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HomeMy WebLinkAboutR-96-0138i J-96-132 2/6/96 RESOLUTION NO.9 g ` 138 A RESOLUTION AUTHORIZING THE DIRECTOR OF FINANCE TO PAY AWILDA CENTENO, INDIVIDUALLY AND AS PERSONAL REPRESENTATIVE OF THE ESTATE OF FERMIN ALAMEDA, DECEASED, ARNOLDO ALAMEDA, NANCY ALAMEDA, NOEMI GONZALEZ, RAUL MALONADO, EACH INDIVIDUALLY, AND NELLIE GOMEZ, AS NATURAL PARENT AND GUARDIAN OF RODDY ALAMEDA, A MINOR, INDIVIDUALLY, THE TOTAL SUM OF $600,000.00 WITHOUT ANY ADMISSION OF LIABILITY, IN FULL AND COMPLETE SETTLEMENT OF ANY AND ALL CLAIMS AND DEMANDS AGAINST THE CITY OF MIAMI, CALVIN ROSS, EMILIO LOPEZ AND JOHN COLLINS, EACH INDIVIDUALLY AND EACH IN THEIR RESPECTIVE OFFICIAL CAPACITIES AS CHIEF OF POLICE AND OFFICERS OF THE CITY OF MIAMI POLICE DEPARTMENT, IN THE UNITED STATES DISTRICT COURT, SOUTHERN DISTRICT OF FLORIDA, CASE NO. 93-1544-CIV-NESBITT, UPON THE EXECUTION OF A GENERAL RELEASE RELEASING THE CITY OF MIAMI, CALVIN ROSS, EMILIO LOPEZ AND JOHN COLLINS EACH INDIVIDUALLY AND EACH IN THEIR RESPECTIVE OFFICIAL CAPACITIES AS CHIEF OF POLICE AND OFFICERS OF THE CITY OF MIAMI POLICE DEPARTMENT FROM ANY AND ALL CLAIMS AND DEMANDS; ALLOCATING FUNDS THEREFOR, FROM THE SELF- INSURANCE AND INSURANCE TRUST FUND, INDEX CODE NO. 620103-652. WHEREAS Awilda Centeno, individually and Personal Representative of the Estate of Fermin Alameda, Deceased, Arnoldo Alameda, Nancy Alameda, Noemi Gonzalez, Raul Malonado, each individually, and Nellie Gomez, as Natural Parent and Guardian of Roddy Alameda, a minor, individually, through their attorney, have filed claims and lawsuits against the City of Miami, Calvin Ross, Emilio Lopez and John Collins, each individually and each in their respective official capacities as Chief of Police and CITY CoramsIoN MEETING OF FEB 2 9 1996 Resolution No. officers of the City of Miami Police Department, as set forth in Case No. 93-1544-CIV-NESBITT now pending in the United States District Court, Southern District of Florida, for civil rights violations and negligence resulting in the death of Fermin Alameda; and WHEREAS, the above claims and lawsuits have been investigated by the Tort Committee of the City Attorney's Office and the Division of Risk Management pursuant to Ordinance No. 8417, which created the City of Miami Self -Insurance and Insurance Trust Fund; and WHEREAS, said Offices recommend that the total sum of $600,000.00 be paid without any admission of liability in full and complete settlement of any and all claims and demands against each and every of the Defendants in said Case No. 93-1544-CIV-NESBITT, and that said sum of $600,000.00 be paid as follows: Four Hundred Fifty -Thousand Dollars ($450,000.00) within fifteen (15) days after passage of the herein Resolution subject to the receipt of all necessary Court documents; and One Hundred Fifty Thousand Dollars ($150,000.00) on November 1, 1996; and WHEREAS, funds are available from the City of Miami Self - Insurance and Insurance Trust Fund for the payment of said settlement; NOW THEREFORE, BE IT RESOLVED BY THE COMMISSION OF THE CITY OF MIAMI, FLORIDA: - 2 - Section 1. The recitals and findings contained in the Preamble to this Resolution are hereby adopted by reference thereto and incorporated herein as if fully set forth in this Section. Section 2. The Director of Finance is hereby authorized to pay to Awilda Centeno, individually and as Personal Representative of the Estate of Fermin Alameda, Deceased, Arnoldo Alameda, Nancy Alameda, Noemi Gonzalez, Raul Malonado, each individually, and Nellie Gomez, as Natural Parent and Guardian of Roddy Alameda, a minor, individually, the total sum of $600,000.00, in two payments ($450,000.00 within fifteen (15) days after passage of the herein Resolution subject to the receipt of all necessary Court documents and $150,000.00 on November 1, 1996), without any admission of liability, in full and complete settlement of any and all claims and demands against the City of Miami, Calvin Ross, Emilio Lopez and John Collins, each individually and each in their respective official capacities as Chief of Police and Officers of the City of Miami Police Department, in the United States District Court, Southern District of Florida, Case No. 93-1544-CIV-NESBITT, upon the execution of a General Release releasing the City of Miami and all other Defendants from any and claims and demands, with funds therefor hereby allocated from the City of Miami Self -Insurance and Insurance Trust Fund, Index No. 620103-652. Section 3. This Resolution shall become effective immediately upon its adoption. 3 - 96- 138 PASSED AND ADOPTED this 29th day of ebruary 1996. STEP EN P. CLARK, MAYOR ATTEST: WALTER E CITY CLERK RISK MANAGEMENT REVIEW: U FRANK K. ROLLASON, DEPUTY CHIEF CHIEF OF RISK MANAGEMENT DIVISION FINANCIAL AND BUDGETARY REVIEW: R . SURANA t-LV/ SISTANT CITY MANAGER SIST CITY ATTORNEY APPROVED AS TO FORM AND CORRECTNESS: 4 - 96-- 138 TO FROM i CITY OF MIAMI, FLORIDA INTER -OFFICE MEMORANDUM $8 Honorable Mayor and Members of the City Commission A. Quinn Jon s II City Attorne DATE: FILE February 6, 1996 3-96-132 SUBJECT: Settlement: Case No. 93-1544-CIV-NESBITT United States District Court, Southern District Awi�lda Centeno, etc. REFERENCES.- CityCommission Agenda February 29, 1996 ENCLOSURES: (2) The attached proposed Resolution is submitted for Commission consideration concerning the settlement for the above -referenced case. The details of said case are set forth in the attached Tort Memorandum. This item has been submitted to the Agenda Coordinator for placement on the February 29, 1996 City Commission Agenda. W056:BSS 96- 138 1 CITY OF MIAMI, FLORIDA INTER -OFFICE MEMORANDUM A. Quinn Jones, III, Esq., City Attorney and Members of the Tort Committee Law Department/Fisk Management Leon M. Firtel Assistant City Attorney _.A--- January 29, 1996 - _E LT-93-197 . sr Awilda Centeno, Individually and as P.R. of the Estate of Fermin Alameda, et al, vs. �E=E=E»CES City of Miami, et al. ENCLOSURES Case No. 93-1544-CIV-NESBITT CONFIDENTIAL: THIS DOCUMENT IS NOT SUBJECT TO DISCLOSURE AS A PUBLIC RECORD UNTIL SO NOTIFIED TO THE CONTRARY BY THE CITY ATTORNEY'S OFFICE. This document was prepared by the Assistant Miami City Attorney to reflect mental impressions, conclusions, and litigation strategy in pending civil litigation in the above -referenced cases. This document is exempt from Public Records disclosure as an attorney work -product until such time as all litigation and administrative proceedings involving said parties have been concluded. [Section 119.07(3)(n), Fla. Stat. (1991)]. FACTUAL BACKGROUND Shortly after 2:00 A.M. on the morning of August 9; 1992, a fire was discovered burning in a small neighborhood supermarket located at 3814 Northwest 2nd Avenue, Miami, Florida. Various City of Miami Fire units were dispatched to the scene and the personnel assigned to each of those units began working to extinguish the fire. Also dispatched to the scene was a Miami Police Department unit occupied by two officers who will for reasons of their privacy and for other reasons that will become apparent as you read through this settlement memorandum, be referred to as Officer A and Officer B. The police unit was dispatched to the scene to control and direct traffic as needed and to perform other police services as necessary. While the Fire Department personnel were engaged in doing their job, Fermin Alameda interfered with their task by attempting to assist the fire personnel as they tried to enter the building. He was asked to leave but kept on returning, and it was later discovered that in the meantime he had told another onlooker that he was attempting to get into the building to retrieve merchandise which belonged to the grocery store's owner, who was a friend of his. Alameda's repeated returning to the scene and his interference with the Fire Department personnel prompted their calling on Officer A to remove him. CS:QUINN3.D0C 7 96— 138 Officer A directed Alameda to leave the area and go home, but he continued to encroach upon the scene and, after returning at least two times, he became embroiled in a verbal altercation with the Officer. The Officer also claimed he was pushed by Alameda and that he warned him that if he put his hands on him again, he would be arrested. When Alameda attempted to push the Officer once again, the Officer spun him around, in an attempt to gain control of him so that he could be arrested, but Mr. Alameda lost his balance and went down to the ground, where he lay on his belly. While in the course of trying to control Mr. Alameda so as to place him under arrest and at the same time as Alameda was going face and belly down to the ground, Officer A placed his fight knee on the left side of Alameda's lower back so that he would not move and so that the handcuffs could be applied. Officer B, discovering that his partner was engaged in an arrest, came to assist and placed his left knee onto the fight side of Alameda's lower back. The two Officers working together then were able to handcuff him behind his back. They then stood him up and took and placed him into the police car where another arrestee, who had similarly interfered with the fire fighting personnel, had already been placed. It should be mentioned at this point that the civilian witnesses do not corroborate the Officer's testimony with regard to Mr. Alameda pushing the Officer at any time. In fact, their testimony is more in terms of Officer A having suddenly reached out and his having thrown Mr. Alameda to the ground and then Officer A, followed by the second Officer, jumped on his back, doing "drop kicks" with their knees into the lower portion of his body. The fire personnel confirmed that Mr. Alameda did interfere with their efforts but none of them saw the series of events which finally resulted with the Officers having placed him in handcuffs. Once Mr. Alameda was under control, he was placed in the back of the police car. A few minutes later, while the Officers were doing paperwork, the other arrestee called their attention to Mr. Alameda's condition, since he appeared to be in some physical distress. Alameda was checked by a Fire Rescue Officer who was on the scene and it was thought that he was exhausted from the physical altercation that had taken place as a consequence of his arrest, but that otherwise, there was nothing wrong with him other than he was drunk. It was later ascertained that in fact, it had been Mr. Alameda's birthday on that day and that he had been drinking for a number of hours with his friends in the neighborhood. (The amount/extent of his drinking is another matter which is disputed.) Approximately ten to fifteen minutes after Mr. Alameda was initially checked by the Fire Rescue personnel, the second arrestee again brought his condition to the Officers' attention, since at that point it appeared as though Alameda was not breathing. Fire Rescue was summoned and it was ascertained that he was in fact in acute distress. He was removed from the vehicle and treated on the scene, but was later declared D.O.A. at Jackson Memorial Hospital. Fermin Alameda was age 64 at the time of his death. He was five foot, five inches tall and weighed 145 pounds. The Officers testified during the course of their depositions that they thought he was younger and heavier, in that he resisted their efforts and exhibited great strength during the course of their trying to handcuff him and control,him at the scene. 8 cs:QurxNs.Doc 2 96- 138 An autopsy was conducted and the cause of death was given as blunt trauma to chest and abdomen, resulting in contusions of the right back, including a dislocation of the shoulder, lacerations of the liver and multiple fractures of the right eighth, ninth, tenth, eleventh and twelfth ribs posterially (that is, on the back), on the right side. The Medical Examiner testified at the inquest which resulted in "no true bill" being returned against the Officers, that great force was applied to Mr. Alameda's back, although the Medical Examiner would not define the force in any greater detail in terms of multiple blows versus steady and tremendous pressure. PARTIES AND DESCRIPTION OF LAWSUIT The Plaintiffs, who are the Personal Representative and children of the decedent, have filed a multi -count Complaint against the City, Officer A, and Officer B, as well as the former Chief of Police, Calvin Ross. The Counts of the Complaint are as follows: Count I. Section 1983 violation against Officer A, alleging excessive use of force. Count 11. Section 1983 violation against Officer B, alleging excessive use of force. Count III. Section 1983 violation against the City of Miami, alleging policies of negligent hiring, training, and supervision. Count IV. Section 1983 violation against the Chief of Police, alleging promulgation of unconstitutional policies and failure to train and supervise. Count V. Wrongful death action against the City of Miami. The Plaintiffs' group is comprised of five adult children of the decedent and one minor child through his mother, who was the "significant other" of the decedent until approximately a year before his death when they "split up." I have not deposed the minor child, but each of the adult children claim to have had a wonderful relationship with their father. To an extent, I question whether that relationship actually existed with regard to two and perhaps three of the adult children and, that if the relationship did exist, then I question the duration of the relationship because they claim to have been somewhat estranged from Mr. Alameda at various times during the course of their adult life. The adult children are in their thirties and forties. Officer A, prior to the incident, had been employed by the Miami Police Department for 3 years. His record, at the time of hiring, was that he was classified as "marginal" on the psychological tests that were administered at that time, so there was no restriction on his being hired. During the course of his years in the Department, he was involved in a number of control of persons incidents and other arrests but there was nothing of any great significance. He is a body builder and, if anything, the record will disclose that he was an aggressive officer although not one known for brutality. He is still employed today. Officer B's history is of greater concern. Even though he was and is considered to be very mild mannered, he was involved in a number of control of persons incidents and, but for the timing of those incidents, he would have been placed on the early warning system shortly before the Alameda incident occurred. More importantly, Officer B, during the hiring process, was not cs:Quirrrrs.Doc 3 9 recommended for hiring the first time he was considered because of a poor work record and because of admitted marijuana usage. A year later, in late 1984, after he had continued to work as a PSA in an exemplary fashion and certain recommendations were made in his behalf, Officer B was hired as a police officer under circumstances that can only be described as curious if not problematic. EVALUATION Because of the disputed facts which exist as to the methodology of Mr. Alameda's arrest and the process of controlling him, which is "classified" by Plaintiff as an excessive force situation summary judgment in favor of the Officers on the basis of qualified immunity will not be possible. Similarly, insofar as Officer B is concerned, there is a problem resulting from his hiring, and although it is a random situation, it is doubtful that Judge Lenore Nesbitt, before whom the case is pending, would grant summary judgment to the City. Moreover, because of the questions regarding hiring arising from the process as it concerns Officer B, the City may have a liability concern under recent Section 1983 case law (in addition to negligence under state law) since the hiring decision can be traced to the level of a policymaker. Additionally in regard to the liability question, the injuries suffered by Mr. Alameda during the course of his arrest, make it difficult to conclude, that one or both of the officers acted using only reasonable force. Thus, even if the City is extricated from liability, the case may ultimately be "lost" on the basis of the damages awarded against the officers individually (for which the City has always provided "indemnity" in the past). There is, of course, no cap to damages awarded under the civil rights act and it should also be mentioned that attorneys fees would probably be awarded if Plaintiff was successful against either the City or the officer(s). Mr. Alameda was apparently a very good neighbor in that he was given the informal title of "Mayor" of his block. His friends and neighbors will testify that he helped them mow their lawns and repair and paint their homes and was a good man and good father to his children. He had been employed as a carpenter/handyman at hotels on Miami Beach prior to his retirement about three years before his death. He had no criminal record and his children, the Plaintiffs, are for the most part credible in regard to their testimony except as noted above, but my conclusion is a perception that I would find difficult to prove. This is a pain and suffering case and, although there is a limitation on the ability of adult children to recover under Florida law for pain and suffering in regard to Count V of the Complaint, the law in this regard is unsettled and probably broader as concerns claims made under Section 1983. Plaintiffs are represented by Richard Roselli, who is a partner in the Fort Lauderdale firm of Krupnick, Campbell, Malone, Roselli, Buser and Slama, P.A. The firm has recently been the subject of some publicity in light of their success in litigating a number of Benlate cases against F. I. DuPont & Co. and other chemical companies and Mr. Roselli himself has recently been elected 10 MQUINNIDoc 4 9G-- 138 as President of the Florida Academy of Trial Lawyers. The firm has spent a large sum of money in investigating the case and we are far from being ready to try it at this point in time in that there is a great deal more discovery yet to be done and commensurately more time and money yet to be spent (for which the City might ultimately be responsible). j Over the last 10 to 12 years, this office's track record in regard to death claims under Section 1983 has resulted in verdicts and/or settlements ranging between the mid $300,000's to the low $600,000's, although there have been a number of notable exceptions to this range of awards. Also, the range that I have referred to was established prior to the recent anti -police publicity in the two California trials which are of note. Thus, it is likely in my opinion that the jury will find a basis to award damages against the officers, the City, or both. An April trial date has been set, by Judge Nesbitt, but the case is to be mediated on January 30 before retired Circuit Court Judge Jack Turner. Based upon call of the foregoing matters, I am at this point recommending Tort Committee approval of�to $625,000 for purposes of settlement at the mediation pending, of course, Commission approval at a later date. 4.- A. QL CITY Please indicate your comments and approval, or denial, below, S, III CHARLES C. MAYS CHIEF-,�SSISTANT CITY ATTORNEY i CHRISTOPHER-F. KURTZ ASSISTANT'CITY ATTORNEY W • TANT _ TY RNEY 1 DAVID FOR ASSISTANT ATTORNEY C&QUINNIDOC 5 56- 1318 11 i THERESA L. GIRTEN ASSlyr-ANT C� Y _),TT Y 7 DAVID Z ASSISTX f Y �Q - Wdot-�) fjw,. CHIEF FRANK K. ROLLASON RISK MANAGEMENT LMF: cros 12 CS:QUINN3.DOC 6 96- 138