In a letter sent to Sheriff William Kolender in February, the District Attorney’s Office concluded that law enforcement involved in the apprehension and restraint of Vanessa Facen – a male-to-female transgender person who died while in custody of the sheriff’s department – acted “reasonably under the circumstances” and “bear no criminal liability for their actions.”

“This is a decision not to prosecute people criminally being made by somebody who probably has lunch with the sheriff once a week,” said attorney John Burk, representing Facen’s mother, Diane, who filed suit Nov. 20 of last year against the San Diego County Sheriff’s Department for the wrongful death of her daughter while in the custody of law enforcement. “DAs never prosecute anybody for police misconduct unless there is some political situation that absolutely forces them to do it,” Burk said.

Facen, 35, was pronounced dead Nov. 21, 2005, four days after a melee with sheriff’s deputies at the downtown jail. Cause of death was ruled an accident.

Burk said he believes the wrongdoing began with Grossmont Hospital’s decision to clear Facen for booking.

“We think the wrongful conduct started with the decision to take her to a men’s jail in that condition rather than book her into a psychiatric hospital when she got to Grossmont Hospital,” he said. “And then you add to that the fact that [sheriff deputies] put her face down on a gurney, got on her back and started suffocating her with a sheet, and then she died of asphyxiation.”

San Diego County deputy medical examiner Christopher Swalwell, who performed Facen’s autopsy, said Facen died of a cardiopulmonary arrest during prone restraint for aggressive and psychotic behavior. Her toxicology report revealed only trace amounts of cannabinoids.

Burk said the defendants are still civically liable even if they are not criminally liable. 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.

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, 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.

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 damage to her brain was irreparable, and she was later pronounced dead.

The District Attorney’s Office would not comment on its investigation and conclusion.

With files from former GLT reporter Carlos Marquez, who wrote the GLT’s Dec. 7, ’06 story “Death of transgender person in sheriff’s custody sparks lawsuit.”