Qualified Immunity of Police Officers in Discrimination Case

Summary provided in whole by NCVLI
Elliot-Park v. Manglona, No. 08-16089, 2010 WL 92482 (9th Cir. Jan. 12, 2010).

The Ninth Circuit Court of Appeals held that law enforcement officers who are accused of failing to investigate a crime or make an arrest due to the race of the victim and that of the perpetrator are not entitled to qualified immunity in a case where an automobile accident victim brought a civil rights action against police officers, pursuant to 42 U.S.C. § 1983. The victim, a woman of Korean ethnicity and race, argued that the officers failed to investigate the crime or make a drunk-driving arrest due to her race and the race of the alleged perpetrator, who, like the officers, was of Micronesian race and ethnicity. After the district court denied defendants’ motion to dismiss, defendants appealed, arguing, inter alia, that victims do not have a constitutional right to have police arrest others who have victimized them, and, even if defendants’ conduct violated the victim’s constitutional rights, they were entitled to qualified immunity because such rights were not clearly established at the time of the violation. The court rejected defendants’ first argument, finding that the victim did not base her equal protection claim on a general constitutional right to have an assailant arrested, but instead claimed that the officers’ failure to make an arrest was the result of their racial bias against her and in favor of the alleged perpetrator. As the court noted, although police have broad discretion in deciding whom to arrest, they cannot exercise such discretion in a discriminatory fashion: “For example, a police officer can't investigate and arrest blacks but not whites, or Asians but not Hispanics. Police can't discriminate on the basis of the victim’s race, either.” The court held that the discriminatory failure to investigate a crime or make an arrest violated equal protection. Upon finding that the right to the non-discriminatory administration of protective services is clearly established, the court also held that qualified immunity did not apply to the failure to investigate a crime or make an arrest based on the victim’s and perpetrator’s race. As such, the court of appeals affirmed the district court’s denial of the officers’ motion to dismiss.
A PDF of this decision can also be found at www.ncvli.org, under “New & Noteworthy Cases.”

Appointment to Public Service Advisory Committee

Brittle & Brittle P.C. is proud to announce that Jill E. Brittle has been chosen by the Oregon State Bar Board of Governors to serve on the Public Service Advisory Committee, effective January 1, 2010, for a two-year term. The committee provides volunteer opportunities to increase understanding and respect of the justice system by adult Oregonians.

Oregon Court of Appeals Holds Romantic Overtures Support Stalking Order

In this case, Ms. Van Buskirk, a reporter for the Portland Tribune, sought a Stalking Protective Order against Mr. Ryan. The two met at an open house for the Tribune, but never met after that. However, Ryan began sending letters and e-mails to establish a romantic relationship with Van Buskirk. Despite repeated requests to stop attempting to contact her, Ryan continued to send correspondence, some of which include references to her young son. Ryan also sent correspondence to Van Buskirk’s parents, comparing the two to Romeo and Juliet. He also attempted to reach her by phone at work and home and went to her workplace on repeated occasions. The Court of Appeals found that the communications themselves were not a sufficient basis for the entry of the stalking protective order because there were no unequivocal threats of violence. However, the Court held that the communications provided context for Ryan’s other non-communicative contacts (i.e., going to her place of employment). In light of the many communications, the Court found that these non-communicative contacts formed a pattern of behavior that made Van Buskirk’s apprehension reasonable. The Stalking Protective Order was enforced.

Read Van Buskirk v. Ryan.

Oregon Court of Appeals Rules on Non-Biological Parent Visitations

Ms. Hanson-Parmer appealed a trial court’s decision to give Mr. Parmer parenting time with his non-biological son (D). The parties had three children during their marriage. The fourth child (D) was born during the parties’ separation. A non-parent is only entitled to visitation with a child if he can demonstrate a child-parent relationship. Under ORS 109.119, the Court must look to the six months prior to the filing of the action and determine if the non-parent resided with the child in the same household or otherwise provided for the child on a day-to-day basis. Although Mr. Parmer had regular visits with D every week (from 9:00 am Tuesday until 8:00 pm Wednesday), this does not satisfy the requirements of ORS 109.119(10). Based on these facts, the Court of Appeals ruled that the trial court had erred in awarding Mr. Parmer parenting time with D. The case is reversed and remanded to reflect the same.

Read Liana Martha Hanson-Parmer v. James Michael Parmer.