be charged with wrongful death. The qualified immunity issue had been dealt with earlier.
“As the Court has concluded that the evidence could support a finding that the Deputies acted with gross negligence, they are not entitled to judgment on the issue of immunity at this stage of the litigation.”
The deputies blame Ethan:
“Noting that, under Maryland law, a child of five years of age or over can be guilty of contributory negligence, and positing that “Mr. Saylor was in many ways more responsible for himself than a 5-year old,” the Deputies argue that by “voluntarily def[ying] his caretaker and the Deputies” and “voluntarily choos[ing] to resist the Deputies when they tried to escort him out,” Mr. Saylor was contributorily negligent in causing his own death.”
The deputies blame Ethan’s parents:
“the Deputies argue that Plaintiffs contributed to their son’s death and/or assumed the risk of his death by sending him to a violent “R” rated movie with an inexperienced caregiver and no extra money and then failing to give that caregiver appropriate instructions to deal with the evolving situation.”
The deputies blame the caregiver:
In their Reply, the Deputies attempt to foist responsibility for Mr. Saylor’s death on Ms. Crosby, asserting that she made a series of “poor choices” with “disastrous consequences.”
These claims were denied, and the court found that the attack on the caregiver was not supported by the record.
The civil suit makes two charges of the violation of the Americans With Disabilities Act (ADA). The first is based on a failure to train law enforcement. The second claims that the officers violated Ethan’s right to accommodations when they ignored requests from his aide to allow him to remain seated until his mother arrived.
The court granted a summary judgement of the first count finding that there was insufficient evidence that such training was necessary and ignored.
The second claim was upheld. During the motion to dismiss phase the court found that the accommodations requested by Ethan’s aide were reasonable. During the motion for summary judgement phase, the court read testimony from expert witness, Andrew Scott.
“Mr.Scott notes that the International Association of Chiefs of Police (“IACP”) National Law Enforcement Policy Center has a separate Model Policy specifically addressing “Encounters with the Developmentally Disabled” that instructs:
“Taking custody of a developmentally disabled person should be avoided whenever possible as it will invariably initiate a severe anxiety response and escalate the situation. Therefore, in minor offense situations, officer shall explain the circumstances to the complainant and request that alternative means be taken to remedy the situation. This normally will involve the release of the person to an authorized caregiver.”
The court found that this testimony was similar to the FCSO’s own General Order and proceeded to investigate the deputies’ claim that the accommodation was unreasonable based on the disputed fact that Ethan’s aide told Rochford he would become violent.
“As noted above, however, there is a factual dispute if Ms. Crosby ever said anything about Mr. Saylor becoming violent. In an attempt to obscure the nature of this dispute, the State materially misquotes Ms. Crosby’s testimony regarding what she told Sgt. Rochford.”
Ethan’s aide testified that she told Rochford that if touched Ethan would “curse at you,” and “may get angry.” The court described the problem:
“Hopefully, the Deputies understand that one can be angry without being violent. If not, their failure to grasp that distinction might explain the course of events.”
The original suit charged Hill Management with negligence, gross negligence, and battery as employers of the off-duty deputies. The court originally focused on the fact that once the deputies started to arrest Ethan, they were no longer considered employees of Hill Management. In finding that Hill Management could no longer control the deputies once they assumed their responsibilities as law enforcement officers, the court focused on Sgt. Rochford’s actions before he made the decision to arrest Ethan.
“…a jury could find that it was negligent if not grossly negligent for Sgt. Rochford to enter the theater and confront a developmentally disabled individual after having been told that doing so would create an adverse reaction, particularly when there was no exigent need for any immediate intervention.”
“Sgt. Rochford could certainly foresee what his own next steps might be. As an experienced law enforcement officer, Sgt. Rochford could also foresee the possibility of injuries that could arise while making an arrest.”
Therefore, the charge of battery was dismissed but the negligence and gross negligence charges remain.
“For the above stated reasons the Deputies’ motion for summary judgment will be denied in its entirety. The motion for summary judgment filed by the State will be granted as to the ADA failure to train claim (Count X), but denied as to the ADA reasonable accommodation claim (Count XI). Hill Management’s motion for summary judgment will be granted as to the battery claim (Count VIII), but denied as to the negligence and gross negligence claims (Counts III and VI).”
The deputies filed an appeal challenging the court’s decision on qualified immunity. Their appeal was denied by the Fourth Circuit Court of Appeals on September 29, 2017
Now the family waits to see whether the case will be settled out of court or will proceed to trial.