Sunday, October 12, 2008

Qualified Immunity in Gang Murder (Torres), 548 F.3d 1197 (9th Cir. 2008)

Probable Cause and Qualified Immunity: 9/22/2008 Torres v. City of Los Angeles, 540 F.3d 1031 (9th Cir. 2008); withdrawn Note: on Nov. 13, without any explanation, the court withdrew its previous decision (reported below) and wrote a decision sustantially the same; Torres v. City of Los Angeles, 548 F.3d 1197 (9th Cir. 2008). Gang killings are indisputably the most difficult cases to prosecute. Witness intimidation is rife and witnesses lack credibility or are offered immunity. A witness in Torres v. City of Los Angeles, the girlfriend of a man who killed two other gang members, identified Torres as a passenger in the car when the driver (subsequently arrested) fired the shots. Admittedly the identification of Torres was imperfect but the Ninth Circuit ignored the fact that her boyfriend shot two men during a car chase. A passenger riding in a moving car with a driver involved in a shooting cannot describe all the details. Police arrested Torres based on the witness's incomplete identification and with information he was a gang member who had flashed gang signals to the occupants of the other car. After reviewing the evidence, the panel found the officers lacked probable cause. The evidence of Torres' culpability is a close question but enough to at least arrest him. Not in the Ninth Circuit. And this panel denied the officers qualified immunity, despite the fact the trial judge ordered all officers dismissed from the case. Note: One of the cases cited by the Ninth Circuit panel to support their conclusion the officers lacked probable cause to arrest Torres was Devenpeck v. Alford, 543 U.S. 146 (2004)-a Ninth Circuit case reversed by the Supreme Court.

No comments:

Post a Comment