Lawyers want new probe into senior’s arrest
Black man pinned down outside hospital in 2018 by Durham police
Livingston and Pamelia Jeffers were dropped off by their grandson at the emergency department of Ajax Pickering Hospital the evening before Halloween two years ago. Pamelia had not been feeling well, and their housing situation was precarious.
Within hours, the older Black couple would find themselves handcuffed and held for mental health reasons, and Livingston taken down in an arrest in which police used “grossly excessive use of force,” their lawyers allege in a lawsuit filed last year. The two Durham Regional Police officers in the case have already been cleared of wrongdoing for their use of force. In March, an investigator’s report on the case concluded one officer had been justified in punching and elbowing Livingston in the head — rendering him “semi-conscious — because the now-70-year-old man had reached for the other officer’s gun; the officers erred only in not properly informing him of his rights, the report found.
On Monday, the couple’s lawyers called for a fresh investigation.
The review of Livingston’s complaint, completed by a civilian investigator with York Regional Police at the request of the Office of the Independent Police Review Director, did not investigate allegations the officer threatened and prevented witnesses from recording the arrest and did not consider a full version of events from key witnesses, lawyers Faisal Kutty and Kalim Khan said at a news conference.
In addition, the lawyers detail in a letter to the OIPRD, the investigator’s review did not examine key documents and did not consider what options, if any, the officers could have taken to de-escalate a mental health crisis.
“Leaving a hospital should not be a dangerous activity even if you are elderly, Black and are suspected of suffering from mental health issues,” wrote Khan and Kutty, an adjunct professor at Osgoode Law School, in the letter to the OIPRD, the civilian oversight body that oversees complaints against police.
The couple is not doing media interviews for this story, their lawyers said, citing an ongoing lawsuit filed last year against Durham police, the Durham Police Services Board and Lakeridge Health, the hospital’s operator.
In a statement, the Durham Regional Police Service said it could not comment on the case because of the lawsuit and the couple’s request that the OIPRD review the first investigation.
In a statement of defence filed in May, police denied all allegations made in the lawsuit and said if any damages were suffered, it was due to the “negligent and intentional misconduct” of Livingston.
In a statement, Lakeridge Health said it can’t speak about the Jeffers’ case due to patient confidentiality. The hospital network said it strives to provide “excellent patient care to all members of our community, regardless of whether they access Lakeridge Health through the emergency department, an inpatient admission or one of our community locations.”
The hospital is “committed to working with the communities we serve to promote a just and equitable environment for all members of our diverse community, including those who are most vulnerable,” read the statement.
Late last week, the couple’s lawyers provided the Star with documents and other records of the case, including the investigator’s report and findings, medical records, video footage from the hospital and a bystander, transcript of audio from a police body camera, and lawsuit documents.
Livingston’s interactions with the justice system have made headlines before: In 2008, he was convicted on charges of mischief and counselling murder for making posters that a judge found included a threat against the life of Toronto Coun. Michael Thompson. In 2012, the Ontario Court of Appeal overturned that conviction.
Livingston and Pamelia, 69, had been living in a Scarborough shelter shortly before they went to the hospital on Oct. 30, 2018. According to the medical records, Pamelia reported she had insomnia and had trouble sleeping at the shelter. She asked for a full physical and help with housing, and arrived at the hospital with luggage.
According to the first investigator’s report, a doctor believed Pamelia was acting “delusional and paranoid”; according to the medical records, she and her husband spoke of “people trying to kill us.”
After a long wait in the ER, the couple asked if they could go home and return the next day. The doctor initially agreed, and they called their grandson to come get them. According to the investigator’s report, a nurse later reassessed Pamelia and believed she should not go home.
Sometime around midnight, the couple can be seen on CCTV footage leaving the hospital with the nurse in tow. According to the report, the nurse alerted security saying that Pamelia could not leave.
At this point, the investigator’s report said, the nurse reported Livingston became “very angry,” and she became “afraid for her safety as he was yelling and very close to her.”
Two Durham police constables who had been nearby then intervened and were told Pamelia should not leave.
Meanwhile, Livingston told them all he wanted to go home.
According to the investigator’s report, an officer’s body camera captured audio of the exchange. (The video was of no use because the camera became dislodged, the report said. The couple’s lawyers have asked for the video but have not yet received it,)
“They were trying to murder us,” Livingston tells the officers.
The other officer says: “This is going to go one of two ways, now take a deep breath, take a deep breath.”
Livingston responds: “Brother, brother, we do not want to stay inside here.”
According to the report, Livingston then grabbed Pamelia by the hand and the officer “put his hand on” Livingston’s left hand, telling him: “You don’t have a choice.”
The other officer then placed a hand on his right shoulder and a struggle began in which Livingston was taken to the ground, with one of the officers on his back.
“What are you f---ing doing?” Livingston says in the transcript. “Brother, let me go.”
The other officer repeatedly tells Livingston to stop and, according to the investigator’s account, appeared to strike him in the head as the downed man yelled “murder, murder, murder.”
At some point, the first officer reported Livingston scratched him near the eyes, causing bleeding and, at the 2:40 mark of the transcript, that officer yells: “Let go of my gun.”
According to the investigator’s report, the other officer then delivered four “elbow strikes” to Livingston’s head, believing “this was a bodily harm or death situation.” Ten seconds of transcript later, that officer is heard saying “cuff him.”
According to the report, the blows left Livingston “semiconscious” and after he regained consciousness, the officer asked: “Why were you fighting us, what was going on? How much sense did that make?”
The officer then tells Livingston the outcome was “what you get for fighting us. Stand up.”
Meanwhile, Pamelia was also detained by hospital security and handcuffed on the ground.
Following the interaction, the couple was taken back inside the hospital and held on psychiatric orders for assessment.
Following Livingston’s complaint, the investigator concluded the officers’ use of force was reasonable and that there were grounds to arrest him because he had “caused a disturbance, obstructed the officers in their lawful duties, breached the peace and within seconds assaulted” one of the officers.
The investigator also dismissed a complaint of discreditable conduct against the officer who told Livingston that’s “what you get,” finding the statement was reasonable in the “heat of the moment.”
The only complaint found to be substantiated was neglect of duty, for failing to inform Livingston of his right to speak to a lawyer.
Livingston was charged with assaulting police and trying to disarm a police officer. Those charges were later dropped, the couple’s lawyers say.
In their letter to the OIPRD, the lawyers argue the oversight agency should review the investigation “in the interest of justice.” The lawyers argue bystander video of the struggle does not show evidence of Livingston reaching for the officer’s gun. They also note that of eight witnesses interviewed, only one, a hospital staff member, reported seeing the man touch the gun; the lawyers say that witness had an obstructed view.
Kutty and Khan are asking the OIPRD to “carry out a more thorough review” to assess additional documents and interview eyewitnesses they say were ordered to delete video of the struggle.
Those two witnesses were on hand for Monday’s press conference. Both said it was police who ordered them to delete the videos.
The lawyers argue the investigator’s report does not address allegations that the witnesses were directed to stop recording the incident and to delete the videos. One complied while the other managed to send the video to someone else before deleting it. Neither witness was interviewed by the investigator.
The witness’s video, which the lawyers provided to the Star, begins after Livingston has already been taken to the ground. It shows both Durham officers struggling on top of him, one of whom appears to throw a punch at the downed man.
The video ends as the struggle continues. As it cuts out, Livingston can be heard yelling “murder.”
The OIPRD has 30 days to respond to the couple’s letter and has the power conduct its own investigation.