Judge Stanley Marcus of the U.S. Court of Appeals for the Eleventh Circuit. Courtesy photo

The U.S. Court of Appeals for the Eleventh Circuit has ruled that a Miami police officer is not entitled to immunity from an excessive force civil rights lawsuit alleging he intentionally placed handcuffs tight enough to do permanent nerve damage to the hands of a man who had been stopped for speeding.

Judge Stanley Marcus authored the opinion released Thursday. Marcus was joined by Senior Judge Joel Dubina and U.S. Court of International Trade Judge Richard Goldberg, sitting by designation. They affirmed U.S. District Judge Federico Moreno of the Southern District of Florida in denying a motion to dismiss a lawsuit against Javier Ortiz of the Miami Police Department.

Ruben Sebastian filed the lawsuit, alleging that “Ortiz restrained him with handcuffs for more than five hours ‘in a manner purposely intended to cause pain and injury,’” Marcus said. “On account of the officer’s misconduct, Sebastian claims to have suffered nerve damage and the permanent loss of sensation in his hands and wrists.”

Sebastian’s attorney is David Frankel of the Law Offices of David Frankel in Hollywood. Frankel shared an emailed response to the opinion Thursday.

“The appellate court’s decision confirms that police officers are not entitled to any legal protection where they use handcuffs as a weapon to inflict punishment on someone being placed under arrest,” Frankel said. “In this particular case I think the court was also persuaded by the extensive number of previous allegations of unlawful arrests and misconduct against Officer Javier Ortiz. Mr. Sebastian looks forward to proceeding to trial based on this ruling.”

The legal team for Ortiz includes Alexandra Christine Hayes, Oscar Edmund Marrero and Lourdes E. Wydler of Marrero & Wydler in Coral Gables. Henry J. Hunnefeld, a senior attorney in the city attorney’s office, is representing Miami.

Marrero said Thursday that when the case goes to trial, he will defend the actions of Ortiz – who has since been promoted to captain. “We’re going to assert that reasonable force was used,” Marrero said.

“This case presents the question whether a police officer is entitled to qualified immunity when he intentionally applies unnecessarily tight handcuffs to an arrestee who is neither resisting arrest nor attempting to flee, thereby causing serious and permanent injuries,” Marcus said. “After careful review of the entire record, we agree with the district court that the appellant was not entitled to qualified immunity.”

Sebastian was pulled over for speeding on the Rickenbacker Causeway in July 2015, according to Marcus. Officer Jay Grossman of the City of Miami Police Department made the stop.

Grossman asked to check the tint on the front windows of the vehicle to determine compliance with Florida law. Sebastian agreed to that but said no when Grossman asked permission to search the vehicle.

Grossman, who was sued but later dropped from the case, said the tint on the rear windows prevented him from seeing into the back of the car. “Sebastian asserted, however, that the entire interior was readily visible because the front windows of the car were rolled down,” Marcus said. After Sebastian denied consent to the search, Grossman called Ortiz for backup.

“When Ortiz arrived at the scene, he too asked for permission to search the interior of the vehicle,” Marcus said. “Sebastian again refused, and Ortiz allegedly ‘became enraged,’ opened the car door, and removed Sebastian from the vehicle.”

A third officer arrived, called “Officer Doe” in the records. “Either Ortiz or Doe then restrained Sebastian, pressed his face into the hood of a police car, and placed him in metal handcuffs,” Marcus said. “Sebastian claims that the handcuffs were engaged ‘in a manner purposely intended to cause pain and injury, cutting off the circulation in his hands, and cutting into the skin on his wrists.’”

When Sebastian complained, “either Officer Doe or Ortiz responded that he ‘knew of a way to make them tighter,’” Marcus said.

With Sebastian restrained, the officers began to search the vehicle, Marcus said. “Sebastian informed the officers that he had a firearm in the car, and with his assistance the officers located the gun in the side pocket of the driver side door, secured in its holster,” Marcus said.

Even though Sebastian had a permit to carry, had stored the gun safely and told the officers where to find it, they charged him with reckless display of a firearm and resisting an officer without violence. Those charges were later dropped.

“Lieutenant Ortiz or Officer Grossman told Sebastian that he ‘would not that day, or ever, return to his job’ as a security guard employed by Miami-Dade County,” Marcus said. And they were right. Sebastian lost his job over the incident — even though his only violation was speeding.

A fourth officer arrived and, as directed by Ortiz, put Sebastian into the pack of a police car to be taken to the station. One of the officers replaced the metal handcuffs with plastic “flex cuffs,” Marcus said, “again, allegedly, ‘intentionally tightening the cuffs in a manner purposely and wantonly intended to cause pain and further injury.’” They left him in the back of a hot car in the Miami summer heat while they searched his vehicle. When he asked, they rolled down a window, but only a couple of inches. They left Sebastian’s hands cuffed behind his back for more than five hours — even after taking him to the police station.

“Sebastian further alleges that he ‘continues to suffer nerve damage to his hands and wrists, emotional pain and suffering, loss of employment, and reputational damages’ as a result of the handcuffing and arrest.” Marcus said. “His employment with Miami-Dade County was in fact terminated, and he has been unable to find work as a security guard elsewhere.”

Sebastian sued each of the officers and the department on claims of excessive use of force in violation of the Fourth Amendment and supervisory liability for failure to stop what was happening, Marcus said.

“Because Sebastian has adequately pleaded a clearly established constitutional violation of his right to be free from excessive force, Lieutenant Ortiz is not entitled to qualified immunity,” Marcus concluded. “The district court did not err in denying Lieutenant Ortiz qualified immunity.”

The case is Sebastian v. Ortiz, No. 17-14751.