Courtesy of James R. Touchstone of Jones & Mayer
A. California’s ten-year ban on possession of firearms after a conviction of misdemeanor domestic violence is constitutional.
Fortson v. Los Angeles City Attorney’s Office, 852 F.3d 1190 (9th Cir. 2017)
Facts: In September 2009, Benjamin Fortson was convicted of misdemeanor domestic abuse in violation of Penal Code section 243. Under California law, a Section 243 conviction triggered Penal Code section 12021(c)(1), which makes it a misdemeanor to own, purchase, receive, or have in one’s custody or control any firearm for ten years. However, because Fortson worked as an armed security guard, the sentencing court entered a modification that specifically allowed him to use and keep a weapon while at work. In April 2011, after Fortson had fulfilled the obligations of his sentence, the court vacated his conviction, terminated his probation and protective order, and dismissed the case.
Fortson, apparently believing the ten year firearms ban was lifted because his case had been dismissed, subsequently acquired two guns and some ammunition. An automated nightly computer check by the California Bureau of Firearms (“BOF”) flagged Fortson as an unlawful possessor of firearms. In August 2011, BOF and Los Angeles Police Department (“LAPD”) officers went to Fortson’s residence and demanded his weapons. Fortson objected, arguing that he was allowed to keep and possess the firearms under his sentencing order. Despite Fortson’s objections and after restraining him, officers seized the weapons and ammunition. Fortson was charged with violating the ten-year ban on owning firearms and ammunition, but the charges were eventually dropped.
In 2012, Fortson filed an action under 42 U.S.C. section 1983. He alleged that law enforcement officials violated his Second Amendment rights by seizing firearms and ammunition kept in his home and then prosecuting him for the unlawful possession of firearms and ammunition. He also argued the ten-year ban was facially unconstitutional, or, in the alternative, the ban was unconstitutional as applied to him since the sentencing court did not specifically notify him that the firearm ban lasted ten years.
Held: The Ninth Circuit Court of Appeals, noting its decision was controlled by its decision in United States v. Chovan, wherein it upheld a more restrictive federal lifetime ban for those convicted of misdemeanor domestic violence, upheld the ten-year ban. In Chovan, the Court had determined that the lifetime ban on those convicted of domestic violence was substantially related to the important government interest of preventing domestic gun violence. Noting that California’s ten-year ban advances the same governmental interest and is substantially related to that interest, and that the ban is less restrictive and less burdensome than the federal lifetime ban upheld in Chovan, the Court upheld the ten-year ban. The Court also held that the ban was valid as applied to Fortson because the firearms prohibition attached automatically and lack of notice about the ban was not a defense.
B. Emergency aid exception to warrant requirement justified warrantless entry and search of home.
People v. Pou, 2017 Cal. App. LEXIS 385 (Cal. App. 2d Dist. Apr. 26, 2017)
Facts: In June 2014, Los Angeles Police Department (“LAPD”) officers received a radio call about a “screaming woman” and “distressed moaning” at 2314 Juniper Drive. Upon arrival at the address, the officers met with their field supervisor. The two officers approached the front door, and heard several people, both male and female, arguing very loudly inside. The officers also observed from outside two males gesturing as though they were arguing. One officer knocked, identifying himself as an officer several times. Eventually, Alexander Pou and another male answered the door. An officer informed him about the radio call about the screaming woman and told him the officers needed to enter to make sure people inside were okay, consistent with their training and experience. Over Pou’s repeated objections, the officers entered.
Inside, the officers saw two women who did not appear in distress on the couch, and then searched the rest of the large house for more occupants to check on their well-being. Following standard procedures and looking into closets and other rooms of the residence, the officers noticed what they believed to be narcotics in one of the closets. Eventually, narcotics officers obtained a search warrant and seized ecstasy, cocaine, money, scales and a handgun from Pou’s home.
During their follow-up investigation, the officers learned that they had gone to the wrong house, as the reporting party indicated that his report pertained to the house across the street from 2314 Juniper Drive. Although the incident recall printout indicated that the incident was across from 2314 Juniper Drive, the responding officers only heard a radio broadcast for 2314 Juniper Drive, not a location across from 2314 Juniper Drive.
Pou was charged with possession of cocaine for sale and possession of ecstasy for sale. Pou moved to suppress the drug evidence, and the trial court denied his motion. Pou ultimately pled guilty to the ecstasy charge. Pou appealed. On appeal, Pou argued the trial court erred in denying his motion to suppress the evidence because the officers entered his residence without a warrant or permission when they observed the narcotics.
Held: The Second District Court of Appeal held that the officers’ entry into Pou’s home and search of the premises for occupants therein was reasonably justified by the emergency aid exception to the warrant requirement. The Court explained that under the emergency aid exception to the warrant requirement, the officers could enter Pou’s home without a warrant if they had an objectively reasonable basis to believe that someone inside the home might need immediate aid.
The officers had received information about a screaming woman and distressed moaning at the location, and, upon their arrival, heard loud arguing and male and female voices, and saw two males gesturing as if they were arguing. Based on these circumstances, the Court concluded that it was objectively reasonable for an officer to believe that immediately entry was necessary to render emergency aid to a screaming woman inside or to prevent a perpetrator from inflicting additional harm to that victim or someone else inside the home. The Court noted that the delay in occupants answering the door bolstered the objective reasonableness of the decision to enter and search the home.
Further, because the officers did not find the screaming woman at any point in the search, they were entitled to continue their search anywhere she may have been located inside, including the closet where the drugs were eventually found. Finally, the Court explained that the fact that the officers mistakenly arrived at the wrong house did not undermine the reasonableness of their decision to enter and search based on the information they had at the time. The officers were informed by radio dispatch that the screaming woman was at 2314 Juniper Drive, and had no reason to question the accuracy of that information. Thus, because the initial entry and search were justified under the emergency aid exception, the Court affirmed the trial court’s decision.
A common butter knife can be a “deadly weapon” within the meaning of Penal Code section 245(a)(1).
In re B.M., 2017 Cal. App. LEXIS 363 (Cal. App. 2d Dist. Apr. 20, 2017)
Facts: B.M., a 17-year-old, was unable to get into her house after her mother changed the locks, so she entered through a window. B.M. went into her sister’s room, tried to pull her hair out, threw a phone at her, and left the room. She returned with a small butter knife that was metal and about six inches long. The blade was about three inches long. B.M. attacked her sister with the butter knife. B.M.’s sister tried to protect herself with her blanket. The knife struck the blanket multiple times near her sister’s legs as B.M. made a slicing motion while applying some pressure.
After B.M. left the room, her sister called the police. An officer arrived at the house and found B.M. outside. He asked B.M. to come closer to discuss what had happened. B.M. did so, explaining that she was very upset and blamed her sister for the changed locks. B.M. said that when her sister threatened to call the police, B.M. stabbed downward toward the blanket that her sister had used for protection with the intent of scaring her. Later, B.M. testified that the blade likely touched the blanket when her sister kicked her legs outward.
At her contested jurisdictional hearing, B.M. moved to exclude her statements to the officer, arguing the officer violated her Miranda v. Arizona rights by failing to inform her of her Miranda rights before detaining and questioning her. The juvenile court denied the motion. The juvenile court found that B.M. committed a felony assault with a deadly weapon in violation of Penal Code section 245(a)(1). B.M. appealed, contending that the butter knife was not a deadly weapon and further contending that the juvenile court erred in admitting the statements B.M. made to the police.
Held: The Second District Court of Appeal first determined, looking at the totality of the circumstances, that B.M. was not subjected to custodial interrogation, a prerequisite for Miranda violations. The officer did not arrest or handcuff B.M. and was the sole officer present. The questioning occurred outside the house and was not prolonged. The atmosphere was not coercive and the questions were not aggressive, confrontational, or accusatory. Therefore, the Court concluded B.M. was not subjected to custodial interrogation and thus Miranda warnings were not required.
The Court also concluded that the butter knife was a deadly weapon in this context. The Court explained that, as used in Penal Code section 245(a)(1), a “deadly weapon” is “any object, instrument, or weapon which is used in such a manner as to be capable of producing and likely to produce, death or great bodily injury.” Here, the butter knife could be used to slice or stab, even though it was not designed to slice or stab. The evidence showed the butter knife was used in a manner capable of producing great bodily injury. The Court explained that it did not matter that the victim was able to fend off great bodily injury from the butter knife with her blanket, that B.M. was not adept at using the butter knife to actually inflict great bodily injury, or that B.M. was not successful in inflicting great bodily injury. An assault with a deadly weapon is complete when the defendant, with the required intent, uses an object in a manner which is capable of producing great bodily injury upon the victim. Thus, the Court affirmed the juvenile court’s determination.
EXCESSIVE FORCE CLAIMS
Dismissal under Penal Code section 1203.4 does not invalidate a conviction for purposes of removing Heck v. Humphrey bar.
Baranchik v. Fizulich, 2017 Cal. App. LEXIS 356 (Cal. App. 2d. Dist. Apr. 19, 2017)
Facts: In September 2008, Eric Baranchik, Phillip Baranchik, and Tiffeney Pyle were involved in an incident at a bar in Redondo Beach. The incident was reported to the Redondo Beach Police Department (“RBPD”). A dispatch was issued about a bar fight and RBPD Officer Fizulich responded to the dispatch. By the time Officer Fizulich arrived, he was informed that one of the participants had left the bar. Officer Fizulich detained Phillip Baranchik, who fit the description of the suspect involved in the bar fight, observing that Phillip had slurred speech and bloodshot, watery eyes. Officer Fizulich also smelled the odor of alcohol coming from Phillip.
While Officer Fizulich was with Phillip, Eric Baranchik and Tiffeney Pyle approached. Two other RBPD officers had also arrived on the scene. As Eric approached, he stated that Phillip was his brother and questioned what was going on. One of the officers fired his Taser at Eric, incapacitating him. Believing Pyle was not complying with her commands, another officer fired her Taser at Pyle. Phillip, Eric, and Pyle were taken into custody, and released by the next day.
Eric was charged with violations of: (1) Penal Code section 243(b) (battery against a peace officer); (2) Penal Code section 148(a)(1) (resisting, obstructing, or delaying a peace officer); and (3) Penal Code section 647(f) (public intoxication). At his jury trial, Eric argued that he was not guilty because the officer used excessive force by deploying his Taser on Eric. The jury was given an instruction on the issue of excessive force, which stated that the government had the burden of proving beyond a reasonable doubt that at least one of the RBPD officers involved in the incident was lawfully performing his or her duties as a peace officer, and that, if the government had not met that burden, the jury must find Eric not guilty of the charges of battery against a peace officer and resisting, obstructing, or delaying a peace officer.
The jury convicted Eric of resisting, obstructing, or delaying a peace officer in violation of Penal Code section 148(a)(1), and acquitted him of the other two charges. The appellate division of the superior court affirmed his conviction in August 2012, finding that the issue of excessive force was a question of fact that was properly resolved by the jury in rendering its verdict. In April 2014, the criminal trial court granted Eric’s petition to dismiss his criminal conviction under Penal Code section 1203.4.
In May 2012, Eric filed a civil complaint in state court, alleging the officer used excessive force in using his Taser on him. In June 2013, defendants filed a motion for summary judgment or adjudication, arguing that Eric’s conviction for violating Penal Code section 148 barred his excessive force claim. The judge granted defendants’ motion for summary adjudication.
After Eric’s criminal conviction was dismissed under Penal Code section 1203.4, Eric filed a motion in the civil case in November 2014, seeking to vacate the prior summary adjudication on the excessive force claim. He argued that circumstances had changed because his conviction had been dismissed and he was therefore no longer barred from pursuing his excessive force claim. The judge denied Eric’s motion to vacate the summary adjudication order and entered judgment in favor of defendants. Eric appealed.
Held: The Second District Court of Appeal concluded that Eric’s civil claim for excessive force was barred under Heck v. Humphrey because the criminal jury “necessarily found [the officer’s] conduct to be lawful and not an unreasonable use of force.” In reaching its determination, the Court, citing the California Supreme Court’s discussion in Yount v. City of Sacramento, explained that Heck bars a Section 1983 claim if it is “inconsistent with a prior criminal conviction or sentence arising out of the same facts, unless the conviction or sentence has been subsequently resolved in the plaintiff’s favor.” The Court explained that Heck requires a reviewing court to resolve three questions: (1) Was there an underlying conviction or sentence relating to the Section 1983 claim? (2) Would a judgment in favor of the plaintiff in the Section 1983 action “necessarily imply” the invalidity of the prior conviction or sentence? (3) If so, was the prior conviction or sentence already invalidated or otherwise favorably terminated?
Eric argued that defendants did not meet their burden of demonstrating that Eric’s excessive force claim, if successful, would “necessarily imply” the invalidity of his conviction under Penal Code section 148(a)(1) for resisting, obstructing, or delaying a peace officer. The Court of Appeal disagreed. The Court explained that the trial court had taken judicial notice of the relevant facts from Eric’s criminal trial and subsequent appeal before granting the motion for summary adjudication in favor of defendants. In those proceedings, Eric had argued that the officer had used excessive force, and the jury was instructed to find Eric not guilty if it found that the officer used unreasonable or unlawful force. However, the Court noted, the jury still convicted Eric of violating Penal Code section 148(a)(1), and the appellate division had rejected Eric’s argument that the officer was not engaged in the lawful performance of his duties as a peace officer. Therefore, the Court concluded, because the question of whether the officer had lawfully deployed the Taser was intertwined with the jury’s decision to convict Eric of violating Penal Code section 148(a)(1), his conviction inherently included a finding that the officer’s actions were lawful.
Eric also argued that the Heck bar no longer applied because his conviction was dismissed under Penal Code section 1203.4. The Court of Appeal disagreed, concluding that a dismissal under Penal Code section 1203.4 does not invalidate a conviction for purposes of preventing a plaintiff from bringing a civil action. The Court explained that a court, in determining whether a civil action is precluded by Heck, must consider whether a judgment in favor of the plaintiff would necessarily imply the invalidity of his or her conviction or sentence—if it would, the complaint must be dismissed “unless the plaintiff can demonstrate that the conviction or sentence has already been invalidated.”
To demonstrate a conviction or sentence has been invalidated or favorably terminated, a plaintiff must prove the conviction or sentence has been reversed on direct appeal, expunged by executive order, declared invalid by a state tribunal authorized to make such determination, or call into question be a federal court’s issuance of a writ of habeas corpus. The Court found that a dismissal under Penal Code section 1203.4 cannot be properly characterized as an expungement, and that Eric did not cite any case law that supported his argument that the dismissal under Section 1203.4 invalidated his conviction or qualified as a favorable termination similar to an executive pardon or a reversal on appeal. The Court concluded that even after the criminal trial court granted his petition under Section 1203.4, there remained a “conviction or sentence” that would necessarily be invalided if Eric were to prevail on his civil claim, and therefore Eric’s excessive force claim remained barred under Heck.
For a more detailed discussion of this case, please see Client Alert Vol. 32, No. 10, authored by James R. Touchstone and available at www.jones-mayer.com.