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A. Juvenile correctional officer improperly granted summary judgment on a juvenile detainee’s 42 U.S.C. section 1983 Fourteenth Amendment claims because a jury could find that officer’s alleged actions violated the detainee’s right to privacy when he allegedly watched her shower multiple times, violated her right to bodily integrity, and violated the detainee’s right to be free from punishment. Nor was officer entitled to qualified immunity.

Vazquez v. Cnty. of Kern, 2020 U.S. App. LEXIS 3188 (9th Cir. Jan. 31, 2020)

Facts: Samantha Vazquez was arrested on an outstanding warrant and taken to Kern County Juvenile Hall in January 2015. She was housed in an all-female unit where Juvenile Corrections Officer George Anderson worked. Juvenile hall staff frequently placed wards on work “details,” including laundry, kitchen, and clean-up.

According to Vazquez, Anderson purposefully selected her to work details with him. During her deposition, Vazquez testified that Anderson said inappropriate things to her such as calling her “babe” and telling her she had a “big butt.” She testified that Anderson “grabbed [her] face,” “touched [her] shoulders,” and talked with her about her shower gown. Vazquez described one specific incident where she Anderson told her about a “rated R” dream he had about her. She testified that he told her to shut the door and Anderson said that, in the dream, she “grabbed him by his t-shirt,” “gave him a kiss” and “after that [they] ended up going to a room and, like, having fun and stuff.” After that, she testified that he told her “to get close to him, like, to the point where he had opened his knees and [she] was right in the middle of him, and [he] told [her] that he wanted his dream to come true.” Vazquez testified that she moved away from him after and felt “really, really awkward.”

Vazquez also alleged that Anderson would tell her which shower stalls to use and that he looked at her inappropriately while she was showering on three or four occasions. She testified that she caught him staring at her in the shower when he was standing at the staff counter and that she tried to cover herself up (the record reflected that a person sitting at the staff counter could look into at least one of the shower stalls through a gap in the shower curtains). She also testified that Anderson told her he had seen her in the shower, and that she should leave her boyfriend and “find someone better like him.”

Vazquez reported her allegations to a substance abuse specialist, who felt Vazquez was being truthful. The County of Kern (the “County”) began an investigation led by Shaun Romans. Romans interviewed fifty-five people and reviewed three interviews conducted by the Bakersfield Police Department. The investigation lasted eight months. Romans testified that he “leaned toward [the allegations] being true.” The allegations were sustained by the disciplinary review board at the probation department. The County then began the process of terminating Anderson’s employment.

Vazquez filed an action against Anderson and his supervisor, Heathe Appleton. She brought claims under 42 U.S.C. section 1983, alleging that Anderson’s conduct violated her constitutional rights. Vazquez argued that while she was in custody, Anderson made sexual comments to her, groomed her for sexual abuse, and looked at her inappropriately while she was showering. She also alleged a claim against Appleton for supervisory liability.

Anderson testified that that he was never told that he could not sit at the staff counter while female wards showered, and that he had sat there once or twice. He testified that he had selected Vazquez to work with him once or twice because she supplied him with useful gang intelligence and because she was a good worker. He said that “maybe once” he had been alone in a room with Vazquez for twenty minutes.

Several staff members testified that they observed Anderson alone with female wards, including Vazquez. Another staff member testified that she observed Anderson sitting at the staff counter while female wards showered. The Director of Kern County Juvenile Hall testified that at the time of Vazquez’s allegations, Kern County had policies in place at the juvenile hall to prevent or deter sexual abuse of wards. She further testified that certain standards in place at the time implemented the Prison Rape Elimination Act (“PREA”).[1]

The Director also testified that Section 1425 of the Juvenile Hall Basic Staff Rules, which were in effect at the time of the allegations, stated: “Staff members are not permitted alone in the rooms with minors of the opposite gender except during an emergency. For security purposes, staff should avoid being alone with any minor in their room.” She testified that the Juvenile Hall Administrative Manual required supervision of the showers to be provided by staff of the same gender as the youth and that “except in exigent circumstances or incidental to a routine youth safety check the youth will be permitted to shower, perform bodily functions, and change clothing without nonmedical staff of the opposite gender viewing their breasts, buttocks, or genitalia.”

The District Court ultimately granted Anderson’s and Appleton’s motions for summary judgment. The District Court concluded that even if Vazquez’s sexual abuse allegations were true, Anderson’s alleged conduct did not violate her constitutional rights; that Anderson’s alleged conduct was not sufficiently frequent to violate Vazquez’s right to privacy; and that even assuming Anderson’s conduct rose to the level of a constitutional violation, he was entitled to qualified immunity. Vazquez appealed.

Held: The Ninth Circuit Court of Appeals explained that the right to bodily privacy under the Fourteenth Amendment was established in the circuit in 1963, and extended this right to prison inmates in 1985. [2] The Circuit had also established that a pretrial detainee has “at least the same right to bodily privacy as a prisoner,” Byrd v. Maricopa Cty. Bd. of Supervisors, 845 F.3d 919, 923 (9th Cir. 2017).

The Court observed that in Grummett v. Rushen, 779 F.2d 491 (9th Cir. 1985), a class action argued that a “policy and practice of allowing female correctional officers to view male inmates in states of partial or total nudity while dressing, showering, being stripped searched, or using toilet facilities violated [the inmates’] rights of privacy.” (Id. at 492.) The Ninth Circuit in that case had noted that female guards were not assigned to positions requiring unrestricted and frequent surveillance, female guards did not accompany male inmates to the showers, and females were assigned to the more distant position overlooking showers, where the surveillance was obscured. Grummett concluded that the inmates had not demonstrated that the restricted observations were “so degrading as to require intervention by this court.” (Id. at 494.) In Sepulveda v. Ramirez, 967 F.2d 1413 (9th Cir. 1992), the Ninth Circuit had affirmed a lower court’s order that an officer there was not entitled to summary judgment on the basis of qualified immunity, concluding that the plaintiff’s experience was “far more degrading” Id. at 1415-16 than the situation faced by the inmates in Grummett. The Sepulveda Court explained that, unlike in Grummett, the defendant’s view of the parolee was “neither obscured nor distant.” Id.

Here, Vazquez alleged that Anderson watched her shower multiple times and looked into her room once when her privacy sign was up, while Anderson argued that detention facility security and safety provided compelling state interest for his behavior. However, noting testimony from other staff and the director of the juvenile hall that Anderson’s actions were against institution policy, the Ninth Circuit found no such compelling state interest for the alleged actions. Moreover, viewing the evidence in the light most favorable to Vazquez, the Court found that Anderson’s view was not necessarily “obscured and from a distance.” Even if it was, the question of whether his observation was “infrequent and casual” remained in dispute. The Court noted there was evidence that Anderson directed Vazquez to use a certain shower stall so he could obtain the best view. The Court therefore held that a reasonable jury could conclude that Anderson violated Vazquez’s Fourteenth Amendment right to bodily privacy.

The Court also concluded that a reasonable jury could find that Anderson’s alleged conduct involving unwanted sexual contact or harassment violated Vazquez’s Fourteenth Amendment right to bodily integrity, which required the Court to “use the ‘shocks the conscience’ test.” Fontana v. Haskin, 262 F.3d 871, 882 n.7. (9th Cir. 2001) (citing Cty. of Sacramento v. Lewis, 523 U.S. 833, 846 (1998)). That test’s threshold question was “whether the behavior of the governmental officer is so egregious, so outrageous, that it may fairly be said to shock the contemporary conscience.” Sacramento, 523 U.S. at 848 n. 8. In Fontana, the Court had found that an officer who allegedly touched and made sexual comments to an arrested plaintiff in the back of a police vehicle abused his power and violated the plaintiff’s bodily integrity. Here, the Court found Vazquez’s assertions that Anderson touched her and made sexual comments to her sufficiently similar to those in Fontana. Moreover, the Court determined that the context of Vazquez’s allegations (she was a female ward at a juvenile hall, Anderson was older and larger than she was, wore a uniform, and had the power to discipline her if she refused to follow his instructions) demonstrated that she was at least as vulnerable as the Fontana plaintiff. Thus, a jury could find that Anderson’s alleged conduct “was egregious and outrageous and shocks the conscience as a matter of law.” Fontana, 262 F.3d at 882 n.7. The Court also concluded that a jury could find that Anderson violated Vazquez’s Fourteenth Amendment right to be free from punishment.

The Court next considered the District Court’s qualified immunity conclusion. “Qualified immunity attaches when an official’s conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.” Kisela v. Hughes, 138 S. Ct. 1148, 1152 (2018) (internal quotation marks and citation omitted). “A clearly established right is one that is sufficiently clear that every reasonable official would have understood that what he is doing violates that right.” Mullenix v. Luna, 136 S. Ct. 305, 308 (2015) (internal quotation marks and citation omitted).

Given that the Ninth Circuit had clearly recognized a Fourteenth Amendment right to bodily privacy, the Juvenile Hall administrative policies, and the PREA training Anderson likely attended, the Ninth Circuit concluded that Anderson was not entitled to qualified immunity for Vazquez’s Fourteenth Amendment bodily privacy claim.

The Court also concluded that Anderson was not entitled to qualified immunity for Vazquez’s bodily integrity or punishment claims. The Court observed that “[i]n the simplest and most absolute of terms the . . . right of prisoners to be free from sexual abuse [is] unquestionably clearly established [in the Ninth Circuit] . . . and no reasonable prison guard could possibly [believe] otherwise.” Schwenk v. Hartford, 204 F.3d 1187, 1197 (9th Cir. 2000). The Court explained that beyond the clearly established case law, training, and juvenile hall policies, it was obvious that a juvenile corrections officer should not sexually harass or abuse a juvenile ward as it is always wrong for a juvenile corrections officer to engage in such conduct. See Sharp v. Cty. of Orange, 871 F.3d 901, 912 (9th Cir. 2017).

Regarding Vazquez’s supervisory liability claim against Appleton, Anderson’s supervisor, the Court observed that “[a]lthough there is no pure respondeat superior liability under [Section] 1983, a supervisor is liable for the acts of his subordinates if the supervisor participated in or directed the violations, or knew of the violations [of subordinates] and failed to act to prevent them. Preschooler II v. Clark Cty. Sch. Bd. of Trustees, 479 F.3d 1175, 1182 (9th Cir. 2007) (internal quotation marks and citation omitted). The Court found that Appleton knew or reasonably should have known of Anderson’s violations and failed to act to prevent them. The Court noted that Appleton had observed Anderson alone with female wards on more than one occasion and failed to intervene; Anderson also testified that Appleton gave him permission to be alone in a cell with female wards during work details; and Appleton was aware of, and even brought up with a supervisor, a prior incident involving Anderson’s supervision of female wards’ showers approximately six months before Vazquez raised her allegations. The Court thus concluded that a jury could find that Appleton knew or reasonably should have known of Anderson’s violations and failed to act to prevent them.

Because the Ninth Circuit Court of Appeals concluded that the District Court erred when it granted Anderson’s and Appleton’s motions for summary judgment, the Ninth Circuit accordingly reversed and remanded.

B. Qualified immunity only extends to officers using deadly force with an objectively reasonable basis for believing their own safety or safety of others is at risk.

Orn v. City of Tacoma, 949 F.3d 1167 (9th Cir. 2020)

Facts: In October 2011, a Tacoma Police Department (“Department”) officer noticed Than Orn driving without his headlights on and attempted to pull Orn over. Orn did not pull over, but instead embarked on a roughly 15-minute journey home to his apartment complex. Orn drove between 25 and 35 miles per hour and stopped at traffic lights and stop signs. The officer pursued Orn, along with additional Department officers who joined the slow-speed pursuit. These included Officer Kristopher Clark and his partner Donald Rose who were driving in a Department sport utility vehicle. At different points during the pursuit, police units attempted unsuccessfully to box Orn, drove in front of Orn’s vehicle to block his path, and put down spike strips but Orn evaded these attempts (to avoid the spike strips, Orn swerved away from the officers and into the oncoming lane of traffic where no oncoming vehicles were traveling toward him at the time).

During the pursuit, officers accurately predicted that Orn might be going home to the apartment complex address to which his vehicle was registered. Clark knew that the complex had a long outdoor parking lot with only two entrances, one at the north end and the other at the south end. When Clark saw Orn head toward the south entrance with police vehicles pursuing, Clark entered the north entrance and positioned his SUV across a narrow point of the single access lane that ran the length of the parking lot, in an effort to prevent Orn from exiting the complex on the north end. Orn proceeded slowly down the access lane toward the north end of the complex. When he approached Clark’s SUV he came to a brief stop. According to Orn (and disputed by Clark), Clark was standing on the grassy area to the left of his SUV as Orn approached. Clark had his gun drawn with the barrel pointed toward the ground and repeatedly yelled at Orn to stop. Orn instead moved slowly away from Clark and attempted to maneuver his vehicle in a narrow opening between Clark’s SUV and a parked vehicle. Another officer, Steven Butts, positioned his vehicle to cut off any path for Orn to escape through the north entrance.

In response, Orn turned his vehicle more sharply to the right to avoid hitting Butts’s vehicle. Orn and officers on the scene later estimated Orn’s speed at five miles per hour. Orn clipped the rear passenger side panel of Clark’s SUV and also struck the right front corner of Officer Butts’s vehicle in the process. According to Orn (and disputed by Clark), just after his vehicle moved past Clark’s SUV, Orn saw Clark run toward his vehicle on the passenger side and shoot at Orn, striking him in the spine. Clark ran behind Orn’s vehicle as it sped away, firing seven more rounds through the rear windshield. Orn’s vehicle subsequently was stopped after he hit several parked cars and crashed into a chain-link fence. Officers took Orn into custody. Three of the ten rounds Clark fired struck Orn. Orn was left paralyzed from the waist down by the bullet that lodged in his spine.

Orn was acquitted of using his vehicle to assault Clark and also acquitted of attempting to elude a pursuing police vehicle. He was convicted of the lesser-included offense of failure to obey a law-enforcement officer, and was ordered to pay a fine of $250.

Orn sued Clark and the City of Tacoma under 42 U.S.C. section 1983, alleging a violation of his Fourth Amendment right to be free from the use of excessive force. Clark moved for summary judgment on the basis of qualified immunity. The District Court denied the motion, and Clark took an interlocutory appeal from that order.

Held: The Ninth Circuit Court of Appeals explained as an important initial matter that, in an interlocutory appeal challenging the denial of qualified immunity, the Court had to construe the facts in the light most favorable to the plaintiff.[3] The Court explained that because nothing in the record blatantly contradicted Orn’s account of the events, the Court must assume that a jury could find Orn’s account of what happened credible, even if it conflicted with Clark’s account. For the Court’s purposes here, therefore, all disputed factual issues were resolved in Orn’s favor.

The Court first held that, viewing the facts in the light most favorable to Orn, a reasonable jury could conclude that Officer Clark violated Orn’s Fourth Amendment right to be free from the use of excessive force. Thus, the Court determined that Clark did not have an objectively reasonable basis for believing that Orn posed a threat of serious physical harm, either to the officer himself or to others. The Court noted that construing the facts in Orn’s favor, he never targeted officers with his vehicle or forced other vehicles off the road. Moreover, he traveled at normal speeds and stopped at traffic lights and stop signs throughout the pursuit.

Turning to the second step of the qualified immunity analysis, the Court held that Orn’s right to be free from the use of excessive force was clearly established at the time of the shooting. The Court noted that in October 2011, at least seven circuits had held that an officer lacks an objectively reasonable basis for believing that his own safety is at risk when firing into the side or rear of a vehicle moving away from him. The Ninth Circuit also noted that in Adams v. Speers, 473 F.3d 989 (9th Cir. 2007), the Circuit itself had held that an officer violated the Fourth Amendment by firing through the front windshield of a vehicle moving backward away from him.

The Court stated that, taking the facts in the light most favorable to Orn, a reasonable jury could conclude both that Officer Clark was never in the path of Orn’s vehicle and that the officer fired through the passenger-side windows and rear windshield as the vehicle was moving away from him. The Court further held that under Orn’s version of events, he never engaged in any conduct that suggested his vehicle posed a threat of serious physical harm to another officer on the scene, or to anyone else in the vicinity.

The Court thus concluded that Clark was not entitled to qualified immunity. Accordingly, the Ninth Circuit Court of Appeals affirmed the District Court’s order denying Clark’s motion for summary judgment.

C. In a capital case, ample evidence supported a finding that defendant’s waiver of his Miranda rights was voluntary, knowing, and intelligent. Two police officers explained each Miranda right to defendant, after which he indicated that he understood.

People v. Frederickson, 8 Cal. 5th 963 (2020)

Facts: On June 13, 1996, 30-year-old Scott Wilson was working as a customer service manager at the HomeBase home improvement store in Santa Ana when Daniel Carl Frederickson walked in and shot Wilson once in the head, killing him. Santa Ana police officers arrived at the store within a few minutes of the shooting. Officer Ronald Dryva was on the scene for two to three hours interviewing witnesses. During that time, Frederickson called and spoke to an employee without identifying himself by name. The employee handed the phone to Dryva, but Frederickson believed he was still speaking with the employee. Dryva heard the caller admit he shot Wilson because he was frustrated and angry, and say that he would “probably” turn himself in that night. Frederickson did not do so, but officers located him at his residence the following day and arrested him. They found a .32-caliber revolver containing five live rounds and one empty round.

Santa Ana police investigators Phillip Lozano and Mark Steen interviewed Frederickson shortly after his arrest on June 14. Steen advised Frederickson of his Miranda rights. (Miranda v. Arizona (1966) 384 U.S. 436.) Following each advisement, Steen asked Frederickson if he understood. To each question, Frederickson replied, “Yes, sir,” acknowledging he understood his rights and agreed to speak with the officers. Steen then proceeded to question Frederickson about his involvement in the crime. Early in the questioning, Frederickson said, “Hey, when am I going to get a chance to call my lawyer. It’s getting late, and he’s probably going to go to bed pretty soon.” Steen replied, “Your lawyer? Well you can call your lawyer after we’re done in our facility.” Frederickson said, “Oh, okay. So what do we got to do in our facility here?” Steen explained, “Well, we’re conducting this interview.” When Frederickson asked if they could finish the interview the following day, Steen replied, “Um, we can continue talking tomorrow; however, we’re not going to continue the interview.” Steen then continued asking Frederickson about the murder.

Frederickson subsequently admitted he had been committing robberies for nearly 15 years and that he walked into the HomeBase with “a game plan,” he identified Wilson as the manager and followed him to the safe. Wilson ignored Frederickson’s instructions to “put that money in this box.” Frederickson said that “the next thing I knew, you know, [the gun] was at his temple.” He expected Wilson to hand over the money and was surprised and “pissed off” that Wilson refused. After firing the shot, he ran out of the store and into his van. Frederickson, crying as he spoke to the investigators, explained that he called the HomeBase store approximately one hour later and said to the manager “I told him, ‘You son of a [expletive]. That [expletive] didn’t need to die.’ … that [expletive] died protecting [the money].” Frederickson told the investigators, “…if I get caught, you know, I’ll go back in for about two or three years and, you know, … get out and try it again later.”

The next day Frederickson admitted to a newspaper reporter who interviewed Frederickson in jail that he was attempting to rob the store and shot Wilson during the attempt.

In July 1996, Frederickson sent Officer Lozano a letter asking to speak with the investigators again. 0n August 12, 1996, Lozano and Steen again interviewed Frederickson. Lozano advised Frederickson that he was represented by the public defender, who had invoked Frederickson’s right to remain silent. Lozano asked if Frederickson would like to waive his right to have an attorney present. Frederickson replied, “I waive that, and I have since fired him.” Lozano advised Frederickson of his Miranda rights, and Frederickson signed a waiver. Lozano then interviewed Frederickson, who explained that he had “held back some info” regarding accomplices. Frederickson discussed these accomplices, along with the gun used in the murder, the robbery, and the spent shell casing.

In June 1997, Frederickson filed a pretrial motion to suppress his statements from the June 14 interview. He also moved to dismiss the information on the grounds that his confession was obtained in violation of Miranda, and without the confession, there was insufficient evidence to hold him to answer on the murder charge. In September 1997, Frederickson filed a motion to suppress both the June 14 confession and his statements from the August 12 interview. He argued the August statements “still carried the taint” of the June 14 interview at which the investigators engaged in misconduct by failing to notify his counsel when he requested to speak with them. Frederickson further argued that his “known history of mental illness and current treatment with psycho[tropic] medications are factors to consider.”

At a hearing, the trial court denied the motions. The trial court found that Frederickson’s statements during the June 14 interview expressed a desire to speed up the interview so that he could call his attorney when the interview was over, but did not constitute a clear request for an attorney. The trial court found that because Frederickson initiated contact before the August interview and signed written waivers of the presence of counsel and of his Miranda rights, “defendant can hardly complain that his statements were coerced, involuntary, or in violation of his right to counsel.” The trial court further found that Frederickson presented no evidence of any mental defect that would preclude him from understanding and waiving his rights.

A jury convicted Frederickson of first degree murder. The jury found true the special circumstance allegation that Frederickson committed the murder while engaged in the commission of the attempted robbery, and it also found true that Frederickson personally used a firearm while committing the crime. After a sanity trial, the jury found Frederickson was sane at the time of the crimes. After a penalty trial, the jury returned a verdict of death, and the trial court imposed a judgment of death. An automatic appeal followed.

Held: On appeal, Frederickson asserted that the trial court erred in failing to suppress his statements from the June 14 interview because he did not validly waive his right to counsel. He further asserted the trial court erred in failing to suppress statements from the August 12 interview because there was no break in the causal chain from the erroneous first interrogation.

The California Supreme Court explained that the United States Supreme Court in Miranda set forth prophylactic measures to protect an individual’s right against self-incrimination from curtailment under the inherently compelling pressures of custodial interrogation. A suspect “must be warned prior to any questioning that he has the right to remain silent, that anything he says can be used against him in a court of law, that he has the right to the presence of an attorney, and that if he cannot afford an attorney one will be appointed for him prior to any questioning if he so desires.” (Miranda, supra, 384 U.S. 436, 479.) After a suspect has heard and understood these rights, he or she may waive them.[4] However, the prosecution bears the burden of showing that the waiver was knowing, voluntary, and intelligent under the totality of circumstances. (People v. Linton (2013) 56 Cal.4th 1146, 1171; see Maryland v. Shatzer (2010) 559 U.S. 98, 104.)

The Supreme Court noted that in its prior case People v. Whitson,[5] a police officer interviewed the defendant on three separate occasions. At the beginning of each interview, the officer advised the defendant of his rights under Miranda and asked whether he understood them. Each time, the defendant responded that he did. The officer then proceeded to question the defendant. The Court had concluded the defendant’s statements were voluntary, noting that the record was devoid of any suggestion that the police resorted to physical or psychological pressure to elicit them. The Court had also concluded the defendant was aware of the rights he was waiving and the consequences of his decision to do so, observing that there was no evidence that during any interview his judgment was clouded or otherwise impaired. The Court had further concluded that the defendant’s waiver was intelligent, noting that there was no evidence that he lacked sufficient intelligence to understand his rights or the consequences of waiving them. The Whitson Court held: “Although the police officers did not obtain an express waiver of defendant’s Miranda rights, decisions of the United States Supreme Court and of this court have held that such an express waiver is not required where a defendant’s actions make clear that a waiver is intended.” (Ibid.; see North Carolina v. Butler (1979) 441 U.S. 369, 374–375.)

Here, the California Supreme Court found “ample evidence support[ed] a finding … that [Frederickson]’s waiver was voluntary, knowing, and intelligent. Officers Steen and Lozano explained each Miranda right to [Frederickson], after which he indicated that he understood. Following a complete admonition, [Frederickson] began to discuss his role in the murder. His actions made clear that a waiver was intended.”

The Court also concluded that Frederickson did not unequivocally invoke his right to counsel when he subsequently asked, “Hey, when am I going to get a chance to call my lawyer? It’s getting late, and he’s probably going to go to bed pretty soon.” The Court explained that when a defendant has waived his Miranda rights and agreed to speak with police, any subsequent invocation of the right to counsel must be unequivocal and unambiguous. (Davis v. United States (1994) 512 U.S. 452, 461–462.) “[A]fter a knowing and voluntary waiver, interrogation may proceed ‘until and unless the suspect clearly requests an attorney.’” (People v. Williams (2010) 49 Cal.4th 405, 427.) The Court held that Frederickson’s statement that it was getting late and his question about when he would get to call his lawyer did not amount to an unequivocal and unambiguous request for counsel. The Court explained that a reasonable officer in Steen and Lozano’s position would have concluded that the remark expressed concern over the length of the interview and a desire to contact counsel when the interview was over. Frederickson never said that he wanted to stop the interview immediately and consult counsel.

The California Supreme Court thus concluded that Frederickson’s statements from the June 14 interview were properly obtained, and so it followed that his subsequent statements at the August 12 interview did not carry any taint from the previous interview. The Court observed that the investigators readvised Frederickson of his Miranda rights before beginning the August 12 interview, and that he signed a waiver. The Court also determined that the record did not demonstrate that defendant failed to understand or validly waive his rights. Accordingly, the Court affirmed on these matters.

D. No extension of Bivens damages remedy for cross-border shooting because such a claim has foreign relations and national security implications and involves tortious conduct abroad.

Hernandez v. Mesa, 140 S. Ct. 735 (2020)

Facts: Sergio Adrián Hernández Güereca, a 15-year-old Mexican national, was with a group of friends in a concrete culvert that separates El Paso, Texas, from Ciudad Juarez, Mexico. The border runs through the center of the culvert, which was designed to hold the waters of the Rio Grande River but is now largely dry. Border Patrol Agent Jesus Mesa, Jr., detained one of Hernández’s friends who had run onto the United States’ side of the culvert. After Hernández, who was also on the United States’ side, ran back across the culvert onto Mexican soil, Agent Mesa fired two shots at Hernández; one struck and killed him on the other side of the border.

According to Hernández’s parents, he was playing a game with his friends that involved running back and forth across the culvert separating El Paso, Texas, from Ciudad Juarez, Mexico. According to Agent Mesa, Hernández and his friends were involved in an illegal border crossing attempt, and they pelted him with rocks.

The shooting drew international attention, and the United States Department of Justice investigated. The Department concluded that Agent Mesa had not violated Customs and Border Patrol policy or training, and declined to bring charges or take other action against him. The United States also denied Mexico’s request for Agent Mesa to be extradited to face criminal charges in Mexico.

Hernández’s parents sued for damages in the United States District Court for the Western District of Texas under the United States Supreme Court’s decision in Bivens v. Six Unknown Fed. Narcotics Agents, 403 U. S. 388 (1971), alleging that Mesa violated Hernández’s Fourth and Fifth Amendment rights. The District Court dismissed their claims, and the United States Court of Appeals for the Fifth Circuit affirmed. After the United States Supreme Court vacated that decision and remanded for further consideration in light of Ziglar v. Abbasi, 582 U. S. ___, 137 S. Ct. 1843, 198 L. Ed. 2d 290 (2017), the Fifth Circuit again affirmed, refusing to recognize a Bivens claim for a cross-border shooting. The parents petitioned and the United States Supreme Court granted certiorari.

Held: The Supreme Court affirmed in a 5-4 decision. Justice Alito was joined in the opinion by Justices Roberts, Gorsuch, Thomas, and Kavanaugh. The Court observed that in Bivens, the Court broke new ground by implying a Fourth Amendment claim for damages even though no federal statute authorized such a claim. The Court later extended Bivens’ reach to cover two additional Constitutional claims under the Fifth and Eighth Amendments.[6] However, the Court here explained, Bivens’ expansion has since become “a ‘disfavored’ judicial activity” (Abbasi, supra, at ___, 137 S. Ct. 1843, 198 L. Ed. 2d 290, 299), and the Court has generally expressed doubt about its authority to recognize causes of action not expressly created by Congress.[7] The Court added that the Court’s justices had previously “gone so far as to observe that if ‘the Court’s three Bivens cases [had] been . . . decided today,’ it is doubtful that we would have reached the same result, 582 U. S., at ___, 137 S. Ct. 1843, 198 L. Ed. 2d 290, at 309. And for almost 40 years, we have consistently rebuffed requests to add to the claims allowed under Bivens.”

With the rarity of Bivens extensions thus established, the Court explained the applicable test. When considering whether to extend Bivens, the Court uses a two-step inquiry that first asks whether the request involves a claim that arises in a “new context” or involves a “new category of defendants.”[8] If so, the Court then asks whether there are any “special factors [that] counse[l] hesitation” about granting the extension. Abbasi, supra, 198 L. Ed. 2d 290, at 309.

The Court concluded that it was “glaringly obvious” that the parents’ Bivens claims here arose in a new context. The Court explained that the parents’ claims were based on the same constitutional provisions as claims in cases in which damages remedies were previously recognized, but the context—a cross-border shooting—was significantly different . . . from previous Bivens cases. The Court explained that the petitioners’ cross-border shooting claims involved a “risk of disruptive intrusion by the Judiciary into the functioning of other branches.” Abbasi, supra, ___, 137 S. Ct. 1843, 198 L. Ed. 2d 290.

The Court consequently turned to the second step of the inquiry, concluding that multiple, related factors counseled hesitation before extending Bivens remedies into this new context. The Court explained that expanding Bivens here would impinge on foreign relations and risk interfering with the Executive Branch’s lead role in foreign policy and diplomacy. The Court found another factor in the risk of undermining border security, given its connection to national security. Moreover, a third factor was presented by the fact that Congress has repeatedly declined to authorize the award of damages against federal officials for injury inflicted outside U. S. borders. The Court explained that Congress’s decision not to allow suit in these contexts further indicated that the Judiciary should not create a cause of action that extended across U. S. borders either. Lastly, the Court explained that Congress should be the governmental branch to create a damages remedy, not the courts, pursuant to the separation of powers doctrine.

Justice Ginsburg dissented, joined by Justices Breyer, Sotomayor, and Kagan. The dissent would have held that the plaintiffs’ complaint crossed the Bivens threshold. Justice Ginsburg noted that at the time of the incident, the officer did not know whether the boy he shot was a U. S. national or a citizen of another country.[9] Justice Ginsburg stated that Abbasi acknowledged the “fixed principle” that plaintiffs may bring Bivens suits against federal law enforcement officers for “seizure[s]” that violate the Fourth Amendment,[10] and that using lethal force against a person who posed no immediate threat to the officer and no threat to others surely qualified as an unreasonable seizure. Tennessee v. Garner, 471 U. S. 1, 11, 105 S. Ct. 1694, 85 L. Ed. 2d 1. Justice Ginsburg noted that according to the complaint, Hernández was unarmed and posed no threat to Mesa or others. Justice Ginsburg noted that Mesa acknowledged at oral argument that Hernández’s parents could have maintained a Bivens action had the bullet hit Hernández while he was running up or down the United States side of the embankment. Justice Ginsburg stated: “The only salient difference here: the fortuity that the bullet happened to strike Hernández on the Mexican side of the embankment. But Hernández’s location at the precise moment the bullet landed should not matter one whit. After all, ‘[t]he purpose of Bivens is to deter the officer.’ Abbasi, 582 U. S., at ___, 137 S. Ct. 1843, 198 L. Ed. 2d 290, at 312 (internal quotation marks omitted).” She added: “It scarcely makes sense for a remedy trained on deterring rogue officer conduct to turn upon a happenstance subsequent to the conduct—a bullet landing in one half of a culvert, not the other.” “Rogue U.S. officer conduct,” she argued, “falls within a familiar, not a ‘new,’ Bivens setting.

Justice Ginsburg explained that even if the setting could be characterized as “new,” the plaintiffs lacked recourse to alternative remedies (which remained a significant consideration under Abbasi’s guidelines), and no “special factors” counsel against a Bivens remedy. Justice Ginsburg found that neither U. S. foreign policy nor national security was in fact endangered by the litigation. The plaintiffs here, the dissent explained, targeted, not policy nor policymakers, but instead targeted the rogue actions of a rank-and-file law enforcement officer acting in violation of rules controlling his office. Moreover, the dissent maintained that concerns attending the application of U.S. law to conduct occurring abroad were not involved, because the plaintiffs sought the application of U. S. law to conduct occurring inside U.S. borders.


The Equal Pay Act’s fourth affirmative defense of “factors other than sex” comprises only job-related factors; prior rate of pay was not a “factor other than sex.”

Rizo v. Yovino, 2020 U.S. App. LEXIS 6345 (9th Cir. Feb. 27, 2020)

Facts: The Fresno County (“County”) Office of Education hired Aileen Rizo as a math consultant in October 2009. The County set its new employees’ salaries according to a pay schedule governed by Standard Operating Procedure 1440 (“SOP 1440”), which started with the employee’s prior wages and increased the wages by 5 percent. Her starting wage at the County was $62,133 for 196 days of work, plus an additional $600 for holding a master’s degree. In 2012, Rizo learned that a newly hired male math consultant’s starting pay was $79,088, significantly more than Rizo was paid after working three years for the County. Rizo realized that she was the only female math consultant at the County, and that all of her male colleagues were paid more than she was, even though she had more education and experience.

Rizo filed a complaint alleging in part that the County violated the Equal Pay Act (“EPA”), 29 U.S.C. section 206(d). In 1963, Congress enacted the EPA to combat pay disparities caused by sex discrimination, but it allowed employers to justify different pay for employees of the opposite sex based on three specifically enumerated affirmative defenses, or “any other factor other than sex.” Id.

The County moved for summary judgment. The County did not contest that Rizo was paid less than her male counterparts or that Rizo established a prima facie EPA violation. Instead, the County argued that Rizo’s pay was the result of SOP 1440, and that this pay policy, which was based solely on its employees’ prior pay, was a “factor other than sex” that defeated Rizo’s EPA claim. The District Court denied the County’s motion, explaining that the County’s “SOP 1440 necessarily and unavoidably conflict[ed] with” the EPA.

A three-judge panel of the Ninth Circuit Court of Appeals reversed, holding that the District Court was bound by Kouba v. Allstate Insurance Co., 691 F.2d 873 (9th Cir. 1982). Kouba held that the EPA “does not impose a strict prohibition against the use of prior salary,” so long as employers consider prior pay “reasonably” to advance “an acceptable business reason.” Id. at 876-77, 878. Subsequently, a majority of the active members of the Ninth Circuit voted to hear the County’s interlocutory appeal en banc. The en banc Court issued an opinion, but the United States Supreme Court vacated the en banc decision on a procedural issue, and remanded.

Held: The Ninth Circuit Court of Appeals took the case en banc to reconsider Kouba’s rule that prior pay could qualify as an affirmative defense to an EPA claim if the employer considered prior pay in combination with other factors and used it reasonably to effectuate a business policy.

The Ninth Circuit explained that “Congress’ purpose in enacting the Equal Pay Act was to remedy what was perceived to be a serious and endemic problem of employment discrimination in private industry.” Corning Glass Works v. Brennan, 417 U.S. 188, 195 (1974). The EPA was described as “a very simple piece of legislation” establishing that “equal work will be rewarded by equal wages.”[11]

The EPA provides: “No employer . . . shall discriminate . . . between employees on the basis of sex by paying wages to employees . . . at a rate less than the rate at which he pays wages to employees of the opposite sex . . . for equal work on jobs the performance of which requires equal skill, effort, and responsibility, and which are performed under similar working conditions . . . .” 29 U.S.C. section 206(d)(1). The statute identifies four exceptions to its equal-pay mandate: “except where such payment is made pursuant to (i) a seniority system; (ii) a merit system; (iii) a system which measures earnings by quantity or quality of production; or (iv) a differential based on any other factor other than sex . . . .” Id. (emphasis added). The Court explained that these four exceptions acted as affirmative defenses to an EPA claim. On appeal, the County contended that its policy of setting employees’ wages based on their prior pay was premised on a factor other than sex. Therefore, the County argued, its use of prior pay was a valid affirmative defense.

Considering the fourth exception, the Ninth Circuit agreed with other circuits that the scope of the “factor other than sex” affirmative defense was limited, and that “the ‘factor other than sex’ defense does not include literally any other factor . . . .” EEOC v. J.C. Penney Co., Inc., 843 F.2d 249, 253 (6th Cir. 1988). The Court explained that because the three enumerated exceptions were all job-related, and the elements of the “equal work” principle were job-related, Congress’ use of the phrase “any other factor other than sex” (emphasis added) supported the statutory interpretation that the fourth exception was also limited to job-related factors. The Court found that other rules of statutory construction, as well as the EPA’s history and purpose supported the view that an affirmative defense based on the fourth exception comprised only job-related factors.

The Ninth Circuit then held that prior pay did not qualify as a job-related factor that could defeat a prima facie Equal Pay Act claim. The Court explained that it did not presume that any particular employee’s prior wages were depressed as a result of sex discrimination. However, the Court stated, “the history of pervasive wage discrimination in the American workforce prevents prior pay from satisfying the employer’s burden to show that sex played no role in wage disparities between employees of the opposite sex. And allowing prior pay to serve as an affirmative defense would frustrate the EPA’s purpose as well as its language and structure by perpetuating sex-based wage disparities.” The Court concluded that setting wages based on prior pay risked perpetuating the history of sex-based wage discrimination that the EPA was designed to prevent. The Court also overruled Kouba.

Here, the Court applied the rule that only job-related factors qualified under the EPA’s fourth affirmative defense and that prior pay was not one of them, and found that Rizo’s prior wages did not qualify as any other factor other than sex.” Accordingly, the Ninth Circuit Court of Appeals affirmed the District Court’s order denying the County’s motion for summary judgment, and remanded for further proceedings.


When a person refuses to identify himself to an officer who is writing a citation to that person for an infraction offense, that refusal can be the basis for a finding that the person resisted, obstructed, or delayed an officer in violation of Penal Code section 148(a)(1).

People v. Knoedler, 44 Cal. App. 5th Supp. 1 (2019)[12]

Facts: On August 19, 2018, defendant Brent Knoedler was approached by Ranger Sarai Jimenez. Knoedler was holding an open can of beer near Beach and Main Streets in the City of Santa Cruz. Ranger Jimenez asked Knoedler for identification in order to issue him a citation for violating a local ordinance making it an infraction to possess open containers of alcoholic beverages in a public place. Knoedler offered to throw his alcoholic beverage away in a nearby garbage can. After repeated requests, Knoedler refused to provide any identification or tell his name to Ranger Jimenez.

Ranger Jimenez called for backup. Officer Denise Cockrum arrived on the scene. Knoedler refused to answer Officer Cockrum’s question as to how many alcoholic beverages he had consumed, and he continued to refuse to identify himself. Officer Cockrum explained that she needed Knoedler to identify himself “[s]o we know who we’re issuing, in this case, a ticket to.” Ranger Jimenez testified that Knoedler was unresponsive and would only state that he had no reason to cooperate because he was not going to drive a vehicle. Intending to arrest Knoedler, Officer Cockrum grabbed Knoedler’s arm. As Officer Cockrum attempted to restrain Knoedler, Knoedler broke free and hit the officer hard enough that the impact caused her body camera to be knocked off her person. A chase and struggle ensued. Knoedler was eventually detained by other responding officers.

A jury found Knoedler guilty of violating Penal Code section 148(a)(1) (resisting, obstructing, or delaying a peace officer). The Santa Cruz County Superior Court placed Knoedler on a 36-month conditional sentence, ordered him to serve 60 days in the county jail, and imposed $573.00 in fines and fees. Knoedler appealed.

Held: On appeal to the Appellate Division of the Santa Cruz County Superior Court, Knoedler claimed the trial court prejudicially erred when it instructed the jury that he could be convicted of a violation of Section 148(a)(1) by failing to identify himself. He contended that the modified version of CALCRIM No. 2656 given to the jury was an incorrect statement of the law, which violated his right to due process and a fair trial under the Sixth and Fourteenth Amendments to the United States Constitution.

The modified version of CALCRIM No. 2656 provided in pertinent part:

“The People allege that the defendant resisted, obstructed or delayed Officer Denise Cockrum by doing the following:

“1. Refusing to provide identification to Officer Cockrum.

“2. Refusing to put his hands behind his back.

“3. Fleeing from Officer Cockrum.

“You may not find the Defendant guilty unless you all agree that the People have proved that the Defendant committed at least one of the alleged acts of resisting, obstructing, or delaying a peace officer who was lawfully performing his or her duties, and you all agree on which act he committed.”

The Appellate Division first determined that the Knoedler was not precluded from raising this issue because his claim of instructional error affected his substantial rights, despite the People’s argument that Knoedler waived his claim of instructional error because of his trial counsel’s failure to object during the discussion regarding jury instructions.

Knoedler relied on People v. Quiroga (1993) 16 Cal.App.4th 961, which held that “a refusal to disclose personal identification following arrest for a misdemeanor or infraction cannot constitute a violation of Penal Code section 148.” (Id. at p. 970, italics added.) However, the Appellate Division noted that in this case the officer was not arresting defendant at the time that Knoedler refused to provide his identification or otherwise identify himself. Instead, the officer was attempting to write Knoedler a citation for a municipal code infraction. In Quiroga, the defendant’s failure to provide identification after his arrest did not delay or obstruct the arresting officer because “[t]he arrest had already been effected,” and the defendant had not yet been brought to the jail for booking. (Quiroga, supra, at p. 966.) The Quiroga court held that it was a violation of Section 148 when the defendant refused to provide identification at booking, due to “the public interest in discovering the identity of a suspect that might reasonably justify criminal sanction.” (Quiroga, supra, at p. 971.)

The Appellate Division explained that the public interest rationale identified in Quiroga applied to the issuance of a citation for an infraction violation. “Without any way to identify the person who is being cited,” the Appellate Division explained, “the police cannot perform their duties.” Quiroga noted that for infractions and misdemeanors, Penal Code section 853.5 governed the situation in which a person fails to provide identification. The Appellate Division explained that under Section 853.5, a person may be arrested—rather than simply cited and released—if “the arrestee refuses to sign a written promise, has no satisfactory identification, or refuses to provide a thumbprint or fingerprint.” (Section 853.5(a).) The Appellate Division observed that the fact that a person could be subject to a custodial arrest for failure to provide identification regarding a citation did not mean that such failure to provide identification would not delay or obstruct an officer in the performance of his or her duties. Quiroga did not apply here to support Knoedler’s argument because Quiroga considered only whether “refusal to disclose personal identification following arrest for a misdemeanor or infraction” could constitute a violation of Section 148. (Quiroga, supra, 16 Cal.App.4th at p. 970, italics added.)

The Appellate Division consequently held that when a person refuses to identify himself to an officer who is writing a citation to that person for an infraction offense, that refusal can be the basis for a finding that the person resisted, obstructed, or delayed an officer in violation of Penal Code section 148(a)(1). The Appellate Division found that the trial court did not err by instructing the jury that Knoedler’s refusal to identify himself could be found to constitute a violation of Section 148(a), and accordingly affirmed.

[1] See 34 U.S.C. sections 30301-30309 (2017); 28 C.F.R. sections 115.11-115.16.

[2] See Sepulveda v. Ramirez, 967 F.2d 1413, 1415-16 (9th Cir. 1992) (citing York v. Story, 324 F.2d 450 (9th Cir. 1963)). In York, the Ninth Circuit had relied upon the Fourteenth Amendment in reasoning that “the security of one’s privacy against arbitrary intrusion by the police is basic to a free society and therefore ‘implicit in the concept of ordered liberty’ under the due process clause.” Grummett v. Rushen, 779 F.2d 491, 494 (9th Cir. 1985) (quoting York, 234 F.2d at 455). The Ninth Circuit in York held that the plaintiff had stated a privacy claim under the Fourteenth Amendment because the Court “could not conceive of a more basic subject of privacy than the naked body.” Id. (citation omitted). The Court noted that “[t]he desire to shield one’s unclothed figure from [the] view of strangers, and particularly strangers of the opposite sex, is impelled by elementary self-respect and personal dignity.” Id. (internal quotation marks and citation omitted).

[3] Scott v. Harris, 550 U.S. 372, 378 (2007).

[4] People v. Tate, 49 Cal.4th 635, 683 (2010).

[5] 17 Cal.4th 229 (1998).

[6] See Davis v. Passman, 442 U. S. 228 (1979); Carlson v. Green, 446 U. S. 14 (1980).

[7] See, e.g., Jesner v. Arab Bank, PLC, 584 U. S. ___, ___, 138 S. Ct. 1386, 200 L. Ed. 2d 612 (2018).

[8] Correctional Services Corp. v. Malesko, 534 U. S. 61, 68 (2001).

[9] See Hernández v. Mesa, 582 U. S. ___, ___-___, 137 S. Ct. 2003, 198 L. Ed. 2d 625, 632 (2017) (per curiam).

[10] 582 U. S., at ___, 137 S. Ct. 1843, 198 L. Ed. 2d 290, at 308.

[11] S. Rep. No. 88-176, at 1 (1963); Equal Pay Act of 1963, S. Comm. on Labor, 88th Cong. 12 (1963) (statement of Sen. Clifford P. Case).

[12] Appellate Division, Superior Court of California, Santa Cruz County, No. 19AP00003.