The old "ignorance of the law" trick flopped when city of Davis and UC Davis police officers tried it on three federal appeals judges.

The officers can't do permanent damage to a student athlete's eye with a pepper ball projectile and then trust their clueless condition to get out of a lawsuit, the judges ruled.

The ruling from a 9th U.S. Circuit Court of Appeals panel stemmed from action taken by the officers in 2004 that cost UC Davis football player Timothy C. Nelson some of his vision and all of his athletic scholarship.

The defense – "qualified immunity" in legal jargon – is commonly invoked by law enforcement officers accused of violating civil rights by employing excessive force against a citizen.

Qualified immunity shields an official from damages in a civil suit unless the plaintiff can make a showing that the official's actions violated a constitutional right, and the right was "clearly established" at the time of the actions.

An attorney for two of the defendants argued in an appellate brief that "no authority existed in 2004 which would have notified the officers … that simply shooting persons with pepper balls to disperse them would constitute a seizure if a person's physical ability to move was temporarily lost."

The attorney, John Whitesides, further argued the officers "did not intend to hit (Nelson) in the eye. … That Nelson was seriously hurt … was a highly unlikely result of the pepper ball deployment, as illustrated by the fact that he was the only person seriously hurt that night, despite the discharge of many dozens of pepper balls. Such an unexpected result … cannot be deemed to render it excessive."

The three-judge panel disagreed, ruling Wednesday that cutting down Nelson and leaving him helpless on the ground violated his Fourth Amendment right to be free from unreasonable seizure.

"Regardless of their motives, their application of force was a knowing and willful act that terminated Nelson's freedom of movement," wrote Circuit Judge Stephen Reinhardt for the panel. "It unquestionably constitutes a seizure under the Fourth Amendment."

Circuit Judges Betty B. Fletcher and A. Wallace Tashima concurred.

"Moreover," Reinhardt wrote, "we hold that the law at the time of the incident should have placed the defendants on notice that the shooting of the pepper balls under the circumstances was an act of excessive force, thus precluding a judgment of qualified immunity."

The 30-page opinion notes that the panel took into account "the particular circumstances in which the use of force occurred on Picnic Day at UC Davis. We must nonetheless conclude that the unreasonableness of their conduct would have been known to any reasonable officer."

Split on issue within the circuit

"We're not happy," Whitesides said in an interview Friday. "In the cases Reinhardt cites, there were zero threats to the officers. In this case, it was a large, hostile crowd, mostly drunk, throwing bottles at police in the middle of the night. This was a riot.

"In addition," Whitesides said, "… we wouldn't be here if Nelson had been hit in the arm or the leg, as a lot of people were. It leaves a welt.

"The police had tried a number of lesser disperal tactics that didn't work. What was the alternative? I can't think of one that wouldn't have posed more risk."

Whitesides said that, while nothing has been decided, it's probably "the better bet" to seek circuit reconsideration or review by an enlarged panel or the U.S. Supreme Court. The reason, he said, is a split within the circuit on the questions of seizure.

In a 2009 opinion on a different matter in the Nelson case, a different panel said there is a triable issue as to seizure, according to Whitesides. The second panel said there is a seizure.

"It's going to be very difficult to figure this out," he said. "The first opinion describes it as a riot. The second describes it as busting up a party. That's the biggest difference in terms of flavor."

Wednesday's decision affirms a 2010 ruling by U.S. District Judge Morrison C. England Jr. of Sacramento. The case, more than 7 years old, may return to England for further proceedings – presumably a settlement or trial.

Student not considered a threat

It was Picnic Day at the university – April 16, 2004 – an event historically marred by unruly, drunken behavior on the part of students and others. That evening as many as 1,000 young people gathered in and around the Sterling Apartment complex, including Nelson, then a 20-year-old sophomore.

Around midnight, Davis police tried to break up the party, but members of the crowd hurled bottles, other items and obscenities at the officers. When police tried to use patrol cars to move the throng, the situation escalated. The officers donned riot gear and formed a skirmish line. Several UC Davis officers responded to a call for assistance, including three armed with pepper balls.

Around 1 a.m., Davis Police Sgt. John Wilson gave the order to fire pepper balls. UCD Officers Javier Barragan, Mary Garcia and Calvin Chang fired into a breezeway where Nelson was part of a group. No one knows which officer fired the shot that hit him in the left eye, and he acknowledges there is no evidence they were aiming at him.

"Thus," says an appellate brief filed by attorneys for the university's officers, "even assuming as true Nelson's version of events, Nelson was an innocent bystander who was accidentally hit with a pepper ball while the police were attempting to disperse a large and riotous crowd."

It is undisputed that Nelson was no threat, doing nothing that would cause police to associate him with the rioters.

When hit, Nelson collapsed, writhing on the ground. Although unable to see, he heard officers proceed past where he lay, but none of them provided assistance.

He wants them held accountable

Nelson, now 29, suffered temporary blindness and "a permanent loss of visual acuity," court records say.

He was unavailable for comment after Wednesday's ruling, but said in a 2009 interview: "None of them had a clue where they were shooting. They ran right by me and knew I needed help."

Three major surgeries had restored some sight, but he still compared his vision "to a foggy mirror." He said the left iris is torn and the eye wanders and does not dilate. That, combined with retina damage and chronic pain, makes it difficult to read, and focusing results in headaches. He is permanently disfigured and can't do any kind of contact sports for the rest of his life, he said.

"It's a struggle, man," he said. "Accepting my inability to see has been traumatic. It was something that was completely, utterly horrifying, life-changing."

Nelson, a standout linebacker and student at Dixon High School, had to withdraw from UCD after losing his football scholarship. He returned a year later, worked part time in a senior center to make ends meet and earned a degree in communications in 2008.

"I have never done anything in my life to make anybody shoot me," he said. "They refuse to take responsibility for what they've done to me. I want a jury to hold them accountable, and then I'll be able to sleep at night."

Nelson, his father and a number of his companions who were present when he was shot filed reports with the Davis and UC Davis police departments.

James Hyde, then Davis' chief, approved a decision not to accept the complaint and not to conduct an investigation of the matter. Calvin Handy, then chief of UC Davis police, authorized an internal investigation but relied solely on the written reports of officers on the scene, which made no mention of anyone being seriously injured.

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