Justice Bound

Republicans have used their control of the U.S. Senate to defeat, curb and delay President Bill Clinton's judicial appointments on the ground that his nominees are judicial activists.

However, judicial activism has been the hallmark of Republican appointees who, using dishonest, irrelevant and inaccurate analysis, have been undermining and dismantling civil-rights laws and suits. Activist judges have seriously undermined civil-rights protections in the area of police misconduct by:

* Exempting California sheriffs from civil rights laws. Notwithstanding that California sheriffs have long been treated by state courts as county officials (see Sullivan v. County of Los Angeles, 12 Cal.3d 722 (1974)), a recent Court of Appeal opinion has misconstrued and misapplied a U.S. Supreme Court decision (McMillan v. Monroe County, 520 U.S. 781 (1997)) to reverse a half century or more of precedent by holding sheriffs to be state officials, rather than local policy-makers. County of Los Angeles v. Superior Court (Peters), 68 Cal.App.4th 1166 (1999).

Consequently, California sheriffs, and especially their unlawful jail policies, are not amenable to suits brought under Section 1983 of the federal Civil Rights Act by virtue of the 11th Amendment.

* Rejecting the "reasonableness" standard for use of force. In two wrongful-death cases brought by parents of police shooting victims, Byrd v. Guess, 137 F.3d 1126 (9th Cir. 1998), and Moreland v. Las Vegas Metro. Police Dep't, 159 F.3d. 365 (9th Cir. 1998), the 9th Circuit has refused to apply the Fourth Amendment's reasonableness standard to police use of force as prescribed by the U.S. Supreme Court in Tennessee v. Garner, 471 U.S. 1 (1985), and Graham v. Conner, 490 U.S. 386 (1989).

The 9th Circuit, asserting that rights under the Fourth Amendment can be asserted only by the victim, noted that the parents of the decedent derive their rights to sue under the Due Process Clause of the 14th Amendment. As a result, the 9th Circuit panel in Byrd applied the "deliberate indifference" standard. In Moreland, another 9th Circuit panel held that "shock the conscience" was the appropriate standard to be used.

Either of these standards lead to absurd results. The Byrd court would impose liability on the shooting officer only if the plaintiff could prove that he knew that the victim had a family and intended to disrupt the relationship whereas, under Moreland, the shooting officer is not liable even if he acts unreasonably, unless a jury finds that the shooting is shocking to the conscience.

* Misusing qualified immunity to protect law enforcement. The concept of qualified immunity as applied to law-enforcement officers evolves from Pierson v. Ray, 386 U.S. 547 (1967), in which the Supreme Court held that a sheriff who arrested ministers for violating an unconstitutional segregation law would be entitled to qualified immunity if he could show that he believed in good faith that the law was constitutional.

Then the court in Harlow v. Fitzgerald, 457 U.S. 800 (1982), to divert attention from the groundwork it was laying for the arbitrary and destructive application of qualified immunity in Fourth Amendment cases, held that an officer's claim of good faith was to be tested by objective, not subjective, standards.

Along came Anderson v. Creighton, 483 U.S. 635 (1987), in which Justice Antonin Scalia, writing for a majority of six justices, extended qualified immunity to FBI agents who made a warrantless entry into a private home to search for a bank robber who was not there. Standing Harlow and logic on its head, the opinion holds that, if the officers' actions are reasonable but mistaken, there is no liability.

Scalia's rationale means that an officer who acted without probable cause - and hence unreasonably - may yet be acting reasonably. Scalia explains, "We have recognized that it is inevitable that law enforcement officials will in some cases reasonably but mistakenly conclude that probable cause is present, and we have indicated that in such cases those officials - like other officials who act in ways they reasonably believe to be lawful - should not be held personally liable."

The opinion exemplifies doublespeak and hypocrisy when it attempts to justify why qualified immunity can apply to an unreasonable entry and search: "The fact is, regardless of terminology used, the precise content of most of the Constitution's civil liberties guarantees rest upon an assessment of what accommodation between governmental need and individual freedom is needed."

That "assessment" was made by our Founding Fathers when they used the term "unreasonable" in the Fourth Amendment to define the limit of governmental intrusion into privacy. For six justices to amend the Fourth Amendment without the process prescribed by the Constitution is the epitome of judicial activism.

Predictably, Creighton has led inevitably to decisions terminating civil-rights actions by applying qualified immunity through the medium of summary judgment procedure. In Scott v. Henrich, 39 F.3d 912 (9th Cir. 1994), cert. denied, 515 U.S. 1159 (1995). the 9th Circuit, while acknowledging that reasonableness "traditionally is a question of fact for the jury," holds that an officer may nonetheless win on summary judgment "if the District Court concludes after resolving all factual disputes in favor of plaintiff, that the officer's use of force was objectively reasonable under the circumstances."

But the short answer is that objective reasonableness is still a fact question, which the Seventh Amendment guarantees may be tried to a jury, rather than by a former police officer or prosecutor.

To further understand the significance of Henrich, one need only read Reynolds v. City of San Diego, 84 F.3d. 1162 (1986), where a court majority affirmed summary judgment in a wrongful-shooting case, holding that material discrepancies in the shooting officer's testimony were not enough to raise a triable issue of fact.

* Restricting free speech. Roulett v. City of Seattle, 78 F.3d. 1425 (9th Cir., 1966), 97 F.3d. 300 (opinion of Norris, J., unsuccessfully urging circuit to hear case en banc), involved a municipal ordinance that prohibited sitting/laying on a sidewalk in a commercial area between 7 a.m. and 9 p.m.

The 9th Circuit rejected a facial challenge to the ordinance on the ground that the challenged law was not directed knowingly and specifically at expression or conduct commonly associated with expression - although, as Judge William A. Norris points out, sitting and lying on a sidewalk is often utilized as a form of protest.

The test adopted by the Roulette majority derogated and conflicted with the test promulgated by the U.S. Supreme Court in Arcara v. Cloud Books, 478 U.S. 697 (1986). There, the Supreme Court held a facial challenge permissible where the challenged statute contains a significant expressive element.

* Disallowing a cause of action for employing dangerous officers. In Van Ort v. State of Stanewich, 92 F.3d. 831 (9th Cir. 1996), the 9th Circuit deliberately distorted and misquoted a California Supreme Court decision - Grudt v. City of Los Angeles, 2 Cal.3d. 575 (1970) - to support its thesis that no California case recognized negligent retention as a cause of action, when in fact the California Supreme Court in Grudt permitted that particular cause of action.

Citing Virginia G. v. ABC Unified Sch. Dist., 14 Cal.App.4th 1848 (1993), as "the case most helpful to the Van Orts," the court dismisses it as not controlling because "the Court there limited its ruling to public schools and did not announce a general cause of action against all public entities for direct liability for their employees' misdeeds." Actually, the Virginia G. court did not expressly or impliedly limit its ruling to schools.

In any event, back in 1973, the California Court of Appeal in City of Los Angeles v. Superior Court, 33 Cal.App.3d 778 (1973), held that a municipality may "incur liability for willfully continuing to employ an individual of known violent propensities ... and ... for a negligent failure to adequately supervise its employees." That proposition has never been overruled and remains the law in California.

* Requiring "foreseeability" of drunk officer's deadly conduct. Huffman v. County of Los Angeles, 147 F.3d. 1054 (9th Cir. 1995), is yet another example of corrupt judicial treatment of an important public issue. The plaintiff's son was killed by an off-duty deputy sheriff who was allegedly under the influence of alcohol at the time. A jury returned a substantial verdict against the county.

The 9th Circuit held that the county could not be held liable because the deputy's conduct was not foreseeable. Thus, under Huffman, the plaintiff would have to prove that the victim and circumstances of his death were predictable in order to hold the employing entity liable for allowing its employees to use firearms while drunk.

The foregoing are only a small example of what is happening to our civil rights and liberties while in the hands of right-wing judicial zealots. Before losing them altogether through malicious judicial improbity, you may just want to take a more active interest in the corrective legislative process.