CPOA Case Summaries – January 2017

By: Jim Touchstone and Brittany Roberto of Jones & Mayer


Statute prohibiting grand jury from inquiring into officer’s use of lethal force is unconstitutional because it impairs criminal grand jury’s constitutional authority to indict the accused.

People ex rel. Pierson v. Superior Court, 7 Cal. App. 5th 402 (3d Dist. 2017)

FactsIn June 2015, South Lake Tahoe Police Department officers responded to reports of suspected domestic violence at a motel. While one officer knocked on the front door, the other went around back. The officer observed a man climbing out of the bathroom window, and shot the man in the chest, killing him. The man was in fact unarmed.

The officer later made a statement that he had recognized the man as a gang member the officer recently arrested for a controlled substances transaction. Another person involved in the transaction had been armed with a loaded firearm. The officer believed that the decedent looked at him menacingly and ordered the man to show his hands. When the man brought his right hand in view, the officer thought he saw a firearm, so he fired his gun once. It is unclear whether the officer had verbally warned the man before firing his weapon.

As of December 2015, the El Dorado County District Attorney (“DA”) had not filed any charges. He indicated to counsel for South Lake Tahoe Police Officers’ Association and Police Supervisors’ Association that he intended to wait until after the effective date of the amended Penal Code section 917 (“section 917”) to convene a criminal grand jury and subpoena the officer and other witnesses to the shooting to test the constitutionality of the statute.

In January 2016, pursuant to the DA’s request, the superior court convened a criminal grand jury and issued subpoenas in February to the officers involved in the shooting, South Lake Tahoe Chief of Police Brian Uhler, and others for grand jury sessions set to begin March 1, 2016. The South Lake Tahoe Police Officers’ Association and Police Supervisors’ Association filed motions to quash the subpoenas and dismiss the grand jury. The superior court granted the motions in light of section 917, declining to find section 917 unconstitutional. The DA sought relief in the appellate court to overturn the superior court’s orders.

Held:  After discussing the history of grand juries and grand jury procedures, the Third District concluded the Legislature does not have the power to enact a statute that limits the constitutional power of a criminal grand jury to indict any adult accused of a criminal offense, and therefore found the amendments to Section 917 unconstitutional. The Court noted that allowing the Legislature to restrict the grand jury’s constitutional role in part would be to concede its power to restrict the role in its entirety, a position that has never been endorsed by any precedent and which was specifically withheld from the Legislature when the Constitution was enacted in 1879. The Court of Appeal ordered the lower court to vacate its orders to quash the subpoenas and dismiss the grand jury, and to instead deny the motions of the police associations.

For a more detailed discussion of this case, please see Client Alert Vol. 32, No. 2 authored by James R. Touchstone and Melissa M. Ballard and available at www.jones-mayer.com.



  1. Qualified immunity attaches to late-arriving officer’s failure to identify himself prior to shooting because his conduct does not violate clearly established law.

White v. Pauly, 137 S. Ct. 548 (U.S. 2017)

FactsOne evening in October 2011, on a highway near Santa Fe, New Mexico, two women called 911 to report Daniel Pauly as a drunk driver who was swerving ahead of them on the highway. After the women followed closely behind him with their bright lights on, Pauly pulled over to confront them. After a brief, nonviolent confrontation, Daniel drove a short distance to his home. Around 9 p.m., after Pauly had already left the scene, Officer Kevin Truesdale responded to the 911 call and interviewed the women at the off-ramp. The women provided Pauly’s license plate information, which dispatch identified as being registered at Pauly’s and his brother’s address.

After the women left, Truesdale was joined at the scene by officers Michael Mariscal and Ray White. The officers agreed that there was insufficient probable cause to arrest Pauly, but decided to speak with him to get his side of the story and determine whether he was intoxicated. Truesdale and Mariscal drove separately to Pauly’s address, which was less than half a mile away, while White stayed behind in case Pauly returned.

Truesdale and Mariscal found two houses at the address provided by dispatch. The first had no lights on inside. The second, located on a hill behind the first house, had lights on. The officers parked near the first house. They did not see Pauly’s truck by the first house. Truesdale and Mariscal approached the second house in a covert manner for officer safety, using their flashlights intermittently. As they reached the second house, the officers saw Pauly’s vehicle at and two men moving around inside. The officers radioed White to join them.

Around 11 p.m., the two men inside, Pauly and his brother, Samuel Pauly, became aware of the officers’ presence outside and yelled out asking who was out there and for what purpose. The officers responded that they had the brothers surrounded, and directed them to come out. Truesdale said once “state police” and the officers repeatedly said they were coming in. The Pauly brothers later indicated they did not hear the police identify themselves, but did hear the people outside yelling they were coming in. The Paulys armed themselves, and yelled that they had guns, just as Officer White arrived on foot at the second house. When White heard the statement that they had guns, he drew his weapon and took cover behind a stone wall in front of the house. Mariscal took cover behind a truck.

Seconds later, Pauly stepped out of the back door and fired his shotgun twice while screaming loudly. A few seconds after Pauly’s shots, Samuel Pauly pointed a handgun out the front window in White’s direction. Mariscal fired at Samuel but missed. White shot Samuel a few seconds later, killing him. White did not offer any warning or identify himself or as police prior to shooting.

Samuel Pauly’s estate and Daniel Pauly filed suit against the officers, with one claim that the officers were liable under 42 U.S.C. § 1983 for use of excessive force against Samuel in violation of the Fourth Amendment. The officers moved for summary judgment on the grounds of qualified immunity. White argued the Pauly brothers could not show his use of force violated the Fourth Amendment and that Samuel’s right to be free from deadly force under the circumstances would was not clearly established. The district court denied qualified immunity, and the Tenth Circuit Court of Appeals affirmed. Officer White, along with the other officers, petitioned the Supreme Court for review.

Held:  Based on the record described by the Court of Appeals Officer White did not violate clearly established law. The Supreme Court explained that 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. A right is clearly established when existing precedent has placed the statutory or constitutional question beyond debate.

The Court reiterated the longstanding principle that clearly established law should not be defined at a high level of generality—it must be particularized to the facts of case. The Court found that the Court of Appeals misunderstood the clearly established analysis by focusing on cases that lay out excessive force principles at only a general level. The Court found that this case is not one where it is obvious that there was a violation of clearly established law. It noted that the Court of Appeals did not conclude that White’s conduct, such as his failure to warn, was a typical Fourth Amendment violation and that it had noted that the case presented a unique set of facts and circumstances given that White arrived late to the scene. The Court noted that this fact should have indicated to the Court of Appeals that White’s conduct did not violate a clearly established law. The Court explained that clearly established federal law does not prohibit an officer that arrives late to an ongoing police situation from assuming that proper police procedures, such as officer identification, had already been followed. No settled Fourth Amendment principle requires such officer to “second-guess” the earlier actions of his fellow officers in the circumstances White faced after arriving.

Thus, because the Court found that White had not violated a clearly established right, it vacated the judgment of the Tenth Circuit and ordered the case remanded for further proceedings consistent with its opinion. The Court expressly offered no opinion on whether Truesdale or Mariscal were entitled to qualified immunity.

  1. Officer entitled to qualified immunity on excessive force claim where officer was acting in her community caretaking capacity and suspect was interfering with emergency medical treatment.

Ames v. King County, 846 F.3d 340 (9th Cir. 2017)

Facts:  In February 2013, Tonja Ames called 911 to summon an ambulance for her 22-year-old son, Colin Briganti, who lived in a garage apartment attached to her home. Briganti had heart and lung problems as a result of prior drug abuse. Ames had come home from work to find Briganti slumped and incoherent, along with a suicide note, and feared Briganti might have overdosed on his medications. The dispatcher classified the call as a Priority 1 suicide attempt and dispatched a firefighter/EMT aid crew and a police officer to Ames’s residence. According to King County, it is common practice for police to also respond to attempted suicide calls to secure the scene and ensure the safety of the aid crew. Sheriff’s Deputy Heather Volpe, an expert instructor in drug recognition, arrived four minutes after the 911 call. Ames met her and the aid crew in the driveway and told them about her son’s medical history, current condition and the suicide note. However, she refused entry to Volpe, saying only the aid crew could enter the apartment. Volpe told Ames if she could not enter, Ames would get no service, and then directed the aid crew to exit the residence. The aid crew could see Briganti and that he appeared semi-conscious and lethargic.

Volpe and the crew had never encountered a 911 call where the caller would not allow police inside with the medical personnel. Volpe was concerned for the safety of the aid crew and what might have happened inside Briganti’s residence. Based on her specialized training and knowledge of various medications and their effects, Volpe recognized Briganti’s medications as depressants and was concerned that Briganti would die.

Ames panicked that Briganti would receive no care, so she had her neighbors help her carry Briganti outside into her pickup truck to take him to the hospital. Volpe thought Ames was going to let the crew work on Briganti, but, after observing Briganti, who appeared unconscious, being placed in the truck, Volpe radioed her patrol supervisor. The supervisor indicated she should stop them from leaving if the crew needed to work on him. Volpe used her patrol car to block Ames from leaving and told Ames she needed to let the EMT crew could work on Briganti and that it was unlawful to leave with him.

Ames refused and entered her truck to leave. As Ames tried to close her door, Volpe used her body to block Ames from closing the driver’s side door and attempted to pull Ames from the truck, using a hair hold method. Volpe took Ames to the ground into a prone handcuffing position. Volpe held onto Ames’s hair while she handcuffed her, left arm first, with her knee pressed into Ames’s back, and then right. Ames alleged that Volpe slammed her head into the ground three times as she tried to tell Volpe that her right arm was pinned and she had a back injury. Approximately one minute and thirty seconds elapsed from the supervisor’s instruction to Volpe to keep Ames from leaving the scene and Volpe subduing Ames on the ground. After Briganti was treated at the scene and then transported to the emergency room of a local hospital, Ames was released from her handcuffs. Ames gave a statement to Volpe’s supervisor, complaining of pain in her right palm, her wrist, her right knee, and her rib cage.

Ames filed several claims under 42 U.S.C. § 1983 against Volpe, King County, and the other officers that responded to the scene. On summary judgment, the district court granted qualified immunity to Volpe on all but the excessive force claim. Volpe appealed.


Held:  Volpe was entitled to qualified immunity on Ames’s excessive force claim because her use of force was objectively reasonable under the Fourth Amendment. The Court reached its decision by assessing whether, in light of the facts and circumstances Volpe faced at the scene, the actions she took in subduing Ames were objectively reasonable. Citing Graham v. Connor, the Court explained that to determine whether the use of force was objectively reasonable, courts balance the nature and quality of the intrusion on the individual’s Fourth Amendment interests against the countervailing governmental interests at stake.

The Court found the governmental interest in subduing Ames was substantial. Under the first Graham factor, severity of the crime at issue, the Court noted Volpe was acting in her community caretaking capacity and that the focus of the inquiry should be on the serious, life-threatening situation that was unfolding at the time. By disregarding Volpe’s demands, Ames was prolonging a medical emergency. Due to the gravity of Volpe’s community caretaking responsibilities in the circumstances she faced, the Court found the first Graham factor weighed in Volpe’s favor.

Under the second Graham factor, whether the suspect poses an immediate threat to the safety of the officers or others, the Court concluded that Ames did present an immediate danger. Volpe observed Ames loading an apparently unconscious Briganti into her truck and faced a rapidly escalating situation with Ames. Volpe was concerned Ames would delay Briganti’s access to needed medical care. Therefore, in light of the circumstances, the Court found a reasonable officer could conclude, as Volpe did, that Ames presented an immediate danger. Thus, the Court found the second factor weight in Volpe’s favor.

The Court also found that the third Graham factor, whether the suspect is actively resisting arrest of attempting to evade arrest by flight, also weighed in Volpe’s favor. It noted that the record demonstrated Ames was actively resisting Briganti’s medical treatment, she physically resisted arrest, and she attempted to evade Volpe by flight. Although Ames testified she was unable to give Volpe her right arm to be cuffed because it was pinned beneath her body despite Volpe’s repeated requests, it reasonably appeared from Volpe’s perspective that Ames was refusing to comply. The Court noted that the use of force may have been mistaken, but it was not unreasonable.

On balance, the Court concluded the government’s interests of Briganti’s need for urgent medical attention and the need to protect the safety of the first responders outweighed Ames’s Fourth Amendment rights. The Court found that Volpe’s use of force was reasonable in light of the totality of the circumstances. Therefore, the Court found Volpe was entitled to qualified immunity on Ames’s excessive force claim.



Public employees do not have vested right to purchase airtime credit under a statute that was subsequently eliminated by the Public Employees’ Pension Reform Act of 2013.

Cal Fire Local 2881 v. California Public Employees’ Retirement System, 7 Cal. App. 5th 115 (1st Dist. 2016)

Facts:  From January 2003 to December 2012, Section 20909 of the California Government Code (“Section 20909”) provided active California Public Employees’ Retirement System (“CalPERS”) members the option to buy up to five years of airtime service credit. To qualify for the option, the employee was required to have at least five years of state service, to be presently employed by the state, and to contribute an amount equal to the increase in employer liability.  The airtime service credit did not reflect the member’s actual service in qualifying employment, but instead could be added to the member’s total amount of service credit when calculating the member’s retirement allowance. The cost of the airtime was borne entirely by the purchasing member and was calculated as a present value of the projected increase in liability to the CalPERS system.

When the Legislature enacted the California Public Employees’ Pension Reform Act (PEPRA) in 2012, which went into effect in 2013, it eliminated the airtime service credit option. Plaintiffs, professional firefighters employed by the State of California who were eligible to, but did not, purchase the airtime service credit and the union representing them, filed a petition for writ of mandate and injunctive relief. Plaintiffs sought to compel CalPERS to enforce Section 20909. Plaintiffs argued the option to purchase airtime service credit was a vested contractual right and therefore the Legislature violated the contracts clause of the California Constitution when it withdrew this right when it enacted PEPRA.  Following a writ hearing, the trial court concluded that the elimination of the airtime service option did not impact or violate any pension right of the Plaintiffs because the Legislature lawfully eliminated that benefit. The trial court denied Plaintiffs’ petition for writ of mandate against CalPERS and injunctive relief, and Plaintiffs appealed.

Held:  Noting there was nothing in the text of Section 20909 or its legislative history that unambiguously expresses a legislative intent to create a vested pension benefit, the First District concluded there was no express vested right to purchase airtime service credit. The Court further rejected Plaintiff’s contracts clause argument, noting that the Legislature had provided a several-month window in which CalPERS members could purchase the airtime service credit before the option terminated. It also noted the fact that, while the airtime service credit provided something valuable to employees who elected to purchase it, the employees, not the state, paid for that benefit.

Thus, the Court found that the Plaintiff’s constitutional challenge failed. Instead, the Court found the record supported the trial court’s determination that the Legislature’s amendments to the law governing airtime service credit were wholly reasonable and carried a material relation to the theory of a pension system and its successful operation. The Court noted that Plaintiffs may have believed they were disadvantaged by the amendments, but the law was clear that they were entitled only to a “reasonable” pension, not one that provided benefits that were immune from changes or elimination by the governing body. Based on its findings, the Court upheld the trial court’s denial of Plaintiffs’ petition for writ of mandate and injunctive relief.