CPOA CASE SUMMARIES – AUGUST 2018

POLICE CONDUCT/CONSTITUTIONAL LAW

  1. Defendant may be found guilty of resisting arrest, even where officer subsequently uses excessive force to effect the arrest, so long as the initial act of resistance occurs first.

People v. Williams, 26 Cal. App. 5th 71 (6th Dist. 2018)

Facts: In January 2016, two Santa Cruz Police Department Officers were engaged in training activities when they noticed a group of people. Keenan Johnson was smoking and playing loud music, and another of the group members had a dog – all municipal code violations. Intending to cite Johnson and warn the other offender, the officers approached the group. Defendant Andrew Kevin Williams was lying on the sidewalk and called the officer who started writing Johnson’s citation a “pig.” After a pedestrian was warned not to walk between the writing officer and Johnson, Williams got up and stood between Johnson and the officer writing the citation. The officers repeatedly instructed Williams to sit down and repeatedly warned him he would be arrested for resisting, obstructing, or delaying an officer. Yet Williams remained standing and kept his left hand in his coat pocket, raising officer safety concerns.

The officers attempted to subdue Williams in what became a prolonged physical struggle, and were later joined by other officers to subdue Williams on the ground as he continued to resist with his hand kept in his coat pocket. During the struggle officers tried to wrench Williams’ hand free, punched Williams in the face, and kneed him in the face and back – all failing to remove Williams hand out of his coat pocket to place him into handcuffs. Meanwhile, Williams tried to kick, position himself awkwardly, and spit on them in resisting the officers. Officers used shackles and a wrap during the course of the struggle, and finally subdued Williams.

Williams was charged with delaying, obstructing, or resisting a police officer engaged in the lawful performance of his duties pursuant to California Penal Code section 148(a)(1). During deliberations, the jury asked the following question: “If a peace officer is correctly conducting duties, [and a 148(a)[(1)] violation occurs, [and] then, subsequent to the violation, excessive force is used, does this invalidate the 148(a)[(1)] violation?” The trial court responded “NO” and the jury later found defendant guilty of violating Section 148(a)(1). Williams argued the jury instruction was erroneous in his appeal to the appellate division of the Santa Cruz County Superior Court, which reversed his conviction. The California Sixth District Court of Appeal ordered the case to be transferred to itself for decision.

Held: The Sixth District considered 1) whether the trial court correctly responded to the jury question about whether the use of excessive force “subsequent to” a violation of section 148(a)(1) “invalidate[s]” the violation and (2) whether the trial court properly instructed the jury on the acts that could constitute a violation of Section 148(a)(1).

Under Section 148(a)(1), a “person who willfully resists, delays, or obstructs any… peace officer … in the discharge or attempt to discharge any duty of his or her office or employment” is guilty of a misdemeanor. The Court observed that lawfulness of the officer’s conduct was an implicit, yet necessary ingredient for the offense to attach to a person who resisted, delayed, or obstructed the officer. However, the Court rejected Williams’ notion that the use of excessive force at any point during an encounter nullified a person’s violation of Section 148(a)(1).

The Sixth District agreed with the California Supreme Court’s “compelling” dicta in Yount v. City of Sacramento[1] that “‘“a defendant might resist a lawful arrest, to which the arresting officers might respond with excessive force to subdue him. The subsequent use of excessive force would not negate the lawfulness of the initial arrest attempt, or negate the unlawfulness of the criminal defendant’s attempt to resist it.”‘“ The Sixth District held here that “[l]ogically, the use of excessive force after a defendant’s completed [S]ection 148(a)(1) offense should not provide a basis for finding the defendant did not violate [S]ection 148(a)(1).” And the Court found that Williams, who repeatedly obstructed and resisted officers in the discharge of their duties throughout their encounter, had “completed” his Section 148(a)(1) offense before any subsequent use of excessive force. The Court concluded therefore that the jury was correctly instructed that a Section 148(a)(1) violation was not invalidated by any subsequent use of excessive force.[2]

The Sixth District also found that it was proper to instruct the jury that Williams could be convicted of a violation of Section 148(a)(1) if the jury found that he stepped in front of an officer who was writing a citation. The Court observed that Williams purposely stood between the officer and the person being cited while the officer lawfully attempted to issue a citation and after officers had instructed a pedestrian to go around, and he then ignored multiple requests and orders from officers to sit down, after they explained that Williams was interfering with the citation process. Williams never complied with officer orders. The Court found that a reasonable jury could find that this behavior constituted a violation of section 148(a)(1). The Court thus concluded the trial court did not err in its instruction pertaining to this matter also. Consequently, the Court affirmed the trial court’s judgment.

  1. Qualified immunity properly granted in civil rights suit where officer withheld material impeachment evidence about unreliable paid informant.

Mellen v. Winn, 2018 U.S. App. LEXIS 22952 (9th Cir. Aug. 17, 2018)

Facts: In October 2014, Susan Mellen secured habeas relief and was released from prison thereafter. She had been wrongly imprisoned for seventeen years after being convicted for first-degree murder in June 1998, primarily due to the testimony of June Patti (“Patti”).

In July 1997, Rick Daly’s body was found burned near a dumpster in San Pedro. Los Angeles Police Department (“LAPD”) Detective Marcella Winn was in charge of the investigation. An anonymous call identified three “Lawndale 13” gang members as Daly’s killers. This gang gathered around a duplex known for drug activity and owned by members of Mellen’s family. Susan Mellen had lived in the back house there before February 1997. Other callers suggested Daly was killed in the Mellen back house, after which the three Lawndale 13 members drove his body to San Pedro where they set it on fire. Detective Winn secured a search warrant for the duplex and arrest warrants for the three suspects identified by the caller. The search warrant was executed on the Mellen property early the next morning, resulting in several potential witnesses and residents of the property. Detective Winn later learned the three suspects identified by the caller had already been in custody after LAPD officers had arrested them on unrelated charges.

The night of the search warrant’s execution, Patti contacted Detective Winn for the first time. In mid-August 1997, Patti said in a recorded oral statement that Susan Mellen, who was Daly’s ex-girlfriend, had come to Patti’s hotel and confessed her involvement in the murder. At the end of Patti’s oral statement, Detective Winn prepared a written statement for Patti to sign. The written statement had details that Winn knew from the investigation but Patti had not said in her oral statement. Patti later said she had refused to sign the written statement multiple times due to added inaccuracies and noted that Winn had become angry. Patti later said she acquiesced because she needed to get to the airport, and signed the statement. Relying on Patti’s statement, Detective Winn presented the case against Mellen to the District Attorney. Mellen was arrested on one count of first-degree murder near the end of August 1997. She insisted in an interview with Detective Winn that she had no involvement with Daly’s murder.

Sometime before trial, Patti’s sister, Laura Patti (“Laura”), spoke with Detective Winn about Patti. Laura was also a Torrance Police Department officer at the time. She told Detective Winn that Patti was “the biggest liar” that she had “ever met” in her life and that she did not “believe anything [Patti] sa[id].” Laura said that Patti had been a habitual liar since the age of four or five; that her sister had filed more than twenty unsubstantiated complaints against Laura with the Torrance PD; and that Patti constantly lied to Torrance PD colleagues. Detective Winn did not inquire into why Laura believed her sister was a liar. Detective Winn did not tell the District Attorney of Laura’s statements, nor did Winn pursue the matter of Patti’s potential dishonesty.

At her deposition, Laura said she thought Patti might have been a Torrance PD informant in the early 1990s. It turned out Patti was a paid informant with Torrance PD until they deemed her an “unreliable informant” in 1993. She was also at the time of the investigation enrolled with two other police departments as a paid informant.

Mellen’s counsel was a private family law attorney who had earlier helped her with divorce proceedings. Meanwhile, the government was represented by a district attorney who had prosecuted cases since 1991. In pretrial proceedings, Mellen’s counsel, unaware of Laura’s statements to Detective Winn, questioned whether Patti might be a paid informant but the District Attorney said she had no knowledge of this. The trial court concluded that such a line of questions at trial would be inappropriate. At trial, the prosecution relied heavily on Patti’s testimony about Mellen’s supposed confession and the sequence of events. Though Patti’s testimony was inconsistent and introduced facts she had never mentioned at any point to anyone before (as Detective Winn testified, not even to her), and she admitted she had not previously told the whole truth, the jury nevertheless found Mellen guilty. She was sentenced to life in prison without parole in June 1998.

After she was released from prison seventeen years later, Mellen and her children brought a 42 U.S.C. section 1983 civil rights action against Detective Winn based on her failure to disclose Laura’s statements that her sister was “the biggest liar” that she had “ever met,” and that she did not “believe anything [Patti] says.” Detective Winn asserted qualified immunity, and the District Court granted summary judgment in Detective Winn’s favor. Mellen appealed.

Held: The Ninth Circuit Court of Appeals held that the record showed as a matter of law that Detective Winn withheld material impeachment evidence and raised a genuine issue of material fact as to whether Detective Winn acted with deliberate indifference or reckless disregard for Mellen’s due process rights.

The Court explained that its task was to determine whether Detective Winn’s failure to disclose Laura’s statements violated Brady v. Maryland[3] and Giglio v. United States[4] (extending Brady to impeachment evidence). The Ninth Circuit observed that the Supreme Court instructed that Brady/Giglio requires a “fact-intensive” inquiry into whether “there is a reasonable probability that, had the evidence been disclosed, the result of the proceeding would have been different.”[5] The Court explained: “The elements of a civil Brady/Giglio claim against a police officer are: (1) the officer suppressed evidence that was favorable to the accused from the prosecutor and the defense, (2) the suppression harmed the accused, and (3) the officer ‘acted with deliberate indifference to or reckless disregard for an accused’s rights or for the truth in withholding evidence from prosecutors.’”[6] Here, Detective Winn only disputed whether the suppression was material and whether she was deliberately indifferent not to disclose the statements.

The Court Microsoft explained that suppressed evidence is material if “‘the favorable evidence could reasonably be taken to put the whole case in such a different light as to undermine confidence in the verdict.’”[7] This was especially true if it impugned the testimony of a witness who was critical to the prosecution’s case.[8] Even Winn conceded that without Patti’s testimony, there would have been no conviction. The Court observed Patti’s testimony was the only evidence of Mellen’s relationship to the murder and that the trial turned on a decision between Patti’s word and Mellen’s. Moreover, the Supreme Court had observed that confession evidence was probably among the most damaging evidence against a defendant.[9] The Ninth Circuit considered Patti’s credibility to be crucial.

The Court found that if the jury had learned that Laura—the star witness’s own sister and a law-enforcement officer—believed that Patti was “the biggest liar” she had ever met, it would have put the government’s critical witness in a new light. Given that the prosecution relied so heavily on Patti’s testimony, the Ninth Circuit found that there was a reasonable probability that including Laura’s statements would have led to a different result. The Court thus concluded Laura’s suppressed statements were material.

The Court next addressed whether Detective Winn acted with deliberate indifference to or reckless disregard as per the third Brady/Giglio element. The Court noted that Detective Winn knew Patti’s testimony to be critical to the prosecution and so her credibility was likewise critical; Detective Winn was an experienced detective with had been involved in a hundred homicide investigations; Laura was not only Patti’s sister but also a police officer, which made her statements as a source particularly credible; Winn never vetted Laura’s statements about Patti’s credibility further; Winn never communicated Laura’s statements to the prosecuting attorney; and Winn enhanced Patti’s credibility on her written statement compared to what Patti had actually said. The Court concluded that these facts were sufficient for a reasonable juror to conclude that Detective Winn investigated Patti’s credibility and communicated only evidence favorable to the government, while willingly suppressing unfavorable evidence.

Moreover, “Detective Winn’s decision not to inquire further into Laura’s claims [was] the hallmark of a ‘deliberate action[] to avoid confirming suspicions’—an action tantamount to knowledge under the law.” The Court thus concluded that evidence on the record raised a genuine dispute of material fact that Detective Winn “acted with deliberate indifference or reckless disregard of Mellen’s due process rights when she failed to disclose Laura’s statements about her sister’s reputation for honesty to the prosecutor.”

The Court also concluded that the law at the time of the 1997-98 investigation clearly established that police officers investigating a criminal case were required to disclose material, impeachment evidence to the defense. This negated Detective Winn’s entitlement to qualified immunity. The Court looked at three cases as precedent clearly establishing this behavior. Carrillo v. County of Los Angeles[10] held that it was clearly established by 1984 that police officers were bound to disclose material, exculpatory evidence. United States v. Butler[11] was an even earlier case that concluded that police investigators violate Brady when failing to disclose material impeachment evidence to prosecutors. The Supreme Court decision in Kyles v. Whitley[12] explicitly extended Brady requirements to police officers in rejecting the state’s argument that it should not be held accountable for evidence known only to police investigators and not to the prosecutor. The Ninth Circuit found these cases controlling and accordingly reversed the District Court’s grant of summary judgment for Detective Winn on Mellen’s section 1983 claim premised on a violation of her due process rights, and remanded.

Finding in favor of Mellen and her children on remaining claims also, the Court concluded that summary judgment should not have been granted based on the evidence on record. The Ninth Circuit accordingly reversed and remanded.

  1. Defendant forbidden from entering residence by court’s no-contact order cannot claim an objectively reasonable expectation of privacy therein.

United States v. Schram, 2018 U.S. App. LEXIS 23314 (9th Cir. Aug. 21, 2018)

Facts: In September 2014, Medford Police Department detectives investigated the robbery of a bank. After interviewing eyewitnesses and further police work, the detectives had probable cause to believe that defendant Gerald Schram was responsible. A records check revealed that Schram was prohibited from contacting his girlfriend, Zona Satterfield, by a no-contact order. Without any other address to connect to Schram, the detectives began their search at Satterfield’s residence. Lacking a warrant (and, the Court assumed for the purposes of the appeal, without Satterfield’s consent), the detectives entered the residence, found Schram therein, and arrested him. They then obtained a search warrant and searched Satterfield’s home.

Indicted later for bank robbery, Schram moved to suppress the evidence obtained in the search. The District Court denied the suppression motion because Schram had no expectation of privacy in a residence that he was not legally allowed to enter and could not object to the detectives’ entry there. Schram pled guilty, conditioned on his right to appeal the denial of his suppression motion. He appealed.

Held: The Ninth Circuit Court of Appeals held that a person prohibited from entering a residence by a court’s no-contact order lacked a legitimate expectation of privacy in that residence and could not challenge its search on Fourth Amendment grounds. The Court explained that an individual could not claim a Fourth Amendment rights violation when that individual lacked a “legitimate expectation of privacy in the premises” searched. Byrd v. United States, 138 S. Ct. 1518, 1526[](2018) (quoting Rakas v. Illinois, 439 U.S. 128, 133[](1978)). And an individual had a “legitimate expectation of privacy” if: “(1) the individual demonstrates a subjective expectation of privacy in the place being searched, and (2) this subjective expectation is one ‘that society accepts as objectively reasonable.’ California v. Greenwood, 486 U.S. 35, 39[](1988).” Rakas declared that a privacy interest was not reasonable when one’s presence in a place was “wrongful.”

Citing various Circuit Court cases that concluded that burglars, trespassers, deceitful hotel guests, escaped inmates, and squatters had no legitimate expectation of privacy in their unlawful conduct, the Ninth Circuit lastly discussed the Third Circuit decision in United States v. Cortez-Dutrieville,[13] which held that an individual whose presence in a home was barred by a court no-contact order lacked “‘any expectation of privacy.’” The Third Circuit there “rejected the defendant’s contention that the no-contact order was vitiated by the consent of the person whom the order barred the defendant from contacting.” Schram here similarly argued that Satterfield had consented to his presence, and tried to cite in support the Ninth Circuit’s recent Byrd decision,[14] which held that a defendant who had not signed a rental car agreement could still have a legitimate privacy expectation in the rental car to challenge its search. But Byrd maintained that a car thief would still not have a reasonable expectation of privacy in a stolen car, and Byrd also quoted Rakas in concluding that “a defendant whose presence on a premises violates the law may not ‘object to the legality of [the premises’] search.’” Schram’s violation of the no-contact order on premises that he was not allowed to be upon precluded him from any legitimate expectation of privacy there, and he could not challenge the detectives’ search there on Fourth Amendment grounds. The Ninth Circuit accordingly affirmed.

PUBLIC EMPLOYEES

  1. Meet and confer duty attaches where local official with responsibility over labor relations uses power of office to lead promotion of ballot initiative affecting public employment terms and conditions. 

Boling v. Public Employment Relations Board, 5 Cal. 5th 898 (2018)

Facts: Per city charter, San Diego has a “strong mayor” form of government in which the mayor acts as the city’s chief executive officer. In this CEO-function, the mayor recommends measures and local ordinances to the City Council, conducts collective bargaining with the city employee unions, and addresses compliance with the meet-and-confer requirements of the Meyers-Milias-Brown Act (“MMBA”) as codified in Government Code section 3500 et seq. Under the MMBA, governing bodies or their designated representatives (such as the San Diego mayor-CEO) are required to engage with unions on appropriate matters “‘prior to arriving at a determination of policy or course of action’” (Gov. Code section 3505).

Beginning in November 2010, San Diego city officials proposed public employee pension reforms in response to budget deficit concerns. Mayor Jerry Sanders came up with a plan to develop a citizens’ initiative that eliminated traditional pensions for new hires, except in the police department, and replace them with a 401(k)-style plan. Generally, proposals to amend a city’s charter can be submitted to voters either: (1) by the city’s governing body on its own motion, or (2) by an initiative petition signed by 15%[15] of the city’s registered voters.[16] Mayor Sanders had concluded that the San Diego’s City Council was unlikely to put his own proposal on the ballot and that the meet-and-confer process might lead to comprises. In an interview, he had said “‘…you do that so that you get the ballot initiative on that you actually want. … [A]nd that’s what we did. Otherwise, we’d have gone through the meet and confer and you don’t know what’s going to go on at that point.’” As mayor, Sanders led the charge in developing and publicizing the ballot initiative plan in interviews, press conferences and the like, though it was formally presented as an initiative emanating from voter efforts. Enough signatures were gathered to get the initiative on the June 2012 ballot, where Sanders provided the pro-initiative argument. The voters approved the initiative. That election night, Sanders lauded it as the latest of his pension reform efforts over the years.

Beginning in July 2011, the San Diego Municipal Employees Association (“Union”) had written repeated letters to Sanders and City officials, claiming the City was obligated under the MMBA to meet and confer regarding the initiative because Sanders was acting in his official role as Mayor to promote it. He thus had made a determination of policy for the City of San Diego related to “mandatory subjects of bargaining.” The Union said the citizens’ initiative process was a pretense to dodge the City’s MMBA obligations. The general response from the mayor and City allies of the initiative was minimal and maintained the City’s inability to legally interject in the citizen-sponsored initiative “at this point in the process.” In January 2012, the Union filed an unfair practice charge based on the City’s failure to meet and confer and claiming the “‘City’s ‘Strong Mayor’” intended the initiative to enable the City to evade its MMBA obligations. Other unions followed. In February 2012, after the City Council had voted to put the initiative on the June 2012 ballot, the Public Employment Relations Board (“PERB”) alleged the failure to meet and confer constituted an unfair labor practice in a complaint against the City. PERB appointed an administrative law judge (“ALJ”) to hold a hearing on a consolidated claim. PERB also filed a superior court action to prevent the initiative from being on the June 2012 ballot. The trial court decided against a preliminary injunction. It granted the City’s request to stay the ALJ’s scheduled June 2012 hearing.

The Union sought writ relief. The Court of Appeal granted relief and vacated the stay of the administrative proceedings, stating the City’s activity as alleged “arguably violated public employment labor law.” After the initiative had passed on the June 2012 ballot, the ALJ found that Sanders had a duty to meet and confer with the unions because his conduct amounted to a policy determination on a negotiable matter. PERB affirmed, concluding that the City’s determined refusal to respond to the Unions’ meet-and-confer requests “‘consummated the Mayor’s policy decision to reform pension benefits and thereby alter terms and conditions of employment.’” PERB adjusted the ALJ’s proposed remedy to vacate the results of the election. Invoking its “make-whole” and “restoration” powers for remedying MMBA violations, PERB required the City to pay its employees for adjusted lost pension benefit compensation – payments to continue for as long as the initiative was in effect, or until the parties mutually agreed otherwise.

PERB’s decision was challenged by a consolidated writ petition from the City and the initiative’s citizen proponents. The Court of Appeal ruled that the City was not required to meet and confer before placing the initiative on the ballot, holding that a City’s decision to place a citizens’ initiative measure on the ballot was “purely ministerial and did not trigger the obligation to meet and confer.”

Held: The Supreme Court of California found that the mayor as the city’s designated bargaining agent had used the powers of his office to change the terms and conditions of employment by means of a ballot initiative. He therefore had a duty, under Section 3505, to meet and confer with public employee organizations. In reaching its conclusion, the Court gave deference to PERB in the matter because it was settled that courts generally defer to PERB’s construction of labor law provisions within its jurisdiction.

The Court explained as an initial matter that the standard of review for an agency’s legal determinations was “one in which the judiciary, although taking ultimate responsibility for the construction of the statute, accords great weight and respect to the administrative construction.”[17]  “As noted in Cumero v. Public Employment Relations Bd. (1989) 49 Cal.3d 575, 586, interpretation of a public employee labor relations statute ‘“‘falls squarely within PERB’s legislatively designated field of expertise,’” dealing with public agency labor relations. Even so, courts retain final authority to ‘“state the true meaning of the statute.’” The Supreme Court added that, pursuant to Government Code section 3509.5(b),[18] it must uphold PERB’s decision if it was supported by substantial evidence on the whole record. The Court noted that, under the MMBA and other statutes, the Legislature granted PERB the power to adjudicate unfair labor practice claims. The Court explained that it was “settled” that courts generally defer to PERB’s construction of labor law provisions within its jurisdiction because PERB was “‘one of those agencies presumably equipped or informed by experience to deal with a specialized field of knowledge, whose findings within that field carry the authority of an expertness which courts do not possess and therefore must respect.’”[19] “We follow PERB’s interpretation unless it is clearly erroneous.”[20] The Supreme Court found the Court of Appeal erred in reviewing PERB’s MMBA construction de novo, instead of the more deferential standard.

The Supreme Court observed that the focus of the MMBA is Government Code section 3505, which mandates that a governing body of a local public agency, or its designated representative, meet and confer in good faith on employment terms and conditions with representatives of recognized employee organizations. The Court noted that “‘[t]he duty to meet and confer in good faith has been construed as a duty to bargain with the objective of reaching binding agreements between agencies and employee organizations …. The duty to bargain requires the public agency to refrain from making unilateral changes in employees’ wages and working conditions until the employer and employee association have bargained to impasse … .” (Santa Clara County Counsel Attys. Assn. v. Woodside (1994) 7 Cal.4th 525, 537.)

Reviewing People ex rel. Seal Beach Police Officers Assn. v. City of Seal Beach,[21] the Court explained that MMBA objectives include fostering full communication between public employers and employees and improving employer-employee relations. These goals required compliance with Section 3505, which placed a relatively “minimal” burden on a local agency’s governing functions, even when an agency chose to take a proposal directly to the voters.

The Court recalled that Section 3505 expressly imposed the duty to meet and confer on the governing body of a public agency, or such boards, commissions, administrative officers “‘or other representatives as may be properly designated by law or by such governing body.’” The Court noted that here, “the mayor was the city’s chief executive, empowered by the city charter to make policy recommendations with regard to city employees and to negotiate with the city’s unions. Under the terms of Section 3505, he was required to meet and confer with the unions ‘prior to arriving at a determination of policy or course of action’ on matters affecting the ‘terms and conditions of employment.’” The Court viewed this construction as promoting the Legislature’s statutory intent and the MMBA’s objectives of fostering employer-employee communication and harmonious personnel management, rather than one that would allow public officials to purposefully evade the MMBA’s meet-and-confer requirements by officially sponsoring a citizens’ initiative.

The Court found that Sanders “consistently invoked his position as mayor and used city resources and employees to draft, promote, and support the [i]nitiative.” Given the facts here, the Court found that Sanders, the city-CEO “strong mayor” with authority over labor relations, pursued pension reform as a matter of policy by means of the promotion of the ballot initiative. The Court thus concluded that substantial evidence supported PERB’s conclusion that Sanders’s activity created an obligation to meet and confer. Accordingly, the California Supreme Court reversed the Court of Appeal’s judgment.

For a more detailed discussion of this case, please see Client Alert Vol. 33, No. 28, available at www.jones-mayer.com.

  1. Judgment granting plaintiff new trial reversed where defendant is not required to provide warning and notice under Section 911.3. 

Estill v. County of Shasta, 25 Cal. App. 5th 702 (3rd Dist. 2018)

Facts: In February 2012, Renee Estill, a former Shasta County Sheriff’s Office, submitted a government claim against the County of Shasta (“County”) and others. In her government claim, she represented that although she “first became aware” of an alleged incident of wrongdoing in September 2011, the injury had occurred in September 2009. The County accepted Estill’s claim as timely based on her representation, but denied the claim on the merits, informing Estill that subject to certain exceptions, she had “only six (6) months from the date this notice was personally delivered or deposited in the mail to file a court action on this claim (see Government Code [s]ection 945.6).” The County, convinced by Estill of the claim’s timeliness, did not warn Estill to seek leave to present a late claim. Estill filed within six months of receiving the notice. During Estill’s deposition, the County learned that Estill had actually become aware of the alleged wrongdoing in 2009, not in 2011.

The trial court granted the County’s motion for summary judgment primarily on the ground that Estill’s government claim was untimely. Yet the court later also granted Estill’s motion for a new trial, concluding that there were triable issues of fact as to whether the County had waived their untimeliness defense under Government Code section 911.3 by not warning Estill to seek leave to present a late claim. The County appealed the order for a new trial. Estill also cross-appealed on the summary judgment.

Held: The County contended that Estill presented her government claim more than two years after the causes of action accrued, and so the trial court should have denied her motion for a new trial. The California Third District Court of Appeal reviewing de novo explained that “[s]uspicion of one or more elements of a cause of action, coupled with knowledge of any remaining elements, generally triggers accrual.”[22] Here, Estill filed her government claim more than six months after her causes of action accrued[23] beginning no later than July 2010, since Estill had become aware of wrongdoing to her by then. Estill filed in February 2012, more than six months after July 2010’s accrual starting point. The Court thus concluded as a matter of law that she was not entitled to relief unless there was some exemption for not complying with the six-month window requirement of Government Code Section 911.2.

The Court did not find any such exemption. Under Government Code section 911.3, for an untimely claim such as Estill’s, the County could have given Estill notice within 45 days that she should seek leave to present a late claim. Estill contended that the County’s failure to do so effectively waived their defense of Estill’s claims’ untimeliness pursuant to Section 911.3(b). The Court found the argument’s fatal flaw in holding that “a claimant may be estopped from invoking Section 911.3 waiver provision where a public entity’s failure to notify the claimant that a claim is untimely is induced by the claimant’s representation on the government claim form.”

Here, the Third District found that Estill was estopped to assert a section 911.3 waiver because she represented on her government claim form that the date she “first became aware of [the] incident” was in September 2011. She included an attachment to her government claim in which she could have explained what she knew in 2009 and thereafter about the alleged misconduct but she chose not to mention anything about it. Instead, the attachment restated her representation that she learned about the alleged violations in September 2011. “When she submitted her government claim form, Estill knew the true facts about when she first became aware of the alleged unlawful conduct, but the County did not.” The Court found the only reasonable inference to be drawn from the record was that Estill intended the County to treat her claim as timely. The Court noted the County did rely on her representation and treated the claim as timely, denying the claim on the merits. The Court explained that it would be unfair to allow Estill to subsequently assert that under Section 911.3 (b), the County waived its Section 911.2 timeliness defense by accepting her repeated representations. Because Estill induced the County to treat the claim as timely, the County was not required to give the Section 911.3(a) notice and warning.

The Court concluded that Estill was estopped to assert a Section 911.3(b) untimeliness defense waiver because she represented on her government claim form that she learned of alleged misconduct in September 2011. Accordingly, the Court reversed the trial court’s order granting Estill’s motion for a new trial and affirmed the summary judgment in favor of the County. 

FIREARMS / SECOND AMENDMENT

  1. Regulations requiring certain firearms to bear new safety mechanisms and a microstamping device to identify discharged round passes intermediate scrutiny as ‘reasonable’ means toward important governmental ends of public safety and crime prevention.

Pena v. Lindley, 898 F.3d 969 (9th Cir. 2018)

Facts: Passed in 1999 and effective beginning 2001, California’s Unsafe Handgun Act (“UHA” or the “Act”) was intended to reduce the number of firearm deaths in the state. The main enforcement clause reads: “A person in this state who manufactures or causes to be manufactured, imports into the state for sale, keeps for sale, offers or exposes for sale, gives, or lends an unsafe handgun shall be punished by imprisonment in a county jail not exceeding one year.”[24] Under the UHA, new models of handguns must meet certain criteria and be listed on a handgun roster before being offered for sale in California.

Ivan Pena, along with several other individuals and two firearms-focused nonprofit organizations (collectively, “Plaintiffs” or “Purchasers”), sued the California Bureau of Firearms Chief, arguing that the UHA violated constitutional rights. Purchasers focused on three specific UHA provisions. Two provisions required new models of semiautomatic pistols to have a chamber load indicator (“CLI”) and a magazine detachment mechanism (“MDM”), both designed to limit accidental firearm discharges. The third provision, adopted to assist law enforcement, required new models of semiautomatic pistols to microscopically stamp the handgun’s make, model, and serial number onto each fired shell casing.

Purchasers asserted that the three provisions narrowed their ability to buy firearms in California, violating their Second Amendment rights. They also asserted that the handgun roster system violated the Equal Protection Clause of the Fourteenth Amendment. The District Court eventually granted summary judgment to California, holding that the provisions imposed conditions on the sale of firearms, not prohibitions – “[i]nsistence upon particular” handguns fell outside the scope of the Second Amendment. Plaintiffs appealed.

Held: The Ninth Circuit Court of Appeals affirmed. The Second Amendment provides: “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.[25] The Ninth Circuit cited the Supreme Court’s landmark decision in District of Columbia v. Heller[26] in assessing whether the Act violated the Second Amendment. Heller held that the Second Amendment protects an individual right to possess a lawful firearm at home for self-defense, adding that “…nothing in our opinion should be taken to cast doubt on […] laws imposing conditions and qualifications on the commercial sale of arms.”

Heller provided a two-step process to decide whether a legislative act violates Second Amendment rights: (1) a determination of whether the act burdened protected conduct, and if so; (2) applying the appropriate level of scrutiny. Jackson v. City & Cty. of S.F., 746 F.3d 953, 960 (9th Cir. 2014). Observing that Heller left some ambiguity in establishing firm answers to the parameters of the first factor in the inquiry, the Ninth Circuit chose to follow the “well-trodden and ‘judicious course’” of prior Circuit Court cases in assuming the Act here burdened protected conduct, and then proceeding to second step – the determination of level of scrutiny. In doing so, the majority said it entirely bypassed the “constitutional obstacle course” that the Dissent engaged in for its analysis of the Second Amendment’s protections in the context of commercial sales.

Turning to the determination of the level of scrutiny, the Court observed that intermediate scrutiny would apply here if the UHA “does not implicate the core Second Amendment right or does not place a substantial burden on that right.”[27] The Court found that the three UHA provisions did not substantially burden core Second Amendment rights.

The Court explained that hundreds of existing models already on the roster that did not currently meet the three provisions’ requirements would not have to add CLI and MDM capabilities in the future; the provisions did not affect out-of-state sales or private sales of off-roster existing handguns; and the CLI, MDM, and microstamping requirements did not restrict any physical function of any arms. The Court also observed that the provisions did not prohibit the right of possession entirely, but only regulated of the manner of use and thus affected the Second Amendment rights less severely. Heller stated that the Second Amendment right was “‘not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose.’” Here, the Ninth Circuit noted that “all of the plaintiffs admit that they are able to buy an operable handgun suitable for self-defense—just not the exact gun they want.” The Court agreed with the District Court that the UHA only regulated commercial sales, not possession, and did so in a way that did not impose a substantial burden on Purchasers. The Court therefore found intermediate scrutiny to be the appropriate standard to use.

The Court then applied intermediate scrutiny here. The Court of Appeals explained that “intermediate scrutiny requires (1) a significant, substantial, or important government objective, and (2) a ‘reasonable fit’ between the challenged law and the asserted objective. Jackson v. City & Cty. of San Francisco, 746 F.3d 953, 965 (9th Cir. 2014).” The Ninth Circuit said there was no doubt that the governmental interests of both firearm operator safety and public safety were substantial. The CLI and MDM requirements addressed concerns of firearm operators and the public being injured by cheaply made unsafe handguns from accidental fire. They were thus a reasonable fit with California’s interest in public and firearm operator safety.

The Court next considered the microstamping requirement, which Purchasers agreed served legitimate government interests in public safety and crime prevention. The Legislature found, and the Court deferred to this finding, that microstamping would limit the availability of untraceable bullets and help with providing rapid leads in a state with an “enormous and diverse” unsolved homicide problem. The Court declined to second-guess the Legislature’s conclusions on the technological feasibility or the efficacy of microstamping, particularly since the Legislature had weighed competing evidence gathered from studies and experts before enacting the statute. The Court also found microstamping a forward-thinking technological advancement, similar to the imprinting of serial numbers on guns that was imposed by United States v. Marzzarella.[28] The Court thus found that California had shown that the microstamping requirement was reasonably tailored to address the substantial problem of untraceable bullets at crime scenes, and shown the value of microstamping’s use a reasonable means of identification. Thus, the requirement passed intermediate scrutiny.

Finally, the Court rejected the Purchasers’ claim that the provisions violated the Equal Protection Clause because of exceptions for law enforcement purposes, among others. The Court found “manifestly rational” that peace officers could possess and use firearms more potent than everyone else in order to maintain public safety. Accordingly, the Ninth Circuit affirmed.

In his dissent, Judge Bybee could not conclude that the State was entitled to summary judgment on the microstamping requirement challenge given the state’s demanding testing protocol, which Purchasers alleged acted as a prohibition on the commercial sale of new handguns in California. Judge Bybee would have reversed and remanded on this issue.

  1. Statute eliminating school zone firearm carry exemption for permitted concealed carriers but not former peace officers survives rational basis review.

Gallinger v. Becerra, 898 F.3d 1012 (9th Cir. 2018)

Facts: In 1994, the California Legislature enacted the Gun-Free School Zone Act, which banned the possession of firearms on school grounds and within school zones (the area within 1,000 feet of school grounds). The Act exempted two groups: (1) individuals licensed to carry a concealed firearm under California law; and (2) retired peace officers authorized to carry a loaded firearm.

In response to a “‘disturbing increase in the number of active shooter incidents’” on school campuses across the country, the Legislature passed Senate Bill 707 (“SB 707”) in 2015 to give school officials control of who could bring firearms onto their campuses. The initial version of the proposed amendment had prohibited both exempted groups from carrying firearms on school grounds. Law enforcement organizations had actively opposed the initial version. The version of SB 707 that successfully passed kept the retired-officer exception for firearm possession on school grounds, as well as within school zones, but prohibited concealed carry weapon holders from possessing a firearm on school grounds.

In 2016, the plaintiffs filed suit, alleging that SB 707 violated the Equal Protection Clause of the Fourteenth Amendment because it treated concealed weapon permit holders differently from retired peace officers. The District Court dismissed plaintiffs’ challenge, concluding that the Legislature had a rational basis for differential treatment because the retired peace officer exemption was rationally related to the legitimate state interest in ensuring the protection of retired peace officers. The District Court also found no evidence of “‘explicit legislative intent to cause harm to civilian gun owners’” to support the plaintiffs’ additional claim based on an alleged disfavored status. The plaintiffs appealed.

Held: The Ninth Circuit Court of Appeals affirmed, holding that the state’s classifications served legitimate state interests in the safety of retired peace officers and public safety generally. The Court began by observing that under the Fourteenth Amendment’s Equal Protection Clause, no State may “deny to any person within its jurisdiction the equal protection of the laws.” The Court understood this text as “‘essentially a direction that all persons similarly situated should be treated alike.’”[29] Plaintiffs argued while the set of retired peace officers was an exempted group, concealed carry weapon (CCW) permit holders constituted a “similarly situated” group that would be treated differently by SB 707, and thereby violate the Equal Protection Clause.

The Court said this line of reasoning need not be pursued because the Court held that SB 707 did not violate the Equal Protection Clause under rational-basis review (which both parties had accepted as the appropriate standard). Under rational-basis review, “‘legislation is presumed to be valid and will be sustained if the classification drawn by the statute is rationally related to a legitimate state interest.’”[30] The Court observed that “[i]n applying rational-basis review, we thus find ourselves free to consider any “legitimate governmental interest”[31] the State has in permitting retired peace officers to carry firearms on school grounds.” Here, the two interests were public safety and the protection of retired peace officers.

The Court rejected the plaintiffs’ contention that Silveira v. Lockyer[32] controlled here. Silveira held that the provision of California’s Assault Weapons Control Act (“AWCA”) exempting retired peace officers from a statewide ban on assault weapons violated the Equal Protection Clause. Analyzing Silveira, the Ninth Circuit observed: “Silveira tells us that exempting retired peace officers from that state-wide general ban and permitting them to carry assault weapons on school grounds is not rationally related to permissible legislative goals, including retired officer or public safety. At the same time, Silveira says nothing about the rational relationship between permissible legislative goals and SB 707’s classification permitting retired peace officers to carry other kinds of firearms on school grounds.”

The Ninth Circuit found a meaningful difference between the conduct regulated by the AWCA and SB 707, in part because of “the commonsense reason that assault weapons are more dangerous than other kinds of firearms.” Assault weapons’ “exceptional lethality” was not accompanied by evidence that they were “well-suited to self-defense,”[33] nor even preferred for self-defense compared to handguns.

The Court summarized: “[W]hile the inherent risks that accompany carrying assault weapons for self-defense or public-safety purposes may outweigh any increased benefits to a retired officer’s or the public’s safety, the same need not be true for other kinds of firearms.” The Court added that it would not second-guess the Legislature’s decision that retired peace officers were at heightened risk of danger due to possible enemies made during their law-enforcement careers, and that the risk was diminished by allowing their use of firearms other than assault weapons on school grounds. Moreover, the Court would not undermine the Legislature’s determination that retired peace officers, being more skilled as a class in safe and effective use of firearms due to professional training, were a distinct asset in the mission of campus safety. The Ninth Circuit thus held that allowing retired peace officers to carry firearms other than assault weapons on school grounds was sufficiently connected to the legitimate governmental interest in ensuring such officers’ safety and public safety to survive rational-basis review.

Though its holding sufficed to deny the plaintiffs’ claim, the Court also rejected plaintiffs’ contention that SB 707 violated the Equal Protection Clause because it was enacted to favor a politically powerful group (allegedly the law enforcement community that argued for the retired officer exemption) and to disfavor a politically unpopular one (CCW permit holders). The Ninth Circuit found that plaintiffs failed to plausibly allege that the Legislature enacted SB 707 with “impermissible animus” toward concealed carry permit holders, regardless of the effectiveness of law enforcement lobbying efforts. The Ninth Circuit affirmed.

MISCELLANEOUS

  1. California Supreme Court Upholds Public Agency Pursuit Immunity Accorded by California Vehicle Code section 17004.7.

Ramirez v. City of Gardena, 5 Cal. 5th 995 (2018)

Facts: Police officers employed by the City of Gardena (“City”) were pursuing a pickup truck on February 15, 2015. Mark Gamar was a passenger in the truck. Officer Michael Nguyen, one of the pursuing officers, bumped the left rear of the truck with the right front of his own vehicle to stop the truck using a maneuver called a “Pursuit Intervention Technique” (“PIT”). The truck spun into a streetlight pole, and Gamar died from injuries he sustained from the collision.

At the time of the incident, the City had a written policy governing vehicle pursuits. The City provided training to its police officers on its pursuit policy on at least an annual basis. That training included a requirement that officers must certify electronically that they had received, read, and understood the pursuit policy. A training log produced by the City showed that 81 of the City’s 92 officers (including Officer Nguyen) had completed the annual training on the City’s pursuit policy within a year of the incident. The City also produced written certifications completed by 64 officers in 2009 and 2010 attesting that they had received, read, and understood the City’s pursuit policy. According to testimony submitted by the City’s custodian of records, all City officers employed at the time of the incident completed such forms.

Plaintiff Irma Ramirez, Gamar’s mother, filed a wrongful death suit against the City, claiming that Officer Nguyen acted negligently and committed battery in performing the PIT maneuver. The City moved for summary judgment, in part on the ground that it was immune from liability under California Vehicle Code section 17004.7. The trial court granted the motion. Although the trial court concluded there were issues of fact relating to the reasonableness of Nguyen’s actions in conducting the PIT maneuver, the court concluded that the City was immune under Section 17004.7 because the City properly promulgated its pursuit policy in compliance with Section 17004.7 and provided regular and periodic training to its officers. The court also found that the policy met section 17004.7’s other requirements. Ramirez appealed.

Relying on the Fourth District Court of Appeal’s decision in Morgan v. Beaumont Police Dept.,[34] Ramirez argued on appeal that the City was not entitled to immunity because it failed to provide evidence that all of its officers had executed written certifications in compliance with Section 17004.7, subdivision (b)(2). The Second District Court of Appeal disagreed, holding that, if a public agency imposed the certification requirement, the agency was not required to prove each and every officer complied with the requirement. In disagreeing with the Morgan court, the Court of Appeal explained that Morgan did not consider other possible constructions of the provision, including the construction that promulgation meant only that an agency must implement its own certification requirement to obtain immunity. Because the City’s pursuit policy imposed the certification requirement, the Court of Appeal affirmed the trial court’s ruling of summary judgment for the City.

Held: The Supreme Court of California granted Ramirez’s petition for review to address the following question: Is the immunity provided by Section 17004.7 available to a public agency only if all peace officers of the agency certify in writing that they have received, read, and understand the agency’s vehicle pursuit policy?

The Supreme Court explained that Section 17004.7 “provides public agencies employing peace officers immunity from damages for collisions resulting from police chases if, but only if, the agency ‘adopts and promulgates a written policy on, and provides regular and periodic training on an annual basis for, vehicular pursuits . . . .’ ([Section] 17004.7, subd. (b)(1).) Promulgation of the written policy must include ‘a requirement that all peace officers of the public agency certify in writing that they have received, read, and understand the policy.’ (Id., subd. (b)(2).)”

The Court considered its task on appeal to be resolving the interpretation of Section 17004.7(b)(2)’s “requirement that all peace officers of the public agency certify in writing that they have received, read, and understand the policy.” Did this text mean it was sufficient if the policy contained the requirement? Or, did the public entity have to prove not only that it had imposed the requirement, but also that all of the entity’s peace officers had complied with it? The Fourth District in Morgan and plaintiff Ramirez argued for the second view – “promulgation” of the pursuit policy meant that each officer must certify in writing that they had received, read, and understood the agency’s vehicle pursuit policy.

The California Supreme Court explained here that “the statutory language resolves the issue” because Section 17004.7(b)(2) did not say that all of an entity’s peace officers must have made the certification for the public agency to obtain immunity. It said instead that “[p]romulgation” of the policy must include “a requirement that all peace officers of the public agency certify in writing that they have received, read, and understand the policy.” The Court concluded that the plain meaning was that the policy must include the requirement, not that every peace officer must meet the requirement.

The Supreme Court also found that the statute’s purpose and public policy led to the same conclusion. The Court noted that Ramirez’s interpretation would impose a heavy burden on public agencies, especially large ones. The Supreme Court quoted the Court of Appeal to observe that requiring 100 percent compliance as a condition of immunity could potentially result in the “‘absurd circumstance that the failure of a single officer to complete a written certification in an agency employing thousands could undermine the agency’s ability to claim immunity, even though the agency conscientiously implemented its pursuit policy.’” (The Court’s interpretation comports with the concerns we discussed in our amicus brief that the construction espoused by Morgan and plaintiff Ramirez would improperly “deny immunity to an entity who had taken all appropriate steps to implement a safe pursuit policy and continually educate its officers on its policy if that entity had a single instance of missing paperwork.”).

The Supreme Court explained further that the when the Legislature amended Section 17004.7 in 2005, the goal was to improve public safety by encouraging public entities to promulgate a pursuit policy and provide training pursuant to that policy. Securing immunity was intended as the incentive for public entities to adopt the policy and provide the training. We argued in our amicus brief that denying immunity absent 100% officer compliance with the written certification requirement would make it nearly impossible for an agency to ever qualify for that immunity, thereby frustrating the statutory scheme and underlying public policy of the statute. Here, the Supreme Court found that it would be “very difficult for a public entity like the City to achieve immunity, and almost impossible for a large entity employing thousands of peace officers.” The Court explained “that interpretation would greatly reduce the incentive for public entities, especially large ones, to promulgate the policy and provide the training, something we doubt the Legislature intended.”

The California Supreme Court thus agreed with the Court of Appeal that “a public agency’s pursuit policy must contain the written certification requirement, but the agency does not have to prove total compliance with that requirement as a condition of obtaining immunity under Section 17004.7. A requirement may exist even if not every peace officer complies with it.” The Court added that it did not need to specify here when a lack of compliance with the written certification requirement or meaningful implementation of the pursuit policy might indicate an agency’s failure to meet the statute’s requirements. The Court explained that this issue was beyond the scope of the issue presented for the Court’s review.

The Court accordingly affirmed the Court of Appeal’s decision here upholding immunity for the City, and also disapproved the Morgan decision to the extent that it was inconsistent with the Court’s opinion.

For a more detailed discussion of this case, please see Client Alert Vol. 33, No. 25, available at www.jones-mayer.com 

  1. California Supreme Court Upholds Public Agency Pursuit Immunity Accorded by California Vehicle Code section 17004.7.

People v. Corder, 2018 Cal. App. LEXIS 758 (3rd Dist. Aug. 23, 2018)

Facts: In February 2016, defendant Danny Jerry Corder was at codefendant and girlfriend Annette Payne’s 30-acre family property in Portola. Corder often stayed on the property with Payne there. Three Plumas County Deputy Sheriffs entered the property to conduct a probation search on Payne. The deputies were in uniform and arrived in two marked vehicles, parking at a distance from the Payne residence. As the deputies walked up the driveway, Corder started the engine of his pickup truck. A deputy used his flashlight at the truck and saw Corder, and then shone the light on himself to reveal to Corder that he was a police officer. Corder drove straight at the deputies, but the deputies jumped or ran to avoid being hit.

The deputies got in their vehicles, turned on the emergency lights and flashers and pursued Corder in their vehicles at unsafe speeds in rough terrain. Though Corder stopped temporarily, Corder refused to obey the deputies’ instructions to stop and put his hands in the air and then drove off again. The deputies again pursued Corder. He eventually stopped back at the house. At the house, the deputies eventually subdued a violently resisting Corder. Corder injured a deputy during the process.

After a jury trial, Corder was convicted of, among other things, one count of felony evading a peace officer while driving in a reckless manner. The trial court imposed a 12-year state prison term. Corder appealed.

Held: On appeal, Corder argued that he could not be convicted of felony evasion for driving that took place only on private roads, due to language in Vehicle Code section 21107.7 (a). The Section’s relevant portion here says: “…there are privately owned and maintained roads not generally held open for use of the public for purposes of vehicular travel but, by reason of their proximity to or connection with highways, the interests of any residents residing along the roads and the motoring public will best be served by application of the provisions of this code to those roads.” Section 21107.7(a) describes several other conditions related to private roads.

Corder argued for an interpretation of “application of the provisions of this code to those roads” to mean that the crime of felony evasion, which was defined in the Vehicle Code, was one such applicable code provision. This, according to Corder, in turn meant that felony evasion only applied to either public roads, or private roads subject to the Vehicle Code through Section 21107.7. This, Corder claimed, excluded the evasion and pursuit he engaged in because it was on private property, requiring the reversal of his felony evasion conviction.

The Third District Court of Appeal disagreed. It explained that the Legislature enacted Section 21107.7 “with the intent of creating a mechanism whereby the rules of the road could be applied to private roads.” Analyzing the legislative history of the Vehicle Code for this section, the Court explained that “[t]here is no statute generally limiting the Vehicle Code to public roads, and [S]ection 21107.7 did not create one.” The Court noted that felony evasion’s statutory definition in the Vehicle Code excluded any reference to restricting the crime to driving on public roads, though it included several conditions that all applied directly to the facts of Corder’s evasion and pursuit.[35] The Court found the “crime of evading an officer is not part of the rules of the road and is not limited to driving on highways.” It could be committed on a private road or on private land, like it was here. The Court accordingly affirmed Corder’s conviction.

[1] 43 Cal.4th 885 (2008).

[2] However, the Court noted in agreement with Yount that an officer’s use of excessive force subsequent to a completed section 148(a)(1) offense could still provide a basis for defendant’s claim under federal or state law, if the defendant could show that the claim would not necessarily invalidate the section 148(a)(1) conviction.

[3] 373 U.S. 83 (1963).

[4] 405 U.S. 150 (1972).

[5] Turner v. United States, 137 S. Ct. 1885 (2017) (citations omitted).

[6] Tennison v. City & Cty. of San Francisco, 570 F.3d 1078, 1087, 1089 (9th Cir. 2009).

[7] Kyles v. Whitley, 514 U.S. 419, 435 (1995).

[8] Silva v. Brown, 416 F.3d 980, 987 (9th Cir. 2005).

[9] Arizona v. Fulminante, 499 U.S. 279, 296 (1991).

[10] 798 F.3d 1210 (9th Cir. 2015).

[11] 567 F.2d 885 (9th Cir. 1978) (per curiam).

[12] 514 U.S. 419 (1995).

[13]  743 F.3d 881, 884-85 (3rd Cir. 2014).

[14] For more details on Byrd, see our case discussion in Client Alert Vol. 33 No. 13.

[15] Or 10% for amendments to a combined city and county charter.

[16] Elec. Code, section 9255, former subd. (a)(2)-(4).

[17] Yamaha Corp. of America v. State Bd. of Equalization, 19 Cal.4th 1 (1998).

[18] “The findings of the board with respect to questions of fact, including ultimate facts, if supported by substantial evidence on the record considered as a whole, shall be conclusive.”

[19] Banning Teachers Assn. v. Public Employment Relations Bd., 44 Cal.3d 799, 804 (1988).

[20] County of Los Angeles v. Los Angeles County Employee Relations Com., 56 Cal.4th 905, 922 (2013).

[21] 36 Cal.3d 591 (1984).

[22] Fox v. Ethicon Endo-Surgery, Inc., 35 Cal.4th 797 (2005).

[23] Gov. Code section 911.2(a); which says among other things that a government claim for injury must shall be presented as provided in Article 2 (commencing with Section 915) not later than six months after the accrual of the cause of action.

[24] Cal. Penal Code section 32000(a).

[25] The Fourteenth Amendment’s Due Process Clause extends the application of the Second Amendment to states.

[26] 554 U.S. 570 (2008).

[27] Fyock v. Sunnyvale, 779 F.3d 991, 998 (9th Cir. 2015).

[28] 614 F.3d 85 (3rd Cir. 2010).

[29] City of Cleburne v. Cleburne Living Ctr., 473 U.S. 432, 439 (1985).

[30] Ibid., 473 U.S. at 440.

[31] U.S. Department of Agriculture v. Moreno, 413 U.S. 528, 534 (1973).

[32] 312 F.3d 1052 (9th Cir. 2002), abrogated on other grounds by District of Columbia v. Heller, 554 U.S. 570 (2008).

[33] Kolbe v. Hogan, 849 F.3d 114, 120 (4th Cir. 2017) (en banc).

[34] 246 Cal.App.4th 144 (4th Dist. 2016).

[35] Section 2800.1, subdivision (a) states in part: “Any person who, while operating a motor vehicle and with the intent to evade, willfully flees or otherwise attempts to elude a pursuing peace officer’s motor vehicle, is guilty of a misdemeanor punishable by imprisonment in a county jail for not more than one year if all of the following conditions exist: [¶] (1) The peace officer’s motor vehicle is exhibiting at least one lighted red lamp visible from the front and the person either sees or reasonably should have seen the lamp. [¶] (2) The peace officer’s motor vehicle is sounding a siren as may be reasonably necessary. [¶] (3) The peace officer’s motor vehicle is distinctively marked. [¶] (4) The peace officer’s motor vehicle is operated by a peace officer …and that peace officer is wearing a distinctive uniform.”





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