Thomas MacMillan Photo
Emma Jones emerges from court Wednesday.
As three federal judges weighed the death of Malik Jones at the hands of an East Haven cop, they zeroed in on the significance of shots fired at another young black man, six years earlier, by the same cop.
The judges, John Walker, Rosemary Pooler, and Pierre Leval of the Second Circuit U.S. Court of Appeals, heard oral arguments Wednesday in New York City in an appeal to the case of Emma Jones v. Town of East Haven.
Jones is the mother of New Havener Malik Jones, who was killed at age 21 by former East Haven police Officer Robert Flodquist following a car chase from East Haven to New Haven on April 14, 1997. The case became a cause celebre for civil-rights activists, led to the creation of a statewide racial profiling law, and sparked years of painful urban-suburban soul-searching and contention.
After her son’s death, Emma Jones sued the town of East Haven. She argued that her son’s wrongful death was part of a pattern of discriminatory and unlawful behavior by East Haven cops. An initial verdict that awarded Jones $2.5 million was tossed out due to a technical error. In 2010, a jury awarded Jones $900,000.
The town of East Haven appealed the decision, leading to Wednesday’s hearing, at which judges heard oral arguments but did not make a decision.
A decision could take weeks or months. At stake is whether Jones will secure the $900,000 award, and maybe even be awarded more, or whether it will be taken away from her.
After the 1997 shooting, Officer Flodquist said that Jones gave him a “Go to Hell” look, and the car Jones was driving may have been slowly rolling backwards at the time of the shooting, so he thought his life was at risk. Jones was unarmed.
It was the second time Flodquist had shot at an unarmed 21-year-old black man following a car chase that ended in New Haven. The first time, six years earlier, Flodquist shot at a man named Shane Gray, but missed. (Subsequent to the Malik Jones shooting, East Haven promoted Flodquist to the position of department spokesman, a job he held until his retirement.)
Wednesday’s hearing hinged on the potential racial significance of that incident, as a possible precursor to the Jones shooting that East Haven officials may have ignored.
The hearing was the latest chapter in a nearly 15-year-old battle between a grieving mother and an embattled East Haven police department. The same department has recently been found by the Department of Justice to have engaged in a longstanding practice of racial discrimination and, more recently, open defiance of federal civil-rights investigators.
Who Knew What, When?
The crux of East Haven’s appeal is a challenge to Jones’ “Monell claim,” which sought to prove that the town had ignored a pattern of police policies and practices prejudicial to African-Americans.
To back up that claim, Jones’ attorney, David Rosen, cited in court Wednesday a several incidents of alleged discriminatory behavior by the East Haven police department.
East Haven, represented by New Haven attorney Nancy Fitzpatrick Myers, countered that most of those incidents occurred after the shooting of Malik Jones in 1997. They can’t therefore be used as evidence that the police chief ignored a pattern of behavior that led to the shooting, she argued.
At 12 p.m. in the large marble-and-wood-lined ninth-floor courtroom on Pearl Street in Manhattan, Myers stepped to a podium in the center of the room and began to make that argument. Judge Walker quickly interrupted, however, and did most of the work for her.
“As I understand it,” a Monell claim has to establish a “pattern or practice” of discrimination that the city understands but ignores, Walker said. “That immediately in my mind seems to cut the evidence down” to only allegations of discriminatory incidents that occurred prior to the 1997 shooting, he said.
That leaves, then, only two incidents cited as evidence by Rosen, Walker said. One is the so-called “Donald Jackman incident,” which occurred a year before the Jones shooting. In that case, several East Haven cops allegedly severely beat a white man named Jackman. One of the officers allegedly put his gun to Jackman’s head and said, “You’re lucky you’re not a nigger because you’d be fucking dead.”
Walker dismissed this as evidence supporting the Monell claim, because the incident was never investigated by higher-level officers. It’s therefore not evidence that higher-ups were ignoring a pattern of prejudicial behavior, he said.
That leaves only “the Shane Gray shooting” as pre-Jones shooting evidence offered by Rosen. “It’s basically a pattern of one,” Walker said.
Black, White, Gray
In that case, six years before Officer Flodquist shot Jones, he shot another unarmed black man, Shane Gray. In September, 1991, Flodquist had heard a report of a carjacking by three black men on Rt. 80 in New Haven. Flodquist crossed the town border and chased the car, driven by Gray. When Gray fled on foot, Flodquist shot at him twice, missing both times. Flodquist later claimed he thought Gray had a gun.
Gray later testified during the trial against East Haven during case against the town brought by Emma Jones.
The Shane Gray incident was not investigated for allegations of racial discrimination or excessive force, Myers told the judges. Like the Jackman incident, it therefore should not be used as evidence that higher-ups should have known about problems of prejudice, she said.
Even if the court were to consider the evidence of race-based discrimination Rosen cites after Jones’ death, it’s only “a tiny smattering” over years, said Judge Leval. And there’s “no indication” of official approval in any of them, he said.
Judge Pooler raised the Jackman incident again. Myers acknowledged that the cop involved had made an “inappropriate comment,” but “there were no policy-makers there, so it doesn’t show that the city was aware of and ignoring racist behavior prior to the Jones shooting, she said.
“It doesn’t go up the chain,” she said.
Thread To Sew A Button
Jones and Rosen outside court Wednesday..
As with Myers’s remarks, Rosen’s argument was quickly interrupted by Judge Walker. Rosen began to raise the fact that the East Haven police department at the time of Jones’ death had T‑shirts for its softball team that said depicted two officers cuffing caricatures of gang members face down on the front of a cruiser, accompanied by the text: “Boyz On Tha Hood.”
“That was afterwards,” Walker said. The existence of the T‑shirts came to light and was acknowledged by the police chief, James Criscuolo, after Jones’ death.
After Walker laid into Rosen about the lack of pre-shooting evidence of discrimination practices in East Haven, Judge Pooler stepped in with a lifeline. She asked: Shouldn’t the shots fired at Gray, an unarmed black man, have triggered an investigation by itself, given that it had potentially “catastrophic consequences” had Gray been killed?
“This was one shooting. Do you want to wait for a second?” she asked.
Pooler’s thrown you “a life ring,” Walker said to Rosen.
Rosen took it. The Gray shooting could be seen “through a racist lens,” he said. “The incident itself portends catastrophe.”
But Leval questioned why he should believe that the Gray incident “reeks of bias.” The cops were chasing a car that had been reported stolen at gunpoint. They had every reason to believe Gray was armed when he jumped out of the car and ran, Leval said.
The officer testified falsely that he thought Gray had a gun, Rosen responded; that was his justification for shooting him. The chief should have done an investigation and made sure that his officers knew that the shooting of a black suspect would be treated just the same as the shooting of a white one, he said.
“How do we know they were [treated] different?” Walker asked. If cops had heard a report that three white guys had stolen a car at gunpoint the day before the Gray incident and ignored the call, then you’d have some evidence, he told Rosen.
Rosen’s evidence doesn’t connect the way he wants it to, Leval told him. “You’re trying to bring in a thread to sew a button. It isn’t up to the job.”
“We’ll reserve decision,” said Judge Pooler, ending the hearing.
Afterward, Emma Jones said the litigation process continues to be very difficult for her.
“This has been a very long, painful and rigorous struggle,” she said. “I’m still looking forward to justice. I would hope that it would come very soon.”