Tuesday, August 30, 2016
Ninth Circuit Rules for LAPD in Beating Suit By Former Universal Pictures Executive
By a MetNews Staff Writer
The Ninth U.S. Circuit Court of Appeals yesterday affirmed a judgment in favor of the Los Angeles Police Department, two of its officers, and the police union in a suit brought by former Universal Pictures chairman Brian Mulligan.
Mulligan claimed that officers James Nichols and John Miller assaulted him in Eagle Rock in May 2012, and that city officials and the union retaliated against him, in violation of the First Amendment, by falsely claiming that he had acted aggressively and that he was a drug abuser.
The officers said they encountered Mulligan near the Occidental College entrance while responding to a 911 call about an erratic driver, who they said matched Mulligan’s description. The officers took him to a motel—he said he was checked in against his will, the officers said he was disoriented and asked to be taken there—but he left there later that night and encountered the officers again.
Mulligan said he did not want to deal with Nichols and Miller and ran at the sight of them, but they chased him and attacked him, slamming his face into the asphalt. The officers said Mulligan was screaming and trying to open locked cars along the street, that they chased him and called for him to stop, and that he began charging them, causing Miller to subdue him forcibly until a third officer came and assisted in his arrest.
The above photos of Brian Mulligan were provided courtesy of Mulligan and his attorney. The photo on the right purportedly was taken following Mulligan’s 2012 encounter with police officers on an Eagle Rock street.
Mulligan claimed that the officers acted unlawfully, and that he lost his job as an executive of Deutsche Bank as a result of publicity regarding the incident, including the allegedly false press release issued by the union several months later, linking him to the abuse of bath salts.
Nichols was subsequently charged, along with another officer, of sexually assaulting several women who were in their custody. That case is pending, but U.S. District Judge R. Gary Klausner of the Central District of California ruled that evidence regarding those offenses was inadmissible at the trial of Mulligan’s suit.
Klausner granted summary judgment to the defendants on the retaliation claim and on state-law claims of false imprisonment and negligence on the part of the police. Claims of negligent supervision, excessive force, and assault and battery went to a jury.
Jurors found for the defendants on the excessive force claim, which was bifurcated and tried first. The judge then dismissed the remaining claims as moot.
Judge Richard Clifton, writing for the Ninth Circuit, said exclusion of the evidence regarding Nichols was not an abuse of discretion.
“The allegations against Nichols had nothing to do with the excessive force claim at issue in the trial,” the judge wrote. “Evidence of prior bad acts is not admissible except to show ‘motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake, or lack of accident.’…The accusations that Nichols had sexually assaulted vulnerable women involved conduct distinct from the excessive force allegations at issue in Mulligan’s case.”
The appellate panel also affirmed the dismissal of the retaliation claim, saying the alleged falsehoods did not constitute state action for First Amendment purposes.
Mulligan’s attorney, Louis “Skip” Miller of Miller Barondess LLP said “the decision is wrong,” and that he and his client “are going to move forward and pursue our legal options.”
The case was argued on appeal by Jennifer Mira Hashmall for the plaintiff, Jules S. Zeman for Nichols, Deputy City Attorney Blithe Smith Bock for Los Angeles and Miller, and Alexander H. Cote for the police union.
The case is Mulligan v. Nichols, 14-55278.
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