Ward v. City of San Jose
| Citation | 967 F.2d 280 |
| Decision Date | 16 June 1992 |
| Docket Number | Nos. 90-15077,90-15166,90-15846 and 90-15848,90-15121,s. 90-15077 |
| Parties | John WARD, individually and as Administrator of the Estate of Anton Ward; Helen Ward; Helen Ward Tucker; Betty Ward Fisher; Jean Ward Thompson; Lillie Ward Manns, Plaintiffs-Appellees, v. CITY OF SAN JOSE, a municipal corporation; Joseph D. McNamara, individually and as Chief of San Jose Police Department, Defendants, and Richard Vasquez, individually and as police officer of the City of San Jose; James Rodrigues, individually and as police officer of the City of San Jose; Humberto Renteria, individually and as volunteer reserve police officer of the City of San Jose, Defendants-Appellants. John WARD, individually and as Administrator of the Estate of Anton Ward; Helen Ward; Helen Ward Tucker; Betty Ward Fisher; Jean Ward Thompson; Lillie Ward Manns; Sabrina Ward, minor, Plaintiffs-Appellants, v. CITY OF SAN JOSE, a municipal corporation; Joseph D. McNamara, individually and as Chief of San Jose Police Department; Richard Vasquez, individually and as police officer of the City of San Jose; Humberto Renteria, individually and as volunteer reserve police officer of the City of San Jose, Defendants-Appellees. John WARD, individually and as Administrator of the Estate of Anton Ward, Plaintiff, and Delissa WARD, guardian ad litem of minor Sabrina Ward; Sabrina Ward, minor, Plaintiffs-Appellants, v. CITY OF SAN JOSE, a municipal corporation; Richard Vasquez, individually and as police officer of the City of San Jose; James Rodrigues, individually and as police officer of the City of San Jose; Humberto Renteria, individually and as volunteer reserve police officer of the City of San Jose, Defendants-Appellees. John WARD, individually and as Administrator of the Estate of Anton Ward; Helen Ward; Helen Ward Tucker; Betty Ward Fisher; Jean Ward Thompson; Lillie Ward Manns, Plaintiffs-Appellees, v. CITY OF SAN JOSE, a municipal corporation, Defendant, and Richard Vasquez, individually and as police officer of the City of San Jose; James Rodrigues, individually and as police of |
| Court | United States Courts of Appeals. United States Court of Appeals (9th Circuit) |
Ralph C. Greene, Chief Trial Atty. and David K. Huskey, Sr. Deputy City Atty., Office of the City Attorney, San Jose, Cal., for defendants-appellants-cross-appellees.
William B. Chapman, Mark A. White, and David Nied, of Rogers, Joseph, O'Donnell & Quinn, San Francisco, Cal., M. Jean Starcevich, San Jose, Cal., for plaintiffs-appellees-cross-appellants.
Appeal from the United States District Court for the Northern District of California.
Before WALLACE, Chief Judge, GOODWIN and FLETCHER, Circuit Judges.
The opinion filed in the above case on November 4, 1991, is amended as follows:
With the above amendments, the panel as constituted above has voted to deny the petition for rehearing and to reject the suggestion for rehearing en banc.
The full court has been advised of the suggestion for rehearing en banc, and no judge of the court has requested a vote on the suggestion for rehearing en banc. Fed.R.App.P. 35(b).
The petition for rehearing is denied, and the suggestion for rehearing en banc is rejected.
After three San Jose police officers shot and killed Ward, his estate and family brought this civil suit against the City of San Jose, its police chief, McNamara, and the officers involved. The suit included both federal and state-law claims. The federal claim was brought pursuant to 42 U.S.C. § 1983 for the excessive use of force and a violation of substantive due process. The state-law claim was brought for wrongful death.
The case was tried to a jury, which found liability on the federal claim only. After the district court ruled on the numerous post-trial motions, Ward v. City of San Jose, 737 F.Supp. 1502 (N.D.Cal.1990), all parties appealed. The district court had jurisdiction pursuant to 28 U.S.C. §§ 1331 and 1343(a)(3). We have jurisdiction over this timely appeal pursuant to 28 U.S.C. § 1291. We affirm in part, reverse in part, and remand for a new trial on the excessive force and wrongful death claims.
Ward and others were spending the evening at his home. He drank liquor and ingested cocaine. As Ward walked one of his guests to her car, both Ward and his guest saw three police officers in an adjacent yard. Though the police wore uniforms, it appears that Ward did not recognize them. After Ward's guest departed, Ward decided to "check it out." He followed the police into his neighbor's yard, and they told him to get away. Ward then returned to his house with the remark, "Two white boys told [me] to get the hell in the house."
The police officers were attempting to execute a drug raid on an apartment complex behind Ward's house. The complex was known to the officers as the site of numerous prior drug offenses, and they had previously targeted it in their anti-narcotics efforts. The officers planned to stake out positions behind the complex, wait for suspicious activity, and then send word by police radio to a fourth officer, who would approach the front of the complex in a marked car, flushing the suspects toward the waiting officers.
The police approached the apartment complex through a yard which adjoined the apartment complex and belonged to one of Ward's immediate neighbors. They had previously obtained the owner's permission to cross this property and reconfirmed this permission before entering it this evening. It was at this point, as already observed, that the police briefly encountered Ward, who then returned to his house.
The police made their way through the neighbor's side yard and began climbing over a back fence near a second fence that formed the back border of the apartment complex. They then heard voices from Ward's backyard. Ward had emerged with a shotgun and flashlight. He seems to have become concerned by the possibility of intruders.
The parties dispute the events of the moments that followed. The officers say they identified themselves and commanded Ward to put the weapon down. They say that Ward then leveled the weapon at one of the officers and in response, they fired. Those testifying for Ward say that his first contact with the police came not in the form of self-identification, but rather an extremely bright flashlight. They say the police shouted for Ward to freeze, and when he turned slightly instead, they immediately opened fire. Ward died from the shooting a short time thereafter.
Eight members of the Ward family have asserted an interest in this litigation. The district court dismissed some and permitted others to proceed. Three of the district court's rulings are unchallenged on appeal. Remaining are the interests of decedent's parents and siblings. The district court's determination of the proper plaintiffs is a ruling of law subject to de novo review. Smith v. City of Fontana, 818 F.2d 1411, 1415 (9th Cir.) (Smith ), cert. denied, 484 U.S. 935, 108 S.Ct. 311, 98 L.Ed.2d 269 (1987).
The parents are proper plaintiffs, as concluded by the district court. In Kelson v. City of Springfield, 767 F.2d 651, 655 (9th Cir.1985), we held that "a parent has a constitutionally protected liberty interest in the companionship and society of his or her child." The officers concede the point as a matter of Ninth Circuit law, but urge us instead to follow Valdivieso Ortiz v. Burgos, 807 F.2d 6 (1st Cir.1986), which rejects a parental liberty interest. This we cannot do. See United States v. Salas, 879 F.2d 530, 537 (9th Cir.) ("A three-judge panel of this court cannot disregard or overrule a prior decision of this court."), cert. denied, 493 U.S. 979, 110 S.Ct. 507, 107 L.Ed.2d 509 (1989).
The district court dismissed decedent's siblings. Whether they possess a cognizable liberty interest in their brother's companionship is a question of first impression in this circuit, but our decision in Smith, 818 F.2d at 1411, provides a useful framework. After Smith was killed by Fontana police officers, his spouse and adult children brought a section 1983 action. We held that Smith's spouse could sue as administratrix of his estate, and his children could sue to vindicate a personal liberty interest in their father's companionship. Id. at 1416-17, 1420. We reasoned that "the familial relationship, and not the more narrow custodial interest of the parents, gave rise to the due process action." Id. at 1419. The interests of other family members were not before us in Smith, and we expressly declined to consider them. Id. at 1419 n. 11.
The interests of both parents and siblings were considered, however, by Bell v. City of Milwaukee, 746 F.2d 1205 (7th Cir.1984), a case upon which Smith relies. Bell was shot and killed by Milwaukee police officers, resulting in a section 1983 action. The court concluded that siblings had not been given a place similar to parents in the constitutional or statutory scheme. Id. at 1245-48. It therefore rejected a separately cognizable liberty interest for Bell's siblings. Id. at 1248.
The only other circuit to consider the issue is the Tenth, in Trujillo v. Board of...
To continue reading
Request your trial
-
Thomas v. New York City
...loss of society and companionship under section 1983 where the violation has resulted in a wrongful death. See, e.g., Ward v. City of San Jose, 967 F.2d 280 (9th Cir.1991); Valdivieso Ortiz v. Burgos, 807 F.2d 6 (1st Cir. 1986); Bell v. City of Milwaukee, 746 F.2d 1205 (7th Cir.1984). The c......
-
U.S. v. Reese
...at 1872 (citations omitted). We have acknowledged the implications of the Graham decision in unambiguous terms. See Ward v. City of San Jose, 967 F.2d 280, 285 (9th Cir.1992) ("It is reversible error to give a substantive due process instruction in an excessive force case after Graham."); R......
-
Smith v. City of Hemet
...the Fourth Amendment and its "reasonableness" standard. See Graham v. Connor, 490 U.S. at 395, 109 S.Ct. 1865; Ward v. City of San Jose, 967 F.2d 280, 284 (9th Cir.1992) (as amended). "It is clear that under Graham, force claims arising before or during arrest are to be analyzed exclusively......
-
Estate of Prasad v. Cnty. of Sutter
...Thus Plaintiffs need not allege Fraters's specific intent to interfere with their familial relationship. See Ward v. City of San Jose, 967 F.2d 280, 284 (9th Cir.1991) (rejecting “any such limitation” that would “requir[e familial association plaintiffs] to prove a wrongful intent directed ......
-
Miranda deconstitutionalized: when the Self-Incrimination Clause and the Civil Rights Act collide.
...governmental conduct, rather than the "more generalized notion of 'substantive due process'"); see also Ward v. City of San Jose, 967 F.2d 280, 284 (9th Cir. 1991) ("'[U]nder Graham, excessive force claims arising before or during arrest are to be analyzed exclusively under the [F]ourth [A]......