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Defendant's Attorney: Anita Kay Clarke, David L. Brodie, Jeanette Lee Dixon, Mildred K. O'Linn, Robert E. Murphy, Ronald Lenert

Description: San Diego, California personal injury lawyers represented Plaintiff, who sued Defendants on civil rights excessive force violation theories under 42 U.S.C. 1983.


A. The Police Receive a Vehicle Burglary Report and Stop Plaintiff's Car

Around fifteen minutes before midnight on September 5, 2014, Fallbrook, California resident Charles Sommer called 911 and reported that four young Hispanic men had been trying to break into a vehicle a block from his home. (CD Recording & Tr. of 911 Call, Defs.' Ex. A ("Defs.' Ex. A"); Decl. of Hanan Harb ¶ 1). Two of the four left the scene in a white sedan. (Defs.' Ex. A). A Sheriff's radio dispatcher reported an attempted vehicle break-in and that "there were two subjects that were running and got into a white sedan, unknown DOT out of the neighborhood." (CD Recording & Tr. of Radio Dispatch Event E1930789, Defs.' Ex. C ("Defs.' Ex. C"); Decl. of Hanan Harb ¶ 2). The dispatcher did not announce the suspects' race. (Defs.' Ex. C). A few minutes
later, the dispatcher reported that individuals in the same neighborhood were ringing doorbells and running away. (Id.) The dispatcher stated that the doorbell report may be related to the vehicle report. (Id.)

Defendant Sheriff's Deputy Jeremy Banks and several other deputies responded to the radio call. (Decl. of J. Banks ¶ 2 (incorporating his arrest report, Defendants' Exhibit B, as part of his declaration); Banks's Arrest Report, Defs.' Ex. B ("Defs.' Ex. B")). As Banks took Charles Sommer's statement, a white sedan drove past, and bystanders identified it as the suspect vehicle. (Id.) Banks observed two males of an unknown race seated in the driver's and front passenger's seats. (Id.) Plaintiff Mickail Myles sat in the driver's seat and his brother, Elisic Sauls, sat in the passenger's seat. (Id.) Myles and Sauls are African American. (Id.)

The deputies stopped the vehicle. (Id.) Banks could not see how many suspects were in the vehicle, as it had darkly tinted rear windows, and decided to get his K9 partner, Bubo, to assist in the apprehension. (Id.)

B. The Police Order Plaintiff Out of the Car and Into Police Custody

One of the deputies on the scene, Deputy Allison, ordered Plaintiff to step out of the car. (Defs.' Ex. B; Dep. of Deputy Shane Allison, Pl.'s Ex. 10 ("Pl.'s Ex. 10")). Myles complied with that command. (Defs.' Ex. B).

What happened next is disputed. In general, the parties agree that Myles walked backwards from his car to the rear of the patrol car parked behind his vehicle. They agree that Bubo barked throughout the encounter. The parties also agree that once Myles reached the rear of the patrol car, Banks and Bubo made physical contact with Myles. But the sequence of events and whether Myles complied with the officers' commands is at issue.

The parties present the following testimony to the Court:

(i) Plaintiff Mickail Myles: Myles testified that he stepped out of his car and put his hands in the air. He heard multiple, different commands from the officers, such as "get on the ground" and "put your hands in the air." He also heard the dog barking.

Myles was facing away from the officers. As the officers' commands were not consistent, he looked over his shoulder to tell the officers he could not hear and that he did not know what they wanted him to do. The officers told him to turn around and walk backwards towards the patrol car, which Myles did. Myles never lowered his hands, which had been in the air since he exited his vehicle, and never stopped walking backwards. He did not hear any commands while he completed the backwards walk. Once he reached the rear of the patrol car, the officers grabbed Myles, turned him towards the trunk of the car, and then handcuffed him. As he was handcuffed, the officers read Myles his Miranda rights. Only two to five seconds passed from the time he was touched by an officer to the handcuffs being around his wrists.

After Myles was handcuffed, he twice asked the officers what was happening. Hearing no response, he looked over his shoulder and was hit behind his left ear with something made of metal and then bit by the canine on his left torso. Myles next felt the handcuffs tighten around his wrists and multiple officers holding him. (See Dep. of Mickail Myles, Pl.'s Ex. 21 ("Pl.'s Ex. 21")).

(ii) Defendant Deputy Jeremy Banks: Banks testified that when he arrived at the scene, Deputy Allison was giving commands to Myles. Myles was facing the officers. Allison ordered Myles to put his hands in the air and turn around. Myles was slow to comply and said he could not hear. Banks then started giving commands, ordering Myles to face away from the officers and put his hands in the air. Myles complied.

Banks gave Myles a canine announcement, warning him that he must follow Banks's orders or else the dog will bite him. Banks did not ask whether Myles heard the warning. Banks ordered Myles to walk backwards towards the officers. Myles walked backwards but, at some point, he turned around, put his hands down, and started walking towards the officers. Banks responded to Myles by ordering him to stop, face away from the officers, and put his hands in the air. Myles complied. Banks again ordered Myles walk backwards towards his voice. Myles complied, walking backwards to Deputy Allison's car trunk.

When Myles was three to five feet away from Banks, Banks ordered Myles to get on his knees, but Myles did not comply and kept walking backwards. Banks gave the order two to three times. Allison also gave the command, and Myles did not comply. No one asked whether Myles heard the commands. Banks then grabbed Myles by the back of his neck and started to push his head down to the ground. Myles ducked away from Banks's grasp and walked out of his view. Banks feared Myles was going to attack him from behind. Banks then gave Bubo the apprehension command, and Bubo bit Myles on his left torso, released, and bit Myles's shirt.

Deputy Allison and Deputy Brumfield grabbed Myles's left and right arms, respectively, and pushed him against the trunk of Allison's vehicle. In that position, Myles was bent over with his head and torso lying on top of the trunk. Myles resisted Allison and Brumfield's grasp. Banks then used his right fist to strike Myles twice on the left side of his face and ordered him to stop resisting. Myles stopped resisting, and Brumfield and Allison handcuffed Myles and placed him in the rear seat of Allison's patrol vehicle. (See Defs.' Ex. B; Dep. of Deputy Jeremy Banks, Pl.'s Ex. 7 ("Pl.'s Ex. 7") & Defs.' Ex. G ("Defs.' Ex. G")).

In addition to the parties' testimony, witnesses on the scene offer varying accounts of the events. The witness testimony is consistent with parts of Plaintiff's and Defendant's versions in some respects, but different in others:

(i) Michael Dorsett: Dorsett observed Myles exit the vehicle and walk backwards in compliance with the officers' commands. Myles never put his hands down. Dorsett heard the officers' command for Myles to get down on his knees, but noted that the barking dog was closer to Myles. The first physical contact between the officers and Myles was when the officers pushed Myles over the trunk of the patrol car. Myles wiggled and squirmed, but Dorsett did not believe Myles resisted the officers. Dorsett did not see Banks grab or attempt to grab Myles's neck and did not see Myles duck and spin away from Banks. Dorsett did not recall the dog biting Myles and his excerpted deposition testimony does not include any mention of Banks's strikes to Myles. (See Dep. of Michael Dorsett, Pl.'s Ex. 11 ("Pl.'s Ex. 11")).

(ii) Deputy Shane Allison: Deputy Allison testified that shortly after Myles exited the vehicle, Myles announced that he could not hear. Allison ordered Myles to face away from the officers, and Myles complied. Allison ordered Myles to put his arms in the air, with which Myles complied. Myles then turned to face the officers and Allison told him again to turn around and face away. Myles complied. Allison gave commands until Banks took over.

When Myles was near the rear of the patrol car, Banks ordered Myles to get on his knees. Myles did not comply. Next, Allison and Banks ordered Myles to get on his knees, but Myles did not comply. No one asked Myles whether he heard the command. Myles did not make any efforts to flee the scene, and Allison did not observe any weapons on Myles. Allison testified that, once Myles was near the patrol car's trunk, the only indication of noncompliance from Myles was his failure to comply with the command to kneel. However, later in Allison's deposition, he testified that Banks attempted to grab Myles by the neck, and Myles ducked out of the way.

Allison testified that he was the first person to touch Myles. He grabbed Myles on his left wrist. Allison stated that "once I put my hand on [Myles], actions he took made me put him into a rear wrist lock." Pl.'s Ex. 10 at 158. While Allison attempted to gain control of Myles's left arm, Deputy Brumfield approached and "gained control" of Myles's right arm. Id. at 159. At this point, Myles was bent over the trunk. "[A]fter [Myles's] hands were behind his back by [Allison] and Deputy Brumfield," Allison "saw the K-9 attempt to make contact with [Myles]." Id. at 160. Banks hit Myles at least once while Allison and Brumfield held Myles. Allison is "almost a hundred percent certain" that Myles was not handcuffed when Banks struck him. Id. at 162.

Once the officers had Myles in custody, Allison asked Myles why he did not get on his knees. Myles replied, "Because I couldn't hear you. All three of you were yelling." Id. at 137. (See generally Pl.'s Ex. 10).

(iii) Deputy Andrew Brumfield: Brumfield testified that Myles walked toward the rear of the patrol car without any physical altercation. Brumfield admitted that his arrest report does not document any noncompliance by Myles, with the exception of Myles's slow compliance with exiting his vehicle. Brumfield also testified that when Banks struck Myles, Deputy Allison was "trying to control [Myles's] left hand" and that Allison was "struggling to get [Myles's left hand] behind his back." (See Dep. of Deputy Andrew Brumfield at p. 91, Pl.'s Ex. 8 ("Pl.'s Ex. 8")).

(iv) Deputy Ronald Bushnell: Bushnell testified that Myles turned around at least twice while he was walking backwards to the patrol car. He did not observe Myles drop his hands towards his waistband or reach down for anything. He admitted that his arrest report does not document any noncompliance from Myles. (See Dep. of Deputy Ronald Bushnell, Pl.'s Ex. 9 ("Pl.'s Ex. 9")).

C. The Police Clear the Car and Arrange a Lineup of Plaintiff and Sauls

With Myles in custody, Banks completed the procedures to order Sauls out of the passenger side of the white sedan. (Defs.' Ex. B). After Sauls was handcuffed and placed in Deputy Brumfield's patrol vehicle, Banks and Bubo cleared the car, which contained no one else. (Id.) North County Fire Department officers treated Myles's puncture wounds and scrapes caused by Bubo's teeth. (Id.) Myles did not need transport to the hospital by ambulance. (Id.)

The officers arranged a lineup of Myles and Sauls, but a witness stated that they did not match any of the suspects. (Id.) The officers released Sauls, but Banks arrested Myles for violation of California Penal Code section 148(a)(1) for obstructing a peace officer. (Id.)


D. The Police Interview Plaintiff at Fallbrook Hospital

Deputies Brumfield and Bushnell transported Myles to Fallbrook Hospital. (Defs.' Ex. B). Once there, Banks read Myles his Miranda rights and interviewed him. (CD Recording & Tr. of Myles Interview by Dep. Banks, Defs.' Ex. I ("Defs.' Ex. I")). Banks asked Myles if he could hear Banks's commands. (Id.) Myles replied, "Yes and no." (Id.) Myles explained that he heard the commands "open your door," "put your hands up," and "step back." (Id.) Banks asked, "When you got closer, did you hear me tell you to get on your knees?" (Id.) Myles responded, "I did, but - ." (Id.) Myles did not complete his thought. Banks asked, "Is there any reason why you chose not to [get on your knees]?" (Id.) Myles stated, "No reason. I was probably just scared." (Id.)

Banks next asked, "Is there any . . . reason why you pulled away from me when I put my hands on you?" (Id.) Myles responded, "I don't really remember." (Id.) At the end of the brief interview, Banks asked, "[D]id you hear me give canine announcements that you were going to be bit if you didn't do as I told you?" (Id.) Myles answered, "Sir, it was - it was kind of a blur, so - ." (Id.) Myles did not provide a more definitive answer.

Following Banks's interview, Sergeant Brian Hout of the Sheriff's Canine Unit interviewed Myles about the use of Bubo on Myles. (CD Recording & Tr. of Myles Interview by Sgt. Hout, Defs.' Ex. J ("Defs.' Ex. J")). Hout asked, "Did you hear the warning that the dog would be sent or an order to comply?" (Id.) Myles responded, "Sir, it was all a blur." (Id.) Myles added, "I mean, you know, they told me to get out of the car, back up. And there was a lot of them at once, you know, yelling or whatever. I saw the dog, but I don't know." (Id.) Hout next asked, "And is there a reason why you didn't comply with the specific commands?" (Id.) Myles answered, "Sir, I didn't hear." (Id.) Hout also asked how long the dog was biting Myles, and he responded that the bite lasted "[p]robably a couple of seconds." (Id.)

The County declined to prosecute Myles for a violation of section 148. (Pl.'s Ex. 7).

II. Procedural History

Plaintiff filed his complaint on September 4, 2015 against the County of San Diego and Deputy Banks. (Compl., ECF No. 1). Plaintiff brings claims for (1) assault, (2) battery, (3) false arrest, (4) false imprisonment, (5) violation of California Civil Code § 51.7 and § 52.1, (6) violation of 42 U.S.C. § 1983, (7) violation of 43 U.S.C. § 1985, (8) violation of 42 U.S.C. § 1986, (9) negligence, and (10) intentional infliction of emotional distress. Every claim is alleged against the County and Deputy Banks.

Outcome: Plaintiff's verdict for $5 million.

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