CPOA Case Summaries – September 2016

Provided by Martin J. Mayer and Brittany E. Roberto of Jones & Mayer

CONSTITUTIONAL LAW

  1. Officers had reasonable suspicion to stop defendant based on reliable tip and defendant’s behavior; subsequent arrest and search of defendant’s person and vehicle did not violate the Fourth Amendment.

 United States v. Williams, 2016 U.S. App. LEXIS 17150 (9th Cir. Sept. 20, 2016)

Facts: The Las Vegas Metropolitan Police Department (“Metro”) received a tip on the police hotline from an individual who identified himself as Tony Jones that there was an adult, black male sleeping inside a grey Ford Five Hundred car. He said the man did not live in the adjacent apartment complex and that the man was known to sell drugs in the area. Jones provided the operator with his phone number and address.

Metro dispatched two officers to the reported area. When they arrived, they saw a grey Ford Five Hundred with temporary license plates in the parking lot. The Ford was parked in between two cars and in front of a parking curb. The officers stopped their patrol car behind the Ford, blocking its exit. They turned on their overhead light, take-down lights and spotlights, shining them into the Ford’s windows. After they turned on their lights, a black male, later identified as Tony Williams, sat up in the driver’s seat inside the Ford. He looked to his right and left, then started his car, then briefly placed his car in reverse and then back into park. Both officers approached the car on foot, one on each side of the vehicle.

As they approached, they ordered Williams out of the vehicle. Williams got out of the car and the officers continued walking toward him. When the officers were within a few feet of Williams, he fled. The officers gave chase, one on foot and one in the patrol car, until Williams fell nearby. One of the officers approached him with his gun drawn and stood over Williams. He conducted a protected sweep of Williams’s backside, and then placed him in handcuffs. He then did a pat down of Williams’s backside. After helping Williams to his feet and taking him to the front of the patrol vehicle, the officer then did a pat down of Williams’s front and reached into all of Williams’s pants’ pockets. In the right front pocket, the officer found a plastic bag containing crack cocaine, and in the left pocket he found approximately $1100.

The officers placed Williams in the back of the patrol car and then returned to where the Ford was parked. While Williams was handcuffed in the back of the patrol car, the officers searched the Ford, where they found a gun inside of a purse. Williams was indicted for being a felon in possession of a firearm, and later charges were added for possessing a controlled substance with intent to distribute and possessing a firearm in furtherance of a drug trafficking offense.

Williams moved to suppress the evidence of the crack cocaine and the handgun. The district court granted the motion, and the government appealed.

Held: The officers had a reasonable suspicion to make an investigatory stop; had probable cause to arrest Williams for violating Nevada law by obstructing the officers in their attempt to detain him; the search of Williams’s pockets was a valid search incident to arrest; and there was probable cause to search Williams’s vehicle based on the contraband officers found during the arrest.

In reaching its conclusion, the Ninth Circuit explained that the Fourth Amendment permits brief investigative stops when law enforcement has a reasonable suspicion that the person stopped is engaged in criminal activity. When telephone tips are involved in investigative stops, the focus is whether the tips have sufficient signs of reliability to provide reasonable suspicion to make an investigatory stop. Citing Alabama v. White[1] and Navarette v. California,[2] the Court explained that anonymous tips had been found to have sufficient signs of reliability where the tipster predicted a defendant’s future behavior and the officers corroborated the tip through independent police work. Factors in assessing reliability of tips include: eyewitness knowledge, police corroboration of the tip, use of the 911 system, and reports of specific and ongoing crimes.

Applying the factors outlined in White and Navarette, the Court held that the officers had a reasonable suspicion to stop Williams based on the information they possessed and the tip’s reliability. The Court noted that the tipster gave all of his information to police, the information provided was verified by independent observation, and the tip provided specific criminal allegations—namely that Williams was trespassing by sleeping in his vehicle in the parking lot of an apartment complex at which he did not reside. Further, the Court noted, Williams’s behavior of looking both ways and putting his car into reverse was consistent with someone intending to flee, and the incident occurred in a high crime area. Therefore, based on the totality of the circumstances, the Court concluded that the officers had reasonable suspicion to briefly detain Williams.

Next, the Court found that the officers had probable cause to arrest Williams because he obstructed the officers in their efforts to enforce Nevada Revised Statute section 171.123, which permits officers to detain a suspect when the officers have a reasonable suspicion he or she has committed, is committing, or is about to commit a crime in order to obtain that individual’s identity.

Next, since the officers had probable cause to arrest Williams, the Court found that they performed a valid search incident to arrest of Williams’s person, which lawfully extended to the insides of his pockets, after arresting Williams for obstruction.

Finally, the Court found that there was probable cause to search Williams’s vehicle because they had found contraband on his person, which provided the officers with probable cause to believe that the vehicle Williams had just fled contained further contraband or evidence of drug dealing. Citing United States v. Ewing,[3] the Court explained that officers may conduct a warrantless search of an automobile, including containers within it, if they have probable cause to believe the vehicle contains contraband or evidence of criminal activity. Looking at the totality of the circumstances, the Court found that the officers had probable cause to believe that evidence of contraband would be found in Williams’s vehicle, citing the tip Metro received, the location in a high-crime neighborhood, Williams’s behavior and attempt to flee the scene, and the crack cocaine cash found on Williams’s person. Thus, based on the information the officers had before arresting Williams, and the contraband they found during the arrest, they had probable cause to believe that Williams’s vehicle contained further contraband or evidence of drug dealing.

  1. Police may use evidence obtained in “plain hearing” when overhearing speakers unrelated to target conspiracy while listening to a valid wiretap.

United States v. Carey, 2016 U.S. App. LEXIS 16411 (9th Cir. Sept. 7, 2016)

Facts: Pursuant to the Wiretap Act,[4] federal agents obtained a wiretap order for a San Diego number based on evidence that Ignacio Escamilla Estrada (“Escamilla”) was using the number in a drug smuggling and distribution conspiracy. In monitoring the wiretap, agents overheard drug-related conversations. At some point during the wiretap period, the agents realized that Escamilla was not using the phone. The agents consulted with a federal prosecutor and continued to listen, believing that the people on the phone might have been part of the Escamilla conspiracy.

About twelve days into the wiretap, the agents intercepted a phone call indicating that someone would be traveling with drug money. The agents coordinated with local police officers to execute a traffic stop on a car involved in the phone calls. During the stop, officers identified the driver as Adrian Madrid and searched the vehicle, where they found cash and a cell phone tied to the number that was subject to the wiretap. They then obtained a search warrant to a related residence, where they found cocaine. With Madrid’s identity, the agents learned there was a separate Drug Enforcement Agency (DEA)/Immigration Customs Enforcement (ICE) investigation of Madrid and his associates; however, there was no overlap between the Escamilla and Madrid conspiracies.

Later, the agents identified Michael Carey, a speaker in some of the phone calls overheard on the wiretap, as a member of the Madrid conspiracy. Carey was charged with conspiracy to distribute cocaine. He moved to suppress the evidence obtained from the wiretap, arguing that the government violated the Wiretap Act by never applying for a wiretap as to him or his coconspirators. The district court denied the motion, concluding that the government could rely on the valid Escamilla wiretap to listen to Carey’s conversations.

Carey pled guilty, and then appealed the denial of his motion to suppress. On appeal, Carey argued that the suppression was warranted because the government did not comply with the requirements of the Wiretap Act as to him or his coconspirators because the wiretap application only demonstrated probable cause and necessity as to Escamilla’s conspiracy.

Held: The government may use evidence obtained from a valid wiretap prior to the officers’ discovery of a factual mistake that causes or should cause them to realize that they are listening to phone calls erroneously included within the terms of a wiretap order. Once officers know or should know that they are listening to conversations outside the scope of a wiretap order, they are required to discontinue monitoring the wiretap until they secure a new wiretap order. In reaching its conclusion, the Ninth Circuit first noted that there was no Ninth Circuit precedent directly on point.

The Court reviewed dicta from the Seventh Circuit’s decision in United States v. Ramirez,[5] where the Seventh Circuit explained that, in a situation when the government executes a valid wiretap, but discover it was obtained by mistake and at the same time overhear incriminating conversations, the record of the conversations is admissible as evidence. In such scenario, the Seventh Circuit noted that the “plain view” doctrine is simply translated from the visual to the oral dimension.

As applied to Carey’s case, the Ninth Circuit stated that the government could only use evidence obtained in accordance with the “plain hearing” doctrine. Since it was unclear how much of the government’s wiretap evidence fell outside of the “plain hearing” doctrine, the Court reversed and remanded the case to the district court so it could determine whether any evidence should be suppressed under the proper legal standard outlined by the Court.

  1. Whether law enforcement officers can constitutionally restrain a female inmate while she is pregnant, in labor, or during postpartum recovery must be assessed on a case-by-case basis.

Mendiola-Martinez v. Arpaio, 2016 U.S. App. LEXIS 16666 (9th Cir. Sept. 12, 2016)

Facts: Miriam Mendiola-Martinez was arrested in October 2009 when she was six months pregnant. In December 2009, two weeks before her due date, when Mendiola-Martinez began having contractions, Mendiola-Martinez was transported by Maricopa County Sheriff’s Office (MCSO) officers to the hospital to rule out active labor. Once at the hospital, medical staff confirmed that Mendiola-Martinez was in active labor. She gave birth later that day via cesarean section (“C-section”). She was not restrained during the procedure.

Following the C-section, Mendiola-Martinez was taken to a recovery unit, where an MSCO officer placed a grey plastic cuff around her ankle, which was connected to a metal chain that attached to her hospital bed. The chain was between six and eight feet long and allowed Mendiola-Martinez to walk around her hospital room and to the bathroom. An armed MSCO officer stayed with her in the recovery room. She was released from custody soon after giving birth.

While Mendiola-Martinez was in jail, the MSCO had in place a written policy regarding the transportation and restraint of prisoners and inmates (“Restraint Policy”).  The Restraint Policy required that officers restrain inmates during transport, including those who were sick are injured, and while inmates were outside of the jail, except when medical procedures required the absence of restraints during treatment. The Restraint Policy did not contain an exemption for pregnant women, women in labor, or women in postpartum recovery.

Two years after her release from MSCO custody, Mendiola-Martinez brought a civil rights action against Maricopa County and Sheriff Joe Arpaio (“County Defendants”), among others. She alleged violations of 42 U.S.C. §§ 1981 and 1983 for the treatment she received while in MSCO custody. Specifically, she alleged that the County Defendants were deliberately indifferent to her serious medical needs in violation of the Eighth and Fourteenth Amendments by using restraints and shackles on her while she was in labor and postpartum recovery.

The district court granted summary judgment in favor of the County Defendants, concluding they were entitled to qualified immunity on Mendiola-Martinez’s shackling claims. Mendiola-Martinez appealed. On appeal, she argued that the County Defendants’ policy of shackling women during labor and postpartum recovery violated her rights under the Eighth and Fourteenth Amendments.

Held: Whether the Constitution permits law enforcement officers to restrain a female inmate while she is pregnant, in labor, or during postpartum recovery depends on factual disputes that must be resolved by a properly instructed jury.

Before assessing Mendiola-Martinez’s Eighth Amendment claim, the Court explained that the district court erred in concluding that the County and Sheriff Arpaio were entitled to qualified immunity. As to the County, the Court explained that the County was not entitled to qualified immunity because counties do not enjoy immunity from suit under 42 U.S.C. § 1983, noting that only officials enjoy such protections. Similarly, the Court found that Sheriff Arpaio was not eligible for qualified immunity because he was sued in his official capacity, and therefore the claims against him were claims against the County.

Assessing Mendiola-Martinez’s Eighth Amendment claim, the Ninth Circuit explained that, to prove a violation of the Eighth Amendment, a plaintiff must demonstrate that the defendant: (1) exposed the plaintiff to a substantial risk of serious harm, and (2) was deliberately indifferent to the plaintiff’s constitutional rights.

The Court assessed whether the Restraint Policy exposed Mendiola-Martinez to a substantial risk of serious harm. Mendiola-Martinez presented evidence from experts that the Restraint Policy subjected Mendiola-Martinez to a substantial risk of harm and cited to other circuits’ opinions that held that shackling female prisoners while they were in labor created a substantial risk of serious harm. The Court noted that the injuries caused by the restraints in the cases cited demonstrated the risks imposed by shackling women in labor, that the cases aligned with numerous organizations that warned of the danger of restraining women in labor, and that the State of Arizona had also, three years after Mendiola-Martinez gave birth, recognized the risk of shackling pregnant women, having banned the use of certain restraints on prisoners being transported for delivery or during labor, delivery, and postpartum recovery, with exceptions. The Court found that Mendiola-Martinez had presented sufficient evidence for a reasonable jury to conclude that by restraining her while she was in labor and postpartum recovery, the County Defendants had exposed her to a substantial risk of serious harm.

Looking at whether Mendiola-Martinez had demonstrated that the County Defendants were deliberately indifferent to her constitutional rights, the Court concluded that a jury could conclude they were aware of the risk caused by restraining an inmate in labor and deliberately indifferent to that risk by restraining Mendiola-Martinez during transport. The Court noted that a jury could infer awareness of the risk because such risk was obvious.

Noting that the issue of deliberate indifference in restraining Mendiola-Martinez during postpartum recovery was a closer question, the Court concluded that a reasonable jury could not find that the use of the leg tether constituted deliberate indifferent to Mendiola-Martinez’s health and safety in violation of her constitutional rights because such risk was not as obvious as the risk of restraining an inmate in labor, and the length of the leg tether was sufficient to allow her to walk around the room.

  1. Federal statutes and regulations and ATF letter relating to prohibition on selling firearms to unlawful drug users did not violate First, Second, or Fifth Amendment rights of Nevada medical marijuana registry card holder.

Wilson v. Lynch, 2016 U.S. App. LEXIS 16108 (9th Cir. Aug. 31, 2016)

Facts: Marijuana is a Schedule I controlled substance under the Controlled Substances Act.[6]  Various federal statutes and regulations prohibit unlawful users or addicts of any controlled substances from possessing or receiving any firearm or ammunition, and further make it unlawful for any person to sell firearms or ammunition to any person knowing or having reasonable cause to believe that such person is an unlawful user of or addicted to any controlled substance.

In September 2011, the Bureau of Alcohol, Tobacco, Firearms, and Explosives (“ATF”), issued the “Open Letter to All Federal Firearms Licensees.” The letter stated, “[A]ny person who uses or is addicted to marijuana, regardless of whether his or her State has passed legislation authorizing marijuana use for medicinal purposes, is an unlawful user of or addicted to a controlled substance, and is prohibited by Federal law from possessing firearms or ammunition. Such persons should answer “yes” to question 11.e. on ATF Form 4473 . . . and you may not transfer firearms or ammunition to them. Further, if you are aware that the potential transferee is in possession of a card authorizing the possession and use of marijuana under State law, then you have “reasonable cause to believe” that the person is an unlawful user of a controlled substance. As such, you may not transfer firearms or ammunition to the person, even if the person answered “no” to question 11.e. on ATF Form 4473.” Form 4473, developed by ATF, confirms eligibility for gun ownership under federal law.

  1. Rowan Wilson obtained a Nevada medical marijuana registry card in May 2011. When she attempted to purchase a firearm a few months later, the storeowner, who knew Wilson had a marijuana registry card, told her that because she had a registry card, she was deemed an unlawful user of a controlled substance and therefore he could not sell her a firearm without jeopardizing his federal firearms license. The storeowner, who had recently received the ATF letter, refused to sell Wilson a firearm.

Wilson, alleging that the storeowner’s refusal to sell her a firearm was a direct consequence of the storeowner’s receipt of the ATF letter, filed a lawsuit against the federal government (“Government”) in 2012. Wilson asserted violations of the Second Amendment, Fifth Amendment, and First Amendment. The Government filed a motion to dismiss Wilson’s complaint, which was granted by the district court. Wilson appealed.

Held: Addressing each of the constitutional violations alleged by Wilson, the Ninth Circuit found no constitutional violations and affirmed the district court’s dismissal.

Second Amendment

Wilson challenged the federal statutes and regulations and the ATF letter as unconstitutionally burdening her individual right to bear arms under the Second Amendment. The Court accepted as true Wilson’s allegation that she obtained a registry card, but chose not to use medical marijuana for several reasons, including the desire to make a political statement.

The Court explained the two-step inquiry to determine whether a law violates the Second Amendment. First, courts look at whether the challenged law burdens conduct protected by the Second Amendment. If it does, the second step is to apply the appropriate level of scrutiny.  As to the first step, the Court found that, since Wilson insisted she was not an unlawful drug user or otherwise prohibited from possessing firearms under the Second Amendment, by preventing her from purchasing a firearm, the federal statutes and regulations and the ATF letter directly burdened her Second Amendment right to possess a firearm.

Next, the Court determined that intermediate scrutiny was the appropriate level of scrutiny, since the burden placed on Wilson was not a severe burden, given that she could have acquired firearms prior to obtaining her registry card or surrendered her registry card so she would not be considered an unlawful drug user. The Court concluded that the challenged provisions survived intermediate scrutiny because the degree of fit between the provisions and the aim of preventing gun violence was sufficient. The Court affirmed the lower court’s dismissal of the Second Amendment claim.

First Amendment

The Court also applied intermediate scrutiny to Wilson’s claims that her acquisition of a registry was expressive conduct protected by the First Amendment. In the circumstances alleged, the Court agreed that her acquisition of a registry card fell within the scope of conduct protected by the First Amendment. However, the Court noted that the production, distribution, and use of medical marijuana are not protected by the First Amendment, and any efforts by the Government to eliminate the production, distribution, or use of medical marijuana are not evidence of any conspiracy against free speech. Similarly, the Government’s attempts to reduce gun violence through regulations and the ATF letter were not directed at the expressive portion of Wilson holding a registry card. Therefore, any burden the Government’s anti-marijuana or anti-gun violence efforts placed on Wilson was only incidental.

Applying the standard from United States v. O’Brien,[7] the Court found the Government may constitutionally regulate the sale and possession of firearms; the ATF letter furthers the Government’s aim of preventing gun violence; the Government’s efforts to restrict marijuana use and reduce gun violence were unrelated to the suppression of free expression; and the ATF letter only burdened a single form of expression supporting medical marijuana use—the holding of a registry card, and Wilson was free to advocate as vigorously and publicly as she wanted while still possessing firearms. Therefore, because the ATF letter satisfied each of the O’Brien conditions, it survived intermediate scrutiny, and the Court affirmed the district court’s dismissal of the First Amendment claim.

Fifth Amendment

The Court rejected Wilson’s claims that the ATF letter violated her procedural due process rights under the Due Process Clause of the Fifth Amendment and also violated the Equal Protection Clause.

Since there is no constitutionally protected liberty interest in simultaneously holding a registry card and purchasing a firearm, the Court found no procedural due process claim existed. The Court further concluded that there was no Equal Protection Clause violation. Because registry card holders and medical marijuana users were not members of a suspect or quasi-suspect class and the regulations did not interfere with any fundamental rights, the Court applied rational basis review. The Court concluded that the regulations at ATF letter survived rational basis review because they were reasonably related to reducing gun violence, and affirmed the lower court’s dismissal of Wilson’s Fifth Amendment claims.

For a more detailed discussion of this case, please see Client Alert Vol. 31, No. 18 authored by Martin J. Mayer and Tarquin Preziosi and available at www.jones-mayer.com.

  1. There is a due process right to be free of state-created dangers in the workplace.

Pauluk v. Savage, 2016 U.S. App. LEXIS 16511 (9th Cir. Sept. 8, 2016)

Facts: Daniel Pauluk worked for the Clark County Health District (CCHD) from 1998 until 2005, when he left due to illness. He initially worked at the County’s Shadow Lane facility, a facility that had roof and water leakage problems that resulted in the spread of toxic mold throughout the building. He was transferred several times during his employment, and, in 2003, he was transferred back to Shadow Lane, over his objection. Between 2003 and 2005, Pauluk repeatedly complained about the presence of mold and requested, both orally and in writing, to be transferred from Shadow Lane because the mold exposure was negatively impacting his health. All of his transfer requests were denied.

Pauluk was exposed to the mold as early as 1998, but did not begin experiencing health issues until he was transferred back to Shadow Lane in 2003. After his transfer, he experienced numerous health issues. In 2005, he took leave under the Family and Medical Leave Act[8] based on his doctor’s certification that he was suffering from toxic mold exposure with airflow obstruction. Pauluk died in 2007, and his amended death certificate listed his cause of death as “mixed mold mycotoxicosis.”

Following his death, Pauluk’s wife and daughters (“Plaintiffs”) filed an action under 42 U.S.C. § 1983 against the CCHD and Pauluk’s supervisors, alleging that their role in exposing Pauluk to a dangerous, mold-infested work environment caused his death. Plaintiffs brought claims under the Due Process Clause of the Fourteenth Amendment as well as state law.

After several years of litigation, the supervisors moved for summary judgment. The district court granted summary judgment to them on a negligent supervision and training claim, but denied summary judgment as to all other claims, including their claim that they were entitled to qualified immunity. Defendants filed an interlocutory appeal seeking review of the denial of qualified immunity.

Held: Plaintiffs demonstrated a violation of the constitutional right, grounded in the Due Process Clause, to be free of state-created danger. However, because it was not clearly established at the time of Defendants’ actions that this right applied to claims based on physical conditions in the workplace, the Defendants were entitled to qualified immunity.

The Ninth Circuit explained its analysis in qualified immunity cases, noting that, first, a court must determine whether the facts presented at summary judgment show that the officer’s conduct violated a constitutional right, and second, if the court finds the conduct did violate a constitutional right, the second prong requires the court to determine whether, at the time of violation, that right was “clearly established.”

Assessing whether there was a constitutional right that was violated and looking at precedent, the Court explained there are two exceptions to the general rule that a state actor is not liable under the Due Process clause for its omissions: (1) where a special relationship exists between the plaintiff and the state, and (2) when the state affirmatively places the plaintiff in danger by acting with deliberate indifference to a known or obvious danger, known as the state-created danger exception.

Despite Defendants’ argument that Collins v. City of Harker Heights[9] precluded application of the state-created danger doctrine in cases where the danger is a physical condition in the workplace, the Court concluded that it was not. The Court explained that the Plaintiffs’ authority to bring a state-created danger claim in a workplace safety case was consistent with the general rule under the due process doctrine that a state actor is not liable for his or her omissions or failure to act. The state-created danger doctrine is a recognized exception to the general rule and Collins, in concluding the government had no affirmative obligation to provide a safe workplace, appeared to apply the general rule. Accordingly, the Court found that it followed that the exceptions to the general rule, such as the state-created danger doctrine, should also apply in workplace safety cases.

Thus, the Court held that the state-created danger doctrine was a viable theory of due process liability under 42 U.S.C. § 1983, including in workplace environments. To prevail on such a claim, a plaintiff must show more than merely a failure to create or maintain a safe work environment—the plaintiff must first show that the state engaged in “affirmative conduct” that placed him or her in danger and second that the state actor acted with “deliberate indifference” to a “known or obvious danger.”

Assuming Plaintiffs’ evidence as true, the Court found that it satisfied both elements of a state-created danger claim. Pauluk’s transfer back to Shadow Lane in 2003 was affirmative conduct, given that he was clear that he did not want to return and was transferred back involuntarily. Second, the Court found that Defendants acted with deliberate indifference in exposing Pauluk to a known and obvious danger. There was evidence that the Defendants were aware of the long history of extensive mold problems at CCHD buildings, including the Shadow Lane facility, and that Defendants were on notice that there were potential health problems associated with mold exposure, since Pauluk protested his transfer on such grounds. As such, the Court found a reasonable jury could find that the Defendants acted with deliberate indifference toward the danger posted by toxic mold in Shadow Land to Pauluk’s health.

Although the Court found that Defendants’ violated a constitutional right, satisfying the first prong of a qualified immunity inquiry, it found that the Defendants were entitled to qualified immunity because the due process right was not clearly established at the time of the violation. Prior cases had not found due process violations with similar facts, and therefore the Court could not conclude that the Defendants were on notice that there conduct was unlawful under clearly established law. Therefore, Defendants were entitled to qualified immunity.

INDEMNIFICATION OF PUBLIC EMPLOYEES

California Government Code section 825 and other state indemnification statutes did not subject an excessive force judgment against city police officers to adjustment in the city’s bankruptcy proceeding.

Deocampo v. Potts, 2016 U.S. App. LEXIS 16512 (9th Cir. Sept. 8, 2016)

Facts: In March 2003, City of Vallejo Police Department (“VPD”) officers had a violent encounter with Jason Eugene Deocampo, Jesus Sebastian Grant, and Jaquezs Tyree Berry (“Plaintiffs”). According to Plaintiffs, VPD officers stopped Berry and, without justification, kicked him and slammed him to the ground, causing him to hit his head on a fence. When Deocampo and Grant questioned the officers’ actions, the officers told them to go away.  As Deocampo complied and walked away, the officers followed him, shoved him, and beat him with their batons. The officers also pepper-sprayed and beat Grant. Plaintiffs were arrested and charged with resisting, delaying, and obstructing police. The criminal charges were ultimately dismissed.

In May 2006, Plaintiffs filed a lawsuit against the City of Vallejo, the VPD chief of police, and the officers, alleging excessive force and other constitutional claims under 42 U.S.C. § 1983, Monell v. New York Dep’t of Soc. Servs.[10] claims against the City and the chief of police, and various state law causes of action. In July 2007, the parties stipulated to dismissal of the Monell claims and dismissal of the City and the chief of police as defendants.

In May 2008, the City filed for Chapter 9 bankruptcy. One week later, Defendants filed a notice stating that the lawsuit was automatically stayed pursuant to 11 U.S.C. § 362, and the parties stipulated that the City’s bankruptcy filing triggered an automatic stay. A week after the case was stayed, Deocampo filed a proof of claim in the City’s pending bankruptcy proceedings. The officers did not file any proofs of claim in the bankruptcy proceedings, for anticipated indemnity costs, or otherwise, and the City’s bankruptcy court filings did not list the officers or any other employees as potential creditors on the basis of defense or indemnification obligations.

In the City’s amended plan with the bankruptcy court, the City anticipated that litigation claimants would recover about 20 to 30 percent of the value of claims below $500,000. The bankruptcy court confirmed the plan in November 2011.

In August 2012, the court lifted the stay on Plaintiffs’ lawsuit. A few weeks before the trial, the Vallejo City Attorney notified the officers that the City had undertaken their defense and would indemnify them for any damages. Following a jury trial, the jury found that the officers had unreasonably seized Deocampo by using excessive force during the course of the arrest and awarded Deocampo $50,000 in compensatory damages. In August 2013, the court entered judgment in accordance with the verdict and subsequently awarded Deocampo costs and attorneys’ fees.

The officers moved for relief from the judgment pursuant to Federal Rule of Civil Procedure 60(b),[11] arguing that the judgment and fee award were effectively claims against the City that were subject to adjustment under the City’s bankruptcy plan. The district court denied the motion, finding that because Deocampo sought and obtained relief against the officers in their personal, not official, capacities, the judgment was not discharged by the City’s bankruptcy. The officers appealed.

Held: The City’s bankruptcy plan did not adjust or discharge the judgment against the officers. In reaching its conclusion, the Ninth Circuit emphasized that the City, not the officers, declared bankruptcy, and the judgment was entered against the officers in their personal capacities. The officers, relying on California Government Code section 825,[12] argued that the judgment against them was brought within the domain of the bankruptcy plan. They argued that, by operation of law, the judgment was the City’s liability rather than their own. They also argued that, even if the judgment was deemed against them in their personal capacities, there was “such identity” between the City and the officers that adjustment of the judgment fell within the language or intent of the plan.

Addressing the officers’ first argument that the indemnification provisions of Government Code section 825 rendered the judgment a personal liability of the City, the Court concluded that the judgment was not a personal liability of the City’s. The Court explained that a “basic precept” of Section 1983 litigation is that a judgment against a government official in his personal capacity leads to imposition of liability against the individual defendant, not the entity that employs him or her. As such, a damages award against an officer in his or her personal capacity can only be executed against that officer’s personal assets. The Court explained that the indemnification obligation of Government Code section 825 does not render a personal capacity lawsuit against an official one against the state, but instead, the statute creates a purely internal arrangement between the government and its officers. So, if a plaintiff prevails on the merits of a case, a court would be ordering the official, not the government, to pay damages. If the official desires indemnification, that is between the official and the government.

The Court thus held that the indemnification statutes do not render a judgment or associated fee award against an indemnifiable municipal employee a liability of the municipal employer for purposes of adjusting or discharging the debts of a Chapter 9 debtor. As such, the judgment is the officers’ liability.

The Court next looked at the officers’ alternative argument that the indemnity statutes created such identity between the City’s interest and those of the officers that the judgment was actually against the City and subject to the bankruptcy plan. The Court concluded that because the Chapter 9 plan did not include an express provision for the discharge of claims against indemnifiable employees, the judgment against the officers remained undischarged, unadjusted, and untouched by the City’s bankruptcy.

Finally, the Court explained that the consequences of its decision fell on the City. It explained that, pursuant to California law, the event that gave rise to the officers’ claim for indemnification was the City’s provision of a defense for the officers, not the injuries allegedly inflicted by the officers or the filing of Plaintiffs’ lawsuit. The City undertook defense of the officers in July 2013, which was after the court confirmed the bankruptcy plan. Therefore, the indemnification obligation was a post-petition debt that was not subject to adjustment, discharge, or the bankruptcy injunction, and the City was required to indemnify the officers.

QUALIFIED IMMUNITY

Officer not entitled to qualified immunity where officer fatally shot suspect that was unarmed and presented no immediate threat during investigatory stop.

  1. K. H. v. City of Tustin, 2016 U.S. App. LEXIS 16961 (9th Cir. Sept. 16, 2016

Facts: In December 2011, Tustin Police officers Osvaldo Villarreal and Brian Miali responded to a call relating to a domestic dispute. A woman had called 911 and reported that her ex-boyfriend, Benny Herrera, had stolen her phone by grabbing it out of her hand. She said Herrera did not carry any weapons. The dispatcher conveyed the call to the officers, including reporting that Herrera was not known to carry weapons. She also reported that Herrera had a gang affiliation, there was a traffic-related warrant for his arrest, and he was on parole for a drug possession crime. Officer Miali was the first to spot Herrera, who was on foot walking down the road. When Miali approached Herrera, he turned on his red lights. Herrera put his hand in his right pocket and fled backward away from Miali. Miali pursued Herrera from his vehicle with his gun drawn, and ordered Herrera to “get down” three times.

Villarreal, who had been traveling behind Miali, drove his patrol car beside Herrera and forward of Miali’s in an attempt to cut off Herrera’s avenue of escape. When he was beside Herrera, he immediately ordered that Herrera remove his hand from his pocket. As Herrera removed his hand from his pocket, Villarreal, without warning, fired two shots, killing Herrera. Villarreal’s dashboard camera showed that the command to remove his hand from his pockets and shots were separated by less than a second. The total elapsed time from when Miali first encountered Herrera to when Villarreal shot him was less than a minute.

Herrera’s relatives filed suit under 42 U.S.C. § 1983 against Villarreal and the City of Tustin, alleging that Villarreal used excessive force against Herrera. Villarreal moved for summary judgment on the ground of qualified immunity, and the district court denied his motion. Villarreal brought an interlocutory appeal.

Held: Villarreal was not entitled to qualified immunity. In reaching its conclusion, the Ninth Circuit noted that, to determine whether Villarreal was entitled to summary judgment based on qualified immunity, it asked two questions. First, viewing the evidence in the light most favorable to the plaintiffs, whether Villarreal used excessive force in violation of the Fourth Amendment. Second, if it found Villarreal used excessive force, did he violate a clearly established right?

The Court explained that excessive force claims are analyzed under the Fourth Amendment, looking at whether an officer’s actions are objectively reasonable in light of the facts and circumstances confronting him or her. Such determination is made by balancing the nature and quality of the intrusion on the individual’s Fourth Amendment interests against the importance of the governmental interests alleged to justify the intrusion. Courts look at the totality of the circumstances, focusing on factors such as the severity of the crime at issue, whether the suspect poses an immediate threat to the safety of the officers or others, and whether the suspect actively resists arrest or attempts to evade arrest by flight. The “most important factor,” the Court explained, is whether the suspect poses an immediate threat to the safety of the officers or others. Deadly force is only permissible if the suspect threatens the officer with a weapon or there is probable cause to believe the suspect has committed a crime involving the infliction or threatened infliction of serious physical harm.

The Court concluded that the government’s interests were insufficient to justify the use of deadly force. It noted that the “crime at issue” was a domestic dispute that had ended before the police arrived, and that Herrera had left the apartment where the dispute had taken place and was some distance away when the police encountered him. Second, the Court found that Herrera did not pose an immediate threat to the safety of the officers or others, noting, again, that the dispute was over and he was some distance away from the apartment of his ex-girlfriend, posing no current threat to her safety, and that he had no weapon. The Court found that Villarreal could not reasonably have believed that Herrera posed a threat, since they had little, if any, reason to believe he was armed since the dispatcher told them he was not known to carry weapons, and since Herrera was not displaying a weapon during their encounter. Finally, the Court noted that Villarreal escalated to deadly force very quickly, since less than a second elapsed between his command to Herrera to remove his hand from his pocket and when Villarreal shot him, without warning him that he would shoot him or waiting to see if Herrera had anything in his hand.

Therefore, the Court concluded that, based on the totality of the circumstances, balancing the interests of both Herrera and the government, and viewing the evidence in the light most favorable to the plaintiffs, Villarreal’s fatal shooting of Herrera violated the Fourth Amendment.

The Court further found that Villarreal violated clearly established law in using deadly force on Herrera. Quoting Tennessee v. Garner,[13] it noted that it has “long been clear that ‘[a] police officer may not seize an unarmed, nondangerous suspect by shooting him dead,’” which was exactly what Villarreal. The Court affirmed the denial of qualified immunity.

[1] 496 U.S. 325 (1990).

[2] 134 S. Ct. 1683 (2014).

[3] 638 F.3d 1226 (9th Cir. 2011).

[4] 18 U.S.C. §§ 2510 et seq.

[5] 112 F.3d 849 (7th Cir. 1997).

[6] 21 U.S.C. §812

[7] 391 U.S. 367 (1968).

[8] 29 U.S.C. §§ 2601 et seq.

[9] 503 U.S. 115 (1992) (holding that the Constitution does not guarantee a right to a safe workplace).

[10] 436 U.S. 658 (1978).

[11] “(b) Grounds for Relief from a Final Judgment, Order, or Proceeding. On motion and just terms, the court may relieve a party or its legal representative from a final judgment, order, or proceeding for the following reasons:

(1) mistake, inadvertence, surprise, or excusable neglect;

(2) newly discovered evidence that, with reasonable diligence, could not have been discovered in time to move for a new trial under Rule 59(b);

(3) fraud (whether previously called intrinsic or extrinsic), misrepresentation, or misconduct by an opposing party;

(4) the judgment is void;

(5) the judgment has been satisfied, released, or discharged; it is based on an earlier judgment that has been reversed or vacated; or applying it prospectively is no longer equitable; or

(6) any other reason that justifies relief.”

[12] “(a)  Except as otherwise provided in this section, if an employee or former employee of a public entity requests the public entity to defend him or her against any claim or action against him or her for an injury arising out of an act or omission occurring within the scope of his or her employment as an employee of the public entity and the request is made in writing not less than 10 days before the day of trial, and the employee or former employee reasonably cooperates in good faith in the defense of the claim or action, the public entity shall pay any judgment based thereon or any compromise or settlement of the claim or action to which the public entity has agreed.

If the public entity conducts the defense of an employee or former employee against any claim or action with his or her reasonable good-faith cooperation, the public entity shall pay any judgment based thereon or any compromise or settlement of the claim or action to which the public entity has agreed. However, where the public entity conducted the defense pursuant to an agreement with the employee or former employee reserving the rights of the public entity not to pay the judgment, compromise, or settlement until it is established that the injury arose out of an act or omission occurring within the scope of his or her employment as an employee of the public entity, the public entity is required to pay the judgment, compromise, or settlement only if it is established that the injury arose out of an act or omission occurring in the scope of his or her employment as an employee of the public entity.

Nothing in this section authorizes a public entity to pay that part of a claim or judgment that is for punitive or exemplary damages.”

[13] 471 U.S. 1 (1985).





Related Recent News