Civil Case (Jerusalem) 31455-07-19 Anonymous v. State of Israel

Judgment

1. I have before me a claim in the amount of ILS 150,000 for assault, false arrest, delay and demand of identification in violation of the law and in the absence of legal grounds and defamation against defendant 2, who served in the Border Police (hereinafter: the defendant) and defendant 1, the State of Israel. Defendant 2 was convicted as part of a plea bargain in an amended indictment filed against him (17363-03-16 (Shalom-Y-M) Department for the Investigation of Police v.  Trad, dated October 24, 2017, hereinafter "the Criminal Proceeding" and/or the "Judgment") in which he admitted to assaulting the plaintiff and obstructing the investigation proceedings of the incident.  The plaintiff bases his claim on the judgment in the criminal proceeding by virtue of section 42a(a) of the Evidence Ordinance [New Version], 5731-1971 (hereinafter: the "Evidence Ordinance").

The circumstances of the case as determined in the verdict and the plea bargain

2. On November 15, 2014, the defendant worked on a shift with a policewoman who was the commander of the team (hereinafter "Nofar") and a reinforcement team, including two apprentices from the Border Police training base. During the shift, near a café on Sultan Suleiman Street in Jerusalem, the defendant asked the plaintiff, who was standing outside the café, for an ID card.  The plaintiff refused the defendant's request and cursed his sister.  The defendant used pepper gas in his possession and sprayed it at the plaintiff and other people who left the café upon hearing the argument between the plaintiff and the defendant, who demanded that they enter the café.  The defendant asked Nofar to report an assault on a police officer and to ask for reinforcements.  After the people entered the café, the defendant opened the door, pepper-sprayed inside, cocked his weapon and aimed it at them, beyond the glass front door.
3. The plaintiff left the café and presented the defendant with a driver's license. The defendant handcuffed the plaintiff from behind and drove them in a patrol car to the nearest police station.  During the short drive to the police station, the defendant hit the plaintiff with his hands while exchanging curses.  When they arrived at the police station, the defendant sat the plaintiff on the floor of the interrogation room on his knees, with his face against the wall and handcuffed.  While in this position, the defendant kicked the plaintiff and hit him, even with a chair, twice, in the head and ribs.
4. After the incident, the plaintiff filed a complaint against the defendant at the Department for the Investigation of Police. On December 23, 2014, on their way to the interrogation, the defendant asked Nofar not to tell the truth during her interrogation, claiming that his life and the lives of his wife and children would be destroyed.  In her first interrogation, Nofar gave a false account of the sequence of events, and about a month later, when she was called for further interrogation, she changed her version.
5. An indictment was filed against the defendant, and after Nofar's testimony in court, the indictment was amended to the circumstances detailed in the judgment. The defendant pleaded guilty to the offenses attributed to him in the plea bargain, in which he was sentenced to 5 months in prison while serving in public service, a fine of ILS 500, and compensation to the plaintiff in the amount of ILS 2,500.

The parties' arguments

6. The plaintiff relies in the lawsuit on the circumstances of the incident detailed in the judgment and indictment, and wishes to add to them circumstances that he claims the court did not discuss in the criminal proceeding. The plaintiff's version also contains circumstances that contradict the verdict, and according to him, since he was only a witness in the criminal proceeding, he did not have the estoppel that prevents him from making additional or different claims.
7. The plaintiff divides the circumstances of the lawsuit into three separate incidents: the argument between him and the defendant outside the café until Izuku, his evacuation to the police car and the drive to the police station, and the incident at the police station. According to the plaintiff, the first incident began when the defendant and Nofar entered the parking lot, which is located near the café where he was staying at the time.  The plaintiff claimed that he was standing outside the café and offered the defendant help, which in response, he rudely answered that he would shut his mouth and demand his ID card.  The plaintiff denied that he cursed the defendant's sister and replied that his ID card was in his car.  The defendant reacted aggressively, pushing the plaintiff, grabbing him by the hand and pepper-spraying the plaintiff and the customers of the café who went out into the street because of the noise.  Afterwards, based on the circumstances of the judgment, the plaintiff claimed that the defendant cocked his weapon and aimed it at those present at the scene of the incident and pepper-sprayed inside the café, after the plaintiff and the others had re-entered.  The plaintiff left the café with his driver's license in order to identify himself, and the defendant handcuffed him from behind and evacuated him to a patrol car.
8. The second incident, according to the prosecutor, took place during his evacuation to the police station, and in which, contrary to the indictment, the prosecutor claimed that the defendant pepper-sprayed his face again, beat and kicked him before putting him in the patrol car. After the plaintiff was put in the patrol car, according to the plaintiff and in accordance with the judgment, the defendant continued to beat him during the drive to the police station and swore at him.
9. In the third incident, which took place when they arrived at the police station, the plaintiff claimed that the defendant had slammed his head against the wall several times. These beatings were given in addition to what was described in the judgment, according to which the plaintiff sat on the floor of the interrogation room and was beaten with kicks, punches and a chair.  The prosecutor bases this on what was alleged in the original indictment, in which the defendant was accused of hitting the plaintiff's head against the wall (paragraph 8 of Appendix 2 to the plaintiff's affidavit), a claim that was deleted from the amended indictment (paragraph 8 of Appendix 4 to the plaintiff's affidavit).
10. The defendant (hereinafter: "the State") rejects the plaintiff's version of events and argues that only the circumstances in the judgment should be accepted and considered, as decided, as part of an ongoing event. According to her, the plaintiff is prohibited from adding or arguing for other or contradictory circumstances of the court's rulings, in light of his request, to recognize the claim in question, in the circumstances in the judgment.
11. On the other hand, the defendant presented a version of the circumstances of the incident, which deviated from that in the judgment. He claimed that although he agreed to the plea bargain, the estoppel did not apply to him, because it was done because he was exhausted from defending himself and left his service in the Border Police, and therefore he could claim a different version of events than the one detailed in the plea bargain.  However, the defendant did not ask for permission to submit evidence to contradict the judgment.
12. Despite this, his testimony included a different version of the incident, according to which he received an ID card from the plaintiff at his request, saw that the plaintiff was sitting in the car, threw a bottle over the parking lot fence, got out of the car and ran towards the café. He also testified that the parking lot was a well-known place for the police for drug deals, that he had a reasonable suspicion that the thrown bottle contained drugs, and therefore he asked the plaintiff for an ID card, when the plaintiff arrived at the entrance to the café, after running out of the car (paras.  32-33 at p.  36 and paras.  1-21 at p.  37 of the transcript of May 25, 2022).  This version of the circumstances that preceded the defendant's request to the plaintiff for an ID card was first raised in his testimony in court.  The version is not included in his affidavit, his versions in his interrogation at the Department for the Investigation of Police, or in the action report he filled out after the incident, and the defendant admitted to it (paras.  22-26 at p.  37 of the minutes of the hearing of May 25, 2022).  The defendant abandoned this argument in his summaries.
13. In his summary, the defendant reiterated his version in his affidavit, according to which during a car scan in the parking lot, the plaintiff interrupted the defendant and Policewoman Nofar and shouted at them. The defendant asked the plaintiff for an ID card, and the plaintiff refused the request and cursed the defendant.  According to the defendant's version, after his request to the plaintiff to identify himself by ID card was rejected, the plaintiff began to push the defendant hard and continued to curse.  According to the defendant, the loud argument caused a gathering on the island of the café.  The defendant, who he claimed felt threatened by the gathering and the urgency of the plaintiff, pepper-sprayed those who had gathered (paras.  20-27 at p.  41 of the transcript of May 25, 2022).  The defendant denied the plaintiff's claims of violence during his admission to the police station, during the drive to the police station and the police station.  According to the defendant, the plaintiff was drunk during the incident and when they arrived at the police station, the plaintiff slammed his head against the wall after refusing to sit on a chair (paras.  29-30 at p.  41 of the transcript of May 25, 2022).
14. The plaintiff rejected the defendant's version, and claimed assault, false arrest, delay and demand of identification in violation of the law and lack of legal grounds and defamation. According to the plaintiff, the defendant committed the offenses during the performance of his duties and therefore the state bears direct or vicarious liability for the damages caused to him, and the defendants should be held jointly and severally.  The state claimed that the plaintiff had not proven that he had been arrested and the duration of his detention.  According to her, the plaintiff was detained for interrogation and after it was over, he was released.  She also argued that the plaintiff's claims that the requirement for his identity card was illegal were based on a later ruling.  According to her, based on the ruling, only the events at the police station, which were recognized as a criminal offense, should be examined against the plaintiff's claims, and his claims of banging his head against the wall should be viewed as an extension of the façade.
15. According to the plaintiff, the state refrained from testifying witnesses on its behalf, presenting evidence of training for the use of force or supervision of the defendant. In the absence of such evidence and testimonies, the plaintiff argued that the state was negligent in training the defendant and should be held directly responsible for his actions.  The plaintiff added that the defendant did not set instructions or instructions on how to act in circumstances such as the incident.  As a result, no separation was made between the plaintiff and the defendant after the argument between them in the parking lot, and the defendant continued to carry out the arrest without the supervision of his commanders.  According to him, the attack on the defendant was expected and the establishment of instructions on the matter could have prevented what happened.  According to the plaintiff, the lack of control over the defendant's actions was expressed, inter alia, in the fact that the state did not install cameras at the police station to document what was happening there.
16. The plaintiff claimed that the state refrained from testifying police officers who were present at the station at the time of the incident and witnessed his assault. On the other hand, the state argued that the set of facts of the prosecution had been proven and determined in the criminal proceeding, and therefore it was not required to summon witnesses on its behalf.  She further argued that the burden of proof was on the plaintiff and that he should have summoned Nofar to testify on his behalf to prove the additional circumstances to which he claimed.
17. The plaintiff further argued that the state also bears vicarious responsibility for the defendant's actions, which were carried out on a police patrol, which is part of the mission and role of the police, and therefore his actions, even if they were criminal, should be viewed as performance within the framework of his position. As a result, according to him, and by virtue of section 13 of the Torts Ordinance, the state bears vicarious liability for the defendant's actions.
18. The defendant also claimed that his actions were carried out within the framework of his position, but contrary to the plaintiff's claim, that he enjoys protection as a state agent. On the other hand, the state argued that the defendant's actions were carried out in complete deviation from his duties and therefore bears sole responsibility for the plaintiff's damages.  According to her, the defendant acted out of a personal interest to protect his sister's honor, when he responded violently to the plaintiff's curses, and therefore his actions should not be considered part of his work.  According to the state, the defendant's conviction in the criminal proceeding indicates that his actions were carried out in complete deviation from his position and therefore he should not be required to undergo the training.  On the other hand, the plaintiff argued that the defendant's conviction in the criminal proceeding establishes vicarious responsibility of the state for his actions.
19. Finally, the state argued that the defendants should not be obligated to pay punitive damages, and that if it is found liable for the plaintiff's damages, the amount awarded in his favor in the criminal proceeding should be deducted from the compensation that will be awarded.

Discussion and Decision

20. In his statement of claim, the plaintiff sought to see the findings and conclusions determined in the criminal proceeding as if they had been determined in the present lawsuit, in accordance with section 42a(a) of the Evidence Ordinance. The plaintiff also claimed that he also had the right to argue for additional circumstances, beyond the findings of the criminal proceeding, a claim that the state rejected.  According to her, the plaintiff's request to recognize the findings of the judgment excludes him from making additional or different claims.  The defendant, on the other hand, chose to argue against the plea bargain in the criminal proceeding, on the grounds that he agreed that he had been exhausted (paras.  8-12 at p.  43 of the transcript of May 25, 2022) and therefore, he was not estoppel with respect to the arguments against the agreement in the lawsuit.  The plaintiff argued that since the agreement was signed between the state and the defendant, and he is not a party to it, he is the only party in the lawsuit who is not subject to estoppel.

1. The purpose of sections 42a(a-e) of the Evidence Ordinance is to prevent duplication of hearings in matters decided in criminal proceedings and conflicting judgments in various courts (Civil Appeal 9057/07 David Appel v.  State of Israel, paragraph 31 of April 2, 2012).  Due to the high burden of proof in the criminal proceeding, the evidence accumulated serves as a basis for conviction, as evidence in the civil lawsuit (Civil Appeal 350/74 M.L.T.  In the Tax Appeal v.  Massoud and Maman, IsrSC 29(1) 208).  The criminal judgment has the status of prima facie evidence of what is stated in the civil proceeding, in the event that the conviction in the criminal proceeding is the result of the defendant's confession in a plea bargain or the court's decision after clarifying the circumstances (Civil Appeal 285/80 Menachem Schiff v.  Aharon Eliasi, IsrSC 34(4) 752; Civil Appeal 71/85 "Aryeh" Insurance Company in Tax Appeal v.  Sylvia Bohbot, 41(4) 327; Civil Appeal Authority 9759/16 Majdi Abu Mor v.  Tax Authority, April 7, 2017; Kedmi on the Evidence, Part Two, at pp.  1557-1560 (Combined and Updated Edition, 2009).  Accordingly, litigants who were given their day in court in the criminal proceeding are prohibited from arguing against the findings of the judgment without the court's approval (section 42C of the Evidence Ordinance; In contrast, this estoppel does not apply to litigants who did not raise their claims in the criminal proceeding.  The plaintiff had the status of a witness only in the criminal proceeding, and accordingly, unlike the defendants, he is the only one who is not subject to estoppel and is entitled to argue against or in addition to the findings of the judgment.  In light of this, the defendants' arguments are rejected and they are subject to estoppel regarding the arguments against the findings of the criminal proceeding.

22. In contrast to the sentence and plea bargain, which view the totality of the circumstances as a single entity, the plaintiff splits the circumstances into three separate consecutive events. In its summaries, the state rejected this split and argued that in accordance with the plaintiff's request to receive the findings of the judgment in full in the present lawsuit, only the circumstances that included the offense of assault should be treated as one ongoing event.  The plaintiff's argument is partially accepted.  The sentence relates to a separate part of the circumstances as a criminal offense, while the rest of the circumstances are defined as background, the offense of assault of which the defendant was charged began with the plaintiff's handcuffs and included the drive to the police station that took place there.  On the other hand, the circumstances from the defendant and Nofar entering the parking lot until the defendant asked the plaintiff for his identity card for identification, were argued as a background for the offense of assault and not as an offense.  This determination is not binding in this lawsuit, since there is no complete overlap between torts in torts and offenses in criminal law.  Therefore, the plaintiff's argument that all the circumstances of the incident should be examined from the date the defendant entered the parking lot until the assault at the station should be accepted.
23. The totality of the circumstances, as determined in the sentence, describes a series of violence against the plaintiff, which extends over three scenes (the parking lot, the car car on the way to the police station and the station). The drive to the police station included, according to the plaintiff, a number of beatings and curses in a short drive of only a few minutes, and the defendant's behavior during the short drive is a continuation of the acts in the parking lot, according to the plaintiff's version.  In light of their proximity to the timeline, the totality of the circumstances, from the defendant's entry into the parking lot to the assault at the police station, should be viewed as an ongoing event.
24. As to the circumstances of the incident, a dispute arose regarding three circumstances, which the prosecutor wished to add to the findings of the criminal proceeding. First, the circumstances move on to the defendant's request for an identity card.  According to him, when the defendant and Nofar entered the parking lot, he approached the defendant and offered him help, and the defendant replied that he would shut his mouth and ask for his ID card.  Of the witnesses who testified on behalf of the plaintiff, only the owner of the café, Mr. Ashraf (hereinafter "Ashraf") testified that he witnessed the conversation between the defendant and the plaintiff in full.  Ashraf testified, who was sitting inside the café by the glass door and watching what was happening in the parking lot, heard the plaintiff offer his help to the defendant and his response, but did not hear the plaintiff curse the defendant (paras.  21-25 at p.  19 and paras.  31-33 at p.  21 of the transcript of May 25, 2022).  The state did not invite Nofar to testify, even though she was a witness to the incident and relied on her testimony in the criminal proceedings and her statement at the Department for the Investigation of Police that the plaintiff was drunk, refused to cooperate with the defendant, defied him and cursed him.  The defendant reiterated these claims in his version of events in his testimony before me as well.
25. In contrast to the criminal judgment, the protocol of the criminal procedure and the statements during the interrogation do not enjoy the status of prima facie evidence in a civil proceeding and are used only to clarify the verdict (section 42B of the Evidence Ordinance). Nofar testified in the criminal proceeding against the defendant and therefore he could not be expected to be summoned to testify in the prosecution.  On the other hand, the defendant's argument that she was not required to testify with Nofar and to rely on the transcript of her testimony in the criminal proceeding should be rejected.  However, we must accept the defendant's version, which was similar to Nofar's version that the plaintiff did not cooperate and cursed.
26. There is a friendship between the plaintiff and Ashraf (paras. 16-19 at p.  20 of the minutes of May 25, 2022).  Ashraf testified that he was far away from the defendant and the plaintiff and was located behind a glass door (paras.  13-31 at p.  24 of the transcript of May 25, 2022).  A location that makes it difficult to accept his version, according to which he clearly heard the conversation between the plaintiff and the defendant, especially when he claims that the conversation began with the plaintiff's polite face and not with shouting as the defendant did.  On the other hand, the plaintiff and his witnesses admitted that the plaintiff consumed alcohol that night before the defendant arrived at the parking lot, even though the café does not sell alcohol (paras.  11-15 at p.  14, paras.  21-24 at p.  25 and s.  9-10 at p.  31 of the minutes of May 25, 2022).  This fact is consistent with the defendant's version of the plaintiff's conduct, which he claims stemmed from alcohol consumption, and even with Nofar's version that did not testify in favor of the defendant in the criminal proceeding.  Accordingly, the defendant's version that during a tour of the parking lot, the plaintiff confronted the defendant, after drinking alcohol, refused to identify himself, and cursed his sister.
27. The second dispute related to the circumstances of the plaintiff being put in a police car before he was taken to the police station. The plaintiff claimed that while he was getting into the car, the defendant hit and kicked him.  This version was supported by the testimony of Mr. Najib Razem Muhammad, who was present at the café and went out to the parking lot due to the loud argument between the plaintiff and the defendant, even though he did not hear what was said in it (paras.  4-5 at p.  28 and paras.  30-31 at p.  29 of the transcript of May 25, 2022) and testified that he was pepper sprayed and returned to the café.  After the plaintiff went out to the parking lot again with his driver's license and was handcuffed by the defendant, Mr. Najib Razem Muhammad went out to the parking lot again and saw that the defendant was kicking the plaintiff, putting him in the patrol car and spraying the plaintiff again with pepper gas while he was still in it (paras.  9-11 at p.  28 of the transcript of May 25, 2022).  Ashraf, on the other hand, testified in part a different version, according to which the defendant hit and kicked the plaintiff and then, before putting him in the patrol car, sprayed the plaintiff with pepper spray again (lines 8-13 on p.  20 of the transcript of May 25, 2022).  This version was supported by the testimony of Mr. Salaimeh, another witness on behalf of the plaintiff, who testified that the defendant pepper-sprayed the plaintiff with tear gas before putting him in the patrol car (para.  11, p.  35 of the transcript of May 25, 2022).  The defendant denied the plaintiff's claims that he had beaten him, testified that pepper spray inside the car would not have allowed it to be used (paras.  6-9 at p.  45 of the transcript of May 25, 2022), and the state reiterated the findings of the sentence.  The defendant's argument that the plaintiff's pepper spray inside the patrol car would not have allowed it to be used and would have harmed the apprentices who sat next to the plaintiff in the patrol car, but the defendants did not present any evidence against the testimonies of the other witnesses, that the repeated spraying was done before the plaintiff was put in the patrol car.  Accordingly, the plaintiff's version that the defendant kicked him and sprayed him with pepper gas while he was handcuffed before putting him in the patrol car should be accepted.
28. The third dispute between the parties concerned the circumstances after the plaintiff was brought to the police station. The plaintiff claimed that, contrary to the criminal judgment, after arriving at the police station, the defendant slammed his head against the wall several times.  This version was supported by the original indictment, which included an accusation of slamming the plaintiff's head against a wall, which was deleted from the amended indictment in the plea bargain, after Nofar's testimony that the prosecutor slammed his head against the wall.  The plaintiff, contrary to his other arguments regarding the circumstances of the incident, raised claims on the matter that were not decided in the criminal judgment, and therefore, in the absence of a ruling, the defendants in the matter were not estopheld.  The state rejected the plaintiff's claims, based on Nofar's testimony in the transcript of the criminal proceeding, which constitutes evidence to prove its content, but not its truthfulness, and without her testimony in the present proceeding, nor other police officers, or that documentation of what was done in the interrogation room was submitted, therefore the plaintiff's version is accepted and it must be determined that the defendant suffered evidentiary damage to prove his version of the matter.

Summary of the circumstances of the incident

29. As it appears from the aforesaid, the incident began when the defendant and Nofar entered the parking lot near the café, and the plaintiff was standing outside the entrance to it. The plaintiff, who drank several glasses of vodka during the evening, turned to the defendant and informed them loudly that they were forbidden to enter the parking lot.  The defendant ignored the plaintiff and began to search the parking lot.  After they finished the search, they began to leave the parking lot, and the plaintiff contacted them again with claims that they were not allowed to enter the parking lot.  The defendant asked the plaintiff for identification, was rudely answered and cursed the defendant's sister.
30. Due to the loud argument between the plaintiff and the defendant, some of the residents of the café left it. The defendant instructed Nofar to report on the radio about an attack on police officers, pepper-sprayed the plaintiff and the attendees, and they re-entered the café.  The defendant opened the door and sprayed pepper gas into the café.  He then loaded his weapon, an M-16 rifle, in front of the café occupants who were standing across the glass door of the business.
31. In the meantime, a number of police officers arrived, in light of a report by Nofar on the radio. The plaintiff left the café with a driver's license to identify himself to the defendant, who was handcuffed and put in a patrol car, but not before kicking him and spraying him with pepper spray.  On the short drive to the police station, the plaintiff and the defendant swore at each other and the defendant hit the plaintiff while driving.
32. When they arrived at the police station, the defendant sat the plaintiff on his knees, on the floor of the interrogation room, with his face against the wall and handcuffed. While in this position, the defendant kicked the plaintiff and beat him, inter alia, with a chair on his head and ribs, and slammed his head against the wall.

The issues that arise

33. The questions to be decided are:
    1. Is the defendant liable to the plaintiff for committing a tort (assault, false arrest, defamation or delay and demand of identification in violation of the law and in the absence of legal grounds).
    2. Assuming that liability is imposed on the defendant, does the State have vicarious liability for his conduct?

• Does the state have direct responsibility towards the plaintiff and whether it was negligent towards him independently?

1. What is the extent of the damage caused to the plaintiff?

The Defendant's Liability for the Wrongs Attributed to Him