Kyle Brennan: Arguments on appeal

UPDATE: On September 19 the appeal court rejected plaintiff's application, affirming the district court's dismissal of the action. More details at the end of this piece.

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A lawyer for the mother of Kyle Brennan, a vulnerable 20-year-old who died while visiting his Scientologist father, will try today to persuade a Florida appeal court to reinstate their wrongful death lawsuit.

The lawsuit over the death of Kyle Brennan arrives at a federal appeal court in Florida later Friday (September 14), where lawyers on both sides will present their arguments to the judges.

Brennan died on or around February 16, 2007, while visiting his father, Thomas Brennan, a dedicated Scientologist, at his home in Clearwater, Florida.

He died from a single shot to the head from his father's .357 Magnum pistol. At issue is whether Scientology’s dogmatic hatred of psychiatry contributed to the death of the mentally troubled 20-year-old.

Targetted in the lawsuit are Kyle's father, Thomas Brennan, two other Scientologists and the Church of Scientology Flag Service Organization – the movement's Florida operation.

Representing Kyle Brennan's mother Victoria Britton at the Federal Court of Appeal in Jacksonville Florida will be attorney Luke Lirot.

But legal briefs already filed by both sides give an idea of the arguments they will advance in oral argument today.

Lirot will be trying to persuade the judges to overturn a district court ruling that dismissed the case last December. Scientology's attorneys will be arguing that the appeal court should follow the district court and throw out the lawsuit.

Both sides agree that in the days leading up to his death he had not been taking the medication his psychiatrist had prescribed him for his depression, Lexapro.

Where the two sides differ is whether it was Kyle Brennan's decision to stop taking the drug, as his father says; or whether Thomas Brennan's Scientology-inspired opposition to psychiatric drugs prompted him to confiscate his son's medication.

At the District Court in Tampa, Florida last December, Judge Steven D. Merryday dismissed the case. He took the view that the plaintiffs had nothing to counter Thomas Brennan's account.

The plaintiff's claim of Scientology's complicity in, and responsibility for, Kyle's death remains a mere hypothesis that is without essential support based upon reasoned and direct inference from the available evidence..., he wrote.

After painstaking review, I conclude that the plaintiff's suspicion, although perhaps not impossible, is not anywhere evidenced in the record creates no genuine issue of material fact for reasoned determination by a jury.¹

But Lirot, in his appeal brief, argues that the judge over-reached himself: that these were issues that should have been put to a jury to decide.

He argues that there is more than enough evidence to show that Scientology's dogmatic opposition to psychiatric drugs was at the root of the tragedy.

Scientology's anti-psychiatry dogma and the rigid top-down ethics system that governs members' conduct were the keys to the case against the defendants, Lirot argued.

One of the major tenets of Scientology is the belief that psychiatric treatment and psychological counseling is a forbidden practice, and the existence and use of psychiatric drugs is a forbidden and unacceptable human endeavor.

No practicing Scientologist can maintain a relationship with any individual undergoing psychiatric treatment or consuming psychotropic drugs. Both psychiatry and the taking of psychotropic drugs are abhorrent to Scientologists.²

Neither Kyle Brennan nor his mother were Scientologists, wrote Lirot. In fact, he added, they “...both found these beliefs to be curious and repugnant.”

But for Thomas Brennan, as a Scientologist, it would have been completely unacceptable that his son was taking a psychiatric drug to cope with his fragile mental condition, Lirot argued.

And as a Scientologist, he had no option but to report the matter to his superiors.

He argued that Brennan had turned to his spiritual counselor, Denise Gentile (née Miscavige; the twin sister of the movement's current leader David Miscavige); and Gentile informed a Scientology “Ethics Officer” whose job it is to enforce Scientology's values on its members.

Denise Gentile, her husband Gerald and Thomas Brennan are the three individuals targetted in the lawsuit.

Scientology 'handled' the Brennans

The ethics officer, wrote Lirot, gave written orders to Thomas Brennan to “to remove his son from the apartment and 'handle' the situation with his son per Scientology 'policy,' even though Kyle was never a Scientologist.”³

Lirot continued:

In compliance with the commands from the Scientology Ethics Officer, Thomas Brennan locked the prescription Lexapro in the trunk of his car and had his son pack his bags and strip his bed of linens.

Thomas Brennan then told Kyle's mother, Victoria Britton in Charlottesville, Virginia, that Kyle had to move out immediately.

Within 24 hours, Kyle Brennan was found dead from a single shot from a .357 magnum handgun that was left in an unsecured nightstand inside the father's bedroom.⁴

In support of their case, the plaintiffs – now the appelants – drew upon the testimony of former Scientology insider Lance Marcor.

In his declaration Marcor set out how Scientology doctrine would have obliged Brennan to report the situation to his superiors – and how they would have reacted.

“This submission can not be overemphasized, and it sheds light on the incredibly insular

and cloistered practices of Scientology,” wrote Lirot.⁵

Simply stated, Kyle Brennan’s presence in an apartment shared by Kyle’s Father, Thomas Brennan, was an enormous “flap” and a “potential trouble source.”

Allowing the presence of anyone undergoing psychiatric treatment or taking psychotropic drugs was the equivalent of a “high crime,” and failure to “disconnect” and “handle” that person would have subjected Thomas Brennan (and even his “Chaplain,” Denise Gentile) to serious punishment.⁶

Internal Scientology documents from FLAG, Scientology's Florida operation, showed that Brennan had reported the situation to Denise Gentile, who had informed her husband, Lirot continued.

According to the extensive Declaration provided by Marcor, the tragedy befalling Kyle was the result of a meticulous and unwavering set of practices, showing the involvement that Scientology has on individuals in controlling their lives and implementing drastic and unorthodox mechanisms for “handling,” through whatever means necessary, the “high crime” of allowing the use of psychotropic medication.

Marcor also said that based on his knowledge of the Scientology procedures that had to be followed to handle such a “flap”, many key documents and reports were missing from the papers submitted to the court.⁷

The implication appears to be that these missing documents would have supported the case against Scientology.

Brennan 'was not taking his medication'

Scientology's lawyers, in their filing to the appeal court, paint a very different picture.

They portray Kyle Brennan as a troubled young man who even before he arrived in Clearwater to visit his father had not been taking his medication regularly – and may even have been contemplating suicide.

The case against their clients, they argued, “...is a mishmash of facts, fiction and self-serving conclusion...”.⁸

Kyle Brennan's parents, Victoria Britton and Thomas Brennan, were divorced and Kyle lived mainly with his mother and step-father in Charlottesville, Virginia.

In the months leading up to his death, he had left his home to go travelling, visiting Iowa, California, Hawaii and finally his father in Clearwater, Florida.

Scientology's brief quotes an affidavit from Kyle's paternal aunt, Cathleen Brennan, whom he visited in California about a month before his death.

She described him as as “dark and gloomy”, uncommunicative and alienated from both his parents.

Summarising her account, the brief states: “There was just a stream of hate coming from him … She wondered if he was travelling around saying goodbye to people … Kyle stated that he was not taking his medication because 'it was crap, he hated it and it did not help him'.”⁹

During his visit to California, Kyle Brennan was staying in the house of another one of his other paternal aunts, Caryl Farrell.

Farrell described her nephew as “depressed and paranoid” – and, the brief adds, he had also told her that he had stopped taking his medicine. ¹⁰

By February, Kyle Brennan's travels had taken him to Hawaii, where after he was the victim of an assault, he was interviewed by a police officer, Rockwell Silva.

“Officer Silva interviewed Kyle, found him to be reasonably lucid, and advised him that his family was worried about him,” Scientology's attorneys noted.

“Kyle told the officer that he was not taking his medicine as there was no need and that it was part of his problem,” they added.¹¹

Later the same month, after more than two months of travelling, Kyle Brennan arrived at his father's apartment in Clearwater.

Tom Brennan thought his son looked pretty bad when he arrived, the brief noted. “He had lost weight, did not look happy and was complaining about everybody.”

But on the crucial question regarding the drugs, Scientology's lawyers underlined Tom Brennan's account: he said it was Kyle who had handed him his drugs – that it had been his son's decision to stop taking them, not something that he had imposed on him.

“According to Tom, who is the only person who can testify about the conversation, Kyle handed him the bottle of Lexapro and explained 'I hate this shit. It makes me sick.'”¹²

During the nine days of his stay, Kyle Brennan seemed listless, spending a lot of his time at his father's apartment watching videos or on the computer.

His parents were both concerned, and discussed their son on the phone: but they did not agree on what to do to help him.

Victoria Britton rejected a suggestion that Kyle be admitted to Narconon, a drug treatment centre run along lines set out by Scientology's founder L. Ron Hubbard. She did not believe taking him off his medication was the solution.

On the day Kyle died, his father says he had tried to bring him around to thinking about his future, but his son appeared to interpret that as his wanting him to move on.

When he got back from work later that day, he found the door to his apartment barricaded from the inside. When he managed to gain entry, he found Kyle dead in his bedroom, having shot himself with his grandfather's police pistol – a family heirloom.

“Tom never told Kyle where the pistol was located in his apartment and Kyle only could have discovered it by an aggressive search of Tom's room,” Scientology's attorneys argue.¹³

The only role that the Gentiles played was as friends and advisers, the brief argues: they did not issue ultimatums or orders to Tom Brennan – nor is there any hard evidence in the legal complaint against the defendants to say otherwise.

Scientology's legal team also points out that the Clearwater Police investigation into Kyle Brennan's death concluded that it had been suicide and that they had filed no charges against anyone.

And they repeat the argument accepted by Judge Merryday in the district court: the plaintiffs simply have nothing solid to support their case against Scientology, or the individual Scientologists named in the lawsuit.

“[T]here is no evidence that the Church interfered in Kyle's healthcare...,” it states.¹⁴

“While Victoria, in her grief and her campaign to blame somebody for the events that befell her son, may suspect her ex-husband of wrongdoing, the Estate fails to produce record evidence of such and, therefore, the award of summary judgment should be affirmed.”¹⁵

Key disputed issues

For Lirot, representing Kyle's mother Victoria Britton, this account is a travesty.

In a second, reply brief submitted to the appeal court, he set out to rebut two key claims of Scientology's legal team.

He attacked the defence claim that Kyle Brennan had voluntarily parted with his medication.

And he also argued against the defence position that Kyle's infrequent use of Lexapro would have cancelled any negative effect his being deprived of the drug might have had.

Tom Brennan was now claiming that his son had voluntarily handed over his medication: but that did not tally with what he told police on the night of his son's death, Lirot argued.

He referred to the account given by Officer Jonathan Yuen of the Clearwater Police Department, who interviewed Thomas Brennan at the scene shortly after he had discovered his son's body.

Under deposition Officer Yuen said:

He said that his son was prescribed the prescription of Lexapro for his depression. However he stated his son was not taking the medication. Thomas also advised that he did not believe in psychiatric medications based on his belifes. And Kyle – he encouraged Kyle to stop taking the medications, and he advises that he took the prescription bottle from him about three days ago.¹⁶

There is no suggestion that this was a voluntary decision on the part of Kyle Brennan, Lirot argued.

Officer Yuen said during his deposition:

A: Basically he advised that he and Kyle had discussions about not taking the medication and trying to get off the medication and he decided to place it on the trunk of his car.

Q: Who decided?

A: Thomas did.¹⁷

Officer Yuen also said that Thomas Brennan had told him that Kyle only took his medication when he felt like it.

Why then, asked Lirot, would Kyle Brennan have voluntarily handed over pills which, by father's own account, he took when needed?

On the night of his son's death then, Thomas Brennan, had told police “that he did not believe in psychiatric medications because of his religious beliefs.”

Still quoting from the relevant police report, Lirot continued: "Thomas encouraged Kyle to stop taking the medications and took the prescription bottle from him approximately three days" before his son's death (Lirot's emphasis).¹⁸

All the effort the defence team put into establishing Kyle Brennan's deteriorating mental state prior to his arrival in Clearwater was neither here nor there if in the crucial final days he was deprived of the medication he needed, Lirot argued.

And to lock away his medication, but not something as lethal as a .357 Magnum, Lirot argued, “...is not something that can be disposed of nearly with a summary judgment...”.¹⁹

The second key question was whether or not there were any risks involved in taking Lexapro away from someone who had in any case not been taking it regularly.

Kyle Brennan's psychiatrist, Stephen McNamara, took the view that while irregular use of Lexapro was not ideal, it was acceptable.

But that did not mean that there were no risks of “a significantly adverse effect” if the user was suddenly deprived of the drug.

McNamara was quite clear on this point, noted Lirot: “The impact of the removal of even sporadically consumed medication could be devastating.”

And no matter that Scientology's expert witness took a different view: this was just the kind of disputed issue that should have gone before a jury.

It should not have been decided by the District Court, Lirot added.

Rush to judgment

Judge Merryday's ruling had ignored crucial facts in the case, Lirot argued.

It never properly addressed the implications of Scientology's dogmatic opposition to psychiatric drugs and the authoritarian nature of its ethics system governing members' behaviour.

And it had concluded that there was “no genuine issue of material fact” to put to a jury.

But the plaintiff's contention that Tom Brennan had confiscated his son's medication was was not groundless speculation. It was supported by Brennan's own initial statements to the police.

“His testimony is inconsistent, and the District Court, painfully, disregarded these inconsistencies....,” wrote Lirot.

“Under any analysis of the record in this case, the 'voluntariness' of the disuse of Lexapro is a disputed issue.”²⁰

Judge Merryday had also ruled that those targetted in the lawsuit had no duty of care to Kyle Brennan.

But Lirot argued: “Kyle's psychiatric ailments were known, the importance of his continual taking of Lexapro was communicated, and the results of this tragedy were forseeable.”(Lirot's emphasis)²¹

And if there was any dispute over the question of forseeability, well – that too should have been left for a jury to decide, he added.

Citing case law, Lirot argued: “A judge should only remove the question from the jury if there is 'a total absence of evidence to support an inference that the intervening cause was foreseeable.'”²²

That was not the case here, he wrote.

Scientology's legal team had cited a wealth of case law in defence of their clients, Lirot noted. But certain aspects of this affair made it unique.

For one thing, he argued “...none of these cases involved an 'International Church' with a well known and militant aversion to psychotropic drugs.”

For another, he argued: “Taking away important psychiatric medication and negligently leaving a handgun and easily available ammunition accessible to a person with known psychological problems creates an entirely different factual scenario.”²³

The plaintiffs did not dispute the right of Scientologists to their beliefs and their right to express their anti-psychiatry views, wrote Lirot.

But those beliefs could not be imposed on non-believers. And this, he argued, was exactly what had happened here, with tragic consequences.

“This is a case about negligent and invasive conduct, not religious freedom. The District Court erred by glossing over this huge fact.”²⁴

What they wanted then, was their day in court – and before a jury, not just a judge.

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UPDATE: On Wednesday September 19, less than a week after oral arguments had been heard, the court filed its response:

“After full review and oral argument, we conclude that... [Lirot] has demonstrated no reversible error in the district court’s order,”  said the court. Case dismissed.

Scientology spokeswoman Pat Harney told The Tampa Bay Times: “The ruling of the U. S. District Court in Tampa and the rapid affirmation of the 11th Circuit Court of Appeals in Atlanta both confirm what we have said from the beginning — the evidence is overwhelming that the Brennan lawsuit never had any factual or legal basis.”

Leaving aside the preliminary details identifying the case, the actual ruling ran to just five lines.

In a response to the ruling, Lirot expressed his frustration that the court had not troubled itself to explain where his arguments had fallen down.

“What an incredible disappointment!” he wrote.

“We will get no further explanation, no comment, and no articulation of where the arguments I made were inaccurate, insufficient, or wrong.

“I despise those situations where a Court rules against me, but does not articulate any basis to support their decision.

“It does not happen often, but this is clearly the worst example of that hollow practice.

“We can go to the Supreme Court, but that is the equivalent of a lottery ticket, since they take less than 3% of the petitions filed with them.

“A sad day for American justice, or the lack thereof.”

Whether Victoria Britton decides to take that lottery ticket remains to be seen. But according to messages posted by her supporters, we can expect a statement from her before long.

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For a narrative summary of the final weeks of Kyle Brennan's life – and an account of the tortuous litigation surrounding this case, see my first posting in this section: Appeal lodged in Brennan case.

Campaigner Justin Ross has launched his own website on this lawsuit, where you can find links to many of the key documents in the case.

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1 Estate of Brennan v. Church of Scientology Flag Service Organization, Inc.; Denise Gentile; Gerald Gentile; and Thomas Brennan. December 6, 2011, Tampa, Florida, District Court summary judgment, Case No. 8:09-cv-264-T-23EAJ.

2 From page 13 of Appellant's Corrected Initial Brief in The Estate of Kyle Brennan, by and through,

its Administrator, Victoria L. Britton, (Appellant), v. Church of Scientology Flag Service

Organization, Inc., et al. (Appellees).

3 That order comes from a heavily redacted Scientology document in the case files: a security check document. It instructs Thomas Brennan:

Get your son moved out and get him set up somewhere so that he can get handled.

“The situation required handling and Kyle was not gone, so the only inference is that the offending medication had to be...,” writes Lirot in his reply brief (page 25).

Former Scientologist Lance Marcor's testimony had established that directives from an ethics officer were orders, not advice: to disobey or disregard them would result in swift and severe sanctions.

4 Pages 14-15 of the Appellant's Corrected Initial Brief.

5 You can find the Second Declaration of Lance Marcor – and other key documents in this case – at the Scribd account of AnonLover.

6 Page 22 of the Appellant's Corrected Initial Brief.

7 Pages 22 to 23 of the Appellant's Corrected Initial Brief.

8 Page three of the Appellee's Joint Answer Brief: April 4, 2012. Scientology's legal team also offered a detailed account of how many refills Kyle Brennan had bought for his medication in the weeks leading up to his death in a bid to argue that even before he arrived at his father's apartment he had not been taking his medication regularly. Their account is vigorously disputed by the other side. Kyle could simply have bought refills and put the pills in his original bottle, thus confounding the defence's calculations, Lirot points out.

9 Page six of the Appellee's Joint Answer Brief.

10 Page seven of the Appellee's Joint Answer Brief.

On the other hand, Gary Robinson – the brother of Kyle's mother, Victoria Britton – said he had spoken to his nephew by phone in January, when he was visiting his aunts and again on February 7, on that occasion for two and a half hours.

Robinson's statement said: I asked Kyle if he was still taking his Lexapro. He told me that he was taking it every day since his assault in Hawaii on February 5, 2007. Declaration of Gary Robinson, submitted to the court.

In his statement Robinson also says: He realized that the Lexapro was helping him although it made him sleepy and he didn't feel like eating... He promised me he would continue to take them, he had enough saved up to make it home, and he would get a refill when he returned to Virginia.

We then talked about his future plans. He sounded very upbeat and eager to back home and school.

This contrasts starkly with the portrait of Kyle that his paternal aunts gave in their accounts.

11 Page seven of the Appellee's Joint Answer Brief.

12 Page nine, Appellee's Joint Answer Brief.

13 Page 13 of the Appellee's Joint Answer Brief.

14 Page 43 of the Appellee's Joint Answer Brief.

15 Page 44 of the Appellee's Joint Answer Brief.

16 Quoted on page three of Lirot's Reply Brief, but you can also find it on page 18 of Officer's Yuen's deposition posted at AnonLover's archive of key documents in the case. (See also pages 29-32 of the deposition).

Q. Did it appear to you that the father had taken control of the medicine?...

A. Yes.

17 From page four of Lirot's Reply Brief; page 32 of Officer's Yuen's deposition

18 From page 11 of Lirot's Reply Brief; page 11 of the Clearwater Police Department Report (2007-3872 Suicide).

19 From page 13 of Lirot's Reply Brief.

20 Pages 15-16 of Lirot's Reply Brief.

21 Page 22 of Lirot's Reply Brief.

22 Citing Overby v. Willie, 411 So. 2d 1331, 1332 (Fla. 4th DCA 1982). Page 23 of Lirot's Reply Brief.

23 Page 23-24 of Lirot's Reply Brief.

24 From page 28 of Lirot's Reply Brief.