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Ninth Circuit poised to uphold jury verdict in fatal shooting by BART officer

A jury's $7.2 million damages award to the family of Sahleem Tindle, a father of two killed by a transit officer in 2018, will likely stand.

OAKLAND, Calif. (CN) — A three-judge panel of the Ninth Circuit seemed disinclined to overturn a jury’s verdict awarding $7.2 million to the family of a young man shot and killed by a transit cop in 2018.

The jury found BART officer Joseph Mateu III used unreasonable force against 28-year-old Sahleem Tindle, whom they believed to be trying to surrender just moments before Mateu fired three bullets into Tindle's back on Jan. 3, 2018.

Mateu, at the time a 15-year veteran of the Bay Area Rapid Transit (BART) police, was responding to the sound of gunshots fired across the street from the West Oakland BART station.

A police body camera video shows Mateu running from the station to the nearby corner of 7th and Chester streets, where he found Tindle and another man, Rayvell Newton, wrestling on the ground for control of a handgun. The officer yelled "let me see your hands" multiple times before opening fire.

Alameda County prosecutors declined to bring criminal charges against Mateu, but his family filed a civil lawsuit for use of excessive force and wrongful death in which his mother Yolanda Banks-Reed and his two minor children said Tindle was just starting to rise from the ground and raise his hands to comply with Mateu's orders when he was shot and killed.

A jury agreed, awarding the family $5.375 million after a two-week trial in February 2020. They were also granted $1.9 million non-economic damages and $10,800 in funeral costs.

Representing Mateu on appeal, attorney Lori Sebransky said the jury based its verdict not on evidence, but on arguments presented by the family’s attorneys.

She said both Tindle and Newton ignored repeated commands to show their hands as they struggled over the gun, with Tindle holding the grip in his left hand and Newton holding onto the barrel.

“Mr. Tindle moves both hands in front of his body where the officer can no longer see. The gun does not drop. Two seconds later he raises an empty left hand which had held the gun and turns it toward Mr. Newton. The gun falls from Mr Tindle's hand when he's shot,” Sebransky said, recounting the events from the body cam video for the appellate panel. “From these objective facts, Sergeant Mateu deduces correctly Mr. Tindle transferred the gun from his left hand to his right instead of dropping it, and therefore Mr. Tindle remained armed as his left has was raised. The only thing we don't see is what what happening with Mr. Tindle’s right hand when he had the gun because his back was to Officer Mateu and we can't see that.

She continued, “Plaintiffs argued at trial without evidence that Mr. Tindle was trying to surrender but Mr. Newton was doing something that we can't see that prevented Mr. Tindle from raising that right hand. And they argue that therefore there cannot be an imminent threat and that what Sergeant Mateu should have done was just wait until he knew for sure whether Mr. Tindle posed a risk of shooting.”

“The jury as a matter of finding of fact found that Mr. Tindle was attempting to surrender,” observed U.S. District Judge Robert Lasnik, who was sitting on the panel by designation.

Sebransky called the jury’s finding speculative. “There is no substantial evidence that Mr. Newton was doing anything with Mr. Tindle's right hand that was preventing him from raising both hands and surrendering,” she said. “You have to raise two hands to show surrender unless there's some obvious reason that you can’t.”

She said Mateu could only consider what he saw on the scene at that time, and the jury found Tindle was still in possession of the gun even as he was attempting to surrender.

“I agree with you completely and it’s a very persuasive argument, but it seems that it's foreclosed because the jury looked at it as a matter of fact. I’m sympathetic because these cases are terrible to try,” said U.S. Circuit Judge J. Clifford Wallace, a Nixon appointee.

Lasik asked whether the verdict should be overturned simply because the jury didn’t give Mateu the benefit of the doubt.

“I've been wearing the black for 32 years and I've seen jurors bend over backwards to clear police officers in situations were I was shocked that they were giving the officer every benefit of the doubt,” Lasnik said. “This one may have gone the other way in the sense that the jury did not give Officer Mateu what I would have given him in terms of benefit of the doubt, but does that mean the jury verdict should be cast aside?”

"I'm not suggesting that we should ignore it. But on review our job is to see if it's legally supportable,” Sebransky said.

She said the case presents a scenario similar to Amons v. Tindall, where the Ninth Circuit found an officer acted reasonably when he shot Terry Amons several times because he believed Amons was reaching for a gun in the center console cupholder of his car.

Representing Tindle's family, civil rights attorney Ayana Curry said the circumstances of that case were completely different. “There, the officers could see his right hand and gave him every opportunity to raise his hand,” she said.

“The jury got to see exactly what the officer go to see. The jury also had the officer's testimony and his interview statements that happened within hours of the shooting.” Curry said, adding that Mateu initially said that he fired when he saw Tindle standing, a statement he later recanted at trial.

“We are all making inferences and deductions from the evidence in front of us. You cannot take this verdict away from the jury because you could come to a contrary conclusion,” she said.

U.S. Circuit Judge Michelle Friedland, an Obama appointee, joined Lasnik and Wallace on the panel. They took the arguments under submission.

Follow @MariaDinzeo
Categories / Appeals, Civil Rights, Government

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