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Monday, March 18, 2024


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Ninth Circuit:

Deputies’ Use of Non-Lethal Bullets, Dog on Unarmed Man Not Objectively Unreasonable

Motion for Judgment as a Matter of Law Properly Denied in Excessive-Force Suit


By Kimber Cooley, Staff Writer


The Ninth U.S. Circuit Court of Appeals held Friday that a judge properly denied a motion for judgment as a matter of law in an excessive-force case against two deputies by a man who, while unarmed, was shot with nonlethal projectiles and bit by a police dog while in a bathroom, refusing to leave.

The force was not objectively unreasonable given his history of violence and his refusal to let his daughter leave the house,  a three-judge panel said, affirming an order by District Court Judge Jennifer L. Thurston of the Eastern District of California denying his motion and rejecting his bid for a new trial. The appeal by plaintiff Alejandro Ochoa was heard before Circuit Judge Morgan Christen and Senior Circuit Judges Sidney R. Thomas and M. Margaret McKeown.

On Nov. 19, 2018, Ochoa sued Deputies Ryan Brock and Andrew Basset of the Kern County Sheriff’s Office asserting claims for excessive force under the Fourth Amendment to the U.S. Constitution and a state law claim for negligence arising out of his arrest on Jan. 27, 2018.

On the night of his arrest, Brock and Basset responded to a residence after a 911 call indicated Ochoa—the subject of an outstanding no-bail warrant for failure to appear on a felony spousal abuse case—was inside and refusing to let his daughter and two others leave the home. The deputies were able to rescue the three persons being held in the home, but Ochoa had locked himself in the bathroom.

When they breached the bathroom door, Ochoa was sitting on the toilet, with his shorts pulled up, and his hands near his waistband. Ochoa did not comply with commands to show his hands and put them over his head. Brock fired a 40 millimeter less-than-lethal round at Ochoa’s torso, but the projectile hit Ochoa in the testicle, instead, due to Ochoa standing up while the shot was being fired.

After being hit, Ochoa struggled with deputies and Basset released his canine, Hero, who bit Ochoa in the arm and shoulder.

After a five-day jury trial, the jury returned a verdict in favor of the deputies, finding that neither Brock nor Basset used excessive force against Ochoa or acted negligently.

Ochoa filed a motion for judgment as a matter of law or a new trial, arguing insufficient evidence existed to support the jury verdict. The motion only addressed the legal standards for the Fourth Amendment claim.

Thurston’s View

Thurston explained that a Fourth Amendment excessive-force claim balances the amount of force used against the need for that force under an objective reasonableness standard.

Finding that Brock’s use of the less-than-lethal round constituted significant force and Basset’s deployment of Hero amounted to intermediate force, she explained that both actions must be justified by a strong governmental interest.

To determine the government’s countervailing interest, she cited the 1989 U.S. Supreme Court case of Graham v. Carter, and said:

“In Graham, the Supreme Court provided three relevant factors to evaluate the circumstances facing the officers and their interests in using force: (1) the severity of the crime at issue, (2) whether the suspect posed an immediate threat to the safety of the officers or others, and (3) whether the suspect actively resisted arrest or attempted to escape.”

Noting that this list was not meant to be exhaustive, she said that a court must examine the totality of the circumstances in each case and rejected Ochoa’s assertion that the court must limit its evaluation to the time when the deputies actually used force and not take into account information about the arrest warrant or the fact that he was holding three persons hostage inside the home.

Severity of Crime

Looking at the severity of the crime underlying the contact with police, she wrote:

“The jury may have reasonably concluded that Ochoa’s history of alleged violence, especially in the domestic setting, suggests that he may present a dangerous or violent response during his encounter with Deputies Brock and Bassett. Moreover, Ochoa’s no-bail warrant for failure to appear in his domestic violence case suggests a propensity for evading criminal prosecution and arrest.”

The judge rejected Ochoa’s argument that he posed no immediate threat to the safety of the deputies at the time force was used as he was not armed and was seated. She said:

“In addition to confronting a potentially armed suspect, Ochoa’s history of violent behavior further corroborates that he posed a threat. As previously discussed, the Deputies had knowledge of Ochoa’s domestic violence history, priming them for a potentially dangerous situation before their arrival at the residence. Before entering the bathroom, officers rescued three individuals from the residence whom Ochoa would not permit to leave without the officers’ intervention.”

As to the final factor, Ochoa claimed that undisputed facts established that he only passively resisted officers by not following their instructions. Thurston disagreed, pointing out that “when the officers breached the bathroom, Ochoa was screaming and reaching around his waistband as if to resist officers with a weapon” and he was resisting the officers trying to arrest him at the time the dog was deployed.

 “Because Ochoa’s actions include a physical struggle, they do not constitute merely passive resistance as a matter of law,” she wrote.

The panel agreed with Thurston’s analysis. The jurists noted that “Ochoa’s motion turns on whether the evidence introduced at trial was sufficient” for the jury to determine that the deputies’ actions were objectively reasonable under the circumstances.

They found that “the evidence submitted at trial and the reasonable inferences drawn from it support[ed] the jury finding in favor of Brock on all three Graham factors.” The panel said:

“The evidence showed that Ochoa was not allowing anyone to leave the house and that, after he retreated to a bathroom, the deputies were not sure whether any additional hostages were in the room with him….Brock testified that Ochoa ignored deputies’ commands to surrender, that neither Ochoa nor the bathroom had been searched for weapons, and that Ochoa was screaming with his fists clenched near his waistband. Finally, the jury could have concluded that Ochoa was attempting to evade arrest by retreating to a bathroom, locking the door, not responding to the deputies’ instructions, and not complying after the door was breached.”

Strong Governmental Interest

As to Bassett, they said:

“The evidence permitted the jury to conclude that a strong governmental interest existed because Ochoa posed an immediate risk to the safety of the deputies when Deputy Bassett deployed his canine. Bassett testified that he was concerned that the deputies attempting to restrain Ochoa could have been injured in the struggle and that he did not know whether Ochoa was armed or if there was a weapon somewhere in the bathroom.”

They concluded that because the evidence did not give rise to but one reasonable verdict, Ochoa was not entitled to judgment as a matter of law.

Turning to his motion for a new trial, they found no abuse in discretion by Thurston in denying the motion as Ochoa had “provided no argument or authority” in support of the motion and the evidence was not so lacking to support the jury verdict as to justify a new trial.

The case is Ochoa v. County of Kern, 22-15276.


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