The city of Waco, the Texas attorney general and the family of a man who died several hours after a struggle with police remain in a stalemate about the release of records about the 2010 death.
The city filed a lawsuit last fall against Texas Attorney General Greg Abbott to fight his office’s order to release information in the Waco police file about the death of 36-year-old Rodney Earl Green.
City attorneys said Waco’s fight against releasing those records, which the attorney general’s office said should be made public, was prompted by a potential lawsuit they expect Green’s family to file against the city.
It was unclear last week whether the family intends to file suit. Responses from Green’s mother, father and sister were mixed about whether litigation is certain, and if so, if it would hinge on the contents of the police file.
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The family does not have an attorney now but has retained one in the past related to the incident, said Abraham Green Jr., Rodney Green’s father.
A potential lawsuit aside, family members said that blocking the release of records in the case is delaying closure for their loss.
“We just want to understand what happened to my son,” said Diane Manigo Green, Green’s mother. “We probably never will . . . but if they would take the time to let us see the tapes and file, we could get a sense of what happened.”
Green’s family has submitted at least two requests to the city for the information since Nov. 25, 2010, when police encountered Green near the intersection of South 12th Street and Bagby Avenue.
He was subdued with a Taser for his own safety and the officers’ safety after he refused to obey officers’ orders to stay out of the roadway, police said.
A year and a half after family members were notified Green died at Hillcrest Baptist Medical Center, they know no more than they did after meeting with officials shortly after the incident, according to Green’s family.
The denial of those records has been a source of frustration, they said. Jacquetta Green, Green’s sister, said the city’s refusal to release them is fueling suspicion about what happened that evening.
Scott Bounds, an attorney representing the city in its lawsuit against the attorney general, said Friday afternoon that there is no evidence the records contain information that would cast suspicion on the event.
The purpose of the city’s lawsuit is to establish that the information contained in the files is not public information because it is related to “contemplated litigation or reasonably anticipated litigation,” added Bounds, of Houston-based firm Olson & Olson.
No lawsuit against the city had been filed as of last week, family members told the Tribune-Herald .
Thanksgiving night
In November 2010, police responded to the intersection of South 12th Street and Bagby Avenue about 6:30 p.m. after a report that a vehicle, later determined to be registered in Rodney Green’s name, smashed into a pole. When officers arrived, they found Green behaving “erratically,” appearing disoriented and refusing to follow their orders to stay out of the street, according to authorities.
A struggle ensued as police attempted to detain Green, officials said. A Taser was used to subdue him, but even after the shock, he was able to break a pair of ankle restraints, according to officials.
Shortly after, Green lost consciousness. He was pronounced dead at Hillcrest Baptist Medical Center about four hours later.
Police and hospital staff told his relatives later that Green was stunned three times during the incident, according family members, who questioned whether the use of force was necessary.
The number of times Green was shocked with the Taser has not been confirmed by police.
Citing the possibility of pending litigation, Waco police Sgt. W. Patrick Swanton declined to discuss the case last week. Messages left at the city attorney’s office Friday were not returned.
Autopsy report
An autopsy report issued several months after the incident listed the cause of Green’s death as “toxic effects of cocaine and the physiologic stress associated with police struggle, compounded by cardiac hypertrophy and asthma.”
The “manner of death” was undetermined because “involved officers reported applying pressure to the mandibular angle pressure point immediately prior to his cardiac respiratory arrest and because the role of this application is unclear,” according to the report by the Southwestern Institute of Forensic Sciences.
An internal investigation into the incident concluded that the four officers involved in restraining Green did not break any laws or violate department protocol in their handling of the situation, police said.
Those findings were confirmed by a McLennan County grand jury review in June 2011, according to officials.
The conclusions of the grand jury effectively ended the investigation into the case, authorities said.
Although officials talked with Green’s family about the circumstances surrounding the incident, his parents and sister said many of their questions haven’t been answered.
They said they hope materials in the police file will give them more information.
The attorney general initially ruled in January 2011 that the records could be withheld, except for basic information on an incident report, because of the ongoing investigation into the matter.
Family members have received parts of an incident report, but it sheds no light on the case because it is heavily redacted, Diane and Abraham Green said.
Once the grand jury declined to pursue the case, the family again filed an open records request with the city, asking for everything in the police file.
“They said everything was finished and the case was closed, but when we go to get the 9-1-1 (records), all that stuff, they said, ‘We can’t give it to you,’ ” said Diane Green, of El Paso. “We can’t figure out why they can’t give it to us.”
City attorneys asked the attorney general to determine whether the material was public information, arguing that it should be withheld because the city “is or may be” a party to litigation.
In the letter to Greg Abbott’s office, attorneys cite a meeting between family members and Waco police in which “requestor’s family was short and their tone hostile,” leaving the department “with the impression the family will file suit.” They also point to a notice of representation, filed by a Dallas-based attorney on Jan. 4, 2011, as evidence of an impending lawsuit.
In a written opinion issued Oct. 5, the attorney general’s office ruled much of the file was public information, ordering that documents and other materials be released with some specific redactions, such as a telephone number, certain medical records, and bank and motor vehicle details.
Evidence presented by city attorneys was not enough to prove they reasonably anticipated litigation at the time of the request, according to the written ruling. Officials failed to provide “concrete evidence showing that the claim that litigation may ensue is more than mere conjecture,” and found there was “no evidence the requestor had taken any objective steps toward filing a lawsuit at the time of the request,” the letter states.
Three weeks later, the city filed a lawsuit against the attorney general’s office in the 250th District Court in Travis County, requesting “declaratory relief from compliance” in the attorney general’s ruling.
Response filed
The attorney general has since filed a response asking the judge to “enter a final judgment that declares the information at issue to be subject to disclosure” and order the city to pay all costs of litigation.
Litigation is the only recourse municipalities have when agencies disagree with an open records ruling, according to officials.
The Tribune-Herald , which requested documents in the case in November 2010 and January 2011, received no ruling from the attorney general in its most recent request because of the pending litigation between the attorney general’s office and the city.
“We are closing our file . . . without issuing a decision and will allow the trial court to determine whether the information at issue must be released to the public,” wrote Jennifer Luttrall, assistant attorney general.
No hearing date has been set.
The attorney who initially represented the family and who sent a notice of representation to the city is no longer working for them, declining the case without explanation shortly after a preliminary autopsy report was issued, said Abraham Green, of Johns Island, S.C.
Abraham Green suggested that the city may be trying to tie up the records until the statute of limitations for a lawsuit, typically about two years, runs out.
Bounds disagreed with the claim.
“I don’t think that’s the purpose,” Bounds said. “The city is prudently managing access to records that may be related litigation.”
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