Moore's sister, Maria, and father, Arthur, spoke before the City Council last year. Photo: Emilie Raguso
Kayla Moore’s sister, Maria, and father, Arthur, spoke before the City Council last year. Photo: Emilie Raguso
Kayla Moore’s sister, Maria, and father, Arthur, spoke before the City Council last year. Photo: Emilie Raguso

Berkeley police used excessive force when attempting to arrest Kayla Moore and declined to give her mouth-to-mouth resuscitation when she stopped breathing because they considered her transgender status as something objectionable, according to a lawsuit filed in federal court Wednesday.

At least one Berkeley Police officer who responded to reports of a disturbance at Moore’s apartment at the Gaia Building on Allston Way on Feb. 13, 2013, referred to Moore as “it,” according to the lawsuit.

Police also violated Moore’s civil rights when they pushed to arrest her on an outstanding San Francisco warrant they discovered for a “Xavier Moore,” according to the lawsuit. While Moore’s birth name was Xavier, the warrant described a man in his 60s. Moore was only 41 and should not have been mistaken for the other Moore, according to the lawsuit.

“The Officers clearly knew that Decedent MOORE was not the person named in the warrant, was not a suspect in any crime and had not been evaluated to determine whether or not he was eligible for a 5150 hold,” read the lawsuit. “Nevertheless, Officer BROWN inexplicably and arbitrarily decided that ‘we might as well take him’ and told MOORE that they were going to arrest him. Decedent MOORE begged the officers to ‘… confirm the warrant …’ prior to arresting him.”

(The lawsuit refers to Moore as him; Berkeleyside refers to Moore as her, which was Moore’s preference.)

Berkeley police have maintained that the warrant for Xavier Moore was legitimate and was in fact for Kayla Moore, despite the age discrepancy.

Oakland attorney John Burris filed the civil rights lawsuit in U.S. District Court in San Francisco on behalf of Moore’s father, Arthur Moore. The suit asks for unspecified damages for lost wages, pain and suffering, and for punitive damages.

Berkeley City Attorney Zach Cowan said Thursday he could not comment on the suit as the city had not yet seen it.

Kayla Moore, from Facebook
Kayla Moore, from Facebook

The suit was filed the same day Moore’s family and local groups disturbed by the Berkeley Police Department’s handling of the situation rallied outside the Gaia apartment building. They then walked over to a meeting of the Police Review Commission, which is scheduled to hear testimony in closed session next week about Moore’s death.

The Alameda County coroner’s office determined that Moore died of “acute combined drug intoxication,” exacerbated by an enlarged heart and obesity. Moore weighed 347 pounds. In 2013, the Berkeley Police Department also released a 348-page investigation which concluded that Moore was in violation of California Penal Code 69, resisting arrest, and that the physical force used by the police to overcome Moore’s resistance and to pursue Moore’s arrest was reasonable.

The lawsuit goes into detail about the interaction Moore had with Berkeley police and differs in some significant ways from the city report. Berkeley police responded to a 911 call for a mental health evaluation around 11:40 p.m. and arrived to find a very agitated Moore. She grew even more agitated after police found the warrant and told her she was under arrest.

Berkeley police have said Moore stepped out of her apartment briefly and, when two officers tried to take her hands, Moore pulled them into the apartment and they all fell down on a mattress. Police then handcuffed her and restrained her legs using a wrap. They rolled Moore over on her side (she had been lying face down) and was still breathing, according to the police version. A few minutes later, she stopped breathing.

Lawsuit suggests higher level of force

The lawsuit suggests a higher level of force on behalf of the police, an “extreme” level of force that led to Moore’s “pain and suffering.” It also suggests that police restricted Moore’s ability to breathe, which contributed to her death.

“Officer BROWN held Decedent MOORE face down on the futon by pressing her body weight into Decedent MOORE’s shoulder blades. Officer TU lay on top of Decedent MOORE’s lower body to prevent him from moving his legs. Officer SMITH also used his body weight to hold MOORE face down on the futon. Decedent MOORE was heard screaming, ‘Get off of me,’ as he desperately struggled to breathe under the combined body weight of the Officers pushing him against the mattress. Decedent MOORE experienced severe psychological and physiological trauma as he helplessly lay face down with his airway restricted, for no legally justifiable reason.”

At some point, Moore stopped breathing. Berkeley police then began compressing Moore’s chest to pump air into her body, but that action only made things worse, according to the lawsuit. None of the seven police officers present, all of whom are trained in emergency first aid, performed mouth-to-mouth resuscitation on Moore, which would have assisted her, the lawsuit reads.

Discriminatory comments alleged

“During the incident, Sergeant Philips and other Officers made discriminatory comments when they pejoratively referred to Decedent MOORE as ‘it’ and made irrelevant inquiries into Decedent MOORE’s gender identification. Plaintiff is informed and believes that Decedent MOORE’s status, as a transgender man, was a factor in the Officers’ decision to refuse to perform CPR properly.”

The lawsuit also alleges that the seven officers involved with Moore’s arrest have engaged in “a repeated pattern and practice of using excessive, arbitrary and/or unreasonable force against individuals including, but not limited to decedent, XAVIER ‘KAYLA’ MOORE.”

The lawsuit also contends that Berkeley was negligent in not retraining police on how to respond to mental health evaluations known as “5150s.” That attitude demonstrates the existence of an entrenched culture and indifference to using proper procedures when dealing with those with mental health problems, the lawsuit claims.

Read the lawsuit.

Vigil, rally mark anniversary of in-custody death (02.12.14)
Xavier (Kayla) Moore’s death: The timeline (05.06.13)
Coroner, police deliver reports on Xavier Moore death (05.03.13)
Emotional pleas prompt call for Kayla Moore report (05.01.13)
Police union: Should Berkeley have Tasers? (04.02.3013)
Anti-police demonstrators march in downtown Berkeley (03.13.13)
Berkeley Police release statement on in-custody death (02.28.13)
Name released after death in custody, cause unknown (02.22.13)
Man dies after struggle with Berkeley Police (02.13.13)

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Frances Dinkelspiel, Berkeleyside and CItyside co-founder, is a journalist and author. Her first book, Towers of Gold: How One Jewish Immigrant Named Isaias Hellman Created California, published in November...