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In-custody death ruled homicide brought on by respiratory ailment

Wardel Davis' death during an in-custody struggle with Buffalo police in February has been ruled a homicide by the Erie County medical examiner, two sources close to the case confirmed Friday.

An autopsy showed the 20-year-old man's death was brought on by his respiratory ailment, the sources said.

Officers Todd C. McAlister and Nicholas J. Parisi stopped Davis on the night of Feb. 7 after they spotted him leaving a known drug house on the West Side.

He tried to flee from them on Hoyt Street, leading to a physical encounter. At some point, Davis stopped breathing during the struggle, according to the police account of what happened.

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The autopsy results have been sent to the New York State Attorney General's Office, which is conducting an independent investigation into the death.

“Our hearts go out to Mr. Davis' family. We are committed to conducting a full, fair and comprehensive independent investigation, which is still ongoing at this time,” said Amy Spitalnick, a spokeswoman for the Attorney General's Office.

The spokesperson said the office would not comment further until its investigation is completed.


Attorney Steven M. Cohen, who represents Davis' fiancee Jashalyn Washington, expressed shock over reports that the autopsy was complete and had been released.

"I want to know why the police and their attorney were able to get this report before the family got it. Were the police then able to influence this report in some way?" Cohen said.

The lawyer also said he has been told by witnesses from the Hoyt Street confrontation that there was an extended delay in getting medical attention for Davis, following the confrontation.

"What I am hearing is that he was detained and handcuffed at the scene for 40 minutes. We heard that the police would not let him use his puffer," Cohen said, of the asthma inhaler medication Davis used. "Neighbors were yelling 'Get him to the hospital.' After his heart had stopped beating, he was rushed to the hospital with lights and sirens blaring."

Thomas H. Burton, the attorney representing McAlister, said the medical examiner's findings show "there was no criminal behavior by these two officers."

The medical examiner found "an overlay of acute bronchitis and severe asthma triggered during the struggle with the two officers," Burton said. "There was no way either one of them could know the person they were trying to arrest suffered from hidden but nonetheless serious medical problems."

A forensic determination of "homicide" does not equal murder, Burton said.

"There's a fundamental difference between the strict, forensic definition of a homicide -- a death with the involvement of another human being -- versus a penal law homicide where there is wrongful or evil intent," Burton said. "Those two terms are different depending on the context."

Burton has maintained that the officers, as soon as they noticed Davis had stopped breathing, uncuffed him and immediately began trying to revive him with CPR.

Joseph M. LaTona, who is Parisi's attorney, said he strongly disagrees with Cohen's remarks about the incident.

"The officers did nothing wrong and unfortunately for this young man, his pre-existing conditions caused his demise," LaTona said Friday evening. He said Cohen's description of what happened is, in his view, "totally incorrect."

"Absolutely not," LaTona said, when asked about Cohen's claim that there was a 40-minute delay in medical help. "When they realized this young man was in distress, the officers immediately took off his cuffs and began giving him CPR. The only thing they did was try to help this young man."

Law enforcement sources say they do not know how the medical examiner's ruling will affect the state's investigation.

Under a 2015 executive order issued by Gov. Andrew M. Cuomo, the attorney general investigates cases of civilian deaths involving police.

Davis' fiancee previously said he was not feeling well that night and had planned to go the hospital. She said he had asthma but did not appear gravely ill.

Davis exchanged text messages with a friend a half-hour before his fatal encounter with the two Buffalo officers, The Buffalo News previously reported.

The text message exchange, in which Davis informed his friend that he was having trouble breathing, also is part of the state's  investigation into Davis’ death, a source told The Buffalo News.

The medical examiner's ruling deals with the medical aspects of Davis' death. The state investigation focuses on whether the police officers committed a crime.

In a statement released by a spokesman on Friday evening, Mayor Byron W. Brown said this of the situation:

"I am aware of media reports that the Erie County Medical Examiner has found that this tragedy was brought on by a pre-existing medical condition. However, I have not seen any official reports -- which is appropriate -- because in this case the New York State Attorney General is responsible for completing a thorough and independent investigation. My thoughts and prayers continue to be with Mr. Davis's family and all of those who have been impacted by this tragedy."

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