From [HERE] The Ninth Circuit indicated Wednesday that though it may grant qualified immunity to four white San Diego Border Patrol agents who Tasered and "accidentally" killed a Latino motorist when his car caught fire, it could hold the federal government accountable for his death.
Two of the three judges on the panel asked whether tort claims against the United States brought by the parents of Alex Martin, the 24-year-old man who was killed, would remain intact if qualified immunity were granted to the agents.
“It appears to me that there is at least a triable question of fact as to whether the amount of force used was excessive,” Ninth Circuit Judge Susan Graber said. “If qualified immunity is nonetheless available because of a lack of clearly established law, what survives of the tort claims? Would that leave the assault and battery claim in place?”
The family’s attorney Gene Iredale said Martin had been driving for 22 hours on his way back from Texas when he got lost in Pine Valley, California, in March 2012. Border Patrol agents tried to pull him over for driving the wrong way on Interstate 8. However, the pursuing agents were all in plain clothes and unmarked cars, so Martin did not stop. For about three minutes, Martin led the agents on a high-speed pursuit that ended when he drove over spike strips that deflated his tires.
Martin, who had pulled over on the side of the road, had no way of knowing the men approaching him were law enforcement, Iredale claims.
“These agents approached in unmarked cars, in plain clothes and never identified themselves by the display of badges or even the simple statement ‘Border Patrol,’” the attorney said.
Martin’s family claims the agents pointed guns at him and failed to identify themselves as officers.
Martin, believing they were thieves, sped away, eventually blasting through the Highway 80 Border Patrol checkpoint, where he swerved off the road to evade spike strips another agent had placed on the road to stop him, and drove off a second time.
When the agents finally forced him to stop, the cops claimed Martin reached for something near the center console of his car. Believing Martin was reaching for a weapon, one of the agents broke a window and Tasered him. No gun was found.
The Taser touched off gasoline that had spilled from a canister inside the car and the car exploded, burning Martin to death.
In the video, a plainclothes agent is seen using a flashlight to break the passenger side window. He then raises up his Taser and shoots inside. Immediately, an explosion rocks the car, throwing the agent against the hillside behind him.
Martin burned to death. The video shows that instead of trying to save him, all of the agents pulled their vehicles away from the scene.
“All three of those cars had large fire extinguishers in them and standard equipment,” Iredale said. “Not one of these agents ever even tried to spray any of the fire extinguisher solution on that car.” [MORE]
Martin’s parents said their son was so badly burned his skin was charred black and the underlying tissue and bone exposed.
The Martins sued in June 2013, alleging excessive force, assault and battery, wrongful death and Bivens civil rights claims against the agents, and negligence, wrongful death, assault and battery and excessive force against the United States under the Federal Tort Claims Act.
U.S. District Judge Larry Burns in Los Angeles granted the Border Patrol agents qualified immunity from the Bivens claims, finding that using a Taser under the volatile circumstances surrounding Martin’s chase did not violate his constitutional rights.
Burns also granted the United States summary judgment on the federal tort claims, including on the family’s claim that the agents’ use of unmarked vehicles and one agent’s failure to identify himself as an officer caused Martin to mistake the agents for thugs and to flee.
On Wednesday, Ninth Circuit Judge Jay Bybee asked Eugene Iredale, an attorney for the Martins, whether their federal tort claims would survive if the Border Patrol agents were granted qualified immunity.
Iredale said they would, noting that the way the agents initially approached Martin — one of them parked behind him in an unmarked car with its headlights off, leading Martin to fear that he was being stalked — and their failure to identify themselves was negligent and caused his death.
“A reasonable person would not approach in the night and say, ‘Get out of the car,’ with a gun, and not identify themselves,” Iredale said, adding that the panel should judge the agents’ negligence against a reasonable person’s standard of care.
According to the family’s brief to the Ninth Circuit, “[Agents] Fishman, Salcedo and Galioto conducted a traffic stop in violation of Border Patrol rules, screaming at Alex Martin to
‘Get out of the fucking car.’”
Prompted by Graber and Bybee to answer the same question, Department of Justice attorney Daniel Butcher said the negligence claim would survive and the assault and battery claim likely would, too, assuming that qualified immunity were granted and that Martin’s constitutional rights had been violated due to excessive use of force.
“I suspect they would survive in that situation, when there is an excessive use of force that is unjustified and non-privileged,” Butcher said. Later, he clarified that the second stop was constitutional because at that point “the agents had ample reasonable suspicion to believe that criminal activity was afoot.”
The court spent the remainder of the hearing questioning Iredale about Martin’s actions at the Border Patrol checkpoint.
Even if Martin had mistaken the Border Patrol agents chasing him for thieves, he should have realized they were officers once he reached the checkpoint, Judges Bybee and Morgan Christen said.
“You can’t ignore — and we don’t forget that these are very tragic circumstances, counsel —but there’s this Border Patrol station and he did drive right through it, so after that point is it your position that Mr. Martin was confused about who was chasing him?” Christen asked.
Iredale said the court should consider the entire incident, not just what happened when Martin reached the station. The agents had precipitated it and “created a fatal ambiguity” when they didn’t identify themselves during the first stop, he said.
“A reasonable person in the light of day with no fear would clearly have perceived that,” Iredale said. “A young man in these circumstances in the dead of night, having been threatened by people that he did not know, that could’ve been thugs, pointing guns for no reason, may or may not have perceived that through his panic.”
He added: “It’s fair for them to say, ‘Yeah, but he went right past the Border Patrol stop, and that shows he knew at that point they were police, not thugs.’ But I have the right then to say, ‘Look at the very beginning. They’re in plain clothes, these people do not look like Border Patrol agents, they did not display their badges.’”
Butcher countered that “any failure to display badges before that time didn’t lead to anything that happened after that.”
In their brief to the Ninth Circuit, the Martins say the agents tried to cover up the fact that they hadn’t identified themselves or called for a marked unit by saying, untruthfully, that they thought they saw Martin reach for a weapon during the first stop.
Martin was unarmed, and this was confirmed at the hearing.
“In this regard, the real reason why summary judgment should absolutely be precluded is because the agents lied,” Iredale said. “Their conduct shows consciousness of guilt.”
The Martins asked the Ninth Circuit to remand the case for trial.
Iredale is with Iredale & Yoo in San Diego. Butcher is an assistant U.S. attorney, also in San Diego.