Legal Lesson of the Month: Suit Against Medic Who Beat Homeless Man Can Proceed

EMS can be full of interesting and tricky legal scenarios. While you can’t have an attorney ride with you, it behooves providers to have at least some familiarity with the principles, precedents, and major issues of EMS law. To that end EMS World is pleased to offer the EMS Legal Lesson of the Month.

These cases are presented by prominent attorneys in the EMS field. This month’s comes from Larry Bennett, program chair for fire science and emergency management at the University of Cincinnati. Bennett’s department publishes a monthly Fire & EMS and Safety Law newsletter; subscribe to that by e-mailing Lawrence.bennett@uc.edu or read the latest edition here.

Case: Kyle Vess v. City of Dallas and Brad Alan Cox

Decided: June 2022

Verdict: Senior District Court Judge Sidney A. Fitzwater, US District Court for the Northern District of Texas, denied the city’s motion to dismiss and declined to dismiss all claims against paramedic Cox.

Facts: In August 2019 Cox and other Dallas Fire Department personnel were called to extinguish a grass fire. When Cox and other DFD personnel arrived, Vess, who is mentally ill, was walking near the fire. Due to Vess’ proximity to the fire, Cox thought Vess was responsible for starting it. Cox and other DFD personnel attempted to detain Vess. Meanwhile, other DFD personnel called the Dallas Police Department for assistance.

Cox confronted Vess in an effort to detain him. Something provoked Vess, however, and he errantly swung at Cox, who swung back at Vess and hit him. According to the second amended complaint (SAC), Cox then beat Vess “senselessly” and subdued him. After subduing Vess Cox continued to beat him, kicking him 6 times while he was on the ground. It was necessary for another firefighter to restrain Cox.

But according to the SAC, Cox was not finished. DPD officers eventually arrived and found Vess lying on the ground on his back, “clearly subdued.” DPD officers, together with Cox and a group of other firefighters, surrounded Vess as he continued to lie on the ground. Cox taunted Vess, telling him to ‘Get up again, get up again.” When Vess lifted his head off the ground, Cox kicked him in the right side of his head with a steel-toed boot. Vess was initially knocked to the ground but then stood up in a “fight or flight” response to confront Cox. Before Vess could confront Cox, however, another officer used a Taser to incapacitate Vess.

Cox’s actions caused Vess to suffer “a fractured orbital socket on his face, a fractured sinus, cracked teeth, and…facial paralysis on the right side of his face.” Vess also suffered an exacerbation of a prior brain injury.

[The plaintiff also alleges the] city attempted to avoid disciplining Cox for his encounter with Vess. DFD did not conduct an internal affairs investigation, and the Dallas Public Integrity Unit (DPIU) cleared Cox of any wrongdoing. Both entities “worked to ensure that no further or deeper investigation was done because both had a practice of concealing internal disciplinary measures from the public.” The office of the Dallas County District Attorney did not pursue an indictment of Cox, later “indicated remorse” for not doing so, and “admitted that a thorough investigation was not undertaken.”

Key quote: “Taking the facts alleged in the SAC as true, the court concludes that Vess has plausibly pleaded that this policy ‘of protection for previously disciplined personnel by refusing to terminate or separate from employment individuals unfit to serve as members of the Dallas Fire Department despite good cause for termination and the risk these individuals pose to the public’ was the moving force behind Cox’s actions (Cox had a history of disciplinary problems). The court also noted that Vess alleges [DPIU] hampered the investigation because it did not turn over exculpatory evidence to Vess’s criminal defense attorney until 2 years after the events in question and not until after this lawsuit was filed. Further, DPIU did not take statements from DFD personnel when it was investigating Vess’ and Cox’s confrontation; it only took statements from police officers who were on the scene.”

Legal lesson: These are serious allegations, and the case will now proceed to pretrial discovery.