LEGAL UPDATE FOR WASHINGTON LAW ENFORCEMENT Law Enforcement Officers: Thank you! September 2017 TABLE OF CONTENTS FOR SEPTEMBER 2017 LEGAL UPDATE NINTH CIRCUIT, UNITED STATES COURT OF APPEALS………………………………2 CIVIL RIGHTS ACT CIVIL LIABILITY: OFFICER IS DENIED QUALIFIED IMMUNITY BY 2-1 VOTE WHERE OFFICER FATALLY SHOT 13-YEAR-OLD WHO WAS HOLDING A REALISTIC-LOOKING PLASTIC REPLICA OF AN AK-47, AND YOUTH’S ESTATE CAN POINT TO ALLEGATIONS/EVIDENCE THAT: (1) YOUTH’S GUN HAD ALLEGEDLY REMAINED POINTED DOWN AT THE GROUND, AND (2) THE OFFICER HAD ORDERED THE YOUTH TO “DROP THE GUN,” BUT THE OFFICER HAD NOT IDENTIFIED SELF AS LAW ENFORCEMENT OR WARNED THAT DEADLY FORCE WAS IMMINENT Estate of Lopez v. Gelhaus, 871 F.3d 998 (9th Cir., Sept. 22, 2017)……………………..2 CIVIL RIGHTS ACT: THREE-JUDGE PANEL IS UNANIMOUS IN HOLDING THAT SECOND AMENDMENT RIGHTS OF SEATTLE POLICE DEPARTMENT OFFICERS ARE NOT VIOLATED BY SEATTLE POLICY ON USE OF FIREARMS Mahoney [and over 100 other Seattle PD officers] v. Sessions and City of Seattle, ___ F.3d ___ , 2017 WL ___ (9th Cir., September 19, 2017)……………………………………5 CIVIL RIGHTS ACT CIVIL LIABILITY: OFFICER HELD ENTITLED TO QUALIFIED IMMUNITY (AND PANEL INDICATES HE LIKELY WAS JUSTIFIED UNDER THE FOURTH AMENDMENT) IN RELATION TO THE OFFICER’S SHOOTING OF A TRESPASSER WHO AGGRESSIVELY CAME AT OFFICER INSIDE A HOME, SCREAMING AND HOLDING A BROKEN HOCKEY STICK IN SWINGING POSITION Woodward v. City of Tucson, 870 F.3d 1154 (9th Cir., Sept. 15, 2017)…………………..5 CIVIL RIGHTS ACT CIVIL LIABILITY: IN A CASE WHERE OFFICERS MISTAKENLY ARRESTED THE FATHER INSTEAD OF THE SON WHO WAS NAMED IN AN ARREST WARRANT, COURT CONCLUDES OFFICERS VIOLATED FATHER’S FOURTH AMENDMENT RIGHTS ON SEVERAL POINTS, BUT THAT CASE LAW WAS NOT ESTABLISHED FOR QUALIFIED IMMUNITY PURPOSES; BUT COURT CONCLUDES THAT CASE CAN GO TO JURY ON FREE SPEECH THEORY THAT OFFICERS PROLONGED THE FATHER’S DETENTION BASED SOLELY ON HIS “ARGUMENTATIVE” DEMEANOR Sharp v. County of Orange, 871 F.3d 901 (9th Cir., September 19, 2017)……………….7 Legal Update - 1 September 2017 INITIATION-OF-CONTACT RULE UNDER MIRANDA: OFFICERS HELD IN HABEAS CASE INVOLVING 14-YEAR-OLD MURDER SUSPECT TO HAVE VIOLATED MIRANDA-BASED INITIATION-OF-CONTACT RULE OF EDWARDS V. ARIZONA IN THEIR CONVERSATION WITH THE CUSTODIAL SUSPECT SHORTLY AFTER HE CLEARLY INVOKED HIS RIGHT TO COUNSEL Rodriguez v. McDonald, 872 F.3d 908 (9th Cir., September 29, 2017)…………………12 BRADY VIOLATIONS REQUIRE GRANT OF HABEAS RELIEF TO PRISONER ON MURDER AND OTHER CONVICTIONS; DEFENDANT SHOULD HAVE BEEN TOLD OF (1) AN OFFICER’S SHOEPRINT OBSERVATION, (2) AN EXPECTATION THAT A WITNESS HAD OF RECEIVING A BENEFIT FROM THE STATE FOR HIS TESTIMONY, AND (3) THE VICTIM’S EXACT DESCRIPTION OF THE ASSAILANT’S HAIRSTYLE Browning v. Baker, ___ F.3d ___ , 2017 WL ___ (9th Cir., September 20, 2017)………18 WASHINGTON STATE SUPREME COURT……………………………………………….20 SEXTING CRIME: 17-YEAR-OLD WHO TEXTED A PICTURE OF HIS ERECT PENIS TO AN ADULT WOMAN TO HARASS HER COMMITTED “DEALING IN DEPICTIONS OF A MINOR ENGAGED IN SEXUALLY EXPLICIT ACTIVITY” UNDER RCW 9.68A.050(2)(a); COURT ALSO HOLDS THAT STATUTE (1) DOES NOT VIOLATE FREE SPEECH RIGHTS, AND (2) IS NOT VOID FOR VAGUENESS State v. Gray, ___Wn.2d ___ , 402 P.3d 243 (September 14, 2017)……………………20 WASHINGTON STATE COURT OF APPEALS…………………………………………...22 JUVENILE’S “PASSIVE” RESISTANCE TO HANDCUFFING PROCESS DURING INVESTIGATORY STOP HELD TO NOT BE OBSTRUCTING; THE THREE APPELLATE JUDGES AGREE ON RESULT BUT NOT ON REASONING; TWO OF THE THREE JUDGES TAKE THE VIEW THAT THERE IS NO DUTY TO COOPERATE IN AN INVESTIGATORY STOP; THE THIRD JUDGE TAKES THE VIEW THAT THERE IS A DUTY TO COOPERATE IN AN INVESTIGATORY STOP, BUT ONLY IF THE OFFICER HAS REASONABLE SUSPICION FOR THE STOP State v. D.E.D., ___ Wn. App. ___, 402 P.3d 851 (Div. III, September 19, 2017……..22 ANNOUNCEMENT: MATERIALS BY JOHN WASBERG HAVE BEEN UPDATED THROUGH JULY 1, 2017 AND ARE AVAILABLE ON THE CRIMINAL JUSTICE TRAINING COMMISSION’S INTERNET LED PAGE UNDER “SPECIAL TOPICS”…24 ********************************** NINTH CIRCUIT, UNITED STATES COURT OF APPEALS CIVIL RIGHTS ACT CIVIL LIABILITY: OFFICER IS DENIED QUALIFIED IMMUNITY BY 2-1 VOTE WHERE OFFICER FATALLY SHOT 13-YEAR-OLD WHO WAS HOLDING A REALISTIC-LOOKING PLASTIC REPLICA OF AN AK-47, AND YOUTH’S ESTATE CAN POINT TO ALLEGATIONS/EVIDENCE THAT: (1) YOUTH’S GUN HAD ALLEGEDLY Legal Update - 2 September 2017 REMAINED POINTED DOWN AT THE GROUND, AND (2) THE OFFICER HAD ORDERED THE YOUTH TO “DROP THE GUN,” BUT THE OFFICER HAD NOT IDENTIFIED SELF AS LAW ENFORCEMENT OR WARNED THAT DEADLY FORCE WAS IMMINENT In Estate of Lopez v. Gelhaus, 871 F.3d 998 (9th Cir., September 22, 2017), a Ninth Circuit panel votes 2-1 to deny a law enforcement officer qualified immunity. A Ninth Circuit staff opinion summary that is not part of the panel’s opinion summarizes the majority and dissenting opinions as follows: The panel affirmed the district court’s order denying [law enforcement’s] motion for summary judgment on the defense of qualified immunity in an action brought pursuant to 42 U.S.C. § 1983 alleging that Sonoma County Sheriff’s Deputy Erik Gelhaus deployed excessive force when he fatally shot thirteen-year-old Andy Lopez. [Deputy] Gelhaus shot Andy after witnessing Andy walking down the street with an object that looked like an AK-47 rifle. Andy did not comply with Gelhaus’s directive to “drop the gun.” The object turned out to be a plastic gun designed to replicate an AK-47, with the bright orange tip removed. The panel held that viewing the facts in the light most favorable to plaintiffs [Andy’s estate], as the panel was required to do at this stage of the proceedings, Gelhaus deployed deadly force while Andy was standing on the sidewalk holding a gun that was pointed down at the ground. Gelhaus also shot Andy without having warned Andy that such force would be used, and without observing any aggressive behavior. Pursuant to Graham v. Connor, 490 U.S. 386 (1989), a reasonable jury could find that Gelhaus’s use of deadly force was not objectively reasonable. The panel further held that taking the facts as it was required to do on [law enforcemetn’s] interlocutory appeal, Andy did not pose an immediate threat to law enforcement officials and therefore the law was clearly established at the time of the shooting that [Deputy] Gelhaus’s conduct was unconstitutional. The panel held that ultimately, Gelhaus’s entitlement to qualified immunity depended on disputed facts that needed to be resolved by a jury, and the panel therefore remanded the case for trial. Dissenting, Judge Wallace stated that at the time of the shooting, legal precedent did not clearly establish that the use of deadly force under the circumstances was objectively unreasonable. The majority opinion is lengthy in both its description of the factual allegations and in its legal analysis. Interested readers should consult the majority and dissenting opinions in the case for a better understanding of the complexities of the case. An officer is entitled to qualified immunity if the officer’s actions: (1) complied with the constitutional standard, or (2) the constitutional standard applicable to the circumstances was not “clearly established” by relevant case law at the time of the officer’s actions. Thus, qualified immunity is denied only if an officer’s actions violated a standard set under clearly established constitutional case law. Qualified immunity is denied only if officers’ actions either were plainly incompetent or were knowing violations of the then-existing constitutional case law. In other words, qualified immunity is granted unless existing appellate case law at the time of the officers’ actions placed the constitutional question clearly beyond debate in light of the factual contexts of the case law. Legal Update - 3 September 2017 The Fourth Amendment permits law enforcement to use “objectively reasonable” force. Graham v. Connor, 490 U.S. 386 (1989). Factors for evaluating reasonableness include, but are not limited to: (1) the severity of the crime at issue; (1) most important, whether the suspect posed an immediate threat to the safety of the officers or others; (2) the severity of the crime at issue; and (3) whether the suspect actively resisted arrest or attempted to escape. Other relevant factors include the reasonable availability of less intrusive alternatives to the force employed (though there is not a strict requirement that only the least intrusive alternative may be used), whether proper identification as law enforcement was announced, and whether proper orders and proper warnings about the imminent use of deadly force were given. When the government seeks qualified immunity by summary judgment in order to avoid going to trial, all factual allegations in the case are considered in the best light for the plaintiff who is suing law enforcement. Factual problems for law enforcement in this particular case include the circumstances that there were some internal inconsistencies in Deputy Gelhaus’s own statements, plus some inconsistencies between (1) Deputy Gelhaus’s description of relevant events and (2) Deputy Schemmel’s descriptions of these events. The majority opinion in Estate of Lopez explains that taking factual allegation and evidence in the best light for the Estate (plaintiffs), the following could support an excessive force argument by the Estate to a jury: Viewing the evidence in the light most favorable to plaintiffs, a reasonable jury could come to the following factual conclusions: (1) the officers