Suit over arrest that led to new case law set for trial

SANTA ANA — A lawsuit that has led to new case law regarding arrest warrants is set for trial May 1 in Orange County under a schedule agreed upon Thursday, the first action since a 9th U.S. Circuit Court of Appeals remand in September.

The appellate opinion was on the surface a partial victory for Michael J. Rossiter and the other Koeller, Nebeker, Carlson, & Haluck LLP attorneys representing the Orange County and six sheriff’s deputies. It reversed U.S. District Judge Andrew J. Guilford’s denial of qualified immunity on some claims, while affirming his granting of qualified immunity for other claims.

But the opinion also contains an underlying finding that plaintiffs’ attorney Jerry L. Steering said is a huge victory for people who are victimized by police.

While Guilford agreed with other courts that case law allowing police to detain occupants of a house while executing a search warrant also applies to arrest warrants, the appellate panel said it does not. That overrides other court opinions, including a 21-year-old appellate decision Steering said was bad case law: People v. Hannah, 51 Cal.App.4th 1335. (Cal. App. 2nd Dist. July 1, 1999).

“After 21 years of confusion in California by police officers, it is finally established that they may not detain others present at the scene of an arrest warrant execution,” Steering said.

Written by Senior Circuit Judge David M. Ebel, the opinion concludes the longstanding rule addressed in Hannah and put forth in Michigan v. Summers, 452 U.S. 692 (1981), “hinged critically on the distinct nature of a search warrant” because search warrants and arrest warrants protect different Fourth Amendment interests. However, Ebel said the longstanding “legal ambiguity” regarding Summers is reason to give the deputies immunity. Sharp v. County of Orange, 15-56146 (9th Cir. Sept. 19, 2017).

“Our case law on that question, as well as rulings from several other federal circuit courts, could lead reasonable persons to different conclusions,” Ebel wrote.

Steering said he chose not to request a rehearing before the panel over the Fourth Amendment dispute because he likes the case law regarding Summers, and the panel affirmed Guilford’s denial of immunity case on state claims that are essentially equivalent to the federal ones where immunity was granted.

It’s one of several recent victories for the longtime civil rights lawyer, including a published opinion Nov. 1 that reverses a summary judgment by U.S. District Judge James V. Selna regarding a Fourth Amendment excessive force claim against a deputy who shot a man nine times, then shot him nine more times and stomped him in the head after he was on the ground. Zion v. County of Orange, 15-56705 (9th Cir. Nov. 1, 2017).

The lawsuit that led to the opinion addressed in court Thursday stems from the mistaken arrest of an Orange County man, Merritt L. Sharp, whose son was wanted by police for violating probation. The claims include unlawful seizure, excessive force, unlawful search and false arrest under the Fourth Amendment, as well as retaliation for speech under the First Amendment.

That claim stems from the allegation that deputies kept Sharp detained for being argumentative after they realized their mistake.

It’s the second such lawsuit Steering has filed on behalf of Sharp: Police in Garden Grove mistakingly arrested him nearly 20 years ago, also while searching for his son. An Orange County Superior Court jury awarded him $1 million after a trial in 2000, which Judge Derek W. Hunt reduced to $50,000. Sharp v. City of Garden Grove et al., 795705 (O.C. Super Ct., filed June 17, 1998).

William L. Haluck, a partner with Koeller, Nebeker, Carlson, & Haluck LLP declined comment Thursday, citing the ongoing litigation. His firm appealed after a partial summary judgment order from Guilford in July 2015. Rossiter argued before the appellate panel in Pasadena in March.

Brenton Whitney Aitken Hands, an associate at Steering’s office in Newport Beach, argued for the plaintiff.

While Judge Milan D. Smith, Jr., concurred with Ebel, the opinion was split 2-1 because Judge N. Randy Smith disagreed with their decision to grant immunity on the Fourth Amendment claims.

Randy Smith wants the claims to proceed to trial just as judges allowed the claim of First Amendment retaliation. He said his colleagues didn’t view the evidence in the light most favorable to Sharp and wrongly analyzed the case as one of mistaken identity when it’s about probable cause.

He pointed to a statement one of the deputies allegedly made to Sharp: “If you weren’t being so argumentative, I’d probably just put you on the curb,” and said while his colleagues used it to conclude deputies violated Sharp’s First Amendment rights, they ignored it when analyzing the Fourth Amendment claims.

It’s unclear if the case will proceed to trial. Steering said they are working with Judicate West mediator Troy D. Roe.