Courtesy of James R. Touchstone, Esq.


  1. Electronic search probation condition imposed upon defendant who committed identity theft crime was reasonably related to preventing future criminality and did not violate Fourth Amendment right to privacy.

People v. Wright, 37 Cal. App. 5th 120 (2019)

Facts: Christopher Wright entered a plea of no contest to a felony violation of Penal Code section 530.5, subdivision (c)(3), acquiring personal identifying information with intent to defraud, in relation to the possession of about 60 credit cards, driver’s licenses, gift cards and Social Security cards in the names of other persons. The People requested that the trial court impose an electronic device search condition to help the probation department monitor whether Wright was violating the law. In support of the request, the People submitted the declaration of Detective Sean Smith, who was a member of the Sacramento Valley Hi Tech Crimes Task Force, an agency which investigated cybercrimes. Detective Smith stated that people who committed identity theft and fraud crimes commonly used electronic devices to research and purchase victim information and manufacture counterfeit credit cards, checks and identifications in order to commit identity theft and fraud crimes. Detective Smith explained it was thus necessary to search all content on a device and obtain password information in identity theft and fraud cases.

Over Wright’s objection, the trial court placed Wright on probation with various terms and conditions, including that Wright submit his electronic storage devices and e-mail/Internet accounts to search without a search warrant or probable cause. Wright appealed, arguing that this search condition was invalid under People v. Lent (1975) 15 Cal.3d 481, 486, overbroad, violated his privacy rights, violated the California Electronic Communications Privacy Act (Penal Code section 1546 et seq.), and violated his Fifth Amendment privilege against self-incrimination. Wright also asked that the electronic search condition be more narrowly tailored to fit the government’s purposes

Held: The California Third District Court of Appeal held that the electronic search condition was not invalid under Lent. The Court explained that probation is a privilege, not a right,[1] and that courts have broad discretion to impose probation conditions to foster rehabilitation and protect public safety.[2] Under Lent, a condition of probationis not invalid unless it has no relationship to the crime of which the offender was convicted, relates to conduct which is not in itself criminal, and requires or forbids conduct which is not reasonably related to future criminality. While the Court acknowledged that nothing in the record suggested that Wright used an electronic device for the charged crime, the Court found no Lent error because the electronic device search condition would enable his probation officer to ascertain whether he was complying with other conditions aimed at deterring future identity theft crimes.

The Third District also held that Wright’s Fourth Amendment privacy rights were not violated by the electronic device search condition because it was reasonable. The Court explained that under the Fourth Amendment and the parallel search and seizure clause of the California Constitution,[3] the reasonableness of particular searches and seizures is determined by a general balancing test weighing the gravity of the governmental interest or public concern served and the degree to which the challenged government conduct advances that concern against the intrusivenessof the interference with individual liberty. Hill v. National Collegiate Athletic Assn. (1994) 7 Cal.4th 1, 29-30. The Court noted that “a probationer who has been granted the privilege of probation on condition that he submit [himself] at any time to a warrantlesssearch may have no reasonable expectation of traditional Fourth Amendment protection.” People v. Mason (1971) 5 Cal.3d 759, 764-765. Against this diminished expectation of privacy, the Third District found the government’s significant interests in integrating defendants and protecting the community outweighed Wright’s limited expectation against government intrusion.

The Third Circuit also found no violation of the Fifth Amendment privilege against self-incrimination because nothing on the face of the condition authorized the use of any compelled statements against Wright in a criminal proceeding. The Court concluded that the California Electronic Communications Privacy Act (Penal Code section 1546 et seq.) was not violated because, in accepting probation, Wright expressly consented.

Modifying the order for reasons not relevant here, the Third Circuit Court of Appeal accordingly affirmed the order granting probation as modified.

A judge who dissented in part said the email/Internet search condition was overbroad, and he would remand the matter to the trial court “to craft more closely tailored, or more reasonable, e-search conditions.”

  • (1) Triable issues of fact remain regarding reasonableness of police officer’s use of deadly force; (2) no grant of summary judgment on qualified immunity grounds because it was well-established that use of deadly force in circumstances here was objectively unreasonable.

Nehad v. Browder, 2019 U.S. App. LEXIS 20590 (9th Cir. July 11, 2019)

Facts: In April 2015, an individual called 911 and told the emergency dispatcher that

a man who was currently in a back lot behind where the 911 caller worked had earlier threatened the caller with a knife. The police dispatcher put out a “Priority 1” call for a “417 (Threatening w[ith] weapon),” and indicated that a male in a back lot was threatening people with a knife. Responding to the call, San Diego Police Department Officer Neal Browder drove to the scene in his police cruiser.

Surveillance camera footage showed that Fridoon Nehad was walking down an alley before Browder arrived. Browder turned his cruiser from the street into the alley and turned on his high headlight beams, though he did not activate his car’s police lights or siren. A short time after he turned into the alley, Browder saw Nehad in the alley walking at a steady pace. Officer Browder confirmed with dispatch that Nehad matched the description of the person brandishing a knife. Browder stopped his vehicle and opened the driver’s side door. Nehad continued to walk down the alley toward Browder and the street. Browder’s vehicle advanced a short distance with the driver’s door open and then stopped again. Nehad continued advancing at his steady pace. Browder did not hear Nehad say anything, and did not see Nehad change his pace or make any sudden movements. Approximately twenty-eight seconds after pulling into the alley and eighteen seconds after opening his car door, Browder exited his vehicle. Browder did not activate his body camera.

What happened next was disputed. Browder did not remember identifying himself or saying anything to Nehad. One witness testified that Nehad stumbled forward in a nonaggressive way. This witness also said he did not hear Officer Browder identify himself as a police officer nor say anything at all. Another witness testified that he heard Browder say, “Stop, drop it” two or three times. The 911 reporting caller, who remained on the phone with dispatch when Browder arrived, said he heard Browder say “Stop, drop it” one time a “couple seconds” after Browder got out of the police vehicle.

Surveillance video showed Nehad slowed down a few moments after Browder exited his vehicle.

Less than five seconds after exiting his vehicle, Browder fired a single shot at Nehad in the chest, killing him. Nehad was approximately seventeen feet from Browder when he was shot.

Browder told police investigators who arrived at the scene a few hours later that he had not seen any weapons. The investigators did not find any weapons in the alley, and determined that Nehad had been carrying a metallic blue pen when Browder shot him.

Five days after the shooting, Browder and his attorney met with homicide investigators at a police station. They first reviewed surveillance video of the shooting in a police lieutenant’s office for approximately twenty minutes before investigators began Browder’s interview. During the interview, Browder stated that he first saw Nehad when Nehad was twenty-five to thirty feet from Browder’s cruiser and that Nehad was “aggressing” the car and “walking at a fast pace . . . right towards [the] car.” Browder also said, for the first time, that he had thought Nehad was carrying a knife, and that he had fired on Nehad because he thought Nehad was going to stab him.

Nehad’s parents and estate filed suit against Browder, the City of San Diego, and San Diego Chief of Police Shelley Zimmerman (collectively, “Appellees”), ultimately alleging 42 U.S.C. section 1983 claims for Fourth and Fourteenth Amendment violations and Monell[4] and supervisory liability, two civil rights claims under state statutes, and common law claims for assault and battery, negligence, and wrongful death.

The District Court granted summary judgment to the defendants on seven of the nine claims, excluding the common law claims for negligence and wrongful death. With regard to the Fourth Amendment claim, the District Court granted summary judgment because the Court found Browder’s use of force objectively reasonable. On the Fourteenth Amendment claim, the District Court grantedsummary judgment because the Court found no evidence that Browder acted with a purpose to harm unrelated to legitimate law enforcement objectives. The Court also concluded that Browder was entitled to qualified immunity because there was no clear precedent establishing that Browder’s use of deadly force would be considered excessive. An appeal followed.

Held: The Ninth Circuit Court of Appeals held that a jury could find that Browder’s use of deadly force was objectively unreasonable, and reversed on the Fourth Amendment claim. The Court explained whether a use of force is reasonable depends on the facts of the particular case, including whether the suspect posed an immediate threat to anyone, whether the suspect resisted or attempted to evade arrest, and the severity of the crime at issue. Graham v. Connor, 490 U.S. 386, 396 (1989). Only information known to the officer at the time the conduct occurred is relevant. Cty. of Los Angeles v. Mendez, 137 S. Ct. 1539, 1546-47 (2017); Glenn v. Washington Cty., 673 F.3d 864, 873 n.8 (9th Cir. 2011).

The Court of Appeals explained that the most important Graham factor is whether the suspect posed an immediate threat to anyone’s safety. Mattos v. Agarano, 661 F.3d 433, 441 (9th Cir. 2011) (en banc). The use of deadly force is only reasonable if a suspect “poses a significant threat of death or serious physical injury to the officer or others.” Gonzalez v. City of Anaheim, 747 F.3d 789, 793 (9th Cir. 2014) (emphasis added) (internal quotation omitted).

The Court explained that “summary judgment is not appropriate in [Section] 1983 deadly force cases that turn on the officer’s credibility that is genuinely in doubt.” Newmaker v. City of Fortuna, 842 F.3d 1108, 1116 (9th Cir. 2016). Browder told homicide investigators three hours after the shooting that he had not seen any weapons and had not expressed feeling under threat by Nehad. Five days later, after he had consulted with an attorney and reviewed surveillance footage inside a police station, Browder said for the first time that he thought Nehad had a knife, that Nehadwas “aggressing” the car, and that he thought Nehad was going to stab him. The Court found this discrepancy in Browder’s recount of the shooting, in addition to video, eyewitness, and expert evidence that indicated Browder’s later account of the shooting was mistaken, was enough to give rise to genuine doubts about Browder’s credibility.

The appellants’ police expert said that officers are trained to be able to distinguish pens from knives, Browder had “very sufficient time” to make the distinction here, and one of the homicide investigators testified that the lighting in the alley was sufficient to enable an observer to identify the color blue in the pen, even taking into account the distance between Browder and Nehad. The Court determined that whether Browder reasonably mistook a pen for a knife was a triable question of fact.

Moreover, even if Browder reasonably thought Nehad had a knife, the Court found that a jury could conclude that Nehad did not present a danger to anyone because: (1) an eyewitness testified that Nehad “wasn’t aggressive in nature” and “didn’t make any offensive motions;” (2) Browder testified that Nehad did not say anything, make any sudden movements, or move the supposed knife in any way; (3) Browder testified that he did not believe anyone else was under threat of immediate bodily harm when he shot Nehad; (4) When Browder fired on Nehad, Nehad was seventeen feet away from Browder and walking at what the appellees’ own expert described as a “relatively slow pace;” and, (5) the appellants’ expert explicitly said that Nehad “was actually not a lethal threat” to Browder.

Browder asserted that he had less than five seconds between the moment when he exited his vehicle and the point at which he shot Nehad. The Court acknowledged that officers must act “without the benefit of 20/20 hindsight,” and must often make “split-second judgments—in circumstances that are tense, uncertain, and rapidly evolving—about the amount of force that is necessary in a particular situation.” Gonzalez, 747 F.3d at 794 (quoting Graham, 490 U.S. at 396-97).

However, the Court observed here that Nehad was walking in the alley at a relatively slow pace without saying anything or threatening anyone in an area well-lit enough for someone to identify the color of a pen at a seventeen-foot distance, yet Browder – without identifying himself as a police officer or warning that he was about to shoot – drove his car several car lengths into the alley, opened his door, then drove further toward Nehad before exiting his vehicle. A witness and Browder himself could not remember Browder saying anything at all. The surveillance video showed Nehad continuing to walk toward Browder when the officer stepped out sideways from the protection of his vehicle door, closed the door, and fired less than two seconds later. Moreover, the appellants’ expert opined that Browder “squandered all the opportunities tactically” to determine what to do before shooting Nehad, adding that Browder had “all the time he wanted to take” to do so. The Court thus concluded that a reasonable factfinder could conclude that Browder unnecessarily created his own sense of urgency,[5] and that his poor judgment or lack of preparedness caused him or her to act unreasonably, “with undue haste.” Torres, 648 F.3d at 1126.

The Court noted that, in addition to whether Nehad posed a danger, other considerations are relevant to the reasonableness issue. The Court determined that a jury could conclude that the severity of Nehad’s reported crime of brandishing a knife in violation of Penal Code section 417, a misdemeanor, did not render Browder’s use of deadly force reasonable. The Court observed that while its decision in Miller v. Clark County[6] found that the government’s interest in apprehending felons was a factor “strongly” favoring the use of force, that case provided “little, if any, basis for a use of deadly force” here. Further, the Court determined that whether Nehad resisted arrest by ignoring Browder’s “Stop, drop it” command (one that Browder initially and witness Nelson did not recall occurring) was, at best, a disputed issue of fact as to reasonableness of Browder’s use of force.

The Court also noted that Browder failed to warn slow-walking Nehad to halt, failed to warn Nehad that failure to comply would result in the use of deadly force, and failed to identify himself as a police officer. Browder also failed to use a less lethal alternative like the taser, baton, or mace he carried. In fact, Browder admitted he never considered them. Thus, the Ninth Circuit concluded that a rational trier of fact could find that Browder’s use of deadly force was objectively unreasonable.

Turning to Nehad’s parents claim for violation of their Fourteenth Amendment interest in the companionship of their child, the Ninth Circuit explained: “Police action sufficiently shocks the conscience, and therefore violates substantive due process, if it is taken with either ‘(1) deliberate indifference or (2) a purpose to harm[,] unrelated to legitimate law enforcement objectives.’ A.D. v. California Highway Patrol, 712 F.3d 446, 453 (9th Cir. 2013) (internal quotation marks omitted).” The Court found that there was no evidence that Browder fired on Nehad for any reason other than self-defense, “notwithstanding the evidence that the use of force was unreasonable.” The Court therefore affirmed the District Court’s grant of summary judgment on the Fourteenth Amendment claim.

The Court next considered the qualified immunity issue, explaining that a government official’s entitlement to qualified immunity depends on “(1) whether there has been a violation of a constitutional right; and (2) whether that right was clearly established at the time of the officer’s alleged misconduct.” Lal v. California, 746 F.3d 1112, 1116 (9th Cir. 2014). The Court also noted that “when there are disputed factual issues that are necessary to a qualified immunity decision, these issues must first be determined by the jury before the court can rule on qualified immunity.” Morales v. Fry, 873 F.3d 817, 824 (9th Cir. 2017). As already discussed, the Court found many genuine disputes of material fact, which precluded a grant of summary judgment on qualified immunity.

Moreover, the Court found the prohibition on the use of deadly force under these circumstances was “clearly established” by 2015. For example, in 2001’s Deorle v. Rutherford, the Court had explained that it was sufficiently established that a police officer could not reasonably use a beanbag round on “an unarmed man who: has committed no serious offense, . . . has been given no warning of the imminent use of such a significant degree of force, poses no risk of flight, and presents no objectively reasonable threat to the safety of the officer or other individuals.” Deorle v. Rutherford, 272 F.3d 1272, 1285 (9th Cir. 2001). Therefore, the Court concluded here that Browder was not entitled to qualified immunity under the clearly established prong.

Regarding the appellants’ Monell claim, the Ninth Circuit disagreed with the District Court that the appellants presented no evidence that any policy or deficient training was a moving force behind the shooting. The Ninth Circuit noted that the appellants submitted evidence that: (1) 75% of the San Diego Police Department’s officer-involved shootings were avoidable; (2) the Nehad shooting was approved by the department, which took no action against Browder; and (3) the department looked the other way when officers use lethal force. Moreover, Chief Zimmerman explicitly affirmed that Browder’s shooting of Nehad “was the right thing to do,” and the department identified Browder as the victim of the incident and conducted his interview several days after the shooting, once Browder had watched the surveillance video with his lawyer. The Ninth Circuit concluded that the evidence was sufficient to create a triable issue at least as to the existence of an informal practice or policy and, thus, Monell and supervisory liability.

Finally, because the Court had concluded that whether Browder’s use of force was objectively reasonable was a disputed issue of fact, the Court reversed the District Court’s grant of summary judgment on all state law claims, and also reversed the on the appellants’ negligence and wrongful death claims because appellants did not have the opportunity to be properly heard.

In summary, the Ninth Circuit Court of Appeals reversed on the Fourth Amendment and state law claims, but affirmed on the Fourteenth Amendment claim.

  • Defendant’s statements to police regarding inability to perform field sobriety tests and refusal to submit to breath or blood tests were voluntary and not barred by Fifth Amendment.

People v. Cooper, 2019 Cal. App. LEXIS 648 (2nd Dist. July 18, 2019)

Facts: In January 2017, Sheila Cooper, driving her car at what one witness said was perhaps double the speed limit, crashed with severe impact into the rear of a car with a driver and a passenger inside. The collision launched the front car forward about 50 feet and into the other side of the intersection. Both the driver and passenger of the front car sustained long term injuries thereafter. The passenger in that car called 911. Several witnesses, including the two in the struck vehicle, noticed Cooper seemed to be under the influence of alcohol by the way she moved, spoke, and behaved.

Los Angeles Police Department Officers Samual Colwart and Nathan Grate arrived on the scene about 10 minutes after the crash. Officer Colwart observed that Cooper’s speech was slurred, her eyes were red and watery, she smelled of alcohol, and was stumbling. Cooper denied that she had been drinking and became emotional and uncooperative in response to Officer Colwart’s queries. When the officer asked if she was under a doctor’s care, Cooper replied, “Ain’t your business.”

The officers decided to take Cooper to a police station to administer field sobriety tests (“FSTs”) because she was quite upset and was pacing around at an active collision scene. At the station, Officer Colwart tried to conduct the FSTs on Cooper. Cooper’s estimate of 23 seconds on the Romberg test was out of the normal range. Cooper refused to do the walk-and-turn test because she said “her thighs were too big and her pants were too tight.” She refused to do the one-leg stand test, saying “she wouldn’t be able to do it because she had a disability.” With regards to the nature of her disability, Cooper told Colwart, “ain’t [your] business.” Colwart read Cooper the chemical admonition advising her that she had to submit to a breath test or blood test and the consequences of not doing so, but Cooper ultimately refused to take either test.

The People charged Cooper with driving under the influence of alcohol (DUI) within 10 years of a prior felony DUI conviction, and DUI causing injury within 10 years of another DUI offense. The People alleged Cooper had refused to submit to the mandatory chemical test, and she had suffered a prior strike conviction for criminal threats. Cooper filed a Miranda[7]motion before trial, objecting to trial admission of any evidence related to admissions she made while detained before being read Miranda advisements. The trial court denied the motion. A jury convicted Cooper of both counts and found the refusal allegation true. Cooper later admitted her prior convictions. She was sentenced to six years in the state prison, and additional days in custody for refusing to submit to a chemical test. Cooper appealed.

Held: Cooper argued on appeal that the trial court erred in not suppressing statements that she made at the police station. The California Second District Court of Appeal noted that the Fifth Amendment does not bar the admission of “[v]olunteered statements of any kind” (Miranda, 384 U.S. 436, 478), nor those otherwise not resulting from interrogation. (Rhode Island v. Innis (1980) 446 U.S. 291, 299–300.) Nontestimonial responses by a suspect—even though made in the course of custodial interrogation—are not subjectto the Miranda rule. (Pennsylvania v. Muniz (1990) 496 U.S. 582.) The United States Supreme Court has drawn “a distinction between ‘testimonial’ and ‘real or physical evidence’ for purposes of the privilege against self-incrimination.” (Id. at p. 591.) Thus, a suspect may be compelled to provide a blood sample (Schmerber v. California (1966) 384 U.S. 757); participate in a lineup and repeat a phrase provided by police (United States v. Wade (1967) 388 U.S. 218); provide a handwriting exemplar (Gilbert v. California (1967) 388 U.S. 263); and read a transcript to provide a voice exemplar (United States v. Dionisio (1973) 410 U.S. 1).

Muniz held that requiring a suspect to perform FSTs does not violate the Fifth Amendment because the evidence procured is of a physical nature rather than testimonial. The Second District here found that Muniz foreclosed Cooper’s argument as to most of her statements that she included in her brief because the FSTs were not interrogatory in nature and her statements were not in response to interrogation. Instead, Cooper volunteered her statements, claiming an inability to perform the tests and telling the officer the nature of the disability she cited was none of his business. The Court also concluded that Cooper’s statement that she didn’t want to take any more tests was also volunteered by her. Lastly, the Court found that any error by the trial court in denying Copper’s motion to suppress her statement estimating her Romberg time was harmless beyond a reasonable doubt, given her performance on the FSTs, her refusal to do other FSTs, her swaying movements, slurred speech, and odor of alcohol. Accordingly, the Second District Court of Appeal affirmed Cooper’s conviction.

  • When officers have reason to suspect that a crime is being perpetrated, or that an individual has been injured, a warrantless entry does not violate the Fourth Amendment.

People v. Rubio, 2019 Cal. App. LEXIS 653 (1st Dist. July 18, 2019)

Facts: In October 2016, East Palo Alto Police Department Sergeant Clint Simmont received an alert notifying him of a shooting in a high-crime neighborhood. Simmont later testified that he had responded to more murders within a block of that location than anywhere else in East Palo Alto. The alert indicated two separate bursts of gunfire had occurred at a particular address. First, five rounds came from the edge of the garage driveway area of 2400 Gonzaga, then one minute later came six rounds at “the edge of the driveway, near the sidewalk.”

Sergeant Simmont and four other officers arrived near the location where the shots were fired, parking 60-70 feet from the edge of the driveway. Officers asked people in the area if they heard gunfire, and the people pointed to the residence at 2400 Gonzaga. Officers approached the house, and at the top of the driveway near the garage found a spent shell casing from what Simmont believed might have been a semiautomatic weapon. A man Simmont knew to be verbally antagonistic emerged through a wooden gate in a fence separating the front and back yards shouting obscenities, and then assumed a combative position. The officers arrested him and put him in a patrol car. An officer located two more spent casings behind the open gate the man had passed through.

Sergeant Simmont pounded loudly on the door by the side of the garage and announced police presence four or five times, but there was no response. Sergeant Simmont heard movement inside that sounded like someone barricading the door. The officers spoke to several people at the front door of the residence and asked if anyone in the house had been shot. The father of defendant Adan Rubio said he did not know if anyone had been shot. Sergeant Simmont testified that he asked for and received permission from Rubio’s father to search the house, which the father denied in later testimony. The officers and the father went inside. The father said that his son Adan Rubio was inside the garage. Sergeant Simmont asked for permission to search the garage, to which the father responded, “Sure.”

As the father was getting the garage key, Adan Rubio emerged from the garage and closed the door to the garage, which automatically locked behind him. He approached the officers with his hands in his pockets, yelling for them to shoot him. Sergeant Simmont repeatedly ordered defendant to show his hands. Rubio eventually took his hands out of his pockets and in the same motion threw a key ring into the kitchen sink. Officers arrested Rubio and placed him in a patrol car.

After getting the key Rubio had thrown into the kitchen sink, the officers found it did not open the door to the garage. Sergeant Simmont testified later that he did not know what was on the other side of the door and that he had no reason to believe anyone had been shot, but he “didn’t have anything to rule that out, either.” Sergeant Simmont and another officer kicked the door open and entered the garage. Sergeant Simmont observed that the garage was actually a converted apartment. The officers did not find anyone inside the apartment, but did find “an explosive device on a shelf” and an operable .45 semiautomatic pistol on the shelf in an open closet.

The officers cleared the house of all occupants to secure the scene, and later a search warrant was obtained. The officers reentered the residence and executed the warrant, finding additional firearms, ammunition, and “a clear, rock-like substance” in a shot glass.

The San Mateo County District Attorney filed a six-count felony information, charging Rubio with various firearm and controlled substance offenses. A trial court denied Rubio’s motion to suppress the evidence found in his apartment, citing the emergency aid doctrine of the community caretaking exception. Thereafter, Rubio entered a plea of no contest and was convicted by plea to possession of a controlled substance with a firearm (Health & Saf. Code section 12305). Rubio was sentenced to three years of supervised probation, subject to conditions including nine months in the county jail or a residential substance abuse treatment program. He appealed.

Held: The California First District Court of Appeal explained that warrantless searches and seizures are presumptively unreasonable.[8] However, because “‘police officers are often forced to make split-second judgments—in circumstances that are tense, uncertain, and rapidly evolving,’”[9] “warrantless searches are allowed when the circumstances make it reasonable, within the meaning of the Fourth Amendment, to dispense with the warrant requirement.”[10] Rubio argued that the officers’ conduct here was not justified by any exception to the Fourth Amendment warrant requirement.

The First District explained that in the California Supreme Court case People v. Ray,[11] police officers responded to a report that the door to an apartment had been open all day, and that the inside of the home was in “shambles.” Officers arrived on the scene and determined a “‘95 percent’ likelihood they had encountered a burglary or similar situation.” (Id. at p. 468) The officers knocked several times and announced their presence, but received no response. Concerned that they might find people inside either in need of aid or burglarizing the home, the officers entered the home to conduct a security check.

The lead opinion in Ray concluded that the exception to the warrant requirement for officers performing community caretaking functions applied. As the lead opinion explained, “‘the community caretaker exception is only invoked when the police are not engaged in crime-solving activities.’” (Id. at p. 471.) “Under the community caretaking exception, circumstances short of a perceived emergency may justify a warrantless entry.” (Id. at p. 473.) “‘[T]he defining characteristic of community caretaking functions is that they are totally unrelated to the criminal investigation duties of the police.’” (Id. at p. 471.) Moreover, if an entry into a home is justified by the caretaking exception, there is no bar to the seizure of contraband that is readily observed upon entry into the home. (Id. at pp. 471–472; People v. Stamper, 106 Cal.App.3d 301, 305 (1st Dist. 1980).)

The Ray Court held that the officers’ concern justified entry to conduct a security check “‘to see if anyone inside might be injured, disabled, or unable to obtain help’ and to determine whether a burglary had been committed or was in progress.” (People v. Ray, supra, 21 Cal.4th at p. 468.) In Stamper, a case involving police responding to gunshots fired within a home, the First District held that “officers reasonably concluded that an injured person in need of prompt attention might be within the house. In such situations the Constitution does not requirethe delays of further investigation or warrant applications.” (People v. Stamper, supra, 106 Cal.App.3d at p. 306, italics in original.)

The First District here also found additional support for such reasoning in United States Supreme Court cases. In Ryburn v. Huff (2012) 565 U.S. 469 (per curiam), the United States Supreme Court, referring to Brigham City and other decisions, found that “the Fourth Amendment permits an officer to enter a residence if the officer has a reasonable basis for concluding that there is an imminent threat of violence.” (Ryburn, at p. 474.)

Here, the First District explained that there was no suggestion that Sergeant Simmont or the other officers who entered the home were looking for contraband or doing anything other than trying to make sure that there was not an injured victim or someone with a weapon who was then threatening injury to others inside the residence. The First District explained that although Sergeant Simmont and the officers were not aware of a specific, known individual who might be in danger or might pose an imminent threat to others, “the California Supreme Court’s decisions in both Ray and Stamper establish that if the circumstances suggest that such a person may be inside a dwelling, police may reasonably enter to determine whether in fact such a person is present.”

The Court concluded that, under the approach required by these authorities, the officers’ forced entry into Rubio’s garage apartment was reasonable under the circumstances here: (1) there were shots fired from multiple locations in the driveway; (2) a verbally aggressive person exited the gate of the residence and assumed a combative stance; (3) Sergeant Simmont recognized that this person did not live at the residence; (4) spent shell casings were found outside the residence; (5) the shell casings appeared to lead to a door going into the garage; (6) when he knocked and announced his presence, Sergeant Simmont heard movement inside that sounded like someone barricading the door; (7) the sounds led officers to believe someone may have been held captive on the other side of the door; (8) Rubio behaved erratically and refused to show his hands; and (9) the neighborhood was known as a high crime area. The Court therefore concluded that officer actions fell within the emergency aid doctrine and the community caretaking exception applied. Moreover, if the police had failed to investigate in these circumstances, it would have constituted a failure to properly discharge their duties as law enforcement officers. Accordingly, the First District Court of Appeal affirmed.

In her dissent, Justice Tucher said the majority stretched the scope of the emergency aid doctrine to allow intrusion into the home “based on only an unparticularized suspicion that an injured person may be inside.”

For a more detailed discussion of this case, please see Client Alert Vol. 34, No. 31, available at www.jones-mayer.com.

  • Exigent circumstances existed to justify government’s warrantless entry into defendant’s residence because it was reasonable to conclude that destruction of incriminating evidence was occurring.

United States v. Kazuyoshi Iwai, 2019 U.S. App. LEXIS 21899 (9th Cir. July 23, 2019)

Facts: In August 2015, the United States Postal Inspection Service intercepted a package from Las Vegas, Nevada, that was addressed to the condominium of Bryant Iwai. A search warrant was obtained to open the box after a narcotic detection dog alerted to the presence of a controlled substance in the package. The box contained roughly six pounds of methamphetamine, and other incriminating evidence.

DEA agents obtained another judicial authorization the following day to track a controlled delivery of the package to Iwai’s condominium building. Agents removed most of the methamphetamine and replaced it with a non-narcotic substitute, leaving behind only a small representative sample of the drug. They also put inside the package a GPS tracking device, which identified the location of the package, and contained a sensor which would signal the agents’ monitoring equipment when the package was opened.

The agents learned that Iwai’s residence was located in a multi-story condominium building that did not enable direct delivery of packages to a specific unit; instead packages were delivered for residents to a central location. The agents did not seek and obtain an anticipatory search warrant to enter Iwai’s residence because they thought they might not have requisite probable cause that the package would actually end up in Iwai’s unit since the package might be taken somewhere else. A postal inspector posing as a mail carrier left the package at the front desk with the manager after Iwai was notified of a package delivery.

Iwai retrieved the package after returning to the building later, and took the package into his unit. Agents surveilled outside. Hours later, the sensor activated, signaling the package had been opened inside Iwai’s unit. The agents knocked and announced their presence, but received no initial response. Then DEA Agent Richard Jones observed through the peephole some movement and heard sounds that suggested to the agent that Iwai was destroying evidence.

Agents then forced entry and found Iwai inside away from the package, which was unopened; the sensor had apparently malfunctioned. Agents saw in plain view zip lock bags containing what appeared to be methamphetamine powder and a gun. Iwai signed a consent form to search the residence, and was cooperative throughout. Agents found approximately 14 pounds of crystal methamphetamine, over $32,000, a digital scale, a ledger, and plastic bags.

Iwai moved to suppress all evidence obtained, but the District Court denied the motion. The District Court, considering the totality of the circumstances, held that the agents’ entry was justified to prevent the imminent destruction of evidence, that the subsequent seizure of objects in plain view was lawful, and that Iwai’s consent was voluntary. Iwai then entered a conditional guilty plea to conspiracy to possess and distribute methamphetamine, and possession of a firearm in furtherance of a drug trafficking crime, and subsequently appealed.

Held: The Ninth Circuit Court of Appeals explained initially that a warrantless search of a home is “presumptively unreasonable” because “the physical entry of the home is the chief evil against which the wording of the Fourth Amendment is directed.” Payton v. New York, 445 U.S. 573, 585-86 (1980) (quotations and citation omitted). This presumption is overcome only “when ‘“the exigencies of the situation” make the needs of law enforcement so compelling that [a] warrantless search is objectively reasonable under the Fourth Amendment.’“ Kentucky v. King, 563 U.S. 452, 460 (2011) (quoting Mincey v. Arizona, 437 U.S. 385, 394 (1978)). Preventing the imminent destruction of evidence is one such exigency, and exists when “officers, acting on probable cause and in good faith, reasonably believe from the totality of the circumstances that [] evidence or contraband will imminently be destroyed. . . .” United States v. Ojeda, 276 F.3d 486, 488 (9th Cir. 2002) (per curiam) (quoting United States v. Kunkler, 679 F.2d 187, 191-92 (9th Cir. 1982)).

Although the agents obtained a warrant to open the package and another judicial authorization to insert a tracking device and alarm, the Court found entry into Iwai’s residence was presumptively unreasonable because the agents did not seek a warrant to subsequently enter Iwai’s condominium to retrieve the package.

However, the Ninth Circuit concluded that exigent circumstances existed to provide an exception to the warrant requirement. The Court of Appeals observed that the lower court considered that six pounds of drugs had been found the day before in the package, the condo building’s package delivery setup precluded the agents from assuredly being delivered to Iwai’s unit, the agents had seen Iwai retrieve the package and take it up to his unit, the sensor had beeped, and Agent Jones saw and heard signs that suggested to him that destruction of evidence was in progress. Considering the totality of the circumstances, the lower court had credited the agents’ testimony and concluded that they reasonably believed that the imminent destruction of evidence existed to justify the agents’ entry. The Ninth Circuit also observed that there was no evidence to counter the conclusion that the agents were acting in good faith. Therefore, the Ninth Circuit determined that it was reasonable to surmise that destruction of evidence was happening and exigency arose at the time Agent Jones heard the suspicious sounds, and exigent circumstances justified the warrantless entry.

The Court further determined that, because agents entered lawfully, Iwai’s subsequent consent to search the unit was not tainted. The Court thus found the District Court did not err in denying Iwai’s motion to suppress, and accordingly affirmed.

In his dissent, Judge Bybee said that the search and seizure was unreasonable because the officers should haveobtained an anticipatory warrant; the officers should have sought a warrant once Iwai returned to his apartment with the package; and the officers lacked facts supporting exigent circumstances and, in any event, created the exigent circumstances when they violated the Fourth Amendment in their knock and announce at the apartment door.

  • Qualified immunity applies where the lack of voluntariness to enter plaintiff’s home was not so clearly established to police that officer would have known that plaintiff’s consent was not voluntary.

West v. City of Caldwell, 2019 U.S. App. LEXIS 22184 (9th Cir. July 25, 2019)

Facts: In August 2014, Shaniz West’s grandmother called 911 to report that West’s former boyfriend, Fabian Salinas, was in West’s house and might be threatening her with a BB gun. The grandmother also said West’s children were in the house and that Salinas was high on methamphetamine. Officers with the Caldwell, Idaho police department knew that Salinas was a gang member who had outstanding felony arrest warrants for several violent crimes. They also knew that Caldwell had recently driven his car straight at an officer’s patrol car vehicle, making the officer swerve off the road to avoid a collision. The police also believed Salinas had a pistol.

Four officers, including Officer Matthew Richardson, responded to the 911 call. After arriving at West’s house, they called West’s call without answer. The grandmother, reached by phone, repeated Salinas was in West’s house. After calling West’s sister, the sister also confirmed that she had seen Salinas in West’s house within the last 30 minutes, that he had a firearm that she thought was a BB gun, and that he was high on drugs. Richardson knockedon the front door but received no response.

The officers saw West walking toward her house. Officer Richardson asked if Salinas was in her house and West replied that he “might be.” Richardson told West that Salinas had a felony arrest warrant, so if Salinas was in the house and she did not tell the police, she could “get in trouble” for harboring a felon, and asked again if Salinas was inside. West then said Salinas was inside earlier when she left the house, but did not know if he was still there. West gave her consent for the officers to go inside her house and apprehend Salinas, and provided her front door key. West left thereafter.

The officers consulted a prosecutor who, after being informed about the situation including West’s consent, told the officers that they did not need to obtain a search warrant. The officers contacted the SWAT unit to request assistance in arresting a felon who was barricaded inside a house and who might be armed and on drugs. The SWAT team came up with a plan to seek to get Salinas out of the house without requiring SWAT team member entry, and then arrived at the house. The SWAT team made repeated announcements telling Salinas to come out, but Salinas did not emerge. Eventually, the team used shotguns to inject tear gas through the windows and garage door. Salinas did not appear. After 90 minutes, the team tried to enter using West’s front door key, but a chain lock prevented their entry. They entered the house by the back door which was accessible due to a hole created by the tear gun shots earlier. Salinas was not found in the house.

West and her children could not live in the house for two months due to the damage caused by the search, including tear-gas-saturated possessions and broken windows. The City of Caldwell paid for a hotel for three weeks and paid West $900 for her damaged personal property. Plaintiff then filed suit, seeking damages and alleging claims for unreasonable search, unreasonable seizure, and conversion. The District Court denied qualified immunity to Richardson and other officers, holding that the need for a warrant was clearly established. The defendants appealed.

Held: The Ninth Circuit Court of Appeals explained that police officers have qualified immunity for their official conduct unless (1) they violate a federal statutory or constitutional right and (2) that right was clearly established at the time of the challenged conduct. District of Columbia v. Wesby, 138 S. Ct. 577, 589 (2018). “Clearly established” means that existing law “placed the constitutionality of the officer’sconduct ‘beyond debate.’“ Id. (quoting Ashcroft v. al-Kidd, 563 U.S. 731, 741 (2011)). The Supreme Court has emphasized, especially in the Fourth Amendment context, that we may not “define clearly established law at a high level of generality.” Kisela v. Hughes, 138 S. Ct. 1148, 1152 (2018) (per curiam) (quoting City of San Francisco v. Sheehan, 135 S. Ct. 1765, 1776 (2015)). Instead, generally there must be a controlling case that “squarely governs the specific facts at issue.” City of Escondido v. Emmons, 139 S. Ct. 500, 503-04 (2019) (per curiam) (quoting Kisela, 138 S. Ct. at 1153, and Wesby, 138 S. Ct. at 590).

West argued on appeal that her consent was not voluntary because she felt threatened after Richardson told her that, if Salinas was in the house and she denied it, she could “get in trouble” for harboring a wanted felon. For its qualified immunity analysis, the Court assumed, without deciding, that West’s constitutional rights were violated, and therefore that her consent was assumed to be involuntary. The Court then proceeded to analyze whether, by August 2014, those rights were clearly established under the law.

The Ninth Circuit observed that the circumstances here included: the amount of time that passed between Richardson’s threat to arrest West and his request for consent; the fact that Officer Richardson walked away from West during this period before returning to West; West nodded her consent to Richardson’s request to get inside her house to arrest Salinas; West gave the officer her key before he asked for it; West was aware that Salinas was a wanted felon; and Richardson made no mention of arresting her if West withheld consent.

The Court explained that prior precedent must articulate “a constitutional rule specific enough to alert these deputies in this case that their particular conduct was unlawful”[12] to meet the “clearly established” prong of the qualified analysis. The Court held that given the circumstances, the lack of voluntariness was not so clearly established such that it would have been obvious to Richardson that West’s consent was not voluntary. Officer Richardson was therefore entitled to qualified immunity on that claim.

West also argued that even if her consent was voluntary, the scope of that consent was exceeded when the SWAT team shot tear gas into her house. Again, the Court assumed the scope was indeed exceeded. Nevertheless, the defendants were again entitled to qualified immunity because the Ninth Circuit found that no Supreme Court or Ninth Circuit case clearly established, as of August 2014, that the defendants exceeded the scope of consent. West had not expressed any limitation as to time or location within the house, or manner of entry. Moreover, the defendants tried to enter using the key West provided, but a chain lock blocked their entry.

The Court reminded that “the Supreme Court has warned us time and time again that we may not ‘define clearly established law at a high level of generality.’ Kisela, 138 S. Ct. at 1152.” The Court held that given that the defendantsthought they had permission to enter West’s house to apprehend a dangerous, potentially armed, and suicidal felon barricaded inside, it was not obvious, in the absence of a controlling precedent, that defendants exceeded the scope of West’s consent by causing the tear gas canisters to enter the house in an attempt to flush Salinas out into the open. Qualified immunity thus applied to the relevant officer defendants on this matter.

Addressing the reasonableness of defendants’ search, the Court held that given the unusual circumstances, the need for specificity of precedent in the Fourth Amendment context, and controlling cases establishing that officers can sometimes damage a home during a search without violating the occupant’s Fourth Amendment rights, this was not an obvious case in which to deny qualified immunity without any controlling precedent clearly establishing that defendants violated plaintiff’s rights. The Court therefore found the defendants were entitled to qualified immunity on this claim also.

Accordingly, the Ninth Circuit Court of Appeals held that the defendants in this case were entitled to qualified immunity because the Fourth Amendment rights assumed to have been violated were not clearly established by August 2014.

Dissenting in part, Judge Berzon stated that the officers relevant for the scope issue were not entitled to qualified immunity on the scope of consent claim because any “typical reasonable person,” including these officers, would have understood West’s communication of consent here as permitting a physical entry by actual persons only, in which officerswould try to find Salinas in the house and arrest him there, i.e. not entry using tear gas shotguns before entering.

  • Probationers do not enjoy the same liberties as law-abiding citizens, so condition permitting warrantless search of probationer’s cell phone is constitutional.

People v. Patton, 2019 Cal. App. LEXIS 676 (4th Dist. July 25, 2019)

Facts: In January 2018, San Diego Police Department officers responded to a report of a theft at a retail store. Upon arrival, they learned that cell phones and other electronic devices were stolen by several men. The officers found a fingerprint that was identified by a lab as belonging to Kayvon Patton. The store’s surveillance video confirmed that Patton was one of the men.

He was charged and pled guilty to grand theft of personal property (Penal Code section 487(a)) and was sentenced to three years of formal probation. Prior to sentencing, Patton told a probation officer that he sold one of the stolen phones and had stolen the devices so that he could buy drugs. The probation terms included a condition that required that Patton “submit person, vehicle, residence, property, personal effects, computers, and recordable media including electronic devices to search at any time with or without a warrant, and with or without reasonable cause, when required by [a probation officer] or law enforcement officer.” Patton appealed this condition, arguing the electronic device part of condition was unreasonable under People v. Lent (1975) 15 Cal.3d 481, and unconstitutionally overbroad.

Held: The California Fourth District Court of Appeal explained that a sentencing court has “broad discretion” to determine appropriate conditions of probation that facilitate rehabilitation and foster public safety. (People v. Carbajal (1995) 10 Cal.4th 1114, 1120.) Under Lent, a probation condition is generally valid unless it “‘“(1) has no relationship to the crime of which the offender was convicted, (2) relates to conduct which is not in itself criminal, and (3) requires or forbids conduct which is not reasonably related to future criminality … .” [Citation.]’ [Citation.] This test is conjunctive—all three prongs must be satisfied before a reviewing court will invalidate a probation term.” (People v. Olguin, (2008) 45 Cal.4th 375, 379, quoting Lent, supra, 15 Cal.3d at p. 486.)

The Court acknowledged the second Lent element was satisfied, but found that the first and third were not satisfied here. Patton said he stole cell phones and other electronic devices so he could buy drugs, and pleaded guilty to that. The Court found a direct and reasonable relationship between the electronic device search condition and both the crime of which Patton was convicted (thus satisfying the first Lent element) and the motivating reasons for his criminal behavior such that the condition would help to prevent his future criminality (satisfying the third Lent element).

Regarding Patton’s claim the condition was overbroad, the Court acknowledged the significant privacy rights implicated by the search of a person’s cell phone. However, the Court explained that an electronic device search condition allows probation officers to effectively monitor their probationers, ensuring that they comply with the conditions of their probation. Moreover, Patton had a diminished expectation of privacy as a probationer. Thus, the Court did not find the condition to be unconstitutionally overbroad on its face. The Fourth District thus concluded that the electronic device search condition was properly imposed, and accordingly affirmed.


  1. Fair Labor Standards Act’s definition of compensable work time, which excludes pre- and postwork activities, governed state correctional employees’ claims for failure to pay minimum wage over applicable wage order.

Stoetzl v. Dep’t of Human Res., 7 Cal. 5th 718 (2019)

Facts: State correctional employees filed suit against the State of California and several departments of the state government alleging they were entitled to additional compensation for time spent on pre- and postwork activities, which the courts referred to as “walk time” (though the phrase also referred to more activities than simply walking to and from a work post). “Entry-exit walk time” was defined by the courts in the case as the time a correctional employee spends after arriving at a prison’s outermost gate but before beginning the first activity the employee is employed to perform (along with similar time at the end of the employee’s work shift). “Duty-integrated walk time” was defined as the time a correctional employee spends after beginning the first activity the employee is employed to perform but before the employee arrives at his or her assignedwork post (plus similar time at the end of the employee’s work shift). The trial court separated the plaintiff class into two certified subclasses, one for supervisory employees whowere not represented by a union during the time period set forth in the class certification and the other for represented employees.

California’s Industrial Welfare Commission (IWC) has express authority to adopt regulations—called wage orders—governing wages, hours, and working conditions in the state of California. Wage orders are entitled to great deference, and have the dignity and force of statutory law. A wage order called Wage Order No. 4 governs wages, hours, and working conditions at issue for the rank-and-file employee occupations at issue here, among others.

The California Legislature possesses the ultimate authority to establish or revise the terms and conditions of state employment through legislative enactments, and the Legislature delegated to the Department of Human Resources (“CalHR”) express authority to adopt regulations governing the terms and conditions of state employment, including setting the salaries of state workers (Government Code section 19826) and defining their overtime (id., Sections 19843, 19844, 19845, 19849). CalHR has adopted the Pay Scale Manual (the “manual” or “Manual”), which sets forth salary ranges for thousands of job classifications and defines compensable worktime for purposes of calculating an employee’s right to regular and overtime compensation. The Manual’s definition is expressly based on the federal Fair Labor Standards Act’s (29 U.S.C. section 201 et seq.; “FLSA”) definition of compensable worktime. The FLSA, by its terms, excludes entry-exit walk time from coverage. Duty-integrated walk time falls squarely within the Manual’s definition of compensable worktime, but entry-exit walk time does not. Moreover, because the Manual comprehensively addresses the question of compensation for the unrepresented plaintiffs, it precludes compensation for any worktime that falls outside the scope of its definition. Therefore, insofar as the unrepresented plaintiffs are seeking compensation for entry-exit walk time, their claims must be rejected, according to the Supreme Court here.

The courts had to resolve this conflict between two regulatory schemes. Wage Order No. 4 regulates the minimum wage the state government must pay its rank-and-file employees, and it defines compensable worktime in a broad way that arguably includes both types of walk time at issue in this litigation. However, the Manual sets forth the regular and overtime compensation that the state government must pay to certain classes of its employees (including plaintiffs’ classes), and in so doing, it expressly adopts the FLSA’s narrower definition of compensable worktime, a definition that, by its terms, excludes entry-exit walk time.

The trial court ruled in favor of the defendants, finding the Manual’s FLSA-based definition excluding entry-exit walk time governed. The Court of Appeal reversed as to the unrepresented plaintiffs, and affirmed for the represented plaintiffs. The appellate court held that the broader definition from Wage Order No. 4 governed the state’s obligation to pay the unrepresented plaintiffs. The California Supreme Court granted both parties’ subsequent petitions for review.

Held: The California Supreme Court held that the represented plaintiffs had expressly agreed, by its engagement in the collective bargaining process, to a specific amount of compensation for duty-integrated walk time, and there was no allegation that the state failed to pay the agreed-upon amount. Moreover, the collective bargaining Memorandum of Understanding agreements that memorialized this agreement all provided that they constituted the entire understanding of the parties concerning matters contained therein, and consequently precluded other forms of compensation, such as compensation for entry-exit walk time. The agreements had been approved by the Legislature, and each approval was signed by the Governor and chaptered into law, thus becoming specific legislation applicable to the represented plaintiffs and superseding more general laws to the extent of any conflict. Thus, the Court found that the represented plaintiffs’ claims failed insofar as they sought additional compensation for either duty-integrated walk time or entry-exit walk time.

With regard to the subclass of unrepresented plaintiffs, the Supreme Court explained that the IWC was authorized to adopt general background rules governing employee wages and hours, but CalHR was the recipient of a more specific delegation, to establish salary ranges for state workers and to adopt, as appropriate, FLSA overtime standards for such workers. To the extent CalHR’s standards conflicted with the more generally applicable Wage Order No. 4 standards, they superseded them.[13] It followed, therefore, that the Manual’s narrower FLSA-based definition of compensable worktime governed the right of the unrepresented plaintiffs to compensation and that they were not entitled to compensation based on Wage Order No. 4’s broader definition of compensable worktime.

The Court concluded that they may be entitled toadditional compensation for duty-integrated walk time because the Court found the Manual’s definition applied. As mentioned earlier, duty-integrated walk time “falls squarely within that definition.” The Court explained that if the state did not take duty-integrated walk time into consideration when calculating the compensation owed to the unrepresented plaintiffs, then the unrepresented plaintiffs could be entitled to additional pay. However, entry-exit walk time does not fall within the Manual’s definition of compensable worktime. Moreover, because the Manual comprehensively addressed the question of compensation for the unrepresented plaintiffs, it precluded compensation for any worktime that falls outside the scope of its definition. The unrepresented plaintiffs were not entitled to compensation for entry-exit walk time, and the Court rejected their corresponding claims.

Accordingly, the Supreme Court affirmed the judgment of the Court of Appeal in part and reversed in part, and the case was remanded to the trial court for further proceedings.

Two justices dissented in part, disagreeing with the Court’s rejection of the represented plaintiffs’ and unrepresented plaintiffs’ minimum wage claims for entry-exit walk time. The dissent found the majority did not account for “our long history of deference to IWC wage orders and unnecessarily suggests that the Legislature’s delegation of authority to CalHR is enough to afford its manual the same dignity as IWC wage orders.”

  • Reasonable trier of fact could conclude supervisory employee intentionally created intolerable working conditions, and that a reasonable person faced with those conditions would have felt compelled to leave.

Galvan v. Dameron Hosp. Ass’n, 2019 Cal. App. LEXIS 643 (3rd Dist. June 20, 2019)

Facts: Shirley Galvan was a 54-year old registered nurse who had worked for Dameron Hospital Association (“Dameron”) for approximately 25 years, at the time of the events here. During the last six years of her employment there, she held the position of unit coordinator in the medical-surgical department. Galvan was born in the Philippines and immigrated to the United States. English is her second language and she has a strong accent. In 2011, Doreen Alvarez became the director of the medical-surgical and telemetry departments at Dameron Hospital and Galvan’s supervisor. Most of the unit coordinators in the two departments were also Filipino.

The appellate court took the following facts from the evidence papers presented in connection with the summary judgment motion mentioned later. In her first meeting with her unit coordinators, Alvarez criticized the unit coordinators, and said she was ready to “make a change.” Alvarez regularly insulted and humiliated them, particularly those coordinators who spoke English as a second language. She complained about the coordinators’ accents and their English skills, and said they needed to “go back to school” to learn how to read and write. As the treatment of the coordinators became progressively worse, Galvan felt increasing levels of stress and as a result became afraid to speak up at unit coordinator meetings.

To others, Alvarez said the unit coordinators made too much money, and complained to others that they made “much more” money than Alvarez did. Alvarez said they were too old, “stupid,” “dumb,” had been there too long, and referred to the need to “get lean” for an upcoming merger between Dameron and UC Davis Medical Center. Alvarez specified Galvan and other unit coordinators by name as those she wanted to “get rid of.” Some of these coordinators would later make formal complaints or file actions due to their treatment by Alvarez. In July 2012, Alvarez set up an EKG test for the unit coordinators that she intended for them to fail so that she could “get rid of them.” Galvan and other coordinators did fail, although Galvan passed her second attempt.

In August 2012, Galvan was informed by other employees that Galvan was one of the nurses that Alvarez was planning to terminate. According to Galvan, she “lost it,” called in sick the next day, and her doctor placed her on medical leave for stress and prescribed medication to calm her down. Her leave began on August 17, 2012 and extended several times through October 2013. In November 2012, Galvan was informed by a human resources specialist that Galvan’s job-protected leave was ending and she was being removed from her role in the particular location she had worked, and would need to seek alternative employment at the hospital. Galvan feared she would encounter the same harassment and intimidation she had before if she returned to the department in another role, and felt she was not qualified for a position in another department after 25 years in the medical-surgical department. She therefore did not apply for another role. In February 2014, Galvan was terminated.

Galvan filed an employee discrimination suit against Dameron and Alvarez (collectively, “defendants”), alleging that she was discriminated against and subjected to harassment by Alvarez based on her national origin and age, and that Dameron failed to take action to prevent it in violation of the California Fair Employment and Housing Act (“FEHA”) (Government Code section 12900 et seq.). The operative second amended complaint asserted causes of action for discrimination (Section 12940 (a); against Dameron), harassment (Section 12940 (j); against Dameron and Alvarez), failure to take all reasonable steps to prevent discrimination and harassment (Section 12940 (k); against Dameron), and wrongful termination in violation of public policy (against Dameron).

The defendants moved for summary judgment, which the trial court granted. The trial court found Galvan could not make prima facie showing of either discrimination or harassment, and that the other causes of action were derivative of the discrimination and harassment causes of action, and could not survive summary judgment. Galvan appealed.

Held: The California Third District Court of Appeal explained that under FEHA, it is unlawful for an employer, because of a protected classification, to discriminate against an employee “in compensation or in terms, conditions, or privileges of employment.” (Section 12940 (a).)

The Court of Appeal held that the trial court erred in granting summary judgment on Galvan’s discrimination cause of action. To establish a FEHA violation, one of the things a plaintiff must show is that he or she suffered an adverse employment action. The trial court found that Galvan failed to show that Dameron knew about Alvarez’s actions and failed to remedy them. Thus, she could not establish that she was “constructively terminated,” thereby suffering an adverse employment action. The trial court also found no “nexus between Alvarez’s alleged discriminatory conduct and Dameron’s actions.” On appeal, Galvan argued that the trial court erred in granting summary judgment on her discrimination cause of action because there were disputed factual issues about whether she was constructively discharged and whether Dameron acted with a discriminatory motive.

The Third District explained that “[c]onstructive discharge occurs when the employer’s conduct effectively forces an employee to resign. Although the employee may say, ‘I quit,’ the employment relationship is actually severed involuntarily by the employer’s acts, against the employee’s will. As a result, a constructive discharge is legally regarded as a firing rather than a resignation.” Turner v. Anheuser-Busch, Inc. (1994) 7 Cal.4th 1238, 1244–1245. An employee seeking to establish a constructive discharge must show that the employer either intentionally created or knowingly permitted the intolerable working conditions, and that the intent or knowledge must exist on the part of the employer or those persons who effectively represent the employer, including supervisory employees. (Turner, supra, 7 Cal.4th at p. 1251; italics kept.)

Here, the Court found readily that Alvarez was a supervisor, for FEHA purposes, who effectively represented Dameron, Galvan’s and Alvarez’s employer. Based on the evidence of Alvarez’s behavior, comments to the unit coordinators, and remarks to others about the unit coordinators, the Court determined that a reasonable trier of fact could conclude that Alvarez intentionally created the working conditions challenged here, and that a reasonable person in Galvan’s position would have felt compelled to go out on leave and not return.

The Court also concluded that Galvan provided sufficient evidence to allow a reasonable trier of fact to determine that Alvarez acted with a discriminatory motive, and that there was a nexus between Alvarez’s conduct and Galvan’s protected status under FEHA. Alvarez criticized the unit coordinators’ accents and their purportedly bad English skills, said they were stupid, made too much money, and were too old. Alvarez made such statements to not only Galvan, but to other unit coordinators, and to others employees Alvarez worked with.

The Third District also concluded that the trial court erred as to the harassment cause of action. Based on the facts above, the Court found Galvan presented evidence that would allow a reasonable trier of fact to find that Alvarez’s conduct was based on Galvan’s and the other Filipino and foreign-born unit coordinators’ national origin and age. Alvarez’s criticisms of the coordinators’ accents along with Alverez’ aforementioned statements sufficed to raise a triable issue of material fact as to whether Alvarez’s treatment of Galvan and the other Filipino and foreign-born unit coordinators was motivated by their national origin and age. The Court also held concluded that a reasonable trier of fact could conclude that the conduct complained of was sufficiently severe or pervasive to interfere with a reasonable employee’s work performance and seriously affect the psychological well-being of a reasonable employee. Thus, the Court found the trial court erred in granting summary judgment on Galvan’s harassment cause of action.

Accordingly, the Third District Court of Appeal reversed and remanded on these issues, directing the trial court to vacate its order granting the motion for summary judgment.


County’s fee for copies of public records reasonable where plaintiff failed to establish that “indirect costs” violated Government Code section 27366.

Cal. Pub. Records Research, Inc. v. Cnty. of Alameda, 2019 Cal. App. LEXIS 662 (1st Dist. July 22, 2019)

Facts: The County of Alameda’s Clerk-Recorder’s Office processes and maintains the County’s public records. Government Code section 27366 addresses a county’s exercise of its statutorily delegated discretion to set fees for copies of official records. Section 27366 provides that the fee “shall be set … in an amount necessary to recover the direct and indirect costs of providing the product or service.”

In June 2010, the County’s Board of Supervisors (the “County”) adopted an ordinance charging $3.50 per page for copies of official records from the Clerk-Recorder’s Office. There are a number of costs associated with this service, including the costs of storage and maintenance of recorded documents on microfilm, and the costs associated with digitalization, salaries and benefits of employees. In setting its new fee structure for providing copies, the County relied on fee studies conducted in 2009 and 2010 that assessed direct and indirect costs of copying records as components of the total cost of duplicating each page.

The County based its calculation of direct costs on the salary and benefits of the specific job role that most commonly performed the functions to provide copies of official record documents, including retrieving print requests, inputting data, and retrieving the document from the microfiche. The average direct salary cost to the County to make copies on a per page basis was calculated to be $1.42. The County also factored in the cost of paying benefits to these employees.

The indirect costs of providing copies included the salaries and benefits of administrative staff and management, services and supplies for the Clerk-Recorder’s Office, and “‘County Indirects,’” which included “costs to the Clerk-Recorder’s Office arising from other County departments.” Other indirect costs included the costs of “equipment maintenance, modular furniture, other professional services, data processing services and supplies, systems development supplies, alarm services, mail/postage charges, messenger services, county facility use charges, intra fund, and indirect costs from the county wide cost plan.” The County also included the cost of regular paper. Based on these direct and indirect costs, the County determined in 2010 that the total cost to copy a recorded document was calculated at $4.08 per page, or 58 cents more than the amount the County decided to charge for copies. Comparing fees charged by neighboring counties, which “ranged from $1.00 per page to $7.00 per page, the County’s determined that its $3.50 proposed rate fell “squarely within this range.”

In 2014, a non-profit that described itself as “seeking to reduce the costs of government and to provide education and information regarding governmental activities” filed a petition for a writ of mandate under Code of Civil Procedure section 1085. This organization, California Public Records Research, Inc. (“CPRR”), alleged the County’s $3.50 per page fee violated Section 27366 by not limiting fees for copies to an amount not exceeding direct and indirect costs.

In 2017, the trial court granted CPRR’s petition, finding the County’s fee of $3.50 per page was unlawful under Section 27366 as “arbitrary, capricious, or entirely lacking in evidentiary support.” The court statedthe County “did not exercise its discretion under a proper interpretation” of Section 27366. According to the court, the County’s indirect costs were “over inclusive” and did not “fairly reflect the county’s cost of providing the copies.” The County appealed.

Held: The California First District Court of Appeal explained that “[t]he arbitrary and capricious standard of review employed under Code of Civil Procedure section 1085 is more deferential to agency decisionmaking than the substantial evidence standard. … We use the arbitrary and capricious standard to review quasi-legislative decisions resulting from an agency’s exercise of its statutorily delegated policymaking discretion.” (American Coatings Assn. v. South Coast Air Quality Management Dist. (2012) 54 Cal.4th 446, 461–462.) On appeal, the County contended that it “did not abuse its discretion by enacting a fee schedule encompassing indirect costs authorized by Government Code section 27366.”

The First District explained that the key question here was what the Legislature meant by “indirect costs” in Section 27366. The First District explained that ‘“our fundamental task is ‘to ascertain the intent of the lawmakers so as to effectuate the purpose of the statute.’”‘ (Apple Inc. v. Superior Court (2013) 56 Cal.4th 128, 135.) “‘“We first examine the statutory language, giving it a plain and commonsense meaning.”‘” (City of San Jose v. Superior Court (2017) 2 Cal.5th 608, 616.) “‘“If the statutory language permits more than one reasonable interpretation, courts may consider other aids, such as the statute’s purpose, legislative history, and public policy.”‘” (Id. at pp. 616–617.) “‘When a statute is capable of more than one construction, “‘[w]e must … give the provision a reasonable and commonsense interpretation consistent with the apparent purpose and intention of the lawmakers … .’”‘” (Gattuso v. Harte-Hanks Shoppers, Inc. (2007) 42 Cal.4th 554, 567.)

The Court noted that published Court of Appeal decisions differed on the meaning of “indirect costs.” In California Public Records Research, Inc. v. County of Stanislaus,[14] the Fifth District Court of Appeal determined that the meaning of “indirect costs” should be determined “by a general test that requires such costs to be reasonably attributed to (i.e., reasonably related to) providing copies and excludes costs that cannot be reasonably attributed to the service of providing copies.” However, the Third District Court of Appeal interpreted “indirect costs” more generously in California Public Records Research, Inc. v. County of Yolo.[15] The Third District held that “the term ‘indirect costs’ has an established and generally accepted meaning in the context of governmental accounting and fee setting legislation, and includes overhead and operating costs not specifically associated with the production of copies.” (Id. at p. 174.)

The trial court here determined the narrower Stanislaus standard applied, i.e., “a county’s copying fees must fairly reflect the county’s cost of providing the copies.” Based on this standard, the trial court found the County’s determination of indirect costs unreasonably “over inclusive” and not fairly reflective of the county’s cost of providing the copies.

Enacted in 1947, Section 27366 was amended in 1993 to repeal provisions which set certain recorder fees which would thereby allow county recorder fees to be directly proportional to the cost of providing the service. In their legislative deliberations during the amendment process, the California Senate and Assembly considered Section 27366’s similar language to Government Code section 54985. Section 54985 provides in part that “a county board of supervisors shall have the authority to increase or decrease the fee or charge, that is otherwise authorized to be levied by another provision of law, in the amount reasonably necessary to recover the cost of providing any product or service or the cost of enforcing any regulation for which the fee or charge is levied. The fee or charge may reflect the average cost of providing any product or service or enforcing any regulation. Indirect costs that may be reflected in the cost of providing any product or service or the cost of enforcing any regulation shall be limited to those items that are included in the federal Office of Management and Budget Circular A-87 on January 1, 1984.” (Section 54985 (a), italics added.)

Ultimately, the Legislature amended the language of Section 27366 in 1993. Like Section 54985, Section 27366 now provides the board of supervisors shall set the fee for copiesof official records “in an amount necessary to recover the direct and indirect costs of providing the product or service or the cost of enforcing any regulation for which the fee or charge is levied.” However, the First District explained that it was significant that the Legislature did not in the amended version of Section 27366 carry over the provision that limited indirect costs to those items that included in the OMB Circular, in contrast to the text of Section 54985(a).

The First District explained that “[w]here the Legislature omits a particular provision in a later enactment related to the same subject matter, such deliberate omission indicates a different intention which may not be supplanted in the process of judicial construction.” (Kaiser Steel Corp. v. County of Solano (1979) 90 Cal.App.3d 662, 667.) The Court concluded that by omitting any reference to the OMB Circular in the amended version of Section 27366, the Legislature intended to allow counties to recover “indirect costs” that were not limited to the items listed in the OMB Circular.

Therefore, the First District agreed with the Yolo court that “[S]ection 27366 authorizes … [counties] to consider a wider range of indirect costs than [S]ection 54985. … [T]he overall statutory scheme suggests the Legislature intended to give boards of supervisors greater flexibility in identifying indirect costs associated with the production of copies.” (Yolo, supra, 4 Cal.App.5th at p. 173.) Applying this interpretation of Section 27366 and based on this understanding of the section’s legislative history, the First District concluded that it was reasonable for the County to charge a fee for copies of official records that sought to recover costs beyond those directly associated with making copies.

CPRR argued that the County used the OMB Circular to calculate indirect costs. The First District explained that if the County’s calculation of indirect costs complied with this more restrictive federal standard, the County’s ordinance did not violate Section 27366. The Legislature gave counties flexibility to go beyond indirect costs as defined in the Circular, but counties were not required to do so; they had the choice. Thus, the First District found that CPRR had failed to establish that the County’s calculation of indirect costs violated Section 27366.

The Court also found that the County’s ordinance charging $3.50 per page was not “arbitrary, capricious, or entirely lacking in evidentiary support” because the County demonstrated that it complied with applicable accounting standards and that it based its decision on fee studies and the average length of documents requested, which indicated that the fees charged to customers using both methods were comparable.

Accordingly, the California First District Court of Appeal reversed the order granting the petition.

For a more detailed discussion of this case, please see Client Alert Vol. 34, No. 29, available at www.jones-mayer.com.


Warrantless seizure of firearms did not violate the Fourth or Second Amendments.

Rodriguez v. City of San Jose, 2019 U.S. App. LEXIS 21897 (9th Cir. July 23, 2019)

Facts: Lori Rodriguez called 911 late one night in January 2013 to request that the San Jose Police Department (the “Department”) conduct a welfare check on her husband, Edward, who had mental health problems. Department officers had visited the Rodriguez home on previous occasions in response to Lori’s prior calls requesting assistance due to Edward’s mental health problems. San Jose Police Department Officer Steven Valentine and other responding officers learned that there were guns in the home before they arrived.

Upon arrival, Officer Valentine found Edward ranting that he was being watched by the CIA, the army, and others. Edward mentioned “[s]hooting up schools” and his “gun safe full of guns,” and tried to injure himself in response to an officer’s query. Under California Welfare & Institutions Code section 5150, if an officer has probable cause to believe that a person is a danger to himself or another because of a mental health disorder, the officer may take the person into custody and place him in a medical facility for 72-hour treatment and evaluation. The officers decided that Edward was having an acute mental health crisis that made him a danger to himself and others. The officers seized and detained Edward under Section 5150 for a mental health evaluation. Edward was placed in restraints in an ambulance for transport to a nearby hospital for an evaluation. In the ambulance, Edward repeatedly broke the restraints holding him to the gurney.

After Edward’s removal, Lori confirmed to the officers that there were firearms in the home in a gun safe. California Welfare & Institutions Code section 8102(a) requires law enforcement officers to confiscate any firearm or other deadly weapon that is owned, possessed, or otherwise controlled by an individual who has been detained under Section 5150. Officer Valentine informed Lori that he would have to confiscate the guns, pursuant to Section 8102. Lori provided keys and a combination code for the safe. Inside the safe, the officers found twelve firearms, including handguns, shotguns, and semi-automatic rifles. One of the firearms was a personal handgun registered to Lori alone, which she had obtained before marrying Edward. The other eleven were either unregistered or registered to Edward. Lori specifically objected to the removal of her personal handgun, but the officers confiscated it along with the other eleven firearms.

Edward was evaluated at the hospital and determined to be a danger to himself, and was therefore admitted. He was discharged approximately one week later.

The City of San Jose filed a petition in California Superior Court under California Welfare & Institutions Code section 8102(c), seeking an order of forfeiture based on a determination that the guns’ return would likely endanger Edward or others. Lori objected, asserting a violation of her Second Amendment rights due to her personal ownership of the personal handgun and asserting community property ownership of the other firearms. Lori also represented to the court that Edward would not have access to the firearms if returned because the guns would be secured in her gun safe and Edward would not have access to the firearms because Lori had changed the combination code. The Superior Court granted the City’s petition. After Lori’s subsequent appeal, the California Court of Appeal affirmed.

Lori changed the registration and ownership so that she was named as the sole owner of all twelve guns and obtained gun release clearances from the California Department of Justice. However, the City still denied Lori’s request to return the guns.

Lori sued the City, the Department, and Officer Valentine (“Defendants”) under 42 U.S.C. section 1983 in the United States District Court for the Northern District of California, alleging violations of Lori’s Second and Fourth Amendment rights, among others. Lori was joined by two gun rights organizations as co-plaintiffs in her suit. The District Court granted summary judgment to Defendants. Lori appealed.

                                                                                                                                                                                                  Held: The Ninth Circuit Court of Appeals first addressed Lori’s Second Amendment claim that the seizure and retention of Lori’s firearms violated her right to keep and bear arms. Noting that the California trial court and the state appellate court had both addressed Lori’s Second Amendment claim, the Ninth Circuit explained that the United States Constitution provides that “Full Faith and Credit shall be given in each State to the public … judicial Proceedings of every other State.” U.S. Const. art. IV, section 1. As implemented under 28 U.S.C. section 1738, federal courts must “give to a state-court judgment the same preclusive effect as would be given that judgment under the law of the State in which the judgment was rendered.” Migra v. Warren City Sch. Dist. Bd. of Educ., 465 U.S. 75, 81 (1984). This requirement has equal force in cases brought under 42 U.S.C. section 1983. See Allen v. McCurry, 449 U.S. 90, 97-98 (1980).

The Court explained that “[i]ssue preclusion … bars successive litigation of an issue of fact or law actually litigated and resolved in a valid court determination essential to the prior judgment, even if the issue recurs in the context of a different claim.” White v. City of Pasadena, 671 F.3d 918, 926 (9th Cir. 2012) (quoting Taylor v. Sturgell, 553 U.S. 880, 892 (2008)). The Ninth Circuit explained that it would consider preclusion sua sponte, “[g]iven the significant public interests in avoiding a result inconsistent with the California Court of Appeal’s decision on an important constitutional question and in not wasting judicial resources on issues that have already been decided by two levels of state courts.”

The Ninth Circuit held that the California Court of Appeal had considered and rejected a Second Amendment argument identical to the one before it presently and that the state Court of Appeal’s decision was a final decision on the merits. The Ninth Circuit rejected Lori’s contention that her subsequent re-registration of the guns as separate property and the California Department of Justice’s ownership clearance were changes that affected the state court’s Second Amendment analysis. The Ninth Circuit stated that the California Court of Appeal had expressly rejected Lori’s argument that refusal to return the firearms despite her promise to secure the firearms in a gun safe was a violation of her Second Amendment rights. Finding that Lori’s exclusive ownership was irrelevant for preclusion purposes, the Ninth Circuit explained that the state court had already assumed Lori’s ownership interest under California’s community property laws, and must have considered Lori’s exclusive ownership of her personal handgun given that it was undisputed that the handgun always had been her separate property. Thus, the Ninth Circuit explained, the state court must have considered Lori’s exclusive ownership of that handgun as part of its analysis and determined that ownership did not affect the outcome under the Second Amendment.

Accordingly, the Ninth Circuit held that Lori’s Second Amendment claim was barred by issue preclusion under California law, and affirmed judgment for Defendants on Lori’s Second Amendment claim without additional analysis.

The Court then turned its analysis to Lori’s Fourth Amendment claim. Lori contended that the officers violated her Fourth Amendment rights when they confiscated her firearms without a warrant on the night of Edward’s hospitalization. However, the Ninth Circuit held that an exception to the warrant requirement did apply here, and rejected Lori’s claim.

Specifically, the Ninth Circuit explained that the Supreme Court has recognized that police have a “community caretaking function,” which refers to a category of police activity relating to the protection of public health and safety. The community caretaking function is one that is “totally divorced from the detection, investigation, or acquisition of evidence relating to the violation of a criminal statute.” Cady v. Dombrowski, 413 U.S. 433, 441 (1973). The Ninth Circuit explained that it had previously recognized two types of police action in which an officer may conduct a warrantless search or seizure when acting within the community caretaking function: (1) home entries to investigate safety or medical emergencies (otherwise known as the “emergency exception”), and (2) impoundments of hazardous vehicles.

The emergency exception authorizes a warrantless home entry where officers “ha[ve] an objectively reasonable basis for concluding that there [i]s an immediate need to protect others or themselves from serious harm; and [that] the search’s scope and manner [a]re reasonable to meet the need.” United States v. Snipe, 515 F.3d 947, 952 (9th Cir. 2008). The Court found the same factors at issue in the context of emergency exception home entries and vehicle impoundments, specifically: (1) the public safety interest; (2) the urgency of that public interest; and (3) the individual property, liberty, and privacy interests. The Court said that these factors must be balanced, based on all of the facts available to an objectively reasonable officer, when asking whether a seizure of a firearm falls within an exception to the warrant requirement.

Analyzing the balance of interests in the case here, the Ninth Circuit acknowledged the seizure of the firearms did affect a serious private interest in personal property kept in the home, but the private interest was counterbalanced by a substantial public safety interest in ensuring that the guns would not be available to Edward should he return from the hospital. The Court reminded that San Jose police had been to the Rodriguez house before because of Edward’s erratic behavior, and Edward’s behavior on the day the firearms were confiscated included paranoid ranting and mentioning shooting up schools while specifically referencing the guns in the safe. A reasonable police officer would, the Court said, have been “deeply concerned” by the prospect that Edward would have access to a firearm in the near future.

With significant private and public safety interests countering each other, the Court explained that the urgency of the public safety interest was the key consideration in deciding whether the seizure here was reasonable. The Court held that the urgency of the situation was sufficient to outweigh the significant privacy interest and justified the seizure of the firearms. The Court noted that the officers had no idea when Edward would return from the hospital, or if the hospital staff would even admit him in the first place. Thus, he could have returned to the home at any time, perhaps even before a warrant could be obtained. Even if Lori tried to prevent Edward from accessing the safe upon his return, it was reasonable to believe that the 400-pound Edward could have overpowered Lori to get to the guns. Urgency was thus paramount, and justified seizure of the firearms. The emergency exception applied.

The Court also affirmed summary judgment on the remaining claims. Accordingly, the Ninth Circuit affirmed.

For a more detailed discussion of this case, please see Client Alert Vol. 34, No. 30, available at www.jones-mayer.com.


The DOJ’s inclusion of immigration-related scoring factors in implementing the COPS grant was constitutional and within its statutory authority.

City of L.A. v. Barr, 2019 U.S. App. LEXIS 20706 (9th Cir. July 12, 2019)

Facts: Congress enacted the Violent Crime Control and Law Enforcement Act[16] (“VCCLEA”) in 1994. The goal of the VCCLEA is to provide a range of federal assistance to state and local law enforcement. The Public Safety Partnership and Community Policing Act of 1994[17] (the “Act”), enacted as part of the VCCLEA, authorizes the U.S. Department of Justice’s (“DOJ”) to administer a competitive grant program that allocates a limited pool of funds to state and local applicants whose applications are approved by the Attorney General. The Community Oriented Policing Services (“COPS”) grant program is codified at 34 U.S.C. sections 10381 to 10389.

The COPS grant program provides the DOJ with broad discretion to allocate grants and administer the program for twenty-three different purposes specified in Section 10381(b). Each of these purposes generally is tied to the goal of enhancing the crime prevention function of state and local law enforcement through working with the community. The DOJ is authorized to “promulgate regulations and guidelines to carry out”[18] the grant program, and can prescribe the required form and content of grant applications through regulations or guidelines.

Section 10381(c)(1) permits the DOJ to give “preferential consideration, where feasible,” on specified grounds. The DOJ may give preferential treatment to a state that has enacted certain laws designed to combat human trafficking, for example. Sections 10381(c)(2), (3)

Congress has regularly made appropriations for grants administered under this statute. The DOJ has determined that Congress intended these appropriations to be used for two of the twenty-three purposes set forth in Section 10381: (1) rehiring law enforcement officers laid off due to budget reductions for deployment in community-oriented policing,[19] and (2) “to hire and train new, additional career law enforcement officers for deployment in community-oriented policing across the Nation.”[20]

Grant Application and Application Guidelines

Within its broad discretion, the DOJ developed combined guidelines and an application form for those seeking to apply for a grant to hire or rehire officers for community-oriented policing. See COPS Office Application Attachment to SF-424 (“Application Guidelines”). The Application Guidelines define “community policing” as “a philosophy that promotes organizational strategies that support the systematic use of partnerships and problem-solving techniques to proactively address the immediate conditions that give rise to public safety issues such as crime, social disorder, and fear of crime.”

The Application Guidelines contain questions and instructions that allow an applicant to explain why it is seeking a grant and why it is best qualified to receive one. One such instruction requires that an applicant specify its law enforcement and community policing strategy, including a “crime and disorder problem/focus area.” The applicant must pick one of eight focus areas: “illegal immigrations,” “child and youth safety focus,” “drug abuse education, prevention and intervention,” “homeland security problems,” “nonviolent crime problems and quality of life policing,” “building trust and respect,” “traffic/pedestrian safety problems,” and “violent crimes problems.” The Application Guidelines for the illegal immigration focus area states – “Please specify your focus on partnering with the federal law enforcement to address illegal immigration for information sharing, [§] 287(g) partnerships, task forces and honoring detainers.”[21]

Points Scoring System

The DOJ evaluates and scores the submitted applications, then awards grant funds to the highest scoring applicants. In 2017, the DOJgave additional points to applicants that focused on the federal priority areas of homeland security, violent crime, and illegal immigration. An applicant could also in 2017 choose to receive additional points by submitting a “Certification of Illegal Immigration Cooperation” (the “Certification”) in which the applicant agreed that (1) the applicant will implement rules, regulations, or practices ensuring DHS personnel access to the applicant’s correctional or detention facilities in order to meet with an alien, and (2) the applicant will implement rules, regulations, policies, or practices to ensure that the entity’s correctional or detention facilities provide notice “as early as practicable (at least 48 hours, where possible) to DHS regarding the scheduled release” of an alien in custody.

2017 Grant Cycle and Los Angeles Application

DOJ received more requests for funding than it was able to grant in the 2017 grant cycle. While applicants requested almost $410 million, Congress had allocated roughly $98.5 million in grant funding. A total of 90 large jurisdictions and 1,029 small jurisdictions applied. DOJ awarded grant funds to 30 large jurisdictions and 149 small jurisdictions. An applicantdid not need to select the illegal immigration focus or submit the Certification to receive funds. Of the seven applicants that chose illegal immigration as a focus area, only one large jurisdiction and one small jurisdiction received an award. Of the successful applicants, only 19 of the 30 large jurisdictions and 124 of the 149 small jurisdictions received bonus points for submitting the Certification.

Los Angeles submitted an application for COPS funding in 2017 but did not achieve a high enough score and was not successful in securing any funding. Los Angeles chose “building trust and respect” as its focus area and chose not to submit the Certification.

In September 2017, Los Angeles filed a complaint to enjoin DOJ’s practice of awarding points to applicants that chose the illegal immigration focus area and to applicants that completed the Certification. Los Angeles argued that these two elements of DOJ’s scoring system were unlawful because they (1) violated the United States Constitution’s Spending Clause, (2) violated constitutional principles of separation of powers and exceed DOJ’s lawful authority, and (3) were arbitrary and capricious under the Administrative Procedure Act. The District Court agreed on each of the city’s claims, and entered a permanent injunction against the challenged practices. The DOJ appealed.

                                                                                                                                                                                                  Held: On the legal merits, the Court explained that neither choosing the illegal immigration focus area nor submitting the Certification are prerequisites to receiving COPS grant funding, and many applicants who received grants did not make these illegal-immigration-related choices. Moreover, a number of applicants who chose the illegal immigration focus area or submitted the Certification did not receive a grant. The Ninth Circuit then addressed each of Los Angeles’s three claims challenging DOJ’s points system pertaining to the illegal immigration focus area and the Certification.

Spending Clause Claim

The Court explained that the Spending Clause[22] empowers Congress “to grant federal funds to the States, and may condition such a grant upon the States’ ‘taking certain actions that Congress could not require them to take.’” Nat’l Fed’n of Indep. Bus. v. Sebelius, 567 U.S. 519, 576 (2012) (“NFIB”) (quoting Coll. Sav. Bank v. Fla. Prepaid Postsecondary Educ. Expense Bd., 527 U.S. 666, 686 (1999)). Although Congress has broad power to attach conditions to the receipt of federal funds, the power is not unlimited. South Dakota v. Dole, 483 U.S. 203, 207 (1987). First, “[t]he exercise of the spending power must be in pursuit of the general welfare.” Id. (internal quotation marks omitted). Second, Congress must impose such conditions in an unambiguous manner that enables the States “to exercise their choice knowingly, cognizant of the consequences of their participation.” Id. (alteration in original; internal citation omitted).

Moreover, the federal government may not attach conditions to the receipt of federal funds if “the financial inducement offered by Congress might be so coercive as to pass the point at which pressure turns into compulsion,” Dole, 483 U.S. at 211 (internal quotation marks omitted). In South Dakota v. Dole, Congress encouraged states to adopt a minimum drinking age of twenty-one years by warning states that failure to do would result in a five percent cut to their federal highway funding. Id. at 211. The SupremeCourt in Dole held this was only “relatively mild encouragement to the States,” and therefore “a valid use of the spending power.” Id. at 211-12.

Here, the Ninth Circuit found that DOJ’s method of extra points allocation to applicants that chose an illegal immigration focus or that agreed to the Certification at most, “encourage[d]” applicants to focus on these federal priorities. The Court found that the “mild encouragement” directly reducing funds to a state in Dole was nonetheless far greater than the “coercion” here, because a COPS grant applicant was free to choose other focus areas or not to apply for a grant at all. The Court also noted that many applicants received funding without selecting illegal immigration or signing the Certification, hardly indicative of conditions that were “so coercive.”

Accordingly, the Ninth Circuit rejected Los Angeles’s Spending Clause argument.

Separation of Powers Claim

The Ninth Circuit also rejected the city’s claim that DOJ’s use of the factors infringes on state autonomy in a manner that raises Tenth Amendment concerns. As mentioned, the Court had concluded that DOJ’s scoring factors encourage, but do not coerce, an applicant to cooperate on illegal immigration matters. The Court explained that here, contrary to Los Angeles’s argument, DOJ’s decision to give additional points according to the two illegal immigration criteria did not constitute any superseding of state laws and therefore did not give rise to any Tenth Amendment concern.

Claim DOJ Exceeded Its Statutory Authority

When Congress has “explicitly left a gap for the agency to fill, there is an express delegation of authority to the agency to elucidate a specific provision of the statute by regulation.” Chevron, U.S.A., Inc. v. Nat. Res. Def. Council, Inc., 467 U.S. 837, 843-44 (1984). “Such legislative regulations are given controlling weight unless they are arbitrary, capricious or manifestly contrary to the statute.” Id. at 844. There is a “‘high threshold’ for setting aside agency action.” Alaska Oil & Gas Ass’n v. Jewell, 815 F.3d 544, 554 (9th Cir. 2016) (quoting River Runners for Wilderness v. Martin, 593 F.3d 1064, 1067, 1070 (9th Cir. 2010)).

The Ninth Circuit explained that this highly deferential standard is applicable to the DOJ and its statutory authority pertaining to the COPS grant here: DOJ has broad authority to promulgate regulations and guidelines to carry out the Act, is authorized to administer the grant program, and to prescribe the application’s form and required information by way of the Application Guidelines. Thus, the Court determined, DOJ’s inclusion of the illegal immigration focus area and use of the Certification was given “controlling weight unless they are arbitrary, capricious or manifestly contrary to the statute.”

The Court explained that DOJ’s inclusion of immigration-related scoring factors as a component of its implementation of its grant program was well within DOJ’s broad authority to carry out the Act. The Court also observed that nothing in the Act prohibited DOJ from allocating federal funds to focus on problems raised by the presence of illegal aliens within state or local jurisdictions.

APA Violation Claim

Los Angeles also claimed DOJ violated the Administrative Procedures Act (“APA”) because DOJ failed to engage in reasoned decision-making and because its explanation for its policy was contrary to theevidence before it when it decided to give points for adopting the illegal immigration focus and submitting the Certification.

In Arizona v. United States, 567 U.S. 387 (2012), the Supreme Court noted that “[a]ccounts in the record suggest there is an ‘epidemic of crime, safety risks, serious property damage, and environmental problems’ associated with the influx of illegal migration across private land near the Mexican border.” Id. at 398. The Ninth Circuit here observed that Congress had also expressed concern about “increasing rates of criminal activity by aliens.” Demore v. Kim, 538 U.S. 510, 518 (2003). Thus, the Supreme Court and Congress had acknowledged that illegal immigration can present a public safety issue, lending support to the DOJ’s decisions.

Based on the Court’s analysis, the Ninth Circuit Court of Appeals held that DOJ’s use of the two scoring factors was well within its statutory discretion, was APA-compliant, and complied with the constitutional restrictions imposed on congressional action under principles of federalism and the Spending Clause. Accordingly, the Court reversed the District Court’s grant of summary judgment to Los Angeles.


Judge Wardlaw dissented, arguing that Congress’s purpose in enacting the Act was to increase the number of “cops on the beat” and to create “community partnerships” between police officers and the communities they serve. Justice Wardlaw asserted that Congress did not contemplate general policing when devoting funds for community-oriented policing, a term well understood by Congress in 1994 to connote partnering with the community. She said Congress certainly did not contemplate federal immigration enforcement when it attempted to reduce crime by adding “cops on the beat.” Thus, Judge Wardlaw would hold that DOJ exceeded its delegated powers to administer the COPS grant program, and she would, therefore, affirm the District Court’s order.

For a more detailed discussion of this case, please see Client Alert Vol. 34, No. 28, available at www.jones-mayer.com.


Visibly shackling a criminal defendant during a jury trial is a violation of the defendant’s civil rights under 42 U.S.C. section 1983.

Claiborne v. Blauser, 2019 U.S. App. LEXIS 19477 (9th Cir. June 28, 2019)

Facts: Dennis Gerald Claiborne is a 63-year-old California state prison inmate serving a 60-years-to-life sentence. Claiborne has mobility problems due to chronic issues after a knee replacement surgery. In May 2010 at the High Desert State Prison, Correctional Officers Jemini Blauser and Greg Martin were called to warn Claiborne about socializing in that morning’s “pill line.” Blauser decided to punish Claiborne by keeping him in his cell for the rest of the day. Claiborne asked to speak to Blauser’s supervisor to argue against the punishment and explain his morning behavior.

After this point, the parties accounts of the events differ greatly, but it was established that Officer Blauser had Claiborne handcuffed in a standard manner, not in the manner permitted to him due to his mobility problems which allowed him to walk with a cane. On the way to the supervisory officer’s location, Claiborne said he struggled to walk while the officers maintained he walked acceptably at a measured pace. Claiborne said due to his knee issues, he struggled to walk at first and then hyperextended his knee and lost his balance, while the officers contended instead that Claiborne tried to break away from them twice and acted aggressively. Officer Blauser, according to both, pulled Claiborne to the ground. The officers recalled that Claiborne was resisting, while Claiborne said he was not resisting but just his knee was bothering him and preventing him from moving well. Claiborne said that Officer Blauser jumped on him and hit his face repeatedly, while Blauser and Martin said they used their weight to hold Claiborne down. A nurse later observed in her medical report that Claiborne had abrasions on his left knee and cheek, and doctors later found that Claiborne had significant injuries.

After exhausting the prison’s administrative process, Claiborne, proceeding without an attorney on his own behalf, sued Officers Blauser, Martin, and other individual officials under 42 U.S.C. section 1983 for the use of excessive force and deliberate indifference to his medical needs in violation of his Eighth Amendment rights. During the three-day trial, Claiborne was shackled, which was visible to the jury. The jury found for the defendants on both claims.

Claiborne then filed a motion for new trial and relief from judgment, arguing, among other things, that he was entitled to a new trial under Federal Rule of Civil Procedure 59(a) because he was visibly shackled while litigating his case in front of the jury. The District Court denied Claiborne’s motion. Claiborne appealed.

Held: Although Claiborne did not object to the shackling during trial, he raised the issue in support of his motion for a new trial, which the District Court denied. The Ninth Circuit Court of Appeals reviewed for plain error, which requires reversal where “review is necessary to prevent a miscarriage of justice.” Draper v. Rosario, 836 F.3d 1072, 1085 (9th Cir. 2016) (internal quotation marks omitted). The Court considered the issue of whether the unjustified shackling of a convicted state inmate during his three-day trial on Eighth Amendment excessive force and deliberate indifference claims deprived him of a fair trial inviolation of the federal constitution.

The Court explained that due process “forbids the use of visible shackl[ing] . . . during the guilt phase [of a criminal trial], unless that use is ‘justified by an essential state interest.’“ Deck v. Missouri, 544 U.S. 622, 624 (2005) (citing Holbrook v. Flynn, 475 U.S. 560, 568-69 (1986); Illinois v. Allen, 397 U.S. 337, 343-44 (1970)). The Ninth Circuit explained that the Supreme Court has identified “three fundamental legal principles” which are “undermined” or “diminished” by the use of visible restraints. Id. at 630-31. Visible shackling undermines the presumption of innocence, impedes the jury’s factfinding process, hampers presentation of a defense, and affronts the dignity and decorum of judicial proceedings. Id. at 630-32.

In Deck, the Court held that these considerations apply with equal force to penalty proceedings in capital cases, even though “the presumption of innocence no longer applies.” Id. at 632. Hence, before imposing restraints on criminal defendants, the trial court must take into account the particular circumstances of each case, including “special security needs or escape risks[] related to the defendant,” id. at 633. In its 1983 decision in Tyars v. Finner, the Ninth Circuit stated that “[t]he likelihood of prejudice inherent in exhibiting the subject of a civil commitment hearing to the jury while bound in physical restraints, when the critical question the jury must decide is whether the individual is dangerousto himself or others, is simply too great to be countenanced without at least some prior showing of necessity.” In the absence of such a showing, “the circumstances deprived the proceeding of the appearance of evenhanded justice which is at the core of due process.” 709 F.2d 1274, 1285 (9th Cir. 1983) (emphasis added). The Court observed that other Circuit Courts had likewise held that where a plaintiff’s dangerousness is a merits issue, visible shackling violates due process unless justified on a case-by-case basis and steps are taken to mitigate prejudice. The Court also noted that prejudice may arise where a core issue is credibility.

The Ninth Circuit found here that, because Claiborne’s dangerousness and flight risk were central issues at the trial, and because the trial “pitted his credibility against the defendant officers’ credibility,” the District Court plainly erred in allowing him to be visibly shackled before the jury without a showing of a sufficient need for such restraints. The Ninth Circuit held that the District Court thus abused its discretion in not addressing the shackling and in denying a new trial, and accordingly reversed. The Court remanded for a new trial, stating that the District Court would have discretion to impose shackling during the new trial, but it could only do so after a full hearing at which officers showed a compelling need for security and the District Court considered any less restrictive alternatives.

[1] People v. Moran, 1 Cal.5th 398, 402 (2016).

[2] People v. Carbajal, 10 Cal.4th 1114, 1120 (1995).

[3] Cal. Const., art. I, section 13.

[4] Monell v. New York City Dept. of Social Servs., 436 U.S. 658 (1978).

[5] See Torres, 648 F.3d at 1127; also see Porter v. Osborn, 546 F.3d 1131, 1141 (9th Cir. 2008) (“When an officer creates the very emergency he then resorts to deadly force to resolve, he is not simply responding to a preexisting situation.”).

[6] 340 F.3d 959 (9th Cir. 2003).

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

[8] People v. Romeo, 240 Cal.App.4th 931, 939 (1st Dist. 2015), quoting Payton v. New York, 445 U.S. 573, 585–586 (1980).

[9] Kentucky v. King, 563 U.S. 452, 466 (2011).

[10] Id. at p. 462.

[11] 21 Cal.4th 464 (1999).

[12] Sharp v. County of Orange, 871 F.3d 901, 911 (9th Cir. 2017).

[13] See State Dept. of Public Health v. Superior Court (Center for Investigative Reporting), 60 Cal.4th 940, 960 (2015).

[14] 246 Cal.App.4th 1432, 1455-1456 (5th Dist. 2016).

[15] 4 Cal.App.5th 150 (3rd Dist. 2016).

[16] 108 Stat. 1796.

[17] 108 Stat. 1807.

[18] Section 10388.

[19] 34 U.S.C. section 10381(b)(1).

[20] 34 U.S.C. section 10381(b)(2).

[21] An “immigration detainer” is issued by the Department of Homeland Security (DHS) to advise another law enforcement agency that DHS seeks custody of an alien for arrest and removal, and serves as “a request that such agency advise the Department, prior to release of the alien, in order for the Department to arrange to assume custody, in situations when gaining immediate physical custody is either impracticable or impossible.” 8 C.F.R. § 287.7(a).

[22] U.S. Const. art. I, section 8, cl. 1.