Cunnungham v. Gates

Decision Date31 October 2000
Docket Number98-55855,98-55208,98-56077,Nos. 98-55108,98-56081,RIDLEY-THOMAS,99-55136,BURWELL-COOPER,s. 98-55108
Citation229 F.3d 1271
Parties(9th Cir. 2000) ROBERT CUNNINGHAM; ARMAND SOLY, in his individual capacity & as successor in interest to his deceased son, Daniel Soly, & in his capacity as a representative of the classes described fully herein below; BETTY SOLY, in her individual capacity & as successor in interest to her deceased son, Daniel Soly, & in her capacity as a representative of the classes described fully herein below, Plaintiffs-Appellees, v. DARYL GATES, Defendant, WILLIAM L. WILLIAMS; RICHARD ALARCON; RICHARD ALATORRE; HAL BERNSON; MARVIN BRAUDE; LAURA CHICK; JOHN FERRARO; MICHAEL FEUER; RUTH GALANTER; JACKIE GOLDBERG; MICHAEL HERNANDEZ; NATE HOLDEN; MARK RIDLEYTHOMAS; RUDY SVORNICH; JOEL WACHS; RITA WALTERS; HERBERT BOECKMANN; RAYMOND FISHER; DEIRDRE HILL; ART MATTOX; EDITH PEREZ; GARY GREENBAUM; ENRIQUE HERNANDEZ; MARY; JANET G. BOGIGIAN; ELLEN M. FAWLS; MICHAEL K. FOX; JAMES K. HAHN; KATHERINE J. HAMILTON; RICHARD M. HELGESON; THOMAS C. HOKINSON; STUART D. HOTCHKISS; ANNETTE KELLER; LENORE LASHLEY; HONEY A. LEWIS; WARD G. MCCONNELL; JOHN T. NEVILLE; JAMES H. PEARSON; ROBERT J. PULONE; PHLLIP SHINER; PHILLIP J. SUGAR; FLORA TROSTLER; DON W. VINCENT, II; G. DANIEL WOODARD; JOSEPH CALLIAN; BRIAN DAVIS; JOSEPH FREIA; EDWARD GUIZA; JAMES HARRIS; RICHARD SPELMAN; JAMES TIPPINGS; JOHN TORTORICI; LAWRENCE WINSTON; PHILLIP JAMES WIXON; GARY ZERBY; RICHARD ZIERENBERG; TAYO POPOOLA; JERRY BROOKS; JOHN D. WHITE; DENNIS CONTE; GREGORY BERG; RANDOLPH MANCINI; JOHN TRUNDLE; ROBERT ROCHHOFT; DANIEL KOENIG, Defendants-Appellants. ROBERT CUNNINGHAM; ARMAND SOLY, in his individual capacity & as successor in interest to his deceased son, Daniel Soly, & in his capacity as a representative of the classes described fully herein below; BETTY SOLY, in her individual capacity & as successor in interest to her deceased son, Daniel Soly, & in her capacity as a representative of the classes described fully herein below, Plaintiffs-Appellees, v. DARYL GATES, Defendant, CITY OF LOS ANGELES; WILLIAM L. WILLIAMS;
CourtU.S. Court of Appeals — Ninth Circuit

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[Copyrighted Material Omitted] Lisa S. Berger, Deputy City Attorney, Los Angeles, California, and Louis R. Miller, Christensen, Miller, Fink, Jacobs, Glaser, Weil & Shapiro, LLP, Los Angeles, California, for the defendants-appellants.

Stephen Yagman (Argued) and Marion R. Yagman, Yagman & Yagman, Venice, California, for the plaintiffs-appellees.

Appeals from the United States District Court for the Central District of California J. Spencer Letts, District Judge, Presiding D.C. No.CV-96-02666-JSL D.C. No. CV-96-02666-JSL D.C. No. CV-97-01286-JSL D.C. No.CV-96-02666-JSL D.C. No.CV-97-01286-JSL D.C. No.CV-97-01286-JSL

Before: Michael Daly Hawkins, Frank Magill, 1 and Sidney R. Thomas, Circuit Judges.

MAGILL, Senior Circuit Judge:

This consolidated appeal requires us to decide whether certain Los Angeles city officials are entitled to qualified immunity from suits initiated by several alleged victims of excessive force by the Los Angeles Police Department (LAPD). In three separate lawsuits, Robert Cunningham, Grover Smith, and the parents of Daniel Soly,2 sued the city of Los Angeles (City) and numerous City officials, alleging the defendants either used excessive force, acquiesced in the use of excessive force, or engaged in an unconstitutional policy of indemnifying LAPD officers against punitive damage awards in excessive force cases.3 Defendants in the Cunningham and Soly actions moved for summary judgment based on qualified immunity from suit and Heck v. Humphrey, 512 U.S. 477 (1994).4 The district court5 granted summary judgment to the City's mayor, Richard Riordan, but otherwise denied all motions for summary judgment.6See Cunningham v. Gates, 989 F.Supp. 1256 (C.D. Cal. 1997); Cunningham v. Gates,989 F.Supp. 1262 (C.D. Cal. 1997). Defendants in the Smith action also moved for summary judgment based on qualified immunity. In denying the Smith defendants' motions for summary judgment, the district court incorporated the reasoning as set forth in its earlier decisions denying the defendants' motions for summary judgment in the Cunningham and Soly actions. For reasons to be discussed, we affirm in part and reverse in part.

I. Background

All of these actions arise out of the actions and conduct of a special unit of the LAPD--the Special Investigation Services (SIS)--whose purpose was to interdict and apprehend armed, violent career criminals.

A. The Cunningham/Soly Robbery

On May 3, 1995, LAPD detectives received information concerning Cunningham and Soly's involvement in a Simi Valley armed robbery. Having received additional information concerning Cunningham and Soly's criminal activities, SIS members placed Cunningham and Soly under surveillance at approximately 3:00 p.m. on June 26, 1995. After observing the suspects for several hours, SIS officers followed them to what they believed would be the scene of a robbery--the Southwest Liquor and Deli in Newbury Park, California. The officers permitted Cunningham and Soly to rob the store, although the officers had both probable cause and the ability to arrest the armed duo before the robbery was committed. After allowing the two robbers to leave the store and enter their getaway car, SIS officers used their police cars to "jam"7 Cunningham and Soly's car into a confined space, thus preventing them from escaping in their vehicle. According to plaintiffs, the officers then, without announcing themselves as police, opened fire with approximately eighteen shotgun blasts and handgun shots, which resulted in Soly's death and Cunningham's permanently disabling injuries. The defendants claim that Cunningham and Soly fired the first shots, a claim supported in Cunningham's criminal trial, where a California jury rejected Cunningham's claim that the officers provoked the use of force.

B. The Grover Smith Shooting

On February 25, 1997, SIS members conducted a surveillance operation focusing on the activities of robbery suspect Michael Smith.8 On the night of the shooting, SIS detectives observed Michael Smith and three other suspects enter the Classroom Bar with their jacket hoods pulled up over their heads. Shortly thereafter, they exited the bar and drove out of an alley in a Mercury Topaz.

SIS Detectives Lawrence Winston and Richard Spelman were part of the surveillance team. A radio announcement informed them of the armed robbery of the Classroom Bar and the suspects' escape by car. A police helicopter broadcasting the suspects' movements reported that their Mercury had driven into a cul-de-sac at Corbin Avenue and Schoenborn Street. Detectives Winston and Spelman approached the location and observed two SIS units converging on the Mercury. They saw muzzle flashes coming from the Mercury and heard the sound of gunfire.

The front passenger door of the Mercury opened and an African-American male wearing dark clothing exited the vehicle and began running towards nearby houses. Detectives Winston and Spelman drove north on Corbin and pulled into a driveway to block the armed suspect's escape. They heard a broadcast reporting the suspect heading in their direction. Immediately thereafter, they saw a young African-American, wearing a white long-sleeved t-shirt and dark jeans, standing on the east side of Corbin. He was looking up and down the street and saw the helicopter. He moved north toward a large tree...

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