Los Angeles Police Protective League v. Gates

• Decision Date: 18 September 1990
• Docket Number: No. 88-6504,88-6504
• Citation: 907 F.2d 879
• Parties: LOS ANGELES POLICE PROTECTIVE LEAGUE, Plaintiff, and Roger Gibson, Plaintiff-Appellee, v. Daryl F. GATES, Chief of Police; Marvin Iannone; Charles Dinse; Don Vincent; Kenneth Colby; Robert Kellar; Harry Nearing; City of Los Angeles, Defendants-Appellants.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 879

907 F.2d 879

LOS ANGELES POLICE PROTECTIVE LEAGUE, Plaintiff and Roger Gibson, Plaintiff-Appellee, v. Daryl F. GATES, Chief of Police; Marvin Iannone; Charles Dinse; Don Vincent; Kenneth Colby; Robert Kellar; Harry Nearing; City of Los Angeles, Defendants-Appellants.

No. 88-6504.

United States Court of Appeals Ninth Circuit.

Argued and Submitted April 12, 1990.

Decided July 3, 1990.

As Amended on Denial of

Rehearing Sept. 18, 1990.

Jack L. Brown, Asst. City Atty., Los Angeles, Cal., for defendants-appellants.

Larry J. Roberts and Gregory G. Petersen, Petersen & Trott, Orange, Cal., for plaintiff-appellee.

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

Before BROWNING, NOONAN and FERNANDEZ, Circuit Judges.

FERNANDEZ, Circuit Judge:

Roger Gibson and the Los Angeles Police Protective League brought this action against the City of Los Angeles (City) and a number of employees of the Los Angeles Police Department (LAPD). Gibson, who had been a sergeant in the LAPD, claimed that his constitutional rights were violated when he was ordered to submit to an administrative search of his home and then terminated both for refusing to submit, and for other reasons.

The district court granted Gibson summary judgment on the claims that the discipline imposed for his refusal to consent to the search violated his constitutional rights, and it determined that the individual employees were not entitled to qualified immunity for their part in that violation. The court also determined, by way of summary judgment, that Gibson's due process rights were violated when he was not allowed to personally address the Chief of the LAPD before he was terminated. The court left the determination of damages for those violations to the decision of the jury.

The jury returned a special verdict of $2,887,000 in compensatory damages for those and other violations. It also awarded $55,000 in punitive damages. The jury apportioned the compensatory damage verdict to various of the defendants and indicated the amount it was awarding for each violation. The district court then granted a remittitur down to $1,000,000, which it later increased to $1,550,000. Gibson accepted the latter remittitur.

The City and the LAPD employees (sometimes collectively referred to as appellants) have all appealed from the judgment against them. They assert that the court erred when it granted summary judgment to Gibson on the search, immunity, and due process issues. Moreover, they assert error in an evidentiary ruling, and in the failure of the court to grant a judgment notwithstanding the verdict.

We affirm in part, reverse in part, and remand for further proceedings.

BACKGROUND FACTS

This case is a by-product of an investigation of widespread corruption in the Hollywood Division of the LAPD. In late 1981, the LAPD was informed that several members of the Hollywood Division appeared to be committing burglaries while on duty. Investigation of those charges was turned over to the LAPD's Internal Affairs Division (IAD). Captain Donald Vincent was the commanding officer of that division, and Charles Dinse was the Assistant Chief Investigator. Kenneth Colby, Robert Kellar, and Harry Nearing worked as investigators under the direction of Dinse.

On December 7, 1981, IAD set up a sting operation and caught two police officers stealing property. Gibson had been at the sting site that day. However, the IAD did not find any evidence that Gibson had participated in that burglary. The IAD continued its investigation and Gibson soon became a suspect.

In March of 1982, the IAD interviewed one of the police officers arrested at the sting site. That officer told the IAD investigator that he had been told that Gibson had been involved in various burglaries.

The officer stated that he had heard that Gibson had stolen a car battery during a burglary in August of 1981. The officer's information prompted the IAD to obtain an administrative search warrant for Gibson's garage and automobiles. Before the IAD obtained the warrant, Vincent consulted with an Assistant City Attorney, Catharine Vale, to determine whether the IAD could legally search Gibson's garage if the IAD only had an administrative warrant. Vale, whose primary duties involved giving advice to LAPD, advised Vincent that the search would probably not be legal, but that he could order Gibson to submit to the search and if Gibson refused, he could charge Gibson with insubordination.

On April 15, 1982, Investigators Kellar and Colby served Gibson with an administrative warrant to search his garage and the automobiles in the garage. Gibson refused to allow the investigators to conduct the search. Gibson was subsequently charged with insubordination.

Eventually, the LAPD charged Gibson with various disciplinary violations. The Board of Rights, LAPD's disciplinary review body, held a hearing on the charges. The Board found Gibson not guilty of committing on-duty burglaries but found Gibson guilty of insubordination and guilty of lying to investigators. Gibson was terminated from the police force.

Gibson then filed this action against Vincent, Dinse, Colby, Kellar, Nearing, Marvin Iannone (the person who had been Acting Chief of Police when Gibson was suspended), the Chief of Police, Daryl F. Gates, and the City. Gibson claimed that the way in which the appellants had conducted the IAD investigation and the Board of Rights hearing had violated Gibson's constitutional rights, as had the issuance and use of the administrative search warrant.

JURISDICTION AND STANDARD OF REVIEW

The district court had jurisdiction pursuant to 28 U.S.C. Sec. 1343. We have jurisdiction pursuant to 28 U.S.C. Sec. 1291.

We review a district court's grant of summary judgment de novo. Kruso v. International Tel. & Tel. Corp., 872 F.2d 1416, 1421 (9th Cir.1989). We also review a district court's denial of a defense of qualified immunity de novo. Tribble v. Gardner, 860 F.2d 321, 323 (9th Cir.1988), cert. denied, --- U.S. ----, 109 S.Ct. 2087, 104 L.Ed.2d 650 (1989). In addition, we review questions of law de novo. United States v. McConney, 728 F.2d 1195, 1201 (9th Cir.) (en banc), cert. denied, 469 U.S. 824, 105 S.Ct. 101, 83 L.Ed.2d 46 (1984).

We review for abuse of discretion a trial judge's decision to exclude evidence based on the federal rules of evidence. Locricchio v. Legal Serv. Corp., 833 F.2d 1352, 1359 (9th Cir.1987).

Finally, if a party has failed to move for a directed verdict at the close of all of the evidence, we will not disturb a district court's denial of a motion for judgment notwithstanding the verdict unless the verdict is in plain error. Cabrales v. County of Los Angeles, 864 F.2d 1454, 1459 (9th Cir.1988). Since appellants did not move for a directed verdict at the close of the evidence it is important to say a few more words about the standard of review. That standard profoundly affects our review of this case. Federal Rule of Civil Procedure 50(b) permits a party who has moved for a directed verdict to then move for a judgment notwithstanding the verdict. The rule does not make any provision for those who have not made a directed verdict motion at the close of all the evidence. However, we have held that a judgment notwithstanding the verdict should still be granted if the verdict was in plain error. "Only where there is such plain error apparent on the face of the record that failure to review would result in a manifest miscarriage of justice" should the appellate court analyze the evidence. Cabrales, 864 F.2d at 1459. That is a very stringent standard, for we will not find plain error unless it is clear from the face of the record that there was "an absolute absence of evidence" on which to base the verdict. Id.

DISCUSSION

Appellants have raised numerous issues which draw upon various legal principles. Due to the fact that some of those principles affect a number of the issues, we will fully discuss them when they first arise and will then simply refer back to them at later points in this opinion.

The issues subtended by this case are as follows:

(1) Did the district court err when it determined that due to the unconstitutionality of the administrative search order there was a violation of Gibson's constitutional rights when he was charged with insubordination for refusing to obey that order?

(2) If Gibson's rights were violated by the administrative search order, were the individual appellants entitled to a finding of qualified immunity, or absolute immunity, and was the City itself liable for that violation?

(3) Was Gibson entitled to a personal meeting with Acting Police Chief Iannone before Iannone suspended him from duty without pay?

(4) Did the district court err when it did not admit into evidence the whole of the transcript from the Board of Rights hearing?

(5) Was there evidence to support the verdict against the appellants? More particularly, (a) did appellants Gates, Iannone, Vincent or the City know that Gibson had not committed theft of a battery, (b) was the City responsible for the failure to give Gibson adequate time to respond to the charges before he was suspended, (c) were any of these defendants responsible for the failure of LAPD to provide Gibson with materials before his suspension, or before his case was heard at the Board of Rights, and (d) were any of the defendants responsible for failing to give Gibson an adequate opportunity to clear himself at the Board of Rights hearing?

(6) What should this court order, in light of its decision on the first five issues, given the form that the remittitur took in this case?

We will discuss each of these issues in turn.

I. The Administrative Search Warrant.

As we have already noted, the IAD obtained an administrative warrant to search Gibson's garage and the automobiles in that garage, and the district court found that the warrant was unconstitutional.

We start with the salutary...