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