The following Case Summaries have been provided by Jim Touchstone, Partner at Jones & Mayer and CPOA’s General Counsel.

CPOA CASE SUMMARIES – JULY 2022

The following Case Summaries have been provided by Jim Touchstone, CPOA’s General Counsel.

CPOA CASE SUMMARIES – JUNE 2022

CONSTITUTIONAL LAW/ POLICE CONDUCT

1. Court extends the Bivens remedy to allow suit against a correctional officer who allegedly created a substantial risk of harm to plaintiff prisoner.

Hoffman v. Preston, 2022 U.S. App. LEXIS 5237 (9th Cir. Feb. 28, 2022)

Facts: Marcellas Hoffman was a federal prisoner at U.S. Penitentiary Atwater, where Timothy Preston was a correctional officer. According to the complaint, Preston repeatedly and publicly labeled Hoffman a snitch to other prisoners, offered them a bounty to assault Hoffman, and failed to protect him from the predictable assault by another inmate in May 2016. Hoffman sued Preston for violating his Eighth Amendment rights and sought damages under Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971). Hoffman alleged that the other inmate attacked him as a direct result of Preston labeling Hoffman a snitch.

Preston moved to dismiss the amended complaint, arguing that Hoffman had failed to state a valid Eighth Amendment claim under Bivens. Adopting a magistrate judge’s findings and recommendations, the District Court dismissed the action on the grounds that Hoffman’s claim presented a new Bivens context, and that special factors cautioned against extending the Bivens remedy to Hoffman’s claim. Hoffman appealed.

Held: The Ninth Circuit Court of Appeals explained that in Bivens, the United States Supreme Court recognized, for the first time, an implied cause of action arising directly under the Constitution for damages against federal officers alleged to have violated a plaintiff’s constitutional rights. The Bivens Court specifically held that damages were recoverable against federal officers who violated the Fourth Amendment’s prohibition against unreasonable searches and seizures. The Supreme Court explicitly extended the Bivens remedy in only two other cases, and only one of these involved the Eighth Amendment. Carlson v. Green, 446 U.S. 14 (1980) recognized an implied claim under the Eighth Amendment’s cruel and unusual punishment clause for prison officials’ failure to provide adequate medical care, Id. at 16-18 & n.1.

In Ziglar v. Abbasi, 137 S. Ct. 1843 (2017), the Supreme Court instructed lower courts first to determine whether the case presents “a new Bivens context” by asking whether “the case is different in a meaningful way from previous Bivens cases decided by [the Supreme] Court.” Id. at 1859. If the case presents a new Bivens context, the next step is to ask whether “special factors counsel[] hesitation” against allowing the remedy in that context. Id. at 1857 (quoting Carlson, 446 U.S. at 18).

Construing the pro se complaint liberally, the Ninth Circuit held here that Hoffman’s complaint alleged conduct beyond deliberate indifference. The Court explained that Preston did not merely know of a risk of substantial harm; he intentionally and knowingly created the risk. Although this claim of intentional harm was not squarely presented in the Supreme Court’s Bivens opinions, the Ninth Circuit concluded that Hoffman’s allegations taken as true were only a modest extension of Bivens. Citing Carlson, the Ninth Circuit reasoned that if the Supreme Court allowed a guard who is aware of and deliberately indifferent to a substantial risk that a prisoner will suffer medical harm from an asthma attack to be sued under Bivens, it was only a modest extension to allow a suit against a guard who creates the substantial risk of harm and then allows it to occur. The Ninth Circuit also concluded that while Hoffman’s Eighth Amendment claim was different in some respects from the Eighth Amendment claim presented in Carlson, no special factors counseled hesitation against what was a very modest expansion of the Bivens remedy to this context. The Ninth Circuit Court of Appeals accordingly reversed the District Court’s dismissal of Hoffman’s complaint for failure to state a claim under Bivens, and remanded.

A dissenting judge stated that the Supreme Court had made “crystal clear that the days of freely implying damages remedies against individual federal officials under Bivens are at an end.” The dissent maintained the case should have been a straightforward affirmance of the District Court’s judgment.\

B. District Court correctly applied the purpose-to-harm test because police officers did not have time to deliberate before shooting decedent.

Ochoa v. City of Mesa, 2022 U.S. App. LEXIS 5240 (9th Cir. Feb. 28, 2022)

Facts: In Mesa, Arizona in March 2016, the ex-girlfriend of Sergio Ochoa called 911, and reported that she and Ochoa had a fight, that a handgun was involved, that Ochoa was under the influence of drugs, and had driven away. Minutes later, a second 911 call told dispatch that a man entered the caller’s home and said that he had two knives before driving away. Police realized that Ochoa had prompted both 911 calls, and tried unsuccessfully to pull Ochoa’s car over. Ochoa drove erratically, including on the wrong side of the road towards police vehicles. Ochoa eventually abandoned his car and fled to a home nearby. Officers there encountered a frantic man who evacuated children from a second-floor locked bedroom to evade Ochoa. Other people were yelling in a back room. Officers observed Ochoa briefly appear through the front window, possibly holding a knife. He ignored commands to come outside. Ochoa ran into the backyard. Standing between Ochoa and the home, the officers formed an L-shape around Ochoa. Ochoa had two knives in one hand and refused to obey the officers’ repeated commands to “Drop the knife!” To officers, Ochoa looked upset and ready to fight.

Police bodycam video displayed subsequent events. An officer fired a beanbag round at Ochoa and another officer at the same time released a police dog. Ochoa took a large step sideways (according to plaintiffs, away from the officers). The officers then fired about 30 shots at Ochoa. Ochoa died at the scene. Approximately 16 seconds had elapsed between the officers’ first entry into the home and the shooting.

Ochoa’s children, through their mothers, and Ochoa’s mother together sued on their own behalf. Ultimately, the remaining defendants were the Town of Gilbert, two Gilbert police officers, the City of Mesa, and seven Mesa police officers. Plaintiffs alleged in part that defendants violated the Fourteenth Amendment under 42 U.S.C. section 1983 by wrongfully depriving the plaintiffs of Ochoa’s companionship and familial association. The District Court granted the defendants’ summary judgment motion on the Fourteenth Amendment claim. The plaintiffs appealed.

Held: The Ninth Circuit Court of Appeals explained that a claim asserting that police officers violated a parent’s or child’s cognizable Fourteenth Amendment rights during a police shooting must show that the officers’ conduct “shocks the conscience.” Porter v. Osborn, 546 F.3d 1131, 1137 (9th Cir. 2008). The test used to decide whether officers’ conduct shocks the conscience depends on whether the officers had time to deliberate their conduct. The deliberate-indifference test applies if the situation at issue “evolve[d] in a time frame that permits the officer to deliberate before acting.” Id. at 1137. Deliberation is not possible if the officers “encounter[ed] fast paced circumstances presenting competing public safety obligations.” Id. at 1139. However, the purpose-to-harm test applies if the situation at issue “escalate[d] so quickly that the officer [had to] make a snap judgment.” Id. at 1137. This test requires “a more demanding showing that [the officers] acted with a purpose to harm [the decedent] for reasons unrelated to legitimate law enforcement objectives.” Id. The Court noted that the Fourteenth Amendment “shocks the conscience” standard applicable to a claim by a relative requires more of a plaintiff than the standard used in Fourth Amendment excessive-force claims which asks whether the officers’ conduct was “objectively unreasonable.”^[1]

The Ninth Circuit noted that at the time of the shooting, the officers knew that Ochoa had: engaged in a domestic dispute that allegedly involved a gun while possibly under the influence; allegedly entered a stranger’s home stating that he was armed with knives; failed to yield when a marked police car tried to pull him over; and had driven erratically, including on the wrong side of the road towards police officers. When the officers arrived at the home where Ochoa was later shot, the situation escalated. They encountered a distressed man who said that Ochoa did not belong at the house and evacuated children from a locked bedroom out of the house through a second-story window. Ochoa ignored repeated commands to come outside and drop any knives he was carrying. As the officers entered the front door, Ochoa ran into the backyard, where he refused to drop two kitchen knives despite multiple commands from the police to do so. He then took a large step. The Court found that with the knowledge of Ochoa’s earlier actions, the officers had to make a snap decision about Ochoa’s intentions and the threat he posed to them, the people in the home, and the public at large. Thus, the Court concluded that the purpose-to-harm test was the correct choice to assess whether the officers’ conduct shocked the conscience.

The Court of Appeals next found that the District Court correctly concluded that under the purpose-to-harm test, the conduct did not violate the plaintiffs’ Fourteenth Amendment rights. The officers’ actions instead reflected their attempts to satisfy legitimate law enforcement objectives: apprehension of an armed, dangerous suspect and protection of the safety of the officers, the home’s inhabitants, and (if Ochoa escaped the backyard) the public. Moreover, nothing in the record suggested that the officers had an improper purpose to harm. Accordingly, the Ninth Circuit Court of Appeals affirmed the District Court’s summary judgment.

For a more detailed discussion of this case, please see Client Alert Vol. 37, No. 3, available at www.jones-mayer.com.

EMPLOYMENT

A. Plaintiff’s burden of proving that the discrimination was a substantial factor motivating an adverse employment action arises only after, not before, the employer has rebutted plaintiff’s prima facie showing.

Dep’t of Corr. & Rehab. v. State Pers. Bd., 74 Cal. App. 5th 908 (3rd Dist. 2022)

Facts: Dr. Vickie Mabry-Height is an African-American, female physician who was 52 years old when the relevant facts here commenced. During the period from July to September 2008, Dr. Mabry-Height was denied the opportunity to interview for vacant physician/surgeon positions at Chuckawalla Valley State Prison (“CVSP”) and Centinela State Prison (“CSP”) for which others were chosen. She subsequently brought a complaint against the Department of Corrections and Rehabilitation (“Department”) alleging discrimination based on age, race, and gender in violation of the California Fair Employment and Housing Act (Government Code section 12900 et seq.; “FEHA”).

The State Personnel Board (“Board”) sustained Dr. Mabry-Height’s complaint. The Board concluded that she had established a prima facie case of unlawful discrimination by producing evidence that she was not interviewed for positions for which she was well qualified and less-qualified persons were hired for those positions, raising an inference that the Department discriminated against her on the basis of age, gender, and/or race. The Board also concluded that the Department failed to rebut the presumption of discrimination by offering evidence that it had a legitimate, nondiscriminatory reason for this conduct.

The Department petitioned the trial court for a writ of administrative mandamus seeking an order setting aside the Board’s decision. The trial court denied the petition, and judgment was entered in favor of Dr. Mabry-Height. The Department appealed.

Held: The Third District Court of Appeal explained that California adopted the three-stage burden-shifting test established by the United States Supreme Court in McDonnell Douglas Corp. v. Green (1973) 411 U.S. 792 for trying claims of discrimination. The first step of the McDonnell Douglas test places on the plaintiff the initial burden to establish a prima facie case of discrimination. For this first step, the plaintiff must at least demonstrate actions taken by the employer from which one can infer that it was more likely than not that such actions were based on a prohibited discriminatory criterion. If, at trial, the plaintiff establishes a prima facie case, a presumption of discrimination arises. In the second step of the test, the burden shifts to the employer to rebut the presumption by producing admissible evidence, sufficient to raise a genuine issue of fact and to justify a judgment for the employer, that its action was taken for a legitimate, nondiscriminatory reason. If the employer sustains this burden, the presumption of discrimination disappears. In the third step, the plaintiff must then have the chance to attack the employer’s proffered reasons as pretexts for discrimination, or to offer any other evidence of discriminatory motive.[2]

On appeal, the Department contended that the Board abused its discretion by not requiring Dr. Mabry-Height to demonstrate by a preponderance of the evidence that discrimination was a substantial motivating factor in the Department’s challenged decisions. The Court of Appeal rejected the contention because such a showing by the plaintiff was only required at the third stage of the McDonnell Douglas analysis, after the employer successfully rebuts the presumption of discrimination arising from the prima facie case by producing evidence of a legitimate, nondiscriminatory reason for the challenged conduct.

Here, the Board concluded the Department did not carry its stage-two burden of producing sufficient evidence of a legitimate, nondiscriminatory reason for the challenged conduct. The Court concluded that where a plaintiff establishes a prima facie case of discrimination based on a failure to interview her for open positions, the employer must do more than the Department did here, i.e., merely producing evidence that the hiring authorities did not know why Dr. Mabry-Height was not interviewed, and providing after-the-fact possible nondiscriminatory reasons. The Court explained that the employer must clearly state the actual nondiscriminatory reason for the challenged conduct. Thus, Dr. Mabry-Height prevailed based on the presumption of discrimination and was not required to proceed to the third stage of the analysis. Accordingly, the Third District Court of Appeal affirmed.

B. Plaintiff police chief’s employment contract created a hybrid employment relationship between city and plaintiff where employment as chief was at will but employment as lieutenant was not at will

Joseph v. City of Atwater, 74 Cal. App. 5th 974 (5th Dist. 2022)

Facts: In November 2016, plaintiff Samuel Joseph and defendant City of Atwater (“City”) entered into a “CHIEF OF POLICE EMPLOYMENT AGREEMENT” regarding the City’s employment of Joseph as its chief of police.  Section 2.2 addressed the City’s removal of Joseph from his employment as chief of police by stating:

Joseph shall be designated an ‘at-will’ employee. Accordingly, the City Manager may terminate this [Chief of Police] Employment Agreement and remove Joseph from the position of Police Chief at any time, for any reason, with or without cause. If the City Manager removes Joseph from the position of Police Chief for any reason other than willful misconduct in office or conviction of a crime of moral turpitude, Joseph shall be given the option to either:

2.2.1 Return to his previous position of Police Lieutenant, where his compensation will be based on Step 6 of Range 315 of the Salary Schedule for Police Lieutenant; or

2.2.2 Terminate his employment with the City and receive four (4) months wage continuation pay, with such pay to be computed at the highest base salary received by Joseph during his service with the City….

In September 2018, the city manager sent Joseph and his attorney a notice of “intention to terminate [plaintiff’s] employment as Police Chief with the City for willful and other misconduct.”  The notice described the misconduct and listed Penal Code and policy violations. The notice also described Joseph’s right to appeal the termination decision.

Under Section 3304(c) of the Public Safety Officers Procedural Bill of Rights Act (“POBRA”; Government Code section 3300 et seq.), no chief of police may be removed from office without being provided written notice of the reasons “and an opportunity for administrative appeal.” Joseph’s attorney responded to the City in a letter stating Joseph was appealing the proposed termination and was objecting to the appeal procedure. The parties ultimately were unable to agree as to the type of hearing that Section 3304 required.  Joseph refused to participate in a hearing that did not comply with his interpretation of POBRA and so no hearing was held.  In November 2018, the City terminated Joseph’s employment as chief of police for willful and other misconduct.

Joseph filed a petition for writ of mandate, alleging that the City failed to provide him with the type of hearing necessary to afford him “an opportunity for administrative appeal.”  The trial court denied the petition and entered judgment in favor of the City. Joseph appealed.

Held: The Fifth District Court of Appeal initially noted that Labor Code section 2922 states that “[a]n employment, having no specified term, may be terminated at the will of either party on notice to the other.”  An employer and employee may agree to any limit, otherwise lawful, on the employer’s right to terminate the employment relationship for any or no reason.  (Guz v. Bechtel National, Inc. (2000) 24 Cal.4th 317, 336.)  The City and the trial court characterized Joseph’s employment with the City as an at-will employee.  Joseph argued he had the contractual right to be returned to the position of lieutenant if his termination as police chief was without cause; City’s decision to terminate his employment for willful misconduct deprived him of his right to employment as a lieutenant; and the termination for cause created a situation where he was entitled to the same procedural rights as other public safety officers terminated or disciplined for cause.

The Fifth District focused on the question of whether the agreement was reasonably susceptible to the interpretation that Joseph was an at-will employee not only as a police chief, but in any capacity. The Court decided that the plain meaning of Section 2.2 of the employment agreement meant that Joseph’s employment as police chief could be terminated at any time for any reasons and, consequently, his employment in the police chief position was properly characterized as at will.

The Court described the remainder of Section 2.2 as imposing a limit on the City’s right to terminate Joseph’s employment for any reason.  That portion provided that if Joseph’s employment as police chief was terminated for reasons other than “willful misconduct in office or conviction of a crime of moral turpitude,” Joseph had a right to continued employment as a lieutenant or a payment of four months’ salary, at his option.  The Court stated: “Thus, section 2.2 necessarily implies that City’s right to terminate plaintiff’s employment as a lieutenant is limited to the specified reasons—that is, willful misconduct or conviction of a crime of moral turpitude, which necessitate certain procedural protections.”^[3] The Fifth District thus determined that when Section 2.2 was read as a whole, it was not reasonably susceptible to the interpretation that all of Joseph’s rights to employment were at will.  The Court concluded that the employment agreement instead “unambiguously created a hybrid employment relationship between City and plaintiff.  First, plaintiff’s employment as chief of police was at will.  Second, plaintiff’s employment as a lieutenant was not at will because it could be terminated only on the grounds specified in the agreement.”

The Fifth District found that the termination of Joseph’s right to employment as a lieutenant entitled him to an administrative appeal pursuant to Section 3304(b), which provides “[n]o punitive action, nor denial of promotion on grounds other than merit, shall be undertaken by any public agency against any public safety officer …without providing the public safety officer with an opportunity for administrative appeal.”

The Fifth District explained that in Caloca,[4] the Fourth District Court of Appeal concluded that under POBRA’s administrative appeal requirement, a compliant administrative appeal required (1) an independent reexamination of the decision, (2) the reexamination be conducted by someone who was not involved in the initial determination, (3) the independent administrative decision maker to set forth findings to bridge the analytical gap between the raw evidence and the ultimate decision, (4) the hearing to “be treated as a de novo proceeding at which no facts are taken as established” and (5) the proponent of a particular fact to bear the burden of establishing it. (Id., at pp. 443–444.)  The Caloca court also concluded the hearing could not be closed over the officer’s objection.

Here, the Fifth District found that these minimum procedural protections must be provided to Joseph in the administrative appeal provided to him in connection with the termination of his rights to employment as a lieutenant.  The Court concluded that the hearing offered by City did not satisfy these requirements and, therefore, did not comply with Section 3304(b).  The Court explained that the retention of final authority by the city manager did not provide Joseph with a hearing by an independent decision maker as required by Caloca and other case law because the city manager was involved in the initial decision to terminate Joseph’s employment.  Moreover, the City’s proposed hearing did not provide Joseph with a full evidentiary hearing where he had the right to cross-examine witnesses and the burden of proving a particular fact was placed on its proponent.  The Fifth District Court of Appeal accordingly reversed the order denying the petition for writ of mandate and remanded for further proceedings.

For a more detailed discussion of this case, please see Client Alert Vol. 37, No. 4, available at www.jones-mayer.com.

MISCELLANEOUS

A. Trial court properly dismissed plaintiff’s case because an administrative rule extending the statute of limitations did not trigger a statute to extend the deadline an additional six months.

Ables v. A. Ghazale Bros., Inc., 74 Cal. App. 5th 823 (5th Dist. 2022)

Facts: Code of Civil Procedure section 583.310 requires an action to “be brought to trial within five years after the action is commenced against the defendant.” In July 2015, Mary Ables filed a complaint alleging that she was injured due to negligence by A. Ghazale Brothers, Inc., Joseph Abou-Ghazale (together “Ghazale Brothers”) and Central Freight Xpress, Inc. (“Central Freight”). In November 2019, Ables filed an ex parte application requesting the trial be continued “for at least 6 months.” The trial court granted Ables’s request and continued the trial to March 8, 2021.

Due to the COVID-19 pandemic, the Judicial Council of California enacted emergency rules. Emergency Rule 10(a) states: “Notwithstanding any other law, including Code of Civil Procedure section 583.310, for all civil actions filed on or before April 6, 2020, the time in which to bring the action to trial is extended by six months for a total time of five years and six months.”[5] The March 2021 trial date, however, fell five years and seven months after the action was commenced.

In February of 2021, Ghazale Brothers and Central Freight brough separate motions to dismiss the case for failure to bring the action to trial within five years. Opposing the motions, Ables asserted that the March 2021 trial date was not outside the five-year limit imposed by Section 583.310 because the extension referred to in Emergency rule 10(a) provided an additional six months in which to bring the action to trial. Ables asserted that Section 583.350 applied. Section 583.350 provides that, if the time within which an action must be brought to trial is “tolled or otherwise extended pursuant to statute,” the action “shall not be dismissed … if the action is brought to trial within six months after the end of the period of tolling or extension.” (Italics added.)

On March 3, 2021, the trial court heard arguments on the motions for dismissal. The court noted that Ables had never informed the court of the impending five-year deadline, and, had she done so, the court would have accommodated trial within that deadline. The trial court found that, with the six-month extension pursuant to emergency rule 10(a), Ables had until January 24, 2021, to bring her civil action to trial. The court rejected Ables’s argument that emergency rule 10(a) invoked Section 583.350, and granted the motions to dismiss the case. Ables appealed.

Held: The Fifth District Court of Appeal affirmed. The Court observed that the Judicial Council of California adopted emergency rule 10(a), and that the rule was located in appendix I of the California Rules of Court. The Court explained that because they were enacted by the Judicial Council and not by the Legislature, the California Rules of Court were not statutes, but administrative rules.[6] Section 583.350 required that a statute extend the period and because Emergency Rule 10(a) was not a statute, the Court of Appeal concluded that it did not extend Ables’s deadline pursuant to statute and did not trigger Section 583.350’s extra six-month period. The Fifth District Court of Appeal thus concluded that the trial court properly dismissed the case, and, accordingly, affirmed.

B. A gang enhancement did not require a showing that an umbrella gang and local subset were connected because the umbrella gang alone satisfied the requirements.

People v. Vasquez, 74 Cal. App. 5th 1021 (5th Dist. 2022)

Facts: In February 2017, Francisco Amavisca was shot and killed at the Residence Motel in Bakersfield. In January 2018, the Kern County District Attorney filed an information charging Guillermo Vasquez and Nicky Diaz Carrillo with first degree murder and assault with a firearm. The information also alleged, among other things, that both defendants committed both offenses “for the benefit of, at the direction of, or in association with Sure[ñ]os, a criminal street gang, with the specific intent to promote, further or assist in criminal conduct by gang members.” (Penal Code section 186.22(b)(1).)

At trial, Officer Barajas testified as the prosecution’s gang expert. He testified that in Bakersfield, the Sureño gang has several “subsets,” meaning a “smaller kind of clique” under the “umbrella” of the Sureños. One of these subsets in Bakersfield was the West Side Bakers. Officer Barajas testified that, in his opinion, Carrillo was a member of the Sureño gang on the date of Amavisca’s murder. Officer Barajas’s opinion was based on prior police contacts, gang apparel, self-admissions, and tattoos which were consistent with Sureño gang membership. Other officers who had encountered Carrillo over the previous years testified that he admitted membership in the West Side Bakers.

A jury convicted both defendants of first-degree murder, and found true the gang enhancement as to both defendants. The trial court sentenced Carrillo to 25 years to life, plus 25 years to life. Carrillo appealed. The Fifth District Court of Appeal affirmed a modified judgment. The California Supreme Court subsequently vacated the appellate court’s opinion, and transferred the matter back to the Fifth District for reconsideration in light of Assembly Bill No. 333 (2021–2022 Reg. Sess.) (“AB 333”).[7]

AB 333 “amends section 186.22 to require proof of additional elements to establish a gang enhancement.”[8] After considering AB 333’s amendments, the Fifth District found that the proof offered at trial did not satisfy AB 333’s new requirements.[9] Although the Fifth District accordingly concluded that the gang-related enhancement findings must be vacated and the matter remanded, the Court of Appeal nonetheless proceeded to address Carrillo’s claims of error under People v. Prunty (2015) 62 Cal.4th 59. The Court explained that if the claim had merit, then the gang enhancements could not be retried under double jeopardy principles.

Held: Carrillo contended that the gang enhancement was not supported by substantial evidence under Prunty because the government’s theory was that the gang Carrillo benefitted for purposes of the enhancement was the broader Sureños gang, and the prosecution therefore had to show a connection between the West Side Bakers and the Sureños. Carrillo maintained that the prosecution had failed to make such a connection.

The Fifth District Court of Appeal noted that the prosecution, in order to prove the gang enhancement under Section 186.22(b)(1), must show the defendant harbored the requisite intent and that the underlying crime was “committed ‘for the benefit of, at the direction of, or in association with’” the criminal street gang. (Section 186.22(b)(1).) The Court stated that “the prosecution must show that the group the defendant acted to benefit, the group that committed the predicate offenses, and the group whose primary activities are introduced, is one and the same.” (Prunty, supra, 62 Cal.4th at p. 81.) This is referred to as the “‘sameness’ requirement.” (Id. at pp. 76, 81.)

The Court stated, however, that there was unnecessary to show that various gangs or subsets should be treated as one group, when there was a single group that, itself, satisfied all aspects of the sameness requirement. (See People v. Pettie (6th Dist. 2017) 16 Cal.App.5th 23, 49–50.) The Court found that here, there was no violation of the sameness requirement because there was substantial evidence that the gang whose members Carrillo acted in association with, the gang whose members committed the predicate offenses, and the gang whose primary activities were established by expert testimony was one and the same: the broader Sureño gang. Moreover, the Court found that the evidence, specifically Officer Barajas’s expert opinion, also showed that, in addition to his membership in a subset, Carrillo was also a member of the umbrella Sureño gang. Because Carrillo’s claim of error under Prunty did not have merit, on remand the prosecution could elect to retry the gang enhancement given the changes wrought by AB 333.

C. Penal Code section 186.22(f) requirement that gang members “collectively engage” in a pattern of criminal gang activity requires the People to prove that two or more gang members committed each predicate offense.

People v. Delgado, 74 Cal. App. 5th 1067 (2nd Dist. 2022)

Facts: In Los Angeles in August 2018, a man shot at a car in at a location known to be within territory claimed by the Avenues street gang. After viewing surveillance video of the shooting, several officers from the Los Angeles Police Department identified Froyan Delgado as the shooter. Multiple officers testified that Delgado admitted to being an Avenues gang member, although Delgado himself did not testify or present evidence in defense. A jury convicted Delgado of shooting at an occupied vehicle, assault with an assault weapon, and possession of a firearm by a felon. The jury also found true gang and firearm enhancements. Delgado appealed. The Second District Court of Appeal affirmed. The California Supreme Court granted review, and transferred the matter back to the Court of Appeal with directions to vacate its prior opinion and reconsider the appeal.

After the transfer but before the Second District’s reconsideration of the appeal, the Legislature enacted Assembly Bill No. 333 (2021–2022 Reg. Sess.) (“AB 333”).[10] Effective January 1, 2022, AB 333 made several modifications to the criminal street gang enhancement statute, Penal Code section 186.22. Section 186.22 provides for enhanced punishment when a defendant is convicted of an enumerated felony committed “for the benefit of, at the direction of, or in association with a criminal street gang, with the specific intent to promote, further, or assist in any criminal conduct by gang members.” (Section 186.22(b)(1).) The parties and the Court agreed that AB 333’s amendments to Section 186.22 applied retroactively to Delgado’s conviction under In re Estrada (1965) 63 Cal.2d 740, which held that statutory amendments that reduce the punishment for an offense apply retroactively to a defendant whose judgment is not yet final absent a contrary legislative intent. The Second District explained that Estrada retroactivity applied here because the amendments increase the threshold for imposition of the enhancement.

Held: The Second District observed that AB 333 modified the definition of a “criminal street gang” in subdivision (f) of Section 186.22. Subdivision (f) now defines a criminal street gang as “an ongoing, organized association or group of three or more persons, whether formal or informal,” and requires that members of the gang “collectively engage in, or have engaged in a pattern of criminal gang activity” (rather than “individually or collectively,” under the previous law). (Italics added.)

Delgado argued that “collectively engage” in a pattern of criminal gang activity meant the People were required to prove that two or more gang members committed each predicate offense in concert, and here, no evidence was presented that multiple Avenues gang members committed the predicate offenses. The People countered that proof that individual gang members committed the predicate offenses on separate occasions was sufficient to show the gang members “collectively” engaged in a pattern of criminal activity.

The Court explained that, consistent with the Senate Rules Committee’s analysis of AB 333 and the Legislature’s intent to significantly limit the scope of the gang enhancement, it read the term “collectively” in a commonsense manner to mean committed by more than one person, and not, as argued by the People, individually but on a different day. The Court added that reading the Section 186.22(f) amendment to limit application of the gang enhancement to situations where individual gang members commit the predicate offenses on separate occasions would do little to further the legislative purpose of limiting the scope of the gang enhancement.[11] The Court noted that another division of the District Court in People v. Lopez (2nd Dist. 2021) 73 Cal.App.5th 327, 344-345 had recently reached a similar conclusion as to the interpretation of amended Section 186.22(f).

The Court found that there was insufficient evidence that multiple Avenues gang members committed the predicate offenses, and that the Court could not conclude beyond a reasonable doubt that the jury imposed the gang enhancements on a now legally valid ground under Assembly Bill 333’s amendments. Accordingly, the Second District Court of Appeal reversed the jury’s findings that Delgado committed the underlying offenses for the benefit of a criminal street gang. The Court remanded to give the People the chance to retry the gang enhancement under Assembly Bill 333’s new requirements; else Delgado must be resentenced.

[1] Graham v. Connor, 490 U.S. 386, 397 (1989).

[2] See Guz v. Bechtel National, Inc., 24 Cal.4th 317, 354-356 (2000).

[3] The Court added that because this contractual limitation on the City’s right to terminate Joseph’s overall employment was more specific than the sentence stating Joseph was an at-will employee, the more-specific sentence must be given effect. See Code Civ. Proc., Section 1859 [if a general provision in a contract conflicts with a specific provision, the specific provision controls].

[4] Caloca v. County of San Diego, 102 Cal.App.4th 433 (4th Dist. 2002).

[5] Cal. Rules of Court, appen. I, emergency rule 10(a).

[6] See Cal. Const., art. VI, section 6(d) [Judicial Council is authorized to adopt rules of court “not … inconsistent with statute.”]; Sara M. v. Superior Court, 36 Cal.4th 998, 1012 (2005) [Judicial Council is an administrative agency promulgating administrative rules]; California Court Reporters Assn. v. Judicial Council of California, 39 Cal.App.4th 15, 22 (1st Dist. 1995) [Judicial Council’s rulemaking authority subordinate to Legislature].

[7] Stats. 2021, ch. 699.

[8] People v. Lopez, 73 Cal.App.5th 327, 343 (2nd Dist. 2021).

[9] The Court explained that AB 333 redefined the definition of “criminal street gang” and “pattern of criminal gang activity.” (Id., at p. 345.) “In addition, the currently charged offense cannot be used as a predicate offense under the amendments” made by Assembly Bill 333. (Id.) See the following summary for People v. Delgado for further discussion of AB 333’s amendments.

[10] Stats. 2021, ch. 699.

[11] The Court stated: “Section 2 of the legislation likewise makes clear the Legislature’s intent to dramatically limit the scope of the gang enhancement because of its criminalization of ‘entire neighborhoods historically impacted by poverty, racial inequality, and mass incarceration,’ disproportionate impact on people of color, and legitimization of severe punishment. (Stats. 2021, ch. 699, section 2, subds. (a), (d)(1) & (2), (i).)”

CONSTITUTIONAL LAW/ POLICE CONDUCT

1. Defendant’s murder conviction was reversed because the police officer obtained defendant’s confession by threatening to charge his sons with murder.

People v. Jimenez, 72 Cal. App. 5th 712 (4th Dist. 2021)

Facts: Around midnight on the night of May 19–20, 2016, Sheriff’s Deputy Jeffrey Casey was on patrol in Highland, CA when he noticed a white Chevy Suburban, with an attached trailer, parked next to an open field. He observed three males and two trash cans in the field. The males ran to the Suburban, got in, and drove away. The deputy suspected they might have committed illegal dumping. He pursued and tried to pull over the Suburban. The Suburban returned to the trash cans where the driver leaned out and used a lighter to set fire to the contents of one can. To stop him from destroying evidence, Deputy Casey rammed the back of the Suburban. The driver dropped the lid, which extinguished the fire. The Suburban again fled. The driver dropped off the two passengers, then led police in a pursuit in which the Suburban ran through red lights and stop signs, and drove on the wrong side of the road. Eventually, the driver stopped, and ran on foot before officers apprehended and arrested him. The driver was identified as defendant Enrique Mayorga Jimenez and the two passengers that he had dropped off were identified as his two teenage sons. In the partially burnt trash can, police found a dead body with stab wounds and gasoline poured on it.

Detective John Munoz interviewed defendant. The detective stated near the beginning of the interview that defendant’s sons were both “…a little afraid … they had nothing to do with this, they didn’t do this.” “But you’re gonna be the one to help them.” “Because I’m gonna have to charge them with the death of this guy.” When defendant asked why, Detective Munoz responded, “Until I can find out what happened.” Defendant then said, “Okay, well I’ll talk to ya and tell ya what happened, okay?” Detective Munoz stated, “…then once we do all of that, then we’ll be able to, you know, to clear them from this and then we’ll move on, okay?” After Detective Munoz Mirandized[1] defendant, defendant confessed to killing the victim. Defendant repeatedly said he did not want his sons to go to jail.

In a jury trial, defendant was found guilty of, among other things, first degree murder with an enhancement for personal use of a deadly weapon. He was sentenced to a total of 29 years to life. Defendant appealed. He contended, among other things, that his confession was involuntary because the police induced it by threatening to charge his sons with the murder.

Held: The California Fourth District Court of Appeal explained that as a general rule, “[a] confession coerced by a threat to arrest a near relative is not admissible.”[2] Coercive police activity is a necessary predicate to the finding that a confession is not “voluntary” within the meaning of the Due Process Clause of the Fourteenth Amendment. Coercive police activity, however, does not itself compel a finding that a resulting confession is involuntary. The statement and the inducement must be causally linked.[3]

The Fourth District noted that there is an exception to this general inadmissibility rule when the police have probable cause to charge the relative. Here, however, Detective Munoz told defendant that the detective knew defendant’s sons were innocent of murder, but intended to charge them anyway—unless defendant confessed. The Court stated that there was a clear causal connection between the threat and the confession. The Court found that the detective’s representations were inherently coercive, and did, in fact, coerce defendant. The Court therefore concluded that the general rule applied.

The Court of Appeal also found that the error was prejudicial. The Court explained that it could not say, beyond a reasonable doubt, that if the confession had been excluded, defendant would still have been convicted of first-degree murder. The Court believed it was reasonably probable that the jury would have found him guilty of a lesser offense, such as second-degree murder or involuntary manslaughter, or acquitted him on the first-degree murder count. Accordingly, the Fourth District Court of Appeal reversed solely with respect to the first-degree murder conviction, and remanded with directions. In all other aspects, the Court affirmed.

1. Motion to suppress should have been granted because the odor of burnt marijuana was insufficient to support probable cause for the warrantless search of a vehicle.

Blakes v. Superior Court (People), 72 Cal. App. 5th 904 (3rd Dist. 2021)

Facts: In December 2019, Sacramento County Sheriff’s deputies were patrolling in their marked vehicle when they spotted a Chevy Impala with tinted windows in violation of the Vehicle Code. A records check revealed that the Impala was owned and being driven by Derrick J. Blakes, whose license was suspended. Blakes also had a prior arrest for felon in possession of a firearm. The deputies initiated a traffic stop based on the window tint and driving with a suspended license violations. Blakes subsequently drove for about one-tenth of a mile before pulling over into a parking lot where he parked the Impala. The deputies informed Blakes that he was driving on a suspended license and had an illegally tinted front window. At this time, a deputy noticed the smell of marijuana coming from Blakes’ car. The deputies asked him to exit the vehicle. Blakes complied. The deputies conducted a pat-down search of Blakes, finding nothing. After the pat down, the deputy who detected the marijuana odor told Blakes that he would be searching the interior of the vehicle because he had smelled burnt marijuana from the car and because Blakes’ license was suspended. The deputy later testified that the smell of the burnt marijuana weighed heavily in his decision to search the car, and he had thought that the smell of burned marijuana gave him probable cause to search the vehicle. The vehicle search yielded marijuana, a digital scale, a handgun, and other items. Blakes was arrested.

Blakes was charged with possession of a controlled substance, felon in possession of a firearm, driving without a valid license, along with a serious felony and a strike allegation. Blakes’ motion to suppress these items was denied by the magistrate, who found that the search was supported by probable cause. Blakes motion to suppress evidence filed with the trial court was also denied. Blakes subsequently filed a petition for writ of mandate with the California Third District Court of Appeal, arguing his suppression motion should have been granted.

Held: The California Third District Court of Appeal explained that the Fourth Amendment guarantees the right to be free of unreasonable searches and seizures by law enforcement personnel. When police conduct a search or seizure without a warrant, the prosecution has the burden of showing the officers’ actions were justified by an exception to the warrant requirement.[4] One exception to the warrant requirement is where an officer has probable cause to believe contraband or evidence of a crime is in an automobile. The automobile exception allows “police who have probable cause to believe a lawfully stopped vehicle contains evidence of criminal activity or contraband [to] conduct a warrantless search of any area of the vehicle in which the evidence might be found.”[5]

The Third District observed that the passage in 2016 of Proposition 64 generally legalized the possession of up to 28.5 grams of cannabis by individuals 21 years or older.[6] The Court explained that provisions of the proposition “fundamentally changed the probable cause determination by specifying lawfully possessed cannabis is ‘not contraband’ and lawful conduct under the statute may not ‘“constitute the basis for detention, search or arrest.”’ [Citation.]”[7] However, the Court noted that even after the enactment of Proposition 64, there is probable cause to search a vehicle if a law enforcement official observes a legal amount of cannabis in an illegal setting.

The Court of Appeal concluded here, however, that the deputies’ search of Blakes’ vehicle was not supported by probable cause. The Court explained here that there were two possible illegal uses of marijuana that could have supported probable cause to believe a crime involving marijuana was being committed (had there been sufficient evidentiary support) – driving under the influence of marijuana[8] and driving with an open container of marijuana.[9] The Court found no evidence nor deputy observation testimony that Blakes was impaired or driving erratically, nor had a sobriety test been administered. Nor was there evidence that either deputy observed an open container before Blakes’ car was searched. The Court stated that the fact that there was a smell of burnt marijuana emanating from the car was insufficient to support either theory of probable cause here. The Third District explained that the smell of burnt marijuana in a car, where there is no indication it had been recently smoked within, cannot by itself provide probable cause of driving under the influence of marijuana. The Court thus declared the automobile exception inapplicable here. Finding in favor of Blakes on other matters as well, the Third District Court of Appeal granted his petition for writ of mandate directing the trial court to vacate its order denying the suppression motion and enter an order granting the motion.

1. Police officer’s hot pursuit of fleeing misdemeanant into a garage did not trigger the exclusionary rule even though the officer relied on binding precedent that was later overturned.

People v. Lange, 2021 Cal. App. LEXIS 1071 (1st Dist. Dec. 20, 2021)

Facts: In October 2016, California Highway Patrol Officer Aaron Weikert observed defendant Arthur Gregory Lange driving a vehicle while blaring loud music and honking unnecessarily, violations of Vehicle Code sections 27007 and 27001, respectively. Officer Weikert followed defendant, turning on his overhead lights to signal that defendant should pull over. Seconds later, defendant arrived at the driveway of his home. Rather than pulling over, defendant drove up his driveway and into his attached garage. Officer Weikert followed defendant into the garage and began questioning him. Defendant appeared intoxicated, prompting the officer to conduct field sobriety tests, which defendant failed. A subsequent blood test showed defendant’s blood-alcohol content was over three times the legal limit.

Defendant was charged with driving under the influence of alcohol and operating a vehicle’s sound system at excessive levels. He moved to suppress all evidence collected by the officer after he entered defendant’s attached garage, contending that the officer’s warrantless entry violated the Fourth Amendment. The trial court denied defendant’s motion. The California First District Court of Appeal affirmed the trial court’s denial of the motion to suppress evidence, and defendant was unsuccessful in petitioning the California Supreme Court for review. However, the United States Supreme Court granted defendant’s petition for writ of certiorari, and issued Lange v. California (2021) 579 U.S. 486 [210 L.Ed.2d 486, 141 S.Ct. 2011]. In that opinion, the high court rejected a categorical rule in hot pursuit cases that would permit warrantless entry into the home of a suspected misdemeanant, and held that whether a misdemeanor pursuit “involve[s] exigencies allowing warrantless entry” must “turn[] on the particular facts of the case.” (Lange v. California, supra, 210 L.Ed.2d at p. 491.) The high court vacated the First District’s prior decision and remanded the case back to the Court of Appeal to reconsider defendant’s challenge in light of the high court’s decision.

Held: The First District Court of Appeal noted that the Fourth Amendment protects the right to be free from “unreasonable searches and seizures,” and that the United States Supreme Court created the exclusionary rule as a deterrent sanction that bars the prosecution from introducing evidence obtained by way of a Fourth Amendment violation. (Davis v. United States (2011) 564 U.S. 229, 231–232.) The First District added that under federal law, “[t]he high court has recognized that the deterrent purpose of the rule is not served by excluding evidence when an officer reasonably acts in objective good faith.” (People v. Macabeo (2016) 1 Cal.5th 1206, 1220.) “Evidence obtained during a search conducted in reasonable reliance on binding appellate precedent [that is later overruled] is not subject to the exclusionary rule,” as “suppression would do nothing to deter police misconduct in [those] circumstances.” (Davis, supra, 564 U.S. at pp. 231, 241.) “[W]hen the police conduct a search in objectively reasonable reliance on binding appellate precedent, the exclusionary rule does not apply.” (Id., at pp. 249–250.)

The First District discussed such binding appellate precedent. The Court noted that People v. Lloyd, (2nd Dist. 1989) 216 Cal.App.3d 1425, held that “a suspect may not defeat a detention or arrest which is set in motion in a public place by fleeing to a private place.” (Id., at p. 1430.) Moreover, the Fourth District in In re Lavoyne M. (4th Dist. 1990) 221 Cal.App.3d 154 followed Lloyd to hold the “hot pursuit of minor into his house to prevent him from frustrating an arrest [for traffic violations] that began in public provides an exception to the warrant requirement.” (Id., at p. 159.) In Stanton v. Sims (2013) 571 U.S. 3, 9–10, the United States Supreme Court expressly acknowledged that the hot pursuit exception in California extended to both felony and misdemeanor suspects, citing Lloyd and Lavoyne M.

The First District acknowledged that the high court’s Lange v. California decision clearly changed this California law when it rejected a categorical rule permitting warrantless entry in hot pursuit cases involving misdemeanor suspects. However, at the time Officer Weikert entered defendant’s home without a warrant, Lloyd and Lavoyne M. were “binding appellate precedent” in California. The First District observed that “evidence obtained from a search should be suppressed only if it can be said that the law enforcement officer had knowledge, or may properly be charged with knowledge, that the search was unconstitutional under the Fourth Amendment.”[10] Here, the Court explained that Officer Weikert could not properly be charged with knowledge that his warrantless entry into defendant’s home violated the Fourth Amendment, given that multiple California cases had, at the time of the Officer Weikert’s entry, authorized warrantless entry in cases involving the hot pursuit of a fleeing misdemeanant.

The Court therefore concluded that under the good faith exception to the Fourth Amendment exclusionary rule, it was not necessary to suppress evidence from Officer Weikert’s warrantless entry. The First District Court of Appeal accordingly affirmed the trial court’s order denying defendant’s motion to suppress.

1. Warrantless blood draws were not Fourth Amendment violations when the driver was unconscious and there was no opportunity for a breath test due to emergency that the driver caused.

People v. Nault, 2021 Cal. App. LEXIS 1068 (2nd Dist. Dec. 20, 2021)

Facts: Alberic Roland Nault had four convictions for drunk driving. In October 2017, he got drunk and tried to pass an 18-wheeler on a narrow road at night. His pickup truck hit an oncoming car and killed its driver. By the time California Highway Patrol officer Carlos Burgos-Lopez arrived at the scene, Nault was semiconscious in an ambulance. His pants were soaked in alcohol, and was injured and was attended to by medical personnel. Although Nault initially said he had been drinking beer, his injuries prevented him from giving the officer a complete statement. Medics moved Nault to a helicopter for emergency evacuation before Officer Burgos-Lopez was able to use a breathalyzer that he had retrieved from his cruiser.

At the hospital, Officer Riley Beckinger, who had been assigned the investigation, found the unconscious Nault. Beckinger smelled a strong smell of alcohol on Nault, and was told by Officer Burgos-Lopez that Nault was under the influence. The medical staff said they would take Nault into surgery soon. Officer Beckinger believed he had no time to get a warrant before the surgery, so he asked a nurse to draw the unconscious Nault’s blood immediately and said that he would get a warrant thereafter. A nurse took two blood samples. Officer Beckinger received the warrant that same night and delivered it to the hospital the next morning. Analysis of the blood revealed that at the time of the blood draw (about two hours after the crash), Nault’s blood alcohol content was 0.14 percent, about twice the legal limit.

A jury convicted Nault of second-degree murder and gross vehicular manslaughter while intoxicated. Nault pleaded no contest to driving a vehicle with a suspended license and admitted four prior convictions for driving under the influence. The trial court sentenced Nault to 15 years to life in state prison. Nault appealed, arguing that the warrantless blood draw violated his Fourth Amendment right against an unreasonable search.

Held: The Second District Court of Appeal first explained that a blood draw is a search governed by the Fourth Amendment. (Birchfield v. North Dakota (2016) 136 S.Ct. 2160, 2173.) A warrantless blood draw is presumed unreasonable unless justified by a recognized exception. (Missouri v. McNeely (2013) 569 U.S. 141, 148.) One such exception is exigent circumstances, which arise when an emergency makes law enforcement needs so compelling that a warrantless search is objectively reasonable. (Id., at pp. 148–149.) The Court of Appeal explained that circumstances are exigent when blood alcohol evidence is dissipating, and a pressing health, safety, or law enforcement need takes priority over a warrant application.[11]

The Court explained that when a driver is unconscious, the general rule is a warrant is not needed.[12] Moreover, the Fourth Amendment “almost always” permits a warrantless blood test when police officers do not have a reasonable opportunity for a breath test before hospitalization.[13] The Court concluded that the general rule governed here, and that exigent circumstances justified the blood draw. The Court observed that Nault created the exigency by injuring himself badly, and he was unconscious and had to be helicoptered to surgery. Caring for Nault’s medical need left no time for a breath test. Accordingly, the Second District affirmed as to this matter.

1. Objective circumstances justified Border Patrol officer’s decision to stop and investigate fleeing plaintiff’s vehicle after plaintiff sighted officer’s vehicle and then fled in a high-crime area.

Elmore v. Gordon, 2021 Cal. App. LEXIS 1101 (2nd Dist. Dec. 30, 2021)

Facts: Shortly after midnight about 15 yards north of the Mexican border, Miguel Ponce of the Border Patrol sat in his parked cruiser watching for people cutting through the border fence and running to large vehicles, like minivans, that would take them away. A black minivan drove into a restricted area, which was off limits to the general public. The amount of light would have made Ponce’s marked vehicle visible to the minivan driver. When the minivan came to approximately 20 yards from Ponce’s vehicle, the minivan U-turned abruptly and quickly sped away. Ponce followed and stopped the minivan.

The driver, Steve Louis Elmore, avoided eye contact, spoke with slurred speech, smelled of alcohol, had bloodshot and watery eyes, and had apparently urinated on himself. Police warned Elmore his license would be suspended or revoked if he refused to take a chemical test for alcohol. Elmore refused. Officials obtained a warrant for a blood draw showing Elmore’s alcohol level was more than twice the limit. The Department of Motor Vehicles (“DMV”) suspended Elmore’s driver’s license for one year because he refused to submit to a blood or breath test. Elmore appealed his license suspension.

Held: The Second District Court of Appeal affirmed. Elmore first argued that Ponce’s temporary investigative stop of Elmore was illegal. The Court disagreed, explaining that sighting and then fleeing police in a high crime area creates a reasonable suspicion that warrants a Terry stop. (Illinois v. Wardlow (2000) 528 U.S. 119, 124-125; Kansas v. Glover (2020) 140 S.Ct. 1183, 1188; People v. Silveria (2020) 10 Cal.5th 195, 236.) The Court found that Ponce reasonably suspected the minivan was involved with illegal smuggling and that objective circumstances justified his decision to stop it and to investigate.

Elmore’s second argument was that police failed to read a particular sentence when warning him that his refusal to submit to chemical testing would result in a license suspension. The omitted sentence was as follows: “Refusal or failure to complete a test will also result in a fine and imprisonment if this arrest results in a conviction of driving under the influence.” However, the Court explained that when police give an incomplete admonition about the consequences of refusing chemical testing, the law limits the permissible sanction to the extent of actual notice. (See Daly v. Department of Motor Vehicles (4th Dist. 1986) 187 Cal.App.3d 257, 262.). Police warned Elmore his driver’s license would be suspended if he refused chemical testing. He refused, and so his license was suspended. However, the DMV was not seeking a fine or imprisonment. As the sanction did not exceed the extent of the actual notice, the Court concluded that the second argument also failed.

EMPLOYMENT

Where wife allegedly contracted COVID-19 at her workplace and her husband contracted it and died, her ensuing claim against her workplace was not preempted by Workers’ Compensation Act exclusivity provisions.

See’s Candies, Inc. v. Superior Court (Ek), 2021 Cal. App. LEXIS 1076 (2nd Dist. Dec. 21, 2021)

Facts: See’s Candies, Inc. and See’s Candy Shops, Inc. (collectively, “defendants”) operated a candy assembly and packing line. Matilde Ek (“Mrs. Ek”) was employed by defendants. Mrs. Ek was the wife of decedent Arturo Ek (“Mr. Ek”). Mrs. Ek and the Eks’ daughters (collectively, “plaintiffs” and real parties and interest) filed a complaint against defendants in late December 2020, alleging that in March 2020, Mrs. Ek contracted COVID-19 at work because of defendants’ failure to implement adequate safety measures. Plaintiffs claimed that Mr. Ek subsequently caught COVID-19 from Mrs. Ek while she convalesced at home. Mr. Ek died from the disease in April 2020. Plaintiffs asserted causes of action for general negligence and premises liability. They sought “all recoverable damages for the wrongful death of [Mr. Ek], including loss of love, care, comfort and society.” Mrs. Ek, as Mr. Ek’s successor in interest, also sought economic losses for medical and care costs for the period from Mr. Ek’s infection until his death.

Defendants filed a demurrer asserting that plaintiffs’ claims were preempted by the Workers’ Compensation Act (“WCA”; Labor Code section 3200 et seq.) under the derivative injury doctrine. Under this doctrine, “the WCA’s exclusivity provisions preempt not only those causes of action premised on a compensable workplace injury, but also those causes of action premised on injuries ‘“collateral to or derivative of”’ such an injury.”[14] The doctrine applied, defendants argued, because plaintiffs could not state a claim against defendants for Mr. Ek’s death without alleging an injury to an employee, namely Mrs. Ek’s workplace infection with COVID-19. Defendants argued that plaintiffs’ claims were therefore subject to WCA exclusivity. The trial court rejected this argument and overruled the demurrer. Defendants subsequently petitioned for a writ of mandate directing the trial court to vacate its order overruling defendants’ demurrer.

Held: The California Second District Court of Appeal explained that the WCA is a comprehensive statutory scheme governing compensation given to California employees for injuries incurred in the course and scope of their employment. Under the WCA’s “compensation bargain,” the employer assumes liability for industrial personal injury or death without regard to fault in exchange for limitations on the amount of that liability. The employee, for his or her part, is provided relatively fast and certain payment of benefits to cure or relieve the effects of industrial injury without having to prove fault but, in exchange, gives up the wider range of damages potentially available in tort.[15] “[T]he WCA generally limits an employee’s remedies against an employer for work-related injuries to those remedies provided by the statute itself.”[16]

The Court explained that WCA exclusivity is not limited to claims brought by injured employees themselves. The workers’ compensation system also is “the exclusive remedy for certain third-party claims deemed collateral to or derivative of the employee’s injury” (Snyder v. Michael’s Stores, Inc. (1997) 16 Cal.4th 991, 997), a principle courts have referred to as the “derivative injury rule” or “derivative injury doctrine.”

Defendants contended that under Snyder, a claim is derivative if it would not exist absent injury to the employee. Because plaintiffs alleged Mr. Ek contracted COVID-19 from Mrs. Ek, who in turn contracted the disease at work, defendants argued that Mr. Ek’s death would not have occurred absent Mrs. Ek’s workplace exposure, and thus was derivative of Mrs. Ek’s work-related injury. Defendants argued that plaintiffs’ claims were thus subject to WCA exclusivity.

Even assuming for the sake of defendant’s argument that Mrs. Ek’s workplace infection constituted an injury under the WCA, the Second District rejected defendants’ efforts to apply the derivative injury doctrine to any injury causally linked to an employee injury. The Court stated that defendants’ interpretation was inconsistent with the language of Snyder, which established that the fact an employee’s injury is the biological cause of a nonemployee’s injury does not thereby make the nonemployee’s claim derivative of the employee’s injury.

The Court also found that the California Supreme Court’s discussion in Snyder of prior case law applying the derivative injury doctrine did not support applying the doctrine based solely on causation. Snyder approved of cases applying the doctrine to claims by family members for losses stemming from an employee’s disabling or lethal injury, such as wrongful death, loss of consortium, or emotional distress from witnessing a workplace accident. In contrast, the Snyder Court called into question a case applying the derivative injury doctrine outside these contexts based on causation alone. The Second District explained that defendants’ interpretation of the derivative injury doctrine would lead to anomalous results, shielding employers from civil liability in contexts the drafters of the WCA could not have intended.[17]

The Second District concluded that the derivative injury doctrine did not apply here because plaintiffs did not seek damages for losses arising from a disabling or lethal injury to Mrs. Ek, such as loss of her support or companionship, or emotional trauma caused by observing Mrs. Ek’s suffering. Nor did they sue for “injuries that arose during the treatment of [an employee’s] industrial injury” or “in the course of the workers’ compensation claims process.”[18] Instead, they sued for damages arising from Mr. Ek’s death, an event allegedly causally related to Mrs. Ek’s alleged infection by the virus in the workplace, but under Snyder, not derivative of that infection. Accordingly, the Second District Court of Appeal denied the defendants’ petition.[19]

PUBLIC RECORDS

A Public Records Act request was not unduly burdensome because the request specified particular email addresses and so the emails, although numerous, would be easy to locate.

Getz v. Superior Court (County of El Dorado), 72 Cal. App. 5th 637 (3rd Dist. 2021)

Facts: Dean Getz was a member of the Serrano El Dorado Owners Association (“Serrano”), a homeowners association developed and managed by Parker Development Company (“Parker”). In March 2018, Getz sought records under the California Public Records Act (Government Code section 6250 et seq.; the “Act”) regarding the County of El Dorado’s (the “County”) contacts with Serrano and Parker. The County produced an index of responsive documents, including emails, on a CD with hyperlinks to the text of the emails or documents. Getz believed that not all responsive records were produced, so he expanded the scope of the request to include all emails from January 2013 to August 1, 2018, between four email domain names (that were associated with Serrano or Parker and its representatives) and any department of the County. The County newly identified 42,582 emails, and produced an index which identified the sender, recipient, subject, date and whether the email had an attachment. However, this time the emails were not readable; this index contained no hyperlinked text. Getz informed the County that he needed the text of these responsive emails, and he reiterated his request for their production. The County did not respond.

Getz filed a petition for writ of mandate directing the County to produce the records he sought. The trial court agreed with the County that the request was overbroad and unduly burdensome. Getz filed a petition for writ of mandamus in the California Third District Court of Appeal seeking a direction to the trial court to vacate its decision denying his petition and require the County to produce the responsive records identified in the index that lacked hyperlinked email text.

Held: The Third District noted that in an appellate court’s review of a trial court’s order supporting a public agency’s decision to refuse to disclose records, “‘exemptions are construed narrowly, and the burden is on the public agency to show that the records should not be disclosed.’” (California First Amendment Coalition v. Superior Court (3rd Dist. 1998) 67 Cal.App.4th 159, 167, quoting Rogers v. Superior Court (2nd Dist. 1993) 19 Cal.App.4th 469, 476.) The Court explained that the Act’s Section 6257 compels an agency to provide a copy of nonexempt records upon a request “which reasonably describes an identifiable record, or information produced therefrom ….” The Court initially determined that Getz had presented a sufficiently “specific and focused request”[20] to the County. The Court observed, however, that even “[a] clearly framed request…which compels production of a huge volume of material may be objectionable as unduly burdensome.”[21] Nonetheless, an agency is “obliged to comply so long as the record can be located with reasonable effort.”[22]

The County protested the volume of emails responsive to Getz’s request, and speculated that many of the documents were not likely to relate to the conduct of official business and consequently might be exempt from disclosure. The County also asserted that the need to review all the emails to determine if they contained privileged information and to verify that they were public documents would impose an enormous burden.

The Third District disagreed. The Court noted that the County had already located and indexed the responsive 42,582 email documents using the criteria in Getz’s request before he filed a petition for writ of mandate, but simply refused to produce them. The Court also noted that the burden to assert and establish exemption from disclosure is on the agency. The Court stated that an agency “cannot resist disclosure based on the burden stemming from actions needed to assuage an abstract fear of improvident disclosure, a fear that could be avoided by simply setting privileged documents apart.”

The Third District Court of Appeal accordingly concluded that the trial court’s finding that the request was “overbroad and unduly burdensome” was not supported by substantial evidence. The Court of Appeal accordingly granted the petition in part. The Third District ordered the trial court to vacate that portion of its order denying Getz’s request for production of the relevant emails and to order the County to produce the text of emails and any attachments on the County’s index of 42,852 responsive e-mails. The County would be required to pay Getz’s “costs and reasonable attorney fees” in an amount to be determined by the trial court. (Section 6259(d).)

MISCELLANEOUS

The wiretap statute does not impose the requirement that an application filed in the District Attorney’s absence include information detailing the specific circumstances of the absence.

People v. Gonzalez, 12 Cal. 5th 367 (2021)

Facts: In March 2006, Los Angeles County Sheriff’s Department Deputy Maria Rosa was found lying dead on the ground outside of her house. A medical examiner identified gunshot wounds, and concluded that Rosa had died from internal bleeding caused by the gunshots. Based on DNA evidence and information obtained by confidential informants, law enforcement personnel began to focus their investigation on Frank Christopher Gonzalez and another man. Law enforcement obtained an order authorizing a wiretap on six different phone lines that were affiliated with Gonzalez and his acquaintances. John Spillane, the chief deputy district attorney for Los Angeles County, signed the wiretap application and attested that he was “the person designated to act as District Attorney in [District Attorney Steve Cooley’s] absence.” Pursuant to those wiretaps, police intercepted conversations between Gonzalez’s former longtime girlfriend and Gonzalez’s sister. Gonzalez was subsequently charged with Rosa’s murder and other charges. A jury found Gonzalez guilty of, among other things, first degree murder, and returned a death verdict. The trial court entered a judgment of death. An automatic appeal followed.

Held: On appeal, Gonzalez argued that the wiretap application was invalid because it failed to include information describing the circumstances of District Attorney Cooley’s absence. Gonzalez argued that without such information, there was no way to verify whether Cooley was truly absent at the time that Spillane filed the application. Gonzalez asserted that the trial court should have suppressed any evidence derived from communications that law enforcement intercepted pursuant to the wiretap order.

The Supreme Court of California noted that the wiretap law (Penal Code section 629.50 et seq.) provides that “[e]ach application for an order authorizing the interception of a wire or electronic communication shall be made in writing upon the personal oath or affirmation of the Attorney General … or of a district attorney, or the person designated to act as district attorney in the district attorney’s absence.” (Section 629.50(a).) The Court noted that while Section 629.50(a) sets forth a detailed description of additional categories of information a wiretap application must contain, the statute does not require that the application describe the circumstances of the district attorney’s absence.

The Supreme Court noted that Chief Deputy Spillane’s wiretap application included an oath that incorporated the exact statutory language of Section 629.50(a). The Court found that the express provisions of the wiretap statute required nothing more. The Court observed that Spillane attested in the wiretap application, “Steve Cooley is the District Attorney of the County of Los Angeles, and I am the person designated to act as District Attorney in his absence pursuant to Penal Code [s]ection 629.50(a).” The Court explained that statement was most reasonably construed as a declaration that the district attorney was in fact absent. The Court held that Section 629.50(a) does not require that when a person designated to act as district attorney in the district attorney’s absence seeks a wiretap order, the application must include information that explains the circumstances of the district attorney’s absence. The Supreme Court ultimately affirmed.

[1] See Miranda v. Arizona, 384 U.S. 436 (1966).

[2] See People v. Matlock, 51 Cal.2d 682, 697 (1959).

[3] See People v. Guerra, 37 Cal.4th 1067, 1093 (2006), disapproved on other grounds in People v. Rundle, 43 Cal.4th 76, 151 (2008).

[4] People v. Camacho, 23 Cal.4th 824, 830 (2000).

[5] See People v. Evans, 200 Cal.App.4th 735, 753 (2nd Dist. 2011).

[6] See Health and Safety Code section 11362.1(a)(1).

[7] People v. Hall, 57 Cal.App.5th 946, 954 (1st Dist. 2020).

[8] Vehicle Code section 23152(a).

[9] Vehicle Code section 23222.

[10] See United States v. Leon (1984) 468 U.S. 897, 919, and Macabeo, supra, 1 Cal.5th at p. 1220 (italics added).

[11] Mitchell v. Wisconsin, 139 S.Ct. 2525, 2537 (2019) (plur. opn. of Alito, J.); Schmerber v. California, 384 U.S. 757, 770–771 (1966).

[12] Id., at p. 2531.

[13] Id., at p. 2539.

[14] King v. CompPartners, Inc., 5 Cal.5th 1039, 1051 (2018).

[15] See Id., at pp. 1046–1047.

[16] Id., at p. 1051; see also Labor Code sections 3600 and 3602.

[17] The Court of Appeal remarked that “[a]lthough the breadth of the derivative injury doctrine presents serious policy considerations, Snyder recognizes that such policy considerations are within the province of the Legislature and should not be judicially addressed by expansion of the derivative injury doctrine.”

[18] King, supra, 5 Cal.5th at pp. 1052–1053.

[19] The Second District added that because the parties framed the writ exclusively to address the applicability of the WCA, the Court declined to address whether defendants owed Mr. Ek a duty of care or whether plaintiffs could demonstrate that Mr. or Mrs. Ek contracted COVID-19 because of any negligence in defendants’ workplace, as opposed to another source during the COVID-19 pandemic.

[20] Rogers, 19 Cal.App.4th at p. 481; California First, 67 Cal.App.4th at p. 165.

[21] California First, 67 Cal.App.4th at p. 166.

[22] Id.

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.

1. 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)).

CPOA CASE SUMMARIES – OCTOBER 2021

CONSTITUTIONAL LAW/POLICE CONDUCT

Even assuming a police officer testified falsely during administrative proceedings, there was no due process violation because plaintiff was granted a second administrative hearing that voided his license suspension.

Miranda v. City of Casa Grande, 2021 U.S. App. LEXIS 31331 (9th Cir. Oct. 19, 2021)

Facts: In July 2017, Officer Richard Rush of the Casa Grande, Arizona Police Department arrested an intoxicated Adrian Miranda after Miranda failed to comply with repeated officer orders to exit his vehicle stopped in a vehicle lane of traffic before finally doing so, wherein he showed signs of intoxication. Later at the Casa Grande police station, Miranda admitted to having consumed six beers and a breath test revealed a blood alcohol content of 0.137%. Miranda was placed under arrest for driving under the influence (“DUI”). Under Arizona’s implied consent law, a person who operates a motor vehicle in the state consents to blood tests if arrested on suspicion of a DUI. Miranda refused Officer Rush’s repeated requests for consent to testing, though Miranda was warned after his first refusal that his Arizona driving privileges would be suspended for twelve months. Later, however, Miranda stated to Officer McKinney, “Can you let them know I’m doing the blood work?” Officer McKinney told Officer Rush that Miranda had said “he’s doing bloodwork.” Miranda’s blood test revealed a blood alcohol concentration above the legal limit for driving or physically controlling a motor vehicle in Arizona. Miranda was charged with DUI. Miranda later pled guilty to disorderly conduct and failure to comply with law enforcement in exchange for dismissal of the DUI.

Arizona law afforded Miranda the opportunity to contest his driver’s license suspension in a hearing before a state administrative law judge (“ALJ”), which he did. At the hearing, Officer Rush testified that at no point did Miranda change his mind and say that he would take the blood test. The ALJ found Officer Rush sufficiently credible, and found that Miranda declined to submit to the blood test and did not change his mind. The ALJ suspended Miranda’s license for twelve months. Subsequently, Miranda learned of Casa Grande Police Department surveillance video footage that showed him telling Officer McKinney of his willingness to undergo a blood draw. At a second administrative hearing before a different ALJ, the ALJ found that Officer McKinney’s statements were “a clear advisement” that Miranda had recanted his refusal, and had in the end voluntarily submitted to the blood draw. The second ALJ thus voided Miranda’s license suspension.

Miranda sued the City of Casa Grande and Officer Rush, alleging several claims under state law, and a 42 U.S.C. section 1983 count against Officer Rush. Miranda alleged that Rush lied under oath to the ALJ, and thereby deprived Miranda of his right to procedural due process under the Fourteenth Amendment. A federal District Court granted the defendants summary judgment on the Section 1983 claim, and remanded remaining state law claims to state court. Miranda appealed, arguing that Officer Rush’s “deliberately false testimony” violated due process because it led to the temporary suspension of his driver’s license.

Held: The Ninth Circuit Court of Appeals affirmed. The Court first noted that there is no express constitutional guarantee or other federal right to a driver’s license, so that its deprivation does not violate substantive due process. Miranda’s claim therefore sounded, if at all, in procedural due process. A procedural due process claim has two elements: “(1) a deprivation of a constitutionally protected liberty or property interest, and (2) a denial of adequate procedural protections.”[1] The Court noted that the touchstone of procedural due process is notice and an opportunity to be heard.[2]

The Court held that Miranda failed to demonstrate a procedural due process violation because, even assuming Officer Rush testified falsely at the administrative hearing as to whether Miranda consented to a blood test following his arrest for driving under the influence, Arizona provided sufficient post-deprivation process to Miranda. The Court noted that, following the discovery of the officer’s alleged unauthorized conduct, Miranda was granted a second administrative hearing before a new ALJ, who ultimately voided the suspension and reinstated Miranda’s license. Moreover, Arizona also allowed Miranda to bring a state law claim, which he was pursuing in Arizona state court. The Court held that the post-deprivation procedures were both meaningful and sufficient under the Due Process Clause. The Ninth Circuit explained that because Arizona had provided Miranda with sufficient post-deprivation mechanisms, Miranda could not demonstrate a procedural due process violation and had “received all the process that was due.” Raditch v. United States, 929 F.2d 478, 480 (9th Cir. 1991). Thus, Miranda’s Section 1983 claim failed.

QUALIFIED IMMUNITY

A. Supreme Court reverses Ninth Circuit’s decision to deny officer qualified immunity.

Rivas-Villegas v. Cortesluna, 2021 U.S. LEXIS 5311 (Oct. 18, 2021)

Facts: Daniel Rivas-Villegas, a Union City police officer, and four other officers responded to a 911 call reporting that a woman and her two daughters had shut themselves into a room in their house because the mother’s boyfriend, Ramon Cortesluna, was trying to hurt them. Cortesluna, complying with officer commands, walked out of the house towards the officers with his hands up before stopping 10 to 11 feet from the officers. An officer then saw a knife sticking out from the front left pocket of Cortesluna’s pants, and announced the same to the other officers. Although Cortesluna was told not to put his hands down, Cortesluna lowered his head and his hands in contravention of the officer’s orders. An officer twice shot Cortesluna with a beanbag shotgun, once in the lower stomach and once in the left hip. Cortesluna then complied with officer orders to get down. Officer Rivas-Villegas then placed his left knee on the left side of Cortesluna’s back, near where Cortesluna had a knife in his pocket, while raising both of Cortesluna’s arms up behind his back. Officer Rivas-Villegas was in this position for no more than eight seconds before standing up while continuing to hold Cortesluna’s arms. Another officer, who had just removed the knife from Cortesluna’s pocket and tossed it away, handcuffed Cortesluna.

Cortesluna sued under 42 U. S. C. 1983, claiming, as relevant here, that Officer Rivas-Villegas used excessive force in violation of the Fourth Amendment in kneeling on his back. The District Court granted summary judgment to Officer Rivas-Villegas. Relying solely on LaLonde v. County of Riverside,^[3] the Ninth Circuit Court of Appeals reversed, holding that Officer Rivas-Villegas was not entitled to qualified immunity because LaLonde put him on notice that his conduct constituted excessive force.

Held: The United States Supreme Court explained that “[q]ualified immunity attaches when an official’s conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.” White v. Pauly, 580 U. S. ___, ___ (2017) (per curiam) (slip op., at 6) (internal quotation marks omitted). Although Supreme Court case law “does not require a case directly on point for a right to be clearly established, existing precedent must have placed the statutory or constitutional question beyond debate.” Id. (alterations and internal quotation marks omitted). The Supreme Court determined that to show a violation of clearly established law here, Cortesluna had to identify a case that put Officer Rivas-Villegas on notice that his specific conduct was unlawful.

The Supreme Court found that the situation in LaLonde and the situation at issue here differed in several significant aspects. In LaLonde, officers were responding to a noise complaint, whereas here they were responding to a serious alleged incident of domestic violence possibly involving a chainsaw. LaLonde was unarmed, whereas Cortesluna had a knife protruding from his left pocket for which he had just previously appeared to reach. Also, Officer Rivas-Villegas placed his knee on Cortesluna’s back for no more than eight seconds and only on the side of his back near the knife that officers were in the process of retrieving. LaLonde, in contrast, testified that the officer deliberately dug his knee into his back when he had no weapon and had made no threat when approached by police. The Supreme Court found that these facts, considered together in the context of this particular arrest, materially distinguished the case here from LaLonde. LaLonde thus did not govern the facts of this case. The Court concluded that on the facts here, neither LaLonde nor any decision of the Supreme Court was sufficiently similar. Accordingly, the Supreme Court granted Officer Rivas-Villegas’ petition for certiorari and reversed the Ninth Circuit’s decision to deny him qualified immunity.

For a more detailed discussion of this case, please see Client Alert Vol. 36, No. 19, available at www.jones-mayer.com.

B. Supreme Court concludes that police officers did not violate any clearly established law, and were thus entitled to qualified immunity.

City of Tahlequah v. Bond, 2021 U.S. LEXIS 5310 (Oct. 18, 2021)

Facts: In August 2016, police officers Josh Girdner, Chase Reed, and Brandon Vick responded to a 911 call from the ex-wife of Dominic Rollice, who reported that an intoxicated Rollice was in her garage and would not leave. Joy requested police assistance. The officers encountered Rollice and began speaking with him in the garage doorway. Rollice began fidgeting with something in his hands and the officers noticed that he appeared nervous. Officer Girdner asked if he could pat Rollice down for weapons, but Rollice refused. Police body-camera video captured the events that followed. As the conversation continued, Officer Girdner gestured with his hands and took one step toward the doorway, causing Rollice to take one step back. Rollice turned around and walked toward the back of the garage where his tools were hanging. Officer Girdner followed, with the others close behind. No officer was within six feet of Rollice. Although officers ordered Rollice to stop, Rollice kept walking, grabbed a hammer from the back wall and turned around to face the officers. He grasped the handle of the hammer with both hands, as if preparing to swing a baseball bat, and pulled it up to shoulder level. The officers backed up, drawing their guns. The officers can be heard on video yelling at Rollice to drop the hammer, but Rollice did not do so. He took a few steps to his right, coming out from behind a piece of furniture so that he had an unobstructed path to Officer Girdner. He then raised the hammer higher back behind his head and took a stance as if he was about to throw the hammer or charge at the officers. In response, Officers Girdner and Vick fired their weapons, killing Rollice.

Rollice’s estate filed suit against, among others, Officers Girdner and Vick, alleging that the officers were liable under 42 U. S. C. section 1983 for violating Rollice’s Fourth Amendment right to be free from excessive force. The District Court granted the officers’ motion for summary judgment, both on the merits and on qualified immunity grounds. The Tenth Circuit Court of Appeals reversed. As to qualified immunity, the Tenth Circuit concluded that several cases clearly established that the officers’ conduct was unlawful. The officers petitioned for writ of certiorari.

Held: The Supreme Court of the United States explained that on the record here, “the officers plainly did not violate any clearly established law.” The Court observed that the doctrine of qualified immunity shields officers from civil liability so long as their conduct “does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.” Pearson v. Callahan, 555 U. S. 223, 231 (2009). The Court explained that it is not enough that a rule be suggested by then-existing precedent; the “rule’s contours must be so well defined that it is ‘clear to a reasonable officer that his conduct was unlawful in the situation he confronted.’” District of Columbia v. Wesby, 583 U. S. ___, ___ -___ (2018) (slip op., at 14) (quoting Saucier v. Katz, 533 U. S. 194, 202 (2001)). Such specificity is “especially important in the Fourth Amendment context,” where it is “sometimes difficult for an officer to determine how the relevant legal doctrine, here excessive force, will apply to the factual situation the officer confronts.” Mullenix v. Luna, 577 U. S. 7, 12 (2015) (per curiam) (internal quotation marks omitted).

The Supreme Court stated that the Tenth Circuit contravened those settled principles here. The high court stated that none of the decisions^[4] upon which the Court of Appeals relied came close to establishing that the officers’ conduct was unlawful. Because neither the Circuit Court majority nor Rollice’s estate had identified any precedent finding a Fourth Amendment violation under similar circumstances, the Supreme Court concluded that the police officers “plainly” did not violate any clearly established law. The officers were therefore entitled to qualified immunity. Accordingly, the Supreme Court granted the officers’ petition for certiorari, as well as the motions for leave to file briefs amici curiae, and reversed the judgment of the Court of Appeals.

For a more detailed discussion of this case, please see Client Alert Vol. 36, No. 22, available at www.jones-mayer.com.

EMPLOYMENT

In a Fair Employment and Housing Act claim, an arbitration agreement cannot award fees to a defendant without a showing that the claim was frivolous.

Patterson v. Superior Court, 2021 Cal. App. LEXIS 863 (2nd Dist. Oct. 18, 2021)

Facts: Michael Patterson, a former employee of real party in interest Charter Communications, Inc., sued Charter in April 2020 under the California Fair Employment and Housing Act (“FEHA”) (Government Code section 12900 et seq.) for claims related to alleged sexual harassment. Charter moved to compel arbitration of Patterson’s FEHA claims pursuant to the parties’ written agreement to arbitrate all employment-related disputes. The superior court granted Charter’s motion to compel. Charter then moved for an award of attorney fees incurred in moving to compel arbitration on the ground that Charter was the prevailing party and the arbitration agreement had an attorneys’ fees provision specifically providing such relief to the prevailing party on a motion to enforce the agreement.[5] The superior court granted Charter’s motion. In May 2021, Patterson filed a petition for writ of mandate. He argued, as relevant here, that the superior court had erred in awarding attorney fees because FEHA does not permit an employer to shift attorney fees to a plaintiff employee unless the employee’s actions were objectively frivolous.

Held: The California Second District noted that in actions under FEHA, a successful plaintiff is entitled to recover his or her reasonable attorney fees. A prevailing defendant, however, may not be awarded attorney fees or costs “unless the court finds the action was frivolous, unreasonable, or groundless when brought, or the plaintiff continued to litigate after it clearly became so.” (Government Code section 12965(b).) This is an asymmetric standard aligned with the intentions of the Legislature and Congress “‘to encourage persons injured by discrimination to seek judicial relief.’”[6] The Second District explained that FEHA claims may be included in a predispute arbitration agreement, but an employer that seeks to compel arbitration of FEHA claims may not limit statutorily imposed remedies or require the employee to bear any type of expense that the employee would not be required to bear if he or she were free to bring the action in court. Armendariz v. Foundation Health Psychcare Services, Inc. (2000) 24 Cal.4th 83, 103, 110–111 (italics removed). “[A]n arbitration agreement cannot be made to serve as a vehicle for the waiver of statutory rights created by the FEHA.” (Id. at p. 101.)

The Court explained that because a fee-shifting clause directed to a motion to compel arbitration, like a general prevailing party fee provision, risks chilling an employee’s access to court in a FEHA case absent Section 12965(b)’s asymmetric standard for an award of fees, a prevailing defendant may recover fees in this situation only if it demonstrates the plaintiff’s opposition was groundless.

The Court observed here that no such finding was made by the superior court before awarding Charter its attorney fees after granting Charter’s motion to compel. The Second District Court of Appeal accordingly granted Patterson’s petition for writ, and directed the superior court to vacate its order awarding attorney fees to Charter and to conduct a new hearing to reconsider Charter’s motion for attorney fees.

MISCELLANEOUS

A. California Assembly Bill 32 impedes federal immigration policy.

GEO Grp., Inc. v. Newsom, 2021 U.S. App. LEXIS 29898 (9th Cir. Oct. 5, 2021)

Facts: California Governor Gavin Newsom signed AB 32 into law, which bans private detention facilities in California within this decade. The United States Immigration and Customs Enforcement (“ICE”) does not build or operate any immigration detention facilities because of seasonal and other fluctuations in immigration. ICE relies exclusively on privately operated detention facilities, including some facilities in California. The GEO Group, Inc., is a company that contracted with the federal government in 2019 to operate two private immigration detention centers in California. Shortly after the passage of AB 32, the United States and GEO Group (“Appellants”) sued Governor Newsom and then-Attorney General Xavier Becerra (collectively, “California”), seeking a preliminary and permanent injunction against AB 32. They argued that AB 32 conflicted with federal law and violated the intergovernmental-immunity doctrine. California moved to dismiss GEO’s complaint and for a judgment on the pleadings for the federal government’s complaint. The District Court granted California’s motions, found that Appellants were unlikely to succeed on the merits, and denied the request for a preliminary injunction. The District Court held that the wellbeing of detainees falls within a state’s traditional police powers.

Held: The Ninth Circuit Court of Appeals explained that the Supremacy Clause of the United States Constitution makes the laws of the United States “the supreme Law of the Land.” U.S. Const. art. VI, cl. 2. A state law cannot stand if “the challenged [state] law stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress.”[7] “[T]he purpose of Congress is the ultimate touchstone in every pre-emption case.” Wyeth v. Levine, 555 U.S. 555, 565 (2009). (quoting Medtronic, Inc. v. Lohr, 518 U.S. 470, 485 (1996)) (internal quotations omitted). Under the presumption against preemption, courts should assume that federal law does not supersede the historic police powers of the states “unless that was the clear and manifest purpose of Congress.” Id. (quoting Medtronic, 518 U.S. at 485).

The Ninth Circuit concluded that the presumption against preemption did not apply to AB 32, and that the District Court erred in applying it here. From AB 32’s statutory language as well as its context, the Ninth Circuit concluded that California law regulated the federal government’s detention of undocumented and other removable immigrants. The Court observed that Penal Code sections 9500 and 9501 (added by AB 32) prohibit operating a detention facility “pursuant to a contract . . . with a governmental entity,” but the text did not limit “governmental entity” to only state or local governments – it also purposefully included the federal government, which detains thousands of people within California. The Court stated that AB 32’s intentional inclusion of the federal government contrasted with other Penal Code provisions that apply to the treatment of people held only in state prisons or county jails. Thus, the Court found that the plain language of AB 32 targeted mainly the federal government and its detention policies. The Ninth Circuit also concluded that California had not historically regulated the conditions of detainees in federal custody, and specifically those housed in immigrant detention centers, because the federal government exclusively regulates immigration detention and removals.[8] Moreover, the Ninth Circuit explained that Congress unambiguously granted the DHS Secretary broad discretion over immigrant detention, including the right to contract with private companies to operate detention facilities.[9] The Court declared that AB 32 conflicted with the Secretary’s statutory power to contract with private detention facilities. AB 32 thus could not stand because it conflicted with this federal power and discretion given to the Secretary in an area that remains in the exclusive realm of the federal government, and barred the Secretary from doing what federal immigration law explicitly permits the Secretary to do.

The Ninth Circuit also held that AB 32 discriminated against the federal government in violation of the intergovernmental-immunity doctrine. Under the intergovernmental-immunity doctrine, a state may not “regulate[] the United States directly or discriminate[] against the Federal Government or those with whom it deals.”^[10] The Court held that AB 32 discriminated against the federal government because AB 32 required the federal government to close all its detention facilities, including its ICE facilities, and did not require California to close any of its private detention facilities until 2028.

The Ninth Circuit therefore held that the Appellants were likely to prevail on the merits of their motion for a preliminary injunction. The Ninth Circuit Court of Appeals accordingly reversed the District Court’s orders denying the motion of the United States and GEO Group for a preliminary injunction, and granting the State of California’s motions to dismiss and for judgment on the pleadings. The Court remanded the case for further proceedings.

For a more detailed discussion of this case, please see Client Alert Vol. 36, No. 21, available at www.jones-mayer.com.

B. Police may petition to dispose of the firearms of individuals who were placed on a mental health hold and assessed, but not admitted for further evaluation.

Folsom Police Dep’t v. M.C., 69 Cal. App. 5th 1052 (3rd Dist. 2021)

Facts: In July 2019, Folsom Police Department officers detained M.C. inside his car. Police had earlier learned from an employee of a mental health provider that M.C. had been seen for anger management issues and had said, “I guess I will shoot myself in the head” before leaving the provider’s offices. Prior to M.C.’s detention, police had also discovered that M.C. had a permit to carry a concealed weapon and possessed several registered firearms. After detaining M.C., the officers took possession of a loaded firearm that M.C. was carrying. Police concluded that M.C. posed a significant danger to himself and/or others, and told M.C. he was going to be placed on a 72-hour mental health evaluation hold, under Welfare and Institutions Code section 5150. M.C. agreed to surrender his 25 other firearms, which police later retrieved. An officer took M.C. to a hospital and completed a form explaining the decision for the Section 5150 detention. Hospital records indicated that M.C. arrived for an involuntary hold status assessment, and that about six hours later, a medical doctor concluded that that outpatient care was the most appropriate option for M.C. The doctor explained that it “appeare[d] that [M.C.’s] clinic erred on the side of safety [by] calling the police,” as M.C. “made a comment out of frustration.” The doctor concluded that M.C. was “not an imminent danger to self or others at this time and does not meet the legal criteria for involuntary admission.” M.C. was immediately released thereafter.

In August 2019, the Folsom Police Department and City of Folsom (collectively, “Folsom” hereafter) filed a petition asking the trial court to authorize it to lawfully dispose of M.C.’s firearms, pursuant to Welfare and Institutions Code section 8102. Folsom asserted that despite M.C.’s release from the involuntary hold by the hospital staff, M.C. nevertheless posed a danger to himself and others. After hearing oral argument but refusing to allow witness testimony, the trial court denied the petition, relying on City of San Diego v. Kevin B. (4th Dist. 2004) 118 Cal.App.4th 933 (“Kevin B.”) for the trial court’s reasoning that Folsom had no authority to petition for such authorization, as M.C. was assessed but not also “evaluated” during the involuntary hold. Folsom appealed.

Held: The California Third District Court of Appeal concluded that the trial court erred when it ruled that it had no authority to conduct a firearms forfeiture hearing under Section 8102, on the ground that M.C. had not been both assessed and evaluated during an involuntary psychiatric hold under Section 5150. The Court of Appeal explained that Kevin B. held that, under the plain language of Section 8102, if someone were never detained or apprehended for examination of his or her mental condition, a law enforcement agency would have “no power to bring a petition under section 8102, subdivision (c),” as that provision explicitly contemplates such petitions within 30 days of the “release” of such persons. (Kevin B., supra, 118 Cal.App.4th at p. 943.) The Third District explained that Kevin B. did not support the trial court’s ruling that the trial court could not even consider Folsom’s petition, because M.C. was not both assessed and evaluated. The Court of Appeal determined that the language in Kevin B. upon which the trial court relied was dicta as Kevin B. was never even detained. Here, by contrast, M.C. was detained (and assessed, but not evaluated) and then released, satisfying the threshold requirement of Section 8102, subdivision (c). Accordingly, the Third District concluded that the trial court’s ruling was in error, vacated the trial court’s ruling and remanded for a hearing on the merits.

[1] Franceschi v. Yee, 887 F.3d 927, 935 (9th Cir. 2018) (quoting Hufford v. McEnaney, 249 F.3d 1142, 1150 (9th Cir. 2001)).

[2] Dusenbery v. United States, 534 U.S. 161, 167 (2002).

[3] 204 F.3d 947 (9th Cir. 2000).

[4] Estate of Ceballos v. Husk, 919 F.3d 1204 (10th Cir. 2019), Hastings v. Barnes, 252 F. App’x 197 (10th Cir. 2007), Allen v. Muskogee, 119 F.3d 837 (10th Cir. 1997), and Sevier v. Lawrence, 60 F.3d 695 (10th Cir. 1995).

[5] Charter’s arbitration agreement stated in relevant part, “If any judicial action or proceeding is commenced in order to compel arbitration, and if arbitration is in fact compelled, or the party resisting arbitration submits to arbitration following the commencement of the action or proceeding, the party that resisted arbitration will be required to pay the other party all costs, fees and expenses that they incur in compelling arbitration, including, without limitation, reasonable attorneys’ fees.”

[6] Williams v. Chino Valley Independent Fire Dist., 61 Cal.4th 97, 112 (2015) (citation omitted).

[7] Hughes v. Talen Energy Mktg., LLC, 136 S. Ct. 1288, 1297 (2016) (internal quotation marks omitted) (quoting Crosby v. Nat’l Foreign Trade Council, 530 U.S. 363, 373 (2000)).

[8] See United States v. Locke, 529 U.S. 89, 99 (2000) [holding that the presumption against preemption does not apply in areas with a “history of significant federal presence”].

[9] 8 U.S.C. section 1231(g) grants the Secretary “broad discretion in exercising his authority to choose the place of detention for deportable aliens.” Comm. of Cent. Am. Refugees v. INS, 795 F.2d 1434, 1440 (9th Cir.), amended, 807 F.2d 769 (9th Cir. 1986).

[10] Id. (quoting North Dakota v. United States, 495 U.S. 423, 436, 110 S. Ct. 1986, 109 L. Ed. 2d 420 (1990) (plurality opinion) (Stevens, J.)) (alteration in original).

CPOA CASE SUMMARIES – SEPTEMBER 2021

CONSTITUTIONAL LAW/POLICE CONDUCT

A. Plaintiffs were likely to succeed on their claim that the destruction of bulky items stored in a public area violated the Fourth Amendment’s protection against unreasonable seizures.

Garcia v. City of L.A., 2021 U.S. App. LEXIS 26508 (9th Cir. Sep. 2, 2021)

Facts: Section 56.11 of the City of Los Angeles municipal code (the “ordinance”) strictly limits the storage of personal property in public areas. This provision is part of the City’s response to the homelessness crisis. Under subsection (3)(i) of the ordinance (the “Bulky Items Provision”), the City, without notice, may remove and may discard any “Bulky Items” (generally any item too large to fit into a 60-gallon container) stored in a public area, unless the Bulky Item is designed to be used as a shelter. Homeless persons who had their personal property destroyed by the City filed an action contending, among other things, that the Bulky Items Provision, on its face, violated the Fourth Amendment’s protection against unreasonable seizures. Three Plaintiffs who had been specifically injured by the destruction of Bulky Items moved to preliminarily enjoin the City from enforcing the Bulky Items Provision.

The District Court granted the preliminary injunction, holding that Plaintiffs were likely to succeed on their Fourth Amendment claim. The District Court reasoned that the Bulky Items Provision was likely unconstitutional under Ninth Circuit Court of Appeals precedents holding that a warrant or a recognized exception to the warrant requirement must accompany a seizure for it to be reasonable. The City appealed.

Held: The Ninth Circuit Court of Appeals agreed with the District Court that Plaintiffs were likely to succeed on their claim that the Bulky Items Provision violated the Fourth Amendment’s protection against unreasonable seizures. The Court of Appeals explained that the Fourth Amendment protects individuals from unreasonable government seizures of their property, even when that property is stored in public areas. Recchia v. City of L.A. Dep’t of Animal Servs., 889 F.3d 553, 558 (9th Cir. 2018). The destruction of property has long been recognized as a seizure. United States v. Jacobsen, 466 U.S. 109, 124-25 (1984).

In Lavan v. City of Los Angeles, 693 F.3d 1022 (9th Cir. 2012), the Ninth Circuit had upheld a preliminary injunction that prohibited Los Angeles from summarily destroying homeless individuals’ publicly stored personal property. In the case here, the Court saw no meaningful distinction between the destruction of property enjoined in Lavan and the destruction of property enjoined here. The fact that Plaintiffs’ items were larger than sixty gallons did not reduce their possessory interests in those items. The Court noted that the property that the City impermissibly destroyed in Lavan included large objects like the Bulky Items at issue here, such as carts. The Ninth Circuit concluded that Plaintiffs had therefore demonstrated a likelihood of success on the merits of their claim that the Bulky Items Provision violated the Fourth Amendment on its face. Finding in favor of Plaintiffs on other matters, the Court accordingly affirmed.

B. Viewing attachments forwarded by Google’s automated child pornography detection system was an unlawful search that exceeded the private search exception.

United States v. Wilson, 2021 U.S. App. LEXIS 28569 (9th Cir. Sep. 21, 2021)

Facts: In June 2015, Google, using its propriety technology, became aware that defendant Luke Wilson had attached to emails in his email account—which may or may not have been sent—four files that included apparent child pornography. In compliance with its reporting obligations, Google automatically generated and sent an electronic report which included Wilson’s four email attachments to the National Center for Missing and Exploited Children (“NCMEC”). No one at Google had opened or viewed the defendant’s email attachments; its report was based on an automated assessment that the images the defendant uploaded were the same as images other Google employees had earlier viewed and classified as child pornography. Someone at NCMEC then, also without opening or viewing them, sent the defendant’s email attachments to the San Diego Internet Crimes Against Children Task Force (“ICAC”), where San Diego ICAC Agent Thompson ultimately viewed the email attachments without a warrant. Agent Thompson then applied for warrants to search both the defendant’s email account and his home, detailing descriptions of each of these attachment’s images in the application. However, Agent Thompson did not provide any detail about how Google had automatically identified Wilson’s images as apparent child pornography. After obtaining a search warrant for Wilson’s email account, the agent discovered many email exchanges involving images and video of alleged child pornography and in which Wilson offered to pay for the creation of child pornography. After obtaining and executing a search warrant for Wilson’s residence, thousands of child pornography images – including the four images reported by Google – were found on a thumb drive.

Wilson moved to suppress all evidence seized from his email account and residence, arguing that Agent Thompson’s viewing of his email attachments without a warrant was an unlawful search under the Fourth Amendment. The District Court denied the motion. Wilson was convicted of possession and distribution of child pornography.

Held: The Ninth Circuit Court of Appeals explained that the private search exception to the Fourth Amendment’s warrant requirement concerns circumstances in which a private party’s intrusions would have constituted a search had the government conducted it and the material discovered by the private party then comes into the government’s possession. Invoking the precept that when private parties provide evidence to the government on their own accord, it is not incumbent on the police to avert their eyes, the Supreme Court formalized the private search doctrine in Walter v. United States, 447 U.S. 649 (1980), and United States v. Jacobsen, 466 U.S. 109 (1984).

The Ninth Circuit held that the government did not meet its burden to prove that the officer’s warrantless search was justified by the private search doctrine. The Court declared that both as to the information the government obtained and the additional privacy interests implicated, the government’s actions here exceeded the limits of the private search exception as delineated in Walter and Jacobsen and their progeny. First, the government search exceeded the scope of the antecedent private search because it allowed the government to learn new, critical information that it used first to obtain a warrant and then to prosecute the defendant. Second, the government search also expanded the scope of the antecedent private search because the government agent viewed Wilson’s email attachments even though no Google employee—or other person—had done so, thereby exceeding any earlier privacy intrusion. Moreover, on the limited evidentiary record, the government had not established that what a Google employee previously viewed were exact duplicates of Wilson’s images. And, even if they were duplicates, such viewing of others’ digital communications would not have violated Wilson’s expectation of privacy in his images, as Fourth Amendment rights are personal.

The Ninth Circuit Court of Appeals thus concluded that Agent Thompson violated Wilson’s Fourth Amendment right to be free from unreasonable searches when he examined Wilson’s email attachments without a warrant. The Circuit Court vacated Wilson’s conviction, reversed the District Court’s denial of the motion to suppress, and remanded for further proceedings.

C. Because plaintiff necessarily admitted to the lawfulness of an officer’s actions in his guilty plea, his excessive force claim was barred.

Sanders v. City of Pittsburg, 2021 U.S. App. LEXIS 28822 (9th Cir. Sep. 23, 2021)

Facts: In 2017, Morgan Sanders was spotted in a stolen car, and led police on a 25-mile speeding car chase until police blocked the car, Sanders fled on foot. Sanders was eventually tackled by several officers in a gully. In the ensuing scuffle, while Sanders continued to struggle, Pittsburg Police Officer Thomas Bryan ordered the K-9 to bite Sanders’s right calf. After the bite, the officers successfully handcuffed and arrested Sanders. Sanders was charged with, among other counts, misdemeanor resisting arrest under Penal Code section 148(a)(1). Sanders pleaded no contest to all the charges against him, including misdemeanor resisting arrest under Penal Code section 148(a)(1). At the plea hearing, Sanders stipulated that the factual basis for his plea was “based on the preliminary hearing transcript,” which included Officer Bryan’s testimony about Sanders’s hinderance of officers trying to arrest him by fleeing, resisting officers attempting to arrest him, and the application of the contact bite by the K-9.

While Sanders’s criminal case was pending, he filed an action alleging a violation of his Fourth Amendment rights under 42 U.S.C. section 1983, alleging the officer’s use of the police dog was excessive. Sanders also sued the other officers at the scene and the City of Pittsburg. The City and officers jointly moved to dismiss Sanders’s complaint. The District Court granted the motion, holding that Heck v. Humphrey, 512 U.S. 477 (1994), barred Sanders’s claim against Officer Bryan and that the claims against the other officers and the City failed as a result. Sanders appealed.

Held: The Ninth Circuit Court of Appeals explained that under Heck v. Humphrey, a Section 1983 claim must be dismissed if “a judgment in favor of the plaintiff would necessarily imply the invalidity of his conviction or sentence,” unless the conviction or sentence has already been invalidated. Heck, 512 U.S. at 487. To avoid the Heck bar on an excessive-force claim, a plaintiff must not imply an officer acted unlawfully during the events that form the basis of a resisting-arrest conviction under Penal Code section 148(a). Smith v. City of Hemet, 394 F.3d 689, 695 (9th Cir. 2005). Heck thus bars a plaintiff’s action if it would negate an element of the offense, Smith, 394 F.3d at 695, or allege facts inconsistent with the plaintiff’s conviction, Beets v. Cnty. of Los Angeles, 669 F.3d 1038, 1046 (9th Cir. 2012).

The Court of Appeals observed that Sanders was charged with resisting arrest under Section 148(a)(1), which prohibits “resist[ing], delay[ing], or obstruct[ing]” a police officer during the discharge of his duties. Under California law, a conviction under this statute requires that the defendant’s obstructive acts occur while the officer is engaging in “the lawful exercise of his duties.” Smith, 394 F.3d at 695. The Court explained that because the use of excessive force by an officer is not within the performance of the officer’s duty,^[1] the “lawfulness of the officer’s conduct” is necessarily established as a result of a conviction under Section 148(a)(1). Hooper v. Cnty. of San Diego, 629 F.3d 1127, 1130 (9th Cir. 2011).

The Court found that the factual basis for Sanders’s plea was based on multiple acts of resisting arrest, including his struggle with officers when the K-9 bit him. The Ninth Circuit Court of Appeals held that Sanders could not stipulate to the lawfulness of the dog bite as part of his Section 148(a)(1) guilty plea and then use the same act to allege an excessive force claim under Section 1983. Success on such a claim would “necessarily imply” that his conviction was invalid. Heck, 512 U.S. at 487. The Court stated that there was no way to carve out the dog bite from the Section 148(a)(1) conviction without “necessarily imply[ing]” that the conviction was invalid.^[2] The Ninth Circuit Court of Appeals concluded that Sanders’s claim against Officer Bryan was, therefore, barred under Heck, and accordingly affirmed the dismissal of Sanders’s claims.

For a more detailed discussion of this case, please see Client Alert Vol. 36, No. 18, available at www.jones-mayer.com.

D. Statements made post Miranda warning are excludable when facts support conclusion that questioning was one interrogation with a Miranda warning sandwiched in between.

People v. Sumagang, 69 Cal. App. 5th 712 (6th Dist. 2021)

Facts: In November 2014, police responding to a hang-up 911 call from a remote rural area in Monterey County found Byron Silim Sumagang asleep in the back of a car in a remote rural area. Carole Sangco’s deceased body was lying on top of him. The police took Sumagang into custody. About two days later, Monterey County Sheriff’s office Detective Terry Rahiri subsequently interviewed Sumagang in two stages—first without warning him under Miranda,[3] and then again after warning him. In both parts of the interview, Sumagang confessed that he killed his girlfriend Sangco as part of a botched double-suicide attempt. The prewarning part of the interview lasted 25 minutes, followed by a two-minute break. Upon returning from the break, Detective Rahiri administered Miranda warnings and continued the interview for another 45 minutes. After warning Sumagang, Detective Rahiri questioned him in a narrative fashion about the events leading up to Sangco’s death. Detective Rahiri asked about many of the same topics they had covered in the prewarning part of the interview. Detective Rahiri again asked Sumagang to explain how he killed Sangco, what she said when he did so, and how her body reacted as she appeared to go lifeless. Regarding the prewarning interview, Detective Rahiri later testified that he “chose not to” warn Sumagang under Miranda because Detective Rahiri “wanted to see what he had to say first.”

The prosecution charged Sumagang with first-degree murder. Sumagang moved pretrial to exclude all statements he made during the entirety of the interview under Miranda and on the ground the statements were involuntary. After a hearing on the motion, the trial court found the confession was not coerced or involuntary. The trial court ruled that the prewarning part of the interview was inadmissible except for impeachment purposes, and the postwarning part was ruled admissible in the prosecution’s case in chief. The postwarning portion of the interrogation was recorded on video, which the prosecution showed to the jury. The jury found Sumagang guilty of first-degree murder. The trial court imposed a term of 25 years to life in state prison.

Held: On appeal, Sumagang argued that the trial court erred by denying his motion to exclude the postwarning part of the interview under Missouri v. Seibert (2004) 542 U.S. 600, 608. The Attorney General contended that the trial court properly admitted it because the interview was voluntary and the detective did not intentionally undermine the Miranda warnings. The Sixth District Court of Appeal observed that Seibert held that postwarning statements are inadmissible under certain circumstances, but the Supreme Court was divided with respect to what circumstances are required or what the test should be. Here, the Attorney General contended that Justice Kennedy’s concurring opinion in Seibert represented the holding of the Supreme Court because it provided the narrowest grounds for supporting the judgment.[4] The Sixth District assumed, without deciding, that Justice Kennedy’s concurrence controlled the analysis.

Justice Kennedy’s test focused on the interrogator’s intent and would find the postwarning portion of the interrogation inadmissible only if “the two-step interrogation technique was used in a calculated way to undermine the Miranda warning.” (Seibert, supra, 542 U.S. at p. 622 (conc. opn. of Kennedy, J.).) The Sixth District here considered whether the record demonstrated that the two-step tactic was employed to deliberately circumvent Miranda here by Detective Rahiri.

The Court stated that regardless of any good faith mistake at the outset of the interview, at some point Detective Rahiri determined that he needed to give Miranda warnings. The issue for the Court was whether the government proved by a preponderance of the evidence that, after coming to that realization, the detective “did not deliberately withhold the requisite warnings as part of a calculated strategy to foil Miranda.” United States v. Guillen, 995 F.3d 1095, 1121 (10th Cir. 2021).

The Court explained that “deliberateness may…be inferred from objective indications of subjective intent to frustrate Miranda” (Guillen, supra, 995 F.3d at p. 1121), and found that the evidence supported an inference of deliberateness. Like the officer in Seibert, Detective Rahiri “relied on the defendant’s prewarning statement to obtain the postwarning statement” in a fashion that “resembled a cross-examination.” (Seibert, supra, 542 U.S. at p. 621 (conc. opn. of Kennedy, J.).) In the postwarning part of the interview, for example, Detective Rahiri asked leading questions that incorporated incriminating statements Sumagang had only made prewarning. The Court also found that the fact that no curative steps were taken also weighed in favor of exclusion, explaining that there was no substantial break in time or circumstances between the two parts of the interrogation, nor any other circumstance that would have “allow[ed] the accused to distinguish the two contexts and appreciate that the interrogation ha[d] taken a new turn.” (Id.) The Court added that the use of a two-step interrogation here, whether deliberate or otherwise, did not serve any legitimate purpose. Viewing these and other factors[5] together with Detective Rahiri’s testimony, and considering the overall setting and context of the interrogation, the Court concluded that the detective deliberately undermined Miranda by employing the two-step interrogation tactic. After also finding that the trial court erred in denying Sumagang’s motion to exclude, the Court of Appeal determined the error was prejudicial. The Sixth District accordingly reversed the judgment.

E. Court finds genuine dispute of material fact as to whether law enforcement officers violated plaintiff’s constitutional rights before any exigent circumstances existed.

Murchison v. Cnty. of Tehama, 2021 Cal. App. LEXIS 817 (3rd Dist. Sep. 30, 2021)

Facts: A real estate agent and his client encountered plaintiff Michael Vern Murchison at or near Murchison’s rural property. The agent called the Tehama County Sheriff’s Department (“Department”) regarding the encounter, apparently reporting that the client thought that Murchison might have had a handgun in his pocket. Sergeant Richard Knox and Sheriff’s Deputy Jeff Garrett discovered that Murchison was a convicted felon, which they believed precluded him from owning, possessing, or controlling firearms. They drove in an unmarked vehicle to Murchison’s property. They dressed in plain clothes in order to conceal their identity as law enforcement officers, intending to provoke Murchison into brandishing a firearm. Knox and Garrett did not obtain a warrant to search Murchison’s property. After an initial encounter with Murchison, the officers decided to leave. However, while in their unmarked SUV, they observed a bolt-action rifle on top of a bench at a distance away from Murchison on the north side of Murchison’s shop adjacent to his house. The rifle was unloaded, and its bolt was back, meaning it was not in a position to be fired. Knox and Garrett got out of the SUV, and Knox began walking very quickly in the direction of the rifle. Knox did not identify himself as law enforcement as he moved toward the rifle. Murchison believed he was being robbed, and began running toward the rifle. The officers began to run toward the rifle. Observing ammunition near the rifle, they believed Murchison could load the rifle and fire at them. Murchison was tackled to the ground from behind and handcuffed. After the officers confirmed Murchison’s assertion that his conviction had been expunged, the officers removed the handcuffs and left.

Murchison brought multiple claims against the officers and the County, including federal law claims under 42 U.S.C. section 1983 of unlawful search and excessive force. The trial court granted defendants’ summary judgment motion in its entirety, concluding that the emergency or exigent circumstances doctrine excused the officers’ entry onto the property when they saw the rifle. Murchison appealed.

Held: The Third District Court of Appeal explained that searches and seizures inside of a home, or within the curtilage,[6] without a warrant are presumptively unreasonable.[7] One exception to the warrant requirement is the existence of exigent circumstances, which justify a warrantless entry, search, or seizure when “‘the exigencies of the situation’ make the needs of law enforcement so compelling that [a] warrantless search is objectively reasonable under the Fourth Amendment.”[8] However, officers cannot rely on the exigent circumstances exception to the warrant requirement where they “create the exigency by engaging or threatening to engage in conduct that violates the Fourth Amendment.”[9]

The Court concluded that conclude there was a genuine dispute of material fact as to whether the officers violated Murchison’s constitutional rights before any exigent circumstances existed. In his deposition, Murchison asserted that Knox was past the SUV and was “probably halfway around [his] shop” before Murchison started to run toward the rifle. The Court found that a reasonable jury crediting this testimony could find that Knox had violated the Fourth Amendment by entering Murchison’s curtilage, in which Murchison had a reasonable expectation of privacy, before Murchison began running toward the rifle. The Court concluded that a reasonable jury could find that his injuries were proximately caused by the officers’ warrantless entry. The Court also concluded that the officers were not entitled to qualified immunity as to Murchison’s excessive force claim because there was no particularized legal authority demonstrating that the officers were not permitted to apprehend Murchison in the manner that occurred here. Accordingly, the Third District Court reversed with instructions.

QUALIFIED IMMUNITY

A police chief was not entitled to qualified immunity when an officer asserted that she had been retaliated against for filing sex-discrimination lawsuits.

Ballou v. McElvain, 2021 U.S. App. LEXIS 29267 (9th Cir. Sep. 28, 2021)

Facts: In 2017, Julie Ballou, a police officer with the Vancouver Police Department in Washington, scored third highest on an exam to determine eligibility for promotion to the rank of sergeant. Police Chief James McElvain made promotion decisions, and every time he filled a vacancy, Chief McElvain promoted the highest-ranked person on the relevant list. A supervising sergeant learned that Ballou had failed to write and file a burglary report and initiated an internal affairs investigation into Ballou’s conduct thereafter. Ballou was repeatedly passed over, including when she was highest on the promotion list. Chief McElvain refused to promote her while the investigations were pending. Between February 2018, when she first became eligible for promotion to sergeant, and May 2019, Ballou was the subject of eight internal affairs investigations.

In September 2018, Ballou served a state tort claim on the City of Vancouver, alleging sex discrimination and seeking damages. After another candidate ranked below Ballou was promoted to sergeant, Ballou filed a second state tort claim, alleging further sexual discrimination and “claims for retaliation.” In January 2019, Ballou filed suit under 42 U.S.C. section 1983 in federal court alleging denial of her constitutional equal protection rights. The following week, Chief McElvain announced that he intended to promote Brian Ruder, now the second-ranked candidate, over Ballou. Ruder had previously received a verbal reprimand for failing to write a report on a sexual assault call, but had not, at that time, been subjected to an internal affairs investigation for such conduct. In her amended federal complaint (amended after Ruder’s promotion), Ballou alleged that Chief McElvain violated the First Amendment and the Equal Protection Clause of the Fourteenth Amendment by discriminating against her on the basis of sex in refusing to promote her and by retaliating against her for objecting to that discrimination.

The District Court denied, in its entirety, Chief McElvain’s motion for partial judgment on the pleadings, in which he asserted qualified immunity as to Ballou’s retaliation claim. The District Court denied Chief McElvain and the City’s subsequent motion for summary judgment on Ballou’s First Amendment claim, and denied Chief McElvain qualified immunity on the ground that the First Amendment prohibited retaliation. Chief McElvain appealed.

Held: The Ninth Circuit Court of Appeals explained that it must affirm the District Court’s denial of qualified immunity if, resolving all factual disputes and drawing all inferences in Ballou’s favor, Chief McElvain’s conduct (1) violated a constitutional right that (2) was clearly established at the time of the violation. See Estate of Anderson, 985 F.3d at 731; see also Ashcroft v. al-Kidd, 563 U.S. 731, 735 (2011). The Ninth Circuit considered the denial of qualified immunity to Chief McElvain on Ballou’s First Amendment retaliation claim. The Court explained that the First Amendment protects a public employee’s right to speak out against or petition the government—including via a lawsuit—on “matters of public concern.”[10]

Ballou contended that Chief McElvain violated her rights under the Petition Clause of the First Amendment by maintaining repeated internal affairs investigations into her work practices and promoting Ruder over her, in retaliation for her opposition to sex discrimination in the workplace. The Ninth Circuit determined that circuit case law “squarely foreclose[d]” Chief McElvain’s countering contention that Ballou’s complaints and lawsuit pertained only to matters of private concern. Rendish v. City of Tacoma, 123 F.3d 1216 (9th Cir. 1997), held that unlawful discrimination is a subject that affects a public employee’s personal interests yet also implicates matters of public concern, recognizing that “the public has an interest in unlawful discrimination” in City government, and that employee speech about such discrimination therefore involves matters of public concern even if it arises out of a personal dispute. Id. at 1224. Moreover, Alpha Energy Savers, Inc. v. Hansen[11] held that “when government employees speak about . . . wrongdoing [or] misconduct . . . by other government employees, . . . their speech is inherently a matter of public concern.”[12] Alpha Energy clarified that “[d]isputes over racial, religious, or other such discrimination by public officials…involve the type of governmental conduct that affects the societal interest as a whole—conduct in which the public has a deep and abiding interest. Litigation seeking to expose such wrongful governmental activity is, by its very nature, a matter of public concern.”[13] The Ninth Circuit held that these precedents clearly established that speech by public employees about unlawful discrimination in the workplace is inherently speech on a matter of public concern.[14] Accordingly, the Court affirmed the denial of qualified immunity to Chief McElvain on Ballou’s First Amendment retaliation claim.

For a more detailed discussion of this case, please see Client Alert Vol. 36, No. 20, available at www.jones-mayer.com.

MISCELLANEOUS

A. Dual convictions of Vehicle Code sections 23152(a) and 23152(b) prohibiting driving under the influence are “both possible and proper” under controlling precedent.

People v. Grabham, 68 Cal. App. 5th 549 (1st Dist. 2021)

Facts: In September 2019, California Highway Patrol Officers Herve and Bethay initiated a traffic stop of defendant James William Grabham, Jr.’s pickup truck because they noticed defendant looking down at his cell phone while driving and confirmed that his vehicle registration was expired. As Officer Herve approached defendant’s truck, he saw a 12-pack of beer on the bench seat. Officer Herve smelled alcohol coming from the truck, and noticed defendant’s red and watery eyes, slurred speech, and poor ability to follow directions. Officer Herve decided to conduct a full driving under the influence (“DUI”) investigation. Defendant’s performance in several field sobriety tests indicated he was under the influence of alcohol. Officer Herve then arrested defendant and administered a breath test. The first test reported a blood-alcohol content (“BAC”) of 0.12, and the second test reported a BAC of 0.11.

A jury found defendant guilty of driving under the influence of an alcoholic beverage (Vehicle Code section 23152(a)) and driving with a 0.08 BAC (Vehicle Code section 23152(b)). After defendant waived his right to a jury trial on his prior conviction, the trial court found enhancement allegations to be true. The trial court sentenced defendant to three years in state prison but suspended execution of the sentence. Defendant was instead placed on three years of probation on the condition that he participate in a residential treatment program.

Held: On appeal, defendant contended that Sections 23152(a) and (b) are different statements of the same offense and Penal Code section 954 therefore requires vacatur of one of his convictions. Penal Code section 954 prohibits multiple convictions for a different statement of the same offense when it is based on the same act or course of conduct.

The First District Court of Appeal disagreed, finding that defendant’s arguments were foreclosed by the holdings in People v. Subramani (1st Dist. 1985) 173 Cal.App.3d 1106 and People v. Duarte (5th Dist. 1984) 161 Cal.App.3d 438. Subramani and Duarte addressed subdivisions (a) and (b) of Section 23153, a nearly identical statute providing the felony counterpart to Section 23152, and both courts held that Section 23153, subdivisions (a) and (b) describe separate offenses.

The Court observed that whether two statutes or statutory provisions describe the same offense “turns on the Legislature’s intent in enacting [the] provisions, and if the Legislature meant to define only one offense, we may not turn it into two.” (People v. Gonzalez (2014) 60 Cal.4th 533, 537.) Here, the First District explained that the statutory structure and related portions of the Vehicle Code demonstrated a clear legislative intent to treat subdivisions (a) and (b) of Vehicle Code section 23152 as separate offenses. Section 23152(a) makes it a crime to drive under the influence of alcohol—that is, to drive while impaired. Section 23152(b), on the other hand, makes it a crime to drive with a BAC of more than 0.08. A crime under section 23152(b) can be committed without violating section 23152(a). Thus, the statutory text and statutory framework as a whole demonstrated the Legislature’s intent to create two separate offenses with subdivisions (a) and (b) of section 23152. Moreover, subdivision (b)’s legislative history demonstrated the legislative intent to “create a new crime,” in addition to and independent of the crime of driving under the influence set forth in section 23152(a). (People v. McNeal (2009) 46 Cal.4th 1183, 1193.) As they were separate offenses, dual convictions under subdivisions (a) and (b) of Section 23152, were therefore “both possible and proper.” (Duarte, at p. 446; see Subramani, at p. 1111.) The First District Court of Appeal accordingly affirmed.

B. City ordinance criminalizing acts related to public drunkenness preempted because it conflicts with Penal Code section 647(f).

Carcamo v. L.A. Cnty. Sheriff’s Dep’t., 68 Cal. App. 5th 608 (2nd Dist. 2021)

Facts: California long ago “adopted a general scheme for the regulation of the criminal aspects of being intoxicated in a public place.” (In re Koehne (1963) 59 Cal.2d 646, 648 (italics removed).) That general scheme is encompassed in Penal Code section 647(f). The California Supreme Court stated in Koehne that “[w]henever the Legislature has seen fit to adopt a general scheme for the regulation of a particular subject, the entire control over whatever phases of the subject are covered by state legislation ceases as far as local legislation is concerned.” On this principle, the Koehne Court invalidated a city ordinance that prohibited being or appearing “‘in a state of drunkenness or intoxication’” “‘in any public place.’” (Koehne, at pp. 648, 647 (italics removed).)

However, the City of Carson had, at the time of the events in this case, a “public intoxication” ordinance that purported to criminalize conduct that was not unlawful under the Penal Code. In February 2014, Los Angeles County Sheriff’s Department deputies arrested plaintiffs LaShun Carcamo, Anthony January, and Kirby Hales for public intoxication under that ordinance, Carson Municipal Code section 4201. The arrestees spent a night and the better part of the next day in jail. They were never charged. Plaintiffs sued the Department and arresting Deputy Larry Billoups for wrongful arrest.

The trial court declined to address the preemption issue, instructing the jury that, if deputies saw plaintiffs drunk in public, the deputies had reasonable cause to arrest them under the City of Carson’s ordinance. The jury found in defendants’ favor. Plaintiffs appealed.

Held: The Second District Court of Appeal noted that Section 4201, Carson’s ordinance states: “It shall be unlawful for any intoxicated person, or any person in an intoxicated condition, willfully to appear, remain or be in or on any public highway, street, alley, way, park, playground or public place in the incorporated territory of the City of Carson, whether such person is or is not in or upon any automobile, street or interurban car, vehicle or conveyance.” Penal Code section 647(f) states that anyone “found in any public place under the influence of intoxicating liquor … in a condition that they are unable to exercise care for their own safety or the safety of others, or by reason of being under the influence of intoxicating liquor … interferes with or obstructs or prevents the free use of any street, sidewalk, or other public way” is guilty of disorderly conduct. Plaintiffs contended that the City’s ordinance is preempted, and Deputy Billoups did not have reasonable cause to arrest them under Section 647(f) because nothing in the record demonstrated plaintiffs were “unable to exercise care for their own safety or the safety of others,” or that they “interfere[d] with or obstruct[ed] or prevent[ed] the free use of any street, sidewalk, or other public way” as the state statute—but not Section 4201—requires.

The Court held Section 4201 was a void law. The Second District cited Koehne and two other 1963 cases in which the California Supreme Court held that any and all city ordinances criminalizing acts related to public drunkenness are preempted because they conflict with Section 647(f), which preempted the field. Koehne, supra, 59 Cal.2d at p. 649; In re Zorn (1963) 59 Cal.2d 650, 651–652; People v. Lopez (1963) 59 Cal.2d 653–654. The Court added that even if Deputy Billoups believed the City’s Section 4201 still was valid, his good faith belief was irrelevant because the arrests were illegal – the Department could not meet its burden to show its deputies had probable cause to arrest plaintiffs by relying on a void statute. The Second District found that the trial court gave the jury erroneous instruction that was plainly prejudicial, and concluded that the judgment rendered on the jury’s findings must be reversed.

[1] Smith, 394 F.3d at 695.

[2] Heck, 512 U.S. at 487.

[3] Miranda v. Arizona, 384 U.S. 436 (1966).

[4] See Marks v. United States, 430 U.S. 188, 193 (1977) [when a fragmented court decides a case and no single rationale is supported by five or more justices, the holding of the court may be viewed as that position taken by the members who concurred in the judgment on the narrowest grounds].

[5] These other factors were set forth in the Seibert plurality opinion: the completeness and detail of the questions and answers in the prewarning interview, the overlapping content of the two statements, the timing and setting of the first and the second parts, the continuity of police personnel, and the degree to which the interrogator’s questions treated the second round as continuous with the first. The Sixth District concluded that the two-stage interrogation violated not only the standards set forth in Justice Kennedy’s concurrence in Seibert, but also those expressed in the Seibert plurality’s opinion.

[6] “Land or structures immediately adjacent to and intimately associated with one’s home, referred to as ‘curtilage,’ are ordinarily considered part of the home itself for Fourth Amendment purposes.” (People v. Williams, 15 Cal.App.5th 111, 120 (2nd Dist. 2017).)

[7] United States v. Martinez, 406 F.3d 1160, 1163 (9th Cir. 2005); United States v. Duenas, 691 F.3d 1070, 1080-1081 (9th Cir. 2012) [curtilage warrants same Fourth Amendment protection as the home].

[8] Mincey v. Arizona, 437 U.S. 385, 394 (1978).

[9] Kentucky v. King, 563 U.S. 452, 462 (2011).

[10] Pickering v. Bd. of Educ., 391 U.S. 563, 574 (1968).

[11] 381 F.3d 917 (9th Cir. 2004).

[12] Id. at 926 (quoting Ceballos v. Garcetti, 361 F.3d 1168, 1174 (9th Cir. 2004), rev’d., 547 U.S. 410 (2006)).

[13] Id. at 926-27.

[14] Moreover, even if precedent had not clearly been established, the Court found that there was sufficient evidence in the record – such as other officers’ meeting with McElvain to discuss perceived discriminatory practices in their workplace including the Vancouver Police Department’s treatment of Ballou, and Ballou’s lawsuit was the subject of at least one news story in the local press – to conclude that the specific expression at issue here was on a matter of more than private concern.