Tuesday, February 18, 2020
Panel Reverses Summary Judgment on Claim Against Two Officers for Excessive Force and ADA Claim Against L.A. City by Woman With Shoulder Injury Who Protested Hands Being Forced Behind Her Back
By a MetNews Staff Writer
The Ninth U.S. Circuit Court of Appeals has reversed a summary judgment in favor of the City of Los Angeles and two of its police officers in an action by a Century City entertainment lawyer who was handcuffed behind her back when arrested on a traffic warrant despite her protest that she had a severely injured shoulder that was “frozen” and that such positioning of her arms would result in extreme pain.
Among the allegations by plaintiff Marina Borawick are that, because the officers viewed her as belligerent, she was vindictively kept in handcuffs for about an hour, notwithstanding that she was in agony. Borawick charged that they acted despite a fear she expressed, after she was placed in a police car, that the experience—in light of her vascular disorder which had resulted in three bypass surgeries—could prove life-threatening to her.
A video recording of the encounter shows her exclaiming: “I’m afraid I’m going to have a heart attack.”
Borawick referred the officers to medical information in her wallet which they examined but, she complained, did not cause them to alter their conduct.
(The recording also reflects that they were not impressed by her screamed proclamation: “I’m an attorney in good standing!”)
While affirming summary judgment on some claims, a three-judge panel on Thursday reinstated Borawick’s claim against LAPD Officers Steve Reyes and Peter Correa, who arrested Borawick, for conduct which she asserts constituted a Fourth Amendment violation, actionable under 42 USC §1983. It also restored claims against the city for an alleged violation of the Americans with Disabilities Act and Rehabilitation Act (“ADA”).
District Court’s View
It was District Court Judge Terry J. Hatter Jr. of the Central District of California who awarded summary judgment to the defendants, including two officers, Pompello Calderon and Julian Gonzalez, who arrived on the scene after the handcuffing took place.
Hatter found that the city is not be liable for an ADA violation, declaring that handcuffing arrestees is a standard LAPD practice and that “no reasonable jury could find that Borawick was denied an accommodation because of her disability.” He said Reyes and Correa are entitled to qualified immunity, explaining:
“Borawick pointed to no precedent, and the Court could find none, that clearly established her right to be either free from handcuffs or handcuffed in an alternative manner purely because she told the arresting officers that she had a pre-existing injury.”
Borawick had been pulled over on Venice Boulevard on April 21, 2016, based on a defective brake light, while she was on her way to a medical appointment in connection with the condition of her shoulder, The officers ascertained that there was a warrant for her arrest based on a misdemeanor hit-and-run stemming from a car collision.
In Borawick’s opening brief in the Ninth Circuit, the West Los Angeles law firm of Schonbrun Seplow Harris & Hoffman LLP, argues, with respect to the excessive force claim:
“This case concerns the brutal treatment of a fifty-nine-year-old disabled woman who posed no threat to arresting officers and yet was unnecessarily and forcibly handcuffed in a manner that caused her agonizing pain and, due to her medical conditions, nearly killed her.”
The brief sets forth:
“As soon as the officers forced Ms. Borawick’s arms behind her back, she began to writhe and scream in agony….Ms. Borawick screamed, ‘My arm! My arm won’t go back! Oh my God I’m going to pass out.’…Ms. Borawick repeatedly informed the officers she could not sit with her arms like this, prayed to God, and asked the officers to please take her somewhere she could get help….
“The officers responded by telling her to relax,…by telling her they were not in any hurry to get out of there,…and by making her wait in the car still handcuffed rather than immediately taking her to the station where she could be released….They made no move to accommodate her even though the officers acknowledged there was a possibility that Ms. Borawick was experiencing real pain.”
The brief contends:
“At the time, Ms. Borawick did have a misdemeanor warrant for a past traffic collision issued by the Santa Monica Police Department….It was unnecessary to handcuff Ms. Borawick for a misdemeanor warrant….Ms. Borawick did not evade or flee from the officers and was cooperative at all times.
It argues that under California Peace Officer Standards and Training standards “and case law, it was not appropriate to handcuff Ms. Borawick” based on an alleged misdemeanor.
In disallowing the claim under the ADA, the brief maintains, Hatter relied on outmoded dictum.
An alternative to handcuffing, the brief suggests, would have been to call for a vehicle equipped with a cage.
The City of Los Angeles stressed that at some point, the officers did accommodate Borawick by lessening the gap between her wrists by attaching each wrist to a different pair of handcuffs, which were joined.
Its estimate of the total amount of time she was handcuffed was less than the time—“over an hour”—Borawick stated. According to her, the trip to the LAPD’s Pacific Division station took “roughly thirty minutes” and it was only when she was transported to the Santa Monica station that double-handcuffs were used.
The city’s brief argues:
“The principal Fourth Amendment questions Borawick presents on appeal are objective ones: Would reasonable police officers apply ordinary handcuffs to an arrestee, notwithstanding her complaints of shoulder pain, for a five-minute drive to the police station in a car with no barrier separating the arrestee from the police officers? Likewise, did the officers then behave reasonably in accommodating the arrestee by doubling the length of the handcuffs, thereby providing more mobility—and reducing the complained—of pain to mere discomfort—when driving the arrestee for an additional 20 minutes?
“The answer to both of those questions is yes; the Officers’ use of force was reasonable as a matter of law. There were no Fourth Amendment violations here, and if there were, Officers Reyes and Correa would be entitled to qualified immunity for them. The law is not clearly established that it constitutes an excessive use of force either: (1) to refuse, in response to a complaint of pain, to un-cuff or alternatively-cuff an arrestee for a five-minute drive in a cage-less car, or; (2) to refuse, after having doubled the length of the handcuffs, to further accommodate the arrestee for a twenty-minute drive in a cage-less car.”
Addressing the ADA claim, as well as her Monell claim (for a constitutional violation stemming from a municipality’s policy or custom), the city said that Borawick “hasn’t made the required showing, under either, that any constitutional or statutory violation she suffered was the result of the City’s deliberate indifference to a pattern of similar violations by its employees.”
Ninth Circuit’s Opinion
The Ninth Circuit panel said, in reinstating the claim against Reyes and Correa:
“Borawick’s Fourth Amendment claim against officers Reyes and Correa cannot be resolved as a matter of qualified immunity on summary judgment. Public officials are immune from civil suit only insofar as their conduct does not violate a right that was ‘clearly established’ at the time the conduct occurred….By the tune of Borawick’s arrest in 2016, we had long since established that ‘[w]hen no immediate threat is posed and the police can use other means of patting down a suspect, they may not insist on doing so in a manner that will cause the suspect pain.’ ”
The opinion goes on to say:
“In this case, Borawick and Appellees have raised genuine disputes of material fact over whether there was an objective basis to believe that Borawick was a danger to the officers or to the public: whether a reasonable officer, having been alerted to Borawick’s disability and medical history, would have employed alternative means of restraining her: and whether a reasonable officer would have known the handcuffs were causing Borawick unnecessary or unusually severe pain. As these disputes bear on whether Reyes and Correa engaged in conduct proscribed by clearly established law, the officers are not entitled to qualified immunity as a matter of law.”
In reversing summary judgment on the claim under the ADA, the judges wrote:
“Borawick presented evidence that, if true, could lead a fact-finder to conclude that Reves and Correa were deliberately indifferent to her disability as they knew of a reasonable accommodation (i.e., adding a second ring to her handcuffs) which they did not employ despite having the ‘time and opportunity’ to do so….Under the ADA and Rehabilitation Act. municipalities are vicariously liable for the conduct of their employees.”
The panel affirmed the summary judgment as to other claims.
“As neither Gonzalez nor Calderon were involved in Borawick’s arrest and handcuffing, the district court properly dismissed her claims against those officers,” the opinion says.
It agrees with the grant of summary judgment on the Monell claim for the reason that “Borawick presented no evidence for a fact-finder to conclude that the LAPD’s handcuff training created a ‘pattern’ or ‘patently obvious’ risk of unconstitutional conduct by officers.”
Borawick claimed “First Amendment retaliation,” attributing the officers’ actions toward her to their perception that she was not according them adequate respect. The opinion quotes the U.S. Supreme Court as saying in its 2019 opinion in Nieves v. Bartlett that a “plaintiff pressing a retaliatory arrest claim must plead and prove the absence of probable cause for the arrest.”
Thursday’s opinion says:
“Because Borawick does not dispute the existence of probable cause to initiate the stop or that she was the subject of an outstanding arrest warrant for which she was subsequently booked, her claim is dismissed.”
The case is Borawick v. City of Los Angeles, 18-56233.
Borawick is with the firm of McPherson LLP, which says on its website:
“Marina Borawick has been practicing law for thirty years, almost all of which have been in the field of entertainment. She began her career as an associate at O’Melveny & Myers. It was at O’Melveny that she got her first exposure to the entertainment business, working on television development and production deals. Ms. Borawick advanced her entertainment/legal career by joining Orion Pictures, and then moving to MGM/UA Television, Robert Redford’s Wildwood Enterprises, and then Southfork Pictures, as well as several well-regarded private entertainment law firms. For the last thirteen years, she has maintained her own practice, much of which has been in the service of Warner Bros.”
She was admitted to the State Bar in 1982.
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