A college student filed an excessive force lawsuit against police after he suffered injuries from pepperball launchers that officers fired at bottle-throwing students in a disorderly crowd of up to 1000 people at a party, in the course of attempting to disperse the crowd. The plaintiff's own deposition testimony appeared to indicate that he was not in an area near a doorway when officers fired, thereby suggesting that he was not an intended target of the shooting, but he subsequently presented deposition testimony of two supporting witnesses indicating that he was in the doorway area at the time. The trial court granted the defendants' motion for summary judgment, applying a "sham affidavit" rule which states that a party may not avoid summary judgment by creating a factual dispute with his own testimony through the conflicting evidence of other witnesses. A federal appeals court reversed, however, finding that the rule did not go as far as the trial court applied it. The rule applies, the court indicated, when a party literally attempts to manufacture a "bogus dispute with himself to defeat summary judgment," such as by creating a "sham affidavit." In this case, the plaintiff "points to deposition testimony given under oath by other ... witnesses who had a different viewpoint from the plaintiff's and who had not suffered head injuries sufficient to cause temporary blindness." Since the grant of summary judgment was based on an improper application of the "sham affidavit" rule, the trial court was reversed, and further proceedings ordered. Nelson v. City of Davis, #07-16905, 2009 U.S. App. Lexis 14765 (9th Cir.).
     Police officer was not entitled to qualified immunity in lawsuit claiming that he shot a man attempting to peacefully leave a street party riot with a beanbag propellant gun, since the right to not be subjected to the use of non-lethal force, under such circumstances, was clearly established. There was no evidence, however, of inadequate training by the city on the use of the beanbag weapon. Ciminillo v. Streicher, No. 04-4346, 2006 U.S. App. Lexis 1020 (6th Cir.). [2006 LR Mar]
     Federal court grants summary judgment to Taser International in lawsuit filed by city attempting to obtain indemnification on a products liability basis for the death of an arrestee killed by a police officer who mistakenly shot him with her Glock semiautomatic weapon when she intended to use her Taser. Court rejects argument that Taser was liable because of a "design defect" making the Taser look too much like a gun, or on the basis of several other theories. Torres v. City of Madera, #02-6385, U.S. District Court, E.D. Cal. (July 11, 2005). [2005 LR Sep]
     Police officer who allegedly intentionally aimed and shot "less lethal projectile" at the head of a "non-threatening" suspect with suicidal tendencies was not entitled to qualified immunity in federal civil rights lawsuit. Mercado v. City of Orlando, No. 04-13477, 407 F.3d 1152 (11th Cir. 2005). [2005 LR Jul]
     Officer did not act unreasonably in shooting a man in the head with a non-lethal projectile in order to prevent his suicide after he refused to drop a knife he was pointing at his own heart. The force used was not excessive, despite the fact that it resulted in a skull fracture, brain damage, and disabling injuries. Mercado v. City of Orlando, #6:03-cv-227-ORL-18KRS, 323 F.Supp. 2d 1266 (M.D. Fla. 2004). [2004 LR Oct]