884 F.2d 1136 (9th Cir. 1988), 86-6663, Perez v. Simmons

Docket Nº:86-6663.
Citation:884 F.2d 1136
Party Name:Irma Jean PEREZ, Plaintiff-Appellant, v. Wayne A. SIMMONS; James Nalls; Thomas Miller; Mark Meske; and City of Santa Barbara, Defendants-Appellees.
Case Date:October 26, 1988
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit

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884 F.2d 1136 (9th Cir. 1988)

Irma Jean PEREZ, Plaintiff-Appellant,


Wayne A. SIMMONS; James Nalls; Thomas Miller; Mark Meske;

and City of Santa Barbara, Defendants-Appellees.

No. 86-6663.

United States Court of Appeals, Ninth Circuit

October 26, 1988

Argued and Submitted March 7, 1988.

Amended Aug. 31, 1989.

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John M. Sink, Santa Barbara, Cal., for plaintiff-appellant.

David K. Hughes, Asst. City Atty., and Kristofer Kallman, Santa Barbara, Cal., for defendants-appellees.

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

Before HUG, ALARCON and KOZINSKI, Circuit Judges.

HUG, Circuit Judge:

An opinion in this case was filed on October 26, 1988, Perez v. Simmons, 859 F.2d 1411 (9th Cir.1988). Appellees petitioned for a writ of certiorari to the United States Supreme Court. In response to the petition, the Court vacated the judgment and remanded to our court for further consideration in light of City of Canton v. Harris, --- U.S. ----, 109 S.Ct. 1197, 103 L.Ed.2d 412 (1989). Simmons v. Perez, --- U.S. ----, 109 S.Ct. 1736, 104 L.Ed.2d 174 (1989). On further consideration, in light of that case, we file this amended opinion.

Plaintiff Irma Perez brought this section 1983 action against the City of Santa Barbara and certain police officers alleging that the officers violated her constitutional rights by entering her house unlawfully in search of her brother. The district judge granted a directed verdict in favor of the City, and a jury found in favor of the remaining defendants. In this appeal, Perez alleges error in the jury instructions and error in granting the directed verdict. We have jurisdiction under 28 U.S.C. Sec. 1291 (1982). We reverse.



On March 8, 1983, Irma Perez was living in a three-bedroom apartment at 13 South Soledad Street, in Santa Barbara, California. She had lived there over three years with her children.

Irma Perez had a brother named Albert who, Irma testified, never lived in her apartment. Albert was on probation and also had warrants outstanding for his arrest. Officers Nalls, Simmons, and Miller of the Santa Barbara Police Department narcotics detail were aware of the arrest warrants. Between October and December of 1982, the officers went three or four times to the residence of Albert's other sister, Debbie, to contact Albert. Debbie lived across town from Irma on Bath Street. This was the residence address that Albert had given to the police when he was arrested on August 21, 1982, and this was the address used by the probation department. When the officers spoke with Debbie on those occasions, they informed her of the warrants for Albert's arrest. She informed them that Albert was not residing there any longer and she did not know where he was living.

In the early afternoon of March 8, 1983, the three officers were driving in an unmarked vehicle on Carpinteria Street and approached the intersection of South Soledad Street. They spotted Albert Perez walking toward them on Soledad Street, in the same block where Irma Perez lived in the apartment complex. When Albert saw them, he immediately turned and headed in the direction of the apartment. Detective Miller got out of the car while the others drove to a parking place. The three then walked through the apartment complex but saw no trace of Albert.

Sergeant Nalls then recalled that he had participated in an arrest of Albert Perez in July of 1980 on Soledad Street in front of the same complex. He further recalled that, at that time, a relative of Albert's named Irma Perez was living in the complex, but he could not remember which apartment she lived in. Additionally, Detective Miller remembered that in early 1982, he had talked to Albert in this area. At that time, Albert said he was residing at the complex (according to Detective Miller's testimony).

Not knowing which apartment Irma Perez lived in, the three officers radioed the police dispatcher, asking for the address that was marked on Albert Perez's 1980 arrest report. Because the dispatcher was unable to assist, the officers drove to a

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nearby telephone and called the Santa Barbara Sheriff's narcotics detail to obtain the address. Detective Simmons was told that the address was apartment number 3 at 13 Soledad Street. While driving back to the apartment complex, a detective's message came over the radio. Sergeant Nalls testified that he interpreted the detective to have said that Albert lived in Apt. 3. 1 When the officers asked the dispatcher to cross-index the address, the dispatcher informed them that Irma Perez lived at apartment 3.

The officers planned to search the apartment and radioed for assistance from a uniformed officer. As they were waiting for the backup car, Detective Miller observed a Mr. William Roberts exit the complex. Detectives Miller and Simmons knew Roberts, since they previously had arrested him. Detective Miller approached Roberts and asked which apartment Albert Perez lived in. According to Detective Miller's testimony, Roberts responded that Albert lived in Apt. 3, and when asked if that was Irma's apartment, Roberts responded that it was. Detective Miller also testified that he asked Roberts if he had seen Albert recently, and Roberts replied that he had not. Roberts' testimony conflicted with Miller's; Roberts testified that he told the officers Albert did not live there, but that he had seen Albert walking down the street five or ten minutes earlier.

When the uniformed police officer--Officer Meske--arrived, all four officers went to Apt. 3 intending to apprehend Albert, though they had no arrest warrants with them. Detective Simmons' testimony at trial indicated that the officers believed Albert was staying at Irma's apartment. Sergeant Nalls testified that he did not check with any city agency to determine whether the apartment was listed to anyone in addition to Irma Perez. Indeed, the defendants do not now claim that any such check was made. Sergeant Nalls testified at trial that the idea of obtaining a search warrant to search Irma Perez's apartment "just didn't occur to [him]."

Sergeant Nalls went to the rear of the apartment, and the other three officers went to the front door, knocked, and stated that they were police officers looking for Albert Perez, that they believed he was in the apartment, and that they had a warrant for his arrest. They then requested consent to search. Detective Miller testified that Irma Perez opened the door and stated that Albert was not there, did not live there, and had never lived there. She demanded to see the arrest warrant. When the officers failed to produce it, she refused to consent to a search and began closing the door. At that point, Detectives Simmons and Miller shoved open the door and all of the officers entered.

The three plainclothes officers went upstairs and Officer Meske stayed downstairs. Irma Perez testified that after some conversation between her and Officer Meske, Officer Meske grabbed her from behind, threw her into a wooden rocking chair, and pinned her down with one knee on her leg and both of his hands on both of her wrists. She further testified that after approximately 30 seconds he let her up.

The officers did not find Albert Perez in the apartment. When the officers were on their way out of the apartment, Irma went to the telephone in the kitchen and dialed 911. She told the dispatcher that she wanted to "speak to somebody about policemen harassing me...." The dispatcher told her to call the non-emergency number for the police. When she was about to make a second call, one of the officers cut off the call by depressing the receiver. Perez testified that she threw the telephone to the floor in anger. She was then spun around, thrown against the wall, handcuffed and told she was under arrest for harboring a fugitive.

Perez testified that she was led out the door in front of gathering neighbors to the police car, and was thrown into the vehicle with such force that her right shoulder slammed against the door frame, causing

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her pain. Irma was first taken to the Santa Barbara police station, and then to jail. She was released after posting $250 bail. The district attorney declined to prosecute her.

Perez brought this action under 42 U.S.C. Sec. 1983 against the City of Santa Barbara and the four officers who entered her house. She claimed that the officers violated her civil rights by: (1) unlawfully searching her apartment without her consent or a search warrant; (2) falsely arresting her for harboring a fugitive; (3) using excessive force against her prior to and during the arrest; and (4) depriving her of her rights to free speech by preventing her from making the second phone call to the police and by arresting her in retaliation for insulting comments she directed at them. Her first cause of action was against the four police officers, and her second cause of action was against the City on a theory of municipal liability.

The case was tried before a jury. Upon conclusion of Perez's case-in-chief, the court granted the City's motion for a directed verdict and dismissed the second cause of action. The first cause of action was sent to the jury. The jury was provided a special verdict form which segregated issues of qualified immunity from issues of whether Perez's constitutional rights were violated. The jury unanimously found that the police officers did not violate any of Perez's constitutional rights; thus, they failed to reach any issues of qualified immunity.

On appeal, Perez challenges several of the jury instructions. Because we find reversible error in the instructions pertaining to the entry and search of her home, we need not address whether the other instructions were proper. We also conclude that the directed verdict in favor of the City was granted in error.



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