U.S. District Court rejects Berkeley’s dismissal request for Kayla Moore lawsuit

Gibson Chu/Staff

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SAN FRANCISCOA U.S. District Court judge did not grant the city of Berkeley’s dismissal for a wrongful death lawsuit, alleging that police misconduct led to the in-custody death of Kayla Moore, at the dismissal hearing Friday.

At the Friday hearing, U.S. Senior District Judge Charles Breyer said he did not dismiss the case because he wanted to verify with the evidence whether the involved officers used excessive force or engaged in false arrest. Breyer will review evidence surrounding Moore’s death in greater depth next month. Moore was a 347-pound transgender Black woman diagnosed with schizophrenia who died in February 2013 while in Berkeley Police Department custody.

Breyer tried to determine how the officers who arrested Moore addressed the situation, and whether their actions were appropriate, during the hearing.

“The question is while they may have been wrong in the particular conduct they (acted), was it known to them that they were acting in an improper way in a manner of law?” Breyer said during the hearing. “If they were wrong, are they still (protected)?”

On Feb. 12, 2013, Moore’s roommate called BPD to help Moore, who, according to police reports, was acting erratically and aggressively. Officers later arrested Moore using a warrant for “Xavier Moore” — Kayla Moore’s legal name — despite the warrant being for an individual about 20 years older than Moore.

A coroner’s report initially ruled Moore’s cause of death as a toxic combination of codeine and methamphetamine, with concurrent issues of obesity and cardiovascular disease. Leaked documents from the Berkeley Police Review Commission later revealed that at least one BPD officer, officer Gwendolyn Brown, exercised inappropriate police behavior by placing Moore, who was restrained with two handcuffs and a leg wrap, in a partially face-down position for extended periods of time without monitoring her vital signs.

Adante Pointer, attorney for Moore’s father, who filed the wrongful death lawsuit in February 2014, alleged during the hearing that the involved police officers unlawfully seized, restrained, arrested and battered Moore. Pointer provided statements from forensic pathologist Werner Spitz, who gave independent commentary separate from the coroner’s report.

“(Spitz) says that officers compressed Kayla to a point where (she) had difficulty breathing (due to) oxygen deprivation,” Pointer said. “The officers, in a comply-or-die type of mentality, just completely overlooked any of that which resulted in Kayla’s death.”

During the hearing, Pointer also referred to Brown’s BPD internal affairs statement, in which she stated that she “probably” put her weight on Moore’s shoulder blade. Pointer further alleged that officers not only made the mistake of not realizing Moore was not breathing but also of not removing her handcuffs or flipping her over when officers did realize Moore did not have a pulse, referencing Brown’s deposition.

Berkeley City Attorney Lynne Bourgault, however, argued during the hearing that the officers were entitled to put handcuffs on Moore for the safety of Moore and everyone else around her. Bourgault also alleged that Moore was “not face down” in the prone position, but facing to one side, partially on her side and partially on her stomach, while handcuffed.

“Never was she saying she can’t breathe,” Bourgault alleged during the hearing. “(Officers) did everything as fast as they could … to have this go well. No evidence supports (the plaintiff’s) story.”

Bourgault also said during the hearing that the officers acted in line with what they learned in training and were “reasonable” with their conduct. She also alleged that the officers could not have known when the actions of Moore went “from resisting to breathing for air.”

“It may very well have been that she (was) undergoing distress at the time (and) not that she isn’t in compliance with police officers,” Breyer said during the hearing. “(She was) dealing with the fact that she can’t breathe. Where a person is fighting to breathe, their behavior may be (similar) with the description the officer is describing.”

About 35 people gathered outside the Phillip Burton Federal Building at 9 a.m. for Friday’s hearing, after community members held a vigil and march Tuesday. Holding hands in a circle, the group held a moment of silence for the 41-year-old Berkeley resident, with individual members of Justice 4 Kayla Moore and Berkeley Copwatch speaking about Moore and her influence on the community.

“She is a valued and a beloved member of our community and (we want) to make sure that even though we can’t bring her back, that her family receives some measure of justice, that there is some admission of wrongdoing,” said Reverend Elena Vera, a member of Justice 4 Kayla Moore. “At the very least, (the police department) could apologize. At the very, very least.”

The majority of the hearing focused on the police officers’ treatment of Moore, with little discussion about the warrant used by BPD to arrest Moore.

Breyer will review the case’s evidence again for the upcoming hearing Oct. 17 at 10 a.m. in the Phillip Burton Federal Building. He is set to issue a written ruling at the hearing that will either dismiss the case or move it to trial, or to return with more questions clarifying the BPD officers’ intent and actions.

Contact Gibson Chu at [email protected] and follow him on Twitter at @thegibsonchu.