Fresno Ducks Lawyer’s Excessive Force Claim

FRESNO, Calif. (CN) — Fresno County dodged excessive force and unlawful arrest liability in a case where an officer on courthouse detail arrested an attorney who refused to hand over a child's toy wrench that was found in the purse of his client's family member.

U.S. Magistrate Judge Stanley Boone on Monday ruled in favor of Fresno County on attorney Richard Berman's municipal liability claims for excessive force and unlawful arrest, finding that Berman did not show that the county failed to properly train or supervise its deputies.

The case stems from an incident between Berman, who was 65 years old at the time, and Fresno County Sheriff's Deputy Tracy Sink in March 2012 at the Fresno County Criminal Courthouse.

According to Berman, he and a client were going through a security checkpoint at the courthouse when Sink detected a child's plastic wrench in the purse of a family member of Berman's client.

Sink said that the toy was not allowed in the courthouse and told the woman to throw it out, Berman says.

Berman says the woman instead handed the toy to him and he pointed out to Sink that the wrench was only plastic.

As Berman was in the process of telling the woman to take the toy back to her car, Sink forcefully grabbed him and placed him under arrest, Berman says.

The attorney claims that Sink used unreasonable force against him, even though he told her repeatedly that he was recovering from a serious spinal injury and pleaded with her not to hurt his back.

Sink allegedly grabbed Berman, violently threw him on a table and handcuffed him. Berman says that he was then forced to sit handcuffed on a stool in the lobby while in severe pain.

Berman was never prosecuted for the incident. He filed a lawsuit in March 2013 against Fresno County, Sink and other sheriff's officers, seeking punitive damages on various civil rights charges. Only the county and Sink remain as defendants.

Berman says the county did not adequately train its deputies on the proper procedure for lawful arrest and use of force.

However, the county has presented evidence that the department's training was in compliance with the minimum requirements for peace officers in California as mandated by Peace Officer Standards and Training, or POST.

Sink attended a POST-certified police academy and received basic POST certification. The county presented evidence that Sink was up to date on her training requirements, so Berman cannot win on his argument that the county failed to adequately train its deputies, Judge Boone said.

Berman also claims that the county does not adequately investigate or discipline its employees following complaints from the public. He pointed to four or five oral complaints about Sink being rude that were made by members of the public over a 10-month period prior to the incident between Sink and Berman.

Sink's supervisor, Sgt. George Bertsch, said in a deposition that he investigated each of these complaints and found that most of them were from people who were upset because they were trying to bring something into the courthouse that was not allowed.

Bertsch testified that he talked to Sink after each verbal complaint and explained that she might want to be a little nicer and that being rude was not acceptable. He testified that he did not think this was a problem that needed to be further addressed because of the small number of complaints Sink received compared to the large number of people she interacted with every day during those 10 months.

Based on this evidence, Boone found that these complaints do not support Berman's claim that the county failed to investigate and discipline its employees.

Furthermore, the county cannot be held responsible for the fact that Berman did not avail himself of the sheriff department's procedure to file a written citizen's complaint following his incident with Sink at the courthouse, Boone said.

"Plaintiff has not provided any evidence that the Fresno County Sheriff's Department had a custom or policy that was indifferent to Fourth Amendment rights' not to be subject to excessive force and unreasonable force, not to be unlawfully detained without a reasonable basis, and not to be falsely arrested without probable cause," Boone said, granting the county summary judgment on these claims.

However, the county is not entitled to summary judgment on Berman's municipal liability claim for retaliation for exercising his First Amendment right to question authority.

The county failed to properly address this claim in its motion for summary judgment.

Attorneys for the parties did not immediately respond to a request for comment.

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