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Old 02-27-2016, 08:58 AM   #128
Andrea
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It doesn't appear this incident was in the news so I am posting the court opinion. Also, I found no mention of when this happened but no matter, it is still ugly.

http://www.ca6.uscourts.gov/opinions.pdf/16a0112n-06.pdf?mc_cid=a28b9d18b8&mc_eid=bdf013911c

According to Cheryl McCarty, she was driving her three young grandchildren to school when Officer Birberick pulled her over and accused her of illegally passing a stopped school bus. She argued with him, claimed there had been no school bus, accused him of racism, and refused to accept the ticket, letting it instead drop on the ground. Officer Birberick returned to his patrol car—a large SUV—and drove away. But McCarty, who had turned off her ignition but not her headlights, had accidentally drained her car battery and could not restart her car. Stranded on the side of a very busy city street, she turned on her emergency lights and attempted, unsuccessfully, to phone a friend for assistance. Approximately 20 minutes later, Officer Birberick returned, as part of his routine patrol, and pulled up behind her. When he approached McCarty’s driver-side window, she rolled her eyes in disgust and looked away. They did not speak. Officer Birberick returned to his SUV, which he then rammed into McCarty’s sedan from behind, purportedly to move her car off the busy street into the adjacent gas station lot. He did not forewarn McCarty of his intention to ram her car and the collision took her and the children by surprise, throwing them from their seats.

Rather than moving the car to the gas station, however, this collision actually forced the car further into traffic. McCarty and the children were wailing in panic. Officer Birberick got out of his car and began screaming at McCarty that she could have been killed, though he did not specify what she had done wrong or should have done differently. He then waited for traffic to clear and rammed her car again, this time so hard that he knocked the rear end of the car up off the ground, causing it to lurch into the gas station, just missing the gas pumps. At this point, McCarty was dazed, the children were on the floor with one bleeding from the head, and the car was severely damaged. Officer Birberick drove off without any further interaction.

A service station attendant jump started the car and McCarty drove the damaged car and children away. She filed a police complaint and, eventually, this lawsuit. Officer Birberick moved for summary judgment on qualified immunity which the district court denied upon concluding that, taking these facts in the light most favorable to McCarty, a jury question remained as to whether Officer Birberick’s ramming of her car, without warning and with three young children in it, was so outrageous as to shock the conscience and violate McCarty’s clearly established, substantive due process rights. Officer Birberick appeals.
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