Man Who Bit Officers Wins Day in Court : Ruling: Justices sanction jury trial on gay activist’s claim that his arrest and AIDS test violated his rights.

Forced to submit to blood tests for the AIDS virus after biting two San Diego police officers during a “gay pride” parade, a gay activist won the right Thursday to argue to a jury that his arrest and the tests violated his civil rights.

Resurrecting a lawsuit that a San Diego federal judge had dismissed, the U.S. 9th Circuit Court of Appeals ruled that a jury should decide whether police acted lawfully in arresting and testing Brian Barlow, 44. Only a jury can sort out the disputed events surrounding the arrest, which led to the tests, a three-judge panel of the court ruled unanimously.

Arrested at a 1986 parade, Barlow’s bites led to court cases establishing the rule in California that forbids the disclosure of someone’s AIDS test results to another party. Barlow was acquitted in 1988 of criminal charges in a locally celebrated case that involved an attempt by law enforcement authorities to designate AIDS a deadly weapon in a crime.

Barlow’s lawyer, San Diego attorney George Weingarten, called the ruling a victory for individuals seeking to press claims against police and municipalities. “Hopefully, federal judges will stop granting these baloney motions (for dismissal),” he said.

James M. Chapin, a deputy San Diego city attorney, said he would ask the San Francisco-based 9th Circuit court for an expanded review by an 11-judge panel. “Certainly, I’m disappointed,” he said.

The case stems from a June 7, 1986, parade in Hillcrest.

Police arrested Barlow because an officer reportedly saw him knock down a sign carried by an anti-gay protester. Barlow scuffled with officers monitoring the event, biting one on a shoulder and the other on a knuckle, breaking the skin and drawing blood in both instances.

Barlow said his contact with the sign was accidental, which a witness confirmed, the 9th Circuit Court said. He said he fought back in reaction to the “incredible pain” he felt after being tackled from behind by officers, Judge Harry Pregerson said.

After he was arrested, Barlow was taken to a hospital to be treated for injuries he suffered during the altercation. There, in response to questions, he told police to assume he had AIDS.

Weingarten said he does not know whether Barlow was infected.

Barlow also refused to grant officers permission to take his blood to test it for AIDS. Without obtaining a warrant, they took it, anyway. Later, police obtained a warrant--to seize but not test the blood--and drew a second blood sample. Prosecutors charged Barlow with two counts of battery against a police officer and one count of obstructing a police officer.

Later, police obtained an order authorizing them to test the second sample, saying that, if Barlow was infected with the AIDS virus, the test results could be used as evidence of assault with a deadly weapon or of attempted murder.

But, in 1987, the 4th District Court in San Diego ruled that there could be no exception to a law barring the involuntary disclosure of AIDS tests, even for criminal prosecution. The state Supreme Court let that ruling stand.

In 1988, a San Diego Superior Court jury acquitted Barlow of the criminal charges. The county district attorney’s office had tried to upgrade the charges to assault with a deadly weapon--the weapon being the AIDS virus. Neither blood sample was ever tested.

Barlow, meanwhile, filed a civil lawsuit against the two officers, George Ground and Ron Shay; the Police Department, and the city, claiming that his rights were violated. But U.S. District Judge J. Lawrence Irving, who has since left the bench, dismissed the suit Dec. 15, 1989, saying it was clear that the officers were just doing their jobs.

Pregerson, the 9th Circuit judge, said the case wasn’t that clear. Barlow’s version of the arrest contradicts the one offered by police, Pregerson said, and, if Barlow was arrested for accidentally bumping into a protest sign, a jury ought to decide if that claim for false arrest was true, he said.

Pregerson added that a jury should decide Barlow’s other claims, that officers used excessive force on him and that officers omitted relevant information in their reports. If a jury found the police reports lacking, that could lead to a finding that the police officers are also liable for the $60,000 Barlow spent defending the criminal case, Weingarten said.

What is without doubt, Pregerson said, is that the first seizure of Barlow’s blood was illegal because it was drawn without a warrant. It is “highly unlikely” that AIDS can be transmitted by biting, and any danger to the officers would not have been increased by waiting for a warrant, Pregerson said.

A jury should decide whether that error was grave enough to dispense with the immunity that ordinarily cloaks public officials performing their jobs, Pregerson said.

The city and the officers, however, were clearly immune from money damages for the second sample, Pregerson said. It was taken after officers obtained a warrant, he said.

Judges Melvin Brunetti and Thomas G. Nelson joined in the opinion.