Every once in a while, I stumble across a case that has what I believe to be a fascinating fact pattern, but they usually do not fall within the realm of firearm laws. And when they do, they usually do not land in favor of the firearm owner. Today, however, I found the case of Murchison v. Cnty. of Tehama, 69 Cal. App. 5th 867, 284 Cal. Rptr. 3d 742 (2021). It is a few years old, but still very relevant, perhaps even more so now that we are in the post-New York State Rifle & Pistol Assn., Inc. v. Bruen world.
In Murchison, the Plaintiff brought an action against a Sheriff, Deputy Sheriff, and a Sergeant of the Tehama County Sheriff’s Department, as well as Tehama County for their actions in confronting Plaintiff while he was on his rural property in an effort to secure a rifle they had spotted. Plaintiff allegations included federal law claims of unlawful search and excessive force, and state law claims of battery by a peace officer, assault, and interference with his constitutional rights by threat, intimidation, or coercion. At the trial court level, the Defendants successfully moved for summary judgment, but on appeal, the Third Circuit Court of Appeal for the State of California reversed in part.
FACTS OF THE CASE
- Plaintiff’s Property:
- Plaintiff, who was almost 66 years old at the time of this incident, lived at the end of Joint Road in Red Bluff, California. The maintained section of Joint Road, which was a public highway, ended where it passed plaintiff’s house.
- The county posted a sign reading “Road Closed” at that point, and Plaintiff strung a rope across the road to prevent people from driving onto the closed portion of Joint Road.
- Third-Party Claim of a Firearm
- A real estate agent and his client moved Plaintiff’s rope to drive past the Road Closed sign to look for property.
- Plaintiff told them the road was closed. The client told the agent he thought Plaintiff had a handgun in his pocket.
- The agent called the Department to discuss the incident and to confirm that he had a legal right to use the road. The agent did not specifically recall telling anyone at the Department what the client had told him about the handgun, but he said he may have done so.
- Preparation by Defendants:
- The Sheriff shared with the Sergeant his belief that Plaintiff was a convicted felon who was prohibited from owning firearms, and he directed the Sergeant to investigate. The Sergeant and Deputy Sheriff researched Plaintiff’s criminal record using a database maintained by the California Department of Justice and discovered that Plaintiff was a convicted felon, which they believed precluded him from owning, possessing, or controlling firearms.
- Based on his research, it also appeared to the Deputy that Joint Road was a public roadway and not Plaintiff’s private property.
- The Sergeant did not interview the real estate agent or his client; the client later explained that he had “seen something” in Plaintiff’s hand, “possibly a gun,” but that it “could be anything.”
- The client acknowledged he was at least 100 feet away, had bad eyesight, and just assumed that “for somebody to live somewhere in the country, they have to have a gun.”
- The Sergeant and Deputy did not obtain a warrant to search Plaintiff’s property.
- The Sergeant acknowledged they did not have probable cause to secure a warrant at that time.
- Defendants’ Initial Actions:
- The Sergeant and Deputy drove an unmarked sports utility vehicle (SUV) to Joint Road near Plaintiff’s property.
- They dressed in plain clothes in order to conceal their identity as law enforcement officers.
- They intended to provoke Plaintiff into brandishing a firearm.
- The Deputy walked toward the Road Closed sign.
- Plaintiff walked out onto his deck from inside his house, and he told the Sergeant and Deputy that the road was closed and they would be trespassing if they proceeded.
- The Deputy returned to the SUV, and Plaintiff went back inside his house.
- The Deputy then walked to the rope, stepped over it, and continued onto the closed section of Joint Road.
- The Sergeant and Deputy observed a chronograph on the north side of Plaintiff’s property, which they were aware can be used to measure bullet speed.
- [NOTE: It is possible that the Defendants could have left at that time and attempted to use the allegation that Defendant was presumed to be prohibited from possessing firearms, coupled with the client’s statement about possibly seeing a firearm and the Defendants confirmation of what appears to be a device to measure bullet speed to obtain a warrant. But, as you will see, they did not do so.]
- Plaintiff left his house, walked through his shop located adjacent to his house to the north, grabbed a pencil and a piece of paper, and approached the SUV to record its license plate number.
- Plaintiff then walked back to his deck, where he called 911 from a landline.
- The Deputy and Sergeant decided to leave.
- They backed the SUV onto a driveway to the west of plaintiff’s shop; the driveway was on plaintiff’s property but was used for public purposes, including package pickups and deliveries. The SUV was facing west, meaning the driver’s side door faced toward plaintiff, who stood on his porch to the south of his shop.
- Defendants Observing the Firearm:
- The Deputy then saw a bolt-action rifle on top of a bench on the north side of Plaintiff’s shop, and the Sergeant saw the rifle after the Deputy told him about it.
- The rifle was unloaded, and its bolt was back, meaning it was not in a position to be fired.
- [NOTE: It is fortunate that the Defendants noticed that the rifle was unloaded with its bolt back. If they believed the firearm to be loaded, the actions described below could have led to a greater use of force by the Defendants.]
- There was no one near the rifle at the time the Deputy observed it.
- Defendants Act Without a Warrant
- The Sergeant and the Deputy got out of the SUV, the Sergeant from the driver’s side.
- The Deputy testified that they did not try to obtain a warrant at that time because “at this time we were there, and we decided that we were going to attempt to make contact with [plaintiff] in regards to the rifle.”
- In his deposition, the Deputy was asked: “And what was the emergency that allowed you to enter [plaintiff’s] property without a warrant?” Counsel objected, and the Deputy did not answer. Following the objection, the Deputy was again asked, “Was there an emergency?” The Deputy responded, “I don’t believe there was an emergency.”
- Defendants Act Without Identifying Themselves
- While Plaintiff stood talking to the 911 operator on his porch, the Sergeant began “walking very quickly” toward the back of Plaintiff’s shop, in the direction of the rifle. He did not identify himself as law enforcement as he moved toward the rifle.
- The Takedown
- Plaintiff believed he was being robbed; he began running toward the rifle along the east side of the shop–the side facing away from the SUV.
- When asked where the Sergeant was at the time Plaintiff started running toward the rifle, Plaintiff testified that “[the Sergeant] was probably halfway around my shop by then,” and was “past his vehicle.”
- Plaintiff later photographed his view of the shop and driveway from his porch, where he had stood while talking to the 911 operator. He was able to see through a large opening in the south wall of his shop to two windows in the shop’s northwest corner. He had drawn a circle around the windows, and he testified he could see “[the Sheriff] get out of his vehicle and start in a fast pace towards the back of my shop right here (indicating).” He then stated: “And through these windows here where I could see him half [sic].”
- After seeing Plaintiff begin to run, the Sergeant and then the Deputy began running, still moving toward the rifle. They observed what they believed to be ammunition near the rifle; they believed Plaintiff could obtain and load the rifle, and they feared Plaintiff might fire it at them.
- [NOTE: Had the Defendants reasonably believed that the firearm was loaded and attainable by the Plaintiff (presumed to be a felon) before they could reach it, Defendants’ may have been able to escalate their response beyond what occurs next.]
- According to Plaintiff’s girlfriend who witnessed the events, the Sergeant exited the SUV, “started to walk, and then he was walking pretty fast almost a run.”
- She recalled that as the Sergeant began to run, “he pulled his jacket back, and I saw a badge, so at that time I felt a little more comfortable knowing that he was law enforcement. And he took out his service revolver, whatever you call their guns, and he headed north and then east around the corner. And [Plaintiff] came off the back porch. He was standing on the back porch talking to 911 on the speaker phone because our receiver doesn’t work. And he ran off the porch around the barbecue and over to the corner.”
- The Sergeant reached the rifle before Plaintiff, but he continued past it, turning the northeast corner of the shop.
- As Plaintiff approached the shop’s northeast corner, the Sergeant came around the corner, aimed his service weapon at Plaintiff’s head from a distance of eight or nine inches, and yelled, “Sheriff’s office, get to the f*****g ground, a*****e.”
- Plaintiff did not hear the words “Sheriff’s Office.” He explained: “[W]hen I seen that gun in front of my face, I didn’t hear nothing. I was waiting to get shot. I was waiting to die right there. And I thought I was going to get killed for somebody trying to steal from me.”
- Plaintiff started to back up so he could get on the ground. One to two seconds later, the Deputy tackled Plaintiff to the ground from behind. Plaintiff went to the ground on his front side and blocked his fall with his hands. His arms were pinned beneath his body, and the Sergeant and the Deputy were yelling at him to give them his arms.
- Either the Sergeant or the Deputy shoved plaintiff’s face into the ground. Both officers were on his back.
- They grabbed Plaintiff’s arms, pulled them behind his back, and handcuffed him, leaving him lying face down in the dirt for “a minute, minute and a half if not longer.”
- Plaintiff realized the Sergeant and the Deputy were law enforcement while he was on the ground being handcuffed.
- Plaintiff’s Release and His Injuries:
- Plaintiff complained that his hands were hurting, and the handcuffs were too tight.
- The officers informed him that he was a felon in possession of a firearm, but Plaintiff asserted he had an expungement order he believed allowed him to possess rifles.
- The Deputy moved Plaintiff from the ground to sitting on an ice chest next to the shop, loosening his handcuffs after he repeatedly complained.
- The Sergeant confirmed that Plaintiff’s conviction had been expunged.
- [NOTE: In a footnote, the Court explains that the Plaintiff had his felony conviction dismissed pursuant to 1203.4. I feel it is important to note that an expungement pursuant to Penal Code section 1203.4 does not restore firearm rights. Had the Defendants’ counsel been aware of that nuance in firearm rights restoration and raised that fact in the trial, the outcome of the case would likely have been very different.]
- The officers removed Plaintiff’s handcuffs and left.
- In his discovery responses, Plaintiff asserted he experienced “[n]ew right flank pain, increased left knee pain, increased neck pain, increased lower back pain, and PTSD [posttraumatic stress disorder]” as a result of the incident. In another response, he added that he felt pain in his right lower rib cage area and right hip, and had experienced nightmares, nausea, and anxiety attacks.
- In response to Defendants’ separate statement of undisputed material facts, Plaintiff agreed that he did not break any bones, and that as a result of the incident, he claimed physical injuries of “ ‘right flank pain’ and an exacerbation of prior pain and injuries.”
- On appeal, Plaintiff refers to his discovery responses, included in the record on summary judgment, and asserts that the Deputy’s takedown injured his lower back, neck, hip, and knee and caused him to suffer from sleeplessness, nightmares, nausea, and anxiety.
- Plaintiff asserts he was prescribed medication and received medical treatment for both physical and psychological injuries.
FINDINGS OF THE COURT
On appeal, the Third Circuit Court of Appeal made the following findings:
The Court reversed and vacated the trial court’s Summary Judgment ruling, thereby giving Plaintiff an opportunity to take his case to trial, and awarded costs of the Appeal to the Plaintiff.
I am informed that the parties later settled out of court for $75,000 plus attorney’s fees.
