9-9-15 Anyone who reads Virginia Commonwealth Attorney Raymond F. Morrogh’s 51 page report about the death of Natasha McKenna, the 37 year old African American woman with schizophrenia who died after being repeatedly stunned with a taser while in the Fairfax County Detention Center, can’t help but be appalled.
For those of us with a loved one with a mental illness, his report is painful and frustrating to read because it shows how difficult it is for someone who is clearly sick in Fairfax County to get meaningful help. Except for one doctor, Lydia Haile, MD., most others named in this report dealt with McKenna poorly, some might say callously.
Morrogh’s report is the first detailed account by an official about what happened to McKenna from January 7 — when she was transported by ambulance to INOVA Alexandria Hospital and showed signs of being psychotic — until her death on February 7th.
Prosecutor Raymond F. Morrogh Relies on Excited Delirium In His Findings
Moorogh concludes that no one is criminally at fault. In fact, he praises the deputies involved. While there may be no legal culpability, the report reveals countless failed opportunities when McKenna could have and should have received help but didn’t.
The most detailed information in Morrogh’s report is about McKenna’s physical altercations with the police and sheriff’s deputies. He gives blow-by-blow, in some times, second-by-second accounts of how McKenna kicked, attempted to bite, and spit at officers. He quotes officers claiming that McKenna had super human strength.
Sergeant Timothy said, “For me it’s probably the most difficult inmate I’ve ever had to deal with in that capacity, male or female… And I’ve dealt with… men on PCP fighting… it’s like she didn’t feel pain…” Deputy Guevarez said, “.. I remember it was … a struggle. I mean.. .I’m not a weak guy but she, she was wearing me out; she was wearing us all out. Deputy Holmes said, “.. .in my 19 years, that was the worst inmate.. .1 have ever dealt with. I’ll be honest with you… she was the real deal. Seriously, she was the worst… the hardest inmate.. .I’ve dealt with big guys, I’ve dealt with other females, smaller guys, guys in gang[s]. She was the toughest person that… I have ever dealt with to get her in that chair and with a struggle.” Deputy Viola said, “[Ms. McKenna was] probably one of the most aggressive CO inmates I’ve ever had to deal with .. .in my experience.” Deputy Barb recalled that, “.. .She was pushing with the most force I’ve seen in the… six years I’ve worked there.. .1 had never seen anybody push like this.. .”
In another sentence, Morrogh quotes an officer stating:
I hate to describe it like this, like a demonic possession because she was growling the whole time.
Because McKenna is dead, there is no one to speak on her behalf about what happened. The deputies’ statements go unchallenged and dovetail perfectly with the conclusion of Dr. Jocelyn Posthumus, M.D., a forensic pathologist with the Office of the Chief Medical Examiner who performed an autopsy on McKenna two days after she died and found that she was not the victim of foul play but of excited delirium, which Morrogh explains thusly:
Most persons suffering from excited delirium are hyper-aggressive, impervious to pain, and demonstrate unusual, “superhuman,” strength. They engage in a lengthy period of struggle, followed by a period of quiet and sudden death.
His conclusion: no one is legally at fault — no one that is, except Natasha McKenna. She brought this all on herself.
How easy it is to blame someone with mental illness. How easy it is to claim that everyone followed the rules except the person who was mentally ill. How easy to cry crocodile tears.
Let’s take a look at Morrogh’s use of the “excited delirium” conclusion of Dr. Posthumus.
Morrogh quotes liberally from a report issued by a task force of the American College of Emergency Physicians that states that excited delirium is real. There’s no mention that excited delirium is not a currently recognized medical or psychiatric diagnosis according to either the Diagnostic and Statistical Manual of Mental Disorders (DSM-IVTR) of the American Psychiatric Association or the International Classification of Diseases (ICD-9) of the World Health Organization.
But here is an even more interesting note: if you check the 2012 and 2013 annual statistical reports issued by the Office of the Chief Medical Examiner in Virginia you will not find a single mention of excited delirium as a cause of death in the state. It is not listed as a cause of any death in Virginia during 2013 in the 128 in-custody deaths that were examined by that office. Not one incident. Nor is it cited in the deaths of 60 persons with mental illnesses who were examined. Not one incident. In the entire 238 page annual report in 2013, there is absolutely no mention of a death in Virginia that was attributed to excited delirium.
As the Washington Post has pointed out repeatedly, nearly all deaths associated to excited delirium happened while the deceased was in police custody, which has caused civil rights activists to claim that it is simply an excuse used to justify excessive force and avoid lawsuits.
Now let’s look at failed opportunities when Natasha McKenna could have been helped but was not.
Morrogh notes that McKenna showed up twice at emergency rooms on Jan. 7th “agitated and paranoid” yet left without receiving any treatment. The next day, police found her in a parked car where she was trying to strangle herself with a seat belt. This time the police intervened and she was taken by ambulance to INOVA Mount Vernon Hospital.
While Morrogh goes to great length to describe how McKenna was violent, the report notes:
She was released four days later, on January 12, 2015. Mobile crisis responded and will place in TD for psych admission if necessary.”
Here we have someone in Fairfax County who is clearly mentally ill, has a history of mental illness, has tried to harm herself and is violent but is held in the hospital only four days before being released with no reported discharge plan other than having the county’s mobile crisis response team react if she has some future problem.
That is outrageous!
Two days after she was released, McKenna showed up at a hospital emergency room asking for help. Paranoid and anxious, she told nurses there that she had not been taking her medication.
A perfect chance to intervene and help her.
The hospital called the police and asked the officer who responded to seek an order to have McKenna involuntarily committed. The officer talked to McKenna and decided she didn’t meet criteria so he refused. At that point, Dr. Lydia Haile called a magistrate to get McKenna held for a hearing. She called not once, but twice. But the magistrate said that she had talked to the police officer and based on that officer’s description, the magistrate refused to issue an order.
A medical doctor was so concerned about McKenna’s mental health that she personally called twice but the magistrate (who has no medical training and had not personally observed McKenna) and the police officer (who has no medical training) refused to listen and instead McKenna was driven home.
The following day, January 15th, McKenna got into an argument with a rental car agent and the police were called. Please note that this is three days after she was released from the hospital — three days after her records indicated that mobile crisis team was supposed to respond if her condition worsened. And one day after a doctor had tried to get her admitted.
McKenna was yelling at customers and threatening to kill herself so the police officer who responded this time — a different one — decided based entirely on his conversation with the rental clerk that McKenna needed to be temporarily detained and taken to a hospital for her own safety.
By this time McKenna had left the rental agency and when the officers caught up with her, she asked if she was being arrested.
Ms. McKenna asked if she was going to be arrested and began to walk away. Officer Hurley took Ms. McKenna’s left arm and told her she was not free to leave. Officer Johnson had hold of Ms. McKenna’s right arm. Ms. McKenna began to fight with the officers. Officer Johnson attempted an arm bar on Ms. McKenna and employed closed fist strikes to the back of Ms. McKenna’s thigh in an effort to have Ms. McKenna sit down. Despite Officer Hurley’s request that she stop resisting, Ms. McKenna continued to fight. Officer Johnson deployed OC (pepper spray) but it had no effect on Ms. McKenna. Ms. McKenna then punched Officer Johnson in the face and spun away coming out of her shirt in the process. She then ran out into traffic while naked from the waist up.
The officers eventually overpowered her and called an ambulance to take her to the hospital where she was put in restraints. She waited there two days before she was moved to a hospital which had a psychiatric ward.
Ms. McKenna was “extremely paranoid.” She became uncooperative and began fighting with staff. She kicked, bit, scratched and spat upon male staff members. She also urinated on the bed declaring “I have herpes and I don’t want you’ll to get it, but I’m not afraid to give it to you.” A “Code Strong” was called. Nurses summoned hospital security. Security staff arrived and strapped Ms. McKenna to a “transfer board” and placed her in a “quiet room.”
Morrogh cites this information to demonstrate just how out of control McKenna was on January 21st. You might expect at this point that McKenna would be sent to a state hospital for treatment. You would be wrong.
Four days later, McKenna was put into a taxi cab and sent home. That’s right. From screaming, running naked, being put in restraints and urinating on her bed to being put in a cab.
There was NO mention of any follow up, NO mention of any discharge planning. Instead, she was sent home even though this was the second time that she has been forcibly hospitalized within a seventeen day period.
This time around, McKenna doesn’t even make it a day without getting into trouble. She is released from Mount Vernon Inova hospital at 12:30 p.m. and shows back up at 10 p.m. at Fairfax Inova Hospital delusional. Please note, both of those hospitals are owned by INOVA, so you would presume that there was some sort of shared record exchange. Right? You would think the doctors there would recognize that she had a mental illness since she was claiming that she had been sexually assaulted, but hadn’t been. You would think she would be readmitted.
What did Fairfax INOVA do?
It cleared her for discharge and called the police. So instead of hospitalizing her, the doctors turned her loose and the police arrested her because of the altercation that had happened when she had been pepper sprayed by police on January 15th. She was charged with felony assault on a police officer, her bail was denied and she was taken to jail.
This was a woman who was clearly mentally ill and who had been violent. She had been repeatedly in and out of hospitals yet no one in our mental health care system took charge of her. Instead, she was considered a police problem.
Morrogh carefully explains how disruptive McKenna was at the jail and confirms details that were first reported in The Washington Post when someone in the jail leaked documents to reporter Tom Jackman presumably because that source feared a coverup was in the works. Eager to insure that readers understand just how difficult McKenna was, Morrogh builds his case:
The deputies involved in this January 31, 2015, incident attested to Ms. McKenna’s extraordinary strength and endurance. Unusual strength is a characteristic of excited delirium.
To his credit, Morrogh confirms what I was told early on — that on the day McKenna was repeatedly shocked with a 50,000 taser, she had agreed to not resist when she was first told that she was being transferred. In fact, she voluntarily agreed to be handcuffed. It was only after she saw a Sheriff’s Emergency Response Team waiting outside her cell that she panicked. The reason was obvious. Three days earlier, McKenna had clung to a mattress that deputies were attempting to drag out of her cell because she was using it to block a widow. She had clung onto it and actually been pulled from her cell into the hallway. At that point, she was struck several times on the head to force her back into her cell. Because of that incident, SERT was readied.
The SERT (five officers) team donned stab proof vests, gloves, extraction helmets and white Tyvek suits. They also wore gas masks as Ms. McKenna was a known spitter.
Morrogh’s report explains that the SERT team held a briefing before approaching the cell. His point was to show that the team’s approach was not haphazard. It was by the book. But it also could be argued that it shows the deputies had decided to use force to get her out of that cell regardless of how she reacted.
He asked her if she would cooperate and she said, “Fine.” It was Lt. Miller’s goal to obtain Ms. McKenna’s voluntary compliance with the process and avoid the use of force. Based upon her response, he believed she would be compliant. He asked her to put her arms out of the food slot so that he could hand cuff her. She said “okay” and complied. Lt. Miller handcuffed her and applied the rip hobble to the handcuffs so that Ms. McKenna could not withdraw her hands. However, Ms. McKenna pulled her hands back into the cell causing Lt. Miller to tug the rip hobble outwards to avoid his fingers going through the slot into the cell with Ms. McKenna. Lt. Miller then gave the rip hobble to Deputy Davila so that he could summon the SERT team.
…Ms McKenna came out of the cell, began moving away, and stated, “You promised me you wouldn’t kill me. I didn’t do anything” (2:04 video). Deputy Perryman used the shield to pin Ms. McKenna against the cell door (2:06 video). The use of the shield in this manner was consistent with SERT Training. Lt. Miller instmcted SERT to secure Ms. McKenna’s legs. Ms. McKenna began to resist..
You can read the rest of the blow by blow for yourself.
My legal analysis as to whether the actions of the involved deputies could constitute a criminal act was guided by applicable case law and legal precedent on the use of force by law enforcement. To be lawful, a deputy’s use of force must be objectively reasonable in light of all of the facts and circumstances confronting the deputy. Whether such actions were reasonable is evaluated from the perspective of a reasonable deputy at the scene rather than the 20/20 vision of hindsight. As the United States Supreme Court has explained, “[T] he calculus of reasonableness must embody allowance for the fact that police officers are often forced to make split-second judgments-in circumstances that are tense, uncertain, and rapidly evolving- about the amount of force that is necessary in a particular situation.”
On the evidence here, I conclude that SERT members and deputies acted lawfully and reasonably under the circumstances in attempting to restrain and control Ms. McKenna. The deputies were tasked with a cell extraction involving a severely mentally ill woman with a history of recent violence and resistance towards police officers, deputies and medical personnel. Ms. McKenna’s recent combative behavior included biting, scratching, spitting, kicking and punching. Everyone who dealt with her in these instances, medical personnel as well as police and deputies, described her as being exceptionally strong, irrationally combative and seemingly indefatigable. Further complicating the task confronting these deputies was Ms. McKenna’s creation of a bio hazard with her feces and urine as well as her positive status for herpes and both highly contagious diseases. These deputies found themselves in a protracted and violent struggle with Ms. McKenna. There is no evidence that any of the deputies acted maliciously, sadistically or with the intent to punish or cause harm to Ms. McKenna at any point in the struggle.
To the contrary, they did their best, under very difficult circumstances, to restrain, control and prevent Ms. McKenna from injuring herself or others.
All SERT moves are video taped and now that Morrogh has released his findings, there is no reason why that tape can’t be made public. Sheriff Stacy Kincaid has said she will release it. Having seen such tapes in the past, I doubt the public will be as sympathetic to the deputies involved as Morrogh was in his report.
I am not an attorney and my intent has never been to demand that anyone be criminally charged. However, past actions often filter how we judge current events and Prosecutor Morrogh’s past actions raise concerns.
This is not the first incident of an individual with mental illness dying at the hands of local law enforcement. In 2009, David A. Masters, 52, was fatally shot while he sat behind the wheel of a Chevrolet Blazer at a stop light. Police had been called because Masters had taken flowers from in front of a business. A former Army Green Beret, Masters had been diagnosed with a mental illness. As in the McKenna case, Prosecutor Morrogh found no reason to charge the officer who fatally shot Masters. Here’s the Washington Post’s account.
Fairfax Commonwealth’s Attorney Raymond F. Morrogh described the events that he said led to Masters’s death. Morrogh said that three officers approached Masters’s Blazer and that Masters began rolling forward, nearly striking an officer. A second officer, on Masters’s left, thought the first officer had been struck but did not fire, Morrogh said. The second officer told investigators that he then saw Masters reach down, Morrogh said. “The officer believed he was reaching for a weapon and fired twice,” Morrogh said. The first bullet went through the door pillar, into Masters’s left shoulder, through his chest and then pierced vital organs. The second bullet went through the rear passenger window and grazed Masters, Morrogh said. It turned out that Masters did not have a weapon. But “the officer is required to make a split-second judgment in circumstances that are tense and rapidly evolving,” Morrogh said. “For the officer to wait to see the barrel of the weapon, you can’t expect an officer to do that.”
Morrogh said the other two officers at the scene did not see Masters reach down. No other witnesses reported seeing the reach.
Masters was unarmed and the Fairfax police department quietly fired the officer involved in that fatal shooting.
In the Masters’ case, Morrogh again cited the Supreme Court decision that said “reasonableness must embody allowance for the fact that police officers are often forced to make split-second judgments…”
Because of other recent fatal shootings by Fairfax police of citizens, who didn’t have mental disorders, the Board of Supervisors created a Ad Hoc Police Practices Commission . I am on that commission and I recently posted our subcommittee report that made specific recommendations that I believe, if implemented, could prevent future tragedies.
A key component of our recommendations is the development of a jail diversion program and county officials were so eager to get the ball rolling that they announced a DIVERSION FIRST meeting within days of our report’s release. All of the county’s top members of law enforcement and several judges attended that meeting and expressed their support in adopting diversion programs that could help future Natasha McKennas stay out of jail and get help. Every major law enforcement officer attended that meeting except Commonwealth Attorney Raymond F. Morrogh. His unexplained absence was a slap in the face to all of us who have been working for years to implement jail diversion.
Morrogh’s 51 page report, which blamed McKenna for her own death and relied on the questionable “excited delirium” excuse, his handling of the Masters’ shooting, and his seemingly indifference to publicly supporting DIVERSION FIRST have caused many of us with loved ones who have mental disorders to question if he really understands the plight of persons with mental illnesses in our county or cares about them.
The Justice Department has announced that it is investigating McKenna’s death. If its findings differ from Morrogh’s, Fairfax voters should retire him at the ballot box.