Tasering of Leash-Law Violator Will Go to TrialBy ELIZABETH WARMERDAM
Courthouse News Service
Nov. 18, 2013
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SAN FRANCISCO (CN) - A case where a man walking his dog without a leash was detained for eight hours and Tasered is not a lock at summary judgment, a federal judge ruled.
Gary Hesterberg claims that the incident occurred while he was running the trails in Rancho Corral de Tierra in San Mateo County with his leashed beagle and an unleashed rat terrier. The land had recently been transferred to the Golden Gate National Recreation Area, which is managed by the National Park Service (NPS).
That month, January 2012, the NPS had changed its leash rule to no longer allow dogs to be walked off-leash in Rancho Coral de Tierra. Hesterberg said the rule change was not well publicized and no signs were posted to inform park users of the change.
Hesterberg allegedly put his terrier on a leash when he saw NPS ranger Sarah Cavallaro approaching. He said Cavallaro did not identify herself, but issued a verbal warning to Hesterberg for having had his dog off-leash.
Hesterberg then attempted to leave, but Cavallaro told him he was not free to go, according to the complaint. When Hesterberg attempted to leave again, Cavallaro allegedly grabbed his arm.
As Hesterberg continued to protest, Cavallaro pulled out her Taser, according to the complaint. Hesterberg allegedly warned the ranger that he had a heart condition and that she was illegally detaining him. As the 50-year-old turned around to walk away, Cavallaro fired the Taser at him, causing him to fall to the ground, according to his complaint.
San Mateo County Sheriff's deputies then arrived on the scene and cuffed Hesterberg. He was taken to jail, where he remained until 12:30 a.m., some eight hours after the initial confrontation. No charges were pursued against him, according to his complaint.
U.S. Magistrate Judge Jacqueline Scott Corley refused Wednesday to grant Hesterberg summary judgment on his claims for battery and false imprisonment or arrest.
Cavallaro had probable cause to initially stop Hesterberg for having his dog off leash, and the parties do not dispute that Cavallaro ordered Hesterberg not to leave after the initial warning, according to the ruling.
The ranger testified that she continued to detain Hesterberg so that she could input his information in a local database on leash-law contacts. That way, officers will be aware of prior oral warnings given out to leash-law violators.
"Since a reasonable trier of fact could find that the 'mission' of Cavallaro's stop was not complete until Hesterberg's identity was verified with dispatch, Hesterberg has not established that Cavallaro's continued detention of him pending verification of his identity violated the Fourth Amendment," Corley wrote.
Additionally, the 9th Circuit held that an officer who detains a pedestrian for a minor infraction is allowed to continue to detain the pedestrian long enough to obtain "satisfactory identification," the court found. Because Hesterberg did not have any identification on him at the time of the incident, it cannot be said that Cavallaro had no right to verify the information with dispatch.
Because Hesterberg failed to show without a doubt that he was unlawfully detained, he cannot show without a doubt that his custodial arrest was also unlawful.
Additionally, Hesterberg's argument that he did not know Cavallaro was a law-enforcement officer is questionable, as Cavallaro was in her full Park Ranger uniform, complete with a "patch badge" and utility belt.
In denying Hesterberg summary judgment on the battery claim, Corley noted that the 9th Circuit "cautioned that summary judgment in excessive force cases 'should be granted sparingly.'"
Although Cavallaro may have had reasonable suspicion that Hesterberg was lying to her about his name before she fired her Taser, this suspected lie was not a serious crime. Additionally, the fact that he pulled his arm away from Cavallaro when she grabbed him does not constitute a violent act.
Evidence supports the finding that Hesterberg resisted arrest, however, as he attempted to flee three times and refused to turn around and put his hands behind his back so that Cavallaro could handcuff him, according to the ruling. Cavallaro warned Hesterberg that if he attempted to flee again, she would fire her Taser.
"It is undisputed that Cavallaro kept the Taser aimed at Hesterberg the entire time she had it out," Corley wrote. "That Hesterberg though it wise to call her bluff does not overcome the facts that support an inference that an adequate warning was issued."
Whether Cavallaro had feasible alternatives to capturing Hesterberg and preventing him from fleeing is unclear.
Corley found that the court "cannot conclude as a matter of law - as opposed to making findings of facts - that Hesterberg's interest in being free from an intermediate level of force outweighed the government's interest in arresting a warned, fleeing, nonviolent, nonserious misdemeanant, who posed no threat to an officer or the public."