Metropolitan News-Enterprise


Tuesday, December 8, 2020


Page 1


Ninth Circuit:

Law Not Clearly Established on Officer’s Duty to Intercede

Panel Says Member of Police Force Is Entitled to Qualified Immunity in Action by Woman on Whom A Fellow Officer Allegedly Sicced an Attack Dog Although She Was Unarmed, on Ground


By a MetNews Staff Writer


The law was not clearly established that a police officer had a duty to intercede when a dog, unleashed by a fellow officer, was mauling a woman who was unarmed and was on the ground, the Ninth U.S. Circuit Court of Appeals held yesterday, declaring that the officer who took no action enjoyed qualified immunity and was erroneously denied summary judgment.

However, a three-judge panel said, in a memorandum opinion, the officer in charge of the dog was properly denied summary judgment by District Court Judge Stephen V. Wilson of the Central District of California.

The opinion relieves Rialto police officer Matthew Lopez of liability in connection with injuries inflicted on plaintiff Samantha Goode by a German shepherd named Boda. She sued under 42 U.S.C. §1983 for excessive force.

Remaining a defendant in that action—along with the city—is officer Jarrod Zilke.

Of greater significance than Goode’s claim is that of her co-plaintiff, Odila Penaloza, who is suing for the wrongful death of Erick Aguirre, who was fatally shot by the officers.

The incident took place on July 13, 2018. Aguirre was giving Goode a lift home; officers attempted to stop him to issue a citation for having expired registration tags; Aguirre sped off, and, after a pursuit, stopped.

Allegations of Pleading

According to the first amended complaint:

“Plaintiff GOODE complied with the commands by defendants LOPEZ and Does 1-10 to exit the vehicle. Meanwhile Decedent Aguirre was trying to exit the vehicle, but because of his disability he was unable to exit said vehicle. Immediately after Plaintiff GOODE exited the vehicle, she complied with the orders of defendants LOPEZ, ZIRKLE and Does 1-10 to get on the ground. Despite Plaintiff GOODE having fully complied with the orders of said defendants, ‘BODA,’, was released by defendant ZIRKLE and sent in the direction of Plaintiff GOODE. BODA immediately proceeded to attack and maul Plaintiff GOODE as she watched in horror as officers LOPEZ and ZIRKLE shot at decedent AGUIRRE multiple times. Defendants LOPEZ and ZIRKLE, using their service weapons, intentionally fired their guns at decedent AGUIRRE, an amputee, who was still seated in the parked Toyota Camry with his hands on the steering wheel at the time Defendants LOPEZ and ZIRKLE fired their guns.

“Decedent, AGUIRRE was shot multiple times and died at the scene from his injuries. Plaintiff GOODE sustained serious injuries from the attack by BODA and she was transported to a nearby hospital, treated and eventually released. Plaintiff GOODE was not arrested or charged with any crime.”

Body Cam Recordings

In opposing summary judgment, Goode pointed to what was shown by the officers’ body camera footage:

“After Zirkle intentionally gave the order to bite and intentionally pushed Boda at Samantha Goode after Boda had already target-locked on Goode, Goode is heard screaming as Boda began mauling…The Officers continued to let Boda maul and bite Goode…they just let Boda bite her for an extended period of time.”

The attack lasted 28 seconds.

After denying the officers’ motion for summary judgment, they appealed, Wilson denied their motions to stay the action pending a decision from the Ninth Circuit, and the matter proceeded to trial. There was a hung jury on March 5.

A pretrial conference is set for Feb. 22.

Ninth Circuit Decision

Yesterday’s memorandum opinion recites that qualified immunity is overcome only if the plaintiff shows the violation of a “clearly established” right. The right Goode claimed was that of intercession on the part of Lopez by causing Boda to cease biting her.

However, that right, if it existed, was not one that was “clearly established,” the opinion declares.

Under case law, an officer has a duty to block unconstitutional conduct by a fellow officer only where there is a “realistic opportunity to intercede,” the opinion says, commenting:

“Even assuming Lopez’s conduct violated Goode’s Fourth Amendment right to be free from unreasonable seizure, that constitutional right was not clearly established. Our precedent does not clearly establish when an officer has a ‘realistic opportunity to intercede.’ ”

It adds:

“Because the law does not clearly establish when an officer must intervene, Lopez is entitled to summary judgment on qualified immunity grounds for Ills failure to intervene when Boda was biting Goode.”

Zirkle’s Conduct

In affirming the denial of summary judgment to Zirkle, the opinion sets forth:

“Although Zirkle alleges he never intended for Boda to bite Goode. Goode alleges that Zirkle intentionally pushed Boda towards her, and that Boda “target- locked” on her. Because we must view the facts in the light most favorable to Goode, we must assume that Zirkle intentionally released Boda onto Goode.

“Our precedent clearly establishes that releasing a police dog to bite a person who neither endangers officers nor attempts to flee or resist arrest violates that person’s Fourth Amendment right to be free from unreasonable seizure.”

The case is Penaloza v. City of Rialto, 20-55164.


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