Page 3
Ninth Circuit:
Siblings Have No Associational Claim Over Fatal Shooting
By a MetNews Staff Writer
The Ninth U.S. Circuit Court of Appeals, which has waffled on the question of whether the siblings of a man who was fatally shot by Sacramento police can maintain an action for the loss of a right under the First Amendment to familial association, has decided that a cognizable claim has not been stated, reversing an order denying a motion for dismissal with prejudice based on qualified immunity.
Then-Officers John C. Tennis and Randy R. Lozoya took part in the shooting of Joseph Mann, 51, on July 11, 2016. Fourteen of their 18 shots hit him.
He had been on a public street, acting erratically, wielding a knife, when the officers chased after him in their squad car, allegedly attempting to run him down, then pursuing him on foot. A postmortem report showed that Mann was under the influence of methamphetamine.
The ex-officers—who were cleared by the District Attorney’s Office but not by an internal affairs investigation—are being sued by two brothers and a sister of the decedent. Two other siblings initially also sued but dropped out as plaintiffs in the course of the litigation, which has bobbed between the District Court for the Eastern District of California and the Ninth Circuit.
The case drew press attention based on allegations that the shooting of Mann was racially motivated—he was an African American—and that he displayed obvious symptoms of being mentally ill.
Shubb’s Initial Decision
On Sept. 19, 2017, District Court Judge William B. Shubb granted defendants’ motion to dismiss a civil rights action under 42 U.S.C. §1983 based on a Fourteenth Amendment claim for loss of companionship, holding that the Ninth Circuit limited such claims in its 1991 decision in Ward v. City of San Jose to parents and children. However, Shubb denied a motion to dismiss a claim under the First Amendment, reasoning that it is authorized by the U.S. Supreme Court’s 1987 holding in Board of Directors of Rotary International v. Rotary Club of Duarte.
There, the court affirmed the California Court of Appeal’s decision that, under the Unruh Act, the Rotary International may not bar the chapter in Duarte from admitting women. Justice Lewis F. Powell Jr. wrote that “[t]he evidence in this case indicates that the relationship among Rotary Club members is not the kind of intimate or private relation that warrants constitutional protection,” but also said:
“The Court has recognized that the freedom to enter into and carry on certain intimate or private relationships is a fundamental element of liberty protected by the Bill of Rights. Such relationships may take various forms…[including] cohabitation with relatives….Of course, we have not held that constitutional protection is restricted to relationships among family members.”
2018 Opinion
On Sept. 7, 2018, the Ninth Circuit, in a memorandum opinion, reversed Shubb’s order to the extent it denied dismissal of the action based on the First Amendment, saying that the plaintiffs “have not alleged specific facts sufficient to show that any of them shared with Joseph a relationship of a type discussed” in Rotary Club. It was added that “even if plaintiffs could plead sufficient facts to satisfy the standards for intimate association set forth in Rotary Club, relief would be foreclosed” under Ward.
In Ward, it was held that while parents and children have a liberty interest in continued society with their offspring, “an interest for siblings consonant with that recognized for parents and children” does not exist.
However, the decision was left to Shubb whether to grant leave to amend.
Circuit Judges (now Senior Judges) Diarmuid F. O’Scannlain and Carlos Bea were on the panel, along with District Court Judge Richard G. Stearns of the District of Massachusetts, sitting by designation.
Not a ‘Cohabitant’
On remand, Shubb granted leave to amend, and the plaintiffs proceeded to aver in the first amended complaint (“FAC”) that they did “co-habitate” with the decedent—in the broad sense of the word, connoting residing together. However, on March 13, 2019, Shubb dismissed the action without leave to amend, concluding that “the First Amended Complaint paints decedent not as a cohabitant but more a transient who was a frequent, and welcome, invitee in plaintiffs’ respective homes.”
Back the case went to the Ninth Circuit. This time, the panel was composed of Circuit Judges Ronald M. Gould and Morgan Christen, joined by District Court Judge Robert S. Lasnik of the Western District of Washington, sitting by designation.
That panel said on April 30, 2020, that the 2018 decision—which it denominated Mann II—“may have caused confusion on remand.”
Earlier Decision Dissected
The judges wrote:
“We conclude that Mann II’s statement that Ward ‘would’ foreclose Plaintiffs’ First Amendment claim ‘even if’ they had pleaded sufficient facts…is dicta….First, Ward did not create a cohabitation requirement or purport to govern First Amendment claims; Ward addressed only Fourteenth Amendment intimate-association claims brought by adult siblings….
“Second, Mann II cited the Rotary Club line of cases in addressing the sufficiency of Plaintiffs’ First Amendment allegations, and it recognized that cohabitation was one of several objective indicia that courts may consider when assessing whether Plaintiffs were deprived of their intimate-association right….
“Finally, Mann II could not have held that Ward forecloses Plaintiffs’ First Amendment claim because it expressly decided that the district court could allow Plaintiffs to amend on remand.”
The U.S. Supreme Court denied certiorari on Oct. 19, 2020.
Mixed Signals
On remand, a perplexed Shubb declared in a Feb. 24, 2021 order that he had received mixed signals from the two opinions—terming them “plainly contradictory”—but, given that Mann III was the more recent pronouncement, he said, he would follow it. He observed:
“Mann III did not purport to define exactly how far a claim for intimate association under the First Amendment extends, but the fact that the Ninth Circuit reversed this court’s dismissal of plaintiffs’ claim under the First Amendment…implies that, at least in certain circumstances, the right of siblings to intimately associate falls within the First Amendment’s ambit.”
He returned to his initial position that, under Rotary Club, the plaintiffs’ First Amendment survives a motion to dismiss for failure to state a claim. He set forth:
“Applying the factors outlined in Rotary Club and its progeny to the allegations in the FAC, it is clear that plaintiffs’ alleged relationship with Joseph was more intimate and personal than that between members of a large fraternal organization like the Rotary Club. In terms of the first Rotary Club factor, size, each plaintiffs relationship with his or her brother involved only two people, and was enmeshed within a ‘tightknit family unit’ of five children and two parents….This is much more akin to relationships that the Ninth Circuit has granted protection under the First Amendment.”
Third Reversal
On Tuesday, Shubb was, again, reversed. The panel was comprised, as in 2020, of Gould, Christen, and Lasnik.
It said:
“Neither plaintiffs nor the district court point to any authority that has applied the Rotary Club factors and held that non-cohabitating siblings have a First Amendment right to familial association….Rotary Club did not recognize such a right.”
The court went on to say:
“On remand, the district court analyzed Rotary Club and its progeny and determined that plaintiffs sufficiently alleged a First Amendment violation….We disagree.
“Neither Rotary Club nor its progeny extended the First Amendment to cover the circumstances alleged here.”
The case is Mann v. City of Sacramento, 21-15440.
Litigation against the City of Sacramento, its police department, and a former police chief based on the 2016 shooting continues.
Copyright 2022, Metropolitan News Company