Wednesday, September 22, 2004
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Ninth Circuit Revives Suit Against LAPD Officers Over Search
By KENNETH OFGANG, Staff Writer/Appellate Courts
Law enforcement officers who searched the home of a parolee’s live-in girlfriend six weeks after he was arrested may be liable for violating her Fourth Amendment rights, the Ninth U.S. Circuit Court of Appeals ruled yesterday.
A divided panel reinstated Darla Motley’s 42 U.S.C. Sec. 1983 action against two Los Angeles police officers, a state parole agent and a federal Bureau of Alcohol, Tobacco and Firearms agent, saying there was sufficient evidence for a jury to determine that the defendants lacked a reasonable belief that they were conducting a valid parole search.
U.S. District Judge Margaret Morrow had granted summary judgment to all defendants, saying the searching officers acted in objective good faith and were entitled to qualified immunity.
But Senior Judge Betty B. Fletcher, writing for the Ninth Circuit, said there were triable issues of fact on the immunity issue. If the plaintiff objected to the search and told the officers that her boyfriend was incarcerated, as she testified in her deposition, it was unreasonable to proceed with the search without attempting to verify her claim, Fletcher said.
Police went to Motley’s apartment as part of a sweep targeting parolees in the Newton Street area. The officer who organized the sweep said he believed that Motley’s boyfriend, Janae Jamerson, was living at the residence based on a check of parole records by a subordinate six weeks before the search.
Officers Briefed
The LAPD officer who actually participated in the March 18, 1999 search, Gregory Kading, said he believed that Jamerson lived at the apartment based on information he received at a department briefing. Two other defendants, parole agent Guadelupe Sanchez and the ATF’s James Black, said they relief on the LAPD’s information.
The defendants insist that Motley told them to go ahead and search, and voluntarily let them into the residence, a claim she denies. Motley claims that after she told the defendants that Jamerson was in custody, they lied to her in several ways: by asserting they had a warrant, by saying his parole officer was present, and by telling her Jamerson had been released a few days earlier.
Motley also claims that the officers insulted her, and threatened to have the couple’s five- week-old son placed in foster care if she did not let them conduct the search. She alleges that after the search began, Kading went into the apartment’s back bedroom and pointed a gun at the infant, who was lying on his back in bed and began crying.
Fletcher said the LAPD supervisor who organized the search, Albert Ruegg, was not entitled to qualified immunity because it was not reasonable to rely on stale information that he did not attempt to verify. The judge also concluded that even if the officers did not know that the information was stale, they should have attempted to verify Jamerson’s whereabouts, either by calling his parole officer or checking state parole records to which the officers had access.
“Once Motley informed them that Jamerson did not live there, all the officers would have had to do is make one phone call to determine whether Jamerson was in custody,” Fletcher wrote.
“They did not. If Motley’s testimony is true, it was not reasonable for the searching officers to believe that Jamerson lived in Motley’s home.”
Harassment Issue
Fletcher added that even if Jamerson had been a resident, Motley’s testimony was sufficient for a jury to find that the search violated the Fourth Amendment because it was conducted in a harassing manner.
“The searching officers showed no respect for Motley, her baby, her home, or her privacy, and lied to her, shoved her, made fund of her, and pointed a gun at her five-week-old baby,” Fletcher wrote.
The appellate panel did uphold the dismissal of City Councilman Bernard Parks, who was chief of police at the time of the search, and former Chief Daryl Gates from the suit. Fletcher said Motley failed to present sufficient evidence to back up her claim that the search was a result of unconstitutional policies established by Parks and Gates.
Fletcher’s opinion was joined by Judge Harry Pregerson. Senior Judge Melvin Brunetti dissented in part.
Brunetti argued that Ruegg, Black, and Sanchez were entitled to qualified immunity and that the case against Kading should proceed to trial only on the allegation that he pointed his gun at the baby.
The officers were reasonable in their belief that Jamerson still lived in the apartment, Brunetti argued, because he had lived there recently and Kading had previously made contact with Jamerson at the residence. The majority, he argued, was imposing a heightened standard of reasonableness for parole searches; that standard now becomes the law in the Ninth Circuit but does not establish that the search was illegal under the law at the time, Brunetti said.
Motley was represented by Stephen Yagman, Kathryn S. Bloomfield, and Marion R.
Yagman, the LAPD defendants by Deputy City Attorney Janet G. Bogigian, the parole agent by Deputy Attorneys General Robert F. Helfand and Elizabeth A. Keech, and the ATF agent by Assistant U.S. Attorney David Pinchas.
The case is Motley v. Parks, 02-56648.
Copyright 2004, Metropolitan News Company