Decide for yourself whether this is a case in which -- as Judge Ikuta says (in dissent) -- bad facts are making bad law, or rather (as Judges Farris and Clifton would say) the bad facts meet good law.
Everyone agrees, however, that these are bad facts. An off-duty San Diego Sheriff's Department Deputy shoots his wife in the jaw. Numerous officers and paramedics immediately respond after a 911 call. All these people get there fairly rapidly and take the perpetrator into custody. The victim's been shot. They call for an air ambulance to get the victim to a major trauma center. They've got to drive ten minutes to get her to the landing area. Time's of the essence. They put the victim into a c-spine collar. The ambulance is there. Engine running, ready to take the victim to the landing pad.
And then they wait. And wait. And wait. And wait.
Among other delays, the police refuse to allow the ambulance to leave. Because they want to interview the victim. Because that's obviously more important than getting this victim of a gunshot wound, who's bleeding from her jaw, to a hospital.
Eventually the police officers let the ambulance go. Half an hour or more after she's been shot. She bleeds out on the way to the landing pad. Dead. At her autopsy, the coroner concludes that she need not have died. Her injuries were survivable if she had been treated.
But don't think it ends there.
The victim lived with her parents. Who were there. They saw the ambulance leave, but the police refused to allow them to go with her. Now they tell the father that his daughter's dead. He wants to tell his wife, who's waiting inside the house, that their child has passed.
Nope. Won't let him. The police -- actually, the Sheriff's Department, the same institution the shooter was from -- insist that the "witnesses" have to stay separate. Interviews, again. Definitely can't let a family grieve, or even know that their child has died, until all the paperwork's done.
The father's irate. Says he didn't see anything at all relevant to the shooting, so has nothing to say. Says he's telling his wife, and they'll have to shoot him to stop him. Walks towards his house to tell his wife.
The Sheriff's Department sprays him three times with pepper spray. Hit him with a baton. Handcuff him. All for a guy who's just lost his daughter and never resisted arrest.
Oh, and then -- true to their word -- they keep all the "witnesses" apart. Interview them. For five hours. At the end of which they say: "By the way, your daughter died a long time ago."
Plaintiffs sue.
The Ninth Circuit holds that there's a genuine issue of fact about whether what the police did to both the daughter and to the other family members (delaying treatment, excessive force, seizing witnesses for hours, etc.) violated their rights. And that the individuals from the ambulance company could be sued, notwithstanding tribal immunity, in their individual capacities.
Judge Ikuta agrees as to the tribal ambulance employees -- the tribe's lawyer at oral argument didn't have good answers even to some fairly basic questions -- but disagrees as to the other defendants.
Bad facts. Really, really bad facts.
