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Schmidlin v. City of Palo Alto (2007) , Cal.App.4th
[No. H026841. Sixth Dist. Dec. 4, 2007.]
MICHAEL SCHMIDLIN, Plaintiff and Appellant, v. THE CITY OF PALO ALTO et al., Defendants and Appellants.
(Superior Court of Santa Clara County, No. CV794565, Robert A. Baines, Judge.)
(Opinion by Rushing, P.J., with McAdams, J., concurring. Dissenting opinion by Mihara, J.)
COUNSEL
Mark Martel, for Plaintiff and Appellant
Office of the City Attorney, Gary M. Baum, City Attorney, William B. Mayfield, Senior City Attorney, Donald A. Larkin, Assistant City Attorney, for Defendants and Appellants
OPINION
RUSHING, P.J.-
Plaintiff Michael Schmidlin brought this action against the City of Palo Alto and several of its police officers, alleging that the officers committed various constitutional and common-law torts when they detained and arrested him for public drunkenness. After various claims were dismissed on legal grounds, a jury found that officers had used excessive force against plaintiff, but rejected claims of unlawful arrest and fabrication of police reports. Both parties appeal on numerous grounds. We find no reversible error, and affirm the judgment. fn. 1
BACKGROUND
According to plaintiff, he and two companions, Jim Walker and Bill D’Honau, were walking along a downtown Palo Alto street in the early morning hours of {Slip Opn. Page 2} March 29, 1997, when they were accosted by two young women in a car driving the wrong way on the street. As plaintiff tried to persuade the women not to drive in their condition, defendant Bertrand Milliken, a Palo Alto police officer, arrived in his patrol car. Thinking the women were about to be arrested, plaintiff began to walk away. His companions, however, remained behind to watch, so plaintiff turned and waited for them near a sign. Plaintiff and his companions testified that plaintiff was not drunk and did not appear drunk.
Milliken testified that plaintiff staggered drunkenly to the sign, where he appeared to be urinating. He approached plaintiff to investigate. Plaintiff was not urinating, but Milliken asked him for identification anyway. Plaintiff balked at this, and told Milliken he had left his identification in his truck. Plaintiff and his companions told Milliken they were on their way home. Milliken conceded that they told him they were just walking down the street a few blocks and that Walker and D’Honau said they were with plaintiff. Milliken testified that plaintiff appeared drunk, and that soon after their exchange began, plaintiff became hostile, put his face close to Milliken’s, and seemed to be going to fight him. According to Milliken, plaintiff started to walk away several times, whereupon Milliken ordered him to remain. Plaintiff and his companions denied this, though Walker testified that plaintiff averted his gaze at one point and plaintiff testified that he stepped back as Milliken got extremely close to him.
At least four and half minutes after approaching plaintiff, Milliken placed a non-urgent call for backup. In response, defendant Officer Martin drove to the scene. When he arrived, Milliken told plaintiff he was under arrest. Without warning, according to plaintiff and his companions, the officers grabbed plaintiff’s arms and threw him face-first to the ground, both landing on top of him. Plaintiff testified that Martin then began punching him, grabbing his head by the hair and jamming it into the sidewalk, producing cuts and abrasions on his face. A third officer, defendant Trujillo, ran up and hit plaintiff on the legs with a baton. {Slip Opn. Page 3}
Plaintiff’s companions Williams and D’Honau complained at the scene about his treatment, and a police sergeant, defendant Carole Baldwin, arrived to speak to them. Although her report indicated that they were upset about officers’ treatment of plaintiff, they testified that she attributed to them statements they did not make, and omitted statements they did make.
After plaintiff’s arrest, officers took him to Stanford Hospital for an assessment of his injuries. Plaintiff said that officers refused to let him use the bathroom at this time, but defendant Milliken told plaintiff he could use the bathroom if he would provide a urine sample. Plaintiff agreed, although he did not want to provide a urine sample because, he testified, he feared officers might tamper with it. After using the bathroom, he presented a sample cup filled with water. When he went to the bathroom a second time, defendants Milliken and Martin followed him and, according to plaintiff, threw him to the floor and elbowed and kneed him.
Plaintiff was subsequently charged with a number of misdemeanors, as more fully described below. (See p. 9, post.) During the course of the criminal prosecution he made a motion to suppress evidence, alleging that Officer Milliken had lacked sufficient grounds to conduct an investigatory detention, and that all evidence flowing from that detention should be excluded. That motion was denied, and plaintiff was tried in January 1999 on charges of resisting arrest, public intoxication, false identification, assault on a police officer (Martin), and battery on a police officer (Milliken). The jury found him guilty of false identification and not guilty of public drunkenness and assault, but failed to reach a verdict on resisting arrest and battery. Plaintiff successfully moved for a new trial on the false identification charge based on instructional error and juror misconduct. After announcing an intention to retry the remaining charges, the prosecutor dismissed them on the eve of trial.
On December 12, 2000, plaintiff brought this action against Officers Milliken, Martin, Trujillo, and Baldwin, the Palo Alto Police Department, and the City of Palo {Slip Opn. Page 4} Alto. Defendants brought a motion for summary judgment, arguing among other things that the denial of plaintiff’s suppression motion precluded him from pursuing his claims for unlawful detention and arrest, and that the statute of limitations barred the claims for excessive force. The court denied the motion.
The matter came on for trial, and after proceedings described more fully below, the jury found that Officers Milliken, Martin, and Trujillo had violated plaintiff’s constitutional rights by using excessive force against his person. The jury rejected his claims of false arrest and fabrication of police reports. The trial court denied defendants’ motion for judgment notwithstanding the verdict. Defendants, followed by plaintiff, filed timely notices of appeal.
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CALIFORNIA CRIMINAL DEFENSE LAWYER NEWS
This is a long awaited win by Orange County Deputy Public Defender Don Landis in which the Supreme Court agreed that defense attorneys are entitled to file Pitchess (11 Cal.3d 531) declarations under seal. California criminal defense attorneys have been waiting with baited breath for this decision.
The court restates Warrick (35 Cal.4th 1011) stating the showing is sufficient if defense counsel articulates that the police misconduct might or could have occurred. The
court says that in light of Warrick, defense counsel won’t need to disclose
privileged information. All defense counsel has to do is to simply deny the events claimed by the police.
This greatly aids defense attorneys in our efforts to prevail on Pitchess motions because the courts now are reiterating just how minimal our showing needs to be. If defense counsel decides to disclose privileged information, it can be filed it under seal and
then the court rules on it. The court disapproves Davenport (96 CA4th 255),
and rules that the City Attorney, representing the police officer, is NOT
to get an unredacted copy of the affidavit.
This a is a long-awaited and much needed win for California criminal defense lawyers.
Garcia v. Superior Court; 2007 DJ DAR; DJ, 8/10/07; Cal. Supreme Court.
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During three years of patrolling San Diego County’s streets, sheriff’s Deputy Mark R. has been involved in two fatal shootings, has been accused in three lawsuits of excessive force and testified once that he kicked a handcuffed murder suspect.
Benny Ramirez held a photo of his son Jorge, who was shot to death by sheriff’s Deputy Mark R. in 2005. Ramirez said he would like to see law enforcement use less force in the course of duty.
Yesterday, the state Attorney General’s Office announced that the district attorney was right not to prosecute Mr. R. for the killing of Jorge Ramirez, a robbery suspect who was shot six times as he lay on the ground, wounded by a previous gunshot.
The attorney general’s report questions the district attorney’s analysis of the case, but in the end concluded it would be difficult to convince a jury that Ritchie committed a crime.
Ramirez was one of five Latino men shot to death by sheriff’s deputies in Vista in 2005. District Attorney Bonnie Dumanis cleared the deputies of wrongdoing in all five cases.
In February, Latino activists and the American Civil Liberties Union called on the attorney general to review Dumanis’ conclusions. The Attorney General’s Office found in each case that the district attorney acted correctly, but it took five months to reach a decision in the Ramirez shooting. The others were decided in May.
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ROCHESTER, N.H. –A 48-year-old Dover man has been charged with tape-recording his own drunken driving arrest early Monday.
Police say they saw Christopher Power sitting behind the wheel of a vehicle with its motor running just before 3 a.m.
After speaking with Power, police charged him with drunken driving, and discovered a running audio recorder on the driver’s seat. In addition to drunken driving, Power was charged with wiretapping.
COMMENTARY: Here, in San Diego, police began using video recording devices some years ago. They stopped when defense attorneys started figuring out that what the arresting cops put in their reports wasn’t matching was really happened according to the videotape. The cop would write that the suspect failed all of the field coordination tests. The video didn’t show that. The cop would write that the person seemed impaired. The video didn’t show that. So, what was the outcome? They canned using the videotapes. It wasn’t good for police business. This New Hampshire man should get a medal for taping his stop. Cops should be prosecuted if they destroyed the evidence.
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Veteran San Diego CHP Officer Brian K., accused of assaulting a drunken-driving suspect at the Vista jail, pleaded not guilty Thursday to two felony charges of assault and filing a false report.
Officer K. was allowed to remain free on his own recognizance. He faces up to 2 1/2 years in prison if convicted. He is charged with two felonies, assault while acting as a peace officer and filing a false report while acting as a peace officer, and misdemeanor battery.
Yes, folks, it happens. A veteran San Diego CHP officer called repeatedly by prosecutors for years to testify truthfully against citizens accused of DUI, is caught beating the daylights out of a suspect and he does it on video.
It happens. It happens much more than the general public would like to admit.
What is even more frightening is that the suspect allegedly had a .07 blood alcohol, below the legal limit, and his lawyer pleaded him to a DUI.
SAN DIEGO: A CESSPOOL OF MISCONDUCT
We have the same issues in San Diego as in Los Angeles and San Jose. The problem,
much of the time, is that prosecutors and judges protect law enforcement officers at all costs, just as they protected Peter Pitchess in Los Angeles in the 1970′s.
Let me give you some examples.
A. I was a deputy public defender in 1992. I noticed over a period of just a week one officer arrested an unusually high number of people every night. I recall seeing five police DUI arrest reports on one night for this officer. But there was more. It looked like the officer had “whited out” the names of the suspects, and written new names in over the white out. The reports all looked essentially the same- the suspect usually was alleged to have “rolled” through an intersection in Mission Beach. But the suspect’s name was different from report to report. I reported this to my supervisor and heard nothing else.
In 2006 I saw that name again. History seemed to be repeating itself. To make a very long story short, I learned that a former city attorney prosecutor had gotten this police officer kicked off the DUI enforcement team. It seems that after the police department was satisfied that no one would be able to track this misconduct, they put him right back in the same neighborhood and he began falsifying police reports again.
What is shocking about this case is that the prosecutor who got this officer kicked off the DUI enforcement team for falsifying records is refusing to cooperate with me. He is a judge now. He never told any defense attorney that I know of about the officer falsifying reports. And now, some 14 years later, he has declined to assist me in my investigation which I take as tacitly trying to hide this officer’s continued misconduct from the defense bar.
Since I learned of this officer’s misconduct, numerous of his cases have been dismissed when defense attorneys caught him lying. We have been building up our own dossier of misconduct and sharing it because the courts are reluctant to provide us documents in this officer’s Pitchess file. I suspect this is because most of the judges run on a “Law Enforcement’s Choice” ticket for re-election. Granting pitchess motions bodes badly for re-election given the power of the police unions.
I am counsel on a Fourth District Court Appeal, Division One, case where a justice issued an Order to Show Cause why the Pitchess decision denying my request in that case should not be reversed. In short, the prosecution withheld evidence. The trial court, a former police officer, denied a very valid motion on a this rogue officer for no other reason than to protect him. But the Court of Appeal issued a stay of proceedings and demanded the City answer.
I’m still talking about the same police officer.
Another example of the prosecutors trying to protect this known rogue officer occurred when a prosecutor put him on the witness stand to lie. A Deputy City Attorney knew that defense counsel was going to call the officer’s sergeant to testify against the rogue officer in a suppression motion. Instead of just conceding that this rogue officer lied, the prosecutor put him on the stand. He lied. His sergeant testified and impeached the officer. The prosecutor put the rogue officer back on the witness stand to tell the judge that the sergeant was wrong. In short, this prosecutor suborned perjury. The judge granted the defense attorney’s motion and the case was dismissed based on the lack of this rogue officer’s credibility.
But the judge took no action against the prosecutor for putting on false testimony.
This rogue officer is still patrolling. He is still engaging in the same behavior. He’s out there tonight.
B. In 2000 another rogue officer from the DUI task force stopped a young Irish woman for “squealing” her wheels as she turned out of a driveway. The stress caused her to have an asthma attack. She asked the officer is she could use her inhaler. He said no. She repeated her requests continuously until she could stand it no longer. She reached into her pocket for her inhaler. The officer slammed her face into the cement, breaking her nose. The City paid out a hefty sum in damages after a civil rights case was filed. She was so terrified of this officer she moved to San Francisco.
Fast forward to 2007. A paraplegic is stopped by this same officer for allegedly making an illegal turn. The paraplegic was ordered out of the car. He told the officer he could not get out. The officer started yelling at him to get out. A passenger got the wheelchair out of the trunk. The paraplegic got himself into the wheelchair. The officer wheeled him to the rear of the patrol unit where he yelled, “Get out!” The paraplegic asked for accommodations under the Americans With Disabilities Act. He asked for a van. The office started yelling for him to get into the rear of the patrol unit. He could not. The officer hoisted him out of his chair and threw him longways into the back of the cruiser. Then the officer raced down the highway at speeds of more than 90 mph and slammed his brakes on from time to time so the paraplegic would slam into the rear of the passenger seat. Is a well known police abuse technique called the “Hollywood Screen Test.”
Once at the station, the officer yelled at the paraplegic to “get out.” Again, he said he could not. So, the officer grabbed onto the paraplegic’s ankles and pulled him out of the police cruiser, causing the man’s head to slam on the cement floor and bounce. He sustained a rotator cuff injury and a concussion.
The police report says that the paraplegic “walked with an unsteady gait.” The paraplegic wishes he could walk with any gait. But, he cannot walk at all.
I filed a Pitchess motion on this officer. I’ve done it many times. I know he has a massive file because I’ve had several judges provide me damning information from this file. What is shocking is that other judges have told me once they have reviewed the file that there is nothing discoverable in it. These judges lied about the empty contents of the file to assist the officer or the prosecution, not knowing I knew they were lying. That’s the power of the police unions.
After I filed the Pitchess motion in this case, and was denied the evidence I know exists therein, the city filed “resisting arrest” charges. They did that either to retaliate against the client for exercising his right to seek this discovery, or they waited to file this false charge until after the motion was denied to limit my showing of “good cause.” Now that I have filed another Pitchess motion, the city has accused me of forum shopping to find a judge who would grant the motion when, in fact, I am entitled by law to another motion give the new, false, allegations.
Why protect a cop who has cost the taxpayers money and who will do so again?
C. I represent a teenager, a former high school wrestler with no criminal record, who was brutally beaten and disabled by a rogue Chula Vista police officer. The City of Chula Vista has three lawyers defending the city and the officer. They actually claim it didn’t happen. The client is now disabled. We have evidence of the officer’s brutal history, and we have evidence of the officer lying to protect himself. I suspect the City of Chula Vista has spent more than $100,000 thus far trying to defend a rogue officer who they know has a habit of beating people.
D. Several weeks ago an off duty Oceanside police officer sat in his car in a parking lot and unloaded 5 measured rounds into the car occupied by a mother and her eight-year-old son. His window was shattered, indicating that he shot at the mother and child through his window. Any other person would have been arrested for attempted murder and bail would have been set at $1 million. Instead, this officer is on leave with pay. San Diego prosecutors have never seen a cop they wanted to prosecute. Every officer involved shooting is exonerated.
PROSECUTORS PROTECT POLICE OFFICERS
This leads me into a very frightening point: prosecutors suborn perjury and withhold evidence. Now, that is not to say all prosecutors do this. Many do, however. That is why the Oceanside officer who shot the mother and child is still at large. That is why the four rogue officers listed above are still working. That is why the Isla Vista indictments were quashed. That is why Ramparts misconduct festered for so long.
Take for example, how the law firm representing the Legal Defense Fund instructs prosecutors to destroy evidence. They suggest that since evidence of police officer misconduct can be removed from an officer’s personnel file after five years, prosecutors should not warehouse such documentation in their own offices. In other words, this firm suggests that prosecutors destroy evidence the accused has a constitutional right to obtain pursuant to Brady v. Maryland (1963) 373 U.S. 83, stating, “Thus, it is in the best interest of both officers and law enforcement agencies to have a mechanism for routine destruction of citizen complaints that are older than five years. (See Exhibit B, attached herewith)
The problem is that prosecutors cannot legally or ethically destroy Brady evidence. But this Santa Monica Law firm representing law enforcement agencies suggests that they should do this anyway.
Note: We cannot find who is the original author of this article. If you are, or know who is, please contact us and we will give proper credit or delete this from our blog.
