Metropolitan News-Enterprise


Monday, July 30, 2018


Page 1


In Two Cases…

Ninth Circuit Finds Against Law Enforcement Officers

Opinions Say Qualified Immunity Not Applicable at Pleading Stage in Leading Trump Supporters Into Crowd of Protesters; Deputies Proximately Caused Injuries Through Warrantless Entry


By a MetNews Staff Writer


The Ninth U.S. Circuit Court of Appeals issued two opinions Friday in which conduct of law enforcement officers was in issue, declaring in one that qualified immunity does not apply, at the pleading stage, to police who allegedly subjected pro-Trump demonstrators to danger by leading them through crowds of anti-Trump protesters, who caused injuries.

In the other opinion, on remand from the U.S. Supreme Court, it rejected the contention of Los Angeles sheriff’s deputies, who entered a backyard shack without a warrant and shot an occupant at least 10 times when he reached for a BB gun, that his seemingly bellicose action was a superseding cause of shots being fired at him.

In Hernandez v. City of San Jose, No. 17-15576, Senior Circuit Judge Dorothy W. Nelson wrote for a three-judge panel in ruling out qualified immunity “at this stage of the proceedings,” to seven San Jose police officers in connection with their conduct at a June 2, 2016 rally in support of the candidacy of Donald Trump for president. The opinion affirms a denial by District Court Judge Lucy H. Koh of the Northern District of California of the officers’ motion to dismiss.

According to the complaint, as Trump supporters left San Jose’s McEnery Convention Center, officers “directed the Trump supporters to turn north and to proceed along Market Street” where they encountered a “crowd of violent anti-Trump protesters.” The pleading adds:

“The police also actively prevented the Trump Rally attendees from proceeding south along Market Street, away from the anti-Trump protesters, or from leaving the convention center through alternative exits.”



In this file photo, demonstrators are seen at a San Jose rally against then-Republican presidential candidate (now President) Donald Trump. Objects were hurled by protestors at persons attending a pro-Trump rally as they existed the Convention Center. A Ninth U.S. Circuit Court of Appeals opinion on Friday affirms the denial of qualified immunity to officers who shepherded the attendees in the direction of the protestors rather than away from them.


Nelson’s Opinion

Nelson wrote:

“According to the Rally Attendees, the Officers violated their due process rights by exposing them to the danger of an unruly mob. Because the Officers placed them in danger, which resulted in their injuries, and their rights were clearly established at the time of the Rally, the Attendees contend we should deny the Officers qualified immunity. We agree.”

While the officers contended that the danger was posed by the protestors, not they, Nelson said that what matters is that, under the allegations, the officers placed the supporters in a more dangerous position than they would otherwise have been in, and acted with deliberate indifference to their plight.

Taking the allegations as true, the constitutional violation was obvious, she said, precluding qualified immunity.

 The city’s appeal was dismissed.

“[W]e decline to exercise jurisdiction over it,” Nelson said, “because it is not inextricably intertwined with the qualified immunity issue.”

Warrantless Search, Shooting

Circuit Judge Ronald M. Gould wrote for a three-judge panel in affirming the determination by District Court Judge Michael W. Fitzgerald of the Central District of California that Sheriff’s Deputies Christopher Conley and Jennifer Pederson are liable for injuries to plaintiffs Angel and Jennifer Mendez.

Deputies entered the structure they occupied in the course of searching for a parolee. They did not knock or announce their presence.

When Angel Mendez reached for the BB gun, the deputies fired on him, resulting in one of his legs being partially amputated. A deputy fired one shot at the wife, hitting her back.

 Fitzgerald in 2013 awarded the couple about $4 million.

The Ninth Circuit in 2016 said the judgment was “AFFIRMED insofar as it awards damages for the shooting and for the unconstitutional entry” but that the “award of $1 nominal damages for the knock-and-announce violation is REVERSED.”

The U.S. Supreme Court last year vacated the Ninth Circuit’s opinion, remanding the case for a more thorough proximate cause analysis.

Proximate Cause Found

In Friday’s opinion, Gould said:

“On remand we must address whether the officers’ unlawful entry, as distinct from the unlawful mode of entry—that is, the failure to knock and announce—was the proximate cause of the Mendezes injuries. We hold that it was.”

He explained:

“Whether understood in terms of the scope of the risk or in terms of foreseeability, the findings of the district court make clear that the officers’ entry into the structure was here the proximate cause of the Mendezes’ injuries. This is not a case where one can say that the injury to the Mendezes was a mere fortuity. The injury followed in a normal course as a result of the unlawful acts of the officers.”

Gould commented that “the risk of injury posed by the entry of an armed stranger into a residence is one of the reasons the Fourth Amendment prohibits entry except under defined specific conditions.”

Keeping Firearms Foreseeable

He went on to say:

“[A]s the district court correctly observed, in light of the protections afforded by the Second Amendment, which are at their height where defense of one’s home is at stake,…it can be expected that some individuals will keep firearms in their homes to defend themselves against intruders….Under these conditions, armed officers entering a house will necessarily present a substantial risk to anyone in the house they perceive as being armed. It is all the more important that officers in such cases abide by their duties under the Fourth Amendment.”

The opinion rejects the deputies’ contention that Angel Mendez’s action in reaching for the BB gun by his side, while lying on a futon, was the superseding cause of their shooting.

Not Superseding Cause

Gould said:

“[I]f an officer has a duty not to enter in part because he or she might misperceive a victim’s innocent acts as a threat and respond with deadly force, then the victim’s innocent acts cannot be a superseding cause.”

Addressing an issue he did not discuss in his 2016 opinion, Gould said that the Mendezes also have a cause of action for negligence, under California law.

“On remand, the judgment shall be amended to award all damages arising from the shooting in the Mendezes’ favor as proximately caused by the unconstitutional entry, and proximately caused by the failure to get a warrant,” the opinion directs. “Judgment shall also be entered in the Mendezes’ favor on the California negligence claim for the same damages arising out of the shooting.”


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