Courtesy of James R. Touchstone, Esq.

QUALIFIED IMMUNITY

Detectives were entitled to qualified immunity because it was not clearly established that their interrogation tactics ‘shocked the conscience’ when used over a relatively short period of time.

Tobias v. Arteaga, 2021 U.S. App. LEXIS 12447 (9th Cir. Apr. 27, 2021)

Facts: Thirteen-year-old Art Tobias confessed to the murder of Alex Castaneda—a murder he did not commit—after an interrogation in which Los Angeles Police Department (“LAPD”) Detectives Michael Arteaga, Julian Pere, and Jeff Cortina ignored his request for an attorney, told him that he would look like a “cold-blooded killer” if he did not confess, and suggested that if he were to exercise his right to remain silent, he would receive harsher treatment by the court.

Before his murder trial in juvenile court, Tobias moved to suppress his confession. He argued that the detectives violated his rights under Miranda v. Arizona[1] by ignoring his request for an attorney, and that their conduct during the interrogation was unconstitutionally coercive. The juvenile court denied the motion. After the trial, a jury convicted Tobias of one count of first-degree murder and two counts of attempted murder. He was sentenced to 25 years in prison. The California Court of Appeal reversed the conviction, concluding that Tobias’s confession should have been suppressed by the juvenile court because the detectives failed to respect his unambiguous request for an attorney. On remand, the charges were dismissed, and all parties – including the arresting officers – eventually agreed that Tobias was not involved in the Castaneda murder.

Tobias filed suit under 42 U.S.C. section 1983 in federal District Court against the LAPD detectives. The operative second amended complaint asserted claims based on several theories of constitutional violations, including violation of the Fifth Amendment right against self-incrimination based on a coerced confession and violation of Fourteenth Amendment substantive due process based on the detectives’ conduct during the interrogation. The detectives filed a motion for summary judgment, arguing in part that they were entitled to qualified immunity. After the District Court denied the motion, the LAPD Detectives appealed.

Held: The Ninth Circuit Court of Appeals explained that “officers are entitled to qualified immunity under Section 1983 unless (1) they violated a federal . . . constitutional right, and (2) the unlawfulness of their conduct was clearly established at the time.” District of Columbia v. Wesby, 138 S. Ct. 577, 589 (2018) (internal quotation marks omitted).

The Ninth Circuit first affirmed the District Court’s denial of qualified immunity on Tobias’s Fifth Amendment claims that the detectives continued to question him after he invoked his Miranda right to silence and that they engaged in unconstitutional coercive questioning tactics. The Court of Appeals held that it was clearly established at the time of Tobias’s interrogation that the statement “Could I have an attorney? Because that’s not me,” was an unequivocal invocation of his right to counsel.[2] Moreover, because any suggestion by a law enforcement officer “that a suspect’s exercise of the right to remain silent may result in harsher treatment by a court or prosecutor” is unconstitutionally coercive,[3] the Court concluded that under this clearly established law, a detective violated Tobias’s Fifth Amendment rights with repeated assertions that the court would consider Tobias a “cold blooded killer” and “might throw the book at [him]” if he did not confess.

Turning to Tobias’s Fourteenth Amendment substantive due process claim, the Ninth Circuit observed that a person subjected to coercive interrogation techniques can bring a substantive due process claim under the Fourteenth Amendment.[4] The substantive due process standard requires showing that an officer engaged in an “abuse of power [that] ‘shocks the conscience’ and ‘violates the decencies of civilized conduct.’“ Stoot v. City of Everett, 582 F.3d 910, 928 (9th Cir. 2009) (quoting Cnty. of Sacramento v. Lewis, 523 U.S. 833, 846 (1998)). The Supreme Court has described “police torture or other abuse” as the type of claim cognizable under the Fourteenth Amendment (Chavez v. Martinez, 538 U.S. 760, 773-774 (2003)), which can include psychological coercion. See Stoot, 582 F.3d at 929. The Court noted that it was well-established that “the constitutionality of interrogation techniques is judged by a higher standard when police interrogate a minor.” Crowe v. Cnty. of San Diego, 608 F.3d 406, 431 (9th Cir. 2010).

The Ninth Circuit noted that unlike other similar cases like Crowe in which the Circuit Court had recognized substantive due process violations stemming from officer interrogations, Tobias’s mistreatment here was much shorter, lasting under two hours. Because the prior cases in which the Circuit Court found “psychological torture” involved hours of questioning, and because the detectives’ behavior towards Tobias was otherwise similar to—but not obviously worse than—the behavior in those cases, the Court here held that it was not clearly established that the offending tactics “shocked the conscience” when used over a shorter period of time. The Ninth Circuit Court of Appeals accordingly reversed the denial of qualified immunity on Tobias’s Fourteenth Amendment substantive due process claim.

EMPLOYMENT

Trial court erred in granting defendants’ anti-SLAPP motion because County filed confidential personnel records without first complying with mandatory procedures for disclosure, which is illegal under Government Code section 1222.

Towner v. Cnty. of Ventura, 63 Cal. App. 5th 761 (2nd Dist. 2021)

Facts: Tracy Towner worked for the Ventura County Office of the District Attorney (“VCDA”) as an investigator, and became an investigative commander in June 2014. He testified under subpoena at a fellow peace officer’s administrative hearing before the Civil Service Commission of Ventura County (“Commission”). Although the Commission issued a finding after the hearing that Towner “credibly testified” and that his “testimony was truthful,” VCDA opened an independent investigation that concluded that Towner had testified falsely at the hearing. In April 2018, VCDA terminated Towner.

After Towner appealed the termination decision to the Commission, the County of Ventura (“County”) filed a petition for writ of mandate in August 2018 requesting the superior court enjoin the Commission from hearing Towner’s appeal due to an alleged conflict of interest. The County attached as exhibits to its petition excerpts from an investigative report on Towner’s conduct and notices of discipline from VCDA to Towner relating to VCDA’s termination decision. The notices of disciplinary action stated at the top of the first page, “CONFIDENTIAL PERSONNEL DOCUMENT,” and at the top of each subsequent page, “CONFIDENTIAL.” The superior court denied the County’s request for ex parte relief, and after a hearing, the Commission reversed the County’s termination of Towner and ordered him reinstated with full back pay and benefits.

In November 2019, Towner filed a first amended complaint (“FAC”) against the County, VCDA, District Attorney Gregory D. Totten, Chief Assistant District Attorney Michael Schwartz, and outside counsel Edward Zappia (collectively, the “County defendants”). He alleged several causes of action, including for violation of the Public Safety Officers Procedural Bill of Rights Act (Government Code section 3300 et seq.; “POBRA”) and negligence per se based on violation of Penal Code section 832.7.

The County defendants filed a special motion to strike the POBRA and negligence per se causes of action of the FAC under Code of Civil Procedure section 425.16, the anti-SLAPP[5] statute. The County defendants argued that because the conduct alleged in these causes of action was the filing of a writ petition in the superior court, the causes of action arose from protected activity in furtherance of the County defendants’ right of petition. The trial court granted the special motion to strike. Towner appealed.

Held: The California Second District Court of Appeal stated that a cause of action arising from an act in furtherance of a defendant’s constitutional right of petition or free speech in connection with a public issue is subject to a special motion to strike unless the plaintiff demonstrates a probability of prevailing on the claim. (Code of Civil Procedure section 425.16 (b)(1).) An “‘act in furtherance of a person’s right of petition or free speech under the United States or California Constitution in connection with a public issue’” includes, in relevant part, “any written or oral statement or writing made before a legislative, executive, or judicial proceeding, or any other official proceeding authorized by law.” (Id., section 425.16(e)(1).)

The analysis of an anti-SLAPP motion involves a two-step process. “‘“First, the court decides whether the defendant has made a threshold showing that the challenged cause of action is one ‘arising from’ protected activity. [Citation.] If the court finds such a showing has been made, it then must consider whether the plaintiff has demonstrated a probability of prevailing on the claim.”‘ (Barry v. State Bar of California (2017) 2 Cal.5th 318, 321.)

The County defendants contended that the conduct giving rise to Towner’s POBRA and Section 832.7 claims—the public disclosure of Towner’s confidential personnel records—arose from protected activity in furtherance of the right of petition because the filings constituted written statements made before a judicial proceeding authorized by law, pursuant to Code of Civil Procedure section 425.16 (e)(1). Towner contended that the County’s disclosure of his confidential personnel records was illegal as a matter of law and therefore was not protected activity under Code of Civil Procedure section 425.16.

The Second District observed that the California Supreme Court in Flatley v. Mauro (2006) 39 Cal.4th 299, 320 stated: “[W]here a defendant brings a motion to strike under [Code of Civil Procedure] section 425.16 based on a claim that the plaintiff’s action arises from activity by the defendant in furtherance of the defendant’s exercise of … petition rights, but either the defendant concedes, or the evidence conclusively establishes, that the assertedly protected speech or petition activity was illegal as a matter of law, the defendant is precluded from using the anti-SLAPP statute to strike the plaintiff’s action.”

Towner contended the County defendants violated Penal Code section 832.7 by publicly disclosing his confidential personnel records without submitting the documents to the statutorily prescribed judicial review. Section 832.7(a), in relevant part, “provides that certain ‘[p]eace officer or custodial officer’ records and ‘information obtained from these records, [] are confidential and shall not be disclosed in any criminal or civil proceeding except by discovery pursuant to Sections 1043 and 1046 of the Evidence Code.’” (Copley Press, Inc. v. Superior Court (2006) 39 Cal.4th 1272, 1283.

Noting that the County defendants did not dispute that they failed to comply with Section 832.7 and Evidence Code section 1043, the Court held that the County defendants’ failure to comply with Section 832.7 was illegal as a matter of law under Government Code section 1222, which makes a public officer’s “willful omission to perform any duty enjoined by law” a misdemeanor. The Court thus found that Towner had carried his burden to show the alleged conduct of the County defendants underlying his POBRA and negligence per se causes of action was illegal as a matter of law under Flatley because it constituted a willful omission to perform a public duty enjoined by law (Government Code section 1222). Such conduct was therefore not protected activity under the anti-SLAPP statute. Accordingly, the Second District Court of Appeal reversed the order granting the special motion to strike and remanded.

PUBLIC RECORDS

Public Safety Officers Procedural Bill of Rights section 3303(g) does not require automatic disclosure of reports and complaints prior to any further interrogation of an officer under investigation.

Oakland Police Officers’ Ass’n v. City of Oakland, 63 Cal. App. 5th 503 (1st Dist. 2021)

Facts: In December 2017, a citizen filed a complaint against officers from the Oakland Police Department (the “Department”) conducting a mental health welfare check. The citizen alleged, among other things, unlawful search and seizure and excessive use of force. After an internal investigation, the Department cleared the officers of misconduct. As part of the Department’s investigation, internal affairs took the citizen’s statement and reviewed existing body worn camera footage and relevant documents. The Department separately interrogated the officers, and cleared the officers of misconduct in June 2018.

The Oakland Community Police Review Agency (the “Agency”), a civilian oversight agency with independent authority to investigate claims of police misconduct, conducted its own investigation. The Agency notified each of the officers that they would be re-interviewed concerning the same December 2017 incident. Before the Agency’s formal interrogation of the officers, counsel for the officers sought discovery of all “reports and complaints” prepared or compiled by investigators pursuant to Section 3303, subdivision (g) of the Public Safety Officers Procedural Bill of Rights Act (Government Code section 3300 et seq., “POBRA”). Although the Agency agreed to provide recordings and transcribed notes from the Department’s prior interrogations, the Agency refused to disclose any other materials. Based on its investigation, the Agency determined that officers knowingly violated the complainant’s civil rights and recommended discipline. The Agency also found that the officers gave misleading statements to investigators, omitted material details, and worked together in an attempt to conceal their misconduct.

Oakland Police Officers’ Association and the officers filed a petition for writ of mandate alleging that the City of Oakland (the “City”) violated their procedural rights by refusing to disclose to disclose all relevant “reports and complaints” prior to subsequent interrogations by the Agency. The Fourth District Court of Appeal had previously considered the same issue in Santa Ana Police Officers’ Association v. City of Santa Ana (4th Dist. 2017) 13 Cal.App.5th 317, 328 (“City of Santa Ana”), holding that POBRA requires the disclosure of such materials after an initial interrogation and “‘prior to any further interrogation.’” Feeling constrained by City of Santa Ana, the trial court granted the petition, notwithstanding the conflict between City of Santa Ana’s holding and the California Supreme Court’s reasoning in Pasadena Police Officers’ Association v. City of Pasadena (“City of Pasadena”) (1990) 51 Cal.3d 564 that “granting discovery before interrogation could frustrate the effectiveness of any investigation, whether criminal or administrative” (Id. at p. 578) and would be “contrary to sound investigative practices” (Id. at p. 579). The trial court ordered the City to disregard the interrogation testimony in any current or future disciplinary proceedings against the officers. The City appealed. After briefing was completed, the First District Court of Appeal granted a request by the League of California Cities and the Los Angeles County Police Chiefs’ Association to file an amicus brief supporting the City’s position.

Held: The California First District Court of Appeal stated that the issue here was whether under POBRA’s Section 3303, subdivision (g), investigative reports or complaints must be disclosed to a peace officer under investigation for misconduct prior to any further interrogation of that officer. Subdivision (g) provides as follows: “The complete interrogation of a public safety officer may be recorded. If a tape recording is made of the interrogation, the public safety officer shall have access to the tape if any further proceedings are contemplated or prior to any further interrogation at a subsequent time. The public safety officer shall be entitled to a transcribed copy of any notes made by a stenographer or to any reports or complaints made by investigators or other persons, except those which are deemed by the investigating agency to be confidential. No notes or reports that are deemed to be confidential may be entered in the officer’s personnel file. The public safety officer being interrogated shall have the right to bring his or her own recording device and record any and all aspects of the interrogation.” (Italics added.)

In City of Pasadena, the Supreme Court found that “entitlement to preinterrogation discovery is neither apparent from the language of subdivision [(g)[6]] nor fundamental to the fairness of an internal affairs investigation,” and that mandating such discovery “might jeopardize public confidence in the efficiency and integrity of its police force.” (City of Pasadena, 51 Cal.3d at p. 579.) The Supreme Court thus held that “the Legislature intended subdivision [(g)] to require law enforcement agencies to disclose reports and complaints to an officer under an internal affairs investigation only after the officer’s interrogation.” (Ibid.)

Considering City of Pasadena, the First District concluded that mandatory disclosure of complaints and reports prior to any subsequent interrogation of an officer suspected of misconduct was inconsistent with the plain language of the statute; and would undermine a core purpose of POBRA of ensuring that investigations into officer misconduct are conducted “with the seriousness, diligence, and fairness that is required of these positions of public trust.” The Court concluded instead that tying the disclosure of reports and complaints to the confidential nature of these materials would protect the integrity and effectiveness of such investigations while allowing police officers prompt access to all materials to which they are entitled under Section 3303(g). Accordingly, the First District reversed the trial court’s judgment and remanded with instructions to the trial court to determine whether the City had a basis for withholding otherwise discoverable reports and complaints due to their confidential nature as discussed here.

MISCELLANEOUS

A. Penal Code section 632.7 prohibits parties as well as nonparties from intentionally recording communication transmitted between cellular or cordless phones and another device without consent of all parties to communication.

Smith v. LoanMe, Inc., 11 Cal. 5th 183 (2021)

Facts: LoanMe, Inc. extended a loan to the wife of Jeremiah Smith. In October 2015, a LoanMe employee called a phone number Smith’s wife had provided. Smith answered on a cordless phone, and informed the LoanMe representative that his wife was not at home. The call then ended, lasting approximately 18 seconds. LoanMe recorded the call. Three seconds into the call, LoanMe caused a “beep” tone to sound. The LoanMe representative did not orally advise Smith that the call was being recorded.

In September 2016, Smith filed suit on behalf of a putative class consisting of “[a]ll persons in California whose inbound and outbound telephone conversations involving their cellular or cordless telephones were recorded without their consent by [LoanMe] or its agent/s within the one year prior to the filing of this action.” The complaint alleged that the recording of these calls violated Penal Code section 632.7. Under Penal Code section 632.7(a)), it is a crime when a person “without the consent of all parties to a communication, intercepts or receives and intentionally records, or assists in the interception or reception and intentional recordation of, a communication transmitted between” a cellular or cordless telephone and another telephone. A violation of Section 632.7 also can be pursued civilly and lead to the assessment of damages and other appropriate relief.

After listening to the call, the trial court agreed with LoanMe that the “beep” tone gave Smith adequate notice that the call was being recorded; and that by continuing the conversation after the beep, Smith consented to being recorded. The trial court subsequently entered judgment in LoanMe’s favor.

Smith sought review. The California Fourth District Court of Appeal affirmed, concluding “that [S]ection 632.7 prohibits only third party eavesdroppers from intentionally recording telephonic communications involving at least one cellular or cordless telephone. Conversely, [S]ection 632.7 does not prohibit the participants in a phone call from intentionally recording it.” The Court of Appeal, however, did not investigate the consent issue decided by the lower court. In its reasoning, the Court of Appeal regarded Section 632.7 as unambiguously applicable only to nonparties because “the parties to a phone call always consent to the receipt of their communications by each other—that is what it means to be a party to the call…Consequently, the parties to a phone call are incapable of violating [S]ection 632.7, because they do not intercept or receive each other’s communications without all parties’ consent.”

Held: The Supreme Court of California granted review to consider whether Section 632.7 applies to the parties to a communication, prohibiting them from recording a covered communication without the consent of all participants, or whether the section is concerned only with recording by persons other than parties (or “nonparties” to the communication), such as an individual who covertly intercepts a phone call and eavesdrops upon it.

The Supreme Court noted that in Flanagan v. Flanagan (2002) 27 Cal.4th 766, the Court had held that “a conversation is confidential if a party to that conversation has an objectively reasonable expectation that the conversation is not being overheard or recorded.” (Id. at p.768.) In analyzing the statutory language of Section 632.7, the Court focused upon its phrasing, “[e]very person who, without the consent of all parties to a communication, intercepts or receives and intentionally records … a communication … .” The Court interpreted Section 632.7(a)’s consent language as directed at the recording component of the offense, with the Section’s “intercepts or receives” phrasing specifying the circumstances in which a person may become privy to a covered communication. Under this interpretation of Section 632.7(a), the Court declared there was no doubt regarding its applicability to parties as well as nonparties to a communication. The Court stated that “although parties might normally be regarded as consenting to the receipt of their communications by other parties to a call, this acquiescence would not, by itself, necessarily convey their consent to having these communications recorded.” The Court maintained that within Section 632.7(a), the interception or receipt of a covered communication “is not so much a discrete subject of consent as it is a description of the circumstances in which the prohibited act of recordation without proper consent may occur.”

The Supreme Court next reviewed the legislative history and public policy pertinent to the section which confirmed the Court’s statutory text interpretation. The Court asserted that its interpretation that the section applied to nonparties and parties advanced the Legislature’s apparent intent by protecting privacy in covered communications to a greater degree than the Court of Appeal’s construction. The Supreme Court thus held that Section 632.7 prohibits parties as well as nonparties from intentionally recording a communication transmitted between a cellular or cordless phone and another device without the consent of all parties to the communication. Accordingly, the Supreme Court reversed the Court of Appeal’s judgment and remanded.

B. As direct victims of defendant’s fraud, governmental agencies were entitled to restitution for investigative costs in effort to recoup money defendant fraudulently obtained.

People v. Clapp, 62 Cal. App. 5th 862 (3rd Dist.2021)

Facts: Daniel Cory Clapp was employed as an officer with the Department of the California Highway Patrol (“CHP”) when he was injured on the job. Clapp claimed injuries to his shoulder, head, and knees, and began collecting disability payments under Labor Code section 4800.5.[7] His payments came out of CHP’s budget. The worker’s compensation fraud unit of the CHP investigated Clapp after receiving a tip, conducting surveillance during Clapp’s travel, doctor’s visits, and shopping trips. The unit also conducted surveillance while Clapp was camping, which included such activities as boating, swimming, and chopping wood. After CHIP investigators showed Clapp’s doctor the surveillance videos, the doctor agreed if she had been aware of Clapp’s activities, she would have released him to work in April 2012. She also agreed Clapp’s complaints had been a “gross misrepresentation.” In October 2013, the doctor released Clapp for full duty with no restrictions.

Between April 2012 and October 2013, Clapp received over $80,000 in Labor Code section 4800.5 disability payments. And between March 2013 and October 2013, Clapp received over $30,000 in temporary disability payments from the State Compensation Insurance Fund (“SCIF”).

Clapp pled no contest to concealing the true extent of his physical activities and abilities from CHP and SCIF in violation of Penal Code section 550(b)(3). Consistent with the resolution negotiated by the parties, the trial court granted Clapp three years’ probation, and as a condition of probation, ordered him to pay restitution. Following a restitution hearing, Clapp was ordered to pay $30,095.68 to SCIF for temporary disability benefits and $81,768.01 to CHP for benefits wrongfully obtained. He was also ordered to pay $1,350 and $70,159 to SCIF and CHP respectively for investigative costs. Clapp appealed the restitution award as to investigative costs, contending that, as public investigative agencies, neither SCIF nor CHP was entitled to reimbursement for the costs of investigating his claim.

Held: The California Third District Court of Appeal explained that as a general matter, where a victim has suffered economic losses as a result of a defendant’s actions, a trial court must require the defendant to make restitution. (People v. Phu (3rd Dist. 2009) 179 Cal.App.4th 280, 283.) Penal Code section 1202.4(f) states in part: “[I]n every case in which a victim has suffered economic loss as a result of the defendant’s conduct, the court shall require that the defendant make restitution to the victim or victims in an amount established by court order.” This section requires victims to be fully reimbursed “for every determined economic loss incurred as the result of the defendant’s criminal conduct” and contains an expressly nonexclusive list of reimbursable losses, “including, but not limited to:” economic loss such as “[w]ages … lost by the victim … due to time spent as a witness or in assisting the police or prosecution.” (Section 1202.4(f)(3)(E), italics added.) Under Section 1202.4, “victim” includes: “A … government, governmental subdivision, agency, or instrumentality, or any other legal or commercial entity when that entity is a direct victim of a crime.” (Section 1202.4(k)(2), italics added.) “[A] defrauded government agency can be a victim entitled to restitution.” (People v. Torres (1st Dist. 1997) 59 Cal.App.4th 1, 3, citing People v. Crow (1993) 6 Cal.4th 952, 960.)

The Court explained that here it was undisputed that CHP and SCIF were direct victims in that both entities paid Clapp money that he fraudulently obtained from them. In People v. Maheshwari (2nd Dist. 2003) 107 Cal.App.4th 1406, the Second District held that the employer’s “economic loss included the funds embezzled as well as the fees and costs incurred to recover those funds.” (Id., at p. 1409.) The Third District explained here that as CHP and SCIF were both direct victims of Clapp’s fraud, which resulted in them paying Clapp money to which he was not entitled, there was no reason to treat CHP and SCIF differently than the private employer in Maheshwari. Both agencies here were likewise trying to recoup funds Clapp wrongfully obtained, so the investigations were a “‘proper, necessary, and a logical result of appellant’s criminal conduct.’” (Maheshwari, at pp. 1409–1410.)

The Third District thus concluded that as direct victims of Clapp’s fraud, both CHP and SCIF were entitled to restitution for investigative costs incurred in an effort to justify discontinuance of payments and recoup money Clapp fraudulently obtained. The Court of Appeal accordingly affirmed.

C. Civil rights plaintiffs who lost in federal court are barred from pursuing equivalent state law claims in a second suit in state court.

Shuler v. City of L.A., 62 Cal. App. 5th 793 (2nd Dist. 2021)

Facts: Los Angeles Police Department (“LAPD”) officers stopped Unuva Shuler’s car and detained her during a narcotics investigation. They arrested her passenger, Jerome Jones, on suspicion of drug dealing. The officers took Shuler, Jones, and the car to an LAPD station. At the station, an officer strip searched Shuler, told her to urinate in front of the officer, and kept her in a holding cell for two hours before releasing her without charges. The officers searched the car but found no drugs. They found and seized about $1,400 in cash. Shuler later reclaimed this money.

Shuler brought federal and state law claims against the City of Los Angeles and three LAPD officers in federal court. Shuler’s federal claim alleged a violation of 42 U.S.C. section 1983. Her state law claims included negligence.

The federal court bifurcated Shuler’s state claims and tried the federal section 1983 claim to a jury. The jury unanimously found that the police arrest and strip search of Shuler were reasonable, and that neither violated Shuler’s Fourth Amendment rights. Shuler’s state law claims were dismissed.

Shuler filed a second lawsuit in state court. Based on the strip search, Shuler alleged negligence and other state law claims against the City and the three officers. The defense moved for judgment on the pleadings, saying the case was barred as merely repetitive. The trial court agreed, saying at oral argument the issue was “not even close.” The trial court granted the defense motion without leave to amend. Shuler appealed.

Held: The California Second District Court of Appeal affirmed, explaining that the California Supreme Court’s Hernandez v. City of Pomona (2009) 46 Cal.4th 501 decision controlled the instant case because the essence of the case here was identical to Hernandez. Hernandez barred civil rights plaintiffs who lost in federal court from pursuing equivalent state law claims in a second suit in state court. (Id., at pp. 511–517.)

The Court stated that Shuler could not sue a second time because her first suit definitively settled her dispute: she lost and could not later try to prove the defendants acted unreasonably. The Court explained that litigating a settled question was a costly waste of resources and was not allowed.

The Second District noted that a federal jury found the police did not act unreasonably by strip searching her. Based on the jury instruction, the jurors found police had probable cause to believe Shuler was “either concealing a controlled substance or a weapon.” This justified strip search could not amount to state law negligence, as a matter of law.

D. Congress precluded judicial review of both designation and undesignation of items as defense articles under International Security Assistance and Arms Export Control Act of 1976.

Washington v. United States Dep’t of State, 2021 U.S. App. LEXIS 12448 (9th Cir. Apr. 27, 2021)

Facts: In 1976, Congress authorized the President to “designate those items which shall be considered defense articles” and “to promulgate regulations for the import and export of such articles.” International Security Assistance and Arms Export Control Act of 1976 (“Control Act”), Pub. L. No. 94-329, Section 212(a)(1), 90 Stat. 729, 744 (codified at 22 U.S.C. section 2778(a)(1)). The President delegated his authority to the Secretary of State.[8] In turn, the U.S. Department of State (“DOS”) promulgated and updated the International Traffic in Arms Regulations (“ITAR”) to control the licensing, export, and import of defense articles.[9] When DOS designates an item as a defense article, it is placed on the U.S. Munitions List and regulated by the ITAR. 22 U.S.C. section 2778(a)(1). The ITAR also regulates a defense article’s associated technical data. Congress delegated to the President’s discretion the decision concerning when an item becomes a “defense article.”[10] In 1989, Congress added the following text, codified at 22 U.S.C. section 2778(h): “The designation . . . of items as defense articles . . . shall not be subject to judicial review.”[11]

Under the Export Control Reform Act[12] (“Reform Act”), the Department of Commerce (“Commerce”) is empowered to regulate non-Munitions List items, which are placed on the Commerce Control List (“CCL”), subject to regulation under the Export Administration Regulations[13] (“EAR”). Congress gave Commerce broad discretion in deciding which items to place on the CCL. Congress also exempted Commerce’s “functions exercised under [the Reform Act]” from review under the Administrative Procedure Act (“APA”).[14]

In May 2018, DOS proposed a rule removing 3D-printed guns and their associated electronic files from the Munitions List and regulation under ITAR, and placing them on the CCL, regulated by Commerce under EAR. The same day, Commerce proposed its own rule expressly assuming regulatory jurisdiction over the items removed from the Munitions List.

During DOS and Commerce’s concurrent public comment periods, many commentors expressed concerns that shifting 3D-printed-gun files from the Munitions List to the CCL would impermissibly deregulate 3D-printed guns. DOS subsequently promulgated its final rule in January 2020. Commerce promulgated its final rule that same day.

The day the Final Rules were promulgated, 22 states and the District of Columbia (“States”) sued DOS and Commerce, challenging both Final Rules under the APA. The States sought to preliminarily and permanently enjoin the enforcement of the Final Rules. The District Court faulted Commerce’s Final Rule for procedural error, but preliminarily enjoined the DOS Final Rule. DOS and Commerce appealed.

Held: The Ninth Circuit Court of Appeals explained initially that an individual “suffering legal wrong because of agency action” is entitled to judicial review under the APA.[15] However, an agency’s action is unreviewable if a “statute[] preclude[s] judicial review.”[16] Yet the APA’s “basic presumption of judicial review” can only be overcome if there is “clear and convincing” evidence that Congress intended to preclude judicial review.[17] The District Court had held that the Final Rules were reviewable and that the States had shown a likelihood of success on their APA claims.

The Court of Appeals first considered the reviewability of the DOS Final Rule. Section 2778(h) of the Control Act provides: “The designation . . . of items as defense articles or defense services for purposes of this section shall not be subject to judicial review.” The Court faced the question of whether Section 2778(h) bars judicial review of the decision to undesignate items as defense articles (i.e., remove them from the Munitions List). The Court held that clear and convincing evidence demonstrated that Section 2778(h) of the Control Act could only be read one way: Congress precluded judicial review of both the designation and undesignation of items as defense articles.

The Court then addressed the reviewability of the Commerce Final Rule. The Court held that Congress not only barred APA challenges to Commerce’s Reform Act functions, it rendered them, in effect, judicially unreviewable. Because the APA’s Section 702 did not apply to “functions exercised under”[18] the Reform Act, federal sovereign immunity had not been waived, precluding judicial review of the States’ challenge. The Ninth Circuit held that the District Court erred by enjoining the DOS Final Rule in part for perceived procedural deficiencies in the Commerce Final Rule.

The Court concluded that because both the DOS and Commerce Final Rules were unreviewable, the plaintiffs had not demonstrated the requisite likelihood of success on the merits, and therefore, a preliminary injunction was not merited. The Ninth Circuit thus remanded with instructions to dismiss.

Believing that the majority’s holding would allow the new regulatory system to escape appropriate oversight, a dissenting judge would have affirmed the District Court’s order granting plaintiffs’ request for a preliminary injunction.

E. Defendant’s physical condition is a relevant factor in determining whether defendant’s belief in need for self-defense was reasonable.

People v. Horn, 63 Cal. App. 5th 672 (4th Dist. 2021)

Facts: In October 2016, 73-year-old Jack Junior Horn went for a walk with his wife on a hiking trail. 64-year-old Eugene Di Luigi was on a hiking trail in the same park with his three dogs. At a certain point, the two groups crossed paths, and Horn told Di Luigi to leash his dogs. The parties disagreed on what happened next. Di Luigi alleged that Horn was angry about the unleashed dogs; Horn hit Di Luigi with his walking stick and began punching him; and, after they separated and Horn was walking away, that Horn caught up and shot Di Luigi in the chest. According to Di Luigi, he nevertheless was able to call 911 and was eventually airlifted to a hospital for emergency life-saving surgery.

Horn testified that after he told Di Luigi to leash his dogs, an enraged Di Luigi charged toward him so Horn held up his walking stick and took out his gun for protection. Horn testified that he had severe spinal stenosis and had been warned by his doctor that he could become paralyzed if he ever took a hard fall. Horn testified that his fragile physical state was very much on his mind when Di Luigi charged at him, and that Horn drew his gun on Di Luigi because Horn was “sincerely worried about getting paralyzed.”

Although the jury acquitted him of attempted murder, Horn was found guilty of the lesser included offense of attempted voluntary manslaughter. Horn was sentenced to an aggregate term of nine years in prison. Horn appealed, arguing that the prosecutor misstated the law in closing argument by telling the jury that Horn’s physical infirmities were immaterial to whether his belief in the need for self-defense was objectively reasonable.

Held: The California Fourth District Court of Appeal explained that under California law, a defendant claiming self-defense must prove he subjectively believed in the need to defend and such belief was objectively reasonable. “Although the belief in the need to defend must be objectively reasonable, a jury must consider what ‘would appear to be necessary to a reasonable person in a similar situation and with similar knowledge … .’ [Citation.] It judges reasonableness ‘from the point of view of a reasonable person in the position of defendant … .’ [Citation.]” People v. Humphrey (1996) 13 Cal.4th 1073, 1082-1083.

The Court stated that when a defendant relies on self-defense, his physical condition “is always important … in determining what a reasonable man in the position of the defendant would have done under the same conditions.” People v. Smith (1907) 151 Cal. 619, 628. In a jury’s determination of whether a defendant, as a reasonable man, was justified in believing he was in imminent danger, “a defendant is entitled to have a jury take into consideration all the elements in the case which might be expected to operate on his mind, and as a debilitated physical condition preventing him from successfully resisting his assailant might reasonably be expected so to do, a defendant is entitled to have evidence of that fact, if it be a fact, go before the jury to be considered by them, with the other circumstances in the case, in ascertaining whether the plea of self-defense is sustained.” Ibid.

Based on the California Supreme Court’s decisions in Smith and Humphrey, the Fourth District concluded here that Horn was entitled to have the jury consider his spinal problems and fear of paralysis in determining whether his belief in the need for self-defense was objectively reasonable. The Court explained that those circumstances not only informed Horn’s subjective understanding of the risks presented by the Di Luigi’s actions, they had a logical bearing on what a reasonable person in a similar situation, and with similar knowledge, would believe. Thus, the prosecutor erred in arguing otherwise.

The Fourth District Court of Appeal nonetheless affirmed. The Fourth District concluded that the trial court rectified the prosecutor’s misstatement by subsequently instructing the jury that in considering the issue of self-defense, the jury must take into account any physical impairment that Horn had in determining how a reasonable person with such disabilities would have acted.

F. Trial court erred when it concluded ALADS did not have standing to seek damages on behalf of its members.

Ass’n for L.A. Deputy Sheriffs v. Macias, 2021 Cal. App. LEXIS 374 (2nd Dist. Apr. 30, 2021)

Facts: The Association for Los Angeles Deputy Sheriffs (“ALADS”) is a nonprofit mutual benefit corporation that represents employees of the Los Angeles County Sheriff’s Department and the bureau of investigations in the district attorney’s office. ALADS represents its more than 7,000 members in contract negotiations that culminate in a memorandum of understanding (“MOU”) governing wages, hours, and other conditions of employment for its members. ALADS has a seven-member board of directors elected by its voting members.

In March 2014, ALADS sued Armando Macias and John Nance (collectively, “defendants”) for breaches of their fiduciary duty to ALADS as members of its board of directors. The breaches of fiduciary duty occurred after the board removed Mr. Macias as a director and president of ALADS, on the ground that he was not qualified under the bylaws to be a director (a requirement for holding an executive office). Defendants refused to accept Mr. Macias’s removal, taking certain actions to contest the removal and remain in charge. These included informing the staff Mr. Macias was still a director and president; obtaining a cashier’s check for $100,000 from a political action committee account of ALADS to retain a law firm to defend the defendants; purporting to conduct board meetings without a quorum; and other actions that caused substantial disruption in ALADS’s management.

ALADS obtained a temporary restraining order requiring return of the $100,000, and several weeks later a preliminary injunction preventing Mr. Macias from claiming to be a director. In May 2018, the case was tried to the court. ALADS sought several categories of damages caused by defendants’ disruption of ALADS’s management, including $7.8 million in lost salary increases for its members due to the disruption defendants caused to ALADS’s operations, which in turn delayed its negotiation of a new MOU with the Los Angeles County. ALADS presented lay and expert testimony to prove the $7.8 million of lost salary it sought to recover on behalf of its members. That evidence was admitted without objection from defendants. Defendants then asserted in closing arguments, for the first time in the four-year course of the litigation, that ALADS lacked standing to recover monetary damages on behalf of its members.

The trial court entered judgment for ALADS, awarding damages sustained by ALADS and a permanent injunction, but found ALADS did not have standing to recover monetary compensation for its members. Both parties appealed.

Held: The California Second District Court of Appeal noted that defendants did not contend on appeal that there was no substantial evidence to support a finding that ALADS’s members sustained $7.8 million in damages. The trial court had concluded that ALADS lacked standing to recover damages on behalf of its members, reasoning that an association has standing to sue on behalf of its members only if it acts as a class representative – and ALADS had not brought a class action. The Second District considered the question of whether ALADS had associational standing.

The Court noted that the much-cited case Hunt v. Washington State Apple Advertising Com. (1977) 432 U.S. 333 set forth the following federal[19] rule on an association’s standing to sue on behalf of its members: “[A]n association has standing to bring suit on behalf of its members when: (a) its members would otherwise have standing to sue in their own right; (b) the interests it seeks to protect are germane to the organization’s purpose; and (c) neither the claim asserted nor the relief requested requires the participation of individual members in the lawsuit.” (Id. at p. 343.) Here, defendants did not challenge the existence of the first two criteria. The Court observed that under Hunt, if the first two criteria are met, an association does have standing if “neither the claim asserted nor the relief requested requires the participation of individual members in the lawsuit.” (Hunt, supra, 432 U.S. at p. 343; Teamsters, supra, 190 Cal.App.3d at p. 1522.)

The Second District held that ALADS had associational standing to seek damages on behalf of its members because it proved its lost compensation damages without objection by means of lay and expert testimony, admitted in evidence without objection by defendants, without calling any individual ALADS member to testify. The Court of Appeal noted that the trial court had initially found the ALADS’s presentation was sufficient to prove causation and the $7.8 million amount of damages. Although defendants cited Telecomms. Research & Action Ctr. ex rel. Checknoff v. Allnet Commun. Servs., 257 U.S. App. D.C. 1, 806 F.2d 1093 (D.C. Cir. 1986) to assert that an association can never seek damages on behalf of its members, the Second District observed that every ALADS member was affected by the loss in salary, and ALADS had the “special representational responsibility” that Allnet mentioned.[20] (Allnet, 806 F.2d at p. 1096.) The Court also concluded ALADS was entitled to cost-of-proof sanctions.

Accordingly, the Second District Court of Appeal amended the trial court’s judgment to include the $7.8 million in damages to ALADS’s members, affirmed the judgment as amended, and remanded as to the denial of sanctions.

[1] 384 U.S. 436 (1966).

[2] See Alvarez v. Gomez, 185 F.3d 995, 998 (9th Cir. 1999) (finding the request “[c]an I get an attorney right now, man?” was unequivocal); United States v. de la Jara, 973 F.2d 746, 750, 752 (9th Cir. 1992) (finding the request “[c]an I call my attorney?” was unequivocal).

[3] United States v. Harrison, 34 F.3d 886, 891-92 (9th Cir. 1994).

[4] See Stoot v. City of Everett, 582 F.3d 910, 928 (9th Cir. 2009); see also Chavez v. Martinez, 538 U.S. 760, 774 (2003) (plurality opinion).

[5] “SLAPP is an acronym for ‘strategic lawsuits against public participation.’” (City of Montebello v. Vasquez (2016) 1 Cal.5th 409, 413, fn 2.)

[6] The statutory text of subdivision g of Section 3303 was, at the time of the City of Pasadena case, within subdivision f of Section 3303.

[7] Labor Code section 4800.5(a) provides in pertinent part: “Whenever any sworn member of the Department of the California Highway Patrol is disabled by a single injury, excluding disabilities that are the result of cumulative trauma or cumulative injuries, arising out of and in the course of his or her duties, he or she shall become entitled, regardless of his or her period of service with the patrol, to leave of absence while so disabled without loss of salary, in lieu of disability payments under this chapter, for a period of not exceeding one year.”

[8] Administration of Arms Export Controls, Exec. Order No. 11,958, 42 Fed. Reg. 4,311 (Jan. 18, 1977).

[9] See generally 22 C.F.R. sections 120-130.

[10] See 22 U.S.C. section 2778(f)(5)(C) (explaining a “defense article” is “an item designated by the President” as such).

[11] Anti-Terrorism and Arms Export Amendments Act of 1989, Pub. L. No. 101-222, Section 6, 103 Stat. 1892, 1899.

[12] 50 U.S.C. section 4801.

[13] See 15 C.F.R. section 730 et seq.

[14] 50 U.S.C. section 4821(a).

[15] 5 U.S.C. section 702.

[16] 5 U.S.C. section 701(a)(1).

[17] Abbott Lab’ys v. Gardner, 387 U.S. 136, 140-41 (1967), abrogated on other grounds by Califano v. Sanders, 430 U.S. 99 (1977).

[18] See 50 U.S.C. section 4821(a): “[T]he functions exercised under [the Reform Act] shall not be subject to sections … 701 through 706 of Title 5.”

[19] The Second District noted that California courts have used the same test established in Hunt. See, e.g., Brotherhood of Teamsters & Auto Truck Drivers v. Unemployment Ins. Appeals Bd., 190 Cal.App.3d 1515 (1st Dist. 1987).

[20] Reviewing Allnet, the Second District stated, “The [D.C. Circuit] court then expressly ‘reiterate[d] that our decision establishes no per se rule that associations may never represent their members when monetary relief is immediately at stake.’ (Allnet, supra, 806 F.2d at p. 1096.) And, the court stated its decision did not ‘prejudge a case for damages in which the association possesses a special representational responsibility to the members on whose behalf it sues,’ citing cases involving labor unions. (Ibid.; see id. at pp. 1096–1097.)” (Emphasis added.)