Dad sues Eugene police in son’s death – but not for excessive force

By Karen McCowan, The Register-Guard, Dec. 1, 2012

Eugene policeA Eugene man has filed a $3 million civil rights lawsuit against the Eugene Police Department and three officers for allegedly entering his home without permission and taking his mentally ill adult son to a local hospital, where he died of cardiac arrest after being “prescribed an overdose of medication.”

The suit accuses Officer Rachel Schacht and Sgts. Bill Solesbee and Carl Stubbs of assault and battery for scuffling with and physically removing Mark David Walden from the family’s north Eugene home. But it makes no allegation that any of the officers inflicted physical injuries leading to the 42-year-old man’s December 2010 death.

Rather, it says their “warrantless and unconstitutional entry” into Frank Walden’s house and their “unreasonable seizure” of Mark Walden caused him to suffer “significant physical injuries by his ultimate medical mistreatment at RiverBend where he should never have been taken.”

The suit, filed this week in federal court, also accuses the officers of violating the Americans with Disabilities Act and Mark Walden’s due process rights. It also accuses the Eugene Police Department of negligence for allegedly failing to adequately train officers how to properly detain, hold and communicate with mentally ill subjects.

Police spokeswoman Melinda McLaughlin said the department had not yet been formally served with the lawsuit and had no immediate comment. However, a police report obtained by The Register-Guard contradicts many allegations in the suit.

Mark Walden died Dec. 13, 2010, at Sacred Heart Medical Center at RiverBend, according to a death certificate signed Dec. 15, 2010, by Dr. Daniel Davis, the deputy state medical examiner for Lane County. The certificate does not list a cause and manner of death, citing “pending investigation” and “pending additional studies,” but other documents in a Lane County Circuit Court probate file show that PeaceHealth paid a $500,000 wrongful death settlement to Mark Walden’s parents and to his estate.

According to Portland attorney Robert Beatty-Walters’ sworn statement to a judge explaining the wrongful death settlement, Mark Walden had been a longtime patient of Lane County Mental Health, which had treated his schizophrenia with a daily 250-mg dose of the drug clozapine. Walden had voluntarily gone off the drug, though, several days before police took him into custody at his father’s home on Dec. 2, 2010,
Beatty-Walters wrote.

Protocols for the drug require that patients taken off it for even a few days gradually ramp back up on their dosage to avoid risks including “cardiac arrhythmia leading to cardiac arrest,” Walters wrote. But hospital personnel immediately started Mark Walden back on a 250-mg dosage, he wrote.

“Less than four hours later, (Mark Walden) suffered cardiac arrest, which resulted in his ultimate death Dec. 13,” Walters wrote.

According to Frank Walden’s lawsuit on behalf of himself and his son’s estate, Mark Walden began showing symptoms of bipolar-type schizoaffective disorder following “a significant closed-head trauma” as a teenager. Mark Walden was hospitalized more than 20 times in the first decade he had the disorder, the suit said. But he stabilized after he began taking clozapine in 1997, according to the suit. He lived with his father and legal guardian, maintaining his own room, purchasing his own groceries, helping care for an invalid uncle, even earning a bachelor’s degree in psychology from the University of Oregon in 2010, the suit alleges.

Between 1997 and Dec. 2, 2010, Mark Walden was hospitalized only once, the suit says, after a September 2010 incident in which Frank Walden called Eugene police to “assist him with his son” after Mark Walden stopped taking his medication.

“A mental health hold was placed on him at the hospital,” the suit says, and he again “became compliant with his medication regimen.”

The suit charges that the Dec. 2 incident began when Mark Walden again went off his medication — reportedly because he wanted to be “normal” — and began showing signs of active mental illness.

A nude Mark Walden was “in the process of stacking his furniture in the living room to clean,” according to the suit, when his father “attempted to call CAHOOTS,” a local non-profit organization whose mobile crisis intervention teams are dispatched through the Eugene police-fire communications center. Frank Walden sought help from CAHOOTS because its personnel knew his son, a sometime volunteer, and had previously helped talk Mark Walden back onto his medical regimen, the suit says.

Instead of CAHOOTS, however, Frank Walden reached a non-emergency police line and told an unnamed individual that he wished to notify CAHOOTS that “his son was having some difficulties again,” the suit contends. It alleges that Walden “specifically instructed the individual (that) he did not desire the police to respond.”

When officers arrived anyway, Walden asked them to leave and told them they did not have permission to enter his house, the suit alleges.

“The officers did not have a warrant and did not see Mark Walden until they unlawfully entered the home,” the suit charges. It also says Frank Walden told the officers that his son was “not dangerous” and “not suicidal.” Oregon law allows police officers to place mental health holds on subjects only if they believe them to pose a danger to themselves or others.

The suit also calls a police report on the incident “a contrived work of fiction” prepared by Solesbee. But a copy of the report, obtained Friday by The-Register-Guard, indicates that it was prepared by Officer Dale Dawson and signed by Stubbs.

In it, Dawson reported that the three named officers and two others were dispatched to Walden’s home on a report of “a mental subject behaving strangely.” Dawson also wrote that Frank Walden told him he’d called police because his son was “behaving in an irrational manner and could not safely care for himself.”

The report made no mention of Frank Walden denying entrance to the officers but said Dawson and Sgt. Stubbs first made contact with Mark Walden in his bedroom, where they found him removing items from a closet. He refused their request that he put on clothes and demanded that they leave his house, the report said.

“I told him his father, Frank, had called us,” Dawson wrote. “He said that man was not really his father, he had been replaced by an alien. Mark also told me of the bones in his hands and feet being removed and put back into his body backwards.”

The younger Walden became agitated and had both hands full of “items he had taken from a dresser drawer,” the report said. Dawson described the items as “10 to 15 pocket knives,” which he threw at the officers. The lawsuit calls that account a distortion, saying the knives were holiday gifts still sealed in their boxes.

The report said Dawson “believed Mark could not take care of himself and was behaving in a manner likely to put himself in danger if not taken into custody and taken to the Johnson Unit for an evaluation.” It said Dawson and Stubbs put Mark Walden into “control holds,” handcuffed him for officer safety, wrapped his lower body in a blanket and carried him to a gurney where medics were waiting.

Ironically, the lawsuit contends that Mark Walden should have been taken to the Johnson Unit, a secure psychiatric facility at Sacred Heart Medical Center University District, where staff members “had a file on him and were familiar with the significant medications he took.”

For reasons not explained in the police report, however, Eugene Fire Department medics instead transported Walden to Sacred Heart Medical Center at RiverBend.

The civil rights suit was filed by Beatty-Walters and Portland attorney Michelle Burrows. She worked with Montana celebrity lawyers Kent and Gerry Spence to win a $1 million settlement for the family of Fouad Kaady, a 27-year-old Gresham man Tasered and fatally shot by Clackamas County and Sandy police in 2005 when he failed to comply with their requests after being burned in a car crash.

The local suit also accuses the Eugene Police Department of treating “mentally ill individuals as criminal detainees rather than medical patients,” and of “failing to call medically or specially trained individuals to assist” with detention of such subjects.

Dawson’s police report, however, lists “non-criminal mental hold” under its charge category.

Sgt. Solesbee has been involved in two other high-profile incidents involving Eugene police: on March 13, 2009, he forcefully arrested an environmental activist, who was handing out leaflets and used a handheld video camera to record most of the incident, outside an Umpqua Bank branch in downtown Eugene. The activist, Josh Schlossberg, alleged that his constitutional rights were violated and successfully sued the city and Solesbee. The city was ordered to pay $419,000 to cover legal fees for Schlossberg and attorneys involved in the case.

Solesbee was also involved in the Dec. 15, 2010, shooting of a former Army soldier in the throes of a post-traumatic stress disorder episode who had fired several gunshots in a crowded Valley River Center parking lot. The man, Springfield resident Michael Mason, was paralyzed after being shot by Solesbee and Officer Marcus Pope while sitting in his vehicle in the Santa Clara area after not responding to the officers’ commands. Lane County District Attorney Alex Gardner later ruled the shooting justified.