Archives for category: weapons

UNITED STATES OF AMERICA, Plaintiff,
v.
VU NGUYEN, Defendant.

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEVADA
2:03-cr-158-KJD-PAL
May 29, 2013

Opinion by United States District Judge Kent J. Dawson:

This matter is before the Court on remand from the Ninth Circuit Court of Appeals for the limited purpose of granting or denying a certificate of appealability.

This case arises from the armed robbery of Chong Hing Jewelers in Las Vegas Nevada. In the course of the robbery, several luxury watches having a value of approximately $885,000 were taken by two individuals. The robbers were covered, head-to-toe, in ninja-style white clothing. Before entering the store, one of the robbers executed the store security guard who had his back to them and was cleaning store windows. Eye witnesses had little to go on in describing the robbers other than the fact that one was carrying an assault-type rifle and the other was carrying a bag, and there appeared to be a height difference between the two individuals. The robbers were inside the store for no more than 90 seconds and store employees were assaulted in the process of the robbers obtaining access to the contents of display cabinets.

There was no deficiency in performance of counsel where counsel based the defense on a theory of lack of presence at the scene, incorporating facts and testimony of eyewitnesses to the crime combined with a lack of physical evidence placing Defendant there. This is also entirely consistent with the claim of Defense counsel that they were not previously informed by Defendant of his participation in the robbery. However, even if Defendant did inform counsel of his involvement and potential defense to the shooting, the outcome would not have been different.

Accordingly, Defendant is denied a certificate of appealability.

This may be the first mention of a white ninja outfit, as the prior clothing references refer to mostly (if not always) black clothing, but definitely not the first ninja robbery.

Habeas denied – Assault with ninja swords and a gun barrel butt the the head.


SAMUEL WEAVER, Petitioner,
vs.
WARDEN, LEBANON CORRECTIONAL INSTITUTION, Respondent.

Case No. 1:11-cv-218

UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO, WESTERN DIVISION

Decided October 5, 2012, opinion by Magistrate Judge J. Gregory Wehrman

Quoting from the Ohio Court of Appeals, Twelfth Appellate District summary of the facts:

{¶2} In April 2007, Michella Eldridge held a yard sale at her home in Hamilton, Ohio. Appellant came to the sale, and at trial, Eldridge testified that she remembered he had driven a white minivan with a steering wheel that had a cover with cherries on it. Eldridge also remembered that he arrived at her yard sale with a female and small child who remained in the vehicle. At the yard sale, appellant showed interest in a handgun that Eldridge’s husband was showing to his father. Although he did not purchase anything at that time, appellant returned later that day and bought a pair of “Ninja” swords.

{¶3} Approximately a week after the yard sale, appellant returned to Eldridge’s house in the white minivan and arrived just as she was cleaning up after another yard sale. Before leaving, appellant purchased a plant from Eldridge.

{¶4} On May 19, 2007, Eldridge was at home with her daughters when she heard the doorbell ring. She went to the back door and saw appellant. Appellant asked her whether she still had the gun he saw at the yard sale. When Eldridge told him she no longer had the gun, he asked her whether she had any other “firearms.” Eldridge explained that they had a “Tech 9,” but that she was not sure her husband wanted to sell it. Appellant then asked if he could see the gun and told her that he would get the money to purchase it.

{¶5} Eldridge told appellant to wait outside, and she pushed the back door almost completely closed. She then went through the house and retrieved the gun from a dresser. She placed the gun on her dining room table. She did not notice appellant was in the room until he reached across her and grabbed the weapon. As Eldridge pleaded with appellant to give the gun back to her, he struck her on the head with the butt of the gun.

{¶6} Appellant smiled after hitting Eldridge the first time and started for the back door, but Eldridge followed him. As she was asking for the gun, appellant’s arm went up to strike her a second time, and Eldridge hit him in the face. He then hit her in the head again with the butt of the gun. Eldridge testified that the blow “dazed” her and “kind of put [her] out.” Appellant then took off out the back door. Eldridge testified that she “shook it off” and chased after appellant.

{¶7} Eldridge caught appellant and grabbed his shirt. She testified that he exclaimed, “Let go of me you fucking bitch,” and he struck her in the head with the butt of the gun three more times. Eldridge was bleeding, and appellant fled. She called 9-1-1 and was taken to the hospital, where she received 28 stitches in her head for a wound deep enough to expose her skull.

The petition for writ of habeas corpus was denied with prejudice.

This is a petition for writ of habeas corpus for a convicted attempted murder in California. Petitioner was sentenced “to state prison for life with the possibility of parole, plus 25 years to life plus a consecutive five years”. Petition for habeas is denied. This crime was a gang-related shooting. One gang member, “Hankie”, is described wearing a hooded sweatshirt and bandana: “ninja style”.

ninja style hoodie bandana

WILLIAM T. TUCKER, Petitioner,
v.
MATTHEW CATE, Secretary, Respondents.

Civil No. 10-CV-2272-BGS

UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF CALIFORNIA

Decided June 12, 2012 by U.S. Magistrate Judge Bernard G. Skomal:

Quotes the facts from the California Court of Appeal, Fourth District, Division One:

At around 7:46 p.m. on October 3, 2005, the shooting victim in this case, Jerry Wright Jr. (Wright), was sitting on the stairs near his apartment in the Bay Vista Apartment complex on Logan Avenue in San Diego. The Lincoln Park street gang claimed Lincoln Park—the area where the Bay Vista Apartments are located in southeastern San Diego [footnote omitted] as their territory, and many members of that gang lived in that apartment complex. Although the Lincoln Park and O’Farrell gang were both affiliated with the Bloods, they had been rivals for over a decade. Although Wright did not claim membership in any street gang, his brother had been a member of the O’Farrell Park gang. [footnote omitted] Tucker is a documented member of the Lincoln Park gang, and his gang moniker was “Finny Boy.”

and

“Hankie”—identified at trial as Scott by Scott’s girlfriend—who was falling and stumbling, and making noise because he hit a gate. Scott was wearing a black hooded sweatshirt and a green bandanna over the lower portion of his fact, “Ninja style” with just the eyes showing. Scott, whom Wright had also seen on prior occasions, was one of the males Wright had seen in the group earlier that evening. Scott was stooped over behind Tucker and making “trembling” noises. He had shot himself in the upper buttocks and down through his front left leg in the groin area.

Police warrants on protest groups before the Republican National Convention – implicates the rights to associate and protest and rights of search and seizure. The warrants were for bomb-making materials, but at one plaintiff’s address they found ninja foot spikes. This is the decision on motions for summary judgments.

SCOTT DEMUTH, ALEXANDER LUNDBERG, CELIA KUTZ, NATHAN CLOUGH, VINCENT COLLURA, and ANDREW FAHLSTROM, individuals, Plaintiffs,
v.
ROBERT FLETCHER, individually and in his official capacity as Ramsey County Sheriff, INSPECTOR SAMEC, individually and in his official capacity as Deputy of the Ramsey County Sheriff’s Department, COMMANDER RICH CLARK, individually and in his official capacity as Deputy of the Ramsey County Sheriff’s Department, COMMANDER SOMMERHAUSE, individually and in his official capacity as Deputy of the Ramsey County Sheriff’s Department, COUNTY OF RAMSEY, a Minnesota municipal entity CERTAIN UNKNOWN AND UNNAMED SAINT PAUL POLICE OFFICERS, CITY OF SAINT PAUL, CERTAIN UNKNOWN AND UNNAMED CITY OF MINNEAPOLIS POLICE OFFICERS, and CITY OF MINNEAPOLIS, a Minnesota municipal entity, Defendants.

Civil No. 08-5093 (JRT/LIB)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MINNESOTA

2011 U.S. Dist. LEXIS 34638

Decided March 31, 2011

Opinion by US District Judge John R. Tunheim:

Defendants Robert Fletcher, Tony Samec, Dale Sommerhause, and Rich Clark (“defendants”) executed search warrants at various locations in August 2008 in relation to alleged illegal activity undertaken by members of a group known as the Republican National Convention Welcoming Committee (“RNCWC”). Defendants seized a large quantity of documents and other items, some of which allegedly belongs to plaintiffs Scott Demuth, Alexander Lundberg, Celia Kutz, Nathan Clough, Vincent Collura, and Andrew Fahlstrom (“plaintiffs”).

Plaintiffs are alleged co-owners of various materials seized by police officers during a raid of several buildings in 2008, prior to the Republican National Convention (“RNC”). Kutz, Fahlstrom, and Clough were members of a collective known as the RNCWC which raised funds to rent space to congregate, share ideas, and organize various protest activities related to the RNC. The RNCWC provided space and tables to allow the distribution of their own literature, as well as the literature of other groups and activists. The RNCWC intended to shut down the RNC to prevent it from occurring, and to prevent delegates from arriving at the RNC’s location.

The documents include statements such as “EVERYTHING YOU NEED TO KNOW TO BE SMART AND DANGEROUS DURING THE RNC BEFORE YOU ASK,” and explicit instructions for making a Molotov cocktail.

On August 29, 2008, Inspector Tony Samec, Commander Dale Sommerhause, and Commander Rich Clark of the RCSO applied for and received a warrant to search for assembled and unassembled bombs and materials to construct bombs, documents, and other materials at the Convergence Center. The application and resulting warrant described a variety of weapons and materials the affiants believed would be found there, including “[a]ssembled improvised incendiary devices . . . [i]gnitable liquids . . . [s]moke bombs . . . [and] [m]anuals, books and/or instructions for the construction of Molotov cocktails, bombs and other direct action techniques[.]”

One of the addresses searched:

D. 3500 South Harriet Avenue

On August 30, 2008, at 8:00 am, officers executed a search warrant at 3500 South Harriet Avenue. (Incident Report 3500 S. Harriet Ave., Samec Aff. Ex. A, Docket No. 56.) Officers located several weapons, including “ninja foot spikes,” a slingshot, and documents relating to the RNC. (Id. at 4-5.) Plaintiff Vincent Collura alleges that after entering the house, police ordered him to lie on the floor, where he was handcuffed and searched, then was unbound and taken outside approximately a half-hour later.

Collura testified that he resided at the residence at the time of the search, and shared a bedroom with Max Specktor. Collura also asserts ownership of a two-page address and phone list, from which he was transferring phone numbers into a new cell phone, that was seized by officers effectuating the warrant. Collura testified that the raid had a chilling effect on his desire to participate in the planned protests of the RNC for fear of further interactions with the police. (Collura Dep. 54:5-7, Apr. 30, 2010, Angolkar Aff. Ex. P.)

A whole bunch of legal analysis – concluding:

Based upon all the files, records and proceedings herein, IT IS HEREBY ORDERED that:

1. Defendants’ Motion for Summary Judgment [Docket No. 53] is GRANTED in part and DENIED in part;

a. The motion is GRANTED as to plaintiffs’ claims for conspiracy, failure to prevent, and claims under Monell;

b. The motion is GRANTED as to claims against any unknown officers. The “certain unknown and unnamed Saint Paul Police Officers, including officers John Doe and Jane Roes 1 thru 100” and “certain unnamed and unknown City of Minneapolis Police Officers, including officers John Doe and Jane Does 1 thru 100,” are DISMISSED with prejudice.

c. The motion is DENIED in all other respects.

2. Plaintiffs’ Motion for Partial Summary Judgment [Docket No. 51] is DENIED.

DATED: March 31, 2011

at Minneapolis, Minnesota.

/s/ John R. Tunheim

In this case a writ for habeas relief is granted based on faulty jury instructions. The reference to “ninja” is from the testimony of a seven year old. The court explains that this testimony “certainly could have [been] discredited” by the jury.

RONNIE JERMAINE SHERRORS,
v.
JEANNE S. WOODFORD,

No. 07-56756, No. 08-55524

UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

425 Fed. Appx. 617

Filed March 31, 2011

Before Circuit Judges: Fletcher, Berzon and Callahan. Judge Callahan dissented. The majority opinion explains:

key witness for the prosecution was Latrina Walker, Sherrors’s 24-year-old mentally-disabled sister, who testified that she had been drinking and smoking marijuana the evening of the murder. Additionally, Walker’s mother and aunt both testified that she was untruthful and unreliable. In light of these reasons to doubt her accuracy as a witness, the jury well could have chosen not to believe Walker’s account. FN6

FN6- A third witness, who was five years old at the time of the murder and seven at trial, testified that not only did he see blood on Sherrors’s shirt and shoes the night Foth was killed, but that he saw Foth dismembered by men with ninja swords. The jury certainly could have discredited him entirely as well.

No direct evidence linked Sherrors to Foth’s murder.

and

The dissent suggests that the instructional error was cured by the trial court’s instructions on the particular elements of the crimes charged and the beyond a reasonable doubt standard. See Dissent at 4. But these general instructions simply “could not overcome the misdirection of a specific instruction that permitted the jury to find an element of the crime without considering all the evidence.” Rubio-Villareal, 967 F.2d at 300.

Concluding:

the district court’s conditional grant of Sherrors’s petition for the writ of habeas corpus is AFFIRMED.

UNITED STATES OF AMERICA
v.
BRANDON CAPAROTTA

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MAINE

1:10-cr-00147-JAW
2011 U.S. Dist. LEXIS 32522

Decided March 28, 2011

Opinion by Chief District Judge John Woodcock, Jr.:

On November 10, 2010, Brandon Caparotta pleaded guilty to theft of firearms from a licensed dealer, a violation of 18 U.S.C. § 922(u), and possession of stolen firearms, a violation of 18 U.S.C. § 924(a)(2). At the guilty plea, the Court ordered the preparation of a presentence report (PSR).

and quoted from paragraph 7 of the PSR:

While at the residence, Caparotta gave Cory Damon the mini-bike, which Caparotta reported stealing, and asked Damon to sell it for him, so they could split the money. They were in the process of stealing a Ninja 1000 motorcycle when the pickup truck got stuck in a ditch and the police came.

The issue:

She explained that she was not objecting because the PSR inaccurately reported what Corey Damon had said; rather, she was objecting because what Corey Damon had said was false and should not be considered by the Court.

and

Defense counsel contended that under Rule 32(i)(3)(B), the Court had an obligation to strike the portion of the PSR to which she had objected. Fed. R. Crim. P. 32(i)(3)(B).

Therefore

The Court therefore ORDERS Brandon Caparotta within seven days of the date of this Order to set forth in detail precisely what statements he contends are erroneous on a line by line basis

Presumably that hearing in Maine District Court went forward – but later, this same defendant’s case on subsequent appeal, the First Circuit affirmed the conviction, USA v Caparotta, 676 F.3d 213 (April 5, 2012, 1st Cir.) – This case decided before Chief Circuit Judge Lynch, Retired Associate Justice of the Supreme Court David Souter sitting by designation and Associate Circuit Justice Stahl, who wrote the opinion:

After pleading guilty to stealing firearms and possessing stolen firearms, defendant Brandon Caparotta received a sentence of fifty-four months’ imprisonment. That sentence was based, in part, on the district court’s finding that Caparotta qualified as a “prohibited person” who, because of his history of substance abuse, was barred from possessing firearms. Caparotta raises two arguments on appeal, both stemming from an interview with the Pretrial Services Office during which he disclosed information about his drug use at the time of the offense. That information, he claims, was obtained upon a promise of confidentiality, and it was therefore a violation of his due process rights and of Federal Rule of Criminal Procedure 32 for it to be included in his Presentence Investigation Report (PSR) and used against him at sentencing. He also claims that he was denied the effective assistance of counsel, in violation of the Sixth Amendment, when his trial attorney allowed him to disclose the information. We find that Caparotta’s due process claim is waived, that he has not demonstrated a violation of Rule 32, and that his Sixth Amendment claim fails. We therefore affirm.

Petition for writ of certiorari to the Supreme Court was denied, Caparotta v US, No. 11-10207, 132 S. Ct. 2754 (June 11, 2012); JUDGES: Roberts, Scalia, Kennedy, Thomas, Ginsburg, Breyer, Alito, Sotomayor, Kagan.

It is unusual for the federal courts to be involved in custody disputes but in this case an emergency order was sought after the mother too the 7 year old to the emergency psychiatric hospital and did not tell the father. Also this case involves a parent living in another country and the Hague Convention:

SAVVAS CHARALAMBOUS, Petitioner,
v.
ELIZABETH ROHNERT CHARALAMBOUS, Respondent.

Docket no. 2:10-cv-375

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MAINE

751 F. Supp. 2d 255

Decided November 16, 2010 by US District Judge George Z. Singal:

Before the Court is the Emergency Motion to Modify Stay (Docket # 101), which was filed by Petitioner/Appellee Savvas Charalambous (“Father” or “Savvas”). The Motion was transferred to this Court by the First Circuit. (See Nov. 10, 2010 Order of Court (Docket # 100).) Pursuant to the First Circuit’s Order, this Court is to make necessary factual findings and rule upon three specific requests in Petitioner’s Emergency Motion

and

In accordance with this Court’s November 10, 2010 Procedural Order, this Court held a conference of counsel on November 15, 2010. Attorney David Abramson appeared for the Father, Petitioner Savvas Charalambous. Attorney Judith Potter appeared for Respondent Elizabeth Rohnert Charalambous (“Mother” or “Elizabeth”).

and

Based on the record and the stipulations provided by the parties, the Court makes the following findings regarding post-judgment developments:

1. On October 18, 2010, this Court set a November 2, 2010 deadline for Mother to turnover the Children to Father. As of October 20, 2010, Mother, the appellant before the Court of Appeals, had filed a motion to further extend this turnover date and stay judgment pending resolution of her appeal by the First Circuit.

2. On October 26, 2010, Savvas had one of his regularly scheduled after-school visits with his son, N.C. During this visit, Savvas provided N.C. with a ninja costume and play numchucks as part of a Halloween costume.

3. On the evening of October 26th, after returning from this visit, N.C. argued with his Mother. Elizabeth was unable to get N.C. to go to bed. Elizabeth ultimately called 911 for assistance.

4. At 9:21 PM, Deputy Delbert Mason of the Androscoggin County Sheriff’s Department was dispatched to the Mother’s home on a report of “a 7 year old child that was out of control and violent.” (Mason Aff. ¶ 2.)

5. Upon arrival, Deputy Mason met Elizabeth and N.C., who was still wearing a ninja costume. N.C. appeared calm. As noted by the Deputy, N.C.’s grandmother was also present at the house.

6. Ultimately, Elizabeth requested that the Deputy call for an ambulance to transport N.C. to St. Mary’s hospital in Lewiston, Maine. N.C. did exhibit violence towards his Mother while resisting attempts to be taken to the ambulance. With the assistance of Deputy Mason, N.C. was secured in the ambulance by seatbelt and his Mother rode with him to St. Mary’s hospital.

7. At no point in the evening was Savvas contacted to inform him of the difficulties N.C. was having or of the need to have him transported to the hospital.

The Court concludes:

Based on this Court’s examination of the above-summarized factual record and the representations of counsel, the troubling events that led to N.C. being hospitalized at NMMC appear to reflect a panicked parent seeking to avoid the then-pending November 2, 2010 turnover date. Even with no definite turnover date on the horizon, the parents are struggling to engage in the communication necessary to co-parent two children while they are living apart. This failure to communicate does a disservice to their Children and disrespects the important role that each parent plays in the life of N.C. and A.C.

This habeas petitioner was conviction by court-martial of murder with a Ninjatō sword and sentenced to life in prison. The federal courts here affirm the military court judgement.

ninja to sword

CURTIS A. GIBBS, Petitioner,
v.
J. E. THOMAS, Respondent.

1:07-cv-01563-SKO-HC

UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF CALIFORNIA

2010 U.S. Dist. LEXIS 122152

Decided November 15, 2010, filed November 18, 2010.

Opinion by US Magistrate Judge Sheila K. Oberto:

In the brief there are set forth “[u]ncontested [f]acts” pertinent to the charge, which concerned the premeditated murder of Mrs. Brenda Salomon on August 18, 1989. (Id. at 17.) Petitioner confessed to the killing, revealing that while at the Shipwreck Lounge, he encountered Salomon and then left the lounge. When Petitioner entered his truck, Salomon, who was very drunk, tapped on the window and asked Petitioner to take her out to get something to eat. Petitioner agreed and bought Salomon some fast food. When Salomon passed out several times and failed to tell Petitioner where she lived, Petitioner stopped at a telephone booth and told her to get out of his truck and call someone to come to pick her up. When she called him names, slapped him, and failed to leave the truck, he drove into a wooded area, stopped, and ordered her out of the truck. A physical altercation ensued, and Petitioner pulled Salomon out of the truck. When Salomon removed her shorts, taunted Petitioner, and attacked him as he tried to enter his truck, Petitioner became enraged, hit her repeatedly, retrieved his “Ninja To” sword from the truck, and struck Salomon so hard that the sword’s handle detached from its blade. (Id. at 18, 21-23.) The blow severed her spinal cord and vertical arteries. (Id.)

Petitioner returned to the lounge after retrieving the sword and throwing Salomon’s things out of the truck, and stayed there until closing time. The body was discovered in a wooded area on the Camp Lejeune Marine Corps base, and multiple items of corroborating evidence were found. (Id. at 17-18.)

Petitioner prosecuted as a court martial under military law, impacting this Court’s jurisdiction and scope of review:

In the present case, Petitioner acknowledges that his case was reviewed by both the Navy-Marine Corps of Military Review and the United States Court of Military Appeals. (Pet. 2.)

All of the petitioner’s claims here for habeas relief are denied, some are not ripe because of non-exhausted administrative remedies, regarding alleged prosecutorial misconduct denied because the military court had already looked into it, and no jurisdiction to review military discharge.

This case opinion was affirmed by the Ninth Circuit in January 2012, memorandum opinion before Judges Leavy, Tallman and Callahan.

This 2010 opinion is the denial of habeas petition for a convicted murderer in a drug-related offense.

KEVIN POTTER, Petitioner,
v.
WILLIE SMITH, Respondent.

CASE NO. 2:09-CV-12049

UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF MICHIGAN,
SOUTHERN DIVISION

2010 U.S. Dist. LEXIS 103088

Decided August 4, 2010, by U.S. Magistrate Judge Paul J. Komives

Petitioner Kevin Potter is a state prisoner, currently confined at the Ionia Maximum Correctional Facility in Ionia, Michigan. On November 11, 2003, petitioner was convicted of conspiracy to commit first degree murder, Mich. Comp. Laws § 750.157a, 750.316, following a jury trial in the Wayne County Circuit Court. On December 9, 2003, he was sentenced to a mandatory term of life imprisonment without parole. Petitioner appealed as of right…

The court quotes the trial evidence from the respondent’s answer (so this is the government version of the facts). Three witnesses refer to a man dressed in black and it seems a neighbor witness Beverly Moore used the description “ninja”:

Scott Klass, an electrician, testified that he heard gunshots on the morning of September 19, 2002 and that he saw a man dressed all in black with a rifle and that he saw a van then come down the street, and the van was similar in style to the picture shown to him by the prosecutor. (TT 11/4/03, pp 61-63). Beverly Moore, who lives across the street from the victim’s family, testified that on the morning in question she saw a van parked in front of the Wright house and she wondered why it was blocking their driveway. (TT 11/5/03, pp 8-9). Ms. Moore heard noises but assumed it was firecrackers, but when she went outside she saw a “ninja” all in black with a gun in his hand. (TT 11/5/03, p 13). Another neighbor, Katherine McFarland, also testified about hearing shots and seeing a man all in black with a big, AK 47 type gun in his hands. (TT 11/5/03, pp 39-40).

The facts of this case also involve cocaine, marijuana, an AK-47, and “fire melted” skin. It seems Potter was dressed in black when he killed Mario Allen, on the steps of Mario’s home as Mario left to appear at his sentencing hearing for a drug related crime (a cocaine sale). It seems Mario’s two co-defendents in the drug sale hired Potter to kill Mario so that Mario wouldn’t show up at the sentencing. Then the co-defendants withdrew guilty pleas and prepared to face trial without Mario’s testimony.

In this instant case, Potter is petitioning the federal government for habeas relief but Magistrate Judge Komives finds no violations of federal law, concluding:

In view of the foregoing, the Court should conclude that the state courts’ resolution of petitioner’s claims did not result in a decision which was contrary to, or which involved an unreasonable application of, clearly established federal law. Accordingly, the Court should deny petitioner’s application for the writ of habeas corpus.

This Magistrate report was adopted by order of District Judge Gerald E. Rosen on September 29, 2010

In this case a person, Sullivan, was shot and killed by the police in an apartment search. The police lost summary judgment at district court and appealed. On appeal the Ninth Circuit affirmed. But in dissent Judge Wu refers to a “ninja” knife

KATHLEEN ESPINOSA, individually and as personal representative of the Estate of decedent Asa Sullivan; ASA SULLIVAN; A. S., by and through his Guardian ad Litem; NICOLE GUERRA, Plaintiffs-Appellees,
v.
CITY AND COUNTY OF SAN FRANCISCO; HEATHER FONG, in her capacity as Chief of Police, Defendants, and JOHN KEESOR, Police Officer; MICHELLE ALVIS, Police Officer; PAUL MORGADO, Police Officer, Defendants-Appellants.

No. 08-16853

UNITED STATES
COURT OF APPEALS
FOR THE NINTH CIRCUIT

598 F.3d 528

Filed – March 9, 2010

Before Judges: Procter Hug, Jr. and Richard A. Paez, Circuit Judges, and George H. Wu, * District Judge.
* The Honorable George H. Wu, United States District Judge for the Central District of California, sitting by designation.

Opinion by Judge Hug; Partial Concurrence and Partial Dissent by Judge Wu.

In the opinion of District Judge Wu, sitting on the Court of appeal by designation, concurring in part and dissenting in part:

I agree with the majority that the district court properly denied summary judgment as to the defendant officers’ claim of qualified immunity in regards to their entering and searching the apartment. However, I disagree with the Opinion’s resolution of the qualified immunity question in the contexts of the unreasonable force and provoking a confrontation issues.

noting:

Martin was searched for weapons and a four inch “ninja” knife was located in his back pocket. It did not appear to have any blood on it.

concluding:

I dissent from the majority’s affirmation of the district court’s denial of the defendant officers’ motion for summary judgment on the basis of qualified immunity as to the issues of excessive force and provoking a confrontation.

It is interesting to note that it is the judicial opinion in favor of the police that refers to the “ninja” knife. What makes a knife a ninja knife… because it is quoted maybe it is testimony but it is uncited in Judge Wu’s dissent.