|
Law
Watch Archive
Posted: September 1, 2005
Smith v. City of Hemet (9th Cir. 2005) 394 F.3d 689.
Deadly force redefined.
In a case involving a K-9 bite-and-hold technique,
the Ninth Circuit has overruled its previous definition of
"deadly force," which previously meant the use of force
reasonably likely to kill. The new definition, which is much
broader, includes force which "creates a substantial risk of
causing death or serious bodily injury." The court did not say
what kind of injury would be serious enough to meet this
definition.
A "substantial risk" may be far less than a
"likelihood," and "serious bodily injury" might result from not
only K-9 bites, but also less-lethal weapons, batons,
flashlights, and even fists and feet.
From a civil liability perspective, this broader
definition is significant because the Supreme Court has held
that deadly force may not be used except in self-defense or
defense of others, or to prevent the escape of a dangerous
offender. Tennessee v. Garner (1985) 471 US 1. Whenever officers
use any force that might cause serious bodily injury, the
suspect could potentially file a federal lawsuit and contend
that the use of "deadly force" was not warranted under Garner's
stringent standard. Greater civil litigation of these claims
seems inevitable.
The City sought review of the Smith decision, but
the US Supreme Court declined to grant further review. Agencies
would now be well-advised to consult their legal advisors for a
review of their use-of-force policies, and to consider whether
new or additional officer training may be required, especially
on the subject of documentation of use of force in reports.
Moreno v. Baca (9th Cir. 2005) 400 F.3d 1152.
Probation & Parole Search Dichotomy
In People v. Reyes (1998) 19 Cal.4th 743, the
California Supreme Court ruled that it is NOT necessary for
officers to have a reasonable suspicion to justify a probation
or parole search. This is the rule that will apply in
state-court prosecutions.
However, a three-judge panel of the Ninth Circuit
ruled in the Moreno opinion that reasonable suspicion IS
required for probation and parole searches. This is the rule
that will apply in federal-court prosecutions and federal civil
rights cases.
The County of Los Angeles, which is the defendant
in the Moreno civil suit brought by Richard Moreno, has
petitioned the Ninth Circuit for en banc rehearing before a
panel of 11 judges. No decision has been announced as to whether
rehearing will be granted; however, the Ninth Circuit did order
Moreno’s attorney, Stephen Yagman, to file a responsive brief—a
step that would be required before rehearing could be granted.
POALAC will continue to monitor the status of the
Moreno case and report developments in future postings to Law
Watch. In the meantime, officers should be aware of the
potential civil liability risks involved in making a probation
or parole search without reasonable suspicion.
Crawford v. Washington (2004) 541 US 36.
Some Witness Interviews Are Now Inadmissible In
Evidence.
Previously, a witness's account of the defendant's
crimes could be admitted at trial under various hearsay
exceptions if the witness recanted or was otherwise unavailable
to testify at trial. This evidentiary rule was especially
important in domestic violence cases, gang cases, child abuse
cases and elder abuse cases.
But the Supreme Court, overruling 25 years of
precedent, has now ruled that if the out-of-court statement
amounts to "testimonial hearsay," it cannot come in at trial
unless the defendant has an opportunity to confront and
cross-examine the declarant, either at trial or some earlier
proceeding.
A statement is "testimonial hearsay" if it was
produced by "structured police questioning." For example, if an
officer responds to a DV call and asks a series of pointed
questions of the victim, her responses would be "testimonial
hearsay." If she cannot be confronted by the defense, her
statement cannot be admitted at trial, even if she is
uncooperative or unavailable.
Since its issuance last year, the Crawford decision
has resulted in numerous reversals of convictions and is now
regularly cited by defense attorneys in seeking to prevent the
evidentiary use of victim and witness statements.
First responders and follow-up interviewers can
limit the effects of Crawford by asking a single general
question, calling for a narrative response from the witness or
victim, such as "What happened?" Safety and control permitting,
the witness could then be permitted to give a full account of
what happened—without interruptions or clarifying questions from
the officer. This narrative statement should not qualify as
"testimonial hearsay," since it did not result from "structured
police questioning." Thereafter, necessary follow-up questions
could be asked, with the understanding that Crawford would apply
to the answers if the witness does not become subject to defense
confrontation.
Retraining may be appropriate for field officers
and special victim interviewers to acquaint them with the
Crawford ruling and its impact on their questioning techniques
and timing.
Warrick v. City of Los Angeles (2005) 35 Cal.4th 1011.
Change in the Standard for Pitchess Review of
Personnel Files.
On a showing of good cause, a criminal defendant is
entitled to discovery of relevant documents or information in
the personnel records of a police officer accused of misconduct
against the defendant. To make the showing of good cause, the
defendant must show how the sought records are material to an
issue in the case, and must allege a reasonable belief that such
records are in the custody of the employing agency.
The showing of materiality has sometimes been held
to require that the defendant show a "reasonable probability"
that his alleged scenario of events actually occurred. However,
in Warrick, the California Supreme Court ruled that defendants
need only demonstrate that the scenario of alleged officer
misconduct “could or might have occurred.” If this showing is
made, the department must deliver the personnel files to the
court for an in camera review by the judge.
Since almost any plausible scenario might have
occurred, this decision sets a very low threshold for defendants
to meet in order to be entitled to an in camera review of the
officer’s personnel files to identify disclosable records. The
likely result will be more Pitchess motions being filed by
defendants, sending courts on a fishing expedition through
witness-officers' personnel records in search of discovery
materials.
Cornejo v. County of San Diego, No. 05-CV-726 H
Pending Lawsuit Alleges Violations of
Consular-Notification Duties
Under the Vienna Convention on Consular Relations
and Penal Code § 834c, officers are required to advise known or
suspected foreign nationals of their right to notify their
country’s consul of their arrest. In some cases, direct notice
to the foreign consul is mandatory. This advice to arrestees is
required upon arrest and booking, or when the person is detained
for more than 2 hours.
In this federal lawsuit, it is alleged that Mr.
Cornejo, who is a citizen of Mexico, was not advised as required
by the VCCR and 834c. He seeks damages from the County of San
Diego, and he seeks a class certification to allow him to sue on
behalf of every Mexican citizen arrested by the San Diego
Sheriff’s Department for the preceding 2 years (the SOL for
civil rights cases).
On June 14, 2005, US District Judge Marilyn Huff
dismissed Cornejo’s lawsuit, ruling that he had not stated a
proper claim for damages under federal law. Cornejo filed an
appeal to the Ninth Circuit, where the matter is now pending. If
the lower court’s ruling is ultimately affirmed, the case will
not go to trial. If the ruling is reversed, further litigation
will be necessary.
This lawsuit points up another reason why officers
should be adequately trained to comply with the VCCR and 834c.
POALAC will continue to monitor the status of the
Cornejo case and report developments in future postings to Law
Watch. |
