In Brain-Damage Case, Cop Must Tell It to Jury

     CINCINNATI (CN) – Immunity does not shield a police officer after the man he pepper-sprayed and left handcuffed in an open lane of traffic was hit by a car and left brain damaged, the 6th Circuit ruled.
     The April 16 decision affirms the finding of lower court that Jeffrey Kamerer, a police officer in Wells Township, Ohio, did not have reasonable suspicion to search and arrest two men sitting on a guardrail on Christmas night 2011.
     Jimmy Coil – whose estate filed the lawsuit – and boyfriend Barry Starcher were walking home when Officer Kamerer approached them in his police cruiser and asked for their names.
     The two men hesitated, and Starcher says Coil turned for home, at which point Kamerer allegedly jumped out of his cruiser and screamed, “You better do what the f[**]k I tell you when I tell you! You’re going to give me your f[**]king name or I’m going to put you on the ground!”
     Starcher says Coil gave Kamerer a prescription bottle to confirm his ID, and once again began to walk home.
     At that point, Coil was allegedly pepper-sprayed, thrown to the ground and handcuffed.
     Starcher says he was pepper-sprayed next, and remembers “opening his eyes and seeing Kamerer running back to the road and getting hit, along with Coil, by an oncoming SUV.”
     Coil suffered a traumatic brain injury in the wreck and now requires round-the-clock medical care.
     Kamerer – whose testimony on the incident varied greatly from that of Coil – broke several bones and spent over a month in the hospital.
     The officer claimed Coil threw the pill bottle at him, became combative and charged “like a football player” after being asked for an ID.
     A federal judge in Columbus denied Kamerer’s request for qualified immunity after concluding that a jury could find the officer lacked standing to approach the men.
     Taking Starcher at his word, the appellate panel sided against Kamerer.
     “According to Starcher’s account of the evening, Coil never committed a crime or gave Kamerer any reason to think he had,” Judge Jeffrey Sutton wrote for a three-judge panel. “Sitting on a guardrail is not illegal. Doing so at night, whether on Christmas night or any other, does not transform this innocent activity into nefarious conduct. Walking away from an officer without answering his questions or revealing one’s name does not establish reasonable suspicion for a Terry stop.”
     Under the Supreme Court’s decision in Terry v. Ohio, police cannot stop and search a suspect without reasonable suspicion that he is about to commit, is committing or has committed a crime.
     The officer’s differing testimony does not change the analysis, according to the ruling.
     “Whether we believe Starcher or not makes no difference because a jury reasonably could believe him,” Sutton wrote.
     In his appeal, Kamerer alleged that Starcher resembled a suspect wanted by police. The panel rejected this claim because the officer failed to raise it before the lower court.
     Coil’s claim of deliberate indifference against Kamerer will also move forward, and the panel berated the officer for failing to protect Coil once he was in custody.
     “Officer Kamerer took Coil into custody,” Sutton wrote. “He then left him facedown, pepper-sprayed and handcuffed, in the middle of a lane open to traffic. Why he felt the need to leave him in the middle of the street in such a state is difficult to fathom. The area was dark. Coil wore dark clothing. Kamerer had not turned his police car’s regular or flashing lights on. If Coil remained there for any appreciable amount of time, the risk that Coil might get struck by a passing car was painfully obvious.”
     Sutton had little patience for Kamerer’s argument that he was unsure of whether he had placed Coil in the grass beside the road.
     “The obvious difference between asphalt and grass, together with the officer’s failure to check on Coil for over two minutes after he had restrained Starcher, would allow a jury to infer deliberate indifference to the risk he had created,” the opinion states.And while the panel commended Kamerer for attempting to pull Coil from the road once he realized his mistake, it ultimately concluded the act “does not eliminate the possibility that the officer behaved recklessly, as opposed to negligently, in handcuffing Coil facedown in the street.”

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