The injury occurred Sept. 15, when officers were placing 47-year-old Jody Lynn Haar, of Marina, under arrest for allegedly being under the influence of cocaine and possessing a crack pipe. She was apprehended while riding in a car that was stopped by police on El Camino Real.
According to reports filed by the three officers involved, Haar, who is 5-foot-10 and 155 pounds, was sitting on a curb with her arms behind her back and was in the process of being handcuffed when she surprised the officers by lunging forward to stand up, saying, "I didn't do anything wrong."
As she moved, police agent Jose Vieyra held Haar's right arm in what he described as a "control hold" — his left hand on Haar's right hand and his right hand on Haar's right elbow. Officers wrote that she was losing her balance while Vieyra kept her in the control hold to keep her from falling forward, and that's about when her upper right arm broke in several places. Officers said they believed she was trying to "break free" to avoid arrest.
On Tuesday, the City Council met in closed session to discuss the case, and city attorney Jannie Quinn announced that they had decided to reject the claim. The city's position, said Quinn in a phone interview, is that "The force used was reasonably necessary because the claimant tried to resist arrest."
Haar's attorney, William B. Look, said the officers used excessive force and were negligent.
In the claim filed against the city, Look called "not credible" the police report describing the injury as having occurred because Haar "lunged forward and shattered her own arm." He says the officers could have used other means, such as mace or tasers, to control her.
"It's not possible to dice the known facts into a situation that was life-threatening for the cops," Look told the Voice. "I don't want to accuse them of brutality or anything more than negligence."
The officers, he said, used "too much force under the circumstances. It's not complicated. If you hurt somebody in that situation, you have to take responsibility for it."
Officers say they immediately took Haar to the hospital after she complained of pain from her injury, and there doctors found a "comminuted facture" between the elbow and shoulder, which means it was shattered into pieces. Officers reported that they did not ask her to sign her Miranda rights card because of her injured arm.
"MVPD reviewed the case and determined that the officers' actions complied with all of our policies, procedures and training," said police spokesperson Liz Wylie in an e-mail.
Look said Haar now has a titanium plate in her arm, and is asking for $73,636 in medical expenses and $1 million in damages for what he calls a "permanent physical detriment."
Look said he was not aware of any health problems Haar had that would make her bones fragile, such as osteoporosis. Even if she did, he said, it would not be allowed as a legal defense under state law.
When asked whether his client had smoked crack cocaine on the day she was arrested, Look did not answer directly and did not dispute it either.
Police had pulled over the truck Haar was riding in after it was seen swerving down El Camino Real with an expired registration and no license plate light. The driver said he was on parole for possession of cocaine but was not found with any. Police reported that Haar was hesitant to allow them to search her purse, but she allowed them to do so even though she was not legally obligated to. Officers say they examined her on the spot and determined that she had been using crack cocaine. They also said Haar eventually admitted to smoking it earlier that day.
Police say the driver of the truck witnessed the arrest from the back seat of a police car three feet away. He is quoted in the police report as saying: "You guys were just trying to cuff her and she pulled away. I will tell you one thing, I never make any sudden movements like that around cops. I don't know what she was thinking."
Haar herself is quoted in the police report saying, "I tried to pull away like an idiot" when explaining her injury to a doctor.
Look pointed out that the police report was written after the officers knew that Haar's arm was broken. The story may change if the officers, victim and witness testify under oath, he said.
Finance director Patty Kong said any payout as a result of the claim would come from the city's reserves. Last year the city used some of those reserves, which totaled $37 million at the time, to keep from having to cut city services.