Birthday Excessive Force Case Revived in Calif.

     PASADENA, Calif. (CN) – Long Beach police must face civil claims after swinging a baton 11 times at a man whose birthday celebrations apparently got out of hand, the Ninth Circuit ruled Wednesday.
     Alejandro Velazquez’s birthday had started out on Oct. 24, 2009, with a low-key lunch out with his girlfriend.
     He returned home – a dwelling he shared with his mother – and continued the festivities with some friends into the night.
     Two Long Beach police officers broke up the gathering at about 3:30 a.m., after someone reported that the partygoers were outside, “drinking [and] being loud.”
     From there, the accounts diverge.
     Officer Kalid Abuhadwan claims that he approached Velazquez among a group of men drinking beer in the street, and that Velazquez told him to “fuck off.”
     The officer says he told Velazquez to put his hands behind his head and gave him the opportunity to roll over on his stomach before he began striking him with the baton.
     Velazquez and the other witnesses meanwhile insist that no one was drinking in the street when Abuhadwan approached them, and they deny that Velazquez used any profanities.
     In addition to denying that Abuhadwan advised Velazquez to put his hands behind his head or roll over onto his stomach, several witnesses say they heard Velazquez cry that he was “not about violence” during the beating.
     No charges were ever brought against Velazquez, who required finger surgery and ear sutures.
     Though the police prevailed on Velazquez’s excessive-force claim after a federal trial, a three-judge panel reversed Wednesday and revived various other claims that the lower court dismissed.
     There was “certainly sufficient evidence at trial on which a reasonable jury could have concluded that no probable cause existed, based both on evidence that Velazquez did not in fact resist Abuhadwan and evidence that Velazquez did not impede Abuhadwan in the exercise of his lawful duties,” Judge Marsha Berzon wrote for the court.
     Though Velazquez “indisputably presented significant evidence” for his claims, but the court pronounced his testimony “generally not credible,” the 40-oage opinion states.
     Velazquez testified that the only “resistance” he posed to Abuhadwan the altercation was his asking something along the lines of “what’s up” when police arrived in front of his home.
     “Such benign questioning cannot give rise to probable cause,” Berzon said.
     A reasonable jury “could conclude that Abuhadwan might simply have been upset at being subjected to what he believed to be mild sarcasm or disrespect,” the decision states.
     Berzon said the jury alsowas not provided any “real opportunity” to consider Velazquez’s excessive force claim, Berzon said.
     “Instead, the district court effectively required the jury to presume that the arrest was constitutionally lawful, and so not to consider facts concerning the basis for the arrest,” the decision states (italics in original).
     In doing so, the trial court “implied simultaneously that Velazquez was in fact resisting or failing to obey the police officer’s lawful instructions,” Berzon found.
     In addition to reviving Velazquez’s claims for unlawful arrest and excessive force, the court also sent his municipal-liability and state-law claims onto trial.
     “Plaintiffs in cases challenging police action, like other plaintiffs in civil cases in federal court, have a constitutionally-based right to a jury verdict as long as they present evidence on which a reasonable jury could decide in their favor,” Berzon said.
     “Velazquez was not accorded his right to such a verdict at all.”
     Howard Russell with the Long Beach city attorney’s office called the decision disappointing.
     “We are thinking about and looking over our options for petitioning reconsideration,” Russell said in an interview.
     Velazquez’s attorney Mitchell Keiter said the case reaffirmed why juries are necessary.
     “This case reinforces why we need juries, because it’s not for the court to evaluate different witnesses’ testimony,” Keiter told Courthouse News. “The civic point in a broader context is that certain people’s talking to the police in what they might perceive as a disrespectful way doesn’t mean it’s an arrestable offense.
     “It’s important that officers distinguish between truly violent dangerous people and those who are exercising their First Amendment rights.”

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