The United States Department of Justice warns that hogtying could kill inmates, but Harris County jailers did it anyway. It lead to the death of 38 year old Kenneth Lucas on February 17, 2014. Those are the allegations in a federal civil rights lawsuit now filed against Harris County, and 7 employees of the Harris County Sheriff's Department.
The case was reviewed by a Harris County grand jury that found no criminal wrongdoing, but attorneys for Lucas's family say that doesn't mean officers did nothing wrong.
"What they did was wrong, excessive, and unnecessary," said attorney Jeff Edwards, announcing the Tuesday morning filing of the lawsuit. The family is now seeking unspecified damages on behalf of Lucas's four children ages 16, 15, 3, and 2.
The youngest still have not been told their father passed away.
"Still to this day. I mean, we go places and they see other children, and they say 'Mom where's Dad?" said Cassandra Salcido sitting beside her attorney. "I'm just... no response. There's nothing I can tell them. They're still little."
Lucas died during what jailers call a cell extraction. In a video recorded by the Harris County Sheriff's Department, 5 individuals can be seen marching toward Lucas's prison cell wearing riot gear.
Harris County said Lucas had been disruptive and may have been armed with a makeshift knife that he wouldn't turn over. Jailers were instructed to remove Lucas from his cell and subdue him, but within 25 minutes they were trying to resuscitate him.
Edwards says Lucas hadn't even been convicted of anything. He was jailed for keeping his 2 teenaged children longer than court ordered visitation allowed.
But Edwards says excessive force causing the death of a black man isn't why this lawsuit is unique.
"What's unique about this case is twofold. It's on video so everybody can watch and see,” Edwards says. "Secondly, the Department of Justice told them if you keep doing this, people will die."
Edwards is referring to a 24 page memorandum, dated June 4, 2009, written to Harris County Judge Ed Emmett. It details a long list of major problems at the Harris County Jail, and on page 15, addresses excessive use of force.
"We have serious concerns about the use of force at the Jail. The Jail's use of force policy is flawed in several regards," it says in the memo, signed by Loretta King, Acting Assistant Attorney General. The letter continues: "Neither written policy nor training provide staff with clear guidance on prohibited use of force practices. For example, Harris County Jail does not train staff that hogtying and choke holds are dangerous, prohibited practices."
Despite that, Harris county jailers used the hogtie position on Lucas, who was known to have hypertension, anxiety attacks and depression. At about 17 minutes into the video of the cell extraction, Lucas can be heard saying "I can't breathe." The jailers didn't let up.
"This wasn't a split second decision by these officers," Edwards says. "This was a practice condoned by the county."
In February 2015, one year later, the Harris County grand jury declined to hand down any indictments. Edwards says that doesn't clear the officers of wrongdoing.
"They have the gall to suggest that the grand jury, that is effectively under their control, somehow exonerates these officers. It does not."
The Harris County Attorney's office confirmed receipt of the lawsuit and serious allegations, but said it was under review, and could not make further comment.