Civil Case Updates for Criminal Practitioners Archive (March 2020)

Gang evidence “almost always prejudicial.”

Gilmore v. Lockard,
936 F.3d 857, 859 (9th Cir. 2019)

In Gilmore v. Lockard, 936 F.3d 857, 859 (9th Cir. 2019), the Ninth Circuit reversed a defense verdict in favor of prison officials who, a prisoner alleged, used excessive force against him and then delayed his access to medical care. Though the case was reversed on procedural grounds, the Ninth gave one of those “don’t-fuck-up-the-retrial-too” rulings, although it described it more circumspectly as “for the guidance of the trial court on remand.” Id. (citing United States v. Mayans, 17 F.3d 1174, 1184 (9th Cir. 1994)). This guidance was on the admissibility of gang evidence at trial. “Given that ‘evidence relating to gang involvement will almost always be prejudicial,’” the Court held, “the minimal probative value of [that] testimony is easily outweighed by the tremendous risk of unfair prejudice . . . and so it should be excluded if the case is retried.” Id. (citing Kennedy v. Lockyer, 379 F.3d 1041, 1055 (9th Cir. 2004)) (emphasis provided). While this authority won’t help us in those RICO / VICAR / gang-enhancement cases where gang ties are basically an element of the offense, this case law is pretty strong medicine for those cases where gang membership is a more tangential issue. Fed. R. Evid. 403 still seems to have teeth when it comes to gang evidence, in both civil and criminal cases.

Police protecting their own and the “state-created danger” doctrine.

Martinez v. City of Clovis,
943 F.3d 1260, 1271 (9th Cir. 2019)

This is purely a tort case, though it may be of interest because it holds that when the police endanger a domestic-violence victim by trying to protect one of their own, they can be liable under Section 1983 for civil damages.

In Martinez v. City of Clovis, 943 F.3d 1260, 1271 (9th Cir. 2019), a Clovis police officer repeatedly subjected his girlfriend to domestic violence. His fellow Clovis officers did little to stop the abuse. In fact, taking the plaintiff’s facts at face value, they “praise[d] [the] abuser in the abuser’s presence after the abuser ha[d] been protected from arrest, in a manner that [arguably] communicate[d] to the abuser that the abuser may continue abusing the victim with impunity.” Id.at 1276-77. Predictably, the officer continued the abuse.

The Ninth Circuit held that these facts state a constitutional claim against the City, which is notable because generally, government entities are not liable for their omissions in failing to stop crime from occurring. “The general rule is that a state is not liable for its omissions” and the Due Process Clause does not “impose a duty on the state to protect individuals from third parties.” Patel v. Kent Sch. Dist., 648 F.3d 965, 971 (9th Cir. 2011). But Martinez reaffirmed that “the state may be constitutionally required to protect a plaintiff that it ‘affirmatively places . . . in danger by acting with ‘deliberate indifference’ to a ‘known or obvious danger.'” The elements for a state-created danger tort are: 1) the officers’ affirmative actions created or exposed her to an actual, particularized danger that she would not otherwise have faced; 2) the injury she suffered was foreseeable; and 3) the officers were deliberately indifferent to the known danger. Martinez, 943 F.3d at 1271. See also Hernandez v. City of San Jose, 897 F.3d 1125, 1133 (9th Cir. 2018).

The Court concluded that “[w]e hold today that the state-created danger doctrine applies when an officer reveals a domestic violence complaint made in confidence to an abuser while simultaneously making disparaging comments about the victim in a manner that reasonably emboldens the abuser to continue abusing the victim with impunity. Similarly, we hold that the state-created danger doctrine applies when an officer praises an abuser in the abuser’s presence after the abuser has been protected from arrest, in a manner that communicates to the abuser that the abuser may continue abusing the victim with impunity. Going forward, the law in this circuit will be clearly established that such conduct is unconstitutional.” Martinez v. . City of Clovis, 943 F.3d 1260, 1276-77 (9th Cir. 2019).