Courtesy of James R. Touchstone, Esq., Jones & Mayer


  1. Ninth Circuit denies federal defendants’ motion for stay of preliminary injunction in matter involving use of crowd control measures during Portland protests involving less-lethal munitions against journalists not participating in protests.

Index Newspapers LLC v. United States Marshals Serv., 977 F.3d 817 (9th Cir. 2020)

Facts: Plaintiffs—a newspaper organization and individual journalists, photojournalists, and legal observers who have attended the protests to serve as reporters and recorders—filed a class-action complaint against the City of Portland on June 28, 2020, and subsequently filed an amended complaint joining as defendants the Department of Homeland Security and the United States Marshals Service. The complaint alleged that the City’s response to the protests violated their rights under the First and Fourth Amendments to the United States Constitution, and Article I, Sections 8 and 26 of the Oregon Constitution. Specifically, plaintiffs asserted that although they had not participated in the protests, the local authorities shot them with less-lethal munitions (pepper balls, impact munitions, paint markers, and tear gas canisters), and pepper sprayed, shoved, and otherwise prevented them from recording and reporting on the protests and on law enforcement’s response to the same.  The amended complaint alleged, that the Federal Defendants “intentionally targeted and used physical force and other forms of intimidation against journalists and authorized legal observers for the purpose of preventing or deterring them from observing and reporting on unreasonably aggressive treatment of lawful protestors.”

The district court entered preliminary injunctions against both the City and the federal defendants that regulated the use of crowd-control tactics against journalists and legal observers. The preliminary injunction entered to address the Federal Defendants’ conduct states that journalists and legal observers “shall not be subject to arrest for not dispersing following the issuance of an order to disperse.” The order states that journalists and legal observers may not impede, block, or otherwise physically interfere with the lawful activities of the Federal Defendants, and recognizes that the Federal Defendants are free to issue “otherwise lawful crowd-dispersal orders for a variety of lawful reasons;” i.e. crowd-dispersal orders not issued to clear city streets and sidewalks. The preliminary injunction also requires that journalists and observers “must comply with all laws other than general dispersal orders.” The federal defendants appealed and sought a stay pending appeal.

Held: In ruling on the request for a stay, the Ninth Circuit stated, “the Federal Defendants have not shown a strong likelihood of success on the merits. The Federal Defendants also failed to demonstrate they are likely to suffer irreparable injury if the preliminary injunction is not stayed pending appeal. Accordingly, we deny the Federal Defendants’ emergency motion.”

In dispensing with Defendants’ three arguments asserting a stay was required under the circumstances, the Court noted, “First, their risk of future injury is not speculative. Plaintiffs introduced powerful evidence of the Federal Defendants’ ongoing, sustained pattern of conduct that resulted in numerous injuries to members of the press between the date the complaint was filed and the date the district court entered its preliminary injunction. The district court’s preliminary injunction included twelve pages solely dedicated to factual findings that describe in detail dozens of instances in which the Federal Defendants beat plaintiffs with batons, shot them with impact munitions, and pepper sprayed them.”

The Federal Defendants further argued that plaintiffs were not likely to succeed on the merits of plaintiffs’ retaliation claim because “plaintiffs have not shown their First Amendment activity was a ‘substantial or motivating factor’ in the government’s conduct.”  The Court disagreed, focusing on a declaration filed by plaintiffs supporting the district court’s conclusion that several incidents appeared to be retaliatory in nature and did not reflect appropriate crowd-control tactics.

The Court also observed district court was not persuaded that the Federal Defendants’ response to the plaintiffs was essential or narrowly tailored to serve the government’s interests. The Ninth Circuit agreed that district court’s conclusions were well supported, and the Federal Defendants had not established that they would likely prevail in their efforts to show that the dispersal of press was essential. Nor did the Federal Defendants show that the need to defend federal property made it impossible to tailor their dispersal orders.

In concluding that the Federal Defendants were not likely to suffer irreparable harm if the injunction was not stayed, the Court stated, “the preliminary injunction expressly prohibits journalists and legal observers from impeding, blocking, or otherwise interfering with the lawful conduct of the Federal Defendants. The preliminary injunction leaves the Federal Defendants free to make arrests if there is probable cause to believe a crime has been committed, even if the perpetrator is dressed as a journalist or legal observer. The preliminary injunction also provides that the Federal Defendants will not be liable for violating the injunction if journalists or legal observers remain in the area after a dispersal order [wa]s issued, and [we]re incidentally exposed to crowd-control devices.”

  1. Police officer’s observation of a ‘large and obvious bulge’ that suggested a concealed firearm gave the officer reasonable suspicion to stop defendant.

United States v. Bontemps, 977 F.3d 909 (9th Cir. 2020)

Facts: Vallejo Police Department Detectives Jarrett Tonn and Kevin Barreto were patrolling in a black police SUV. At around 3:51 p.m., the detectives observed a group of four young African American men walking eastbound on Robles Way. As the detectives drove past the group, Barreto noticed that one of the men, Quinton Mills, appeared to be carrying a concealed handgun in the pouch pocket of his sweatshirt. Barreto made a U-turn so that the officers could get a closer look. At this point, the men were walking eastbound on the south side of the street, and the officers were driving five to seven miles per hour westbound. Detective Barreto slowed the vehicle further as they approached the group. Although Barreto already “wasn’t going fast,” he “slowed down fairly rapidly” “so [the officers] could look at them.”

From the passenger seat, Detective Tonn could “very clearly” see the four men on the sidewalk, who were not “very far away” on the other side of the street. Tonn observed that Bontemps, who was walking in front with Mills, also “had obvious indicators of having a firearm.” According to Tonn, based on his “training and experience as a police officer,” both Bontemps and Mills had “bulges in parts of their body” that were “consistent with carrying a firearm in public.”

In particular, Bontemps, who was wearing a light gray sweatshirt that was partially zipped up, “had a very obvious bulge on his left side just above the waist area, kind of halfway maybe between his waist and his left armpit.” Due to this “very large and obvious bulge in Mr. Bontemps’ sweatshirt on his left side above his waist,” as well as Detective Tonn’s training and his encounters with “numerous people with firearms,” Tonn believed Bontemps was carrying a concealed gun.

After the SUV passed by the group, the detectives turned around and pulled up behind the four men, exited the vehicle, and ordered the group to stop and sit on the curb. All four complied. Mills had his hands in his front pocket, where Detective Barreto suspected he was concealing a firearm. Barreto unholstered his service pistol, held it by his side, and told Mills to remove his hands from the pocket. Barreto then ordered Mills to keep his hands up, reached into Mills’s sweatshirt pocket, and removed a 9mm Glock 19 handgun with a live round in the chamber. (A later search uncovered a twenty-two-round magazine with nine live rounds in Mills’s pants pocket.)

The detectives later handcuffed and searched Bontemps, uncovering a loaded .40 caliber Glock 22 handgun concealed in a shoulder holster on the left side of his body. The handgun’s serial number had been drilled off, rendering it unreadable. When officers ran Bontemps’s information, they discovered he was on felony probation for carrying a loaded firearm in public and had an outstanding warrant for a probation violation.

In May 2018, a grand jury returned an indictment charging Bontemps with one count of being a convicted felon in possession of a firearm, in violation of 18 U.S.C. § 922(g)(1). Bontemps moved to suppress the evidence gathered during the stop, including his concealed firearm, on the ground that officers lacked reasonable suspicion to stop him. The district court denied Bontemps’s suppression motion, finding that reasonable suspicion justified the stop. The court determined that the stop began when the detectives exited the SUV and ordered the group to stop and sit on the curb. The court then concluded that “the detectives had an objectively reasonable, articulable suspicion at the stop’s inception” based on the “visible bulge above Bontemps’s waist.”

Held: The Ninth Circuit Court of Appeals observed, “[t]he question in this case is whether police had reasonable suspicion of illegal conduct sufficient to justify the stop. We hold that the district court did not clearly err in crediting an officer’s testimony that he observed on Bontemps a “very large and obvious bulge” that suggested a concealed firearm. We further hold that reasonable suspicion supported the stop. The district court therefore properly denied Bontemps’s motion to suppress evidence found during the search.”

The Court stated, ‘[u]nder Terry v. Ohio, 392 U.S. 1, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968), “an officer may, consistent with the Fourth Amendment, 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, 120 S. Ct. 673, 145 L. Ed. 2d 570 (2000). The Court further noted, “[i]n California, evidence that a person is concealing a firearm provides an adequate basis to suspect illegal activity, and thus grounds to initiate a Terry stop. Circuit precedent is clear on this point. In Foster v. City of Indio, 908 F.3d 1204 (9th Cir. 2018) (per curiam), we held that ‘[w]here state law makes it generally unlawful to carry a concealed weapon without a permit, a tip that a person is carrying a concealed firearm raises a reasonable suspicion of potential criminal activity’ under Terry. Id. at 1215. That is so ‘even if the tip does not state that the person is carrying the firearm illegally or is about to commit a crime.’”  Id.

The Court further agreed that the officers had reasonable suspicion to believe that Bontemps was concealing a firearm. The Court noted that its prior cases “ha[d] given significant weight to an officer’s observation of a visible bulge in an individual’s clothing that could indicate the presence of a weapon.” United States v. Flatter, 456 F.3d 1154, 1157-58 (9th Cir. 2006) (citing United States v. Alvarez, 899 F.2d 833, 835, 839 (9th Cir. 1990); United States v. Allen, 675 F.2d 1373, 1383 (9th Cir. 1980); and United States v. Hill, 545 F.2d 1191, 1193 (9th Cir. 1976)). We have also noted that “[i]n assessing the totality of the circumstances” for reasonable suspicion, “relevant considerations may include: observing a visible bulge in a person’s clothing that could indicate the presence of a weapon.” Thomas v. Dillard, 818 F.3d 864, 877 (9th Cir. 2016) (citing Flatter, 456 F.3d at 1157).  Accordingly, the Court affirmed the district court’s ruling on the motion to suppress.

  1. Government’s warrantless search of child pornography images in defendant’s email was permissible under private search doctrine.

People v. Wilson, 56 Cal. App. 5th 128 (4th Dist. 2020)

Facts: Luke Noel Wilson met minor J.A. when she was 15 years old, and paid J.A. and her adult sister to pose for photographs in a public park. Wilson began contacting J.A. via email, text message, and a photo shoot app proposing that he would pay her to pose in certain ways. Over time, but while she was still a minor, Wilson progressed to paying J.A. to pose for nude and sexually explicit photos. By the time J.A. was 16 or 17 years old, Wilson was paying her to have sexual intercourse with him while he filmed the encounter. J.A. became pregnant with her boyfriend (not Wilson) when she was still 17, and gave birth to her daughter in late 2013, after she turned 18. J.A. continued to accept payments from Wilson for photo shoots during her pregnancy and after giving birth. After Wilson offered to pay her, J.A. sent a video of her sexually abusing her infant daughter, and later photos of her touching her five-year-old cousin.

Wilson used his Gmail email account, hosted by Google, to communicate with J.A., which included emails with his offers to pay J.A. to abuse children. Wilson also distributed child pornography to others via his Gmail account.

Since 2008, Google has used a screening process utilizing a proprietary “hashing” technology to identify apparent child sexual abuse images on its services. Trained Google employees use software to generate a “hash” value for any image file they find depicting child pornography. The hash value is generated by a computer algorithm and consists of a short alphanumeric sequence that is considered unique to the computer file, but cannot be “‘reversed’” to generate the contents of the file itself.[1] The resulting hash values are then added to a repository. The repository therefore contains hash values, not the actual child pornography images.

When a user uploads new content to its services, Google automatically scans and generates hash values for the uploaded files and compares those hash values to all known hash values in the repository. If Google’s system detects a match between a hash value for uploaded content and a hash value in the repository for a file which was previously identified as containing apparent child pornography, the system generates a report to be sent to the National Center for Missing and Exploited Children (“NCMEC”) in the form of a “Cybertip.”[2] In some cases, Google sends the report without opening the image file, while in other cases a Google employee opens the image for manual review to confirm it contains apparent child pornography.

In June 2015, Google’s system identified four image files, each with hash values matching values for apparent child pornography images in its repository, attached to an e-mail created by the Gmail account later identified as belonging to Wilson. Google generated a Cybertip report to NCMEC identifying and forwarding the four image attachments. The report included only the four image files, not the email body text or any other information specific to the email. Google classified the images, using a common categorization matrix, as “A1,” indicating they depicted prepubescent minors engaged in sex acts. The report reflected that a Google employee did not manually review the files after they were flagged using Google’s hashing technology, and before sending them to NCMEC.

NCMEC did not open or view the image files, but forwarded the report to the San Diego Internet Crimes Against Children[3] (“ICAC”) task force after it determined the Internet address associated with the Gmail account was in San Diego.

Using the information contained in the report and based on his review of the images, William Thompson, the ICAC investigator, obtained a search warrant to obtain from Google all content and user information associated with the identified Gmail address. The investigator’s affidavit establishing probable cause for the warrant was premised entirely on his viewing of the images and did not discuss Google’s proprietary hash value technology, the underlying hash value match performed by Google, or even a general overview of this type of computerized matching system.

The warrant resulted in the discovery of Wilson’s emails offering to pay J.A. to molest and exploit children. The investigator also reviewed emails in which Wilson distributed apparent child pornography to others. Using information obtained from Google and from Wilson’s Internet service provider to identify Wilson, the investigator then obtained a search warrant for Wilson’s apartment, computer and related devices. While executing this search warrant, an officer found a thumb drive containing thousands of images of child pornography. J.A. was also identified and located, ultimately leading to additional evidence used against Wilson.

Before trial, Wilson filed a motion to suppress evidence pursuant to Penal Code section 1538.5. Wilson argued the warrantless “search” of the email attachments was illegal, requiring the suppression of those images and all evidence obtained indirectly from the initial warrantless search, including all of his emails, J.A.’s e-mails, and the evidence recovered from his home. After the trial court denied his motion, a jury convicted Wilson of several sex offenses against children. The trial court sentenced Wilson to an indeterminate prison term of 45 years to life. Wilson appealed, arguing, among other things, that the trial court erred in denying his pretrial motion to suppress.

Held: The California Fourth District Court of Appeal observed that “‘[t]he Fourth Amendment proscribes all unreasonable searches and seizures, and […] that “searches conducted outside the judicial process, without prior approval by judge or magistrate, are per se unreasonable under the Fourth Amendment—subject only to a few specifically established and well-delineated exceptions.”’” (Robey v. Superior Court (2013) 56 Cal.4th 1218, 1224.) However, the Fourth Amendment does not apply to private searches. (Burdeau v. McDowell (1921) 256 U.S. 465, 475 [finding that the “origin and history [of the Fourth Amendment] clearly show that it was intended as a restraint upon the activities of sovereign authority, and was not intended to be a limitation upon other than governmental agencies”]; People v. North (1981) 29 Cal.3d 509, 514 [“Historically, courts have consistently held that the Fourth Amendment’s prohibition against unreasonable search and seizure does not apply to searches by private citizens.”].) Moreover, if a government search is preceded by a private search, the government search does not implicate the Fourth Amendment as long as it does not exceed the scope of the initial private search. (United States v. Jacobsen (1984) 466 U.S. 109, 115–117; see Walter v. United States (1980) 447 U.S. 649, 657.)[4]

In Jacobsen, the United States Supreme Court stated that “[o]nce frustration of the original expectation of privacy occurs, the Fourth Amendment does not prohibit governmental use of the now nonprivate information,” and “[t]he Fourth Amendment is implicated only if the authorities use information with respect to which the expectation of privacy has not already been frustrated.” (Jacobsen, supra, at p. 117.) Applying these principles, The Supreme Court held that the government’s actions—in examining and then later testing the white powder originally found by FedEx employees—did not violate the Fourth Amendment, explaining that removal of the plastic bags from the tube and the DEA agent’s visual inspection of their contents enabled the agent to learn nothing that had not previously been learned during the private search by the FedEx employees.

Applying the principles set forth in Jacobsen here, the Fourth District concluded the government’s warrantless search of Wilson’s four images was permissible under the private search doctrine. Google’s private search frustrated Wilson’s expectation of privacy in the files before they were viewed by the government. Google had already identified Wilson’s files as having matching hash values to images that had previously been viewed and identified by a Google employee as apparent child pornography. The Court found that the government’s subsequent opening and viewing of the four photographs did not significantly expand on the search that had previously been conducted by Google. The agent’s actions in opening the files and viewing the images merely confirmed that the flagged files were child pornography, as reflected in Google’s Cybertip report.

After considering and rejecting Wilson’s other contentions, the Fourth District Court of Appeal accordingly affirmed.


  1. Genuine issue of fact existed as to whether defendant used excessive force in briefly kneeling on plaintiff’s back.

Cortesluna v. Leon, 2020 U.S. App. LEXIS 33792 (9th Cir. Oct. 27, 2020)

Facts: In November 2016, police officers Manuel Leon, Daniel Rivas-Villegas, Sergeant Robert Kensic, (“Defendants”) and two other officers of the City of Union City (“City”) Police Department responded to a 911 call.  The police dispatcher reported that a 12-year-old girl said that her mother’s boyfriend had a chainsaw and was trying to hurt her, her sister, and her mother, who were together in a room.  The dispatcher also relayed the girl’s statement that the boyfriend was “always drinking” and was using the chainsaw to break something in the house.  The dispatcher further reported that there had been another potentially related 911 call in the area and that, on that call, crying could be heard, but the caller hung up without speaking.  The sister had described the boyfriend, Ramon Cortesluna, and his clothing to the dispatcher.

When the first three officers, including Rivas-Villegas and Kensic, arrived at the scene, they observed Cortesluna’s home for several minutes and saw that “[Cortesluna] is right here” in his window and “doesn’t have anything in his hand” except, at some points, a beer.  The officers checked with dispatch to confirm that the caller really reported a chainsaw.  The dispatcher acknowledged “we can’t hear [a chainsaw] over the phone” but suggested that Cortesluna could be using the chainsaw “manually,” and that the operator stated that, during the call, she heard sawing sounds in the background, as if the boyfriend were trying to saw the bedroom door down.  Leon arrived at the scene later and may have heard the radioed conversation with the dispatcher.

Another officer told Leon, “so, he’s standing right here drinking a beer.  What do you think [about] just giving him commands, having him come out, and do a protective sweep?”  The officers decided on a plan to approach the house and “breach it with less lethal, if we need to,” a reference to Leon’s beanbag shotgun.

Rivas-Villegas knocked on the front door, stating, “[P]olice department, come to the front door, Union City police, come to the front door.”  A few seconds later, Cortesluna emerged from a sliding glass door holding a large metal object, thought to be a crowbar.  After Cortesluna was ordered to “drop it,” he dropped the object.  Meanwhile, Leon said, “I’m going to hit him with less lethal,” that is, his beanbag shotgun, and told another officer to get out of his way.

Rivas-Villegas then ordered Cortesluna to come out, put his hands up, and walk out towards the officers.  As Cortesluna walked towards them, Rivas-Villegas then said, “Stop.  Get on your knees.”  Cortesluna stopped approximately ten to eleven feet from the officers.  Immediately after Rivas-Villegas’ order, Kensic spotted a knife in the left pocket of Cortesluna’s sweatpants.  Kensic announced that Cortesluna had a knife in his left pocket, and then told Cortesluna, “[D]on’t, don’t put your hands down” and “hands up.”  After Kensic shouted this last order, Cortesluna turned his head toward Kensic, who was on Cortesluna’s left side, (and away from Leon, who was on Cortesluna’s right side) and simultaneously lowered his head and his hands.  Leon immediately shot Cortesluna with a beanbag round from his shotgun and quickly fired a second beanbag shot while Cortesluna’s hands were still in a downward position near his belly, where the first shot hit.  The second shot hit him on the hip.  Roughly two seconds elapsed between Kensic’s “hands up” order and the second shot.

After the second shot, Cortesluna again raised his hands over his head.  The officers ordered him to “[G]et down.”  As Cortesluna was lowering himself to the ground, Rivas-Villegas used his foot to push Cortesluna to the ground.  Rivas-Villegas then pressed his knee into Cortesluna’s back and pulled Cortesluna’s arms behind his back.  Leon handcuffed Cortesluna’s hands while Rivas-Villegas held his position for a few moments.  Rivas-Villegas then lifted Cortesluna up by his handcuffed hands and moved him away from the doorway.

Cortesluna filed a complaint asserting a claim under 42 U.S.C. section 1983 against Leon and Rivas-Villegas for excessive force; a Section 1983 claim against Kensic for failing to intervene and stop the excessive force; and a claim against the City under Monell v. Department of Social Services, 436 U.S. 658 (1978), for the officers’ actions, and other state law claims.

The District Court granted summary judgment to the individual Defendants on the federal claims.  The District Court ruled both that the force used by Leon and Rivas-Villegas was objectively reasonable in the circumstances and that they were entitled to qualified immunity.  The District Court also and ruled that Kensic had no reasonable opportunity to intervene and therefore could not be liable.  With summary judgment granted in favor of the individual Defendants, the District Court dismissed Cortesluna’s claim against the City, as well as the state law claims.  Cortesluna appealed from the summary judgment entered in favor of the individual Defendants and the City.

Held: The Ninth Circuit Court of Appeals affirmed in part, and reversed in part, the District Court’s summary judgment in favor of the defendants and remanded the case for further consideration.

The Court explained that qualified immunity protects individual officers “from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.”  Pearson v. Callahan, 555 U.S. 223, 231 (2009) (internal quotation marks omitted).  In evaluating an assertion of qualified immunity, courts undertake a two-part analysis, asking (1) “whether the facts taken in the light most favorable to the plaintiff show that the officer’s conduct violated a constitutional right,” and (2) whether that right was “clearly established at the time of the officer’s actions, such that any reasonably well-trained officer would have known that his conduct was unlawful.”  Orn v. City of Tacoma, 949 F.3d 1167, 1174 (9th Cir. 2020).

At step one, courts determine whether a reasonable jury could conclude that an officer’s use of force violated the Fourth Amendment by “balancing ‘the nature and quality of the intrusion on the individual’s Fourth Amendment interests against the importance of the governmental interests alleged to justify the intrusion.’”  Id. (quoting Tennessee v. Garner, 471 U.S. 1, 8 (1985)).  The Ninth Circuit stated that the most important factor in this analysis is “whether the suspect posed an immediate threat to the safety of the officers or others.”  C.V. ex rel. Villegas v. City of Anaheim, 823 F.3d 1252, 1255 (9th Cir. 2016) (internal quotation marks omitted).  For this inquiry, courts must view the facts from “the perspective of a reasonable officer on the scene, rather than with the 20/20 vision of hindsight.”  Graham v. Connor, 490 U.S. 386, 396 (1989).

At step two, courts decide whether the officer’s conduct violated “clearly established” law.  Plumhoff v. Rickard, 572 U.S. 765, 768 (2014).  The Supreme Court has repeatedly instructed courts “not to define clearly established law at a high level of generality.”  Ashcroft v. al-Kidd, 563 U.S. 731, 742 (2011).  Existing precedent must already have placed the constitutional or statutory question beyond debate.  Kisela v. Hughes, 138 S. Ct. 1148, 1152 (2018) (per curiam).

The Court of Appeals affirmed the District Court’s summary judgment in favor of Officer Leon.  The Ninth Circuit held that even taking Cortesluna’s version of the facts as true, a reasonable jury would not find a Fourth Amendment violation because Leon’s acts were objectively reasonable under the circumstances.  The Court determined that the alleged crime was severe:  a twelve-year-old girl told a 911 dispatcher that Cortesluna had threatened his girlfriend and her daughters with a chainsaw.  The Court then determined that Officer Leon faced an immediate threat.  The Court noted that Cortesluna had a knife in the left pocket of his pants and had lowered his hands toward his thighs—and thus toward the knife—after which Leon fired a beanbag shotgun.  Finally, the Court determined that Cortesluna’s hands remained near the knife in his pocket at the time of the second beanbag shot.

The Ninth Circuit reversed the summary judgment in favor of Officer Rivas-Villegas.  The Court held that there was a genuine issue of fact as to whether the force that Rivas-Villegas used when he kneeled on Cortesluna’s back when he was lying face down on the ground was excessive.

The Court explained that by the time Rivas-Villegas put pressure on Cortesluna’s back, Cortesluna “no longer posed a risk.”  Cortesluna was lying face down on the ground, experiencing visible pain from having been shot by the two beanbag rounds, and not resisting.  Cortesluna alleged that he thereafter suffered ongoing neck and back pain, headaches, and emotional distress on account of Rivas-Villegas’ actions.

The Court then determined that controlling precedent in LaLonde v. County of Riverside, 204 F.3d 947, 952 (9th Cir. 2000) had by the time of the incident here put officers on notice that kneeling on a prone and non-resisting person’s back so hard as to cause injury was excessive.  In LaLonde, an officer grabbed the plaintiff, knocked him to the ground, straddled him, and handcuffed him.  204 F.3d at 952.  Allegedly, another officer then “forcefully put his knee into LaLonde’s back, causing him significant pain” and a lingering back injury.  Id.  The Ninth Circuit in that case reversed the summary judgment entered in favor of the officers because the allegations, if true, “constitute[d] a clear violation of [LaLonde’s] Fourth Amendment rights.”  Id. at 962.  The Ninth Circuit here observed that both LaLonde and the instant case involved suspects who were lying face-down on the ground and were not resisting either physically or verbally, on whose back the defendant officer leaned with a knee, causing allegedly significant injury.

The LaLonde Court concluded that the officers were not entitled to qualified immunity.  The Ninth Circuit here decided that officers in Rivas-Villegas’ position were thus on notice that their substantially similar conduct was unconstitutional.  Accordingly, the Court concluded that Rivas-Villegas was not entitled to qualified immunity.

Concurring in part and dissenting in part, Judge Collins concurred in the majority opinion insofar as it partially affirmed the District Court’s judgment dismissing Cortesluna’s claims of excessive force in connection with his arrest.  However, Judge Collins disagreed with the majority’s reversal of the judgment in favor of Officer Rivas-Villegas and its partial reversal of the judgment dismissing Cortesluna’s claims against the City.  Judge Collins would have affirmed the judgment in its entirety.

In reaching this conclusion, Judge Collins noted the following:  “After being shot with the beanbag rounds and starting to get on the ground, Cortesluna still had the knife in his left pocket—i.e., on the side where Rivas-Villegas placed his knee.  Using a knee on that side to ensure that Cortesluna stayed down and did not make a motion toward the knife was eminently reasonable in light of what the officers knew about the situation.  Kingsley v. Hendrickson, 576 U.S. 389, 399, 135 S. Ct. 2466, 192 L. Ed. 2d 416 (2015) (“we have stressed that a court must judge the reasonableness of the force used from the perspective and with the knowledge of the defendant officer”).  The majority erroneously discounts the threat presented by the knife, asserting that, because it was “protruding blade-up” in Cortesluna’s pocket, “it would not have been possible for Plaintiff to grab it and attack anyone.”  See Maj. Opin. at 15.  The majority overlooks the fact that, as the videotape makes clear, the knife was loosely sitting in the large pocket of Cortesluna’s baggy pajama bottoms—meaning that Cortesluna could have fit his hand into the pocket to reach the handle.”

For a more detailed discussion of this case, please see Client Alert Vol. 35, No. 32, available at www.jones-mayer.com.

  1. Officer entitled to qualified immunity in officer-involved shooting.

Ventura v. Rutledge, 978 F.3d 1088 (9th Cir. 2020)

Facts: In December 2015, Martha Andrade, the mother of Omar Ventura’s children, called 911 and reported that Omar had hit Andrade and his mother, Plaintiff Maria Ventura.  Andrade also reported that Omar had smashed Andrade’s vehicle’s window.

Police Officer Jennifer Rutledge of the City of Porterville responded to the call, which was classified as a violent domestic disturbance.  When Officer Rutledge arrived at the home, Omar was not present.  While Officer Rutledge interviewed Andrade, Omar started walking up the street toward the home.  Andrade identified Omar to Officer Rutledge, pointing to him and exclaiming “that’s him.”

Andrade moved behind trash cans in the driveway as Omar continued to approach.  Officer Rutledge issued several orders for Omar to “stop.”  Despite these orders, Omar continued to advance toward Andrade and took out a knife from his pocket.  Continuing to approach Andrade with knife in hand, Omar asked, “Is this what you wanted?”  Officer Rutledge then shouted a warning to Omar to “[s]top or I’ll shoot.”  When Omar did not stop, Officer Rutledge fired two shots at him.  The shots killed Omar.  At oral argument before the District Court, the parties agreed that Omar got within 10-15 feet of Andrade before Officer Rutledge fired.

Maria Ventura, individually and on behalf of the Estate of Omar Ventura and the Heirs of Omar Ventura, sued Officer Rutledge and the City of Porterville in Federal District Court arguing, among other things, Fourth Amendment violations based on the shooting of her son.  The District Court granted summary judgment to Officer Rutledge and the City of Porterville based on qualified immunity.  The Court found that no controlling precedent had “clearly establish[ed] that Omar’s right under the Fourth Amendment to be free from the excessive use of deadly force by police would be violated when he was shot and killed as he advanced toward an individual he had earlier that day assaulted, while carrying a drawn knife and while defying specific police orders to stop.”  Ventura appealed.

Held: The Ninth Circuit Court of Appeals explained that “[q]ualified immunity attaches when an [officer’s] conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.”  Kisela v. Hughes, 138 S. Ct. 1148, 1152 (2018) (quoting White v. Pauly, 137 S. Ct. 548, 551 (2017) (per curiam)).  Clearly established law exists when “‘[t]he contours of [a] right [are] sufficiently clear’ that every ‘reasonable [officer] would have understood that what [she] is doing violates that right.’”  Ashcroft v. al-Kidd, 563 U.S. 731, 741 (2011) (first three alterations in original) (quoting Anderson v. Creighton, 483 U.S. 635, 640 (1987)).  The precedent establishing this right must place the question “beyond debate.”  Id.  In the Fourth Amendment excessive force context, “specificity is especially important,” Mullenix v. Luna, 136 S. Ct. 305, 308 (2015), and “thus police officers are entitled to qualified immunity unless existing precedent squarely governs the specific facts at issue,” Kisela, 138 S. Ct. at 1153 (internal quotation marks and citation omitted).

The Court of Appeals stated that it considered two questions in determining whether an officer is entitled to qualified immunity:  (1) whether the facts “taken in the light most favorable to the party asserting the injury show that the officers’ conduct violated a constitutional right” and (2) whether “the right was clearly established at the time of the alleged violation.”  Thompson v. Rahr, 885 F.3d 582, 586 (9th Cir. 2018) (internal quotation marks and brackets omitted) (quoting Saucier v. Katz, 533 U.S. 194, 201 (2001)).  Here, the Court considered only the second question.

Recounting the established undisputed facts, the Ninth Circuit noted that (1) Officer Rutledge was responding to a violent domestic disturbance where Andrade had called 911 to report that Omar had hit her and Plaintiff Maria Ventura and had smashed the window of Andrade’s car; (2) Omar was approaching Andrade with a knife drawn; (3) Omar continued his advance while ignoring multiple commands from Officer Rutledge to stop and a warning that Officer Rutledge would shoot if he failed to stop; and (4) Omar had advanced to within 10-15 feet of Andrade when Officer Rutledge fired.

The Ninth Circuit observed the United States Supreme Court in Kisela considered a similar situation.  It concluded that, as of 2010, it was not clearly established in the Ninth Circuit that the use of deadly force was unconstitutional where the decedent “was armed with a large knife,” had advanced “within striking distance” of another individual, and was ignoring the officer’s orders to drop the knife.  Kisela, 138 S. Ct. at 1154.  The Supreme Court also found that even though the decedent appeared calm and the other woman present did not feel endangered, the shooting officer did not violate clearly established law and was therefore entitled to qualified immunity. Id. at 1151, 1154.

Here, the Court of Appeals determined that Omar posed at least as much of a threat as the decedent in Kisela.  The Court explained that Officer Rutledge was responding to a violent domestic dispute rather than the simple “check welfare” call in KiselaId. at 1155 (Sotomayor, J., dissenting).  Omar had reportedly just physically assaulted Andrade and his own mother and had smashed the window of Andrade’s car.  He ignored Officer Rutledge’s repeated orders to stop and continued to advance toward Andrade with a drawn knife.  The Court thus found that Kisela demonstrated that, as of 2010, there was no clearly established law demonstrating that Officer Rutledge’s use of deadly force was unconstitutional based on these facts and circumstances.

Nor did the Ninth Circuit uncover any intervening case that provided notice to Officer Rutledge that her actions would violate clearly established law.  The Court distinguished and rejected several cases cited by Ventura.  Ventura relied, in part, upon Glenn v. Washington County, 673 F.3d 864 (9th Cir. 2011).  In that case, the Court noted, the decedent had not previously attempted to hurt anyone and had not moved toward anyone else until after he was shot with a beanbag gun.  Id. at 874, 878-79.  In George v. Morris, 736 F.3d 829 (9th Cir. 2013), while the officers were responding to a domestic disturbance call, decedent’s wife had not been previously assaulted, was not near the decedent, and there was a question of material fact as to whether the decedent, who was using a walker, had raised his gun toward the responding officers.  Id. at 832-33, 839.  Lastly, the opinion in Estate of Lopez v. Gelhaus, 871 F.3d 998 (9th Cir. 2017) did not squarely govern the facts before us.  In Gelhaus, an officer shot a teenager who was walking with a toy gun that looked like an AK-47.  Id. at 1002-03.  The teenager was suspected of no crime and was shot when he turned in response to a single order to drop his gun that came from behind.  Id. at 1020-21.  Moreover, the opinion postdated the incident here by two years.

Thus, the Ninth Circuit found that the “degrees of apparent danger in these cases [did] not ‘squarely govern’ the facts here.”  The Court explained that Omar was advancing with a knife toward a woman whom he had reportedly just assaulted.  He ignored Officer Rutledge’s repeated commands to stop and a warning that she would shoot.  The aforementioned cases cited by Ventura did not involve an officer acting under similar circumstances as Officer Rutledge.

The Court therefore concluded that Ventura failed to show that it was clearly established that Officer Rutledge’s actions amounted to constitutionally excessive force.  Accordingly, the Ninth Circuit Court of Appeals concluded that Officer Rutledge was entitled to qualified immunity and affirmed.

For a more detailed discussion of this case, please see Client Alert Vol. 35, No. 31, available at www.jones-mayer.com.


  1. An officer who has extensively reviewed a video may offer a narration, pointing out particulars that a casual observer might not see.

People v. Son, 2020 Cal. App. LEXIS 1068 (4th Dist. Oct. 19, 2020)

Facts: Defendant Troy Son was charged with murder (Pen. Code, § 187, subd. (a)) with an enhancement for the personal use of a deadly weapon (Pen. Code, § 12022, subd. (b)(1)). The jury found defendant guilty of first-degree murder, unanimously finding that the murder was willful, deliberate and premeditated and committed by lying in wait. The jury found the weapon use allegation to be true. Defendant was sentenced to a state prison term of 26 years to life, comprised of 25 years to life for the murder, plus a consecutive one year for the enhancement.

Defendant asserted on appeal that the court committed evidentiary error by permitting a detective to describe the events of a surveillance video that was subsequently watched by the jury.

Held: The trial court did not abuse its discretion, however, as the detective’s narration was admissible lay testimony based on her extensive review of the video.

It was late in the evening on May 19, 2015, when Luis and his friend Jarret were hanging out near Jarret’s house, smoking and drinking beer. They called Bryan Ortega, the victim, to join them. Ortega told them he was on his way. Luis and Ortega were around 20 years old and had been friends since middle school. Luis did not know Ortega to have any enemies and considered him nonviolent.

Jarret went inside his home to use the bathroom. Luis waited outside near Jarret’s home and watched videos on his phone. A man later identified as defendant approached Luis. Defendant wore a black hooded sweatshirt, a hat, and shorts. Defendant asked Luis, “Do you have a cigarette?” Luis told him “no” without looking up from his phone. Defendant walked past Luis and went around the corner.

About three to four minutes later, defendant approached Luis from the same direction as the initial encounter. Defendant asked Luis, “Do you skate?” and “Let’s play skate.” Luis, who had a skateboard, responded, “No.” Defendant walked past Luis and around the corner, out of Luis’s sight.

Shortly afterward, Luis heard screaming, which he thought was “two little kids like play fighting.” Luis heard additional screams and ran around the corner. He saw defendant holding Ortega from the neck. Luis shouted, “Get the fuck off of him.” Defendant “sliced or did something” and ran away.

Luis approached Ortega, who appeared badly hurt. Luis, in a state of shock, picked Ortega up and put him back down. Forgetting about the phone in his pocket, Luis ran to Jarret’s home, banged on the window, and told Jarret to call the police.

The neighbor next door had a security system with four exterior cameras. He heard Ortega scream that evening and came out of his house to find Ortega’s bloodied body on the ground. The police showed up shortly after and the neighbor invited them inside to view the video recording from his surveillance cameras. The police ultimately took the surveillance system from the neighbor’s house.

Detective Ramirez from the Garden Grove Police Department was the lead detective in this case. Detective Ramirez viewed the surveillance video at least 50 times, including about five to 10 times while inside the neighbor’s home. Detective Ramirez primarily focused on the video of the actual attack. A video edited to show only the assault was played at trial.

Detective Ramirez pointed out various aspects of the video that she perceived based on her investigation and repeated viewings. She explained that during the initial attack, defendant made “[a] thrusting motion that appeared to be a stabbing motion.” Defendant made this motion four times at Ortega’s upper body. It appeared that defendant held a shiny object in his right hand during these initial four thrusting motions. Defendant fell on his rear. His right hand swung out and the object he was holding fell to the ground. Defendant and Ortega struggled. Defendant retrieved the object he had dropped. Defendant charged at Ortega and made four or five stabbing or thrusting motions at Ortega’s upper body.

Other portions of the surveillance video showing defendant in the area prior to the assault were played at trial: (1) on May 17, defendant rode a bicycle at about 8:47 p.m. and walked by around 10:33 p.m.; (2) on May 18, defendant walked in the area around 8:51 p.m. and rode a bicycle at 10:37 p.m.; and (3) in the early hours of May 19, defendant walked in the area around 12:38 a.m. and 1:11 a.m. Other than defendant’s comings and goings, Detective Ramirez described the traffic in that area as “minimal to none” during the evening hours.

In dismissing the defense’s argument that the oral testimony violated the secondary evidence rule, the Court stated, “the purpose of Detective Ramirez’s testimony was not to ‘prove the content’ of the video, but instead to highlight important details in the video—details that might otherwise be missed.”

In rejecting the defense’s argument that the detective’s testimony constituted impermissible lay testimony, the Court observed, “[p]reliminarily, we fail to see any opinions expressed in Detective Ramirez’s testimony. She essentially just testified to what she saw. Defendant has not pointed to any portion of her testimony that is disputed. If she had witnessed the actual murder and given the exact same testimony, we certainly would not characterize it as opinion testimony. It would be percipient testimony. Why does it become an opinion just because she saw it in a video?”

The Court agreed with federal precedent which held that “an officer who has extensively reviewed a video may offer a narration, pointing out particulars that a casual observer might not see.” (U.S. v. Torralba-Mendia (9th Cir. 2015) 784 F.3d 652, 659.) It held that the officer’s narration in that case “helped the jury understand the import of the videos.” (Id. at p. 660; see U.S. v. Begay (9th Cir. 1994) 42 F.3d 486, 503 [permitting narration of a video where officer had viewed it 100 times, and stating, “To have the jury do likewise would be an extremely inefficient use of the jury’s and the court’s time.”].) Similarly, here, Detective Ramirez’s testimony helped the jury process the details of the surveillance video.”

[1] Salgado, Fourth Amendment Search and the Power of the Hash, 119 Harv. L.Rev.F. pp. 38-40, (2005).

[2] Under federal law, NCMEC is statutorily obligated to serve as a national clearinghouse and maintain a tip line for Internet service providers to report suspected child sexual exploitation violations. (See 18 U.S.C. section 2258A(c).) NCMEC is statutorily obligated to forward those reports, known as “Cybertips,” to federal law enforcement and may, and often does, forward the reports to state and local law enforcement.

[3] The ICAC task force is an office comprised of individuals from multiple agencies, including the federal Department of Homeland Security and local law enforcement.

[4] The Fourth District noted that “[a]lthough the Fourth Amendment does not apply to a search or seizure, even an arbitrary one, effected by a private party on his own initiative, the Amendment protects against such intrusions if the private party acted as an instrument or agent of the Government.” (Skinner v. Railway Labor Executives’ Assn. (1989) 489 U.S. 602, 614.) In the case here, there had been no argument that Google was an “instrument or agent” of the government.