CPOA Case Summaries – August 2021

Courtesy of James R. Touchstone, Esq.


A. CDCR officials who adopted regulations that were later voided entitled to legislative immunity.


Jones v. Allison, 2021 U.S. App. LEXIS 24926 (9th Cir. Aug. 20, 2021)


Facts: In November 2016, California voters passed Proposition 57, which amended the California Constitution by adding Article I, Section 32 (“Section 32”). Section 32 granted eligibility for early parole consideration to state prison inmates convicted of nonviolent felonies who had completed the full term for their primary offense.[1] Section 32 authorized the California Department of Corrections and Rehabilitations (“CDCR”) to adopt implementing regulations.[2] In 2017 and 2018, the CDCR adopted regulations (“Regulations”) which excluded from early parole consideration nonviolent felony offenders sentenced to indeterminate sentences under California’s Three Strikes Law. In 2018, the California Second District Court of Appeal found that the Regulations’ exclusion of such offenders was inconsistent with Section 32.[3] Thereafter, in 2019, the CDCR amended the Regulations to include, for early parole consideration, state prisoners serving indeterminate sentences for nonviolent third-strike offenses.[4]


Forrest Jones, Rodrigo Escarcega, and Dennis Barnes (“Plaintiffs”) are felony offenders previously sentenced under California’s Three Strikes Law whose third strike was a nonviolent felony, and who became eligible for early parole under the 2019 Amendments. Plaintiffs brought claims pursuant to 42 U.S.C. section 1983 against former and current CDCR officials (“Defendants”),[5] alleging violations of Plaintiffs’ Fourteenth Amendment procedural and substantive due process rights for due process violations for the time they spent incarcerated and ineligible for early parole consideration because of the Regulations. On a Rule 12(b)(6) motion by Defendants, the District Court dismissed the case with prejudice. The District Court dismissed the claims for damages as barred. Plaintiffs appealed.


Held: The Ninth Circuit Court of Appeals explained that under the doctrine of legislative immunity, members of Congress and state legislators are entitled to absolute immunity from civil damages for their performance of lawmaking functions.[6] Moreover, officials “outside the legislative branch are entitled to legislative immunity when they perform legislative functions.”[7] Under this functional approach, the Supreme Court has held that legislative immunity does not depend on the actor so much as the functional nature of the act itself. Absolute legislative immunity attaches to all actions taken “in the sphere of legitimate legislative activity.”[8]


The Court held that Section 32’s authorization placed Defendants’ acts adopting the Regulations in “the sphere of legitimate legislative activity,” no matter that provisions of the Regulations were later found to violate the California Constitution. The Ninth District next held that Defendants, CDCR officials, were performing a legislative function when they adopted the Regulations as directed by Section 32. The Court explained that where an act is one that “effectuate[s] policy” rather than one taken for a limited “ad hoc” purpose, a finding of legislative immunity is favored.[9] Here, Section 32 authorized Defendants to adopt regulations for the purpose of implementing policy. The Court noted that the Regulations bore the hallmarks of laws that might have been enacted by a state legislature, and that by adopting them, Defendants created binding rules of conduct affecting a wide population of individuals. The Ninth Circuit Court of Appeals thus concluded that Defendants were entitled to legislative immunity from Plaintiffs’ Section 1983 claims for damages, and accordingly affirmed the dismissal of these claims.


B. Using DNA sample from defendant who was validly arrested for felony on probable cause but never formally charged does not violate constitutional rights.


People v. Roberts, 68 Cal. App. 5th 64 (3rd Dist. 2021)


Facts: In March 2012, thirteen-year-old Jessica F.-H. was murdered in a Sacramento County park. Near the end of May 2013, Ryan Douglas Roberts was arrested for a felony in an unrelated matter. His DNA was collected after his arrest. Although that arrest was supported by probable cause, Roberts was never formally charged in that matter. In August 2013, detectives investigating Jessica’s murder interviewed Roberts after his DNA had been matched in the Combined DNA Index System (“CODIS”) to cigarette butts and Jessica’s belt buckle found at the crime scene. After the interview, Roberts was arrested.


Prior to trial, Roberts moved to suppress the DNA evidence. He asserted that California’s practice[10] of collecting and analyzing DNA from felony arrestees, including those who are ultimately not formally charged or convicted, violated the arrestees’ search and seizure rights under the Fourth Amendment and state constitutional law. The trial court denied the motion. Based primarily on the DNA evidence, a jury found Roberts guilty of murder in the first degree, and he was sentenced to an aggregate term of 26 years to life. Roberts appealed.


Held: The California Third District Court of Appeal explained that the issue here was whether using a DNA sample taken from a defendant who is validly arrested for a felony on probable cause but never formally charged, violates the defendant’s federal or state constitutional rights against unreasonable search and seizure or his state constitutional right to privacy.


The Third District noted that the United States Supreme Court in Maryland v. King (2013) 569 U.S. 435 held: “When officers make an arrest supported by probable cause to hold for a serious offense and they bring the suspect to the station to be detained in custody, taking and analyzing a cheek swab of the arrestee’s DNA is, like fingerprinting and photographing, a legitimate police booking procedure that is reasonable under the Fourth Amendment.” (Id., at pp. 465–466.) Based on the reasoning in King (and the California Supreme Court’s reasoning in Buza), the Third District concluded that King’s holding applied here, even though formal charges were not ultimately filed against Roberts. Thus, Roberts’s federal right protecting him against unreasonable search and seizure was not violated. The Court of Appeal stated that like fingerprints and photographs, once validly obtained, the later use of that evidence in the investigation of another crime is not constitutionally prohibited. Moreover, there is no constitutional impediment to matching information against other governmental records when that information is essentially in the plain view[11] of law enforcement as the result of a valid search. The Third District concluded that the DNA Act, as applied to Roberts here, did not violate the Fourth Amendment.


The Court also held that Roberts’s state constitutional rights were not violated, but even if they were violated, the state constitution’s Truth-in-Evidence provision prohibited suppression of the DNA evidence in a criminal trial.  California Constitution, article I, section 28(f)(2), states: “Right to Truth-in-Evidence. … relevant evidence shall not be excluded in any criminal proceeding, including pretrial and post conviction motions and hearings….” The Third District Court of Appeal accordingly affirmed.


C. Admission of firearm was not error when officer had reasonable suspicion observing outline of gun in passenger’s pocket.


People v. McDaniel, 12 Cal. 5th 97 (2021)


Facts: In April 2004, Los Angeles County Sheriff’s Deputies Marcus Turner and Eric Sorenson were on vehicle patrol near Nickerson Gardens, a public housing complex in Southeast Los Angeles. Deputy Turner noticed a blue Toyota without a license plate and pulled the car over. As soon as the Toyota stopped, the passenger door opened, and a man later identified as Don’te Lamont McDaniel began to exit the vehicle. Deputy Turner testified that Deputy Sorenson yelled, “‘Get back in the car,’” and McDaniel complied.


Deputy Turner arrested the driver of the Toyota for not having a driver’s license and placed him in the police car. Because the driver had no driver’s license, the deputies decided to impound the vehicle. Deputy Turner returned to the car to pull out the passenger, McDaniel, so that he could inventory the car. As Deputy Turner extended his hand to McDaniel, he noticed a bulge in McDaniel’s right pocket that resembled a gun. Deputy Turner patted him down and retrieved a loaded Ruger semiautomatic handgun and a separate loaded magazine. Five days earlier, officers responding to reports of gunshots at a Nickerson Gardens apartment discovered that four people had been shot. Two of these people died at the scene. Ten of the cartridges recovered from that crime scene matched the nine-millimeter Ruger recovered from McDaniel.


McDaniel moved to suppress the gun discovered during the traffic stop, but the trial court judge denied McDaniel’s motion. McDaniel was convicted of, among other things, two counts of first degree murder and two counts of attempted murder. A jury delivered a verdict of death in December 2008. An automatic appeal followed.


Held: On appeal to the California Supreme Court, McDaniel challenged the trial court’s denial of his motion to suppress. McDaniel argued that because the officer lacked reasonable suspicion of criminal activity, he could not order McDaniel to remain in the car against his will. Because the gun would not have been discovered if he had been permitted to leave the scene, it should have been suppressed. McDaniel argued the gun’s admission was prejudicial error under the state and federal Constitutions.


The Supreme Court explained that for purposes of the Fourth Amendment, both the driver and passenger are seized when an officer pulls over a vehicle for a traffic infraction. (Brendlin v. California (2007) 551 U.S. 249, 251.) The high court in Arizona v. Johnson (2009) 555 U.S. 323 stated that “[a] lawful roadside stop begins when a vehicle is pulled over for investigation of a traffic violation. The temporary seizure of driver and passengers ordinarily continues, and remains reasonable, for the duration of the stop. … An officer’s inquiries into matters unrelated to the justification for the traffic stop … do not convert the encounter into something other than a lawful seizure, so long as those inquiries do not measurably extend the duration of the stop.” (Id., at p. 333.) Moreover, “the tolerable duration of police inquiries in the traffic-stop context is determined by the seizure’s ‘mission’—to address the traffic violation that warranted the stop, [citation] and attend to related safety concerns.” (Rodriguez v. United States (2015) 575 U.S. 348, 354.)


The California Supreme Court found that McDaniel’s detention complied with high court precedent. Under Johnson, his temporary seizure was reasonable for the duration of the stop. There was no indication that the officers prolonged the stop beyond the time reasonably required to complete the mission. Deputy Turner processed the driver for the Vehicle Code violation while Deputy Sorenson stood next to the passenger side of the vehicle with his gun drawn. Because the driver had no license, the deputies decided to impound and inventory the vehicle. The officers then promptly investigated whether McDaniel posed a threat. When Deputy Turner directed his attention to McDaniel, who was still sitting in the passenger seat, he observed a bulge in his pocket that resembled the shape of a gun. The Supreme Court held that a reasonable officer observing the outline of a gun in a passenger’s pocket would perceive an ongoing safety threat that justifies a pat down search. Under these circumstances, the Court concluded, admission of the gun was not error. Accordingly, the California Supreme Court affirmed.


D. Inmates are not entitled to outdoor exercise under Fourteenth Amendment if there are other meaningful recreational opportunities.


Norbert v. City & Cnty. of S.F., 2021 U.S. App. LEXIS 25724 (9th Cir. Aug. 26, 2021)


Facts: Seven inmates[12] (“Plaintiffs”) incarcerated at San Francisco’s County Jail 5 (“CJ5”) filed an action asserting a broad challenge to various conditions of confinement against, among others, the City and County of San Francisco (“City”), which operates the county jails. Included in Plaintiffs’ action were those claims brought under 42 U.S.C. section 1983 for Eighth and Fourteenth Amendment violations, based on the City’s allegedly unconstitutional practice of denying inmates access to outdoor recreation time and direct sunlight exposure. CJ5 has no secure outdoor space for inmate recreation, so inmate exercise occurs indoors in central common area “day rooms,” which provide space for limited exercise, or in 16 gyms. In June 2019, Plaintiffs moved for a preliminary injunction challenging the City’s “complete deprivation of access to outdoor recreation and sunshine,” and requesting that all inmates be given three hours per week of outdoor recreation time and one hour per day of out-of-cell time.


The District Court granted in part and denied in part Plaintiffs’ motion for a preliminary injunction. The District Court found that the evidence was inconclusive as to whether the lack of access to direct sunlight created a medical risk and that Plaintiffs had not shown a likelihood of success on their constitutional claims seeking exercise time outdoors. The District Court held that the City’s policy permitting CJ5’s general population inmates to receive between 4.5 and 8 hours of day room time and 30 minutes of gym time per day was constitutionally sufficient. The District Court also found, however, that under the Fourteenth Amendment, forcing people to live without direct sunlight for many years was simply punishment. The District Court ordered the City to provide one hour per week of direct sunlight (meaning sunlight that is “not filtered through a window”) to CJ5 inmates who had been incarcerated for more than four years. Plaintiffs appealed from the District Court’s denial of preliminary injunctive relief, arguing that they were entitled to more expansive relief than the District Court granted regarding time for outdoor exercise and direct sunlight exposure.


Held: The Ninth Circuit held that, in light of its precedents and on the record, the District Court did not err in denying Plaintiffs greater preliminary injunctive relief. Addressing first the claim that Plaintiffs were entitled to three hours per week of outdoor exercise time, the Court of Appeals noted that the Circuit had recognized that exercise is a basic human necessity protected by the Eighth and Fourteenth Amendments.[13] The Court explained that although there is no bright line test to determine if and when inmates are entitled to outdoor exercise, “the Constitution requires jail officials to provide outdoor recreation opportunities, or otherwise meaningful recreation, to prison inmates.” (Shorter v. Baca, 895 F.3d 1176, 1185 (9th Cir. 2018), emphasis added.) Citing Spain v. Procunier, 600 F.2d 189 (9th Cir. 1979), the Ninth Circuit explained that it had never held that all deprivations of outdoor exercise are per se unconstitutional, nor suggest that indoor recreational opportunities could never satisfy constitutional standards.[14]


Here, the Court of Appeals found that the District Court validly determined that the conditions at CJ5 did not resemble the extreme and degrading circumstances like those in Spain in which outdoor exercise had been required. The Ninth Circuit observed[15] that most inmates in CJ5 spend eight hours per day out of their cells between free time and programming. They can exercise in both the day rooms and gyms. Moreover, they have cell windows that permit in outside natural light, and gyms that allow in both outside light and ambient air. The Ninth Circuit determined that the District Court reasonably concluded on this record that inmates were given constitutionally sufficient recreation time. Noting the District Court’s extensive factual findings, following an evidentiary hearing, that Plaintiffs and their expert had not demonstrated a risk of material harm to human health arising from the light exposure in CJ5, the Court also rejected Plaintiffs’ “direct sunlight” claim. The Ninth Circuit Court of Appeals accordingly affirmed the District Court’s denial of Plaintiffs’ request for more expansive preliminary injunctive relief.





Government entitled to qualified immunity in plaintiff’s action alleging that government employer violated his First Amendment rights by disciplining him for protected speech.


Ohlson v. Brady, 2021 U.S. App. LEXIS 25139 (9th Cir. Aug. 23, 2021)


Facts: Greg Ohlson was employed as a forensic scientist employed by the state of Arizona in the Arizona Department of Public Safety, Scientific Analysis Bureau (the “Department”), a nationally accredited agency that analyzes blood samples for alcohol content. Ohlson’s job was to test the samples and report the findings, and to testify about those findings in court proceedings. Contrary to the Department’s policy and repeated warnings, Ohlson testified in two different court cases expressing his disagreement with Department policy pertaining to disclosure of information pertaining to test results. After Ohlson testified in the second case, he was placed on administrative leave pending an investigation which resulted in a suspension in November 2016. Ohlson gave notice of his retirement later that same month.


Ohlson filed a complaint in federal district court against his supervisors (“Defendants”), alleging in part a First Amendment retaliation claim for his testimony and internal advocacy. Although the District Court held Olson established a violation of his First Amendment rights, the District Court nonetheless granted Defendants’ summary judgment motion on the basis of qualified immunity, holding that Ohlson’s First Amendment rights were not clearly established. Ohlson appealed.


Held: The Ninth Circuit Court of Appeals observed that the issue here was whether Ohlson’s speech should be treated as that of a private citizen exercising the right protected by the First Amendment to criticize the government, or as that of a government employee subject to discipline for undermining agency administration and public confidence in agency operations. Ohlson argued that the Defendants were not entitled to qualified immunity because their violations of his First Amendment rights, especially his right to testify truthfully in court, were clear.


Reviewing relevant case history, the Ninth Circuit noted that the United States Supreme Court in Pickering v. Bd. of Ed. of Twp. High Sch. Dist. 205, Will Cnty., Ill., 391 U.S. 563, 568 (1968) established a balancing test between the interests of a public employee, “as a citizen, in commenting upon matters of public concern and the interest of the State, as an employer, in promoting the efficiency of the public services it performs through its employees.” Id., at 568. Although Supreme Court and Ninth Circuit[16] cases after Pickering addressed the issue of the First Amendment rights of public employees, these cases did not involve an employee’s testimony in court. However, in 2014, the Supreme Court in Lane v. Franks, 573 U.S. 228 (2014) finally addressed a case involving a public employee’s testimony in court.


In Lane, the plaintiff’s job as a community college program director did not require him to testify, but he was testifying outside the duties of his job. The majority opinion stressed that as an employee, the plaintiff must be protected when performing a duty to testify that is required by all citizens and not a duty imposed solely as a result of his job duties. This was critical to the Lane majority’s conclusion that the plaintiff’s speech was protected by the First Amendment. Significant here, a special concurrence by Justice Thomas expressly reserved the question of whether testimony given as part of the duties of the job, like those of a policeman or laboratory analyst, would be protected. Lane, 573 U.S. at 247 (Thomas, J., concurring).


Thus, the opinion and concurrence in Lane, together with the lack of authority on the matter since Lane, compelled the Ninth Circuit here to conclude that there was no clearly established law protecting the testimony that Ohlson gave in the course of performing his duties as a laboratory analyst for the state. The Court therefore concluded Defendants were entitled to qualified immunity, and affirmed.


The Court nevertheless dealt with the issue regarding public employee testimony given in the course of job duties as one of first impression. The Ninth Circuit noted that unlike Lane, the instant case concerned testimony by an employee who was required to testify as part of his government employment. Ohlson was disciplined in large part because, in his testimony in two separate cases, he had expressed his view that flaws in testing could be better identified if the Department disclosed requested testing results in batches rather than individually. Such disclosure was contrary to the Department’s practice, one that had met industry standards. Ohlson believed his idea was better and violated orders not to so testify.


The Ninth Circuit explained that the District Court did not consider the fact that Ohlson was testifying in court as the Department’s employee, and that the Department had an interest in what he said. The Ninth Circuit noted that protecting speech because it violates a supervisor’s order, as the District Court had asserted, would make it difficult for an agency to enforce any rules, even those necessary to preserve proper agency administration. The Ninth Circuit also disagreed with the District Court’s conclusion that the Department had not identified any particular injury to the state. The Court of Appeals explained that Ohlson’s testimony and advocacy contrary to Department policy could conceivably have adversely affected confidence in the accuracy of the Department’s test results, as well as in the licensed and accredited Department itself.


For a more detailed discussion of this case, please see Client Alert Vol. 36, No. 17, available at www.jones-mayer.com.





Although retiree sold back vacation accrued during year before his retirement to increase his pensionable compensation, this conduct was expressly permitted at the time and thus not improper.


Nowicki v. Contra Costa Cnty. Employees’ Ret. Ass’n, 67 Cal. App. 5th 736 (1st Dist. 2021)


Facts: Peter J. Nowicki was employed with the Moraga-Orinda Fire District (“Fire District”) from 1983 until 2009. He became fire chief in July 2006. As a Fire District employee, Nowicki was a member of Contra Costa County Employees’ Retirement Association (“CCCERA”), a defined benefit public employees’ retirement system, which administers pensions for Contra Costa County. As permitted by two amendments to Nowicki’s employment contract, he sold back hundreds of hours of previously accrued vacation time. Nowicki retired near the end of January 2009.


Under his contract as fire chief, Nowicki was eligible for retirement benefits under the then applicable formula, which used a member’s highest annual “compensation earnable.” When Nowicki retired, his retirement allowance of $20,076.00 per month was based on the total of his final year’s salary plus the vacation leave and holiday cash-outs taken during his final year of employment.


In August 2015, CCCERA’s governing board of retirement (the “Board”) notified Nowicki that it was considering adjusting his retirement allowance pursuant to Government Code section 31539, which permits a retirement board to correct any error made in the calculations of a retired member’s monthly allowance, under certain conditions. After an open public meeting addressing the Board’s concerns, CCCERA informed Nowicki that the Board had determined that he had caused his final compensation to be improperly increased at the time of retirement; that his retirement allowance would therefore be reduced, and that Nowicki must repay overpayments since his retirement date.


In March 2018, Nowicki filed a fourth amended writ petition against CCCERA, which included a single cause of action for writ of mandate alleging that the Board had abused its discretion when it found that he had violated Government Code section 31539. The trial court denied Nowicki’s petition, and entered judgment in favor of CCCERA. Nowicki appealed.


Held: The First District Court of Appeal explained that the subdivision of Section 31539 at issue here states: “(a) The board of retirement may, in its discretion, correct any error made in the calculation of a retired member’s monthly allowance or any benefits under this chapter if either of the following exist: [¶] … [¶] (2) The member caused his or her final compensation to be improperly increased or otherwise overstated at the time of retirement and the system applied that overstated amount as the basis for calculating the member’s monthly retirement allowance or other benefits under this chapter.” (Section 31539, subd. (a)(2).) On appeal, Nowicki contended that the Board abused its discretion when it found he had improperly caused his final compensation to be increased under Section 31539(a)(2).


After deeming the statutory term “improperly” ambiguous, the Court considered the legislative history of Section 31539 and the law in existence at the time of Nowicki’s retirement. The Court concluded that the Board erroneously interpreted subdivision (a)(2) as applicable to Nowicki. In giving county retirement boards the discretion to correct errors made in the calculation of the retirement allowance of a retired member who “caused his or her final compensation to be improperly increased or otherwise overstated at the time of retirement” (Section 31539(a)(2)), it was, said the Court, “not plausible that the Legislature intended to empower retirement boards to target long retired county employees who had negotiated with their employer for contract terms permitted under then-existing law and county retirement association guidance, solely because those acts enabled them to increase their final compensation at the time of retirement.”


The First District acknowledged that Nowicki’s preretirement efforts to increase his compensation earnable in the period before his retirement, which allowed him to maximize his pension, epitomized pension spiking,[17] a practice that led to the subsequent enactment of the California Public Employees’ Pension Reform Act of 2013 (“PEPRA”).[18] The Court stated, however, that it could not sanction the Board’s legally unsupported use of Section 31539 to penalize Nowicki for conduct that—while now prohibited under PEPRA—was expressly permitted at the time of his retirement.[19] The Court therefore concluded that the Board abused its discretion, and reversed the trial court’s judgment denying Nowicki’s petition for writ of mandate accordingly.





After passage of Proposition 64, possession of cannabis in prison remains a violation of Penal Code section 4573.6.


People v. Raybon, 11 Cal. 5th 1056 (2021)


Facts: Five defendants in the instant case were each found in possession of less than 28.5 grams of cannabis (approximately one ounce) in a state prison and were subsequently convicted of violating Penal Code section 4573.6 (“Section 4573.6”), which makes it a felony to possess a controlled substance in a state correctional facility. In November 2016, California voters passed Proposition 64 (the “Act”), which, among other things, makes it lawful for persons aged 21 years and older to possess of up to 28.5 grams of cannabis, subject to certain exceptions.[20] The initiative also includes a remedial provision that allows persons currently serving a sentence for a cannabis-related crime that is no longer an offense under Proposition 64 to file a petition requesting the dismissal of their sentence.[21]


The defendants filed petitions in the Sacramento County Superior Court arguing that their sentences for violating Section 4573.6 should be dismissed because adult possession of less than an ounce of cannabis in prison no longer qualifies as a crime. The trial court issued orders denying the petitions, concluding that Section 4573.6 falls within an exception set forth in Health and Safety Code section 11362.45(d) stating that Proposition 64 has no effect on laws “pertaining to smoking or ingesting cannabis or cannabis products” in state correctional facilities. (Section 11362.45(d).) Reviewing the defendants’ consolidated appeal, the Third District Court of Appeal held that the exception’s phrase “pertaining to smoking and ingesting” was not intended to include a third distinct activity, possession. The Third District directed the lower court to enter orders granting the defendants’ petitions for relief. The Supreme Court of California granted the Attorney General’s subsequent petition for review.


Held: The Supreme Court considered whether Proposition 64 legalized possession of less than an ounce of cannabis in state prisons and other custodial institutions. The Supreme Court explained that Section 4573.6 and similar Section 4573 provisions, which target the possession rather than the consumption of unauthorized drugs in prison, “flow from the assumption that drugs . . . and other contraband promote disruptive and violent acts in custody, including gang involvement in the drug trade. Hence, these provisions are viewed as ‘“prophylactic”’ measures that attack the ‘“very presence”’ of such items in the penal system.” (People v. Low (2010) 49 Cal.4th 372, 388.) The Court added that there is no law that criminalizes the actual consumption of drugs in a custodial setting.


The Supreme Court explained that although Proposition 64 generally legalizes adult possession of cannabis, it contains several exceptions. Subdivision (d) of Section 11362.45, added by Proposition 64, provides: “Section 11362.1 does not amend, repeal, affect, restrict, or preempt . . . [¶] . . . [¶] (d) Laws pertaining to smoking or ingesting cannabis or cannabis products” in state prisons and other facilities. (Section 11362.45(d); emphasis added.) The Court stated that on its face, the phrase “laws pertaining to smoking or ingesting cannabis” was broad enough to encompass statutes that prohibit the possession of cannabis. After consulting various dictionary definitions of the word “pertain,” the Court determined that the phrase “pertaining to” “is plainly meant to refer to a relation between two things rather than an exact correspondence.”[22] The Court thus concluded that the text of Section 11362.45(d) indicated the drafters of Proposition 64 did not intend the statute to encompass only laws that explicitly regulate ingesting or smoking cannabis in prison, but rather intended it to include laws that relate to smoking or ingesting cannabis in prison.

The Court considered it obvious that laws barring possession of cannabis in prison relate to drug use because the act of possessing cannabis and the act of using cannabis have an obvious relation insofar as a person must possess cannabis to smoke or ingest it. Moreover, the Court observed that if Proposition 64’s drafters intended to limit subdivision (d) in the manner the defendants suggested, the drafters could have, rather than the term “pertain to,” used similar “prohibit” or “unlawful” terminology that was used in several of Section 11362.45’s other subdivisions. The Supreme Court thus concluded that possession of cannabis in prison remains a violation of Penal Code section 4573.6. The Court accordingly reversed the Third District’s decision and remanded.


For a more detailed discussion of this case, please see Client Alert Vol. 36, No. 16, available at www.jones-mayer.com.





A. Prohibiting ‘loss of life’ damages would run afoul of 42 U.S.C. section 1983’s remedial purpose.


Valenzuela v. City of Anaheim, 6 F.4th 1098 (9th Cir. 2021)


Facts: In July 2016, Fermin Valenzuela, Jr. died after a violent struggle with Anaheim Police Department officers, who had responded to reports of a suspicious person near a laundromat. Valenzuela’s father and children filed suit under 42 U.S.C. section 1983 and California law against the City of Anaheim and individual officers (collectively, “Defendants”) for excessive force, wrongful death, and similar theories of liability. After a trial, the jury awarded the Valenzuela family a total of $13.2 million in damages on multiple theories of liability, including $3.6 million for Valenzuela’s “loss of life,” which was independent of any pain and suffering that he endured during and after the struggle with the officers.


In their post-trial motions, the Defendants argued that because California state law did not recognize loss of life damages, neither should Section 1983. The District Court concluded that Section 1983 permitted the recovery of loss of life damages, and that California state law to the contrary was inconsistent with the federal statute’s goals. Defendants appealed.


Held: The Ninth Circuit Court of Appeals noted that Civil Procedure code section 377.34 provides: “In an action…by a decedent’s personal representative or successor in interest on the decedent’s cause of action, the damages recoverable are limited to the loss or damage that the decedent sustained or incurred before death, including any penalties or punitive or exemplary damages that the decedent would have been entitled to recover had the decedent lived, and do not include damages for pain, suffering, or disfigurement.” (Section 377.34; emphasis added.) The Court explained that under Section 377.34, California law does not permit recovery for a decedent’s loss of life, and that the relevant federal law is silent as to loss of life damages. Therefore, the Court explained, California law controlled its inquiry here “unless it is inconsistent with the policies of [Section] 1983.” (Chaudhry v. City of Los Angeles, 751 F.3d 1096, 1103 (9th Cir. 2014).) The Court observed that Section 1983 was meant to be a remedial statute and should be “broadly construed” to provide a remedy “against all forms of official violation of federally protected rights.” Dennis v. Higgins, 498 U.S. 439, 445 (1991) (citation omitted).


In Chaudhry, the Ninth Circuit had addressed whether Section 377.34’s prohibition of pre-death pain and suffering damages prevented Section 1983 plaintiffs from obtaining such relief. Chaudhry recognized that “[o]ne of Congress’s primary goals in enacting Section 1983 was to provide a remedy for killings unconstitutionally caused or acquiesced in by state governments,” and that “[i]n cases where the victim dies quickly, there often will be no damage remedy at all under [Section] 377.34.”[23] Because California’s bar on such relief had “the perverse effect of making it more economically advantageous for a defendant to kill rather than injure his victim,” the Ninth Circuit had held that the state’s bar on relief clashed with Section 1983’s remedial purpose and undermined its deterrence policy, stating: “Section 377.34 therefore does not apply to [Section] 1983 claims where the decedent’s death was caused by the violation of federal law.”[24]


Here, the Court found no “meaningful way to distinguish Chaudhry from this case.” Both involved deaths caused by a violation of federal law, and both considered the limits that Section 377.34 places on Section 1983 plaintiffs, limits that the Ninth Circuit had already definitively rejected. The Court determined that prohibiting loss of life damages would run afoul of Section 1983’s remedial purpose as much as (or even more than) the ban on pre-death pain and suffering damages. Following Chaudhry, the Ninth Circuit held that Section 377.34’s prohibition of loss of life damages was inconsistent with Section 1983, and accordingly affirmed.


B. Connection between a ranger’s storage of a pistol in his vehicle and the victim’s death was so remote that, as a matter of law, the ranger’s acts were not the proximate or legal cause of the fatal incident.


Steinle v. United States, 2021 U.S. App. LEXIS 25326 (9th Cir. Aug. 24, 2021)


Facts: In 2015, John Woychowski worked as a law enforcement ranger for the Bureau of Land Management (“BLM”) in El Centro, California. While traveling on the way to Montana with his family in their personal car, the family stopped for the night in San Francisco on June 27, 2015. Woychowski parked on the street along a waterfront boulevard popular with tourists at about 9:30 p.m., and walked with his family to a nearby restaurant. The family’s luggage and belongings were visible to passersby. Among other things, Woychowski left in the car a loaded, BLM-issued Sig Sauer P239 pistol, in a holster, inside a backpack. The pistol did not have the trigger lock on it that the BLM had issued to Woychowski. When Woychowski and his family returned to the car just before 11 p.m., they found the rear passenger windows smashed and the backpack and other property gone. Woychowski reported the theft to police immediately. The backpack was recovered that night, but the pistol that had been in it was not.


Four days after the theft, Kathryn Steinle was walking with her father James on a pier about half a mile from where Woychowski had parked the family car. Juan Francisco Lopez-Sanchez was sitting on a bench nearby. He found Woychowski’s pistol, wrapped in a shirt or rag, near where he was sitting.[25] He picked up the wrapped pistol, fired it, and a bullet ricocheted off the ground, striking and killing Ms. Steinle.


Plaintiffs James Steinle and Elizabeth Sullivan brought an action against Defendant, the United States, pursuant to the Federal Tort Claims Act (“FTCA”).[26] They alleged that Woychowski was negligent in failing to store or secure his firearm properly and in leaving it, loaded, in an unattended vehicle in an urban location where the firearm could be stolen readily; and that Woychowski’s negligence resulted in the death of their daughter, Kathryn. The District Court entered summary judgment in favor of Defendant, concluding, among other things, that Woychowski’s actions were not a proximate cause of her death. Plaintiffs appealed.


Held: The Ninth Circuit Court of Appeals explained that under the FTCA, the United States may be held liable for “personal injury or death caused by the negligent or wrongful act or omission of any employee of the Government . . . under circumstances where the United States, if a private person, would be liable to the claimant in accordance with the law of the place where the act or omission occurred.”[27]


The Ninth Circuit considered whether Woychowski’s actions were the proximate cause of Ms. Steinle’s death. The Court noted that several events intervened after Woychowski left the loaded pistol in his vehicle: (1) someone broke into the locked vehicle; (2) someone stole a backpack; (3) someone found a pistol in that backpack; (4) someone removed the pistol from its holster, then wrapped it in a cloth and abandoned or lost it a half-mile away; (5) Lopez-Sanchez picked up the firearm, four days later, and fired it, apparently aimlessly; and (6) the bullet ricocheted off the ground and struck Kathryn Steinle. Thus, the criminal and negligent actions of at least two other people intervened between Woychowski’s storage of the pistol and Ms. Steinle’s death.


Applying California law,[28] the Court concluded that the connection between Woychowski’s storage of the pistol in his vehicle and Ms. Steinle’s death was so remote that, as a matter of law, the ranger’s acts were not the proximate or legal cause of the fatal incident. The Ninth Circuit Court of Appeals accordingly affirmed the District Court’s summary judgment on that ground.

[1] Cal. Const. art. I, Section 32(a)(1).

[2] Section 32(b).

[3] See In re Edwards, 26 Cal. App. 5th 1181, 1192 (2nd Dist. 2018).

[4] See Cal. Code Regs. tit. 15, Section 2449.30 (2019).

[5] Plaintiffs did not name the CDCR as a defendant.

[6] See Tenney v. Brandhove, 341 U.S. 367, 376-77, 379 (1951).

[7] Bogan v. Scott-Harris, 523 U.S. 44, 55 (1998).

[8] Tenney, supra, 341 U.S. at 376.

[9] Kaahumanu v. County of Maui, 315 F.3d 1215, 1220 (9th Cir. 2003).

[10] California’s DNA Fingerprint, Unsolved Crime and Innocence Protection Act (“DNA Act”) “requires law enforcement officials to collect DNA samples, as well as fingerprints, from all persons who are arrested for, as well as those who have been convicted of, felony offenses.” (People v. Buza (2018) 4 Cal.5th 658, 664, citing Penal Code section 296.1(a)(1)(A).) Under the DNA Act, collected DNA samples are sent for forensic analysis to a state lab which uses the samples to create a unique DNA identification profile. This profile is stored in California’s DNA databank. California’s DNA databank is part of the CODIS, a nationwide database that enables law enforcement to search DNA profiles collected from federal, state, and local collection programs. DNA profiles stored by the DNA Laboratory may be accessed by law enforcement agencies.


[11] See Arizona v. Hicks, 480 U.S. 321, 324-325 (1987).

[12] Six of the inmates are pretrial detainees, and one awaits sentencing.

[13] See May v. Baldwin, 109 F.3d 557, 565 (9th Cir. 1997) (quoting LeMaire v. Maass, 12 F.3d 1444, 1457 (9th Cir. 1993)); and Pierce v. County of Orange, 526 F.3d 1190, 1211-12 (9th Cir. 2008).

[14] See Spain, at p.199, Toussaint v. Yockey, 722 F.2d 1490, 1493 (9th Cir. 1984), and Pierce v. County of Orange, 526 F.3d 1190, 1212 n.22. (9th Cir. 2008).

[15] The Ninth Circuit noted that since Spain, it had reaffirmed that the constitutionality of conditions for inmate exercise must be evaluated based on the full extent of the available recreational opportunities, as described next.

[16] See Eng v. Cooley, 552 F.3d 1062, 1070 (9th Cir. 2009) reviewing Supreme Court guidance on public employment free speech law. See also Dahlia v. Rodriguez, 735 F.3d 1060, 1068-76 (9th Cir. 2013) (en banc), outlining “guiding principles” as to whether public employees are speaking as private citizens.


[17] “[P]ension spiking” has been defined as “‘[t]he practice of increasing [an employee’s] retirement allowance by increasing final compensation or including various non-salary items (such as unused vacation pay) in the final compensation figure used in the [employee’s] retirement benefit calculations, and which has not been considered in prefunding of the benefits.’” Marin Assn. of Public Employees v. Marin County Employees’ Retirement Assn., 2 Cal.App.5th 674, 682 (1st Dist. 2016) (Review granted Nov. 22, 2016, S237460. On September 23, 2020, review was dismissed and the cause was transferred to Court of Appeal, First Appellate District, Division Two.).

[18] Government Code section 7522 et seq. Among the many changes wrought by PEPRA was a redefinition of “compensation earnable” for county employees to exclude payments for unused vacation in an amount exceeding that which “may be earned and payable in each 12-month period during the final average salary period, regardless of when reported or paid.” (Government Code section 31461(b)(2), as amended by PEPRA.)

[19] See Alameda County Deputy Sheriff’s Assn. v. Alameda County Employees’ Retirement Assn., 9 Cal.5th 1032, 1092 (2020); See also Ventura County Deputy Sheriff’s Assn. v. Board of Retirement, 16 Cal.4th 483, 497–498 (1997).

[20] See Health & Safety Code section 11362.1(a).

[21] Health & Safety Code section 11361.8(a).

[22] People v. Whalum, 50 Cal.App.5th 1, 11 (4th Dist. 2020), review granted Aug. 12, 2020, S262935

[23] Chaudhry, 751 F.3d at 1103-04.

[24] Id. at 1105.

[25] Who stole the pistol, who might have possessed thereafter, or how the pistol came to be left wrapped the way it was near the bench where Lopez-Sanchez found it was never determined.

[26] 28 U.S.C. section 1346.

[27] Id., subdivision (b)(1).

[28] See Wawanesa Mut. Ins. Co. v. Matlock, 60 Cal. App. 4th 583 (4th Dist. 1997), Shih v. Starbucks Corp., 53 Cal. App. 5th 1063 (2nd Dist. 2020), and Modisette v. Apple, Inc., 30 Cal. App. 5th 136 (6th Dist. 2018).