Metropolitan News-Enterprise


Wednesday, July 8, 2009


Page 1


Court Revives Ex-Athlete’s Claim Against Davis Police

Conflict Between Plaintiff, Own Witnesses Held No Basis for Summary Judgment




The “sham affidavit” rule does not authorize a trial court to grant summary judgment solely because a party’s deposition testimony varies from that of the party’s own witnesses, the Ninth U.S. Circuit Court of Appeals ruled yesterday.

The judges reinstated ex-UC Davis football player Timothy Nelson’s claims against the City of Davis. Nelson claims that he lost his football scholarship and suffered serious injuries when he was hit by a “pepperball” fired by Davis police as they tried to break up a large party at an apartment complex.

The party was held in April 2004 at the Sterling Apartment Complex. Nelson, then 21 and headed into his second year of NCAA football competition, was among as many as 1,000 people there.

Police officials said the party was out of control and that when officers sought to break it up, they came under a barrage of thrown bottles and that many of the partygoers were yelling or cursing. They said they decided to fire the pepperballs—projectiles full of the chemical irritant oleoresin capsicum—in order to end the bottle-throwing and to make it uncomfortable for anyone to remain in the area.

Nelson and some friends eventually left the hallway in which they were standing and entered an outside breezeway. The officers allegedly ordered everyone in the breezeway to disperse, and when they failed to do so, fired pepperballs at them.

Two officers testified in their depositions that no one in the breezeway was throwing bottles.

Nelson, claiming that he was permanently disfigured and temporarily blinded by a projectile and has had several corrective surgeries as a result,  sued the city, the university and various members of the city and university police departments for violation of his constitutional rights and various torts under California law.

At his deposition, Nelson testified that he “was just walking out” when the police started shooting, and “all I remember is walking out...then I got hit.” Two of Nelson’s friends, however, gave depositions in which they said that they were outside with Nelson when the officers started firing.

Nelson’s counsel, from the Law Offices of John L. Burris in Oakland, argued that the deposition testimony by the plaintiff’s friends established a triable issue as to whether Nelson was an intended target.

But U.S. District Judge Morrison England of the Eastern District of California ruled that Nelson was not a target because “[a]ny inference in that regard that may be drawn from the equivocal testimony of others, however, is nullified by Plaintiff’s own clear version of what transpired during the period immediately surrounding his injury.”

England cited precedent in the Ninth Circuit and elsewhere that a party cannot “avoid summary judgment by citing testimony allegedly inconsistent with his own testimony.”

But Judge Sidney Thomas, writing for the Ninth Circuit, said the sham affidavit rule “has its limits.” The Ninth Circuit, he said, has held that in opposing summary judgment, a party may elaborate or clarify prior testimony in order to show that the plaintiff’s allegations are not a sham but rather that any inconsistencies result from honest disagreement or mistake or because of newly discovered evidence.

It is entirely reasonable, Thomas said, for Nelson to contend that his friends were in a better position to give accurate testimony because they “had a different viewpoint from the plaintiff’s and...had not suffered head injuries sufficient to cause temporary blindness.”

The jurist elaborated:

“The rationale underlying the sham affidavit rule is that a party ought not be allowed to manufacture a bogus dispute with himself to defeat summary judgment. That concern does not necessarily apply when the dispute comes from the sworn deposition testimony of another witness.”

Thomas emphasized that the court was not ruling on any other issues, leaving open the possibility that the defendants could still win summary judgment on other grounds when the case returns to the district judge.

Senior Judge J. Clifford Wallace and Judge Jay S. Bybee concurred in the opinion.

The case is Nelson v. City of Davis, 07-16905.


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