Controversial court doctrine could end case involving homicide in police custody

FRESNO, Calif. (KFSN) -- A Fresno excessive force lawsuit that got national attention is back in the spotlight.

"All I want is justice for my son," said Cecilia Perez. "These men need to be accountable. They need to be accountable for the thing they've done that killed my son."

Her son, Joseph Perez, died in May 2017 while in custody and the coroner's office deemed his death a homicide.

Action News broke the news last year when body camera video revealed how it all happened.

But a federal judge has since thrown out the family's lawsuit based on the doctrine of qualified immunity.

Watching their son begging for a breath just before dying of asphyxiation brought Anthony and Cecilia Perez to tears.

"It broke our hearts," said Joseph's father, Anthony Perez. "It did. It broke our hearts. It's sad. It was sad for us. Real sad."

"Still sad," said Cecilia Perez. "Every day, it's hard for us."

The family fought to force the video's release as part of their federal lawsuit alleging excessive force against the Fresno Police Department, the Fresno County Sheriff's Office, and American Ambulance.

Police said officers had to restrain Perez to keep him from running into traffic on Palm near Santa Fe.

In 16 minutes and 33 seconds of video from a Fresno police officer's body camera, you can hear officers and deputies trying to care for Perez by placing a towel under his face as he ground it into the gravel.

The angle of the video makes it unclear, but family members believe officers held Perez down the entire time.

When paramedics came, they put a backboard on Perez and told an officer to sit on top of him as he continued to struggle.

Someone did - for more than a minute - as Perez went silent forever.

"When he said he couldn't breathe, they responded not by checking on him to see if he had a pulse or trying to turn him onto his side to make sure he could breathe, but by having an officer sit on top of the board and cause his death," said plaintiff's attorney Neil Gehlawat, who represents the Perez family.

The Fresno County coroner's office ruled Perez died as a result of homicide caused by "compression asphyxia during restraint."

Former Fresno Police Chief Andy Hall blamed drugs as a contributing factor for Perez's death.

"In fact, Mr. Perez was found to have a level of methamphetamine in his system that was 24 times the toxic level at the time of his death," he said in a prerecorded video.

Perez's parents are frustrated that nobody seems willing to take responsibility for what happened to Joseph.

And they say it added insult to injury when a federal judge threw out their lawsuit based on the doctrine of qualified immunity.

"Qualified immunity is something that happens early in the case that causes the case to be thrown out before there's even a trial," said legal analyst Bill Schmidt.

Schmidt says the Supreme Court established the qualified immunity doctrine in 1982 with the idea that government officials have to be able to do their job without potential civil liability at every turn.

To determine if qualified immunity applies, judges consider if there was there a violation of a constitutional right and if that constitutional right was clearly established by Supreme Court or Circuit Court precedent.

Schmidt says proving the precedent sometimes seems impossible.

"What has happened is there has to be a case virtually identical to the one before the Court that's been decided by the U.S. Supreme Court or one of the Courts of Appeals," Schmidt said. "It has to be so similar, almost exact, or the officer or the public official is going to be let off on qualified immunity."

Federal courts have previously granted qualified immunity to Fresno police officers accused of stealing more than $225,000 in cash and rare coins while serving a search warrant.

Idaho officers also had no liability for trashing an innocent woman's home by tossing tear gas grenades inside, even after she gave them the keys so they could look for a suspect who wasn't there.

Dozens of states and the U.S. House have tried to end qualified immunity.

Police officers and their unions have successfully lobbied to defeat nearly every bill.

"I think it's a really bad doctrine and I think this case and the video that shows Mr. Perez's death - which was classified as a homicide - just underscores and demonstrates the need for serious reform," Gehlawat said.

The police department, the sheriff's office, and American Ambulance all declined to comment for this story.

Internal reviews cleared officers and deputies of any wrongdoing. The Office of Independent Review also found the incident was within policy.

Perez's parents say they just want a fair fight.

They've filed a new case in state court, where qualified immunity does not apply, and they're appealing the federal decision.

"Let us have our day in court and let the courts decide because the video, they're going to have to see the video," said Anthony Perez. "The video is going to show everything."
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