The Daily Digest, 2/17/11

Until I read the first case today, I had no idea that there were Brain Injury Identification cards! These cards are available through local Brain Injury Associations for “persons with brain injury [who may] have motor and speech impairments that may be misunderstood by a police officer who is unfamiliar with the effects of brain injury. A driver who has a visible disability caused by a brain injury should be prepared to calmly explain his or her disability to a police officer.” The Plaintiff in Odom had done just that when the police officer repeatedly tasered her for failing to cooperate with providing her ID and registration. Yikes.

The second case raises the generic “genetic disorder” claim, without any expert evidence or any other substantiation of the disorder. The purpose of claiming genetic disorder was to enable a purported “next friend” to bring a habeas petition on behalf of the genetically-disordered prisoner. Despite the many advances in genotyping and more specific linkages between specific genetic polymorphisms, environmental stressors, and behavior, most of the genetic cases I have read rely on unspecified claims about a genetic predisposition or disorder.

Brain Injury, Stop and Identify, Section 1983 and Police Taser
Odom v. Matteo, 2011 WL 283946 (D. Conn. 2011)
Plaintiff brought an action for Section 1983 damages against arresting police officer, police chief, and the city (“defendants”) for disproportionate force by a police officer because she suffers a brain injury, and negligence against the other defendants. Both sets of defendants sought summary judgment. This summary focuses on the excessive force claim, but the negligence claim is worth reading. Plaintiff claims that to the best of her ability, in light of her brain injury, she complied with the police officer when she was pulled over for a minor traffic violation. She tried immediately to explain to the police officer that she had a brain injury. She provided him with a “brain injury survivor card,” given to her by the Brain Injury Association, which identifies her as a brain injury survivor and lists the symptoms of brain injury. She likewise tried to have her mother, via cell phone, explain to the officer her difficulty understanding and complying with his demands. The police officer became aggressive when she failed to provide him with her registration or insurance information, attempted to remove her from her vehicle, and tasered her multiple times. The court denies the officer’s motion for summary judgment and held that a reasonable juror could construe the plaintiff’s conduct as passively resisting the officer’s requests, or “even attempting to comply subject to limitations caused by her brain injury.” Therefore a reasonable jury could find the officer’s use of force was excessive and unreasonable. The plaintiff did not fare as well on her other claim.

Habeas, Next Friends, and Generic “Genetic Disorder”
Mitchell v. Yates, 2011 WL 486568 (C.D. Cal. 2011)
Habeas petition was brought on behalf of a California state prisoner, who had not signed the petition or signed any document indicating his awareness of the petition. A petition “must” be summarily dismissed “[i]f it plainly appears from the petition and any attached exhibits that the petitioner is not entitled to relief in the district court.” Here, the Petition suffers from numerous defects and is unexhausted, and thus, is summary dismissed. The Petition was brought by Seitu, and individual with unknown relationship to the prisoner. He is not an attorney, and did not obtain “next friend” status, which is only granted when (1) the friend provides an adequate explanation such as mental incompetence as to why the individual cannot appear on his own; (2) must be truly dedicated to the friend, which likely requires a significant relationship between the two. With respect to the first, Seitu asserted that the prisoner is “severely handicapped” based on a genetic disorder, and therefore cannot prepare and file a habeas petition. No medical records or other competent evidence established this genetic defect. Even if the genetic defect satisfied the first requirement, Seitu had not established the second. Finding no basis for Seitu to bring or pursue the habeas action, the Court lacked jurisdiction to hear the Petition and dismissed it.

About Nita A. Farahany

Professor of Law and Philosophy, Professor of Genome Sciences and Policy
This entry was posted in Behavioral Genetics, Civil, Criminal, Neuroscience and tagged , , , , . Bookmark the permalink.

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