Metropolitan News-Enterprise


Friday, December 11, 2020


Page 1


Ninth Circuit:

Arrestee’s Suit Over Alleged Brutality Properly Rejected

Opinion Says Newspaper Reports Did Not Provide Competent Showing That Orange County Sheriff’s Department Routinely Subjected Arrestees to Excessive Force by Taking Them to Cells With Arms Pinned Behind Backs


By a MetNews Staff Writer


The Ninth U.S. Circuit Court of Appeals has affirmed a summary judgment in favor of Orange County in an action against it alleging that non-resisting arrestees, after being booked by sheriff’s deputies, are routinely painfully escorted to cells with both arms pinned behind their backs, a technique known as “chicken-winging.”

A three-judge panel on Wednesday held that plaintiff Ivin Mood—who was arrested on April 30, 2016, for an alleged battery on a peace officer (by spitting at him)—had failed to show that there are any triable issues of fact in his civil rights lawsuit in which he seeks to have the county held liable for the excessive force allegedly used on him at the County Intake/Release Center (“IRC”).

Under the U.S. Supreme Court’s 1978 decision in Monell v. Department of Social Services of the City of New York, a municipal entity is liable for a constitutional deprivation only if the conduct at issue was pursuant to the entity’s policy or custom.

Mood contended that he made such a showing, sufficient to overcome a motion for summary judgment, by providing reports that appeared in the Orange County Register and the Los Angeles Times of mistreatment of prisoners of the same sort as that he claimed to have suffered, as well as pointing to a 2008 lawsuit brought by a former inmate, along the same lines, which the County of Orange settled.

Mood’s Contentions

The plaintiff maintained that the Orange County sheriffs deputies pursue a “customary practice of unnecessary misuse of force carried out for thrills alone,” pointing to a Times report saying that the deputies that “operate the same way each time, lifting inmates by both arms,” then “[s]lamming them face first into a wall,” and “they then bend the arm behind the persons back, and then they place the inmate in a separate cell.”

It was uncontested that in Mood’s case, he was escorted to a cell with one deputy at one side pinning his left arm behind his back and another at his other side pinning the right arm behind his back.

In the course of being subjected to the “chicken-winging,” Mood asserted, one of his shoulders was injured and, though he “screamed out loudly from the pain,” the procedure continued. The allegation that he was screaming was contested.

(Mood was convicted by a jury of a misdemeanor battery against a peace officer.)

Ninth Circuit Decision

 The panel—comprised of Judge Daniel Aaron Bress and Senior Judges Richard R. Clifton and J. Clifford Wallace—said:

“The district court properly granted summary judgment because Mood failed to raise a genuine dispute of material fact as to whether Orange Comity sheriffs had a policy or custom of excessive force by using rear-wrist lock control holds on compliant detainees during the intake process at the Orange County jail.”

The opinion quotes the Ninth Circuit’s 1996 opinion in Trevino v. Gates as saying:

 “Liability for improper custom may not be predicated on isolated or sporadic incidents; it must be founded upon practices of sufficient duration, frequency and consistency that the conduct has become a traditional method of carrying out policy.”

District Court’s View

The memorandum opinion upheld a judgment of District Court Judge Stephen V. Wilson of the Central District of California.

Initially adopting a recommendation by a magistrate judge that summary judgment be denied the county, Wilson gave further thought to the matter, sought further briefing, and on May 10, 2019, granted summary judgment on his own motion, explaining in a July 25, 2019 order:

“It is true that the question of whether a policy or custom of the unconstitutional application of control holds is normally one for the jury…[H]ere Plaintiff has offered no admissible evidence linking the evidence regarding excessive force used on Plaintiff to any other incidents of the same or similar constitutional violations by Defendant at the IRC or elsewhere.”

Newspaper Reports

Reports in the press, Wilson said, do not constitute evidence. He wrote:

“The only evidence in the record suggesting other incidents similar to Plaintiffs is the newspaper article from the Orange County Register…In fact, the article poses a double hearsay problem; both the article itself, and the statements contained within the article, are out-of-court statements offered for the truth of the matter asserted….

“First, Plaintiff has not attempted to elicit testimony from the reporter who wrote the article in order to authenticate the statements reported in the article….

“Second, even if Plaintiff could provide a basis to admit the news article itself, the statements upon which Plaintiff relies inside the article are also hearsay. Plaintiff seeks to use the article to establish the fact that Defendant has committed other similar acts of excessive force through the use of control holds or chicken winging detainees at the IRC, but the only supporting statements in the article are from individuals describing their personal account of events that transpired at the IRC. These individuals made statements out of court without the possibility of cross-examination, so to accept those statements as true for purposes of Plaintiff’s claim against Defendant would be to rely on inadmissible hearsay.”

Inadequate Information

Wilson went on to say:

“[A]ssuming that the statements contained in the article were admissible, those statements alone are insufficient to create a genuine dispute of material fact as to whether a widespread custom of the unconstitutional use of control holds on compliant detainees exist. None of the statements in the article provide sufficient detail about the circumstances surrounding any of the other alleged incidents to create a triable issue as to whether the officers in those instances used excessive force.”

He dismissed the matter of the 2008 action brought by an inmate, explaining that Mood put forth no evidence that the allegations in that lawsuit were true.

No Impermissibility

Wilson remarked that “chicken winging” is “not a constitutional violation per se,” and declared:

“It may very well be appropriate to use a control hold on a compliant detainee if that detainee poses a sufficient risk to safety if he or she is not so restrained.”

He went on to say:

“[E]ven if Plaintiff was correct that there were 17 instances of unconstitutional use of a painful control hold on a compliant detainee since June 2014, that number is substantially insignificant when considering the fact that over 70,000 individuals are booked in the IRC each year—totaling over 350,000 inmates since June 2014.”

The case is Mood v. County of Orange, 19-56009.

A different panel of the Ninth Circuit on Nov. 30, 2018 affirmed a summary judgment by Wilson in favor of the cities of Costa Mesa and Newport Beach in an action by Mood for alleged deprivation of his constitutional rights based on false arrest and harassment.


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