SAN DIEGO (CN) — While waiting for his ride in a designated pedestrian pick-up zone outside of a nightclub in 2017, police asked former San Diego Chargers player Michael Lee to move. He did, asked the officers what he was doing wrong, and was taken down in a violent arrest that resulted in a career-ending arm injury.
U.S. District Judge Thomas Whelan found in a 37-page order Friday that a jury could consider the circumstances of Lee’s arrest to be excessive force, denying the city of San Diego’s request for summary judgment and paving the way for the civil rights dispute to go to trial.
Whelan also found the San Diego Municipal Code used as grounds to arrest Lee — which prohibits obstruction of city sidewalks “and makes it a crime for a pedestrian to stop in the middle of an uncrowded sidewalk to answer a cellphone or ask for directions” — is unconstitutionally vague.
The City Attorney’s Office did not immediately respond to a request for comment regarding whether it will rewrite the ordinance for approval from the San Diego City Council.
The City Council is not scheduled to receive an update on the case during its closed session hearing scheduled for Tuesday.
The dispute in the early morning hours on May 28, 2017, happened after Lee, a 6-foot-1, 185-pound cornerback for the formerly San Diego-based Chargers NFL team, was waiting for his friend to pick him up in an area of the Gaslamp District where parking was blocked on the weekends and used exclusively as a three-minute passenger loading zone.
Lee had left Parq nightclub and was waiting in the loading zone when a security guard from a nearby business told Lee they were “clearing the sidewalk” and he needed to leave.
When Lee refused to leave the area where his friend was picking him up, several San Diego Police Department officers who witnessed the exchange asked Lee to move.
Officer Robert Lawyer commented, “so right now we can cite him … we can cite him for being on the sidewalk.”
After the officers asked Lee to move, he complied by moving 10 feet down the sidewalk.
Lawyer told Lee “let’s go dude, off the sidewalk. You gotta move.”
“To be real, what am I doing right here?” Lee asked.
In response, Lawyer grabbed Lee’s right wrist, which he was using to talk on his cellphone, and pulled his arm down while saying “do me a favor, put your hands behind your back,” according to Whelan’s summary of the case and officer-worn body camera footage submitted as evidence.
Four officers wrestled Lee to the ground. When officers pulled him up and put his arm behind his back to arrest him, Officer Darrell Cox testified he heard a “pop.” The entire exchange took place in a matter of 30 seconds, according to Whelan’s order.
Lee was taken to county jail and booked on charges of public intoxication and resisting arrest. The charges were dropped when the City Attorney’s Office declined to prosecute Lee.
After he was released, Lee went to the hospital where an X-ray revealed a fracture in five places along his left humerus, and he underwent surgery two days later, getting a metal plate and 16 screws inserted in his arm.
Lee was dropped from the Chargers’ roster five days after his arrest.
Whelan found that although Lee was charged with public intoxication and resisting arrest, the officers’ intent was to arrest him for “the minor offense” of violating the local ordinance against blocking city sidewalks.
Because body camera footage showed Lee was never hostile or aggressive toward officers and “at worst … asked what he was doing wrong,” Whelan found “a reasonable jury could find the officers unnecessarily created their own sense of urgency” and “could find Lee did not pose a threat and that he had complied with officers’ orders to move before stopping to ask what he was doing wrong.”
Whelan refused to grant qualified immunity to the officers on Lee’s excessive force, negligence and battery claims.
And the judge found that the loitering ordinance — last amended by the city in 1928 to make it less specific — “fails to notify pedestrians about what conduct is prohibited because it is unclear how ‘near’ to a building line or curb line a pedestrian must stand.”
“Because the ordinance fails to combine loitering with some other overt act or evidence of criminal intent, it falls within the group of ordinances invalidated by state courts,” Whelan wrote.
The judge pointed out there is no evidence the city has provided SDPD officers guidance on enforcing the ordinance, leading to it being arbitrarily enforced as in Lee’s case.
“Video appears to show other men and women standing near the middle of the sidewalk before Lee was detained. There is no indication they were cited for violating section 82.0203 or ordered to leave the area,” Whelan wrote.
Lee is represented by San Diego attorney Michael Marrinan.
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