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.

Riley v. McDaniel, 786 F.3d 719 (9th Cir. 2015)

The author of this three judge panel of the 9th Circuit who has never affirmed a death penalty case (or even tried one) added another unbelievable habeas corpus opinion of a murder committed in the presence of a third person who testified in a state court trial.  The evidence, overwhelming and hardly “factually innocent,” established the petitioner shot  the victim with a shotgun sitting a few feet away from him. The incredibly unanimous panel  is nothing  more than an appeal from state court records, defies Supreme Court precedent, and a habeas corpus decision in name only.

According to the panel, petitioner’s failure to conform to the mandatory requirement of AEDPA exhaustion of state remedies was unnecessary because the 9th Circuit had previously decided the Nevada procedural statute  had not been regularly applied.  Under that rationale, no state court had decided the merits, and the panel could decide de novo-without any Supreme Court precedent or application of AEDPA.

The murder statute in Nevada requires “willfulness, premeditation, and deliberation.” Although the state court judge instructed the jury on premeditation, he failed to include the definition of “deliberation” in jury instructions. The jurors found the petitioner guilty of robbery and murder, voted the death penalty, and the Nevada Supreme Court affirmed on appeal, holding the omission harmless.

The panel on habeas launched into a  “lawyerly parsing”  of words [as the Supreme Court said in a previously reversed 9th Circuit decision on jury instructions], and concluded despite the obvious  proof of guilt the jury might have considered the petitioner’s emotional and high state of emotion lacked deliberation before he shot the victim.  The district court agreed on the “deliberation” issue but also held the failure harmless.   How many jurors can distinguish between premeditation and deliberation, particularly in the fact pattern of this crime? This case confirms the verbal manipulation applied by this judge and others on the 9th Circuit.

The Riley case was decided without the benefit of Woods v. Donald, 133 S.Ct. 1372 (2015) arguably ending any further decisions by the 9th Circuit on habeas corpus. If Riley v. McDaniel is not reheard, the case is an absolute guarantee of reversal in the Supreme Court.  Again. But the author of Riley v. McDaniel has read Woods. This is what he said in a footnote . . . noting “counsel  was ‘egregiously deficient ‘ due in part to seriously inadequate public defense infrastructure in Clark County [Nevada] some quarter of a century ago.”  This sarcastic and irrelevant statement confirms that the author has read Woods and prepares for more absurd and unjust decisions. Hopefully, this is his last habeas corpus case.             Continue reading