Metropolitan News-Enterprise


Thursday, July 12, 2012


Page 1


Ninth Circuit Court Allows Ex-Athlete to Sue Davis Police

Football Player Hit in Eye by Projectile Showed Prima Facie Case of Excessive Force, Panel Says




A former UC Davis football player who lost the sight in one eye as a result of being shot by Davis police with a pepper spray projective at a raucous party eight years ago may proceed with his civil rights lawsuit, the Ninth U.S. Circuit Court of Appeals ruled yesterday.

The panel affirmed a ruling by U.S. District Judge Morrison C. England, denying summary judgment based on claims of qualified immunity by several officers, as well as the police chief.

 The suit by Timothy Nelson stems from what was described by one witness as “the biggest party in history”  at an off-campus housing complex.  Nelson claims he and his friends were trying to the leave the April 2004 event, and he and they testified that they did not hear police ordering the crowd to disperse.

Davis police, as well as UC police called in for assistance, said they were concerned over cars clogging the street and disrupting traffic, as well as the huge number of illegally parked vehicles around the complex. When they told the crowd to disperse and non-residents to leave the complex, with the approval of the landlord, they were pelted with bottles and food and subjected to obscene language, they said.

Stuck in Breezeway

Nelson said he and his friends got stuck in a narrow breezeway while trying to leave. Not only were they unable to hear the orders of police, the officers were actually blocking the exit, they said in their depositions.

Officers fired several pepperballs into the crowd, and one of the projectiles hit Nelson in the eye. The injury, for which he has undergone several surgeries over the years, led to the loss of his athletic scholarship, and he alleges he could not remain in school without it.

Nelson was never charged with a crime.

Police Criticized

At least one officer testified that he had been told to shoot into the crowd, and another admitted that he had targeted individuals within Nelson’s group.

Nelson also alleged that the Davis Police Department refused to investigate excessive force complaints that he, his parents, and others filed. Campus police found no wrongdoing by its officers after a review of written reports on the incident, which Nelson claims were inaccurate.

England denied the officers’ claims of qualified immunity, finding that the use of such force had been excessive considering the relatively minor nature of the offenses, and that the officers should have known it. He also denied summary judgment on the plaintiff’s state tort claims.

Judge Stephen Reinhardt, writing for the appellate panel, said the district judge was correct on the federal claims, as to which the defendants had the right of appeal. He pointed out in a footnote that the court has no jurisdiction to hear an interlocutory appeal of a ruling allowing state claims to go forward.

The use of force to immobilize a person, he said, constitutes a “seizure” in the Fourth Amendment sense, the judge said. And while the use of some amount of force by police is constitutionally reasonable in certain situations, the circumstances in which Nelson found himself that day  did not—taking the plaintiff’s evidence as true, under the standard for a qualified immunity appeal—did not justify the amount of force that was used.

POST Guidelines

He noted that the Commission on Peace Officer Standards and Training guidelines calls for avoidance of firing pepperballs at the head, face, and groin due to the risk of injury,  and that the defendants testified they were aware of the guidelines. He also said that Nelson was not committing a crime when he was shot, and that if anyone nearby was committing an offense, it was a mere trespass; that the officers had no reason to perceive Nelson or his friends as threatening; and that no warnings were heard by the plaintiff, or any of his witnesses, until after the police started shooting pepperballs.

Nor, based on pre-2004 case law, could the officers have believed their conduct was constitutionally reasonable, Reinhardt said.

“A reasonable officer would have known that firing projectiles, including pepperballs, in the direction of individuals suspected of, at most, minor crimes, who posed no threat to the officers or others, and who engaged in only passive resistance, was unreasonable,” the judge wrote.

 “Although the officers used force against Nelson and his group during their attempt to disperse a crowd, there was no exigency motivating the officers’ actions and they were aware at the time of the shooting that they were using force that might lead to serious injury against non-threatening individuals who had committed no serious crime,” he added. 

Reinhardt was joined by Senior Judges Betty B. Fletcher and A. Wallace Tashima.

The case is Nelson v. City of Davis, 10-16256.


Copyright 2012, Metropolitan News Company