2 F.3d 870 (9th Cir. 1993), 91-10360, United States v. Reese

Docket Nº:91-10360 to 91-10362 and 91-10422.
Citation:2 F.3d 870
Party Name:UNITED STATES of America, Plaintiff-Appellee, v. Juan Dale REESE, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Scott Matthew DWYER, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Daniel Wayne BROUSSARD, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Larry Marcel HOUSTON, Defenda
Case Date:July 27, 1993
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit

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2 F.3d 870 (9th Cir. 1993)

UNITED STATES of America, Plaintiff-Appellee,


Juan Dale REESE, Defendant-Appellant.

UNITED STATES of America, Plaintiff-Appellee,


Scott Matthew DWYER, Defendant-Appellant.

UNITED STATES of America, Plaintiff-Appellee,


Daniel Wayne BROUSSARD, Defendant-Appellant.

UNITED STATES of America, Plaintiff-Appellee,


Larry Marcel HOUSTON, Defendant-Appellant.

Nos. 91-10360 to 91-10362 and 91-10422.

United States Court of Appeals, Ninth Circuit

July 27, 1993

Argued and Submitted Dec. 15, 1992.

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Victoria C. Belco, Berkeley, CA, for defendant-appellant Reese.

Michael A. Levy, Berkeley, CA, for defendant-appellant Dwyer.

J. Frank McCabe, Goorjian & McCabe, San Francisco, CA, for defendant-appellant Broussard.

George C. Boisseau, Santa Rosa, CA, for defendant-appellant Houston.

Albert S. Glenn, Asst. U.S. Atty., San Francisco, CA, for plaintiff-appellee.

Appeal from the United States District Court for the Northern District of California.

Before: GOODWIN, O'SCANNLAIN, and RYMER, Circuit Judges.

O'SCANNLAIN, Circuit Judge.

A jury convicted appellants of federal civil rights crimes stemming from their actions as Oakland Housing Authority police officers. Their appeals raise a number of difficult questions, among them certain matters of first impression. We are required to decide what the government must prove to convict a law enforcement officer of depriving an individual of his federal constitutional right to be free of excessive force during detention or arrest. We also must decide whether criminal

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liability may be imposed on a commanding police officer who fails to prevent the use of excessive force by officers under his command.


The Oakland Housing Authority (the "OHA") is a municipal agency that provides housing to low income residents in Oakland, California. 1 The Oakland Housing Authority Police Department (the "OHAPD") provides security and police services to the residents of OHA properties. Prior to the events with which we are here concerned, the OHAPD consisted of some two dozen officers, including one chief, three sergeants, and one corporal.

Among the properties administered by the OHA were large public housing developments plagued by high levels of drug activity, much of it involving crack cocaine. In April 1989, a special drug suppression task force (the "Task Force") was created within the OHAPD using funds provided by a federal grant. Six new officers were hired to man the Task Force, among them appellants Reese, Dwyer, and Houston. Officers Garden, Barryer, and Yee were the remaining members. 2 Appellant Broussard, already an OHAPD sergeant, was chosen to command them.

The Task Force operated as an independent unit within the department. The group was not assigned responsibility for patrolling any particular area, but was left free to deal with narcotics problems wherever they arose on OHA property. It held its daily group meetings apart from the regular OHAPD patrol officers. Its members worked on a single shift.

At Broussard's direction, the Task Force officers acted together virtually at all times while in the field. Typically, they would go out in two or three vehicles, drive up to an area on or near OHA property where they suspected drug activity, jump out of the vehicles, and, in the words of Officer Barryer, "just take anything and everything we saw on the street corner ... more or less like a wolf pack."

Broussard offered guidance to the men under his command in a number of respects around the time when the Task Force was first assembled. He told them, for example, that a lot of "dirty" drug money would be passing through their hands, and that it would not really matter if they kept some of it for themselves. The suspects, he noted, would be in no position to complain if some of their money came up missing. He also regularly exhorted Task Force officers to keep their arrest numbers up. All the officers were aware that the federal grant that funded their unit, and on which their jobs depended, was good for only eighteen to twenty-four months. Broussard warned that they would need statistics to show that the federal money was well spent and thus to secure another grant. On more than one occasion, he sent the Task Force out to begin a shift with comments like, "Let's go out and kick ass," and "[E]verybody goes to jail tonight for everything, all right?"

We turn now to the various incidents that were part of the government's case at trial, whether charged as individual substantive violations or as overt acts in furtherance of appellants' alleged conspiracy.

On May 8, 1989, during the Task Force's first night on patrol, Dwyer and Garden chased and caught a fleeing suspect in a parking lot. The two officers had the suspect on the ground and were beating him when other Task Force members stepped in; he did not appear to be resisting. Dwyer then walked the suspect over to one of the patrol cars and slammed him against it

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abruptly, so that his face and chest came down on the hood, even though the suspect was under control and in handcuffs at the time. Yee then pulled the suspect away from Dwyer, and the suspect was arrested for loitering. At the Task Force's briefing the next day, Dwyer told Yee he did not appreciate having his "investigation" interfered with.

Garden received a cut on his face during this incident. In response, Broussard told his assembled officers that any suspect who injured a Task Force member had better end up going to the hospital himself. On other occasions, Broussard admonished his men that, if a suspect were to run from them, they should "catch him [and] whip his ass." "No one runs," Broussard told another OHAPD sergeant. "Those who run will pay."

On May 16, 1989, at about 2:00 p.m., Jackie Dailey was helping to fix the car of an OHA resident, across the street from his own residence. Task Force members arrived on the scene and ordered Dailey and the other individuals present to stand spread-eagled against the car while they were searched and their names checked for outstanding warrants. No such warrants were found, and the search revealed no contraband. Reese then approached Dailey and told him that he found the hat Dailey was wearing offensive. The hat had the words "One Pimp, six holes" written on it. Reese took the hat off Dailey's head, ripped it, and threw it on the ground. He then seized Dailey by the neck and the back of the pants and threw him against the police car, then lifted him and threw him to the ground twice in succession. Houston then arrested Dailey for loitering. Broussard, the supervisor in charge at the time, was present at this incident and watched it develop, but took no steps to intercede.

After his release from jail, Dailey went to a hospital emergency room, where an x-ray was taken. He was later diagnosed as having sustained a fracture of his right elbow. Pain medication was prescribed and his arm was placed in a sling, which prevented him from filling out the complaint form he wished to file with the OHA--a friend had to write out the complaint for him. 3

On May 19, 1989, Dwyer attempted to place a suspect in the back seat of a patrol car. He found himself unable to do so because another suspect, Bryan Kiel, already in custody and handcuffed, had fallen asleep there. Dwyer twice told Kiel to move, then, receiving no response, kicked him hard in the chest.

A meeting involving the members of the Task Force and the chief of the OHAPD was held in the wake of this incident. The chief told the officers that the use of unnecessary or excessive force would not be tolerated, that Dwyer had come close to being terminated, and that any officer guilty of using excessive force in the future would be. After the chief left, Dwyer confronted Yee, saying he would hold him directly responsible if he were fired. Houston then told Yee that he was not a team player and was not aggressive enough. Reese added that, while he had no problems with Yee personally, he "felt he had to watch his back and look over his shoulder when [Yee] was around, because he was afraid [Yee would] say something." Both Reese and Houston told Yee he should consider leaving the Task Force.

Broussard, who had said little to that point in the meeting, then stated that "team business should remain team business," that matters involving Task Force members were the Task Force's own affair, and that no one else need know about them. On this and other occasions, Broussard told his officers that "team business" was not to be discussed with OHA patrol officers. Any Task Force member who had a problem with this, he added, would be "severely dealt with" by Broussard himself.

On May 23, 1989, Barryer conducted a pat search of Demetrius Findley. Barryer found nothing, and was prepared to release the suspect, but Broussard told him to continue the search. Barryer eventually discovered a

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plastic baggie containing suspected rock cocaine underneath Findley's testicles.

Barryer believed, however, that he had not had probable cause to conduct such an extensive search. He and Broussard discussed the problem of how to write up the arrest report in such a way as to make the search appear valid. Barryer proposed saying that he had felt something like a weapon in Findley's pants, but Broussard rejected this idea on the grounds that it would not provide a strong enough case. Barryer then indicated that he would simply say that he had seen Findley throw the cocaine on the ground. "Yeah, that'll work," Broussard said. Barryer wrote up his report in these terms, and Broussard read and approved the report.

The following month, Barryer was subpoenaed to testify in court in connection with the Findley arrest. Upon meeting with the deputy...

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