Court of Appeal: Criminal Conviction Doesn't Foreclose Plaintiff's Excessive Force Lawsuit Against LA, Officer
"How you act and how police respond are two different issues," the Los Angeles-based Second District Court of Appeal held Monday.
June 01, 2020 at 06:49 PM
3 minute read
A California appellate court on Monday revived an excessive force lawsuit against the city of Los Angeles, its airport authority and a police officer that had previously been tossed because of the plaintiff's conviction for disturbing the peace.
The Los Angeles-based Second District Court of Appeal found Monday that the conviction of limousine driver Aleksandr Kon didn't establish that the officer arresting him had used reasonable force.
"How you act and how police respond are two different issues," wrote Second District Justice John Shepard Wiley Jr. "That is, fighting or challenging someone to fight does not entitle the other to respond with excessive force. Conversely, you can disturb the peace even though the police later beat you up. Their bad response is not a defense to your bad act."
The ruling comes as questions of excessive force and police accountability are front and center in the aftermath of George Floyd's death in Minneapolis and the ensuing protests across the nation.
In the case underlying Monday's decision, Kon pleaded no contest plea to disturbing the peace after initially being charged with resisting arrest after Officer Damien Andrews claimed he was speeding in a Los Angeles International Airport parking lot. According to the decision, Andrews claimed that Kon refused repeatedly after he asked for his driver's license, insurance and registration and that Kon pulled away and resisted after he asked him to put his cell phone down so he could handcuff him.
Kon, meanwhile, claims he was answering a call from a customer, when Andrews ran at him and tackled him. Kon claims Andrews put his knee into his back, hit him and handcuffed him. Kon was taken to the hospital by paramedics.
The court's decision reverses a decision by LA Superior Court Judge Lawrence Cho who had held that allowing Kon's civil claims to move forward would be inconsistent with the criminal conviction. In Monday's decision, Wiley, who was joined in the decision by Justices Elizabeth Grimes and Maria Stratton, concluded that the past criminal conviction had not established that Andrews had used reasonable force.
Kon's lawyers, Sam Helmi-Kabir and Gennady Leonid Lebedev of Lebedev, Michael & Helmi in Studio City, didn't not immediately respond to message seeking comment Monday.
The city defendants and Andrews were represented by Rodolfo Ruiz and Erin Emiko Uyeshima of Vanderford & Ruiz in Pasadena. They, likewise, did not respond to messages Monday.
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