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Steven Richard Allgoewer v. City of Tracy et al

July 5, 2012


APPEAL from a judgment of the Superior Court of San Joaquin County, Carter P. Holly, Judge. (Super. Ct. No. 39200800187830CUCRSTK)

The opinion of the court was delivered by: Robie , J.



Plaintiff Steven Richard Allgoewer sued the City of Tracy and two of its police officers for (among other things) using excessive force in arresting him. Before Allgoewer finished putting on his evidence at trial, the trial court granted non-suit on the ground that Allgoewer could not prevail without offering expert testimony on "what force a reasonable law enforcement officer would have used under the same or similar circumstances." On Allgoewer's appeal, we conclude the trial court prejudicially erred in concluding that expert testimony on the issue of reasonable force was required in this case. Accordingly, we will reverse the judgment of dismissal.


Viewing the evidence in the light most favorable to Allgoewer, the testimony at trial showed that on June 18, 2007, Allgoewer's ex-wife, Leticia Vargas, complained to Officer Nestor Mejia of the Tracy Police Department that Allgoewer had violated a child custody order by failing to return the parties' child to Vargas the day before. When Officer Mejia could not reach Allgoewer by telephone, he drove to Allgoewer's house, where he found Allgoewer gardening in the yard. Officer Mejia engaged Allgoewer in conversation while standing on the sidewalk on the other side of a short fence from Allgoewer. As they spoke, Officer Trevin Freitas joined Officer Mejia on the sidewalk.

Officer Mejia informed Allgoewer of Vargas's complaint, and Allgoewer immediately responded that he had submitted a letter through his lawyer for a 30-day vacation period with the child. After a period of conversation, Allgoewer told the officers he had a draft of the letter inside, and they allowed him to retrieve it. He left the yard through the gate into the backyard, presumably to enter the house through the back door. He then returned with a folder of documents but was unable to provide the officers with a copy of the letter.

Eventually, Officer Mejia went to talk with Vargas, who was parked a block away, about whether she had received the letter Allgoewer claimed to have sent through his attorney. After Vargas told Officer Mejia she had no knowledge of the letter, and a man on the telephone whom she claimed was her lawyer told the officer the same thing, Officer Mejia went back to Allgoewer and relayed that information to him. Allgoewer began to get upset. Officer Mejia told him he was in violation of the custody order and was going to have to give the child up to Vargas. Allgoewer started raising his voice and eventually squatted down to pick up the documents he had brought out of the house, along with the hand rake he had been using to garden. Officer Mejia told Allgoewer to put the rake down because it was making him nervous, but Allgoewer did not comply. He told the officers he was not going to hurt them and told them to "come on in." The officers made their way around the fence into the yard, while Allgoewer started walking toward the backyard gate. Officer Freitas told Allgoewer not to go into the backyard. Allgoewer asked how he was going to get the child if he stayed "out here."

Officer Freitas told Allgoewer to put the rake down or Officer Freitas was going to "tase" him. Then, without either officer telling Allgoewer he was under arrest, Officer Freitas moved toward Allgoewer, grabbed his right arm, and attempted to kick the hand rake out of his hand. Officer Freitas then drove Allgoewer to the ground with a leg sweep. Officer Mejia rushed in to assist.

Officer Freitas was on Allgoewer's back, applying pressure to the side of Allgoewer's face with the back of his tricep in an effort to get Allgoewer's arm out from under him and to Allgoewer's lower back. Allgoewer told the officers he had a hurt shoulder and some crushed vertebrae, and he yelled in pain, but he refused to comply with Officer Freitas's command to put his arms behind his back. Meanwhile, Officer Mejia, who was yelling at Allgoewer to give Officer Mejia his hand, reached down and tried to pull Allgoewer's hand back. When that did not work, Officer Mejia applied his Taser to Allgoewer twice. After the second time, Officer Freitas was able to get Allgoewer's left hand behind his back, and Allgoewer then put his right hand behind his back as well.

The officers arrested Allgoewer for violating a court order, brandishing a weapon, and resisting arrest.

Allgoewer claimed that as a result of the incident, he suffered a broken wrist, torn rotator cuff muscles, and a torn bicep.

In July 2008, Allgoewer commenced this action by filing a complaint against the City of Tracy, Officers Freitas and Mejia, and others not relevant here for deprivation of his constitutional rights and various state law torts. Among other things, Allgoewer alleged that the degree of force the officers used in arresting him was unreasonable under the circumstances.

The case came to trial on January 11, 2011. On January 13, the second day of testimony, defendants filed a motion for non-suit, seeking a ruling from the court at "the close of the case in chief presented by plaintiff." Defendants argued that non-suit would be appropriate because Allgoewer's case was not going to include "the testimony of an expert witness as to standards of practice and procedure for the defendant police officers, and for the supervisory public employees and entities." In defendants' view, "[w]ithout expert testimony to establish an objective reasonableness standard for the defendant officers' actions, the lay jury will have no evidence from which to assess what actions are characteristic of a reasonable police officer." In other words, defendants contended that the amount of force a reasonable police officer would have used under the circumstances the officers faced was "not within the common knowledge of laypersons," and therefore it was "'necessary for the plaintiff to introduce expert opinion evidence in order to ...

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