Metropolitan News-Enterprise


Monday, March 29, 2021


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Ninth Circuit:

New Trial Required in Action Over Death of Tased Suspect

Majority of Panel Says Police Commission Finding That Officer Acted in an Objectively Reasonable Manner Should Have Been Admitted Once Expert Witness Testified to the Contrary; Judge Callahan Dissents


By a MetNews Staff Writer


The Ninth U.S. Circuit Court of Appeals on Friday, in a 2-1 decision, reversed a judgment pursuant to a jury verdict in favor of the City of Los Angeles in an action brought by the family of a man who died after an officer used a Taser on him, holding that an initially proper order barring introduction of Police Commission findings that the officers acted unreasonably was rendered invalid in light of testimony by a defense expert.

In violation of an in limine order by District Court Judge Consuelo B. Marshall of Central District of California that there be no testimony as to whether the force used by two Los Angeles Police Department (“LAPD”) officers was “objectively reasonable,” the defense expert, James Katapodis, so characterized the conduct of Officer Matthew Medina in using the Taser gun. The suspect, Alex Aguilar, who had been arrested June 9, 2016, on suspicion of violating a gang injunction, was attempting to swallow a bindle of heroin during a police-station strip search.

He died from choking on the bindle.

Circuit Judge Paul Watford, joined by District Court Judge Jed S. Rakoff of the Southern District of New York, sitting by designation, wrote in a memorandum opinion that they could not say that Marshall abused her discretion by initially barring introduction of the commission’s findings on the ground that it could lead to juror confusion and be accorded undue weight. However, they declared, the findings should have been admitted once Katapodis testified, and the exclusion of them requires a new trial.

‘Misleading Impression’

They explained:

“By itself, such testimony would be innocuous; after all, jurors were informed that Katapodis was a paid, external consultant. However, since the jury was presented with this testimony without the context of the LAPD Findings, the jury was left with a misleading impression regarding the LAPD’s own view of Medina’s conduct. Given Katapodis’s apparent insider expertise and the exclusion of the LAPD Findings, there was a substantial risk that the jury might wrongly have concluded that the LAPD thought that Medina’s use of force complied with LAPD policy. This substantial risk of a misunderstanding increased the probative value of the LAPD Findings and decreased the likelihood that they would be given undue weight.”

The jurists continued:

“…Katapodis’s testimony raised the very same issues that supported the trial court’s in limine ruling: possible juror confusion and possible undue weight assigned to the opinion of someone purportedly able to speak for the Department. At that point, the probative value of the LAPD Findings was no longer substantially outweighed by the risk of unfair prejudice. By continuing to exclude the LAPD Findings, the district court abused its discretion.”

The fact that the jury was told to disregard the statement was insufficient, Watford and Rakoff said. They noted that Marshall had authorized testimony that the officers had acted in compliance with LAPD policy, but barred testimony as to objective reasonableness, leaving that determination to the jury; what Katapodis said in response to a question was that LAPD policy is predicated on objective reasonableness and Medina acted in conformity with policy.

Connecting Dots

Striking that testimony, the opinion says, “did not preclude the jury from connecting the dots Katapodis had already drawn,” explaining:

“LAPD policy requires objectively reasonable use of force. In Katapodis’s view, Medina’s taser use complied with LAPD policy. Ergo, in Katapodis’s view. Medina’s taser use was a reasonable use of force. Katapodis’s testimony erased the distinction the trial court had attempted to draw between compliance with LAPD policy, on the one hand, and the objectively reasonable use of force, on the other, uniting the same potential jury confusion on which the trial court reasonably relied in excluding the LAPD Findings. If the plaintiffs had been permitted to introduce the LAPD Findings on cross-exanimation, the risk of additional juror confusion would have been minimal.”

Circuit Judge Consuelo M. Callahan dissented. She said:

“First, plaintiffs were entitled to use their expert to rebut Katapodis’ testimony concerning the propriety of the officers’ conduct and his knowledge of LAPD’s policy. Second, Katapodis’ testimony did not change the fact that admitting the LAPD’s post-incident findings would not likely assist the jury and might well confuse it.”

Other Findings

Agreeing with Marshall’s decision to bar introduction of the findings, she noted that the findings included those of the LAPD Use of Force Review Board, the majority of which found that two officers involved had acted properly. The other officer, Sergio Melero, struck the suspect.

Then-Police Chief Charles Beck determined that the officers acted inappropriately and the Police Commission unanimously agreed with him.

Callahan said:

“I cannot conclude that excluding such detailed post-incident findings, containing contradictory determinations, was an abuse of discretion.”

The case is Aguilar v. City of Los Angeles, 19-55764.

Possible Reexamination

Conduct of the officers is apt to be reexamined by the Los Angeles County District Attorney’s Office’s new special prosecutor, Lawrence S. Middleton.

On July 12, 2017, the Justice System Integrity Division of the Attorney’s Office completed its review of the conduct of Medina and Melero. Its report says:

“It is our conclusion that the officers used reasonable force when they attempted to control Aguilar before he choked to death on a bag of narcotics he was attempting to swallow, and are not criminally responsible for his death.”

The report goes on to say:

“Not only was the force used by the officers objectively reasonable, it was also done without criminal negligence….[T]he officers progressed in their use of force in response to Aguilar’s resistance. There is no evidence that they acted ‘in a reckless way that create[d] a high risk of death or great bodily injury.’ ”

The report notes that an autopsy revealed “that Aguilar’s death was a consequence of his choking on a large bindle of heroin” and that the coroner “noted the presence of injuries consistent with the officers use of force, but determined that they did not contribute to his death.” Inasmuch as the death “was not proximately caused by the officers’ actions,” there was no criminal liability, the division concluded.

A footnote says:

“In acting to prevent Aguilar from swallowing a large amount of narcotics, the officers were also acting to prevent a fatal overdose which would have occurred if the packaging were to fail after it was swallowed.”


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