Police, The Fourth Amendment, Qualified Immunity

California Highway Patrol Officer Brame has trouble differentiating drunks and stroke victims

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Case: Orr v. California Highway Patrol, Dist. Court, ED California 2015

What happened:

Plaintiff is a resident of Citrus Heights, California. . . . In September of 2006, plaintiff suffered a brain-stem stroke that forced him to retire from his job at a money-management firm. . . . Later, in June 2013, plaintiff suffered transient ischemic attacks or “mini strokes.” . . . The strokes left plaintiff with facial droop, slurred speech, and balancing problems that require him to use a cane. . . . At the time of his arrest in August 2013, plaintiff was 76 years old.

On August 6, 2013, plaintiff was driving his grey 2005 Toyota southbound on the Interstate 80 Business Loop (“I-80 Business”) to his former home in South Sacramento. . . . At that time, Officer Brame was driving a marked patrol car southbound on I-80 Business to transport an arrestee to the Sacramento County Jail. [Ed.: the opinion does not provide in its text Officer Brame’s first name] . . . Brame pulled up directly behind plaintiff in the left lane and noticed that plaintiff appeared to be driving too slowly. . . . After observing plaintiff make what he believed were several erratic moves, Brame pulled plaintiff over. . . .

Brame collected plaintiff’s license and registration and asked plaintiff to get out of the car. . . . When plaintiff asked what the matter was, Brame asked plaintiff if he had been drinking, and plaintiff replied that he had not. . . . Brame also asked plaintiff if he had taken any drugs or medications that day, and plaintiff responded that he had taken medication for his heart before he left home. . . . It is disputed whether plaintiff also informed Brame that he had suffered a stroke. While plaintiff states he repeatedly informed Brame about the stroke, . . . Brame states plaintiff informed him that he had a neurological condition but does not recall whether plaintiff actually used the word “stroke,” . . .

Brame became increasingly suspicious of plaintiff after performing two sobriety tests, both of which plaintiff failed.[1] . . . Brame also noticed that plaintiff’s speech was slurred and his pupils were constricted. . . . Brame called CHP to request that they send someone with a breathalyzer test, and Officer Plumb soon arrived with the equipment at the scene. . . . The result of plaintiff’s test was zero, ruling out alcohol. . . .

Still suspicious that plaintiff could be under the influence of drugs, Brame and Plumb decided to place plaintiff under arrest for driving under the influence. (Id. at 118:23-119:1.) Brame made arrangements for a certified drug recognition expert to conduct a further evaluation of plaintiff at the CHP office to rule out whether or not drugs were the cause of his appearance and behavior. (Id. at 116:19-22.)

Plaintiff initially cooperated with the arrest. However, when Brame informed plaintiff that he would have to be handcuffed, plaintiff states he told the officers that he could not be handcuffed because he had problems balancing. (Orr Dep. at 63:3-4.) After some discussion, plaintiff and the officers reached an impasse. Plumb communicated to Brame that they would need to take plaintiff down, and in a matter of seconds Plumb punched plaintiff in his right ribs and knocked him to the ground. (Orr Dep. at 65:12-20; Plumb Dep. at 30:23-25.) The officers handcuffed plaintiff behind his back and lifted plaintiff off the ground. (Orr Dep. at 70:18-23; Brame Dep. at 152:22-153:2.)

Sargeant Kelly, who had arrived at the scene, transported plaintiff to the CHP office. (Kelly Dep. at 14:8-10 (Docket No. 54-4).) There, Officer Hannem performed an hour-long drug-recognition evaluation on plaintiff and ultimately [determined] plaintiff was a “medical rule-out,” meaning that in his opinion, plaintiff’s condition was due to a medical condition as opposed to drug use or alcohol. (Id. at 54:14-17, 58:6-12.)

At 4:40 p.m. plaintiff was booked at the Sacramento County jail for willfully resisting an officer in violation of California Penal Code section 148(a). (Helm Decl. Ex. 19 at 8 (Docket No. 54-18) (noting plaintiff was transported to Sacramento County Jail and booked for a “148(a) PC at 1640 hours”).) Plaintiff was released sometime between 12:30 and 1 a.m. (Orr Dep. at 89:18-21.)

As a result of his arrest, plaintiff asserts he sustained substantial bruising to his body, endured pain, and took six to seven weeks to heal. (Orr Dep. at 32:25-33:2, 92:23-102:4; Helm Decl. Ex. 33.) Plaintiff brought claims against Officers Brame and Plumb for (1) unreasonable search and seizure and excessive force in violation of the Fourth Amendment, 42 U.S.C. § 1983; (2) interference with plaintiff’s enjoyment of his rights, Cal. Civ. Code § 52.1; (3) interference with plaintiff’s right to be free from violence or intimidation, Cal. Civ. Code § 51.7; (4) assault and battery; (5) negligence; (6) Elder Abuse, Cal Welfare & Insts. Code § 15610.07; and (7) false arrest. (See First Am. Compl. (Docket No. 5).) Plaintiff also brought claims against the California Highway Patrol and the State of California under the American with Disabilities Act (“ADA”) and Rehabilitation Act (“RA”)

Decision: Neither party gets summary judgement (at least on most counts) — trial is needed.

Written by Burgers Allday

March 7, 2015 at 5:06 am

Posted in Uncategorized

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