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Courtesy of James R. Touchstone, Esq.



  1. Police officers’ use of deadly force was reasonable where driver attempting to flee ignored commands to stop and drove near, toward, and amongst the officers.

Monzon v. City of Murrieta, 2020 U.S. App. LEXIS 22859 (9th Cir. July 22, 2020)

Facts: In October 2016 early one morning at about 1:45 a.m., Officer Chris Zeltner ran the license plate of a van, discovering that the van was reported stolen. Junef Monzon was driving the van. Jerrico Reyes sat in the back of the van, although Zeltner did not know of the passenger’s presence. Zeltner informed dispatch that he planned to make a felony stop, and dispatch sent additional officers to assist him. Zeltner attempted to pull Monzon over, but Monzon did not stop, leading Zeltner on a car chase. Officers Scott Montez and Blake Williams joined the chase in a cruiser. Officers Kyle Mikowski and Zack Bradley, each drove separately in their vehicles as they joined the pursuit. The officers testified that Monzon swerved back and forth on the freeway, drove at speeds reaching up to 100 miles per hour, exited and reentered the freeway, and ran stop signs and stoplights.

At about 1:57 a.m., Monzon turned onto a dead-end street with no lights. The five officers in four vehicles turned in behind him. The officers were alerted over the radio that the street came to a dead-end and to use precautions. The events that follow occurred over an approximately two-minute period after the officers turned onto the dead-end street behind Monzon.

Monzon stopped the van at the end of the street. Zeltner stopped his cruiser behind Monzon near the van’s rear bumper. Bradley staggered his vehicle behind Zeltner on the right side of the road. Mikowski stopped on the left side of the street behind Bradley. Williams and Montez staggered their vehicle behind and to the right of Mikowski’s vehicle. Zeltner and Mikowski had activated the red and blue lights on their vehicles along with their headlights.

Soon after the officers parked, Monzon conducted a multi-point turn so that his vehicle was facing the officers on the street as well as their four parked vehicles. While Monzon was turning, Zeltner exited his vehicle, presented his firearm, and shouted for Monzon to stop and put his hands in the air. Reyes, the passenger in the van, testified that Monzon put his hands in the air at this point, but Reyes agreed that the van continued to turn and move forward. When the van was about 10 to 15 feet away from Zeltner, arcing near and around him in a counterclockwise motion, Zeltner fired his first shot at Monzon. As the van continued to move past Zeltner and toward the officers behind him, Zeltner fired five more shots at Monzon, aiming through the driver’s side window. The van passed to the left of Zeltner and his cruiser, headed in the general direction of the other officers and their vehicles.

Bradley had also exited his vehicle and moved toward the rear of Zeltner’s cruiser as Monzon was turning his van around. About a second after Zeltner stopped shooting and the van accelerated past Zeltner and Bradley, the van continued turning toward Mikowski and Williams, who were now on foot on the driver’s side of the third cruiser. Bradley fired multiple shots at Monzon when he saw the van driving toward Mikowski and Williams. The van turned so that, at least at one point, it was headed directly toward Mikowski and Williams, and then was headed for the gap between the second (Bradley’s) and third (Mikowski’s) cruisers. Missing the gap, the van struck Mikowski’s cruiser, pushing it into Williams, who was standing near the rear driver’s side window of the cruiser. The crash occurred with such force that Williams’s arm went through the cruiser’s window, injuring him. Williams fired 10 shots at Monzon. Mikowski fired seven shots at Monzon aiming through the passenger side window and front windshield. Stopped, the van’s engine revved and its tires spun. Believing the van could drive over Mikowski or Williams, Bradley fired one more shot. Another officer also fired.

The entire time from when Monzon started moving toward the officers to when the van crashed into the cruiser was 4.5 seconds. During that brief period, the van accelerated repeatedly, with the accelerator pedal pushed from 84 to 99 percent, and reached a maximum speed of 17.4 mph. Although no officer gave a deadly force warning, it was undisputed that at least Officer Zeltner yelled “Stop!” before firing.

Once the van’s engine stopped revving, it slowly rolled backwards until Zeltner stopped it by jamming a skateboard under its tire. The officers again commanded Monzon to show his hands. When Monzon did not respond, Mikowski deployed a canine. The dog jumped into the van and bit Monzon on the head and right arm before being disengaged by Mikowski. About 20 seconds elapsed between the time that the canine was deployed and disengaged. The officers then discovered Reyes in the back of the van. They called for medical assistance and performed chest compressions on Monzon until the paramedics arrived. Monzon, who had been shot eight times, was pronounced dead at the scene.

Monzon’s parents and Reyes filed suit under 42 U.S.C. section 1983, claiming that the five named officers and additional unidentified officers violated Monzon’s and Reyes’ respective Fourth Amendment rights by using excessive force resulting in an unreasonable seizure and by denying Monzon medical care. They also sought to hold “managerial, supervisorial, and policymaking employees” of the City of Murrieta police department and the City of Murrieta (“City”) liable for failing to train their employees and for ratifying an unconstitutional custom, practice, or policy. The City and all of the named and unidentified officers (collectively, “defendants”) filed a motion for summary judgment on each of these claims, as well as additional state law claims.

The District Court granted the motion for summary judgment on all claims, finding that the use of deadly force was objectively reasonable under the circumstances. Monzon’s parents appealed the District Court’s order. Reyes did not appeal.

Held: On appeal, the officers asserted they were entitled to qualified immunity. The doctrine of qualified immunity protects government officials from liability for civil damages insofar as their conduct does not violate clearly established constitutional rights. See Pearson v. Callahan, 555 U.S. 223, 231 (2009) (quoting in part Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)). The Ninth Circuit Court of Appeals first considered whether the officers actually violated a constitutional right based on the record and plaintiffs’ alleged facts.

While the Court acknowledged that it must view the disputed evidence in favor of plaintiffs,[1] the Court explained that it must view the specific use of force “from the perspective of a reasonable officer on the scene, rather than with the 20/20 vision of hindsight.” Graham v. Connor, 490 U.S. 386, 396. When “the officer has probable cause to believe that the suspect poses a threat of serious physical harm, either to the officer or to others, it is not constitutionally unreasonable to prevent escape by using deadly force.” Tennessee v. Garner, 471 U.S. 1, 11 (1985). To assess reasonableness, courts consider the “severity of the crime at issue, whether the suspect poses an immediate threat to the safety of the officers or others, and whether he is actively resisting arrest or attempting to evade arrest by flight.” Wilkinson v. Torres, 610 F.3d 546, 550 (9th Cir. 2010) (quoting Graham, 490 U.S. at 396).

The Ninth Circuit concluded that the officers’ use of deadly force was reasonable under Garner and Graham. First, the severity of the crime weighed in favor of the use of force. Monzon led officers on a dangerous high-speed chase at night, and he refused the command of officers to stop the van even after Monzon came to the end of a street. Second, Monzon posed an immediate threat to the safety of the officers when he ignored commands to stop the van and drove near, toward, and amongst the officers on foot. The Court declared that these actions also demonstrated that Monzon was actively resisting arrest and attempting to evade arrest by flight. Third, Monzon’s driving endangered the officers and left them with only seconds to consider less severe alternatives.

The Court explained that in these brief few seconds, the officers were faced with a reckless driver who had already endangered their lives and the lives of the public with a high-speed chase, had broken traffic laws, ignored commands to stop his vehicle, and steered and accelerated his van toward them in close quarters on an unlit street. Then Monzon deliberately turned his car around and drove it toward and between five officers, creating the dynamic and quickly changing circumstances that the officers faced. Reading the record in the light most favorable to the plaintiffs, the Court explained that the urgency of the situation made a deadly force warning impractical because the van went from a standstill to crashing into a cruiser at over 17 mph in 4.5 seconds. Moreover, while Monzon allegedly raised his hands, Monzon was still driving and turning his car toward the officers (after having just hit a fence post and finishing a high-speed chase). The Court found that in that circumstance, it was objectively reasonable for the officers to believe that whatever else Monzon was doing, he was not surrendering. The Court concluded that a reasonable officer in the position of Zeltner, Mikowski, Williams, Montez, or Bradley would have probable cause to believe that Monzon posed an immediate threat to the safety of one or more of the other officers or himself as Monzon drove his car toward and among the five officers.

The Court also found reasonable the officers’ actions in firing immediately after Monzon crashed the van into the cruiser, noting that the van crashed with enough force to push the cruiser into one of the officers, driving his arm though the cruiser’s window. Moreover, the officers, who were now situated on all sides of the van, could hear the engine revving. The Court explained that it was not unreasonable for the officers in that situation to believe that Monzon must be stopped after this second impact (after hitting the fence post) before he drove the van into one of them. The Ninth Circuit also noted that he drove his van amongst the officers and directly toward some of them. The Court explained: “In this chaotic situation spanning a mere 4.5 seconds, the officers that Monzon did not drive directly toward were justified in using deadly force to protect the lives of their fellow officers that Monzon was driving toward.”

Moreover, the officers were aware that the van headed in their direction could accelerate dangerously and without notice at any moment. The Court observed that the black box evidence revealed that the van’s acceleration pedal was repeatedly pressed down between 80 and 99 percent during the 4.5 seconds from start to impact, and the van reached a speed of over 17 mph before hitting Mikowski’s cruiser. The Court concluded that Monzon was obviously accelerating, and added, “even a van traveling at only 10 mph moves approximately 15 feet every second, which is significant when a van that has been driven erratically is moving in close proximity to officers.” As in Wilkinson, the Ninth Circuit determined here that the officers’ actions were reasonable.[2]

Although the Ninth Circuit found that no constitutional right had been violated, the Court nevertheless considered the second prong of the qualified immunity analysis, whether the constitutional right purportedly violated was “clearly established.” The Court found no existing precedent that would clearly put a reasonable officer on notice that using deadly force against Monzon under the circumstances of this case would violate Monzon’s rights. Therefore, the plaintiffs could not overcome qualified immunity even if the Court had determined that the officers had acted unreasonably.

The Ninth Circuit also determined that because the officers acted in an objectively reasonable manner, summary judgment was properly granted to defendants with respect to the plaintiffs’ Section 1983 claims and state law claims. The Court accordingly affirmed the District Court’s grant of summary judgment in favor of defendants.

For a more detailed discussion of this case, please see Client Alert Vol. 35, No. 25, available at

  1. Defendant’s electronics search probation condition reasonable because cell phones are frequently used in transporting drugs and defendant was arrested for transporting drugs.

People v. Castellanos, 51 Cal. App. 5th 267 (6th Dist. 2020)

Facts: A police officer stopped Frank Jonathan Castellanos for speeding. Castellanos’ girlfriend was a passenger in the car. The officer saw three cell phones in the center console. Castellanos admitted two of the phones were his. After a K9 search of the car, the officer found a package of 329.9 grams of cocaine in the trunk. Castellanos admitted he was transporting the cocaine to someone in Salinas. In the passenger’s purse, the officer found a package of 4.1 grams of cocaine, seven Ecstasy pills, a glass pipe, and $83 in currency. She admitted the drugs in the purse were hers and she said she intended to sell them. According the probation report, “She stated that investigators would locate[] messages from people asking to buy cocaine,” but the report did not make clear whether this statement referred to messages on Castellanos’ phones.

Castellanos pled no contest to transporting a controlled substance[3] in March 2018. He signed and initialed a plea form purportedly waiving “all rights regarding state and federal writs and appeals,” including “the right to appeal [his] conviction, the judgment, or any other orders previously issued by this court.” In the plea colloquy, the trial court asked Castellanos if he gave up those rights, and he answered affirmatively.

The trial court granted a three-year term of probation in April 2018. The court imposed an electronic search probation condition requiring Castellanos to provide law enforcement with access to any electronic device, including all passwords to any social media accounts and applications. Castellanos protested the condition as overbroad. The trial court overruled the objection. After Castellanos requested a certificate of probable cause to challenge the electronic search condition, the trial court eventually granted his request.

Held: After Castellanos filed his opening brief in the instant case, the California Supreme Court struck down a similar electronic search condition as overbroad in In re Ricardo P. (2019) 7 Cal.5th 1113. Castellanos then contended on appeal to the California Sixth District Court of Appeal that the electronic search condition was unconstitutionally overbroad under the test formulated in People v. Lent (1975) 15 Cal.3d 481 as applied by Ricardo P. at p. 1128. The Attorney General argued that Castellanos expressly waived the right to bring this claim, requiring the Sixth District to dismiss Castellanos’ appeal.

The Sixth District explained that the touchstone in considering the validity of a waiver is whether the waiver was voluntary, intelligent, and knowing. (Edwards v. Arizona (1981) 451 U.S. 477, 482.) This requires actual knowledge of the rights being waived. (People v. Vargas (1993) 13 Cal.App.4th 1653.) The Sixth District observed that Castellanos’ claim relied on a subsequent change in law, because the Supreme Court did not file Ricardo P. until after Castellanos had filed his appeal. Because Castellanos’ claim relied on a post-waiver change in the law, the Court held that Castellanos did not enter a knowing and voluntary waiver of the right to appeal from the challenged probation condition. (People v. Wright (2019) 31 Cal.App.5th 749.)

Turning to the merits of the claim, the Sixth District explained that a condition of probation will not be held invalid 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. (Lent, supra, 15 Cal.3d at p. 486.) All three prongs must be found before a reviewing court will invalidate the condition. (People v. Olguin (2008) 45 Cal.4th 375, 379.) The Court noted that the third prong, relating to future criminality, “contemplates a degree of proportionality between the burden imposed by a probation condition and the legitimate interests served by the condition.” (Ricardo P., supra, 7 Cal.5th at p. 1122.) This prong “requires more than just an abstract or hypothetical relationship between the probation condition and preventing future criminality.” (Id. at p. 1121.)

The Court concluded that the search condition was not overbroad because the relationship between drug distribution under Health & Safety Code section 11352 and the use of cell phones or electronic devices was more than abstract or hypothetical, given that police found three cell phones in the car and Castellanos admitted that two were his. The Court also rejected Castellanos’ contention that the probation condition was unconstitutionally vague. The Court explained that the express language of the probation condition made clear that Castellanos must provide access to his cell phones or electronic devices and “provid[e] all passwords to any social media accounts and applications upon request.” The condition did not require him to open applications for the probation officer, and it limited the officer’s search to cell phones and electronic devices. The Court found this language sufficiently precise for Castellanos to know what was required of him, and for the court to determine whether he had violated the condition. The Sixth District Court of Appeal accordingly affirmed.

A dissenting judge declared that he would have dismissed the appeal without reaching the merits because he maintained that Castellanos voluntarily waived his right to appeal in his written plea agreement.

  1. Assessment of probable cause takes into account the totality of the circumstances known to the officers at the time of the search.

United States v. Malik, 963 F.3d 1014 (9th Cir. 2020)

Facts: Nevada Highway Patrol Trooper Chris Garcia pulled over a tractor-trailer for speeding outside of Ely, Nevada. When he approached the tractor-trailer, Trooper Garcia smelled marijuana in the cab. The driver, Haseeb Malik, admitted he smoked a marijuana cigarette six to seven hours earlier in the day. Trooper Garcia subsequently radioed for backup and conferred with Trooper Adam Zehr about whether to search the cab of the tractor-trailer. Having decided to search the cab, Trooper Garcia re-approached the tractor-trailer, ordered Malik and his co-driver, Abdul Majid, out of the cab, and Terry[4] frisked both defendants. During the course of the Terry frisk, Malik changed his story, admitting that he smoked the marijuana cigarette three to four—rather than six to seven—hours earlier. During Trooper Garcia’s subsequent search of the cab, he discovered 135 pounds of cocaine and 114 pounds of methamphetamine.

After their arrest, Malik and Majid moved to suppress the narcotics, arguing Trooper Garcia lacked probable cause to search the cab and containers therein. The District Court granted the motion, finding that the trooper lacked probable cause to search the cab and containers therein. The Government appealed, contending that the District Court erred by failing to evaluate the totality of the circumstances known to Trooper Garcia prior to his search.

Held: The Ninth Circuit Court of Appeals observed that the “assessment of probable cause” must take into account “the totality of the circumstances known to the officers at the time of the search.” See United States v. Ped, 943 F.3d 427, 431 (9th Cir. 2019). The Court of Appeals noted that the District Court limited its analysis to whether Trooper Garcia had probable cause at the time he approached the cab with the intent to search it. During the Terry frisk of the defendants, however, Malik made statements contradicting his earlier story about when he had smoked the marijuana cigarette. The Ninth Circuit stated that the District Court erred in deciding not to include Malik’s contradictory statements in its totality of the circumstances analysis; therefore, the District Court failed to evaluate the totality of circumstances known to Trooper Garcia.

The Ninth Circuit found that the District Court’s failure to analyze the totality of the circumstances was part and parcel of its broader error: its focus on Trooper Garcia’s subjective motivations for performing the search. The Ninth Circuit explained that “Fourth Amendment reasonableness is predominantly an objective inquiry.” Ashcroft v. al-Kidd, 563 U.S. 731, 736 (2011) (emphasis added) (internal quotation marks omitted). Although administrative searches are an exception to this rule,[5] Trooper Garcia stopped the tractor-trailer because he reasonably suspected Malik was speeding. Unlike Orozco, which involved an officer’s decision to use his administrative search authority as pretext for an investigatory stop, id. at 1213-16, Trooper Garcia stopped the tractor-trailer as part of a criminal investigation supported by reasonable suspicion. The Ninth Circuit explained that his subjective motivations, therefore, were not relevant. See al-Kidd, 563 U.S. at 736.

The Court of Appeals next considered whether Trooper Garcia had probable cause to search the cab and containers therein for evidence of violations of Nevada law. The Court noted that although Nevada had decriminalized the possession of small amounts of marijuana, smoking or otherwise consuming marijuana “in a public place, . . . or in a moving vehicle” remained a misdemeanor in Nevada.[6] Nevada also continues to prohibit drivers from operating a vehicle while under the influence of marijuana.[7]

The Ninth Circuit noted that “officers are free to disregard either all innocent explanations, or at least innocent explanations that are inherently or circumstantially implausible.” (District of Columbia v. Wesby, 138 S. Ct. 577, 592 (2018).) Moreover, when a suspect changes his or her story, the officer can “reasonably infer[] that [the person being questioned is] lying and that their lies suggest[] a guilty mind.” (id. at 587.) Here, Malik admitted that he smoked a marijuana cigarette earlier that day, but told Trooper Garcia he had thrown out the remainder of the marijuana cigarette. The Court found that Trooper Garcia was entitled to rely on Malik’s admission in making the probable cause determination, and was not required to believe Malik’s statement about throwing out the remainder of the marijuana cigarette, especially in light of Malik’s changing story about when he smoked the marijuana cigarette.

The Ninth Circuit Court of Appeals concluded that Trooper Garcia had probable cause to search the cab and containers therein for evidence of violations of Nevada state law based on Malik’s admission and shifting story. The Court accordingly reversed and remanded.

  1. A 911 call may generate reasonable suspicion if it is reliable and provides information on potentially serious illegal activity.

United States v. Vandergroen, 2020 U.S. App. LEXIS 21150 (9th Cir. July 7, 2020)

Facts: In February 2018, a 911 caller reported a man with a gun seen on his person. The caller, an employee at a bar in Concord, gave his name, identified his position at the bar, and indicated he was calling from the bar. He explained that three customers had told him they saw a man in the area with a pistol “on him.” The caller said he saw the man in the back parking lot and that the man had just walked into a neighboring bar. The caller described the man as “Latin,” “wearing a blue sweater with a Warriors . . . logo,” “skinny,” and in his early 20s, features that mostly matched those of defendant Shane Vandergroen. The caller next reported that the man had walked out of the neighboring bar and was in the parking lot next to the bar where the caller was. In response to the operator’s queries, the caller stated that the man had not been fighting, and that he would ask the patrons who reported the gun to him where the gun was located on the man. Before he could provide more information, however, the man started running through the parking lot. The caller reported the man’s movements, including that the man jumped into a black four-door sedan, a “Crown Vic.” The caller observed that the man was driving out of the parking lot, and told police officers arriving on the scene which car to follow. At the end of the call (“the 911 call”), the caller provided his full name and phone number.

In response to the 911 call, dispatch alerted officers that “patrons think they saw a HMA [Hispanic Male Adult] blu[e] warriors logo carrying a pistol.” Dispatch directed officers to the caller’s bar address and conveyed specifics from those that the caller had provided. Shortly thereafter, an officer reported over the dispatch “we’re gonna do a high-risk car stop.” The police then executed a stop of the man, later identified as Vandergroen. During this stop, the police conducted a search of Vandergroen’s car and found a loaded semi-automatic handgun under the center console to the right of the driver’s seat. An officer then arrested Vandergroen.

Vandergroen was charged with being a felon in possession of a firearm, in violation of 18 U.S.C. section 922(g)(1). Before trial, Vandergroen filed a motion to suppress evidence found in the course of his arrest, arguing in part that the 911 call did not generate reasonable suspicion justifying his initial stop. The District Court denied the motion. Vandergroen then requested that the case be set for a stipulated-facts bench trial, reserving the right to appeal the denial of the motion to suppress. After accepting the parties’ factual stipulations, the District Court adjudged Vandergroen guilty. Vandergroen appealed, arguing the 911 call should never have led to his stop in the first place because it did not generate reasonable suspicion, and that the evidence of the handgun should therefore have been excluded.

Held: The Ninth Circuit Court of Appeals explained that under the Fourth Amendment, an officer may conduct a brief investigative stop only where she has “a particularized and objective basis for suspecting the particular person stopped of criminal activity,” i.e., “reasonable suspicion.” Navarette v. California, 572 U.S. 393, 396-97 (2014) (citations omitted). While a tip such as the 911 call may generate reasonable suspicion, it can only do so when, under the “totality-of-the-circumstances,” it satisfies two criteria. United States v. Rowland, 464 F.3d 899, 907 (9th Cir. 2006) (citation omitted). First, the tip must exhibit sufficient indicia of reliability, and second, it must provide information on potential illegal activity serious enough to justify a stop. United States v. Edwards, 761 F.3d 977, 983 (9th Cir. 2014).

Regarding the first criteria regarding reliability, the Court observed that the caller (1) provided his name and employment position, which made him a known, and consequently more reliable, witness; (2) revealed the basis of his knowledge by explaining that multiple patrons informed him that a man had a gun on him, and by offering to ask follow-up questions to the patrons about the exact location of the gun – which enhanced the tip’s reliability; and (3) used a recordable, traceable emergency line to make his call. Moreover, despite the fact that the patrons themselves remained anonymous, their statements “exhibit[ed] ‘sufficient indicia of reliability’” to overcome this shortcoming. Florida v. J.L., 529 U.S. 266, 270 (2000) (quoting Alabama v. White, 496 U.S. 325, 327 (1990)). Their reports were based on fresh, first-hand knowledge, personally seeing the gun before reporting it to the caller. The anonymous patrons were still at the bar when the caller made the call. Lastly, there were multiple individuals who reported seeing the gun. The Court concluded that the totality of the circumstances here demonstrated that the 911 call was sufficiently reliable to support reasonable suspicion.

Turning to the second criteria for the tip, the Ninth Circuit explained that a tip must demonstrate that “criminal activity may be afoot,” id. (quoting Terry v. Ohio, 392 U.S. 1, 30 (1968)), and the absence of any presumptively unlawful activity from a tip will render it inadequate to support reasonable suspicion. In addition, any potential criminal activity identified must be serious enough to justify “immediate detention of a suspect.” United States v. Grigg, 498 F.3d 1070, 1080-81 (9th Cir. 2007).

Here, the Court determined that the 911 call gave the police reason to suspect Vandergroen was carrying a concealed firearm, which is presumptively a crime in California.[8] The caller indicated that patrons had seen Vandergroen with a gun “on him.” The Court stated that this language, conveyed to the police by the dispatcher, would suggest to a reasonable police officer that Vandergroen at least potentially had the gun concealed on his body. As such, the tip provided information on potentially illegal activity.

Moreover, the Court found that the potentially illegal activity identified in the 911 call was serious enough to justify the “immediate detention of [the] suspect.” Grigg, 498 F.3d at 1080. The Court explained that police had reason to suspect Vandergroen was committing an ongoing crime when stopped in his car because the crime of carrying a concealed weapon includes concealing the weapon in a car.[9] The Court added that the tip’s indication that Vandergroen was engaging in this continuing illegal activity meant that there was an ongoing danger and the immediate detention of Vandergroen was warranted.

The Court thus concluded that the 911 call in this case was both reliable and provided information on potentially criminal behavior. The 911 call generated reasonable suspicion justifying the stop and the District Court was correct to deny Vandergroen’s motion to suppress the evidence obtained during the stop. Accordingly, the Ninth Circuit affirmed.

  1. Police officer’s request to ping defendant’s cell phone to find his location without warrant did not violate Fourth Amendment because exigent circumstances existed.

People v. Bowen, 52 Cal. App. 5th 130 (1st Dist. 2020)

Facts: In March 2017, Quentin Bowen visited another man, Dennis N., during the daytime at Dennis N.’s mobile home located approximately 200 yards from a preschool. Dennis N. had been taking care of Bowen’s dog and Bowen wanted to see his dog. A violent dispute ensued where Bowen repeatedly stabbed Dennis N.

According to the testimony of Officer Adams, he was dispatched at 3:37 p.m. to a stabbing incident. He initially spoke with two witnesses at a preschool behind a shopping center who told him an older man who was bleeding from his neck said he had been stabbed. They also told Officer Adams they saw another man walking away through a nearby field. Officer Adams testified that he then spoke with Officer Cadaret at the scene of the stabbing, and learned Dennis N. had been repeatedly stabbed in the neck in an unprovoked attack. The victim told the officers that the suspect’s dog had a tag with the suspect’s cell phone number. Dennis N. was taken to the hospital, where he was treated for eight stab wounds, and survived.

At 4:19 p.m., on the way to the hospital, Officer Adams called police dispatch and asked if the dispatcher could obtain a ping from the suspect’s cell phone. Officer Adams explained “it was imperative” that police find the suspect because “[t]he suspect had just been involved in a very violent crime. The victim was brutally stabbed multiple times, seemingly unprovoked, from the information we had. This took place literally less than 200 feet away from a preschool that was—my witnesses were there to pick up their kids, so the preschool was letting out. It’s broad daylight in the middle of the afternoon on Friday, and it’s right near a large shopping center. There’s multiple neighborhoods in the area. The suspect was last seen walking away … still possibly armed. And based on the totality of the circumstances, I didn’t want anybody else to possibly be the victim.” Officer Cadaret also testified at the motion to suppress hearing that the police and a police dog attempted to locate Bowen but were unsuccessful before receiving the cell phone ping location information.

At 5:57 p.m., the police learned from dispatch that the suspect’s cell phone had pinged on the Santa Rosa Creek Trail east of Willowside Road. Once the police learned the location information, additional officers and resources, including a helicopter, converged on the trail to search the area. At 7:18 p.m., they found Bowen walking on the trail wearing a backpack, a jacket, and no shirt. Bowen was arrested. His cell phone, backpack, and several knives were seized. He had blood on his right ear, and DNA tests confirmed the blood was consistent with both Bowen’s and Dennis N.’s.

The Sonoma County District Attorney filed an information charging Bowen with attempted murder and other charges, and alleged enhancements. Bowen filed a motion to suppress the knife evidence seized from his backpack on the grounds that the police failed to obtain a warrant before having Bowen’s service provider ping his cell phone to locate him. The People argued the warrantless cell phone ping was justified by exigent circumstances and the officers’ good faith reliance on Penal Code section 1546.1.[10] The trial court denied the motion, finding Officer Adams acted in good faith responding to a violent and serious situation near a preschool that needed immediate remediation.

In March 2018, a jury found Bowen guilty of one count of attempted murder committed willfully, deliberately and with premeditation, with a great bodily injury enhancement and a personal knife use enhancement, and one count of assault with a deadly weapon, with a great bodily injury enhancement. Bowen was sentenced to prison. His overall prison sentence was seven years to life consecutive to a determinate term of four years. Bowen appealed the trial court’s denial of his motion to suppress.

Held: On appeal, Bowen argued the knives should have been excluded from evidence because they were the product of a warrantless search in which the police requested that his mobile service provider “ping” his phone and provide location data. Bowen conceded that the trial court was correct in finding that the ping of his cell phone was a search but argued no exception to the warrant requirement applied.

The California First District Court of Appeal explained that a long-recognized exception to the Fourth Amendment’s warrant requirement exists when exigent circumstances make necessary the conduct of a warrantless search. “‘[E]xigent circumstances’ means an emergency situation requiring swift action to prevent imminent danger to life or serious damage to property, or to forestall the imminent escape of a suspect or destruction of evidence. [A determination of] whether such circumstances exist […] must be measured by the facts known to the officers.” (People v. Panah (2005) 35 Cal.4th 395, 465.) The Court added that the reasonableness of the officers’ conduct depends upon whether facts available at the moment of the search support a reasonable belief that the action taken was appropriate.

Here, the Court observed that at the time Officer Adams requested a ping of Bowen’s cell phone, the information available to him was that less than an hour earlier Dennis N. had been repeatedly stabbed in the neck in an unprovoked attack, within 200 yards of a preschool and near a shopping center and multiple neighborhoods. Further, the suspect, who was possibly still armed with a knife, had fled on foot. The area where the witnesses indicated Bowen had headed was a several-hundred-yard field with multiple entrances and exits leading to a creek trail, houses and apartment complexes, and a store; and there were “hundreds of people moving about” the area. The police were actively looking for Bowen when they received the cell-site location information, or CSLI. The Court stated that based upon the circumstances known to Officer Adams, he believed it was imperative that the suspect be found as soon as possible to prevent another possible unprovoked attack. The Court found the trial court was correct in determining that the exigent circumstances exception applied under the facts of this case. The First District therefore concluded Bowen’s motion to suppress was properly denied, and accordingly affirmed.

  1. District Court erred by concluding that probable cause determination made by Nevada state court at preliminary hearing precluded plaintiff’s federal lawsuit against defendants for lack of probable cause.

Scafidi v. Las Vegas Metro. Police Dep’t, 2020 U.S. App. LEXIS 23088 (9th Cir. July 23, 2020)

Facts: Marino Scafidi was charged with three counts of sexual assault under Nevada law. During the proceedings that followed, Nevada state courts suppressed evidence seized pursuant to a search warrant, and determined that the police failed to preserve potentially exculpatory evidence. Ultimately, all charges were dismissed pursuant to a motion by the State.

Scafidi subsequently brought a federal civil rights claim[11] under 42 U.S.C. section 1983 against the Las Vegas Metro Police Department (“LVMPD”), five officers, a crime scene investigator, and the nurse who performed a sexual assault exam on the alleged victim. He contended that the Las Vegas police officers staged an incriminating crime scene photo by moving his sleeping medications from the hotel bathroom drawer into a mint container by his clothes in the bedroom; falsely stated in a warrant application that the alleged victim’s sexual assault exam revealed sexual assault when it in fact only revealed sexual intercourse; threatened him for asserting his constitutional rights; and made racially derogatory remarks to him.

The District Court concluded that the probable cause determination made by the Nevada justice of the peace at a preliminary hearing precluded Scafidi from asserting in his federal suit that the defendants lacked probable cause to arrest and detain him. In the District Court’s view, the existence of probable cause necessarily meant that Scafidi’s federal causes of action failed. The District Court consequently granted summary judgment to the defendants. Scafidi appealed.

Held: The Ninth Circuit Court of Appeals first observed that when the Circuit Court adjudicates a state-law claim, its task “is to approximate state law as closely as possible in order to make sure that the vindication of the state right is without discrimination because of the federal forum. In doing so, federal courts are bound by the pronouncements of the state’s highest court on applicable state law.”[12] On issues of state law, the Court explained, it was not bound by its own prior opinion where an intervening decision from a state court of last resort had “undercut the theory or reasoning underlying the prior circuit precedent in such a way that the cases are clearly irreconcilable.” Miller v. Gammie, 335 F.3d 889, 900 (9th Cir. 2003) (en banc).

The Court acknowledged that “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.’” Rodriguez v. City of San Jose, 930 F.3d 1123, 1130 (9th Cir. 2019) (quoting Migra v. Warren City Sch. Dist. Bd. of Educ., 465 U.S. 75, 81 (1984)); 28 U.S.C. section 1738. Issue preclusion, or collateral estoppel, “bars successive litigation of an issue of fact or law actually litigated and resolved in a valid court determination essential to the prior judgment.” Rodriguez, 930 F.3d at 1130 (quoting White v. City of Pasadena, 671 F.3d 918, 926 (9th Cir. 2012)). As long as a litigant had a full and fair opportunity to litigate the issue, collateral estoppel under 28 U.S.C. section 1738 based on state-court criminal proceedings applies to subsequent civil litigation under 42 U.S.C. section 1983.

The Ninth Circuit had previously held that under Nevada law, a probable cause determination in a preliminary hearing has preclusive effect in a subsequent suit. Haupt v. Dillard, 17 F.3d 285, 288-89 (9th Cir. 1994). The District Court had relied on Haupt in concluding that Scafidi was collaterally estopped from relitigating whether there was probable cause for his arrest, detention, and prosecution. However, the Circuit Court here noted that after Haupt was decided, but before the District Court issued its order in this case, the Nevada Supreme Court recognized that a probable cause determination in a preliminary hearing does not preclude a plaintiff from litigating that issue in a subsequent suit. Jordan v. State ex rel. Dep’t of Motor Vehicles & Pub. Safety, 121 Nev. 44, 110 P.3d 30, 48-49 (Nev. 2005), overruled on other grounds by Buzz Stew, LLC v. City of N. Las Vegas, 124 Nev. 224, 181 P.3d 670 (Nev. 2008). (Emphasis added.) The Ninth Circuit determined that under Jordan, the preliminary hearing probable cause determination was only prima facie evidence of probable cause, which could be overcome in a later proceeding with evidence of “false testimony or suppressed facts.” Id. at 49 & n.65. The Court observed that the Nevada standard articulated in Jordan was in accord with the standard under California law that the Ninth Circuit had previously expressed in Awabdy v. City of Adelanto, 368 F.3d 1062 (9th Cir. 2004).

Here, Scafidi contended in the District Court that the police defendants misrepresented the results of the alleged victim’s sexual assault exam on a warrant affidavit, manipulated the crime scene to make it look like he had drugged the alleged victim, and falsely accused him in the police report of having drugged her. The Court concluded that under Jordan, Scafidi’s allegations of “fabricated evidence, or other wrongful conduct undertaken in bad faith” created a triable issue of material fact as to probable cause. Jordan, 110 P.3d at 49 n.65 (2005) (quoting Awabdy, 368 F.3d at 1067)). Because Jordan, not Haupt, controlled this appeal, the Ninth Circuit reversed the District Court’s order as to Scafidi’s federal claims under Section 1983.

  1. Once a suspect has clearly and sufficiently invoked his right to counsel, police may not resume questioning until counsel is provided.

People v. Henderson, 2020 Cal. LEXIS 4869 (July 30, 2020)

Facts: In June 1997, Paul Nathan Henderson entered the Cathedral City mobile home of Reginald and Peggy Baker and said, “‘Don’t yell or scream and no one will get hurt.’” He held a knife to Reginald’s throat, demanded their car keys, and bound the victims. Henderson took their money that he found in a can. Peggy pleaded for Henderson to remove 71-year-old Reginald’s gag, afraid that Reginald would be unable to breathe and suffer a heart attack. Henderson refused and ordered Peggy to put a gag in her mouth. Henderson put his arm around Peggy’s neck and “tried to crack” her neck, and then struck her head, knocking Peggy to the ground. Peggy pretended she was dead, going limp when Henderson lifted her arm. He covered her with a sheet and departed in the Bakers’ car. Peggy checked on Reginald, who appeared to be dead. Responding officers found Reginald’s body in the ransacked residence, with a neck would from a four-inch cut about one-third of an inch deep. The wound did not sever any major veins or arteries. An autopsy revealed that Reginald’s severe heart disease, exacerbated by the stress of the attack, resulted in cardiac arrest.

Henderson was arrested in the early morning of July 5, 1997. About five hours later, Detective Wolford and Officer Herrera of the Cathedral City Police Department interviewed him. Henderson was read his Miranda[13] rights and waived them both orally and in writing. The officers said they were investigating crimes committed against the Bakers at the trailer park on the day on June 22, 1997 and asked what he was doing that evening. Henderson was reluctant to disclose his whereabouts. After a series of questions, Henderson admitted being in Cathedral City. When asked if he went to the trailer park, the following exchange occurred:

“[Henderson:] Uhm, there’s some things that I, uhm, want uh …

“Det. Wolford: Did you go into the trailer park, that night?

“[Henderson:] [Want,] uh, want to, speak to an attorney first, because I, I take responsibility for me, but there’s other people that …

“Officer Herrera: What do you …

“[Defendant:] … I need to find out …

“Officer Herrera: Paul.

“[Defendant:] … I need to find out.

“Officer Herrera: Paul, what do you accept responsibility for?

“[Defendant:] (No response)”

The officers subsequently asked Henderson several times how he took responsibility during the subsequent questioning, but Henderson was not provided an attorney. Eventually, Henderson admitted to committing the crimes.

The trial court denied Henderson’s motion to exclude his statements from evidence, finding that he validly waived his Miranda rights and did not invoke his right to counsel later in the interview. Henderson was convicted of the first degree murder of Reginald Baker, with special circumstances of commission during a robbery and burglary and an enhancement for personal use of a deadly weapon. He was also convicted of attempted deliberate and premeditated murder of Peggy Baker and other related offenses. The jury returned a verdict of death, and the trial court imposed that sentence along with a separate term of life with the possibility of parole for the attempted murder and a determinate term of 15 years on the remaining counts and enhancements. An automatic appeal followed.

Held: On appeal, Henderson did not challenge his initial Miranda waiver. He argued, however, that the officers violated Edwards v. Arizona (1981) 451 U.S. 477 by continuing to question him after he invoked his right to counsel.

The Supreme Court of California explained that a defendant who has waived his Miranda rights may reinvoke them during the interrogation. If he clearly and unequivocally does so, police must stop questioning. (Edwards, supra, 451 U.S. at pp. 478–479, 482, 485; Miranda, supra, 384 U.S. at pp. 473–474.) Once a suspect has invoked his right to counsel, police may not resume questioning until counsel is provided or the suspect himself reinitiates contact. (Edwards, at pp. 484–485; accord, People v. Gamache (2010) 48 Cal.4th 347, 384.) “Edwards set forth a ‘bright-line rule’ that all questioning must cease after an accused requests counsel. [Citation.] In the absence of such a bright-line prohibition, the authorities through ‘badger[ing]’ or ‘overreaching’—explicit or subtle, deliberate or unintentional—might otherwise wear down the accused and persuade him to incriminate himself notwithstanding his earlier request for counsel’s assistance.” (Smith v. Illinois (1984) 469 U.S. 91, 98.)

The Supreme Court noted that “[i]n order to invoke the Fifth Amendment privilege after it has been waived, and in order to halt police questioning after it has begun, the suspect ‘must unambiguously’ assert his right to silence or counsel.” (People v. Stitely (2005) 35 Cal.4th 514, 535, quoting Davis v. United States (1994) 512 U.S. 452, 459.) The suspect must express his desire for counsel with sufficient clarity “that a reasonable police officer in the circumstances would understand the statement to be a request for an attorney.” (Id. at p. 459.) “[A]fter a suspect makes a valid waiver of the Miranda rights, the need for effective law enforcement weighs in favor of a bright-line rule that allows officers to continue questioning unless the suspect clearly invokes the right to counsel or right to silence.” (People v. Nelson (2012) 53 Cal.4th 367, 377.)

The Court explained that, although various cases had held that a suspect’s use of equivocal words or phrases does not constitute a clear request for counsel’s assistance,[14] Henderson did not use such equivocal language here. The Court found that Henderson clearly stated, “[I] want to, speak to an attorney first,” and twice emphasized, “I need to find out.” Henderson tried to speak further, but Officer Herrera spoke over him.

The Supreme Court explained that there was “nothing inconsistent or ambiguous about wanting to speak to an attorney before taking responsibility, and defendant made clear that he wanted to speak to an attorney ‘first.’ One can take responsibility in ways other than giving an uncounseled confession to the police.” The Court added that Henderson’s silence and reticence before and immediately after his invocation saying he needed to find out did not validate the People’s argument that a reasonable officer could believe that Henderson was willing to continue the interview notwithstanding his request for counsel.

The Supreme Court expressed that the officers brushed aside a clear invocation, and that under Edwards, the officers were required to stop the interrogation once defendant unequivocally requested counsel. (Edwards, supra, 451 U.S. at pp. 484–485.) Because they did not stop the interrogation at that point, the Court found that Henderson’s post-assertion statements in response to the officers’ continued questioning did not amount to a valid waiver of the right to counsel that he had invoked. (Id. at p. 487.) Accordingly, the Court concluded his statements were inadmissible as substantive evidence at trial in light of Miranda and Edwards.

Moreover, the Court explained that it could not conclude that the erroneous admission of Henderson’s statements was harmless beyond a reasonable doubt as to any of the jury’s findings because Henderson’s admissions were the “centerpiece of the prosecution’s case,”[15] offered to prove he was the assailant.

Accordingly, the Supreme Court of California reversed the trial court’s judgment in its entirety and remanded ­­­for further proceedings.


  1. The California Supreme Court upholds the “California Rule” in case of Alameda County Deputy Sheriff’s Association v. Alameda County Employees’ Retirement Association.

Alameda Cnty. Deputy Sheriff’s Ass’n v. Alameda Cnty. Employees’ Ret. Ass’n, 2020 Cal. LEXIS 4870 (July 30, 2020)

Facts: The California Supreme Court recently reviewed the validity of the “California Rule” in the context of this case. The California Public Employees’ Pension Reform Act of 2013 (“PEPRA”; Stats. 2012, ch. 296, section 1) substantially revised the laws governing the pension plans of the state’s public employees. At issue in the case facing the Supreme Court here was a provision of PEPRA that amended the County Employees Retirement Law of 1937 (“CERL”; Government Code section 31450 et seq.).

CERL governs the pension systems maintained by many of the state’s counties.[16] Each county system is administered by its own retirement board, which is tasked with implementing CERL’s provisions. Under CERL, the amount of an employee’s pension benefit is determined as a percentage of the “compensation earnable” received by the employee during a representative year of county employment. Even prior to PEPRA, CERL expressly excluded overtime pay from compensation earnable and limited the inclusion of payments from a deferred compensation plan. The PEPRA provision at issue in Alameda amended CERL’s definition of compensation earnable to exclude or limit the inclusion of additional types of compensation in order to prevent perceived abuses of the pension system that resulted in “pension spiking.” Although this amendment applies to the calculation of the pensions of all employees covered by CERL, the parties in the case here agreed that the issues raised here related only to the amendment’s impact on the pensions of persons who were first employed by a county prior to the effective date of PEPRA, referred to as “legacy employees.”

Three separate lawsuits were filed by organizations representing employees of Alameda, Contra Costa, and Merced Counties. Among the plaintiffs in these actions, only those in the Alameda County action[17] petitioned the Supreme Court for review of the First District Court of Appeal’s decision.[18]

The plaintiffs’ challenge to PEPRA’s amendment of CERL raised two sets of issues. First, the Alameda County Deputy Sheriff’s Association (“Association”) and its co-plaintiffs (collectively, “Plaintiffs”) contended that employees in the three counties involved had a contractual right to receive pension benefits calculated without regard to PEPRA’s changes, a right based either on (1) agreements in effect when PEPRA was enacted or (2) application of the doctrine of equitable estoppel.

The Court observed that, long before PEPRA was passed, employees in each of these counties had entered into litigation settlement agreements with their respective retirement boards that specified the types of compensation included in compensation earnable. In some cases, the provisions added by PEPRA conflicted with the terms of these agreements, excluding or restricting items of compensation that the agreements required to be included in compensation earnable.

Plaintiffs argued that these agreements conferred on existing employees the contractual right to continue to include these items of compensation in their pensionable compensation, notwithstanding their exclusion by the provisions added by PEPRA, or, alternatively, that the counties were equitably estopped from implementing the PEPRA amendment in a manner inconsistent with the agreements. In turn, Central Contra Costa Sanitary District (“District”) and the State of California (“State”) (collectively, “Defendants”) countered that the retirement boards were required to implement the provisions of CERL, including PEPRA’s amendment, notwithstanding any contrary agreements they might have entered into with county employees.[19]

As an entirely distinct argument, Plaintiffs also argued that county employees who began their work prior to PEPRA’s enactment had a constitutional right to receive pension benefits calculated according to the law as it existed prior to PEPRA. Supreme Court precedents since the 1950’s had granted constitutional protection to public employee pension plans. Under the “California Rule,” the contract clause of the California Constitution requires any modification of public employee pension plans to satisfy a standard established in a long line of California Supreme Court decisions, including most prominently Allen v. City of Long Beach (1955) 45 Cal.2d 128 (“Allen I”).

In determining the constitutional validity of a modification to a public employee pension plan, the Court noted that Allen I requires a court first to decide whether the modification imposes disadvantages on affected employees, relative to the preexisting pension plan, and, if so, whether those disadvantages are accompanied and offset by comparable new advantages. Assuming the disadvantages are not offset in this manner, the court must then determine whether the agency’s purpose in making the changes was sufficient, for constitutional purposes, to justify an impairment of pension rights. Public employee pension plans may be modified “for the purpose of keeping [the] pension system flexible to permit adjustments in accord with changing conditions and at the same time maintain the integrity of the system,” but to survive contract clause scrutiny, such changes “must bear some material relation to the theory of a pension system and its successful operation.” (Id. at p. 131.) Finally, assuming the changes occurred for a constitutionally permissible purpose, the Court stated that it interpreted Allen I to require the modification to provide comparable new advantages to public employees unless to do so would undermine, or would otherwise be inconsistent with, that proper purpose.

Plaintiffs contended that under the Constitution’s contracts clause, persons employed by a county at the time of PEPRA’s enactment possessed implied contractual rights in the pre-PEPRA terms of CERL that are protected against impairment. Because PEPRA’s amendment had the practical effect of diminishing some employees’ pension benefits without granting any comparable new advantages, Plaintiffs argued, its application to the pensions of existing employees was precluded by the California Rule. The Defendants responded that (1) PEPRA’s amendment did not trigger constitutional scrutiny because its provisions constituted a clarification, rather than a modification of CERL, and, alternatively, (2) any changes met the requirements of the California Rule.

Held: The Supreme Court of California first examined the ordinary contract issues, stating that county employees have no express contractual right to the calculation of their pension benefits in a manner inconsistent with the terms of the PEPRA amendment. The Court explained that because the county retirement boards are required to implement CERL as enacted by the Legislature, the litigation settlement agreements, which were silent on this issue, must be interpreted to permit the modification of board policies to accommodate statutory changes to CERL. The Court also concluded that Plaintiffs failed to demonstrate the elements necessary for the invocation of equitable estoppel. In particular, the Court found no evidence that the county boards made any representations regarding the continued enforceability of the terms of the settlement agreements in the event of inconsistent legislative changes to the controlling statutory provisions.

Turning to the constitutional question, the Court rejected Defendants’ threshold argument that no constitutional issue was presented here because the exclusions and limitations from compensation earnable imposed by PEPRA did not constitute a change in the law governing CERL pension benefits. Although the inclusion in compensation earnable of the elements of compensation excluded by PEPRA had not been specifically addressed when the amendment was enacted, either in CERL itself or its judicial interpretations, the Court found that the more general law of compensation earnable was sufficiently settled prior to PEPRA to justify treating the amendment as a change in the law for purposes of contract clause analysis.

In addressing the merits of Plaintiffs’ constitutional claim, however, the Supreme Court held that the challenged provisions added by PEPRA did meet contract clause requirements. The Court reasoned that the provisions were enacted for the constitutionally permissible purpose of closing loopholes and preventing abuse of the pension system in a manner consistent with CERL’s preexisting structure. The Court also found that to interpret the California Rule to require county pension plans either to maintain these loopholes for existing employees or to provide comparable new pension benefits that would perpetuate the unwarranted advantages provided by these loopholes would defeat the aforementioned permissible purpose.

The Supreme Court rejected the State and amicus curiae exhortations to conduct a fundamental reexamination of the California Rule. The Court explained that because it concluded that PEPRA’s amendment of CERL did not violate the contract clause under a proper application of the California Rule, the Court had “no jurisprudential reason to undertake a fundamental reexamination of the rule. Thus, the test declared in Allen I, “as explained and applied here,” remains the law of California.

The Supreme Court accordingly reversed the decision of the Court of Appeal and remanded the matter to that court, with directions to remand to the trial court to vacate the judgments entered in each of the three consolidated proceedings and to conduct further proceedings consistent with the Supreme Court’s decision.

For a more detailed discussion of this case, please see Client Alert Vol. 35, No. 24, available at

  1. Sheriff’s Department properly reassigned deputies based on the County’s ‘sole and exclusive right’ to reassign employees for reasons considered legitimate.

Cnty. of Fresno v. Fresno Deputy Sheriff’s Ass’n, 51 Cal. App. 5th 282 (5th Dist. 2020)

Facts: Greg Isaac and Kirby Alstrom were employed by the Fresno County Sheriff’s Office (the “Department”) as deputy sheriffs. For several years, each held a specialty assignment as a detective, which was a nonpatrol function. In April 2014, Isaac was informed by his sergeant that he was being reassigned from vice intelligence to patrol because of his tenure with the unit. In September, Alstrom’s sergeant told him he would be returning to patrol because some detectives had been in the specialty unit for a long time, and patrol deputies were complaining of the lack of opportunities to move into specialty assignments. Isaac and Alstrom both moved into their patrol assignments in December 2014.

Both deputies testified they did not believe they could be reassigned from their specialty assignments to patrol involuntarily, absent documented performance problems or grounds for discipline. Neither deputy had disciplinary nor documented performance problems; both had received positive performance evaluations. They did not consent to reassignment. Through the deputies’ bargaining representative, Fresno Deputy Sheriff’s Association (the “Association”), the deputies filed a grievance challenging their involuntary reassignment from their specialty assignments to patrol assignments. The deputies asserted the reassignments violated both a memorandum of understanding (“MOU”) between the County of Fresno (the “County”) and the Association, and an established past practice that deputies would not be involuntarily reassigned in the absence of disciplinary issues, documented performance issues, layoffs, or pending disability retirement. The administrative hearing of the grievance resulted in a decision in favor of the deputies.

The County filed a petition for a writ of mandate to reverse the decision, and the trial court granted the petition. The deputies and the Association appealed the trial court’s judgment.

Held: The California Fifth District Court of Appeal first observed that MOU’s are binding contracts and are interpreted in accordance with the general rules of contract interpretation. National City Police Officers’ Assn. v. City of National City (4th Dist. 2001) 87 Cal.App.4th 1274, 1279. The goal of contract interpretation, the Court explained, is to effectuate the mutual intent of the parties as it existed at the time of contracting insofar as it is ascertainable and lawful. (Id. at p. 1279.) “‘Such intent is to be inferred, if possible, solely from the written provisions of the contract. [Citation.] The “clear and explicit” meaning of these provisions, interpreted in their “ordinary and popular sense,” unless “used by the parties in a technical sense or a special meaning is given to them by usage” [citation], controls judicial interpretation. [Citation.] Thus, if the meaning a layperson would ascribe to contract language is not ambiguous, we apply that meaning.’” (Hervey v. Mercury Casualty Co. (2nd Dist. 2010) 185 Cal.App.4th 954, 961.)

The Court observed that Article 38 of the MOU, the management rights clause, provided, in part:

“A. All [c]ounty rights, powers, functions, and authorities except as expressly abridged by this MOU shall remain vested in the [c]ounty whether or not they have been exercised in the past. [¶] … [¶]

“H. The rights, powers, and authorities of the [c]ounty include, but are not limited to, the sole and exclusive right to: [¶] … [¶]

“4. select, train, direct, assign, demote, promote, layoff, dismiss its employees; [¶] … [¶]

“7. relieve its employees from duty or reassign employees because of lack of work or for other reasons the [c]ounty considers legitimate; [¶] … [¶]

“9. determine and change the method, means, personnel, [**16] and standards by which [c]ounty operations are to be conducted; [¶] … [¶]

“13. make rules and regulations pertaining to employees consistent with this MOU … .” (Italics added in the above.)

Summarizing Article 38, the Court stated: “Thus, on the face of the MOU, the County, with the agreement of the Association, reserved to itself all rights not expressly abridged by other provisions of the MOU; the MOU specifically granted the county the ‘sole and exclusive right’ to assign its employees, and to reassign them for reasons the county considered legitimate.”

The Fifth District agreed with the trial court that Article 38 granted the County the right to assign and reassign deputies, without limiting the reassignment right to cases of discipline, poor performance, and other such factors. The Court of Appeal therefore concluded that the Department did not violate the express written terms of the MOU by reassigning Isaac and Alstrom involuntarily, even in the absence of disciplinary issues, documented performance issues, layoffs, or pending disability retirement.

The appellants alleged that the MOU reserved to the County its reassignment rights “except as expressly abridged by this MOU,” and that a later Article – called the “zipper clause” – in the MOU expressly abridged those rights. The Fifth District disagreed, finding that the zipper clause did not contain any provisions limiting the county’s reassignment rights. The Court added that the function of a zipper clause is not to abridge or alter the substance of any of the other provisions to which the parties agreed in the MOU, but to prevent either party, for the duration of the MOU’s term, from unilaterally changing those provisions and from compelling renegotiation of the agreed-upon provisions, unless the parties agree to reopen negotiations.

The appellants also alleged that the parties had established a past practice that deputies would not be reassigned out of their specialty assignments except for specified reasons, and that the practice was unilaterally changed by the Department when Isaac and Alstrom were reassigned to patrol. Rejecting this claim, the Fifth District explained that the Association, by agreeing to the management rights clause, had agreed that the County had the sole and exclusive right to assign and reassign employees for reasons it considered legitimate, and to determine the procedures and standards for reassignment. The Department’s action in reassigning Isaac and Alstrom was consistent with these terms of the MOU. By granting the county this authority to reassign employees, the Court explained, the Association made a clear and unmistakable waiver of its right to renegotiate the grounds on which the County was permitted to reassign its employees, and the procedures for doing so, during the term of the MOU. The Court thus concluded that the Association failed to establish that the MOU was ambiguous or silent regarding reassignment of employees, and therefore there was no need to consider the past practices of the parties to determine whether the County violated its obligation to negotiate a change in practice. 

Accordingly, the Fifth District Court of Appeal affirmed the trial court judgment granting the County’s petition for writ of mandate.

  1. An individual cannot be deemed an employee within the meaning of the Fair Employment and Housing Act absent existence of remuneration.

Talley v. Cnty. of Fresno, 51 Cal. App. 5th 1060 (5th Dist. 2020)

Facts: In October 2015, Ronald Talley pled nolo contendre to driving without a license or insurance and was sentenced by the Fresno County (“County”) Superior Court to 18 days in the County Jail. Rather than serving those days in jail, Talley was deemed eligible to serve the sentence by participation in the Adult Offender Work Program (“AOWP”), a work release program that allows eligible participants to serve their sentence by performing work assignments for participating community and governmental agencies and is coordinated through county’s probation department.

Talley is a physically disabled person due to a condition commonly referred to as clubfoot, which requires him to wear a 10-pound foot brace to walk. The brace limits his mobility and restricts him from certain activity. On a probation form that needed to be completed to enter AOWP, Talley marked an entry indicating he had no problems that would prohibit his participation in the AOWP program. While working one day as part of his participation in AOWP, Talley’s foot brace became lodged in a step, and he fell backwards and was injured.

Talley filed suit against the County for, among other things, its failure to accommodate his preexisting physical disability and failure to engage in the interactive process under the Fair Employment and Housing Act (Government Code section 12900 et seq.; “FEHA”). He argued that AOWP participants are county employees for FEHA purposes. The County filed a motion for summary judgment arguing, among other things, that because there was no remuneration for the work Talley performed in the AOWP, he could not be deemed an employee under FEHA. The trial court granted the County’s motion for summary judgment on all claims, and Talley appealed.

Held: The California Fifth District Court of Appeal noted that under FEHA, it is an unlawful employment practice for an employer or covered entity to fail to make a reasonable accommodation for the known physical or mental disability or medical condition of an applicant or an employee. (Section 12940(m)(1).) It is also an unlawful employment practice under the FEHA for an employer or other covered entity to fail to engage in a timely, good faith, interactive process with the employee or applicant to determine effective reasonable accommodations, if any, in response to a request for reasonable accommodation by an employee or applicant with a known physical or mental disability or known medical condition. (Section 12940(n).)[20]

The Court explained that FEHA claims alleging failure to make reasonable accommodation or failure to engage in the interactive process require a plaintiff to establish, among other elements, that (1) the defendant was an employer or other covered entity as defined by the statute and (2) the plaintiff was an “employee” of the defendant or applied to the defendant for a job. As there was no dispute that the County was an employer within the meaning of the FEHA, the Court proceeded to focus on the central issue of whether Talley was an “employee” of the County within the meaning of FEHA.

On appeal, Talley asserted that the trial court erroneously interpreted FEHA and applied an incorrect legal analysis to conclude, as a matter of law, he was not an employee of county. He also asserted that the trial court made an improper evidentiary ruling and impermissibly weighed the credibility of evidence in reaching its decision.

As other courts had earlier, the Fifth District observed that FEHA’s definition of “employee” provides limited guidance to ascertain who qualifies as an “employee.” See, e.g., Shephard v. Loyola Marymount Univ. (2nd Dist. 2002) 102 Cal.App.4th 837, 842; Vernon v. State of California (1st Dist. 2004) 116 Cal.App.4th 114, 123–124; Bradley v. California Department of Corrections & Rehabilitation (5th Dist. 2008) 158 Cal.App.4th 1612, 1625.

The Fifth District observed that the common law factor analysis utilized by federal and California courts alike, in the context of FEHA and other similar antidiscrimination statutes, considers remuneration a dispositive threshold factor to determine whether an individual may qualify as an employee. Based on the legislative history that was highlighted by Mendoza v. Town of Ross (1st Dist. 2005) 128 Cal.App.4th 625, as well as the 2015 amendments to FEHA and the related legislative bill analysis considering the 2015 amendments, the Fifth District agreed with Mendoza that there “is nothing within the FEHA or its legislative history evincing an intent to depart from the requirement that compensation of some sort is indispensable to the formation of an employment relationship.” (Id., at p. 637.) Thus, the Court determined that an individual cannot be deemed an employee within the meaning of FEHA without the existence of remuneration. The Court added that the existence of remuneration alone does not prove an individual is an employee under the statute, but the lack of remuneration precludes such a finding.

Here, the Fifth District noted that Talley did not receive any pay, health insurance, dental insurance, life insurance, or retirement benefits for participating in the AOWP. Talley contended that the benefits he received from the County by staying out of jail were sufficient remuneration to satisfy the test. He argued that remuneration need not be in monetary form. The Court found that because none of the benefits Talley claimed to have received were financially significant and quantifiable, that alone excluded them from qualifying as remuneration. Because there was no qualifying remuneration, the Court concluded that Talley was not an employee under FEHA and accordingly affirmed the trial court’s grant of summary judgment to the County. 

  1. Trial court erred by substituting its own discretion for that of Sheriff’s Department in determining appropriate penalty for deputy sheriff’s failure to report another deputy’s use of forces against an inmate.

Pasos v. L.A. Cnty. Civil Serv. Comm’n, 2020 Cal. App. LEXIS 700 (2nd Dist. July 27, 2020)

Facts: The Los Angeles County Sheriff’s Department (“Department”) hired Meghan Pasos as a deputy sheriff in June 2007, and she started working at the Men’s Central Jail in November 2007. In early 2010, Pasos was one of five deputies assigned to a floor that housed 1,200 inmates. The Department had not taken any disciplinary action against Pasos before September 2010.

On September 27, 2010, a commissary employee informed Deputy Omar Lopez, Pasos, and Deputy Mark Montez that an inmate had stolen a bag of food items from the canteen, providing a physical description of the inmate. Lopez took the inmate who matched the description, Dequan Ballard, to an elevator landing area outside the view of surveillance cameras, where he conducted a strip search on Ballard while Montez provided security. Meanwhile, Pasos stood outside the landing as a lookout. Lopez jabbed the inmate once to the side of his stomach, and found the stolen bag. Ballard admitted to stealing it. Lopez sent Ballard back to his dormitory. Ballard attempted to intimidate the employee when he returned by calling her a snitch. The employee reported this incident to Montez and Pasos, who told Lopez.

Lopez then pulled Ballard from his dormitory and took him to an area near the control booth outside the view of the surveillance cameras. Lopez placed a piece of paper over the window on the door leading to the dormitory to prevent other inmates from seeing his interaction with Ballard. Pasos again stood outside the control booth area and served as a lookout. Lopez then pushed Ballard’s head against the wall, causing severe bleeding from his face, nose, and mouth areas. Ballard’s blood soaked his clothing and splattered on the wall and the floor in front of the control booth. Pasos did not report Lopez’s use of force, nor seek medical assistance for Ballard.

Ballard reported the two incidents, and surveillance video supported his account. After it conducted an investigation, the Internal Criminal Investigations Bureau (“ICIB”) submitted the case to the District Attorney’s office for review. The District Attorney’s office declined to file felony charges. In June 2012, the case was referred to the Internal Affairs Bureau (“IAB”) for an administrative disposition.

During the IAB investigation, Pasos stated Lopez told her he had shoved Ballard’s head into the wall. Pasos admitted she did not report the incident to a supervisor or write a report. Pasos explained, “It’s kind of like I didn’t want to be labeled as a rat. And just decided to keep my mouth shut […] I was afraid of the repercussions of, you know, ratting on him with my partners…” In April 2013, the Department served Pasos with a letter of intent to discharge her for failing to report the use of force and not seeking medical attention for Ballard, despite observing Ballard bleeding from the nose and being told by Lopez that he had pushed Ballard’s head into a wall. The letter concluded, “Your actions have brought discredit upon yourself and the Department.” The Department charged Pasos with multiple violations of the Department’s Manual of Policy and Procedures (“MPP”) (1996), including sections 3-01/030.05 (general behavior), 3-01/050.10 (performance to standards), 3-01/030.10 (obedience to laws, regulations and orders), 3-10/100.00 (rev. 12/19/12) (use of force reporting and review procedures), and 3-01/040.97 (safeguarding persons in custody). After the acting chief of the Men’s Central Jail conducted a Skelly[21] hearing reviewing the entire case file, he determined discharge was the appropriate discipline. Pasos was discharged in May 2013.

Pasos appealed to the Los Angeles County Civil Service Commission (“Commission”). The acting chief was among those who testified, referencing the public’s concern with the “code of silence” and stating, “Seeing misconduct, and not reporting it to the supervisor and distancing herself, not taking responsibility, not caring for the inmate. … That’s what people believe at times goes on in law enforcement, and that’s something we do not stand for. [¶] When you have a situation like this, you have to take action. You have to discipline the employees, and you have to send a loud and clear message throughout the organization. This will not be tolerated.” The acting chief had concluded Pasos violated the Department’s general behavior policy by “not reporting misconduct, walking away from a situation where an inmate was injured, [and] not ensuring that the inmate received medical care.” He added, “[Pasos] created a situation that would bring embarrassment to the Department.”

The Commission sustained the Department’s decision to discharge Pasos, finding that she intentionally chose not to report Lopez’s use of force because she was “concerned about being considered a ‘rat’ or ‘snitch’ by her co-workers and the impact that may have on relationships with her co-workers and shift partner.” The Commission also found that Pasos failed to seek medical attention for an injured inmate. The Commission determined that Pasos’ “actions w[ere] clearly a discredit to the Department as well as presented potential legal actions.” The hearing officer found the Department met its burden to provide evidence Pasos violated the MPP for general behavior; performance to standards; obedience to laws, regulations and orders; use of force reporting and review procedures; and safeguarding persons in custody.

In February 2017, Pasos filed a verified petition for writ of mandate challenging her discharge. The trial court granted the petition and ordered the Commission to set aside Pasos’ discharge, award her backpay, and reconsider a lesser penalty. The trial court concluded, “The Commission manifestly abused its discretion by upholding the Department’s discharge of Pasos.” The Department appealed, asserting that the trial court erred by substituting its own discretion for that of the Department in determining the appropriate penalty.

Held: The California Second District Court of Appeal explained the applicable legal context. “‘[In] a mandamus proceeding to review an administrative order, the determination of the penalty by the administrative body will not be disturbed unless there has been an abuse of its discretion.’” (Skelly v. State Personnel Board (1975) 15 Cal.3d 194, 217; accord, County of Los Angeles v. Civil Service Com. of County of Los Angeles (2nd Dist. 2019) 40 Cal.App.5th 871, 877.) “Neither an appellate court nor a trial court is free to substitute its discretion for that of the administrative agency concerning the degree of punishment imposed.” (Barber v. State Personnel Bd. (1976) 18 Cal.3d 395, 404; accord, Bautista v. County of Los Angeles (2nd Dist. 2010) 190 Cal.App.4th 869, 877; County of Los Angeles, at p. 877 [“The court may not substitute its own judgment for that of the Commission, nor ‘disturb the agency’s choice of penalty absent “‘an arbitrary, capricious or patently abusive exercise of discretion’” by the administrative agency’ [citation], but must uphold the penalty if there is any reasonable basis to sustain it.”].)

The Second District observed that in its earlier decision in Bautista, the Department discharged a deputy sheriff for engaging in a close personal relationship with a known heroin-addicted prostitute, in violation of the Department’s prohibited-association policy. (Bautista, supra, 190 Cal.App.4th at p. 871.) In upholding the discharge, the Court there considered the division chief’s testimony that the deputy’s “long-standing personal association with [the prostitute], along with her multiple detentions by the Gardena Police Department while he was with her, embarrassed the Department and undermined its reputation in both the law enforcement community and the public it is charged with protecting.” (Id. at p. 878.) The Bautista Court rejected the deputy’s contention the Commission abused its discretion in upholding his termination, noting the Department’s guidelines for discipline expressly stated discharge was the appropriate punishment. (Id. at p. 879.)

The Second District observed here that, similar to Bautista, the acting chief had testified at the Commission hearing that Pasos’ conduct brought potential embarrassment to the Department and undermined its reputation with the public “at a time the Department was under scrutiny by the public.” He described Pasos’ conduct as furthering the code of silence at the Men’s Central Jail, requiring the Department to take action, including disciplining the employees involved and sending “a loud and clear message throughout the organization [that t]his will not be tolerated.”

The Court also noted that Pasos’ conduct in following the code of silence undermined the Department’s trust and confidence in Pasos as a deputy sheriff and negatively impacted the operation of the jail; by not reporting the use of force, as the acting chief had explained, the door was opened for other people to violate policy and conduct themselves in a way that violated laws or policies. The Second District explained that “[i]t is simply intolerable that dishonesty and a culture of silence that countenances abuse of prisoners be permitted within the ranks of those charged with public safety and welfare.” (County of Los Angeles, supra, 40 Cal.App.5th at p. 880.)

Moreover, Pasos had minimized her responsibility to report the use of force, asserting she had no duty to report because she had not personally witnessed the battery. The Court, however, observed that Lopez told her he pushed Ballard’s face into the wall; that Ballard suffered severe bleeding from his face, nose, and mouth areas; and that Pasos saw Ballard wipe up blood from his nose, and saw blood on the wall and Ballard’s clothing. Yet Pasos had initially claimed that she did not report the use of force because she did not want to “rat” on her partner, and alternatively claimed she had no duty to report the use of force whatsoever.

The Court explained that given the Department’s “reasoned explanation” that discharge was necessary in light of Pasos’ furtherance of the code of silence in the Men’s Central Jail and the resulting embarrassment and loss of trust in the Department, the Court could not conclude that the Department abused its discretion. Accordingly, the Second District reversed the judgment of the trial court, and remanded instructing the trial court to enter a new judgment denying the petition for writ of mandate.


United States v. McIntosh hearing must focus on the conduct underlying the charge to determine whether the defendants complied with state marijuana laws.

United States v. Pisarski, 965 F.3d 738 (9th Cir. 2020)

Facts: In 1996, California voters approved the Compassionate Use Act (“CUA”), which decriminalized possession and cultivation of marijuana for medical use, Cal. Health & Safety Code section 11362.5, and provided immunity from prosecution for marijuana possession and cultivation to a “patient, or to a patient’s primary caregiver, who possesses or cultivates marijuana for the personal medical purposes of the patient upon the written or oral recommendation or approval of a physician.” Id. at Section 11362.5(b)(2)(d).

In 2003, California voters passed the Medical Marijuana Program Act (“MMPA”), which permitted the possession, cultivation, possession for sale, and sale of marijuana to “qualified patients, persons with valid identification cards, and the designated primary caregivers of qualified patients and persons with identification cards, who associate within the State of California in order collectively or cooperatively to cultivate cannabis for medicinal purposes.” Id. at Section 11362.775(a).

By July 2012, Andrew Pisarski and Sonny Moore had spent months growing hundreds of marijuana plants. Although they had not yet sold, or even harvested, any plants, Pisarski and Moore had entered into sale agreements with two marijuana collectives, promising to sell them any viable plants for a reimbursement of costs, but receiving no profit from such sale. Before any sale occurred, federal law enforcement officers raided Pisarski and Moore’s rural Humboldt County property, and they were arrested in July 2012. A search uncovered 327 marijuana plants, $416,125 in cash, and two loaded firearms. Additional searches in 2013 produced an additional firearm, ammunition, and a large quantity of gold and silver bars and coins. The government charged Pisarski and Moore with, and the pair pled guilty to, conspiracy to manufacture and possess with intent to distribute marijuana.[22]

Years later, Congress passed the Consolidated and Further Continuing Appropriations Act of 2015 (the “appropriations rider”),[23] which prohibited all expenditures of federal prosecutions for marijuana use, possession, or cultivation if the defendant complied with the state’s medical marijuana laws. A nearly identical rider has been extended in every subsequent appropriations bill (See United States v. Kleinman, 880 F.3d 1020, 1027 (9th Cir. 2017) (describing legislative history)).

The passage of the appropriations rider intervened before Pisarski and Moore’s impending sentencing date. The District Court stayed sentencing until the Ninth Circuit Court of Appeals addressed the effect of the appropriations rider in United States v. McIntosh, 833 F.3d 1163 (9th Cir. 2016). The District Court then, applying McIntosh, held a hearing and found that “any potential [marijuana] sale was sufficiently far into the future that, by the time of such sale, [the defendants] would have had ample time to ensure every aspect of it complied with the [MMPA].” The District Court also found that Pisarski and Moore strictly complied with California’s medical marijuana laws. The District Court enjoined government expenditures on the case “until and unless a future appropriations bill permits the government to proceed.” The government appealed.

Held: The Ninth Circuit Court of Appeals explained that resolution of the appeal rested on the application of state law and the Court of Appeal’s clear error review of the District Court’s factual findings, adding that the Court of Appeals owed considerable deference to the lower court’s findings.

The Ninth Circuit noted that the it had held in McIntosh that defendants may seek to enjoin the expenditure of United States Department of Justice funds only if they “strictly comply with all state-law conditions regarding the use, distribution, possession, and cultivation of medical marijuana.” 833 F.3d at 1178. The Court of Appeals observed that the government did not charge Pisarski and Moore with any past marijuana sales, nor detail any specific impending marijuana sales. The District Court had characterized the case as “something of a temporal conundrum,” explaining that on the date of the charged conduct, it was not apparent that the MMPA would have imposed any compliance requirements for speculative future marijuana sales.

The Ninth Circuit noted that McIntosh determined that appropriations rider “focuses on the conduct forming the basis of a particular charge.” Kleinman, supra, 880 F.3d at 1028 (emphasis added). Pisarski and Moore each had pleaded guilty to one count of conspiracy to manufacture and possess with intent to distribute marijuana in violation of 21 U.S.C. sections 841(a)(1), (b)(1)(C), and 846. The Ninth Circuit explained that the District Court appropriately focused the McIntosh inquiry on the intended future sales of the plants being grown on the Humboldt property.

The Ninth Circuit observed that the MMPA provides a defense to patients who participate in collectively or cooperatively cultivating marijuana if they “show that members of the collective or cooperative: (1) are qualified patients who have been prescribed marijuana for medicinal purposes, (2) collectively associate to cultivate marijuana, and (3) are not engaged in a profit-making enterprise.”[24] Although the MMPA does not specify what is meant by an association of persons who engage in collective or cooperative cultivation for medical purposes, the Ninth Circuit observed that state courts have declined to interpret this requirement rigidly.[25] The Court of Appeals also stated that it was difficult for it to “cherry pick a single principle” from state case law to apply in the McIntosh context, because California courts have emphasized that their findings rest on multiple non-dipositive factors, revealing the highly factual nature of MMPA proceedings.

Considering this conduct, the District Court had determined that, as of the date of Pisarski and Moore’s charged conduct, there was no provision of the MMPA with which they were out of compliance. The subsequent findings of the District Court included the following: that, to the extent any of the 327 marijuana plants were viable, Pisarski and Moore would have sold them to two marijuana collectives for a reimbursement of costs; that, although the men had not shown all members of the two collectives were qualified patients or primary caregivers, California law did not require them to do so “well before any sale”; that the presence of cash and precious metals on the Humboldt property was not evidence that Pisarski and Moore profited or would profit from unconsummated future sales and was consistent with reimbursement for past sales; and that California law did not require Pisarski and Moore to have paid taxes at the time of their arrest given all relevant sales of marijuana were speculative. The lower court then concluded that, considering that details of any prospective sale of marijuana by the defendants were “thin at best,” the defendants’ evidentiary showing sufficed.

In view of the District Court’s findings, the Ninth Circuit considered the record. Pisarski declared that any future sales from the 327 plants would be to two collectives to which he belonged. Unlike the defendant in People v. London,[26] Pisarski and Moore could account for the distribution of their entire future harvest. See id. at 566. This arrangement was confirmed by third-party declarations, coupled with cultivation agreements. Other evidence included multiple physician recommendations that corroborate the collective members’ status as qualified patients. Although the duo did not make a showing as to the status of all members within the two collectives, nothing required them to establish the status of all collective members months before any sale occurred.

The Ninth Circuit deemed the District Court’s findings “thoroughly supported by the record” and concluded that the District Court did not err in concluding Pisarski and Moore were in strict compliance with the California’s medical marijuana laws and the MMPA at the time of their arrest. The Ninth Circuit Court of Appeals accordingly affirmed.

Judge Wallace, dissenting, explained that he would hold that the District Court committed reversible legal error because the District Court did not properly interpret California law. He maintained that at the time of defendants’ charged conduct, there was a general prohibition against possession or distribution of marijuana in California, and that California established statutory exemptions from prosecution only in narrow and carefully-delineated circumstances. In Judge Wallace’s view, the defendants failed to provide evidence bearing on the question whether those narrow circumstances applied in this case. Judge Wallace would hold that the defendants therefore necessarily failed to carry their burden.


  1. District Court abused its discretion in granting nationwide injunctive relief barring DOJ from using three new conditions as funding requirements for Edward Byrne Memorial Justice Assistance Grants.

City & Cnty. of S.F. v. Barr, 965 F.3d 753 (9th Cir. 2020)

Facts: Since 2006, the Edward Byrne Memorial Justice Assistance Grants program has provided federal grant dollars to support state and local criminal justice programs. The United States Department of Justice disburses over $80 million in awards each year pursuant to a statutory formula based on population and violent crime rate.[27] In Fiscal Year (“FY”) 2017, California expected to receive $28.3 million and allocate $10.6 million in sub-grants to its localities. San Francisco expected to receive a sub-grant of $923,401, plus a direct award of $524,845 pursuant to its own FY 2017 application. California has used prior Byrne awards to support programs focused on criminal drug enforcement, violent crime, and anti-gang activities. The City and County of San Francisco has used them to support programs focused on reducing the drug trade and providing services to individuals with substance and mental health issues.

To receive a Byrne grant, a state or local government must submit an application that complies with the statutory requirements outlined in 34 U.S.C. section 10153, in a form set forth in annual solicitation documents that DOJ provides and in accordance with all lawful conditions stated therein.[28]

In FY 2017, the Attorney General of the United States and the Department of Justice announced three new conditions that state and local governments must satisfy to receive Byrne grants. Two of these were the Access and Notice Conditions, “two new express conditions” related to “the ‘program or activity’ that would be funded by the FY 2017 award.” These two conditions required recipient jurisdictions to:

(1) permit personnel of the U.S. Department of Homeland Security (“DHS”) to access any correctional or detention facility in order to meet with an alien (or an individual believed to be an alien) and inquire as to his or her right to be or remain in the United States (the “Access Condition”); and

(2) provide at least 48 hours’ advance notice to DHS regarding the scheduled release date and time of an alien in the jurisdiction’s custody when DHS requests such notice in order to take custody of the alien pursuant to the Immigration and Nationality Act (the “Notice Condition”).

The third condition requires jurisdictions to certify that their laws and policies comply with 8 U.S.C. section 1373, a federal statute prohibiting states and localities from restricting the flow of “information regarding [an individual’s] citizenship or immigration status” between state and local officials and DHS (the “Certification Condition”).

The City and County of San Francisco and the State of California (“Plaintiffs”) are “sanctuary” jurisdictions, which have enacted laws that limit their employees’ authority to assist in the enforcement of federal immigration laws.

In August 2017, Plaintiffs sued the Department of Justice, the Attorney General, and other DOJ officials (collectively, “DOJ”) to prevent DOJ from denying funding of Byrne grants for failure to comply with the Access, Notice, and Certification Conditions (collectively, the “Challenged Conditions”). Plaintiffs asserted that the Challenged Conditions were not authorized by the Byrne statute and violated constitutional separation of powers, the Spending Clause, and the Administrative Procedure Act (“APA”). Plaintiffs also argued that Section 1373 could not be enforced against them because it violated the Tenth Amendment.

Moreover, Plaintiffs maintained the Access and Notice Conditions were inconsistent with the sanctuary laws and policies that Plaintiffs had enacted. Plaintiffs claimed, however, that they could comply with the Certification Condition if Section 1373 were appropriately construed. Because DOJ threatened to withhold FY 2017 funds based on the assertion that Plaintiffs’ sanctuary laws violated Section 1373, Plaintiffs sought declaratory relief narrowly construing Section 1373 and holding that the statute as so construed did not conflict with Plaintiffs’ sanctuary laws.[29]

On summary judgment, the District Court entered declaratory relief in favor of Plaintiffs on all of their legal claims, holding the Challenged Conditions and Section 1373 unconstitutional and unenforceable against Plaintiffs and any other jurisdiction in the United States. It also permanently enjoined DOJ, among other things, from “[u]sing the Section 1373 certification condition, and the access and notice conditions . . . as requirements for Byrne JAG grant funding.” The District Court extended relief to the entire country by providing that the permanent injunction applied to “any California state entity, any California political subdivision, or any jurisdiction in the United States.” DOJ appealed.

Held: On appeal, DOJ argued, among other things, that the Challenged Conditions were imposed pursuant to lawful authority, and that the District Court misconstrued Section 1373 and erred in holding that Plaintiffs’ respective laws did not conflict with Section 1373. DOJ also argued that the District Court abused its discretion by extending the scope of injunctive relief to non-parties nationwide.

The Ninth Circuit Court of Appeals observed that while the appeal here was pending, the Court had upheld a preliminary injunction obtained by the City of Los Angeles against DOJ’s enforcement of the Access and Notice Conditions, holding that DOJ lacked statutory authority to implement them. See City of Los Angeles v. Barr, 941 F.3d 931, 945 (9th Cir. 2019).[30] In City of Los Angeles, the Ninth Circuit Court held that the Access and Notice Conditions did not constitute “special conditions” or “priority purposes” under 34 U.S.C. section 10102(a)(6).[31] City of Los Angeles also rejected the Department of Justice’s assertion that 34 U.S.C. Section 10153(a)(5)(C) or 34 U.S.C. Section 10153(a)(4) provided statutory authority; the Court determined that the Access and Notice Conditions requirements far exceeded what the statutory language of these provisions required. Consistent with its analysis in City of Los Angeles, the Ninth Circuit here affirmed the District Court’s order declaring the Access and Notice Conditions unlawful and enjoining DOJ from enforcing them against Plaintiffs.

Turning to the Certification Condition, the Ninth Circuit noted that it had recently interpreted Section 1373 in United States v. California,[32] another decision that was rendered while the appeal in the instant case was pending. Section 1373, in relevant part, prohibits states and local governments from restricting their officials from sharing “information regarding the citizenship or immigration status, lawful or unlawful, of any individual” with DHS. In California, the Ninth Circuit held that Section 1373’s information-sharing requirements applied to “just immigration status” or “a person’s legal classification under federal law.”[33] Consistent with its analysis in that case, the Ninth Circuit here held that the remaining California and San Francisco laws at issue also complied with Section 1373 and could not be cited in relation to the Certification Condition as a basis to deny Byrne funding. The Ninth Circuit accordingly affirmed the District Court’s ruling holding that Plaintiffs’ respective sanctuary laws complied with Section 1373, and upheld the injunction barring DOJ from withholding or denying Byrne funds to Plaintiffs based on the assertion that these laws violated Section 1373 and/or the Certification Condition.

Regarding the District Court’s imposition of a nationwide injunction, the Ninth Circuit explained “[a]lthough ‘there is no bar against . . . nationwide relief in federal district court or circuit court,’ such broad relief must be ‘necessary to give prevailing parties the relief to which they are entitled.’” California v. Azar, 911 F.3d 558, 582 (9th Cir. 2018) (quoting Bresgal v. Brock, 843 F.2d 1163, 1170-71 (9th Cir. 1987)). The Court explained that “[o]nce a constitutional violation is found, a federal court is required to tailor the scope of the remedy to fit the nature and extent of the constitutional violation.” City & Cty. of San Francisco v. Trump, 897 F.3d 1225, 1244 (9th Cir. 2018) (quoting Hills v. Gautreaux, 425 U.S. 284, 293-94 (1976)).

On appeal, Plaintiffs argued that they were entitled to nationwide relief due to the “far-reaching impact” of the Challenged Conditions upon “all types [of] grant recipients across the geographical spectrum,” pointing to declarations by grant recipients in the record. Plaintiffs argued that the broad impact made this “one of the ‘exceptional cases’ in which program-wide relief is necessary.” The District Court agreed, explaining that, before issuing a nationwide injunction, it must “undertake ‘careful consideration’ of a factual record evidencing ‘nationwide impact,’ or in other words, ‘specific findings underlying the nationwide application of the injunction.’”[34]

The Ninth Circuit explained that the District Court erred by considering only this rule, without addressing other forms of tailoring when issuing a remedy. The Ninth Circuit noted that it had long held that an injunction “should be no more burdensome to the defendant than necessary to provide complete relief to the plaintiffs before the court. “Los Angeles Haven Hospice, Inc. v. Sebelius, 638 F.3d 644, 664 (9th Cir. 2011) (quoting Califano v. Yamasaki, 442 U.S. 682, 702 (1979)) (internal quotation marks omitted). The Court explained that under this rule, the appropriate inquiry would be whether Plaintiffs themselves would continue to suffer their alleged injuries if DOJ were enjoined from enforcing the Challenged Conditions only in California. The District Court had not made such a finding, and, stated the Court of Appeal, “it is not apparent how the record would support one.”

Plaintiffs argued that by imposing the Challenged Conditions, DOJ presented “an unacceptable choice: either comply with [the Challenged Conditions] and abandon local policies that San Francisco has found to promote public safety and foster trust and cooperation between law enforcement and the public, or maintain these policies but forfeit critical funds that it relies on to provide essential services to San Francisco residents.” San Francisco claimed that it faced “the immediate prospect of losing over $1.4 million” in program funds. California claimed it was at risk of “losing $31.1 million,” which would require many State and local law enforcement agencies’ programs to be cut.

Considering these claimed injuries, the Ninth Circuit determined that an injunction barring DOJ from enforcing the Challenged Conditions within California’s geographical limits would resolve Plaintiffs’ injuries by returning Plaintiffs to the status quo. The Court explained that extending this same relief to non-party jurisdictions beyond California’s geographical bounds would do nothing to remedy the specific harms alleged by Plaintiffs. Because the municipal and State plaintiffs here “‘operate[d] in a fashion that permits neat geographic boundaries’”[35] and did not operate or suffer harm outside of their own borders, the Ninth Circuit determined that the geographical scope of an injunction could be “neatly drawn to provide no more or less relief than what is necessary to redress Plaintiffs’ injuries.” The Court distinguished this case from one involving plaintiffs that operated and suffered harm in multiple jurisdictions, where the process of tailoring an injunction could be more complex. The Court of Appeal concluded that a nationwide injunction was therefore unnecessary to provide complete relief, and that the District Court’s determination otherwise was overbroad and an abuse of discretion.

In sum, the Ninth Circuit Court of Appeals upheld the permanent injunction barring DOJ “from withholding, terminating, or clawing back Byrne funding based on the Challenged Conditions and statutes at issue.” However, the Court vacated the nationwide reach of the permanent injunction and limited its reach to California’s geographical boundaries. Moreover, the Court of Appeals did not remand to the District Court for further consideration because Plaintiffs had not established any nexus between their claimed injuries and the nationwide operation of the Challenged Conditions, nor proposed any reason why limiting the injunction along state boundaries would not grant them full relief.

For a more detailed discussion of this case, please see Client Alert Vol. 35, No. 23, available at

  1. Petitioner’s special condition of supervised release prohibiting him from residing in town found to trigger his alcohol- and drug-related behavior was affirmed.

United States v. Many White Horses, 964 F.3d 825 (9th Cir. 2020)

Facts: In 2008, James Many White Horses, an enrolled member of the Blackfeet Indian Nation, pled guilty to conspiracy to possess with intent to distribute methamphetamine. He was sentenced to 78 months in custody and 180 months of supervised release. Between 2014 and 2018, Many White Horses violated the terms of his supervised release nine times, which resulted in four revocations. Eight violations involved the use of either alcohol, methamphetamine, or another illegal substance, and all but one took place in Browning, Montana where Many White Horses resided much of the time. Browning is the tribal headquarters of the Blackfeet Nation and the sole incorporated town on the Blackfeet Reservation. In 2019, while on supervised release, Many White Horses used methamphetamine in Great Falls, Montana. While still intoxicated, he made the two-hour drive back to his mother’s home in Browning. When he arrived home, his mother called his probation officer to report the supervised release violation.

As a result of this violation, the District Court revoked supervised release and imposed a sentence of six months custody and a new term of five years of supervised release. The District Court also imposed a set of “Special Conditions” on the term of supervised release. Special Condition 11 prohibited Many White Horses from residing in Browning, or visiting the town without the prior approval of his probation officer. To obtain approval, he was required to provide the probation officer with the purpose of his visit to Browning, the expected duration of his stay in Browning, a phone number at which he could be reached during his stay in Browning, and address(es) of the place(s) he would visit in Browning, and a list of persons he intended to see in Browning. Special Condition 11 also required Many White Horses to contact the supervising probation officer as directed during his stay in Browning. The District Court also imposed Special Condition 12, which required Many White Horses to participate in a short-term residential treatment program at a particular facility in Browning.

Many White Horses appealed Special Condition 11, arguing in part that the condition was substantively unreasonable because it involved a greater deprivation of liberty than was reasonably necessary to accomplish the goals of supervised release.

Held: The Ninth Circuit Court of Appeals explained that Congress has specifically authorized District Courts to impose special conditions of supervised release requiring that a defendant “refrain from frequenting specified kinds of places or from associating unnecessarily with specified persons; . . . reside in a specified place or area, or refrain from residing in a specified place or area; . . . [and] report to a probation officer as directed by the court or the probation officer.” 18 U.S.C. section 3563(b)(6), (13), (15). The Court explained that, consistent with this statutory authority, it was well settled that a District Court may impose a geographic or residency restriction when it is properly supported by the record and substantively reasonable. See United States v. LaCoste, 821 F.3d 1187, 1192-93 (9th Cir. 2016).

The Ninth Circuit observed that while a District Court has broad discretion to impose special conditions of supervised release, the conditions must be “reasonably related” to deterrence, protection of the public, and/or rehabilitation and cannot involve “a greater deprivation of liberty than is reasonably necessary for the purposes [of deterrence, protection of the public, and/or rehabilitation].” 18 U.S.C. section 3583(d)(1)-(2).

The Court of Appeals noted that the District Court imposed the condition only after nine violations resulted in four revocations of Many White Horses’ supervised release. Since 2014, Many White Horses had engaged in a clear pattern of destructive behavior while in Browning, including repeated use of methamphetamine and alcohol, drunken and disorderly conduct, and physical and domestic abuse—all of which took place while he was on release. The Ninth Circuit noted that even after the appeal here was filed, but before oral argument, Many White Horses’ term of supervised release was revoked yet again after he received permission to visit Browning, and while there, used methamphetamine and became violent.

In the Ninth Circuit’s view, the District Court crafted a restriction that addressed purposes of rehabilitation and public safety. The District Court had recognized that Browning was a magnet and a trigger for behavior that violated the conditions of Many White Horses’ supervised release, a view that even Many White Horses himself acknowledged at his most recent revocation hearing, stating, “I think you’re right, your Honor.” The Ninth Circuit stated that the insufficiency of less restrictive conditions was clear, in light of Many White Horses’ repeated failures amidst numerous chances to serve his term of supervised release under lesser restrictions. Moreover, the District Court was also cognizant of Many White Horses’ need for rehabilitation and sensitive to the significance of Browning in his life. In light of that significance, the lower court ordered Many White Horses to attend a temporary residential drug treatment program at a facility located in Browning.

Moreover, Special Condition 11 only required that Many White Horses not live in Browning itself. He was free to reside in a nearby unincorporated town, or in one of the other many small towns surrounding the reservation. He could visit Browning for any other purpose, so long as he obtained permission and provided related information to his probation officer. These factors, explained the Ninth Circuit, helped to mitigate the severity of the prohibition of Many White Horses from residing in Browning itself. He could still visit his family and community, participate in tribal life, to receive treatment in Browning, and live nearby.

The Ninth Circuit Court of Appeals therefore concluded that the District Court chose a path that “involve[d] no greater deprivation of liberty” than was reasonably necessary under the circumstances and was reasonably related to deterrence, protection of the public, and rehabilitation. Accordingly, the Court affirmed.

  1. Under the Major Crimes Act, only federal government, not State, may prosecute Indians for major crimes committed in Indian country.

McGirt v. Oklahoma, 140 S. Ct. 2452 (2020)

Facts: Forced to leave their ancestral lands in Georgia and Alabama, the Creek Nation received assurances that their new lands in the West would be secure forever. In exchange for ceding “all their land, East of the Mississippi river,” the United States government agreed by treaty that “[t]he Creek country west of the Mississippi shall be solemnly guarant[e]ed to the Creek Indians.” Treaty With the Creeks, Arts. I, XIV, Mar. 24, 1832, 7 Stat. 366, 368 (“1832 Treaty”). Both parties settled on boundary lines for a new and “permanent home to the whole Creek nation,” located in what is now Oklahoma. Treaty With the Creeks, preamble, Feb. 14, 1833, 7 Stat. 418 (“1833 Treaty”). The government further promised that “[no] State or Territory [shall] ever have a right to pass laws for the government of such Indians, but they shall be allowed to govern themselves.” 1832 Treaty, Art. XIV, 7 Stat. 368. The 1833 Treaty promised that the United States would “grant a patent, in fee simple, to the Creek nation of Indians for the [assigned] land” to continue “so long as they shall exist as a nation, and continue to occupy the country hereby assigned to them,” Art. III, 1833 Treaty, preamble, 7 Stat. 418, at p. 419. The patent formally issued in 1852.

Though the early treaties did not refer to the Creek lands as a “reservation,” similar language in treaties from the same era has been held sufficient to create a reservation, see, e.g., Menominee Tribe v. United States, 391 U. S. 404, 405 (1968). Moreover, later Acts of Congress referred repeatedly to the “Creek reservation.” For example, in 1866, the United States entered another treaty with the Creek Nation which reduced the size of the land set aside for the Creek. However, with the Treaty, Congress explicitly restated its commitment that the remaining land would “be forever set apart as a home for said Creek Nation,” which it now referred to as “the reduced Creek reservation.” Treaty Between the United States and the Creek Nation of Indians, Arts. III, IX, June 14, 1866, 14 Stat. 786, 788. Throughout the late 19th century, many other federal laws also expressly referred to the Creek Reservation.[36] Moreover, in an 1856 Treaty, Congress promised that “no portion” of Creek lands “would ever be embraced or included within, or annexed to, any Territory or State,” Treaty of 1856, Art. IV, 11 Stat. 700, and that the Creeks would have the “unrestricted right of self-government,” with “full jurisdiction” over enrolled Tribe members and their property, id., at 704.

Major Crimes Act, McGirt, and the Creek Nation

The Major Crimes Act (“MCA”) provides that, within “the Indian country,” “[a]ny Indian who commits” certain enumerated offenses “shall be subject to the same law and penalties as all other persons committing any of [those] offenses, within the exclusive jurisdiction of the United States.” 18 U. S. C. section 1153(a). “Indian country” includes “all land within the limits of any Indian reservation under the jurisdiction of the United States Government.” Section 1151.

Jimcy McGirt was convicted by an Oklahoma state court of three serious sexual offenses. He unsuccessfully argued in state postconviction proceedings in the Court of Criminal Appeals of Oklahoma that the State lacked jurisdiction to prosecute him because he was an enrolled member of the Seminole Nation of Oklahoma and his crimes took place on the Creek Reservation. McGirt sought review by the United States Supreme Court.

The Creek Nation joined Mr. McGirt as amicus curiae because McGirt’s personal interests implicated the Tribe’s interests. It was undisputed that McGirt’s crimes were committed on lands described as the Creek Reservation in an 1866 treaty and federal statute. However, in seeking to defend the state-court judgment convicting McGirt, Oklahoma set aside any procedural defenses and requested that the United States Supreme Court confirm that the land once given to the Creeks was no longer a reservation now.

Held: The United States Supreme Court held that for MCA purposes, land reserved for the Creek Nation since the 19th century remains “Indian country.” The Court stated that there was no question that Congress established a reservation for the Creek Nation, and that to determine whether a tribe continues to hold a reservation, “there is only one place we may look: the Acts of Congress.” The Court explained that once a federal reservation is established, only Congress can diminish or disestablish it. To do so would require a clear expression of congressional intent, “[c]ommon[ly with an] ‘[e]xplicit reference to cession or other language evidencing the present and total surrender of all tribal interests.’” Nebraska v. Parker, 577 U. S. 481, ___-___, 136 S. Ct. 1072, 194 L. Ed. 2d 152 (2016) (slip op., at 6). The Court determined that although Congress had since broken “more than a few promises” to the Tribe, the Creek Reservation nevertheless persists today. The Supreme Court explained that there “simply arrived no moment when any Act of Congress dissolved the Creek Tribe or disestablished its reservation.”

Oklahoma argued that Congress ended the Creek Reservation during the so-called “allotment era”—a period when Congress sought to pressure many tribes to abandon their communal lifestyles and parcel their lands into smaller lots owned by individual tribal members. Rejecting this argument, the Supreme Court explained that missing from the allotment-era agreement with the Creek,[37] however, was any statute evincing anything like the “present and total surrender of all tribal interests” in the affected lands. Moreover, the Court had already rejected the argument in prior decisions that allotments automatically ended reservations.[38]

Oklahoma also claimed that historical practice and demographics were enough by themselves to prove disestablishment. The Court disagreed, noting that Oklahoma did “not point to any ambiguous language in any of the relevant statutes that could plausibly be read as an Act of disestablishment. Nor may a court favor contemporaneous or later practices instead of the laws Congress passed.”

Oklahoma argued in the alternative that Congress never established a reservation but instead created a “dependent Indian community.” The Supreme Court declared that Congress established a reservation, not a dependent Indian community, for the Creek Nation. The Court explained that to hold that the Creek never had a reservation would require willful blindness to the statutory language and a belief that the land patent the Creek received somehow made their tribal sovereignty easier to divest.

The United States Supreme Court thus concluded that the land once granted to the Creek Nation as a reservation retained that status as Indian country because Congress had not clearly expressed intent to the contrary. The Supreme Court accordingly reversed the judgment of the Court of Criminal Appeals of Oklahoma.

Chief Justice Roberts, joined by Justice Alito, Justice Kavanaugh, and almost fully by Justice Thomas, dissented. Chief Justice Roberts contended that the land was no longer a Creek Indian reservation, so Oklahoma had jurisdiction to prosecute McGirt. Roberts expressed the view that Congress enacted a series of statutes beginning in 1890 and culminating with Oklahoma statehood that (1) established a uniform legal system for Indians and non-Indians alike; (2) dismantled the Creek government; (3) extinguished the Creek Nation’s title to the lands at issue; and (4) incorporated the Creek members into a new political community—the State of Oklahoma. Chief Justice Roberts declared that these statutes evinced Congress’ intent to disestablish the reservation and create a new State in its place. Justice Clarence Thomas added a separate dissent stating that the United States Supreme Court lacked jurisdiction to review the state court judgment.

  1. Ample evidence showed that defendant actively participated in gang, was aware that its members engaged in criminal gang activity, and promoted felonious conduct of its members.

People v. Vargas, 9 Cal. 5th 793 (2020)

Facts: The evening of April 1, 1999, Laura Espinoza and Amor Gonzalez responded to a page from Eloy Gonzalez (not related to Amor). Espinoza drove with Amor and, picked up Eloy, Miller, and defendant Eduardo David Vargas from Vargas’ apartment. Two days earlier, the trio had been involved in two separate armed robberies. Espinoza parked in the Santa Ana Zoo parking lot near her apartment complex, and went to her home. When Espinoza left her car, Vargas and Miller also got out and went across the street. When Espinoza returned to her car after, all three men – Vargas, Eloy Gonzalez, and Miller – were gone.

Matthew Stukkie and Jesse Muro were walking away from Stukkie’s house in the vicinity. As they walked past the zoo, they saw Espinoza’s car parked across the street in the zoo’s parking lot. They also noticed some men near the car. “A couple guys” approached Stukkie and Muro and held guns to their heads, and told them not to look back or look at the faces of the gunmen. The man who held a gun to Stukkie’s head repeatedly asked for money, and took Stukkie’s bracelet and pager. Stukkie became aware that there were three men behind him, but was unable to fully see the men with the gun pointed at the back of his head, and had also lost sight of Muro. Stukkie heard a gunshot, and was ordered to lay on the ground. After a few minutes, Stukkie got up and realized Muro had been shot. Police arrived shortly thereafter. Muro was transferred to a hospital but died there of the two gunshot wounds to the head.

Simon Cruz was robbed of his wallet at gunpoint at his area apartment complex shortly after the time that another person reported hearing the gunshots. After the gunshots sounded, Eloy Gonzalez and Miller ran back and got into Espinoza’s car where she had been waiting with Amor. Espinoza drove the car out, and picked up Vargas after Amor spotted him near a motel Once Vargas was in the car, Gonzalez and Miller expressed “[expletive]ing Peewee,” and told Vargas he would “regret it for the rest of his life,” he was “going to get taxed for that,” and that they “should kick his ass for this.” While in the car, Vargas told the group he shot Muro because Muro “was going to fight back,” “he got up,” and “he came back at” Vargas. Espinoza dropped Vargas off at his apartment, and Espinoza, Eloy Gonzalez, Miller, and Amor then rented a room at a Motel 6 in Stanton.

Shortly after midnight on April 2, a deputy sheriff patrolling the parking lot of the Motel 6 (where he had previously made many stolen vehicle and narcotics-related arrests) spotted the four in and around a car with beer bottles around. After questioning them, the deputy called for backup, conducted pat-down searches of Eloy Gonzalez and Miller, and searched the car. The searches produced Cruz’s wallet, $950 in cash, a key to the motel room, and – in Gonzalez’s pocket – Stukkie’s bracelet in Gonzalez’s pocket. A search of the Motel 6 room revealed Vargas’ driver’s license and Amor’s phone book. The phone book appeared to have gang style writing on it. On the back of the book was written the name “Scrappy,” Gonzalez’s moniker, along with the date of Muro’s murder: April 1, 1999. Espinoza told police about picking up Vargas, Miller, and Gonzalez the day before.

The Tustin Police Department determined that Vargas was on probation and subject to a search condition. A further term of Vargas’ probation prohibited him from possessing a firearm. Espinoza took police to Vargas’ home. Vargas was arrested and asked if he was on probation and subject to a search condition. Vargas answered those questions affirmatively. Detectives searched Vargas’ home and seized two firearms, including one used in the Muro homicide, and matching bullet casings were found at the scene of the Muro shooting. Also found in Vargas’ home were depictions of gang-related graffiti, specifically referencing Southside—a criminal street gang—along with Vargas’ moniker. A search of Miller’s home revealed further evidence of gang participation, including an image of a Southside roster listing Gonzalez, Miller, and Vargas’ monikers.

Police also lifted a palm print from the trunk of a Nissan Sentra parked near where Muro was shot, which was later matched to Vargas. The wallet belonging to Muro was found in some bushes near the location where Vargas had returned to the car with Amor, Espinoza, Miller, and Eloy Gonzalez therein. Vargas was also identified, along with Miller and Eloy Gonzalez, in lineups by victims of robberies that the three were tied to that occurred on March 30, 1999.

Vargas was convicted of one count of first degree murder, six counts of robbery, one count of attempted robbery, one count of possessing a firearm while on probation, and two counts of active participation in a criminal street gang (Penal Code section 186.22(a), defined at the time of the offense as “street terrorism”). The jury also found true a robbery-murder special-circumstance allegation. The jury also found true allegations that Vargas personally discharged a firearm causing death during the robbery murder (Section 12022.53(d)), and that the crimes were committed with the intent to promote a criminal street gang (Sections 186.22(b), 12022.53(b), (e)(1)). After a penalty trial, the jury returned a verdict of death, and the trial court sentenced Vargas to death. An automatic appeal followed.

Held: On appeal, Vargas claimed, among other things, that the evidence was insufficient to support his convictions of active participation in a criminal street gang, suggesting that he was simply, associated with gang members, rather than an active participant.

Penal Code section 186.22(a) states in relevant part: “Any person who actively participates in any criminal street gang with knowledge that its members engage in, or have engaged in, a pattern of criminal gang activity, and who willfully promotes, furthers, or assists in any felonious criminal conduct by members of that gang, shall be punished.” Section 186.22(b)(1), the so-called “gang enhancement,” is applicable to “‘any person’ convicted of a number of enumerated felonies, including murder” and being a felon in possession of a firearm, provided certain conditions are present. (People v. Rivera (2019) 7 Cal.5th 306, 331; Section 186.22(b)(1).) The crime must be “(1) ‘committed for the benefit of, at the direction of, or in association with any criminal street gang,’ and (2) ‘with the specific intent to promote, further, or assist in any criminal conduct by gang members.’” (Rivera, at p. 331; Section 186.22(b)(1).) If a gang-related crime is committed for the particular purpose of helping members of the gang, the enhancement is applicable, although “‘[n]ot every crime committed by gang members is related to a gang.’” (Rivera, at p. 331.)

The Supreme Court of California noted that at trial, Tustin Police Officer Jeff Blair, “Tustin’s first and only gang investigator” at the time, had presented expert testimony that Miller, Eloy Gonzalez, and Vargas were all members of the Southside gang, a criminal street gang. Officer Blair worked on over 500 gang cases and had had contact with over 1,000 gang members. Officer Blair was familiar with a number of gang tattoos, and had noted that these were seen less frequently than in previous years because they might signify gang membership if viewed by a jury. Officer Blair had testified that a tattoo depicting three dots meaning “my crazy life” was typical of gang membership. Vargas had a tattoo of three dots on his hand.

The officer testified that criminal street gangs habitually maintained rosters regarding membership, and a name would not be listed on a roster if the individual was not a member of a gang. Officer Blair testified that an image of a gang roster found at Miller’s home listed Miller, Eloy Gonzalez, and Vargas as members of the Southside gang. (Id.)

The Supreme Court of California found that ample evidence was presented at trial demonstrating, or permitting a finder of fact to infer, that Vargas (1) actively participated in the Southside gang, (2) was aware that its members—including Miller and Eloy Gonzalez—”engaged in a pattern of criminal gang activity,” and (3) promoted the felonious conduct of its members. In addition to Officer Blair’s testimony regarding Vargas’ name on the roster of Southside gang members, Vargas’ mother testified that Vargas and Miller had been friends since 1987. While in custody awaiting trial, Vargas wrote three letters to Miller containing language and slang used by gang members. Vargas’ mother also testified that her son and Eloy Gonzalez had been acquainted for some time. Miller and Eloy Gonzalez were both known to be Southside gang members.

Moreover, the Court concluded that a factfinder could surmise that Vargas, Miller, and Eloy Gonzalez engaged in a pattern of criminal activity together; all three were present when credit cards from the first of the March 30, 1999 robberies were used at a pager store.[39] All three participated in the second March 30 robbery and an attempted robbery, and all three were also present during the robbery of Stukkie and the robbery and murder of Muro. Officer Blair had testified that gang members regularly commit crimes together to provide each other with “backup,” explaining that the robberies in this case had been committed for the benefit of, i.e., to promote the felonious conduct of, the Southside gang. He had also testified that the robberies would have financially benefitted the Southside gang, permitting its members to purchase alcohol, drugs, and motel rooms. He had also stated that the robberies would have enhanced the gang’s reputation as dangerous by instilling fear in community members. The Court explained that, viewed in the light most favorable to the judgment, this evidence was sufficient for a reasonable juror to have concluded that Vargas was an active participant in the Southside gang.

The Supreme Court accordingly affirmed.

  1. An agency must not add confusing information to required notice that could mislead affected parties about the timing for seeking judicial review.

Alford v. Cnty. of L.A., 51 Cal. App. 5th 742 (2nd Dist. 2020)

Facts: Jay Alford filed a grievance after the Los Angeles County Department of Children and Family Services (the “Department”) placed his name on the Child Abuse Central Index. After a grievance hearing, the Department decided no modification should be made to the previously substantiated allegations of child abuse by Alford, and so his name stayed on the Index. The Department denied the grievance and served its written decision upon plaintiff by mail. The Department’s notice stated in part: “The decision made by the Director of the Department of Children and Family Services regarding the [Child Abuse Central Index] determination is final. If you disagree with this decision, you can file a petition…for a Writ of Mandate pursuant to California Code of Civil Procedure 1094.5, and request a review of the decision in the Los Angeles Superior Court. Timelines for filing Writs of Mandate are governed by California Civil Code of Procedure 1094.6. This statute requires you file any petition or other paper seeking review no later than the 90th day on which the decision is deemed final. The decision will become final 90 days from the date it is placed in the mail.”

On February 17, 2016, four months after the notice was served, Alford filed a petition for writ of mandate under Section 1094.5, seeking to overturn the decision to keep his name on the Child Abuse Central Index. The trial court granted summary judgment for the Department on the ground that Alford’s petition was barred by the statute of limitations. Alford appealed, contending the Department did not serve notice of its decision in compliance with the Code of Civil Procedure section 1094.5, and, for that reason, the statute of limitations did not bar his petition.

Held: Code of Civil Procedure section 1094.6(b), provides that where the agency decision is in writing, any petition challenging the agency decision must be filed within 90 days of the decision becoming final. The decision becomes final on the date the decision is served by first class mail. “The triggering point for the limitations provision in issue is the ‘date on which the decision becomes final.’” (Donnellan v. City of Novato (1st Dist. 2001) 86 Cal.App.4th 1097, 1104.)

The California Second District Court of Appeal noted that the Department gave notice to Alford by mail on October 13, 2015, and he received it on October 20, 2015. He did not file his petition until February 17, 2016, four months after the notice was served. The Court observed, however, that the notice did not clearly tell plaintiff when the decision became final. First, the notice said the decision “is final,” and that Section 1094.6 required plaintiff to file any petition no later than “the 90th day on which the petition is deemed final.” However, the notice also said the decision would become final “90 days from the date it is placed in the mail.” Thus, the Department’s notice gave Alford two inconsistent dates on which its decision became final.

The Court stated that an agency must not add confusing information to the required notice that could mislead affected parties about the timing for seeking judicial review, as occurred here. The Court found that the Department’s notice made it reasonable for Alford to believe its decision would not become final until 90 days after it was mailed, and under that scenario, his petition would have been timely. The Court concluded that because the Department created ambiguity as to the date the Department’s decision was final, the Department’s notice did not comply with the Section 1094.6’s requirements, and so the statute of limitation did not bar Alford’s petition. The Second District Court of Appeal accordingly reversed the trial court’s grant of summary judgment.

  1. California Department of Corrections and Rehabilitation’s regulation excluding sex offenders from early parole consideration is inconsistent with California Constitution Article I section 32.

In re Chavez, 51 Cal. App. 5th 748 (6th Dist. 2020)

Facts: In 1994, Frank Ray Chavez was convicted by plea of assault with intent to commit rape (Penal Code section 290), a sex offense requiring sex offender registration (Section 290(c)). He was sentenced to nine years in state prison. In 1999, Chavez pleaded guilty to failing to register as a sex offender (Section 290.018(b)) and admitted five strike allegations. Chavez was sentenced to a “Three Strikes” law term of 25 years to life for the failure to register offense.

Proposition 57 took effect in November 2016, with express purposes including saving money by reducing wasteful spending on prisons and to “[s]top the revolving door of crime by emphasizing rehabilitation…”[40] Among the provisions added by Proposition 57 was Section 32 of article I of the California Constitution. Section 32 provides in relevant part that “[a]ny person convicted of a nonviolent felony offense and sentenced to state prison shall be eligible for parole consideration after completing the full term for his or her primary offense.” (Cal. Const., art. I section 32.) Proposition 57’s Voter Information Guide provided that “[t]his act shall be liberally construed to effectuate its purposes.”

After Proposition 57 took effect, the California Department of Corrections and Rehabilitation (“CDCR”) adopted regulations implementing early parole consideration for inmates under Section 32. The CDCR’s regulations provided that “an inmate is not eligible for a parole consideration hearing by the Board of Parole Hearings under [Cal. Code Regs., tit. 15, section 2449.32 (early parole consideration under Section 32)] if the inmate is convicted of a sexual offense that currently requires or will require registration as a sex offender under the Sex Offender Registration Act, codified in Sections 290 through 290.024 of the Penal Code.”[41] The CDCR enacted this restrictive regulation because, in its view, “‘these sex offenses demonstrate a sufficient degree of violence and represent an unreasonable risk to public safety to require that sex offenders be excluded from nonviolent parole consideration.’” (In re Gadlin (2019) 31 Cal.App.5th 784, 788.)

In February 2018, Chavez’s request to be granted early parole consideration under Proposition 57 was denied. In May 2018, Chavez filed a petition for a writ of habeas corpus raising a number of issues, including his challenge to the CDCR’s refusal to grant him early parole consideration under Proposition 57. The superior court denied his petition as to the other issues, but in October 2018 it issued an order to show cause on the Proposition 57 issue. In March 2019, the superior court granted Chavez’s petition as to the Proposition 57 issue, and ordered the CDCR to “provide Chavez with early parole consideration within 60 days” of its order. The superior court concluded that the CDCR’s regulation was inconsistent with Proposition 57 and therefore did not justify the CDCR’s refusal to grant Chavez early parole consideration. CDCR subsequently appealed.

Held: On appeal, CDCR argued that its regulation excluding sex offenders from early parole consideration under Proposition 57 was valid because it was consistent with the CDCR’s understanding of the voters’ intent in enacting Section 32. CDCR asserted that “Proposition 57’s intent was to implement parole reform for nonviolent inmates who are not sex offenders.”

The California Sixth District Court of Appeal disagreed, observing that Section 32 provides that “[a]ny person convicted of a nonviolent felony offense and sentenced to state prison shall be eligible for parole consideration after completing the full term for his or her primary offense.” (Italics added.) The Court explained that this provision broadly applied to “[a]ny” inmate convicted of a nonviolent felony and, because it used “shall,” was explicitly mandatory. The Court noted that the provision contained no suggestion that it was restricted to those lacking certain prior convictions. Moreover, the fact that Proposition 57 expressly required that its provisions “shall be liberally construed to effectuate its purposes” rebutted any possible inference that the voters intended for this broad mandate to be restricted by the CDCR’s enactment of regulations deeming ineligible some of those identified as eligible in Section 32. (Voter Information Guide, supra, text of Prop. 57 section 9, p. 146, italics added.)

The Sixth District Court of Appeal therefore concluded that CDCR’s restrictive regulation was inconsistent with Section 32’s express provisions, and Chavez was entitled to early parole consideration under Section 32. The Court accordingly affirmed.

[1] See Scott v. Harris, 550 U.S. 372, 380 (2007) (citing Fed. R. Civ. P. 56(c)).

[2] The Ninth Circuit observed that Plumhoff instructed that Monzon’s reckless, high-speed driving posed a severe threat to public safety that may itself have justified the use of deadly force. However, the Circuit Court explained that it need not consider that issue because the Court already determined here that the use of deadly force was reasonable to protect the officers whose lives were threatened by the accelerating van.

[3] Castellanos was charged, in part, with “transporting a controlled substance from one county to another noncontiguous county” under Health & Safety Code section 11352(b).

[4] See Terry v. Ohio, 392 U.S. 1 (1968).

[5] See United States v. Orozco, 858 F.3d 1204, 1210-11 (9th Cir. 2017) (observing that “actual motivations do matter” in administrative-search cases (internal quotation marks omitted).

[6] Nev. Rev. Stat. section 453D.400(2).

[7] See Nev. Rev. Stat. sections 453D.100(1)(a), 484C.110, 484C.400.

[8] See Cal. Penal Code section 25400.

[9] Penal Code section 25400(a)(1).

[10] Section 1546.1(c)(6) states: “A government entity may access electronic device information by means of physical interaction or electronic communication with the device only as follows: [¶] … [¶] If the government entity, in good faith, believes that an emergency involving danger of death or serious physical injury to any person requires access to the electronic device information.”

Subdivision (h) states: “If a government entity obtains electronic information pursuant to an emergency involving danger of death or serious physical injury to a person, that requires access to the electronic information without delay, the government entity shall, within three court days after obtaining the electronic information, file with the appropriate court an application for a warrant or order authorizing obtaining the electronic information or a motion seeking approval of the emergency disclosures that shall set forth the facts giving rise to the emergency … .”

[11] Scafidi also brought state law tort claims against the same defendants. The Ninth Circuit ultimately affirmed the District Court’s grant of summary judgment to the defendants on these state law claims.

[12] Ticknor v. Choice Hotels Int’l, Inc., 265 F.3d 931, 939 (9th Cir. 2001) (internal quotation marks and citations omitted).

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

[14] See, e.g., Davis v. United States, supra, 512 U.S. at p. 462 [“‘Maybe I should talk to a lawyer’”]; People v. Sauceda-Contreras (2012) 55 Cal.4th 203, 219 [“‘If you can bring me a lawyer’”]; People v. Bacon (2010) 50 Cal.4th 1082, 1105 [“‘I think it’d probably be a good idea for me to get an attorney’”].

[15] People v. Cahill, 5 Cal.4th 478, 505 (1993).

[16] Of California’s 58 counties, 20 opted to implement their pension plans under CERL. Because the legislation at issue here applied only to CERL, the pensions of persons employed by counties that do not participate in CERL are not directly affected by the Court’s decision here. (Hereafter, “county” or “counties” will refer to those implementing pension plans under CERL.)

[17] The plaintiffs in the Contra Costa and Merced actions filed respondents’ briefs with the Supreme Court advancing similar positions to those asserted by the plaintiffs here.

[18] For additional background, please see Client Alert Vol. 33, No. 1, which provides extensive information on the First District’s January 2018 decision (Alameda Cnty. Deputy Sheriff’s Ass’n v. Alameda Cnty. Emps.’ Ret. Ass’n, 19 Cal. App. 5th 61 (1st Dist.2018)).

[19] In addition to the petition for review filed by the Association, the Supreme Court granted petitions for review filed by both the District and the State. The District had been joined as a defendant in the Contra Costa County action because its employees participate in a CERL pension plan. Although not initially a party, the State was permitted to intervene in all three of the consolidated actions to defend PEPRA.

[20] The interactive process required under the FEHA “is an informal process with the employee or the employee’s representative, to attempt to identify a reasonable accommodation that will enable the employee to perform the job effectively.” Wilson v. County of Orange, 169 Cal.App.4th 1185, 1195 (4th Dist. 2009).

[21] In Skelly v. State Personnel Board (1975) 15 Cal.3d 194, 215, the Supreme Court held a permanent civil service employee has due process rights to certain preremoval safeguards, including “notice of the proposed action, the reasons therefor[e], a copy of the charges and materials upon which the action is based, and the right to respond, either orally or in writing, to the authority initially imposing discipline.”

[22] 21 U.S.C. sections 841(a)(1), (b)(1)(C), and 846.

[23] Consolidated and Further Continuing Appropriations Act Of 2015, Pub. L. No. 113-235, section 538, 128 Stat. 2130, 2217 (2014).

[24] People v. Jackson, 210 Cal. App. 4th 525, 529 (4th Dist. 2012); see also Health & Safety Code section 11362.775.

[25] See People v. Orlosky, 233 Cal. App. 4th 257, 267-68 (4th Dist. 2015).

[26] In People v. London 228 Cal. App. 4th 544 (2014), a defendant grew marijuana for an informal collective, which would then distribute it among members and the original suppliers of the plants. The defendant there presented no evidence that any of those individuals were qualified patients. A police officer testified that the defendant had actually admitted to making a $20,000 profit from the plants, and the defendant offered no evidence the plants would be distributed on a non-profit basis. After considering state law, case law, and the Attorney General guidelines, that court concluded there was insufficient evidence to support an MMPA jury instruction.

[27] See 34 U.S.C. section 10156(d)(2)(A).

[28] See Id., section 10153.

[29] The Ninth Circuit noted: “[T]he State of California sought similar relief related to a condition that DOJ placed on FY 2017 awards under the Community Oriented Policing Services (“COPS”) grant program and the COPS Anti-Methamphetamine Program (“CAMP”). See generally 34 U.S.C. [section] 10381 et seq. Like the Certification Condition attached to Byrne awards, the challenged condition attached to the COPS/CAMP awards requires applicants to certify their compliance with 8 U.S.C. [section] 1373. California’s Department of Justice submitted this certification when it applied for a FY 2017 CAMP award, and although it received $1 million in CAMP funding that year, it was told it could not “draw down” the funds pending an inquiry into its compliance with [Section] 1373.

The dispositive issue on appeal related to COPS/CAMP is whether California’s state laws render California ineligible for COPS/CAMP funding based on asserted non-compliance with [Section] 1373. This issue is identical to the issue regarding the Certification Condition attached to the Byrne program. See infra Part IV. For the sake of simplicity, the issue is discussed in the text of this opinion in terms of the Byrne program’s Certification Condition, but that discussion and our resolution of that challenge applies similarly to the [Section] 1373 certification condition under COPS/CAMP.”

[30] See also Client Alert Vol. 34, No. 35 for more details regarding the Ninth Circuit’s decision in City of Los Angeles v. Barr.

[31] The Ninth Circuit here noted that other circuits had reached differing conclusions regarding DOJ’s authority under Section 10102(a)(6) and the Byrne statute to impose the Access and Notice Conditions, resulting in a circuit split. The Ninth Circuit stated, “To date, only the Second Circuit has held that the Access and Notice Conditions were imposed pursuant to appropriate authority. New York v. Dep’t of Justice, 951 F.3d 84, 101-04, 116-22 (2d Cir. 2020). The First, Third, and Seventh Circuits have held to the contrary. City of Chicago v. Barr, 957 F.3d 772, 961 F.3d 882 (7th Cir. 2020); City of Chicago v. Sessions, 888 F.3d 272, 283-87 (7th Cir. 2018), reh’g en banc granted in part, opinion vacated in part, No. 17-2991, 2018 U.S. App. LEXIS 21801, 2018 WL 4268817 (7th Cir. June 4, 2018), vacated, No. 17-2991, 2018 U.S. App. LEXIS 25694, 2018 WL 4268814 (7th Cir. Aug. 10, 2018); City of Philadelphia v. Att’y Gen., 916 F.3d 276, 284-88 (3d Cir. 2019); City of Providence v. Barr, 954 F.3d 23, 45 (1st Cir. 2020).”

[32] 921 F.3d 865 (9th Cir. 2019), cert. denied, 590 U.S. , 2020 U.S. LEXIS 3156 (U.S. Jun. 15, 2020) (No. 19-532).

[33] Id., at p. 891.

[34] City & Cty. of San Francisco v. Sessions, 349 F. Supp. 3d 924, 971 (N.D. Cal. 2018) (citing Trump, supra, at p. 1244), judgment entered sub nom. California ex rel. Becerra v. Sessions, 2018 U.S. Dist. LEXIS 199018 (N.D. Cal. Nov. 20, 2018).

[35] E. Bay Sanctuary Covenant v. Trump, 950 F.3d 1242, 1282-83 (9th Cir. 2020) (quoting E. Bay Sanctuary Covenant v. Trump, 354 F. Supp. 3d 1094, 1120-21 (N.D. Cal. 2018)).

[36] See, e.g., Treaty Between United States and Cherokee Nation of Indians, Art. IV, July 19, 1866, 14 Stat. 800 (“Creek reservation”); Act of Mar. 3, 1873, ch. 322, 17 Stat. 626; (multiple references to the “Creek reservation” and “Creek India[n] Reservation”); 11 Cong. Rec. 2351 (1881) (discussing “the dividing line between the Creek reservation and their ceded lands”); Act of Feb. 13, 1891, 26 Stat. 750 (describing a cession by referencing the “West boundary line of the Creek Reservation”).

[37] See Creek Allotment Agreement, ch. 676, 31 Stat. 862-864.

[38] See Mattz v. Arnett, 412 U. S. 481, 504, n. 22 (1973) (“[A]llotment under the . . . Act is completely consistent with continued reservation status”); Seymour v. Superintendent of Wash. State Penitentiary, 368 U. S. 351, 356-358 (1962) (holding that allotment act “did no more than open the way for non-Indian settlers to own land on the reservation”).

[39] The pager store’s owner identified the three men through a photo lineup as Vargas, Gonzalez, and Miller, and he identified Vargas at trial.

[40] Voter Information Guide, Gen. Elec. (Nov. 8, 2016) text of Prop. 57 section 2, p. 141.

[41] Cal. Code Regs., tit. 15, section 3496(b).