Marks v. Clarke
| Citation | 102 F.3d 1012 |
| Decision Date | 26 February 1997 |
| Docket Number | Nos. 93-36092,s. 93-36092 |
| Parties | 96 Cal. Daily Op. Serv. 9203, 97 Cal. Daily Op. Serv. 1350, 96 Daily Journal D.A.R. 15,215, 97 Daily Journal D.A.R. 2025 James Senator MARKS; Tommy Marks; David Marks, Plaintiffs-Appellees, v. John R. CLARKE; William F. Grub; Stephen W. Keane; Michael Lavelle; Gerald R. Poindexter; Robert VanLeuven; Ralph C. Weir, Defendants-Appellants, James Senator MARKS; Tommy Marks; David Marks, Gypsy Church of the Northwest, Plaintiffs-Appellees, v. John R. CLARKE; William F. Grub; Stephen W. Keane; Michael Lavelle; Gerald R. Poindexter; Robert VanLeuven; Ralph C. Weir, Defendants, and Robert G. Bailor; Denise E. Coker; Monte E. Gaunt; Donald E. Johnson; Richard J. Poole; Nicolis E. Stanley; Michael F. Yates, Defendants-Appellants. James Senator MARKS; Tommy Marks; David Marks, Plaintiffs-Appellees, v. John R. CLARKE; William F. Grub; Stephen W. Keane; Michael Lavelle; Gerald R. Poindexter; Robert VanLeuven; Ralph C. Weir, Defendants, and City of Spokane; Robert Allen; Earl L. Ennis; Lawrence R. Freeman; Clifford Harding; Kenneth R. Krogh; Larry M. Lindskog; Jack E. Neumiller; Andrew J. Pavlischak; Sheldon Reeve, Defendants-Appellants. GYPSY CHURCH OF THE NORTHWEST, Plaintiff-Appellee, v. SPOKANE COUNTY, Defendant, and John R. Clarke; William F. Grub; Stephen W. Keane; Michael Lavelle; Gerald R. Poindexter; Robert VanLeuven; Ralph C. Weir, Defendants-Appellants. GYPSY CHURCH OF THE NORTHWEST, Plaintiff-Appellee, v. SPOKANE COUNTY, Defendant, and Robert G. Bailor; Denise E. Coker; Monte E. Gaunt; Donald E. Johnson; Richard J. Poole; Nicolis E. Stanley; Michael F. Yates, Defendants-Appellants. GYPSY CHURCH OF THE NORTHWEST, Plaintiff-Appellee, v. SPOKANE COUNTY, Defendant, and City of Spokane; Robert Allen; Earl L. Ennis; Lawrence R. Freeman; Clifford Harding; Kenneth R. Krogh; Larry M. Lindskog; Jack E. Neumiller; Andrew J. Pavlischak; Sheldon Reeve, Defendants-Appellants. GYPSY CHURCH OF THE NORTHWEST, Plaintiff-Appellee, and Grover Marks, Plaintiff-Appellee, v. Detective Rick |
| Court | United States Courts of Appeals. United States Court of Appeals (9th Circuit) |
Rocco N. Treppiedi and Jeanie J. Mohler, Assistant City Attorneys, Spokane, WA, Jerry R. Neal and John R. Nelson, Preston Gates & Ellis, Spokane, WA, for defendants-appellants.
Gregg R. Smith, Spokane, WA, Terry E. Thomson, Sternberg, Thomson & Okrent, Seattle, WA, and Patrick K. Stiley, Spokane, WA, for plaintiffs-appellees.
Appeals from the United States District Court for the Eastern District of Washington, Alan A. McDonald, District Judge, Presiding. D.C. Nos. CV-89-00423-AAM, CV-89-00425-AAM.
Before: REINHARDT, TROTT and TASHIMA, * Circuit Judges.
Appellants in this case are twenty-three individual City of Spokane police officers 1 and one individual Spokane County law enforcement officer. 2 Appellees, the plaintiff Gypsy Church of the Northwest and the twenty-six individual plaintiffs in district court cases Marks v. City of Spokane and Gypsy Church v. Spokane County, filed suit under 42 U.S.C. § 1983 in June 1989 alleging that three years earlier, in 1986, appellants and the City of Spokane and Spokane County (the "municipalities") 3 violated their Fourth Amendment rights by unreasonably seeking and unreasonably executing a warrant to search two residences and all the persons present at those residences. On this appeal, appellants challenge four orders of the district court in which that court initially denied all but two of the appellants qualified immunity, certified the interlocutory appeal of its qualified immunity determination as "frivolous" and retained jurisdiction over the proceedings, denied the remaining two appellants qualified immunity and granted partial summary judgment in favor of the plaintiffs. At that point it deemed the qualified immunity appeals no longer frivolous.
Appellants filed their first motions for summary judgment on the basis of qualified immunity in early 1990. District Judge Robert J. McNichols denied the motions on May 30, 1990 because material disputes of fact existed regarding their conduct during the search. In September 1991, Judge McNichols held that the issue whether the search was legal had been fully litigated and resolved, in state criminal proceedings, against both the individual officers and the municipalities and that they were all collaterally estopped from relitigating the search's legality in the present civil action. Later in September 1991, defendants requested the district court to reconsider its order regarding the applicability of collateral estoppel, and Judge McNichols denied the motion. In February 1992, plaintiffs moved for summary judgment, and defendants, in turn, again moved for reconsideration of the collateral estoppel issue. In a March 1992 order, Judge McNichols denied the plaintiffs' motion for summary judgment on the ground that "key issues of vigorously disputed fact" existed and again declined to reconsider its collateral estoppel order. 4 The disputed issues of fact apparently related to questions of which of the individual officers did which acts to which plaintiffs and at what times.
Judge McNichols died before any further significant court proceedings occurred, and the case was reassigned to District Judge Alan A. McDonald. Defendants thereupon moved a third time for reconsideration of Judge McNichols' collateral estoppel determination, and the plaintiffs moved for reconsideration of the denial of their summary judgment motion. On October 21, 1993, Judge McDonald reversed Judge McNichols' collateral estoppel order as it applied to appellants 5 and, because appellants were no longer estopped from arguing that the search was lawful, granted the plaintiffs leave to revise and resubmit their summary judgment motion regarding the liability of the individual officers. In the same order, Judge McDonald denied qualified immunity to all of the individual City officers except Reeve and postponed ruling on the qualified immunity of Reeve and County officer Grabenstein until he ruled on the renewed motion for summary judgment that he expected the plaintiffs to file. 6 The individual City appellants, including Reeve, filed notices of appeal from this order. Reeve appealed the court's failure to rule on his qualified immunity motion, 7 while the other City officers appealed the court's denial of their qualified immunity motions on the merits. Grabenstein did not appeal the October 21, 1993 order until later.
After filing their notice of appeal from Judge McDonald's qualified immunity order, the City appellants filed a motion in the district court to stay the trial set for March 7, 1994 and all other proceedings in the case pending resolution of their interlocutory appeal of the qualified immunity determination. On November 24, 1993, the district court certified their interlocutory appeal as "frivolous," retained jurisdiction as we have allowed under Chuman v. Wright, 960 F.2d 104, 105 (9th Cir.1992), and, accordingly, denied their motion for a stay. Appellants did not seek a stay from this court.
On January 21, 1994, Judge McDonald ruled that Grabenstein and Reeve were entitled to immunity for seeking the warrant to search but denied them immunity for conduct related to the actual search and, in light of his retention of jurisdiction under Chuman, granted the plaintiffs summary judgment on liability as to the search itself, holding that it was conducted pursuant to an invalid warrant. At the same time, the judge reserved certain specific questions as to specific conduct by particular plaintiffs and defendants for trial. The City appellants then filed an amended notice of appeal, appealing the denial of their motion for a stay of proceedings and the summary judgment order. In addition, Reeve's appeal encompassed the denial of his qualified immunity motion. Grabenstein appealed the court's October 21, 1993 failure to grant him qualified immunity in accordance with an extension of time for that purpose granted him earlier by the district court.
Finally, on March 7, 1994, the district court ruled on motions for reconsideration filed by both sides. In this order, Judge McDonald denied Grabenstein and Reeve's request for reconsideration of his denial of qualified immunity to them. He also clarified some of his liability rulings. The City officers filed second amended notices of appeal from Judge McDonald's ruling on the motions for reconsideration and Grabenstein filed another notice of appeal, appealing the district judge's January 21, 1993 order denying his motion for qualified immunity and granting the plaintiffs summary judgment on liability. Grabenstein's notice of appeal was also from Judge McDonald's order deciding the motions for reconsideration.
We review only three of the four orders appellants ask us to review. The district court's November 24, 1993, order certifying appellants' interlocutory appeal as frivolous and refusing the appellants' request for a stay of further proceedings is not appealable. 8 After applying to the district court for a stay, the City appellants should have applied to this court for a discretionary stay to prevent the district court from proceeding to trial. See Chuman, 960 F.2d at 105 n. 1. They failed to do so. We note, however, that the damage to the appellants was limited, because after entering its summary judgment order as to liability and ruling on Grabenstein and Reeve's entitlement to qualified immunity, the district court then certified the City appellants' interlocutory appeal as no longer frivolous and stayed the trial. The three orders we review include among their holdings the denials of appellants' qualified immunity motions in the October 21, 1993, January 21, 1994, and March 7, 1994 orders. 9 See Mitchell v. Forsyth, 472...
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