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LaLonde was applied in Headwaters Forest Defense v. County of Humboldt (9th Cir. 2002) 276 F.3d 1125 (Headwaters). The plaintiffs were a group of environmental protesters who were repeatedly pepper sprayed by the police. The defendants obtained summary judgment on the ground of qualified immunity, but the Ninth Circuit reversed. Viewing the facts most favorably to the plaintiffs, they were sitting peacefully, were easily moved by the police, and did not threaten to harm the officers. After holding that the use of force under those circumstances violated the plaintiffs’ constitutional rights, the Headwaters court next concluded that the right was clearly established at the time of the protest because the plaintiffs had surrendered and were helpless. (Id. at p. 1130.)

This was so, the Headwaters court held, because even though no previous case had prohibited the precise force used against the protesters, LaLonde had made it clear that it was unnecessary to use pepper spray on protesters over whom the officers had control. (Headwaters, supra, 276 F.3d at p. 1130.)

The court in Orem v. Rephann (4th Cir. 2008) 523 F.3d 442, 448-449, used this rationale when holding that a police officer who tasered an uncooperative arrestee while she was restrained by hobbles and inside a police car violated a constitutional right that was clearly established as of 2005. So too did the courts in Michaels v. City of Vermillion (N.D.Ohio 2008) 539 F.Supp.2d 975, 990, and Batiste v. City of Beaumont (E.D.Tex. 2006) 426 F.Supp.2d 395, 402, where a mentally ill woman who had been arrested and taken to a hospital where she was repeatedly tasered by officers, produced evidence that she had been docile and compliant.

Several nonpublished district court decisions have reached the same conclusion. (Sleeman v. Oakland County (E.D.Mich. May 7, 2007, No. 06-10953) 2007 WL 1343403 [in 2005, the law clearly established that tasering someone who was not resisting and posed no threat, especially if handcuffed, violates the Fourth Amendment]; Richards v. Janis (E.D.Wash. Oct. 17, 2007, No. CV-06-3064-EFS) 2007 WL 3046252 [the law at the time of the conduct in 2005 clearly established that a taser must not be used against someone who is handcuffed and not resisting]; DeSalvo v. City of Collinsville, Ill. (S.D.Ill. Oct. 7, 2005, No. 04-CV-0718-MJR) 2005 WL 2487829 [a reasonable police officer would have known that it would be unlawful to taser a plaintiff who was not physically resisting or struggling in any way].)13

Finally, there is Drummond, supra, 343 F.3d 1052 which involves comparable physical force to what happened here – handcuffed suspect, on his stomach, officer applying pressure on suspect’s back. The plaintiff in that section 1983 action was the guardian of a mentally ill man who ended up in an irreversible coma from compression asphyxia when police officers who wanted to hold him for transport to a mental health facility knocked him to the ground and kneeled on his back and neck. The Ninth Circuit partially reversed a summary judgment for the defendants on the qualified immunity issue, holding that such force was excessive, and, because the man was compliant and had complained about his breathing, violated a clear constitutional right. (Id. at pp. 1061-1062.)

When the factual settings and principles of these decisions are tied together, they show that as of March 2007, Mendoza had a clearly established constitutional right to be free from being tasered, punched, and pinned so hard on his stomach that he asphyxiated from any point at which he was compliant and not resistant. As we have already observed, appellants have ignored all the evidence in the record that would support such a finding.

Even so, we must reconcile this evidence with the jury’s finding that Mendoza was 30 percent at fault. We begin with the evidence that Mendoza continued to disobey Macias’s repeated commands to sit down after Mendoza objected to having his blood drawn. Although Nurse Valenzuela testified that Mendoza was seated when he was first tasered, the jury might have disbelieved that evidence and found that Mendoza was offering resistance or posed some threat that justified Macias’s initial use of the taser.

However, the jury found that not only was Macias 70 percent at fault, it also found that he acted with malice, oppression or fraud to justify an award of punitive damages against him. Consistent with these findings is evidence concerning Macias’s conduct in continuing to taser and punch Mendoza after he fell to the floor. We begin with the 42-second videotape that appellants did not include in the appellate record, and did not discuss. According to Miranda, that video showed Macias hitting Mendoza while Deputy Velasquez restrained him. This must have occurred after the first tasering incident, but before the three other police officers arrived to restrain Mendoza. Because appellants have the burden of providing a record that affirmatively demonstrates error, but did not include the videotape in the appellate record, we presume that the videotape contained evidence showing the use of excessive force. (Ritschel v. City of Fountain Valley (2006) 137 Cal.App.4th 107, 122-123 [nonsuit for defendants in section 1983 excessive force case affirmed in part because plaintiff failed to include in the record videotape showing the blood draw during which the allegedly improper conduct occurred]; Crummer v. Zalk (1967) 248 Cal.App.2d 794, 796-797 [where record was inadequate to demonstrate error, court assumed there was evidence to support the trial court’s findings].)

Even without that presumption, the testimony of Madrigal and Miranda provides sufficient evidence that excessive force was used after Mendoza fell to the floor. According to their testimony, Mendoza was not struggling with Macias, swinging the chair to which he was handcuffed, or otherwise resisting. Instead, Macias continued his use of force even though, as Miranda said, Mendoza was completely subdued, crying out in pain, and moving only as an involuntary response to being repeatedly punched and tasered. Although the evidence is in conflict, the taser log shows that Macias used the weapon 14 times, in some instances for as long as 30 seconds. While restraint asphyxia was the direct cause of Mendoza’s death, respondents’ medical expert testified that the force applied right before then weakened Mendoza and made him more susceptible to the restraint force used later.

Appellants contend Macias cannot be liable for the restraint asphyxia itself because respondents’ medical expert testified, based on his review of the records, that Macias was restraining Mendoza’s left arm while the other officers were on top of Mendoza. However, there was eyewitness testimony from Miranda which supports a finding that Macias was on top of Mendoza’s back while Mendoza was pinned and handcuffed.

Miranda testified that Macias was on top of Mendoza’s right hip and was “over on top of his side” while he was alternately punching and tasering Mendoza. He later testified that when the three other West Covina police officers arrived to assist Macias, they got on top of Mendoza “next to the officer on top of him.” Under the substantial evidence standard of review, this testimony supports a finding that when Mendoza was moaning and barely moving, the three officers whom Macias called for backup joined Macias atop Mendoza. Alternatively, the jury could have found that even if Macias was only restraining Mendoza’s left arm, his conduct facilitated the asphyxiation caused by other officers on Mendoza’s back.

Similar to the decedent in Drummond, supra, 343 F.3d 1052, who complained about his breathing, Mendoza pleaded with the officers, “Stop. No more. That’s it.” According to respondents’ use of force expert, it was Macias’s job as the officer in charge to make sure that the other officers kept Mendoza’s airways open.

Taken as a whole, the combined effect of this evidence supports a finding that Macias punched and tasered a nonresisting and compliant man that he knew was emotionally troubled and physically ill, and continued to do so when Mendoza did no more than flinch from the pain and cry for help. It also shows that Macias was responsible for the restraint that caused Mendoza to asphyxiate both as an active participant who was atop Mendoza and because he did not fulfill his duty to ensure that Mendoza was able to breathe while he was being pinned and handcuffed. As our lengthy discussion above makes clear, such conduct violated a clearly established constitutional right.

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