Woman shot in face with rubber bullet scores a victory in legal fight with Fort Lauderdale

By Camila Burris, Miami Herald

Over three years after Fort Lauderdale police officer Eliezer Ramos shot a foam rubber bullet into the face of LaToya Ratlieff, a federal judge ruled that the officer’s defense of “just-following-orders” does not afford him qualified immunity from Ratlieff’s civil rights lawsuit against him.

The recent ruling means that Ramos may not enjoy the protection from personal liability that is usually afforded public officials facing civil lawsuits.

In the wake of the killing of George Floyd in Minneapolis and the marches across the country that soon followed, some of which spawned violence, Ratlieff took to the streets of Fort Lauderdale to peacefully protest on May 31, 2020. As she was leaving the rally, Ramos shot a rubber bullet into the crowd, striking Ratlieff just above her right eye.

In May 2022, Ratlieff filed a federal civil rights lawsuit against the city of Fort Lauderdale, the Fort Lauderdale Police Department, Ramos and several other officers. The 36-page complaint alleges that the hard projectile caused “serious and permanent eye damage, neurological injuries, and other directly attributable physical and emotional injuries.”

Ratlieff is alleging violations of the First, Fourth and 14th amendments. She also accuses officers of battery for both the use of impact projectiles and tear gas as well as negligence in the use of impact weapons.

Ratlieff alleges that Ramos fired the direct impact round “in aid of dispersing the crowd of demonstrators,” “to stop a peaceful demonstration,” and “to ensure that crowds of peaceful demonstrators could no longer peacefully practice their First Amendment-protected rights.”

U.S. District Judge Rodolfo Ruiz denied Ramos’ motion to dismiss many of the claims against him, including counts of free speech violation, battery, and negligence.

In his motion to dismiss Ratlieff’s complaint, Ramos argued that he is entitled to qualified immunity from her claim that he violated her First Amendment rights.

Qualified immunity is a legal defense to shield public officials, like law enforcement officers, from liability in private civil actions so long as they did not violate a clearly established constitutional right.

Ramos argued that he is entitled to qualified immunity because it is not clearly established “that following a directive to utilize less-than-lethal force during a protest where rioters w[ere] ‘throwing bottles, rocks, and other non-deadly objects’” violates a plaintiff’s First Amendment rights “in . . . bright line terms.”

Similarly, his fellow officers, Douglas MacDoughall, Robert Dietrich, Paul Cristafaro, Avery Figueras, and Steven Greenlaw, also named as defendants in the amended complaint, argued that it is not clearly established that issuing the aforementioned directive violates the First Amendment.

Ruiz rejected these arguments, finding that directing “subordinate officers to use less-than-lethal weapons to disperse a crowd at a large public demonstration” violates a demonstrator’s First Amendment rights because of the “broader, clearly established principle that peaceful demonstrators have a First Amendment right to engage in expressive activities.”

Ruiz further found Ramos’ distinction that he was following a directive rather than issuing a directive inconsequential because he had sufficient reason to “question the validity of” that order.

Ratlieff’s attorneys, Michael Davis, Stuart Ratzan and Ben Kuehne, provided the following statement: “We are grateful that Judge Ruiz recognized that Detective Ramos’ actions do not meet the standard for qualified immunity. We look forward to taking LaToya’s case to a jury early next year.”

Ruiz’s decision to deny the officers’ request for qualified immunity is not shocking due to the stage of the legal proceedings, according to Joanna Schwartz, a law professor at UCLA and author of the book “Shielded: How the Police Became Untouchable.”

“Relatively few qualified immunity motions are granted during the motion- to-dismiss stage because you need to take the facts as the plaintiff has alleged them in their complaint,” Schwartz said in an interview with the Herald.

Since the lawsuit is still in the discovery process — the formal process of exchanging information between the parties about the witnesses and evidence — the officers may again raise the issue of qualified immunity after discovery is complete during a motion for summary judgment. They can also raise it on what is called an interlocutory appeal, in which the Court of Appeals would assess the issue.

Judge Ruiz did, however, grant the defendants’ requests to dismiss counts for violations of Ratlieff’s Fourth Amendment rights and due process. Specifically, the court found that there was no violation of the Fourth Amendment — which protects people from unreasonable searches and seizures — because the situation did not constitute a “seizure.” Ruiz also dismissed a claim for free speech violations on the part of the city.

The order allows Ratlieff to file a second amended complaint revising her claims.

The Fort Lauderdale Police Department declined to comment on pending litigation.

Ratlieff marched with other protesters to the police headquarters in Fort Lauderdale in the aftermath of George Floyd’s death at the hands of Minneapolis police officers. With trained volunteer marshals present to de-escalate tensions, the rally went on without incident. Organizers closed the event and the crowd dispersed, breaking off into small groups as they headed toward cars parked nearby.

Trouble began when a group of protesters spotted officers lined up in a nearby parking garage and stopped to hold up signs and chant. An officer with a history of use-of-force incidents, Steven Pohorence, walked into the crowd and shoved a kneeling woman in the head, video of the incident shows.

Protesters began throwing water bottles in retaliation.

Police cloaked in riot gear responded with rubber bullets and tear gas.

Pohorence was charged with misdemeanor battery. He was found not guilty by a jury in December 2022.

Body camera footage showed officers shooting at protesters, while exchanging wisecracks with one another.

According to Ratlieff’s lawsuit, the officers gave no dispersal warning, a requirement before deploying “less lethal” munitions and chemical agents for crowd control. While walking back to her car, Ratlieff saw the group of agitated protesters and said she tried to de-escalate the situation in moments between the spraying of rubber bullets and tear gas. Video shows her kneeling on the ground, encouraging other protesters to join her to show the officers that they were peaceful. She held a sign that read: “Stop killing us.”

Ratlieff alleged in her complaint that the police “unlawfully” used impact munitions and chemical agents as part of an effort to impede constitutionally protected rights and that this was done “maliciously and sadistically done to harm and injure those gathered, including the plaintiff.” Ratlieff was coughing, choking on tear gas, and stumbling away when Ramos shot a two-inch, hard projectile from a distance of approximately 30 feet. It struck her in the forehead, fracturing her right eye. She collapsed in a puddle of blood.

The Fort Lauderdale Police Department’s training protocols state officers should only aim for the head and neck if deadly force is warranted. Ramos later told investigators that he was aiming for a man behind Ratlieff who tossed a tear gas canister back at police. Ramos was cleared in an internal investigation into whether there had been misconduct. The city’s police chief, Rick Maglione, resigned amid the controversy.

Qualified immunity is a hotly contested issue. Proponents argue that it is necessary to shield public officials from liability, distraction, and harassment when they are performing their duties. Opponents insist that the doctrine is a barrier to justice for victims of police misconduct.

The death of Floyd, 46, who cried out “I can’t breathe” as his face was pressed to the pavement under the knee of an officer for nine minutes and 29 seconds, resulted in the conviction of former police officer Derek Chauvin for second-degree murder.

It has spawned proposed legislation, called the George Floyd Justice Policing Act, that would limit qualified immunity in addition to other reforms. Efforts to pass the legislation have been unsuccessful, with qualified immunity being a major sticking point.

Src: https://www.miamiherald.com/news/local/community/broward/article276497871.html?ac_cid=DM813702&ac_bid=-1067394581



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