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Death of Norfolk man raising questions about law, police conduct
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Death of Norfolk man raising questions about law, police conduct

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The death of Donnell Earl Worsley at the hands of Norfolk police more than four years ago never raised much of a public outcry.

But a state Supreme Court ruling in the lawsuit that arose from the death vastly broadens the level of immunity that can apply to the actions of police performed in the line of duty.

Worsley, 34, succumbed to injuries two months after a speeding police car — its emergency lights off, its siren silent — ran him over on his bicycle in the pre-dawn darkness, dragging him about 60 feet. He had been at a birthday party and then at his mother’s home and, heavily intoxicated, was riding his bicycle home. Worsley, hospitalized for more than two months with severe head injuries, was laid to rest Oct. 2, 2010.

“I raised my children to always respect the law, but the justice system has shown no remorse or respect for the death of my son,” said Worsley’s mother, Carolyn McBride, a grandmother to nine children and the plaintiff in a lawsuit that is seeking millions of dollars in damages.

She still feels the pain, she said, of sitting in a Norfolk courtroom and seeing the officers charged in her son’s death plead to reduced charges of reckless driving. Family and friends join her to hold candlelight vigils three times a year at the site of Worsley’s death: on his birthday, the day he was struck, and the day he died.

“So it is not like he has been forgotten,” said family lawyer Carl La Mondue, “but there certainly is nothing on the scale of Ferguson.”

Still, the death of Donnell Worsley is generating a storm of legal arguments regarding the consequences of police conduct, or lack thereof, in a case that has broad repercussions across the state in cases of law enforcement’s actions and the harm that can come to the public.

At issue is a state Supreme Court finding in late October that the officers involved in Worsley’s death, even though they were violating department procedure, are immune from civil damages because they were acting in the line of duty and not outside “the limits of permissible judgment and discretion.”

This week, court documents will be filed on Worsley’s behalf seeking a rehearing of the case. Worsley’s family is seeking $33 million in damages. Besides the financial element, the case carries broad implications for police and other public employees across Virginia — from truck drivers to highway workers — relative to liability issues and public safety.

On one hand, the decision appears to vastly broaden existing law relative to conduct that is immune from liability. But the decision also seems to sanction reckless police conduct in non-emergency situations even when it can threaten public safety.

“If the opinion holds, this is going to really frustrate the idea of people, especially police officers, being held accountable for their actions,” said Thomas J. Cursio, president of the Virginia Trial Lawyers Association. He said the case undermines decades of precedent in Virginia law.

The rehearing petitions follow the state high court’s October decision that concluded the two officers responding to an unspecified domestic disturbance were immune from liability because their actions constituted an “exercise of judgment and discretion ... that allows for the invocation of sovereign immunity.”

Sovereign immunity is the long-held legal doctrine that maintains someone can’t be held liable for the consequences of his actions as a public official or employee when those actions are a reasonable exercise of his public duty.

In the early morning hours of July 25, 2010, Norfolk police officers Derek M. Folston and Joey G. Bennett Jr. responded to a domestic situation that carried no emergency criteria. They traveled together in separate cars at speeds exceeding 80 mph without lights or sirens and against standing orders that the situation carried a level of urgency requiring that all traffic laws be followed.

At some point, Bennett had to slam on his brakes to avoid hitting the bike-riding Worsley in the roadway. Folston, traveling close behind, swerved into the adjacent lane to avoid Bennett but struck Worsley, who had also moved into the lane.

Folston would be indicted for involuntary manslaughter and two counts of reckless driving. The manslaughter charge and one driving charge were dropped; Folston was convicted of a single count of reckless driving and received a six-month suspended sentence and a $1,000 fine. He also was ordered to perform 100 hours of community service, his license was suspended for 60 days and he was ordered to complete a safe-driving course.

Bennett was convicted of one count of reckless driving and received a suspended six-month sentence and was ordered to perform 40 hours of community service.

Neither man remains on the Norfolk police force.

Under the Virginia Supreme Court decision, though, Worsley’s family cannot collect damages in the civil case.

The opinion in Worsley’s case holds that an officer “must make prompt, original and crucial decisions in a highly stressful situation” and that “no policy can account for every situation a police officer may face.” Even though department policy dictated that the response to the domestic call not involve an emergency response, the ultimate decision on how to respond allows for the officers’ “exercise of judgment and discretion” and therefore “allows for the invocation of sovereign immunity.”

But the case also prompted a strong, though lone, dissent from Justice William Mims, who argued that “a public employee who flagrantly violates a direct order is acting outside the limits of his or her permissible judgment and discretion.”

Mims rejects the court majority, noting that “the majority sidesteps the officers’ unjustified insubordination” by violating a dispatcher’s finding that an emergency did not exist.

“They had no knowledge that would permit judgment and discretion to speed recklessly without emergency lights or sirens,” Mims wrote.

By overriding the general orders or published policies that exist pertaining to emergency responses within the Norfolk Police Department, Mims wrote, the officers invited unjustified behavior. The general orders within the police department “are intended to prevent freelancing and ensure respect for the chain of command. In this instance, a superior officer could have authorized emergency operation, but no further request was made.”

And Mims stresses the importance of local conditions and possible harm to the public if, as the majority implies, emphasis on officer discretion and judgment become paramount.

“The chief of police in the city of Norfolk is better able to provide useful guidance to officers than a court 100 miles away,” Mims wrote. “And when that guidance is flagrantly violated, no court should provide a shield of immunity from civil consequence.”

Worsley’s mother says she feels a kinship with the family of Michael Brown, the unarmed teenager killed by a police officer in Ferguson, Mo.

“As I watch Michael Brown’s mother, I can feel her pain,” McBride said last week. “For the police officer not to be indicted is not right. This is no justice. It has to stop.”

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