A federal judge last week refused to dismiss an elderly man’s excessive force claims against a Westminster police officer who pushed him to the ground and tased him inside a Walmart.

Lawyers for the city and Officer Michael Owen attempted to portray Clayton Louis Shriver, a retired electrician who reportedly suffers from numerous medical conditions, as belligerent and dangerous. They argued Owen acted reasonably by taking down Shriver and shocking him with a Taser twice.

But based on the allegations and surveillance footage of the encounter, U.S. District Court Judge Charlotte N. Sweeney rejected the defendants’ narrative.

“In sum, clearly established law demonstrates that Defendant Owen’s alleged use of excessive force – by for instance, violently throwing Mr. Shriver, a 78-year old, non-violent individual, to the ground, handcuffing, and tasing him – gave rise to a constitutional violation,” she wrote in a March 31 order.

According to his lawsuit, Shriver was inside the Walmart on Sheridan Blvd. on May 15, 2020. While his companion was checking out, Shriver went to sit down at a McDonald’s restaurant within the store. McDonald’s staff allegedly told him he needed to make a purchase, then mentioned he could remain there for 15 minutes.

Shriver, whose ailments include head injuries, felt ill and could not understand what the staff was saying, nor could he communicate clearly with them. 

Owen then arrived and surveillance video captured Shriver and store employees alternately talking to the officer. At one point, Shriver got up and pointed a finger at a worker, but he quickly sat down once Owen touched his shoulder.

The video, which has no sound, depicted Shriver putting his head in his hands and counting on his fingers, allegedly listing the medical conditions he suffered from. At one point, Shriver stood and said he would go to his car. Attempting to walk away, Owen then grabbed Shriver’s arm and pushed him to the ground.

Owen then handcuffed Shriver and tased him. Officer Tyler Farson, who was watching the interaction over the surveillance camera, arrived to assist with Shriver’s arrest. Owen then tased Shriver a second time. Paramedics eventually transported Shriver to the hospital, and he allegedly sustained injuries from the officers’ force.

The charges against Shriver for trespassing, obstruction and resisting arrest were later dismissed.

Shriver’s lawsuit asserted multiple claims: excessive force by Owen, failure to intervene by Farson and false arrest by both officers. He also alleged the city itself was liable for failing to train the men and for maintaining policies that are allegedly “without limitation” on the use of force.

The defendants moved to dismiss the lawsuit. They argued the officers were entitled to qualified immunity, which is a judicial doctrine generally shielding government employees from civil liability unless they violate a person’s clearly-established legal rights. Owen’s reaction was reasonable, they contended, because Shriver was an “objective safety threat” toward Owen and store employees.

“As the surveillance video shows, Plaintiff used physical force to actively resist being taken into custody by thrusting his arm into Officer Owen, assuming a fighting stance, and then preventing Officer Owen (from) gaining control over his hand,” lawyers for the defendants wrote.

U.S. Magistrate Judge S. Kato Crews initially reviewed the motion to dismiss, including the video from inside Walmart. He disagreed the footage showed a “fighting stance” from Shriver, and instead believed the law was clear that officers cannot use excessive force against non-threatening suspects of low-level offenses.

“Plaintiff had committed no crime (and at best he was a trespasser), he was sitting down as he told Officer Owen he was experiencing medical distress,” Crews wrote in recommending against dismissal of Shriver’s excessive force claims. “Nor do the allegations suggest Plaintiff posed an immediate threat to Officer Owen’s safety, or the safety of others.”

At the same time, Crews believed the false arrest and failure to intervene allegations were not viable, nor was Shriver’s claim against Westminster itself. Crews noted the city’s policy “discouraged” Taser use against the elderly and required officers to have an “objectively reasonable” response to confrontations.

Owen objected to Crews’ recommendation.

“The circumstances of this case, as shown through the surveillance footage and as corroborated by the allegations, are a textbook example of a tense and rapidly evolving situation in close proximity to numerous bystanders, which required quick decision making by officers,” his lawyers maintained.

Sweeney, the district judge, overruled the objection. She also viewed the surveillance footage and found it did not undermine Crews’ finding of a constitutional violation. Sweeney adopted the remainder of Crews’ recommendation and dismissed Shriver’s other claims.

The case is Shriver v. City of Westminster et al.