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Friday, May 24, 2024 | Back issues
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Fed Judge Unimpressed|by Ranger’s Need to Taser

SAN FRANCISCO (CN) - A federal judge Thursday found that a park ranger unlawfully Tasered a jogger during an altercation that started when she stopped the man for violating a leash law, and escalated into a shouting match that ended with Gary Hesterberg writhing on the ground in handcuffs.

"The court finds that the intrusion on Hesterberg's Fourth Amendment interest to be free from being Tased greatly outweighs the minimal governmental interest in apprehending him for his violations of the law," U.S. District Judge Jacqueline Scott Corley wrote. "The court finds that this case involves an almost imperceptibly low government interest in apprehending Hesterberg."

Hesterberg had been running with his two dogs, Jack and Jo-Jo, one of them off-leash, in Rancho Corral de Tierra, a park near his home in Montara, that had just been transferred to the Golden Gate National Recreation Area.

During this transitional period, park rangers were issuing warnings to dog-walkers about a new leash law. Hesterberg leashed his dog when he saw Ranger Sarah Cavallaro, who approached him and said she would not cite him for violating the law, but would let him off with a warning.

Hesterberg said Cavallaro never identified herself, and he had no idea that she was a law enforcement officer with authority to arrest him.

Cavallaro asked for his name, address and date of birth. Hesterberg told her his name was Gary Jones, which did not check out with dispatch.

Cavallaro told Hesterberg he was not free to leave, though he tried to walk away three times.

Cavallaro grabbed Hesterberg's arm the second time he turned to go and then pulled her Taser on him. She held him at Taserpoint for 4 minutes while she called for backup.

Hesterberg asked her not to use the Taser because he had a heart condition. He asked her what gave her the authority to hold him, and she allegedly replied, "the Constitution."

Hesterberg said he told her, "That's no kind of answer. Come on, dogs, we're leaving." He turned away for the third time and she Tasered him in the back.

Judge Corley, who heard testimony for four days in August, said the severity of Hesterberg's crime was so small, and his behavior so nonthreatening, that Cavallaro was not justified in using the Taser.

Corley agreed with the government that Hesterberg did resist arrest by pulling away from Cavallaro, but "it still did not rise to the level of an individual who is physically assaulting the officer," the judge said. "The lack of any violent conduct on the part of Hesterberg is crucial."

Corley added: "The offenses are particularly inconsequential in the context of this case, given that Cavallaro's duty at the Rancho was to engage leash-law violators in an 'educational contact' that would inform the violator of the transfer of ownership to GGNRA. Cavallaro's mission was to merely warn off-leash dog-walkers that GGNRA's dog leash laws would be enforced against them in the future. In other words, Cavallaro and her superiors viewed leash-law violations on January 29, 2012 as not meriting even a citation. In light of that previous position, the court fails to see how the government can now plausibly claim its interest in pursuing such violations was so high as to necessitate Hesterberg's capture with near-maximum nondeadly force. Further, Hesterberg was nonviolent and posed no threat to Cavallaro or anyone else; thus, the government had no interest in capturing him because of a danger he posed."

Corley's ruling reflects her demeanor throughout the trial, in which she repeatedly asked government lawyers why Cavallaro simply didn't let the man go, and why detaining Hesterberg was so important that Cavallaro had to Tase him.

In her ruling, Corley called the constitutionality of government's invoking the warrants-check rule to ensure public safety "questionable."

"The government concedes that Cavallaro had no reasonable suspicion that Hesterberg had any outstanding warrants. Thus, given the questionable constitutionality of continuing to detain Hesterberg for the sole purpose of running a warrants check, the court is not persuaded that the need to run a warrants check elevates the government's interest in preventing Hesterberg's escape such that Cavallaro's use of force was reasonable," Corley wrote.

She also called into question the testimony Hunter Bailey, the National Park Service deputy chief of law enforcement, who testified for the government.

During trial, Corley seemed surprised when Bailey said he was not aware of 9th Circuit standards on excessive force, and even more surprised when he said that Cavallaro would have been justified in Tasing a 9-year-old girl in Hesterberg's situation, so long as Cavallaro "evaluated other options" first.

"The court cannot imagine a rational fact-finder that would find it reasonable to Tase a nonviolent and nonthreatening 9-year-old or 8-month-pregnant woman fleeing from nonserious misdemeanors," Corley wrote. "The court accordingly gives no weight to Bailey's opinions regarding the reasonableness of Cavallaro's use of force."

Corley ruled in Hesterberg's favor on his battery and negligence claims and awarded him $50,000 in damages, saying he deserved compensation for his mental and emotional distress, but "that distress is likely tempered by Hesterberg's acknowledgment of his own role leading to the Tasing; namely, lying to Cavallaro and never correcting his lie."

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