District Attorney David Soares’ letter to Mayor Sheehan describes some of what led to the death of Donald (Dontay) Ivy.
Soares describes Dontay’s first encounter with police that night. Officers “approached … [Dontay Ivy] sitting on the steps of a property in the South End … in an attempt to learn if he was trespassing.” Satisfied he was’t, they left. If you’ve rested on the steps of a building, you weren’t trespassing and neither was Dontay unless the owner or tenant objected or blocked access. For the police, the mere fact an African-American man sat on some steps justified questioning him.
Later, Dontay walked on Lark Street. Soares noted that it was 26 degrees. But the officers’ became concerned because he wore a winter coat, “a ‘puffer’ coat,” was “walking heavily on his left arm” and “appeared to be bunching up his left hand into his sleeve.” I’ve done that, sometimes to shelter something from the weather, sometimes because one hand hadn’t been as active or something restricted its circulation.
According to Soares, one officer said “the way he was walking didn’t seem right.” A crick, a cramp, or a little arthritis? I can imagine someone asking if I was OK. But the officers asked to see Dontay’s hands and wanted to know where he was going. That’s not in my experience. Yours?
Apparently because of his loose winter coat, one of the officers “was under the impression that Mr. Ivy might have had a weapon, or possibly drugs.” He didn’t. That inference could be drawn about most of us sometimes, but police don’t, not if we have white skin and decent clothes.
The report continues that one officer “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.” If every plastic bag near me when I’m out walking needed an explanation, neither police nor I would have time for anything else. Plastic bag stories are such common justifications that they generate enormous skepticism in the criminal process. The bag near Ivy was empty.
After further questioning, they decided to pat Dontay down. The police said he consented, but reacted to their touching by pulling his hands down. Soares wrote, “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.” Mr. Ivy was under medication for his illness. Many African-Americans don’t like to be touched even in generally unexceptionable ways.
Obviously things got worse. Soares summarized the findings of the medical examiner, “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.” That stress included the attempt to handcuff him, Ivy’s attempt to flee, a chase, subduing Dontay with handcuffs, leg restraints, a police baton and several taser strikes.
Ivy made some mistakes. But people do stupid things under stress. Interestingly, when one of the officers told Dontay they were detaining him, he added “You’re making me a bit nervous.”
Dontay’s behavior before he was stopped; his fear of police, their behavior, the officers’ fear that Dontay was armed, whether or not he had that right, and though based on a string of inferences from ordinary behavior, were all strikingly ordinary.
From all those very ordinary facts, a man is dead and the D.A., the grand jury, the police chief and the Mayor find no one blameworthy. But for what’s called “walking while Black,” a man needs the savvy of a skilled lawyer and the courage to deal with stress by focusing on how scared the police are of his own dark skin.
Steve Gottlieb is Jay and Ruth Caplan Distinguished Professor of Law at Albany Law School and author of Unfit for Democracy: The Roberts Court and the Breakdown of American Politics. He has served on the Board of the New York Civil Liberties Union, and in the US Peace Corps in Iran.
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