952 F.2d 321 (9th Cir. 1991), 90-15314, Curnow By and Through Curnow v. Ridgecrest Police

Docket Nº:90-15314.
Citation:952 F.2d 321
Party Name:Kenneth Christopher CURNOW, a minor, by and through his guardian ad litem, Sandra CURNOW; Ken Curnow; Sheila Efflandt; Sandra Curnow, as administratrix of the estate of Steven Murray Curnow, deceased; Cris Curnow; and Sandra Curnow, as an individual, Plaintiffs-Appellees, v. The RIDGECREST POLICE, a municipal law enforcement agency; the City of Rid
Case Date:December 26, 1991
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit
 
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Page 321

952 F.2d 321 (9th Cir. 1991)

Kenneth Christopher CURNOW, a minor, by and through his

guardian ad litem, Sandra CURNOW; Ken Curnow; Sheila

Efflandt; Sandra Curnow, as administratrix of the estate of

Steven Murray Curnow, deceased; Cris Curnow; and Sandra

Curnow, as an individual, Plaintiffs-Appellees,

v.

The RIDGECREST POLICE, a municipal law enforcement agency;

the City of Ridgecrest, a municipal corporation; the State

of California, a sovereign state; the County of Kern, a

municipal corporation; Edward John Luarca, a/k/a E.J.

Luarca; Stephen Compton; Randy Gene Bias; Jeffrey

Krueger; Kurt Fowler; Jerry Linenkugel; Garry Davis;

Chris Davis; Bob Pratt; and Edward R. Jagels, Defendants-Appellants.

No. 90-15314.

United States Court of Appeals, Ninth Circuit

December 26, 1991

Submitted May 16, 1991[*]

Page 322

Dorothy Crisp, Wayne K. Lemieux, Westlake Village, Cal., for defendants-appellants.

Carl K. Osborne, Los Angeles, Cal., and Elliott L. Aheroni, Encino, Cal., for plaintiffs-appellees.

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

Before ALARCON and RYMER, Circuit Judges, and McDONALD [**], District Judge.

McDONALD, District Judge:

Defendants appeal the district court's denial of their motion for summary judgment based upon qualified immunity. We affirm.

Plaintiffs-appellees, the estate of Steven Curnow, his parents, and his children, filed this action in the United States District Court for the Eastern District of California against the defendants-appellants, City of Ridgecrest police officers. The claims which are the subject of this appeal are brought pursuant to 42 U.S.C. §§ 1981, 1983, and 1985.

After plaintiffs-appellees filed their third amended complaint, defendants-appellants moved for summary judgment on the basis of qualified immunity. The district court denied defendants-appellants' motion on the basis that genuine issues of material facts precluded issuance of summary judgment.

According to defendants-appellants, on April 5, 1986, at approximately 10:00 p.m. the decedent, Steven Curnow, and Mercedes Taylor were standing in the kitchen of Curnow's home when a window was shattered by an object from outside the home. Curnow and Taylor both believed that someone had shot at them and therefore, called the police department. As plaintiffs-appellees admit, Curnow then retrieved an HK-91, a semi-automatic rifle, from the closet.

Upon arrival at the scene, the police questioned the occupants of a house next to Curnow's before proceeding to Curnow's residence.

After examining the broken window and determining that no shots were fired, the police were allowed to enter the house and continue the investigation. Curnow showed Officer Randy Bias the HK-91 and asked Bias if it was legal to have such a weapon. Bias informed Curnow that it was.

During the investigation Bias learned that Taylor had been threatened by her ex-husband. After the officers left the scene, Officer Edward Luarca went to Taylor's ex-husband's residence to question him. Taylor's ex-husband denied any involvement with the breaking of the window.

Upon writing his report of the incident, Officer Bias was ordered by his supervisor to contact the neighbors at 421 Florence to determine if they saw anything or knew anything about the window-breaking incident.

Page 323

On the following evening, April 6, 1991, Officer Bias interviewed the neighbors regarding any noise they might have heard or any other disturbances of the night before. When Bias left the neighbor's home he heard shouting coming from Curnow's home. He walked across the common driveway, looked into Curnow's window and allegedly saw Curnow bent over Mercedes Taylor slapping and shaking Taylor and pleading with her to wake up. Bias then returned to the patrol car and called for backup. Officer Luarca arrived at the scene, went to the same window that Officer Bias had looked through and saw the same thing that Bias had seen.

Bias and...

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