Claims Revived in Ohio’s ‘I Can’t Breathe’ Case

     CLEVELAND (CN) – The Sixth Circuit ruled Friday that the late Rodney Brown’s mother may sue Cleveland police for excessive force, lack of probable cause and ignoring his pleas, “I can’t breathe,” after repeatedly Tasing him.
     Cleveland police Officers Michael Chapman and Belal Ilain began tailing Rodney Brown at about 8:45 p.m. on New Year’s Eve 2010. Though the officers said they saw Brown, 40, driving with no headlights, two eyewitnesses who live in the area and heard the siren said Brown’s headlights were on.
     After stopping Brown, Chapman told him to get out and walk to the back of his car, planning to arrest him on a charge of failing to produce a driver’s license.
     Witnesses say that after Chapman elbowed Brown in the back of the neck while patting him down and pushed him onto the vehicle, Brown broke away and faced the officers.
     The officers claim Brown threw them off his back and backed away 10 or 15 feet.
     Chapman says he pointed his Taser at Brown and told him to get on the ground, but the witnesses say they did not hear any warning before Chapman fired his Taser.
     Taser data shows it was fired for seven seconds, two minutes after Brown was pulled over.
     Brown ran away as the officers chased him out of the witnesses’ view.
     Ilain then fired the Taser at Brown’s back and grabbed his shoulders and head, taking him to the ground, while Brown resisted, punching and kicking the officers, according to their report.
     The officers say Brown was holding a nylon pouch with a folding knife inside. Chapman said, “I’m going to shoot him, I’m going to shoot him,” and Tased him twice more.
     Ilain then Tased Brown before backup arrived to help handcuff him.
     Brown immediately said he was having trouble breathing, on the police recording.
     Officer Erik Melendez says he heard Brown grunting, but can be heard on the police radio saying, “Who gives a fuck?”
     Another officer responded, “Not here,” on the recording. “Be careful.”
     Brown went limp before he reached the patrol car, and the officers dragged him onto the back seat, and soon noticed his pupils were fixed, they say.
     Paramedics found Brown “propped up” on the curb, leaning against an officer’s leg at 9:07 p.m., with no pulse, and were unable to resuscitate him.
     Brown’s mother, Shirley Brown, filed suit in 2011, alleging violations of the Fourth and Eighth Amendments.
     A federal judge found that Chapman and Ilain had probable cause to stop Brown and reason to Taser his chest, but upheld the deliberate-indifference claim.
     Brown appealed, and the Sixth Circuit held a hearing in December.
     The appeals court on Friday reversed the probable cause ruling, finding that “plaintiff has submitted evidence that Brown’s headlights were on immediately after the police pulled him over and that the police did not tell him to turn them on.”
     The panel also reversed the Taser-excessive force ruling, as “Brown was not actively resisting or evading arrest.”
     “The facts show that Brown broke away from the officers in order to avoid further injury, that he was standing still at the time Chapman Tasered him, and that therefore Brown was not actively resisting or evading arrest,” the ruling states. “Thus, a jury could find that Chapman’s actions were not objectively reasonable in light of the facts and circumstances confronting him.”
     Melendez deliberately ignored Brown’s struggle to breathe, the ruling states.
     “That Brown ‘continued to actively resist the officer’s [sic] efforts to restrain him up until they placed him in the back of the police car,’ does not foreclose the possibility that Melendez knew Brown needed medical help,” the ruling states. “Accordingly, we reverse the district court’s grant of summary judgment to Melendez on plaintiff’s deliberate-indifference claim.
     Cleveland is also liable on the excessive force claim, the ruling states.
     Brown’s Cincinnati-based attorney, Alphonse Gerhardstein ofGerhardstein & Branch Co., said the family is “excited to finally get its day in court.”
     Rodney’s death is “one of a number of instances of excessive force by the Cleveland Police that occurred before the city entered into the recent consent decree with the Justice Department,” Gerhardstein wrote in an email. “Hopefully this case will help recommit the city to implement the many reforms required by that decree.”
     Cleveland spokesman Dan Williams said the city’s policy is to not comment on pending litigation.
     None of the other defendants responded to emailed requests for comment on Sunday.

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