|Benjamin Franklin Butler drafted the
Enforcement Act of 1871. Photo
courtesy of wikisource.
Two cases came down that are are very similar. In each case an off duty police officer attacked someone who later sued for a violation 42 U.S.C. Section 1983. In each case, the defendant moved for summary judgment stating that there was insufficient evidence that the off duty police officer was acting under color of state law under Van Ort v. Estate of Stanewich. In Van Ort, a police officer executed a search watrrant on a house, returned a month later, robbed the place and tortured the inhabitants. The District Court concluded (and Ninth Circuit affirmed) that since Officer Stanewich did not invoke his authority as a police officer and did not torture the Van Orts within the scope of his employment he was not acting under color of state law.
In Hechavarria v. City and County of San Francisco, Rogelio Hechavarria had an altercation with Elias Georgopoulos, a San Francisco Parking Control Officer (PCO) due to Mr. Hechavarria’s involvement with Mr. Georgopoulos’ wife, another PCO. Mr. Georgopoulos pepper sprayed Mr. Hechavarria who then sued for a violation of 42 U.S.C. Section 1983. San Francisco charectorized this as a personal dispute between the men with no "color of state law implicated." Judge Charles Breyer agreed stating that although Mr. Georgopoulos used his PCO issued pepper spray that was not enough to invoke his authority under color of state law.
Jackalone v. City of Fremont is a closer case. Here, a heavily intoxicated off duty police officer believed a bystander on a BART bus assaulted one of his friends and began a fistfight with him after exiting the bus. The bystander's friends broke up the fight and everyone walked away to get on a BART train. The police officer pursued them, flashed his badge to skip the line for tickets and get on the train for free, upon seeing Mr. Jackalone on the platform he engaged another fistfight with him. The color of state law argument was that but for the officer getting preferential treatment to get through the train station the fight would not of occurred. Judge Marilyn Hall Patel said that was insufficient. In order to be acting under color of state law the invocation of authority had to be the act that caused the injury not the one leading up to it. Since the acts were too remote to be connected she granted judgment for the defendants on the 42 U.S.C. Section 1983 claims.
In Faris v. Brown a pro se prisoner sued various state officials for not being provided with an opportunity to be exonerated by DNA testing of evidence found at the scene of various sex crimes for which he is serving 75 years in prison. He argued that this is a violation of Due Process actionable under 42 U.S.C. Section 1983 notwithstanding that District Attorney's Office v. Osborne (U.S. 2009) found that there was no Due Process right to post-conviction DNA testing. Attorney General Jerry Brown responded that California law provides procedures for prisoners to obtain testing of evidence, the plaintiff here chose not avail himself of them and instead made a blanket request for evidence testing. Judge William Alsup agreed with the Attorney General and stated that the law provided adequate protections which were not offended in this case.
Hopkins v. Bonvicino is back on remand from the Ninth Circuit which found that many of the defendants were not entitled to qualified immunity. The Ninth Circuit's recitation of the facts of the case is worth quoting at length:
On August 22, 2003, two San Carlos Police Officers broke into Bruce Hopkins' home. They did not have a warrant, nor did they have probable cause. All that they had was a statement from a third-party that Hopkins had been involved in an extremely minor traffic incident, an incident so minor that it did not cause as much as a scratch on either of the vehicles involved, and that he appeared to have been drinking. Based on this information, the officers broke into Hopkins' home with their flashlights shining and their guns drawn. When they found Hopkins, they handcuffed him, removed him from his house, and placed him under arrest.Mr. Hopkins moved for summary judgment stating that, after the Ninth Circuit's treatment of the officers' case, there was no genuine issue that his civil rights were violated. Judge Jeffery S. White noted that the facts do not show any justification for the entry into Mr. Hopkins house and granted him summary judgment on his Fourth Amendment claim for unwarranted search and seizure. However, the Judge noted that Mr. Hopkin's house was dark and that there may have been reasons why officers pulled their guns on him making his Eighth Amendment claim inadequate for summary judgment.
The officers' explanation for their warrantless entry is both simple and audacious: They claim that, after hearing that Hopkins had the smell of alcohol on his breath, they feared he was on the brink of a diabetic coma and broke into his house in order to offer medical assistance. According to one officer's deposition testimony, they entered with their guns drawn because individuals suffering from diabetic emergencies "may sometimes be confused" and can be "combative." Apparently, in the officer's view, someone suffering from such a medical emergency may need to be deterred by deadly force. Hopkins, however, was neither confused nor combative because he was not suffering from a diabetic emergency — he was lying in his bedroom watching television, which is where the officers found him. Yet, after the officers discovered that he was perfectly healthy and non-comatose, they did not say "we're glad to see that you are safe, sir; we'll be on our way now." They did not say, "Sorry for the disturbance and for damaging your property." No, instead they handcuffed Hopkins at gunpoint, removed him from his home, placed him under arrest, and brought him to the San Mateo County jail for the final chapter in the case of the nonexistent diabetes.