Magdaleno lawyer discusses case
April 7, 2021 — The family of Gerardo Magdaleno, the mentally ill man who was beaten by Ukiah police last week, is preparing to sue the city. Their lawyer, Isaak Schwaiger, is a civil rights attorney who specializes in police brutality cases. The case has not been filed yet, but Schwaiger says “It is primarily an excessive force lawsuit...but it also has a component that’s derived from the Americans with Disabilities Act.” Another claim will be inadequate training at the UPD for dealing with people having a mental health crisis. There will be a money damages claim, but Schwaiger also plans to ask for reform at the department.
Ukiah Police Chief Justin Wyatt posted a brief statement on Facebook, but has not responded to requests for interviews or a press conference. The department issued a press release signed by a subordinate the day after the incident.
It’s not Schwaiger’s first time in Ukiah. He also represents Christopher Rasku, who was beaten by former UPD sergeant Kevin Murray in 2018. Murray was fired last year after being charged by the District Attorney with sex crimes, burglary, and possession of methamphetamine. Schwaiger says Murray broke eight of Rasku’s ribs after forcibly entering his home. Murray was promoted to sergeant after the incident. “Not maybe the best candidate for sergeant that the department could have picked,” Schwaiger remarked.
Rasku was charged with resisting arrest, but those charges were dropped after bystander video and body cam footage contradicted Murray’s account. Magdaleno is also facing felony charges of resisting or threatening an officer. “It’s practically guaranteed,” Schwaiger says. “Because of a court case from many years ago, Heck vs. Humphries, if a person is found guilty of resisting arrest, that can bar them from seeking justice in the civil courts for the use of excessive force. Police officers know this, and therefore when they use force on someone they arrest them for arresting. It’s their insurance policy so they don’t get sued.” Magdaleno’s case is a civil case, because only district attorneys, not private citizens, can bring criminal cases.
The Rasku case is against Murray directly. The claim against the city was dismissed early in the litigation, but Schwaiger expects the matter to either go to trial or settle soon. Schwaiger plans to sue the officers involved in this case under fictitious names until their identities come out in discovery. “It’ll say John Doe #1 fired a Taser into a naked and defenseless man,” Schwaiger explained. “It’ll say John Doe #2 kicked the man in the head. And it’ll say John Doe #3 punched him about the head twelve times. And it will identify them like that, and once the case opens up, we will learn their true identities and amend the complaint to conform to that evidence.”
Schwaiger, a wartime veteran of the Marine Corps, says “I see things that cops do on Main Street every single day that would have had marines court-martialed if they did it in Iraq. People talk about the militarization of the police. I almost wish they were more militarized, in the real sense of the word. Meaning that there was discipline, and accountability.”