Lieberman v. City of Los Angeles CA2/1 ( 2013 )

Filed 12/26/13 Lieberman v. City of Los Angeles CA2/1
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION ONE
B. JAMES LIEBERMAN, B243466
Plaintiff and Appellant, (Los Angeles County
Super. Ct. No. SC112186)
v.
CITY OF LOS ANGELES et al.,
Defendants and Respondents.
APPEAL from a judgment of the Superior Court of Los Angeles County. Norman
Tarle, Judge. Affirmed.
______
Law Offices of Gary S. Casselman, Gary S. Casselman and Danielle Leichner
Casselman for Plaintiff and Appellant.
Michael N. Feuer, City Attorney, Amy Jo Field, Supervising City Attorney, and
Blithe S. Bock, Deputy City Attorney, for Defendants and Respondents.
______
B. James Lieberman appeals from the judgment entered after the trial court
granted summary judgment for the City of Los Angeles and four Los Angeles Police
Department (LAPD) officers (collectively, defendants) in his action against them
for violation of Civil Code section 52.1, subdivision (b), battery and negligence.
Lieberman contends triable issues of disputed material facts precluded summary
judgment. We disagree and thus affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
1. The Complaint
On April 11, 2011, Lieberman filed an action against the City of Los Angeles,
two police officers and Doe defendants alleging causes of action for violation of
Civil Code section 52.1, subdivision (b), battery and negligence. According to the
complaint, on or about May 12, 2010, Lieberman, “a senior citizen, was a U.S. census
worker, acting in the capacity as [a] census numerator, and at all times relevant hereto
had proper identification badge, vehicle placard(s) and other census issued materials
clearly identifying him as such.” About 1:30 p.m., Lieberman sat inside his vehicle
reviewing paperwork outside the home he was scheduled to visit next when, “[w]ithout
reasonable suspicion to detain or probable cause to search or arrest, . . . police officers . . .
point[ed] their guns at him and ordered him to exit the vehicle with his hands up.”
Lieberman complied and identified himself as a census worker. Lieberman was
handcuffed in an “unreasonably tight manner” and “exclaimed in pain” when a “male
officer removed the handcuffs . . . .” Lieberman was “told that he was stopped because
someone had complained that a person was knocking on doors, ringing doorbells, looking
in windows and/or walking onto driveways in the Beverlywood, area of Los Angeles,
though this was not sufficient probable cause or reasonable suspicion to seize [him].”
Lieberman sought compensatory, special and punitive damages, as well as attorney fees
and costs pursuant to Civil Code section 52.1, subdivision (h), based on his cause of
action under that statute. Lieberman amended his complaint, substituting in four police
2
officers as Doe defendants, and later dismissed the action without prejudice as to the two
police officers originally named in the complaint.1
2. The Summary Judgment Motion and Opposition
Defendants moved for summary judgment, arguing that Lieberman’s detention
was objectively reasonable based on a reasonable suspicion of burglary and did not
convert into an arrest requiring probable cause. Defendants also argued that handcuffing
Lieberman was objectively reasonable under the circumstances, as was the use of force
applied in the handcuffing. Lieberman opposed summary judgment, contending that
triable issues of material fact existed as to whether his detention amounted to an arrest
requiring probable cause and the use of force was excessive.
3. The Trial Court’s Ruling
The trial court granted the motion for summary judgment. It concluded that, as a
matter of law, the police officers detained Lieberman pursuant to a valid “Terry-stop” and
did not affect an arrest of him. It then determined that no triable issue of material fact
existed as to the reasonableness of the detention. According to the court, the officers
were informed of “a 911 call about an attempted residential burglary. [The officers]
responded with guns drawn and immediately handcuffed [Lieberman]. Within five to
25 minutes, they were satisfied that [Lieberman] was merely a census worker, and they
removed the handcuffs. After another twenty minutes, during which time the officers
talked to the 911 caller and also to [Lieberman], they released him. While [Lieberman’s]
shoulder and wrist injuries are an unfortunate result of [the] activity, and while it is
possible [the officers] could have, in hindsight, used less force, the Court cannot find
triable issues of material fact with respect to the force used in the case.” The court
entered judgment for defendants. Lieberman filed a timely notice of appeal.
1
The four police officer defendants are Officers Jeannette Garcia, Antonio Lacunza,
Richard Ballesteros and Andre Rodriguez.
3
DISCUSSION
1. Standard of Review
A trial court must grant a summary judgment motion when no triable issue exists
as to any material fact and the moving party is entitled to judgment as a matter of law.
(Code Civ. Proc., § 437c, subd. (c).) We independently review the trial court’s decision,
“considering all of the evidence the parties offered in connection with the motion (except
that which the court properly excluded) and the uncontradicted inferences the evidence
reasonably supports. [Citation.] In the trial court, once a moving defendant has ‘shown
that one or more elements of the cause of action, even if not separately pleaded, cannot be
established,’ the burden shifts to the plaintiff to show the existence of a triable issue; to
meet that burden, the plaintiff ‘may not rely upon the mere allegations or denials of its
pleadings . . . but, instead, shall set forth the specific facts showing that a triable issue of
material fact exists as to that cause of action . . . .’ [Citations.]” (Merrill v. Navegar, Inc.
(2001) 26 Cal. 4th 465, 476-477.)
2. Summary Judgment Was Proper
a. The detention issue
Lieberman contends the trial court erred by summarily resolving his cause of
action for violation of Civil Code section 52.1, subdivision (b)2, because, at a minimum,
triable issues of material fact exist as to whether his detention, which he concedes was
lawful, amounted to an illegal arrest for which the police officers lacked probable cause.
“The federal Constitution’s Fourth Amendment, made applicable to the states
through the Fourteenth Amendment, prohibits unreasonable seizures. Our state
Constitution includes a similar prohibition. [Citation.] ‘A seizure occurs whenever a
2
Civil Code section 52.1, subdivision (b), provides, “Any individual whose exercise
or enjoyment of rights secured by the Constitution or laws of the United States, or of
rights secured by the Constitution or laws of this state, has been interfered with, or
attempted to be interfered with, [by threats, intimidation, or coercion,] may institute and
prosecute in his or her own name and on his or her own behalf a civil action for damages,
including, but not limited to, damages under Section 52, injunctive relief, and other
appropriate equitable relief to protect the peaceable exercise or enjoyment of the right or
rights secured.”
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police officer “by means of physical force or show of authority” restrains the liberty of a
person to walk away.’ [Citation.]” (People v. Celis (2004) 33 Cal. 4th 667, 673 (Celis).)
A seizure amounting to an arrest requires that the police officer have probable cause to
justify his or her actions. (Gallegos v. City of Los Angeles (9th Cir. 2002) 308 F.3d
987, 990 (Gallegos).) In Terry v. Ohio (1968) 392 U.S. 1, 9 (Terry), the United States
Supreme Court “‘created a limited exception to th[e] general rule’ that police
detentions require probable cause, wherein ‘certain seizures are justifiable under the
Fourth Amendment if there is articulable suspicion that a person has committed or is
about to commit a crime.’ [Citation.] Under Terry and its progeny, the Fourth
Amendment allows police to conduct a brief, investigatory search or seizure, so long as
they have a reasonable, articulable suspicion that justifies their actions. The reasonable
suspicion standard ‘is a less demanding standard than probable cause,’ and merely
requires ‘a minimal level of objective justification.’ [Citations.]” (Gallegos, at p. 990.)
“Thus, an officer who lacks probable cause to arrest can conduct a brief investigative
detention when there is ‘“some objective manifestation” that criminal activity is afoot and
that the person to be stopped is engaged in that activity.’ [Citations.]” (Celis, at p. 674.)
“There is ‘no bright line rule for determining when an investigatory stop crosses
the line and becomes an arrest.’ [Citation.] Rather, whether a police detention is an
arrest or an investigatory stop is a fact-specific inquiry, [citation], guided by the general
Fourth Amendment requirement of reasonableness, [citation]. This inquiry requires us to
consider ‘all the circumstances surrounding the encounter’ between the individual and the
police, [citation], ‘by evaluating not only how intrusive the stop was, but also whether the
methods used [by police] were reasonable given the specific circumstances,’ [citation].”
(Gallegos, 308 F.3d at p. 991.) “Because an investigative detention allows the police to
ascertain whether suspicious conduct is criminal activity, such a detention ‘must be
temporary and last no longer than is necessary to effectuate the purpose of the stop.’
[Citations.]” (Celis, supra, 33 Cal.4th at p. 674.) The “‘focus [is] on whether the police
diligently pursued a means of investigation reasonably designed to dispel or confirm their
suspicions quickly, using the least intrusive means reasonably available under the
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circumstances.’ [Citations.] Important to this assessment, however, are the ‘duration,
scope and purpose’ of the stop. [Citation.]” (Id. at p. 675.)
“With respect to duration, the United States Supreme Court has said that ‘“the
brevity of the invasion of the individual’s Fourth Amendment interests is an important
factor in determining whether the seizure is so minimally intrusive as to be justifiable on
reasonable suspicion.”’ [Citation.] [¶] With regard to the scope of the police intrusion,
stopping a suspect at gunpoint, handcuffing him, and making him sit on the ground for a
short period . . . do not convert a detention into an arrest. [Citations.] [¶] Of significance
too are the facts known to the officers in determining whether their actions went beyond
those necessary to effectuate the purpose of the stop, that is, to quickly dispel or confirm
police suspicions of criminal activity. [Citations.] Although a routine traffic stop would
rarely justify a police officer in drawing a gun or using handcuffs, such actions may be
appropriate when the stop is of someone suspected of committing a felony.” (Celis,
supra, 33 Cal.4th at pp. 675-676.)
As relevant to the detention question, according to the undisputed facts here, on
May 12, 2010, Officers Garcia and Lacunza, while on patrol in West Los Angeles,
received a radio broadcast from LAPD communications, based on a 911 call from a
Beverlywood resident. The broadcast stated, “‘West LA units, 459 suspect there now,
9722 Alcott, 9722 Alcott, suspect vehicle is a white BMW still outside, suspect is
male white, 60 years, white hair, beige shirt, short sleeve shirt, Code 3, NRD857.”
The officers interpreted the call as one reporting a residential burglary, as Penal Code
section 459 is the burglary statute, and responded, according to the communication,
Code 3, which requires officers to respond as quickly as possible with lights and sirens.
Within minutes, the officers heard a second broadcast, which stated, “‘West LA units
responding to Alcott Avenue, suspect attempted to gain entry through the mail slot,
suspect is still in front of location inside the white BMW, has handicap[] tag in the
mirror, suspect is unknown to the victim, victim is still inside location.’” A third
broadcast came minutes later, reporting, “‘Suspect vehicle is now driving towards
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Beverwil. Suspect is making a left on Beverwil from 9722 Alcott. Suspect vehicle is a
white BMW with a handicap[] placard in the mirror.’”
Officers Garcia and Lacunza located the suspect, who was identified as
Lieberman, as reported by LAPD communications. Lieberman was ordered out of his
vehicle at gunpoint and detained while the 911 call was investigated. Officers Ballesteros
and Rodriguez, along with two other officers, arrived on the scene and assisted with the
investigation. Lieberman was placed in handcuffs by Officer Garcia, who explained that,
“based on the type of radio call that we were responding to—and . . . burglary suspects
could have . . . weapons and tools [that] can be used as weapons—yeah, technically he
was a [possible] threat.” Based on the LAPD communications, the officers considered
that they were responding to “a high-priority crime” as “a high risk traffic stop.”
Lieberman remained in handcuffs for five minutes (according to the accounts of
Lieberman and Officer Garcia) to 25 minutes (according to Officer Ballesteros whose
primary involvement was interviewing the 911 caller). Lieberman identified himself as
an enumerator for the United States Census Bureau, showed officers his credentials and
told them he was visiting homes of people who had not turned in their census material.
According to Lieberman, his job was to knock on doors in an attempt to deliver
notifications to those at the homes he visited; if no one answered, he left the notifications
on the front porch. Two officers went to the residence of the 911 caller and interviewed
her. According to Officer Ballesteros, who was the primary interviewer, the caller
reported that a man had been “pounding on [her] door, knocking on the door. She didn’t
know who it was. And he was grabbing the doorknob trying to get inside the door.
And . . . he put his hands inside the mail slot . . . . She seemed very fearful for her
safety . . . .” Based on this report and the officers’ contact with Lieberman, Lieberman
was unhandcuffed and released soon thereafter. Officer Ballesteros explained to
Lieberman that that “there had been a call of a possible burglary and that he matched the
description” of the suspect.
These undisputed facts demonstrate as a matter of law that Lieberman was legally
detained not, as he contends, arrested without probable cause. Based on the LAPD
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communications, the officers understood they were responding to a report of a burglary,
a possible violent and serious violent felony (Pen. Code, §§ 667.5, subd. (c)(21),
1192.7, subd. (c)(18)), or attempted burglary, a possible serious felony (id. at § 1192.7,
subd. (c)(18) & (39)), with a suspect who had left the location. Lieberman was
handcuffed from five to 25 minutes. He was released as soon as officers had completed
their investigation. Given the nature of the LAPD communications, handcuffing
Lieberman for no more than 25 minutes did not, as Lieberman suggests, transform the
detention into an arrest. The officers used the detention to “quickly dispel . . . police
suspicions of criminal activity.” (Celis, supra, 33 Cal.4th at p. 676.)
Contrary to Lieberman’s contentions, his age of 78 years old (not 60 years old as
reported by LAPD communications—although he appeared much younger than his actual
age) and immediate identification of himself to the officers as a census worker did not
create triable issues of material fact on the detention question. Lieberman assumes that,
despite communications to the officers of a burglary or attempted burglary, they should
have concluded their detention of him once they learned that he was 78 years old and a
census worker and their failure to do so converted the detention into an arrest. But such
facts did not eliminate the possibility that a felony offense had been committed. Indeed,
the officers did account for Lieberman’s age because, although they handcuffed him, they
elected under the circumstances not to require him to lie prone on the ground. In total,
the detention was of relatively short duration, narrowly tailored to address the reports
received by the officers and in line with the potential crimes being investigated.
This case is similar to Gallegos, supra, 308 F.3d 987, in which the Ninth Circuit
concluded on summary judgment that a detention did not transform into an arrest. In that
case, “[r]esponding to a 911 call and mistakenly believing [the plaintiff] to be a burglary
suspect, police pulled him over, ordered him out of his truck at gunpoint, handcuffed him,
and placed him in the back of a patrol car. Police then brought [the plaintiff] to the scene
of the reported incident, where it was confirmed that he was not the suspect. He was
returned to his truck and released less than an hour after he was initially detained.”
(Id. at p. 989.) The plaintiff argued that “his detention went beyond a valid investigatory
8
stop” because “he was ordered from his truck at gunpoint, . . . handcuffed, . . . put in the
back of a patrol car, . . . detained for between forty-five minutes and an hour, and . . . less
intrusive options were available to police.” (Id. at p. 991.) Viewing the facts of the
detention “in the context of the totality of the circumstances,” the Ninth Circuit rejected
the plaintiff’s argument. (Ibid.) According to the appellate court, summary resolution of
the plaintiff’s constitutional claims was proper because “[t]he whole point of an
investigatory stop, as the name suggests, is to allow police to investigate, in this case to
make sure that they have the right person. For police to draw their guns in ordering [the
plaintiff] from the truck, when unsure if he was armed; for police to handcuff [the
plaintiff] in the back of a . . . patrol car, when unsure of who he was; and for police to
bring him back to [the scene of the reported criminal activity]—this was not, under the
circumstances, an unreasonable way of finding out if [the plaintiff] was the person they
were looking for. Our cases have made clear that an investigative detention does not
automatically become an arrest when officers draw their guns, [citation], use handcuffs
[citations] . . . . Viewed in context, [the officers’] conduct was reasonable.” (Id. at pp.
991-992.)
The Ninth Circuit concluded, “Of course, it is unfortunate that an innocent man, in
the wrong place at the wrong time, was inconvenienced for up to an hour. But by the
same token, this investigative stop worked as it should. The detention was brief,
calculated solely to make sure they had the right man, and resulted in [the plaintiff’s]
prompt vindication. ‘Terry accepts the risk that officers may stop innocent people.
Indeed, the Fourth Amendment accepts that risk’ as well. [Citation.] Courts cannot
prevent mistakes such as this from taking place; we can only ensure that mistakes are
kept to a minimum by requiring officers to act reasonably, for articulable reasons, and not
on a hunch.” (Gallegos, supra, 308 F.3d at p. 992.) As in Gallegos, the officers did not
act on a hunch. They responded to LAPD communications of a 911 call reporting a
burglary or attempted burglary, detained the person identified by the caller, acted within a
short amount of time to dispel the possibility of criminal activity based specifically on the
communications they had received and then released him. Such an investigative stop
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under the totality of the circumstances, as a matter of law, was a detention based on
reasonable suspicion that did not amount to an arrest without probable cause.
Lieberman’s reliance on In re Antonio B. (2008) 166 Cal. App. 4th 435 is
misplaced. According to Lieberman, that case demonstrates that “handcuffing a suspect
did not convert a detention into an arrest, such as when at the time of the detention, the
officer had a reasonable basis to believe the detainee presented a physical threat to the
officer or would flee,” and he presented no such “danger.” The physical threat or
possibility of fleeing described in In re Antonio B., however, was merely a summary of
certain examples of when a handcuffing did not render a detention an arrest. Other
examples included when “police officers conducted the stops based upon reports of
violent felonies by persons matching the descriptions of the detained suspects and/or
their vehicles [citations], or reports indicating that the suspect was armed [citations]
or that the suspect was seen leaving the scene of an attempted burglary [citation].”
(Id. at p. 441.) The appellate court in that case held that detention of the suspect
constituted an arrest requiring probable cause because “no evidence . . . suggest[ed] that
the officers had any basis to believe that [he] posed a danger to them or that handcuffing
him was necessary to effectuate the purpose of the stop, i.e., to determine whether [he]
had been smoking marijuana.” (Id. at p. 442.) Unlike In re Antonio B., this case fits into
the examples in which handcuffing did not render a detention an arrest because, at the
time of Lieberman’s detention, the officers had reports of a burglary or attempted
burglary, crimes in which undisputedly suspects often have weapons or tools that they
can use as weapons, by a man matching Lieberman’s description who had left the scene.
In re Antonio B. thus does not support Lieberman’s suggestion that handcuffing is
justified in a detention only when the suspect constitutes a physical threat or a possibility
exists that he may flee.3
3
Because Lieberman’s detention was proper, and not a wrongful arrest without
probable cause, we need not decide whether an unlawful arrest, standing alone, would
support a violation of Civil Code section 52.1, subdivision (b).
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b. The excessive force question
Lieberman also contends that summary resolution of his battery and negligence
causes of action was improper because triable issues of material fact exist as to whether
the police officers used excessive force by handcuffing him.
“[A] police officer must have control over the manner and means of making an
arrest or detention.” (Edson v. City of Anaheim (1998) 63 Cal. App. 4th 1269, 1273
(Edson).) “[C]laims [of excessive force] are properly analyzed under the Fourth
Amendment’s ‘objective reasonableness’ standard . . . .” (Graham v. Connor (1989)
490 U.S. 386, 388 (Graham).) “Determining whether the force used to effect a particular
seizure is ‘reasonable’ under the Fourth Amendment requires a careful balancing of ‘“the
nature and quality of the intrusion on the individual’s Fourth Amendment interests”’
against the countervailing governmental interests at stake. [Citation.] Our Fourth
Amendment jurisprudence has long recognized that the right to make an arrest or
investigatory stop necessarily carries with it the right to use some degree of physical
coercion or threat thereof to effect it. [Citation.] Because ‘[t]he test of reasonableness
under the Fourth Amendment is not capable of precise definition or mechanical
application,’ [citation], however, its proper application requires careful attention to the
facts and circumstances of each particular case, including the severity of the crime at
issue, whether the suspect poses an immediate threat to the safety of the officers or
others, and whether he is actively resisting arrest or attempting to evade arrest by flight.
[Citation.]” (Id. at p. 396.) State law battery and negligence causes of action based on
the use of excessive force are evaluated under the same standard of objective
reasonableness. (Edson, at p. 1274 [police officer battery cause of action]; Hernandez v.
City of Pomona (2009) 46 Cal. 4th 501, 514 [negligence cause of action against police
officers].)
“The ‘reasonableness’ of a particular use of force must be judged from the
perspective of a reasonable officer on the scene, rather than with the 20/20 vision of
hindsight. [Citation.] . . . With respect to a claim of excessive force, the . . . standard of
reasonableness at the moment applies: ‘Not every push or shove, even if it may later
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seem unnecessary in the peace of a judge’s chambers,’ [citation], violates the Fourth
Amendment. The calculus of reasonableness must embody allowance for the fact that
police officers are often forced to make split-second judgments—in circumstances that
are tense, uncertain, and rapidly evolving—about the amount of force that is necessary in
a particular situation. [¶] As in other Fourth Amendment contexts, however, the
‘reasonableness’ inquiry in an excessive force case is an objective one: the question is
whether the officers’ actions are ‘objectively reasonable’ in light of the facts and
circumstances confronting them, without regard to their underlying intent or motivation.
[Citations.]” (Graham, supra, 490 U.S. at pp. 396-397.)
According to Lieberman, summary resolution of his battery and negligence causes
of action based on excessive force was improper because “[t]he same facts [that]
supported [the officers’] . . . decision not to prone [him] out—his obvious advanced age
and appearance—should have supported a choice not to handcuff him. Per their training,
[the officers] had discretion not to handcuff, in the presence of extenuating
circumstances. They foolishly elected to proceed and continue to handcuff, and did so in
a manner causing pain, discomfort and bleeding; [h]e was caused internal shoulder and
wrist injuries. [¶] No force was needed here.”
Although the officers may have had discretion not to handcuff Lieberman, their
decision to do so does not establish excessive force. As with his claim that the detention
amounted to a wrongful arrest, Lieberman incorrectly assumes that his advanced age and
appearance eliminated the possibility that he had committed a crime. Such is not the
case. Given the LAPD communications of a burglary or attempted burglary by a man
who matched Lieberman’s description and was detained by police in the reported
location, the officers acted objectively reasonable in handcuffing Lieberman as they
began and conducted their investigation. As noted, based on the information they
received from LAPD communications, the officers considered their response as one to
“a high-priority crime” and Lieberman’s detention “a high risk traffic stop.” In addition,
the officers considered that, “based on the type of radio call that [they] were responding
to—and . . . burglary suspects could have . . . weapons and tools [that] can be used as
12
weapons . . . .” Their decision not to require him to lie prone on the ground while they
handcuffed him demonstrates they evaluated the circumstances based on his advanced
age and appearance; it does not, as Lieberman suggests, establish their decision to
handcuff constituted excessive force.
Lieberman’s primary claim on appeal is that no force was necessary and thus that
handcuffing, which necessarily involves some force, was excessive. He also suggests
that the manner of the handcuffing exacerbated a prior shoulder injury and caused his
wrist to be cut, creating a triable issue of material fact on the use of excessive force.
Despite his failure to dispute defendants’ description of a routine handcuffing based on
his own deposition testimony, he stated in his declaration supporting his opposition to
summary judgment that the officer who handcuffed him “forcefully grabbed [his] hand,
yanked it downward and twisted it painfully, as [he] complained that the handcuffs were
hurting [him].”
Nevertheless, the declaration did not establish a triable issue of material fact on
the question of excessive force. The officers kept Lieberman in handcuffs for between
five and 25 minutes while they began to conduct their investigation; according to
Lieberman, he spent five minutes in handcuffs. The officers undisputedly took the
handcuffs off before they had completed the investigation and determined he had no
criminal background and had not committed a crime. Handcuffing necessarily involves
some degree of force (Wertish v. Krueger (8th Cir. 2006) 433 F.3d 1062, 1067), and the
manner of handcuffing described by Lieberman in his declaration does not go beyond
that inherent force. Moreover, Lieberman admittedly did not inform the handcuffing
officer that he had a prior shoulder injury. His wrist bled upon the release of the
handcuffs. He refused medical assistance, put a Band-Aid on the cut and, when released
by the officers, immediately resumed his duties as a census worker by continuing his
house visits for that afternoon. Lieberman’s claimed injuries thus did not preclude
summary resolution of his battery and negligence causes of action based on the use of
excessive force. (Rodriguez v. Farrell (11th Cir. 2002) 280 F.3d 1341, 1351-1353
[summary resolution of excessive force claim, as “[p]ainful handcuffing, without more, is
13
not excessive force in cases where the resulting injuries are minimal”; “[w]hat would
ordinarily be considered reasonable force does not become excessive force when the
force aggravates (however severely) a pre-existing condition the extent of which was
unknown to the officer at the time”].)
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED.
ROTHSCHILD, Acting P. J.
We concur:
JOHNSON, J.
MILLER, J.*
*
Judge of the Los Angeles Superior Court, Assigned by the Chief Justice pursuant
to article VI, section 6 of the California Constitution.
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