Houston Chronicle

The Zabihi family of Tanglewood used to dine three or four times a week at the lavish Post Oak Hotel, where pub fare includes wood-fired pizza, bison chili and hibiscus margaritas.

The joyful excursions to Craft F&B came to a halt last summer after a troubling incident involving their teenage son, who is autistic and nonverbal, resulted in a $1 million lawsuit and broader concerns about the treatment of people with neurological differences that aren’t always apparent.

On July 8, Devin Zabihi, 19, wandered away from the family’s table to a patio area, to let off pent up energy, his family said. His involuntary tics, a common feature of autism, did not rattle the restaurant or hotel personnel on previous visits. But this time, his behavior outside an adjacent hair salon alarmed its staff, who summoned hotel security.

Devin’s father, Daniel Zabihi, who runs a petrochemical testing laboratory, sued the hotel, hair salon and its security company in federal court this month alleging they violated Devin’s civil rights with an aggressive and unlawful detainment.

“It is impossible and outrageous to believe that (defendants) were unaware that (plaintiff) was disabled and incapable of communication or defense of himself,” the lawsuit says. The family, who declined an interview, is seeking more than $1 million in damages resulting from what they call false charges, imprisonment, assault and battery.

Rockets owner and Landry’s Inc. CEO Tilman Fertitta, who also owns the luxury hotel, and his attorney said the salon employees saw a suspicious person outside its glass doors fidgeting and reaching toward his groin area and alerted security under the premise “if you see something, say something.”

“That’s how you avert a catastrophe and in today’s world,” said Steve Scheinthal, Executive Vice President and General Counsel for Landry’s,  “We live in a different day and time where we can’t ignore the reality that any individual can cause tremendous bodily harm and death to a significant number of people whether it’s a casino environment, whether it’s our Kemah Boardwark, the Pleasure Pier, our hotel properties, our restaurant properties — there’s a whole ’nother line of what do you do when somebody comes in.”

“I think it’s an unfortunate incident, but I don’t think anybody mishandled it on our part,” Fertitta said. “If they would have come up and thrown him to the ground or whatever, I would have been furious, OK? But they didn’t do that, they very calmly talked to him and were watching his hands.” He said the entire incident from the handcuffing to his father retrieving him from a valet holding room lasted five to 10 minutes.

Fertitta called the lawsuit “a money grab,” noting, “We get hundreds and hundreds of lawsuits like this all over the country.”

Uptown Houston, a private management district also named as defendant in the case, was unaware of the lawsuit and did not have a comment, said spokesperson Delia Mizwa.

Training ground

Law enforcement agencies train for these scenarios, said Sgt. Raymond Lomelo, who oversees a training for the Harris County Sheriff’s Office that teaches best practices for interacting with suspects. He declined to comment on the incident at the hotel, but he said the overall training addresses what may have been the officers’ mindset.

“It’s important for officers to slow down and think through a problem,” Lomelo said. He noted, “I will not speculate and say that this officer didn’t do that.”

The sheriff’s 40-hour training on mental health interactions, includes a unit on interacting with people with autism, Lomelo said. The Centers for Disease Control reported last year that nearly 1 in 60 children is diagnosed with an autism spectrum disorder.

Broadly speaking, he said, the key for officers is to look at the totality of the circumstances surrounding a suspect and determine if their actions are reasonable. They also go through training to check themselves against implicit bias, based on someone’s race, gender, faith and sexual orientation, he said.

“One of the things we discuss when we’re training officers or deputies we talk about the signs they may see — fight or flight, self stimulation, flapping and rocking, speech and language issues,” Lomelo said. “Police responding to person with autism, we know from our training we don’t want to yell, we don’t want to touch if we don’t have to, we don’t want to blind them with lights.”

“If there’s time to consider the totality of circumstances and there’s not a life safety issue,” he said, “it’s incumbent on all of us to consider the entire picture and decide if we even need to act.”

Manager felt uncomfortable

The narrative outlined by the family begins with Devin leaving the afternoon meal with his father and two brothers and heading to the restroom and then a patio to walk around the five-diamond establishment, where Frank Stella artwork hangs in the lobby and the cheapest room goes for $409 per night. He did this “to release the energy that is a known result of autism,” according to allegations.

“The staff at the restaurant and hotel were well acquainted with the Zabihi family, as they were very regular and loyal customers,” the lawsuit says.

On this occasion, Devin was facing the salon, about 10 to 15 feet from the glass doors that access the business from the street. Over the course of the meal, Devin stood in front of those doors — gazing at his reflection — three or four times, according to the lawsuit.

The family contends that Devin’s tics made Traci Duff, the salon manager, “uncomfortable” and prompted her to be “fearful” and to make “false accusations” about what transpired. Initially, the hotel security shrugged off the report. No one informed the family there was a problem, according to court documents.

Devin could not have understood he was creating this panic, they say, because he has “no understanding of the irrational fear and paranoia some individuals have regarding his disability.”

Off-duty Houston Police Department officers, employed by the hotel, surrounded Devin and “violently apprehended” and handcuffed him and held him in a holding room, according to the family’s account.

After Devin’s brother and father intervened, the officers released Devin.

The family accuses the hotel staff of conspiracy, defamation, false imprisonment, false arrest, assault and battery, malicious prosecution, negligence, inflicting emotional distress and racially profiling, because the family is of Middle Eastern descent. They allege the officers were improperly trained, having executed an improper search and failing to establish probable cause to detain Devin.

Handcuffing video

Fertitta and his staff have a differing account of what happened. In a surveillance video shown to the Houston Chronicle, two female employees at the salon appear to be pacing as a young man stands outside with the side of his body toward the doors. He rotates left to right with what appears to be a smartphone in one hand and the other arm grazes his waistband and the front of his pants.

A man in a suit comes through the salon to the outside and officers in uniform approach him on the outside and have an interaction that lasts a couple of seconds before they handcuff him without apparent incident and escort him out of view of the camera. Fertitta did not provide video from before or after the interaction. He strongly denied that Devin was mistreated in any way or roughed up by police.

Fertitta indicated the entire episode could have been avoided if the family had taken precautions.

“The parents should not have let him go off wandering around,” he said.

His lawyer said, “If they would have warned us and said my autistic kid is roaming the property, he would have been treated differently, but you can’t expect the girls inside” to know that.

Gabrielle Banks covers federal court for the Houston Chronicle. Follow her on Twitter and send her tips at gabrielle.banks@chron.com.

gabrielle.banks@chron.com