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San Diego must pay $1.5 million to man who was pepper-sprayed and body-slammed by police

A San Diego trolley car moves along a track.
A San Diego trolley car.
(Nelvin C. Cepeda / San Diego Union-Tribune)

The city of San Diego must pay $1.5 million to a man who was pepper-sprayed and thrown to the ground because police mistakenly believed he threw a phone charger at them, a federal jury ruled.

After a weeklong trial, the jury concluded that Gregory McNally was the victim of excessive force and false arrest at the hands of San Diego Police Det. Daniel Riis during an incident at a Metropolitan Transit System trolley stop at the Fashion Valley shopping mall in San Diego more than four years ago.

The verdict capped a lengthy case delayed in part by the coronavirus outbreak, which halted trials in federal courts for months, as well as a highly unusual move by city lawyers to get the judge who had presided over the case for years to step aside just before the trial and after she had made several adverse rulings.

During the case, the city also adopted a novel position. The incident with McNally was captured on an MTS security camera at the station — the same kind of imagery often used by prosecutors as evidence against defendants charged with crimes that occur on MTS property.

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But lawyers for the city tried to keep that evidence out of the McNally trial, arguing it did not “accurately portray what happened” during the incident. In the end, U.S. District Court Judge Janis L. Sammartino, the first judge on the case, said the video was an accurate record and could be shown at trial.

“They use surveillance video all the time, prosecuting misdemeanors and felonies,” said veteran civil rights lawyer Michael Marrinan, one of McNally’s two lawyers. “And all of a sudden, when we are in a civil case when the surveillance video is helpful to the plaintiff, they come up with this argument it isn’t usable, it isn’t good enough.”

At the time of the incident — on July 8, 2016 — city officials, including the police, were making a concerted effort to reach out to homeless people to warn them that an assailant was targeting homeless people in violent and sometimes fatal attacks. Police eventually arrested Jon David Guerrero; he pleaded guilty in January to the killings of four people and assault of nine others and will be sentenced to multiple life terms in prison.

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On that July night, just past midnight, a group of vice detectives in plain clothes, not uniforms, had assembled at the trolley stop to go to homeless encampments in the San Diego riverbed, Marrinan said. As they gathered at the station — an elevated platform above a parking lot at Fashion Valley mall — the detectives heard an object land near them.

In court papers seeking to exclude the security video, Chief Deputy City Atty. Casey Sweda wrote that detectives “heard a deafening noise” and concluded “a large heavy object had been thrown down on them.” One detective said she thought it was a gunshot, Sweda wrote.

Instead, Marrinan said, it was an iPhone charging block, which typically measures about 1 1/2 inches across and weighs about 2 ounces.

But that was not discovered until after the alarmed detectives, apparently believing they were “taking projectiles” as Sweda wrote, ran up the stairs to the platform. One detective had his gun drawn and, as he emerged, spotted McNally, who was heading home after a night out drinking with friends.

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The detective ordered him to raise his hands and get on the ground. A startled McNally did not immediately comply, and Riis dosed him with pepper spray in the face, according to court records.

Riis then grabbed McNally and slammed him to the ground face-first. McNally’s two front teeth were broken, his jaw was injured and he suffered nerve damage from the blow, Marrinan said.

“They give him 10 seconds to figure out this is a cop in plain clothes, and figure out how he can safely get on the ground,” he said. “And before he can even do that, the other guy comes up and sprays him in the face.”

After McNally was handcuffed, another person said they had thrown the object, but that person was not charged. McNally was arrested and accused of resisting arrest and being intoxicated in public. City prosecutors declined to file charges.

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Moran writes for the San Diego Union-Tribune.


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