Trevino v. Gates, s. 95-55290
| Decision Date | 01 November 1996 |
| Docket Number | Nos. 95-55290,95-56100,s. 95-55290 |
| Citation | 99 F.3d 911 |
| Parties | 45 Fed. R. Evid. Serv. 1143, 96 Cal. Daily Op. Serv. 8007, 96 Daily Journal D.A.R. 13,300 Johanna TREVINO, Plaintiff-Appellant, v. Daryl GATES; Tom Bradley; Tom Reddin; Roger Murdock; Ed Davis; Herbert Boeckmann; James Fisk; Stephen Gavin; Maxwell Greenberg; Elbert Hudson; Marguerite Justice; Emmett McGaughey; Salvador Montenegro; Barbara Schlei; Robert Talcott; Reva Tooley; Robert Weil; Samuel Williams; Stephen Yslas; LAPD Officers; Jerry Brooks; Joseph Callian; Warren Sirk; Richard Spellman; Gary Strickland; James Tippings; Richard Zierenberg; Manuel Avila; Charles Bennett; Brian Davis; John Fruge; Joseph Freia; E.T. Guiza; Peter Sanchez; Reginald Weaver; James Toma; C.S. Winston; Philip Wixon; Gary Zerbey; Joel Wachs; Joy Picus; John Ferraro; Zev Yaroslavsky; Ruth Galanter; Ernani Bernardi; Nate Holden; Marvin Braude; Hal Bernson; Michael Woo; Joan Flores; One Hundred Unknown Named Employees or Officials of the City of Los Angeles, all in both their individual and official capacities; City of Los Angeles, Defendants-Appellees. Johanna TREVINO, Plaintiff-Appellant, v. Daryl F. GATES, Chief of Police; Tom Bradley; Tom Reddin; Roger Murdock; Ed Davis; Herbert Boeckmann; James Fisk; Stephen Gavin; Maxwell Greenberg; Elbert Hudson; Marguerite Justice; Emmett McGaughey; Salvador Montenegro; Barbara L. Schlei; Robert Talcott; Reva B. Tooley; Robert Weil; Samuel L. Williams; Stephen D. Yslas; Jerry Brooks; Joseph Callian; Warren Eggar; David B. Harrison; John Helms; Michael Sirk; Richard Spellman; Gary Strickland; James Tippings; Richard Zierenberg; Manuel Avila; Charles Bennett; Brian Davis; John Fruge; Joseph Freia; E.T. Guiza; Peter Sanchez; Reginald Weaver; James Toma; C.S. Winston; Philip Wixon; Gary Zerbey; Joel Wachs; Joy Picus; John Ferraro; Zev Yaroslavsky; Ruth Galanter; Ernani Bernardi; Nate Holden; Marvin Braude; Hal Bernson; Michael Woo; Joan Milke Flores; One Hundred Unknown Named Employees/Officials of the City of Los Angeles, all in both their individual |
| Court | U.S. Court of Appeals — Ninth Circuit |
Stephen Yagman, Yagman & Yagman, Venice, CA, for plaintiff-appellant.
Katherine J. Hamilton, Assistant City Attorney, Los Angeles, CA; Louis R. Miller and Jonathan H. Anschell, Christensen, White, Miller, Fink & Jacobs, Los Angeles, CA, for defendants-appellees.
Appeals from the United States District Court for the Central District of California, J. Spencer Letts, District Judge, Presiding. D.C. No. CV-92-01981-JSL.
Before: D.W. NELSON, T.G. NELSON, and THOMAS, Circuit Judges.
Plaintiff Johanna Trevino is the daughter of Juan Bahena, one of three men killed by Los Angeles Police Department ("LAPD") officers during a robbery. Among other claims, Trevino alleged that the City of Los Angeles ("City") and members of the Los Angeles City Council ("Councilmembers")
deprived her of her civil rights in violation of 42 U.S.C. § 1983 by indemnifying LAPD officers against punitive damage liability in excessive force cases. Trevino appeals the district court's entry of summary judgment for the Councilmembers and the City, along with numerous other issues. We affirm all of the district court's rulings, with the exception of the attorneys' fees award.
Juan Bahena was fatally shot by LAPD officers shortly after he and three accomplices robbed a McDonald's restaurant on February 12, 1990. While leaving the scene, Bahena and the other perpetrators were surrounded by police officers. Believing the burglars to be pointing guns in their direction, the officers opened fire, killing three of the four suspects. None of the perpetrators were bearing actual firearms, only pellet guns.
Trevino's grandmother and survivors of the other victims sued the officers involved, the police chief and the City of Los Angeles for violations of 42 U.S.C. § 1983 based on the use of excessive force. Gomez v. Gates, 804 F.Supp. 69 (C.D.Cal.1992). Trevino was not a party to the lawsuit. The Gomez jury found the police chief and the officers involved liable, awarded nominal compensatory damages of $1 and a total of $44,000 in punitive damages in varying amounts against the LAPD officers. After deliberating for two days, the City Council voted to pay the punitive damage award pursuant to Cal. Gov.Code § 825(b).
Trevino then filed a lawsuit against the officers involved, the Councilmembers and the City under 42 U.S.C. § 1983. She sued the officers on substantially the same theories her grandmother asserted in Gomez represented by the same lawyer as her grandmother had been. Trevino also sued the City and Councilmembers on the theory that punitive damage indemnification encouraged excessive force and caused a deprivation of her constitutional rights. Alternatively, she claimed the Council's decision to pay the Gomez punitive damage award was an unconstitutional ratification of LAPD's excessive force.
In 1993, the district court held Trevino was collaterally estopped from relitigating punitive damage liability because the Gomez verdict had already determined the issue. The district court limited punitive damages to $9,109, the highest amount awarded to any plaintiff in Gomez. The defendant officers stipulated to a total punitive damages award of $9,109. The only remaining issue to be litigated against the officers was the compensatory damages due to Trevino.
After two mistrials, trial was reset for December 6, 1994. The district court granted summary judgment to the City and the Councilmembers. At trial, the jury awarded Trevino only nominal damages against the officers. The district court entered judgment in the amount of $1 plus $9,109 in stipulated punitive damages. Trevino moved for attorney's fees in the amount of $495,885 under 42 U.S.C. § 1988. The district court awarded $25,000.
Trevino contends that the district court erred in granting summary judgment for the Councilmembers on the grounds of qualified immunity. We review the court's grant of qualified immunity and summary judgment de novo. Neely v. Feinstein, 50 F.3d 1502, 1507 (9th Cir.1995); Warren v. City of Carlsbad, 58 F.3d 439, 441 (9th Cir.1995); cert. denied, --- U.S. ----, 116 S.Ct. 1261, 134 L.Ed.2d 209 (1996). Qualified immunity is an immunity from suit. Act Up!/Portland v. Bagley, 988 F.2d 868, 872 (9th Cir.1993). Public officials sued under 42 U.S.C. § 1983 are entitled to qualified immunity if:
(1) the "right" they allegedly violated was not "clearly established" at the time of the violation, or
(2) if a reasonable [official] would have thought that the defendants' actions were constitutional.
Palmer v. Sanderson, 9 F.3d 1433, 1435 (9th Cir.1993) (citations omitted); see also Neely, 50 F.3d at 1507. The plaintiff has the burden of proving that the right allegedly violated Trevino has alleged that the Councilmembers, by engaging in a policy of routinely voting to pay punitive damages, violated Trevino's constitutional rights by promoting and ratifying the use of excessive force by the LAPD. Although this issue is contested, we will assume for purposes of this analysis only that the City Council actions constituted a custom or policy of indemnifying officers for punitive damage awards.
was clearly established. Id. at 1509. If the plaintiff meets this burden, then the defendant must prove that his conduct was "reasonable even though it might have violated the law." Id. "The threshold determination of whether the law governing the conduct at issue is clearly established is a question of law for the court." Act Up!, 988 F.2d at 873
Under the first part of the qualified immunity test, Trevino must demonstrate that the policy violated clearly established law.
To be clearly established, the law must be sufficiently clear that a reasonable official would understand that what he is doing violates that right. It is not necessary that the alleged act have been previously declared unconstitutional, as long as the unlawfulness was apparent in light of preexisting law.
Newell v. Sauser, 79 F.3d 115, 117 (9th Cir.1996) (citation and internal quotations omitted, emphasis added). To determine whether law is clearly established, we "survey the legal landscape" and examine those cases that are "most like" the instant case. Figueroa v. United States, 7 F.3d 1405, 1409 (9th Cir.1993), cert. denied, 511 U.S. 1030, 114 S.Ct. 1537, 128 L.Ed.2d 190 (1994). "In the absence of binding precedent, we look to all available decisional law." Id. (citations and internal quotations omitted).
A survey of the legal landscape demonstrates that the law is not sufficiently clear that a reasonable Councilmember would understand that payment of punitive damages violates any constitutional right either now or prior to the fatal shooting.
First, a municipality's payment of punitive damages under Cal. Govt.Code § 825(b) does not violate federal law. 1 Cornwell v. City of Riverside, 896 F.2d 398, 399 (9th Cir.), cert. denied, 497 U.S. 1026, 110 S.Ct. 3274, 111 L.Ed.2d 784 (1990). Indeed, as the court noted in Cornwell, a municipality's payment of punitive damages may have the salutary purpose of assuring that civil rights plaintiffs can collect their judgments. Id. at 400.
Second, cases from other jurisdictions have held that a punitive damages indemnification policy could not cause a constitutional deprivation. Ekergren v. City of Chicago, 538 F.Supp. 770, 772-773 (N.D.Ill.1982); Brown v. City of Chicago, 573 F.Supp. 1375, 1379 (N.D.Ill.1983).
Third, under California law, indemnification is discretionary, subject to certain restrictions. Cal. Gov.Code § 825(b). In making its indemnification decision, the municipality uses its own independent judgment as to the underlying facts. "That the city reaches a different result...
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