Provided by CPOA Legal Counsel, James R. Touchstone, Jones & Mayer
A. California charter cities are not exempt from compliance with Government Code section 7284.6, which prohibits state and local law enforcement from engaging in certain specifically identified acts related to immigration enforcement, because the section is constitutional as applied to charter cities.
City of Huntington Beach v. Becerra, 2020 Cal. App. LEXIS 23 (4th Dist. Jan. 10, 2020)
Facts: Under California law, cities are classified as either general law cities, which are organized under the general law of the State of California (Government Code section 34102) or charter cities, which are organized under a charter (Government Code section 34101). The City of Huntington Beach (the “City”) is a charter city.
Section 103 of the Huntington Beach Charter (the “Charter”) states: “The City shall have the power to make and enforce all laws and regulations in respect to municipal affairs, subject only to such restrictions and limitations as may be provided in this Charter or in the Constitution of the State of California.” Section 2.52.030 of the Huntington Beach Municipal Code states: “It shall be the duty of each and every member of the Police Department to enforce impartially all the laws and statutes of the United States and of the State of California and all of the ordinances of the City, within the limits of this City, and to perform such other and further duties as by statute and ordinance now existing or hereafter enacted, may be imposed upon them in their capacity as peace officers.” Section 2.24.050 of the Huntington Beach Municipal Code states: “The Police Chief shall perform such other acts as the laws of the state and ordinances of the Council may require.”
California Constitution, article XI, Section5
Under the home rule doctrine, “[c]harter cities are specifically authorized by our state Constitution to govern themselves, free of state legislative intrusion, as to the matters deemed municipal affairs.” (City of Vista, supra, 54 Cal.4th at p. 555.)
Article XI, section 5 of the California Constitution defines the scope of home rule powers of a charter city. Section 5(a)) sets out the general rule of municipal self-governance and provides: “It shall be competent in any city charter to provide that the city governed thereunder may make and enforce all ordinances and regulations in respect to municipal affairs, subject only to the restrictions and limitations provided in their several charters and in respect to other matters they shall be subject to general laws. City charters adopted pursuant to this Constitution…with respect to municipal affairs shall supersede all laws inconsistent therewith.”
“Whereas subdivision (a) of article XI, section 5 articulates the general principle of self-governance, subdivision (b) sets out a nonexclusive list of four ‘core’ categories that are, by definition, ‘municipal affairs.’” (Johnson v. Bradley (1992) 4 Cal.4th 389, 398, fn. omitted.) Section 5(b) provides in part: “It shall be competent in all city charters to provide, in addition to those provisions allowable by this Constitution, and by the laws of the State for: (1) the constitution, regulation, and government of the city police force […].”
The California Values Act
When enacting the CVA, the Legislature found “[i]mmigrants are valuable and essential members of the California community,” “[a] relationship of trust between California’s immigrant community and state and local agencies is central to the public safety of the people of California,” and “[t]his trust is threatened when state and local agencies are entangled with federal immigration enforcement.” (Government Code section 7284.2(a), (b) & (c).) As a result, the Legislature found, “immigrant community members fear approaching police when they are victims of, and witnesses to, crimes, seeking basic health services, or attending school, to the detriment of public safety and the well-being of all Californians.” (Section 7284.2(c).)
The Legislature further found that “[e]ntangling state and local agencies with federal immigration enforcement programs diverts already limited resources and blurs the lines of accountability between local, state, and federal governments.” (Section 7284.2(d).) The Legislature expressed concern that state and local participation in federal immigration enforcement could lead to the unconstitutional detention of California residents who were targeted based on race or ethnicity in violation of the Fourth Amendment to the United States Constitution and the Equal Protection Clause. (Section 7284.2(e).) The goal of the CVA, the Legislature declared, is “to ensure effective policing, to protect the safety, well-being, and constitutional rights of the people of California, and to direct the state’s limited resources to matters of greatest concern to state and local governments.” (Section 7284.2(f).)
The CVA implements its purposes by prohibiting state and local law enforcement from engaging in certain specifically identified acts related to immigration enforcement. Section 7284.6, at issue here, restricts the ability of local law enforcement agencies to inquire into immigration status, place individuals on an immigration hold, and use personnel or resources to participate in certain immigration enforcement activities.
However, the CVA makes clear that California law enforcement agencies are not prohibited from engaging in certain activities with federal authorities. California law enforcement agencies are not prohibited from investigating, enforcing, detaining upon reasonable suspicion of, or arresting a person for a violation of section 1326(a) of title 8 of the United States Code (reentry of removed aliens). (Section 7284.6(b)(1).) California law enforcement agencies are not prohibited from responding to a request from immigration authorities for information about a specific person’s criminal history if otherwise permitted by state law. (Section 7284.6(b)(2).) California law enforcement agencies may conduct enforcement or investigative duties associated with a joint law enforcement task force so long as the primary purpose of the task force is not immigration enforcement and the enforcement or investigative duties are primarily related to a violation of law unrelated to immigration enforcement. (Section 7284.6(b)(3).)
The CVA states that it “does not prohibit or restrict any government entity or official from sending to, or receiving from, federal immigration authorities, information regarding the citizenship or immigration status, lawful or unlawful, of [any] individual, or from requesting from federal immigration authorities immigration status information, lawful or unlawful, of any individual, or maintaining or exchanging that information with any other federal, state, or local government entity, pursuant to [federal immigration laws].” (Section 7284.6(e).)
The CVA imposes on the California Attorney General the task of preparing and publishing “model policies limiting assistance with immigration enforcement to the fullest extent possible consistent with federal and state law” at public schools, public libraries, public health facilities, shelters, and other facilities, “and ensuring that they remain safe and accessible to all California residents, regardless of immigration status.” The CVA also imposes restrictions on the Department of Corrections and Rehabilitation.
The City filed a petition for writ of mandamus and a complaint for declaratory relief to “invalidate the unconstitutional mandates of the [CVA] that impermissibly strip the City’s constitutionally protected Charter authority with respect to local ‘municipal affairs.’” The City alleged the CVA unconstitutionally violated the City’s authority to conduct municipal affairs constitutionally guaranteed under Section 5 by mandating how the City operates its police force. The City sought a mandate to command “that [the Attorney General] not enforce the [CVA] against the City and comply with Article XI, § 5 of the California Constitution.” The City also prayed for a declaration that the CVA was unconstitutional and preempted by article XI, section 5 of the California Constitution. The City argued Section 5 granted charter cities “supreme authority” over municipal affairs, which include operation of the City’s police force. The City argued the CVA is “an impermissible, un-Constitutional overreach, is void, and should be invalidated” because it intruded upon the City’s control of its police force. The Attorney General filed opposition, which included the CVA’s legislative history, declarations from law enforcement officials, and a declaration from a professor who had conducted studies pertinent to these issues.
A hearing was conducted on the City’s petition for writ of mandamus and complaint. The City narrowed the scope of relief sought by identifying Section 7284.6 as the “operative portion” of the CVA that the City sought to have invalidated.
The trial court granted the City’s petition and a peremptory writ of mandate was issued ordering the Attorney General to refrain from enforcing Section 7284.6 against the City. The court found: (1) the “constitution, regulation and government” of a police force is a “quintessential municipal affair under [Section] 5(a)”; (2) the “constitution, regulation and government” of a police force is “a municipal prerogative” protected by Section 5(b); and (3) “there is no ‘statewide concern’ justifying the state[‘]s regulation of a Charter City’s police force.” The Attorney General appealed.
Held: The California Fourth District Court of Appeal noted that home rule authority under Section 5 does not mean charter cities can never be subject to state laws that concern or regulate municipal affairs. “[A] charter city’s authority to enact legislation is not unlimited.” (Jauregui v. City of Palmdale (2014) 226 Cal.App.4th 781, 795.) The Court explained that the Legislature may legislate as to matters of statewide concern and, if the statute is not overbroad, then the conflicting charter city law “ceases to be a ‘municipal affair’ pro tanto and the Legislature is not prohibited by article XI, section 5(a), from addressing the statewide dimension by its own tailored enactments.” (California Fed. Savings, supra, 54 Cal.3d at p. 17.) “[G]eneral law prevails over local enactments of a chartered city, even in regard to matters which would otherwise be deemed to be strictly municipal affairs, where the subject matter of the general law is of statewide concern.” (People ex rel. Seal Beach Police Officers Assn. v. City of Seal Beach (1984) 36 Cal.3d 591, 600 (“Seal Beach”), quoting Professional Fire Fighters, Inc. v. City of Los Angeles (1963) 60 Cal.2d 276, 292; see Baggett v. Gates (1982) 32 Cal.3d 128, 136 [“‘As to matters which are of statewide concern, however, home rule charter cities remain subject to and controlled by applicable general state laws regardless of the provisions of their charters’”].)
The Fourth District explained that the California Supreme Court developed a four-part “analytical framework” to determine whether a state law unconstitutionally infringes the home rule authority of charter cities granted by article XI, section 5 of the California Constitution. (City of Vista, supra, 54 Cal.4th at p. 556; California Fed. Savings, supra, 54 Cal.3d at pp. 16–17.) First, the court determines whether the local law at issue regulates an activity that can be characterized as a municipal affair. (City of Vista, supra, at p. 556; California Fed. Savings, supra, at p. 16.) Second, the court determines whether there is an actual conflict between state law and the local law. (City of Vista, supra, at p. 556; California Fed. Savings, supra, at pp. 16–17.) If no conflict exists, the analysis is complete and there is no need to go to the next step. (California Fed. Savings, supra, at p. 16.) Third, the court decides whether the state law addresses a matter of “‘statewide concern.’” (City of Vista, supra, at p. 556; California Fed. Savings, supra, at p. 17.) Fourth, and finally, the court determines whether the state law is “‘reasonably related to … resolution’” of the identified statewide concern and is “‘narrowly tailored’ to avoid unnecessary interference in local governance.” (City of Vista, supra, at p. 556; California Fed. Savings, supra, at p. 17; see Marquez v. City of Long Beach (2019) 32 Cal.App.5th 552, 562–563; Jauregui, supra, 226 Cal.App.4th at pp. 795–796.)
Citing Baggett and other cases, the Supreme Court in People ex rel. Seal Beach Police Officers Assn. v. City of Seal Beach (1984) 36 Cal.3d 591, 600 (“Seal Beach”) expressly rejected the notion that municipal affairs identified in Section 5(b) can never be subject to state regulation.
The Fourth District explained that in Jauregui v. City of Palmdale (2014) 226 Cal.App.4th 781, the Second District Court of Appeal followed the reasoning of Seal Beach to conclude that provisions of the California Voting Rights Act of 2001 (Elec. Code, §§ 14025–14032) applied to the defendant charter city. And in Marquez v. City of Long Beach (2019) 32 Cal.App.5th 552, the Second District, after reviewing the relevant case law, held that “the Legislature may enact laws of broad general application that impact charter city compensation where the state law’s infringement on local authority is reasonably related to an important statewide concern.” (Id. at p. 567.)
The Fourth District here found that these four decisions—Baggett, Seal Beach, Jauregui, and Marquez—demonstrated that the four-part analytical framework of City of Vista and California Fed. Savings applied when a state law was challenged as infringing a municipal affair identified in Section 5(b). The Court concluded that “Section 5(b) does not create a special class of municipal affairs but identifies certain activities at least presumptively deemed to be municipal affairs under Section 5(a). A municipal affair identified in Section 5(b) is not immune from any and all state laws; rather, a city ordinance regulating an activity identified in Section 5(b) would by definition and without more be a municipal affair under the first part of the four-part analytical framework of City of Vista and California Fed. Savings.”
Part One: The Huntington Beach Charter and Municipal Code Provisions Regulate Municipal Affairs.
The Fourth District proceeded to apply the four-part analytical framework of City of Vista and California Fed. Savings to Section 7284.6. The first part determined whether the city ordinance at issue regulated an activity that can be characterized as a municipal affair. (City of Vista, supra, 54 Cal.4th at p. 556.) Section 103 of the Huntington Beach Charter provided the City the power to make and enforce all laws and regulations in respect to municipal affairs. Huntington Beach Municipal Code section 2.52.030, makes it “the duty of each and every member of the Police Department to enforce impartially all the laws and statutes of the United States and of the State of California and all of the ordinances of the City.” The City contended that both sections were unconstitutionally infringed by Section 7284.6 of the CVA.
The Court determined, based on its prior analysis of Section 5, that there was no doubt Huntington Beach Charter section 103 and Huntington Beach Municipal Code section 2.52.030 regulated activity that could be characterized as a municipal affair—the constitution, regulation, and government of the City police force. (See Section 5(b)(1).) The Court explained that Section 103 of the charter was broadly drafted to include all city functions, including operation of the police force. However, the Court denied the City’s contention that the CVA unconstitutionally infringed its right to compensate employees because the City never explained how the CVA affects employee compensation and never identified a charter provision or municipal code section at odds with the CVA on that matter.
Part Two: There Is an Actual Conflict Between Section 7284.6 and Huntington Beach Charter Section 103.
The second part of the analytical framework determined whether there was an actual conflict between Section 7284.6 and the invoked charter and municipal code provisions. (City of Vista, supra, 54 Cal.4th at p. 556.) The Court explained: “[A] court asked to resolve a putative conflict between a state statute and a charter city measure initially must satisfy itself that the case presents an actual conflict between the two.” (California Fed. Savings, supra, 54 Cal.3d at p. 16.)
The Court found a conflict between Section 7284.6 and the City charter’s section 103 because the Court determined that Section 103 conferred on the City a broad grant of authority over any and all legally cognizable municipal affairs, including authority over “the constitution, regulation, and government of the police force.” (Section 5(b)(1).) By prohibiting state and local law enforcement from engaging in certain activities related to immigration enforcement, Section 7284.6 directly restricted the regulation of the City police force. The Court stated that Section 103 would grant the City authority, for example, to regulate its police force by having its officers inquire into an arrestee’s immigration status or participate in arrests based on civil immigration warrants. Subdivisions (a)(1)(A) and (a)(1)(E) of section 7284.6 prohibit such activity.
Part Three: The CVA Addresses a Matter of Statewide Concern.
Because the Court found an actual conflict between Section 7284.6 and Section 103, the Court turned to the third part of the analytical framework, whether the CVA, and Section 7284.6 in particular, addressed a matter of statewide concern. (City of Vista, supra, 54 Cal.4th at p. 556.) The Court noted that any doubt as to whether a matter was of statewide or strictly local concern must be resolved in favor of “‘the legislative authority of the state.’” (California Fed. Savings, supra, 54 Cal.3d at p. 24.)
The Court observed that the Legislature made substantial and detailed findings to support its enactment of the CVA, as noted above. According great weight to these legislative findings, the Fourth District concluded as a matter of law that the findings identified statewide concerns that justified binding charter cities to the dictates of Section 7284.6. The Court stated that it was “virtually self-evident that public safety is a matter of statewide concern, explaining that the State’s historic police powers provided “the authority to structure and influence the relationship between state law enforcement and the community it serves” (United States v. California (E.D. Cal. 2018) 314 F.Supp.3d 1077, 1108, affd. in part & revd. in part United States v. California, supra, 921 F.3d 865), and pointing to California’s lengthy Penal Code and what the Court described as a “vast” state prison system.
The Court also determined that uniform application of the CVA throughout the highly urbanized and integrated state was necessary to ensure it adequately addresses these statewide concerns. The Court explained that “[i]f every city and county were able to opt out of the statutory regime simply by passing a local ordinance, the statewide goal[s] of [public safety, better law enforcement, and protection of constitutional rights] would surely be frustrated.” (Fiscal v. City and County of San Francisco (2008) 158 Cal.App.4th 895, 919.)
Although the City submitted a declaration from its highly experienced Chief of Police, Robert Handy, who severely criticized the CVA, the Court explained that this evidence was outweighed by the Legislature’s thorough and detailed findings, the evidence cited in the legislative history of the CVA and other evidence submitted by the Attorney General.
Part Four: The CVA Is Reasonably Related to the Statewide Concerns.
The Fourth District arrived at the fourth part of the analytical framework to determine “whether the law is ‘reasonably related to … resolution’ of [the statewide] concern [citation] and ‘narrowly tailored’ to avoid unnecessary interference in local governance.” (City of Vista, supra, 54 Cal.4th at p. 556.) The Court found that the CVA, in particular Section 7284.6, was reasonably related to the statewide concerns of effective policing, public health and safety, prudent use of public resources, and protection of constitutional rights. The Court explained that by limiting or prohibiting certain law enforcement activities, such as inquiring into immigration status and placing a person on an immigration hold, that eroded trust between immigrants and the police, Section 7284.6 thereby encouraged both immigrants and nonimmigrants to report crimes, work with law enforcement, and serve as witnesses. The Court found that these restrictions helped ensure that public law enforcement resources were directed at fighting state-law crimes, which the Court deemed to present a greater threat to public safety in the state.
The Fourth District found that the CVA was narrowly tailored and did not intrude unnecessarily upon municipal interests. The Court also determined that other CVA restrictions on local law enforcement activity pertaining to immigration enforcement were themselves limited by Government Code section 7282.5.
Based on its application of the four-part analytical framework set forth in City of Vista and California Fed. Savings, the Fourth District Court of Appeal concluded that Section 7284.6 did not unconstitutionally infringe a charter city’s rights under Section 5(b) to constitute, regulate, and govern a city police force or to compensate city employees. Accordingly, the Court reversed and remanded with directions to deny the petition for writ of mandamus and enter judgment in favor of the Attorney General. Accordingly, the Court reversed and remanded with directions to deny the City’s petition.
B. All of the elements of a Section 1983 sexual assault claim are established if a prisoner proved that a sexual assault occurred; inmates subjected to sexual assault during search alone violates Eighth Amendment, regardless of prison guards “need to use force” during patdown searches.
Bearchild v. Cobban, 2020 U.S. App. LEXIS 1521 (9th Cir. Jan. 16, 2020)
Facts: In November 2013, Dewayne Bearchild, an inmate at the Montana State Prison (“MSP”), was walking with other inmates from their housing unit to another part of the prison when guards stopped him and another inmate to conduct pat-down searches of both men. Bearchild alleged Sergeant Larry Pasha’s converted the five minute pat-down into a sexual assault, and that other guards who observed the search laughed.
Bearchild sued several prison staff members pursuant to 42 U.S.C. section 1983, alleging that his Eighth Amendment rights were violated when he was sexually assaulted during the course of a pat-down search. At trial, Pasha vigorously disputed Bearchild’s characterization of the search and denied that it lasted five minutes and that it transgressed the boundaries of a permissible pat-down. The trial lasted two days during which the District Court held a conference to discuss proposed jury instructions.
Instruction No. 12 was a detailed statement of the substantive law pertaining to an Eighth Amendment excessive force claim, relying almost verbatim on Ninth Circuit Model Civil Jury Instruction 9.26. It provided, in relevant part:
Under the Eighth Amendment, a convicted prisoner has the right to be free from “cruel and unusual punishments.” In order to prove the defendant deprived the plaintiff of this Eighth Amendment right, the plaintiff must prove the following elements by a preponderance of the evidence:
- the defendant used excessive and unnecessary force under all of the circumstances;
- the defendant acted maliciously and sadistically for the purpose of causing harm, and not in a good faith effort to maintain or restore discipline; and
- the act of the defendant caused harm to the plaintiff.
Instruction No. 12 went on:
In determining whether these three elements have been met in this case, consider the following factors:
1) the extent of the injury suffered;
2) the need to use force;
3) the relationship between the need to use force and the amount of force used;
4) any threat reasonably perceived by the defendant; and
5) any efforts made to temper the severity of a forceful response, such as, if feasible, providing a prior warning or giving an order to comply[.]
In considering these factors, you should give deference to prison officials in the adoption and execution of policies and practices that in their judgment are needed to preserve discipline and to maintain internal security in a prison.
The District Court dismissed all of the defendants except Pasha. After the trial court denied Pasha summary judgment on his qualified immunity defense, Bearchild tried his case to a six-member jury, pro se. The jury returned a verdict in Pasha’s favor. Bearchild appealed, alleging in part that jury instruction inaccurately explained the substantive elements of his Eighth Amendment claim.
Held: The Ninth Circuit Court of Appeals examined Bearchild’s challenge to Instruction No. 12. The Court explained that prisoner Eighth Amendment challenges generally fall into three broad categories. One type of claim asserts that prison staff used excessive force against an inmate. See Hudson v. McMillian, 503 U.S. 1, 5-6 (1992). The Court explained that Bearchild pleaded a sexual assault claim and the Circuit had consistently placed prisoner sexual assault claims within the same legal framework as excessive force claims. See Wood v. Beauclair, 692 F.3d 1041, 1051 (9th Cir. 2012); Schwenk v. Hartford, 204 F.3d 1187, 1197 (9th Cir. 2000). Here, Bearchild asserted that Pasha abused his position of authority by converting a routine pat-down search into a humiliating and abusive sexual assault.
The Court recognized that there was no model jury instruction for Eighth Amendment sexual assault, and the Court took the opportunity to address the Circuit’s law governing this type of claim. The Court held that a prisoner presents a viable Eighth Amendment sexual assault claim where he or she proves that a prison staff member, acting under color of law and without legitimate penological justification, touched the prisoner in a sexual manner or otherwise engaged in sexual conduct for the staff member’s own sexual gratification, or for the purpose of humiliating, degrading, or demeaning the prisoner. The Court held that this definition recognized that there are occasions when legitimate penological objectives within a prison setting require invasive searches, and that the definition also accounted for the “significant deference courts owe to prison staff, who work in challenging institutional settings with unique security concerns.”
Applying this definition, the Ninth Circuit held that jury instruction No. 12, which set out the substantive law of Bearchild’s Eighth Amendment claim, and which relied almost verbatim on Ninth Circuit Model Civil Jury Instruction 9.26, misstated the elements necessary to establish liability for an Eighth Amendment violation arising from sexual assault. The Court explained that Ninth Circuit case law dictated that all of the elements of a Section 1983 sexual assault claim were established if a prisoner proved that a sexual assault occurred. The Court observed that the jury was instructed that Bearchild was required to prove that any force exercised was both “excessive and unnecessary,” but the jury was not told that any act constituting sexual assault was by definition both excessive and unnecessary. Moreover, Instruction No. 12’s direction to consider the “need to use force” and the “relationship between the need to use force and the amount of force used,” also likely confused the jury because it was unaccompanied by an explanation that sexual assault does not require violent physical force, or indeed, any force.
The Court further held that it was impossible to determine whether the jury would have reached the same result had it been properly instructed. The Ninth Circuit Court of Appeals therefore reversed the District Court’s judgment and remanded for a new trial with appropriate jury instructions on the substantive law applicable to Bearchild’s claim.
Dissenting in part, Judge Callahan stated that the District Court’s use of the Ninth Circuit’s model jury instruction for Eighth Amendment excessive force claims, if error, was not plain error warranting a new trial, particularly in light of the District Court’s additional instruction defining “sexual abuse” in a manner well-tailored to the facts of the case.
C. Applying procedural deference required under federal death penalty law, Ninth Circuit holds that the California Supreme Court had a reasonable basis to reject plaintiff’s challenge to the validity of his Miranda waiver on the basis of mental incapability and coercion.
Cook v. Kernan, 2020 U.S. App. LEXIS 1757 (9th Cir. Mar. 27, 2019)
Facts: In June 1992, eighteen-year-old Walter Joseph Cook was arrested for three murders that occurred over a four month period in 1992 in East Palo Alto, where Cook was a local dealer of crack cocaine. At the local jail, he was interviewed by East Palo Alto Police Sergeant Gregory Eatmon and Inspector Bruce Sabin of the San Mateo District Attorney’s Office. The interview lasted approximately seven hours, from around 7 p.m. that night to around 2 a.m. the next morning.
At the start of the interview, Sabin read Cook his rights under Miranda v. Arizona. After Sabin asked if he understood, Cook responded, “Yeah.” Sabin then asked, “Okay. Do you have any questions about that? That’s a yes or no,” to which Cook responded, “No.” The investigators then proceeded to question Cook about the murders. During the initial few hours of his videotaped questioning, Cook generally seemed calm and coherent, although he displayed slight confusion in his demeanor and responses at times. Cook denied involvement in murder at first.
After about two hours, the investigators changed their approach to more direct verbal confrontation. They told Cook, “[E]verything you been giving us up till now has been bullshit,” and that they had multiple witnesses, fingerprint evidence, and shell casings all pinning Cook to the murder. The investigators told Cook that it was now time for Cook tell the truth. Cook was reticent in his responses, expressed concern for his family’s safety, and began to cry as he replied. Then in response to a question about why he went to therapy as a child, Cook suddenly began sobbing loudly and spoke about his father’s physical abuse of his mother. He became increasingly emotional. The investigators took a break so Cook could calm down and took him back to his cell.
The interview resumed about 30 minutes later. Sabin again reminded Cook about his Miranda rights, and Cook reconfirmed that he understood them, and that he was willing to talk. Cook abruptly confessed to one of the murders.
A jury convicted Cook of three counts of first-degree murder, along with a special circumstance of multiple murders under California law, and sentenced him to death. In August 2006, the California Supreme Court issued its opinion on direct appeal and affirmed Cook’s convictions and death sentence in full.
After his state habeas proceeding over a decade later, Cook’s sentence was reduced to life without the possibility of parole on the ground that he was intellectually disabled within the meaning of Atkins v. Virginia, 536 U.S. 304 (2002). Cook subsequently sought federal habeas relief from his conviction on multiple grounds. The District Court denied his habeas petition but granted a certificate of appealability as to four issues. The Ninth Circuit Court of Appeals addressed one of these here: whether the state’s reliance on Cook’s taped confession resulted in a prejudicial violation of his constitutional rights.
Held: Cook asserted that his statements to police were unlawfully obtained in two ways: that he was unable to understand his Miranda rights from the outset of his interrogation and thus did not knowingly and intelligently waive them, and that his confessions were coerced based on the totality of the circumstances as established by the existing record. The California Supreme Court had summarily denied this claim “on the merits” when it had affirmed Cook’s convictions and sentence.
The Ninth Circuit Court of Appeals explained that in reviewing the California Supreme Court’s summary denial of Cook’s claim, the Ninth Circuit must determine: (1) “what arguments or theories supported or . . . could have supported . . . the state court’s decision”; and (2) “whether it is possible fairminded jurists could disagree that those arguments or theories are inconsistent with the holding in a prior decision of [the Supreme] Court.” Harrington v. Richter, 562 U.S. 86, 102 (2011).
The Ninth Circuit explained that Cook’s claim was subject to review under the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), 28 U.S.C. section 2254(d). Section 2254(d) requires “highly deferential” review of state court adjudications, “demand[ing] that state-court decisions be given the benefit of the doubt.” Woodford v. Visciotti, 537 U.S. 19 (2002) (per curiam) (quoting Lindh v. Murphy, 521 U.S. 320, 333 n.7 (1997)).
Applying AEDPA deference, the Court held that based on the facts that Cook was repeatedly warned of his Miranda rights, expressly acknowledged the warnings, and offered coherent and knowing answers to the officers’ questions, the California Supreme Court had a reasonable basis to reject Cook’s challenge to the validity of his Miranda waiver.
Cook also argued that the evidence in the existing record established coercion, highlighting expert opinions that his statements to police were not voluntary based on his mental capabilities at the time. The Court held the California Supreme Court had a reasonable basis because Cook failed to demonstrate how the conclusion that his confession was voluntary under the totality of the circumstances was “inconsistent with the holding in a prior decision of the [United States] Supreme Court.”
The Ninth Circuit accordingly affirmed the District Court’s denial of Cook’s 28 U.S.C. section 2254 habeas corpus petition.
Dissenting, Judge Murguia disagreed with the majority’s conclusion that the California Supreme Court could have reasonably denied habeas relief on the basis that Cook (1) knowingly and intelligently waived his Miranda rights; and (2) suffered no prejudice from the improper admission of his unlawfully obtained confession and other incriminating statements.
D. Officer who shot a privately owned dog that posed no objective threat to the officer or others not entitled to qualified immunity because the right was clearly established based on general constitutional principles or a consensus of persuasive authority.
Ray v. Roane, 2020 U.S. App. LEXIS 1885 (9th Cir. Jan. 22, 2020)
Facts: In September 2017, Officer Michael Roane drove to the property of Tina Ray to assist with an arrest warrant that was being served on Ray for domestic abuse. When Roane arrived on Ray’s property, four other officers were already present and parked in the driveway. Ray’s dog—a 150-pound German Shepard named Jax—was secured by a zip-lead attached to two trees that allowed the animal limited movement within a “play area” of the yard. Rather than park in the driveway like the other officers, Roane parked his truck within the dog’s “play area,” prompting the other officers on scene to shout and gesture toward Roane, indicating that he should “[w]ait” and “[l]et [Ray] get her dog.” Roane exited his vehicle and started walking toward the house.
According to Ray’s complaint, the events proceeded as follows. As Roane emerged from his vehicle, Jax started barking at and approaching Roane. Roane backed away from the dog and drew his firearm in response, while Ray ran to the zip-lead and began shouting Jax’s name. “In a short moment,” Jax reached the end of the zip-lead and “could not get any closer” to Roane. Roane observed that the dog could not reach him, and further observed that Ray was now holding onto Jax’s fully-extended lead and continuing to call Jax’s name. Roane therefore stopped backing up. Roane then took a step forward, positioning himself over Jax, and fired his weapon into the dog’s head. The dog died from the wound.
Ray brought a claim under 42 U.S.C. section 1983, alleging that her Fourth Amendment rights were violated when Roane shot and killed her dog when it was in Ray’s yard, tethered, and incapable of reaching or harming Roane. In her complaint, Ray asserted several claims for relief against Roane, including unlawful seizure of Jax in violation of the Fourth Amendment. Roane moved to dismiss the entire action against him and answered the complaint. The District Court concluded Roane’s actions had been reasonable under the totality of the circumstances and he would be entitled to qualified immunity. Accordingly, the District Court dismissed the entire action with prejudice. Ray appealed the dismissal.
Held: The Court of Appeal explained as an initial matter that in reviewing a motion to dismiss for failure to state a claim, the Court must accept as true all of the factual allegations contained in the complaint and draw all reasonable inferences in favor of the plaintiff.
Turning to the matter at hand, the Court explained that to determine whether a complaint should survive a qualified immunity-based motion to dismiss, the Court followed the two-prong inquiry set forth by the United States Supreme Court, analyzing (1) whether a constitutional violation occurred and (2) whether the right violated was clearly established. See Pearson v. Callahan, 555 U.S. 223, 236 (2009); Saucier v. Katz, 533 U.S. 194, 200 (2001); Melgar v. Greene, 593 F.3d 348, 353 (4th Cir. 2010). A court may consider either prong of the qualified immunity analysis first. Sims v. Labowitz, 885 F.3d 254, 260 (4th Cir. 2018). On appeal, Ray argued the District Court erred in analyzing both prongs of the qualified immunity analysis.
The Ninth Circuit considered the first prong, the presence of a constitutional violation. The Court first noted that it was well-settled that privately owned dogs are “effects” under the Fourth Amendment, and that the shooting and killing of such a dog constitutes a “seizure.” Altman v. City of High Point, N.C., 330 F.3d 194, 203-05 (4th Cir. 2003). Thus, the shooting of Ray’s dog by Officer Roane was only constitutional if Roane’s actions were reasonable under the Fourth Amendment on the facts provided here.
The Court noted that Roane stopped backing away from Jax when the dog reached the end of the zip-lead, and then took a step toward the dog before firing his weapon. From this, the Court inferred that Roane observed that the dog could no longer reach him, and, thus, could not have held a reasonable belief that the dog posed an imminent threat. Taking these factual allegations as true and drawing these reasonable inferences in Ray’s favor, the Court concluded that Roane’s seizure of Jax was unreasonable because Jax no longer posed any threat to Roane. Accordingly, the Ninth Circuit concluded the District Court erred in holding that the complaint failed to allege a violation of Ray’s Fourth Amendment rights.
The Court then addressed the “clearly established” second prong of the qualified immunity inquiry. The Court explained that, despite his alleged conduct that violated the Fourth Amendment, Roane was still entitled to qualified immunity unless the Court concluded that a reasonable officer in Roane’s position would have understood that his conduct was unlawful at the time of the shooting.
Viewing all facts in the complaint and inferences arising therefrom in Ray’s favor as the standard of review required, the Court had already determined that Roane shot Jax at a time when he could not have held a reasonable belief that the dog posed a threat to himself or others. Based on this conclusion, the Court also held that a reasonable police officer would have understood that killing Jax under such circumstances would constitute an unreasonable seizure of Ray’s property under the Fourth Amendment.
The Court explained that the unlawfulness of Roane’s alleged actions was established by the general principles espoused in Altman. In Altman, the Ninth Circuit had held that privately owned dogs are protected under the Fourth Amendment, and further established that the reasonableness of the seizure of a dog depended on whether the governmental interest in safety outweighs the private interest in a particular case. 330 F.3d at 203-05. The Court found here that based on these broader principles alone, it would have been “manifestly apparent” to a reasonable officer in Roane’s position that shooting a privately owned dog, in the absence of any safety rationale at all, was unreasonable.
The Court also observed that the consensus of the sister circuits made clear that this principle was clearly established by September 2017. The Ninth Circuit agreed with the D.C. Circuit’s observation in 2016, before Roane’s alleged conduct here, that “[e]very circuit that has considered the issue . . . ha[s] invariably concluded that ‘the use of deadly force against a household pet is reasonable only if the pet poses an immediate danger and the use of force is unavoidable.’“ Robinson v. Pezzat, 818 F.3d 1, 7 (D.C. Cir. 2016) (citation omitted).
The Ninth Circuit Court of Appeals thus concluded that Ray’s complaint plausibly stated a claim for an unconstitutional seizure of Ray’s property for which Roane was not entitled to qualified immunity. The Court accordingly reversed and remand for further proceedings.
E. An electronic search condition is not unconstitutionally overbroad as applied to minor if the nature of minor’s crimes is directly related to using electronic devices.
In re Q.R., 2020 Cal. App. LEXIS 63 (6th Dist. Jan. 24, 2020)
Facts: Q.R., a minor, recorded photographs and video on his cellular phone of consensual sexual activity between himself and Jane Doe, both under 18 years old. He later extorted money from Doe by threatening to disclose the recordings to other students at their high school. Q.R. was placed on juvenile probation after admitting to felony possession of child pornography. Police officers obtained a warrant to search his cellphone. Q.R. used a password-based application called KeepSafe on his phone to securely store videos and photographs, and he provided the password to police. The officers discovered incriminating text messages, videos and nude photographs of Doe, and Q.R. was arrested. He admitted to two counts: possession or control of matter depicting a person under 18 engaging in sexual conduct, and extortion of property counts. Q.R. was declared a ward of the juvenile court and was placed on juvenile probation in the custody of his parents.
At the disposition hearing, the juvenile court imposed a probation condition requiring him to submit all electronic devices under his control to warrantless search by the probation department and to provide passwords necessary to access information on those devices.
The Sixth District affirmed the disposition order. The California Supreme Court granted review and transferred the matter back to the Sixth District with directions to vacate its decision and reconsider the cause in light of In re Ricardo P. (2019) 7 Cal.5th 1113.
Held: The California Sixth District Court of Appeal explained that juvenile courts have broad discretion to fashion probation conditions, and may impose any reasonable condition that is fitting and proper to the end that justice may be done and the reformation and rehabilitation of the ward enhanced. (In re Sheena K. (2007) 40 Cal.4th 875, 889.) Juvenile probation conditions may be broader than those imposed on adult offenders “because juveniles are deemed to be more in need of guidance and supervision than adults, and because a minor’s constitutional rights are more circumscribed.” “A probation condition that imposes limitations on a person’s constitutional rights must closely tailor those limitations to the purpose of the condition to avoid being invalidated as unconstitutionally overbroad.” (Sheena K., supra, 40 Cal.4th at p. 890.)
Q.R. contended that the electronic search condition was unconstitutionally overbroad and that that the reasoning of Ricardo P. should apply. The Court stated that Q.R. essentially argued that the burden of the condition was not narrowly tailored to its purpose “because the condition is not limited in any way to the types of data that may be searched.”
The search condition specifically required Q.R. to “[s]ubmit all electronic devices under [his] control to a search of any text messages, voicemail messages, call logs, photographs, email accounts and social media accounts, with or without a warrant, at any time of the day or night, and provide the probation or peace officer with any passwords necessary to access the information specified.”
The Court emphasized that Q.R. used an electronic device to commit both crimes he admitted. He stored the illegal photographs and videos on his cellular phone, and he used that phone to send text messages demanding money while implicitly threatening to share the “pics and videos” with others if Jane Doe did not comply. The Court thus concluded that access to Q.R.’s electronic devices was critical to monitor his progress on probation and to ensure that he was not continuing to engage in the sort of criminal conduct that led to him being declared a ward of the court. Moreover, the need for robust access was particularly critical given that Q.R. previously stored illegal content in a password-protected application. Given the direct relationship between Q.R.’s offenses and his use of an electronic device, the Court found the search condition appropriately tailored.
The Court rejected Q.R.’s contention that the condition was overbroad because it did not define specific types of “electronic devices” that probation officers were allowed to search. The Court explained that by allowing the search of other devices, the condition ensured that Q.R. was neither storing illegal images nor attempting to extort money by the use of any electronic device. Otherwise, he could attempt to circumvent the condition by using an unlisted device for inappropriate storage or communication.
The Court also rejected Q.R.’s argument that Ricardo P. applied to the case here because the Court found Ricardo P. distinguishable; the offense Ricardo P. committed did not involve the use of an electronic device, whereas an electronic device was integral to Q.R.’s adjudication.
Accordingly, the Court affirmed.
Officer-related records in the possession of the California Department of Justice are subject to disclosure, regardless of whether such records concern peace officers employed by the department or by another state or local agency, and no matter which agency created the records.
Becerra v. Superior Court, 2020 Cal. App. LEXIS 78 (1st Dist. Jan. 29, 2020)
Facts: Xavier Becerra is the Attorney General of the State of California and the chief law officer of the State. The California Department of Justice is a state agency that employs sworn peace officers and possesses certain records relating to the officers that it employs and records related to officers who are employed by other state and local law enforcement agencies.
In January 2019, the First Amendment Coalition requested from the Department all records within its possession subject to disclosure under amended Section 832.7. Specifically, it asked for “records relating to a report, investigation or finding . . . of any of the following: (1) An incident involving the discharge of a firearm at a person by a peace officer or custodial officer; [¶] (2) An incident in which the use of force by a peace officer or custodial officer against a person resulting in death or in great bodily injury; and/or [¶] (3) An incident in which a sustained finding was made by any law enforcement agency or oversight agency that a peace officer or custodial officer engaged in sexual assault involving a member of the public.” It sought records for incidents that occurred in 2016, 2017, and 2018.
In February 2019, pursuant to the CPRA and Section 832.7, media organization KQED requested records from Attorney General Becerra and the California Department of Justice (collectively, the “Department”). Specifically, they requested “[r]ecords from Jan. 1, 2014 to Dec. 31, 2018 of sustained findings that a peace officer, including those employed by the Ca. Dept. of Justice, committed sexual assault or dishonesty-related misconduct.” KQED also sought “[r]ecords from Jan. 1, 2014 to present relating to the report, investigation, or findings of incidents in which the use of force by a peace officer or custodial officer against a person resulted in death, or in great bodily injury.”
The Department partially denied the requests of First Amendment Coalition and KQED (collectively, “real parties”), explaining that “[t]o the extent that the Attorney General has obtained records from other state and local law enforcement agencies, the Attorney General is not the agency that ‘maintains’ those documents. A requester may properly seek disclosure from the employing agency, which not only maintains the records, but will be best situated to assess any applicable exceptions to the disclosure requirement and any statutorily required redactions concerning sensitive and private information. Further, to the extent that the Attorney General has obtained such records in relation to investigations or proceedings that the Attorney General is conducting, the disclosure provisions in section 832.7 do not apply to the Attorney General, under section 832.7, subdivision (a).”
In March 2019, real parties jointly petitioned for a writ of mandate to compel the Department’s compliance with their CPRA requests, including those “records that were created by or involve another state or local agency” and “records that concern the Attorney General’s own investigations.” In its answer to the petition, the Department admitted that it possessed “certain records sought by [real parties], likely totaling many thousands of such records if not more” and that it “created some but not all of those records.” The Department again claimed that neither Section 832.7 nor the CPRA required or authorized the disclosure of records it obtained from other state or local law enforcement agencies and further asserted that such records could be requested directly from those agencies.
In July 2019, the trial court granted real parties’ writ petition. The court ordered the Department to produce “all requested records except those records or parts thereof that this court determines may be lawfully withheld or redacted.” The Department filed a petition for a writ of mandate seeking to overturn the trial court’s order.
Held: Enacted in 1968, the California Public Records Act (“CPRA”; Government Code section 6250 et seq.) grants public access to public records held by state and local agencies. Modeled after the federal Freedom of Information Act, the CPRA was enacted for the purpose of increasing freedom of information by giving members of the public access to records in the possession of state and local agencies. The Legislature declared that such “‘access to information concerning the conduct of the people’s business is a fundamental and necessary right of every person in this state.’” (Los Angeles County Bd. of Supervisors v. Superior Court (2016) 2 Cal.5th 282, 290 (citing Section 6250).)
While the CPRA must be “broadly construed” because its statutory scheme “furthers the people’s right of access” (Cal. Const., art. 1, section 3(b)(2)), the act does not confer an absolute right of access. As part of the CPRA, the Legislature included a provision declaring it was “mindful of the right of individuals to privacy.” Thus, judicial decisions interpreting the CPRA try to balance the public right to access to information, the government’s need, or lack of need, to preserve confidentiality, and the individual’s right to privacy. (See Copley Press, Inc. v. Superior Court (2006) 39 Cal.4th 1272, 1282 (“Copley Press”).)
The CPRA balances the dual concerns for privacy and disclosure by providing for various exemptions that permit public agencies to refuse disclosure of certain public records. These exemptions are generally designed to protect the privacy of persons whose data or documents come into governmental possession. Law enforcement investigatory files were, until recently, categorically exempted from the CPRA’s general requirement of disclosure. (Government Code section 6254(f).)
In 1978, the Legislature enacted Penal Code sections 832.7 and 832.8 to mandate confidentiality of peace officer personnel records. In 2018, the Governor signed Senate Bill No. 1421 (“SB 1421”), which amended section 832.7. Under SB 1421, Section 832.7 kept the provision that “personnel records of peace officers and custodial officers and records maintained by any state or local agency pursuant to Section 832.5, or information obtained from these records, are confidential and shall not be disclosed” in any criminal or civil proceeding except pursuant to discovery under certain portions of the Evidence Code. (Section 832.7(a).)
As amended, however, Section 832.7(a) now provides that the confidentiality of officer personnel records is subject to a newly added subdivision (b) (hereafter Section 832.7(b)), which states in relevant part: “Notwithstanding subdivision (a) [of section 832.7], subdivision (f) of Section 6254 of the Government Code, or any other law, the following peace officer or custodial officer personnel records and records maintained by any state or local agency shall not be confidential and shall be made available for public inspection pursuant to the California Public Records Act (Chapter 3.5 (commencing with Section 6250) of Division 7 of Title 1 of the Government Code)” (Section 832.7(b)(1); italics added), namely, records “relating to the report, investigation, or findings” of an incident falling into any of the following three categories: (1) an incident in which an officer discharged a firearm at a person or used force against a person resulting in death or great bodily injury; (2) “an incident in which a sustained finding was made by any law enforcement agency or oversight agency” that an officer “engaged in sexual assault involving a member of the public”; and (3) “an incident in which a sustained finding was made by any law enforcement agency or oversight agency of dishonesty by a peace officer or custodial officer directly relating to the reporting, investigation, or prosecution of a crime, or directly relating to the reporting of, or investigation of misconduct by, another peace officer or custodial officer, including, but not limited to, any sustained finding of perjury, false statements, filing false reports, destruction, falsifying, or concealing of evidence.” The First District Court referred to these three categories of records collectively as “officer-related records” throughout its opinion.
In sum, Section 832.7, as amended, specifies that the officer-related records pertaining to such incidents and findings are not confidential, and subject to disclosure pursuant to the CPRA.
The California First District Court of Appeal first considered whether Penal Code section 832.7 contemplated disclosure of officer-related records in the Department’s possession if such records concerned officers who were not employed by the Department or if such records were not created by the Department.
The Court determined that Section 832.7’s statutory language, whether considered on its own or in conjunction with the CPRA, was clear in contemplating disclosure of the records requested by real parties here. The Court concluded that standing on its own, Section 832.7’s statutory phrase “peace officer . . . personnel records and records maintained by any state or local agency” (italics added) made clear that officer-related records in the Department’s possession were subject to disclosure, regardless whether such records involved peace officers employed by the Department or by another state or local agency (“non-Department officers”), and no matter which agency created them. The Court found this interpretation strengthened if Section 832.7 was considered in conjunction with the CPRA, which explicitly states that, except as provided by the CPRA, a member of the public has the right to inspect “any writing containing information relating to the conduct of the public’s business . . . retained by” a state or local agency.
The Department contended that Section 832.7 “plainly requires an officer’s employing agency—but no other agency—to disclose records.” The Department argued that the records made nonconfidential by subdivision (b) of Section 832.7 were regulated by subdivision (a), which explicitly shields “records maintained by any state or local agency pursuant to section 832.5,” which in turn requires employing agencies to establish procedures for investigating public complaints against its officers and to maintain records of those complaints and any related investigation. (Sections 832.5, 832.7(a); italics added.) Thus, according to the Department, Section 832.7(b)’s dictate that “records maintained by any state or local agency shall not be confidential” was limited to records maintained pursuant to Section 832.5, i.e., those in the possession of an officer’s employing agency.
The First District disagreed, pointing out first that Section 832.7(b), on its face, explicitly states its provisions are not restricted by subdivision (a). (Section 832.7(b)(1) [“Notwithstanding subdivision (a)”].) The Court added that had if the Legislature had wanted to limit its disclosure amendments to records maintained by an officer’s employing agency or to records created by a public agency, the Legislature could have easily could have repeated in subdivision (b) the same “pursuant to section 832.5” qualification it used in subdivision (a), or have used the phrase “and employee-related records maintained by any state or local agency,” or the like. However, the Legislature had not done so. The Court also found the Department’s construction to be at odds with the CPRA’s broad language defining “public records” as “any writing” containing information relating to the public’s business that is “retained by” a state or local agency.
The First District held that these legislative aims were best advanced by a construction that authorized disclosure of all responsive officer-related records in the possession of a state agency, regardless whether they pertained to officers employed by the agency and no matter which agency created them. The Court also explained that this interpretation of the CPRA and Section 832.7 not only promoted the purposes reflected in the statutory language and legislative history, it harmonized with the constitutional principle that the people have a right to access information concerning the conduct of the people’s business and that restrictions on this right are narrowly construed. (Cal. Const., art. I, § 3, subd. (b)(1)-(2).) The Court stated that its construction also aligned with case law rejecting the notion that a record’s location, rather than its content, determines its confidentiality.
The CPRA Catchall Exemption
The Court then considered whether officer-related records that are subject to disclosure under Section 832.7 may nonetheless be withheld pursuant to the catchall exemption set forth in the CPRA. This Court noted that this exemption, codified in Government Code section 6255(a)), permits a public agency to withhold a public record under the CPRA if the agency demonstrates “that on the facts of the particular case the public interest served by not disclosing the record clearly outweighs the public interest served by disclosure of the record.” (Section 6255(a).) The Department contended that requests for Section 832.7 records may be subject to this CPRA exemption, while real parties argued that Section 832.7’s newer and more detailed provisions for redacting or withholding records must be deemed to prevail over the more general CPRA exemption.
The Court looked again to the statutory language, specifically that of Section 832.7(b)(1), which states in part: “Notwithstanding subdivision (a), subdivision (f) of Section 6254 of the Government Code, or any other law, the following peace officer or custodial officer personnel records and records maintained by any state or local agency shall not be confidential and shall be made available for public inspection pursuant to the California Public Records Act (Chapter 3.5 (commencing with Section 6250) of Division 7 of Title 1 of the Government Code) . . . .”
The Court found nothing in the statutory text suggesting that the CRPA as a whole was displaced by Section 832.7 because the Court determined that the section’s beginning phrase “[n]otwithstanding . . . any other law” could not reasonably be read to do away with the entire CRPA. The First District explained that “only those provisions of law that conflict with” [S]ection 832.7(b)—”not . . . every provision of law”—are inapplicable. The Court decided that the Legislature would not expressly mention one specific CPRA exemption (i.e. Section 6254(f)) while contemplating the clause as encompassing other CPRA exemptions. The Court explained that had the Legislature intended for Section 832.7 to override the CPRA catchall exemption, it could have explicitly said so, as it did for Government Code section 6254(f) and in other statutes.
Because both the language and legislative history of the Section 832.7 amendments were silent as to the nullification of any CPRA exemption—besides the Section 6254(f) exemption, the Court concluded that the CPRA catchall exemption may otherwise apply to requests for Section 832.7 officer-related records.
The Balance of Interests
The remaining consideration for the First District was whether the Department had sufficiently demonstrated that the records sought by real parties could be withheld under the CPRA catchall exemption. The Department’s main argument for withholding records concerning non-Department officers was the “onerous burden of reviewing, redacting, and disclosing records regarding other agencies’ officers, which involves “potentially millions of records.” In the Department’s view, this burden outweighed the public interest in obtaining those records from the Department rather than from the other state and local agencies that employed those officers.
The Court explained that although the CPRA catchall exemption may be invoked based on the concern that segregating nonexempt from exempt information would be unduly burdensome (American Civil Liberties Union Foundation v. Superior Court (2017) 3 Cal.5th 1032, 1043 (“ACLU Foundation”); State Bd. of Equalization v. Superior Court (1992) 10 Cal.App.4th 1177, 1188, the withholding of responsive records was not permitted unless the Department demonstrated “‘a clear overbalance on the side of confidentiality.’“ (ACLU Foundation, supra, at p. 1043.)
The First District noted that the trial court assumed the CPRA catchall exemption was available but determined the Department’s showing did not justify nondisclosure. The First District also concluded that the Department had not demonstrated “‘a clear overbalance on the side of confidentiality.
In support of its view, the Department offered the two-page declaration of Michael Newman, Senior Assistant Attorney General of the Department’s Civil Rights Enforcement Section. However, the Court found that Newman’s declaration was lacking in meaningful detail. For example, the Court noted Newman provided no information regarding the records on four of the six matters he raised or the potential burden arising from them. The Court perceived “a disconnect” between the hundreds of thousands of records suggested by Newman and the “potentially millions of records” that the Department’s petition claimed as its burden for review. Moreover, the Court stated that there was a “paucity of information regarding the Department’s costs of complying with real parties’ request,” notable in light of certain SB 1421 legislative materials reflecting that the Department had reported to the Legislature estimated “costs of $263,000 in 2018-19, $437,000 in 2019-20, and $422,000 in 2020-21 and ongoing” in order to “implement the new requirements, handle an increase in [CPRA] requests, and potential increased litigation.”
Thus, the Court concluded the declaration did not sufficiently demonstrate that public fiscal and administrative concerns over the expense and inconvenience of responding to real parties’ records request clearly outweighed the public interest in disclosure. The CPRA catchall exception thus did not apply to the records at issue here. Accordingly, the First District denied the Department’s petition for writ of mandate.
A. Employee who was terminated during his extended probation was not entitled to an administrative hearing before Civil Service Commission under Service Rule 18.03 because he was not a permanent employee.
Amezcua v. L.A. Cnty. Civil Serv. Com., 2019 Cal. App. LEXIS 1318 (2nd Dist. Dec. 18, 2019)
Facts: On January 25, 2015, the Los Angeles County Sheriff’s Department (the “Department”) hired David Amezcua as a deputy sheriff generalist. The Department placed Amezcua on a 12-month period of probation.
Generally, a candidate selected for appointment to a position with Los Angeles County (the “County”) must complete a probationary period before obtaining status as a permanent employee, according to rule 12.01(A) of the Los Angeles County Civil Service Rules (“Civil Service Rules”). “The period of probation shall be no less than six nor more than 12 calendar months from the date of appointment to a permanent position, as established by the director of personnel for each class.” (Rule 12.02(A).)
If “an employee is absent from duty during a probationary period, the appointing power may calculate the probationary period on the basis of actual service exclusive of the time away.” (Rule 12.02(B).) “‘Actual service’ means time engaged in the performance of the duties of a position or positions including absences with pay.” (Rule 2.01.) “If a change in the probationary period is made, the employee shall be notified prior to the end of the original probationary period.” (Rule 12.02(B).)
An employee who is still on probation may be terminated “without a hearing and without judicially cognizable good cause.” (Phillips v. Civil Service Com. (4th Dist. 1987) 192 Cal.App.3d 996, 1000; accord, Hill v. California State University, San Diego (4th Dist. 1987) 193 Cal.App.3d 1081, 1090.) A permanent employee, however, is entitled to a hearing before any such termination. (Rule 18.03.)
In July 2015, Amezcua became the subject of an administrative investigation when a female inmate at the detention center where Amezcua was assigned complained that Amezcua had asked her inappropriate personal questions and expressed a desire to have a relationship with her after her release. On or about July 24, 2015, the Department placed Amezcua on relieved of duty status. Amezcua was told that he had to turn in his gun and his badge, go home, and stay at home from 8:30 a.m. to 5:00 p.m. from Monday through Friday.
On or about August 6, 2015, the Department sent Amezcua a letter notifying him that his probationary period was being extended pursuant to rule 12.02: “In accordance with Civil Service Rule 12.02, your probationary period as a Deputy Sheriff Generalist … has been extended. This extension is due to your absence from work as a result of being Relieved of Duty. [¶] Upon your return to full duty status, your unit will notify Personnel Administration and your probationary period will be recalculated.” Amezcua signed a receipt of service, certifying that he had received the letter extending his probation.
On July 18, 2016, the Department terminated Amezcua. Although the administrative investigation was deemed unresolved, the Department concluded that Amezcua had a “propensity to engage in inappropriate communication with inmates, lack of attention to safety, unethical conduct, and poor judgment.”
Amezcua’s subsequent appeal of the probationary discharge was denied in December 2016 by the County Department of Human Resources. Amezcua’s appeal of his termination to with the Los Angeles County Civil Service Commission (the “Commission”) was also denied in December 2016. His amended appeal was also denied in February 2017.
Amezcua filed a petition for writ of mandate, contending that: The Department improperly extended his probation; he became a permanent employee 12 months after his hire date; and as a permanent employee, he was entitled to a hearing before discharge. Amezcua argued that the Department violated the Civil Service Rules by extending his probationary period; that he was never “absent from duty” within the meaning of rule 12.02(B), and that his firing as a probationary employee was improper as a matter of law because he became a permanent employee on January 24, 2016, that is, 12 months from the date of his hire.
The trial court denied Amezcua’s petition. The court first determined that “there should be no dispute that [Amezcua] was absent from duty when he was on ‘relieved of duty’ status.” The court also concluded that Amezcua was not performing “actual service as defined in [rule] 2.01 because he was not ‘engaged in the performance of the duties of a [deputy sheriff].’” Pursuant to rule 12.02, the Department was thus entitled to release Amezcua during his extended period of probation. Finally, the court found that Amezcua, as a probationary employee, was not entitled to a hearing before the Commission under rule 18.03.
Held: The Second District Court of Appeal observed that “[t]he construction of county ordinances and rules is subject to the same standards applied to the judicial review of statutory enactments.” (Department of Health Services v. Civil Service Com. (2nd Dist. 1993) 17 Cal.App.4th 487, 494-5; accord, Dobbins v. San Diego County Civil Service Com. (4th Dist. 1999) 75 Cal.App.4th 125, 129.)
Amezcua raised a number of challenges to the trial court’s conclusion that he was a probationary employee at the time of his firing. First, he argued that under the Civil Service Rules, the Department was not authorized “to unilaterally extend [his] probationary period.” Based on the plain reading of rule 12.02(B), the Court rejected this argument, because rule 12.02(B) permitted the “appointing power,” in this case, the Department, to “calculate the probationary period on the basis of actual service exclusive of the time away.” Thus, the Court found no prohibition against the Department acting unilaterally if the other requirements of rule 12.02(B) were satisfied.
Amezcua also argued that because he was paid while on relieved of duty status, the Department was precluded from excluding this period of time from its calculation of his 12-month period of probation under rule 12.02(B). According to Amezcua, because “actual service” was defined as “time engaged in the performance of the duties of a position or positions including absences with pay” (italics added), only absences without pay may be excluded from the calculation of the probationary period. The Court disagreed, explaining that if the drafters of the Civil Service Rules intended to limit the ability of the appointing power to calculate the probationary period based on whether an employee was absent with or without pay, they could have so stated; however, they did not. The Court maintained that rule 12.02 instead expressly permitted the Department to exclude from the calculation of the probationary period those times when an employee was “absent from duty,” and made no reference as to whether that absence was paid or unpaid.
Moreover, the Court explained that even if it accepted Amezcua’s interpretation of “actual service” as “including all absences with pay”—and the Court observed that the term “all” did not appear in rule 2.01—the Court would not correspondingly accept Amezcua’s interpretation of rule 12.02(B) as limiting the calculation of the probationary period to “the basis of actual service” only. The Court found that Amezcua’s construction would render the term “exclusive of the time away,” which immediately followed, as mere surplusage. (Department of Health Services v. Civil Service Com., supra, 17 Cal.App.4th at p. 495, fn. 6.)
Amezcua summarily contended that “[a]lthough the Department relieved [him] of duty, it did not cause him to be ‘absent from duty,’ or impose any ‘time away,’ as those phrases are used in [rules 12.01 and 2.01.]” The Court construed this argument to mean that during the time he was on relieved of duty status, Amezcua was engaged in the duties of a deputy sheriff and thus not absent from or away from duty.
The Court observed that Amezcua failed to identify any duties he was required to perform during the period he was on Relieved of Duty status, and the record did not reflect that while Amezcua was assigned home he was obligated to engage in any task, conduct, service, or function of a deputy sheriff or any other employee. Thus, the Court found there was ample evidence to support the trial court’s conclusion that Amezcua was “absent from duty” and had “time away” from duty, such that the Department was permitted to extend Amezcua’s period of probation pursuant to rule 12.02(B). Accordingly, the Second District concluded that the trial court did not err in denying Amezcua’s petition for writ of mandate. Because Amezcua was a probationary employee at the time of his firing, the Court correspondingly rejected Amezcua’s related argument that he was entitled to a hearing before the Commission pursuant to rule 18.03. The Second District Court of Appeal accordingly affirmed.
B. Officer who was routinely denied backup assistance during enforcement stops and otherwise harassed and disadvantaged due to his sexual orientation faced working conditions so intolerable that a reasonable employee would have been forced to resign.
Brome v. Cal. Highway Patrol, 2020 Cal. App. LEXIS 71 (1st Dist. Jan. 28, 2020)
Facts: Jay Brome began his employment at the California Highway Patrol (“CHP”) in 1996. During his nearly 20-year career, other officers subjected Brome, who was openly gay, to derogatory, homophobic comments; singled him out for pranks; repeatedly defaced his mailbox; and refused to provide him with backup assistance during enforcement stops in the field. As a result, Brome feared for his life during enforcement stops, experienced headaches, muscle pain, stomach issues, anxiety and stress, and became suicidal by early 2015 when he worked at CHP’s Solano County office. In January 2015, he went on medical leave and filed a workers’ compensation claim based on work-related stress.
Shortly after Brome took leave, his captain sent him a letter expressing concern regarding his allegations of harassment and a hostile work environment. The captain understood that Brome was alleging workplace harassment and that he had not only a workers’ compensation claim but also a potential discrimination complaint.
Brome’s workers’ compensation claim was resolved in his favor in October 2015. He took industrial disability retirement on February 2016, ending his employment with the CHP.
On September 15, 2016, Brome filed an administrative complaint with the Department of Fair Employment and Housing. He sued the CHP the next day asserting that, during his career as a law enforcement officer, he suffered harassment and discrimination because of his sexual orientation in violation of the California Fair Employment and Housing Act (Government Code section 12900 et seq.).
The CHP sought summary judgment, contending Brome’s claims were untimely because he did not file his administrative complaint within one year of the challenged actions, as required under former Government Code section 12960, subdivision (d); the challenged actions were prior to the start of his medical leave in January 2015, more than a year before his September 2016 administrative complaint filing.
Brome argued he was entitled to equitable tolling, which allows the suspension or extension of a limitations period under certain circumstances. (See McDonald v. Antelope Valley Community College Dist. (2008) 45 Cal.4th 88, 99–100.) He argued that the filing of his January 2015 workers’ compensation claim should stop the clock on his one- one-year filing deadline during the pendency of his compensation claim. Brome also relied on the continuing violation doctrine, under which an employer may be liable for acts occurring before the limitations period if they are sufficiently linked to unlawful conduct that occurred within the period. (See Richards v. CH2M Hill, Inc. (2001) 26 Cal.4th 798, 802.) He also asserted that his complaint was timely based on a constructive discharge theory because his working conditions were so intolerable that they effectively forced him to take disability retirement in February 2016. (See Turner v. Anheuser-Busch, Inc. (1994) 7 Cal.4th 1238, 1246–51.)
The trial court granted summary judgment to the CHP, holding that Brome’s claims were filed after the statute of limitations expired and a reasonable jury could not have concluded they were timely based on an exception to the deadline. The trial court also rejected Brome’s constructive discharge argument on the merits, holding that he failed to establish intolerable working conditions. Brome appealed the grant of summary judgment.
Held: On appeal, the California First District Court of Appeal first considered Brome’s assertion that the filing of his workers’ compensation claim could equitably toll the one-year deadline for filing his discrimination claim with the Department of Fair Employment and Housing. The Court agreed, concluding that a reasonable jury could find that a workers’ compensation claim for a work-related stress injury based on the same circumstances provided timely notice of the discrimination claims. The Court noted that in responding to his workers’ compensation claim, Brome’s superior officers were well aware of his discrimination concerns.
The Court also found that equitable tolling would not be prejudicial given the availability of the workers’ compensation evidence, and a delay in filing did not preclude a finding of good faith and reasonable conduct. The Court explained that a workers’ compensation investigation concerning the source of Brome’s work-related stress should have preserved evidence concerning his discrimination claims. The Court noted that the record reflected that after Brome filed his workers’ compensation claim, the CHP had “lots of conversations back during that time period” about whether the disability Brome asserted was “because of work-related issues or other related issues.” Brome’s captain was aware of Brome’s belief that he was treated differently based on his sexual orientation and understood he had a potential discrimination claim.
The continuing violation doctrine “allows liability for unlawful employer conduct occurring outside the statute of limitations if it is sufficiently connected to unlawful conduct within the limitations period.” (Richards, supra, 26 Cal.4th at p. 802.) The Court found that evidence of the harassment, hostile environment, and discrimination conduct could establish a continuing violation because the discriminatory acts occurred with reasonable frequency and superior officers had not refused assistance. The Court determined that Brome had presented evidence sufficient for a reasonable jury to find that similar kinds of actionable conduct occurred prior to and during the limitations period.
Brome also argued that the trial court erred in concluding Brome was unable to establish that he was constructively discharged as a matter of law. The First District explained that to establish constructive discharge, an employee must show that the employee’s working conditions were so intolerable or aggravated that a reasonable employee would be forced to resign and that the employer either created or knowingly permitted those conditions, such that a reasonable employer would realize that a reasonable employee in such circumstances would resign. (Turner, supra, 7 Cal.4th at pp. 1251, 1246–1250.) To be intolerable, working conditions must be “unusually ‘aggravated’ or amount to a ‘continuous pattern.’” (Turner, 7 Cal.4th at pp. 1246–1247; see also id. at p. 1246 [“The conditions giving rise to the resignation must be sufficiently extraordinary and egregious”]). Each individual incident need not be sufficient standing alone to force a resignation; rather, the accumulation of discriminatory treatment over time can amount to intolerable working conditions. (See, e.g., Thompson v. Tracor Flight Systems., Inc. (2001) 86 Cal.App.4th 1156, 1171–1172 [“even though individual incidents in a campaign of harassment do not constitute justification for an employee to resign, the overall campaign of harassment can constitute such a justification”]; Valdez v. City of Los Angeles (1991) 231 Cal.App.3d 1043, 1056 [employee can establish constructive discharge by showing a “‘continuous pattern of discriminatory treatment over a period of years.’”].)
The Court concluded that Brome had raised a triable issue as to whether his working conditions were so intolerable that a reasonable employee would have resigned. Unlike the other officers at the Solano office, Brome was routinely forced to respond to high-risk enforcement and accident scenes on his own, placing his life in danger. These denials of backup assistance happened daily and were at least in some instances due to his sexual orientation.
The CHP contended that the working conditions could not have been intolerable if Brome endured them for years. However, the Court pointed out that Brome transferred to the Solano office because he was hoping to get away from the discrimination and harassment he suffered in his previous post, and once there he sought resolution by repeatedly complaining to his superiors. Because of his working conditions, Brome suffered from anxiety, trauma, and sleep disturbances, and eventually became suicidal. Viewed as a whole, the record could support a conclusion that Brome’s working conditions became objectively intolerable over time and would have forced a reasonable employee to resign. (See Valdez, supra, 231 Cal.App.3d at p. 1058 [“The length of time the plaintiff remained on the job is relevant in determining the severity of the impact of the working conditions but does not as a matter of law prevent the plaintiff from proceeding” on a constructive discharge claim]; see also Turner, supra, 7 Cal.4th at p. 1254.)
Moreover, the Court stated that although a jury could find that the CHP tried to address the problem, there was also evidence to support a finding that the CHP knowingly permitted the intolerable conditions and should have known that a reasonable employee in Brome’s position would resign.
Accordingly, the First District reversed the trial court’s judgment, and remanded with instructions to deny the CHP’s motion for summary judgment as to Brome’s California Fair Employment and Housing Act claims.
 The full text of Section(b) states: “It shall be competent in all city charters to provide, in addition to those provisions allowable by this Constitution, and by the laws of the State for: (1) the constitution, regulation, and government of the city police force (2) subgovernment in all or part of a city (3) conduct of city elections and (4) plenary authority is hereby granted, subject only to the restrictions of this article, to provide therein or by amendment thereto, the manner in which, the method by which, the times at which, and the terms for which the several municipal officers and employees whose compensation is paid by the city shall be elected or appointed, and for their removal, and for their compensation, and for the number of deputies, clerks and other employees that each shall have, and for the compensation, method of appointment, qualifications, tenure of office and removal of such deputies, clerks and other employees.”
 Specifically, Section 7284.6 prohibits state and local law enforcement from:
(1) inquiring into a person’s immigration status (Section 7284.6 (a)(1)(A));
(2) detaining a person on the basis of a “hold” request from immigration authorities (Section 7284.6 (a)(1)(B));
(3) providing information regarding a person’s release date or responding to requests for notification by providing release dates unless that information is available to the public (Section 7284.6 (a)(1)(C));
(4) providing personal information, such as address and employment status, to immigration authorities, unless that information is available to the public (Section 7284.6 (a)(1)(D));
(5) making or intentionally participating in arrests based on civil immigration warrants (Section 7284.6 (a)(1)(E)); (6) assisting immigration authorities in warrantless searches near the United States border (Section 7284.6 (a)(1)(F));
(7) performing the functions of an immigration agent (Section 7284.6 (a)(1)(G));
(8) placing local law enforcement officers under the supervision of a federal agency for purposes of immigration enforcement (Section 7284.6 (a)(2));
(9) using immigration officers as interpreters for law enforcement matters under the jurisdiction of state or local law enforcement agencies (Section 7284.6 (a)(3));
(10) transferring a person to immigration authorities unless authorized by a judicial warrant or judicial probable cause determination (Section 7284.6 (a)(4));
(11) providing office space exclusively dedicated for immigration agents within a county or city law enforcement facility (Section 7284.6 (a)(5)); and
(12) contracting with the federal government for use of California law enforcement facilities to house persons as federal detainees for purposes of civil immigration custody (Section 7284.6 (a)(6)).
 Government Code section 7284.8(a).
 384 U.S. 436.
 People v. Cook, 39 Cal. 4th 566 (Cal. 2006).
 In a concurrently filed memorandum disposition (Cook v. Kernan, 2020 U.S. App. LEXIS 2038 (9th Cir. Jan. 21, 2020)), the Court addressed remaining claims. This included a rejection of Cook’s ineffective assistance of counsel claim based upon alleged Miranda violations and coercion of his statements.
 Owens, 372 F.3d at 279.
 See also Brown v. Battle Creek Police Dep’t, 844 F.3d 556, 568 (6th Cir. 2016) (“[A] police officer’s use of deadly force against a dog . . . is reasonable under the Fourth Amendment when . . . the dog poses an imminent threat to the officer’s safety.”); Carroll v. Cty. of Monroe, 712 F.3d 649, 652 (2d Cir. 2013) (noting that the reasonableness of officers’ conduct is contingent on there being “a genuine threat to officer safety”); Viilo v. Eyre, 547 F.3d 707, 710 (7th Cir. 2008) (“[C]ommon sense . . . counsel[s] that the use of deadly force against a household pet is reasonable only if the pet poses an immediate danger[.]”); San Jose Charter of the Hells Angels Motorcycle Club v. City of San Jose, 402 F.3d 962, 977-78 (9th Cir. 2005) (holding that “any reasonable officer [would know] that the Fourth Amendment forbids the killing of a person’s dog, or the destruction of a person’s property, when that destruction is unnecessary”); Brown v. Muhlenberg Twp., 269 F.3d 205, 210-11 (3d Cir. 2001) (“[T]he state may [not], consistent with the Fourth Amendment, destroy a pet when it poses no immediate danger[.]”).
 In re Antonio R., 78 Cal.App.4th 937, 941 (4th Dist. 2000).
 5 U.S.C. section 552 et seq.
 Section 6250.
 Government Code sections 6254-6255.
 Copley Press, supra, 39 Cal.4th at p. 1282.
 Section 832.7, as amended by Stats. 2018, ch. 988, section 2, eff. Jan. 1, 2019.
 Government Code section 6254(f) is a CPRA provision that exempts disclosure of “[r]ecords of complaints to, or investigations conducted by, or records of intelligence information or security procedures of, the office of the Attorney General and the Department of Justice, the Office of Emergency Services and any state or local police agency, or any investigatory or security files compiled by any other state or local police agency, or any investigatory or security files compiled by any other state or local agency for correctional, law enforcement, or licensing purposes.”
 Section 832.7(b)(1)(A)(i), (ii).
 Section 832.7(b)(1)(B)(i)-(iii).
 Section 832.7(b)(1)(C)).
 Government Code section 6252(e).
 Government Code sections 6252(e), (a).
 Arias v. Superior Court, 46 Cal.4th 969, 983 (2009).
 This term refers to peace officers employed, not by the Department itself, but by another state or local agency.
 L.A. County Code, tit. 5, appen. 1.
 Pursuant to the Department’s manual of policies and procedures, “[a]n employee may be relieved of duty for disciplinary reasons … .” An employee on relieved of duty status will have his or her badge, identification card, and County-issued firearm taken away. Further, an employee on relieved of duty status may be assigned either to his or her residence or to a relieved-of-duty position. Reasons to assign a relieved of duty employee to his or her residence include if the employee could be discharged.
 The record showed that the only “task” Amezcua was required to perform was to stay at home for particular hours, but the Court stated that the obligation to stay at home, on its own, cannot be characterized as one of the duties of Amezcua’s position as a deputy sheriff.