Courtesy of James R. Touchstone, Esq.

CONSTITUTIONAL LAW

1. People v. Ray’s finding of community caretaking exception in absence of exigency is disapproved.

People v. Ovieda, 7 Cal. 5th 1034 (2019)

Facts: In June 2015, five Santa Barbara police officers, responding to a report by family members of Willie Ovieda reported that Ovieda was suicidal and had access to a gun, arrived outside of Ovieda’s Santa Barbara home. They learned Ovieda was inside with two friends, Trevor Case and his wife, Amber Woellert. Ovieda’s family was not at the scene and his roommate was out of town. Officers were able to contact Case, who came out to speak with them. He said that Ovieda had threatened to commit suicide, had attempted suicide before, and had tried to grab several firearms in his bedroom. Case and Woellert had physically restrained Ovieda to keep him from killing himself. While Woellert restrained Ovieda, Case collected a handgun, two rifles, and ammunition and removed them to the garage. Case was very emotional and so concerned about Ovieda that he had alerted Ovieda’s family members, prompting their call to police.

After talking with the officers, Case called Woellert inside the home, and she came out with Ovieda. Officers searched and handcuffed Ovieda. Ovieda denied having made suicidal comments or that he had any firearms. The officers were told that Ovieda’s roommate was in Washington State. On cross-examination, Officer Corbett acknowledged that Case had said the guns had been taken away from Ovieda and that only Case, Woellert, and Ovieda had been in the house. Corbett had no information anyone else was inside, and Officer Garcia testified to the same.

Nevertheless, Officer Corbett testified that the officers “felt duty bound to secure the premises and make sure there were no people inside that were injured or in need of assistance.” Collectively, the officers decided to enter the home and conduct a protective sweep. The officers never obtained a search warrant during the subsequent entry, sweep and searches. After entry during the officers’ sweep of the house, the officers detected a strong smell of marijuana and observed ammunition and items relating to marijuana cultivation. Ultimately, large quantities of guns, ammunition, and drug-producing equipment were removed from the house and garage. The recovered weaponry included a submachine gun and a rifle with a long-range scope.

Ovieda was charged with manufacturing a controlled substance, importing an assault weapon, and possessing a silencer and short-barreled rifle. Ovieda moved to suppress the evidence found in his home. At the suppression hearing, neither Officer Corbett nor Officer Garcia testified that they had asked Ovieda’s consent to enter or that they questioned the veracity of Case and Woellert. They mentioned no noise or movement in the house or garage indicating that others might be inside or that anything was wrong inside. They were not asked what, if anything, they intended to do with Ovieda or whether he would have been allowed to return to the residence. They did not rely on that possibility to justify the need for the protective sweep.

The trial court denied the motion, finding that the community caretaker exception to the exclusion rule applied. After pleading guilty to the manufacturing count and to possession of an assault weapon, Ovieda was placed on probation. Ovieda appealed his conviction, claiming his Fourth Amendment rights were violated when the officers searched his residence. A divided Court of Appeal upheld the search under the community caretaking exception set forth in People v. Ray, 21 Cal.4th 464 (1999).

Held: The California Supreme Court first conveyed the relevant legal framework encompassing the issues on appeal. Both the federal and state Constitutions prohibit unreasonable searches and seizures. (U.S. Const., 4th Amend.; Cal. Const., art. I, section 13.) “In California, issues relating to the suppression of evidence derived from governmental searches and seizures are reviewed under federal constitutional standards.” (People v. Troyer (2011) 51 Cal.4th 599, 605.) “‘[T]he ultimate touchstone of the Fourth Amendment is ‘reasonableness.’”[1] “[T]he ‘physical entry of the home is the chief evil against which the wording of the Fourth Amendment is directed.’”[2] “[I]t is a cardinal principle that ‘searches conducted outside the judicial process, without prior approval by judge or magistrate, are per se unreasonable under the Fourth Amendment—subject only to a few specifically established and well-delineated exceptions.’” (Mincey v. Arizona (1978) 437 U.S. 385, 390; see Riley, at p. 382.)

“‘A long-recognized exception to the warrant requirement exists when ‘exigent circumstances’ make necessary the conduct of a warrantless search.’”[3] The high court has recognized that exigent circumstances may exist where there is probable cause to believe a crime has been committed but “an emergency leaves police insufficient time to seek a warrant.” (Birchfield v. North Dakota (2016) 136 S.Ct. 2160, 2173.) It has also found exigency when an entry or search appears reasonably necessary to render emergency aid, whether or not a crime might be involved. “[T]he Fourth Amendment does not bar police officers from making warrantless entries and searches when they reasonably believe that a person within is in need of immediate aid. … ‘The need to protect or preserve life or avoid serious injury is justification for what would be otherwise illegal absent an exigency or emergency.’ [Citation.] And the police may seize any evidence that is in plain view during the course of their legitimate emergency activities.” (Mincey, supra, 437 U.S. at pp. 392–393, fns. omitted.) “Accordingly, law enforcement officers may enter a home without a warrant to render emergency assistance to an injured occupant or to protect an occupant from imminent injury.” (Brigham City v. Stuart (2006) 547 U.S. 398, 403.)

Was the initial entry of the officers lawful? The Fourth Amendment’s reasonableness inquiry was critical to answering this question. The Court explained that “‘[a]s a general rule, the reasonableness of an officer’s conduct is dependent upon the existence of facts available to him at the moment of the search or seizure which would warrant a man of reasonable caution in the belief that the action taken was appropriate. [Citation.] And in determining whether the officer acted reasonably, due weight must be given not to his unparticularized suspicions or “hunches,” but to the reasonable inferences which he is entitled to draw from the facts in the light of his experience; in other words, he must be able to point to specific and articulable facts from which he concluded that his action was necessary.’”[4] Here, the Court found no facts describing exigent circumstances since, among other things, no one else was known by the officers to be inside and Ovieda was handcuffed and under control before the officers’ entry.

The lower courts in their decisions relied on the lead opinion of the California Supreme Court’s 1999 decision in People v. Ray. In Ray, the lead opinion of the California Supreme Court had recognized a “community caretaking” exception to the warrant requirement for government entry into a private residence where “circumstances short of a perceived emergency may justify a warrantless entry…” (Ray, supra, 21 Cal.4th at p. 473 (lead opn. of Brown, J.), italics added.) The lead opinion asserted that although the facts did not provide with “established exigent circumstances or the apparent need to render emergency aid, [the facts] warranted further inquiry to resolve the possibility someone inside required assistance or property needed protection.” (Ray, supra, 21 Cal.4th at p. 478 (lead opn. of Brown, J.).)

The Supreme Court here explained that the Ray lead opinion’s suggestion that an entry was justified to explore the possibility that someone inside needed immediate aid or that a crime was ongoing diluted the appropriate standard for exigency. The Court explained that although police do not “need ‘ironclad proof of “a likely serious, life-threatening” injury to invoke the emergency aid exception,’”^[5] officers must possess “an objectively reasonable basis for believing that an occupant was seriously injured or threatened with such injury.”^[6] The California Supreme Court also noted that the United States Supreme Court had never applied the concept of a community caretaking search outside the context of an automobile inventory, which was not the context here.

The Supreme Court concluded that the objective facts that elevate speculation to reasonable suspicion were not present or were not articulated at Ovieda’s suppression hearing for the Santa Barbara police officers to enter Ovieda’s home.

The Court held that the community caretaking exception asserted in the absence of exigency is not one of the carefully delineated exceptions to the residential warrant requirement recognized by the United StatesSupreme Court. The California Supreme Court disapproved the lead opinion in Ray to the extent that it conflicted with the decision here. Accordingly, the California Supreme Court reversed, and remanded with directions that the case be returned to the trial court to permit Ovieda to withdraw his guilty plea and the court enter an order granting his suppression motion.

For a more detailed discussion of this case, please see Client Alert Vol. 34, No. 32, available at www.jones-mayer.com.

• The Supreme Court has not made Riley v. California, which held that a warrant is generally required to search a cell phone’s data, retroactive.

Young v. Pfeiffer, 2019 U.S. App. LEXIS 23923 (9th Cir. Aug. 12, 2019)

Facts: In 2006, a California jury convicted Howard Allen Young of second-degree burglary, grand theft, and selling stolen property, with enhancements. He was sentenced to state prison for thirty years and eight months. The California Court of Appeal affirmed his conviction and the California Supreme Court denied his petition for review.

Young later challenged his conviction with a 28 U.S.C. section 2254 petition for writ of habeas corpus, which was denied by a federal District Court on the merits. Young filed several applications in subsequent years for authorization to file a second or successive Section 2254 petition. Most recently, he filed a motion to reconsider the denial of his application, which the Ninth Circuit deemed another application for authorization. Young asserted that his conviction was unconstitutional because there was an unreasonable search of his cell phone based on Riley v. California, 573 U.S. 373 (2014), which held that a warrant is “generally required” to search a cell phone’s data.573 U.S. at 401. Young argued that Riley announced a “new rule of constitutional law, made retroactive to cases on collateralreview by the Supreme Court, that was previously unavailable.” 28 U.S.C. section 2244(b)(2)(A).

The Ninth Circuit Court of Appeals requested that Young address whether the Supreme Court’s decision in Riley meets Section 2244(b)(2)(A)’s requirements for authorization of a second or successive petition.

Held: The Ninth Circuit Court of Appeals explained that a federal court may authorize the filing of a second or successive Section 2254 habeas petition if the application makes a prima facie showing that “the claim relies on a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court, that was previously unavailable.” 28 U.S.C. sections 2244(b)(2)(A), (b)(3)(C). Under Section 2244(b)(2)(A), “the Supreme Court is the only entity that can ‘ma[k]e’ a new rule retroactive.” Tyler v. Cain, 533 U.S. 656, 663 (2001).

Here, the Ninth Circuit found that Young did not demonstrate that the Supreme Court made Riley retroactive. The Court added that Riley itself did not hold that it was retroactive, 573 U.S. at 386. Thus, Young had failed to make a prima facie showing that his application to file a second or successive Section 2254 petition met the requirements of Section 2244(b)(2)(A). Accordingly, the Court denied his application.

• Defendant’s ‘unprovoked headlong flight’ in high crime area upon seeing police did not provide legal cause for investigatory detention.

People v. Flores, 2019 Cal. App. LEXIS 740 (4th Dist. Aug. 12, 2019)

Facts: A seven-member team of Huntington Beach police officers went one October day in the early afternoon to an alleyway in a residential area claimed by the “LTK” street gang as part of a “continuing … investigation” into LTK, to “identify[] and contact[]” individuals regarding recent criminal activity, and to ascertain possible gang membership or association of those in the area. There had been multiple complaints regarding gang activity in the area, including “several shootings … over the past several months,” and “drug sales … in the alley.” There were no reports of a specific crime or of gang activity this day and time.

Officers came up with a plan to approach the members of LTK on both sides because “we knew as soon as they see police cars they run.” The team approached on foot from opposite ends with a goal to “hopefully detain them before they run.” Stationed adjacent to one end of the alley, Officers Oscar Garcia and Daniel Quidort saw “people … running from the alley” toward them, including defendant Antonino Flores, who Garcia recognized from “prior contacts dealing with the LTK gang.” The officer said he suspected Flores “might be involved in criminal activity, past, present, or taking place at that time.” Such activity could be “[e]ither gang activity or drug sales because of the complaints we had received” “within days, weeks, months.” However, there was no evidence of criminal activity then taking place.

On cross-examination, Officer Garcia explained. Flores was singled out because “we focused on [him] as he was coming towards us and we were already detaining him.” He was also “the closest one we could get.” Officer Quidort said Flores slowed to a “brisk walk,” and then to a “quick pace” coming toward the officers. Flores complied with Officer Quidort’s directive to sit down on a sidewalk step. There was no evidence Flores was patted down for weapons. He was not handcuffed or placed under arrest, and the officers did not have their weapons drawn.

Officer Quidort notice a package bulging in Flores’s sock, and Flores admitted it was methamphetamine, handing the package over to Quidort. Quidort recognized the package, which contained four bindles of approximately equal weight, as methamphetamine packaged for sale. The officers conducted subsequent search at Flores’ apartment home, although Flores did not give consent to entry or any subsequent search inside. More drugs were found inside Flores’s bedroom there.

Flores was arrested for possession of a controlled substance with the intent to sell. He was transported to jail, where, after being informed him of his Miranda[7] rights, he made additional incriminating statements. After Flores’s motion to suppress was partially denied, he pled guilty to one count of possession for sale of methamphetamine. Flores appealed.

Held: The California Fourth District Court of Appeal explained that “[a]n investigative detention is legally justified ‘when the detaining officer can point to specific articulable facts that, considered in light of the totality of the circumstances, provide some objective manifestation that the person detained may be involved in criminal activity.’” (People v. Souza (1994) 9 Cal.4th 224, 231.) Moreover, “the detaining officers must have a particularized and objective basis for suspecting the particular person stopped of criminal activity.” (United States v. Cortez (1981) 449 U.S. 411, 417–418, italics added; see United States v. Arvizu (2002) 534 U.S. 266, 273 [“‘stop must be justified by some objective manifestation that the person stopped is, or is about to be, engaged in criminal activity’”].) The Fourth District observed that the totality of the circumstances “must provide articulable and objective grounds to suspect the person of criminal activity, not simply of belonging to a certain group; without more, it is not a crime to associate with a criminal street gang.”

“The guiding principle, as in all issues arising under the Fourth Amendment and under the California Constitution [citations], is ‘the reasonableness in all the circumstances of the particular governmental invasionof a citizen’s personal security.’”[8] The Court explained that it is well-established “the Fourth Amendment requires ‘“some minimal level of objective justification’“ for a detention.[9] “Although an officer’s reliance on a mere ‘hunch’ is insufficient to justify a

[detention]

[citation], the likelihood of criminal activity need not rise to the level required for probable cause, and it falls considerably short of satisfying a preponderance of the evidence standard [citation].” (Arvizu, supra, 534 U.S. at p. 274.)

Thus, a reasonable suspicion justifying a detention is “simply … ‘a particularized and objective basis’ for suspecting the person stopped of criminal activity.” (Ornelas v. United States (1996) 517 U.S. 690, 696.) So long as the facts known to the officer reasonably cause him or her to suspect the person he or she intends to detain might be or has been involved in criminal activity, the detention is lawful.[10]

“To legally detain an individual because of ‘suspicious circumstances,’ the prosecution must establish on the record that at the moment of the detention, there were specific and articulable facts, which reasonably caused officers to believe that (1) some activity out of the ordinary had taken place or was occurring or about to occur; (2) the activity was related to crime; and (3) the individual under suspicion was connected to the activity. [Citation.]” (People v. Bower (1979) 24 Cal.3d 638, 644, superseded by statute on other grounds

The Court found the officers’ initial detention of Flores was not supported by a reasonable suspicion of criminal activity. Officer Garcia testified he suspected Flores was involved with “[e]ither gang activity or drug sales because of the complaints we had received,” but he provided no other specifics, including nothing pointing to Flores. Asked how recent these “complaints” were, Garcia replied, “Constantly, within days, weeks, months.” He did not articulate any specific “complaint” of criminalactivity involving or connected to defendant individually, even though he recognized Flores as he approached.

On appeal, the People’s sole justification for Flores’s initial detention was based on his flight from officers at one end of the “high-crime area” alleyway towards Garcia and Quidort at the other end. Relying on Illinois v. Wardlow (2000) 528 U.S. 119, the People contended Flores’s “unprovoked headlong flight” in a high crime area upon seeing police provided legal cause for an investigatory detention.

The Fourth District explained that the United States Supreme Court has never endorsed a per se rule that flight establishes reasonable suspicion to detain. Instead, flight is but one relevant factor in the reasonable suspicion analysis. The Fourth District added that the high court also has a long history of recognizing that innocent people may reasonably flee from police.[11]

The Fourth District observed that in People v. Souza, the California Supreme Court explicitly rejected the argument that flight alone was sufficient to justify a detention. Rather, flight is probative “only in those instances in which there is other indication of criminality, such as evidence that the defendant fled from a crime scene or after being accused of a crime.” (Souza, supra, 9 Cal.4th at pp. 235–236.) Likewise, “[a]n individual’s presence in an area of expected criminal activity, standing alone, is notenough to support a reasonable, particularized suspicion that the person is committing a crime.” (Wardlow, supra,528 U.S. at p. 124.) Thus, like flight, presence in a “high crime area” is merely probative, and not sufficient on its own to justify a detention.

In Wardlow, officers converged at 3:00 a.m. on a Chicago area known, not just as a “high crime area,” but for “heavy narcotics trafficking.” An officer spotted the defendant holding an opaque bag. The defendant looked in the direction of the officers and fled before officers caught up to him and detained him. Their subsequent pat downsearch revealed a firearm in the defendant’s bag. The detention was later upheld.

Here, however, Garcia and the other officers arrived during the daytime, Flores came in the direction of the officers walking, and he was not holding a bag. The Fourth District observed that “the key difference between Wardlow and the present case is that when the defendant in Wardlow, was first seen, he was standing … holding an opaque bag in this heavy narcotics trafficking area. Possession of a bag is a specific and articulable fact that can support a reasonable suspicion of a crime afoot.” (See People v. Lilienthal (1978) 22 Cal.3d 891, 898–899 [“Reasonable grounds for believing a package contains contraband may be adequately afforded by the package’s shape, design, and the manner in which it is carried”]; cf. Henry v. United States (1959) 361 U.S. 98, 104 [police must have reasonable grounds to believe a package contains contraband and its “shape and design might at times be adequate”].) In contrast, here Flores was not seen holding anything; his contraband was inside his sock.

Another difference in the two cases was the respective defendants’ movements. Addressing Flores’s movement, the Court explained: “Whatever else it may mean, ‘unprovokedheadlong flight’ is not a ‘brisk walk,’ or a ‘quick pace’ towards police officers,” as Flores moved here prior to the order to sit on the sidewalk step. The Court further explained that even if Flores’s behavior could be characterized as “flight,” this was not the “headlong flight” described in Wardlow. Moreover, although Flores’s “flight” in a high crime area might have suggested wrongdoing, it did not corroborate any reliable or articulable suspicion of actual criminal behavior.

The Fourth District Court of Appeal thus determined that Wardlow failed to provide the People with the necessary support needed to justify Flores’s initial seizure. Consequently, the People failed to meet their burden to show specific, articulable grounds to justify detaining Flores. The Court concluded that the evidence obtained immediately followinghis detention was unlawfully obtained and should have been suppressed. The Court also found that Flores’s subsequent stationhouse statements were tainted by both his unlawful detention and the unlawful search of his bedroom. Accordingly, the Fourth District Court of Appeal reversed and remanded with directions to grant Flores’s motion to suppress in its entirety.

• Border search does not permit warrantless, suspicionless forensic search of defendant’s cell phone.

United States v. Cano, 2019 U.S. App. LEXIS 24457 (9th Cir. Aug. 16, 2019)

Facts: In the summer of 2016, Miguel Cano moved from Los Angeles to Tijuana, Mexico where he stayed with his cousin, Jose Medina. In July 2016, Cano arrived at the San Ysidro Port of Entry from Tijuana to cross into the United States. In primary inspection, Cano said he was living in Mexico but going to LA on that day. Pursuant to a random Customs and Border Protection (“CBP”) computer referral, Cano was referred to secondary inspection, where a narcotic-detecting dog alerted to the vehicle’s spare tire. A CBP official removed the spare tire from the undercarriageof the truck and discovered 14 vacuum-sealed packages inside, containing 14.03 kilograms (30.93 pounds) of cocaine.

Cano was arrested. CBP and Homeland Security Investigations (“HIS”) officials administratively seized his cell phone and searched it, first manually and then using Cellebrite software. A Cellebrite search enables the user to access text messages, contacts, call logs, media, and application data on a cell phone and to select which types of data to download. It does not, however, allow the user to access data stored within third-party applications. The manual search revealed no text messages and a lengthy call log. The Cellebrite results revealed that Cano had sent no text messages, and it listed all the calls made by Cano.

Cano was indicted for transporting cocaine. When Cano moved to suppress the evidence obtained from the warrantless searches of his cell phone, the District Court held that the searches were valid under the border search exception to the Fourth Amendment’s warrant requirement. Cano was convicted of importing cocaine. He appealed.

Held: The Ninth Circuit Court of Appeals explained that “searches conducted outside the judicial process, without prior approval by judge or magistrate, are per se unreasonable under the Fourth Amendment—subject only to a few specifically established and well-delineated exceptions.” Katz v. United States, 389 U.S. 347, 357 (1967). One of these “specifically established and well-delineated exceptions” is the border search exception. United States v. Ramsey, 431 U.S. 606, 616 (1977). “[B]order searches constitute a ‘historically recognized exception to the Fourth Amendment’s general principle that a warrant be obtained.’“ United States v. Cotterman, 709 F.3d 952, 957 (9th Cir. 2013) (en banc)(quoting United States v. Ramsey, 431 U.S. 606, 621 (1977)). Border searches typically do not require any particularized suspicion, so long as they are “routine inspections and searches of individuals or conveyances seeking to cross our borders.” Almeida-Sanchez v. United States, 413 U.S. 266, 272 (1973); see United States v. Seljan, 547 F.3d 993, 999 (9th Cir. 2008) (en banc). Such searches are “reasonable simply by virtue of the fact they occur at the border.” Ramsey, 431 U.S. at 616. The exception is “rooted in ‘the long-standing right of the sovereign to protect itself by stopping and examiningpersons and property crossing into this country,’“ Cotterman, 709 F.3d at 960 (quoting Ramsey, 431 U.S. at 616), to “prevent[] the entry of unwanted persons and effects,” id. (quoting United States v. Flores-Montano, 541 U.S. 149, 152 (2004)).

The Court observed, however, that a border search must be conducted “in enforcement of customs laws.” A border search must be conducted to “enforce importation laws,” and not for “general law enforcement purposes.” A general search cannot be “justif[ied] . . . on the mere basis that it occurred at the border.” United States v. Soto-Soto, 598 F.2d 545, 549 (9th Cir. 1979).

The Court explained that cell phones are subject to search at the border. This included the phones’ data because the Court reasoned that the United States has a strong interest in preventing the entry of digital contraband like child pornography which could be printed or shared electronically.

In Cotterman, the Ninth Circuit held that a routine, manual search of files on a laptop computer—”a quick look and unintrusive search”—is reasonable “even without particularized suspicion,” but that officials must “possess a particularized and objective basis for suspecting the person stopped of criminal activity” to engage in a forensic examination, which is “essentially a computer strip search.” Id. at 960-61, 966, 967. The Court found the same reasoning applied equally to cell phones, as it found no basis to distinguish a forensic cell phone search from a forensic laptop search.

Applying Cotterman, the Court held that manual cell phone searches may be conducted by border officials without reasonable suspicion but that forensic cell phone searches require reasonable suspicion. The Court clarified Cotterman by holding that “reasonable suspicion” in this context means that officials must reasonably suspect that the cell phone contains digital contraband. The Ninth Circuit also concluded that cell phone searches at the border, whether manual or forensic, must be limited in scope to whether the phone contains digital contraband; and that a broader search for evidence of a crime could not be justified by the purposes of the border search exception.

The Court of Appeals explained that to the extent that the search of the Cano’sphone went beyond a verification that the phone lacked digital contraband, the search exceeded the proper scope of a border search and was unreasonable under the Fourth Amendment. The Court held that although the agents had reason to suspect Cano’s phone would contain evidence leading to additional drugs, the record did not give rise to an objectively reasonable suspicion that the digital data in the phone itself contained contraband, and the border search exception therefore did not authorize the agents to conduct a warrantless forensic search of the phone. Accordingly, the Ninth Circuit reversed the District Court’s order denying Cano’s motion to suppress, and vacated his conviction.

• Under 42 U.S.C. section 1983, individual members of an Indian Tribe may seek relief for violations of federal law as individuals, not as a tribe.

United States v. Kazuyoshi Iwai, 2019 U.S. App. LEXIS 21899 (9th Cir. July 23, 2019)

Facts: Chelsea Lynn Bunim, Jasmine Sansoucie, Tommie Robert Ochoa, and Naomi Lopez are enrolled members of the Chemehuevi Tribe. In 2015, each was stopped and cited by a San Bernardino County Sheriff’s Deputy for violating a California regulatory traffic law. The vehicles of Bunim and Ochoa were impounded, leaving each alone on the roadside as a result of the citations. The four and the Chemehuevi Tribe sued the Sheriff and the Deputies under 42 U.S.C. section 1983, alleging violations of various federal statutory and constitutional rights. The District Court entered summary judgment in favor of the defendants, reasoning that Section 1983 “is concerned with the relationship between individuals and the state, not the distribution of power between state, federal, or tribal governments,” and therefore neither the “right to be free of state regulation” nor “the right to tribal government” is “within the scope of section 1983.”

Held: The Ninth Circuit Court of Appeals held that the individual plaintiffs, but not the Tribe, could challenge the citations under 42 U.S.C. section 1983. The Ninth Circuit accordingly reversed in part, vacating the District Court’s judgment dismissing the complaint as to the individuals, and affirmed the judgment as to the Tribe.

The Court explained that pursuant to Section 1983 any “person” may sue for the “deprivation of any rights, privileges, or immunities secured by the Constitution and laws.” Because Section 1983 “was designed to secure private rights against government encroachment,”[12] tribal members can use it to vindicate their “individual rights,” but not the tribe’s “communal rights.”[13] “[T]raditional section 1983 suit[s]”—for example, those challenging an arrest on tribal land—seek to vindicate an “individual right.”[14]

Here, the Ninth Circuit observed that each of the four individual tribe members was stopped and detained by a San Bernardino County Sheriff’s Deputy, and some had their vehicles impounded. The individual members contended that these actions violated the United States Constitution and federal statutes. The Court thus found the claims of the four individual members of the tribe were “traditional” Section 1983 suits. The Tribe, however, did not have a Section 1983 claim because an Indian tribe “may not sue under Section 1983 to vindicate” a “sovereign right,” such as its right to be free of state regulation and control.[15] Nor could the Tribe assert its members’ individual rights as parens patriae in a Section 1983 action because the Tribe could not “articulate an interest apart from the interests of particular private parties.” Missouri ex rel. Koster v. Harris, 847 F.3d 646, 651 (9th Cir. 2017).

• Where the record shows that the medically necessary treatment for a prisoner’s gender dysphoria is gender confirmation surgery, and responsible prison officials denied such treatment with full awareness of the prisoner’s suffering, those officials violate the Eighth Amendment’s prohibition on cruel and unusual punishment.

Edmo v. Corizon, Inc., 2019 U.S. App. LEXIS 25330 (9th Cir. Aug. 23, 2019)

Facts: Adree Edmo is a male-to-female transgender prisoner in the custody of the Idaho Department of Correction (“IDOC”). Edmo’s sex assigned at birth (male) differs from her gender identity (female); i.e., Edmo identifies as female. This discrepancy causes Edmo to experience persistent distress so severe it inhibits her ability to function. She twice attempted self-castration to remove her male genitalia, which causes her profound anguish. Both sides to this case and their medical experts agreed that Edmo suffers from gender dysphoria, an undisputedly serious medical condition. Edmo filed a complaint in September 2017 asserting Eighth Amendment claims against IDOC seeking an order requiring the State to provide her with gender confirmation surgery (“GCS”).

The District Court concluded that Edmo suffers from gender dysphoria and that GCS is medically necessary for Edmo. The District Court’s ruling hinged on findings individual to Edmo’s medical condition. The ruling also rested on the finding that Edmo’s medical experts testified persuasively that GCS was medically necessary, whereas testimony from the State’s medical experts (who lacked relevant experience and deviated from generally accepted guidelines) deserved little weight. The court explained that the State was deliberately indifferent to Edmo’s gender dysphoria because it “fail[ed] to provide her with available treatment that is generally accepted in the field as safe and effective, despite her actual harm and ongoing risk of future harm including self-castration attempts, cutting, and suicidal ideation.” The court also stated that the evidence “suggest[ed] that Ms. Edmo has not been provided gender confirmation surgery because Corizon and IDOC have a de facto policy or practice of refusing this treatment for gender dysphoria to prisoners,” which amounts to deliberate indifference.

The District Court found that, given Edmo’s continuing emotional distress and self-castrationattempts, “Edmo is at serious risk of life-threatening self-harm” if she does not receive GCS. The District Court ordered the State to provide GCS to Edmo.

Held: The Eighth Amendment prohibits “cruel and unusual punishments.” U.S. Const. amend. VIII. The Ninth Circuit Court of Appeals explained that for more than 40 years the Supreme Court has held that “deliberate indifference to serious medical needs” of prisoners constitutes cruel and unusual punishment. Estelle v. Gamble, 429 U.S. 97, 106 (1976).

To “show deliberate indifference, the plaintiff must show that the course of treatment the

[official]

chose was medically unacceptable under the circumstances and that the [official] chose this course in conscious disregard of an excessive risk to the plaintiff’s health.” Hamby v. Hammond, 821 F.3d 1085, 1092 (9th Cir. 2016) (quoting Snow v. McDaniel, 681 F.3d 978, 988 (9th Cir. 2012), overruled in part on other grounds by Peralta v. Dillard, 744 F.3d 1076 (9th Cir. 2014) (en banc)).

While the State did not seriously dispute that in certain circumstances, GCS can be a medically necessary treatment for gender dysphoria, the State disagreed that GCS is medically necessary for Edmo or that the State exhibited deliberate indifference.

The Ninth Circuit concluded that the District Court permissibly credited the opinions of Edmo’s experts that GCS is medically necessary to treat Edmo’s gender dysphoria and that the State’s failure to provide that treatment is medically unacceptable. The Ninth Circuit explained that Edmo’s experts were well-qualified to render such opinions, and they logically and persuasively explained the necessity of GCS and applied the WPATH Standards of Care—the undisputed starting point in determining the appropriate treatmentfor gender dysphoric individuals. Moreover, the District Court permissibly discredited the contrary opinions of the State’s treating physician and medical experts because those individuals lacked expertise and incredibly applied (or did not apply, in the case of the State’s treating physician) the WPATH Standards of Care. Thus, the Ninth Circuit found the District Court did not clearly err in making its credibility determinations and that the credited testimony established that GCS is medically necessary for Edmo. The Court of Appeal thus held that the responsible prison authorities, despite full knowledge of Edmo’s ongoing and extreme suffering and medical needs, had been deliberately indifferent to Edmo’s gender dysphoria, in violation of the Eighth Amendment. The Court emphasized that the analysis here was individual to Edmo and rested on the record specific to this case. The Court did not “endeavor to project whether individuals in other cases will meet the threshold to establish an Eighth Amendment violation.”

Accordingly, the Court affirmed the District Court’s order entering injunctive relief for Edmo.

QUALIFIED IMMUNITY

Because no analogous case existed at the time, District Court erred by denying officer qualified immunity on plaintiffs’ Fourth Amendment substantive due process claim.

Nicholson v. City of L.A., 2019 U.S. App. LEXIS 24902 (9th Cir. Aug. 21, 2019)

Facts: Four teenagers met in an alleyway near their school to listen to and sing rap music one morning in February 2015. Michael Sanders, Abdul Wooten, J.N.G., and J.H. stood in a tight circle dancing and rapping before the start of their school day, as they had regularly done before. Sanders was holding a plastic Airsoft replica gun with a bright orange tip as a prop. About this time, Los Angeles Police Department Officer Michael Gutierrez was in the passenger seat of an unmarked vehicle as his partner officer drove by. Neither officer was in uniform.

Gutierrez spotted Sanders and mistook Sanders’s replica gun for an actual gun. As his partner stopped the car, Gutierrez immediately jumped out of the car and ran into the alley. Just as the four teenagers turned off the music and were getting ready to head to school, J.N.G. was shot by Officer Gutierrez. Gutierrez fired multiple shots, one of which hit J.N.G. in the back. After the shooting, other officers detained the group for over five hours while they investigated. J.H. remained in handcuffs throughout the investigation, which lasted over five hours after the shooting. J.N.G. also remained in handcuffs for over five hours, including through the duration of his hospital examination, until detectives interrogated him.[16]

J.N.G. and J.H. (collectively, “Plaintiffs”) filed a lawsuit against the officers, the LAPD, and the City of Los Angeles, alleging violations of the Fourth and Fourteenth Amendments and various state laws. The District Court denied Gutierrez qualified immunity in part on Plaintiffs’ Fourth Amendment claim and on Plaintiffs’ Fourteenth Amendment claim. Gutierrez appealed.

Held: The Ninth Circuit Court of Appeals initially observed that “[i]t is well-established that a ‘person may not be arrested, or must be released from arrest, if previously established probable cause has dissipated.’ United States v. Ortiz-Hernandez, 427 F.3d 567, 574 (9th Cir. 2005) (per curiam). ‘As a corollary . . . of the rule that the police may rely on the totality of facts available to them in establishing probable cause, they also may not disregard facts tending to dissipate probable cause.’ Id. (quoting Bigford v. Taylor, 834 F.2d 1213, 1218 (5th Cir. 1988)). A reasonable officer would know that participation in an ongoing seizure after any probable cause had dissipated violates the Fourth Amendment.”

The Ninth Circuit found that under the circumstances, Plaintiffs’ continued detention for five hours after the shooting—well after any probable cause would have dissipated—and the use of handcuffs throughout the duration of the detention violated Plaintiffs’ clearly established Fourth Amendment rights to be free from unlawful arrest and excessive force. It soon became apparent to the officers that the teenagers were unarmed, did not pose a threat, and were not engaging in any crimes; they had their school uniforms and backpacks, were near a school, and it was before school hours.

The Court of Appeals rejected Gutierrez’s argument that while he participated in the initial handcuffing and detention, he was not responsible for any subsequent constitutional violation because he played no role in that conduct. The Court held that an officer can be held liable where he is just one participant in a sequence of events that gives rise to a constitutional violation. Here, viewing the evidence in the light most favorable to plaintiffs, Gutierrez was more than a “mere bystander”[17] in the alleged constitutional violations. The Court affirmed the District Court’s denial of qualified immunity on the Fourth Amendment violations because, ultimately, a reasonable jury could conclude that Gutierrez played an integral role in the unlawfully prolonged detention and sustained handcuffing of plaintiffs.

Addressing the Fourteenth Amendment substantive due process claim, the Court held that, viewing the totality of the evidence in the light most favorable to Plaintiffs, the shooting violated Plaintiffs’ due process rights. Under the circumstances, a rational finder of fact could find that Officer Gutierrez’s use of deadly force shocked the conscience[18] and was unconstitutional under the Fourteenth Amendment. Nevertheless, the Court held that because no analogous case existed at the time of the shooting, the District Court erred by denying Gutierrez qualified immunity for this claim. Because no binding circuit or Supreme Court precedent has established a substantive due process violation under comparable circumstances, the Fourteenth Amendment right at issue lacked “contours . . . sufficiently definite” to place the issue “beyonddebate.”[19] The Ninth Circuit Court of Appeals accordingly reversed the District Court and remanded for an entry of qualified immunity on the Fourteenth Amendment claim.

MISCELLANEOUS

A. In matter concerning Penal Code sections pertaining to a person resisting an officer in the performance of duty, juvenile court’s comments did not constitute a clear misapplication of the law such that a reversal was required.

In re A.L., 38 Cal. App. 5th 15 (6th Dist. 2019)

Facts: Officers in full uniform and marked patrol cars responding to a report of a violent encounter found sixteen-year-old A.L. fighting with her sister on the ground. A.L. considered herself the victim. At first, she moved toward one of the officers displaying a bite mark on her arm while saying, “Take her to the fucking jail. Look, she bit me.” But then she started back toward her sister, who was still on the ground. The officer grabbed A.L.’s arm and told her, “I saw you kick her when she was down … [h]old on. Hold on. … Relax.” When A.L. pulled away, a second officer grabbed A.L.’s other arm. She screamed and dropped to the pavement, kicking at and scratching one of the officers with her fingernails. She then bit that officer on the arm. He punched A.L. twice in the head, turned her onto her stomach, and put her in handcuffs.

The District Attorney filed a juvenile wardship petition alleging that A.L. violated Penal Code sections 243(d) (battery causing serious bodily injury), 243(b) (battery on a peace officer), 69 (resisting a peace officer by force), and 148(a)(1) (resisting a peace officer). At the contested jurisdictional hearing, the prosecutor conceded there was insufficient evidence to sustain the battery with serious bodily injury count, but urged the remaining counts should be sustained. The prosecutor argued that the element of the resisting offenses requiring knowledge the officer was performing a duty had been proven—even if the court accepted A.L.’s position that she resisted because, as the victim of her sister’s attack, the officers had no right to detain her: “[T]hat seems to be the crux of her issue, is that she felt she didn’t have to comply with putting her arms behind her back and being handcuffed because she felt she wasn’t the actual perpetrator; that she was instead the victim and she was angry and she fought. And she doesn’t get to do that once the Court makes the determination that the police were actually within their rights to detain her, and in this particular case, they were.”

The juvenile court agreed, stating, “the law is real clear here. Whether you think the police have the right to detain you or stop you or hold onto you, the law in this state says you don’t get to resist. That’s just what the Penal Code says. There’s no way around it.” The court sustained the allegations that A.L. violated Penal Code sections 243(b), 69, and 148(a)(1). She was declared a ward of the court, returned to parental custody under supervision of a probation officer, and ordered to comply with various conditions recommended by the probation department, including 30 hours of community service. A.L. appealed, arguing that the juvenile court’s comments demonstrated that the juvenile court failed to consider her state of mind at the time she resisted, which is an element of each offense.

Held: The California Sixth District Court of Appeal initially addressed each of the three statutes in turn. The Court found that the juvenile court was correct that under Section 243(b), it made no difference whether A.L. believed the officers were performing their duty when they detained her; it was enough that a reasonable person would have believed they were. Section 148(a)(1) prohibits resisting an officer in the performance of duty, though the resistance need not be forceful or violent. The intent specified in the statute is that the perpetrator “willfully” resists, delays, or obstructs any peace officer in the discharge or attempt to discharge any duty. Section 69 applies when a person “knowingly” resists, by the use of force or violence, the officer, in the performance of his or her duty. The Court of Appeal agreed with A.L. that under the plain language of Sections 69 and 148(a)(1), the sections required proof of A.L.’s actual knowledge that an officer was engaged in the performance of a duty.

The Sixth District next determined whether the juvenile court’s comments at the disposition hearing showed a clear misapplication of the law, necessitating reversal.[20] The Court of Appeal found that the juvenile court’s statement that “whether you think the police have the right to detain you. you don’t get to resist,” did not on its face establish it applied the wrong legal standard. The Court of Appeal explained that the juvenile court may have been expressing a misunderstanding of the relevant law by indicating defendant’s state of mind did not matter. On the other hand, it may have been referring only to the Section 243(b), count, in which case the comments correctly described the law. The Sixth District concluded that on balance, the juvenile court’s comments were not so unambiguous as to require reversal, and therefore affirmed the juvenile court’s order.

B. Senate Bill 1391 promotes Proposition 57’s goal of juvenile rehabilitation by ensuring virtually all 14- and 15-year-olds who commit crimes will be processed through the juvenile justice system. Sen. Bill No. 1391 is constitutional and does not unconstitutionally amend Proposition 57.

People v. Superior Court (T.D.), 38 Cal. App. 5th 360 (5th Dist. 2019)

Facts: Proposition 57, The Public Safety and Rehabilitation Act of 2016, was enacted in 2016. Among other things, Proposition 57 eliminated a prosecutor’s ability to directly file charges in criminal (adult) court against minors who were 14 years of age or older at the time of their alleged offenses, and instead required prosecutors to obtain juvenile court approval to do so. In 2018, the California Legislature enacted Senate Bill No. 1391 (“SB 1391”), which prohibits the transfer of 14- and 15-year-old offenders to criminal court in virtually all circumstances.

In August 2010, T.D., then 14 years old, shot and killed someone during an attempted carjacking. The District Attorney of Stanislaus County directly filed charges against T.D. in criminal court as permitted by the law before Proposition 57’s enactment. The jury convicted T.D. of first degree murder during the commission of an attempted carjacking and attempted carjacking during which a principal personally and intentionally discharged a firearm, proximately causing death, and he was sentenced to a lengthy prison term.

While T.D.’s appeal was pending, Proposition 57 went intoeffect. The California Supreme Court held it applied retroactively to nonfinal cases (People v. Superior Court (Lara) (2018) 4 Cal.5th 299, 303–304), so the Fifth District Court of Appeal conditionally reversed the judgment and remanded the matter to Stanislaus County Superior Court with directions to, in pertinent part, conduct a juvenile transfer hearing and either (1) treat the convictions as juvenile adjudications, and impose an appropriate disposition, if it found it would not have transferred T.D. to a court of criminal jurisdiction; or (2) reinstate T.D.’s convictions and sentence if it found it would have transferred T.D. to a court of criminal jurisdiction because he was not a fit and proper subject to be dealt with under the juvenile court law. In August 2018, the District Attorney filed a motion to transfer T.D. to criminal court. The probation officer’s transfer report recommended that T.D.—who would be 23 years old at the time of the January 2019 hearing—be transferred to the jurisdiction of the adult criminal court.

On January 1, 2019, SB 1391 went into effect. The next day, T.D. asserted his right to a speedy disposition pursuant to pursuant to Welfare and Institutions Code section 702, arguing that based on his age at the time of the offenses, SB 1391 rendered him no longer subject to transfer to a court of criminal jurisdiction. The trial court concluded SB 1391 was constitutional and applied to T.D.’s case, and so confirmed a date for his dispositional hearing.

The District Attorney petitioned this court for a writ of mandate, arguing that SB 1391 constituted an unconstitutional amendment of Proposition 57, and that the lower court acted in excess of its jurisdiction in not holding a transfer hearing and effectively dismissing the transfer motion.

Held: The California Fifth District Court of Appeal explained that the juvenile court generally exercises delinquency jurisdiction over a minor who has violated the law while under the age of 18. (Juan G. v. Superior Court (2012) 209 Cal.App.4th 1480, 1487.) “Historically, a child could be tried in criminal court only after a judicial determination, before jeopardy attached, that he or she was unfit to be dealt with under juvenile court law.” (Juan G., at p. 1488.) The procedural requirements for fitness hearings have been established by Welfare and Institutions Code section 707. The Court found that SB 1391 constituted an amendment to Proposition 57 for purposes of article II, section 10, subdivision (c) of the state Constitution, because it removes the ability of prosecutors to seek transfer of 14- and 15-year-olds to criminal court.

The Fifth District noted that Section 5 of Proposition 57 provides: “This act shall be broadly construed to accomplish its purposes.” In Lara, the California Supreme Court concluded that “‘Proposition 57 is an “ameliorative change[] to the criminal law” that we infer the legislative body intended “to extend as broadly as possible.” [Citation.]’ (Id. at p. 309, italics added.)” Thus, the Fifth District explained, courts had to interpret it broadly. The Fifth District explained that “reading section 5 of Prop. 57 to permit amendments that are consistent with, and further, the intent of the Act most closely comports with voter intent.”

The Fifth District explained that the Act’s overriding purpose was “to channel more juvenile offenders into the juvenile justice system and to have a juvenile court judge make the transfer decision if one was to be made, not to set in stone the age parameters for such a determination.” The Court added that Proposition 57 did not expand, nor was intended to establish or solidify, the age at which minors could be tried as adults. That Prop. 57 permitted the transfer of 14- and 15-year-olds to criminal court in some circumstances did not mean precluding such transfer was inconsistent with the Act or did not further the intent of the Act. The Court observed that SB 1391 did not limit or take away rights granted by Prop. 57. The Court thus concluded that SB 1391 did not unconstitutionally amend Proposition 57.

Therefore, the Court concluded that SB 1391 validly amended the Act. T.D. could not be transferred to criminal court and had to receive an appropriate disposition for his offenses that was within the juvenile court law. The Fifth District Court of Appeal accordingly denied the District Attorney’s petition for writ of mandate.

[1] Riley v. California, 573 U.S. 373, 381 (2014); People v. Macabeo, 1 Cal.5th 1206, 1213 (2016).

[2] Payton v. New York, 445 U.S. 573, 585 (1980); see People v. Schmitz, 55 Cal.4th 909, 919 (2012).

[3] People v. Panah, 35 Cal.4th 395, 465 (2005).

[4] People v. Duncan, 42 Cal.3d 91, 97–98 (1986).

[5] Troyer, supra, 51 Cal.4th at p. 602.

[6] Troyer, supra, 51 Cal.4th at p. 607.

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

[8] In re Tony C., 21 Cal.3d 888, 892 (1978).

[9] INS v. Delgado, 466 U.S. 210, 229 (1984).

[10] United States v. Place (1983) 462 U.S. 696, 702; see alsoUnited States v. Hensley (1985) 469 U.S. 221, 227–228 [analysis same if suspicion involves past, as opposed to present or future, criminal activity].

[11] See Alberty v. United States, 162 U.S. 499, 511 (1896).

[12] Inyo Cty. v. Paiute-Shoshone Indians of the Bishop Cmty. of the Bishop Colony, 538 U.S. 701, 712 (2003)

[13] Skokomish Indian Tribe v. United States, 410 F.3d 506, 515-16 (9th Cir. 2005) (en banc).

[14] See id. at 516 n.8 (citing Romero v. Kitsap Cty., 931 F.2d 624, 627 n.5 (9th Cir. 1991)).

[15] Inyo Cty., 538 U.S. at 712.

[16] These facts are drawn from evidence submitted by Plaintiffs and are disputed be Defendant Gutierrez.

[17] See Chuman v. Wright, 76 F.3d 292, 294 (9th Cir. 1996).

[18] See Wilkinson v. Torres, 610 F.3d 546, 554 (9th Cir. 2010).

[19] See Kisela v. Hughes, 138 S. Ct. 1148, 1152-53 (2018) (per curiam) (quoting Plumhoff v. Rickard, 572 U.S. 765, 779 (2014)).

[20] “Ordinarily statements made by the [] court as to its reasoning are not reviewable. An exception to this general rule exists when the court’s comments unambiguously disclose that its basic ruling embodied or was based on a misunderstanding of the relevant law.” In re Jerry R., 29 Cal.App.4th 1432, 1440 (1st Dist. 1994).