CASE SUMMARIES

May 2008

FORCE USED WILL BE DETERMINED BY REASONABLENESS OF USE

Torres v. City of Madera (2008) 524 F.3d 1053

In the process of responding to a loud music complaint, Madera City police officers arrested two individuals – Erica Mejia and Everardo Torres – handcuffed them, and placed them in the back of a patrol car.  After the two were in the patrol car for approximately thirty to forty-five minutes (during which time Everardo had fallen asleep), Mejia was removed from the car and her handcuffs were readjusted.  At this time, Everardo awoke and started yelling and began kicking the back window of the patrol car.  In response, Officer Noriega approached Everardo's side of the patrol car.  At least one witness saw Officer Noriega say something as she approached, which Officer Noriega described as "yelling at [Everardo] to stop or he was going to be tased."

Officer Noriega then opened the patrol car door and reached down with her right hand to her right side, where she had a Glock semiautomatic pistol in a holster in her officer belt and, immediately below, a Taser M26 stun gun in a thigh holster.  She unholstered a weapon, pointed the weapon at Everardo's center mass, and pulled the trigger of her similarly sized and weighted,  Glock, mortally wounding Everardo.
The Torres family sought damages from Officer Noriega and the City of Madera Police Department under 42 U.S.C. §1983 for violation of Everardo's Fourth Amendment right to be free from unreasonable seizures.  Officer Noriega and Madera moved for summary judgment on this claim, and the district court granted this motion, concluding that "[a] Fourth Amendment seizure ...occur[s]... only when there is a governmental termination of freedom of movement through means intentionally applied," and that "the means or instrumentality at issue is the intent to seize Everardo with the [Taser] versus the Glock and not the general intent to seize Everardo by shooting 'something.'"  The family appealed.

The United States Court of Appeals, Ninth Circuit, reversed and remanded pointing out that it employs a "continuing seizure" rule, which provides that "once a seizure has occurred, it continues throughout the time the arrestee is in the custody of the arresting officers." (Citations)  The Appellate Court pointed out that because Everardo was handcuffed and placed in the back of the patrol car, where he remained when Officer Noriega fired, Everardo remained "in the custody of the arresting officers," and the officers' conduct continued to be governed by the Fourth Amendment.

The Court concluded that "even though Everardo was "seized" within the meaning of the Fourth Amendment, Officer Noriega can only be liable under Section 1983 if her conduct was unreasonable." (Citations)  The reasonableness of a particular use of force is judged "from the perspective of a reasonable officer on the scene," and "in light of the facts and circumstances confronting them." (Citation)  "We remand to the district court to determine in the first instance whether Noriega's conduct was unreasonable under Graham, 490 U.S. at 396-97, and to otherwise proceed with the matter.

May 2008
HEALTH AND SAFETY CODE §11362.77 HELD UNCONSTITUTIONAL

People v. Kelly (2008) 163 Cal.App.4th 124

Patrick Kelly had a doctor's recommendation to use marijuana, but did not have a doctor's recommendation to have more than eight ounces of dried marijuana.  After getting a search warrant, law enforcement officers searched Kelly's home.  Officers found about twelve ounces of dried marijuana and marijuana plants.  At trial for sale and cultivation of marijuana, the prosecutor, relying on section 11362.77, argued that because Kelly possessed twelve ounces of dried marijuana, but lacked a recommendation to possess more than eight ounces, Kelly was guilty of the charged offenses.  Kelly was convicted and appealed.

The California Court of Appeal, Second Appellate District reversed and remanded ruling that Kelly was entitled to a retrial because it was error to admit evidence and argument regarding Health and Safety Code section 11362.77.  The Appellate Court noted that,

"[I]n 1996, California voters approved Proposition 215, the Compassionate Use Act (CUA). The CUA provides that a patient who possesses or Cultivates marijuana for his or her personal medical purposes upon a doctor's Recommendation is not liable for certain marijuana – related offenses. Although the CUA states that the marijuana possessed or cultivated must be For the patient's "personal medical purposes," the CUA does not place a Numeric cap on how much marijuana a patient may possess or cultivate. The Legislature, however, thereafter enacted, without the voters' approval, Health And Safety Code section 11362.77. ... That section caps the amount of marijuana a patient may have at eight ounces of dried marijuana and six mature or twelve immature marijuana plants, unless the patient has a doctor's recommendation that the specified quantity does not meet the patient's needs."

The Appellate Court concluded that "the prosecutor's argument was improper. It was improper because the CUA can only be amended with voters' approval. Voters, however, did not approve the eight ounce limit and other caps in section 11362.77; hence, section 11362.77 unconstitutionally amends the CUA. It was prejudicial error therefore to allow the prosecutor to argue that defendant could be found guilty of the charged crimes if he had more than eight ounces of dried marijuana and did not have a doctor's recommendation to have more than that amount."

May 2008

Levine v. City of Alameda (2008) 525 F.3d 903

City Manager James Flint told Edward Levine, a property manager for the City, that he was going to be laid off. Levine wrote Flint a letter in which he requested a pre-termination hearing regarding his lay off. Levine believed that the lay off was a pretext and that he was being terminated because Flint disliked him. After receiving the letter, Flint gave it to the City's Human Resources Director, Karen Willis, and told her to make sure that Levine's due process rights were respected. Willis then wrote Levine a letter stating that he was not entitled to a pre-termination hearing under his union contract because he was being laid off and not discharged for cause.

Levine then filed an action under 42 U.S.C. §1983 against the City of Alameda and James M. Flint, both individually and as City Manager, alleging violation of his due process rights under the Fourteenth Amendment. The district court granted summary judgment in part (1) for Levine, finding that his procedural due process rights were violated and he was entitled to a full evidentiary hearing before a neutral third party; and (2) for defendants, finding that Flint was not personally liable based on qualified immunity and that the City was not liable as a municipality.

The United States Court of Appeals, Ninth Circuit, affirmed the district court noting that in this case, the district court properly found that Levine was a civil servant who had a property interest in continued employment under the Due Process Clause. As an employee with a property interest under the Due Process Clause, Levine was entitled to have a hearing before his lay off to allow him to present his side of the story.

The Ninth Circuit pointed out that the Director of Human Resources' offer to meet with Levine to discuss lay off procedure failed to give Levine a meaningful opportunity to respond to the lay off decision. The Court also noted that as a supervisor, Flint can be held liable in his individual capacity only if he set "in motion a series of acts by others, or knowingly refused to terminate [such acts], which he knew or reasonably should have known, would cause others to inflict the constitutional injury." Flint forwarded Levine's letter requesting a pre-termination hearing to Willis and expressly told her to ensure that Levine's due process rights were respected. Flint, therefore, took action to protect Levine's due process rights and there was no evidence that Flint knew or should have known that Willis would deprive Levine of his due process rights by improperly denying his request.

The Court concluded that Levine produced no evidence that the City had a policy that amounted to deliberate indifference to his constitutional due process rights, and was the moving force behind a violation of those rights. Summary judgment on this issue was proper.

May 2008

ARREST WITHOUT PROBABLE CAUSE EVEN THROUGH DISTRICT ATTORNEY FILES NEGATES QUALIFIED IMMUNITY DEFENSE

Beck v. City of Upland (2008) 527 F.3d 853

Kenneth Beck was arrested six days after he confronted two city police officers over what he felt to be unfair treatment by the city regarding a contract dispute between Beck and the City of Upland.  Beck's arrest was pursuant to a warrant for two felony violations of a California statute prohibiting threats of violence made to deter police officers from performing their duties.  During prosecution of the criminal matter the warrants were found to be without probable cause and all charges were dismissed.

Beck filed a civil rights action alleging that his "First and Fourth Amendment rights ... were violated when he was arrested and imprisoned [without probable cause] for his protected speech and then forced to incur the cost of defending himself against the criminal charges."  The question considered by the district court was whether Beck's suit under 42 U.S.C. §1983 for the constitutional violations and for various state law causes of action against the City of Upland, its police department, and the officers who engineered his arrest, Police Chief Martin Thouvenell and Sergeant Jeff Mendenhall, could go forward to trial.

The district court held that it may not, because (1) a San Bernardino County prosecutor authorized the filing of a criminal complaint before the police officers obtained an arrest warrant, thereby acting as an intervening cause of Beck's injuries and cutting off post - complaint liability under §1983; and (2) California state law immunized the officers.

The United States Court of Appeal, Ninth Circuit, noted that after the district court decision, the United States Supreme Court decided Hartman v. Moore, 547 U.S. 250 (2006), clarifying the  elements of a constitutional tort under §1983 for retaliatory arrest or prosecution.  The Court held, relying in part on Hartman, that causation issues arising from the criminal complaint do not preclude Beck's case, and that California immunity law does not either and, therefore, reversed the district court's grant of summary judgment against Beck.

The Ninth Circuit pointed out that a "retaliatory motive on the part of an official urging prosecution combined with an absence of probable cause supporting the prosecutor's decision to go forward are reasonable grounds to suspend the presumption of regularity behind the charging decision."  Under Hartman, if a plaintiff can prove that the officials secured his arrest or prosecution without probable cause, and were motivated by retaliation against the plaintiff's protected speech, the plaintiff's First Amendment suit can go forward.