SAN FRANCISCO (CN) – A Ninth Circuit panel indicated Tuesday that three California police officers may have to stand trial over claims they endangered a woman's life by failing to arrest her abusive boyfriend because he and his father were fellow police officers.
The three-judge panel considered whether Clovis Police Department officers’ failure to arrest Kyle Pennington despite his girlfriend Desiree Martinez's visible injuries violated Martinez's constitutional due process rights by increasing the level of danger she faced from Pennington following a June 3, 2013 call to 911.
According to Martinez’s attorney, Kevin Little, Pennington retaliated for the police call by beating, raping and sodomizing Martinez after the officers left their home in nearby Sanger, California. In an appellate brief, Little wrote that Pennington "may have committed an offense that day as serious as attempted murder."
If the court finds that the officers violated Martinez's due process rights, they would lose their qualified immunity, which shields government employees from being sued for discretionary actions performed on the job.
The Ninth Circuit's decision hinges on whether the officers committed a constitutional violation, as Martinez argues, or whether they were simply guilty of "poor policing," as the officers' attorney Diana Field contended Tuesday.
"However bad the policing was, there was no constitutional right involved," said Field, who is with Ferguson Praet & Sherman in Santa Ana. "Decision to arrest is a discretionary act in California."
The assertion drew a strong rebuke from U.S. Circuit Judge Michelle Friedland, an Obama appointee.
"At least [Officer Angela] Yambupah thinks there is probable cause to arrest, and if [Sgt. Fred] Sanders says, 'No, because he's a police officer, we like his family, he's good people, so we're never arresting him' - which seems like what is basically communicated at that moment - why isn't that making things worse off for the victim?" Friedland shot back, referring to the June 2013 emergency call. "Because now her assailant has been told, 'Do whatever you want to her.'"
Martinez sued the city of Clovis, its police officers, and Pennington and his parents in Fresno federal court in May 2015. Martinez claimed she had visible injuries consistent with abuse - sustained while Pennington choked, beat, dragged and suffocated her - for attempting to call police on June 3.
Upon arrival at the Pennington house, Martinez says Sgt. Fred Sanders ordered Officer Angela Yambupah not to arrest Pennington – even though she had already initiated arrest, believing Martinez’s injuries constituted probable cause.
Sanders aborted the arrest because Pennington was a fellow Clovis police officer, who at the time was on suspension from the department over domestic-violence allegations involving another woman, Martinez claims.
Sanders' parting words to Martinez were that "the Penningtons were 'good people,' that Kyle was an officer, and his father was a Sanger police officer," according to Martinez's appellate brief.
Later that day, Martinez says her boyfriend's parents coerced her into recanting her abuse allegations and forced her to give police a false statement explaining away her injuries.
"If the officers showed up and it was clear they had a basis to arrest, it was probable cause and it looked like the victim had been beaten up and they basically say, 'You're good people because you're a police officer, we're not arresting you, you can keep doing this,' and leave, is that not unconstitutional?" Friedland pressed on Tuesday.
But a ruling for Martinez wasn’t a done deal by close of arguments.
U.S. District Judge Robert Lasnik said failure to arrest isn't sufficient for finding a constitutional violation. Sitting by designation from the Western District of Washington, Lasnik also noted vague guidance from the U.S. Supreme Court on whether the Ninth Circuit can consider its own decisions regarding the issue of state-created danger in domestic violence cases, and a circuit split on the issue between the Second and Seventh circuits.
"I don't know Okin was clearly decided," he said, referring to Okin v. Village of Cornwall, the Second Circuit decision regarding state-created danger in domestic violence cases Little urged the panel to use to review the appeal.
"So if I feel that way, that it's not 'clearly established,' why would the police officers know that?" Lasnik asked.
Friedland steered the discussion back to deliberate indifference, asking whether Yambupah "made matters worse off than if she never showed up at all."
Little said she had. "As officer Yambupah said based on her training, when a victim reaches out to law enforcement, that danger to her is greater than at any other time," he said. "The record shows that when they went back inside, Ms. Martinez was beaten, she was raped, she was sodomized, and then after all of that horror, Mr. Pennington's family comes over and try to coerce her into giving a false statement to the officers."
Senior U.S. Circuit Judge J. Clifford Wallace, a Nixon appointee, expressed doubt over whether Sanders was deliberately indifferent toward Martinez that June day.
"He wasn't deliberately indifferent, was he? He did something you felt was incorrect, but is that deliberate indifference?" he asked.
Little argued that Sanders' decision to abort the arrest because of his relationship with the Pennington family "effectively gave Mr. Pennington and his family 24 hours to work with to clean this situation up."
"This court," Little said, "has defined 'deliberate indifference' in the substantive due process context as a knowing and obvious risk of harm to the person and acting intentionally in disregard for that risk, and I think that's precisely what Sgt. Sanders did."
The panel did not indicate when it will rule.
In 2017, the World Health Organization estimated that male intimate partners committed up to 38 percent of murders of women worldwide. Meanwhile, 30 percent of women worldwide reported having experienced physical or sexual violence by an intimate partner. Last November, a report issued by the United Nations Office on Drugs and Crime found that about 87,000 women were killed worldwide in 2017, 58 percent of them at the hands of an intimate partner or family member.
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