V. James DeSimone argues before the 9th Circuit Court of Appeals in the death Daniel Rivera

Los Angeles Civil Rights attorney V. James DeSimone on June 7, 2023, argued before the 9th Circuit Court of Appeals that a district court ruling to grant four LAPD officers qualified immunity should be overturned due to alleged police misconduct in the 2020 death of Daniel Rivera, who was having a mental health crisis.

In August of 2020, LAPD officers responded to reports of Mr. Rivera acting disoriented and approaching people’s doors and windows. Upon their arrival, Mr. Rivera hopped a fence and rolled down a steep embankment, eventually landing in a muddy wash below. The officers found him lying prone and unresponsive, unarmed and posing no immediate threat.

When officers reached Mr. Rivera, they abruptly applied body pressure with their knees on his back, and forcefully grabed his arms to handcuff him, without giving any prior warning or opportunity for compliance. Despite Rivera’s attempt to comply by clasping his hands behind his head, one of the LAPD officers proceeded to Tase him repeatedly in the leg, delivering four rapid, successive shocks.

Following the handcuffing, the officers further restrained Rivera by binding his legs with a hobble. Once immobilized, they kept him in a prone position on the ground, with their weight pressing against him, disregarding the known risk of positional asphyxiation. Rivera was in this position for nearly three minutes before going into cardiac arrest. Rivera died at the scene within minutes of the LAPD’s arrival.

None of the officers present at the scene adhered to LAPD’s policy, which mandates specific measures to prevent positional asphyxiation. The Board of Police Commissioners found that Rivera did not pose a threat to the 10 officers on the scene, further finding the officers acted out of policy.

Rivera never posed a threat, or brandished a weapon, or engaged in any physical confrontation with the officers, DeSimone said.

“There’s a tell when (Los Angeles’) council says, in order to justify the Taser use, she says he’s actively resisting, he’s not restrained,” DeSimone argued. “Well, that’s not the standard. The standard under the policies, under the case law, is that he had to be providing a violent threat to those officers, and that’s not happening.”

“On the bodycam tape, you can hear an LAPD Officer state he was convulsing and that he was like a fish out of water,” DeSimone added. “Well how is a fish out of water a threat?”

The 9th Circuit judges — the Hon. Susan P. Graber, the Hon. John B. Owens, and the Hon. John R. Tunheim — will issue their ruling at a later date.