SAN DIEGO (CN) – A police body cam video does not show whether officers digitally penetrated a suspect’s buttocks, so a trial must do so, a California appeals court ruled.
The unanimous three-judge panel reversed a San Diego Superior Court finding for the City of San Diego and two police officers, whom plaintiff Kenneth Simmons, a black man, accuses of excessive force and illegally searching him for crack cocaine.
The Fourth Appellate District Court of Appeal on Jan. 25 vacated dismissal of summary judgment of Simmons’s claim under the Bane Act, a powerful section of California civil rights laws.
On March 17, 2014, San Diego police Officers Carlos Robles and Kyle Williams saw Simmons on his bicycle next to four Hispanic men standing by a park bench, Acting Presiding Judge Judith L. Haller wrote for the appellate panel.
Simmons fled on his bicycle, and Williams tackled him to the ground. Williams and Robles handcuffed and searched him, and found a baggie containing rock cocaine, according to the appellate ruling.
Simmons was charged with possessing a controlled substance, resisting an officer, using a deadly weapon and willfully resisting, delaying or obstructing a peace officer.
Simmons sued the city and the officers in April 2015. He claims the officers used excessive force by punching and kicking him while he was handcuffed, pulling his underwear into a “wedgie” and doing a cavity search without his consent, and that all this was done “in a racially motivated manner.”
In the motion for summary judgment, the officers said they had probable cause to arrest Simmons, were entitled to use force and did not threaten him, other than telling him to stop resisting arrest.
Officer Robles said the park was closed, and that Simmons was riding a bicycle at night without a light. Robles said body camera video shows the offices retrieved the drugs from Simmons’ right front pocket, and they had probable cause to detain him for willfully resisting, delaying and obstructing a peace officer.
Because they had probable cause to detain or arrest Simmons, Robles said, they could use coercion, threats and intimidation, but did not. He said there is no evidence their actions were racially motivated, and that Simmons acknowledged the officers trailed him to tell him he needed to use a light on his bike at night, Haller wrote.
Haller overturned summary judgment only on the said the Bane Act claims.
Although the arrest was lawful, Haller said, the body cam video does not clearly show whether officers used their fingers to penetrate Simmons’ buttocks and retrieve a rock of cocaine.
The body cam shows only that the officers using their gloved fingers to search Simmons’ underwear, and Simmons has an argument of fact that must be tried, the judge said.
Haller affirmed dismissal of claims under the Unruh Act, because Simmons did not show any examples of clear racial profiling. Merely because the police officers are not black and chose to follow Simmons instead of four Hispanic men on foot does not indicate racial bias or racial profiling.
Associate Justices Cynthia Aaron and Joan K. Irion concurred.
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