June 14, 2008

Zimmerman Family Sues Dane County, Dispatcher

By Ed Treleven, The Wisconsin State Journal

Jun. 14--The parents of slain UW-Madison student Brittany Zimmermann sued Dane County and a 911 dispatcher in federal court Friday, alleging that failures by the county and the dispatcher led to her murder April 2 in her Downtown apartment at the hands of an intruder.

Kevin and Jean Zimmermann, of Marshfield, allege that dispatcher Rita Gahagan received enough information during the 90-second call to dispatch police and rescue personnel to their daughter's apartment on West Doty Street but instead hung up on the 21-year-old student when she heard nobody talking.

That disregarded rules created by the Madison Police Department and the 911 Center for calls like Zimmermann's, according to the lawsuit, filed in U.S. District Court in Madison.

That conduct, the lawsuit states, "caused severe and grievous emotional distress to Brittany Zimmermann by causing her to realize that her call for help while she was being attacked by an intruder would not be responded to by public authorities."

It alleges that Gahagan's acts deprived Zimmermann of her rights to life and liberty and the right to be free from emotional distress guaranteed by the Fifth Amendment and 14th Amendment of the U.S. Constitution and ultimately caused her death.

The lawsuit alleges that Gahagan was able to identify Zimmermann's name, her cell phone number and her location at 517 W. Doty St., an area the lawsuit describes as being known by law enforcement personnel as frequented by "vagrants, panhandlers, drug users and criminals."

The source of that assertion was not provided in the lawsuit. Robert L. Elliott, the Milwaukee attorney representing the Zimmermann family, was not available for comment Friday.

Communication experts have said that the ability of a 911 center to pinpoint the location of a cell phone call varies depending upon the wireless company. Dane County uses technology that allows it to find the location of a call using GPS, but the exact coordinates can be off by more than 100 meters or about 109 yards.

In this case, county officials have said, the dispatcher was able to see the location of the cell tower handling the call and then pinpoint it to the apartment building next to Zimmermann's.

Union representatives have said that Gahagan did not end the call and county officials have said they cannot determine how the call ended.

Top officials from the 911 center could not be reached for comment Friday. Joshua Wescott, spokesman for Dane County Executive Kathleen Falk, said the county had not received the lawsuit and said that county attorneys would be handling it.

Falk has previously said that the 911 center mishandled the call.

"It is not useful to armchair quarterback after a tragedy," Falk said on May 6, "but knowing what we know now about that call, the dispatcher made a mistake."

Gahagan, who transferred out of the 911 center shortly after the April 2 incident, also could not be reached for comment.

The lawsuit demands unspecified compensatory damages and costs.

The lawsuit also accuses Dane County of underfunding the 911 center, undertraining its staff and failing to follow the recommendations of a 2004 consultant's report that said staff increases and changes in procedures were needed at the center and claims that those deficiencies directly led to Zimmermann's death.

Those procedures, the lawsuit states, require a 911 operator who does not hear anyone on the line to leave the line open and dispatch police to the location of the call. The same holds true for unintelligible or disconnected calls from cell phones, the lawsuit states. If an operator calls back to a disconnected 911 call and cannot get an answer, police are to be sent to the location of the call.

County officials have insisted they followed many of the recommendations of the 2004 report as part of a five- to 10-year plan. Robert Kaelin, the Seattle-based consultant, contradicted that assertion, saying a recommendation to add eight staff should have been implemented immediately. Six positions were added before April 2.

Kaelin also said data provided last week by the county showed the 911 center was adequately handling its call volume. In the first five months of this year, 4 percent of calls were abandoned and less than 5 percent of calls took more than 20 seconds to answer, which Kaelin said is "what I would expect from this sized regional, multidiscipline center." The 911 center had not analyzed the data until after the Zimmermann incident, despite having the ability to do so for the last two years.

The lawsuit asserts that Zimmermann's call to Gahagan "would lead any Dane County 911 Communications Center Operator to reasonably believe that police services were needed."

Again, there is no indication in the lawsuit about the source of that information. Those who have heard the call have said that they heard a faint background noise, like a soft rustling.

The lawsuit also attempts to head off an anticipated "qualified immunity" defense by Gahagan by claiming that she acted "outside any discretionary authority to act."

Qualified immunity holds that a public employee who is doing a job that requires some discretion and doesn't violate the law is immune from claims of federal civil rights violations.

"We want our governmental workers to do things that require discretion, not to have to sit there and worry about being sued," said Michael Modl, a Madison lawyer who specializes, in part, in defense of constitutional claims.

It's generally not the plaintiff's burden to show that a government worker doesn't have qualified immunity, he said. Instead, it's up to the defense to show that immunity is warranted.


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