War vet sues for unprovoked attack by federal police

By Bob Unruh

A lawsuit by a 70-year-old veteran who was targeted in an unprovoked attack by federal police while he was trying to go through security at a Veterans Administration hospital is being appealed to the U.S. Supreme Court.

That’s after a ruling by the 5th Circuit Court of Appeals that the officers “may act with impunity and not be held accountable for their actions, no matter how unconstitutional.”

A video shows an officer confronting José Oliva and directing him through a screening machine and a second officer attacking as a chokehold was applied.

Eventually, three officers were in on the physical confrontation that left Oliva with injuries requiring surgery. The officers initially filed a charge against Oliva but it was dismissed.

“I feared for my life,” he said in a statement released by the Institute for Justice, which is handling his legal battle. “I survived the bloodiest year in Vietnam, and here I was fearing for my life as these officers beat and choked me in a VA hospital in my own hometown. It was three against one, and they had guns. I knew better than to resist.”

Oliva served nearly three decades in law enforcement after his return from Vietnam.

It happened in February 2016 when federal police working as security at an El Paso VA hospital assaulted him as he was entering for a dentist appointment. As a result of the assault, José suffered an injured shoulder and neck, each of which required surgery, along with a ruptured ear drum. The officers then charged José with disorderly conduct.

According to the institute: “When José sued the officers, a predictable thing happened. The officers invoked qualified immunity—a controversial doctrine that the Supreme Court invented in 1982 to protect government workers from being sued for unconstitutional conduct. The district court denied the officers qualified immunity. The 5th Circuit, however, agreed with the officers and reversed the district court, holding that even if qualified immunity were not available, José still can’t sue because he was assaulted by federal—and not state—officers.”

“This decision is wrong,” said IJ Attorney Anya Bidwell. “Federal officials are not above the Constitution. The 5th Circuit’s decision disregards Supreme Court precedent and departs from the consensus of other courts of appeals that have considered this same issue. As a result, Texas, Louisiana and Mississippi are now constitution-free zones, as far as federal police are concerned. And there are more than 17,000 federal police who work within the jurisdiction of the 5th Circuit.”

The request to the Supreme Court is to intervene and reverse the 5th Circuit.

“If the Fourth Amendment doesn’t protect a 70-year-old veteran beaten by federal police inside a veterans’ hospital for no reason, it doesn’t protect anyone,” said Patrick Jaicomo, an attorney with the Institute for Justice.

He added: “The Supreme Court will have to decide which court was right in José Oliva’s case: the trial court that ruled the officers should have known they couldn’t beat and choke a veteran in an unprovoked attack, or the 5th Circuit, that ruled that it didn’t matter and the officers cannot be held to account for their actions, thus fully immunizing the federal officers. For the sake of every veteran who goes into a VA facility, José hopes the Supreme Court accepts his case and finds in his favor.”

See the attack:

The defendants include Veterans Affairs officers Mario Nivar, Hector Barahona and Mario Garcia.

The petition explains Oliva approached the security checkpoint and placed his belongings in an inspection bin. Nivar then demanded Oliva’s identification, and Oliva explained it was in the bin.

“Nivar, inexplicably agitated, came around the security checkpoint and approached Oliva with handcuffs drawn. Nivar then instructed Oliva to walk through the metal detector, at which point Barahona grabbed Olive and Nivar put him in a chokehold. Before slamming Oliva to the ground, the officers wrenched his arm behind his back so violently that it made ‘a loud popping sound.'”

The officers claimed Oliva tried to enter the hospital without clearing security “because he failed to show identification.”

The trial court had found the officers could be sued because they “violated clearly established law” and used excessive force on someone who “did not commit a crime.”

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