The family of Vanessa Facen, a pre-operative transsexual woman who died last year in November after being apprehended for attempted burglary, is seeking recourse for their daughter’s alleged wrongful and untimely death while in the custody of law enforcement.

Diane Facen, mother of the decedent, filed suit on Nov. 20 against the county of San Diego, Sharp Grossmont Hospital, the San Diego County Sheriff’s Department and their respective employees thought to be complicit in the events preceding Facen’s death.

In the suit, alleged violations of the Fourth and Fourteenth Amendments of the Constitution are brought against the sheriff’s department. Within these allegations, Sharp Grossmont Hospital is charged with flagrant disregard for Facen’s state of mental instability, protected under the Americans with Disabilities Act, and for failing to provide adequate instructions to the deputies of the sheriff’s department accordingly.

At the time of her arrest, Facen indicated that she was recently diagnosed as HIV positive. Since Facen had no history of mental disorders, violence or erratic behavior prior to the incident, the knowledge of her diagnosis contributed to her temporary mental instability, the lawsuit stated.

Violations of the Fourth and Fourteenth Amendments are believed to have occurred in the form of excessive use of force during arrest and seizure of Facen. According to what the suit cites as “meager official reports,” Facen became combative while en route to Sharp Grossmont Hospital for treatment of the wounds incurred during her attempted burglary of a neighbor’s townhouse. In the ensuing struggle, Facen was bludgeoned with a number of blunt weapons, tazered, pepper sprayed, restrained and finally subdued. After being admitted to the Grossmont Hospital emergency room, Facen was evaluated by medical professionals on hand, including Stephen J. Shipley, M.D., at which time Facen became increasingly agitated. She was subdued once more before being discharged back to the custody of the sheriff’s deputies.

The suit characterizes the decision to discharge Facen rather than treat her mental instability as “reckless, wantonly and with deliberate indifference.” As a result, Shipley has been specifically named culpable in the lawsuit for the decision to discharge Facen, even in the face of clear and present mental instability, thereby blatantly discriminating against her mental state by releasing her to law enforcement, the suit says, which is in direct violation of the Americans with Disabilities Act.

Upon release to the authorities, Facen became combative once again as she approached the entrance to the male section of the county jail. At this time, she was forced down into prone position with obstructing sheets wrapped around her head. Shortly thereafter, she became unresponsive and was rushed to the medical intensive care unit of the UCSD Medical Center. Although she was revived, the brain damage was irreparable.

Facen was comatose for several days before her family was notified of their daughter’s condition. Facen was pronounced dead on Nov. 21, 2005, the same day her family arrived to see her. The county of San Diego and the sheriff’s department are also being sued for punitive damages for negligence and dilatory attempt to notify the family several days after Facen was rendered comatose.

San Diego Deputy Medical Examiner Christopher Swalwell, M.D., determined there was a correlation between Facen’s death and the restraint used by the sheriff’s department.

“Whether we call it an accident, or even if we call it a homicide, it doesn’t imply necessarily any wrongdoing. …There may or may not be culpability on somebody’s part. That’s a legal determination. That’s not a medical determination,” Swalwell told the Gay & Lesbian Times in April.

Given that Facen was 35 years old, had no history of heart disease and was not under the influence of cocaine or methamphetamines, Swalwell said under normal circumstances he would not expect Facen to have a cardiac or respiratory arrest.

When asked if sheets wrapped around Facen’s head could have contributed to her death, Swalwell said he could not determine if her death was caused by a cardiac arrest or a failure of the respiratory system.

“[W]e really don’t know for sure whether it’s a primary heart event or respiratory that’s the initial thing that started it,” he said. “But, obviously, once the heart stops, you’re not going to continue breathing for long, and the same thing the other way around … which is why we say cardiopulmonary because it refers to both the heart and lungs.”

Communications director for the District Attorney’s Office Paul Levikow said Facen’s death is still under investigation by the District Attorney’s Office and therefore he is unable to comment.