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Police Abuse Claims Headed to Trial

SACRAMENTO (CN) - A jury will decide whether California Highway Patrol officers manhandled a 76-year-old man who suffered from slurred speech and balancing problems due to a stroke, a federal judge ruled.

Harrison Orr sued California, its Highway Patrol, and two CHP officers identified only by their last names - Brame and Plumb - alleging that his arrest violated state and federal law.

The officers claimed they thought Orr was under the influence of drugs.

Because there is a dispute as to whether Orr informed the officers in a non-threatening manner of his disability and inability to comply with their instructions, neither side is entitled to summary judgment, U.S. District Judge William Shubb ruled on Feb. 26.

Shubb summarized the story as follows:

Orr suffered a brain stem stroke in 2006 and mini strokes in June 2013 that left him with facial droop, slurred speech and balancing problems that require him to use a cane.

On Aug. 6, 2013, Orr was pulled over by CHP Officer Brame, who said that Orr appeared to be driving too slowly and making erratic moves. When asked if he had been drinking, Orr informed Brame that he had not. Orr told Brame that he had taken medication for his heart before he had left home.

The parties dispute whether Orr informed Brame that he had suffered a stroke. Orr claims that he repeatedly told the officer about the stroke. Brame claims Orr told him only that he had a neurological condition, but did not recall whether the word "stroke" was actually used.

Orr failed two sobriety tests and Brame noticed that his speech was slurred and his pupils were constricted. A breathalyzer test revealed that Orr had not had any alcohol, but Brame was suspicious that Orr could be under the influence of drugs, so arrested him for driving under the influence.

Although Orr initially cooperated with the arrest, he told officers that he could not be handcuffed because he had problems balancing. Officer Plumb told Brame that they would need to take him down, and then proceeded to punch Orr in his ribs and knocked him to the ground.

The officers handcuffed Orr and a sergeant took him to the CHP office, where an officer completed an hour-long drug-recognition evaluation and determined that he was a "medical rule-out," meaning his condition was due to a medical condition, not to drug use or alcohol.

Orr was arrested for willfully resisting an officer.

Claiming that he suffered from substantial bruising to his body and pain that took six to seven weeks to heal, Orr filed a lawsuit alleging false arrest, excessive force, and other civil rights violations.

Shubb found that the officers are not entitled to summary judgment on most of Orr's claims, because that there were a number of signs that could have led the officers to know that Orr's appearance and behavior resulted from a medical condition and not from drug use.

A jury could conclude "that a reasonable officer would know that plaintiff's 'droopy' face, poor balance, and clumsiness could indicate that plaintiff had suffered a stroke. If it is true that plaintiff asserted that he informed the officers on multiple occasions about his stroke, then his physical symptoms would have corroborated his representations," Shubb wrote.

In addition, Orr's car had a license plate for people with disabilities, which Brame saw when he ran it with the dispatcher. Brame also found Orr's cane in the trunk of his car while he was looking for drugs.

Because it is unclear whether probable cause existed for Orr's arrest, the officers are not entitled to summary judgment on Orr's claim for unlawful arrest.

Orr's excessive force claim - which centers on Plumb punching Orr in his ribs - must also proceed to trial due to the dispute between the parties as to the degree of force used.

Plumb said that he did not hit Orr harshly due to his age, though Orr describes the encounter as Plumb punching him in the ribs and Brame kicking his feet out from under him, forcing him to the ground in a matter of seconds.

Paramedics called to the scene found Orr's condition to be stable, but photos taken of Orr at booking show substantial bruising on his legs and buttocks.

"Whether there was an immediate threat to the officers' safety is also disputed. Plaintiff had been cooperative up to the point at which the officers attempted to handcuff him, which is undisputed. The officers stated that plaintiff clenched his fists like a boxer, and Plumb stated that it 'appeared to [him] that [plaintiff] was going to strike either [him] or Officer Brame,'" Shubb wrote.

Orr insists that he never assumed a menacing position and pointed out that he is an older man with poor balance. He also claims to have told the officers in a "non-threatening" manner that he could not wear the handcuffs because of his balance.

Because a jury could reasonably infer either that Orr might have come around and agreed to the handcuffs without the physical force or that the officers did indeed face a threat, the dispute cannot be resolved at summary judgment, Shubb said.

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