Dale Allen and Lori Sebransky Win New Trial in Court of Appeal

Dale Allen and Lori Sebransky appealed a jury verdict against a police officer, who was held liable for excessive force. The Court of Appeal determined the verdict was compromised, and ordered a new on trial on both liability and damages.

In June 2007, Tracy police officer T. Freitas and his partner went to plaintiff Steven Allgoewer’s house to investigate Allgoewer’s failure to relinquish custody of his daughter, in violation of a child custody order. During the ensuing investigation and arrest, Allgoewer became highly agitated, told the officers he was not going to calm down (in spite of their de-escalation efforts), made open-ended threats of violence against others, and disobeyed repeated orders to drop a hand rake, which the officers considered a weapon and a threat to their safety. When Allgoewer, still holding the rake, turned to move away from the officers toward his backyard, which he was expressly told not to do, Officer Freitas knew he must contain the situation; he made a split-second decision to use a leg sweep to disarm Allgoewer and take him into custody, as he was trained to do. Allgoewer hurt himself in the fall, and sued Freitas (and others) for excessive force.

The trial court ruled the arrest was lawful as a matter of law, and the excessive force claims went to trial in the San Joaquin Superior Court. The jury confirmed Allgoewer’s resistance and volatility through special interrogatories, but on a 9-3 decision found the force to be unreasonable, and judgment was entered in Allgoewer’s favor. The jury awarded Allgoewer his past medical bills (including surgical bills), but awarded no damages for pain and suffering, even though evidence of Allgoewer’s pain and suffering was uncontested. Officer Freitas appealed the judgment on various grounds. First, the jury was crippled by serious instructional error. They were not told the arrest was lawful, they were not told the standard by which they must judge the reasonableness of the force used (no hindsight), and they were not told all of the reasonableness factors they should consider. Second, the trial court erroneously refused Officer Freitas the qualified immunity a police officer ordinarily would enjoy. Third, the 9-3 verdict had all the ear markings of a compromise verdict.

The Third District Court of Appeal agreed the jury’s liability and damages findings strongly suggest the verdict was impermissively compromised, noting the evidence of liability was conflicting (and noting no other party was held liable), Officer Freitas was found liable only by a bare minimum of 9 jurors, and the damages were clearly inadequate based on the jury’s finding of liability. The Court remanded the case for a new trial on all issues.

For further information about this case please contact Dale Allen at dallen@aghwlaw.com or Lori Sebransky at lsebransky@aghwlaw.com, or by calling 415.697.2000.