Did a California Highway Patrol (CHP) officer violate a female motorist's constitutional rights by repeatedly blocking her access to an Orange County bathroom while she fought a losing battle against a rapid onslaught of diarrhea?
For Toni Antonellis, a well-respected San Diego food entrepreneur, and Aaron Rothberg, a CHP officer who once worked on Governor Arnold Schwarzenegger's protection detail, that question isn't hypothetical.
Fate placed Antonellis and Rothberg together before noon on the southbound 5 freeway near El Toro Road on June 18, 2014. Earlier that day, Antonellis attended a food vendors' event in Ventura County, then while driving through Costa Mesa, she began to feel severe gastric pain.
"I started having stomach cramps and thought something was off," she recalled in court proceedings. "I had eaten some food that I don't typically eat, as a courtesy to my fellow vendors, and I started breaking out in a sweat. I knew that I needed to use the bathroom."
However, traffic not only was moving below the speed limit, but also had formed a wall across lanes, blocking her from speeding ahead. Desperate to bypass the obstruction, she illegally entered the HOV lane, accomplished her plan, crossed over double yellow lines and re-entered normal traffic so she could exit at Alicia Parkway.
That's when Rothberg, who'd left an event teaching grade-school kids to respect law-enforcement officers, stopped her on the off-ramp after activating his vehicle's lights and siren. Antonellis said she was in an emergency situation and needed to immediately visit a nearby Wendy's restroom. According to a video recording of the encounter, she told the officer, "I'm going to shit my pants if you don't let me get into a bathroom right now."
Rothberg refused to believe her, though, in a later deposition, he conceded Antonellis had appeared frantic. CHP officers routinely hear half-baked stories designed to avoid citations and none tops a bathroom excuse for violating California's vehicle code, he testified. So, he treated her as a liar.
"I'm really sick," she reiterated. "I just need to go to the bathroom."
Though it obviously doesn't take paramedic assistance to empty one's bowels, the cop sarcastically asked Antonellis if he should summon an ambulance, a delay that would put her in additional misery. He then demanded to inspect her driver's license, registration and insurance paperwork. After she complied, the officer returned to his vehicle.
"Antonellis waited and waited and waited, silently suffering with an increase of cramping and intestinal distress," Keith H. Rutman, her attorney, told U.S. District Court Judge James V. Selna. "Relief in the form of a nearby, clearly visible bathroom made matters worse. After she overheard dispatch verify that her license was valid and she was not subject to any warrants, she leaned her head out the window and told Rothberg, who still had all her documents, that she could not wait any longer without losing her bowels on the spot, that she was going to drive her car to the restroom and he could meet her there, where she would sign the citation and retrieve her documents."
On the verge of disaster, Antonellis drove toward Wendy's. The officer gave chase, ordered her out of her Lexus and, again, ignored her pleas. He claims he had to consider potential possibilities: Was this wealthy, attractive, middle-aged woman with a valid ID a dangerous killer fleeing a bloody crime scene? Or was she a Mexican-drug-cartel mule hauling weapons and cocaine? Allegedly fearing for his life, he placed her in handcuffs.
Now restrained and weeping, Antonellis' willpower gave way to a messy reality. She soiled herself. Rothberg then locked her in the back of his patrol car, where she experienced a second round of diarrhea. Her cries for help were ignored, she claims. She also says the officer mocked her distress. After nine minutes, Rothberg removed the handcuffs, handed her two $500 citations and told her to "have a nice day."
The feces-stained back seat of his cruiser cost taxpayers $150 to clean.
Driving back to San Diego wearing a towel, Antonellis—the co-owner of Green Bellies, a nutrition company specializing in providing healthy food for children, as well as a café at a San Diego museum—called a CHP supervisor to threaten legal action. Rothberg appeared at the Harbor Courthouse in Newport Beach 16 days later to dismiss both citations, but not as an act of kindness. He elevated the case to criminal, seeking charges that she'd resisted arrest and obstructed him from performing his duties. A judge issued an arrest warrant after a CHP internal investigation asserted that the agency was "unable to substantiate" the allegation that the officer "exhibited poor judgment."
According to Rutman, the tardy charge was brought "for the sole purpose of dissuading Antonellis from filing a civil lawsuit against officer Rothberg and retaliating against her for indicating an intent to do so, as CHP was on notice that was her intended course of action. . . . Rothberg fabricated a version of events to support his plan. The allegations in the reports he prepared and presented are false and untrue."
Tony Rackauckas' scandal-scarred Orange County district attorney's office (OCDA) sided with the officer and took the case to trial, hoping to put the defendant in jail over the bathroom fiasco. The jury was not impressed by the government's arguments. Eight of the 12 jurors voted for acquittal. Antonellis then filed a civil-rights lawsuit inside Santa Ana's Ronald Reagan Federal Courthouse in early 2015. She claimed she'd been humiliated, subjected to unreasonable seizure, denied due process and was a victim of excessive force.
In response, then-Attorney General Kamala Harris—now a U.S. Senator—defended Rothberg's conduct and claimed he deserved immunity for his conduct because he is a cop. "There is no body of clearly established law that would inform a law-enforcement official that he was violating a driver's constitutional rights if he did not release a driver who had committed a traffic violation simply because she said she needed to go to a bathroom," Harris' agency argued in November 2016 to support its contention the case should end before a jury could consider its merits.
Late last month, Selna—a 2003 President George W. Bush lifetime appointee to the federal bench—agreed with the AG's office, granting summary judgment in favor of the cop. "A jury could not find that officer Rothberg's actions, viewed in the light most favorable to Ms. Antonellis [my emphasis], were objectively unreasonable," Selna opined.
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Rothberg told the Weekly his client hasn't decided whether or not to appeal the ruling to the United States Court of Appeals for the Ninth Circuit.
Meanwhile, Selna isn't alone in his outlook. In 2011, North Carolina police officer William Wright refused bathroom access to a detainee and encouraged her to "pee on herself," which she was forced to do twice. U.S. District Court Judge Graham C. Mullen, who won his judicial appointment thanks to the backing of Senator Jesse Helms, declined to see the incident as "egregious, arbitrary government conduct" because the nation's Founding Fathers didn't proclaim a specific constitutional right to use a bathroom while in police custody.
"While officer Wright certainly may be guilty of breaching the unwritten standards of human compassion and common decency," Mullen asserted, "he cannot be said to have breached a recognizable duty of care."
Ponder the implications of public servants not bound by even the lowest thresholds of honorable conduct.