CPOA CASE SUMMARIES – SEPTEMBER 2017

Courtesy of James R. Touchstone, Esq.

CONSTITUTIONAL LAW

  1. Summary judgment properly denied on deputy’s defense of qualified immunity in excessive force case arising from fatal shooting of boy with toy gun.

 Estate of Lopez v. Gelhaus, 2017 U.S. App. LEXIS 18439 (9th Cir. Sept. 22, 2017)

Facts: On October 22, 2013, at approximately 3:15 p.m., Jose Licea, a civilian, observed a person, later identified as Andy Lopez, walking down the sidewalk holding an object that looked like an AK-47. When he was about 50 feet away from Lopez, he slowed down in his vehicle to look at the gun. When he looked at it, he thought it looked fake. He did not fear for his life or call the police.

At the same time, Sonoma County Sheriff’s Deputies Erick Gelhaus and Michael Schemmel were on routine patrol in a marked police car in Santa Rosa, California. Gelhaus was aware they were patrolling a part of the County known for gang activity and violent crime. As the deputies approached a stop sign, they observed Lopez walking in a direction away from them at a normal speed. His motions did not appear to be aggressive. To Gelhaus, Lopez appeared to be someone in his mid to late teens and he did not appear to be a gang member. Gelhaus observed Lopez carrying what he believed to be an AK-47. Gelhaus had never seen a person walking down the street in broad daylight carrying an AK-47. He had confiscated what turned out to be toy guns on three previous occasions while on patrol. During the most recent incident, Gelhaus had responded to a call involving subjects with rifles in a park. He used his loudspeaker from a distance of 100 yards to direct the subjects to put down their guns, to which they had complied.

Gelhaus saw Lopez holding the gun in his left hand, down at his side, with the muzzle pointed towards the ground. Schemmel reported the gun was in Lopez’s right hand. Once Gelhaus saw the gun, he alerted Schemmel, and then called in a “Code 20,” which is used to request that all available units report immediately on an emergency basis.

Schemmel drove past the stop sign and through the intersection, and simultaneously turned on the emergency lights and “chirped” the patrol car’s siren. After clearing the intersection, Schemmel stopped at a 45-degree angle with the sidewalk. As the car was slowing down, Gelhaus removed his seatbelt, drew his gun, and opened the passenger side door. At this point, the deputies were parked approximately 40 feet behind Lopez. Gelhaus positioned himself at the V of his open door and knelt on the ground. He pointed his gun at Lopez and yelled loudly, “Drop the gun!” Lopez had been walking the whole time, and was then approximately 65 feet from the deputies when Gelhaus shouted at him. He did not drop the gun, but instead paused a few seconds and began to rotate his body clockwise. Gelhaus then saw the gun come around as Lopez’s body turned. What happened next was disputed. Gelhaus indicated in his declaration that the weapon was swinging around and toward the officers, with the barrel of the weapon coming up. Gelhaus fired eight shots in rapid succession, seven of which hit Lopez.

Lopez collapsed after the shots. After other deputies arrived, they approached Lopez. As he stood over Lopez, Gelhaus realized the gun’s coloring was different from that of a real AK-47, and he also noticed it was much lighter than a real AK-47. It turned out that Lopez had been holding a plastic gun designed to replicate an AK-47. It did not have an orange tip at the end of the barrel. At the time of the shooting, Lopez had been standing next to an open field in a residential neighborhood, close to three schools that were out of session. There were no other people present at the shooting. Lopez had been walking in the general direction of several houses before Gelhaus shouted, and Gelhaus indicated that he did not want Lopez to get near them.

The total time elapsed from the chirping to the shots was approximately 20 seconds. Lopez died on site from his wounds.

Lopez’s estate filed suit in November 2013, asserting, among other things, a claim against Gelhaus under 42 U.S.C. § 1983 for a Fourth Amendment violation. Gelhaus and the County filed a motion for summary judgment on the basis of qualified immunity. The district court denied the motion. After conducting a qualified immunity analysis, the court determined that (1) plaintiffs could show a constitutional deprivation, and (2) the law was clearly established that, under the specific circumstances, the use of deadly force was unreasonable. Gelhaus appealed.

Held: The Ninth Circuit Court of Appeals affirmed the district court’s denial of summary judgment on the basis of qualified immunity. The Court concluded that a reasonable jury could conclude that Gelhaus used excessive force in violation of the Fourth Amendment, and the alleged violation was clearly established at the time of Gelhaus’s conduct. In reaching its conclusion, the Court conducted a qualified immunity analysis, looking at (1) whether there was a violation of a constitutional right, and (2) whether that right was clearly established at the time of the officer’s alleged misconduct.

In determining whether a constitutional right was violated, the Court explained that the claim that Gelhaus deployed excessive force in violation of the Fourth Amendment was governed by an objective reasonableness standard, which requires a balancing of the nature and quality of the intrusion on the individual’s Fourth Amendment interests against the countervailing governmental interests at stake. To balance such interests, courts utilize the non-exhaustive factors set forth in Graham v. Connor, which include (1) the severity of the crime at issue, (2) whether the suspect poses an immediate threat to the safety of the officers or others, and (3) whether the suspect is actively resisting arrest or attempting to evade arrest by flight.

Applying Graham, the Court found Lopez was not committing a serious crime or attempting to evade arrest by flight, and therefore the first and third factors weighed in Lopez’s favor. As to whether Lopez posed an immediate threat to the safety of the officers or others, the Court explained there were several factual disputes that needed to be resolved before it could assess whether a reasonable jury could find a Fourth Amendment violation.

Viewing the evidence in the light most favorable to the plaintiffs, the Court determined that a reasonable jury could find that: (1) the officers came across Lopez while on routine patrol, not in response to a crime or a report of someone acting erratically; (2) when Gelhaus saw Lopez, he looked like a teenager, not a gang member; (3) Lopez was walking normally and his motions did not appear aggressive; (4) Lopez was carrying a weapon that looked like an AK-47, but given Gelhaus’s prior confiscations of toy guns, Gelhaus knew there was a possibility that it was a toy gun; (5) Lopez was holding the gun by the pistol grip, down at his side, with the muzzle pointed toward the ground; (6) Lopez was carrying the weapon in broad daylight in a residential neighborhood during a time when children his age could reasonably be expected to be playing; (7) after the deputies parked behind Lopez, Gelhaus yelled “drop the gun” one time, and that shout was the first moment Lopez became aware that someone was behind him; (8) within seconds, Lopez began to turn around naturally in a clockwise direction, still holding the gun; (9) Lopez did not know until he turned that the person who shouted was a police officer; (10) as Lopez turned, the weapon turned with him; (11) the gun barrel might have raised slightly as Lopez turned, but since it started in a position where Lopez’s arm was fully extended and the gun was pointed straight down at the ground, the barrel never rose at any point to a position that posed any threat to either of the officers; (12) Gelhaus deployed deadly force without knowing if Lopez’s finger was on the trigger, without having identified himself as a police officer, and without ever warning that deadly force would be used; (13) Lopez was shot while standing next to an open field with no other people around; and (14) Gelhaus knew it was possible to use less intrusive force given his prior experience at the park.

Based on these facts, the Court concluded that a reasonable jury could conclude that Lopez did not pose an immediate threat to the safety of the officers or others, and that Gelhaus’s use of deadly force was not objectively reasonable. The Court noted that Gelhaus had time to issue a warning, but never notified Lopez that he would be fired upon if he either turned or did not drop the gun. Thus, the Court found that the plaintiffs could demonstrate a constitutional violation, assuming that the factual disputes were resolved in plaintiffs’ favor.

Having determined plaintiffs could demonstrate a constitutional violation, the Court next assessed whether that right was clearly established at the time of the alleged violation. Citing White v. Pauly, the Court explained that clearly established law should not be defined at a high level of generality. Instead, the clearly established law must be particularized to the facts of the case. The Court concluded that George v. Morris, as well as Harris v. Roderick and Curnow v. Ridgecrest Police, served the function of providing Gelhaus with guidance that his conduct was unconstitutional. Analogizing the facts of each case to the circumstances confronted by Gelhaus, the Court found the law was clearly established at the time Gelhaus shot Lopez that his conduct was unconstitutional.

Ultimately, the Court explained, whether Gelhaus will be entitled to qualified immunity will depend on disputed facts that must be resolved by a jury. The Court affirmed the district court’s denial of the motion for summary judgment and remanded the case for trial.

 1. Denial of qualified immunity to officers involved in fatal shooting reversed where decedent did not have a reasonable expectation of privacy in apartment while trespassing.

 Woodward v. City of Tucson, 2017 U.S. App. LEXIS 17896 (9th Cir. Sept. 15, 2017).

Facts: Late one night in May 2014, Tucson Police Department Officer Allan Meyer was dispatched to an apartment that was supposed to be empty following a report from the landlord that the former tenants were inside. According to his deposition testimony, upon his arrival, Officer Meyer found the metal security door was closed. He learned the security door was unlocked, opened it, and learned that the front door was also unlocked. Officer Meyer called for backup on the grounds that there was an apartment with an open door. Officer Robert Soeder responded. The officers did not see any signs of forced entry.

With their guns drawn, the officers knocked on the front door and announced they were police.  When no one answered, they opened the door and entered the apartment. Once inside, they observed belongings taking up approximately half of the room, cleared the living room, and determined no one else was present. They observed a closed door to the apartment’s only bedroom and heard a radio playing inside the room. The officers approached the closed door, orienting themselves on either side. They knocked on the door and announced their presence, but no one responded.

Officer Soeder then opened the door. As summarized in their declarations, when Officer Meyer and Officer Soeder opened the door with their guns drawn, Michael Duncklee immediately advanced toward them, yelling or growling, with a two-foot length of a broken hockey stick raised in a threatening manner. Officer Meyer yelled “Police, stop” but Duncklee continued coming toward him.  Officer Meyer fired at Duncklee’s chest. Duncklee ultimately died from his gunshot wounds. Duncklee had been inside the apartment with Amber Watts, the former tenant of the apartment who had been formally evicted prior to the night of the incident.

Duncklee’s mother brought suit under 42 U.S.C. §1983, alleging the officers unlawfully entered the apartment and used excessive force against Duncklee. The officers argued they were entitled to qualified immunity. The district court found that Officer Meyer and Officer Soeder were not entitled to qualified immunity for either the warrantless search of the apartment or their use of force on Duncklee.

On the warrantless search claim, the district court concluded the warrantless entry into the apartment violated the Fourth Amendment because the officers failed to show the entry was reasonable in light of exigent circumstances or consent to enter. On the excessive force claim, the district court concluded that it was clearly established as a matter of law that drawing their guns and letting themselves into the apartment violated a constitutional right to be free from excessive force. The district court also granted in part Plaintiff’s motion for summary judgment, concluding the warrantless search of the apartment violated the Fourth Amendment because there were neither exigent circumstances nor proper consent to enter.

The officers appealed the district court’s denial of qualified immunity and the partial grant of summary judgment to Plaintiff as to the unreasonableness of the entry.

Held: The Ninth Circuit Court of Appeals reversed the denial of qualified immunity regarding the warrantless entry into the apartment as well as the seizure of and use of force on Duncklee.  It also reversed the partial grant of summary judgment in favor of Plaintiff. The Court concluded that the decedent did not have a reasonable expectation of privacy while trespassing in an apartment. The Court further found that the law was not clearly established that the officer’s use of deadly force was unconstitutional based on the circumstances confronting the officers at the time.

Fourth Amendment Standing

The Court first addressed Plaintiff’s standing to assert a Fourth Amendment violation for the warrantless entry into the vacant apartment, concluding Plaintiff lacked standing. The Court explained that Watts was a trespasser in the apartment, since she had been formally evicted.  Since an individual who has been formally evicted has no reasonable expectation of privacy in his or her previous residence, and Watts had been evicted and had her key taken away, she had no reasonable expectation of privacy in the apartment. Because any privacy rights Duncklee had in the apartment had to stem from his relationship with Watts, and Watts had no reasonable expectation of privacy in the apartment, Duncklee similarly had no reasonable expectation of privacy in the apartment on the night he was shot. Therefore, the Court concluded Plaintiff did not have standing to assert a Fourth Amendment claim for the warrantless entry into the apartment.

Qualified Immunity Regarding the Seizure of the Apartment

As to the Defendants’ qualified immunity claim regarding the search of the apartment, the Court explained that whether qualified immunity is warranted is a two-part inquiry: (1) whether the facts alleged by plaintiff make out a violation of a constitutional right, and (2) if so, whether that right was clearly established at the time of the defendant’s alleged misconduct. Because Duncklee had no reasonable expectation of privacy in the apartment, the Court explained that Plaintiff could not establish that the officers’ violated Duncklee’s Fourth Amendment rights by entering the apartment without a warrant. Therefore, the Court concluded the first part of the qualified immunity inquiry was not satisfied, and reversed the district court’s decision to deny qualified immunity on this claim.

Qualified Immunity Regarding the Seizure of and Use of Force on Duncklee

Because the district court had denied qualified immunity as to the seizure of and use of force on Duncklee citing the Provocation Rule, which was rejected by the Supreme Court in County of Los Angeles v. Mendez, the Court concluded that, in light of Mendez, the district court erred in relying on the Provocation Rule.

The Court explained that the question before it was whether the officers were entitled to qualified immunity as to the seizure of and use of deadly force on Duncklee, which required an inquiry into (1) whether the facts alleged by the plaintiff established that a constitutional right was violated, and (2) whether that right was “clearly established” at the time of the alleged violation.  Because a court can consider the two prongs in either order, the Court elected to analyze the second prong first.

The Court noted that when the officers entered the bedroom door with their guns drawn, Duncklee immediately advanced toward them, yelling or growling, with a two-foot length of a hockey stick raised in a threatening manner. The Court concluded that reasonable officers in their positions would not have known that shooting Duncklee violated a clearly established right.  In fact, the Court noted, the case law makes clear that use of deadly force can be acceptable in such a situation. Therefore, the Court concluded that even if a constitutional violation occurred, the district court erred in denying qualified immunity on this claim.

For a more detailed discussion relating to this case, please see Client Alert Vol. 32, No. 28, authored by James R. Touchstone and available at www.jones-mayer.com

  1. Inventory search of defendant’s vehicle invalid where there was no substantial evidence that the officer conducted the search in accordance with standardized policies and procedures of the department and where there was no substantial evidence that the police inevitably would have found the evidence.

 People v. Wallace, 15 Cal. App. 5th 82 (1st Dist. 2017)

FactsIn March 2015, Fairfield Police Department (“FPD”) Sergeant Reeves stopped Leroy Wallace for having “false tabs” on his vehicle. Officer Ambrose heard Sergeant Reeves broadcast Wallace’s name over the police radio, and knew Wallace was wanted in connection with a domestic violence incident that took place one or two nights before. Ambrose went to the location of the traffic stop and spoke to Reeves by Reeves’ vehicle. After they spoke, they went to Wallace’s vehicle, removed him, placed him in handcuffs, and searched his person. Then, according to Ambrose’s testimony at the preliminary hearing, he put Wallace in the back of his vehicle and proceeded to search Wallace’s vehicle.

According to his testimony, FPD has a policy of impounding and inventorying a vehicle when no one is present to take custody of it. Ambrose testified that no one else was in Wallace’s vehicle and no one was in the area to take custody of the vehicle. Ambrose testified that he started the search of the vehicle on the driver’s side door, which was still open from when he removed Wallace. As he entered the vehicle, he noticed a red handle sticking up between the center console and the driver’s seat. He reached down and grabbed the handle, and pulled out an approximately 24-inch long brown wooden baton with red tape on the end where the handle would be. He considered the baton to be a deadly weapon based on his training and experience. Its presence in the vehicle provided an additional basis for his arrest of Wallace. After discovering the baton, Ambrose continued his search of the vehicle. He did not find anything of value.

The Solano County District Attorney filed an information charging Wallace with possession of a baton in violation of Penal Code section 22210, which prohibits possession of “any instrument or weapon of the kind commonly known as a billy, blackjack, sandbag, sandclub, sap, or slungshot.” Wallace moved to suppress the evidence of the baton. The court held a preliminary hearing, at which time it considered the motion to suppress. Ambrose was the only person to testify at the hearing. In addition to his testimony about the search that yielded the baton, Ambrose testified that he was not sure if the vehicle was towed or not because he left with Wallace, and Reeves stayed behind with the vehicle. He testified that it was standard procedure to fill out a California Highway Patrol 180 Form (“CHP 180 form”) if a vehicle was towed, which contained a field for inventorying items found in a towed vehicle, but said he did not have anything to do with the traffic stop or filling out such form, if it was filled out. After the hearing, the court denied the motion to suppress. It concluded that it was a search as part of the community caretaking function of inventorying a vehicle and preparing it for towing when a person is placed under arrest.

Wallace subsequently moved to set aside the information on the ground that the motion to suppress should have been granted. The trial court denied the motion. In May 2016, Wallace entered a no contest plea to the weapon charge and was convicted on that charge. He preserved his right to raise the denial of the motion to suppress on appeal.

After he was sentenced, Wallace appealed the motion to suppress. Wallace argued on appeal that the warrantless search of his vehicle violated his constitutional rights against unreasonable search and seizure. He argued the motion to suppress should have been granted because there was no evidence that Ambrose’s search fell within the “inventory search” exception to the prohibition against warrantless searches. The prosecution argued that the Court should affirm because the police inevitably would have discovered the baton.

Held: The First District Court of Appeal held there was no substantial evidence that Ambrose conducted an inventory search in accordance with standardized policies and procedures, nor was there substantial evidence that the police inevitably would have discovered the baton in the course of impounding the vehicle and inventorying its contents.

The Court explained that there is an exception to the warrant requirement when police take an inventory of the contents of a vehicle when impounding it, and that inventory searches are typically performed in the course of police impounding a vehicle in the interests of public safety and as part of community caretaking functions. The Court noted that California courts have rejected claims of alleged inventory searches where the evidence does not show that the search was conducted in accordance with an established policy or practice governing such searches, or where it indicates the search was conducted for another purpose.

Here, Ambrose testified about FPD’s standard policy of towing and inventorying a defendant’s vehicle when no one is present to take custody of it, and that it is standard procedure to fill out the CHP 180 form, which contained a field to inventory the items that were found in the vehicle. However, the Court noted, Ambrose did not testify he was complying with the policies when he searched the vehicle, nor that he and/or Reeves had decided to have the vehicle towed before he searched it. He testified that he did not know whether the vehicle was in fact towed or whether a CHP 180 form was ever prepared. The Court also noted that no evidence was offered that Ambrose referred in his police report to having conducted an inventory search or that his search had yielded anything of value, as required by FPD’s inventory search policy.

Thus, based on the record, the Court concluded that there was no substantial evidence that Ambrose conducted an inventory search in accordance with the standardized policies and procedures of FPD. Since no evidence was presented that the officers had considered whether, or decided, to impound the vehicle, and the reasons for impoundment, the Court found the community caretaking functions were not implicated.

The Court also concluded that there was no substantial evidence that police inevitably would have discovered the baton. It noted that evidence that has been illegally obtained may be admitted if the prosecution can establish by a preponderance of the evidence that the information ultimately or inevitably would have been discovered by lawful means. The Court found that the prosecution’s argument failed because it required the Court to build “speculative inference on top of speculative inference.” First, it noted that the record was silent as to whether anyone had considered towing the vehicle, so the Court could only speculate as to whether any decision was considered or made to tow Wallace’s vehicle according to standard FPD policy, and if such decision would have been reasonable. Second, it noted there was no evidence that the vehicle was in fact towed. Ambrose, the only person who testified, indicated he was not aware of any decision to tow the vehicle and did not know whether it was ever towed. Because of his testimony, the Court found it would also be speculation to conclude the vehicle was in fact towed.

Thus, the Court concluded there was no substantial evidence to support the trial court’s denial of the motion to suppress, and that the trial court should have granted the motion because the prosecution did not meet its burden of establishing that the search did not violate the warrant requirement of the Fourth Amendment. The Court reversed the judgment, and remanded the case to the trial court with directions to vacate the order denying the motion to suppress and enter a new judgment granting the motion, and permit Wallace to withdraw his no contest plea.

  1. Automobile exception justified warrantless search of drug trafficker’s vehicle.

United States v. Faagai, 869 F.3d 1145 (9th Cir. 2017)

Facts: Law enforcement began investigating John Penitani in 2012 based on the seizure of 14 ounces of methamphetamine and $3,600 from Penitani’s cousin. Penitani’s cousin told law enforcement he had obtained the seized methamphetamine from Penitani and that he had been purchasing approximately one to two pounds of methamphetamine a month from Penitani. From August to November 2012, Penitani was the primary target of a court-authorized wiretap investigation. Around October 2012, Julius Mitchell introduced Penitani to Jacob Del Mundo Faagai. Law enforcement agents knew Penitani and Mitchell had previously engaged in three illegal drug transactions prior to Mitchell introducing Penitani and Faagai.

On October 29, 2012, Penitani and Faagai met alone at a restaurant. They spoke on the telephone beforehand in an intercepted conversation during which Penitani asked if Faagai was by himself, and Faagai said “Yeah, yeah automatic.” After the meeting, law enforcement agents intercepted a call between Penitani and Mitchell, during which Penitani asked whether Faagai was trustworthy and said he hoped Faagai “don’t try to do me wrong.” Later the same day, agents intercepted another call between Penitani and Faagai relating to what seemed to be a pre-planned meeting. Drug Enforcement Administration Special Agent Clement Sze testified that the agents believed based on the entirety of their investigation that the purpose of the meeting was for Penitani and Mitchell to supply Faagai with methamphetamine.

On November 4, 2012, law enforcement agents seized five pounds of methamphetamine from a courier sent by Penitani’s supplier. On November 5, 2012, agents intercepted a text message from Faagai to Penitani in which Faagai indicated he was going to Costco to buy food, and that if Penitani needed to buy food, they should meet at Costco. Agents believed “food” was code for “money.” Agent Sze testified that he believed Faagai wanted to arrange a meeting to pay Penitani for the methamphetamine he fronted to Faagai on October 29. When the agents arrived at Costco, they saw Penitani driving away, and did not see Faagai. They believed the meeting had already taken place. A few hours later, agents intercepted a text message from Penitani to Faagai, mentioning that he “lost ten large” and apologizing for taking long with the “tools.” Agent Sze testified that he believed Penitani was indicating that he had lost $10,000 and that “tools” referred to methamphetamine.

At around 6:30 p.m. the same day, agents intercepted a text message from Faagai to Penitani indicating that he needed his tools to get to work and asking what time they were looking at. Agent Sze testified that he believed Faagai was asking for methamphetamine and wanted to know what time they would be meeting. Faagai then sent a message saying he did not want to lose his job. At 7:11 p.m., Penitani responded that he was on his way. About 30 minutes later, agents intercepted a call between Penitani and Faagai in which they discussed where they should meet. Penitani suggested McDonalds, but stated there would be a lot of people, and Faagai suggested Jack In The Box, which he stated typically had hardly any people there. Agents conducted surveillance of the Jack In The Box but did not see Faagai or Penitani. At 8:14 p.m., they intercepted a text message changing the location to a 7-Eleven. At 8:30 p.m., agents arrived at the 7-Eleven, where they saw Faagai in the parking lot leaning into the passenger side window of Penitani’s window. They believed the two had already been there for 15 minutes based upon the lapse between when the text was received and when agents saw them in the parking lot. Agent Sze testified that he believed the drug transaction had already occurred by the time they arrived.

At approximately 9:00 p.m., Faagai left the 7-Eleven. Agent Sze had arranged for Honolulu Police Department Sergeant Leslie Morris to make a purported traffic stop of Faagai. At 9:05 p.m., she pulled Faagai over and told him his vehicle had been identified as having been involved in a robbery. She requested consent to search the vehicle. Faagai refused and became belligerent. Morris instructed Faagai to exit his vehicle. He complied, sat on the curb, and made phone calls. Faagai’s friends arrived and became belligerent and verbally combative with Sergeant Morris. Agent Sze intervened, informing Faagai he was investigating a robbery and that Faagai’s truck had been identified as being involved. He asked for consent to search. Faagai refused. When Agent Sze asked Faagai where he was coming from, he stated Jack In The Box. Agent Sze asked whether he had come from somewhere else, but Faagai maintained that he came from Jack In The Box.

Agent Sze began to search the vehicle. There was a backpack in the front seat, which Faagai indicated belonged to his uncle. Agent Sze found drug paraphernalia in the backpack, and approximately half a pound of methamphetamine in a plastic bag located in the back pocket of the front passenger seat.

Faagai was arrested. He was charged with conspiracy and possession with intent to distribute 50 grams or more of methamphetamine, its salts and isomers and salts of its isomers. Faagai filed a motion to suppress the evidence seized during the search of his vehicle. The district court denied the motion. In concluded the warrantless search of Faagai’s vehicle was justified by the automobile exception to the warrant requirement. It found the agents had probable cause to search the vehicle based upon several facts, including Faagai’s association with Penitani, an individual under investigation for drug distribution, the fact that Faagai and Penitani were introduced by Mitchell, a suspected drug trafficking associate of Penitani’s, the apparent code language used by Penitani and Faagai, Faagai becoming belligerent when he was told his vehicle was believed to have been involved in a robbery, and Faagai lying about where he had been. The district court concluded that based on the totality of the circumstances, there was a fair probability that contraband or evidence of a crime would be found in Faagai’s vehicle.

After the court denied his motion to suppress, Faagai entered into a conditional guilty plea, reserving his right to appeal the denial of his suppression motion. After he was sentenced, Faagai appealed.

Held: The Ninth Circuit Court of Appeals held that, under the totality of the circumstances, there was probable cause to believe that contraband would be found in Faagai’s vehicle. In reaching its decision, the Court explained that, typically, searches must be conducted pursuant to a warrant issued by a judicial officer. However, there are exceptions to the warrant requirement, including the automobile exception. Under the automobile exception, law enforcement may conduct a warrantless search of a vehicle if there is probable cause to believe the vehicle contains evidence of a crime. The Court explained that probable cause exists if there is a “fair probability that contraband or evidence of a crime will be found in a particular place” under the totality of the circumstances. The finding must be supported by the objective facts known to the officer at the time of the search.

Here, the Court reviewed the circumstances leading to the search of Faagai’s vehicle. It noted that Faagai was associating with Penitani, a known drug dealer, and that Mitchell, one of Penitani’s drug dealing associates, had introduced Faagai and Penitani. The Court also noted that Penitani’s concern about meeting alone at the October 29 meeting suggested they were engaging in illegal activity; and that after the meeting, when Penitani inquired about whether Faagai was trustworthy, it was apparent that he was asking whether he was trustworthy enough to participate in drug transactions.

The Court further noted that the Costco meeting was not likely to shop for food, since the Costco they met at was 24 miles away from where Penitani lived and there was another Costco located much closer. The Court gave deference to Agent Sze’s testimony that he believed “ten large” was referring to $10,000 and “tools” referred to methamphetamine, and to the district court’s finding that use of “tools” was suspect because there was no indication that the agents had any information tying Penitani to construction work, mechanical work, or other manual labor. The Court noted that even if Faagai needed tools for his work, there was no indication that Penitani would have been able to supply them.

The Court noted that the selection of the meeting place on the night of November 4 based upon the number of people present suggested they were meeting to engage in illicit activity rather than to eat dinner together. The Court noted that at 7-Eleven, agents observed Faagai walk away from Penitani’s vehicle to his truck without anything in his hands. The meeting had lasted about 15 minutes, and because the purpose of the meeting was likely to engage in a drug transaction, the Court found there was probable cause to believe that Penitani had delivered drugs to Faagai, and that the drugs would be found in Faagai’s truck. Finally, the Court found that Faagai’s belligerent reaction to the assertion that his vehicle had been involved in a robbery as well as his dishonest answer about where he had been indicated Faagai was engaging in illegal activity with Penitani.

Thus, based on the totality of the circumstances, the Court found there was probable cause to believe contraband would be found in Faagai’s truck, and concluded the warrantless search of his vehicle was permissible under the automobile exception.

  1. Sheriff’s deputies successful in asserting qualified immunity on several claims in case asserting constitutional violations based upon an arrest gone wrong.

 Sharp v. County of Orange, 2017 U.S. App. LEXIS 18148 (9th Cir. Sept. 19, 2017)

FactsIn August 2013, Merritt L. Sharp IV (“Sharp IV”) was released from state prison subject to conditions of probation. The conditions required him to submit his person and property to search and seizure at any time by any law enforcement officer with or without a warrant, probable cause, or reasonable suspicion. After his release, his parents, Merritt L. Sharp III (“Sharp III”) and Carol Sharp, allowed him to stay with them at their home. Sharp IV informed the probation office of his address. In mid-September 2013, his parents kicked him out. His mother informed Sharp IV’s probation and parole officers that he no longer lived with them.

In September 2013, a criminal court issued two arrest warrants for Sharp IV, which deputies decided to execute on October 2, 2013. Prior to executing the arrest warrants, Deputy Prescott reviewed Sharp IV’s active arrest warrants, which indicated he was male, white, 51 years old, between 5’11” and 6’ tall, and resided at his parents’ address. Sharp IV’s DMV records and probation response form also confirmed his parents’ address as his residence. Deputy Prescott also checked Sharp IV’s criminal records and learned that he had previously committed violent crimes, including kidnapping, assault with a deadly weapon, and felony domestic violence. Prescott met two other deputies, Van De Kreeke and Chevalier, near Sharp IV’s residence to formulate their plan for executing the warrants. Prescott showed the deputies a packet of documents, including a photo of Sharp IV.

When they arrived at the residence, Chevalier went to the backyard and Prescott and Van De Kreeke went to the front door, covering the peephole with a piece of tape and knocking several times. Chevalier radioed that the subject was fleeing out of the backyard. He described the subject as white, 5’11”, 180 pounds, and wearing a black shirt, tan pants, and white shoes. The deputies all went to the back of the house to attempt to locate Sharp IV, and expanded their search into a nearby golf course. Chevalier warned that Sharp IV was prone to violence and had a violent history toward law enforcement.

While the deputies were searching the golf course, Prescott saw a man in the Sharps’ backyard whom he believed to be Sharp IV. He reported the man was bald, wore a blue shirt, and had the same stature as Sharp III. Prescott radioed that the suspect was going back in the house, and directed Deputy Anderson to go to the front of the house. Prescott, Van De Kreeke, and Chevalier made their way back to the house. Anderson and Deputy Flores arrived at the house. They had not seen a photograph of Sharp IV and did not know his name, but had heard the radio transmission that included a description of a white male wearing a black shirt and tan pants.

As Anderson and Flores arrived, they saw Sharp III, who was wearing a light blue shirt and blue jeans, walk out of the front door. Although his clothing did not match the earlier description and his demeanor was not consistent with that of a fleeing suspect, Anderson and Flores, with their weapons drawn, shouted to Sharp III to get on the ground and put his hands up. They placed Sharp III under arrest. Anderson grabbed Sharp III’s left arm, put it behind his back, and handcuffed his left wrist. He then conducted a search of Sharp III’s person. Finally, he handcuffed Sharp III’s right wrist, fully restraining his arm movement. Anderson placed Sharp III in the back of his patrol car, and asked for his full name and birthday. He gave his full name and his birthday of August 1940, which made him 73 years old.

A few minutes after Sharp III was placed in the patrol car, other deputies went to the residence to conduct a search pursuant to Sharp IV’s probation condition. At the front door, Carol Sharp told the deputies that they had arrested the wrong man, and that her son, Sharp IV, did not live there anymore. The deputies realized their mistake and began to ask Sharp III about his son’s whereabouts. They did not release Sharp III. Instead, they kept him handcuffed in the patrol car. Carol was required to stay on the porch while the deputies searched the house. The deputies opened kitchen cabinet and pantry doors, removed the air-conditioning cover in the attic, and searched drawers in Carol’s bedroom. Sharp III was released from the patrol car when the search concluded, at which point he had been detained for twenty minutes beyond the time the deputies discovered he was not the subject of the arrest warrant.

Sharp III and Carol filed suit, alleging violations of their First and Fourth Amendment rights under 42 U.S.C. § 1983, as well as pendent claims under California law. The deputies moved for summary judgment on the grounds of qualified immunity, which the district court denied. The deputies appealed.

Held: The Ninth Circuit Court of Appeals held that the deputies were entitled to qualified immunity on the seizure of Sharp III’s person, excessive force, the search of his person, and the search of his and Carol’s home, but they were not entitled to qualified immunity on the First Amendment retaliation claim as to Sharp III.

Seizure of Sharp III

The Court first addressed Sharp III’s claims that the deputies unlawfully seized him in violation of the Fourth Amendment. The Court explained that there were two aspects to the seizure: (1) the initial mistaken arrest, and (2) the subsequent detention in the patrol vehicle after the deputies discovered he was not the subject of the arrest warrant.

As to the initial mistaken arrest, the Court concluded that the initial arrest based on mistaken identity was constitutionally unreasonable and thus illegal, but that it did not violate clearly established law. In reaching its conclusion, the Court explained that the question turned on the objective reasonableness of the officers’ belief that the person they arrested was the warrant subject. In a case of mistaken identity, it explained, the question is whether the arresting officers had a good faith, reasonable belief that the arrestee was the subject of the warrant. Here, the Court found the mistaken identity was unreasonable. The Court noted that it was not clear that Anderson and Flores had actually formed a specific belief that Sharp III was the warrant subject, citing their testimony that they were trying to detain anyone that came out of the house. The Court stated the deputies should have known Sharp III was not the subject, noting that Sharp III was wearing completely different clothing than the clothing reported, and that Sharp III was walking toward them rather than fleeing like the described subject.

The Court thus found that it was unreasonable for the deputies to conclude that Sharp III was the subject of the arrest warrant, and therefore the initial arrest violated the Fourth Amendment. However, the Court concluded that the arrest was not prohibited by clearly established federal law. The Court noted that plaintiffs bear the burden of identifying a case where an officer acting in similar circumstances as defendants was found to have violated the Fourth Amendment. The Court concluded that plaintiffs had not put forth such a case. Because plaintiffs did not set forth a similar case and because it was not an obvious constitutional violation, the Court concluded the officers were entitled to qualified immunity as to the initial arrest based on mistaken identity.

Subsequent Detention of Sharp III Once Officers Knew He was Not the Subject of the Arrest Warrant

The Court also concluded that the detention of Sharp III after officers discovered he was not the subject of the arrest warrant was unconstitutional. The Court first addressed and rejected the defendants’ argument that, pursuant to Michigan v. Summers, officers have the categorical authority to detain a home occupant in the immediate vicinity of the home while executing an arrest warrant for a different subject of the home. The Court explained that Summers involved a search warrant, which is meaningfully different from an arrest warrant. It held that the Summers exception, which hinged on the distinct nature of a search warrant, does not extend to arrest warrants. The Court further found that there were no particular circumstances that justified detaining Sharp III after the officers learned he was not the subject of the warrant.  Thus, the Court found the detention was unconstitutional.

Although the detention was unconstitutional, the Court concluded that the detention was not prohibited by clearly established law, as there was no case law that would have alerted the officers to the appropriate scope of Summers, which they believed provided authority to detain Sharp III. Accordingly, the Court held that the law was not clearly established and qualified immunity should have been granted.

Use of Excessive Force Against Sharp III

Sharp III further alleged that Anderson used excessive force when he arrested Sharp III. According to plaintiffs, Anderson yanked Sharp III’s left arm behind his back, causing a rotator-cuff tear which required surgery, and then applied handcuffs tightly enough to break his skin. While noting the use of force was significant, the Court concluded that Anderson was entitled to qualified immunity because plaintiffs did not offer anything other than general legal propositions that could not clearly establish that Anderson’s conduct was unlawful.

Search of the Sharps’ Home

The Sharps argued that the search of their residence violated the Fourth Amendment because (1) the deputies unlawfully entered their home without a reasonable basis to believe that Sharp IV resided and was actually present at that time, and (2) they exceeded the scope of their authority to search for Sharp IV by searching areas such as the kitchen and bedroom drawers where Sharp IV was not likely to be found. As to the entry into the home, the Court concluded the deputies reasonably believed Sharp IV resided at the home based on the his probation response form, DMV records, and arrest warrants that confirmed he lived there. The Court found it was not unreasonable for the deputies to rely on those documents rather than Carol’s statement from the porch that he did not live there, which the Court indicated the officers could have discounted as an effort to protect her son.

As to the argument that the deputies exceeded the scope of their authority, the Court, citing Sharp IV’s probation condition, concluded that Sharp IV’s probation condition required him to submit to a search of his property, which defeated the argument that the deputies exceeded the scope of the authorized search by searching beyond areas where Sharp IV was not likely to be found. The Court also noted that plaintiffs did not make any argument in response to the deputies’ argument that the search was justified on this basis. Thus, the Court concluded that it could not conclude the search exceeded the bounds of clearly established precedent, and qualified immunity was therefore warranted on this claim.

First Amendment Retaliation

Sharp III also argued the officers retaliated against him for being argumentative. The Court explained that to establish a retaliation claim, the evidence must show that (1) the officer’s conduct would chill or silence a person of ordinary firmness from future First Amendment activities, and (2) the officer’s desire to chill speech was a “but-for cause” of the adverse action. In the patrol car, Sharp III was visibly angry with the deputies, swore at them, and threatened to sue them. In response, Anderson told him that if he was not being so argumentative, he would probably put him on the curb. The Court concluded that Sharp III suffered a constitutional violation that was clearly prohibited by established law. Focusing on the second prong of the inquiry, the Court explained that Anderson’s statement contradicted defendants’ contention that the belligerent demeanor was not a but-for cause of the continued detention. The Court stated that it was “quite literally” a statement of but-for causation, noting that Anderson effectively stated, “If you weren’t [exercising your First Amendment rights], I’d probably [change the current conditions of your detention.]” The Court found the causation element was met, which amounted to a constitutional violation. Citing Ford v. City of Yakima, wherein the Court had found unconstitutional retaliation where an officer indicated that he was arresting a man because he would not “shut up”, the Court found Anderson’s violation was clearly established. Thus, qualified immunity was properly denied on this claim.

  1. Where probation search condition allows for warrantless search of property and personal effects, an objective, reasonable person would understand such condition to include the probationer’s cell phone and the data it contains

People v. Sandee, 15 Cal App. 5th 294 (4th Dist. 2017)

FactsIn September 2015, as San Diego Sheriff’s Department detectives were conducting surveillance at a house suspected of narcotics activity, they observed Megan Sandee and a companion arrive at the house on bicycles, enter the house for a period of time, and then leave on their bicycles. When Sandee and her companion failed to stop at a red light on their bicycles, a detective initiated a traffic stop by activating his lights and yelling at them to stop. Sandee stopped her bicycle next to a large bush.

In response to a question from the detective, Sandee indicated that she was on probation and subject to a search condition. The detective confirmed with dispatch that Sandee had a valid Fourth Amendment waiver, which covered property in Sandee’s residence, vehicle, person, and place of work. Relying on the waiver, the detective searched Sandee’s backpack, where he found a hypodermic needle, and her cell phone, where he found several text messages that he believed indicated that Sandee was involved in selling narcotics. He took photographs of the messages and noted them in his report. The detective also found a bag containing approximately 6.9 grams of methamphetamine lying near the bush where Sandee had placed her bicycle.

Sandee was arrested and charged with three controlled substance-related counts. She filed a motion to suppress the evidence found on her cell phone. The trial court denied the motion, concluding the search of her cell phone for text messages was within the scope of her Fourth Amendment waiver. Sandee ultimately pled guilty to two counts, and the prosecution dismissed the remaining count. After she was sentenced, Sandee appealed.

On appeal, Sandee argued that the trial court erred in denying her motion to suppress the evidence found on her cell phone.

Held: The Fourth District Court of Appeal held that the warrantless search of Sandee’s cell phone was permitted under the probation search exception to the warrant requirement because the search fell within the scope of the Fourth Amendment waivers in Sandee’s probation orders. In reaching its decision, the Court explained that, pursuant to People v. Bravo, when interpreting the scope of a Fourth Amendment waiver agreed to by the defendant as a condition of probation, the waiver must be interpreted based on an objective test, based upon what a reasonable person would understand from the language of the condition itself. The Court explained that the proper inquiry focuses on what a reasonable, objective person would understand the search condition to mean at the time of the search.

Looking at Sandee’s search condition, the Court found a reasonable, objective person would understand it to include a search of Sandee’s cell phone. Sandee agreed in her probation search condition to submit her “property” and “personal effects” to search at any time. The Court noted the condition was worded broadly and did not contain any language that would limit the terms “property” and “personal effects” to exclude her cell phone or other electronic devices, or the data contained on them. The Court indicated that a cell phone is the property of the person who possesses it and constitutes part of that person’s personal effects, and that therefore a reasonable person would understand these terms to include Sandee’s cell phone and the data on it.

The Court rejected Sandee’s reliance on the Ninth Circuit’s recent decision in United States v. Lara, wherein that court, after balancing the intrusion on the defendant’s expectation of privacy against the government’s interest in supervising the defendant on probation, concluded that the search of a defendant’s cell phone pursuant to a probation search condition was not reasonable under the totality of the circumstances. The Fourth District indicated that it is not bound by Lara and did not find it persuasive because it did not follow the approach approved by the California Supreme Court for assessing the constitutional validity of a search conducted pursuant to a probation search condition.

The Court explained that under that approach, a search pursuant to a probation search condition is not prohibited by the Fourth Amendment as long as (1) it is not undertaken for harassment or for arbitrary or capricious reasons, and (2) it is within the scope of the search condition, interpreted on the basis of an objective test according to what a reasonable person would understand from the language of the condition itself. Here, the Court reiterated its determination that a reasonable person would understand the terms “property” and “personal effects” to include Sandee’s cell phone and its data. Further, Sandee did not contend the search was arbitrary, capricious, or done in order to harass her. Thus, the Court found the search was constitutionally valid under governing California law.

  1. Discovery of several dogs, which ultimately led to property owners’ dog fighting and animal cruelty convictions, justified by exigent circumstances exception to warrant requirement.

People v. Williams, 15 Cal. App. 5th 111 (2d Dist. 2017)

Facts: In October 2014, Los Angeles County Animal Control Officer Ed Callaway responded to a report of a loose horse in an unincorporated area rural area of Los Angeles County near Lancaster. He arrived on scene, observed the horse, and saw a car swerve to avoid hitting it, as well as other cars nearby. He approached the horse, trying not to scare it into traffic, and then following it slowly in his vehicle until it stopped at the property located at 7038 West Avenue A-14. The horse attempted to reenter the property through a side fence near a corral. Callaway noticed the fence had several broken or loose boards. The horse was unable to get back into the yard. As the horse tried to get through the fence, Callaway heard several dogs begin to bark. He walked along the fence to determine if the dogs were loose and could injure or frighten the horse, or chase it into the street and cause a hazard, and observed the dogs were confined in makeshift kennels. The horse attempted to go through an open gate in a chain link fence that abutted the side of the garage, but seemed to have difficulty getting into the backyard due to debris and weeds. The horse returned to the front yard.

Callaway moved his vehicle in an attempt to block the horse from leaving the portion of the front yard where it was eating some weeds. Callaway then walked through the open gate into the backyard to see if there was a suitable corral for the horse. He did not see one, and returned to the front yard. He called Animal Control Sergeant Rachel Montez-Kemp and told her he needed to impound a loose horse. When she arrived about 20 minutes later, they placed the horse, which looked “thin,” inside the trailer. Montez-Kemp had worked with Animal Control for about 16 years, and indicated it was the department’s normal procedure to attempt to make contact with the owner of livestock before impounding an animal. Montez-Kemp knocked on the front door, and got no answer. She heard the sounds of puppies barking inside the home. She also knocked on the front window and the garage door and got no response. They had dispatch call the owners, and dispatch left a message on an answering machine. They heard several dogs barking in the backyard, a dog barking and whining inside the garage, and observed a strong smell of “excessive” fecal matter. Callaway, who is about six feet one inch tall, looked through a broken window in the upper corner of the garage door, where he observed a dog, in “unhealthful” conditions, as well as a treadmill and a slat mill, known to be used in training of fighting dogs.

Because Montez-Kemp thought the owner might not have heard them knocking over the dogs barking if the owner was in the backyard, she and Callaway entered the open gate of the backyard to attempt to locate the owner. In the backyard, they confirmed the corral was not suitable for the horse, and, upon walking further into the yard, they saw all of the dogs in the makeshift kennels were pit bulls, the breed most often used in dog fighting. Some of the dogs had scars and injuries on their bodies. Montez-Kemp was also familiar with the property after having responded to calls on prior occasions, including a call in 2008 wherein she found approximately 30 pit bulls. Montez-Kemp was experienced in blood sports and had investigated dozens of animal fighting cases in her career. The officers took photographs of the property. One of the property owners, Williams, arrived home that evening, and indicated the horse got out often. Callaway issued a citation to Williams and impounded the horse.

The next day, the officers sent Los Angeles County Sheriff’s Department Deputy Robert Ferrell an email about their observations. Ferrell and Montez-Kemp went to the property about two weeks later, and drove around the perimeter. There, Ferrell observed two different sets of kennels. The fencing was low, so the kennels were visible from the road, but Ferrell could not see dogs inside. Ferrell and Montez-Kemp took photographs of the property. Ferrell testified that he prepared his affidavit in support of the search warrant based on the written and oral reports received from Montez-Kemp and Callaway as well as his personal observations when he visited the property. He had 26 years of experience as a deputy sheriff and is a court-certified expert in “blood sports” and illegal animal fighting. In his affidavit, he identified his experience, the observations made at the property by Montez-Kemp and Callaway in October 2014, the prior calls to the property, and information about his trip to the property in November 2014. The affidavit stated that, based on the breed of the dog being kept on the property, the training devices observed, and the conditions in which the dogs were housed, combined with his observations and training in blood sports, it was Ferrell’s belief that evidence of illegal dogfighting would be found on the property.

The search warrant issued, and during the search officers recovered 19 pit bulls, many of which were emaciated or had sores or scars, as well as other dead animals, the slat mill device, and three documents relating to dog fighting. In February 2015, defendants Williams and Winbush were charged with 29 separate counts, including four felony counts of possession of fighting dogs and 17 counts of animal cruelty. They jointly filed a motion to suppress the evidence seized during the search and to squash and traverse the search warrant. The trial court denied the motion to suppress. Defendants entered no contest pleas to one count of possession of fighting dogs and one count of animal cruelty.

After they were sentenced, they appealed. On appeal, they argued the officers’ entry onto their property was unlawful because they did not have a warrant and there were no exigent circumstances. They argued that even if the loose horse created an emergency, the emergency ended once they had the horse secured in the trailer and there was no reasonable basis to continue their search into the backyard. They argued the subsequent search and seizure pursuant to a warrant was fruit of the tainted unconstitutional entry.

Held: The Second District Court of Appeal held that exigent circumstances justified the Animal Control officers’ looking into the garage of the property given that the horse was thin and being housed in an unsafe corral, the officers had been to the property on prior calls related to reported conditions of horses and pit bulls on the property, and they were reasonably concerned about a dog in the garage being in distress. The Court noted there was nothing unreasonable about Callaway looking through the broken window of the garage to determine whether the dog he heard whining was in genuine distress. The Court also noted that Callaway’s conduct was limited by the exigencies that justified the initiation—he only looked inside to determine if the dog needed to be assisted. The Court further determined that based on the facts known to the officers, it was not unreasonable for them to be concerned about the condition of the dogs they heard barking in the yard and to proceed into the yard to briefly check on the dogs.

Further, the Court concluded that even if the officers’ entry into the yard was not justified by exigent circumstances, the warrant was nonetheless valid. The Court found that Ferrell’s affidavit contained substantial supporting information, such as his being a certified expert in blood sport investigations, his personal observations from the roadway of the dog kennels that were the type used to house fighting dogs, Montez-Kemp’s experience and expertise in illegal dogfighting operations, that defendants’ property had been the source of many calls relating to pit bulls, the officers’ impounding of the horse due to unsafe housing, and observation of the slat mill device, contained substantial information to support probable cause even without the information obtained by the officers when they impounded the horse.

Thus, the Court affirmed the lower court’s denial of the motion to suppress the evidence and to quash and traverse the search warrant.

  1. Department’s use of force policy does not violate Second Amendment where there is a reasonable fit between the policy and important government interest. 

Mahoney v. Sessions, 2017 U.S. App. LEXIS 18149 (9th Cir. Sept. 19, 2017)

Facts: After the United States brought a civil action against the City of Seattle (“City”), alleging that the Seattle Police Department (“SPD”) engaged in a pattern or practice of excessive use of force, the City and the United States entered into a settlement agreement pursuant to which the City worked with a court-appointed monitor to create a Use of Force Policy (“UF Policy”) that would apply to SPD officers’ use of approved department firearms while on duty.

A group of approximately 125 SPD officers (“Appellants”) filed suit under 42 U.S.C. § 1983 against the City, including SPD and other related entities, challenging the constitutionality of the UF Policy. Appellants argued the UF Policy unreasonably restricts their right to use department-issued firearms for self-defense. In October 2014, the district court granted the City’s motion to dismiss, concluding the UF Policy did not burden conduct protected by the Second Amendment. Appellants appealed.

Held: The Ninth Circuit Court of Appeals held that the City’s use of force policy was constitutional under the Second Amendment because there was a reasonable fit between the policy and the City’s important government interest in ensuring the safety of both the public and its police officers.

In reaching its decision, the Court utilized the two-step inquiry it adopted following District of Columbia v. Heller and McDonald v. City of Chicago to determine whether a challenged law or regulation violates the Second Amendment. In the inquiry, the courts first ask whether the challenged law burdens conduct protected by the Second Amendment. If the court answers this question in the affirmative, the regulation is subject to Second Amendment protection, and the court then proceeds to the second step of the inquiry to determine the appropriate level of scrutiny to apply.

In analyzing the first step of the inquiry, the Court found that because the UF Policy did not resemble any of the presumptively lawful measures identified in Heller and because the parties did not produce any evidence that the UF Policy imposes a restriction on conduct that falls outside the historical scope of the Second Amendment right to use a firearm for self-defense, the Court assumed, without deciding, the UF Policy was subject to Second Amendment protection.

The Court then proceeded to the second step of the inquiry. It explained that to determine the proper level of constitutional scrutiny to apply to the UF Policy at the second step, the Court must consider (1) how close the challenged law comes to the core of the Second Amendment right, and (2) the severity of the law’s burden on that right. The Court explained that there is a long held view that there is a difference between the government exercising the power to regulate or license as a lawmaker, and the government acting as a proprietor, to manage its internal operations. Here, the UF Policy regulates Appellants’ use of department-issued firearms while acting in the course and scope of their official duties as police officers. The firearms regulated by the policy are issued by the City in its capacity as proprietor, and the UF Policy was adopted by the City as an employer to regulate the conduct of its police officers. The Court concluded that because the City has a significant interest in regulating the use of department-issued firearms by its employees, the application of intermediate scrutiny to the policy places the burden on the City to justify placing any restrictions on any Second Amendment rights of its employees, while also giving the City the flexibility to act as an employer.

Applying the second factor of considering the severity of the burden on the rights of citizens to use a firearm for the core lawful purpose of self-defense, the Court concluded that the UF Policy does not impose a substantial burden on the Second Amendment right to use a firearm for the core lawful purpose of self-defense. The Court noted that the policy expressly recognizes that Appellants may use their department-issued firearms in self-defense, including the use of deadly force with a firearm. The Court determined the nature of the burden imposed favored application of intermediate scrutiny.

The Court explained that intermediate scrutiny requires (1) the government’s stated objective to be significant, substantial, or important; and (2) a reasonable fit between the challenged regulation and the asserted objective. Here, the Court explained that the City has the important government objective of ensuring the safety of both the public and its police officers. At the second step of determining whether there is a reasonable fit between the UF Policy and the City’s asserted objective of ensuring the safety of the public and its officers, the Court concluded there was a reasonable fit between the UF Policy and the significant goal of ensuring the safety of the public and its police officers. It noted that the provisions of the policy advance the City’s important interest of ensuring public safety by mandating de-escalation techniques and reducing the likelihood that a firearm will be drawn or used where such force is not objectively reasonable or proportional to the threat or urgency of the situation, or necessary to achieve a law-enforcement objective.

Thus, the Court concluded the policy was constitutional under the Second Amendment.

CALIFORNIA CRIMINAL LAW

Sheriff cannot place former probationer in custody based on “IRC Want” after probation already expired because there is no remaining sentence to serve.

In re Barber, 2017 Cal. App. LEXIS 796 (2d Dist. Sept. 14, 2017)

Facts: At a probation violation hearing, Jesse Barber was sentenced to three years in prison, execution suspended, and continued on formal probation on the condition that he serve 365 days in jail. After he was remanded to the custody of the Los Angeles County Sheriff’s Department (“LASD”), LASD permitted Barber to complete his jail sentence through a work release program pursuant to California Penal Code section 4024.2. When Barber failed to complete the program, LASD issued an “IRC Want” for his arrest in 2010. LASD unsuccessfully attempted to locate Barber for approximately four months after the IRC want was issued. Barber appeared in court several times during that period, but no one was aware of the IRC Want. Barber had a subsequent probation violation hearing on January 4, 2012, at which time the court extended his probation to September 1, 2012. Barber had another probation violation hearing on June 5, 2012, at which time the court found that Barber was not in violation of probation and ordered his probation to remain in effect. Barber’s probation expired on September 1, 2012.

Barber was arrested on May 22, 2017 based on the IRC Want, and remained in custody from the day of his arrest. The public defender’s office filed a petition for writ of habeas corpus on Barber’s behalf, arguing that he was being held “without a current case.” The trial court denied the petition. Barber then filed a petition for writ of habeas corpus with the Court of Appeal, repeating his argument that jurisdiction over his case was lost when probation expired, and that detaining him without a hearing violate due process.

Held: The Second District Court of Appeal held that there was no legal basis to detain Barber because his probation expired and because Penal Code section 4024.2 did not provide authority to detain him. The Court began its analysis by explaining the well-established principle that once probation expires, a court loses jurisdiction to make an order revoking or modifying an order suspending the imposition of sentence or execution thereof and admitting the defendant to probation. Barber’s probation expired in September 2012. At that time, the Court explained, the trial court lost jurisdiction to take any action against him as a result of any violation of his probation that resulted from his failure to complete the work release program.

The Court also addressed respondents’ argument that Barber must serve the previously imposed jail “sentence” under Penal Code section 4024.2. Subdivision (c) of Section 4024.2 provides that, as a condition of participating in a work release program, “a person shall give his or her promise to appear for work … and shall sign an agreement that the sheriff may immediately retake the person into custody to serve the balance of his or her sentence if the person fails to appear for the program at the time and place agreed to, does not perform the work or activity assigned …” The subdivision further states that, where a peace officer has reasonable cause to believe a person has failed to perform his or her obligations under the work release program, “the peace officer may, without a warrant, retake the person into custody, or the court may issue an arrest warrant for the retaking of the person into custody, to complete the remainder of the original sentence.…” Respondents argued that Section 4024.2 allowed LASD to return Barber to custody to serve the remainder of the judicially imposed sentence of 365 days in county jail.

The Court interpreted “sentence” utilizing the rules of statutory construction. It concluded that “sentence” in Section 4024.2 could not refer to the three-year sentence because its execution was suspended. It found that “sentence” could only refer to the 365 days in county jail imposed as a condition of probation, but that, by operation of law, once Barber’s probation expired, that condition of probation ceased to exist. Thus, the Court explained, there was no “remainder of the original sentence” for Barber to serve.

Because there was no legal basis to detain Barber, the Court granted the petition for writ of habeas corpus and directed LASD to release Barber from the custody imposed in connection with the case.

DISCRIMINATION

  1. Failure to provide American Sign Language Interpreter to jail inmate may violate Americans with Disabilities Act.

Updike v. Multnomah County, 870 F.3d 939 (9th Cir. 2017)

Facts:  Plaintiff David Updike, a deaf individual since birth, was arrested on January 14, 2013 and detained in the Multnomah County Detention Center, a county jail facility in the State of Oregon. Updike had trouble communicating with jail staff using written English because American Sign Language (“ASL”) is his preferred form of communication. Using sign language, Updike signed to jail officials his need for an ASL interpreter, but was denied the request despite the fact that the County had a contract with an ASL interpreter service. Updike repeated this request to a jail nurse, but he was not provided one. Jail staff also denied Updike a computer, a Text Telephone (“TTY”) device, video relay services, and a pen and paper to facilitate communication, and staff did not provide closed captioning on the jail television Updike watched while detained. At his arraignment, the court failed to provide Updike an interpreter, so his arraignment was postponed until the next day when an interpreter was finally provided.

Updike filed suit in federal court, claiming, among other things, that the County violated the Americans with Disabilities Act (“ADA”) by denying him an ASL interpreter while detained in county jail. The district court granted the County’s motion for summary judgment, and Updike appealed.

Held: The Ninth Circuit Court of Appeals ruled that the suit could proceed. The Court held that a reasonable jury could find that by not providing a deaf inmate with an ASL interpreter, the county was “deliberately indifferent” to the inmate’s need for an accommodation in violation of the ADA.

In finding that the district court erred in granting summary judgment, the Ninth Circuit held that Updike pled adequate factual allegations describing the County’s failure to provide ASL interpreter services, and that a reasonable jury could find that this failure violated the ADA. The Court noted that the ADA requires public agencies to conduct a fact specific inquiry into whether providing a requested accommodation is reasonable in a given situation, and that there was no evidence the County undertook this inquiry.

The Court also found that there were disputed issues of fact whether the County’s failure to provide the requested accommodation was done with “deliberate indifference” since the County was clearly aware of Updike’s disability. The Court made clear, however, that it was not deciding that Updike was necessarily entitled to an interpreter as a matter of course, but rather that “upon notice of the need for an accommodation, a public entity must investigate what constitutes a reasonable accommodation.” Further, “if the public entity does not defer to the deaf individual’s request, then the burden is on the public entity to demonstrate that another effective means of communication exists or that the requested auxiliary aid would otherwise not be required.”

For a more detailed discussion relating to this case, please see Client Alert Vol. 32, No. 27, authored by James R. Touchstone and Keith F. Collins and available at www.jones-mayer.com.

  1. Jury improperly considered the race of a police shooting victim in deciding the department discriminated against the officers involved.

Diego v. City of Los Angeles, 15 Cal. App. 5th 338 (2d Dist. 2017)

Facts: Close to midnight on March 19, 2010, two Hispanic police officers shot and killed a 27 year-old black male who the officers thought was reaching into his waistband for a gun. In fact, the suspect was autistic and reaching for a cell phone clipped to his waistband.

Los Angeles Police Department policy required that the officers be taken off field duty while an investigation into the shooting took place. Ultimately, the officers received a reprimand for their conduct and were not recommended to return to field duty. They were instead assigned to various jobs that did not require field certification. When it became clear that the officers were not likely to be returned to field duty, they filed a discrimination suit, claiming they were denied field certification and promotional opportunities based on their race, citing examples of other officers of different races involved in shootings that were returned to active field duty.

After the trial court denied the City’s motion for a directed verdict, the jury found in favor of the officers, awarding them cumulative damages of almost $4 million.

Held: The Second District Court of Appeal held that the City of Los Angeles did not discriminate against the Hispanic police officers by keeping them off field duty following their fatal shooting of an unarmed black man. The Court held that the officers did not introduce evidence to discredit the City’s non-discriminatory reasons for “benching” the officers, which included risk management, public perception, and the officers’ own safety. Further, because the jury improperly considered the shooting victim’s race and not simply the officers’ race, the Court held the trial court should have granted the City’s motion for a directed verdict.

A claim for employment discrimination generally requires a burden shifting analysis. If the employee establishes he/she is a member of a protected class and was subject to a disparate employment decision, the burden shifts to the employer to demonstrate non-discriminatory reasons for the disparate treatment. If the employer meets this burden, the burden then shifts back to the employee to demonstrate these reasons were pretextual and that discriminatory action was the actual reason for the disparate treatment.

In this case, the Court found that the City’s decision not to certify the officers for field duty for risk-management and political reasons were valid, non-discriminatory justifications for the disparate treatment. The Court further determined that the jury should have been instructed not to consider the race of the shooting victim.

The Court also found that the trial court should have granted the City’s motion for a directed verdict because the officers’ discrimination claim was based on an improper legal theory.  Specifically, the officers claimed that they were denied field certification because they are Hispanic and the decedent was black. In support of this claim, they introduced evidence of a white officer who shot a Hispanic suspect and subsequently was returned to field duty.  Essentially, the officers’ theory was that the jury could and should consider whether they were treated differently by the Department not simply because of their race, but also based upon the race of the decedent.

The Court noted that the jury was not given any instruction regarding how to consider the race of the decedent in determining whether the officers’ race was a substantial motivating factor for the denial of their field certification. The Court determined that the absence of such an instruction allowed the officers to improperly argue that any decision based on race, including the race of the decedent, was sufficient to support a verdict finding discrimination. However, to prevail in an action for discrimination, a plaintiff must establish that unfair treatment was based on the plaintiff’s race, not the race of a third party. As the Court noted, “[a] claim that asserts disparate treatment based upon the race of the victim of police conduct is not an employment discrimination claim.”

The Court found that the City’s reasons for not certifying the officers for field duty, namely reducing the risk to the department if the officers were involved in another shooting, negative public perception, and the officers’ own safety were valid non-discriminatory reasons. Because the officers failed to discredit these non-discriminatory reasons for keeping them from field duty, their discrimination claim failed.

For a more detailed discussion relating to this case, please see Client Alert Vol. 32, No. 29, authored by James R. Touchstone and Keith F. Collins and available at www.jones-mayer.com.

CALIFORNIA PUBLIC RECORDS ACT

California Supreme Court rules on public access to automated license plate scanner data.

American Civil Liberties Union Foundation v. Superior Court, 3 Cal. 5th 1032 (2017)

Facts:  The American Civil Liberties Union (“ACLU”) of Southern California and the Electronic Frontier Foundation (“EFF”) submitted a series of California Public Records Act (“CPRA”) requests pursuant to California Government Code section 6253 for law enforcement records from the Los Angeles Police Department (“LAPD”) and the Los Angeles Sheriff Department’s (“LASD”) Automated License Plate Reader (“ALPR”) database.

The data at issue was collected through high-speed computer-controlled cameras mounted on fixed structures or on patrol cars that capture an image of the license plate of each vehicle passing through the camera’s optical range. The ALPR system uses computer recognition software which simultaneously matches the imaged license plate number against a list of plate numbers associated with crimes, AMBER alerts or outstanding warrants. Although only about 0.2% is matched to suspected crimes, the scanned plate, date, time and location are stored on confidential, restricted LAPD and LASD networks that can be queried when new investigations arise. The scans record an estimated 1.2 to 1.8 million plates per week and are retained by LAPD for 5 years and LASD for 2 years.

The ACLU and EFF requested data from Real Parties, LAPD and LASD, for a one-week period in August 2012. LAPD and LASD produced records related to the regulation and use of the ALPR technology; however, the ALPR records from the database were withheld, based upon the exemptions afforded law enforcement investigation records under California Government Code sections 6254(f) and (k), and California Government Code section 6255, which became the subject of writ proceedings brought by the ACLU and EFF in Los Angeles Superior Court.

The trial court held the raw data was exempt under Section 6254(f), as records of investigation, and further found that the Section 6255 “catchall” exemption applied because the public interest in nondisclosure clearly outweighed the public interest in disclosure of such data.

The Court of Appeal affirmed the trial court’s judgment that the data was exempt as “records of investigation” under Section 6254(f) and did not review whether the “catchall” exemption would apply under Section 6255.

The California Supreme Court granted review.

Held: The California Supreme Court affirmed the superior court’s decision to exempt raw ALPR data from disclosure under the CPRA. The Supreme Court determined that, on the facts of the particular case, the public interests served by not disclosing the sought after records clearly outweighed the public interests served by disclosure of the ALPR data pursuant to California Government Code section 6255. The Supreme Court, however, declined to find that the ALPR data was exempt as a record of investigation pursuant to Government Code section 6254(f).

The Supreme Court disagreed with both the trial court and the appellate court that the data at issue was subject to Section 6254(f)’s exemption as records of investigation. The Court cited the constitutional “imperative” to “broadly construe” the CPRA in a manner that favors the people’s right of access to the conduct of government operations and to “narrowly construe” any exemptions under the CPRA.

The Court, however, agreed with the judgment of the trial court that the public interest in nondisclosure “clearly outweighed” the public interest in disclosure of the APLR data under the California Government Code section 6255 “catchall” exemption. The Court, however, remanded the matter for the trial court to consider whether “the raw data may be reasonably anonymized or redacted such that the balance of interests would shift and disclosure of the data would be required under the CPRA.”

The CPRA

In making its decision, the Court noted the CPRA was enacted in 1968 to ensure public access to information concerning the conduct of the people’s business “as a fundamental and necessary right of every person in the state” to inspect any public record, subject to the express exceptions provided therein.

Section 6254(f) “Record of Investigation Exemption”

The Court reviewed the exception to the CPRA asserted by Real Parties, LASD and LAPD, as exempt records of investigation under Section 6254(f), which protects “records of … investigations conducted by, or records of intelligence information or security procedures of… any state or local police agency …” from public disclosure. The Court discussed the definition of “investigation” in the law enforcement context, focusing on its previous interpretation in Haynie v. Superior Court, and noted that there was a significant factual distinction from the investigatory stop at issue in Haynie, where police stopped an individual driver based on a tip, and this case, which concerned the collection of enormous amounts of bulk data. The Court stated that the Haynie case “at least implied an inquiry should be somewhat targeted” at suspected violations of law and “the mere fact of an inquiry is not enough.”

The Court noted that, in Haynie, the “animating concern” behind the records of investigation exemption appeared to be that such records reveal (and might deter) certain law enforcement choices that should be kept confidential, such as investigatory methods, which are “far less likely to be revealed” where data are collected “en masse,” such as here, through the collection of ALPR data.

Most significantly, the Court held that the ALPR records could not be considered exempt as investigatory records because they were not conducted as part of a targeted inquiry into a crime, or crimes, and the Court opined: “the fact that a database has been searched” or a plate has been matched “did not increase the concerns identified in Haynie with respect to the database.” As such, the Court found that the investigatory records exemption did not apply to the ALPR data.

Section 6255(a) “catchall provision”

The Court found that Section 6255(a)’s catchall exemption applied on the facts of the case before it. The Court previously had requested additional briefing from the parties on whether the catchall exception applied to any or all of the ALPR data collected by LAPD and LASD. The Court noted that the CPRA allowed an agency to withhold a public record if the agency demonstrates “that on the facts of the particular case the public interests served by not disclosing the record clearly outweigh the public interest served by disclosure of the record.”

The Court explained that this provision of the CPRA “contemplates a case by case balancing process…” which burdens the proponent of nondisclosure to show “a clear overbalance on the side of confidentiality.”

The Court reviewed the public interest factors de novo and accepted the trial court’s factual findings, “as long as they are supported by substantial evidence.” The Court agreed that the balance of interests clearly weighed against disclosure of the raw ALPR data, which included unaltered license plate scan data that consisted of the plate number, date, time and location information of each license plate recorded. The Court recognized that, although the public has an interest in the extent to which the ALPR technology threatened the privacy of the plate owners, the act of revealing the data would itself jeopardize the privacy of everyone associated with a scanned license plate. Accordingly, the Court found that the public interest in nondisclosure clearly outweighed any public interest served by disclosure of the data.

The Court further opined that Section 6255(a) should not allow “vague concerns,” such as disclosure of mobile ALPR patrol patterns “to foreclose the public’s right of access,” without record of evidence to support it. The Court determined that the trial court erred in holding that anonymized data would not alter the balance of interests and placed too much emphasis on the possibility of frustrating law enforcement efforts. The Court, therefore, remanded the case to the trial court for further factual development on the issue of whether the raw data could effectively be anonymized such that disclosure ultimately would be appropriate.

For a more detailed discussion relating to this case, please see Client Alert Vol. 32, No. 25, authored by James R. Touchstone and Deborah P. Knefel and available at www.jones-mayer.com.





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