California Cop Can’t Duck Retaliation Claim

     SAN FRANCISCO (CN) – Claims that a Union City, Calif., police officer put a man in an immobilization device and then taunted him will go to trial, a federal judge ruled.
     Gary Castro, 52, was working maintenance and security at an apartment complex in Union City on Feb. 4, 2013 when he saw a “repeated trespasser,” Sau Nguyen, 68, who was dumping trash on the ground in his search of recycling materials. The men got into a fight in which both were injured.
     Union City police Officer Christopher Figueiredo arrived to find Nguyen hurt and bleeding. Nguyen, who is 5-foot-5 and 110 pounds, said Castro, 6-feet tall and 240 pounds, kicked him in the chest, knocking him down. Castro said he raised his foot to defend himself from Nguyen’s attack.
     After hearing both versions of the story, Figueiredo arrested Castro for battery with serious bodily injury and other charges.
     Castro says it wasn’t that simple. He says Figueiredo zeroed in on him as the guilty party from the start, mistreating him and refusing to take his claims of injury seriously.
     Figueiredo, with help from another officer, put Castro in an immobilization device called The Wrap, designed by law enforcement to control violent subjects.
     Castro says he was dizzy and hyperventilating from the trauma of the events and that he had an injured tailbone and elbows. He says the wrap cut off his oxygen and something inside the device pierced his stomach.
     After they placed a full helmet on him and threw him into a squad car, Castro says, the officers leaned against the car, “drinking beverages, laughing, waiving and taunting” him as he begged them to fix the wrap.
     The Alameda County District Attorney’s Office filed a criminal complaint against Castro on Feb. 6, 2013, but dropped the charges on Feb. 17, 2015.
     Castro sued Figueiredo and the city on Jan. 16, 2014 for excessive force, unlawful arrest, First Amendment retaliation, failure to train/supervise, malicious prosecution and substantive due process.
     The defendants sought summary judgment.
     U.S. District Judge Maria-Elena James granted the motion on all claims except excessive force and retaliatory use of force.
     “The court cannot find as a matter of law that Officer Figueiredo did not violate plaintiff’s right to be free from excessive force,” she wrote in an April 19 order. “First, as to the quantum of force used, the parties dispute how much force was applied, with defendants contending the officer applied a WRAP only to plaintiff’s legs, and plaintiff asserting the device was a full body WRAP restraint. The exact extent of the restraint and how the officers applied the WRAP device is uncertain.”
     James said there is “a dispute as to whether plaintiff actively resisted the officers,” but that given the details “the court cannot find Officer Figueiredo’s use of force objectively reasonable as a matter of law.”
     James also denied the summary judgment on Castro’s First Amendment claim for retaliatory use of force, stemming from Figueiredo’s anger at his continued cries of pain from the wrap and his decision to throw Castro into the squad car.
     “A reasonable jury could find that Officer Figueiredo’s actions were done in retaliation for plaintiff’s constant requests and expressions of need for medical attention and that Officer Figueiredo used force in an attempt to chill that speech,” the judge wrote.

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