The Akron Legal News

Court rules Cleveland cops who nabbed wrong suspect will be tried

ANNIE YAMSON
Special to the Legal News
Published: February 22, 2016

The 6th Circuit U.S. Court of Appeals recently ruled that two Cleveland police officers were properly denied summary judgment on claims of excessive force, battery, negligence and infliction of emotional distress.

The officers, Brian Kazimer and Dan Crisan, were sued in the U.S. District Court for the Northern District of Ohio by Juan Ortiz and his family.

The opinion of the circuit court, authored by Judge Jeffrey Sutton, affirmed the district court’s judgment.

“Eyewitnesses saw a police officer chase down a 16-year-old boy with Down syndrome, take him from his mother’s arms, slam him against an SUV, then pin his face against the car, all while ignoring pleas from standers-by that he was a harmless teenager,” begins Sutton’s opinion on the matter.

The circuit court’s summary of the case state’s that, on a summer day in 2010, two armed robbery suspects were on the loose in Cleveland; Kazimer and Crisan were on the case.

“The officers learned from the dispatcher that the suspects had stolen a wallet at gunpoint and had run toward a nearby apartment complex — the same complex, the dispatcher said, where two men had just given a nearly empty wallet to the apartment’s manager,” Sutton wrote. “Coincidence? The officers thought not.”

After pulling up to the complex, Kazimer and Crisan saw someone who was wearing clothing matching the description of one of the suspects: a red shirt and jeans.

Court documents state that Kazimer “jumped out of the car” and gave chase but he was slowed by a resident of the complex who stood in his path and explained that he knew the boy whom the officer was chasing.

The resident later explained that he thought Kazimer must have been mistaken because “why would a police officer be chasing a little boy with Down syndrome?”

Kazimer allegedly told the resident to “shut up and get out of the way” and continued his chase.

“(Ortiz) stopped running when he made it to the apartment building’s parking lot, where his family was waiting,” Sutton wrote. “He hugged his mother, who held onto him.”

Kazimer, who admitted that he saw the boy “surrendering,” nevertheless grabbed Ortiz from his mother’s arms and slammed him into a vehicle.

Witnesses gave statements saying they heard Ortiz crying out in pain but they did not see him resisting. Even after Kazimer gave an “all OK” signal to the dispatcher, he allegedly held Ortiz pinned against the hot car for 15 more minutes.

Many residents yelled that Ortiz had done nothing wrong but, according to them, Kazimer responded, “I don’t care” and then told Ortiz’s parents that they were “lucky he didn’t shoot” their son.

“That may be right,” Sutton wrote of Kazimer’s statement.

The appellate court’s opinion states that when Crisan caught up he learned of Ortiz’s disability and that he had long since surrendered but was still pinned to a car. “Crisan did nothing,” the document states, “except hurl racial slurs at the onlookers.”

The ordeal ended when the police dispatcher radioed that the actual robbery suspects had been apprehended and the officers let Ortiz go free.

“(Ortiz) did not let the officers go free,” Sutton wrote.

Ortiz and his family sued Kazimer and Crisan alleging 4th and 14th Amendment violations as well as several state law claims.

The officers moved for summary judgment based on qualified immunity — a motion which the district court denied with respect to Ortiz’s excessive force claims and some of his state law claims.

“On appeal, the officers concede (quite refreshingly) the relevant facts for immunity and summary judgment purposes: that Kazimer ‘slammed’ or ‘tackled’ a ‘surrendered’ suspect, then ‘pinned’ him down while Crisan watched nearby,” Sutton wrote.

Kazimer countered eyewitness accounts by contending that “some suspects often fake their surrenders only to try to escape anew” after the officer relaxes, thereby justifying his extended hold on Ortiz.

“But Kazimer fails to identify any feature of (Ortiz’s) surrender that would give a reasonable officer pause that (Ortiz) was fabricating his submission to the officer’s authority,” Sutton wrote.

The appellate panel held that, as the Ortiz family explained it, many features of the surrender confirmed that it was not a ruse: Ortiz had stopped moving, was hugging his mother, and remained limp after being shoved against the car.

“Did the possibility of a fake surrender, moreover, really require the officer to pin this compliant suspect against a car for fifteen minutes?” Sutton asked. “This was not the behavior of a recalcitrant criminal.”

The court of appeals ruled that the circumstances did not justify the purported amount of force used by Kazimer for summary judgment purposes. It additionally held that Crisan could be held liable for Kazimer’s actions.

“Our caselaw clearly establishes that police officers are liable for failing to stop ongoing excessive force when they observe it and can reasonably prevent it,” Sutton wrote.

The reviewing panel of judges noted that Crisan saw a young boy, in handcuffs, pinned against a car, not posing a threat to anyone and emitting cries of pain. He even heard the woman who saw the actual suspects tell the officers that they had the wrong person.

“Yet Crisan did not attempt to prevent the force and, worse, added ethnic slurs to the mix,” Sutton wrote. “His lack of action on this record establishes a cognizable claim that he violated (Ortiz’s) clearly established constitutional rights.”

With regard to the family’s state law claims alleging battery, negligence and emotional distress, the court of appeals similarly held that they survive summary judgment.

“The record contains sufficient proof to satisfy the elements of these torts and Kazimer doesn’t argue otherwise on appeal,” Sutton wrote. “He instead contends that he deserves state-law immunity from the lawsuit, which he receives unless (as relevant here) his acts or omissions were with malicious purpose, in bad faith or in a wanton or reckless manner.”

The appellate panel held that Kazimer’s actions were reckless in the least and possibly even illustrated a “perverse disregard” when he ignored the boy’s cries of pain.

And his statement to the parents that they were “lucky” that Ortiz wasn’t shot, “may even go beyond recklessness to maliciousness.”

“No immunity shields him from trial,” Sutton wrote.

In his conclusion, Sutton was certain to point out that “the officers may not have done anything wrong” and that it could be possible that Kazimer and Crisan simply pursued a suspect, detained him in a chaotic situation and eased up once they found out that he did not commit the robbery.

But the denial of summary judgment does not prove or disprove guilt.

The district court’s judgment and the court of appeals’ affirmation of that ruling means that the officers will have a chance to give their version of events to a jury when the case goes to trial.

Judges Ralph Guy and David McKeague joined Sutton to form the majority.

The case is cited Ortiz, et al. v. Kazimer, et al., case No. 15-3453.

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