723 F.3d 1104 (9th Cir. 2013), 12-55347, Krechman v. County of Riverside

Docket Nº:12-55347.
Citation:723 F.3d 1104
Opinion Judge:GOULD, Circuit Judge:
Party Name:Carole KRECHMAN, Individually, and as the Personal Representative of Robert Albert Appel, deceased, Plaintiff-Appellant, v. COUNTY OF RIVERSIDE, a Municipality; Robert Garcia, Deputy, ID# 4504; Martin Alfaro, Deputy, ID# 3485; Sean Dusek, Deputy, ID# 3495; Edward Chacon, Deputy, ID# 4505, Defendants-Appellees.
Attorney:Dale K. Galipo (argued) and Thomas C. Seabaugh, Law Offices of Dale K. Galipo, Woodland Hills, CA, for Plaintiff-Appellant. Bruce E. Disenhouse (argued), Kinkle, Rodiger and Spriggs, Riverside, CA, for Defendants-Appellees.
Judge Panel:Before: RONALD M. GOULD, N. RANDY SMITH, and JACQUELINE H. NGUYEN, Circuit Judges. N.R. SMITH, Circuit Judge, concurring:
Case Date:July 25, 2013
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit
 
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723 F.3d 1104 (9th Cir. 2013)

Carole KRECHMAN, Individually, and as the Personal Representative of Robert Albert Appel, deceased, Plaintiff-Appellant,

v.

COUNTY OF RIVERSIDE, a Municipality; Robert Garcia, Deputy, ID# 4504; Martin Alfaro, Deputy, ID# 3485; Sean Dusek, Deputy, ID# 3495; Edward Chacon, Deputy, ID# 4505, Defendants-Appellees.

No. 12-55347.

United States Court of Appeals, Ninth Circuit.

July 25, 2013

Argued and Submitted June 6, 2013.

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[Copyrighted Material Omitted]

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Dale K. Galipo (argued) and Thomas C. Seabaugh, Law Offices of Dale K. Galipo, Woodland Hills, CA, for Plaintiff-Appellant.

Bruce E. Disenhouse (argued), Kinkle, Rodiger and Spriggs, Riverside, CA, for Defendants-Appellees.

Appeal from the United States District Court for the Central District of California, Otis D. Wright II, District Judge, Presiding. D.C. No. 2:10-cv-08705-ODW-DTB.

Before: RONALD M. GOULD, N. RANDY SMITH, and JACQUELINE H. NGUYEN, Circuit Judges.

OPINION

GOULD, Circuit Judge:

Carole Krechman, individually and as the personal representative of her son, Robert Albert Appel, brought a 42 U.S.C. § 1983 action for damages resulting from her son's death. Krechman contends that

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police officers (" Defendants" ) used excessive force, resulting in Appel's death, when they responded to a 911 hang-up call and found Appel sitting unarmed in his driveway and tried to take custody of him. After a jury trial, the district court granted judgment as a matter of law to Defendants under Federal Rule of Civil Procedure 50(a). Krechman appeals, requesting reversal of that decision and a new trial, preferably before a different judge. In the alternative, she asserts (1) that the district court made erroneous trial rulings that cumulatively prejudiced her substantial rights and led to the entry of judgment as a matter of law against her and (2) that the district court violated her due-process rights by engaging in conduct that amounted to an unconstitutional appearance of bias. We have jurisdiction under 28 U.S.C. § 1291, and we reverse.

I

Just before 10:00 p.m. on a spring night, dispatchers received a 911 " hang up" call. The call was traced to a home in a Palm Desert gated community, and the dispatcher assigned Robert Garcia, an on-duty police officer, to inspect the location. When Garcia arrived at the front gate, a security guard told him that the home of interest was occupied by an attorney named Robert Appel and that just a few days prior, Appel was pepper sprayed by the police. Garcia entered the neighborhood and parked his patrol car down the street from the home. Stepping out of the car, Garcia heard yelling. He called for backup. Approaching the house, he noticed a man sitting in the driveway wearing nothing but sweat pants. The man stood up when he saw Garcia, ran at him, and eventually sat back down. Visually scanning the man's waistband for bulges that might be weapons, Garcia saw nothing of danger. The man screamed, " Why did you do this to me, Tina?" and other strange phrases, and then ran to hide behind a two-foot bush in the yard.

Garcia believed that the man was delusional and in need of a temporary hold for people with potential mental illness. So Garcia approached, readying his pepper spray. Using the name " Robert," Garcia coaxed the man out from behind the bush and got him to sit down " Indian style" on the street facing the house.

Garcia then told Appel that he was not being arrested but that he was being detained so that the police could figure out what was going on. About this time, Officer Chacon arrived. Garcia then asked Appel to put his hands behind his back for handcuffing, and Appel replied " okay, okay, okay." Appel then let Garcia handcuff his left hand without incident.

But, as Appel was moving his right hand behind his back, something changed. Suddenly Appel's melancholy turned to anger, and Appel began to resist the officers' attempts to handcuff his right arm. He shouted, " no, no, no, not again, not again, no, no" and thrashed about.

Garcia then sprawled his body over Appel's upper body while Chacon grabbed Appel's legs. The two pulled Appel onto his left side and Garcia tried to perform a carotid restraint to render Appel unconscious. But Appel tried to bite Garcia's arm, so Garcia struck Appel's face three times with " hammer strikes." Appel was screaming and yelling throughout.

During this tussle, Garcia had radioed that things had become " physical," and Officers Dusek and Alfaro, who were already on their way, arrived at the scene. Alfaro shouted at Garcia to " get the fuck out of the way." Then Alfaro and Dusek each grabbed one of Appel's arms and pulled him to the chest-down position. Garcia was now holding Appel's head, and Chacon was positioned on Appel's legs.

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Alfaro and Dusek both used techniques intended to cause pain and immobilize Appel. During this time Alfaro's knee was on Appel's back exerting an estimated 105 pounds of pressure, and Dusek applied his " right knee to [Appel's] right tricep" and then to the " back of [Appel's] right shoulder in the area of the shoulder blade." This prevented Appel from lifting his upper body up, allowing the officers to cuff Appel's right arm. Appel continued to scream and " violently jerk[ed] his head and shoulders upwards."

The officers' accounts of what happened next are not entirely consistent. But the testimony in substance confirmed this: Even after handcuffing was complete, Appel was " pumping his fists while they were handcuffed behind his back" and his " muscles were rigid, meaning he was flexing his arm muscles, and he was repeatedly kicking his— his feet and toes on the asphalt." Alfaro kept his knee on Appel's upper back " when he was moving and attempting to get up." Chacon placed a knee on Appel's left lower back to keep Appel down. And Dusek also had his knee on Appel's shoulder blade.

When Appel stopped moving, Alfaro assumed he was " playing possum" so Alfaro remained on Appel's back for a bit.1 Then some of the officers grew concerned; Chacon tried to check Appel's pulse, but was told by Alfaro to get away from Appel's face. The officers turned Appel face-up and noticed that his eyes and mouth were open. They then moved Appel " up alongside of the curb on the street" and started to monitor his vital signs. The officers testified that Appel was breathing at this time, but Appel was unresponsive. After Appel " arched his back considerably and looked uncomfortable," the officers laid him on his back in the grass on an elevated yard. At 10:43 p.m., the officers called the paramedics. While waiting for them, the officers checked Appel's pulse, but CPR was not performed and the handcuffs were not removed. Sadly, Appel did not have a pulse and was not breathing when the paramedics arrived at 10:51 p.m. Appel was rushed to the hospital, where he was eventually pronounced dead.

In November 2010, Appel's mother and stepfather filed this action in the district court, seeking compensatory and punitive damages under 42 U.S.C. § 1983 to redress various constitutional violations, including violations of Appel's Fourth and Fourteenth Amendment rights. They also brought state-law claims, including negligence. The district court held a six-day jury trial. All four of the involved officers testified. So did a responding paramedic, the coroner, an expert witness on police practices, several expert physicians, and Carole Krechman.2

At trial, Defendants presented a theory that Appel died suddenly of natural causes, specifically kidney failure that caused cardiac arrhythmia, unrelated to the altercation with the police. An emergency physician named Dr. Gary Vilke testified in support of this theory. He said that Appel's

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blood-chemistry panel at the emergency room showed a potassium level of more than 10 where the " normal range is between 3.5 7 and 5 or 5.1," and he noted that potassium levels higher than 6 can start to cause electrical activity changes and stress the heart. Dr. Vilke further said that Appel had elevated creatinine and magnesium levels, " which means his kidneys weren't working."

Krechman, on the other hand, contended that Appel's death was caused by excessive force. The coroner, Dr. Mark Scott McCormick, who examined Appel's body testified that he found no evidence of drugs or alcohol in Appel's system; that there were several blunt-impact injuries on Appel's torso, head, arms, and legs; that there was evidence of bleeding in an internal muscle of Appel's ear; and that Appel's heart was enlarged, which put him at a higher risk for cardiac arrhythmia. He also testified that he believed that " [t]he confrontation itself [was] a stressor that contributed to the arrhythmia" that caused Appel's death so he classified the death as a homicide.

Another expert for Krechman, Dr. Ronald O'Halloran, testified that there are two ways the encounter with police could have led to Appel's death: First, depending on what the jury believed the facts to be, the officers' actions could have caused " restraint asphyxia, compressing the chest for too long with too much weight." Second, the altercation could have caused an " adrenaline increase causing a cardiac arrhythmia from the stress of the exertion and the fear and pain associated with the restraint process." He described restraint asphyxia more specifically as occurring when " a person is in a prone position and doesn't have the use of their arms or legs to remove weight from their back, [and] weight on the back can compress the chest enough that they can't breathe adequately to maintain blood oxygen saturation" or can't get enough blood pumped through the heart.

After the close of Krechman's case-in-chief, Defendants moved for judgment as a matter of law. The district court held a hearing on the motion after the close of evidence but deferred decision on the motion...

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