Complaint alleges that Officer Brian Kazimer attacked child in August 2010 incident; City of Cleveland fails to discipline officers involved despite the contrary recommendation of its own Civilian Police Review Board

CLEVELAND, OHIO - Today, U.S. District Judge Lesley Wells of the Northern District of Ohio ordered that Cleveland Police Officers Brian Kazimer and Dan Crisan stand trial on allegations that, on August 16, 2010, Kazimer used excessive force and inflicted emotional distress on Juan Ortiz, a Latino child with Down Syndrome, and that Crisan failed to intervene and protect Ortiz. In doing so, Judge Wells rejected the officers' attempt to avoid trial by filing a motion for summary judgment.

The Complaint alleges that Kazimer violated Ortiz's constitutional rights when he detained him without reasonable suspicion, forcibly handcuffed him, and pinned him to the hood of his father's car, face down, for more than 20 minutes, all while Crisan stood by and watched with indifference. The officers had been informed of a robbery in the vicinity, and detained the 4'9" Ortiz because he happened to be wearing a shirt of the same color as that worn by (but otherwise bore no resemblance to) a much taller, middle-aged white male who had found the stolen wallet on the sidewalk and turned it in.

On November 9, 2010, the City of Cleveland's Civilian Police Review Board recommended that Kazimer and Crisan be disciplined for their roles in the incident. Then Cleveland Police Chief (now Public Safety Director) Mike McGrath, however, failed to act on that recommendation and, despite repeated inquiries, failed to provide an explanation of his inaction to the Ortiz family. In January 2015, a spokesperson for the City claimed pending litigation as the reason for McGrath's inaction-an explanation belied by the nine months that passed between the Review Board's recommendation and the filing of Ortiz's suit.

In holding for the Ortiz family on their excessive-force claim, Judge Wells said, "[t]here is evidence that Officer Kazimer grabbed Juan from behind, pulled him from his mother's arms, and 'slammed' him into the car 'like a football player making a tackle.'" Thus "a rational jury [could] conclude that Officer Kazimer used more force than was reasonably necessary when he slammed and pinned the boy against the car, and handcuffed him, after Juan had already surrendered." Officer Crisan must also stand trial on the excessive-force claim, according to Judge Wells, since there is evidence that he was present during the incident yet failed to intervene and protect Ortiz.

Judge Wells also allowed the Ortiz family's battery, negligence, and emotional distress claims to proceed to a jury, finding among other things that "there is evidence to show that Juan suffered serious emotional injury as a result of an actual physical peril." The officers had argued that their actions were not malicious and that they therefore enjoy immunity from such claims. But citing testimony that Officer Kazimer told Ortiz's father that he was "lucky he didn't shoot [Juan]," and that the officers called Ortiz's mother a "Mexican wetback" and told her to "get the [hell] back to where she belongs," Judge Wells rejected the defense: "the plaintiffs have produced sufficient evidence by which a rational jury could find that the defendants acted with malicious purpose during their encounter with the plaintiffs."

Subodh Chandra, the Ortiz family's lead counsel, said, "The officers who abused Juan may at last be held to account. Even where those who supervise law-enforcement personnel are unwilling-as Cleveland's police leadership seem to be-to discipline officers who are racially and physically abusive, courts can often help 'soften the blow' to victims when injustices occur. Young Juan is going to get his day in court."

The suit, captioned Ortiz v. Kazimer, et al., Case No. 1:11-cv-01521, was filed in 2011 in the U.S. District Court for the Northern District of Ohio.

Chandra and Don Screen of The Chandra Law Firm, LLC, www.ChandraLaw.com, and Anthony Jordan represent the Ortiz family.