PHOENIX (CN) – The Ninth Circuit ruled Friday that Maricopa County Sheriff Joe Arpaio’s detention officers must face excessive-force claims in the death of a mentally ill Army veteran.
The officers asked a three-judge panel of the Ninth Circuit last month to grant them qualified immunity from a wrongful death lawsuit filed by the family of Ernest “Marty” Atencio, a 44-year-old Gulf War veteran with schizoaffective disorder.
Atencio was arrested in 2011 for allegedly kicking in a woman’s door and was taken to the Fourth Avenue Jail, run by Arpaio.
According to court records, officers described Atencio as “humorous and jovial” while having his mugshot taken, but his behavior shifted once he was moved to a “linescan” room.
In an incident partially caught on videotape, Officer Nicholas French used a chokehold on Atencio, and a number of officers formed a “dog pile” on top of the man after he refused commands to take off his shoes. Sgt. Jason Weiers used a Taser on him three times while he was held down, and Officer Anthony Hatton delivered a number of strikes to Atencio’s face.
Atencio was moved to a cell after the incident, where he was later found unconscious. He died at a hospital.
“Viewing the evidence in the light most favorable to Atencio, including the available video evidence, several of defendants’ acts could be found by a jury to constitute excessive force,” the panel ruled in a memorandum order issued Friday.
The three officers should have known they were “prohibited from the type and amount of force used against Atencio, including multiple strikes to the face, repeated tasering, and a knee strike, when Atencio was at most passively resisting, he posed no threat to the officers, and he was already being physically restrained by several officers,” the panel found.
Ninth Circuit Judges Richard Clifton and Paul Watford sat on the panel. They were joined by Circuit Judge Michael Melloy, sitting by designation from the Eighth Circuit.
“Today the Ninth Circuit found that there is evidence showing law enforcement officers, from both the city of Phoenix and Maricopa County, used excessive force against a United States Army Veteran – Marty Atencio,” Larry Wulkan, an attorney for the Atencio family, said in a statement. “While the Atencio family mourns the loss of Marty each and every day, they look forward to presenting Marty’s case to a jury so that justice may be served and, hopefully, others are not subject to the brutal treatment that resulted in Marty’s death.”
The ruling mostly affirms a decision last year by U.S. District Judge Paul Rosenblatt that the detention officers involved in Atencio’s death do not have immunity.
“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,” Rosenblatt wrote.
The panel did find qualified immunity should be granted to Sgt. Anthony Scheffner and Officer Patrick Hanlon for their roles in the incident.
Even though Scheffner may have seen Hatton deliver a knee strike to Atencio, “there is no evidence that Sergeant Scheffner directed or otherwise knew that the solitary knee strike would occur, physically participated in the knee strike, or had a realistic opportunity to stop the knee strike from happening.”
The panel found similarly for Hanlon, who grabbed Atencio by the wrist when he disobeyed commands.
“Hanlon could not have reasonably foreseen that his use of a wrist lock would cause or would trigger events ultimately leading to Atencio’s death,” the ruling states.
An attorney for the officers could not be immediately reached for comment.
Arpaio lost re-election to Paul Penzone, a Democrat and former Phoenix Police Department sergeant, last month after legal troubles and declining popularity plagued the six-term lawman.