A former UC Davis student who was injured in a Picnic Day weekend melee at a Davis apartment complex can proceed with his lawsuit against Davis and UCD police, the 9th Circuit Court of Appeals ruled Tuesday.
Timothy Nelson, then 21, suffered lingering injuries and lost his football scholarship after being struck in the eye with a pepper ball that was shot by officers responding to the April 16, 2004, pre- Picnic Day gathering at what was then called the Sterling University Apartments on Cantrill Drive.
Police estimated at the time that they had to disperse as many as 800 partygoers, some of whom angrily pelted the officers with bottles and food. Officers fired “several dozen” pepper balls to control the crowd.
Nelson testified at a deposition that he was among a group of people who were walking from a hallway to an outside breezeway when police began firing at them.
“I was just walking out,” Nelson testified, according to the appellate court decision. “That’s all I remember is walking out and … then I got hit.”
However, two women who were at the apartment complex that night, Bridget Collins and Alicia Vittitoe, testified that Nelson was standing in front of the breezeway door when the pepper ball shots were fired, “making him an intended target of the shooting,” the appellate court decision said.
A U.S. District Court judge ruled in the police departments’ favor and dismissed Nelson’s claims in 2007. The ruling stated that Nelson was not an intended target of the shooting because “any inference in that regard that may be drawn from the equivocal testimony of others, however, is nullified by the plaintiff’s own clear version of what transpired during the period immediately surrounding his injury.”
But the appellate court disagreed, saying the summary judgment was predicated on an extension of the “sham affidavit” rule, which precludes a party from creating an issue of fact to prevent summary judgment by submitting an affidavit that directly contradicts previous deposition testimony of the affiant.
“Under the circumstances presented by this case, we conclude the doctrine does not extend that far,” Circuit Judge Sidney R. Thomas wrote in the 10-page ruling.
Nelson’s lawsuit names as defendants the city of Davis and its Police Department, the University of California Regents, former Davis Police Chief Jim Hyde, former UC Davis Police Chief Calvin Handy and various officers and sergeants from both agencies.
— Reach Lauren Keene at [email protected] or (530) 747-8048. Comment on this story at www.davisenterprise.com