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Tony Piccuta of Scottsdale Injury Lawyers LLC Settles Excessive Force Case Against VA Police

Last week, Scottsdale Civil Rights Lawyer, Tony Piccuta, reached a settlement for a client who was assaulted by police at the Veteran Medical Center in Phoenix, Arizona. The case was filed in federal court in the United States District Court of Arizona. The case name is Hathaway v. Fister, Et Al. (USDC Case #: 2:17-CV-03048). The settlement was for an undisclosed amount, but provided enough for the client that it substantially changed his future.

The Allegations Made In the Lawsuit By Our Civil Rights Lawyers

Our Scottsdale civil rights lawyers claimed in the lawsuit that the client, a marine veteran, went to the Veteran Medical Center in Phoenix for medical aid. While on the premises, he got into an argument with staff and was confronted by Veteran Affairs (V.A.) police officers. The officers grabbed him without warning from behind and then took him to the ground.

After the client was handcuffed, he was led by four police officers to a holding cell on the premises.  The client was handcuffed in a traditional manner with his hands behind his back. Once the door to the holding cell was opened, two of the officers, Joshua Fister and Dominic Lopez, ran the client head first into the back of the holding cell. The two officers were holding the client’s arms. As such, the client was unable to use his arms to stop from colliding head first into the wall.  The client sustained a large cut on his head as a result of the impact. The officers then threw the client to the ground where other officers became involved and held him down on the ground.

Actual Picture of Client on the Holding Cell Floor

The lawsuit further alleged, that when the client was on the floor of the holding cell, officer Fister suffocated the client by covering his mouth and choking his neck to prevent the client from breathing. The client was then hog-tied as he was bleeding excessively from the cut on his head. The client eventually received medical attention while on the cell floor which included the application of steri-strips in an attempt to close the laceration on his forehead.

The client was unable to find any civil rights lawyers or personal injury attorneys to represent him. At one point, a civil rights attorney agreed to represent him, but then withdrew. With nowhere left to turn, the client contacted the civil rights lawyers as Scottsdale Injury Lawyers.  Lead trial attorney, Tony Piccuta, agreed to represent the client. The decision to represent the client was made because the firm believed that the client was a victim of police brutality and had been grossly mistreated.  In addition, Piccuta’s father, who is an attorney of counsel with the firm, is a former naval officer. As a result, the firm believes it owes a duty to veterans to see that they are treated fairly and with respect.

The firm concluded that there was no justification for using force on the client.  The client was detained and bound with his hands behind his back. He was surrounded by multiple police officers in a secure facility where he was not a flight risk or a risk to the public. The client did not strike, kick, punch or attack any of the officers to justify the use of the force.  The client was not involved in the commission of a violent crime. The use of force was extreme and there were several alternative ways to handle the situation. For example, the officers could have opened the door to the holding cell and let the veteran walk in without an altercation or incident.

The Police Brutality and Excessive Force Claims Asserted by Our Scottsdale Civil Rights Lawyers

The civil rights lawsuit advanced a Bivens claim for police excessive force in violation of the client’s Fourth Amendment rights. The Bivens claim was brought against the responsible officers directly in their personal capacities. The firm also filed a claim under the Federal Tort Claims Act because the officers were Veteran Affairs employees working for the V.A. Police. The Department of Veteran Affairs is a department of the United States government, so the claim under the Federal Tort Claims Act was asserted against the United States of America. Those claims included: negligence, battery, assault, and intentional infliction of emotional distress.

Click the following link to view a copy of the complaint filed in the lawsuit. Hathaway v. Fister Complaint

A Bivens Claim Explained by Our Scottsdale Civil Rights Lawyers

When a state or local government employee or agent violates the constitutional rights of a citizen, that employee or agent can be held responsible under the federal statute 42 U.S.C. § 1983. However, when a federal government employee or agent violates the constitutional rights of a person, he or she may not typically be sued under this statute. Federal employees and agents enjoy certain protections when they violate the constitutional rights of a citizen.

As an example, when a law enforcement officer working for a local police department or state agency, violates the rights of a person under the United States Constitution and its Amendments, he or she can be sued under 42 U.S.C. § 1983. This includes: City of Scottsdale Police Officers, City of Tempe Police Officers, City of Phoenix Police Officers, City of Mesa Police Officers, Maricopa County Sherriff Deputies, DPS officers, Arizona State Troopers, etc.  However, federal law enforcement agents and officers working for the V.A. Police, I.C.E., D.E.A., F.B.I., U.S. Marshals, etc., may not because these are all departments of the United States government. However, there is a line of cases which have carved out an exception to this general rule. These cases allow a citizen to sue federal government agents and employees for the violation of his or her constitutional rights.

These cases allow mistreated citizens to sue federal employees and agents in their personal capacities in a limited number of circumstances. These limited situations, and the cases that allow for them, are collectively categorized as Bivens claims. This name comes from the first case where it was established that a federal government employee could be sued personally for violating a constitutional right. That case was entitled Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971). The Bivens case set forth that when a federal agent or employee “acting under color of federal authority” violates a constitutional right, a claim may be advanced by the individual who suffered the harm against that officer or agent in his or her personal capacity.

In Bivens, the Plaintiff filed a claim for the violation of his rights under the Fourth Amendment to the United States Constitution. Mr. Bivens claimed that his rights were violated when officers working for the Federal Bureau of Narcotics raided his home without probable cause or a warrant. Mr. Bivens claimed that this was an illegal search and seizure. Similarly, a Bivens claim may now be brought when federal law enforcement officers use excessive force on a citizen in violation of that person’s Fourth Amendment rights.

Our Civil Rights Lawyers Explain the Federal Tort Claims Act (FTCA)

A claim advanced under the Federal Tort Claims Act is brought against the United States of America only. Unlike a claim asserted under Bivens, an FTCA claim is not brought against the federal government employee or agent in his or her individual capacity. In any case where a Bivens claim exists, an FTCA claim should also be considered and more often that not filed.

The reason for this is simple. When an FTCA claim is advanced, the United States government may pay the claim to dispose of or settle the claim. The United States does not traditionally have this option unless an FTCA claim is presented. Since a Bivens claim is strictly against the federal employee or agent, in his or her individual capacity, the United States is not legally responsible and will not be able to contribute to the settlement.

However, there are distinct disadvantages when filing a claim under the FTCA. The biggest disadvantage is that an individual is not entitled to a jury trial when having his or her FTCA claim decided. An FTCA claim must be tried and presented to a judge. As such, the individual loses the ability to have a jury decide the issues and award money damages. This could be a huge disadvantage especially if an individual is assigned a conservative judge who does not embrace lawsuits against law enforcement.

Another problem is that no punitive damages may be claimed or awarded under an FTCA claim. Punitive damages can be described in layman terms as punishment damages. Basically, punitive damages are an amount that may be awarded not to compensate an individual for his or her pain, suffering or losses, but instead to punish the wrongdoer to prevent him and others similarly situated from repeating the wrongful conduct. This amount is an extra amount over and beyond what may be awarded to compensate the person who filed the lawsuit. Often times, the punitive damages awarded can far exceed the amount awarded to compensate the individual harmed. This is especially true if the acts of the wrongdoer were done intentionally, are despicable or if the jury believes that the wrongdoer lied at trial to avoid accountability.

Practically speaking, the main reason to advance a claim under the FTCA (even with these known limitations) is because it provides for a recovery against a guaranteed source of funds. Namely, the United States government who will then be responsible for paying for the wrongful conduct of its employees or agents. Since a Bivens claim is advanced against the wrongdoer in his or her individual capacity (and not the United States), it is unlikely that the individual has insurance to cover his or her conduct. That same individual will likely have no money to pay any award or judgment and can even file for personal bankruptcy to avoid from paying any amount owed. On the other hand, if a client prevails on his or her FTCA claim, the client can expect to collect directly from the United States government who will have no shortage of funds.

Contact a Scottsdale Personal Injury Attorney to Discuss Your Case

Filing a claim against the United States government and the individuals who work for it can be complicated.  If you are advancing a civil rights claim, or any claim, against the United States and its employees and agents, you should hire an attorney who has experience handling these claims. Our firm has successfully brought claims against the United States and its officers and agents for civil rights violations. Our firm has successfully advanced and resolved Bivens claims in Arizona federal courts. If you or someone you love has experienced a violation of your civil rights, contact Scottsdale Injury Lawyers today for a free consultation.

About the author: The content on this page was written by Scottsdale civil rights lawyer and personal injury attorney Tony Piccuta. Piccuta graduated with honors from Indiana University-Maurer School of Law in Bloomington, Indiana (Ranked Top 35 US News & World Report 2018).  Piccuta took and passed the State bars of Arizona, California, Illinois and Nevada (all on the first try). He actively practices throughout Arizona and California. He is a trial attorney that regularly handles serious personal injury cases and civil rights lawsuits. He has obtained six and seven figure verdicts in both state and federal court. He has been recognized by Super Lawyers for six years straight. He is a member of the Arizona Association of Justice, Maricopa County Bar Association, Scottsdale Bar Association, American Association for Justice, National Police Accountability Project and Consumer Attorneys of California, among other organizations.

Disclaimer: The information on this web site is for informational purposes only and does not constitute legal advice. Reading and relying upon the content on this page does not create an attorney-client relationship. If you are seeking legal advice, you should contact our law firm for a free consultation and to discuss your specific case and issues.


[1] https://www.law.cornell.edu/uscode/text/42/1983

[2] https://supreme.justia.com/cases/federal/us/403/388/

[3] https://www.house.gov/doing-business-with-the-house/leases/federal-tort-claims-act

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