Federal Court Judge Morris England denied Defendants’ Motion for Partial Summary Judgment in the portion of the Buzayan family’s lawsuit that aims at the conduct of Davis Police Officers Pheng Ly and Ben Hartz.
The lawsuit stems from an incident that occurred on June 7, 2005, when Davis Police Officer Pheng Ly was dispatched to the home of Adrienne Wonhof-Gustafson to investigate claims that her Mazda had sustained damage resulting from a hit-and-run collision. Officer Ly made the determination that the Buzayan family was responsible, and the family paid for the damages. However, six days later, Officer Ly would arrest their then-16-year-old daughter on misdemeanor charges of hit-and-run.
Attorney Whitney Leigh told the Vanguard yesterday evening, that depositions would be completed some time in June of this year. Arguments are due in October. And the trial is scheduled to begin in April 2011, nearly six years after the original incident.
During the course of the controversy that extended into 2006, community members rallied behind the 16-year-old’s case as evidence of a miscarriage of justice. In April 2006, the misdemeanor case was dismissed in Yolo County Superior Court by Judge Thomas Warriner. Later that same month, the Yolo County District Attorney took the unusual step of releasing the tapes of the case, despite the fact that it involved a juvenile, to the Davis Enterprise.
The Davis Enterprise on April 28, 2006 ran a lengthy story about the tapes and then followed it with a pointed editorial in which the Enterprise’s editor Debbie Davis described the officer as “doing his job, and doing it well.”
The Federal Court Judge now nearly four years later describes the officers’ actions in a very different light. In a 19 page opinion, he not only denies summary judgment but he calls into severe question the nature of Officer Ly’s investigation and his conduct.
Summary judgment, as we explained earlier in the week is that a very high standard to reach because it requires that there be no material fact in dispute. That was clearly not the case here as Federal Court Judge England explains in considerable detail. However, the Judge goes far beyond simply slapping down the motion, he calls into serious question the very conduct of the Officers.
Denial of Ruling That Officers Had Probable Cause To Arrest Ms. Buzayan
“because probable cause existed for Halema’s arrest, her rights under the Fourth Amendment for freedom from unreasonable seizures cannot have been violated. Even in the absence of a search warrant, an officer may still validly arrest a suspect if the officer has probable cause to believe the person committed a crime.”
Judge England quickly concludes that the court sees no reason to make “a determination of probable cause as a matter of law, on summary judgment.”
He explains that it was
“uncontroverted that the alleged eyewitness, Marc Rowe, did not in fact observe actual contact between the Highlander and Mr. Wonhof-Gustafson’s Mazda. That failure made it all the more necessary to carefully examine the damage sustained between the two vehicles before drawing any conclusion that the Highlander had in fact collided with the Mazda.”
Moreover, the Plaintiffs in this case, the Buzayans and their attorneys have introduced a report by Consulting Mechanical Engineer Albert Ferrari that the found inconsistencies in the damage to the two vehicles.
“He concluded that the damage to the Toyota did not match damage sustained by the Mazda, opining that the areas of bumper and right front damage to each vehicle are inconsistent both with respect to “location, elevation, severity, size, shape and transferred paint.””
Writes Judge England:
“Given these opinions, the reasonableness of Officer Ly’s opinion that a collision had taken place between the two vehicles is brought into question, particularly given the fact that the witness had not seen any actual contact between the Mazda and Toyota.”
He also questions the nature of the photo lineup presented to the two witnesses.
“Plaintiffs point to defects in the composition of the lineup given the sharp contrast between Halema’s smiling demeanor and the demeanor of the other included individuals. Moreover, even given that discrepancy, Plaintiffs correctly point out that only one of the two witnesses who observed the driver of the Highlander in the Safeway parking lot (Marc Rowe) were able to affirmatively identify Halema Buzayan as the driver.”
Evidence of Discrimination Based on Race, Ethnicity, or Religion
Writes Judge England:
“According to Ms. Wonhof-Gustafson, Officer Ly went out of his way to describe Halema’s mother’s use of a traditional Muslim dress that “covered her face.” Wonhof-Gustafson Decl., ¶ 5. This description is at odds with other evidence suggesting that Ms. Darrat was simply wearing a headscarf, as opposed to something covering her head entirely.”
He continues:
“Although Ly may have been trying to distinguish Ms. Darrat’s apparel from that of her daughter, who was not wearing a headscarf at the time of his interview, and from the individual observed by Marc Rowe and Carly Collins, who was also not reported as having her head covered, there is evidence suggesting that Ly went on to make certain assumptions about the use of a headscarf during his handling of this matter. When he was questioning Halema at the police station following her arrest, he opined that Ms. Darrat could not have been the driver because the individual identified by the witnesses was not wearing a headscarf and wearing blue jeans, something that Ms. Darrat, as a “very traditional person”, would not have done.”
He concludes:
“Here, Officer Ly’s assumptions about Muslim dress may similarly be evidence of bias, particularly when viewed in conjunction with other apparent irregularities surrounding Halema’s arrest.”
More pointedly, he writes:
“Additionally, as discussed above, despite the fact that no witness observed any actual contact between the two vehicles, there is no evidence that Officer Ly performed any analysis after taking pictures of the two vehicles the evening of the incident and before deciding to arrest Halema some six days later.”
He goes on to say that the decision appears imprudent:
“Albert Ferrari’s opinion that the damage sustained by the two vehicles was highly inconsistent with a collision, as discussed above, makes that decision appear imprudent.”
The testimony of Ms. Wonhof-Gustafson appears crucial as she reports Officer Ly seemed “overly zealous” to press charges against Ms. Buzayan, even in response to Wonhof-Gustafson’s desire not do so so if she was reimbursed.” England writes that Officer Ly failed to note this preference in the police report nor did he check back with her to see if reimbursement had been made prior to deciding to effectuate the arrest “despite her confirmation that full reimbursement was received within three days of the incident.”
In a footnote, Judge England writes that he found it “troubling” that “while Officer Ly told the Buzayans that Marc Rowe had seen an actual collision” however, “he later admitted at deposition that Mr. Rowe had not made any such representation.” In other words, the Judge is saying that Officer Ly misrepresented the case to the Buzayans.
Judge England does not stop there. He then points to evidence that the Yolo County District Attorney’s Office, “does not normally pursue charges for hit-and-run misdemeanors where the alleged victim has been compensated and does not wish to pursue charges.” This apparently Former Yolo County District Attorney David Henderson acknowledged in deposition.
Furthermore he continues to admonish Officer Ly about the timing and manner of Halema Buzayan’s arrest.
“Officer Ly waited six days after apparently performing no investigation in the meantime, and then arrested sixteen-year old Halema at approximately 9:30 p.m., apparently after she had gone to bed. He refused to let her change out of her pajamas before taking her to the police station for booking. Decl. of Jamal Buzayan, ¶¶ 15-16. Additionally, although California Penal Code § 844 requires that a police officer seeking admission into a private home to explain the purpose for which admittance is desired, Ly told Halema’s father only that he wanted to “talk” with her, despite the fact that he had already decided to make an arrest.”
Judge England thus concludes:
“Taken together, the series of events outlined above may support an inference of discrimination. This is enough to defeat summary judgment.”
Denial of Qualified Immunity
Qualified immunity means that if their actions fall in the normal course of their duties, they are not held personally liable for their conduct as government officials unless there are specific reasons that would preclude that. Judge England here is ruling that they are not entitled to such immunity.
“Defendants Ly and Hartz argue that even if probable cause was lacking, they are still entitled to qualified immunity as to the Fourth Amendment seizure claim, “because any reasonable officer viewing the same facts and circumstances could have reached the same decision to arrest [Halema].””
He continues:
“Government officials like Defendants Ly and Hartz are entitled to qualified immunity from civil damages unless their conduct violates “clearly established statutory or constitutional rights of which a reasonable person would have known.”
However, according to Judge England, the facts of this case preclude such a ruling in favor of the defendants.
“The facts here do not permit the Court to resolve these inquiries in favor of Defendants. As discussed above, Officer Ly made the decision to arrest Halema without a witness who even observed a collision, and in reliance on damage comparison between the vehicles that Defendants’ expert later found to be patently mismatched.”
He concludes:
“Moreover, Defendants made the arrest in the face of evidence suggesting that misdemeanor hit-and-run incidents where reimbursement has been made are not ordinarily prosecuted, despite the wishes of the alleged victim who did not wish to pursue charges given her reimbursement for all damages, and in a manner which may not have complied with California law as set forth in Welfare and Institutions Code § 844. Given all those circumstances, the Court concludes that qualified immunity is inappropriate.”
Summary and Conclusion
Nevertheless, Judge England here paints a picture of a case that is very different from the picture the Davis Enterprise, the Yolo County District Attorney’s Office, and the Davis Police Department (headed up by former Police Chief Jim Hyde at the time) attempted to paint in April and May of 2006.
As we reported above, this case will finally go to trial in April of 2011, long after the controversies that this case originally caused will have dissipated. Nevertheless, the adjudication of this case will bring forth a finding of fact and hopefully put this matter to a rest.
In recent weeks and months, it seems that there are officials claiming that this case is a slam dunk for the city of Davis and the Police Department, but it is strongly recommended that that view be revised in light of the opinion that emerges in this case. We have read a number of summary judgment denials in the past week alone, most are very brief and nondescript. The Gang Injunction ruling was two pages in length and very vague in details. This one goes to great length to demonstrate a pattern of irregularities and troubling findings to use the Judge’s words.
The Vanguard will continue to monitor this case in the coming months and bring the latest news that emerges from it as depositions continue.
—David M. Greenwald reporting
Wow! Judge England put a dent in my cynicism.
What a waste of expensive court time. What material damage have the Buzayans suffered coming close to the legal fees they are accumulating? Honestly, I can’t come close to understanding their continued motivation for pursuing this matter even given their most favorable interpretation of events. Is this prosecution funded by the corrupt ACLU or some other law enforcement-hating group? That might explain why it continues.
I disagree and I hope the Buzayans win. This was an example of sloppy police work and a very inadequate review process. The only way to change that behavior is to sue. The police and the DA might have provided a simple apology and perhaps the case would have ended. The failure to do that is going to cost Davis and Yolo County.
The only way to change that behavior is to sue.
Explain to me what terrible damages have been suffered by the Buzayans. At worst, we have a case of less than perfect judgment from a police officer. Why does that justify continued reporting and expensive use of the court system? Sometimes people make mistakes in judgment and other people have bad luck being inconvenienced by them. Get over it and move on.
It seems the only reason someone would advocate for this case is some deep seated anger or hatred for the police. That being the case, maybe some personal counseling should be considered as a better remedy.
“Explain to me what terrible damages have been suffered by the Buzayans.”
If it was an unlawful arrest and poor police work, then they suffered from nine months of anguish and stress stemming from the charges against their daughter, plus their rather sizable legal expenses.
If they were singled out or otherwise dicriminated because of race or ethnicity, add in whatever damages you think are warranted there.
If young Halema Buzayan’s civil rights, miranda rights, and due process were violated in the form of the arrest, the interrogation, the threats and intimidation, then add more there.
I’m not sure what more you would have liked them to have suffered.
I don’t have any hatred for the police, but I do have concern about the way that incident was handled and do not believe there has ever been a public accounting for it.
Unfortunately at this point, we are looking a some sort of resolution six years after the incident, that’s a problem with the system, not the fault of the family.
“Sometimes people make mistakes in judgment and other people have bad luck being inconvenienced by them. Get over it and move on.”
I disagree, especially when it is the government or a person operating under color of authority. I would argue that when a mistake under color of authority does occur it is extremely dangerous to as you suggest, get over it. Never time it means it might not be a mistake.
Also I would suggest that if a mistake was made, it has never been acknowledged and there has never been an apology given. I wonder if even now if an apology would help rectify things.
I would argue that when a mistake under color of authority does occur it is extremely dangerous to as you suggest, get over it.
Interesting on this… you – the left-progressive, and me – the right-libertarian – can agree on keeping checks on government intrusion on an individual or family’s civil liberties. I think the difference is our assessment of what is reasonable. I believe we all have to accept minor, well-intentioned mistakes as one of the costs of the freedom and liberty provided us by law enforcement. There are two extremes: anarchy and police state. In the US, I see the slippery slope being much nearer to anarchy than police state (Think East LA after the Rodey King police aquital). Also, I don’t buy all the hyper sensitivity toward racism. There are those that hold the worldview that will always paint law enforcement as too race-motivated. I, however, see little justification for continuing to push this rock up the hill given the particulars of the job police have to do. Suspicion is necessary for cops to do their job, and sometimes they get it wrong. We need to accept it.
“I think the difference is our assessment of what is reasonable. I believe we all have to accept minor, well-intentioned mistakes as one of the costs of the freedom and liberty provided us by law enforcement.”
I also have to quibble with you on what’s minor. I don’t consider poor police work, an illegal arrest, and violation of miranda rights to be minor.
“Also, I don’t buy all the hyper sensitivity toward racism”
Are you aware of the history of this country, and police/ law enforcement were often on the front lines for it.
“There are those that hold the worldview that will always paint law enforcement as too race-motivated.”
I don’t ascribe everything to racism, but I do think there are times when police look at race of an individual and treat that individual differently on the basis of race. To bring in the other incident, I don’t think the police stop a white man doing the exact same thing that Gutierrez was doing at 2 pm in the afternoon.
“Suspicion is necessary for cops to do their job, and sometimes they get it wrong. We need to accept it. “
But why is suspicion automatically based on the color of someone’s skin.
I don’t think the police stop a white man doing the exact same thing that Gutierrez was doing at 2 pm in the afternoon.
Having relatives in law enforcement, I will concede that I hear there is sometimes gravitation toward a greater percent suspicion of criminality toward some racial groups. However, you can dress a white or Asian guy in Ghetto clothing or skinhead garb and he will generally create a commensurate level of suspicion. I have a neighbor who walks the neighborhood at night after his kids go to sleep wearing dark sweat pants, black shoes and a hooded sweat shirt over his head. He looks like he would break in to your house and steal your jewelry. He is a white European dude with a semi-thick accent. I was thinking that the cops might stop him at some point because he looks the part.
Do we require police officers to disregard their experience and sense for lawlessness and danger just to promote societal multi- culturalism and racial group acceptance, or to counter racial stereotyping? You can do the math and recognize that the police actions are generally a reflection of social norms. Law enforcement lives and jobs are at risk every day for not keeping safe the community that they serve. They are not employed as knitters of racial harmony in the community. The job is very difficult because it directly and routinely interfaces the worst face of the public in the most stressful and difficult situations. Certainly they must obey the law and protocol, but you and other, I think, are too picky in your expectations.
I know there are some cops that over-reach using their authority. I support watchdog groups for this reason. However, I don’t support harassment of law enforcement for reasonable mistakes in judgment that result in no material harm. It is our civic duty to accept the fact that all of our safety comes at a price of some potential inconvenience. I agree that it is not fair that a law-abiding citizen of darker skin tones may face greater scrutiny. Racism should be ratted out and racist cops should be fired. However, too much projection of this on cops is a form of blue racism. I say save our outrage for deserving situations.
Jeff:
The problem is that Gutierrez was wearing a white shirt and shorts.
So now you have Sgt. Johnson making this statement:
“Sgt. Johnson stated that he is aware that Hispanic gang members will often not openly wear their gang colors. Instead, the gang member will wear generic colors to disguise their particular affiliation.”
So basically he was stopped because of ethnicity, not clothing.
“Do we require police officers to disregard their experience and sense for lawlessness and danger just to promote societal multi- culturalism and racial group acceptance, or to counter racial stereotyping?”
I would prefer that police officers go after people committing crimes, rather than profiling what they think criminals look like.
“However, I don’t support harassment of law enforcement for reasonable mistakes in judgment that result in no material harm. “
I don’t either, but I think we still disagree on what constitutes a reasonable mistake and what constitutes material harm. I would argue in the Buzayan case the mistakes were not reasonable and the harm was very material both from monetary and other perspective.
So basically he was stopped because of ethnicity
David: I think it is much more complex than that. Were was he walking? What was his body language? Did the cops think they recognized him? Again, it is a slipperly slope second guessing all of this. As laypeople we don’t get the training nor do we have the same experience on the job. Cops know things we cannot.
I think we differ on the justification for a stop. My issue is the appropriate use of deadly force.
I would argue in the Buzayan case the mistakes were not reasonable and the harm was very material both from monetary and other perspective.
I think we will have to agree to disagree on that one. I don’t know what monetary damages occured other than the self-inflicted legal costs for the Buzayans to prusue their case against the city.
When I was in my twenties driving through town at 3:00 AM on the way home from swing shift work in Sacramento (I was dropping off a gig tape on the front door of my bass player… I lived in Dixon). I was pulled over under false pretenses of running a red light (I did not) I assumed because I was suspected of driving after leaving a party. I was polite and curtious and thanked the officer for keeping the roads safe and he thanked me and sent me on my way (with a warning of course). You could say I was stereotyped as a 20-something, partying and drunk-driving college kid.
He was walking down gum avenue at 2 in the afternoon. Don’t know his body language. The cops claimed they thought they recognized him, but they likely didn’t as there was no record of an encounter. There is a slippery slope, but the cops can always claim they thought they recognized someone, that can justify any stop. You are correct the final issue is the appropriate use of deadly force here, but how the conflict was precipitated is crucial to understand that use of force.
“I don’t know what monetary damages occured other than the self-inflicted legal costs for the Buzayans to prusue their case against the city.”
I fail to understand why monetary damages are the only form of damages, but there was the considerable cost for defense against the misdemeanor, that was not a non-trivial amount and probably would have precluded other people from even contesting the charges despite enough evidence that no crime had occurred to dismiss the charges.
I’m unsure of the point of your anecdote. I recently took some interns, one of them is an African-American student from UCD. I casually upon interviewing him asked him if he was ever racially profiled in Davis and he told me all the time to the point where he doesn’t even like to go out driving at night. This guy is one of the nicest guys in the world and probably for him it’s just a big nuisance to get pulled over all the time, asked where he is from and whether he goes to UC Davis, and then be sent on his way with no citation. I wonder at what point you might not be having the best of days and you snap and be a little less polite and end up with a world of trouble. More to the point, why should anyone have to put up with that?
I fail to understand why monetary damages are the only form of damages, but there was the considerable cost for defense against the misdemeanor
Please help me understand what damages other than monetary were suffered by the Buzayans. As far as the cost of their defense, I fault the DA for that. Bad things happen to good people, but the DA should use expert discretion deciding what cases to pursue or drop.
I’m unsure of the point of your anecdote.
Cops generally stereotype because of suspicion, not because of race. Is there generally more suspicion directed at some groups more than others? I think it would depend on the circumstances. However, take two groups of young males hanging out; one group comprised of white males in ghetto garb, and the other black males in ghetto garb. Assuming the cops check their suspicions with each group, which group members would consider the visit by the cops to be racially-motivated?
Racial stereotyping certainly happens as a byproduct of suspicion, but claims of this are exaggerated by heightened racial sensitivity.
I partly agree that the DA was at fault for charging the case, but I also fault the officer for doing a poor job of investigating the case. So I think there is shared blame here. Remember the DA is a party to this, though this report focused on the Police’s motion for summary judgment.
I consider an illegal arrest to be damaging, I consider the amount of needless stress and anguish and anxiety to be damages, I consider the impact not just on the family but the community for this ordeal to be damaging, I consider it alarming the violation of miranda rights, and that too is damaging. All of these things I would consider damages resulting from the decision by a police officer to arrest a minor in the middle of the night, without performing the proper investigation or following the proper procedures and I do not consider this a mere mistake by the officer, nor do I consider this merely a matter that we can chalk up to, bad things happen to good people.
On your other comment, I think the police will at times use race as a basis for stereotype. one of the key points that I hear is the repeated nature of such visits. I remember that for months I had driven an older model car and had neglected to put on the renewal sticker and yet I was never pulled over. How can that be when I know African American students driving better cars than I did, who are routinely pulled over?
“Racial stereotyping certainly happens as a byproduct of suspicion, but claims of this are exaggerated by heightened racial sensitivity.”
I think history matters, but I also think when it happens over and over again, people believe they are being racially profiled. In the last five years, I have been pulled over by the police once, I had my rear brake light out, racial minorities I know are pulled over all the time.
I have been pulled over by the police once
David: are you kidding? Chief Black has a picture of your car posted on the police station walls warning all patrol officers to not upset you.
David: That was my poor attempt at some humor. From what I hear Chief Black thinks you are a good guy. However, I bet some of the officers do worry about being a topic of your next post. I suppose that is a good thing, although I still consider the claims of cop racism to be overblown and another type of damaging bias. Maybe it is also a good thing that there are people checking the people that check the cops.