Do We Need to Warn or Not?
The Issue is what duty do we have as a law enforcement agency after we used tear gas in a structure to clean up the residual agent? The answer was clear just a few months ago. If we were reasonable in our use of the agent we had no duty to clean up the agent and/or warn the owners or residents of a potential danger of residual chemical agent.
In June of 2011 a court in Mississippi held a police agency and the chemical manufacturing company liable for the death of a person that was exposed to residual chemical agents in a house even after the agency did a quick clean up by aerating the structure. We all probably have different ideas as to the validity of the judgment. However, we all must pay attention to it because every plaintiff’s attorney will be looking for a similar judgment no matter what judicial district they are in.
Telephone calls were made to Combined Tactical Systems (CTS) -the chemical agent manufacturer- and Jackson Police Department and got more information on what happened in the case. The short version is that Ms. White, the plaintiff and her family hadn’t lived in the house for at least a couple of months prior to this incident. The house was abandoned and had become a hangout for gang members. Jackson PD was chasing three suspects who ended up going into Ms. White’s abandoned house and hiding from the police in the attic.
Jackson PD SWAT responded and put a very light dose (they didn’t calculate any LCT50) of chemical agents in the house. After the suspects were out, Jackson PD had the fire department use smoke evacuation fans to air out the house (as we typically do when law enforcement uses chemical agents). The SWAT commander talked to Ms. White that night and told her chemical agents had been used and to stay out of the house for a while (this was not documented in the reports).
Ms. White had a lot of medical problems and had been hospitalized for respiratory problems prior to this incident. One or two days after the SWAT incident, White and her family returned to the house to board up a window broken by SWAT firing chemical agent ferret rounds through it. They boarded up the window and she did not move back into the house. Ten days later, White had a stroke, was hospitalized, and died 10 days after that.
The claim was that White suffered a stroke due to respiratory distress from the chemical agents (a claim the emergency room doctor who treated her said was not true). Jackson PD saw who the judge assigned to the case was and knowing his history settled the case as soon as possible for $15,000.00.
CTS knew the death was not caused by the chemical agents and thought it was a slam dunk in their favor. According to a CTS representative, a problem in the case was that there was no documentation of the decontamination done on White’s house (calling the fire department to vent it with fans). This was a judge only (no jury) trial and the judge decided in favor of White’s estate.
The judge found that;
“Plaintiff has shown by a preponderance of the evidence that Combined Systems, Inc.’s negligence and breach of warranties in connection with Ms. White’s exposure to OC powder and CS gas, proximately caused the death of Linda White.
The Plaintiff has shown, by a preponderance of the evidence, that Combined Systems, Inc. breached the following warranties: strict liability, breach of express warranty, breach of implied warranty, by selling these products as “non-lethal” or “less-than-Lethal” with full knowledge that these products could cause death.
The Plaintiff has also shown by a preponderance of the evidence that Combined Systems, Inc.’s negligence in failing to warn the City of Jackson Police Department and/or Linda White regarding the lethal nature of the OC powder and CS gas used, the potential to cause death or injury for those with pre-existing conditions, and the inadequate warnings and/or training given to the City of Jackson regarding decontamination of structures and continuous exposure. Defendant’s argument that the Jackson Police Department was a learned intermediary fails in light of their failure to adequately warn.”
The case was in the First Judicial District of Hinds County Mississippi; Civil Action No.: 251-07-361 CIV; Dyanne Lewis, on behalf of the wrongful Death Beneficiaries of Linda White VS. Combined Tactical Systems.
The opinion of an attorney employed by a law enforcement agency is that we are not bound by a 1) a trial court decision and 2) a decision from another jurisdiction. That said; we can always learn best practices.
“This case was essentially a products liability case coupled with a failure to warn component. The question on whether “we should be providing written notice” is a good one. My answer would be yes. Not because we are required to, but because it is great preventative action. In the unlikely event that we get sued for something similar, it is always good to know that we can establish that we put the home occupants on notice of the type and potential health effects of returning to a home where chemical agents were used.”
So, what should we be doing?
• Continue to do a hot wash (aerate building using Fire Department) as soon as safe
o The first step in decontamination of a structure contaminated with CS is aeration. The object of which is to remove all airborne particles of chemical agent. Open all doors and windows and attempt to create air flow throughout the structure. Fans should be used. Fire department smoke ejector fans are ideal for this procedure. A Sacramento (CA) Police Department study conducted in August of 1988 recommended continuous aeration for one to two hours. Obviously, this time frame can vary depending upon the amount of agent used and the type of contaminated structure. The building should then be closed and heated for approximately one hour to help vaporize any remaining agent. The structure can then be opened and ventilated again for another hour or until the exhausted air is free of contamination. The sooner aeration is started after deployment the more effective it will be.
• Remove all expended and unexpended chemical agent devices
• Leave warning letter on entrance to building (see example)
• Document what we have done
• Make sure we teach decontamination in all chemical agent training classes
• Have a team member designated as chemical agent expert
• Set up protocol for communications center if you adopt example letter (see example)