Tags

, , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , ,

(For Austin)

THE POLICE POWERS ARE SUBJECT TO QUALIFIED IMMUNITY

Clearly established. QUALIFIED IMMUNITY

Davis v. Scherer, No. 03-3259 (6th Cir. 07/22/2005) (In a civil rights action pursuant to 42 U.S.C. section 1983, the grant of summary judgment to defendant-police officers is reversed where their seizure of plaintiff’s person and entry into his home were unsupported by a warrant, consent or exigent circumstances.);Cf. Harlow v. Fitzgerald,
 457 U.S. 800. Pp. 190-197 (1982); See also: Williams v. Taylor,
 529 U.S. 362, 404 (2000); Early v. Packer, 537 U.S. 3, 8 (2002); 28 U.S.C. § 2254(d); Cf. Existence or nonexistence; Mandatory v. Discretional; Most favorable; Qualified immunity;

Cummings v. City of Akron,  No. 03-3259 (6th Cir. 07/22/2005) (In a civil rights action pursuant to 42 U.S.C. section 1983, the grant of summary judgment to defendant-police officers is reversed where their seizure of plaintiff’s person and entry into his home were unsupported by a warrant, consent or exigent circumstances.);

Taylor v. Maddox, No. 02-55560 (9th Cir. 05/10/2004) (Principles of comity and federalism counsel against substituting our judgment for that of the state courts, a deference that is embodied in the requirements of the federal habeas statute, as amended by AEDPA. When it comes to state-court factual findings, AEDPA has two separate provisions. First, section 2254(d)(2) authorizes federal courts to grant habeas relief in cases where the state-court decision “was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.” Or, to put it conversely, a federal court may not second-guess a state court’s fact-finding process unless, after review of the state-court record, it determines that the state court was not merely wrong, but actually unreasonable. Cf. Lockyer v. Andrade,  538 U.S. 63, 75 (2003) (“The ‘unreasonable application’ clause requires the state court decision to be more than incorrect or erroneous. The state court’s application of clearly established law must be objectively unreasonable.”); see also Torres v. Prunty, 223 F.3d 1103, 1107-08 (9th Cir. 2000) (same standard of unreasonableness applies under subsections (d)(1) and (d)(2)). Second, section 2254(e)(1) provides that “a determination of a factual issue made by a State court shall be presumed to be correct,” and that this presumption of correctness may be rebutted only by “clear and convincing evidence.”);

Lee v. Gregory,No. 02-57132 (9th Cir. 04/07/2004) (Qualified immunity protects “all but the plainly incompetent or those who knowingly violate the law.” Malley v. Briggs, 475 U.S. 335, 341 (1986). The qualified immunity inquiry involves two sequential questions. First: “[t]aken in the light most favorable to the party asserting the injury, do the facts alleged show the officer’s conduct violated a constitutional right?” Saucier v. Katz, 533 U.S. 194, 201 (2001). Second: “if a violation could be made out on a favorable view of the parties’ submissions, the next, sequential step, is to ask whether the right was clearly established . . . in light of the specific context of the case.” Id.);

Ceballos v. Garcetti,No. 02-55418 (9th Cir. 03/22/2004) (For purposes of summary judgment, qualified immunity was not available to the individual defendants because the law was clearly established that plaintiff’s speech, alleging wrongdoing by a deputy sheriff, addressed a matter of public concern and that his interest in the speech outweighed his employer’s interest in avoiding inefficiency and disruption.);

 Sanders v. Lamarque,No. 02-56893 (9th Cir. 02/03/2004) (Under § 2254(d)(1)’s “unreasonable application” clause, then, a federal habeas court may not issue the writ simply because that court concludes in its independent judgment that the relevant state-court decision applied clearly established federal law erroneously or incorrectly.’ Rather, that application must be objectively unreasonable.” Lockyer v. Andrade, ___ U.S. ___, 123 S. Ct. 1166, 1175 (2003) (quoting Williams v. Taylor, 529 U.S. 362, 411 (2000)).

Beier v. City of Lewiston,No. 02-35516 (9th Cir. 01/14/2004) (” ‘[C]learly established’ for purposes of qualified immunity means that ‘[t]he contours of the right must be sufficiently clear that a reasonable official would understand that what he is doing violates that right.’ ” Wilson v. Layne, 526 U.S. 603, 614-15 (1999) (quoting Anderson v. Creighton,  483 U.S. 635, 640 (1987)). “This is not to say that an official action is protected by qualified immunity unless the very action in question has previously been held unlawful, but it is to say that in the light of pre-existing law the unlawfulness must be apparent.” Hope v. Pelzer,  536 U.S. 730, 739 (2002) (quoting Anderson, 483 U.S. at 640) (internal quotation marks and citations omitted). The “salient question” is whether the state of the law in June of 1997 gave the officers fair warning that their actions were unconstitutional. See Hope, 536 U.S. at 741; see also Devereaux v. Abbey,  263 F.3d 1070, 1075 (9th Cir. 2001) (en banc) (“[W]hat is required is that government officials have ‘fair and clear warning’ that their conduct is unlawful.”) (citation omitted).);

Riley v. Payne,No. 03-35054 (9th Cir. 12/23/2003) (Riley’s petition is governed by the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”). AEDPA’s constrained review permits a federal court to grant habeas relief affecting a state prisoner only when a state court’s ruling: (1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or (2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding. 28 U.S.C. § 2254(d). A state court’s decision is “contrary to” federal law if it: (1) “applies a rule that contradicts the governing law” set forth in Supreme Court case authority, or (2) applies controlling law to a set of facts that is “materially indistinguishable” from a Supreme Court decision but nevertheless reaches a different result. Lockyer v. Andrade, 123 S.Ct. 1166, 1173 (2003). A state court’s decision is an “unreasonable application” of federal law only if it is “objectively unreasonable,” which “requires the state court decision to be more than incorrect or erroneous.” Id. at 1174.);


 
Shaw v. Terhune, No. 02-16829 (9th Cir. 12/22/2003) (Shaw’s petition for habeas corpus is governed by the standards set forth in the Antiterrorism and Effective Death Penalty Act (“AEDPA”), 28 U.S.C. § 2254(d). Under AEDPA, we may only grant Shaw’s petition if the state court’s rejection of his due process claim was (1) “contrary to, or involved an unreasonable application of, clearly established federal law, as determined by the United States Supreme Court;” or (2) an unreasonable interpretation of the facts in light of the evidence presented in the state court proceeding. 28 U.S.C. § 2254(d)(1);
Van Tran v. Lindsay,  212 F.3d 1143, 1154 (9th Cir. 2000), overruled on other grounds by Lockyer v. Andrade,  538 U.S. 63 (2003) (“[W]e may not, of course, reverse a state court’s decision simply because it is inconsistent with a rule established by a Ninth Circuit case.”). The phrase “clearly established federal law” refers to “the holdings, as opposed to the dicta, of [the Supreme] Court’s decisions as of the time of the relevant state court decision.” Williams v. Taylor, 529 U.S. 362, 412 (2000);

Van Lynn v. Farmon, No. 03-15221 (9th Cir. 10/17/2003) (We review de novo the district court’s decision to grant or deny a petition for writ of habeas corpus. Clark v. Murphy, 331 F.3d 1062, 1067 (9th Cir. 2003), petition for cert. filed, ___ U.S.L.W. ___ (U.S. Sept. 8, 2003) (No. 03-372). Pursuant to 28 U.S.C. § 2254(d), we review the state court’s decision to determine whether the state court’s adjudication of the claim “resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established” Supreme Court case law or “resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.” Here, there is no contention that the state-court decision resulted in an unreasonable determination of the facts. Thus, we consider whether the state-court decision resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Supreme Court case law. “Contrary to” and “unreasonable application of” have “distinct meanings” as used in § 2254(d)(1). Clark, 331 F.3d at 1067; see also Williams v. Taylor, 529 U.S. 362, 404 (2000). A decision is “contrary to” clearly established Supreme Court case law “if it fails to apply the correct controlling authority, or if it applies the controlling authority to a case involving facts materially indistinguishable from those in a controlling case, but nonetheless reaches a different result.” Clark, 331 F.3d at 1067. A state-court decision is also “contrary to” Supreme Court case law if the state court ” ‘applies a rule that contradicts the governing law set forth in’ ” Supreme Court cases. Early v. Packer,  537 U.S. 3, 8 (2002) (per curiam) (quoting Williams, 529 U.S. at 405). In contrast, “[a] state court’s decision involves an unreasonable application of federal law if ‘the state court identifies the correct governing legal principle . . . but unreasonably applies that principle to the facts of the prisoner’s case.’ ” Clark, 331 F.3d at 1067 (quoting Williams, 529 U.S. at 413).

Powell v. Galaza, No. 01-15195 (9th Cir. 05/06/2003) (First, a state court decision is “contrary to our clearly established precedent if the state court applies a rule that contradicts the governing law set forth in our cases” or “if the state court confronts a set of facts that are materially indistinguishable from a decision of this Court and nevertheless arrives at a result different from our precedent.” Williams v. Taylor,  supra, at 405-406; see also Bell v. Cone, supra, at 694. Lockyer v. Andrade,  ___ U.S. ___, 123 S. Ct. 1166, 1173 (2003) (quoting Williams v. Taylor, 529 U.S. 362, 405-06 (2000));

U.S. v. Oakland Cannabis Buyers’ Cooperative, No. 00-151 (U.S.S.C. 05/14/2001) (As an initial matter, the Cooperative is correct that, when district courts are properly acting as courts of equity, they have discretion unless a statute clearly provides otherwise. For “several hundred years,” courts of equity have enjoyed “sound discretion” to consider the “necessities of the public interest” when fashioning injunctive relief. Hecht Co. v. Bowles, 321 U.S. 321, 329-330 (1944). See also id., at 329 (“The essence of equity jurisdiction has been the power of the Chancellor to do equity and to mould each decree to the necessities of the particular case. Flexibility rather than rigidity has distinguished it”); Weinberger v. Romera-Barcelo,  456 U.S. 305, 312 (1982) (“In exercising their sound discretion, courts of equity should pay particular regard for the public consequences in employing the extraordinary remedy of injunction”). Such discretion is displaced only by a “clear and valid legislative command.” Porter v. Warner Holding Co, 328 U.S. 395, 398 (1946). See also Romero-Barcelo, supra, at 313 (“Of course, Congress may intervene and guide or control the exercise of the courts’ discretion, but we do not lightly assume that Congress has intended to depart from established principles”).


Graham v. Connor,490 U.S. 386 (1989) (All claims that law enforcement officials have used excessive force – deadly or not – in the course of an arrest, investigatory stop, or other “seizure” of a free citizen are properly analyzed under the Fourth Amendment’s “objective reasonableness” standard, rather than under a substantive due process standard. Pp. 392-399. [490 U.S. 386, 387]);


Harlow v. Fitzgerald ,457 U.S. 800. Pp. 190-197 (1982) (Reliance on the objective reasonableness of an official’s conduct, as measured by reference to clearly established law, should avoid excessive disruption of government and permit the resolution of many insubstantial claims on summary judgment. On summary judgment, the judge appropriately may determine, not only the currently applicable law, but whether that law was clearly established at the time an action occurred. If the law at that time was not clearly established, an official could not reasonably be expected to anticipate subsequent legal developments, nor could he fairly be said to “know” that the law forbade conduct not previously identified as unlawful. Until this threshold immunity question is resolved, discovery should not be allowed. If the law was clearly established, the immunity defense ordinarily [457 U.S. 800, 819] should fail, since a reasonably competent public official should know the law governing his conduct. Nevertheless, if the official pleading the defense claims extraordinary circumstances and can prove that he neither knew nor should have known of the relevant legal standard, the defense should be sustained. But again, the defense would turn primarily on objective factors.);

Wilson v. Layne, 526 U.S. 603 (05/24/1999) aff’d. Saucier v. Katz,  533 U.S. 194, 121 S.Ct. 2151 (2001) (Petitioners’ Fourth Amendment right was not clearly established at the time of the search. “Clearly established” for qualified immunity purposes means that the contours of the right must be sufficiently clear that a reasonable official would understand that what he is doing violates that right. His very action need not previously have been held unlawful, but in the light of pre-existing law its unlawfulness must be apparent. E.g., Anderson v. Creighton, 483 U.S. 635, 640 (1987);


Henry v. County of Shasta, No. 95-16704, D.C. No. CV-93-02038-GEB (9th Cir. 03/02/1998) (A municipal defendant may only be held liable under S 1983 if the unlawful actions of its employees or agents were taken pursuant to that defendant’s policies or customs, Monell v. New York City Dept. of Social Services, 436 U.S. 658, 694 (1978), including a policy of being deliberately indifferent to the rights of its inhabitants, City of Canton v. Harris, 489 U.S. 378, 389 (1989).);


Baptiste v. J.C.Penney Co.,147 F.3d 1252, 1255 (10th Cir. 1998) (“Qualified immunity shields government officials performing discretionary functions from individual liability under 42 U.S.C. § 1983 unless their conduct violates `clearly established statutory or constitutional rights of which a reasonable person would have known.'” (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)); Cf. Smith v. Oklahoma Department of Human Services, No. 00-6046 (D.C. No. 99-CV-615) (W.D. Okla. 2000); Carey v. Nevada Gaming Control Board,  No. 00-16649 (9th Cir. 02/04/2002)


Gray v. Klauser, No. 00-35732 (9th Cir. 02/27/2002) (Under 28 U.S.C. § 2254(d)(1), a federal court may grant an application for a writ of habeas corpus for a claim adjudicated in a adjudication “resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States.” The Supreme Court has held that the clauses “contrary to” and “unreasonable application of” have independent meaning. Penry v. Johnson , 121 S.Ct. 1910, 1918 (2001); Williams v. Taylor, 529 U.S. 362, 404 (2000); see Packer v. Hill, 291 F.3d 569, 1101 (9th Cir. 2002). The “contrary to” clause applies, inter alia, when a state “applies a rule that contradicts the governing law set forth” in the Supreme Court’s cases; the “unreasonable application of” clause applies when a state identifies the correct legal standard but applies it unreasonably. Penry, 121 S.Ct. at 1918 (quoting Williams, 529 U.S. at 404). Because the Idaho state courts did not apply the pertinent constitutional rules established by the Supreme Court, discussed below, they applied an incorrect legal standard. Thus, the “contrary to” clause governs in this case, and the only questions remaining are (1) whether there was constitutional error; and (2) “whether the error had a substantial or injurious effect on the verdict.” Packer, 277 F.3d at 1102 (citing Brecht v. Abrahamson , 507 U.S. 619, 637(1993).

Harris v. Carter,  No. 02-3114 (6th Cir. 07/29/2003) (The parties do not dispute the reasonableness of the facts determined in the state court proceedings. Thus, to be entitled to relief under § 2254(d), this Court must find that the decision of the Ohio Court of Appeals was either contrary to, or an unreasonable application of, the Supreme Court’s clearly established precedents. Price v. Vincent,123 S.Ct. 1848, 1852-53 (2003). A state court decision is contrary to clearly established federal law “if the state court arrives at a conclusion opposite that reached by [the Supreme] Court on a question of law or if the state court decides a case differently than [the Supreme] Court has on a set of materially indistinguishable facts.” Williams v. Taylor,

Williams v. Taylor, 529 U.S. 362, 412-13 (2000). A state court decision is an unreasonable application of clearly established federal law “if the state court identifies the correct governing legal principle from [the Supreme] Court’s decisions but unreasonably applies that principle to the facts of the prisoner’s case.” Id. at 413. The Supreme Court has cautioned that a “federal habeas court may not issue the writ simply because that court concludes in its independent judgment that the relevant state-court decision applied clearly established law erroneously or incorrectly. Rather, that application must also be unreasonable.” Id. at 411.);


Robinson v. Solano County, No. 99-15225 (9th Cir. 02/04/2002) (A court required to rule upon the qualified immunity issue must consider, then, this threshold question: Taken in the light most favorable to the party asserting the injury, do the facts alleged show the officer’s conduct violated a constitutional right? . . . In the course of determining whether a constitutional right was violated on the premises alleged, a court might find it necessary to set forth principles which will become the basis for a holding that a right is clearly established. This is the process for the law’s elaboration from case to case, and it is one reason for our insisting upon turning to the existence or nonexistence of a constitutional right as the first inquiry. The law might be deprived of this explanation were a court simply to skip ahead to the question of whether the law clearly established that the officer’s conduct was unlawful in the circumstances of the case. Katz, 121 S.Ct. at 2156.);


Stevens v. Rose, No. 00-15840 (9th Cir. 08/02/2002) (This appeal relates solely to Hanson’s qualified immunity defense with respect to the alleged Fourth Amendment violation. Establishing qualified immunity requires that the official’s conduct be objectively reasonable “as measured by reference to clearly established law.” Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). The Supreme Court recently encapsulated this objective approach into a two-step test. The threshold question that the court must answer is whether the facts, taken in the light most favorable to the plaintiff, “show the officer’s conduct violated a constitutional right[.]” Saucier v. Katz,  533 U.S. 194, 201 (2001). If this initial question is answered affirmatively, the court must address whether “[t]he contours of the right [are] sufficiently clear that a reasonable official would understand that what he is doing violates that right.” Id. at 202 (quoting Anderson v. Creighton,  483 U.S. 635, 640 (1987));

Chein v. Shumsky, No. 01-56320 (9th Cir. 03/14/2003) (We have recently interpreted Bronston to preclude a perjury conviction if the allegedly perjurious answer is in response to a question that is “excessively vague or fundamentally ambiguous.” United States v. Culliton , 300 F.3d 1139, 1141 (9th Cir. 2002) (citations and internal quotation marks omitted); see Chia v. Cambra , 281 F.3d 1032, 1037 (9th Cir. 2002) (stating that Ninth Circuit case law may be persuasive authority for determining what Supreme Court precedent is clearly established). In contrast, “[i]f we determine that the questions were only arguably ambiguous or not ambiguous at all,” the perjury determination must be made by the jury. Culliton, 300 F.3d at 1141 (internal quotation marks omitted).);

Cf. ORCP 47(C); [Or Laws 1995, ch. 618, § 5]; Jones v. General Motors Corp., 325 Or 404, 420,939 P2d 608 (1997); Turnbow v. K.E. Enterprises, Inc., 155 Or App 59, 65, 962 P2d 764 (1998); McCulloch v. Price Waterhouse LLP, 157 Or App 237, 252, 971 P2d 414 (1998), rev den 328 Or 365 (1999); Kraemer v. Harding, Et alii, 329 Or 47, 985 P2d 788 (1999); Vandermay v. Paul D. Clayton, CC 92-2104; CA A91235; SC S44717 (Or. 06/11/1999); Richardson v. Guardian Life Ins. Co., 161 Or App 615, 984 P2d 917, rev den 329 Or 553 (1999); Glen Slate v. Saxon, Marquoit, Bertoni & Todd, 9609-06865; CA A99631 (Or. 03/08/2000); Nike v. Northwestern Pacific Indemnity Co., C96-0209CV; CA A97847 (Or. 03/22/2000); Swenson v. Legacy Health System, 169 Or App 546, 9 P3d 145 (2000); Kluge v. Oregon State Bar, 172 Or App 452, 19 P3d 938 (2001); Glenn K. Jackson, Inc. v. Roe, No 00-15614 (9th Cir. 12/11/2001); Moore v. California Inst. of Tech. Jet Propulsion Lab, No. 00-55958 (9th Cir. 01/04/2002); Little v. Windermere Relocation Inc.,  No. 99-35668 (9th Cir. 01/23/2002)

Advertisements