Monday, August 7, 2017
Ninth Circuit Declares:
Action Against Beverly Hills Timely, but Meritless
Warrants to Search Home, Computer of a Man Who Was Suspected by Police of Killing His Wife Didn’t Stem From Bamboozling the Magistrate, Appeals Panel Says
By a MetNews Staff Writer
The Ninth U.S. Circuit Court of Appeals held yesterday that a civil rights lawsuit against the City of Beverly Hills and others alleging that three searches of the plaintiff’s home were conducted pursuant to warrants obtained through lying to the judge was timely—because the statute of limitation did not begin to run until the affidavits in support of the warrants were unsealed—but that the action lacked merit.
The plaintiff is real estate investor Gary Klein who was suspected by police of murdering his wife through poisoning, but was never charged. He has maintained his innocence, gaining sympathetic coverage in the Los Angeles Times and thundering against the Beverly Hills Police Department on his website, “beverlyhillscopsgonebad.com.”
Klein’s wife of eight years, Rina Klein, died on May 31, 2009, two days after being rushed to the hospital based on symptoms of having suffered a stroke. The decedent’s parents suspected that Gary Klein had caused her death,
On Aug. 3, 2009 a search warrant was executed at the Klein home, which included a search of the computer.
Klein brought his action against the city, the police department, the police chief, and two investigating officers on Jan. 7, 2013.
Fox Wasn’t Tricked
U.S. District Court Judge John F. Walter of the Central District of California on Aug. 3, 2015, granted summary judgment to the defendants, finding that the action was time barred, and also determining that the warrants, issued by then-Los Angeles Superior Court Judge Elden Fox (now retired), were not the product of judicial deception.
Ninth Circuit Judges A. Wallace Tashima and Jacqueline H. Nguyen, joined by District Judge Algenon L. Marbley of the Southern District of Ohio, sitting by designation, reversed, in a published opinion, the determination that the action was time-barred, but affirmed the summary judgment, in a memorandum, on the ground that the warrants were valid.
With respect to the warrants, the judges said:
“Klein’s judicial deception claims fail at the first step because many of Detective Chilson’s statements were not deliberately or recklessly false. For example, Detective [Daniel] Chilson correctly noted Klein’s request that no autopsy be performed on his wife’s body and Klein’s suggestion that his wife be placed on dialysis treatment.”
They observed that even if there were inaccuracies, they were not material to Fox’s decision to issue warrants. The judges added:
“The affidavits contain ample probable cause separate and apart from any purported misrepresentations, including: the fact that Klein’s wife was seeking a divorce; his wife’s statements to others that, three weeks before her death, Klein had threatened her. claiming that he could ‘get rid of her’ and that ‘no one would know how she died:’ Klein’s anger at the prospect of a full autopsy; Klein’s phone call to his probate attorney less than twenty-four hours after his wife’s death to ask about her financial situation; and the forged signatures on the codicil to his wife’s will.”
Not Time Barred
As to the timeliness of the action, the judges said, in a per curium opinion, that a federal civil rights action is governed by the state statute of limitation on personal injury actions which, in California, is two years. They said that in the usual case based on an alleged Fourth Amendment violation, the action accrues at the time of the search.
“Judicial deception claims, by their very nature, accrue differently,” the opinion said. “These claims involve false or misleading misrepresentations that may not be readily apparent at the time of the search.”
They explained that only when the affidavits are viewed can it be determined how the magistrate might have been misled.
The case is Klein v. Beverly Hills, No. 15-56279.
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