Cunningham v. Gates
| Decision Date | 13 December 2002 |
| Docket Number | No. 01-56339.,01-56339. |
| Parties | Robert CUNNINGHAM; Armand Soly, Betty Soly, in their individual capacities and as successors in interest to their deceased son, Daniel Soly, and in their capacities as representatives of the classes described fully hereinbelow; Alpha Doe, Beta Doe, in their capacity as a representative of the class described fully hereinbelow; Alfredo Olivas, Harold Bridges, B.K. Williams, in their individual capacities and in their capacities as representatives of the classes described fully hereinbelow, Plaintiffs-Appellants, v. Daryl GATES; Willie Williams; Tom Bradley; Richard Riordan; Richard Alarcon; Richard Alatorre; Marvin Braude; Laura Chick; John Ferraro; Michael Feuer; Ruth Galanter; Michael Hernandez; Nate Holden; Mark Ridley-Thomas; Rudy Svornich; Joel Wachs; Rita Walters; Ernani Bernardi; David Cunningham; Robert Farrell; Joan Milke Flores; Gloria Molina; Joy Picus; Arthur Snyder; Michael Woo; Zev Yaroslavsky; Herbert Boeckmann; Raymond Fisher; Deidre Hall; Art Mattox; Edith Perez; James Fisk; Gary Grennbaum; Maxwell Greenberg; Enrique Hernandez; Marguerite Justice; Barbara L. Schlei; Reva Tooley; Robert Weil; Stephen Yslas; Richard Hegelson; Flora Trostler; Joseph Callian; Brian Davis; Joseph Freia; Edward Guiza; James Harris; John Helms; Richard Spellman; James Tippings; John Tortorici; Lawrence Winston; Phillip Wixon; Gary Zerbe; Richard Zierenberg; City of Los Angeles; Jerry Brooks; John D. White; John Trundle; Robert Rochhoft; Daniel Koenig; Hal Bernson; Stephen Gavin; Emmett McGaughey; Robert M. Talcott; Janet Bogigian; Mary Burwell Cooper; Ellen M. Fawls; Michael K. Fox; James K. Hahn; Katherine J. Hamilton; Theodore D. Heyck Thomas Hokinson; Stuart D. Hotchkiss; Annette Keller; Lenore Lashley; Richard James; Honey A. Lewis; Ward G. McConnell; John T. Neville; James Pearson; Robert J. Pulone; Phillip Shiner; Phillip Sugar; Don W. Vincent, II; Tayo Popoola; G. Daniel Woodard; Dennis Conte; Gregory Berg; Randolph Mancini; Does, 1-100 who are either policymakers, city council members or L.A. Board of Police Commissioner members or employees of the City of L.A. Attorney's Office both past & present; Does, 100-201 who are members, or employees, or officers of the LAPD, both past & present, Defendants-Appellees. |
| Court | U.S. Court of Appeals — Ninth Circuit |
Stephen Yagman, Kathryn Bloomfield, Marion R. Yagman, and Joseph Reichmann, Yagman & Yagman & Reichman, Venice Beach, California, for the appellants.
Rockard J. Delgadillo, Daniel Woodard, and Amy Jo Field, Office of the City Attorney, Los Angeles, California, for the appellees.
Appeal from the United States District Court for the Central District of California; Consuelo B. Marshall, Chief Judge, Presiding. D.C. No. CV-96-02666-CBM.
Before: GOODWIN, RYMER, and McKEOWN, Circuit Judges.
This case arose from the bloody aftermath of a robbery in the Newbury Park neighborhood of Los Angeles. After police surrounded the getaway car, the two robbers, Robert Cunningham and Daniel Soly, exchanged gunfire with the police. Soly died and Cunningham was seriously injured. Cunningham was later tried and convicted of, among other things, murdering Soly by provoking the police to shoot. Soly's parents and Cunningham filed civil rights claims against the police and other defendants associated with the City of Los Angeles, alleging that police used excessive force in violation of the Fourth and Fourteenth Amendments.
We must decide whether Cunningham's claims are barred under Heck v. Humphrey, 512 U.S. 477, 487, 114 S.Ct. 2364, 129 L.Ed.2d 383 (1994), because the theories he now asserts would call into question the validity of his state convictions. We must also decide whether the claims of Soly's parents are similarly barred by Cunningham's convictions.
The facts and procedural history of this complex case are described more fully in our earlier opinion, Cunningham v. Gates, 229 F.3d 1271 (9th Cir.2000), so our discussion here is limited to the background relevant to the issues before us.
The Los Angeles Police Department's ("LAPD") Special Investigation Section ("SIS") learned in May of 1995 that Daniel Soly and Robert Cunningham had been involved in an armed robbery in Simi Valley. On June 26, 1995, SIS officers started surveillance of the two men after receiving tips that more criminal activity was afoot. That evening, SIS officers followed Cunningham and Soly to Newbury Park, California, and watched as they robbed the Southwest Liquor and Deli.
Cunningham and Soly left the store and ran to their getaway car. Plainclothes SIS officers in unmarked cars surrounded the car, boxing it in. This tactic, known as "jamming," is often used by special units to gain surprise over armed suspects and to prevent escape and dangerous high-speed chases. See Cunningham, 229 F.3d at 1278 n. 7.
What happened next is hotly debated. Cunningham and Soly allege in their complaint that SIS officers simply began to shoot, firing eighteen shotgun blasts and handgun shots into the getaway car, killing Soly, leaving Cunningham paralyzed, and wounding two fellow SIS officers. The SIS officers insist that Cunningham and Soly fired first. Whatever happened, the scene was chaos; the Ventura County Sheriff deputies called to the scene had difficulty distinguishing between the plainclothes police and the suspects and ended up arresting everyone.
Cunningham was charged with several crimes related to the robbery and gunfight. A California jury convicted Cunningham of three counts of attempting to murder SIS officers by firing a weapon at them; Soly's murder by provoking the officers into shooting at the getaway car; robbery; and burglary. Cunningham based his defense on the theory that the police fired first, and that he acted in self-defense when returning fire. The trial judge instructed the jury that they were to find Cunningham guilty of felony murder if, during the commission of the robbery,
1. The defendant also committed an intentional provocative act;
2. A peace officer, in response to the provocative act, killed a perpetrator of the crime of robbery;
3. The defendant's commission of the intentional provocative act was a cause of the death of Daniel Soly.
4. The act was above and beyond the act required for the commission of the crime of robbery, and
5. The act was not in self defense.
On the attempted murder counts, the jury was instructed that it must find that Cunningham knew or should have known that he was shooting at police officers engaged in the performance of their duties.
Daniel Soly's parents, Armand and Betty Soly (the "Solys") and Robert Cunningham (collectively, the "plaintiffs"), filed claims under 42 U.S.C. § 1983 against various groups of defendants, including SIS officers who were directly involved in the gun battle with Cunningham and Soly (the "shooting officers"), LAPD officers who were not directly involved (the "non-shooting officers"), supervisory officers, members of the Los Angeles Police Commission, some members of the Los Angeles City Council, then-Mayor Richard Riordan, and various assistant Los Angeles city attorneys (the "City Officials"). The Solys and Cunningham alleged Fourth and Fourteenth Amendment violations as a result of police use of excessive force.
The overarching theory alleged in the complaint was that all of the officers and City Officials engaged in a "standard operating procedure" designed to create a situation likely to result in the death of the plaintiffs. In carrying out their part of this plan, according to the complaint, SIS officers set up surveillance of Cunningham and Soly, permitted them to rob the liquor store, jammed their car, fired on them without identifying themselves as police, and later covered up evidence of SIS misconduct.
The City Officials and the various officers filed motions for summary judgment, all but one of them claiming qualified immunity, and all of them arguing that the claims were barred by Heck because plaintiffs' theories would necessarily imply the invalidity of Cunningham's state criminal convictions.1 Judge Letts granted Mayor Riordan's motion, but denied summary judgment for the others, rejecting their qualified immunity claims and concluding that Heck did not apply.
The City Officials and the officers filed an interlocutory appeal. We held that we did not have jurisdiction to consider the denial of summary judgment on the Heck-related defense. Cunningham, 229 F.3d at 1284-85. We noted, however, our "serious disagreement" with Judge Letts's ruling and encouraged the parties and the district court to revisit the Heck issue on remand. Id. at 1285 n. 21. We then reversed, on qualified immunity grounds, the denial of summary judgment to some of the non-shooting officers, the council members, the City attorneys, and an SIS supervisor. Id. at 1286-94. The case returned to the district court for proceedings against the remaining officers.
On remand, the case was reassigned to Chief Judge Marshall, who reconsidered the Heck issue and granted summary judgment to all of the remaining officials. That decision is the basis of this appeal.
Under Heck, 512 U.S. at 487, 114 S.Ct. 2364, "if a criminal conviction arising out of the same facts stands and is fundamentally inconsistent with the unlawful behavior for which section 1983 damages are sought, the 1983 action must be dismissed." Smithart v. Towery, 79 F.3d 951, 952 (9th Cir.1996). In California, a...
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