Thursday, March 13, 2008

Robinson v. Lehman, 128 S.Ct. 1219 (2008)

The 9th Circuit buried  Robinson v. Lehman in an unpublished opinion (Robinson v. Lehman, 228 Fed.Appx. 697), a Ninth Circuit panel reviewed a U.S. District Court ruling denying a motion for summary judgment filed by police officer defendant Robinson. Plaintiff [estate of Lehman] had alleged the officer unlawfully used lethal force against deceased, Joshua Lehman; 42 U.S.C.A.1983. The panel began its analysis with this quote from the Supreme Court in Tennessee v. Garner, 471 U.S. 1 (1985): The Fourth Amendment prohibits police from employing lethal force against a suspect who poses no immediate threat to the officer and no threat to others. From that quote the reader can predict the result of this case. As factually described below, the officer contended he was immune from civil liability despite causing the death of Lehman whom he had shot after culmination of a car chase. In denying the motion, the Ninth Circuit panel described deposition testimony to establish officer Robinson was not shielded from liability. The court selectively summarized unfavorable testimony elicited from other officers on the scene, but ignored qualifications in their answers to questions, and concluded no reason justified the use of deadly force. The court admitted police had pepper sprayed, tasered and partially subdued a recalcitrant Lehman who refused orders to exit his truck. According to one of the officers at the scene, negotiations were in progress. The court: [T]he officer. . . shot and killed Lehman as he sat in his car, with all the tires shot out, surrounded by at least ten armed police officers and numerous police vehicles. Not a word about Lehmans prior conduct warranting justification for police presence at the scene. The reader wonders why the tires were shot out, Lehman alone in a vehicle surrounded by ten armed police officers and numerous police vehicles. That a pepper sprayed and tasered Lehman was partially subdued, is not only hyperbole-if not a misstatement-what does that phrase mean when Lehman refused to exit his truck upon orders from police? How do you negotiate with the driver of a vehicle who refuses to exit his vehicle? How do you know if he is armed? In contrast, here is a truncated summary of other police testimony, completely ignored by the panel, as paraphrased by the State of Nevada in its appeal of the Ninth Circuit decision to the Supreme Court: Earlier that day, sheriffs deputies on patrol had encountered Lehman. Without recounting the details, Lehman repeatedly rammed their vehicle, disabling it, and fled in his pick-up truck. One deputy fired shots into all four tires but Lehman escaped. During a car chase by other officers, Lehman continued to drive his vehicle on deflated tires. Officers unsuccessfully attempted to intercept his vehicle by initiating a spin maneuver with their patrol car, but Lehman never stopped until forced into oncoming traffic. Officers broke a window on Lehman's car and fired pepper spray and taser inside but he refused to exit the vehicle. Officer Robinson arrived at the scene in response to a radio call, saw Lehman briefly emerge from his vehicle, engage in several chopping motions with a knife directed toward other officers, and heard police issuing orders. Vehicular traffic was backed up for miles and drivers stopped their cars to observe the scene. Robinson mistakenly believed Lehman had fired shots at officers (originally, deputy Sheriffs had fired shots) but he knew enough to reasonably conclude Lehman was involved in the earlier event with sheriffs deputies. Despite the presence of several police vehicles, Robinson could see Lehman had an escape route along the highway in the direction toward officers standing in his path. Robinson saw Lehman look around as though assessing whether he could hit the officers. Although Robinson did not know their precise location from his vantage point, he believed additional officers had arrived and were concealed from his view behind Lehman's truck. Lehman accelerated his vehicle toward the officers, compelling one officer to jump aside to avoid being crushed. In an attempt to protect nearby officers from injury by the moving vehicle, Robinson fired at Lehman. Because of crossfire issues, Robinson believed he was the only person in a position to fire and that shooting Lehman was the only way to stop him. A videotape illustrated this version of the facts. This testimony, summarized by the State in its petition for review to the Supreme Court obviously differs significantly from the description of the events written by the Ninth Circuit panel. The Ninth Circuit decision concedes that police officers must make split second decisions in circumstances that are tense, uncertain and rapidly evolving. In the opinion of the panel, the Lehman confrontation apparently did not involve any of those conditions. In their view, the suspect pose[d] no immediate threat to the officer and no threat to others; Tennessee v. Garner. In its gratuitous concession to confer qualified immunity on police who do confront tense, uncertain and rapidly evolving circumstances, the panel cites another one of its cases refusing to permit the defense of qualified immunity when an officer shot the driver of a slow-moving car because . . . he [the officer] could avoid being injured by simply stepping aside; Acosta v. San Francisco, 83 F.3d 1143 (9th Cir. 1996). That naivete speaks for itself. Vehicles do accelerate. The obvious argument in the Robinson case is to let the jury decide the facts, but apparently the Supreme Court carefully read the States petition in deciding to review the Ninth Circuit decision and preliminarily agreed with the State of Nevada: Petition for hearing granted; Robinson v. Lehman, 2008 WL 423512; Ninth Circuit decision vacated and the panel ordered to reconsider its decision in light of the previous Supreme Court decision in Scott v. Harris, 127 S.Ct. 1769 (2007). In fairness to the Ninth Circuit, the panel wrote their unpublished opinion on April 16, 2007 and lacked the benefit of the Scott decision written by the Supreme Court on April 30, 2007. The Supreme Court decided Scott v. Harris after viewing the videotape of a horrific car chase. The Justices compared the testimony of the driver (who subsequently sued the police) with the tape. The Court held a trial court can grant a motion for summary judgment sustaining qualified immunity for officers despite disputed facts if one version is so inconceivable no jury could find against them. The scenario in Scott is strikingly comparable to Robinson v. Lehman. The Supreme Court ordered the Ninth Circuit panel to reconsider their decision. The Justices could have simply reversed the Ninth Circuit panel and granted the motion for summary judgment but exercised their discretion to allow reconsideration. The panel will likely reach the same conclusion as in their original decision. For a more sensible decision on the subject of qualified immunity, see, Bingue v. Prunchak, 512 F.3d 116 9 (9th Cir.2008). 3/13/2008

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