Gloria Franklin and Johnny Curry v. Derrick Foxworth

REINHARDT, Circuit Judge,

concurring:

Rather than simply remanding for further proceedings, I would prefer to decide two additional matters. I believe that we should make it clear that 1) the officers are not entitled to qualified immunity, and 2) the City of Portland (as well as the officers) is liable for the unlawful conduct. My colleagues prefer not to address those questions. I believe, however, that our failure to do so does a disservice to the parties — and particularly to Mr. Curry, the individual whose constitutional rights were so flagrantly violated.

The district court has already erred once in holding that the detention of Curry did not violate his Fourth Amendment rights, necessitating an appeal and a remand for further proceedings. By leaving certain legal questions unresolved, we make possible at least two additional appeals, one of which is wholly unnecessary. I refer, of course, to the appeal that would ensue should the district court find the officers entitled to qualified immunity and the City not liable for the officers’ unconstitutional conduct. Unlikely as it is that the district court would reach those clearly erroneous results, I would prefer not to take the risk. The consequences are too serious — for Mr. Curry and our system of justice. If the district court again errs with respect to liability, we would first have to reverse that decision and then order the district judge to make the necessary and long-delayed damage determination. There would then still remain the distinct possibility of another appeal from the damage ruling by either or both parties. By the time we decided that appeal, it might well be six to nine years from the time the police violated Curry’s rights.

There is no necessity at all for so absurd and protracted a process in this case. The questions of qualified immunity and the liability of the City are, at this stage of the proceedings, solely legal in nature. They can readily be resolved on the basis of the facts found by the district court and affirmed in our opinion. There is simply no reason to send Mr. Curry bouncing back and forth between the district court and this court, certainly not for the sake of allowing the district court to decide purely legal questions that we are equally capable of deciding and that it is our ultimate responsibility to resolve. Our half-decision in this case is reminiscent of the conduct and attitudes of the courts in Jarndyce v. Jarndyce. Charles Dickens, Bleak House (E. Johnson ed., 1965) (1853). See Coe v. Thurman, 922 F.2d 528 , 530 n. 2 (9th Cir.1990). We appear not to have learned much since the days of Dickens. Compensation for injuries, constitutional or otherwise, should be made available to an injured person while he is still alive, not after he can no longer possibly benefit from the award. Remanding the case of a sick elderly man to the district court for the determination of purely legal issues reflects an odd understanding indeed of the manner in which the judicial system should operate and the relationship between law and justice.

It is true, as my colleagues would point out, that generally we will not consider issues that have not been raised before the district court. Bolker v. C.I.R., 760 F.2d 1039, 1042 (9th Cir.1985). It is also true that because of the fundamental constitutional error it made the district court only decided the question of the legality of the officers’ conduct and failed to reach the other questions affecting liability. However, “when the issue is purely one of law and either does not depend on the factual record developed below or the pertinent record has been fully developed,” we *879 recognize an exception to the rule which serves to incapacitate my colleagues here. Id, In such instances, we have discretion to resolve the issue notwithstanding the district court’s failure to decide it below. See also Quinn v. Robinson, 783 F.2d 776, 814 (9th Cir.1986); United States v. Gabriel, 625 F.2d 830, 832 (9th Cir.1980). That, in my opinion, is what we are, without question, required to do in this case.

Turning to the two issues that could result in unnecessary appeals, I would note first that we hold, in our principal opinion, that the officers’ treatment of Curry violated his Fourth Amendment rights. Thus, unless the three officers are shielded by qualified immunity, they are individually liable for this violation — Sergeants Justus and Billesbach as the persons who detained Curry, and Sergeant Foxworth as the individual in charge of the search and seize operation.

In my opinion, the officers are clearly not entitled to immunity, qualified or otherwise. The question whether qualified immunity applies in this case, like all other questions of qualified immunity, “turns on the objective legal reasonableness of the action assessed in light of the legal rules that were clearly established at the time it was taken.” Anderson v. Creighton, 483 U.S. 635, 639 , 107 S.Ct. 3034, 3038 , 97 L.Ed.2d 523 (1987) (internal cites and quotation marks omitted). Specific precedent declaring the particular conduct involved unlawful is not required in order to foreclose a qualified immunity defense; rather, the “law” in question need only be sufficiently clear that a reasonable official would not fail to perceive it. We have recently stated expressly that this principle applies in the case of officers who are implementing policies in an improper manner. In Chew v. Gates, 27 F.3d 1432, 1474 (9th Cir.1994), we said that an officer who unlawfully implements a policy “in an egregious manner or in a manner which clearly exceeds the reasonable bounds of the policy is not entitled to qualified immunity, whether or not there is a case on point declaring such actions unconstitutional.” In other words, even in the absence of relevant case law, if the manner of implementation of an otherwise constitutional policy is not only unconstitutional but clearly so, the officer “will be deemed to have violated ‘clearly established statutory or constitutional rights of which a reasonable person would have known.’ ” Id., quoting Harlow v. Fitzgerald, 457 U.S. 800, 818 , 102 S.Ct. 2727, 2738 , 73 L.Ed.2d 396 (1982).

The patent, egregious violation of Curry’s constitutional rights in the case before us defeats any possible claim that the officers are entitled to qualified immunity. In view of the undisputed facts, it is clear that no officer — reasonable or otherwise — could have believed that the police behavior here would pass constitutional muster. In short, the officers who removed a seriously ill, visibly incapacitated, and semi-naked man from his bed — a man who was suspected of nothing and presented no threat to the officers — and placed that man on a couch in his living room, uncovered, with his genitals exposed, and then subsequently kept him there for more than two hours, should have known that their conduct was unconstitutional. Thus, I would hold today, rather than several years from now, that the officers cannot shield themselves from liability by contending that their implementation of the City of Portland’s policy was conducted in good faith.

I would also hold today, not later, that because the violation of Curry’s Fourth Amendment rights was inflicted pursuant to city policy, regulation, custom, or usage, the City of Portland is subject to municipal liability under Monell v. Dept. of Soc. Serv. of City of N.Y., 436 U.S. 658, 690-91 , 98 S.Ct. 2018, 2035-36 , 56 L.Ed.2d 611 (1978). Once again, the law is clear. Under Monell , it is not necessary that the city policy contemplate that it will be implemented in the manner in which it is enforced by the officers involved. It is sufficient to warrant the imposition of liability on the City that it was the officers’ attempt to enforce the City’s policy that was the cause of the constitutional violation. See Jackson v. Gates, 975 F.2d 648, 654 (9th Cir.1992) (city policy “need only cause [the] constitutional violation; it need not be unconstitutional per se.”). Of course, a municipality cannot be held liable solely because it employs a tortfeasor — there must be an official policy, custom or usage that causes *880 the plaintiffs constitutional deprivation. Monell, 436 U.S. at 694 , 98 S.Ct. at 2037 . It is clear that such an official policy existed in this ease. It is also clear that this policy caused the deprivation of Curry’s constitutional rights.

In sum, in addition to holding that the three Portland police officers violated Curry’s Fourth Amendment rights, I would hold that they are not entitled to qualified immunity, and that the City of Portland as well as the officers are liable for the unconstitutional conduct. Accordingly, I would reverse the judgment of the district court and remand solely for a determination of damages.