Metropolitan News-Enterprise


Monday, August 14, 2006


Page 1


Ninth Circuit Reinstates Suit Over Handcuffing of 11-Year-Old




A Los Angeles  man who was 11 years old when a team of officers allegedly pointed guns at and handcuffed him while seeking to arrest his father can sue for violation of his constitutional rights, the Ninth U.S. Circuit Court of Appeals ruled Friday.

U.S. District Judge Ronald S.W. Lew ruled two years ago that the agents, from the IRS, Drug Enforcement Administration, and Los Angeles Police Department, did not use excessive force or unreasonably detain Ephraim Tekle. The judge also ruled that to the extent there may have been a Fourth Amendment violation, the agents acted reasonably and were entitled to qualified immunity.

The Ninth Circuit panel disagreed, saying no reasonable officer would have believed that the Constitution allowed him to act in the manner Tekle alleges.

The defendants acknowledged detaining Tekle when they arrested his father on tax and drug charges at the family home. But they claimed that he looked older and that they did not know he was unarmed.

Mother Arrested

A different team of agents had earlier arrested Tekle’s mother after she dropped off his two siblings at school. Tekle testified at his deposition that he was taking out the trash, unaware of the officers’ presence, when he hear a voice over a “loud intercom” saying “turn around and put your hands in the air.”

Not believing that message was meant for him, he testified, he turned around and started running back inside. When the agents repeated for him to come out, he said, he realized who they were talking to and went out with his hands up.

One of the officers, he testified, told Tekle to get on the ground, so he lay face down on the driveway. The officer, he testified, held a gun to his head, searched him, and handcuffed him.

Tekle said the officer pulled him up from behind by the chain of the handcuffs and took him out to the sidewalk, where he sat, still handcuffed, with his feet “in the gutter” until his father was brought out of the house in handcuffs, approximately 15 minutes later.

After than, he testified, the officers kept their guns on him for a period of time, although the handcuffs were removed. He also said that an officer asked him where he was from, and he explained that he was born in the United States but that his parents came from Ethiopia, the officer responded with a profane and deprecating remark about his parents’ homeland.

Tashima Opinion

Senior Judge A. Wallace Tashima, writing for the Ninth Circuit, emphasized that in ruling on the validity of a summary judgment ruling, the court must resolve all legitimate factual disputes in favor of the party opposing the motion, in this case the plaintiff. On that basis, the judge concluded, there was sufficient evidence of excessive force and unreasonable detention to establish triable issues of fact.

Ninth Circuit precedent, Tashima explained, may permit a claim for excessive force in circumstances where a gun was pointed but not fired, depending on the totality of the circumstances.

“Here, viewing the facts in the light most favorable to Tekle, approximately twenty-three armed officers saw a barefoot, eleven-year-old boy, clad in shorts and a t-shirt, emerge from his home. Although he tried to return to the house after hearing the initial “intercom,” he then stopped and cooperated. He did not attempt to flee, nor did he resist them, but he complied with their requests, lying face down on the driveway.

He was unarmed. The officers then held a gun to his head, searched him, handcuffed him, pulled him up from behind by the chain of the handcuffs, and sat him on the sidewalk, still handcuffed, with their guns pointed at him, for ten to fifteen minutes. Only after they removed his father from the home in handcuffs did they remove the handcuffs from Tekle. They then sat him on a stool, with their guns still drawn, for another fifteen to twenty minutes.”

Third Circuit Case

Citing a similar case from the Third Circuit, Tashima said the amount of force allegedly used against Tekle constituted a “very substantial invasion of [his] personal security.”

Judge Raymond C. Fisher concurred in the opinion, while Judge Andrew Kleinfeld concurred separately.

Kleinfeld agreed that the plaintiff had alleged a case of excessive force with respect to the pointing of the guns. As to the handcuffs, he agreed that the facts alleged stated a claim, but only because of the allegation that the officers lifted Tekle to his feet while cuffed, which the judge called a “sadistic bit of bullying.”

The case is Tekle v. United States, 04-55026.


Copyright 2006, Metropolitan News Company