Case Summaries – February 2017

Case Summaries provided by James R. Touchstone and Brittany E. Roberto of Jones & Mayer

CONSTITUTIONAL LAW

  1. Officer’s Miranda v. Arizona warnings, though not verbatim, reasonably conveyed suspect’s rights to an attorney prior to custodial questioning.

United States v. Loucious, 847 F.3d 1146 (9th Cir. 2017)

FactsIn March 2015, Las Vegas Metropolitan Police Department (LVMPD) Officer Sherwood stopped a vehicle for speeding. Larry Loucious was a passenger in the back seat. During the stop, Sherwood learned that the driver had outstanding arrest warrants. Sherwood called for backup, intending to arrest the driver and search the vehicle. While waiting for backup to arrive, Sherwood collected the passengers’ identifications. Soon after, Officer Davis arrived and ran a records check on the passengers’ identifications, which revealed that Loucious also had an outstanding warrant for his arrest. The officers removed the driver and Loucious from the vehicle and placed them under arrest.

Sherwood then searched the vehicle and found a revolver in the back seat close to where Loucious had been sitting. The officers obtained a search warrant and seized the firearm.

After the arrest, an officer questioned Loucious. Before the custodial interrogation, the officer read Loucious the following warnings:

You understand you have the right to remain silent. You understand that anything you say can be used against you in a court of law. You have the right to the presence of an attorney during questioning and if you cannot afford an attorney, one will be appointed before questioning. Do you understand those rights?

After receiving the Miranda v. Arizona warnings, Loucious admitted touching the seized revolver a few days earlier.

In April 2015, a federal grand jury indicted Loucious for possession of a firearm as a convicted felon. Loucious filed motions to suppress the gun and the statements he made during the custodial interrogation. He argued the Miranda warnings were deficient because they did not advise him that he had the right to consult with an attorney before questioning. The district court denied the motion to suppress the firearm and granted the motion to suppress the custodial statements. The United States appealed the order granting suppression.

Held: The Miranda warnings that the officers gave Loucious adequately conveyed the substance of the warning that Loucious had the right to consult with an attorney before questioning. In reaching its conclusion, the Ninth Circuit explained that even though Loucious was not explicitly informed of that right, the right was reasonably to be inferred from the warnings that were made explicit.

The Court cited Miranda’s requirement that a suspect be told, before questioning, that “he has the right to remain silent, that anything he says can be used against him in a court of law, that he has the right to the presence of an attorney, and that if he cannot afford an attorney one will be appointed for him prior to any questioning if he so desires.” The Court noted that the Supreme Court has not required a precise formulation of the warnings, but instead, the inquiry is whether the warnings adequately convey to the suspect his rights as required by Miranda.

Although Loucious argued the warnings were deficient because they did not convey his right to consult with an attorney prior to questioning, the Court, citing prior Ninth Circuit and Supreme Court cases where Miranda warnings were challenged, concluded the Miranda warnings given by LVMPD conveyed the substance of the warning that Loucious could consult with an attorney prior to questioning. Despite Loucious’s argument that the warnings could only be understood to suggest that an attorney could be appointed for the sole purpose of being present during questioning, the Court found the combined warnings – that if he could not afford an attorney one would be appointed before questioning and that he had the right to the presence of an attorney during questioning – taken together sufficiently conveyed that Loucious had the right to consult with an attorney before questioning.

Lastly, the Court stated that although Supreme Court case law does not require verbatim recitation of the Miranda warnings, it also does not prohibit a verbatim recitation. It noted that police can ensure that the Miranda requirements are fulfilled if they make a verbatim recitation of the warnings.

Because the Miranda warnings adequately conveyed to Loucious his right to consult with an attorney before questioning, the Court reversed the district court’s order suppressing Loucious’s statements.

 

 2.  Inevitable discovery doctrine did not justify warrantless search where police obtained all of their information about where firearms registered to the defendant could be located and what to seize from his home in violation of the defendant’s constitutional rights.

People v. Superior Court (Corbett), 8 Cal. App. 5th 670 (2d Dist. 2017)

FactsIn June 2014, Sandra Bullock reported an intruder in her home. Los Angeles Police Department (LAPD) officers arrived at 6:35 a.m. They arrested Joshua Corbett inside Bullock’s home and took him into custody. At the time of his arrest, Corbett possessed photos of Bullock, a letter addressed to her, a notebook with multiple entries addressed to her, and a Utah concealed weapons permit, though he was unarmed.

LAPD Officer Juan Rodriguez obtained an emergency protective order (EPO) and served it on Corbett at 12:08 p.m. the same day. Corbett remained in custody. The next morning, Detective Jeffrey Dunn questioned Corbett in jail in the presence of two other detectives and a psychologist. Before the interrogation, Dunn received Corbett’s arrest records, the face sheet of the EPO, and a California Law Enforcement Telecommunication System (CLETS) document in response to an automated firearm system inquiry. The CLETS report revealed that handguns were registered to Corbett. Information available online relating to the EPO revealed Corbett had certain restrictions pursuant to the EPO, including the restriction from possessing, owning, or having access to any firearm. Dunn said he based the interview on the information found online.

By the time of the questioning, Corbett had been in custody for approximately 30 hours.  He was handcuffed during questioning and had not been given the chance to make a phone call.

At the start of the interrogation, Corbett was advised of his Miranda v. Arizona rights, but not asked whether he wanted to waive them. The police asked Corbett whether he wanted to talk about what happened “with Sandy.” Corbett said, “Not—not really. I don’t want to talk about it. No.” When Dunn asked again, Corbett repeated that he did not want to talk about it. Dunn asked if Corbett would be willing to talk off the record. Corbett again repeated that he did not want to talk about it. Dunn sought to get a response by mentioning potential felony burglary charges against Corbett. Corbett responded that he knew what he did and he deserved to be punished, and again stated, “I don’t want to talk about it.”

Dunn then mentioned the EPO and firearms, seeking confirmation that Corbett had “a bunch of guns,” to which Corbett responded, “Mmnh, mmnh.” Dunn presented Corbett with a choice: either Corbett could give his permission for the police to go to Corbett’s residence to retrieve the guns, or the police would obtain a search warrant for Corbett’s residence and search the entire location until finding the weapons that Dunn said the police knew were there. Corbett again responded, “Mmnh, mmnh.” When Dunn pressed further about whether Corbett would tell the police where the guns were and how they could retrieve them, Corbett told the police to do what they had to do. When Dunn asked whether Corbett lived with his parents, Corbett said no, and stated he did not want to talk about it. In response to a question from Dunn, Corbett indicated he did not want to talk about anything.

Dunn proceeded to question Corbett extensively, referencing Corbett’s mental health and Corbett’s letter and notes to Bullock. During this questioning, Dunn repeatedly returned to the subject of the guns, seeking to elicit Corbett’s permission to search for the guns at his residence and information about the specific location of the guns. In response, Corbett merely repeated his refusal to talk, made unclear sounds, or was silent. During the interrogation, Corbett also requested a phone call, stating that he had not yet had a phone call, but Dunn told him he could make a call after the interrogation and continued his questioning.

After Dunn threatened that things would get much worse if Corbett did not provide him with information, Corbett began answering questions relating to his entry into Bullock’s house. Finally, Corbett disclosed the location of the guns at his home address. He also described two gun safes, and gave the combinations to the safes and the room in which the safes were stored. The interrogation was recorded up to this point. The interrogation ended an estimated ten minutes later, during which time Corbett signed a consent form giving the police permission to search his home for the guns.

The police searched Corbett’s home without a warrant later that day. Before the search, police believed Corbett legally owned eight firearms. They were not aware of any illegal firearms, ammunition, or gun-related activity. However, during the search, they found and seized illegal weapons and a “large amount” of ammunition. The seized items were the basis of 24 of the 26 charges filed against Corbett, which included various charges relating to illegal possession of machine guns, assault weapons, and destructive devices (illegal ammunition).

The following day, two days after Corbett was arrested, the police obtained a warrant to search an additional gun safe that Corbett did not mention but that they saw during the first search. Police were looking for a weapon known to be registered to Corbett that they did not find during the initial search, and wanted to also seize any other firearms located inside the safe. The affidavit submitted in support of the application for the search warrant outlined the crime Corbett had committed, information police found in the firearms registry relating to Corbett’s firearms, the EPO Corbett was served with, the consent Corbett gave during the police interview for search of his residence, information about the firearms and ammunition recovered during the initial search (including illegal firearms), the fact that police recovered all but one of the firearms registered to Corbett, the third gun safe observed during the initial search, and the belief that the final weapon and other firearms would be found in the gun safe. The application did not include any assertion or any facts demonstrating a fair probability that evidence pertaining to the offenses of stalking or burglary would be found at Corbett’s residence.

Corbett moved to suppress the statements he made during the interrogation as well as the evidence recovered during the initial search of his home. The People did not oppose the motion to suppress the statements obtained in violation of Corbett’s right to remain silent. The trial court suppressed the evidence retrieved during the initial search of Corbett’s house, and the People petitioned the Court of Appeal for a writ of mandate to compel the trial court to vacate its order and deny the motion to suppress the evidence.

Held:   The Second District Court of Appeal denied the People’s petition. On the issue of whether Corbett’s Fifth Amendment rights were violated, the Court noted that it was undisputed that his Fifth Amendment rights were violated. The police ignored Corbett’s repeated and unambiguous invocations of his right to remain silent and continued to interrogate him.

The Court further determined the LAPD also violated Corbett’s Fourth Amendment rights when the officers conducted a warrantless search on Corbett’s home and seized the firearms and ammunition. The Court found the search was presumptively unreasonable, noting the lower court’s determination that Corbett did not voluntarily consent to the search. Since no other exception to the warrant requirement was asserted, the Court concluded that the firearm evidence was seized in violation of the Fourth Amendment.

Since Corbett’s statements were conceded to be inadmissible, the Court explained that the only issue before it on review related to the suppression of the evidence obtained in violation of the Fourth Amendment during the warrantless search of Corbett’s home.

The Court found that the People did not establish inevitable discovery of the evidence. The Court explained that pursuant to the inevitable discovery doctrine, which is closely related to the independent source doctrine, if the prosecution can establish, by a preponderance of the evidence, that the information ultimately or inevitably would have been discovered by lawful means, the evidence should be admitted. It explained that inevitable discovery focuses on “demonstrated historical facts capable of ready verification or impeachment.”

The Court noted that the evidence demonstrated that the police obtained all of their information about where the firearms registered to Corbett could be located and what to seize from Corbett’s residence in violation of Corbett’s Fourth and Fifth Amendment rights, and that they relied heavily on information obtained during the initial illegal search when they sought the warrant for the second search. Thus, the Court found the People did not present “historical facts capable of ready verification or impeachment” establishing that the evidence obtained during the first search would inevitably have been discovered without reference to police error or misconduct.

Because all of the information about where Corbett’s registered firearms could be found and what to specifically seize from his home came from the police’s violations of Corbett’s constitutional rights, the Court concluded the inevitable discovery doctrine did not justify the initial warrantless search or the seizure of firearms and ammunitions at Corbett’s house.

Thus, the Court concluded that the People did not establish that the search warrant was issued based upon independent probable cause, and did not establish any error in the trial court’s suppression of the evidence found during the initial search.

 

EMPLOYMENT DISCRIMINATION

An agency may be liable for failing to reassign a police recruit who is disabled due to injuries sustained during the course of training to a non-sworn position.

Atkins v. City of Los Angeles, 8 Cal. App. 5th 696 (2d Dist. 2017)

FactsThe City of Los Angeles (“City”) hired Ryan Atkins and four others as recruit police officers (“Plaintiffs”) between mid-2008 and early 2009. Each of the Plaintiffs entered the Police Academy (“Academy”) shortly after he was hired. Upon successful completion of the Academy’s six-month training course, the recruits would have started a 12-month field probationary period as police officers.

All five were injured during training after varying lengths of time at the Academy. All of the Plaintiffs saw City doctors who restricted their activities in various ways. The City provided physical therapy for some of the Plaintiffs and placed all of them in the “Recycle” program, which gave Plaintiffs desk jobs while they recuperated.

The Recycle program provided recruits with light-duty administrative jobs until their injuries healed and they could return to the Academy.  While in the Recycle program, recruits received full compensation and benefits. Before Plaintiffs suffered their injuries, some recruits had remained in the Recycle program until their injuries healed or they became permanently disabled. This practice conflicted with Penal Code section 832.4 and regulations issued by Commission on Peace Officer Standards and Training (POST), which require recruits to complete their training and 12-month probationary period within two years. In an apparent attempt to comply with the two-year rule, the Los Angeles Police Department (LAPD) adopted a Revised Recruit Officer Recycle Policy in July 2008, which limited participation in the Recycle program to six months.

In September 2009, after the Plaintiffs had entered the Recycle program, LAPD decided to enforce the six-month limit on assignments to the Recycle program. All Plaintiffs had already been in the program longer than six months. Each was told that they could no longer work their administrative positions and must either immediately return to the Academy or be terminated. Not being fully recovered, none of the Plaintiffs returned to the Academy and all were either terminated or resigned. In 2012, the Department ended the Recycle program entirely.

Plaintiffs filed suit and the case proceeded to trial on three causes of action under California’s Fair Employment and Housing Act (FEHA), including discrimination, failure to accommodate and failure to engage in the interactive process. The jury found in favor of the Plaintiffs on all three causes of action and awarded each Plaintiff past and future economic and non-economic losses, with a total award of over $12 million. The City appealed.

Held:   Plaintiffs did not establish their claim for disability discrimination under Government Code section 12940(a) because they could not meet the fitness standards for peace officers, and therefore they were not qualified to perform the essential functions of police recruits. However, substantial evidence demonstrated the City failed to make a reasonable accommodation for Plaintiffs, since they had already performed their duties as police recruits and had been placed in the Recycle program before the City changed its policy.

Discrimination – Government Code § 12940(a)

Establishing a case for disability discrimination under FEHA requires the employee to show he or she (1) suffered from a disability, (2) was otherwise qualified to do his or her job, and (3) was subjected to adverse employment action because of the disability. As to the second prong, the employee must establish that they are a “qualified individual”, i.e. can perform the essential functions of the job with or without accommodation. The City argued on appeal that the Plaintiffs were not qualified individuals because they could not perform the essential functions of a police recruit.

The Court agreed, finding that, in connection with a discrimination claim under Government Code section 12940(a), courts consider whether a plaintiff could perform the essential functions of the job held — or for job applicants, the job desired — with or without reasonable accommodation. The Court found that the undisputed evidence showed that the Plaintiffs could not perform the essential functions of a police officer or recruit, even with a reasonable accommodation since those essential functions include physically demanding tasks and none of the Plaintiffs had medical clearance to perform such tasks at the time of their separation from employment. Thus, the Court held that substantial evidence did not support the jury’s verdict on the discrimination cause of action.

Failure to Accommodate – Government Code § 12940(m)

The essential elements of a claim of failure to accommodate under Government Code section 12940(m) are: (1) the plaintiff has a disability covered by FEHA; (2) the plaintiff is a qualified individual; and (3) the employer failed to reasonably accommodate the plaintiff’s disability.

Like a claim for discrimination under Section 12940(a), a claim for failure to accommodate under Government Code section 12940(m) requires a plaintiff to show that he or she is a “qualified individual” under FEHA. However, where the plaintiff contends that an employer failed to accommodate by reassigning him or her to another position, the plaintiff proves he or she is a qualified individual by establishing that he or she can perform the essential functions of the position to which reassignment is sought, rather than the essential functions of the existing position.

FEHA requires reassignment as a reasonable accommodation for employees, but not for “applicants.”  On appeal, the City argued that FEHA did not require it to accommodate Plaintiffs by reassigning them to another position because, as “pre-probationary” employees who never completed their Academy training or probationary field assignments, Plaintiffs never qualified to become police officers and thus were not “qualified individuals” for purposes of their claim for failure to make reasonable accommodations.

The Court disagreed and found that FEHA’s protections extend to employees in training, “pre-probationary” employees and probationary employees. Thus, the Court found that police recruits may be entitled to reasonable accommodation by reassignment in certain circumstances.

To be entitled to reasonable accommodation by reassignment, a plaintiff must first show that they performed the essential functions of their original job – in this case police recruit – for some period of time. Here, the City did not contest that the Plaintiffs were able to perform the essential functions of a police recruit at the time they were hired, nor that each of them performed those duties, even if only for a short period of time.

Second, a plaintiff seeking accommodation by reassignment must show that reassignment is “reasonable.” FEHA does not require an employer to accommodate a disabled employee in a temporary position indefinitely, does not require the employer to convert a temporary position into a permanent one, and does not require an employer to create a new position to accommodate a disabled employee. However, the Court explained, the reasonableness of a particular accommodation must be determined in light of the employer’s policies and practices.

Citing two cases that illustrated how “workplace precedents” can affect an employer’s duties under FEHA, the Court found LAPD had a long-standing practice of allowing injured recruits to remain in the Recycle program indefinitely until they healed and could return to the Academy or until their disabilities became permanent. The new policy of restricting injured recruits’ assignments in the program to six months occurred long after Plaintiffs became injured and entered the Recycle program.

The Court found that while FEHA does not require LAPD to accommodate recruit officers injured after the change in policy by allowing them to remain in the Recycle program indefinitely, the City could not treat Plaintiffs differently than it had treated other recruit officers who were injured before the change in policy.

In sum, the Court found that substantial evidence supported that Plaintiffs were qualified for and capable of performing the essential functions of a position in the Recycle program and that an accommodation in those positions until they recovered fully or their disabilities became permanent was reasonable. Thus, the Court found that the City violated FEHA Section 12940(m) by not accommodating them.

If a single cause of action is supported by substantial evidence, a judgment must be affirmed.  Thus, judgment against the City was affirmed despite the failure of the discrimination claim.

For a more detailed discussion of this case, please see Client Alert Vol. 32, No. 4, authored by James R. Touchstone and Denise L. Rocawich and available at www.jones-mayer.com.

 

CALIFORNIA PUBLIC RECORDS ACT

Writings contained in public employees’ personal accounts may be subject to disclosure under the California Public Records Act.

City of San Jose v. Superior Court of Santa Clara (Smith), 2017 Cal. LEXIS 1607 (Cal. Mar. 2, 2017)

Facts: In 2009, Ted Smith made a CPRA request to the City of San Jose (“City”), seeking 32 categories of public records involving specified persons and issues related to redevelopment efforts in downtown San Jose. Included in the request were requests for voicemails, emails, and text messages sent or received on private electronic devices used by the mayor, members of the city council, and their staffs. The City disclosed communications made using City telephone numbers and email accounts, but did not disclose communications made using the individuals’ personal accounts, taking the position that such items were not “public records” subject to the CPRA.

Smith filed a lawsuit for declaratory relief, arguing that the CPRA’s definition of “public records” encompasses all communications about official business, regardless of how they are created, communicated or stored. The City argued that messages communicated through personal accounts are not public records because they are not within the public entity’s custody or control.

The trial court granted summary judgment in favor of Smith, ordering disclosure of the records sought. The Court of Appeal issued a writ of mandate overturning the trial court’s order, and the Supreme Court granted review.

Held: When a city employee uses a personal account to communicate about the conduct of public business, the writings may be subject to disclosure under the CPRA. In reaching its conclusion, the Court, after noting that the CPRA and California Constitution strike a careful balance between public access and personal privacy, stated that the issue was narrow: “Are writings concerning the conduct of public business beyond CPRA’s reach merely because they were sent or received using a nongovernmental account?” The Court concluded the answer is no — employees’ communications relating to official agency business may be subject to the CPRA regardless of the account utilized in their preparation or transmission. Of course, applicable exemptions (e.g. privacy, the deliberative process privilege, and the statutory exemptions in Government Code §§ 6254 and 6255) continue to apply.

The Court explained that the CPRA’s definition of “public record,” has four aspects: (1) it is “a writing, (2) with content relating to the conduct of the people’s business, which is (3) prepared by, or (4) owned, used, or retained by any state or local agency.”

  1. Writing

After setting forth the CPRA’s definition of “writing” and noting that, at the time the CPRA was enacted writings were generally made on paper or another tangible medium, the Court explained that, today, electronic communication, such as email, text messaging, and other electronic platforms, permit writings to be prepared, exchanged and stored more quickly and easily

2. Relating to the Conduct of the People’s Business

Next, the Court explained that the second aspect of the definition of “public records” establishes a framework for distinguishing between work-related and purely private communications. Pursuant to the CPRA, the Court noted, to qualify as a public record, a writing must “contain [] information relating to the conduct of the people’s business.” Since the question of whether a writing is sufficiently related to public business is not always clear, the Court explained that resolution of the question, especially when writings are kept in personal accounts, would involve an examination of several factors, such as the content itself, the context in or the purpose for which it was written, the audience to whom the writing was directed, and whether the writing was prepared by an employee acting or purporting to act within the scope of his or her employment.

Although the content of specific records was not before the Court, it clarified that, “to qualify as a public record under the CPRA, at a minimum, a writing must relate in some substantive way to the conduct of the people’s business” noting that, although the standard is broad, it “is not so elastic as to include every piece of information the public may find interesting. Communications that are primarily personal, containing no more than incidental mentions of agency business, generally will not constitute public records.”

3. Prepared by Any State or Local Agency

Third, the Court held that a writing is “prepared by” the agency even if the writing is prepared using the employee’s personal account.  In other words, a document can be a public record, even if it is solely on the employee’s own computer or phone.

4. Owned, Use, or Retained by Any State or Local Agency

Fourth, citing section 6253(c) of the Government Code, the Court explained that an agency’s actual or constructive possession of records is relevant in determining whether it has an obligation to search for, collect, and disclose material requested. Nonetheless, the Court explained, “[i]t is a separate and more fundamental question whether a document located outside an agency’s walls, or servers, is sufficiently ‘owned, used, or retained’ by the agency so as to constitute a public record.”  The Court concluded that “documents otherwise meeting CPRA’s definition of ‘public records’ do not lose this status because they are located in an employee’s personal account. A writing retained by a public employee conducting agency business has been ‘retained by’ the agency within the meaning of section 6252, subdivision (e), even if the writing is retained in the employee’s personal account.”

The Court thus concluded that “a city employee’s communications related to the conduct of the public business do not cease to be public records just because they were sent or received using a personal account. Sound public policy supports this result.”

The Court did not wish to allow government officials to evade the CPRA by merely using a personal account. The Court noted that the “whole purpose” of the CPRA is to “ensure transparency in government activities. If public officials could evade the law simply by clicking into a different email account, or communicating through a personal device, sensitive information could routinely evade public scrutiny.”

In conclusion, noting consistency with the legislative purpose of the CPRA and the constitutional requirement to interpret the CPRA broadly in favor of public access, the Court held that “a city employee’s writings about public business are not excluded from CPRA simply because they have been sent, received, or stored in a personal account.”

For a more detailed discussion of this case, please see Client Alert Vol. 32, No. 5, authored by James R. Touchstone and available at www.jones-mayer.com.