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.

Civil Remedy for Crime Victim

Below is an interesting holding coming out of Wyoming. It raises several interesting issues. The first that the prosecutor apparently saw fit to waive civil remedy for the victim of crime. Unfortunately, this is not the issue that was clarified. Ultimately, the issue that was appealed clarified the doctrine of absolute immunity, which protects speech during the course of a legal proceeding from allegations of slander or libel.

____________

Summary provided in whole by NCVLI:

Abromats v. Wood, Nos. S-08-0195, S-09-0196, 2009 WL 2517175 (Wyo. Aug. 19, 2009).

Defendant, charged with various crimes related to a traffic accident, attempted in the course of plea negotiations to condition payment of restitution on the accident victim’s release of civil liability. After the prosecutor agreed to this condition, Crisis and Referral Emergency Services (C.A.R.E.S), a victims’ services organization, informed the victims that defendant was taking action in the criminal case to impede their rights in future civil litigation. The victims then submitted an impact statement to the prosecutor through C.A.R.E.S., in which they clarified that they had not agreed to release defendant from civil liability. Defendant and her husband subsequently sued the victims, arguing that two statements in the victim impact statement were libelous. The victims moved for summary judgment, which the district court granted. Defendant and her husband, as plaintiffs in the civil action, appealed the grant of summary judgment. The victims cross-appealed, requesting that the court (1) uphold the dismissal of plaintiffs’ claims; and (2) find that (a) neither of the statements were libel per se, and (b) their statements were protected by the doctrine of absolute immunity, as witnesses in a judicial proceeding. The appellate court affirmed the lower court’s decision, and agreed with the victims that the doctrine of absolute immunity applied. Specifically, the court held that a crime victim’s statement to a victims’ services provider for submission to the court, which is not published to anyone else for any other purpose, cannot support a claim for libel because such a victim has absolute immunity when making statements as a witness in a judicial proceeding. In reaching this decision, the court stated: “The victim of a crime is an integral part of many criminal investigations and we can think of few participants in the judicial process more in need of protection. In addition, a court is required to seek information about restitution to victims under Wyoming law and the court and the prosecutor are required to communicate with the victim about that and other matters. . . . It is vital that victims feel free to speak openly during that process.”

From The Oregonian: What Every Parent Should Know About Wills

This article by Amy Wang in The Oregonian reminds parents about the importance of preparing a will. Parents should consider whether to set up a trust for children to provide for educational, medical, or other expenses. Wills also allow parents to determine who will be the guardian of their children if both parents pass away. Other estate planning tools, such as an advance directive form, allow parents to state whether they want to be placed on life support or receive tube feeding. Planning ahead relieves stress and family disagreement in the event a parent becomes incapacitated. Finally, parents should update a will after the birth of additional children or when their family status has changed.

Read “What Every Parent Should Know About Wills” by Amy Wang.

Oregon Court of Appeals Rules on Spousal Support and VA Payments

Husband and Wife were married for 35 years. Wife was a stay-at-home mom to the parties’ five children and did not work outside of the home during the marriage. Husband retired from the Army with symptoms of post-traumatic stress disorder (PTSD), which became worse over a period of 11 years until Husband was determined to be 100% disabled. Wife filed for divorce and requested spousal support. The trial court determined that only Husband’s non-disability income should be used to calculate spousal support. Wife appealed. The Court of Appeals found that the trial court had erred in failing to consider Husband’s VA benefits. Oregon law defines income for purposes of support payments to include “any program or contract to provide substitute wages during times of unemployment or disability." ORS 25.010(7)(f). The Court modified the trial court’s award to award Wife indefinite spousal support of $1,400 per month.


Read Morales v. Morales.