I’ve been reading District Attorney David Soares’ letter to Mayor Sheehan on the death of Donald (Dontay) Ivy while in police custody. I’d like to discuss some of what came out of the D.A.’s investigation.
Donald Ivy went out to an ATM, to collect disability benefits, intending to come home. David Soares describes Dontay’s first encounter with the police that night. Two officers [quote] “approached … [Dontay Ivy] sitting on the steps of a property in the South End. The officers approached … in an attempt to learn if he was trespassing.” [close quote] Satisfied that he was’t, they left. Have you ever rested on the steps of a building? Did you think you were trespassing? You weren’t and he wasn’t unless the owner or tenant conveyed an objection or he had gone through a lock, door, fence or barricade. For the police, the mere fact that an African-American man was sitting on some steps was enough to check on him.
A little later that evening, Dontay was walking on Lark Street. Soares noted that it was 26 degrees according to “historical weather data.” But the officers’ became concerned because he was wearing a winter coat, what they called “a ‘puffer’ coat,” [close quote] was [quote] “walking heavily on his left arm” [close quote] and [quote] “appeared to be bunching up his left hand into his sleeve.” [close quote] I’ve done that, sometimes to shelter something from the weather, sometimes because one hand was colder, because of the way I’d been using my hands or had somehow restricted circulation in one hand.
According to District Attorney Soares, one officer said [quote] “the way he was walking didn’t seem right.” [close quote] I don’t know why – a crick, a cramp, or a little arthritis. I can imagine someone coming up to me and asking if I was OK. But the officers asked to see Dontay’s hands and wanted to know where he was going. I can’t relate to that from my experience. Can you?
Apparently because Dontay had on a loose fitting winter coat, whatever he was able to afford on his disability check, one of the officers [quote] “was under the impression that Mr. Ivy might have had a weapon, or possibly drugs.” [close quote] That inference was’t backed up by anything found on Mr. Ivy. It’s an inference that could easily be drawn about most of us sometimes, but I suspect few of us have had police make that kind of inference about us – certainly not if we have white skin and decent clothes.
The report continues that one officer [quote] “noticed what appeared to be a tied-off plastic baggy of the sort used to package drugs on the ground, about ten to twelve feet away from Mr. Ivy, near where he had been walking.” [close quote] If I had to explain every plastic bag found near me when I’m out for a walk, neither the police nor I would have time for anything else. And plastic bag stories are so common in cases where police are trying to justify a search that everyone in the criminal process has become enormously skeptical. It later turned out that the bag was empty.
After they questioned him further, they decided to pat Dontay down. According to the police, he consented, but reacted to being touched by pulling his hands down. Soares’ letter says, “From interviews with members of the Ivy family, we are led to believe that, as part of his mental illness, Mr. Ivy did not like to be touched.” [close quote] Mr. Ivy was under medication for his illness. Let me add that I have learned, from experience and from some direct remarks, that many African-Americans do not like to be touched even in ways that are completely unexceptional in the U.S., including a tap on the shoulder which got me a withering look from a speaker at an event of an organization of which I was a board member.
Obviously things kept getting worse until, as David Soares summarized the findings of the medical examiner, [quote] “Mr. Ivy suffered from an underlying condition that made him particularly susceptible to a heart attack brought on by the stress of the incident with the police.” [close quote] By the time of his death, that stress included the officers attempt to handcuff him, Ivy’s attempt to flee, a chase, subduing Ivy with handcuffs, leg restraints, a police baton and several taser strikes.
Clearly before the stress killed him, the stress led Ivy to do some things that were unwise, that I as an attorney would have advised against had I been able to reach him. But people doing stupid things under stress is a fact of being human. Interestingly, at one point, one of the officers told Dontay they were going to detain him because he couldn’t follow the officer’s instructions to keep his hands up, adding [quote] “You’re making me a bit nervous.” [close quote]
It’s striking how ordinary all this is – Dontay’s behavior before the police stopped him; his obvious fear of the police and what they were doing is also ordinary, especially in the Black community; the officers’ fear that Ivy had a gun, even though based on a string of inferences from very ordinary behavior, and fear about a possession which, under recent U.S. Supreme Court cases, would arguably have been within his rights.
But from all those very ordinary facts, a man is dead and the D.A., the grand jury, the police chief and the Mayor all apparently find no one blameworthy. What it means is that for [quote] “walking while Black,” [close quote] a man needs the savvy of a criminal defense lawyer and the courage to deal with stressful situations by focusing on how scared the police are because of the color of his skin.
— A shorter version of this commentary was broadcast on WAMC Northeast Report, March 1, 2016.
Constitutionalism and Democracy 