1. Individual has established Fourth Amendment right to privacy against intrusion involving visual search of naked body, where intrusion into privacy outweighs given governmental interests.

Ioane v. Hodges, 2018 U.S. App. LEXIS 25569 (9th Cir. Sep. 10, 2018)

Facts: In June 2006, agents from the IRS Criminal Investigation Division, including Supervisory Special Agent for the IRS Criminal Investigation Division Jean Noll, arrived at the residence of Michael Ioane, Sr. (“Michael”) and Plaintiff Shelly Ioane (“Shelly” or “Plaintiff”) to conduct a search. Michael had been under investigation for criminal tax fraud and conspiracy. The agents had a lawful search warrant for execution at the Ioane home. Before executing the search warrant, agents had learned that the Ioanes had registered weapons and that these weapons likely would be at their home. The search warrant authorized the IRS agents to search the Ioane residence for, among other things, records, computers, computer-related equipment, and computer storage devices.

Only Michael and Shelly were home at the time of the search. The IRS agents told Michael and Shelly that they could stay on the premises if they cooperated with the agents conducting the search. The agents informed the Ioanes that if they chose instead to leave the premises, they would not be allowed to return. Both Ioanes stayed on the premises, and sat in the kitchen while the agents conducted the search.

Michael needed to use the bathroom at some point early in the search. A male agent escorted Michael to the bathroom and made a quick search of the bathroom area—opening a couple of drawers and looking in the shower—before exiting and closing the door behind him. The male officer stood outside the closed bathroom door while Michael relieved himself.

Shelly told the agents that she too needed to use the bathroom about a half an hour into the search. Agent Noll escorted her to the bathroom. When Shelly stepped inside and started to close the door, Agent Noll told Shelly that she had to come inside, too. Shelly asked Agent Noll to wait outside, but Agent Noll did not. Agent Noll told Shelly to remove her clothing so that she could make sure Shelly did not have anything hidden on her person. When Shelly objected, Agent Noll explained that she needed to make sure Shelly did not hide or destroy anything, and that this was standard procedure. Shelly, who was wearing a long sundress, pulled up her dress so Agent Noll could see that she was not hiding anything. According to Shelly, Agent Noll made Shelly hold up her dress while she relieved herself, using one hand to hold up her dress and the other to pull her underwear down. Agent Noll faced Shelly while Shelly relieved herself, and when Shelly was finished, Agent Noll escorted her back to the kitchen.

Shelly Ioane filed suit for damages under 42 U.S.C. section 1983. Shelly alleged that Agent Noll violated her Fourth Amendment right to bodily privacy. Agent Noll moved for summary judgment, arguing that she was entitled to qualified immunity. After the District Court denied Agent Noll’s motion, she appealed.

Held: The Ninth Circuit Court of Appeals explained that “an officer is entitled to qualified immunity unless (1) the facts, construed in the light most favorable to the plaintiff, demonstrate that the officer’s conduct violated a constitutional right, and (2) the right was clearly established at the time of the asserted violation.” Saucier v. Katz, 533 U.S. 194, 201, 121 S. Ct. 2151, 150 L. Ed. 2D 272 (2001)

Though the Ninth Circuit had never established a standard for when an officer’s intentional viewing of an individual’s naked body was constitutionally permissible under the Fourth Amendment, “‘[t]he touchstone of the Fourth Amendment is reasonableness.’” Florida v. Jimeno, 500 U.S. 248, 250 (1991). The Court said that determining reasonableness here involved balancing the level of intrusion upon a person’s privacy against the degree to which the search is needed to further legitimate governmental interests. “‘(1) [T]he scope of the particular intrusion, (2) the manner in which it is conducted, (3) the justification for initiating it, and (4) the place in which it is conducted’” are the critical factors in this assessment. Byrd v. Maricopa Cty. Sheriff’s Dep’t, 629 F.3d 1135, 1141 (9th Cir. 2011).

Citing Grummett v. Rushen ,779 F.2d 491, 492-93 (9th Cir. 1985) and Sepulveda v. Ramirez, 967 F.2d 1413 (9th Cir. 1992) to illuminate the parameters of assessing the scope of privacy intrusion where the naked body was involved, the Court determined the level of privacy intrusion on Shelly was significant. It involved the naked body, the most “basic subject of privacy.” York v. Story, 324 F.2d 450, 455 (9th Cir. 1963). Unlike the prison inmates in Grummett and the parolee in Sepulveda, Shelly’s privacy rights had not been reduced. Indeed, she was not even detained nor the subject of the search. Thus, the scope of Agent Noll’s intrusion was significant. Agent Noll stood facing Shelly while Shelly relieved herself and was in close proximity inside the bathroom. The manner the agent conducted the intrusion thus also suggested unreasonableness.

The Court found Agent Noll’s justification for initiating the search was not significant. Agent Noll said that she wanted to make sure Shelly did not destroy evidence or have anything dangerous, but Shelly and Michael were not detained during the execution of the search warrant at the home. If the agents really feared evidence destruction or that Shelly had something dangerous on her person, they would not have offered Shelly the choice at the start of the search to leave the premises. In the thirty minutes before Shelly went to the bathroom, the officers evidently never conducted a pat-down search. Moreover, the search warrant authorized only the search of the premises, not the individuals on the premises. And other officers had already checked the bathroom, and had allowed Michael to use it while an agent stood outside. Agent Noll’s justification for initiating the search also suggested unreasonableness. The Court found the intrusion even more “egregious” considering that the search was conducted in the Ioane home, a place the law recognizes as having “heightened” privacy interests.

The Court thus found that Agent Noll’s justifications of officer safety and evidence preservation as government interests were outweighed by the severity of the privacy intrusion upon Shelly. The Court accordingly held Agent Noll’s actions were unreasonable and violated Shelly’s Fourth Amendment rights.

The Court next considered the second prong of the qualified immunity test, whether the constitutional right was clearly established at the time of Agent Noll’s violation. To be clearly established, “‘[t]he contours of the right must be sufficiently clear that a reasonable official would understand that what [she] is doing violates that right.’ Anderson v. Creighton, 483 U.S. 635, 640 [](1987).The Court noted that this high standard “‘protects all but the plainly incompetent or those who knowingly violate the law.’” Malley v. Briggs, 475 U.S. 335, 341 (1986)).

Looking at precedent, the Court explained that by 2006, the right to bodily privacy had been established by the York, Grummett, and Sepulveda. And the Supreme Court’s decision in Ybarra v. Illinois, 444 U.S. 85 (1979) established that being present at the execution of a search warrant did not negate a person’s right against unreasonable searches. The Court found it was clearly established that in the absence of legitimate government interests (as the Court had found as described earlier), such a significant intrusion as had occurred to Shelly could not be allowed.

The Court had explained that Agent Noll did not have a reasonable belief to suspect Shelly was armed and dangerous. The Court explained that the Constitution prohibits an officer from conducting a weapons pat-down of an individual during execution of a search warrant in the absence of a reasonable belief that the individual is armed and dangerous. The Court found that Agent Noll’s decision to monitor Shelly while Shelly used the restroom, when Agent Noll clearly was not authorized to conduct a weapons pat down, arguably qualified as “plainly incompetent.”

The Ninth Circuit therefore held that a reasonable officer in the Agent Noll’s position would have known that such a significant intrusion into bodily privacy, in the absence of legitimate government justification, was unlawful. The agent therefore was not entitled to qualified immunity. Accordingly, the Court affirmed.

  1. District Court properly denied a motion to suppress where the suspect’s personal belongings would have been inevitably discovered during booking procedures.

United States v. Peterson, 2018 U.S. App. LEXIS 25029 (9th Cir. Sept. 4, 2018)

Facts: In August 2015, King County police officers arrested Kevin Peterson on outstanding warrants. The arresting officer instructed Peterson to remove his backpack so that he could be handcuffed. The office waited until after he had handcuffed and secured Peterson in the back of the patrol car to search Peterson’s backpack. When the officer opened the backpack, he discovered a handgun, which officers on the scene soon determined was stolen. The officers informed Peterson of additional charges for possession of the firearm, and then Peterson was transported to the county jail. During the transport, Peterson, in double restraints, violently kicked the patrol car’s rear window, failed to listen to officer commands to stop, and was pepper sprayed. Afraid Peterson would be able to kick out the rear window and potentially cause a collision, the officer moved across multiple lanes of traffic to pull off the interstate and reapply Peterson’s restraints. The District Court later found Peterson’s actions during transport to the jail were “very dangerous and created a substantial risk of harm” to the officers. Peterson was booked there on charges of unlawful possession of a firearm and possession of a stolen firearm, both felony offenses.

After he was indicted for being a felon in possession of a firearm, Peterson moved to suppress the handgun evidence. Though the District Court found that the warrantless search of Peterson’s backpack was not justified as a search incident to arrest, it concluded that the gun inevitably would have been discovered during an inventory search of the backpack during Peterson’s booking. Thus, the Court denied Peterson’s motion to suppress. Along with other findings, the District Court found Peterson was guilty of being a felon in possession of a firearm. Peterson appealed the Court’s denial of his motion to suppress.

Held: The Ninth Circuit Court of Appeals affirmed the lower court’s denial of Peterson’s motion. The Court of Appeals explained that the exclusionary rule allows courts to suppress evidence obtained as a result of an unconstitutional search or seizure. Mapp v. Ohio, 367 U.S. 643, 655-66, 81 S. Ct. 1684, 6 L. Ed. 2d 1081, 86 Ohio Law Abs. 513 (1961). The exclusionary rule does not apply, however, “if the government establishes by a preponderance of the evidence that the unlawfully obtained information ‘ultimately or inevitably would have been discovered by lawful means[.]’ Nix v. Williams, 467 U.S. 431, 444, 104 S. Ct. 2501, 81 L. Ed. 2D 377 (1984); [] United States v. Andrade, 784 F.2d 1431, 1433 (9th Cir. 1986) (holding that potentially unconstitutional search incident to arrest did not warrant application of the exclusionary rule because police would have found the evidence while taking inventory of the defendant’s belongings during booking).”

Here, the Ninth Circuit observed that the District Court had written that had the officers arrested the defendant only on misdemeanor warrants, and otherwise complied with state law regarding certain arrest procedures, the defendant would have been able to post bail, thereby avoiding the booking and inventory search altogether. But the District Court had credited the arresting officer’s testimony that he “absolutely” would have booked Peterson on obstruction of law enforcement officers and resisting arrest charges had he not searched the backpack and discovered the handgun to support a felony charge. The Court of Appeals thus held that in denying the defendant’s motion to suppress the handgun found in his backpack, the District Court properly concluded that the handgun inevitably would have been discovered in an inventory search at the time of booking for obstruction and resisting arrest charges that the arresting officer described. Thus, the Ninth Circuit affirmed the District Court’s denial of Peterson’s motion to suppress. The Court also reversed on other claims, vacated Peterson’s sentence, and remanded for resentencing.

  1. Border Patrol agents’ substantial experience and inferences made from their factual observations provided particularized and objective basis for suspecting Defendant of criminal activity; thus, their stop of Defendant was not a Fourth Amendment violation.

United States v. Raygoza-Garcia, 2018 U.S. App. LEXIS 24853 (9th Cir. Aug. 31, 2018)

Facts: In March 2014, Defendant Noe Raygoza-Garcia was driving his red Dodge Neon northbound on a California interstate highway about 70 miles from the United States-Mexico border. About 11:30 a.m., he passed Murrieta Border Patrol Station Agents Manuel Rivera and Juan Aguayo Robles in their vehicle as they observed northbound traffic. Rivera had been a Border Patrol agent for thirteen years and Aguayo six, and both had significant experience specifically in investigating drug smuggling. The agents stated that they saw the Neon slow down from about a legal 70 mph to 50 to 55 mph so suddenly that that other vehicles behind the Neon had to go around it, and that Defendant had a rigid posture. The agents said the driving behavior and posture were common to drug smugglers.

The agents decided to follow the Neon. They noticed the Neon had a Baja Mexico license plate and conducted a vehicle records check, which showed the Neon had crossed the United States-Mexico border earlier that morning. The vehicle had also crossed the border multiple times in the prior month and had been referred to secondary inspection at the border, but no contraband was ever discovered. Agent Rivera testified that the recent secondary referrals raised his suspicion because, in his experience, drug organizations often will cross the border several times without contraband to develop a clean crossing history for the vehicle. After a database search, the agents determined Raygoza-Garcia was not the same person who had driven the Neon across the border that morning. The agents said that switching drivers was a drug smuggling operations tactic.

The agents also stated that Defendant drove erratically ten car-lengths in front of the agents’ vehicle, swerving and drifting among lanes in a manner the agents thought similar to the driving behavior of drug smugglers that they had seen before (though at a later evidentiary hearing, Defendant said he had never changed lanes). The agents said Defendant slowed down again as he passed a parked police vehicle and gripped the steering wheel with both hands, which the agents believed was a sign of nervousness. The agents then stopped Defendant’s vehicle. Defendant gave consent for the Agents to conduct a canine sniff and search the car, which yielded packages of methamphetamine and heroin.

Defendant moved to suppress the narcotics evidence, arguing that the initial stop of his vehicle was not supported by reasonable suspicion and violated the Fourth Amendment. The District Court denied the motion to suppress, finding the agents’ experience and the facts provided a particularized and objective basis for suspecting Defendant of criminal activity, which constituted reasonable suspicion. Defendant appealed.

Held: The Ninth Circuit Court of Appeals held that the agents had reasonable suspicion to stop Defendant’s vehicle because the agents had a particularized and objective basis for suspecting Defendant was committing a crime. In reaching its conclusion, the Court gave “due weight” to the “‘inferences drawn by the district court and the officers on the scene, not just the district court’s factual findings.’” United States v. Arvizu, 534 U.S. 266, 278, 122 S. Ct. 744, 151 L.Ed.2d 740 (2002).

The Court explained that Border Patrol Agents on roving border patrols can “conduct ‘brief investigatory stops’ without violating the Fourth Amendment if the stop is supported by reasonable suspicion to believe that criminal activity may be afoot.” United States v. Valdes-Vega, 738 F.3d 1074, 1078. In the context of stops near the border, “‘the totality of the circumstances may include characteristics of the area, proximity to the border, usual patterns of traffic and time of day, previous alien or drug smuggling in the area, behavior of the driver, appearance or behavior of passengers, and the model and appearance of the vehicle.’” United States v. Brignoni-Ponce, 422 U.S. 873, 884-85, 95 S. Ct. 2574, 45 L. Ed. 2d 607 (1975)).

Here, the Court explained that the Border Patrol agents had substantial experience and determined, based on that experience, that many factors, including the vehicle’s recent crossing history, the change in drivers on the same day, the distracted driving, and the proximity of the vehicle to the border, all suggested the possibility of drug smuggling activity.

The Court noted also that the District Court heard testimony from the Agents and Raygoza-Garcia and evaluated their credibility. The Court concluded that under the totality of the circumstances, and giving due weight to the agents’ observations and the District Court’s factual findings, the agents had reasonable suspicion to stop Defendant. The Court thus affirmed.

  1. Time limits for speaking in city’s transit board meeting are not a deprivation of one’s First Amendment rights.

Ribakoff v. City of Long Beach, 27 Cal. App. 5th 150 (2nd Dist. 2018)

Facts: Joe Ribakoff frequently attended at meetings of the Long Beach Public Transportation Company Board of Directors. At a board meeting in August 2015, he filled out a public speaker’s card and spoke on agenda item 10 for the three minutes allowed each public speaker on an agenda item. He rose to speak a second time on the same agenda item during the Board’s deliberation and voting period, but was told by the Board Chairperson he had used his three minutes. Though the chair of the Board was advised by general counsel that the Board had the power to allow Ribakoff additional time, no additional time was granted. Ribakoff’s microphone was turned off. A Long Beach police officer who routinely provided security for meetings then spoke with Ribakoff, after which Ribakoff left the speaker’s podium, and then the meeting room. The same police officer told him after the meeting that if he spoke out of turn again he would certainly be arrested, citing Long Beach Municipal Code section 2.03.140.

Ribakoff filed suit against the Board, City of Long Beach, and others, alleging, among other claims, violations of the Ralph M. Brown Act (“the Brown Act”; Government Code, section 54950 et seq.) and of his right to freedom of speech under the United States Constitution’s First Amendment. Ribakoff argued that, because the Board’s speech rules applied only to members of the public and limited any speech by a member of the public to a specified time for any particular agenda item, each such rule is a content based rule proscribed by the Brown Act and by the free speech clause of the First Amendment. He also alleged that Long Beach Municipal Code section 2.03.140 was overbroad, vague, and “not content neutral, and … a prior restraint.” After a bench trial, the trial court entered judgment for defendants.

Held: California’s Second District Court of Appeal first explained that because Ribakoff’s Brown Act arguments were interwoven with his free speech claims and the municipal code contentions, the Court considered these claims together. The Court held that the Board’s speech rules were not content based rules proscribed by the Brown Act or by the First Amendment’s free speech clause because they applied only to members of the public and limited any speech by a member of the public to a specified time for any particular agenda item.

The Court noted that the Brown Act “‘is intended to ensure the public’s right to attend the meetings of public agencies[,] … to facilitate public participation in all phases of local government decisionmaking and to curb misuse of the democratic process by secret legislation of public bodies.’ (International Longshoremen’s & Warehousemen’s Union v. Los Angeles Export Terminal, Inc. (1999) 69 Cal.App.4th 287, 293 []).” Long Beach Municipal Code section 2.03.140 provides: “No person without authority of law shall disturb, interrupt, or break up any meeting or session of the Council, or of any legally constituted board or commission of the City.” Ribakoff argued that neither Long Beach Municipal Code section 2.03.140, nor the Board’s “criminal speech rules” were authorized by the Brown Act. The Court explained that as a charter city, the City of Long Beach had plenary power over its municipal affairs, including in the adoption of ordinances; the Brown Act was not involved. Even if it was relevant, Government Code, section 54954.3 (b)(1) of the Brown Act “expressly permit[ted] legislative bodies of local agencies to adopt reasonable time limitations on public testimony.”

Ribakoff also claimed that the three-minute time limits imposed by the Board’s speech rules violated his First Amendment rights, contending that the rules existed to prevent the expression of views the Board did not want to hear in a public forum. The Court found this claim without factual basis because the facts showed that his second request to speak was denied because he had already used all of the time allotted for that specific agenda item during his first time speaking on it. The facts did not show that his speech’s content was the reason for the denial of additional time for Ribakoff on that agenda item.

Citing White v. City of Norwalk, 900 F.2d 1421 (9th Cir. 1990), the Court observed that “[p]rinciples that apply to random discourse may not be transferred without adjustment to [a] more structured situation.” While citizens have an “‘enormous first amendment interest’” in meetings like the city board meeting here, such a meeting was still a “governmental process with a governmental purpose” with an agenda to be addressed. Where speech “‘disrupts, disturbs or otherwise impedes the orderly conduct,’” the Court explained, speakers are subject to restriction. The Court also observed that the Ninth Circuit in Kindt v. Santa Monica Rent Control Bd. (9th Cir. 1995) 67 F.3d 266 addressed similar rules restricting public comment to three minutes per agenda item in a city board meeting. Kindt explained that the regulations imposing the three-minute rule were “the kind of reasonable time, place, and manner restrictions that preserve a board’s legitimate interest in conducting efficient, orderly meetings.” Thus, the Court found that precedent showed that a rule providing for three minutes per speaker did not violate the First Amendment. Concluding that Ribakoff’s other claims failed also, the Second District Court of Appeal accordingly affirmed.

  1. The government imposed an unconstitutional prior restraint when it prohibited an officer from speaking about ‘anything’ negative relating to police department or city.

Barone v. City of Springfield, 2018 U.S. App. LEXIS 25156 (9th Cir. Sep. 5, 2018)

Facts: Thelma Barone began working for the Springfield Police Department (“Department”) in 2003. As a Community Service Officer II (“CSO II”), she served as a Department liaison to the City’s minority communities, and focused on victim advocacy. Throughout her tenure, Latino community members complained to Barone about racial profiling by the Department. She brought these complaints to the attention of Department leadership. Starting in spring 2013, the complaints became more frequent.

The Department began investigating Barone in 2014 for two Department-related incidents. One involved whether Barone obtained proper approvals during a student tour she led through the Department. In the second incident, a Latina notified Barone of a potential crime. Barone, unable to reach a sergeant about the crime, left a message with dispatch asking the sergeant to return her call. The sergeant did not do so because he said he was never informed that the call was about a potential crime. The parties disagreed whether Barone had told dispatch that she wanted to talk to the sergeant about a potential crime.

Then in February 2015, Barone attended a public event intended for the public to meet her as a Department representative. The Department paid Barone to attend, she wore her uniform, and her supervisor attended. She was aware that she was at the event as a Department representative. An event audience member asked Barone whether she was aware of increasing community racial profiling complaints. She replied that she “had heard such complaints.”

Barone was placed on administrative leave the next week, ostensibly for her dishonesty in the two pre-2015 Department incidents. She remained on leave after the Department found the following month that she had violated the Department’s code of conduct in the two pre-2015 Department incidents.

She was suspended in July 2015. The Department informed her that she would be required to sign a Last Chance Agreement (the “Agreement”) when she returned to work, or else be terminated. The Agreement was amended to address Barone’s concerns that it did not allow her to report on racial profiling and discrimination. Paragraph 5(g) of the amended Agreement stated: “…Employee will not speak or write anything of a disparaging or negative manner related to the Department/Organization/City of Springfield or its Employees. Employee is not prohibited from bringing forward complaints she reasonably believes involves discrimination or profiling by the Department.” The Agremeent also barred her from publicly criticizing or ridiculing the Department and barred her from releasing confidential information. Barone refused to sign, and was terminated.

Barone brought a 42 U.S.C. section 1983 action against the City of Springfield and several of its employees (collectively, “Appellees”) for First Amendment retaliation, imposing an unlawful prior restraint via the amended Agreement, and for municipal liability under Monell v. Dep’t of Soc. Servs., 436 U.S. 658 (1978). The District Court denied her motion for partial summary judgment on the prior restraint claims. The District Court granted summary judgment in favor of Appellees on all of her claims. Barone appealed.

Held: The Ninth Circuit Court of Appeals initially addressed Barone’s First Amendment retaliation claim. She argued that Appellees retaliated after her comments at the February 2015 event. The Court explained that for First Amendment retaliation claims, under Eng v. Cooley (552 F.3d 1062 (9th Cir. 2009)), Barone had to show that she spoke as a private citizen rather than a public employee.

The Court observed that Barone’s speech at the event was clearly part of her job duties; that she spoke while clothed in official attire, while on the clock, and in a location she had access to by virtue of her position; that she was aware that she was speaking as a representative of the Department, and discussing her work with the Department; and that her speech at issue was in response to an inquiry about racial profiling complaints, typical of those she regularly received in her capacity as CSO II. Her speech here was “inextricably intertwined” (Hagen v. City of Eugene, 736 F.3d 1251, 1259 (9th Cir. 2013)) with her duties as a CSO II. These facts supported the Court’s conclusion that Barone spoke as a public employee, not as a private citizen. The Court thus concluded that her speech was not entitled First Amendment protections, and her retaliation claim failed. Accordingly, the Court affirmed the District Court on Barone’s First Amendment retaliation claim.

The Court next turned to Barone’s prior restraint claim. The Court explained that a test set forth in Pickering v. Bd. of Educ. of Twp. High Sch. Dist. 205, 391 U.S. 563, 564-65 (1968) described the two-step method for evaluating the competing interests of the interests of the government as an employer in regulating its employees’ speech on the one hand; and those public employees’ First Amendment rights as private citizens on the other. The test first asks whether the restriction affects a government employee’s speech as a citizen on a matter of public concern. If it does, the test asks whether the relevant government entity had an adequate justification for treating the employee differently from any other member of the general public. If not, the unconstitutional prior restraint is established.

The Court observed that Paragraph 5(g) of the amended Agreement barred plaintiff from saying or writing “anything” negative about the Department or the City. The Court found this bar too overbroad as it would even prohibit Barone from criticizing, for example, the cleanliness of the city. Appelllees’ failed to provide adequate justification how the phrase “anything of a disparaging or negative manner” in Paragraph 5(g) could be read otherwise. The Court held that Paragraph 5(g) restrained plaintiff’s speech as a private citizen on matters of public concern.

Appellees argued that the City had an interest in maintaining efficient, effective operation of the police department by protecting the public’s opinion of police, but the Court found this an avoidance of accountability. Appellees contention that not restraining speech as in Paragraph 5(g) would risk Barone’s disruptive speech in the future was also unjustified because the paragraph’s sweeping breadth encompassed speech on matters that had little connection to preventing Department-workplace disruption. The Court found Appellees did not provide adequate justification sufficient to warrant Paragraph 5(g)’s overbroad restrictions. The Court therefore held that the amended Agreement which plaintiff was required to sign before returning to work was an unconstitutional prior restraint. The Court thus reversed on the prior restraint claim.

Addressing Barone’s claim of municipal liability under Monell, the Court held that there was a genuine issue of material fact about whether the City Manager delegated final policymaking authority over employee discipline to the Police Chief. If such authority was delegated, the City would be liable under Monell. The Court therefore reversed and remanded for consideration of whether the City could be held liable for the Police Chief’s conduct in requiring plaintiff to sign the amended Agreement.

  1. Arrests of minor students on school grounds unreasonable where the arrests were not justified at their inception nor reasonably related in scope to the circumstances.

Scott v. County of San Bernardino, 2018 U.S. App. LEXIS 25568 (9th Cir. Sep. 10, 2018)

Facts: In October 2013, a middle school’s assistant principal asked school resource officer San Bernardino County Sheriff’s Department Deputy Luis Ortiz to speak to a group of seventh grade girls who had been involved in ongoing bullying and fighting. School officials had the girls wait in a classroom for Deputy Ortiz. The group of students included both aggressors and victims, and the school did not identify or separate them. When he arrived on school grounds, Deputy Ortiz initially intended to verify the information the school had given him and to mediate the conflict. Within minutes, however, Deputy Ortiz concluded that the girls were being unresponsive and disrespectful. Audio recording of the incident, however, showed the girls were mostly silent. Deputy Ortiz decided to arrest the girls because, as he explained to them, he was not “playing around” and taking them to jail was the easiest way to “prove a point” and “make [them] mature a lot faster.” Deputy Ortiz stated that he did not care “who [was] at fault, who did what” because “it [was] the same, same ticket, same pair of handcuffs.” The children were handcuffed, and six of the seven children were driven in police vehicles to the County Sheriff’s Department, eventually to be released to their parents. The remaining child, the alleged aggressor of the fighting, was released to her father on campus. The school filed no criminal charges, nor took any disciplinary action against the students.

The parents of three of the students sued the arresting officers and the County of San Bernardino for unlawful arrest in violation of state laws and the Fourth Amendment. The District Court denied the defendants qualified immunity and granted summary judgment in favor of the students. Defendants appealed.

Held: The Ninth Circuit Court of Appeals held that Deputy Ortiz was not entitled to qualified immunity. In reaching its conclusion, the Court first explained that to determine whether a police officer is entitled to qualified immunity, courts must ask (1) whether he violated a constitutional right, and (2) whether the right was “clearly established” under the law at the time of the violation. Saucier v. Katz, 533 U.S. 194, 200 (2001).

Addressing the constitutional question, the Court of Appeals explained that the Supreme Court held in New Jersey v. T.L.O. 469 U.S. 325, 333 (1985) that the Fourth Amendment’s prohibition on unreasonable searches and seizures applies to searches conducted by public school officials. T.L.O. provided a two part test to determine reasonableness in school settings: “‘first, one must consider “whether the action was justified at its inception;” second, one must determine whether the search as actually conducted “was reasonably related in scope to the circumstances which justified the interference in the first place.”‘“ Id. T.L.O.’s test in a school setting, the Ninth Circuit explained, operates as a “special needs” exception to the Fourth Amendment’s warrant and probable cause requirements. Vernonia Sch. Dist. 47J v. Acton, 515 U.S. 646 (1995). The test was later applied by the Ninth Circuit to seizures made by public school officials in the school setting.

Here, Deputy Ortiz had no particularized suspicion as required by the Fourth Amendment since school officials only conveyed generalized allegations of group fighting. Moreover, the special needs doctrine allowed consideration of the actual motivations of officers, under Ashcroft v. al-Kidd, 563 U.S. 731 (2011), and Deputy Ortiz explicitly said that he did not care who was at fault – all of the kids were arrested to “prove a point” and “teach them a lesson.” The Court found these to be impermissible motives for an arrest, and thus found that the arrest was not justified at its inception. The Court also found that the arrests, handcuffing, and transmittal to the police station of middle school girls were a disproportionate response to the school’s need to simply dissipate the ongoing feud between the seventh-grade girls, and so failing T.L.O.’s second prong. The Court thus concluded Deputy Ortiz conduct was unreasonable and in violation of the Fourth Amendment.

Turning to the second qualified immunity question, the Court found that at the time of the students’ arrest, it was clearly established that “a police seizure at the behest of school officials must, at a minimum, be ‘reasonably related to its purpose, and must not be “excessively intrusive in light of the age and sex of the student and the nature of the infraction.”‘“ Doe ex rel. Doe, 334 F.3d at 909 (quoting T.L.O., 469 U.S. at 342). The Court concluded that no reasonable officer could have reasonably believed that the law authorized the arrest of a group of middle schoolers in order to teach them a lesson. The Ninth Circuit concluded the arrests were unreasonable and the District Court properly denied qualified immunity.

The Court of Appeals ended by addressing the defendants’ state law claim that Deputy Ortiz had probable cause to arrest the students for violating California Penal Code section 415(1), which criminalizes “unlawfully fight[ing] in a public place or challeng[ing] another person in a public place to fight.” The Court explained that a more specific provision Section 415.5 governed here, which expressly exempted registered students from its scope. Moreover, there was no probable cause to arrest because Deputy Ortiz had no information that any one girl was individually responsible as the instigators or the aggressors in the feud instead of as the victims. The Court thus found the students were entitled to summary judgment on their state false arrest claim.

Accordingly, the Ninth Circuit Court of Appeals affirmed.

  1. Trial court correctly denied motion to suppress evidence consensually obtained after traffic stop, finding questioning after stop did not amount to resumption of custody or seizure.

People v. Arebalos-Cabrera, 27 Cal. App. 5th 179 (4th Dist. 2018)

Facts: In August 2012, California Highway Patrol (“CHP”) Officer Roberto Adelmann pulled over a tractor-trailer driven by the defendant, Jorge Arebalos-Cabrera, for speeding and weaving across the white lane lines. Officer Adelmann was part of a special enforcement unit focused on drug interdiction. The officer questioned Arebalos-Cabrera. Officer Adelmann found Arebalos-Cabrera’s logbook entries unusually sparse and that he seemed nervous. The officer performed a field sobriety test, which Arebalos-Cabrera passed. Then Officer Adelmann handed back the defendant’s documents and told him he was free to leave. Arebalos-Cabrera started walking back to his vehicle. Adelmann then asked for and received Arebalos-Cabrera’s oral and written consent to search. About 15 to 20 minutes had elapsed since the officer had stopped the defendant. Adelmann examined the tractor-trailer with his police dog and found over 10 kilograms of heroin and over four kilograms of methamphetamine in wrapped packages. Officer Adelmann arrested Arebalos-Cabrera.

Arebalos-Cabrera moved to suppress the narcotics evidence, arguing in part that his consent was involuntary. He said that Officer Adelmann and the police dog had already been in the tractor before Arebalos-Cabrera was asked for his consent. The trial court denied the suppression motion, finding that Arebalos-Cabrera’s story “d[id]n’t make any sense” in light of the written consent form he signed. The trial court found that Arebalos gave consent and the search was proper, and sentenced him to 17 years four months in prison. Arebalos-Cabrera appealed.

Held: The California Fourth District Court of Appeal held that the trial court did not err in denying the motion to suppress because the defendant’s detention had ended by the time he gave his consent to search. The Court explained that the law was settled that “in Fourth Amendment terms a traffic stop entails a seizure of the driver ‘even though the purpose of the stop is limited and the resulting detention quite brief.’” (Brendlin v. California (2007) 551 U.S. 249, 255). However, the issue here was “whether that detention had ended by the time Arebalos gave his consent to search the tractor-trailer.”

The Court observed that “[w]hen the stop is over and its purpose served … , mere questioning by officers, without some indicated restraint, does not amount [] to custody for [] a seizure under the Fourth Amendment.” (United States v. Sullivan (4th Cir. 1998) 138 F.3d 126, 131.) The Court noted that “[i]n general, a driver’s detention at a traffic stop ends when he is told that he is free to leave. (See Arizona v. Johnson (2009) 555 U.S. 323.) and that “a police officer’s admonition that the driver is ‘free to go’ is an important factor in the Fourth Amendment analysis,” though “not determinative if other factors show that a reasonable person would in fact feel free to leave or otherwise terminate the encounter.”

The Fourth District explained that although Arebalos-Cabrera was detained when a highway patrol officer initiated the traffic stop of his tractor-trailer and he pulled to the side of a freeway, that detention had ended by the time he gave his consent to search the tractor-trailer, given that Officer Adelmann had already returned Arebalos-Cabrera’s documents, told him he was free to leave, and allowed him to walk partway back to his vehicle when Officer Adelmann asked for consent. The Court found that a reasonable person in Arebalos-Cabrera’s position would believe he was free to go when the officer asked for consent. Arebalos was no longer detained at that time. Moreover, Adelmann confirmed Arebalos-Cabrera’s consent in writing. The Court thus found that this was a consensual encounter, not a Fourth Amendment seizure.

The Court concluded that Arebalos-Cabrera’s consent to the tractor-trailer search was valid, and that the trial court did not err in denying the motion to suppress. Finding Arebalos-Cabrera’s other showings similarly lacking, the Fourth District accordingly affirmed the trial court’s judgment.

  1. The Eighth Amendment’s prohibition on cruel and unusual punishment bars city from prosecuting individuals criminally for sleeping outside on public property when no shelter available.

Martin v. City of Boise, 2018 U.S. App. LEXIS 25032 (9th Cir. Sept. 4, 2018)

Facts: The City of Boise (“City”) had two ordinances at issue. Boise City Code section 9-10-02 (the “Camping Ordinance”), declared that use of “any of the streets, sidewalks, parks, or public places as a camping place at any time” was a misdemeanor. This ordinance defined “camping” as “the use of public property as a temporary or permanent place of dwelling, lodging, or residence.” Boise City Code section 6-01-05 (the “Disorderly Conduct Ordinance”) banned “[o]ccupying, lodging, or sleeping in any building, structure, or public place, whether public or private . . . without the permission of the owner or person entitled to possession or in control thereof.”

Boise has a significant and increasing homeless population. According to the Point-in-Time Count (“PIT Count”) conducted by the Idaho Housing and Finance Association, there were 753 homeless individuals in Ada County — the county of which Boise is the seat — in January 2014, 46 of whom were “unsheltered,” or living in places unsuited to human habitation such as parks or sidewalks. In 2016, the last year for which data is available, there were 867 homeless individuals counted in Ada County, 125 of whom were unsheltered.

There were three homeless shelters in the City of Boise (“City”) for the City’s large and growing homeless population. The plaintiffs were six current or former residents of the City who are or were recently homeless. Each plaintiff alleged that, between 2007 and 2009, he or she was cited by Boise police for violating at least one of the two city ordinances. The plaintiffs filed action in federal court in the District of Idaho in October 2009. The plaintiffs alleged that their citations under the ordinances violated the Eighth Amendment’s Cruel and Unusual Punishments Clause and accordingly sought damages pursuant to 42 U.S.C. section 1983. Two of the plaintiffs also sought prospective declaratory and injunctive relief to prevent future enforcement of the ordinances because they expected to be cited under the ordinances again in the future.

After the lawsuit was initiated, the City police implemented the Special Order through a two-step procedure known as the “Shelter Protocol.” Under the Shelter Protocol, if any shelter in Boise reaches capacity on a given night, that shelter will so notify the police at roughly 11:00 pm. Each shelter has discretion to determine whether it is full, and Boise police themselves have no other mechanism or criteria for gauging whether a shelter is full. Since the Shelter Protocol was adopted, one of the three shelters has reported that it was full on almost 40% of nights. Although BRM agreed to the Shelter Protocol, its internal policy is never to turn any person away because of a lack of space, and neither BRM shelter has ever reported that it was full.

After a prior appeal and reversal, the District Court again granted summary judgment, holding that Heck v. Humphrey barred all of the plaintiffs’ claims for retrospective and prospective relief. Plaintiff again appealed.

Held: The Ninth Circuit Court of Appeals considered whether the Eighth Amendment’s prohibition on cruel and unusual punishment barred a city from criminally prosecuting individuals for sleeping outside on public property when they had no home or other shelter available.

Standing for Prospective Relief Claims

The Court first addressed whether the plaintiffs had standing to seek prospective relief. The Court found that, even assuming on the veracity of the shelters’ self-reporting, there remained a genuine issue of material fact as to whether homeless individuals in Boise faced a credible risk of being issued a citation on nights when shelters were full or when shelters denied entry for reasons other than shelter capacity – effectively a situation where no shelter was available for those homeless individuals. The Court thus concluded that plaintiffs had standing to pursue prospective relief.

Heck v. Humphrey

The Court next addressed the applicability of Heck “and its progeny” to the case. The Court explained that Heck held that a plaintiff in a Section 1983 action must demonstrate “a favorable termination of the criminal proceedings before seeking tort relief.” Thus, Heck bars a Section 1983 claim if it is inconsistent with a prior criminal conviction or sentence arising out of the same facts, unless the conviction or sentence has been subsequently resolved in the plaintiff’s favor.

Regarding retrospective relief claims here, the Ninth Circuit observed that Heck bars a Section 1983 action that would imply the invalidity of a prior conviction if the plaintiff could have sought invalidation of the underlying conviction via direct appeal or state post-conviction relief, but did not do so. The Ninth Circuit concluded that because none of the plaintiffs challenged their convictions on direct appeal (having expressly waived the right to do so as condition of their guilty pleas), most of their retrospective claims for injunctive relief were barred by Heck.

The Ninth Circuit also concluded that the District Court erred in finding the plaintiffs’ claims for prospective relief were barred by Heck. The Court understood Wolff v. McDonnell, Wilkinson v. Dotson, and Edwards v. Balisok to have considered Heck to be focused on retrospective existing relief claims, not prospective injunctive claims for relief. The Court thus concluded that the Heck doctrine “serves to ensure the finality and validity of previous convictions, not to insulate future prosecutions from challenge.”

Summarizing the Ninth Circuit’s conclusions regarding Heck’s application to the claims here, the Court held that all but two of the plaintiffs’ claims for retrospective relief were barred by Heck, but none of the claims for prospective injunctive relief were barred.

Eighth Amendment

The Eighth Amendment states: “Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.” U.S. Const., amend. VIII. One of the ways the Cruel and Unusual Punishments Clause limits the criminal process is by placing substantive limits on what the government may criminalize, though this limitation is to be “one to be applied sparingly.”

In the seminal Eighth Amendment case of Robinson v. California, the United States Supreme Court held that the Cruel and Unusual Punishments Clause invalidated a California law that made the “status” of narcotic addiction a criminal offense. The law, said the Supreme Court, punished the disease of narcotics addiction itself, and a law criminalizing a disease was an infliction of cruel and unusual punishment.

Powell v. Texas interpreted Robinson as precluding only the criminalization of “status,” not of “involuntary” conduct. But four dissenting Justices and concurring Justice White disagreed with the majority’s view that Robinson left open the “question of whether certain conduct cannot constitutionally be punished because it is, in some sense, ‘involuntary.’” Justice White noted that many chronic alcoholics were also homeless, for whom public drunkenness might be unavoidable as a practical matter. These people had “no place else to go and no place else to be” when they were engaged in the conduct of drinking, said Justice White. The four dissenting Justices similarly found that under Robinson, “‘criminal penalties may not be inflicted upon a person for being in a condition he is powerless to change,” and that the defendant, “once intoxicated, . . . could not prevent himself from appearing in public places.’”

Thus, the Ninth Circuit in describing Powell explained, five Justices “gleaned from Robinson the principle ‘that the Eighth Amendment prohibits the state from punishing an involuntary act or condition if it is the unavoidable consequence of one’s status or being.’” The Ninth Circuit said that this principle compelled the conclusion that “the Eighth Amendment prohibits the imposition of criminal penalties for sitting, sleeping, or lying outside on public property for homeless individuals who cannot obtain shelter.”

Reinforcing the Ninth Circuit’s view was its non-binding decision in Jones v. City of Los Angeles, which said, “‘[w]hether sitting, lying, and sleeping are defined as acts or conditions, they are universal and unavoidable consequences of being human.’ Jones, 444 F.3d at 1136. Moreover, any ‘conduct at issue here is involuntary and inseparable from status — they are one and the same, given that human beings are biologically compelled to rest, whether by sitting, lying, or sleeping.’ Id. As a result, just as the state may not criminalize the state of being ‘homeless in public places,’ the state may not ‘criminalize conduct that is an unavoidable consequence of being homeless — namely sitting, lying, or sleeping on the streets.’ Id. at 1137.”

The Ninth Circuit declared its holding to be narrow, saying that it did not require cities to provide enough shelter for the homeless or allow anyone to sit, lie, or sleep anywhere at any time in any place. Quoting Jones, the Court said it held only that “‘so long as there is a greater number of homeless individuals in [a jurisdiction] than the number of available beds [in shelters]’ the jurisdiction cannot prosecute homeless individuals for ‘involuntarily sitting, lying, and sleeping in public.’[Citation] That is, as long as there is no option of sleeping indoors, the government cannot criminalize indigent, homeless people for sleeping outdoors, on public property, on the false premise they had a choice in the matter.”

The Court acknowledged in a footnote:

“Naturally, our holding does not cover individuals who do have access to adequate temporary shelter, whether because they have the means to pay for it or because it is realistically available to them for free, but who choose not to use it. Nor do we suggest that a jurisdiction with insufficient shelter can never criminalize the act of sleeping outside. Even where shelter is unavailable, an ordinance prohibiting sitting, lying, or sleeping outside at particular times or in particular locations might well be constitutionally permissible. [Citation]. So, too, might an ordinance barring the obstruction of public rights of way or the erection of certain structures. Whether some other ordinance is consistent with the Eighth Amendment will depend, as here, on whether it punishes a person for lacking the means to live out the ‘universal and unavoidable consequences of being human’ in the way the ordinance prescribes. [Citation].”

Here, the Ninth Circuit said the two City of Boise ordinances criminalized the act of sleeping outside on public property in violation of the Eighth Amendment when no shelter was available. Accordingly, the Ninth Circuit Court of Appeals reversed and remanded regarding plaintiffs’ claims for declaratory and injunctive prospective relief, and for the two retrospective claims pertaining to citations that were dismissed without conviction or sentence. The Court affirmed the plaintiffs’ other retrospective relief claims.

For a more detailed discussion of this case, please see Client Alert Vol. 33, No. 29, available at www.jones-mayer.com.

  1. Detective’s statements suggesting petitioner might not be booked if he talked after petitioner invoked his right to counsel constituted interrogation.

Martinez v. Cate, 2018 U.S. App. LEXIS 25703 (9th Cir. Sep. 11, 2018)

Facts: In December 2005, police arrested Daniel Martinez for involvement in a neighborhood confrontation that left one person dead. Detective Navarro interrogated Martinez in an interview room about the incident. Navarro read Martinez his rights under Miranda v. Arizona 384 U.S. 436 (1966). Immediately thereafter, Martinez asked, “I can have an attorney?” Detective Navarro clarified whether Martinez wanted an attorney and Martinez affirmatively stated, “I would like to have an attorney.” Navarro, without breaking, asked some questions about the attorney, and then asked whether Martinez would talk “but with an attorney present?” Martinez replied “yeah [] cuz [sic] I don’t know much about the law.” Navarro asked about Martinez’s father next which Martinez answered. After that, the following exchange (with transcript misspellings included) occurred:

MARTINEZ: Alright. I’m willing to talk to you guys uh but just I would like to have an attorney present. That’s it.

NAVARRO : Yeah, I don’t know if we could get a hold of him right now.


NAVARRO: All I wanted was your side of the story. That’s it. OK. So, I’m pretty much done with you then. Um, I guess I don’t know another option but to go ahead and book you. OK. Because

MARTINEZ: under? What am I being booked

NAVARRO: Youre going to be booked for murder because I only got one side of the story. OK.

MARTINEZ: But how how’s he going to go about that. If we talk, once you get a hold of my uh attorney.

NAVARRO: That’s the thing, I don’t know when were going to get a hold of him. Maybe I don’t know when he’s going I don’t know when your going to call him.

MARTINEZ: I have to get a hold of him.


MARTINEZ: I have to get a hold of him?


MARTINEZ: You guys don’t (unintelligible)

NAVARRO: No. No, your going to have to call him and it’s going to have to be from jail.

Thereafter, the interrogation proceeded without an attorney present. At one point, in response to Navarro saying he wanted Martinez’s side of the story, Martinez said he did not want to go to jail and that “he would tell the truth if that ‘help[ed] [him] walk away.’” Martinez eventually made certain incriminating statements.

At trial, Martinez objected to admission of the interrogation statements on Fifth Amendment grounds, rather than having moved to suppress before the trial. The trial judge concluded that although Martinez invoked the right to counsel, Navarro ceased the interrogation when he first questioned Martinez about the attorney and his father. The judge viewed these initial questions as part of the booking phase, which meant Navarro had ceased the interrogation before that point. Then, in the trial judge’s view, Martinez reinitiated conversation and voluntarily waived his previously-asserted right to counsel. Consequently, the judge concluded that the questions after Martinez’s invocation were valid, and that Martinez’s change of heart was voluntary. The trial judge refused to suppress the statements. The jury convicted Martinez of second-degree murder. Martinez was sentenced to 40 years to life imprisonment.

The California Court of Appeal found that “‘once Navarro clarified that Martinez was willing to talk to him, but wanted an attorney present, interrogation ceased. The questions Navarro asked concerning Martinez’s father did not constitute interrogation.’ Second, the court reasoned that ‘[i]t was Martinez who then turned the subject back to having an attorney present;’[] Third, the court interpreted Martinez’s ‘question about what he was being booked for’ as a reinitiation of the conversation with Detective Navarro.” The Court of Appeal affirmed the trial court’s ruling that Martinez’s statement was admissible. The California Supreme Court summarily denied Martinez’s petition for review, and Martinez’s subsequent state habeas petitions were rejected.

After Martinez had exhausted state remedies, he filed a federal habeas petition. A magistrate judge recommended that the District Court deny Martinez’s Miranda claim that he continued to be interrogated after he invoked his rights to an attorney. However, the judge thought the conversation between Navarro and Martinez could have “multiple” interpretations, and recommended the District Court grant a Certificate of Appealability. The District Court adopted the recommendations of a magistrate judge, and denied the petition while granting the Certificate of Appealability.

Held: The Ninth Circuit Court of Appeals held that the interrogating officer did not honor the suspect’s right to counsel by not stopping his questioning and that the California Court of Appeal unreasonably applied clearly established law in concluding otherwise.

The Court explained that Miranda and its progeny provided the clearly established law that served as the basis for Martinez’s petition. Miranda established, among other things, the “right to have counsel present” during a custodial interrogation. 384 U.S. 436, 469 (1966). “[T]he Miranda safeguards come into play whenever a person in custody is subjected to either express questioning or its functional equivalent.” Rhode Island v. Innis, 446 U.S. 291, 300 (1980). Edwards v. Arizona established the rule that once an accused invokes the right to counsel, he “‘is not subject to further interrogation [] unless the accused himself initiates further communication, exchanges, or conversations with the police.’” 451 U.S. 477, 484-85 (1981). Edwards also held that “a valid waiver of that right cannot be established by showing only that [a suspect] responded to further police-initiated custodial interrogation.”

The Court determined that, while Detective Navarro’s questions about Martinez’s father and earlier questions about an attorney were “attendant to booking,” Detective Navarro’s statements after Martinez invoked his right to counsel constituted Innis’ “functional equivalent” of express questioning. The functional equivalent of interrogation is defined as “any words or actions on the part of the police . . . that the police should know are reasonably likely to elicit an incriminating response from the suspect.” The Court added that this definition focused mainly on the suspect’s perceptions, not the interrogator’s intent.

The Court considered the following statements: (1) “all I wanted was your side of the story. That’s it. OK. So, I’m pretty much done with you then. Um, I guess I don’t know another option but to go ahead and book you. OK. Because,” and (2) “your [sic] going to be booked for murder because I only got one side of the story. OK.” The Court found that the only reasonable interpretation was that these statements, made after Martinez invoked his right to an attorney, constituted interrogation. The Court found that Detective Navarro badgered Martinez into waiving his right to counsel by suggesting to Martinez that if he waived his right to an attorney and told his “side of the story,” then he would not be booked. The Court therefore found that, per the functional equivalent definition, “[a]ny reasonable officer would know that these particular statements about booking would likely elicit a response.” The Court concluded Navarro’s statements at issue here constituted an interrogation after Martinez had invoked his right to counsel, violating Edwards. This also had the effect of rendering any waiver of his right to counsel invalid.

The Court further found that Martinez’s incriminating statements were inadmissible because he did not initiate further conversation with the police, and because no reasonable court could conclude his subsequent waiver was valid. According to the Court, “Navarro never honored Martinez’s invocation of his right to counsel and kept talking until he got the answer he wanted.” The Court accordingly reversed the District Court’s denial of Martinez’s habeas petition challenging his conviction for second-degree murder, and remanded for further proceedings.

  1. J. Pat-down search of passenger in vehicle may be supported by reasonable suspicion whether or not vehicle search itself was supported by probable cause.

People v. Fews, 27 Cal. App. 5th 553 (1st Dist. 2018)

Facts: In February 2017, San Francisco Police Officers Dominic Vannucchi and John Vidulich saw a white SUV in front of their marked patrol car speed up and then suddenly pull over in an area known for narcotics transactions and related violence. The officers thought the sudden stop was an attempt to avoid a traffic stop. A check showed the vehicle’s license registration had expired. The officers made a traffic stop. The driver exited the SUV quickly and refused Vidulich’s multiple requests to get back into the vehicle. As Vidulich approached the driver, the driver stood facing the driver’s side open door with his hands reaching back into the vehicle, while passenger defendant Calvin Bernard Fews made ongoing furtive movements in the front passenger seat around the passenger compartment particularly low on his body. Officer Vannucchi was meanwhile at the rear of the SUV conversing with dispatch and observing the driver, Vidulich, and Fews. Vidulich smelled marijuana on the driver himself and inside the SUV, and believed the cigar Mims was holding had marijuana based on how it was rolled up. After the driver admitted to having marijuana in the cigar, he reached back in the SUV ignoring Vidulich telling him to cease. Fews continued his furtive motions.

Based on his training and expertise, the high-crime area they were in, and the driver’s noncompliance, Vidulich believed that Fews could have been reaching for a possible weapon. Officer Vidulich asked Fews to step out of the vehicle. Fews complied. Officer Vidulich performed a pat-down search of the driver. The officer intended to search the vehicle to ensure compliance with marijuana state law regarding possession and use. Fews was wearing baggy clothing which, the officers believed, could have concealed a weapon. Officer Vannucchi decided to search Fews based on the high crime area, Fews’ fidgeting in the car, his clothing, and because when one officer would turn his back to search the car, the other would be outnumbered in keeping watch on both Fews and the driver. During the pat-down search of Fews, Officer Vannucchi found a loaded weapon in Fews’ pocket.

A felony information charged Fews with being a felon in possession of a firearm (Penal Code, section 29800, subd. (a)(1)), among other charges. A magistrate denied Fews’ motion to suppress the firearm evidence. Fews pleaded guilty to the firearm possession charge. He appealed the denial of his motion to suppress.

Held: On appeal, Fews contended the pat-down search was not supported by reasonable suspicion that he was armed and dangerous, as required under the Fourth Amendment. He argued that there was no reasonable suspicion for his pat-down search, because the officers’ justification  was officer safety concerns during the intended SUV search. Fews said that the officer smelled marijuana and had knowledge of the small amount of marijuana in the cigar did not support probable cause; Proposition 64’s passage established that such an amount was not “contraband.” Since the SUV search was not supported by probable cause, Fews maintained, it was invalid, and consequently invalidated the pat-down search.

The California First District Court of Appeal explained that the Fourth Amendment requires exclusion of evidence obtained from unreasonable searches and seizures. Under Terry v. Ohio (1968) 392 U.S. 1, “‘[a] police officer may temporarily detain and patsearch an individual if he believes that criminal activity is afoot, that the individual is connected with it, and that the person is presently armed. The issue is whether specific and articulable facts that give rise to a reasonable suspicion of criminal activity. Reasonable suspicion is a less demanding standard than probable cause and is determined in light of the totality of the circumstances.” The Court explained that a detention is reasonable under the Fourth Amendment when the detaining officer can point to specific articulable facts that, considered in light of the totality of the circumstances, provide some objective manifestation that the person detained may be involved in criminal activity. (People v. Lindsey (2007) 148 Cal.App.4th 1390, 1395–1396.)

The Court explained that the pat-down search was valid if the officers reasonably suspected that Fews was connected to criminal activity and was armed; Fews was incorrect in his assumption otherwise. Here, the officers smelled observed marijuana in and around the SUV, which provided a “rational suspicion that [the driver and Fews] may have been in the possession and transportation of drugs.” (People v. Collier (2008) 166 Cal.App.4th 1374, 1377.) Fews’ furtive movements, his clothing, the driver’s noncompliance, the known high crime area, and the Officers’ expertise and training, taken together with the officer detection of marijuana supported reasonable suspicion under the totality of the circumstances.

Fews believed that after the passage of Proposition 64, law enforcement officers could no longer assume that a person possessing a small amount of marijuana is armed and engaged in criminal activity. The Court disagreed, noting marijuana possession and use was still “highly circumscribed” by law even after the passage of Proposition 64; possessing or transporting an amount in excess of permitted limits of marijuana, along with several other factors was still illegal. The odor and presence of even a small amount of marijuana together with the aforementioned factors reasonably supported the pat-down search.

The Court also concluded that, even if it accepted Fews’ linkage of the pat-down search and the vehicle search justifications, there also was sufficient probable cause for the vehicle search. The Court explained that “[p]robable cause posits ‘a fair probability that contraband or evidence of a crime will be found in a particular place.’” (Illinois v. Gates (1983) 462 U.S. 213, 238.) The Court explained that People v. Strasburg (2007) 148 Cal.App.4th 1052 and People v. Waxler (2014) 224 Cal.App.4th 712 permit law enforcement officers to conduct a reasonable search to determine whether the subject of the investigation is adhering to the various statutory limitations on possession and use, and whether the vehicle contains contraband or evidence of a crime.

Here, the First District found that the marijuana odor from the SUV and the driver, plus the driver’s admission of marijuana in his cigar provided “a fair probability that a search of the SUV might yield additional contraband or evidence.” And the evidence of the smell of “recently burned” marijuana and the half-burnt cigar containing marijuana supported a reasonable inference that the driver was illegally driving under the influence of marijuana, or, at the very least, driving while in possession of an open container of marijuana. The Court thus concluded that there was probable cause for the warrantless search of the vehicle, which (in Fews’ linkage theory) provided addition validity of the pat-down search on officer safety grounds because the vehicle search would have rendered one of the officers outnumbered by the driver and Fews – and Fews was wearing baggy clothing capable of concealing a weapon. The pat-down search was thus justified under Fews’ flawed argument as well. Accordingly, the First District affirmed the denial of Fews’ motion to suppress.


  1. Retired County employees allege sufficient evidence to suggest implied contract struck with County regarding receiving certain health benefit in perpetuity, not for limited term; County can treat retirees as a group differently, with regard to health benefits, than employees as a group, because it did not constitute age discrimination against individuals, as prohibited by FEHA and ADEA.

Harris v. County of Orange, 2018 U.S. App. LEXIS 25159 (9th Cir. Sep. 5, 2018)

Facts: The County of Orange (“County”) restructured its health benefits program in 2006 when the County adopted two changes to benefits for its retired employees. The first eliminated the “Retiree Premium Subsidy,” which involved a method of calculating medical insurance premiums based on combining retired and active employees into a single unified pool. The County paid a large portion of the premiums for active employees, but retirees paid most of their own premiums. Because the average retired employee was older and more expensive to insure for medical coverage than the average active employee, retirees, if pooled separately, would have paid higher premiums than they did in a single unified pool. Thus, the County effectively established a health insurance subsidy for retirees, lowering their premiums while raising active employee premiums (mostly paid by the County) above the actual cost of covering active employees as a separate group.

The second change the County adopted was to reduce the “Grant Benefit,” which provided retired employees with a monthly grant to defray the cost of health care premiums. The Grant Benefit was established in 1993 after years of negotiations between the County and its labor unions. In return for the Grant Benefit, the unions and the Orange County Employee Retirement System (“OCERS”) agreed to allow the County to access $150 million in surplus investment earnings controlled by OCERS. The County sought to reduce its workforce, and intended the Grant Benefit to entice employees to retire early.

The terms of the Grant Benefit were established in yearly Memoranda of Understanding (“MOUs”) between the County and its union-represented employees. The Benefit was funded by a mandatory contribution from active employees of 1% of their gross monthly wages, as well as investment earnings from a portion of the OCERS surplus. Under the agreements governing the 1993 Grant Benefit, the County was obligated to “step in” if the 1% contribution and investment earnings were insufficient to cover program expenses. In addition, any employee who left County employment before becoming eligible for a Grant Benefit would receive a lump sum cash rebate of his 1% salary contribution.

Beginning in 2004, the County negotiated with its labor unions to restructure the underfunded retiree medical program. In 2006, the Board of Supervisors approved an agreement with the labor union that (1) separated the formerly unified group of retired and active employees into separate pools for the purpose of setting premiums, effectively eliminating the Retiree Premium Subsidy, and (2) reduced the Grant Benefit to retirees.

Two lines of litigation developed, each lasting a number of years. In November 2007, the Retired Employees Association of Orange County, Inc. (“REAOC”), an organization representing County retirees and their spouses, filed a suit challenging the County’s elimination of the Retiree Premium Subsidy. The District Court granted summary judgment to the County. On appeal, the Ninth Circuit certified a question to the California Supreme Court. In 2011, the California Supreme Court answered this question by holding that under California law, a vested right to health benefits for retired county employees can be implied under certain circumstances from a county ordinance or resolution. Retired Emps. Ass’n of Orange Cty., Inc. v. Cty. of Orange, 52 Cal. 4th 1171, 1194, 134 Cal. Rptr. 3d 779, 266 P.3d 287 (2011). After receiving the Supreme Court’s answer, the Ninth Circuit then remanded to the District Court, which again granted summary judgment to the County after finding REAOC failed to show the existence of an implied contract right (for retirees) to the pooled premium. On appeal again, the Ninth Circuit affirmed in 2014.

While the REAOC case was in process, the present case proceeded here as a second line of litigation. Here, Harris and other Plaintiffs, on behalf of thousands of retired Orange County employees (“Retirees”), filed a class action, which was assigned to the same district judge presiding over the REAOC litigation. Retirees argued the County breached its contractual obligations to Retirees by eliminating the Retiree Premium Subsidy and reducing the Grant Benefit, and that the elimination of the Retiree Premium Subsidy also constituted age discrimination in violation of California’s Fair Employment and Housing Act (“FEHA”).

After a lengthy procedural process, Retirees filed a Third-Amended Complaint focusing on the Supreme Court’s REAOC holding that a vested right to County retiree health benefits can be implied from a county ordinance or resolution. Also, the Ninth Circuit’s later decision in Sonoma Cty. Ass’n of Retired Emps. v. Sonoma Cty., 708 F.3d 1109 (9th Cir. 2013) implemented the REAOC holding. In Sonoma, retirees alleged that Sonoma County had breached its obligation to provide certain health care benefits in perpetuity. In light of the REAOC holding that a public entity in California can be bound by an implied term in a written contract under specified circumstances, the Sonoma Court reversed the lower court’s dismissal of the Sonoma complaint so that the retirees could try “‘to plausibly allege that the County used resolutions or ordinances to ratify or approve MOUs that created contracts for healthcare benefits and included implied terms vesting those benefits for perpetuity.’”

Here, Harris Retirees had attached to their complaint the 1993 MOU and the Board of Supervisors resolution formally adopting it, as a representative example of the agreements reached between the County of Orange and its main labor union each year between 1993 and 2007. The MOU provided that “[e]ffective August 1, 1993[,] the County shall administer a Retiree Medical Insurance Grant plan for employees who have retired from County service and who meet the eligibility requirements set forth in” other provisions of the MOU. It further provides that “[u]pon . . . County retirement, an eligible retiree . . . shall receive a” Grant Benefit. Retirees said the other years’ MOUs were effectively the same.

The District Court entered judgment in favor of the County dismissing the contract claims and the FEHA claim. On appeal, Retirees challenged the dismissal of three categories of claims: (1) contract claims related to the reduction of the Grant Benefit; (2) contract claims related to the elimination of the Retiree Premium Subsidy; and (3) the FEHA claim related to the elimination of the Retiree Premium Subsidy.

The Ninth Circuit Court of Appeals found that the second claim was essentially the same claim that was adjudicated by the REAOC District Court when they held that REAOC had failed to show the existence of an implied contract right (for retirees) to the pooled premium which resulted in the Retiree Premium Subsidy. The Ninth Circuit thus affirmed the District Court’s dismissal of the contract claims related to the Retiree Premium Subsidy’s elimination. The Ninth Circuit then addressed the remaining two claims: the contract claim pertaining to the Grant Benefit reduction, and the FEHA claim regarding the subsidy elimination.

Held: The Ninth Circuit held that the retirees’ presented sufficient allegations regarding the continuation of the Grant Benefit during the employees’ lifetime to survive a motion to dismiss. The Court, however, affirmed the District Court’s dismissal of the FEHA claim pertaining to the Retiree Premium Subsidy.

  1. Contract claims related to the reduction of the Grant Benefit

Addressing the Grant Benefit reduction claim, the Court observed that Sonoma presented the test that applied for a complaint to survive a motion to dismiss when, as here, the Memorandum of Understanding was explicit as to the substance of the benefit but not as to its term: “‘[T]o survive a motion to dismiss, the . . . complaint must plausibly allege that the County: (1) entered into a contract that included implied terms providing healthcare benefits to retirees that vested for perpetuity; and (2) created that contract by ordinance or resolution.’” Sonoma made clear that “MOUs are contracts.” and that they “promised healthcare benefits.” 708 F.3d at 1115 (9th Cir. 2013). Sonoma also clarified that, once a plaintiff identifies an express contract covering the substance of a benefit, it may rely on extrinsic evidence to prove the existence of an implied term requiring the continuation of that benefit in perpetuity.

Here, the Court noted that the retirees alleged the existence of annual MOU between the union and the County, establishing a right to the Grant Benefit; and the retirees’ specific allegations plausibly supported the conclusion that the County impliedly promised a lifetime benefit, which could not be eliminated or reduced. Thus, the complaint alleged sufficient facts to suggest the County entered into a contract that included implied terms providing healthcare benefits to retired employees into perpetuity.

Lastly, the Court observed that Retirees attached to their complaint the Board resolution expressly adopting the terms of the “exemplar” 1993 MOU. The County did not dispute that each annual MOU was similarly adopted by resolution of the Board. Thus, the County “created that contract by ordinance or resolution,” as required by the above-described Sonoma test. The Ninth Circuit thus reversed the District Court’s order insofar as it dismissed the retirees’ contract claims regarding the Grant Benefit.

  1. FEHA claim regarding the elimination of the Retiree Premium Subsidy

The retirees’ FEHA age discrimination claim challenged the elimination of the Retiree Premium Subsidy. The Court held that California law did not fault the County for offering different benefits to retirees and to active employees at the outset, absent a FEHA violation. The Court also noted that California FEHA law followed federal ADEA (Age Discrimination in Employment Act) law and the federal Civil Rights Act, and that retirees, though no longer active employees, were nonetheless entitled to ADEA/FEHA protections in their retiree health benefits. In the seminal ADEA case Hazen Paper Company v. Biggins, 507 U.S. 604, 113 S. Ct. 1701, 123 L. Ed. 2D 338 (1993), the United States Supreme Court stated, “there is no disparate treatment under the ADEA when the factor motivating the employer is some feature other than the employee’s age.” However, Hazen did not concern retirees as a group compared to active employees as a group.

Here, the Court noted that a substantial number of active employees were actually older than retirees. Moreover, the County did not, among retirees, charge more to older than younger retirees for health benefits. The Court concluded that the County, under ADEA/FEHA age discrimination provisions, could treat retirees as a group differently, with regard to medical benefits, than employees as a group, taking into account that the cost of providing medical benefits to the retiree group was higher because the retirees were on average older. The Court explained that “‘the overall distinction between the medical plans covering active employees and retirees is, under Hazen, not itself discrimination based on age, and calculating the rate charged every retiree, regardless of age, by taking average age into account is not discrimination against any individual retiree based on a protected category.’” Accordingly, retirees’ claim of unlawful age discrimination under FEHA failed as a matter of law, and the Court of Appeals affirmed the District Court’s dismissal of the FEHA claim.

  1. A use of force policy is as closely akin to a managerial decision as any decision can be in running a police department.

S.F. Police Officers’ Ass’n v. S.F. Police Com., 2018 Cal. App. LEXIS 860 (1st Dist. Sep. 26, 2018)

Facts: The City and County of San Francisco (“the City”) is a charter city under article XI of the California Constitution. The City is the employer of police officers in the San Francisco Police Department. The San Francisco Police Officers’ Association (“Association”) is the acknowledged organization that represents the SFPD officers that the City employs. Under article IV, section 4.109 of the San Francisco Charter, the City empowers the San Francisco Police Commission (“Commission”) to prescribe and enforce SFPD rules and regulations that the Commission deems appropriate. The Memorandum of Understanding (“MOU”) between the Association and the City entitled the Association to be given notice and a chance to meet and confer regarding “any proposed change in general orders or other matters within the scope of representation … .” The MOU also described grievance procedures and the “arbitrability of disputes.”

In 2015, the Commission announced its intent to review SFPD’s use of force policy. In response to a February 2016 letter asking the City to meet-and-confer regarding the proposed changes, the City maintained that the formation of the policy was a “managerial right outside the scope of bargaining,” though the City did agree to meet once the new policy was approved. A draft use of force policy was prepared, which the Commission voted to adopt in June 2016, subject to meet-and-confer with the Association.

In its subsequent meetings with the Association, the City took the position that it was reserving “all rights related to its management rights and what matters, if any, fell within the scope of representation.” The City met with the Association nine times over the next five months, but disagreement persisted on a provision prohibiting police use of the carotid restraint and a provision strictly prohibiting officers from shooting at moving vehicles. Several proposals and counterproposals were exchanged to try to resolve the disagreements. Finally, the City declared an impasse, finding additional discussion of the disputed areas futile. The City eventually declared that the majority of the disputed issues, including the carotid restraint and moving vehicle provisions, “were outside the scope of representation and clearly management rights.” The City thus would not negotiate these issues. The Association filed a grievance alleging the City failed to negotiate in good faith in violation of the MOU and requesting arbitration. The City denied the amended grievance and rejected the Association’s arbitration demand.

The Association filed a petition to compel arbitration of its amended grievance against the City. The City demurred, contending the City had no duty to bargain regarding disputed matters outside the scope of representation. The trial court denied the petition to compel arbitration after finding that the use of force had been “clearly defined” by courts as an “exclusive management” area, well within the City’s constitutional and charter authority to exercise local police authority.

The Association filed a petition for writ of mandate with the California First District Court of Appeal, which the First District denied. The Association then appealed the trial court’s denial of its petition to compel arbitration.

Held: The First District Court of Appeal first noted that for a petition to compel arbitration, the party requesting arbitration bears the burden of proving the existence of an agreement to arbitrate a particular controversy. (Pinnacle Museum Tower Assn. v. Pinnacle Market Development (US), LLC (2012) 55 Cal.4th 223, 236.) “‘Doubts as to whether an arbitration clause applies to a particular dispute are to be resolved in favor of sending the parties to arbitration.’” (California Correctional Peace Officers Assn. v. State of California (2006) 142 Cal.App.4th 198, 205 [47 Cal. Rptr. 3d 717].) However, “‘“there is no policy compelling persons to accept arbitration of controversies which they have not agreed to arbitrate … .”‘” (Victoria v. Superior Court (1985) 40 Cal.3d 734, 744.)

The Court explained that the Meyers-Milias-Brown Act (“MMBA”; Government Code sections 3500 to 3510) applies to local government employees in California. Under MMBA’s Section 3505, “[t]he duty to meet and confer in good faith is limited to matters within the ‘scope of representation’ … .” (Claremont Police Officers Assn. v. City of Claremont (2006) 39 Cal.4th 623, 630.) Section 3504 defines “scope of representation” to include “wages, hours, and other terms and conditions of employment” but excluding “consideration of the merits, necessity, or organization of any service or activity provided by law or executive order.” The First District observed that “[a] fundamental managerial or policy decision … is outside the scope of representation ([Section 3504]), and is excepted from section 3505’s meet-and-confer requirement.” (Claremont, 39 Cal.4th at p. 628.).

The Court agreed with the decision in San Jose Peace Officer’s Assn. v. City of San Jose (1978) 78 Cal.App.3d 935, which held “that the use of force policy is as closely akin to a managerial decision as any decision can be in running a police department.” The Court there acknowledged that a use of force policy change had “some effect” on officer safety, but “any such danger obviously extends equally as much to the public at large as it does to the individual police officer.” Moreover, “the formulation of a policy governing use of deadly force by police officers is a heavy responsibility involving the delicate balancing of different interests: the protection of society from criminals, the protection of police officers’ safety, and the preservation of all human life if possible. This delicate judgment is best exercised by the appropriate legislative and executive officers. …’” (Long Beach Police Officers Assn. v. City of Long Beach (1976) 61 Cal.App.3d 364, 371.) The First District agreed with San Jose Peace Officer’s Assn. that “[t]he policy clearly constitutes a managerial decision which is not properly within the scope of union representation and collective bargaining.” The First District noted that the California Supreme Court had cited with approval the holdings in San Jose Peace Officer’s Assn. and Claremont.

Turning to the instant case, the First District observed that article I, Section 5 of the MOU agreement stated that if “the City acts on a matter it has reasonably determined to be mandated by or necessary to ensure compliance with … federal, state, or local laws, ordinances or regulations, that action shall not be grievable hereunder. In the event a grievance is filed relating to such actions, arbitrability shall be determined by a court of competent jurisdiction.” The First District concluded that the trial court correctly determined that the use of force policy was a “matter [the City had] reasonably determined to be mandated by or necessary to ensure compliance with … state … law[],” which was not subject to the MOU’s grievance procedure. The trial court also correctly found that the Association’s amended grievance was not arbitrable under the MOU. Moreover: “The power of a city to enact and enforce regulations relating to the use of firearms by police officers is in the exercise of the police power granted by article XI, section 7 of the California Constitution [citation],” which a “governmental agency may not suspend, bargain or contract away … .”

Supplementing its position, the Court agreed with the holding in Building Material & Construction Teamsters’ Union v. Farrell (1986) 41 Cal.3d 651, 657, 665) that “the burden of requiring an employer to confer about such fundamental decisions clearly outweighs the benefits to employer-employee relations that bargaining would provide.” (Building Material, at p. 664.) And the Court also explained that forcing the City to arbitrate issues surrounding the new use of force policy before it could be implemented would allow the Association to “hold the policy in abeyance indefinitely” by claiming the City acted in bad faith.

Accordingly, the First District Court of Appeal affirmed the trial court’s order denying the Association’s petition to compel arbitration.


Proposition 64 does not require a defendant’s DNA to be expunged from the state’s database where defendant has offense reduced to an infraction.

People v. Laird, 27 Cal. App. 5th 458 (4th Dist. 2018)

Facts: Gavin Scott Laird was arrested on felony marijuana charges in May 2014. He provided his DNA by mouth swab (buccal swab). He pleaded guilty to one felony count for violating Health and Safety Code section 11357, subdivision (a) for possessing not more than eight ounces of concentrated cannabis. As part of his plea, the state agreed to reduce the charge to a misdemeanor after 18 months of successful, informal probation. In October 2016, Laird filed a petition for reduction of his offense to a misdemeanor under Penal Code section 1170.18, subdivisions (f) and (g). The court granted the petition. In March 2017, Laird filed a petition asking the court to set aside the misdemeanor conviction and to designate an infraction under Proposition 64, which the court did. Laird then moved to have his DNA expunged from the state’s database, which the court denied. Laird appealed.

Held: The California Fourth District Court of Appeal considered the question: when an offender whose guilty plea to a felony marijuana conviction is later reduced to an “infraction for all purposes,” does the re-designation justify expungement of his previously collected DNA sample from the state’s database? Laird argued it did because Proposition 64 did not explicitly authorize the retention of an offender’s DNA in the DNA database. He also contended Proposition 69 justified expungement.

Proposition 64 was intended to decriminalize certain marijuana offenses by reducing sentences, dismissing marijuana-related offenses from criminal records, and prevent refiling of charges after prior marijuana-related convictions are reduced. The proposition provides that a conviction that is recalled and resentenced “shall be considered a misdemeanor or infraction for all purposes.” (Health & Saf. Code, section 11361.8, subd. (h).) The Court looked to precedent to determine the meaning of the phrase “for all purposes.”

Noting that the language of Proposition 47 (as implemented by Penal Code section 1170.18) was almost identical to that of Proposition 64 in this regard, the Court explained that “the later re-designation as an infraction does not change the character of the original charge for administrative actions occurring before the re-designation, and the original felony guilty plea is a proper basis for collecting a DNA sample.” (In re C.H. (2016) 2 Cal.App.5th 1139, 1147).

The Court explained that to conclude DNA retention was included within Proposition 64’s goal of reduced penalties would mean that DNA collection and retention were punishments. However, “DNA collection ‘is not punitive, does not involve concepts of retroactivity or ex post facto implications, but is confined to a simple administrative identifying procedure akin to fingerprinting or keeping one’s whereabouts known to law enforcement.’ […] Because DNA collection occurs at the time of the felony arrest [] and is administrative [], the re-designation to an infraction for all purposes under Proposition 64 does not relate back to the initial charge for purposes of DNA expungement.” Good v. Superior Court (2008) 158 Cal.App.4th 1494.

Laird contended that Proposition 69, the “DNA Fingerprint, Unsolved Crime and Innocence Protection Act,” authorized DNA expungement. The Court explained that Proposition 69 amended the DNA and Forensic Identification Database and Data Bank Act of 1998 (“DNA Database Act”), Pen. Code section 295 et seq., by expanding the pool of persons who must submit DNA samples. Section 296 requires qualifying persons to submit buccal swab DNA samples and Section 299 describes procedures for expunging the samples. The two sections require a DNA sample from an offender who is convicted of or pleads guilty to a felony, and expungement of the sample is not permitted if the offender is guilty of a past or present qualifying offense. Section 299(f) imposes these limitations on expungement “notwithstanding any other law.” The Fourth District found Laird was a ‘qualifying person’ under section 296 because he was arrested and charged with a felony offense and because he pleaded guilty to a felony offense. Laird argued that this status should be retroactively removed because he claimed he now had no past or present offense which qualified him for database inclusion. However, the Court explained that “while Laird’s felony conviction was re-designated an infraction for all purposes, the retroactive impact is limited to ameliorate the punitive effects of the conviction.” Because DNA collection and retention were not punitive, the re-designation had no effect on the DNA retention.

The Court accordingly affirmed the order denying Laird’s motion to expunge his DNA sample from the state database.


District Court order in immigration case grants city’s application for preliminary injunction where United States Attorney General seeks to impose immigration conditions on federal grants for city.

City of Los Angeles v. Jefferson B. Sessions, 293 F. Supp. 3d 1087 (C.D. Cal. 2018)

Facts: Codified at 34 U.S.C. sections 10151-10158, the Edward Byrne Memorial Justice Assistance Grant Program (“the Byrne JAG grant”) is a federal grant that provides additional funds for personnel, training, equipment, and other needs to state and local law enforcement. The Byrne JAG grant is a “formula grant,” which means the funds are awarded according to a formula provided by statute based on the state’s population and rate of violent crime. The City of Los Angeles (“City”) has received more than $1 million in funding each year since 1997 from the Byrne JAG grant.

In 2017, Defendant Attorney General Sessions announced that the Bureau of Justice Assistance (“BJA”) would impose immigration compliance requirements upon Byrne JAG recipients. These requirements would make certain jurisdictions ineligible for Byrne JAG grant funds if they did not change their policies and operations. The announcement declared that, “‘[f]rom now on, the Department will only provide Byrne JAG grants to cities and states that comply with federal law, allow federal immigration access to detention facilities [“Access Condition”], and provide 40 hours’ notice before they release an illegal alien wanted by federal authorities [“Notice Condition”].’”

Earlier in this case in April 2018, the Court had granted the City’s motion for partial summary judgment in challenging Defendants’ use of immigration-related conditions in assessing funding eligibility for another federal grant funding law-enforcement needs, called the COPS Hiring Program grant. Regarding the Byrne JAG grant here, the City of Los Angeles had not changed its policies or operations to comply with the Notice and Access Conditions, and so had not received Byrne JAG funds for fiscal year 2017. The City sought a preliminary injunction to enjoin the Access and Notice Conditions imposed by Defendants upon the Byrne JAG grant.

Held: The United States District Court for the Central District of California explained that “a preliminary injunction is ‘an extraordinary remedy that may only be awarded upon a clear showing that the plaintiff is entitled to such relief.’ Winter v. Natural Res. Def. Council, Inc., 555 U.S. 7, 22 (2008). A party is entitled to injunctive relief upon a showing that: (1) it is likely to succeed on the merits, (2) it is likely to suffer irreparable harm in the absence of preliminary relief, (3) the balance of equities tips in the moving party’s favor, and (4) an injunction is in the public interest. Id. at 20.”

Considering the injunction’s chances of success on the merits, the Court observed that an agency “‘has no power to act . . . unless and until Congress confers power upon it.’ Louisiana Pub. Serv. Comm’n v. F.C.C., 476 U.S. 355, 374 (1986).” While Congress can delegate authority and discretion to the Executive Branch by statute, “if an agency ‘act[s] improperly . . . what they do is ultra vires.’ City of Arlington, Tex. v. F.C.C., 569 U.S. 290, 291 (2013).” The Court then considered whether the Byrne JAG grant as specified in 34 U.S.C. sections 10151-10158 gave the Attorney General the authority to impose the Notice and Access Conditions. The Court noted that if the statutory language was clear, it must be regarded as conclusive.

The Court explained that the statutes granted the Attorney General power to carry out “very limited actions” – determining the form of the grant application (Section 10153(a)), data and record-keeping requirements (Section 10153(a)(4)), and guidelines for program assessment (Section 10152(c)(1)). The Byrne JAG grant statutes nowhere authorized the Department of Justice (“DOJ”) to add immigration conditions like the Notice and Access Conditions at issue here. The Court cited the Seventh Circuit’s case about the same issues in observing that Congress “did not ‘grant the Attorney General the authority to impose conditions that require states or local governments to assist in immigration enforcement, nor to deny funds to states or local governments for the failure to comply with those conditions.’ City of Chicago v. Sessions, 888 F.3d 272, 284 (7th Cir. 2018).”

The Court additionally explained that Congress designed the Byrne JAG grant as a “formula grant,” and therefore “‘not awarded at the discretion of a state or federal agency, but … awarded pursuant to a statutory formula.’ City of Los Angeles v. McLaughlin, 865 F.2d 1084, 1088 (9th Cir. 1989).” Pursuant to Section 10156(a), the statutory formula for the Byrne JAG grant requires the Attorney General to give 50% of available funds to each State in proportion to its population, with the remaining 50% to be given to each State in proportion to its violent crime rate. The Court reminded that the Attorney General’s authority regarding Byrne JAG fund distribution was extremely limited and the formula grant characteristic also supported the view that the Attorney General’s discretion was quite restricted for the distribution of Byrne JAG funds.

The Court found that the Notice and Access Conditions exceeded statutory authority, and that the Attorney General’s attempt to impose such conditions was a violation of the separation of powers doctrine and ultra vires. Accordingly, the City had shown a likelihood of success on the merits pertaining to the Access and Notice Conditions.

The Court next considered the second element of the Winter preliminary injunction test – whether irreparable harm to the City would be likely without injunctive relief. As the Seventh Circuit noted in City of Chicago v. Sessions, some localities could view cooperating with the federal government in immigration enforcement matters to secure Byrne JAG funding could harm the community relationships required to identify and solve crimes: “‘The harm to the City’s relationship with the immigrant community if it should accede to the conditions is irreparable.’ City of Chicago, 264 F. Supp. 3d at 950.” The Court here also found that the City had already been irreparably harmed because the Access and Notice conditions had deprived it of Byrne JAG funding for the 2017 fiscal year, to which it otherwise would have been entitled based on the statutory formula. The Court thus found the City had shown irreparable harm.

The Court also found that the public interest would be served by the preliminary injunction because without it the City would face the choice of accepting the DOJ’s unlawful conditions or losing substantial funding for law enforcement needs, both significant hardships. The public interest was best served by the City not having to choose between weakening its relationships with the immigrant population and losing the Byrne JAG grant funds. While Defendants contended that the Conditions were authorized by federal law and helped “operational efficiency,” the Court reiterated that the Conditions were ultra vires. Moreover, it was “‘always in the public interest’ to issue an injunction to ‘prevent the violation of a party’s constitutional rights.’ Melendres v. Arpaio, 695 F.3d 990, 1002 (9th Cir. 2012).” The Court thus found the balance of equities tipped in the City’s favor as well.

The District Court concluded that the City had made a showing of all the necessary injunction elements, and the Court accordingly granted the City’s application for preliminary injunction.

For a more detailed discussion of this case, please see Client Alert Vol. 33, No. 32, available at www.jones-mayer.com.