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Court Of Appeals Affirms Ruling Against Cleveland Police Officers Accused Of Using Excessive Force Against Child With Down Syndrome

Court rejects officers' claim to immunity from suit and orders officers to stand trial for brutalizing 16-year-old Juan Ortiz in 2010, and for their malicious and racist conduct towards the Ortiz family

CINCINNATI, OHIO - Yesterday, a panel of the federal Sixth Circuit Court of Appeals affirmed the ruling last summer of U.S. District Judge Lesley Wells, of the Northern District of Ohio, that ordered Cleveland Police Officers Brian Kazimer and Dan Crisan to stand trial for physically assaulting then 16-year-old Juan Ortiz in 2010. Judge Wells found that the teenager, who stood 4' 9" tall at the time, weighed barely 100 pounds, and suffers from Down Syndrome, may well have been subjected to excessive force and caused to suffer emotional distress when the much larger 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.'" A jury, Judge Wells held, must decide the excessive-force issue.

The Court of Appeals agreed that, "[u]nder the plaintiffs' record-supported version of the facts, a jury could conclude that Kazimer used excessive force in seizing Juan." The Court considered the testimony of witnesses who described Kazimer as using his bodyweight-more than double that of Ortiz-"to pin Juan against the hot vehicle" for 15 minutes even though Ortiz "was not making any effort to resist" and was "crying out in pain." "We have held, not surprisingly, that when an officer slams a non-violent and capitulating suspect against a vehicle, that crosses the line between reasonable and excessive force ... A reasonable officer would have known better."

Crisan, too, must stand trial for failing to prevent the harm to Ortiz. "He observed that the boy was not moving or resisting in any way. And he heard the boy's cries of pain ... Yet Crisan did not 'attempt[] to prevent' the force and, worse, added ethnic slurs to the mix."

Kazimer's actions may even have been malicious, according to the Court. "He ignored the obvious chance that his actions were unjustifiably causing the boy serious harm ...; he could see that Juan had surrendered and could hear his cries of pain yet continued to use force. His alleged curses and comments, such as '[you're] lucky [I] didn't shoot him," may even go beyond recklessness to maliciousness" (emphasis in original).

The Civilian Police Review Board had recommended in November 2010 that Officers Kazimer and Crisan face discipline for their actions. But as of now the City has failed to act on that recommendation. Nevertheless, the Ortiz family is gratified that, because of the new ruling, they will have their day in court. "Finally," Ortiz's father stated, "we will be able to hold the officers accountable for hurting young Juan and for hurling racist slurs at our family-even though city officials continue to refuse to hold them accountable."

The suit, captioned Ortiz v. Kazimer, Case No. 1:11-cv-01521, was filed in 2011 in the U.S. District Court for the Northern District of Ohio. Attorneys Subodh Chandra, Donald Screen, and Ashlie Case Sletvold of The Chandra Law Firm, LLC, www.ChandraLaw.com, and Anthony Jordan represent the Ortiz family.

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