CPOA CASE SUMMARIES – OCTOBER 2017

Courtesy of James R. Touchstone, Esq.

PEACE OFFICER PERSONNEL RECORDS

Prosecution’s notice to defense counsel that officer’s personnel file contained potential Brady material, combined with defense counsel’s declaration explaining that the officer was the prosecution’s sole witness to the events leading to her client’s arrest and her assertion that the officer’s credibility was material to both a motion to suppress and to trial, was sufficient to trigger in camera review of the file.

 Serrano v. Superior Court, 2017 Cal. App. LEXIS 945 (2d Dist. Oct. 30, 2017)

FactsLos Angeles County Sheriff’s Deputy Adam Halloran performed a traffic stop on Interstate 5 after observing a Jeep twice crossing over into the next lane. The driver of the vehicle was Manuel Serrano. There was one passenger in the vehicle, Homar Romero. According to his police report, Halloran noticed several behaviors which, taken together and considered in light of his law enforcement training and experience, made him suspicious that a crime was occurring beyond the basic traffic violation. Halloran ultimately found approximately 2.5 pounds of cocaine in the vehicle. Upon questioning, Serrano indicated that the drugs belonged to him, so Halloran released Romero at the scene and arrested Serrano.

After the prosecution filed an information against Serrano, charging him with one count of the sale and transportation of a controlled substance, the deputy district attorney advised the public defender that she should file a discovery motion, and that by so recommending he believed was fulfilling his Brady v. Maryland obligations. The deputy district attorney indicated that he learned from searching the office’s online database that Halloran’s personnel file contains potential Brady material.

The public defender filed a motion for pretrial discovery, requesting that all potentially relevant documents in Halloran’s personnel file be presented to the court for in camera review. Serrano argued that the defense is not required to allege officer wrongdoing in order to obtain discovery. Instead, the defense need only assert that there is Brady material in the officer’s personnel file and explain how the officer’s credibility is relevant to the case. In her declaration accompanying the motion, the public defender stated that the credibility of the arresting officer is material both to a motion to suppress and to trial. The Los Angeles Sheriff’s Department and Halloran opposed the motion, arguing that under Pitchess v. Superior Court, the defense must allege officer misconduct, that the allegation is plausible, and that the discovery sought must support a theory of the defense that is logically related to the pending charges. At the trial court’s hearing on the motion, the court concluded that Pitchess requires that defense counsel state upon information and belief how Halloran engaged in acts of misconduct in the case. Since Serrano did not allege officer misconduct, the court denied the motion.

Serrano filed a petition for writ of mandate, requesting that the Court of Appeal direct the trial court to vacate and set aside its ruling denying his motion.

HeldThe Second District Court of Appeal held that Serrano’s counsel’s declaration was sufficient to trigger in camera review of Halloran’s personnel file. The Court noted that Serrano’s counsel stated in her declaration that the prosecutor advised her to file a motion because Halloran’s personnel file contained potential Brady material, explained that Halloran was the sole witness on issues relating to her client, and argued that Halloran’s credibility was material to both a motion to suppress and to trial, which was sufficient to establish Serrano’s claim that Halloran’s file contained potential impeachment evidence that may be material to his defense.

In reaching its decision, the Court, after noting the prosecution’s Brady obligations and outlining Pitchess procedures, and the use of Pitchess motion procedures to obtain Brady material, explained that the case was governed by the California Supreme Court’s decision in People v. Superior Court (Johnson). In Johnson, the Supreme Court concluded that the prosecution fulfills its Brady duty as it relates to a police department’s tip that confidential personnel records of its officers who are potential witnesses in the case might contain exculpatory information if it provides the information to the defense. Then, the defense can decide whether to bring a Pitchess motion. The Supreme Court in Johnson held that the information provided by the police department, combined with some explanation of how the officer’s credibility might be relevant to the case, would satisfy the threshold showing the defendant must make to trigger judicial review of the records under Pitchess procedures.

Applying Johnson to Serrano’s case, the Court noted that Serrano’s motion was supported by a declaration from his counsel that the prosecutor had advised her to file the motion because Halloran’s file contained potential Brady material, that her declaration explained that Halloran was the sole witness on all issues relating to the stop of her client, and that, therefore, Halloran’s credibility was material to a motion to suppress and to trial. Thus, under Johnson, the Court concluded that Serrano’s counsel’s declaration was sufficient to trigger in camera review of Halloran’s file, and the trial court erred in denying Serrano’s motion on the ground that he failed to allege specific misconduct.

The Court granted the petition for writ of mandate and directed the trial court to vacate its order denying the motion for pretrial discovery and to instead issue a new and different order granting the motion.

QUALIFIED IMMUNITY

  1. Sheriff’s deputy entitled to qualified immunity for tasing and fatally shooting decedent where decedent did not have a clearly established right to not be tased or shot by the deputy.

Isaveya v. Sacramento Sheriff’s Dep’t, 872 F.3d 938 (9th Cir. 2017)

FactsIn February 2013, Sacramento County Sheriff’s Department Deputies Corbin Gray and Sean Barry responded to two domestic disturbance calls from the same address in Sacramento, California. The calls concerned Paul Tereschenko, an individual who they were told might have mental health issues, including hearing voices in his head mentioning the killing of others, who was refusing to leave the home. The deputies were informed that Tereschenko may be under the influence of methamphetamine, and that family members did not believe he had any weapons. The family requested that the deputies remove Tereschenko from the home.

The deputies entered the home. They spoke to the father of Tereschenko’s wife, Diana Isaveya, who indicated that Tereschenko had stated something along the lines of wanting to kill Isaveya. The deputies then went into a bedroom, where they found Tereschenko and Isaveya. Tereschenko was over 6 feet tall and weighed more than 250 pounds. His skin appeared pockmarked, he was sweating profusely, he spoke quickly, and he moved his hands rapidly, all symptoms that indicated drug use, specifically methamphetamine, to the deputies. The deputies spoke to Tereschenko for seven to ten minutes. During that time, he told them he was schizophrenic, and also asked the deputies to help him. The deputies repeatedly told him to sit down and calm down, and Tereschenko would sit down, but then get back up again.

As the deputies spoke to Tereschenko, Isaveya, and other family members, Tereschenko started to become agitated. The deputies requested that Isaveya step out of the room. Once she left the room, according to the deputies, Tereschenko got on his knees and told the deputies that they were going to have to shoot or kill him. The deputies decided to detain Tereschenko pursuant to California Welfare and Institutions Code § 5150.

Barry told Tereschenko that he was going to take him to a hospital and asked him to turn around. Tereschenko initially complied, but kept turning back around. Fearing that Tereschenko was reaching for something, Barry grabbed one of his arms and Gray grabbed the other. Tereschenko stiffened his arms and attempted to get his hands free by pushing the officers and resisting Gray’s attempt at a control hold. The deputies told Tereschenko to stop resisting. The deputies, who were smaller than Tereschenko, were getting tossed around as Tereschenko resisted. Barry tased Tereschenko between his shoulder blades in drive-stun gun mode for a five-second cycle.

Tereschenko reacted violently to being tased. Barry lost control of Tereschenko’s arm and was thrown against a wall. Tereschenko then pushed Gray backwards. He then turned back to Barry and hit him repeatedly in the head, face, neck, and back. As he was hit continuously, Barry’s vision became hazy and he started to pass out. Barry jumped backwards toward a bed, where he saw Tereschenko continuing to come toward him with balled fists in the air. Gray got up from the ground and saw Tereschenko standing over Barry, throwing punches at him. Gray tried to reengage Tereschenko by jumping on his back and attempting to place him in a chokehold, but Tereschenko pushed him off. After he was thrown off Tereschenko, Gray heard Barry yell, “Shoot him. Shoot him.” As Gray stood up and started to unholster his gun, Barry fired three shots, killing Tereschenko. Barry had visible injuries from the encounter.

Isaveya filed suit under 42 U.S.C. § 1983, alleging, among other things, that Barry used excessive force when he tased and when he shot Tereschenko. The district court denied summary judgment for Barry, concluding there were genuine disputes of material fact that precluded summary judgment on both qualified immunity and on the merits of the claim. Barry filed an interlocutory appeal, challenging the district court’s ruling on qualified immunity.

HeldThe Ninth Circuit Court of Appeals held that Deputy Barry was entitled to qualified immunity for the tasing and the fatal shooting of Tereschenko because Tereschenko had no clearly established right to not be tased or shot by Barry.

Before addressing Barry’s entitlement to qualified immunity on each claim, the Court explained that the district court misapplied the law on qualified immunity. It explained that the existence of a genuine dispute about the reasonableness of an officer’s use of force does not preclude granting qualified immunity. Rather, qualified immunity involves two questions: (1) whether the defendant violated a constitutional right; and (2) whether the right was clearly established at the time of the alleged violation. The Court noted that it has discretion to choose which prong to address first and, since Barry argued the second prong, that his use of the taser and of deadly force did not violate clearly established law, the Court addressed that prong first. The Court explained that a clearly established right is one that is sufficiently clear that every reasonable official would have understood that what he or she was doing violated that right. Existing precedent must have placed the statutory or constitutional question beyond debate.

The Court first addressed Barry’s use of the taser. The Court outlined the facts leading up to Barry tasing Tereschenko in drive-stun mode for a five-second cycle. It then explained that, at the time of the incident in February 2013, there were three key published Ninth Circuit cases that established when the use of a taser was unreasonable under the Fourth Amendment—Bryan v. Macpherson, Brooks v. Seattle and Mattos v. Agarano. The Court reviewed the facts of each case, and found each factually distinguishable from the facts involved in Tereschenko’s incident. Due to the differences between the cases, the Court found that none of the cases clearly established in February 2013 that tasing Tereschenko would violate the Fourth Amendment. Because the cases neither separately nor together put the constitutionality of Barry’s actions “beyond debate,” the Court held that Tereschenko did not have a clearly established right that was violated by Barry’s use of the taser. Therefore, the Court concluded that Barry was entitled to qualified immunity for the tasing.

Next, the Court addressed Barry’s use of deadly force against Tereschenko. The Court outlined the facts after the tasing, construing them in Isaveya’s favor. Despite Isaveya’s argument to the contrary, the Court concluded there were no existing precedents that suggested that Barry’s use of deadly force violated any clearly established right held by Tereschenko. The Court further concluded that the use of force was not obviously unlawful. It noted there were strong reasons to believe that Tereschenko posed a risk of death or serious injuries to the officers or family members, that Barry began to pass out when he was being beaten, which could have turned the fight into a potentially deadly one, and that the information the deputies had made Tereschenko more threatening than indicated by his physical abilities.

Given the circumstances of the case, the Court found that it was not clearly established that Tereschenko had a right to be free from deadly force by Barry. Because Tereschenko had no clearly established right to not be tased or shot by Barry, the Court held that Barry was entitled to qualified immunity for the tasing and fatal shooting of Tereschenko.

  1. Las Vegas Metropolitan Police Department Officers not entitled to qualified immunity for arrestee’s death following prolonged tasing.

Jones v. Las Vegas Metro. Police Dep’t, 873 F.3d 1123 (9th Cir. 2017)

Facts:  On December 11, 2010, Las Vegas police officers pulled over suspect Anthony Jones for a routine traffic stop. Jones, who was much larger than the officers, fled from police on foot. Officer Mark Hatten used his Taser twice to subdue Jones while he waited for backup officers to arrive. Use of the Taser caused Jones’s body to lock up and fall face first onto the ground. While Jones was on the ground, Hatten continued to use his Taser in drive-stun mode, repeatedly activating the Taser on Jones’s thigh while kneeling on Jones’s back in an attempt to handcuff Jones. Four backup officers arrived to assist taking Jones into custody. One of the backup officers, Officer English, deployed his Taser in drive-stun mode to Jones’s upper back. When the fourth backup officer, Officer Johnson, arrived, he ordered that the use of the Tasers cease.   According to Johnson, Jones “‘didn’t look like he was physically resisting’” and there were “‘enough officers’” to take Jones into custody.

In total, officers subjected Jones to over 90 seconds of Taser application. Hatten tased Jones essentially the whole time he had him on the ground, with some applications lasting 19 seconds.  English tased Jones for 10 seconds, simultaneously while Hatten tased Jones. Once officers stopped tasing Jones, his body went limp and Jones was non-responsive. Despite resuscitation efforts, Jones was pronounced dead at the scene. The coroner subsequently concluded that police restraint procedures, including the use of the Tasers, contributed to Jones’s death.

Jones’s parents sued the Las Vegas Metropolitan Police Department and the individual officers involved in federal court. The court granted summary judgment for the defendants, and the plaintiffs appealed.

HeldThe Ninth Circuit Court of Appeals reversed the grant of summary judgment, finding that a reasonable jury could conclude that the officers used excessive force in violation of the Fourth Amendment when they continued to tase Jones once he was surrounded by police. The Court further found that the law was clearly established that extended Taser use under these circumstances would violate the Fourth Amendment.

The Ninth Circuit held that the initial use of the Taser to apprehend Jones was reasonable under the circumstances. However, the justification for the continued use of the Taser “waned” while Jones was surrounded by police, and lying face down during the handcuffing process, and a reasonable jury could find that the officers used unreasonable force. The Court noted that Jones did not appear to be physically resisting during the time he was on the ground, did not appear to be armed and did not appear to make any threatening statements or gestures. Moreover, the Court stated that Taser International had previously warned that repeated applications of the Taser could increase the risk of serious injury or death. Finally, the Court observed that Hatten testified that Department training, while not forbidding repeated use of the Taser, discouraged such actions and that officers were trained that repeated use of the Taser could contribute to the risk of serious bodily injury or death when certain risk factors were present. These risk factors included when a subject struggles, was overweight or using drugs or alcohol. The Court noted that Jones exhibited two of these risk factors in that he struggled and was overweight.

The Ninth Circuit also held, with respect to the tasing, that “any reasonable officer should have known that such use can only be justified by an immediate or significant risk of serious injury or death to officers or the public.” Further, “[s]uch force generally can’t be used on a prone suspect who exhibits no resistance, carries no weapon, is surrounded by sufficient officers to restrain him and is not suspected of a violent crime.” The Court noted that the officers should have known that their actions could have contributed to the risk of serious bodily injury or death to Jones based on all of the facts of the case. Accordingly, they were not entitled to qualified immunity.

For a more detailed discussion relating to this case, please see Client Alert Vol. 32, No. 31, authored by James R. Touchstone and Keith F. Collins and available at www.jones-mayer.com.

PROPOSITION 57

The provision of Proposition 57 requiring a juvenile transfer hearing does not apply retroactively to juvenile homicide offender sentenced prior to the act’s effective date to life in prison without the possibility of parole.

People v. Navarra, 16 Cal. App. 5th 173 (5th Dist. 2017)

FactsBrittany Navarra was 16 years old when Krista Pike was killed in 2008. Navarra was charged with aiding and abetting the murder, and was subject to the discretionary filing provisions of former Welfare and Institutions Code section 707, which gave prosecutors the discretion to bring specified charges against certain minors directly in criminal court, without a prior adjudication by the juvenile court that the minor was unfit for disposition under the juvenile court law.

Navarra was convicted, following a jury trial, of first degree murder, with a lying-in-wait special circumstance, first degree burglary, and conspiracy to commit murder in September 2014. She was sentenced to life in prison without the possibility of parole (LWOP) in February 2015. She filed an appeal on the same day she was sentenced.

In November 2015, California voters enacted Proposition 57, which, among other things and relevant to Navarra’s petition for rehearing before the Court of Appeal, eliminated the prosecution’s ability to initiate criminal cases against juvenile offenders anywhere but in juvenile court, and further removed the presumption of unfitness that previously attached to the alleged commission of certain offenses.

After the Court of Appeal affirmed Navarra’s conviction, she petitioned for rehearing, arguing, among other things, that Proposition 57 applied retroactively to her case and required that she be afforded a conditional reversal of judgment and remand for a fitness/transfer hearing in juvenile court. The Court of Appeal granted rehearing to determine whether Navarra was entitled to relief under Proposition 57.

The question before the Court of Appeal was whether Proposition 57 applied to juvenile offenders who were charged, tried, convicted, and sentenced before Proposition 57’s effective date, but whose cases were not final on appeal.

Held:  The Fifth District Court of Appeal held that the provision of Proposition 57 requiring a juvenile transfer hearing did not apply retroactively to Navarra’s case. In reaching its decision, the Court explained that, in determining whether a statute should be applied retroactively, the intent of the electorate or the Legislature is the paramount consideration. It explained that in interpreting a voter initiative, the Court applies the same principles that govern statutory construction. It noted that it is well settled that a new statute is presumed to operate prospectively absent an express declaration of retrospectivity or a clear indication that the electorate or the Legislature intended otherwise. Reviewing Proposition 57, the Court explained that the provisions affecting juvenile offenders contain no express statement regarding retroactivity. Citing case law, the Court noted that a statute that is silent with respect to retroactive application is construed to be unambiguously prospective.

Next, citing In re Estrada and People v. Brown, the Court explained that the California Supreme Court has made it clear that Estrada supports the “contextually specific qualification to the ordinary presumption that statutes operate prospectively: When the Legislature has amended a statute to reduce the punishment for a particular criminal offense, [the court] will assume, absent evidence to the contrary, that the Legislature intended the amended statute to apply to all defendants whose judgments were not yet final on the statute’s operative date.” Applying this principle to Proposition 57, the Court explained that no provision of Proposition 57 mitigates the penalty for a particular criminal offense. Thus, the Court found that the strong presumption of prospective-only application of statutes was not overcome, and affirmed the judgment.

NEW LEGISLATION

Governor Brown signs into law Senate Bill 54, which limits ways in which law enforcement can cooperate with federal immigration enforcement.

On October 5, 2017, Governor Jerry Brown signed into law Senate Bill (SB) 54, which, among other things, and subject to exceptions, prohibits state and local law enforcement agencies from using money or personnel for specified immigration enforcement purposes. The bill makes amendments to the Trust Act and enacts the California Values Act.  The legislation is effective January 1, 2018.

Amendments to Trust Act

SB 54 amends the Trust Act in several ways, including:

  • Removing express authorization to honor an immigration detainer under specified circumstances and instead providing that a law enforcement official shall have the discretion to cooperate with immigration authorities only if doing so would not violate any federal, state or local law, or local policy, and where permitted by the California Values Act.
  • Providing that a local agency may respond to a request for notification or transfer an inmate if the person has been convicted of a Trust Act crime, which includes a serious or violent felony, a felony punishable by imprisonment in state prison, a misdemeanor as part of a “wobbler” within the past five years, or a felony for one of the numerous offenses outlined in Government Code section 7282.5(a)(3) within the last 15 years.
  • Providing that no cooperation with immigration authorities shall occur for individuals arrested, detained, or convicted of misdemeanors that were previously felonies or wobblers prior to the passage of Proposition 47.
  • Allowing local law enforcement officials to respond to a request for notification from immigration authorities if an individual has been arrested for a serious or violent felony or a felony punishable by imprisonment in state prison if the individual is taken before a magistrate and the magistrate makes a finding of probable cause pursuant to California Penal Code section 872.

Enactment of California Values Act

In enacting the California Values Act (the “Act”), the Legislature now prohibits California law enforcement agencies from:

  • Using agency or department money or personnel to investigate, interrogate, detain, detect, or arrest persons for immigration enforcement purposes, including:
  • inquiring into an individual’s immigration status;
  • detaining an individual on the basis of a hold request;
  • providing information regarding a person’s release date or responding to requests for notification by providing release dates or other information, unless such information is available to the public or is in response to a notification request from immigration authorities in accordance with Section 7282.5;
  • providing personal information about an individual, including but not limited to the individual’s home address or work address, unless that information is available to the public;
  • making or intentionally participating in arrests based on civil immigration warrants;
  • assisting immigration authorities in the activities described in 8 U.S.C. §1357(a)(3); and
  • performing the functions of an immigration officer.
  • Placing peace officers under the supervision of federal agencies, or employing peace officers deputized as special federal officers or special federal deputies for purposes of immigration enforcement.
  • Using immigration authorities as interpreters for law enforcement matters relating to individuals in custody.
  • Transferring an individual to immigration authorities unless authorized by judicial warrant, a judicial probable cause determination, or in accordance with Section 7282.5.
  • Providing office space exclusively dedicated for immigration authorities for use within a city or county law enforcement facility.
  • Contracting with the federal government for use of California law enforcement facilities to house individuals as federal detainees, except pursuant to Chapter 17.8.

The Act further clarifies that, provided that doing so does not violate any local law or policy of the jurisdiction or law enforcement agency, law enforcement agencies are not prohibited from:

  • Investigating, enforcing, detaining, or arresting an individual who unlawfully enters or attempts to reenter the United States following removal based upon conviction of a federal aggravated felony, provided that such entry or attempted reentry is detected during unrelated law enforcement activity.
  • Responding to a request for information about a specific individual’s criminal history where otherwise permitted by law.
  • Conducting enforcement or investigative duties in connection with a joint law enforcement task force, provided that certain conditions are met.
  • Making inquiries into information necessary to certify an individual who has been identified as a potential crime or trafficking victim for a T or U Visa.
  • Giving immigration authorities access to interview an individual in custody. Such access must comply with the requirements of the TRUTH Act.

The Act sets forth reporting requirements for law enforcement agencies that elect to participate in a joint law enforcement task force, and additional reporting requirements for the Attorney General beginning March 1, 2019.

Finally, SB 54 repeals Health and Safety Code section 11369, which requires arresting agencies to notify immigration authorities when a person is arrested for specified drug offenses and there is a reason to believe that such person may not be a United States citizen.

For a more detailed discussion relating to this legislation, please see Client Alert Vol. 32, No. 30, authored by James R. Touchstone and available at www.jones-mayer.com.

 





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