Ninth Circuit Reversed Grant Of Summary Judgment In Excessive Force Action Involving The Death Of An Attorney.

In response to a hang-up 911 call, police arrived at a home to find a delusional man, an attorney, sitting in the driveway.  It took four officers to handcuff him. Even after being handcuffed, the man pumped his fists and kicked his feet and toes onto the asphalt. An officer kept his knee on the man’s upper back, and at some point, the man stopped moving and officers became concerned. He was dead when paramedics arrived. The man’s parents filed an action for excessive force, and their expert testified about a phenomenon called restraint asphyxia. At the close of plaintiff’s evidence, the defendant sought summary judgment as a matter of law. The trial court deferred a decision and submitted the case to the jury, which hung. At that point, the court granted summary judgment. Concluding the trial judge made impermissible credibility callings in granting summary judgment, the Ninth Circuit reversed. At the same time, the reviewing court declined to order reassignment to a different judge, as requested by the decedent’s parents. Carole Krechman as the personal representative of Robert Albert Appel, deceased v. County of Riverside  (Ninth Cir.; July 25, 2013) (Case No. 12-55347).