“Confirmed Judges, Confirmed Fears” is a blog series documenting the harmful impact of President Trump’s judges on Americans’ rights and liberties. It includes judges nominated in both his first and second terms.
What’s at stake in this case?
A domestic violence victim was threatened with arrest if she pursued her claims against her attacker.
What happened in this case?
Joy Ho Scherer was brutally beaten by Maxwell Bravo, who also attempted to rape her. Both the attacker and the victim were interviewed by Los Angeles police officers Nelson Martinez and Wessam Ismail. Bravo claimed that Scherer “threw the first blow” but declined to press any charges. Scherer had visible wounds, was “beaten, bloody, injured, and crying.” Scherer said she wanted to press charges against Bravo. Despite knowing that Bravo had already declined to press charges, Martinez told Scherer that if Bravo wanted to sue her, he wants to do so, “you will be going to jail too.”
In light of Martinez’s statement, Scherer decided not to press charges, although Bravo was later convicted of domesic violence. Subsequently she filed suit against the police officers, claiming they had violated her contitutinal rights by threatening her with jail if she pursued charges against Bravo. The officers asserted they were protected by qualified immunity. The trial judge disagreed, and the issue was appealed to the Ninth Circuit.
Trump judge Daniel Bress and Obama judge Stephen Higginson issued a 2-1 decision in May that reversed the court below and granted qualified immunity to the police. Obama judge Jacqueline Nguyen dissented in Scherer v Ismail.
What was the basis for the majority opinion?
Bress and Higginson maintained that Martinez was not threatening Scherer, but simply “advising both parties about their respective rights to press charges.” Based on the principle that police are entitled to immunity unless the unlawfulness of their conduct was “clearly established” at the time it occurred, they wrote that was simply not the case here and that immunity should be granted..
Why did Judge Nguyen dissent?
Judge Nguyen explained that the majority’s decision was “untethered” to the facts and the law. In a previous Ninth Circuit, she explained, the Court had already found that Martinez’s statements to Scherer “constituted a threat that violated her First Amendment right” to press “charges against her attacker.” Therefore, she reasoned the majority’s characterization in this case that Officer Martinez was merely “advising both parties about their respective rights to press charges …. cannot be squared with [the] prior decision.” And since there was ample precedent providing notice to the police officers “that public officials may not threaten retaliation for engaging in First Amendment activity,” there was no proper basis for qualified immunity.
Why is the decision harmful?
The ruling made possible by Trump judge Bress obviously prevents Joy Ho Scherer from recovering damages and receiving justice with respect to the improper behavior of the two police officers in the case. It also sets a bad precedent with respect to granting qualified immunity to police officers, especially in the Ninth Circuit, which includes California, Montana, Nevada, Oregon and Washington. The decision also illustrates the importance of our federal courts to health, welfare and justice and the significance of having fair-minded judges on the federal bench.