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‘No proof that ex-cop’s illegal acts were due to DPS training’
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Posted on Oct 06 2011
By Ferdie de la Torre
Reporter
Reporter
A man who filed a police brutality lawsuit against the Department of Public Safety and a former police officer has alleged no facts that the officer’s illegal act was the result of any DPS training policy, so the case should be dismissed, according to the Office of the Attorney General.
In DPS’ memorandum in support of motion to dismiss, assistant attorney general David Lochabay asserted that Jin Dong Wang has shown no facts to indicate that DPS was deliberately indifferent to civil rights in its training programs.
Lochabay said that Wang’s allegations of excessive use of force are not actionable under the due process clause because he never became a pretrial detainee.
Citing precedent 9th Circuit ruling, the government lawyer said the due process protections of the 14th Amendment do not support an excessive force claim until one becomes a pretrial detainee.
“Because the facts indicate that [Wang] had not been charged with a crime at the time the alleged incident occurred, there can be no basis for a due process claim,” Lochabay said, adding that Wang’s claims against DPS are fatally defective and the court should dismiss them.
Wang, through counsel Robert J. O’Connor, is suing former police officer Jesse Dubrall for assault and battery, false arrest, emotional distress, violation of civil rights, and negligence.
Wang, a Chinese national, is also suing DPS and former police chief Santiago Tudela for negligence and violation of civil rights. He is demanding at least $100,000 in damages and a court injunction directing DPS to implement procedures to prevent the use of excessive force, and assault of arrested persons in the future.
Wang alleged that Dubrall hit him with a gun’s butt and repeatedly kicked him after mistaking him for another person that police were trying to arrest.
