946 F.2d 630 (9th Cir. 1991), 89-55541, Larez v. City of Los Angeles

Docket Nº:89-55541, 89-55801.
Citation:946 F.2d 630
Party Name:Jessie LAREZ, Armida Larez, Albertdee Larez, Frank Larez, Katsumi Larez, Diane Larez, and Keiko Larez, Plaintiffs-Appellees, v. CITY OF LOS ANGELES, Daryl Gates, Dennis Keller, William Holcomb, Dennis Fanning, John Sequist, Edward Ortiz, and Rudolph Navarro, Jr., Defendants-Appellants.
Case Date:September 27, 1991
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit
 
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946 F.2d 630 (9th Cir. 1991)

Jessie LAREZ, Armida Larez, Albertdee Larez, Frank Larez,

Katsumi Larez, Diane Larez, and Keiko Larez,

Plaintiffs-Appellees,

v.

CITY OF LOS ANGELES, Daryl Gates, Dennis Keller, William

Holcomb, Dennis Fanning, John Sequist, Edward

Ortiz, and Rudolph Navarro, Jr.,

Defendants-Appellants.

Nos. 89-55541, 89-55801.

United States Court of Appeals, Ninth Circuit

September 27, 1991

Argued and Submitted Feb. 8, 1991.

As Amended Oct. 7, 1991.

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Richard M. Helgeson, Asst. City Atty., Jeffrey Nelson, Deputy City Atty., and James K. Hahn, City Atty., Los Angeles, Cal., for defendants-appellants.

Marion R. Yagman, Stephen Yagman, Yagman & Yagman, P.C., Venice, Cal., for plaintiffs-appellees.

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

Before BOOCHEVER, HALL and RYMER, Circuit Judges.

BOOCHEVER, Circuit Judge:

Six officers of the Los Angeles Police Department (LAPD), Chief of Police Daryl Gates, and the City of Los Angeles appeal from the district court's denial of their motion for a new trial after jury verdicts against them in a civil rights trial based on a search of the home of the Larez family. We affirm the denial of the new trial motion as to the six officers, but, because of

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the erroneous admission of hearsay evidence, which we cannot say was harmless, we reverse and remand for a new trial as to Gates and the City.

BACKGROUND

The civil rights action which is the subject of this appeal arises out of an LAPD search of the Larez home. 1 Because a jury found that the Larezes' constitutional rights had been violated by an unreasonable search executed through the use of excessive force, we state all the relevant facts, in the light most favorable to the plaintiffs, although some of the material facts were contradicted by the testimony of the officers. See Hammer v. Gross, 932 F.2d 842, 844 (9th Cir.1991) (en banc); United States v. Alfonso, 759 F.2d 728, 740 (9th Cir.1985) ("On appeal the evidence must be viewed in the light most favorable to the verdict.") (citation omitted). See also Bordanaro v. McLeod, 871 F.2d 1151, 1153 (1st Cir.1989) (stating facts in light most favorable to prevailing party in § 1983 action).

Less than one week prior to the search, certain LAPD officers visited the Larez home to contact Edward Larez (one of the Larez sons who is not a plaintiff in this action) regarding a suspected gang killing. His mother, Armida, told them Eddie was not home but consented to a search of the residence. When her husband, Jessie, encountered them, he told them to get out. Officers Keller and Holcomb (both defendants in this action), who had their guns drawn and pointed at Jessie, told him they had "every damn fucking right to be on [the Larez] property." As the officers were leaving the Larez home, one of them assured another, "don't worry about it[,] Holcomb will get the son of a bitch."

In the meantime, a man named Richard Jimenez confessed to the gang-related murder. Nonetheless, LAPD officers from the CRASH (Community Resources Against Street Hoodlums) division obtained a search warrant for the Larez home because they believed that the murder weapon used by Jimenez might be found there as he and Eddie were friends. At approximately 7:00 a.m., the six officers named as defendants here, Dennis Keller, William Holcomb, Dennis Fanning, John Sequist, Edward Ortiz, and Rudolph Navarro, executed the warrant. Although they had not applied for a nighttime entry, or a no-knock warrant, both of which are utilized in cases involving potential danger, the CRASH unit conducted a "crisis entry" which involved breaking the back windows of the house to create a diversion ostensibly aimed at making a front entry safer.

Upon entering the Larez home, the officers physically and verbally mistreated members of the family. They hurled Jessie across the room, grabbed him by the hair, forced him to lie face down on the floor where one of the officers held Jessie down with his knee on Jessie's neck and handcuffed him. Police kicked him and smashed his face into the floor. The officers laughed and sneered; they told him they had him where they wanted him. At one point Officer Holcomb pointed his service revolver at Jessie's head and said to him, "I could blow your fucking head off right here and nobody can prove you did not try to do something." Officer Keller told Jessie, "we finally got you motherfucker." Jessie sustained a broken nose during the incident. His knees required arthroscopic surgery, and neck surgery was recommended to alleviate the headaches which have persisted since the incident.

Police yelled to Diane to "get up here with that fucking baby," referring to her infant. Upon approaching, she was seized by her waist-long hair and arm and thrown face first to the floor where she, too, was handcuffed. Upon lifting her head to instruct a family member to take her baby away, Officer Keller grabbed Diane's hair and banged her head to the floor, demanding she "put [her] fucking face on the floor."

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Katsumi, who was sleeping in his room attached to the garage at the time of the search, was awoken when his door was kicked in by police. An officer pointed his gun at Katsumi and shouted, "I'll blow your fucking head off." He was taken to the living room where he and his brother Frank, like Jessie and Diane, were also proned out on the floor and handcuffed. Katsumi was kicked in the head and side by Officer Holcomb.

The police left the Larez home "turned upside down." Pots, pans, and dishes had been taken from their cabinets and thrown to the floor, and various objects kept on the bar, as well as the VCR, had been thrown on the TV room floor. Katsumi's room looked as if a "hurricane [had] whipped through it." Albertdee saw beds turned over, clothing in heaps on the floor, broken crockery in the kitchen, and broken windows. His bedroom posters had been ripped from the walls, his punching bag had been cut open, and his plants had been dislodged from their pots. Jessie's prized Japanese albums, obtained while he was stationed in Japan, were broken by the defendants. Other broken items included a pitcher, a crockpot, a figurine, a dish, a vase, a music box, a lamp, a rice cooker, a coffee pot, wall paneling, a clock, a sliding glass door, picture frames, and a camera lens.

Jessie lodged a complaint with the LAPD. The department's Internal Affairs division assigned a CRASH detective not involved in the Larez search to investigate the complaint. In a letter signed by Chief Gates, Jessie ultimately was notified that none of the many allegations in his complaint could be sustained. The instant suit followed.

The Larezes' theory at trial was that the six individual officers had violated their constitutional rights to be free from unreasonable searches accompanied by the use of excessive force. Moreover, they complained about the disarray in which their home was left. Against Chief Gates and the City, the Larezes alleged the perpetuation of unconstitutional policies or customs of excessive force, illegal searches including official tolerance for the destruction of property during such searches, and inadequate citizen complaint procedures which have the effect of encouraging the excessive use of force.

Trial was bifurcated between the case against the six officers and the case against the Gates and the City. After the Larezes prevailed against the six officers, Gates and the City moved to dismiss the case against them contending that, because plaintiffs were fully awarded compensatory damages in the first phase of the trial, nothing was left to be adjudicated. The motion was denied.

At trial on the liability of Gates and the City, the Larezes called as an expert, Dr. James J. Fyfe, the Chairman of and a Professor in the Department of Justice, Law, and Society at American University. Fyfe was formerly a New York City police officer, and was qualified as an expert on proper police procedures and policies. Fyfe criticized the manner in which LAPD investigated Jessie's complaint. In his view, it was "totally inappropriate" and not "in accord with generally accepted police custom and practice" that CRASH, the unit responsible for the alleged constitutional violations, rather than Internal Affairs, conducted the investigation. According to Fyfe, the investigation "contain[ed] a lot of holes and [left] questions unanswered that should have been visible to any reasonable police administrator." He testified that, since both Internal Affairs and Gates did not question it, but instead ratified it, the investigation procedure must be deemed to have been carried out in accordance with official policy.

Fyfe testified about a two-year comparative study he had previously conducted of citizens' complaints and departmental complaints against LAPD officers. He found that complaints brought against officers by the department were almost always sustained while citizen complaints were rarely sustained. Indeed, he noted that pursuant to the LAPD citizen complaint procedure it is "almost impossible for a police officer to suffer discipline as a result of a complaint lodged by a citizen," noting that it is as if

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"something has to be done on film for the department to buy the citizen's story." This supported the Larezes' theory that officers were encouraged by the absence of independent witnesses to use excessive force, knowing that complaints involving a credibility duel between citizen and officer are never sustained. Although this comparative study covered only June 1979 through June 1981, neither Gates nor the City introduced any...

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