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Suit Alleging LAPD Officers Manipulated Victim Reinstated
Ninth Circuit Says Complaint Plausibly Alleges Statement to Bloodied Woman That She Would Be Jailed if Her Attacker Chose to Press Charges, Operating as Chill to Her First Amendment Right to Address Grievances
By a MetNews Staff Writer
A civil complaint alleging that officers with the Los Angeles Police Department manipulated a bloodied victim of attempted rape and physical assault into not pressing charges against her attacker by saying that “he’s claiming that you were the aggressor…[s]o if he wants to press charges, you will be going to jail too” plausibly stated a First Amendment violation, the Ninth U.S. Circuit Court of Appeals held yesterday.
The complaint, filed under 42 U.S.C. §1983, asserts that the officer’s statements operated to chill the victim’s constitutional right to press charges against the perpetrator of the attack. According to the pleading, the alleged perpetrator displayed a “tiny scratch under his chin” while the victim suffered lacerations to her scalp and forehead, bite marks on both shoulders, and bruises to her face and body.
Appealing a dismissal of her complaint was Joy Ho Scherer, who filed legal action against the city and Los Angeles Police Officers Wessam Ismail and Nelson Martinez Jr. relating to an incident on Oct. 31, 2020 at the apartment belonging to Maxwell Bravo, her former boyfriend.
Dragging Plaintiff
She alleges that police were called to the location by a witness who yelled at Bravo to stop after witnessing him dragging Scherer—who was screaming and partially naked—upstairs to his second-floor apartment.
When the officers arrived at the building, Ismail questioned Bravo, who purportedly said that Scherer threw the “first blows.” Martinez interviewed the plaintiff, who said that Bravo had beaten and attempted to rape her.
After Martinez confirmed with Bravo that he did not want to press charges, the officer approached Scherer and said:
“Just like you, he has injuries too, and he’s claiming that you were the aggressor, and that you started the fight, and that just like I told you that you have the right to do a private person’s arrest, that he has that right too. So if he wants to press charges, you will be going to jail too.”
Convinced that the officer was threatening her with jail time if she pressed charges, Scherer declined to make a private citizen’s arrest.
District Court View
The defendants moved to dismiss the complaint for failure to state a claim under Federal Rule of Civil Procedure 12(b)(6). On May 10, 2023, Senior District Court Judge James V. Selna granted the motion.
Selna acknowledged that “[t]he First Amendment of the United States Constitution guarantees a ‘right of the people…to petition the Government for a redress of grievances’” but said:
“[A] plaintiff must show that a person of ‘ordinary firmness’ would be deterred—or ‘chilled’—from further engaging in the protected activity….This is an objective inquiry….
“Scherer cannot plausibly establish that Officer Martinez’s actions would objectively chill a person of ordinary firmness from asking law enforcement to ‘press charges.’ Officer Martinez told Scherer that if Bravo chose to press charges, she would also be arrested….He did not tell her that if she chose to press charges, she would be arrested. While Scherer might have believed these statements to be interchangeable, they are not.”
He continued:
“The Court agrees that Officer Martinez probably did not have any objective basis to tell Scherer that there was a possibility that charges would be brought against her; he already knew that Bravo did not want to press charges. But the officer’s subjective intent is not the relevant inquiry….He conveyed that if Bravo chose to go forward with pressing charges against her, she would face the same consequences. This was neither an explicit nor implicit threat. Whether Officer Martinez utterly failed to discourage a dual arrest as provided under California law or whether he was being intentionally disingenuous, it is not plausible under the objective standard that the ‘average person’ would be deterred from seeking assistance from police by his statement.”
The judge added:
“Whether or not Scherer’s right to petition was triggered in this instance, her claim fails because she cannot establish that Officer Martinez’s actions had a ‘chilling effect.’….[L]eave to amend may be denied where amendment ‘would be an exercise in futility, or where the amended complaint would also be subject to dismissal.’….This is such a case. Because Scherer’s claim fails as a matter of law, the Court finds that leave to amend would be futile.”
Ninth Circuit Opinion
The Ninth Circuit reversed in a memorandum opinion, filed yesterday and signed by Circuit Judges Sandra S. Ikuta, Daniel Aaron Bress, and Chief District Court Judge Stanley A. Bastian of the Eastern District of Washington, sitting by designation.
The panel said:
“The district court erred in dismissing Scherer’s 42 U.S.C. § 1983 claim for First Amendment retaliation. Taking the facts in the light most favorable to Scherer, Officer Martinez’s statement to Scherer that her attacker, Max Bravo, had the right to press charges; that if Bravo pressed charges ‘you’re going to go [to jail]’ right now; and ‘[t]hat’s how private persons arrest works’ would have chilled a person of ordinary firmness from exercising the First Amendment right to press charges.”
The judges continued:
“Contrary to the district court’s conclusion, Scherer has plausibly alleged that Martinez’s statement that Scherer would go to jail too was a threat, not a statement of law, given that Bravo had already told Officer Martinez that he did not want to press charges, and that California law requires officers to discourage the dominant aggressor (in this case, Bravo) from pressing charges, even if he had expressed a wish to do so.”
Determining that other issues remained outstanding in the case, the judges said:
“Because the district court dismissed the claim based on the lack of any constitutional violation, it did not address qualified immunity. On remand, the district court may address, in the first instance, whether the officers are entitled to qualified immunity because Scherer failed to allege a violation of a ‘clearly established’ constitutional right.”
The case is Scherer v. City of Los Angeles, 23-55603.
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