UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
Susan M. Block, Ph.D.,
Plaintiff and Appellant,
v.
City of Los Angeles,
Defendant and Appellee.
Appeal from the Decision of the United States District Court
for the Central District of California
Hon. Manuel Real, United States District Judge
C.D. Cal. Case No. CIV 01-2133 R (RCx)
OPENING
BRIEF OF PLAINTIFF AND APPELLANT
Susan
M. Block, Ph.D.
8306 Wilshire Boulevard Suite #1047
Beverly Hills, California 90211
Telephone: 213.749.1330
Plaintiff and Appellant in Propria Persona
TABLE OF CONTENTS
Contents
Pages
TABLE
OF CONTENTS
TABLE OF AUTHORITIES
ISSUES ON
APPEAL
JURISDICTION
STANDARD OF
REVIEW
STATEMENT
OF THE CASE
SUMMARY OF
THE ARGUMENT
STATEMENT
OF FACTS
A. Background
B. LAPD Enter
Plaintiff's Studio Under Threat of Overwhelming Force
C. More Officers Arrive
and Search Plaintiff's Studio
D. The Police
Remain to Watch The Dr. Susan Block Show!
ARGUMENT
1. THERE WAS
SUFFICIENT EVIDENCE THAT DEFENDANT'S OFFICERS ENTERED PLAINTIFF'S STUDIO WITHOUT
A WARRANT, CONSENT OR EXIGENT CIRCUMSTANCES TO WITHSTAND DEFENDANT'S RULE 50
MOTION.
1. Defendant's
Warrantless Entry Presumptively
Violated the Fourth Amendment.
2. Plaintiff
Did Not Consent to The Entry.
3. There Was
No Exigency.
2. THE OFFICERS
VIOLATED THE FOURTH AMENDMENT BY REMAINING AT THE STUDIO LONG AFTER ANY CONSENT
OR EXIGENCY EXPIRED.
3. THE TRIAL
COURT ERRED IN REQUIRING PLAINTIFF TO DEMONSTRATE THAT THE OFFICERS ACTED WITH
SPECIFIC INTENT, AND THAT SHE SUFFERED ACTUAL DAMAGES; REGARDLESS PLAINTIFF
PROVED DAMAGES.
CONCLUSION
STATEMENT
OF RELATED CASES
CERTIFICATE
OF COMPLIANCE
PROOF OF SERVICE
BY MAIL
TABLE OF AUTHORITIES
Cases Pages
Caballero
v. City of Concord,
956 F.2d 204 (9th Cir.1992)
Coolidge v.
New Hampshire,
403 U.S. 443, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971)
George v.
City of Long Beach,
973 F.2d 706 (9th Cir. 1992),
cert. denied 507 U.S. 915, 113 S.Ct. 1269, 122 L.Ed.2d 664 (1993)
Illinois v.
Rodriguez,
497 U.S. 177, 110 S.Ct. 2793, 111 L.Ed.2d 148 (1990)
Lawson v.
Umatilla County,
139 F.3d 690 (9th Cir. 1998)
Payton v.
New York,
445 U.S. 573, 100 S.Ct. 1371, 63 L.Ed.2d 639 (1980)
United States
v. Driver,
776 F.2d 807 (9th Cir. 1985)
United States
v. Sealey,
830 F.2d 1028 (9th Cir.1987)
Constitutional Provisions, Statutes and Rules Pages
U.S.
Const. Amend. IV
28 U.S.C.
§ 1291
28 U.S.C.
§ 1331
28 U.S.C.
§ 1343
28 U.S.C.
§ 1367
42 U.S.C.
§ 1983
Fed.R.Civ.P.
50
ISSUE ON APPEAL
Is there sufficient evidence in the record that defendants' police officers deprived plaintiff Susan M. Block, Ph.D., of rights secured by the Fourth Amendment by making a warrantless entry into her studio without consent or exigency, and, once there, exceeding the scope of any consent or exigency which might have justified the entry, to withstand defendant's Rule 50 motion for judgment as a matter of law?
TRIAL COURT AND APPELLATE JURISDICTION
Plaintiff
alleges deprivations of federal constitutional rights giving her claims for
damages pursuant to 42 U.S.C. § 1983. Therefore, the trial court had jurisdiction
pursuant to 28 U.S.C. § 1331 and 28 U.S.C. § 1343. Plaintiffs' state-law
claims are so related to their federal-law claims that they form part of the
same case or controversy. Accordingly, supplemental jurisdiction over those
claims was conferred upon the trial court by 28 U.S.C. § 1367.
Plaintiff appeals from the trial court's order granting judgment as a matter
of law pursuant to Fed.R.Civ.P. 50 at the close of plaintiff's case. Judgment
was entered for defendant on April 1, 2002. Accordingly, this is an appeal from
a final order pursuant to 28 U.S.C. § 1291.
STANDARD OF REVIEW
Whether the Court properly granted defendant's Rule 50 motion for judgment as a matter of law is reviewed de novo. Lawson v. Umatilla County, 139 F.3d 690, 691 (9th Cir. 1998).
STATEMENT OF THE CASE
This is a civil rights case for money damages pursuant to 28 U.S.C. § 1983 and state-law tort theories. AER 8-19.1 Plaintiff Susan M. Block, Ph.D., produces television shows focusing on sex education and advice. She alleges that during the evening of February 26, 2000, defendant's police officers entered her studio under threat of force, and thereafter occupied and searched it, interfering with her production of "The Dr. Susan Block Show." She claims that as a result defendant deprived her of Fourth Amendment rights, and is liable for state-law torts.
Initially filed in the Superior Court for Los Angeles County, the case was removed by defendants and assigned to United States District Judge Manuel Real. AER 20-24. On November 5, 2001, the trial court approved the parties' pretrial order. AER 29-41. On November 26, 2001, Judge Real granted, over plaintiff's objection, a motion to withdraw filed by plaintiff's counsel. AER 42-44. The case proceeded to trial on March 5, 2002 with plaintiff in propria persona. AER 4. At the close of plaintiff's case in chief on March 8, 2002, the trial court granted defendant's motion for judgment as a matter of law. AER 45-46; 4 RT at 34-35.2 Judgment was subsequently entered in favor of defendant on April 1, 2001. AER 47-49. Plaintiff timely noticed this appeal, seeking reversal of the Court's order granting judgment as a matter of law and the ensuing judgment. AER 50-51.
"Those
who would give up essential Liberty, to purchase a little
temporary Safety, deserve neither Liberty nor Safety."
- Benjamin Franklin
SUMMARY OF THE ARGUMENT
Plaintiff is a sex educator, therapist and entertainer who hosts regular shows broadcast over the Internet and on cable television. While she was preparing for her weekly show, her private studio was raided by about 20 Los Angeles police officers, who claimed they were looking for four gunmen who had committed a robbery and taken hostages. But the officers took only a few minutes to look for these alleged gunmen, who were not there. Instead of leaving, the officers remained, terrifying plaintiff, her staff and guests by pointing guns at them and questioning them about their show and attire. Although plaintiff asked them to leave several times, they occupied her premises for hours, searching through her property and effects, and delaying her from going on the air, all of this without a warrant, consent or exigency. The officers even insisted on hanging around to watch the show once it finally got underway. No one was arrested or charged with a crime.
After plaintiff rested her case at trial, Judge Real granted judgment as a matter of law for defendants. The ruling was in error. The jury should have been allowed to determine whether the Los Angeles police department violated plaintiff's rights by entering her studio without a warrant, consent or exigent circumstances. Even if there were consent or an exigency to justify the initial entry - and there was more than sufficient evidence for the jury to have concluded that the purported exigency was pretextual - the police officers remained on the premises beyond any reasonable necessity, and searched areas unrelated to the purported exigency. The trial court's ruling that the officers intended no harm, and that plaintiff was not damaged, is contrary to the evidence and the law.1
Accordingly, the Court should reverse the judgment and remand the case for a new trial.
STATEMENT OF FACTS
A. Background
Plaintiff Susan M. Block, Ph.D., is an internationally known sex educator and therapist who lectures regularly at University of Southern California and Yale University (her alma mater), has served in an advisory capacity to the Los Angeles Public Defenders' Office (Sex Crimes Division), and hosts an award-winning,1 critically acclaimed2 sexuality talk show, broadcast live on her Internet web site3 and taped for cable television every Saturday night. AER 135 (3A RT 119). Plaintiff also hosts specials for HBO and other television outlets on various subjects relating to human sexuality. AER 119-120 (3A RT 99-100). Her show features a variety of guests, ranging from authors like Pulitzer-Prize winning New York Times science writer Natalie Angier and Orthodox Rabbi Shmuley Boteach to adult film stars like Ginger Lynn, the featured guest on the night of February 26, 2000. AER 137 (3A RT 121); AER 151 (3B RT 57).
Like a chef hosts a cooking show from a kitchen, surrounded by pots and pans, Dr. Block hosts her sexuality show from a bed, surrounded by various pillows and "adult toys," including dildos and vibrators. AER 121 (3A RT 101). Though some of these objects may be considered provocative or controversial by people with tastes different than those of Dr. Block and her audience, they are certainly not illegal to own or possess. In fact, they are common props used on other cable television shows and in mainstream movies, as well as visibly displayed for purchase in many stores throughout the Los Angeles area. Like most studios, Dr. Block's includes couches, chairs, and a bar with complementary sodas, juices and alcoholic beverages for guests. It also contains a critically acclaimed4 erotic art gallery featuring paintings, sculpture and photography by award-winning international and local artists. AER 129 (3A RT 111).
"The Dr. Susan Block Show" has been a fixture on Los Angeles cable television since 1994, airing every Saturday night on Adelphia, AOL/Time Warner and AT&T Broadband. For six years before that, Dr. Block was a popular voice on Los Angeles radio. Her HBO specials, along with her dozens of appearances on national television talk shows, have been seen by millions.5
On the night of February 26, 2000, at between 9:15 and 9:30 p.m., about an hour before show time, preparations for plaintiff's regular weekly television show taping and live Internet broadcast were shattered when about 20 officers of the Los Angeles Police Department, armed with assault rifles and automatic weapons, demanded entry under threat of force, and without a warrant, into the locked, private broadcast studio owned and operated by plaintiff. AER 55-56 (1 RT 11-12).
About 20
officers with guns drawn swarmed into the stairwell of the building. AER 63
(2A RT 13). Under threat of deadly force, plaintiff's camera crew, production
and security staff were held up against the wall, frisked and made to evacuate
the building. AER 75 (2A RT 74). When plaintiff's cameraman, Onie Montes, tried
to tape what was going on, other officers demanded that he turn the camera off.
AER 76 (2A RT 76); AER 84 (2B RT 12).
About three LAPD officers quickly isolated plaintiff, one of them holding a
large, high-powered gun to her head, and questioned her about her costume and
the show. AER 123 (3A RT 104). They admonished her about wearing jewelry which
could be mistaken for a weapon. AER 122 (3A RT 103). The officers indicated
that plaintiff was known to them as a television personality, AER 122 (3A RT
103), AER 104 (2C RT 37), AER 72-73 (2A RT 52-53). Indeed, one officer, Rezi
Montes, was the sister of Mr. Montes, plaintiff's cameraman. AER 110 (3A RT
23), AER 91 (2B RT 62). She informed her superior officers at the scene of this
fact. AER 92 (2B RT 64).
After being interrogated about the show and her costume, AER 139 (3A RT 128); AER 143-144 (3B RT 9-10), plaintiff asked the officers why they were on her premises. They claimed to be responding to an anonymous 911 call that "four armed Hispanic men who had robbed and kidnaped someone," had somehow gotten into plaintiff's guarded and locked facility. AER 56 (1 RT 12); AER 123 (3A RT 104). Plaintiff informed them that there were no gunmen, kidnapers or crime victims there; it was just herself and her crew getting ready for her normal Saturday night broadcast and taping. AER 145-146 (3B RT 11-12). She asked them to leave because she had to start her show, but they refused. AER 125-127 (3A RT 106-108); AER 148A (3B RT 24), AER 65 (2A RT 22).
C. More Officers Arrive and Search Plaintiff's Studio
The officers' interest quickly turned from supposedly investigating a violent felony to plaintiff's art collection. AER 66 (2A RT 23). By their own testimony, these officers decided to ignore the mystery gunmen and the 911 call, as they ogled "phallic symbols and nudity," AER 59 (1 RT 16), the erotic paintings and photography on the walls, the sculptures on the tables, the videotapes in the archives and the dildos on the set. AER 124 (3A RT 105); AER 153 (3B RT 73).
Within a few minutes, before allowing plaintiff to make contact with her staff, who were being held incommunicado outside the studio facilities, AER 125 (3A RT 106), commanding officer Sergeant Sanchez was radioing in "experts."
"Art experts?" plaintiff asked. AER 127 (3A RT 108).
"We call them Vice," he replied, chuckling. AER 93 (2B RT 89); AER 127 (3A RT 108).
A short time later, several plainclothes detectives entered the building without a warrant or consent, AER 149 (3B RT 34), fanning out around plaintiff's premises, closing off critical areas to plaintiff, and conducting a highly detailed search. AER 112 (3A RT 25). Detectives searched through plaintiff's show set, her computer room, her wardrobe, her lingerie drawers, her kitchen, her bathroom, her video archives and supply room. AER 69 (2A RT 39); AER 70 (2A RT 44). Detective Kilgore and approximately four other officers were especially active in their search of hundreds of tapes in plaintiff's videotape library, questioning her Master Engineer Theron Marks about many titles, interfering with his preparations and preventing him from starting the show, causing it to be delayed by at least one hour, AER 86 (2B RT 24), but never viewing a single tape "under investigation." AER 71 (2A RT 46).
More officers soon followed the original LAPD patrolmen and the first wave of detectives, including other detectives as well as officers from Organized Crime and Building and Safety. Their expanded, warrantless search AER 147 (3B RT 18) prevented plaintiff's staff from starting her regularly scheduled live broadcast and television taping, causing it to be delayed for at least an hour, AER 79 (2A RT 82); AER 87 (2B RT 29), and caused technical problems due to her engineer's and cameramen's inability to access critical equipment and supplies, AER 79 (2A RT 82). The police officers would not allow plaintiff's staff access to computers to notify plaintiff's Internet subscription audience that the show would be delayed. AER 89-90 (2B RT 54-55); AER 94 (2B RT 91).
When the officers let about 40 to 50 of plaintiff's invited guests into the studio, they demanded to check their identifications, invading the privacy of such guests, including an Orange County assemblyman, AER 148 (3B RT 20), and frightening away many others with their armed "uniformed presence" AER 67 (2A RT 24); AER 130 (3A RT 113) and blockade of the street. Though plaintiff knew that she and her staff had done nothing to deserve this, she was humiliated by the presence of armed uniformed police checking the identification of her guests. AER 99 (2C RT 5).
D. The Police Remain to Watch The Dr. Susan Block Show!
At this point, because of the police occupation and investigation which continued to interfere with her staff's ability to work, AER 87 (2B RT 29); AER 88 (2B RT 46), as well as ruined her composure, and because it was already over an hour late, plaintiff decided it best to cancel the show that night. AER 130 (3A RT 113). But officers insisted that the show go forward in their presence, AER 131 (3A RT 114), even as some continued to search, while others just hung around, intimidating guests. AER 118 (3A RT 95). The occupants felt threatened, AER 80 (2A RT 91), and helpless to stop this unreasonable intrusion, even as other officers apologized for it. AER 103-104 (2C RT 36-37). Plaintiff felt compelled to comply with the officers' demand that she do her show, and went through the motions, trying to ingratiate herself with the police that were still there, so that they would not destroy her property or harm anyone while she was doing the show; the resulting tape of the February 26 show was unusable for any of plaintiff's normal outlets. AER 133 (3A RT 117); AER 152 (3B RT 63).
Throughout this time, police were in every corner of plaintiff's premises (except in front of her cameras), threatening plaintiff, her staff and guests, laughing and making sexist remarks and jokes. AER 84A (2C RT 13). Some officers apologized to plaintiff and her staff for the behavior of other officers. AER 150 (3B RT 48). Around midnight, after turning away every request to leave by plaintiff and her staff as well as some of her guests, including two attorneys, Inspector Vaccarro arrived at the scene and told the officers to leave. No one was arrested, and no one was charged with any crime, though officers did seize a tape of one of plaintiff's HBO specials just before they left. AER 132 (3A RT 116); AER 150 (3B RT 48).
ARGUMENT
II. THERE WAS SUFFICIENT EVIDENCE THAT DEFENDANT'S OFFICERS ENTERED PLAINTIFF'S STUDIO WITHOUT A WARRANT, CONSENT OR EXIGENT CIRCUMSTANCES TO WITHSTAND DEFENDANT'S RULE 50 MOTION.
A. Defendant's Warrantless Entry Presumptively Violated the Fourth Amendment.
The Fourth Amendment to the Constitution of the United States enshrines one of the most fundamental rights of our democracy:
The right of the people
to be secure in their persons, houses, papers, and effects, against unreasonable
searches and seizures, shall not be violated, and no Warrants shall issue, but
upon probable cause, supported by Oath or affirmation, and particularly describing
the place to be searched, and the persons or things to be seized.
In recognition of the importance of the warrant clause in our Bill of Rights,
the Supreme Court prohibits police entering premises - even when probable cause
exists to arrest an occupant for a recent violent felony - absent a warrant
or exigent circumstances. Payton v. New York, 445 U.S. 573, 589-90, 100 S.Ct.
1371, 1382, 63 L.Ed.2d 639 (1980). Here there was no warrant.
Payton notes that the roots of the warrant clause are deep, id. at 584, 100 S.Ct. at 1378 ("indiscriminate searches and seizures conducted under the authority of 'general warrants' were the immediate evils that motivated the framing and adoption of the Fourth Amendment"), its reach wide, id. ("the principles reflected in the Amendment . . . 'apply to all invasions on the part of the government and its employees of the sanctity of a man's home and the privacies of life'") (quoting Boyd v. United States, 116 U.S. 616, 630, 6 S.Ct. 524, 532, 29 L.Ed.2d 746 (1886)), and its exceptions limited to one: "Absent exigent circumstances, that threshold may not reasonably be crossed without a warrant." Id. at 588-89, 100 S.Ct. at 1382.
Payton starts from the "'basic principle of Fourth Amendment law' that searches and seizures . . . without a warrant are presumptively unreasonable." Id. at 586, 100 S.Ct. at 1380. There is no dispute that defendant's officers did not have a warrant to enter plaintiff's studio. "'[A] search or seizure carried out on a suspect's premises without a warrant is per se unreasonable, unless the police can show that it falls within one of a carefully defined set of exceptions based on the presence of "exigent circumstances."'" Id. at 586 n. 25, 100 S.Ct. at 1380 n. 25 (quoting Coolidge v. New Hampshire, 403 U.S. 443, 474-75, 91 S.Ct. 2022, 2042, 29 L.Ed.2d 564 (1971)).
The trial court's "Judgment on Defendant City of Los Angeles' Motion for Judgment As a Matter of Law on Plaintiff's Entire Complaint," AER 47-49, which purports to set forth its analysis of the deficiencies of plaintiff's claim, does not address whether plaintiff's evidence could support a jury finding that the officers violated the warrant clause. It does suggest, however, two justifications for defendant's entry, consent and exigent circumstances. As demonstrated in the following subsections, there was sufficient evidence in the record to warrant a jury determination that the officers had neither consent nor an exigency, and therefore the warrantless entry of plaintiff's studio violated the Fourth Amendment.
B. Plaintiff Did Not Consent to The Entry.
Although police officers may conduct a warrantless search when they have obtained the voluntary consent of a party with common authority over the premises, Illinois v. Rodriguez, 497 U.S. 177, 179, 181, 110 S.Ct. 2793, 2796, 2797, 111 L.Ed.2d 148 (1990), there was sufficient evidence here for the jury to conclude that these officers did not have consent to enter the studio. Evidence at trial established that the police entered with an LAPD helicopter hovering deafeningly over the roof, AER 57 (1 RT 13); AER 120 (3A RT 100), blinding beams flashing through the windows and skylight, guns aimed at the building, voices barking "SWAT! Police!" AER 109 (3A RT 16), and pounding on the door, AER 85 (2B RT 17). Officers yelled that they would use force to break in unless plaintiff's security personnel opened it immediately. AER 81 (2A RT 97). Plaintiff's security complied and opened the door, AER 84 (2B RT 12); AER 138 (3A RT 123). Without a warrant or an exigency, that entry violated plaintiff's fourth-amendment rights.
The trial court purported to find consent because plaintiff "had no expectation of privacy on the date of the event in question. By her witnesses her business opened at 8:30 p.m. and . . . the officers arrived at 9:30 p.m. to her open business." AER 48.
There is substantial evidence in the record, however, demonstrating that plaintiff's business was not open to the public - or the police. Plaintiff's establishment is not a store, nor is it a public theater. It is primarily a broadcast and recording studio open only to staff members and invited guests whose names are on a list in possession of plaintiff's security personnel. AER 98-99 (2C RT 4-5). On premises, there are also private offices, dressing rooms, kitchen and bathroom facilities, in addition to an art gallery. AER 134 (3A RT 118). The gallery is open for private viewing by invited guests before and after plaintiff's television broadcasts or by special appointment. All of the guests, whether featured on the show or in the live studio audience, must be invited to these private broadcast-tapings, which are held in a secure and not publicized location, at that time 1235 South Hope Street. AER 98-99 (2C RT 4-5).
In part because this is in a relatively dangerous downtown Los Angeles neighborhood, AER 120-121 (3A RT 100-01), and in part because plaintiff desires to maintain control over the people who attend her Internet broadcast and television taping sessions, special security precautions are always in effect. AER 74-75 (2A RT 73-74). Entry to the building is through an industrial double-wide deadbolt-secured door protected by an iron gate which is kept locked at all times, only opened for staff and invited guests by plaintiff's doorman. There is also a doorbell, and an audio monitoring system so that potential visitors can announce their identities, and plaintiff's security staff can check to see if they are on the list of invited guests. To gain consensual entry, all staff members and guests must ring the doorbell and announce their identities over the intercom. AER 75 (2A RT 74).
The trial court sought to buffet plaintiff's claims of illegal entry with references to "the world observ[ing] her every action via the Internet, video and television." Although anyone with cable television or Internet access can watch what happens on the set of "The Dr. Susan Block Show," members of the public cannot wander from the streets of downtown Los Angeles into the studio during the live broadcast-tapings of the shows, any more than members of the public (or the Los Angeles Police Department) can wander into a network studio during a broadcast of the evening news or the taping of a situation comedy show.
C. There Was No Exigency.
Payton recognizes one exception to the warrant requirement, exigent circumstances. 445 U.S. at 589, 100 S.Ct. at 1382. The trial court suggested that the entry was legal because "the officers were responding to a 911 call." AER 47. It takes much more to establish the exigency exception to the warrant requirement.
Since a warrantless
arrest is "presumptively unreasonable," Payton v. New York, 445 U.S.
at 586, 100 S.Ct. at 1380, we have recognized that the government bears a heavy
burden of demonstrating that exceptional circumstances justified a departure
from the normal procedure of obtaining a warrant. United States v. Spetz, 721
F.2d 1457, 1465 (9th Cir.1983). Because of the intrusive nature of a warrantless
arrest, the government must demonstrate specific and articulable facts to justify
the finding of exigent circumstances, and this burden is not satisfied by leading
a court to speculate about what may or might have been the circumstances. See
Arkansas v. Sanders, 442 U.S. 753, 759-60, 99 S.Ct. 2586, 2590-91, 61 L.Ed.2d
235 (1979).
United States v. Driver, 776 F.2d 807, 810 (9th Cir. 1985) (emphasis added).
The government did not meet this burden. Instead, plaintiff presented sufficient evidence for a jury to find no exigency. The supposed 911 call was extremely dubious, and the jury would have been justified in concluding that it was unreliable, or even a pretext staged by LAPD officers so that they could watch Dr. Block do her show that night with her featured guest, well-known adult film star Ginger Lynn. The call originated from a cell phone, through another agency (CHP), and the caller was never identified. Defense counsel cross-examination of plaintiff's cameraman Onie Montes indicated that the defense considered the 911 call to be fabricated by Mr. Montes, though the voice on the tape clearly did not match Mr. Montes' voice. AER 101-102 (2C RT 32-33); AER 113-114 (3A RT 35-36).
More importantly, although the entry was supposedly to apprehend armed and dangerous kidnapers, the officers did not act as if they were in hot pursuit of fleeing felons. Officer Malik testified that he was in the primary unit dispatched to answer the 911 call. AER 117 (3A RT 92). Amazingly, he was met in front of plaintiff's premises by several other officers, who were already securing the area around the building and planning a tactical entry. AER 115-116 (3A RT 88-89). These first officers on the scene did not attempt to speak via telephone, bullhorn or any other means with the "robber-kidnapers" to protect the lives of the "hostages," plaintiff or her staff. AER 64 (2A RT 16). Nor did they enter the building immediately, despite time being of the essence, as indicated by the content of the "911 call," but instead took time to plan a tactical entry using the threat of overwhelming force.
Moreover, the jury could have inferred from the conduct of the officers after they entered the studio that the 911 call was a pretext for entry. As soon as the officers entered the building, they saw several staff members of plaintiff, who did not match the description of the gunmen or hostages described in the 911 call. Although they frisked these individuals at gunpoint, they did not ask any of them if they had seen "four armed Hispanic men" with a hostage entering the building or already inside of it. AER 77 (2A RT 78). In fact, there was no testimony during trial that either the commanding officer or any of the other officers asked anyone at the studio about these purported dangerous gunmen. Rather, staff members who did not resemble the description of the gunmen were held at gunpoint, patted down and asked questions like "what kind of business is this?" AER 78 (2A RT 79). The officers who held plaintiff at gunpoint also did not ask her if she had seen or knew anything about the gunmen. AER 145-146 (3B RT 11-12). They only told her about the 911 call when she asked them what they were doing in her studio. AER 139 (3A RT 128).
Under such circumstances, the jury should have been allowed to determine whether the existence of an exigency excused the requirement of a warrant. The trial court's Rule 50 order usurped the jury's function and was error. Accordingly the judgment should be reversed, and the case remanded for a trial as to whether the officers' warrantless entry therefore violated the Fourth Amendment.
III. THE OFFICERS VIOLATED THE FOURTH AMENDMENT BY REMAINING AT THE STUDIO LONG AFTER ANY CONSENT OR EXIGENCY EXPIRED.
Even were the initial
entry consensual, the extent of the search must be confined to the terms of
the consent given. United States v. Sealey, 830 F.2d 1028, 1032 (9th Cir.1987).
Here, there is clear evidence that the police went places they were told not
to go, looked in places they were told to stay out of and did things to people
that were not welcomed. When plaintiff protested and asked the officers to please
leave, saying that she and her staff were doing nothing wrong or illegal, and
that they had a scheduled show to do with many invited guests coming, the officers
still refused to leave and expanded their search of her premises for some two
and a half hours. AER 130 (3A RT 113).
Similarly, even if exigent circumstances justified the warrantless entry of
the studio, the officers noticed immediately that there were no Hispanic gunmen
with hostages in plaintiff's studio. Yet they remained and searched for hours.
The doctrine of exigent circumstances cannot be used to justify the officers
remaining on the premises and searching through plaintiff's property and effects
unless they observed evidence of a crime in plain view.
The Supreme Court warns
against using the "plain view" doctrine to eviscerate the warrant
clause:
The warrant requirement has been a valued part of our constitutional law for
decades, and it has determined the result in scores and scores of cases in courts
all over this country. It is not an inconvenience to be somehow "weighed"
against the claims of police efficiency. It is, or should be, an important working
part of our machinery of government, operating as a matter of course to check
the "well-intentioned but mistakenly over-zealous, executive officers"
who are a part of any system of law enforcement. If it is to be a true guide
to constitutional police action, rather than just a pious phrase, then "(t)he
exceptions cannot be enthroned into the rule." The confinement of the exceptions
to their appropriate scope was the function of Chimel v. California, [395 U.S.
752, 89 S.Ct. 2034, 23 L.Ed.2d 685 (1969)], where we dealt with the assumption
that a search "incident" to a lawful arrest may encompass all of the
premises where the arrest occurs, however spacious. The "plain view"
exception is intimately linked with the search-incident exception . . . . To
permit warrantless plain-view seizures without limit would be to undo much of
what was decided in Chimel. Coolidge v. New Hampshire, 403 U.S. 443, 481-82,
91 S.Ct. 2022, 2046 29 L.Ed.2d 564 (1971) (footnote omitted).
While not expressly mentioning the "plain view" doctrine, the trial court appears to have invoked it when writing "that the officers believed that there may have been some felony violations, particularly possibly pornography and, as testified by Sergeant Sanchez, of possible prostitution and liquor violations, and called experts of the vice Squad trained in pornography to come to the location and advise them of what they had found." AER 48. The record contains no facts whatsoever that would support a finding that the plain view doctrine justified the officers' remaining at plaintiff's studio after any consent was withdrawn and any exigency explored.
This trial occurred in 2002, not 1932. Adult possession and consumption of alcoholic beverages has not been a crime in California since the repeal of prohibition. There was a bar with liquor on the premises for guests of the show, as is common in Hollywood television studios. Private bars are similarly found in many homes, private businesses, and even law offices, for private entertainment. They are not against the law so long as minors are not drinking and beverages are not being sold. There were no minors present, and no officer testified that he or she saw evidence of liquor being sold, not even Sergeant Sanchez who made the decision to call in Vice. AER 59 (1 RT 16).
Similarly, "pornography" has not been criminal in Southern California for decades; photographs and moving pictures of consenting adults engaged in sexual activity can be found in adult bookstores in every major metropolitan area in the state, including Los Angeles, as well as in many private homes and offices. Such material frequently appears on cable television, can be ordered on pay-per-view, and is easily downloadable from any computer attached to the Internet.
Moreover, there was not even any evidence presented that the officers saw hardcore pornography at plaintiff's studio. The items in question, which the trial court labeled "possibly pornography," included erotic art and adult toys such as dildos. During a particularly surreal sequence during the trial, defense counsel asked plaintiff repeatedly about her dildo collection, including a large furry pink one that appears on the set of plaintiff's weekly cable television show and is sold openly in Los Angeles stores. Plaintiff was asked to describe this "giant," furry, pink, phallic pillow and its placement to the jury in detail, as if possession of it were some sort of felony. AER 136-137 (3A RT 120-21). As everyone knows, it is not.
This phallic pillow, like the other dildos, pillows and art objects in plain view in plaintiff's studio and gallery, are clearly not obscene by the community standards of contemporary Los Angeles. Judge Real and the officers certainly knew that, or should have known that, even if they personally oppose such materials. Some might call these items "pornographic," as Judge Real and Officer Montes did, but others would call them sex educational, humorous, artistic or entertaining. Just about everyone would call them harmless.
The evidence regarding alleged prostitution was particularly vacuous, and the trial court's raising the issue on this record suggests it may have entertained a substantial predisposition against plaintiff and her claims. There was absolutely no evidence of prostitution on the premises or in the record of these proceedings. The only people at the studio when the police arrived were staff members getting ready for a live broadcast and cable television taping. Later, after the search had begun, there were featured guests and a large, invited studio audience.
The only reference to anything which could have possibly constituted "prostitution" was Sergeant Sanchez' testimony that he thought he may have seen a "couple" in one of the rooms when he first arrived, though he never questioned or investigated them. AER 58 (1 RT 15). He did not testify that this "couple" was engaged in sex, much less in exchanging sex for money. Moreover, as the testimony of all of the other witnesses, including several other police officers, demonstrated, no one else saw the couple, suggesting that it was most likely the product of Sanchez' own sexual fantasy. In fact, according to all testimony at trial, there were no couples or individuals engaged in any kind of sexual activity when police arrived nor, indeed, throughout the evening, let alone any kind of illegal sexual activity. Thus, there was no evidence whatsoever of "possible prostitution."
Why the groundless allegation of prostitution? Plaintiff contends that Judge Real, as well as Sergeant Sanchez and other LAPD officers who decided to search her studio on February 26, 2000, were "sexually profiling" her. That is, just as some officers engage in "racial profiling," in plaintiff's case, she too has been profiled, assumed to be engaged in "possible prostitution" because she is a sex therapist, educator and host of a sexuality show. Some officers, like some people, erroneously believe that someone who is openly "sex-positive," as plaintiff is, must be doing something illegal. The fact is that plaintiff and her staff were doing nothing illegal, and there is not one shred of evidence in the trial record to the contrary.
There was no evidence of criminal activity and no obvious felonies being committed, thus absolutely nothing "in plain view" to make reasonable the prolonged stay of the original officers or the warrantless search by the Vice detectives. AER 128 (3A RT 110). In trial, even police officers admitted that they saw nothing "suspicious." AER 68 (2A RT 31). Intriguing as these items may be, there is nothing criminal about erotic art, nor provocative titles of videotapes, nor dildos, no matter how "giant." AER 136-137 (3A RT 120-21). Accordingly, the judgment should be reversed on this ground as well.
IV. THE TRIAL COURT ERRED IN REQUIRING PLAINTIFF TO DEMONSTRATE THAT THE OFFICERS ACTED WITH SPECIFIC INTENT, AND THAT SHE SUFFERED ACTUAL DAMAGES; REGARDLESS PLAINTIFF PROVED DAMAGES.
The trial court's judgment recites:
No evidence was introduced to support plaintiff's claims that any action of the Los Angeles Police officers was intentional and malicious and done for the purpose of causing plaintiff to suffer humiliation, mental anguish, and severe emotional and physical distress. As such, no reasonable jury would find, based on the plaintiff's evidence, that she suffered humiliation, mental anguish, severe emotional and physical distress nor that plaintiff has been injured in mind or made to feel intimidated, endangered and persecuted.
AER 48. There are numerous problems with this statement, which seems disconnected both from the facts of this case and the law which applies to them.
First, there was abundant evidence of intentional conduct on the part of the involved police officers. In fact, there is no evidence that the officer's entering plaintiff's studio, searching, holding plaintiff and others at gunpoint, and remaining for hours, was anything but intentional. And demonstrating that the officers were "malicious" is not an element of liability of plaintiff's claim, although it may relate to punitive damage liability. As this Court has explained:
It is well established that specific intent is not a prerequisite to liability under § 1983. Monroe v. Pape, 365 U.S. 167, 187, 81 S.Ct. 473, 484, 5 L.Ed.2d 492 (1961), overruled on other grounds, Monell v. New York City Dep't of Social Servs., 436 U.S. 658, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978); Allison v. Wilson, 434 F.2d 646, 647 (9th Cir.1970), cert. denied, 404 U.S. 863, 92 S.Ct. 43, 30 L.Ed.2d 107 (1971).
Nor is specific intent
required in order to establish a violation of the Fourth Amendment. Graham v.
Connor, 490 U.S. 386, 397-98, 109 S.Ct. 1865, 1872-73, 104 L.Ed.2d 443 (1989).
Rather, "the question is whether the officer['s] actions are 'objectively
reasonable' in light of the facts and circumstances confronting [her], without
regard to [her] underlying intent or motivation." Id. at 397, 109 S.Ct.
at 1872. To paraphrase Graham: "An officer's evil intentions will not make
a Fourth Amendment violation out of an objectively reasonable [arrest]; nor
will an officer's good intentions make an objectively unreasonable [arrest]
constitutional." Id.
Caballero v. City of Concord, 956 F.2d 204, 206 (9th Cir. 1992) (brackets in
original).
The trial court proceeds from its impression that the officers did not mean to harm plaintiff to its conclusion that the jury could not find that plaintiff suffered compensable harm. This is a logical non sequitur; people are frequently injured by others who mean them no harm. Regardless, actual injury is not an element of liability for Fourth Amendment violations under section 1983. George v. City of Long Beach, 973 F.2d 706 (9th Cir. 1992), cert. denied 507 U.S. 915, 113 S.Ct. 1269, 122 L.Ed.2d 664 (1993), holds that where the warrant clause is violated, at minimum an award of nominal damages in the plaintiff's favor is mandatory.
Regardless, there is more than ample evidence of injury in the record to withstand a Rule 50 motion. Although the judgment states that "Nobody was unlawfully imprisoned," plaintiff and members of her staff testified at trial that they were indeed "unlawfully imprisoned" in the sense that they were not free to move about without police officers following them with guns. AER 147 (3B RT 18). They were not free to leave. For some time, the officers kept plaintiff from going outside to see her staff, and they prevented her staff, including her husband, from coming inside to see her, despite plaintiff's distraught pleas. They were not free to start the show when it was scheduled to go on at 10:30 p.m. because armed officers refused to give them access to their Internet broadcast computers. They were not free to cancel the show, as they wished to do at 11:30 p.m., at which point armed officers insisted that they start the show. They were not free to deny officers permission to search the premises without the threat of great bodily harm or arrest.
Plaintiff and her witnesses stated many times during the trial that the show was disrupted and ruined. Plaintiff was frightened for her life when she was held at gunpoint, and she continues to live in fear of sudden, warrantless police invasion to this day. Plaintiff was humiliated by the presence of armed police in front of her guests and staff, and violated by their warrantless search. The reputations of plaintiff's show and business have been severely and irrevocably tarnished (although prevailing on this appeal so that a jury may deliberate on the facts of her case would help). The guests that were there and those who have since heard about the intrusion are now afraid to go to plaintiff's show or patronize her business as a sex therapist in private practice. Former staff members who enjoyed working for her before February 26, 2000, are now afraid to work for her. AER 105 (2C RT 38).
The trial court's judgment recites "Clearly, plaintiff did not want nor did she express a desire for anonymity, but sought full and complete exposure of herself and her guests…plaintiff is not a private individual, but conducts her affairs in the public eye, and as such, cannot claim under the facts of this case an invasion of privacy." AER 48. Obviously, plaintiff does not desire anonymity or she would not host a television show. But what does this have to do with armed police invading and conducting a warrantless search of her studio? Did this mean that anyone who is famous (or wants to be famous) deserves to have his or her premises raided and searched by armed police at any time without a warrant? If that were the law, half of the residents of Los Angeles would have no right to privacy. The officers' invasion of plaintiff's privacy on February 26, 2000 has - or should have - nothing to do with her desire for anonymity or fame.
It is this out-of-control policy and practice of intimidation on the part of the Los Angeles Police Department that has made the LAPD one of the most feared forces in the world as well as the laughing stock of truly professional police departments, and that so often terrorizes Los Angeles citizens into giving up their civil liberties. On the night of February 26, 2000, all of these wrongful practices, customs and procedures were in effect, and plaintiff paid the price. She is now entitled to a remedy.
CONCLUSION
For the foregoing reasons, the Court should reverse the trial court's order granting defendant judgment as a matter of law. The case should be remanded for a trial on the merits.
Dated: February 3, 2003
Respectfully submitted,
SUSAN M. BLOCK, PH.D.
By: Susan M. Block, Ph.D.
Plaintiff and Appellant in Propria Persona
STATEMENT OF RELATED CASES
Pursuant to Ninth Circuit Rule 28-2.6, plaintiff hereby certifies that she is aware of no related cases pending before this Court.
Dated: February 3, 2003
Respectfully submitted,
SUSAN M. BLOCK, Ph.D.
By: Susan M. Block, Ph.D.
Plaintiff and Appellant in Propria Persona
CERTIFICATE OF COMPLIANCE
Pursuant to Fed. R. App. P. 32(a)(7)(c), plaintiff-appellant in propria persona hereby certifies that this brief uses proportionately spaced type at 14 point, double spaced (except for footnotes), and the word count is 7,148.
Dated: February 3, 2003
Respectfully submitted,
SUSAN M. BLOCK, PH.D.
By: Susan M. Block, PH.D.
Plaintiff and Appellant in Propria Persona
PROOF OF SERVICE BY MAIL
I am a
resident of the county of Los Angeles. I am over the age of 18 and not a party
to the within action; my business address is 8306 Wilshire Boulevard, Suite
1047, Beverly Hills, California.
On February 3, 2003, I served the within Opening Brief of Plaintiff-Appellant
on the interested parties herein by placing two true copies thereof enclosed
in a sealed envelope with postage thereon fully prepaid in the United States
mail at Los Angeles, California addressed as follows:
Don W. Vincent, Esq.
LOS ANGELES CITY ATTORNEY
1700 City Hall East
200 North Main Street
Los Angeles, California 90012
I declare under penalty
of perjury that the above is true and correct.
Executed on February 3, 2003 at Los Angeles, California.
Kim Mendoza
Thank you for reading my brief. As you can see, parts of it refer to the transcripts and Excerpts of Record from the first case that Judge Real dismissed before the jury could deliberate on it. We had to pay over $2000 to the court reporters for the transcripts, and we will make copies of them available to those who really want them. We ask for a $250 donation per full copy of all the transcripts and Excerpts of Record.
If you are indigent and can't give a donation, but would still like to see the transcripts and Excerpts of Record, or if you are a journalist writing about cases like this or the usurpation of our First and Fourth Amendment Rights, please call Sabrina at 213.749.1330, and we will make a copy of the transcripts and Excerpts of Record available to you.
As you'll see if you read them, some parts of these transcripts are pretty exciting, others predictably boring as any courtroom proceeding. Others are really worthy of the name "The Dildo Dialogues," and others show me to be the naïve, utterly unprepared nonconsensual pro per that I was. It's a little embarrassing for me to share these transcripts with you, but it's important for all of us to see just how our legal system functions, or dysfunctions, when an American citizen seeks redress for the gross violation of our civil rights.
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