By Thaddeus Miller
The Fresno Bee
FRESNO, Calif. — An appellate court sided with Fresno-area first responders involved in a 2017 incident in which officers, deputies and paramedics sat on a restrained man, killing him by asphyxiation.
The U.S. Court of Appeals for the Ninth Circuit cited qualified immunity in its findings in favor of first responders though Judge Danielle J. Forrest wrote in her opinion a reasonable jury could have found officers violated Joseph Perez’s Fourth and Fourteenth Amendment rights.
Perez stopped moving in less than a minute after an officer sat on him and the Fresno County Coroner’s Office ruled he died by homicide by asphyxiation. The coroner noted a high amount of methamphetamine in his system.
Perez could be heard in a police video saying he can’t breathe before an officer sat on him.
Fresno City Attorney Andrew Janz said the Fresno Police Department’s response was within the law and officer training.
“Had they not acted and instead stood by ignoring the instructions of emergency personnel, we would likely be seeing greater outcry and scrutiny from all parties involved,” he said. “Although any loss of life is heartbreaking and frustrating, we are appreciative of the Ninth Circuit’s finding that officers acted reasonably under these circumstances.”
Perez was face down on the ground on May 10, 2017, when Fresno police and area paramedics placed a backboard on him before at least one officer and others sat on it. A paramedic instructed officers to use the board so that Perez could be transported during a mental health crisis, the court noted.
Treating patients in-custody:
Perez was unarmed when police happened upon him acting erratically near Palm and Dakota Avenues, according to police.
The Fresno County Sheriff’s Office said in a statement it was pleased with the court ruling, according to spokesperson Tony Botti.
“Our office is committed to extensive training for its deputies to assure encounters with all individuals are conducted in a manner that ensures the safety of the public and our deputies,” the statement said.
The court’s ruling argued the presence of a paramedic was unusual, making for an unprecedented situation.
“At the time of Perez’s death, the law did not clearly establish, nor was it otherwise obvious, that the officers’ actions, directed by medical personnel, would violate Perez’s constitutional rights,” the judge wrote in the opinion.
One of the judges on the panel of three, Judge Sidney R. Thomas, wrote a dissenting argument from his colleagues, noting some of the questions in the case would best be decided by a jury. He wrote the officers acted improperly.
“Extensive federal case law, departmental guidance, and common sense gave officers fair warning that applying continuous force to the back of a prone person who claims he cannot breathe is constitutionally excessive,” he wrote.
The Perez family, after filing the lawsuit in 2018, said through their attorney they would petition the court for an “en banc” hearing, which would require the permission of the same appellate court but, if granted, would leave the case to be reviewed by a panel of 11 judges.
The case boiled down to qualified immunity, according to Perez family attorney Neil Gehlawat, a Los Angeles-based attorney.
Qualified immunity is when government officials — often police officers — are protected from liability for civil damages if their conduct does not violate clearly established statutory or constitutional rights. It has become more of a sticking point in recent years as communities call for officers to face more accountability.
“We’re obviously disappointed in this ruling. I think it says a lot about qualified immunity,” Gehlawat said. “It’s a get-out-of-jail-free card for officers, deputies and, in this case, paramedics.”
The majority opinion notes that Fresno police officers and Fresno County deputies are trained to not leave a person being arrested on their stomach once handcuffs are applied, but said law enforcement officers are typically taught to defer to emergency responders when dealing with a medical incident.
Gehlawat said officers deferring to a paramedic should not be an excuse for what happened. He also noted the Fresno County coroner ruled Perez’s death a homicide by asphyxiation caused by the first responders, which was captured on video.
“When Fresno County’s own coroner is calling it a homicide, that should say enough about how egregious this was,” he said. “He says, ‘I cannot breathe,’ before the officer sits on the board, and you essentially watch Joseph die.”
The Perez family and their attorneys argued the city and county failed to train responders of the danger of potentially suffocating a person while being restrained.
Two Fresno officers testified they were not trained on restraint asphyxia, but the opinion said the Perez family attorneys did not prove the city or county showed “deliberate indifference” to a lack of training.
Gehlawat said the Perez family was heartbroken by the decision, adding they had a hard time understanding the court’s findings. The family believed the officers should face criminal charges, he said.
“It’s just hard for them to digest that there’s been no accountability,” he said. “Any average person who sees that (video) can’t come to (the court’s) decision. It just defies common sense.”
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