Metropolitan News-Enterprise

Wednesday, September 5, 2018

Page 1

Ninth Circuit:

Police May Use Violence Toward Bystander in Extricating Him From Zone of Danger

Panel Says Officer Properly Pointed Gun at Man, Pulled, Pushed, Dragged Him, to Prevent Him Being Caught in Cross-Fire

By a MetNews Staff Writer

The Ninth U.S. Circuit Court of Appeals has held that an Upland police officer did not use excessive force in extricating a man from danger at the scene of an arrest by pointing a gun at his head, pulling him from his car, shoving him to the pavement which caused his thumb to be broken, and dragging him to safety.

In a memorandum opinion, a three-judge panel on Friday affirmed a Sept. 1, 2016 summary judgment, granted by Chief District Court Judge Virginia A. Phillips of the Central District of California, in favor of the City of Upland, in San Bernardino County, and Officer Lavell Brown.

Plaintiff Harshod Mehta sued, alleging violation of his federal constitutional rights, as well as statutory rights, and his wife, Kaushika Mehta, sued for loss of consortium.

Browns actions took place after a high-speed chase ended in a fleeing suspect crashing his car into Mehtas. While the suspect remained in his vehicle, encircled by officers, Brown undertook to remove Mehta from the zone of danger, perceiving that he might otherwise be caught in cross-fire or wind up being used as a hostage.

Panels Opinion

A Ninth Circuit panelcomposed of Circuit Judges Kim Wardlaw, Jay Bybee, and Sandra Ikutasaid:

[T]he government had a strong interest in arresting those suspected of committing felonies and in protecting the safety of the officers and public. Mehtas presence in his car not only impeded the officers ability to apprehend their suspect, but also posed a severe risk to Mehtas own safety and that of the officers who would be forced to maneuver around Mehta while engaging with a hostile suspect. Eliminating such a threat to officer or public safety is among the most important governmental interests justifying the use of force .

When the intrusion on Mehtas Fourth Amendment interests are thus weighed against the strength of the governmental interest, there exists no genuine issue for trial. The type and amount of force inflicted on Mehta was low, and was justified by the governments strong interest in public and officer safety. The district court correctly found that no rational trier of fact could find for Mehta, and appropriately granted summary judgment.

Qualified Immunity

Even if Brown did use excessive force, the opinion continues, he would be entitled to qualified immunity because there is no case declaring that conduct such as Browns is wrongful.

An officer in Officer Browns situation could reasonably believe that the amount of force he used was lawful to ensure the safety of both officers and the public, the opinion says.

State claims for battery and negligence must fall, the opinion declares, based on Browns objectively reasonable belief that he acted properly for the sake of the publics safety and Mehtas.

It adds that Kaushika Mehtas action for loss of consortium necessarily fails because it is dependent upon the viability of her husbands causes of action.

The case is Mehta v. City of Upland, 17-55553.

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