Local News

Sunday, Sep 05 2010 12:00 PM

Doctor's suit against city moved to federal court

BY STEVEN MAYER, Californian staff writer smayer@bakersfield.com

A lawsuit filed against the city of Bakersfield alleging that police violated the civil rights of a doctor who was handcuffed for nearly an hour while he was suffering from a massive stroke has been moved to federal court.

The change of venue to the courthouse in Fresno will introduce a broader jury pool outside of Kern County and will require a unanimous verdict for the plaintiff.

The complaint accuses Bakersfield police of using unnecessary force on Bakersfield neonatal surgeon Dr. Mohamad Harb, and of trying to cover up what happened by filing incomplete reports, said Harb's attorney, Steven Gibbs. Harb's Middle Eastern ancestry may also have played a role in the officers' actions, Gibbs said.

Mick Marderosian, a Fresno-based attorney representing the city of Bakersfield and the Bakersfield Police Department, said the city is not responsible for what happened to Dr. Harb.

"The conduct of the officers are not the cause of his injuries or his disability," he said.

In November 2007, police reportedly handcuffed and forcibly detained Harb minutes after the doctor had suffered a massive stroke while driving home from his shift at Kern Medical Center.

Records indicate that Harb was left sitting on a curb, hands cuffed behind his back, as one ambulance was sent away, reportedly by former BPD Officer Claudia Payne, who was the first officer on scene and is a co-defendant in the lawsuit.

By the time a second ambulance was requested and was able to get Harb to the hospital, more than an hour had passed.

Harb suffered a permanent disability, leaving him unable to practice medicine.

In amending the lawsuit by adding civil rights complaints, Gibbs said he knew he was opening the door for Marderosian to "remove" the case to federal court, which the Fresno attorney called "the proper venue" for civil rights claims.

"The federal system draws its jurors from Bakersfield in the south to Stockton in the north," Marderosian said.

Gibbs suggested the broader jury pool may actually benefit his case as Kern County jurors have a reputation for erring on the side of police.

On the other hand, Marderosian may benefit from the federal requirement of a unanimous verdict, rather than the state civil courts that require that just three-quarters of jurors agree.

The two attorneys disagreed on whether the credibility of Officer Payne would play a role at trial.

Payne was investigated by a Kern County sheriff's detective in a separate matter earlier this year, and the case was submitted to the Kern County District Attorney's office for possible criminal charges.

But the DA's office rejected the detective's request, noting that the statute of limitations had lapsed on both proposed charges: misdemeanor embezzlement and making a false crime report to a peace officer, also a misdemeanor.

Nevertheless, Payne resigned from the department in March, citing personal reasons.

Marderosian argued that since no court ever confirmed Payne committed a crime, no judge would ever let Gibbs impeach her credibility as a witness.

"Prior bad acts," he said, must rise to the level of a felony conviction and must meet other strict guidelines.

"We can speculate all day long about why the officer resigned," he added. But it's just speculation.

But Gibbs noted that Payne is a witness in the case. She wrote the BPD's only report of the incident.

If she is asked in court whether she has ever filed a false report, it may open the door to questions about the Sheriff's Department investigation.

"She's a defendant. I don't need to show that she has a conviction," he said. "This is about her veracity."

The case hasn't been scheduled for trial yet. Marderosian said it's likely to happen in 2011 or 2012.

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