By David M. Greenwald
Executive Editor
Los Angeles, CA – In a major victory for police accountability, the 9th Circuit Court of Appeals this week reversed and remanded a lower court’s decision which granted four LAPD officers qualified immunity in the 2020 death of Daniel Rivera.
Rivera, 37, died at the scene when several officers applied force upon finding him in a semiconscious position lying face down at the bottom of a wash.
In a July 17, 2023 decision, the Court wrote: “Viewing the evidence in the light most favorable to the non-moving party, id., a reasonable jury could conclude that Defendant officers used excessive force when they employed a Taser four times in rapid succession and when they applied extensive pressure to Decedent’s back by kneeling on him before, during, and after using the Taser.”
On June 7, 2023, Los Angeles Civil Rights attorney V. James DeSimone presented an argument before the 9th Circuit Court of Appeals.
DeSimone argued that the district court’s decision which allowed the LAPD officers qualified immunity should be overturned, because their behavior was a clear breach of established law, and in violation of the United States Constitution.
“Our ultimate goal remains unaltered: to hold to account those officers responsible for Daniel’s death,” said DeSimone, who represents Rivera’s family. “This decision allows us to progress towards that goal. We’re committed to pursuing justice not just for Daniel Rivera’s family but for every family who has experienced a similar tragedy. This is an affirmation that every life matters and every action has consequences.”
In a phone interview with the Vanguard, DeSimone said, “It was definitely refreshing to see the ninth circuit took a look at the facts of the law and just gave us such a solid opinion denying qualified immunity.”
DeSimone noted that granting qualified immunity “individuals such as the mother of Daniel Rivera, of her right, to have her constitutional rights vindicated for the deprivation of her relationship with her son.”
He said, “we have a fourth Amendment right to be free from excessive force, including deadly force. We have a seventh amendment right to a jury trial when our rights are violated and qualified immunity isn’t in the Constitution, and yet it’s been judicially constructed protection for police officers to not be held accountable for their actions, unless an appellate court had previously examined factual circumstances that were extremely similar to theirs.”
DeSimone noted this is yet another case where police officers – post-George Floyd put a mentally ill person in a prone position where he was ultimately unable to breathe and died as a result.
On August 14, 2020, LAPD officers responded to reports of Rivera acting disoriented and approaching people’s doors and windows. Upon their arrival, Rivera hopped a fence and rolled down a steep embankment, eventually landing in a muddy wash below. The officers found him lying prone and unresponsive, unarmed and posing no immediate threat. Rivera’s hands were in clear view and he had no weapons.
When officers reached Rivera, they abruptly applied body pressure with their knees on his back, and forcefully grabbed his arms to handcuff him, without giving any prior warning or opportunity for compliance. Despite Rivera’s attempt to comply by clasping his hands behind his head, one of the LAPD officers proceeded to Tase him repeatedly in the leg, delivering four rapid, successive shocks.
Following the handcuffing, the officers bound his legs with a hobble, then kept him in a prone position on the ground with their weight pressing against him, disregarding the known risk of positional asphyxiation. Rivera was in this position for nearly three minutes before going into cardiac arrest. He died at the scene within minutes of the LAPD’s arrival.
DeSimone argued that none of the officers at the scene adhered to LAPD’s policy which mandates specific measures to prevent positional asphyxiation.
The Board of Police Commissioners found that Rivera did not pose a threat to the 10 officers on the scene, further finding the officers acted out of policy.
“Decedent did not act aggressively or violently toward any of the officers when the hobble was applied,” the Court wrote. “Nonetheless, two Defendant officers pushed down on Decedent’s back again, and they continued to press down on his back even though he was convulsing and screaming. One Defendant officer told Decedent to ‘calm down. You got me all muddy and shit.’ Yet another Defendant officer pressed his knee onto Decedent’s torso. Decedent died on the scene from “restraint asphyxiation and the force of the taser.”
“This was after George Floyd died,” DeSimone told the Vanguard. “This was in November of 2020. And these officers exhibited an absolute violation of, um, what they should do to preserve life even after they handcuffed and hobbled Daniel Rivera, they placed him on his belly and put body weight on him face down when he was clearly in medical distress. And that led to his death.”
