Courthouse News – by IULIA FILIP
ATLANTA (CN) – A man who was shot in the genitals during a traffic stop can pursue claims that his medical care was delayed deliberately, the 11th Circuit ruled.
Roberto Valderrama’s lawsuit in Florida stems from a January 2006 traffic stop of a car in which Valderrama was a passenger.
Detective Carl Rousseau, of the Miami-Dade County Police Department, was patrolling the Overtown neighborhood when he claimed to have seen a pedestrian hand what looked like a gun to Valderrama.
Denying having received a gun from a pedestrian, Valderrama said he only threw a crack pipe out the car window, at the driver’s request, after the officer pulled them over.
Valderrama said he had his hands on his knees to make sure the officer could see them, but that Rousseau pointed his gun at the driver’s head through the car window and then fired a shot at Vaderrama.
The bullet allegedly hit Valderrama’s penis, testicle, thigh and buttock.
Court records show that Rousseau fired merely 20 seconds after approaching the car.
Valderrama claimed Rousseau and Officer Yasmina Smith, who stopped to assist him, delayed calling for an ambulance despite his severe wound. When they did, the officers reported his gunshot wound as “a laceration.” Because the call was assigned the lowest priority, the ambulance took more than 10 minutes to arrive at the scene, Valderrama said in the complaint.
A suspect Rousseau had arrested earlier that morning for possession of cocaine, who witnessed the incident from Rousseau’s car, testified that the detective offered to drop the charges against him if he said that Valderrama was holding a shiny object when the officer shot him.
Valderrama was arrested for possession of cocaine and drug paraphernalia, but the charges against him were ultimately dropped.
In federal court, where the officers had Valderrama’s lawsuit transferred, they were denied qualified immunity as to his claims for false arrest, excessive force and deliberate indifference to his serious medical need. The court also refused to dismiss Valderrama’s state-law claims for false arrest, concert of action and civil conspiracy.
A three-judge panel for the 11th Circuit affirmed Monday that Rousseau and Smith must face claims that they violated Valderrama’s 14th Amendment rights by allegedly delaying medical care and disregarding the risks associated with his life-threatening injuries.
The officers admitted that, instead of calling an ambulance right away, they spent more than three minutes talking about the shooting. Moreover, Smith downplayed the severity of Valderrama’s wound by calling it a laceration, which delayed the ambulance by seven minutes, the 38-page ruling states.
“Based on the evidence, a jury could infer that Detective Rousseau and Sergeant Smith spoke about the shooting before calling for assistance and that they discussed the need to concoct a story that would justify Detective Rousseau’s use of deadly force and, therefore, complicitly delayed reporting and misreported Mr. Valderrama’s injuries in order to delay the arrival of emergency personnel on the scene,” Judge Jill Pryor wrote for the panel.
Valderrama may also prove that the officers were more than grossly negligent in delaying medical care while he faced life-threatening injuries, the court found.
The officers did persuade the court to reverse on Valderrama’s Fourth Amendment claim. Because Smith testified that she witnessed Valderrama throw the crack pipe out the window, the officers had probable cause to arrest him, the ruling states.
Valderrama could not prove that Smith had no way of seeing him throw the pipe while she was getting out of her car. Likewise, the court said Smith’s failure to immediately report observing the pipe does not undermine her testimony.
A third officer who arrived minutes after the shooting meanwhile is entitled to immunity on the deliberate-indifference claim because there is no evidence he knew his colleagues had delayed calling for medical assistance, the court found.
The court said it lacks jurisdiction to address Valderrama’s state-law claims, and it noted that Rousseau did not appeal the denial of his bid for qualified immunity on the excessive-force claim.
Senior Judge Emmett Cox wrote in dissent that the deliberate-indifference claim against Rousseau and Smith should be dismissed because facts do not support the conclusion that the officers delayed calling for help to “concoct” a cover-up story.
http://www.courthousenews.com/2015/03/19/genital-shooting-claims-against-cops-advance.htm