City Loses Again In Gypsy Search Case Federal Appeals Court Rules Qualified Immunity Defense Can’t Be Used In Suit Over 1986 Searches
The city of Spokane has lost another legal battle in its 10-year-old fight with a large Gypsy family that claims civil rights violations in police searches.
A federal appeals court ruled Monday that Spokane police officers aren’t entitled to use a qualified immunity defense in a $40 million civil rights lawsuit.
Such a defense would eliminate damages from individual officers involved in 1986 police searches at the Spokane homes of Gypsy leaders Grover and James Marks.
The 9th Circuit Court of Appeals says there is no evidence officers acted in good faith, which is the core of a qualified immunity defense.
The approval of search warrant documents by a deputy prosecutor and a judge did not entitle police to qualified immunity, the court ruled.
Police used the warrants to conduct personal searches of more than two dozen members of the Marks family who were at two homes. Many of those people were not targets of the criminal investigation.
“A warrant to search ‘all persons present’ for evidence of crime may be obtained only when there is reason to believe that all those present will be participants in the suspected criminal activity,” the appeals court said. “That was not the case.”
The latest court ruling also orders the city to pay the Marks’ family legal bills, not yet calculated, associated with the appeals issues.
The Washington Supreme Court previously ruled the 1986 searches were illegal and involved outrageous police conduct.
The searches occurred as part of a police investigation into stolen property that was allegedly sold to a police informer.
The federal appeals court ruling comes almost three years after the civil rights trial was transferred to U.S. District Court Judge Alan McDonald in Yakima.
When McDonald ruled in early 1994 that the city couldn’t rely on a qualified immunity defense, Assistant City Attorney Rocco Treppiedi sought and was granted a delay.
The civil rights trial was postponed while the city appealed McDonald’s ruling to the federal appeals court in San Francisco.
With the latest ruling, these possibilities exist:
The city could ask the appeals court to reconsider, which is rarely granted, or ask for a review of the three-judge panel’s decision by the full court.
If those moves are unsuccessful, the city could then seek review by the U.S. Supreme Court.
Judge McDonald, who originally set the civil rights damages trial for March 1994, could now set a new trial date, likely early next year.
The City Council could initiate negotiations leading to an out-of-court settlement of the case.
Treppiedi was on vacation Monday and not available for comment. “Without having read the decision, I can’t comment,” said City Attorney Jim Sloane.
Private attorney Gregg Smith, one of a team of lawyers representing the Marks family, said the ruling doesn’t mean there will now be a quick resolution of the civil rights suit.
“This is one of the more significant victories for us,” Smith said, “but, regardless, the city has persisted in its tenacious defense, and I expect there will be further appeals.”
“That’s a miscarriage of justice to the people involved, both for the city and the Marks family,” Smith said.
Originally, the county also was a defendant in the suit, but legally bowed out after agreeing to pay the city $390,000. The city and its taxpayers are now 100 percent liable for damages, if they are ordered by a federal jury.
“This has gone on long enough, but it’s like the city still doesn’t care,” plaintiff Robert Marks said of the latest ruling.
James Marks, who calls himself a Gypsy senator, predicted the city will appeal the latest ruling.
“They’ll appeal because that’s all they’ve done,” he said in predicting the city’s response.
“They still haven’t come to their senses yet down at City Hall. But to us, it’s a beautiful Christmas present - one we want everyone to see and talk about.”
, DataTimes