A. United States Supreme Court strikes down Ninth Circuit’s “provocation rule” as undermining traditional Fourth Amendment reasonable force analysis.
County of Los Angeles v. Mendez, 2017 U.S. LEXIS 3396 (U.S. May 30, 2017)
Facts: In October 2010, Los Angeles County Sheriffs’ Deputies shot and injured two individuals, Angel Mendez (“Mendez”) and his then-girlfriend, now-wife Jennifer Garcia (“Garcia”), who were living in a shack in the backyard of a residence being searched by deputies. Deputies had received a tip that a parolee-at-large was at the residence. They ultimately obtained consent to search the house, and deputies were then in the process of clearing the rear yard, which was full of debris and abandoned vehicles. After searching several other storage sheds, the deputies in the rear yard opened the door to the wood and plywood shack in which Mendez and Garcia resided and were resting on a futon.
At the moment that officers peered into the shack, Mendez was moving a BB gun that resembled a rifle, which he often used to shoot vermin. Officers opened fire due to the weapon being pointed at them. Mendez and Garcia brought civil rights violation claims against the County and deputies based on the assertion of being subject to a warrantless search/entry, a failure to knock and announce before entry, and excessive force. The district court found only nominal liability on the first two claims and, despite finding the deputies’ force was constitutionally reasonable, found them liable for excessive force based on application of the Ninth Circuit Court of Appeals’ “Provocation Rule.” The Provocation Rule permitted liability as to officers’ otherwise reasonable uses of force, when an officer intentionally or recklessly provoked a violent confrontation or otherwise caused the need for the use of force based on a separate and independent Fourth Amendment violation. Damages were awarded in the amount of $4 million.
On review, the Ninth Circuit reversed on the knock and announce liability, finding that it was not clearly established law that officers must re-announce their entry (knock-and-announce their presence again) when entering a separate structure from the residence that is on the curtilage (which is defined as the area immediately adjacent to a home). Since deputies would not have known that they needed to separately knock and announce again at the shack (a structure within the curtilage surrounding the residence), they were found to be entitled to qualified immunity. Nonetheless, the Ninth Circuit still found officers liable for their unconstitutional entering of the shack without a warrant. The Ninth Circuit used its Provocation Rule to find that, despite the reasonableness of the force used at the time of the shooting of Mendez and Garcia, the deputies had created the situation that led to the shooting – the very need for the use of force.
The United States Supreme Court granted review.
Held: The Supreme Court rejected outright the Ninth Circuit’s Provocation Rule, which had already been questioned in other circuits. Instead, the Supreme Court’s opinion made clear confirmation of the Fourth Amendment’s standard for evaluating use of force: whether the force was reasonable under the totality of the circumstances, as established by the Court in Graham v. Connor. And the Court reaffirmed that this “inquiry is dispositive: When an officer carries out a seizure that is reasonable, taking into account all relevant circumstances, there is no valid excessive force claim.”
The Court concluded that “[t]he [provocation] rule’s fundamental flaw is that it uses another constitutional violation to manufacture an excessive force claim where one would not otherwise exist.” In other words, liability was ultimately found against deputies, by the Ninth Circuit under the Provocation Rule, based on an excessive force claim, due to the fact that the deputies had been found to have “committed a separate constitutional violation (the warrantless entry into the shack).” Even though the Ninth Circuit limited application of the Provocation Rule to additional Fourth Amendment violations “that in some sense ‘provoked’ the need to use force” or “‘create[d] a situation which led to’ the use of force,” the Supreme Court still resoundingly rejected this concept as “an unwarranted and illogical expansion of Graham.”
The Supreme Court remanded the matter to the courts below, and hinted at some ways that liability could still potentially be established without the abolished Provocation Rule. First, the Court stated that it did not determine the new issue raised by Mendez and Garcia that the analysis of reasonable force under Graham could take into account unreasonable conduct prior to the use of force. Second, liability could still be considered as to the warrantless entry into the shack, if the injuries sustained could be considered to have been directly caused by that constitutional violation (as opposed to the excessive force). These questions were left open by the Supreme Court’s opinion, and could potentially be determined later in the case on remand.
For a more detailed discussion relating to this case, please see Client Alert Vol. 32, No. 12, authored by James R. Touchstone and available at www.jones-mayer.com.
B. Hawaii law prohibiting convicted domestic abusers from owning or possessing firearms is constitutional as applied to man previously convicted of harassing his wife and daughter.
Fisher v. Kealoha, 855 F.3d 1067 (9th Cir. 2017)
Facts: In 1997, Hawaii resident Kirk Fisher was convicted of “harass[ing]” his wife and daughter in violation of Hawaii law. After his conviction, he was placed on probation and surrendered his firearms to the Honolulu Police Department (“HPD”) in compliance with a state court order. After completing his probation, Fisher asked for the return of his firearms. The state court granted his request on the condition that there were no court orders or other circumstances that would prohibit him from possessing firearms under federal law.
Over ten years later, Fisher applied for a permit to get an additional firearm. In response, HPD not only denied his application, but also informed Fisher that he was prohibited from owning and possessing any firearms because of his 1997 harassment conviction. HPD ordered Fisher to surrender or otherwise lawfully dispose of all of his firearms. Fisher transferred ownership of his firearms to his wife and sued the City and County of Honolulu and HPD’s Chief of Police, Louis Kealoha (together, “Defendants”), in federal court.
Fisher alleged that he was allowed to own and possess firearms under Hawaii law and that HPD’s denial of his permit application and its order to surrender his existing firearms violated his Second Amendment rights. Defendants moved for summary judgment, arguing that because Fisher’s 1997 harassment conviction qualified as a conviction for “misdemeanor crime of domestic violence,” Fisher was prohibited from possessing firearms under both 18 U.S.C. section 922(g)(9) and Hawaii Revised Statutes (“HRS”) section 134-7. The district court granted summary judgment to Defendants and determined that applying Section 134-7 to Fisher did not violate the Second Amendment.
Fisher appealed. On appeal, Fisher argued that Section 922(g)(9) applies only in states where the mechanisms set forth in 18 U.S.C. section 921(a)(33)(B)(ii) (expungement, set-aside, pardon, and civil rights restoration) are available to restore Second Amendment rights. He also argued that, even if the statute itself does not require that all listed mechanisms be available, Hawaii’s application of Section 922(g)(9)’s prohibition to him was unconstitutional without them.
Held: The Ninth Circuit Court of Appeals affirmed the district court’s entry of judgment in favor of Defendants. The Court determined that although Fisher stated that he only challenged Section 134-7, the state law merely incorporated federal law.
The Court first interpreted Section 921(a)(33)(B)(ii), which provides that a person “shall not be considered to have been convicted of a [misdemeanor crime of violence] . . . if the conviction has been expunged or set aside, or is an offense for which the person has been pardoned or had civil rights restores . . . unless the pardon, expungement, or restoration of civil rights expressly provides that the person may not ship, transport, possess, or receive firearms.” Reviewing Section 921(a)(33)(B)(ii) and Section 922(g)(9), the Court found that the plain language of the statutes makes clear that Section 921(a)(33)(B)(ii) creates exceptions to the general prohibition of Section 922(g)(9), not preconditions to its application. As such, the Court concluded that the unavailability of a procedure for either expungement, set-aside, pardon, or civil rights restoration did not remove Fisher from the scope of Section 922(g)(9)’s prohibition, or, by extension, HRS section 134-7’s prohibition.
The Court also rejected Fisher’s argument that Section 922(g)(9) was unconstitutional as applied to him. The Court declined to address Fisher’s argument that Section 922(g)(9) was unconstitutional as applied to him because Hawaii law provides for only one of the restoration mechanisms listed in Section 921(a)(33)(B)(ii)—gubernatorial pardon—because Fisher had not applied for gubernatorial pardon for his conviction. Therefore, the Court found that because he failed to avail himself to the one restoration mechanism that was available to him under Hawaii law, he was in no position to argue that Hawaii’s restoration mechanisms were constitutionally insufficient.
C. Defendant’s motion to suppress drug evidence found in his vehicle properly denied, where his passenger’s status as probationer justified a search that would have inevitably led to the discovery of drugs in bags in the backseat.
People v. Cervantes, 11 Cal. App. 5th 860 (4th Dist. 2017)
Facts: In October 2015, San Diego Police Officers Peter Larson and Thomas Cooper stopped Jaime Cervantes for driving his car, a four-door compact sedan, with expired vehicle registration. A female sitting in the front passenger seat identified herself to Officer Larson as Sarah Craft. After a computer-based record search returned no information for Sarah Craft, Officer Larson learned that the passenger’s real name was Tiffany Craft. Records indicated she had a felony warrant and a valid Fourth Amendment waiver as a condition of probation. Officer Cooper detained Craft outside of the car.
Officer Larson told Cervantes that he was going to search his vehicle. Cervantes wanted to know why and requested to speak to a sergeant. Officer Larson called his sergeant to the scene. After he spoke with the sergeant, Cervantes exited his car. Officer Larson then searched Cervantes’ car.
Officer Larson began by searching two bags he found on the driver’s side backseat that were within arm’s reach of where Craft was sitting. He first searched a toiletry bag that was zipped closed. He saw several men’s toiletries and a black pouch. Officer Larson opened the pouch and found several items, including a small clear plastic bag with a crystalline material inside that he believed was methamphetamine. Officer Cooper placed Cervantes in handcuffs. Officer Larson continued to search the pouch and found over four grams of heroin and other items that appeared to be paraphernalia.
Officer Larson then searched the other bag, which was an opaque gray plastic bag with the drawstrings drawn closed. He untied the drawstring and found several personal items typically used by males. Officer Larson continued searching the bag and found an opaque Tupperware container. He opened the container and found approximately 185 grams of methamphetamine.
Craft never claimed ownership of either bag, and Officer Larson never saw her attempt to grab or look at them. After searching the bags, Officer Larson searched the center console, where he found two orange zipper bags. Within one of the orange bags, Officer Larson saw the same material that he believed was methamphetamine.
Once Officer Larson completed his search of Cervantes’ car, Officer Cooper searched Cervantes and found a glass pipe and cash. The officers arrested Cervantes and transported him to the police station. After being read his Miranda v. Arizona rights, Cervantes admitted to transporting drugs for sale.
Cervantes was later charged with one count of transporting methamphetamine and one count of transporting heroin. Cervantes moved to suppress the evidence that the officers found and the statements Cervantes had made in connection with his arrest, arguing that Officer Larson’s search exceeded the permissible scope of a Fourth Amendment waiver search. The trial court denied the motion to suppress. Cervantes pled guilty, and later appealed the denial of his motion to suppress.
Held: The Fourth District Court of Appeal concluded that the search of the center console was justified, and that it would inevitably have led to the discovery of the drugs in the backseat bags. The Court found People v. Schmitz, wherein the California Supreme Court upheld a search of personal items in the backseat of a car based on a front seat passenger’s status as a parolee, controlling due to the similarities between parolees and probationers in the context of vehicle searches. The Court of Appeal extended the Schmitz holding to probationers.
Applying Schmitz to the search of Cervantes’ vehicle, the Court found that Officer Larson was entitled to search the areas of Cervantes’ vehicle where Craft could reasonably have concealed contraband upon learning of police activity. The Court concluded that provided the center console was not locked, secured, or otherwise closed off, a search of a center console based on a front seat passenger’s probation search condition would be objectively reasonable. Since the record did not suggest that Cervantes’ center console was closed off, locked, or otherwise secured, the Court concluded Officer Larson was entitled to search the center console due to Craft’s proximity to it, her apparent ability to conceal contraband in it upon learning of police activity, and her status as a probationer.
Although Officer Larson began his search with the search of the toiletry bag and bag in the backseat, the Court concluded that he inevitably would have also searched the center console and discovered the methamphetamine located in there. That discovery would have justified the search of the backseat bags and led to the discovery of the drugs that led to Cervantes’ guilty plea. Thus, the Court affirmed the trial court’s denial of Cervantes’s suppression motion.
D. To establish deliberate fabrication of evidence, a plaintiff does not have to prove that the official knew or should have known of the plaintiff’s innocence if the plaintiff introduces direct evidence of deliberate fabrication.
Spencer v. Peters, 2017 U.S. App. LEXIS 8712 (9th Cir. May 18, 2017)
Facts: Clyde Spencer and his first wife DeAnne had two children, Matthew and Kathryn. When Spencer and DeAnne divorced, DeAnne retained primary custody of the children in California. Kathryn and Matthew visited Spencer several times a year in Washington after the divorce. Following his separation from DeAnne, Spencer lived with Karen Stone for about two years. Kathryn and Matthew visited Spencer and Stone for extended periods during that time.
In 1983, Spencer married his second wife, Shirley. Shirley’s four-year-old son from a previous relationship, Matthew Hansen (“Hansen”), became Spencer’s stepson. The three lived together. During the summer of 1984, five-year-old Kathryn and eight-year-old Matthew stayed with Spencer, Shirley, and Hansen for six weeks. At the end of the stay, Kathryn allegedly revealed to Shirley that she had been sexually abused by Spencer, DeAnne, Stone, and Matthew. Spencer and Shirley reported Kathryn’s statements to Child Protective Services, and investigations began in California and Washington.
In California, a Sacramento detective investigated DeAnne, who denied abusing Kathryn and any knowledge of the abuse allegations against others, and later passed a polygraph test. The detective ultimately ended his investigation of DeAnne. The detective also spoke with Matthew and Kathryn. Matthew denied any knowledge of the allegations and denied any abuse. Kathryn had conflicting responses to the detective’s questions about sexual abuse, and said she “couldn’t remember the words” when pressed for specifics about the allegations she made to Shirley. An examining doctor found no physical evidence of sexual abuse.
In Washington, Clark County Sheriff’s Office Detective Sharon Krause investigated Stone, who denied abusing Kathryn. Krause eventually ended her investigation of Stone in December 1984. Spencer also denied abusing Kathryn. In September 1984, Spencer took a polygraph test at the Sheriff’s Office. The results of Spencer’s first polygraph were inconclusive, so Spencer took a second test a few days later. The results weakly suggested deception and the examiner’s report indicated the examiner was not certain about the validity of the findings.
In October 1984, Krause continued the investigation in California, where she interviewed DeAnne, two of her sisters, her mother, and Matthew. Each denied any knowledge of any sexual abuse of Kathryn. Krause prepared reports on each of the interviews, including a report on Matthew with many quotations she attributed to him. During the civil trial decades later in this case, Matthew testified that many of the quotations were fabricated, including statements that portrayed that he was generally aware of the sexual abuse allegations and pertaining to his comfort level with Krause.
Krause also interviewed Kathryn twice, without anyone else present. Krause’s interview reports contained scores of specific, explicit quotations from Kathryn that purportedly detailed her abuse by Spencer. At the civil trial, Kathryn testified that all of the sexual abuse quotations were fabrications and that she had denied to Krause that anyone had sexually abused her.
In November 1984, the Clark County Sheriff’s Office sought the opinion of a prosecutor from another county. The prosecutor deemed the case legally insufficient for multiple reasons. In December 1984, Clark County prosecutor Jim Peters interviewed Kathryn on videotape to determine whether she might be a competent witness. Peters did not avoid coaching Kathryn or suggestive questioning because he did not consider the interview to be investigative. Initially Krause was also present, but Kathryn asked her to leave, despite Krause’s earlier interview reports that portrayed that Kathryn was extremely comfortable with her. Kathryn appeared very uncomfortable throughout the entire 45-minute initial interview. Kathryn was unable to describe Spencer’s alleged abuse until after an hour-long break.
After the break, in a 10-minute follow-up interview, Kathryn described various acts of sexual abuse by Spencer. In the follow-up interview, Peters indicated that during the break Kathryn had shown him something with the dolls and, following some coaxing, Kathryn demonstrated two acts of sexual abuse using two dolls. Peters questioned if there was anything more and Kathryn said “I forgot the last thing.” Peters later told his supervisor that he would not charge the case and did not want his name on the charging document. At the civil trial, Kathryn testified that during the interview break she had been coached about what to say and that she went along with describing the acts of sexual abuse so the interview would end.
In January 1985, Spencer was charged with two counts of sexually abusing Kathryn. He plead not guilty and was released. By February 1985, Spencer and Shirley had separated, and Spencer was living at a motel. In February, Shirley dropped off Hansen (Spencer’s stepson) to spend the night with Spencer at the motel. At the civil trial, Spencer’s lawyer described this incident to the jury as a “set up.”
Krause interviewed Hansen after he stayed the night at the motel. According to the investigative report, Hansen told Krause that Spencer sexually abused him on that night, including having anal sex with him. Officers arrested Spencer. In a follow-up interview, Hansen recalled molestation by Spencer during the summer of 1984 of him, Matthew, and Kathryn.
Krause then re-interviewed Kathryn and Matthew separately. According to Krause’s interview reports, both children detailed sexual abuse by Spencer of all three children. At the civil trial, Kathryn and Matthew testified that many of the quotations attributed to them were fabricated.
In May 1985, Spencer was charged with statutory rape of all three children. Spencer pled guilty pursuant to North Carolina v. Alford, which allowed Spencer to maintain his innocence yet plead guilty in the face of the apparent evidence of his guilt. At the civil trial, Spencer indicated he entered his Alford plea because of the extensive fabricated evidence against him. Spencer was sentenced to two life terms plus 171 months. In 2004, the Governor of Washington commuted his sentence to community supervision. In 2009, the courts permitted Spencer to withdraw his Alford plea. In 2010, the prosecutor dismissed all charges against Spencer.
In 2011, Spencer filed an action under 42 U.S.C. § 1983, alleging in part that Krause deliberately fabricated evidence against him, violating his Fourteenth Amendment rights. During the trial, the jury was instructed that to find for Spencer on the deliberate fabrication claim, it must find that, among other things, Krause continued her investigation of Spencer despite the fact that she knew or should have known Spencer was innocent of the charges stemming from the fabricated evidence. The jury returned a verdict in favor of Spencer, and awarded him $9 million in damages. The district court, however, granted summary judgment as a matter of law to the defendants on the ground that Spencer did not introduce enough evidence to prove that Krause knew or should have known of Spencer’s innocence. Spencer appealed.
Held: The Ninth Circuit Court of Appeals concluded that Spencer was not required to show that Krause knew or should have known that Spencer was innocent to prove deliberate fabrication of evidence. The Court explained that deliberate fabrication of evidence by a state official can be established by direct or circumstantial evidence. In cases involving direct evidence, a plaintiff does not have to prove that the official knew or should have known of the plaintiff’s innocence. Citing precedent, the Court explained that deliberate fabrication can by shown by direct evidence when an interviewer deliberately mischaracterizes witness statements in the investigative report. The Court found that Spencer introduced sufficient evidence for a reasonable juror to find that this standard was met. Krause’s reports contained scores of quotations attributed to Kathryn and Matthew. At trial, both testified that they had never made those statements. Thus, the Court concluded that the district court erred in granting judgment as a matter of law to the defendants. The Court remanded the case to the district court with instructions to reinstate the jury’s verdict.
Officer entitled to qualified immunity for fatal shooting of suspect armed with knife.
S.B. v. County of San Diego, 2017 U.S. App. LEXIS 8452 (9th Cir. May 12, 2017)
Facts: On August 24, 2013, San Diego County Sheriff Deputy Adrian Moses responded with several other deputies to a “5150” call at a residence. The call involved David Brown (“Brown”), an intoxicated individual with mental health issues, who was acting aggressively. Family members told deputies that Brown was bipolar, schizophrenic, diabetic, and under the influence of valium and alcohol. Brown had warned his family that “someone was gonna get hurt.”
When deputies entered the residence, they heard Brown inside the kitchen but could not see him because a dividing wall blocked their view. Deputies approached the two entryways into the kitchen with their guns drawn and observed Brown with kitchen knives sticking out of his pockets. Deputies ordered Brown to raise his hands, but Brown did not comply. Brown eventually raised his hands to his shoulders, but told the deputies to, “Just shoot me,” and dropped his hands. Deputy Moses told Brown “If you go for the knife, you will be shot.” Deputies then ordered Brown to his knees, and he complied.
When one of the deputies approached Brown to place him in handcuffs, Brown reached for a knife in his pocket while simultaneously rising from his kneeling position. Deputy Moses opened fire, killing Brown. The several deputies who were present testified to slightly different versions of these events, specifically as to the distance Brown was from deputies when he was shot and whether Brown had his hand on the knife when (1) he started to stand and (2) when Deputy Moses opened fire.
Brown’s family filed suit under 42 U.S.C. § 1983 in federal district court, alleging Deputy Moses used excessive force. The district court denied Deputy Moses qualified immunity, and both he and the County appealed.
Held: Deputy Moses was protected by qualified immunity for his involvement in the shooting. In reviewing the district court’s determinations, the Ninth Circuit noted the general rule regarding the granting of qualified immunity: whether there was a violation of a constitutional right and whether that right was clearly established at the time of the incident. The Ninth Circuit held that, in light of the discrepancy in the deputies’ version of the events, a reasonable juror could find that Deputy Moses used excessive force. However, the Ninth Circuit held that the law was not clearly established at the time of the incident that such conduct amounted to excessive force.
In reaching this conclusion, the Ninth Circuit heeded the instructions from the United States Supreme Court “not to define clearly established law at a high level of generality.” The Ninth Circuit noted that, as of the date of the incident, there was no precedent that would give “fair and clear warning to officers” that Deputy Moses’ use of force was excessive. Additionally, the district court did not have the benefit of the United States Supreme Court’s recent decision, White v. Pauly, which held that “the unlawfulness [of the police conduct] must be apparent” to deny qualified immunity. Because the existing case law on police shootings of suspects armed with a knife did not involve conduct as threatening as Brown’s conduct here, the Court held that Deputy Moses was immune from liability under Section 1983 for his use of deadly force.
For a more detailed discussion relating to this case, please see Client Alert Vol. 32, No. 11, authored by James R. Touchstone and available at www.jones-mayer.com.