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LU Ref# CAI00024
June 10, 2022
Author Ref. No: Vol. 27 No.6
LU Ref# CAI00024
June 10, 2022
Author Ref. No:   Vol. 27 No.6

Robert Phillips
Deputy District Attorney (Retired)

“Getting older is just one body part after another saying: ‘Ha, ha. You think that’s bad, watch this!’”
The Fourteenth Amendment Due Process and the Use of Deadly Force
COURT CASE REFERENCE: Ochoa v. City of Mesa (9th Cir. Feb. 28, 2022) 26 F.4th 1050

Proving a Fourteenth Amendment due process violation in an excessive use of force case requires proof that the officers’ actions “shocked the conscience.”  While “shocking the conscience” is a necessary element of an alleged Fourteenth Amendment violation, it is not an element of a Fourth Amendment excessive force violation.  However, a decedent’s Fourth Amendment rights, where it is alleged that excessive force was used against a decedent, are personal rights which may not be vicariously asserted by the decedent’s relatives. 
Mesa (Arizona) police got a 911 call from a woman who reported that her ex-boyfriend, Sergio Ochoa, had just left her home after they’d had a fight.  She further reported that a handgun had been involved and that Ochoa was strung out on drugs; methamphetamine and possibly heroin.  She also indicated that he had outstanding arrest warrants.  Eight minutes later, the Mesa Police got another 911 call from a resident who lived nearby the earlier caller, complaining that a man had entered his home without permission.  This caller indicated that the man was armed with two knives and was complaining that his girlfriend had just stabbed him.  The intruder left this residence driving a car that matched the description of the car obtained from the ex-girlfriend in the earlier call.  A police helicopter was dispatched to the area and soon spotted the car.  Police units, with the aid of the helicopter, followed the car as it drove erratically from Mesa to the nearby town of Gilbert, inexplicably stopping at green lights and driving on the wrong side of the road.  The driver—later determined to be Ochoa—abandoned the car in a residential neighborhood in Gilbert, and fled into a residence.  As Mesa and Gilbert officers surrounded the house, a resident frantically called to the officers from an upstairs window, complaining that the man they were looking for was in his home and did not belong there.  The officers helped the resident evacuate two children through an upstairs window.  Meanwhile, other officers could see Ochoa through the downstairs windows, arguing with others inside the house, and looking upset while possibly holding a knife. A drug-recognition expert officer later testified that Ochoa appeared to be under the influence of meth.  Fearful that a hostage situation might be developing, seven officers forced entry into the house through the front door, kicking it open. As they did so, Ochoa fled out the back where he was confronted by another officer.  Surrounded by all these officers (in what was described as an “L” shaped line of officers), Ortega was ordered to drop two knives he was observed to be carrying.  Ochoa—who appeared to be angry and ready to fight—ignored the officers’ commands.  After a beanbag round was fired at him apparently with no effect, and a police dog was released, Ochoa took a large step sideways away from the officers in an apparent attempt to escape, at which time the officers fired in unison a barrage of some 30 rounds.  Ochoa fell to the ground on his stomach with at least one of his hands tucked out of view near his waistline. When he failed to respond to commands to pull his hands out to where the officers could see them, the dog was commanded to drag Ochoa so that his hands were visible.  Not surprisingly, Ochoa died at the scene.  A postmortem toxicology report showed that he did indeed have meth in his system.  Bodycam video showed that the time span between when the officers first made entry into the house until the shooting was a total of 16 seconds.  Ochoa’s children (through their mother) and his mother (collectively, the plaintiffs) all filed a wrongful lawsuit in state court against the towns of Gilbert and Mesa, two Gilbert police officers, and seven Mesa police officers.  In their lawsuit, the plaintiffs alleged that the civil defendants violated the Fourteenth Amendment (due process clause) by wrongfully depriving the plaintiffs of Ochoa’s “companionship and familial association.” It was also alleged that the officers violated Arizona state law (i.e., A.R.S. § 12-611) by wrongfully killing Ochoa.  (It was noted by the Court that the plaintiffs did not separately assert any Fourth Amendment excessive force claims, which becomes significant. See “Note,” below.)  The case was removed from state court to federal court (no doubt on the civil defendants’ motion) where the defendants moved for summary judgement (i.e., dismissal of the lawsuit), claiming “qualified immunity,” arguing that there was no violation of a clearly established Fourteenth Amendment right.  The federal district court granted the defendants’ motion, thus dismissing the federal aspect of the lawsuit.  The remaining state court issue (the alleged Arizona state law violation) was returned to the state court for adjudication.  The plaintiffs appealed.