Officer Violated Suspect’s Rights, Panel Decides

An Oxnard police sergeant’s emergency room interrogation of a gravely wounded crime suspect in 1997 violated the man’s constitutional rights, and the officer must pay monetary damages for that violation, a federal appeals court has ruled.

A three-judge panel of the U.S. 9th Circuit Court of Appeals this week upheld a lower court ruling against Sgt. Ben Chavez, who continued to interview Oliverio Martinez after doctors at St. John’s Regional Medical Center repeatedly asked the officer to leave their patient alone.

The appeals panel found that Chavez violated Martinez’s constitutional rights by failing to tell the farm worker--who was paralyzed and blinded by his wounds but survived--of his right to an attorney before conducting a “coercive, custodial interrogation while [Martinez] received treatment for life-threatening gunshot wounds inflicted by other police officers.”

The panel also rejected defense arguments that Chavez should be exempt from lawsuits because the law was not clear about whether he could conduct what he considered a death-bed interview without notifying Martinez of his rights.

A tape recording of Chavez’s 45-minute interview shows that, in stops and starts, he pressed Martinez for details of his shooting by a police officer investigating drug sales in a vacant lot in south Oxnard. The wounded man’s response was to beg for medical treatment.

“He complained that he was in pain, was choking, could not move his legs, and was dying,” according to the opinion by Judge Richard C. Tallman. “He drifted in and out of consciousness.”

Tallman cited comments by a District Court judge who found that Martinez “repeatedly begged for treatment; he told [Sgt. Chavez] he believed he was dying eight times; complained that he was in extreme pain on 14 separate occasions; and twice said he did not want to talk anymore.”

According to a transcript of the hospital interview, Martinez at one point responded to Chavez’s questions by saying: “My leg hurts. It hurts. I am choking. I am dying, please.”

And Chavez said: “OK, yes, tell me what happened. If you are going to die, tell me what happened.”

The interrogation stopped only after Martinez was moved out of the emergency room for a CT scan.

The lawyer representing Martinez, Samuel Paz of Los Angeles, said the appeals court ruling “means there has to be a little human respect shown” by law enforcement officers for crime suspects.

Chavez’s conduct strongly suggests that “the purpose of this interrogation was to develop a story so police could justify a shooting,” Paz said.

Defense lawyer Alan Wisotsky insisted, however, that Chavez was just doing his job when he climbed into an ambulance with Martinez, rode with him to the emergency room and repeatedly returned to question him after being ordered from the trauma room.

“It was absolutely essential that Chavez get this man’s dying declaration,” Wisotsky said, “because if he didn’t” and Martinez had died, survivors “would say, ‘You had every opportunity, why didn’t you get this man’s version of what happened?’ ”

Chavez’s police superiors also would have criticized the officer for not doing his job properly, Wisotsky said.

Wisotsky noted that, under pressure from Chavez, the suspect admitted fighting with Officer Andrew Salinas, taking a handgun from him and pointing it at the officer. He also acknowledged drinking alcohol and taking heroin the night of the shooting. “He confessed,” Wisotsky said.

The appeals panel agreed with U.S. District Judge Florence Cooper’s ruling that the confession was coerced and cannot be used as evidence in the excessive-force civil trial expected next spring in Los Angeles. The jury hearing that case will also decide the amount of damages Martinez will receive for Chavez’s violation of his rights.

While Martinez apparently acknowledged during the interview that he had pulled an officer’s gun and pointed it at police, he also contradicted that statement. “I am dying, please. . . . I don’t know anything,” he said at one point. He also said the he didn’t intend to shoot the officers, just stop them.

Now 32, blind and paralyzed in both legs, Martinez lives with his farm worker father in Oxnard.

On Nov. 28, 1997, he was returning home by bicycle from a visit with a friend when Officers Salinas and Maria Pena stopped him.

They took a knife from Martinez’s waistband that Paz said his client used at work to cut open hay bales. As they were handcuffing Martinez, a struggle ensued for Salinas’ handgun. The officers said Martinez pointed it at them. Martinez now says he grabbed the gun to prevent Salinas from drawing it.

Then Pena opened fire, shooting Martinez in the eye, spine and three times near the knee.