Stephen Reinhardt

“ Once again we confront the question whether a police officer's use of force during the arrest of an unarmed citizen was sufficiently excessive to violate the citizen's clearly-established constitutional rights. Officer David Miller of the Las Vegas Metropolitan Police Department responded to a call from the Las Vegas Club Hotel & Casino informing him that security personnel had encountered Frankie Davis reading a magazine in an area of the Casino not open to the public. ”

“ The taxpayers in Hernandez, members of the Church of Scientology, sought to deduct, as charitable contributions under § 170 (c) , payments made by them to the Church of Scientology in exchange for the religious exercises of "auditing" and "training."1 The Court affirmed the Tax Court's reading of the statute disallowing the deductions on the following three grounds: (1) Congress had shown no preference in the Internal Revenue Code for payments made in exchange for religious benefits as opposed to other benefits, 490 U.S. at 692-93, 109 S.Ct. ”

“ As in Larez, the court's punitive damages instruction here was unambiguous. In order to award punitive damages, the jury had to find that "the defendants' conduct was malicious, or in reckless disregard of plaintiffs' rights." (SER 33) . The court explained that "in this context, conduct is malicious if it is accompanied by ill will, or spite, or if it is for the purpose of injuring another. Conduct is in reckless disregard of a party's rights if, under the [p1010] circumstances, it reflects complete indifference to the rights of others." ”

“ On May 20, 1994, the Department of Labor informed Lambert that the Sonics' overtime scheme did in fact violate the overtime provisions of the Fair Labor Standards Act. Lambert told Dixon of the Labor Department's conclusion and Dixon, according to Lambert's testimony, told her that "his hands were tied" because William Ackerley (Chief Operating Officer of Ackerley Communications, Inc., the corporate parent of the defendant corporations) "will not pay overtime and doesn't care what the laws are." ”

“ Even if Officer Miller's conduct violated Davis's Fourth Amendment rights, Miller is entitled to qualified immunity if the right violated was not "clearly established." Saucier, 533 U.S. at 201-02. The "dispositive inquiry in determining whether a right is clearly established is whether it would be clear to a reasonable officer that his conduct was unlawful in the situation he confronted." Id. at 202. Even where there is no federal case analyzing a similar set of facts, a plaintiff may nonetheless demonstrate that a reasonable officer would have known that the force he used was excessive. ”

“ If the regulatory scheme is to effectuate its substantive goals, employees must be free from threats to their job security in retaliation for their good faith assertions of corporate violations of the statute. Section 507 (a) 's protection would be largely hollow if it were restricted to the point of filing a formal complaint with the appropriate external law enforcement agency. Employees should not be discouraged from the normal route of pursuing internal remedies before going public with their good faith allegations. ”

“ The Sklars contend that these costs are deductible under section 170 of the Internal Revenue Code, as payments for which they have received "solely intangible religious benefits." They also argue that they should receive this deduction because the IRS permits similar deductions to the Church of Scientology, and it is a violation of administrative consistency and of the Establishment Clause to deny them, as Orthodox Jews, the same deduction. ”

“ Stated otherwise, an abuse of discretion is characterized by an application of unreasonable judgment to a decision that is within the actor's rightful prerogatives, whereas an act of bad faith has no relationship to a rightful prerogative even if the result is ostensibly within the actor's ambit of authority. ”

“ Substantial evidence is "such reasonable evidence as reason-able minds might accept as adequate to support a conclusion even if it is possible to draw two inconsistent conclusions from the evidence." Landes Constr. Co. v. Royal Bank of Canada, 833 F.2d 1365, 1371 (9th Cir. 1987) . The record makes clear that the jury's award of punitive damages against the Ackerleys was supported by substantial evidence. The jury heard testimony that the Ackerleys had a long-standing policy of refusing to pay overtime as required by federal law. ”

“ In this case, we must determine whether the FLSA's prohibition on terminating an employee who has "filed any complaint or instituted or caused to be instituted any proceeding under or related to this chapter" protects an employee who complains to his employer about violations of the Act. The district court, in denying the defendants' motion for judgment as a matter of law, held that the statute extends protection to employees who make such com-plaints. ”

“ Next, we must assess the governmental interest that might justify the use of such force under the Graham factors, starting with an assessment of "the severity of the crime at issue." Graham, 490 U.S. at 396. Trespassing and obstructing a police officer, as those offenses were committed by Davis, are by no means such serious offenses as to provide an officer with a reasonable basis for subduing a person by the means employed by Officer Miller. ”

“ Davis contends that the district court erred in concluding that Officer Miller was immune from suit under state law and therefore entitled to summary judgment with respect to the battery claim. In support of this argument, he relies on Yada v. Simpson for the proposition that "a police officer who uses more force than is reasonably necessary to effect a lawful arrest commits a battery upon the person arrested." ”

“ Dixon then told Lambert that if she continued to press for her statutory right to overtime pay:
you will definitely not have a job here, you will be fired. The decision is up to you. Everyone else in the office will love you, but you are jeopardizing your job. Is it worth it to you for a thousand dollars? (SER 195-96) .
In June 1994, the account executives decided that Lambert and plaintiff Chuck Viltz should be their representatives in dealing with the Sonics management. (SER 202) . Boustead confirmed that "Chuck and Laura were the spokespersons for the sales folks." ”

“ Atlantic Richfield Co., 13 F.3d 1276, 1284 (9th Cir. 1994) ) . "A party abandons an issue when it has a full and fair opportunity to ventilate its views with respect to an issue and instead chooses a position that removes the issue from the case." Id. However, where, as here, a plaintiff seeks summary judgment as to a particular claim, it cannot be said that he has "taken a position that removes the issue from the case" by conceding that the defendant is entitled to summary judgment. ”

“ Where an individual exercises "control over the nature and structure of the employment relationship," or "economic control" over the relationship, that individual is an employer within the meaning of the Act, and is subject to liability. Id. at 1470. The district court instructed the jury that it could find the individual Ackerleys liable only if it determined that they had a "significant ownership interest with operational control of significant aspects of the corporation's day-to-day functions; the power to hire and fire employees ”

“ This analysis "requires balancing the 'nature and quality of the intrusion' on a person's liberty with the 'countervailing governmental interests at stake' to determine whether the force used was objectively reasonable under the circumstances." ”

“ Second, the jury had before it evidence that the entire sales group was fired except for the one agent who did not complain about the overtime violations. [13] This evidence makes it wholly implausible that the discharges were the result of a "restructuring" driven by economic considerations. Third, the jury had before it evidence that immediately after the discharge of the entire sales staff (except Novak) , the Sonics announced new job openings for Ticket Sales Account Executives with job descriptions identical to those previously held by the plaintiffs. ”

“ Graham v. Connor, 490 U.S. 386, 394 (1989) . Here, Davis claims that Officer Miller violated his rights under the Fourth Amendment. [3] "A Fourth Amendment claim of excessive force is analyzed under the framework outlined by the Supreme Court in Graham v. Connor." Smith v. City of Hemet, 394 F.3d 689, 700 (9th Cir. 2005) (en banc) . Under Graham, "all claims that law enforcement officers have used excessive force—deadly or not—in the course of an arrest, investigatory stop, or other 'seizure' ... should be analyzed under the Fourth Amendment and its 'reasonableness' standard." ”

“ Around this same time, Lambert hired an attorney. On June 17, 1994, Lambert's attorney sent Barry Ackerley (CEO and [p1002] Chairman of the Board of Ackerley Communications) a letter requesting that the Sonics pay Lambert and the other account executives overtime as required by law. The letter also specifically requested that Ackerley instruct his managers "to refrain from retaliation or threats of retaliation against Ms. Lambert and other employees." (ER 118) . On July 6, 1994, Lambert's attorney delivered a complaint for unpaid overtime wages to the Sonics. ”

“ B. Liability as to the other plaintiffs The defendants next argue that even if Lambert's actions were protected by § 215 (a) (3) , there was no evidence that the remaining plaintiffs complained about overtime violations. ”