Bemis v. Edwards

45 F.3d 1369 (9th Cir. 1995)

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Nature of the Case

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Facts

P and Kates argued with each other as they drove home from a tavern. At a park near his home D pulled a shotgun on Kates, which Kates promptly seized and broke against a tree. P then ran to his own house nearby and, upon discovering that he had forgotten his keys, broke in. As P emerged from his house with another gun, a resident of the house across the street, Gary Estep, called 911 to report what he believed to be a burglary by armed intruders. Ds arrived and apprehended P and Kates. P brought a civil rights action against Ds for use of excessive force. Ds claimed that any force used was reasonable and necessary because they had believed P to be an armed burglar, he had pointed his rifle at them, he had refused initially to drop the gun, and he had resisted arrest. P claimed that he dropped the rifle when ordered to do so and verbally surrendered without resistance, yet the police beat him severely. P's' wife and stepdaughter, who were inside the house, testified that he had declared to the police that he was not resisting. All three, along with Kates, testified that P suffered a broken jaw and other injuries. Kates testified that the police beat him as well and that he called 911 to request assistance following his beating. In an evidentiary hearing, the judge had considered the admission of a 911 tape from the night in question. In one part of the tape, the 911 operator stated to Estep, 'apparently, he must have thrown the shotgun down.' Shortly thereafter, Estep reported, 'Now there's a cop beating the shit out of the guy now,' and then: 'There's five units - I got a scanner here in my house, so - but it's kind of getting ridiculous guys. I mean, the cop's beating the shit out of the guy right now. The guy's got a gun, though. I guess it's legal.' In another portion of the tape, Kates called 911 and reported that he had been beaten by four police officers, complained that his 'ribs are busted,' and requested an ambulance. Subsequently, a police officer instructed the 911 dispatcher to ignore Kates's request. The judge held that there was a lack of foundation because the tape indicates that Estep was not actually observing the events he described during the 911 call, but was merely reporting what others in the house were seeing and describing to him at the time. The court excluded Kates' statement as irrelevant to P's beating or to his claim that the city had a policy of using excessive force. The case was dismissed, and P appealed.