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Resist: Moore's supporters rally ahead of civil trial

by Christina A. DiEdoardo

A trial is scheduled to begin Monday, November 6 in the death of Berkeley trans woman Kayla Moore.

Thanks to a ruling last October by U.S. District Judge Charles R. Breyer in Moore v. City of Berkeley, the jury's verdict could have an impact far beyond the Bay Area by providing a new way to hold police departments accountable for the deaths of those in their custody. It may also turn out to be a fine example of how revolutions sometimes don't just happen in the streets, but in courtrooms.

According to court papers, the case began February 12, 2013, when Berkeley police officers went to the apartment of Moore, a black trans woman with a history of schizophrenia and other mental illnesses, to do a welfare check.

The Berkeley Police Department was aware of Moore's mental health issues when officers responded to her apartment. After some initial confusion, they confirmed that she was not wanted for any crime. While Moore was experiencing a delusional episode (including what was described later as verbal "rambl[ings] about dinosaurs" and concerns about being "followed by the FBI") she wasn't threatening anyone or herself. Nonetheless, BPD decided to detain her for a psychological evaluation under Welfare & Institutions Code 5150.

That statute imposes some specific requirements as to what police are required to do in these cases, like telling the prospective detainee that they aren't under criminal arrest, but are being detained so they can be taken to a facility for an examination. In cases where the person is detained at home, as Moore was, they are supposed to be allowed to select and take, with officer approval, some personal items and be permitted to call a friend or relative to tell them where they are going.

However, according to court papers, the officers ignored these requirements and simply grabbed Moore's wrists and attempted to handcuff her. A struggle ensued and four officers held down different parts of her body until she could be restrained. Shortly thereafter, Moore stopped breathing and died.

The standard way for the survivors (in this case, Moore's father, Arthur Moore) of those who die in police custody to sue for damages is under 42 U.S.C. 1983, the federal statute that provides relief to those injured "under color of law" (i.e., by government officials like police officers). However, a series of decisions from the 9th U.S. Circuit Court of Appeals and the U.S. Supreme Court over the last several years have made it easier for police officers to claim qualified immunity for their actions and harder for plaintiffs to hold those officers accountable.

Initially, the Moore case was no exception to this trend. On October 14, 2016, Breyer partially granted the city of Berkeley's motion for summary judgment, which dismissed Arthur Moore's Sec. 1983 claims, including those for wrongful death and excessive force against the city and the officers, on behalf of his late daughter.

While the case could have ended there, it didn't, because Breyer also rejected the city's request to dismiss Arthur Moore's claims under the Americans with Disabilities Act. If the jury finds that Kayla Moore was a qualified individual with a disability due to her mental illness, that her actions were a result of that disability (and not an intentional act to resist arrest) and that the BPD failed to accommodate her disability, the city could be financially liable for her death.

Ironically, the BPD has had a policy, which is set forth as General Order T-19 and which instructs its officers how to interact with persons affected by physical or mental disabilities and to comply with the ADA, since January 1, 2000, more than 13 years before Kayla Moore died. Based on the court filings, it appears the officers who detained Kayla failed to comply with it.

Since there's less negative case law on ADA claims versus the police than there is on excessive force, a verdict in favor of the Moore family could have ripple effects far beyond Berkeley. According to a 2015 investigation by the Washington Post, nearly one in four people killed by the police suffered from mental illness. If their families can show the officers violated the ADA, they may be able to obtain damages even if a judge determines the use of force by the police to have been reasonable, which could spark a revolution in finally holding the cops accountable.

Batter up
From 1 to 4 p.m. Sunday, October 22, Soja Mind/Body will conduct a Baseball Bat Self-Defense Workshop at 3015 San Pablo Avenue in Berkeley. The cost is $50 and it's a BYOB (bring your own bat - both steel/wood and wiffle) event.

Got a tip? Email me at christina@diedoardolaw.com .

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