By Tommy Witherspoon,
Tribune-Herald staff writer
Wednesday, March 15, 2006

City attorneys ask to be dropped from wrongful death suit

Attorneys for the city of Waco asked a judge Tuesday to dismiss the city from a wrongful death lawsuit filed by the family of a disabled veteran who died after being shocked by Waco police with electrical stun guns.

Judge Vicki Menard of Waco's 414th State District Court withheld a ruling after hearing arguments from attorneys for the city and the family of Robert Earl Williams Sr., who died June 14, 2005, after being subdued by police during a disturbance at his sister's house.

Waco attorney Charles Olson, who represents the city, argued that the city should be dismissed from the suit because it has sovereign immunity against claims arising from intentional acts, as opposed to negligent acts, by city employees.

Olson charged that the plaintiffs are trying to skirt the city's immunity against such claims by alleging that the officers acted negligently instead of intentionally.

He said the city also is immune from lawsuits concerning the results of discretionary law enforcement decisions, such as the use of Taser devices. Besides the city, the lawsuit also names as defendants Taser International and Affordable Realistic Tactical Training, a company that trained Waco officers to use the Tasers.

Austin Tighe and Vic Feazell, Austin attorneys representing the Williams family, said they found Olson's argument interesting, particularly in light of the fact that most, if not all appellate courts, have interpreted an “intentional act” to mean intent to injure.

Tighe told the judge that Olson was attempting to “replead our case” by claiming that they are alleging intentional acts instead of negligent ones.

“I think it is an interesting choice of words to say that those officers intended to injure Mr. Williams,” Tighe said. “I thought it was, to say the least, a very interesting choice of words . I don't think any of those policemen would agree with what the city's lawyer said in the courtroom today.”

Olson countered that he merely was repeating allegations that the plaintiffs made in their lawsuit, “almost all of which I dispute.”

“The hearing was all about their allegations,” Olson said. “The court is being asked whether or not their pleadings are sufficient to keep them in court. If the court determines that they have alleged some negligence, then they probably stay in. If what they have alleged is intentional conduct, then certain waivers of immunity don't apply and the city is immune. What we are saying is you can't change intentional allegations just by dropping in the word ‘negligence.'”

Feazell, a former McLennan County district attorney, said his lawsuit alleges negligence on the part of the officers and on the part of the city for failing to train them properly. No one, he said, is claiming that the officers intended to hurt Williams.

“If they had intended to injure him, they had something on their other hip that would have done that,” Feazell said, referring to a pistol. “I don't think any of those policemen would have appreciated what the city's lawyers said today. We never said it was intentional. We don't believe those policemen intended to kill him.”

Waco police have confirmed that it took five officers and multiple shocks with the Taser device to subdue the 6-foot-1-inch, 280-pound Williams.

Officers initially were called to the 1900 block of S. 22nd Street in response to a reported domestic disturbance involving Williams and his sister. The officers attempted to arrest Williams after they learned that he was wanted on an outstanding arrest warrant because his bond had been revoked on a previous resisting arrest charge, a Waco police spokesman has said. Police said, at that point, Williams picked up a ribbed steel bar known as “rebar.” Officers shot him at least four times with Tasers, which had no effect on Williams, police have said.

An autopsy showed that Williams died from “acute physiologic stress associated with multiple electrical shocks during attempted restraint by police for schizophrenia with excited delirium.”

Also contributing to his death were high blood pressure, heart disease, complications from diabetes and obesity, according to the autopsy.