LEGALUPDATES.COM

• Gang-Tackling an Arrestee and the Issue of Excessive Force:
• Qualified Immunity as it Relates to the Use of Excessive Force:

The use of force to make an arrest, such as by “gang-tackling” a suspect, is potentially unconstitutional absent some articulable justification for doing so.  A law enforcement officer, however, may be protected from civil liability via the theory of “qualified immunity” unless the circumstances under which the force used have previously been found to be unconstitutional under “clearly established” appellate court case law.

Henderson Police detectives suspected Daniel Andrews of committing a series of armed robberies at various businesses in Henderson, Nevada.  On January 3, 2017, the detectives were surveilling a woman suspected of assisting in those robberies.  The detectives followed her while in the company of a man—later determined to be Andrews—to the Henderson Municipal Courthouse and watched as they entered the building.  To enter the Courthouse, they had to pass through a security checkpoint that included a metal detector and x-ray scanner.  The plan was to arrest the couple when they came out.  Twenty minutes after entering the Courthouse, Andrews and the woman reemerged.  Detectives Phillip Watford and Karl Ippisch—both in plain clothes—walked nonchalantly up to Andrews. Without identifying themselves, they “gang-tackled” Andrews, knocking him to the ground.  Detective Watford led the charge with Detective Lippisch piling on top of the two of them while Watford handcuffed Andrews.  This surprise attack on Andrews fractured his hip, causing him “excruciating pain.” The injury eventually required two surgeries to repair.  (The fracture was described as an “acetabular fracture,” which is a fracture that is caused by a “high-energy impact to the bone.”)  There was no indication in the record that Andrews resisted in any way or attempted to escape.  A “use of force” report was later submitted by Detective Watford to his supervisors, detailing the circumstances of Andrews’ arrest.  Video footage (from an unknown source; likely to be a nearby observer using his or her cellphone camera) also showed the arrest.  After reviewing the circumstances of the takedown and arrest, including watching the video, Henderson P.D. supervisors determined that Andrews’ arrest was accomplished in compliance with Henderson P.D.’s policies and required no further action.  (The case decision did not tell us whether Andrews was ever charged with any criminal offenses.)  Andrews subsequently sued both detectives and the City of Henderson in federal court under authority of 42 U.S.C. § 1983, asserting a Fourth Amendment excessive force claim.  As for the City’s liability, Andrews alleged three theories; (1) failure to train; (2) an unconstitutional custom, practice, or policy; and (3) ratification.  The detectives filed a motion for summary judgment (i.e., asking the trial court to dismiss the case), claiming “qualified immunity.”  The federal district (trial) court denied that motion.  As for the City’s liability, the trial court partially denied the City’s motion for summary judgment, finding that whether or not the City had “ratified” the detectives’ actions (theory #3, above) was an issue for a jury to decide.  Both the detectives and the City appealed.

The Ninth Circuit Court of Appeal affirmed.  “Qualified immunity” from civil liability is actually a backup theory to the corresponding issue of whether or not a law enforcement officer did in fact violate a plaintiff’s constitutional rights, such as (as in this case) by using excessive force.  Courts (and civil defendants) will often skip straight to the issue of qualified immunity for the simple reason that if officers accused of using excessive force are eligible for qualified immunity, then it is irrelevant whether or not they did in fact violate a plaintiff’s constitutional rights.  Law enforcement officers are entitled to qualified immunity from civil liability any time the rule they violated is not already “clearly established” in the law. In other words, law enforcement officers are not required to guess where to draw the line between a lawful use of force and the use of excessive force absent prior judicial guidance that clearly establishes where that line is.  In this case, skipping straight to the “qualified immunity” issue, the Court assumed, without deciding, that “gang-tackling” Andrews under these circumstances constituted an excessive use of force—and thus a Fourth Amendment violation—leaving only the question of whether the officers should have known this (i.e., whether the rule has already been “clearly established”).  The Ninth Circuit has previously discussed the issue of “gang-tackling” an arrestee, holding that: “Neither tackling nor punching a suspect to make an arrest necessarily constitutes excessive force.”  (Italics added; Blankenhorn v. City of Orange (9th Cir. 2007) 485 F.3rd 463, 477.)  While the term “gang-tackling” has never been officially defined, the Blandenhorn Court referred to it as being when “more than one officer uses bodily force to bring an individual ‘to the ground.’” (at p. 478.)  However, as the Court hinted, gang tackling does not always constitute an excessive use of force. Whether or not a constitutional violation has occurred when a suspect is gang-tackled depends upon a consideration of three factors; “(1) the severity of the intrusion on the individual’s Fourth Amendment rights by evaluating the type and amount of force inflicted, (2) the government’s interest in the use of force, and (3) the balance between the gravity of the intrusion on the individual and the government’s need for that intrusion.”  (Rice v. Morehouse (9th Cir. 2021) 989 F.3rd 1112, 1121.)  In applying these standards to this case, the Court determined (under factor #1) “that this use of force by the detectives was ‘substantial’ and, therefore, ‘must be justified by the need for the specific level of force employed.’”  As for factor #2 (the government’s interest), a court is to consider the severity of the crime at issue and whether the suspect posed an immediate threat to the safety of the officers or others or was actively resisting arrest or attempting to evade arrest by flight.  While Andrews’ alleged crimes were indeed serious (i.e., armed robberies), the Court determined that the detectives should have known that he did not pose an immediate threat to their safety, having just passed through a metal detector that indicated he was not armed at the time.  Also, there was no evidence that plaintiff actively resisted or was attempting to escape.  Under these circumstances, the Court determined that the government's interest in using substantial force was minimal.  It was also noted that the detectives failed to present any evidence to the effect that “tackling [Andrews] was the only option available to them.”  Taking these two factors into account (as required under factor #3, above), and the fact that prior case law has clearly discussed these issues, the Court determined that the detectives were adequately put on notice that tackling an unarmed, unresisting suspect, despite the seriousness of his alleged crimes, could well be considered excessive force under the Fourth Amendment. The rules for determining this having been clearly established, the officers should have known this.  Thus, the district court properly denied the detective’s summary judgment motion, leaving the issue of whether the force used by the detectives’ was unconstitutionally excessive for a jury to decide. 

The moral of this story is that if you’re going to pile onto an arrestee’s body, make sure you have some reason for doing so over and above the fact that he “might” try to resist, or that his crime was serious.  Especially since the Minneapolis/George Floyd debacle, you have to know that the public is watching you now with a lot more interest, and is not nearly so likely to just accept your word that the force used was necessary.  You also have to expect that your actions are more likely to be videotaped, what with everyone and his uncle owning, and just itching to use, a cellphone camera.  To avoid civil liability for damaging an arrestee’s body, you’re going to have explain the reasons for your perceived need to use force, and why you thought it was necessary under the circumstances.  As for the City’s liability (i.e., whether the City is civilly liable for having “ratified” the detectives’ actions), the City suggested to the Court that it could use a court’s “pendant jurisdiction” and decide the issue.  “Pendent jurisdiction,” per the Court, refers to the power of an appellate court to review an otherwise non-appealable ruling, at least when it is factually “inextricably intertwined” with an order that is properly before the appellate court.  Again per the Court, a trial court’s ruling on a summary judgment motion that a City is potentially liable for its employees’ constitutional violations under a “ratification theory” is not appealable as a rule, it having previously been held that “a municipality is not entitled to assert the defense of qualified immunity” when ratification is the issue. (citing Hernandez v. City of San Jose (9th Cir. 2000) 204 F.3rd 893, 902.)  The Court declined to use its “pendant jurisdiction” authority here, leaving the district court’s decision (denying the City’s summary judgment motion) undisturbed.  Because (1) this whole concept is irrelevant to the issue of whether gang-tackling a suspect is constitutional, (2) the Court didn’t see fit to elaborate any more on this theory, and (3) I really have no idea what the heck they’re talking about anyway, we need not go any deeper into this issue. 

• V.C. § 17004 and Immunity from Civil Liability by a Law Enforcement Officer
• Gov’t. Code § 821.6 and a Law Enforcement Agency’s Civil Immunity
• V.C. § 17001 and Immunity from Civil Liability by a Law Enforcement Agency

(1) V.C. § 17004 provides a public employee with protection from civil liability for causing injury, death, or damage to property, when the employee uses an emergency vehicle while responding to an emergency call. 

2)  Pursuant to V.C. § 17001, a public entity is civilly liable for death or injury to a person or property proximately caused by a negligent or wrongful act or omission in the operation of a motor vehicle by an employee of the public entity acting within the scope of his or her employment.

In the early (3:37 a.m.) morning of October 14, 2019, Danuka Neshantha Silva was riding with another passenger in the back seat of an Uber (rideshare) vehicle driven by Muhammad Ragowo Reiditio.  While on U.S. Highway 101 (a Southern California freeway) near Encino, Silva and the other passenger apparently began to argue.  Reiditio didn’t like what was going on, so, after calling the California Highway Patrol, he stopped his car in the “number one (fast) lane” of the freeway and demanded that Silva and the other passenger get out of his car.  Reiditio refused to drive onto the shoulder of the freeway or to an exit ramp, necessitating Silva and the other passenger to disembark in the middle of the freeway’s traffic lanes.  Despite other CHP officers responding to Reiditio’s call, CHP Sgt. Richard Scott Langford—who heard the emergency call while inside the CHP’s West Valley Office—decided to also respond to the scene “to see if the first-responding officers ‘needed an additional hand.’” While driving over the speed limit, and without activating his emergency lights or siren, Officer Langford struck Silva as he (Silva) attempted to cross the traffic lanes to the side of the freeway.  Silva died from his injuries sustained in the collision.  Plaintiffs Marakkalage Tharal D. Silva and Shirin Ramesha Silva—Danuka Silva’s parents—sued Officer Langford and the CHP in state court alleging negligence and wrongful death.  The civil defendants filed demurrers to an amended complaint. The trial court found the claims against the civil defendants (Officer Langford and the CHP) were barred by “investigative immunity” pursuant to Government Code section 821.6, granted the demurrers, and dismissed the case in its entirety.  The Plaintiffs appealed.

The Second District Court of Appeal (Div. 7) affirmed as to Officer Langford and reversed as to the California Highway Patrol. 

(1) Officer Langford’s Civil Liability: Vehicle Code § 17004 provides for immunity from civil liability for a “public employee,” as follows:  “A public employee is not liable for civil damages on account of personal injury to or death of any person or damage to property resulting from the operation, in the line of duty, of an authorized emergency vehicle while responding to an emergency call . . . , or when responding to but not upon returning from a fire alarm or other emergency call.”  On appeal, during oral arguments, the plaintiffs’ attorney conceded that Officer Langford was in fact operating his patrol car in the line of duty when he was responding to an emergency call and struck and killed Danuka Silva.  The officer’s failure to use his lights and siren was apparently not an issue in that it was not even discussed.  And the fact that the trial court may have used the wrong immunity statute (i.e., Gov’t. Code § 821.6—historically being used primarily to protect public prosecutors from claims of malicious prosecution—as opposed to V.C. § 17004), was noted to be irrelevant.  Per V.C. § 17004, Officer Langford was immune from civil liability. 

(2) The CHP’s Civil Liability:  The trial court, when it heard the case, granted the CHP’s demurrer, holding that the agency was immune from civil liability under authority of Gov’t. Code § 821.6.  The Court of Appeal ruled that this was error.  After torturing us with a long line of cases (three pages worth) and the disjointed judicial history of section 821.6, dealing with the potential civil liability of both public entities such as the CHP as well as their employees, the Court here determined that it need not decide these issues because, as noted above, (1) Langford, as a public employee, is immune from suit under Vehicle Code § 17004, and (2) the CHP itself may in fact be liable under a whole different section; i.e., Vehicle Code § 17001.  The trial court, in making its ruling, had neglected to consider V.C. § 17001.  Per V.C. § 17001: “A public entity is liable for death or injury to person or property proximately caused by a negligent or wrongful act or omission in the operation of any motor vehicle by an employee of the public entity acting within the scope of his employment.”  Despite some possible contrary inferences made in various civil liability immunity statutes, section 17001 clearly provides for the CHP’s liability in this case.  (See Brummett v. County of Sacramento (1978) 21 Cal.3rd 880, 885-886.)  The Court therefore ruled that the trial court had erroneously granted the CHP’s demurrer and remanded the case to the trial court to correct this error.

This is a very confusing, poorly written case decision with a lot of excess verbiage that was unnecessary to reach the bottom line here, and which the Court could have eliminated from its written decision.  In writing this brief, I ignored the Court’s verbal regurgitations as much as possible without compromising the Court’s relevant conclusions.  So there’s a lot in the Court’s decision that I just glossed over, if I discussed it at all.  That having been said, if, as an attorney (plaintiff or respondent), you have a case involving a law enforcement officer or a public entity’s possible civil liability where statutory immunity may apply, you need to take a look at this case decision as written by the Court to see if there’s anything that‘s relevant to your case.  If as a law enforcement officer, you are sued as a result of your alleged negligence or other wrongful act, you need to direct the attorney who represents you (county counsel?) in civil court to this case decision to make sure your interests are protected. 

• Implied Malice Second Degree Murder
• Driving While Under the Influence of Marijuana

A second degree implied malice murder conviction will be sustained on appeal so long as the evidence is sufficient to show that upon viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt, including that the defendant was subjectively aware that his actions endangered human life.

Davion Demetrious Murphy (defendant) was 19 years old in January, 2018.  He’d been smoking marijuana since the age of 11.  Despite his young age, defendant was well aware of the dangers of misusing marijuana and its potential effects while driving a motor vehicle.  Classified as an “at-risk” youth in 2014, when he was 15, he’d attended a multiday educational program where one of the program’s purposes was to warn participants about the serious potential consequences of driving a motor vehicle while under the influence of alcohol and/or a controlled substance.  During this program, he learned about specific instances of traffic fatalities involving drunk drivers, including several firsthand accounts. Later, in 2016, while applying for a California Driver’s license, defendant acknowledged in the license application “that being under the influence of alcohol or drugs, or both, impairs the ability to safely operate a motor vehicle, (and that) it is extremely dangerous to human life to drive while under the influence of alcohol or drugs, or both.”  Defendant also acknowledged in his license application that, “(i)f I drive while under the influence of alcohol or drugs, or both, and as a result, a person is killed, I can be charged with murder.”  Lastly, evidence at his eventual trial (as described below) also showed that a marijuana container found in defendant’s car after the collision in issue had a warning label attached to it advising users that it was dangerous to drive while under the influence of marijuana. Despite all this forewarning, defendant showed no reluctance to get behind the wheel while stoned. 

On the morning of January 11, 2018, defendant, his cousin (Anthony Brown), and two other friends started smoking marijuana early—before breakfast—at defendant’s home in Lancaster.  After downing a hearty breakfast, and engaging in “a little bit” of dope-inspired rapping, they decided to take defendant’s Lexus to the Eastside Car Wash & Quick Lube to get the oil changed.  Surveillance video at the carwash showed them arriving at 10:39 a.m., with defendant driving.  It also showed the carwash technician backing away from the vehicle and rubbing his eyes when defendant rolled down his window.  The technician later testified to the “strong” odor of marijuana as the smoke flowed from the car.  As the four of them waited while the Lexus was being serviced, they continued smoking their marijuana to the point where the carwash manager had to ask them to stop smoking so close to his office door.  Anthony Brown later testified that he was “feeling woozy” from “the same weed that everyone was smoking.”  Defendant himself was described by others as feeling quite friendly, embracing one employee and “fist bump(ing)” another, before leaving at 11:27 a.m. 

After stopping briefly at a gas station, they headed on their way back to defendant’s home with defendant driving.  At what was later estimated to be over 80 miles per hour in a 40 mph zone, driving on J-8 Street in a residential area, as they were all “laughing and having a good time” (according to witnesses), they came to a red light at a cross street (Challenger Way).  Defendant didn’t even attempt to slow—an allegation supported by the lack of any skid marks—as he blew the light.  Halfway across the intersection, defendant broadsided (T-boned) a Subaru that was attempting to traverse the intersection on Challenger Way.  The three occupants of the Subaru (Yovanny Salazar Calzada, his wife, Rocio Lopez, and grandmother, Virginia Martinez) all died at the scene.  Neither defendant nor any of his passengers were seriously injured.  Three marijuana canisters were recovered from the Lexus, two of which were empty.

Defendant was charged in state court with three counts of second degree murder (P.C. §§ 187(a), 188).  (Vehicle Code violations and attached allegations were dismissed prior to trial at the prosecution’s request.)  During trial, the prosecution used a forensic scientist (Vanessa Meneses) from the toxicology section of the Orange County crime lab as its expert toxicologist to testify to the effects of marijuana upon a person’s ability to drive.  The People also used an accident reconstruction expert (Detective Ryan Bodily) to do just that; reconstruct the details of the collision including the speed of defendant’s vehicle at the point of impact (i.e., 88.1 miles per hour).   Convicted and sentenced to three concurrent terms of 15 years to life in prison, defendant appealed.

The Second District Court of Appeal (Div. 7) affirmed.  Defendant’s primary defense was that it was not he, but rather his cousin—Anthony Brown—who was driving; an assertion the jury didn’t buy despite the fact that immediately after the collision, Brown had been seen exiting the Lexus from the driver’s side door.  In support of the People’s allegations, evidence was presented that defendant told numerous witnesses at the scene that he had been driving; an admission that was consistent with the testimony of other witnesses who saw him behind the wheel.  His secondary defense was that the evidence, as presented, was insufficient to support a second degree murder conviction, arguing that “no reasonable jury could have found he acted with implied malice when he drove his Lexus through the red light at the intersection . . . .” As was argued by the defense:  “(A)lthough the evidence of his conduct may have been enough to sustain a finding that a reasonable person in Murphy’s position would have been aware of the risk involved—which is the standard for ‘gross vehicular manslaughter’—it was not enough to sustain the jury’s finding that Murphy was subjectively aware his actions endangered human life, which was necessary to support an implied malice second degree murder conviction.” (Italics added)  The Court disagreed. 

On appeal, an appellate court must determine whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.  Consequently, “[a] reversal for insufficient evidence ‘is unwarranted unless it appears “that upon no hypothesis whatever is there sufficient substantial evidence to support”’ the jury’s verdict.”  (People v. Zamudio (2008) 43 Cal.4th 327, 357.)  On the issue of a charge of murder, the basic rules are well established even if a bit convoluted.  Murder is defined as “the unlawful killing of a human being with express or implied malice aforethought.”  (Italics added: P.C. §§ 187(a), 188.)  “Malice,” as an element of “murder,” is “express” when a person manifested a deliberate intention to unlawfully take away the life of another human being.  (I.e., a first degree murder.)  It is “implied” (for a second degree murder) when there was no considerable provocation or when the circumstances attending the killing show an abandoned and malignant heart. (People v. Zamudio, supra.)  

As further noted by the Court, “implied malice” has “both a physical and a mental component. The physical component is satisfied by the performance of ‘an act, the natural consequences of which are dangerous to life.’  The mental component is the requirement that the defendant ‘knows that his conduct endangers the life of another and . . . acts with conscious disregard for life.’”  (People v. Soto (2018) 4 Cal.5th 968, 974.)  In other words: “(M)alice may be implied when [the] defendant does an act with a high probability that it will result in death and does it with a base antisocial motive and with a wanton disregard for human life.”  (People v. Watson (1981) 30 Cal.3d 290, 300.)  “Implied malice is determined by examining the defendant’s subjective mental state” to see if he appreciated the risk of his actions.  The death may even be the result of an accident, as it was in this case.  And implied malice may be proven via circumstantial evidence.  It need only be established that the defendant deliberately committed an act, the “natural consequences of which were dangerous to life, with knowledge of the act’s danger to life and a conscious disregard of that danger.”  (People v. Watson, supra, at p. 300.)  It is this “conscious disregard for the danger to life” that distinguishes “implied malice” from a mere “gross negligence.” 

The Court here determined that there was in fact “substantial evidence” supporting the jury’s conclusion that defendant acted with implied malice.  Such a finding by the jury does not require the jury to conclude that defendant was under the influence of marijuana.  Implied malice may exist in the absence of drug use.  However, in this case, the prosecution presented sufficient evidence from which the jury could reasonably infer that defendant was in fact driving while under the influence of marijuana when he ran the red light and crashed into the Subaru.  During the trial, the People presented evidence from an expert toxicologist who testified that while there is no way to determine the degree of impairment caused by smoking marijuana, as there is when alcohol consumption is the issue, other evidence was presented to support a finding that defendant was in fact impaired by marijuana before and during the accident, having smoked it a number of times immediately preceding the collision.  The People’s toxicologist expert provided evidence as to the general effects of marijuana consumption on one’s ability to drive, leading to the inference that defendant’s dangerous driving was due to his consumption of marijuana.  Although the record does not contain evidence as to the amount of marijuana defendant smoked, or its potency, the toxicology evidence (from a blood test obtained some four hours after the collision) showed that defendant had a significant quantity of psychoactive THC in his blood after the accident, which indicated he had recently ingested marijuana. Based on the quantity of psychoactive THC in defendant’s blood, the toxicology expert hypothesized that a similarly situated person would likely have been actively impaired at the time of the collision.   Defendant’s observed actions immediately before the fatal collision support this conclusion; e.g., embracing and “fist bumping” carwash employees and “laughing and having a good time” as he sped down J-8 Street in a residential area at nearly 90 miles per hour.  The Court further rejected defendant’s contention that the knowledge he had gained at the “at-risk” youth program he’d attended some years earlier, his driver’s license application process, and the warning label on a marijuana canister found in his car, were insufficient to prove his subjective awareness of the dangers involved in the driving of a motor vehicle while under the influence.  Prior case law has held that such warnings are sufficient evidence to prove such awareness.  The Court also rejected defendant’s argument that the People failed to prove that defendant was subjectively aware that he was under a drug’s influence and thus impaired, finding to the contrary; i.e., that defendant’s actions themselves were sufficient to prove this element.  Also, the Court ruled that “(i)f a person knows—for example, from prior experience with drugs and alcohol or from warnings the person received—that driving under the influence of such substances is extremely dangerous, then ingesting marijuana, and proceeding to drive, could readily be deemed to establish ‘conscious disregard’ for the lives of others, satisfying the intent element for implied malice.”  The evidence as presented at defendant’s trial was sufficient to prove this fact.  The Court further held that there is no legal authority for the argument that prosecutors were required to prove that a defendant possessed a subjective awareness of his or her level of intoxication. 

Lastly, the Court rejected defendant’s arguments concerning the alleged insufficiency of an accident reconstruction expert’s testimony which was used by the prosecution to establish the speed of defendant’s Lexus at the instant it collided with the Subaru, and lay witness testimony concerning Murphy’s estimated speed while driving on J-8 Street.  First, Murphy failed to object to such testimony at the time, relying instead upon the argument that Anthony Brown was the actual driver.  Secondly, such evidence is generally admissible, it’s value going to the weight of such evidence and not its admissibility; an issue to be determined by a jury.  And lastly, cases concerning lay opinion testimony uniformly hold that such a lay opinion based on a witness’ personal observation, including an estimate of the speed of a vehicle, is admissible.  (E.g., People v. Chapple (2006) 138 Cal.App.4th 540, 547.)  Defendant’s conviction was therefore affirmed, although remanded to the trial court to correct an error in the abstract of judgment

I suspect that “driving while under the influence of marijuana” cases have become more and more prevalent since California fully legalized the possession and consumption of the stuff.  As such, this excellent case is must-reading for any prosecutor before trying such a DUI/marijuana case, providing all the necessary evidence to secure a conviction.  Police officers should also be familiar with this case so they can do their job in providing the prosecution with the necessary evidence.  The toxicologist’s testimony is described in the opinion in excruciating detail, as well as the Court’s explanation as to its relevance in a DUI/drug case.  Also, this case is doubly important as an example on what is needed to convict a DUI (drugs or alcohol) defendant of second degree, implied malice murder involving a vehicle collision and a death.  The accident reconstruction expert’s important evidence, also described in detail, is but icing on the cake, even though necessary icing.  Great job done by LA DDAs Yoobin Kang Hernandez and Casey Higgins, of the LADA’s DUI Training and Prosecution Section (at the time), generating a great case for the People.