Ninth Circuit affirms San Francisco’s victory in the “Fajitagate” case.

July 23, 2008 by  
Filed under Around the Courthouse

A three-judge panel of the U.S. Court of Appeals for the Ninth Circuit affirmed summary judgment in favor of San Francisco in a civil rights lawsuit dubbed “fajitagate.”  In an unsigned six-page memorandum decision issued July 23, 2008, Judges John Noonan, Sidney Thomas and Jay Bybee held that the City was not responsible for any injuries plaintiffs may have sustained in an altercation involving three off-duty San Francisco police officers.  In a novel claim for liability involving off-duty officers, plaintiffs argued that the off-duty officers were emboldened to attack the two plaintiffs because San Francisco had not properly disciplined one of the officers — the Police Chief’s son, Alex Fagan, Jr. — for allegedly improper use of force while on duty.

The judges wrote:  “Plaintiffs did not tender sufficient evidence to create a genuine issue of material fact as to whether a City policy of inadequate discipline for officers’ on-duty misconduct was the proximate cause of three off-duty officers’ decisions to assualt the Plaintffs for their bag of steak fajitas.”

Scott Graham, editor of The Recorder, writing in his paper’s blog, opined that with this decision, the case that ignited a storm of media attention “has ended with a whimper.”

Former San Francisco Deputy City Attorney David Newdorf (who with Deputy City Attorney Sean Connolly represented the City in five related S.F.P.D. excessive force cases) briefed and argued the case before Judge Jeffrey White in the U.S. District Court and in the Ninth Circuit.

For all of your litigation questions, contact Newdorf Legal, a San Francisco business litigation law firm.

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