Courtesy of James R. Touchstone, Esq.


  1. District Court order in immigration case denies, in part, and grants, in part, the federal government’s motion for preliminary injunction.

United States v. California, 2018 U.S. Dist. LEXIS 112055 (E.D. Cal. July 5, 2018)

Facts/Background: In an immigration enforcement matter, the United States of America (“United States” or “Plaintiff”) filed a motion for preliminary injunction seeking to enjoin enforcement of certain provisions of three laws enacted by the State of California (“Defendant” or “California”) through Assembly Bill 103 (“AB 103”), Assembly Bill 450 (“AB 450”) and Senate Bill 54 (“SB 54”). The California Eastern District Court considered the motion.

United States sought to enjoin California’s Gov. Code section 12532 (as added by AB 103); Gov. Code sections 7285.1 and 7285.2 and Lab. Code sections 90.2 and 1019.2 as applied to private employers only (as added by AB 450); and Gov. Code Sections 7284.6(a)(1)(C), 7284.6(a)(1)(D), and 7284.6(a)(4) (as added by SB 54). United States contended that federal law preempted these California provisions under the Supremacy Clause[1] of the United States Constitution because California lacked the authority to “intentionally interfere” in the area of immigration enforcement, and because the provisions were an obstacle to congressional objectives.

The California Eastern District Court explained that the Supremacy Clause proclaims that the United States “‘Constitution, and the Laws of the United States which shall be made in Pursuance thereof . . . shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby.’” The Court said that the Tenth Amendment limits the United States to powers enumerated in the Constitution, reserving the remaining powers to the States. The Court observed that although the United States clearly had broad power over immigration and alien status issues, the Supreme Court had never held that any state law dealing with aliens was therefore “per se pre-empted.”

The Court noted that Congress could preempt state law, even in areas traditionally regulated by the States, but there was a strong presumption against preemption in such situations. If a state law was to be considered an obstacle to congressional objectives, and thereby subject to preemption by a federal statutory scheme, such objectives must be “unmistakably clear”[2] in the language of the federal statute. A second requirement for this “obstacle preemption” to apply was that the conflict between the state law and the federal scheme must be such a direct and clear one that the two acts could not be reconciled. Here, United States claimed that the Immigration and Nationality Act[3] (“INA”), the federal statutory scheme for the regulation of immigration and naturalization, preempted the challenged California provisions.

The Eastern District Court added that the Supremacy Clause also gave rise to the doctrine of intergovernmental immunity, whereby a State could not regulate the United States directly or discriminate against the Federal Government or those with whom it dealt. The requirement for a state law to be invalidated due to intergovernmental immunity was a showing that a state regulation burdened the Federal Government (or those dealing with the Federal Government) more so than it did others.

The Court also noted that the Tenth Amendment precluded Congress from issuing direct orders to the States. Its “anticommandeering” doctrine prevents Congress from directly compelling States to enact a regulation or enforce federal regulatory programs, conscript state officers for such purpose, or prevent a State from enacting laws. The Court added that “[e]ven requiring state officers to perform discrete, ministerial tasks violates the doctrine.”

Held: The motion for a preliminary injunction was denied in part and granted in part by the California Eastern District Court. In reaching its decision, the Court considered each challenged California provision in turn to evaluate the likelihood that United States’ motion for injunction would succeed on the merits.

Assembly Bill 103

The Court observed that Gov. Code section 12532, as added by AB 103, directed the California Attorney General to review and report on county, local, and private locked detention facilities in which noncitizens were housed or detained for purposes of civil immigration proceedings in California. The Attorney General was to consider conditions of their confinement, the standard of care and due process provided to them. The Attorney General was to provide a comprehensive report to state government and the public on these matters.

Plaintiff asserted that these requirements interfered with the federal authority in immigrant detention. The Court disagreed, finding no suggestion in the INA that Congress intended States to have no oversight for operation of detention facilities within their borders. The Court acknowledged the California Attorney General’s broad constitutional powers to enforce state laws and conduct investigations relating to subjects under his jurisdiction. The Court noted that detention facility contracts actually addressed compliance with state and local law, suggesting that California retained some authority over the detention facilities. The Court thus found AB 103 did not present any obstacle to the federal government’s immigration enforcement or detention scheme. Nor did intergovernmental immunity attach here because there was no evidence of better treatment of detention facilities other than the federal contractors. The Court thus concluded United States was not likely to succeed on the merits for this provision and denied the motion for preliminary injunction as to AB 103.

Assembly Bill 450

The Court next addressed AB 450’s various requirements on public and private employers with respect to immigration worksite enforcement actions. The Court explained that AB 450 prevented employers from providing voluntary consent to an immigration enforcement agent to enter nonpublic areas of a place of labor or to access the employer’s employee records under Gov. Code sections 7285.1 and 7285.2. It required employers to provide notice to their employees of any impending I-9 (or other employment record) inspection within 72 hours of receiving notice of that inspection under Lab. Code section 90.2. Finally, AB 450 prohibited employers from reverifying the employment eligibility of current employees when not required by federal law under Lab. Code section 1019.2.

The United States challenged AB 450 as applied to private employers only, arguing that these additions to state law were an obstacle to immigration enforcement objectives under the Immigration Reform and Control Act (“IRCA”) and the INA. The IRCA is a comprehensive framework for preventing illegal aliens from employment.

The Court found that intergovernmental immunity applied to AB 450’s consent prohibitions because Sections 7285.1 and 7285.2 improperly targeted the operations of federal immigration enforcement in imposing fines on those employers who acquiesced by granting entry or employee records access in a federal investigation but not on those who did not. The Court thus concluded that United States was likely to succeed on the merits for these two sections and granted the preliminary injunction applicable to them.

The Court found that AB 450’s employer-to-employee notice requirement did not lead to either obstacle preemption or intergovernmental immunity issues. The relevant IRCA provisions were directed at employers, so there was no suggestion in federal law that Congress had intended to withhold inspection knowledge from employees. Nor did intergovernmental immunity arise in this context. Thus, the Plaintiff’s Supremacy Clause claim failed as to Section 90.2, and the preliminary injunction corresponding to this subsection of AB 450 was denied.

Regarding AB 450’s reverification requirement, the Court explained that under IRCA, an employer faced liability for continuing to employ an immigrant in the United States knowing that the immigrant was (or had become) unauthorized with respect to such employment. Congressional intent was to tie liability to an employer’s knowledge, but California’s Lab. Code section 1019.2 frustrated that purpose by prohibiting reverification of employee eligibility. The Court therefore concluded that Plaintiff’s Supremacy Clause claim was likely to succeed against Section 1019.2.

Senate Bill 54

SB 54 added several subsections to California’s Government Code that prohibited state law enforcement agencies from sharing information pertaining to immigration enforcement, including a person’s release date and home or work addresses, unless that information was publically available. The United States identified 8 U.S.C. section 1373 as the source of the most direct conflict with these California subsections. Section 1373(a) bars States from prohibiting, or in any way restricting, “any government entity or official from sending to, or receiving from, the Immigration and Naturalization Service information regarding the citizenship or immigration status, lawful or unlawful, of any individual.” United States argued that “information regarding the citizenship or immigration status” included release dates and home and work addresses, and so SB 54’s information sharing prohibitions violated the Supremacy Clause. The Court determined that the plain meaning of Section 1373 included only immigration status information, not the release date or address information, and so found no direct conflict between SB 54 and Section 1373.

United States also contended that the structure of the INA required States to allow a basic level of information sharing, and that SB 54 undermined the system Congress designed. The Court disagreed, explaining that California’s choice not to assist federal immigration enforcement was not an “obstacle” to that enforcement; California merely specified state law enforcement activity. Therefore, preemption was not appropriate. The Court added that there was no “clear and manifest” congressional purpose to supersede state police powers. The Court further found that a congressional mandate prohibiting states from restricting their law enforcement agencies’ involvement in immigration enforcement activities would probably violate the Tenth Amendment.

The Court accordingly found that United States was not likely to succeed on the merits of its SB 54 claim, and denied its preliminary injunction motion as to SB 54.

In sum, the Eastern District Court concluded that AB 103, SB 54, and the employee notice provision of AB 450 were permissible exercises of California’s sovereign power. With respect to the other three challenged provisions of AB 450, the Court found that California had impermissibly infringed on the sovereignty of the United States. Plaintiff’s motion for preliminary injunction was therefore denied in part and granted in part.

Motion to Dismiss Complaint by California

In related motion proceedings, the Eastern District Court of California reviewed defendant California’s motion to dismiss the complaint in its entirety with plaintiff United States, naturally, opposing. Consistent with its ruling on the motion for a preliminary injunction, the Court granted California’s motion to dismiss the Supremacy Clause claims against AB 103, SB 54, and California Labor Code Section 90.2 (added by AB 450) without leave to amend the Complaint. The Court denied California’s motion to dismiss the Supremacy Clause claim with respect to California Government Code Sections 7285.1 and 7285.2 and California Labor Code Section 1019.2 (added by AB 450).

For a more detailed discussion of this case, please see Client Alert Vol. 33, No. 21, available at www.jones-mayer.com.

  1. Officers had reasonable suspicion to believe that suspect was engaged in criminal activity under the totality of the circumstances.

United States v. Luckett, 2018 U.S. App. LEXIS 18456 (9th Cir. July 6, 2018)

Facts: In March 2016, San Francisco Police Department officers Michael Cunnie and Steve Orengo were on patrol in a marked police car near Turk and Leavenworth Streets in San Francisco. Having made dozens of narcotics arrests in the location, Officer Cunnie considered it to be a high crime area. Cunnie saw Darrell Luckett, whom Cunnie knew from “multiple Police interactions.” Cunnie also knew that Luckett was on probation, and was aware of Luckett’s criminal history.

In March 2013, Luckett had been arrested on charges of domestic violence, aggravated assault, and resisting arrest. As a result of the incident, in August 2013, Luckett pleaded guilty to robbery and was sentenced to three years of probation. Since that incident, Luckett had been arrested on repeated first and second degree burglary charges, spouse or cohabitant injury charges, assault with a deadly weapon charges, and battery on a police officer. Luckett was not convicted on any of those charges. However, in light of those arrests, Luckett had his terms of probation altered four times.

Officer Cunnie had made over a hundred arrests in the area since April 2015. He first encountered Luckett in the summer of 2015 and learned then that Luckett was on probation with a suspicionless-search condition. Cunnie had also reviewed Luckett’s criminal history at that time, and remembered that Luckett had a large number of convictions and had been arrested for carrying a concealed weapon. Cunnie had conducted probation searches of Luckett at least four times before, and had never found Luckett uncooperative, evasive, or jumpy. Cunnie had found traces of heroin residue in Luckett’s possession once or twice, although the amounts did not “justify” arrest.

Cunnie had often seen Luckett “loitering” near Turk and Leavenworth. According to Cunnie, that specific area is “infamous” for its narcotics trade and is referred to as “Pill Hill,” as well as being known for a high degree of violent crimes, including crimes involving firearms.

When Cunnie and Luckett made eye contact, Luckett suddenly stopped walking, turned around, walked in the other direction at a faster rate than before, and turned into a liquor store. Based on these actions, Cunnie believed Luckett had entered the store in an attempt to evade police contact or dispose of contraband. The officers drove around the block and, as they came back to the intersection of Turk and Leavenworth, they saw Luckett walking on Turk Street and pulled their vehicle up alongside him.

Cunnie reported that as Luckett noticed the officers’ car, he began to walk faster, and twisted the right side of his body away from the officers “as though he was trying to conceal the right side of his body in order to hide something.” Based on his training and Luckett’s behavior, Cunnie suspected that Luckett possessed contraband. Cunnie asked Luckett “what he was up to” and Luckett responded that he was on his way to the store. When Cunnie responded that he had just seen Luckett leave a store, Luckett began walking at a faster rate of speed. Cunnie asked Luckett to stop walking because he had to talk with him, but Luckett continued to walk away.

The officers exited the car and Cunnie informed Luckett that he was being detained. Luckett continued to walk away and Cunnie grabbed him by the arm. Luckett was told to place his hands on his head so he could be searched for weapons. Luckett began to raise his hands but as Cunnie reached toward Luckett’s waistline, Luckett pulled his arms down, began to crouch, and pulled away from the officers’ grasps. The officers, fearing he might be reaching for a gun, pushed Luckett to the ground, and when Luckett raised himself up on his hands, Orengo used a forearm strike to force Luckett back to the ground. Luckett was handcuffed, although still struggling. A search of Luckett disclosed that Luckett was carrying a pistol in a black canvas bag under his sweatshirt. Luckett was arrested and charged with possession of a loaded firearm and resisting arrest.

Luckett moved to suppress the evidence discovered during the search and seizure. The District Court denied his motion. Luckett appealed.

Held: The Ninth Circuit Court of Appeals affirmed because police had reasonable suspicion under the totality of the circumstances that Luckett was engaged in criminal conduct.

Luckett contended that officers lacked reasonable suspicion of criminal activity in violation of the Fourth Amendment when they stopped him. The District Court had found that the police officers involved had reasonable suspicion that Luckett was engaged in criminal activity based on a combination of three factors: (1) Luckett was in a high-crime area at the time of the stop; (2) one officer’s knowledge of Luckett’s criminal background; and (3) Luckett’s nervous and evasive behavior.

The Ninth Circuit Court of Appeals initially explained that courts must look at the “totality of the circumstances” of each case to see whether the detaining officer has a “particularized and objective basis” for suspecting legal wrongdoing.[4] Although an individual observation viewed in isolation could have an innocent explanation, the evaluation of reasonable suspicion could not be “done in the abstract by divorcing factors from their context in the stop at issue.”[5] The Court noted that its de novo review of the motion to suppress and reasonable suspicion issue required reviewing findings of fact only for “clear error” and also required that it must “give due weight to inferences drawn from those facts by resident judges and local law enforcement officers.”[6]

For the first factor argued by Luckett, the Court of Appeals found the District Court committed no clear error in finding that the area was a high-crime one because Luckett provided “insufficiently granular” evidence to counter the government’s specific evidence showing that the area was a high-crime area.

Considering the second factor above, the Court found that an officer’s knowledge of Luckett’s criminal history was part of the totality of circumstances that officers could use in their reasonable suspicion assessment, though the Court acknowledged that criminal history alone was insufficient to establish reasonable suspicion. Moreover, the Court found that it was reasonable for an officer to suspect that an illegal drug dealer was armed. Further, one officer knew that Luckett had multiple criminal convictions, including one arrest for carrying a loaded firearm. The other two factors added to that officer’s suspicion. Given the area and Luckett’s nervous behavior, the Ninth Circuit found that the District Court did not clearly err in deciding Luckett’s criminal past was validly included in the reasonable suspicion assessment.

Finally, the Ninth Circuit deferred to the inferences made by the officer on the scene who had several prior interactions with Luckett that Luckett was acting atypically nervous and evasive. The Court thus found that Luckett’s behavior could be considered part of the totality of the circumstances.

The Court acknowledged that each of the above three factors, standing alone, may not have been sufficient to comprise reasonable suspicion. However, the Court concluded that taken together they provided a “particularized and objective basis” for the officers’ reasonable suspicion. The Court accordingly affirmed the District Court’s denial of Luckett’s motion to suppress.

For a more detailed discussion of this case, please see Client Alert Vol. 33, No. 24, available at www.jones-mayer.com.

  1. Plaintiff entitled to new trial where substantial evidence shows jail officials not entitled to deference by jury on conditions of confinement and excessive search claims.

Shorter v. Baca, 2018 U.S. App. LEXIS 19491 (9th Cir. July 16, 2018)

Facts: Lecia Shorter was a pretrial detainee at Los Angeles County’s (“County”) Century Regional Detention Facility (“CRDF”), an all-women’s jail, from November 15 to December 17, 2011. When she arrived at the jail, a social worker diagnosed her as suffering from a mood disorder and placed Shorter in the jail’s high-observation housing (“HOH”) unit for mentally ill women.

HOH inmates had more restrictions than the general inmate population, and were monitored by staff every 15 minutes to prevent suicide and other harmful behaviors. HOH inmates were handcuffed whenever outside of their cells, except when taking showers. The Department of Justice (“DOJ”) determined in its later investigation of County jail treatment of mentally ill inmates that the excessive use of shackles on female HOH inmates was counterproductive to women’s physical and mental health, and led to violations of the detainees’ constitutional rights.

After her release, Shorter filed a 42 U.S.C. section 1983 action, challenging several conditions of confinement, inter alia. After the District Court denied County’s summary judgment motions on all the confinement condition claims, the case proceeded to a jury trial before a magistrate judge.

At trial, Shorter presented evidence that the County, tasked with supervising high-observation housing for mentally ill women, had a policy of shackling the women in HOH to steel tables in the middle of an indoor recreation room as their sole form of recreation. Shorter also presented evidence that jail officials conducting visual body cavity searches routinely left noncompliant detainees naked and chained to their cell doors, for hours at a time without access to food, water, or a toilet. Furthermore, Shorter presented the jail’s daily logs during her pretrial detention, which revealed that Shorter was deprived of meals, showers, and recreation partly because of overcrowding and understaffing at CRDF.

The magistrate judge, relying on jury instructions provided by the Ninth Circuit, instructed the jury to “give deference to jail officials” in deciding whether Shorter’s conditions of confinement and excessive search claims were viable. The jury returned a verdict in favor of all defendants. Shorter then moved for a new trial, but the magistrate judge denied her motion. Shorter appealed, challenging the instructions given to the jury on her claims.

Held: The Ninth Circuit Court of Appeals declared the main dispute on appeal to be the propriety of the jury instruction, which stated: “In determining whether the defendant(s) violated the plaintiff’s rights as alleged, you should give deference to jail officials in the adoption and execution of policies and practices that in their judgment are needed to preserve discipline and to maintain internal security.”

The Court noted all parties were aware that the appropriateness of the jury instruction turned on whether the jail’s recreation and extended search policies were necessary to preserve discipline and maintain internal security. While officials “should be accorded wide-ranging deference in the adoption and execution of policies and practices that in their judgment [were] needed to preserve internal order and discipline and to maintain institutional security,”[7] the Ninth Circuit stated that courts had long recognized that deference must be set aside where the plaintiff produced “substantial evidence showing that the jail’s policy or practice [was] an unnecessary, unjustified, or exaggerated response to the need for prison security.”[8]

The Court found that Shorter provided substantial evidence showing that the jail’s practice of chaining female inmates to a table in the middle of an indoor recreation room and depriving inmates of food and sanitation was an “unnecessary and unjustified response to the problem of jail security.” For example, Shorter presented a 2014 letter from both the DOJ and the U.S. Attorney that condemned the County’s practice of chaining detainees for recreation, concluding that this approach might reflect “the low level of security staffing…rather than a necessary safety-structural requirement for delivering appropriate assessment and treatment services” for the women inmates. The DOJ letter also encouraged the jail officials to determine the appropriate level of restraint on “an individualized basis in accordance with the prisoners’ specific mental health and safety needs.” Testimony from a jail deputy also suggested understaffing as the motivation driving the practice of applying safety restraints to inmates at all times outside of their cells, including during recreation time.

The Court found the County offered no specific reason for its shackling policy or why it curtailed meals and showers when understaffed. The County never explained why it did not follow the DOJ’s guidance. Nor did the County offer any valid security-based policy as to why such treatment was necessary. The Court observed that all inmates were entitled to food, clothing, sanitation, medical care, and personal safety. Moreover, the Ninth Circuit expressed that it had repeatedly confirmed that the jail officials were constitutionally-bound to provide outdoor recreation opportunities, or otherwise meaningful recreation, to inmates. These conditions of confinement were required regardless of issues of staffing, cost, inconvenience or logistical difficulties.

The Court explained that the deference instruction could only be given when there was evidence that the treatment to which Shorter objected was provided pursuant to a security-based policy. Finding that the only justification that the County offered at trial for severely restricting Shorter’s conditions of confinement was a concern about overcrowding and understaffing, the Court concluded that the magistrate judge should not have instructed the jury to defer to the jail officials on the claim.

Shorter also challenged the jail’s visual body cavity search policy, which all inmates were subjected to upon return from trips to court, and the jail’s practice of leaving noncompliant detainees shackled to their cell doors. The County’s official policy stated that inmates shall not be required to “remain in any search position for more time than is reasonable and necessary to complete the search,” but at the time that Shorter was detained, officials routinely left noncompliant female inmates chained to their cell doors for hours, mostly naked, and with no access to meals, water, or a toilet. Left that way, female inmates were visible to both the male and female guards on patrol. Shorter herself had been chained in this manner three times, leaving her without food, water, or clothing – and one time out of reach of a toilet.

The Court found the search procedures here were a humiliating and extreme invasion of Shorter’s privacy that must be justified by legitimate penological purposes, but jail officials admitted that their practice of keeping noncompliant detainees chained to their cell doors wearing only partial underwear did not serve any legitimate penological purpose. That such practice was later stopped supported the Court’s view that the search procedure was an exaggerated and unwarranted response to prison security, noting that the jail even at the time of Shorter’s detainment had identified a less intrusive alternative method of searching inmates for possible contraband that was not used. Finally, case precedent showed that determinations about whether to defer to jail officials were often fact- and context-dependent, and not a ready acquiescence to jail official authority.

The Court thus concluded that substantial evidence supported Shorter’s argument that this search practice was an unnecessary, unjustified, and exaggerated response to jail officials’ need for prison security. The magistrate judge erred in instructing the jury to give deference to the jail officials on this claim.

The Court also determined that the instruction to defer was not harmless because it was not more probable than not that the jury would have reached the same verdict had it not been so instructed. Accordingly, the Ninth Circuit granted Shorter’s demand for a new trial.

For a more detailed discussion of this case, please see Client Alert Vol. 33, No. 27 available at www.jones-mayer.com.

  1. Warrantless entry by law enforcement officers into an inhabited dwelling deemed the proximate cause of the plaintiffs’ injuries sustained following shooting incident.

Mendez v. Cnty. of L.A., 897 F.3d 1067 (9th Cir. 2018)

Facts: In October 2010, deputies of the Los Angeles Sheriff’s Department were searching for a parolee-at-large, Ronnie O’Dell. An informant had seen someone who looked like O’Dell riding a bicycle in front of Paula Hughes’ home. Deputies Jennifer Pederson and Christopher Conley were among those who attended a briefing about apprehending O’Dell, where they were told O’Dell might have left the Hughes residence already, and that a male and pregnant female lived in the backyard of Hughes’ residence. After the briefing, a sergeant and four deputies, including Conley and Pederson, were dispatched to the Hughes’ house. Pederson and Conley were tasked with searching the area to the rear of the house. The others went to the front of the house.

Conley and Pederson, with guns drawn because they believed O’Dell to be armed and dangerous, first cleared three metal storage sheds located between the house and the side border wall. They then went to the back area of the house to clear the remainder of the property. There was debris throughout the rear of the Hughes property, including abandoned automobiles. About 30 feet behind the house, stood a wood and plywood shack. Conley and Pederson, guns drawn and on alert, approached the shack. An electrical cord, and a water hose were running into the shack, an air conditioner was installed, and open clothes locker was nearby.

Inside the shack, Angel Mendez (“Mendez”) and his then-girlfriend, later wife Jennifer Garcia (“Garcia”) were both sleeping on a futon inside the 7’x7’x7’ structure. Conley, with Pederson close behind, opened a wooden door and entered the shack without announcing their presence. In doing so, they roused the sleeping Mr. Mendez. In rising from the futon, Mr. Mendez picked up a BB gun[9] from where it lay next to him on the futon to place it on the floor so that he could stand. In the process, the gun was pointed in the general direction of Conley and Pederson. Thinking that the BB gun was a rifle, the deputies immediately opened fire. Mendez was shot approximately ten times, resulting in the eventual amputation of his lower leg and ongoing medical expenses. Though the deputies did not see her initially, Garcia was also shot in the upper back and hand.

Mendez and Garcia brought 42 U.S.C. section 1983 civil rights violation claims against the County and deputies based the assertion of being subject to a warrantless search/entry, a failure to knock and announce before entry, and excessive force. The District Court found only nominal liability on the first two claims and, despite finding the deputies’ use of force was constitutionally reasonable, found them liable for excessive force based on application of the Ninth Circuit’s Provocation Rule. Damages were awarded in the amount of $4 Million.

The Ninth Circuit Court of Appeals reversed on the knock and announce liability, finding that it was not clearly established law that officers must re-announce their entry (knock-and-announce their presence again) when entering a separate structure from the residence that is on the curtilage (which is defined as the area immediately adjacent to a home). The officers were accordingly found to be entitled to qualified immunity. Yet the Ninth Circuit still found officers liable for their unconstitutional entering of the shack without a warrant. The Ninth Circuit used its “Provocation Rule” to find that, despite the reasonableness of the force used at the time of the shooting of Mendez and Garcia, the deputies had created the situation that led to the shooting – the very need for the use of force.

The United States Supreme Court rejected the Ninth Circuit’s use of the Provocation Rule. The Supreme Court explained that an evaluation of the “totality of the circumstances” (as established by the Supreme Court in Graham v. Connor, 490 U.S. 386 (1989)) as to whether the use of force was reasonable remained the Fourth Amendment standard to assess excessive force claims. The Supreme Court remanded, suggesting some ways that liability may yet still attach. One was whether the warrantless entry into the shack, prior to the actual use of force, was the proximate cause of the damages ultimately resulting from the officer-involved shooting. The Court had found that the Ninth Circuit did not adequately separate the proximate cause analysis for the unlawful entry—on which the officers did not benefit from qualified immunity—from the proximate cause analysis for the failure to knock and announce—on which they did. The Supreme Court remanded the case for further consideration by the Ninth Circuit on this issue.

Held: On remand, the Ninth Circuit explained that its task was to address whether the officers’ unlawful entry, as distinct from the unlawful mode of entry—that is, the failure to knock and announce—was the proximate cause of the Mendez and Garcia injuries. The Court noted that it must first determine what act or omission constituted the breach of duty, and then ask whether that act or omission was the proximate cause of the injuries. The defendants argued that failing to get a warrant was the breach of duty, and that even if they had obtained a warrant, the same shooting still could have occurred. The plaintiffs contended that the unlawful entry into the shed was the relevant breach of duty. The Court explained that under either view of which unlawful conduct was the specific breach of duty, either unlawful conduct was a proximate cause of the injuries. Nonetheless, the Court found that the plaintiffs’ view was the correct one, and addressed that issue first.

The Court explained that the Fourth Amendment[10] imposes a duty on officers not to enter a home, except under certain specific conditions. One such condition is pursuant to a properly issued warrant. The Court noted that for the purposes of Section 1983, “[a] properly issued warrant makes an officer’s otherwise unreasonable entry non-tortious—that is, not a trespass.” The Court explained that lacking a warrant, or consent to enter or exigent circumstances, an officer “must not enter; it is the entry that constitutes the breach of duty under the Fourth Amendment.” The Court found that the relevant question to consider therefore was not the defendants’ question of whether the shooting and injuries would have happened even if the deputies had obtained a warrant, but whether the shooting and injuries would have happened if the deputies had not unlawfully entered the residence.

The Ninth Circuit then turned to determining whether the unlawful entry was the cause in fact and the proximate cause of the plaintiffs’ injuries. The Court quickly found that the entry was, without question, the cause in fact because had the deputies not entered, Mendez and Garcia would not have been shot.

The Court explained that the proximate cause question asks “whether the unlawful conduct is closely enough tied to the injury that it makes sense to hold the defendant legally responsible for the injury,” and “whether the duty includes protection against such consequences.” Noting that “‘[p]roximate cause is often explicated in terms of foreseeability or the scope of the risk created by the predicate conduct,’”[11] the Court of Appeals explained that the findings of the District Court made clear that the deputies’ entry into the structure was here the proximate cause of the plaintiffs’ injuries.

The Ninth Circuit noted that the District Court found that the deputies entered with guns drawn; were aware, or should have been aware that Mendez and Garcia were living in Hughes’ backyard; were on alert, thinking O’Dell the parolee-at-large was armed; and should be expected to understand that some individuals would keep firearms in their homes to defend against intruders, as strongly protected by the Second Amendment. In such a context, the Court explained, “armed officers entering a house will necessarily present a substantial risk to anyone in the house they perceive as being armed. It is all the more important that officers in such cases abide by their duties under the Fourth Amendment.” The Court added that “[e]specially where officers are armed and on alert, violent confrontations are foreseeable consequences of unlawful entries.”

The Court further observed that, to procure a warrant, officers would need probable cause that O’Dell was in the Mendez-Garcia shack. Though the Court found it unlikely that probable cause could even be established to secure a warrant, the Court explained that the “slower and more deliberative process” of doing so – gathering necessary information to comply with the Fourth Amendment, seeking an impartial magistrate – would lead to a greater likelihood of reflection on the facts involved, including perhaps remembering that two people lived in the back of Hughes’ house. The Court thus concluded proximate causation of the plaintiffs’ injuries would still attach even if the Court had considered the failure to obtain a warrant to be the duty breached.

On the plaintiffs’ cross-appeal, the Court considered their negligence claim under California law. After the District Court’s earlier decision, the California Supreme Court held in Hayes v. County of San Diego[12] that “tactical conduct and decisions preceding the use of deadly force are relevant considerations under California law in determining…negligence liability.” Noting that the District Court had found that the “totality of Deputies Conley and Pederson’s conduct was reckless as a matter of tort law,” and that “the conduct rose beyond even gross negligence,” the Ninth Circuit here found the deputies “beyond negligent” for entering a dwelling with guns drawn and without announcing their presence, particularly considering they had been told that the dwelling was occupied. Unlike under federal law, per Venegas v. County of Los Angeles,[13] the deputies were not entitled to qualified immunity under state law because they did not knock and announce their presence. The Court stated that deputies knew or should have known about Mendez and Garcia’s presence, but they chose to proceed without taking even basic precautions, which could have prevented the severe injuries that followed. Moreover, immunity under Cal. Gov’t Code sections 821.6 and 820.2 did not apply because they were of relevance only in specific situations not at issue here.

The Ninth Circuit accordingly affirmed the District Court’s holding that the two deputies were liable for Fourth Amendment search violations and remanded with instructions that the judgment be amended to award all damages arising from the shooting in the plaintiffs’ favor as proximately caused by the unconstitutional entry, and proximately caused by the failure to get a warrant. The Court of Appeals also instructed that judgment be entered in the plaintiffs’ favor on the California negligence claim for the same damages arising out of the shooting.

For a more detailed discussion of this case, please see Client Alert Vol. 33, No. 26 available at www.jones-mayer.com.

  1. Liability under the Bane Act does not require a ‘threat, intimidation, or coercion’ to be independent from an underlying constitutional violation; such liability requires only that defendant acted with specific intent to violate plaintiff’s civil rights.

B.B. v. County of Los Angeles, 2018 Cal. App. LEXIS 618 (Ct. App. July 10, 2018)

Facts: In August 2012, Los Angeles County Sheriff’s Department deputies responded to a 911 call about a man assaulting a woman in a Compton street. Deputy David Aviles and another deputy were the first to arrive where they encountered Darren Burley, who behaved and moved as if he was under the influence of PCP. Burley did not respond to Aviles’ order to get on his knees. After Burley moved to pursue a woman who yelled that Burley had tried to kill her, the other deputy “hockey checked” him. As a result, Burley hit his head on a parked truck and then fell to the ground. As the deputies attempted to restrain him, Burley struggled and tried to raise his chest from the ground. A witness later testified that Burley seemed to be gasping for air.

Deputy Paul Beserra arrived to find the two deputies and Burley in this manner. Other deputies arrived a little later. The deputies attempted to assist in restraining Burley, including by tasing Burley multiple times (without effect). Eventually, the deputies were able to handcuff Burley and hobble his legs. Burley was prone on his stomach the entire time, with Aviles on his back for the estimated three to four and a half minutes since Beserra’s arrival. The other deputies disengaged, but Deputy Beserra kept his knee in Burley’s back. About two minutes later, Beserra heard Burley having difficulty breathing and felt Burley go limp. Beserra did not perform CPR. Paramedics arrived. Burley had no pulse, so the paramedics applied CPR and other methods. After five minutes, they restored Burley’s pulse and transported him to a hospital. Burley never regained consciousness and died ten days later. The autopsy report described the cause of death as brain death and swelling from lack of oxygen after a cardiac arrest due to status post-restraint maneuvers or drug intake, and marked the manner of death as “could not be determined.”

Burley’s estranged wife and children filed an action against the deputies and the County of Los Angeles (“defendants,” collectively), alleging battery, negligence, and civil rights violations under Civil Code section 52.1, known as the “Bane Act.” Defendants moved for summary adjudication of the Bane Act claim, which the trial court granted.

After a trial on the remaining charges, a jury found Deputy Aviles liable for intentional battery by use of excessive force and Deputy Beserra liable for negligence resulting in Burley’s death. The jury attributed 40 percent of the fault to Burley, 20 percent each to Deputies Aviles and Beserra, and the remaining 20 percent to the other deputies. The jury awarded Plaintiffs $8 million in noneconomic damages, and the trial court entered judgment against Aviles for the full amount of the award based on the jury’s finding that he intentionally harmed Burley.

The defendants appealed. Plaintiffs filed a cross-appeal from the trial court’s order granting Defendants summary adjudication on Plaintiffs’ Bane Act claims.

Held: The California Second District Court of Appeal first found that the language of Civ. Code section 1431.2 clearly required that noneconomic damages be awarded in proportion to each defendant’s comparative fault; the jury’s finding of intentional misconduct did not change this requirement. Moreover, in DaFonte v. Up-Right, Inc.,[14] the California Supreme Court held that Section 1431.2 unambiguously shielded every defendant, regardless of intent, in every case from liability for damages not attributable to the defendant’s comparative fault. Consequently, the Court vacated the trial court’s decision as it pertained to Deputy Aviles’ liability, ordering separate judgments to be rendered against him and Deputy Beserra proportional to their comparative fault.

The Court of Appeal next addressed Plaintiffs’ cross-appeal from the trial court’s order granting Defendants summary adjudication on the Bane Act claim. The Court explained: “The Bane Act provides a civil cause of action against anyone who ‘interferes by threat, intimidation, or coercion … with the exercise or enjoyment … of rights secured by the Constitution or laws of the United States, or of the rights secured by the Constitution or laws of this state.’ ([Section] 52.1, subd. (a); see id., subd. (b).) [..] ‘The essence of a Bane Act claim is that the defendant, by [“threats, intimidation or coercion”], tried to or did prevent the plaintiff from doing something he or she had the right to do under the law or to force the plaintiff to do something that he or she was not required to do under the law.’ (Austin B. v. Escondido Union School Dist. (2007) 149 Cal.App.4th 860, 883.)”

Defendants argued that, under Shoyoye v. County of Los Angeles[15] (“Shoyoye”), a plaintiff must show a threat, intimidation, or coercion independent of the coercion inherent in an underlying civil rights violation. Because it was undisputed that Defendants had probable cause to arrest Burley, they argued evidence showing they used excessive force in effecting the arrest was insufficient to establish a Bane Act violation.

The Court of Appeal explained that the Shoyoye court considered whether negligent but inherently coercive conduct was sufficient to establish a Bane Act violation. The Shoyoye plaintiff had been lawfully arrested but overdetained by 16 days due to a paperwork error. The Shoyoye court held intentional conduct was needed to establish a Bane Act violation even when the interference was accomplished through necessarily coercive means. Thus, the court said, “where coercion is inherent in the constitutional violation alleged, i.e., an overdetention in County jail, the statutory requirement of ‘threats, intimidation, or coercion’ is not met. The statute requires a showing of coercion independent from the coercion inherent in the wrongful detention itself.”

The Court of Appeal found that Defendants misread Shoyoye to suggest a rule necessitating independent coercion whenever coercion was inherent in the underling civil rights violation. Instead, the proper understanding of the Shoyoye court’s analysis was that it meant the rule to apply “only where the underlying violation (and the incidental coercion that accompanied it) was the product of unintentional or negligent error.” The Shoyoye court actually identified intentional conduct standing alone in the context of the case there as something that would establish a Bane Act violation. Here, the Court summarized its reading of Shoyoye thusly: “where an individual is subject to coercion that is incidental to an unintentional or negligent interference with civil rights, the individual must show some additional coercion, independent of that caused by the negligent interference, to establish a Bane Act violation.”

The Court noted that Cornell v. City and County of San Francisco[16] refined Shoyoye’s view that more egregious conduct than mere negligence imposed Bane Act liability. The Cornell court held that, “where a civil rights violation has been ‘properly pleaded and proved, the egregiousness required by Section 52.1 is tested by whether the circumstances indicate the [defendant] had a specific intent to violate the [plaintiff’s civil rights], not by whether the evidence shows something beyond the coercion ‘inherent’ in the [violation].’”

The Court here further observed that, in Reese v. County of Sacramento,[17] the federal Ninth Circuit Court of Appeals adopted Cornell’s specific intent standard in an excessive force case brought under the Bane Act: “Cornell correctly notes that the plain language of Section 52.1 gives no indication that the ‘threat, intimidation, or coercion’ must be independent from the constitutional violation.[…][T]he specific intent requirement articulated in Cornell is consistent with the language of Section 52.1, which requires interference with rights by ‘threat, intimidation or coercion,’ words which connote an element of intent.”

The California Second District Court of Appeal agreed with Cornell, Reese, and the Ninth Circuit: a plaintiff must prove the defendant acted with a specific intent to violate the plaintiff’s civil rights in order to establish liability under the Bane Act. Here, the Court concluded that Plaintiffs presented sufficient evidence in opposition to Defendants’ summary adjudication motion to raise a triable issue of fact on the question of Defendants’ intent.

Although Defendants had probable cause to detain Burley, Plaintiffs’ evidence suggested Defendants intentionally used excessive force on Burley beyond the level necessary to make the arrest. At that point, Defendants’ conduct became a coercive interference with Burley’s civil rights as proscribed by the Bane Act. Because Plaintiffs presented enough evidence to create a triable issue as to whether Defendants used excessive force on Burley with the specific intent to interfere with his Fourth Amendment rights, the trial court should not have granted summary adjudication of Plaintiffs’ Bane Act claims. Accordingly, the Court here reversed and remanded the trial court’s order.

  1. No reversible error found in a Miranda challenge where the suspect was interviewed by two different officers about two different crimes, since officers were not required to readvise him of his Miranda rights.

People v. Spencer, 5 Cal. 5th 642 (2018)

Facts: On January 24, 1991, some men robbed a store employee as he was leaving work, and robbed the store itself. One of the men used a stun gun on the employee. A female, later identified as an informant named “Cynthia,” called a San Jose Police Department (“SJPD”) detective and identified “Danny, John, Matt, Chris, and Troy” as the stun gun robbers. Cynthia eventually supplied to SJPD officers additional information about the robbers. Another SJPD officer, assisting the detective, tracked down the suspects’ addresses and spoke to some of their family members, thereby corroborating specific aspects of the tip provided by Cynthia. The SJPD officer had learned from Cynthia’s message that the group was planning another robbery, so he told everyone he talked with to call 911 if they saw any of the January 24 robbery suspects. On the evening of January 28, an anonymous call to SJPD that provided the robbery suspects’ current location and vehicle information helped lead to the capture and arrest of several individuals, including defendant here, Christopher Spencer.

Unbeknownst to SJPD officers, Spencer and three of the robbery suspects had killed someone during another robbery four days after the January 24 store robbery. On January 28, 1991, after burglarizing the store where James Madden worked, Spencer and his friends stabbed Madden to death. As in the prior robbery, one of the men had used a stun gun on Madden too. Santa Clara Police Department detective Sergeant Ted Keech investigated on the morning of January 29, the day after the killing. He determined that whoever committed the robbery coincident with the killing the night before must have had some store familiarity, and discovered two recently terminated employees. Sergeant Keech later learned that those two and other suspects in the robbery-killing were in SJPD custody. He travelled to the SJPD station, arriving shortly after midnight.

About an hour before Sergeant Keech’s arrival, SJPD Detective George De La Rocha, unaware of the Madden robbery-killing, began questioning Spencer. De La Rocha advised Spencer of his Miranda[18] rights, which Spencer waived, before asking him about the store robbery that occurred four days earlier. Spencer admitted to involvement in the January 24 robbery, and said that on the night of January 28 – when Madden was killed – Spencer was with Daniel Silveria, John Travis, Matthew Jennings, and Troy Rackley. This group of five would shortly become suspects in the Madden murder.

About 4:00 a.m. the next morning, roughly five hours since Spencer had waived his Miranda rights, Sergeant Keech and his partner took charge of the interview asking about Madden’s murder. Sergeant Keech began by asking Spencer if he had been read his rights, to which Spencer clearly answered yes repeatedly. Spencer then confessed to the killing, providing details. The interrogation conducted by Sergeant Keech lasted ninety minutes.

After a trial, a jury eventually sentenced Spencer to death for Madden’s murder. The jury also found special circumstances that Spencer murdered Madden while robbing him and burglarizing his place of business. (Pen. Code section 190.2, subd. (a)(17).) The death verdict triggered an automatic appeal under California law.

Held: On appeal, Spencer argued a number of claims that the California Supreme Court considered. Among other things, he contended that there were issues of probable cause to arrest, necessity of Miranda readvisement, and voluntariness of confession.

Spencer argued that police lacked probable cause to arrest him because Cynthia was not a “presumptively reliable” informant, requiring suppression of his confession. Assessing the totality of the circumstances, the Court rejected his contention because neither the Court nor the police presumed Cynthia’s information to be wholly reliable. Instead, the SJPD officers substantiated her tip by, for example, discovering some of the suspects’ full names and finding they corresponded with the first names Cynthia provided; speaking to the family members of the suspects; finding corroboration of vehicle information; learning information about the others from one suspect who cooperated with the officers; and learning the suspects “hung out as a group” and were planning to leave town. The Court concluded this corroboration through other sources of information reduced the chances of the information being false, and thus provided a substantial basis for crediting Cynthia’s information.

The Court next considered Spencer’s contention that he lacked a proper Miranda warning before his confession to the murder. The Court discussed prior case law. In Miranda v. Arizona,[19] the United States Supreme Court held that “[a]lthough the two law enforcement authorities [involved there were] legally distinct and the crimes for which they interrogated [the Miranda defendant] were different, the impact on him was that of a continuous period of questioning.” In 1991, the California Supreme Court in People v. Mickle[20] found that “[w]here a subsequent interrogation is ‘reasonably contemporaneous’ with the prior waiver, and the prior waiver was ‘knowing and intelligent,’ police need not undertake a Miranda readvisement. In Mickle, the second interrogation happened about 36 hours after the first one.

Here, only five hours passed between Spencer’s Miranda waiver and Sergeant Keech’s interrogation. The Court also noted that Sergeant Keech did not simply remind Spencer of his prior Miranda warnings; he also confirmed Spencer understood and waived his rights. Before asking Spencer about the circumstances surrounding the murder, the Sergeant again asked whether Spencer understood his rights and was willing to talk; Spencer again clearly answered yes.

Finally, when Sergeant Keech once more brought up the Miranda warnings near the end of the interview, Spencer repeated some of the rights verbatim back to the officer. The Court said that “[w]hile a belated advisement cannot render admissible a prior confession, we do not think that this exchange constitutes an after-the-fact Miranda warning. Rather, coming at the end of the interview, the exchange confirms that Spencer knew his rights throughout the interrogation and waived them when he willingly talked to the officers.”

The Court therefore found that, under the totality of the circumstances, the later Keech questioning was reasonably contemporaneous with the initial questioning where Spencer was advised of his rights, despite the fact that two different officers had interrogated Spencer for two different crimes. Thus, a Miranda readvisement was not required.

Spencer also contended his confession was involuntary and so should be suppressed. The Court observed a number of facts pertinent here: Spencer did not claim physical intimidation or deprivation; he did not dispute he received Miranda warnings and waived his rights; he did not try to invoke any of these rights during the interview; Sergeant Keech did not make any aggressive statements or use obvious strong-arm tactics; Spencer gave clear responsive answers and did not seem excessively scared or distressed throughout; he had chances to minimize his own involvement but instead changed his story progressively increasing his own culpability until he finally confessed he stabbed Madden. The Court also noted that Spencer confirmed at the end of the interview that his confession was “‘free and voluntarily given.’” He confirmed that the officers made him no promises of leniency and that they did not threaten him. Nor did Spencer seem especially physically or mentally vulnerable to suggestion. The Court concluded these circumstances were not indicative of coercive interrogation, and that Spencer’s confession was voluntary.

Finding no reversible error in any of Spencer’s other claims invalid also, the Supreme Court of California accordingly affirmed the lower court’s judgment in its entirety.

  1. Though evidence showed “judicial abandonment” by municipal court judge, defendant’s motion to suppress evidence properly denied where officers did not know nor reasonably should have known that the arrest warrant was inexcusably infirm.

United States v. Barnes, 2018 U.S. App. LEXIS 20007 (9th Cir. July 19, 2018)

Facts: In August 2015, a Yakima Police Department officer told fellow Officers Tovar and Cordova to look out during patrol for two men, plaintiff Barnes and his son Raymond. The patrolling Officers checked their mobile data terminal, finding that there were outstanding warrants on father and son. The Officers looked at several photos of Travis and Raymond Barnes to know their general appearance. On patrol, the officers identified plaintiff Travis Barnes, the father, by his unique neck tattoo as he was walking on the street. One officer told Barnes there was a warrant for his arrest. The other officer mistakenly told Barnes that he was wanted on a “DOC felony warrant,” which was actually the warrant for his son. Barnes’ warrant was a misdemeanor bench warrant for failure to appear for arraignment for a trip permit violation about six months prior. At this point, Barnes attempted to run away before being tased down by a Deputy who happened to be in the area for another investigation and had observed Barnes and the Officers as they conversed. The YPD officers caught up, handcuffed and searched Barnes, finding a .22 caliber silver pistol in his front right pocket.

Barnes, who had a prior felony conviction, was charged in federal court with being a felon in possession of a firearm in violation of 18 U.S.C. section 922(g)(1). Barnes filed a motion to suppress, arguing that the misdemeanor warrant for his arrest was not supported by probable cause. The Government responded by presenting a copy of the criminal complaint prepared by a city prosecutor for Barnes’s alleged trip violation. The complaint, dated February 9, 2015, included a stamp where the reviewing judge had circled “Yes” to “Probable Cause” and signed with her initials on February 13, 2015. Barnes also said that he had been arrested while he was on the way to a dumpster to dispose of the gun to keep it away from small children at his residence, and argued to present a necessity defense to the jury.

At an evidentiary hearing, an assistant for the Yakima Municipal Court Clerk’s Office testified that she was familiar with the way criminal complaints were processed. She explained that a prosecutor would submit a complaint for a clerk to stamp with “probable cause” and “yes” and “no” responses. The reviewing judge would then circle either “yes” or “no” to probable cause, sign or initial her name, and send the complaint back to the clerk to print out a summons. The assistant said she never saw the prosecutors include a police report with the complaint. When asked whether the prosecutors would submit an affidavit with the complaint, the assistant—who had been with the court for six and a half years—answered that she wasn’t sure what an affidavit was and that she would “have to say no.” The assistant further testified that the municipal court judges did not issue separate orders finding probable cause, but rather denoted their findings of probable cause on the criminal complaint itself.

The District Court denied Barnes’s motion to suppress. The court did so partly because it assumed, without evidence, that the municipal court judge “in the ordinary course of business would have reviewed [the arresting officer’s] citation containing his certification under oath.” The court declared that it was “extremely difficult to fathom that a Yakima Municipal Court Judge would make a determination of probable cause based solely on a complaint presented by the prosecutor and without reviewing the citation giving rise to the complaint.” The jury convicted Barnes of being a felon in possession of a firearm. Barnes was sentenced to 41 months’ imprisonment followed by three years of supervised release. He appealed.

Held: The Ninth Circuit Court of Appeals held that although Barnes showed judicial abandonment due to the “inexcusably infirm” warrant, the evidence could not be suppressed because the officers were unaware – and had no reason to be aware – of any judicial misconduct.

The Court reviewed the District Court’s rulings on the motion to suppress de novo. The Court explained that normally evidence obtained in violation of the Fourth Amendment’s prohibition against unreasonable search and seizure must be excluded (the “exclusionary rule”). However, the “good faith exception” to the exclusionary rule applies where the evidence was obtained in objectively reasonable reliance on a subsequently invalidated warrant. Under the good faith exception to the exclusionary rule, the evidence is not subject to suppression after all.

The Ninth Circuit explained that, in United States v. Leon,[21] the United States Supreme Court identified four situations that would fail to satisfy the good faith exception (exceptions to the good faith exception) because the officer would have had no reasonable grounds for believing that the warrant was properly issued. One of these situations was when the judge fully abandoned his or her judicial role. Leon emphasized that the judicial abandonment exception to the good faith exception was relevant in circumstances when no reasonably well trained officer should rely on the warrant. Yet Leon also noted that the exclusionary rule was designed to deter police misconduct rather than to punish the errors of judges and magistrates, and the Supreme Court later in Arizona v. Evans[22] explained that “[w]here the exclusionary rule does not result in appreciable deterrence, then, clearly, its use is unwarranted.”

After reviewing other circuit decisions about judicial abandonment and the exclusionary rule, the Ninth Circuit therefore concluded – per Supreme Court directives and consistent with the Fifth, Sixth, and Tenth Circuits – that the exclusionary rule in the judicial abandonment context only applied if both of the following conditions were true: (1) The issuing judge abandoned his or her judicial role; and (2) Law enforcement officers knew or should have known of the abandonment. The Court first addressed the judicial abandonment step.

Though the Ninth Circuit said it understood how it could be difficult for the District Court to comprehend how a municipal court judge could “disregard decades of precedent establishing that judges may not rely on a prosecutor’s complaint alone to find probable cause,” neither the District Court nor the Court of Appeals was “at liberty to substitute [the federal courts’ own] assumptions for evidence in the record.” “Moreover, as the Supreme Court has recognized, judicial determinations of probable cause may not always adhere to the tenets of constitutional law.” The Court of Appeals observed that there was no record evidence that the municipal court judge either received or read a copy of the citation prior to her finding of probable cause, so the District Court’s assumption was a “permissible view[] of the evidence.”[23]

The only court employee to testify explained that prosecutors regularly submitted complaints for probable cause determinations without attaching police reports or affidavits. The Yakima Municipal Court judges apparently had a practice then of recording their probable cause determinations on the criminal complaint itself without giving a separate order. The Government’s argument that the complaint had a citation number for Barnes’s violation and so the reviewing judge could have used the citation number to lookup the citation and then retrieve and review its associated information was “speculation” because there was no evidence that the reviewing judge ever retrieved a copy of the criminal complaint – “whether in this case or in others.” The Ninth Circuit thus found that the District Court’s view that the Municipal Court judge must have reviewed the citation in the “ordinary course of business” was clearly incorrect; the warrant for Barnes’ arrest warrant was consequently “inexcusably infirm;” and Barnes had therefore satisfied his burden of showing “judicial abandonment” by a preponderance of the evidence.

Turning to the second element of the Ninth Circuit’s description of the exclusionary rule above, the Court found no evidence here that the YPD officers knew or should have known that the arrest warrant was infirm. Neither officer was present when the reviewing judge made her determination, nor was there any evidence in the record to suggest the officers were aware of any judicial misconduct, either here specifically for Barnes’s warrant or as a Yakima Municipal Court practice. The Ninth Circuit thus concluded that although Barnes met his burden of showing judicial abandonment, the evidence could not be suppressed because the officers executing the infirm warrant were unaware—and had no reason to be aware—of any judicial misconduct. The good faith exception to the exclusionary rule therefore applied.

The Court additionally found that the District Court properly denied Barnes’ request to present a necessity defense to the jury because Barnes failed to show he took possession of the firearm to prevent imminent harm to the children at his residence. There was no evidence that the children had already possessed the firearm or were about to do so, or were even close to it. There was no sense of an impending emergency.

The Court accordingly applied the good faith exception to the exclusionary rule and affirmed the District Court in its denial of his motion to suppress evidence, and its preclusion of Barnes’s necessity defense.

  1. Exclusionary rule applicable even in administrative tribunals where evidence obtained in ICE investigation not attenuated from sheriff’s unlawful search and seizure.

Frimmel Mgmt., LLC v. United States, 2018 U.S. App. LEXIS 20806 (9th Cir. July 26, 2018)

Facts: On July 17, 2013, the Maricopa County Sheriff’s Office (“MCSO”), under Sheriff Joe Arpaio, raided two Arizona restaurants where plaintiff Frimmel Management leased employees, and the home of Bret Frimmel, owner of Frimmel Management. MCSO deputies seized employment records based on suspicion of identity theft and forgery. The Maricopa County Superior Court found “unreasonable and reckless” omissions and distortions in the search warrant’s supporting affidavits and, after reforming the affidavits, dismissed the charges against Frimmel for lack of probable cause.

The day after the raid, MCSO sent a Shift Summary reporting the results of the unlawful search to Immigration and Customs Enforcement (“ICE”). MCSO issued a press release publicizing the raids on the day of the raid and the day after, stating that nine of the suspects “have had ICE holds placed on them.” ICE subsequently conducted an investigation of Frimmel’s compliance with employment verification requirements. Based on employment records obtained from its investigation, ICE filed a complaint with the Office of the Chief Administrative Hearing Officer of the Executive Office for Immigration Review (“OCAHO”), alleging Immigration and Nationality Act violations. Frimmel sought to suppress his employment records, but an Administrative Law Judge (“ALJ”) gave a final decision and order declining to suppress the records. Frimmel petitioned the Ninth Circuit Court of Appeals for review.

Held: The Ninth Circuit held that MCSO’s raids constituted egregious Fourth Amendment violations, and that ICE’s evidence was not attenuated from MCSO’s illegal raid so as to avoid constituting the “fruit of the poisonous tree.”

The Court initially explained that that the exclusionary rule instructs that evidence seized in violation of the Fourth Amendment cannot constitute proof against the victim of the search.[24] The Court explained that, even in administrative proceedings in which the exclusionary rule does not ordinarily apply, administrative tribunals were still required to exclude evidence that was obtained by deliberate or egregious violations of the Fourth Amendment, or by conduct a reasonable officer should know was in violation of the Constitution.[25]

The Court noted that MCSO actually withheld facts in its affidavits that undermined the credibility of anonymous tips that implicated Frimmel, and that detectives withheld that an IRS investigation found no wrongdoing by Frimmel, among other flaws. The Court found these omissions and distortions intentional or reckless given how significant they were. The Court likewise found that the resulting MCSO’s raids violated the Fourth Amendment. The Court also found the conduct egregious because, under prior case law, “if an officer recklessly omits or falsifies material information, the officer has acted unreasonably and thus the officer’s actions are sufficient to qualify as egregious conduct.”

The Court observed that the Government did not dispute that MCSCO’s omissions and distortions in its affidavits were reckless and material. Nor did the Government dispute that MCSO’s conduct was an egregious Fourth Amendment violation. The Government argued instead that the ICE investigation was too attenuated from MCSO’s illegal conduct for the exclusionary rule to properly apply.

The Ninth Circuit explained that, under the attenuation doctrine, evidence was admissible when the link between the illegality and the challenged evidence had become so attenuated (or weakened) as to dissipate the taint caused by the illegality.[26] In considering whether the attenuation doctrine applied as an exception to the exclusionary rule, the Court considered temporal proximity, and noted that the ICE investigation closely followed the unconstitutional search. The Court noted that ICE Auditor Ryan Miller testified that he initiated the audit after MCSO issued a press release publicizing the illegal raid, and MCSO emailed ICE the day after the raid with the Shift Summary. The Court thus determined ICE’s evidence was the fruit of the unlawful search.

Temporal proximity, intervening circumstances, and flagrancy factors all weighed against the application of the attenuation doctrine. The Court held that ICE’s investigation was therefore not attenuated from MCSO’s illegal raid. The Court also found that MCSO had immigration enforcement as its primary zone of interest because MCSO had a policy of sharing information with ICE, and the only reasonable inference was that MCSO shared this information for the purposes of spurring ICE enforcement action.

The Court concluded that application of the exclusionary rule would serve to deter MCSO from Fourth Amendment violations by the probability that illegally obtained evidence would not be useful to ICE, even in a civil proceeding. The Court accordingly reversed the ALJ’s ruling denying suppression of ICE’s evidence pursuant to the exclusionary rule, vacated ALJ’s judgment, and remanded for further proceedings.

  1. Qualified immunity properly denied where police officers took ‘affirmative action’ with ‘deliberate indifference’ to put political protesters at rally in known danger.

Hernandez v. City of San Jose, 2018 U.S. App. LEXIS 20908 (9th Cir. July 27, 2018)

Facts: In June 2016, Donald Trump – then a Presidential candidate – held a political rally at a convention center in San Jose. The San Jose Police Department (“SJPD” or “department”) expected at least 12,000 attendees for the 7 p.m. to 8:30 p.m. rally. SJPD was aware that Trump rallies in other cities had led to violent anti-Trump protests, and therefore the City of San Jose (“City”) requested additional officers and vehicle support, and fitted many officers with riot gear. About 250 officers would patrol the San Jose rally. According to plaintiff attendees’ First Amended Complaint (“FAC”), the City “instructed all officers to stand by, watch as the attacks occurred, and not intervene” because “intervention might cause a riot.”

The attendees alleged that upon exiting the convention center, officers directed them into the crowd of violent anti-Trump protestors waiting outside, rather than allowing them to move in the “direction of safety.” After following the officers’ directions, plaintiffs suffered various injuries inflicted by the anti-Trump protestors, including broken bones and abrasions. Protestors, according to the FAC, battered some attendees repeatedly, threw bottles and eggs, and even tackled one attendee.

According to the FAC, all deployed SJPD officers knew as early as 6 p.m. on the day of the rally that assaults had already been reported outside the convention center. During the rally itself, officers witnessed violence firsthand, or were informed of it, yet did nothing. SJPD made no arrests for violence against rally attendees. According to the FAC, the SJPD Chief did not later discipline officers for their conduct during the Rally, but instead publicly commended them for their discipline, restraint, and effectiveness.

Some attendees filed a class action against seven SJPD officers and the City alleging, among other things, a 42 U.S.C. section 1983 due process claim against the officers and a Section 1983 due process claim against the City under Monell v. Department of Social Services of City of New York.[27] The City’s motion to dismiss was denied by the District Court. The District Court held that the officers were not entitled to qualified immunity, and that the City was liable under Monell. After Defendants appealed, the Ninth Circuit Court of Appeals reviewed.

Held: Taking the operative FAC’s facts as true as required on a motion to dismiss, the Ninth Circuit held that the defendant officers increased the danger to attendees by shepherding them into the violent crowd of protestors, and acted with deliberate indifference to that danger.

In reaching its conclusion, the Court initially explained that to make a determination whether an officer is entitled to qualified immunity, the Court asks, in any chosen order, “‘(1) whether the alleged misconduct violated a [constitutional] right and (2) whether the right was clearly established at the time of the alleged misconduct.’”[28] Properly applied, the test protects “‘all but the plainly incompetent or those who knowingly violate the law.’”[29]

Violation of a Constitutional Right

The Court first addressed whether a constitutional right was violated. The Court explained that, although individuals have no constitutional right to sue public employees who do not protect the individuals from harm by third parties,[30] “[a]n exception to the rule applies when government employees ‘affirmatively place[] the plaintiff in a position of danger, that is, where [their] action[s] create[] or expose[] an individual to a danger which he or she would not have otherwise faced.’”[31] The Court added that the affirmative act must create an actual, particularized danger, and the ultimate injury to the plaintiffs must be foreseeable. The second element of this state-created danger doctrine was that the public employees must have also acted with deliberate indifference to a known or obvious danger.

The Court explained that understanding whether an officer affirmatively placed an individual in danger required courts to examine whether the officer “left the person in a situation that was more dangerous than the one in which they found him.”[32] Here, the Court observed that an attendee being attacked by anti-Trump protesters was only a possibility when the attendees arrived at the Rally, but the officers greatly increased that risk of violence when they channeled the attendees towards the aggressive mob waiting outside the Convention Center. According to the FAC, the officers actively prevented the plaintiff attendees from leaving safely through alternative exits, directed [the Rally Attendees] to leave from a single exit, and required the Attendees to turn north into the crowd of violent anti-Trump protesters. The danger that the anti-Trump protesters would hurt them was, plaintiffs alleged, both “actual” and “particularized,” as well as “foreseeable,” since according to the FAC, the officers “witnessed” the violence against the attendees during the rally, and there were reports from as early as 6 p.m. that evening that anti-Trump protesters had attacked people at the Rally. Taking these facts as true, the Court found that the plaintiff attendees sufficiently alleged that the officers placed them “in a more dangerous position” than the one in which they found themselves.

The Court said that to claim deliberate indifference, the plaintiff attendees must allege facts demonstrating the officers recognized an unreasonable risk and actually intended to expose the attendees to such risks without regard to the consequences to the attendees. The Court observed that the officers here were aware of the danger to the plaintiffs because as early as 6 p.m. the day of the rally, the San Jose police warned all officers deployed around the rally that assaults had already been reported outside the Convention Center. Moreover, officers witnessed many violent acts, according to the FAC, during the rally. Nonetheless, SJPD officers still continued to direct attendees into the protestors. The Court thus found that officer defendants acted with deliberate indifference.

The Court thus found the officers affirmatively placed the attendees in danger, and acted with deliberate indifference to a known or obvious danger in subjecting the attendees to that danger. The Court accordingly concluded that the attendee plaintiffs adequately claimed a constitutional violation as per the first prong of the qualified immunity standard.

Clearly Established Law

The Court explained that to be a clearly established right, a right must be “sufficiently clear that every reasonable official would have understood that what he is doing violates that right.”[33] The plaintiffs cited Johnson v. City of Seattle,[34] which the Court found to have “clearly establishe[d] [that] the state-created danger doctrine applies to the crowd-control context.” The Supreme Court found that the constitutional violation here, based on the FAC allegations, was so obvious that the Court must conclude qualified immunity was inapplicable. Though Johnson was not directly on point, the Court observed that “‘[i]n an obvious case, [highly generalized standards] can clearly establish [a constitutional violation], even without a body of relevant case law.’”[35]

Accordingly, the Court concluded that the District Court properly denied the SJPD defendant officers qualified immunity. However, the Court noted this judgment applied at this point of the proceedings where the operative FAC held sway prior to the development of the evidentiary record through discovery, much less a trial, and that defendant officers were not precluded from ever asserting qualified immunity as litigation proceeded.

The Court also found that it lacked jurisdiction to review the merits of plaintiff Monell claims against the City. The Court noted that it “‘may [also] exercise “pendent” appellate jurisdiction over an otherwise nonappealable ruling if the ruling is “inextricably intertwined” with a claim properly before [the Court] on interlocutory appeal.’ Kwai Fun Wong v. United States, 373 F.3d 952, 960 (9th Cir. 2004).” Here, the officers’ liability, as detailed above, would hinge on whether they increased the danger to the Attendees and acted with deliberate indifference to that danger. The City’s liability pivoted on whether the SJPD Chief took steps to reprimand or discharge the officers, or failed to admit their conduct was in error. Because the issue of liability under Monell was not “inextricably intertwined” with the qualified immunity issue, the Court accordingly dismissed the City’s appeal.

Thus, the Court affirmed the denial of qualified immunity and dismissed the City’s appeal for the Monell claim.


Ninth Circuit rules that second amendment protects the right to open carry of firearm.

Young v. State of Hawaii, 896 F.3d 1044 (9th Cir. 2018)

Facts: Plaintiff George Young desired to openly carry a firearm in public for personal self-defense in the State of Hawaii. Hawaii law generally only authorizes citizens to keep firearms in their “place of business, residence or sojourn.” However, if a citizen can demonstrate “exceptional” circumstances, the citizen can obtain a concealed carry permit. If the citizen can “sufficiently demonstrate” that the citizen is “engaged in the protection of life and property” and “while in the actual performance of his duties[,]” an open carry permit can be obtained. Young’s local law enforcement agency denied his application for a license to carry either an open or concealed firearm in public. Young filed suit in federal court under 42 U.S.C. section 1983, alleging the denial of his request for permits violated his Second Amendment right to carry a loaded firearm in public for self-defense. The district court granted the government’s motion to dismiss, and Young appealed.

Held: The Ninth Circuit reversed the lower court’s dismissal of the suit, finding that the Second Amendment guarantees the right to self-defense in public. The Court considered its recent en banc decision of Peruta v. County of San Diego, 824 F.3d 919 (2016). The Court noted that California law generally prohibits the carrying of firearms in public. See Cal. Penal Code sections 25400, 25850, 26350. However, the Court noted that San Diego County left open the possibility for a person to carry a concealed firearm upon the demonstration of “good cause.” The Court determined that the Peruta decision applied only to the right to the concealed carry of firearms in public, which it held fell outside the scope of the Second Amendment. The Court stated that Peruta left unresolved the question of whether the Second Amendment encompasses a right to open carry. According to the Court, “Young’s claim therefore picks up where Peruta’s left off and presents an issue of first impression for this circuit: whether the Second Amendment encompasses a right to carry firearms openly in public for self-defense.” The Court then turned to a comprehensive review of prior case law decisions and other historical precedent.

The Court noted that its interpretation of the scope of the Second Amendment was guided by District of Columbia v. Heller, 554 U.S. 570 (2008) and McDonald v. City of Chicago, 561 U.S. 742 (2010). The Court observed that the Supreme Court, in Heller, invalidated a District of Columbia ban on possession of a handgun in the home. The Court noted that the Supreme Court, in McDonald, invalidated a Chicago law that effectively banned handgun possession by residents of the city. The Court further noted that it was “not the first circuit to grapple with how far the Second Amendment applies outside the context of the home.” The Court observed that two other circuits previously had held that the Second Amendment “indeed protects a general right to carry firearms in public for self-defense.” See Wrenn v. District of Columbia, 864 F.3d 650, 655 (D.C. Cir. 2017); Moore v. Madigan, 702 F.3d 933, 936-37 (7th Cir. 2012.). The Court remarked that the right to “bear” arms should protect something more than mere carrying incidental to keeping arms. The Court observed that, “While the Amendment’s guarantee of a right to ‘keep’ arms effectuates the core purpose of self-defense within the home, the separate right to ‘bear’ arms protects that core purpose outside the home.” After a comprehensive analysis of historical, contextual, and legal sources regarding what specific activities are protected by the Second Amendment, the Ninth Circuit concluded that the Second Amendment does encompass the “core” right to openly carry a firearm in public for self-defense purposes.

Having first determined that the right to open carry of firearms in public for self- defense was a fundamental right, the Court turned its analysis to an evaluation of the public interests advanced by the state’s restriction on that fundamental right. Here, the Court determined that Hawaii’s restriction on issuing permits to only those who protect life and property, and then only while in the actual performance of those duties, amounted to denying average citizens the fundamental right to carry a firearm in public for self-defense. In essence, the Court observed that only security guards could openly carry firearms under Hawaii’s regulations, and then only while working. The Court reasoned that, because this fundamental right is an individual one and Hawaii’s regulations prohibit individual citizens from exercising this right, the regulations could not withstand any level of judicial scrutiny. In essence, no governmental interest could justify this blanket restriction on the exercise of this fundamental right. Accordingly, the Court held that Section 134-9’s limitation on the open carry of firearms to those “engaged in the protection of life and property” violated the core of the Second Amendment and was therefore void. The Court stated that the County could not constitutionally enforce such a limitation on applicants for open carry licenses.

The Court then spent considerable time rebutting the dissent’s viewpoint that the Hawaii code withstood constitutional analysis under the intermediate level of judicial scrutiny.

The Court stated that it did not take lightly the problem of gun violence, which the State of Hawaii “´has understandably sought to fight . . . with every tool at its disposal.’” The Court further stated that it saw “nothing in our opinion that would prevent the state from regulating the right to bear arms, for the Second Amendment leaves the State ‘a variety of tools for combatting [the problem of gun violence], including some measures regulating handguns.’” Quoting Heller, 554 U.S. at 636 [Emphasis in original]. The Court remanded the case for further proceedings, finding that Young “has indeed stated a claim that section 134-9’s limitations on the issuance of open carry licenses violate the Second Amendment.”

For a more detailed discussion of this case, please see Client Alert Vol. 33, No. 22, available at www.jones-mayer.com.


POBRA statute of limitations accrual date not applicable at the point in time when a senior officer, who was not a person “authorized to initiate an investigation,” received evidence of misconduct. 

Daughtery v. City and County of San Francisco, 24 Cal. App. 5th 928 (1st Dist. 2018)

Facts: In 2011, a San Francisco public defender accused several San Francisco Police Department (“SFPD”) officers of criminal activities. The criminal unit of SFPD’s internal affairs division (“IAD-Crim”) began a criminal investigation in response. SFPD’s internal affairs division is separated into two fully autonomous units, each with their own police lieutenants: IAD-Crim and IAD-Admin. IAD-Crim handles investigations into potential criminal conduct by SFPD officers. IAD-Admin is responsible for disciplinary investigations. In matters requiring confidentiality or to otherwise protect the integrity of an ongoing criminal investigation, SFPD typically prevents the dissemination of criminal evidence to disciplinary investigators (or to the rest of SFPD) by establishing a “wall” between IAD-Crim and IAD-Admin.

Ultimately, the United States Attorney’s Office (“USAO”) led the criminal investigation into the matter, assisted by select members of IAD-Crim. At a June 2011 meeting, convened by the USAO and the FBI, IAD-Crim was represented by its supervising lieutenant Jerome DeFilippo and a few chosen members. Also in attendance were the captain to whom DeFilippo reported, and her immediate superior, the Deputy Chief of Staff. No IAD-Admin officers attended the meeting, nor ever became involved in or privy to the USAO-led criminal corruption investigation throughout its duration. At the meeting, the deputy chief, on behalf of the SFPD, agreed USAO would lead the single investigation and that IAD-Crim officers would maintain confidentiality throughout the investigation. The USAO also required SFPD to designate the highest ranking officer who would be privy to investigatory information. This designated person was not to disclose evidence to anyone of a higher rank, nor to anyone outside the group of investigators working on the case. Lieutenant DeFilippo was chosen for this role. DeFilippo and IAD-Crim officers assigned to work under him were not permitted to disclose information about the investigation to anyone outside of the authorized group, and signed nondisclosure agreements. DeFilippo was IAD-Crim’s supervising lieutenant from February 2011 to June 2013. He was succeeded by Lieutenant Michelle Jean, who supervised IAD-Crim from June 2013 to June 2015 and became aware of the confidentiality and nondisclosure expectations after she became IAD-Crim’s supervisory lieutenant.

During the USAO-led investigation, search warrants of the cell phone records of former SFPD Sergeant Ian Furminger—the key figure in the corruption scheme—led to the December 2012 discovery of racist, sexist, homophobic, and anti-Semitic text messages between Furminger and other SFPD officers. Furminger and a codefendant were ultimately convicted for conspiracy to commit theft, conspiracy against civil rights and wire fraud. Three days after the verdict, on December 8, 2014, the USAO released the text messages to IAD-Admin.

After IAD-Admin completed its investigation of the text messages, the chief of police issued disciplinary charges against respondents here in April 2015. One of the respondents, Rain Daugherty, filed a petition for writ of mandate and complaint for extraordinary relief, contending that the disciplinary charges were untimely and should consequently be rescinded. The remaining respondents joined in Daugherty’s petition. The trial court granted the writ petition and complaint, finding the one-year statute of limitations began to accrue in December 2012 when the misconduct was discovered, and thus, the investigation of respondents’ misconduct was not completed in a timely manner.

Held: After deciding that the trial court judge’s order could be appealed and that the trial court had proper jurisdiction to consider the petition, the California First District Court of Appeal turned to consideration of the statute of limitation issue.

The Court explained that under the Public Safety Officers Procedural Bill of Rights Act[36] (“POBRA”), “no punitive action may be taken against a public safety officer for any alleged act, omission, or other misconduct unless the investigation is completed within one year of ‘the public agency’s discovery by a person authorized to initiate an investigation of the allegation of an act, omission, or other misconduct,’ subject to certain statutory exceptions. ([Gov. Code section] 3304, subd. (d)(1).) One such exception provides that the one-year time period is tolled while the act, omission, or other alleged misconduct is also the ‘subject’ of a pending criminal investigation or prosecution. (Id., subd. (d)(2)(A).)” The Court observed that where evidence of misconduct arose in a criminal case, the Legislature intended that section 3304, subdivision (d), govern the statute of limitations’ accrual date and any applicable tolling periods.

Respondents argued that IAD-Crim’s supervisory lieutenant DeFilippo was a “person authorized to initiate an investigation” well before the text messages were released by the USAO because he was a superior officer who learned of the texts in December 2012 as part of the criminal investigation. The Court disagreed, finding that the power to designate persons authorized to initiate disciplinary investigations under Section 3304(d) belonged to the law enforcement agency; here, SFPD designated IAD-Admin officers as authorized to initiate investigations of misconduct by SFPD officers. IAD-Admin learned of the text messages in December 2014. Further, the SFPD had implemented a consistent policy of a “wall” between the two units where concerns of confidentiality and investigatory integrity arose.

Respondents also contended that SFPD’s General Order 1.06 provided authority to officers outside of IAD-Admin, including Lieutenant DeFilippo, to initiate investigations of misconduct. The Court explained that General Order 1.06 explains the duties and responsibilities of superior and commanding officers. It requires a “superior officer” to “[p]romptly report in writing any misconduct by subordinates and forward the report to their superiors.” Section I.A.4.a provides that any superior officer who becomes aware of possible misconduct by any member of his/her unit must notify the “senior-ranking officer” on duty at the unit and this senior-ranking officer shall “[r]emain personally responsible for the conduct of the matter until relieved of responsibility” and “[c]onduct an administrative investigation.” However, the Court found no evidence that the respondents were in DeFilippo’s unit, nor did respondents ever contend that they were.

As to misconduct found of officers in other units, General Order 1.06 provides: “When a superior officer becomes aware of possible misconduct by any member assigned to another unit, he/she shall … [¶] … [i]mmediately notify the senior-ranking officer on duty at the member’s unit. If the unit is closed, the commanding officer of the unit shall be notified at any time day or night. [¶] … The senior-ranking officer or commanding officer (as appropriate) shall be responsible for performing the steps outlined in Section a. above,” including the portion regarding the administrative investigation.

The Court determined that General Order 1.06 provided that, where alleged misconduct pertained to members of units other than Lieutenant DeFilippo’s, he was required to “notify” the senior-ranking officers of those members’ units and “report” the misconduct to his superiors, leaving the investigation of the misconduct to the affected senior-ranking officer or commanding officer of those other unit(s). The Court thus found that Lieutenant DeFilippo and, after her succession to IAD-Crim in June 2013, Lieutenant Jean, were not “authorized to initiate” an investigation into respondents’ text messaging misconduct in December 2012.

In addition, the Court found that, even if it accepted respondents’ contention that Lieutenant DeFilippo possessed the authority to initiate a POBRA investigation by reporting the text messaging misconduct pursuant to General Order 1.06, that authority was revoked when SFPD agreed to the confidentiality restrictions imposed by the USAO for its corruption investigation. The Court noted that SFPD’s command staff agreed to the USAO’s confidentiality requirements and DeFilippo’s role, long before the text messages were discovered. The USAO had mandated that “no violation of these confidentiality obligations would be tolerated,” and DeFilippo testified that USAO actually threatened to charge him if he released any information. The Court noted that the discovered text message evidence belonged to the federal investigation and were subject to a federal protective order that restricted their disclosure and use. The Court explained that it was not for DeFilippo or the SFPD to decide when the restriction no longer applied.

The First District thus concluded that the trial court erred in finding that the statute of limitations accrued in December 2012, when IAD-Crim, as part of the investigation headed by the USAO, learned of the text messages. December 2014 was the correct accrual date because that was when IAD-Admin received the text message records from the USAO and IAD-Crim. After receiving this information, IAD-Admin completed its investigation within five months and served disciplinary notices, well within the one-year period required by POBRA. Therefore, the Court concluded that respondents were timely notified of the proposed discipline by persons actually authorized to initiate the pertinent administrative investigations.

While its conclusions sufficiently supported reversal of the trial court’s ruling, the Court of Appeal next offered an alternate analysis supporting reversal.

Alternate Basis Supporting Timeliness of Disciplinary Charges

POBRA’s Section 3304, subdivision (d)(2)(A), provides, “If the act, omission, or other allegation of misconduct is also the subject of a criminal investigation or criminal prosecution, the time during which the criminal investigation or criminal prosecution is pending shall toll the one-year time period.” Citing Parra v. City and County of San Francisco[37] and Lucio v. City of Los Angeles[38] as relevant cases, the Court determined that respondents’ text messaging misconduct was a “subject” of the criminal investigation and prosecution within the meaning of section 3304(d)(2)(A).

The Court noted that the Furminger case was a criminal conspiracy case and the text messages were a critical investigative tool to aid in this effort because the investigators knew that Furminger, the central figure in the corruption scheme, conducted criminal activity using texts. Respondents’ text messages were obtained through search warrants of Furminger’s cell phone, and corruption investigators examined the text messages obtained by the search warrants for evidence of Furminger’s relationships, associates and accomplices. The Court observed that the tolling provision of Section 3304(d)(2)(A) focused on conduct and that respondents’ comfort level with Furminger as exhibited in the offensive language in their texts suggested the reasonable possibility that respondents were willing to engage in criminal conduct with Furminger. Essentially, the Court determined that though the text message misconduct was not the specific criminal action, it was nevertheless “also the subject” of a criminal investigation or prosecution.

Having concluded the text messaging misconduct was also a “subject” of a criminal investigation as per Section 3304(d)(2)(A), the Court thus found that the limitations period was tolled after the indictments and until the Furminger verdict. This was the period between December 2012, when IAD-Crim officers discovered the offensive text messages, and December 2014, when Furminger’s trial ended. At that point, tolling also ended, about two years in duration. Respondents were notified of the disciplinary charges by April 2015, well within one year of the Furminger verdict. The Court concluded Section 3304(d)(2)(A)’s tolling provision provide an alternative basis for finding that the disciplinary charges were timely.

Because either line of analysis supported reversal, the Court accordingly reversed and remanded the decision to the trial court.

For a more detailed discussion of this case, please see Client Alert Vol. 33, No. 23, available at www.jones-mayer.com.


Trial court error in barring assertion of a medical marijuana defense as a matter of law violated defendant’s constitutional right to present a defense. 

People v. Ahmed, 25 Cal. App. 5th 136 (1st Dist. 2018) 

Facts: The City of Livermore has a local ordinance, Livermore Municipal Code section 5.80, which states: “‘A medical marijuana dispensary shall not be established; operated, or maintained at any location within the city of Livermore.’” In January 2015, undercover officers bought a small quantity of marijuana from Ramin Ahmed, who had a business in Livermore selling medical marijuana products. Prior to the sale, Ahmed required the officers to sign a membership agreement and produce identification, state medical marijuana cards and physicians’ recommendations. In February, police searched Ahmed’s business and seized financial records, approximately $26,000 in cash, 18 pounds of marijuana, and 37 ounces of marijuana oils, wax and edibles. Ahmed’s bank records, obtained by search warrants, reflected multiple cash deposits of between $1,000 and $11,000 and several purchases for personal rather than business purposes. Ahmed was arrested and charged with two counts of possession of marijuana for sale, four counts of money laundering, and other counts.

The trial court, in a ruling prior to trial, relied primarily on City of Riverside v. Inland Empire Patients Health & Wellness Center, Inc.[39] (“Riverside”) in declaring that the medical marijuana defense under California’s Medical Marijuana Program[40] (“MMP”) was unavailable to Ahmed as a matter of law because Livermore Municipal Code section 5.80.020 prohibited commercial cannabis activity within city limits. Ramin Ahmed was convicted of possession of marijuana for sale, transportation of marijuana, and money laundering. He appealed.

Held: The trial court erred in barring Ahmed from asserting a medical marijuana defense.[41] The California First District Court of Appeal explained first that the MMP removed certain California state law obstacles from the ability of qualified patients to obtain and use marijuana for legitimate medical purposes. The trial court had ruled before trial that Ahmed was precluded by a Livermore statute from asserting a medical marijuana defense “as a matter of law.”

The First District acknowledged that the Riverside Court observed that “‘the MMP’s limited provisions neither expressly nor impliedly restrict or preempt the authority of individual local jurisdictions … to prohibit collective or cooperative medical marijuana activities within their own borders.’” However, the First District explained that “[n]othing in Riverside’s application of preemption principles support[ed] the trial court’s conclusion that a local ban on dispensaries abrogates the medical marijuana defense in a prosecution under state criminal law.” Moreover, “nothing in law or logic supports an extension of local government power over land use within its borders to, in effect, nullify a statutory defense to violations of state law… A city or county has no power to preempt state law.” The Court added that no language in the MMP even arguably suggested that the medical marijuana defense was available only to medical marijuana providers who were compliant with local ordinances.

Observing that the Constitution guarantees criminal defendants “‘a meaningful opportunity to present a complete defense,’”[42] the Court declared that “[t]his case exemplifies a deprivation of the right to assert a defense,” and “[i]t cannot be said on this record that the [trial court’s] refusal to permit Ahmed’s possible medical marijuana defense was harmless beyond a reasonable doubt.” Accordingly, the First Circuit reversed.

[1] U.S. Const., Art. VI, cl.2.

[2] Gregory v. Ashcroft, 501 U.S. 452 (1991).

[3] 8 U.S.C. section 1101 et seq.

[4] United States v. Arvizu, 534 U.S. 266 (1981).

[5] United States v. Valdes-Vega, 738 F.3d 1074 (9th Cir. 2013) (en banc).

[6] Ornelas v. United States, 517 U.S. 690, 699 (1996).

[7] Bell v. Wolfish, 441 U.S. 520 (1979).

[8] Florence v. Bd. of Chosen Freeholders, 566 U.S. 318 (2012).

[9] The BB gun looked similar to a rifle.

[10] “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”

[11] Paroline v. United States, 572 U.S. 434 (2014).

[12] 57 Cal. 4th 622 (2013).

[13] 153 Cal. App. 4th 1230 (2nd Dist. 2007).

[14] 2 Cal.4th 593 (1992).

[15] 203 Cal.App.4th 947 (2nd Dist. 2012).

[16] 17 Cal.App.5th 766 (1st Dist. 2017).

[17] 888 F.3d 1030 (9th Cir. 2018).

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

[19] 384 U.S. 436 (1966).

[20] 54 Cal.3d 140 (1991).

[21] 468 U.S. 897 (1984).

[22] 514 U.S. 1 (1995).

[23] United States v. Elliott, 322 F.3d 710, 715 (9th Cir. 2003).

[24] United States v. Crews, 502 F.3d 1130, 1135 (9th Cir. 2007).

[25] Lopez-Rodriguez v. Mukasey, 536 F.3d 1012, 1015 (9th Cir. 2008).

[26] United States v. Gorman, 859 F.3d 706, 718 (9th Cir. 2017).

[27] 436 U.S. 658 (1978).

[28] Maxwell v. Cty. of San Diego, 708 F.3d 1075, 1082 (9th Cir. 2013).

[29] Ashcroft v. al-Kidd, 563 U.S. 731, 743 (2011).

[30] L.W. v. Grubbs, 974 F.2d 119 (9th Cir. 1992).

[31] Kennedy v. City of Ridgefield, 439 F.3d 1055 (9th Cir. 2006).

[32] Munger v. City of Glasgow Police Dep’t, 227 F.3d 1082, 1086 (9th Cir. 2000).

[33] Hamby v. Hammond, 821 F.3d 1085 (9th Cir. 2016).

[34] 474 F.3d 634 (9th Cir. 2007).

[35] Brosseau v. Haugen, 543 U.S. 194, 199 (2004).

[36] Gov. Code, section 3300 et seq.

[37] 144 Cal.App.4th 977 (1st Dist. 2006).

[38] 169 Cal.App.4th 793 (2nd Dist. 2008).

[39] 56 Cal.4th 729 (2013).

[40] Health & Saf. Code, section 11362.5 et seq.

[41] As codified in Health & Saf. Code, section 11362.775, subd. (a).

[42] California v. Trombetta, 467 U.S. 479, 485 (1984).