Monday, December 16, 2002
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Ninth Circuit Rejects Gunman’s Civil Rights Suit Against City
By ROBERT GREENE, Staff Writer
An armed robber who opened fire on police officers when they blocked his getaway cannot sue the city for violating his civil rights, but his dead cohort’s survivors can, the Ninth U.S. Circuit Court of Appeals ruled Friday.
In a partial victory for the City of Los Angeles, the three-judge panel rejected Robert Cunningham’s excessive force suit against the city since his allegations conflict with factual findings made by the Ventura Superior Court jury that convicted him of felony murder and attempted murder in the deadly June 26, 1995 shootout just over the Ventura County line.
Plainclothes Los Angeles police officers in the controversial Special Investigation Section shot Cunningham, a 26-year-old Reseda resident, and Daniel Soly, his 27-year-old partner from West Hills, after following them to a Newbury Park liquor store and watching them rob it. Soly was killed in the gun battle. Cunningham was paralyzed from the waist down.
Two officers were shot but recovered.
Cunningham claimed the officers broke the law by unnecessarily shooting first, firing shotguns and handguns at the two suspects after they emerged from the liquor store and got into their getaway car.
His federal lawsuit raised an outcry at City Hall over the prospect of paying off a criminal defendant charged with the attempted murder of police officers. But it also focused public concern on the activities of the SIS, a 30-year-old unit that has developed the practice of allowing suspects to complete armed robberies so they can be caught in the act and be more easily convicted.
First Shot
The Ventura criminal jury found that Cunningham was the one who fired the first shot. He was convicted of the attempted murder of the SIS officers and the felony murder of Soly, under the theory that Cunningham launched the chain of events that led to his partner being felled by a police bullet.
In the federal suit, U.S. District Judge J. Spencer Letts of the Central District of California rejected the city’s assertion that Cunningham’s claims are barred under the 1994 U.S. Supreme Court ruling in Heck v. Humphrey. But after the case went to the Ninth Circuit and was remanded, Chief Judge Consuelo Marshall revisited the Heck question and granted summary judgment.
Heck holds that “if a criminal conviction arises out of the same facts and is fundamentally inconsistent with the unlawful behavior for which the section 1983 damages are sought, the 1983 damages must be dismissed.”
Marshall found—and the Ninth Circuit panel agreed—that Cunningham’s claim disputed several factual issues that the Ventura jury already had resolved against him.
“Cunningham’s claims are squarely barred to the extent they depend on the theory that the police fired first,” Judge M. Margaret McKeown wrote. “In accord with the jury instructions, Cunningham’s conviction for felony murder required the jury to find that he intentionally provoked the deadly police response, and that he did not act in self-defense. Any civil claim that Cunningham was not the provocateur necessarily fails as a result of the jury verdict.”
Cunningham also argued that by jamming his escape car the SIS officers created a dangerous condition, intending to force him to shoot. But unlike in cases in which courts permitted civil rights suits to go forward when the criminal defendant was backed into a dangerous situation, McKeown said, Cunningham would have to show that the police initiated the entire sequence of events.
The jury verdict negated that possibility here, the judge said, because it meant the jurors necessarily concluded that the incident took place in the course of a robbery, and that Cunningham must have known the people shooting at him were law enforcement officers acting in the scope of their duties—and thus not committing excessive force.
Solys’ Claim
But McKeown said Marshall erred in relying on Heck to grant summary judgment against Soly’s parents.
Soly was killed at the scene and no jury made any findings as to him, McKeown said, so his survivors cannot have their civil rights suit dismissed out of hand.
The judge rejected the city’s contention that Soly’s actions were so similar to Cunningham’s that the same reasoning must apply.
There could be no privity between Soly’s parents and Cunningham at trial since one of the charges against Cunningham was the murder of his partner. If Soly hadn’t died, he would have faced no such charge.
“In the trial that did occur, the Solys were not represented by counsel and had no voice in the proceedings,” McKeown said. “Nor did the jury have the benefit of evidence or argument from Soly’s perspective. Looking into a crystal ball to divine how the trial might have proceeded in that alternate universe would require nothing short of rank speculation on our part—an exercise that is the antithesis of the confidence necessary to invoke collateral estoppel.”
Soly’s parents were represented by Venice attorney Stephen Yagman, who in published news reports has branded the SIS a “death squad.” City Attorney Rocky Delgadillo was not available for comment.
The case is Cunningham v. Gates, 01-56339.
Copyright 2002, Metropolitan News Company