Courtesy of James R. Touchstone, Esq.


  1. Ninth Circuit upholds decision finding former city manager violated former police chief’s constitutional rights.

Greisen v. Hanken, 2019 U.S. App. LEXIS 16202 (9th Cir. May 31, 2019)

Facts: By mid-2012, Doug Greisen had worked as the chief of police for the City of Scappoose, Oregon for over ten years. Former city manager Jon Hanken was responsible for overseeing the city’s budget and for annually submitting a budget to the city council for review. Greisen became suspicious of Hanken’s budgeting practices after learning that the city delayed paying police department invoices, sometimes for as long as four months, before the end of the fiscal year on July 1. Greisen worried Hanken had made the city’s external auditing process less rigorous, and discussed his concerns with several city council members and others in city government over the following year. Greisen learned the city was withholding payment on invoices from other departments also. The city had switched to a new less diligent auditor who did not seem to abide by established accounting practices. He took a college course on government budgeting and financial management.

In August 2012, Hanken rebuffed Greisen’s attempt to discuss the budget, telling Greisen that Greisen was not knowledgeable about budgeting and financial management matters. In the summer and fall of 2013, Hanken initiated three separate investigations of Greisen for alleged violations associated with the PIT maneuver, hostile work environment, and financial mismanagement, respectively. During the course of the various investigations, Hanken suspended Greisen, placed him on an indefinite leave and prevented Greisen from speaking publicly about the investigations. Meanwhile, Hanken released information about the investigations to the media. After a city review committee recommended retraction of Greisen’s suspension, Hanken resigned, citing the commission’s findings as the cause of his resignation.

In early 2014, Hanken’s replacement as city manager, David Otterman, fired Greisen after people Otterman spoke with expressed polarizing views about Greisen. Greisen tried to find other employment, but was unsuccessful.

In 2014, Greisen filed an action under 42 U.S.C. section 1983, alleging Hanken violated the First Amendment by subjecting him to adverse employment actions in retaliation for his protected speech. Prior to the trial, the District Court denied Hanken’s motion for summary judgment on qualified immunity. A jury subsequently found for Greisen, and Hanken appealed.

Held: The Ninth Circuit Court of Appeals explained at the outset: “A First Amendment retaliation claim turns on a sequential five-step series of questions: (1) whether the plaintiff spoke on a matter of public concern; (2) whether the plaintiff spoke as a private citizen or public employee; (3) whether the plaintiff’s protected speech was a substantial or motivating factor in the adverse employment action; (4) whether the state had an adequate justification for treating the employee differently from other members of the general public; and (5) whether the state would have taken the adverse employment action even absent the protected speech.” Eng v. Cooley, 552 F.3d 1062, 1070 (9th Cir. 2009). The burden of proof falls upon the plaintiff for the first three questions. If the plaintiff succeeds thus far, the burdenshifts to the defendant on the last two questions. The Court also explained that the plaintiff must also establish that the defendant’s retaliatory conduct was a but-for cause of the defendant’s damages.” See Mendez v. Cty. of L.A., 897 F.3d 1067, 1074 (9th Cir. 2018).

Hanken challenged the verdict in favor of Greisen on the first four questions in the First Amendment retaliation analysis. The Court explained that Hanken’s arguments also implicated qualified immunity. Qualified immunity analysis requires a court to determine whether a plaintiff has shown a violation of a constitutional right, and, if so, whether the right at issue was clearly established at the time of defendant’s alleged misconduct. Pearson v. Callahan, 555 U.S. 223, 232 (2009). To determine that a right was clearly established, the court “must identify precedent as of [the date of the alleged violation] that put [the defendant] on clear notice” that his or her actions were unconstitutional. S.B. v. County of San Diego, 864 F.3d 1010, 1015 (9th Cir. 2017).

Regarding the first question, the Ninth Circuit explained that the “misuse of public funds . . . [is a] matter[] of inherent public concern.” Johnson v. Multnomah County, 48 F.3d 420, 425 (9th Cir. 1995). “[S]peech warrants protection when it ‘seek[s] to bring to light actual or potential wrongdoing or breach of public trust.’” Barone v. City of Springfield, 902 F.3d 1091, 1098 (9th Cir. 2018) (second alteration in original) (quoting Connick, 461 U.S. at 148).

Resolving the first question of the retaliation analysis, the Court found Greisen’s speech substantially involved a matter of public concern. The Court explained that Greisen’s interest in uncovering financial mismanagement using city funds was exhibited by Greisen’s talks with other city officials to learn about the financial management process, his taking of the college budgeting course, and his deep and lengthy involvement in the community. The Court also found that by 1995 when Johnson was decided, it was clearly established that misuse of public funds was a matter of public concern.[1]

Turning to the question of whether Greisen spoke as a private citizen or a public employee, the Ninth Circuit explained that, under Garcetti v. Ceballos, “when public employees make statements pursuant to their official duties, the employees are not speaking as citizens for First Amendment purposes, and the Constitution does not insulate their communications from employer discipline.” 547 U.S. 410, 421 (2006). To make this determination, courts consider (1) whether “the employee confined his communications to his chain of command”; (2) whether “the subject matter of the communication” fell within the plaintiff’s regular job duties; and (3) whether the “employee sp[oke] in direct contravention to his supervisor’s order[].” Dahlia v. Rodriguez, 735 F.3d 1060, 1074-75 (9th Cir. 2013) (en banc).

The Court determined that each Dahlia consideration supported the jury verdict that Greisen spoke as a private citizen. The Court explained that Greisen had conversations outside his chain of command with city councilors, other department heads, and the city finance administrator; Greisen’s concerns pertained to discovering “corruption or systemic abuse” (Id. 735 F.3d at 1075) in city finances and management, and these functions were not part of his official duties as chief of police; and Hanken’s warnings for Greisen to stay on his “side” of city hall and to avoid speaking to Councilor Ingham provided strong evidence that Greisen’s supervisor, Hanken, did not want him discussing or looking into the overall city budget or Hanken’s accounting practices. Moreover, Hanken was not entitled to qualified immunity on the private citizen issue because he told Greisen twice that Greisen should not concern himself with issues about the overall budget. The Court found no evidence suggested a reasonable official in Hanken’s position would have believed that analyzing the timing of invoice payments in other departments or city-wide audit practices was within Greisen’s job duties as police chief.

The Court of Appeals explained that the third step in a First Amendment retaliation analysis requires the plaintiff bears to show the state took an adverse employment action against the plaintiff and that the plaintiff’s speech was a substantial or motivating factor in the adverse action. See Eng, 552 F.3d at 1071. “In a First Amendment retaliation case, an adverse employment action is an act that is reasonably likely to deter employees from engaging in constitutionally protected speech.” Coszalter, 320 F.3d at 970. While the Court acknowledged that “[r]estricting the ability of government decision makers to engage in speech risks interfering with their ability to effectively perform their duties” and “ignores the competing First Amendment rights” of the officials themselves,[2] the Ninth Circuit’s decision in Allen v. Scribner[3] held that a First Amendment retaliation claim may be based on retaliatory speech when that speech is part of a campaign of harassment designed to burden the plaintiff’s protected expression. Moreover, retaliatory speech may serve as the basis for a First Amendment retaliation claim when it “intimat[es] that some form of punishment or adverse regulatory action would follow.” Brodheim v. Cry, 584 F.3d 1262, 1270 (9th Cir. 2009) (quoting Okwedy v. Molinari, 333 F.3d 339, 343 (2d Cir. 2003)).

The Court found that the instant case fell “squarely within Allen” because Greisen alleged the defamation he endured was part of a concerted effort to deter him from, and punish him for, engaging in constitutionally protected speech; and he alleged Hanken engaged in a campaign of harassment against him that included not only defamatory communications with the press but also a suspension, an indefinite leave, a one-sided gag order and the instigation of three spurious investigations. Thus, the Court found that Greisen’s retaliation claim could be based in part on Hanken’s own speech acts, in the form of defamatory communications to the media. Also, with Allen, Hanken was on notice that a First Amendment retaliation claim could be based in part on acts of retaliatory speech; thus, he was not entitled to qualified immunity on the contrary view.

With regard to the fourth adequate justification question, the Court observed first that “[t]he district court need not consider arguments raised for the first time in a reply brief.” Zamani v. Carnes, 491 F.3d 990, 997 (9th Cir. 2007). Hanken had briefly asserted this argument for the first time in his reply brief on his renewed motion for judgment as a matter of law; thus, he waived the argument that his actions were supported by an adequate justification.

Finally, the Court found that substantial evidence supported the jury’s conclusion that Hanken’s actions proximately caused Greisen’s termination. The Supreme Court in Staub v. Proctor Hosp.,[4] held that “[p]roximate cause requires only ‘some direct relation between the injury asserted and the injurious conduct alleged.’”[5] Thus, under Staub, the question was whether Hanken’s actions were a “causal factor” in Otterman’s decision to fire Greisen — i.e., whether Otterman fired Greisen “for reasons unrelated to [Hanken’s] original biased action[s].”

Otterman, the next city manager, testified that his decision to fire Greisen was based on the results of the three investigations Hanken initiated. The Court explained, even assuming the independence of the investigations, Otterman testified that the negative media attention around Greisen and the fact that “the police department employees felt that they could no longer rely on . . . Greisen as the chief of police” motivated Otterman’s decision. The Court found that Hanken’s “campaign of public humiliation” of Greisen “through, among other things, false and misleading representations” almost certainly played a direct and substantial role in creating or exacerbating the conditions Otterman faced regarding Greisen. The Court observed that Otterman also made clear that Hanken’s actions created an environment of unrest that framed his decision, as demonstrated by Otterman’s testimony about “several articles about [Greisen] and about what was going on in the City.” The Court thus found that a reasonable jury could have found that Hanken’s actions were a causal factor in Otterman’s decision to let Greisen go.

Based on the reasoning above and its finding that Hanken was not entitled to qualified immunity, the Ninth Circuit Court of Appeals accordingly affirmed.

For a more detailed discussion of this case, please see Client Alert Vol. 34, No. 26, available at www.jones-mayer.com.

  • Totality of circumstances did not provide officers with the requisite reasonable suspicion of criminal activity to stop defendant.

United States v. Brown, 2019 U.S. App. LEXIS 16886 (9th Cir. June 5, 2019)

Facts: In January 2016, a YWCA employee called 911 and said that a resident reported someone with a gun. Carrying a gun is not a criminal offense in the state of Washington. The employee did not see the gun herself, but conveyed to the 911 dispatcher the resident’s comments describing the situation. The resident described the person who had the gun as a young, black man of medium build with dreadlocks, a camouflage jacket, and red shoes. In response to the dispatcher’s specific questions about what the man was doing with the gun, the employee answered that the only response from the resident was that “he has a gun.” The employee did not suggest that the resident was alarmed or visibly upset by the gun’s presence. There was no sign that the man was loitering at the residence, was known by anyone, or had ever been encountered by anyone else other than the reporting resident. The resident remained in the YWCA lobby but did not give her name or speak to the dispatcher or officers who responded to the call. The anonymous tipster was heard over the phone saying that she did not like the police.

While Seattle Police officers spoke to the YWCA employee, King County Sheriff’s Office Metro Transit Unit Officers Ryan Mikulcik and his partner Curt Litsjo heard and responded to the 911 call. From his patrol car, Officer Mikulcik spotted defendant David Derek Brown, who was on foot and matched the 911 description. Mikulcik called Litsjo. Mikulcik pursued Brown by driving behind him slowly for several blocks before activating his patrol lights and driving the wrong direction down a one-way street to follow Brown. When he saw the lights and patrol car coming from behind him, Brown ran away. He ran for a block before the pursuing officers stopped him and ordered him to the ground at gunpoint. The officers handcuffed Brown and discovered a firearm in his waistband. Continuing their search, the officers found drugs, cash, and other items.

Brown moved to suppress the evidence from the searches, arguing that the officers lacked reasonable suspicion to stop him under Terry v. Ohio, 392 U.S. 1 (1968). The District Court denied the motion, and Brown appealed.

Held: The Ninth Circuit Court of Appeals observed that a law enforcement officer may only “conduct a brief, investigatory stop when the officer has a reasonable, articulable suspicion that criminal activity is afoot.” Illinois v. Wardlow, 528 U.S. 119, 123 (2000). To evaluate whether the Officers Mikulcik and Litsjo met this standard in their stop of Brown, Court analyzed “the totality of the circumstances surrounding the stop, including ‘both the content of information possessed by police and its degree of reliability.’” United States v. Williams, 846 F.3d 303, 308 (9th Cir. 2016) (quoting Alabama v. White, 496 U.S. 325, 330 (1990)).

The Tip

The Court of Appeals first considered the resident’s tip conveyed secondhand through the YWCA employee. The Court explained that an anonymous tip that identifies an individual but lacks “moderate indicia of reliability”[6] generates weak support for a finding of reasonable suspicion because “an anonymous tip alone seldom demonstrates the informant’s basis of knowledge or veracity.”[7]

The Court observed that the tip was anonymous as the resident would not speak firsthand to the authorities or offer her name through the employee to police. The secondhand information through the YWCA employee described a young, black man had a gun, but having a gun is presumptively legal in Washington. The Court said that a “virtually identical” anonymous tip was discussed in Florida v. J.L., in which the Supreme Court held an anonymous tip that a young black man in a plaid shirt was carrying a gun insufficient to create reasonable suspicion.

The Ninth Circuit also explained that a tip must be reliable not only in its likelihood to identify a determinate person, but also in its assertion of illegality. (Florida v. J.L., at 272.) Here, none of the responding officers could articulate what crime they suspected Brown of committing, only that they heard the subject had a gun. The Court noted that even if the officers suspected of carrying his gun without a license, a misdemeanor in Washington state, the failure to carry a license is merely a civil infraction. As it was presumptively legal to carry a gun, the Court found that the anonymous tip that Brown had a gun created at most a very weak inference that he was unlawfully carrying the gun without a license, and “certainly not enough to alone support a Terry stop.”

The Court also observed that there was no suggestion of any criminal activity or behavior, or a threat of harm. Brown had not loitered at the YWCA shelter nor harassed anyone around the shelter, but was instead walking away from the YWCA at the time of the stop. The anonymous tipster did not appear to the employee to be alarmed or upset. Instead, she merely “walked in” and said “that guy has a gun,” conveyed through the employee. Under the totality of the circumstances, the Court found the resident’s tip was “worth little.” Given the anonymous tip and the presumptive legality of carrying a concealed firearm in Washington, the Court concluded the tip alone did not create reasonable suspicion that Brown was engaged in any criminal activity.

The Flight

The Court then discussed Brown’s flight from the two officers. The Ninth Circuit explained that the Supreme Court has treated flight as just one factor in the reasonable suspicion analysis, and the High Court has a long history[8] of recognizing that innocent people may reasonably flee from the police. The Court distinguished the circumstances here from several other cases, including those presented in United States v. Smith[9] where a suspect in a known high crime area was spotted by an officer who ran his siren twice, pulled over and verbally commanded the suspect to stop, and then later spoke clearly with the suspect before the suspect fled. The Court also found the facts of the Wardlow case distinguishable because the officers in that case came to a high-crime area known also for heavy narcotics trafficking, and there saw a suspect holding a baggie who then immediately fled.

Here, however, the Court observed, the officers did not communicate with Brown in any way before they flashed their lights and then detained him. The government conceded that the area Brown was walking was not a known high crime area, or one known for unlawful gun possession. The officers never saw Brown holding a gun or walking in a way that give credence to the resident’s secondhand report of person with a gun. The officers did not make any verbal requests of Brown, which naturally meant that Brown did not refuse any such requests. The Court found that, under these circumstances, Brown had no obligation to stop and speak to an officer. Brown’s flight did not corroborate any reliable suspicion of criminal behavior.

The Court found the combination of almost no suspicion from the tip and Brown’s flight did not equal reasonable suspicion. Without more specific, articulable facts supporting their actions, the Ninth Circuit Court of Appeals concluded that, under the totality of the circumstances, the officers lacked the requisite reasonable suspicion that criminal activity was afoot before stopping Brown. Accordingly, the Ninth Circuit Court of Appeals reversed the District Court’s denial of Brown’s motion to suppress.

For a more detailed discussion of this case, please see Client Alert Vol. 34, No. 23, available at www.jones-mayer.com.

  • Officer unlawfully detained defendant by pulling behind defendant’s vehicle and shining spotlight on defendant’s vehicle without reasonable suspicion.

Cruz v. Barr, 2019 U.S. App. LEXIS 17674 (9th Cir. June 13, 2019)

Facts: In April 2017, a law enforcement officer was on patrol in a marked vehicle in the City of San Jacinto very early one morning. The officer observed a parked car on a residential street with its fog lights on, with two people sitting inside. The officer made a U-turn, parked about 10 feet behind the car, pointed two spotlights at the car, and exited his vehicle. As the officer approached the driver’s side of the other car, he noted a strong smell of marijuana which he thought was coming from the car. He shined his flashlight in the car and asked Martell Shimon Kidd, who was in the driver’s seat, and the other individual in the passenger seat what they were doing. The officer noticed the passenger was trying to hide some bags apparently containing marijuana. Kidd admitted to the officer that he was on probation. After having the two individuals sit in his patrol vehicle, the officer verified Kidd’s probation terms. Kidd spoke up without being asked to tell the officer that there was a firearm in the car’s center console. The officer verified Kidd’s probation and learned Kidd was subject to a search condition. The officer searched the Kidd’s car. The officer found 26 ounces of marijuana, a digital scale, a pistol with the serial number scratched off, a loaded magazine for the pistol; and 142 pills of alprazolam. The officer arrested Kidd and impounded the evidence.

Based on the evidence from the search, Kidd was charged with several felony offenses. Kidd’s motion to suppress under Penal Code section 1538.5 was heard at a preliminary hearing, but a magistrate judge denied the motion. After Kidd was arraigned on the information, he again moved to suppress under Section 1538.5 but the trial court judge also denied his motion. Kidd later raised the suppression issue a third time in a motion to set aside the information pursuant to Penal Code section 995, which was heard by a different trial court judge after the judge reviewed the preliminary hearing transcript and the parties’ briefing, This trial court granted Kidd’s motion, finding that the evidence against Kidd was the product of an unreasonable search and seizure in violation of the Fourth Amendment. The People appealed.

Held: The California Fourth District Court of Appeal first dealt with the procedural issue, before turning to the merits of the case. The People argued on appeal that because Kidd had already moved to suppress during the preliminary hearing and again after arraignment under Section 1538.5, Kidd had no right to raise again the constitutionality of his detention in a motion under Section 995. The Fourth District concluded that there was no procedural bar to the second trial court judge’s acceptance ofthe arguments regarding suppression raised by Kidd in his Section 995 motion, regardless of the earlier rejection by the first judge of those same arguments in Kidd’s earlier Section 1538.5 motion.

The Court of Appeal next addressed the merits of the case. The People argued that the officer did not detain Kidd until after the officer spoke to him and learned of Kidd’s probation. The People contended that before that point, the officer’s approach and engagement was a consensual encounter that did not require legal justification.[10] The Court explained that “[a]s long as a reasonable person would feel free to disregard the police and go about his or her business, the encounter is consensual and no reasonable suspicion is required on the part of the officer.” (In re Manuel G. (1997) 16 Cal.4th 805, 821.) “In determining whether a reasonable person would have believed he or she was free to leave or end the encounter, a court must take into account the totalityof the circumstances from the perspective of a reasonable person in the defendant’s position.” (People v. Parrott, (2017) 10 Cal.App.5th 485, 493.)

The Court concluded that Kidd was detained when the officer made a U-turn to pull in behind him and put his spotlights on Kidd’s car. The Court acknowledged that the officer neither blocked Kidd’s car in, nor did the officer illuminate his colored emergency lights, which would have unambiguously signaled a detention.[11] Still, the Court noted, motorists are trained to yield immediately when a law enforcement vehicle pulls in behind them and turns on its lights, regardless of the color of the lights the officer turned on. The Court found that a reasonable person in Kidd’s circumstances “would expect that if he drove off, the officer would respond by following with red light on and siren sounding ….” (People v. Bailey (1985)176 Cal.App.3d 402, 406.) Even if the detention was not established at this point, it would be settled whenthe officer soon exited his patrol vehicle and began to approach Kidd’s car. Thus, under the totality of the circumstances, the Court found that a reasonable person in Kidd’s circumstances would not have felt free to leave when the officer made a U-turn to pull in behind him and trained spotlights on his car.

The Court also concluded that Kidd’s detention was not legally justified because the officer particularly noted Kidd’s vehicle only because he observed that the fog lights were illuminated, but the normal headlamps were not. Vehicle Code section 24403(a) provides that a motor vehicle “may be equipped with not more than two foglamps that may be used with, but may not be used in substitution of, headlamps.” The Court explained that “[i]t is not, however, a violation to use only fog lamps while parked. (See Veh. Code, § 24400, subd. (b) [requiring lighted headlamps while a vehicle is ‘operated during darkness, or inclement weather, or both’].)” The Court rejected the People’s assertion that a car parked with lights in this manner could provide reasonable suspicion that a crime was imminent, thereby justifying a detention. The Court said this was mere speculation, not reasonable suspicion.

Accordingly, the Fourth District Court of Appeal affirmed the trial court’s order suppressing the evidence against Kidd and setting aside the information pursuant to section 995.

  • Because government used search warrant as pretext to arrest nearly 200 undocumented workers, Michigan v. Summers justification for bypassing Fourth Amendment’s traditional protections disappeared.

Cruz v. Barr, 2019 U.S. App. LEXIS 17674 (9th Cir. June 13, 2019)

Facts: Immigration and Customs Enforcement (ICE) agents executed a search warrant for employment-related documents at a printer-cartridge manufacturing company’s factory in Van Nuys. Certain documents later revealed that ICE’s primary purpose in executing the search warrant was not to search for employment records as was the warrant’s subject matter, but to make arrests. An internal memorandum issued before the operation stated that ICE “[would] be conducting a search warrant and expects to make 150-200 arrests.” The memorandum also noted that ICE would have “2 buses and 5 vans” ready to transport potential detainees from the factory and “200 detention beds available to support the operation.” Another planning documentnoted that ICE “anticipate[d] executing a federal criminal search warrant at MSE in order to administratively arrest as many as 100 unauthorized workers” (italics added).

During the execution of the warrant at the factory, agents detained, interrogated, and arrested approximately 130 workers for immigration violations, including Gregorio Perez Cruz. Perez Cruz was subsequently placed in a removal proceeding and charged with entry without inspection.

Based on statements that Perez Cruz had given during his detention, ICE prepared a Form I-213, alleging that Perez Cruz had admitted he was brought illegally into the United States as a child. The government also produced Perez Cruz’s birth certificate based on statements he provided in connection with the factory raid. Perez Cruz moved to terminate the proceedings or, in the alternative, suppress evidence. The immigration judge granted Perez Cruz’s motion to terminate, concluding that ICE’s initial detention of Perez Cruz and failure to advise Perez Cruz of his rights violated ICE’s own regulation.

The government appealed. The Board of Immigration Appeals (“BIA”) reversed, concluding that Perez Cruz’s detention and interrogation violated neither the agency’s regulation nor the Fourth Amendment under Michigan v. Summers (1981) 452 U.S. 692. On remand from the BIA, the immigration judge entered a removal order against Perez Cruz. When Perez Cruz again appealed, the BIA affirmed the IJ’s order and dismissed the appeal. Perez Cruz petitioned for review.

Held: The Ninth Circuit Court of Appeals explained that the Fourth Amendment’s exclusionary rule does not generally apply to immigration proceedings, but there are two longstanding exceptions: (1) “when the agency violates a regulation promulgated for the benefit of petitioners and that violation prejudices the petitioner’s protected interests” and (2) “when the agency egregiously violates a petitioner’s Fourth Amendment rights.” Sanchez v. Sessions, 904 F.3d 643, 649 (9th Cir. 2018).

Perez Cruz argued on appeal that his detention violated both the Fourth Amendment and 8 C.F.R. section 287.8(b)(2), and that the evidence against him should therefore have been suppressed. 8 C.F.R. section 287.8(b)(2) requires an immigration officer to have “reasonable suspicion, based on specific articulable facts, that a person being questioned is, or is attempting to be, engaged in an offense against the United States or is an alien illegally in the United States” in order to briefly detain the person for questioning.

The Court explained that Michigan v. Summers, 452 U.S. 692 (1981) held that a warrant to search for contraband based on probable cause implicitly carries with it the limited authority to detain the occupants of the premises while a proper search is conducted. The government did not dispute that Perez Cruz was seized for purposes of the Fourth Amendment when he was detained in his workplace, frisked, and handcuffed, or that the ICE agents did so without individualized reasonable suspicion. The Court explained that the Fourth Amendment requires that “a search or seizure of a person must be supported by probable cause particularized with respect to that person.” Ybarra v. Illinois, 444 U.S. 85, 91 (1979). While the parties and the Court agreed that the underlying search warrant here was of a type that would support a Summers detention, the remaining question was whether Perez Cruz’s seizure was justified as a valid Summers detention.

The Ninth Circuit concluded that Summers’ categorical authority to detain incident to the execution of a search warrant did not extend to a preexisting plan “whose central purpose is to detain, interrogate, and arrest a large number of individuals without individualized reasonable suspicion.” In concluding that the purpose behind the agents’ conduct was relevant here, the Court explained that the purpose behind a search or seizure was “often relevant when suspicionless intrusions pursuant to a general scheme [(such as inventory and administrative searches)] were at issue.”[12] The Ninth Circuit also explained that there was no meaningful difference between the categorical authority to detain without reasonable suspicion under Summers and the suspicionless intrusions for which the Supreme Court has held that a valid purpose is a prerequisite.

The Court further determined that the administrative search was invalid due to an impermissible purpose, because ICE planning documents showed that the main goal of the raid was not to find documents but to arrest undocumented workers.

Accordingly, the Ninth Circuit concluded that Perez Cruz’s seizure was not a permissible Summers detention and that the ICE agents therefore violated 8 C.F.R. section 287.8(b)(2) because they did not have “reasonable suspicion, based on specific articulable facts” that Cruz was, or was attempting to be, engaged in an offense against the United States or was an alien illegally in the United States in order to briefly detain him for questioning. Noting that prejudice may be presumed where—as here—compliance with a regulation is mandated by the Constitution, the Court presumed prejudice and concluded that Perez Cruz was entitled to suppression of the evidence in question.

The Court also concluded that the proceedings should be terminated without prejudice because the government had not offered any evidence of Perez Cruz’s alienage beyond the Form I-213 and his birth certificate, which were fruits of the regulatory violation. The Court accordingly granted Perez Cruz’s petition for review and remanded to the BIA with instructions to dismisshis removal proceedings without prejudice.

  • Because jury would not have reached a different result had the court excluded challenged statements under Miranda v. Arizona, admission was harmless.

People v. Caro, 7 Cal. 5th 463 (2019)

Facts: Defendant Socorro Susan Caro and her husband had four young boys. In November 1999, three of four children were shot to death in their Camarillo home. When officers found Caro in the master bedroom, she was surrounded by several pools of blood and expended shell casings. Caro was airlifted to a hospital.

The day after the shootings, Caro was in an intensive care unit (ICU) room after she had surgery. Detective Cheryl Wade, in plain clothes, went to Caro’s room and recorded the entire two-and-a-half to three-hour visit, placing the tape recorder on Caro’s bed or on a machine near the bed. Hospital staff removed Caro’s breathing tube. Wade began sitting with Caro and stayed with her, or near her room, for two and a half to three hours before providing Caro Miranda v. Arizona[13] warnings. Another detective in plain clothes and a psychologist from the District Attorney’s office were also present. Wade spent much of the recorded period attending to Caro, making her more comfortable, and telling nurses when Caro wanted medication or was in pain. Along with this activity, Detective Wade intermittently asked Caro about what happened. Caro’s pain apparently eased somewhat when a nurse gave Caro a codeine injection. Before the nurse gave the injection, she asked if Wade was “getting much” from Caro and checked in with Wade to make sure she would not “mess up [Wade’s] thing” by giving the injection. Wade replied that the nurse should do “what [the nurse] would normally do.”

In this environment, Caro made two statements that were included at trial, both made before receiving Miranda warnings from Wade. One was made at some point in the 90 minutes before the codeine injection where Caro stated that she “might have fallen down the stairs,” but also suggested she did not remember. Caro’s second statement was made about 45 minutes after the codeine injection when Detective Wade heard Caro say she was bruised by “wrestling with a boy.” After the second statement, Detective Wade continued to ask Caro questions about what happened, but Caro indicated that she did not remember, and asked whether her boys and Xavier were there. Wade told Caro that her boys were hurt and asked if she knew how they were hurt. Caro asked if it was “something serious.” Wade told Caro that she was investigating the death of Caro’s boys, and that Caro was suspected of hurting them. Wade then gave Caro Miranda warnings, and Caro invoked her right to counsel.

Caro was charged with three counts of murder (Pen. Code section 187 (a)) while personally using a firearm (Section 12022.53 (d)), and a multiple-murder special circumstance (Section 190.2 (a)(3)). The evidence at trial showed that Detective Wade failed to give Caro Miranda warnings before these two statements. However, the evidence also demonstrated that Wade did not threaten or make promises to Caro. The trial court also found that Wade did not interfere with Caro’s medical treatment and did not do “anything to overcome the will of” Caro. The trial court found that Caro was not in custody for purposes of Miranda during the Wade interview, and that Wade did not coerce an involuntary statement from Caro.

Many additional evidentiary and other issues were at issue at trial. The jury found Caro guilty of three counts of first degree murder, found true the firearm enhancements true, as well as the multiple-murder special circumstance. In December 2001, the jury returned a verdict of death. An automatic appeal followed.

Held: The California Supreme Court held that even if the police interview in the hospital room violated the Miranda rule under the Fifth Amendment, U.S. Const., 5th Amend., or even if her statements were involuntary, the error was harmless because the statements had little evidentiary value.

Caro argued on appeal that the two statements she made to Detective Wade should have been excluded from trial because she did not receive the required Miranda warnings and the statements were involuntary. The Court explained that the police have an obligation to deliver Miranda warnings before they begin custodial interrogation of a suspect. The warning is intended to protect the suspect’s privilege against self-incrimination, which is jeopardized by the inherently coercive nature of police custodial questioning. (Miranda, 384 U.S. at pp. 478–479.) The key question is whether, under all of the objective circumstances, a reasonable person in the suspect’s position would have felt free to terminate the interrogation. (People v. Leonard (2007) 40 Cal.4th 1370, 1400.) But even if a person’s freedom ofmovement has been curtailed, “whether the relevant environment presents the same inherently coercive pressures as the type of station house questioning at issue in Miranda.” (Howes v. Fields (2012) 565 U.S. 499, 509) remains a relevant issue.

The Court explained that “[a]ll objective circumstances of the interrogation are relevant to this inquiry, including the site of the interrogation, the length and form of questioning, and whether the officers have conveyed to the subject that their investigation has focused on him or her.” To judge whether statements are inadmissible as the productof “coercive police conduct” (People v. Williams (2010) 49 Cal.4th 405, 437), courts consider the totality of the circumstances to determine whether the defendant’s will has been overborne and his capacity for self-determination critically impaired by coercion. (Id. at p. 436.) The presence of police coercion is a necessary, but not always sufficient, element. (Ibid.) Courts also consider other factors, such as the location of the interrogation, the interrogation’s continuity, in addition to the defendant’s maturity, education, physical condition, and mental health. (Ibid.)

The Court explained here that when Detective Wade delayed giving Caro Miranda warnings, the detective “tread on perilous ground.” The Court noted that certainexchanges between Wade and the staff, and between Wade and Caro herself, may have suggested to a reasonable person that the police exercised some authority over whether Caro could terminate the interview. The Court noted there was a constant presence of one or more law enforcement officers and a suggestion of two staff members that they would not, or could not, interfere with the interview. Caro was also isolated from friends and family, and confined in the hospital to her ICU bed. Such circumstances, said the Court, increase the risk of coercion.

Nonetheless, the Court explained it did not need to resolve the question of whether the extent of Wade’s engagement with Caro was sufficient to violate Caro’s constitutional rights. The Court explained that even assuming the interview violated Miranda or the statements were involuntary, the admission of the statements was harmless beyond a reasonable doubt because, against the backdrop of other compelling forensic evidence, these statements did not have high value in the overall evidentiary calculus. Expert testimony about the bloody clothes Caro wore when she was found provided “a wealth of incriminating information.” Moreover, there was blood evidence in different locations taken from within the Caro house, expert testimony about Caro’s own gunshot wound, and the timing of the sequence of events that added to the full evidentiary picture weighing against Caro. The Supreme Court concluded that it was beyond a reasonable doubt that the jury would not have reached a different result had the court excluded the challenged statements. The California Supreme Court accordingly affirmed Caro’s convictions.

  • Unlawful arrest alone is not legally sufficient for conviction under Penal Code section 149.

People v. Perry, 2019 Cal. App. LEXIS 555 (5th Dist. June 18, 2019)

Facts: A father (“Father”) and mother (“Mother”) had engaged in custody disputes over their 15-year-old daughter throughout the entirety of their relationship. A mediated custody order signed by both parents provided that Father and Mother would split custody of Daughter on alternating weekends. The order also directed Father and Mother to contact the local police or sheriff for problems with enforcement of the order and declared, “Law enforcement personnel are mandated to assist.”

Father had custody one weekend. After the end of the weekend custody period, Father and Mother argued over text message about the timing of Mother’s pickup of their daughter, with Father ultimately telling Mother that he would text Mother to get their daughter when the daughter woke up from her daytime slumber. Mother went to the Livingston Police Department and spoke with Officer Michael Baker, who radioed then-Officer Tyson Perry for assistance because Perry was the officer taking calls for service at that time. Officers Baker and Perry reviewed the custody order, found it was Mother’s custody time, and came up with a plan for Perry to do a civil exchange of the daughter.

Mother, Officer Perry, and, later, Officer Baker went to Father’s residence. According to an audio recording of the verbal exchange that Father made, later played for the jury, Officer Perry informed Father that he was in violation of a custody order and should get his daughter. Father did not comply with Officer Perry’s directives during the encounter. Father was handcuffed and arrested. Officer Perry used force against Father during the encounter, though the parties disputed what happened. Father claimed that after he was handcuffed, Officer Perry squeezed his wrists painfully in the handcuffs, pulled on the cuffs which spun Father around, threw Father to the front porch’s concrete surface on his face and body, and then “smashed” Father’s head onto the concrete a second time. Officers Perry and Baker testified that Perry tried to adjust the handcuff key to loosen them but Father was moving too much to do so, and that Father seemed like he was trying to escape after he spun around before he was taken to the ground.

Officer Perry was later charged with assault by a public officer under Penal Code section 149,[14] among other charges. A jury found him guilty. Officer Perry was given a suspended sentence and placed on probation for three years with, among other conditions, a 90-day commitment to county jail. Perry appealed, arguing that the jury instructions and prosecutor’s argument encouraged conviction under the legally erroneous and factually unsupported theory that he violated Section 149 solely on the basis that he did not have probable cause to arrest Father.

Held: The California Fifth District Court of Appeal discussed the jury instructions. The jury was presented with two theories upon which it could find Perry guilty of assault by a public officer. The first theory focused on the legality of Perry’s contact with Father: the prosecutor argued Perry was not empowered to use any force against Father because the visit to Father’s home to effectuate a custody transfer and the subsequent arrest were unlawful. The second theory focused on the reasonableness of the force utilized: the prosecutor argued the force used in handcuffing Father, taking him to the ground, and hitting his head on the cement was unreasonable and unnecessary.

During the pendency of Perry’s appeal, the First District Court of Appeal held in People v. Lewelling (2017) 16 Cal.App.5th 276 that a wrongful arrest, standing alone, does not provide a basis for conviction under Section 149. Perry thereafter pointed to Lewelling in arguing that the first theory was legally invalid. The parties on appeal subsequently agreed that Perry had lawful authority to enforce the custody order, and the People did not contest that Perry had lawful authority to arrest Father for violating the custody order. Thus, the Court was left to decide whether permitting the case to go to the jury on a theory that he lacked such authority was in error.

The Court first reviewed federal and state law pertaining to uses of force by law enforcement. Courts have reached a “seeming consensus,” said the Fifth District, that “without lawful necessity” means “‘more force than was necessary under the circumstances.’” (People v. Mehserle (2012) 206 Cal.App.4th 1125, 1140; Lewelling, supra, 16 Cal.App.5th at p. 297.) The Court explained that this language was “effectively shorthand” for the Fourth Amendment excessive force standard, and thus concluded that Section 149 is governed by the same standards as applied under the Fourth Amendment.

The Court agreed with Lewelling in concluding that an unlawful arrest or detention alone is not a legally valid basis for conviction under section 149, explaining that the critical matter under Section 149 is the reasonable necessity for the degree of force used. Section 149 applies when an officer “without lawful necessity, assault or beats any person.” The Court found that the plain language of the provision required that the assault or battery lack lawful necessity, not the arrest or detention.

Turning to the facts here, the Court explained that “when a jury is presented with alternate theories of guilt, one of which is contrary to law, reversal is required unless there is a basis to conclude the verdict actually was based on a valid ground.”[15] “In other words, we presume the error affected the judgment.”[16] The Court concluded that the prosecutor’s arguments and the court’s instructions erroneously invited the jury to find Perry violated Section 149 by unlawfully arresting Father.

The Fifth District Court of Appeal found no factual basis from the record to conclude the jury necessarily rested its verdict on a valid theory of guilt. The Court therefore reversed the judgment. However, the Court also found substantial evidence existed to support conviction on a valid theory, i.e., the second theory that Perry used more force than would have appeared necessary to a reasonable officer on the scene. The Court thus concluded retrial was permitted and accordingly remanded or further proceedings.

  • Surveillance videos can create valid probable cause for a warrantless arrest under Penal Code section 1538.5(a)(1)(A).

People v. Alexander, 2019 Cal. App. LEXIS 580 (1st Dist. June 25, 2019)

Facts: During his investigation of a series of ten robberies in the San Francisco area in August and September 2012, San Francisco Police Sergeant Thomas Maguire reviewed police reports of the crimes and surveillance video of eight of them. He viewed and compared the videos several times. The suspects were two African-American males, one taller and thinner than the other.

On September 16, 2012, Sergeant Maguire heard a broadcast reporting a robbery at a restaurant in downtown San Francisco. The suspects were described as two African-American men, one taller and one shorter. Maguire thought they might be the perpetrators in the robberies he was investigating, and so went to where he thought the robbers might be trying to sell the cell phones stolen from the restaurant robbery victim. Maguire testified that he observed two men crossing the street about 12 feet in front of him who he “immediately recognized” as the suspects in the robberies he had been investigating. Both were African-American, one was taller and thinner than the other, shoes and clothing matched those he saw in the videos. The shorter man’s height, weight, build, face, and demeanor also resembled one of the suspects. The taller man’s facial features (including facial hair) and confident demeanor were similar to a suspect in the videos. Maguire identified Bryan Alexander as the shorter man and Ray Farr as the taller man he observed. He subsequently apprehended and arrested Alexander and Farr.

Farr and Alexander were charged in a first amended information with multiple robbery and burglary offenses, among others. Prior to the filing of the amended information, Alexander and Farr moved under Penal Code section 1538.5 to suppress evidence discovered pursuant to their warrantless arrest. They argued the surveillance evidence was hearsay and not sufficient to support probable cause. Sergeant Maguire testified about his investigation and the events of the arrest at the hearing on the motion to suppress. The trial court denied the motion.

Alexander and Farr subsequently pled guilty to a number of the offenses and were sentenced to prison. Both Alexander and Farr appealed, arguing that the trial court erred in denying their motion to suppress evidence discovered pursuant to their warrantless arrest.

Held: The California First District Court of Appeal explained that the primary issue on appeal was whether the arresting officer’s testimony regarding the robbery surveillance videos was admissible and sufficient to establish probable cause for the warrantless arrest of appellants.

The Court explained initially that the Fourth Amendment to the United States Constitution protects “[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures … .” Under Section 1538.5 (a)(1)(A), a defendant may move to suppress evidence on the ground that a “search or seizure without a warrant was unreasonable.” “‘[A] warrantless arrest by a law [enforcement] officer isreasonable under the Fourth Amendment where there is probable cause to believe that a criminal offense has been or is being committed.’” (People v. Thompson (2006) 38 Cal.4th 811, 817.)

Appellants argued that Sergeant Maguire’s assertions that the surveillance videos he viewed corresponded to the robberies under investigation was based on inadmissible hearsay, but the Court explained that “[i]t is settled … that reasonable cause to justify an arrest may consist of information obtained from others and is not limited to evidence that would be admissible at the trial on the issue of guilt.” (People v. Boyles, 45 Cal.2d 652, 656, citing Brinegar v. United States (1949) 338 U.S. 160, 171–176.) Regardless, Sergeant Maguire’s testimony was not subject to exclusion under the hearsay rule because it was offered only to show the information he relied on in deciding to arrest appellants, whether or not his testimony was extrajudicial. The Court explained that Sergeant Maguire’s testimony about how he obtained the surveillance videos and what he observed in the videos was not admitted to prove the videos depicted the robberies or to prove the content of the videos. Instead, the testimony was admitted to inform the trial court of the basis for Maguire’s belief he had probable cause to arrest the defendants.

The Court then concluded that Sergeant Maguire’s testimony established probable cause to arrest Alexander and Farr. The Court, like the trial court before, compared the surveillance stills to photos taken the day of the arrest, and found Farr and Alexander as reasonably recognizable, and based on more characteristics than just age and race. Moreover, the Court explained that the fact that Sergeant Maguire encountered the Farr and Alexander together and that Alexander was wearing the same jacket and shoes he wore in some of the videos substantially enhanced the probable accuracy of the identification. Taken together, the Court found that the information Sergeant Maguire knew was sufficient to support a determination of probable cause.

The Court explained that because the surveillance videos viewed by the officer bore indicia of reliability and because those videos provided a sufficient basis for him to recognize defendants, the warrantless arrest of defendants was objectively reasonable under the Fourth Amendment.

Accordingly, the First District affirmed the trial court’s judgment entirely as to Farr, and affirmed as to all respects as to Alexander, except for an enhancement issue, for which the Court remanded.

  • When a driver is unconscious and therefore cannot be given a breath test, the exigent-circumstances exception almost always permits a blood test without a warrant.

Mitchell v. Wisconsin, 139 S. Ct. 2525 (2019)

Facts: In May 2013, Sheboygan Police Department Officer Alexander Jaeger received a report that an apparently very drunk Gerald Mitchell had gotten into a van and then driven away. Officer Jaeger soon found Mitchell stumbling on foot near a lake. Mitchell’s speech was slurred and he could barely stand. Officer Jaeger thought a field sobriety test could be dangerous to Mitchell in his condition, so Officer Jaeger gave Mitchell a preliminary breath test. The breath test registered a blood alcohol concentration (BAC) level of 0.24%, which is three times Wisconsin’s legal limit for driving. Officer Jaeger arrested Mitchell for operating a vehicle while intoxicated. Following a standard practice, Officer Jaeger drove him to a police station for a more reliable breath test using evidence-grade equipment.

By the time they arrived at the station, however, Mitchell was too lethargic even for the breath test. Jaeger drove Mitchell to a nearby hospital for a blood test, but Mitchell lost consciousness on the way there and had to be wheeled in. Despite Mitchell’s unconscious state, Officer Jaeger read aloud to Mitchell the standard statement giving drivers a chance to refuse BAC testing. Hearing no response, Jaeger asked hospital staff to draw a blood sample, under a state law (Wis. Stat. section 343.305 (2016)) that presumes that a person incapable of withdrawing implied consent to BAC testing has not done so. At about 90 minutes after his arrest, Mitchell’s BAC was registered at 0.222%, well above the legal limit even then.

Mitchell was charged with violating two drunk-driving laws. He moved to suppress the results of the blood test on the ground that it violated his Fourth Amendment right against unreasonable searches because it was conducted without a warrant. The trial court denied Mitchell’s motion, and a jury found Mitchell guilty of the charged offenses. An intermediate appellate court certified two questions to the Wisconsin Supreme Court: first, whether compliance with the State’s implied-consent law was sufficient to show that Mitchell’s test was consistent with the Fourth Amendment and, second, whether a warrantless blood draw from an unconscious person violates the Fourth Amendment. The Wisconsin Supreme Court affirmed the lawfulness of Mitchell’s blood test. Mitchell petitioned for a writ of certiorari.


The United States Supreme Court granted certiorari to decide whether a statute authorizing a blood draw from an unconscious motorist provides an exception to the Fourth Amendment warrant requirement.

The Court explained that all States have laws that prohibit motorists from driving with a BAC that exceeds a specified level, and all States have passed corresponding implied-consent laws. Under implied-consent laws, in exchange for the privilege of using the public roads, drivers are required to submit to BAC testing when there is sufficient reason to believe they are violating the State’s drunk-driving laws. Under Wisconsin’s Section 343.305, drivers are presumed to have consented to breath or bloodtests if an officer has reason to believe they have committed one of several drug- or alcohol-related offenses. An officer intending to administer a BAC test must read aloud a statement declaring the intent to conduct the test and informing drivers of their options and the implications of their choice. A test will not be administered if a driver refuses the test and thereby “withdraws” his statutorily presumed consent. However, “[a] person who is unconscious or otherwise not capable of withdrawing consent is presumed not to have withdrawn consent.” (Section 343.305(3)(b).)

The Court explained that a blood draw is a search of the person for Fourth Amendment purposes, and that a warrant is normally required for a lawful search. However, the Supreme Court has also “made it clear that there are exceptions to the warrant requirement.” Illinois v. McArthur, 531 U. S. 326, 330 (2001). The “exigent circumstances” exception allows warrantless searches “to prevent the imminent destruction of evidence.” Missouri v. McNeely, 569 U. S. 141, 149 (2013). More specifically, a warrantless search is permitted under the exigent-circumstances exception when “‘there is compelling need for official action and no time to secure a warrant.’” McNeely, supra, at 149, (quoting Michigan v. Tyler, 436 U. S. 499, 509 (1978)). The Court noted that a standard evidence-grade breath test is typically conducted after a motorist is transported to a police station or a related facility where such equipment is kept. The Court also noted that Mitchell’s stupor and eventual unconsciousness denied officials a reasonable opportunity to administer an evidence-grade breath test. Within this context, the Court considered (1) whether the need for a blood test is compelling, and, if so, (2) whether such “compelling need” justifies a warrantless search because there is “no time to secure a warrant.” If both elements were met in the unconscious drunk driver context, the exigent-circumstances exception applies.

The Court first determined that BAC testing is a “compelling need.” The Court explained that courts have long understood that highway safety is a vital, “compelling,” and “paramount” public interest,[17] adding that domestic alcohol-related accidents between 1982 and 2016 resulted in between 10,000 and 20,000 deaths annually. The Court added that with regard to promoting highway safety, state and federal legislators have long believed, backed by persuasive data, that legal limits on a driver’s BAC have a major impact in dramatically reducing highway deaths and injuries. The Court also explained that enforcing legal BAC limits requires a test accurate enough to hold up in court,[18] and “[e]xtraction of blood samples for testing is a highly effective means of” measuring “the influence of alcohol.” Schmerber v. California, 384 U. S. 757, 771 (1966). Moreover, because alcohol naturally dissipates “by the minute”[19] from the bloodstream, enforcement of BAC testing requires prompt testing to properly and accurately obtain BAC evidence. Lastly, when a breath test is unavailable (as in the case of unconscious drivers who cannot exhale into a breathalyzer) to promote those interests, “a blood draw becomes necessary.” McNeely, 569 U. S., at 170 (opinion of Roberts, C. J.). The Court therefore found that there clearly is a “compelling need” for a blood test of drunk-driving suspects whose condition deprives officials of a reasonable opportunity to conduct a breath test.

The Supreme Court then turned to the remaining exigency element, i.e. whether the compelling need justifies a warrantless search because there is “no time to secure a warrant.” In Schmerber v. California, the dissipation of BAC justified a blood test of a drunk driver whose accident gave police other pressing duties, because the additional delay that would have been caused by obtaining a warrant application would have threatened the destruction of evidence. Thus, under Schmerber, exigency exists when (1) BAC evidence is dissipating and (2) some extra factor creates pressing health, safety, or law enforcement needs that would take priority over a warrantapplication.

The Court observed that in Schmerber,the car accident was the extra factor. For the issue here, the Court explained that the drunk driver’s unconsciousness not only creates pressing needs, but also is itself a medical emergency, requiring urgent medical care at a hospital or such facility. Immediate medical treatment could delay or distort a blood draw conducted later after the securing of a warrant, and so reduce its evidentiary value. In such a situation, as in Schmerber, an officer could “reasonably have believed that he was confronted with an emergency.” 384 U. S., at 771.

The Court also explained that in many unconscious-driver cases, the exigency would be “especially acute” because a driver drunk enough to lose consciousness would probably crash, giving officers many additional urgent tasks distinct from securing medical care for the suspect—tasks that would require them to put off applying for a warrant. Forcing police to put off other urgent tasks for even a relatively short period of time, the Court explained, could have tragic collateral costs. The Court thus found that both elements for establishing exigency were satisfied, and exigency exists in the context of an unconscious drunk driver. Thus, the Court found that Schmerber controls with unconscious drunk-driving suspects. The Court concluded therefore that a warrantless blood draw is lawful on suspects in this condition, and was essential for achieving the goals of BAC testing.

Accordingly, the United States Supreme Court vacated the judgment of the Wisconsin Supreme Court. The Court also remanded to give Mitchell the chance to show that his was an unusual case, in which his blood would not have been drawn had police not been seeking BAC information and police could not have reasonably judged that a warrant application would interfere with other pressing needs or duties.


  1. Title VII’s charge-filing requirement is not a jurisdictional prescription and must be timely asserted by a defendant.

Fort Bend Cnty. v. Davis, 139 S. Ct. 1843 (2019)

Facts: Title VII of the Civil Rights Act of 1964 forbids discrimination in employment on the basis of race, color, religion, sex, or national origin. 42 U.S.C. section 2000e-2(a)(1). Before commencing a Title VII action in court, a complainant must first file a charge with the Equal Employment Opportunity Commission (“EEOC”) Section 2000e‒5(e)(1), (f)(1). Unlike other agencies like the National Labor Relations Board, the EEOC does not have authority to adjudicate the claim. Title VII directs the EEOC, after receiving the filed charge, to notify the employer and to investigate the allegations. Section 2000e‒5(b). If the EEOC finds “reasonable cause” suggesting the charge is valid, the EEOC may use “informal methods of … conciliation” to try to resolve the alleged unlawful employment practice. Ibid.

When informal methods do not resolve the issue, the EEOC has first option to bring a civil action against the employer in court. However, if the EEOC chooses not to sue, and whether or not the EEOC otherwise acts on the charge, a complainant is entitled to a “right-to-sue” notice 180 days after the charge is filed. Section 2000e‒5(f)(1); 29 CFR section1601.28. Within 90 days of receipt of the right-to-sue notice, the complainant may commence a civil action against the employer. Section 2000e‒5(f)(1).

Lois M. Davis was an information technology employee for Fort Bend County (“County”) in Texas. In 2010, she informed the County’s human resources department that she was being sexually harassed by the Director of Information Technology. Davis’ supervisor was well acquainted with this director. After an internal investigation, the director resigned. Thereafter, Davis alleged, her supervisor began retaliating against her. Davis filed a charge against the County, alleging sexual harassment and retaliation for reporting the harassment by the director.

While her EEOC charge was pending, the supervisor ordered Davis to work on an upcoming Sunday. Davis replied that she had a church commitment, but offered to arrange for another employee to work at that time in her stead. The supervisor said that if Davis did not work herself on Sunday, she would be fired. Davis went to church on the Sunday, and the County fired her. Davis tried to supplement her EEOC charge by handwriting “religion” in the “Employment Harms or Actions” area on a form called an “intake questionnaire,” but she did not amend the formal charge document. After receiving a right-to-sue letter, Davis in January 2012 commenced suit in Federal District Court, alleging discrimination on the basis of religion and retaliation for reporting sexual harassment.

After years of litigation, only the religion-based discrimination claim remained in the case. Fort Bend then asserted for the first time that the District Court lacked jurisdiction to adjudicate Davis’ case because her EEOC charge did not state a religion-based discrimination claim. The District Court granted the County’s motion to dismiss Davis’ suit. On appeal from the dismissal, the Fifth Circuit Court of Appeals reversed. Title VII’s charge-filing requirement, the Fifth Circuit held, is not jurisdictional; instead, the requirement is a prudential prerequisite to suit, forfeited in Davis’ case because the County had waited too long to raise the objection.

The Supreme Court granted certiorari to resolve the question of whether Title VII’s charge-filing requirement is a “jurisdictional” requirement that can be raised at any stage of a proceeding, or instead is a procedural prescription subject to forfeiture if asserted belatedly.

Held: The United States Supreme Court held that Title VII’s charge-filing requirement is not jurisdictional, but rather a nonjurisdictional claim-processing rule. The Court explained that the word “jurisdictional” is a term that is generally reserved to describe the classes of cases a court may entertain (subject-matter jurisdiction) or the persons over whom the court may exercise adjudicatory authority (personal jurisdiction). Kontrick v. Ryan, 540 U. S. 443, 455. Jurisdictional prescriptions may also become established from incorporation into jurisdictional provisions of federal statutes, or when “a long line of [Supreme] Cour[t] decisions left undisturbed by Congress” have attached a jurisdictional label to the prescription.[20] The Court observed that, unlike most arguments, “challenges to subject-matter jurisdiction may be raised by the defendant ‘at any point in the litigation,’ and courts must consider them sua sponte.”[21] Because such jurisdictional objections must be considered when raised at any point, their impacts can be severe. “Tardy jurisdictional objections” waste court resources and “disturbingly disarm litigants.”[22]

Supreme Court cases have therefore distinguished jurisdictional prescriptions from nonjurisdictional claim-processing rules, which “‘seek to promote the orderly progress of litigation by requiring that the parties take certain procedural steps at certain specified times.’”[23]

A claim-processing rule may be “mandatory” in the sense that a court must enforce the rule if timely raised. Eberhart v. United States, 546 U. S. 12, 19 (2005) (per curiam). The Court listed several examples of mandatory claim-processing rules that had been characterized as nonjurisdictional, and observed that it was left to Congress to clearly designate a prescription as jurisdictional, “[b]ut when Congress does not rank a [prescription] as jurisdictional, courts should treat the restriction as nonjurisdictional in character.” (Arbaugh v. Y & H Corp., 546 U. S. 500, 515-516 (2006) (footnote and citation omitted).) The Court explained that, unlike a challenge to a jurisdictional prescription, an objection based on a mandatory claim-processing rule, is ordinarily forfeited “if the party asserting the rule waits too long to raise the point.” Eberhart, 546 U.S., at 15.

The Supreme Court observed that Title VII’s charge-filing requirement is stated in provisions (42 U.S.C. section 2000e-5(e)(1) and (f)(1)) separate from Title VII’s statutory provisions empowering federal courts to exercise jurisdiction over Title VII actions (42 U.S.C. section 2000e-5(f)(3)). The Court noted that charge-filing provisions require complainants to submit information to the EEOC and to wait a specified period before commencing a civil action. The provisions thus “speak to . . . a party’s procedural obligations.” EPA v. EME Homer City Generation, L. P., 572 U. S. 489, 512 (2014). The Court also noted that the provisions do not refer to a court’s authority or jurisdiction matters.

The Court, therefore, found the charge-filing instruction similar to prescriptions the Court had previously designated as nonjurisdictional, such as instructions to follow copyright registration procedures before suing for infringement,[24] or Title VII’s time limit instruction for filing a charge with the EEOC.[25] Noting that “a rule may be mandatory without being jurisdictional,” the Court concluded that Title VII’s charge-filing requirement is a nonjurisdictional processing rule, not a jurisdictional prescription delineating the adjudicatory authority ofcourts. The County’s charge-filing requirement was thus forfeited in Davis’ case because the County had waited too long to raise the objection. Accordingly, the United States Supreme Court affirmed.

For a more detailed discussion of this case, please see Client Alert Vol. 34, No. 24, available at www.jones-mayer.com.

  • Police Department may Properly Consider Officer’s Pre-probationary Conduct in Rescinding Officer’s Probationary Promotion.

Conger v. Cnty. of L.A., 36 Cal. App. 5th 262 (2nd Dist. 2019)

Facts: In November 2015, the Los Angeles County (“County”) Sheriff’s Department (the “Department”) promoted Sergeant Thomas L. Conger to the rank of lieutenant, a position subject to a six-month probation period. In mid-April 2016, the Department told Conger he was being investigated for a use of force incident that occurred several months before Conger’s probationary promotion. Later in April 2016, the Department relieved Conger of duty, placed him on administrative leave, and served him a letter extending his probationary period indefinitely due to his relieved status.

In May 2016, the Department notified Conger by letter that he was “released from [his] probationary position of Lieutenant” due to his “failure to adhere to Department policies regarding a use of force and/or reporting the use of force” and cited an Internal Affairs Investigation. The Department gave Conger a report on the matter which listed the evaluation period as November 1, 2015, to May 20, 2016. The Department also provided a “Performance Evaluation” that described a May 21, 2015 “use of force incident” in which Conger and two deputy sheriffs moved a resisting inmate from one cell into an adjacent cell. The evaluation stated that Conger failed to report a use of force by himself and two of his subordinates; failed to document the incident and did not direct his subordinates who used or witnessed force to write the required memorandum; and failed to adhere to policy by completing the required use of force report. The evaluation “recommend[ed] that Lieutenant Conger be released from his probationary lieutenant position and be demoted to his previous rank of sergeant.”

Conger appealed to the County’s human resources office, arguing that he should not be released from a probationary position based on events that occurred before the probationary period began. The County denied Conger’s appeal. Conger’s request for a hearing to the County’s civil service commission was also denied.

Conger then filed a petition for a writ of mandate in the trial court, arguing that the Department’s rescission based on alleged misconduct that happened before he was promoted to his probationary position constituted a “denial of promotion on grounds other than merit” under Government Code section 3304(b), a provision of the Public Safety Officers Procedural Bill of Rights Act (“POBRA”) (Government Code section 3300 et seq.). Conger argued he was thus entitled to an administrative appeal hearing under these provisions.

The trial court denied Conger’s petition, concluding that the Department could deny Conger a promotion based on merit factors arising prior to the probationary period because Section 3304(b)’s time frame was not limited to the duration of the probation itself. The trial court also found the Department’s decision to rescind the promotion based on Conger’s failure to report a use of force was merit based. Conger appealed.

Held: The California Second District Court of Appeal held that the Department’s decision to deny Conger a promotion was merit based. The Court further concluded that the officer had failed to show that the written evaluation detailing his unreported use of force would impact his future career adversely except for the loss of his probationary position.

Reviewing the statutory provisions at issue, the California Second District Court of Appeal explained that POBRA “codif[ies] ‘a list of basic rights and protections which must be afforded all peace officers … by the public entities [that] employ them.’”[26]

Section 3304(b) declares that “[n]o punitive action, nor denial of promotion on grounds other than merit, shall be undertaken by any public agency against any public safety officer who has successfully completed the probationary period that may be required by his or her employing agency without providing the public safety officer with an opportunity for administrative appeal.” “[P]unitive action” is defined as “any action that may lead to dismissal, demotion, suspension, reduction in salary, written reprimand, or transfer for purposes of punishment.” (Section 3303.)

The Court observed that an employer may deny a promotion without triggering the right to appeal under Section 3304(b) so long as the denial is based on merit. On the other hand, a “demotion” – one of the listed punitive actions under Section 3303 – triggers the administrative appeal right regardless of whether it was based on merit or nonmerit grounds. (See White, supra, 31 Cal.3d at p. 683 [under POBRA, demotion is “per se disciplinary in nature”].)

The Second District noted that Guinn v. County of San Bernardino[27] held that “returning a permanent employee to his or her previous positionas [a] result of failure to perform adequately while on promotional probation” constituted a nonpunitive denial of promotion, not a punitive demotion, even though there was an associated loss of rank and pay. (Guinn, supra, 184 Cal.App.4th at pp. 946–947.) Guinn relied on Swift v. County of Placer,[28] which considered a similar “‘rejection during probation’” situation in the context of the State Civil Service Act (Government Code section 18500 et seq.).[29] Swift observed that “‘rejection during probation’” was not listed as a “‘punitive action’” under Section 3303 or “the comparable provision of the State Civil Service Act,” which “strongly suggest[ed]” that rejection during probation was not punitive for purposes of triggering the administrative appeal right under Section 3304 (b). (Swift, supra, 153 Cal.App.3d at pp. 216–217 & fn. 7.) Consequently, Swift held that an officer dismissed during an initial probationary period had no right to an administrative appeal. Guinn determined that Swift’s reasoning applied in the same manner to officers who were returned to their previous rank during probationary periods associated with promotions. (Guinn, supra, 184 Cal.App.4th at p. 946.)

The Second District determined that Guinn’s distinction between demotion and denial of promotion did not depend on when the conduct underlying the adverse personnel action occurred, as Conger argued in his attempt to distinguish Guinn. The Court explained that the critical factor, common to both Guinn and the instant case, was that the adverse action took place during a period in which the promotion was not yet permanent, and the employer was still assessing whether the officer deserved the higher position. The Second District noted that Conger had not completed his probationary period at the time the Department returned him to his previous rank, because the Department had extended the probationary period indefinitely pending investigation into the alleged unreported use of force.

The Court of Appeal next considered whether Conger’s denial of promotion was based “on grounds other than merit,” as per Section 3304(b). Acknowledging that POBRA did not define this phrase, the Court explained that “at minimum,” factors constituting merit include those substantially related to successful performance of the position’s duties. The Court added that this view was in accordance with California’s constitutional merit principle, under which candidates for civil service positions are evaluated based on education, training and experience rather than factors unrelated to the job such as political favoritism.[30]

Here, the Court noted that Chief Warren Asmus, the Department official who made the decision to return Conger to the rank of sergeant, explained, “Lieutenants hold a high level supervisory position in the Department.” Successful performance in a supervisory position, the Court explained, requires the ability to comply with department procedures and to ensure that subordinates follow those procedures. The Court concluded that Conger did not demonstrate competence as a supervisor when he failed to report a use of force per Department policy and failed to direct his subordinates to do so in the May 2015 incident. The Court also observed that nothing in Section 3304(b) suggested that the term “merits” must be restricted to the merits of an officer’s performance during a probationary period, adding “an officer’s past job performance speaks to his or her ‘merit’ as much as his or her performance on probation.”

Thus, the Second District Court of Appeal concluded that the Department’s decision was a “denial of promotion” under Section 3304(b), not a demotion, and that denial was on merit-based grounds. Accordingly, the Second District affirmed.

For a more detailed discussion of this case, please see Client Alert Vol. 34, No. 25, available at www.jones-mayer.com.

  • Government Code section 21198 prevents CalPERS from reinstating an involuntarily terminated person to a different classification without any connection to the underlying dispute.

Byrd v. State Pers. Bd., 2019 Cal. App. LEXIS 587 (4th Dist. June 26, 2019)

Facts: After fourteen years as an employee, Clare Byrd received notice in September 2014 that she was to be dismissed from her role as an Administrative Analyst/Specialist at San Diego State University (“SDSU”), part of the California State University system (“CSU”). Byrd appealed to the State Personnel Board (“SPB”) challenging her dismissal. An administrative hearing resulted in a settlement agreement between CSU and Byrd. SPB initially approved the settlement.

Among other provisions, the settlement agreement directed that Byrd would be reinstated to a classification with a substantially higher salary, which she had never held. The settlement also directed that she would receive compensation at the higher salary during the period that CSU, with her assistance, would apply for medical retirement benefits on her behalf to the California Public Employees’ Retirement System (“CalPERS”). After a review of SPB’s approval of the settlement, however, CalPERS informed the parties that the settlement was not compliant with retirement law. In deference to CalPERS’s legal conclusion, SPB changed its position and rejected the settlement in a decision voiding its prior approval.

Byrd’s subsequently petitioned for writ of mandate and declaratory judgment seeking to compel CalPERS to process her reinstatement at the higher salary level. CalPERS maintained that it could not do so because Government Code section 21198 – part of the statutory framework governing CalPERS’s oversight of state pension funds – only authorized Byrd’s reinstatement to a job classification she previously held before her termination, and Byrd had never before held the higher position. The trial court agreed with CalPERS and denied Byrd’s petition. Byrd appealed.

Held: The California Fourth District Court of Appeal held that Section 21198 prevented CalPERS from reinstating Byrd to a different classification. While the Court found there could hypothetically be rare circumstances in which reinstatement to a different classification was valid if there existed a “nexus between the new classification and the underlying dispute,” no such nexus existed in Byrd’s case here.

The Court explained as a preliminary matter that where a question of law requires interpreting a statute that governs CalPERS’s responsibilities, “‘the court accords great weight to PERS interpretation’”[31] due to the agency’s expertise and technical knowledge gained from its administration of the California Public Employees’ Retirement Law (“PERL”) (Government Code section 20000 et seq.; Section 21198 is part of PERL.) The Court explained that when CalPERS made its determination that the settlement was not compliant, the agency was acting in its capacity as the administrator of CalPERS, with its attendant expertise, articulating what it believed was the scope of its statutory authority.

The Court addressed CalPERS interpretation of Section 21198. Section 21198 reads in pertinent part: “A person who has been retired under this system for service following an involuntary termination of his or her employment, and who is subsequently reinstated to that employment pursuant to an administrative or judicial proceeding, shall be reinstated from retirement.” (italics added.) The Court explained that to “reinstate” meant to place an individual in that former state or position of employment – i.e., the same job, or at least the same job classification, including the same title and pay rate. The Court explained that reinstatement interpreted in this manner enabled CalPERS “to effectuate the purpose of this specific provision and recreate the status quo ante.”

The Fourth District observed that Byrd did not allege that the different job classification and higher salary had any connection to the underlying dispute (as perhaps might exist in a context of an alleged failure to promote as the underlying dispute). The Court thus concluded that Section 21198 prevented CalPERS from complying with the settlement agreement’s term that Byrd be reinstated to a different job classification at a higher salary that had no connection to the underlying dispute, and that the SPB properly refused to approve the settlement. Accordingly, the Court affirmed.


18 U.S.C. section 924(c)(3)(B), the residual clause defining ‘crime of violence’ in federal criminal prosecution for using a firearm during commission of the underlying crime, is unconstitutionally vague.

United States v. Davis, 139 S. Ct. 2319 (2019)

Facts: After Maurice Davis and Andre Glover robbed a number of gas stations in Texas, they were charged with multiple counts of robbery affecting interstate commerce in violation of the Hobbs Act,[32] and one count of conspiracy to commit Hobbs Act robbery. Davis was also charged with being a felon in possession of a firearm.

Each man was additionally charged with two 18 U.S.C. section 924(c) violations on the basis that they brandished a short-barreled shotgun in connection with their robberies. Section 924(c) authorizes heightened criminal penalties for using or carrying a firearm “during and in relation to,” or possessing a firearm “in furtherance of,” any federal “crime of violence or drug trafficking crime.” Section 924(c)(1)(A). Section 924(c) defines the phrase “crime of violence” in Section 924(c)(3)(A) – known as the “elements clause” – and Section 924(c)(3)(B) – the “residual clause.” According to Section 924(c)(3), a crime of violence is “an offense that is a felony” and

“(A) has as an element the use, attempted use, or threatened use of physical force against the person or property of another, or

“(B) that by its nature, involves a substantial risk that physical force against the person or property of another may be used in the course of committing the offense.”

A jury convicted the men on most of the underlying charges and on the two separate Section 924(c) charges for brandishing a firearm in connection with their crimes.

On appeal, the Fifth Circuit at first rejected the notion that Section 924(c)’s residual clause (i.e., Section 924(c)(3)(B)) was unconstitutionally vague, but on remand in light of Sessions v. Dimaya,[33] the Fifth Circuit held Section 924(c)(3)(B) was unconstitutional. It then held that Mr. Davis’s and Mr. Glover’s convictions on the Section 924(c) count charging robbery as the predicate crime of violence could be sustained under the elements clause, but that the other count—which charged conspiracy as a predicate crime of violence—could not be upheld because it depended on the residual clause. The United States Supreme Court granted certiorari to resolve whether Section 924(c)’s residual clause in Section 924(c)(3)(B) was constitutional.

                                                                                                                                                                                                                                                                                                                                                                                                    Held: The SupremeCourt explained that vague laws deny people from having fair notice of what the law requires of them, a necessity to uphold due process of law. Connally v. General Constr. Co., 269 U. S. 385, 391 (1926). Vague laws also undermine the Constitution’s separation of powers and the democratic self-governance it aims to protect. Only the people’s elected representatives in the legislature are authorized to “make an act a crime.” United States v. Hudson, 11 U.S. 32 (1812), not the judiciary. A vague law, the Court declared, is no law at all.

The Court explained that it had recently applied this “vagueness doctrine” in two cases involving laws similar to Section 924(c)(3)(B)’s residual clause—Johnson v. United States, 135 S. Ct. 2551, which addressed the residual clause of the Armed Career Criminal Act (ACCA), and Sessions v. Dimaya, which addressed the residual clause of 18 U.S.C. section 16. The residual clause in each case required judges to employ a “categorical approach” to determine whether an offense qualified as a violent felony or crime of violence. This approach required judges to disregard how the defendant actually committed the offense and instead imagine the degree of risk that would attend the idealized “‘ordinary case’” of the offense. The Court held in each case that these laws were too vague because the imposition of criminal punishments cannot be made to depend on a judge’s estimation of the degree of risk posed by a crime’s imagined “ordinary case.” Like the laws in these two cases, Section 924(c)(3)(B) had long been understood by the government and the lower courts to require the same categorical approach.

The Court noted that even the government admitted that the language of Section 924(c)(3)(B), read in the way nearly everyone (including the government) had long understood it, provided no reliable way to determine which offenses qualify as crimes of violence and thus was unconstitutionally vague. The government attempted to argue for a “a case-specific approach” to Section 924(c)(3)(B) that would look at the defendant’s actual conduct in the predicate crime, but the Court found that this approach was not supported by the section’s text, context, or history.

The Court acknowledged that “it might have been a good idea for Congress to have written a residual clause for [Section] 924(c) using a case-specific approach,” but Congress did not actually write such a clause. The section was written to use and had historically been used with the categorical approach, which Johnson and Dimaya had found to result in vague law for their respective cases. Based on the prior review of the parallel history and relationship between the residual clauses of Section 16 and Section 924(c), the Court thus agreed with the Fifth Circuit’s conclusion that Section 924(c)(3)(B) was unconstitutionally vague. The Supreme Court affirmed in part, vacated in part, and remanded for further proceedings.[34]


Under Health and Safety Code section 11362.1, possession of less than an ounce of cannabis in prison is no longer a crime.

People v. Raybon, 36 Cal. App. 5th 111 (3rd Dist. 2019)

Facts: In 1949, the California Legislature enacted Penal Code sections 4573, 4573.5, 4573.6, 4573.8, and 4573.9 “‘to deter the presence of illicit drugs in custodial institutions’” and thereby “‘ensure the orderly administration and security within such institutions.’”[35] Although the statutes must be construed together, each section targets different substances or different people possessing, using, selling, or smuggling the substances.[36]

In the case discussed here, each of the five defendants is an inmate serving a sentence for a conviction of possession of cannabis in violation of Section 4573.6. Section 4573.6 provides in relevant part: “Any person who knowingly has in his or her possession in any state prison … any controlled substances, the possession of which is prohibited by Division 10 (commencing with Section 11000) of the Health and Safety Code, … without being authorized to so possess the same by the rules of the Department of Corrections, rules of the prison … , or by the specific authorization of the warden … is guilty of a felony punishable by imprisonment pursuant to subdivision (h) of Section 1170 for two, three, or four years.” (Pen. Code section 4573.6 (a).)

In November 2016, state voters approved Proposition 64, titled the “Control, Regulate and Tax Adult Use of Marijuana Act” (the “Act”). The proposition, among other things, enacted Health and Safety Code section 11362.1, which provides: “(a) Subject to Sections 11362.2, 11362.3, 11362.4, and 11362.45, but notwithstanding any other provision of law, it shall be lawful under state and local law, and shall not be a violation of state or local law, for persons 21 years of age or older to:

“(1) Possess, process, transport, purchase, obtain, or give away to persons 21 years of age or older without any compensation whatsoever, not more than 28.5 grams of cannabis not in the form of concentrated cannabis;

“(2) Possess, process, transport, purchase, obtain, or give away to persons 21 years of age or older without any compensation whatsoever, not more than eight grams of cannabis in the form of concentrated cannabis, including as contained in cannabis products;

“(3) Possess, plant, cultivate, harvest, dry, or process not more than six living cannabis plants and possess the cannabis produced by the plants;

“(4) Smoke or ingest cannabis or cannabis products; and

“(5) Possess, transport, purchase, obtain, use, manufacture, or give away cannabis accessories to persons 21 years of age or older without any compensation whatsoever.

“(b) Paragraph (5) of subdivision (a) is intended to meet the requirements of … 21 U.S.C. Sec. 863(f) … by authorizing, under state law, any person in compliance with this section to manufacture, possess, or distribute cannabis accessories.

“(c) Cannabis and cannabis products involved in any way with conduct deemed lawful by this section are not contraband nor subject to seizure, and no conduct deemed lawful by this section shall constitute the basis for detention, search, or arrest.”

Under Proposition 64, decriminalization prevails “notwithstanding any other provision of law.” (Section 11362.1 (a).) “When the Legislature intends for a statute to prevail over all contrary law, it typically signals this intent by using phrases like ‘notwithstanding any other law’”[37] The five inmate defendants petitioned for relief from their convictions, along with filing a motion to dismiss under Health and Safety Code section 11361.8.[38] The defendants claimed the plain language of Proposition 64 no longer made possession of less than an ounce of cannabis a felony, and so their petitions dismissing their convictions must be granted.

They also argued that Section 11362.45 supported their claim because that section expressly lists the laws the electorate determined are not amended, repealed, affected, restricted, or preempted by Section 11362.1.[39] Subdivision (d) of section 11362.45 pertains to custodial institutions. According to Section 11362.45(d), Section 11362.1 does not amend, repeal, affect, restrict, or preempt “Laws pertaining to smoking or ingesting cannabis or cannabis products on the grounds of, or within, any facility or institution under the jurisdiction of the Department of Corrections and Rehabilitation or the Division of Juvenile Justice, or on the grounds of, or within, any other facility or institution referenced in Section 4573 of the Penal Code.” [Emphasis added.] The defendants argued that possession is clearly absent from subdivision (d). Thus, they maintained, voters specifically addressed the issue of cannabis in prisons and expressly prohibited use, not possession. The defendants argued that the plain language of the statutes clearly states that possession of less than an ounce of cannabis is no longer a prohibited controlled substance pursuant to Division 10 of the Health and Safety Code[40] (“Division 10”); therefore, possession is no longer a felony, even in prison. The superior court denied each of the petitions, and the defendants appealed.

Held: The California Third District Court of Appeal held that the plain language of Section 11362.1 made clear that possession of less than one ounce of cannabis in prison or a similar penal institution is not a felony, despite the Attorney General’s claims that the plain language reading of the statute would lead to an absurd result. The Court found that precedent also supported its view.

Section 4573.6 proscribes state prisoners from possession of “any controlled substances, the possession of which is prohibited by Division 10.” The Court explained that the insertion of the qualifier “prohibited by” before the reference to Division 10 means that “it limits the criminalized controlled substances to those prohibited by Division 10. Possession of less than one ounce of cannabis is no longer prohibited by Division 10, and therefore, according to the plain language of Penal Code section 4573.6, it is no longer a felony to possess less than one ounce in prison.”

The Court reviewed precedents and found support for its “plain meaning” statutory construction. In People v. Fenton,[41]defendantFenton was convicted of violating Penal Code sections 4573 and 4573.5 for smuggling in drugs for his back pain and sleep disorder while checking into a minimum security facility as a condition for probation and his work furlough program. Fenton had a doctor’s prescription for the smuggled pills, though he did not have the approval of the jail authorities for the drugs. Penal Code section 4573 prohibits smuggling a controlled substance, “the possession of which is prohibited by Division 10 (commencing with Section 11000) of the Health and Safety Code” into a jail. However, Health and Safety Code section 11350(a) proscribes possession of a controlled substance “unless upon the written prescription of a physician.”

The Third District said that the Attorney General, arguing in Fenton, “raised many of the arguments he recycles here.” The Attorney General maintained that the purpose of Section 4573 was to keep controlled substances out of jails, whether or not a physician prescribed them. The Fenton court rejected this view, finding that the plain meaning of the statute stated that one may bring controlled substances into a penal institution if an exception contained in Division 10 applied. Section 11350(a) did have such an exception, and allowed possession of controlled substances with a prescription.[42]

The Fenton court also rejected the Attorney General’s argument that the plain meaning of the statutes was absurd because it would both permit the introduction of controlled substances into a penal institution and also render Section 4573 a nullity by just restating Section 11350. The Court there disagreed with both arguments, explaining that Section 4573 obviously permitted controlled substances in penal facilities under the proper circumstances. The Fenton Court distinguished criminal laws from prison rules, which meant that penal institutions could still impose “specific rules on whether controlled substances for which the inmate has a physician’s prescription can be introduced into the institution.”[43] The Court also relied upon another opinion to support its holding.

In People v. Harris (2006) 145 Cal.App.4th 1456, the Court noted, the First District “once again rejected the Attorney General’s litany of arguments at odds with the plain meaning of the statute” where the defendant had brought medical marijuana into a state prison. Harris was qualified to use marijuana for chronic pain, but was convicted of a felony under Section 4573.5, which prohibits knowingly bringing into county correctional facilities, among other places, “any drugs, other than controlled substances.” Harris concluded that medical marijuana is a controlled substance after reviewing Division 10 for a definition of controlled substances. That Court said that the Section 4573.5’s “plain and commonsense meaning” showed that the Legislature intended to exclude controlled substances from the section’s scope.

The Attorney General in Harris argued “the same hackneyed and losing arguments,” said the Third District – i.e., a plain meaning interpretation would “effectively nullify” the Section’s original purpose in addressing “the ultimate evil” of drug use by prisoners, and result in an “absurd loophole.” Id. at 1465. The Harris court, like the Fenton court, rejected the Attorney General’s arguments: “The People’s interpretation is obviously incorrect in light of [Penal Code] section 4573.5’s plainly worded exclusion of controlled substances, which contains no ambiguity whatsoever. To add the qualification proposed by the People would require that we step beyond our judicial function and rewrite the statute, which we cannot do.” (Harris, supra, 145 Cal.App.4th at p. 1465.)

The Court also observed that the Harris courtalso found no absurdity, finding “it is conceivable that the Legislature has declined to criminalize the bringing of certain controlled substances, possession of which is allowed as stated in Division 10, into penal institutions and the like so as not to unnecessarily subject their possessors to criminal sanctions.” In response to the Attorney General’s reiterated argument that correctional officials would lose control over their facilities if the Harris court concluded that the electorate decriminalized possession of less than an ounce of cannabis, Harris noted, like Fenton, that rules prohibiting cannabis possession could be established and managed administratively. Harris explained: “Just because the electorate no longer characterizes possession of small amounts of cannabis as felonious conduct does not preclude prison authorities from banning possession to maintain order and safety in the prisons and other penal institutions.”

The Third District also explained that “[c]onsumption, not possession, is the act voters determined should remain criminalized if the user is in prison.” This is why “smoking and ingesting” cannabis, as referred to in Section 11362.45, were not decriminalized under Section 11362.1 but possession was no longer a crime. The Court said that “[b]y expressly providing that laws pertaining to smoking and ingesting cannabis in prison are not affected by the decriminalization of possession of less than an ounce of cannabis, the drafters and voters demonstrated they were aware of the prison population and chose to distinguish possession from consumption. Thus, the plain meaning of the language prevails.”

The Court also rejected the Attorney General’s public policy arguments as to why Section 11362.1 must not be construed to permit possession of less than an ounce of cannabis in prison facilities. The Court explained that Proposition 64 “voters, exercising their constitutional right to legislate through the initiative process, have changed the law and, in doing so, simply and plainly have decided to decriminalize that which the Attorney General would not. Judges cannot rewrite the statutes to conform to either our, or the Attorney General’s, notion of wise drug policy.” In addition, the Court did not find “the disasters

[the Attorney General]

foresees” likely, much less to “constitute the type of absurdity that allows us to disregard the voters’ clear intent.” Because the Attorney General offered “no viable way to escape the plain language of the statute,” the Third District rejected the argument that the legislative history or broader purposes of Penal Code section 4573.6 precluded “the amendment rightfully imposed by the initiative process.” Noting that “[a] result is not absurd because the outcome may be unwise,” the Court explained that a remedy for an undesirable public policy outcome should be supplied by the people or the Legislature, not by the Court rewriting enacted statutes to subscribe to a preferred version of sound public policy.

The Third District Court of Appeal thus found possession of under an ounce of cannabis in prison was no longer a crime, and that the defendants’ conduct underlying their convictions was consequently no longer criminal under Section 4573.6. The Court accordingly reversed the trial court’s rulings dismissing defendants’ petitions to dismiss their convictions for violations of Penal Code section 4573.6, and remanded for the trial court to enter orders granting their petitions for relief under Health and Safety Code section 11361.8.  It should be noted that this decision is directly contrary to another Court of Appeal decision on the same issue.

[1] See Johnson, 48 F.3d at 425.

[2] Mulligan v. Nichols, 835 F.3d 983, 989 (9th Cir. 2016).

[3] 812 F.2d 426 (9th Cir. 1987).

[4] 562 U.S. 411, 419 (2011).

[5] Internal citation omitted.

[6] See Florida v. J.L., 529 U.S. 266, 270-71 (2000).

[7] Alabama v. White, 496 U.S. 325, 329 (1990).

[8] See Alberty v. United States, 162 U.S. 499, 511 (1896).

[9] 633 F.3d 889 (9th Cir. 2011).

[10] See People v. Parrott, 10 Cal.App.5th 485, 492 (1st Dist. 2017): “‘It is well established that law enforcement officers may approach someone on the street or in another public place and converse if the person is willing to do so’ without having any ‘articulable suspicion of criminal activity.’” (quoting People v. Rivera (2007) 41 Cal.4th 304, 309.)

[11] See People v. Bailey, 176 Cal.App.3d 402, 406 (6th Dist. 1985).

[12] City of Indianapolis v. Edmond, 531 U.S. 32, 47 (2000).

[13] 384 U.S. 436 (1966).

[14] Section 149 provides: “Every public officer who, under color of authority, without lawful necessity, assaults or beats any person, is punishable by a fine not exceeding ten thousand dollars ($10,000), or by imprisonment in a county jail not exceeding one year, or pursuant to subdivision (h) of Section 1170, or by both that fine and imprisonment.”

[15] See People v. Guiton, 4 Cal.4th 1116, 1129 (1993).

[16] See In re Martinez, 3 Cal.5th 1216, 1224 (2017).

[17] Mackey v. Montrym, 443 U. S. 1, 17, 19 (1979).

[18] See Birchfield v. North Dakota, 136 S. Ct. 2160 (slip op., at 3-5) (2016), discussed in Client Alert Vol. 31 No. 11. Note that in Birchfield, the Supreme Court left as an exception to the warrant requirement those instances where an exigency may weigh in favor of a blood test without a search warrant. And Birchfield observed that Schmerber held that drunk driving may present such an exigency.

[19] McNeely, 569 U. S., at 169.

[20] Union Pacific R. Co. v. Locomotive Engineers, 558 U. S. 67, 82 (2009) (citing Bowles v. Russell, 551 U. S. 205, 209-211 (2007)).

[21] Gonzalez v. Thaler, 565 U. S. 134, 141, (2012).

[22] Sebelius v. Auburn Regional Medical Center, 568 U. S. 145, 153 (2013).

[23] Henderson v. Shinseki, 562 U. S. 428, 435 (2011).

[24] Reed Elsevier, Inc. v. Muchnick, 559 U. S. 154, 157 (2010).

[25] Zipes v. Trans World Airlines, Inc., 455 U. S. 385, 393 (1982).

[26] Bacilio v. City of Los Angeles, (2nd Dist. 2018).

[27] 184 Cal.App.4th 941, 948–950 (4th Dist. 2010).

[28] 153 Cal.App.3d 209 (3rd Dist. 1984).

[29] Guinn, at p. 946.

[30] California Attorneys, etc. v. Schwarzenegger, 174 Cal.App.4th 424, 433–434 (3rd Dist. 2009).

[31] City of Pleasanton v. Board of Admin., 211 Cal.App.4th 522, 539 (1st Dist. 2012).

[32] 18 U.S.C. section 1951(a).

[33] 138 S. Ct. 1204 (2018).

[34] The Fifth Circuit had deferred ruling on the defendants’ rehearing petitions pending this Supreme Court’s decision, so the Supreme Court remanded to allow the lower court to address those petitions.

[35] People v. Lee, 136 Cal.App.4th 522, 536 (5th Dist. 2006).

[36] People v. Gutierrez, 52 Cal.App.4th 380, 385 (1997).

[37] In re Greg F., 55 Cal.4th 393, 406–407 (2012).

[38] The Act also enacted Section 11361.8. The Attorney General conceded defendants are “currently serving a sentence for a conviction … .” (Section 11361.8 (a).) When a court receives a petition under Section 11361.8(a), the court “presume[s]” that the person qualifies for relief unless the People present “clear and convincing evidence” to the contrary. (Health & Saf. Code section 11361.8 (b).)

[39] These include laws: prohibiting driving a vehicle while smoking, ingesting, or impaired by cannabis or cannabis products (Section 11362.45 (a)); prohibiting sales or furnishing of cannabis or cannabis products to a person under the age of 21 (Section 11362.45 (b)); prohibiting a person younger than 21 from engaging in any of the conduct otherwise permitted under Section 11362.1 (Section 11362.45 (c)); and providing that undertaking any task while impaired from smokingor ingesting cannabis or cannabis products constitutes negligence or professional malpractice (Section 11362.45 (e)).

[40] Section 11362 is part of Division 10, which begins with Health and Safety Code section 11000.

[41] 20 Cal.App.4th 965 (3rd Dist. 1993).

[42] Fenton, 20 Cal. App. 4th at p. 969.

[43] Id. at p. 970.