Cops Might Skate in Transgender Death

SAN FRANCISCO (CN) — A federal judge threw out a slew of claims against the city of Berkeley and several police officers over the death of a transgender woman with schizophrenia who died while being arrested in 2013.

U.S. District Judge Charles Breyer said he wanted Friday's summary judgment hearing to focus on the officers' alleged use of excessive force.

Kayla Moore's father Arthur sued the city, its police department and eight officers in February 2014, claiming the police restrained his 41-year-old daughter to death in her Berkeley apartment. His federal complaint also says that at least one officer referred to Moore as "it."

The officers were responding to a call from Kayla's friend John Hayes, who requested mental health assistance for Kayla, who was suffering from a psychotic break, the complaint says.

Police arrived at the apartment and found Kayla acting erratically. They ran her and Hayes' names for warrants, and ended up arresting both of them. Kayla tried to resist and, according to the complaint, six officers held her down. In the ensuing altercation, the complaint says, she fought to breathe.

The complaint says that when the officers realized Kayla had lost consciousness, they removed her handcuffs, sat her up and inexpertly applied CPR, but it was too late.

Breyer said Friday that he planned to focus on whether the officers accused of excessive force are entitled to qualified immunity, which shields government officials from liability for unlawful conduct unless the court finds they violated a person's constitutional rights.

The officers named in the lawsuit are Gwendolyn Brown, Kenneth Tu, Brandon Smith, Brian Mathis, Timothy Gardner, Nikos Kastmiler, Amber Philips and Benjamin Cardoza.

Breyer nixed the bulk of Arthur Moore's civil rights and wrongful death claims as well as the unlawful arrest claim, saying he thought the officers acted appropriately in deciding to arrest Kayla.

"I think the arrest of the decedent was appropriate. How else can I say it?" Breyer said. "Under the circumstances as described, they were simply correct on the law and correct that they wanted to take this person into custody."

He added, "I am going to separate the excessive force and arrest claim, separate out the people who were not involved in the excessive force and look at the excessive force in light of qualified immunity."

Moore's attorney Adante Pointer said he was disappointed that Breyer threw out the arrest claim.

"I haven't seen one case that says if someone is experiencing some type of psychotic break, that that in itself requires they be put in protective custody," Pointer said, arguing that Kayla was at home "not bothering anyone" and hadn't threatened the officers.

"It depends on the psychotic break," Breyer said.

Pointer noted that Kayla had been saying she saw dinosaurs, and that she had been calling people by different names.

Breyer said Kayla's delusions could have escalated and become dangerous.

"The cops don't have to wait around until this person has that type of delusion that then becomes threatening to a loved one in order to put that person into protective custody," Breyer said.

Breyer later added that he would revisit the arrest claim, after Pointer raised the issue that officers may have mistakenly arrested Kayla when they confused her with a warrant for a 60 year-old man. "I'll look at the arrest. I owe you that," he told Pointer.

Deputy City Attorney Lynne Bourgault said Kayla died from a combination of a rare heart condition and complications from heavy methamphetamine use and morbid obesity, exacerbated by her thrashing around.

Pointer said her death was caused by a lack of oxygen stemming from the collective weight of six police officers trying to restrain her with handcuffs.

Kayla weighed 347 pounds.

"I don't think there is any evidence of any mistake they made. He was resisting violently, dragging them into the apartment," Bourgault said, adding, "I am referring to the decedent as a he today . . ."

Before Bourgault could finish her sentence, a collective gasp rose from the gallery packed with throngs of Kayla's supporters, some wearing t-shirts emblazoned with "Justice for Kayla Moore."

"Why don't we refer to the decedent as a she," Breyer said. "The decedent wanted to be considered as a female, and so that's the way we'll do it."

He then said officers are trained to know that they are dealing with circumstances that require special attention.

"The officers would realize they are dealing with someone who weighs approximately 350 pounds. The officers would realize they were dealing with someone who is unable or unwilling to control her decisions, because she appears to be in some sort of psychotic episode. And you can't say to them, 'Oh calm down.' So there can't be any of that. The rational approach to people, to say desist from resisting arrest, doesn't necessarily operate in this context. And police officers know that," he said.

"Given all of that, the question is under those circumstances is a police officer entitled qualified immunity? And I think it's not quite correct to say there's just no evidence out there. I think there is evidence out there to suggest the police may have been wrong in terms of what they did."

Bourgault disagreed.

"I'm not sure what mistake you think they did. They're entitled to put on handcuffs to the person they're putting in custody," she said, adding, "It all happened so fast."

The parties dispute whether the incident lasted 3 minutes or 10 minutes.

Pointer said, "We're describing a situation that everyone here is familiar with. You see a fish flopping around when they're out of their element and can't breathe."

Bourgault said the officers might not have known that in the moment.

"It's a stretch to say that a reasonable police officer would have seen that as distress," she said. "There is nothing that told these officers they should be doing anything differently than they did. She was yelling things, but she never said 'I can't breathe.' They didn't think they were dealing with a subject that couldn't breathe."

To which Pointer replied: "Unfortunately Ms. Moore isn't here to defend herself so we just have the officers saying they did everything they could and didn't do anything wrong. They knew Kayla had a breathing problem, yet they did nothing. This person is literally bucking, trying to get oxygen, trying to survive, and the officers did nothing until it is too late."

Breyer declined to rule from the bench but vacated the upcoming trial.

"It's clear to the court that whichever way I rule, the Ninth Circuit will have the opportunity to address this one way or the other," he said.

Follow @MariaDinzeo

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