CPOA CASE SUMMARIES – SEPTEMBER 2020

Provided by James R. Touchstone, Esq.

CONSTITUTIONAL LAW/POLICE CONDUCT

1. Dissent from Ninth Circuit’s denial of rehearing en banc argues that panel’s decision contradicts border search exception precedent and untethers decision from any Fourth Amendment reasonable suspicion calculus.

United States v. Cano, 2020 U.S. App. LEXIS 27933 (9th Cir. Sep. 2, 2020) (Dissent)

Facts: The Ninth Circuit Court of Appeals denied a petition for rehearing and denied on behalf of the Court a petition for rehearing en banc. In the underlying case, the facts are as follows.

In July 2016, Miguel Cano entered the United States from Tijuana as he had done six previous times that summer. During a secondary inspection, a narcotics dog alerted near the spare tire of Cano’s. A Customs and Border Protection (“CBP”) officer discovered approximately 31 pounds of cocaine in 14 vacuum-sealed packages inside the spare tire. CBP officers arrested Cano, seized his cell phone, and then called Homeland Security Investigations (“HSI”). Two HSI agents were dispatched to investigate.

The HSI agents manually searched Cano’s phone and questioned Cano after he waived his Miranda[1] rights. Cano told them that he moved to Tijuana to look for work in San Diego because work was slow in Los Angeles, and he was going to a carpet store in Chula Vista to seek work. He also claimed that he deleted his text messages before crossing the border on his cousin’s advice “just in case” he was pulled over by Mexican police.

One of the agents conducted a second manual search of the phone during the interview, wrote down some of the phone numbers in the phone’s call log, noted that two new text messages had arrived after Cano crossed the border, and took a picture of those messages. The agent then used Cellebrite software to download data from the phone.[2] Agents reviewed the download after the interview and saw a list of Cano’s calls. None of the numbers Cano called corresponded to carpeting stores in San Diego.

Cano was indicted for importing cocaine. He moved to suppress the evidence obtained from the warrantless searches of his phone at the border. The federal District Court denied the motion, finding that the manual search was “clearly permissible” and “the agents had reasonable suspicion and even probable cause” to perform the “logical download.” The government introduced, and relied on, evidence obtained from the phone at trial. Cano presented a third-party culpability defense, arguing that his cousin placed the drugs in Cano’s spare tire without Cano’s knowledge. The jury was hung after the first trial and convicted Cano at the second.

A panel of Ninth Circuit Court of Appeals reversed, concluding that the District Court erred in denying Cano’s motion to suppress. The panel agreed with Cano that the warrantless searches of his phone at the border violated the Fourth Amendment because “border searches are limited in both purpose and scope to searches for contraband.” The panel drew a “distinction between seizing goods at the border because their importation is prohibited and seizing goods at the border because they may be useful in prosecuting crimes.” On this basis, the panel imposed two “practical limitations” on warrantless border searches. First, border officials could search for only contraband (rather than evidence of contraband-related crimes) because otherwise the search would be “untethered” from the border search exception’s purpose of interdicting foreign contraband. Second, border officials need reasonable suspicion of digital contraband (like child pornography) concealed within a cell phone to forensically search a cell phone. Otherwise, the panel asserted, the government could forensically search “every electronic device of anyone arrested at the border” and this would go against the protections set forth in Riley v. California[3] simply because the search occurred at the border.

Applying this view of the border search exception to the facts of the case, the Ninth Circuit panel found that the second manual search of the phone was outside the scope of the border search exception irrespective of the reasonable suspicion of border-related crimes. The agent could not record the phone numbers or photograph the two messages received because “[t]hose actions have no connection whatsoever to digital contraband,” according to the panel. Thus, the second manual search was unreasonable. The panel further held that if the use of the Cellebrite software to download some of the phone’s contents was a forensic search, it was unreasonable because agents had no reasonable suspicion that there was contraband on the phone. The panel also concluded that once a person has been arrested “there is no reason why border officials cannot obtain a warrant before conducting their forensic search” because new technology allows for faster processing of warrant applications.

Finally, the panel found the good faith exception did not apply because under the panel’s interpretation of United States v. Cotterman, 709 F.3d 952 (9th Cir. 2013) (en banc)—that Cotterman authorized only a search for contraband, not evidence—the CBP agents could not have relied in good faith on Cotterman to search for evidence of border-related crimes.

As mentioned, the Ninth Circuit Court of Appeals denied the government’s petition for rehearing and denied on behalf of the Court a petition for rehearing en banc. Judge Bennett, joined by five other Ninth Circuit judges, dissented from the denial of rehearing en banc.

Dissent: The dissent maintained that the border search was authorized by United States Supreme Court and Circuit precedent because such precedent had set forth that a border search is reasonable simply because it takes place at the border. The dissent noted that the Supreme Court had explained that the international border was where “[t]he Government’s interest in preventing the entry of unwanted persons and effects is at its zenith” because “[i]t is axiomatic that the United States, as sovereign, has the inherent authority to protect, and a paramount interest in protecting, its territorial integrity.” United States v. Flores-Montano, 541 U.S. 149, 152-53 (2004). The dissent stated that the panel’s decision meant that border officials in the Ninth Circuit were, as a result of the panel’s decision, now constitutionally barred from forensically searching a traveler’s cell phone at the border, even if armed with reasonable suspicion the phone contains evidence of terrorist acts the traveler is about to commit in the United States; evidence the traveler is entering the United States under a false name; evidence of contemporaneous smuggling activity by the traveler; evidence of other border related crimes; or evidence of non-child pornography contraband. This, the dissent claimed, “is the sovereign power at its nadir, not its zenith.” The dissent therefore asserted that the Circuit should have taken the case en banc to correct the panel’s errors.

The dissent also found flaw in the panel’s interpretation of Cotterman. In Cotterman, a Ninth Circuit panel held that border officials needed reasonable suspicion to forensically search electronic devices at the border. However, the dissent stated that the Cotterman “plainly stated that officials must ‘possess a particularized and objective basis for suspecting the person stopped of criminal activity’ to forensically search a laptop at the border. [Cotterman, 709 F.3d at 967] (quotation marks omitted and emphasis added). In fact, we could not have been clearer in explaining the reasonable suspicion standard as we used ‘criminal activity’ thirteen times when discussing the appropriate focus of the standard. Not once did we say reasonable suspicion of contraband.” The dissent indicated that the panel’s interpretation went against the text and analysis of Cotterman.

In sum, the dissent argued that the panel’s decision to limit the border search exception to searches for contraband found no support in Supreme Court’s border-search precedent and ignored the Court’s admonitions to interpret the doctrine broadly and avoid creating new limitations.[4] The dissent concluded that it was the panel’s decision—and not the search of Cano’s phone—that was unreasonable. Thus, the dissent asserted the Circuit Court should have taken the case en banc to correct the panel’s errors.

1. Discovery of suspicionless search condition was not an intervening circumstance under the attenuation doctrine that broke causal chain between an initial unlawful entry and a later discovery of evidence supporting a conviction.

United States v. Garcia, 2020 U.S. App. LEXIS 28650 (9th Cir. Sep. 10, 2020)

Facts: Officers Richard Lopez and Raul Rosales of the Salinas Police Department were on patrol when they saw a man, later identified as Alfonso Nevarez, run away from them holding his waistband. Nevarez ignored commands to stop and ran into an apartment, where Javier Garcia resided. The officers surrounded the building, with Officer Lopez standing guard over the front door while Officer Rosales guarded the back. Within five minutes, Officer Rosales informed Officer Lopez by radio that he had apprehended Nevarez in a nearby backyard.

Although Nevarez was now safely in custody, Officer Lopez and two sergeants who had joined him decided to enter the apartment without a warrant ostensibly to check for injured persons and to conduct a protective sweep. Though the officers knew nothing about Garcia before entering his home with guns drawn, they encountered Garcia inside as he was coming out of the bathroom. Garcia told the officers that he had been asleep, and the officers observed creases on his face that were consistent with that account. The officers nevertheless handcuffed Garcia and took him outside.

The officers asked then asked Garcia his name, which they used to run a records check. The check revealed that Garcia was subject to a federal supervised release condition requiring him to “submit his person, residence, . . . or any property under his control to a search” by “any federal, state or local law enforcement officer at any time with or without cause.” Purporting to rely on this condition, Officer Lopez went back inside the apartment to conduct a full search and found methamphetamine in a wallet and other incriminating evidence. Officer Lopez placed Garcia under arrest and took him to the police station. Upon questioning, Garcia admitted that the methamphetamine in the wallet was his.

Garcia was charged with possession with intent to distribute methamphetamine. He moved to suppress the evidence found in the apartment and his incriminating statements, arguing that the officers’ initial warrantless entry into his home violated the Fourth Amendment, and that the evidence was the fruit of that unlawful entry. The District Court denied the motion, and Garcia was convicted for possession with intent to distribute methamphetamine.

After Garcia appealed, a Ninth Circuit Court of Appeals panel reversed, holding that the officers violated the Fourth Amendment when they initially entered Garcia’s home without a warrant, ostensibly to determine whether someone inside posed a threat to their safety or required emergency assistance. That panel concluded that the emergency aid exception to the Fourth Amendment’s search warrant requirement did not apply because the officers “lacked an objectively reasonable basis to believe that there was someone inside of the residence in need of immediate assistance,” particularly in light of the fact that the officers already knew that Nevarez was safely in custody before they conducted their warrantless entry. Nor did the protective sweep exception apply, because the officers had no reason to believe that there was anyone remaining in the apartment, much less someone who posed a threat to their safety.

Although the panel concluded that the initial warrantless entry into Garcia’s home violated the Fourth Amendment, it remanded to the District Court to determine whether the exclusionary rule required suppression of the evidence discovered during, and as a result of, the second search.

On remand, the District Court denied the motion to suppress again, reasoning that, under the attenuation doctrine, the officers’ discovery of the suspicionless search condition was an intervening circumstance sufficient to break the causal link between the unlawful original entry and the discovery of the inculpatory evidence in the second search. Garcia appealed yet again, and a different panel of the Ninth Circuit reviewed.

Held: The Ninth Circuit Court of Appeals noted that the Fourth Amendment protects “[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.” The typical remedy for a Fourth Amendment violation is the exclusion of evidence discovered as a result of that violation from criminal proceedings against the defendant. Wong Sun v. United States, 371 U.S. 471, 484-86 (1963). The exclusionary rule encompasses evidence directly “seized during an unlawful search” as well as “[e]vidence derivative of a Fourth Amendment violation—the so-called ‘fruit of the poisonous tree.’” United States v. Gorman, 859 F.3d 706, 716 (9th Cir. 2017) (quoting Wong Sun, 371 U.S. at 484, 488). The Court observed that the incriminating evidence would not have been discovered if not for the unconstitutional entry, which resulted in the officers’ discovery of Garcia inside.

The Court explained that the attenuation doctrine is an exception to the usual rule of exclusion or suppression of the evidence. It applies when “‘the connection between the illegality and the challenged evidence’ has become so attenuated ‘as to dissipate the taint caused by the illegality.’” Gorman, 859 F.3d at 718 (quoting United States v. Ramirez-Sandoval, 872 F.2d 1392, 1396 (9th Cir. 1989)). In determining whether an intervening event has sufficiently purged the taint of a preceding Fourth Amendment violation, three factors are evaluated: (1) “the ‘temporal proximity’ between the unconstitutional conduct and the discovery of evidence,” (2) “the presence of intervening circumstances,” and (3) “the purpose and flagrancy of the official misconduct.” Utah v. Strieff, 136 S. Ct. 2056, 2061-62 (2016) (quoting Brown v. Illinois, 422 U.S. 590, 603-04 (1975)).

The Ninth Circuit explained that it must determine whether, under the attenuation doctrine, the discovery of the suspicionless search condition was an intervening circumstance that broke the causal chain between the initial unlawful entry and the discovery of the evidence supporting Garcia’s conviction in the underlying case.

The Government conceded that the first factor, the temporal proximity between the unconstitutional conduct and the discovery of evidence, weighed in favor of suppression. As to the second factor, intervening circumstances, the Court concluded that the officers’ discretionary decision to conduct a full investigatory search of the Garcia’s home, combined with the lack of evidence for why the officers decided to avail themselves of the search condition, compelled the conclusion that the discovery of the Garcia’s suspicionless search condition was not a sufficient intervening circumstance. As to the third factor, the purpose and flagrancy of the violation, the Court found particularly significant that the officers entered Garcia’s home without cause, detained him at gunpoint, and removed him from the premises in handcuffs; and concluded that whatever role the officers’ subjective good faith should play in the attenuation analysis, it was not enough to outweigh the other two factors, which both favored suppression.

The Ninth Circuit Court of Appeals thus concluded that the attenuation doctrine did not apply in the circumstances here. The Court of Appeals held that the District Court therefore erred in denying Garcia’s motion to suppress. The Court of Appeals reversed Garcia’s conviction and sentence and remanded with instructions to suppress the evidence found in Garcia’s home and on his person, as well as the statements he made at the police station following his arrest

1. Fourth Amendment requires probable cause determination by neutral and detached magistrate to justify continued detention pursuant to immigration detainer.

Gonzalez v. U.S. Immigration & Customs Enforcement, 2020 U.S. App. LEXIS 28827 (9th Cir. Sep. 11, 2020)

Facts: Gerardo Gonzalez is a United States citizen who has never been removable from the United States. After Gonzalez was booked on state law criminal charges by the Los Angeles Police Department (“LAPD”), an Immigration and Customs Enforcement (“ICE”) agent ran his name through electronic databases, an automated procedure that ICE uses to determine whether an individual is a removable noncitizen. Because one database flagged Gonzalez’s birthplace as being in Mexico, and the ICE agent could not find records showing that Gonzalez had lawfully entered the United States, the agent determined that Gonzalez was removable.

In December 2012, the ICE officer issued an immigration detainer, requesting that the Los Angeles Sheriff’s Department (“LASD”) detain Gonzalez for up to an additional five days in the Los Angeles County Jail after when he was entitled to release from custody on state criminal charges so that ICE could take him into its custody. While the detainer remained pending, Gonzalez brought suit against the Government, raising Fourth Amendment and other claims challenging the legality of the detainer.

Gonzalez represented three certified classes which were defined to include, in relevant part, all current and future individuals who are subject to an immigration detainer issued by an ICE agent located in the Central District of California, excluding individuals with final orders of removal or who are subject to ongoing removal proceedings. As relevant here, one of these classes, the Judicial Determination Class was further defined to include those individuals detained pursuant to a detainer for longer than 48 hours.

Plaintiffs raised class claims that the Government violated the Fourth Amendment in part because the Government failed to provide a prompt probable cause determination by a neutral and detached magistrate under Gerstein v. Pugh, 420 U.S. 103 (1975). The Gerstein claim was brought by the Judicial Determination Class.

Plaintiffs later moved for summary judgment on the Judicial Determination Class’s Gerstein claim. The District Court sua sponte granted summary judgment for the Government, determining that Gerstein did not directly apply to the immigration context because those cases arose in the criminal context. Focusing on the civil immigration nature of this case, the District Court determined that it was not unconstitutional for Congress to delegate probable cause determinations to executive officers, rather than an immigration judge, magistrate judge, or federal judge. Thus, the District Court granted summary judgment to the Government on the Judicial Determination Class’s Gerstein claim. Plaintiffs appealed the summary judgment ruling.

Held: The Ninth Circuit Court of Appeals reversed the summary judgment for the Government on Plaintiffs’ Gerstein claim. The Fourth Amendment protects against unreasonable seizures by the government. U.S. Const. amend. IV. The Court noted that the “[t]he infringement on personal liberty of any ‘seizure’ of a person can only be ‘reasonable’ under the Fourth Amendment if we require the police to possess ‘probable cause’ before they seize him.” Terry v. Ohio, 392 U.S. 1, 38 (1968) (emphasis added). In Gerstein, the United States Supreme Court explained that the Fourth Amendment requires that probable cause be timely decided by a neutral and detached magistrate whenever possible. “When the stakes are [as] high” as “prolonged detention,” “the detached judgment of a neutral magistrate is essential if the Fourth Amendment is to furnish any meaningful protection from unfounded interference with liberty.” Gerstein, supra, at p. 114. Thus, “the Fourth Amendment requires a judicial determination of probable cause as a prerequisite to extended restraint of liberty following arrest.” Id.

Moreover, that determination must be “timely.” Id. at 126. Regarding timeliness, the Supreme Court in County of Riverside v. McLaughlin, 500 U.S. 44 (1991), explained that “[a] . . . judicial determination[] of probable cause within 48 hours of arrest will, as a general matter, comply with the promptness requirement of Gerstein.” 500 U.S. at 56. However, “[w]here an arrested individual does not receive a probable cause determination within 48 hours, the calculus changes.” Id. at 57.

Moreover, any detention of a suspected alien “must be based on consent or probable cause” that the person is in fact an alien. United States v. Brignoni-Ponce, 422 U.S. 873, 881-82 (1975). “[B]road congressional power over immigration . . . cannot diminish the Fourth Amendment rights of citizens who may be mistaken for aliens.” Id., at p. 884.

Explaining that the District Court erred in concluding that Gerstein does not apply in the civil immigration context, the Court of Appeals concluded that, because the Fourth Amendment requires probable cause to seize or detain an individual for a civil immigration offense, it followed that the Fourth Amendment requires a prompt probable cause determination by a neutral and detached magistrate to justify continued detention pursuant to an immigration detainer. The Ninth Circuit stated that detaining persons for more than 48 hours pursuant to an immigration detainer, as was the situation here, implicated Gerstein. Accordingly, the Ninth Circuit reversed on this issue and remanded for the District Court to apply the correct legal standard.

1. Summary judgment in favor of defendants proper because there was no triable issue of fact regarding whether officers unreasonably fired at robber during a high-speed chase.

Koussaya v. City of Stockton, 2020 Cal. App. LEXIS 884 (3rd Dist. Sep. 21, 2020)

Facts: In July 2014, Stephanie Koussaya, who worked as a bank teller at a Stockton bank, was taken hostage, along with two other women, by three armed bank robbers, Alex Martinez, Jaime Ramos, and Gilbert Renteria, Jr. The hostages were used as human shields in order to facilitate the robbers’ escape from the bank, and then forced into a Ford Explorer belonging to one of the hostages, Kelly Huber. A high-speed chase with law enforcement followed. Huber was pushed out of the vehicle after Ramos shot her in the leg, apparently by mistake. Thereafter, the pursuit lasted for more than an hour, reaching speeds of over 100 miles per hour, and included exchanges of gunfire between Martinez, who was firing an AK-47 assault rifle out of the back of the Explorer, and two Stockton Police Department (“SPD”) officers, Captain Douglas Anderson and Officer Edward Webb.

Koussaya came to the decision that her best chance at surviving the situation was to open one of the rear side doors and throw herself from the moving vehicle. As Koussaya explained, having already heard multiple rounds hit the Explorer during the pursuit, she believed that if she did not jump from the vehicle she would be killed by the special weapons and tactics (“SWAT”) team when the chase inevitably came to an end. When Koussaya jumped, the Explorer was moving at a high rate of speed. She sustained serious injuries as her body was flung across the roadway. Minutes after Koussaya’s escape, the chase did come to an end. At that point, police officers fired several hundred rounds into the Explorer, killing two of the robbers and the remaining hostage.

Having sustained serious injuries during her escape from the Explorer, Koussaya sued the City of Stockton and its police department (collectively, the “City”), as well as Captain Anderson and Officer Webb (“officer defendants”), asserting causes of action for assault and battery, intentional infliction of emotional distress, and general negligence. The City and officer defendants filed separate motions for summary judgment. The trial court granted each motion and entered judgment in favor of defendants. Koussaya appealed.

Held: The California Third District Court of Appeal observed that at the time of the events in this case, Penal Code section 835a provided that a peace officer who has reasonable cause to make an arrest “may use reasonable force to effect the arrest, to prevent escape[,] or to overcome resistance,” and “need not retreat or desist from his [or her] efforts by reason of the resistance or threatened resistance of the person being arrested.”[5] The Court explained that “[t]he reasonableness of an officer’s conduct is determined in light of the totality of circumstances,” including “the tactical conduct and decisions leading up to the use of deadly force.” Hayes v. County of San Diego, 57 Cal.4th 622, 629, 626 (2013). However, the reasonableness of a particular use of force must be judged from the perspective of a reasonable officer on the scene, rather than with the 20/20 vision of hindsight. Id., at p. 632.

The Court explained that “‘“‘an officer may reasonably use deadly force when he or she confronts an armed suspect in close proximity whose actions indicate an intent to attack.’” [Citation.]’ [Citation.]” Brown v. Ransweiler, 171 Cal.App.4th 516, 528 (4th Dist. 2009).

Here, the Third District found that both Captain Anderson and Officer Webb had probable cause to believe Martinez posed a significant threat of death or serious physical injury to the pursuing officers. Moreover, Martinez endangered the lives of many innocent bystanders by firing at the pursuing officers. Although the Court agreed that the officers – in attempting to neutralize the imminent threat Martinez posed to the lives of officers and innocent bystanders – endangered Koussaya and the other remaining hostage in the Explorer, the Court concluded that no reasonable juror would conclude those actions were outside “the range of conduct that is reasonable under the circumstances.” (Id., at p. 537.)

Koussaya argued that the reasonableness of these officers’ respective uses of deadly force could not be determined on summary judgment because both officers violated an order from a lieutenant not to shoot at the Explorer and also violated general orders issued by the SPD governing vehicle pursuits and use of firearms. The Court disagreed, explaining that a general order on when officers were prohibited from firing at moving or fleeing vehicles did not establish the standard of care for using deadly force.

The Court stated that it was not persuaded that the totality of either officer defendant’s conduct transformed an otherwise reasonable use of deadly force into an unreasonable use of such force. Therefore, the Third District concluded that the trial court properly granted these officers’ motion for summary judgment.

The Court of Appeal also concluded that because Captain Anderson and Officer Webb were not liable for Koussaya’s injuries allegedly caused by their respective uses of deadly force, the City could not be held vicariously liable for their conduct. The Court thus concluded that conclude the trial court properly granted the City’s motion for summary judgment.

Accordingly, the Third District Court affirmed the trial court’s judgment.

1. Officer not entitled to qualified immunity in shooting of unarmed person who, after initially attacking officer, no longer posed an immediate threat as he approached.

Lam v. City of Los Banos, 2020 U.S. App. LEXIS 30638 (9th Cir. Sep. 25, 2020)

Facts: 42-year-old Sonny Lam (“Sonny”) had Type 2 diabetes and a history of mental health issues that included symptoms such as “hearing voices.” Sonny had previously managed these mental health issues with medication, but he had stopped taking his medications, and his mental and physical health deteriorated as a result. At the time of the incident for this case, Sonny was 5’ 8”, weighed 136 pounds, and was very frail. Sonny lived with his then 80-year-old father Tan Lam (“Tan”) at Sonny’s home in Los Banos, California.

In September 2013, Sonny became agitated and unsuccessfully attempted to hit his father. Tan Lam asked a neighbor to call 911, believing that police would make Sonny take his medication and could take Sonny to get specialized treatment at a hospital. City of Los Banos (“City”) police Officer Jairo Acosta was dispatched to investigate the call as a possible assault. When he arrived, Tan told the officer that Sonny had “lost his mind” before the two entered the home. Sonny was in his bedroom. When Officer Acosta opened the bedroom door, Sonny yelled for the officer and Tam to get out of the room. Officer Acosta approached Sonny and grabbed Sonny’s shoulder to prompt Sonny to leave the room. Sonny began pushing Officer Acosta, which resulted in the officer – and Lam behind him – moving into the hallway. Lam retreated further in the hallway, unable to see from behind the officer. Officer Acosta radioed dispatch with a non-urgent request for backup.

According to Officer Acosta’s testimony, Sonny grabbed what the officer thought was a knife, but was actually scissors. Officer Acosta pulled his gun and took a step back as Sonny approached with the scissors. Officer Acosta said he told Sonny to drop the scissors, although Tan Lam disputed that Officer Acosta gave a warning. Sonny stabbed the officer in the forearm with the scissors, and Officer Acosta shot Sonny in the right calf.

After Officer Acosta fired the first shot, he yelled at Tan to go back. Officer Acosta retreated down the hall, and took the time to clear his handgun, which had jammed. Officer Acosta continued backing down the hallway so that Tan was behind him. When Officer Acosta was positioned near the turn of the hallway, he fired the second shot at Sonny, who was still in the main hallway. Officer Acosta did not provide a warning to Sonny before firing the second shot. The second shot hit Sonny in the chest at a downward angle, and he fell. Sonny was later taken to the hospital, where he died during surgery.

Tan Lam filed a complaint against both the City[6] and Officer Acosta, alleging violations of constitutional rights under 42 U.S.C. section 1983, among other claims. A jury specifically found that Sonny had stabbed Officer Acosta in the forearm with a pair of scissors prior to the first shot, that the officer had retreated from Sonny after firing the first shot, and that Sonny did not approach the officer with scissors before the officer fired the fatal second shot. The jury returned a verdict in Tan’s favor on his Fourth and Fourteenth Amendment claims, and awarded him a total of $2.75 million. The District Court entered judgment for Tan.

Officer Acosta filed a Rule 50(b) renewed motion for judgment as a matter of law, asserting among other things that he was entitled to qualified immunity. The District Court denied the motion. It concluded that there was sufficient evidence to support the jury’s award in Tan’s favor and that Acosta was not entitled to qualified immunity. The District Court stated that given the jury’s factual determination that Officer Acosta was retreating and no longer being approached with scissors, there was no way the District Court could determine that Officer Acosta was entitled to qualified immunity with regards to the second gunshot. The officer appealed.

Held: On appeal, Officer Acosta argued that Tan Lam failed to establish a Fourth Amendment violation because Officer Acosta’s use of force was objectively reasonable and that, even if there was a constitutional violation, he was entitled to qualified immunity.

The Ninth Circuit Court of Appeals decided that this case was largely controlled by deferential standards of review. Viewing the evidence in the light most favorable to plaintiff as required at this stage, the Court of Appeals held that the evidence sufficiently supported the jury’s special findings that Officer Acosta had retreated from Sonny after firing the first shot, and that Sonny did not have scissors as he approached Officer Acosta before the officer fired the second shot. The Court of Appeals thus concluded that the District Court did not err in concluding that Sonny’s constitutional rights were violated as a result of Officer Acosta’s objectively unreasonable use of deadly force.

The Ninth Circuit then considered the District Court denial of Officer Acosta’s Rule 50(b) motion on qualified immunity as to Tan’s Fourth Amendment claim. The Court explained, “We ask two questions when determining whether an officer is entitled to qualified immunity: ‘(1) whether there has been a violation of a constitutional right; and (2) whether that right was clearly established at the time of the officer’s alleged misconduct.’ Estate of Lopez ex rel. Lopez v. Gelhaus, 871 F.3d 998, 1005 (9th Cir. 2017) (quoting Lal v. California, 746 F.3d 1112, 1116 (9th Cir. 2014)).”

Elaborating on the first step of the qualified immunity test here, the Court noted that in considering whether a constitutional violation occurred, the analysis includes three steps: “First, we consider the type and amount of force inflicted to establish the severity of the intrusion on the individual’s Fourth Amendment rights; second, we consider the government’s interest in the use of that force; and third, we weigh the “gravity of the intrusion on the individual against the government’s need for that intrusion.” See Glenn v. Washington Cnty., 673 F.3d 864, 871 (9th Cir. 2011) (citation omitted).

Here, the Court found deemed the use of deadly force against Sonny as the greatest degree of force possible, and therefore the most severe intrusion[7] on his Fourth Amendment rights. Regarding the government’s interest in using deadly force, the Court – examining the totality of the circumstances – determined that objective evidence supported the conclusion that Sonny was not a threat to Officer Acosta between the first and second shot. Officer Acosta backed away down the hallway after the first shot. The officer had time to speak to Tan Lam to explain why he had fired the initial shot at Sonny, and time to clear his jammed handgun using a “tap, rack[,] and roll” technique. Moreover, the jury had found that, in the moments before the second shot, Sonny did not approach Officer Acosta with scissors. Citing Hopkins v. Andaya[8] as a Circuit case with facts analogous to those here, the Court found that the evidence demonstrated that Sonny did not pose an immediate threat to Acosta or anyone else between the first and second shot. The Court also noted that Officer Acosta did not warn Sonny before firing the second shot, though “there was ‘ample time to give that order or warning and no reason whatsoever not to do so.’”[9] The Court of Appeals therefore found that the District Court properly concluded that Officer Acosta violated Sonny’s Fourth Amendment right.

As to the second step of the qualified immunity test, the Ninth Circuit explained that Hopkins clearly established that Officer Acosta’s second shot violated the Fourth Amendment at the time of the incident. Here, as in Hopkins, an officer’s initial shot was in response to an armed person who had injured him. When the person—by then wounded and unarmed—approached the officer, in both instances the officer shot again, despite being in no imminent danger. The officers in each case had sufficient time to reevaluate whether the approaching person posed an immediate, significant threat between the first and second shots. The Court explained that Hopkins should have made it clear to Officer Acosta that it was unreasonable to shoot Sonny a second time while he stumbled down the hallway toward Officer Acosta—without any weapon, without making any threatening gesture, and after being severely wounded by the first shot. Thus, Hopkins put Officer Acosta on notice that firing the second shot was unlawful.

The Court thus determined that it was clearly established that shooting a nonthreatening suspect would violate the suspect’s constitutional rights. The Court concluded that the trial evidence did not compel the conclusion that Officer Acosta was entitled to qualified immunity, and affirmed on Fourth Amendment excessive use of force claim.

Turning to the Fourteenth Amendment claim, the Court explained that as a parent, Tan Lam had “a Fourteenth Amendment liberty interest in the companionship and society of [Sonny].” Wilkinson v. Torres, 610 F.3d 546, 554 (9th Cir. 2010). Therefore, the issue was whether substantial evidence supported the jury’s verdict that Officer Acosta’s conduct in shooting Sonny and depriving Lam of his Fourteenth Amendment interest “shocks the conscience.” Id. The Court explained that there may be a Fourth Amendment violation because of an unreasonable use of force, but the circumstances may not rise to the level of a Fourteenth Amendment “shock the conscience” violation. Zion v. County of Orange, 874 F.3d 1072, 1077 (9th Cir. 2017).

The Court stated that this evaluation must first determine “whether the circumstances are such that actual deliberation” by Officer Acosta before his use of force was “practical.” Wilkinson v. Torres, 610 F.3d 546, 554 (9th Cir. 2010) (quoting Porter v. Osborn, 546 F.3d 1131, 1137 (9th Cir. 2008)). If actual deliberation before the officer’s use of force was not practical, the Court could not conclude that Acosta violated the Fourteenth Amendment unless substantial evidence indicated that he acted “with a purpose to harm unrelated to legitimate law enforcement objectives.” Id. (emphasis added).

Here, the Court determined that actual deliberation to develop a purpose to harm unrelated to a legitimate law enforcement objective was not practical before Officer Acosta shot Sonny a second time. The Court noted that the purpose to harm standard is a subjective standard of culpability and an officer violates the due process clause if he used force with only an illegitimate purpose in mind. A.D. v. Cal. Highway Patrol, 712 F.3d 446, 453 (9th Cir. 2013). The Court found that although there was a short time interval between the shootings, there was no evidence that Officer Acosta acted with the sort of malicious or vengeful intent required to satisfy the heightened purpose to harm standard. Moreover, the jury found only that Officer Acosta acted “with a purpose to harm,” and not a purpose to harm unrelated to a legitimate law enforcement objective. Therefore, the Ninth Circuit reversed the jury’s verdict for Tan Lam on the Fourteenth Amendment claim and remanded to the District Court for further proceedings.

Dissenting, Judge Bennett stated that Officer Acosta was entitled to qualified immunity on Tan Lam’s Fourth Amendment claim because the plaintiff identified no clearly established law that would have put Officer Acosta on notice that his actions violated the Fourth Amendment.

1. Although subjecting prison visitor to unconsented strip search without first giving her the option to leave violated the Fourth Amendment, qualified immunity applied.

Cates v. Stroud, 2020 U.S. App. LEXIS 30633 (9th Cir. Sep. 25, 2020)

Facts: By September 2016, Tina Cates’ application to visit her boyfriend – who was incarcerated at Nevada’s High Desert State Prison (“HDSP”) – had been approved. After her approval, she visited her boyfriend weekly thereafter. On February 19, 2017, Cates arrived at HDSP before noon for her regular visit. Signs on the premises of the prison alerted visitors that all persons and vehicles on the property were subject to search. As she had done at the beginning of every previous visit, Cates signed a consent form that stated that the signee consented “to the search of my person, vehicle and other property which I have brought onto prison grounds” by correctional officers or by other authorized law enforcement officers. The form also stated that the signee understood that if the signee did not consent to such searches, the signee would be denied visitation for that day and risked visitation denials in the future.

Prison officials believed Cates intended to smuggle drugs to her boyfriend. Myra Laurian, a female criminal investigator for the Office of the Inspector General, approached Cates, confirmed her identity, and told her, without explanation, to follow. Cates believed that Laurian and another male investigator present were “cops” or prison officials, and that she was in their custody. Cates did not feel free to leave. She stated in her deposition that neither investigator informed her that she was free to leave. The two investigators led Cates to the prison administration building. There, Laurian took Cates to a bathroom and instructed her to disrobe and remove her tampon. Cates complied, believing that she had no choice, and Laurian performed a visual body cavity strip search. The male investigator searched Cates’ car. He asked permission to search the contents of Cates’s phone, and Cates refused to grant permission. No contraband was found. Cates was not allowed to visit her boyfriend, and her visiting privileges at the prison were terminated.

Cates stated later in her deposition that she did not consent to the strip search. Rather, she stated that, in signing the consent form that she had signed on every prior visit to the prison, she understood that she was consenting only to a “normal search,” i.e., “[a] search that is a pat-down that they normally do when you go through the prison.” She stated that after she left HDSP that day, she “just wanted to get home and clean myself up and – like, I felt violated.” She stated that the search at HDSP “traumatized me. . . . I’ve never experienced anything like that in my life. . . . I’m still in shock over it.”

Cates brought suit against several prison officials under 42 U.S.C. section 1983. The District Court granted summary judgment to all defendants. Cates appealed, arguing that the unconsented strip search violated her rights under the Fourth Amendment.

Held: The Ninth Circuit Court of Appeals noted that the Fourth Amendment prohibits unreasonable searches. U.S. Const. Amend. IV; Bell v. Wolfish, 441 U.S. 520, 558 (1979). To determine whether a particular search is unreasonable, the intrusion on the individual’s privacy interests must be balanced against “its promotion of legitimate governmental interests.” Delaware v. Prouse, 440 U.S. 648, 654 (1979).

The Court of Appeals explained that qualified immunity protects government officials acting in good faith and under the color of state law from suit under Section 1983. Pearson v. Callahan, 555 U.S. 223, 231 (2009). Qualified immunity bars suits against government officials when either (1) no deprivation of constitutional rights was alleged or (2) the law dictating that specific constitutional right was not yet clearly established. Id. at 236. The Court elaborated, relevant here, that the function of the inquiry under the second prong is to ensure that officials are subject to suit only for actions that they knew or should have known violated the law. Hope v. Pelzer, 536 U.S. 730, 741 (2002). Law is “clearly established” for the purposes of qualified immunity analysis if “every reasonable official would have understood that what he is doing violates that right.” Taylor v. Barkes, 135 S. Ct. 2042, 2044 (2015) (internal quotations and citations omitted).

Considering the first prong of the qualified immunity analysis, the Court explained that in determining whether a prison search is reasonable under the Fourth Amendment, the prison’s “significant and legitimate security interests” must be balanced against the privacy interests of those who enter, or seek to enter, the prison. Bell, supra, at p. 560. However, the Court stated, prisoners do not shed all constitutional rights at the prison gate, though these rights may be limited or restricted.[10] The Court stated that “[s]trip searches involving the visual exploration of body cavities [are] dehumanizing and humiliating,”[11] and that “[t]he intrusiveness of a body cavity search cannot be overstated.”[12] The Court noted that the Fourth Amendment permits these searches, even of inmates, only in limited circumstances. Moreover, the Court noted that “[a] critical distinction between a visitor, on the one hand, and a prisoner or detainee, on the other, is that a visitor can leave the administrative area of a prison without ever coming into contact with a prisoner.”

The Ninth Circuit explained that because the ability of prison officials to conduct strip searches of visitors based on reasonable suspicion is premised on the need to prevent introduction of contraband into the prison, a search of a visitor who no longer intends to enter the portion of the prison where contact with a prisoner is possible, or who was leaving the prison, must rely on another justification besides reasonable suspicion. The Court stated that ordinarily, a visitor could not introduce contraband into the prison simply by appearing in the administrative area of the prison. If prison officials had reasonable suspicion that such a visitor was carrying contraband, the prison’s security needs would justify a strip search only if the visitor insisted on access to a part of the prison where transfer of contraband to a prisoner would be possible. If the visitor preferred to leave the prison without such access, the prison’s security needs could be satisfied by simply letting the visitor depart.

The Ninth Circuit held that even if there was a reasonable suspicion that plaintiff was seeking to bring drugs into the prison (a question the Court did not reach), Laurian violated Cates’ Fourth Amendment rights by subjecting her to the search without first giving Cates the option of leaving the prison. Thus, the first prong of the qualified immunity analysis was met.

However, the Court held that prior to this decision, “the contours of the right in this circuit were not ‘sufficiently clear [such] that a reasonable official would understand that what he is doing violates that right,’ and accordingly extend[ed] qualified immunity.” Jessop v. City of Fresno, 936 F.3d 937, 940-41 (9th Cir. 2019) (en banc) (quoting Anderson v. Creighton, 483 U.S. 635, 640 (1987)). The Court explained that when Cates was subject to the strip search here, there was no case in the Ninth Circuit where the Court had held that a prison visitor has a right to leave the prison rather than undergo a strip search conducted on the basis of reasonable suspicion. The Court stated that there had been no controlling precedent in the Ninth Circuit, or a sufficiently robust consensus of persuasive authority in other circuits, holding that prior to a strip search a prison visitor—even a visitor as to whom there is reasonable suspicion—must be given an opportunity to leave the prison rather than be subjected to the strip search. Accordingly, the Ninth Circuit Court of Appeals affirmed.

1. Ruse that revealed officers’ identity as law enforcement, but misrepresented the purpose of their investigation so that officers could evade limitations on their authority, violated the Fourth Amendment.

United States v. Ramirez, 2020 U.S. App. LEXIS 30635 (9th Cir. Sep. 25, 2020)

Facts: In November 2016, a Federal Bureau of Investigation (“FBI”) agent, while conducting an undercover investigation into the file-sharing of child pornography, located a network user sharing suspected child pornography files on a file-sharing network. The FBI traced the internet protocol (“IP”) address used to share the files to an account registered to Stefan Ramirez at a specific residential address on Archie Avenue. The FBI surveilled the residence on four occasions in February, March, and May 2017. Although the internet account was in Ramirez’s name, several people were known to have lived at the Archie Avenue residence, any one of whom could have used Ramirez’s computer to share the suspected child pornography. The FBI obtained a warrant to search the residence, including “[v]ehicles located at or near the premises that fall under the dominion and control of STEFAN RAMIREZ or any other occupant of the premises.” Thus, though the warrant authorized the search of the house and car, it did not authorize the FBI to search or arrest Ramirez himself, and it permitted the FBI to search or seize Ramirez’s car only if it was located “at or near the premises.”

Under the warrant and the law established by Michigan v. Summers, 452 U.S. 692 (1981), FBI agents had no authority to seize Ramirez or search his car when they arrived to execute the warrant, because neither was at the residence. However, the agents manufactured the authority to seize them by falsely claiming to be police officers responding to a burglary to lure Ramirez home. By luring Ramirez home, the agents’ successful deceit enabled them to obtain incriminating statements from Ramirez and evidence from his car and person.

Ramirez filed a motion to suppress the statements and the evidence, arguing in relevant part that the agents unlawfully used a ruse to create the authority to seize Ramirez and his car, and that his statements, his phone, and the electronic devices taken from his car were therefore all obtained in violation of the Fourth Amendment. The District Court denied the motion. Ramirez then entered a conditional guilty plea to receipt and distribution of material involving the sexual exploitation of minors under 18 U.S.C. section 2252(a)(2). He was sentenced to 151 months in prison followed by 60 months of supervised release. Ramirez appealed.

Held: The Ninth Circuit Court of Appeals observed that the Fourth Amendment to the Constitution of the United States dictates that “no warrants shall issue, but upon probable cause, . . . and particularly describing the place to be searched, and the persons or things to be seized.” U.S. Const. amend. IV. The particularity requirement “confines an officer executing a search warrant strictly within the bounds set by the warrant.” Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388, 394 n.7 (1971). The particularity requirement leaves nothing “to the discretion of the officer executing the warrant.” Marron v. United States, 275 U.S. 192, 196 (1927). “To the extent [government] agents want[] to seize relevant information beyond the scope of the warrant, they should [seek] a further warrant.” United States v. Sedaghaty, 728 F.3d 885, 914 (9th Cir. 2013). Thus, a search or seizure pursuant to an otherwise valid warrant is unreasonable under the Fourth Amendment to the extent it exceeds the scope of that warrant. Horton v. California, 496 U.S. 128, 140 (1990).

The Court stated that it must decide whether it was reasonable under the Fourth Amendment for the FBI to use deception in executing the warrant to expand the authorized scope of the items and persons to be searched and seized. The Court explained that unlike permissible use of deception such as undercover operations,[13] deception is unlawful when the government makes its identity as law enforcement known to the target of the ruse and exploits the target’s trust and cooperation to conduct searches or seizures beyond that which is authorized by the warrant or other legal authority, such as probable cause.

Here, the warrant did not authorize the FBI agents to seize Ramirez, nor did the Government argue that it had reasonable suspicion or probable cause to do so. The Government conceded instead that at the time the agents seized Ramirez, the agents knew only that child pornography had been shared from the Archie Avenue residence; it did not know who was responsible. The Ninth Circuit stated that because Ramirez and his car were not located at the Archie Avenue residence when the FBI arrived to execute their search warrant, Ramirez and his car fell outside the scope of the warrant. The FBI therefore lacked the legal authority to seize them when they arrived to execute the warrant, before they employed their deliberate ruse. The Court found that it was only by posing as police officers investigating a fictitious home burglary that the agents convinced Ramirez to drive home, thereby creating the authority to seize him and his car that did not otherwise exist at the time.

The Court held that, under the particular facts of this case, the agents’ use of deceit to seize and search the defendant violated the Fourth Amendment. Balancing the Government’s justification for its actions against the intrusion into the Ramirez’s Fourth Amendment interests, the Court concluded that the Government’s conduct was clearly unreasonable. The Court rejected the Government’s argument that the agents never seized Ramirez, and maintained that the seizures of Ramirez and the electronic devices in his car were the direct result of the FBI agents’ unreasonable ruse. The Court also held that the Government failed to carry its burden to show that Ramirez’s incriminating statements, made after an agent revealed the true purpose of the investigation and asked to speak with him, were not obtained through exploitation of illegality rather than by means sufficiently distinguishable to be purged of the primary taint. The Ninth Circuit Court of Appeals accordingly reversed the District Court’s denial of Ramirez’s suppression motion, and remanded for further proceedings.

A dissenting judge wrote that the core Fourth Amendment requirements of probable cause and a particularized warrant were satisfied with respect to a search of Ramirez’s car for child pornography; that the agent’s subsequent use of the ruse only affected the manner in which the search fulfilled the condition that the car be searched while it was at Ramirez’s house, which is not one that was required by the Fourth Amendment; that even assuming that a brief initial pat-down of Ramirez was an unconstitutional seizure, his subsequent confession was in no sense a fruit of that momentary frisk; and that Ramirez was not seized during his subsequent interview with two FBI agents that was conducted in his own home, so his confession could not be suppressed on the theory that it was a fruit of any such alleged seizure.

1. Bail determinations must be based upon consideration of individualized criteria.

In re Humphrey, No. S247278, 2020 Cal. LEXIS 5543 (Cal. Aug. 26, 2020)

Background: On August 26, 2020, the Supreme Court of California issued an order making a part of the California First District Court of Appeal’s 2018 case, In re Humphrey,[14] binding on trial courts pending final resolution of the case. In Part III of that opinion, the First District emphasized that bail determinations must be based upon consideration of individualized criteria, including a person’s particular circumstances and ability to pay. The facts of that case and the First District’s analysis in Part III of its opinion follow.

In re Humphrey involved 63-year old retiree and San Francisco resident, Kenneth Humphrey, who was arrested and charged with first degree robbery, first degree residential burglary, inflicting injury (but not great bodily injury) on an elder and dependent adult, and other charges. The trial court did not grant Humphrey’s request to be released on his own recognizance or any kind of supervised release, and instead, set bail at $600,000 based on the bail schedule. Humphrey filed a motion for a formal bail hearing contesting the bail, asserting he could not afford the bail and that the bail violated his Constitutional rights. At the hearing, the pretrial services agency submitted a one-page form risk assessment report to the trial court. The report did not suggest that any agency representative ever met with Humphrey. There was no individualized explanation of its risk assessment of Humphrey, no information regarding the possible use of an unsecured bond, or regarding any supervised release programs as less restrictive release options. The record did not indicate that the trial court ever asked the pretrial services agency to provide any such information. The trial court acknowledged Humphrey’s efforts to engage in drug treatment and noted that Humphrey had never previously failed to appear at a court ordered hearing. However, the trial court maintained nonetheless that a high bail was still warranted because of public safety and flight risk concerns and modified the bail to $350,000. Humphrey could not afford this amount either and was detained prior to trial due to his financial inability to post bail.

Humphrey filed a petition for writ of habeas corpus with the First District Court of Appeal, contending that he was denied due process of law and deprived of his personal liberty on the basis of poverty, under the due process and equal protection clauses of the Fourteenth Amendment to the United States Constitution and article 1, Section 7 of the California Constitution. Specifically, Humphrey claimed that bail was set by the trial court without inquiry or findings concerning either his financial resources or the availability of a less restrictive non-monetary alternative condition or combination of conditions of release.

The Court of Appeal observed that the prosecutor had presented no evidence that nonmonetary conditions of release could not sufficiently protect the 79-year-old victim or public safety, and that the trial court found Humphrey suitable for release on bail. However, the trial court still set bail in an amount it was impossible for Humphrey to pay. The Court of Appeal determined this effectively constituted a sub rosa detention order lacking the due process protections constitutionally required to attend such an order.

The appellate court reversed and remanded, declaring that Humphrey was entitled to a new bail hearing at which the trial court must inquire into and determine his ability to pay, consider nonmonetary alternatives to money bail, and, if it determined Humphrey was unable to afford the amount of bail the trial court deemed necessary, follow the procedures and make the findings necessary for a valid order of detention. The First District concluded, among other things, that equal protection and due process principles required that pretrial detention should depend on an individualized assessment of the need for the person to be detained, rather than on the defendant’s financial resources.

Events Following the Court of Appeal’s Decision

The California Supreme Court granted review on its own motion on May 23, 2018. Under California Rules of Court, rule 8.1115(e)(1), the Court of Appeal’s published opinion therefore “has no binding or precedential effect, and may be cited for persuasive value only,” “unless otherwise ordered by the Supreme Court.” In June 2018, Humphrey’s counsel filed a letter requesting that the Supreme Court order that the Court of Appeal opinion have a binding or precedential effect until the Supreme Court issues its own decision on the case. (See Rule 8.1115(e)(3).) The Supreme Court denied the motion.

On August 4, 2020, Humphrey’s counsel filed a letter renewing the request to grant the Court of Appeal opinion a binding or precedential effect, based on changed circumstances. On August 19, 2020, Attorney General Xavier Becerra sent a letter to the Supreme Court supporting the request, in part, asserting that “the unexpected change in circumstances caused by the unprecedented impacts of the novel coronavirus pandemic warrant reconsideration of that earlier decision.” The letter noted that the First District maintained that where a criminal defendant is otherwise judged suitable for release pending trial, that defendant should not be detained through the setting of bail in an unnecessarily high amount that the defendant cannot pay. The Attorney General said this core principle had “become especially important for bail decisions occurring during the pendency of [the Supreme] Court’s review.” With the exception of Part IV, the Attorney General thus joined in Humphrey’s renewed request for the Supreme Court to order that the appellate decision have binding precedential effect.

The Supreme Court granted Humphrey’s renewed request to restore the precedential effect of the January 2018 Court of Appeal case, but (as mentioned earlier) only as to Part III of the opinion, discussed below.

Part III of In re Humphrey

The First District Court of Appeal held that bail determinations must be based upon consideration of individualized criteria. The Court explained that failure to consider a defendant’s ability to pay before setting money bail is “one aspect of the fundamental requirement that decisions that may result in pretrial detention must be based on factors related to the individual defendant’s circumstances.” The Court stated that a defendant may not be imprisoned solely due to poverty and that rigorous procedural safeguards are necessary to assure the accuracy of determinations that an arrestee is dangerous and that detention is required due to the absence of less restrictive alternatives sufficient to protect the public.

Here, the First District noted that the $600,000 bail initially ordered was prescribed by the county bail schedule, which was also the basis for the $350,000 reduced bail order. The Court explained that bail schedules provide standardized money bail amounts based on the offense charged and prior offenses, regardless of other characteristics of an individual defendant that bear on the risk he or she currently presents. The Court stated that these bail schedules, therefore, “represent the antithesis of the individualized inquiry required before a court can order pretrial detention.” The Court observed that bail schedules have been criticized as undermining the judicial discretion necessary for individualized bail determinations, as based on inaccurate assumptions that defendants charged with more serious offenses are more likely to flee and reoffend, and as enabling the detention of poor defendants and release of wealthier ones who may pose greater risks.

The Court of Appeal explained that it did not criticize the trial court’s consultation of the bail schedule because such consultation was statutorily required here. Under Penal Code section 1275(c), for serious or violent felonies, the trial court could not depart from the amount prescribed by the schedule without finding unusual circumstances.

However, the Court concluded that “unquestioning reliance upon the bail schedule without consideration of a defendant’s ability to pay, as well as other individualized factors bearing upon his or her dangerousness and/or risk of flight, runs afoul of the requirements of due process for a decision that may result in pretrial detention. Once the trial court determines public and victim safety do not require pretrial detention and a defendant should be admitted to bail, the important financial inquiry is not the amount prescribed by the bail schedule but the amount necessary to secure the defendant’s appearance at trial or a court-ordered hearing.” Moreover, for poor individuals arrested for felonies, reliance on bail schedules constituted “a virtual presumption of incarceration.”^[15]

Here, the Court of Appeal observed that the prosecution had not presented any evidence to establish that “no condition or combination of conditions of release would ensure the safety of the community or any person” (United States v. Salerno, 481 U.S. 739, 743-744), and that would thereby justify abridgement of Humphrey’s freedom while awaiting trial. The First District noted that neither the prosecution nor the trial court disputed that any risk Humphrey posed to the victim and public safety could be sufficiently mitigated with the conditions of release the trial court imposed. The Court also expressed that the conditions requiring Humphrey to participate in the supervised residential drug treatment program and to stay away from the victim, addressed the particular circumstances of Humphrey and his offense, but the bail amount was based solely on the bail schedule rather than any individualized inquiry into the amount necessary to satisfy the purposes of money bail in this case. The Court noted that the record did not show that Humphrey was able to pay even the reduced bail amount of $350,000, and nothing in the record suggested that his claim of indigency was not bona fide. The First District concluded that the trial court thus reached the “anomalous result of finding [Humphrey] suitable for release on bail but, in effect, ordering him detained….”

The First District Court of Appeal thus determined in Part III of its opinion that the trial court did not make its bail determination after considering individualized criteria as required. With the California’s Supreme Court order making Part III of the opinion binding on trial courts pending final resolution, trial courts must therefore hereafter make such individualized inquiries, including regarding ability to pay, and not merely consult the bail schedule to set bail.

For a more detailed discussion of this case, please see Client Alert Vol. 35, No. 30, available at www.jones-mayer.com.

FIREARMS

Dissent from Ninth Circuit’s denial of rehearing en banc argues that 18 U.S.C. section 922(g)(4) is unconstitutional.

Mai v. United States, 2020 U.S. App. LEXIS 28653 (9th Cir. Sep. 10, 2020) (Dissent)

Facts: The Ninth Circuit Court of Appeals denied a petition for panel rehearing and denied on behalf of the Court a petition for rehearing en banc. Two dissents from the denial of rehearing en banc were also presented.

In the underlying appeal, the Court affirmed the District Court’s dismissal of a 42 U.S.C. section 1983 complaint containing an as-applied Second Amendment challenge to 18 U.S.C. section 922(g)(4), which prohibits plaintiff Duy Mai from possessing firearms due to his involuntary commitment in 1999 to a mental institution for more than nine months after a Washington state court found Mai to be both mentally ill and dangerous. The Court concluded that Section 922(g)(4)’s continued application to Mai did not violate the Second Amendment.

The underlying facts as presented by a dissent stated that Mai is “an American success story.” Mai was born in a Thai refugee camp and moved to the United States when he was two years old. He has had a “stellar academic and professional career” receiving a masters in microbiology working in cancer research. He had previously passed an FBI background check as part of a prior job. He has an apparently equivalently fulfilling personal life as a married father of two. In short, “Mai has been a productive member of society for nearly 20 years.” The case here stems from an event decades ago.

At the age of 17, Mai suffered from depression, for which he was involuntarily committed to a mental health hospital for a little over two months total after a Washington state court determined that he might be a harm to others. But since Mai’s commitment order expired in August 2000, he has not been re-committed and his medical record shows no reoccurrence of serious mental illness. He has no criminal history or substance abuse issues. Under state and federal law, Mai was barred from possessing a firearm due to his involuntary commitment. In 2014, Mai successfully petitioned the State of Washington to remove the state-law barrier. Mai submitted his medical history showing that he’d been free of depression since at least 2010 and that, based on the opinions of multiple psychologists, he is not considered a significant risk of suicide or harm to others. the Washington court agreed that Mai doesn’t present a substantial danger to himself or to the public and that the symptoms that led to his commitment are not reasonably likely to reoccur. Thus, today, under state law, Mai regained his right to possess a firearm in full.

However, federal law prohibits an individual who has been “committed to a mental institution” from possessing a firearm under 18 U.S.C. section 922(g)(4). Mai brought an as-applied challenge to Section 922(g)(4) and sought declaratory and injunctive relief declaring him eligible to possess a firearm under federal law and the Constitution. The federal District Court granted the government’s motion to dismiss. Applying intermediate scrutiny, the District Court rejected Mai’s claim based on various studies linking mental illness to a heightened risk of gun violence.

On appeal, a panel of the Ninth Circuit affirmed, determining that, due to Mai’s commitment, he was not protected by the Second Amendment’s “core.” See Mai v. United States, 952 F.3d 1106, 1115 (9th Cir. 2020). The panel also concluded that Washington’s adjudication of his mental soundness and subsequent restoration of his gun rights—and Mai’s present-day mental health status—were irrelevant to the constitutional analysis. The Court ruled that the permanent deprivation of Mai’s fundamental right cleared intermediate scrutiny. Dissenters thought otherwise.

Dissenting Opinions: Dissenting from the denial of rehearing en banc, Judge Collins stated that the panel’s application of intermediate scrutiny here was seriously flawed and created a direct split with the Sixth Circuit. Judge Collins stated the split alone was sufficient to warrant en banc review, and Judge Collins therefore joined part of Judge Bumatay’s dissent from the denial of rehearing en banc. Moreover, Judge Collins stated that he had substantial doubt that the framework of rules that the Circuit Court uses to analyze Second Amendment claims properly construes the controlling principles set forth in District of Columbia v. Heller, 554 U.S. 570 (2008).

Dissenting from the denial of rehearing en banc, Judge Bumatay, joined by several other judges in certain parts, stated that the panel’s opinion justified the deprivation of a fundamental right by ignoring the history and tradition of the Second Amendment and applying poorly suited, foreign statistical studies that had no bearing on Mai’s circumstances. Instead, in this dissent’s view, a proper inquiry would have recognized that the lifetime ban imposed by Section 922(g)(4) on Mai was unequivocally a complete deprivation of his core right to home gun ownership, and therefore that the law was unconstitutional. Judge Bumatay stated that the panel incorrectly identified intermediate scrutiny as the proper standard of review and then misapplied the standard. By failing to correct these errors, the Bumatay dissent argued that the Court undermined its Second Amendment jurisprudence and “g[a]ve an unworthy judicial imprimatur to the false premise that ‘once mentally ill, always mentally ill.’”

Dissenting from the denial of rehearing en banc, Judge VanDyke, joined by Judge Bumatay, stated that he agreed with Judge Bumatay’s dissent from the denial of rehearing en banc and wrote separately because he believes that the panel should have reconsidered the panel’s circular logic about who lies at the core of the Second Amendment. Judge VanDyke stated that the panel’s “bootstrapping, class-based approach to defining those at the ‘core’ of the Second Amendment” was unjust and antithetical to controlling case law. Judge VanDyke also stated that the Court’s intermediate scrutiny jurisprudence was broken as to Second Amendment claims.

EMPLOYMENT

1. Employees’ failure to appeal within 30 days made employer’s disciplinary action final and employer was prohibited from withdrawing it and initiating new adverse action.

Chaplin v. State Pers. Bd., 2020 Cal. App. LEXIS 893 (1st Dist. Sep. 23, 2020)

Facts: Justin Chaplin, James Michels, and Frank Schonig started working with the Department of Forestry and Fire Protection (“CAL FIRE”) as firefighters in 2002, 2004, and 2006 respectively. In April 2014, they along with four other candidates applied to be interviewed for three fire captain positions that had become available. Before the interviews, a battalion chief surreptitiously texted information to the three men about the interview, including interview questions and desired responses. Without reporting that they had received this information, the three proceeded with their interviews, performed well, and were each appointed to be fire captains either in permanent or limited term roles.

In the course of an investigation on another matter against the battalion chief who texted interview information, each of the three admitted that they had received the text messages about the interviews. In January 2015, CAL FIRE served disciplinary notices, known as notices of adverse action, on the each of the three men. Chaplin and Schonig were notified that their appointments as limited-term fire captains would end, and Michels was notified that he failed his probationary period. They were also all notified that their pay would be reduced by 5 percent for 12 months.

This discipline was upheld after each of the men was given a hearing conducted in compliance with Skelly v. State Personnel Bd.[16] (1975) 15 Cal.3d 194. The three firefighters did not appeal their discipline to the Board before the deadline to do so, but Schonig later sought and received a good cause exception to the deadline. His appeal was therefore allowed to proceed.

Within a few weeks of the Skelly hearing upholding the discipline upon the three men, Schonig and Chaplin were given new interviews and were again promoted to fire captain positions. After a news article reported that the director of CAL FIRE would “like to bust [Schonig and Chaplin] down again” from their “boomerang promotions,” CAL FIRE notified Chaplin and Michels that the disciplinary action taken against them was “withdrawn,” and they were placed on administrative leave. It also notified Schonig, who was still in the process of appealing his original discipline, that his discipline was being rescinded and he would also be placed on administrative leave. CAL FIRE then notified the three that they would be sanctioned more severely by being demoted from their then-current positions to the position of fire fighter II, effective June 1.

On appeal to the Board, the three men separately moved to dismiss the imposition of the new discipline. They argued that they could not be disciplined again for the same conduct for which they had already been disciplined. An administrative law judge (“ALJ”) denied their motions, concluding that their demotions were warranted. The Board adopted the decision in April 2016.

In June 2016, the three firefighters filed a petition for a writ of administrative mandamus in the trial court under Code of Civil Procedure section 1094.5 reiterating their claim that the Board was prohibited from disciplining them twice for the same misconduct. The trial court denied the petition. The firefighters appealed.

Held: On appeal, the firefighters contended that the ALJ’s decision to allow the second notices of action to proceed was contrary to statute. They argued that the Board’s decision was contrary to Government Code section 19575, which precludes employers from withdrawing final disciplinary actions.

The California First District Court of Appeal observed that under the State Civil Service Act’s disciplinary scheme, “the appointing power has the authority to take disciplinary action subject to appeal to the Board. ([Government] Code[][section] 19574.) If the employee fails to request or to prosecute an appeal to the Board, then the appointing power’s action is final. ([Government] Code[][section] 19575; [citation].)” (Larson v. State Personnel Bd. (5th Dist. 1994) 28 Cal.App.4th 265, 278, italics added.)

The Court noted that Section 19575 provides the conditions for finality: “The employee has 30 calendar days after the effective date of the adverse action to file with the board a written answer to the notice of adverse action.… If the employee fails to answer within the time specified or after answer withdraws his or her appeal the adverse action taken by the appointing power shall be final.” (Italics added.) The firefighters contended that because the previous adverse actions had become final under Section 19575, CAL FIRE was prohibited from withdrawing the previous notices and initiating new ones.

The First District agreed that once a disciplinary action becomes final, the employer is prohibited from withdrawing it and initiating a new adverse action. The Court explained that the plain language of Section 19575 “could not be clearer: an appointing power’s discipline is final where no appeal is taken within 30 calendar days.”

The Court therefore found that the discipline against Chaplin and Michels became final under Section 19575 because they did not appeal their discipline to the Board within 30 days of its imposition. And because their discipline was final, the Court concluded that CAL FIRE was not permitted to withdraw the notices of adverse action and serve new and different notices.

However, because Schonig appealed the first notice of adverse action to the Board, the Court concluded his discipline was therefore not final under Section 19575 when CAL FIRE served him with the new notice of adverse action. Under Section 19575.5, “[a]t any time before an employee’s appeal is submitted to the board or its authorized representative for decision, the appointing power may with the consent of the board or its authorized representative serve on the employee and file with the board an amended or supplemental notice of adverse action.” The Court stated that the Board impliedly gave its consent to withdraw the original notice and serve a new one when the ALJ denied the motions to dismiss.

Accordingly, the First District Court of Appeal affirmed the trial court’s ruling as to Schonig and reversed it as to Chaplin and Michels.

MISCELLANEOUS

1. Court of Appeal affirms Ruben Lona decision denying appellant’s petition to be removed from the shared gang database.

Lona v. City of Fullerton Police Department, 53 Cal. App. 5th 1073 (4th Dist. 2020)

Facts: Ruben Lona (“Lona”) is an admitted former member of a criminal street gang who claims he left his gang in 2016. In June 2018, invoking the procedure in Penal Code section 186.34, Lona asked the City of Fullerton Police Department (“Department”) to remove his name from the Shared Gang Database that lists him as a suspected gang member or associate. The Department denied his request. Lona then filed a petition for removal pursuant to Penal Code section 186.35. The trial court denied his petition, based in large part on Lona’s sworn statements that he left the gang only three years earlier, still possessed attire that violated the gang injunction applicable to his former gang, Fullerton Tokers Town, and still bears gang tattoos. Lona appealed.

Held: The Court of Appeal of the State of California for the Fourth Appellate District affirmed the decision of the Orange County Superior Court which denied Lona’s petition. The Court of Appeal determined that Lona’s own admissions made in the declaration he provided the Department as part of his June 2018 removal request constituted clear and convincing evidence of Lona’s status as an active gang “associate” or “affiliate,” and thus supported the trial court’s denial of his petition. The Court of Appeal further found that the trial court’s reliance on the declaration rendered harmless any potential error resulting from considering the denial letter when making its decision. In addition, the Court of Appeal determined that the Fullerton Police Department was not required to establish by clear and convincing evidence that Lona was an “active” gang member. Rather, the Fullerton Police Department needed only establish that Ruben Lona was an active gang “associate” or “affiliate” to prevail. Finally, the Court of Appeal determined that Ruben Lona suffered no “actual prejudice” and his right to due process was not violated when the trial court excluded some, but not all, evidence relating to a claim.

Affirmation of the Trial Court’s Ruling Denying Lona’s Petition

First, the Court of Appeal considered whether the trial court erred in admitting the Department’s June 2018 denial letter in which the Department formally denied Lona’s request to be removed from the Shared Gang Database. Lona argued that the trial court had erred because it incorrectly applied the evidentiary rules prescribed in Penal Code Section 186.35(c).

The Court of Appeal thereafter analyzed Penal Code Section 186.34, which creates a four-step process for exchanging information between the person and the Department before the person can file a section 186.35 petition.

The Court of Appeal decided that the language of sections 186.34 and 186.35 are inconsistent and the legislative intent is unclear as to whether a trial court may consider an agency’s denial letter when ruling on the petition. Ultimately, it was not necessary for the Court of Appeal to determine whether the trial court erred in considering the denial letter because any potential error was harmless. The evidence provided in Lona’s own declaration which was submitted to the Department contained substantial evidence of Lona’s status as an active gang “associate” or “affiliate” and thus supported the trial court’s denial of his petition.

The Department Met Its Burden and Proved Lona’s Active “Associate” or “Affiliate” Status by Clear and Convincing Evidence

Next, the Court of Appeal considered whether the Department was required to prove that Lona was an “active” gang member by clear and convincing evidence; and whether, under section 186.35, the terms active “gang membership,” “associate status,” and “affiliate status” are synonymous.

The Court of Appeal determined that these terms are not synonymous because reading section 186.35 in this way would deprive “associate status” and “affiliate status” of any significance in the section. Though section 186.35 does not define the terms “gang member,” “associate,” or “affiliate,” the Court reasoned a common sense reading of the statue suggests that an active gang member is someone who has formally become a member of the gang (having been jumped in or otherwise), while an affiliate or an associate is someone who may be less formally linked to the gang.

The Court of Appeal found that the trial court did not err, and the Department had met its burden by proving by clear and convincing evidence that Lona was an active “associate” or “affiliate” of the gang by and through Lona’s own statements.

The Trial Court Did Not Violate Lona’s Due Process Rights by Denying Him an Opportunity to Respond to and Introduce Evidence to Rebut the Denial Letter

Finally, the Court of Appeal considered whether Lona’s due process rights were violated when the trial court admitted the Department’s June 2018 denial letter into the record and denied Lona the opportunity to rebut the information contained in this letter by using the Departments previously excluded opposition.

The Court of Appeal determined that no due process violation occurred. Lona had argued that the opposition be excluded from the record and the trial court granted Lona the relief he requested. Lona could not thereafter complain during oral argument that he was not able to refer to the excluded evidence. The Court reasoned that an appellant must show actual prejudice resulted from an erroneous exclusion of some, but not all, evidence relating to a claim, and there was no evidence here that Lona suffered any actual prejudice.

For a more detailed discussion of this case, please see Client Alert Vol. 35, No. 29, available at www.jones-mayer.com.

1. Proposition 57 does not exclude sex offender registrants from early parole consideration based on prior convictions, because early parole consideration must be based solely on present offense of conviction.

In re King, 54 Cal. App. 5th 814 (4th Dist. 2020)

Facts: In 2000, a jury convicted Ural King of one count of possession of ephedrine or pseudoephedrine with the intent to manufacture methamphetamine. The trial court found true three serious felony strike allegations. All of those prior felonies require King to register as a sex offender. King was sentenced to 25 years to life pursuant to the three strikes law.

In 2016, Proposition 57 amended the California Constitution to allow early parole consideration for persons “convicted of a nonviolent felony.” (Cal. Const., art. I, section 32(a)(1)).) Proposition 57 expressly authorized the Department of Corrections and Rehabilitation (“CDCR”) to promulgate regulations to implement this mandate (Cal. Const., art. I, section 32(b); “Section 32(b)”). The regulations that the CDCR adopted pursuant to that authority excluded from early parole consideration any person convicted of an offense requiring the person to register as a sex offender. (Cal. Code Regs., tit. 15, section 3491(b)(3).)

In 2019, King was denied early parole consideration by the CDCR because he is required to register as a sex offender. King subsequently filed a petition for writ of habeas corpus, challenging the CDCR’s exclusion of him from early parole consideration under Proposition 57. The superior court denied King’s petition without prejudice to King raising the issue again if the Supreme Court invalidates the CDCR regulation excluding petitioners like him – serving sentences for nonviolent offenses but are required to register as sex offenders because of prior offenses – from early parole consideration under Proposition 57. King petitioned to the California Fourth District Court of Appeal for a writ of habeas corpus on the same grounds on which he sought relief in the superior court.

Held: The Fourth District Court of Appeal noted that Proposition 57 added section 32 to article I of the California Constitution. Section 32(a)(1) provides: “Any person convicted of a nonviolent felony offense and sentenced to state prison shall be eligible for parole consideration after completing the full term for his or her primary offense.” (Section 32(a)(1).)

The CDCR’s implementing regulations exclude from nonviolent early parole consideration any inmate “convicted of a sexual offense that currently requires or will require registration as a sex offender under the Sex Offender Registration Act, codified in Sections 290 through 290.024 of the Penal Code.” (Cal. Code Regs., tit. 15, section 3491, subd. (b)(3).) However, the Court noted that other peer appellate courts had concluded that under the plain language of Proposition 57, inmates serving sentences for nonviolent offenses but are required to register as sex offenders are entitled to early parole consideration. See for example, In re Gadlin (2nd Dist. 2019) 31 Cal.App.5th 784, 789–790.

Section 32(b) authorizes CDCR to promulgate regulations to implement the mandate specified in Section 32(a)(1). The Court explained that “‘[w]here a statute empowers an administrative agency to adopt regulations, such regulations “must be consistent, not in conflict with the statute, and reasonably necessary to effectuate its purpose.”‘” (Ontario Community Foundations, Inc. v. State Bd. of Equalization (1984) 35 Cal.3d 811, 816.) “A regulation that is inconsistent with the statute it seeks to implement is invalid.”[17]

On appeal, King argued that he was entitled to early parole consideration pursuant to the plain language of Proposition 57 and that CDCR’s implementing regulation improperly excluded him from such consideration. CDCR contended that it was not clear from the language of that Section 32(a)(1) which state inmates meet the criteria for early parole consideration because neither “‘convicted’” nor “‘nonviolent felony offense’” is further defined.

The Fourth District disagreed with CDCR that the language of Section 32(a)(1) was ambiguous, and instead agreed with the other peer courts that had analyzed the issue. The Court held that “[t]he plain language of the text is clear: The focus of Proposition 57’s mandate on who should be eligible ‘for early parole consideration is on the inmate’s current conviction, not on any prior convictions.’” (In re Schuster (3rd Dist. 2019) 42 Cal.App.5th 943, 955, review granted Feb. 19, 2020, S260024 see Gadlin, supra, 31 Cal.App.5th at p. 789; In re Chavez (6th Dist. 2020) 51 Cal.App.5th 748, 756, review granted Sept. 16, 2020, S263584.)

The Fourth District therefore concluded that the CDCR regulation (Cal. Code Regs., tit. 15, § 3491, subd. (b)(3)) was invalid insofar as it excluded from early parole consideration inmates who are sex offender registrants because of prior convictions. Accordingly, the Court granted King’s petition for habeas corpus, and directed CDCR to consider King for early parole within 60 days of the issuance of the remittitur.

The Court added that because it was undisputed that King’s current offense was nonviolent, the Court need not and did not consider whether “nonviolent felony offense” was sufficiently defined by the plain language of Section 32. The Court therefore, like Gadlin, did not consider “whether [the] CDCR’s application of its regulations to exclude inmates whose current offense requires registration as a sex offender similarly violates [section 32(a)(1)].” (Gadlin, supra, 31 Cal.App.5th at p. 790.)

[1] Miranda v. Arizona, 384 U.S. 436 (1966).

[2] A Cellebrite “logical download” allows the government access [to] text messages, contacts, call logs, media, and application data on a cell phone and to select which types of data to download. However, the software does not allow access to data stored within third-party applications.

[3] In Riley v. California, 573 U.S. 373 (2014), the United States Supreme Court held that “a warrant is generally required before . . . a search [for information on a cell phone], even when a cell phone is seized incident to arrest.” Id. at 401. The Court limited this holding only to the search incident to arrest exception. Id. at 385 (“These cases require us to decide how the search incident to arrest doctrine applies to modern cell phones . . . .”); id. at 401-02 (“[E]ven though the search incident to arrest exception does not apply to cell phones, other case-specific exceptions may still justify a warrantless search of a particular phone.”).

[4] See United States v. Aigbekaen, 943 F.3d 713, 730 (4th Cir. 2019) (Richardson, J., concurring in judgment) (challenging the majority for imposing even a transnational nexus requirement on criminal activity for border searches).

[5] Penal Code former section 835a; Stats. 1957, ch. 2147, section 11, p. 3807. Effective January 1, 2020, this section was amended to provide:

“(a) The Legislature finds and declares all of the following:

“(1) That the authority to use physical force, conferred on peace officers by this section, is a serious responsibility that shall be exercised judiciously and with respect for human rights and dignity and for the sanctity of every human life. The Legislature further finds and declares that every person has a right to be free from excessive use of force by officers acting under color of law.

“(2) As set forth below, it is the intent of the Legislature that peace officers use deadly force only when necessary in defense of human life. In determining whether deadly force is necessary, officers shall evaluate each situation in light of the particular circumstances of each case, and shall use other available resources and techniques if reasonably safe and feasible to an objectively reasonable officer.

“(3) That the decision by a peace officer to use force shall be evaluated carefully and thoroughly, in a manner that reflects the gravity of that authority and the serious consequences of the use of force by peace officers, in order to ensure that officers use force consistent with law and agency policies.

“(4) That the decision by a peace officer to use force shall be evaluated from the perspective of a reasonable officer in the same situation, based on the totality of the circumstances known to or perceived by the officer at the time, rather than with the benefit of hindsight, and that the totality of the circumstances shall account for occasions when officers may be forced to make quick judgments about using force.

“(5) That individuals with physical, mental health, developmental, or intellectual disabilities are significantly more likely to experience greater levels of physical force during police interactions, as their disability may affect their ability to understand or comply with commands from peace officers. It is estimated that individuals with disabilities are involved in between one-third and one-half of all fatal encounters with law enforcement.

“(b) Any peace officer who has reasonable cause to believe that the person to be arrested has committed a public offense may use objectively reasonable force to effect the arrest, to prevent escape, or to overcome resistance.

“(c)(1) Notwithstanding subdivision (b), a peace officer is justified in using deadly force upon another person only when the officer reasonably believes, based on the totality of the circumstances, that such force is necessary for either of the following reasons:

“(A) To defend against an imminent threat of death or serious bodily injury to the officer or to another person.

“(B) To apprehend a fleeing person for any felony that threatened or resulted in death or serious bodily injury, if the officer reasonably believes that the person will cause death or serious bodily injury to another unless immediately apprehended. Where feasible, a peace officer shall, prior to the use of force, make reasonable efforts to identify themselves as a peace officer and to warn that deadly force may be used, unless the officer has objectively reasonable grounds to believe the person is aware of those facts.

“(2) A peace officer shall not use deadly force against a person based on the danger that person poses to themselves, if an objectively reasonable officer would believe the person does not pose an imminent threat of death or serious bodily injury to the peace officer or to another person.

“(d) A peace officer who makes or attempts to make an arrest need not retreat or desist from their efforts by reason of the resistance or threatened resistance of the person being arrested. A peace officer shall not be deemed an aggressor or lose the right to self-defense by the use of objectively reasonable force in compliance with subdivisions (b) and (c) to effect the arrest or to prevent escape or to overcome resistance. For the purposes of this subdivision, ‘retreat’ does not mean tactical repositioning or other deescalation tactics.

“(e) For purposes of this section, the following definitions shall apply:

“(1) ‘Deadly force’ means any use of force that creates a substantial risk of causing death or serious bodily injury, including, but not limited to, the discharge of a firearm.

“(2) A threat of death or serious bodily injury is ‘imminent’ when, based on the totality of the circumstances, a reasonable officer in the same situation would believe that a person has the present ability, opportunity, and apparent intent to immediately cause death or serious bodily injury to the peace officer or another person. An imminent harm is not merely a fear of future harm, no matter how great the fear and no matter how great the likelihood of the harm, but is one that, from appearances, must be instantly confronted and addressed.

“(3) ‘Totality of the circumstances’ means all facts known to the peace officer at the time, including the conduct of the officer and the subject leading up to the use of deadly force.” (Penal Code section 835a.)

[6] The District Court later granted summary judgment for the City on all claims.

[7] The Ninth Circuit observed that the Supreme Court had declared that “[t]he intrusiveness of a seizure by means of deadly force is unmatched.” Tennessee v. Garner, 471 U.S. 1, 9 (1985).

[8] 958 F.2d 881 (9th Cir. 1992) (per curiam), overruled on other grounds by Saucier v. Katz, 533 U.S. 194 (2001).

[9] Bryan v. MacPherson, 630 F.3d 805, 831 (9th Cir. 2010) (quoting Deorle v. Rutherford, 272 F.3d 1272, 1284 (9th Cir. 2001)).

[10] See Sandin v. Conner, 515 U.S. 472, 485 (1995).

[11] Kennedy v. Los Angeles Police Dep’t, 901 F.2d 702, 711 (9th Cir. 1990), abrogated on other grounds by Hunter v. Bryant, 502 U.S. 224 (1991) (per curiam).

[12] Fuller v. M.G. Jewelry, 950 F.2d 1437, 1445 (9th Cir. 1991) (alteration and citation omitted).

[13] The Court noted that another example of permissible deception is when members of law enforcement conceal their identities to persuade the subject of a valid arrest warrant to open his door to facilitate the arrest.

[14] No. A152056, 19 Cal. App. 5th 1006 (1st Dist. 2018).

[15] The First District noted that a 2019 San Francisco study determined that 85 percent of the inmates of the county jail were awaiting trial and “[o]f these, 40-50% could be released if they could afford to pay their bail.” (The Financial Justice Project, Office of the Treasurer & Tax Collector of the City and County of San Francisco, Do the Math: Money Bail Doesn’t Add up for San Francisco (June 2017) p. 4.)

[16] Skelly requires that civil service employees be given notice of proposed disciplinary action, the reasons for the action, a copy of the charges and the written materials upon which they are based, and an opportunity to respond either orally or in writing. (Skelly, supra, 15 Cal.3d at p. 215.) A “Skelly hearing” refers to the employee’s opportunity to respond, and it has been described as an “informal probable-cause-type proceeding.” (Asimow et al., Cal Practice Guide: Administrative Law (The Rutter Group 2019) ¶ 3:196, p. 3-33 (Asimow).)

[17] Esberg v. Union Oil Co. (2002) 28 Cal.4th 262, 269, superseded by statute on another ground as stated in Alch v. Superior Court (2nd Dist. 2004) 122 Cal.App.4th 339, 396–397.