Metropolitan News-Enterprise


Monday, August 26, 2019


Page 1


Ninth Circuit:

Officers Who Interceded in Civil Dispute Do Not Possess Qualified Immunity


By a MetNews Staff Writer


Two Riverside police officers who arrested two brothers in connection with a dispute over their possession of a rented mattress were properly denied qualified immunity, the Ninth U.S. Circuit Court of Appeals has held, with a civil rights action alleging a wrongful arrest in 2013 returning to the District Court.

A three-judge panel on Thursday affirmed, in a memorandum opinion, the denial by District Court Judge Jesus G. Bernal of the Central District of California of a summary judgment on the issue of qualified immunity that was sought by the City of Riverside and police officers Daniel Macias and Michael Foster.

This is the second time the case has gone to the Ninth Circuit. On Aug. 15, 2017, a different three-judge panel, in a 2-1 decision, vacated a summary judgment in favor of the officers granted by an Arizona magistrate judge and remanded for a determination of the issue of qualified immunity—which applies where there is not “clearly established” law proscribing the conduct at issue.

$2,000 Mattress

The action was brought by Raymond Nichols and Daniel Nichols who were arrested on March 9, 2013, on suspicion of stealing a $2,000 air mattress that had been prescribed for their mother, Waly Nichols, a patient at a rehabilitation center. When the woman was released from the facility, the men took the mattress with them to their mother’s home, over the protest of a nurse who first wanted to ascertain if they had the permission of the rental company to do so.

The day after they were arrested, they were released and no charges were filed.

Comprising the three-judge panel that affirmed Bernal’s decision were Senior Circuit Judge Mary Murphy Schroeder, Circuit Judge Susan P. Graber, and Joan H. Lefkow, a District Court judge for the Northern District of Illinois, sitting by designation.

No Probable Cause

They said:

“We have held that the existence of a dispute over the amount of a bill or the right to possess are civil in nature and ordinarily do not give rise to probable cause to arrest….This was such a dispute….[T]he officers lacked probable cause. Raymond and Daniel told the police officers that they had rented the mattress, and they produced the rental receipt and agreement for the officers’ review. The only dispute was whether the brothers could move that mattress before delivery of a new one. The district court therefore properly held that Defendants were not entitled to immunity because the law was clearly established at the time of Plaintiffs’ arrest in 2013.”

The case is Nichols v. City of Riverside, 18-55135.

2017 Decision

The majority in the appeal decided two years ago—Circuit Judge Andrew D. Hurwitz and District Court Judge Leslie E. Kobayashi of the District of Hawaii, sitting by designation—had a similar view. They said in a memorandum decision:

“In California, grand theft requires the specific intent to permanently deprive the owner of the use of property….In light of this legal standard, the undisputed facts do not establish probable cause to believe that Raymond and Daniel had the requisite intent to commit grand theft. At most, the record shows some confusion about whether the brothers were entitled to move the rented mattress to Ms. Nichols’s house after her discharge from the rehabilitation center, or whether the rental company instead intended to deliver a substitute mattress to the residence.”

Circuit Judge Carlos Bea dissented. He pointed out that the rental agreement, which Daniel Nichols showed the officers, expressly said that the borrower was authorized to use the mattress only at the address specified, which was that of the rehabilitation center.

Officers Acted Reasonably

Asserting that the officers did have probable cause, he said:

“True, Raymond and Daniel told the officers that they had the rental company’s permission to take the mattress. But given that the nurse had told the officers that she hadn’t yet got that approval and that a second mattress was being delivered to Waly’s house that day, the officers reasonably could have found the brothers’ story to be not credible. Likewise, the fact that Daniel returned with the mattress after he learned that Raymond had been arrested has no bearing on whether the brothers had the specific intent to steal the mattress at the time of the alleged theft. A thief’s decision to return stolen property does not negate his prior intent to steal.”

That case is Nichols v. Macias, 15-55938


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