Published: Thursday, August 14, 2008
Chapter VII: The Struggle
(click to enlarge photo)
|Mylo Harvey's mother, Diane Henry, visits the south Everett roadside where Mylo lost consciousness in a struggle with police.
"911, what are you reporting?"
"A naked man running around my apartment complex, screaming his head off."
"911, what are you reporting?"
"Um, actually a streaker. There's this naked guy across the street on Casino and Fifth Avenue in the parking lot of Tesoro."
"He's at the Tesoro parking lot now?'
"Yeah. I just, I heard some yelling and stuff and I just happened to look out my bathroom window and saw him."
I read the 911 transcripts, scoured the police statements and watched grainy security camera videos from the night Mylo died. The file documented an incident best avoided. But as a prosecutor friend of mine often says, it's cops who give the rest of us the option of walking the other way.
The cameras caught Mylo the way police encountered him that night, naked and leaving a convenience store where he'd just made a mess.
The first officer on the scene pinned Mylo in the spotlight of his patrol car. He used his public address speaker, ordering the young man to get on the ground.
Instead, Mylo walked straight to the police car. The officer put the vehicle in reverse and started to back away. He didn't want to confront the naked man alone; he'd been trained it wasn't safe.
Mylo kept coming. The officer kept driving in reverse. The pair circled in the middle of the intersection, Mylo on foot, the officer driving backwards.
Only when he saw the flashing emergency lights of backup racing to the scene did the officer climb out of his car. The engine was running; the doors unlocked. He ordered Mylo to get on the ground.
Instead Mylo approached the squad car's passenger side and opened the door.
"I need a ride," Mylo said, trying to climb in.
That's when the officer decided to use pain to gain control. He grabbed a can of pepper spray from his utility belt, but in his haste dropped it on the ground. He picked it up and sprayed Mylo in the face.
"I don't want to die," Mylo said, rubbing his eyes.
A blast of pepper spray to the face is painful enough that most people can only think of surrendering and getting help. Mylo wasn't thinking right. He ignored the officer's repeated commands to get on the ground. He kept jumping up and down, screaming "I don't want to die!"
The officer pulled out his metal baton, opening it to its full length with a quick shake of the wrist. He began to strike Mylo on the thighs and order him to the ground. Witnesses quoted in police reports described a judicious use of force. Other witnesses found by Mylo's attorneys had the opposite opinion.
The baton blows drove Mylo to his hands and knees. The officer kicked at Mylo's arms and legs in an attempt to get him prone so he could be handcuffed. Pain still did not produce results. Mylo was soon back on his feet and moving. He was tackled by another officer.
It had been drizzling that day. Mylo grew slick with a mixture of rain, sweat and pepper spray. He slipped free. The officer with the baton took a swing, connecting with the back of Mylo's head. The scalp wound gushed blood and required staples to close.
More officers arrived.
Trained to stop a struggle as rapidly as possible, they immediately joined in.
Mylo broke free again.
The officers later wrote that Mylo seemed unnaturally strong. The struggle eventually wound up against a wooden fence at the back of a planting strip bordering the roadway. By then, there were close to 10 officers involved in the melee; four struggled directly for control of Mylo.
"I don't want to die," he screamed. "Don't let me die."
Police didn't want to die, either.
Close-range struggles are particularly dangerous for police because suspects can grab an officer's handgun. Everett police were all briefed on the 2002 death of King County sheriff's deputy Richard Herzog.
Five months earlier, Herzog was shot to death, execution style, with his service weapon by a naked man high on crack who had tackled the lone deputy. Some of the Everett officers who struggled with Mylo, including the first to encounter him, later told investigators that Herzog's death weighed heavily on their minds.
The fight with Mylo wound up on the ground. The teen initially was on his stomach but managed to roll onto his back. One officer entwined Mylo's legs with his own, a wrestling move known as a reverse grapevine.
The officer grabbed the back of Mylo's head. He pulled down hard, forcing Mylo's chin tight against the teen's own chest. That made it difficult for Mylo to open his mouth and reduced the officers' risk of being bitten by him. They remained in that position while the other officers tried to pin Mylo's arms.
The teen still was talking. Then, officers reported, he suddenly slipped into unconsciousness. Handcuffs were snapped around his wrists. Officers bound his feet with nylon straps. When his family read the reports later, it bothered them that one of the restraints used was the leash a police dog handler had been carrying in her uniform pocket.
Mylo was placed on a paramedic's backboard and strapped down. The officers told the aid crew waiting nearby that Mylo, though unconscious, had a pulse and was still breathing.
The paramedics moved in and quickly realized that wasn't so. They got Mylo's heart pumping and restored his breathing.
An ambulance raced him to the hospital, where doctors determined his brain had died. There was nothing doctors could do. Four days later, Mylo took his last breath.
A year later, as I reviewed the police reports, I was struck most by how they all read the same. That was unusual, I knew, because eyewitnesses, particularly those under great stress, rarely tell identical stories.
The follow-up reports filed by detectives mentioned that Bob Christie, the city's attorney, was present for key interviews. Those same reports noted that the lawyer reviewed detectives' questions before they were asked of the officers.
Christie explained that his job from the outset was to prepare Everett and its police officers for litigation. When I asked, he acknowledged reviewing the officers' statements before they were filed in the case. He also said he helped draft the letter refusing to meet with tribal leaders, which the city sent shortly after Mylo's death.
He was confident that the city would be exonerated in the civil rights lawsuit Mylo's family filed in 2005.
"In all candor the only thing that didn't go correctly was this guy stopped breathing and that was not foreseen," he said.
Why did Mylo die?
There were two theories by the time the trial approached in the fall of 2006.
Christie had lined up experts who would testify that Mylo's death was linked to excited delirium. The prolonged struggle with police, driven by Mylo's drug-induced state, created a deadly exhaustion and lethal changes in his blood chemistry that stopped his heart, he said.
Lawyers for Mylo's family told the court they had experts who would testify that the young man likely died from a combination of being struck on the head with a police baton and having his chest compressed under the weight of struggling officers. Everett was negligent, they contended, for failing to train its officers on less- combative strategies for handling such police calls.
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