Police Slaying of Napa Man Slated for Jury Trial

     SAN FRANCISCO (CN) – Jurors should resolve most claims related to a man who was shot in the back of the head while unarmed and possibly handcuffed, a federal judge ruled.
     Police officers had responded to the Napa, Calif., home of Richard Poccia on Nov. 28, 2010, when the 60-year-old nurse was in a state of mental health distress. Sgt. Amy Hunter determined Poccia was a danger to himself and should be detained on an involuntary psychiatric hold under Section 5150.
     Poccia told police on the phone that he would come out of his house unarmed, but his family says the police escalated the situation by launching a “full-scale SWAT action.”
     Officers allegedly shouted conflicting directions while pointing their guns at Poccia. After Officer Brad Baker stunned Poccia with a Taser gun, Officer Nick Dalessi shot Poccia at close range in the back of the head with an assault rifle, according to the complaint.
     One witness, neighbor Paula Dunn, allegedly said Poccia was already in handcuffs when he was shot.
     Hunter had assured Poccia that if he came out of his house, officers could make sure he was all right and he would not be arrested, according to the complaint filed by Poccia’s widow, Samanda Dorger, and daughter, Gabrielle Poccia.
     U.S. District Judge William Orrick found Thursday that most of the allegations raised questions of fact that a jury should resolve.
     The court could not “disregard Dunn’s unequivocal testimony that she believed Poccia was cuffed at the time he was shot,” according to the ruling.
     Gregory Fox, an attorney for the defendants, emphasized in an interview that Dunn did not even identify Dalessi as the shooter.
     “We will have a jury trial to determine this one female witness is credible or not but I don’t think she is,” said Fox, of Bertrand Fox & Elliot in San Francisco.
     Though other testimony and the evidence suggest that Dalessi fired a rifle at Poccia before he was in handcuffs, Dunn said the officer who shot Poccia pulled a revolver out of his holster and shot Poccia after Poccia had been in handcuffs for a couple minutes, Fox said.
     Dunn was “factually wrong, admittedly wrong on many other points,” the lawyer added.
     Orrick also noted that he “cannot say on summary judgment that Officer Dalessi’s use of lethal force was reasonable as a matter of law.”
     Under the 14th Amendment, “only official conduct that ‘shocks the conscience’ is cognizable as a due process violation,” the ruling states.
     Here, the “plaintiffs’ Fourteenth Amendment claim is based on the killing of Poccia, which deprived them of their liberty interest to enjoy their family relations with him,” Orrick wrote. “Whether Dalessi was deliberately indifferent when deliberation was possible or acted with purpose to harm turns on whether Poccia was in handcuffs at the time of the shooting, as Dunn testified. If the jury determines that Poccia was in cuffs at that point, and Dalessi knew it, his conduct readily meets the ‘shocks the conscious’ standard.”
     Orrick dismissed allegations that Hunter and Dalessi “intentionally or recklessly provoke[d] a confrontation,” which requires plaintiffs show that the provocation that led to the use of force was itself “an independent Fourth Amendment violation.”
     “Plaintiffs have failed to allege or point to evidence demonstrating that either of the defendants’ preshooting conduct constitutes an independent constitutional violation,” Orrick wrote (emphasis in original). “At oral argument, plaintiffs argued that when Poccia discovered the armed officers he felt unable to leave and he was, therefore, unconstitutionally detained prior to the use of force. However, the record is undisputed that at the time of the incident Poccia met the criteria for a 5150 hold or at least a 5150 evaluation, and therefore, he could be detained for that evaluation. Moreover, plaintiffs cite no case law that would support their assertion that the officers’ conduct in their attempt to ‘detain’ Poccia for the 5150 evaluation rose to the level of an unconstitutional provocation under the Fourth Amendment,”
     The attorney for the defendants applauded this finding.
     “We appreciate the fact that the judge found no basis for plaintiffs’ claim that two individual officers had somehow created a dangerous situation,” the lawyer said.
     The plaintiffs additionally did show that Hunter or Dalessi deliberately coerced or intimidated Poccia, according to the ruling.
     Though plaintiffs argued that Hunter drew Poccia out of his home “under the false pretense of a low-key conversation with the police, only to ensnare him in a SWAT-style confrontation,” Orrick found that these allegations “cannot support a claim that defendants deliberately or spitefully coerced, intimidated or threatened Poccia, and there is no other evidence in the record of any coercion, intimidation or threat.”
     Fox said it was “important to note the judge found it was undisputed that Mr. Poccia was subject to a Welfare and Institution Code 5150 detention, which by law means a person is a danger to himself and others,” which justified the defendants detaining him for a mental-health check.
     U.S. District Judge Yvonne Gonzalez-Rogers refused last year to toss a Monell claim against the city of Napa. The doctrine takes its name from Monell v. NYC Department of Social Services, a 1978 Supreme Court case that first established local government accountability for unconstitutional acts.
     Poccia’s wife and daughter are represented by Michael Kelly of Walkup, Melodia, Kelly & Echeverria in San Francisco. Kelly did not respond to a request for comment.
     Napa is a defendant along with officers Hunter and Dalessi.

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