9th Circuit ruling favorable for Occupiers to hold police, gov’ts accountable for excessive force
6:51 am in Uncategorized by joe shikspack
A three judge panel of the 9th Circuit U.S. Court of Appeals filed an unanimous ruling in Nelson v. City of Davis. The student plaintiff, Timothy Nelson was seriously and permanently injured by the excessive use of force by police in a 2004 incident at UC Davis. The Court found that the police actions violated a basic constitutional right, the Fourth Amendment right to be free of unreasonable seizure and invalidated qualified immunity for the police, meaning that police could be held liable for damages. This ruling should offer considerable support to Occupiers pressing suit against police and governments for their often brutal and excessive use of force against peaceful protesters. -=-=- The incident is described in the decision and some of the details are strikingly similar to reports of police attacks on Occupiers – emphasis in quoted portion is mine:
Photo: Charles de Jesus / Flickr
Timothy Nelson, a former student of the University of California at Davis (“U.C. Davis”), suffered permanent injury when he was shot in the eye by a pepperball projectile fired from the weapon of a U.C. Davis officer when U.C. Davis and City of Davis police attempted to clear an apartment complex of partying students. Officers shot pepperball projectiles in the direction of Nelson and his friends as the students stood in the breezeway of the apartment complex, attempting to leave the party and awaiting instruction from the officers. The officers did not provide any audible warning prior to shooting towards the unarmed and compliant students, and never informed the young partygoers how to appropriately extricate themselves from the apartment complex in order to avoid becoming the target of police force. …
The officers gathered in front of a breezeway in the apartment complex that was described as a “very narrow and confined space.” A group of fifteen to twenty persons had congregated in this breezeway on the ground floor, including Nelson and his friends. The students were attempting to leave the party but the police blocked their means of egress and did not provide any instructions for departing from the complex. …
A pepperball launched from one of the officers’ guns struck Nelson in the eye. He immediately collapsed on the ground and fell into the bushes where he writhed in pain for ten to fifteen minutes. Although unable to see, Nelson heard the officers proceed past where he lay, but none of them provided assistance. Some time later, Nelson was removed from the scene and driven to the hospital. Later that evening, Lieutenant Pytel, the incident commander at the scene learned that an individual was injured during the dispersal of persons at the apartment complex and sent Wilson to the hospital to ascertain whether that individual was injured by the officers’ use of force and whether that individual had committed a chargeable offense. The officers were unable to find any crime with which to charge Nelson — thus no charge was ever filed against him.
The court ruled that the use of force against Nelson was excessive and that police officers may be held liable for injuries caused by non-lethal weapons used for crowd dispersal in cases of excessive use of force. The court stated that a reasonable officer would have known that the conduct engaged in and similar conduct would be unconstitutional (emphasis mine):
