Courtesy of: James R. Touchstone, ESQ.


  1. Existence of probable cause does not preclude a plaintiff’s First Amendment retaliation claim where city council arrests outspoken critic.

Lozman v. City of Riviera Beach, 2018 U.S. LEXIS 3691 (U.S. June 18, 2018)

Facts: By the time he attempted to speak during the public comment portion of a public Riviera Beach City Council meeting in November 2006, Fane Lozman had already developed an adversarial history with city officials of Riviera Beach (“City”). He had spoken at prior public Council meetings as a vocal critic of City officials and the City’s development plans, and had filed a lawsuit alleging the City violated Florida’s open-meetings laws. Five months before Lozman’s arrest at the November 2006 Council meeting, the City Council held a closed-door session, in part to discuss Lozman’s open-meetings lawsuit.

During the public-comment session of the November Council meeting, Lozman began to speak at the podium about the arrests of officials from other jurisdictions. After he refused a councilmember’s request to stop making such remarks, the councilmember told an attending police officer to “carry him out.” Lozman was handcuffed and ushered out of the meeting. The City maintained that he was arrested for violating the City Council’s rules of procedure when he discussed issues unrelated to the City and then refused to leave the podium. Lozman claimed that his arrest was part of a plan to retaliate for his lawsuit and his prior public criticisms of City officials.

The State’s attorney determined that there was probable cause for his arrest, but decided to dismiss the charges. Lozman sued under 42 U.S.C. section 1983, contending the City arrested him as part of a premeditated plan to retaliate against him for the open-meetings lawsuit. After a jury verdict for the City, Lozman appealed. The Eleventh Circuit Court of Appeals affirmed, holding that because the jury must have determined that Lozman’s arrest was supported by probable cause, precedent required the defeat of his First Amendment retaliatory arrest claim. The Supreme Court of the United States granted certiorari on the issue of whether the existence of probable cause defeats a First Amendment retaliatory arrest claim under Section 1983.

Held: The Supreme Court of the United States held that the existence of probable cause did not bar a plaintiff’s First Amendment retaliatory-arrest claim under the circumstances.

The Court noted that Lozman conceded that there was probable cause for his arrest, but argued that, notwithstanding the presence of probable cause, his arrest at the City Council meeting violated the First Amendment because the arrest was ordered in retaliation for his earlier, protected speech i.e., his open-meetings lawsuit and his prior public criticisms of City officials. As an initial matter, the Court observed that Monell v. Dep’t of Soc. Servs.[1] held that, in a Section 1983 case, “a city or other local governmental entity cannot be subject to liability unless the harm was caused in the implementation of ‘official municipal policy.’” The Court assumed that Lozman’s arrest was taken pursuant to an official City policy for the sake of proceeding with the discussion of the issue at hand: whether the conceded existence of probable cause for the arrest barred recovery regardless of any intent or purpose to retaliate for past speech.

The Court next discussed two precedents that related to this issue. Lozman argued that the Supreme Court’s prior decision in Mt. Healthy City Bd. of Ed. v. Doyle[2] applied here. Mt. Healthy was a civil case in which a city board of education chose not to rehire an untenured teacher after a series of incidents, including a telephone call to a local radio station. The Court determined that the phone call was protected speech. However, the Court also determined the other incidents, without the phone call, would have justified the dismissal. Thus, if the board could show that the discharge would have been ordered even without reference to the protected speech, there was no city liability. In other words, Mt. Healthy held that there was no liability unless the alleged constitutional violation was a “but-for” cause of the board’s decision not to rehire, even if retaliation might have been a substantial motive for the board’s decision.

The City argued Mt. Healthy was not the sole precedent to consider; the Supreme Court’s decision in Hartman v. Moore[3] should also apply. Hartman held that a plaintiff alleging a retaliatory prosecution must show the absence of probable cause for the underlying criminal charge. In a retaliatory prosecution case, the applicable procedure was as follows: (1) If there was probable cause, the case should end; and (2) If the plaintiff proves the absence of probable cause, then the Mt. Healthy “but-for” test governs. The Court in Hartman focused on the existence of probable cause in discussing challenges in proving causation in retaliatory prosecution cases, noting that prosecutors have absolute immunity from retaliatory prosecution with respect to their decisions to prosecute. Instead, the plaintiff bringing a retaliatory prosecution suit must sue “some other government official and prove that the official “‘induced the prosecutor to bring charges that would not have been initiated without his urging.’” Requiring plaintiffs in retaliatory prosecution cases to prove the lack of probable cause would help “bridge the gap between the nonprosecuting government agent’s motive and the prosecutor’s action.” In the instant case, the City argued that the existence of probable cause was a bar to retaliatory prosecution, and argued for a similar bar in the retaliatory arrest case here.

The Supreme Court acknowledged that there was “undoubted force” in the City’s position in supporting such a bar, given the sheer number of arrests per day and the difficulty in discerning whether an arrest was caused by an officer’s legitimate or illegitimate consideration of speech. The Court specifically noted that the “the complexity of proving (or disproving) causation in these cases creates a risk that the courts will be flooded with dubious retaliatory arrest suits.” But the Court also stated that the causation problem in retaliatory arrest cases was not the same as the retaliatory prosecution problem identified in Hartman. Hartman relied, in part, on the fact that the causal connection between the defendant’s animus and the prosecutor’s decision to prosecute was “weakened by the ‘presumption of regularity accorded to prosecutorial decisionmaking,’ a presumption which did not apply in the retaliatory arrest context.” The Supreme Court also observed a risk that some police officers may exploit the arrest power afforded by such a potent probable cause threshold as a means of suppressing legitimate speech.

Ultimately, the Court determined that whether Mt. Healthy or Hartman governed here must be determined by a different case because Lozman’s claim was “far afield from the typical retaliatory arrest claim,” making the risk of a flood of retaliatory arrest lawsuits unlikely. Lozman alleged that the City itself, not the officer, retaliated against him pursuant to an “official municipal policy” of intimidation. The Court explained this would require him to prove the existence and enforcement of an official policy motivated by retaliation, which removed his claim from the typical retaliatory arrest claim. While probable cause considerations of an arresting police officer’s actions might be based on on-the spot decisions, an official retaliatory policy could be over an extended period.

Moreover, if the government itself planned and implemented retaliation, an individual might not find an avenue of redress. The Court also found that the problems that the City argued would result if Mt. Healthy were applied in retaliatory arrest cases were unfounded: “The causation problem in arrest cases is not of the same difficulty where, as is alleged here, the official policy is retaliation for prior, protected speech bearing little relation to the criminal offense for which the arrest is made. In determining whether there was probable cause to arrest Lozman for disrupting a public assembly, it is difficult to see why a city official could have legitimately considered that Lozman had, months earlier, criticized city officials or filed a lawsuit against the City.” The Court found no attending risk of a flood of retaliatory arrest suits against high-level policymakers. The Court added that the right to petition had been well-established by the Supreme Court as one of the “most precious of the liberties safeguarded by the Bill of Rights,”[4] and that Lozman was deprived of speech “high in the hierarchy of First Amendment values.”

For these reasons, the Court concluded that Lozman was not required to prove the absence of probable cause for his arrest to maintain his claim of retaliatory arrest against the City. The Court thus found that, on these facts, Mt. Healthy provided the correct standard for assessing a retaliatory arrest claim. The Court acknowledged that its holding was limited to the specific circumstances here, which were not “typical” of those in most retaliatory arrest claims, adding that it did not need to address the requirements of proving a retaliatory arrest claim “in other contexts.” Finally, the Court noted that it was not suggesting whether Lozman was ultimately entitled to any relief, offering potential considerations on remand. Accordingly, the Supreme Court vacated the Eleventh Circuit’s decision and remanded.

In his dissent, Justice Clarence Thomas maintained that the majority did not answer the question of whether the existence of probable cause defeats a First Amendment claim for retaliatory arrest under Section 1983, but instead decided that probable cause should not defeat a “unique class of retaliatory arrest claims.” He suggested the Court created a highly selective rule that accommodated the retaliatory arrest context here. This enabled the majority to separate the case from standard retaliatory arrest cases, thereby evading those cases’ accompanying risks pertaining to probable cause standards that would otherwise apply. Justice Thomas maintained that plaintiffs like Lozman who brought First Amendment retaliatory arrest claims should have to prove an absence of probable cause.

For a more detailed discussion of this case, please see Client Alert Vol. 33, No. 16, available at www.jones-mayer.com.

  1. Peace officers must generally obtain a warrant supported by probable cause before obtaining historical cell-site location information.

Carpenter v. United States, 2018 U.S. LEXIS 3844 (U.S. June 22, 2018)

Facts: In the course of executing its various functions, a cell phone continually searches for the best signal and typically connects to the nearest site of radio antennas on towers or other locations, called cell sites. With every connection, a time-stamped record is created. The record generated is called “cell-site location information” or CSLI. This information is used and stored by wireless carriers for business purposes. Location precision deriving from CSLI information depends on the size of the geographic area covered by the cell site. As the number of cell sites has increased to handle increasing data demands, coverage areas have shrunk. Consequently, cell phones today give rise to large amounts of increasingly precise CSLI.

In 2011, police arrested several men suspected in a series of robberies in Detroit. One of the suspects identified over a dozen accomplices involved in nine robberies in Ohio and Michigan over a four-month period. In addition, the suspect provided cell phone and other information that eventually led prosecutors to identify plaintiff Timothy Carpenter as a suspect. Prosecutors obtained court orders under the Stored Communications Act[5] (“SCA”) to access Carpenter’s cell phone records. The SCA enables the Government to compel the disclosure of certain telecommunications records when it “offers specific and articulable facts showing that there are reasonable grounds to believe” that the records sought “are relevant and material to an ongoing criminal investigation.” 18 U.S.C. section 2703(d). Wireless carriers produced Carpenter’s CSLI information over a four-month period, which included 12,898 location points specifying Carpenter’s movements for an average of 101 data points per day.

Carpenter was charged with several counts of robbery and firearms violations. Before trial, Carpenter moved to suppress the CSLI data. He argued that the Government seized CSLI records without securing a warrant supported by probable cause, thereby violating his Fourth Amendment rights. The District Court denied the motion. Prosecutors used the records at trial to show that Carpenter’s phone was near some of the robbery locations when those robberies occurred. Carpenter ultimately was convicted.

The Sixth Circuit Court of Appeals affirmed the conviction, holding that Carpenter lacked a reasonable expectation of privacy in the location information collected by the FBI because he had voluntarily shared that information with his wireless carriers. The Court of Appeals determined that Carpenter effectively volunteered this information in that he chose to use a cell phone and had accepted that cell phones operate by providing cell-site data to the carriers’ sites. Carpenter sought review from the United States Supreme Court.

The Supreme Court granted certiorari to determine “whether the Government conducts a search under the Fourth Amendment when it accesses historical cell phone records that provide a comprehensive chronicle of the user’s past movements.”

Held: In a highly contested 5-4 decision, the Supreme Court held that the Government’s acquisition of a plaintiff’s cell phone cell-site location information from his wireless carriers constituted a Fourth Amendment search that required a warrant supported by probable cause.

The Supreme Court began by noting that the Fourth Amendment’s protections against unreasonable searches and seizures by police and other Government officials were historically connected to common-law trespass – officials were generally proscribed from physically intruding on an individual’s constitutionally protected property in search of evidence of criminal activity. In Katz v. United States,[6] the Supreme Court extended Fourth Amendment protections beyond property interests to protect certain expectations of privacy. Katz established that when a person “seeks to preserve something as private,” and his expectation of privacy is “one that society is prepared to recognize as reasonable,” official intrusion into that area generally qualifies as a search and requires a warrant supported by probable cause.[7]

The Court observed that the process of determining which expectations of privacy were entitled to protection was influenced by what the Constitution’s creators would have considered an unreasonable search and seizure at the time of the Fourth Amendment’s adoption. The Court explained that key considerations in this determinative process were guarding “the privacies of life” against “arbitrary power,”[8] and putting “obstacles in the way of a too permeating police surveillance.”[9] Such considerations continue, the Court explained, as innovations in surveillance tools progress.[10] For example, in Riley v. California,[11] the Court noted the “immense storage capacity” of cell phones in holding that police officers must generally obtain a warrant before searching the contents of a phone.

The Court explained that the issue of personal location information maintained by a third party had not yet been specifically addressed by precedent, yet two lines of cases informed the privacy interests at stake. The first set involved a person’s privacy expectation in his physical location and movements. In United States v. Jones,[12] five Justices said that conducting GPS tracking of a cell phone would raise privacy concerns. They noted that “every movement” a person made would be tracked, and that such monitoring used over a longer period than the 28 days in Jones during criminal investigations would generally “impinge[] on expectations of privacy” even if those movements were disclosed to the public at large.

The Supreme Court next discussed the second line of cases which involved a person’s expectation of privacy in information voluntarily turned over to third parties. The Court explained that Government officials are generally free to obtain such information from recipient third parties without triggering Fourth Amendment protections. This is known as the “third-party doctrine.” In United States v. Miller,[13] bank deposit slips, canceled checks, and monthly statements that the Government sought in a tax evasion investigation were considered by the Court to be “business records.” These were not confidential communications but of use in the “ordinary course of [banking] business,” and thus could not have been expected by the defendant to be kept private. The defendant also could not claim ownership or possession of these documents since they were “business records.” And in Smith v. Maryland,[14] the Supreme Court held that there was no expectation of privacy in records of dialed telephone numbers conveyed to the phone company; using a phone to place a call meant the caller assumed the risk that those numbers would be revealed to the police.

The Court here observed that CSLI tracking was very similar to GPS tracking in that information thus collected was comprehensive, detailed, and effortlessly compiled. On the other hand, “the fact that the individual continuously reveals his location to his wireless carrier implicates the third-party principle of Smith and Miller.”

The Court rejected the Government’s contention that CSLI records were “business records,” noting a “world of difference between the limited types of personal information addressed in Smith and Miller and the exhaustive chronicle of location information casually collected by wireless carriers.” The Court noted that cell phones were ubiquitous, are typically kept on or very near to a person’s body or clothing, often taken everywhere they go, and provide large amounts of information. An individual’s privacy expectations with such information, imbued with the “privacies of life,” would be of a completely different level than the privacy expectations with the documents in Miller or the phone numbers in Smith. The Court also determined that such information was not truly volunteered with third party carriers because cell phone use was such an indispensable part of modern life and “log CSLI without any affirmative act by the user.” Should the third-party doctrine apply, the Government would have “near perfect surveillance” of a person and allow it to go back in time to retrace their whereabouts. Further, with advances in location precision ever-increasing, the Court noted that it had held previously that it “must take account of more sophisticated systems that are already in use or in development.”[15]

The Supreme Court declined to extend Miller and Smith to CSLI collection, and concluded that that because of the unique nature of cell phone location information, the third-party doctrine did not apply. The Court determined that the Government’s acquisition of Carpenter’s CSLI was a Fourth Amendment search. The Court correspondingly held that the Government must generally obtain a warrant supported by probable cause before acquiring CSLI records.

This Court explained that its decision was narrow. The Court said it did not disturb the application of Smith and Miller or call into question conventional surveillance techniques and tools, such as security cameras. Obtaining such information in real-time was not addressed, according to the Court. Nor did its opinion address other business records that might incidentally reveal location information, nor impact other collection techniques involving foreign affairs or national security.

Here, because the Government did not obtain a search warrant supported by probable cause for the historical CSLI, the Court found that Carpenter’s reasonable expectation of privacy in the sum of his physical movements was violated when the Government acquired his CSLI data from the carriers. Accordingly, the Supreme Court reversed the Sixth Circuit’s judgment, and remanded.


Each of the four opposing Justices offered dissents. Justice Kennedy, joined by Justices Alito and Thomas, said the majority came up with an unworkable line and improperly removed CSLI from other types of information; property rights as the basis for reasonable expectations of privacy was the correct anchor in such cases and the third-party doctrine should apply here. Justice Alito, joined by Justice Thomas, said that the SCA should have sufficed to obtain CSLI records, not the Fourth Amendment. Not doing so created a “crazy quilt” of the Fourth Amendment. Justice Thomas wrote that the reasonable expectation of privacy concept should be reconsidered entirely. Justice Gorsuch, writing alone, wanted to eliminate both the third-party doctrine and the reasonable expectation of privacy as standards in favor of a concentration on whether an individual maintains a property interest, focusing on the determination of ownership of that property, as challenging as that determination might be.

For a more detailed discussion of this case, please see Client Alert Vol. 33, No. 17, available at www.jones-mayer.com.

  1. Campus law enforcement officers entitled to qualified immunity protection where they moved protestors using reasonable force in pursuit of legitimate government interests.

Felarca v. Birgeneau, 891 F.3d 809 (9th Cir. 2018)

Facts: Thousands of protestors gathered at the University of California, Berkeley for a rally in November 2011. University officials, forewarned of the protestors’ plan to build an encampment, sought to enforce the campus no-camping policy out of concern for the health and safety risks that might ensue from a long-term encampment. Two days before the rally, the university emailed students warning that the university would enforce the no-camping policy. Protestors nevertheless set up tents on the day of the rally. After the demonstrators did not heed campus police officer warnings to take down the tents, officers used their hands and jabbed with their batons to move the crowd to gain access to the tents to remove them themselves. Some students shouted and pushed back during the afternoon. One protestor went to the hospital. A similar sequence repeated in the evening, with at least one additional protestor ending up at the hospital.

Following these events, some protestors sued university administrators and police officers, alleging the officers used excessive force against them as they sought to remove the tents. The defendants moved for summary judgment on the basis of qualified immunity. The district court denied summary judgment motions by University of California Police Department (“UCPD”) officers as to direct excessive force claims, and by university administrators and UCPD officers as to supervisory excessive force claims. Defendants appealed.

Held: The Ninth Circuit Court of Appeals determined that the district court erred in denying defendants’ summary judgment motions. Addressing qualified immunity, the Court observed that two questions must be addressed: “(1) whether the facts, taken in the light most favorable to the non-moving party, show that the officials’ conduct violated a constitutional right, and (2) whether the law at the time of the challenged conduct clearly established that the conduct was unlawful.”[16] In the context of an excessive force claim, the Court continued, the first prong translates to whether the use of force was “objectively unreasonable under the circumstances.” Reasonableness was assessed by balancing “the nature and quality of the intrusion on the individual’s Fourth Amendment interests against the countervailing governmental interests at stake.”[17] Under the second prong, courts must consider whether the law was clearly established at the time of the challenged conduct. The Court observed that meeting this standard meant that the law must have been clear enough that “every reasonable official”[18] would know he or she was violating the plaintiff’s rights.

The Court first addressed the direct excessive force claims against two UCPD officers. Noting that no plaintiff here claimed that either officer’s hand or baton use caused injury to a plaintiff to a degree that required medical treatment, the Court determined that even if intrusive force had been applied, it was minimal. The Court also stated that the government had a legitimate interest in using minimal force in maintaining order and enforcing university policy. Thus, the Court concluded that the balance of factors weighed in favor of the UCPD officers on the direct force claims.

In their supervisory force claims against university administrators and three UCPD officers, plaintiffs contended that the supervisory defendants planned the police response and failed to stop assaults by the police. The Ninth Circuit explained that “an official may be liable as a supervisor only if either (1) he or she was personally involved in the constitutional deprivation, or (2) a sufficient causal connection exists ‘between the supervisor’s wrongful conduct and the constitutional violation.’ Starr v. Baca, 652 F.3d 1202, 1207 (9th Cir. 2011). ‘The requisite causal connection can be established by setting in motion a series of acts by others, or by knowingly refusing to terminate a series of acts by others, which the supervisor knew or reasonably should have known would cause others to inflict a constitutional injury.’ Id. at 1207-08, quoting Redman v. County of San Diego, 942 F.2d 1435, 1447 (9th Cir. 1991), and Dubner v. City and County of San Francisco, 266 F.3d 959, 968 (9th Cir. 2001) (internal alterations, citations, and quotation marks omitted).” The Ninth Circuit added that there was no respondeat superior liability under Section 1983, and that officers could not be held liable merely for being present at the scene of a constitutional violation or for being a member of the same operational unit as a wrongdoer.

Here, the Court determined that the district court erred in denying summary judgment to university officials who were not in the police chain of command because they had no supervisory authority over the police who allegedly committed the violations and could not be liable for persons beyond their control. The district court also erred in denying summary judgment to some officials who were in the police chain of command because those officials did not have sufficient personal involvement in the alleged acts of force to be liable.

Regarding supervisory force claims against named UCPD officers, the Court noted that some of the claims failed to identify the officers directly using excessive force. Plaintiffs thus failed to show that these unnamed officers were in the UCPD officer defendants’ chain of command or that the named UCPD officer defendants ordered or failed to stop any exercise of excessive force by these unnamed officers.

For those claims which identified specific subordinates to the UCPD defendants accused of supervisory force, standard qualified immunity analysis applied. The Court found that, even assuming that subordinate officers did use excessive force,[19] plaintiffs could not cite any applicable precedent that showed the law was clearly established[20] at the time that the subordinate officers’ baton strikes violated their constitutional rights. Because plaintiffs had not shown a violation of a clearly established right by subordinate officers, UCPD supervisor officer defendants could not have violated a clearly established right in supervising said subordinates.

The Ninth Circuit thus concluded that the district court erred in denying qualified immunity to the defendants. Accordingly, the Court reversed and remanded for the district court to grant summary judgment in favor of all defendants.

  1. Pat search warranted based on ‘bulges’ in defendant’s pocket that officer believed could have been weapons.

People v. Sacrite, 24 Cal. App. 5th 77 (6th Dist. 2018)

Facts: In April 2014, San Jose Police Officer John Prim and a partner were on duty in an unmarked police car while conducting “clandestine operations” in an area where they had made prior arrests. Officer Prim saw defendant Irvin Sacrite riding his bike in the wrong direction while drinking from an open beer can, violating state vehicle and municipal codes. The officer detained Sacrite, verified the can contained beer, and noticed that Sacrite demonstrated signs of being under the influence of a controlled substance. Sacrite was excessively sweating, had chapped lips, and his eyelids were “fluttering.” The officer intended to cite Sacrite for the code violations, and to stand closer to Sacrite in order to further consider if Sacrite was under the influence of a stimulant. Sacrite was substantially taller and heavier than either Prim or his partner, so Officer Prim felt he could not safely stand closer without first ensuring Sacrite had no weapons in reach. The officer could not see Sacrite’s waistband area and shorts pockets because of Sacrite’s long T-shirt. However, the officer could see “bulges” inside defendant’s shorts pockets, indicating “something solid” with round edges which may have been a cell phone. From just his observations, the officer was not sure he could exclude the possibility of a weapon. Officer Prim planned to administer some tests to more definitively determine whether Sacrite was under the influence of a stimulant, but he would not be able to see Sacrite’s hands when administering the planned tests. Based on these considerations, the officer decided to do a quick patsearch to be certain the bulge in Sacrite’s pockets was not a weapon.

Officer Prim conducted a patsearch, which suggested to him that the bulges were “a possible cell phone and a possible lighter.” The officer did not remove any of the pocket contents at that time. The officer next conducted a Romberg test, observed additional signs that Sacrite was under the influence, and arrested him. The officer then searched Sacrite’s bulging right front pocket and found a cell phone, a lighter, and methamphetamine in a plastic baggie.

At trial, Sacrite moved to suppress the drug evidence, arguing the patsearch was unjustified. The trial court denied his motion, and Sacrite pleaded no contest to possession of methamphetamine and using or being under the influence of a controlled substance. The trial court placed him on probation for two years with a 30-day jail term.

Held: The California Sixth District Court of Appeal held that the patsearch was justified because the officer’s actions in response to observing the bulge in defendant’s pockets that officer believed could have been a weapon within reach were warranted. The Court also held that the officer’s patsearch was not impermissible in its scope because the officer did not remove the defendant’s pocket items immediately after performing the patsearch.

The Court first explained that in Terry v. Ohio,[21] the United States Supreme Court held that “the Constitution permits ‘a reasonable search for weapons for the protection of the police officer, where he [or she] has reason to believe that he [or she] is dealing with an armed and dangerous individual.’ (Id. at p. 27.) Before conducting a patsearch, ‘[t]he officer need not be absolutely certain that the individual is armed.’ (Ibid.) A patsearch may be conducted where an officer’s observations lead the officer ‘reasonably to conclude in light of his [or her] experience that … the persons with whom he [or she] is dealing may be armed and presently dangerous.’ (Id. at p. 30.) ‘[T]he police officer must be able to point to specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant …’ the search.”

The Court described the sequence of events that the record revealed. Before conducting a patsearch, Officer Prim noticed “solid” bulges in Sacrite’s pocket, suggesting that defendant was armed. The officer conducted a patsearch because he thought that the bulge might be a weapon and he would not be able to see Sacrite’s hands while investigating whether Sacrite was under the influence of a stimulant. The officer’s testimony highlighted specific and articulable facts which, taken together with rational inferences from those facts, reasonably warranted the brief patsearch for weapons before conducting the deeper investigation that required him to be in close proximity to Sacrite. The Court noted that other cases also upheld patsearches where an officer saw a bulge in the defendant’s clothing and suspected the bulge might be a weapon.[22]

The Court next addressed Sacrite’s claim that, even if the patsearch was justified, Officer Prim “acted unlawfully” when he removed the cell phone, lighter, and baggie of methamphetamine from defendant’s pocket. In People v. Collins,[23] the court had concluded that a patsearch became “impermissible in its scope” when the officer there noticed a “little lump” and then reached into the defendant’s pocket, without any evidence from the officer that the object felt like a weapon.

Here, the Sixth District concluded that the evidence did not show that the officer reached into defendant’s pocket immediately following the patsearch. Rather, the officer conducted the patsearch, performed an additional test to determine whether defendant was under the influence, arrested defendant, and then removed the items during a lawful search incident to arrest. As the items were not removed from defendant’s pocket immediately after the patsearch, the patsearch was not impermissible in its scope; Officer Prim’s removal of the items was lawful.

Having resolved both issues, the Court affirmed.

A dissenting judge maintained that Officer Prim never identified any specific, articulable fact that justified a reasonable suspicion that Sacrite was armed, and would have reversed. The judge argued that the officer did not present anything more than “a mere possibility” that Sacrite was armed before patting him down. Therefore, the patsearch was unjustified.

  1. Summary judgment in favor of officers improper as based on reasonableness inquiry where deadly force used and where factual question existed as to whether man attempting “suicide by cop” presented threat warranting such force. Affirmed on qualified immunity grounds.

Vos v. City of Newport Beach, 2018 U.S. App. LEXIS 15633 (9th Cir. June 11, 2018)

Facts: In May 2014, City of Newport Beach Police Department officers responded to a night call about a man wielding scissors and behaving erratically at a convenience store. Gerritt Vos had entered the store, become upset, cursed at other people, and run around the store shouting for someone to kill him. The first officer to arrive had the store cleared out and broadcasted on police radio that Vos simulated having a gun and encouraged the officer to kill him. The officer requested backup and requested less than lethal force weaponry. Eventually, at least eight officers arrived, positioning themselves outside as of the front of the store. One officer had a less-lethal weapon, while the others had lethal weapons at the ready. A canine unit was also present. Officers had heard Vos shout “shoot me” and other exclamations. They also knew Vos had simulated having a gun, was agitated, and was possibly mentally unstable or under the influence of narcotics. The officers discussed, among other things, using non-lethal force.

As they were deciding on how to handle the situation, Vos surprised them by rushing from about 30 feet away towards the open front door of the store, holding what officers mistakenly believed to be scissors over his head. An officer ordered Vos twice to drop the weapon, but Vos kept charging. Officers shot and killed him. Roughly twenty minutes had passed since the first officer had arrived on the scene. Officers found that Vos had held a store display hook in his hands. They later learned he was on narcotics at the time and was a diagnosed schizophrenic. Vos’ parents filed a 42 U.S.C. section 1983 suit for, among other claims, excessive force against the city and individual officers, but the district court granted summary judgment in favor of the defendants on these and all other plaintiff claims. Vos’ parents appealed.

Held: The Ninth Circuit Court of Appeals held that the facts showed a reasonable jury could conclude that the level of force used was not reasonable. Yet the Court also held that the individual officer defendants were entitled to qualified immunity on the Section 1983 claims.

The panel explained that a determination of whether a use of force was objectively reasonable requires balancing the “‘nature and quality of the intrusion on the individual’s Fourth Amendment interests against the countervailing governmental interests at stake.’ Graham v. Connor, 490 U.S. 386, 396, 109 S. Ct. 1865, 104 L. Ed. 2d 443 (1989) (quotations and citations omitted).” Because the “use of deadly force implicates the highest level of Fourth Amendment interests,”[24] the Court focused on whether the governmental interests outweighed the use of deadly force’s “unmatched”[25] intrusion.

The Court observed that police were not responding to a report of a crime and Vos was unlikely to succeed in fleeing the scene under the circumstances. Most important to the Court, however, was whether Vos presented an immediate threat to the officers or others. At least eight officers had responded and had surrounded the store’s front door. They were positioned behind their vehicles, and did not believe Vos had a gun. They had a less-lethal option available to stop Vos. Vos’ mentally instability also may have created an issue as to whether this should have diminished the government’s interest in using deadly force. Based on this reasons, the Court determined a reasonable jury could conclude that Vos did not pose an immediate threat such that the use of deadly force was warranted.

In so reasoning, the Court distinguished the present case from Lal v. California,[26] in which the panel had held the use of force reasonable when officers shot and killed a seemingly unbalanced and suicidal man who advanced threatening to use a large rock in his hands. The panel explained that the Lal police officers had no less-lethal means of countering the man’s threat. Nor was there a canine unit present. Lal had already endangered others by going fleeing officers in a high-speed chase, unlike Vos who had not presented much danger to himself or others. And Lal could have credibly fled the area and risked harm to others, unlike the enclosed Vos. For these reasons, the Court found Lal inapplicable to the situation Vos presented to the officers here.

The panel nevertheless held that the individual defendant officers were entitled to qualified immunity on the Section 1983 claims because the panel determined that existing precedent did not clearly establish, “beyond debate,”[27] that the officers’ acted unreasonably under the circumstances. The Court also observed that other aspects of Lal supported the idea that, although not using less intrusive means of challenging Vos was perhaps unwise, “‘precedents do not place the conclusion that he acted unreasonably in these circumstances beyond debate.’”[28]

The Court accordingly affirmed on the district court’s summary adjudication of the parents’ Fourth Amendment excessive force claim insofar as the individual officers were entitled to qualified immunity, though it reversed on all other aspects and remanded. A dissenting judge believed the officers reasonably responded to the threat Vos presented, and would have affirmed the decision of the district court.

For a more detailed discussion of this case, please see Client Alert Vol. 33, No. 19, available at www.jones-mayer.com.

  1. Officer who conducts nonconsensual dog search of public employee’s office is not entitled to qualified immunity where officer violates clearly established right.

Pike v. Hester, 891 F.3d 1131 (9th Cir. 2018)

Facts: In 2011, Elko County Sheriff’s Office Sergeant Brad Hester performed an after-hours dog search of Richard Pike’s locked office. Pike was also a public employee of Elko County, and had an unfriendly personal history with Hester. A state court granted Pike’s petition for an order of protection against Hester. Pike later sued Hester in federal district court, arguing that the search violated his Fourth Amendment rights. In district court, Pike said the state court had already decided some issues and moved to preclude these from relitigation. The district court granted the motion in part. Pike later moved for offensive summary judgment on his Fourth Amendment claim. The district court granted the motion, concluding that Hester’s search violated the Fourth Amendment and that, because Pike’s right to be free from such a search was clearly established, Hester was not entitled to qualified immunity. Hester appealed.

Held: The officer was not entitled to qualified immunity because it was clearly established at the time that a dog search of a public employee’s private office without consent violated the Fourth Amendment. In reaching its conclusion, the Ninth Circuit Court of Appeals first held that the state justice court’s finding that Hester violated the Fourth Amendment was precluded from relitigation.

The Court of Appeals explained that issue preclusion, or collateral estoppel, precludes relitigation of an issue already litigated and determined in a previous proceeding between the same parties.[29] A federal court applying issue preclusion “must give state court judgments the preclusive effect that those judgments would enjoy under the law of the state in which the judgment was rendered.”[30] Here, the Court determined that Nevada issue preclusion law must be applied. The Court then determined that Nevada’s issue preclusion conditions were met: (1) the alleged Fourth Amendment violation here was also at issue in the state justice court proceeding; (2) Hester was a party in the state proceeding; (3) the state justice’s order extending the protective order was final for issue preclusion purposes; and (4) the state justices actually and necessarily litigated the Fourth Amendment issue and found that the search was not lawful. Because issue preclusion applied, the Ninth Circuit accepted the state justice court’s finding that Hester violated the Fourth Amendment.

Having established that Hester violated Pike’s constitutional rights, the Court of Appeals then considered the next step in qualified immunity analysis: whether Hester’s actions violated clearly established law. The Court observed that in O’Connor v. Ortega,[31] the Supreme Court held that “[s]earches . . . by government employers or supervisors of the private property of their employees . . . are subject to the restraints of the Fourth Amendment.” And the Ninth Circuit noted that it had previously held in United States v. Ziegler[32] that officers’ search of a private office violated the Fourth Amendment, absent consent. Therefore, the Court concluded that it was clearly established by 2011 that a dog search of a public employee’s private office violated the Fourth Amendment, absent consent. Therefore, Hester was not entitled to qualified immunity. The Ninth Circuit Court of Appeals affirmed, and remanded to the district court for a trial or other determination of damages on Pike’s Fourth Amendment claim against Hester, and for other matters.

In his dissent, Justice O’Scannlain said he would reverse and remand because issue preclusion did not apply, issue preclusion was not raised properly on appeal anyway, and that the issue of whether Hester had permission to search was critical and so worthy of exploration.

  1. Pro se plaintiff alleging facts supporting Fourth Amendment claim, even where said plaintiff instead pursues First Amendment grounds on appeal, should nonetheless have had the lower court analyze the Fourth Amendment claims.

Sause v. Bauer, 2018 U.S. LEXIS 4037 (U.S. June 28, 2018)

Facts: Plaintiff Mary Ann Sause, proceeding pro se, filed a 42 U.S.C. 1983 suit against Louisburg, Kansas police officers, among others. She alleged that two officers came to her apartment about a noise complaint, were admitted inside her apartment, and behaved strangely and abusively before citing her for disorderly conduct and interfering with law enforcement. Among other things, Sause alleged that an officer ordered her to stop after she had knelt and began to pray. She claimed First Amendment violation of her right to free exercise of religion and that her Fourth Amendment right to be free from unreasonable search and seizure was also violated. The District Court granted defendants’ motion to dismiss for plaintiff’s failure to state a claim. On appeal, Sause raised only First Amendment claim against the two officers who entered her home. The Tenth Circuit Court of Appeals nevertheless affirmed. She petitioned to the United States Supreme Court.

Held: The Supreme Court said that while it was clear the First Amendment protects the right to pray, it was also true that a police officer could lawfully prevent someone from praying at a particular time and place in some situations. For example, a suspect did not have a right to delay an arrest “by insisting on first engaging in conduct that, at another time, would be protected by the First Amendment.” Yet “First and Fourth Amendment issues may be inextricable” when an officer orders someone to stop praying during the course of an officer’s investigation where the officer’s investigative conduct itself might give rise to Fourth Amendment questions.

The Court noted that the District Court should have interpreted the pro se complaint liberally, which would have presented that court with Fourth Amendment claims that could not properly be dismissed for failure to state a claim. The Court found the facts that would have given rise to consideration of both Amendments were unclear: the grounds on which the officers were at the apartment, the nature of any legitimate law enforcement interests that would have justified an order to cease praying, whether Sause had consented to the officers’ presence in her home, or what officers wanted her to do at the time when she was allegedly told to stop praying; none of these were established in Sause’s pro se complaint. The Court found that “[w]ithout considering these matters, neither the free exercise issue nor the officers’ entitlement to qualified immunity can be resolved.” Sause’s decision to abandon her Fourth Amendment claim on appeal did not eliminate the need to resolve these matters. The Court therefore granted Sause’s petition, reversed the Tenth Circuit’s judgment, and remanded for further proceedings.


  1. California Court of Appeal finds that Government Code section 7522.72 is constitutional.

Hipsher v. Los Angeles County Employees Retirement Assn., 2018 Cal. App. LEXIS 561 (2nd Dist. June 19, 2018)

Facts: Tod Hipsher was employed by the Los Angeles Fire Department as a firefighter in 1983. In 2001, Hipsher began an illegal gambling operation in both the Orange and Los Angeles Counties, in which he “routed customer wages and profits through a company based in Costa Rica” and profited by collecting amounts due under the terms of the wager. In 2011, Hipsher unknowingly drafted undercover agents of the Department of Homeland Security (DHS) and the Orange County District Attorney’s Office to collect past due and/or unpaid gambling debts. These agents used recording devices and Hipsher showed them the room in the fire station where he ran part of his operation.

In 2013, the United States Attorney filed a one-count information alleging Hipsher conducted and owned an illegal gambling business. Two months after the filing of the information, Hipsher retired from the fire department and was later convicted of the charged offense pursuant to his guilty plea. The Los Angeles County Employees Retirement Association (LACERA) notified Hipsher that his retirement benefits were going to be adjusted pursuant to that California Gov. Code section 7522.72 due to a finding based on DHS investigation reports that Hipsher’s conviction was job-related.

Thereafter, Hipsher filed a petition for writ of mandate and complaint for declaratory relief. He alleged the reduction of his retirement benefits was an unconstitutional ex post facto application of Section 7522.72, a violation of the contract clause of the California Constitution, and was not valid as there was not a connection between his crime and his performance of his official duties. The fundamental issues at trial were whether Hipsher had a due process right to his original retirement benefits and, if so, whether he was given sufficient due process protections prior to their reduction.

The trial court found for LACERA on the claims of contract clause and ex post facto violations, but found for Hipsher on the issue of due process. As such, the trial court issued a peremptory writ of mandate directing LACERA to set aside the reduction of Hipsher’s retirement benefits and return to him the difference between his full pension and that which he received after the reduction. The trial court further ordered the County to reinitiate proceedings under Section 7522.72 to provide Hipsher adequate due process protections. Both Hipsher and the County appealed.

Held: The California Second District Court of Appeal held that California Government Code Section 7522.72 was constitutional as applied to the present case, where Hipsher’s vested retirement benefits were reduced due to his gambling conduct which was committed in the scope of his duties. The Court further held that LACERA bears the burden of providing Hipsher with the necessary due process protections when determining whether his conviction falls within the scope of the statute.

The Court of Appeal of California first dealt with Hipsher’s claim that Section 7522.72 was unconstitutional because his vested contractual right to his pension was not subject to reduction, regardless of whether he was convicted of a job-related crime. The Court applied a two-step analysis of contract-clause claims. First, the Court evaluated the nature and extent of any contractual obligation. Second, if the rights were vested, the Court analyzed the “scope of the Legislature’s power to modify” that contractual right. Valdes v. Cory, (1983) 139 Cal. App. 3d 785. In this case, it was undisputed that Hipsher had a vested contractual right to retirement benefits. However, the Court noted, Section 7522.72 was meant to ensure the integrity of public pension systems.

The Court observed that an employee’s vested rights to retirement benefits can be diminished if there is an occurrence of a condition subsequent. Kern v. City of Long Beach, (1947) 29 Cal. 2d 853. The Court of Appeal concluded that Hipsher’s felony criminal conviction stemming from his public service constituted a condition subsequent, thereby allowing a limited forfeiture of vested retirement benefits under Section 7522.72.

Next, Hipsher alleged his benefit forfeiture was barred by Kern and Wallace, in which pension benefits were terminated altogether. Id. at 850. Wallace v. City of Fresno, (1954) 42 Cal. 2d 181. Here, the Court distinguished those cases, finding that LACERA preserved those benefits attributable to service prior to the first commission of Hipsher’s offense, rather than completely eliminating the retirement benefits. Additionally, Section 7522.72 forfeits benefits accrued from the earliest date of the commission of a qualifying offense. The Court of Appeal, therefore, held that application of the forfeiture procedures in Section 7522.72 was not unconstitutional.

The County believed the trial court erred in ordering the County to reinitiate proceedings under Section 7522.72 because the County was not named as a respondent. The County argued that any due process protections were to be provided by LACERA. The Court of Appeal agreed. The Court observed that the California Constitution provides that “the retirement board of each public pension holds the ‘sole and exclusive responsibility’ to administer the system.” Cal. Const. art. XVI, section 17. As such, the Court stated that the Board of Retirement for LACERA was responsible for ensuring eligibility and payment of pension benefits to appropriate employees and LACERA must grant Hipsher due process protections in compliance with its administrative procedures. Specifically, the Court stated, “[a]t a minimum, Hipsher was entitled to written notice reasonably calculated to apprise him of the pendency of the Section 7522.72 action, and the right to present his objections before an impartial decision maker,” The Court added that “the fact that providing constitutional due process is burdensome does not excuse the failure to provide it.”

Accordingly, the Court of Appeal affirmed the lower court’s holding that Section 7522.72 was constitutionally sound and applicable in the case at hand. The Court of Appeal modified the judgment to hold that LACERA bore the burden of providing Hipsher with suitable due process protections. In compliance with LACERA’s administrative procedures, Hipsher must be given notice of LACERA’s intent to initiate forfeiture of portions of his retirement benefits and the opportunity to present his objections.

For a more detailed discussion of this case, please see Client Alert Vol. 33, No. 18, available at www.jones-mayer.com.

  1. Government Claims Act immunity protects retirement board from appellants’ breach of fiduciary duty and conversion causes of action, despite the fact that the breach of fiduciary cause of action was based on duties described in the California Constitution.

Krolikowski v. San Diego City Employees’ Retirement System, 2018 Cal. App. LEXIS 545 (4th Dist. May 23, 2018)

Facts: Appellants Vincent Krolikowski and Connie Van Putten (together, “appellants”) were retired former employees of the City of San Diego (“City”), and members of the San Diego City Employees’ Retirement System (SDCERS). As the administrator of the City’s pension plan, SDCERS distributed monthly pension payments to each appellant beginning after their respective retirements. Van Putten retired in December 2000. Krolikowski retired in 2006. After conducting an audit of appellants’ pension benefits in 2013, SDCERS found it had wrongly calculated their monthly pension payments. SDCERS notified appellants that their respective pension payments would reflect the correction and result in lower monthly payments going forward. SDCERS also informed appellants that they must repay the past overpayments.

Each appellant challenged SDCERS efforts to recoup the overpayments via administrative appeal, but neither effort succeeded. Each appellant filed suit against SDCERS again challenging SDCERS’ recoupment with causes of action for (1) declaratory relief; (2) writ of mandate (3) breach of fiduciary duty, based on both common law and “constitutional” grounds (); and (4) conversion. Their individual suits were eventually consolidated. The trial court overruled SDCERS’ demurrer to the declaratory relief and writ of mandate causes of action, but sustained the demurrer as to the breach of fiduciary duty and conversion actions. The trial court entered judgment in favor of SDCERS, and appellants’ appeal followed.

Held: The public employees retirement system board was immune under the Government Claims Act[33] from tort liability for its employees’ discretionary acts. In reaching its conclusion, the California Fourth District Court of Appeal began by addressing the trial court’s action in sustaining the demurrer to the breach of fiduciary duty and conversion actions. The Court noted that Gov. Code section 815.2(b) states that “a public entity is not liable for an injury resulting from an act or omission of an employee of the public entity where the employee is immune from liability.” Regarding employee immunity, Gov. Code section 820.2 provides that “a public employee is not liable for an injury resulting from his act or omission where the act or omission was the result of the exercise of the discretion vested in him, whether or not such discretion be abused.” The exercise of discretion must be an actual “‘[conscious] balancing [of] risks and advantages’ … ,” not merely “lower-level, or ‘ministerial,’ decisions that merely implement a basic policy already formulated.”[34]

Here, SDCERS was the “public entity” and the SDCERS Board members were “public employees” of SDCERS. The Court noted that SDCERS Board members carefully evaluated a number of issues – whether the law required it to recoup the overpayments, whether it would be fair to do so, whether other options were available, and other issues. Such efforts showed that the SDCERS Board members weighed the “risks and advantages” in considering their policy-level decision. Their decision was thus clearly discretionary, not merely the carrying out of a ministerial duty. Therefore, the Board members had discretionary act immunity, and consequently the SDCERS system was immune under the Government Claims Act as well.

The Court noted that appellants did not dispute that immunity under the Government Claims Act would normally apply to the discretionary acts of SDCERS Board members. Appellants argued instead that the Section 815.2 (b) immunity did not bar the breach of fiduciary duty cause of action because that action was based on provisions of the California Constitution[35] that established the fiduciary duties of public pension boards. Appellants claimed the doctrine of constitutional supremacy enabled their breach of fiduciary cause of action to proceed despite the fact that Government Claims Act immunity would ordinarily attach. The Court noted that under the doctrine of constitutional supremacy, “it is well established that ‘[a] statute cannot trump the Constitution.’”[36] However, the Court observed that the constitutional provisions did not address whether beneficiaries and participants had the right to recover monetary damages from pension board members who breach those duties. Instead, the provisions merely established that public pension board members had certain fiduciary duties to participants and beneficiaries. The Court thus found that the doctrine of constitutional supremacy did not apply because appellants never identified any conflict between the constitutional provisions and the Government Claims Act immunity provisions.

The Fourth District also cited Nasrawi v. Buck Consultants LLC[37] as “the only other published authority to consider the issue of whether Government Claims Act immunity applies to constitutionally based breach of fiduciary claims against public pension plan members.” The Nasrawi Court noted that while the board in that case owed fiduciary duties under California Constitution, article XVI, section 17, its protection by immunity was “a separate question.” The Nasrawi Court determined that the plaintiffs there had not identified any authority that supported their argument that public entity employees were liable “for injuries caused by their discretionary acts or omissions that violate constitutionally imposed duties.”

The Fourth District next addressed issues that stemmed from the trial court’s rejection of appellants’ writ of mandate and declaratory relief causes of action.

Appellants argued that (1) SDCERS was required to file a lawsuit to recoup its overpayments, not pursue it via its administrative process; (2) had SDCERS done so, it would have been time-barred from recovering its overpayments under Cal. Code Civ. Proc. section 338(d), which sets a three-year limit for “[a]n action for relief on the ground of fraud or mistake. The cause of action in that case is not deemed to have accrued until the discovery, by the aggrieved party, of the facts constituting the fraud or mistake.”

Addressing the first element, the Court explained that nothing in the City of San Diego’s laws establishing the scope of SDCERS’s authority to administer the City’s pension system prevented SDCERS from trying to recover the overpayments through an administrative process. The Court also noted SDCERS generally had discretion to administer benefits to its members in a manner that it determined was in the best interest of the pension system and its members. Moreover, SDCERS was not authorized to make overpayments over those amounts that the City had authorized, so by seeking recoupment of the overpayment through an administrative process rather than by filing a lawsuit, SDCERS’ actions were consistent with its designated authority.

And as to the second element argued by the appellants, the Court explained that case law established that when recoupment was obtained through an administrative process, rather than through a lawsuit filed in court, the statute of limitations did not apply. (Little Company of Mary Hospital v. Belshe (1997) 53 Cal.App.4th 325, 329 [61 Cal. Rptr. 2d 626]; Robert F. Kennedy Medical Center v. Department of Health Services (1998) 61 Cal.App.4th 1357 [72 Cal. Rptr. 2d 180].)

The Court also noted that even if Section 338(d) statute of limitations did apply, the mere fact that SDCERS had all of the information available to make a correct calculation initially did not cause the limitations period to begin to accrue at that time. There had to have been some evidence that SDCERS had been aware of facts that should have made it suspicious that appellants’ pension benefits were erroneously calculated for the limitations period to begin to accrue. The Court additionally rejected appellants’ other arguments pertaining to their contention that SDCERS was prohibited from recouping the overpayments.

The Court thus concluded that based on the Government Claims Act, SDCERS was immune from appellants’ breach of fiduciary duty and conversion causes of action, despite the fact that the breach of fiduciary cause of action was based on duties described in the California Constitution. Thus, the Fourth District determined the trial court did not err in sustaining SDCERS’s demurrer to those causes of action, and affirmed.

  1. ‘Abood’ overturned; public sector agency-shop arrangement contravenes First Amendment.

Janus v. AFSCME, 2018 U.S. LEXIS 4028 (U.S. June 27, 2018)

Facts: Public employees in Illinois are allowed to unionize. A union is designated as the exclusive representative of all the employees, including those who do not join, if a majority of the employees in a bargaining unit vote to be represented by a union. Collective bargaining is the sole domain of the union in this situation. Individual employees cannot negotiate directly with their employer, nor have another agent represent the employees in doing so. A nonmember must pay a percentage of union dues, known as his or her “agency fee.” Under Abood v. Detroit Bd. of Ed.,[38] the agency fee may cover union expenditures attributable to those activities “germane” to the union’s collective-bargaining activities, but may not cover the union’s political and ideological projects. The union sets the agency fee every year and updates nonmembers with an explanation of its expenditures.

Mark Janus, a nonmember state employee whose unit a public-sector union (“Union”) represented, opposed the Union for its collective bargaining and other positions. He challenged the agency fee, arguing that it violated his First Amendment rights because the fee deduction was equivalent to coerced political speech, and the First Amendment prohibited coercing monies from nonmembers. A district court concluded that Abood foreclosed Janus’ claim and dismissed it. The Seventh Circuit Court of Appeals affirmed.

Held: In a contested 5-4 decision, the Supreme Court of the United States held that the First Amendment was violated when money was taken from nonconsenting employees for a public-sector union; agency fees could no longer be taken from nonconsenting public employees. The Court overruled Abood, finding that it was poorly reasoned, impractical, and inconsistent with standard First Amendment principles.

The Court explained that the First Amendment both generally prohibits the abridgment of freedom of speech and protects the right to reject association for expressive purposes. The Court quoted West Virginia Bd. of Ed. v. Barnette[39] in expressing: “If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion or force citizens to confess by word or act their faith therein.” Here, the Court found that agency fees were akin to forcing nonmembers to confess their faith in the union’s speech, an idea that Janus here found objectionable.  The First Amendment was violated when a person was compelled to subsidize the speech of other private speakers, as in Knox v. Service Employees.[40]

The Court found that neither of Abood’s two justifications for agency fees was persuasive. First, agency fees could not be upheld on the ground that they foster “labor peace.” The Court explained that in the 41 years since Abood, concerns that “conflict and disruption” would ensue if employees were represented by more than one union had proved to be unfounded from other examples. The Court noted that in the Federal Government and the 28 States with laws  that prohibited agency fees, millions of public employees were represented by unions that effectively served as the exclusive representatives of all the employees. Thus, agency fees were not required to achieve “labor peace.”

The Court explained that avoiding “the risk of ‘free riders,’” as discussed in Abood, was not a compelling state interest either because free-rider arguments were generally insufficient to overcome First Amendment objections. Moreover, in non-agency-fee jurisdictions, unions had sought to represent nonmembers even in the absence of agency fees.

The Court then explained Abood’s problems: it was poorly reasoned because it cited cases that were not on point; it engendered unworkable results because it was difficult to determine which expenses nonmembers could be required to cover; public spending since Abood had increased so dramatically that collective bargaining now was likely more politically significant than Abood ever contemplated; and the short-term nature of collective-bargaining agreements diminished Abood’s applicability. The Court overruled Abood, though the Court acknowledged some “unpleasant transition costs in the short term” for the unions. The Court concluded that States and public-sector unions could no longer extract agency fees from nonconsenting employees. Having overruled Abood, the Court reversed the Seventh Circuit’s judgment and remanded.


Joined by three other justices, Justice Kagan argued that Abood had for forty years had struck a “stable balance between public employees’ First Amendment rights and government entities’ interests in running their workforces as they thought proper.” Observing that Abood was “deeply entrenched” in the country’s law and economic life affecting thousands of contracts and millions of employees, Justice Kagan found that the majority had no real idea what the repercussions or scope of overruling Abood might be. Kagan concluded that this argued in favor of retaining Abood instead.


  1. Trial court properly uses its discretion under Penal Code section 17(b)(3) to refuse to reduce wobbler offense from felony to misdemeanor because defendant conspired to sell a large quantity of marijuana and had prior arrests involving marijuana and other drugs.

People v. Medina, 24 Cal. App. 5th 61 (2nd Dist. 2018)

Facts: Defendant Job Luna Medina pleaded guilty in June 2015 to felony conspiracy to commit a crime, a violation of Pen. Code, section 182 (a)(1). The target crime was possession of marijuana for sale, a violation of Health & Saf. Code section 11359. The trial court placed defendant on probation for one year without imposition of a sentence.

Marijuana possession for sale was a felony in 2013, when defendant engaged in the conspiracy, and also at the time of his 2015 guilty plea. Because the target offense was a felony, the conspiracy was a felony. However, under 2016’s Proposition 64, the target marijuana possession for sale offense is now generally a misdemeanor. (Health & Saf. Code, section 11359, as amended by Prop. 64.)

The trial court denied defendant’s 2017 motion to reduce his felony conviction pursuant to Penal Code sections 17(b)(3) and 11361.8(e). Defendant appealed.

Held: The California Second District Court of Appeal concluded that the trial court had discretion to reduce the offense under Section 17(b)(3) and properly exercised that discretion. The Court also concluded that defendant’s conspiracy offense was ineligible for reduction under Section 11361.8(e). The Court thus affirmed.

  1. Eligibility for sentence reduction under Section 17(b)(3)

The Court explained that Section 17(b)(3) allows a trial court, in its discretion, to declare a “wobbler”[41] offense a misdemeanor rather than a felony when a defendant is granted probation without imposition of sentence. Section 17(b)(3) declares: “(b) When a crime is punishable, in the discretion of the [trial] court, either by imprisonment in the state prison or imprisonment in a county jail under the provisions of subdivision (h) of [Penal Code] Section 1170, or by fine or imprisonment in the county jail, it is a misdemeanor for all purposes under the following circumstances: [¶] … [¶] (3) When the court grants probation to a defendant without imposition of sentence [as here] and at the time of granting probation, or on application of the defendant or probation officer thereafter, the [trial] court declares the offense to be a misdemeanor.” Here, the Court observed that defendant’s conspiracy offense became a “wobbler” after Proposition 64 made possession of marijuana for sale (the target of the conspiracy here) a misdemeanor offense. Having established that the trial court had discretion to reduce the “wobbler” offense, the Court of Appeal next examined the trial court’s exercise of that discretion.

The Second District explained that its review of the trial court’s order denying relief under section 17(b)(3) was for an abuse of discretion, and that the defendant shouldered the burden of showing that the trial court’s decision was irrational or arbitrary.[42] The Second District determined that defendant failed this burden because the trial court properly considered the defendant’s character and the facts and circumstances of the offense, including that defendant had prior arrests involving marijuana and other illegal drugs and that he conspired to sell a large  quantity (35 pounds) of marijuana. The Second District found that the trial court “reasonably declined to exercise its discretion in defendant’s favor,” a choice that was not “irrational or arbitrary”.

  1. Eligibility for sentence reduction under Section 11361.8(e)

Turning to defendant’s second avenue to pursue reduction eligibility, the Court of Appeal explained that Section 11361.8(e), added by Proposition 64, permitted a person convicted of specified marijuana-related offenses, including possession for sale, to apply to have a felony conviction redesignated a misdemeanor or infraction. However, the Court noted that Penal Code section 182, the conspiracy statute, was not one of the marijuana-related offense specified in section 11361.8(e). Moreover, under Section 11361.8(e), defendant’s eligibility for reduction depended on whether he was a person who “would not have been guilty of an offense or who would have been guilty of a lesser offense under [Proposition 64] had that act been in effect at the time of the offense.” The Court found that defendant would not have been guilty of a lesser offense by the mere application of Proposition 64. Therefore, defendant’s felony conspiracy conviction was not eligible for reduction under section 11361.8(e). 

  1. Concurrent convictions for attempted murder in case convicting defendant of possession of marijuana for sale do not render defendant ineligible for resentencing relief where ineligibility requires ‘prior’ such convictions.

People v. Smit, 2018 Cal. App. LEXIS 550 (4th Dist. June 15, 2018)

Facts: In 2009, Nicholas Smit was charged and eventually convicted of possession of marijuana for sale, a felony at that time under Health & Saf. Code, section 11359. In 2016, voters passed Proposition 64, which amended Section 11359 to make the recreational use of marijuana legal and reduced the penalties on various marijuana-related charges, including generally making a charge of possessing marijuana for sale a misdemeanor offense. Proposition 64 also added Section 11361.8, which provided a means for a person to obtain postconviction benefit of the changes in law if the individual did not have a disqualifying prior conviction.

Smit petitioned a superior court for resentencing relief to reduce his felony possession of marijuana for sale conviction to a misdemeanor. The court found Smit ineligible for resentencing because he had also been convicted of four counts of attempted murder in the same case as the marijuana conviction.

Held: The California Fourth District Court of Appeal held that the concurrent convictions for attempted murder did not make the defendant ineligible for resentencing on the marijuana count. The Court explained that Health & Saf. Code section 11361.8 (a) makes an individual eligible for resentencing if he or she would not have been convicted of felony possession of marijuana for sale had Proposition 64 been in effect when the defendant was charged with possessing marijuana for sale. Because Smit did not have a prior attempted murder conviction (or any other prior disqualifying conviction) at the time he was charged with possessing marijuana for sale, Smit could not have been convicted of felony possession of marijuana for sale. Instead, Smit would have been convicted of a misdemeanor violation, according to Health & Saf. Code section 11359(b). The Court determined that it followed that Smit’s later convictions in the same case for attempted murder and conspiracy to commit murder did not preclude his eligibility for resentencing on the marijuana count; concurrent convictions were not “prior” convictions for these purposes. Accordingly, the Court of Appeal reversed the order and remanded.


Civil Code section 3531 did not render Penal Code section 31910(b)(7)(a) unenforceable, even when compliance with the statute is impossible.

National Shooting Sports Foundation, Inc. v. State of California, 2018 Cal. LEXIS 4696 (Cal. June 28, 2018)

Facts: In 1999, the California Legislature enacted the Unsafe Handgun Act[43] to establish safety standards for all handguns manufactured, imported, and sold in California. The Legislature amended the definition of unsafe handguns in 2007 to include “all semiautomatic pistols that are not already listed on the roster pursuant to [Pen. Code] [s]ection 32015 [if] not designed and equipped with a microscopic array of characters that identify the make, model, and serial number of the pistol, etched or otherwise imprinted in two or more places on the interior surface or internal working parts of the pistol, and that are transferred by imprinting on each cartridge case when the firearm is fired … .” (Pen. Code, section 31910 (b)(7)(A)). This standard was known as dual placement microstamping.

Civil Code section 3531 states that “[t]he law never requires impossibilities.” Plaintiff National Shooting Sports Foundation, Inc. (“NSSF”) filed a complaint with one cause of action for declaratory and injunctive relief. NSSF argued that dual placement microstamping technology is impossible to implement, and contended that Pen. Code section 31910(b)(7)(A) was consequently unenforceable under Civil Code section 3531. The Attorney General moved for judgment on the pleadings, and the trial court granted the motion without leave to amend. The Court of Appeal agreed with NSSF, and reversed. The Supreme Court of California granted review.

Held: The California Supreme Court held that a court could not invalidate Penal Code section 31910(b)(7)(A) on the basis of Civil Code section 3531’s declaration that “[t]he law never requires impossibilities” because Section 3531 was intended as an interpretive aid to infrequently authorize an exception to a statutory mandate, not a means to void a statutory mandate. In reaching its conclusion, the Supreme Court explained that NSSF’s preferred interpretation of Section 3531 as a ground for invalidating a statutory mandate completely had never been recognized, and was “contrary to established principles of statutory interpretation.”

The Court examined the history of Section 3531 and determined it to be “an interpretative canon for construing statute,” not a way to invalidate said statute. The Court cited Sutro Heights Land Co. v. Merced Irr. Dist.[44] as an example where Section 3531 was used to excuse compliance with a state law requiring drainage efforts because it would have ruined an irrigation district and its landowners had it been strictly implemented. The Court there explained that it was never intended by the statute’s implementers that an irrigation district should “work its own destruction” by adherence to the statute, and that the Sutro Court had interpreted, not invalidated the statute.

Here, the Court observed that the California Legislature enacted the Unsafe Handgun Act and amended it with Pen. Code section 31910 (b)(7)(A)’s requirement in effect on January 1, 2010. The Court found that neither the text nor the purpose of the Unsafe Handgun Act revealed any notion that a showing of impossibility could excuse compliance with the statutory requirement once the statute went into effect. The Supreme Court therefore reversed and remanded to the Court of Appeal to affirm the trial court’s judgment granting the Attorney General’s motion for judgment on the pleadings.


Plaintiffs who respond to 911 call of uncertain nature at county sheriff’s request are engaged in active law enforcement and are entitled to exclusive remedy of workers’ compensation.

Gund v. County of Trinity, 24 Cal. App. 5th 185 (3rd Dist. 2018)

Facts: In March 2011, Trinity County Sheriff’s Office deputy Ron Whitman phoned plaintiffs, citizens James and Norma Gund, and asked them to check on a neighbor who had called 911 for help. Whitman said he was hours away and the 911 call was probably related to bad weather and was “no big deal.” Plaintiffs were not employed by the county. The deputy did not mention information suggesting that the 911 call was due to a possible crime in progress. Unaware of any risk, plaintiffs went over to the neighbor’s house where they were violently attacked by a man who had just murdered the neighbor and her boyfriend. The plaintiffs escaped and survived their injuries. The plaintiffs sued the county and the officer for negligence and misrepresentation, alleging defendants created a special relationship with plaintiffs and owed them a duty of care. Defendants successfully moved for summary judgment on the ground that workers’ compensation was plaintiffs’ exclusive remedy under Lab. Code section 3366. Plaintiffs appealed.

Held: The Third District Court of Appeal held that plaintiffs were entitled to workers’ compensation because they were engaged in active law enforcement. Lab. Code section 3366 was applicable.

The Court began by observing that Lab. Code section 3602 declares that where workers’ compensation is available, it is the exclusive remedy for work-related injury. The Court explained that Lab. Code section 3366 provides that any person “‘engaged in the performance of active law enforcement service as part of the posse comitatus or power of the county, and each person … engaged in assisting any peace officer in active law enforcement service at the request of such peace officer, is deemed to be an employee of the public entity that he or she is serving or assisting in the enforcement of the law, and is entitled to receive compensation from the public entity in accordance with the provisions of this division [workers’ compensation].’”

Plaintiffs contended on appeal that Section 3366 was inapplicable because they were not engaged in assisting in active law enforcement. The Court said that plaintiffs were clearly assisting a peace officer at his request, leaving the question of whether they were engaged in assisting in “active law enforcement service.” Citing Crumpler v. Board of Administration[45] and Glover v. Board of Retirement,[46] among other cases, the Court explained that “active law enforcement” contemplated that the individual was “exposing himself or herself to risks inherent in preventing a crime or breach of peace for protection of the public.”

The court concluded that Section 3366 applied here, because responding to a 911 call for help “of an uncertain nature” was active law enforcement, despite the officer’s misrepresentations. The Court explained that “active law enforcement” under Section 3366 meant “confronting the risks of dealing with the commission of crime or breach of the peace for the protection of the public.” The Court added that 911 calls generally carried such risk, but especially 911 calls for help of an uncertain nature. The Court added that the officer would have been doing “active law enforcement service” if he himself had gone to the 911 caller’s home to check on her.

Because the Court concluded that Section 3366 applied to plaintiffs, their remedy was worker’s compensation. Accordingly, the Court affirmed.

[1] 436 U.S. 658 (1978).

[2] 429 U. S. 274 (1977).

[3] 547 U. S. 250 (2006).

[4] BE&K Constr. Co. v. NLRB, 536 U. S. 516 (2002).

[5] 18 U.S.C. 2701, et seq.

[6] 389 U. S. 347 (1967).

[7] Smith v. Maryland, 442 U.S. 735 (1979).

[8] Boyd v. United States, 116 U. S. 616 (1886).

[9] United States v. Di Re, 332 U. S. 581 (1948).

[10] Kyllo v. United States, 533 U. S. 27 (2001).

[11] 134 S. Ct. 2473 (2014).

[12] 565 U.S. 400 (2012).

[13] 425 U. S. 435 (1976).

[14] 442 U. S. 735 (1979).

[15] Kyllo, 533 U. S., at 36.

[16] Saucier v. Katz, 533 U.S. 194 (2001).

[17] Graham v. Connor, 490 U.S. 386 (1989).

[18] Ashcroft v. al-Kidd, 563 U.S. 731, 741 (2011).

[19] One of two considerations in qualified immunity analysis is whether force was reasonable or excessive.

[20] The second consideration in qualified immunity analysis is whether the law was clearly established at the time

that the challenged official conduct was unlawful.

[21] 392 U.S. 1 (1968).

[22] Pennsylvania v. Mimms, 434 U.S. 106 (1977).

[23] 1 Cal.3d 658 (1970).

[24] A.K.H. ex rel. Landeros v. City of Tustin, 837 F.3d 1005, 1011 (9th Cir. 2016).

[25] Tennessee v. Garner, 471 U.S. 1, 9 (1985).

[26] 746 F.3d 1112 (9th Cir. 2014).

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

[28] Mullenix v. Luna, 136 S. Ct. 305 (2015).

[29] Clark v. Bear Stearns & Co., Inc., 966 F.2d 1318 (9th Cir.1992).

[30] Far Out Prods., Inc. v. Oskar, 247 F.3d 986, 993 (9th Cir. 2001).

[31] 480 U.S. 709 (1987).

[32] 474 F.3d 1184 (9th Cir. 2007).

[33] Gov. Code, section 810 et seq.

[34] Caldwell v. Montoya, 10 Cal.4th 972 (1995).

[35] Cal. Const., art. XVI, section 17.

[36] City of San Diego v. Shapiro, 228 Cal.App.4th 756 (2014).

[37] 231 Cal.App.4th 328 (2014).

[38] 431 U. S. 209 (1977).

[39] 319 U. S. 624, 642 (1943).

[40]  567 U. S. 298 (2012).

[41] A “wobbler” offense is one that is alternatively punishable as a misdemeanor or felony.

[42] People v. Superior Court, 14 Cal.4th 968, 977 (1997); People v. Mullins,19 Cal.App.5th 594, 611 (2018).

[43]  Pen. Code, sections 31900–32110.

[44] 211 Cal. 670 (1931).

[45] 32 Cal.App.3d 567 (4th Dist. 1973).

[46] 214 Cal.App.3d 1327 (2nd Dist. 1989).