The Ninth Circuit consists of a variety of judges, the majority of whom are classified as “liberals.” The meaning of the word varies contingent on the subject matter, and in reading enough of their decisions you will note the high degree of reversals of state court cases in federal habeas decisions. In most cases the conviction penalty is murder. In one case a judge dissents and explains that the failure of the death penalty is attributable to philosophic differences of Ninth Circuit judges reversing state court judges in habeas corpus decisions.

In Perkins, however, the charge is child molestation, and the split among the three judge Ninth Circuit panel illustrates the distinction of philosophy although the case is more an academic disagreement in a search warrant case. The dissenting judge particularly notes the opinion of the trial judge who sensed credibility of the officer who testified in lieu of a dry record read by an appellate court.

Canadian officials detained the defendant while he crossed the Canadian border, and his car search revealed a photograph of a young women whom Canadian officials concluded was not pornographic under Canadian law. American border officials disagreed, arrested Perkins, and obtained a search warrant for his house, The search revealed another questionable photo. A search of Perkins’ records unearthed a conviction of child molestation twenty years ago.

In an American federal trial court, Perkins moved to suppress the photographic evidence and objected to the search warrant. Perkins argued the American official misled the court for failing to include the Canadian opinion in the warrant, and failed showing the photos to the judge in applying for the warrant. The Ninth Circuit panel majority held these two errors invalidated the warrant.

American courts near the border had accepted the expertise of border officers in pornography, and the court or jury would see the photos to decide the case. The absence of including the photos of Canadian officer’s opinion is irrelevant. The dissenting judge expressed the objection more fully.

Congress originally attempted to reduce the constant interference of the Ninth Circuit in state court convictions, (AEDPA), and the U.S. Supreme Court criticized the Ninth Circuit for applying legal error to these cases when the object of federal habeas corpus is to determine state court injustice. The Ninth Circuit has never used this problem. Congress must intervene.

A well written case on the Fourth Amendment. Although the Fourth Amendment is in the Bill of Rights, the Supreme Court has held it is not a constitutional right nor a personal right. The purpose of the exclusionary rule is to protect the right by excluding evidence in criminal cases lacking probable cause to arrest or search and only to avoid extreme police misconduct.  Evidence of exclusion in a criminal case is not excluded in civil cases; U.S.C. 1983.

Note: the Supreme Court has finally realized the cost of the exclusionary rule.  The only person who is protected is the criminal who possesses contraband, stolen property, weapons or drugs. When the judge rules the officers violated the Fourth Amendment.  the only person whose rights are violated is the criminal. Exclusion of evidence causes the loss of the prosecution case.

In a case that had “reversal” written all over it, the Supreme Court reversed the 9th Circuit (again) in a brief per curiam opinion. The facts are written in the 9th Circuit opinion on p.2 of the blog (Sims v. Stanton), but briefly: at 1:00 a.m. an officer responded to a reported disturbance at a location in a gang area.  When he saw three men walking down the street, two quickly walked away into a nearby house but one continued. The officer, presuming that man might be involved in the disturbance, ordered him to stop. The man refused, hurried toward a gated house, and entered the yard. The office chased him, crashed through the gate, and accidentally collided with a woman standing behind the gate. She sued the officer who filed qualified immunity.

The 9th Circuit refused the defense, contending the officer violated the “curtilage” and committed a Fourth Amendment violation. Aside from the silliness of the plaintiff in suing an officer who accidentally injured her in pursuit of a man, the 9th Circuit denied qualified immunity.  The Supreme Court, without commenting on the absurdity of this case and the wholly inapplicable rationale of invoking Fourth Amendment law, held that the officer in hot pursuit of a suspect under the facts of this case can enter the curtilage without a warrant for misdemeanors (P.C.148-refusing to comply with lawful order) as well as felonies and upheld the defense of qualified immunity.

Apparently if someone is injured by a law enforcement officer, acting in the course of his duties, the 9th Circuit will find civil damages without any consideration of conduct accidentally inflicted without any intent to injure someone and does not even qualify as negligence.  The officer was unaware of anyone standing in the yard behind the gate at 1:00 a.m. in the morning.  In fact, the officer’s conduct was not even negligence let alone a 1983 case.

The 9th Circuit holds an embarrassing record of refusing to find qualified immunity.  Several years ago the court refused qualified immunity to officers who were in a high speed chase of an automobile.  The passenger either fell out of the vehicle or was thrown out, and the officers were unable to stop in time to avoid striking him.  In a 1983 lawsuit by the estate of the passenger alleging violation of due process, the 9th Circuit refused qualified immunity to the officer.  Reversed in a scathing opinion by the Supreme Court; County of Sacramento v. Lewis, 523 U.S. 835 (1998). There are more cases.

N.B. Reversed: Stanton v. Sims, 2013 WL 5878007. See p.2

At the inception of Supreme Court jurisprudence and in the ensuing years the Justices have repeatedly stated the exclusionary rule in the Fourth Amendment is a judicial remedy to deter unlawful conduct by law enforcement officials.  The Ninth Circuit has never endorsed this rationale and attempts to stretch the Fourth  Amendment into unreality.

Foreclosed by the Supreme Court from reviewing state court decisions on search and seizure in the venerable case of Stone v. Powell, 428 U.S. 465 (1976) the Ninth Circuit uses 42 U.S.C. 1983 to in civil cases to evade limitations on its jurisdiction.  

In Sims v. Stanton a Ninth Circuit panel decided a case on Fourth Amendment grounds irrelevant to the rationale of the exclusionary rule intended to deter officer misconduct. Police officers responding to a radio call at 1:00 a.m. reporting a disturbance in a known gang related area observed three men walking in the street. The officers saw two of the men turn into a nearby apartment complex but the third man continued walking. Ordered by police to halt, he refused, fled without responding, and entered the grounds of a house through a closed gate. The officer in pursuit kicked the gate open but inadvertenly struck and injured a woman, Drendolyn Sims, standing behind the door. Sims, alleging her injuries, sued the officer on 42 U.S.C.1983 grounds. The U.S. District Court dismissed all federal and state claims. Sims appealed.

According to the Ninth Circuit panel, this accident to the woman violated the Fourth Amendment despite the fact no one was searched or arrested. Instead, the court held forced entry through the gate onto the grounds of a residence constituted a constitutional violation. The court first launched into a discussion of curtilage to legally qualify the gate and grounds protected by the Fourth Amendment; then discussed whether an emergency or exigency justified entry to the yard in the absence of a warrant; and finally, whether the officer was entitled to qualified immunity. Concluding this warrantless entry unjustified by any emergency or exigency, and denying qualified immunity, the majority panel concluded the officer had violated the Fourth Amendment.

None of the cases cited by the Ninth Circuit panel in support of its ruling remotely resemble the facts in the Sims case. The author of the Sims opinion cited Rayburn v. Ruff, 132 S.Ct. 987 @992 (2012), another Ninth Circuit case reversed by the Supreme Court. In Rayburn the Justices had approved a warrantless entry to a house – not the grounds – without a warrant.

The panel in Sims could not help but note that officers cannot forcibly enter a fenced yard in pursuit of a misdemeanant, as distinguished from a felon, who refused to obey an officer’s demand. Undoubtedly this legal distinction did not cross the officer’s mind. No evidence established the officers harassed, searched or arrested Sims, nor engaging in misconduct. The officers were responding to a radio call in a gang area and merely wanted to talk to a man in the vicinity who was walking with two other men on the street at 1:00 a.m. Presumably someone walking at that hour may have some information about the reported disturbance, and officers wanted to inquire. The man refused to stop and entered the gate to a house whose occupants, if any, were unknown to the officer. No member of the panel dissented in a case devoid of any legal constitutional consequence, and with only the possible exception of ordinary negligence.

Wrongful expansion of the Fourth Amendment is further illustrated in Lavan v City of Los Angeles, a case similar to the Ninth Circuit decision in Stone v. Powell disallowing enforcement of a city vagrancy ordinance. In Lavan, the Ninth Circuit again invalidated an ordinance prohibiting unattended personal property located on public walks. The City, in an effort to retain a semblance of order in a “skid row “neighborhood, posted orders informing everyone in the neighborhood of the ordinance and the days and time for its enforcement.

The tonnage of the property previously removed from sidewalks had been formidable, including human waste, vermin and used syringes in conjunction with clothes and other personal property. Under the ordinance, for any personal property subject to disposal, the owner could claim the contents in a designated facility at no cost. The carefully drafted ordinance attempted to provide pedestrians, motorists, and businesses from congestion, filth, disease and injury. No one was arrested; none was searched. Yet the Ninth Circuit 2-1 majority disallowed enforcement of the ordnance on ground it was a “seizure” of property. The court also worried about the loss of privacy.

This decision is a complete departure from the language and rationale of the Fourth Amendment and serves no deterrent on police officers. The ordinance attempts to balance the interests of unfortunate people, presumably homeless, with the interests of the public in safety and prevention of disease. No one denies the desolate conditions of skid row, and we deplore the of the conditions of its inhabitants, but this social problem is not criminal case, certainly not a search or seizure in the sense of the Fourth Amendment and its rationale.

Nothing parallels the decision in Fourth Amendment jurisprudence comparable to Melendres v. Arpaio, 2012 WL 4358727 (9th C.A.) Plaintiffs filed a class action and sought an injunction prohibiting officers from detaining or arresting Latinos without commission of a crime or probable cause to arrest and solely on the basis of race. In other words, every Latino could challenge his detention or arrest on grounds of his ethnicity. Because most detentions and arrests occur in cities and counties of a state, the federal court will now determine in every case of an arrested or detained Latino whether reasonable suspicion or commission of a crime or probable cause exists, or that race was the only factor.

Because of the heavy Latino population in Arizona, the case load of the district will be swamped with cases alleging a violation of the injunction, and the district court forced to determine whether every detention or arrest of a Latino was based on race. In every case the issue of detention or probable cause becomes secondary to resolution of the race issue and presumably res judicata to a state case filed in state court. This court decision will not only intrude on state sovereignty, but subject to appeal in the Ninth Circuit. The underlying state case will be stayed during the appeal. The Fourth Amendment was never intended to apply its language to this type of case. And the decision includes stopping motorists for traffic violations.

The Ninth Circuit only approved the “limited injunction” issued by the district court. It concluded the plaintiffs, who may never be detained or arrested, could experience a future arrest or detention subject to the injunction.. Using the injunctive power of a federal court to determine whether one of the plaintiffs will be detained or arrested in the future is not the basis for enjoining a future speculative injury. The facts alleged of potential injury violates the jurisdictional requirement for standing.

In a case so uncomplicated the Supreme Court issued a per curiam opinion reversing the 9th Circuit. Again.

A school superintendent called police and informed them a student had issued a death threat by firearm. Officers went to the student’s home and received no response after knocking on the door. They called on the phone and received no answer.  Moments later, a woman (the student’s mother) opened the door and the officers informed her they had received information about a threat and asked to talk to the student.  They asked her if any firearms were in the house and the woman ran inside.  Officers, unaware of her conduct, ran inside to assure their safety. No searches were conducted and no person mistreated.

As it turned out, the threat was only a rumor.  So the parents of the student sued for violation of Fourth Amendment rights.  Although the district court judge found the conduct of the officers reasonable, the 9th Circuit reversed. According to a 2-1 majority, the police conduct was unreasonable.  The dissenting judge criticised the majority for “sanitizing the facts.”

Apparently the 9th Circuit assumed the officers should just stand in the doorway and wait until the woman  either returned with a firearm or shot at them from a concealed location.  That, in  essence, is what the Supreme Court wrote.  Given all the threats and killing on school premises, the officers were concerned for the safety of the students.  Their conduct was perfectly reasonable under the circumstances.

Another case of 9th Circuit naivete. Only that court would allow this silly lawsuit to go forward.  The police responded to a complaint from a legitimate source.  Attempts to contact the inhabitants peacefully  by knocking on the door and using the telephone were unsuccessful.  A woman perfectly capable of answering the door or phone comes to the door, the officers explain their presence, ask for assurance that no firearms are on the premises, and the woman  runs inside the house without any explanation.  And this is what the Fourth Amendment prohibits? Ryburn is a perfect example of a court second guessing police responsibly during their job.

The 9th Circuit is destined to receive another record of reversals in the Supreme Court.

Appeal from denial of summary judgment denying qualified immunity for defendant police officers and a municipality.

At 1:30 a.m. a police officer driving southbound and stopped at a red light on a city street observed a vehicle northbound. The evidence is in dispute whether the car windows of the driver of the other car were tinted, but according to plaintiff the officer could see each other, and could follow “him with his eyes.” The officer U turned, activated his red lights, and followed plaintiff who made a right turn at the next traffic light, then immediately made a left turn  into a parking lot behind a burger stand, parked near a dumpster and turned off his lights.

According to the Ninth Circuit panel, plaintiff was a “designated driver.
  Obviously the officer did not know that.  And the panel noted the driver was an African American as was his passenger and the third occupant a Mexican American.  How the officer could see that at 1:30 a.m through tinted rear windows is not questioned by the panel. And if the driver was the “designated driver” the other occupants must be intoxicated.

Plaintiff testified traffic was light yet he was uncertain whether a police car exhibiting red lights was following him. At 1:30 a.m.

Does the conduct of the driver warrant investigation? Does driving into an unlit parking lot after two contradictory vehicular turns and extinguishing the car lights while hiding behind a dumpster sound innocent?

The panel launches into an extended legal analysis of the Fourth Amendment and conclude the officer lacked a basis to stop the vehicle or arrest anyone.  This case exemplifies the naivete of 9th Circuit panel members who have no experience in “street work” by police. Experience, intuition and conduct warrant investigation.  And the panel could not resist racial identification.

In suppor of its decision in Liberal the panel cites Rodis v. City of San Francisco, 558 F.3d 964 (9th Cir. 2009) and adds “cert. denied.”  The Rodis 9th Circuit opinion was originally reversed by the Supreme Court and remanded.   On remand the 9th Circuit panel wrote its decison in compliance with the Supreme Court order.  In Liberal, the panel sites Rodis and adds “cert. denied” ignoring the fact the Supreme Court reversed its original opinion.
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The principal of a high school contacted police and informed them one of the students (Vincent Huff) had threatened to “shoot up” the school, had been absent from school for two days, and many parents had kept their children at home. In talking with the principal, officers were unable to verify the information but decided to visit the home of the student. Upon arrival, one of the officers telephoned Mrs. Huff, identified himself and said he wanted to talk to her. She agreed, opened the door and came out with her son Vincent. Asked by the officers if any guns were in the house, she said she would get her husband and “went” into the house.
The officers, fearing she fled inside to obtain a weapon, entered the house and spoke to the husband for  approximately ten minutes. Satisfied the rumor was not credible, the officers left the house without arresting anyone and without searching.
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In response to a defense motion for summary judgment, the U.S. District Court found the conduct of the officers reasonable and no violation of the Fourth Amendment occurred .  On appeal, a 2-1 majority of the 9th Circuit panel reversed on grounds the entry was without probable cause, and no exigency occurred warranting entry into the house.

According to the majority, the entry without a warrant violated the Fourth Amendment and no exigency existed to justify an exception to the warrant requirement.  As the dissenting judge points out, the majority “sanitizes” the evidence.  The officer did not testify Mrs. Huff “went” into the house from the outside, she “ran” inside without explanation.  The dissent cites Brigham City v. Stuart, 547 U.S. 398 (2006) for the proposition that officers can enter a house without a warrant if based on “officer safety.”

What should the officers have done after hearing from a school principal that one of her students reportedly would “shoot up” the school?  Ignore the unverified information? And if someone did “shoot up” the school, who would be responsible for not investigating?

Considering all the student deaths by gunshot having occurred recently, the most reasonable option for police is questioning the student.  Officers remained outside the house talking to Mrs. Huff and made no entry until she fled inside.  The officers did not threaten her or engage in any conduct warranting flight. Unaware of her goal, the officers could stand outside and hope no one returned with a gun, or enter to prevent any danger. This is common sense and “reasonable” conduct the Fourth Amendment requires. 

The officers remained in the house only ten minutes, neither arrested nor searched anyone, and departed.  In the litigation, (this case arose on summary judgment) how much money should a jury give the plaintiffs?  This is the kind of frivolous litigation that should result in imposition of attorney fees on counsel who filed this case on evidence of nothing more than inconvenience to the plaintiffs.