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RESOLUTION 91-20340 RESOLUTION NO. 91-20340 A RESOLUTION OF THE CITY COMMISSION OF THE CITY OF MIAMI BEACH, FLORIDA, AUTHORIZING THE CITY ATTORNEY TO SETTLE GUTIERREZ V. CITY OF MIAMI BEACH, ET AL. , UNITED STATES DISTRICT COURT, SOUTHERN DISTRICT OF FLORIDA, CASE NO. 91-0977, FOR AN AMOUNT NO GREATER THAN $78,500 INCLUSIVE OF ALL ATTORNEYS FEES AND COSTS. BE IT RESOLVED BY THE CITY COMMISSION OF THE CITY OF MIAMI BEACH: WHEREAS, in 1991, Gutierrez v. City of Miami Beach, et al. was filed in Federal District Court, wherein Plaintiff alleged a violation of his civil rights based upon alleged police brutality. In his Complaint, Plaintiff sought damages against Defendant pursuant to 42 US Section 1983 , assault and battery, false arrest and Imprisonment; and WHEREAS, Plaintiff' s attorney, Isaac J. Mitrani, has made an offer to settle whereby Plaintiff will accept $78 , 500 from the City representing compensation for all outstanding claims due Gutierrez from Defendants; and WHEREAS, the City Attorney representing the City of Miami Beach, has advised that settlement in the subject litigation is in the best interest of the City of Miami Beach, and has thus recommended that the City settle this case without admission of any liability for this negotiated amount; and WHEREAS, the City Attorney recommends that he be authorized to settle the claim for an amount no greater than $78 , 500 inclusive of attorneys fees and costs. 1 NOW, THEREFORE, BE IT DULY RESOLVED BY THE CITY COMMISSION OF THE CITY OF MIAMI BEACH, FLORIDA that the recommendation of the City Attorney that he be authorized to settle this matter for an amount no greater than $78 , 500 is hereby accepted and the City Attorney is thus hereby authorized to settle this case consistent with those figures as outlined hereinabove. PASSED and ADOPTED this 11th day of September 1991. MAYOR ATTEST: FORM APPROVED CITY CLERK LEGAL DEPT. 7yca:\gutierrez.res By Date 2 ��iC-'Y. .w.. .T- r, w .,>- :.,.{)• }d .? - y, •.. 'r• ..K t. -f.. .♦- ..f..-y. -;.2'.. i- ':.? .n if w.i- - -lam it i't £`•" ..7a_- - ,-•. � • '-.. -t .:: -aid: .c a 's.- _ s: ,:i.- .;.,J t+s ..•C• 1. +... r -n;. •;dS [, s .\'a :a::o� '! -4 ti` Ke-x+, Tt. ; ';` '!. _ '. � <'�. i.•.. uili3�s::syr.� `rr�.,ir�4�ai�yJr�sa:',r a'�'{�ri�:�'if.Aa...'�.,i�.r't4ir_�.24�.wi�`2`Cy�.we�e�:3�-.a.:�x;a�:ts:-lrs.•vi...ty:ce.�yi-:h�c3:i�,�;.•__-=---'=�..,A.s��Ja`*i.c'�.dr.�:��t,�: ►-1r%c�.�:i�*:rt,�- s.�ii: .�.s�fe�.,�.'i.,.�.:.:4s.c.>ss�.'' � w OFFICE OF THE CITY ATTORNEY ly:Amu. wardF L O R I D A _ Mi_BE k INCORP tORATED *; LAURENCE FEINGOLD9�, �,��, P.O. BOX O CITY ATTORNEY �11PCH Z6, MIAMI BEACH. FLORIDA 33119-2032 TELEPHONE (305)673-7470 • TELECOPY (305)673-7002 COMMISSION MEMORANDUM NO. „321-L / - a DATE: September 11, 1991 TO: Mayor and Members of the Cty Commission FROM: Laurence Feingold City Attorney SUBJECT: Giovanni Gutierrez v. City of Miami Beach Case No. 91-0977-CIV-KEHOE Request for Settlement Authority it ••J REQUEST FOR SETTLEMENT AUTHORITY This claim arises from an arrest made by Officer Carlos DeVarona on December 15, 1989. Officer DeVarona was in pursuit of -S. a subject on foot who ran toward the residence of Gutierrez and, Gutierrez ' attempt toprevent the subject from disregarding p 7 entering his home, fled into the Gutierrez ' residence. Officer DeVarona pursued the subject who entered the Gutierrez ' home but failed to capture the fleeing suspect. Officer DeVarona then struck Gutierrez several times and verbally threatened him. Despite an attempt by Gutierrez (in front of witnesses) to inform the Officer that the fleeing individual was unknown to Gutierrez, the Officer arrested and hand-cuffed Gutierrez and transported him to the Miami Beach Police Department for booking. While at the Miami Beach Police Department Gutierrez and Officer DeVarona encountered the suspected burglar who had entered the Gutierrez ' home and the individual acknowledged his forceful entry into the Gutierrez ' home and acknowledged that he was not • formerly acquainted with Gutierrez. r4 Notwithstanding the above Gutierrez, was arrested for various misdemeanor charges including resisting arrest without violence and was booked on those charges. The charges were later dismissed by the State Attorney. eT LIABILITY The attack upon Gutierrez by the Officer was witnessed by two disinterested bystanders, 1) bystanders describing Gutierrez as complacent and cooperative despite being beaten by the Officer. After extensive investigation there seems to be no indication whatsoever that Gutierrez was involved in any with the stranger who was being pursued by police. The Plaintiff sues for violations of civil rights against the City of Miami Beach and the individual Police Officer. He alleges 1 AGENDA ITEM 1700 CONVENTION CENTER DRIVE - FOURTH FLOOR - MIAMI /1 GATE . .., ,.-.-. .,....._ u,..e:n..ra..+a•v✓a•.... .eya..-.•a :w.- _ a..:ua•r•.]. 0 v,wf".:l..r.V",•L ls'ar. J:-•."t'..Jn.;•r-•l: W.r..._.y t.:1lrar:f?YS.SValt4'":yr^.:• 'L S...•'•,v:.�".-:. 'w!�',a'. ♦ro r ^f.�..tily.•y,,, ....!^1(M.„Isyc+`•1'T i„v..Y.•:.'Y:_, 'a • -..- .i r-z .cy•cfn.i i'fK st.:T'� .-r �..:.T-. ..�••S_•- y...:xG ..c. aK•� .;. �-. •i ,r� . .� _ a r{...•r.v,ti_R. ,. ':i 3:. a• :1 a'•- •-._- r 1i••• -1- '7ti.•t,•L-�= e_ .K..•'A. vi, L't" �• � 'd: f { ,."` v'K• ,r. -.i;:"'i'• - •r`'fi.r+ .-. :s r.. j"' ��.' .74"L •«. +hw.S•.+5'fit;�.i.1i1c..-ssa%'Cw'�•.'eleiCCii'-+[Lti.il4tii iiClT-ei' J 1--"r}.• .�.. .- -ter .• '..L.. a.S• le-A• �}_,/ �y ' i' F - d -= i.:'�.x.....f`YiZ'fi✓.. .w�.hwi� l•:+:rrS..i.i.Y'7C�i�iS2+..ad..;`atY+ '"-K`ieO�s:T.�C.t.':�'..ywa6.'l4u�c.'iLe�.��i'sulk:itr�s�.,+f+tir]�s.trtisi:d.'1�.�- ...f'_a+�c�.Y.�rr.111i+r At+::L.. assault and battery claims against the individual Officer and the City, false arrest claims against the individual Officer and the City and excessive force against the City of Miami Beach. DAMAGES Gutierrez was seen at the emergency ward at Mount Sinai Hospital and treated for three months by Dr. Neil Meyerowitz who assigned an eight to nine percent permanent spinal and skeletal partial disability to the body as a whole as a result of the injuries sustained during the beating. Gutierrez continues to have lower back pain and reports intense pain in the shoulder and back. A recent MRI objectively showed a mild interior displacement of the temporomandibular joint (jaw) . His economic damages are enumerated as follows: A. Past Medical 1. Dr. Neil Meyerowitz $1, 390. 00 2 . Mt. Sinai Hospital $1,800.00 (approximate) 3 . MRI Scan Center $1,240. 00 4. Dr. Patricia Pavkovich $2,275. 00 5. Dr. Shah $ 250. 00 F ' Total $7,210. 00 B. Past dental (for jaw) 6. Dr. Strauss 450.00 C. Past lost wages: $1, 200. 00 D. Attorneys fees to defend himself against criminal charges $2 , 323 . 00 Total $11 )383 . 00 EVALUATION The Plaintiff has agreed to be interviewed for purposes of evaluation of settlement. The Plaintiff holds a Master Degree in Political Science. He appears well groomed and distinguished. He is thirty-five years of age. He complains of pains on both sides of his jaw with continuing headaches as well as back pains. The mistaken arrest by Officer DeVarona seems to indicate exposure to the City for the injuries sustained by the Plaintiff. EVALUATION OF OPPOSING COUNSEL Isaac Mitrani and Loren Cohen are highly competent attorneys. They have been successful against the City of Miami Beach in the Brice case and have obtained at least once a verdict of $1. 1 million for false arrest and false imprisonment claims against a city. RECOMMENDATION After extensive negotiations the attorneys for the Plaintiff have agreed to except $78,500 in complete and full settlement of this claim. The original demand was $250, 000. In light of the above facts I recommend settlement of this claim for the amount of $78,500 with complete releases executed on behalf of the City and the individual Officer, as set forth in attached resolution. { `1 LF/MJC/yc Attachments 2 • 74 ORIGINAL RESOLUTION NO. 91-20340 Authorizing the City Attorney to settle Gutierrez v. City of Miami Beach, ET AL. , United States District Court, Southern District of Florida, Case No. 91-0977, for an amount no greater than $78,500 inclusive of all attorneys fees and costs.