Courtesy of James R. Touchstone, Esq.
CONSTITUTIONAL LAW/POLICE CONDUCT
A. The Supreme Court clarifies the extent of authority of Indian tribal peace officers on public rights-of-way on reservation land.
United States v. Cooley, 141 S. Ct. 1638 (2021)
Facts: United States Highway 212 is a public right-of-way within the Crow Reservation in the State of Montana. Officer James Saylor of the Crow Police Department was driving east on Highway 212 late at night in February 2016 when he saw a truck parked on the westbound side of the highway. Believing the occupants might need assistance, Saylor approached the truck and spoke to the driver, Joshua James Cooley. Saylor observed that Cooley appeared to be non-native.
Saylor also saw two semiautomatic rifles lying on the front seat of the vehicle. Fearing violence, he ordered Cooley out of the truck and conducted a patdown search. Saylor also called tribal and county officers for assistance. While waiting for the officers to arrive, Saylor returned to the truck. Inside the truck, Saylor saw a glass pipe and plastic bag that contained methamphetamine. The other officers, including an officer with the federal Bureau of Indian Affairs, arrived on the scene. They directed Saylor to seize all contraband in plain view, whereupon Saylor discovered more methamphetamine. Saylor took Cooley to the Crow Police Department where federal and local officers further questioned Cooley.
Subsequently, a federal grand jury indicted Cooley on drug and gun offenses. The District Court granted Cooley’s motion to suppress the drug evidence that Saylor had seized, reasoning that Saylor, as a Crow Tribe peace officer, lacked the authority to investigate nonapparent violations of state or federal law by a non-Indian on a public right-of-way crossing the reservation. The Government appealed.
The Ninth Circuit Court of Appeals affirmed the District Court’s decision to suppress the evidence. The Court wrote that tribes cannot exclude non-Indians from a state or federal highway and “lack the ancillary power to investigate non-Indians who are using such public rights-of-way.” The Court stated that a tribal police officer nonetheless could stop (and hold for a reasonable time) a non-Indian suspect, but only if (1) the officer first tried to determine whether “the person is an Indian,” and, if the person turns out to be a non-Indian, (2) it is “apparent” that the person has violated state or federal law. Because Saylor had not initially tried to determine whether Cooley was an Indian, the Ninth Circuit held that the District Court had correctly suppressed the evidence. The Ninth Circuit subsequently denied the Government’s request for rehearing en banc. The Supreme Court of the United States granted the Government’s petition for certiorari.
Held: The Supreme Court observed that the question it addressed here was whether an Indian tribe’s peace officer has the authority to detain temporarily and to search a non-Indian on a public right-of-way that runs through an Indian reservation for potential violations of state or federal law prior to the suspect’s transport to the proper nontribal authorities for prosecution.
The Court explained that it had long ago described Indian tribes as “distinct, independent political communities” exercising sovereign authority. Worcester v. Georgia, 6 Pet. 515, 559 (1832). However, the “sovereignty that the Indian tribes retain is of a unique and limited character”[1] due to their incorporation into the United States. Tribal authority remains subject to the plenary authority of Congress. The Court noted that tribes generally lack inherent sovereign power to exercise criminal jurisdiction over non-Indians. See Oliphant v. Suquamish Tribe, 435 U. S. 191, 212 (1978). However, the Court noted that it previously had held there are exceptions to this general rule.
The Court observed that a tribal peace officer has authority to detain temporarily and to search non-Indian persons traveling on public rights-of-way running through a reservation for potential violations of state or federal law based upon the second exception identified in the Montana decision. Namely, a tribe retains inherent authority over the conduct of non-Indians on the reservation “when that conduct threatens or has some direct effect on . . . the health or welfare of the tribe.” Id., at 566. The Court concluded that Saylor’s actions fell within this exception and was consistent with the prior Montana line of cases. For example, the Court noted that it had held that when the “jurisdiction to try and punish an offender rests outside the tribe, tribal officers may exercise their power to detain the offender and transport him to the proper authorities.” Duro v. Reina, 495 U. S. 676, 697 (1990). The Court determined that ancillary to the authority to transport a non-Indian suspect is the authority to search that individual prior to transport, as several state courts and other federal courts have held.
In addition, the Court stated that recognizing a tribal officer’s authority to investigate potential violations of state or federal laws that apply to non-Indians whether outside a reservation or on a public right-of-way within the reservation protects public safety without implicating the concerns about applying tribal laws to non-Indians noted in the Court’s prior cases. Moreover, the Court questioned the workability of the Ninth Circuit’s standards, which would require tribal officers first to determine whether a suspect is non-Indian and, if so, to temporarily detain a non-Indian only for “apparent” legal violations. The Court stated that the first requirement produced an incentive to lie by those detained. The second requirement introduced a new standard into search and seizure law that created a problem of interpretation that will arise frequently given the prevalence of non-Indians on Indian reservations.
B. ‘Exceeds authorized access’ clause of the Computer Fraud and Abuse Act of 1986 does not extend to those who access computer with authorization but for an improper purpose.
Van Buren v. United States, 141 S. Ct. 1648 (2021)
Facts: Former Georgia police sergeant Nathan Van Buren used his patrol-car computer to access a law enforcement database to retrieve information about a particular license plate number in exchange for money from a man named Andrew Albo. Although his actions violated department policy authorizing him to obtain database information only for law enforcement purposes, Van Buren used his own, valid credentials to perform the search. Van Buren was unaware that his actions were part of a Federal Bureau of Investigation (“FBI”) sting operation, and that the FBI had created the database entry for the particular license plate that Albo had specified. After obtaining the FBI-created license-plate entry, Van Buren told Albo that he had information to share.
Van Buren was charged with a felony violation of the Computer Fraud and Abuse Act of 1986 (“CFAA” or the “Act”), which subjects to criminal liability anyone who “intentionally accesses a computer without authorization or exceeds authorized access,” and thereby obtains computer information. 18 U. S. C. section 1030(a)(2). The Act defines the term “exceeds authorized access” to mean “to access a computer with authorization and to use such access to obtain or alter information in the computer that the accesser is not entitled so to obtain or alter.” Section 1030(e)(6).
A jury convicted Van Buren, and the District Court sentenced him to 18 months in prison. Van Buren appealed to the Eleventh Circuit, arguing that the “exceeds authorized access” clause applies only to those who obtain information to which their computer access does not extend, not to those who misuse access that they otherwise have. Several Circuit Courts viewed the clause in the way that Van Buren proposed. However, the Eleventh Circuit, consistent with its own Circuit precedent, disagreed and held that Van Buren had violated the CFAA. The United States Supreme Court granted certiorari to resolve the split in authority regarding the scope of liability under the CFAA’s “exceeds authorized access” clause.
Held: The Supreme Court observed that the parties agreed that Van Buren “access[ed] a computer with authorization” and “obtain[ed] . . . information in the computer.” However, the parties disputed whether Van Buren was “entitled so to obtain” that information, specifically disagreeing on the appropriate interpretation of the word “so”.
Van Buren argued that the word “so” as used in the statute serves as a term of reference, meaning
in “the same manner as has been stated” or “the way or manner described.”[2] The “entitled so to obtain” phrase thus asked whether one has the right, in “the same manner as has been stated” or “the way or manner described,” to obtain the relevant information. According to Van Buren, the only manner of obtaining information already stated in the definitional provision is by a computer one is authorized to access. Thus, the phrase “is not entitled so to obtain” refers to information one is not allowed to obtain by using a computer that he is authorized to access. The Supreme Court agreed, finding that Van Buren’s interpretation of “so” best aligned with the term’s plain meaning as a term of reference, as further reflected by other federal statutes that use “so” the same way.
The Court rejected the Government’s much broader interpretation of the word “so” to signify merely information one was not allowed to obtain in the particular manner or circumstances one obtained it. The Court explained that the Government ignored the part of the definition of “so” instructing that such manner or circumstance already will have been stated, asserted, or described.[3] (The Court found the dissent made a similar omission in its reasoning.) Under the Government’s approach, the Court stated, the relevant circumstance—the one rendering a person’s conduct illegal—is not identified earlier in the statute; instead, “so” captures any circumstance-based limit appearing anywhere—in the United States Code, a state statute, a private agreement, or anywhere else. The Court declared that the relevant question was whether Van Buren exceeded his authorized access only as the CFAA specifically defined that phrase. The Court also determined that Section 1030’s structure, civil liability provisions, and criminal penalty implications more favorably aligned with Van Buren’s interpretation than that of the Government.
The Supreme Court thus held that an individual “exceeds authorized access” when he accesses a computer with authorization but then obtains information located in particular areas of the computer—such as files, folders, or databases—that are off-limits to him. As Van Buren had accessed the database with authorization and was entitled to use the database system to retrieve license plate information (despite his improper purpose in doing so), he accordingly did not “exceed[] authorized access” as the CFAA defined that phrase. The Supreme Court accordingly reversed and remanded.
C. Under the Fourth Amendment, pursuit of a fleeing misdemeanor suspect does not always justify a warrantless entry into a home.
Lange v. California, 141 S. Ct. 2011 (2021)
Facts: Arthur Lange was playing loud music with his car windows down and repeatedly honking his horn as he drove by a California highway patrol officer in Sonoma. The officer began to tail Lange, and soon afterward turned on his overhead lights to signal that Lange should pull over. By that time, however, Lange was only approximately 100 hundred feet from his home. Instead of stopping, Lange continued to his driveway and entered his attached garage. The officer followed Lange into the garage and began questioning him. Observing signs of intoxication, the officer put Lange through field sobriety tests. Lange did not do well on these tests. A later blood test revealed that Lange’s blood-alcohol content was more than three times the legal limit.
The State charged Lange with the misdemeanor of driving under the influence of alcohol. Lange moved to suppress the evidence obtained after the officer entered his garage, arguing that the warrantless entry had violated the Fourth Amendment. The State argued that the officer had probable cause to arrest Lange for the misdemeanor of failing to comply with a police signal. The State insisted that the pursuit of a suspected misdemeanant always qualifies as an exigent circumstance authorizing a warrantless home entry. The Superior Court denied Lange’s motion, and its appellate division affirmed.
The California Court of Appeal also affirmed, accepting the State’s argument in full. The Court of Appeal reasoned that Lange’s failure to immediately pull over when the officer flashed his lights created probable cause to arrest Lange for a misdemeanor. The Court stated that a misdemeanor suspect could not defeat an arrest begun in a public place by retreating into a house or other private place. Rather, the Court held, an officer’s pursuit into the house to prevent the suspect from frustrating the arrest is always permissible under the exigent-circumstances exception to the warrant requirement. Because of this flat rule, the Court of Appeal concluded, the highway patrol officer’s pursuit of misdemeanor suspect Lange into the driveway and garage was lawful – despite the lack of a warrant. The California Supreme Court denied review.
Noting that courts have been divided on the issue, the United States Supreme Court granted certiorari to resolve whether the Fourth Amendment categorically permits an officer to enter a home without a warrant in pursuit of a fleeing misdemeanor suspect.
Held: The Supreme Court noted that the Fourth Amendment provides that “[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated.” The “reasonableness” standard “generally requires the obtaining of a judicial warrant” before a law enforcement officer can enter a home without permission. Riley v. California, 573 U. S. 373, 382 (2014) (internal quotation marks omitted).
However, the warrant requirement is subject to certain exceptions. One such exception is for exigent circumstances. An officer may make a warrantless entry when “the exigencies of the situation make the needs of law enforcement so compelling that [a] warrantless search is objectively reasonable.” Kentucky v. King, 563 U. S. 452, 460 (2011). For example, an officer may enter a home to protect an occupant from imminent injury, to provide emergency assistance to an injured occupant, to ensure the officer’s own safety, to prevent the destruction of evidence, or to prevent a suspect’s escape. Brigham City v. Stuart, 547 U. S. 398, 403 (2006).
Here, the Supreme Court considered whether the pursuit of a fleeing misdemeanor suspect categorically qualifies as an exigent circumstance, or if a “case-by-case basis” application of the exigent-circumstances exception is warranted. Birchfield v. North Dakota, 579 U. S. 438, ___ (2016) (slip op., at 16). The Court noted that its Fourth Amendment precedents had generally applied a “case-specific” approach “look[ing] to the totality of circumstances” confronting the officer as he decides to make a warrantless entry. Missouri v. McNeely, 569 U. S. 141, 149 (2013).
Because the “home is entitled to special protection[,]”[4] the Supreme Court stated that it “ha[d] repeatedly declined to expand the scope” of “exceptions to the warrant requirement to permit warrantless entry into the home[.]” Caniglia v. Strom, 593 U. S. ___, ___ (2021) (slip op., at 4).
The Court observed that misdemeanors “run the gamut of seriousness,” and they may be minor. States tend to apply the misdemeanor label to less violent and less dangerous crimes. The Supreme Court had earlier held that “application of the exigent-circumstances exception in the context of a home entry should rarely be sanctioned when there is probable cause to believe that only a minor offense” is involved. Welsh v. Wisconsin, 466 U. S. 740, 753 (1984). The Court explained that although “the calculus changes” when considering the additional circumstance of a suspect’s flight, it did not change enough to justify a categorical rule. While flight creates a need for police to act swiftly in many situations, the Court stated that “no evidence suggests that every case of misdemeanor flight creates such a need.”
The Court thus determined that its Fourth Amendment precedents pointed toward assessing case by case the exigencies arising from misdemeanants’ flight. The Court found additional support for its assessment in its review of common law. The Court accordingly concluded that pursuit of a misdemeanant does not trigger a categorical rule allowing a warrantless entry into a home. The Court stated that when the totality of circumstances (including a suspect’s flight) shows an emergency—a need to act before it is possible to get a warrant—the police may act without waiting. But assessing case by case the exigencies arising from misdemeanants’ flight was the correct approach, rather than application of a categorical rule. Because the Court of Appeal had applied the categorical rule the Supreme Court rejected here, the Supreme Court vacated the lower court’s judgment and remanded.
For a more detailed discussion of this case, please see Client Alert Vol. 36, No. 10, available at www.jones-mayer.com.
D. Discovery of outstanding arrest warrant attenuated taint of unlawful detention, so evidence obtained during subsequent search was admissible.
People v. Kasrawi, 65 Cal. App. 5th 751 (4th Dist. 2021)
Facts: San Diego Police Officer John Pardue was driving with his headlights on during his regular patrol route at 4 a.m. in an affluent neighborhood when he saw Omar J. Kasrawi cross a residential street and begin to enter his legally parked Toyota Prius. Pardue had a hunch something was amiss because he rarely saw people during his nighttime patrol, knew of two car burglaries in the area in the past week, and did not recognize that particular Prius.
Pardue turned on his spotlight and pulled up behind and to the side of the Prius, flooding Kasrawi with a bright light. Kasrawi turned his body to face Pardue, who immediately exited his vehicle and walked to Kasrawi, stopping a few feet away as he asked Kasrawi where he was coming from. Kasrawi replied that he was resting, having driven from Los Angeles. Pardue suspected Kasrawi was actually casing vehicles and detained Kasrawi, handcuffing him. Approximately 15 seconds had elapsed from the time Pardue parked his car to when he handcuffed Kasrawi. Pardue subsequently learned that Kasrawi had an outstanding arrest warrant, and arrested Kasrawi. A subsequent search incident to arrest yielded stolen purses, loose change, and other items from nearby cars in Kasrawi’s pockets and his Prius.
Kasrawi moved to suppress the evidence on the basis that Pardue illegally detained him, making the fruits of the detention inadmissible. The trial court denied the motion. After his trial, Kasrawi was convicted of vehicle tampering and other counts. He appealed.
Held: The California Fourth District Court of Appeal explained that the Fourth Amendment and the California Constitution protect the public from unreasonable searches and seizures.[5] This protection extends to “brief investigatory stops” (In re Edgerrin J. (4th Dist. 2020) 57 Cal.App.5th 752, 759). The Court observed that a police detention is constitutional only when facts known to the officer give rise to a reasonable suspicion that the person is involved in some illegal activity.
After looking at similar cases and considering the manner in which Pardue confronted Kasrawi—including his use of the spotlight, the position of his car, how quickly he got out and walked to Kasrawi, and the immediate, direct question he posed—the Fourth District concluded that Kasrawi was detained before he responded to Pardue’s inquiry. The Court emphasized “the spotlight factor” as significant, explaining that Pardue “bathed” [6] Kasrawi in light and that it was not a momentary flash.[7] The Court stated that while the spotlight alone may not have been enough, the authoritative “‘manner [and] mode’” of Pardue’s approach and his assertion of total control removed any ambiguity as to whether Kasrawi could leave.[8] The Court stated that Pardue’s body worn camera and his testimony demonstrated that “his patrol car headlights already provided significant illumination of the area.” The Court explained that a reasonable person would not feel free to terminate such an encounter with law enforcement. Moreover, the detention was unlawful because the factors known to Pardue at that point gave rise to no more than a mere hunch that Kasrawi might be involved in criminal activity.
The Court expressed appreciation for the concurring and dissenting opinion’s warning not to disincentivize officers from using their spotlights for safety purposes. The Court explained that it was tying its decision to the circumstances in this case; that it recognized that a tension between the officer’s need to use a spotlight for safety purposes and the show of authority it created could arise in other cases; and that the Court did not intend to substitute its judgment on safety protocols for that of a trained officer.
However, the Fourth District stated that Supreme Court precedent compelled the conclusion that despite the Fourth Amendment violation, the evidence need not be suppressed. The Fourth District explained that this case fell into a narrow exception to the exclusionary rule that applies where a law enforcement officer discovers the defendant’s outstanding warrant after an illegal stop but before a search yields evidence of a crime, as pronounced in both People v. Brendlin (2008) 45 Cal.4th 262 and Utah v. Strieff (2016) 136 S.Ct. 2056, 2059. Under these limited circumstances, the Court observed, discovery of the warrant can attenuate the taint of the original detention. The Court concluded that Pardue’s discovery of Kasrawi’s outstanding arrest warrant attenuated any taint so that the evidence obtained during the subsequent search was admissible. The Court explained the fact that Pardue’s approach was assertive enough to make Kasrawi believe he was not free to leave “[did] not transform this liminal illegal stop into a flagrant abuse of power.” The Fourth District accordingly affirmed.
E. In excessive force case, Circuit Court erred in not conducting the careful, context-specific analysis required by Supreme Court precedent.
Lombardo v. City of St. Louis, 141 S. Ct. 2239 (2021)
Facts: In December 2015, St. Louis Metropolitan Police Department officers arrested Nicholas Gilbert and brought him to the Department’s central station and placed him in a holding cell. Thereafter, an officer saw Gilbert tie a piece of clothing around the bars of his cell and put it around his neck, in an apparent attempt to hang himself. Officers responded and entered Gilbert’s cell. Although Gilbert was slight of build, he struggled against the officers. He was handcuffed with his arms behind his back. As Gilbert kicked the officers, he hit his head on a concrete bench. After Gilbert kicked one of the officers in the groin, two officers shackled his legs together as Gilbert continued to struggle. Emergency medical services personnel were phoned for assistance.
More officers responded, and six officers ended up in the cell with Gilbert. The officers moved Gilbert, handcuffed and in leg irons, to a prone position, face down on the floor. Three officers held Gilbert’s limbs down at the shoulders, biceps, and legs. One officer placed pressure on Gilbert’s back and torso. Gilbert tried to raise his chest, saying, “It hurts. Stop.”
After 15 minutes of struggling in this position, Gilbert’s breathing became abnormal and he stopped moving. The officers were unsuccessful in their attempts to resuscitate him. An ambulance eventually transported Gilbert to the hospital, where he was pronounced dead.
Gilbert’s parents sued, alleging that the officers had used excessive force. The District Court granted summary judgment in favor of the officers, concluding that they were entitled to qualified immunity because they did not violate a constitutional right that was clearly established at the time of the incident. The Eighth Circuit Court of Appeals affirmed on different grounds, holding that the officers did not apply unconstitutionally excessive force against Gilbert.
Held: The United States Supreme Court granted certiorari. The Court explained that in assessing a claim of excessive force, courts ask “whether the officers’ actions are ‘objectively reasonable’ in light of the facts and circumstances confronting them.” Graham v. Connor, 490 U. S. 386, 397 (1989). However, this standard may not be applied “mechanically,” Kingsley v. Hendrickson, 576 U. S. 389, 397 (2015), because the inquiry “requires careful attention to the facts and circumstances of each particular case.” Graham, 490 U. S., at 396. Those circumstances include “the relationship between the need for the use of force and the amount of force used; the extent of the plaintiff ’s injury; any effort made by the officer to temper or to limit the amount of force; the severity of the security problem at issue; the threat reasonably perceived by the officer; and whether the plaintiff was actively resisting.” Kingsley, 576 U. S., at 397.
Although the Eighth Circuit cited the Kingsley factors, the Supreme Court stated that it was “unclear whether the [Court of Appeals] thought the use of a prone restraint—no matter the kind, intensity, duration, or surrounding circumstances—is per se constitutional so long as an individual appears to resist officers’ efforts to subdue him.” The Supreme Court noted that the Court of Appeals had cited Circuit precedent for the proposition that “the use of prone restraint is not objectively unreasonable when a detainee actively resists officer directives and efforts to subdue the detainee.” The Supreme Court also observed that the Eighth Circuit described as “insignificant” facts that could distinguish that precedent and appear potentially important under Kingsley, including that Gilbert was already handcuffed and leg shackled when officers moved him to the prone position and that officers kept him in that position for 15 minutes.
The Supreme Court observed that such details could be significant when deciding whether to grant summary judgment on an excessive force claim. The Court explained that record evidence here (viewed in the light most favorable to Gilbert’s parents) demonstrated that officers placed pressure on Gilbert’s back even though St. Louis instructs its officers that pressing down on the back of a prone subject can cause suffocation. Moreover, the evidentiary record also included common police guidance recommending that officers get a subject off his stomach as soon as he is handcuffed because of the suffocation risk. The guidance also indicated that the struggles of a prone suspect may be due to oxygen deficiency, rather than an intent to disobey officers’ commands.
The Supreme Court stated that “[s]uch evidence, when considered alongside the duration of the restraint and the fact that Gilbert was handcuffed and leg shackled at the time, may be pertinent to the relationship between the need for the use of force and the amount of force used, the security problem at issue, and the threat—to both Gilbert and others—reasonably perceived by the officers.” Without analysis of such evidence and having characterized it as insignificant, the Supreme Court stated, the Eighth Circuit’s opinion could be understood to treat Gilbert’s “ongoing resistance” as controlling as a matter of law. The high court stated that “[s]uch a per se rule would contravene the careful, context-specific analysis required by this Court’s excessive force precedent.” Accordingly, the Supreme Court granted the petition for certiorari, vacated the Eighth Circuit’s judgment, and remanded the case “to give the court the opportunity to employ an inquiry that clearly attends to the facts and circumstances in answering those questions in the first instance.”
Justice Alito, joined by Justice Gorsuch and Justice Thomas, dissented. The dissent stated that the majority, by vacating the lower court’s judgment and remanding, evaded the “real issue” of whether the record supported summary judgment in favor of the defendant police officers and the city of St. Louis. The dissent stated that the Court should either “deny review of the fact-bound question that the case presents or grant the petition, have the case briefed and argued, roll up our sleeves, and decide the real issue.” The dissent also believed that the majority unfairly interpreted the Court of Appeals’ decision.
EMPLOYMENT
Sheriff could not reduce court security if funding insufficient under parties’ MOU because agreed-upon level of security ‘remains in effect’ until parties agree to new MOU.
Superior Court v. Cnty. of Alameda, 65 Cal. App. 5th 838 (6th Dist. 2021)
Facts: In 2012, the California Legislature enacted the Superior Court Security Act of 2012 (the “2012 Act”),[9] which required a superior court and a sheriff to “develop an annual or multiyear comprehensive court security plan that includes the mutually agreed upon law enforcement security plan to be utilized by the court.”[10] The 2012 Act mandated an “annual or multiyear memorandum of understanding” between the court and the sheriff “specifying an agreed-upon level of court security services … .” (Government Code Section 69926, subd. (b).) The 2012 Act also provided that “[t]he terms of a memorandum of understanding shall remain in effect, to the extent consistent with this article, and the sheriff shall continue to provide court security as required by this article, until the parties enter into a new memorandum of understanding.” (Section 69926, subd. (f).)
In July 2015, Alameda County Superior Court (“ACSC”), the County of Alameda (“County”), and the Alameda County Sheriff’s Office (“Sheriff”) entered into a Memorandum of Understanding (“MOU”), which recited that it was statutorily required to “specif[y] the agreed upon level of court security services.” The 2015 MOU, which covered the three-year period retroactively beginning on July 1, 2014, provided that it “shall remain in effect for a period of three (3) years, or until amended or terminated … .” Section 1(B) of the MOU provided: “If the MOU expires before the Parties have executed a new MOU, this MOU shall continue until a new MOU is in place.”
In 2017, the Sheriff informed ACSC that court security staffing would be substantially reduced due to a shortfall in funding from the State. The County and the Sheriff thereafter unilaterally reduced court security services below the minimum level of service of 129 daily full time equivalent (“FTE”) positions that had been identified in exhibit C-1 of the 2015 MOU as the necessary level of court security services.
ACSC protested the reduction in court security services, eventually filing a petition for a writ of mandate and a complaint for declaratory relief under Government Code section 69926. The trial court determined that the MOU did not obligate the Sheriff to provide a minimum level of court security services of 129 FTEs after the expiration of the MOU. The trial court explained that the MOU entitled the County and the Sheriff to unilaterally reduce court security services below 129 FTEs if funding provided to the County by the State of California for court security services was not sufficient to pay for 129 FTEs. The court denied ACSC’s petition and entered judgment for the County and the Sheriff. ACSC appealed.
Held: The California Sixth District Court of Appeal explained that the trial court’s decision had turned on its conclusion that exhibit C-3 of the MOU permitted the Sheriff to reduce court security services provided during the last six months of the three-year period covered by the MOU and that exhibit C-3 was the “deployment schedule” that remained in force under the MOU after the MOU’s expiration until the parties agreed on a new MOU. ACSC argued in the trial court that exhibit C-1, the deployment schedule that governed the level of court security during the first two years of the period covered by the MOU and which required a minimum of 129 FTEs, was the only deployment schedule in the MOU, and therefore it was exhibit C-1 that remained in force after the expiration of the MOU.
The Sixth District concluded that exhibit C-1’s provisions concerning the level of court security services remained in force after the expiration of the MOU because exhibit C-1 was the only portion of the MOU that meets the requirement of Government Code section 69926 that a court security MOU specify an “agreed-upon level” of court security services. (Id., subd. (b).) Moreover, the Court found that exhibit C-3 did not satisfy that requirement. Consequently, we reverse the trial court’s decision and remand for further proceedings. The Court also determined that a provision of the MOU indicating the State would provide funding directly for baseline services pursuant to Government Code section 30025, did not restrict baseline services to those funded by the State because the requirement to use state funds exclusively for trial court security under Section 3002 (f)(10), did not restrict the trial court’s entitlement to security services. The Court of Appeal accordingly reversed the lower court’s judgment.
FIREARMS
A. Defendant employed gun in furtherance of his crimes by using gestures and telling victim he had a gun; thus, defendant used a firearm within the meaning of Penal Code section 12022.53(b).
People v. Jones, 65 Cal. App. 5th 1 (3rd Dist. 2021)
Facts: In September 2016, Eddie Ray Jones, Jr., kidnapped a grandmother, F., and her two-year-old granddaughter while carjacking F.’s car in a restaurant parking lot. Jones approached F. with a handgun in the front pocket of his hooded sweatshirt as F. was putting the baby into her car seat and told her, “don’t do nothing stupid, just do whatever I say and nothing is going to happen to you or the baby.” F. did not see the gun at this time, but during her trial testimony, she demonstrated the gesture Jones made towards her with his hand in the pocket as the “traditional, I have a gun in my pocket sign.”[11] F. also told two police officers, during separate interviews, that Jones announced he had a gun when he approached. Jones got into the passenger seat and told F. to give him her cell phone so she could not call the police. At Jones’s direction, F. drove him to a few locations. Eventually, Jones took over driving, parked the car, and forced F. to orally copulate him. Jones then drove to another location, where he took money from F. and then allowed her to leave on foot with her granddaughter as Jones drove away in her car.
Jones was convicted by jury of two counts of kidnapping during a carjacking, two counts of robbery, and one count of forcible oral copulation. With respect to the latter crime, the jury found Jones kidnapped F. and the movement increased the risk of harm to her beyond that inherently present in the commission of the oral copulation. With respect to each count, the jury also found Jones personally used a firearm in the commission of the offense. The trial court sentenced Jones to serve an aggregate determinate prison term of 33 years plus a consecutive indeterminate term of 32 years to life. Jones appealed.
Held: Penal Code section 12022.53(b) provides for “an additional and consecutive term of imprisonment in the state prison for 10 years” for “any person who, in the commission of [specified felony offenses], personally uses a firearm.” The Third District Court of Appeal explained that a defendant “uses a firearm” within the meaning of Section 12022.53 “where the defendant intentionally display[s] a firearm in a menacing manner in order to facilitate the commission of an underlying crime.” (People v. Carrasco (2nd Dist. 2006) 137 Cal.App.4th 1050, 1059.)
On appeal, Jones contended that the evidence was insufficient to support the enhancement for personal use of a firearm attached to the first robbery count, involving the taking of F.’s cell phone, because that robbery was complete before Jones displayed the gun in a menacing fashion. However, the Third District explained that the enhancement does not require the victim to have seen, heard, or felt the gun itself; instead, the enhancement merely required a facilitative use of the gun. The Third District agreed with the First District that “[b]y merely bringing a gun ‘into play,’ the defendant removes impediments to its actual discharge and thus enhances the danger of violent injury not only through an intentional act by the victim or a third party, but through an impulsive or inadvertent act by the defendant.” (People v. Granado (1st Dist. 1996) 49 Cal.App.4th 317, 327.)
The Third District observed that here Jones had employed the gun in his pocket in furtherance of the offenses of kidnapping and robbery by gesturing to F. with the gun in his pocket, telling her he had one, and further telling her to do what he said and nothing would happen to her or the baby, suggesting that disobeying would result in him using the gun to harm both of them. The Court of Appeal therefore concluded that Jones used a firearm during the commission of the robbery within the meaning of Section 12022.53(b), and accordingly affirmed.
B. Ninth Circuit stays District Court ruling holding that California assault weapons laws are unconstitutional.
Miller v. Bonta, 2021 U.S. App. LEXIS 18452 (9th Cir. June 21, 2021)
Facts: The Second Amendment provides: “A well-regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.” U.S. Const. amend. II. This right is incorporated against the states under the Fourteenth Amendment.
California’s Assault Weapons Control Act (“AWCA”) was enacted in 1989 due to concerns expressed by the Legislature that an “assault” weapon “has such a high rate of fire and capacity for firepower that its function as a legitimate sports or recreational firearm is substantially outweighed by the danger that it can be used to kill and injure human beings.”[12] AWCA banned “assault” weapons by specific makes and models.[13] In 2000, the AWCA was amended to add certain prohibited features to its definition of assault weapons (now codified at Penal Code section 30515(a)).
Plaintiffs challenged the constitutionality of California statutes which restrict the use of assault weapons, identifying Penal Code sections 30515(a)(1) through (8) (defining an “assault weapon” by prohibited features), 30800 (deeming certain “assault weapons” a public nuisance), 30915 (regulating “assault weapons” obtained by bequest or inheritance), 30925 (restricting importation of “assault weapons” by new residents), 30945 (restricting use of registered “assault weapons”), and 30950 (prohibiting possession of “assault weapons” by minors).
Held: In June 2021, the United States District Court for the Southern District of California held that California statutes which restrict the use of assault weapons violate the Second Amendment.[14] Citing District of Columbia v. Heller, 554 U.S. 570 (2008), Judge Benitez stated that the Second Amendment “elevates above all other interests the right of law-abiding, responsible citizens to use arms in defense of hearth and home.” Id., 554 U.S., at 635. Judge Benitez noted that in Caetano v. Massachusetts, 577 U.S. 411 (2016), the Supreme Court expressed that, under Heller, the Second Amendment extends at the very least to common modern arms useful for self-defense in the home, and that Second Amendment protection includes both common arms and weapons that may also be useful in warfare. Caetano, 577 U.S., at 412 (quoting Heller, 554 U.S., at 582, 624-25) (2016).
In reference to the AWCA, Judge Benitez explained that the Heller test asks whether the law bans a firearm that is commonly owned by law-abiding citizens for lawful purposes? Judge Benitez stated that “the overwhelming majority of citizens who own and keep the popular AR-15 rifle[15] and its many variants do so for lawful purposes, including self-defense at home. Under Heller, that is all that is needed.” Judge Benitez determined that “the firearms deemed ‘assault weapons’ by California are fairly ordinary, popular, modern rifles,” and concluded that under Heller, the California assault weapon ban is unconstitutional. Judge Benitez also found that under the Ninth Circuit’s own two-step level-of-scrutiny test there was no reasonable fit between the ban and California policy. Judge Benitez also determined that because the AR-15 is a “weapon of light warfare that is commonly owned, commonly trained, with common characteristics, and common interchangeable parts, [the firearm] is protected for militia use by the Second Amendment.”
Judge Benitez therefore enjoined the enforcement of the aforementioned California Penal Code assault weapons statutes and the penalty provisions Sections 30600, 30605 and 30800, as applied to “assault weapons” defined in Code sections 30515(a)(1) through (8).
Ninth Circuit’s Stay of the District Court Order
The State appealed the District Court’s decision. The Ninth Circuit Court of Appeals issued a stay of the District Court’s order and judgment pending appeal. Thus, the assault weapons laws in California remain in effect as before.
For a more detailed discussion of this case, please see Client Alert Vol. 36, No. 11, available at www.jones-mayer.com.
MISCELLANEOUS
Inmate is not eligible for early parole consideration under Proposition 57 if inmate is convicted of violent felony, even if he was convicted of other nonviolent offenses.
In re Ontiveros, 2021 Cal. App. LEXIS 518 (4th Dist. June 21, 2021)
Facts: Proposition 57, the Public Safety and Rehabilitation Act of 2016, amended the California Constitution to provide, in relevant part, that “[a]ny person convicted of a nonviolent felony offense and sentenced to state prison shall be eligible for parole consideration after completing the full term for his or her primary offense.” (Cal. Const., art. I, Section 32(a)(1).)
In 2017, Israel Ontiveros was convicted of multiple felonies and sentenced to state prison in two criminal cases. In the first case, a jury convicted Ontiveros on two counts of assault with a deadly weapon with gang enhancements. Ontiveros admitted suffering a prior serious felony conviction, a “strike” prior, and a prison prior. The trial court sentenced Ontiveros to an effective prison term of 19 years 8 months. In the second case, Ontiveros pled guilty to one count of robbery, and again he admitted a prior serious felony conviction. The trial court sentenced Ontiveros to a term of seven years in prison, to run consecutively with Ontiveros’s sentence in the first case.
Two years later, Ontiveros requested early parole consideration under Proposition 57. The California Department of Corrections and Rehabilitation (“CDCR”) denied his request. The trial court likewise denied his petition for writ of habeas corpus, explaining that, because one of Ontiveros’s convictions was for a violent felony (robbery), he was ineligible for early parole consideration under Proposition 57. Ontiveros petitioned the Fourth District Court of Appeal for habeas relief.
Held: The Fourth District noted that Proposition 57 directed CDCR to “adopt regulations in furtherance of these provisions, and the Secretary of the Department of Corrections and Rehabilitation shall certify that these regulations protect and enhance public safety.”[16] CDCR’s regulations exclude an inmate from early parole consideration if he “is currently serving a term of incarceration for a ‘violent felony.’”[17] The regulations define a violent felony as “a crime or enhancement as defined in subdivision (c) of Section 667.5 of the Penal Code.”[18] The CDCR and the trial court relied on these regulations to deny Ontiveros relief, as his current prison term was based in part on a conviction for robbery, which is a violent felony under Penal Code section 667.5(c)(9).
Ontiveros relied on the Second District’s decision in In re Mohammad, which held that an inmate is eligible for early nonviolent offender parole consideration under Proposition 57 as long as any of the inmate’s current convictions is for a nonviolent offense, even if he was convicted of other, violent offenses.[19] The Attorney General responded that the Second District’s interpretation of Proposition 57 was inconsistent with the intent of the voters and would lead to an absurd result. He relied on two recent opinions disagreeing with Mohammad. (See In re Viehmeyer (4th Dist. 2021) 62 Cal.App.5th 973; In re Douglas (3rd Dist. 2021) 62 Cal.App.5th 726.)
Here, the Court of Appeal joined Viehmeyer and Douglas in disagreeing with Mohammad’s conclusion. The Court explained that even accepting Mohammad’s position that the language of Proposition 57 unambiguously applies to such inmates, such application would lead to the absurd result that an inmate convicted of a violent offense and several nonviolent offenses would be entitled to earlier parole consideration than an inmate convicted of only the violent offense. The Court stated that a policy that rewards inmates for additional convictions was plainly unreasonable and could not have been intended by Proposition 57’s voters. Moreover, the Court found that a literal interpretation of Proposition 57 specifically conflicts with one of its main purposes: to “enhance public safety, improve rehabilitation, and avoid the release of prisoners by federal court order[.]” (Section 32(a).) The Fourth District thus concluded Ontiveros was not entitled to early parole consideration under Proposition 57 and, accordingly, denied his petition.
[1] United States v. Wheeler, 435 U. S. 313, 323 (1978).
[2] Black’s Law Dictionary 1246 (5th ed. 1979); 15 Oxford English Dictionary 887 (2d ed. 1989).
[3] See Black’s Law Dictionary, at 1246; 15 Oxford English Dictionary, at 887.
[4] Georgia v. Randolph, 547 U. S. 103, 109, 115 (2006) (internal quotation marks omitted).
[5] U.S. Const., 4th Amend.; Cal. Const., art. I, Section 13.
[6] People v. Garry, 156 Cal.App.4th 1100 (1st Dist. 2007).
[7] See People v. Perez, 211 Cal.App.3d 1492 (6th Dist. 1989).
[8] Garry, supra, 156 Cal.App.4th at p. 1112.
[9] Government Code section 69920 et seq.; Stats. 2012, ch. 41, Section 27.
[10] Government Code section 69925.
[11] The trial court described the gesture F. demonstrated as stated.
[12] See Penal Code section 30505(a).
[13] Section 30510.
[14] Miller v. Bonta, No. 19-cv-1537-BEN (JLB), 2021 U.S. Dist. LEXIS 105640 (S.D. Cal. June 4, 2021).
[15] The AR-15 rifle was the particular “assault weapon” at issue in this case, though the holding applied more broadly.
[16] Cal Const., art. 1, Section 32(b).
[17] Cal. Code Regs., tit. 15, Section 3490(a)(5).
[18] Id., Section 3490(c).
[19] 42 Cal.App.5th 719, 726 (2nd Dist. 2019), review granted February 19, 2020, S259999.
