SAN FRANCISCO (CN) – The city of Oakland cannot dodge potential liability over a couple’s claims of an attempted home invasion and assault by two off-duty police officers, a federal judge ruled Tuesday.
Olga and Nemesio Cortez sued Oakland and five police officers in October 2016, claiming police tried to make them change their story to protect two drunk, off-duty officers who assaulted them, tried to break into their home, and threatened them with a real or simulated gun underneath a shirt.
The couple claims off-duty officer Cullen Faeth showed up to their house “drunk and wild-eyed” on the night of Dec. 7, 2015, violently banging on their door and demanding entry. When the Cortezes exited the house to stop him, Faeth “attacked the couple, grabbing and knocking Mrs. Cortez to the ground and kicking Mr. Cortez multiple times,” according to the lawsuit.
Faeth grabbed the wife, who was wearing only a bathrobe, put her in bear hug and knocked her onto the concrete – partially exposing her naked body, according to the couple.
Another off-duty officer, later identified as Sgt. Joe Turner, then ran out from the couple’s backyard and threatened them with a “simulated gun underneath his shirt” before fleeing, according to the complaint.
Meanwhile, Olga says her children were standing at the front door crying, “afraid for their and their mother’s lives.” The couple says they had to seek professional counseling because their children suffered nightmares and were afraid of being in their home.
U.S. District Judge Thelton Henderson on Tuesday refused to dismiss a municipal liability claim against the city, finding allegations that officers tried to coerce the couple “into giving false testimony” are sufficient to state a 14th Amendment claim.
The couple says police officers and supervisors came to their house twice in the early morning hours after the incident, trying to get them to “sanitize their story.” The officers asked Olga to say Faeth was “simply knocking on the front door” rather than banging, rattling and pushing the door while demanding entry. Police also asked her to say Faeth “simply knocked her over while falling down,” even though he had placed her in a bear hug and threw her to the ground, according to the complaint.
Henderson dismissed the couple’s claims of unreasonable search and seizure and excessive force against Turner, finding the sergeant was not acting “under the color of law” when he allegedly threatened them with a fake or simulated gun under his shirt.
The judge also dismissed a conspiracy claim against the defendants, finding the couple could not show the officers conspired to conceal the truth and prevent them from filing a federal lawsuit, since they “have, in fact, filed this federal lawsuit that remains pending.”
Additionally, Henderson dismissed claims of negligence and civil rights violations under the Bane Act against Turner, but refused to dismiss a claim of intentional infliction of emotional distress against the sergeant.
The judge dismissed all rejected claims without prejudice and gave the couple until May 12 to file a second amended complaint.
The Cortezes’ attorney, Lateef Gray with the Law Offices of John Burris, did not immediately return a phone call seeking comment Wednesday morning.
The Oakland Police Department deferred comment to the Oakland City Attorney’s Office, which did not immediately return a phone call and email seeking comment Wednesday morning.