Jail deputies said the inmate was yelling and moving around even after they strapped him face down to a stretcher with a spit mask knotted around his neck and a pillowcase over his head. They said he continued to resist as nine deputies escorted the stretcher to an ambulance summoned to the Erie County Holding Center.
Jail video obtained by The Buffalo News doesn’t back them up. The video shows that Richard A. Metcalf Jr. lay completely still during the 136-second procession from the jail’s medical unit to an elevator, down a hallway and finally out the door — as two ambulance medics described.
Metcalf, the video shows, couldn’t have moved if he’d wanted to. He was strapped in tightly and bound at the hands and legs.
When investigators for a state agency watched it to reconcile the contradictions between jail deputies versus the EMTs, they believed the EMTs.
But the sequence of images is more than a clue in a legal matter. It shows a man’s life coming to an end at around 10:54 p.m. on Nov. 28, 2012.
With Metcalf’s head under two layers of fabric, his face aimed downward and his limbs held fast, he could not breathe and his body shut down.
The EMTs might have been able to save him, says Thomas J. Casey, a lawyer for Metcalf’s father. But they had been kept in the dark about the knots around his neck and blocked from examining their patient because the deputies considered him dangerous.
Metcalf earlier had fought the jail guards, spit blood and hurt himself as well. The deputies and their lawyers contend the constraints were justified.
Out in the ambulance, the EMTs were finally able to strip off the pillowcase, cut the string around Metcalf’s neck and free him from the mask.
They found the bloated head and cherry-red face of a man with no pulse and no respiration. Ruptured capillaries under his cheeks suggested he had been straining for air.
At the hospital, doctors found no brain activity. Two days later, life-support machinery was set aside and Metcalf — a store clerk with mental problems — was pronounced dead at 35.
Charges still possible
It was an especially bad time for the Holding Center to deal with an inmate’s death.
In Buffalo that day was one of the court-appointed monitors assuring that Sheriff Timothy B. Howard’s Jail Management Division complied with a months-old order that settled a sweeping civil rights case filed by the U.S. Justice Department.
Their initial communications with the Commission of Correction, which investigates in-custody deaths, did not mention the spit mask or the pillowcase used on Metcalf. The jail’s top echelon told the state agency that Metcalf died of a heart attack — as the county medical examiner soon determined — on his way to the hospital.
Last October, almost four years after the death, the Commission of Correction publicly revealed a different conclusion: Metcalf was needlessly asphyxiated, the agency said. It urged the district attorney to begin a criminal investigation and the Justice Department to again examine the Sheriff’s Office for civil rights violations.
Wheels are turning on two legal fronts:
• New Erie County District Attorney John J. Flynn Jr. repeated recently that the matter will be investigated to determine if charges should be lodged, as he promised during last year’s campaign. Then-District Attorney Frank A. Sedita III charged no one after a State Police investigation concluded in 2013. But Flynn asked a judge to appoint a special prosecutor, because his office employs a relative of one of the sergeants whose actions will be investigated, Robert Dee. The judge will consider the request Wednesday.
• Erie County attorneys have agreed that Dee and another sergeant named as a defendant in the lawsuit, Matthew Cross, each deserve their own lawyers, a sign that their interests have diverged from those of the seven other deputies named in the civil matter.
Cross said in an internal document that he “assisted in loosely securing” the spit mask. As for Dee, the state commission says he failed to supervise the use of force on Metcalf, whose body contained bruises, welts and broken ribs when it was placed before the medical examiner more than four years ago.
Though the medical examiner said a heart attack killed the inmate, she also noted the toll on his body from the injuries and the stress of incarceration. Dr. Dianne R. Vertes ruled the case a homicide, a death at the hands of others.
Through a lawyer working for the county, the sheriff said he supports the jail staff involved and intends to “vigorously defend” their actions. The lawyer, Jennifer C. Persico, pointed out that after state police conducted a six-week investigation, Sedita found the evidence did not support criminal charges, as the state police had concluded.
‘Head looked like a cherry’
Six months after Metcalf died, State police took statements from the Rural/Metro EMTs, including Robert M. Moleski.
Moleski first saw the patient when he was in the jail’s medical unit. Metcalf lay face down on an examining table, his feet shackled and his hands cuffed behind his back. The inmate was not resisting, Moleski said. Grunts emanated from under the pillowcase, “so I knew he was alive,” he said.
Both he and EMT Michelle Joseph said they asked that Metcalf be placed on the stretcher face up, for health reasons.
Jail deputies told both that he would remain face down, for safety reasons, they said.
Deputies also prevented Moleski and Joseph from placing themselves near the patient’s head.
“As we came off the elevator,” Moleski recalled, “one of the guards asked if the patient was sleeping because he wasn’t making any noise and wasn’t moving.”
Moleski had no answer for the deputy.
“I just wanted to keep moving to the ambulance,” he said.
Once inside the ambulance, Moleski pulled off the pillowcase and realized there was another cover over the patient’s face and tied around his neck — the spit mask.
“It was tied pretty tight and was knotted more than once, maybe three or four times,” Moleski told the state police.
He cut the mask off and realized the patient wasn’t breathing. Moleski felt for a pulse and couldn’t find one.
He yelled to EMT Joseph. She couldn’t find a pulse either.
They needed to start CPR.
A clutch of jail deputies lingered at the back of the ambulance, waiting for the deputy who had been selected to ride inside on the trip to Erie County Medical Center.
Moleski got the key that would unlock the handcuffs but couldn’t get it to work.
“Someone get up here and help me get these off him,” he yelled.
A deputy jumped in to free Metcalf’s hands, and Moleski turned Metcalf onto his back.
“His head looked like a cherry,” Moleski said.
With Metcalf completely limp, Moleski started cutting off the inmate’s shirt. Joseph, meanwhile, leapt into the driver’s seat and shouted to the deputies to decide quickly which of them was riding along.
“We have to go now,” she said.
Metcalf’s behavior, as documented by the Commission of Correction, probably would have challenged many jails.
He arrived at the Holding Center around 3:30 p.m. Nov. 27, 2012, after breaking into a Depew catering company to cool off in its refrigerator on an already cold day. He charged at the Depew police officer who came to arrest him and was hit twice with a Taser. In the Depew police lockup, Metcalf smeared feces on himself and on the walls. Metcalf would later report that he was a regular marijuana user and had smoked before the break-in.
At the Holding Center, deputies ushered Metcalf, who had scrapes near his right eye and a bruise above the left, into a shower to clean off the feces. But an altercation occurred, the commission learned. A nurse who examined him noted he was confused and paranoid. He soon was being assessed at ECMC because of his behavior and his assorted injuries.
Back at the Holding Center, Metcalf asked to be locked into his cell.
On the evening of Nov. 28, 2012, he was reportedly saying he was “radioactive,” repeating the words “slaughter house” and, according to jail personnel, raking his arms with a plastic fork, cutting himself open. He was biting his fingers and banging his head on the floor and the walls, deputies reported.
A team of deputies extracted him from his cell, cuffed his hands behind his back and walked him to the medical unit, where a plan was formed to get him to ECMC’s psychiatric emergency room. Deputies said he resisted and spit blood in many directions. Photos of the examination room show cabinet doors spattered with blood.
The Commission of Correction faulted jail officials for not resorting to chemical sedatives. But a lawyer for the county said any inmate must be physically examined before drugs are used, and the nurse couldn’t get close to Metcalf because he was acting so wildly.
A spit mask was applied, even though its maker says it’s not to be used with inmates bleeding from the mouth because they might already have trouble breathing. It also is for use when placing inmates in a restraint chair, not face down on a stretcher, the state agency said.
In short order, Metcalf chewed through the paper-thin mask, but its strings remained around his neck.
Someone retrieved a pillowcase. That went over his head, though jail rules prohibit use of any hood that can hinder breathing.
The team of deputies then stood by for the ambulance that was to take Metcalf to ECMC.
‘Kicking and yelling’
Jail deputies who are now defendants in the wrongful death lawsuit gave accounts that clashed with the ambulance team’s as well as the action seen on the video.
Here’s what Deputy Michael Anderson told state police: “The inmate was cuffed behind his back and was still combative.”
Reported Sgt. Dee: “They escorted Metcalf down to the ambulance” and “he continued to resist during the escort.”
Deputy Robert States: “Metcalf was kicking and yelling the whole time.”
Who placed Metcalf face down on the gurney?
The EMTs said it was the deputies. Some deputies said the opposite.
Defendant Edward Kawalek: “The EMTs ... said to leave Metcalf face down on the stretcher because it was brought to their attention that he was being combative and spitting blood everywhere, including on deputies.”
Said Sgt. Cross: “Per EMTs request they assisted with placing Metcalf face down on the gurney.” The EMTs, Cross continued, asked that “the pillowcase be left on Metcalf’s head.”
But Cross contradicted what others said about Metcalf’s combativeness: “Once Metcalf was placed onto the gurney, he appeared to have stopped resisting.”
The Commission of Correction acknowledged the conflicting accounts. But after the state officials watched the video, they said in their report that they believe the EMTs.
What happened to him?
EMTs Moleski and Joseph had been called to the jail to take someone to ECMC for psychiatric reasons, not the serious, life-threatening medical emergency that came about when jail deputies wrestled Metcalf onto an examination table.
The two were EMTs, not paramedics certified to provide advanced life-support. They weren’t authorized to intubate a patient nor start an intravenous line, measures that Moleski said he knew the patient needed.
Faced with a patient in cardiac arrest, the two ditched the plan to go to ECMC and headed to the nearest hospital, Buffalo General.
As the ambulance raced through the city with its lights and siren blaring, Moleski pressed the jail deputy riding with the ambulance for more information about what had happened to the inmate. Moleski would need to relay as much as he could to the doctors at Buffalo General.
The deputy, who was helping operate a device that forced air into Metcalf’s lungs, had little to offer. He had been working on one of the Holding Center’s upper floors and had no role in subduing Metcalf.
“I think he just got picked to go with us,” Moleski said of the deputy. “It didn’t seem like he knew what took place.”
The deputy said he had learned the inmate had banged his head repeatedly against hard surfaces. But EMT Joseph noted in her statement that Metcalf had an array of bruises on his abdomen, chest and back.
To Moleski, this was no longer a transport for a psychotic inmate. Nor did he consider it a heart attack.
He said he told the deputy the matter would be treated as a hanging or strangulation.
Moleski said of the deputy: “He seemed to be in a state of shock.”