'Excessive force' civil lawsuit stayed until further notice - The Gilroy Dispatch: Crime Fire Courts

'Excessive force' civil lawsuit stayed until further notice

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Posted: Thursday, November 7, 2013 8:53 am

Nelson Garcia, the Gilroy man police say is a former “known Norteno gang member” who was found guilty by a jury of resisting or delaying a peace officer in October, said Wednesday he plans on appealing his criminal conviction for the charge.

Following his arrest on July 26, 2012 at approximately 6:30 a.m., Garcia is seeking millions of dollars in damages in a civil lawsuit for what he alleges was excessive force and a violation of civil rights by GPD Cpl. Eustaquio “Paco” Rodriguez after a K9 bit him three times in his right leg. The civil case has been stayed indefinitely by U.S. District Court Judge Edward Davila as of Sept. 13 until all criminal proceedings - including any appeals - have been resolved.

Rodriguez, a K9 handler and 11-year veteran with the department, along with the City of Gilroy, the GPD and Chief Denise Turner, are named in a lawsuit filed by Garcia who claims he was illegally stopped by Rodriguez; rammed with a police car; maimed by Rodriguez' K9 dog without provocation; and arrested without a formal charge or a reading of his Miranda rights, according to the complaint.

“[Rodriguez] was wrong for what he did to me,” Garcia said Wednesday in a phone interview. “He had his gun on me and I had my hands on the car when he told me to get on the ground. When I pushed off his car to get on the floor, the dog comes around and bites me. He should have called the dog off since I'd already surrendered.”

Following the incident, Garcia was admitted as a trauma patient and brought to the San Jose Regional Medical Center for evaluation, according to his release forms. He had a large gash wound “down to the bone” just beneath the knee of his right leg and two smaller bite wounds in his calf, the forms read. Garcia spent 17 days in the hospital following the encounter and suffered permanent nerve damage, Berki said in the original complaint filed against the City.

But because of a guilty verdict in the criminal case against Garcia for resisting a peace officer, it may have a direct impact on the civil rights lawsuit, “due to the fact [Garcia] is claiming unlawful arrest and excessive force,” reads a stipulation and proposed order staying civil action signed by both Garcia's attorney, San Jose-based Ronald Berki and a Walnut Creek-based law firm hired by the City. “Some of [Garcia's] claims in this civil rights case may be limited and/or barred should [Garcia] suffer a conviction.”

Rodriguez said in the City's formal response to the original complaint he spotted Garcia and recognized him “as a person who was wanted on an outstanding arrest warrant.”

From his experience as a gang and narcotics investigator with the Anti-Crime Team, Rodriguez said Garcia had a history of prior violent resistance towards the police, was involved with drugs and was a known Norteno gang member.

“I've never been no gang member or anything like that,” Garcia rebutted. “I've never had no weapons charge and I've never had no gang charges.”

Before a K9 is deployed, according to the GPD's K9 policy manual, if there is no reasonable belief that an individual has committed or threatened to commit a serious offense, mere flight from pursuing officers “shall not serve as good cause for the use of a K9 to apprehend an individual.”

The individual must be physically resisting or threatening to resist arrest and the use of a K9 must reasonably appear to be necessary to overcome the resistance, reads section 318.2 of the K9 guidelines.

“The police are lying to you,” insists Charlie Wideman, a friend of Garcia's who contacted the Dispatch contesting the City's argument that Rodriguez was apprehending a violent, fleeing criminal. “They want to paint [Garcia] in a bad light. They did not follow protocol.”

The GPD says that’s not the case at all.

“From our part, we stand behind Rodriguez's actions,” GPD Sgt. Pedro Espinoza told the Dispatch previously. “Rodriguez is one of our finer police officers and he did everything within policy as far as the K9 deployment. We continue to support his efforts in removing violent criminals from the street.”

While in the hospital following his arrest, Garcia claims Rodriguez asked him to rate the job the dog did on a scale from one to ten.

“I told him to get the [expletive] out of here,” Garcia said.

Espinoza denied knowing about the alleged hospital incident.

“Without speaking with Rodriguez specifically I cannot tell you if that occurred,” he said. “The reality is that you're hearing it from [Garcia] and it's one sided. Most of what he said did not occur or has been misinterpreted by himself.”

Wideman said he's miffed at why so much force was needed to apprehend Garcia.

“It's crazy,” he said. “And then to have the GPD saying he is one of our best officers and that he followed protocol? It makes me feel pretty angry about the whole thing.”

Garcia said he plans on surrendering at the Santa Clara County Jail Friday to serve a six-month sentence for the misdemeanor charge of resisting a peace officer. After Garcia serves his time, he said, he plans on formally appealing his criminal conviction.

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