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CONSTITUTIONAL LAW
A. Defendant’s electronic device search condition was invalid under People v. Lent because it imposed a significant privacy burden and there was no information connecting it with preventing future criminality.
People v. Bryant, 42 Cal. App. 5th 839 (2019)
Facts: On a night in August 2014, Pasadena Police Department officers responded to a call for service outside a housing complex where a group of individuals were drinking and refusing to leave the area. Clydell Bryant and his girlfriend were smoking marijuana in a parked car in the area. Bryant was in the passenger seat and his girlfriend sat in the driver’s seat. A Pasadena police officer approached the driver’s side of the car and smelled a strong odor of marijuana coming from the car. Bryant and his Bryant’s girlfriend complied when the officer asked them to step out of the car so he could check for marijuana. The officer searched the car and found a semiautomatic handgun under the front passenger seat.
A jury convicted Bryant of carrying a concealed firearm in a vehicle, and found that the firearm was loaded and not registered to him. The court imposed a two-year sentence, part of which was to be served under mandatory supervision. During the mandatory supervision period, the court required Bryant to submit to searches of text messages, e-mails, and photographs on any cellular phone or other electronic device in his possession or residence. Bryant appealed the electronic search condition requirement.
In an opinion filed in April 2017, the California Second District Court of Appeal agreed with Bryant that the condition was invalid under People v. Lent (1975) 15 Cal.3d 481 and struck the condition. The state Supreme Court granted Bryant’s petition for review and deferred consideration of the case pending its decision in another case. After it decided that other case in In re Ricardo P. (2019) 7 Cal.5th 1113, the Supreme Court transferred the current case to the Second District with directions to vacate its April 2017 opinion and reconsider in light of Ricardo P.
Held: The Second District Court of Appeal explained that under Lent, a court abuses its discretion when it imposes a term or condition that, among other things, requires or forbids conduct which is not reasonably related to future criminality. (Lent, supra, at p. 486.) “A probation condition that imposes substantially greater burdens on the probationer than the circumstances warrant is not a ‘reasonable’ one.” (Ricardo P. at p. 1128.) In the case of electronic search conditions, the salient burden on a probationer is the burden imposed on his or her privacy interest. (Ricardo P. at pp. 1122–1123.) The Attorney General asserted that the electronic search condition was reasonably related to preventing future criminality under Lent. Bryant contended that the requirement was invalid and unconstitutionally overbroad.
The Second District observed that in Ricardo P., the Supreme Court found an electronic search condition imposed on a juvenile was invalid because it “impose[d] a very heavy burden on privacy with a very limited justification.” (Ricardo P., supra, 7 Cal.5th at pp. 1119–1120, 1124.) More particularly, the condition “imposed a sweeping probation condition requiring [the probationer] to submit all of his electronic devices and passwords to search at any time” even though “nothing in the record suggests that [the probationer] has ever used an electronic device or social media in connection with criminal conduct.” (Id. at pp. 1122–1123.)
Here, the Second District found that the electronic search condition was similarly sweeping and burdensome. The right to search extended to all of Bryant’s text messages, e-mails, and photos on any device in his possession or residence, with the potential to reveal “vast amounts of personal information unrelated to defendant’s criminal conduct or his potential for future criminality.”[1] Moreover, because the search condition “lack[ed] any temporal limitations,” probation officers could “access digital information that long predated the imposition of” Bryant’s sentence. (Ricardo P., supra, 7 Cal.5th at p. 1127.) Thus, the electronic search condition similarly “impose[d] a very heavy burden on privacy.” (Id. at p. 1124.)
The Court observed that although Bryant had been smoking marijuana in a car, there was nothing to suggest that his phone must be monitored, for example, for drug sales. The Court also observed that the Supreme Court in Ricardo P. court referred to the Second District’s April 2017 opinion in the case to implicitly disapprove of the search condition imposed on Bryant. The Second District Court therefore concluded that the electronic search condition was invalid under Lent.[2] The Court accordingly struck the condition, and otherwise affirmed.
B. In domestic violence case, Ninth Circuit determines that the state-created danger doctrine may apply when officer comments convey to abuser that abuse may continue.
Martinez v. City of Clovis, 2019 U.S. App. LEXIS 35989 (9th Cir. Dec. 4, 2019)
Facts: Desiree Martinez and Kyle Pennington (a City of Clovis Police Department officer) started living together in 2013 with Martinez’s daughter, Destiny, in Clovis. Pennington first physically and sexually abused Martinez in April 2013, while the two were in Dublin, California. On May 2, 2013, Pennington became physically abusive and, after hiding, Martinez called 911. Clovis Police Officers Kristina Hershberger responded. Pennington warned Martinez not to say anything. Hershberger then spoke with Martinez outside of Pennington’s immediate presence, but Martinez maintained that Pennington was still within eye and earshot. Hershberger testified that Martinez had told her about Pennington’s physical abuse in Dublin. Martinez testified that she also told the officer that Pennington had pushed her down the stairs that evening. Martinez claimed that Hershberger asked her to “hold on just a second” and moved away. Martinez was intimidated by the way Pennington stared at her so she moved to him to ease his concern. Hershberger returned and asked Martinez to repeat her statements about what had happened in Dublin. Martinez testified that “[she] was scared because [Hershberger] had said Dublin and she had said it in front of [Pennington], so [Martinez] told her, ‘Nothing, nothing happened,’” Martinez heard Pennington clear his throat, which she said meant he was angry, so she feigned ignorance replying to Hershberger.
Hershberger had received domestic violence training and was aware that domestic violence victims “might tend to recant accusations of violence” out of fear of reprisal. She believed that Martinez faced potential risk if she stayed with Pennington that night. However, Hershberger did not arrest Pennington. She did not advise Martinez of her right to make a citizen’s arrest, her right to obtain a restraining order, or the possibility of staying at a shelter. She did not provide Martinez with Clovis’s pamphlet for victims of domestic violence. Instead, she recommended that Martinez be interviewed again.
Hershberger and Pennington had both worked with the Clovis Police Department (“Clovis PD”) for about nine years. Pennington testified that after Martinez went back inside the house, Hershberger spoke with him, asking him “what [he] was doing dating a girl like Desiree Martinez …because [Hershberger] didn’t think that [Martinez] was necessarily a good fit for me.” That night, Pennington physically abused Martinez, called her a “leaky faucet” and asked her what she had told Hershberger and whether she was trying to get him in trouble.
On the night of June 3, 2013, Pennington physically and sexually abused Martinez. Martinez stated that he choked, beat, suffocated, and sexually assaulted her. A neighbor called 911. Sanger Police Department Officer Angela Yambupah, Sergeant Fred Sanders, and two other officers responded and found Pennington and Martinez outside of the house. Yambupah had received domestic violence training. She noticed that Martinez had injuries consistent with those of a victim of physical abuse, which Yambupah photographed. Martinez testified that when Yambupah spoke with her, Pennington and Martinez were not separated by more than seven feet, within earshot. She whispered to Yambupah that Pennington injured her, that Pennington had tried to smother her with a pillow, and that he had attempted to choke her. Yambupah believed that she had probable cause to arrest Pennington, that his arrest was mandatory under state law, and that Pennington had access to weapons as a police officer. Yambupah also learned from Martinez that Pennington was on administrative leave from the Clovis PD because of a domestic violence incident with an ex-girlfriend.
Yambupah informed Martinez that she was going to make an arrest, but when Yambupah informed the other officers of Martinez’s allegations and that Pennington was with the Clovis PD, Sergeant Sanders, the acting supervisor on the scene, ordered her to refer the matter to the District Attorney instead of making an arrest. Yambupah testified that had Sanders not given the order, she would have arrested Pennington on that day “in the interest of Ms. Martinez’s safety.”
The officers did not give Martinez the jurisdiction’s domestic violence information handout, did not inform her of her right to effect a citizen’s arrest, did not offer her transportation to a shelter, and did not issue an emergency protective order. Yambupah testified that she did not give Martinez the handout because she did not want to leave her side. She “asked Martinez to let [her] help her,” but Martinez refused. She did not issue a protective order because Martinez “was not willing to pursue any assistance from [her] at all.” She foresaw a risk of continued violence, which she attempted, unsuccessfully, to address by verifying that Pennington was going to leave.
Yambupah did not know that Pennington was an officer with the Clovis PD until Martinez informed her that he was. Pennington testified that he knew of Sanders, but that they were not friends. Pennington’s father and Sanders had known each other for at least 25 years. On leaving, Sanders said that the Pennington’s were “good people.” After the officers left, Martinez was again beaten and sexually assaulted by Pennington. He was arrested the next day, and a criminal protective order was issued. Pennington physically and sexually abused Martinez multiple times between July and September 2013, when she finally moved out. Pennington was eventually convicted of multiple counts of violating the criminal protective order. He also pled guilty to one domestic violence charge.
Martinez sued Pennington, the cities of Clovis and Sanger, Officers Hershberger, Yambupah, and Sergeant Sanders, among others. Martinez asserted claims under 42 U.S.C. section 1983 of individual liability against Hershberger, Yambupah, and Sanders. The cities and officer defendants moved for summary judgment. The District Court granted summary judgment on all claims against the cities of Sanger and Clovis, as well as Hershberger, Yambupah, and Sanders. Partial judgment was issued. Martinez appealed.
Held: The Ninth Circuit Court of Appeals first explained that in evaluating whether an officer is entitled to qualified immunity, courts consider (1) whether the facts that a plaintiff has alleged make out a violation of a constitutional right, and (2) whether that right was clearly established at the time of the incident. See Wilkinson v. Torres, 610 F.3d 546, 550 (9th Cir. 2010). The Court recalled that the Ninth Circuit tended to address both prongs of qualified immunity where the two-step procedure promoted the development of constitutional precedent.
The Court began by considering the first prong of the qualified immunity inquiry, whether a constitutional right was violated. The Court explained that although the Due Process Clause of the Fourteenth Amendment does not “impose a duty on the state to protect individuals from third parties,” Patel v. Kent Sch. Dist., 648 F.3d 965, 971 (9th Cir. 2011), the state may be constitutionally required to protect a plaintiff that it “affirmatively places . . . in danger by acting with ‘deliberate indifference’ to a ‘known or obvious danger.’” Patel, 648 F.3d at 971-72 (quoting L.W. v. Grubbs, 92 F.3d 894, 900 (9th Cir. 1996)). Martinez argued that this state-created danger doctrine applied because Hershberger, Yambupah, and Sanders affirmatively exposed her to a greater risk of a known danger. After assessing the doctrine in regards to the conduct of the three officers,[3] the Ninth Circuit held that a reasonable jury could find that Officer Hershberger and Sergeant Sanders violated Martinez’s due process right to liberty by affirmatively increasing the known and obvious danger Martinez faced. The Court determined Officer Yambupah did not affirmatively increase the known or obvious danger to Martinez, and was thus entitled to qualified immunity.
The Ninth Circuit next addressed whether, at the time of the challenged conduct, the law was “clearly established” such that every reasonable officer in the officers’ shoes would have known that their conduct violated Martinez’s right to due process. The United States Supreme Court has declared that “‘clearly established law’ should not be defined ‘at a high level of generality.’” White v. Pauly, 137 S. Ct. 548, 552 (2017) (quoting Ashcroft v. al-Kidd, 563 U.S. 731, 742 (2011)). Rather, it “must be ‘particularized’ to the facts of the case.” Id. (quoting Anderson v. Creighton, 483 U.S. 635, 640 (1987)). “[A] defendant cannot be said to have violated a clearly established right unless the right’s contours were sufficiently definite that any reasonable official in the defendant’s shoes would have understood that he was violating it.” Plumhoff v. Rickard, 572 U.S. 765, 778-79 (2014) (citing al-Kidd, 563 U.S. at 741).
The Court observed that here the process to determine the matter involved first seeking binding precedent from the Supreme Court or the Ninth Circuit itself. Absent such precedent, decisions of state courts, other circuits, and district courts could be considered. Wherever the decision arose, the precedent must be “‘controlling’— from the Ninth Circuit or the Supreme Court—or otherwise be embraced by a ‘consensus’ of courts outside the relevant jurisdiction.” Sharp v. Cty. of Orange, 871 F.3d 901, 911 (9th Cir. 2017) (quoting Wilson v. Layne, 526 U.S. 603, 617 (1999)).
Martinez identified a Second Circuit decision, Okin v. Village of Cornwall-on-Hudson Police Department, 577 F.3d 415 (2d Cir. 2009), as being factually similar to the case here.[4] However, the Ninth Circuit stated that it could not rely on Okin because it had not been embraced by a consensus of courts. In the absence of compelling precedent, the Ninth Circuit thus did not find that every reasonable official would have understood that the officers’ conduct here violated Martinez’s right to due process. The Ninth Circuit thus found that Officer Hershberger and Sergeant Sanders were entitled to qualified immunity because the due process right conferred in the context before the Court was not yet clearly established at the time of the facts in the case.
For a more detailed discussion of this case, please see Client Alert Vol. 34, No. 41, available at www.jones-mayer.com.
C. Probable cause exists to search another person’s home located on a larger property if there is reason to believe the defendant controls the entire parcel or criminality pervades the parcel.
Blight v. City of Manteca, 944 F.3d 1061 (9th Cir. 2019)
Facts: In September 2014, Manteca Police Department detectives Armando Garcia and Ian Osborn met with a confidential informant who had information on an illegal marijuana operation run by Marlin Lee Ford on his 4.26-acre rural property in Stockton, California. The informant had provided Garcia with truthful and reliable information on other marijuana operations in the past. The informant was not paid for the information, but there was a leniency arrangement related to whether other conduct would be treated as felonies or misdemeanors if the informant provided the Government information helpful to further drug investigations.
The informant provided the detectives with extensive firsthand knowledge of Ford’s operation: the informant had known Ford for more than ten years from the informant’s activities in the marijuana industry; the informant had helped Ford grow and process marijuana on Ford’s property; the informant knew where to find Ford’s property and could describe the property in detail; and the informant said there were guns and large dogs on the property. Detective Garcia corroborated that Ford lived at the property the informant had described, and he and Detective Osborn drove with the informant to the property. The informant identified the correct property, and identified Ford correctly from Ford’s DMV photo. The informant identified the field where the marijuana was being grown and two residences – Ford and his family lived in the main house and Nicolas Serrano, who helped Ford with the marijuana operation, lived in the mobile home.
Garcia applied for a search warrant. The search warrant affidavit stated that the premises to be searched included the “two modular homes, chicken coops and a small barn and various outbuildings.” Detective Garcia also gained approval for SWAT officers to assist the police officers with executing the warrant on the large property. The warrant was approved.
On the morning of October 23, 2014, Manteca police and SWAT officers executed the search warrant. Serrano and his children were actually in the main house, and Serrano was arrested. Serrano’s wife drove up during the search, and told Detective Garcia that an elderly woman, Joanne Blight, was inside the mobile home.
SWAT officers made announcements over a PA system to try to get Blight to exit the mobile home, and also ordered Blight to exit from the front door of the mobile home, but were unsuccessful. After six minutes passed with no response, SWAT officers breached the mobile home’s front door with a ram. Blight exited three minutes later and was placed into a police car without being searched or handcuffed. She recalled her detention time as almost an hour, whereas the dispatch transcription log recorded the time of Blight’s detention as 20 to 30 minutes. It was later learned that Blight had lived in and owned the mobile home for many years. Police found drugs and ammunition, among other things.
Blight filed a complaint against the City of Manteca (“City”) and individually named Manteca Police Department detectives and sergeants (“Defendants”), asserting Fourth Amendment violations under 42 U.S.C. section 1983, and other claims. The District Court granted Defendants’ motion for summary judgment. Blight appealed.
Held: Blight alleged that the search warrant to investigate an illegal marijuana operation was overbroad because there was no probable cause to search her mobile home, which was separate from the suspect’s main house and had a separate address. The Ninth Circuit Court of Appeals observed that the issuing judge reasonably relied on Detective Garcia’s description of the informant’s statements given the informant’s reliability, trustworthiness, the detailed firsthand information provided by the informant, and the detective’s own extensive experience in narcotics-related investigations and searches.[5]
The Court explained that in its prior decision United States v. Alexander, 761 F.2d 1294, 1301 (9th Cir. 1985), the Ninth Circuit held that “a warrant is valid when it authorizes the search of a street address with several dwellings if the defendants are in control of the whole premises, if the dwellings are occupied in common, or if the entire property is suspect.” Id.
The Court found here that there was a substantial basis for the judge who issued the warrant to believe Ford was in control of the whole premises because the informant said Ford owned the entire property and said Serrano lived in the mobile home in order to help Ford with his drug operation. Also, there was a fence surrounding the whole property and a walkway between the main house and the mobile home. The Court also found a substantial basis for the judge to believe the entire property was suspect, based on the informant’s information that marijuana was grown outside and then processed in the buildings on the property. Garcia corroborated this setup based on his experience. Thus, the Court determined there was probable cause to issue a warrant authorizing a search of the entire property, including the mobile home; the search warrant’s breadth was “co-extensive with the scope of this probable cause,” and the warrant was not overbroad. The Court added that the probable cause to search the mobile home did not depend on Serrano living there, as Blight argued; the officers could still reasonably believe that the entire property was suspect and that the property was still under Ford’s common control, regardless of whether he was on the property at the time of the search, and regardless of who was found in the mobile home.
Lastly, the Court rejected Blight’s contention that the duration of the search was unreasonable under the Fourth Amendment because of her age (74), the lack of evidence linking her to the marijuana operation, and the length of time of the detention. The Court held that given that the officers had a warrant to search the mobile home, they had categorical authority to detain Blight, the occupant of the mobile home at the time of the search. The officers also did not detain plaintiff in an unreasonable manner and her detention of no more than one hour was not an unreasonable length of time given the circumstances. Accordingly, the Ninth Circuit affirmed the District Court’s grant of summary judgment to Defendants.
D. Ninth Circuit rules that District Court abused its discretion in precluding testimony concerning mental illness of decedent of which officer was unaware at time of incident.
Crawford v. City of Bakersfield, 2019 U.S. App. LEXIS 37056 (9th Cir. 2019)
Facts: In 2014, Elsa Torres called the police and told dispatch there was a man “trying to burn us.” She also relayed that Dozer was now at a minimart “knocking all the stuff down.” Bakersfield Police Officer Aaron Stringer was assigned the call where he was informed that “a subject at the gas station … had poured gasoline on a woman and tried to light her on fire” and that the woman’s children were in the car too. Upon arriving on scene, Officer Stringer spoke with Torres. He did not observe any burns on her, but a witness corroborated that Dozer had poured gasoline on Torres.
Stringer observed Dozer move towards the minimart. There were people approximately twenty feet away from Dozer. Officer Stringer observed Dozer “pacing around” and looking “very agitated.” The officer thought Dozer’s behavior was “erratic” and “aggressive in general.” Approaching Dozer to hear what he was saying, Officer Stringer heard Dozer say. “You want to do this. Let’s go.” Officer Stringer responded, “No, let’s not do this. I just want to talk to you.” Based on Dozer’s “amped up” behavior and his “angry” demeanor, Officer Stringer concluded that Dozer was challenging him and that Dozer was under the influence of a narcotic. Officer Stringer also concluded that the situation would “most likely…escalate quickly,” and thus requested an expedited back up.
Dozer stopped approximately twenty feet away from Officer Stringer, whereupon Officer Stringer ordered him to get on the ground. Upon hearing Officer Stringer’s order, Dozer began picked up a horseshoe-shaped metal bike lock, raised it over his head and started “charging” towards the officer. Officer Stringer ordered Dozer to drop the lock as he attempted to back up, and then drew his firearm as Dozer continued charging toward him. Officer Stringer also had a Taser, baton and pepper spray on his person, but because of Dozer’s fast approach with the metal bike lock, Officer Stringer asserted that he did not have enough time to deploy any of these devices. Within one minute of his arrival, Officer Stringer shot Dozer as Dozer advanced toward him with the metal bike lock. Another witness stated that Dozer was approximately five to ten feet away from Officer Stringer when Dozer was shot.
Plaintiff Leslie Crawford, Dozer’s mother, sued the City of Bakersfield, California and Bakersfield police officer Aaron Stringer (together, “Defendants”). At trial, the plaintiff’s attorney attempted to introduce testimony from Crawford, regarding her son’s past ordeals with mental illness and the various treatment programs he had attended over the years. Plaintiff’s counsel was also going to have her testify that Dozer was “schizophrenic.” The District Court barred Crawford from testifying about her past observations regarding Dozer and his mental illness since Officer Stringer knew nothing about Dozer’s past. The District Court ruled that her personal observations were not relevant as to whether the police officer should have known that Dozer’s behavior could have been caused by mental illness. However, the District Court permitted evidence concerning whether Dozer’s behavior was due to drugs or to mental illness because the evidence was relevant as to whether the force used by the police officer was reasonable. Ultimately, the jury found in favor of Officer Stringer. Plaintiff appealed.
Held: The Ninth Circuit Court of Appeals determined that the District Court abused its discretion in denying Plaintiff the opportunity to testify concerning her past observations of her son and the treatment for mental illness that he had received. The Court reversed the case and remanded it for a new trial.
The Court noted that Crawford alleged that “that Stringer used excessive force in violation of the Fourth Amendment and that his actions were negligent under California law.” The Court acknowledged that the encounter between the officer and Dozer required a Graham v. Connor[6] analysis with respect to the excessive force claim. The Court observed that “[i]n evaluating a Fourth Amendment excessive force claim, the jury asks ‘whether the officers’ actions were ‘objectively reasonable’ in light of the facts and circumstances confronting them.’” [Citations omitted.][..]” Vos v. City of Newport Beach, 892 F.3d 1024, 1030 (9th Cir. 2018) (quoting Graham, 490 U.S. at 396).” The Court further observed that “[t]he ‘reasonableness’ of a particular use of force must be judged from the perspective of a reasonable officer on the scene, rather than with the 20/20 vision of hindsight.’” Id. at 1031 (quoting Graham, 490 U.S. at 396).” The Court noted that the “‘three primary factors’ in assessing the government’s interest are (1) ‘the severity of the crime at issue,’ (2) ‘whether the suspect poses an immediate threat to the safety of the officers or others,’ and (3) ‘whether the suspect is actively resisting arrest or attempting to evade arrest by flight.’” Id. at 1033.
As to the claim for negligence under California law, the Court observed that, “Crawford’s wrongful death claim turned on similar considerations. To prevail on her negligence theory, Crawford had to show that Stringer ‘had a duty to use due care, that he breached that duty, and that the breach was the proximate or legal cause of the resulting injury.’” Hayes v. Cty. of San Diego, 57 Cal. 4th 622, 160 Cal. Rptr. 3d 684, 305 P.3d 252, 255 (Cal. 2013) (quoting Nally v. Grace Community Church, 47 Cal. 3d 278 (Cal. 1988)). The Court further noted that, “California’s totality-of-the-circumstances inquiry includes pre-shooting circumstances and thus ‘is broader than federal Fourth Amendment law, which tends to focus more narrowly on the moment when deadly force is used.’” Id. at 263.
The Court also stated that, “[t]he district court correctly held that evidence of Dozer’s mental illness was relevant because the reasonableness of Stringer’s use of deadly force depended in part on whether he knew or should have known that Dozer’s behavior was caused by mental illness.” The Court indicated that “our precedent establishes that if officers believe a suspect is mentally ill, they ‘should make a greater effort to take control of the situation through less intrusive means.’“ Vos, 892 F.3d at 1034 n.9 (alterations omitted) (quoting Bryan v. MacPherson, 630 F.3d 805, 829 (9th Cir. 2010)).” The Court concluded: “‘[W]hether the suspect has exhibited signs of mental illness is one of the factors the court will consider in assessing the reasonableness of the force used, in addition to the Graham factors, the availability of less intrusive force, and whether proper warnings were given.’ Id.”
In applying these principles, the Court stated, “The district court abused its discretion, however, in holding that Crawford’s proposed testimony was irrelevant on the ground that Stringer, at the time of the shooting, did not know about the past events to which Crawford would have testified. Crawford’s testimony regarding Dozer’s past behavior and treatment was relevant to whether he was in fact mentally ill at the time. Evidence that Dozer had previously behaved in ways consistent with mental illness and had been taken to mental health providers for treatment, makes it more likely that he continued to suffer from mental illness on the day of the shooting. In turn, whether Dozer was in fact mentally ill that day is relevant to whether he would have appeared to be mentally ill, and thus to whether Stringer knew or should have known that Dozer was mentally ill; after all, the existence of some underlying fact tends to make it more likely that a person knew or should have known that fact.”
Thus, according to the Court, Crawford’s testimony about Dozer’s past behaviors and treatment was relevant even though the officer knew absolutely nothing about any prior behavior. Moreover, the Court found that the District Court’s error in limiting the testimony of Crawford undercut her ability to prove a key component of her case under a negligence theory of recovery.
For a more detailed discussion of this case, please see Client Alert Vol. 35, No. 41, available at www.jones-mayer.com.
E. Gunshots fired outside a dwelling do not justify a warrantless search inside the dwelling; the police must articulate specific facts that establish an emergency situation is occurring inside the dwelling.
People v. Rubio, 43 Cal. App. 5th 342 (1st Dist. 2019)
Facts: In October 2016, East Palo Alto Police Department Sergeant Clint Simmont received an alert notifying him of a shooting in a high-crime neighborhood. The alert indicated two separate bursts of gunfire had occurred at a particular address. First, five rounds came from the edge of the garage driveway area of 2400 Gonzaga, then one minute later came six rounds at “the edge of the driveway, near the sidewalk.” Sergeant Simmont and four other officers arrived near the location where the shots were fired, parking 60-70 feet from the edge of the driveway. Witnesses reported gunfire, pointing to the driveway at 2400 Gonzaga. Officers approached the house, and at the top of the driveway near the garage found a spent shell casing. A known belligerent emerged through a fence gate shouting obscenities and taking a combative stance. The officers arrested him and put him in a patrol car. Two more spent casings were found behind the gate. Sergeant Simmont pounded loudly on the door by the side of the garage and announced police presence four or five times, but there was no response. Sergeant Simmont heard movement inside that sounded like someone barricading the door.
The officers spoke to several people at the front door of the residence, including the father of defendant Adan Rubio who said he did not know if anyone had been shot. Inside the house,[7] the father said that his son Rubio was inside the garage. Sergeant Simmont asked for permission to search the garage, to which the father responded, “Sure.” As the father was getting the garage key, Rubio emerged from the garage and closed the door to the garage, which automatically locked behind him. He approached the officers with his hands in his pockets, yelling for them to shoot him. Officers arrested Rubio and placed him in a patrol car.
Sergeant Simmont testified later that he had no reason to believe anyone had been shot, but he “didn’t have anything to rule that out, either,” so he and another officer kicked the door open and entered the garage. The garage was actually a converted apartment. The officers did not find anyone inside the apartment, but did find “an explosive device on a shelf” and an operable .45 semiautomatic pistol on the shelf in an open closet. The officers cleared the house of all occupants, and later a search warrant was obtained. Officers executed the warrant, finding additional firearms, ammunition, and “a clear, rock-like substance” in a shot glass.
The San Mateo County District Attorney filed a six-count felony information, charging Rubio with various firearm and controlled substance offenses. A trial court denied Rubio’s motion to suppress the evidence found in his apartment, citing the emergency aid doctrine of the community caretaking exception. Thereafter, Rubio entered a plea of no contest and was convicted by plea to possession of a controlled substance with a firearm.[8] He was sentenced to three years of supervised probation, subject to conditions including nine months in the county jail or a residential substance abuse treatment program. Rubio appealed.
In July 2019, the California First District Court of Appeal affirmed his conviction, relying on the community caretaking exception articulated in People v. Ray (1999) 21 Cal.4th 464 and other cases to uphold the search. Less than four weeks after the First District’s decision, the California Supreme Court decided People v. Ovieda (2019) 7 Cal.5th 1034, in which it disapproved the lead opinion in Ray to the extent the prior decision had relied on an expansive reading of the community caretaking exception to allow warrantless entry into a home. (Ovieda, supra, 7 Cal.5th at p. 1038.) The First District then, on its own motion, granted rehearing of this case and asked the parties to brief the significance of Ovieda.
Held: The First District explained, “[w]ith few exceptions, the question whether a warrantless search of a home is reasonable and hence constitutional must be answered no.” (Kyllo v. United States (2001) 533 U.S. 27, 31.) The Attorney General asserted that the emergency aid exception and the exigent circumstances exception (established exceptions to the Fourth Amendment’s warrant requirement) each justified the warrantless intrusion here. The Court disagreed.
The Court observed that the need to render emergency aid justifies warrantless entry only where officers have “‘“specific and articulable facts”’” showing that an intrusion into the home was necessary. (Ovieda, supra, at p. 1043.) It was not enough, stated the Court, that officers sought to rule out “the possibility that someone … might require aid.” (Id. at p. 1047.) The First District declared that what was “missing in this case are specific and articulable facts that would lead a reasonable person to conclude shots fired outside defendant’s garage apartment required breaking down the door to rescue someone inside his home.” The Court concluded that the emergency aid exception did not apply because the police had no reasonable basis to conclude there was anybody inside the apartment who was in danger or distress.
Addressing the exigent circumstances exception, the First District noted that the Supreme Court has defined exigent circumstances as “an emergency situation requiring swift action to prevent imminent danger to life or serious damage to property, or to forestall the imminent escape of a suspect or destruction of evidence.” (People v. Ramey (1976) 16 Cal.3d 263, 276.) “[E]ntry into a home based on exigent circumstances requires probable cause to believe that the entry is justified by … factors such as the imminent destruction of evidence or the need to prevent a suspect’s escape.” People v. Thompson (2006) 38 Cal.4th 811, 818.
Here, the Court found the totality of the circumstances did not establish that when the police entered Rubio’s garage apartment they had probable cause to believe a shooter would be found there was hiding out in the apartment or that evidence of criminal conduct would be destroyed before the police had a chance to obtain a warrant. The Court explained that although much evidence established that a shooting had occurred outside the apartment, no witnesses or other evidence placed a gunman inside the residence at any time before the police broke down Rubio’s door. The Court stated that after Rubio emerged and was detained, police had no reason to believe anybody—shooter or otherwise—remained in the garage. The Court thus concluded that the exigent circumstances exception did not apply. Accordingly, the First District Court of Appeal reversed, and remanded to allow Rubio to withdraw his plea.
F. Welfare and Institutions Code section 625.6 is not subject to the exclusionary rule; a minor’s statements are admissible despite the police not providing minor with counsel prior to questioning as required by statute.
In re Anthony L., 43 Cal. App. 5th 438 (1st Dist. 2019)
Facts: Security camera footage recorded five teenagers having words with a 61-year old man in his driveway, then repeatedly hitting and kicking him before running away. One of the juvenile’s teachers was shown the video and still photos from the video and identified then-15-year-old Anthony L. Minor (“Minor”) as one of the assailants. The teacher recognized him by the gray hooded sweatshirt he was wearing and the shape of his face. Sergeant Christopher Smith of the San Francisco Police Department contacted Minor’s mother and told her he was investigating a crime and needed to meet with Minor and his mother. Officer Martinez, who spoke Spanish, accompanied Sergeant Smith in February 2018 to the home, with Martinez’s body camera recording the events.
The mother led them to Minor’s bedroom, where he was sleeping. The mother stayed in the room. Smith handed Minor a “Juvenile Know Your Rights” form and told Minor, “I’m going to read you your rights just because you’re a juvenile… you’re not under arrest.” Smith read Minor rights issuing from Miranda v. Arizona (1966) 384 U.S. 436. When asked if he understood each statement, Minor answered “Yes.”
Smith then questioned Minor about the incident. Minor was mostly reticent but admitted to being at the location, and to remembering what he and his friends did to the man. Minor eventually admitted that he kicked the car and that he hit the victim because the victim made him upset. Smith then placed Minor under arrest.
A juvenile wardship petition alleged Minor committed assault with force likely to cause great bodily injury. Minor moved to exclude his statements to the police on constitutional and statutory grounds, but the juvenile court denied the motion. The juvenile court found no violations of Miranda nor Welfare and Institutions Code section 625.6 as Minor had alleged. The Court found the allegations of the petition true, and then declared Minor a ward and placed him on probation. Minor appealed the juvenile court’s order.
Held: On appeal, Minor argued that the juvenile court should have excluded his statement to police officers because the officers improperly questioned him before he consulted with an attorney in violation of Section 625.6 and that the juvenile court erred in, among other things, failing to take that fact into account in admitting his statements.
The California First District Court of Appeal considered Minor’s appeal. As an initial matter, the Court assumed “[f]or the purposes of [its] analysis” that the juvenile court was correct in finding the interview custodial, although the question of whether a reasonable 15-year-old in these circumstances would have felt free to end the questioning and leave the room, or have the officers leave, was “a close issue.”
The Court observed that Section 625.6(a) provides that, “[p]rior to a custodial interrogation, and before the waiver of any Miranda rights, a youth 15 years of age or younger shall consult with legal counsel…” Subdivision (b) directs that “[t]he court shall, in adjudicating the admissibility of statements of a youth 15 years of age or younger made during or after a custodial interrogation, consider the effect of failure to comply with subdivision (a).”
The Court observed that the officers did not arrange for Minor to consult with counsel before questioning him. However, the Court also observed that the “Truth-in-Evidence” provision of the California Constitution generally provides that “…relevant evidence shall not be excluded in any criminal proceeding … or in any trial or hearing of a juvenile for a criminal offense, whether heard in juvenile or adult court. …” (Cal. Const., art. 1, section 28(f)(2).) The Court clarified that under this provision, relevant evidence may be excluded only if exclusion is required by the United States Constitution.[9] (In re Lance W. (1985) 37 Cal.3d 873, 890.) The Court explained that the Truth-in-Evidence law did not authorize exclusion of evidence as a remedy for violation of a state statute. Because “the Truth-in-Evidence provision [citation] [left] [the Court] with no power to exclude a minor’s self-incriminatory statements except as federal law requires” (People v. Lessie (2010) 47 Cal.4th 1152, 1169), the Court concluded that state Section 625.6 did not authorize a court to exercise its discretion to exclude statements if those statements are admissible under federal law.
Turning to Minor’s substantive challenges to the admission of his statements, the Court found no violation of Miranda because Minor validly waived his Miranda rights. The Court explained that Minor willingly answered questions after acknowledging that he understood his rights, and nothing in the record persuaded the court that he did not understand his rights to silence and counsel and the consequences of waiving those rights. Nor was there any coercion, as Minor argued, because Minor readily acknowledged the incident as soon as Smith asked him if he remembered it. The Court therefore found no basis to conclude Minor’s will was overborne by deception or trickery, and concluded that the juvenile court properly admitted his statements.
The First District accordingly affirmed the juvenile court’s order. The Court also struck an impermissibly vague probation condition and remanded on that basis.
G. Officer not entitled to qualified immunity where it was clearly established that use of a chokehold on non-resisting, restrained person violates Fourth Amendment’s prohibition on use of excessive force.
Tuuamalemalo v. Greene, 2019 U.S. App. LEXIS 38360 (9th Cir. Dec. 24, 2019)
Facts: In January 2014, police officer Shahann Greene was a member of the Homeland Saturation Team of the Las Vegas Metropolitan Police Department (“LVMPD”), a unit specializing in riot control. A call came in requesting backup at a music venue in the Hard Rock Hotel and Casino to ensure a fight would not break out. During a concert at the venue, Ian Tuuamalemalo was having drinks and listening to the music along with other people in an upstairs booth.
After Greene and other LVMPD officers arrived at the hotel, an officer approached a member of Tuuamalemalo’s party. Tuuamalemalo approached the officers and tried to speak with them. A surveillance video showed police officers and members of Tuuamalemalo’s group pushing one another. Tuuamalemalo was pushed by one of the officers. After Tuuamalemalo and other patrons were moved outside the venue but still inside the hotel, they were followed closely by officers. As Tuuamalemalo was pushed along the hallway with a mixed group of patrons and police officers, he collapsed. With the help of officers and patrons, Tuuamalemalo was able to stand up. He began walking toward the hotel exit with help from two friends, one on each side. A group of officers followed Tuuamalemalo and his friends as they walked toward the exit. A police sergeant pushed through the group and grabbed the back of Tuuamalemalo’s shirt. The video showed Tuuamalemalo turning around. The sergeant then punched Tuuamalemalo on the left side of his face and five officers took Tuuamalemalo to the ground. Officer Greene put Tuuamalemalo in a chokehold.
The video showed Tuuamalemalo on the floor with a number of officers on top of him. Nothing in the video showed any resistance by Tuuamalemalo. Officer Greene’s chokehold was a lateral vascular neck restraint (“LVNR”), which restricts the flow of blood to the brain rather than restricting air flow. The chokehold rendered Tuuamalemalo unconscious. It took some time and several attempts to revive him. Tuuamalemalo was then arrested. All charges were ultimately dismissed.
Tuuamalemalo sued under 42 U.S.C. section 1983, alleging excessive force. Officer Greene moved for summary judgment based on qualified immunity. The District Court denied Greene’s motion, although the court granted summary judgment to LVMPD and other officers. The claims against Greene all related to his use of the chokehold on Tuuamalemalo. Greene brought an interlocutory appeal of the denial of his motion for summary judgment.
Held: The Ninth Circuit Court of Appeals explained that to determine whether Officer Greene was entitled to summary judgment based on qualified immunity under Section 1983, two questions must be addressed. First, “[t]aken in the light most favorable to the party asserting the injury, do the facts alleged show the officer’s conduct violated a constitutional right?” Scott v. Harris, 550 U.S. 372, 377 (2007) (quoting Saucier v. Katz, 533 U.S. 194, 201 (2001)). Second, “whether the right was clearly established . . . in light of the specific context of the case.’“ Id. (quoting Saucier, 533 U.S. at 201). The Court added that it had discretion to decide the second question first, thereby avoiding the first question.[10] The Court noted that Officer Greene did not dispute that, viewing the evidence in the light most favorable to Tuuamalemalo, his use of the chokehold violated the Fourth Amendment. The Ninth Circuit therefore considered whether Greene’s use of a chokehold violated a clearly established right in light of the specific context of the case.
The Court explained that the Ninth Circuit’s decision in Barnard v. Theobald, 721 F.3d 1069 (9th Cir. 2013), squarely addressed the constitutionality of the use of a chokehold on a non-resisting person. Barnard affirmed a jury’s finding that when officers in that case placed the non-resisting, restrained plaintiff in a chokehold and then pepper sprayed him, the officers’ use of force violated the Fourth Amendment. Id. at 1076. The Circuit had earlier held in Drummond ex rel. Drummond v. City of Anaheim, 343 F.3d 1052, 1059 (9th Cir. 2003), that “any reasonable person . . . should have known that squeezing the breath from a compliant, prone, and handcuffed individual despite his pleas for air involves a degree of force that is greater than reasonable.”
Here, the Court held that viewing Tuuamalemalo’s version of the facts in the light most favorable to him, he was not resisting arrest when Officer Greene placed him in a chokehold. Further, there was little chance he could initiate resistance with five other officers fully restraining him and pinning him to the ground. The Court concluded that given the state of the law in this Circuit, it was clearly established that the use of a chokehold on a non-resisting, restrained person violated the Fourth Amendment’s prohibition on the use of excessive force. With respect to Tuuamalemalo’s claims under state law, the Court further held that the same version of the facts that justified the District Court’s decision to deny Officer Greene qualified immunity under Section 1983 precluded a grant of immunity under Nevada law. The Court accordingly affirmed and remanded.
EVIDENCE
California Supreme Court concludes that a secret recording of a phone conversation was not barred by a privacy provision because that provision had been repealed by the “Right to Truth-in-Evidence” provision in the state constitution.
People v. Guzman, 8 Cal. 5th 673 (2019)
Facts: 10-year-old E.F. confided to her adult neighbor Lorena that Lorena’s uncle, defendant Alejandro Guzman, had inappropriately touched E.F. In a separate later incident, 12-year-old M.M told her mother Esperanza that, during a sleepover with Guzman’s daughter, Guzman had touched M.M. and made M.M. touch him. M.M. also told Esperanza that Lorena, who was M.M.’s cousin, had warned M.M. about Guzman. Esperanza spoke with Lorena by phone, but did not tell Lorena that the call was being recorded.
Esperanza did not inform law enforcement of the recording’s existence until the day jury selection in Guzman’s trial was to begin. Upon learning of the recording, the prosecution informed the court that it intended to use the recording to cross-examine Lorena, who was expected to testify for the defense. Defense counsel objected, arguing that the recording was categorically inadmissible under Penal Code section 632(d), which prohibits the admission of “evidence obtained … in violation of this section … in any judicial, administrative, legislative, or other proceeding.” The trial court determined instead that Section 632(d) had been repealed by the “Right to Truth-in-Evidence” provision of the California Constitution, which was enacted as part of Proposition 8 in 1982.
A transcript of the recording was subsequently admitted into evidence. The jury thus heard Lorena making various statements that were unfavorable to Guzman. For example, Lorena said that she did not “feel good around [Guzman], like when I’m wearing shorts or anything.” Lorena further said that although Guzman “hasn’t touched me anywhere else like…” on her private parts, she knew “he’s capable of doing that” and “that’s why [she] believe[s] what [M.M]’s saying.” Moreover, although at trial Lorena denied that she had warned M.M. about Guzman, in her phone conversation, she appeared to admit that she “told [M.M.] … to be careful.” After hearing from the various witnesses, the jury convicted Guzman of two counts of committing a lewd and lascivious act upon a child.
Guzman appealed, arguing that the trial court prejudicially erred in admitting the recording because the admission “contravened the exclusionary rule stated in Penal Code section 632, subdivision (d).” The Court of Appeal rejected the argument, finding that within the criminal context, Section 632(d) had been rendered inoperative by Proposition 8. The appellate court thus concluded the recording was properly admitted and affirmed Guzman’s convictions.
Held: The California Supreme Court granted review to determine the continued viability of Section 632(d) in light of the limits placed on the exclusion of evidence by the “Right to Truth-in-Evidence” provision of the Constitution.
The Court noted that the Legislature enacted Section 632 in 1967 as part of the Invasion of Privacy Act.[11] “The purpose of the act was to protect the right of privacy by, among other things,” “replacing prior laws that permitted the recording of telephone conversations with the consent of [only] one party to the conversation.” (Flanagan v. Flanagan (2002) 27 Cal.4th 766, 768–769.) Subdivision (d) of Section 632, the exclusionary remedy of the section, provides: “Except as proof in an action or prosecution for violation of this section, evidence obtained as a result of eavesdropping upon or recording a confidential communication in violation of this section is not admissible in any judicial, administrative, legislative, or other proceeding.” (Section 632(d).)
In 1982, the voters approved Proposition 8, thereby amending the state Constitution. Proposition 8 contained a provision known as the Right to Truth-in-Evidence, now codified at article I, section 28(f)(2). In relevant part, the provision states: “Except as provided by statute hereafter enacted by a two-thirds vote of the membership in each house of the Legislature, relevant evidence shall not be excluded in any criminal proceeding, including pretrial and post conviction motions and hearings, or in any trial or hearing of a juvenile for a criminal offense, whether heard in juvenile or adult court. Nothing in this section shall affect any existing statutory rule of evidence relating to privilege or hearsay, or Evidence Code Sections 352, 782 or 1103.” (Cal Const., Art. I, section 28(f)(2) (hereafter, “Section 28(f)(2)”).)
The Court explained that it would pursue two separate inquiries to determine whether the Right to Truth-in-Evidence provision abrogated the exclusionary remedy of Section 632(d) as that remedy applies to criminal proceedings. First, the Court considered whether the constitutional provision repealed Section 632(d) at the moment of its passage in 1982. If so, the second inquiry would examine whether the Legislature revived Section 632(d) by a two-thirds vote any time thereafter, thus restoring the section’s prohibition against admission of secret recordings.
The Court reminded that the “the express, unambiguous language of [S]ection 28[(f)(2)]” (In re Lance W. (1985) 37 Cal.3d 873, 886) states that “[e]xcept as provided … , relevant evidence shall not be excluded in any criminal proceeding.” (Section 28(f)(2).) The Court determined that “[t]his clearly stated command has only one apparent meaning”—to prohibit the exclusion of evidence at criminal proceedings except on those grounds expressly contemplated by the constitutional provision. (Lance W., supra, 37 Cal.3d at p. 886.) Section 632(d), the Court found, was not exempt from the Right to Truth-in-Evidence provision because Section 632(d) did not fit within any of those grounds: Section 632(d) was neither an “existing statutory rule of evidence relating to privilege or hearsay,” nor “Evidence Code Sections 352, 782 or 1103.” (Section 28(f)(2).)
From the express language of Section 28(f)(2), the Court determined that to the extent that Section 632(d) demanded the suppression of relevant evidence at criminal proceedings, it was superseded when the voters approved the constitutional amendment in 1982. (See People v. Wheeler (1992) 4 Cal.4th 284, 291 [“[S]ection 28[(f)(2)] supersedes all California restrictions on the admission of relevant evidence except those preserved or permitted by the express words of [S]ection 28[(f)(2)] itself”].) Moreover, the Court’s review of the history of the Right to Truth-in-Evidence provision supported the Court’s view of the finding that Section 632(d) was abrogated by the Section 28(f)(2), including from the ballot materials[12] related to Proposition 8. “In essence,” the Supreme Court explained, “voters were informed that Proposition 8 would abrogate [S]ection 632(d)—and they approved.”
The Court thus concluded that the passage of the Right to Truth-in-Evidence provision in 1982 repealed Section 632(d) to the extent the section applied to criminal proceedings. Because Section 28(f)(2) provides that exclusionary remedies may be created, or recreated, “by a two-thirds vote of the membership in each house of the Legislature,” the Court reached its second inquiry: whether the Legislature revived Section 632(d) by a two-thirds vote any time thereafter.
The Supreme Court noted that in 1985, 1990, 1992, and 1994, the Legislature—by at least a two-thirds vote of the membership of both the Assembly and Senate—amended one or more subdivisions of Section 632 and reenacted the section in its entirety. However, the Court determined that each time, the exclusionary remedy of subdivision (d) of Section 632 was reenacted only as an incident to other provisions of Section 632 being amended. The Court therefore found the exclusionary remedy was not revived by the section amendments.
The Court noted that Article IV, section 9 of the California Constitution requires an amended statute to be reenacted, but a reenacted statute may be amended in only some parts and not others. Government Code section 9605 provides that “[i]f a section or part of a statute is amended, it is not to be considered as having been repealed and reenacted in the amended form. The portions that are not altered are to be considered as having been the law from the time when those provisions were enacted.” (Government Code section 9605(a).) The Court clarified that “[n]either article IV, section 9, nor Government Code section 9605, contemplates reenactment of the unchanged portions of an amended statute in the form of its original enactment if there have been intervening amendments of those portions.” (Lance W., supra, 37 Cal.3d at p. 895, fn. 18.) Instead, “[t]he clear intent of [][S]ection 9605 is to codify the rule that the unchanged portions of the newly amended statute be ‘reenacted’ as they existed immediately prior to the amendment.” (Id., at p. 895, fn. 18, italics added.)
Thus, the Supreme Court determined that mere reenactment of section 632 did not necessarily revive the exclusionary rule of Section 632(d). To find that a subsequent amendment of Section 632 effected the revival of its exclusionary provision, the Court stated that there must be something in the “language, history, or context of the amendment[]” to support the conclusion that the Legislature intended such a result. (In re Christian S. (1994) 7 Cal.4th 768, 771.) Absent evidence of such an intent, the Court continued, the reenactment of Section 632 simply reinstated the statute as it existed at the time of reenactment—i.e., the statute, as limited by the Right to Truth-in-Evidence provision to include no exclusionary remedy.
In 1985, the Legislature amended subdivision (a) of Section 632, accomplishing its purpose – protecting privacy of then-new cell phone communications – primarily through the enactment of Section 632.5. No changes were made to Section 632(d), but to effectuate the change to section 632, subdivision (a), the Legislature reenacted section 632 in its entirety. The Court found nothing in the language, legislative history, or surrounding context of the 1985 amendment that suggested that the Legislature intended to overcome the Right to Truth-in-Evidence provision and revive section 632(d). The Court came to the same conclusion for the 1990 and 1992 amendments reenacting Section 632, neither of which mentioned Section 632(d) but instead involved only “stylistic” or “technical, nonsubstantive” changes. Thus, Section 632(d) remained abrogated by Proposition 8, despite these later amendments. The California Supreme Court had thus resolved the second inquiry, concluding that the subsequent amendments of Section 632 did not revive the exclusionary remedy. Thus, the Supreme Court concluded that the exclusionary provision of Section 632(d) did not bar the admission of the recording at Guzman’s criminal trial, and, accordingly affirmed the judgment of the Court of Appeal.
PUBLIC EMPLOYMENT
A. A public employee union need not exhaust administrative remedies before filing a lawsuit when the administrative process does not allow a class grievance on behalf of all represented employees.
Ass’n for L.A. Deputy Sheriffs v. Cnty. of L.A., 42 Cal. App. 5th 918 (2nd Dist. 2019)
Facts: The Association for Los Angeles Deputy Sheriffs (“ALADS”) represents nonmanagement deputy sheriffs and peace officers employed in the County of Los Angeles (“County”) District Attorney’s office. Management peace officers in those law enforcement agencies are represented by another employee collective bargaining unit, the Los Angeles County Professional Peace Officers Association (“PPOA”). A November 2015 memorandum of understanding between ALADS and the County (the “MOU”) described compensation provisions which required the County to match compensation increases given to other County safety employee unions. The MOU was in effect from February 1, 2015, to January 31, 2018.
In May 2017, the County Board of Supervisors approved a salary adjustment for sworn management peace officers employed by the sheriff’s department and the district attorney’s office and represented by PPOA. Pursuant to that adjustment, such employees who have a supervisory certificate from the California Commission on Peace Officers Standards and Training (“POST”) received an additional 1.5 percent in salary effective July 1, 2017, and an additional 2.0 percent in salary effective July 1, 2018.
ALADS considered that because “the vast majority (if not all) of the individuals represented by PPOA possess or can readily obtain Supervisory POST Certificates,” the provision of additional Supervisory POST pay constituted a compensation increase for those represented by PPOA (which, by the terms of the MOU, would require the County to match to ALADS). In June 2017, ALADS initiated two grievances “on behalf of all of its members,” although ALADS “[did] not concede that the grievance procedures set forth in the ALADS MOU provide adequate administrative remedies).”
After proceeding through all the preliminary steps of the grievance process, and after the Los Angeles County Employee Relations Commission (“ERCOM”) had scheduled an arbitration hearing in October 2017, the County allegedly “objected to ALADS’ requests for arbitration on the grounds that ALADS could not initiate a grievance on behalf of the individuals it represents.” The County said this objection did not concern ALADS’s right to represent its members in the grievance process, but rather to its right to bring a representative grievance that purported to be on behalf of all of its members (i.e., a class grievance).
At the hearing, ERCOM directed that the grievances as presented be scheduled for arbitration, and advised that the arbitrator could rule on the County’s objections. The arbitrator handling the grievances subsequently took the scheduled arbitrations off calendar as a result of the County’s refusal to comply with a discovery order.
In November 2017, ALADS sued the County concerning the County’s alleged breach of the MOU. The trial court rejected ALADS’s contention that the administrative procedure available under the MOU was inadequate because it did not permit class grievances. The court sustained the County’s demurrer without leave to amend on the sole ground that ALADS failed to exhaust the administrative remedies available under the labor agreement before filing suit. ALADS appealed.
Held: The California Second District Court of Appeal explained that the failure to arbitrate in accordance with the grievance procedures in a collective bargaining agreement is “analogous to the failure to exhaust administrative remedies.”[13] “In general, a party must exhaust administrative remedies before resorting to the courts.”[14] The Court explained that this exhaustion doctrine promoted administrative autonomy[15] and judicial efficiency.[16] However, the Court noted that the exhaustion doctrine does not apply when the available administrative remedy is inadequate or when it is clear that pursuing that remedy would be futile.[17] ALADS argued on appeal that the exceptions applied here.
The Court noted that the grievance procedure set forth in the MOU provided that only grievances that “are brought by an employee who was represented by ALADS in all steps of the grievance procedure may be submitted to arbitration hereunder.” ALADS argued that because classwide relief was not available through the MOU’s grievance process; to obtain the benefits it claimed were due to its entire membership, it would need to prosecute separate individual grievance actions on behalf of each of its 7,800 members. The Second District agreed that “such an onerous and time-consuming process precludes adequate relief.”
The Court explained that it was “undisputed that classwide relief is not available under the administrative procedures set out in the MOU. Nor does the County dispute ALADS’s claim that, although the same contract interpretation issue would arise in each individual grievance, a decision on that issue in one member’s proceeding would not have any binding effect on other members’ claims.” The Court observed that in Tarkington v. California Unemployment Ins. Appeals Bd. (2009) 172 Cal.App.4th 1494, the court summarized the law on exhaustion of administrative remedies when a judicial action seeks relief on behalf of a class. The Tarkington court explained that, if the available administrative remedies “do provide classwide relief, than [sic] at least one plaintiff must exhaust them before litigation may proceed. If the remedies do not provide classwide relief, then no plaintiff need exhaust them before suing.” (Id. at p. 1510.)
The Second District explained that Tarkington, along with Rose v. City of Hayward (1981) 126 Cal.App.3d 926 and Ramos v. County of Madera (1971) 4 Cal.3d 685, established that administrative relief is not adequate in a class or representative action if it does not apply to the class. Here, the Court concluded that because the available administrative procedures did not provide classwide relief, “then no plaintiff need exhaust them before suing.” (Tarkington, supra, 172 Cal.App.4th at p. 1510.)
The County argued that this was not a class action. However, the Second District explained, it was a representative action. Like the named plaintiff in a class action, ALADS sought relief on behalf of a designated group of persons (i.e., its members). The Court explained that the “material issue is whether the relief available through the administrative process would apply to the class of employees that ALADS represents. It is undisputed that it would not.”
The County also argued that ALADS bargained for the administrative procedure that it later sought to avoid, but the Court found it unreasonable to assume that ALADS agreed to pursue thousands of individual grievances before seeking a judicial ruling that the County had breached its agreement to provide additional compensation to all its members.
The Court accordingly reversed the trial court’s judgment and ruling that ALADS must exhaust its administrative remedies under the MOU before pursuing its action.
B. City’s provision of a hearing before the Board of Rights was the administrative appeal Government Code section 3304(b) requires.
Gonzalez v. City of L.A., 42 Cal. App. 5th 1034 (2nd Dist. 2019)
Facts: In October 2010, Cesar Gonzalez was a Los Angeles Police Department (“LAPD”) sergeant living in San Bernardino County. In October 2010, the San Bernardino Sheriff’s Department (“sheriff’s department”) began a criminal investigation into allegations that in April 2010 Gonzalez supplied alcohol to a minor, and had sex with her. After the sheriff’s department interviewed Gonzalez in September 2010, he informed his LAPD supervisor, Lieutenant David Crew, that he had given the sheriff’s department a voluntary statement about providing alcohol to a minor, but Gonzalez did not initially tell Lieutenant Crew about the sex charge. In October 2010 Gonzalez reported the alcohol charge, but not the sex charge, on the initial department complaint form (No. CF 10-00392). The sheriff’s department criminal investigation was closed later without filing charges. LAPD investigated the allegations.
Gonzalez’s commanding officer Captain Schwartzer first determined that Gonzalez would be suspended for 10 days. After the supplemental investigation resulted in the sustaining of additional allegations (sex with a minor and multiple misleading statements), Captain Schwartzer determined that Gonzalez “committed acts that merit REMOVAL” and notified operations that the original penalty “has been changed from 10 suspension days to a BOARD OF RIGHTS/REMOVAL.” Commander Richard Webb endorsed the complaint (as modified to consolidate the misleading statements into a single allegation), and concurred with the recommended penalty. Both Commander Webb and Captain Schwartzer recommended a penalty of “BOARD OF RIGHTS FOR REMOVAL” to Chief Charlie Beck. Chief Beck adopted the recommendation, sending Gonzalez to a Board of Rights (“Board”) hearing with the proposed penalty of removal.
Gonzalez’s hearing before the Board began in April 2013. In August 2013, the Board reported a unanimous verdict of guilty on (1) providing alcohol to a minor, (2) sexual intercourse with a minor, and (3) providing misleading information on the complaint form. After deliberation, the Board concluded removal was the appropriate penalty. Chief Beck executed a removal order that was served on Gonzalez the following month.
Kosal Uch was a sergeant with the LAPD who was investigated after a minor female reported that in March 2015, a man opened her friend’s car while the minor and her friend were having consensual sex in the backseat, pointed his phone flashlight at her, and recorded her, saying he was a police officer and would arrest them for having sex in public. The minor said reported she was wearing only her bra at the time. The man continued to record her while she got dressed, and then made her and her friend pick up trash. He left without giving her a ticket. Uch’s commanding officer became concerned when Uch wanted to go to the minor’s address to take care of the complaint because of Uch’s “prior … issues up in those hills,” including an earlier complaint by two males Uch had confronted in the same area.
Sergeant Malcolm Collier investigated and amended the initial complaint against Uch (alleging conduct unbecoming an officer) to make allegations for invasion of the minor’s privacy, and for deletion of digital media from his department camera and his cell phone sometime after the date of the incident. Uch’s commanding officer Captain Hamilton adjudicated the allegations, sustained all but one of 14, and recommended Uch be directed to a Board hearing and be removed if found guilty. The area commanding officer concurred. Chief Beck adopted the recommendation of removal, and “[d]irect[ed] [Uch] to a Board of Rights with the proposed penalty of removal from your employment with the Department,” and stated: “This proposed removal and temporary relief from duty are made pending a hearing before and decision by a Board of Rights on the charge(s) set forth below.”
The Board hearing began in August 2016 During four days of testimony, the Board heard from many witnesses, and reviewed exhibits and interviews from the investigation. In September 2016, the unanimous Board found Uch guilty of privacy violations ((1) recording with his personal cell phone the minor in a state of undress, (2) refusing to allow the minor privacy to get to dressed in a timely manner, and (3) taking photos with his personal cell phone of the minor and her partner during their detention) and other counts. The Board prescribed removal and Chief Beck executed the removal order in September 2016.
Gonzalez filed a petition for writ of mandate against the City of Los Angeles (“City”) and Chief Beck. Uch filed a petition for writ of mandate in December 2016, alleging the City failed to provide him with a fair administrative appeal in violation of Government Code section 3304(b). Gonzalez eventually also argued violation of Section 3304(b).
The trial court coordinated the hearing on Gonzalez’s and Uch’s cases because they presented an “identical issue.” After reviewing Morgado v. City and County of San Francisco (2017) 13 Cal.App.5th 1, the trial court issued an order concluding that the Board hearing was not an appeal, and the City therefore failed to provide the terminated officers with an administrative appeal to challenge the final decision to remove them. The trial court granted the petitions, ordering the City to vacate Gonzalez’s and Uch’s terminations and provide them with the opportunity for an administrative appeal. The City and Chief Beck appealed.
Held: The California Second District Court of Appeal considered the consolidated appeal to determine whether the City provided Gonzalez and Uch with the administrative appeal required by Section 3304(b).
The Public Safety Officers Procedural Bill of Rights Act (“POBRA”; Government Code section 3300 et seq.) provides in Section 3304(b): “No punitive action … shall be undertaken by any public agency against any public safety officer … without providing the public safety officer with an opportunity for administrative appeal.” Gonzalez and Uch argued that the City had not made a “final decision” to remove them until after the Board hearing, and so the City must create another procedure to satisfy the statute’s requirement of an administrative appeal from a “final” punitive action.
The Court explained that in Morgado a complaint was made against a San Francisco police officer, the officer’s conduct was investigated, the internal affairs department did further investigation, and a full evidentiary hearing was held by a commissioner. Later, a full commission hearing was held, at the end of which the commission sustained most of the counts against the officer and “decided to terminate his employment.” (Morgado, supra, 13 Cal.App.5th at p. 4 & fn. 3.) Here, the Court stated that Morgado’s facts differed from those in the case here because the disciplinary procedure in Morgado did not “select[ ] or impos[e] … any specific disciplinary sanction” until after the commission hearing, so the hearing “precede[d] any such decision by the City as to which punishment to impose.” (Morgado, supra, 13 Cal.App.5th at p. 12.)
By contrast here, for both Gonzalez and Uch, LAPD identified removal as the specific sanction long before the Board hearing. Because removal was the selected sanction at all levels of the disciplinary process, the officers were not sent to their hearings before the City had made a decision as to which punishment to impose. Thus, the Court held that the City’s provision of a hearing before the Board was the administrative appeal required by Government Code section 3304(b).
Moreover, under the City of Los Angeles Charter (“Charter”), the Chief of Police must order a Board hearing to review the charges and reach a decision. (Charter, volume II, article X section 1070(b)(1), (2).) The Second District found that “[t]he Charter’s requirement of a Board hearing when the Chief selects removal bakes into the standard procedure what POBRA requires: an administrative appeal for the officer to establish a formal record of the circumstances surrounding his removal, and to attempt to convince LAPD to change the sanction.” The Court declined to require more than POBRA mandates. The Court accordingly reversed.
C. Employer not in violation of FEHA by failing to provide accommodations because employee failed to disclose known disability and limitations.
Doe v. Dep’t of Corr. & Rehab., 2019 Cal. App. LEXIS 1278 (4th Dist. Nov. 27, 2019)
Facts: In August 2007, John Doe applied to the California Department of Corrections and Rehabilitation (“CDCR”) for a permanent psychologist position. On his signed application, Doe did not check the box that would have expressed that he had a disability, which stated: “DISABLED—A person with a disability is an individual who … has a physical or mental impairment or medical condition that limits one or more life activities, such as … learning … or working; … has a record or history of such impairment or medical condition; … or is regarded as having such an impairment or medical condition.”
Doe started working for CDCR as a psychologist at Ironwood State Prison (“Ironwood”) in 2012. In 2013, he submitted an accommodation request using CDCR’s standard form. He requested “Time to read and write in a work space that’s quiet to help w/focus and concentration.” In response to the form’s question, “What are your limitations?” he wrote, “(LD NOS) reading, written expression.” “LD NOS” meant “learning disorder not otherwise specified.”
CDCR’s “Return to Work” department, which handled accommodation requests, requested Doe provide medical documentation of the nature and extent of his limitations in order for CDCR to determine which accommodations it could provide. Doe provided a note from his doctor which stated that Doe was “easily distracted and, under stress, can become disorganized.” Doe was subsequently permitted to switch desks to one he found less distracting, but remained unsatisfied.
After Doe took a three-month medical leave “due to stress,” CDCR provided him a quieter, less distracting office. Doe remained unsatisfied, said it was still “very hard to organize [his] work.,” and felt he was being “discriminated against” in the use of work resources.
In October 2013, Doe settled a different harassment lawsuit he had brought against CDCR, receiving a $120,000 payment in exchange for dismissing the suit and release of all claims against CDCR.
According to Doe, retaliation and harassment began in 2014. Doe identified a number of incidents over the next two years which he would later provide as evidence in support of claims under the California Fair Employment and Housing Act (“FEHA”) (Government Code section 12900 et seq.).
Doe submitted a second accommodation form in August 2014, again describing his limitations as “LD-NOS,” and protesting his move to a new yard office location[18] due to what he alleged were negative effects to his asthma and stress level. However, Doe did not provide medical substantiation documentation, instead only suggested following up with his doctor if “further medical information” was needed.
In September 2015, the Return to Work coordinator asked Doe to sign a release of his medical records so she could obtain information about the nature and extent of his limitations. Doe refused to sign the release and directed her to speak to his doctor if the coordinator needed more information.
In April 2016, Doe received a report of separation from CDCR. He was on an extended leave at the time. The separation report advised Doe he should return to his position or be considered absent without leave. Doe submitted his resignation in May 2016.
In July 2016, Doe filed a lawsuit against CDCR asserting FEHA violations. After the parties submitted their evidence and argument, the trial court found no triable issues of material fact, granted CDCR’s motion for summary judgment and entered judgment in their favor.
Held: The California Fourth District Court of Appeal explained that a trial court properly grants summary judgment when there are no triable issues of material fact and the moving party is entitled to judgment as a matter of law. (California Code of Civil Procedure section 437c(c).) The Court added that a “plaintiff’s subjective beliefs in an employment discrimination case do not create a genuine issue of fact; nor do uncorroborated and self-serving declarations.” (King v. United Parcel Service, Inc. (2007) 152 Cal.App.4th 426, 433.) Doe argued on appeal that the trial court erred by summarily adjudicating his FEHA claims because they involved triable issues of material fact.
Discrimination and Retaliation Claims
The Court first addressed FEHA discrimination and retaliation claims. The Court noted that “A prima facie case for discrimination ‘on grounds of physical disability under the FEHA requires [a] plaintiff to show: (1) he suffers from a disability; (2) he is otherwise qualified to do his job; and, (3) he was subjected to adverse employment action because of his disability.’” (Arteaga v. Brink’s, Inc. (2008) 163 Cal.App.4th 327, 344–345.) “[T]o establish a prima facie case of retaliation under the FEHA, a plaintiff must show (1) he or she engaged in a ‘protected activity,’ (2) the employer subjected the employee to an adverse employment action, and (3) a causal link existed between the protected activity and the employer’s action.” (Yanowitz v. L’Oreal USA, Inc. (2005) 36 Cal.4th 1028, 1042.)
The Fourth District explained that both FEHA claims required a showing of an “adverse employment action,” which is one that “materially affects the terms, conditions, or privileges of employment.” (Yanowitz, supra, 36 Cal.4th at pp. 1036, 1051.) “In the case of an institutional or corporate employer, the institution or corporation itself must have taken some official action with respect to the employee, such as hiring, firing, failing to promote, adverse job assignment, significant change in compensation or benefits, or official disciplinary action.” (Roby v. McKesson Corp. (2009) 47 Cal.4th 686, 706, 708.
Doe argued a supervisor subjected him to adverse employment actions by criticizing his work during what he considered to be a “interrogation-like” meeting, ordering a wellness check on him when he was out sick, suspecting him of bringing a cell phone into work (a serious rule violation), and assigning him the primary crisis person on the same day as a union meeting. The Court explained that even assuming Doe’s characterizations were true and the supervisor did everything Doe accused him of and did so maliciously, these actions were merely relatively minor conduct that did not threaten to materially affect the terms, conditions, or privileges of Doe’s job. Moreover, none of these actions resulted in any sort of formal or informal discipline or demotion in job responsibilities. FEHA, the Court added, “does ‘not guarantee employees “a stress-free working environment,”‘” (Arteaga, supra, 163 Cal.App.4th at p. 344) “‘and the mere fact that an employee is displeased by an employer’s act or omission does not elevate that act or omission to the level of a materially adverse employment action.’” (Thomas v. Department of Corrections (2000) 77 Cal.App.4th 507, 511.) The Court thus concluded that without any evidence of an adverse employment action, the trial court was correct to grant summary judgment in favor of CDCR on the discrimination and retaliation claims.
Harassment Claim
The Court concluded that Doe’s FEHA harassment claim likewise failed because the record contained no evidence of conduct that constituted harassment. To prevail on a harassment claim under FEHA, a plaintiff must produce evidence they were subjected to “offensive comments or other abusive conduct” that is (1) based on a “protected characteristic” (here, a claimed disability) and (2) “sufficiently severe or pervasive as to alter the conditions of [his] employment.” (Serri v. Santa Clara University (2014) 226 Cal.App.4th 830, 871.) The Court explained that “[h]arassment claims are based on a type of conduct that is avoidable and unnecessary to job performance.” (Reno v. Baird (1998) 18 Cal.4th 640, 646.)
Doe said the same actions by his supervisor that he cited in support of his discrimination and harassment claims supported his harassment claim. The Court, however, found these actions were objectively not so severe as to “alter the conditions of [his] employment” or create an “‘abusive working environment.’” (Serri, supra, 226 Cal.App.4th at pp. 869–871.) Moreover, each one involved a personnel decision by Doe’s supervisor within the scope of his duties as Doe’s supervisor, and so were not avoidable nor unnecessary to the supervisor’s job performance.
Accommodation Claim
The Court noted that FEHA requires employers to make reasonable accommodations for employees with disabilities: “It is an unlawful employment practice … [f]or an employer … to fail to make reasonable accommodation for the known physical or mental disability of an applicant or employee.” (Government Code section 12940(m)(1).) The Court explained that because Section 12940(m) requires an employer to accommodate only a known disability, the duty of an employer reasonably to accommodate an employee’s handicap does not arise until the employer is aware of respondent’s disability and physical limitations. (Avila v. Continental Airlines, Inc. (2008) 165 Cal.App.4th 1237, 1252.) “The employee bears the burden of giving the employer notice of his or her disability.” (Ibid.)
The Court explained that where the disability, resulting limitations, and necessary reasonable accommodations, are not open, obvious, and apparent to the employer, the employee bears the burden “to specifically identify the disability and resulting limitations, and to suggest the reasonable accommodations.” (Scotch v. Art Institute of California (2009) 173 Cal.App.4th 986, 1013, italics added.) The Court noted that “[r]eliance on medical opinion and an individualized assessment is especially important when the symptoms are subjective and the disease is of a type that varies widely between people.” (Leatherbury v. C&H Sugar Co., Inc. (N.D.Cal. 2012) 911 F.Supp.2d 872, 880; Arteaga, at p. 349 [“An individualized assessment of the effect of an impairment is particularly necessary when the impairment is one whose symptoms vary widely from person to person”].)
Here, the Court found that the information Doe included in his accommodation request and the notes from his doctor he submitted to Return to Work were not sufficient to place CDCR on notice he suffered from a disability covered by FEHA or to inform CDCR of the extent of the limitations his disability caused. First, the information Doe provided to CDCR’s Return to Work department did not suggest that he suffered from asthma or dyslexia. Merely describing his limitations as “LD-NOS” did not identify his disabilities nor specify a diagnosis, and the notes from Doe’s doctor made only vague and generalized references to an “underlying medical condition,” a “chronic work related medical condition,” a “physical disability,” and “migraine headaches.” The doctor’s note that stated Doe was easily distracted and disorganized under stress did not provide sufficient information about his limitations due to asthma and dyslexia. The Court explained that many people, whether or not they suffer from a learning disability, were easily distracted and disorganized under stress.
The Fourth District stated that information about the nature and extent of Doe’s claimed disabilities was crucial to CDCR’s ability to determine whether it was able to reasonably accommodate those disabilities. The Court pointed out that when the Return to Work department made an effort to obtain such information themselves, Doe refused to sign the medical release. The Court concluded the lack of any evidence indicating Doe provided such information to CDCR was fatal to his accommodation claims.
Because the Court found all of Doe’s FEHA claims failed, the Fourth District concluded the trial court properly granted summary judgment, and accordingly affirmed.
D. Plaintiff’s state retaliation claim not precluded by state administrative agency’s decision.
Bahra v. Cnty. of San Bernardino, 2019 U.S. App. LEXIS 38693 (9th Cir. Dec. 30, 2019)
Facts: Plaintiff Eric Bahra worked as a social services practitioner for Defendant San Bernardino County’s Department of Children and Family Services (“DCFS”). DCFS investigates referrals regarding child abuse and provides services to children and families. DCFS has a database that generally keeps track of child abuse information.
In June 2013, Bahra was assigned as the lead investigator to look into abuse allegations brought by a group of children against their former foster parent. He used the DCFS database as part of his investigation. Bahra alleged that he discovered that the foster home at issue had a prior history of child abuse and neglect but that the database did not correctly reveal that history because of typographical errors in past reports and database entries. Bahra informed his manager, Defendant Kristine Burgamy, on the same day that he discovered the database errors. The next day, Bahra found Burgamy and Defendant Nicola Hackett, Deputy Director of the Victorville DCFS office, “rifling through” files on his desk.
In July 2013, the County conducted an “administrative interview” with Bahra to determine whether he had violated any policies, rules, or practices. Bahra then left for a short vacation. When he returned, the County placed Bahra on desk duty. Shortly thereafter, the County placed him on administrative leave pending the outcome of the disciplinary process. The County then conducted a second “administrative interview.” At that interview, Bahra was represented by counsel, and Burgamy and Hackett attended for the County.
In September 2013, Bahra was issued a Notice of Proposed Dismissal, which contained several grounds for termination. The notice also explained that it was a “proposed action only” and that Bahra could respond to his appointing authority, which he did.
Thereafter, a hearing officer conducted an administrative hearing. Bahra was represented by counsel at the hearing, and he submitted another written response to the notice. The hearing officer “gave more credence to the County’s position” and issued Bahra an Order of Dismissal in October 2013. The order contained twelve reasons for dismissal.
Bahra appealed a few days later, and requested an evidentiary hearing pursuant to San Bernardino Personnel Rule X, Section 9. That hearing took place over 14 days during 2014. In total, the hearing included 27 witnesses, 2,045 pages of testimony, 154 pages of post-hearing briefs, and 89 exhibits.
Throughout the hearing, Bahra alleged that his termination was retaliatory and that Defendants had engaged in a “witch hunt” against him. Bahra primarily argued at the hearing that he was terminated in retaliation for his union organizing activity. In October 2012, Bahra circulated a petition protesting his supervisors’ management style and the “hostile working environment” in the Victorville DCFS Office. At least nine DCFS employees signed the petition, which was addressed to Human Resources. Several witnesses at the hearing, including Bahra, testified about this petition.
In July 2015, the hearing officer issued a decision. The hearing officer concluded that Bahra had not produced evidence of retaliation and that five allegations against Bahra were substantiated. The hearing officer recommended that the Civil Service Commission of the County of San Bernardino (“Commission”) uphold Bahra ‘s termination and deny his appeal.
The Commission adopted the hearing officer’s report and sustained DCFS’s order of dismissal. The Commission also advised Bahra of his right to seek judicial review through a writ of mandamus under California Code of Civil Procedure section 1094.5.
However, Bahra did not seek a writ under Section 1094.5. Instead, he filed an action in federal court, alleging that DCFS, Burgamy, and Hackett (“Defendants”) fired him in retaliation for his whistleblowing activities, in violation of California Labor Code section 1102.5 (“Section 1102.5”) and 42 U.S.C. section 1983 (“Section 1983”). The District Court granted summary judgment for Defendants, holding in part that the Commission’s decision precluded Bahra’s claims. Bahra appealed.
Held: The Ninth Circuit Court of Appeals considered Bahra’s state Section 1102.5 claim. The Court explained that in California, decisions by administrative agencies typically have preclusive effect, provided that they have a sufficiently “judicial character” and that the elements of claim or issue preclusion are satisfied. Murray v. Alaska Airlines, 50 Cal. 4th 860, 114 Cal. Rptr. 3d 241, 237 P.3d 565, 568-69 (Cal. 2010).[19] However, courts will not give preclusive effect to an administrative decision if doing so would contravene the intent of the California legislature. Fahlen v. Sutter Cent. Valley Hosps., 58 Cal. 4th 655, 168 Cal. Rptr. 3d 165, 318 P.3d 833, 845-46 (Cal. 2014); see also State Bd. of Chiropractic Exam’rs v. Superior Ct, 45 Cal. 4th 963, 89 Cal. Rptr. 3d 576, 201 P.3d 457, 464 (Cal. 2009) (California courts do not give preclusive effect to the results of agency proceedings “if doing so is contrary to the intent of the legislative body that established the proceeding in which [preclusion] is urged.” (quoting Pac. Lumber Co. v. State Water Res. Control Bd., 37 Cal. 4th 921, 38 Cal. Rptr. 3d 220, 126 P.3d 1040, 1055 (Cal. 2006))).
The Ninth Circuit noted that this legislative-intent exception was recently applied in Taswell v. Regents of Univ. of Cal.[20] by a state Court of Appeal. In Taswell, the California Fourth District Court of Appeal held that administrative findings by a state agency do not preclude claims for retaliation brought under Section 1102.5. Accordingly, the Ninth Circuit explained that unless it was “convinced” that the California Supreme Court would disagree with Taswell, the federal Circuit Court was bound by Taswell’s holding.[21]
The Court noted that in Murray v. Alaska Airlines, 50 Cal. 4th 860, 114 Cal. Rptr. 3d 241, 237 P.3d 565, 568-69 (Cal. 2010), the California Supreme Court considered the preclusive effect of a federal agency’s findings when the plaintiff had chosen not to pursue a formal adjudicatory hearing or subsequent judicial review. Murray held that the plaintiff’s retaliation claim was precluded. Even so, the Ninth Circuit concluded that Murray did not require the Circuit Court to give preclusive effect here to the Commission’s order with respect to Bahra’s Section 1102.5 claim because Murray applied a different test than the test applied in Taswell. Murray considered whether the federal administrative proceeding possessed a “sufficiently judicial character,”[22] whereas Taswell considered the legislative intent of Section 1102.5. Because Taswell and Murray assessed different legal questions, the Ninth Circuit found that they were not inconsistent.
Moreover, the Ninth Circuit concluded that the California Supreme Court would likely agree with Taswell. The federal court explained that Taswell applied principles derived from California Supreme Court precedents, including Fahlen, to resolve the question whether preclusion applied to the plaintiff’s Section 1102.5 claims. The Ninth Circuit observed that Fahlen, decided after Murray, recognized the intent of the California legislature to create “distinct fora and procedures” for retaliation claims, separate and apart from administrative procedures that address adverse employment actions.[23]
The Ninth Circuit consequently held that the Commission’s order did not preclude Bahra’s Section 1102.5 claim, and accordingly reversed the District Court’s ruling on the state claim.
However, the Ninth Circuit did not extend its conclusion regarding legislative intent to Bahra’s Section 1983 claim. The Ninth Circuit noted that Bahra did not argue that giving an administrative proceeding preclusive effect in a later Section 1983 action was contrary to legislative intent. Observing that the Ninth Circuit does “not ordinarily consider matters ‘that are not specifically and distinctly argued,’”[24] the Court declined to conduct that analysis sua sponte.
Moreover, the Court found that the Commission’s ruling had a “sufficiently judicial character” because Bahra had been provided with an “adequate opportunity to litigate.” Murray, 237 P.3d at 569-70 (quoting United States v. Utah Constr. & Mining Co., 384 U.S. 394, 422 (1966)). The Court pointed to the comprehensive evidentiary record and the availability of judicial review, as well as the testimony of several witnesses pertaining to Bahra’s hostile work environment petition, as supporting the Court’s finding that Bahra had “full opportunity to litigate the propriety of his termination before the administrative agency.” The Court therefore concluded that Bahra’s Section 1983 claim was precluded by the Commission’s order and accordingly affirmed the District Court’s ruling on that claim.
In sum, the Ninth Circuit affirmed dismissal of the federal Section 1983 claim, reversed the dismissal on the state Section 1102.5 claim, and remanded the case for further proceedings.
For a more detailed discussion of this case, please see Client Alert Vol. 35, No. 2, available at www.jones-mayer.com.
PURSUIT IMMUNITY
Sheriff’s Office immune from liability for injuries arising from vehicular pursuit, because Sheriff had in place policy regarding such pursuits that required training.
Riley v. Alameda Cnty. Sheriff’s Office, 2019 Cal. App. LEXIS 1267 (1st Dist. Dec. 17, 2019)
Facts: In October 2014, William Riley was riding a motorcycle through a green light on High Street at International Boulevard in Oakland, when he was struck by a car that ran a red light while fleeing from deputies employed by the Alameda County Sheriff’s Office (Sheriff).[25] The suspects in the car that struck Riley were suspected of theft and the car had been reported as stolen. Riley traveled on the hood of the car for some distance, until the car crashed. Riley suffered serious bodily injury.
Riley filed suit against the Sheriff, individual deputies, and the suspects and other persons associated with them, and later filed his Second Amended (and operative) Complaint in February 2016. In June 2016, defaults were entered against the suspects and others associated with them. In July 2016, the trial court sustained the Sheriff’s demurrer without leave to amend as to three of the causes of action in the Complaint. The court also dismissed the individual officers from the action.
In December 2018, the trial court denied Riley’s motion for summary adjudication and granted the Sheriff’s motion for summary judgment under Vehicle Code section 17004.7. The trial court concluded the Sheriff was entitled to immunity under Section 17004.7. Riley appealed.
Held: The California First District Court of Appeal noted that under Government Code section 815, a “public entity is not liable for an injury, whether such injury arises out of an act or omission of the public entity or a public employee or any other person.” (Section 815(a).) Vehicle Code section 17001 creates a statutory exception to public entities’ general tort immunity, providing: “A public entity is liable for death or injury to person or property proximately caused by a negligent or wrongful act or omission in the operation of any motor vehicle by an employee of the public entity acting within the scope of his employment.” However, “‘Section 17004.7 in turn limits the liability that … [S]ection 17001 otherwise permits by affording immunity to public agencies that adopt and implement appropriate vehicle pursuit policies.’” (Ramirez v. City of Gardena (2018) 5 Cal.5th 995, 999.) Section 17004.7 provides a public agency immunity from liability for collisions involving vehicles being pursued by peace officers if the agency “adopts and promulgates a written policy on, and provides regular and periodic training on an annual basis for, vehicular pursuits … .” (Section 17004.7(b)(1); see also Ramirez, at p. 997.) On appeal, Riley argued that the Sheriff’s policy, promulgation of the policy, and training did not comply with Section 17004.7.
The Sheriff’s Pursuit Policy and Distribution Process
The Court described the Sheriff’s pursuit policy. The Court noted that in April 2014 the Sheriff adopted a revised version of General Order 2.01, the Sheriff’s policy on vehicle pursuits (“Policy”), which described the Policy’s purpose as “[t]o establish guidelines for sworn members during vehicle pursuits.” The stated overall “POLICY” statement is as follows: “It shall be the policy of this agency to apprehend law violators at every opportunity. Deputies engaged in vehicle pursuits of actual or suspected violators shall proceed in a manner consistent with the safety and well being of all persons. It is recognized that all pursuit situations are different and actions taken during any pursuit may reasonably and necessarily vary. When circumstances are such that the safety of any person is gravely endangered because of the pursuit, it shall be terminated in all but the most exigent circumstances. In all cases, a supervisor, if available, shall monitor and control the pursuit.”
The Court explained that the Policy clear expressed that its intent was to comply with Section 17004.7, asserting that “This General Order meets the criteria set forth in [Section 17004.7,] subdivision (c)” and that the minimum standards described therein “are clearly outlined in this order.” The Policy specified procedures applicable to vehicle pursuits, and had a section called “GUIDELINES FOR INITIATING, CONTINUING OR TERMINATING PURSUITS” which listed 17 “factors [that] should be considered to determine whether a pursuit should be initiated, continued, or terminated.” The Policy provided that “Supervisory and management control will be exercised over all motor vehicle pursuits.” The Policy also declared, “The Sheriff’s Office shall provide regular and periodic training on an annual basis for all sworn personnel in the handling of high-speed vehicle pursuits. The instruction will be commensurate with the high-speed vehicle pursuit training developed by the [Commission on Peace Officer Standards and Training] as required by Penal Code Section 13519.8. The training shall be conducted by the Regional Training Center through the use of the ‘Pursuit Policy Training Attestation Form’ … .”
The Court stated that the Sheriff uploaded the Policy into the agency’s electronic Document Management System (“DMS”) pursuant to procedures set forth in the Sheriff’s General Order 2.01. When the Policy was uploaded into the DMS, all peace officers employed by the Sheriff automatically received electronic notice of the Policy. General Order 2.01 directed that all disseminated General Orders, such as the Policy, “will be reviewed in a timely manner and signed off electronically in the DMS” by all officers. The electronic sign-off screen stated, “Enter your Username and Password in the spaces provided below. The entry of your Username indicates that you have read and understood this document.”
General Order 2.01 also stated that “Commanding Officers and/or Unit Commanders shall also be responsible for ensuring that every Agency member under their command electronically signs for each such [policy] issuance. The [Regional Training Center] will notify Unit Commanders regarding employees that have not reviewed their DMS mailbox in a timely manner. Each affected employee must electronically sign for the document, indicating he/she is responsible for reviewing and following the applicable Policy and Procedure.” The Court observed that the Sheriff’s records showed that, at the time of the pursuit at issue in the present case, approximately 80% of the agency’s peace officers had completed the electronic certification for the Policy.
Promulgation
Section 17004.7(b)(2) provides, “Promulgation of the written policy under paragraph (1) shall include, but is not limited to, a requirement that all peace officers of the public agency certify in writing that they have received, read, and understand the policy. The failure of an individual officer to sign a certification shall not be used to impose liability on an individual officer or a public entity.”
Riley argued that the Policy failed to meet the promulgation requirement for a number of reasons, but the Court rejected them all. Riley argued the Policy failed to satisfy Section 17004.7 because the Policy did not contain the officer certification requirement, but the Court explained that the section’s language did not dictate that the certification requirement be stated in the pursuit policy itself. Instead, Section 17004.7(b)(2) merely specifies that “Promulgation of the written policy … shall include … a requirement that all peace officers of the public agency certify in writing that they have received, read, and understand the policy.” Here, the Court found that the Sheriff presented evidence showing that the requirement was contained in General Order 2.01, which required peace officers to sign off on all policies, including the Policy here.
Riley also argued that there was no evidence the Sheriff required officers to certify they read and understood the Policy, but the Court observed that General Order 2.01 required that the Policy be “reviewed in a timely manner” and “signed off electronically in the DMS,” and that the DMS electronic sign-off screen stated, “Enter your Username and Password in the spaces provided below. The entry of your Username indicates that you have read and understood this document.” Moreover, a screenshot in evidence provided evidence that officers were required to certify at the time of the pursuit that they “received, read, and understand” (Section 17004.7(b)(2)) the Policy.
Riley’s argument that the electronic signoff process did not constitute “in writing” within the meaning of Section 17004.7(b)(2), i.e., on paper. However, the First District observed that If the Legislature intended “writing” to refer only to handwriting on paper, it would have so required in Evidence Code section 250, which provides that “‘Writing’ means handwriting, typewriting, printing, photostating, photographing, photocopying, transmitting by electronic mail or facsimile, and every other means of recording upon any tangible thing, any form of communication or representation, including letters, words, pictures, sounds, or symbols, or combinations thereof, and any record thereby created, regardless of the manner in which the record has been stored.”
Riley further argued that the Policy was not promulgated within the meaning of Section 17004.7(b)(2) because the Sheriff’s evidence demonstrated approximately 20% of officers failed to complete the electronic certification. The Court noted that the California Supreme Court in Ramirez addressed the question of “whether a public agency may receive [S]ection 17004.7’s immunity only if every peace officer it employs has, in fact, provided the written certification.” (Ramirez, at p. 997.) Ramirez held “that the agency’s policy must require the written certification, but 100 percent compliance with that requirement is not a prerequisite to receiving the immunity,” (Ibid.) reasoning that the plain meaning of the statutory language “is that the policy must contain the requirement, not that every peace officer must meet the requirement.” (Id. at pp. 1000–1001.)
Here, the First District concluded that Riley had not shown there was a triable issue of material fact on this aspect of the promulgation issue. The Court noted that the Sheriff presented evidence showing it “conscientiously implemented its pursuit policies” (Ramirez, at p. 1001), and made an extensive effort to distribute the Policy and obtain responses from officers. All officers were notified of the Policy by the DMS, and General Order 2.01 required the officers to certify they read and understood the Policy. General Order 2.01 required commanding officers to ensure compliance with the electronic certification requirement, and the order required the Regional Training Center to notify the commanding officers about non-compliance. Further, the Sheriff submitted a declaration from the employee responsible for the DMS stating that, “The general practice throughout the units is that the unit commander or the designee of the unit commander would either request an audit of the DMS for the unit, or perform the audit him or herself to determine if officers had any items in their DMS inbox [that] needed to be signed off on. Unit commanders would discuss sign offs during shift briefing known as ‘muster.’ They would instruct officers to review and sign off on unsigned items.”
The Court agreed with the trial court’s conclusion that the Sheriff made a “prima facie” showing it has “a system in place that is reasonably designed to apprise all peace officers of the” Policy. The Sheriff presented evidence that compliance with the certification requirement was required of all officers, and that unit commanders followed up with officers who had not complied. Riley presented little to the contrary. Although the Sheriff’s failure to obtain certifications from roughly 20% of the officers indicated to the Court that there were ways the Sheriff could improve its follow-up process, the Court found no basis in the record to conclude that there was such a failure to implement the policy that its adoption was “a mere formality.” (See Ramirez, supra, 5 Cal.5th at p. 1000 [characterizing promulgation obligation in section 17004.7 as “requirements that the public entity implement the policy through training and other means to ensure it is not a mere formality”].)
The Court thus determined that the trial court properly concluded there was no triable issue of material fact as to Riley’s claim that the Sheriff failed to promulgate the Policy within the meaning of Section 17004.7(b)(2).
Section 17004.7(c) Standards
The Court explained that “[i]n order for the immunity to apply under [S]ection 17004.7, a public entity must adopt a pursuit policy that clearly and with specificity sets forth standards to guide officers in the field.”[26] Section 17004.7 specifies twelve “minimum standards” that “[a] policy for the safe conduct of motor vehicle pursuits by peace officers shall meet … .” (Section 17004.7(c)) Riley argued the Policy failed to satisfy two of the “minimum standards” in Section 17004.7(c), relating to determination of speed and air support.
Minimum standard number seven directed that pursuit policies should “[d]etermine the factors to be considered by a peace officer and supervisor in determining speeds throughout a pursuit. Evaluation shall take into consideration public safety, peace officer safety, and safety of the occupants in a fleeing vehicle.” (Section 17004.7(c)(7).)
Although the Policy did not expressly state “factors to be considered … in determining speeds throughout a pursuit” or include a section specifically regarding speed, the Court agreed with the trial court that “a fair reading of the [P]olicy shows that it directs officers to consider appropriate factors, including speed, when making a decision to initiate, continue, or terminate a pursuit.” The First District noted that the part of the Policy entitled “GUIDELINES FOR INITIATING, CONTINUING OR TERMINATING PURSUITS” listed 17 “factors [that] should be considered to determine whether a pursuit should be initiated, continued, or terminated.”[27] The Court explained: “…when a deputy is determining whether to initiate, continue, or terminate a pursuit, the most critical question is whether it is safe to achieve or maintain the speed necessary for pursuit. Accordingly, by listing the factors relevant to determining whether to initiate, continue, or terminate a pursuit, the Policy is in effect directing deputies to consider those same factors in determining speed.” Moreover, Section 17004.7(c) standards were modeled on the Commission on Peace Officer Standards and Training (“POST Commission”) Guidelines, which did expressly list factors to consider in determining speed of pursuit.
The Court therefore concluded the Policy did effectively “control and channel the pursuing officer’s discretion” in determining the speed of pursuit. (Payne v. City of Perris (1993) 12 Cal.App.4th 1738, 1747; see also Ramirez, supra, 14 Cal.App.5th at pp. 826–827.) The Court stated that denying the Sheriff immunity under Section 17044.7 due to the Policy’s failure to expressly state the listed factors that should be considered in determining speed would elevate form over substance, without furthering the Legislature’s goal of encouraging fewer and safer pursuits.
Turning to the air support standard, the Court noted that minimum standard number eight in Section 17004.7(c)(8) requires pursuit policies to “[d]etermine the role of air support, where available. Air support shall include coordinating the activities of resources on the ground, reporting on the progress of a pursuit, and providing peace officers and supervisors with information to evaluate whether or not to continue the pursuit.” Riley contended the Policy failed this standard.
The Court explained that the Policy stated that air support “may be utilized to support ground operations during a vehicle pursuit” and specified, among other things, the information to be provided by air support and how the information should be used by the Sheriff’s units on the ground. Rejecting Riley’s assertion, the Court determined that the Policy was actually substantially more detailed than the POST Guidelines on the topic of air support, and the Policy plainly complied with the language of Section 17004.7(c)(8).
Training Requirement
Riley argued that the Sheriff’s training failed to include consideration of speed limits. The Court explained that Section 17004.7(b) mandates that agencies provide “regular and periodic training on an annual basis” regarding pursuit policies, and Section 17004.7(d) specifies that such training “shall include, at a minimum, coverage of each of the subjects and elements set forth in subdivision (c) and that shall comply, at a minimum, with the training guidelines established pursuant to Section 13519.8 of the Penal Code.” Section 13519.8(b) provides that “[t]he course or courses of basic training for law enforcement officers and the guidelines shall include adequate consideration of each of” 15 subjects, including ”speed limits.”
The Court reviewed a training video that, according to the deputy sheriff responsible for developing the Sheriff’s training, provided training for compliance with Section 17044.7. The deputy sheriff declared, “These training videos cover each of the subjects and elements set forth in [Section 17004.7(c)] and comply with the training guidelines pursuant to Penal Code section 13519.8.” The Court noted that the video listed the factors that should be considered in deciding whether to initiate, continue, or terminate a pursuit, including “speeds traveled.” As with the Policy, the Court interpreted that portion of the training video as providing guidance to deputies in determining speed, because those factors effectively aided deputies in determining whether it is safe and appropriate to drive fast enough to maintain pursuit. Among other speed-related references, the Court also observed on-screen text in the video that cautioned “SLOW DOWN!” and “CHECK YOUR SPEED,” while the narrator described law enforcement fatalities resulting from “single vehicle collisions,” adding “we’re driving too fast for the conditions.”
The Court found Vehicle Code section 17004.7 consistent with Penal Code section 13519.8’s use of the term “speed limits,” finding that the statutory language and legislative history did not support construing “speed limits” in Penal Code section 13519.8(b) to require training on matters not required to be included in the pursuit policy under the section 17004.7, subdivision (c), minimum standards. The First District concluded that because the Sheriff showed that deputies were trained in accordance with the Policy, the Sheriff showed that the training included adequate consideration of speed limits as required by Penal Code section 13519.8(b). Thus, the trial court did not err in granting the Sheriff’s motion for summary judgment/adjudication on the basis of immunity under Section 17004.7.
The First District Court of Appeal had thus rejected Riley’s assertions that the Sheriff’s policy, promulgation of the policy, and training did not comply with Section 17004.7, and concluded that the trial court had properly held that the Sheriff was immune under Section 17004.7. Accordingly, the First District affirmed the trial court’s judgment.
[1] People v. Appleton (2016) 245 Cal.App.4th 717, 727.
[2] The Attorney General also argued that Ricardo P. did not control because Lent and Ricardo P. addressed conditions of probation, and neither should apply to terms of mandatory supervision. However, the Second District explained that courts dealing with this issue have consistently applied the Lent test to mandatory supervision terms.
[3] For significantly more detail on the Court’s analysis of the state-created danger doctrine as it applied to the three officers, please see Client Alert Vol. 34, No. 41, available at www.jones-mayer.com..
[4] In Okin, the plaintiff Okin called 911 reporting abuse. She showed responding police her bruises and told them she had been, among other things, choked that day. She asked officers to tell the perpetrator to stop beating her. The officers did not arrest the perpetrator, discussing football instead with him. The Second Circuit determined that the officers provided “official sanction” to the abuse and affirmatively increased Okin’s danger, thereby violating Okin’s due process rights.
[5] See United States v. Seybold, 726 F.2d 502, 504 (9th Cir. 1984).
[6] 490 U.S. 386 (1989).
[7] Sergeant Simmont testified that he asked for and received permission from Rubio’s father to search the house. The father denied being asked for permission.
[8] Health & Safety Code section 11370.1.
[9] Or if it is required by a statute enacted by two-thirds of each house of the Legislature. (See article 1, Section 28(f)(2) of the California Constitution). Section 625.6 did not pass each house by a two-thirds margin.
[10] Pearson v. Callahan, 555 U.S. 223, 236 (2009).
[11] Penal Code section 630 et seq.
[12] See Lance W., supra, 37 Cal.3d at p. 888, fn. 8: “Ballot summaries and arguments are accepted sources from which to ascertain the voters’ intent and understanding of initiative measures”.
[13] Service Employees Internat. Union, Local 1000 v. Department of Personnel Admin., 142 Cal.App.4th 866, 870 (3rd Dist. 2006).
[14] Coachella Valley Mosquito & Vector Control Dist. v. California Public Employment Relations Bd., 35 Cal.4th 1072, 1080 (2005).
[15] Administrative autonomy denotes the concept that courts should not interfere with an agency determination until the agency has reached a final decision.
[16] Judicial efficiency represents the notion that overworked courts should decline to intervene in an administrative dispute unless absolutely necessary.
[17] City of San Jose v. Operating Engineers Local Union No. 3 (2010) 49 Cal.4th 597, 609; Coachella Valley, supra, 35 Cal.4th at pp. 1080–1081.
[18] Doe’s move was a part of Ironwood’s overall transition to the “complete care model,” which reorganized the prison’s work spaces so its various healthcare professionals (e.g., psychologists, nurses, and dental practitioners) would be located closer to the inmates they served.
[19] Also see Runyon v. Bd. of Trs., 48 Cal. 4th 760, 108 Cal. Rptr. 3d 557, 229 P.3d 985, 994 (Cal. 2010).
[20] 23 Cal. App. 5th 343 (4th Dist. 2018).
[21] Poublon v. C.H. Robinson Co., 846 F.3d 1251, 1266 (9th Cir. 2017) (quoting Miller v. County of Santa Cruz, 39 F.3d 1030, 1036 n.5 (9th Cir. 1994)).
[22] Id. at 568.
[23] 318 P.3d at 846 & n.10.
[24] See Lopez-Vasquez v. Holder, 706 F.3d 1072, 1080 (9th Cir. 2013) (quoting Koerner v. Grigas, 328 F.3d 1039, 1048 (9th Cir. 2003)).
[25] Riley did not dispute the deputies had been directed to terminate the pursuit before the collision.
[26] Alcala v. City of Corcoran, 147 Cal.App.4th 666, 674–675 (5th Dist. 2007).
[27] The guideline factors include: “[t]he seriousness of the originating incident or violation, and the relationship to community safety;” “[s]afety of the public in the area of the pursuit;” “[s]afety of the pursuing deputies;” “[v]olume of vehicular traffic;” “[v]olume of pedestrian traffic;” “[s]peeds involved;” “[t]ime of day;” “[w]eather conditions;” “[r]oad conditions;” “[t]ype of area, e.g., rural, urban, suburban, schools, business, residential, etc;” “[f]amiliarity of the deputy and supervisors with the area of the pursuit;” “[q]uality of radio communications;” “[t]he capability of the patrol vehicle;” “[t]he capability of the deputy driving the patrol vehicle;” “[l]ength of the pursuit;” “[p]resence of a hostage in the vehicle being pursued;” and suspect identification such that “later apprehension can be accomplished.”
