Police-excessive-force case is finally over after four trials. Defense verdict. San Diego County.

Facts and Background

• Facts and Background:

  The event happened in the mid-afternoon of May 9, 2006. The loss prevention officer at the Long’s (now CVS) drug store in Encinitas saw plaintiff shoplifting. He detained and handcuffed her and notified the San Diego Sheriff’s Department, which provides law enforcement services in Encinitas. Defendant Terrell responded to the store. Defendant was in uniform. He drove a marked patrol car. He was a dog handler. His trained police dog rode in the rear seat area. He carried a remote control on his service belt to pop the car’s back door open if he needed the dog while he was away from the car. The dog was trained to run to him when the door popped open.

  Because plaintiff may have carried stolen goods out of the store and returned, defendant wanted to search her vehicle for additional stolen goods before releasing her with a petty theft citation. His suspicion was not allayed when she denied driving to the store even though she had a car key in her possession.

  Plaintiff finally acknowledged that her vehicle was in the parking lot in front of the store. Her handcuffs were removed. She agreed to walk to her vehicle so defendant officer could search for stolen goods. She stood nearby as defendant looked under the seat, where he found methamphetamine and a scale. Defendant arrested plaintiff for drug possession. His patrol car was fitted for the dog and could not carry arrestees. He intended to handcuff plaintiff and await arrival of another deputy and patrol car to transport plaintiff, but she said: “I’m not going to jail.” She swung at him with her right hand. He radioed for “code cover.”

  The Encinitas Sheriff’s Station was located a few hundred feet from the store. A “code cover” call causes all available deputies to rush to the scene with emergency lights and sirens. The first cover unit (Deputy Stemper) arrived about one minute after the “code cover” call. Meanwhile plaintiff and defendant lost their balance while struggling and fell to the pavement. She landed face down; he landed face down on top of her. He struggled to control her hands. He felt her right hand tugging on his duty belt, touching his holstered gun on his right hip. He believed she was trying to get his gun. Defendant told plaintiff he would use his dog unless she stopped. She replied that he didn’t have a dog. He remotely popped open his patrol car’s door. It was parked alongside the curb in front of the store. The dog performed as trained, running past bystanders towards the defendant’s voice. Plaintiff was face down under defendant as they struggled. The only exposed part of her body was the top of her head. The dog bit her scalp. She began hitting the dog. The dog bit for five to ten seconds, releasing the bite when distracted by Deputy Stemper’s patrol car, which suddenly stopped a few feet away. The dog tore portions of plaintiff’s scalp. 

  Plaintiff pleaded guilty in San Diego County Superior Court to resisting arrest by defendant, pursuant to Penal Code § 148(a)(1), along with petty theft and possession of controlled substances. Afterwards, in August 2007, she filed her lawsuit in the United States District Court for the Southern District of California. In May 2009 the District Court granted summary judgment based on Heck v. Humphrey, 512 U.S. 477 (1994), which bars civil actions that imply invalidity of final criminal adjudications. Lawfulness of the officer’s conduct is an essential element of a § 148(a)(1) offense, so plaintiff’s allegations of unlawful force implied invalidity of her conviction.

  Plaintiff appealed to the United States Court of Appeals for the Ninth Circuit, which reversed summary judgment as to the Heck v. Humphrey issue. The opinion divided the continuous event into separate sub-events, and construing conflicting evidence in a light favorable to plaintiff. According to the Ninth Circuit opinion, plaintiff “struggled briefly with Deputy Terrell after they were on the ground by ‘jerking side to side.’ Deputy Terrell got both of Hooper’s hands behind her back. She stopped resisting when Deputy Terrell instructed her to do so.” (Hooper v. County of San Diego, 629 F.3d 1127, 1129 (9th Cir. 2011).) Plaintiff had pleaded guilty to § 148(a)(1) without subdividing the minute-long event. The Ninth Circuit concluded: “a conviction under California Penal Code § 148(a)(1) does not bar a § 1983 claim for excessive force under Heck when the conviction and the § 1983 claim are based on different actions during ‘one continuous transaction.’” (Hooper at 1134.)

  In an Ohio federal case based on equivalent facts and law, the Sixth Circuit expressly declined to follow the reasoning of the Ninth Circuit’s Hooper opinion. (Hayward v. Cleveland Clinic Foundation, 759 F.3d 601, 612, fn.4 (6th Cir. 2014).) However, the Hooper opinion continued to be binding in this case.

  The case was tried four times, each time to eight-person juries. The first and fourth trials ended in defense verdicts. The second and third trials resulted in hung juries. The first jury trial was in September-October 2013 and ended in a defense verdict. The store’s loss prevention officer testified that he saw plaintiff’s hand on defendant’s gun during the ground fight.

  In January 2015, plaintiff was granted a new trial because the trial judge disbelieved the store officer’s testimony. (Civilian eyewitnesses who also testified were 75 to 100 feet away and could not see Deputy Terrell’s right (gun) side from their vantage points in front of the store.) In June 2017 plaintiff’s settlement demand of $1,500,000 was declined. The second jury trial was held in October 2019. The second trial jury was unable to agree on a verdict and a mistrial was declared. In September 2019 plaintiff’s settlement demand of $850,000 was declined. In January 2020 plaintiff’s settlement demand of $900,000 was declined. In March 2020 the third jury trial was held.  The jury was again unable to agree on a verdict and the third trial again ended in a mistrial. Jurors who spoke afterwards said that the split was 6-2 in favor of Deputy Terrell. In August 2021 plaintiff’s settlement demand of $800,000 was declined. In September-October 2021 the fourth jury trial was held. The store officer was again not called to testify for the same reasons as before.

  Plaintiff focused on a new theory that the dog kept biting for an excessive time after plaintiff stopped resisting, impliedly conceding that she kept resisting until the dog began biting her. The jury returned a defense verdict.

  In November 2021 plaintiff moved for a new trial or judgment as a matter of law. In March 2024 the trial judge denied that motion, noting that it was harmless error for the jury to have answered the interrogatories under the circumstances, even though the jury had been instructed to answer the interrogatories only if they found liability.

  In April 2024, plaintiff filed another appeal to the Ninth Circuit. In August 2024, plaintiff made a $200,000 settlement demand, which was declined. In December 2024, the Ninth Circuit dismissed the appeal for failure to file a brief. Plaintiff has not filed anything further. Therefore, almost 19 years after the event, the case appears to be over.

   

• Plaintiff's Contentions:

  That defendant San Diego Sheriff’s Deputy Kirk Terrell unreasonably used excessive physical force in arresting plaintiff. Among other things, she sought money damages from him and the County of San Diego pursuant to 42 U.S.C. section 1983 (the Civil Rights Act of 1871) and California Civil Code section 52.1 (the Bane Act).

• Defendant's Contentions:

  That defendant officer used reasonable force to subdue plaintiff, who was resisting arrest.