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An inebriated suspect who fell out of a tree while trying to escape police in Larkspur, then unsuccessfully sued the police over his injuries, has been rejected on appeal.
Robert Timothy Anton Voelker, 36, was arrested in 2012 after police received a report of an erratic residential burglar in the downtown area. Police spotted a suspect who matched the description and chased him on Rice Lane.
The suspect, later identified as Voelker, hopped a fence into a backyard on Monte Vista Avenue. He mounted an outbuilding and then climbed to the top of a redwood tree.
When police searched the yard with flashlights, they heard a noise in the tree and directed their lights into the branches. Voelker fell out of the tree, landed on a roof and was taken to a hospital.
Voelker sued on allegations of negligence and civil rights violations. He claimed the “high intensity tactical lights” blinded him and caused him to lose his precarious hold in the tree.
Voelker named as defendants the Central Marin Police Authority along with its affiliated municipalities: Corte Madera, Larkspur and San Anselmo. He also named the officers on the call, claiming their excessive force deprived them of governmental immunity.
A College of Marin police officer who participated in the search was also named as a defendant, as was the Marin Community College District.
The defendants asked Judge Paul Haakenson to summarily dismiss the lawsuit. He did, finding no impropriety in the officers’ conduct.
Voelker appealed to 1st District Court of Appeal in San Francisco.
“Plaintiff is entitled to compensation for the catastrophic injuries he suffered as a result of defendants’ unlawful aggression,” wrote Voelker’s lawyer, Stephen Kent Rose. “Defendants’ efforts to fell Plaintiff from the redwood tree also constitute assaults, batteries, and the outrageous and intentional infliction of extreme emotional distress under state law.”
Thomas Bertrand, a lawyer for the public agencies, said the officers acted reasonably in pursuit of a burglary suspect and illuminated the tree with standard flashlights.
Bertrand noted that Voelker had spent the day leading up the incident consuming alcohol, crystal methamphetamine and marijuana, as well as the sedative Xanax.
“Appellant believes that on the night of the incident, the moon was full, and nine crows followed him around, flying behind him and squawking at him to warn him that something was going to happen, but he did not listen,” Bertrand wrote, citing statements by Voelker. “He recalls that after falling approximately 80 feet down from the tree, right before he was about to hit the cement, angels grabbed his left leg and right shoulder in midair, scooped him up and moved him to the roof where he landed.”
In a decision released Tuesday, a three-judge appeals panel said Haakenson correctly ruled that Voelker was not entitled to damages under the circumstances.
“Plaintiff’s characterization of the officers’ act of shining a light into the tree as the use of deadly force is frivolous,” Judge Stuart Pollak wrote.
Rose said he is considering additional action.
“We will probably direct the attention of the Court of Appeal to the facts it ignored and ask it to reconsider its decision,” Rose wrote in an email Thursday. “If that fails we will likely ask the California Supreme Court, the United States Supreme Courts, and the International Criminal Court to take up our case. We can’t allow Moscow-style thuggery to prevail in Marin.”