Qualified Immunity in Gang Murder (Torres), 548 F.3d 1197 (9th Cir. 2008)

Probable Cause and Qualified Immunity: 9/22/2008 Torres v. City of Los Angeles, 540 F.3d 1031 (9th Cir. 2008); withdrawn Note: on Nov. 13, without any explanation, the court withdrew its previous decision (reported below) and wrote a decision sustantially the same; Torres v. City of Los Angeles, 548 F.3d 1197 (9th Cir. 2008). Gang killings are indisputably the most difficult cases to prosecute. Witness intimidation is rife and witnesses lack credibility or are offered immunity. A witness in Torres v. City of Los Angeles, the girlfriend of a man who killed two other gang members, identified Torres as a passenger in the car when the driver (subsequently arrested) fired the shots. Admittedly the identification of Torres was imperfect but the Ninth Circuit ignored the fact that her boyfriend shot two men during a car chase. A passenger riding in a moving car with a driver involved in a shooting cannot describe all the details. Police arrested Torres based on the witness’s incomplete identification and with information he was a gang member who had flashed gang signals to the occupants of the other car. After reviewing the evidence, the panel found the officers lacked probable cause. The evidence of Torres’ culpability is a close question but enough to at least arrest him. Not in the Ninth Circuit. And this panel denied the officers qualified immunity, despite the fact the trial judge ordered all officers dismissed from the case. Note: One of the cases cited by the Ninth Circuit panel to support their conclusion the officers lacked probable cause to arrest Torres was Devenpeck v. Alford, 543 U.S. 146 (2004)-a Ninth Circuit case reversed by the Supreme Court.

Accomplice Liability: Waddington v. Sarausad, 503 F.3d 1031 (9th Cir. 2008)

Note: Supreme Court subsequently reverses Ninth Circuit: 129 S.Ct. 823 (2009) Despite Congressional efforts imposed by the Antiterrorism & Effective Death Penalty Act (AEDPA; U.S.C.A. 2254 d (1) (2) to reign in federal Circuit Courts of Appeal on petitions for habeas corpus, the Ninth Circuit continues to evade statutory limitations. In addition, the court cannot agree on which section of the Act applies to specific fact situations. Defendant Sarausad was charged as an accomplice to murder and convicted by the jury. On direct appeal from Sarausad’s conviction, the Washington Supreme Court clarified a jury instruction on accomplice liability and affirmed. Sarasuad’s state post conviction petition was denied, but the U.S. District Court granted his federal petition. On appeal, the legal issue in the Ninth Circuit consisted of the allegedly “ambiguous” jury instruction on accomplice liability in the murder charge. A Ninth Circuit panel initially wrote Waddington v. Sarasuad in 479 F.3d 671 (9th Cir. 2007) reversing the state court conviction but the court granted an en banc hearing. En banc, the court affirmed its original opinion with several judges dissenting; Waddington v. Sarausad 503 F.3d 833 (9th Cir. 2007). The Supreme Court granted cert. and will undoubtedly reverse the Ninth Circuit; 128 S.Ct. 1650 (2008). Again.