Metropolitan News-Enterprise


Thursday, August 22, 2019


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Ninth Circuit:

LAPD Officer Entitled to Qualified Immunity in Shooting


By a MetNews Staff Writer


The Ninth U.S. Circuit Court of Appeals held yesterday that a Los Angeles Police Department officer is entitled to qualified immunity in an action based on his nonfatal shooting of a 15-year-old boy who was in a group of four youths in an alley, one of whom was perceived by the officer to be holding a gun on one of the others.

Officer Miguel Gutierrez fired his weapon, grazing the back of Jamar Nicholson Green, who was the boy believed to be holding a weapon (which was actually a toy pistol with an orange cap). Gutierrez participated in the decision to handcuff the youths—including Green, who was taken to the hospital and later released to his mother—but was separated from them and did not have any part in detaining them, in restraints, for more than five hours.

Green sued, through a guardian ad litem, alleging the shooting of him violated his substantive due process rights under the Fourteenth Amendment and the detention of him breached his Fourth Amendment rights. Also suing through a guardian ad litem, based on being fired upon and the detention, was Jason Huerta, the boy whom Gutierrez had thought was a victim.

District Court Decision

District Court Judge Dean D. Pregerson of the Central District of California on Oct. 2, 2017 denied Gutierrez qualified immunity, which applies absent “clearly established” law proscribing the conduct.

Such immunity was inappropriate as to the Fourteenth Amendment claim because the only information Gutierrez had when he fired was that one youth—Michael Sanders—appeared to be holding a gun, the judge said, declaring:

“A finder of fact could conclude that deliberation was practical under the circumstances, and that Gutierrez disregarded the known or obvious risks of injury to J.H. and J.N.G. when he fired at Sanders without taking time to assess the situation.”

(Pregerson did grant qualified immunity based on the youths’ Fourth Amendment in connection with the shooting, saying: “[T]he court concludes that neither J.N.G nor J.H. may bring Fourth Amendment claims as a result of being seized by Officer Gutierrez’s gunfire. Plaintiffs have not created a triable issue of fact that Officer Gutierrez intended to use deadly force against J.N.G. or J.H. when it was Sanders who held the airsoft gun.”)

The judge denied qualified immunity as to the detention, explaining that “even though Officer Gutierrez separated from the scene following the handcuffing of J.H. and J.N.G., his actions were integral in Plaintiffs’ initial arrest and detention for a potential weapons violation.”

 Ninth Circuit Decision

 Yesterday’s opinion, by Circuit Judge Jacqueline H. Nguyen, reverses the denial of qualified immunity with respect to the shooting, but affirms in connection with the detention.

Nguyen said:

“Even if a constitutional violation occurred, qualified immunity nevertheless applies unless the violation was clearly established. Because no analogous case existed at the time of the shooting, we hold that the district court erred in denying Gutierrez qualified immunity for this claim.

She agreed with Pregerson, however, that liability might exist in connection with the prolonged handcuffing, not withstanding Gutierrez having nothing to do with the length of the detention.

“A police officer need not have been the sole party responsible for a constitutional violation before liability may attach,” Nguyen wrote.

Liability may be predicated on “integral participation” in a rights violation, she said, adding:

“[U]nder our case law. an officer could be held liable where he is just one participant in a sequence of events that gives rise to a constitutional violation.”

She observed:

“Here, it was soon apparent to the officers that the teenagers were unarmed, posed no threat to anyone, and were not engaged in any criminal activity….We agree with the district court that under these circumstances’ Plaintiffs’ continued detention for five hours—well after any probable cause would have dissipated—and the use of handcuffs throughout the duration of the detention violated Plaintiffs’ clearly established Fourth Amendment rights to be free from unlawful arrest and excessive force.”

She added that “viewing the evidence in the light most favorable to Plaintiffs, Gutierrez was more than a ‘mere bystander’ in the alleged constitutional violations.”

The case is Nicholson v. Gutierrez, 17-56648.


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