Why did a black Baltimore grandfather die in police custody?

“I’m soooooo happy in tears.” That’s what Tawanda Jones wrote to me in a text message last month after Baltimore City State’s Attorney Marilyn Mosby announced that police officers involved in Freddie Gray’s death would be facing charges.

Jones’s brother, Tyrone West, died in Baltimore police custody nearly two years ago, on July 18, 2013. None of the officers involved were charged in the 44 year-old’s death. But both West’s family and witnesses to events of that night dispute the official narrative of what happened, and his family has been working to find a path to hold the city and Baltimore Police responsible for his death—including filing a wrongful death and excessive force lawsuit last June against the officers and Baltimore’s police commissioner. The case, a federal civil suit, is currently in discovery.

Mosby’s actions have renewed the family’s hope for criminal charges against the police present when West died — especially since the grand jury voted last month to indict all six officers involved in Gray’s death. While there is a statute of limitations in Maryland on certain misdemeanor assault charges, there is not on murder or other serious felonies. “With respect to criminal charges it’s not out of the realm of possibility for the current administration to do a thorough investigation and charge individual officers for their role in the death of Tyrone West,” said the family’s lawyer, Latoya Francis-Williams. So Mosby could bring charges against the officers even now.

It would be an uphill battle. Professor Byron Warnken at the University of Baltimore Law School told Fusion that “it is relatively rare for police officers to be charged criminally for force that they use in the line of duty.” A study out of Bowling Green State University confirms as much. According to the Baltimore Sun, only five Baltimore officers involved in civilian deaths while on duty have faced criminal prosecution in the last three decades.

Tyrone West died in custody before police-involved deaths were prominently covered by media outlets and before before the rallying cry of “black lives matter” entered into our collective conscience. If he died in the same circumstances today, his story would make headlines across the country. Two years ago, his death barely registered beyond local media.

“Tyrone was the first child in the family. He was the glue to my family. He kept everybody laughing and was involved in church and believed in God,” Tawanda Jones remembered of her brother — a father and grandfather — as she choked back tears during an interview.

“There was nothing I didn’t enjoy about my brother,” she said. “And for them to try and paint him like he was a monster and deserved what he got is more disgusting and more heinous than the crime.”

So what happened the night Tyrone West died?

“It was a beautiful summer morning,” Jones recalled of her brother’s last day. West asked to borrow her green E350 Mercedes Benz for a meeting with the housing authority and to go to work. “I felt like my car was going to keep [Tyrone] safe,” she said. “I felt so much that us killing us was happening. I didn’t know that [the car] was going to target him.”

West was pulled over at about 7:00 pm that July evening for a traffic stop in Northeast Baltimore by plain-clothed officers Jorge Bernardez-Ruiz and Nicholas Chapman, according to an independent review board’s (IRB) report of the incident released in August 2014. The board, appointed by the city’s police commissioner, does not investigate cases. Rather, its purpose was to assess how the police handled West’s death and make recommendations of where law enforcement could have done better. Still, its report is the most comprehensive public record of what happened to Tyrone West.

According to the report, police followed West and his passenger — an acquaintance named Corinthea Servance — that hot, sticky summer evening because he looked suspicious in his sister’s Mercedes Benz, “unsafely” backing down a street and driving “well below the posted speed limit.”

The officers believed, the report says, that West took notice of them and began to duck in the front seat of the car and move around in a way they interpreted as suspect —perhaps he was concealing a weapon, they thought. No weapon was ever recovered from West’s sister’s car or his person.

The police pulled him over. He complied.

According to the report, after West handed police his license and registration, he was ordered to step out of the car. Language from the report describes West’s “exceptional physical development” as reason enough for the officers to ask him to sit, as opposed to stand, on the curb. West was about 6 feet tall. He agreed to sit on the curb and have his sister’s trunk searched — a search that he didn’t have to agree to do under the 4th amendment, according to New York-based criminal defense lawyer Martin R. Stolar. (Stolar has no involvement with the case.)

The IRB report acknowledges the police had “scant probable cause or justification in this case to request consent to search the vehicle trunk for weapons.”

In a separate statement issued in December 2013 by then-State’s Attorney Gregg Bernstein, Officer Bernardez-Ruiz noticed a bulge in West’s sock and bent down to inspect for drugs. West then shoved him, according to the statement and the IRB report. West continued to resist arrest, backup was called, and shortly thereafter Tyrone West stopped breathing, state prosecutors said. He was pronounced dead at a nearby hospital at 8:11 pm. According to the autopsy, West died of a cardiac arrhythmia due to a cardiac conduction system abnormality “complicated by dehydration during police restraint.” The office of the chief medical examiner of Maryland ruled that it could not determine whether or not the death was a homicide.

West’s family maintains that Tyrone was beaten to death.

“One thing you can never get my family to understand is how 12 armed police officers stood over a healthy man and beat him to death,” said West’s aunt Diane Butler, who considered Tyrone her son. Fusion made numerous attempts to reach the Baltimore police for comment and records relevant to that night. None of the requests were fulfilled by time of publication.

An audio tape of a police interview obtained by Fusion reveals that eyewitness Ayesha Rucker told homicide detective Luis Delgado she saw a scuffle between West and officers Ruiz and Chapman, and she pulled over and got out of her car and observed the altercation.

“The first incident that I saw from the officers were [sic] that the white officer hit the victim in the side followed by the black officer doing the same,” Rucker tells Delgado. “Then the white officer sprayed the victim in the face. In reaction, [West] got up and ran diagonally across the street to the side that we were standing on, yelling for help.”

According to Rucker, the officers continued to use force. “The officers got him down again,” she said. “They started beating him with a baton and from what I saw the white officer kicked the victim in the head on his right side.” West’s autopsy noted an abrasion on his forehead.

There are conflicting accounts of what transpired in the minutes before Tyrone West stopped breathing. West family attorney Francis-Williams said her firm is in the process of obtaining a court order to get cellphone footage of the incident.

The state’s attorney’s office said West continually and violently resisted arrest — and at one point possibly even reached for an officer’s gun.

In an audiotape of a statement to Baltimore Police obtained by Fusion, eyewitness Shawanda Lewis says she also witnessed a struggle between West and the officers. “The police got him down to the ground, sprayed mace in his face and pulled his hair,” Lewis said. “At that moment they had the opportunity to arrest him and did not,” she added.

“Tyrone got up yelling ‘help me, this shit is burning my face,” Lewis told the detective. Lewis said the officers then apprehended Tyrone again and beat him. She said the officers had another opportunity to arrest him and did not. Tyrone was screaming “help me, help me,” Lewis said.

In another recording obtained by Fusion, Corinthea Servance, the passenger in the car with West that evening, told detectives she heard him say, “You got me, you got me, stop hitting me”.

West did fight against officers Bernardez-Ruiz and Chapman, according to Servance and other eyewitnesses. But they also say he was beaten by police even after he indicated he was giving up. At one point Servance says she yelled out to onlookers: “Somebody else call the police.” He yelled back: “I’m giving up, just tell them to stop beating me.” West fought his way free and made it across the street, Servance said, and she told him to “stop and just lay down.” He surrendered, she said, but police continued to beat him.

One officer, threatened Rucker and her companion, Shawanda Lewis. “Me and Ms. Lewis were yelling to the officers to stop. The white officer came over toward us and told us to back up or this could happen to us,” Rucker told the detective.

At least two eyewitnesses told Detective Delgado that the beating continued when more officers arrived on the scene. Lewis said officers were hitting West with batons and kicking him. Another witness, Duane Bond Jr., said he saw officers kicking West, adding that one officer “landed a haymaker” — a powerful punch — on him.  All eyewitnesses agree the commotion stopped very suddenly and all witnessed police on the scene attempt to revive him.

Fusion reached out to Chaz Ball, the attorney for officers Bernardez-Ruiz and Chapman. He declined to comment for this article given the pending civil lawsuit.

According to statements by police obtained by Fusion and also cited by the IRB report, David Lewis, an officer with the Morgan State University police who responded to the call for backup, had his knee in West’s back while West’s face was down on the ground. This instance of force occurred just before officers noticed that West wasn’t breathing. State prosecutors said Lewis’s knee was in West’s back for a few seconds, but officer Derrick Beasley said in his statement that Lewis’ knee was in Tyrone’s back for “a minute or two.” Fusion could not find a record of Lewis being interviewed by detectives investigating Tyrone’s death.

Fusion reached out to Lewis’ lawyer, Thomas Faulk, who had no comment, citing ongoing litigation.

Officer-in-charge Taras Hnatyshyn realized West, who was face down, wasn’t breathing. “I asked someone to roll him over on his side,” Hnatyshyn told Detective Delgado, according to a recording obtained by Fusion. At that point he noticed that Tyrone’s right leg was stiff. “‘Is he breathing, is he fucking breathing?’ I said. And nobody knew what the answer was.”

According to a summary of a statement given by Officer Corey Jennings, another responding officer at the scene, Officer Lewis was the only one within reach of Tyrone when he stopped moving.

The joint investigation by Baltimore Police, the state’s attorney, and the Office of the Chief Medical Examiner took five months to complete and resulted in no charges.

Summaries of police statements posted to CBS Baltimore show that several officers, including the two officers who initially stopped West, were granted “derivative immunity” in the case by the state’s attorney’s office. (Fusion could not confirm whether or not Lewis received derivative immunity). This means that if officials decide to prosecute an officer, the derivative immunity prevents any statements initially given by the officer from being used as evidence.

“What our 5th amendment right does is protect us from being convicted out of our own malice. We have the right to keep silent,” explains Baltimore criminal defense attorney Dan Goldstein. “And so what a derivative immunity does is say ‘Ok we are going to require you to speak up, but we are going to give you full protection that the 5th amendment gives you. The words can’t be used against you’.” Police officers given derivative immunity can still be prosecuted, but not because of the statements they give during an investigation.

Prosecutors use their discretion when granting immunity to police officers involved in investigations like the one into Tyrone West’s death.  According to Goldstein, derivative immunity is only used when a state’s attorney is only able to get necessary information from a police officer. “If you’ve got some ambiguous evidence and [the officer’s] testimony is critical then derivative immunity makes sense,” he explained.

At least six of the nine officers present before West stopped breathing received derivative immunity from the office of the former state’s attorney. Officer Chapman and Officer Jorge Bernardez-Ruiz, the two officers who administered pepper spray and, according to eyewitness accounts, used force after West said he was giving up, were among those six. Both officers stepped away from West after backup police officers arrived on the scene and were not standing over him when he stopped breathing, according to the IRB report. Still, Mosby could decide to investigate more or lean on the previous investigation to reconsider charges.

Fusion reached out to the Baltimore police department to find out whether and why the other three did not receive derivative immunity, but did not hear back.

Former State’s Attorney Bernstein said in a summary of the events that police found approximately one gram of cocaine at the scene. West was on parole for previous drug charges and was facing up to eight years in prison if he violated his parole, according to Bernstein.

Tawanda Jones disputes the claim and believes if there were any drugs recovered from the scene, they must have been planted.

“My brother was wearing shorts and he had on ankle socks and tennis shoes” she said, noting that West had dropped her off at home just before the incident occurred. Her claim raises questions about two things: the possibility of there being a bulge in West’s sock and the officer’s statement that he found the bulge in the sock when West’s pant-leg was lifted. The family’s attorneys have not received photos of West’s body from that day.

Servance, who was in the car with West, told the detective that West became aggressive when the officer bent down to search his sock. At some point he yelled out, “it’s only a measly four bags,” she is quoted saying in the report.  But Francis-Williams, the West family’s attorney, told Fusion: “At this stage there has been no credible source identifying what if any alleged drugs were recovered from the scene.” The bag of cocaine allegedly recovered by the police was never tested for West’s fingerprints. The IRB report notes that this is a gap in evidence.

A urine test revealed that West tested positively for metabolites, or byproducts, of chemicals typically linked to cocaine. “It appears as though [West] had used cocaine at some point up to three weeks prior because cocaine metabolites were found in his urine,” says Michael S. Ballo, M.D., the laboratory medical director at Northwest Hospital in Randallstown, outside of Baltimore. (Fusion provided Dr. Ballo, who has no relation to the investigation, with documents related to post-mortem tests on West.) The office of the chief medical examiner also tested his blood and found that Tyrone tested negatively for the metabolite most commonly found in cocaine use, Benzoylecgnine. “No cocaine metabolites were found in his blood, evidence that he was not under the influence of cocaine at the time of the altercation.” says Ballo.

The family’s attorney says that the police have not provided them with evidence of there ever having been a bag of drugs on the scene.

West’s family believes the police findings are categorically wrong.

“My son cried screaming for help. He screamed to them to stop the beating,” said Diane Butler, his aunt. “These officers never stopped beating this man until he was no longer moving, no longer breathing, no longer screaming. My son died on the streets of Baltimore city.”

Collier Meyerson is a reporter at Fusion with a focus on race and politics. She lives in Brooklyn.