Officers Fight for Immunity in Veteran’s Jailhouse Death

PHOENIX (CN) – Detention officers at one of Maricopa County Sheriff Joe Arpaio’s jails told the Ninth Circuit on Thursday that they should receive qualified immunity for their part in the death of a mentally ill veteran.

The family of Ernesto “Marty” Atencio sued Arpaio, Maricopa County and the detention officers in 2012, after Atencio was found dead in a jail cell the previous year.

Atencio, a 44-year-old Gulf War veteran with schizoaffective disorder, was arrested in 2011 and transported to Arpaio’s Fourth Avenue Jail.

According to court records, Atencio had his mugshot taken and was escorted to the “linescan” room where his handcuffs were removed.

Atencio’s mood was initially described as “humorous and jovial” by officers, but his demeanor shifted and he refused to obey an officer’s command to take off his shoes.

After a 30-second conversation, Officer Patrick Hanlon grabbed Atencio by the wrist, twisted his arm behind his back, and Officer Nicholas French used a chokehold on Atencio.

A number of officers then formed a “dog pile,” holding Atencio to the ground beneath them. While he was held down, Sgt. Jason Weiers used a Taser on him and Officer Anthony Hatton delivered a number of strikes to Atencio’s face.

Following the incident, which was partially caught on video, the officers moved Atencio to a cell, where he was later found unconscious. He was revived but later died in a hospital.

U.S. District Judge Paul Rosenblatt found last year that the detention officers involved in Atencio’s death do not have immunity.

“While these officers were holding Atencio down in the linescan room, Hatton delivered strikes to Atencio’s facial region and Weiers used the Taser on Atencio, both of which plaintiffs’ expert opined to be unreasonable uses of force,” Rosenblatt wrote. “There is a genuine factual dispute as to whether these officers were integral participants in the use of excessive force in the linescan room and/or the safe cell, as well as whether these officers violated a duty to intervene to prevent the use of excessive force.”

Sarah Barnes, an attorney for Hatton, argued that her client’s actions were appropriate because Atencio showed resistance in refusing to take off his shoe.

“We have to have clear precedent that every reasonable officer would have known that those actions were unconstitutional,” Barnes said.

“Isn’t it clearly established that you cannot just gratuitously punch a person?” asked Circuit Judge Michael Melloy, who sat by designation from the Eighth Circuit.

“You still have to look at the surrounding facts and context,” Barnes responded.

Ninth Circuit Judge Richard Clifton also questioned whether Hatton and the other officers should have reacted in such a manner to Atencio’s resistance.

“The facts are very much disputed,” Clifton said. “The label ‘active resistance’ does not mean there is no factual dispute.”

Barnes urged the three-judge panel not to overlook facts that favor of Hatton.

“Just because there are some that are disputed doesn’t mean we ignore them all,” Barnes said. “The level of resistance at that moment was not disputed.”

Larry Wulkan, an attorney for the Atencio family, told the judges the Ninth Circuit does not have jurisdiction over the matter.

“The district court ruled that genuine disputes of fact precluded it from conducting the qualified immunity analysis,” Wulkan said. “The court below explained that the video recording, when compared and combined with other evidence in the record, demonstrates that Atencio was not being combative, violent, aggressive or threatening toward anyone.”

Clifton questioned Wulkan’s claim that the Ninth Circuit lacked jurisdiction.

“Why can’t we decide?” Clifton asked.

“The facts are so hotly in dispute,” Wulkan replied.

Testimony from Officer Patrick Hanlon that he did not find Atencio threatening, coupled with video that showed Atencio in a “Superman” position should be considered, Wulkan argued.

“When you consider that and you combine with the video, there are legitimate factual disputes,” Wulkan said. “Marty was not being aggressive.”

Circuit Judge Paul Watford also sat on the panel.

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