Woman thrown to ground can’t sue deputy

A divided federal appeals court refused Friday to allow a Petaluma woman to sue for excessive force when a sheriff ’s deputy threw her to the ground and rubbed her face in the gravel after the teen and her mother allegedly interfered with the officer’s investigation of suspected domestic violence.

In a 21 ruling, the Ninth U.S. Circuit Court of Appeals in San Francisco said a Sonoma County jury’s conviction of Gabrielle Lemos on the misdemeanor charge meant that the deputy, Marcus Holton, had acted lawfully throughout their encounter and did not use excessive force.

Holton said he heard screams from a pickup truck parked in front of Lemos’ house one night in June 2015 and stopped to investigate. Her sister and her sister’s boyfriend, who were both in the truck, said there had been no violence and that the sister was just drunk and crying, but Holton decided to check further. When he moved to open the passenger door, Lemos, who was nearby, stepped in front of him and shouted that he wasn’t allowed to enter. He then pushed away Lemos, who was 18 at the time.

Her mother, Michelle Lemos, told her daughter to go back to the house. As she walked away, Holton called for her to come back, and when she did not respond, he grabbed her, threw her to the pavement, then pinned her down and handcuffed her.

Gabrielle Lemos, her face bloodied, was taken by ambulance to a hospital, and said she incurred thousands of dollars in medical costs and was unable to leave home for more than a month.

She and her mother were each convicted of a misdemeanor charge for resisting or interfering with an investigation and were sentenced in June 2016 to 30 days in jail and fines of $1,000 apiece. On Friday, the appeals court upheld a decision by U.S. District Judge Yvonne Gonzalez Rogers to dismiss Gabrielle Lemos’ suit for excessive force.

The court majority cited the Supreme Court’s 1994 ruling that barred someone convicted of a crime against a law enforcement officer from claiming that the officer used excessive force if that claim would contradict the guilty verdict after that verdict had become final.

In this case, “the jury verdict established Lemos resisted and the deputy’s conduct was lawful throughout the encounter,” said Ivan Lemelle, a federal judge from Louisiana temporarily assigned to the appeals court. Judge Sandra Ikuta joined his opinion.

In dissent, Judge Marsha Berzon said the jury was told it could convict Lemos if she interfered with Holton when he tried to open the truck door or speak with her sister, or if it found that she had pulled away when Holton moved to grab her. Only the latter reason would contradict her claim of excessive force, and jurors did not say what they agreed on, Berzon said.

The ruling means that “once a person resists law enforcement, she has invited the police to inflict any reaction or retribution they choose” as long as she is convicted of resisting or obstructing an officer, Berzon said. “It is likely to encourage the very sort of police overreaction to minor criminal behavior that has led to public outcry and calls for reform in recent years.”

Lemos’ lawyer, Izaak Schwaiger, said he will probably ask the full appeals court for a rehearing before a larger panel. He said Lemos has recovered from her injuries but still has “a few scars.”