Man Gets New Trial for Clogged Toilet Beating

     (CN) – The 9th Circuit on Tuesday granted a new trial to a California man who says guards at the Sacramento County Jail beat him when he complained about an overflowing toilet.
     Robert Hunter claims that he was put in a detox cell with a clogged toilet while being held on drunken driving charges in 2005. When Hunter complained, several Sacramento County Sheriff’s Department deputies allegedly threw him to the floor, fracturing his elbow. Hunter’s co-plaintiff, Howard Eley, claimed Sacramento deputies shoved, slapped and choked him without provocation in 2004.
     In their federal excessive-force action against the county, the sheriff’s department and several officials, Hunter and Eley presented the testimony of a former deputy referred to as Lt. Twomey, who “declared that there were 40 to 50 ‘major incidents’ of excessive force at the main jail from 2000 to 2005,” and that “officials in the jail repeatedly failed to investigate the incidents, discipline the guards, or take other action to address the problem,” according to the ruling.
     Twomey’s testimony was meant to establish Sacramento County’s liability by showing that there was a “practice and custom” of excessive force in its jail, in violation of its own policies. But when the case went to the jury, U.S. District Judge Garland Burrell refused to adopt instructions suggested by the plaintiffs. Instead, he told the jury that “‘practice or custom’ means any permanent, widespread, well-settled practice or custom that constitutes a standard operating procedure of the defendant,” the ruling states.
     That mistake was serious enough to warrant a new trial, the federal appeals panel in San Francisco ruled.
     Burrell should have instructed the jury that “a custom or practice can be supported by evidence of repeated constitutional violations which went uninvestigated and for which the errant municipal officers went unpunished” – evidence of which Twomey offered in his testimony, the ruling states.
     “Without the plaintiffs’ proposed instructions … the jury would not have known whether to consider the evidence that numerous instances of excessive force at the main jail were never investigated and that their perpetrators were not punished,” wrote Senior U.S. District Judge Louis Pollak, sitting on the three-judge appellate panel by designation from the Eastern District of Pennsylvania. “Indeed … there is some risk that the jury, relying solely upon the definition of practice or custom … would have thought it improper to consider such evidence at all.”
     The panel unanimously vacated the jury verdict and remanded the case to District Court for a new trial. 

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