Court: New trial in case of man who told police ‘Can’t breathe’

Cecil Lacy Jr. of Tulalip died in 2015 while in police custody.

Cecil Lacy Jr. (Family photo)

Cecil Lacy Jr. (Family photo)

TULALIP — Attorneys for the widow of a Tulalip man who said “Can’t breathe” shortly before his death while being subdued by police can argue the case at trial, a state Court of Appeals wrote in a ruling released Monday.

Cecil Lacy Jr. was 50 when he died in September 2015 while in police custody on the Tulalip Indian Reservation. He was being detained by two members of the Tulalip Police Department and a Snohomish County Sheriff’s Office deputy. The deputy was on Lacy’s back when the tribal member lost consciousness, according to the 28-page ruling.

The lawsuit against Snohomish County alleged battery and negligence on the part of the deputy. A trial was held in King County where a judge dismissed the case for insufficient evidence before it reached the jury.

In late 2018, King County Superior Court Judge Karen Donohue issued her directed verdict, finding “There is nothing to indicate that (the deputy) escalated the situation or that excessive force was used … There is no testimony at all that any of the officers engaged in excessive force.”

The Court of Appeals wrote that the trial judge was correct in dropping the negligence claim but erred in dismissing the allegation of battery.

At trial, according to the ruling, a plaintiff’s expert on police practices said “a reasonable officer would have recognized that (Lacy) was suffering from excited delirium,” an extremely agitated state often associated with deaths in police custody. An FBI bulletin describes it as “a serious and potentially deadly medical condition involving psychotic behavior, elevated temperature, and an extreme fight-or-flight response by the nervous system.”

The witness maintained that if the deputy had recognized Lacy was experiencing excited delirium, he would have stopped putting pressure on his back. The Court of Appeals wrote that Lacy told officers “(I’m) Freaking out … (I) Can’t breathe” shortly before he lost consciousness.

The deputy, according to the appeals court ruling, told Lacy: “Cecil, you’re breathing. You’re talking. You’re breathing. Just focus on deep breaths … and calm down.”

The interaction from when the deputy became involved and when Lacy lost consciousness was less than nine minutes.

The Court of Appeals wrote: “We cannot conclude, as a matter of law, that (the deputy) acted reasonably when he applied and maintained pressure on the back of a handcuffed, unarmed, mentally ill and agitated human being who was in a prone position, exclaiming that he could not breathe. That decision should have been left to the jury.”

Seattle attorney Ryan Dreveskracht, who is representing Lacy’s wife, said Monday he was not surprised with the Court of Appeals ruling and looks forward to getting the facts in front of a jury. The family continues to maintain that Lacy’s death was a preventable tragedy and the county is liable.

In 2015, the county’s medical examiner at the time ruled the death accidental. It was attributed to a heart attack due to methamphetamine in his system and several health-related factors. Those include an enlarged heart, obesity, hypertension, diagnoses of schizophrenia and bipolar disorder as well as the struggle with police.

Jason Cummings, the county’s chief civil deputy prosecutor, said attorneys in his office were reviewing the Court of Appeals ruling Monday afternoon to determine what next steps should be taken.

“The facts haven’t changed,” he said. “The law hasn’t changed. We remain confident.”

Lacy had been a commercial fisherman who once worked for the tribes recreation department, according to his obituary. He also enjoyed writing.

Eric Stevick: stevick@heraldnet.com

Talk to us

More in Local News

After escaping on Wednesday, an emu named Sarah has been safely returned to AJ's Acre, a farm located near the Alexander Road and the Mukilteo Speedway. (AJ's Acre)
An escaped emu is returned to its farm in Mukilteo

Missing since Wednesday, the female bird was noticed by a neighbor and safely recovered Saturday.

Frances McDormand in "Nomadland." (Searchlight Pictures) 20210304
Masked in a nearly empty theater, a movie outing at last

Just four of us were in the audience for a matinee showing of “Nomadland” at Stanwood Cinemas.

A Marysville Pilchuck football player sports a spear on his helmet as the Tomahawks took on Snohomish in the Wesco 3A Championship Friday evening at Quil Ceda Stadium on November 1, 2019. School district leaders may soon need to consider dropping Marysville Pilchuck High School’s mascot, the Tomahawks. (Kevin Clark / The Herald)
Should Marysville Pilchuck High drop the name ‘Tomahawks’?

A state bill would ban Native American mascots and symbols from schools — unless there is tribal permission.

Broadway closed after ‘small explosive device’ is found

The Everett Police Department bomb squad responded and “rendered it inert.”

Mark Mulligan / The Herald
Sunset Falls cascades down past the existing fish ladder along the Skykomish River east of Index, February 4, 2014.
Photo taken 20140214
New hatchery on Skykomish to end practice of importing fish

A plan to capture fish from Sunset Falls near Index and release them in the river is open for public comment.

James Myles walks his 5-month-old Pembroke Welsh Corgi Ellie around Martha Lake Park on Tuesday, March 2, 2021 in Lynnwood, Washington. Myles entered Ellie into a contest called Americas Favorite Pet, where she's currently in 2nd place for her group. (Andy Bronson / The Herald)
Vote for Ellie: Fluffy corgi from Lynnwood vying for top dog

“Her Fluffiness” is competing to be America’s Favorite Pet. The contest raised $300,000 for PAWS last year.

Washington State Governor Jay Inslee speaks with special ed Pre-K teacher Michelle Ling in her classroom at Phantom Lake Elementary School in Bellevue, Wash. Tuesday, March 2, 2021. (Ellen M. Banner/The Seattle Times via AP, Pool)
Governor: Educators are now eligible for coronavirus vaccine

“This should give educators more confidence,” Jay Inslee said. Other frontline workers could soon be next.

Riaz Khan speaks at the groundbreaking at the site of the Islamic Center of Mukilteo that he helped spearhead over the last seven years on Saturday, March 6, 2021 in Mukilteo, Wa. (Olivia Vanni / The Herald)
Ground is broken for Mukilteo’s own mosque

The Islamic Center of Mukilteo has been seven years in planning.

Most Read