Metropolitan News-Enterprise


Monday, February 10, 2020


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Ninth Circuit:

Officer Entitled to Immunity in Connection With 2010 Arrest

Panel Upholds Summary Judgment Despite 2016 Decision in Which Majority Said a Jury Should Decide if Excessive Force Was Used in Jumping on Handcuffed Suspect


By a MetNews Staff Writer


A three-judge panel of the  Ninth U.S. Circuit Court of Appeals on Friday affirmed a summary judgment in favor of a police officer accused of using excessive force in making an arrest 10 years ago, rejecting the view expressed by the majority of a different panel in 2016 that a jury could reasonably find the defendant’s conduct to have been unjustified.

Next Friday will mark 10 years since the plaintiff, Aleksandar Mackovski, was arrested, pursuant to a warrant, by Garden Grove Police Department Officer Ray Bex (later a sergeant), the defendant. Charges of possession of marijuana for sale and illegal possession of weapons were not pursued.

Friday’s Ninth Circuit opinion affirms the determination by District Court Judge Cormac J. Carney of the Central District of California that Bex is entitled to qualified immunity because the impermissibility of the amount of force used by Bex was not “clearly established.”

Law of Case

The panel—comprised of Circuit Judges Sandra S. Ikuta, Morgan Christen, and Kenneth Kiyul Lee—said:

“The law of the case doctrine does not apply to Mackovski’s current appeal because the prior panel did not consider qualified immunity.”

One member of the current panel—Christen—was also on the panel that on Nov. 28 2016 reversed the summary judgment Cormac granted to Bex in 2014 on the cause of action for excessive force, in violation of the Fourth Amendment. She and District Court Judge Matthew F. Kennelly of the Northern District of Illinois, sitting by designation, formed the majority; Circuit Judge Richard C. Tallman (now on senior status) dissented as to the reversal of summary judgment on that cause of action, saying he would affirm the summary judgment in its entirety.

While the opinion by Christen and Kennelly did not mention qualified immunity, Tallman did, saying: “I would hold Officer Bex is entitled to qualified immunity.”

Marijuana, Weapons Found

A warrant was issued for Mackovski’s arrest after marijuana and three weapons were found during searches of his home on June 17 and 18, 2010. He sued following his July 14, 2010 arrest for excessive force, as well alleging that officers, during the search, stole a cache of diamonds.

The 2016 panel’s memorandum opinion says:

“We…agree with the district court that a reasonable juror would have to engage in ‘pure speculation’ to find that the police seized $350,000 of diamonds from Mackovski’s room during the search.”

Excessive Force

Addressing excessive force, it declares:

“Mackovski asserts that when the police approached him on the street ‘with guns drawn,’ he ‘immediately went down on the ground.’ Once he was on the ground the officers handcuffed him and then “jumped all over” him. The ‘pressure and pain from when they pushed [his] arms backwards’ allegedly caused him to black out. The hospital report from Mackovski’s visit to Saint Joseph’s Hospital the day after the arrest shows he suffered bruises and abrasions.

“Mackovski had no prior criminal record, the search of his room yielded a relatively small quantity of marijuana, and Mackovski expressed a willingness to meet with the officers when they contacted him by telephone….”

The opinion says that viewing the evidence “in the light most favorable to Mackovski, a reasonable jury could find that he was tackled after he was handcuffed,” concluding that “the district court erred by ruling no reasonable jury could find a Fourth Amendment violation.”

Tallman’s Opinion

Tallman protested:

“At the time of Mackovski’s arrest, Officer Bex had ample probable cause to believe that Mackovski was armed and dangerous.”

He pointed out that Mackovski was linked to a felon who was known to be a methamphetamine manufacturer and distributor, at whose home various weapons were found along a live hand grenade and two bombs that had to be disarmed. Tallman recited that officers had reliable information that additional weapons had been moved to Mackovski’s residence.

“In sum, at the time Officer Bex executed the warrant for Mackovski’s arrest, reasonable officers could objectively believe that they were making a high-risk, felony arrest of a suspect known to carry weapons and involved with others’ serious crimes.”

Tallman added:

“The intrusion on Mackovski’s Fourth Amendment interests was minimal. Mackovski states that during the arrest he was on the ground when officers handcuffed him and then “jumped all over him.” Even assuming that Mackovski’s statement can be construed to mean that Officer Bex “tackled” Mackovski after he was forced to the ground and handcuffed, as the majority suggests, Officer Bex was justified in using force to subdue this dangerous suspect.”

Friday’s opinion says that qualified immunity was appropriately afforded Bex because wrongfulness of his actions was not “clearly established.” It explains:

“Mackovski admits that there is no case directly on point establishing that the force Officer Bex used was unreasonable. Plaintiffs do not need case law that is exactly on point, but existing precedent must place the contours of the right ‘beyond debate.’ ”

Mackovski cited the Ninth Circuit’s 2005 en banc opinion in Smith v. City of Hemet and its 1991 decision in Curnow ex rel. Curnow v. Ridgecrest Police.

In Smith, police, in making an arrest, ordered a dog to bite the suspect. The opinion says:

“Even excluding the question of whether the police dog constituted deadly force, a jury well could find that, given the circumstances, the totality of force used—four blasts of pepper spray, slamming Smith down onto the porch, dragging him off the porch face down, ordering the canine to attack him three times, and the resultant dog bites and physical assaults on his body—was unreasonable.”

Curnow concerned an action by the estate of a man killed in a police shooting. The opinion says that under the plaintiffs’ version, “the police officers could not reasonably have believed the use of deadly force was lawful” because the man who was shot, while in possession of a weapon, “did not point the gun at the officers and apparently was not facing them when they shot him the first time.”

The court in Curnow concluded:

“Thus, viewing the evidence in the light most favorable to the nonmoving party, the defendants-appellants are not entitled to qualified immunity.”

In Friday’s decision, the panel said neither Smith nor Curnow is “sufficient” as support for Mackovski’s and that “Officer Bex is entitled to qualified immunity.”

The case is Mackovski v. Bex, 18-55767


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