Citing lack of evidence, judge ends Kayla Moore lawsuit against Berkeley police

About 40 Copwatch supporters, led by Copwatch co-founder Andrea Prichett (left), joined members of the family of Kayla Moore during a 2013 rally about her death (file photo). Photo: Emilie Raguso

The father of a transgender woman who died in 2013, as Berkeley police officers tried to arrest her, failed to provide enough evidence to prove discrimination due to her schizophrenia, a U.S. District Court judge who denied the father’s claim ruled Friday.

Judge Charles R. Breyer had already thrown out the bulk of the case against the city and BPD in 2016, but initially said there could still be a trial in connection with two Americans with Disabilities Act (ADA) questions posed about Kayla Moore’s death by plaintiff Arthur Moore, her father: whether officers “mistook the effects of her disability for a crime,” and whether “they did not reasonably accommodate her disability during the arrest.”

Breyer ruled in favor of the city last week, saying “no reasonable juror could find that Mr. Moore has met his burden of proving that the City failed to reasonably accommodate Ms. Moore, or that it effected a discriminatory arrest.” Breyer granted the city’s motion for summary judgment, which brings the case to an end. In his ruling, Breyer said Moore never explained the facts behind his theory that Kayla Moore had been arrested because of her schizophrenia, or provided evidence to show how officers failed to accommodate her.

Kayla Moore, a 41-year-old Berkeley resident, was in her Allston Way apartment Feb. 12, 2013, when police responded to a disturbance call there. She stopped breathing during a struggle as officers tried to detain her. The Alameda County coroner’s office said Moore — whose given name was Xavier — died due to “acute combined drug intoxication with a contribution from morbid obesity and intrinsic cardiovascular disease.”  The death was ruled an accident.


The family filed a lawsuit in 2014 taking issue with the police response, alleging excessive force and unfair treatment because Moore was transgender. In 2016, Breyer ruled that “The force used – though fatal when combined with an enlarged heart – was reasonable based on what the officers could know at the time.” But he said the ADA questions, related to Moore’s schizophrenia, could proceed to trial.

It was Moore’s roommate who called police the night of her death, and told dispatchers she was “in the midst of a psychotic episode, had done drugs all day, and needed to be taken into protective custody,” the judge wrote. One of the first officers to get to Moore’s apartment spent 15-20 minutes trying to speak with her, but ultimately decided she needed to be taken for mental health treatment. A struggle followed as numerous officers tried to restrain Moore, who ultimately stopped breathing. Police provided emergency medical care, but “Ms. Moore had stopped breathing for good.”

The judge explained in his ruling that the city could only be found liable if officers arrested Moore only due to her schizophrenia, or if officers “caused her excessive injury or indignity by failing to reasonably accommodate her disability” just prior to the arrest. Attorneys for the Moore family argued both theories applied.

The attorneys said Kayla Moore only struggled with police because of her schizophrenia, and that officers should have known that, Breyer wrote. But the judge said police had already decided to arrest Moore so she could be taken to a psychiatric facility — so the struggle itself, whatever prompted it, was not what initiated the arrest.

“Accordingly, as a matter of law, the decision to arrest was not discriminatory,” the judge wrote. “Plaintiff has provided no evidence to support his discriminatory arrest theory.”

What might have been different?

Attorneys for the Moore family said police should have done a number of things differently, all of which could have been “reasonable accommodations” for Moore’s schizophrenia. That included talking with Moore about her medications and mental health; talking amongst themselves about prior interactions with Moore; making sure officers who came later to the apartment knew Moore was having schizophrenic delusions; or waiting until Moore “was no longer delusional.”

The judge explained that, in this type of lawsuit, the burden is on the plaintiff to provide sufficient evidence of unreasonable activity before a trial can be set.


“A bare assertion that the defendant acted unreasonably does not suffice,” Breyer wrote. “A plaintiff must establish that he will be able to present evidence at trial tending to show unreasonableness.”

The judge said he gave the Moore family extra time to provide that evidence, beyond the statements of the officers at the scene — but it was not submitted.

According to the ruling, Moore’s attorneys argued that the officers should have told Moore something different during her arrest, or spent more time talking with her before taking action. But the judge said no evidence had been presented to show this would have made a difference, or upset Moore less, during the 15- to 20-minute conversation BPD had with her.

The attorneys also said police should have called a friend, Edward Sterling, to help Moore calm down. But that friend, according to testimony from Moore’s mother cited by the judge, was in fact a “‘leech’ who was ‘living off’ her and holding her and Arthur Moore ‘for ransom.'” Judge Breyer said police were “not in a position to know anything about Sterling.” The judge thus crossed that off the list, too, as a possible reasonable accommodation.

The judge said the officer had not erred, either, in failing to speak with other officers about their history with Moore.

The plaintiff “is apparently urging the Court to permit a jury to find that officers act unreasonably whenever they fail to consult with colleagues about possible prior experiences with the subjects of potential mental-health holds, whether or not they know of specific interactions that individual has had with the police. They would apparently be required to solicit their colleagues every time they responded to a call,” the judge wrote. “The burdens of requiring officers to consult with the entire police force about their prior experiences whenever they respond to a call outweigh the benefits of doing so.”


Breyer said the plaintiff also argued that police simply should not have made an arrest. But the ADA does not require that, he added.

“Requiring officers to not make an arrest when dealing with a delusional person would indeed ‘fundamentally alter’ the nature of police services,” Breyer wrote. “A rule that police may never arrest someone who is operating under a temporary delusion would severely reduce the tools police have to maintain law and order.”

In essence, the judge wrote, as he went through the various points raised in the lawsuit, no evidence had been submitted to allow “a reasonable juror” to find that officers should have acted differently, or that different choices would have led to a different outcome for Kayla Moore.

The judge said, in closing, that his ruling was not meant to discourage ongoing efforts — by Moore’s family and local activists — to call for reform in how municipalities handle people in mental health crisis. But he said there simply had not been sufficient evidence presented to establish police misconduct, or for a jury to consider the questions raised.

“That Ms. Moore died in police custody, troubling and distressing as that might be,” Breyer wrote, “is not, by itself, evidence of unreasonable conduct on the part of the officers.”

Update, 4:50 p.m. Adante Pointer, the attorney with the John Burris Law office, in Oakland, who represented the Moore family in the case, said there are plans to appeal Breyer’s ruling.

“These issues have not been litigated much in the country,” Pointer said. “We think it’s time that the law be settled and made clear that a person who has mental disabilities must be accommodated by the police.”

He said it was unfortunate the case never made it to a jury, because that would have been the appropriate context for the decision.

Pointer said his office already prevailed once in an appeal, in a San Francisco case, of a Breyer ruling. The appeal made it to the U.S. Supreme Court, then was sent back to San Francisco, where it ultimately was settled on the eve of trial.

“We’re prepared to fight this all the way up to the Supreme Court, just like last time,” he said.

It’s likely to be two years before the appeal hearing takes place, Pointer added.