Monday, February 13, 2012
Page 1
Ninth Circuit Rejects Claim by Family of Man Slain by Deputy
By KENNETH OFGANG, Staff Writer
The parents of a 25-year old man killed by a Los Angeles sheriff’s deputy as he and his girlfriend were attempting to flee in a stolen truck cannot pursue a federal civil rights claim against the county, the Ninth U.S. Circuit Court of Appeals ruled Friday.
The judges concluded that the action by the parents of Glenn Patrick Rose is barred as a matter of law because a judgment in their favor would contradict a verdict finding Rose’s girlfriend, Sarah Morales, guilty of assaulting the officer who shot Rose, among other crimes.
The panel’s conclusion, in an opinion by Judge Consuelo Callahan, is directly opposite that of this district’s Court of Appeal, Div. Eight, which ruled in November that the same plaintiffs may pursue a California wrongful death action in Los Angeles Superior Court on the same facts.
Rose was fatally shot May 13, 2008 after he and Morales allegedly stole a 1991 Honda Accord and led California Highway Patrol officers on a pursuit from the Pomona Freeway and to surface streets in Covina.
After the Honda became disabled, the couple abandoned the car in an alley in the 300 block of 1st Avenue, and took a 1989 burgundy pickup truck that was parked in the same alley.
Officers’ Actions
Sheriff’s Deputy Steven Winter and three other officers stopped their patrol vehicles in the alley and ran to the truck, with Winter approaching the driver’s side, where Rose was seated.
While the truck was still parked, Rose allegedly attempted to strike Winter through the driver’s window, and Morales kicked and punched the officers who had approached the passenger side of the truck.
Rose then started the truck and drove it forward, colliding with a CHP patrol car across the alley. Rose put the vehicle in reverse, moving it toward Winter, who was running after the truck, and then hit the patrol car again.
He reversed a second time, according to testimony, in the direction of Winter, who moved out of the truck’s path and to the passenger side of the vehicle. Rose then brought the truck to a momentary stop, at which time Winter drew his gun and shot Rose to death.
Morales was later tried and convicted of two counts of driving a vehicle without the owner’s consent, three counts of assault with a deadly weapon or by force likely to produce great bodily injury or death on a peace officer—including one count based on actions directed at Winter, one count of evading a pursuing officer, and one count of resisting an executive officer.
In 2009, Rose’s parents filed suit in the U.S. District Court for the Central District of California against the county and Winter, asserting violation of 42 U.S.C § 1983 and state law claims for battery and negligence.
Heck v. Humphrey
The district court found the Sec. 1983 claim was barred by Heck v. Humphrey (1994) 512 U.S. 477 and dismissed it, along with the state law claims which it declined to exercise supplemental jurisdiction over.
In Heck, the United States Supreme Court considered whether a state prisoner could challenge the constitutionality of his conviction in a suit for damages under Sec. 1983, and held such a prisoner could not if a judgment in his favor would necessarily imply the invalidity of his conviction or sentence.
Rose’s parents appealed the dismissal to the Ninth Circuit while pursuing their wrongful death suit in the Los Angeles Superior Court based on their state law claims for battery and negligence.
The state case was dismissed by Los Angeles Superior Court Judge Dan T. Oki, who reasoned—much like the federal panel did Friday—that any recovery of damages based on Deputy Winter’s alleged use of unreasonable force would necessarily imply the invalidity of Morales’ criminal conviction for assault with a deadly weapon on a peace officer and resisting a peace officer.”
Div. Eight, however, concluded that since it was Morales, not Rose, who was convicted, Heck did not apply and the deceased—through his parents-“is entitled to his day in court.”
‘Overwhelming Evidence’
But Judge Consuelo Callahan, writing for the Ninth Circuit, said there was “overwhelming evidence” that both Rose and Morales “were resisting arrest by force and assaulting police officers.”
Given that Morales’ conviction for assaulting Winter with a deadly weapon was based on her aiding and abetting Rose in driving the truck, the verdict necessarily determined that the deputy did not use excessive force against Rose, satisfying the Heck bar, the judge said.
The opinion was joined by Senior Judge Ferdinand Fernandez and visiting Judge Ralph Erickson, chief judge of the District of North Dakota.
Dale K. Galipo of the Law Offices of Dale K. Galipo represented Rose’s parents. The county and deputy were represented by David D. Lawrence and Jin S. Choi of Lawrence Beach Allen & Choi.
The case is Beets v. County of Los Angeles, 10-55036.
Copyright 2012, Metropolitan News Company