SAN JOSE, CA — A tech salesman whose legs were kicked out from under him by a San Jose police officer investigating a noise complaint is entitled to the $45,000 in punitive damages he was awarded two years ago by a jury, a federal appeals court has ruled.

In reinstating the rare award, the Ninth U.S. Circuit Court of Appeals said it was reasonable for the lower court federal jury to have found that officer Bruce Barthelemy callously used excessive force against Aleksandr Binkovich during the 2009 incident at the downtown Hilton Hotel.

“Viewing all evidence in favor of Plaintiff, substantial evidence supported the jury’s finding that Defendant evidenced ‘callous indifference’ in pushing Plaintiff against a wall and, without warning, sweeping his legs out from under him, when he presented no threat to the safety of the officers or others,’’ the appeals court ruled late last week.

Although the punitive damages technically were imposed only against Barthelemy personally in this case, City Attorney Rick Doyle said the City Council has already agreed to pay them.

The city had appealed the case because officials strongly believe the force Barthelemy used was “not unnecessary,’’ and that the officer exhibited “no malice,’’ Doyle said.

“With all due respect to the Ninth, we don’t agree this merits punitive damages,’’ Doyle said.

Barthelemy is considered a hero by fellow officers for once saving a colleague who came under fire and another time killing a driver who was coming at him and other officers. Both shootings were ruled lawful by the District Attorney’s Office.

However, Binkovich’s lawyer, Anthony Boskovich, said the conduct of the officer and the two other policemen with him was “oppressive.” The same federal jury in 2014 that found Barthelemy had used excessive force found the two other cops were not liable.

The city could end up paying Binkovich $45,000 in compensatory damages. Punitive damages which are intended to deter the defendant and others from engaging in similar conduct, are extremely rare against police officers.

The city also is responsible for paying legal fees and costs to Binkovich’s attorney, estimated at more than $120,000.

Doyle said the city hasn’t decided whether to ask a larger group of Ninth Circuit judges to take up the case, which the court is not required to do. Friday’s ruling was made by a three-judge panel.

From The San Jose Mercury News