Courtesy of James R. Touchstone, Esq.


  1. District Court erred by applying the subjective deliberate indifference standard to plaintiff’s Fourteenth Amendment claim of inadequate medical care to a pretrial detainee.

Sandoval v. Cnty. of San Diego, 2021 U.S. App. LEXIS 866 (9th Cir. Jan. 13, 2021)

Facts: In February 2014, deputies from the San Diego Sheriff’s Department arrested probationer Ronnie Sandoval at his residence after finding a gram of methamphetamine and drug paraphernalia, and took him the San Diego Central Jail. The arresting deputies did not know that Sandoval had swallowed an additional amount of methamphetamine in order to prevent its discovery. At the jail, deputies noticed that Sandoval was lethargic, disoriented, and, despite sweating profusely, stated that he was very cold. One of these deputies took Sandoval to the medical station, where the deputy told Nurse Romeo de Guzman that Sandoval was sweating and appeared disoriented and lethargic. Chavez told de Guzman, “there [is] still something going on [with Sandoval], so you need to look at him more thoroughly.” De Guzman told Chavez to put Sandoval in a medical observation cell. De Guzman attended to Sandoval shortly thereafter at about 5:00 p.m. A deputy who accompanied de Guzman into the cell noticed that Sandoval was shaking and “appeared to be having withdrawals from drugs.” The deputy also stated that De Guzman gave Sandoval a “very quick,” blood sugar test, which came back normal. Without conducting any further evaluation, de Guzman then told deputies that Sandoval was cleared for booking.

Although the medical observation cell was only 20 feet from the nursing station, de Guzman did not check on Sandoval at any point during the remaining six hours of his shift. When the next shift of nurses arrived at 11:00 p.m., de Guzman did not tell them anything about Sandoval either. Sandoval thus remained almost entirely unmonitored by medical staff for a total of nearly eight hours. When Sandoval was then discovered unresponsive and having a seizure, nurses failed to promptly summon paramedics. Sandoval died of a methamphetamine overdose.

Sandoval’s wife and successor-in-interest, Ana Sandoval (“Plaintiff”), brought suit under 42 U.S.C. section 1983 against, among others, de Guzman, alleging that they violated Sandoval’s Fourteenth Amendment right to adequate medical care in custody. The District Court granted summary judgment to de Guzman, concluding that there were no triable issues of fact as to liability and that the he was entitled to qualified immunity. Plaintiff appealed.

Held: After the District Court issued its decision, the Ninth Circuit Court of Appeals clarified that an objective standard applies to constitutional claims of inadequate medical care brought by pretrial detainees. Gordon v. County of Orange, 888 F.3d 1118, 1124-25 (9th Cir. 2018). Under the third element of the Gordon framework, pretrial detainees alleging that jail officials failed to provide constitutionally adequate medical care must show that the defendant “did not take reasonable available measures to abate that risk, even though a reasonable official in the circumstances would have appreciated the high degree of risk involved—making the consequences of the defendant’s conduct obvious…” Id. at 1125. To satisfy the third element, the plaintiff must show that the defendant’s actions were “objectively unreasonable,” which requires a showing of “more than negligence but less than subjective intent—something akin to reckless disregard.” Id. (quoting Castro v. County of Los Angeles, 833 F.3d 1060, 1071 (9th Cir. 2016)). In light of its holding in Gordon requiring the objective standard, the Ninth Circuit concluded here that the District Court erred by applying the subjective deliberate indifference standard to Plaintiff’s Fourteenth Amendment claim. 

Applying the Gordon framework and viewing the evidence in Plaintiff’s favor, the Court held that a jury could conclude that Sandoval would not have died but for the defendants’ unreasonable response to his obvious signs of medical distress. Specifically, a jury could conclude that a reasonable nurse who was told that Sandoval was shaking, tired, and disoriented—and who was specifically directed by a deputy to evaluate Sandoval “more thoroughly”—would have understood that Sandoval faced a “substantial risk of suffering serious harm.” Gordon, 888 F.3d at 1125. A jury could further conclude that de Guzman’s actions toward Sandoval—which were limited to administering a quick blood test and then ignoring Sandoval for the remaining six hours of his shift—were “akin to reckless disregard.” Id. De Guzman therefore was not entitled to summary judgment on liability.

The Ninth Circuit further held that Plaintiff had demonstrated that the available law was clearly established at the time as to the unreasonableness of the de Guzman’s conduct, that a reasonable nurse, knowing what de Guzman knew, would have understood that failing to check on Sandoval for hours and failing to pass on information about his condition presented such a substantial risk of harm to Sandoval that the failure to act was unconstitutional. The nurses were not entitled to qualified immunity. Accordingly, the Ninth Circuit Court of Appeals reversed and remanded.

  1. District Court properly denied defendant’s motion to suppress firearms found during search because search warrant was not overbroad.

United States v. King, 2021 U.S. App. LEXIS 982 (9th Cir. Jan. 14, 2021)

Facts: A male suspect in a serious domestic violence incident pointed an unloaded gun at a woman’s head. Neither the suspect nor the victim was charged in the case here. The victim then made contact with the police and described the suspect’s firearm as a ”large silver & gold revolver.” Police investigated. In a jailhouse conversation between the suspect and victim, the suspect asked the woman to give “the thing” to “Dubs.” Police suspected that “the thing” referred to the firearm and the victim admitted she gave the firearm to “Dubs” and described his appearance and phone number, the location of his house, his live-in girlfriend, and his vehicles. Using the victim’s information, officers learned that “Dubs” was Sheldon King. They discovered that King was prohibited from possessing firearms based on two prior felonies. Officers also observed King’s car parked at his residence—the place where the victim said she delivered the firearm.

After a police officer signed an affidavit stating that there was probable cause to believe King was in violation of Penal Code sec 29800(a) (felon in possession) and requested permission to search King’s home for the “outstanding firearm and any evidence that would further the [officer’s] investigation,” a judge authorized the warrant, allowing the search of King’s home for, among other things, “[a]ny firearm.” Police searching King’s home found four firearms, including the “silver and gold revolver” the domestic abuse victim had described.

King was charged with being a felon in possession. He moved to suppress the evidence found, arguing that the search was unconstitutional under the Fourth Amendment. After the District Court denied his motion to suppress the firearms, King entered a plea agreement and was sentenced to 90 months. He appealed, arguing in part that the search warrant was overbroad because there was only probable cause for the silver and gold revolver, not any other firearms.

Held: The Ninth Circuit Court of Appeals explained that under the Fourth Amendment, a warrant must not be overbroad. The scope of a warrant must be limited by its probable cause. United States v. SDI Future Health, Inc., 568 F.3d 684, 702 (9th Cir. 2009). The Court noted that a “magistrate’s determination of probable cause should be paid great deference by reviewing courts.” Illinois v. Gates, 462 U.S. 213, 236 (1983). When a magistrate has found probable cause, courts must not “invalidate the warrant by interpreting the affidavit in a hypertechnical, rather than a commonsense, manner.” United States v. Ventresca, 380 U.S. 102, 109 (1965). A court’s duty is limited to ensuring that the magistrate had a “substantial basis” for concluding that probable cause existed. Gates, 462 U.S. at 238.

The Court noted that in the officer’s affidavit, the officer detailed his investigation, his training and experience, and his suspicion that King was a felon in possession. The affidavit noted that King had two prior felonies, yet he still took possession of the “large silver & gold revolver” shortly after it was used in the domestic dispute. The officer also explained how he suspected that other weapons might be present at King’s residence since other ”individuals [may] arrive at the scene of [the] search” and that, in his experience, “many of these individuals are found to be in possession of weapons.” The Ninth Circuit found that these facts, taken together, provided the judge with a substantial basis to authorize the broader search for “any firearm.” The Court stated there was a “fair probability” that other firearms might be found at King’s home and they would constitute evidence of a crime. United States v. Diaz, 491 F.3d 1074, 1078 (9th Cir. 2007). The Court added that, even though the warrant complied with the Fourth Amendment, the good-faith exception[1] also justified denial of the suppression motion. The Ninth Circuit Court accordingly affirmed the District Court’s denial of the King’s motion to suppress.

  1. Use of un-Mirandized statement against defendant in prior criminal case alone is sufficient to support action under 42 U.S.C. section 1983 based on Fifth Amendment violation.

Tekoh v. Cnty. of L.A., 2021 U.S. App. LEXIS 1150 (9th Cir. Jan. 15, 2021)

Facts: Terence Tekoh was working at a Los Angeles medical center when a patient accused him of sexual assault. After hospital staff reported the allegation, Los Angeles Sheriff’s Department Deputy Carlos Vega responded to investigate. Deputy Vega found Tekoh in the medical center’s MRI area, and the two went into a nearby, private room to talk. Though Deputy Vega questioned Tekoh, he did not advise him of his Miranda[2] rights. By the end of the questioning, Tekoh had written a statement containing his apology and confession. Tekoh was arrested and charged in state court with unlawful sexual penetration. A mistrial was declared in the first trial, and in the retrial, where the prosecution first time introduced Tekoh’s confession, the jury returned a verdict of not guilty.

After his acquittal on the criminal charge, Tekoh filed an action under 42 U.S.C. section 1983 alleging, among other things, that Deputy Vega violated Tekoh’s Fifth Amendment right against self-incrimination. Before the trial in this case, Tekoh asked the District Court to instruct the jury that it should find in his favor on the Fifth Amendment claim if it determined that Deputy Vega obtained statements from him in violation of Miranda that were used in the criminal case against him. The District Court refused to instruct the jury on Tekoh’s theory, reasoning that the Supreme Court’s plurality decision in Chavez v. Martinez[3] held that Miranda was a mere “prophylactic rule,” rather than a “constitutional requirement,” and that a Section 1983 plaintiff like Tekoh “[could not] use a prophylactic rule to create a constitutional right.” Instead, the District Court instructed the jury to evaluate Tekoh’s claim that Deputy Vega had coerced a confession as if it were a Fourteenth Amendment claim based on fabrication of evidence. Thus instructed, the jury returned a verdict in favor of Deputy Vega.

After the trial, however, the District Court concluded that it had erred by instructing the jury to evaluate Tekoh’s claim as if it were brought under the Fourteenth Amendment instead of as a violation of the Fifth Amendment, and therefore ordered a new trial on the coerced confession claim. In the new trial, the District Court concluded that the use of the un-Mirandized statement alone was insufficient to demonstrate a violation of the right against self-incrimination, and, instead instructed the jury that Tekoh must show that the interrogation that procured the statement was unconstitutionally coercive under the totality of the circumstances, with the Miranda violation only one factor to be considered. After the jury again returned a verdict in favor of Deputy Vega, Tekoh appealed.

Held: The Ninth Circuit Court of Appeals considered whether the District Court should have given Tekoh’s proposed Miranda instruction, explaining that the decision hinged on whether the introduction of Tekoh’s un-Mirandized statement at his criminal trial constituted a violation of his Fifth Amendment rights.

The Court of Appeals explained that in Dickerson v. United States, 530 U.S. 428 (2000), the United States Supreme Court considered a federal statute, enacted in the aftermath of the high court’s Miranda decision, that provided that confessions were admissible as long as they were voluntarily made, regardless of whether Miranda warnings had been provided. Whether the rule set forth in the statute was constitutionally permissible “turn[ed] on whether the Miranda Court [had] announced a constitutional rule”; if it had, Congress could not override that rule by statute. Dickerson, 530 U.S. at 437. The Dickerson Court held that Miranda is a rule of constitutional law that could not be overruled by congressional action, and accordingly invalidated the federal statute.

In light of Dickerson, the Ninth Circuit held here that where the un-Mirandized statement has been used against the defendant in the prosecution’s case in chief in a prior criminal proceeding, the defendant has been deprived of his Fifth Amendment right against self-incrimination, and he may assert a claim against the state official who deprived him of that right under Section 1983. The Court of Appeals also held that the District Court erred in interpreting Chavez to stand for the proposition that a Section 1983 claim can never be grounded on a Miranda violation. The Ninth Circuit concluded that while the question of liability was ultimately for the jury to decide, Tekoh sufficiently demonstrated a Fifth Amendment violation caused by Deputy Vega under Section 1983, such that the District Court erred by failing to instruct the jury on this claim.

The Ninth Circuit stated that it was not holding that taking an un-Mirandized statement always gives rise to a Section 1983 action. The Court held only that where government officials introduce an un-Mirandized statement to prove a criminal charge at a criminal trial against a defendant, a Section 1983 claim may lie against the officer who took the statement. By contrast, in cases like Chavez, where the suspect was never charged, or where police coerce a statement but do not rely on that statement to file formal charges, the Fifth Amendment would not be implicated.

The Ninth Circuit Court of appeals accordingly vacated the District Court’s judgment on the jury’s verdict, reversed the District Court’s judgment as to Tekoh’s requested jury instruction, and remanded for a new trial in which the jury must be properly instructed that the introduction of a defendant’s un-Mirandized statement at his criminal trial during the prosecution’s case in chief alone is sufficient to establish a Fifth Amendment violation.

  1. Order suppressing physical evidence was reversed because government’s failure to give defendant Miranda warnings did not justify suppression.

United States v. Mora-Alcaraz, 2021 U.S. App. LEXIS 1613 (9th Cir. Jan. 21, 2021)

Facts: In November 2016, the Reno police department received a call reporting a domestic dispute at the home of the estranged wife of Julian Mora-Alcaraz. Police were informed that Mora-Alcaraz had brandished a firearm during an argument, but then things calmed down and Mora-Alcaraz slept on the couch at his estranged wife’s house. The next day, Julian Mora-Alcaraz was with his seven-year-old son at a shopping mall where he agreed to meet an officer who wanted to discuss the previous day’s incident. The officer arrived at the mall with three other armed, uniformed officers in two police cars. They met Mora-Alcaraz outside a mall store. The police separated Mora-Alcaraz’s son from him before beginning Mora-Alcaraz’s interrogation. Throughout the encounter, the officers never read him the warnings required by Miranda v. Arizona, 384 U.S. 436 (1966). After Mora-Alcaraz admitted being an alien and possessing a firearm, he consented to a search of his vehicle that resulted in seizure of a firearm.

Mora-Alcaraz was indicted for being an alien in possession of a firearm in violation of 18 U.S.C. sections 922(g)(5)(A) and 924(a)(2). He moved to suppress both his statements and the firearm. The District Court ordered the statements suppressed. The Court also ordered the firearm suppressed, on the ground that the lack of Miranda warnings may have led to Mora-Alcaraz’s consent to the search. The government subsequently filed a motion for reconsideration. After the District Court denied the motion, the government appealed.

Held: On appeal, the government contended that the statements should not have been suppressed because Mora-Alcaraz was not taken into custody, and that the District Court erred in suppressing the firearm as the fruit of a Miranda violation. The Ninth Circuit Court of Appeals first affirmed the District Court’s suppression of Mora-Alcaraz’s incriminating statements made after the armed police officers met him in two marked vehicles, separated him from his son, and interrogated him without reading him Miranda warnings. The Court of Appeals held that the totality of the circumstances, including the factors identified in United States v. Kim, 292 F.3d 969 (9th Cir. 2002), supported the lower court’s conclusion that a reasonable person in Mora-Alcaraz’s position would not have felt free to end the questioning and leave the mall; and that the District Court therefore properly ordered the statements suppressed because they were the product of a custodial interrogation in which the defendant was not advised of his rights pursuant to Miranda.

Turning to the suppression of the firearm, the Ninth Circuit noted that the Supreme Court determined in United States v. Patane, 542 U.S. 630 (2004) that the physical evidence obtained as a result of a custodial interrogation without Miranda warnings is nevertheless admissible. Consistent with the Patane decision, the Ninth Circuit had long-held that the failure to give Miranda warnings is not “dispositive of whether an individual voluntarily consented to a search.” United States v. Ritter, 752 F.2d 435, 439 (9th Cir. 1985) (citations omitted). The Ninth Circuit therefore held that the District Court erred in ruling that because the Miranda violation resulted in the seizure of the firearm from Mora-Alcaraz’s truck, that violation also required the firearm’s suppression as evidence. Because a Miranda violation does not alone warrant suppression of the physical fruits of the defendant’s inculpatory statements, and because both parties agreed that the appropriate inquiry was whether, looking at the totality of the circumstances, Mora-Alcaraz’s consent to the search of the trunk was voluntary, [4] the Ninth Circuit vacated the District Court’s order suppressing the firearm and remanded for the District Court to resolve the voluntariness issue in the first instance.


Police officers were not entitled to qualified immunity after fatally shooting victim because officers could have simply moved away from slowly moving vehicle to avoid injury.

Villanueva v. California, 2021 U.S. App. LEXIS 2391 (9th Cir. Jan. 28, 2021)

Facts: In July 2016, Sergeant Cleveland and Officer Henderson (“the Officers”) were in plain clothes in an unmarked black sedan on patrol when they observed in a swap meet parking lot a twenty-person “sideshow” event in which drivers perform unlawful maneuvers. The Officers observed a Silverado pickup truck driven by Pedro Villanueva perform or attempt to perform an illegal maneuver. The Officers intended to make a traffic stop, but Villanueva, with passenger Francisco Orozco in the Silverado, headed out of the parking lot and drove away. During the course of the Officers’ pursuit, Villanueva went between 50 and 70 miles per hour on surface streets and ran at least three red lights.

After several minutes, Villanueva turned north on a dead-end street and then turned right onto another dead-end street before stopping. The Officers in pursuit approached the dead-end streets’ intersection. Upon seeing the Silverado stopped, the Officers exited their vehicle, stood near their respective open doors, and drew their firearms. Villanueva attempted to reverse out of the second dead-end street in a three-point turn that resulted in the rear of his vehicle pointing toward the first dead-end street and the front generally facing the Officers, who were approximately 15 to 20 feet away. The Officers then opened fire on the vehicle and shouted a warning of some kind at the same time or within a second of firing. The shots killed Villanueva and injured Orozco. The Silverado then slowly rolled forward, ultimately colliding with the Officers’ car at a very low speed. Viewing the disputed facts in the light most favorable to the plaintiffs, Villanueva’s three-point turn was performed in a controlled manner, and the Silverado was moving very slowly and was not pointed directly at either officer or accelerating when the Officers opened fire.

Villanueva’s parents, on behalf of their son, filed suit pursuant to 42 U.S.C. section 1983, alleging constitutional claims, including excessive force in violation of the Fourth Amendment. The Officers moved for summary judgment, arguing that they were entitled to qualified immunity on the excessive force claims. The District Court denied the Officers’ motion, holding that “there are simply too many disputes of material fact to rule on summary judgment that [the Officers]’s use of deadly force was objectively reasonable,” and that, construing the facts in the light most favorable to the plaintiffs, a reasonable jury could find that the Officers used excessive force in violation of clearly established law. The Officers appealed the denial of qualified immunity.

Held: The Ninth Circuit Court of Appeals explained that “officers are entitled to qualified immunity under Section 1983 unless (1) they violated a federal statutory or constitutional right, and (2) the unlawfulness of their conduct was ‘clearly established at the time.’” District of Columbia v. Wesby, 138 S. Ct. 577, 589 (2018) (citation omitted). Allegations of excessive force during an investigatory stop or arrest of a free citizen are examined under the Fourth Amendment’s prohibition against unreasonable seizures. Graham v. Connor, 490 U.S. 386, 394 (1989) This is an objective inquiry that asks whether an officer’s actions were reasonable in light of the circumstances he confronted. Id., 490 U.S. at 397.

The Court held that taking the facts in the light most favorable to the plaintiffs, after Villanueva stopped his truck following the vehicular pursuit, he cautiously performed a three-point-turn, his truck—which was 15 to 20 feet away from the Officers—was not aimed directly at the Officers and was moving very slowly and was not accelerating when the Officers began shooting. In these circumstances, a reasonable jury could conclude that the Officers used excessive force, because they lacked an objectively reasonable basis to fear for their own safety, as they could simply have stepped back or to the side to avoid being injured.

The Ninth Circuit held that because it found at the summary judgment stage that the car was slow-moving and the Officers could have simply moved away to avoid injury, their use of deadly force was clearly established as unreasonable as of 1996 by Acosta v. City & Cnty. of S. F., 83 F.3d 1143, 1146 (9th Cir. 1996). Thus, the Court concluded that the Officers were not entitled to qualified immunity and accordingly, affirmed the District Court’s order.


Preliminary injunction prohibiting defendants from enforcing public health restrictions against plaintiffs was unwarranted because Regional Stay At Home Order did not implicate the First Amendment.

Midway Venture LLC v. Cnty. of San Diego, 2021 Cal. App. LEXIS 57 (4th Dist. Jan. 22, 2021)

Facts: Beginning in March 2020, the State of California and County of San Diego (“County”) imposed a series of public health restrictions intended to combat the spread of the COVID-19 virus, including a Regional Stay at Home Order (the “Order”) issued on December 3, 2020 by Governor Gavin Newsom which generally prohibited gatherings among members of different households, with some exceptions. As relevant here, the Order did not permit indoor or outdoor dining, limiting restaurants to take-out and delivery service.

Two San Diego businesses that offered live nude adult entertainment as well as restaurant service sought, among other things, a preliminary injunction prohibiting the State and County from enforcing these restrictions against them. The businesses argued that the restrictions on live entertainment violated their First Amendment right to freedom of expression. They were not seeking to open their restaurants without the live entertainment component of their businesses. The trial court issued a preliminary injunction prohibiting the State and County from enforcing the public health restrictions against any business offering restaurant service in San Diego County, subject to safety protocols. The State and County appealed, arguing that the trial court abused its discretion by enjoining their enforcement of restrictions on live entertainment, specifically, because the adult entertainment businesses had not shown a likelihood of prevailing on their claims.

Held: The California Fourth District Court of Appeal observed that although “[n]ude or semi-nude entertainment is expressive activity that falls within the ambit of the First Amendment,”[5] the Court must first consider whether the Order limiting restaurant to take-out and delivery service implicated the First Amendment at all.

The Court of Appeal observed that, as here, Arcara v. Cloud Books, Inc. (1986) 478 U.S. 697 also involved a generally-applicable public health regulation that restricted expressive activity. The Court explained that under Arcara, the First Amendment will apply if “it was conduct with a significant expressive element that drew the legal remedy in the first place” or if the restriction “has the inevitable effect of singling out those engaged in expressive activity.” (Id., at pp. 706–707.) The Fourth District concluded that neither circumstance applied here.

The Court explained that the Order was an all-encompassing set of restrictions on public and private gatherings, prompted by the threat of COVID-19 transmission at such gatherings. There had been no showing that conduct with a significant expressive element, let alone live nude adult entertainment, drew the restrictions in the first place. Similarly, the breadth of the Order demonstrated that singling out expressive activity was not an inevitable effect of its application. The Court explained that business restrictions imposed for other purposes, unrelated to the suppression of expression, were not invalid simply because they incidentally burdened expressive conduct. The operations of the adult entertainment businesses were limited because of restaurant restrictions. Those restaurant restrictions were unrelated to the suppression of speech. The Court therefore found that the Order did not implicate the First Amendment at all under Acara. Concluding that the adult entertainment businesses had not made the required showing that there was some possibility they would prevail on their claims, the Fourth District Court of Appeal accordingly reversed the trial court’s order granting the preliminary injunction.


  1. Factual disputes prevented court’s determination of plaintiff’s First Amendment claim under Pickering balancing test.

Moser v. Las Vegas Metro. Police Dep’t, 984 F.3d 900 (9th Cir. 2021)

Facts: In 2000, Charles Moser joined the Las Vegas Metropolitan Police Department (“Department”), and became a member of the SWAT team in 2006. Moser served as the Assistant Team Leader of his SWAT unit and acted as a sniper. In 2015, someone shot a Department police officer. After seeing news of the shooting suspect’s capture, Moser — while off-duty at home — commented in December 2015 on a friend’s Facebook post linking an article about the shooting by saying that it was a “shame” that the suspect “didn’t have a few holes in him.” An internal investigation commenced after an anonymous tipster alerted the Department’s internal affairs to Moser’s Facebook comment. During his interview with investigators, Moser admitted that his comment was inappropriate, but that he intended to express his frustration that the suspect had “basically ambushed one of our officers” and that “the officer didn’t have a chance to defend himself.” He stated that he had removed his comment by the time of the interview.

Captain Devin Ballard and Deputy Chief Patrick Neville found that Moser’s Facebook comment demonstrated that he had become “a little callous to killing.” They transferred Moser out of SWAT and put him back on patrol with a pay decrease. Moser’s supervisors testified that snipers were held to a higher standard because they worked in difficult and stressful situations. Internal affairs also determined that Moser’s comment violated the Department’s social media policy and found that his Facebook page had information identifying him as a Department sniper. The Labor Management Board denied Moser’s subsequent grievance report and upheld the transfer.

Moser sued the Department, Deputy Chief Neville, and Captain Ballard for First Amendment retaliation, seeking damages under 42 U.S.C. section 1983 and injunctive relief. He contended that his Facebook comment suggested only that the police officer who had been shot should have fired defensive shots, and alleged that his disciplinary transfer was unconstitutional retaliation for his protected speech. The District Court, however, construed Moser’s Facebook comment as advocating unlawful violence, and ruled that the government’s interest in employee discipline outweighed Moser’s First Amendment right under the balancing test for speech by government employees, set forth in Pickering v. Bd. of Ed. of Twp. High Sch. Dist., 391 U.S. 563 (1968). The District Court granted summary judgment for the Department. Moser appealed.

Held: The Ninth Circuit Court of Appeals explained that the United States Supreme Court, in Pickering, established a framework to balance the free speech rights of government employees with the government’s interest in avoiding disruption and maintaining workforce discipline. Under the Pickering framework, the plaintiff first must establish that “(1) []he spoke on a matter of public concern; (2) []he spoke as a private citizen rather than a public employee; and (3) the relevant speech was a substantial or motivating factor in the adverse employment action.” Barone v. City of Springfield, Or., 902 F.3d 1091, 1098 (9th Cir. 2018). If the plaintiff establishes this three-factor prima facie case, the burden then shifts to the government to show “that (4) it had an adequate justification for treating [its employee] differently than other members of the general public; or (5) it would have taken the adverse employment action even absent the protected speech.” Id. If the government does not meet its burden, then the First Amendment protects the plaintiff’s speech as a matter of law.

The Court of Appeals first determined that Moser had established a prima facie case based on the first three components of the Pickering test. The Court next considered whether the Department showed that it had an adequate justification for treating Moser differently than other members of the general public. The Court observed that the Pickering balancing test recognizes that a government employer has “broader discretion to restrict speech when it acts in its role as employer, but the restrictions it imposes must be directed at speech that has some potential to affect the entity’s operations.” Eng v. Cooley, 552 F.3d 1062, 1071 (9th Cir. 2009) (quotation marks and citation omitted). Even though the government generally cannot consider the content of the speech under the First Amendment, the Ninth Circuit noted that courts have carved a narrow exception for speech by government employees. In the limited context of the Pickering balancing test, courts may consider the content of that speech to determine how much weight to give the government employee’s First Amendment interests.[6] Courts have thus implicitly applied a sliding scale in which the “state’s burden in justifying a particular discharge [or adverse employment action] varies depending upon the nature of the employee’s expression.”[7]

The Ninth Circuit reversed the District Court’s summary judgment in the Department’s favor and remanded. The Court of Appeals held that the District Court erred in granting summary judgment for the government because there was a factual dispute about the objective meaning of Moser’s comment: was it a hyperbolic political statement lamenting police officers being struck down in the line of duty, or, as the Department interpreted, a call for unlawful violence against suspects? The Ninth Circuit stated that another factual dispute existed over whether Moser’s comment would have likely caused disruption in the police department. The Ninth Circuit declared that these factual disputes had to be resolved before the District Court could weigh the competing considerations of Moser’s First Amendment rights against the government interest in workforce discipline under the Pickering balancing test.

For a more detailed discussion of this case, please see Client Alert Vol. 36, No. 3, available at www.jones-mayer.com.

  1. When rotational employee takes continuous leave, both his on and off weeks count as “workweeks of leave” for purposes of Family and Medical Leave Act.

Scalia v. Alaska, 2021 U.S. App. LEXIS 1152 (9th Cir. Jan. 15, 2021)

Facts: The Family and Medical Leave Act of 1993 (“FMLA”) grants eligible employees “a total of 12 workweeks of leave during any 12-month period” to attend to qualifying family and medical needs, such as bonding with a new child, to care for a family member with a serious health condition, or to attend to the employee’s own serious health condition. 29 U.S.C. section 2612(a)(1). The Alaska Marine Highway System (“AMHS”) employs both “traditional” employees — those who work a regular 40-hour week, typically five days on followed by two days off, and “rotational” employees — those who work a regular schedule of seven days on followed by seven days off. Both types of employees generally work the same number of hours per year, and are generally paid the same amount. As to types of FMLA leave, an employee may take either “continuous” leave or “intermittent” leave. Continuous leave is leave taken in one continuous block of time, up to the maximum of 12-consecutive workweeks.

The Secretary of Labor sued the State of Alaska, alleging that the State miscalculated the amount of FMLA leave that AMHS rotational employees who took continuous leave were entitled to take. In Alaska’s view, a rotational employee working a “one week on, one week off” schedule who takes 12 workweeks of continuous leave must return to work 12 weeks later because both the “on” and “off” weeks count against the employee’s FMLA leave entitlement. In the Secretary’s view, the employee should return to work 24 weeks later, because a rotational employee’s off weeks cannot be counted as “workweeks of leave” under Section 2612(a)(1).

The District Court granted summary judgment in favor of the Secretary of Labor, holding that the term “workweek” refers to “time that an employee is actually required to be at work.” The District Court reasoned that since rotational employees are not required to be at work during their off weeks, those weeks cannot be counted against an employee’s FMLA leave entitlement. The State appealed.

Held: The Ninth Circuit Court of Appeals stated that the issue here was the meaning of “workweek” as applied to employees who work a rotational schedule. Congress did not define the term “workweek” when it enacted the FMLA. However, Congress had previously used the same term in the Fair Labor Standards Act (29 U.S.C. section 201 et seq.; “FLSA”), enacted in 1938. The Court noted that the term “workweek” had acquired an established meaning under the FLSA[8] decades before Congress enacted the FMLA, and Congress deliberately chose to use that term as opposed to the unmodified term “week.” Both the FMLA and the FLSA address the same general subject matter, in that both statutes afford employees certain minimum protections in the workplace. In both statutes, Congress used the term “workweek” for the same purpose: to provide a fixed, pre-established period of time against which an employee’s entitlement to statutory benefits can be measured, while at the same time affording employers flexibility to establish that period on a basis other than a Monday-through-Sunday calendar week.

Given the similarity in general subject matter addressed by the two statutes, and the similar function the term “workweek” serves in both, the Ninth Circuit held that Congress intended to adopt the definition of “workweek” contained in Fair Labor Standards Act regulation 29 C.F.R. section 778.105 when it granted employees “a total of 12 workweeks of leave” under the FMLA. The Court stated that this definition does not revolve around an individual employee’s own work schedule, but is simply a week-long period, designated in advance by the employer, during which the employer is in operation.

The Ninth Circuit held that the Secretary’s reading of “workweek” conflicted with Congress’s understanding of how FMLA leave would be calculated. The Court further held that when a rotational employee takes continuous leave, both his on and off weeks count as “workweeks of leave” under Section 2612(a)(1). The Court thus concluded that Alaska could insist that rotational employees who took 12 workweeks of continuous leave return to work 12 weeks later, as Alaska’s method of calculating rotational employees’ continuous leave did not violate the FMLA. Accordingly, the Court reversed the District Court’s summary judgment in favor of the Secretary of Labor, and remanded with instructions to enter summary judgment in Alaska’s favor.


Penal Code section 11362.1(a) partially decriminalizes possession of cannabis but does not amend laws governing the possession of cannabis within Department of Corrections and Rehabilitation.

People v. Taylor, 2021 Cal. App. LEXIS 58 (6th Dist. Jan. 22, 2021)

Facts: Proposition 64, the “Control, Regulate and Tax Adult Use of Marijuana Act” was approved by California voters in 2016. Health and Safety Code section 11362.1 was added by Proposition 64. Subject to specified statutory exceptions, Section 11362.1(a)) declares it lawful for persons at least 21 years old to possess not more than 28.5 grams of cannabis not in the form of concentrated cannabis. Proposition 64 also added Section 11361.8, which establishes a postjudgment procedure for the filing of a petition for recall or dismissal of sentence when “[a] person currently serving a sentence for a conviction … would not have been guilty of an offense, or … would have been guilty of a lesser offense under the Control, Regulate and Tax Adult Use of Marijuana Act had that act been in effect at the time of the offense.” (Section 11361.8(a)).)

Alonzo Lee Taylor moved to dismiss a 1999 felony conviction of violating Penal Code section 4573.6 (possession of controlled substance in prison) pursuant to Health and Safety Code section 11361.8. Defense counsel subsequently filed a notice of motion and motion for resentencing the conviction pursuant to Section 11361.8. The People opposed, arguing that possession of marijuana in prison continued to be public offenses after Proposition 64. The trial court denied Taylor’s motions.

Taylor appealed, arguing that subdivision (d) of Section 11362.45, which was added by Proposition 64, stated an exception to Section 11362.1(a) for “smoking or ingesting” marijuana in a state prison facility but not for possession of marijuana in prison. He contended that, consequently, under Section 11362.1(a), it is generally lawful for a person who is at least 21 years of age to possess 28.5 grams or less of marijuana, whether in the community or in prison. Taylor asserted that he would not have been guilty for the possession crime had Proposition 64 been in effect at the time of his offenses.

Held: The Sixth District Court of Appeal considered whether after Proposition 64, possession of 28.5 grams or less of marijuana or cannabis in prison or jail is unlawful under Penal Code section 4573.6. The Sixth District noted that California Courts of Appeal have split on the issue, and that the California Supreme Court has granted review of several of these cases in order to resolve the issue.

The Sixth District observed that under Penal Code section 4573.6, a “person who knowingly has in his or her possession in any state prison … or in any county, city and county, or city jail … , any controlled substances, the possession of which is prohibited by Division 10 (commencing with [s]ection 11000) of the Health and Safety Code, … without being authorized to so possess the same … is guilty of a felony….” Cannabis is, and marijuana previously was, defined as a Schedule I controlled substance under Division 10.

The Court noted that courts consider statutory “language in its ‘broader statutory context[,]’”[9] and that “[i]dentical language appearing in separate provisions dealing with the same subject matter should be accorded the same interpretation. [Citation.]”[10] The Court explained that because both Penal Code sections 4573.6 and 4573.9 use the same phrase “any controlled substance, the possession of which is prohibited by Division 10 (commencing with [s]ection 11000) of the Health and Safety Code,” and because both sections provide for similar exceptions based on the rules of the institution, the Division 10 phrase must be construed to have the same meaning in both statutes. Based on its analysis of the entire statutory scheme for these provisions, the Court concluded that the phrase “any controlled substance, the possession of which is prohibited by Division 10 (commencing with [s]ection 11000) of the Health and Safety Code” in both Penal Code sections refers to a general category of controlled substances, rather than a particular instance of possession, and encompasses those controlled substances, the possession of which is in any way prohibited by Division 10. The Court explained that Taylor’s alternate view would result in absurd consequences that could not have been intended by the Legislature which had “long viewed illegal drugs as a problem in penal institutions.” (People v. Gastello (2010) 49 Cal.4th 395, 402).

Moreover, the Sixth District had previously determined in People v. Herrera (2020) 52 Cal.App.5th 982[11] that “Proposition 64 did not decriminalize the possession of cannabis in a penal institution” and that the “defendant was properly convicted under Penal Code section 4573.6 for possession of cannabis in jail” after Proposition 64. (Herrera, supra, at p. 987.) The Court here confirmed its observation stated earlier “in order for [S]ection 11362.45(d), which carves out ‘[l]aws pertaining to smoking or ingesting’ cannabis in prison or jail, to have any meaning in view of the preexisting statutory scheme, [S]ection 11362.45(d) must be construed as having a broader application than to just a law that expressly prohibits the smoking or ingesting of cannabis in prison or jail, as no such law exists.” (Id. at p. 992.) Therefore, the Court of Appeal determined that under the dictates of Section 11362.45(d), although Section 11362.1(a) partially decriminalizes possession of cannabis, it does not “amend, repeal, affect, restrict, or preempt” laws governing the possession of cannabis “on the grounds of, or within, any facility or institution under the jurisdiction of the Department of Corrections and Rehabilitation or the Division of Juvenile Justice, or on the grounds of, or within, any other facility or institution referenced in [s]ection 4573 of the Penal Code.” (Section 11362.45(d).)

The Sixth District Court of Appeal thus held that Taylor was not entitled to relief pursuant to Section 11361.8, and accordingly affirmed the trial court’s order denying his motions pursuant to that section. 


  1. District Court reasonably concluded that use of Facebook photo during identification procedure was not so suggestive that it rendered witness’s identification unreliable.

United States v. Bruce, 984 F.3d 884 (9th Cir. 2021)

Facts: In December 2015, Thomas Jones and his wife were on their way to visit an inmate at the United States Penitentiary in Atwater, California (“Atwater”) when they were stopped at a checkpoint by guards conducting random car searches. Officers found four vacuum-packed bags of marijuana, a package of heroin, and three marijuana cigarettes. Jones agreed to cooperate with investigators in order to avoid incarceration, and told them that he and his wife had had developed a relationship with an inmate named Devonne Randolph, and that they agreed to receive packages and cash for Randolph. Jones also reported receiving transfers of cash from people associated with other Atwater inmates. According to Jones, Randolph gave him a telephone number to send text messages to someone Randolph referred to as “Officer Johnson” when packages arrived, and that Officer Johnson would deliver the packages to Randolph in prison. Jones admitted to making deliveries in September and November 2015 to Officer Johnson in a parking lot near Atwater. Jones recounted entering Officer Johnson’s black Jeep Cherokee, handing Johnson the packages, and leaving. Jones described Officer Johnson as “Hispanic looking” with dark curly hair, wearing a Pittsburgh Steelers hat and having a raspy voice, a heavyset build, and dark skin. One of the officers recalled seeing another correctional officer wearing a Steelers hat at an off-duty event. When Jones was shown a Facebook photo from the event that included a correctional officer named David Bruce wearing a Steelers hat and one other person who was not, Jones immediately identified Bruce as Officer Johnson.

Bruce was convicted for conspiracy, attempt to possess with intent to distribute heroin or marijuana, and bribery for accepting a bribe as a public official. Bruce appealed, arguing that the District Court erred by admitting evidence that Jones identified Bruce.

Held: The Ninth Circuit Court of Appeals explained that to review the constitutionality of a pretrial identification procedure, courts consider whether the “procedure was so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification.” Simmons v. United States, 390 U.S. 377, 384 (1968). The Court added that it would examine the totality of the circumstances to determine whether an identification procedure was unduly suggestive. United States v. Bagley, 772 F.2d 482, 492 (9th Cir. 1985)

Bruce argued that Jones’s identification was unreliable because Jones identified Bruce under circumstances that were impermissibly suggestive. Specifically, after Jones described Officer Johnson wearing a Steelers’ hat, Jones was shown a Facebook photo in which Bruce was the only one wearing a Steelers’ hat, and he selected Bruce from the photo.

The Ninth Circuit found that the District Court reasonably concluded that the use of a Facebook photo of Bruce was not so suggestive that it rendered Jones’ identification unreliable because, among other things, Jones had met with Bruce on two occasions and voluntarily got into his car both times, Jones had identified Bruce from the photo without hesitation, Jones was certain of the identification at the time he made it in 2015, and Jones explained to the jury that before he was shown the photo, he accurately described details concerning Bruce’s beard, hair color, body type, clothing, and vehicle. Moreover, the Court found that even if the Facebook photo was suggestive, the Court’s consideration of the totality of the circumstances led it to find that the District Court did not err by admitting this identification evidence. The Ninth Circuit Court of Appeals accordingly affirmed the District Court’s orders admitting identification evidence.

  1. Senate Bill No. 1437’s amendment of the felony murder rule does not apply to a defendant when the decedent is a peace officer.

People v. Hernandez, 2021 Cal. App. LEXIS 55 (2nd Dist. Jan. 22, 2021) \

Facts: In June 1988, Alberto Hernandez and his friend Bobby Steele broke into an electronics store and activated a burglar alarm. Officers of the Los Angeles Police Department, including Officer James C. Beyea and his partner Officer Ignacio Gonzalez, responded to the alarm. After initially finding no one at the store, Officer Beyea and Officer Gonzalez went back to the store after the store’s alarm sounded again. After the officers approached the store, Officer Gonzalez saw Steele and Hernandez flee. Officer Beyea was dropped off to pursue on foot, while Officer Gonzalez drove around the block to try to locate the suspects. Unsuccessful, Officer Gonzalez returned to the drop-off point and saw Steele struggling with Officer Beyea. Officer Gonzalez then saw Steele raise his arm and point it at Officer Beyea. Officer Gonzalez heard two gunshots, which killed Officer Beyea. Officers later found Hernandez hiding nearby. Officers eventually found Steele hiding elsewhere, and killed him during a confrontation.

Interviewed by police detectives, Hernandez admitted he was involved in the burglary. He stated and that he and Steele fled the electronics store when they heard helicopters. Hernandez stated that he followed Steele as Steele climbed over a wall, but that when he saw a police officer chase Steele on the other side, Hernandez ran in a different direction and hid. Hernandez said that he did not see the officer confront Steele, but that, after he heard gunshots, he saw Steele run past him. Hernandez remained hidden in the bushes until police found him. Hernandez told police Steele did not have a gun. A jury convicted Hernandez of felony murder and commercial burglary. Hernandez was ultimately sentenced to 15 years to life on the murder conviction.

Senate Bill No. 1437 (“SB 1437”), effective January 1, 2019, amended the felony murder rule by amending Penal Code sections 188 and 189. SB 1437, through new Section 1170.95, also authorized an individual convicted of felony murder to petition the sentencing court to vacate the conviction and to be resentenced on any remaining counts if the individual could not have been convicted of murder under changes SB 1437 made to the definition of murder.

Hernandez petitioned for relief under Section 1170.95. The court ruled Hernandez was not entitled to relief under Section 1170.95 because he could still be convicted of first degree murder under Section 189(f). Hernandez appealed the order denying his petition, .

Held: The California Second District Court of Appeal observed that Section 188, subdivision (a)(3) provides that, except as stated in Section 189, subdivision (e), to be convicted of murder a principal in a crime must act with malice and that malice may not be imputed based solely on participation in a crime. Section 189, subdivision (e)’s exception to the malice requirement for murder declares in part that an individual can be liable for first degree felony murder if the person was a major participant in the underlying felony and acted with reckless indifference to human life. However, Section 189(f) provides: “Subdivision (e) does not apply to a defendant when the victim is a peace officer who was killed while in the course of the peace officer’s duties, where the defendant knew or reasonably should have known that the victim was a peace officer engaged in the performance of the peace officer’s duties.” The Court stated, “The problem is that, if section 189, subdivision (e), ‘does not apply,’ then arguably section 188, subdivision (a)(3), does apply, which would mean the prosecution must prove malice when the victim of a felony murder is a peace officer, but not when the victim is someone other than a peace officer. Which does not make sense.”

Based on what the Court called this “apparent legislative misstep,” Hernandez contended on appeal that the lower court erred in ruling that Section 189(f), like the three circumstances in Section 189(e), is an exception to Section 188(a)(3), and in ruling that the prosecution does not need to prove the defendant acted with malice to convict the defendant of the murder of a peace officer under the felony murder doctrine.

The Second District explained that Taylor’s proposed interpretation would lead to an absurd result because it would make it no easier for prosecutors to convict defendants of murder where the victim is a peace officer than it would be where the victim is not a peace officer. The Court explained that it “must select the construction that comports most closely with the apparent intent of the Legislature, with a view to promoting rather than defeating the general purpose of the statute, and avoid an interpretation that would lead to absurd consequences.” (People v. Jenkins (1995) 10 Cal.4th 234, 246.) The Second District therefore concluded that Section 189(f) is an exception to the malice requirement of Section 188(a)(3); and found that the trial court correctly ruled that Section 189(f) does not require the prosecution to prove the defendant acted with malice where the victim is a peace officer engaged in the course of his or her duties and the defendant knows (or reasonably should know) these facts. The Court of Appeal accordingly affirmed the trial court’s order denying Taylor’s petition for resentencing.

[1] See United States v. Kow, 58 F.3d 423, 428 (9th Cir. 1995).

[2] Miranda v. Arizona, 384 U.S. 436 (1966).

[3] 538 U.S. 760 (2003).

[4] The Ninth Circuit added that the proper analysis to assess whether consent to a search was voluntary, looks to all the circumstances, including: “(1) whether defendant was in custody; (2) whether the arresting officers have their guns drawn; (3) whether Miranda warnings have been given; (4) whether the defendant was told he has a right not to consent; and (5) whether defendant was told a search warrant could be obtained.” United States v. Johnson, 875 F.3d 1265, 1276-77 (9th Cir. 2017).

[5] See Krontz v. City of San Diego, 136 Cal.App.4th 1126, 1132 (4th Dist. 2006); accord, City of Erie v. Pap’s A.M., 529 U.S. 277, 289 (2000).

[6] See Connick v. Myers, 461 U.S. 138, 146-47 (1983).

[7] Id. at 150.

[8] “An employee’s workweek is a fixed and regularly recurring period of 168 hours—seven consecutive 24-hour periods. It need not coincide with the calendar week but may begin on any day and at any hour of the day. For purposes of computing pay due under the Fair Labor Standards Act, a single workweek may be established for a plant or other establishment as a whole or different workweeks may be established for different employees [*9] or groups of employees. Once the beginning time of an employee’s workweek is established, it remains fixed regardless of the schedule of hours worked by him.” 29 C.F.R. section 778.105 (emphasis added).

[9] ZB, N.A. v. Superior Court, 8 Cal.5th 175, 189 (2019).

[10] Walker v. Superior Court, 47 Cal.3d 112, 132 (1988).

[11] Supreme Court review granted Oct. 14, 2020, S264339.