CASE SUMMARIES

April  2008

EXCESSIVE FORCE NOT USED TO SUBDUE BIZARRE ACTING SUSPECT

Gregory v. County of Maui; Maui Police Department (2008) 523 F.3d 1103

Richard Gregory and a friend were guests in a music studio operated by Vincent Finazzo and Jason Fuqua in Lahaina, Maui, Hawaii.  Finazzo and Fuqua were playing music and working on new songs, and they eventually decided to leave the studio and asked Gregory to do the same.  Gregory, however, refused.  An exchange soon became heated, as Gregory took on an increasingly pugnacious tone and posture, telling Finazzo, "Don't make me hit you."  When Finazzo tried to call a friend of Gregory's to calm him down, Gregory threw Finazzo's cell phone to the ground and began to pace around the room, stating that "we're all going to hell" and that the devil was in the room.  When Finazzo made a final effort to coax Gregory to leave, Gregory shoved him into a door.

Fuqua called the police and Maui County Police Officers Garret Tihada, Nick Angell and Ed Among arrived and were informed that Gregory had hit Finazzo.  While Finazzo and Fuqua stood outside the studio, the officers went inside, where they saw Gregory holding a pen with its tip pointed at them.  The officers noted Gregory appeared to be "high strung, excitable and jumpy," speaking loudly and rapidly and informing the officers that he was a Christian and that God was with him.

The officers repeatedly asked Gregory to put down the pen, but Gregory refused each request.  After Gregory refused a third time, Officer Angell grabbed Gregory's right arm and attempted to swing Gregory's body around into a position where the pen would face away from the officers.  When Gregory resisted, Officers Angell and Among pinned Gregory to the ground and attempted to hold his arms, as Officer Tihada tried to hold down Gregory's back and neck, all the while telling him to relax and not to resist.  Officer Tihada was able to grab the pen and throw it away from Gregory's reach, but Gregory still struggled.  As the officers continued their attempt to subdue Gregory, he repeatedly shouted that he could not breathe, which Officer Tihada told him was impossible because he could talk.  While helping to control Gregory, Officer Tihada used a hold around Gregory's head and neck to restrain him, which the officers later insisted was not a choke hold.  The officers did not strike Gregory, nor did they draw their firearms.

The officers were finally able to handcuff Gregory, but when they sat him up, they discovered that he was not breathing.  Their efforts to resuscitate him failed, and Gregory was later pronounced dead from a heart attack.  An autopsy revealed that Gregory suffered from severe heart disease, and that Gregory was under the influence of marijuana at the time of the confrontation.  The doctor concluded that the marijuana use likely contributed to the heart attack and noted that there was no sign that Gregory was chocked or that choking contributed to his death.

Gregory's estate sued the officers and the County of Maui under 42 U.S.C. §1983, alleging that the officers used excessive force in violation of the Fourth Amendment, that the county ratified the officers' use of such force, and that the county failed to properly train them.  The estate also brought several state-law claims.  The officers moved for summary judgment on all claims, arguing that the use of force was reasonable, and that in any event such force was not the proximate cause of Gregory's death.

The district court granted summary judgment to the officers on all federal claims rejecting the estate's argument that the officers should have recognized that Gregory was in a state of excited delirium, and accordingly that they used excessive force in physically restraining him.  The District Court relied on the undisputed facts "that Gregory was trespassing and acting aggressively," that Gregory refused to drop the pen in his hand, and that the officers never drew their weapons or used pepper spray on Gregory, concluding that "[t]he use of force ... was proportionate and reasonable."

The United States Court of Appeals, Ninth Circuit, in affirming the District Court's holding, pointed out that in order for it to determine whether the force used by the officers was excessive under the Fourth Amendment, "we must assess whether it was objectively reasonable 'in light of the facts and circumstances confronting [the officers], without regard to their underlying intent or motivation.'" (Citation)

The Ninth Circuit noted that the officers had substantial grounds for believing that some degree of force was necessary in confronting Gregory.  Upon arriving at the scene, the officers were informed that Gregory had assaulted Finazzo and that he was possibly under the influence of drugs.  The Ninth Circuit also stated that it was undisputed that Gregory acted in a bizarre manner throughout the confrontation.  When the officers entered the studio, they saw Gregory holding a pen with its point facing toward them.  The Ninth Circuit opined that "[w]hile the pen is not always mightier than the sword, a properly wielded writing instrument may inflict lethal force." (Citation)

The Ninth Circuit noted that "the officers did not immediately engage in a physical confrontation with Gregory.  Rather, they first asked him to drop the pen.  Only after Gregory repeatedly and expressly refused to comply did they attempt to disarm him, and they only sought to restrain Gregory once he resisted.  There is no showing that the officers ever struck Gregory, or that they drew or used a weapon."

In conclusion, the Ninth Circuit stated that "... although the confrontation came to a tragic end, we must conclude that the officers did not use excessive force.  The severity of Gregory's trespass and of the threat he posed were not overwhelming, but we are satisfied that the force used by the officers was proportionate to both.  The Fourth Amendment does not require more."
(Citation)

April  2008

REQUIRING EMPLOYEE, NOT REPRESENTED BY UNION IN ARBITRATION PROCEEDING, TO PAY HALF OF COST IS UNCONSTITUTIONAL

Soto v. County of Riverside (2008) 162 Cal.App.4th 492

Soto was terminated from employment with the County as a supervising deputy coroner and the Riverside Sheriff's Association (RSA), Soto's union, filed an appeal on his behalf.  The appeal requested binding arbitration under the Memorandum of Understanding between the County and the RSA.  Soto pursued the appeal through a private attorney rather than through the union.  The County's attorney wrote to Soto's attorney stating that "the MOU" required Soto to deposit with the County one-half of the estimated hearing costs prior to the arbitration hearing.  Soto's attorney responded saying that Soto would prepay the costs under protest in order to get the arbitration moving along, although he believed the requirement was unconstitutional.  The arbitrator issued an opinion and award favorable to Soto. 

Soto filed a complaint for damages and injunctive relief with the superior court challenging the cost – sharing provision of the MOU.  The County filed its opposition arguing employees like Soto have the option to have the union represent them in the administrative appeal and the County would bear the employee's share of the arbitration costs.  However Soto voluntarily chose to proceed with his appeal using his own counsel and thus fell outside of the free hearing procedures because of his own actions.

The trial court granted Soto's motion for summary judgment and (1) declared unconstitutional the cost – sharing provision; (2) issued an injunction requiring the County to provide arbitration hearings under the RSA MOU free of monetary expense to employees; (3) ordered the County to reimburse Soto for the arbitration fees he had paid; and (4) awarded Soto his costs and attorney fees to be determined.

The California Court of Appeal, Fourth Appellate District noted the County did not offer a legitimate purpose or goal behind requiring members of the RSA to pay one – half of the hearing costs when they pursue an administrative appeal without being represented by the union.  Neither did the MOU provide any answers to this most critical question.  The Appellate Court however, pointed out that in its response to Soto's motion for summary judgment in the trial court, the County asserted that "the purpose of the cost sharing provision is to encourage public employees to allow their Union to represent them in the grievance process in order to effectively maintain the grievance/arbitration process to settle disputes between the County and its employees."

The Appellate Court concluded, "We agree with Soto that the County has a constitutional obligation ... to provide him with a due process hearing from his termination without requiring that he pay one-half the costs of arbitration.  Under the RSA and LEMU Memoranda of Understanding he County still requires that the aggrieved employee pay one – half the costs of a disciplinary appeal under some circumstances.  This practice is clearly unconstitutional ... "

April  2008

PUBLIC EMPLOYEES HAVE IMMUNITY FOR DISCRETIONARY ACTS EVEN IF DISCRETION EXERCISED BADLY

Ortega v. Sacramento county Department of Health and Human Services, et al., (2008)
161 Cal.App.4th 713

Police arrested Michael Ortega because he was screaming uncontrollably in the street and around his apartment and was violently banging on a refrigerator.  A urine test showed Michael was under the influence of PCP.  The Sacramento County Department of Health and Human Services, the Child Protective Services of Sacramento County, took Michael's 11 year old daughter, Mijalina, into protective custody.  A CPS social worker conducted an investigation and returned Mijalina to her father and four days later Michael stabbed Mijalina in the heart and lung.  She survived.

Acting through her legal guardian, Mijalina has sued CPS and the two social workers who participated in the release of Mijalina to her father.  The trial court granted summary judgment to the County, relying in part on the immunity for discretionary acts of government employees.  Government Code Section 820.2 provides: "Except as otherwise provided by statute, a public employee is not liable for any injury resulting from his act or omission where the act or omission was the result of the exercise of the discretion vested in him, whether or not such discretion be abused."

The California Court of Appeal, Third Appellate District affirmed, pointing out that the "legislature has determined that government could not function if its employees were subject to liability for their discretionary acts, even where the discretion is exercised badly.  Such a rule necessarily causes individual hardship in those cases where discretion is exercised badly and the result is serious injury.  But this is a policy calculation the Legislature has made.  It is not the proper role of this court to countermand it."