Cunningham v. Gates

Incident Summary & Facts

The consolidated cases arise from operations of the LAPD’s Special Investigation Section (SIS), a unit formed to interdict and apprehend armed, violent career criminals. On June 26, 1995, SIS officers watched robbery suspects Robert Cunningham and Daniel Soly for several hours, followed them to a liquor and deli store in Newbury Park, and allowed them to rob it even though the officers had probable cause and the ability to arrest them beforehand. After the pair got into their getaway car, officers used police cars to “jam” (box in) the vehicle in a confined space. According to the plaintiffs, officers then opened fire without announcing themselves, with roughly eighteen shotgun blasts and handgun shots; Soly was killed and Cunningham was permanently disabled. The officers said the suspects fired first. A state jury later convicted Cunningham of attempting to murder SIS officers, of Soly’s murder by provoking the officers’ gunfire, and of robbery and burglary.

On February 25, 1997, SIS officers watched robbery suspect Michael Smith and others commit a bar robbery. After gunfire at the suspects’ car, one armed suspect fled on foot. Detectives searching the area saw plaintiff Grover Smith, who was unrelated and wrongly believed police were after him on outstanding warrants. Grover Smith ran, yelling “They’re coming for us.” Someone yelled “Freeze,” and he was shot in the leg. Officers said he moved his hand toward his waistband as if reaching for a gun; Smith denied making any threatening movement.

The plaintiffs alleged a department-wide “course of unlawful conduct”: letting robberies happen, jamming suspects to provoke force, shooting, and covering up through fabrication, perjury, and a tolerated “code of silence.” They also challenged the City’s indemnification of officers against punitive damages. The district court denied qualified immunity to nearly all defendants, and the defendants brought an interlocutory appeal.

Core Legal Issue

Whether, under the qualified immunity analysis of Harlow and Anderson v. Creighton, each individual City defendant (shooting officers, non-shooting officers, supervisors, commissioners, council members, and city attorneys) was entitled to summary judgment, judged by that defendant’s own conduct and the law clearly established at the time.

The Holding

The court affirmed the denial of summary judgment for the shooting officers, police commissioners, and supervisors (except Captain Koenig), because factual disputes barred review. It reversed the denial for the non-shooting officers, the council members, the City attorneys, and Captain Koenig, and it found that the plaintiffs lacked standing to seek injunctive relief.

The Court’s Analysis:

• Individualized analysis required: The district court erred by relying on an alleged department-wide scheme. Qualified immunity requires examining “the specific factual allegations against each individual defendant.”
• Shooting officers (Graham): Disputes over whether the officers had probable cause to use deadly force against Cunningham and Soly, and over whether Smith reached toward his waistband, were material. A jury could find Smith was shot “without reason to believe that he was reaching for his gun.”
• No right to an early arrest: Relying on Hoffa, the court held that “There is no constitutional right to be arrested,” so letting the robbery proceed stated no violation. The duty to intercede applies only when an officer has a “realistic opportunity” to do so, and the non-shooting officers had none.
• Jamming: The technique had been used “hundreds of times without incident.” Judged from the “perspective of a reasonable officer on the scene” facing “armed individuals in the midst of committing a dangerous felony,” it was not clearly established as unreasonable. The court cautioned that it was not endorsing tactics that “needlessly or unreasonably create[] a dangerous situation” and that jamming is not per se reasonable.
• Testimony, fabrication, indemnification: Witnesses have absolute immunity for testimony and for conspiracy to commit perjury, and there was “not an iota of evidence” that the officers fabricated evidence. Under Trevino v. Gates, case-by-case, good-faith indemnification was not clearly unconstitutional, and Koenig could not be liable for events that occurred before he became a supervisor.