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

Sawyers v. Holder, 399 F.Appx. 313 (2010); Reversed: 132 S.Ct. 7 (2012)

Because the volume of immigration cases in the 9th Circuit is so heavy, and most cases fact intensive, we do not review them. But a recent case entitled Sawyers v. Holder illustrates the damage to the court system by the 9th Circuit deplorable record of reversals.  People forget that 9th Circuit cases reversed by the Supreme Court occur after the conclusion of years of litigation.  In the interim, all cases relying on 9th Circuit opinions as precedent continue to rely on the original decision.  When the Supreme Court reverses a 9th Circuit case years later, all its erroneously decided cases remain unaffected (although non citeable) on the books and a party escapes responsibility.

Sawyers illustrates this.  In 2005 the 9th Circuit sanctioned imputing the residence of the mother to the child for purposes of challenging deportation; Cuevas-Gaspar v. Gonzales, 430 F.3d 1013 (9th Cir. 2005).  In 2009 the 9th Circuit cited Cuevas-Gaspar as precedent in applying its rule to Mercado-Zazueta v. Holder, 580 F.3d 1102 (9th Cir. 2009).  And in Sawyers v. Holder, 399 F.Appx. 313 (2010) the 9th Circuit cited  these two cases again and approved the doctrine of imputing residence of the mother to the child in the context of a deportation proceeding.

In 2012  the Supreme Court decided  Holder v. Martinez Guttierrez,132 S.Ct. 71 (2012)  reversing the 9th Circuit decision and its holding in Sawyers v. Holder. During the 7 year interim between 2005 and 2012 the BIA in the 9th Circuit was governed by three cases wrongfully decided. The 9th Circuit erroneous “imputation” rule applied to anyone within that category for 7 years.  On remand from the Supreme Court in Sawyers v. Holder the 9th Circuit admitted its two earlier cases were also wrongly decided; Sawyers v. Holder, 2012 WL2507513 (C.A. 9).

Extrapolate that rationale to Supreme Court death penalty cases reversing the 9th Circuit. While a 9th Circuit case and its decision slowly winds its way through the court system, the court cites it as precedent to other cases in later opinions. /Assume the Supreme Court ultimately reverses the original decision in a later case that, in effect, reverses a trail of 9th Circuit cases. All these cases were wrongly decided but unreviewable now.  In the current term of the Supreme Court the Justices reversed three death penalty cases wrongly decided by the 9th Circuit.  Aside from all the delay incurred, these cases were precedent for other cases wrongly decided by the 9th Circuit.