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Ninth Circuit Denies Immunity to Police Officers, Jailers for Prisoner’s Death

by Matt Clarke

On December 30, 2016, the Ninth Circuit Court of Appeals upheld the denial of qualified immunity to two Phoenix police officers and two Maricopa County jail guards in a civil rights case alleging they beat a prisoner to death.

When mentally ill U.S. Army veteran Ernest “Marty” Atencio, 44, was booked into the Maricopa County jail a few days before Christmas in 2011, he was behaving strangely – talking in a “word salad” to an empty peanut butter container as if it were a person. Jail medical personnel recognized that he was “in crisis” but did nothing to help him. Jailers taunted him, laughing at his inability to follow orders; they convinced him to make funny faces at the camera so they could win the Sheriff’s Office’s online “Mug Shot of the Week” contest.

Things turned ugly when the guards asked him to take off his shoes so they could be scanned. He took one off but asked Phoenix police officer Patrick Hanlon to remove the other. That’s when jailers piled onto him, beating and kicking him before they took him to a safe cell. Afterwards they allegedly laughed, joked and celebrated the beating.

As previously reported in PLN, Atencio was found “unresponsive” in the safe cell 15 minutes later. He was taken to a hospital and put on life support, but there was no brain activity and he later died. [See: PLN, Aug. 2013, p.54].

Aided by Phoenix attorney Michael Manning, Atencio’s family filed a federal civil rights suit for excessive use of force and denial of substantive due process against then-Maricopa County Sheriff Joe Arpaio, jail staff, the City of Phoenix and several police officers. The defendants filed motions for summary judgment based on qualified immunity, which were denied by the district court.

On appeal, the Ninth Circuit held that video evidence from the jail – which went viral when it was released in 2011 – indicated a jury could find that several of the defendants had used excessive force. Those defendants included Phoenix police officer Nicholas French, who used what appeared to be a dangerous carotid artery choke hold on Atencio after he had already been subdued by a “dog pile” of other officers; jail Sgt. Jason Weiers, who was seen shocking Atencio three times with a Taser; and jailer Anthony Hatton, who struck Atencio with a closed fist and delivered a knee strike to his upper body or head after he was being held prone on the ground. The appellate court ruled they were not entitled to summary judgment on the excessive use of force claim.

Officer Hanlon had initiated the assault on Atencio by applying a wrist hold that allowed the other officers to attack him. Therefore, under the integral participation doctrine, he was not entitled to qualified immunity.

“When you lose qualified immunity as an officer,” said Manning, “you lose it because there are clearly defined standards that you are violating [with] the excessive force you are using on an arrestee or detainee.”

However, the Ninth Circuit found the district court had erred in denying qualified immunity to Sgt. Anthony Scheffner, who was present when Hatton delivered the knee strike. There was no evidence that Scheffner directed or otherwise knew that the single knee strike would occur, and he had no realistic chance of stopping it.

Hanlon should have been granted qualified immunity on the claim for denial of substantive due process for loss of familial association because he did not engage in official conduct that “shocked the conscious” when he used a wrist lock on Atencio. He could not have reasonably foreseen that the wrist lock would lead to Atencio’s beating death.

Therefore, the Court of Appeals reversed the denial of summary judgment as to Scheffner on the excessive use of force claim and as to Hanlon on the denial of substantive due process claim. The judgment was affirmed in all other respects, and the case remains pending on remand – where the district court judge, Paul G. Rosenblatt, recused himself on November 13, 2017. See: Atencio v. Arpaio, 674 Fed.Appx. 623 (9th Cir. 2016), cert. denied. 

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Related legal case

Atencio v. Arpaio