The civil-rights case of a man who alleged a Las Vegas police officer squeezed his testicles for about 10 seconds during an arrest continues to bring out the worst in George W. Bush appointees to the federal bench.

It was a Bush-appointed trial judge, Robert C. Jones, who threw out a jury verdict of $180,000 in damages to Christopher Tortu for his injuries, ruling it was against the “clear weight” of the evidence.” And another Bush appointee -- Judge N. Randy Smith -- displayed a similarly twisted view of the case in dissenting from an appeals court majority that reinstated the award this week.

“[T]he majority substitutes its contested view of the trial evidence and calls the trial court’s view of the same evidence an abuse,” he said.

Tortu was arrested at Las Vegas' McCarran International Airport in July 2001 after he boarded a plane without a ticket. He sued three officers but the jury found only Officer Robert Engle used excessive force by punching him in the head while he lay face down on the airport tarmac and -- when he was handcuffed and seated in the back of a patrol SUV -- squeezing his testicles.

In a March 3 opinion, a 2-1 majority of the 9th U.S. Circuit Court of Appeals ruled that Jones abused his discretion. “The medical evidence presented at trial ... provided irrefutable evidence that there had been injury to the testicles,” it said. “Engle offered no alternative explanation as to how Tortu’s injury may have occurred other than Engle’s squeezing of Tortu’s testicles.”

Echoing Jones's order granting a new trial, Smith doubted that Engle could have reached between the front seats of the SUV and a mounted mobile computer terminal and squeezed Tortu's testicles. “Officer Engle’s ability to make these maneuvers (while standing outside the car) seems highly improbable, if not impossible,” he said in his dissent.

The officer, Smith continued, “had no evidentiary burden to prove how the injury occurred” and given the altercation with Tortu which began on an airport jetway, “the injury very well could have happened without Officer Engle having been responsible.”

Smith also agreed with Jones that the testicle squeezing was a reasonable response to Tortu's efforts to resist arrest. “Th[e] evidence demonstrates that the officers had reason to believe that Plaintiff would continue to fight back on the tarmac and in the vehicle,” he said.

But the jury's finding of liability against Engle could hardly be against the clear weight of the evidence absent an alternative explanation of how the testicle injury occurred. Moreover, as the appeals court majority said, Jones substituted his “own view of the medical evidence in place of the jury’s -- an impermissible practice.”

Among other things, the trial judge did not believe Tortu suffered significant injuries because he did not see his doctor for follow-up visits.

Judge Procter Hug, writing for the majority, also noted that “No testimony or other evidence indicates that Tortu was resisting arrest at the time of the testicle squeezing. He was handcuffed and seated in the rear seat of the SUV between two police officers.”

Many of Bush's most reactionary judicial appointments were to conservative circuits such as the 4th and 6th. But the dismal performance of Jones and Smith in the Tortu case shows how the “liberal” label no longer fits much of the 9th Circuit.

By Matthew Heller
3/5/09