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Suit Not Dead, Just Playing Possum: 9th Denies Qualified Immunity

By Robyn Hagan Cain | Last updated on

We typically don’t cover the Ninth Circuit Court of Appeals’ unpublished opinions, but every once in a while there’s a sleeper case that suddenly springs to our attention. (Brief thanks to the Wall Street Journal Law Blog.)

In 2008, Lorenzo Oliver’s 12-year-old son, C.B., hit an opossum on the head with a shovel after it (allegedly) attacked the Oliver family’s bulldogs. Both Oliver and his son were arrested on animal cruelty charges, though they were never charged. They were miffed that Anaheim cops hauled them to jail for trying to kill an opossum, so they sued the cope for wrongful arrest.

The Orange County Register has the facts of the story here.

After a district court dismissal, a Ninth Circuit panel ruled this month that the Oliver's case could move forward. Chief Judge Alex Kozinski wrote for the 2-1 majority, "The officers had no probable cause to arrest C.B. and Oliver because the act the officers believed C.B. committed -- trying to kill the opossum by hitting it with a shovel -- isn't a crime in California."

Let's hit this opinion Q&A style.

Why would killing an opossum be a crime? Because California law prohibits people from intentionally and maliciously maiming or killing animals. Though maiming and killing for kicks is illegal, doing so in defense of "life, limb, or property" is totally cool with the legislature.

Are opossums a threat to "life, limb, or property"? We've never been close enough to one to find out, but California has eliminated the guesswork: Regulations explicitly permit opossum killing.

Was the shovel the problem? While the regulations list ways that you can't kill opossums -- poison, for example, is verboten -- they are silent regarding the use of shovels. The majority concluded that the cops had no evidence that plaintiffs did anything more than try to kill the opossum, which they were entitled to kill. Here, Judge Kozinski noted that the offending opossum had threatened the plaintiffs' bulldog, so the opossum clearly needed killin'.

Does this mean you would kill an opossum? No. We may talk a big game, but we don't actually hunt. We have killed two non-buggy creatures: a squirrel and a deer. Both ran in front of our car.

Where does that leave the plaintiffs? "Because C.B.'s act wasn't criminal, there was no cause to arrest him. Without an underlying criminal act, Oliver couldn't have been an accessory or an aider and abettor ... The arrests violated the plaintiffs' constitutional rights, therefore the officers are not entitled to qualified immunity," according to Judge Kozinski.

Simple, right? Maybe not. According to newbie Ninth Circuit Judge Paul Watford, the fact that there was room for debate regarding whether "bashing a mother opossum on the head" constituted malicious and intentional wounding meant the officers should get qualified immunity.

Oliver and C.B. may have a shot at winning at trial if they can pack the jury with opossum haters. One last question: Can voir dire gauge anti-opossum sentiment?

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