Metropolitan News-Enterprise


Wednesday, December 4, 2019


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Four Ninth Circuit Judges Say Colleagues Are Skirting the Law

Bea Declares There Is a “Troubling Pattern of Ignoring the Supreme Court’s Controlling Precedent’


By a MetNews Staff Writer


Four judges of the Ninth U.S. Circuit Court of Appeals have chastised their colleagues, accusing them of ignoring U.S. Supreme Court precedent on qualified immunity of police officers in excessive-force cases.

The reproach came in a dissent by Judge Carlos T. Bea to an order denying en banc review in a case decided June 20 in a memorandum opinion. That opinion reversed a grant of immunity by District Court Judge John F. Walter of the Central District of California.

Joining in Bea’s dissent were Circuit Judges Sandra S. Ikuta, Daniel Collins, and Daniel Aaron Bress. Bea and Ikuta were appointed by President George W. Bush and Collins and Bress were placed on the court by President Donald Trump.

Qualified immunity exists where the conduct does not contravene clearly established law.

Dissent From Order

Bea wrote:

“In holding that the police officers in this case violated clearly established law when they restrained Joseph Slater in the back of a patrol car, allegedly causing his death, the panel continues this court’s troubling pattern of ignoring the Supreme Court’s controlling precedent concerning qualified immunity in Fourth Amendment cases. Indeed, over just the last ten years alone, the Court has reversed our denials of qualified immunity in Fourth Amendment cases at least a half-dozen times, often summarily. By repeating—if not outdoing—the same patent errors that have drawn such repeated rebukes from the high Court, the panel here once again invites summary reversal. I respectfully dissent from our failure to rehear this case en banc.”

Bea cited the U.S. Supreme Court’s 2018 per curiam opinion in Kisela v. Hughes, in which it was declared that “police officers are entitled to qualified immunity unless existing precedent ‘squarely governs’ the specific facts at issue.”

The dissenter maintained:

“There is no such squarely governing precedent here, and the panel did not claim there was.”

June’s Decision

The panel deciding the case in June was comprised of Circuit Judges Jacqueline H. Nguyen and John B. Owens, joined by District Court Judge John Antoon II of the Middle District of Florida, sitting by designation. Their opinion says that officers in the present case—who “hogtied” a suspect in the back of the police car and “applied pressure to his body” while hobbling him—were on notice by virtue of the Ninth Circuit’s 2003 decision in Drummond ex rel. Drummond v. City of Anaheim that such force was excessive.

Drummond was quoted as saying that “squeezing the breath from a compliant, prone, and handcuffed individual...involves a degree of force that is greater than reasonable.” The panel observed that “that the circumstances here are sufficiently analogous to Drummond” that immunity must be denied.

Bea scoffed:

“In applying this lesser ‘sufficiently analogous’ standard, the panel committed the very same error for which we were summarily reversed in Kisela….(Ninth Circuit had denied qualified immunity ‘because of Circuit precedent that the court perceived to be analogous’).”

He challenged the notion that the facts were analogous to those in Drummond because in the present case, officers immediately summoned medical assistance when they detected that the suspect was suffering ill effects from the restraint.

Repeated Reversals

“Since our 2003 opinion in Drummond, the Supreme Court has issued no less than eight opinions reversing this court’s denial of qualified immunity in Fourth Amendment cases—four of which were summary reversals,” Bea pointed out.

The jurist noted that the Supreme Court in the 2015 case of City & County of San Francisco v. Sheehan, “with evident exasperation,” said:

 “We have repeatedly told courts—and the Ninth Circuit in particular—not to define clearly established law at a high level of generality.”

Bea’s dissent was to an order in the case of Slater v. Deasey, 17-56708.


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