These are two consolidated appeals from two district court cases, Cunningham v. Gates, No. 96-02666-CBM and Soly v. Gates, No. 96-4157-CBM, that arose out of the shooting of persons by members of a Los Angeles Police Department (LAPD) squad known as the Special Investigations Section (SIS), which occurred outside Los Angeles in Newbury Park, Ventura County, California on June 26, 1995.
The deadly incident started with a long-term surveillance by SIS members of Robert Cunningham and Daniel Soly (for whom police had information there was an outstanding warrant of arrest), who had been positively identified to the police as the perpetrators of prior specific robberies by a reliable informant to the LAPD. Under direct SIS surveillance Mr. Cunningham and Mr. Soly drove out of Los Angeles and robbed Southwest Liquor and Deli, making off with cigarettes and a beer, and the incident culminated in the SIS cornering Messrs. Cunningham and Soly in their parked car, in the dark, admittedly not announcing themselves as police officers, and a shootout, in which SIS members shot each other, shot Mr. Soly to death and shot Mr. Cunningham four times in the back, leaving him paralyzed.
The above is an excerpt from my appellate brief. I think this was my first shot at Heck at the federal appellate level. Heck v. Humphrey is an opinion, penned by Scalia, that wreaked some havoc at the district court level for plaintiffs, injured by government officers, but who also found themselves convicted or facing conviction. I threaded a needle in a haystack. Ultimately, the Ninth Circuit allowed the survivors’ claims to proceed, but found the paralyzed young man’s claims were barred by Heck v. Humphrey, the nexus between the use of force and the crime for which he was convicted was just too close to parse.
Myriad issues arose in this case, both at the district court and on appeal. The intersection of federal habeas corpus relief and federal civil rights law. Standing at the crossroads was the Special Investigations Section of the LAPD. To their right was a dead young man. To their left, a paralyzed young man. Some cigarettes and a beer. And a couple of wounded officers—shot by their fellow officers. Upon arrival at the blood bath, the Ventura County Sheriff’s Department arrested everyone, including the officers.
The brief is a bit tedious as the government was taking every shot it could to escape any responsibility and liability. But it is chock full of authority on Heck, on rules of accrual, on the intersection of Heck and federal habeas, on dicta, on collateral estoppel, and additional issues.
Another brief in opposition to a motion for summary judgment in yet another subsequent SIS death case is here: figueroa.4-17-02 OPP MSJ 1
Kathryn S. Bloomfield