Courtesy of James R. Touchstone, Esq.
CPOA CASE SUMMARIES – NOVEMBER 2021
CONSTITUTIONAL LAW/POLICE CONDUCT
A. Plaintiff raising his hands in the air and questioning why he was being detained demonstrated a submission to a show of authority.
People v. Cuadra, 71 Cal. App. 5th 348 (2nd Dist. 2021)
Facts: In June 2020, Los Angeles County Deputy Sheriff Xavier Zeas and his partner drove their patrol car into a motel parking lot in the City of Commerce, and stopped next to a parked car. Oscar Cuadra was standing near the parked car. Because of Black Lives Matter protests, there was a curfew in effect. Although the curfew did not apply to persons on private property, Deputy Zeas asked Cuadra if he was aware of the curfew. Cuadra said no. Deputy Zeas then asked Cuadra if he was on parole or probation. Cuadra said he was on probation. It was “at that point,” Deputy Zeas testified later, that he decided to detain Cuadra.
The two officers exited their patrol car and asked Cuadra to walk over to the hood of their patrol vehicle. Cuadra then raised his hands and started to step backward away from the patrol car, asking why the officers were “attempting to detain” him when he had done nothing wrong. Deputy Zeas then saw, in Cuadra’s right front pants pocket, an unidentified “pretty big” “bulge” that was consistent with the shape of a firearm. Before Deputy Zeas could react to what he just observed, Cuadra “spontaneously” told the deputies that he had a gun. Deputy Zeas then ordered Cuadra to the ground. Cuadra complied and was detained. Deputy Zeas performed a patdown search and recovered a loaded .38 caliber revolver from Cuadra’s right front pants pocket.
Cuadra was charged with possession of a firearm by a felon. Before pleading no contest, Cuadra filed a motion to suppress the firearm evidence under Penal Code section 1538.5 as the fruit of an unlawful detention. The trial court denied the motion. Cuadra appealed.
Held: The California Second District Court of Appeal explained that a consensual encounter may ripen into a seizure for Fourth Amendment purposes “‘when the officer, by means of physical force or show of authority, has in some way restrained the liberty of a citizen.’” (People v. Brown (2015) 61 Cal.4th 968, 974, quoting Terry v. Ohio (1968) 392 U.S. 1, 19, fn. 16.) “In situations involving a show of authority, a person is seized ‘if “in view of all of the circumstances surrounding the incident, a reasonable person would have believed that he was not free to leave,”’ or ‘“otherwise terminate the encounter.”’” (Id.; see Florida v. Bostick (1991) 501 U.S. 429, 437–438 [A seizure of a person occurs the moment a reasonable person would not have felt free to leave without responding or yielding to the officer.].) The Second District noted that instructions to put one’s hands on the hood of a car has been deemed a show of authority. (United States v. Brodie (D.C. Cir. 2014) 742 F.3d 1058, 1061; United States v. Brown (2005) 401 F.3d 588, 595.)
The Court of Appeal determined that Deputy Zeas began the detention process when he asked Cuadra to come toward the hood of the patrol car. The Court stated that hearing those words, whether as a request or an order, no reasonable person would feel free to leave. The Court explained that it was objectively apparent the officers intended to detain and frisk Cuadra, and Cuadra, by his question, reasonably understood that he was being detained. By raising both his hands, Cuadra yielded to the officers’ show of authority. There was neither probable cause to arrest him but for the illegal detention, nor was this a consensual encounter after the officers directed Cuadra to the hood of the car. The officers merely knew was that he was standing next to a car in a motel parking lot at 2:00 a.m. The Court found that under the totality of circumstances, Cuadra submitted to a show of authority, and his detention was not founded on reasonable suspicion, consent, or probable cause to arrest. The Court stated that the stop thus “[did] not pass constitutional muster and a revolver seized as a result of the search should have been suppressed.” The Second District concluded that the trial court erred in denying Cuadra’s motion to suppress, and accordingly reversed.
B. A plaintiff failed to plausibly allege that an officer violated a detainee’s constitutional right to adequate medical treatment.
- K. J. v. City of San Diego, 2021 U.S. App. LEXIS 33778 (9th Cir. Nov. 15, 2021)
Facts: In November 2018, San Diego police officers stopped a vehicle with an expired registration. Officer Lawrence Durbin arrived to provide backup. Two men sat in the front seat and a woman, Aleah Jenkins, in the back. The officers knew or became aware as they investigated that the two men in the front had prior convictions for drug offenses. After learning that Jenkins had a warrant involving a prior methamphetamine offense and was subject to arrest, the officers handcuffed Jenkins and put her in Officer Durbin’s cruiser. The officers searched the vehicle but did not find any drugs.
Inside Officer Durbin’s cruiser, Jenkins vomited. An officer called for paramedics. Officer Durbin asked Jenkins if she was withdrawing. Jenkins replied that she was sick, and added, “I’m pregnant.” In response to an officer asking whether Jenkins had eaten anything, Jenkins responded, “Mmm-mm,” while shaking her head slightly from side to side. The call to paramedics was canceled.
Officer Durbin drove Jenkins to a police station which took over an hour. On several occasions, Jenkins groaned and screamed. At one point she screamed loudly, “[P]lease help me, please help me!” and “[O]h my [G]od, please, stop, stop, stop!” Officer Durbin stopped the car to check on her. Jenkins stated that she was sick. When she again screamed, Officer Durbin told her to “[k]nock it off.” Jenkins shouted, “[H]elp me[,] please.” Officer Durbin responded, “[Y]ou’re fine,” and continued driving until arriving three minutes later at the police station. On arrival, Officer Durbin opened the rear door. Jenkins was lying face down across the backseat. Jenkins screamed and took several quick, audible breaths, to which Officer Durbin responded: “Stop hyperventilating . . . you are doing [that] to yourself.” Officer Durbin then removed Jenkins from the cruiser to the pavement. Jenkins screamed and asked for help. Shortly thereafter, Officer Durbin and the other officer fingerprinted Jenkins as she lay on her side, handcuffed. Officer Durbin asked Jenkins if she still wanted water, and she responded at a normal volume: “Yes, please.” Jenkins was placed by Officer Durbin and another officer back inside the cruiser. Approximately eleven and a half minutes later, Officer Durbin opened the rear door of his cruiser. Jenkins had fallen unconscious. Officer Durbin immediately removed her from the car and radioed for paramedics, and soon after began administering CPR. However, Jenkins fell into a coma, and died nine days later.
Jenkins’ minor son, J.K.J., brought constitutional claims against the City of San Diego and Officer Durbin and another officer. The amended complaint asserted causes of action under 42 U.S.C. section 1983. Against the officers, J.K.J. asserted separate causes of action for denial of medical care and deprivation of life without due process.
The District Court dismissed J.K.J.’s amended complaint with prejudice, finding that J.K.J.’s cause of action failed to state a plausible claim for denial of medical care under the Fourteenth Amendment. The District Court stated that the claim additionally failed under the Fourth Amendment reasonableness standard. The District Court also held that the officers were entitled to qualified immunity. The District Court dismissed the deprivation of life claim as duplicative of the claim for denial of medical care. J.K.J. appealed.
Held: The Ninth Circuit Court of Appeals noted that pretrial detainees in state custody “have a constitutional right to adequate medical treatment” under the Fourteenth Amendment.[1] “[C]laims for violations of [this] right . . . [are] evaluated under an objective deliberative indifference standard.”[2] Such a violation exists where the defendant made an intentional decision which put a decedent at substantial risk of suffering serious harm; the defendant did not take reasonable available measures to abate that risk, even though a reasonable official in the circumstances would have appreciated the high degree of risk involved—making the consequences of the defendant’s conduct obvious; and by not taking such measures, the defendant caused the decedent’s injuries.”[3] Regarding the third element, the Court noted that “the defendant’s conduct must be objectively unreasonable, a test that will necessarily turn on the facts and circumstances of each particular case.”[4]
The Court noted that Jenkins’ encounter with police began as a stop for an expired vehicle registration and that no drugs were found in the Cadillac. Moreover, the officers took reasonable steps to investigate the possibility that Jenkins had ingested something: they asked her directly. Jenkins not only denied it, but she provided alternative explanations for having vomited that were plausible on their face. Considering Officer Durbin’s drive to the police station with Jenkins, the Court observed that when Officer Durbin asked what was wrong after one of Jenkins’s outbursts, Jenkins never revealed that she had ingested anything or requested medical care. The Court stated that Officer Durbin monitored her behavior, stopping to check on her after she spent about ten minutes in silence. At that point, the officer found Jenkins lying face-down across the backseat. He asked her to stay awake. She repeated that she was sick but did not reveal that she had taken drugs. They arrived at the station approximately three minutes later. At the station, when Officer Durbin asked Jenkins if she still wanted water, Jenkins calmly responded, “Yes, please.” When Officer Durbin ultimately discovered that Jenkins had lost consciousness, he immediately summoned paramedics and performed CPR.
The Court concluded that these facts did not plausibly allege objective unreasonableness or objective deliberate indifference akin to reckless disregard. Although in hindsight it was clear that Jenkins had a serious medical need, it was not plausible to infer that “a reasonable official in [Officer Durbin’s] circumstances would have appreciated the high degree of risk involved—making the consequences of [his] conduct obvious” before Jenkins fell unconscious.[5] When she did, Officer Durbin promptly radioed for help. The Court concluded that until that time, Officer Durbin’s conduct was not objectively unreasonable, considering Jenkins’ prior statements—including her alternative explanations for having vomited, her denial that she had ingested anything, and her insistence that she did not want to go to jail. The Court stated that it could not say that Officer Durbin behaved objectively unreasonably or with objective deliberate indifference in failing to recognize, sooner than he did, that Jenkins had a serious medical need. The Ninth Circuit accordingly held that the amended complaint failed to allege facts that would demonstrate either objective unreasonableness or objective deliberate indifference. The Court also found that the officers were entitled to qualified immunity because they did not violate any clearly established law. The Ninth Circuit Court of Appeals thus concluded that the District Court did not err in dismissing J.K.J.’s amended complaint, and accordingly affirmed.
For a more detailed discussion of this case, please see Client Alert Vol. 36, No. 25, available at www.jones-mayer.com.
FIREARMS
California statute prohibiting possession of large-capacity magazines is a reasonable fit for the important government interest of reducing gun violence.
Duncan v. Bonta, 2021 U.S. App. LEXIS 35256 (9th Cir. Nov. 30, 2021)
Facts: In 2016, the California legislature enacted Senate Bill 1446, and California voters adopted Proposition 63, the “Safety for All Act of 2016.” Intended as a response to mass shootings in California and throughout the nation, these laws amended Penal Code section 32310 to prohibit possession of large-capacity magazines, defined as those that can hold more than ten rounds of ammunition. California law allows an owner of a large-capacity magazine to modify the magazine so that it accommodates ten rounds or fewer; to sell the magazine to a firearms dealer; to remove the magazine to another state; or to turn it over to a law enforcement agency for destruction.[6] The law provides several exceptions to the ban on large-capacity magazines, including possession by active or retired law enforcement officers, security guards for armored vehicles, and holders of special weapons permits.
In 2017, Plaintiffs, including individuals who previously acquired large-capacity magazines lawfully, brought a facial challenge to Section 32310. They argued that the statute violated the Second Amendment, as well as other amendments. The District Court preliminarily enjoined the State of California from enforcing Section 32310. A two-judge majority of the Ninth Circuit Court of Appeals affirmed the preliminary injunction. The District Court subsequently granted summary judgment to Plaintiffs on the Second Amendment claim and permanently enjoined Defendant Attorney General for the State of California (then Xavier Becerra, and currently Rob Bonta), from enforcing the law. On appeal, a divided Ninth Circuit panel affirmed the District Court’s grant of summary judgment as to the Second Amendment claim. The Court of Appeals granted rehearing en banc and vacated the panel’s opinion.
Held: The en banc Ninth Circuit Court of Appeals noted that the Second Amendment states: “A well-regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.” U.S. Const. amend. II. The Second Amendment “protects a personal right to keep and bear arms for lawful purposes, most notably for self-defense within the home.” McDonald v. City of Chicago, 561 U.S. 742, 780 (2010). The Second Amendment “is fully applicable to the States.” Id. at 750. The Court stated that in the District of Columbia v. Heller, 554 U.S. 570, 574, 628 (2008), the United States Supreme Court had declined to define the applicable framework for addressing Second Amendment claims, holding that the District of Columbia’s laws that generally banned possession of handguns failed “[u]nder any of the standards of scrutiny that we have applied to enumerated constitutional rights.” Id. at 628.
The Court stated that “faithfully adher[ing] to the Supreme Court’s guidance in Heller and McDonald,” the Ninth Circuit had created a two-step framework to review Second Amendment challenges. The Court explained that the first step asks “if the challenged law affects conduct that is protected by the Second Amendment.”[7] If not, then the law is constitutional. If, however, the law implicates the Second Amendment, a court must next choose and apply an appropriate level of scrutiny.
The en banc Court stated that if the Supreme Court had intended to foreclose the application of heightened scrutiny framework, it could have so held. Instead, and to the contrary, the Supreme Court had referred specifically to “the standards of scrutiny that we have applied to enumerated constitutional rights” and held that application of heightened scrutiny is unnecessary when the law at issue “would fail constitutional muster” under any standard of scrutiny.[8]
Applying the two-step framework here, the Court assumed, without deciding, that Section 32310 implicated the Second Amendment, and joined its sister circuits that had unanimously applied intermediate scrutiny to other laws banning or restricting large-capacity magazines. The Court determined that intermediate scrutiny applied because the ban imposed only a minimal burden on the core Second Amendment right to keep and bear arms. Applying intermediate scrutiny, the Court held that Section 32310 was a reasonable fit for the important government interest of reducing gun violence. The Court explained that the statute outlawed no weapon, but only limited the size of the magazine that may be used with firearms, and the record demonstrated (a) that the limitation interfered only minimally with the core right of self-defense, as there was no evidence that anyone ever had been unable to defend his or her home and family due to the lack of a large-capacity magazine; and (b) that the limitation saved lives. The Court observed that in the past half-century, large-capacity magazines had been used in approximately three-quarters of gun massacres with 10 or more deaths and in 100 percent of gun massacres with 20 or more deaths, and more than twice as many people had been killed or injured in mass shootings that involved a large-capacity magazine as compared with mass shootings that involved a smaller-capacity magazine. The en banc Court concluded that the ban on legal possession of large-capacity magazines reasonably supported California’s effort to reduce the devastating damage wrought by mass shootings. The en banc Ninth Circuit Court of Appeals accordingly reversed the three-judge panel’s decision and remanded for entry of judgment in favor of Attorney General Bonta.
For a more detailed discussion of this case, please see Client Alert Vol. 36, No. 26, available at www.jones-mayer.com.
EMPLOYMENT
A. An employer’s response to a third party’s unwelcome sexual advances toward an employee can independently create a hostile work environment.
Fried v. Wynn Las Vegas, LLC, 2021 U.S. App. LEXIS 34830 (9th Cir. Nov. 18, 2021)
Facts: Vincent Fried was employed by Wynn Las Vegas in the Wynn Hotel as a manicurist in a hotel salon from April 2005 to July 2017. In June 2017, Fried was assigned to provide a pedicure to a male customer who sexually propositioned Fried. Fried immediately went to the salon’s front desk, reported the customer’s conduct to his manager, Sarah Barajas, and stated that he no longer felt comfortable interacting with the customer. Barajas did not take any immediate corrective action, but instead directed Fried to return to the customer and complete his pedicure. Fried complied, though he felt “horrible” and “uncomfortable” doing so. During this time, the customer made several inappropriate sexual references to Fried. Afterward, Fried attempted two times to discuss the incidents with Barajas, but both times Barajas expressed that she was busy with emails to review.
Fried sued Wynn in a federal District Court, alleging, in part, that the salon created a hostile work environment in violation of Title VII of the Civil Rights Act of 1964.[9] The District Court granted Wynn’s motion for summary judgment based on Fried’s hostile work environment. Fried appealed.
Held: The Ninth Circuit Court of Appeals explained that Title VII of the Civil Rights Act of 1964 prohibits sex discrimination, including sexual harassment, in employment.[10] To establish he was subjected to a hostile work environment, Fried was required to prove that: (1) he was subjected to verbal or physical conduct of a sexual nature; (2) the conduct was unwelcome; and (3) the conduct was sufficiently severe or pervasive to alter the conditions of employment and create an abusive working environment.[11] Fried alleged that his manager’s response, after learning about the male customer’s conduct, independently created a hostile work environment.
The Court explained that it is well established among all federal circuits that an employer can create a hostile work environment by failing to take immediate and corrective action in response to a coworker’s or third party’s sexual harassment or racial discrimination that the employer knew or should have known about.[12] The Ninth Circuit held that an employer’s response to a third party’s unwelcome sexual advances toward an employee can independently create a hostile work environment. Here, the Court found that Barajas’s response to Fried’s report that the customer had sexually propositioned him should have prevented entry of summary judgment in Wynn’s favor because Barajas not only failed to take immediate corrective action, but also directed Fried to return to the customer and complete his pedicure.[13] The Court concluded that a reasonable factfinder could decide that Wynn Las Vegas created a hostile work environment at the salon where Fried worked. The Ninth Circuit accordingly reversed the District Court’s summary judgment against Fried on his claim for hostile work environment, and remanded.
B. Summary judgment properly granted because employee did not present evidence that employer’s reasons for terminating employment were pretextual.
Wilkin v. Cmty. Hosp. of Monterey Peninsula, 71 Cal. App. 5th 806 (4th Dist. 2021)
Facts: Kimberly Wilkin’s employment with the Community Hospital of the Monterey Peninsula (the “Hospital”) began in 2005. Throughout her employment, she worked as a registered nurse and was responsible for delivering direct nursing care to patients. In January 2018, the Hospital terminated Wilkin’s employment after discovering that she had violated the Hospital’s policies by repeatedly failing to accurately document her handling and administration of controlled substances, and because of Wilkin’s chronic attendance issues. Wilkin sued the Hospital, alleging, among other things, that her discharge constituted disability discrimination and retaliation under the California Fair Employment and Housing Act (“FEHA”), Government Code section 12900 et seq.
Over a year after Wilkin filed her complaint, the Hospital filed a motion for summary judgment. The trial court concluded that the Hospital carried its burden of producing evidence showing its decision was based on legitimate, nondiscriminatory reasons. After Wilkin did not produce any evidence showing the Hospital’s reasons were fabricated or otherwise pretextual, the trial court concluded that a reasonable trier of fact could not find in favor of Wilkin on any of her claims and granted summary judgment in favor of the Hospital. Wilkin filed a notice of appeal.
Held: The California Fourth District Court of Appeal explained that if a defendant employer’s motion for summary judgment “relies in whole or in part on a showing of nondiscriminatory reasons for the discharge, the employer satisfies its burden as moving party if it presents evidence of such nondiscriminatory reasons that would permit a trier of fact to find, more likely than not, that they were the basis for the termination. [Citations.] To defeat the motion, the employee then must adduce or point to evidence raising a triable issue, that would permit a trier of fact to find by a preponderance that intentional discrimination occurred. [Citations.]” (Kelly v. Stamps.com Inc. (2nd Dist. 2005) 135 Cal.App.4th 1088; Scotch v. Art Institute of California (4th Dist. 2009) 173 Cal.App.4th 986, 1005).
The Fourth District concluded that summary judgment was properly granted because the record did not show that a triable issue of fact existed, and affirmed. The Court explained that the Hospital carried its burden of producing evidence showing its employment termination decision was based on legitimate, nondiscriminatory reasons. The Hospital produced undisputed evidence, including Wilkin’s deposition testimony, showing she had violated policies governing the handling of medication, and, for over a year before she was discharged, had been regularly counseled for her chronic absenteeism and other issues. Moreover, Wilkin did not produce any evidence showing those reasons were fabricated or otherwise pretextual. Wilkin’s retaliation claims likewise failed to show that the Hospital’s legitimate, nonretaliatory reasons for her discharge were used as a pretext.
MARIJUANA
The decision in Raich v. Gonzales is still binding Ninth Circuit precedent, and in line with that decision, there is no fundamental right to use medical marijuana.
United States v. Langley, 2021 U.S. App. LEXIS 34219 (9th Cir. Nov. 16, 2021)
Facts: In 2017, Richard Langley pleaded guilty to possession of child pornography. The District Court sentenced Langley to time served and a ten-year term of supervised release. As required by statute, 18 U.S.C. section 3583(d), the conditions of Langley’s supervised release included that he “not commit [a] federal, state or local crime,” “not illegally possess a controlled substance,” and “refrain from any unlawful use of a controlled substance.” The District Court denied Langley’s motion to amend the supervised release conditions to permit him to use medical marijuana as allowed by California state law.
Langley renewed the motion in 2020, supporting his motion with a report from a physician asserting that marijuana was the best medical solution for Langley’s pain issues stemming from a motorcycle accident that resulted in the amputation of his right leg below the knee. The District Court again denied the motion. Langley appealed.
Held: The Ninth Circuit Court of Appeals explained that if a court places a defendant on a term of supervised release, it is required by statute to “order, as an explicit condition of supervised release, that the defendant not commit another Federal, State, or local crime during the term of supervision,” “that the defendant not unlawfully possess a controlled substance,” and that “the defendant refrain from any unlawful use of a controlled substance.” 18 U.S.C. section 3583(d) (Italics added.). Under the federal Controlled Substances Act (“CSA”), marijuana is an enumerated controlled substance.[14] The Ninth Circuit thus determined that the applicable federal statutes precluded the District Court from granting Langley’s motion,[15] and noted that unless Langley had a constitutional right to use medical marijuana, the District Court did not err in denying Langley’s motion.
Langley argued that he had a fundamental constitutional right under the Fourteenth Amendment’s Due Process Clause to use medical marijuana. The Ninth Circuit held that it was bound by Raich v. Gonzales, 500 F.3d 850 (9th Cir. 2007), which held that “federal law does not recognize a fundamental right to use medical marijuana prescribed by a licensed physician to alleviate excruciating pain and human suffering.” Id. at 866. Langley argued that the Court was no longer bound by Raich’s conclusion in light of the increasing number of states that no longer criminalize the use of medical marijuana for medical purposes. However, the Circuit Court explained that even if state laws decriminalizing marijuana could constitute additional evidence under the test applied in Raich for determining whether a right is protected by the Due Process Clause, the Ninth Circuit was bound by the holding in Raich until it was overturned by a higher authority. The Court accordingly affirmed.
MISCELLANEOUS
Dismissal was improper in a defamation suit because it was plausible that statements about the police were “of and concerning” plaintiff officers in particular.
Miller v. Sawant, 2021 U.S. App. LEXIS 33399 (9th Cir. Nov. 10, 2021)
Facts: In February 2016, Seattle police officers Scott Miller and Michael Spaulding (“Plaintiffs”) shot and killed a black man named Che Taylor while attempting to make an arrest. A few days after the shooting, Kshama Sawant, a member of the Seattle City Council, made remarks to a crowd in front of the Seattle Police Department regarding “[t]he brutal murder of Che Taylor, just a blatant murder at the hands of the police,” suggesting race was a factor. She called for the Police Department to be held “accountable for their reprehensible actions, individual actions. We need justice on the individual actions and we need to turn the tide on the systematic police brutality and racial profiling.” In June 2017, after another fatal police shooting, Sawant repeated her allegation that “Che Taylor was murdered by the police.”
Plaintiffs sued Sawant in 2018, arguing that she had defamed them by falsely accusing them of racial profiling and murder. The District Court dismissed Plaintiffs’ defamation claims on the ground that their third amended complaint failed adequately to allege that Sawant’s remarks were “of and concerning” them, as required to state a claim for defamation under Washington law.[16]
Held: The Ninth Circuit Court of Appeals reversed and remanded. In dismissing Plaintiffs’ claims, the District Court had reasoned that Sawant’s statements did not target or single out Plaintiffs or any specific officers, but instead spoke to broader issues of police accountability. The Ninth Circuit explained that at most, however, the District Court had identified one reasonable interpretation of Sawant’s words, not the only reasonable interpretation. The Ninth Circuit stated that where a communication is capable of two meanings, one defamatory and one not, it is for a jury, not a judge, to determine which meaning controls. The Court explained that at this stage of the case, a “court’s inquiry is not to determine if the communications may have an innocent meaning but rather to determine if the communication reasonably carries with it a defamatory meaning.”[17]
The Ninth Circuit found that Sawant’s own words suggested that her remarks were directed not only at the police generally, but also at the individual officers involved in the shooting. She told the crowd that the shooting constituted “a blatant murder at the hands of the police,” and she called for the Seattle Police Department to be held accountable “for their . . . individual actions.” Second, the complaint plausibly alleged that some of those who read or heard Sawant’s remarks – Plaintiffs’ families, friends, and colleagues, as well as members of the general public – knew that Plaintiffs were the officers involved in the shooting. Third, the complaint plausibly alleged that these readers and listeners understood that Sawant’s remarks were directed at Plaintiffs. The Court concluded that Sawant’s words reasonably carried with them the defamatory meaning Plaintiffs had assigned to them, and held that under the governing federal pleading standard, Plaintiffs plausibly alleged that Sawant’s communications were of and concerning them.
[1] Sandoval v. Cnty. of San Diego, 985 F.3d 657, 667 (9th Cir. 2021).
[2] Gordon v. Cnty. of Orange, 888 F.3d 1118, 1124-25 (9th Cir. 2018).
[3] Id. at 1125.
[4] Id. (quoting Castro v. Cnty. of Los Angeles, 833 F.3d 1060, 1071 (9th Cir. 2016)) (alteration and internal quotation marks omitted).
[5] Gordon, 888 F.3d at 1125.
[6] Penal Code sections 16740(a), 32310(d)(1)- (3).
[7] Young v. Hawaii, 992 F.3d 765, 783 (9th Cir. 2021) (en banc), petition for cert. filed, (U.S. May 11, 2021) (No. 20-1639).
[8] Heller, 554 U.S. at 628-29.
[9] 42 U.S.C. section 2000e et seq.
[10] 42 U.S.C. section 2000e-2(a)(1); Meritor Sav. Bank, FSB v. Vinson, 477 U.S. 57, 65-66 (1986).
[11] See Little v. Windermere Relocation, Inc., 301 F.3d 958, 966 (9th Cir. 2002).
[12] See, e.g., Folkerson v. Circus Enters., Inc., 107 F.3d 754, 756 (9th Cir. 1997).
[13] See Christian v. Umpqua Bank, 984 F.3d 801, 809 (9th Cir. 2020) (holding that the Circuit considered “all the circumstances,” including whether the discriminatory conduct was “physically threatening or humiliating” (quoting Davis v. Team Elec. Co., 520 F.3d 1080, 1095 (9th Cir. 2008)).
[14] See 21 U.S.C. section 812(b)-(c) (“Marihuana” listed on Schedule I of controlled substances).
[15] See 18 U.S.C. section 3583(d), 21 U.S.C. section 812(b)-(c).
[16] Under Washington law, a plaintiff in a defamation case must “prove[, among other things,] that the communication was made of and concerning him.” Sims v. Kiro, Inc., 20 Wn. App. 229, 580 P.2d 642, 645 (Wash. Ct. App. 1978).
[17] Church of Scientology of California v. Flynn, 744 F.2d 694, 696 (9th Cir. 1984) (quoting Forsher v. Bugliosi, 608 P.2d 716, 722 (Cal. 1980)).
