9th Circuit panel skeptical of police arguments in lawsuit over man’s death

Six Northern California police officers are likely to face a wrongful death lawsuit by the family of a man who died after he was beaten and placed in a choke hold during a 2016 arrest, federal appellate justices indicated during oral arguments Wednesday.

The 9th U.S. Circuit Court of Appeals panel grilled the attorney for the Pittsburg officers, Noah G. Blechman of McNamara, Ney, Beatty, Slattery, Borges & Ambacher LLP in Pleasant Hill, about why his defenses were not factual claims that should be considered at a trial sought by the family of Humberto Martinez instead of in an interlocatory appeal.

"I've watched the video," 9th Circuit Judge Eric D. Miller told Blechman. "Could a jury conclude at some point the continued application of force was unreasonable? If a reasonable jury could find that, why doesn't that mean you lose?"

Blechman, who appealed U.S. District Judge Richard Seeborg's denial of his argument that the case should be dismissed because the officers were protected by qualified immunity, argued the district judge should have treated the claims officer by officer because they all didn't arrive at the same time or inflict the same injuries.

"We believe [Seeborg] cut a lot of corners in lumping all these officers together," Blechman said. "Qualified immunity is supposed to provide officers with breathing room when they're in difficult situations."

He emphasized Martinez was a very large man who resisted arrest during a brief chase and struggle that lasted less than three minutes inside the home of a friend he had been visiting before an officer tried to pull him over because his car registration had expired.

Michael J. Haddad, a partner with Haddad & Sherwin LLP who represents the plaintiffs, cited the recent death of George Floyd by a Minneapolis police officer now charged with murder, as well as the death of Eric Garner at the hands of police in New York City. Both said, "I can't breathe" before they died.

"When I think about what happened to Beto Martinez, I think of what happened to Eric Garner and George Floyd," he said. "The officers [in this case] are literally asking for breathing room."

The judges on the panel -- including 9th Circuit Judge Danielle J. Hunsaker and U.S. District Judge Douglas L. Rayes -- did not ask Haddad any questions. Martinez et al. v. City of Pittsburg et al., 19-15550 (9th Cir., filed March 26, 2019).

Haddad said the officers had no business pursuing Martinez in the first place for a "fix-it ticket" saying at most he committed a misdemeanor. "You can't engage in hot dispute over a misdemeanor."

Video of the police pursuit of Martinez and the struggle, based on their body cameras, is part of the court record and was cited by the judges during the argument.

Martinez's autopsy revealed 16 fractured ribs, a fractured sternum and other injuries. The pathologist listed his cause of death as "mechanical obstruction of respiration" due to the carotid choke hold by one of the officers, Haddad argued in court papers.

No criminal charges were filed against any of the officers.

The 9th Circuit panel took the civil case under submission at the end of Wednesday's argument, held on videoconference.