Berkeley slapped with lawsuit over Kayla Moore’s death

Moore's sister, Maria, and father, Arthur, spoke before the City Council last year. Photo: Emilie Raguso

Kayla Moore’s sister, Maria, and father, Arthur, spoke before the City Council last year. Photo: Emilie Raguso

Berkeley police used excessive force when attempting to arrest Kayla Moore and declined to give her mouth-to-mouth resuscitation when she stopped breathing because they considered her transgender status as something objectionable, according to a lawsuit filed in federal court Wednesday.

At least one Berkeley Police officer who responded to reports of a disturbance at Moore’s apartment at the Gaia Building on Allston Way on Feb. 13, 2013, referred to Moore as “it,” according to the lawsuit.

Police also violated Moore’s civil rights when they pushed to arrest her on an outstanding San Francisco warrant they discovered  for a “Xavier Moore,” according to the lawsuit. While Moore’s birth name was Xavier, the warrant described a man in his 60s. Moore was only 41 and should not have been mistaken for the other Moore, according to the lawsuit.

“The Officers clearly knew that Decedent MOORE was not the person named in the warrant, was not a suspect in any crime and had not been evaluated to determine whether or not he was eligible for a 5150 hold,” read the lawsuit. “Nevertheless, Officer BROWN inexplicably and arbitrarily decided that ‘we might as well take him’ and told MOORE that they were going to arrest him. Decedent MOORE begged the officers to ‘… confirm the warrant …’ prior to arresting him.”

(The lawsuit refers to Moore as him; Berkeleyside refers to Moore as her, which was Moore’s preference.)

Berkeley police have maintained that the warrant for Xavier Moore was legitimate and was in fact for Kayla Moore, despite the age discrepancy.

Oakland attorney John Burris filed the civil rights lawsuit in U.S. District Court in San Francisco on behalf of Moore’s father, Arthur Moore. The suit asks for unspecified damages for lost wages, pain and suffering, and for punitive damages.

Berkeley City Attorney Zach Cowan said Thursday he could not comment on the suit as the city had not yet seen it.

Kayla Moore, from Facebook

Kayla Moore, from Facebook

The suit was filed the same day Moore’s family and local groups disturbed by the Berkeley Police Department’s handling of the situation rallied outside the Gaia apartment building. They then walked over to a meeting of the Police Review Commission, which is scheduled to hear testimony in closed session next week about Moore’s death.

The Alameda County coroner’s office determined that Moore died of “acute combined drug intoxication,” exacerbated by an enlarged heart and obesity. Moore weighed 347 pounds. In 2013, the Berkeley Police Department also released a 348-page investigation which concluded that Moore was in violation of California Penal Code 69, resisting arrest, and that the physical force used by the police to overcome Moore’s resistance and to pursue Moore’s arrest was reasonable.

The lawsuit goes into detail about the interaction Moore had with Berkeley police and differs in some significant ways from the city report. Berkeley police responded to a 911 call for a mental health evaluation around 11:40 p.m. and arrived to find a very agitated Moore. She grew even more agitated after police found the warrant and told her she was under arrest.

Berkeley police have said Moore stepped out of her apartment briefly and, when two officers tried to take her hands, Moore pulled them into the apartment and they all fell down on a mattress. Police then handcuffed her and restrained her legs using a wrap. They rolled Moore over on her side (she had been lying face down) and was still breathing, according to the police version. A few minutes later, she stopped breathing.

Lawsuit suggests higher level of force

The lawsuit suggests a higher level of force on behalf of the police, an “extreme” level of force that led to Moore’s “pain and suffering.” It also suggests that police restricted Moore’s ability to breathe, which contributed to her death.

“Officer BROWN held Decedent MOORE face down on the futon by pressing her body weight into Decedent MOORE’s shoulder blades. Officer TU lay on top of Decedent MOORE’s lower body to prevent him from moving his legs. Officer SMITH also used his body weight to hold MOORE face down on the futon. Decedent MOORE was heard screaming, ‘Get off of me,’ as he desperately struggled to breathe under the combined body weight of the Officers pushing him against the mattress. Decedent MOORE experienced severe psychological and physiological trauma as he helplessly lay face down with his airway restricted, for no legally justifiable reason.”

At some point, Moore stopped breathing. Berkeley police then began compressing Moore’s chest to pump air into her body, but that action only made things worse, according to the lawsuit. None of the seven police officers present, all of whom are trained in emergency first aid, performed mouth-to-mouth resuscitation on Moore, which would have assisted her, the lawsuit reads.

Discriminatory comments alleged

“During the incident, Sergeant Philips and other Officers made discriminatory comments when they pejoratively referred to Decedent MOORE as ‘it’ and made irrelevant inquiries into Decedent MOORE’s gender identification. Plaintiff is informed and believes that Decedent MOORE’s status, as a transgender man, was a factor in the Officers’ decision to refuse to perform CPR properly.”

The lawsuit also alleges that the seven officers involved with Moore’s arrest have engaged in “a repeated pattern and practice of using excessive, arbitrary and/or unreasonable force against individuals including, but not limited to decedent, XAVIER ‘KAYLA’ MOORE.”

The lawsuit also contends that Berkeley was negligent in not retraining police on how to respond to mental health evaluations known as “5150s.” That attitude demonstrates the existence of an entrenched culture and indifference to using proper procedures when dealing with those with mental health problems, the lawsuit claims.

Read the lawsuit.

Related:
Vigil, rally mark anniversary of in-custody death (02.12.14)
Xavier (Kayla) Moore’s death: The timeline (05.06.13)
Coroner, police deliver reports on Xavier Moore death (05.03.13)
Emotional pleas prompt call for Kayla Moore report (05.01.13)
Police union: Should Berkeley have Tasers? (04.02.3013)
Anti-police demonstrators march in downtown Berkeley (03.13.13)
Berkeley Police release statement on in-custody death (02.28.13)
Name released after death in custody, cause unknown (02.22.13)
Man dies after struggle with Berkeley Police (02.13.13)

Berkeleyside publishes many articles every day. To see all our stories in chronological order, and read ones you may have missed, check out our All the News grid.

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  • Guest

    Attorneys like John Burris are why people hate lawyers.

  • Woolsey

    Well, of course. And, of course, our City leaders will be more than happy to pay an exorbitant settlement just because of their congenital PC guilt. Please take this to trial! Let the citizens decide.

  • Completely_Serious

    Fixed it for ya:

    Berkeley City Attorney Zach Cowan said Thursday he could not comment on the suit as the city was busy preparing its settlement offer. He said the city’s policy is to settle all lawsuits with lots of money, regardless of merit, because “you never know what a jury will do around here.”

    Cowan noted that before presenting its settlement offer, his office would pay an outside law firm somewhere between $150,000 to $200,000 for “services related to evaluation, negotiation and settlement.”

    The settlement payment will be delayed until Council, in closed door session, rejects the recommended settlement amount as too little, and increases the payment by $40,000 to $175,000, depending on whether Worthington shows up at that meeting.

  • DisGuested

    The City of Berkeley must under NO circumstances attempt to settle this scurrilous lawsuit.

  • Guest

    They will, though. Because they’re more scared of being called racists than they are of wasting taxpayer money.

  • Physician living in Berkeley

    The American Heart Association clearly recommends “Hands Only” CPR (chest compressions with no breaths) in the 2010 guidelines for the non-medical initial responder. Even with good bystander CPR, the survival rate is 10-15% depending on the source you read, in other words 85-90% of patients still die. (This is of course in contrast to TV and movies where 80% of the patients live after CPR portrayed by the media).
    I continue to be grateful to the police who have a very hard job. They keep us safe from patients who normally may be very nice people but can act dangerously to our community when abusing drugs and alcohol. In fact, other documents show that Moore, morbidly obese weighing over 350 lbs, may have thrown a chair at his girlfriend, recently before the arrest. What if that girlfriend was struck in the head and died? We would be wondering why the police didn’t intervene earlier when there were signs that Moore was acting dangerously.
    Again, I am grateful for the police. They did their job in arresting Moore based on their knowledge of a warrant, which follows the law. They continued to monitor and initiated CPR and called 911 when they noticed Moore wasn’t responsive or breathing. Unfortunately, Moore was in the 85-90% of patients who still die when they have a cardiopulmonary arrest despite immediate CPR.

  • guest

    Similar forecasts were made before and after the Cukor family filed suit against the city. Here verbatim is the lead paragraph of this publication’s report on the disposition of the Cukor’s suit.

    “The family of Peter Cukor, who was allegedly killed by a mentally disturbed man in February 2012 while he waited for police to come to his house, has dropped its lawsuit against Berkeley in exchange for promises to change the questions dispatchers ask those calling during an emergency.”

    Those of us who were informed about California law knew this was the only possible outcome of the Cukor’s suit.

    Here’s an idea. Let let this process play out and see what results before attacking the attorneys on both sides of this case.

  • Anthony

    “At some point, Moore stopped breathing. Berkeley police then began compressing Moore’s chest to pump air into her body, but that action only made things worse, according to the lawsuit. None of the seven police officers present, all of whom are trained in emergency first aid, performed mouth-to–mouth resuscitation on Moore, which would have assisted her, the lawsuit reads.

    Discriminatory comments alleged

    “During the incident, Sergeant Philips and other Officers made discriminatory comments when they pejoratively referred to Decedent MOORE as ‘it’ and made irrelevant inquiries into Decedent MOORE’s gender identification. Plaintiff is informed and believes that Decedent MOORE’s status, as a transgender man, was a factor in the Officers’ decision to refuse to perform CPR properly.”

    I am very confused. Hasn’t CPR been changed to be chest compressions only due to their efficacy in reviving individuals who have stopped breathing?

    http://www.vanderbilthealth.com/heart/30246

    http://www.webmd.com/heart-disease/news/20101005/chest-compression-only-cpr-saves-more-lives

    http://firstaid.about.com/od/cprbasics/i/07_nobreathcpr.htm

    http://www.reuters.com/article/2012/12/20/us-health-cpr-idUSBRE8BJ14W20121220

  • Tony Walnuts

    What if that girlfriend was struck in the head and died? We would be wondering why the police didn’t intervene earlier when there were signs that Moore was acting dangerously.

    Actually we’d be suing the manufacturer of the chair for making it too hard. We’d be watching our City Council try to pass a law taxing chair purchases because they are dangerous, especially to minorities. We’d be accusing someone of racism, sexism, and other -isms. And someone would surely tell someone to “move to Walnut Creek.”

  • Guest

    John Burris’ record of ambulance-chasing and bleeding cities of funds based on false charges of racism speaks for itself.

  • DisGuested

    Yeah, because nothing says “disinterested pursuit of the public good” like hiring John Burris.

  • dsd510

    *her. Misgendering her is not okay, no matter what you think of her or the circumstances of her death. And frankly, even scarier that you’re a physician; I sincerely hope you don’t have any trans patients if you would willfully misgender someone like that.

  • dsd510

    FYI: She was a transgender woman, not transgender man. “Transgender man” means an FTM guy. Also, very disheartened by the fact that people don’t see the clear discrimination by the police in referring to her as “it,” wow – “disrespectful” doesn’t even begin to describe using that word about someone who’s trans.

  • guest

    Hi DisGuested:

    The only comment that you made that I can see is for the city not to settle this lawsuit. I agree with you that they should not. I simply suggested that people let the legal system do its job.

    I’m confused by your reference to “disinterested pursuit of the public good”. Obviously that is not the position or responsibility of the family of the deceased. They are and should be highly partisan in pursuing what I assume looks to them like ‘justice.’

    As to my friend, John Burris, his role is advocacy for the family members of the deceased who think BPD personnel committed actionable torts against their family member, so “disinterested pursuit of the public good” isn’t his role either.

    Oakland PD has a complex and in some ways sordid history. Arguably, some of its problems were caused by our own (Federal) government. But whatever the root causes of OPD’s history of unconstitutional practices, it’s not OK for entities who have the rights and responsibilities of the police to abuse that power. I am glad that John took on and brought to light some of the horrid practices that OPD was found to condone or at least permit or tolerate. I hope some day some of them get fixed.

  • guest

    Notice the heading above that:

    Discriminatory comments alleged
    That is just an allegation by the plaintiffs.

  • southberkeleyres

    I am sorry for the family’s loss and hope they did all they could to keep Kayla healthy by doing by encouraging and supporting Kayla to achieve a healthy body weight and reduce her drug dependency for her health. So easy to “blame” others. Some things are beyond our control despite our best efforts.

  • Physician living in Berkeley

    Yes. I agree. I should have referred to Kayla with the pronoun her.

  • Heather_W_62

    You did refer to her and her, when you referred to her throwing the chair at her girlfriend.

  • Guest

    The only reason anyone ever hires John Burris is to get a payday, not to get justice.

  • guest

    The person who wrote this comment is within his or her rights to resent John Burris and write post expressing that resentment. But why is he or she allowed to have posted this unkind and unfair comment about this family who lost one of it members in the presence of BPD staff?

    The Cukors had the right to ask the question and receive the answer and I don’t recall any comments saying otherwise. Why is this family being criticized for taking the same step? They not only have the right to ask, they have the right to ask using the attorney of their choice.

  • Guest

    The only reason anyone ever hires John Burris is to get a payday, not to get justice.

  • Chris J

    Hmm. Police accused of being insensitive to a transgender person? That they refused to utilize mouth-to-mouth resuscitation? That the bereaved family is blaming the police for the death of their obese, drug-addicted child who went into cardiac arrest? That their is great derision for the attorney representing the family? That citizens of Berkeley are upset that the city might simply cave in and settle out of court using our tax dollars to pay out what appears to possibly be a form of legal extortion?

    Ok, just checking. I wasn’t there so I have no opinion, but would prefer to see the law follow its course rather than paying out beforehand.

  • guest

    “Police accused of being insensitive to a transgender person? That they
    refused to utilize mouth-to-mouth resuscitation? That the bereaved
    family is blaming the police for the death of their obese, drug-addicted
    child who went into cardiac arrest?”

    Correct. Not to be confused with the bereaved family blaming the police for failing to prevent the tragic and unjust death of their thin, heterosexual, white, sober, wealthy husband and father. Calls for the head of the Chief of Police were deafening. That millions would be paid to the victim’s survivors was a given in the minds of local citizens. Criticism of their anonymous Tri-Valley attorney was non-existent.

    “…but would prefer to see the law follow its course rather than paying out beforehand.”

    Based on the other case, this will be done if the law is on the side of BPD as it was in the other case.

  • Louis Mayer

    A significant portion of the lawsuit against the police speaks to an alleged practice and culture of mishandling incidents involving people in crisis. It’s simply not true. In fact, Berkeley’s college-trained police officers have the most experience handling these situations than any other law enforcement agency in the country. It’s not difficult to find days in Berkeley with 10 or more incidents involving people with serious psychiatric conditions or suffering from other crises. Even without the new CIT training, officers know what they are doing. At the same time, the city’s pioneering Mobile Crisis Team works alongside officers to provide resources and professional expertise in handling crisis situations. Sadly, the hours of this team have been cut over the years, lessening their availability to help police. The CopWatch lament that state level psychiatric services have been dramatically cut back is true, and this is the real problem for every city in California. As social services are cut, law enforcement agencies are forced to handle situations that can only be solved “upstream.” How can you criticize the police when their tasks are expanded to include non-criminal justice situations? Bring back Berkeley’s full Mobile Crisis Team services, use the police only as a safety member of the team, and boost county psychiatric services. That would accomplish more than a lawsuit.

  • Frequentshopper

    Do you think suing a police department is a picnic? Retaliation will be rampant!

  • Frequentshopper

    The Nazi officer who dehumanized her by referring to her as it should be fired.

  • guest

    Neither victim should be blamed.

  • Guest

    I disagree. Moore’s decision to mix various kinds of illegal drugs lead directly to her own death. She is the one who deserves to shoulder the blame for her own death, not the officers who intervened to try to protect her roomates from her violent threats and save her life when she went into cardiac arrest.

  • guest
  • Chris J

    I think that the officer referring to Kayla Moore as ‘it’ was insensitive, but firing the officer seems excessive. And anyway, transgender people confuse me in any case depending on how far they’ve gone. Her? Him? I guess it depends on the person’s preference which I am always happy to accede to.

  • guest

    There were and probably still are people who, unlike you and me, make similar statements blaming Peter Cukor for what happened to him. I get your choice to affix blame to Ms. Moore. I simply choose otherwise in both cases.

    In making this choice, I am not implicitly blaming BPD in either case.

  • guest

    >I think that the officer referring to Kayla Moore as ‘it’ was insensitive,

    This is an allegation made by people who were not there during the incident who are hoping to get a payout from the City. There is no recording or actual evidence showing that any member of the Berkeley Police Department actually made those statements.

  • John Freeman

    This is an allegation made by people who were not there during the incident who are hoping to get a payout from the City.

    Of course that is false and obscenely unfair to the plaintiffs.

    You what the source for that allegation is? The department’s own In-Custody Death Investigation. You know who accused Sgt. Phillip’s of referring to Moore as “it” at the scene? Sgt. Phillips.

    There is no recording or actual evidence showing that any member of the Berkeley Police Department actually made those statements.

    Other than the part where Sgt. Phillips tells Sgt. Hong that he made those statements. Other than that there’s no evidence at all, right.

    Here is what Sgt. Phillips said to Sgt. Hong according to the transcript in the department’s own report:

    “I couldn’t tell if it was male or female…for the most part the whole back area and the- and the butt area was exposed and I could see that he was nude. I asked Officer Brown –is it male or female. I know that wasn’t…for me it was in my mind. It’s just- I don’t know who we’re dealing with and –or what we are dealing with and if it is female there’s other, you know, factors at play. So I asked and then she told me it’s a male but it was a uh, pre-op transgender or transsexual or something like that and I said okay.”

  • Jon Crowder

    The problem with freedom of speech on the internet: anyone, with time (a resource), who wishes to take a position against reason, is free to do so. Here it’s rather amusing, rather juvenile. A number of comments constantly reminds us of how obsessed we are with ignoring discrimination. To not know that forever there has been the preferred ones among us in society, who are not as likely to end up dead, in such an humiliating public fashion, would be amusing, were it not so darn tragic. On the other hand, it has been determined, our brains are not fully developed until sometime, perhaps into the mid-twenties. To be sure, race, gender differences, and the obsession with these things, are no more than scapegoats. They can, and are, deployed to distract us from considering how mean we can be, and specifically to the least desired among us, only because we think that we can get away with it. Such persons, as adults, are considered cowards, among the youth, bullies. No matter how much money a lawyer makes (he/she, of whatever type of specie [race] of a human you wish) deserves even more of it, for our sheer stupidity and ignorance. Only the compassionate and intelligent among us can change the rampant idiocy sweeping the internet. Until such time, those with nothing left to say that isn’t race baiting, and so forth, should be simply ignored.
    For, apparently, they cannot help themselves.