Police Excessive Use of Force Lawsuits in California

Police Excessive Use of Force Lawsuits in California

Last week, the U.S. Ninth Circuit Court of Appeals ruled on an important issue involving police excessive use of force lawsuits.  The case is A.K.H. v. City of Tustin.

The issue in the case was whether the City of Tustin was immune from civil liability for the shooting death of Benny Herrera.

Mr. Herrera was shot and killed by Tustin Police Officer Villareal in 2011.  His family and children sued the City of Tustin, arguing that Officer Villareal used excessive force when he shot and killed Herrera while responding to a 911 call.

The 911 call was placed by Herrera’s girlfriend, who told dispatchers that Herrera had hit her and stolen her phone.  When dispatchers asked whether Herrera had a weapon, they were told he didn’t.

A Tustin Police Officer responded to where Herrera had been last seen walking on El Camino Real.  The officer stayed in his car and told Herrera to stop.  At this point, Herrera turned around and began walking backwards, away from the patrol car but facing the officer who had commanded him to stop.

Officer Villaral then arrived on the scene in another patrol car.  He observed Herrera holding his hand in his sweatshirt pocket.  From his patrol car, he shouted at Herrera to remove his hand from his pocket.  Less than one second after Herrera did so, Officer Villareal shot and killed him.

In determining whether the City of Tustin was immune from liability, the Court ruled that Herrera’s family must prove 1) Excessive force had been used; and 2) the force violated a clearly established right belonging to Mr. Herrera.

1. Excessive Force

The Fourth Amendment protects citizens from excessive use of force by law enforcement.  The officers’ actions in these cases must be “objectively reasonable” under a totality of the circumstances (Graham v. Connor, 490 U.S. 696 (1983)).

The Court here noted that the 911 call that had attracted Tustin police to Mr. Herrera had been a domestic dispute.  The dispute had ended before police got involved.  The Court noted that this was a very important factor, since police had begun their investigation after the domestic dispute had occurred.

Furthermore, the dispatcher was informed that Herrera did not have a weapon and was not known to carry weapons.  Officer Villareal admitted after the shooting that no weapons had been found.  The Court concluded that Officer Villareal escalated to deadly force very quickly, before Mr. Herrera could even comply with his commands.

2. Clearly Established Right

In evaluating the above-mentioned factors, the Court concluded that Officer Villareal did not have a valid reason to suspect that Herrera was armed or carrying a weapon.

Cases interpreting the Fourth Amendment have held that “a police officer may not seize an unarmed, non-dangerous suspect by shooting him dead” (Garner v. Tennessee, 475 U.S. 1 (1985)).


A.K.H. v. City of Tustin will serve as important precedent on cases analyzing the excessive use of police force and police immunity.

Each case is unique, and if you suspect you or someone you know was the victim of excessive use of force, contact an attorney immediately.

For questions about your case, the Rabbi Lawyer is ready to assist, 24/6.