Six Bad Rounds After "Excitement of the Chase" Could Mean Huge Trouble

ADAMS v. SPEERS, USCA-9 No. 05-15159, 2007 U.S.App. LEXIS 442, appeal from USDC-CAED, before Noonan, Hawkins, and Thomas, Circuit Judges, opinion by Noonan filed 10 Jan 2007.

LONG STORY SHORT: Officer who joined chase, ran subject vehicle off the road, and shot vehicle's driver to death for no apparent reason was not entitled to qualified immunity. Binding in AK, AZ, CA, HI, ID, MT, NV, OR, WA.

FACTS: According to Plaintiffs, on the afternoon of 26 June 2001, Decedent borrowed his mother's 1998 Ford Expedition and ran several stop signs in the presence of a Merced County Sheriff Department detective. Decedent did not stop for the detective's emergency lights, and eventually four Merced County and two California Highway Patrol vehicles pursued the Expedition at speeds below posted limits. CHP Officer Speers, sitting in his marked patrol car within view of traffic as a speeding deterrent, heard the radio traffic, went to pick up a probation officer friend as a ride-along, and waited on the roadside where the pursuit was headed. When the Expedition passed by, Officer Speers tried to ram the Expedition but missed, and assumed the lead position in the pursuit set without radioing his intentions to the other units.

The pursuit continued for over 30 minutes until Officer Speers rammed the Expedition, creating a significant traffic hazard but not ending the pursuit. 9 minutes later, the Expedition U-turned through the median to avoid a traffic blockage ahead, and Officer Spears followed him and finally rammed him off the road, coming to rest so close to the Expedition that Officer Speers dinged it when he opened his door. As the other LE vehicles surrounded the Expedition, it slowly backed up and Officer Rivera was able to approach on foot and break the driver side window. Before Officer Rivera could pepper-spray Decedent, Officer Speers ran in front of the Expedition and, while it was still backing away from him, presented his service sidearm and fired six rounds, killing Decedent.

CHP's internal investigation recommended that adverse action be taken against Officer Speers because he violated CHP policy by: not wearing body armor; picking up an unauthorized passenger; failing to communicate with the other units in the pursuit; pursuing in an unfamiliar area; use of force without authorization to stop the pursuit; putting his car too close to the Expedition during the final stop; and firing without a clear background. Two other officers testified in deposition that they saw no reason for Officer Speers' firing at Decedent. Officer Speers testified in deposition that he did not fire to protect other officers.

PROCEDURE: Decedent's parents sued Officer Speers in U.S. District Court for the Eastern District of California under 42 U.S.C. § 1983 for violating Decedent's Fourth Amendment right to be free from unreasonable seizure, and under California state wrongful death law. Officer Speers moved for summary judgment on qualified immunity grounds, but the trial court ruled that material facts were still in dispute and that under the version of the facts most favorable to Plaintiffs, no reasonable officer would have resorted to deadly force and Officer Speers was not entitled to qualified immunity. SUMMARY JUDGMENT DENIED. Officer Spears immediately appealed the qualified immunity denial to the U.S. Court of Appeals for the Ninth Circuit. In his appellate brief, the California AG disputed a number of facts.

DECISION: Disputed facts deprive an appellate court of subject matter jurisdiction to hear an interlocutory appeal from denial of qualified immunity. However, the Ninth Circuit decided the appeal under Plaintiffs' version of the facts. Given that Officer Speers left his assigned static position, picked up an unauthorized passenger to enjoy the excitement of the chase, not radioing his intentions, cutting ahead of all the vehicles already in pursuit, ramming and attempting to ram the subject vehicle, and shooting Decedent without warning even though Decedent posed no immediate danger, a reasonable jury could find that Officer Speers committed an unreasonable seizure in violation of the Fourth Amendment. Denial of qualified immunity AFFIRMED in all respects.

EDITORIAL: Looks like Officer Speers decided to John Wayne it, and will be costing kaLEEfornia a buttload of ching--if and only if we can take the Ninth Circuit's opinion at face value. Instead, I modestly suggest that we try reading between the lines, and then we see that the Ninth Circus Court of Schlemiels has done it AGAIN.

Nowhere in this opinion does the Ninth Circus mention that the Fourth Amendment is not, cannot, and will never be defined by departmental policies. So what if this trooper was not wearing body armor, picked up a ride-along (and by the way, probation officers know a heck of a lot about their probationers and can arrest them for next to nothing so they should be along when possible), didn't call in the pursuit, and stopped too close to the subject vehicle? NONE repeat NONE of that has ANYthing to do with the FOURTH AMENDMENT. In fact, didn't we cover a case in this blog lately that affirmed a trial court's ruling that departmental policies could not come into evidence at all, because they are utterly irrelevant to whether a search or seizure was CONSTITUTIONALLY unreasonable? Ah, but you see, liberals as always must do what liberal politics requires them to do. If the law helps them that's fine, but if the law forbids them to do anything, well they ignore the offending law because they're just above all that.

Note also that Officer Speers admitted that no other officers were in danger, but conveniently absent is whether he thought HE HIMSELF was in danger! Probalee, he had some good reason to believe that, and a grand jury agreed heartily, or else he would have been tried and convicted in state court for murder or manslaughter. Even if the Expedition was backing away, the subject could have been reaching for a weapon and that could well be what Officer Speers saw.

Worst of all, the Ninth Circus thinks that if you've been told to sit beside the road and deter speeders, you MUST STAY THERE even if other officers obviously need assistance. The Ninth Circus will henceforth hammer you if you DARE to join a chase without somebody else telling you to, especially if you have the foresight to position yourself where they're going to be instead of where they've already been! Why, that means you're "off on a mission of your own creation"--their words, not mine. So in the Ninth Circuit, I guess you'd better stay put if you know what's good for you. If a brother or sister officer loses a gunfight because you weren't there to back them up, that is just fine with the Ninth Circus, and then they will spring the murderer because surely some OTHER officer in the heat of the moment violated their Fourth Amendment rights and the evidence has to be suppressed.

Rogue officer? Maybe. Rogue court? You betcha. Please, kaLEEfornia AG, move for rehearing or clarification.