Courtesy of James R. Touchstone, Esq.
CPOA CASE SUMMARIES – OCTOBER 2021
CONSTITUTIONAL LAW/POLICE CONDUCT
Even assuming a police officer testified falsely during administrative proceedings, there was no due process violation because plaintiff was granted a second administrative hearing that voided his license suspension.
Miranda v. City of Casa Grande, 2021 U.S. App. LEXIS 31331 (9th Cir. Oct. 19, 2021)
Facts: In July 2017, Officer Richard Rush of the Casa Grande, Arizona Police Department arrested an intoxicated Adrian Miranda after Miranda failed to comply with repeated officer orders to exit his vehicle stopped in a vehicle lane of traffic before finally doing so, wherein he showed signs of intoxication. Later at the Casa Grande police station, Miranda admitted to having consumed six beers and a breath test revealed a blood alcohol content of 0.137%. Miranda was placed under arrest for driving under the influence (“DUI”). Under Arizona’s implied consent law, a person who operates a motor vehicle in the state consents to blood tests if arrested on suspicion of a DUI. Miranda refused Officer Rush’s repeated requests for consent to testing, though Miranda was warned after his first refusal that his Arizona driving privileges would be suspended for twelve months. Later, however, Miranda stated to Officer McKinney, “Can you let them know I’m doing the blood work?” Officer McKinney told Officer Rush that Miranda had said “he’s doing bloodwork.” Miranda’s blood test revealed a blood alcohol concentration above the legal limit for driving or physically controlling a motor vehicle in Arizona. Miranda was charged with DUI. Miranda later pled guilty to disorderly conduct and failure to comply with law enforcement in exchange for dismissal of the DUI.
Arizona law afforded Miranda the opportunity to contest his driver’s license suspension in a hearing before a state administrative law judge (“ALJ”), which he did. At the hearing, Officer Rush testified that at no point did Miranda change his mind and say that he would take the blood test. The ALJ found Officer Rush sufficiently credible, and found that Miranda declined to submit to the blood test and did not change his mind. The ALJ suspended Miranda’s license for twelve months. Subsequently, Miranda learned of Casa Grande Police Department surveillance video footage that showed him telling Officer McKinney of his willingness to undergo a blood draw. At a second administrative hearing before a different ALJ, the ALJ found that Officer McKinney’s statements were “a clear advisement” that Miranda had recanted his refusal, and had in the end voluntarily submitted to the blood draw. The second ALJ thus voided Miranda’s license suspension.
Miranda sued the City of Casa Grande and Officer Rush, alleging several claims under state law, and a 42 U.S.C. section 1983 count against Officer Rush. Miranda alleged that Rush lied under oath to the ALJ, and thereby deprived Miranda of his right to procedural due process under the Fourteenth Amendment. A federal District Court granted the defendants summary judgment on the Section 1983 claim, and remanded remaining state law claims to state court. Miranda appealed, arguing that Officer Rush’s “deliberately false testimony” violated due process because it led to the temporary suspension of his driver’s license.
Held: The Ninth Circuit Court of Appeals affirmed. The Court first noted that there is no express constitutional guarantee or other federal right to a driver’s license, so that its deprivation does not violate substantive due process. Miranda’s claim therefore sounded, if at all, in procedural due process. A procedural due process claim has two elements: “(1) a deprivation of a constitutionally protected liberty or property interest, and (2) a denial of adequate procedural protections.”[1] The Court noted that the touchstone of procedural due process is notice and an opportunity to be heard.[2]
The Court held that Miranda failed to demonstrate a procedural due process violation because, even assuming Officer Rush testified falsely at the administrative hearing as to whether Miranda consented to a blood test following his arrest for driving under the influence, Arizona provided sufficient post-deprivation process to Miranda. The Court noted that, following the discovery of the officer’s alleged unauthorized conduct, Miranda was granted a second administrative hearing before a new ALJ, who ultimately voided the suspension and reinstated Miranda’s license. Moreover, Arizona also allowed Miranda to bring a state law claim, which he was pursuing in Arizona state court. The Court held that the post-deprivation procedures were both meaningful and sufficient under the Due Process Clause. The Ninth Circuit explained that because Arizona had provided Miranda with sufficient post-deprivation mechanisms, Miranda could not demonstrate a procedural due process violation and had “received all the process that was due.” Raditch v. United States, 929 F.2d 478, 480 (9th Cir. 1991). Thus, Miranda’s Section 1983 claim failed.
QUALIFIED IMMUNITY
A. Supreme Court reverses Ninth Circuit’s decision to deny officer qualified immunity.
Rivas-Villegas v. Cortesluna, 2021 U.S. LEXIS 5311 (Oct. 18, 2021)
Facts: Daniel Rivas-Villegas, a Union City police officer, and four other officers responded to a 911 call reporting that a woman and her two daughters had shut themselves into a room in their house because the mother’s boyfriend, Ramon Cortesluna, was trying to hurt them. Cortesluna, complying with officer commands, walked out of the house towards the officers with his hands up before stopping 10 to 11 feet from the officers. An officer then saw a knife sticking out from the front left pocket of Cortesluna’s pants, and announced the same to the other officers. Although Cortesluna was told not to put his hands down, Cortesluna lowered his head and his hands in contravention of the officer’s orders. An officer twice shot Cortesluna with a beanbag shotgun, once in the lower stomach and once in the left hip. Cortesluna then complied with officer orders to get down. Officer Rivas-Villegas then placed his left knee on the left side of Cortesluna’s back, near where Cortesluna had a knife in his pocket, while raising both of Cortesluna’s arms up behind his back. Officer Rivas-Villegas was in this position for no more than eight seconds before standing up while continuing to hold Cortesluna’s arms. Another officer, who had just removed the knife from Cortesluna’s pocket and tossed it away, handcuffed Cortesluna.
Cortesluna sued under 42 U. S. C. 1983, claiming, as relevant here, that Officer Rivas-Villegas used excessive force in violation of the Fourth Amendment in kneeling on his back. The District Court granted summary judgment to Officer Rivas-Villegas. Relying solely on LaLonde v. County of Riverside,[3] the Ninth Circuit Court of Appeals reversed, holding that Officer Rivas-Villegas was not entitled to qualified immunity because LaLonde put him on notice that his conduct constituted excessive force.
Held: The United States Supreme Court explained that “[q]ualified immunity attaches when an official’s conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.” White v. Pauly, 580 U. S. ___, ___ (2017) (per curiam) (slip op., at 6) (internal quotation marks omitted). Although Supreme Court case law “does not require a case directly on point for a right to be clearly established, existing precedent must have placed the statutory or constitutional question beyond debate.” Id. (alterations and internal quotation marks omitted). The Supreme Court determined that to show a violation of clearly established law here, Cortesluna had to identify a case that put Officer Rivas-Villegas on notice that his specific conduct was unlawful.
The Supreme Court found that the situation in LaLonde and the situation at issue here differed in several significant aspects. In LaLonde, officers were responding to a noise complaint, whereas here they were responding to a serious alleged incident of domestic violence possibly involving a chainsaw. LaLonde was unarmed, whereas Cortesluna had a knife protruding from his left pocket for which he had just previously appeared to reach. Also, Officer Rivas-Villegas placed his knee on Cortesluna’s back for no more than eight seconds and only on the side of his back near the knife that officers were in the process of retrieving. LaLonde, in contrast, testified that the officer deliberately dug his knee into his back when he had no weapon and had made no threat when approached by police. The Supreme Court found that these facts, considered together in the context of this particular arrest, materially distinguished the case here from LaLonde. LaLonde thus did not govern the facts of this case. The Court concluded that on the facts here, neither LaLonde nor any decision of the Supreme Court was sufficiently similar. Accordingly, the Supreme Court granted Officer Rivas-Villegas’ petition for certiorari and reversed the Ninth Circuit’s decision to deny him qualified immunity.
For a more detailed discussion of this case, please see Client Alert Vol. 36, No. 19, available at www.jones-mayer.com.
B. Supreme Court concludes that police officers did not violate any clearly established law, and were thus entitled to qualified immunity.
City of Tahlequah v. Bond, 2021 U.S. LEXIS 5310 (Oct. 18, 2021)
Facts: In August 2016, police officers Josh Girdner, Chase Reed, and Brandon Vick responded to a 911 call from the ex-wife of Dominic Rollice, who reported that an intoxicated Rollice was in her garage and would not leave. Joy requested police assistance. The officers encountered Rollice and began speaking with him in the garage doorway. Rollice began fidgeting with something in his hands and the officers noticed that he appeared nervous. Officer Girdner asked if he could pat Rollice down for weapons, but Rollice refused. Police body-camera video captured the events that followed. As the conversation continued, Officer Girdner gestured with his hands and took one step toward the doorway, causing Rollice to take one step back. Rollice turned around and walked toward the back of the garage where his tools were hanging. Officer Girdner followed, with the others close behind. No officer was within six feet of Rollice. Although officers ordered Rollice to stop, Rollice kept walking, grabbed a hammer from the back wall and turned around to face the officers. He grasped the handle of the hammer with both hands, as if preparing to swing a baseball bat, and pulled it up to shoulder level. The officers backed up, drawing their guns. The officers can be heard on video yelling at Rollice to drop the hammer, but Rollice did not do so. He took a few steps to his right, coming out from behind a piece of furniture so that he had an unobstructed path to Officer Girdner. He then raised the hammer higher back behind his head and took a stance as if he was about to throw the hammer or charge at the officers. In response, Officers Girdner and Vick fired their weapons, killing Rollice.
Rollice’s estate filed suit against, among others, Officers Girdner and Vick, alleging that the officers were liable under 42 U. S. C. section 1983 for violating Rollice’s Fourth Amendment right to be free from excessive force. The District Court granted the officers’ motion for summary judgment, both on the merits and on qualified immunity grounds. The Tenth Circuit Court of Appeals reversed. As to qualified immunity, the Tenth Circuit concluded that several cases clearly established that the officers’ conduct was unlawful. The officers petitioned for writ of certiorari.
Held: The Supreme Court of the United States explained that on the record here, “the officers plainly did not violate any clearly established law.” The Court observed that the doctrine of qualified immunity shields officers from civil liability so long 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). The Court explained that it is not enough that a rule be suggested by then-existing precedent; the “rule’s contours must be so well defined that it is ‘clear to a reasonable officer that his conduct was unlawful in the situation he confronted.’” District of Columbia v. Wesby, 583 U. S. ___, ___ -___ (2018) (slip op., at 14) (quoting Saucier v. Katz, 533 U. S. 194, 202 (2001)). Such specificity is “especially important in the Fourth Amendment context,” where it is “sometimes difficult for an officer to determine how the relevant legal doctrine, here excessive force, will apply to the factual situation the officer confronts.” Mullenix v. Luna, 577 U. S. 7, 12 (2015) (per curiam) (internal quotation marks omitted).
The Supreme Court stated that the Tenth Circuit contravened those settled principles here. The high court stated that none of the decisions[4] upon which the Court of Appeals relied came close to establishing that the officers’ conduct was unlawful. Because neither the Circuit Court majority nor Rollice’s estate had identified any precedent finding a Fourth Amendment violation under similar circumstances, the Supreme Court concluded that the police officers “plainly” did not violate any clearly established law. The officers were therefore entitled to qualified immunity. Accordingly, the Supreme Court granted the officers’ petition for certiorari, as well as the motions for leave to file briefs amici curiae, and reversed the judgment of the Court of Appeals.
For a more detailed discussion of this case, please see Client Alert Vol. 36, No. 22, available at www.jones-mayer.com.
EMPLOYMENT
In a Fair Employment and Housing Act claim, an arbitration agreement cannot award fees to a defendant without a showing that the claim was frivolous.
Patterson v. Superior Court, 2021 Cal. App. LEXIS 863 (2nd Dist. Oct. 18, 2021)
Facts: Michael Patterson, a former employee of real party in interest Charter Communications, Inc., sued Charter in April 2020 under the California Fair Employment and Housing Act (“FEHA”) (Government Code section 12900 et seq.) for claims related to alleged sexual harassment. Charter moved to compel arbitration of Patterson’s FEHA claims pursuant to the parties’ written agreement to arbitrate all employment-related disputes. The superior court granted Charter’s motion to compel. Charter then moved for an award of attorney fees incurred in moving to compel arbitration on the ground that Charter was the prevailing party and the arbitration agreement had an attorneys’ fees provision specifically providing such relief to the prevailing party on a motion to enforce the agreement.[5] The superior court granted Charter’s motion. In May 2021, Patterson filed a petition for writ of mandate. He argued, as relevant here, that the superior court had erred in awarding attorney fees because FEHA does not permit an employer to shift attorney fees to a plaintiff employee unless the employee’s actions were objectively frivolous.
Held: The California Second District noted that in actions under FEHA, a successful plaintiff is entitled to recover his or her reasonable attorney fees. A prevailing defendant, however, may not be awarded attorney fees or costs “unless the court finds the action was frivolous, unreasonable, or groundless when brought, or the plaintiff continued to litigate after it clearly became so.” (Government Code section 12965(b).) This is an asymmetric standard aligned with the intentions of the Legislature and Congress “‘to encourage persons injured by discrimination to seek judicial relief.’”[6] The Second District explained that FEHA claims may be included in a predispute arbitration agreement, but an employer that seeks to compel arbitration of FEHA claims may not limit statutorily imposed remedies or require the employee to bear any type of expense that the employee would not be required to bear if he or she were free to bring the action in court. Armendariz v. Foundation Health Psychcare Services, Inc. (2000) 24 Cal.4th 83, 103, 110–111 (italics removed). “[A]n arbitration agreement cannot be made to serve as a vehicle for the waiver of statutory rights created by the FEHA.” (Id. at p. 101.)
The Court explained that because a fee-shifting clause directed to a motion to compel arbitration, like a general prevailing party fee provision, risks chilling an employee’s access to court in a FEHA case absent Section 12965(b)’s asymmetric standard for an award of fees, a prevailing defendant may recover fees in this situation only if it demonstrates the plaintiff’s opposition was groundless.
The Court observed here that no such finding was made by the superior court before awarding Charter its attorney fees after granting Charter’s motion to compel. The Second District Court of Appeal accordingly granted Patterson’s petition for writ, and directed the superior court to vacate its order awarding attorney fees to Charter and to conduct a new hearing to reconsider Charter’s motion for attorney fees.
MISCELLANEOUS
A. California Assembly Bill 32 impedes federal immigration policy.
GEO Grp., Inc. v. Newsom, 2021 U.S. App. LEXIS 29898 (9th Cir. Oct. 5, 2021)
Facts: California Governor Gavin Newsom signed AB 32 into law, which bans private detention facilities in California within this decade. The United States Immigration and Customs Enforcement (“ICE”) does not build or operate any immigration detention facilities because of seasonal and other fluctuations in immigration. ICE relies exclusively on privately operated detention facilities, including some facilities in California. The GEO Group, Inc., is a company that contracted with the federal government in 2019 to operate two private immigration detention centers in California. Shortly after the passage of AB 32, the United States and GEO Group (“Appellants”) sued Governor Newsom and then-Attorney General Xavier Becerra (collectively, “California”), seeking a preliminary and permanent injunction against AB 32. They argued that AB 32 conflicted with federal law and violated the intergovernmental-immunity doctrine. California moved to dismiss GEO’s complaint and for a judgment on the pleadings for the federal government’s complaint. The District Court granted California’s motions, found that Appellants were unlikely to succeed on the merits, and denied the request for a preliminary injunction. The District Court held that the wellbeing of detainees falls within a state’s traditional police powers.
Held: The Ninth Circuit Court of Appeals explained that the Supremacy Clause of the United States Constitution makes the laws of the United States “the supreme Law of the Land.” U.S. Const. art. VI, cl. 2. A state law cannot stand if “the challenged [state] law stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress.”[7] “[T]he purpose of Congress is the ultimate touchstone in every pre-emption case.” Wyeth v. Levine, 555 U.S. 555, 565 (2009). (quoting Medtronic, Inc. v. Lohr, 518 U.S. 470, 485 (1996)) (internal quotations omitted). Under the presumption against preemption, courts should assume that federal law does not supersede the historic police powers of the states “unless that was the clear and manifest purpose of Congress.” Id. (quoting Medtronic, 518 U.S. at 485).
The Ninth Circuit concluded that the presumption against preemption did not apply to AB 32, and that the District Court erred in applying it here. From AB 32’s statutory language as well as its context, the Ninth Circuit concluded that California law regulated the federal government’s detention of undocumented and other removable immigrants. The Court observed that Penal Code sections 9500 and 9501 (added by AB 32) prohibit operating a detention facility “pursuant to a contract . . . with a governmental entity,” but the text did not limit “governmental entity” to only state or local governments – it also purposefully included the federal government, which detains thousands of people within California. The Court stated that AB 32’s intentional inclusion of the federal government contrasted with other Penal Code provisions that apply to the treatment of people held only in state prisons or county jails. Thus, the Court found that the plain language of AB 32 targeted mainly the federal government and its detention policies. The Ninth Circuit also concluded that California had not historically regulated the conditions of detainees in federal custody, and specifically those housed in immigrant detention centers, because the federal government exclusively regulates immigration detention and removals.[8] Moreover, the Ninth Circuit explained that Congress unambiguously granted the DHS Secretary broad discretion over immigrant detention, including the right to contract with private companies to operate detention facilities.[9] The Court declared that AB 32 conflicted with the Secretary’s statutory power to contract with private detention facilities. AB 32 thus could not stand because it conflicted with this federal power and discretion given to the Secretary in an area that remains in the exclusive realm of the federal government, and barred the Secretary from doing what federal immigration law explicitly permits the Secretary to do.
The Ninth Circuit also held that AB 32 discriminated against the federal government in violation of the intergovernmental-immunity doctrine. Under the intergovernmental-immunity doctrine, a state may not “regulate[] the United States directly or discriminate[] against the Federal Government or those with whom it deals.”[10] The Court held that AB 32 discriminated against the federal government because AB 32 required the federal government to close all its detention facilities, including its ICE facilities, and did not require California to close any of its private detention facilities until 2028.
The Ninth Circuit therefore held that the Appellants were likely to prevail on the merits of their motion for a preliminary injunction. The Ninth Circuit Court of Appeals accordingly reversed the District Court’s orders denying the motion of the United States and GEO Group for a preliminary injunction, and granting the State of California’s motions to dismiss and for judgment on the pleadings. The Court remanded the case for further proceedings.
For a more detailed discussion of this case, please see Client Alert Vol. 36, No. 21, available at www.jones-mayer.com.
B. Police may petition to dispose of the firearms of individuals who were placed on a mental health hold and assessed, but not admitted for further evaluation.
Folsom Police Dep’t v. M.C., 69 Cal. App. 5th 1052 (3rd Dist. 2021)
Facts: In July 2019, Folsom Police Department officers detained M.C. inside his car. Police had earlier learned from an employee of a mental health provider that M.C. had been seen for anger management issues and had said, “I guess I will shoot myself in the head” before leaving the provider’s offices. Prior to M.C.’s detention, police had also discovered that M.C. had a permit to carry a concealed weapon and possessed several registered firearms. After detaining M.C., the officers took possession of a loaded firearm that M.C. was carrying. Police concluded that M.C. posed a significant danger to himself and/or others, and told M.C. he was going to be placed on a 72-hour mental health evaluation hold, under Welfare and Institutions Code section 5150. M.C. agreed to surrender his 25 other firearms, which police later retrieved. An officer took M.C. to a hospital and completed a form explaining the decision for the Section 5150 detention. Hospital records indicated that M.C. arrived for an involuntary hold status assessment, and that about six hours later, a medical doctor concluded that that outpatient care was the most appropriate option for M.C. The doctor explained that it “appeare[d] that [M.C.’s] clinic erred on the side of safety [by] calling the police,” as M.C. “made a comment out of frustration.” The doctor concluded that M.C. was “not an imminent danger to self or others at this time and does not meet the legal criteria for involuntary admission.” M.C. was immediately released thereafter.
In August 2019, the Folsom Police Department and City of Folsom (collectively, “Folsom” hereafter) filed a petition asking the trial court to authorize it to lawfully dispose of M.C.’s firearms, pursuant to Welfare and Institutions Code section 8102. Folsom asserted that despite M.C.’s release from the involuntary hold by the hospital staff, M.C. nevertheless posed a danger to himself and others. After hearing oral argument but refusing to allow witness testimony, the trial court denied the petition, relying on City of San Diego v. Kevin B. (4th Dist. 2004) 118 Cal.App.4th 933 (“Kevin B.”) for the trial court’s reasoning that Folsom had no authority to petition for such authorization, as M.C. was assessed but not also “evaluated” during the involuntary hold. Folsom appealed.
Held: The California Third District Court of Appeal concluded that the trial court erred when it ruled that it had no authority to conduct a firearms forfeiture hearing under Section 8102, on the ground that M.C. had not been both assessed and evaluated during an involuntary psychiatric hold under Section 5150. The Court of Appeal explained that Kevin B. held that, under the plain language of Section 8102, if someone were never detained or apprehended for examination of his or her mental condition, a law enforcement agency would have “no power to bring a petition under section 8102, subdivision (c),” as that provision explicitly contemplates such petitions within 30 days of the “release” of such persons. (Kevin B., supra, 118 Cal.App.4th at p. 943.) The Third District explained that Kevin B. did not support the trial court’s ruling that the trial court could not even consider Folsom’s petition, because M.C. was not both assessed and evaluated. The Court of Appeal determined that the language in Kevin B. upon which the trial court relied was dicta as Kevin B. was never even detained. Here, by contrast, M.C. was detained (and assessed, but not evaluated) and then released, satisfying the threshold requirement of Section 8102, subdivision (c). Accordingly, the Third District concluded that the trial court’s ruling was in error, vacated the trial court’s ruling and remanded for a hearing on the merits.
[1] Franceschi v. Yee, 887 F.3d 927, 935 (9th Cir. 2018) (quoting Hufford v. McEnaney, 249 F.3d 1142, 1150 (9th Cir. 2001)).
[2] Dusenbery v. United States, 534 U.S. 161, 167 (2002).
[3] 204 F.3d 947 (9th Cir. 2000).
[4] Estate of Ceballos v. Husk, 919 F.3d 1204 (10th Cir. 2019), Hastings v. Barnes, 252 F. App’x 197 (10th Cir. 2007), Allen v. Muskogee, 119 F.3d 837 (10th Cir. 1997), and Sevier v. Lawrence, 60 F.3d 695 (10th Cir. 1995).
[5] Charter’s arbitration agreement stated in relevant part, “If any judicial action or proceeding is commenced in order to compel arbitration, and if arbitration is in fact compelled, or the party resisting arbitration submits to arbitration following the commencement of the action or proceeding, the party that resisted arbitration will be required to pay the other party all costs, fees and expenses that they incur in compelling arbitration, including, without limitation, reasonable attorneys’ fees.”
[6] Williams v. Chino Valley Independent Fire Dist., 61 Cal.4th 97, 112 (2015) (citation omitted).
[7] Hughes v. Talen Energy Mktg., LLC, 136 S. Ct. 1288, 1297 (2016) (internal quotation marks omitted) (quoting Crosby v. Nat’l Foreign Trade Council, 530 U.S. 363, 373 (2000)).
[8] See United States v. Locke, 529 U.S. 89, 99 (2000) [holding that the presumption against preemption does not apply in areas with a “history of significant federal presence”].
[9] 8 U.S.C. section 1231(g) grants the Secretary “broad discretion in exercising his authority to choose the place of detention for deportable aliens.” Comm. of Cent. Am. Refugees v. INS, 795 F.2d 1434, 1440 (9th Cir.), amended, 807 F.2d 769 (9th Cir. 1986).
[10] Id. (quoting North Dakota v. United States, 495 U.S. 423, 436, 110 S. Ct. 1986, 109 L. Ed. 2d 420 (1990) (plurality opinion) (Stevens, J.)) (alteration in original).
