Friday, April 26, 2019
Decision Follows Remand From U.S. Supreme Court; Same Panel Previously Found Discretionary Immunity Was Unavailable
By a MetNews Staff Writer
An officer who came to an apartment in response to a phone call that a domestic disturbance was in progress inside had qualified immunity in an action by a man who emerged from the apartment, was told to leave the door open but closed it, attempted to brush by the officer, and was thrown to the ground and handcuffed, the Ninth U.S. Circuit Court of Appeals held yesterday.
It was the second time it examined the summary judgment granted by District Court Judge Jeffrey T. Miller of the Southern District of California in favor of Officer Robert Craig in an action brought by Marty Emmons alleging excessive force. In a 2018 opinion, the Ninth Circuit reversed the judgment.
However, the United States Supreme Court on Jan. 9 vacated and remanded the case with respect to Craig. (It also held that another officer who was on the scene had clear entitlement to discretionary immunity, countermanding the Ninth Circuit’s reversal of summary judgment for that defendant).
In yesterday’s per curiam opinion, a three-judge panel noted it had received supplemental briefing on the issue of whether “clearly established law” precluded the action Craig took—which would have defeated qualified immunity—and now concluded it did not. Comprising the panel were Circuit Judges Susan P. Graber and Andrew D. Hurwitz, joined by District Court Judge Algenon L. Marbley of the Southern District of Ohio, sitting by designation.
Last year, that same panel declared:
“There is evidence from which a reasonable trier of fact could find that Mr. Emmons was unarmed and non-hostile. The right to be free of excessive force was clearly established at the time of the events in question.”
In support of that proposition, it cited the Ninth Circuit’s 2013 decision in Gravelet-Blondin v. Shelton, 728 F.3d 1086, 1093 (9th Cir. 2013). The issue was whether a police sergeant who, in a 2008 incident, used a taser in dart mode on a passive bystander was entitled to qualified immunity.
Senior Circuit Judge Michael Daly Hawkins wrote for the majority of a three-judge panel in Gravelet-Blondin, saying that “it was well known as of 2008 that a taser in dart mode constitutes more than trivial force.” He declared:
“The right to be free from the application of non-trivial force for engaging in mere passive resistance was clearly established prior to 2008.”
Supreme Court Decision
In its January per curium decision, the U.S. Supreme Court faulted the Ninth Circuit for not defining “with specificity” the law it found to have been clearly established.
The opinion says:
“Assuming without deciding that a court of appeals decision may constitute clearly established law for purposes of qualified immunity…, the Ninth Circuit’s Gravelet-Blondin case law involved police force against individuals engaged in passive resistance. The Court of Appeals made no effort to explain how that case law prohibited Officer Craig’s actions in this case.”
In yesterday’s decision, the judges said that although the plaintiff “posed no apparent danger to Craig,” they are “mindful of the Supreme Court’s conclusion” in its January decision “that a case involving police force employed in response to mere ‘passive resistance’ to police is not sufficiently on point to constitute clearly established law.”
The opinion continues:
“The Court therefore must have concluded implicitly that Marty’s actions involved more than passive resistance. Otherwise, the Court would not have vacated our decision in the face of our citation to Gravelet-Blondin….Given the Court’s admonition, we are unable to find a case so precisely on point with this one as to satisfy the Court’s demand for specificity. Officer Craig is therefore entitled to qualified immunity.”
The case is Emmons v. City of Escondido, 16-55771.
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