Postverdict Immunity ‘Skewed’ Trial, Cop Says

SAN FRANCISCO (CN) - A Bay Area police officer who Tasered a suspect in front of his daughters says that a postverdict award of immunity to his colleagues "skewed" the judgment.

Frederick Jackson and his three daughters sued the Pittsburgh, Calif., police officers over a 2008 altercation at their home.

Jackson said four officers spoke "profanity-laced comments" to one of his minor daughters, and that the officers subjected him "to excessive and unnecessary force" when he objected to those comments.

They then "misstated the facts of their involvement and/or the behavior of plaintiffs in their reporting of F. Jackson's arrest and their treatment of all plaintiffs in the incident report," according to the complaint.

In July 2010, a jury ordered three of the officers to pay Jackson $250,000, plus $16,500 in punitive damages. The jury found that the officers had used excessive force against Jackson in violation of his Fourth Amendment rights, and that Officer G. Lombardi used his Taser against Jackson as retaliation in violation of Jackson's free-speech rights.

The jurors did not fight that the officers used excessive force in slamming Jackson against a vehicle, nor did they arrested Jackson without probable cause. Jackson's daughters were not awarded damages.

After the officers moved for judgment as a matter of law, a federal judge found "that qualified immunity covers all of the excessive force claims."

After vacating that part of the judgment, the judge found that immunity did not shield Lombardi's First Amendment retaliation. As such, the court ordered Lombardi to pay the $250,000 verdict.

Both sides appealed, with Lombardi's lawyer noting that all three officers used their Tasers on Jackson, so his client should not have to carry the verdict alone.

"If trial had been limited to Lombardi's singular liability under the First Amendment, then it would have been imperative to prove that Lombardi's taser alone brought down Mr. Jackson," according to a brief Lombardi filed with the 9th Circuit. (Emphasis in original.)

"Jackson had to prove that Lombardi's probe not only electrocuted him, but also that it was the first do so," the brief also states. "That demonstrated, Jackson then had to prove the damages attributable solely to that contact. He did neither - as he did not, the $250,000.00 cannot be assigned conveniently to Lombardi."

At a hearing before a three-judge panel of the 9th Circuit last week, Lombardi's attorney, Gary Lepper, said the untimely immunity finding "was like not granting that at all."

Allowing the jury to hear expert opinions on excessive force and other evidence "skewed the proceedings," Lepper said.

Judge Wallace Tashima indicated, however, that the jury received proper instructions and asked Lepper whether he had "any legal basis for this argument?"

Stephanie Bradley, representing the Jacksons, emphasized that "the trial court's decision to delay ruling [on immunity] was proper."

Lepper countered that "the officers need to be evaluated individually" as to damages.

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