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HomeMy WebLinkAboutR-85-0246t i J-85-215 2/27/8 5 RESOLUTION NO. 85-246. A RESOLUTION AUTHORIZING THE DIRECTOR OF r FINANCE TO PAY TO ROBERT LINCOLN THE AMOUNT OF SEVEN THOUSAND FIVE HUNDRED DOLLARS ($7,500.00), WITHOUT ANY ADMISSION OF LIABILITY, IN FULL AND COMPLETE SETTLEMENT OF ALL BODILY INJURY, PERSONAL INJURY, PROTECTION LIENS, CLAIMS, DEMANDS AGAINST THE CITY OF MIAMI AND UPON THE EXECUTION OF A RELEASE RELEASING THE CITY FROM ALL CLAIMS AND COUNTER CLAIMS AND DEMANDS. WHEREAS, Robert Lincoln filed a claim against the City of Miami through his attorney, Rick G. Ciravolo for the alleged negligence, false arrest and violation of his civil rights, resulting from an incident involving two City of Miami Police Officers on September 6, 1982, at 2121 North Bayshore Drive, Miami, Dade County, Florida, and; WHEREAS, the above claim has been investigated by the Torts Division of the City Attorney's Office pursuant to Ordinance No. 8417, which creates the City of Miami's Self -Insurance Program and the said office recommends that this claim be settled for the sum of Seven Thousand Five Hundred Dollars ($7,500.00); NOW, THEREFORE, BE IT RESOLVED BY THE COMMISSION OF THE CITY OF MIAMI, FLORIDA: Section 1. The Director of Finance is hereby authorized to pay to Robert Lincoln the sum of Seven Thousand Five Hundred Dollars ($7,500.00) in full and complete settlement of all bodily injury, personal injury protection liens, property damage claims, claims and demands against the City of Miami upon execution of a release releasing the City of Miami from all bodily injury, personal injury protection liens, property damage claims, claims and demands. PASSED AND ADOPTED this 21st day of April , 1985. EST: a Ole RALPH G. ON IE City Clerk Maurice A. Ferre AURI E A. FERRE MAYOR CITY COMMISSION MEETING OF MAR 21 1985 104 ,%Q. 4 4 PREPARED AND APPROVED BY: MARIA J. CEt -RO n Assistant City Attorney APPROVF.E'AS TOAORM AND CORRECTNESS: -LVl.1C'f LVVV City Attorney LAD/GC/MJC/wpc/ab/108 2 85--246 I 3 CITY OF MIAMI. FLORIDA INTER -OFFICE MEMORANDUM 1� TO Honorable,tiaurice A. Ferre and PATE February 20, 1985 FILE PT-82-06 & L-83-46 Members f City Commission SUSJECT Lincoln v. City of Miami, Krasner & Kendrick �i Circuit Court Case #83-7183 FROM Lucia A. Dougherty REFERENCES D/I: September 6, 1982 City Attorney L/I: 2121 North Bayshore Drive ENCLOSURES Miami, Florida Request for Settlement Authority This case involves a 42 year old white man arrested during a domestic dispute at his home on 2121 North Bayshore Drive. He is represented by Richard Ciravolo of Ciravolo & Feldman, P.A.. The amended complaint filed September 15, 1983 against the City of Miami3Officers Dean Krasner and R. Kendrick alleges negligence, false arrest and violation of civil rights. Internal security has sustained a charge of false arrest against Officer Kendrick. This case is set for trial in April of 1985. Facts . On September 6, 1982 Robert Lincoln had attended, with his girlfriend Denyse Miranda, a charity function at Turnberry Isle and returned to his home where apparently Lincoln and Miranda had a disagreement. Possibly Lincoln had struck Miranda and she called the police. The City of Miami field training officer Kendrick and rookie Krasner responded to the call. When the two police officers arrived, Mr. Lincoln was upstairs in his apartment and Ms. Miranda, her two daughters and one of their friends were waiting in the lobby. Ms. Miranda explained to the police officers what had happened and said that she wanted them to get her car keys so that she could go home. The two police officers went up the elevator to Mr. Lincoln's apartment. The security guard at the com- plex had called to inform Mr. Lincoln that the police were on their way up. As the two police officers left the elevator they saw a man coming toward them down the hall. Officer Kendrick addressed him as Mr. Lincoln and Mr. Lincoln responded affirmatively. He was asked for identification by the officers but was belligerent and refused to give the identification. All three proceeded to the elevator to return to the lobby. Officer Kendrick indicated to Officer Krasner that he had run into Mr. Lincoln before while Kendrick was a Florida Highway patrol officer. Kendrick indicated that Mr. Lincoln had given him a rough time at that incident and was a "bad ass" and should be watched. All three arrived in the lobby and Officer Krasner stayed with Mr. Lincoln and Officer Kendrick went to speak with Ms. Miranda again. After a few minutes, Officer Kendrick came back and told Officer 85-'24+6. 1 4 Honorable Maurice A. Ferre and Members of the City Commission -2- Krasner that Mr. Lincoln was under arrest and take him to the car. Officer Krasner assumed for disorderly and/or intoxicated conduct in to do as instructed by Officer Kendrick. February 20, 1985 to handcuff him and that the arrest was public and proceeded During this time, Officer Krasner had been trying to persuade Mr. Lincoln to give up Ms. Miranda's car keys. Officer Krasner began having trouble controlling Mr. Lincoln as they left the lobby and proceeded toward the police car. Mr. Lincoln, who was over six feet tall and probably weighed well over 200 lbs., refused to bend down to get into the police car. Officer Krasner, who is approxi- mately 516" or 5'8" and maybe 175 or 180 lbs., attempted to bend Mr. Lincoln over. Officer Kendrick moved in to help. They tried lifting Mr. Lincoln who was twisting and struggling and finally dropped him. When they dropped him, his face hit the car door and he was kicking at them. Because Mr. Lincoln was kicking, the officers put plastic cuffs on his ankles. To do this they had to put him face down on the ground, remove his boots and physically hog-tie him. Then they were still unable to lift him and get him situated in some sort of position in the car. During this time, Mr. Lincoln was screaming and yelling, calling for a supervisor. Ms. Miranda was also apparently beginning to regret calling the police and appeared very upset by Mr. Lincoln's treatment. Some of the residents from the complex became alerted to this situation and came to the scene, including the well- known Claude Pepper, who is a resident of the building. A supervisor was called to the scene. Sgt. Christopher apparently unarrested Mr. Lincoln at the complex and went back to his apartment to talk to him and give him a chance to quiet down. Mr. Lincoln was then taken by Randle Eastern Ambulance to Cedars of Lebanon Hospital. The medical report indicates that the Plaintiff had been drinking but does not identify to what extent, nor do the medical tests reflect this. Also on the scene soon after this matter were Paul Weber, Claims Supervisor and Steven Edelstein, former Assistant City Attorney, who proceeded to take statements of Ms. Miranda and the three girls with her. The girls' version of the incident pretty much follows what is outlined above. Ms. Miranda has apparently recanted on her story and feels that the police used too much force and that she did not want Mr. Lincoln arrested. One of the security people at the residence, who left that apartment's employ soon after, said that Mr. Lincoln appeared to have provoked the situation and that he did not see any officer strike Mr. Lincoln. Also, he did not see the incident with Ms. Miranda. The other security guard, who probably still works at the residence, will probably say that Mr. Lincoln did not resist arrest but that the police were overly rough. Officer Kendrick was antagonistic and defensive when Internal Security Officer Luis Gonzales took his statement concerning this matter on October 25, 1982. He has since left the City of Miami police force to join the police force in Orlando, Florida. Officer Krasner left the police force before completing his six months proba- tionary term apparently from pressure which started from this incident and kept increasing until he finally resigned. He is currently seeking employment with the Metro Dade Police Department but they have indicated that they will not take him on staff until this matter has been resolved. 8S-246 .1 Honorable Maurice A. Ferre and Members of the City Commission -3- February 20, 1985 Officer Krasner will make a fairly good witness in that he is con- servative in his testimony, but he does appear young and probably strong -headed. Damages The medical bills submitted by Lincoln's attorneys are as follows: 1) Cedars of Lebanon Health Care Center, reports and bill in the amount of $309.65. 2) Randle -Eastern Ambulance Service, bill in the amount of $83.00. 3) Brian Steingo, M.D., reports and bills in the amount of $355.00. 4) C.L.G. Neurodiagnostics, bills in the amount of $666.00. 5) City of Miami Fire Rescue report. 6) Drs. Feltman, Worton & Keusch, bill in the amount of $34.00. While most of the bills were for diagnostic procedures, there were sutures involved on Lincoln's cheek. He still suffers from post concussion syndrome, that is persistent headaches with severe pain episodes and occasional loss of memory. Evaluation The Plaintiff's attorney had initially demanded $25,000 in order to resolve this matter. In that Internal Security of the Police Department had sustained a claim of false arrest against Officer Kendrick, the dam- ages for false arrest are going to include physical injury, mental pain and suffering and damage to reputation. Considering Lincoln's position in the community (as more specifically spelled out in the request for settlement authority), the damage to his reputation may not be insigni- ficant. Although the two police officers were smaller and weighed less than Lincoln, it is probable that a jury will find the police could have used verbal persuasion or less excessive force in placing Lincoln in a police car and may interpret the police officers actions as exces- sive. There is no documented loss of wage but the Plaintiff does pro- motions for charity events and is self employed. Since the Plaintiff's attorney has not provided me with documented loss of wage I have steadfastly maintained that I would offer no more than $7,500 to settle this case. The Plaintiff's attorney has agreed to accept a set amount and I recommend settlement of any and all claims of Robert Lincoln against the City and against Officers Kendrick and Krasner for $7,500. This claim has been investigated by the City Attorney's Office in accordance with Ordinance Number 8417, which created the City of Miami's Self -Insurance Program. The City Attorney's Office recommends that the City of Miami pay on behalf of itself the sum of $7,500 to settle this claim and the 85rZ46> CITY OF MIAMI. FLORIDA INTER -OFFICE MEMORANDUM 70 TFILE Jose R. Garcia -Pedrosa, and AE May 26, 1983 PT-82-OE Members of the Torts Committee & L-83-46 SG6JECT Lincoln v. City of Miami, Krasner & Kendrick Circuit Case # 83-7183 FROM / REFERENCES ulia J. Roberts D/I: September 6, 1982 Assistant City Attorney ENCLOSURES: L/I: 2121 North Bayshore Drive Miami, Florida Request for Settlement Authority and/or Denial Ot Defense This case was filed on March 3, 1983 and involves an incident that occurred on September 6, 1982. Plaintiff did not allege compliance with Florida Statute Section 768.28 notice and therefore I have filed a Motion to Dismiss on behalf of the City. I have not yet appeared on behalf of the police officers, though both have been served but Plaintiff's attorney has indicated he will amend his complaint before I need to answer for the officers. Because this case involves an alleged false arrest and because Internal Security has sustained a charge of false arrest against one officer, I believa we should attempt an early resolution of this matter. Facts Robert Lincoln, 42 years old at the time of this incident, is represented by Gary Kalos of Ciravolo and Feldman, P.A. On the night of the incident, Mr. Lincoln had been at a Turnberry Isle charity function for which he had handled the promotion or advertising. He was with his girl friend Denyse Diane Miranda, who had two young teenage daughters with her and one of their friends. Mr. Lincoln and his date had had a few drinks at the charity function, which had been an all day affair involving a softball game and subsequent dinner. Then they returned to Mr. Lincoln's home at 2121 North Bayshore Drive. Apparently, Mr. Lincoln and Ms. Miranda were having a disagreement and ids. Miranda requested her keys from Mr. Lincoln so that she could drive herself and the girls back to her home in Palm Beach. Mr. Lincoln refused and a slight scuffle ensued in the lobby of the residence complex. Mr. Lincoln appears to have struck Ms. Miranda once or so on her arm and to have bruised her arm by grabbing her roughly. Ms. Miranda called the police and City of Miami field training officer Kendrick and rookie Krasner re- sponded. When the two police officers arrived, Mr. Lincoln was upstairs in his apartment and Ms. Miranda and the three girls were waiting in 85r246 Jose R. Garcia -Pedrosa and -2- May 26, 1983 Members of the Torts Committee the lobby. Ms. Miranda explained to the police officers what had happened and said that she wanted them to get her car keys so that she could go home. The two police officers went up the elevator to Mr. Lincoln's apartment. The security guard at the complex had called to inform Mr. Lincoln that the police were on their way up. As the two police officers left the elevator they saw a man coming toward them down the hall. Officer Kendrick addressed him as Mr. Lincoln and Mr. Lincoln responded offirma- tively. He was asked for identification by the officers but was belligerent and refused to give the identification. All three proceeded to the elevator to return to the lobby. Officer Kendrick indicated to Officer Krasner that he had run into Mr. Lincoln before while Kendrick was a Florida Highway patrol officer. Kendrick indicated that Mr. Lincoln had given him a rough time at that incident and was a "bad ass" and should be watched. All three arrived in the lobby and Officer Krasner stayed with Mr. Lincoln and Officer Kendrick went to speak with Ms. Miranda again. After a few minutes, Officer Kendrick came back and told Officer Krasner that Mr. Lincoln was under arrest and -to handcuff him and take him to the car. Officer Krasner assumed that the arrest was for disorderly and/or intoxicated conduct in public and proceeded to do as instructed by Officer Kendrick. Luring this time, Officer Krasner had been trying to persuade Mr. Lincoln to give up Ms. Miranda's car keys. Officer Krasner began having trouble controlling Mr. Lincoln as they left the lobby and proceeded toward the police car. Mr. Lincoln, who was over six foot tall and probably weighed well over 200 lbs. refused to bend down to get into the police car. Officer Krasner who is approxi- mately 516" or 5'8" and maybe 175 or 180 lbs. attempted to bend Mr. Lincoln over. Officer Kendrick moved in to help. They tried lifting Mr. Kendrick who was twisting and struggling and finally cropped him. When they drooped him, his face hit the car door and he was kicking at them. Because Mr. Lincoln was kicking, the officers put plastic cuffs on his ankles. To do this they had to put him face down on the ground, remove his boots and physically hog-tie him. Then they were still unable to lift him and get him situated in so►ue sort of position in the car. During this time, Mr. Lincoln was screaming and yelling, calling for a supervisor. Ms. Miranda was also apparently beginning to regret calling the police and appeared very upset by Mr. Lincoln's treatment. Some of the residents from the complex became alerted to this situa- tion and came to the scene, including the well-known Claude Pepper, who is a resident of the building. BS-246 Jose R. Garcia -Pedrosa and -3- Members of the Torts Committee May 26, 1983 A supervisor was called to the scene. Sgt. Christopher apparent- ly unarrested Mr. Lincoln at the complex and went back to his apartment to talk to him and give him a chance to quiet down. Mr. Lincoln was then taken by Randle Eastern Ambulance to Cedars of Lebanon Hospital. The medical report indicates that the Plaintiff had been drinking but does not identify to what extent, nor do the medical tests reflect this. Also on the scene soon after this matter, were Paul Weber, Claims Supervisor and Steven Edelstein, former Assistant City Attorney, who proceeded to take statements of Ms. Miranda and the three girls with her. The girls' version of the incident pretty much follows what is outlined above. Ms. Miranda has apparently recanted on her story and feels that the police used too much force and that she did not want Mr. Lincoln arrested. One of the security people at the residence, who left that apartment's employ soon after, said that Mr. Lincoln appeared to have provoked the situation and that he did not see any officer strike ,;Ir. Lincoln. Also, he did not see the incident with Ms. Miranda. The other security guard, who probably still works at the residence, will probably say that Mr. Lincoln did not resist arrest but that the police were overly rough. Officer Kendrick was antagonistic and defensive when Internal Security Officer Luis Gonzales took his statement concerning this .matter on October 25, 1982. He has since left the City of Miami police force to join the police force in Orlando, Florida. Officer Krasner left the police force before completing his six months probationary term apparently from pressure which started from this incident and kept increasing until he finally resigned. He is currently seeking employment with the Metro Dade Police Department but they have indicated that they will not take him on staff until this matter has been resolved. Officer Krasner will rake a fairly good witness in that he is conservative in his testimony, but he does appear young and probably strong -headed. Damages Plaintiff's attorney has forwarded me some medical bills and reports in this matter. As mentioned earlier, Mr. Lincoln was transported by Randle Eastern Ambulance at the cost of $83.UO to Cedars of Lebanon. At Cedars of Lebanon he was checked out in the Emergency Room where x-rays were taken and the laceration on 85-246. k_J �r� Jose R. Garcia -Pedrosa and Members of the Torts Committee -4- May 26, 1983 his right cheek bone was sutured. At that time he complained of tenderness and pain in the right wrist, loose teeth, head pains and tenderness in the left ribs. He returned on September loth to have the sutures removed. The x-rays at Cedars of Lebanon were $34.00. He was also seen by Dr. Brian Steingo, who performed a neuro- logical examination at the cost of $275.00 on September 7, 1982. Mr. Lincoln's complaints were of constant headaches and numbness in the right hand but no nausea or vomiting with the headaches. He also complained of some neck stiffness and discomfort. There was a suture and laceration below his right eye. There was swelling and contusion below the left eye. Scratches were noted on the forehead region. There was some tenderness in the cervical muscles with a slight limitation of movement. There was complaint of tenderness over the left ribs. The doctor diagnosed a closed head injury with post concussion syndrome. He was referred for an EEG and skull x-rays which were all normal. Mr. Lincoln returned to Dr. Steinqo on October 6th complaining of persistent headaches with severe pain episodes in the right frontal region with the occasional loss of memory. The neuro- logical examination was within normal limits but the doctor did find some post traumatic headaches. He gave him a prescription for percodan and asked him to return in four weeks. I do not have any further medical reports. The bill for the second visit was $80.00. The bill for the EEG and x-rays was $666.00. Claimant's medical bills known to date total approximately $1,447.65. Please note that most of these bills were diagnostic procedures such as x-rays and EEG's instead of actual treatment. Evaluation Plaintiff's attorney has relayed to me a demand of $25,000.00 in order to resolve this case. At this time, Plaintiff has not stated a Section 1983 count but he may bring it in as part of his Amended Complaint. Of more importance, is the fact that the Internal Security Department at police station has determined and sustained a claim of false arrest against Officer Kendrick, clearing Officer Krasner. Damages for false arrest are going to include physical injury, mental pain and suffering, and damage to reputation. In this situation, considering Mr. Lincoln's position in the community, as exhibited by his acquaintance with Representative Pepper and his position as promotional manager for 1� 85-246 0 Jose R. Garcia -Pedrosa and Members of the Torts Committee 0 -5- May 26, 1983 a Turnberry charity event, and based upon the fact that at least some of his associates were made aware of this incident through t means other than his publication of the facts, damage to his reputation may not be an insignificant factor in this case. We j do not have documented loss of wages but we do have some documen- tation as to injury. There was a facial laceration, there was obvious swelling and discoloration on the other eye, there was tenderness found on the ribs, pain in the neck and loose teeth. The second claim of excessive force is probably borderline. The claim should be more negligence on the part of the police officers and the conduct they used. Quite frankly, these two police officers were smaller with less weight than the Plaintiff. It is quite probable that a jury will find that the actions they took to restrain Plaintiff and place him in the police car were uncalled for and that they should have called for assistance or used verbal persuasion, instead of trying to physically manhandle Plaintiff into the police car. Finally, we need to consider whether or not the Field Training Officer Kendrick should be cut loose on this action. It is possible that Officer Kendrick, remembering his initial contact with Mr. Lincoln, drew more from his conversations with Mr. Lincoln and Ms. Miranda at the scene of this second incident and assumed that he had more evidence than he actually had, there- fore charging Mr. Lincoln with aggravated battery instead of a ,more minor charge such as public intoxication or disorderly conduct. Although I believe Officer Kendrick's actions could be construed by a jury as being willful, wanton and malicious in his reaction to Mr. Lincoln, I do not believe that there is enough evidence as to that to make it impossible for the City to defend Officer Kendrick in this instance. I believe it is necessary at this point in the case to make an initial and probably final decision as to whether or not to represent Officer Kendrick. Once we undertake the defense of the officer, if we later decide to cut him loose, it will be necessary to obtain outside counsel for both the City of Miami and the officer in order to avoid unethical conflict of interest. Therefore, please advise whether we should deny a defense to the police officer at this time, and probably run the risk of picking up his attorney's fees from private counsel at a later date, or whether we should defend him throughout the case, pending the possible development of more substantial evidence against him. 85-24G Jose R. Garcia -Pedrosa and -6- May 26, 1983 Members of the Torts Committee The Plaintiff's demand for possible settlement of this claim is $25,000.00. I feel the Plaintiff's demand is high, especially concerning Plaintiff's medicals. On the other hand, I do believe that we are probably making an admission against interests when Internal Security releases its findings indicating that Officer Kendrick falsely arrested Mr. Lincoln. In my opinion, we should target a final settlement of this case at $15,000.00 and make an initial offer of $10,000.00. Therefore, I request settlement approval up to $15,000.00 in order to settle this case at this time before further costs are spent on discovery. APPROVE/DISAPPROVE as to the amount of settlement authority and APPROVE/DISAPPROVE the denial of a defense df th police officer specifically. 4� / �•/f"eAl fry ,� • s� Jose R. Garda-Pedrosa"Richard-A. Graddock Gisela Cardonne -'` A bertine B. Gmith i� L'i �r0L- %`�O L Ili jj A tN Gk A/-.' h z A14,-, 9 D At,- IO/'!JL ft I�/�7/�►r ��' hlotr/C. ds}c�.cl2%%7✓�3''�G,arb e!'%d,,+Yv Leon M. Firte Paull Heber T Insurance Supervisor JJR/wpc/ab/216 $6000.00 6-13- $13 ,eft 85-24f