A. Constitutional rights potentially violated where police department takes adverse action against officer based on private sexual conduct.

Perez v. City of Roseville, 2018 U.S. App. LEXIS 3212 (9th Cir. Feb. 9, 2018)

Facts: In January 2012, Janelle Perez was hired by Roseville Police Department Chief Daniel Hahn to serve as a police officer in the department. A few months into her probationary term, Perez and Roseville Police Officer Shad Begley began a romantic relationship. Both Begley and Perez were separated from, though still married to, other individuals. In June 2012, Begley’s wife filed a citizen complaint alleging that Perez and Officer Begley were having an affair and that they had engaged in sexual conduct while on duty. The department conducted an Internal Affairs (“IA”) investigation, which found no evidence of on-duty sexual contact between Perez and Begley. The investigation did find some on-duty calls and texts between the two officers.

Roseville Police Captain Stefan Moore and his lieutenant Cal Walstad reviewed the IA report. They agreed that Perez and Begley’s conduct violated “Conduct Unbecoming” and “Unsatisfactory Work Performance” policies, and that Perez should be released from her probation as a result. Both Moore and Walstad later said they morally disapproved of Perez’s extramarital affair.

In mid-August, Perez and Begley were notified of the policy violations, and Captain Moore issued written reprimands to both officers on the basis of the charges. Perez had previously received positive evaluations in the six months prior to the IA investigation. Perez appealed her reprimand. An administrative hearing for the appeal was held on September 4, 2012. In the few weeks prior to the hearing, several incidents involving Perez occurred.

A few days before Perez received her written reprimand, a citizen had filed a complaint about Perez’s conduct, but no IA investigation commenced because the citizen chose not to pursue the matter. At some point after the IA report was finished, Chief Hahn and Captain Moore received information from different officers that Perez was not getting along with other officers. At the end of August, Perez became ill and had Begley cover her shift. An officer who supervised the dayshift schedule spoke with Chief Hahn, Captain Moore, and a lieutenant about conversations the supervisor had with Perez about shift trades after she became ill. Hahn, Moore and the lieutenant told the schedule supervisor officer to memorialize these conversations with Perez.

At the hearing, Perez provided a written rebuttal to the IA findings. At the conclusion of the September 4, 2012 hearing, Perez was informed without any explanation that she was being released from probation; she was issued a written notice, dated September 4, 2012, which was prepared in advance of the hearing. The notice contained no reasons for her discharge. After the hearing, when Perez asked Hahn why she was being terminated, the Chief declined to give a reason.

About two weeks later, the basis of Perez’s reprimand was changed from “Conduct Unbecoming” and “Unsatisfactory Work Performance” to “Use of Personal Communication Devices.” Perez did not appeal this reprimand because she had already been fired, and her termination letter said she had no right to appeal. Chief Hahn later said that Perez’s personal calls did not warrant termination. Hahn also later said that he had decided to fire Perez before the meeting, because of her performance and conduct in the period after the completion of the initial IA investigation.

In January 2014, Perez sued the City of Roseville, the Department, Moore, Hahn, and Walstad, alleging 42 U.S.C. section 1983 claims for violation of her rights to privacy and freedom of association, among other claims.

The district court granted summary judgment to each defendant. On Perez’s section 1983 claim for violation of her rights to privacy and intimate association, the district court concluded that the defendants were entitled to qualified immunity because Perez did not have a clearly established constitutional right to engage in a personal relationship with Begley while on duty. Perez appealed.

Held: The Ninth Circuit Court of Appeals held that the police defendants could potentially have violated Perez’s right to privacy and intimate association by taking adverse action based on private sexual conduct without evidence of an impact on job performance, or without a narrow, constitutional regulation.

The Court began by noting that under section 1983, a plaintiff must (1) prove that [s]he was deprived of a right secured by the Constitution or federal law; (2) that the alleged deprivation was committed under color of state law; and (3) that the federal right was “clearly established” at the time of the violation, or else the governmental officers are qualified immunity. Marsh v. Cty. of San Diego.[1] The Court observed that since the defendants were police and, as such, acted “under color of state law,” the test for surviving summary judgment under section 1983 here involved the remaining two components.

  1. Constitutional Violation

The Court noted that under its precedent, Thorne v. City of El Segundo,[2] police officers have a right to sexual behavior conducted privately and off-duty. This right, the Court observed, “protected public employees from adverse employment action based ‘in part’ on their private sexual activities…[i]n other words, under Thorne, the Constitution is violated when a public employee is terminated (a) at least in part on the basis of (b) protected conduct, such as her private, off-duty sexual activity.”

The Court concluded that there was a genuine factual dispute whether Perez was terminated “in part” because of the affair. The Court noted that Chief Hahn testified that the IA investigation into Perez’s affair “was part of” his decision to terminate Perez. Captain Moore testified that the affair was “significant” to him because it might reflect unfavorably on the department. Moore issued the reprimands and recommended Perez’s termination based on the results of the IA investigation. Walstad also had expressed moral disapproval of Perez’s conduct during his involvement with the termination process.

The Court also found sufficient circumstantial evidence suggesting the Department’s purported reasons for terminating were pretextual, noting that all three involved incidents after the initial IA investigation concluded. The Court observed, “[b]ased on the evidence that Walstad and Moore morally disapproved of Perez’s sexual conduct, and the speed with which these unrelated employment issues were ‘discovered’ immediately after the IA investigation revealed Perez’s affair, a reasonable factfinder could conclude that all three reasons were pretexts for an impermissible motive. Cf. Stegall v. Citadel Broad. Co., 350 F.3d 1061, 1069 (9th Cir. 2003), as amended (Jan. 6, 2004) (‘Temporal proximity between protected activity and an adverse employment action can by itself constitute sufficient circumstantial evidence of retaliation in some cases.’).”

Considering these factors together, the Court concluded that a genuine issue of material fact existed as to whether Perez was fired at least in part because of her extramarital affair, violating her protected conduct. Thus, the Court found sufficient evidence to survive summary judgment on the privacy and freedom of association claim.

  1. “Clearly Established” Law

The Court observed that, for qualified immunity purposes, Ninth Circuit precedents like Thorne sufficed to clearly establish the law within the Ninth Circuit. The Court declared that Thorne clearly established that “a department can violate its employees’ rights to privacy and intimate association… by taking adverse employment action on the basis of such private conduct” without finding any impact upon on-the-job performance, or that the conduct violated a constitutionally permissible, narrowly- tailored regulation.

Given the absence of any material evidence that Perez’s affair had a meaningful effect upon her on-the-job performance, or resulted in a violation of a narrowly tailored department regulation, and taking the evidence in the light most favorable to her, the Court concluded that the defendants violated Perez’s clearly established constitutional rights by terminating her in part on the basis of her extramarital affair. The officers were thus not entitled to qualified immunity on the privacy claim.

The Ninth Circuit therefore reversed the district court’s grant of qualified immunity on the privacy claim and remanded that claim for further proceedings.

For a more detailed discussion of this case, please see Client Alert Vol. 33, No. 4, available at www.jones-mayer.com.

B. Consent exception to warrantless entry into occupant’s home unreasonable as to an occupant who is physically present and expressly refuses consent to entry.

Bonivert v. City of Clarkston, 2018 U.S. App. LEXIS 4625 (9th Cir. Feb. 26, 2018)

Facts: In January 2012, City of Clarkston, Washington (the “City”) police officers, Sergeant Danny Combs and Officer Paul Purcell, received a “physical domestic” dispatch to the home of Ryan Bonivert. The dispatcher relayed to the officers that an argument between a man and a woman had become “physical at one point,” and that the dispatcher had been told that the male was currently inside the house and the female and a child were outside. The male was Bonivert and the female was his live-in girlfriend, Jessie Ausman. The child was their nine-month old daughter.

When Purcell and Combs arrived, they encountered five people standing in front of Bonivert’s house: Ausman, her sister, her mother, and two other men. Purcell interviewed the women, and Combs interviewed the two men. Both groups related that during an evening gathering with friends, Bonivert had been arguing with Ausman when she attempted to leave with their nine-month old daughter. The women claimed Bonivert then threw Ausman to the ground, but the men said they did not see “anything physical” occur between Bonivert and Ausman. Bonivert remained inside the house during the entirety of the officers’ conversations with the witnesses outside.

The officers conferred and, after discussing the discrepancies between the men and women’s stories, decided to speak to Bonivert. The officers approached the front door of the residence, knocked, identified themselves as police, and instructed Bonivert to come to the door. There was no response. Combs knocked on other doors and windows, and used a flashlight to look inside. The officers found both the front and back doors locked. As Combs came to the side door, Bonivert realized it was unlocked and locked the deadbolt from inside. Hearing this, Combs believed that Bonivert did not want to speak or have any contact with him. Combs yelled loudly “Come out or we are coming in,” or something similar, but Bonivert continued to be unresponsive.

The officers talked to the witnesses again. Ausman told Officer Combs that there were no weapons in the house and that she did not believe that Bonivert was a danger to himself. Combs expressed concern that Bonivert had not talked with the officers and wanted to “find out what was going on.” Ausman indicated that Bonivert would be angry, but not violent, if the officers tried to break in. She gave Sergeant Combs permission to enter the house. Ausman did not indicate that she would reenter Bonivert’s home with the officers. The officers did not try to get a search warrant at any point.

The officers requested assistance from the Asotin County Sheriff’s Office (the “County”). The officers also radioed a “Code 4” message to the County, which meant that there were no problems with the police and the people they were with, and that everyone was safe and nobody was being injured. Two County deputies arrived. Combs requested their assistance to enter the house after describing the situation. Though the deputies were aware that the City officers had no warrant to enter the home or arrest Bonivert, they deferred to Combs as the highest ranking City officer on the scene. The police broke a window to unlock and partially enter the back door. Bonivert tried unsuccessfully to shut the door. The officers forced their way in, throwing Bonivert to the ground, and then drive-stunned him with a taser several times, handcuffed him, and arrested him.

Bonivert brought claims under 42 U.S.C. section 1983 against several defendants including the officers, alleging warrantless entry and excessive force in violation of Bonivert’s constitutional rights. The defendants moved for summary judgment, arguing qualified immunity should apply to the officers because they had consent to enter the house, and emergency and exigent circumstances applied. The district court granted summary judgment on the basis of qualified immunity.

Held: The Ninth Circuit Court of Appeals reversed and remanded the district court’s grant of summary judgment on qualified immunity grounds on the Fourth Amendment claims for unlawful entry and excessive force.

The Court initially explained the standard for review of summary judgment based on qualified immunity, noting that qualified immunity does not attach to government officials when (1) “the facts ‘[t]aken in the light most favorable to the party asserting the injury . . . show [that] the [defendants’] conduct violated a constitutional right’ and (2) ‘the right was clearly established’ at the time of the alleged violation.”[3]

The Court noted that since the Fourth Amendment “protects ‘[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures,’” the question of whether the officer violated a constitutional right typically depended on the “reasonableness” of officer actions.[4] The Court observed that this reasonableness standard differed from that governing whether the right was “clearly established.” Under the “clearly established” reasonable standard, the Court noted, “even an officer who correctly perceives the facts establishing that his conduct was ‘unreasonable’ under the Fourth Amendment is entitled to immunity if he was mistaken ‘as to what the law require[d]’ under the circumstances,” as long as the mistake was reasonable.

The Court noted that “[a]mong constitutional rules, few are as well established, frequently applied, and familiar to police officers as the warrant requirement and its exceptions.” Because the officers did not get a warrant before entering Bonivert’s home, the Court observed, the entry was “presumptively unreasonable.” The officers claimed their entry was justified anyway by consent, emergency aid, and exigent circumstances exceptions to the warrant requirement. They claimed in the alternative that it was not clearly established law that these exceptions did not justify a warrantless entry under the circumstances. But the Court of Appeals ultimately found no exception to the warrant requirement justified the officers’ entry into Bonivert’s home. The Court also concluded that the unlawfulness of the officers’ entry under each exception was clearly established under pre-existing law.

Addressing the consent exception claimed by the officers, the Court found a parallel case in Georgia v. Randolph,[5] which held that an occupant’s consent to a warrantless search of a residence was unreasonable as to a co-occupant who was physically present and objected to the search. The Ninth Circuit Court found no Fourth Amendment distinction between the warrantless search under Randolph and the officers’ entry into Bonivert’s home in the present case. Even though the officers had Ausman’s consent to enter the house, Bonivert was physically present inside and expressly refused to permit the officers to enter on two separate occasions by locking the side door and trying to prevent their entry through the back door later.

The Ninth Circuit Court of Appeals also cited U.S. v. Williams,[6] where the Eighth Circuit held that a co-occupant’s consent to search was no longer valid once the defendant, who was physically present and shared common authority over that room, “slammed the door and put the dead bolt on.” The Ninth Circuit found a parallel in the present case with Bonivert’s actions. The Ninth Circuit also noted that even Officer Combs viewed Bonivert’s locking of the door as a sign Bonivert did not want to talk, much less consent to entry.

Finding the law clearly established by Randolph and Williams, the Ninth Circuit concluded Bonivert’s actions invalidated Ausman’s consent. The Court held that the officers were not entitled to qualified immunity under the consent exception to the Fourth Amendment’s warrant requirement.

The Court further held that the officers were not entitled to qualified immunity under the emergency aid exception because everyone besides Bonivert was safely outside of the house and Ausman had stated that Bonivert had no weapons inside and was not in danger of harming himself. Moreover, the officers had sent a “Code 4” message indicating the officers and people outside were not in danger. The Court also declared there was no justification for entry under the exigency exception because Ausman was outside already with her child, this negating any notion of probable cause for a possible crime in progress. Finally, the Court found that the evidence did not justify the district court’s conclusion that “no reasonable jury could find the use of force within the home excessive.”

The Court concluded that genuine issues of fact prevented a determination of qualified immunity at summary judgment such that the case must proceed to trial. The Court reversed the district court’s grant of summary judgment on qualified immunity grounds and remanded for further proceedings.

For a more detailed discussion of this case, please see Client Alert Vol. 33, No. 7, available at www.jones-mayer.com. 

C. Miranda rights apply to child who was questioned in circumstances where a reasonable child in defendant’s position could have concluded that he was not free to leave and thus “in custody”.

In re I.F., 2018 Cal. App. LEXIS 140 (3rd Dist. Feb. 22, 2018)

Facts: In April 2013, an 8-year old girl and her 12-year old brother, I.F., were at home by themselves one morning when the girl was stabbed to death. I.F. claimed an intruder had committed the crime. Later that day, and in the days that followed, during the course of four interviews, I.F. made a series of inconsistent and cumulatively incriminating statements to police. In the fourth interview, B.F., the father of both children, participated in questioning I.F. Two days after the fourth interview, I.F. was arrested. I.F. was never read his rights under Miranda v. Arizona[7] during any point prior to his arrest.

On May 14, 2013, a petition was filed under Welfare and Institutions Code section 602 alleging that I.F. committed murder (Pen. Code, section 187, subd. (a)), and personally used a knife in the commission of the offense (Pen. Code section 12022, subd. (b)(1)). Following a contested jurisdictional hearing, the juvenile court sustained the petition and found true the allegation that I.F. personally used a knife in the commission of the crime. At the dispositional hearing, I.F. was made a ward of the court and committed to the Department of Corrections and Rehabilitation, Division of Juvenile Justice, for a maximum of 16 years to life, with credit for 908 days.

I.F. appealed, arguing the juvenile court erroneously admitted his pre-arrest statements in violation of his rights under Miranda.

Held: I.F’s statements during his third and fourth interviews should have been suppressed because those interviews constituted custodial interrogations within the meaning of Miranda. The Third District Court of Appeal further held that the admission of those statements was not harmless beyond a reasonable doubt.

The Court began by describing the legal framework under Miranda. The Court noted that police officers are not required to give Miranda warnings to everyone they question.[8] Rather, an officer’s obligation to administer a Miranda warning arises only when a person is “in custody.”[9] Under Thompson v. Keohane,[10] a person is in custody when there is a formal arrest or a restraint on their freedom of movement. But a person is not in custody, if, under the circumstances, ‘“a reasonable person in [his] position would have felt free to end the questioning and leave.”‘[11] Citing People v. Pilster,[12] the Court noted that the “totality of the circumstances surrounding an incident must be considered as a whole” in determining custody and whether a reasonable person would feel free to leave. Citing People v. Aguilera,[13] the Court mentioned several factors[14] for consideration as part of custody determination. The Court observed that under the U.S. Supreme Court’s decision in J.D.B. v. North Carolina,[15] a juvenile’s age is an additional factor taken into custody consideration as to whether a reasonable child in such circumstances would feel free to end the questioning and leave.

The Court applied the J.D.B. v. North Carolina standard to the circumstances I.F. faced during the course of each of the four interviews. Because the first interview was a brief, low-key conversation with a single officer in a public setting in the hospital, the Court found that a reasonable child in I.F.’s situation would feel free to end the interview and leave. In the second interview, I.F. had been told clearly he was free to leave anytime, had been told his father was in the next room, and had seen a cat wander into the interview room. The Court found a reasonable child in I.F.’s situation would feel free to terminate the interview and leave. Accordingly, the Court held that these interviews were non-custodial and the juvenile court properly denied I.F.’s motion to suppress the first two interviews.

Turning to the third interview, the Court noted that on the day of the interview the family had expected to sign some papers and leave, but they were asked to wait. The Court observed that I.F. declined to do the walk-through with the officer when asked, but was not given a choice when asked again, just directed to “speak clearly” by his father. The Court found it unlikely that having declined the walk-through request earlier, a reasonable child would have felt free to refuse the interview when not given a choice. The Court also noted that during the interview, the officers did not clearly inform I.F. that he was free to leave and end the interview, only that he could step outside momentarily. The officers also clearly exhibited the belief that I.F. was to blame for the stabbing and had evidence supporting that belief. The Court found that a reasonable child, understanding that officers saw him as a suspect, would not have felt that he was free to end the third interview and leave.

The Court continued to apply the factors described in Aguilera during the first part of the fourth interview: I.F. “was not given a choice whether to participate in the interview, he was escorted to the interview room by law enforcement, he was not clearly informed that he was free to terminate the interview and leave until the first part of the interview was nearly over, he did not indicate an awareness of any such freedom, and he was interrogated for 97 minutes by an FBI agent and detective who manifested a belief that he was culpable and they had the evidence to prove it.”

In the second part of the fourth interview, the Court noted that when B.F. discussed interview arrangements with law enforcement, no one apparently discussed this with I.F. and there was no evidence that his participation was voluntary. The Court found that with B.F. questioning him, a reasonable child in I.F.’s position might have understood that B.F. had the right to terminate the interview and leave, but would not have assumed that I.F. himself possessed any such right, particularly in view of the fact that B.F. ignored his desire to discontinue the interview only moments earlier.

As part of its examination of the totality of the circumstances, the Court also considered how B.F.’s conflict of interest (as the father of both the slain and the suspect) affected how a reasonable child would perceive the investigation. Though the People argued that B.F.’s interview participation meant that Miranda did not apply because B.F. was not an agent of the government in investigation, the Court found that B.F.’s desire for answers about his daughter’s death prompted him to urge I.F. to cooperate with police, placing B.F. on a “collision course” with I.F.’s Fifth Amendment rights, and contributing to the creation of a coercive atmosphere. The Court found that “[f]ar from demonstrating that the interview was noncustodial, B.F.’s participation would have convinced a reasonable 12-year-old that he had no choice but to submit to questioning.” The Court concluded that having been brought to the district attorney’s office under protest and continuously urged to confess by a grieving parent, a reasonable 12-year-old would have experienced a restraint tantamount to an arrest. The Court held both parts of the fourth interview to be custodial, and thus Miranda warnings were mandatory.

Considering the entire interview process, the Court held that under the totality of the circumstances, a reasonable child would have felt the third and fourth interviews to be custodial, and I.F.’s statements during them should have been suppressed. Finally, the Court concluded that the People did not show that the admission of I.F. statements during the third and fourth interviews was harmless beyond a reasonable doubt.

Accordingly, the Court reversed the juvenile court’s jurisdictional findings and dispositional order, and remanded for a new hearing.

D. Pretrial release officer not entitled to absolute prosecutorial immunity where officer action constitutes recommendation to judge rather than act of advocacy. 

Patterson v. Van Arsdel, 2018 U.S. App. LEXIS 4371 (9th Cir. Feb. 23, 2018)

Facts: James Van Arsdel worked as a Release Assistance Officer in the Yamhill County Circuit Court in Oregon. As part of his duties, Van Arsdel investigated and initiated revocation of pretrial release for criminal defendants who appeared to have violated the terms of their release agreements.

In January 2012, Sarah Patterson was arrested on charges of theft and possession of a controlled substance. Patterson entered into a pretrial release agreement that required her to comply with all laws while on release. In March 2012, while on pretrial release, Patterson was arrested on domestic violence charges. She posted bail and was released. At Patterson’s arraignment on the domestic violence charges, Van Arsdel moved in open court for a revocation of Patterson’s pretrial release and for her arrest. The judge on criminal duty orally denied the motion, displeasing Van Arsdel. Later that day, Van Arsdel provided an unsigned warrant for Patterson’s arrest to Judge Tichenor, someone that he knew well socially outside of work. Van Arsdel’s wife worked for Judge Tichenor as an assistant. Van Arsdel did not attach information that typically corresponded to such a warrant. Nor did Van Arsdel tell Judge Tichenor that the previous judge had denied his motion and arrest warrant earlier that same day. Nor was his friend assigned to the criminal duty roster, like the earlier judge. Judge Tichenor signed the warrant that same day, and at the end of March, Patterson was arrested pursuant to Tichenor’s warrant, and was released two days later.

Patterson filed a 42 U.S.C. section 1983 action against Van Arsdel, arguing that he violated her Fourth Amendment right to be free from unreasonable seizures. Van Arsdel moved to dismiss the complaint, arguing that he was entitled to absolute prosecutorial immunity. The district court held that Van Arsdel was entitled to absolute immunity and dismissed Patterson’s complaint with prejudice. Patterson appealed.

Held: Van Arsdel was not entitled to absolute prosecutorial immunity. In reaching its conclusion, the Ninth Circuit explained that, under Imbler v. Pachtman,[16] officials are absolutely immune against suits under 42 U.S.C. section 1983 that arise from their performance of prosecutorial functions. Immunity depends on an official’s function rather than his or her job title.[17] The Court noted that acts that were “intimately associated with the judicial phase of the criminal process,”[18] also called “advocacy” actions, were entitled to absolute immunity. However, prosecutors were protected by qualified, rather than absolute, immunity when they performed activities outside their core role as courtroom advocates. Here, the Court found that given the similarities between Van Arsdel’s role and those of a parole officer and a law enforcement officer, Van Arsdel’s action in submitting the bare unsigned warrant to Judge Tichenor was akin to making a recommendation that the warrant be signed, just like a parole officer recommending revocation, as in Swift v. California,[19] or like a police officer submitting documentation for an arrest warrant to a judge, as in Malley v. Briggs.[20] Accordingly, Van Arsdel was not entitled to absolute prosecutorial immunity. The Ninth Circuit reversed and remanded.


A. State board does not unlawfully fail to meet and confer with employee association regarding changes board makes to its regulations where parties have no employer-employee relationship.

Cal Fire Local 2881 v. Public Employment Relations Bd, 2018 Cal. App. LEXIS 150 (3rd Dist. Jan. 26, 2018)

Facts: In August 2010, the State Personnel Board made changes in the regulations governing its procedures for adjudicating disciplinary hearings and appeals, which apply uniformly to all employees in the civil service. Cal Fire Local 2881, described as an employee association that “acts as the exclusive representative of a bargaining unit of personnel in various classifications in the civil service who work throughout the state for appointing power Cal Fire,” requested to meet and confer with the state board about the regulation changes, but was rejected. The employee association filed a charge with the Public Employees Relation Board (“PERB”), claiming the State Personnel Board violated Gov. Code section 3519(c),[21] otherwise known as the “Dills Act.” Under this section, it is unlawful for the state to refuse to meet and confer in good faith with a recognized employee organization. Cal Fire Local 2881 requested the PERB to order the State Personnel Board to rescind the new regulations until it first met and conferred with the employee association.

Finding the State Personnel Board was acting in its regulatory capacity, not as an employer, and was not subject to Section 3519, PERB dismissed the charge. Cal Fire Local 2881’s petition for writ of mandate directing PERB to issue a complaint regarding the personnel board’s refusal to meet and confer was denied by a trial court. The employee association subsequently appealed.

Held: The State Personnel Board did not violate a requirement to meet and confer under the Dills Act. The Court explained that, under PERB’s decision in Gonzalez-Coke v. California State Employees Assn.,[22] violating the Dills Act meant that the State Personnel Board would have to have been acting as an employer in changing its own regulations. But the Court found that Cal Fire Local 2881 “completely fail[ed]” to explain how the State Personnel Board’s amendments to its own uniform hearing and appeals procedures translated into acting as an employer with respect to the members of the employee association. The Court added that without any employer-employee relationship existing, “the State Personnel Board cannot have any direct effect on the actual working conditions of the unit members.” The Court of Appeals therefore affirmed the trial court’s judgment.

B. Substantial evidence supports Information Practices Act claim where supervisor shared sensitive information pertaining to employee with other, non-supervisory employee.

Hurley v. California Dept. of Parks and Recreation, 2018 Cal. App. LEXIS 135 (4th Dist. Feb. 21, 2018)

Facts: Delane Hurley was hired in December 2009   by Leda Seals of the Department of Parks and Recreation (“DPR”) to work as a staff services analyst. Seals was Hurley’s direct supervisor throughout Hurley’s time of employment. Seals often discussed overly personal questions with employees during work hours, including discussing sex and sexual orientation. Seals became frustrated by Hurley’s unwillingness to share personal information with her. In January 2011, Hurley met with Seals to discuss adding her domestic partner as a beneficiary on her health insurance. In September 2011, Seals revealed to a DPR nonsupervisory employee that Hurley had failed in her probation in a previous job. Hurley overheard Seals discussing Hurley’s personnel file with the employee, and saw her personnel file open on Seals’ desk. Hurley became sick and vomited. She then went to her office, wrote an email to Seals’ supervisor about the situation, and told Seals she was leaving work.

Hurley went on medical leave the next day, and never returned to work at that office. Hurley testified later at trial that afterwards she was depressed and felt like she was being “unraveled piece by piece,” was “very, very sad” and began seeing a therapist the following month. Hurley also testified she could not stop crying and could not get out of bed, shower, or perform other basic tasks.

Hurley filed a complaint alleging, among other things, that DPR and Seals violated the Information Practices Act of 1977[23] (“IPA”). After a trial, the jury returned a verdict against DPR and Seals on the IPA claim. The trial court denied the defendants’ motions for judgment notwithstanding the verdict. DPR and Seals each appealed, arguing on the IPA claim that there was insufficient evidence to support the jury’s verdicts finding them liable for violation of the IPA.

Held: There was substantial evidence to support the finding that DPR and Seals violated the IPA. The Fourth District Court of Appeal began with a discussion of the IPA, noting that the IPA “generally limits the right of governmental agencies to disclose personal information about an individual and imposes liability on agencies and individuals for improperly disclosing personal information maintained by agencies.” The Court explained that Civ. Code Section 1798.24 of the IPA limits disclosures of personal information maintained by an agency to certain persons and certain circumstances, and specifically that “[a]n agency shall not disclose any personal information in a manner that would link the information disclosed to the individual to whom it pertains” unless such information was relevant and necessary to the work duties of those to whom the information was disclosed.[24] The Court also cited sections of the IPA which show that an agency and individuals[25] can be liable for IPA violations, including if such violations cause an “adverse effect”[26] on the individual whose personal information was disclosed.

The Court of Appeals held that there was substantial evidence supporting the jury’s verdict. The Court found that Seals’ disclosure in September to the non-supervisory employee that Hurley had failed probation for a prior job “clearly was personal information within the meaning of the IPA.” The Court noted that non-supervisory employee was in fact of lesser rank than Hurley, revealing that Seals’ disclosure of Hurley’s information to that employee was not “relevant and necessary” in the course of that employee’s job duties, nor to Seals’ job duties. The Court further found that there was substantial evidence to suggest that the disclosure had an adverse effect on Hurley, shown by her immediate reaction of vomiting after overhearing Seals discussing her personal information, and Hurley’s testimony that she became depressed, had trouble functioning, and began soon after to see a therapist.

Due to the substantial evidence supporting the jury’s verdict on the IPA claim, the Court affirmed the trial court’s denial of the defendants’ JNOV motion.


A. U.S. Supreme Court denies review of Second Amendment case regarding 10-day waiting period.

Silvester v. Becerra, 2018 U.S. LEXIS 897 (U.S. Feb. 20, 2018)

On February 20, 2018, the United States Supreme Court denied the petition for a writ of certiorari in Silvester v. Becerra. Justice Clarence Thomas dissented from the denial of certiorari.

The case was a challenge to California Penal Code sections 26815 and 27540, which established a 10-day waiting period for all lawful gun purchases. The case challenged the application of the full 10-day waiting period to those purchasers (referred to as “subsequent purchasers”) who had previously bought a firearm or had a permit to carry a concealed weapon, and who cleared the required California Bureau of Firearms background check in less than ten days. The subsequent purchaser plaintiffs sought the right to receive the firearm as soon as they passed the background check, rather than wait the additional time until the 10-day period ended.

The district court agreed with the plaintiffs that the additional waiting period violated their Second Amendment rights. On appeal[27], the Ninth Circuit Court of Appeals reversed the district court’s judgment. The Ninth Circuit agreed with the State of California’s contention that a 10-day “cooling off” period was a justifiable safety precaution to deter violence for all purchasers of firearms, regardless of whether they already lawfully possessed a firearm or a permit to carry one, and that the full waiting period need not be suspended once a purchaser had been approved.

Applying intermediate scrutiny[28] analysis, the Ninth Circuit held that the law did not violate the subsequent purchaser plaintiffs’ Second Amendment rights, because the additional waiting period was a small burden to subsequent purchasers, and was a reasonable precaution for the purchase of a second or third weapon, as well as for a first purchase. The Ninth Circuit reasoned that a subsequent purchaser might want a larger capacity weapon than [s]he currently possessed to do more damage when fired into a crowd, yet might be deterred from such violence, like a first time buyer, as time passed in the waiting period.

In his dissent, Justice Thomas said that the Supreme Court should have granted review of the Ninth Circuit’s decision. Thomas concluded that the Ninth Circuit did not actually apply intermediate scrutiny to the waiting period law, but instead improperly applied the more lenient rational-basis[29] review. Justice Thomas observed that the Courts of Appeals generally evaluate Second Amendment claims under intermediate scrutiny, which “requires the government to ‘demonstrate that the harms it recites are real’ beyond ‘mere speculation or conjecture,’ Edenfield v. Fane, 507 U. S. 761, 770-771, 113 S. Ct. 1792, 123 L. Ed. 2d 543 (1993).” Justice Thomas believed the Ninth Circuit did not go beyond speculation in assessing the California waiting period law. Thomas did not see evidence in the form of studies or empirical data in the Ninth Circuit’s reasoning. Thomas also said that the Ninth Circuit did not meaningfully assess whether the 10-day waiting period was reasonably tailored to California’s goal of deterring violence. Thomas concluded that the Ninth Circuit failed to properly apply the intermediate scrutiny standard required for the 10-day waiting period law. Thomas broadened his discussion to describe his view that the current case was “emblematic of a larger trend” in which lower courts failed to protect the Second Amendment to the same extent as they protected other Constitutional rights.

For a more detailed discussion of this case, please see Client Alert Vol. 33, No. 5, available at www.jones-mayer.com.

B. Where multiple interpretations of statutory exception for relic gun collectors exist, state must go through normal rulemaking procedure in announcing policy based on statute.

Doe v. Becerra, 2018 Cal. App. LEXIS 109 (3rd Dist. Feb. 8, 2018

Facts: In May 2014, Bureau of Firearms Chief Stephen J. Lindley sent a letter to California firearms dealers discussing the California Department of Justice’s position on Penal Code section 27535,[30] which both limits the number of handguns that can be purchased in a 30-day period and exempts individuals with the federal collector’s license (and a certificate of eligibility from the Department of Justice (“DOJ”)) from that limit. Lindley’s letter described the DOJ position that the collectors exception was to be limited to curio and relic handguns, explaining that “the exemption provided in … [S]ection 27535, subdivision (b)(9), shall not be used for the sale of any handguns other than those defined as curio and relics under federal law.” Prior to announcing this policy via the letter, DOJ did not follow the rulemaking procedures set forth in the Administrative Procedure Act (“APA”).[31]

Two licensed firearms collectors who had current DOJ eligibility certificates filed a complaint challenging the DOJ policy. Seeking declaratory relief, the two collectors alleged that a controversy existed between plaintiffs and defendants regarding the interpretation of Section 27535, and whether it only exempted purchases involving curios or relics. They also alleged that the DOJ policy was invalid because it was not adopted in compliance with the APA.

The trial court granted defendants’ motion for summary judgment and denied plaintiff’s cross-motion for summary judgment on plaintiffs’ complaint for declaratory relief. The trial court ruled that DOJ’s position embodied the only legally tenable interpretation of Section 27535. Plaintiffs appealed.

Held: The Third District Court of Appeal held that DOJ’s 2014 interpretation of Section 27535 was void because the DOJ did not comply with the APA in adopting the policy; and that properly licensed firearms collectors[32] were exempt from Section 27535’s one gun purchase per 30-days rule for purchases of any handgun, not just curio and relic handguns.

In reaching its conclusion, the Court noted that the APA sets forth procedures for the adoption of an administrative regulation and provides that a failure to follow them voids the agency action. The APA defines “regulation” as “every rule, regulation, order, or standard of general application…adopted by any state agency to implement, interpret, or make specific the law enforced or administered by it, or to govern its procedure.”[33] Under Gov. Code section 11340.9(f), APA requirements do not apply where a regulation has only one possible interpretation.

The Court observed that “the exemption at issue in this case is described in the legislative history as applying to collectors without any indication of a further limitation on the type of handguns that may be purchased,” which the Court perceived as an alternative interpretation of Section 27535. As such, the Court found that the defendants had not established that their interpretation followed directly and inescapably from the pertinent provisions of law. Accordingly, the Court held that the exception to the rulemaking provisions of the APA set forth in Government Code section 11340.9, subdivision (f), governing statutes with only one possible interpretation, did not apply and the policy reflected in Chief Lindley’s 2014 letter was invalid for not having been developed under the typical APA rulemaking procedures.

Having established more than one possible interpretation of Section 27535, the Court chose to resolve “any ambiguity” regarding the proper construction of the statute and construed it as allowing anyone with the federal license to collect curio and relic firearms (and who had the DOJ certificate of eligibility) to purchase more than one handgun within 30 days regardless of the type of handgun being purchased. The Court found that language of Section 27535, its context, and the relevant legislative history together showed the legislative intent to exempt all transactions involving licensed firearms collectors who had a DOJ certificate of eligibility and that Section 27535, subd. (b)(9) must be interpreted accordingly.

The Court of Appeal reversed the judgment of the trial court, and remanded the matter for further proceedings.

[1] 680 F.3d 1148, 1152 (2012).

[2] 726 F.2d 459 (1983).

[3] Saucier v. Katz, 533 U.S. 194, 201 (2001), rev’d on other grounds by Pearson v. Callahan, 555 U.S. 223 (2009).

[4] Mattos v. Agarano, 661 F.3d 433, 442 (9th Cir. 2011).

[5] 547 U.S. 103 (2006).

[6] 521 F.3d 902, 907 (8th Cir. 2008).

[7] 384 U.S. 436 (1966).

[8] Oregon v. Mathiason, 429 U.S. 492, 495 (1977).

[9] Ibid.

[10] 516 U.S. 99, 112 (1995).

[11] People v. Leonard, 40 Cal.4th 1370, 1400 (2007).

[12] 138 Cal.App.4th 1395, 1403 (2006).

[13] 51 Cal.App.4th 1151, 1162 (1996).

[14] “whether contact with law enforcement was initiated by the police or the person interrogated, and if by the police, whether the person voluntarily agreed to an interview; whether the express purpose of the interview was to question the person as a witness or a suspect; where the interview took place; whether police informed the person that he or she was under arrest or in custody; whether they informed the person that that he or she was free to terminate the interview and leave at any time and/or whether the person’s conduct indicated an awareness of such freedom; whether there were restrictions on the person’s freedom of movement during the interview; how long the interrogation lasted; how many police officers participated; whether they dominated and controlled the course of the interrogation; whether they manifested a belief that the person was culpable and they had evidence to prove it; whether the police were aggressive, confrontational, and/or accusatory; whether the police used interrogation techniques to pressure the suspect; and whether the person was arrested at the end of the interrogation…No one factor is dispositive. Rather, we look at the interplay and combined effect of all the circumstances to determine whether on balance they created a coercive atmosphere such that a reasonable person would have experienced a restraint tantamount to an arrest.”

[15] 564 U.S. 261 (2011).

[16] 424 U.S. 409 (1976).

[17]  Kalina v. Fletcher, 522 U.S. at 127 (1997).

[18] Imbler, 424 U.S. at 430

[19] 384 F.3d 1184, 1193 (9th Cir. 2004).

[20] 475 U.S. 335 (1986).

[21] “It shall be unlawful for the state to…[r]efuse or fail to meet and confer in good faith with a recognized employee organization…”

[22] (2000) PERB Dec. No. 1411-S, pp. 17–18 & fn. 11 [25 PERC § 32006].

[23] Civ. Code, section 1798 et seq.

[24] “An agency shall not disclose any personal information in a manner that would link the information disclosed to the individual to whom it pertains unless the information is disclosed, as follows: …(d) To those officers, employees, attorneys, agents, or volunteers of the agency that has custody of the information if the disclosure is relevant and necessary in the ordinary course of the performance of their official duties and is related to the purpose for which the information was acquired.”

[25] Civ. Code section 1798.53.

[26] Civ. Code section 1798.45: “An individual may bring a civil action against an agency whenever such agency…[f]ails to comply with any other provision of this chapter [e.g., [Section] 1798.24], or any rule promulgated thereunder, in such a way as to have an adverse effect on an individual.”

[27] Silvester v. Harris, 843 F.3d 816 (9th Cir. 2016).

[28] To pass intermediate scrutiny, the challenged law must;

(1) Further an important government interest.

(2) Must do so by means that are substantially related to that interest.

[29] In order for a law to pass rational basis review:

(1) The law must have a legitimate state interest;

(2) There must be a rational connection between the law’s means and goals.

[30] The statute provides, in relevant part:

“(a) No person shall make an application to purchase more than one handgun within any 30-day period.

(b) Subdivision (a) shall not apply to any of the following:…

(9) Any person who is licensed as a collector pursuant to Chapter 44 (commencing with Section 921) of Title 18 of the United States Code and the regulations issued pursuant thereto, and has a current certificate of eligibility issued by the Department of Justice pursuant to Article 1 (commencing with Section 26700) of Chapter 2.”

[31] Gov. Code, section 11340 et seq.

[32] The holding applies to licensed firearms collectors who also had the DOJ eligibility certificate.

[33] California Gov. Code section 11342.600.