Monday, May 18, 2026
Page 3
Ninth Circuit:
Qualified Immunity Applies Where Victim Was Bullied by Police
Woman Who Was Victim of Severe Beating, Attempted Rape, Was Told by LAPD Officer That If Culprit Pressed Charges Against Her, She Could Go to Jail, Deterring Her From Making Complaint; Nguyen Dissents
By a MetNews Staff Writer
The Ninth U.S. Circuit Court of Appeals has conferred qualified immunity on a Los Angeles police officer who told the victim of a severe beating and an attempted rape that if she pressed charges against her attacker, whom she was then dating, the man might seek her arrest as the aggressor in which event she would go to jail—drawing a dissent by Circuit Judge Jacqueline H. Nguyen.
That dissent argues that “the majority’s decision is untethered to the facts and the law.”
In a memorandum opinion filed Thursday, there was a reversal of an order by Senior District Court Judge James V. Selna of the Central District of California denying qualified immunity to Officers Nelson Martinez and Wessam Ismail. Signing the opinion were Ninth Circuit Judge Daniel Aaron Bress, joined by Fifth Circuit Judge Stephen A. Higginson, sitting by designation.
It was determined on Nov. 4, 2024, by a panel—comprised of Bress, Judge Sandra Ikuta, since deceased, and a visiting judge from the state of Washington—that Joy Scherer did adequately plead retaliation for attempting to exercise her First Amendment rights in the aftermath of an assault in her apartment on Oct. 31, 2020, by one Maxwell Bravo, whom she had been dating.
2024 Decision
The court said in that 2024 decision:
“The district court erred in dismissing Scherer’s 42 U.S.C. § 1983 claim for First Amendment retaliation. Taking the facts in the light most favorable to Scherer, Officer Martinez’s statement to Scherer that her attacker, Max Bravo, had the right to press charges; that if Bravo pressed charges ‘you’re going to go [to jail]’ right now; and ‘[t]hat’s how private persons arrest works’ would have chilled a person of ordinary firmness from exercising the First Amendment right to press charges. Contrary to the district court’s conclusion, Scherer has plausibly alleged that Martinez’s statement that Scherer would go to jail too was a threat, not a statement of law, given that Bravo had already told Officer Martinez that he did not want to press charges, and that California law requires officers to discourage the dominant aggressor (in this case, Bravo) from pressing charges, even if he had expressed a wish to do so.”
That panel specified:
“On remand, the district court may address, in the first instance, whether the officers are entitled to qualified immunity because Scherer failed to allege a violation of a ‘clearly established’ constitutional right.”
Absent the violation of a federal statutory or constitutional right that is “clearly established,” state and local actors, sued for civil rights violations, enjoy immunity.
Majority Opinion
The majority declared on Thursday:
“Scherer cites no case or body of case law clearly establishing a First Amendment violation in a situation like this one, where a police officer is responding to the scene of a domestic assault and advising both parties about their respective rights to press charges, even when advisals about going to jail are plausibly regarded as threats that would chill a person of ordinary firmness from pressing charges.”
As Bress and Higginson summarized the facts:
“Bravo told the officers that Scherer had been the initial aggressor and had thrown the first blow. Officer Martinez then told Scherer that if Bravo pressed charges, he would have to arrest her. Officer Martinez did not tell Scherer that if she pressed charges, he would have to arrest her. And, although Bravo had earlier told Officer Martinez he did not wish to press charges, Officer Martinez could not know if Bravo would change his mind, and so he framed his communications with Scherer in conditional terms.”
The judges declared:
“That Scherer plausibly alleged Officer Martinez’s communications could be interpreted as threats does not make the asserted constitutional violation here clearly established.”
Nguyen’s Dissent
Nguyen told of what occurred prior to the arrival of the police and then provided an account of what happened after they showed up differing from the majority’s recitation.
Relying on the allegations of the complaint and what was reflected by a recording made on Martinez’s bodycam, she related:
“On October 31. 2020. Maxwell Bravo brutally beat and attempted to rape Scherer. whom he had been dating. At one point. Bravo broke down the bathroom door behind which Scherer had been hiding, dragged her out by her hair, and beat and attempted to rape her. Scherer tried to fend him off as Bravo ripped her clothes and bit, punched, kicked, and struck her. Bravo eventually threw Scherer and her belongings outside, but then followed her and attempted to drag her back into his apartment by her hair. He then ‘began beating her head against [a] metal railing; A bystander yelled at Bravo to stop and said that the police were on their way.
“A witness had called the police and reported that a man was beating a woman at Bravo’s apartment. Los Angeles Police Department officers responded and, before they entered the apartment complex gate, heard Scherer screaming.”
Information Withheld
The jurist went on to say:
“Scherer…told Officer Martinez that she wanted to press charges against Bravo. Despite knowing that Bravo had already declined to press charges, Officer Martinez told Scherer that Bravo also had the right to make a private person’s arrest and that, if ‘he wants to press charges, you will be going to jail too.’ Scherer, still crying, said that she did not want to go to jail, and Officer Martinez replied that ‘she would be going to jail right now.’ At no point did Officer Martinez inform Scherer that Bravo had already declined to press charges. Scherer alleges that this omission was deliberate and designed to dissuade her from exercising her rights. Believing that pressing charges would lead to her own arrest, Scherer chose not to do so. Bravo was eventually charged and criminally convicted of domestic violence with corporal injury.”
She declared:
“Here, the nature of Officer Martinez’s statement is dispositive. The majority draws inferences in Officer Martinez’s favor by characterizing his conduct as merely ‘advising both parties about their respective rights to press charges.’…That characterization cannot be squared with our prior decision, which held that Officer Martinez’s statement would have chilled a person of ordinary firmness from exercising the First Amendment right to press charges.”
‘Clearly Established’
Maintaining that the facts show a breach of “clearly established” rights, Nguyen wrote:
“Here, existing precedent provided ample notice. We have long held that public officials may not threaten retaliation for engaging in First Amendment activity, including petitioning….We have likewise repeatedly recognized that arrest and jailing are paradigmatic forms of unconstitutional retaliation….
“Taken together, these authorities ‘clearly establish’ the unconstitutionality of the officers’ conduct.”
The case is Scherer v. Ismail, 25-2651.
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