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Ninth Circuit Senior Judge: District Court Failed to Abide by 2018 Panel’s Mandate
By a MetNews Staff Writer
A senior judge of the Ninth U.S. Circuit Court of Appeals on Friday, in a dissent, chided a District Court judge for failing, on remand, to abide by the mandate in the 2018 opinion reversing the summary judgment he had granted in favor of an officer who fatally a suspect and accused his colleagues on the panel of likewise failing to honor that earlier decision.
The dissenter was Carlos Bea. Comprising the majority were Judges Morgan Christen and Anthony D. Johnstone.
In a memorandum opinion, the majority held that District Court Judge Anthony W. Ishii did not sidestep the 2018 opinion when, on remand, he granted partial judgment on the pleadings in favor of California Highway Patrol Officer Hipolito Pelayo on state-law claims of negligence in connection with his Nov. 13, 2012 fatal shooting of Cecil Ray Elklns Jr. In that earlier decision, the majority—comprised of Circuit Judge Susan Graber and District Court Judge Michael H. Simon of the District of Oregon, sitting by designation—said:
“After concluding that Elkins was reaching for his waistband just before Officer Pelayo opened fire, the district court granted summary judgment in favor of the officer under the doctrine of qualified immunity. Elkins was unarmed at the time he was killed, he had no history of carrying firearms, no one had told the police that Elkins was armed or had a history of using a gun, no officer at the scene saw Elkins with a gun, no officer warned Elkins that he would be shot if he failed to stop, and Elkins was running away from the police to avoid apprehension. Because we conclude that a reasonable jury could find it more likely than not that Elkins was not reaching for his waistband just before he was shot, we reverse and remand.”
Then-Judge (now Senior Judge) N. Randy Smith dissented.
Negligence Claim
On remand, a jury found in favor of the officer on the claim of excessive force, in violation of the Fourth Amendment. What Bea took issue with was Ishii having taken from the jury the matter of Pelayo’s alleged negligence, under California law.
Elkins’s family members contended that the officer was negligent in making the decision to arrest Elkins, failing to use non-lethal means of stopping him as he fled, and in pursuing him in light of other officers being in a position to block him.
The majority said, on Friday:
“The genuine disputes of fact underlying our remand on Fourth Amendment grounds did not relate to, or undermine, the district court’s factual findings concerning the pre-shooting negligent tactics claim the Elkinses advanced.”
It added:
“Because our mandate did not foreclose further consideration of the negligent tactics claim, the district court appropriately precluded the Elkinses from pursuing it at trial.”
Bea’s Dissent
Bea protested:
“The language of the panel’s memorandum disposition compels the conclusion that the district court’s grant of summary judgment in favor of Pelayo was reversed in toto. As a result of the language of reversal, I would reverse the district court’s dismissal of the Elkinses’ state law wrongful death (negligence) claim because the district court failed to comply with our prior panel’s mandate.”
The majority said in the 2018 opinion:
“Plaintiffs’ state law claims are analyzed under the same standard of objective reasonableness used in Fourth Amendment claims.”
Friday’s majority pointed out:
“California courts analyze negligence claims, such as the Elkinses’ negligent tactics claim, under a different standard.”
2018 Error
Bea wrote:
“The Elkins I panel may have misstated the applicable legal standard for the Elkinses’ state law negligence-based wrongful death claim, as the majority points out. Notwithstanding this apparent error, however, the prior panel explicitly included this state law claim in its judgment of reversal when it referenced ‘Plaintiffs’ state law claims’ generally and without qualification….Such language expresses no intention to exclude any of the claims that were before the Elkins I panel. I am therefore unable to accede to the majority’s position that the district court’s grant of summary judgment as to the wrongful death claim was not ‘expressly discussed and decided’ in Elkins I….
“When a Court of Appeals enters an unqualified judgment of reversal, the result is that the district court must vacate the decision appealed from….Here, the district court was required to vacate the entry of summary judgment in favor of Pelayo as to all the claims against him. federal and state. That the district court did not do. Instead, it reaffirmed its vacated summary judgment order as to the Elkinses’ state law wrongful death claim when it granted Pelayo’s pre-trial motion for partial judgment on the pleadings, which the district court construed as a motion in limine.”
He went on to say:
“I conclude that the district court was without authority to second-guess the Elkins I panel’s basis for its clearly stated conclusion that the district court’s prior grant of summary judgment as to all federal and state law claims was reversed. Pelayo could have filed a petition for rehearing or petition for rehearing en banc of the prior panel’s decision if he believed the Elkins I panel erred in its statement of the applicable legal standard for state law negligence causes of action. Pelayo did not petition for rehearing or rehearing en banc.
The case is Estate of Elkins v. Pelayo, 22-16027.
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