Mullenix v. Luna, 136 S.Ct. 305 (2015)

(Not a 9th Circuit case but relevant thereto)

When 9th Circuit judges read this Supreme Court  case, their despair will be overwhelming. No longer can the 9th Circuit, who know nothing about police street work, continue their anti law enforcement record on summary judgments in civil rights cases.

In a per curiam opinion the Justices reversed the 5th Circuit and upheld the doctrine of qualified immunity for police officers. In the all too common police chase, the officers pursued a car at 80 to 100 miles an hour as one Leuja, a fugitive from an arrest warrant and intoxicated,  raced through the streets.  On the police radio he threatened to shoot the officers if they did not terminate the chase.

In an attempt to intercept the driver with spikes, the officers laid down a set on the road they knew the driver would travel. As the car neared the spikes, one of the officers decided to shoot at the car engine in an attempt to stop it.  He drove to an overpass, and when the driver drove underneath, the officer fired his rifle. The car hit the spikes, rolled over, and killed  the driver.  At the  trial, the estate representative alleged use of police excessive force. The court denied the officer qualified immunity on his motion for summary judgment.  The 5th Circuit affirmed but the Supreme Court reversed.

The Supreme Court conceded these cases are difficult but all depend on the reasonableness of the officers’  conduct.  Citing Brosseau v. Naugen, 543 U.S. 335 ((2004), a case reversing the 9th Circuit, the Justices held the trial court must consider  all the facts and the reasonableness of the officer’s conduct.  This Court  knows spikes are not always effective and often place the officers in a dangerous position.  Given all the facts, the officer at the overpass selected an alternative to eliminate the chase and protect the other officers. Immunity granted.

City & County of San Francisco, 135 S.Ct. 1765 (2015) Reversing 9th Circuit

The Supreme Court reverses the 9th Circuit again.  In addition, the justices criticize (and indirectly reverse) three other 9th Circuit previous decisions.

The director of a group home occupied by residents suffering from mental illness summoned officers to assist  him in moving resident Sheehan to another facility due to her threats. Upon arrival of police, the director opened the door to her room and the officers entered.  Sheehan demanded the officers get out, brandished a knife, threatened to kill them, and closed the door. The officers, concerned that others may be in the room, or Sheehan would hurt herself, or try to flee on the fire escape, decided to enter the room again. Uncertain of their options, the officers pushed open the door and Sheehan repeated her conduct, threatened them wielding a knife, and started toward one of the officers who pepper sprayed her in defense.

The spray proved ineffective and Sheehan approached the officer with knife in hand.  The officer fired two shot at her, but Sheehan did not fall.  The officer fired again.  At that point, other officers arrived and resolved the situation. Sheehan survived.

Sheehan sued the City & County and the officers under American Disabilities Act, 42 U.S. 12101 and under 42 U.S.C. 1983, the former on grounds the officers violated the accommodation of disabilities described by the Act and the latter statute under the Constitutional guise of the Fourth Amendment. The district court dismissed the case; the 9th Circuit reversed.

The City and the officers both asserted qualified immunity, and the 9th Circuit reversed by invoking non compliance with the Fourth Amendment. Here is the language of the Supreme Court in reversing:

“To begin, nothing in our cases suggests the constitutional rule applied by the Ninth Circuit. The Ninth Circuit focused on Graham v. Connor, 490 U.S. 386, 109 S.Ct. 1865, 104 L.Ed.2d 443 (1989), but Graham holds only that the “ ‘objective reasonableness’ ” test applies to excessive-force claims under the Fourth Amendment. See id., at 388, 109 S.Ct. 1865. That is far too general a proposition to control this case. We have repeatedly told courts—and the Ninth Circuit in particular—not to define clearly established law at a high level of generality.” al–Kidd, supra, at ––––, 131 S.Ct., at 2084 (citation omitted); cf. Lopez v. Smith, 574 U.S. ––––, ––––, 135 S.Ct. 1, 3–4, 190 L.Ed.2d 1 (2014) (per curiam ). Qualified immunity is no immunity at all if “clearly established” law can simply be defined as the right to be free from unreasonable searches and seizures.
Even a cursory glance at the facts of Graham confirms just how different that case is from this one. That case did not involve a dangerous, obviously unstable person making threats, much less was there a weapon involved. There is a world of difference between needlessly withholding sugar from an innocent person who is suffering from an insulin reaction, see Graham, supra, at 388–389, 109 S.Ct. 1865, and responding to the perilous situation Reynolds and Holder confronted. Graham is a nonstarter.
Moving beyond Graham, the Ninth Circuit also turned to two of its own cases. But even if ‘a controlling circuit precedent could constitute clearly established federal law in these circumstances,’ Carroll v. Carman, 574 U.S. ––––, ––––, 135 S.Ct. 348, 350, 190 L.Ed.2d 311 (2014) (per curiam ), it does not do so here.”
The Supreme Court continued by listing cases the 9th Circuit  had decided in its opinion reversing the district court and criticized them all as inapplicable.
Because of jurisdictional questions the Supreme Court did not address the officer’s liability under the ADA.  But the remand and Supreme Court opinion clearly address the error of the 9th Circuit in denying quaififed immunity to the officers regardless of statutory language.  The 9th Circuit, as the Supreme Court notes, has repeatedly been advised on application of Fourth Amendment jurisprudence and the difference in analysis under qualified immunity.
That any court would disallow immunity to the officers when threatened by an unstable mental patient armed with a weapon is incredulous.  The Supreme Court thought so too.

Moss v. United States Secret Service, 711 F.3d 941 (9th Cir. 2013)

 A public official must violate a Constitutional right “clearly established” by the Supreme Court in order for a government agent to lose immunity from litigation. The Justices have insisted a high level of generality of the term “clearly established” Supreme Court law is unacceptable in 42 U.S.C. 1983 or Bivens actions; Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics, 403 U.S. 388 (1971).  The Supreme Court has frequently chastised the rationale of decisions on immunity written by 9th Circuit judges, and in an earlier case decided in 2011 the Justices said this: “We have repeatedly told trial courts-and the Ninth Circuit in particular-not to apply ‘clearly established law’ in qualified immunity cases at a high level of generality;” al Kidd v. U.S., 131 S,Ct. 2074 (2011). Rephrased, interpret the rule narrowly. 

 During the 2004 election President Bush was campaigning in an Oregon town. Two groups followed the motorcade down the street. One group supported Bush and the other opposed him.  The Secret Service directed security of the President and ordered city police to make several traffic arrangements on the streets. At various points during the movment of the Presidential car it was necessary for police to adjust the location of the two groups. No one was arrested or injured.

The anti Bush crowd subsequently filed a lawsuit against the U.S. Secret Service and their agents alleging a Bivens violation. This absurd case was dismissed by the U.S. District Court but the activists appealed to the 9th Circuit on First Amendment grounds their “speech” had been discriminated against.  Why? Because they were ordered to stay away from the motorcade at a distance further than the pro-Bush supporters.

The 9th Circuit invariably tries to “constitutionalize” conduct in order to foreclose Congress or the states from remedying their alleged mistakes. According to the 9th Circuit, this act of street location constituted “viewpoint discrimination,” a First Amendment doctrine prohibiting government officials from discriminating against public expression of viewpoints. Although the Moss case arose on the agent’s motion to dismiss the complaint, the 9th Circuit decision on the pleadings is exactly what the Supreme Court condemned. 

The complaint alleged subjective intent of the Secret Service to discriminate. The  pleadings contained no objective facts as required by al-Kidd and contained legal conclusions- the type condemned by the Supreme Court. According to the complaint, the anti Bush crowd was ordered further away from the President than the pro Bush crowd but no one suppressed the anti Bush crowd “speech.”  The task of the Secret Service is protecting the President, not measuring distance between crowds. 

This case caused numerous judges to dissent.  Needless to say, the idea of disallowing immunity to agents trying to manage an acrimonious crowd consistent with Presidential security ignores reality.    


Nelson v. City of Davis, 685 F.3d 867 (9th Cir. 2012)

The Supreme Court set another record of 9th Circuit reversals.  Seventeen out of twenty four cases reversed, eight of which were per curiam reversals.  Undaunted, a panel of 9th Circuit judges wrote another decision ready for rehearing en banc or cert. This time on qualified immunity.

Several years ago a 9th Circuit panel ruled in a case involving officers pursuing a car in flight.  During the chase, the passenger either fell out or was pushed out of the car, and the officers could not avoid hitting him.  The victim sued alleging a Fourth Amendment violation, and the 9th Circuit panel denied qualified immunity to the officers. Reversed.  City of Sacramento v. Lewis, 523 U.S. 833  (1998).  In a blistering  reversal the Supreme Court reminded the 9th Circuit of the difference between negligence and Constitutional violations.
Nelson is another example of the inability of the 9th Circuit to make this distinction.

 In Nelson, the campus police force at  U.C Davis confronted a crowd of approximately 1000 students whose presence completely blocked the streets.  When the officers arrived, the student threw bottles at the police car and refused to disperse despite commands to do so.  According to the Complaint, the students could not hear the commands.  Additional police arrived in an attempt to disperse the crowd  and the  apartment owner of an adjacent apartment complex requested dispersal also.

Apparently no one tried to leave.  Police fired pepperballs at the walls of an  apartment. These pepperballs  explode and spray pepper on individuals.  One of the pellets struck Nelson in the eye.  He sued for violation of the Fourth Amendment, i.e., an unreasonable seizure. The 9th Circuit panel denied immunity to the officers on this ground.

This case completely undermines Fourth Amendment anlysis.  According to the 9th Circuit panel,  Nelson was “seized” unlawfully by standing in front of a wall doing nothing when hit by the ball.  There is no “seizure” here as compared to in an investigation of a criminal case.  It is nothing  more than ordinary negligence.  And in any event, what are the officers supposed to do to disperse thousands of people blocking the streets and trespassing on apartment property?  Undoubtedly students were yelling and screaming, and who can hear commands to disperse?  No one said they did, according to the Complaint. 

Police invoke whatever strategy possible to  avoid violence-even if others are using violence against you-and Tasers are not used in a crowd situation.  The objective is to move lots of people, not just one of two.  Police cannot start arresting people with a limited number of officers.  The pepperball shot against a wall creates an atmosphere of discomfort. Period. No injury.  Unfortunately, in the crowd and noise, one of the shots hit Nelson.  Negligence if anything.

Since this is an interlocutory appeal from the district court, and the plaintiff’s testimony must be honored, the Supreme Court may conclude “just another fact intensive case.”  Or, it may conclude this is another attempt to stretch negligence into a Constitutional issue and reverse the 9th Circuit. Again.

Filarsky v. Delia; Messerschmidt v. Millender; minecci v. pollard

Filarsky v. Delia, 132 S.Ct. 1657 (2012)

The 9th Circuit notches another reversal on the issue of qualified immunity.

The City of Rialto retained an experienced and qualified lawyer to assist in the investigaton of an employee suspected of falsifying his work injury record and allegedly was constructing a house.  After unuccessful attempts by City employees to convince the employee to confirm his disability, the attorney asked the employee to bring out building materials he had purchased for his house. The employee retained counsel who refused cooperation, threatened litigation, and subsequently sued City employees and the private lawyer for Fourth Amendment violations. The U.S. District Court held the attorney and City employees immune from litigation. The employee appealed.

The 9th Circuit on appeal from the district court decision held a private lawyer retained by a public agency, which employed no one with the experience to investigate work fraud, did bit not qualify for immunity. Although the City employees could exercise immunity, the lawyer retained by the City could not.

The Supreme Court reviewed the doctrine of immunity extensively, and held the lawyer essentially did the work of a public employee in the absence of a trained person on the City staff.  Reversed.

Although not a breathtaking case, the Supreme Court discussion of immunity is an excellent summary of a  doctrine (soverign immunity) initiated as far back as the early days in the United States.  A 9-0 ruling.

See 9th Circuit on remand to the district court  (above, June 27, 2012)

Robinson v. Lehman, 128 S.Ct. 1219 (2008)

The 9th Circuit buried  Robinson v. Lehman in an unpublished opinion (Robinson v. Lehman, 228 Fed.Appx. 697), a Ninth Circuit panel reviewed a U.S. District Court ruling denying a motion for summary judgment filed by police officer defendant Robinson. Plaintiff [estate of Lehman] had alleged the officer unlawfully used lethal force against deceased, Joshua Lehman; 42 U.S.C.A.1983. The panel began its analysis with this quote from the Supreme Court in Tennessee v. Garner, 471 U.S. 1 (1985): The Fourth Amendment prohibits police from employing lethal force against a suspect who poses no immediate threat to the officer and no threat to others. From that quote the reader can predict the result of this case. As factually described below, the officer contended he was immune from civil liability despite causing the death of Lehman whom he had shot after culmination of a car chase. In denying the motion, the Ninth Circuit panel described deposition testimony to establish officer Robinson was not shielded from liability. The court selectively summarized unfavorable testimony elicited from other officers on the scene, but ignored qualifications in their answers to questions, and concluded no reason justified the use of deadly force. The court admitted police had pepper sprayed, tasered and partially subdued a recalcitrant Lehman who refused orders to exit his truck. According to one of the officers at the scene, negotiations were in progress. The court: [T]he officer. . . shot and killed Lehman as he sat in his car, with all the tires shot out, surrounded by at least ten armed police officers and numerous police vehicles. Not a word about Lehmans prior conduct warranting justification for police presence at the scene. The reader wonders why the tires were shot out, Lehman alone in a vehicle surrounded by ten armed police officers and numerous police vehicles. That a pepper sprayed and tasered Lehman was partially subdued, is not only hyperbole-if not a misstatement-what does that phrase mean when Lehman refused to exit his truck upon orders from police? How do you negotiate with the driver of a vehicle who refuses to exit his vehicle? How do you know if he is armed? In contrast, here is a truncated summary of other police testimony, completely ignored by the panel, as paraphrased by the State of Nevada in its appeal of the Ninth Circuit decision to the Supreme Court: Earlier that day, sheriffs deputies on patrol had encountered Lehman. Without recounting the details, Lehman repeatedly rammed their vehicle, disabling it, and fled in his pick-up truck. One deputy fired shots into all four tires but Lehman escaped. During a car chase by other officers, Lehman continued to drive his vehicle on deflated tires. Officers unsuccessfully attempted to intercept his vehicle by initiating a spin maneuver with their patrol car, but Lehman never stopped until forced into oncoming traffic. Officers broke a window on Lehman’s car and fired pepper spray and taser inside but he refused to exit the vehicle. Officer Robinson arrived at the scene in response to a radio call, saw Lehman briefly emerge from his vehicle, engage in several chopping motions with a knife directed toward other officers, and heard police issuing orders. Vehicular traffic was backed up for miles and drivers stopped their cars to observe the scene. Robinson mistakenly believed Lehman had fired shots at officers (originally, deputy Sheriffs had fired shots) but he knew enough to reasonably conclude Lehman was involved in the earlier event with sheriffs deputies. Despite the presence of several police vehicles, Robinson could see Lehman had an escape route along the highway in the direction toward officers standing in his path. Robinson saw Lehman look around as though assessing whether he could hit the officers. Although Robinson did not know their precise location from his vantage point, he believed additional officers had arrived and were concealed from his view behind Lehman’s truck. Lehman accelerated his vehicle toward the officers, compelling one officer to jump aside to avoid being crushed. In an attempt to protect nearby officers from injury by the moving vehicle, Robinson fired at Lehman. Because of crossfire issues, Robinson believed he was the only person in a position to fire and that shooting Lehman was the only way to stop him. A videotape illustrated this version of the facts. This testimony, summarized by the State in its petition for review to the Supreme Court obviously differs significantly from the description of the events written by the Ninth Circuit panel. The Ninth Circuit decision concedes that police officers must make split second decisions in circumstances that are tense, uncertain and rapidly evolving. In the opinion of the panel, the Lehman confrontation apparently did not involve any of those conditions. In their view, the suspect pose[d] no immediate threat to the officer and no threat to others; Tennessee v. Garner. In its gratuitous concession to confer qualified immunity on police who do confront tense, uncertain and rapidly evolving circumstances, the panel cites another one of its cases refusing to permit the defense of qualified immunity when an officer shot the driver of a slow-moving car because . . . he [the officer] could avoid being injured by simply stepping aside; Acosta v. San Francisco, 83 F.3d 1143 (9th Cir. 1996). That naivete speaks for itself. Vehicles do accelerate. The obvious argument in the Robinson case is to let the jury decide the facts, but apparently the Supreme Court carefully read the States petition in deciding to review the Ninth Circuit decision and preliminarily agreed with the State of Nevada: Petition for hearing granted; Robinson v. Lehman, 2008 WL 423512; Ninth Circuit decision vacated and the panel ordered to reconsider its decision in light of the previous Supreme Court decision in Scott v. Harris, 127 S.Ct. 1769 (2007). In fairness to the Ninth Circuit, the panel wrote their unpublished opinion on April 16, 2007 and lacked the benefit of the Scott decision written by the Supreme Court on April 30, 2007. The Supreme Court decided Scott v. Harris after viewing the videotape of a horrific car chase. The Justices compared the testimony of the driver (who subsequently sued the police) with the tape. The Court held a trial court can grant a motion for summary judgment sustaining qualified immunity for officers despite disputed facts if one version is so inconceivable no jury could find against them. The scenario in Scott is strikingly comparable to Robinson v. Lehman. The Supreme Court ordered the Ninth Circuit panel to reconsider their decision. The Justices could have simply reversed the Ninth Circuit panel and granted the motion for summary judgment but exercised their discretion to allow reconsideration. The panel will likely reach the same conclusion as in their original decision. For a more sensible decision on the subject of qualified immunity, see, Bingue v. Prunchak, 512 F.3d 116 9 (9th Cir.2008). 3/13/2008