Monday, May 13, 2013

Gonzalez v. F.E.V. (9th Cir. - March 23, 2013)

There's a dissent in this Section 1983 police excessive force case.  The panel consists of Judges O'Scannlain, Trott and Clifton.  One need not speculate as to the identity of the dissenter.

It's a fascinating case.  Judge Clifton's dissent raises an interesting point that I should have -- but haven't fully -- considered previously:  that in many police excessive force cases (as well as others), the sole surviving witnesses are the defendants themselves.  Accordingly, on a summary judgment motion, a core issue involves the degree of reasonable inferences necessary before a jury reasonably could conclude that the officers' story lacked credibility.  That's a darn good point, and it's one that I didn't sufficiently appreciate until I was reminded of it by Judge Clifton's dissent.

One can summarize Judge Clifton's dissent by saying that there was sufficient evidence here for a reasonable jury to find that the police officer deliberately shot the unarmed decedent in the head at point-blank range when the vehicle the decedent was driving was travelling four miles an hour.  The majority says that, as a matter of law, that's not excessive force.

Read it and see if you agree.