ANAHEIM, Calif. (AP) — A Southern California man arrested with his young son for beating an opossum with a shovel can sue police officers for wrongful arrest because it's not illegal to kill an opossum, a federal appeals court ruled.
In 2008, Lorenzo Oliver called Anaheim police about an opossum attacking his bulldogs in his backyard.
Officers Ryan Tisdale and James Brown arrived a short time later and saw Oliver and his then-12-year-old son beating the animal with a shovel. The father, 54 at the time, was arrested, and his son was detained for investigation of trying to kill the animal.
A neighbor said Oliver's son had repeatedly bashed the opossum on the head and the widely-publicized shovel beating led to a landslide of hate mail and death threats. The opossum was euthanized.
Oliver remained jailed until his family raised a $20,000 bond. His son was released to his mother.
No criminal charges were filed.
"There was insufficient evidence to charge him with any criminal offense," Orange County Deputy District Attorney Mark Logan said at the time.
A federal wrongful arrest lawsuit filed last year by Oliver, and his family said they were traumatized by police and the news media.
But the suit was rejected by U.S. District Court Judge Cormac Carney in Santa Ana.
Oliver appealed, and the U.S. 9th Circuit Court of Appeals in San Francisco resurrected the suit last week, the Orange County Register (http://bit.ly/Ns2Kh8) reported Friday.
A three-judge panel said it is not illegal to kill an opossum or any other dangerous critter.
"The police had no evidence that plaintiffs did anything more than try to kill the opossum, which they are entitled to do," according to the appellate panel led by Chief Judge Alex Kozinski. "A reasonable officer could not have believed that the arrests . were lawful."
The appeals court said Oliver and his family could sue the two officers individually.
"I'm obviously disappointed with the ruling. I disagree with the ruling," Assistant City Attorney Moses Johnson, who argued the case before the appeals court, said Friday. He said the city feels the officers have qualified immunity.
"The city is looking to its options to where to go from here," Johnson said.
A voicemail message left for police spokesman Sgt. Bob Dunn wasn't immediately returned.
Information from: The Orange County Register, http://www.ocregister.com