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Ninth Circuit:
No Immunity for Deputy Who Rushed to Aid of Partner
Judge Bumatay, in Dissent, Terms Majority’s Holding ‘Dangerous’
By a MetNews Staff Writer
A sheriff’s deputy who rushed to the aid of his partner in subduing a woman who was displaying hostility is not entitled to qualified immunity in an action over alleged use of excessive force in violation of the Fourth Amendment, two members of the Ninth U.S. Circuit Court of Appeals declared yesterday, drawing a dissent from Judge Patrick Bumatay, charging that the decision “is both against the law and dangerous to law enforcement.”
Circuit Judge Michelle Friedland and Senior Circuit Judge Susan P. Graber signed the memorandum opinion affirming a ruling by Magistrate Judge Sallie Kim that Contra Costa County Sheriff’s Deputy Christopher Thomas is not shielded from liability.
What Thomas saw when he arrived on the scene was Deputy Stephanie Nelson engaged in a quarrel with Tracy Pachote outside Pachote’s home. Nelson’s presence was precipitated by Pachote’s report of hearing gunshots in the neighborhood.
Viewing the precipitated onset of a physical altercation, Thomas joined with Nelson in pinning Pachote to the ground.
Majority’s View
As the majority recited the facts:
“Drawing all reasonable inferences in Plaintiffs favor, as we must at this stage, when Thomas began using force, he knew that Plaintiff was a witness who was not suspected of any crime, had heard Plaintiff repeatedly tell Nelson to leave her front porch while Nelson refused to do so, and, as conceded at oral argument, saw Nelson initiate physical contact against Plaintiff by grabbing her arm and the back of her head as Plaintiff passively resisted.”
Bumatay viewed the facts differently, saying:
“When Deputy Thomas arrived at the altercation between Pachote and Deputy Nelson, it is undisputed that he did not know the full story of what was happening. While he observed Pachote yelling at Deputy Nelson, he did not know what precipitated the argument. Instead, he witnessed the altercation turn physical just seconds before he arrived at the house.”
Graber and Friedland held that under the facts, as pled, Nelson had an opportunity to independently evaluate the situation, while Bumatay disputed that conclusion.
The majority said:
“A reasonable jury could find that Thomas knew that Pachote had neither committed a crime nor posed a threat, and that Thomas’s non-trivial use of force in pulling Pachote to the ground, dragging her, and placing his knee on her back, causing her to tear her meniscus, was therefore excessive.”
Officer’s Assumption
Bumatay countered:
“Nothing in the Fourth Amendment requires police officers to assume that other officers are acting against the law in using physical force. Nor does the Fourth Amendment require officers to acquire perfect knowledge of the situation before assisting another officer in a physical struggle. Instead, Deputy Thomas saw a fellow officer in physical trouble and decided to assist the other officer using minimal force. The majority is far off the mark in finding this a violation of the Constitution.”
Pachote was arrested for committing an alleged battery on Nelson but charges were later dropped. The defendants did not seek qualified immunity in connection with the arrest, but did assert it in connection with Pachote’s claim of an unlawful seizure of her by Nelson preceding the arrest.
The memorandum opinion reverses the denial of immunity to Nelson. a determination in which Bumatay joined.
Qualified immunity is available only where a state or local official does not transgress clearly established rights. The opinion says:
“Assuming, without deciding, that Nelson committed a constitutional violation, it was not clearly established at the time she acted that her conduct constituted an unlawful seizure.
‘In support of her claim that the law was clearly established, Plaintiff cites only an unpublished memorandum that postdates the conduct at issue and a single out-of-circuit opinion. Neither could clearly establish the law governing Nelson’s conduct, and we are aware of no other case that did so either.”
Friedland was appointed by President Barack Obama and Graber by President Bill Clinton, Bumatay was placed on the bench by President Donald Trump.
The case is Pachote v. Nelson, 23-4000.
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