Facts

On Feb. 16, 2005, at approximately 10:05 p.m., Coalinga Police Officer Robert Oliveira observed plaintiff Elton Foster riding a bicycle away from the area where a car burglary had just occurred. Officer Oliveira initiated contact with Foster to investigate further. Foster was visibly angry and upset about being stopped. Due to his behavior and observation of objective symptoms, Officer Oliveira suspected Foster might possibly be under the influence of drugs.

When Officer Oliveira told Foster that he would like to conduct a drug evaluation, Foster became increasingly agitated and refused to comply with Officer Oliveira's directives. Due to Foster's behavior and obstruction of his investigation, Officer Oliveira removed his Taser from his patrol car. After showing Foster the Taser and the arrival of Sergeant Gabe Torres on the scene, Foster sat down on the curb and began to comply with the officers' requests. Officer Oliveira returned his Taser to the patrol car.

When the officers told Foster that they wanted to continue with their investigation to determine if he was under the influence of drugs, Foster rose from the curb and refused to submit to their requests. Sergeant Torres then told Foster he was under arrest (for delaying and interfering with the officers' investigation) and attempted to place Foster into handcuffs. Foster grabbed Sergeant Torres and shoved him away. At this point, fearing for the safety of Sergeant Torres, Officer Oliveira released his K-9, Dax, and gave him the apprehension command. When Dax approached Foster, Foster stood still at attention. Dax did not engage and returned to Officer Oliveira, who put him into the patrol car.

The officers began giving Foster commands to get on the ground, however, Foster refused to comply and backed away from the officers. Officer Oliveira again deployed his Taser, this time firing it at Foster. The Taser made contact with Foster, who immediately dropped to the ground upon activation.

Sergeant Torres immediately attempted to handcuff Foster, however, Foster physically resisted. The Taser leads had also been severed therefore the Taser could not be re-deployed. Foster was able to push away Sergeant Torres and get to his feet.

Sergeant Torres continued ordering Foster to the ground, however, Mr. Foster continued to refuse to comply. Sergeant Torres then deployed his Orcutt Police Nunchaku ("OPN") and attempted to strike Foster's leg to gain compliance. Foster was able to move away from the strike. Sergeant Torres attempted a second strike to Foster's arm and grabbed him to prevent him from jumping away. However, when Sergeant Torres attempted the strike, Foster tried to jump back causing his head to go down. This caused Sergeant Torres to unintentionally strike Foster in the head causing about a one-inch long laceration requiring medical treatment.

Foster was placed into custody and arrested for resisting a peace officer in the performance of his duties, battery on a peace officer, and being under the influence of a controlled substance.

Foster was acquitted on the criminal matter after a bench trial.

PLAINTIFF'S CONTENTIONS:
The plaintiff contended that the force used against him was excessive under the circumstances and that he was falsely arrested.

DEFENDANTS' CONTENTIONS:
The defendants contended that the force used was appropriate and necessary under the circumstances in order to get Foster under control and into custody. Further, there was sufficient probable cause to arrest Foster for the violations listed above.

Settlement Discussions

At a settlement conference held before trial, the plaintiff made a settlement demand of $250,000.

Injuries

The plaintiff received an approximately one-inch laceration to the side of his head requiring five staples. He also claimed the incident resulted in post-traumatic stress disorder and depression.

Result

Defense verdict.

Other Information

FILING DATE: Nov. 10, 2006.

Deliberation

six hours

Length

seven days