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.
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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
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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 /
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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
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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
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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.
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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.
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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
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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.
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LF/MJC/yc
Attachments
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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.