CONSTITUTIONAL LAW/POLICE CONDUCT

1. Defendant in vehicle detained, not when passenger who exited vehicle was detained, but thereafter when sheriff’s deputy, after smelling marijuana from defendant’s vehicle and seeing suspected marijuana in large clear bags therein, told defendant to remain in vehicle.

People v. Tacardon, 53 Cal. App. 5th 89 (3rd Dist. 2020)

Facts: In March 2018, San Joaquin County Sheriff’s Deputy Joel Grubb saw a BMW legally parked between two houses with its engine and headlights off. Three people were in the BMW. Smoke was coming out of the car windows that were slightly cracked open. Deputy Grubb pulled up 15 to 20 feet behind the BMW and parked with the spotlight illuminated. He did not activate his emergency lights or siren. As the deputy approached the BMW, the passenger in the rear seat, M.K., abruptly exited the car, closed the door behind her, and moved to the rear. Deputy Grubb smelled marijuana at about the time M.K. got out, but not before. At that point, the deputy did not consider any of the car’s occupants free to leave, but he did not communicate this thought to them. Deputy Grubb asked what M.K. was doing. After M.K. stated that she lived there, the deputy asked her to stay near the sidewalk behind the BMW. She complied.

Deputy Grubb then used his flashlight to illuminate the BMW’s interior because the rear windows were tinted. On the rear passenger floorboard, he saw three large clear plastic bags containing a green leafy substance. He also saw a custom-rolled unlit dark brown and green cigarette in the center console, containing a burnt green leafy substance. Defendant Leon William Tacardon was sitting in the driver’s seat. Deputy Grubb asked Tacardon and the remaining passenger for their identifications. Tacardon did not produce identification but gave his name and said he was on probation. Deputy Grubb told Tacardon to stay in the car, and then returned to his patrol car to conduct a records check that confirmed Tacardon’s identification and that he was on searchable probation. Deputy Grubb then secured Tacardon in the back of the patrol car, and, along with other deputies, conducted a probation search of the BMW. The search uncovered what a laboratory analysis would reveal to be 696.3 grams of marijuana in the plastic bags, and a vial of hydrocodone pills. Tacardon was arrested, and $1,904 was found on his person.

Tacardon was charged with possession of a controlled substance for sale and misdemeanor possession of marijuana for sale. Tacardon moved to suppress the evidence during the preliminary hearing pursuant to Penal Code section 1538.5. The magistrate denied the motion. Tacardon’s renewed challenge to the search and seizure under Section 995 was granted by the superior court. The People appealed.

Held: On appeal from the superior court’s grant of the Section 995 motion, the Attorney General argued that the superior court erred in concluding Tacardon was detained when Deputy Grubb ordered M.K. to stay outside the car and near the sidewalk behind it. The Attorney General contended that, regardless of whether M.K. was detained at that point, Tacardon was not detained until after Deputy Grubb smelled marijuana and saw three large bags of the substance on the rear floorboard of the BMW, at which point, the deputy had reasonable suspicion that criminal activity was afoot. Tacardon countered that the superior court correctly determined a reasonable person in Tacardon’s position would not have felt free to leave when the deputy prevented M.K. from going into her house and ordered her to remain by the BMW.

The California Third District Court of Appeal explained that not all police interaction with citizens involve “seizures” of persons. “Only when the officer, by means of physical force or show of authority, has in some way restrained the liberty of a citizen may we conclude that a ‘seizure’ has occurred.” (Terry v. Ohio (1968) 392 U.S. 1, 19, fn. 16.) “As long as a reasonable person would feel free to disregard the police and go about his or her business, the encounter is consensual and no reasonable suspicion is required on the part of the officer. … ‘[I]n order to determine whether a particular encounter constitutes a seizure, a court must consider all the circumstances surrounding the encounter to determine whether the police conduct would have communicated to a reasonable person that the person was not free to decline the officers’ requests or otherwise terminate the encounter.’ [Citation.][…]The officer’s uncommunicated state of mind and the individual citizen’s subjective belief are irrelevant in assessing whether a seizure triggering Fourth Amendment scrutiny has occurred.” (In re Manuel G. (1997) 16 Cal.4th 805, 821; italics added.)

The Court of Appeal explained that it was settled that the driver and occupants of a vehicle are detained when a police officer blocks the vehicle’s only means of departure with the officer’s patrol car.[1] However, without more, a law enforcement officer simply parking behind a defendant would not reasonably be construed as a detention. The Court noted that although the use of emergency lights is a sufficient show of authority to communicate to a reasonable person that he or she is not free to leave,[2] “[w]ithout more, a law enforcement officer shining a spotlight on a person does not constitute a detention.” (People v. Kidd (4th Dist. 2019) 36 Cal.App.5th 12, 21, citing People v. Rico (2nd Dist. 1979) 97 Cal.App.3d 124, 128–129.)

Here, the Third District found no evidence that the BMW was blocked in by Deputy Grubb’s patrol car. The Court maintained that the facts that the deputy pulled up behind the BMW, activated the patrol car’s spotlight, and approached the vehicle on foot, together did not manifest a sufficient show of police authority to constitute a detention. The Court noted that Deputy Grubb did not quickly close the gap between himself and Tacardon or immediately and aggressively question him rather than engage in conversation.[3] The Third District added that although a person whose vehicle is illuminated by police spotlights at night may well feel he or she is the object of official scrutiny, such directed scrutiny does not amount to a detention.

The Court concluded that M.K. was detained after Deputy Grubb’s interaction with her after she exited the BMW and ordered her to remain on the sidewalk near the BMW. However, the Court found no evidence Tacardon observed the deputy’s interaction with M.K., or that the deputy conveyed to Tacardon that he, like M.K., was required to remain.[4] The Court thus concluded that the magistrate’s implied finding that Tacardon was not detained at this point was supported by substantial evidence.

The Third District concluded Tacardon was detained by Deputy Grubb not when the deputy detained M.K., but when the deputy, after smelling marijuana coming from the BMW and seeing three large bags of the substance on the rear floorboard, told Tacardon to remain in the car while he conducted a records check. The Court declared that at that point, the deputy possessed reasonable suspicion Tacardon was engaged in criminal activity. The Court thus concluded the superior court erred by setting aside the magistrate’s ruling denying Tacardon’s motion to suppress evidence. Accordingly, the Court of Appeal reversed the superior court’s order, and remanded with direction to reinstate the information and the magistrate’s order denying Tacardon’s motion to suppress evidence.

1. Because mere unauthorized presence is not a criminal matter, suspicion of unauthorized presence alone does not give rise to inference that criminal activity is afoot.

Hernandez v. Skinner, 969 F.3d 930 (9th Cir. 2020)

Facts: Miguel Reynaga Hernandez (“Reynaga”) accompanied his wife Jane Reynaga Hernandez (“Jane”) to a hearing in late 2017 on a civil order of protection. Jane had filed a request for a protection order against Rachel Elizondo (“Rachel”) in the Yellowstone County Justice Court in Billings, Montana. Reynaga came to the hearing to serve as a witness. On the morning of the hearing, Pedro Hernandez (“Hernandez”),[5] the presiding Justice of the Peace, asked Reynaga and another witness to wait outside the courtroom before they testified.

During Rachel’s testimony, she stated that Reynaga was “not a legal citizen,” and made a similar statement about the other witness waiting with Reynaga. Based on this statement, Hernandez spoke with the local Sheriff’s Office and asked that Reynaga be “picked up.”

Deputy Sheriff Derrek Skinner responded to the call. Outside the courtroom, Skinner asked Reynaga for identification and questioned him regarding his immigration status in the United States. Reynaga produced an expired Mexican consular identification card but was unable to provide detailed information regarding his immigration status because he does not speak English fluently. Skinner then placed Reynaga in handcuffs, searched his person, and escorted him to a patrol car outside the courthouse. With Reynaga waiting in the back of the patrol car, Skinner ran a warrants check and, after Reynaga’s record came back clean, asked the Yellowstone County Dispatch if Immigrations and Custom Enforcement (“ICE”) “wanted him.” An ICE agent returned Skinner’s call and Reynaga was taken to an ICE facility. Reynaga remained in ICE custody for three months, after which the Department of Homeland Security dismissed the deportation proceeding it had commenced against Reynaga.

After his release from detention, Reynaga sued Skinner and Hernandez under 42 U.S.C. section 1983 for violating his Fourth Amendment rights. On cross-motions for summary judgment, the District Court denied each defendant qualified immunity and held that Reynaga’s Fourth Amendment rights had been violated. Skinner and Hernandez filed an interlocutory appeal against the District Court’s denial of qualified immunity.

Held: On appeal, the Ninth Circuit Court of Appeals considered whether the District Court erred in denying Skinner and qualified immunity. The Ninth Circuit explained, “[t]o determine whether an official is entitled to qualified immunity, we evaluate whether (1) the alleged facts constitute a violation of a constitutional right, and (2) the constitutional right was clearly established at the time of the violation.”

The Court explained that under Terry v. Ohio, 392 U.S. 1 (1968), police officers may conduct a brief, investigative stop of an individual when they have reasonable suspicion that the “person apprehended is committing or has committed a criminal offense.” Arizona v. Johnson, 555 U.S. 323, 326 (2009). A court must examine the “totality of the circumstances” to determine whether a detaining officer has a “particularized and objective basis” for suspecting criminal wrongdoing. United States v. Arvizu, 534 U.S. 266, 273 (2002) (internal quotation marks omitted).

The Court observed that, unlike illegal entry into the United States—which is a crime under 8 U.S.C. section 1325—illegal presence is not a crime. See Martinez-Medina v. Holder, 673 F.3d 1029, 1036 (9th Cir. 2011) (stating that there is no “federal criminal statute making unlawful presence in the United States, alone, a federal crime[.]”). Therefore, “because mere unauthorized presence is not a criminal matter, suspicion of unauthorized presence alone does not give rise to an inference that criminal activity is afoot.” Melendres v. Arpaio, 695 F.3d 990, 1001 (9th Cir. 2012) (quoting Terry v. Ohio, 392 U.S. 1, 30).

Here, the Court noted that Skinner conducted a Terry stop when he confronted Reynaga outside the courtroom, asked him questions regarding his immigration status, and requested identification. At the time Skinner conducted the stop, the only relevant information available to Skinner was Justice of the Peace Hernandez’s statement that he had heard sworn testimony that Reynaga was “not a legal citizen.” Because “detaining individuals based solely on reasonable suspicion or knowledge that a person was unlawfully present in the United States” is not sufficiently “premised on criminality” to justify a stop under Terry,[6] the Ninth Circuit concluded that the single statement conveyed by Hernandez regarding Reynaga’s unlawful status was not a sufficiently “particularized and objective basis” for Skinner to believe that Reynaga was “engaged in, or [] about to engage in, criminal activity[.]”[7] The Court noted that Hernandez did not describe Reynaga’s manner of entry nor provide additional information suggestive of criminal conduct. Because Melendres and Martinez-Medina controlled and Skinner failed to demonstrate that he had a particularized and objective basis for believing criminal activity was afoot, the Ninth Circuit affirmed the District Court’s holding that Skinner violated the Fourth Amendment when he seized plaintiff by Terry-stopping and then arresting him without reasonable suspicion or probable cause, respectively.

The Ninth Circuit also held that under either the proximate or the but-for standard of causation, Justice of the Peace Hernandez was an integral participant in the violation of Reynaga’s constitutional rights. The Court of Appeals explained that Skinner would not have been present at the courthouse or questioned Reynaga but-for Hernandez’s phone call. Moreover, Reynaga’s unlawful stop and arrest were reasonably foreseeable consequences—or, at the very least, within the scope of risk—of Hernandez’s orders.

Regarding the second prong of the qualified immunity analysis, the Ninth Circuit also held that Reynaga’s right to be free from unlawful stops in this context had been clearly established since at least 2012, by which time both Melendres and Martinez-Medina were law of the circuit. The Court explained that Skinner detained Reynaga based solely on knowledge that he was unlawfully present in the United States, and Reynaga’s right to be free from detention absent reasonable suspicion in this context was clearly established at the time of the stop in 2017.

The Ninth Circuit Court of Appeals accordingly affirmed the District Court’s denial of qualified immunity to the defendants.

1. Petitioner’s confession was voluntary because he was read his Miranda warnings, his interview was non-threatening, and there was no evidence that he was easy to manipulate.

Balbuena v. Sullivan, 2020 U.S. App. LEXIS 25987 (9th Cir. Aug. 17, 2020)

Facts: In January 2006, Jose Segura was shot and killed while he was sitting in his car with his wife and two children. Segura’s wife was shot and injured. She reported that several men had surrounded the car, that the man standing nearest to Segura had said that the men wanted revenge for a murder, and that the man then shot Segura. A witness told investigating officers that she had seen Alexander Balbuena and another man with guns just before the shooting; that she heard gun shots; that Balbuena tried to hide a gun under a couch; and that later in the day Balbuena told her that he shot Segura in the forehead. The witness pointed out Balbuena’s apartment. Around 2:00 a.m., after obtaining a warrant, the detectives found Balbuena in his apartment asleep with his pregnant girlfriend and arrested him.

Balbuena was taken to a police station where two detectives questioned him, for approximately ninety minutes, starting at about 2:45 a.m. Balbuena, who was approximately sixteen years old, had no prior arrests. At the beginning of the interview, one of the detectives read Balbuena his rights under Miranda v. Arizona, 384 U.S. 436 (1966). A detective asked, “…are you willing to talk to us about why we were at your house tonight?” Balbuena replied, “Yup. Yup.”

Balbuena initially denied being at the scene of Segura’s murder. The detectives then falsely told Balbuena that they knew he was at the scene, and told him “it’s important for you to be honest with us so if there is some way to help yourself out this is the time to do it.” They also referred to Balbuena’s impending fatherhood, describing Balbuena as “the sixteen year old that’s going to be a father soon.” During the interview, the detectives presented Balbuena with alternative scenarios for his actions. Balbuena acknowledged that he was at the scene of the murder but denied having a gun. The detectives resumed their presentation of alternative scenarios, and called upon Balbuena to be honest. Balbuena continued to deny that he had a gun but admitted he was “right there in front of the car.” A detective then stated, “[R]emember, we are giving you the opportunity to try to work through this so maybe you can be there for your kid in a few years.” Balbuena again admitted being in front of the car and again denied having a gun. The detectives told Balbuena that witnesses saw him shooting a gun and asked what type of gun he had, as “only one of them hit somebody . . . .[s]o it’s important which one you had.” Balbuena then admitted having a .32-caliber handgun, shooting three or four rounds at the car’s front window, and seeing two people in the car.

As the interview proceeded, the detectives referred to the possible sentences Balbuena faced, stated that he would be tried as an adult, implied that he would receive lenient treatment if he spoke honestly and showed “remorse.” After these statements, Balbuena provided details about the incident, including that Balbuena was given the gun by another man and told to shoot, that Balbuena belonged to the RST gang, and that Segura’s murder was gang retaliation for the murder of another RST member.

Before trial, Balbuena moved to suppress his statements as involuntary. The trial court denied the motion. In April 2008, a jury found Balbuena guilty of first-degree murder, attempted murder, and street terrorism. The trial court sentenced Balbuena to eighty-two-years-to-life imprisonment. On direct appeal, Balbuena argued, among other things, that his confession was coerced in violation of his constitutional rights. The California Court of Appeal, considering the totality of the circumstances, affirmed. The Court of Appeal concluded that Balbuena’s statements were voluntary, and found that any error in admitting Balbuena’s statements harmless because the evidence against him was “very strong.” The California Supreme Court denied review.

In January 2011, Balbuena filed a petition for a writ of habeas corpus in federal District Court arguing that his confessed statements were involuntary. The District Court denied Balbuena’s habeas petition. Balbuena appealed.

Held: On appeal, Balbuena contended, among other things, that the state court’s admission of his confession violated his due process rights because his confession was the involuntary product of coercion.

The Ninth Circuit Court of Appeals explained that an involuntary or coerced confession violates a defendant’s right to due process under the Fourteenth Amendment and is inadmissible at trial. Jackson v. Denno, 378 U.S. 368, 385-86 (1964). To determine whether a confession is involuntary, courts must ask “whether a defendant’s will was overborne by the circumstances surrounding the giving of a confession,” considering “the totality of all the surrounding circumstances—both the characteristics of the accused and the details of the interrogation.” Dickerson v. United States, 530 U.S. 428, 434 (2000) (internal quotation marks and citations omitted). “The characteristics of the accused can include the suspect’s age, education, and intelligence as well as a suspect’s prior experience with law enforcement,” Yarborough v. Alvarado, 541 U.S. 652, 668 (2004) (citations omitted), and the suspect’s maturity, Withrow v. Williams, 507 U.S. 680, 693 (1993). The details of the interrogation include its length and location, and whether the suspect was advised of his Miranda rights. Id. at 693-94. Generally, telling a suspect to speak truthfully does not amount to police coercion.[8] Police deception alone also “does not render [a] confession involuntary,”[9] nor is it coercive to recite “potential penalties or sentences,” including the potential penalties for lying to the interviewer, United States v. Haswood, 350 F.3d 1024, 1029 (9th Cir. 2003) (citations omitted).

“The [voluntariness] determination ‘depend[s] upon a weighing of the circumstances of pressure against the power of resistance of the person confessing.’”[10] Thus, the court reviews a confession from a teenager with “special caution.”[11] However, even in the case of a juvenile, indicating that a cooperative attitude would benefit the accused does not render a confession involuntary unless such remarks rise to the level of being “threatening or coercive.”[12]

Applying the highly deferential standards[13] of federal habeas review of state-court rulings in the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”) (See 28 U.S.C. sections 2244(b), 2254(d)), the Ninth Circuit held that the state court’s conclusion that Balbuena’s confession was voluntary was not contrary to or an unreasonable application of federal law. The Court determined that the state court did not unreasonably conclude that Balbuena was sixteen years old and considered his age, experience, and maturity as part of the totality of the circumstances of his confession. The Court stated that the totality of the circumstances established that Balbuena was advised of his Miranda rights. Balbuena contended that the warnings were deficient because even though the detectives advised him that he had a right to an attorney before questioning, they did not advise him that he had the right to have an attorney during questioning. However, the Court noted that the Supreme Court had never found Miranda warnings invalid on this basis. The Court determined that the state court did not unreasonably conclude that the circumstances of the interview, which included the detectives’ limited references to Balbuena’s unborn child, use of “alternative scenarios,” and implied officers of leniency were not coercive. The Court noted, moreover, that a video recording of the interview refuted Balbuena’s argument that those tactics overbore his will and rendered his confession involuntary. Finding the District Court’s rulings otherwise appropriate, the Ninth Circuit Court of Appeals accordingly affirmed.

1. The presence of an unsealed bag of marijuana plainly visible on a vehicle passenger’s person constitutes probable cause to search the passenger’s purse.

People v. McGee, 2020 Cal. App. LEXIS 779 (3rd Dist. July 28, 2020)

Facts: In July 28, 2018, Stockton Police Officers Greg Spears and David Muser initiated a traffic stop of a car after noticing its registration had expired. After the car pulled over, Officer Spears approached the driver’s side of the car and encountered Defendant Tyrone Brendon McGee, while Officer Muser approached the passenger’s side and encountered a female passenger. As they approached the car, both officers noted the scent of unburned marijuana. After Officer Spears asked about the scent, McGee denied having any marijuana in the car. However, Officer Muser saw what appeared to be an unsealed bag of marijuana in the passenger’s cleavage. After Officer Muser said he could see the marijuana, Officer Spears removed McGee from the driver’s seat and informed him they were going to search the car. McGee did not consent to a search but was cooperative. Officer Muser also removed the passenger from the car. After retrieving the bag of marijuana from the passenger, Officer Muser confirmed it was, in fact, unsealed.

While both McGee and the passenger were out of the car, Officer Muser noticed a zipped purse on the passenger floorboard. Officer Muser searched the purse for contraband, and seized a loaded handgun from the purse. Officer Muser read McGee his rights pursuant to Miranda v. Arizona (1966) 384 U.S. 436, and McGee acknowledged he understood his rights. McGee admitted he placed the gun in the passenger’s purse when he noticed the officers behind his car.

McGee moved to suppress evidence of all statements made by him and any evidence seized in the search, contending that because marijuana is now generally legal in California, the scent of unburned marijuana did not indicate McGee or the passenger were breaking the law and thus could not give rise to a probable cause search. The magistrate denied the motion to suppress. After the trial court denied McGee’s renewed suppression motion following the prosecution’s filing of an information, McGee pled no contest to being a felon in possession of a firearm and was sentenced to the low term of 16 months. McGee appealed, challenging the trial court’s denial of his motion to suppress evidence seized during the search of the car and the passenger’s purse.

Held: On appeal, McGee contended that the search incident to arrest and the automobile exception did not justify the warrantless vehicle search performed by Officers Spears and Muser. McGee argued the exception did not apply because the enactment of Proposition 64 legalized possession of small amounts of marijuana for personal use. The People argued that the search of the passenger’s purse was justified by probable cause and thus valid under the automobile exception.

The California Third District Court of Appeal observed that the Fourth Amendment guarantees the right to be free from unreasonable searches and seizures. (U.S. Const., 4th Amend.) Warrantless searches are presumed unreasonable, “subject only to a few specifically established and well-delineated exceptions.” (Katz v. United States (1967) 389 U.S. 347, 357.) The automobile exception provides “police who have probable cause to believe a lawfully stopped vehicle contains evidence of criminal activity or contraband may conduct a warrantless search of any area of the vehicle in which the evidence might be found.” (People v. Evans (2nd Dist. 2011) 200 Cal.App.4th 735, 753; see also Carroll v. United States (1925) 267 U.S. 132, 149.) Once an officer has probable cause to search the vehicle under the automobile exception, they “may conduct a probing search of compartments and containers within the vehicle whose contents are not in plain view.” (United States v. Ross (1982) 456 U.S. 798, 800.) Probable cause to search exists “where the known facts and circumstances are sufficient to warrant a man of reasonable prudence in the belief that contraband or evidence of a crime will be found.” (Ornelas v. United States (1996) 517 U.S. 690, 696.)

Here, the Court observed that when Officers Spears and Muser approached McGee’s car, Officer Muser saw an unsealed bag of marijuana in the passenger’s cleavage. The Court stated that the relevant question was whether there was probable cause to search the passenger’s purse pursuant to the automobile exception.

The Court explained that Health and Safety Code section 11362.3(a)(4) which states that while the possession of up to 28.5 grams of marijuana is now lawful pursuant to Health and Safety Code section 11362.1, it remains unlawful to “[p]ossess an open container or open package of cannabis or cannabis products while driving, operating, or riding in the passenger seat or compartment of a motor vehicle.” (Italics added.) Officer Muser witnessed the passenger in possession of an unsealed container of marijuana in violation of Section 11362.3(a)(4). The Court stated that the presence of this contraband provided probable cause to believe the passenger possessed other open containers. (See People v. Souza (6h Dist. 1993) 15 Cal.App.4th 1646, 1653 [“an open container within plain view provides probable cause to believe that other open containers may be found in the vehicle”].) The Court concluded that Officer Muser therefore had probable cause to search the passenger and her purse for further evidence of contraband. Officer Muser’s search of the purse, as a compartment or container within the vehicle whose contents were not in plain view, was therefore justified under the automobile exception. Accordingly, the Third District affirmed.

1. Once in custody, an arrestee is vulnerable, dependent, subject to the control of the officer and unable to attend to his or her own medical needs; due to this special relationship, the officer owes a duty of reasonable care to the arrestee.

Fausto v. Dep’t of the Cal. Highway Patrol, 2020 Cal. App. LEXIS 798 (1st Dist. Aug. 21, 2020)

Facts: In March 2015, CHP Officers Michael Diehl and his partner stopped a vehicle at about 4 a.m. for driving with fog lights but no headlights illuminated. The officers learned the driver, John Anthony Cornejo, was unlicensed. The partner called for backup, as there were three passengers in the vehicle in addition to Cornejo. CHP Officers Cosimo Bruno and David Hazelwood, Jr. were among the officers who responded to the scene. Diehl detected the odor of alcohol coming from the car. Diehl conducted a pat-down search at the back of Cornejo’s car, after which Cornejo moved his right hand in front of his mouth. Diehl asked if Cornejo had anything in his mouth and when Cornejo started to answer, Diehl observed a “chewing motion.” Cornejo said it was gum. Diehl asked Cornejo to spit out what was in his mouth. Diehl later testified that that he told the other officers on the scene he believed Cornejo had swallowed a controlled substance.[14]

Cornejo became very nervous, backing away from Diehl while raising his arms in front of his face and “swatting” at Diehl, then turning and starting to run. According to Diehl, Cornejo had had his back to Officers Hazelwood and Bruno, who were about 20 feet away. Diehl and other officers grabbed Cornejo and brought him to the ground as Cornejo yelled that he only had gum. The officers took Cornejo into custody.

Cornejo said he had decided to swallow his gum. Diehl asked if Cornejo had swallowed any drugs, and Cornejo repeated that it was only gum. Diehl explained to Cornejo that if he “made a mistake and swallowed drugs,” Diehl “would need to call for medical staff to ensure his health would not be affected.” A search of Cornejo’s vehicle revealed a methamphetamine pipe and Brillo pad, which Diehl testified is commonly used by crack cocaine users. Cornejo declined the officers’ offers of medical attention.

Hazelwood and Bruno took Cornejo to a detention facility. At the gate where the Alameda County sheriffs receive arrestees, Cornejo was asked whether he had consumed drugs or alcohol. Hazelwood informed the deputy sheriff that Cornejo had swallowed something, and that Cornejo had said it was gum. Cornejo had not exhibited any symptoms of drug intoxication to this point.

Bruno drafted the documents related to the arrest and Hazelwood, as field training officer, reviewed them.[15] One of these documents was the declaration of probable cause, which stated in part: “Officer Hazelwood and I observed Cornejo swat his right hand at his mouth and appeared to place what looked like a plastic baggie in his mouth. … Officer Diehl instructed Cornejo to spit out the bag, however, he refused, claiming it was only gum….” The arrest report Bruno drafted did not mention a bag or baggie.

According to the testimony of the deputy sheriff intake officer on duty at the detention facility, the CHP officers did not tell him that Cornejo swallowed a plastic baggie or that they believed he swallowed a controlled substance. If they had, the intake officer would have summoned a nurse. The intake officer also testified that Cornejo appeared calm and lucid, not showing any signs of medical distress.

Another deputy sheriff at the facility checked on Cornejo multiple times and asked if Cornejo needed medical attention, but Cornejo declined each offer. However, Cornejo was later found on a holding cell floor, shaking and with foam in his mouth. He was taken by the paramedics and died at a hospital. A medical examiner concluded that Cornejo died of acute methamphetamine intoxication.

Plaintiffs Yolanda Frausto and Norman Cornejo, parents of John Anthony, sued the CHP and individual CHP officers in state court for negligence, wrongful death, and other claims. The case was removed to federal court after the complaint was amended to include a federal claim for violation of civil rights under 42 U.S.C. section 1983. The federal court granted the CHP defendants’ motion for summary judgment on the federal claim and declined to exercise jurisdiction over the state claims.[16]

Plaintiffs returned to state court with a complaint against the CHP and officers. The case ultimately went to trial on the negligence claim in the fourth amended complaint. The jury returned a special verdict against defendants in the amount of $827,544.00, allocating comparative fault 35 percent to Officer Diehl, 13 percent to Officer Bruno, and 30 percent to Officer Hazelwood, and 22 percent to Cornejo. After judgment was entered, the defendants unsuccessfully moved for judgment notwithstanding the verdict. Defendants appealed.

Held: The California First District Court of Appeal noted that “[p]ublic employees are liable for injuries resulting from their acts or omissions to the same extent as private persons, except where otherwise exempted or immunized by law. ([Government Code section] 820.) Public entities are correspondingly liable for the negligent acts or omissions of their employees acting within the scope of their employment except where either the employee or the public entity is immunized from liability by statute. ([Government Code section] 815.2.) ….” (Adams v. City of Fremont (1st Dist. 1998) 68 Cal.App.4th 243, 264.)

Defendants argued that no statute imposed a duty on officers to obtain medical care for an arrestee; no special relationship was created because the officers took no affirmative action increasing the risk to Cornejo, who created his own peril by swallowing the methamphetamine, and Cornejo did not detrimentally rely upon the officers for assistance; and because there was no basis for the officers to override Cornejo’s constitutional right to refuse medical treatment. Plaintiffs argued that once Cornejo was arrested, a special relationship was created that gave rise to a duty of care.

The First District observed that “[a]s a rule, one has no duty to come to the aid of another.” (Williams v. State of California (1983) 34 Cal.3d 18, 23), and that “law enforcement officers, like other members of the public, generally do not have a legal duty to come to the aid of another person … .” (Lugtu v. California Highway Patrol, supra, 26 Cal.4th at p. 717.) However, liability may be imposed if an officer voluntarily assumes a duty to provide a particular level of protection, and then fails to do so (see Williams, at pp. 23–24 & fn. 3), or if an officer undertakes affirmative acts that increase the risk of harm to the plaintiff.[17]

In Giraldo v. Department of Corrections & Rehabilitation (1st Dist. 2008) 168 Cal.App.4th 231, the First District observed, “It has been observed that a typical setting for the recognition of a special relationship is where ‘the plaintiff is particularly vulnerable and dependent upon the defendant who, correspondingly, has some control over the plaintiff’s welfare.’ (Kockelman v. Segal ([6th Dist.] 1998) 61 Cal.App.4th 491, 499 [], citing Prosser & Keeton, Torts (5th ed.1984) [Section] 56, p. 374.)” (Giraldo, at pp. 245–246.) “Prisoners are vulnerable. And dependent. Moreover, the relationship between them is protective by nature, such that the jailer has control over the prisoner, who is deprived of the normal opportunity to protect himself from harm inflicted by others. This, we conclude, is the epitome of a special relationship, imposing a duty of care on a jailer owed to a prisoner.” (Id. at pp. 250–251.)

The Ninth Circuit applied Giraldo’s reasoning to the arrest context, predicting that the California Supreme Court would conclude a “similar relationship exists between a law enforcement officer and an arrestee in his custody in need of immediate medical attention.” (Winger v. City of Garden Grove (9th Cir. Mar. 18, 2020) 806 Fed. Appx. 544.) Winger reversed a summary judgment in favor of the police department, finding there was a genuine factual dispute as to whether officers breached their duty of reasonable care to an arrestee by failing to take her to a hospital instead of jail, despite her refusal of medical care, where there was evidence from which a reasonable jury could have concluded the officers should have recognized the arrestee was displaying symptoms of a stroke, required immediate medical attention and was not capable of refusing medical care. (Id. at p. 546.)

Here, the First District agreed with Winger that the same factors discussed in Giraldo applied to the relationship between a law enforcement officer and arrestee. The Court thus declared that, once in custody, an arrestee is vulnerable, dependent, subject to the control of the officer and unable to attend to his or her own medical needs. The Court held that, because of this special relationship, the officer owes a duty of reasonable care to the arrestee. The Court explained that once Cornejo was in custody, he was subject to the control of the officers and no longer in a position to attend to his own medical needs. The Court concluded that when the CHP officers took Cornejo into custody, regardless of Cornejo’s role in creating his own situation, the officers had a duty to use reasonable care in responding to the situation. Whether the officers should have recognized a need for immediate medical attention despite the absence of symptoms of drug use and Cornejo’s disclaimers and rejection of offers of medical assistance was a question of fact, as was the question whether the duty of care was satisfied by taking Cornejo to jail rather than the hospital. These were questions for the jury, not legal questions delineating the scope of the duty.

Moreover, the Court found that, to properly evaluate the officers’ conduct (and Cornejo’s, for apportionment of comparative fault), it was relevant for the jury to understand that Cornejo had an incentive to lie about what he ingested and decline medical care in order to avoid admitting the crime of possession of a controlled substance, and to assess whether and how a reasonable officer would have taken this into account in responding to the situation.

The First District Court of Appeal accordingly affirmed.

1. In lawsuit alleging pre-towing notice was inadequate under Due Process Clause, District Court did not apply appropriate “reasonably calculated” standard when deciding whether method of notice satisfied due process.

Grimm v. City of Portland, 2020 U.S. App. LEXIS 26672 (9th Cir. Aug. 21, 2020)

Facts: In December 2017, the City of Portland (the “City”) left six citations on Andrew Grimm’s illegally parked car over the course of seven days. On the seventh day, the officer issuing Grimm’s sixth and final citation also placed a “separate red tow slip” on Grimm’s windshield. The slip had the word “TOW” on one side and an order to tow the vehicle on the other. The officer then contacted Retriever Towing, which towed Grimm’s car at some point before Grimm learned that his car had been towed when he looked for it three days later.

Grimm, an attorney, filed a pro se lawsuit against Retriever Towing, the City, and the City officers who issued his citations. Grimm alleged that the pre-towing notice provided was inadequate under the Fourteenth Amendment’s Due Process Clause. Retriever Towing filed a motion to dismiss. The District Court dismissed Grimm’s case against Retriever Towing, relying mainly on a 2017 unpublished disposition from the Ninth Circuit Court of Appeals, Sackman v. City of Los Angeles, 677 F. App’x 365, 366 (9th Cir. 2017). That case affirmed the application of the balancing test set forth in Mathews v. Eldridge, 424 U.S. 319 (1976), to a towing notice case. Grimm ultimately settled his suit against Retriever Towing.

The City then filed a motion for summary judgment, incorporating arguments from Retriever Towing’s motion to dismiss. The District Court granted the City’s motion, rejecting Grimm’s argument that Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306 (1950) was the applicable legal standard for his adequacy of notice claim. Grimm’s appealed.

Held: On appeal, Grimm argued that (1) pre-towing notice was required; (2) the District Court applied the incorrect legal standard when considering Grimm’s adequacy of notice claim; and (3) the pre-towing notice given was inadequate, mainly because the City was obligated to attempt other forms of notice when the car was not moved and the citations remained on the windshield.

The Ninth Circuit Court of Appeals first reiterated a settled principle: Due process requires that individualized notice be given before an illegally parked car is towed unless the state has a “strong justification” for not doing so. Clement v. City of Glendale, 518 F.3d 1090, 1094 (9th Cir. 2008). Thus, pre-towing notice is presumptively required.

The Court found that the District Court erred by relying on the unpublished disposition in Sackman. The Court held that Mullane, rather than Mathews, sets forth the appropriate standard for analyzing the adequacy of a pre-towing notice claim. Under Mullane, the government is required to provide notice reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections. (Mullane, supra, at p.314-15.) The Court stated that Ninth Circuit caselaw supported the understanding that Mathews applies when determining whether individualized pre-towing notice is required at all, not what form of notice is required, i.e. the adequacy of notice. Grimm’s central claim was that the type of pre-towing notice the City provided (the red “TOW” slip) was inadequate. He did not claim that there was no notice. The Ninth Circuit Court of Appeals accordingly reversed the District Court’s summary judgment in favor of the City.

Because the District Court applied an incorrect legal standard in determining whether the pre-towing notice was sufficient, and the record was not fully developed, the Ninth Circuit remanded the case to the District Court with instructions to consider, among other questions: (1) Is putting citations on a car that do not explicitly warn that the car will be towed reasonably calculated to give notice of a tow to the owner?; (2) Did the red tow slip placed on plaintiff’s car shortly before the tow provide adequate notice?; and (3) Was the City required under Jones v. Flowers, 547 U.S. 220 (2006) to provide supplemental notice if it had reason to suspect that the notice provided by leaving citations and the tow slip on Grimm’s windshield was ineffective?

1. Workers’ compensation benefits are plaintiffs’ exclusive remedy for the injuries they sustained in responding to peace officer’s request to provide assistance.

Gund v. Cnty. of Trinity, 2020 Cal. LEXIS 5542 (Aug. 27, 2020)

Facts: Under Labor Code section 3366(a), when members of the public engage in “active law enforcement service” upon a peace officer’s request to further some public safety purpose, those members of the public are treated as employees eligible for workers’ compensation benefits for injuries that consequently occur. However, workers’ compensation then becomes such an individual’s exclusive remedy for injuries under California law (Labor Code section 3602(a); Shoemaker v. Myers (1990) 52 Cal.3d 1, 16.) Workers’ compensation benefits are narrower in scope than the range of damages available in tort claims.

In March 2011, the California Highway Patrol (“CHP”) received a phone call from a female caller named Kristine. Kristine whispered, “Help me,” and said she lived at the end of the Kettenpom airstrip. Kettenpom is in Trinity County, a mountainous region of 3,200 square miles. The CHP dispatcher relayed the content of Kristine’s call to the Trinity County Sheriff’s Department. The Sheriff’s Department is located almost 100 miles away from Kettenpom. The CHP dispatcher explained she was reluctant to call Kristine back in case Kristine was trying to avoid being overheard. Twice, a Trinity County dispatcher attempted to contact Kristine, but the calls went straight to voicemail. The county dispatcher relayed this information to Trinity County Sheriff’s Corporal Ronald Whitman.

Corporal Whitman knew that Norma and James Gund lived in the vicinity of the Kettenpom airstrip. While Corporal Whitman was headed towards Kristine’s home but still some distance away, he called Norma Gund and explained that her neighbor Kristine had called 911. Corporal Whitman asked Mrs. Gund if she would go check on Kristine, because the Gunds were much closer to Kristine’s home and Corporal Whitman was still hours away. After Mrs. Gund agreed, Corporal Whitman asked if Mr. Gund was home, and Mrs. Gund said no. Corporal Whitman instructed Mrs. Gund not to go to Kristine’s home by herself. Mrs. Gund asked what Kristine said on the call, and Corporal Whitman responded that Kristine said, “Help me.” Mrs. Gund then asked, “Are you sure? Is that all she said?” Corporal Whitman responded, “She said two words, ‘Help me.’” Mrs. Gund told Corporal Whitman that Mr. Gund had just arrived home, and Corporal Whitman said, “Good.” Corporal Whitman did not tell Mrs. Gund that Kristine had whispered on the phone, that the CHP dispatcher believed she had been trying to call secretly, or that the county dispatcher’s return calls to Kristine went straight to voicemail.

Mrs. Gund confirmed for Corporal Whitman that she’d been to Kristine’s property before, to help the previous owner with snow and fallen trees. Corporal Whitman mentioned the impending arrival of a major storm, which “must be what this is all about.” Corporal Whitman then asked if Mrs. Gund had ever met Kristine’s boyfriend and if he seemed violent. Mrs. Gund confirmed that she had met Kristine’s boyfriend. In response to whether he ever seemed violent, Mrs. Gund indicated she “didn’t know. He seemed real mellow.” Corporal Whitman gave Mrs. Gund his cell phone number and instructed her to call him as soon as she and her husband had checked on Kristine. Believing the emergency to be weather related, the Gunds drove to Kristine’s home. They speculated that maybe a tree had fallen or that Kristine, a young city girl, was having trouble with her wood burning stove.

After arriving at Kristine’s home, the Gunds were violently attacked with a knife by the man who had just murdered Kristine and her boyfriend. The Gunds separately managed to escape with severe wounds.

The Gunds filed suit against Corporal Whitman and Trinity County (the “County”). Their amended complaint alleged causes of action for: liability for the act or omission of a public employee; vicarious liability for the act or omission of a public employee; misrepresentation by a public employee, with actual malice; and vicarious liability for misrepresentation by a public employee, with actual malice. The Gunds argued that Corporal Whitman sought to secure their assistance by falsely assuring them that Kristine’s call was probably weather related and knowingly withholding the information that Kristine whispered, that the CHP dispatcher thought Kristine was calling secretly, and that the county dispatcher’s return calls went straight to voicemail.

The County and Corporal Whitman moved for summary judgment, contending that workers’ compensation was the Gunds’ exclusive remedy because they sustained their injuries while engaged in active law enforcement service under Section 3366. The Gunds argued that Section 3366 did not apply because, given Corporal Whitman’s alleged misrepresentations, they did not understand themselves to be engaged in “active law enforcement service” when they complied with his request, nor would a reasonable person have understood this to qualify under that standard. The trial court granted the County and Corporal Whitman’s motion for summary judgment, and a Court of Appeal affirmed, concluding that Section 3366 applied.

Held: The Supreme Court of California granted review on its own motion in order to determine the scope of workers’ compensation coverage available to the Gunds, observing that the availability of such coverage would constrain the Gunds in seeking other redress for their injuries. This inquiry hinged on whether the Gunds engaged in “active law enforcement” under Section 3366, even assuming Corporal Whitman’s alleged misrepresentations.

The Court explained that workers’ compensation benefits are available for an employee’s injury “arising out of and in the course of the employment” where “the injury is proximately caused by the employment.”^[18] Civilians who volunteer to assist law enforcement only become “employee[s]” if they fall within the scope of Section 3366’s coverage.^[19] In this context, under Section 3602(a), workers’ compensation is “the sole and exclusive remedy of the employee.”

Section 3366(a) provides, in part: “For the purposes of this division, each person engaged in the performance of active law enforcement service as part of the posse comitatus or power of the county, and each person . . . engaged in assisting any peace officer in active law enforcement service at the request of such peace officer, is deemed to be an employee of the public entity that he or she is serving or assisting in the enforcement of the law, and is entitled to receive compensation from the public entity in accordance with the provisions of this division.” (Italics added.)

In determining the meaning of “active law enforcement service” under Section 3366, the Supreme Court first observed that the phrase “active law enforcement service” was not defined by Section 3366, nor elsewhere in any other related statutory provision. The Gunds argued that the phrase only signified a narrow subset of policing tasks: the type of active investigation and suppression of crime entailing risk of death or serious injury while providing protection to the public. The defendants asserted that “active law enforcement service” identified the main duties of a police officer, which was a broader scope than that suggested by the Gunds.

The Supreme Court concluded that the phrase “active law enforcement service,” encompassed the duties of peace officers directly concerned with enforcing the laws, investigating and preventing criminal activity, and protecting the public. The Court found that the statutory text, legislative history, and their associated court cases supported the interpretation that “active law enforcement service” was best understood as capacious (though not entirely open ended) to include these core public protection, enforcement, and crime-fighting functions. Moreover, “active law enforcement” assuredly included responses to 911 emergency calls for assistance of an unknown nature — which possibly include responding to criminal activity.

The Supreme Court explained here that the Gunds responded to a 911 call for assistance of an unknown nature, so they were properly deemed employees under Section 3366. The Gunds acted at Corporal Whitman’s request. Corporal Whitman’s request was for the Gunds to respond to a 911 call for help of an unspecified nature. The Court noted that responding to a 911 call for unspecified help serves a vital public protection purpose. Corporal Whitman explained that Kristine called 911 seeking help. Because he was far away, Corporal Whitman sought the Gunds’ help to check on Kristine at her home. The Court noted that Corporal Whitman or one of his law enforcement colleagues would ordinarily provide such a response. Accordingly, the Court concluded that the requested service here fell squarely within the purview of the Court’s interpretation of “active law enforcement service” under Section 3366.

The Court added that the specific details of the exchange between Corporal Whitman and Mrs. Gund did not alter the core nature of his request that the Gunds respond to a 911 call for unspecified help. After requesting Mrs. Gund’s assistance, Corporal Whitman made clear he did not know the reason for Kristine’s call for help. While Corporal Whitman suggested the matter might be regarding the impending big storm, he followed by asking Mrs. Gund if she knew Kristine’s boyfriend and if he ever seemed violent. Despite Corporal Whitman’s assessment that there was likely a weather emergency and that it was “probably no big deal,” the Court maintained that his general request was still one for a response to a 911 call for help of an uncertain nature — a typical law enforcement task often associated with investigation of possible criminal activity, response to such activity, or protection of the public.

The Court also explained that the Gunds’ allegation that a request for assistance contained a misrepresentation, without more, did not preclude application of Section 3366 and the exclusivity provision of Labor Code section 3602(a). The Court stated that misrepresentations did not change the Court’s construction of “active law enforcement service,” which considered the type of task rather than an individual’s subjective understanding of risk.

The Supreme Court thus concluded that Section 3366 applied here, and that workers’ compensation benefits were the Gunds’ exclusive state law remedy pursuant to Labor Code section 3602(a). The Court accordingly affirmed.

Justice Groban dissented, joined by Justice Chin. The Dissent agreed that Section 3366 applied when a civilian agrees to perform active law enforcement service at a peace officer’s request but disagreed that Corporal Whitman asked the Gunds to perform an active law enforcement task. The Dissent maintained that it was objectively reasonable for the Gunds to believe that Corporal Whitman asked them to render neighborly assistance with a relatively risk-free weather-related problem, because Corporal Whitman told the Gunds that the 911 call “must be” weather related and was “probably no big deal.” Moreover, the Dissent’s view was that Corporal Whitman omitted important details from the 911 call that would have made the Gunds aware of the potential danger they faced and that they were being asked to assume the particularly hazardous functions and risks of a law enforcement officer. More broadly, the Dissent stated that the words, facts, and context of the peace officer’s request matters. The Dissent would therefore hold that the Gunds were not subject to Section 3366 and would reverse.

For a more detailed discussion of this case, please see Client Alert Vol. 35, No. 28, available at www.jones-mayer.com.

FIREARMS

Ninth Circuit finds that California Government Code section 32310, which bans possession of large-capacity magazines (“LCMs”), violates the Second Amendment.

Duncan v. Becerra, 2020 U.S. App. LEXIS 25836 (9th Cir. Aug. 14, 2020)

Facts: In response to tragic and highly publicized mass shootings, the state of California in 2016 passed legislation which amended Penal Code section 32310 to enact a wholesale ban on the possession of LCMs by “any person in this state who possesses any large-capacity magazine, regardless of the date the magazine was acquired” in the state of California. (Section 32310(c).) Possession may constitute a misdemeanor offense punishable by up to a year’s worth of jail time.^[20] The law also requires citizens who own LCMs to remove the magazines from the state, sell them to a firearms dealer, or surrender them to law enforcement for destruction.^[21]

Millions of Americans across the country own LCMs. One estimate based in part on government data showed that from 1990 to 2015, civilians possessed about 115 million LCMs out of a total of 230 million magazines in circulation. LCMs may be lawfully possessed in 41 states and under federal law. LCMs are commonly used in many handguns, which the Supreme Court has recognized as the “quintessential self-defense weapon.” District of Columbia v. Heller, 554 U.S. 570, 629 (2008).^[22]

Virginia Duncan and other plaintiffs, who lawfully acquired LCMs or represented those who did so (collectively, the “Owners”), brought a constitutional challenge to Section 32310. Two days before the possession ban was to take effect, the District Court issued a preliminary injunction enjoining enforcement of the law.^[23] On appeal, the Ninth Circuit Court of Appeals affirmed.^[24] While the interlocutory appeal was pending, the Owners filed a motion for summary judgment. The District Court issued an order granting the Owners’ motion,^[25] concluding in part that Section 32310 violates the Second Amendment.

On the Second Amendment claim, the District Court based its decision on three independent holdings. First, it concluded that Section 32310 did not satisfy the “simple Heller test,” which queries whether the firearm or firearm component is commonly owned by law-abiding citizens for lawful purposes. The District Court found that “[m]illions of ammunition magazines able to hold more than 10 rounds are in common use by law-abiding responsible citizens for lawful uses like self-defense.” Second, the District Court held that Section 32310 fails under strict scrutiny for lack of narrow tailoring. The District Court found Section 32310’s complete prohibition on possession by nearly everyone, everywhere, to be the hallmark of a sloppy fit. Finally, the District Court held that, even though it believed intermediate scrutiny was the wrong standard to apply, Section 32310 still failed under this more lenient standard because the statute was not a reasonable fit to the important public safety interests that it was enacted to serve. Based on these conclusions, the District Court found no genuine dispute of material fact that Section 32310 violated the United States Constitution and ordered summary judgment for the Owners. California appealed.

Held: The Ninth Circuit Court of Appeals explained that the Second Amendment provides: “A well-regulated Militia, being necessary to the security of a free state, the right of the people to keep and bear Arms, shall not be infringed.” U.S. Const. amend. II. In 2008, the Supreme Court held that the Second Amendment protects “an individual right to keep and bear arms.” Heller, 554 U.S. at 595. The Court later incorporated the Second Amendment to the states through the Fourteenth Amendment’s Due Process Clause. McDonald v. City of Chicago, 561 U.S. 742, 767 (2010). A citizen’s right to self-defense, the McDonald Supreme Court held, is “deeply rooted in this Nation’s history and tradition,” and “fundamental to our scheme of ordered liberty.” Id. at 767-78. The Ninth Circuit here added that “history, text, and tradition underscore that the right to armed self-defense is fundamental.”

The Supreme Court in Heller found the “inherent right to self-defense” to be a critical component of the Second Amendment and that the virtual handgun ban at issue in Heller was constitutionally infirm because the handgun is the “quintessential self-defense weapon.” Id. at 628-29. The Court similarly found the disassembly or trigger-lock requirement unconstitutional because it “makes it impossible for citizens to use [arms] for the core lawful purpose of self-defense.” Id. at 630. However, the Ninth Circuit observed, weapons that are “dangerous and unusual” fall outside the Second Amendment’s protection. Id. at 627.

The Court of Appeals explained that the standard within the Ninth Circuit assesses the constitutionality of firearm regulations under a two-prong test. This inquiry “(1) asks whether the challenged law burdens conduct protected by the Second Amendment and (2) if so, directs courts to apply an appropriate level of scrutiny.” United States v. Chovan, 735 F.3d 1127, 1136 (9th Cir. 2013) (internal citations omitted).

The Ninth Circuit held that under the first prong of the test, Section 32310 burdened protected conduct. First, the Court held that firearm magazines are protected arms under the Second Amendment. Second, the Court held that LCMs are commonly owned and typically used for lawful purposes and are not “unusual arms” that would fall outside the scope of the Second Amendment. Third, the Court held that LCM prohibitions are not longstanding regulations and do not enjoy a presumption of lawfulness. Fourth, the Court determined that there was no persuasive historical evidence in the record showing LCM possession fell outside the ambit of Second Amendment protection.

Turning next to second prong of the inquiry, the Court of Appeals held that strict scrutiny was the appropriate standard to apply. First, the Court held that Section 32310 struck at the core right of law-abiding citizens to self-defend by banning LCM possession within the home. Second, the Court held that Section 32310’s near-categorical ban of LCMs substantially burdened core Second Amendment rights. Third, the Court held that decisions in other circuits were distinguishable. Fourth, the Court held that the Ninth Circuit’s decision in Fyock v. City of Sunnyvale, 779 F.3d 991 (9th Cir. 2015), did not obligate the Court to apply intermediate scrutiny.

The Court held that Section 32310 did not survive strict scrutiny review. The Court held that the state interests advanced here were compelling: preventing and mitigating gun violence. Second, the Court found that Section 32310 was not narrowly tailored to achieve the compelling state interests it purported to serve because the state’s chosen method — a statewide blanket ban on possession everywhere and for nearly everyone — was not the least restrictive means of achieving the compelling interests.

The Ninth Circuit declared that even if intermediate scrutiny were to apply, Section 32310 would still fail; while the interests expressed by the state qualified as “important,” the means chosen to advance those interests were not substantially related to their service.

The Ninth Circuit Court of Appeals accordingly affirmed the District Court’s summary judgment in favor of the Owners and held that Section 32310 violated the Second Amendment.

For a more detailed discussion of this case, please see Client Alert Vol. 35, No. 26, available at www.jones-mayer.com.

EMPLOYMENT

1. Plaintiff did not establish that Defendant’s reasons for terminating his employment were pretextual because Defendant provided evidence of legitimate, nonretaliatory explanations for its action.

Vincent v. City of Cal. City, 2020 U.S. App. LEXIS 25554 (9th Cir. Aug. 12, 2020)

Facts: In March 2017, the City of California City (“City”) extended a conditional offer of employment for the position of Fire Chief to Plaintiff Justin Vincent, subject to one year of probation. Vincent was sworn in as the City’s Fire Chief in May 2017. Vincent was allegedly involved in a number of incidents, including “gossiping” with City employees about the mayor’s alleged affair and Vincent’s public confrontation with two City residents in city hall. 

In December 2017, Vincent was given a termination letter which stated he was being terminated due to his failure to satisfactorily complete probation. He filed suit in federal District Court against the City for unlawful retaliation under California Labor Code section 1102.5. The City moved for summary judgment, which the District Court granted. Vincent appealed.

Held: The Ninth Circuit Court of Appeals found that Vincent had not established that the City’s reasons for terminating his employment were pretextual as Vincent contended. The City provided evidence of “legitimate, nonretaliatory explanation[s]” for its action, Hawkins v. City of Los Angeles, 40 Cal. App. 5th 384, 252 Cal. Rptr. 3d 849, 855 (Cal. App. 2019), including Vincent’s “gossiping” with city employees about the mayor’s alleged affair and Vincent’s public confrontation with two city residents in city hall. Accordingly, Vincent bore the burden of demonstrating that the City’s explanations were flawed by “such weaknesses, implausibilities, inconsistencies, incoherencies, or contradictions . . . that a reasonable factfinder could rationally find [the explanations] unworthy of credence.” Id. at 856-57.

Vincent asserted that the City’s explanation based on “gossiping” was pretextual because the mayor’s alleged affair was common knowledge. The Court of Appeals explained, however, that even if the affair was well-known, Vincent had been instructed by the City Manager to “stop spreading the rumor.” Vincent nevertheless discussed the rumor with his staff and others, and another employee reported that Vincent discussed the rumor loudly in city hall.

Vincent asserted that the City’s next explanation, that Vincent was terminated because two city residents filed a complaint with the city manager after having a confrontation with Vincent in city hall, was pretextual because part of their complaint concerned Vincent’s allegations that one of the residents had attempted to bribe Vincent. However, the Court noted that the record established that the complaint set forth several allegations, including that Vincent had threatened to give false information to the residents’ insurance company and that Vincent, in uniform and on duty, went to a woman’s home and publicly demanded that she stop discussing Vincent’s affairs.

The Court found that because no evidence suggested that the City’s termination decision based on Vincent’s “gossiping” and his confrontation with two residents was pretextual, the City was entitled to summary judgment. The Ninth Circuit accordingly affirmed.

1. Fair Employment and Housing Act discrimination claims cannot survive summary judgment without evidence disputing credible showing of innocent motive.

Arnold v. Dignity Health, 53 Cal. App. 5th 412 (3rd Dist. 2020)

Facts: Virginia M. Arnold, an African-American woman, was either 55 or 56 years old when she was hired to work by Dignity Health (“Dignity”) as a medical assistant in 2003. In August 2008, Arnold received a warning, included on her performance evaluation, for failing to wipe a patient’s identifying information off a urine cup. In October 2011, Roxanne Slaugh, Arnold’s supervisor, told her she was not permitted to work off the clock, and instructed Arnold regarding the process of marking a task “done” only after the task was actually completed. In June 2012, Slaugh issued Arnold a warning for inappropriate conduct for acting in a disruptive, disrespectful, and aggressive manner toward a coworker. In September 2012, Slaugh issued Arnold a “final” warning and a three-day suspension for Arnold’s alleged failure to follow the clinic process for addressing scheduling errors or concerns by alerting Slaugh as she had been instructed.

In December 2012 Arnold filed a grievance contending she felt harassed by Slaugh and was not being treated equally. The grievance did not state specific instances of harassing or discriminatory conduct. No documented conclusions resulted from this filing. In a matter perhaps unrelated to the grievance, Arnold would later allege that she had complained at some point to Slaugh that two other African-American employees with whom Arnold was associated had been mistreated.

In June 2013, Denise Boroughs-Fitch replaced Slaugh as Arnold’s supervisor. In July 2013, Boroughs-Fitch and Tiffany Tidwell, senior employee and labor relations consultant, met with Arnold concerning a urine cup found in the trash that allegedly still contained patient health information because Arnold did not wipe the urine cup clean. They also found that Arnold was not willing to take responsibility for her actions and was not being honest in the investigation because she blamed her coworker for the incident.

Because Arnold was on a final warning and had previously been disciplined regarding patient privacy, Tidwell and Boroughs-Fitch deemed termination the appropriate next step. Boroughs-Fitch set forth the reasons for Arnold’s termination in a letter stating Arnold’s employment was being terminated for her (1) failure to safeguard personal health information, a HIPAA violation, (2) display of inappropriate materials in the workplace, (3) careless performance of duties, (4) failure to communicate honestly and be truthful during the course of the investigation, and (5) failure to take responsibility for her actions. The letter also stated that while the current violations independently warranted termination, Boroughs-Fitch also considered the prior warnings and suspension.

Shelley Noyes was the executive director at Arnold’s workplace during this period. According to Arnold, there were three instances in which Noyes commented on her age, expressing surprise at Arnold’s age and the fact that Arnold had not retired. The first occurred sometime between 2011 and 2013. Noyes had learned that it was recently Arnold’s birthday, and she said to Arnold, “Oh, I never knew you were that old.” Next Noyes said, “Oh, how come you haven’t retired?” Then Noyes and Arnold discussed working into their eighties. Arnold also recalled that Slaugh made three comments about her age, and also inquired why Arnold had not retired.

After her employment was terminated, Arnold filed a complaint alleging, among others, a cause of action against Dignity for discrimination in violation of the Fair Employment and Housing Act (“FEHA”) based on her age and association with African-Americans.

The trial court granted Dignity’s motion for summary judgment. The trial court concluded Dignity provided evidence of legitimate, non-discriminatory reasons for Arnold’s termination and, in rebuttal, Arnold failed to offer any evidence that defendants’ actions were discriminatory, harassing, or retaliatory. Arnold appealed the grant of summary judgment.

Held: The California Third District Court of Appeal explained that FEHA makes it unlawful for an employer “‘because of the race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, marital status, sex, age, or sexual orientation of any person, … to discriminate against the person … in terms, conditions, or privileges of employment.’” (Horsford v. Board of Trustees of California State University (5th Dist. 2005) 132 Cal.App.4th 359, 373, quoting Government Code section 12940(a).) Because of the similarity between state and federal employment discrimination laws, California courts look to pertinent federal precedent when applying California statutes. (Guz v. Bechtel Nat. Inc. (2000) 24 Cal.4th 317, 354.)

Arnold contended that the trial court erred by concluding she failed to raise a triable issue of material fact regarding pretext or regarding the truth of defendants’ stated reasons for terminating her employment. She asserted that she presented evidence showing defendants’ facially valid reasons for termination were unworthy of credence, and argued that she presented substantial evidence of age and association discrimination, including that her supervisors repeatedly “verbalized age discriminatory language with an intimidating tone,” did not respond to her complaint of discrimination, and did not respond to her complaints regarding racially prejudiced behavior toward other African-American employees.

The Court of Appeal explained that, in a FEHA discrimination claim, the discrimination at issue must be a substantial motivating factor in the adverse employment decision. (Harris v. City of Santa Monica (2013) 56 Cal.4th 203, 232.) In other words, “there must be evidence supporting a rational inference that intentional discrimination, on grounds prohibited by the statute, was the true cause of the employer’s actions.” (Guz, at p.361.)

Arnold contended that her claim for age discrimination was supported by the comments made by Noyes and Slaugh regarding her age and Dignity’s failure to appropriately respond to her human resources complaint regarding discrimination. Rejecting this contention, the Court explained that Arnold presented no evidence that either Noyes or Slaugh was materially involved in the decision to terminate her employment. At the time Arnold was terminated, Slaugh was not Arnold’s supervisor, and even Arnold acknowledged, “Noyes is not in the chain of command regarding my discipline. Noyes was not in the [human resources] department and she was not part of the group that was evaluating me.” Thus, any comments made by Noyes or Slaugh regarding Arnold’s age did not support the conclusion that Arnold was terminated based on discriminatory animus. (Accord King v. United Parcel Service, Inc. (3rd Dist. 2007) 152 Cal.App.4th 426, 433-434 [decision maker must be affected by bias].)

Moreover, the Court found that even if Noyes were involved in the decision to terminate Arnold’s employment, there was insufficient evidence to support the conclusion that her comments were made with discriminatory animus. Noyes’ first comments occurred at or around Arnold’s birthday, a natural and appropriate occasion for discussing a person’s age and future plans. Noyes’s second comments expressed surprise at Arnold’s age, which the Court did not find indicative of animus where it was undisputed that Arnold did not discuss her age and had the physical appearance of a much younger person. The Court found Noyes’ third comment was similarly benign. The Court also observed that Arnold did not provide any specific examples of discrimination in her grievance.

Liberally construing Arnold’s evidence opposing summary judgment, the Court found that her showing remained “too weak to raise a rational inference that discrimination occurred.” (Guz, supra, 24 Cal.4th at p. 362.) The Court therefore concluded that Arnold failed to make a sufficient showing to support her contention that defendants terminated her employment based of her age.

The Court also found that Arnold’s evidence presented to show discrimination based on her association with African-Americans did not suffice to establish a triable issue of material fact. Arnold alleged that she complained to Slaugh about her coworker’s mistreatment and that no one from Dignity followed up with her about her complaint. The Court noted that Slaugh was not part of Arnold’s termination, and there was no evidence that anyone involved in the decision to terminate Arnold’s employment knew about the complaint or that it factored into their determination. The Court therefore found that the trial court did not err in granting Dignity’s summary adjudication as to Arnold’s claim for discrimination based on her association with African-Americans.

The Third District Court of Appeal accordingly affirmed. 

MARIJUANA

1. Proposition 64 did not decriminalize the possession of cannabis in a penal institution.

People v. Herrera, 52 Cal. App. 5th 982 (6th Dist. 2020)

Facts: In 2016, voters enacted Proposition 64, the Control, Regulate and Tax Adult Use of Marijuana Act.[26] The intent of the Act included “[p]ermit[ting] adults 21 years and older to use, possess, purchase and grow nonmedical marijuana within defined limits for use by adults 21 years and older as set forth in [the Act].”[27]

Proposition 64 added section 11362.1 to the Health and Safety Code which generally allows the possession, smoking, and ingestion of cannabis, as well as the cultivation of cannabis plants. Section 11362.1(a) provides in part:

“(a) Subject to Sections 11362.2, 11362.3, 11362.4, and 11362.45, but notwithstanding any other provision of law, it shall be lawful under state and local law, and shall not be a violation of state or local law, for persons 21 years of age or older to:

“(1) Possess … not more than 28.5 grams of cannabis not in the form of concentrated cannabis;

…

“(4) Smoke or ingest cannabis or cannabis products…”

The phrase “notwithstanding any other provision of law” in Section 11362.1(a) signals an intent for the statute to prevail over all contrary law. However, Section 11362.1(a) also states that a person’s ability to possess, smoke, or ingest cannabis is “[s]ubject to Sections 11362.2, 11362.3, 11362.4, and 11362.45.” Relevant here, Section 11362.45 states: “Section 11362.1 does not amend, repeal, affect, restrict, or preempt … [¶] … [¶] (d) Laws pertaining to smoking or ingesting cannabis or cannabis products on the grounds of, or within, any facility or institution under the jurisdiction of the Department of Corrections and Rehabilitation or the Division of Juvenile Justice, or on the grounds of, or within, any other facility or institution referenced in Section 4573 of the Penal Code.” (Section 11362.45(d), italics added.) The facilities referenced in Penal Code section 4573 include state prisons and county jails. (Penal Code section 4573(a).)

Jesse Herrera’s Conviction

In July 2017, a deputy sheriff assigned to the county jail observed a group of inmates, including defendant Jesse Herrera in a dorm. The deputy smelled marijuana upon approaching the group. Surveillance tape indicated that defendant had thrown something behind him the few seconds that the deputy was not watching. The deputy conducted a search and found a bag of marijuana in the area where it appeared from the surveillance video that defendant had dropped something. Subsequent testing revealed the bag contained 0.59 grams of marijuana.

Herrera was charged by amended information with possession of a controlled substance, marijuana, in jail (Penal Code section 4573.6(a)) along with another charge. The amended information also alleged that Herrera had suffered a prior strike conviction, and that he had served four prior prison terms. In December 2018, the jury found Herrera guilty of possession of marijuana in jail under Section 4573.6(a). The jury found true allegations that Herrera had previously been convicted of robbery, and that he had served three prior prison terms. He was sentenced to eight years in prison, consisting of six years for possession of marijuana in jail and consecutive terms of one year for two of the prison priors under Section 667.5, former subd. (b). Herrera appealed.

Held: The California Sixth District Court of Appeal noted that the issue of whether Proposition 64 decriminalized the possession of cannabis in prison or jail is currently pending before the California Supreme Court. In People v. Raybon (3rd Dist. 2019) 36 Cal.App.5th 111, review granted August 21, 2019, S256978, the Third District held that possession of less than one ounce of cannabis in prison is no longer a crime under Section 4573.6 after the passage of Proposition 64. (Raybon, supra, at pp. 119, 126.) However, the First District in People v. Perry (1st Dist. 2019) 32 Cal.App.5th 885 concluded that possession of cannabis in prison remains a crime under Section 4573.6 after the passage of Proposition 64. (Perry, supra, at p. 887; see also People v. Whalum (4th Dist. 2020) 50 Cal.App.5th 1, 3 [Fourth District concluding “that the crime of possessing unauthorized cannabis in prison in violation of Penal Code section 4573.8 was not affected by Proposition 64”], petn. for review pending, petn. filed July 7, 2020.)

On appeal, Herrera contended that his conviction under Section 4573.6(a) must be reversed because the possession of a small amount of cannabis in jail was no longer a crime after the passage of Proposition 64. The Attorney General contended that Proposition 64 did not affect the law prohibiting possession of cannabis in custodial institutions.

Section 4573.6(a), which states in part: “Any person who knowingly has in his or her possession in any state prison, … or in any county … jail, … any controlled substances, the possession of which is prohibited by Division 10 (commencing with Section 11000) of the Health and Safety Code, …” without proper authorization “… is guilty of a felony … .” (Section 4573.6(a), italics added.) Division 10 of the Health and Safety Code comprises the California Uniform Controlled Substances Act.[28] Chapter 2 contains schedules listing controlled substances subject to the provisions of division 10, and chapter 6 describes the offenses associated with controlled substances.[29] Cannabis is listed in Schedule I.[30]

Section 11362.45 provides that the general provision authorizing adult possession of cannabis “does not amend, repeal, affect, restrict, or preempt … [¶] … [¶] … [l]aws pertaining to smoking or ingesting cannabis or cannabis products on the grounds of, or within, any” prison or jail. (Section 11362.45(d); italics added.) The Sixth District explained that the issue here was whether Penal Code section 4573.6(a) was a “[l]aw[] pertaining to smoking or ingesting cannabis” in jail within the meaning of Health and Safety Code section 11362.45(d). If so, the Court explained, then Proposition 64 did “not amend, repeal, affect, restrict, or preempt” Section 4573.6(a), and possession of cannabis in jail remained a crime.

The Sixth District observed that although Section 4573.6(a) prohibits “possession” of controlled substances in a penal institution and does not expressly address smoking or ingesting controlled substances, Section 11362.45(d) carves out from Proposition 64’s legalization of cannabis “[l]aws pertaining to smoking or ingesting” cannabis in a penal institution. (Section 11362.45(d), italics added.) “Definitions of the term ‘pertain’ demonstrate its wide reach: It means ‘to belong as an attribute, feature, or function’ [citation], ‘to have reference or relation; relate’ [citation], ‘[b]e appropriate, related, or applicable to’ [citation].” (Perry, supra, 32 Cal.App.5th at p. 891.) The Court explained that considering the “wide reach” of the phrase “‘pertaining to,’” “[w]e would be hard pressed to conclude that possession of cannabis is unrelated to smoking or ingesting the substance.” (Ibid.) The Court added that “[i]n the context of possession in prison, it is particularly obvious that possession must ‘pertain’ to smoking or ingesting.” (Perry, supra, at p. 892.)

The Court also noted that the three subdivisions preceding subdivision (d) of Section 11362.45 used the phrase “making it unlawful to” in carving out certain conduct from Proposition 64’s cannabis legalization, unlike the “pertaining to” in subdivision (d) at issue here. The Court stated that this use of the phrase “pertaining to” in subdivision (d) indicated an intent to carve out laws beyond those that only make unlawful or only prohibit the smoking or ingesting of cannabis. Finally, the Court noted determined that Section 11362.45(d) must be construed as having a broader application than to just a law that expressly prohibits the smoking or ingesting of cannabis in prison or jail, as no such law exists. In this context, and in view of the wide application of Section 11362.45(d) with its “pertaining to” language, the only reasonable construction of the carve out was that it encompassed a law “pertaining to smoking or ingesting” cannabis in prison or jail, such as Penal Code section 4573.6’s prohibition on the possession of controlled substances in prison or jail.

In sum, the Sixth District concluded that possession of a controlled substance in jail under Penal Code section 4573.6(a) is a law pertaining to smoking or ingesting cannabis in prison or jail, and Herrera was therefore properly convicted of violating Penal Code section 4573.6(a) for possession of cannabis in jail.[31]

1. Plaintiff alleged that its cultivation and possession of marijuana were fully compliant with state laws; thus, marijuana seized was not contraband, and plaintiff could assert valid claim seeking its return.

Granny Purps, Inc. v. Cnty. of Santa Cruz, 53 Cal. App. 5th 1 (6th Dist. 2020)

Facts[32]: Plaintiff Granny Purps, Inc., operates a medical marijuana dispensary in Santa Cruz County that grows and provides medical marijuana to its 20,000 members. Plaintiff conducts its activities in compliance with state laws governing the production and distribution of marijuana for medical purposes.

The County of Santa Cruz restricts cannabis cultivation. A local ordinance prohibits any medical cannabis operation from cultivating more than 99 plants, while plaintiff’s dispensary was growing thousands of marijuana plants. Law enforcement officers from the County sheriff’s office seized about 1,800 plants from the dispensary in June 2015. The County also issued Plaintiff a notice of ordinance violation. Several months later, law enforcement officers again went to the dispensary and took about 400 more marijuana plants.

Plaintiff sued the County and two sheriff’s deputies in July 2016. The complaint asserted claims for monetary damages, alleging causes of action for conversion, trespass, and inverse condemnation. Plaintiff also sought an order requiring the County to return the seized cannabis plants, by way of a writ of mandate, injunctive relief, and a cause of action for specific recovery of property. Plaintiff also requested a judgment declaring that the County cannot lawfully seize cannabis plants from a dispensary operating in compliance with state medical marijuana laws.

The County demurred to the complaint on the grounds that it failed to state a valid cause of action and the claims were time barred. The County asserted that it had no obligation to return the plants since the dispensary violated the ordinance. The trial court sustained the demurrer without leave to amend and entered judgment for defendants. Plaintiff appealed, seeking, among other things, an order compelling the county to return the seized marijuana plants.

Held: The California Sixth District Court of Appeal explained that generally, a government agency cannot retain an individual’s property without providing due process of law. (Ensoniq Corp. v. Superior Court (6th Dist. 1998) 65 Cal.App.4th 1537, 1548–1549.) Someone whose property is wrongfully withheld by the government may bring a cause of action specifically for an order compelling return of the property. (Minsky v. City of Los Angeles (1974) 11 Cal.3d 113, 121–123.) However, an exception to this general rule is the state can retain property that is illegal to possess, whether it was lawfully seized or not. (Ensoniq Corp., supra, 65 Cal.App.4th 1537, 1548.) Because the illegal property exception applies only where the property in question is per se illegal to possess,[33] the Court determined that it must determine if the seized marijuana was contraband per se.

The County asserted that because Plaintiff’s dispensary violated a local ordinance restricting cannabis cultivation within the County, the marijuana was illegally possessed and Plaintiff had no right to its return.

The Court explained that the Compassionate Use Act of 1996[34] made marijuana “‘possession and cultivation … noncriminal for a qualified patient or primary caregiver.’” (City of Garden Grove v. Superior Court (4th Dist. 2007) 157 Cal.App.4th 355, 372.) The passage of the Medical Marijuana Program Act[35] decriminalized medical marijuana-related activities beyond mere possession. The Legislature “exempted those qualifying patients and primary caregivers who collectively or cooperatively cultivate marijuana for medical purposes from criminal sanctions for possession for sale, transportation or furnishing marijuana, maintaining a location for unlawfully selling, giving away, or using controlled substances, managing a location for the storage, distribution of any controlled substance for sale, and the laws declaring the use of property for these purposes a nuisance.” (People v. Urziceanu (3rd Dist. 2005) 132 Cal.App.4th 747, 785.)

The Court declared that a valid local ordinance restricting the number of marijuana plants that can be cultivated did not change the status of medical marijuana under state criminal law (nor could it, as any attempt to do so would be preempted). (People v. Ahmed (1st Dist. 2018) 25 Cal.App.5th 136, 143.) The Court stated that possession of medical cannabis, by those qualified according to state law, was not a crime. This necessarily meant that marijuana possessed for medical purposes in compliance with state standards, as Plaintiff alleged,[36] was not contraband per se. The Sixth District Court of Appeal reversed and remanded, stating that the causes of action seeking return of property survived demurrer.

MISCELLANEOUS

1. California Constitution does not permit Department of Corrections and Rehabilitation to adopt regulations denying eligibility for early parole consideration based solely on nonviolent felony conviction for indecent exposure.

In re Febbo, 52 Cal. App. 5th 1088 (4th Dist. 2020)

Facts: Proposition 57, enacted by the voters in November 2016, amended the California Constitution to permit early parole consideration for “[a]ny person convicted of a nonviolent felony offense and sentenced to state prison.” (Cal. Const., art. I, section 32(a)(1).) Proposition 57 was a response to federal court orders requiring California to implement measures to reduce its prison population.

Proposition 57 granted the Department of Corrections and Rehabilitation (“CDCR”) authority to “adopt regulations in furtherance of these provisions.” (Cal. Const., art. I, section 32(b).) Pursuant to this authority, CDCR promulgated and adopted regulations which rendered ineligible for early parole consideration any inmate who “is 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(b)(3).) This ineligibility applied categorically to any and all offenses requiring registration as a sex offender, regardless of whether or not they might be characterized as violent.

Every person convicted of a crime identified in Penal Code section 290(c) is required to register as a sex offender with the relevant branch of local law enforcement while that person resides or works in California. (Id., subd. (b).) California Code of Regulations, title 15, section 3490(c) defines violent felony as “a crime or enhancement as defined in subdivision (c) of Section 667.5 of the Penal Code.” Most, but not all, of the crimes listed in Penal Code section 290(c) are also listed as violent offenses in Section 667.5(c). Although indecent exposure is listed as an offense in Section 290(c), indecent exposure is not listed as a violent offense under Section 667.5(c)

CDCR maintained that public safety concerns justified excluding all sex offenders for early parole consideration.[37] CDCR observed that some offenses requiring sex offender registration are not considered violent felonies but do involve “some degree of physical force, coercion, or duress with the victim, often a minor.”[38] Examples of such offenses are “incest, pimping of a minor under sixteen, sexual battery, and lewd and lascivious acts with a fourteen or fifteen year old victim where the perpetrator is at least ten years older.”[39]

In July 2016, a jury convicted Rick Ryan Febbo of three counts of felony indecent exposure in violation of Penal Code section 314(1). He was sentenced to a determinate term of six years eight months in prison and is currently serving that term. Febbo previously had been convicted of indecent exposure in 2007 and 2009. Due to his prior and current convictions for indecent exposure, Febbo must register as a sex offender in accordance with Penal Code section 290(c).

In April 2018, Febbo filed an inmate/parolee appeal to the CDCR by which he sought to confirm that he would be given an early parole hearing after serving the first two years of his sentence. The appeal was rejected. His subsequent appeal to the Board of Parole Hearings (“BPH”) to consider Febbo for an early parole hearing under Proposition 57 was also rejected. The BPH wrote that because Febbo had been convicted of a sexual offense requiring his registration under Penal Code section 290, he was therefore not eligible for the nonviolent parole process. Thereafter, Febbo’s inmate/parolee appeal formally requesting an early parole hearing under Proposition 57 was also rejected.

Febbo filed a petition for writ of habeas corpus in the trial court. He alleged the CDCR regulations making nonviolent sex offenders ineligible for early parole consideration under Proposition 57 were unlawful and “a clear violation of the California Constitution, as amended by Proposition 57.” The trial court granted Febbo’s petition for writ of habeas corpus, finding the CDCR’s Section 3491(b)(3) regulation “excluding inmates … from early parole consideration is inconsistent with California Constitution, article I, [section] 32, and is therefore invalid.” As relief, the trial court ordered the CDCR not to exclude nonviolent sex offenders from early parole consideration “based on such status alone” and to evaluate Febbo for early parole consideration within 60 days. The CDCR appealed from the order granting Febbo’s petition for writ of habeas corpus.

Held: The California Fourth District Court of Appeal considered the text of Section 32(a)(1), part of the section added to the Constitution due to the passage of Proposition 57. “Section 32, subdivision (a) of article I of the California Constitution unequivocally states that 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.” (Alliance for Constitutional Sex Offense Laws v. Department of Corrections & Rehabilitation (3rd Dist. 2020) 45 Cal.App.5th 225, 234 (italics kept), review granted May 27, 2020, S261362.) The Fourth District found the Section 32(a)(1)’s structure and meaning unambiguous. The Fourth District noted that Alliance held that the CDCR exceeded its rulemaking authority by categorically excluding from eligibility for early parole consideration all inmates serving sentence for current nonviolent sex offenses requiring registration under Penal Code section 290. (Id., at pp. 228, 231–234.)

The Court then turned to determining whether indecent exposure is a nonviolent felony offense under Section 32(a)(1). Section 32(a)(1) does not define the term “nonviolent felony offense” undefined or refer to any other constitutional or statutory provision to supply a definition. The Court determined that when CDCR’s regulation at Title 15, section 3490(c) was read in conjunction with Title 15, section 3491(b)(3), “[t]he effect is that the term nonviolent felony offense under section 32(a)(1) means any crime or enhancement that is not identified in section 667.5(c) or for which registration as a sex offender is not required under Penal Code sections 290 through 290.024.” Here, Febbo’s indecent exposure offense was not listed as a violent offense in Section 667.5, although he was required to register as a sex offender under Section 290(c).

To help determine the meaning of the terms nonviolent felony offense and violent felony, the Fourth District considered the crimes identified in Section 667.5(c) as violent felonies, a federal provision’s definition of the term “crime of violence,” and case law. The Court determined that these definitions shared common elements: Violence or a violent crime involves physical force, sexual contact, physical injury or destruction of property, fear, coercion, or duress. Based on this determination, the Court found that indecent exposure was not a violent crime under any of the given definitions. The Court noted that under Penal Code section 314, a person commits indecent exposure if that person: “1. Exposes his person, or the private parts thereof, in any public place, or in any place where there are present other persons to be offended or annoyed thereby; or [¶] 2. Procures, counsels, or assists any person so to expose himself or … to make any other exhibition of himself to public view, or the view of any number of persons, such as is offensive to decency, or is adapted to excite to vicious or lewd thoughts or acts.” The Court determined that none of the conduct punishable under Penal Code section 314 involved physical contact, use of physical force against persons or property, infliction of physical injury or property damage, use of fear, duress, sexual contact, coercion, or threats. Thus, Febbo could not be denied eligibility for early parole consideration solely based on his convictions for that offense.

In sum, the Fourth District concluded that the term nonviolent felony offense in Section 32(a)(1) was unambiguous and included the crime of indecent exposure under Penal Code section 314. The CDCR regulations were therefore invalid in denying early parole eligibility solely on the ground the inmate committed that offense. However, the Court noted that Section 32(a)(1) only made an inmate eligible for early parole consideration and did not necessarily guarantee that the inmate would be paroled. That decision remained with the BPH, which could consider an inmate’s full criminal history, including prior sex offenses, in deciding whether to grant parole.[40]

Accordingly, the Fourth District Court of Appeal affirmed the trial court order granting the petition for writ of habeas corpus.

1. California Supreme Court provides seven-factor test that a trial court should use in ruling on a motion to quash a subpoena duces tecum directed to a third party.

Facebook, Inc. v. Superior Court (Touchstone), 10 Cal. 5th 329 (2020)

Facts: In May 2018 in Facebook v. Superior Court (Hunter),^[41] the California Supreme Court had addressed issues concerning the propriety of criminal defense subpoenas served on social media providers, including Facebook, Inc., seeking restricted posts and private messages of two of their users. In Facebook (Hunter),^[42] the Court held, in part, that to the extent a subpoena duces tecum seeks a communication that had been configured as and remained public, Facebook could not assert the federal Stored Communications Act (18 U.S.C. section 2701 et seq.; “SCA”) as a shield to block enforcement of the subpoena.^[43]

While that case was pending, the Supreme Court granted review in the instant case, a pretrial criminal discovery matter. Defendant Lance Touchstone^[44] was charged with shooting and attempting to murder Jeffrey Renteria. A preliminary hearing was held in which Defendant’s presentation of the facts conveyed that Defendant had acted in self-defense in shooting Renteria.

Five months after the preliminary hearing, Defendant sought, before a different judge, a subpoena duces tecum for all of Renteria’s Facebook communications (including restricted posts and private messages) before and after the shooting, and requested that Facebook preserve all such communications. Defendant contended that he needed all electronic communications by Renteria in order to prepare his defense. Specifically, Defendant contended that he had a viable claim of self-defense against Renteria, and that he required the communications to investigate and present that affirmative defense. Secondarily, or alternatively, Defendant sought to prepare to impeach the character of the anticipated main prosecution witness against him—the victim, Renteria—if Renteria was to be called by the prosecution at trial. Defendant supported his demands for Renteria’s Facebook communications by offering a sealed declaration describing and quoting certain public Facebook posts made by Renteria after the shooting that, Defendant asserted, revealed Renteria’s violent general thoughts.

Defendant also asserted that, to the extent the SCA allowed Facebook to block his subpoena, the SCA must be found to violate his federal Fifth Amendment due process rights, along with his Sixth Amendment rights of confrontation, cross-examination, and counsel—and thus the SCA was unconstitutional as applied to him.

The trial judge ordered Facebook to comply with the subpoena or appear in court to address any objection to it and to preserve the account and related stored communications. Facebook preserved Renteria’s account as directed, and then moved to quash the subpoena. Defendant argued in his brief opposing the motion to quash that he had established the requisite “plausible justification” (see, e.g., City of Alhambra v. Superior Court (2nd Dist. 1988) 205 Cal.App.3d 1118, 1134) for acquiring any restricted posts and private messages, and that the motion to quash should be denied. In support, Defendant invited the trial judge to “review … the specific plausible justifications establishing [Defendant’s] right to compel the disclosure of documents” set out in a second and also sealed^[45] declaration in opposition to the motion to quash filed simultaneously with the opposition brief.

The trial court found that Defendant established good cause to acquire the communications requested from Facebook and denied Facebook’s motion to quash.

Facebook sought a peremptory writ of mandate directing the trial court to vacate its order denying the motion to quash the subpoena and to enter a new order granting the motion. The Fourth District Court of Appeal observed that Facebook (Hunter) was then pending before the Supreme Court. The Court of Appeal rejected Defendant’s claims and denied him pretrial discovery. The Fourth District directed the trial court to vacate its order denying Facebook’s motion to quash, and to enter a new order granting the motion.

Held: The Supreme Court of California granted review to address the propriety of the criminal defense subpoena served on Facebook. In supplemental briefing, Defendant maintained that the subpoena duces tecum upon Facebook was supported by good cause, and that the trial court properly denied Facebook’s motion to quash. Facebook and the District Attorney contended that Defendant failed to state sufficient justification for acquiring the sought communications, and that the subpoena was not supported by good cause.

The Supreme Court explained that under Penal Code section 1326(a), various officials or persons—including defense counsel, and any judge of the superior court—may issue a criminal subpoena duces tecum. Unlike civil subpoenas, there is no statutory requirement of a “‘good cause’” affidavit before a criminal subpoena may be issued. (Pitchess v. Superior Court (1974) 11 Cal.3d 531, 535; City of Woodlake v. Tulare County Grand Jury (5th Dist. 2011) 197 Cal.App.4th 1293, 1301 [no requirement of a “good cause affidavit” “[i]n criminal matters”].)

The Court explained that although no substantial showing was required to issue a criminal subpoena duces tecum, in order to defend such a subpoena against a motion to quash, the subpoenaing party must at that point establish good cause to acquire the subpoenaed records. (See Pitchess, supra, 11 Cal.3d at p. 537. [the defendant must show “some cause for discovery other than ‘a mere desire for the benefit of all information.’”].)

The Supreme Court listed seven factors that should be considered by a trial court in considering whether good cause has been shown regarding the enforcement of a criminal subpoena duces tecum issued to a third party that has been challenged by a motion to quash. This seven-factor test was based on a list discussed in the Alhambra opinion^[46] and on text from a leading criminal discovery treatise.^[47] The Court set forth these seven “Alhambra factors” as follows:

(1) Has the defendant carried his burden of showing a “‘plausible justification’” for acquiring documents from a third party^[48] by presenting specific facts demonstrating that the subpoenaed documents are admissible or might lead to admissible evidence that will reasonably “‘assist [the defendant] in preparing his defense’”?^[49] Or does the subpoena amount to an impermissible “‘fishing expedition’”?^[50]

(2) Is the sought material adequately described and not overly broad?

(3) Is the material “reasonably available to the … entity from which it is sought (and not readily available to the defendant from other sources)”?^[51]

(4) Would production of the requested materials violate a third party’s “confidentiality or privacy rights” or intrude upon “any protected governmental interest”?^[52]

(5) Is defendant’s request timely? Or, alternatively, is the request premature?

(6) Would the “time required to produce the requested information … necessitate an unreasonable delay of defendant’s trial”?^[53]

(7) Would “production of the records containing the requested information … place an unreasonable burden on the [third party]”?^[54]

For the instant case, the Court elaborated on two of the seven factors. First, the Court focused on “plausible justification,” citing Ballard v. Superior Court (1966) 64 Cal.2d 159 and Hill, supra, 10 Cal.3d 812. In Ballard, the Supreme Court’s first decision articulating the plausible justification standard, the Court measured the defendant’s stated justification for acquiring the sought information against the legal claims (in that case, asserted violations of the rights to counsel and to remain silent) pursuant to which the defendant urged the information would be relevant. In Hill, the Court had expressed that each legal claim that a defendant advances to justify acquiring and inspecting sought information must be scrutinized and assessed regarding its validity and strength.

Consistent with the approach undertaken in Ballard and Hill, in assessing the current Defendant’s primary basis for plausible justification to acquire and inspect the sought restricted posts and private messages (to support a claim of self-defense), the Supreme Court explained that an appropriate inquiry would focus on the facts as alleged in the briefings (that Defendant, the District Attorney, and Facebook filed with the Court) and also as reflected in the preliminary hearing transcript in order to assess whether a claim of self-defense was sufficiently viable to warrant that significant intrusion.

In assessing the Defendant’s secondary (and, if the self-defense-claim justification failed, alternative) basis for plausible justification in the present case (to impeach prospective witness Renteria), the Court explained that an appropriate inquiry would consider whether such a significant intrusion was warranted and necessary to facilitate the contemplated impeachment. The Court stated that the analysis should be informed by the circumstance that Defendant had already acquired, not only Renteria’s public posts (which, Defendant asserted, contain substantial relevant information) but also Renteria’s probation reports, which detailed his prior convictions and contained other substantial related impeachment information. The Court added that when, as here, a subpoena seeks restricted social media posts and private messages, in the absence of an apparent relationship between the underlying crime and such communications,^[55] a trial court should examine even more closely the proffered showing of plausible justification in support of such a privacy intrusion.

The Supreme Court also elaborated on the Alhambra factor concerning third-party privacy/government interest intrusions. The Court observed that when considering the enforceability of a criminal defense subpoena duces tecum, “[t]he protection of [the subject of a subpoena’s] right to be free from unreasonable search and seizure constitutes a ‘legitimate governmental interest.’” Pacific Lighting, supra, 60 Cal.App.3d 552, 566-567. The Court declared that an appropriate assessment of a social media user’s rights implicated by such a subpoena would take into account the likelihood that the asserted connection between an underlying crime and any sought private communications actually exists.

In Facebook (Hunter), the Supreme Court found that there was significant evidence that the underlying shooting and resulting homicide may have related to, and stemmed from, social media posts; therefore, the nexus, and justification for intruding into a victim’s or witness’s social media posts (public and restricted, and/or private messages), was substantial. Here, the Court questioned whether there was any similar substantial connection between the victim’s social media posts and the alleged attempted murder by Defendant. Accordingly, the Court stated that plausible justification—which must in all cases be “so substantiated as to make the seizure constitutionally reasonable” (Pacific Lighting, supra, 60 Cal.App.3d at p. 567)—must be subject to even closer examination in the absence of an apparent relationship between the alleged crime and the private communications sought for disclosure.

The Supreme Court noted that the trial court judge who conducted the hearing on the motion to quash found good cause for the subpoena duces tecum and denied the motion. The Supreme Court observed, however, that neither the reporter’s transcript of the hearing, nor the resulting minute order, reflected that the trial court expressly considered and balanced the Alhambra factors.^[56] The trial court did not expressly mention whether defendant had shown plausible justification for acquiring crime victim Renteria’s restricted posts and private messages, nor consider other Alhambra factors – including the adequacy of the description/overbreadth, availability of the sought material from other sources, privacy/confidentiality and constitutional concerns, timeliness, potential for delay of trial, and asserted undue burden on a producing third party. The Supreme Court stressed that especially at the time when ruling on a motion to squash a subpoena, the judicial officer must assess and balance such factors. Moreover, the Court cautioned trial courts against readily allowing a defendant seeking to enforce such a subpoena to proceed, as was done here, ex parte and under seal.

The Supreme Court concluded that the trial court below abused its discretion when ruling on the motion to quash in failing to apply the seven-factor Alhambra test. With regard to the constitutional and other issues potentially presented by this case, the Supreme Court explained that it was “generally reluctant to address significant substantive legal issues when, due to underlying factual and related problems, it may prove unnecessary to do so.” The Court added that it was especially disinclined to resolve the important constitutional, statutory, and related issues addressed in the briefs when the underlying subpoena might not be enforceable because of the questions concerning whether the subpoena was supported by good cause.

Accordingly, the Supreme Court directed the Court of Appeal to vacate the trial court’s denial of the motion to quash and instructed the trial court to reconsider that motion consistent with the Court’s guidance in this case.

The Supreme Court briefly addressed the issue of whether Facebook was covered by the SCA. Defendant and the District Attorney asserted that Facebook’s business model placed it outside key provisions of the SCA and rendered it subject to an enforceable state subpoena. Defendant and the District Attorney set forth a theory that Facebook’s business model of mining its users’ communications content, analyzing that content, and sharing the resulting information with third parties to facilitate targeted advertising, precluded Facebook from qualifying as an entity subject to the SCA. The Court explained that the SCA covers only two types of entities—(1) those that provide “electronic communication service” (“ECS”) and (2) those that provide “remote computing service” (“RCS”)—and the law bars such entities from divulging to others the contents of their users’ communications. Defendant and the District Attorney asserted that Facebook was neither a provider of ECS nor of RCS under the provisions of the SCA. Facebook suggested that the Supreme Court’s opinion in Facebook (Hunter) supra, 4 Cal.5th 1245 had already determined that Facebook operated as a provider of either ECS or RCS, and hence was covered by the SCA.

After stating that it would not assess the underlying merits of the business model thesis, the Supreme Court explained that, contrary to Facebook’s view, the Court had not determined whether, under the business model theory, Facebook provided either ECS or RCS, or neither, under the SCA.

For a more detailed discussion of this case, please see Client Alert Vol. 35, No. 27, available at www.jones-mayer.com.

[1] People v. Wilkins, 186 Cal.App.3d 804, 809 (6th Dist. 1986) [detention occurred when officer in marked patrol car parked diagonally behind the defendant’s vehicle so it could not exit parking lot].

[2] People v. Bailey, 176 Cal.App.3d 402, 405–406 (6th Dist. 1985) [“reasonable person to whom the red light from a vehicle is directed would be expected to recognize the signal to stop or otherwise be available to the officer”].

[3] The Third District distinguished the instant case from People v. Garry (1st Dist. 2007) 156 Cal.App.4th 1100 in which an officer did act in the aforementioned manner.

[4] See Florida v. Bostick, 501 U.S. 429, 434–437 (1991) [no seizure when officers question a person, ask for identification, and request consent for search, so long as officers do not convey message that compliance is required].

[5] Pedro Hernandez was apparently not related to Reynaga or Jane.

[6] Melendres, 695 F.3d at 1000-01.

[7] United States v. Sandoval, 390 F.3d 1077, 1080 (9th Cir. 2004) (emphasis added)

[8] See Amaya-Ruiz v. Stewart, 121 F.3d 486, 494 (9th Cir. 1997), overruled on other grounds by United States v. Preston, 751 F.3d 1008 (9th Cir. 2014) (en banc).

[9] United States v. Miller, 984 F.2d 1028, 1031 (9th Cir. 1993) (citing Frazier v. Cupp, 394 U.S. 731, 737-39 (1969)).

[10] Dickerson, 530 U.S. at 434 (second alteration in original) (quoting Stein v. New York, 346 U.S. 156, 185 (1953)).

[11] Doody v. Ryan, 649 F.3d 986, 1011 (9th Cir. 2011) (en banc).

[12] Juan H. v. Allen, 408 F.3d 1262, 1273 (9th Cir. 2005) (quoting Fare v. Michael C., 442 U.S. 707, 727 (1979)).

[13] Woodford v. Visciotti, 537 U.S. 19, 24 (2002) (per curiam) (quoting Lindh v. Murphy, 521 U.S. 320, 333 n.7 (1997)).

[14] Diehl’s report also stated, “‘Based upon my training and experience the substance in which Cornejo had swallowed was suspected to be a controlled substance.’”

[15] Normally one of the officers who made the enforcement stop would be the “arresting officer” responsible for the paperwork but Diehl had suggested Bruno be the arresting officer as a “training opportunity,” and Hazelwood agreed. It was Bruno’s third day on the job.

[16] Defendants’ brief represented that the federal court found the plaintiffs had failed to raise a genuine issue of material fact as to whether the officers violated their constitutional rights and whether the officers were entitled to qualified immunity.

[17] See also Zelig v. County of Los Angeles, 27 Cal.4th 1112, 1128–1129 (2002).

[18] Section 3600(a), (a)(3).

[19] Section 3366(a).

[20] See 2016 Cal. Stat. 1549 section 1 (Senate Bill 1446), and Proposition 63 amending Section 32310(c).

[21] The Penal Code provides several exceptions to Section 32310, including those for active or retired law enforcement officers, see Sections 32400, 32405, 32406, 32455, armored vehicle security forces, see Section 32435, manufacture for government use, see Section 32440, holders of special weapons permits for limited purposes, see Section 32450, and use as props in film production, see Section 32445.

[22] These include the Glock pistol — sometimes referred to as “America’s gun” due to its popularity — and its variants, and the popular the Beretta Model 92.

[23] See Client Alert Vol. 32, No. 17.

[24] See Duncan v. Becerra, 742 F. App’x 218, 221-22 (9th Cir. 2018).

[25] See Client Alert Vol. 34, No. 14.

[26] Voter Information Guide, Gen. Elec. (Nov. 8, 2016) text of Prop. 64, section 1, p. 178 (“Voter Information Guide”).

[27] Id., text of Prop. 64, section 3(l), p. 179.

[28] Health and Safety Code section 11000 et seq.

[29] See People v. Fenton, 20 Cal.App.4th 965, 968 (3rd Dist. 1993).

[30] Health and Safety Code section 11054(d)(13).

[31] The Court of Appeal nonetheless reversed and remanded due to its conclusions on another matter regarding prior prison term enhancements that had been applied to Herrera.

[32] The facts are taken from the operative first amended complaint.

[33] See Minsky v. City of Los Angeles, supra, 11 Cal.3d 113, 121 [government is a bailee of seized property unless it is shown to be contraband]; People v. Lamonte, 53 Cal.App.4th 544, 552 (4th Dist. 1997); see also U.S. v. Harrell (9th Cir. 2008) 530 F.3d 1051, 1057 [“An object is contraband per se if its possession, without more, constitutes a crime; or in other words, if there is no legal purpose to which the object could be put.”].

[34] See Health and Safety Code section 11362.5.

[35] Health and Safety Code section 11362.71 et seq.

[36] The Court stated that it must assume that Plaintiff’s allegations in the complaint that its cultivation and possession of marijuana were fully compliant with applicable state laws were true for purposes of the Court’s review, because this case came to the Court on demurrer.

[37] CDCR, Credit Earning and Parole Consideration Final Statement of Reasons (Apr. 30, 2018), p. 20.

[38] Id.

[39] Id.

[40] See Penal Code section 3040 et seq.; Cal. Code Regs., tit. 15, section 2449.32(c).

[41] 4 Cal.5th 1245 (2018).

[42] See Client Alert Vol. 33, No. 15 for discussion of Facebook v. Superior Court (Hunter).

[43] Id., at pp. 1250, 1262–1274.

[44] Defendant has no relationship to the author.

[45] The Supreme Court later unsealed the declarations for its review after the parties had not objected.

[46] Alhambra, supra, 205 Cal.App.3d 1118, 1132, 1134.

[47] Hoffstadt, California Criminal Discovery (5th ed. 2015) section 13.03, pages 390–391 (“Hoffstadt on Criminal Discovery”).

[48] Kling v. Superior Court of Ventura County (2010) 50 Cal.4th 1068, 1075; Hill v. Superior Court (1974) 10 Cal.3d 812, 817–818 [discovery context]; Joe Z. v. Superior Court (1970) 3 Cal.3d 797, 804 [discovery context]; see also, e.g., Alhambra, supra, 205 Cal.App.3d at pp. 1124, 1128, 1131–1136 [discovery context]; Pacific Lighting Leasing Co. v. Superior Court (1976) 60 Cal.App.3d 552, 566–567 (“Pacific Lighting”).

[49] People v. Superior Court (Barrett) (4th Dist.2000) 80 Cal.App.4th 1305, 1318 (“Barrett”); Alhambra, supra, at p. 1133–1134 [discovery context].

[50] Pitchess, supra, 11 Cal.3d at p. 538; Barrett, supra, 80 Cal.App.4th at p. 1320, fn. 7.

[51] Alhambra, supra, at p. 1134 [discovery context]; see also Hill, supra, 10 Cal.3d 812, 817 [posing whether the defendant “cannot readily obtain the [discovery] information through his own efforts”].

[52] Alhambra, supra, 205 Cal.App.3d at p. 1134 [discovery context].

[53] Id., at p. 1134 & fn. 17 [discovery context].

[54] Id., at p. 1134 [discovery context]; see also Facebook (Hunter), supra, 4 Cal.5th at pp. 1289–1290 [regarding asserted burdens on a social media provider].

[55] The Supreme Court had obtained and took judicial notice of the underlying preliminary hearing transcript and exhibits from the trial court. The Supreme Court found that the testimony and exhibits introduced at the preliminary hearing called into question Defendant’s asserted self-defense justification for obtaining access to Renteria’s restricted posts and private messages and Defendant’s contention that his need for access to such communications was particularly compelling and overcame any competing privacy interests of Renteria. Although the Court acknowledged this was merely preliminary hearing evidence, the Court explained that it “nevertheless constitute[d] relevant material that could properly be considered by a trial court that, having been presented with an assertedly viable claim of self-defense, is required to rule on a motion to quash a subpoena seeking restricted and private social media communications.”

[56] The Supreme Court stated, “…a number of long-established decisions have discussed, quite extensively, several of these factors, including the two that deserve special attention in the present circumstances—plausible justification, and confidentiality or constitutional interests that a person in Renteria’s position might have. In other words, as these and related cases demonstrate, the Alhambra framework is built upon a firm foundation, and the Alhambra decision itself is innovative only in the sense that it collected these principles in a handy list.”

CONSTITUTIONAL LAW/POLICE CONDUCT

1. Police officers’ use of deadly force was reasonable where driver attempting to flee ignored commands to stop and drove near, toward, and amongst the officers.

Monzon v. City of Murrieta, 2020 U.S. App. LEXIS 22859 (9th Cir. July 22, 2020)

Facts: In October 2016 early one morning at about 1:45 a.m., Officer Chris Zeltner ran the license plate of a van, discovering that the van was reported stolen. Junef Monzon was driving the van. Jerrico Reyes sat in the back of the van, although Zeltner did not know of the passenger’s presence. Zeltner informed dispatch that he planned to make a felony stop, and dispatch sent additional officers to assist him. Zeltner attempted to pull Monzon over, but Monzon did not stop, leading Zeltner on a car chase. Officers Scott Montez and Blake Williams joined the chase in a cruiser. Officers Kyle Mikowski and Zack Bradley, each drove separately in their vehicles as they joined the pursuit. The officers testified that Monzon swerved back and forth on the freeway, drove at speeds reaching up to 100 miles per hour, exited and reentered the freeway, and ran stop signs and stoplights.

At about 1:57 a.m., Monzon turned onto a dead-end street with no lights. The five officers in four vehicles turned in behind him. The officers were alerted over the radio that the street came to a dead-end and to use precautions. The events that follow occurred over an approximately two-minute period after the officers turned onto the dead-end street behind Monzon.

Monzon stopped the van at the end of the street. Zeltner stopped his cruiser behind Monzon near the van’s rear bumper. Bradley staggered his vehicle behind Zeltner on the right side of the road. Mikowski stopped on the left side of the street behind Bradley. Williams and Montez staggered their vehicle behind and to the right of Mikowski’s vehicle. Zeltner and Mikowski had activated the red and blue lights on their vehicles along with their headlights.

Soon after the officers parked, Monzon conducted a multi-point turn so that his vehicle was facing the officers on the street as well as their four parked vehicles. While Monzon was turning, Zeltner exited his vehicle, presented his firearm, and shouted for Monzon to stop and put his hands in the air. Reyes, the passenger in the van, testified that Monzon put his hands in the air at this point, but Reyes agreed that the van continued to turn and move forward. When the van was about 10 to 15 feet away from Zeltner, arcing near and around him in a counterclockwise motion, Zeltner fired his first shot at Monzon. As the van continued to move past Zeltner and toward the officers behind him, Zeltner fired five more shots at Monzon, aiming through the driver’s side window. The van passed to the left of Zeltner and his cruiser, headed in the general direction of the other officers and their vehicles.

Bradley had also exited his vehicle and moved toward the rear of Zeltner’s cruiser as Monzon was turning his van around. About a second after Zeltner stopped shooting and the van accelerated past Zeltner and Bradley, the van continued turning toward Mikowski and Williams, who were now on foot on the driver’s side of the third cruiser. Bradley fired multiple shots at Monzon when he saw the van driving toward Mikowski and Williams. The van turned so that, at least at one point, it was headed directly toward Mikowski and Williams, and then was headed for the gap between the second (Bradley’s) and third (Mikowski’s) cruisers. Missing the gap, the van struck Mikowski’s cruiser, pushing it into Williams, who was standing near the rear driver’s side window of the cruiser. The crash occurred with such force that Williams’s arm went through the cruiser’s window, injuring him. Williams fired 10 shots at Monzon. Mikowski fired seven shots at Monzon aiming through the passenger side window and front windshield. Stopped, the van’s engine revved and its tires spun. Believing the van could drive over Mikowski or Williams, Bradley fired one more shot. Another officer also fired.

The entire time from when Monzon started moving toward the officers to when the van crashed into the cruiser was 4.5 seconds. During that brief period, the van accelerated repeatedly, with the accelerator pedal pushed from 84 to 99 percent, and reached a maximum speed of 17.4 mph. Although no officer gave a deadly force warning, it was undisputed that at least Officer Zeltner yelled “Stop!” before firing.

Once the van’s engine stopped revving, it slowly rolled backwards until Zeltner stopped it by jamming a skateboard under its tire. The officers again commanded Monzon to show his hands. When Monzon did not respond, Mikowski deployed a canine. The dog jumped into the van and bit Monzon on the head and right arm before being disengaged by Mikowski. About 20 seconds elapsed between the time that the canine was deployed and disengaged. The officers then discovered Reyes in the back of the van. They called for medical assistance and performed chest compressions on Monzon until the paramedics arrived. Monzon, who had been shot eight times, was pronounced dead at the scene.

Monzon’s parents and Reyes filed suit under 42 U.S.C. section 1983, claiming that the five named officers and additional unidentified officers violated Monzon’s and Reyes’ respective Fourth Amendment rights by using excessive force resulting in an unreasonable seizure and by denying Monzon medical care. They also sought to hold “managerial, supervisorial, and policymaking employees” of the City of Murrieta police department and the City of Murrieta (“City”) liable for failing to train their employees and for ratifying an unconstitutional custom, practice, or policy. The City and all of the named and unidentified officers (collectively, “defendants”) filed a motion for summary judgment on each of these claims, as well as additional state law claims.

The District Court granted the motion for summary judgment on all claims, finding that the use of deadly force was objectively reasonable under the circumstances. Monzon’s parents appealed the District Court’s order. Reyes did not appeal.

Held: On appeal, the officers asserted they were entitled to qualified immunity. The doctrine of qualified immunity protects government officials from liability for civil damages insofar as their conduct does not violate clearly established constitutional rights. See Pearson v. Callahan, 555 U.S. 223, 231 (2009) (quoting in part Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)). The Ninth Circuit Court of Appeals first considered whether the officers actually violated a constitutional right based on the record and plaintiffs’ alleged facts.

While the Court acknowledged that it must view the disputed evidence in favor of plaintiffs,[1] the Court explained that it must view the specific use of force “from the perspective of a reasonable officer on the scene, rather than with the 20/20 vision of hindsight.” Graham v. Connor, 490 U.S. 386, 396. When “the officer has probable cause to believe that the suspect poses a threat of serious physical harm, either to the officer or to others, it is not constitutionally unreasonable to prevent escape by using deadly force.” Tennessee v. Garner, 471 U.S. 1, 11 (1985). To assess reasonableness, courts consider the “severity of the crime at issue, whether the suspect poses an immediate threat to the safety of the officers or others, and whether he is actively resisting arrest or attempting to evade arrest by flight.” Wilkinson v. Torres, 610 F.3d 546, 550 (9th Cir. 2010) (quoting Graham, 490 U.S. at 396).

The Ninth Circuit concluded that the officers’ use of deadly force was reasonable under Garner and Graham. First, the severity of the crime weighed in favor of the use of force. Monzon led officers on a dangerous high-speed chase at night, and he refused the command of officers to stop the van even after Monzon came to the end of a street. Second, Monzon posed an immediate threat to the safety of the officers when he ignored commands to stop the van and drove near, toward, and amongst the officers on foot. The Court declared that these actions also demonstrated that Monzon was actively resisting arrest and attempting to evade arrest by flight. Third, Monzon’s driving endangered the officers and left them with only seconds to consider less severe alternatives.

The Court explained that in these brief few seconds, the officers were faced with a reckless driver who had already endangered their lives and the lives of the public with a high-speed chase, had broken traffic laws, ignored commands to stop his vehicle, and steered and accelerated his van toward them in close quarters on an unlit street. Then Monzon deliberately turned his car around and drove it toward and between five officers, creating the dynamic and quickly changing circumstances that the officers faced. Reading the record in the light most favorable to the plaintiffs, the Court explained that the urgency of the situation made a deadly force warning impractical because the van went from a standstill to crashing into a cruiser at over 17 mph in 4.5 seconds. Moreover, while Monzon allegedly raised his hands, Monzon was still driving and turning his car toward the officers (after having just hit a fence post and finishing a high-speed chase). The Court found that in that circumstance, it was objectively reasonable for the officers to believe that whatever else Monzon was doing, he was not surrendering. The Court concluded that a reasonable officer in the position of Zeltner, Mikowski, Williams, Montez, or Bradley would have probable cause to believe that Monzon posed an immediate threat to the safety of one or more of the other officers or himself as Monzon drove his car toward and among the five officers.

The Court also found reasonable the officers’ actions in firing immediately after Monzon crashed the van into the cruiser, noting that the van crashed with enough force to push the cruiser into one of the officers, driving his arm though the cruiser’s window. Moreover, the officers, who were now situated on all sides of the van, could hear the engine revving. The Court explained that it was not unreasonable for the officers in that situation to believe that Monzon must be stopped after this second impact (after hitting the fence post) before he drove the van into one of them. The Ninth Circuit also noted that he drove his van amongst the officers and directly toward some of them. The Court explained: “In this chaotic situation spanning a mere 4.5 seconds, the officers that Monzon did not drive directly toward were justified in using deadly force to protect the lives of their fellow officers that Monzon was driving toward.”

Moreover, the officers were aware that the van headed in their direction could accelerate dangerously and without notice at any moment. The Court observed that the black box evidence revealed that the van’s acceleration pedal was repeatedly pressed down between 80 and 99 percent during the 4.5 seconds from start to impact, and the van reached a speed of over 17 mph before hitting Mikowski’s cruiser. The Court concluded that Monzon was obviously accelerating, and added, “even a van traveling at only 10 mph moves approximately 15 feet every second, which is significant when a van that has been driven erratically is moving in close proximity to officers.” As in Wilkinson, the Ninth Circuit determined here that the officers’ actions were reasonable.[2]

Although the Ninth Circuit found that no constitutional right had been violated, the Court nevertheless considered the second prong of the qualified immunity analysis, whether the constitutional right purportedly violated was “clearly established.” The Court found no existing precedent that would clearly put a reasonable officer on notice that using deadly force against Monzon under the circumstances of this case would violate Monzon’s rights. Therefore, the plaintiffs could not overcome qualified immunity even if the Court had determined that the officers had acted unreasonably.

The Ninth Circuit also determined that because the officers acted in an objectively reasonable manner, summary judgment was properly granted to defendants with respect to the plaintiffs’ Section 1983 claims and state law claims. The Court accordingly affirmed the District Court’s grant of summary judgment in favor of defendants.

For a more detailed discussion of this case, please see Client Alert Vol. 35, No. 25, available at www.jones-mayer.com.

1. Defendant’s electronics search probation condition reasonable because cell phones are frequently used in transporting drugs and defendant was arrested for transporting drugs.

People v. Castellanos, 51 Cal. App. 5th 267 (6th Dist. 2020)

Facts: A police officer stopped Frank Jonathan Castellanos for speeding. Castellanos’ girlfriend was a passenger in the car. The officer saw three cell phones in the center console. Castellanos admitted two of the phones were his. After a K9 search of the car, the officer found a package of 329.9 grams of cocaine in the trunk. Castellanos admitted he was transporting the cocaine to someone in Salinas. In the passenger’s purse, the officer found a package of 4.1 grams of cocaine, seven Ecstasy pills, a glass pipe, and $83 in currency. She admitted the drugs in the purse were hers and she said she intended to sell them. According the probation report, “She stated that investigators would locate[] messages from people asking to buy cocaine,” but the report did not make clear whether this statement referred to messages on Castellanos’ phones.

Castellanos pled no contest to transporting a controlled substance[3] in March 2018. He signed and initialed a plea form purportedly waiving “all rights regarding state and federal writs and appeals,” including “the right to appeal [his] conviction, the judgment, or any other orders previously issued by this court.” In the plea colloquy, the trial court asked Castellanos if he gave up those rights, and he answered affirmatively.

The trial court granted a three-year term of probation in April 2018. The court imposed an electronic search probation condition requiring Castellanos to provide law enforcement with access to any electronic device, including all passwords to any social media accounts and applications. Castellanos protested the condition as overbroad. The trial court overruled the objection. After Castellanos requested a certificate of probable cause to challenge the electronic search condition, the trial court eventually granted his request.

Held: After Castellanos filed his opening brief in the instant case, the California Supreme Court struck down a similar electronic search condition as overbroad in In re Ricardo P. (2019) 7 Cal.5th 1113. Castellanos then contended on appeal to the California Sixth District Court of Appeal that the electronic search condition was unconstitutionally overbroad under the test formulated in People v. Lent (1975) 15 Cal.3d 481 as applied by Ricardo P. at p. 1128. The Attorney General argued that Castellanos expressly waived the right to bring this claim, requiring the Sixth District to dismiss Castellanos’ appeal.

The Sixth District explained that the touchstone in considering the validity of a waiver is whether the waiver was voluntary, intelligent, and knowing. (Edwards v. Arizona (1981) 451 U.S. 477, 482.) This requires actual knowledge of the rights being waived. (People v. Vargas (1993) 13 Cal.App.4th 1653.) The Sixth District observed that Castellanos’ claim relied on a subsequent change in law, because the Supreme Court did not file Ricardo P. until after Castellanos had filed his appeal. Because Castellanos’ claim relied on a post-waiver change in the law, the Court held that Castellanos did not enter a knowing and voluntary waiver of the right to appeal from the challenged probation condition. (People v. Wright (2019) 31 Cal.App.5th 749.)

Turning to the merits of the claim, the Sixth District explained that a condition of probation will not be held invalid unless it: (1) has no relationship to the crime of which the offender was convicted; (2) relates to conduct which is not in itself criminal; and (3) requires or forbids conduct which is not reasonably related to future criminality. (Lent, supra, 15 Cal.3d at p. 486.) All three prongs must be found before a reviewing court will invalidate the condition. (People v. Olguin (2008) 45 Cal.4th 375, 379.) The Court noted that the third prong, relating to future criminality, “contemplates a degree of proportionality between the burden imposed by a probation condition and the legitimate interests served by the condition.” (Ricardo P., supra, 7 Cal.5th at p. 1122.) This prong “requires more than just an abstract or hypothetical relationship between the probation condition and preventing future criminality.” (Id. at p. 1121.)

The Court concluded that the search condition was not overbroad because the relationship between drug distribution under Health & Safety Code section 11352 and the use of cell phones or electronic devices was more than abstract or hypothetical, given that police found three cell phones in the car and Castellanos admitted that two were his. The Court also rejected Castellanos’ contention that the probation condition was unconstitutionally vague. The Court explained that the express language of the probation condition made clear that Castellanos must provide access to his cell phones or electronic devices and “provid[e] all passwords to any social media accounts and applications upon request.” The condition did not require him to open applications for the probation officer, and it limited the officer’s search to cell phones and electronic devices. The Court found this language sufficiently precise for Castellanos to know what was required of him, and for the court to determine whether he had violated the condition. The Sixth District Court of Appeal accordingly affirmed.

A dissenting judge declared that he would have dismissed the appeal without reaching the merits because he maintained that Castellanos voluntarily waived his right to appeal in his written plea agreement.

1. Assessment of probable cause takes into account the totality of the circumstances known to the officers at the time of the search.

United States v. Malik, 963 F.3d 1014 (9th Cir. 2020)

Facts: Nevada Highway Patrol Trooper Chris Garcia pulled over a tractor-trailer for speeding outside of Ely, Nevada. When he approached the tractor-trailer, Trooper Garcia smelled marijuana in the cab. The driver, Haseeb Malik, admitted he smoked a marijuana cigarette six to seven hours earlier in the day. Trooper Garcia subsequently radioed for backup and conferred with Trooper Adam Zehr about whether to search the cab of the tractor-trailer. Having decided to search the cab, Trooper Garcia re-approached the tractor-trailer, ordered Malik and his co-driver, Abdul Majid, out of the cab, and Terry[4] frisked both defendants. During the course of the Terry frisk, Malik changed his story, admitting that he smoked the marijuana cigarette three to four—rather than six to seven—hours earlier. During Trooper Garcia’s subsequent search of the cab, he discovered 135 pounds of cocaine and 114 pounds of methamphetamine.

After their arrest, Malik and Majid moved to suppress the narcotics, arguing Trooper Garcia lacked probable cause to search the cab and containers therein. The District Court granted the motion, finding that the trooper lacked probable cause to search the cab and containers therein. The Government appealed, contending that the District Court erred by failing to evaluate the totality of the circumstances known to Trooper Garcia prior to his search.

Held: The Ninth Circuit Court of Appeals observed that the “assessment of probable cause” must take into account “the totality of the circumstances known to the officers at the time of the search.” See United States v. Ped, 943 F.3d 427, 431 (9th Cir. 2019). The Court of Appeals noted that the District Court limited its analysis to whether Trooper Garcia had probable cause at the time he approached the cab with the intent to search it. During the Terry frisk of the defendants, however, Malik made statements contradicting his earlier story about when he had smoked the marijuana cigarette. The Ninth Circuit stated that the District Court erred in deciding not to include Malik’s contradictory statements in its totality of the circumstances analysis; therefore, the District Court failed to evaluate the totality of circumstances known to Trooper Garcia.

The Ninth Circuit found that the District Court’s failure to analyze the totality of the circumstances was part and parcel of its broader error: its focus on Trooper Garcia’s subjective motivations for performing the search. The Ninth Circuit explained that “Fourth Amendment reasonableness is predominantly an objective inquiry.” Ashcroft v. al-Kidd, 563 U.S. 731, 736 (2011) (emphasis added) (internal quotation marks omitted). Although administrative searches are an exception to this rule,[5] Trooper Garcia stopped the tractor-trailer because he reasonably suspected Malik was speeding. Unlike Orozco, which involved an officer’s decision to use his administrative search authority as pretext for an investigatory stop, id. at 1213-16, Trooper Garcia stopped the tractor-trailer as part of a criminal investigation supported by reasonable suspicion. The Ninth Circuit explained that his subjective motivations, therefore, were not relevant. See al-Kidd, 563 U.S. at 736.

The Court of Appeals next considered whether Trooper Garcia had probable cause to search the cab and containers therein for evidence of violations of Nevada law. The Court noted that although Nevada had decriminalized the possession of small amounts of marijuana, smoking or otherwise consuming marijuana “in a public place, . . . or in a moving vehicle” remained a misdemeanor in Nevada.[6] Nevada also continues to prohibit drivers from operating a vehicle while under the influence of marijuana.[7]

The Ninth Circuit noted that “officers are free to disregard either all innocent explanations, or at least innocent explanations that are inherently or circumstantially implausible.” (District of Columbia v. Wesby, 138 S. Ct. 577, 592 (2018).) Moreover, when a suspect changes his or her story, the officer can “reasonably infer[] that [the person being questioned is] lying and that their lies suggest[] a guilty mind.” (id. at 587.) Here, Malik admitted that he smoked a marijuana cigarette earlier that day, but told Trooper Garcia he had thrown out the remainder of the marijuana cigarette. The Court found that Trooper Garcia was entitled to rely on Malik’s admission in making the probable cause determination, and was not required to believe Malik’s statement about throwing out the remainder of the marijuana cigarette, especially in light of Malik’s changing story about when he smoked the marijuana cigarette.

The Ninth Circuit Court of Appeals concluded that Trooper Garcia had probable cause to search the cab and containers therein for evidence of violations of Nevada state law based on Malik’s admission and shifting story. The Court accordingly reversed and remanded.

1. A 911 call may generate reasonable suspicion if it is reliable and provides information on potentially serious illegal activity.

United States v. Vandergroen, 2020 U.S. App. LEXIS 21150 (9th Cir. July 7, 2020)

Facts: In February 2018, a 911 caller reported a man with a gun seen on his person. The caller, an employee at a bar in Concord, gave his name, identified his position at the bar, and indicated he was calling from the bar. He explained that three customers had told him they saw a man in the area with a pistol “on him.” The caller said he saw the man in the back parking lot and that the man had just walked into a neighboring bar. The caller described the man as “Latin,” “wearing a blue sweater with a Warriors . . . logo,” “skinny,” and in his early 20s, features that mostly matched those of defendant Shane Vandergroen. The caller next reported that the man had walked out of the neighboring bar and was in the parking lot next to the bar where the caller was. In response to the operator’s queries, the caller stated that the man had not been fighting, and that he would ask the patrons who reported the gun to him where the gun was located on the man. Before he could provide more information, however, the man started running through the parking lot. The caller reported the man’s movements, including that the man jumped into a black four-door sedan, a “Crown Vic.” The caller observed that the man was driving out of the parking lot, and told police officers arriving on the scene which car to follow. At the end of the call (“the 911 call”), the caller provided his full name and phone number.

In response to the 911 call, dispatch alerted officers that “patrons think they saw a HMA [Hispanic Male Adult] blu[e] warriors logo carrying a pistol.” Dispatch directed officers to the caller’s bar address and conveyed specifics from those that the caller had provided. Shortly thereafter, an officer reported over the dispatch “we’re gonna do a high-risk car stop.” The police then executed a stop of the man, later identified as Vandergroen. During this stop, the police conducted a search of Vandergroen’s car and found a loaded semi-automatic handgun under the center console to the right of the driver’s seat. An officer then arrested Vandergroen.

Vandergroen was charged with being a felon in possession of a firearm, in violation of 18 U.S.C. section 922(g)(1). Before trial, Vandergroen filed a motion to suppress evidence found in the course of his arrest, arguing in part that the 911 call did not generate reasonable suspicion justifying his initial stop. The District Court denied the motion. Vandergroen then requested that the case be set for a stipulated-facts bench trial, reserving the right to appeal the denial of the motion to suppress. After accepting the parties’ factual stipulations, the District Court adjudged Vandergroen guilty. Vandergroen appealed, arguing the 911 call should never have led to his stop in the first place because it did not generate reasonable suspicion, and that the evidence of the handgun should therefore have been excluded.

Held: The Ninth Circuit Court of Appeals explained that under the Fourth Amendment, an officer may conduct a brief investigative stop only where she has “a particularized and objective basis for suspecting the particular person stopped of criminal activity,” i.e., “reasonable suspicion.” Navarette v. California, 572 U.S. 393, 396-97 (2014) (citations omitted). While a tip such as the 911 call may generate reasonable suspicion, it can only do so when, under the “totality-of-the-circumstances,” it satisfies two criteria. United States v. Rowland, 464 F.3d 899, 907 (9th Cir. 2006) (citation omitted). First, the tip must exhibit sufficient indicia of reliability, and second, it must provide information on potential illegal activity serious enough to justify a stop. United States v. Edwards, 761 F.3d 977, 983 (9th Cir. 2014).

Regarding the first criteria regarding reliability, the Court observed that the caller (1) provided his name and employment position, which made him a known, and consequently more reliable, witness; (2) revealed the basis of his knowledge by explaining that multiple patrons informed him that a man had a gun on him, and by offering to ask follow-up questions to the patrons about the exact location of the gun – which enhanced the tip’s reliability; and (3) used a recordable, traceable emergency line to make his call. Moreover, despite the fact that the patrons themselves remained anonymous, their statements “exhibit[ed] ‘sufficient indicia of reliability’” to overcome this shortcoming. Florida v. J.L., 529 U.S. 266, 270 (2000) (quoting Alabama v. White, 496 U.S. 325, 327 (1990)). Their reports were based on fresh, first-hand knowledge, personally seeing the gun before reporting it to the caller. The anonymous patrons were still at the bar when the caller made the call. Lastly, there were multiple individuals who reported seeing the gun. The Court concluded that the totality of the circumstances here demonstrated that the 911 call was sufficiently reliable to support reasonable suspicion.

Turning to the second criteria for the tip, the Ninth Circuit explained that a tip must demonstrate that “criminal activity may be afoot,” id. (quoting Terry v. Ohio, 392 U.S. 1, 30 (1968)), and the absence of any presumptively unlawful activity from a tip will render it inadequate to support reasonable suspicion. In addition, any potential criminal activity identified must be serious enough to justify “immediate detention of a suspect.” United States v. Grigg, 498 F.3d 1070, 1080-81 (9th Cir. 2007).

Here, the Court determined that the 911 call gave the police reason to suspect Vandergroen was carrying a concealed firearm, which is presumptively a crime in California.[8] The caller indicated that patrons had seen Vandergroen with a gun “on him.” The Court stated that this language, conveyed to the police by the dispatcher, would suggest to a reasonable police officer that Vandergroen at least potentially had the gun concealed on his body. As such, the tip provided information on potentially illegal activity.

Moreover, the Court found that the potentially illegal activity identified in the 911 call was serious enough to justify the “immediate detention of [the] suspect.” Grigg, 498 F.3d at 1080. The Court explained that police had reason to suspect Vandergroen was committing an ongoing crime when stopped in his car because the crime of carrying a concealed weapon includes concealing the weapon in a car.[9] The Court added that the tip’s indication that Vandergroen was engaging in this continuing illegal activity meant that there was an ongoing danger and the immediate detention of Vandergroen was warranted.

The Court thus concluded that the 911 call in this case was both reliable and provided information on potentially criminal behavior. The 911 call generated reasonable suspicion justifying the stop and the District Court was correct to deny Vandergroen’s motion to suppress the evidence obtained during the stop. Accordingly, the Ninth Circuit affirmed.

1. Police officer’s request to ping defendant’s cell phone to find his location without warrant did not violate Fourth Amendment because exigent circumstances existed.

People v. Bowen, 52 Cal. App. 5th 130 (1st Dist. 2020)

Facts: In March 2017, Quentin Bowen visited another man, Dennis N., during the daytime at Dennis N.’s mobile home located approximately 200 yards from a preschool. Dennis N. had been taking care of Bowen’s dog and Bowen wanted to see his dog. A violent dispute ensued where Bowen repeatedly stabbed Dennis N.

According to the testimony of Officer Adams, he was dispatched at 3:37 p.m. to a stabbing incident. He initially spoke with two witnesses at a preschool behind a shopping center who told him an older man who was bleeding from his neck said he had been stabbed. They also told Officer Adams they saw another man walking away through a nearby field. Officer Adams testified that he then spoke with Officer Cadaret at the scene of the stabbing, and learned Dennis N. had been repeatedly stabbed in the neck in an unprovoked attack. The victim told the officers that the suspect’s dog had a tag with the suspect’s cell phone number. Dennis N. was taken to the hospital, where he was treated for eight stab wounds, and survived.

At 4:19 p.m., on the way to the hospital, Officer Adams called police dispatch and asked if the dispatcher could obtain a ping from the suspect’s cell phone. Officer Adams explained “it was imperative” that police find the suspect because “[t]he suspect had just been involved in a very violent crime. The victim was brutally stabbed multiple times, seemingly unprovoked, from the information we had. This took place literally less than 200 feet away from a preschool that was—my witnesses were there to pick up their kids, so the preschool was letting out. It’s broad daylight in the middle of the afternoon on Friday, and it’s right near a large shopping center. There’s multiple neighborhoods in the area. The suspect was last seen walking away … still possibly armed. And based on the totality of the circumstances, I didn’t want anybody else to possibly be the victim.” Officer Cadaret also testified at the motion to suppress hearing that the police and a police dog attempted to locate Bowen but were unsuccessful before receiving the cell phone ping location information.

At 5:57 p.m., the police learned from dispatch that the suspect’s cell phone had pinged on the Santa Rosa Creek Trail east of Willowside Road. Once the police learned the location information, additional officers and resources, including a helicopter, converged on the trail to search the area. At 7:18 p.m., they found Bowen walking on the trail wearing a backpack, a jacket, and no shirt. Bowen was arrested. His cell phone, backpack, and several knives were seized. He had blood on his right ear, and DNA tests confirmed the blood was consistent with both Bowen’s and Dennis N.’s.

The Sonoma County District Attorney filed an information charging Bowen with attempted murder and other charges, and alleged enhancements. Bowen filed a motion to suppress the knife evidence seized from his backpack on the grounds that the police failed to obtain a warrant before having Bowen’s service provider ping his cell phone to locate him. The People argued the warrantless cell phone ping was justified by exigent circumstances and the officers’ good faith reliance on Penal Code section 1546.1.[10] The trial court denied the motion, finding Officer Adams acted in good faith responding to a violent and serious situation near a preschool that needed immediate remediation.

In March 2018, a jury found Bowen guilty of one count of attempted murder committed willfully, deliberately and with premeditation, with a great bodily injury enhancement and a personal knife use enhancement, and one count of assault with a deadly weapon, with a great bodily injury enhancement. Bowen was sentenced to prison. His overall prison sentence was seven years to life consecutive to a determinate term of four years. Bowen appealed the trial court’s denial of his motion to suppress.

Held: On appeal, Bowen argued the knives should have been excluded from evidence because they were the product of a warrantless search in which the police requested that his mobile service provider “ping” his phone and provide location data. Bowen conceded that the trial court was correct in finding that the ping of his cell phone was a search but argued no exception to the warrant requirement applied.

The California First District Court of Appeal explained that a long-recognized exception to the Fourth Amendment’s warrant requirement exists when exigent circumstances make necessary the conduct of a warrantless search. “‘[E]xigent circumstances’ means an emergency situation requiring swift action to prevent imminent danger to life or serious damage to property, or to forestall the imminent escape of a suspect or destruction of evidence. [A determination of] whether such circumstances exist […] must be measured by the facts known to the officers.” (People v. Panah (2005) 35 Cal.4th 395, 465.) The Court added that the reasonableness of the officers’ conduct depends upon whether facts available at the moment of the search support a reasonable belief that the action taken was appropriate.

Here, the Court observed that at the time Officer Adams requested a ping of Bowen’s cell phone, the information available to him was that less than an hour earlier Dennis N. had been repeatedly stabbed in the neck in an unprovoked attack, within 200 yards of a preschool and near a shopping center and multiple neighborhoods. Further, the suspect, who was possibly still armed with a knife, had fled on foot. The area where the witnesses indicated Bowen had headed was a several-hundred-yard field with multiple entrances and exits leading to a creek trail, houses and apartment complexes, and a store; and there were “hundreds of people moving about” the area. The police were actively looking for Bowen when they received the cell-site location information, or CSLI. The Court stated that based upon the circumstances known to Officer Adams, he believed it was imperative that the suspect be found as soon as possible to prevent another possible unprovoked attack. The Court found the trial court was correct in determining that the exigent circumstances exception applied under the facts of this case. The First District therefore concluded Bowen’s motion to suppress was properly denied, and accordingly affirmed.

1. District Court erred by concluding that probable cause determination made by Nevada state court at preliminary hearing precluded plaintiff’s federal lawsuit against defendants for lack of probable cause.

Scafidi v. Las Vegas Metro. Police Dep’t, 2020 U.S. App. LEXIS 23088 (9th Cir. July 23, 2020)

Facts: Marino Scafidi was charged with three counts of sexual assault under Nevada law. During the proceedings that followed, Nevada state courts suppressed evidence seized pursuant to a search warrant, and determined that the police failed to preserve potentially exculpatory evidence. Ultimately, all charges were dismissed pursuant to a motion by the State.

Scafidi subsequently brought a federal civil rights claim[11] under 42 U.S.C. section 1983 against the Las Vegas Metro Police Department (“LVMPD”), five officers, a crime scene investigator, and the nurse who performed a sexual assault exam on the alleged victim. He contended that the Las Vegas police officers staged an incriminating crime scene photo by moving his sleeping medications from the hotel bathroom drawer into a mint container by his clothes in the bedroom; falsely stated in a warrant application that the alleged victim’s sexual assault exam revealed sexual assault when it in fact only revealed sexual intercourse; threatened him for asserting his constitutional rights; and made racially derogatory remarks to him.

The District Court concluded that the probable cause determination made by the Nevada justice of the peace at a preliminary hearing precluded Scafidi from asserting in his federal suit that the defendants lacked probable cause to arrest and detain him. In the District Court’s view, the existence of probable cause necessarily meant that Scafidi’s federal causes of action failed. The District Court consequently granted summary judgment to the defendants. Scafidi appealed.

Held: The Ninth Circuit Court of Appeals first observed that when the Circuit Court adjudicates a state-law claim, its task “is to approximate state law as closely as possible in order to make sure that the vindication of the state right is without discrimination because of the federal forum. In doing so, federal courts are bound by the pronouncements of the state’s highest court on applicable state law.”[12] On issues of state law, the Court explained, it was not bound by its own prior opinion where an intervening decision from a state court of last resort had “undercut the theory or reasoning underlying the prior circuit precedent in such a way that the cases are clearly irreconcilable.” Miller v. Gammie, 335 F.3d 889, 900 (9th Cir. 2003) (en banc).

The Court acknowledged that “federal courts must ‘give to a state-court judgment the same preclusive effect as would be given that judgment under the law of the State in which the judgment was rendered.’” Rodriguez v. City of San Jose, 930 F.3d 1123, 1130 (9th Cir. 2019) (quoting Migra v. Warren City Sch. Dist. Bd. of Educ., 465 U.S. 75, 81 (1984)); 28 U.S.C. section 1738. Issue preclusion, or collateral estoppel, “bars successive litigation of an issue of fact or law actually litigated and resolved in a valid court determination essential to the prior judgment.” Rodriguez, 930 F.3d at 1130 (quoting White v. City of Pasadena, 671 F.3d 918, 926 (9th Cir. 2012)). As long as a litigant had a full and fair opportunity to litigate the issue, collateral estoppel under 28 U.S.C. section 1738 based on state-court criminal proceedings applies to subsequent civil litigation under 42 U.S.C. section 1983.

The Ninth Circuit had previously held that under Nevada law, a probable cause determination in a preliminary hearing has preclusive effect in a subsequent suit. Haupt v. Dillard, 17 F.3d 285, 288-89 (9th Cir. 1994). The District Court had relied on Haupt in concluding that Scafidi was collaterally estopped from relitigating whether there was probable cause for his arrest, detention, and prosecution. However, the Circuit Court here noted that after Haupt was decided, but before the District Court issued its order in this case, the Nevada Supreme Court recognized that a probable cause determination in a preliminary hearing does not preclude a plaintiff from litigating that issue in a subsequent suit. Jordan v. State ex rel. Dep’t of Motor Vehicles & Pub. Safety, 121 Nev. 44, 110 P.3d 30, 48-49 (Nev. 2005), overruled on other grounds by Buzz Stew, LLC v. City of N. Las Vegas, 124 Nev. 224, 181 P.3d 670 (Nev. 2008). (Emphasis added.) The Ninth Circuit determined that under Jordan, the preliminary hearing probable cause determination was only prima facie evidence of probable cause, which could be overcome in a later proceeding with evidence of “false testimony or suppressed facts.” Id. at 49 & n.65. The Court observed that the Nevada standard articulated in Jordan was in accord with the standard under California law that the Ninth Circuit had previously expressed in Awabdy v. City of Adelanto, 368 F.3d 1062 (9th Cir. 2004).

Here, Scafidi contended in the District Court that the police defendants misrepresented the results of the alleged victim’s sexual assault exam on a warrant affidavit, manipulated the crime scene to make it look like he had drugged the alleged victim, and falsely accused him in the police report of having drugged her. The Court concluded that under Jordan, Scafidi’s allegations of “fabricated evidence, or other wrongful conduct undertaken in bad faith” created a triable issue of material fact as to probable cause. Jordan, 110 P.3d at 49 n.65 (2005) (quoting Awabdy, 368 F.3d at 1067)). Because Jordan, not Haupt, controlled this appeal, the Ninth Circuit reversed the District Court’s order as to Scafidi’s federal claims under Section 1983.

1. Once a suspect has clearly and sufficiently invoked his right to counsel, police may not resume questioning until counsel is provided.

People v. Henderson, 2020 Cal. LEXIS 4869 (July 30, 2020)

Facts: In June 1997, Paul Nathan Henderson entered the Cathedral City mobile home of Reginald and Peggy Baker and said, “‘Don’t yell or scream and no one will get hurt.’” He held a knife to Reginald’s throat, demanded their car keys, and bound the victims. Henderson took their money that he found in a can. Peggy pleaded for Henderson to remove 71-year-old Reginald’s gag, afraid that Reginald would be unable to breathe and suffer a heart attack. Henderson refused and ordered Peggy to put a gag in her mouth. Henderson put his arm around Peggy’s neck and “tried to crack” her neck, and then struck her head, knocking Peggy to the ground. Peggy pretended she was dead, going limp when Henderson lifted her arm. He covered her with a sheet and departed in the Bakers’ car. Peggy checked on Reginald, who appeared to be dead. Responding officers found Reginald’s body in the ransacked residence, with a neck would from a four-inch cut about one-third of an inch deep. The wound did not sever any major veins or arteries. An autopsy revealed that Reginald’s severe heart disease, exacerbated by the stress of the attack, resulted in cardiac arrest.

Henderson was arrested in the early morning of July 5, 1997. About five hours later, Detective Wolford and Officer Herrera of the Cathedral City Police Department interviewed him. Henderson was read his Miranda[13] rights and waived them both orally and in writing. The officers said they were investigating crimes committed against the Bakers at the trailer park on the day on June 22, 1997 and asked what he was doing that evening. Henderson was reluctant to disclose his whereabouts. After a series of questions, Henderson admitted being in Cathedral City. When asked if he went to the trailer park, the following exchange occurred:

“[Henderson:] Uhm, there’s some things that I, uhm, want uh …

“Det. Wolford: Did you go into the trailer park, that night?

“[Henderson:] [Want,] uh, want to, speak to an attorney first, because I, I take responsibility for me, but there’s other people that …

“Officer Herrera: What do you …

“[Defendant:] … I need to find out …

“Officer Herrera: Paul.

“[Defendant:] … I need to find out.

“Officer Herrera: Paul, what do you accept responsibility for?

“[Defendant:] (No response)”

The officers subsequently asked Henderson several times how he took responsibility during the subsequent questioning, but Henderson was not provided an attorney. Eventually, Henderson admitted to committing the crimes.

The trial court denied Henderson’s motion to exclude his statements from evidence, finding that he validly waived his Miranda rights and did not invoke his right to counsel later in the interview. Henderson was convicted of the first degree murder of Reginald Baker, with special circumstances of commission during a robbery and burglary and an enhancement for personal use of a deadly weapon. He was also convicted of attempted deliberate and premeditated murder of Peggy Baker and other related offenses. The jury returned a verdict of death, and the trial court imposed that sentence along with a separate term of life with the possibility of parole for the attempted murder and a determinate term of 15 years on the remaining counts and enhancements. An automatic appeal followed.

Held: On appeal, Henderson did not challenge his initial Miranda waiver. He argued, however, that the officers violated Edwards v. Arizona (1981) 451 U.S. 477 by continuing to question him after he invoked his right to counsel.

The Supreme Court of California explained that a defendant who has waived his Miranda rights may reinvoke them during the interrogation. If he clearly and unequivocally does so, police must stop questioning. (Edwards, supra, 451 U.S. at pp. 478–479, 482, 485; Miranda, supra, 384 U.S. at pp. 473–474.) Once a suspect has invoked his right to counsel, police may not resume questioning until counsel is provided or the suspect himself reinitiates contact. (Edwards, at pp. 484–485; accord, People v. Gamache (2010) 48 Cal.4th 347, 384.) “Edwards set forth a ‘bright-line rule’ that all questioning must cease after an accused requests counsel. [Citation.] In the absence of such a bright-line prohibition, the authorities through ‘badger[ing]’ or ‘overreaching’—explicit or subtle, deliberate or unintentional—might otherwise wear down the accused and persuade him to incriminate himself notwithstanding his earlier request for counsel’s assistance.” (Smith v. Illinois (1984) 469 U.S. 91, 98.)

The Supreme Court noted that “[i]n order to invoke the Fifth Amendment privilege after it has been waived, and in order to halt police questioning after it has begun, the suspect ‘must unambiguously’ assert his right to silence or counsel.” (People v. Stitely (2005) 35 Cal.4th 514, 535, quoting Davis v. United States (1994) 512 U.S. 452, 459.) The suspect must express his desire for counsel with sufficient clarity “that a reasonable police officer in the circumstances would understand the statement to be a request for an attorney.” (Id. at p. 459.) “[A]fter a suspect makes a valid waiver of the Miranda rights, the need for effective law enforcement weighs in favor of a bright-line rule that allows officers to continue questioning unless the suspect clearly invokes the right to counsel or right to silence.” (People v. Nelson (2012) 53 Cal.4th 367, 377.)

The Court explained that, although various cases had held that a suspect’s use of equivocal words or phrases does not constitute a clear request for counsel’s assistance,[14] Henderson did not use such equivocal language here. The Court found that Henderson clearly stated, “[I] want to, speak to an attorney first,” and twice emphasized, “I need to find out.” Henderson tried to speak further, but Officer Herrera spoke over him.

The Supreme Court explained that there was “nothing inconsistent or ambiguous about wanting to speak to an attorney before taking responsibility, and defendant made clear that he wanted to speak to an attorney ‘first.’ One can take responsibility in ways other than giving an uncounseled confession to the police.” The Court added that Henderson’s silence and reticence before and immediately after his invocation saying he needed to find out did not validate the People’s argument that a reasonable officer could believe that Henderson was willing to continue the interview notwithstanding his request for counsel.

The Supreme Court expressed that the officers brushed aside a clear invocation, and that under Edwards, the officers were required to stop the interrogation once defendant unequivocally requested counsel. (Edwards, supra, 451 U.S. at pp. 484–485.) Because they did not stop the interrogation at that point, the Court found that Henderson’s post-assertion statements in response to the officers’ continued questioning did not amount to a valid waiver of the right to counsel that he had invoked. (Id. at p. 487.) Accordingly, the Court concluded his statements were inadmissible as substantive evidence at trial in light of Miranda and Edwards.

Moreover, the Court explained that it could not conclude that the erroneous admission of Henderson’s statements was harmless beyond a reasonable doubt as to any of the jury’s findings because Henderson’s admissions were the “centerpiece of the prosecution’s case,”[15] offered to prove he was the assailant.

Accordingly, the Supreme Court of California reversed the trial court’s judgment in its entirety and remanded ­­­for further proceedings.

PUBLIC EMPLOYMENT

1. The California Supreme Court upholds the “California Rule” in case of Alameda County Deputy Sheriff’s Association v. Alameda County Employees’ Retirement Association.

Alameda Cnty. Deputy Sheriff’s Ass’n v. Alameda Cnty. Employees’ Ret. Ass’n, 2020 Cal. LEXIS 4870 (July 30, 2020)

Facts: The California Supreme Court recently reviewed the validity of the “California Rule” in the context of this case. The California Public Employees’ Pension Reform Act of 2013 (“PEPRA”; Stats. 2012, ch. 296, section 1) substantially revised the laws governing the pension plans of the state’s public employees. At issue in the case facing the Supreme Court here was a provision of PEPRA that amended the County Employees Retirement Law of 1937 (“CERL”; Government Code section 31450 et seq.).

CERL governs the pension systems maintained by many of the state’s counties.[16] Each county system is administered by its own retirement board, which is tasked with implementing CERL’s provisions. Under CERL, the amount of an employee’s pension benefit is determined as a percentage of the “compensation earnable” received by the employee during a representative year of county employment. Even prior to PEPRA, CERL expressly excluded overtime pay from compensation earnable and limited the inclusion of payments from a deferred compensation plan. The PEPRA provision at issue in Alameda amended CERL’s definition of compensation earnable to exclude or limit the inclusion of additional types of compensation in order to prevent perceived abuses of the pension system that resulted in “pension spiking.” Although this amendment applies to the calculation of the pensions of all employees covered by CERL, the parties in the case here agreed that the issues raised here related only to the amendment’s impact on the pensions of persons who were first employed by a county prior to the effective date of PEPRA, referred to as “legacy employees.”

Three separate lawsuits were filed by organizations representing employees of Alameda, Contra Costa, and Merced Counties. Among the plaintiffs in these actions, only those in the Alameda County action[17] petitioned the Supreme Court for review of the First District Court of Appeal’s decision.[18]

The plaintiffs’ challenge to PEPRA’s amendment of CERL raised two sets of issues. First, the Alameda County Deputy Sheriff’s Association (“Association”) and its co-plaintiffs (collectively, “Plaintiffs”) contended that employees in the three counties involved had a contractual right to receive pension benefits calculated without regard to PEPRA’s changes, a right based either on (1) agreements in effect when PEPRA was enacted or (2) application of the doctrine of equitable estoppel.

The Court observed that, long before PEPRA was passed, employees in each of these counties had entered into litigation settlement agreements with their respective retirement boards that specified the types of compensation included in compensation earnable. In some cases, the provisions added by PEPRA conflicted with the terms of these agreements, excluding or restricting items of compensation that the agreements required to be included in compensation earnable.

Plaintiffs argued that these agreements conferred on existing employees the contractual right to continue to include these items of compensation in their pensionable compensation, notwithstanding their exclusion by the provisions added by PEPRA, or, alternatively, that the counties were equitably estopped from implementing the PEPRA amendment in a manner inconsistent with the agreements. In turn, Central Contra Costa Sanitary District (“District”) and the State of California (“State”) (collectively, “Defendants”) countered that the retirement boards were required to implement the provisions of CERL, including PEPRA’s amendment, notwithstanding any contrary agreements they might have entered into with county employees.[19]

As an entirely distinct argument, Plaintiffs also argued that county employees who began their work prior to PEPRA’s enactment had a constitutional right to receive pension benefits calculated according to the law as it existed prior to PEPRA. Supreme Court precedents since the 1950’s had granted constitutional protection to public employee pension plans. Under the “California Rule,” the contract clause of the California Constitution requires any modification of public employee pension plans to satisfy a standard established in a long line of California Supreme Court decisions, including most prominently Allen v. City of Long Beach (1955) 45 Cal.2d 128 (“Allen I”).

In determining the constitutional validity of a modification to a public employee pension plan, the Court noted that Allen I requires a court first to decide whether the modification imposes disadvantages on affected employees, relative to the preexisting pension plan, and, if so, whether those disadvantages are accompanied and offset by comparable new advantages. Assuming the disadvantages are not offset in this manner, the court must then determine whether the agency’s purpose in making the changes was sufficient, for constitutional purposes, to justify an impairment of pension rights. Public employee pension plans may be modified “for the purpose of keeping [the] pension system flexible to permit adjustments in accord with changing conditions and at the same time maintain the integrity of the system,” but to survive contract clause scrutiny, such changes “must bear some material relation to the theory of a pension system and its successful operation.” (Id. at p. 131.) Finally, assuming the changes occurred for a constitutionally permissible purpose, the Court stated that it interpreted Allen I to require the modification to provide comparable new advantages to public employees unless to do so would undermine, or would otherwise be inconsistent with, that proper purpose.

Plaintiffs contended that under the Constitution’s contracts clause, persons employed by a county at the time of PEPRA’s enactment possessed implied contractual rights in the pre-PEPRA terms of CERL that are protected against impairment. Because PEPRA’s amendment had the practical effect of diminishing some employees’ pension benefits without granting any comparable new advantages, Plaintiffs argued, its application to the pensions of existing employees was precluded by the California Rule. The Defendants responded that (1) PEPRA’s amendment did not trigger constitutional scrutiny because its provisions constituted a clarification, rather than a modification of CERL, and, alternatively, (2) any changes met the requirements of the California Rule.

Held: The Supreme Court of California first examined the ordinary contract issues, stating that county employees have no express contractual right to the calculation of their pension benefits in a manner inconsistent with the terms of the PEPRA amendment. The Court explained that because the county retirement boards are required to implement CERL as enacted by the Legislature, the litigation settlement agreements, which were silent on this issue, must be interpreted to permit the modification of board policies to accommodate statutory changes to CERL. The Court also concluded that Plaintiffs failed to demonstrate the elements necessary for the invocation of equitable estoppel. In particular, the Court found no evidence that the county boards made any representations regarding the continued enforceability of the terms of the settlement agreements in the event of inconsistent legislative changes to the controlling statutory provisions.

Turning to the constitutional question, the Court rejected Defendants’ threshold argument that no constitutional issue was presented here because the exclusions and limitations from compensation earnable imposed by PEPRA did not constitute a change in the law governing CERL pension benefits. Although the inclusion in compensation earnable of the elements of compensation excluded by PEPRA had not been specifically addressed when the amendment was enacted, either in CERL itself or its judicial interpretations, the Court found that the more general law of compensation earnable was sufficiently settled prior to PEPRA to justify treating the amendment as a change in the law for purposes of contract clause analysis.

In addressing the merits of Plaintiffs’ constitutional claim, however, the Supreme Court held that the challenged provisions added by PEPRA did meet contract clause requirements. The Court reasoned that the provisions were enacted for the constitutionally permissible purpose of closing loopholes and preventing abuse of the pension system in a manner consistent with CERL’s preexisting structure. The Court also found that to interpret the California Rule to require county pension plans either to maintain these loopholes for existing employees or to provide comparable new pension benefits that would perpetuate the unwarranted advantages provided by these loopholes would defeat the aforementioned permissible purpose.

The Supreme Court rejected the State and amicus curiae exhortations to conduct a fundamental reexamination of the California Rule. The Court explained that because it concluded that PEPRA’s amendment of CERL did not violate the contract clause under a proper application of the California Rule, the Court had “no jurisprudential reason to undertake a fundamental reexamination of the rule. Thus, the test declared in Allen I, “as explained and applied here,” remains the law of California.

The Supreme Court accordingly reversed the decision of the Court of Appeal and remanded the matter to that court, with directions to remand to the trial court to vacate the judgments entered in each of the three consolidated proceedings and to conduct further proceedings consistent with the Supreme Court’s decision.

For a more detailed discussion of this case, please see Client Alert Vol. 35, No. 24, available at www.jones-mayer.com.

1. Sheriff’s Department properly reassigned deputies based on the County’s ‘sole and exclusive right’ to reassign employees for reasons considered legitimate.

Cnty. of Fresno v. Fresno Deputy Sheriff’s Ass’n, 51 Cal. App. 5th 282 (5th Dist. 2020)

Facts: Greg Isaac and Kirby Alstrom were employed by the Fresno County Sheriff’s Office (the “Department”) as deputy sheriffs. For several years, each held a specialty assignment as a detective, which was a nonpatrol function. In April 2014, Isaac was informed by his sergeant that he was being reassigned from vice intelligence to patrol because of his tenure with the unit. In September, Alstrom’s sergeant told him he would be returning to patrol because some detectives had been in the specialty unit for a long time, and patrol deputies were complaining of the lack of opportunities to move into specialty assignments. Isaac and Alstrom both moved into their patrol assignments in December 2014.

Both deputies testified they did not believe they could be reassigned from their specialty assignments to patrol involuntarily, absent documented performance problems or grounds for discipline. Neither deputy had disciplinary nor documented performance problems; both had received positive performance evaluations. They did not consent to reassignment. Through the deputies’ bargaining representative, Fresno Deputy Sheriff’s Association (the “Association”), the deputies filed a grievance challenging their involuntary reassignment from their specialty assignments to patrol assignments. The deputies asserted the reassignments violated both a memorandum of understanding (“MOU”) between the County of Fresno (the “County”) and the Association, and an established past practice that deputies would not be involuntarily reassigned in the absence of disciplinary issues, documented performance issues, layoffs, or pending disability retirement. The administrative hearing of the grievance resulted in a decision in favor of the deputies.

The County filed a petition for a writ of mandate to reverse the decision, and the trial court granted the petition. The deputies and the Association appealed the trial court’s judgment.

Held: The California Fifth District Court of Appeal first observed that MOU’s are binding contracts and are interpreted in accordance with the general rules of contract interpretation. National City Police Officers’ Assn. v. City of National City (4th Dist. 2001) 87 Cal.App.4th 1274, 1279. The goal of contract interpretation, the Court explained, is to effectuate the mutual intent of the parties as it existed at the time of contracting insofar as it is ascertainable and lawful. (Id. at p. 1279.) “‘Such intent is to be inferred, if possible, solely from the written provisions of the contract. [Citation.] The “clear and explicit” meaning of these provisions, interpreted in their “ordinary and popular sense,” unless “used by the parties in a technical sense or a special meaning is given to them by usage” [citation], controls judicial interpretation. [Citation.] Thus, if the meaning a layperson would ascribe to contract language is not ambiguous, we apply that meaning.’” (Hervey v. Mercury Casualty Co. (2nd Dist. 2010) 185 Cal.App.4th 954, 961.)

The Court observed that Article 38 of the MOU, the management rights clause, provided, in part:

“A. All [c]ounty rights, powers, functions, and authorities except as expressly abridged by this MOU shall remain vested in the [c]ounty whether or not they have been exercised in the past. [¶] … [¶]

“H. The rights, powers, and authorities of the [c]ounty include, but are not limited to, the sole and exclusive right to: [¶] … [¶]

“4. select, train, direct, assign, demote, promote, layoff, dismiss its employees; [¶] … [¶]

“7. relieve its employees from duty or reassign employees because of lack of work or for other reasons the [c]ounty considers legitimate; [¶] … [¶]

“9. determine and change the method, means, personnel, [**16] and standards by which [c]ounty operations are to be conducted; [¶] … [¶]

“13. make rules and regulations pertaining to employees consistent with this MOU … .” (Italics added in the above.)

Summarizing Article 38, the Court stated: “Thus, on the face of the MOU, the County, with the agreement of the Association, reserved to itself all rights not expressly abridged by other provisions of the MOU; the MOU specifically granted the county the ‘sole and exclusive right’ to assign its employees, and to reassign them for reasons the county considered legitimate.”

The Fifth District agreed with the trial court that Article 38 granted the County the right to assign and reassign deputies, without limiting the reassignment right to cases of discipline, poor performance, and other such factors. The Court of Appeal therefore concluded that the Department did not violate the express written terms of the MOU by reassigning Isaac and Alstrom involuntarily, even in the absence of disciplinary issues, documented performance issues, layoffs, or pending disability retirement.

The appellants alleged that the MOU reserved to the County its reassignment rights “except as expressly abridged by this MOU,” and that a later Article – called the “zipper clause” – in the MOU expressly abridged those rights. The Fifth District disagreed, finding that the zipper clause did not contain any provisions limiting the county’s reassignment rights. The Court added that the function of a zipper clause is not to abridge or alter the substance of any of the other provisions to which the parties agreed in the MOU, but to prevent either party, for the duration of the MOU’s term, from unilaterally changing those provisions and from compelling renegotiation of the agreed-upon provisions, unless the parties agree to reopen negotiations.

The appellants also alleged that the parties had established a past practice that deputies would not be reassigned out of their specialty assignments except for specified reasons, and that the practice was unilaterally changed by the Department when Isaac and Alstrom were reassigned to patrol. Rejecting this claim, the Fifth District explained that the Association, by agreeing to the management rights clause, had agreed that the County had the sole and exclusive right to assign and reassign employees for reasons it considered legitimate, and to determine the procedures and standards for reassignment. The Department’s action in reassigning Isaac and Alstrom was consistent with these terms of the MOU. By granting the county this authority to reassign employees, the Court explained, the Association made a clear and unmistakable waiver of its right to renegotiate the grounds on which the County was permitted to reassign its employees, and the procedures for doing so, during the term of the MOU. The Court thus concluded that the Association failed to establish that the MOU was ambiguous or silent regarding reassignment of employees, and therefore there was no need to consider the past practices of the parties to determine whether the County violated its obligation to negotiate a change in practice. 

Accordingly, the Fifth District Court of Appeal affirmed the trial court judgment granting the County’s petition for writ of mandate.

1. An individual cannot be deemed an employee within the meaning of the Fair Employment and Housing Act absent existence of remuneration.

Talley v. Cnty. of Fresno, 51 Cal. App. 5th 1060 (5th Dist. 2020)

Facts: In October 2015, Ronald Talley pled nolo contendre to driving without a license or insurance and was sentenced by the Fresno County (“County”) Superior Court to 18 days in the County Jail. Rather than serving those days in jail, Talley was deemed eligible to serve the sentence by participation in the Adult Offender Work Program (“AOWP”), a work release program that allows eligible participants to serve their sentence by performing work assignments for participating community and governmental agencies and is coordinated through county’s probation department.

Talley is a physically disabled person due to a condition commonly referred to as clubfoot, which requires him to wear a 10-pound foot brace to walk. The brace limits his mobility and restricts him from certain activity. On a probation form that needed to be completed to enter AOWP, Talley marked an entry indicating he had no problems that would prohibit his participation in the AOWP program. While working one day as part of his participation in AOWP, Talley’s foot brace became lodged in a step, and he fell backwards and was injured.

Talley filed suit against the County for, among other things, its failure to accommodate his preexisting physical disability and failure to engage in the interactive process under the Fair Employment and Housing Act (Government Code section 12900 et seq.; “FEHA”). He argued that AOWP participants are county employees for FEHA purposes. The County filed a motion for summary judgment arguing, among other things, that because there was no remuneration for the work Talley performed in the AOWP, he could not be deemed an employee under FEHA. The trial court granted the County’s motion for summary judgment on all claims, and Talley appealed.

Held: The California Fifth District Court of Appeal noted that under FEHA, it is an unlawful employment practice for an employer or covered entity to fail to make a reasonable accommodation for the known physical or mental disability or medical condition of an applicant or an employee. (Section 12940(m)(1).) It is also an unlawful employment practice under the FEHA for an employer or other covered entity to fail to engage in a timely, good faith, interactive process with the employee or applicant to determine effective reasonable accommodations, if any, in response to a request for reasonable accommodation by an employee or applicant with a known physical or mental disability or known medical condition. (Section 12940(n).)[20]

The Court explained that FEHA claims alleging failure to make reasonable accommodation or failure to engage in the interactive process require a plaintiff to establish, among other elements, that (1) the defendant was an employer or other covered entity as defined by the statute and (2) the plaintiff was an “employee” of the defendant or applied to the defendant for a job. As there was no dispute that the County was an employer within the meaning of the FEHA, the Court proceeded to focus on the central issue of whether Talley was an “employee” of the County within the meaning of FEHA.

On appeal, Talley asserted that the trial court erroneously interpreted FEHA and applied an incorrect legal analysis to conclude, as a matter of law, he was not an employee of county. He also asserted that the trial court made an improper evidentiary ruling and impermissibly weighed the credibility of evidence in reaching its decision.

As other courts had earlier, the Fifth District observed that FEHA’s definition of “employee” provides limited guidance to ascertain who qualifies as an “employee.” See, e.g., Shephard v. Loyola Marymount Univ. (2nd Dist. 2002) 102 Cal.App.4th 837, 842; Vernon v. State of California (1st Dist. 2004) 116 Cal.App.4th 114, 123–124; Bradley v. California Department of Corrections & Rehabilitation (5th Dist. 2008) 158 Cal.App.4th 1612, 1625.

The Fifth District observed that the common law factor analysis utilized by federal and California courts alike, in the context of FEHA and other similar antidiscrimination statutes, considers remuneration a dispositive threshold factor to determine whether an individual may qualify as an employee. Based on the legislative history that was highlighted by Mendoza v. Town of Ross (1st Dist. 2005) 128 Cal.App.4th 625, as well as the 2015 amendments to FEHA and the related legislative bill analysis considering the 2015 amendments, the Fifth District agreed with Mendoza that there “is nothing within the FEHA or its legislative history evincing an intent to depart from the requirement that compensation of some sort is indispensable to the formation of an employment relationship.” (Id., at p. 637.) Thus, the Court determined that an individual cannot be deemed an employee within the meaning of FEHA without the existence of remuneration. The Court added that the existence of remuneration alone does not prove an individual is an employee under the statute, but the lack of remuneration precludes such a finding.

Here, the Fifth District noted that Talley did not receive any pay, health insurance, dental insurance, life insurance, or retirement benefits for participating in the AOWP. Talley contended that the benefits he received from the County by staying out of jail were sufficient remuneration to satisfy the test. He argued that remuneration need not be in monetary form. The Court found that because none of the benefits Talley claimed to have received were financially significant and quantifiable, that alone excluded them from qualifying as remuneration. Because there was no qualifying remuneration, the Court concluded that Talley was not an employee under FEHA and accordingly affirmed the trial court’s grant of summary judgment to the County. 

1. Trial court erred by substituting its own discretion for that of Sheriff’s Department in determining appropriate penalty for deputy sheriff’s failure to report another deputy’s use of forces against an inmate.

Pasos v. L.A. Cnty. Civil Serv. Comm’n, 2020 Cal. App. LEXIS 700 (2nd Dist. July 27, 2020)

Facts: The Los Angeles County Sheriff’s Department (“Department”) hired Meghan Pasos as a deputy sheriff in June 2007, and she started working at the Men’s Central Jail in November 2007. In early 2010, Pasos was one of five deputies assigned to a floor that housed 1,200 inmates. The Department had not taken any disciplinary action against Pasos before September 2010.

On September 27, 2010, a commissary employee informed Deputy Omar Lopez, Pasos, and Deputy Mark Montez that an inmate had stolen a bag of food items from the canteen, providing a physical description of the inmate. Lopez took the inmate who matched the description, Dequan Ballard, to an elevator landing area outside the view of surveillance cameras, where he conducted a strip search on Ballard while Montez provided security. Meanwhile, Pasos stood outside the landing as a lookout. Lopez jabbed the inmate once to the side of his stomach, and found the stolen bag. Ballard admitted to stealing it. Lopez sent Ballard back to his dormitory. Ballard attempted to intimidate the employee when he returned by calling her a snitch. The employee reported this incident to Montez and Pasos, who told Lopez.

Lopez then pulled Ballard from his dormitory and took him to an area near the control booth outside the view of the surveillance cameras. Lopez placed a piece of paper over the window on the door leading to the dormitory to prevent other inmates from seeing his interaction with Ballard. Pasos again stood outside the control booth area and served as a lookout. Lopez then pushed Ballard’s head against the wall, causing severe bleeding from his face, nose, and mouth areas. Ballard’s blood soaked his clothing and splattered on the wall and the floor in front of the control booth. Pasos did not report Lopez’s use of force, nor seek medical assistance for Ballard.

Ballard reported the two incidents, and surveillance video supported his account. After it conducted an investigation, the Internal Criminal Investigations Bureau (“ICIB”) submitted the case to the District Attorney’s office for review. The District Attorney’s office declined to file felony charges. In June 2012, the case was referred to the Internal Affairs Bureau (“IAB”) for an administrative disposition.

During the IAB investigation, Pasos stated Lopez told her he had shoved Ballard’s head into the wall. Pasos admitted she did not report the incident to a supervisor or write a report. Pasos explained, “It’s kind of like I didn’t want to be labeled as a rat. And just decided to keep my mouth shut […] I was afraid of the repercussions of, you know, ratting on him with my partners…” In April 2013, the Department served Pasos with a letter of intent to discharge her for failing to report the use of force and not seeking medical attention for Ballard, despite observing Ballard bleeding from the nose and being told by Lopez that he had pushed Ballard’s head into a wall. The letter concluded, “Your actions have brought discredit upon yourself and the Department.” The Department charged Pasos with multiple violations of the Department’s Manual of Policy and Procedures (“MPP”) (1996), including sections 3-01/030.05 (general behavior), 3-01/050.10 (performance to standards), 3-01/030.10 (obedience to laws, regulations and orders), 3-10/100.00 (rev. 12/19/12) (use of force reporting and review procedures), and 3-01/040.97 (safeguarding persons in custody). After the acting chief of the Men’s Central Jail conducted a Skelly[21] hearing reviewing the entire case file, he determined discharge was the appropriate discipline. Pasos was discharged in May 2013.

Pasos appealed to the Los Angeles County Civil Service Commission (“Commission”). The acting chief was among those who testified, referencing the public’s concern with the “code of silence” and stating, “Seeing misconduct, and not reporting it to the supervisor and distancing herself, not taking responsibility, not caring for the inmate. … That’s what people believe at times goes on in law enforcement, and that’s something we do not stand for. [¶] When you have a situation like this, you have to take action. You have to discipline the employees, and you have to send a loud and clear message throughout the organization. This will not be tolerated.” The acting chief had concluded Pasos violated the Department’s general behavior policy by “not reporting misconduct, walking away from a situation where an inmate was injured, [and] not ensuring that the inmate received medical care.” He added, “[Pasos] created a situation that would bring embarrassment to the Department.”

The Commission sustained the Department’s decision to discharge Pasos, finding that she intentionally chose not to report Lopez’s use of force because she was “concerned about being considered a ‘rat’ or ‘snitch’ by her co-workers and the impact that may have on relationships with her co-workers and shift partner.” The Commission also found that Pasos failed to seek medical attention for an injured inmate. The Commission determined that Pasos’ “actions w[ere] clearly a discredit to the Department as well as presented potential legal actions.” The hearing officer found the Department met its burden to provide evidence Pasos violated the MPP for general behavior; performance to standards; obedience to laws, regulations and orders; use of force reporting and review procedures; and safeguarding persons in custody.

In February 2017, Pasos filed a verified petition for writ of mandate challenging her discharge. The trial court granted the petition and ordered the Commission to set aside Pasos’ discharge, award her backpay, and reconsider a lesser penalty. The trial court concluded, “The Commission manifestly abused its discretion by upholding the Department’s discharge of Pasos.” The Department appealed, asserting that the trial court erred by substituting its own discretion for that of the Department in determining the appropriate penalty.

Held: The California Second District Court of Appeal explained the applicable legal context. “‘[In] a mandamus proceeding to review an administrative order, the determination of the penalty by the administrative body will not be disturbed unless there has been an abuse of its discretion.’” (Skelly v. State Personnel Board (1975) 15 Cal.3d 194, 217; accord, County of Los Angeles v. Civil Service Com. of County of Los Angeles (2nd Dist. 2019) 40 Cal.App.5th 871, 877.) “Neither an appellate court nor a trial court is free to substitute its discretion for that of the administrative agency concerning the degree of punishment imposed.” (Barber v. State Personnel Bd. (1976) 18 Cal.3d 395, 404; accord, Bautista v. County of Los Angeles (2nd Dist. 2010) 190 Cal.App.4th 869, 877; County of Los Angeles, at p. 877 [“The court may not substitute its own judgment for that of the Commission, nor ‘disturb the agency’s choice of penalty absent “‘an arbitrary, capricious or patently abusive exercise of discretion’” by the administrative agency’ [citation], but must uphold the penalty if there is any reasonable basis to sustain it.”].)

The Second District observed that in its earlier decision in Bautista, the Department discharged a deputy sheriff for engaging in a close personal relationship with a known heroin-addicted prostitute, in violation of the Department’s prohibited-association policy. (Bautista, supra, 190 Cal.App.4th at p. 871.) In upholding the discharge, the Court there considered the division chief’s testimony that the deputy’s “long-standing personal association with [the prostitute], along with her multiple detentions by the Gardena Police Department while he was with her, embarrassed the Department and undermined its reputation in both the law enforcement community and the public it is charged with protecting.” (Id. at p. 878.) The Bautista Court rejected the deputy’s contention the Commission abused its discretion in upholding his termination, noting the Department’s guidelines for discipline expressly stated discharge was the appropriate punishment. (Id. at p. 879.)

The Second District observed here that, similar to Bautista, the acting chief had testified at the Commission hearing that Pasos’ conduct brought potential embarrassment to the Department and undermined its reputation with the public “at a time the Department was under scrutiny by the public.” He described Pasos’ conduct as furthering the code of silence at the Men’s Central Jail, requiring the Department to take action, including disciplining the employees involved and sending “a loud and clear message throughout the organization [that t]his will not be tolerated.”

The Court also noted that Pasos’ conduct in following the code of silence undermined the Department’s trust and confidence in Pasos as a deputy sheriff and negatively impacted the operation of the jail; by not reporting the use of force, as the acting chief had explained, the door was opened for other people to violate policy and conduct themselves in a way that violated laws or policies. The Second District explained that “[i]t is simply intolerable that dishonesty and a culture of silence that countenances abuse of prisoners be permitted within the ranks of those charged with public safety and welfare.” (County of Los Angeles, supra, 40 Cal.App.5th at p. 880.)

Moreover, Pasos had minimized her responsibility to report the use of force, asserting she had no duty to report because she had not personally witnessed the battery. The Court, however, observed that Lopez told her he pushed Ballard’s face into the wall; that Ballard suffered severe bleeding from his face, nose, and mouth areas; and that Pasos saw Ballard wipe up blood from his nose, and saw blood on the wall and Ballard’s clothing. Yet Pasos had initially claimed that she did not report the use of force because she did not want to “rat” on her partner, and alternatively claimed she had no duty to report the use of force whatsoever.

The Court explained that given the Department’s “reasoned explanation” that discharge was necessary in light of Pasos’ furtherance of the code of silence in the Men’s Central Jail and the resulting embarrassment and loss of trust in the Department, the Court could not conclude that the Department abused its discretion. Accordingly, the Second District reversed the judgment of the trial court, and remanded instructing the trial court to enter a new judgment denying the petition for writ of mandate.

MARIJUANA

United States v. McIntosh hearing must focus on the conduct underlying the charge to determine whether the defendants complied with state marijuana laws.

United States v. Pisarski, 965 F.3d 738 (9th Cir. 2020)

Facts: In 1996, California voters approved the Compassionate Use Act (“CUA”), which decriminalized possession and cultivation of marijuana for medical use, Cal. Health & Safety Code section 11362.5, and provided immunity from prosecution for marijuana possession and cultivation to a “patient, or to a patient’s primary caregiver, who possesses or cultivates marijuana for the personal medical purposes of the patient upon the written or oral recommendation or approval of a physician.” Id. at Section 11362.5(b)(2)(d).

In 2003, California voters passed the Medical Marijuana Program Act (“MMPA”), which permitted the possession, cultivation, possession for sale, and sale of marijuana to “qualified patients, persons with valid identification cards, and the designated primary caregivers of qualified patients and persons with identification cards, who associate within the State of California in order collectively or cooperatively to cultivate cannabis for medicinal purposes.” Id. at Section 11362.775(a).

By July 2012, Andrew Pisarski and Sonny Moore had spent months growing hundreds of marijuana plants. Although they had not yet sold, or even harvested, any plants, Pisarski and Moore had entered into sale agreements with two marijuana collectives, promising to sell them any viable plants for a reimbursement of costs, but receiving no profit from such sale. Before any sale occurred, federal law enforcement officers raided Pisarski and Moore’s rural Humboldt County property, and they were arrested in July 2012. A search uncovered 327 marijuana plants, $416,125 in cash, and two loaded firearms. Additional searches in 2013 produced an additional firearm, ammunition, and a large quantity of gold and silver bars and coins. The government charged Pisarski and Moore with, and the pair pled guilty to, conspiracy to manufacture and possess with intent to distribute marijuana.[22]

Years later, Congress passed the Consolidated and Further Continuing Appropriations Act of 2015 (the “appropriations rider”),[23] which prohibited all expenditures of federal prosecutions for marijuana use, possession, or cultivation if the defendant complied with the state’s medical marijuana laws. A nearly identical rider has been extended in every subsequent appropriations bill (See United States v. Kleinman, 880 F.3d 1020, 1027 (9th Cir. 2017) (describing legislative history)).

The passage of the appropriations rider intervened before Pisarski and Moore’s impending sentencing date. The District Court stayed sentencing until the Ninth Circuit Court of Appeals addressed the effect of the appropriations rider in United States v. McIntosh, 833 F.3d 1163 (9th Cir. 2016). The District Court then, applying McIntosh, held a hearing and found that “any potential [marijuana] sale was sufficiently far into the future that, by the time of such sale, [the defendants] would have had ample time to ensure every aspect of it complied with the [MMPA].” The District Court also found that Pisarski and Moore strictly complied with California’s medical marijuana laws. The District Court enjoined government expenditures on the case “until and unless a future appropriations bill permits the government to proceed.” The government appealed.

Held: The Ninth Circuit Court of Appeals explained that resolution of the appeal rested on the application of state law and the Court of Appeal’s clear error review of the District Court’s factual findings, adding that the Court of Appeals owed considerable deference to the lower court’s findings.

The Ninth Circuit noted that the it had held in McIntosh that defendants may seek to enjoin the expenditure of United States Department of Justice funds only if they “strictly comply with all state-law conditions regarding the use, distribution, possession, and cultivation of medical marijuana.” 833 F.3d at 1178. The Court of Appeals observed that the government did not charge Pisarski and Moore with any past marijuana sales, nor detail any specific impending marijuana sales. The District Court had characterized the case as “something of a temporal conundrum,” explaining that on the date of the charged conduct, it was not apparent that the MMPA would have imposed any compliance requirements for speculative future marijuana sales.

The Ninth Circuit noted that McIntosh determined that appropriations rider “focuses on the conduct forming the basis of a particular charge.” Kleinman, supra, 880 F.3d at 1028 (emphasis added). Pisarski and Moore each had pleaded guilty to one count of conspiracy to manufacture and possess with intent to distribute marijuana in violation of 21 U.S.C. sections 841(a)(1), (b)(1)(C), and 846. The Ninth Circuit explained that the District Court appropriately focused the McIntosh inquiry on the intended future sales of the plants being grown on the Humboldt property.

The Ninth Circuit observed that the MMPA provides a defense to patients who participate in collectively or cooperatively cultivating marijuana if they “show that members of the collective or cooperative: (1) are qualified patients who have been prescribed marijuana for medicinal purposes, (2) collectively associate to cultivate marijuana, and (3) are not engaged in a profit-making enterprise.”[24] Although the MMPA does not specify what is meant by an association of persons who engage in collective or cooperative cultivation for medical purposes, the Ninth Circuit observed that state courts have declined to interpret this requirement rigidly.[25] The Court of Appeals also stated that it was difficult for it to “cherry pick a single principle” from state case law to apply in the McIntosh context, because California courts have emphasized that their findings rest on multiple non-dipositive factors, revealing the highly factual nature of MMPA proceedings.

Considering this conduct, the District Court had determined that, as of the date of Pisarski and Moore’s charged conduct, there was no provision of the MMPA with which they were out of compliance. The subsequent findings of the District Court included the following: that, to the extent any of the 327 marijuana plants were viable, Pisarski and Moore would have sold them to two marijuana collectives for a reimbursement of costs; that, although the men had not shown all members of the two collectives were qualified patients or primary caregivers, California law did not require them to do so “well before any sale”; that the presence of cash and precious metals on the Humboldt property was not evidence that Pisarski and Moore profited or would profit from unconsummated future sales and was consistent with reimbursement for past sales; and that California law did not require Pisarski and Moore to have paid taxes at the time of their arrest given all relevant sales of marijuana were speculative. The lower court then concluded that, considering that details of any prospective sale of marijuana by the defendants were “thin at best,” the defendants’ evidentiary showing sufficed.

In view of the District Court’s findings, the Ninth Circuit considered the record. Pisarski declared that any future sales from the 327 plants would be to two collectives to which he belonged. Unlike the defendant in People v. London,[26] Pisarski and Moore could account for the distribution of their entire future harvest. See id. at 566. This arrangement was confirmed by third-party declarations, coupled with cultivation agreements. Other evidence included multiple physician recommendations that corroborate the collective members’ status as qualified patients. Although the duo did not make a showing as to the status of all members within the two collectives, nothing required them to establish the status of all collective members months before any sale occurred.

The Ninth Circuit deemed the District Court’s findings “thoroughly supported by the record” and concluded that the District Court did not err in concluding Pisarski and Moore were in strict compliance with the California’s medical marijuana laws and the MMPA at the time of their arrest. The Ninth Circuit Court of Appeals accordingly affirmed.

Judge Wallace, dissenting, explained that he would hold that the District Court committed reversible legal error because the District Court did not properly interpret California law. He maintained that at the time of defendants’ charged conduct, there was a general prohibition against possession or distribution of marijuana in California, and that California established statutory exemptions from prosecution only in narrow and carefully-delineated circumstances. In Judge Wallace’s view, the defendants failed to provide evidence bearing on the question whether those narrow circumstances applied in this case. Judge Wallace would hold that the defendants therefore necessarily failed to carry their burden.

MISCELLANEOUS

1. District Court abused its discretion in granting nationwide injunctive relief barring DOJ from using three new conditions as funding requirements for Edward Byrne Memorial Justice Assistance Grants.

City & Cnty. of S.F. v. Barr, 965 F.3d 753 (9th Cir. 2020)

Facts: Since 2006, the Edward Byrne Memorial Justice Assistance Grants program has provided federal grant dollars to support state and local criminal justice programs. The United States Department of Justice disburses over $80 million in awards each year pursuant to a statutory formula based on population and violent crime rate.[27] In Fiscal Year (“FY”) 2017, California expected to receive $28.3 million and allocate $10.6 million in sub-grants to its localities. San Francisco expected to receive a sub-grant of $923,401, plus a direct award of $524,845 pursuant to its own FY 2017 application. California has used prior Byrne awards to support programs focused on criminal drug enforcement, violent crime, and anti-gang activities. The City and County of San Francisco has used them to support programs focused on reducing the drug trade and providing services to individuals with substance and mental health issues.

To receive a Byrne grant, a state or local government must submit an application that complies with the statutory requirements outlined in 34 U.S.C. section 10153, in a form set forth in annual solicitation documents that DOJ provides and in accordance with all lawful conditions stated therein.[28]

In FY 2017, the Attorney General of the United States and the Department of Justice announced three new conditions that state and local governments must satisfy to receive Byrne grants. Two of these were the Access and Notice Conditions, “two new express conditions” related to “the ‘program or activity’ that would be funded by the FY 2017 award.” These two conditions required recipient jurisdictions to:

(1) permit personnel of the U.S. Department of Homeland Security (“DHS”) to access any correctional or detention facility in order to meet with an alien (or an individual believed to be an alien) and inquire as to his or her right to be or remain in the United States (the “Access Condition”); and

(2) provide at least 48 hours’ advance notice to DHS regarding the scheduled release date and time of an alien in the jurisdiction’s custody when DHS requests such notice in order to take custody of the alien pursuant to the Immigration and Nationality Act (the “Notice Condition”).

The third condition requires jurisdictions to certify that their laws and policies comply with 8 U.S.C. section 1373, a federal statute prohibiting states and localities from restricting the flow of “information regarding [an individual’s] citizenship or immigration status” between state and local officials and DHS (the “Certification Condition”).

The City and County of San Francisco and the State of California (“Plaintiffs”) are “sanctuary” jurisdictions, which have enacted laws that limit their employees’ authority to assist in the enforcement of federal immigration laws.

In August 2017, Plaintiffs sued the Department of Justice, the Attorney General, and other DOJ officials (collectively, “DOJ”) to prevent DOJ from denying funding of Byrne grants for failure to comply with the Access, Notice, and Certification Conditions (collectively, the “Challenged Conditions”). Plaintiffs asserted that the Challenged Conditions were not authorized by the Byrne statute and violated constitutional separation of powers, the Spending Clause, and the Administrative Procedure Act (“APA”). Plaintiffs also argued that Section 1373 could not be enforced against them because it violated the Tenth Amendment.

Moreover, Plaintiffs maintained the Access and Notice Conditions were inconsistent with the sanctuary laws and policies that Plaintiffs had enacted. Plaintiffs claimed, however, that they could comply with the Certification Condition if Section 1373 were appropriately construed. Because DOJ threatened to withhold FY 2017 funds based on the assertion that Plaintiffs’ sanctuary laws violated Section 1373, Plaintiffs sought declaratory relief narrowly construing Section 1373 and holding that the statute as so construed did not conflict with Plaintiffs’ sanctuary laws.[29]

On summary judgment, the District Court entered declaratory relief in favor of Plaintiffs on all of their legal claims, holding the Challenged Conditions and Section 1373 unconstitutional and unenforceable against Plaintiffs and any other jurisdiction in the United States. It also permanently enjoined DOJ, among other things, from “[u]sing the Section 1373 certification condition, and the access and notice conditions . . . as requirements for Byrne JAG grant funding.” The District Court extended relief to the entire country by providing that the permanent injunction applied to “any California state entity, any California political subdivision, or any jurisdiction in the United States.” DOJ appealed.

Held: On appeal, DOJ argued, among other things, that the Challenged Conditions were imposed pursuant to lawful authority, and that the District Court misconstrued Section 1373 and erred in holding that Plaintiffs’ respective laws did not conflict with Section 1373. DOJ also argued that the District Court abused its discretion by extending the scope of injunctive relief to non-parties nationwide.

The Ninth Circuit Court of Appeals observed that while the appeal here was pending, the Court had upheld a preliminary injunction obtained by the City of Los Angeles against DOJ’s enforcement of the Access and Notice Conditions, holding that DOJ lacked statutory authority to implement them. See City of Los Angeles v. Barr, 941 F.3d 931, 945 (9th Cir. 2019).^[30] In City of Los Angeles, the Ninth Circuit Court held that the Access and Notice Conditions did not constitute “special conditions” or “priority purposes” under 34 U.S.C. section 10102(a)(6).^[31] City of Los Angeles also rejected the Department of Justice’s assertion that 34 U.S.C. Section 10153(a)(5)(C) or 34 U.S.C. Section 10153(a)(4) provided statutory authority; the Court determined that the Access and Notice Conditions requirements far exceeded what the statutory language of these provisions required. Consistent with its analysis in City of Los Angeles, the Ninth Circuit here affirmed the District Court’s order declaring the Access and Notice Conditions unlawful and enjoining DOJ from enforcing them against Plaintiffs.

Turning to the Certification Condition, the Ninth Circuit noted that it had recently interpreted Section 1373 in United States v. California,^[32] another decision that was rendered while the appeal in the instant case was pending. Section 1373, in relevant part, prohibits states and local governments from restricting their officials from sharing “information regarding the citizenship or immigration status, lawful or unlawful, of any individual” with DHS. In California, the Ninth Circuit held that Section 1373’s information-sharing requirements applied to “just immigration status” or “a person’s legal classification under federal law.”^[33] Consistent with its analysis in that case, the Ninth Circuit here held that the remaining California and San Francisco laws at issue also complied with Section 1373 and could not be cited in relation to the Certification Condition as a basis to deny Byrne funding. The Ninth Circuit accordingly affirmed the District Court’s ruling holding that Plaintiffs’ respective sanctuary laws complied with Section 1373, and upheld the injunction barring DOJ from withholding or denying Byrne funds to Plaintiffs based on the assertion that these laws violated Section 1373 and/or the Certification Condition.

Regarding the District Court’s imposition of a nationwide injunction, the Ninth Circuit explained “[a]lthough ‘there is no bar against . . . nationwide relief in federal district court or circuit court,’ such broad relief must be ‘necessary to give prevailing parties the relief to which they are entitled.’” California v. Azar, 911 F.3d 558, 582 (9th Cir. 2018) (quoting Bresgal v. Brock, 843 F.2d 1163, 1170-71 (9th Cir. 1987)). The Court explained that “[o]nce a constitutional violation is found, a federal court is required to tailor the scope of the remedy to fit the nature and extent of the constitutional violation.” City & Cty. of San Francisco v. Trump, 897 F.3d 1225, 1244 (9th Cir. 2018) (quoting Hills v. Gautreaux, 425 U.S. 284, 293-94 (1976)).

On appeal, Plaintiffs argued that they were entitled to nationwide relief due to the “far-reaching impact” of the Challenged Conditions upon “all types [of] grant recipients across the geographical spectrum,” pointing to declarations by grant recipients in the record. Plaintiffs argued that the broad impact made this “one of the ‘exceptional cases’ in which program-wide relief is necessary.” The District Court agreed, explaining that, before issuing a nationwide injunction, it must “undertake ‘careful consideration’ of a factual record evidencing ‘nationwide impact,’ or in other words, ‘specific findings underlying the nationwide application of the injunction.’”^[34]

The Ninth Circuit explained that the District Court erred by considering only this rule, without addressing other forms of tailoring when issuing a remedy. The Ninth Circuit noted that it had long held that an injunction “should be no more burdensome to the defendant than necessary to provide complete relief to the plaintiffs before the court. “Los Angeles Haven Hospice, Inc. v. Sebelius, 638 F.3d 644, 664 (9th Cir. 2011) (quoting Califano v. Yamasaki, 442 U.S. 682, 702 (1979)) (internal quotation marks omitted). The Court explained that under this rule, the appropriate inquiry would be whether Plaintiffs themselves would continue to suffer their alleged injuries if DOJ were enjoined from enforcing the Challenged Conditions only in California. The District Court had not made such a finding, and, stated the Court of Appeal, “it is not apparent how the record would support one.”

Plaintiffs argued that by imposing the Challenged Conditions, DOJ presented “an unacceptable choice: either comply with [the Challenged Conditions] and abandon local policies that San Francisco has found to promote public safety and foster trust and cooperation between law enforcement and the public, or maintain these policies but forfeit critical funds that it relies on to provide essential services to San Francisco residents.” San Francisco claimed that it faced “the immediate prospect of losing over $1.4 million” in program funds. California claimed it was at risk of “losing $31.1 million,” which would require many State and local law enforcement agencies’ programs to be cut.

Considering these claimed injuries, the Ninth Circuit determined that an injunction barring DOJ from enforcing the Challenged Conditions within California’s geographical limits would resolve Plaintiffs’ injuries by returning Plaintiffs to the status quo. The Court explained that extending this same relief to non-party jurisdictions beyond California’s geographical bounds would do nothing to remedy the specific harms alleged by Plaintiffs. Because the municipal and State plaintiffs here “‘operate[d] in a fashion that permits neat geographic boundaries’”^[35] and did not operate or suffer harm outside of their own borders, the Ninth Circuit determined that the geographical scope of an injunction could be “neatly drawn to provide no more or less relief than what is necessary to redress Plaintiffs’ injuries.” The Court distinguished this case from one involving plaintiffs that operated and suffered harm in multiple jurisdictions, where the process of tailoring an injunction could be more complex. The Court of Appeal concluded that a nationwide injunction was therefore unnecessary to provide complete relief, and that the District Court’s determination otherwise was overbroad and an abuse of discretion.

In sum, the Ninth Circuit Court of Appeals upheld the permanent injunction barring DOJ “from withholding, terminating, or clawing back Byrne funding based on the Challenged Conditions and statutes at issue.” However, the Court vacated the nationwide reach of the permanent injunction and limited its reach to California’s geographical boundaries. Moreover, the Court of Appeals did not remand to the District Court for further consideration because Plaintiffs had not established any nexus between their claimed injuries and the nationwide operation of the Challenged Conditions, nor proposed any reason why limiting the injunction along state boundaries would not grant them full relief.

For a more detailed discussion of this case, please see Client Alert Vol. 35, No. 23, available at www.jones-mayer.com.

1. Petitioner’s special condition of supervised release prohibiting him from residing in town found to trigger his alcohol- and drug-related behavior was affirmed.

United States v. Many White Horses, 964 F.3d 825 (9th Cir. 2020)

Facts: In 2008, James Many White Horses, an enrolled member of the Blackfeet Indian Nation, pled guilty to conspiracy to possess with intent to distribute methamphetamine. He was sentenced to 78 months in custody and 180 months of supervised release. Between 2014 and 2018, Many White Horses violated the terms of his supervised release nine times, which resulted in four revocations. Eight violations involved the use of either alcohol, methamphetamine, or another illegal substance, and all but one took place in Browning, Montana where Many White Horses resided much of the time. Browning is the tribal headquarters of the Blackfeet Nation and the sole incorporated town on the Blackfeet Reservation. In 2019, while on supervised release, Many White Horses used methamphetamine in Great Falls, Montana. While still intoxicated, he made the two-hour drive back to his mother’s home in Browning. When he arrived home, his mother called his probation officer to report the supervised release violation.

As a result of this violation, the District Court revoked supervised release and imposed a sentence of six months custody and a new term of five years of supervised release. The District Court also imposed a set of “Special Conditions” on the term of supervised release. Special Condition 11 prohibited Many White Horses from residing in Browning, or visiting the town without the prior approval of his probation officer. To obtain approval, he was required to provide the probation officer with the purpose of his visit to Browning, the expected duration of his stay in Browning, a phone number at which he could be reached during his stay in Browning, and address(es) of the place(s) he would visit in Browning, and a list of persons he intended to see in Browning. Special Condition 11 also required Many White Horses to contact the supervising probation officer as directed during his stay in Browning. The District Court also imposed Special Condition 12, which required Many White Horses to participate in a short-term residential treatment program at a particular facility in Browning.

Many White Horses appealed Special Condition 11, arguing in part that the condition was substantively unreasonable because it involved a greater deprivation of liberty than was reasonably necessary to accomplish the goals of supervised release.

Held: The Ninth Circuit Court of Appeals explained that Congress has specifically authorized District Courts to impose special conditions of supervised release requiring that a defendant “refrain from frequenting specified kinds of places or from associating unnecessarily with specified persons; . . . reside in a specified place or area, or refrain from residing in a specified place or area; . . . [and] report to a probation officer as directed by the court or the probation officer.” 18 U.S.C. section 3563(b)(6), (13), (15). The Court explained that, consistent with this statutory authority, it was well settled that a District Court may impose a geographic or residency restriction when it is properly supported by the record and substantively reasonable. See United States v. LaCoste, 821 F.3d 1187, 1192-93 (9th Cir. 2016).

The Ninth Circuit observed that while a District Court has broad discretion to impose special conditions of supervised release, the conditions must be “reasonably related” to deterrence, protection of the public, and/or rehabilitation and cannot involve “a greater deprivation of liberty than is reasonably necessary for the purposes [of deterrence, protection of the public, and/or rehabilitation].” 18 U.S.C. section 3583(d)(1)-(2).

The Court of Appeals noted that the District Court imposed the condition only after nine violations resulted in four revocations of Many White Horses’ supervised release. Since 2014, Many White Horses had engaged in a clear pattern of destructive behavior while in Browning, including repeated use of methamphetamine and alcohol, drunken and disorderly conduct, and physical and domestic abuse—all of which took place while he was on release. The Ninth Circuit noted that even after the appeal here was filed, but before oral argument, Many White Horses’ term of supervised release was revoked yet again after he received permission to visit Browning, and while there, used methamphetamine and became violent.

In the Ninth Circuit’s view, the District Court crafted a restriction that addressed purposes of rehabilitation and public safety. The District Court had recognized that Browning was a magnet and a trigger for behavior that violated the conditions of Many White Horses’ supervised release, a view that even Many White Horses himself acknowledged at his most recent revocation hearing, stating, “I think you’re right, your Honor.” The Ninth Circuit stated that the insufficiency of less restrictive conditions was clear, in light of Many White Horses’ repeated failures amidst numerous chances to serve his term of supervised release under lesser restrictions. Moreover, the District Court was also cognizant of Many White Horses’ need for rehabilitation and sensitive to the significance of Browning in his life. In light of that significance, the lower court ordered Many White Horses to attend a temporary residential drug treatment program at a facility located in Browning.

Moreover, Special Condition 11 only required that Many White Horses not live in Browning itself. He was free to reside in a nearby unincorporated town, or in one of the other many small towns surrounding the reservation. He could visit Browning for any other purpose, so long as he obtained permission and provided related information to his probation officer. These factors, explained the Ninth Circuit, helped to mitigate the severity of the prohibition of Many White Horses from residing in Browning itself. He could still visit his family and community, participate in tribal life, to receive treatment in Browning, and live nearby.

The Ninth Circuit Court of Appeals therefore concluded that the District Court chose a path that “involve[d] no greater deprivation of liberty” than was reasonably necessary under the circumstances and was reasonably related to deterrence, protection of the public, and rehabilitation. Accordingly, the Court affirmed.

1. Under the Major Crimes Act, only federal government, not State, may prosecute Indians for major crimes committed in Indian country.

McGirt v. Oklahoma, 140 S. Ct. 2452 (2020)

Facts: Forced to leave their ancestral lands in Georgia and Alabama, the Creek Nation received assurances that their new lands in the West would be secure forever. In exchange for ceding “all their land, East of the Mississippi river,” the United States government agreed by treaty that “[t]he Creek country west of the Mississippi shall be solemnly guarant[e]ed to the Creek Indians.” Treaty With the Creeks, Arts. I, XIV, Mar. 24, 1832, 7 Stat. 366, 368 (“1832 Treaty”). Both parties settled on boundary lines for a new and “permanent home to the whole Creek nation,” located in what is now Oklahoma. Treaty With the Creeks, preamble, Feb. 14, 1833, 7 Stat. 418 (“1833 Treaty”). The government further promised that “[no] State or Territory [shall] ever have a right to pass laws for the government of such Indians, but they shall be allowed to govern themselves.” 1832 Treaty, Art. XIV, 7 Stat. 368. The 1833 Treaty promised that the United States would “grant a patent, in fee simple, to the Creek nation of Indians for the [assigned] land” to continue “so long as they shall exist as a nation, and continue to occupy the country hereby assigned to them,” Art. III, 1833 Treaty, preamble, 7 Stat. 418, at p. 419. The patent formally issued in 1852.

Though the early treaties did not refer to the Creek lands as a “reservation,” similar language in treaties from the same era has been held sufficient to create a reservation, see, e.g., Menominee Tribe v. United States, 391 U. S. 404, 405 (1968). Moreover, later Acts of Congress referred repeatedly to the “Creek reservation.” For example, in 1866, the United States entered another treaty with the Creek Nation which reduced the size of the land set aside for the Creek. However, with the Treaty, Congress explicitly restated its commitment that the remaining land would “be forever set apart as a home for said Creek Nation,” which it now referred to as “the reduced Creek reservation.” Treaty Between the United States and the Creek Nation of Indians, Arts. III, IX, June 14, 1866, 14 Stat. 786, 788. Throughout the late 19th century, many other federal laws also expressly referred to the Creek Reservation.[36] Moreover, in an 1856 Treaty, Congress promised that “no portion” of Creek lands “would ever be embraced or included within, or annexed to, any Territory or State,” Treaty of 1856, Art. IV, 11 Stat. 700, and that the Creeks would have the “unrestricted right of self-government,” with “full jurisdiction” over enrolled Tribe members and their property, id., at 704.

Major Crimes Act, McGirt, and the Creek Nation

The Major Crimes Act (“MCA”) provides that, within “the Indian country,” “[a]ny Indian who commits” certain enumerated offenses “shall be subject to the same law and penalties as all other persons committing any of [those] offenses, within the exclusive jurisdiction of the United States.” 18 U. S. C. section 1153(a). “Indian country” includes “all land within the limits of any Indian reservation under the jurisdiction of the United States Government.” Section 1151.

Jimcy McGirt was convicted by an Oklahoma state court of three serious sexual offenses. He unsuccessfully argued in state postconviction proceedings in the Court of Criminal Appeals of Oklahoma that the State lacked jurisdiction to prosecute him because he was an enrolled member of the Seminole Nation of Oklahoma and his crimes took place on the Creek Reservation. McGirt sought review by the United States Supreme Court.

The Creek Nation joined Mr. McGirt as amicus curiae because McGirt’s personal interests implicated the Tribe’s interests. It was undisputed that McGirt’s crimes were committed on lands described as the Creek Reservation in an 1866 treaty and federal statute. However, in seeking to defend the state-court judgment convicting McGirt, Oklahoma set aside any procedural defenses and requested that the United States Supreme Court confirm that the land once given to the Creeks was no longer a reservation now.

Held: The United States Supreme Court held that for MCA purposes, land reserved for the Creek Nation since the 19th century remains “Indian country.” The Court stated that there was no question that Congress established a reservation for the Creek Nation, and that to determine whether a tribe continues to hold a reservation, “there is only one place we may look: the Acts of Congress.” The Court explained that once a federal reservation is established, only Congress can diminish or disestablish it. To do so would require a clear expression of congressional intent, “[c]ommon[ly with an] ‘[e]xplicit reference to cession or other language evidencing the present and total surrender of all tribal interests.’” Nebraska v. Parker, 577 U. S. 481, ___-___, 136 S. Ct. 1072, 194 L. Ed. 2d 152 (2016) (slip op., at 6). The Court determined that although Congress had since broken “more than a few promises” to the Tribe, the Creek Reservation nevertheless persists today. The Supreme Court explained that there “simply arrived no moment when any Act of Congress dissolved the Creek Tribe or disestablished its reservation.”

Oklahoma argued that Congress ended the Creek Reservation during the so-called “allotment era”—a period when Congress sought to pressure many tribes to abandon their communal lifestyles and parcel their lands into smaller lots owned by individual tribal members. Rejecting this argument, the Supreme Court explained that missing from the allotment-era agreement with the Creek,[37] however, was any statute evincing anything like the “present and total surrender of all tribal interests” in the affected lands. Moreover, the Court had already rejected the argument in prior decisions that allotments automatically ended reservations.[38]

Oklahoma also claimed that historical practice and demographics were enough by themselves to prove disestablishment. The Court disagreed, noting that Oklahoma did “not point to any ambiguous language in any of the relevant statutes that could plausibly be read as an Act of disestablishment. Nor may a court favor contemporaneous or later practices instead of the laws Congress passed.”

Oklahoma argued in the alternative that Congress never established a reservation but instead created a “dependent Indian community.” The Supreme Court declared that Congress established a reservation, not a dependent Indian community, for the Creek Nation. The Court explained that to hold that the Creek never had a reservation would require willful blindness to the statutory language and a belief that the land patent the Creek received somehow made their tribal sovereignty easier to divest.

The United States Supreme Court thus concluded that the land once granted to the Creek Nation as a reservation retained that status as Indian country because Congress had not clearly expressed intent to the contrary. The Supreme Court accordingly reversed the judgment of the Court of Criminal Appeals of Oklahoma.

Chief Justice Roberts, joined by Justice Alito, Justice Kavanaugh, and almost fully by Justice Thomas, dissented. Chief Justice Roberts contended that the land was no longer a Creek Indian reservation, so Oklahoma had jurisdiction to prosecute McGirt. Roberts expressed the view that Congress enacted a series of statutes beginning in 1890 and culminating with Oklahoma statehood that (1) established a uniform legal system for Indians and non-Indians alike; (2) dismantled the Creek government; (3) extinguished the Creek Nation’s title to the lands at issue; and (4) incorporated the Creek members into a new political community—the State of Oklahoma. Chief Justice Roberts declared that these statutes evinced Congress’ intent to disestablish the reservation and create a new State in its place. Justice Clarence Thomas added a separate dissent stating that the United States Supreme Court lacked jurisdiction to review the state court judgment.

1. Ample evidence showed that defendant actively participated in gang, was aware that its members engaged in criminal gang activity, and promoted felonious conduct of its members.

People v. Vargas, 9 Cal. 5th 793 (2020)

Facts: The evening of April 1, 1999, Laura Espinoza and Amor Gonzalez responded to a page from Eloy Gonzalez (not related to Amor). Espinoza drove with Amor and, picked up Eloy, Miller, and defendant Eduardo David Vargas from Vargas’ apartment. Two days earlier, the trio had been involved in two separate armed robberies. Espinoza parked in the Santa Ana Zoo parking lot near her apartment complex, and went to her home. When Espinoza left her car, Vargas and Miller also got out and went across the street. When Espinoza returned to her car after, all three men – Vargas, Eloy Gonzalez, and Miller – were gone.

Matthew Stukkie and Jesse Muro were walking away from Stukkie’s house in the vicinity. As they walked past the zoo, they saw Espinoza’s car parked across the street in the zoo’s parking lot. They also noticed some men near the car. “A couple guys” approached Stukkie and Muro and held guns to their heads, and told them not to look back or look at the faces of the gunmen. The man who held a gun to Stukkie’s head repeatedly asked for money, and took Stukkie’s bracelet and pager. Stukkie became aware that there were three men behind him, but was unable to fully see the men with the gun pointed at the back of his head, and had also lost sight of Muro. Stukkie heard a gunshot, and was ordered to lay on the ground. After a few minutes, Stukkie got up and realized Muro had been shot. Police arrived shortly thereafter. Muro was transferred to a hospital but died there of the two gunshot wounds to the head.

Simon Cruz was robbed of his wallet at gunpoint at his area apartment complex shortly after the time that another person reported hearing the gunshots. After the gunshots sounded, Eloy Gonzalez and Miller ran back and got into Espinoza’s car where she had been waiting with Amor. Espinoza drove the car out, and picked up Vargas after Amor spotted him near a motel Once Vargas was in the car, Gonzalez and Miller expressed “[expletive]ing Peewee,” and told Vargas he would “regret it for the rest of his life,” he was “going to get taxed for that,” and that they “should kick his ass for this.” While in the car, Vargas told the group he shot Muro because Muro “was going to fight back,” “he got up,” and “he came back at” Vargas. Espinoza dropped Vargas off at his apartment, and Espinoza, Eloy Gonzalez, Miller, and Amor then rented a room at a Motel 6 in Stanton.

Shortly after midnight on April 2, a deputy sheriff patrolling the parking lot of the Motel 6 (where he had previously made many stolen vehicle and narcotics-related arrests) spotted the four in and around a car with beer bottles around. After questioning them, the deputy called for backup, conducted pat-down searches of Eloy Gonzalez and Miller, and searched the car. The searches produced Cruz’s wallet, $950 in cash, a key to the motel room, and – in Gonzalez’s pocket – Stukkie’s bracelet in Gonzalez’s pocket. A search of the Motel 6 room revealed Vargas’ driver’s license and Amor’s phone book. The phone book appeared to have gang style writing on it. On the back of the book was written the name “Scrappy,” Gonzalez’s moniker, along with the date of Muro’s murder: April 1, 1999. Espinoza told police about picking up Vargas, Miller, and Gonzalez the day before.

The Tustin Police Department determined that Vargas was on probation and subject to a search condition. A further term of Vargas’ probation prohibited him from possessing a firearm. Espinoza took police to Vargas’ home. Vargas was arrested and asked if he was on probation and subject to a search condition. Vargas answered those questions affirmatively. Detectives searched Vargas’ home and seized two firearms, including one used in the Muro homicide, and matching bullet casings were found at the scene of the Muro shooting. Also found in Vargas’ home were depictions of gang-related graffiti, specifically referencing Southside—a criminal street gang—along with Vargas’ moniker. A search of Miller’s home revealed further evidence of gang participation, including an image of a Southside roster listing Gonzalez, Miller, and Vargas’ monikers.

Police also lifted a palm print from the trunk of a Nissan Sentra parked near where Muro was shot, which was later matched to Vargas. The wallet belonging to Muro was found in some bushes near the location where Vargas had returned to the car with Amor, Espinoza, Miller, and Eloy Gonzalez therein. Vargas was also identified, along with Miller and Eloy Gonzalez, in lineups by victims of robberies that the three were tied to that occurred on March 30, 1999.

Vargas was convicted of one count of first degree murder, six counts of robbery, one count of attempted robbery, one count of possessing a firearm while on probation, and two counts of active participation in a criminal street gang (Penal Code section 186.22(a), defined at the time of the offense as “street terrorism”). The jury also found true a robbery-murder special-circumstance allegation. The jury also found true allegations that Vargas personally discharged a firearm causing death during the robbery murder (Section 12022.53(d)), and that the crimes were committed with the intent to promote a criminal street gang (Sections 186.22(b), 12022.53(b), (e)(1)). After a penalty trial, the jury returned a verdict of death, and the trial court sentenced Vargas to death. An automatic appeal followed.

Held: On appeal, Vargas claimed, among other things, that the evidence was insufficient to support his convictions of active participation in a criminal street gang, suggesting that he was simply, associated with gang members, rather than an active participant.

Penal Code section 186.22(a) states in relevant part: “Any person who actively participates in any criminal street gang with knowledge that its members engage in, or have engaged in, a pattern of criminal gang activity, and who willfully promotes, furthers, or assists in any felonious criminal conduct by members of that gang, shall be punished.” Section 186.22(b)(1), the so-called “gang enhancement,” is applicable to “‘any person’ convicted of a number of enumerated felonies, including murder” and being a felon in possession of a firearm, provided certain conditions are present. (People v. Rivera (2019) 7 Cal.5th 306, 331; Section 186.22(b)(1).) The crime must be “(1) ‘committed for the benefit of, at the direction of, or in association with any criminal street gang,’ and (2) ‘with the specific intent to promote, further, or assist in any criminal conduct by gang members.’” (Rivera, at p. 331; Section 186.22(b)(1).) If a gang-related crime is committed for the particular purpose of helping members of the gang, the enhancement is applicable, although “‘[n]ot every crime committed by gang members is related to a gang.’” (Rivera, at p. 331.)

The Supreme Court of California noted that at trial, Tustin Police Officer Jeff Blair, “Tustin’s first and only gang investigator” at the time, had presented expert testimony that Miller, Eloy Gonzalez, and Vargas were all members of the Southside gang, a criminal street gang. Officer Blair worked on over 500 gang cases and had had contact with over 1,000 gang members. Officer Blair was familiar with a number of gang tattoos, and had noted that these were seen less frequently than in previous years because they might signify gang membership if viewed by a jury. Officer Blair had testified that a tattoo depicting three dots meaning “my crazy life” was typical of gang membership. Vargas had a tattoo of three dots on his hand.

The officer testified that criminal street gangs habitually maintained rosters regarding membership, and a name would not be listed on a roster if the individual was not a member of a gang. Officer Blair testified that an image of a gang roster found at Miller’s home listed Miller, Eloy Gonzalez, and Vargas as members of the Southside gang. (Id.)

The Supreme Court of California found that ample evidence was presented at trial demonstrating, or permitting a finder of fact to infer, that Vargas (1) actively participated in the Southside gang, (2) was aware that its members—including Miller and Eloy Gonzalez—”engaged in a pattern of criminal gang activity,” and (3) promoted the felonious conduct of its members. In addition to Officer Blair’s testimony regarding Vargas’ name on the roster of Southside gang members, Vargas’ mother testified that Vargas and Miller had been friends since 1987. While in custody awaiting trial, Vargas wrote three letters to Miller containing language and slang used by gang members. Vargas’ mother also testified that her son and Eloy Gonzalez had been acquainted for some time. Miller and Eloy Gonzalez were both known to be Southside gang members.

Moreover, the Court concluded that a factfinder could surmise that Vargas, Miller, and Eloy Gonzalez engaged in a pattern of criminal activity together; all three were present when credit cards from the first of the March 30, 1999 robberies were used at a pager store.[39] All three participated in the second March 30 robbery and an attempted robbery, and all three were also present during the robbery of Stukkie and the robbery and murder of Muro. Officer Blair had testified that gang members regularly commit crimes together to provide each other with “backup,” explaining that the robberies in this case had been committed for the benefit of, i.e., to promote the felonious conduct of, the Southside gang. He had also testified that the robberies would have financially benefitted the Southside gang, permitting its members to purchase alcohol, drugs, and motel rooms. He had also stated that the robberies would have enhanced the gang’s reputation as dangerous by instilling fear in community members. The Court explained that, viewed in the light most favorable to the judgment, this evidence was sufficient for a reasonable juror to have concluded that Vargas was an active participant in the Southside gang.

The Supreme Court accordingly affirmed.

1. An agency must not add confusing information to required notice that could mislead affected parties about the timing for seeking judicial review.

Alford v. Cnty. of L.A., 51 Cal. App. 5th 742 (2nd Dist. 2020)

Facts: Jay Alford filed a grievance after the Los Angeles County Department of Children and Family Services (the “Department”) placed his name on the Child Abuse Central Index. After a grievance hearing, the Department decided no modification should be made to the previously substantiated allegations of child abuse by Alford, and so his name stayed on the Index. The Department denied the grievance and served its written decision upon plaintiff by mail. The Department’s notice stated in part: “The decision made by the Director of the Department of Children and Family Services regarding the [Child Abuse Central Index] determination is final. If you disagree with this decision, you can file a petition…for a Writ of Mandate pursuant to California Code of Civil Procedure 1094.5, and request a review of the decision in the Los Angeles Superior Court. Timelines for filing Writs of Mandate are governed by California Civil Code of Procedure 1094.6. This statute requires you file any petition or other paper seeking review no later than the 90th day on which the decision is deemed final. The decision will become final 90 days from the date it is placed in the mail.”

On February 17, 2016, four months after the notice was served, Alford filed a petition for writ of mandate under Section 1094.5, seeking to overturn the decision to keep his name on the Child Abuse Central Index. The trial court granted summary judgment for the Department on the ground that Alford’s petition was barred by the statute of limitations. Alford appealed, contending the Department did not serve notice of its decision in compliance with the Code of Civil Procedure section 1094.5, and, for that reason, the statute of limitations did not bar his petition.

Held: Code of Civil Procedure section 1094.6(b), provides that where the agency decision is in writing, any petition challenging the agency decision must be filed within 90 days of the decision becoming final. The decision becomes final on the date the decision is served by first class mail. “The triggering point for the limitations provision in issue is the ‘date on which the decision becomes final.’” (Donnellan v. City of Novato (1st Dist. 2001) 86 Cal.App.4th 1097, 1104.)

The California Second District Court of Appeal noted that the Department gave notice to Alford by mail on October 13, 2015, and he received it on October 20, 2015. He did not file his petition until February 17, 2016, four months after the notice was served. The Court observed, however, that the notice did not clearly tell plaintiff when the decision became final. First, the notice said the decision “is final,” and that Section 1094.6 required plaintiff to file any petition no later than “the 90th day on which the petition is deemed final.” However, the notice also said the decision would become final “90 days from the date it is placed in the mail.” Thus, the Department’s notice gave Alford two inconsistent dates on which its decision became final.

The Court stated that an agency must not add confusing information to the required notice that could mislead affected parties about the timing for seeking judicial review, as occurred here. The Court found that the Department’s notice made it reasonable for Alford to believe its decision would not become final until 90 days after it was mailed, and under that scenario, his petition would have been timely. The Court concluded that because the Department created ambiguity as to the date the Department’s decision was final, the Department’s notice did not comply with the Section 1094.6’s requirements, and so the statute of limitation did not bar Alford’s petition. The Second District Court of Appeal accordingly reversed the trial court’s grant of summary judgment.

32. California Department of Corrections and Rehabilitation’s regulation excluding sex offenders from early parole consideration is inconsistent with California Constitution Article I section 32.

In re Chavez, 51 Cal. App. 5th 748 (6th Dist. 2020)

Facts: In 1994, Frank Ray Chavez was convicted by plea of assault with intent to commit rape (Penal Code section 290), a sex offense requiring sex offender registration (Section 290(c)). He was sentenced to nine years in state prison. In 1999, Chavez pleaded guilty to failing to register as a sex offender (Section 290.018(b)) and admitted five strike allegations. Chavez was sentenced to a “Three Strikes” law term of 25 years to life for the failure to register offense.

Proposition 57 took effect in November 2016, with express purposes including saving money by reducing wasteful spending on prisons and to “[s]top the revolving door of crime by emphasizing rehabilitation…”[40] Among the provisions added by Proposition 57 was Section 32 of article I of the California Constitution. Section 32 provides in relevant part that “[a]ny 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.” (Cal. Const., art. I section 32.) Proposition 57’s Voter Information Guide provided that “[t]his act shall be liberally construed to effectuate its purposes.”

After Proposition 57 took effect, the California Department of Corrections and Rehabilitation (“CDCR”) adopted regulations implementing early parole consideration for inmates under Section 32. The CDCR’s regulations provided that “an inmate is not eligible for a parole consideration hearing by the Board of Parole Hearings under [Cal. Code Regs., tit. 15, section 2449.32 (early parole consideration under Section 32)] if the inmate is 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.”[41] The CDCR enacted this restrictive regulation because, in its view, “‘these sex offenses demonstrate a sufficient degree of violence and represent an unreasonable risk to public safety to require that sex offenders be excluded from nonviolent parole consideration.’” (In re Gadlin (2019) 31 Cal.App.5th 784, 788.)

In February 2018, Chavez’s request to be granted early parole consideration under Proposition 57 was denied. In May 2018, Chavez filed a petition for a writ of habeas corpus raising a number of issues, including his challenge to the CDCR’s refusal to grant him early parole consideration under Proposition 57. The superior court denied his petition as to the other issues, but in October 2018 it issued an order to show cause on the Proposition 57 issue. In March 2019, the superior court granted Chavez’s petition as to the Proposition 57 issue, and ordered the CDCR to “provide Chavez with early parole consideration within 60 days” of its order. The superior court concluded that the CDCR’s regulation was inconsistent with Proposition 57 and therefore did not justify the CDCR’s refusal to grant Chavez early parole consideration. CDCR subsequently appealed.

Held: On appeal, CDCR argued that its regulation excluding sex offenders from early parole consideration under Proposition 57 was valid because it was consistent with the CDCR’s understanding of the voters’ intent in enacting Section 32. CDCR asserted that “Proposition 57’s intent was to implement parole reform for nonviolent inmates who are not sex offenders.”

The California Sixth District Court of Appeal disagreed, observing that Section 32 provides that “[a]ny 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.” (Italics added.) The Court explained that this provision broadly applied to “[a]ny” inmate convicted of a nonviolent felony and, because it used “shall,” was explicitly mandatory. The Court noted that the provision contained no suggestion that it was restricted to those lacking certain prior convictions. Moreover, the fact that Proposition 57 expressly required that its provisions “shall be liberally construed to effectuate its purposes” rebutted any possible inference that the voters intended for this broad mandate to be restricted by the CDCR’s enactment of regulations deeming ineligible some of those identified as eligible in Section 32. (Voter Information Guide, supra, text of Prop. 57 section 9, p. 146, italics added.)

The Sixth District Court of Appeal therefore concluded that CDCR’s restrictive regulation was inconsistent with Section 32’s express provisions, and Chavez was entitled to early parole consideration under Section 32. The Court accordingly affirmed.

[1] See Scott v. Harris, 550 U.S. 372, 380 (2007) (citing Fed. R. Civ. P. 56(c)).

[2] The Ninth Circuit observed that Plumhoff instructed that Monzon’s reckless, high-speed driving posed a severe threat to public safety that may itself have justified the use of deadly force. However, the Circuit Court explained that it need not consider that issue because the Court already determined here that the use of deadly force was reasonable to protect the officers whose lives were threatened by the accelerating van.

[3] Castellanos was charged, in part, with “transporting a controlled substance from one county to another noncontiguous county” under Health & Safety Code section 11352(b).

[4] See Terry v. Ohio, 392 U.S. 1 (1968).

[5] See United States v. Orozco, 858 F.3d 1204, 1210-11 (9th Cir. 2017) (observing that “actual motivations do matter” in administrative-search cases (internal quotation marks omitted).

[6] Nev. Rev. Stat. section 453D.400(2).

[7] See Nev. Rev. Stat. sections 453D.100(1)(a), 484C.110, 484C.400.

[8] See Cal. Penal Code section 25400.

[9] Penal Code section 25400(a)(1).

[10] Section 1546.1(c)(6) states: “A government entity may access electronic device information by means of physical interaction or electronic communication with the device only as follows: [¶] … [¶] If the government entity, in good faith, believes that an emergency involving danger of death or serious physical injury to any person requires access to the electronic device information.”

Subdivision (h) states: “If a government entity obtains electronic information pursuant to an emergency involving danger of death or serious physical injury to a person, that requires access to the electronic information without delay, the government entity shall, within three court days after obtaining the electronic information, file with the appropriate court an application for a warrant or order authorizing obtaining the electronic information or a motion seeking approval of the emergency disclosures that shall set forth the facts giving rise to the emergency … .”

[11] Scafidi also brought state law tort claims against the same defendants. The Ninth Circuit ultimately affirmed the District Court’s grant of summary judgment to the defendants on these state law claims.

[12] Ticknor v. Choice Hotels Int’l, Inc., 265 F.3d 931, 939 (9th Cir. 2001) (internal quotation marks and citations omitted).

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

[14] See, e.g., Davis v. United States, supra, 512 U.S. at p. 462 [“‘Maybe I should talk to a lawyer’”]; People v. Sauceda-Contreras (2012) 55 Cal.4th 203, 219 [“‘If you can bring me a lawyer’”]; People v. Bacon (2010) 50 Cal.4th 1082, 1105 [“‘I think it’d probably be a good idea for me to get an attorney’”].

[15] People v. Cahill, 5 Cal.4th 478, 505 (1993).

[16] Of California’s 58 counties, 20 opted to implement their pension plans under CERL. Because the legislation at issue here applied only to CERL, the pensions of persons employed by counties that do not participate in CERL are not directly affected by the Court’s decision here. (Hereafter, “county” or “counties” will refer to those implementing pension plans under CERL.)

[17] The plaintiffs in the Contra Costa and Merced actions filed respondents’ briefs with the Supreme Court advancing similar positions to those asserted by the plaintiffs here.

[18] For additional background, please see Client Alert Vol. 33, No. 1, which provides extensive information on the First District’s January 2018 decision (Alameda Cnty. Deputy Sheriff’s Ass’n v. Alameda Cnty. Emps.’ Ret. Ass’n, 19 Cal. App. 5th 61 (1st Dist.2018)).

[19] In addition to the petition for review filed by the Association, the Supreme Court granted petitions for review filed by both the District and the State. The District had been joined as a defendant in the Contra Costa County action because its employees participate in a CERL pension plan. Although not initially a party, the State was permitted to intervene in all three of the consolidated actions to defend PEPRA.

[20] The interactive process required under the FEHA “is an informal process with the employee or the employee’s representative, to attempt to identify a reasonable accommodation that will enable the employee to perform the job effectively.” Wilson v. County of Orange, 169 Cal.App.4th 1185, 1195 (4th Dist. 2009).

[21] In Skelly v. State Personnel Board (1975) 15 Cal.3d 194, 215, the Supreme Court held a permanent civil service employee has due process rights to certain preremoval safeguards, including “notice of the proposed action, the reasons therefor[e], a copy of the charges and materials upon which the action is based, and the right to respond, either orally or in writing, to the authority initially imposing discipline.”

[22] 21 U.S.C. sections 841(a)(1), (b)(1)(C), and 846.

[23] Consolidated and Further Continuing Appropriations Act Of 2015, Pub. L. No. 113-235, section 538, 128 Stat. 2130, 2217 (2014).

[24] People v. Jackson, 210 Cal. App. 4th 525, 529 (4th Dist. 2012); see also Health & Safety Code section 11362.775.

[25] See People v. Orlosky, 233 Cal. App. 4th 257, 267-68 (4th Dist. 2015).

[26] In People v. London 228 Cal. App. 4th 544 (2014), a defendant grew marijuana for an informal collective, which would then distribute it among members and the original suppliers of the plants. The defendant there presented no evidence that any of those individuals were qualified patients. A police officer testified that the defendant had actually admitted to making a $20,000 profit from the plants, and the defendant offered no evidence the plants would be distributed on a non-profit basis. After considering state law, case law, and the Attorney General guidelines, that court concluded there was insufficient evidence to support an MMPA jury instruction.

[27] See 34 U.S.C. section 10156(d)(2)(A).

[28] See Id., section 10153.

[29] The Ninth Circuit noted: “[T]he State of California sought similar relief related to a condition that DOJ placed on FY 2017 awards under the Community Oriented Policing Services (“COPS”) grant program and the COPS Anti-Methamphetamine Program (“CAMP”). See generally 34 U.S.C. [section] 10381 et seq. Like the Certification Condition attached to Byrne awards, the challenged condition attached to the COPS/CAMP awards requires applicants to certify their compliance with 8 U.S.C. [section] 1373. California’s Department of Justice submitted this certification when it applied for a FY 2017 CAMP award, and although it received $1 million in CAMP funding that year, it was told it could not “draw down” the funds pending an inquiry into its compliance with [Section] 1373.

The dispositive issue on appeal related to COPS/CAMP is whether California’s state laws render California ineligible for COPS/CAMP funding based on asserted non-compliance with [Section] 1373. This issue is identical to the issue regarding the Certification Condition attached to the Byrne program. See infra Part IV. For the sake of simplicity, the issue is discussed in the text of this opinion in terms of the Byrne program’s Certification Condition, but that discussion and our resolution of that challenge applies similarly to the [Section] 1373 certification condition under COPS/CAMP.”

[30] See also Client Alert Vol. 34, No. 35 for more details regarding the Ninth Circuit’s decision in City of Los Angeles v. Barr.

[31] The Ninth Circuit here noted that other circuits had reached differing conclusions regarding DOJ’s authority under Section 10102(a)(6) and the Byrne statute to impose the Access and Notice Conditions, resulting in a circuit split. The Ninth Circuit stated, “To date, only the Second Circuit has held that the Access and Notice Conditions were imposed pursuant to appropriate authority. New York v. Dep’t of Justice, 951 F.3d 84, 101-04, 116-22 (2d Cir. 2020). The First, Third, and Seventh Circuits have held to the contrary. City of Chicago v. Barr, 957 F.3d 772, 961 F.3d 882 (7th Cir. 2020); City of Chicago v. Sessions, 888 F.3d 272, 283-87 (7th Cir. 2018), reh’g en banc granted in part, opinion vacated in part, No. 17-2991, 2018 U.S. App. LEXIS 21801, 2018 WL 4268817 (7th Cir. June 4, 2018), vacated, No. 17-2991, 2018 U.S. App. LEXIS 25694, 2018 WL 4268814 (7th Cir. Aug. 10, 2018); City of Philadelphia v. Att’y Gen., 916 F.3d 276, 284-88 (3d Cir. 2019); City of Providence v. Barr, 954 F.3d 23, 45 (1st Cir. 2020).”

[32] 921 F.3d 865 (9th Cir. 2019), cert. denied, 590 U.S. , 2020 U.S. LEXIS 3156 (U.S. Jun. 15, 2020) (No. 19-532).

[33] Id., at p. 891.

[34] City & Cty. of San Francisco v. Sessions, 349 F. Supp. 3d 924, 971 (N.D. Cal. 2018) (citing Trump, supra, at p. 1244), judgment entered sub nom. California ex rel. Becerra v. Sessions, 2018 U.S. Dist. LEXIS 199018 (N.D. Cal. Nov. 20, 2018).

[35] E. Bay Sanctuary Covenant v. Trump, 950 F.3d 1242, 1282-83 (9th Cir. 2020) (quoting E. Bay Sanctuary Covenant v. Trump, 354 F. Supp. 3d 1094, 1120-21 (N.D. Cal. 2018)).

[36] See, e.g., Treaty Between United States and Cherokee Nation of Indians, Art. IV, July 19, 1866, 14 Stat. 800 (“Creek reservation”); Act of Mar. 3, 1873, ch. 322, 17 Stat. 626; (multiple references to the “Creek reservation” and “Creek India[n] Reservation”); 11 Cong. Rec. 2351 (1881) (discussing “the dividing line between the Creek reservation and their ceded lands”); Act of Feb. 13, 1891, 26 Stat. 750 (describing a cession by referencing the “West boundary line of the Creek Reservation”).

[37] See Creek Allotment Agreement, ch. 676, 31 Stat. 862-864.

[38] See Mattz v. Arnett, 412 U. S. 481, 504, n. 22 (1973) (“[A]llotment under the . . . Act is completely consistent with continued reservation status”); Seymour v. Superintendent of Wash. State Penitentiary, 368 U. S. 351, 356-358 (1962) (holding that allotment act “did no more than open the way for non-Indian settlers to own land on the reservation”).

[39] The pager store’s owner identified the three men through a photo lineup as Vargas, Gonzalez, and Miller, and he identified Vargas at trial.

[40] Voter Information Guide, Gen. Elec. (Nov. 8, 2016) text of Prop. 57 section 2, p. 141.

[41] Cal. Code Regs., tit. 15, section 3496(b).

CONSTITUTIONAL LAW

A. Reasonable suspicion for a traffic stop may exist when an officer reasonably believes that the registered owner’s driver’s license has been revoked.

Kansas v. Glover, 140 S. Ct. 1183 (2020)

Facts: In April 2016, Douglas County Kansas Sheriffs’ Office Deputy Mark Mehrer was on routine patrol in Douglas County when he observed a 1995 Chevrolet 1500 pickup truck with a Kansas license plate. Deputy Mehrer ran the license plate number through the Kansas Department of Revenue’s file service. The registration came back to a 1995 Chevrolet 1500 pickup truck and the files indicated the truck was registered to Charles Glover Jr. (“Glover”). The files also indicated that Glover had a revoked driver’s license in the State of Kansas. Deputy Mehrer assumed that the registered owner of the truck, Glover, was also the driver. Deputy Mehrer did not observe any traffic infractions and did not attempt to identify the driver of the truck up until this point. Based solely on the information that the registered owner of the truck had his driver’s license revoked, Deputy Mehrer initiated a traffic stop. Glover was in fact identified as the driver of the truck.

Kansas charged Glover with driving as a habitual violator. Glover filed a motion to suppress all evidence seized during the stop, claiming that the Deputy lacked reasonable suspicion to conduct the traffic stop. The District Court granted the motion. The Court of Appeals reversed, concluding that it was reasonable for Deputy Mehrer to infer that the driver was the owner of the vehicle because “there were specific and articulable facts from which the officer’s common-sense inference gave rise to a reasonable suspicion.”

The Kansas Supreme Court then reversed the decision of the Court of Appeals. The Kansas Supreme Court held that, absent reasonable suspicion of criminal activity, Deputy Mehrer violated the Fourth Amendment by stopping Glover. According to the court, Deputy Mehrer did not have reasonable suspicion to conduct the traffic stop because his inference that Glover was behind the wheel amounted to “only a hunch” that Glover was engaging in criminal activity.^[1] The Kansas Supreme Court explained that Deputy Mehrer’s “hunch” involved “applying and stacking unstated assumptions that are unreasonable without further factual basis,” namely, that “the registered owner was likely the primary driver of the vehicle” and that “the owner will likely disregard the suspension or revocation order and continue to drive.”^[2] The United States Supreme Court granted Kansas’s petition for a writ of certiorari.

Held: The United States Supreme Court noted that it had previously recognized that States have a “vital interest in ensuring that only those qualified to do so are permitted to operate motor vehicles [and] that licensing, registration, and vehicle inspection requirements are being observed.” Delaware v. Prouse, 440 U. S. 648, 658 (1979). The Court explained that under its precedents, the Fourth Amendment permits an officer to initiate a brief investigative traffic stop when he has “a particularized and objective basis for suspecting the particular person stopped of criminal activity.” United States v. Cortez, 449 U. S. 411, 417-418 (1981). “Although a mere ‘hunch’ does not create reasonable suspicion, the level of suspicion the standard requires is … obviously less than is necessary for probable cause.” Prado Navarette v. California, 572 U. S. 393, 397 (2014) (quotation altered). The Court stated that the standard “depends on the factual and practical considerations of everyday life on which reasonable and prudent men, not legal technicians, act.” Ibid., at 402 (quoting Ornelas v. United States, 517 U. S. 690, 695 (1996) (internal quotation marks omitted)). Courts must permit officers to make “commonsense judgments and inferences about human behavior.” Illinois v. Wardlow, 528 U. S. 119, 125 (2000).

The Court then considered whether the facts known to Deputy Mehrer at the time of the stop gave rise to reasonable suspicion. The Court noted that before initiating the stop, Deputy Mehrer observed an individual operating a 1995 Chevrolet 1500 pickup truck with a specific Kansas license plate number. He also knew that the registered owner of the truck had a revoked license and that the model of the truck noted in the records matched the observed vehicle. The Court concluded that from these three facts, Deputy Mehrer drew the commonsense inference that Glover was likely the driver of the vehicle, which provided more than reasonable suspicion to initiate the stop.

The Court added that the fact that the registered owner of a vehicle is not always the driver of the vehicle did not negate the reasonableness of Deputy Mehrer’s inference. The Court explained that the reasonable suspicion inquiry “falls considerably short” of 51% accuracy,^[3] because “[t]o be reasonable is not to be perfect.” (Heien v. North Carolina, 574 U. S. 54, 60 (2014).)

The Court declared that although common sense sufficed to justify Deputy Mehrer’s inference, empirical studies demonstrated that drivers with suspended or revoked licenses frequently continued to drive.^[4] Moreover, Kansas’ license-revocation scheme, which covered drivers who had already demonstrated a disregard for the law or were categorically unfit to drive, reinforced the reasonableness of the inference that an individual with a revoked license would continue to drive. The Court thus found that the concerns motivating the State’s various grounds for revocation lent further weight to the inference that a registered owner with a revoked Kansas driver’s license might be the one driving the vehicle.

The Court emphasized that the scope of its holding here was narrow. The Court explained that the reasonable suspicion standard takes into account the totality of the circumstances, and that the presence of additional facts might have dispelled reasonable suspicion. However, here, the deputy possessed no information sufficient to rebut the reasonable inference that Glover was driving his own truck. Thus, the Court concluded that under the totality of the circumstances observed by Deputy Mehrer, he drew an entirely reasonable inference that Glover was driving while his license was revoked. Accordingly, the United States Supreme Court reversed the judgment of the Kansas Supreme Court, and remanded.

Justice Sotomayor dissented. She disagreed with the majority’s view that seizing Glover’s vehicle was constitutional because drivers with revoked licenses (as opposed to suspended licenses) in Kansas had already demonstrated a disregard for the law or are categorically unfit to drive. Justice Sotomayor found nothing to indicate that Deputy Mehrer had any informed belief about the propensity of unlicensed drivers to operate motor vehicles in the area—much less that he relied on such a belief in seizing Glover. Justice Sotomayor explained that the consequence of the majority’s approach was to absolve officers from any responsibility to investigate the identity of a driver where feasible, and effectively permitted officers to make a stop based merely on a guess or hunch about the driver’s identity.

For a more detailed discussion of this case, please see Client Alert Vol. 35, No. 12, available at www.jones-mayer.com.

B. Eighth Amendment prohibits prison officials from disregarding known substantial risk of serious harm to inmate.

Wilk v. Neven, 2020 U.S. App. LEXIS 13079 (9th Cir. Apr. 23, 2020)

Facts: Units 7 and 8 at Nevada’s High Desert State Prison (“HDSP”) were protective units, where inmates were housed for their own safety. The units were located directly across from one another and shared a common yard. Inmates in Unit 7 were on a different schedule from inmates in Unit 8, limiting opportunities for contact between the two groups. However, opportunities for contact existed, for example, when inmates from the two units waited in the yard to go to classes or traveled through the yard on their way to medical appointments.

In October 2013, both Robert Wilk and Ysaquirle Nunley were housed in Unit 7. On or about October 20, 2013, Nunley threatened to attack and kill Wilk.

Wilk immediately reported the threat to his unit floor officer and was moved from Unit 7 to administrative segregation for his protection. Several days later, on October 29, 2013, Wilk participated in a full classification committee meeting to discuss his housing assignment. According to Wilk, Dwight Neven, the prison warden; Jennifer Nash, an associate warden; and Cary Leavitt, a caseworker all attended the classification meeting, either in person or through a representative. Of the three prison officials (collectively, “defendants”), Leavitt acknowledged that he was at the meeting, while Nash and Neven claimed that they were not at the meeting.

At the classification meeting, Wilk filled out documentation outlining his need for protection and requesting that Nunley be placed on his administrative “enemy list,” which would warn prison staff that Nunley posed a threat to him. Under normal prison procedures, such documentation would be submitted for review by the warden or his designee.

On October 30, 2013, Wilk was moved to Unit 8. He agreed to the move only because he believed Nunley had been removed from Unit 7 and had been put on his enemy list. However, Nunley had actually been returned to Unit 7 and had not been placed on Wilk’s enemy list. During another classification meeting in November, defendants incorrectly told Wilk that Nunley “was still in [disciplinary segregation].”

In February 2014, Nunley attacked Wilk in the yard between Units 7 and 8. “Nunley allegedly exited his cell without authorization and attacked Wilk with stones, gravel, and his fists.” “Wilk suffered extreme physical, emotional, and mental pain,” including a broken nose and damaged eyes. According to Wilk, Nunley had been “released . . . from his cell for a medical appointment.” Defendants conceded that “Nunley broke [away] from his unit” while being transferred by correctional officers.^[5] On the day of the incident, but after the attack, associate warden Nash updated Wilk’s enemy list to include Nunley.

Seeking redress, Wilk exhausted his administrative remedies and filed suit in state court under 42 U.S.C. section 1983 against the defendants, alleging violations of his Eighth Amendment right to be free from cruel and unusual punishment. Defendants removed the action to federal court. Throughout the proceedings in state and federal court, Wilk was pro se.

The District Court granted defendants’ motion for summary judgment. The District Court held that defendants were entitled to qualified immunity because Wilk’s evidence, even if true, did not establish an Eighth Amendment violation. The District Court concluded that there was no violation by defendants Neven and Nash because they had no subjective knowledge of the risk Nunley posed to Wilk. The District Court further concluded that there was no violation by Leavitt because Wilk had not shown “Leavitt was aware of an excessive or intolerable risk to Wilk’s health or safety,” and because Leavitt responded reasonably to any risk he did perceive. Wilk appealed.

Held: The Ninth Circuit Court of Appeals explained that the Eighth Amendment requires prison officials to protect inmates from violence. Farmer v. Brennan, 511 U.S. 825, 833 (1994).^[6] A prison official violates an inmate’s Eighth Amendment right only if that official is “deliberately indifferent”—in other words, if the official is subjectively aware of a substantial risk of serious harm to an inmate and disregards that risk by failing to respond reasonably. Id. at 837, 844-45.

Discussing the two-part test for determining qualified immunity, the Court explained that in addition to considering whether a constitutional violation is alleged, courts ask whether the applicable law was “clearly established” at the time of the incident. Pearson v. Callahan, 555 U.S. 223, 236 (2009). 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 if “every reasonable official would have understood that what he is doing violates th[e] right” at issue.^[7] “[O]fficials can still be on notice that their conduct violates established law even in novel factual circumstances”—i.e., even without a prior case that had “fundamentally similar” or “materially similar” facts. Hope, 536 U.S. at 741.

The Ninth Circuit noted that it had recently addressed clearly established Eighth Amendment law with respect to failure-to-protect claims. “The Supreme Court need not catalogue every way in which one inmate can harm another for us to conclude that a reasonable official would understand that his actions violated [the Eighth Amendment].” Castro v. County of Los Angeles, 833 F.3d 1060, 1067 (9th Cir. 2016) (applying Eighth Amendment standards to a pretrial detainee’s case because, under City of Revere v. Mass. Gen. Hosp., 463 U.S. 239, 244, 103 S. Ct. 2979, 77 L. Ed. 2d 605 (1983), pretrial detainees are entitled to at least as much protection as post-conviction inmates). Once an official is subjectively aware of a substantial risk of serious harm, “clearly established” law requires “only that the [official] take reasonable measures to mitigate the substantial risk.” Castro, supra, at 1067.

Wilk alleged that Leavitt, Nash, and Neven each violated his Eighth Amendment right by failing to protect him from Nunley. Wilk argued that defendants knew from the classification meeting about the risk Nunley posed to Wilk and failed to respond reasonably when they placed Wilk and Nunley back in Units 7 and 8; misled Wilk by telling him Nunley was still in administrative segregation; and failed to update Wilk’s enemy list.

Substantial Risk of Serious Harm

Regarding Farmer v. Brennan’s deliberate indifference standard, the Ninth Circuit first considered whether defendants were aware that there was a substantial risk of serious harm to Wilk. The Court explained that Nunley’s threat to Wilk meant that there was substantial risk that he would attack Wilk and cause him serious harm.

Caseworker Leavitt admitted that he was at the initial classification meeting, which specifically focused on the threat posed by Nunley. Leavitt argued, however, that after Nunley was returned to Unit 7 and Wilk to Unit 8, Leavitt was correct in perceiving that Nunley no longer posed a substantial risk of serious harm. However, the Court found Leavitt’s contention to be inconsistent with Wilk’s evidence. The Court observed that Wilk’s relocation to Unit 8, which Leavitt conceded allowed contact with Unit 7, occurred shortly after Nunley’s threat. At that time, nothing about Wilk’s circumstances had changed. There was no reason to believe that Nunley no longer wished to attack Wilk, and Leavitt knew that Units 7 and 8 shared the same yard. The Court concluded that a reasonable juror could find that Leavitt was subjectively aware of the substantial risk of serious harm to Wilk.

Nash did not concede that she attended the initial classification meeting. However, the Court explained that because the case was before the Ninth Circuit on a grant of summary judgment for the defendants, the Court must view the evidence in the light most favorable to Wilk, the non-moving party.^[8] According to Wilk, Nash was present at the meeting, either in person or through a representative. The sole purpose of that meeting was for Wilk to report Nunley’s threat and to express his fear of Nunley. The Court concluded, that, viewing the facts in the light most favorable to Wilk, a reasonable jury could conclude that Nash was either present at the meeting or received a report from the meeting, and that she was therefore subjectively aware of the risk Nunley posed to Wilk.

Neven also denied that he attended Wilk’s classification meeting, but according to Wilk, Neven was present at the meeting, either in person or through a representative. As with Nash, the Court found that a reasonable jury could conclude that Neven knew what happened at the meeting.

The Court noted, moreover, that Neven supervised the processing of requests to add someone to an inmate’s enemy list. According to defendants’ own evidence, caseworkers could not, on their own, add individuals to an enemy list. The warden or his designee was required to review and approve such requests. Wilk submitted the request to add Nunley to his enemies list on October 29, 2013, and the attack did not occur until over three months later. Construing the evidence in the light most favorable to Wilk, the Court held that a reasonable fact-finder could conclude that Warden Neven was personally aware of the risk posed by Nunley because of his role in supervising the enemy list revision process.

Failure to Respond Reasonably to the Substantial Risk of Serious Harm

The Ninth Circuit next considered that whether defendants responded reasonably to the known substantial risk that Nunley posed to Wilk. The Court concluded that taking Wilk’s evidence as true and viewing it in the light most favorable to him, Leavitt’s response was not reasonable.

The Court explained that Leavitt knew that inmates in Unit 7 and Unit 8 sometimes interacted. Yet he still placed Wilk in Unit 8, knowing that Nunley was in Unit 7 and would have a chance to attack Wilk. The Court also stated that a reasonable jury could find that Leavitt was responsible for submitting Wilk’s request to add Nunley to his enemy list and that he failed to do so.

The Ninth Circuit noted that Leavitt never asserted that he had indeed processed Wilk’s form. Leavitt stated only that it was his usual custom to process the forms, and that he could have made a mistake. The Court explained that because Nunley was not on Wilk’s enemy list, other prison officials had no way of knowing that Wilk needed protection from Nunley. The Court also determined that Leavitt actively misled Wilk by telling him that Nunley remained in disciplinary segregation when instead he had been moved to Unit 7. The Court explained that not only did Leavitt fail to protect Wilk and reduced the ability of other officers to protect Wilk, but he also inhibited Wilk’s own ability to protect himself.

The Ninth Circuit held that any reasonable prison official in the defendants’ position would know that the actions defendants took, and failed to take, violated the Eighth Amendment. None of the defendants could claim ignorance to a prisoner’s right to be protected from violence at the hands of other inmates because that right had been clearly established since the Supreme Court’s decision in Farmer v. Brennan in 1994. See 511 U.S. at 833; Castro, 833 F.3d at 1067. The Court explained that it had recently and explicitly held that it was clearly established that prison officials must “take reasonable measures to mitigate the [known] substantial risk[s]” to a prisoner. Castro, 833 F.3d at 1067.

Taking Wilk’s evidence as true and viewing it in the light most favorable to him, the Court thus concluded that defendants violated his Eighth Amendment right to be protected from serious harm while incarcerated. Accordingly, the Ninth Circuit Court of Appeals reversed, and remanded for additional matters.

For a more detailed discussion of this case, please see Client Alert Vol. 35, No. 17, available at www.jones-mayer.com.

C. The Fourth Amendment did not require suppression of evidence of defendant’s cell phone number, obtained from his phone after arrest, because discovery of the number was inevitable.

People v. Fayed, 9 Cal. 5th 147 (2020)

Facts: Soon after initiating divorce proceedings in October 2007, defendant James Michael Fayed arranged for Pamela Fayed’s murder by paying the couple’s employee, Jose “Joey” Moya, $25,000 to kill Pamela. Moya enlisted two others. In July 2008, Pamela was stabbed to death in a parking garage, moments after she had left a meeting with defendant and their respective attorneys. At the time of her murder, defendant and Pamela were under federal investigation for allegedly laundering money for Ponzi schemes through their e-currency business, Goldfinger Coin & Bullion (“Goldfinger”).

The day after Pamela was killed, defendant called the Ventura County Sheriff’s Office to request a welfare check on his nine-year-old daughter who lived with Pamela in Camarillo. Earlier that morning, a Los Angeles Police Department (“LAPD”) detective had gone to the Camarillo residence to tell Pamela’s daughters of their mother’s death. After receiving word that defendant was heading over to the Ventura County Sheriff’s Office with his attorneys, the detective met defendant there. He told defendant that he was under arrest for Pamela’s murder and that he would be transported to the LAPD West Los Angeles Station. Officers searched defendant incident to arrest and took his Motorola cell phone, which they placed in the front seat of the vehicle. They handcuffed defendant and placed him in the backseat.

The LAPD detective drove defendant some 45 miles from Camarillo to the West Los Angeles Police Station. At the station, defendant invoked his right to remain silent and refused to speak to investigators. An LAPD officer testified that he obtained and possessed defendant’s cell phone for an hour and that he “manipulated” the phone to find the number associated with the phone before handing the cell phone to an FBI agent. Defendant was released two hours later without his Motorola cell phone. Officers returned the cell phone the following Friday when they were serving a search warrant at defendant’s home.

Defendant was later arrested by federal agents. Defendant subsequently admitted to his cellmate, in a conversation that was secretly recorded by the cellmate (and later played for the jury), that defendant had paid Moya to murder Pamela. In this same conversation, defendant asked the cellmate to solicit a hitman to kill Moya to eliminate him as a witness.

In October 2009, defendant filed a pretrial motion under Penal Code section 1538.5 to suppress, arguing evidence was seized from the illegal search of his cell phone. At the pretrial hearing on the suppression motion, the trial court agreed with the prosecution that the only information officers took from that cell phone was the number itself. With this cell phone number, the LAPD in conjunction with the FBI Fugitive Task Force, sought and obtained a court order authorizing the use and installation of wiretap devices for the “Subject Telephone Number.”

After hearing testimony from LAPD detectives, the trial court concluded the search of the cell phone was “illegal,” even if it was incident to a valid arrest. However, it agreed with the prosecution that because there were different sources from which to discover defendant’s cell phone number, including Pamela’s contacts in her cell phone, the evidence was admissible based on the inevitable discovery doctrine.

A Los Angeles County jury found defendant guilty of the first degree murder and of conspiracy to commit murder. The jury further found true the special circumstance allegations of financial gain and lying in wait. Following the penalty phase, the jury returned a verdict of death. The trial court denied defendant’s automatic application for modification of the verdict and sentenced defendant to death. An automatic appeal followed.

Held: The California Supreme Court explained that “[t]he Fourth Amendment to the federal Constitution prohibits unreasonable searches and seizures.” (People v. Bryant, Smith and Wheeler (2014) 60 Cal.4th 335, 365.) A warrantless search is per se unreasonable. (Schneckloth v. Bustamonte (1973) 412 U.S. 218, 219.) “Nevertheless, because the ultimate touchstone of the Fourth Amendment is ‘reasonableness,’ the warrant requirement is subject to certain exceptions.” (Brigham City v. Stuart (2006) 547 U.S. 398, 403.) One such exception, as relevant here, is a search incident to arrest. (United States v. Robinson (1973) 414 U.S. 218, 224.) Another exception, also relevant here, is the inevitable discovery exception. (Nix v. Williams (1984) 467 U.S. 431, 440–450; People v. Robles (2000) 23 Cal.4th 789, 800–801.)

Defendant argued many claims on appeal. In a pretrial motion to suppress evidence seized during several searches, defendant had unsuccessfully argued that his Fourth Amendment right was violated based on the warrantless search and seizure of his cell phone. On appeal, he reiterated the claim, contending that the trial court erred in refusing to suppress.

The Attorney General conceded that the trial court was likely correct that the search of defendant’s Motorola cell phone was unlawful.[9] However, the Supreme Court explained that, even if the search or arrest, or both, were unlawful, the evidence might nevertheless be admissible under the exception of inevitable discovery. (See Nix v. Williams, supra, 467 U.S. 431; People v. Robles, supra, 23 Cal.4th at pp. 800–801.)

The Court explained that under the inevitable discovery doctrine, “illegally seized evidence may be used where it would have been discovered by the police through lawful means.…Since the tainted evidence would be admissible if in fact discovered through an independent source, it should be admissible if it inevitably would have been discovered.’ (Murray v. United States (1988) 487 U.S. 533, 539.) The purpose of the inevitable discovery rule is to prevent the setting aside of convictions that would have been obtained without police misconduct.” (People v. Robles, supra, 23 Cal.4th at p. 800.) The inevitable discovery rule “applies only to evidence obtained as the indirect product, or fruit, of other evidence illegally seized.” (Hernandez v. Superior Court (1980) 110 Cal.App.3d 355, 361.) The prosecution must prove “by a preponderance of the evidence that the information inevitably would have been discovered by lawful means.” (People v. Coffman and Marlow, 34 Cal.4th 1, 62.)

The Supreme Court observed that at the suppression hearing, the prosecution presented evidence that shortly after police recovered Pamela’s cell phone at the crime scene, they accessed the phone’s list of contacts, which included the cell phone number for defendant. The police also “obtained independently” defendant’s cell phone number from a search of Moya’s cell phone. Moreover, the search of Goldfinger’s office led to defendant’s cell phone number. In light of these other sources leading to the discovery of defendant’s cell phone number, the Court concluded that substantial evidence supported the trial court’s finding that the inevitable discovery rule applied and that the evidence of defendant’s cell phone number was admissible. Finding defendant’s other claims also failed, the California Supreme Court affirmed accordingly.

D. County jail inmate plaintiffs do not have standing to contend telecommunication commissions passed on as phone fees to inmates and their families are an unconstitutional tax.

Cty. Inmate Tel. Serv. Cases, 2020 Cal. App. LEXIS 347 (2nd Dist. Apr. 28, 2020)

Facts: Plaintiff inmates in county jails in nine California counties challenged the exorbitant commissions paid by telecommunications companies to the nine counties under contracts giving the telecommunications companies the exclusive right to provide telephone service for the inmates. The telecommunications companies passed on the cost of the commissions to the inmates and their families in the fees charged to use the inmate calling system, the only telephone system available to them. The rates charged to inmates were far greater than those paid for ordinary telephone service. The phone rates would have been much lower if they did not include charges to recoup the commissions paid to the counties. The rates were not related to the cost of the services provided.

The defendants’ share of the revenue collected from inmate calls was referred to as a “site commission,” and in all cases was more than 50 percent of the revenue from inmate calls. For example, Los Angeles County’s agreement with its service provider guaranteed the county the greater of $15 million annually or 67.5 percent of the revenues for specified charges described in the contract.

Plaintiffs filed a putative class action lawsuit “to put an end to this unconscionable practice by California counties.” Plaintiffs alleged the telecommunications companies made a substantial profit even after payment of the commissions; that without the commissions, the charges would have been substantially lower; and the commissions were not based on the actual cost or reasonable value of the inmate calling service. Plaintiffs alleged the full amount of the charges due to the counties was incurred by the customers of the telecommunications company, and not by the telecommunications company itself.

Plaintiffs alleged, among other things, that these fees were unlawful taxes under Proposition 26, which required voter approval of “any levy, charge or exaction of any kind imposed by a local government” unless limited to the reasonable cost or value. (Cal. Const., art. XIII C, section 1, subd. (e).) Because none of the commissions were approved by voters, plaintiffs contended they were entitled to a refund of the illegal taxes.

Defendants demurred to the complaint. The trial court sustained the demurrer without leave to amend, ruling that plaintiffs did not have standing to contend the commissions were an unconstitutional tax. The court entered judgment, and Plaintiffs appealed.

Held: The California Second District Court of Appeal explained that under the California Constitution, all taxes imposed by any local government are subject to voter approval. (Cal. Const., art. XIII C, section 2.). Proposition 26, adopted in 2010, expanded the definition of a “tax” to include “any levy, charge, or exaction of any kind imposed by a local government” (Id., section 1, subd. (e).) A person may not sue to recover excess taxes paid by someone else, “who pays the tax by design or mistake.” (Grotenhuis v. County of Santa Barbara (2010) 182 Cal.App.4th 1158, 1165.)

The Court observed that Plaintiffs “may have paid exorbitant charges to the telephone provider, but they did not make any payment to the county and they had no legal obligation to do so.” The Court stated that Plaintiffs essentially argued that a customer, who paid higher prices because of a tax on a vendor who raises prices in order to recover the amount of the tax from the customer, had standing to seek a refund. The Second District explained that it found no case “where a person who ha[d] not paid the tax to the taxing authority, and who ha[d] no legal responsibility to do so, ha[d] been found to have standing to seek a refund of the tax.” The Court found that no precedents supported Plaintiffs’ claim that a consumer who paid charges to a third party vendor—including one that had inflated its prices to recover the cost of a tax it pays to a local government—had standing to seek a refund of those charges from the taxing authority.

The Court also stated that there was no basis for treating purported Proposition 26 taxes, for standing purposes, differently than sales taxes, or property taxes, or telephone user taxes, or airplane fuel taxes, or any other taxes. The Second District explained that the change that Proposition 26 effected was an expansion in the definition of a tax. The Court explained that the change effected was not an expansion in long-established principles governing who may sue for a refund of that tax – “[t]hat continues to be the person upon whom the tax is imposed by the taxing authority or who has a legal obligation to pay it to the taxing authority. That is not the plaintiffs.”

The Court added that it was the legislative branch, not the courts, that must provide the remedy for the exorbitant telephone charges the inmates paid.

Accordingly, the Court affirmed.

EMPLOYMENT

Employer did not wrongfully terminate plaintiff in violation of Labor Code section 432.7 based on plaintiff’s participation in Arizona’s domestic nonviolence diversion program.

Tilkey v. Allstate Ins. Co., 2020 Cal. App. LEXIS 322 (4th Dist. Apr. 21, 2020)

Facts: In August 2014, Michael A. Tilkey got into an argument with his girlfriend while at her apartment in Arizona. When Tilkey stepped out of the apartment onto the enclosed patio, his girlfriend locked the door behind him. Tilkey banged on the door, demanding to be let in to get his belongings, which were in the bedroom where his girlfriend’s grandson was sleeping. His girlfriend called police. Police arrested Tilkey and charged him under Arizona law with criminal damage deface, possession or use of drug paraphernalia, and disorderly conduct-disruptive behavior. A domestic violence label was attached to the criminal damage and disorderly conduct charges.

Tilkey pled guilty to the disorderly conduct charge only, and the other two charges were dropped. After Tilkey completed a domestic nonviolence diversion program, the disorderly conduct charge was dismissed. Before the disorderly conduct charge was dismissed, Allstate Insurance Company (“Allstate”), Tilkey’s employer for 30 years, terminated his employment based on his arrest for a domestic violence offense and his participation in the diversion program. Allstate informed Tilkey it was discharging him for threatening behavior and/or acts of physical harm or violence to another person.

Tilkey sued Allstate for wrongful termination in violation of Labor Code section 432.7. At trial, Allstate presented evidence that it would have terminated his employment based on after-acquired evidence that Tilkey had circulated obscene and inappropriate e-mails using company resources.

The jury returned a verdict in Tilkey’s favor on all causes of action and awarded him compensatory and punitive damages. The jury advised the court that it did not find Allstate’s after-acquired evidence defense credible, and the trial court agreed. Allstate moved for a judgment notwithstanding the verdict (“JNOV”) and for a new trial. After the trial court denied the motions, Allstate appealed.

Held: The California Fourth District Court of Appeal held that Allstate did not violate Section 432.7 when it terminated Tilkey’s employment based on his plea and his participation in the Arizona domestic nonviolence program. The Court accordingly reversed the order denying Allstate’s motion for JNOV regarding wrongful termination for violation of Section 432.7. The Fourth District remanded to the trial court with directions to enter a judgment for Allstate on these causes of action.

The Court explained that the parties’ disagreement turned on the interpretation of Section 432.7(a)(1), which prohibits employers from utilizing as a factor in employment decisions (1) any record of arrest or detention that did not result in conviction or (2) any record regarding referral to or participation in any pretrial or posttrial diversion program. (Emphasis added.)

The Court observed that the section defined a “conviction” to include “a plea, verdict, or finding of guilt, regardless of whether a sentence is imposed by the court.” (Section 432.7(a)(3)(A).) The Fourth District concluded that Section 432.7 defined conviction to include a plea, regardless of whether the trial court ultimately imposed a sentence. The Court found additional support in the statute’s legislative history for this conclusion.

The Court found that because Tilkey appeared before the Arizona court and entered a guilty plea, which the court accepted, Tilkey’s guilty plea was a conviction under Section 432.7. The Court also found that this information was used by Allstate to terminate Tilkey’s employment in May 2015, before the charges against Tilkey were dismissed in July 2015. Thus, the Fourth District concluded that Allstate did not violate Section 432.7 by using Tilkey’s Arizona arrest as a factor in its decision to terminate his employment.

With regards to Tilkey’s referral to and participation in a nondomestic violence diversion program, the Court noted that Section 432.7 defined a pretrial or posttrial diversion program as any program under various provisions not at issue here, “or any other program expressly authorized and described by statute as a diversion program.” (Section 432.7(j), italics added.)

The Court noted that California abolished domestic violence diversion programs about a decade before Tilkey engaged in the domestic nonviolence program in Arizona. This was due to California’s public policy opposing diversion for domestic violence offenses. The Court accordingly concluded that Section 432.7’s reference to diversion programs excluded out-of-state domestic violence programs, and that Allstate’s consideration of Tilkey’s participation in one did not violate the section.

 FIREARMS

A. Southern District of California grants preliminary injunction enjoining ammunition background check and ammunition anti-importation laws.

Rhode v. Becerra, 2020 U.S. Dist. LEXIS 71893 (S.D. Cal. Apr. 23, 2020)

Facts: Passed in November 2016, Proposition 63 (the “Safety for All Act of 2016”) amended the California Penal Code to regulate the purchase of all firearm ammunition, extending the concept of background checks for firearms. The proposition requires that ammunition sales, deliveries, or transfers in California be conducted by a state-licensed ammunition vendor in a face-to-face transaction. (Penal Code section 30312(a)-(b).^[10]) The initiative also mandates that a California resident who seeks to buy firearm ammunition must first pay for and pass an electronic background check each time he or she wanted to make a purchase. Moreover, a resident may not purchase from vendors outside of California, whether in person or through an internet transaction, unless the ammunition is delivered directly to a California-licensed ammunition vendor, whereupon the resident must then pay for and pass the background check in a face-to-face transaction. Id.; Section 30314.

A group of U.S. citizens residing in California,^[11] an association of firearm owners, and several out-of-state ammunition sellers (“Plaintiffs”) sought a preliminary injunction enjoining California’s new laws pertaining to ammunition. Plaintiffs brought a facial challenge through 42 U.S.C. section 1983 seeking a declaratory judgment that Penal Code sections 30312, 30314, 30342, 30347, 30348, 30350, 30352, 30370, 30385, 30390, and 30395, as well as California Code of Regulations, title 11 section 4263, were unconstitutional on their face or, alternatively, as applied to plaintiffs, because these sections violated the Second and Fourteenth Amendments to the United States Constitution.

Plaintiffs also claimed that the anti-importation provisions of Proposition 63, codified at Sections 30312, 30314, 30370, and 30385, violated the dormant Commerce Clause, Article I, section 8 of the United States Constitution. In the motion for preliminary junction, Plaintiffs also sought a declaratory judgment that these Penal Code sections, as well as California Code of Regulations, title 11 section 4263, were unconstitutional on their face because they discriminated against interstate commerce in violation of the Commerce Clause by erecting a barrier to ammunition sellers in other states, thereby favoring California businesses.

In other words, Plaintiffs’ motion for preliminary injunction sought to keep the status quo as it was previously by enjoining the State from enforcing the ammunition background check system that went into effect on July 1, 2019 and the anti-importation laws that went into effect on January 1, 2018.

Held: The Second Amendment, part of the United States Constitution’s Bill of Rights, provides that “the right of the people to keep and bear arms, shall not be infringed.” U.S. Const. amend. II. The Southern District Court explained that a state’s claim to public safety may not “eviscerate a citizen’s Second Amendment rights.” The Court explained that this right to keep and bear arms is fundamental and is incorporated against the states under the Fourteenth Amendment. McDonald v. City of Chicago, Ill., 561 U.S. 742 (2010). Thus, as the United States Supreme Court made clear in District of Columbia v. Heller (554 U.S. 570 (2008)), “the enshrinement of constitutional rights necessarily takes certain policy choices off the table.” Heller, 554 U.S. at 636.

Although the Second Amendment does not explicitly mention ammunition, “the right to possess firearms for protection implies a corresponding right to obtain the bullets necessary to use them.” Jackson v. City & Cty. of San Francisco, 746 F.3d 953, 967 (9th Cir. 2014) (quotation marks omitted). The right to bear arms includes at least the right to keep and carry ammunition for both self-defense and to be ready to serve in a militia. United States v. Miller, 307 U.S. 174, 179-80 (1939).^[12]

The District Court observed that with regards to related California law, “the State has enacted incrementally a burdensome web of restrictions on the Second Amendment rights of law-abiding responsible gun owners. The ammunition background check system and anti-importation laws add even more complexity….”[13] The Court discussed the ammunition background check system, detailing the obstacles, financial and otherwise, that different types of would-be ammunition purchasers encountered at various points in the process.

In their motion for preliminary injunction, Plaintiffs argued that the new ammunition background check system violated the Second Amendment. In arguing against the motion for preliminary injunction, the California Attorney General contended that the system successfully prevented prohibited persons from acquiring ammunition and that rejections to lawful would-be purchasers were easily resolved. The Attorney General argued that the background check system was a reasonable fit to achieve the State’s legitimate public safety interest of keeping ammunition out of the hands of prohibited Californians.

Considering the likelihood of the petition’s success on the merits, the Southern District observed that for a Second Amendment challenge in the Ninth Circuit, courts look at how close the challenged statute strikes at the core of the Second Amendment right, followed by a determination of how severe the statute burdens the Second Amendment right.

Here, the Southern District found that the California statutes directly burdened the Second Amendment right directly to its core, which was the right to defend one’s self, family, and home because under California law resulting from Proposition 63, a citizen resident unable to pass the background check for whatever reason may not purchase ordinary ammunition at all. The Court also found that the California state statutes not only burdened the core of the Second Amendment, but often imposed upon the core the most severe burden — a complete ban. The Court noted that at least 101,047 or 16.4% of applying citizen residents had not been able to buy ammunition, thereby suffering the severest burden. The Court explained that “because a severe restriction on the core right of self-defense amounts to a destruction of the Second Amendment right, it is unconstitutional under any level of scrutiny.”

The Southern District nonetheless proceeded to apply the “overly relaxed” standard of intermediate scrutiny to the challenged law, which the Attorney General argued was appropriate. The intermediate scrutiny test under the Second Amendment requires that “(1) the government’s stated objective … be significant, substantial, or important; and (2) there…be a ‘reasonable fit’ between the challenged regulation and the asserted objective.” Silvester v. Harris, 843 F.3d 816, 821-22 (9th Cir. 2016) (quoting United States v. Chovan, 735 F.3d 1127, 1139 (9th Cir. 2013)).

The Southern District determined that the Attorney General identified a public safety interest in preventing criminals from buying ammunition at gun shops, sporting goods stores, and other lawful vendors, in preventing violent felons and other persons prohibited from possessing firearms and ammunition to perpetuate gun violence. Thus, the State’s objective passed the first prong of the intermediate scrutiny test.

What remained was the second prong of the test. Under intermediate scrutiny, the government must carry the burden of establishing that its regulations are reasonably and narrowly tailored to the government’s significant objective.

The Court noted that California already criminalized the possession of ammunition by felons, prohibited persons, and aliens unlawfully in the United States, even without the background check system as implemented under Proposition 63. This prompted to Court to ask: “Is a state-wide blanket background check system and anti-importation barriers for purchasing ammunition on top of existing felon-in-possession and alien-in-possession laws a reasonable fit for achieving these important goals?” The Court was skeptical.

Here, the Court explained that the government had not demonstrated that the blanket background check system would alleviate harm in a direct and material way without unnecessarily burdening the rights of citizens. The Court explained that so far, the benefit of the background check laws was “that a very small number of prohibited persons have been denied authorization to buy ammunition at a licensed ammunition vendor.”

Considering the burden on the other hand, the Court observed that over 101,047 citizen residents who were not prohibited persons, yet still failed a background check, were unable to exercise their Second Amendment right to acquire ammunition for their firearms. The Court stated that the California background check system’s long-term average rejection rate of 16.4% suggested that the system was deeply flawed, observing that Californians purchasing firearms using the federal NICS background system failed background checks at a much lower rate of approximately 1.1%.^[14]

The Court also believed that “an untold additional number of ammunition purchasers were turned away or deterred and did not even start a background check” due to the difficulties of passing through the main entry point into the ammunition background check system. The Court posited that the background checks could have had “incredibly chilling effects on law-abiding gun owners,” or possibly “the onerous and inescapable burden these background check laws impose are forcing purchasers to find alternative, possibly illicit, sources.” Moreover, only 14% of the 4.5 million California gun owners on the electronic Automated Firearms System (“AFS”) list had tried to buy ammunition with a background check.

The Southern District Court cited an obvious absence of legislative history for California’s ammunition background check “experiment” to support the State’s cause. As for studies in the record proffered by the State, the Court determined that none of the studies suggested that the new regulations would achieve the State’s interest of reducing gun violence. The Court found that the State’s “experiment [wa]s based on a naive assumption that prohibited persons will subject themselves to background checks to buy ammunition,” adding that “criminals, tyrants, and terrorists don’t do background checks.” Meanwhile, the Court stated that these ammunition statutes unduly and severely burdened the Second Amendment rights of responsible, gun-owning citizens who desired to lawfully buy ammunition. The Southern District determined that the evidence did not support the notion that Proposition 63’s background check and anti-importation provisions for ammunition acquisition would make the public safer.

The Court observed that the ammunition background check laws were not tailored to differentiate between different amounts and types of ammunition, nor between different types of people (e.g. between a former law enforcement officer and an edgy-looking, furtive-glancing, impatient and angry customer). The laws were not tailored to differentiate between ammunition needs in rural and urban areas.

For these reasons, the Court concluded the government had not carried its burden of demonstrating that the restriction of Second Amendment rights resulting from the laws here were a reasonable fit for the asserted substantial interest.

The Southern District accordingly concluded that Plaintiffs had made a sufficient showing of their likelihood of succeeding on the merits of the Second Amendment claims.

Plaintiffs also claimed that Proposition 63’s anti-importation provisions violated the Commerce Clause because they favored businesses in California by erecting a barrier to ammunition sellers in other states. The Commerce Clause, Article I, section 8, clause 3 of the United States Constitution, gives Congress the power “[t]o regulate commerce … among the several states.” Courts have consistently held that this affirmative grant of power to Congress includes a negative implication, which restricts the ability of states to regulate and interfere with interstate commerce. Tenn. Wine & Spirits Retailers Ass’n v. Thomas, 139 S. Ct. 2449, 2459 (2019); Camps Newfound/Owatonna, Inc. v. Town of Harrison, Maine, 520 U.S. 564, 571 (1997). That restriction upon the states, referred to as the dormant Commerce Clause, “prohibits economic protectionism — that is, ‘regulatory measures designed to benefit in-state economic interests by burdening out-of-state competitors.’” Fulton Corp. v. Faulkner, 516 U.S. 325, 330 (1996).

The Supreme Court has held that “in all but the narrowest circumstances state laws violate the Commerce Clause if they mandate differential treatment of in-state and out-of-state economic interests that benefits the former and burdens the latter.” Granholm v. Heald, 544 U.S. 460, 472, (2005) (citing Oregon Waste Systems, Inc. v. Department of Environmental Quality of Ore., 511 U.S. 93, 99 (1994)); see also New Energy Co. of Ind. v. Limbach, 486 U.S. 269, 274 (1988). The Southern District explained that under Proposition 63, the sole circumstance of residence in another state foreclosed a vendor of ammunition from selling directly to California residents, despite Granholm’s declaration that “[t]he mere fact of non-residence should not foreclose a producer in one State from access to markets in other States.” Id. (citing H.P. Hood & Sons, Inc. v. Du Mond, 336 U.S. 525, 539 (1949)).

Before January 1, 2018, any merchant physically located outside California was permitted to sell ammunition directly to a customer in California, whether the transaction was accomplished by U.S. Mail, email, an internet web store, a text message, or a telephone. Proposition 63 prohibited a seller of ammunition physically located beyond California from selling directly to customers in California. (Section 30312(b)). Now an out-of-state merchant must open a physical store in California and obtain a California ammunition vendor license to conduct such transactions. The only alternative is to hire and arrange for a third-party California-based and California-licensed ammunition vendor to complete the delivery. The out-of-state product must be delivered first to the California vendor and then from the California vendor to the California customer. In-state ammunition merchants are not required to accept such a delivery from a non-California merchant.

The Court observed that due to the face-to-face delivery requirement in Proposition 63, out-of-state businesses who want to continue to sell directly to their California customers will have to open not just one store inside California, but stores in every local market inside California in which they seek to sell ammunition. Consequently, California’s resident businesses are the only businesses that may sell directly to ammunition consumers. Sales of any quantity, by all other sellers, anywhere else in the country, must be funneled through a California resident vendor licensed to sell ammunition.

The District Court explained that courts analyze dormant Commerce Clause claims using the Supreme Court’s two-tiered approach. Pharm. Research & Mfrs. Of Am. v. Alameda, 768 F3d 1037, 1041 (9th Cir. 2014). The first tier test is whether the state law discriminates directly against interstate commerce or directly regulates interstate commerce. Id. If the state law does either, “it violates the Commerce Clause per se, and we must strike it down without further inquiry.” Id. (citation omitted). The Court concluded that Proposition 63 did both and thus directly violated the dormant Commerce Clause.

The Court found reason to infer that Proposition 63 would significantly burden interstate commerce in ammunition, noting that out-of-state firms could administer the same background checks for ammunition purchases as California sellers did.

The Attorney General contended that stopping the flow of ammunition into the state was a matter of public safety, but the Southern District found that the State had not provided any evidence that out-of-state ammunition businesses had been selling ammunition to prohibited persons in California. The Court speculated that impatient or circumspect criminals would not be likely to attempt to purchase from out-of-state vendors. The Court concluded that, under Granholm, which “require[d] the clearest showing to justify discriminatory state regulation” (Id., 544 U.S. at 490), California’s purely legal argument without evidence did not suffice.

The United States District Court for the Southern District of California accordingly granted Plaintiffs’ motion for preliminary injunction, and enjoined the State of California from enforcing the ammunition sales background check provisions in California Penal Code sections 30370(a) through (d) and 30352, and the ammunition anti-importation provisions in Sections 30312(a) and (b), 30314(a).

The next day after the District Court’s entering a preliminary injunction, the Ninth Circuit issued a stay of the preliminary injunction following the filing of an interlocutory appeal and request for stay by the Attorney General. As such, at the time of this writing, the preliminary injunction issued by the District Court enjoining the State of California from enforcing the ammunition sales background check provisions set forth in California Penal Code sections 30370(a) through (d) and 30352, and the ammunition anti-importation provisions in Sections 30312(a) and (b), 30314(a), currently is stayed.

For a more detailed discussion of this case, please see Client Alert Vol. 35, No. 14, available at www.jones-mayer.com.

B. Supreme Court “ducks” concerning whether New York City ordinance imposing travel restrictions upon handgun licensees violates the Second Amendment.

N.Y. State Rifle & Pistol Ass’n v. City of N.Y., 2020 U.S. LEXIS 2528 (Apr. 27, 2020)

Facts: In 2013, three individuals and one organization representing New York gun owners (collectively, “Petitioners”) brought suit under 42 U.S.C. section 1983 against New York City (“City”) and the License Division of the New York City Police Department (“NYPD”). The petitioners claimed that a City rule restricting the transport of firearms (38 N. Y. C. R. R. section 5-23 (“Section 5-23”)) violated the Second Amendment. They sought declaratory and injunctive relief against enforcement of Section 5-23, insofar as the rule prevented their transport of firearms to a second home or shooting range outside of the City.

The ordinance that the individuals challenged was adopted in 2001. Before then, the NYPD issued both premises licenses, which allowed licensees to keep the registered handgun at a home or business, and so-called “target licenses,” which allowed licensees to transport their handguns to specified, preapproved ranges outside of the City. Target licenses were eliminated in 2001, and premises licensees could practice with their guns only if they traveled “directly to and from an authorized small arms range/shooting club,” among other restrictions. Section 5-23(a)(3) (in effect prior to July 21, 2019) (emphasis added). The only “authorized” ranges or clubs were seven ranges located in New York City.

Each individual petitioner stated that he regularly traveled outside the City to ranges and shooting competitions before learning of the restriction imposed by Section 5-23. Petitioners’ amended complaint maintained that the Second Amendment requires “unrestricted access to gun ranges and shooting events in order to practice and perfect safe gun handling skills.” The amended complaint’s prayer for relief sought an injunction against enforcement of the travel restriction, as well as attorney’s fees, costs of suit, declaratory relief . . . and “[a]ny such further relief as the [c]ourt deems just and proper.” The City argued that the rule was lawful because travel restrictions were “necessary to protect the public safety insofar as the transport of firearms outside the home potentially endangers the public.”

The District Court denied petitioners’ motions for preliminary injunction and summary judgment and granted the City’s cross-motion for summary judgment. The District Court deemed any burden on petitioners’ Second Amendment right “minimal or, at most, modest.” The Second Circuit Court of Appeals affirmed, characterizing the ordinance’s burdens on petitioners’ Second Amendment right as “trivial.”

The Supreme Court granted certiorari in January 2019. The City subsequently amended their rule so that holders of premises licenses were allowed to transport firearms to a second home or shooting range outside of the City, provided that the licensees traveled “directly” between their residences and the permitted destinations. The State of New York amended its firearm licensing statute, abrogating any local law, rule, or regulation that prevented the holder of a premises license from transporting a licensed handgun “directly to or from” an authorized range, competition, or second home.

Petitioners argued that the new rule might still infringe their rights because they may not be allowed to stop for coffee, gas, food, or restroom breaks on the way to their second homes or shooting ranges outside of the city. The City countered that such routine stops were entirely permissible under the new rule.

Majority View

The Supreme Court did not engage in the dispute about the City’s new rule, however. The Court instead found that the City’s changes to the rule provided the “precise relief that petitioners requested in the prayer for relief in their complaint,” and concluded that Petitioners’ claim for declaratory and injunctive relief with respect to the City’s old rule was therefore moot.

Citing Lewis v. Continental Bank Corp.,^[15] the Court explained its disposition: “Our ordinary practice in disposing of a case that has become moot on appeal is to vacate the judgment with directions to dismiss. [Internal citations omitted.] However, in instances where the mootness is attributable to a change in the legal framework governing the case, and where the plaintiff may have some residual claim under the new framework that was understandably not asserted previously, our practice is to vacate the judgment and remand for further proceedings in which the parties may, if necessary, amend their pleadings or develop the record more fully. See Diffenderfer v. Central Baptist Church of Miami, Inc., 404 U. S. 412, 415, 92 S. Ct. 574, 30 L. Ed. 2d 567 (1972).” Accordingly, the Supreme Court vacated the judgment of the Second Circuit Court of Appeals.

The Court also remanded for further proceedings as appropriate, explaining that on remand, the Court of Appeals and the District Court could consider whether petitioners could still add a claim for damages in this lawsuit with respect to the City’s old rule.

Justice Kavanaugh concurred with the majority that the petitioners’ claim against the old rule was moot and that their new claims should be addressed on remand by the Court of Appeals and District Courts. However, he also shared the concern expressed by the dissenting opinion that some federal and state courts may not be properly applying Heller and McDonald v. Chicago, 561 U. S. 742 (2010). Justice Kavanaugh referred to the several Second Amendment cases with petitions for certiorari pending before the Court as potential paths to address this concern.

The Dissent

Justice Alito, joined by Justice Gorsuch and Justice Thomas,^[16] dissented. The dissent maintained that the case was not moot, explaining that “‘a case “becomes moot only when it is impossible for a court to grant any effectual relief whatever to the prevailing party.”‘ Chafin v. Chafin, 568 U. S. 165, 172 (2013) (emphasis added). The dissent said it was entirely possible for petitioners to obtain more relief, and therefore the case was not moot. The dissent observed that Petitioners had asserted in their complaint that the Second Amendment guaranteed them, as holders of premises licenses, “unrestricted access” to ranges, competitions, and second homes outside of New York City, but the dissent stated that the new laws did not provide them that result. Moreover, the dissent maintained that had the Supreme Court held that the old City rule violated the petitioners’ Second Amendment right, the District Court on remand could award damages.^[17]

Having determined the case was not moot, the dissent next addressed the merits of the claim. Characterizing it as “not a close question,” the dissent determined that the old City rule violated the Second Amendment. The dissent stated that its conclusion followed directly from the Supreme Court’s decision in District of Columbia v. Heller, which held that the Second Amendment protects the right of ordinary Americans to keep and bear arms. Two years later, the Supreme Court’s decision in McDonald v. Chicago established that this right was fully applicable to the states.

Expanding on Heller, the dissent explained that Court there had held that a District of Columbia rule that effectively prevented a law-abiding citizen from keeping a handgun in the home for purposes of self-defense constituted a core violation of the Second Amendment.^[18] Heller based this decision on the scope of the right to keep and bear arms as it was understood at the time of the adoption of the Second Amendment.^[19] Heller recognized that history supported the constitutionality of some laws limiting the right to possess a firearm, such as laws banning firearms from certain sensitive locations and prohibiting possession by felons and other dangerous individuals. See id., at 626-627; see also McDonald, 561 U. S., at 787, 904. However, history provided no support for laws like the District of Columbia’s rule. See 554 U. S., at 629-634.

The dissent declared that the same core Second Amendment right was at issue in the instant case, the right to keep a handgun in the home for self-defense. The dissent explained that a necessary concomitant of this right was the right to take a gun outside the home for certain purposes, such as for maintenance or repair, or to transfer ownership lawfully, which City law allowed. Another corresponding purpose, the dissent explained, was to take a gun to a range in order to gain and maintain the skill necessary to use it responsibly. As Heller expressed, “‘to bear arms implies something more than the mere keeping [of arms]; it implies the learning to handle and use them in a way that makes those who keep them ready for their efficient use.’” 554 U. S., at 617-618 (quoting T. Cooley, Constitutional Law 271 (1880)); see also Luis v. United States, 578 U. S. ___, ___, 136 S. Ct. 1083, 194 L. Ed. 2d 256, 272 (2016) (Thomas, J., concurring in judgment) (“The right to keep and bear arms . . . ‘implies a corresponding right . . . to acquire and maintain proficiency in their use’”); Ezell v. Chicago, 651 F. 3d 684, 704 (CA7 2011) (“[T]he core right wouldn’t mean much without the training and practice that make it effective”).

The City argued that municipalities restricted the places within their jurisdiction where a gun could be fired, noting that the Second Amendment surely did not mean that a New York City resident with a premises license was allowed to practice in Central Park or Times Square. The dissent rejected this argument as inapposite here because Petitioners had not claimed the right to fire weapons in public places within the City. Instead, they claimed they had a right to practice at ranges and competitions outside the City, and there had been no showing by the City, or the courts below, that had demonstrated that municipalities during the founding era prevented gun owners from taking their guns outside city limits for practice.

Beyond the absence of historical support, the dissent stated that the weakness of the City’s showing that its travel restriction significantly promoted public safety left no doubt that the New York City ordinance was unconstitutional. The City relied heavily on statements by the commanding officer of the NYPD License Division. The dissent decided these statements were not persuasive and irrelevant to the justification for drawing a distinction between trips to a range in the City and trips to a range in a neighboring jurisdiction.

In sum, the dissent determined that the City’s travel restriction burdened the core right recognized in Heller. History provided no support for such a restriction, nor did the City’s weak and unsubstantiated public safety arguments. Because the dissent concluded that the case was not moot, and that the City’s rule was unconstitutional, the dissent would have reversed and remanded the case to the District Court to provide appropriate relief. The dissent also expressed concern that the treatment of Heller by the lower courts in this case was typical of how lower courts had treated Heller in other cases. Justice Kavanaugh expressed in his concurrence that he shared this concern.

For a more detailed discussion of this case, please see Client Alert Vol. 35, No. 16, available at www.jones-mayer.com/.

MISCELLANEOUS

Defendant committed substantial step toward committing robbery by arming himself, driving toward targeted warehouse, and turning around only when he knew there was a large police presence.

United States v. Dominguez, 954 F.3d 1251 (9th Cir. 2020)

Facts: In August 2011, Monico Dominguez and Milton Fierro robbed the Garda Cash Logistics armored car warehouse in Santa Rosa, California. Wearing masks and armed with an AK-47 rifle and either a 9-millimeter or a .45 caliber handgun, the two men snuck into the Garda warehouse. They pointed their guns at two guards, put them on the ground, tied their hands and feet with rope, and demanded access to the vault. The robbers made off with over $900,000 in cash and two guns belonging to one of the guards.

About a year later, Dominguez approached his friend Kevin Jensen and offered him $100,000 to participate in another Garda robbery, this time of a Garda armored car. When Jensen found out that the FBI was offering a $100,000 reward for information about the previous year’s Garda robbery, he contacted the FBI and became a confidential informant. The FBI was consequently able to thwart the second robbery before it was completed.

In August 2012, Dominguez and Jensen drove toward the Garda warehouse intending to hold up an armored car. This time, Dominguez was armed with a .357 revolver. Tipped off by Jensen, the FBI and local enforcement officers staged a fake crime scene near the warehouse to make it difficult for a vehicle to get close to it. While en route to the warehouse, Dominguez received a phone call, after which Dominguez told Jensen they had to terminate the plan because of the unusual law enforcement activity near the Garda building. Dominguez drove to within about a block or so of the warehouse before turning around. Dominguez was arrested the following day and charged with Hobbs Act robbery of the Garda warehouse in 2011, attempted Hobbs Act robbery of a Garda armored car in 2012, possession of firearms in furtherance of both crimes, conspiracy, money laundering, and structuring transactions.

In his closing argument, the prosecutor argued that Dominguez had completed a “substantial step” toward the 2012 attempted robbery, because he turned his car around only in response to law enforcement presence, not because he’d had a change of heart. Dominguez’s counsel did not object to the prosecutor’s arguments, and conceded (with his client’s consent) the defendant’s guilt of the attempted robbery.

The jury convicted Dominguez of several counts, including attempted Hobbs Act robbery for the August 2012 events and Hobbs Act robbery. The District Court sentenced Dominguez to prison. Dominguez appealed.

Held: The Ninth Circuit Court of Appeals held that the evidence was sufficient to support Dominguez’s conviction of attempted Hobbs Act robbery. The Court explained that to sustain the attempted robbery conviction, the government must prove that (1) Dominguez had the intent to commit the robbery; and (2) Dominguez “took a substantial step toward” committing that robbery. United States v. Nelson, 66 F.3d 1036, 1042 (9th Cir. 1995). Dominguez conceded that the government’s evidence of his intent to commit the August 2012 robbery was not subject to reasonable dispute.

The Court noted that Dominguez’s counsel had repeatedly conceded Dominguez’s guilt of the attempted robbery.[20] Moreover as to the second “substantial step toward” element, the Court found that the evidence overwhelmingly showed that Dominguez had the specific intent to commit the robbery and had taken a “substantial step” toward its completion – arming himself with a handgun and driving to within about a block of the planned robbery with his accomplice, turning around only because he got ensnared in the fake crime scene.

Dominguez argued that he did not take a substantial step toward the robbery because he turned around about a block away from the warehouse, a physical distance greater than the proximity of the would-be robbers in United States v. Buffington[21] and United States v. Still[22] (cases in which the Ninth Circuit had found that the evidence was insufficient to show that defendants had taken a substantial step). However, the Court explained that what mattered was whether the defendants had progressed far enough that, absent independent circumstances, they would complete the robbery.

In light of recent Supreme Court cases, the Ninth Circuit reiterated its previous holding that Hobbs Act armed robbery was a crime of violence for purposes of 18 U.S.C. section 924(c)(3)(A). See United States v. Mendez, 992 F.2d 1488, 1491 (9th Cir. 1993). The Court held that when a substantive offense was a crime of violence under Section 924(c)(3)(A), an attempt to commit that offense was also a crime of violence.[23]

The Ninth Circuit stated that attempted Hobbs Act armed robbery was a crime of violence for purposes of Section 924(c) because its commission required proof of both the specific intent to complete a crime of violence, and a substantial step actually (not theoretically) taken toward its completion. The Court explained that it did not matter that the substantial step was not itself a violent act or even a crime; what mattered was that the defendant specifically intended to commit a crime of violence and took a substantial step toward committing it. The Court observed that the definition of “crime of violence” in Section 924(c)(3)(A) explicitly included not just completed crimes, but those felonies that had the “attempted use” of physical force as an element; and that it was impossible to commit attempted Hobbs Act robbery without specifically intending to commit every element of the completed crime, which included the commission or threat of physical violence.

The Ninth Circuit reversed the conviction for money laundering, but affirmed the remainder of the judgment. Dissenting in part, Judge Nguyen wrote that attempted Hobbs Act robbery plainly did not fit the definition of a crime of violence under the elements clause, Section 924(c)(3)(A), because attempted Hobbs Act robbery could be committed without any actual use, attempted use, or threatened use of physical force.

[1] 308 Kan. 590, 591, 422 P. 3d 64, 66 (2018).

[2] Id., at 595-597, 422 P. 3d, at 68-70.

[3] See United States v. Arvizu, 534 U. S. 266, 274 (2002).

[4] See, e.g., 2 T. Neuman et al., National Coop. Hwy. Research Program Report 500: A Guide for Addressing Collisions Involving Unlicensed Drivers and Drivers With Suspended or Revoked Licenses, p. III-1 (2003) (noting that 75% of drivers with suspended or revoked licenses continue to drive).

[5] The quotes in the paragraph are taken the federal District Court’s recount of the attack.

[6] The Ninth Circuit cited its applications of Farmer v. Brennan in Lemire v. California Department of Corrections and Rehabilitation, 726 F.3d 1062, 1068 (9th Cir. 2013); Clem v. Lomeli, 566 F.3d 1177, 1180 (9th Cir. 2009); and Cortez v. Skol, 776 F.3d 1046, 1049 (9th Cir. 2015).

[7] Taylor v. Barkes, 575 U.S. 822, 135 S.Ct. 2042, 2044, 192 L. Ed. 2d 78 (2015) (per curiam) (quotation marks omitted).

[8] See, e.g., Estate of Lopez ex rel. Lopez v. Gelhaus, 871 F.3d 998, 1006 (9th Cir. 2017).

[9] See Riley v. California (2014) 573 U.S. 373, 387: “[o]nce an officer has secured a phone and eliminated any potential physical threats … data on the phone can endanger no one”.

[10] (a)

(1) Commencing January 1, 2018, the sale of ammunition by any party shall be conducted by or processed through a licensed ammunition vendor.

(2) When neither party to an ammunition sale is a licensed ammunition vendor, the seller shall deliver the ammunition to a vendor to process the transaction. The ammunition vendor shall promptly and properly deliver the ammunition to the purchaser, if the sale is not prohibited, as if the ammunition were the vendor’s own merchandise. If the ammunition vendor cannot legally deliver the ammunition to the purchaser, the vendor shall forthwith return the ammunition to the seller. The ammunition vendor may charge the purchaser an administrative fee to process the transaction, in an amount to be set by the Department of Justice, in addition to any applicable fees that may be charged pursuant to the provisions of this title.

(b) Commencing January 1, 2018, the sale, delivery, or transfer of ownership of ammunition by any party may only occur in a face-to-face transaction with the seller, deliverer, or transferor, provided, however, that ammunition may be purchased or acquired over the Internet or through other means of remote ordering if a licensed ammunition vendor initially receives the ammunition and processes the transaction in compliance with this section and Article 3 (commencing with Section 30342) of Chapter 1 of Division 10 of Title 4 of this part.

[11] The group included an Olympic medalist in skeet and double trap shooting who used specialized competition ammunition and a Master Hunter Education Instructor under the California Department of Fish and Wildlife Hunter Education Program.

[12] See also Luis v. United States, 136 S. Ct. 1083, 1097 (2016) (Thomas, J., concurring) (quoting Jackson, 746 F.3d at 967): “Constitutional rights thus implicitly protect those closely related acts necessary to their exercise . . . The right to keep and bear arms, for example ‘implies a corresponding right to obtain the bullets necessary to use them.’”

[13] The Court observed that “California already has an universal background check for firearms, an ‘assault weapon’ ban, a ban on magazines holding more than 10 rounds, a gun registry, firearm confiscation orders, a minimum gun purchase age of 21 years, a limit of one firearm purchase per month, a requirement that would-be gun buyers first earn a safety certificate, a 10-day waiting period on gun purchases even for persons who already own a firearm, a ban on campus carry for self-defense, a ban on K-12 teachers being armed for self-defense, a ban on openly carrying a firearm, a highly restrictive concealed carry law, and a moribund roster of handguns permitted for retail sale, among others.”

[14] U.S. Department of Justice, Bureau of Justice Statistics, Background Checks for Firearm Transfers, 2015 Statistical Tables, (Nov. 2017) at Table 3.

[15] 494 U. S. 472, 482-483 (1990).

[16] Justice Thomas did not join Part IV-B of the dissent.

[17] Section 1983 claims permit the recovery of damages.

[18] 554 U.S., at 635.

[19] Id., at 577-605, 628-629.

[20] See, e.g., United States v. Bentson, 947 F.2d 1353, 1356 (9th Cir. 1991).

[21] 815 F.2d 1292 (9th Cir. 1987).

[22] 850 F.2d 607 (9th Cir. 1988).

[23] See United States v. Ingram, 947 F.3d 1021 (7th Cir. 2020); United States v. St. Hubert, 909 F.3d 335 (11th Cir. 2018); Hill v. United States, 877 F.3d 717 (7th Cir. 2017).

CONSTITUTIONAL LAW

A. Search of parolee’s cellphone did not violate Fourth Amendment because legitimate interest existed in determining whether defendant violated his parole and there was reasonable suspicion that defendant was involved in residential burglary.

People v. Delrio, 45 Cal. App. 5th 965 (1st Dist. 2020)

Facts: In September 2014, residents of a Redwood City home reported a residential burglary. A surveillance video showed two individuals walking from a black truck to the burglarized house and then walking away, each carrying a sack. A sheriff’s deputy contacted Alejandro Manuel Delrio and told him that a vehicle registered to him had been involved in a burglary. Delrio denied any involvement, claimed that the truck must have been used without his permission if it was involved in the burglary, and then completed paperwork to report the vehicle stolen. The sheriff’s deputy then viewed the surveillance video and concluded that one of the two individuals shown in the video had “a very close resemblance to [Delrio].” The sheriff’s deputy recommended that Delrio be contacted again as a suspect. After conducting a records check on Delrio, police learned that Delrio was on active parole. As a parolee, Delrio was subject to a statutorily mandated parole term that required him to submit to warrantless and suspicionless searches of his person, his residence, and any property under his control by a parole officer or other peace officer at any time.

Several police officers went to Delrio’s house to conduct a parole search. During the search of the house, officers located a cell phone that belonged to Delrio. After an officer demanded the phone’s passcode, Delrio complied. A detective downloaded the contents of the phone before giving it back to Delrio. The officers then left, but Delrio asked them to return to the house, whereupon Delrio showed a cell phone photo supporting his subsequent admission that he was involved in the burglary and had sold the stolen jewelry.

Delrio was charged by information with first degree burglary and other offenses. The trial court denied Delrio’s motion to suppress the evidence obtained from the cell phone search and all statements made by him as fruit of that search. Delrio then pleaded guilty to first degree burglary and admitted enhancements. The trial court sentenced Delrio to seven years in state prison. Delrio appealed, arguing against the trial court’s denial of his motion suppress.

Held: The California First District Court of Appeal explained that with regard to police searches and seizures, “[t]he ‘touchstone of the Fourth Amendment is reasonableness,’” which “is measured in objective terms by examining the totality of the circumstances.” (Ohio v. Robinette (1996) 519 U.S. 33, 39.) In determining reasonableness, courts assess the degree to which the search “intrudes upon an individual’s privacy,” as well as “the degree to which it is needed for the promotion of legitimate governmental interests.” (United States v. Knights (2001) 534 U.S. 112, 118–119.)

A warrantless search is per se unreasonable under the Fourth Amendment absent a recognized exception. (U.S. Const., 4th Amend.; Katz v. United States (1967) 389 U.S. 347, 357.) A parole search conducted pursuant to California Penal Code section 3067 (b)(3) constitutes one of those exceptions. (Samson v. California (2006) 547 U.S. 843; People v. Schmitz (2012) 55 Cal.4th 909, 916.) Under that statute, “every inmate eligible for release on parole ‘is subject to search or seizure by a … parole officer or other peace officer at any time of the day or night, with or without a search warrant or with or without cause.’” (Schmitz, at p. 916.)

The First District noted that because such searches are mandated as a term of every parolee’s release, “an officer’s knowledge of a parolee’s status is equivalent to knowledge of the applicable search condition.”[1] As the California Supreme Court has emphasized, “[w]arrantless, suspicionless searches are a vital part of effective parole supervision” in California. (Schmitz, at p. 924; accord, Samson, supra, at p. 854.)

The First District observed that “an inmate-turned-parolee remains in the legal custody of the California Department of Corrections [and Rehabilitation] through the remainder of his term … and must comply with all of the terms and conditions of parole” (Samson, supra, at p. 851.), including the term permitting warrantless and suspicionless searches at any time.[2] Therefore, parolees “have severely diminished expectations of privacy by virtue of their status alone” (Samson, supra, at p. 852) in the determination of reasonableness for Fourth Amendment searches and seizures.

On appeal, Delrio argued the search violated his Fourth Amendment rights because his written parole conditions gave him a reasonable expectation of privacy in the contents of his cell phone. Delrio argued that because the form used by the California Department of Corrections and Rehabilitation (“CDCR”) to notify him of his parole conditions did not have boxes checked for certain “special conditions of parole” that would have required him to give his consent to, and any passwords for, searches of his electronic devices, he was not provided clear and unambiguous notice that his cell phone was subject to a parole search

The Court first noted that Delrio did not cite any cases in which a search or seizure of a parolee’s cell phone was invalidated under the Fourth Amendment, nor could the Court find any such cases. Thus, the Court stated that “[t]he issue presented here is whether unchecked boxes on defendant’s CDCR form, standing alone, is a circumstance warranting a break with this clear trend.”

The Court noted that the first page of Delrio’s CDCR form here stated: “You, your residence, and any property under your control are subject to search or seizure by a probation officer, an agent or officer of the California Department of Corrections and Rehabilitation, or any other peace officer, at any time of the day or night, with or without a search warrant, with or without cause.” In subsequent pages, the form lists special conditions with boxes to check and a space for the parolee to initial. The Court noted that the checkboxes at issue here were “but two of 106 special conditions listed in the CDCR form that, if selected, either require or forbid certain conduct by a parolee. Such conditions, however, do not appear intended to set restrictions on the searches and seizures authorized by Penal Code section 3067, subdivision (b)(3), or to elevate a parolee’s expectations of privacy.”

The First District distinguished Riley v. California, (2014) 573 U.S. 373, in which the United States Supreme Court held that a law enforcement officer may not conduct a warrantless search of a person’s cell phone under the exception to the warrant requirement for searches incident to arrest, noting the “immense storage capacity” of cell phones, their ability to collect many distinct types of information in once place, and the pervasiveness of cell phone use in everyday life. (Id. at pp. 394–395.) The First District explained that Riley involved a different exception to the warrant requirement (search incident to arrest), as well as different governmental interests (preventing harm to officers and destruction of evidence) than those promoted by the parole search exception. (See Riley, supra, 573 U.S. at p. 386.)

Moreover, the First District found no court that had applied Riley’s holding to parole searches, and federal decisions had upheld warrantless searches of parolee cell phones. The Court noted that although the Ninth Circuit Court of Appeals had applied some of Riley’s reasoning in a probation search case (U.S. v. Lara (9th Cir. 2016) 815 F.3d 605), it declined to do so in a subsequent parole search case on the ground that the defendant’s “parole status alone” distinguished the case from Lara and Riley. (U.S. v. Johnson (9th Cir. 2017) 875 F.3d 1265.) However, given the discussion of privacy expectations raised by searches of cell phones raised in the “landmark decision in Riley,” the First District “assume[d], for the sake of argument, that where, as here, the scope of a parole search condition form lacks clarity with regard to cell phones, the parolee may have some reasonable expectation of privacy in his or her cell phone and its data.” The court proceeded to apply the totality of circumstances analysis weighing the degree of intrusion upon privacy interests against the degree to which the search promotes legitimate governmental interests.

The First District noted that the California Supreme Court emphasized that Penal Code section 3067(b)(3), provides that “every parolee is subject to warrantless and suspicionless parole searches,” and the reasonable scope of a parole search is not “strictly tied to the literal wording of the notification given to the parolee upon release.” (Schmitz, supra, 55 Cal.4th at p. 928.) The Court explained that because the reasonableness of a parole search is assessed based on the totality of circumstances, and not from a theory of consent, the officers who performed Delrio’s parole search were defendant were not required to first ascertain and parse the language of the CDCR form; they were only required to know of Delrio’s parole status in order to conduct a parole search. The CDCR form issue was just one circumstance to consider in the totality of circumstances.

Considering the government’s legitimate interests in evaluating the totality of circumstances, the Court of Appeal explained that California has an “overwhelming” interest in supervising parolees in order to detect possible parole violations, reduce recidivism, and promote reintegration of parolees into society. (Samson, supra, 547 U.S. at p. 853.) The government also “has a duty not only to assess the efficacy of its rehabilitative efforts but to protect the public, and the importance of the latter interest justifies the imposition of a warrantless search condition.” (Reyes, supra, 19 Cal.4th at p. 752.)

The First District explained that here, the officers knew Delrio was a parolee and they had specific, articulable reasons to suspect he was involved in a residential burglary and was therefore reoffending because the video surveillance evidence showed that the burglary involved Delrio’s truck and two individuals, one of whom bore a very close resemblance to Delrio. The Court explained that under these circumstances, the government had a particularly acute interest in determining whether Delrio had violated the conditions of his parole and was a danger to the public. Moreover, it was reasonable for the investigating officers to believe there might be evidence of the burglary on Delrio’s cell phone, such as text messages or calls with his accomplice, or photographs or location information regarding the targeted residence.

In evaluating the totality of the circumstances, the Court thus concluded that the government’s substantial interests in supervising Delrio and protecting the public outweighed any perceived expectation of privacy that Delrio may have had in his cell phone due to the lack of clarity in the written search conditions. The First District thus concluded that that the officers’ search here was not unreasonable, and accordingly affirmed.

B. Absent substantial and particularized justification to justify burden and intrusiveness imposed by electronic device search condition on probationer, search condition was unreasonable.

People v. Cota, 45 Cal. App. 5th 786 (4th Dist. 2020)

Facts: Police received a call that a violent mentally ill man in visibly soiled clothes was seen swinging a machete attached to a long stick in a San Diego public park. Upon arrival, police found Fernando L. Cota standing near a water fountain with the machete balanced on top of the fountain. Cota then sat down and pulled a six-inch drywall knife from his waistband, placing it next to him. The officers arrested Cota for an outstanding misdemeanor warrant after running a records check.

Cota pled guilty to the felony offense of carrying a concealed dirk or dagger in exchange for three years of probation and the anticipated reduction of his felony conviction to a misdemeanor at the end of one year once he completed drug treatment and mental health counseling.

The trial court accepted the recommendation and sentenced Cota to three years of probation with several conditions. Cota objected to, among other conditions, a condition compelling him to submit electronic devices for search at any time when required by a probation or law enforcement officer. The trial court imposed these conditions over Cota’s objections. Cota appealed the electronic device search condition, among others.

Held: The California Fourth District Court of Appeal explained that trial courts have wide latitude to impose conditions consistent with the goal of probation: rehabilitation of the defendant with minimal risk to the community. (Penal Code section 1202.7; People v. Carbajal (1995) 10 Cal.4th 1114, 1120.) However, the conditions must be reasonable. (Section 1203.1; see also People v. Beal (4th Dist. 1997) 60 Cal.App.4th 84, 86.) Cota argued the electronic device search condition was unreasonable because it was unrelated to future criminal conduct.

The Court explained that a condition of probation will be upheld as reasonable unless it meets all three criteria outlined in People v. Lent (1975) 15 Cal.3d 481: the condition (1) has no relationship to the crime of which the offender was convicted, (2) relates to conduct which is not in itself criminal, and (3) requires or forbids conduct which is not reasonably related to future criminality.

The Fourth District determined that the electronic device search condition satisfied the first two Lent criteria because there was no relationship between electronic devices and the crime Cota pled guilty to—possession of a concealed weapon; and because using electronic devices was not inherently criminal. What remained, for the electronic device search condition to survive the Court’s review for abuse of discretion, was to determine if the condition regulated conduct that was reasonably related to future criminality.

The Fourth District noted that the California Supreme Court’s recent decision in In re Ricardo P., (2019) 7 Cal.5th 1113, expressed that the reasonableness inquiry of Lent’s third prong “contemplates a degree of proportionality between the burden imposed by a probation condition and the legitimate interests served by the condition.” (Ricardo P., supra, 7 Cal.5th at p. 1122.) The Fourth District explained that when significant privacy interests were implicated by a probation condition (such as sweeping electronics searches without a warrant), the condition was unreasonable unless it was “proportional to achieving some legitimate end of probation.” (Id. at p. 1127.) Reasonableness required “more than just an abstract or hypothetical relationship between the probation condition and preventing future criminality.” (Id. at p. 1121.) In other words, the Fourth District explained, “to justify a burdensome condition, there must be a specific relationship—grounded in the facts of the case—between the condition and preventing future criminality.”

Here, the Court observed that under terms of his probation, Cota’s electronic devices could be searched at any time without a warrant, which implicated a significant privacy interest. As in Ricardo P., the trial court imposed the condition on a general assumption that drug users routinely negotiate drug purchases with their phones. The Court found no reference to Cota’s specific actions that would provide a rationale that would make the condition’s burden proportional to the significant privacy interest imposed by the condition. The Court explained that “[m]ere convenience in monitoring a parolee’s conduct, coupled with generic descriptions of how some people use cell phones, are not sufficient to render this burden on Cota’s privacy interests reasonable.”

The Fourth District concluded that there was no substantial and particularized justification in the record for the condition imposed upon Cota here. The Court found the electronic device search condition thus met all three Lent criteria and was therefore unreasonable.

The Fourth District struck the electronic device search condition. However, the Court considered that the factual record here might be incomplete. The Court therefore remanded to allow the trial court to craft a more narrowly tailored search condition proportionate to the burden on Cota’s privacy interest, based on additional facts that were not reflected in the record presented to the Court here.

C. Prohibiting people whom state court committed involuntarily to mental institution from bearing arms was a reasonable fit with government’s important interest in reducing gun violence.

Mai v. United States, 952 F.3d 1106 (9th Cir. 2020)

Facts: In October 1999, a Washington state court committed Plaintiff Duy Mai involuntarily for mental health treatment after he threatened himself and others. The state court determined that Plaintiff was both mentally ill and dangerous. Plaintiff’s commitment lasted more than nine months, ending in August 2000. Plaintiff was seventeen years old at the time of commitment, and his commitment spanned his eighteenth birthday. After his release, Plaintiff earned a bachelor’s degree and a master’s degree, became gainfully employed, and had two children. Plaintiff claimed in his complaint that he no longer suffered from mental illness, and he lived “a socially-responsible, well-balanced, and accomplished life.”

Although Washington state law prohibited Plaintiff from possessing a firearm, due to his involuntary commitment, he successfully petitioned a Washington state court for relief. That court found that Plaintiff had successfully managed the condition related to his commitment, no longer presented a substantial danger to himself, or the public; and the symptoms related to the commitment were not reasonably likely to recur. Accordingly, the state court conclude that the relevant state law no longer prohibited Plaintiff from possessing a firearm.

However, as a result of his involuntary commitment, federal law prohibits Plaintiff from possessing a firearm. Title 18 U.S.C. section 922(g)(4) bars individuals who have been “committed to a mental institution” from possessing firearms.[3] Involuntary commitments are consistent with due process only when the individual is found to be both mentally ill and dangerous. Foucha v. Louisiana, 504 U.S. 71, 80 (1992).

After he was denied the purchase of a firearm because of Section 922(g)(4), Plaintiff filed an action in 2017 alleging federal agencies violated his Second Amendment right to bear arms[4] by prohibiting him from possessing firearms.

The District Court granted the government’s motion to dismiss the complaint for failure to state a claim. The District Court held that Section 922(g)(4) was categorically constitutional under the Second Amendment and, alternatively, that Section 922(g)(4) satisfied intermediate scrutiny. Plaintiff then sought leave to amend the complaint, which the District Court denied as futile. Plaintiff appealed.

Held: The Ninth Circuit Court of Appeals considered whether, as Plaintiff argued, the Second Amendment required that Plaintiff be allowed to possess firearms regardless of his earlier involuntary commitment. The Court explained that the “Second Amendment protects the right to keep and bear arms for the purpose of self-defense.” McDonald v. City of Chicago, 561 U.S. 742, 749-50 (2010). However, the Supreme Court’s recognition of the Second Amendment right did not “cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill….” District of Columbia v. Heller, 554 U.S. 570, 626-27 (2008); those prohibitions are “presumptively lawful.” Heller, 554 U.S. at 627 n.26.

The Ninth Circuit explained that, applying the lessons from Heller and McDonald, the Ninth Circuit had adopted a two-step inquiry for assessing whether a law violates the Second Amendment. United States v. Torres, 911 F.3d 1253, 1258 (9th Cir. 2019). “This test ‘(1) asks whether the challenged law burdens conduct protected by the Second Amendment and (2) if so, directs courts to apply an appropriate level of scrutiny.’“ Id. (quoting United States v. Chovan, 735 F.3d 1127, 1136 (9th Cir. 2013)). The Court first assumed, without deciding, that Section 922(g)(4) burdened Second Amendment rights.

The Court next determined the appropriate level of scrutiny to apply, which depends “on (1) how close the law comes to the core of the Second Amendment right and (2) the severity of the law’s burden on the right.” Id., at 1138 (internal quotation marks omitted). The Court explained that “there has been near unanimity in the post-Heller case law that, when considering regulations that fall within the scope of the Second Amendment, intermediate scrutiny is appropriate.” Torres, 911 F.3d at 1262 (internal quotation marks omitted). The Court found that Section 922(g)(4) burdened, not the public at large, but only a narrow class of individuals who are not at the core of the Second Amendment—those previously involuntarily committed.[5] The Court therefore held that, having assumed (without deciding) that Section 922(g)(4)’s prohibition burdened Second Amendment rights, intermediate scrutiny applied. The Ninth Circuit then applied intermediate scrutiny to Section 922(g)(4).

The Court explained that to satisfy intermediate scrutiny, the government’s statutory objective must be “significant, substantial, or important,” and there must be a “reasonable fit” between the challenged law and that objective. Silvester v. Harris, 843 F.3d 816, 821-22 (9th Cir. 2016) (internal quotation marks omitted).

The Ninth Circuit concluded that the government’s “unquestionably important” interest in preventing suicide[6] and “[t]he legitimate and compelling state interest in protecting the community from crime[7] supported Section 922(g)(4)’s ban on the possession of firearms by those who were involuntarily committed to a mental institution. The Ninth Circuit agreed with the Sixth Circuit that the two interests “are not only legitimate, they are compelling.”[8]

The Ninth Circuit noted that “Congress’ intent in enacting [Section] 922(g) and [related laws] was to keep firearms out of the hands of presumptively risky people.”[9] The Court explained: “Accordingly, although Section 922(g)(4)’s prohibition takes effect as a result of a past event, the statute ‘target[s] a present danger, i.e., the danger posed by [those who previously have been involuntarily committed to a mental institution] who bear arms.’ Vartelas v. Holder, 566 U.S. 257, 271 [](2012) (emphasis added).”

Moreover, the Court found that scientific evidence supported the congressional judgment that those who have been committed involuntarily to a mental institution still pose an increased risk of violence even many years after their release from commitment. The Court observed that some studies reported a suicide risk 39 times than that expected for those involuntarily committed, and other studies confirmed that suicide risk remained extremely high for those with a history of mental illness, even when studies continued beyond a decade after treatment.

The Court determined that Section 922(g)(4) was a reasonable fit for the government’s important interests. The Court found that Congress reasonably concluded that restricting firearms from persons with an increased risk of violence advanced the goal of reducing gun violence. The Court also explained that Section 922(g)(4) was more narrowly tailored than other lifetime prohibitions that the Court had previously upheld, such as Section 922(g)(1)’s prohibition as to felons, both violent and non-violent.

The Court therefore concluded that Section 922(g)(4)’s continued application to plaintiff did not violate the Second Amendment. The Court accordingly affirmed the District Court’s dismissal of the action.

D. Defendant’s motion to suppress blood test results properly denied because defendant voluntarily consented to test after receiving admonitions and did not object or resist.

People v. Lopez, 46 Cal. App. 5th 317 (3rd Dist. 2020)

Facts: In September 2013, Rocklin police detained Sharon Darlene Lopez after observing her driving. Officer Evan Adams, who took over the investigation for the detaining officer, observed Lopez’s unsteady gait, constricted pupils, and slurred speech. He conducted field sobriety tests that indicated she was impaired, but a preliminary alcohol screening device indicated an absence of alcohol. The officer believed she was under the influence of controlled substances, rather than alcohol. He arrested her and transported her to the county jail.

According to the officer’s trial testimony, he informed Lopez that because she was under arrest for a DUI, and the officer believed it was a controlled substance DUI, she was required by law to submit to a blood test. However, the officer did not inform Lopez that she had a right to refuse the blood test.

The officer said that Lopez did not object or refuse at any point to the blood test, including after the phlebotomist arrived to take the blood, and that the blood was taken with Lopez’s cooperation. Although the officer acknowledged he never explicitly asked for Lopez’s consent to the blood draw, the officer took her lack of refusal or resistance at any point as giving consent to the draw. The officer expressed that if Lopez had refused, he would have obtained a warrant and performed a forced blood draw. Asked what other signs he would look for to determine whether the suspect consented if the suspect did not say, “I give consent.” the officer replied that he would “look for someone in any way” to indicate they didn’t want to do the blood draw, and that he would take such indication as a refusal, requiring him to obtain a warrant.

The People charged Lopez with one misdemeanor count of driving under the influence of a controlled substance. Lopez moved to suppress evidence pursuant to Penal Code section 1538.5, arguing that her blood sample, among other matters, was drawn without her consent or a warrant in violation of the Fourth Amendment. She testified that she did object and that she was physically forced to give the blood sample.

The trial court denied the suppression motion, finding the officer’s testimony to be more credible and concluding Lopez consented to the blood draw. Lopez appealed to the court’s appellate division. The appellate division affirmed the trial court’s order denying suppression and denied Lopez’s request to have the matter transferred to the California Third District Court of Appeal. However, the Third District granted Lopez’s petition for transfer. The superior court stayed proceedings pending the Third District’s resolution of the appeal.

Held: The Third District Court of Appeal explained that the Fourth Amendment protects the “right of the people to be secure in their persons … against unreasonable searches” and provides that “no warrants shall issue, but upon probable cause.” A blood draw is a search of the person. (Birchfield v. North Dakota (2016) 579 U.S. ___ [195 L.Ed.2d 560, 136 S. Ct. 2160].) However, a consensual search does not violate the Fourth Amendment “because it is no doubt reasonable for the police to conduct a search once they have been permitted to do so.” (Florida v. Jimeno (1991) 500 U.S. 248, 250–251.)

At the time of Lopez’s arrest, the implied consent law stated that Lopez, by driving a motor vehicle, was deemed to have given her consent to chemical testing of her breath or blood if she was lawfully arrested for driving under the influence. The Court explained that the implied consent law required Officer Adams to inform Lopez that her refusal to submit to testing would result in a fine, suspension of her driver’s license, and, if she was convicted of DUI, mandatory imprisonment. The law also required Officer Adams to inform Lopez that a refusal to submit to the test could be used against her in a court of law, and that she was not entitled to have an attorney present when she decided whether to take the test or during the test. Officer Adams did not make these admonitions.

The Court explained that voluntary consent to a blood test required under the implied consent law satisfies the Fourth Amendment. (People v. Harris (4th Dist. 2015) 234 Cal.App.4th 671, 685.) The Court explained that “‘rather than determine whether “implied consent” to a chemical test satisfies the Fourth Amendment, we must determine whether submission to a chemical test, after advisement [or lack of advisement] under the implied consent law, is freely and voluntarily given and constitutes actual consent.’ (Harris, supra, 234 Cal.App.4th at p. 686).”

The Court noted that “consent need not be express. It may be implied from the suspect’s actions. ‘[N]o words at all need be spoken: in appropriate circumstances, consent to enter may be unmistakably manifested by a gesture alone.’” (People v. James (1977) 19 Cal.3d 99, 113.) The Court noted that Officer Adams correctly instructed Lopez that she was required to undergo a blood test; that Lopez did not object or refuse to undergo the test; that she did not resist any of the officers’ directions or actions; and that she voluntarily placed her arm on the table to allow the phlebotomist to draw her blood. The Court noted that the officer testified he obtained consent and that had a suspect not done so, he would seek a warrant. The trial court considered Officer Adams’s omissions of the implied consent law’s admonitions, and it found Lopez nonetheless voluntarily consented to the blood draw.

The Third District concluded that these facts, “seen in light of the implied consent law and the regulatory scheme to prevent drunk driving, are substantial evidence supporting the trial court’s determination that, under the totality of the circumstances, Lopez consented to her blood test.” Accordingly, the Third District affirmed the trial court’s order denying Lopez’s motion to suppress.

E. 42 U.S.C. section 1983 action requires plausible facts showing sufficient indicia of officer’s display of state authority to conclude they acted in official capacity; also plaintiff did not plausibly allege that County’s inaction reflected deliberate indifference to her Fourteenth Amendment right to bodily integrity.

Hyun Ju Park v. City & Cnty. of Honolulu, 952 F.3d 1136 (9th Cir. 2020)

Facts: While Hyun Ju Park was working as a bartender at a Honolulu sports bar late one night, three off-duty police officers employed by the Honolulu Police Department stopped at the bar for drinks. After consuming seven beers over the course of two hours, one of the officers, Anson Kimura, decided to inspect his firearm, which the department had authorized him to carry. The other two officers watched as their intoxicated colleague attempted to load his already-loaded firearm. Kimura’s firearm accidentally discharged, and a bullet struck Park. She suffered serious, life-threatening injuries as a result.

Park filed an action pursuant to 42 U.S.C. section 1983 against the three officers and the City and County of Honolulu alleging that defendants violated plaintiff’s substantive due process right to bodily integrity under the Fourteenth Amendment. Park alleged that the Kimura’s reckless handling of his firearm exhibited deliberate indifference to her personal safety, and that two other off-duty police officers were liable for failing to intervene to stop the dangerous conduct. Park also alleged that Police Department policies or customs caused her injuries. She settled her claims against Kimura, and the District Court granted the remaining defendants’ motion to dismiss. Park appealed.

Held: The Ninth Circuit Court of Appeals first addressed Park’s Section 1983 claim against the two off-duty officers. The Court explained that to state a Section 1983 claim, Park had to allege that she suffered the deprivation of a federally protected right and that “the alleged deprivation was committed by a person acting under color of state law.” West v. Atkins, 487 U.S. 42, 48 (1988). The Ninth Circuit explained that it had a three-part test for determining when a police officer, although not on duty, had acted under color of state law. The officer must have: (1) acted or pretended to act in the performance of his official duties; (2) invoked his status as a law enforcement officer with the purpose and effect of influencing the behavior of others; and (3) engaged in conduct that “related in some meaningful way either to the officer’s governmental status or to the performance of his duties.” Anderson v. Warner, 451 F.3d 1063, 1068-69 (9th Cir. 2006) (internal quotation marks omitted).

The Court noted that both officers were off-duty and dressed in plain clothes, drinking and socializing at the bar in their capacity as private citizens. Moreover, they never identified themselves as officers, displayed their badges, or specifically associated their actions with their law enforcement duties. The Court thus held that because the two off-duty officers did not act or purport to act in the performance of their official duties, they were not acting under color of state law. The Court therefore affirmed the District Court’s dismissal of Park’s claims against the two officers.

The Ninth Circuit next addressed Park’s Section 1983 claim against the County, brought pursuant to Monell v. New York City Department of Social Services, 436 U.S. 658 (1978). Park asserted that the County was liable because the Chief of Police failed to amend a Honolulu Police Department policy to prohibit officers from carrying firearms whenever they consumed alcohol in any amount.

The Ninth Circuit explained that a municipality may be held liable as a “person” under Section 1983 when it maintains a policy or custom that causes the deprivation of a plaintiff’s federally protected rights. Monell, 436 U.S. at 694. To state such a claim, a plaintiff must allege either that (1) “a particular municipal action itself violates federal law, or directs an employee to do so”; or (2) the municipality, through inaction, failed to implement adequate policies or procedures to safeguard its community members’ federally protected rights. Board of Commissioners of Bryan County v. Brown, 520 U.S. 397, 404, 407-08 (1997); see also Tsao v. Desert Palace, Inc., 698 F.3d 1128, 1143 (9th Cir. 2012).

The Ninth Circuit explained that when, as Park did here, a plaintiff pursues liability based on a failure to act, the plaintiff must allege that the municipality demonstrated deliberate indifference to the violation of her federally protected rights. Tsao, 698 F.3d at 1143. The Court explained that deliberate indifference was a stringent standard of fault, requiring proof that a municipal actor disregarded a known or obvious consequence of his action. The standard may be met if the policy is obviously, facially deficient; or if not, a plaintiff must ordinarily point to a pattern of prior, similar violations of federally protected rights, of which the relevant policymakers had actual or constructive notice.

The Court determined Park had not plausibly alleged that the Chief of Police had actual or constructive notice that his inaction would likely result in the deprivation of her federally protected rights. The Court noted that Park did not plausibly allege that the Chief of Police was aware of prior incidents in which the off-duty officers mishandled their firearms while drinking before the incident here occurred. The Court also rejected Park’s assertion that the Chief of Police failed to implement mandatory whistleblowing policies, which would have rooted out a culture of silence; Park provided no details on such alleged matters. The Court concluded that plaintiff had not plausibly alleged that the Chief of Police had actual or constructive notice that his inaction would likely result in the deprivation of plaintiff’s federally protected rights. The Court thus found the Park had not met the stringent standard for her claim against the County for deliberate indifference to her Fourteenth Amendment right to bodily integrity. The Ninth Circuit accordingly affirmed the District Court’s dismissal of Park’s Section 1983 claim against the County.

Concurring in part and dissenting in part, a judge joined the majority opinion as applied to the two off-duty officers and agreed that the Section 1983 claims against them should be dismissed for failure to plausibly allege that they were acting under color of law. However, this judge disagreed with the majority’s analysis of Park’s Monell claim against the County. The judge noted that Kimura’s repeated engagement in drunken and dangerous weapons handling occurred in the presence of other HPD officers, and that this put the County on at least constructive notice of the substantial risk of harm. The judge maintained that Park should be given leave to amend to potentially allege additional facts that “would have made out a more compelling case for constructive or actual notice.”

F. While unoccupied running car warranted investigation, it did not reasonably suggest crime or emergency was in progress to justify officers’ warrantless search.

People v. Smith, 2020 Cal. App. LEXIS 204 (4th Dist. Mar. 12, 2020)

Facts: In December 2014, a Palm Springs Police Department police officer and his partner were dispatched to a home following a call from a concerned citizen who reported that an unoccupied running car had been in the driveway of a residence for about 30 minutes. After the officer and his partner arrived, they observed that the unoccupied car was running, the windows were up and foggy, the lights were on, and determined that a car rental company owned the vehicle.

The officer became concerned that a person inside the home might be in distress or that criminal activity was afoot. The officer heard no noise inside the house. The officer rang the doorbell several times, and the officer or his partner also knocked on the door. The officers waited about 30 to 60 seconds for someone to answer the door, but received no response.

Moving around the exterior of the home, the officer noticed a second door about 10 feet away from the front door, which the officer described as “an interior-type door.” The officer did not know that the door led to a casita[10] that lacked access to the front door. The officer moved the handle without knocking. Finding the door unlocked, the officer opened the door and announced “police.” As the door opened, the officer saw an individual, who he knew to be a felon and not a resident of this home, lying on the floor looking back at him. This caused the officer to believe that crime was afoot. During trial, the officer testified that after stepping into the room he saw Skyler Damon Smith, another individual who he knew had a felony conviction, drug paraphernalia and what appeared to be methamphetamine in plain view.

The Riverside County District Attorney filed an information charging Smith with several drug possession and firearm counts. The trial court denied Smith’s suppression motion relating to the search of his casita. A jury found Smith guilty and the trial court sentenced Smith to 10 years eight months in prison. Smith appealed the denial of his suppression motions. The California Fourth District Court of Appeal affirmed, but the California Supreme Court granted review and transferred the matter back to the Court of Appeal for reconsideration.

Held: The Fourth District Court of Appeal first explained that the Fourth Amendment to the United States Constitution prohibits the government from conducting unreasonable searches and seizures of private property. (U.S. Const., 4th amend.; Arizona v. Gant (2009) 556 U.S. 332, 338; People v. Macabeo (2016) 1 Cal.5th 1206, 1213.) Warrantless searches “are per se unreasonable under the Fourth Amendment—subject only to a few specifically established and well-delineated exceptions.” (Katz v. United States (1967) 389 U.S. 347, 357, fns. omitted.)

The Court of Appeal observed that under the emergency aid exception, “police may enter a home without a warrant when they have an objectively reasonable basis for believing that an occupant is seriously injured or imminently threatened with such injury.” (Brigham City v. Stuart (2006) 547 U.S. 398, 400; People v. Troyer (2011) 51 Cal.4th 599, 606.) Moreover, “the exigent circumstances exception applies to situations requiring prompt police action. These situations may arise when officers are responding to or investigating criminal activity.” (People v. Ovieda (2019) 7 Cal.5th 1034, 1042.)

The Court considered the question of whether exigent circumstances justified the officer’s warrantless search. The Court explained that exigent circumstances are defined as “‘“‘an emergency situation requiring swift action to prevent imminent danger to life or serious damage to property, or to forestall the imminent escape of a suspect or destruction of evidence.’”‘” (Id. at p. 1041.) Exigent circumstances include situations where “an entry or search appears reasonably necessary to render emergency aid, whether or not a crime might be involved.” (Id. at pp. 1041–1042.)

The Court explained that the emergency aid exception “‘require[s] that articulable facts support a reasonable belief that an emergency exists.’ [(Id. at p. 1048.)] It is not enough that officers seek to rule out ‘the possibility that someone … might require aid.’ (Id. at p. 1047.)” “‘[T]he test … [is] whether there was “an objectively reasonable basis for believing” that medical assistance was needed, or persons were in danger … .’” (Michigan v. Fisher (2009) 558 U.S. 45, 49.)

Here, the Court found no evidence supported a conclusion that anything was amiss inside the residence. The officers observed an unoccupied running vehicle in a residential driveway at night and what appeared to be an unoccupied dark residence with the porch light on and front door locked. No one responded to the doorbell or knocks at the door and the officer could not see or hear anything inside the house. The Court observed that the officer articulated no facts reasonably suggesting that someone inside the residence might be having a medical emergency. The Court concluded that the facts known to the officer were insufficient to provide him with “‘an objectively reasonable basis for believing’ that medical assistance was needed, or persons were in danger” such that a warrantless search of the residence was justified by the emergency aid exception. Thus, the emergency aid exception did not apply.

With regard to the exigent circumstances exception, the Fourth District observed that “[a] burglary in progress may constitute an ‘exigent circumstance,’ as that phrase is used in Fourth Amendment jurisprudence.” (People v. Lujano (2014) 229 Cal.App.4th 175, 183.) Here, the Court found that while the unoccupied running car warranted investigation, it did not reasonably suggest a burglary in progress and justify a warrantless search. The Court noted that the neighbor who reported the running car in the driveway did not see anyone fleeing the residence, or state that the neighborhood had a burglary problem. The lit porch light, locked front door, and dark interior suggested that the home was occupied, but that the occupants were not home. Moreover, an overview of the residence’s exterior did not reveal any open doors or windows, flashlight beams in the home, or anything wrong. The Count concluded that no articulable facts existed to create a nexus between any suspected criminal activities and the residence. (See People v. Hernandez (2nd Dist. 1994) 30 Cal.App.4th 919.)

The Court thus concluded that, like the emergency aid exception, the exigent circumstances exception did not justify the warrantless entry. Accordingly, the Fourth District Court of Appeal reversed on these matters, and remanded with directions that the trial court resentence Smith.

EMPLOYMENT

Civil FEHA actions require exhaustion of administrative remedies even where defendant had actual notice of complaint and opportunity to participate in administrative processes.

Alexander v. Cmty. Hosp. of Long Beach, 46 Cal. App. 5th 238 (2nd Dist. 2020)

Facts: Judy Alexander, Johann Hellmannsberger, and Lisa Harris worked as nurses in the behavioral health unit of Community Hospital of Long Beach (“hospital”). All received good reviews. In 1989, two corporations were founded to take over the operations of the hospital’s psychiatric unit. The first corporation, Memorial Psychiatric Health Services (“MPHS”), was founded to run the hospital’s locked mental health ward. The hospital contracted with MPHS to operate its behavioral health unit. MPHS provided administrative services for the unit and employed and managed its director, Keith Kohl. Kohl’s direct supervisor was MPHS’s vice-president of operations.

The second corporation founded in 1989, the Memorial Counseling Associates Medical Group (“MCA”), supplied physicians for patients in the ward. The hospital separately contracted with MCA to provide physicians for the behavioral health unit. Personnel issues involving employees other than Kohl or the physicians were managed by Valerie Martin, the hospital’s human resources director.

Kohl discriminated in favor of male staff—particularly gay men—with respect to scheduling, assignments and promotions; rewarded male employees with gift certificates based on their attire; and regularly used sexually explicit language that favored homosexuality and denigrated heterosexuality. Alexander complained informally several times about Kohl, including once to Martin. Alexander’s complaint to Martin was a few weeks prior to an April 2009 patient incident that involved Alexander, Hellmannsberger, and Harris.

Five days after the incident with the patient, Kohl, Martin, and Tammy Alvarez, the hospital’s chief nursing officer, terminated Alexander ostensibly for abusing the patient by placing the patient in physical restraints without a physician’s order. Kohl, Martin, Alvarez, and Anthony Pace (the Behavioral Health Unit’s clinical coordinator) offered to let Hellmannsberger keep his job if he would corroborate that Alexander had put the patient in restraints. Martin, Alvarez, and Kohl proposed the same to Harris. Hellmannsberger and Harris each refused, and were fired.

The hospital told licensing authorities about the patient incident. Although the nurses found new jobs soon after their termination, they lost the new jobs a year later when the State of California filed criminal charges against them for patient abuse for the patient incident. The nurses were acquitted of the charges.

Alexander, Hellmannsberger and Harris filed administrative complaints with the Department of Fair Employment and Housing (“DFEH”) against the hospital,[11] Kohl, and Pace. The nurses alleged gender and sexual orientation discrimination, and retaliation in violation of the California Fair Employment and Housing Act (Government Code section 12900 et seq.; “FEHA”). The nurses later added MCA as an additional potential defendant in their subsequent complaint. The nurses amended their civil complaint to name MPHS as a Doe defendant. However, the nurses never filed any administrative complaint against MPHS. A jury found that the hospital and MPHS created a hostile work environment and wrongfully discharged the three nurses based on their opposition to Kohl’s harassment, using a pretext of patient abuse. The jury awarded the nurses past and future economic and noneconomic damages, and the trial court entered judgment accordingly. MPHS appealed after the trial court denied MPHS’s motion for judgment notwithstanding the verdict.

Held: The California Second District Court of Appeal held that the nurse plaintiffs failed to exhaust their administrative remedies, in that they failed to mention MPHS in their administrative complaints. Thus, MPHS could not be held liable for the plaintiffs’ FEHA claims

The Court observed that FEHA makes it an unlawful employment practice for an employer to harass or discriminate against an employee based on the employee’s sexual orientation, to fail reasonably to investigate a complaint of harassment or discrimination, or to retaliate against an employee for making such a complaint. (Government Code section 12940(a), (h), (j) & (k).)

The Court explained that “[a]ny person claiming to be aggrieved by an alleged unlawful practice may file with the [DFEH] a verified complaint, in writing, that shall state the name and address of the … employer … alleged to have committed the unlawful practice complained of, and that shall set forth the particulars thereof and contain other information as may be required by the department.” (Government Code section 12960(c), italics added.) The aggrieved person must exhaust this administrative remedy before bringing a civil FEHA action.[12]

The Court noted that “to bring a civil lawsuit under the FEHA, the defendants must have been named in the caption or body of the DFEH charge.”[13] Here, the plaintiffs did not mention MPHS in their FEHA complaint. The Court concluded that this constituted a failure to exhaust their administrative remedies against MPHS and precluded the plaintiffs from bringing a civil FEHA action against MPHS.[14] The Court found FEHA’s mandatory statutory language where an unnamed defendant receives actual notice of a FEHA complaint precluded the nurse plaintiffs’ argument for an exception to the rule. The Court accordingly reversed the judgment against MPHS and ordered a new judgment be entered in its favor.

MARIJUANA

A material change in circumstances may permit a new moratorium on marijuana dispensaries following challenge under Elections Code section 9145.

Cnty. of Kern v. Alta Sierra Holistic Exch. Serv., 46 Cal. App. 5th 82 (5th Dist. 2020)

Facts: In 2009, the Board of Supervisors (“Board”) of the County of Kern (“County”) adopted an ordinance allowing medical marijuana dispensaries in commercially zoned areas, treating them similar to pharmacies. In 2011, the County adopted a new ordinance, effectively banning medical marijuana dispensaries in the County and declaring them a public nuisance. The following month, a valid protest petition was received by the Board protesting the recently enacted dispensary ban ordinance. Elections Code section 9145 provides that when a county board of supervisors receives a valid referendum petition protesting the adoption of an ordinance, the board must either “entirely repeal the ordinance” or submit it to the voters.

In response to the valid petition, the Board in February 2012 adopted a repeal ordinance, which not only repealed the protested 2011 ban ordinance, but also effectively repealed the 2009 ordinance allowing medical marijuana dispensaries in commercially zoned areas.

In April 2016, the Fifth District interpreted “the phrase ‘entirely repeal the ordinance’ [in Elections Code section 9145] to mean that a [board] must (1) revoke the protested ordinance in all its parts and (2) not take additional action that has the practical effect of implementing the essential feature of the protested ordinance.” (County of Kern v. T.C.E.F., Inc. (2016) 246 Cal.App.4th 301, 308 (“T.C.E.F.”).) The Fifth District in that case held the repeal of the 2009 ordinance to be invalid and concluded that the repeal of the 2009 ordinance was, in practical effect, a reenactment of the ban on dispensaries contained in the 2011 protested ordinance. (Id. at pp. 308, 326.) Accordingly, the Board’s repeal of the 2009 ordinance violated Section 9145 and, as a result, the Fifth District in T.C.E.F. concluded the 2009 ordinance remained in effect. (T.C.E.F., at p. 308.)

Before the Fifth District’s T.C.E.F. decision became final, the County in May 2016 adopted an ordinance that placed a moratorium on the establishment of new medical marijuana dispensaries. The ordinance was adopted as an urgency measure and the Board’s findings constituting its declaration of urgency were set forth in the Kern County Ordinance Code (“KCOC”). The day before the County’s adoption of this ordinance, Alta Sierra Holistic Exchange Service and their incorporator (collectively, “defendants”) obtained a seller’s permit. The defendants began operating a medical marijuana dispensary sometime after the County adopted the urgency measure ordinance.

In October 2016, the County filed a nuisance abatement action against defendants. County alleged that sometime after the County adopted the May 2016 moratorium ordinance, the defendants began operating a marijuana dispensary, thereby violating the moratorium. The trial court concluded that the defendants’ marijuana dispensary was a public nuisance. The defendants were prohibited from operating a marijuana dispensary on the property and from leasing or otherwise permitting a dispensary to occupy the property. The defendants appealed.

Held: The California Fifth District Court of Appeal had already determined in T.C.E.F. that the 2012 repeal ordinance wrongly effected the repeal of the 2009 ordinance by effectively “implementing the essential feature of the protested ordinance.” (T.C.E.F., at p. 308.) The Fifth District here observed that the defendants’ appeal raised the legal question of how long a board of supervisors must wait under Elections Code section 9145 before reenacting the essential feature of the protested ordinance. Noting that the constitutional provisions addressing the referendum power, the text of Section 9145, and published judicial decisions did not provide a direct answer for referenda at the county level, the Court considered the matter. The Court resolved the question by interpreting Section 9145 to mean a board of supervisors could reenact the essential feature of the repealed ordinance after there had been a material change in circumstances. The Court explained that a change in circumstances was material if an objectively reasonable person would consider the new circumstances significant or important in making a decision about the subject matter of the ordinance.

The Court determined the relevant period to evaluate whether a material change had occurred to be between the February 2012 when the repeal ordinance was adopted and May 2016, when the urgency measure ordinance imposing a moratorium on new dispensaries was adopted. The Court noted several developments that indicated a material change in circumstances during that period.

In November 2016, California voters passed Proposition 64 which legalized adult, recreational use of marijuana and reduced the criminal penalties for various offenses involving marijuana, including its cultivation and possession for sale. After the passage of Proposition 64, the Governor signed into law the Medicinal and Adult-Use Cannabis Regulation and Safety Act[15] (“MAUCRSA”). MAUCRSA created one regulatory system for both medicinal and adult-use (i.e., recreational) cannabis, and became effective on June 27, 2017. The new act explicitly authorized local jurisdictions “to completely prohibit the establishment or operation of one or more types of businesses licensed under [MAUCRSA] within the local jurisdiction.”[16] MAUCRSA provides that no application for a state license shall be approved if that approval “will violate the provisions of any local ordinance or regulation adopted in accordance with Section 26200.”[17] The Court also noted that the Board in May 2016 had new information that it did not have in February 2012, including the occurrence of criminal activity at or near the dispensary, traffic safety, underage use of marijuana, and hospitalization related to marijuana use.

The Court thus concluded that the totality of the changes constituted a material change relevant to County’s regulation of marijuana dispensaries. The Court stated that legalization of recreational use of marijuana greatly increased the potential demand and, thus, the number of dispensaries that might open if authorized. In turn, the Board could reasonably infer a larger number of dispensaries would increase the volume of criminal activity, traffic incidents and hospitalizations involving marijuana.

The Fifth District thus concluded that material changes occurred before the Board enacted the May 2016 ordinance. The Court found that the Board did not violate Section 9145 when it enacted the May 2016 moratorium on new dispensaries or subsequently banned dispensaries. Accordingly, the ordinance banning dispensaries was enforceable.

MISCELLANEOUS

A. Felony conviction for misuse of personal identifying information under Penal Code section 530.5(a) may not be reduced to misdemeanor shoplifting under Proposition 47.

People v. Jimenez, 9 Cal. 5th 53 (2020)

Facts: In June 2016, defendant Miguel Angel Jimenez entered Loans Plus, a commercial check-cashing store in Oxnard, on two occasions to cash a check from OuterWall, Inc., made payable to himself. The first check was made out for $632.47, and the second, $596.60. Each contained OuterWall’s personal identifying information in the form of an account number. On both occasions, Loans Plus was open for business. And on both occasions, OuterWall had not issued the checks in Jimenez’s name, nor did Jimenez have permission to possess, issue, or use the checks.

The People charged Jimenez with two felony counts of misusing personal identifying information in violation of Penal Code section 530.5(a), which prohibits “willfully obtain[ing] personal identifying information” of another person “and us[ing] that information for any unlawful purpose, including to obtain, or attempt to obtain, credit, goods, services, real property, or medical information without the consent of that person.” (Section 530.5(a).) The jury instructions declared the unlawful purpose for which Jimenez used OuterWall’s account information: “unlawfully obtaining or attempting to obtain money in the form of cash in exchange for a presented check without the consent of the other person.” The jury convicted Jimenez of both counts.

Jimenez moved to reclassify his felony convictions to misdemeanors under Proposition 47: The Safe Neighborhoods and Schools Act. Approved by California voters in November 2014, Proposition 47 was intended to decrease the number of people in prison for nonviolent crimes, and reclassified certain drug- and theft-related offenses from felonies or “wobblers” to misdemeanors to achieve this purpose. One change made by Proposition 47 was to add Section 459.5 to the Penal Code, thereby establishing a new misdemeanor shoplifting offense. Section 459.5 prohibits entering a commercial establishment “with intent to commit larceny” while the establishment is open during business hours, and where the value of the property taken or intended to be taken is $950 or less. (Section 459.5(a).) The section also dictates that any “act of shoplifting … shall be charged as shoplifting,” and that “[n]o person who is charged with shoplifting may also be charged with burglary or theft of the same property.” (Section 459.5(b).) This prohibition applies only to “burglary or theft” offenses. (Ibid.)

Jimenez relied on the Supreme Court’s recent decision in People v. Gonzales (2017) 2 Cal.5th 858 to support his bid for reclassification, in which the Court held that the shoplifting statute applied to an entry with intent to commit nonlarcenous theft. Like Jimenez, the defendant in Gonzales had entered a commercial establishment and cashed two checks containing another person’s bank account information. Because Jimenez committed essentially the same conduct as Gonzales, Jimenez argued his conduct, too, constituted misdemeanor shoplifting under Section 459.5(a). The trial court granted Jimenez’s motion, and the People appealed. The Court of Appeal affirmed, relying on the similarity of Jimenez’s conduct and that of the Gonzales defendant. The District Attorney filed a petition for review.

Held: The Supreme Court of California granted review to determine whether a felony conviction for misuse of personal identifying information can be reduced to misdemeanor shoplifting under Proposition 47. The Court concluded that Section 459.5, the misdemeanor shoplifting provision, did not encompass misuse of identifying information. The Court held that the preclusive language of Section 459.5(b)—that “[a]ny act of shoplifting as defined in subdivision (a) shall be charged as shoplifting,” and “[n]o person who is charged with shoplifting may also be charged with theft or burglary of the same property”—applied only as to theft or burglary offenses. Section 530.5(a), the section for which Jimenez was convicted of a felony, did not define such an offense.

The Court explained that a conviction under Penal Code section 530.5(a) required proof “(1) that the person willfully obtain[ed] personal identifying information belonging to someone else; (2) that the person use[d] that information for any unlawful purpose; and (3) that the person who use[d] the personal identifying information d[id] so without the consent of the person whose personal identifying information [was] being used.”[18]

The Court noted that Section 530.5 makes no mention of theft in its text, nor contained any requirement, “central to the crime of theft[,] that the information be stolen at all,”[19] or that the victim’s information was taken with “the intent to permanently deprive the owner of its possession.”[20] The Court observed that, by its very terms, Section 530.5(a)’s offense of misuse of personal identifying information could be accomplished by acquiring the information with valid consent, using it for an unlawful purpose, and returning it.

The structure and history of Section 530.5, the Supreme Court stated, reinforced this understanding that “[t]he gravamen of the … offense is the unlawful use of a victim’s identity.”[21] The Court noted that the Legislature enacted Section 530.5 in 1997 as part of many changes to California’s Consumer Credit Reporting Agencies Act, and that before Section 530.5 took effect, law enforcement agencies generally considered the defrauded business entity to be the victim, not the person whose identity was stolen so that the fraud could be committed. The Court also observed that Section 530.5 resided in the chapter of the Penal Code titled “False Personation and Cheats,” rather than the chapter titled “Larceny.” Thus, the Court concluded from the language, structure, and history of the section that Section 530.5 was not a theft offense, but a unique crime.

The Supreme Court explained that Jimenez centered his argument on the similarity between his conduct and that of the defendant in Gonzales. However, the Court found that this argument presumed a defendant’s conduct, not his crime of conviction, was what Proposition 47 sought to reclassify. Section 459.5(b) provides that “[n]o person who is charged with shoplifting may also be charged with burglary or theft of the same property.” The Court explained that the trigger for the bar in Section 459.5(b) was not only whether a defendant’s course of conduct included an act of shoplifting (see subdivision (a) of the section), but also whether the charged crime is burglary or theft of the same property. The Court clarified that conduct did impact whether a defendant “may … be charged with burglary or theft of the same property,” but not on whether Section 530.5 created a “theft” offense. (Section 459.5 (b).) That Jimenez committed shoplifting in the course of identity theft, the Court explained, did not alter the fact that he committed identity theft.

Thus, the Supreme Court of California found that Section 530.5 criminalized the willful use of someone’s personal identifying information for an unlawful purpose, not an unlawful taking. It was not a theft offense because criminal liability pivoted on how the information was used rather than how it was acquired. Because Section 459.5(b) did not encompass misuse of identifying information, the Court determined that Jimenez’s conviction for misuse of identifying information was not subject to reclassification as misdemeanor shoplifting, and that the Court of Appeal erred in holding otherwise. The Supreme Court accordingly reversed and remanded to the Court of Appeal with instructions to send the case back to the trial court for sentencing.

B. Social media providers may defend against criminal subpoenas by either establishing an unjustified burden to produce or that the information is available by other means.

Facebook, Inc. v. Superior Court, 46 Cal. App. 5th 109 (1st Dist. 2020)

Facts: The federal Stored Communications Act (the “Act”; 18 U.S.C. section 2701 et seq.) prohibits electronic communication service providers from “knowingly divulg[ing]” the contents of a user communication. (Section 2702(a)(1)–(2), (b)–(c).) Disclosure is authorized if it is made “with the lawful consent of the originator or an addressee or intended recipient of such communication.” (Section 2702(b)(3).) Other exceptions are provided for disclosures made to government entities pursuant to a warrant, court order, or a subpoena. (Section 2703(a)–(c).)

Real parties in interest Derrick D. Hunter and Lee Sullivan (“defendants” or “Defendants”) were indicted on murder, weapons, and gang-related charges stemming from a June 2013 drive-by shooting. Each defendant served a subpoena duces tecum on one or more of the petitioners, social media providers Facebook, Inc., Instagram, LLC, and Twitter, Inc. (collectively, “Providers”), seeking both public and private communications from the murder victim’s and a prosecution witness’s accounts. Providers moved to quash the subpoenas on the ground that the Act barred them from disclosing the communications without user consent. The trial court denied Providers’ motion. The California First District Court of Appeal concluded the Act barred enforcement of defendants’ subpoenas and rejected defendants’ arguments that the Act, as applied pretrial, violated their rights under the Fifth and Sixth Amendments to the federal Constitution.

The California Supreme Court reviewed, concluding that the Act’s lawful consent exception permitted providers to disclose communications configured by a user to be public, but not necessarily those configured as private. The Supreme Court also concluded the pretrial subpoenas were unenforceable under the Act “with respect to communications addressed to specific persons, and other communications that were and have remained configured by the registered user to be restricted.” Because production of public communications could make unnecessary the need for additional communications, and because the trial court did not develop an adequate record on alternative ways to obtain communications, the Supreme Court declined to address the parties’ constitutional arguments and remanded the matter to the trial court. The Supreme Court stated that it was not clear “that the trial court made a sufficient effort to require the parties to explore and create a full record concerning defendants’ need for disclosure from providers—rather than from others who may have access to the communications. Consequently, at this point it is not apparent that the court had sufficient information by which to assess defendants’ need for disclosure from providers when it denied the motions to quash ….” Facebook, Inc. v. Superior Court (Hunter), 4 Cal. 5th 1245, 1275-1276 (2018).

On remand, the trial court concluded that the Act must yield to an accused’s due process and confrontation rights, denied the Providers’ renewed motions to quash, and ordered providers to produce the victim’s and witness’s private[22] communications for in camera review (“May 1 order”). Providers petitioned for writ of mandate for a stay of the production order and to quash the subpoenas.

Held: The California First District Court of Appeal observed that the Supreme Court had declined to address the same constitutional arguments as at issue here because the conflict potentially could be obviated by providers’ production of public communications or by obtaining private communications through alternative means. (Id. at pp. 1275–1276.) As the Supreme Court noted, “any third party or entity—including a social media provider—may defend against a criminal subpoena by establishing that, for example, the proponents can obtain the same information by other means, or that the burden on the third party is not justified under the circumstances.” (Id. at p.1290, italics added.)

The Supreme Court had cited City of Alhambra v. Superior Court (1988) 205 Cal.App.3d 1118, 1134, which discusses factors a trial court must consider and balance when deciding whether a defendant may obtain discovery of police reports that might lead to third party culpability evidence. The First District concluded that the trial court did not follow the Supreme Court’s instructions to consider all the relevant factors and, instead, appeared focused only on defendants’ justification for seeking the private communications. In particular, the trial court did not explore options for obtaining materials from other sources prior to issuing its order.

The Court of Appeal rejected as speculation a defendant’s assertion that it would be futile to try to obtain the communications from a witness because the witness would invoke the Fifth Amendment privilege against self-incrimination. The First District also determined that the trial court made no effort to evaluate the defendants’ continuing need for private content after the public content was produced.

The First District found the record did not support the trial court’s finding of good cause for production of the private communications for in camera review. The First District thus concluded that the trial court abused its discretion. Accordingly, the First District granted Providers’ petition and directed the trial court to quash the subpoenas.

C. Penal Code section 10851 violations do not bar Proposition 47 relief for temporary deprivations of possession of a vehicle from its owner.

People v. Bullard, 2020 Cal. LEXIS 1917 (Mar. 23, 2020)

Facts: In 2012, defendant Julian Micah Bullard entered a negotiated plea of guilty to a felony charge of violating Vehicle Code section 10851, which criminalizes the offense of unlawfully taking or driving a vehicle. After staying overnight as his girlfriend’s residence, Bullard took her car keys and drove away in her car without her permission. After talking to his girlfriend that night, Bullard returned the car to her workplace, where he was arrested. The vehicle was valued at approximately $500. Bullard was sentenced to 16 months in jail.

In 2014, voters passed Proposition 47, “the Safe Neighborhoods and Schools Act.” Codified as Penal Code section 490.2, Proposition 47 reduced felony offenses consisting of theft of property worth $950 or less to misdemeanors. Prior to the case here, the California Supreme Court had held that this theft-reduction provision applied to the subset of Section 10851 convictions that were based on obtaining a vehicle worth $950 or less by theft. (People v. Page (2017) 3 Cal.5th 1175, 1187.)

Proposition 47 also added a separate provision that established a procedure for redesignating a past felony offense as a misdemeanor if the offender had already completed his or her sentence and if he or she “would have been guilty of a misdemeanor under [Proposition 47] had this act been in effect at the time of the offense … .” (Penal Code section 1170.18(f).)

After Bullard completed his jail term, he petitioned to have his unlawful taking or driving felony conviction reduced to a misdemeanor under Section 1170.18(f). The trial court denied his petition, finding that Section 10851 was “not affected by Proposition 47.” The Court of Appeal affirmed.

The California Supreme Court granted Bullard’s petition for review but deferred briefing until after it had decided Page. After Page became final, the Supreme Court ordered briefing in the current case to consider whether the Proposition 47’s retroactive theft-reduction provision applied to Section 10851 convictions based on taking a vehicle, in the absence of proof that the defendant intended to permanently deprive the owner of possession.

Held: The Supreme Court of California explained that while liability for theft generally required that the defendant have an intent to permanently deprive the owner of possession, Section 10851 made no distinction between temporary takings and permanent ones. The provision imposed liability on any person who takes a vehicle “with intent either to permanently or temporarily deprive” the owner of possession, “whether with or without intent to steal the vehicle.” (Section 10851(a), italics added.) Section 10851, the Court added, “proscribes a wide range of conduct,” including, but not limited to, vehicle theft. (People v. Jaramillo (1976) 16 Cal.3d 752, 757.)

The Supreme Court observed that in Page, the Court had held that Proposition 47’s theft-reduction provision applied to those Section 10851 convictions based on taking a vehicle with intent to permanently deprive the owner of possession (again, provided the vehicle is worth $950 or less), but not to the nontheft offense of driving a stolen car after the theft is complete. (Page, 3 Cal.5th at p. 1187.) Page expressly postponed for future resolution the question whether “equal protection or the avoidance of absurd consequences” required extending misdemeanor treatment to a person “convicted for taking a vehicle without the intent to permanently deprive the owner of possession.” (Id. at p. 1188, fn. 5.)

The Court stated that the question to be resolved here was whether Proposition 47 required courts to draw a distinction under Section 10851 between permanent and temporary vehicle takings—granting sentencing relief to those who took vehicles permanently but denying relief to those who took vehicles temporarily. In other words, the Supreme Court asked: “Do we understand Proposition 47 to now subdivide [S]ection 10851 vehicle-taking convictions into two new categories—misdemeanor permanent takings and felony temporary ones? Or do we instead understand Proposition 47 to apply to all unlawful takings of low-value vehicles with intent to deprive the owner of possession, regardless of whether the defendant has established an intent to take the vehicle permanently?” (Italics added.)

The Supreme Court held the latter view was correct, finding the former “patently illogical.” The Court explained that when voters enacted Penal Code section 490.2, “they could not possibly have intended thereby to split the atom of the section 10851 vehicle taking into two separate crimes—permanent taking and the included offense of temporary taking—with the latter punished more harshly than the former.” “Certainly, there is no indication in the statute’s stated purpose or history that such was the voters’ intent. The stated purpose of the initiative was to focus prison spending on ‘violent and serious offenses,’ while maximizing alternatives to prison for ‘nonserious, nonviolent crime.’ (Voter Information Guide, Gen. Elec. (Nov. 4, 2014) text of Prop. 47, section 2, p. 70 (Voter Information Guide).) To that end, the measure was designed to ‘[r]equire misdemeanors instead of felonies for nonserious, nonviolent crimes like petty theft and drug possession.’ (Id., section 3, subd. (3), p. 70.)” The parties agreed with the Court on this view.

However, the Attorney General contended that even though a person who violates Section 10851 by committing what the Attorney General called a “pure taking” of a vehicle was eligible for Proposition 47 relief, a person who actually drove the vehicle at any point was not. The Court rejected this distinction. The Court noted that Page had held that the availability of relief under Proposition 47 turned on the distinction between taking—whether accomplished by driving or by other means—and driving a stolen car after its theft is complete, i.e., posttheft driving. (Page, at pp. 1183–1184, 1188–1189.) The Court explained that the Attorney General’s distinction between taking a vehicle by driving it away and taking a vehicle by other means was not one that had ever had any significance under Section 10851.

The Court had held in Page that Proposition 47 was intended to apply to thefts of low-value vehicles prosecuted under that Vehicle Code section 10851. Here, the Court concluded that Proposition 47 was also intended to ameliorate the punishment for low-value vehicle takings committed without the intent to permanently deprive. The Court summarized Proposition 47’s substantive effect on section 10851 thusly: “Except where a conviction is based on posttheft driving (i.e., driving separated from the vehicle’s taking by a substantial break), a violation of [S]ection 10851 must be punished as a misdemeanor theft offense if the vehicle is worth $950 or less. Accordingly, the Supreme Court reversed, and remanded for resolution of a separate question pertaining to the valuation of the car Bullard took from his girlfriend.

D. Proposition 47’s amendment to general statute that criminalizes receipt of stolen property does not extend to convictions for receiving stolen vehicle.

People v. Orozco, 2020 Cal. LEXIS 1918 (Mar. 26, 2020)

Facts: In August 2014, Ernest Orozco was stopped by police officers while he was driving in Escondido. A routine license plate check indicated the car Orozco was driving had been reported stolen. According to the police report, Orozco was the only occupant of the vehicle, and the car had a damaged ignition starter and was running without a key. The police report listed the value of the vehicle as $301. Orozco pled guilty to one count of unlawfully driving a vehicle in violation of Vehicle Code section 10851(a), and one felony count of “unlawfully buying, receiving, concealing, selling or withholding a stolen vehicle” in violation of Penal Code section 496d. He also admitted to prior prison terms and prior convictions for violating Vehicle Code section 10851. His prior Section 10851 convictions required him to be sentenced as a felon for his two August 2014 convictions.

After Orozco pleaded guilty, California voters enacted Proposition 47, the Safe Neighborhoods and Schools Act. The proposition amended several statutory provisions to reduce certain criminal offenses from felonies to misdemeanors. Proposition 47 amended Penal Code section 496, the general statute that criminalizes receipt of stolen property, by making the offense a misdemeanor whenever the value of the property does not exceed $950. (Section 496(a).) However, Proposition 47 did not amend section 496d.

Orozco filed a motion under Proposition 47 to reduce both of his convictions to misdemeanors.[23] The trial court denied Orozco’s motion and treated both convictions as felonies. Orozco appealed, and the Court of Appeal affirmed. After granting review, the Supreme Court of California transferred the case to the Court of Appeal for reconsideration in light of the Supreme Court’s decision in People v. Page (2017) 3 Cal.5th 1175.

Upon reconsideration, the Court of Appeal affirmed Orozco’s conviction under Vehicle Code section 10851 without prejudice to his filing an amended petition to show that the conviction was based on theft of a vehicle worth $950 or less. The Court of Appeal further held that Proposition 47’s revisions to Penal Code section 496 did not extend to convictions, like Orozco’s, for receiving a stolen vehicle under Section 496d. The California Supreme Court then granted review on the issue pertaining to Section 496.

Held: As amended by Proposition 47, Penal Code section 496(a), in relevant part, states that “[e]very person who buys or receives any property that has been stolen or that has been obtained in any manner constituting theft or extortion, knowing the property to be so stolen or obtained …” shall be imprisoned, and “if the value of the property does not exceed nine hundred fifty dollars ($950), the offense shall be a misdemeanor. . . .” (Italics added to indicate the part of the statute amended by Proposition 47.) Before Proposition 47, receiving stolen property worth $950 or less was a “wobbler” offense, i.e., a crime punishable as either a felony or a misdemeanor. As a result of Proposition 47, the statute dictates that “the offense shall be a misdemeanor.” (Section 496(a).)

Section 496d(a) (as distinct from Section 496(a)) also criminalizes buying or receiving stolen property, but it applies specifically to buying or receiving a stolen motor vehicle, or other vehicles.[24] A violation of this statute is a wobbler offense: receiving a stolen vehicle “shall be punished by imprisonment . . . for 16 months or two or three years or a fine of not more than ten thousand dollars ($10,000), or both, or by imprisonment in a county jail not to exceed one year or a fine of not more than one thousand dollars ($1,000), or both.” (Section 496d(a).) Proposition 47 did not amend section 496d.

Orozco argued that because the term “any property” in Section 496(a) included automobiles, his conviction for receiving a stolen vehicle in violation of Section 496d must be treated as a misdemeanor under the amended language of Section 496(a). Orozco relied on Page, which held that “Proposition 47’s new petty theft provision, section 490.2, covers the theft form of the Vehicle Code section 10851 offense,” even though Vehicle Code section 10851 was not amended by Proposition 47 and “is not mentioned in the opening clause of section 490.2, subdivision (a).” (Page, supra, 3 Cal.5th at pp. 1183, 1186.) Page thus determined that under Proposition 47, “obtaining an automobile worth $950 or less by theft . . . is punishable only as a misdemeanor, regardless of the statutory section under which the theft was charged.” (Page, at p. 1187.)

Orozco contended that the term “any property” in Section 496(a) was just as encompassing as the term “any property” in Proposition 47’s petty theft provision, Section 490.2.[25] Therefore, under Page’s logic, the act of receiving a stolen vehicle worth $950 or less is punishable only as a misdemeanor under Proposition 47’s amendment of section 496(a), even if the offense was prosecuted under section 496d.

The Supreme Court found Section 490.2 differed from Section 496(a) in two ways that thwarted Orozco’s attempt to analogize the two. First, Section 490.2 was intended to function as a sweeping catch-all that would capture all forms of theft, including those chargeable under Penal Code section 484e or Vehicle Code section 10851; whereas Proposition 47’s amendment to section 496(a) did not create a new offense or purport to broadly reclassify several existing offenses, but rather reduced the punishment for a subset of an existing offenses. The Court found that unlike Section 490.2, the clause in Section 496(a) reducing punishment for receipt of stolen property valued at $950 or less did not “‘stand[] on its own.’“ (Page, supra, 3 Cal.5th at p. 1186.)

Second, Section 490.2 applies “[n]otwithstanding Section 487 or any other provision of law defining grand theft.” (Section 490.2(a).) Page concluded that this “notwithstanding” clause clarified that if the Section 490.2 conflicted with a preexisting statute punishing the same conduct, Section 490.2 would override that other statute. Page explained that the existence of the “notwithstanding” clause at least indicated that the drafters anticipated that conduct criminalized by Section 490.2 would overlap with conduct criminalized by other statutes and that they intended Section 490.2 to reclassify such conduct as “petty theft” punishable only as a misdemeanor. (Page, at p. 1186.) Here, the Supreme Court found the absence of any “notwithstanding” clause in Section 496(a) indicated that the drafters did not intend for the statute to affect conduct criminalized in other statutes, let alone reclassify conduct covered in those statutes. Thus, the Court found that Section 490.2 was therefore not comparable to Section 496(a) in the way that Orozco proposed.

The Supreme Court considered the statutory context here to be clear. The Court explained that it was a settled principle of statutory interpretation that when voters had employed a term or phrase in one place and excluded it in another, it should not be implied where excluded. (People v. Buycks (2018) 5 Cal.5th 857, 880.) The Supreme Court noted that it “generally presume[s] that the electorate is aware of existing laws,”[26] and the Court therefore presumed the electorate was aware of Section 496d when it approved Proposition 47. Proposition 47 only amended Section 496(a) to reduce receipt of stolen property valued at $950 or less to a misdemeanor, and left Section 496d unchanged. The Court explained that if the electorate had intended to reclassify Section 496d offenses as well, it could have done so in the same way that it did in amending Section 496(a). The Court explained that the electorate also could have created a new misdemeanor sentencing provision governing all receipt of stolen property offenses, similar to the misdemeanor sentencing provision governing petty theft in Section 490.2. However, the electorate did not do so.

The Supreme Court thus concluded that Orozco’s Section 496d conviction was not eligible for a sentence reduction under Proposition 47, and accordingly affirmed the judgment of the Court of Appeal.

[1] Schmitz, at p. 922, fn. 13, citing People v. Middleton, 131 Cal.App.4th 732, 739–740 (1st Dist. 2005).

[2] Penal Code section 3067, subds. (a), (b)(3)).

[3] Section 922(g)(4)’s prohibition from firearm possession applies to involuntary commitment. Federal regulations make clear that the prohibition does not apply to “a person in a mental institution for observation or a voluntary admission to a mental institution.” 27 C.F.R. section 478.11. (italics added.)

[4] Plaintiff also alleged violation of his Fifth Amendment right to due process, but after the District Court rejected Plaintiff’s due process claim, Plaintiff did not advance the Fifth Amendment claim on appeal to the Ninth Circuit.

[5] Tyler v. Hillsdale County Sheriff’s Department, 837 F.3d 678, 691 (6th Cir. 2016) (en banc).

[6] Washington v. Glucksberg, 521 U.S. 702, 730-35 (1997).

[7] Schall v. Martin, 467 U.S. 253, 264 (1984).

[8] Tyler, 837 F.3d at 693.

[9] Dickerson v. New Banner Inst., Inc., 460 U.S. 103, 112 n.6 (1983).

[10] A casita is a separate small house/living area (usually detached from the main home, although not in this case).

[11] Community Hospital of Long Beach no longer operates.

[12] Yurick v. Superior Court, 209 Cal.App.3d 1116, 1121 (3rd Dist. 1989).

[13] Cole v. Antelope Valley Union High School Dist., 47 Cal.App.4th 1505, 1511, 1515 (2nd Dist. 1996).

[14] Valdez v. City of Los Angeles, 231 Cal.App.3d 1043, 1061 (2nd Dist. 1991).

[15] Bus. & Prof. Code section 26000 et seq., as amended by Stats. 2017, ch. 27, section 4.

[16] Bus. & Prof. Code section 26200(a)(1).

[17] Bus. & Prof. Code section 26055(d).

[18] People v. Bollaert, 248 Cal.App.4th 699, 708–709 (4th Dist. 2016), quoting People v. Barba, 211 Cal.App.4th 214, 223 (4th Dist. 2012).

[19] People v. Truong, 10 Cal.App.5th 551, 562 (2nd Dist. 2017).

[20] People v. Page, 3 Cal.5th 1175, 1182 (2017).

[21] People v. Sanders, 22 Cal.App.5th 397, 400 (4th Dist. 2018).

[22] The trial court, in accord with the Supreme Court’s Hunter decision holding that Providers could disclose social media communications designated by a user as public, also ordered one of the Providers to produce public content.

[23] Because Orozco had not yet been sentenced, he sought relief directly under the new law rather than resentencing under Penal Code section 1170.18 (a). (See People v. Lara (2019) 6 Cal.5th 1128, 1135 [“Because defendant had not yet been sentenced at the time Proposition 47 became effective, its ameliorative provisions apply.”].)

[24] Section 496d(a) criminalizes buying or receiving a stolen “motor vehicle, as defined in Section 415 of the Vehicle Code, any trailer, as defined in Section 630 of the Vehicle Code, any special construction equipment, as defined in Section 565 of the Vehicle Code, or any vessel, as defined in Section 21 of the Harbors and Navigation Code . . . .” (Section 496d, subd. (a).)

[25] Section 490.2, subd. (a) provides in part: “Notwithstanding Section 487 or any other provision of law defining grand theft, obtaining any property by theft where the value of the money, labor, real or personal property taken does not exceed nine hundred fifty dollars ($950) shall be considered petty theft and shall be punished as a misdemeanor . . . .” (italics added.)

[26] People v. Romanowski (2017) 2 Cal.5th 903, 909, citing In re Lance W. (1985) 37 Cal.3d 873, 890 & fn. 10.

A. Juvenile correctional officer improperly granted summary judgment on a juvenile detainee’s 42 U.S.C. section 1983 Fourteenth Amendment claims because a jury could find that officer’s alleged actions violated the detainee’s right to privacy when he allegedly watched her shower multiple times, violated her right to bodily integrity, and violated the detainee’s right to be free from punishment. Nor was officer entitled to qualified immunity.

Vazquez v. Cnty. of Kern, 2020 U.S. App. LEXIS 3188 (9th Cir. Jan. 31, 2020)

Facts: Samantha Vazquez was arrested on an outstanding warrant and taken to Kern County Juvenile Hall in January 2015. She was housed in an all-female unit where Juvenile Corrections Officer George Anderson worked. Juvenile hall staff frequently placed wards on work “details,” including laundry, kitchen, and clean-up.

According to Vazquez, Anderson purposefully selected her to work details with him. During her deposition, Vazquez testified that Anderson said inappropriate things to her such as calling her “babe” and telling her she had a “big butt.” She testified that Anderson “grabbed [her] face,” “touched [her] shoulders,” and talked with her about her shower gown. Vazquez described one specific incident where she Anderson told her about a “rated R” dream he had about her. She testified that he told her to shut the door and Anderson said that, in the dream, she “grabbed him by his t-shirt,” “gave him a kiss” and “after that [they] ended up going to a room and, like, having fun and stuff.” After that, she testified that he told her “to get close to him, like, to the point where he had opened his knees and [she] was right in the middle of him, and [he] told [her] that he wanted his dream to come true.” Vazquez testified that she moved away from him after and felt “really, really awkward.”

Vazquez also alleged that Anderson would tell her which shower stalls to use and that he looked at her inappropriately while she was showering on three or four occasions. She testified that she caught him staring at her in the shower when he was standing at the staff counter and that she tried to cover herself up (the record reflected that a person sitting at the staff counter could look into at least one of the shower stalls through a gap in the shower curtains). She also testified that Anderson told her he had seen her in the shower, and that she should leave her boyfriend and “find someone better like him.”

Vazquez reported her allegations to a substance abuse specialist, who felt Vazquez was being truthful. The County of Kern (the “County”) began an investigation led by Shaun Romans. Romans interviewed fifty-five people and reviewed three interviews conducted by the Bakersfield Police Department. The investigation lasted eight months. Romans testified that he “leaned toward [the allegations] being true.” The allegations were sustained by the disciplinary review board at the probation department. The County then began the process of terminating Anderson’s employment.

Vazquez filed an action against Anderson and his supervisor, Heathe Appleton. She brought claims under 42 U.S.C. section 1983, alleging that Anderson’s conduct violated her constitutional rights. Vazquez argued that while she was in custody, Anderson made sexual comments to her, groomed her for sexual abuse, and looked at her inappropriately while she was showering. She also alleged a claim against Appleton for supervisory liability.

Anderson testified that that he was never told that he could not sit at the staff counter while female wards showered, and that he had sat there once or twice. He testified that he had selected Vazquez to work with him once or twice because she supplied him with useful gang intelligence and because she was a good worker. He said that “maybe once” he had been alone in a room with Vazquez for twenty minutes.

Several staff members testified that they observed Anderson alone with female wards, including Vazquez. Another staff member testified that she observed Anderson sitting at the staff counter while female wards showered. The Director of Kern County Juvenile Hall testified that at the time of Vazquez’s allegations, Kern County had policies in place at the juvenile hall to prevent or deter sexual abuse of wards. She further testified that certain standards in place at the time implemented the Prison Rape Elimination Act (“PREA”).[1]

The Director also testified that Section 1425 of the Juvenile Hall Basic Staff Rules, which were in effect at the time of the allegations, stated: “Staff members are not permitted alone in the rooms with minors of the opposite gender except during an emergency. For security purposes, staff should avoid being alone with any minor in their room.” She testified that the Juvenile Hall Administrative Manual required supervision of the showers to be provided by staff of the same gender as the youth and that “except in exigent circumstances or incidental to a routine youth safety check the youth will be permitted to shower, perform bodily functions, and change clothing without nonmedical staff of the opposite gender viewing their breasts, buttocks, or genitalia.”

The District Court ultimately granted Anderson’s and Appleton’s motions for summary judgment. The District Court concluded that even if Vazquez’s sexual abuse allegations were true, Anderson’s alleged conduct did not violate her constitutional rights; that Anderson’s alleged conduct was not sufficiently frequent to violate Vazquez’s right to privacy; and that even assuming Anderson’s conduct rose to the level of a constitutional violation, he was entitled to qualified immunity. Vazquez appealed.

Held: The Ninth Circuit Court of Appeals explained that the right to bodily privacy under the Fourteenth Amendment was established in the circuit in 1963, and extended this right to prison inmates in 1985. [2] The Circuit had also established that a pretrial detainee has “at least the same right to bodily privacy as a prisoner,” Byrd v. Maricopa Cty. Bd. of Supervisors, 845 F.3d 919, 923 (9th Cir. 2017).

The Court observed that in Grummett v. Rushen, 779 F.2d 491 (9th Cir. 1985), a class action argued that a “policy and practice of allowing female correctional officers to view male inmates in states of partial or total nudity while dressing, showering, being stripped searched, or using toilet facilities violated [the inmates’] rights of privacy.” (Id. at 492.) The Ninth Circuit in that case had noted that female guards were not assigned to positions requiring unrestricted and frequent surveillance, female guards did not accompany male inmates to the showers, and females were assigned to the more distant position overlooking showers, where the surveillance was obscured. Grummett concluded that the inmates had not demonstrated that the restricted observations were “so degrading as to require intervention by this court.” (Id. at 494.) In Sepulveda v. Ramirez, 967 F.2d 1413 (9th Cir. 1992), the Ninth Circuit had affirmed a lower court’s order that an officer there was not entitled to summary judgment on the basis of qualified immunity, concluding that the plaintiff’s experience was “far more degrading” Id. at 1415-16 than the situation faced by the inmates in Grummett. The Sepulveda Court explained that, unlike in Grummett, the defendant’s view of the parolee was “neither obscured nor distant.” Id.

Here, Vazquez alleged that Anderson watched her shower multiple times and looked into her room once when her privacy sign was up, while Anderson argued that detention facility security and safety provided compelling state interest for his behavior. However, noting testimony from other staff and the director of the juvenile hall that Anderson’s actions were against institution policy, the Ninth Circuit found no such compelling state interest for the alleged actions. Moreover, viewing the evidence in the light most favorable to Vazquez, the Court found that Anderson’s view was not necessarily “obscured and from a distance.” Even if it was, the question of whether his observation was “infrequent and casual” remained in dispute. The Court noted there was evidence that Anderson directed Vazquez to use a certain shower stall so he could obtain the best view. The Court therefore held that a reasonable jury could conclude that Anderson violated Vazquez’s Fourteenth Amendment right to bodily privacy.

The Court also concluded that a reasonable jury could find that Anderson’s alleged conduct involving unwanted sexual contact or harassment violated Vazquez’s Fourteenth Amendment right to bodily integrity, which required the Court to “use the ‘shocks the conscience’ test.” Fontana v. Haskin, 262 F.3d 871, 882 n.7. (9th Cir. 2001) (citing Cty. of Sacramento v. Lewis, 523 U.S. 833, 846 (1998)). That test’s threshold question was “whether the behavior of the governmental officer is so egregious, so outrageous, that it may fairly be said to shock the contemporary conscience.” Sacramento, 523 U.S. at 848 n. 8. In Fontana, the Court had found that an officer who allegedly touched and made sexual comments to an arrested plaintiff in the back of a police vehicle abused his power and violated the plaintiff’s bodily integrity. Here, the Court found Vazquez’s assertions that Anderson touched her and made sexual comments to her sufficiently similar to those in Fontana. Moreover, the Court determined that the context of Vazquez’s allegations (she was a female ward at a juvenile hall, Anderson was older and larger than she was, wore a uniform, and had the power to discipline her if she refused to follow his instructions) demonstrated that she was at least as vulnerable as the Fontana plaintiff. Thus, a jury could find that Anderson’s alleged conduct “was egregious and outrageous and shocks the conscience as a matter of law.” Fontana, 262 F.3d at 882 n.7. The Court also concluded that a jury could find that Anderson violated Vazquez’s Fourteenth Amendment right to be free from punishment.

The Court next considered the District Court’s qualified immunity conclusion. “Qualified immunity attaches when an official’s conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.” Kisela v. Hughes, 138 S. Ct. 1148, 1152 (2018) (internal quotation marks and citation omitted). “A clearly established right is one that is sufficiently clear that every reasonable official would have understood that what he is doing violates that right.” Mullenix v. Luna, 136 S. Ct. 305, 308 (2015) (internal quotation marks and citation omitted).

Given that the Ninth Circuit had clearly recognized a Fourteenth Amendment right to bodily privacy, the Juvenile Hall administrative policies, and the PREA training Anderson likely attended, the Ninth Circuit concluded that Anderson was not entitled to qualified immunity for Vazquez’s Fourteenth Amendment bodily privacy claim.

The Court also concluded that Anderson was not entitled to qualified immunity for Vazquez’s bodily integrity or punishment claims. The Court observed that “[i]n the simplest and most absolute of terms the . . . right of prisoners to be free from sexual abuse [is] unquestionably clearly established [in the Ninth Circuit] . . . and no reasonable prison guard could possibly [believe] otherwise.” Schwenk v. Hartford, 204 F.3d 1187, 1197 (9th Cir. 2000). The Court explained that beyond the clearly established case law, training, and juvenile hall policies, it was obvious that a juvenile corrections officer should not sexually harass or abuse a juvenile ward as it is always wrong for a juvenile corrections officer to engage in such conduct. See Sharp v. Cty. of Orange, 871 F.3d 901, 912 (9th Cir. 2017).

Regarding Vazquez’s supervisory liability claim against Appleton, Anderson’s supervisor, the Court observed that “[a]lthough there is no pure respondeat superior liability under [Section] 1983, a supervisor is liable for the acts of his subordinates if the supervisor participated in or directed the violations, or knew of the violations [of subordinates] and failed to act to prevent them. Preschooler II v. Clark Cty. Sch. Bd. of Trustees, 479 F.3d 1175, 1182 (9th Cir. 2007) (internal quotation marks and citation omitted). The Court found that Appleton knew or reasonably should have known of Anderson’s violations and failed to act to prevent them. The Court noted that Appleton had observed Anderson alone with female wards on more than one occasion and failed to intervene; Anderson also testified that Appleton gave him permission to be alone in a cell with female wards during work details; and Appleton was aware of, and even brought up with a supervisor, a prior incident involving Anderson’s supervision of female wards’ showers approximately six months before Vazquez raised her allegations. The Court thus concluded that a jury could find that Appleton knew or reasonably should have known of Anderson’s violations and failed to act to prevent them.

Because the Ninth Circuit Court of Appeals concluded that the District Court erred when it granted Anderson’s and Appleton’s motions for summary judgment, the Ninth Circuit accordingly reversed and remanded.

B. Qualified immunity only extends to officers using deadly force with an objectively reasonable basis for believing their own safety or safety of others is at risk.

Orn v. City of Tacoma, 949 F.3d 1167 (9th Cir. 2020)

Facts: In October 2011, a Tacoma Police Department (“Department”) officer noticed Than Orn driving without his headlights on and attempted to pull Orn over. Orn did not pull over, but instead embarked on a roughly 15-minute journey home to his apartment complex. Orn drove between 25 and 35 miles per hour and stopped at traffic lights and stop signs. The officer pursued Orn, along with additional Department officers who joined the slow-speed pursuit. These included Officer Kristopher Clark and his partner Donald Rose who were driving in a Department sport utility vehicle. At different points during the pursuit, police units attempted unsuccessfully to box Orn, drove in front of Orn’s vehicle to block his path, and put down spike strips but Orn evaded these attempts (to avoid the spike strips, Orn swerved away from the officers and into the oncoming lane of traffic where no oncoming vehicles were traveling toward him at the time).

During the pursuit, officers accurately predicted that Orn might be going home to the apartment complex address to which his vehicle was registered. Clark knew that the complex had a long outdoor parking lot with only two entrances, one at the north end and the other at the south end. When Clark saw Orn head toward the south entrance with police vehicles pursuing, Clark entered the north entrance and positioned his SUV across a narrow point of the single access lane that ran the length of the parking lot, in an effort to prevent Orn from exiting the complex on the north end. Orn proceeded slowly down the access lane toward the north end of the complex. When he approached Clark’s SUV he came to a brief stop. According to Orn (and disputed by Clark), Clark was standing on the grassy area to the left of his SUV as Orn approached. Clark had his gun drawn with the barrel pointed toward the ground and repeatedly yelled at Orn to stop. Orn instead moved slowly away from Clark and attempted to maneuver his vehicle in a narrow opening between Clark’s SUV and a parked vehicle. Another officer, Steven Butts, positioned his vehicle to cut off any path for Orn to escape through the north entrance.

In response, Orn turned his vehicle more sharply to the right to avoid hitting Butts’s vehicle. Orn and officers on the scene later estimated Orn’s speed at five miles per hour. Orn clipped the rear passenger side panel of Clark’s SUV and also struck the right front corner of Officer Butts’s vehicle in the process. According to Orn (and disputed by Clark), just after his vehicle moved past Clark’s SUV, Orn saw Clark run toward his vehicle on the passenger side and shoot at Orn, striking him in the spine. Clark ran behind Orn’s vehicle as it sped away, firing seven more rounds through the rear windshield. Orn’s vehicle subsequently was stopped after he hit several parked cars and crashed into a chain-link fence. Officers took Orn into custody. Three of the ten rounds Clark fired struck Orn. Orn was left paralyzed from the waist down by the bullet that lodged in his spine.

Orn was acquitted of using his vehicle to assault Clark and also acquitted of attempting to elude a pursuing police vehicle. He was convicted of the lesser-included offense of failure to obey a law-enforcement officer, and was ordered to pay a fine of $250.

Orn sued Clark and the City of Tacoma under 42 U.S.C. section 1983, alleging a violation of his Fourth Amendment right to be free from the use of excessive force. Clark moved for summary judgment on the basis of qualified immunity. The District Court denied the motion, and Clark took an interlocutory appeal from that order.

Held: The Ninth Circuit Court of Appeals explained as an important initial matter that, in an interlocutory appeal challenging the denial of qualified immunity, the Court had to construe the facts in the light most favorable to the plaintiff.[3] The Court explained that because nothing in the record blatantly contradicted Orn’s account of the events, the Court must assume that a jury could find Orn’s account of what happened credible, even if it conflicted with Clark’s account. For the Court’s purposes here, therefore, all disputed factual issues were resolved in Orn’s favor.

The Court first held that, viewing the facts in the light most favorable to Orn, a reasonable jury could conclude that Officer Clark violated Orn’s Fourth Amendment right to be free from the use of excessive force. Thus, the Court determined that Clark did not have an objectively reasonable basis for believing that Orn posed a threat of serious physical harm, either to the officer himself or to others. The Court noted that construing the facts in Orn’s favor, he never targeted officers with his vehicle or forced other vehicles off the road. Moreover, he traveled at normal speeds and stopped at traffic lights and stop signs throughout the pursuit.

Turning to the second step of the qualified immunity analysis, the Court held that Orn’s right to be free from the use of excessive force was clearly established at the time of the shooting. The Court noted that in October 2011, at least seven circuits had held that an officer lacks an objectively reasonable basis for believing that his own safety is at risk when firing into the side or rear of a vehicle moving away from him. The Ninth Circuit also noted that in Adams v. Speers, 473 F.3d 989 (9th Cir. 2007), the Circuit itself had held that an officer violated the Fourth Amendment by firing through the front windshield of a vehicle moving backward away from him.

The Court stated that, taking the facts in the light most favorable to Orn, a reasonable jury could conclude both that Officer Clark was never in the path of Orn’s vehicle and that the officer fired through the passenger-side windows and rear windshield as the vehicle was moving away from him. The Court further held that under Orn’s version of events, he never engaged in any conduct that suggested his vehicle posed a threat of serious physical harm to another officer on the scene, or to anyone else in the vicinity.

The Court thus concluded that Clark was not entitled to qualified immunity. Accordingly, the Ninth Circuit Court of Appeals affirmed the District Court’s order denying Clark’s motion for summary judgment.

C. In a capital case, ample evidence supported a finding that defendant’s waiver of his Miranda rights was voluntary, knowing, and intelligent. Two police officers explained each Miranda right to defendant, after which he indicated that he understood.

People v. Frederickson, 8 Cal. 5th 963 (2020)

Facts: On June 13, 1996, 30-year-old Scott Wilson was working as a customer service manager at the HomeBase home improvement store in Santa Ana when Daniel Carl Frederickson walked in and shot Wilson once in the head, killing him. Santa Ana police officers arrived at the store within a few minutes of the shooting. Officer Ronald Dryva was on the scene for two to three hours interviewing witnesses. During that time, Frederickson called and spoke to an employee without identifying himself by name. The employee handed the phone to Dryva, but Frederickson believed he was still speaking with the employee. Dryva heard the caller admit he shot Wilson because he was frustrated and angry, and say that he would “probably” turn himself in that night. Frederickson did not do so, but officers located him at his residence the following day and arrested him. They found a .32-caliber revolver containing five live rounds and one empty round.

Santa Ana police investigators Phillip Lozano and Mark Steen interviewed Frederickson shortly after his arrest on June 14. Steen advised Frederickson of his Miranda rights. (Miranda v. Arizona (1966) 384 U.S. 436.) Following each advisement, Steen asked Frederickson if he understood. To each question, Frederickson replied, “Yes, sir,” acknowledging he understood his rights and agreed to speak with the officers. Steen then proceeded to question Frederickson about his involvement in the crime. Early in the questioning, Frederickson said, “Hey, when am I going to get a chance to call my lawyer. It’s getting late, and he’s probably going to go to bed pretty soon.” Steen replied, “Your lawyer? Well you can call your lawyer after we’re done in our facility.” Frederickson said, “Oh, okay. So what do we got to do in our facility here?” Steen explained, “Well, we’re conducting this interview.” When Frederickson asked if they could finish the interview the following day, Steen replied, “Um, we can continue talking tomorrow; however, we’re not going to continue the interview.” Steen then continued asking Frederickson about the murder.

Frederickson subsequently admitted he had been committing robberies for nearly 15 years and that he walked into the HomeBase with “a game plan,” he identified Wilson as the manager and followed him to the safe. Wilson ignored Frederickson’s instructions to “put that money in this box.” Frederickson said that “the next thing I knew, you know, [the gun] was at his temple.” He expected Wilson to hand over the money and was surprised and “pissed off” that Wilson refused. After firing the shot, he ran out of the store and into his van. Frederickson, crying as he spoke to the investigators, explained that he called the HomeBase store approximately one hour later and said to the manager “I told him, ‘You son of a [expletive]. That [expletive] didn’t need to die.’ … that [expletive] died protecting [the money].” Frederickson told the investigators, “…if I get caught, you know, I’ll go back in for about two or three years and, you know, … get out and try it again later.”

The next day Frederickson admitted to a newspaper reporter who interviewed Frederickson in jail that he was attempting to rob the store and shot Wilson during the attempt.

In July 1996, Frederickson sent Officer Lozano a letter asking to speak with the investigators again. 0n August 12, 1996, Lozano and Steen again interviewed Frederickson. Lozano advised Frederickson that he was represented by the public defender, who had invoked Frederickson’s right to remain silent. Lozano asked if Frederickson would like to waive his right to have an attorney present. Frederickson replied, “I waive that, and I have since fired him.” Lozano advised Frederickson of his Miranda rights, and Frederickson signed a waiver. Lozano then interviewed Frederickson, who explained that he had “held back some info” regarding accomplices. Frederickson discussed these accomplices, along with the gun used in the murder, the robbery, and the spent shell casing.

In June 1997, Frederickson filed a pretrial motion to suppress his statements from the June 14 interview. He also moved to dismiss the information on the grounds that his confession was obtained in violation of Miranda, and without the confession, there was insufficient evidence to hold him to answer on the murder charge. In September 1997, Frederickson filed a motion to suppress both the June 14 confession and his statements from the August 12 interview. He argued the August statements “still carried the taint” of the June 14 interview at which the investigators engaged in misconduct by failing to notify his counsel when he requested to speak with them. Frederickson further argued that his “known history of mental illness and current treatment with psycho[tropic] medications are factors to consider.”

At a hearing, the trial court denied the motions. The trial court found that Frederickson’s statements during the June 14 interview expressed a desire to speed up the interview so that he could call his attorney when the interview was over, but did not constitute a clear request for an attorney. The trial court found that because Frederickson initiated contact before the August interview and signed written waivers of the presence of counsel and of his Miranda rights, “defendant can hardly complain that his statements were coerced, involuntary, or in violation of his right to counsel.” The trial court further found that Frederickson presented no evidence of any mental defect that would preclude him from understanding and waiving his rights.

A jury convicted Frederickson of first degree murder. The jury found true the special circumstance allegation that Frederickson committed the murder while engaged in the commission of the attempted robbery, and it also found true that Frederickson personally used a firearm while committing the crime. After a sanity trial, the jury found Frederickson was sane at the time of the crimes. After a penalty trial, the jury returned a verdict of death, and the trial court imposed a judgment of death. An automatic appeal followed.

Held: On appeal, Frederickson asserted that the trial court erred in failing to suppress his statements from the June 14 interview because he did not validly waive his right to counsel. He further asserted the trial court erred in failing to suppress statements from the August 12 interview because there was no break in the causal chain from the erroneous first interrogation.

The California Supreme Court explained that the United States Supreme Court in Miranda set forth prophylactic measures to protect an individual’s right against self-incrimination from curtailment under the inherently compelling pressures of custodial interrogation. A suspect “must be warned prior to any questioning that he has the right to remain silent, that anything he says can be used against him in a court of law, that he has the right to the presence of an attorney, and that if he cannot afford an attorney one will be appointed for him prior to any questioning if he so desires.” (Miranda, supra, 384 U.S. 436, 479.) After a suspect has heard and understood these rights, he or she may waive them.[4] However, the prosecution bears the burden of showing that the waiver was knowing, voluntary, and intelligent under the totality of circumstances. (People v. Linton (2013) 56 Cal.4th 1146, 1171; see Maryland v. Shatzer (2010) 559 U.S. 98, 104.)

The Supreme Court noted that in its prior case People v. Whitson,[5] a police officer interviewed the defendant on three separate occasions. At the beginning of each interview, the officer advised the defendant of his rights under Miranda and asked whether he understood them. Each time, the defendant responded that he did. The officer then proceeded to question the defendant. The Court had concluded the defendant’s statements were voluntary, noting that the record was devoid of any suggestion that the police resorted to physical or psychological pressure to elicit them. The Court had also concluded the defendant was aware of the rights he was waiving and the consequences of his decision to do so, observing that there was no evidence that during any interview his judgment was clouded or otherwise impaired. The Court had further concluded that the defendant’s waiver was intelligent, noting that there was no evidence that he lacked sufficient intelligence to understand his rights or the consequences of waiving them. The Whitson Court held: “Although the police officers did not obtain an express waiver of defendant’s Miranda rights, decisions of the United States Supreme Court and of this court have held that such an express waiver is not required where a defendant’s actions make clear that a waiver is intended.” (Ibid.; see North Carolina v. Butler (1979) 441 U.S. 369, 374–375.)

Here, the California Supreme Court found “ample evidence support[ed] a finding … that [Frederickson]’s waiver was voluntary, knowing, and intelligent. Officers Steen and Lozano explained each Miranda right to [Frederickson], after which he indicated that he understood. Following a complete admonition, [Frederickson] began to discuss his role in the murder. His actions made clear that a waiver was intended.”

The Court also concluded that Frederickson did not unequivocally invoke his right to counsel when he subsequently asked, “Hey, when am I going to get a chance to call my lawyer? It’s getting late, and he’s probably going to go to bed pretty soon.” The Court explained that when a defendant has waived his Miranda rights and agreed to speak with police, any subsequent invocation of the right to counsel must be unequivocal and unambiguous. (Davis v. United States (1994) 512 U.S. 452, 461–462.) “[A]fter a knowing and voluntary waiver, interrogation may proceed ‘until and unless the suspect clearly requests an attorney.’” (People v. Williams (2010) 49 Cal.4th 405, 427.) The Court held that Frederickson’s statement that it was getting late and his question about when he would get to call his lawyer did not amount to an unequivocal and unambiguous request for counsel. The Court explained that a reasonable officer in Steen and Lozano’s position would have concluded that the remark expressed concern over the length of the interview and a desire to contact counsel when the interview was over. Frederickson never said that he wanted to stop the interview immediately and consult counsel.

The California Supreme Court thus concluded that Frederickson’s statements from the June 14 interview were properly obtained, and so it followed that his subsequent statements at the August 12 interview did not carry any taint from the previous interview. The Court observed that the investigators readvised Frederickson of his Miranda rights before beginning the August 12 interview, and that he signed a waiver. The Court also determined that the record did not demonstrate that defendant failed to understand or validly waive his rights. Accordingly, the Court affirmed on these matters.

D. No extension of Bivens damages remedy for cross-border shooting because such a claim has foreign relations and national security implications and involves tortious conduct abroad.

Hernandez v. Mesa, 140 S. Ct. 735 (2020)

Facts: Sergio Adrián Hernández Güereca, a 15-year-old Mexican national, was with a group of friends in a concrete culvert that separates El Paso, Texas, from Ciudad Juarez, Mexico. The border runs through the center of the culvert, which was designed to hold the waters of the Rio Grande River but is now largely dry. Border Patrol Agent Jesus Mesa, Jr., detained one of Hernández’s friends who had run onto the United States’ side of the culvert. After Hernández, who was also on the United States’ side, ran back across the culvert onto Mexican soil, Agent Mesa fired two shots at Hernández; one struck and killed him on the other side of the border.

According to Hernández’s parents, he was playing a game with his friends that involved running back and forth across the culvert separating El Paso, Texas, from Ciudad Juarez, Mexico. According to Agent Mesa, Hernández and his friends were involved in an illegal border crossing attempt, and they pelted him with rocks.

The shooting drew international attention, and the United States Department of Justice investigated. The Department concluded that Agent Mesa had not violated Customs and Border Patrol policy or training, and declined to bring charges or take other action against him. The United States also denied Mexico’s request for Agent Mesa to be extradited to face criminal charges in Mexico.

Hernández’s parents sued for damages in the United States District Court for the Western District of Texas under the United States Supreme Court’s decision in Bivens v. Six Unknown Fed. Narcotics Agents, 403 U. S. 388 (1971), alleging that Mesa violated Hernández’s Fourth and Fifth Amendment rights. The District Court dismissed their claims, and the United States Court of Appeals for the Fifth Circuit affirmed. After the United States Supreme Court vacated that decision and remanded for further consideration in light of Ziglar v. Abbasi, 582 U. S. ___, 137 S. Ct. 1843, 198 L. Ed. 2d 290 (2017), the Fifth Circuit again affirmed, refusing to recognize a Bivens claim for a cross-border shooting. The parents petitioned and the United States Supreme Court granted certiorari.

Held: The Supreme Court affirmed in a 5-4 decision. Justice Alito was joined in the opinion by Justices Roberts, Gorsuch, Thomas, and Kavanaugh. The Court observed that in Bivens, the Court broke new ground by implying a Fourth Amendment claim for damages even though no federal statute authorized such a claim. The Court later extended Bivens’ reach to cover two additional Constitutional claims under the Fifth and Eighth Amendments.[6] However, the Court here explained, Bivens’ expansion has since become “a ‘disfavored’ judicial activity” (Abbasi, supra, at ___, 137 S. Ct. 1843, 198 L. Ed. 2d 290, 299), and the Court has generally expressed doubt about its authority to recognize causes of action not expressly created by Congress.[7] The Court added that the Court’s justices had previously “gone so far as to observe that if ‘the Court’s three Bivens cases [had] been . . . decided today,’ it is doubtful that we would have reached the same result, 582 U. S., at ___, 137 S. Ct. 1843, 198 L. Ed. 2d 290, at 309. And for almost 40 years, we have consistently rebuffed requests to add to the claims allowed under Bivens.”

With the rarity of Bivens extensions thus established, the Court explained the applicable test. When considering whether to extend Bivens, the Court uses a two-step inquiry that first asks whether the request involves a claim that arises in a “new context” or involves a “new category of defendants.”[8] If so, the Court then asks whether there are any “special factors [that] counse[l] hesitation” about granting the extension. Abbasi, supra, 198 L. Ed. 2d 290, at 309.

The Court concluded that it was “glaringly obvious” that the parents’ Bivens claims here arose in a new context. The Court explained that the parents’ claims were based on the same constitutional provisions as claims in cases in which damages remedies were previously recognized, but the context—a cross-border shooting—was significantly different . . . from previous Bivens cases. The Court explained that the petitioners’ cross-border shooting claims involved a “risk of disruptive intrusion by the Judiciary into the functioning of other branches.” Abbasi, supra, ___, 137 S. Ct. 1843, 198 L. Ed. 2d 290.

The Court consequently turned to the second step of the inquiry, concluding that multiple, related factors counseled hesitation before extending Bivens remedies into this new context. The Court explained that expanding Bivens here would impinge on foreign relations and risk interfering with the Executive Branch’s lead role in foreign policy and diplomacy. The Court found another factor in the risk of undermining border security, given its connection to national security. Moreover, a third factor was presented by the fact that Congress has repeatedly declined to authorize the award of damages against federal officials for injury inflicted outside U. S. borders. The Court explained that Congress’s decision not to allow suit in these contexts further indicated that the Judiciary should not create a cause of action that extended across U. S. borders either. Lastly, the Court explained that Congress should be the governmental branch to create a damages remedy, not the courts, pursuant to the separation of powers doctrine.

Justice Ginsburg dissented, joined by Justices Breyer, Sotomayor, and Kagan. The dissent would have held that the plaintiffs’ complaint crossed the Bivens threshold. Justice Ginsburg noted that at the time of the incident, the officer did not know whether the boy he shot was a U. S. national or a citizen of another country.[9] Justice Ginsburg stated that Abbasi acknowledged the “fixed principle” that plaintiffs may bring Bivens suits against federal law enforcement officers for “seizure[s]” that violate the Fourth Amendment,[10] and that using lethal force against a person who posed no immediate threat to the officer and no threat to others surely qualified as an unreasonable seizure. Tennessee v. Garner, 471 U. S. 1, 11, 105 S. Ct. 1694, 85 L. Ed. 2d 1. Justice Ginsburg noted that according to the complaint, Hernández was unarmed and posed no threat to Mesa or others. Justice Ginsburg noted that Mesa acknowledged at oral argument that Hernández’s parents could have maintained a Bivens action had the bullet hit Hernández while he was running up or down the United States side of the embankment. Justice Ginsburg stated: “The only salient difference here: the fortuity that the bullet happened to strike Hernández on the Mexican side of the embankment. But Hernández’s location at the precise moment the bullet landed should not matter one whit. After all, ‘[t]he purpose of Bivens is to deter the officer.’ Abbasi, 582 U. S., at ___, 137 S. Ct. 1843, 198 L. Ed. 2d 290, at 312 (internal quotation marks omitted).” She added: “It scarcely makes sense for a remedy trained on deterring rogue officer conduct to turn upon a happenstance subsequent to the conduct—a bullet landing in one half of a culvert, not the other.” “Rogue U.S. officer conduct,” she argued, “falls within a familiar, not a ‘new,’ Bivens setting.

Justice Ginsburg explained that even if the setting could be characterized as “new,” the plaintiffs lacked recourse to alternative remedies (which remained a significant consideration under Abbasi’s guidelines), and no “special factors” counsel against a Bivens remedy. Justice Ginsburg found that neither U. S. foreign policy nor national security was in fact endangered by the litigation. The plaintiffs here, the dissent explained, targeted, not policy nor policymakers, but instead targeted the rogue actions of a rank-and-file law enforcement officer acting in violation of rules controlling his office. Moreover, the dissent maintained that concerns attending the application of U.S. law to conduct occurring abroad were not involved, because the plaintiffs sought the application of U. S. law to conduct occurring inside U.S. borders.

EMPLOYMENT

The Equal Pay Act’s fourth affirmative defense of “factors other than sex” comprises only job-related factors; prior rate of pay was not a “factor other than sex.”

Rizo v. Yovino, 2020 U.S. App. LEXIS 6345 (9th Cir. Feb. 27, 2020)

Facts: The Fresno County (“County”) Office of Education hired Aileen Rizo as a math consultant in October 2009. The County set its new employees’ salaries according to a pay schedule governed by Standard Operating Procedure 1440 (“SOP 1440”), which started with the employee’s prior wages and increased the wages by 5 percent. Her starting wage at the County was $62,133 for 196 days of work, plus an additional $600 for holding a master’s degree. In 2012, Rizo learned that a newly hired male math consultant’s starting pay was $79,088, significantly more than Rizo was paid after working three years for the County. Rizo realized that she was the only female math consultant at the County, and that all of her male colleagues were paid more than she was, even though she had more education and experience.

Rizo filed a complaint alleging in part that the County violated the Equal Pay Act (“EPA”), 29 U.S.C. section 206(d). In 1963, Congress enacted the EPA to combat pay disparities caused by sex discrimination, but it allowed employers to justify different pay for employees of the opposite sex based on three specifically enumerated affirmative defenses, or “any other factor other than sex.” Id.

The County moved for summary judgment. The County did not contest that Rizo was paid less than her male counterparts or that Rizo established a prima facie EPA violation. Instead, the County argued that Rizo’s pay was the result of SOP 1440, and that this pay policy, which was based solely on its employees’ prior pay, was a “factor other than sex” that defeated Rizo’s EPA claim. The District Court denied the County’s motion, explaining that the County’s “SOP 1440 necessarily and unavoidably conflict[ed] with” the EPA.

A three-judge panel of the Ninth Circuit Court of Appeals reversed, holding that the District Court was bound by Kouba v. Allstate Insurance Co., 691 F.2d 873 (9th Cir. 1982). Kouba held that the EPA “does not impose a strict prohibition against the use of prior salary,” so long as employers consider prior pay “reasonably” to advance “an acceptable business reason.” Id. at 876-77, 878. Subsequently, a majority of the active members of the Ninth Circuit voted to hear the County’s interlocutory appeal en banc. The en banc Court issued an opinion, but the United States Supreme Court vacated the en banc decision on a procedural issue, and remanded.

Held: The Ninth Circuit Court of Appeals took the case en banc to reconsider Kouba’s rule that prior pay could qualify as an affirmative defense to an EPA claim if the employer considered prior pay in combination with other factors and used it reasonably to effectuate a business policy.

The Ninth Circuit explained that “Congress’ purpose in enacting the Equal Pay Act was to remedy what was perceived to be a serious and endemic problem of employment discrimination in private industry.” Corning Glass Works v. Brennan, 417 U.S. 188, 195 (1974). The EPA was described as “a very simple piece of legislation” establishing that “equal work will be rewarded by equal wages.”[11]

The EPA provides: “No employer . . . shall discriminate . . . between employees on the basis of sex by paying wages to employees . . . at a rate less than the rate at which he pays wages to employees of the opposite sex . . . for equal work on jobs the performance of which requires equal skill, effort, and responsibility, and which are performed under similar working conditions . . . .” 29 U.S.C. section 206(d)(1). The statute identifies four exceptions to its equal-pay mandate: “except where such payment is made pursuant to (i) a seniority system; (ii) a merit system; (iii) a system which measures earnings by quantity or quality of production; or (iv) a differential based on any other factor other than sex . . . .” Id. (emphasis added). The Court explained that these four exceptions acted as affirmative defenses to an EPA claim. On appeal, the County contended that its policy of setting employees’ wages based on their prior pay was premised on a factor other than sex. Therefore, the County argued, its use of prior pay was a valid affirmative defense.

Considering the fourth exception, the Ninth Circuit agreed with other circuits that the scope of the “factor other than sex” affirmative defense was limited, and that “the ‘factor other than sex’ defense does not include literally any other factor . . . .” EEOC v. J.C. Penney Co., Inc., 843 F.2d 249, 253 (6th Cir. 1988). The Court explained that because the three enumerated exceptions were all job-related, and the elements of the “equal work” principle were job-related, Congress’ use of the phrase “any other factor other than sex” (emphasis added) supported the statutory interpretation that the fourth exception was also limited to job-related factors. The Court found that other rules of statutory construction, as well as the EPA’s history and purpose supported the view that an affirmative defense based on the fourth exception comprised only job-related factors.

The Ninth Circuit then held that prior pay did not qualify as a job-related factor that could defeat a prima facie Equal Pay Act claim. The Court explained that it did not presume that any particular employee’s prior wages were depressed as a result of sex discrimination. However, the Court stated, “the history of pervasive wage discrimination in the American workforce prevents prior pay from satisfying the employer’s burden to show that sex played no role in wage disparities between employees of the opposite sex. And allowing prior pay to serve as an affirmative defense would frustrate the EPA’s purpose as well as its language and structure by perpetuating sex-based wage disparities.” The Court concluded that setting wages based on prior pay risked perpetuating the history of sex-based wage discrimination that the EPA was designed to prevent. The Court also overruled Kouba.

Here, the Court applied the rule that only job-related factors qualified under the EPA’s fourth affirmative defense and that prior pay was not one of them, and found that Rizo’s prior wages did not qualify as any other factor other than sex.” Accordingly, the Ninth Circuit Court of Appeals affirmed the District Court’s order denying the County’s motion for summary judgment, and remanded for further proceedings.

 MISCELLANEOUS

When a person refuses to identify himself to an officer who is writing a citation to that person for an infraction offense, that refusal can be the basis for a finding that the person resisted, obstructed, or delayed an officer in violation of Penal Code section 148(a)(1).

People v. Knoedler, 44 Cal. App. 5th Supp. 1 (2019)[12]

Facts: On August 19, 2018, defendant Brent Knoedler was approached by Ranger Sarai Jimenez. Knoedler was holding an open can of beer near Beach and Main Streets in the City of Santa Cruz. Ranger Jimenez asked Knoedler for identification in order to issue him a citation for violating a local ordinance making it an infraction to possess open containers of alcoholic beverages in a public place. Knoedler offered to throw his alcoholic beverage away in a nearby garbage can. After repeated requests, Knoedler refused to provide any identification or tell his name to Ranger Jimenez.

Ranger Jimenez called for backup. Officer Denise Cockrum arrived on the scene. Knoedler refused to answer Officer Cockrum’s question as to how many alcoholic beverages he had consumed, and he continued to refuse to identify himself. Officer Cockrum explained that she needed Knoedler to identify himself “[s]o we know who we’re issuing, in this case, a ticket to.” Ranger Jimenez testified that Knoedler was unresponsive and would only state that he had no reason to cooperate because he was not going to drive a vehicle. Intending to arrest Knoedler, Officer Cockrum grabbed Knoedler’s arm. As Officer Cockrum attempted to restrain Knoedler, Knoedler broke free and hit the officer hard enough that the impact caused her body camera to be knocked off her person. A chase and struggle ensued. Knoedler was eventually detained by other responding officers.

A jury found Knoedler guilty of violating Penal Code section 148(a)(1) (resisting, obstructing, or delaying a peace officer). The Santa Cruz County Superior Court placed Knoedler on a 36-month conditional sentence, ordered him to serve 60 days in the county jail, and imposed $573.00 in fines and fees. Knoedler appealed.

Held: On appeal to the Appellate Division of the Santa Cruz County Superior Court, Knoedler claimed the trial court prejudicially erred when it instructed the jury that he could be convicted of a violation of Section 148(a)(1) by failing to identify himself. He contended that the modified version of CALCRIM No. 2656 given to the jury was an incorrect statement of the law, which violated his right to due process and a fair trial under the Sixth and Fourteenth Amendments to the United States Constitution.

The modified version of CALCRIM No. 2656 provided in pertinent part:

“The People allege that the defendant resisted, obstructed or delayed Officer Denise Cockrum by doing the following:

“1. Refusing to provide identification to Officer Cockrum.

“2. Refusing to put his hands behind his back.

“3. Fleeing from Officer Cockrum.

“You may not find the Defendant guilty unless you all agree that the People have proved that the Defendant committed at least one of the alleged acts of resisting, obstructing, or delaying a peace officer who was lawfully performing his or her duties, and you all agree on which act he committed.”

The Appellate Division first determined that the Knoedler was not precluded from raising this issue because his claim of instructional error affected his substantial rights, despite the People’s argument that Knoedler waived his claim of instructional error because of his trial counsel’s failure to object during the discussion regarding jury instructions.

Knoedler relied on People v. Quiroga (1993) 16 Cal.App.4th 961, which held that “a refusal to disclose personal identification following arrest for a misdemeanor or infraction cannot constitute a violation of Penal Code section 148.” (Id. at p. 970, italics added.) However, the Appellate Division noted that in this case the officer was not arresting defendant at the time that Knoedler refused to provide his identification or otherwise identify himself. Instead, the officer was attempting to write Knoedler a citation for a municipal code infraction. In Quiroga, the defendant’s failure to provide identification after his arrest did not delay or obstruct the arresting officer because “[t]he arrest had already been effected,” and the defendant had not yet been brought to the jail for booking. (Quiroga, supra, at p. 966.) The Quiroga court held that it was a violation of Section 148 when the defendant refused to provide identification at booking, due to “the public interest in discovering the identity of a suspect that might reasonably justify criminal sanction.” (Quiroga, supra, at p. 971.)

The Appellate Division explained that the public interest rationale identified in Quiroga applied to the issuance of a citation for an infraction violation. “Without any way to identify the person who is being cited,” the Appellate Division explained, “the police cannot perform their duties.” Quiroga noted that for infractions and misdemeanors, Penal Code section 853.5 governed the situation in which a person fails to provide identification. The Appellate Division explained that under Section 853.5, a person may be arrested—rather than simply cited and released—if “the arrestee refuses to sign a written promise, has no satisfactory identification, or refuses to provide a thumbprint or fingerprint.” (Section 853.5(a).) The Appellate Division observed that the fact that a person could be subject to a custodial arrest for failure to provide identification regarding a citation did not mean that such failure to provide identification would not delay or obstruct an officer in the performance of his or her duties. Quiroga did not apply here to support Knoedler’s argument because Quiroga considered only whether “refusal to disclose personal identification following arrest for a misdemeanor or infraction” could constitute a violation of Section 148. (Quiroga, supra, 16 Cal.App.4th at p. 970, italics added.)

The Appellate Division consequently held that when a person refuses to identify himself to an officer who is writing a citation to that person for an infraction offense, that refusal can be the basis for a finding that the person resisted, obstructed, or delayed an officer in violation of Penal Code section 148(a)(1). The Appellate Division found that the trial court did not err by instructing the jury that Knoedler’s refusal to identify himself could be found to constitute a violation of Section 148(a), and accordingly affirmed.

[1] See 34 U.S.C. sections 30301-30309 (2017); 28 C.F.R. sections 115.11-115.16.

[2] See Sepulveda v. Ramirez, 967 F.2d 1413, 1415-16 (9th Cir. 1992) (citing York v. Story, 324 F.2d 450 (9th Cir. 1963)). In York, the Ninth Circuit had relied upon the Fourteenth Amendment in reasoning that “the security of one’s privacy against arbitrary intrusion by the police is basic to a free society and therefore ‘implicit in the concept of ordered liberty’ under the due process clause.” Grummett v. Rushen, 779 F.2d 491, 494 (9th Cir. 1985) (quoting York, 234 F.2d at 455). The Ninth Circuit in York held that the plaintiff had stated a privacy claim under the Fourteenth Amendment because the Court “could not conceive of a more basic subject of privacy than the naked body.” Id. (citation omitted). The Court noted that “[t]he desire to shield one’s unclothed figure from [the] view of strangers, and particularly strangers of the opposite sex, is impelled by elementary self-respect and personal dignity.” Id. (internal quotation marks and citation omitted).

[3] Scott v. Harris, 550 U.S. 372, 378 (2007).

[4] People v. Tate, 49 Cal.4th 635, 683 (2010).

[5] 17 Cal.4th 229 (1998).

[6] See Davis v. Passman, 442 U. S. 228 (1979); Carlson v. Green, 446 U. S. 14 (1980).

[7] See, e.g., Jesner v. Arab Bank, PLC, 584 U. S. ___, ___, 138 S. Ct. 1386, 200 L. Ed. 2d 612 (2018).

[8] Correctional Services Corp. v. Malesko, 534 U. S. 61, 68 (2001).

[9] See Hernández v. Mesa, 582 U. S. ___, ___-___, 137 S. Ct. 2003, 198 L. Ed. 2d 625, 632 (2017) (per curiam).

[10] 582 U. S., at ___, 137 S. Ct. 1843, 198 L. Ed. 2d 290, at 308.

[11] S. Rep. No. 88-176, at 1 (1963); Equal Pay Act of 1963, S. Comm. on Labor, 88th Cong. 12 (1963) (statement of Sen. Clifford P. Case).

[12] Appellate Division, Superior Court of California, Santa Cruz County, No. 19AP00003.

CONSTITUTIONAL LAW

A. California charter cities are not exempt from compliance with Government Code section 7284.6, which prohibits state and local law enforcement from engaging in certain specifically identified acts related to immigration enforcement, because the section is constitutional as applied to charter cities.

City of Huntington Beach v. Becerra, 2020 Cal. App. LEXIS 23 (4th Dist. Jan. 10, 2020)

Facts: Under California law, cities are classified as either general law cities, which are organized under the general law of the State of California (Government Code section 34102) or charter cities, which are organized under a charter (Government Code section 34101). The City of Huntington Beach (the “City”) is a charter city.

Section 103 of the Huntington Beach Charter (the “Charter”) states: “The City shall have the power to make and enforce all laws and regulations in respect to municipal affairs, subject only to such restrictions and limitations as may be provided in this Charter or in the Constitution of the State of California.” Section 2.52.030 of the Huntington Beach Municipal Code states: “It shall be the duty of each and every member of the Police Department to enforce impartially all the laws and statutes of the United States and of the State of California and all of the ordinances of the City, within the limits of this City, and to perform such other and further duties as by statute and ordinance now existing or hereafter enacted, may be imposed upon them in their capacity as peace officers.” Section 2.24.050 of the Huntington Beach Municipal Code states: “The Police Chief shall perform such other acts as the laws of the state and ordinances of the Council may require.”

California Constitution, article XI, Section5

Under the home rule doctrine, “[c]harter cities are specifically authorized by our state Constitution to govern themselves, free of state legislative intrusion, as to the matters deemed municipal affairs.” (City of Vista, supra, 54 Cal.4th at p. 555.)

Article XI, section 5 of the California Constitution defines the scope of home rule powers of a charter city. Section 5(a)) sets out the general rule of municipal self-governance and provides: “It shall be competent in any city charter to provide that the city governed thereunder may make and enforce all ordinances and regulations in respect to municipal affairs, subject only to the restrictions and limitations provided in their several charters and in respect to other matters they shall be subject to general laws. City charters adopted pursuant to this Constitution…with respect to municipal affairs shall supersede all laws inconsistent therewith.”

“Whereas subdivision (a) of article XI, section 5 articulates the general principle of self-governance, subdivision (b) sets out a nonexclusive list of four ‘core’ categories that are, by definition, ‘municipal affairs.’” (Johnson v. Bradley (1992) 4 Cal.4th 389, 398, fn. omitted.) Section 5(b)^[1] provides in part: “It shall be competent in all city charters to provide, in addition to those provisions allowable by this Constitution, and by the laws of the State for: (1) the constitution, regulation, and government of the city police force […].”

The California Values Act

When enacting the CVA, the Legislature found “[i]mmigrants are valuable and essential members of the California community,” “[a] relationship of trust between California’s immigrant community and state and local agencies is central to the public safety of the people of California,” and “[t]his trust is threatened when state and local agencies are entangled with federal immigration enforcement.” (Government Code section 7284.2(a), (b) & (c).) As a result, the Legislature found, “immigrant community members fear approaching police when they are victims of, and witnesses to, crimes, seeking basic health services, or attending school, to the detriment of public safety and the well-being of all Californians.” (Section 7284.2(c).)

The Legislature further found that “[e]ntangling state and local agencies with federal immigration enforcement programs diverts already limited resources and blurs the lines of accountability between local, state, and federal governments.” (Section 7284.2(d).) The Legislature expressed concern that state and local participation in federal immigration enforcement could lead to the unconstitutional detention of California residents who were targeted based on race or ethnicity in violation of the Fourth Amendment to the United States Constitution and the Equal Protection Clause. (Section 7284.2(e).) The goal of the CVA, the Legislature declared, is “to ensure effective policing, to protect the safety, well-being, and constitutional rights of the people of California, and to direct the state’s limited resources to matters of greatest concern to state and local governments.” (Section 7284.2(f).)

The CVA implements its purposes by prohibiting state and local law enforcement from engaging in certain specifically identified acts related to immigration enforcement. Section 7284.6, at issue here, restricts the ability of local law enforcement agencies to inquire into immigration status, place individuals on an immigration hold, and use personnel or resources to participate in certain immigration enforcement activities.^[2]

However, the CVA makes clear that California law enforcement agencies are not prohibited from engaging in certain activities with federal authorities. California law enforcement agencies are not prohibited from investigating, enforcing, detaining upon reasonable suspicion of, or arresting a person for a violation of section 1326(a) of title 8 of the United States Code (reentry of removed aliens). (Section 7284.6(b)(1).) California law enforcement agencies are not prohibited from responding to a request from immigration authorities for information about a specific person’s criminal history if otherwise permitted by state law. (Section 7284.6(b)(2).) California law enforcement agencies may conduct enforcement or investigative duties associated with a joint law enforcement task force so long as the primary purpose of the task force is not immigration enforcement and the enforcement or investigative duties are primarily related to a violation of law unrelated to immigration enforcement. (Section 7284.6(b)(3).)

The CVA states that it “does not prohibit or restrict any government entity or official from sending to, or receiving from, federal immigration authorities, information regarding the citizenship or immigration status, lawful or unlawful, of [any] individual, or from requesting from federal immigration authorities immigration status information, lawful or unlawful, of any individual, or maintaining or exchanging that information with any other federal, state, or local government entity, pursuant to [federal immigration laws].” (Section 7284.6(e).)

The CVA imposes on the California Attorney General the task of preparing and publishing “model policies limiting assistance with immigration enforcement to the fullest extent possible consistent with federal and state law” at public schools, public libraries, public health facilities, shelters, and other facilities, “and ensuring that they remain safe and accessible to all California residents, regardless of immigration status.”^[3] The CVA also imposes restrictions on the Department of Corrections and Rehabilitation.

Procedural History

The City filed a petition for writ of mandamus and a complaint for declaratory relief to “invalidate the unconstitutional mandates of the [CVA] that impermissibly strip the City’s constitutionally protected Charter authority with respect to local ‘municipal affairs.’” The City alleged the CVA unconstitutionally violated the City’s authority to conduct municipal affairs constitutionally guaranteed under Section 5 by mandating how the City operates its police force. The City sought a mandate to command “that [the Attorney General] not enforce the [CVA] against the City and comply with Article XI, § 5 of the California Constitution.” The City also prayed for a declaration that the CVA was unconstitutional and preempted by article XI, section 5 of the California Constitution. The City argued Section 5 granted charter cities “supreme authority” over municipal affairs, which include operation of the City’s police force. The City argued the CVA is “an impermissible, un-Constitutional overreach, is void, and should be invalidated” because it intruded upon the City’s control of its police force. The Attorney General filed opposition, which included the CVA’s legislative history, declarations from law enforcement officials, and a declaration from a professor who had conducted studies pertinent to these issues.

A hearing was conducted on the City’s petition for writ of mandamus and complaint. The City narrowed the scope of relief sought by identifying Section 7284.6 as the “operative portion” of the CVA that the City sought to have invalidated.

The trial court granted the City’s petition and a peremptory writ of mandate was issued ordering the Attorney General to refrain from enforcing Section 7284.6 against the City. The court found: (1) the “constitution, regulation and government” of a police force is a “quintessential municipal affair under [Section] 5(a)”; (2) the “constitution, regulation and government” of a police force is “a municipal prerogative” protected by Section 5(b); and (3) “there is no ‘statewide concern’ justifying the state[‘]s regulation of a Charter City’s police force.” The Attorney General appealed.

Held: The California Fourth District Court of Appeal noted that home rule authority under Section 5 does not mean charter cities can never be subject to state laws that concern or regulate municipal affairs. “[A] charter city’s authority to enact legislation is not unlimited.” (Jauregui v. City of Palmdale (2014) 226 Cal.App.4th 781, 795.) The Court explained that the Legislature may legislate as to matters of statewide concern and, if the statute is not overbroad, then the conflicting charter city law “ceases to be a ‘municipal affair’ pro tanto and the Legislature is not prohibited by article XI, section 5(a), from addressing the statewide dimension by its own tailored enactments.” (California Fed. Savings, supra, 54 Cal.3d at p. 17.) “[G]eneral law prevails over local enactments of a chartered city, even in regard to matters which would otherwise be deemed to be strictly municipal affairs, where the subject matter of the general law is of statewide concern.” (People ex rel. Seal Beach Police Officers Assn. v. City of Seal Beach (1984) 36 Cal.3d 591, 600 (“Seal Beach”), quoting Professional Fire Fighters, Inc. v. City of Los Angeles (1963) 60 Cal.2d 276, 292; see Baggett v. Gates (1982) 32 Cal.3d 128, 136 [“‘As to matters which are of statewide concern, however, home rule charter cities remain subject to and controlled by applicable general state laws regardless of the provisions of their charters’”].)

The Fourth District explained that the California Supreme Court developed a four-part “analytical framework” to determine whether a state law unconstitutionally infringes the home rule authority of charter cities granted by article XI, section 5 of the California Constitution. (City of Vista, supra, 54 Cal.4th at p. 556; California Fed. Savings, supra, 54 Cal.3d at pp. 16–17.) First, the court determines whether the local law at issue regulates an activity that can be characterized as a municipal affair. (City of Vista, supra, at p. 556; California Fed. Savings, supra, at p. 16.) Second, the court determines whether there is an actual conflict between state law and the local law. (City of Vista, supra, at p. 556; California Fed. Savings, supra, at pp. 16–17.) If no conflict exists, the analysis is complete and there is no need to go to the next step. (California Fed. Savings, supra, at p. 16.) Third, the court decides whether the state law addresses a matter of “‘statewide concern.’” (City of Vista, supra, at p. 556; California Fed. Savings, supra, at p. 17.) Fourth, and finally, the court determines whether the state law is “‘reasonably related to … resolution’” of the identified statewide concern and is “‘narrowly tailored’ to avoid unnecessary interference in local governance.” (City of Vista, supra, at p. 556; California Fed. Savings, supra, at p. 17; see Marquez v. City of Long Beach (2019) 32 Cal.App.5th 552, 562–563; Jauregui, supra, 226 Cal.App.4th at pp. 795–796.)

Citing Baggett and other cases, the Supreme Court in People ex rel. Seal Beach Police Officers Assn. v. City of Seal Beach (1984) 36 Cal.3d 591, 600 (“Seal Beach”) expressly rejected the notion that municipal affairs identified in Section 5(b) can never be subject to state regulation.

The Fourth District explained that in Jauregui v. City of Palmdale (2014) 226 Cal.App.4th 781, the Second District Court of Appeal followed the reasoning of Seal Beach to conclude that provisions of the California Voting Rights Act of 2001 (Elec. Code, §§ 14025–14032) applied to the defendant charter city. And in Marquez v. City of Long Beach (2019) 32 Cal.App.5th 552, the Second District, after reviewing the relevant case law, held that “the Legislature may enact laws of broad general application that impact charter city compensation where the state law’s infringement on local authority is reasonably related to an important statewide concern.” (Id. at p. 567.)

The Fourth District here found that these four decisions—Baggett, Seal Beach, Jauregui, and Marquez—demonstrated that the four-part analytical framework of City of Vista and California Fed. Savings applied when a state law was challenged as infringing a municipal affair identified in Section 5(b). The Court concluded that “Section 5(b) does not create a special class of municipal affairs but identifies certain activities at least presumptively deemed to be municipal affairs under Section 5(a). A municipal affair identified in Section 5(b) is not immune from any and all state laws; rather, a city ordinance regulating an activity identified in Section 5(b) would by definition and without more be a municipal affair under the first part of the four-part analytical framework of City of Vista and California Fed. Savings.”

Part One: The Huntington Beach Charter and Municipal Code Provisions Regulate Municipal Affairs.

The Fourth District proceeded to apply the four-part analytical framework of City of Vista and California Fed. Savings to Section 7284.6. The first part determined whether the city ordinance at issue regulated an activity that can be characterized as a municipal affair. (City of Vista, supra, 54 Cal.4th at p. 556.) Section 103 of the Huntington Beach Charter provided the City the power to make and enforce all laws and regulations in respect to municipal affairs. Huntington Beach Municipal Code section 2.52.030, makes it “the duty of each and every member of the Police Department to enforce impartially all the laws and statutes of the United States and of the State of California and all of the ordinances of the City.” The City contended that both sections were unconstitutionally infringed by Section 7284.6 of the CVA.

The Court determined, based on its prior analysis of Section 5, that there was no doubt Huntington Beach Charter section 103 and Huntington Beach Municipal Code section 2.52.030 regulated activity that could be characterized as a municipal affair—the constitution, regulation, and government of the City police force. (See Section 5(b)(1).) The Court explained that Section 103 of the charter was broadly drafted to include all city functions, including operation of the police force. However, the Court denied the City’s contention that the CVA unconstitutionally infringed its right to compensate employees because the City never explained how the CVA affects employee compensation and never identified a charter provision or municipal code section at odds with the CVA on that matter.

Part Two: There Is an Actual Conflict Between Section 7284.6 and Huntington Beach Charter Section 103.

The second part of the analytical framework determined whether there was an actual conflict between Section 7284.6 and the invoked charter and municipal code provisions. (City of Vista, supra, 54 Cal.4th at p. 556.) The Court explained: “[A] court asked to resolve a putative conflict between a state statute and a charter city measure initially must satisfy itself that the case presents an actual conflict between the two.” (California Fed. Savings, supra, 54 Cal.3d at p. 16.)

The Court found a conflict between Section 7284.6 and the City charter’s section 103 because the Court determined that Section 103 conferred on the City a broad grant of authority over any and all legally cognizable municipal affairs, including authority over “the constitution, regulation, and government of the police force.” (Section 5(b)(1).) By prohibiting state and local law enforcement from engaging in certain activities related to immigration enforcement, Section 7284.6 directly restricted the regulation of the City police force. The Court stated that Section 103 would grant the City authority, for example, to regulate its police force by having its officers inquire into an arrestee’s immigration status or participate in arrests based on civil immigration warrants. Subdivisions (a)(1)(A) and (a)(1)(E) of section 7284.6 prohibit such activity.

Part Three: The CVA Addresses a Matter of Statewide Concern.

Because the Court found an actual conflict between Section 7284.6 and Section 103, the Court turned to the third part of the analytical framework, whether the CVA, and Section 7284.6 in particular, addressed a matter of statewide concern. (City of Vista, supra, 54 Cal.4th at p. 556.) The Court noted that any doubt as to whether a matter was of statewide or strictly local concern must be resolved in favor of “‘the legislative authority of the state.’” (California Fed. Savings, supra, 54 Cal.3d at p. 24.)

The Court observed that the Legislature made substantial and detailed findings to support its enactment of the CVA, as noted above. According great weight to these legislative findings, the Fourth District concluded as a matter of law that the findings identified statewide concerns that justified binding charter cities to the dictates of Section 7284.6. The Court stated that it was “virtually self-evident that public safety is a matter of statewide concern, explaining that the State’s historic police powers provided “the authority to structure and influence the relationship between state law enforcement and the community it serves” (United States v. California (E.D. Cal. 2018) 314 F.Supp.3d 1077, 1108, affd. in part & revd. in part United States v. California, supra, 921 F.3d 865), and pointing to California’s lengthy Penal Code and what the Court described as a “vast” state prison system.

The Court also determined that uniform application of the CVA throughout the highly urbanized and integrated state was necessary to ensure it adequately addresses these statewide concerns. The Court explained that “[i]f every city and county were able to opt out of the statutory regime simply by passing a local ordinance, the statewide goal[s] of [public safety, better law enforcement, and protection of constitutional rights] would surely be frustrated.” (Fiscal v. City and County of San Francisco (2008) 158 Cal.App.4th 895, 919.)

Although the City submitted a declaration from its highly experienced Chief of Police, Robert Handy, who severely criticized the CVA, the Court explained that this evidence was outweighed by the Legislature’s thorough and detailed findings, the evidence cited in the legislative history of the CVA and other evidence submitted by the Attorney General.

Part Four: The CVA Is Reasonably Related to the Statewide Concerns.

The Fourth District arrived at the fourth part of the analytical framework to determine “whether the law is ‘reasonably related to … resolution’ of [the statewide] concern [citation] and ‘narrowly tailored’ to avoid unnecessary interference in local governance.” (City of Vista, supra, 54 Cal.4th at p. 556.) The Court found that the CVA, in particular Section 7284.6, was reasonably related to the statewide concerns of effective policing, public health and safety, prudent use of public resources, and protection of constitutional rights. The Court explained that by limiting or prohibiting certain law enforcement activities, such as inquiring into immigration status and placing a person on an immigration hold, that eroded trust between immigrants and the police, Section 7284.6 thereby encouraged both immigrants and nonimmigrants to report crimes, work with law enforcement, and serve as witnesses. The Court found that these restrictions helped ensure that public law enforcement resources were directed at fighting state-law crimes, which the Court deemed to present a greater threat to public safety in the state.

The Fourth District found that the CVA was narrowly tailored and did not intrude unnecessarily upon municipal interests. The Court also determined that other CVA restrictions on local law enforcement activity pertaining to immigration enforcement were themselves limited by Government Code section 7282.5.

Based on its application of the four-part analytical framework set forth in City of Vista and California Fed. Savings, the Fourth District Court of Appeal concluded that Section 7284.6 did not unconstitutionally infringe a charter city’s rights under Section 5(b) to constitute, regulate, and govern a city police force or to compensate city employees. Accordingly, the Court reversed and remanded with directions to deny the petition for writ of mandamus and enter judgment in favor of the Attorney General.  Accordingly, the Court reversed and remanded with directions to deny the City’s petition.

B. All of the elements of a Section 1983 sexual assault claim are established if a prisoner proved that a sexual assault occurred; inmates subjected to sexual assault during search alone violates Eighth Amendment, regardless of prison guards “need to use force” during patdown searches.

Bearchild v. Cobban, 2020 U.S. App. LEXIS 1521 (9th Cir. Jan. 16, 2020)

Facts: In November 2013, Dewayne Bearchild, an inmate at the Montana State Prison (“MSP”), was walking with other inmates from their housing unit to another part of the prison when guards stopped him and another inmate to conduct pat-down searches of both men. Bearchild alleged Sergeant Larry Pasha’s converted the five minute pat-down into a sexual assault, and that other guards who observed the search laughed.

Bearchild sued several prison staff members pursuant to 42 U.S.C. section 1983, alleging that his Eighth Amendment rights were violated when he was sexually assaulted during the course of a pat-down search. At trial, Pasha vigorously disputed Bearchild’s characterization of the search and denied that it lasted five minutes and that it transgressed the boundaries of a permissible pat-down. The trial lasted two days during which the District Court held a conference to discuss proposed jury instructions.

Instruction No. 12 was a detailed statement of the substantive law pertaining to an Eighth Amendment excessive force claim, relying almost verbatim on Ninth Circuit Model Civil Jury Instruction 9.26. It provided, in relevant part:

Under the Eighth Amendment, a convicted prisoner has the right to be free from “cruel and unusual punishments.” In order to prove the defendant deprived the plaintiff of this Eighth Amendment right, the plaintiff must prove the following elements by a preponderance of the evidence:

1. the defendant used excessive and unnecessary force under all of the circumstances;
2. the defendant acted maliciously and sadistically for the purpose of causing harm, and not in a good faith effort to maintain or restore discipline; and
3. the act of the defendant caused harm to the plaintiff.

Instruction No. 12 went on:

In determining whether these three elements have been met in this case, consider the following factors:

1) the extent of the injury suffered;

2) the need to use force;

3) the relationship between the need to use force and the amount of force used;

4) any threat reasonably perceived by the defendant; and

5) any efforts made to temper the severity of a forceful response, such as, if feasible, providing a prior warning or giving an order to comply[.]

In considering these factors, you should give deference to prison officials in the adoption and execution of policies and practices that in their judgment are needed to preserve discipline and to maintain internal security in a prison.

The District Court dismissed all of the defendants except Pasha. After the trial court denied Pasha summary judgment on his qualified immunity defense, Bearchild tried his case to a six-member jury, pro se. The jury returned a verdict in Pasha’s favor. Bearchild appealed, alleging in part that jury instruction inaccurately explained the substantive elements of his Eighth Amendment claim.

Held: The Ninth Circuit Court of Appeals examined Bearchild’s challenge to Instruction No. 12. The Court explained that prisoner Eighth Amendment challenges generally fall into three broad categories. One type of claim asserts that prison staff used excessive force against an inmate. See Hudson v. McMillian, 503 U.S. 1, 5-6 (1992). The Court explained that Bearchild pleaded a sexual assault claim and the Circuit had consistently placed prisoner sexual assault claims within the same legal framework as excessive force claims. See Wood v. Beauclair, 692 F.3d 1041, 1051 (9th Cir. 2012); Schwenk v. Hartford, 204 F.3d 1187, 1197 (9th Cir. 2000). Here, Bearchild asserted that Pasha abused his position of authority by converting a routine pat-down search into a humiliating and abusive sexual assault.

The Court recognized that there was no model jury instruction for Eighth Amendment sexual assault, and the Court took the opportunity to address the Circuit’s law governing this type of claim. The Court held that a prisoner presents a viable Eighth Amendment sexual assault claim where he or she proves that a prison staff member, acting under color of law and without legitimate penological justification, touched the prisoner in a sexual manner or otherwise engaged in sexual conduct for the staff member’s own sexual gratification, or for the purpose of humiliating, degrading, or demeaning the prisoner. The Court held that this definition recognized that there are occasions when legitimate penological objectives within a prison setting require invasive searches, and that the definition also accounted for the “significant deference courts owe to prison staff, who work in challenging institutional settings with unique security concerns.”

Applying this definition, the Ninth Circuit held that jury instruction No. 12, which set out the substantive law of Bearchild’s Eighth Amendment claim, and which relied almost verbatim on Ninth Circuit Model Civil Jury Instruction 9.26, misstated the elements necessary to establish liability for an Eighth Amendment violation arising from sexual assault. The Court explained that Ninth Circuit case law dictated that all of the elements of a Section 1983 sexual assault claim were established if a prisoner proved that a sexual assault occurred. The Court observed that the jury was instructed that Bearchild was required to prove that any force exercised was both “excessive and unnecessary,” but the jury was not told that any act constituting sexual assault was by definition both excessive and unnecessary. Moreover, Instruction No. 12’s direction to consider the “need to use force” and the “relationship between the need to use force and the amount of force used,” also likely confused the jury because it was unaccompanied by an explanation that sexual assault does not require violent physical force, or indeed, any force.

The Court further held that it was impossible to determine whether the jury would have reached the same result had it been properly instructed. The Ninth Circuit Court of Appeals therefore reversed the District Court’s judgment and remanded for a new trial with appropriate jury instructions on the substantive law applicable to Bearchild’s claim.

Dissenting in part, Judge Callahan stated that the District Court’s use of the Ninth Circuit’s model jury instruction for Eighth Amendment excessive force claims, if error, was not plain error warranting a new trial, particularly in light of the District Court’s additional instruction defining “sexual abuse” in a manner well-tailored to the facts of the case.

C. Applying procedural deference required under federal death penalty law, Ninth Circuit holds that the California Supreme Court had a reasonable basis to reject plaintiff’s challenge to the validity of his Miranda waiver on the basis of mental incapability and coercion.

Cook v. Kernan, 2020 U.S. App. LEXIS 1757 (9th Cir. Mar. 27, 2019)

Facts: In June 1992, eighteen-year-old Walter Joseph Cook was arrested for three murders that occurred over a four month period in 1992 in East Palo Alto, where Cook was a local dealer of crack cocaine. At the local jail, he was interviewed by East Palo Alto Police Sergeant Gregory Eatmon and Inspector Bruce Sabin of the San Mateo District Attorney’s Office. The interview lasted approximately seven hours, from around 7 p.m. that night to around 2 a.m. the next morning.

At the start of the interview, Sabin read Cook his rights under Miranda v. Arizona.[4] After Sabin asked if he understood, Cook responded, “Yeah.” Sabin then asked, “Okay. Do you have any questions about that? That’s a yes or no,” to which Cook responded, “No.” The investigators then proceeded to question Cook about the murders. During the initial few hours of his videotaped questioning, Cook generally seemed calm and coherent, although he displayed slight confusion in his demeanor and responses at times. Cook denied involvement in murder at first.

After about two hours, the investigators changed their approach to more direct verbal confrontation. They told Cook, “[E]verything you been giving us up till now has been bullshit,” and that they had multiple witnesses, fingerprint evidence, and shell casings all pinning Cook to the murder. The investigators told Cook that it was now time for Cook tell the truth. Cook was reticent in his responses, expressed concern for his family’s safety, and began to cry as he replied. Then in response to a question about why he went to therapy as a child, Cook suddenly began sobbing loudly and spoke about his father’s physical abuse of his mother. He became increasingly emotional. The investigators took a break so Cook could calm down and took him back to his cell.

The interview resumed about 30 minutes later. Sabin again reminded Cook about his Miranda rights, and Cook reconfirmed that he understood them, and that he was willing to talk. Cook abruptly confessed to one of the murders.

A jury convicted Cook of three counts of first-degree murder, along with a special circumstance of multiple murders under California law, and sentenced him to death. In August 2006, the California Supreme Court issued its opinion on direct appeal and affirmed Cook’s convictions and death sentence in full.[5]

After his state habeas proceeding over a decade later, Cook’s sentence was reduced to life without the possibility of parole on the ground that he was intellectually disabled within the meaning of Atkins v. Virginia, 536 U.S. 304 (2002). Cook subsequently sought federal habeas relief from his conviction on multiple grounds. The District Court denied his habeas petition but granted a certificate of appealability as to four issues. The Ninth Circuit Court of Appeals addressed one of these here: whether the state’s reliance on Cook’s taped confession resulted in a prejudicial violation of his constitutional rights.

Held: Cook asserted that his statements to police were unlawfully obtained in two ways: that he was unable to understand his Miranda rights from the outset of his interrogation and thus did not knowingly and intelligently waive them, and that his confessions were coerced based on the totality of the circumstances as established by the existing record. The California Supreme Court had summarily denied this claim “on the merits” when it had affirmed Cook’s convictions and sentence.

The Ninth Circuit Court of Appeals explained that in reviewing the California Supreme Court’s summary denial of Cook’s claim, the Ninth Circuit must determine: (1) “what arguments or theories supported or . . . could have supported . . . the state court’s decision”; and (2) “whether it is possible fairminded jurists could disagree that those arguments or theories are inconsistent with the holding in a prior decision of [the Supreme] Court.” Harrington v. Richter, 562 U.S. 86, 102 (2011).

The Ninth Circuit explained that Cook’s claim was subject to review under the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), 28 U.S.C. section 2254(d). Section 2254(d) requires “highly deferential” review of state court adjudications, “demand[ing] that state-court decisions be given the benefit of the doubt.” Woodford v. Visciotti, 537 U.S. 19 (2002) (per curiam) (quoting Lindh v. Murphy, 521 U.S. 320, 333 n.7 (1997)).

Applying AEDPA deference, the Court held that based on the facts that Cook was repeatedly warned of his Miranda rights, expressly acknowledged the warnings, and offered coherent and knowing answers to the officers’ questions, the California Supreme Court had a reasonable basis to reject Cook’s challenge to the validity of his Miranda waiver.

Cook also argued that the evidence in the existing record established coercion, highlighting expert opinions that his statements to police were not voluntary based on his mental capabilities at the time. The Court held the California Supreme Court had a reasonable basis because Cook failed to demonstrate how the conclusion that his confession was voluntary under the totality of the circumstances was “inconsistent with the holding in a prior decision of the [United States] Supreme Court.”

The Ninth Circuit accordingly affirmed the District Court’s denial of Cook’s 28 U.S.C. section 2254 habeas corpus petition.[6]

Dissenting, Judge Murguia disagreed with the majority’s conclusion that the California Supreme Court could have reasonably denied habeas relief on the basis that Cook (1) knowingly and intelligently waived his Miranda rights; and (2) suffered no prejudice from the improper admission of his unlawfully obtained confession and other incriminating statements.

D. Officer who shot a privately owned dog that posed no objective threat to the officer or others not entitled to qualified immunity because the right was clearly established based on general constitutional principles or a consensus of persuasive authority.

Ray v. Roane, 2020 U.S. App. LEXIS 1885 (9^th Cir.  Jan. 22, 2020)

Facts: In September 2017, Officer Michael Roane drove to the property of Tina Ray to assist with an arrest warrant that was being served on Ray for domestic abuse. When Roane arrived on Ray’s property, four other officers were already present and parked in the driveway. Ray’s dog—a 150-pound German Shepard named Jax—was secured by a zip-lead attached to two trees that allowed the animal limited movement within a “play area” of the yard. Rather than park in the driveway like the other officers, Roane parked his truck within the dog’s “play area,” prompting the other officers on scene to shout and gesture toward Roane, indicating that he should “[w]ait” and “[l]et [Ray] get her dog.” Roane exited his vehicle and started walking toward the house.

According to Ray’s complaint, the events proceeded as follows. As Roane emerged from his vehicle, Jax started barking at and approaching Roane. Roane backed away from the dog and drew his firearm in response, while Ray ran to the zip-lead and began shouting Jax’s name. “In a short moment,” Jax reached the end of the zip-lead and “could not get any closer” to Roane. Roane observed that the dog could not reach him, and further observed that Ray was now holding onto Jax’s fully-extended lead and continuing to call Jax’s name. Roane therefore stopped backing up. Roane then took a step forward, positioning himself over Jax, and fired his weapon into the dog’s head. The dog died from the wound.

Ray brought a claim under 42 U.S.C. section 1983, alleging that her Fourth Amendment rights were violated when Roane shot and killed her dog when it was in Ray’s yard, tethered, and incapable of reaching or harming Roane. In her complaint, Ray asserted several claims for relief against Roane, including unlawful seizure of Jax in violation of the Fourth Amendment. Roane moved to dismiss the entire action against him and answered the complaint. The District Court concluded Roane’s actions had been reasonable under the totality of the circumstances and he would be entitled to qualified immunity. Accordingly, the District Court dismissed the entire action with prejudice. Ray appealed the dismissal.

Held: The Court of Appeal explained as an initial matter that in reviewing a motion to dismiss for failure to state a claim, the Court must accept as true all of the factual allegations contained in the complaint and draw all reasonable inferences in favor of the plaintiff.

Turning to the matter at hand, the Court explained that to determine whether a complaint should survive a qualified immunity-based motion to dismiss, the Court followed the two-prong inquiry set forth by the United States Supreme Court, analyzing (1) whether a constitutional violation occurred and (2) whether the right violated was clearly established. See Pearson v. Callahan, 555 U.S. 223, 236 (2009); Saucier v. Katz, 533 U.S. 194, 200 (2001); Melgar v. Greene, 593 F.3d 348, 353 (4th Cir. 2010). A court may consider either prong of the qualified immunity analysis first. Sims v. Labowitz, 885 F.3d 254, 260 (4th Cir. 2018). On appeal, Ray argued the District Court erred in analyzing both prongs of the qualified immunity analysis.

The Ninth Circuit considered the first prong, the presence of a constitutional violation. The Court first noted that it was well-settled that privately owned dogs are “effects” under the Fourth Amendment, and that the shooting and killing of such a dog constitutes a “seizure.” Altman v. City of High Point, N.C., 330 F.3d 194, 203-05 (4th Cir. 2003). Thus, the shooting of Ray’s dog by Officer Roane was only constitutional if Roane’s actions were reasonable under the Fourth Amendment on the facts provided here.

The Court noted that Roane stopped backing away from Jax when the dog reached the end of the zip-lead, and then took a step toward the dog before firing his weapon. From this, the Court inferred that Roane observed that the dog could no longer reach him, and, thus, could not have held a reasonable belief that the dog posed an imminent threat. Taking these factual allegations as true and drawing these reasonable inferences in Ray’s favor, the Court concluded that Roane’s seizure of Jax was unreasonable because Jax no longer posed any threat to Roane. Accordingly, the Ninth Circuit concluded the District Court erred in holding that the complaint failed to allege a violation of Ray’s Fourth Amendment rights.

The Court then addressed the “clearly established” second prong of the qualified immunity inquiry. The Court explained that, despite his alleged conduct that violated the Fourth Amendment, Roane was still entitled to qualified immunity unless the Court concluded that a reasonable officer in Roane’s position would have understood that his conduct was unlawful at the time of the shooting.

Viewing all facts in the complaint and inferences arising therefrom in Ray’s favor as the standard of review required, the Court had already determined that Roane shot Jax at a time when he could not have held a reasonable belief that the dog posed a threat to himself or others. Based on this conclusion, the Court also held that a reasonable police officer would have understood that killing Jax under such circumstances would constitute an unreasonable seizure of Ray’s property under the Fourth Amendment.

The Court explained that the unlawfulness of Roane’s alleged actions was established by the general principles espoused in Altman. In Altman, the Ninth Circuit had held that privately owned dogs are protected under the Fourth Amendment, and further established that the reasonableness of the seizure of a dog depended on whether the governmental interest in safety outweighs the private interest in a particular case. 330 F.3d at 203-05. The Court found here that based on these broader principles alone, it would have been “manifestly apparent” to a reasonable officer in Roane’s position that shooting a privately owned dog, in the absence of any safety rationale at all, was unreasonable.[7]

The Court also observed that the consensus of the sister circuits made clear that this principle was clearly established by September 2017. The Ninth Circuit agreed with the D.C. Circuit’s observation in 2016, before Roane’s alleged conduct here, that “[e]very circuit that has considered the issue . . . ha[s] invariably concluded that ‘the use of deadly force against a household pet is reasonable only if the pet poses an immediate danger and the use of force is unavoidable.’“ Robinson v. Pezzat, 818 F.3d 1, 7 (D.C. Cir. 2016) (citation omitted).[8]

The Ninth Circuit Court of Appeals thus concluded that Ray’s complaint plausibly stated a claim for an unconstitutional seizure of Ray’s property for which Roane was not entitled to qualified immunity. The Court accordingly reversed and remand for further proceedings.

E. An electronic search condition is not unconstitutionally overbroad as applied to minor if the nature of minor’s crimes is directly related to using electronic devices.

In re Q.R., 2020 Cal. App. LEXIS 63 (6th Dist. Jan. 24, 2020)

Facts: Q.R., a minor, recorded photographs and video on his cellular phone of consensual sexual activity between himself and Jane Doe, both under 18 years old. He later extorted money from Doe by threatening to disclose the recordings to other students at their high school. Q.R. was placed on juvenile probation after admitting to felony possession of child pornography. Police officers obtained a warrant to search his cellphone. Q.R. used a password-based application called KeepSafe on his phone to securely store videos and photographs, and he provided the password to police. The officers discovered incriminating text messages, videos and nude photographs of Doe, and Q.R. was arrested. He admitted to two counts: possession or control of matter depicting a person under 18 engaging in sexual conduct, and extortion of property counts. Q.R. was declared a ward of the juvenile court and was placed on juvenile probation in the custody of his parents.

At the disposition hearing, the juvenile court imposed a probation condition requiring him to submit all electronic devices under his control to warrantless search by the probation department and to provide passwords necessary to access information on those devices.

The Sixth District affirmed the disposition order. The California Supreme Court granted review and transferred the matter back to the Sixth District with directions to vacate its decision and reconsider the cause in light of In re Ricardo P. (2019) 7 Cal.5th 1113.

Held: The California Sixth District Court of Appeal explained that juvenile courts have broad discretion to fashion probation conditions, and may impose any reasonable condition that is fitting and proper to the end that justice may be done and the reformation and rehabilitation of the ward enhanced. (In re Sheena K. (2007) 40 Cal.4th 875, 889.) Juvenile probation conditions may be broader than those imposed on adult offenders “because juveniles are deemed to be more in need of guidance and supervision than adults, and because a minor’s constitutional rights are more circumscribed.”[9] “A probation condition that imposes limitations on a person’s constitutional rights must closely tailor those limitations to the purpose of the condition to avoid being invalidated as unconstitutionally overbroad.” (Sheena K., supra, 40 Cal.4th at p. 890.)

Q.R. contended that the electronic search condition was unconstitutionally overbroad and that that the reasoning of Ricardo P. should apply. The Court stated that Q.R. essentially argued that the burden of the condition was not narrowly tailored to its purpose “because the condition is not limited in any way to the types of data that may be searched.”

The search condition specifically required Q.R. to “[s]ubmit all electronic devices under [his] control to a search of any text messages, voicemail messages, call logs, photographs, email accounts and social media accounts, with or without a warrant, at any time of the day or night, and provide the probation or peace officer with any passwords necessary to access the information specified.”

The Court emphasized that Q.R. used an electronic device to commit both crimes he admitted. He stored the illegal photographs and videos on his cellular phone, and he used that phone to send text messages demanding money while implicitly threatening to share the “pics and videos” with others if Jane Doe did not comply. The Court thus concluded that access to Q.R.’s electronic devices was critical to monitor his progress on probation and to ensure that he was not continuing to engage in the sort of criminal conduct that led to him being declared a ward of the court. Moreover, the need for robust access was particularly critical given that Q.R. previously stored illegal content in a password-protected application. Given the direct relationship between Q.R.’s offenses and his use of an electronic device, the Court found the search condition appropriately tailored.

The Court rejected Q.R.’s contention that the condition was overbroad because it did not define specific types of “electronic devices” that probation officers were allowed to search. The Court explained that by allowing the search of other devices, the condition ensured that Q.R. was neither storing illegal images nor attempting to extort money by the use of any electronic device. Otherwise, he could attempt to circumvent the condition by using an unlisted device for inappropriate storage or communication.

The Court also rejected Q.R.’s argument that Ricardo P. applied to the case here because the Court found Ricardo P. distinguishable; the offense Ricardo P. committed did not involve the use of an electronic device, whereas an electronic device was integral to Q.R.’s adjudication.

Accordingly, the Court affirmed.

 PUBLIC RECORDS

Officer-related records in the possession of the California Department of Justice are subject to disclosure, regardless of whether such records concern peace officers employed by the department or by another state or local agency, and no matter which agency created the records.

Becerra v. Superior Court, 2020 Cal. App. LEXIS 78 (1st Dist. Jan. 29, 2020)

Facts: Xavier Becerra is the Attorney General of the State of California and the chief law officer of the State. The California Department of Justice is a state agency that employs sworn peace officers and possesses certain records relating to the officers that it employs and records related to officers who are employed by other state and local law enforcement agencies.

In January 2019, the First Amendment Coalition requested from the Department all records within its possession subject to disclosure under amended Section 832.7. Specifically, it asked for “records relating to a report, investigation or finding . . . of any of the following: (1) An incident involving the discharge of a firearm at a person by a peace officer or custodial officer; [¶] (2) An incident in which the use of force by a peace officer or custodial officer against a person resulting in death or in great bodily injury; and/or [¶] (3) An incident in which a sustained finding was made by any law enforcement agency or oversight agency that a peace officer or custodial officer engaged in sexual assault involving a member of the public.” It sought records for incidents that occurred in 2016, 2017, and 2018.

In February 2019, pursuant to the CPRA and Section 832.7, media organization KQED requested records from Attorney General Becerra and the California Department of Justice (collectively, the “Department”). Specifically, they requested “[r]ecords from Jan. 1, 2014 to Dec. 31, 2018 of sustained findings that a peace officer, including those employed by the Ca. Dept. of Justice, committed sexual assault or dishonesty-related misconduct.” KQED also sought “[r]ecords from Jan. 1, 2014 to present relating to the report, investigation, or findings of incidents in which the use of force by a peace officer or custodial officer against a person resulted in death, or in great bodily injury.”

The Department partially denied the requests of First Amendment Coalition and KQED (collectively, “real parties”), explaining that “[t]o the extent that the Attorney General has obtained records from other state and local law enforcement agencies, the Attorney General is not the agency that ‘maintains’ those documents. A requester may properly seek disclosure from the employing agency, which not only maintains the records, but will be best situated to assess any applicable exceptions to the disclosure requirement and any statutorily required redactions concerning sensitive and private information. Further, to the extent that the Attorney General has obtained such records in relation to investigations or proceedings that the Attorney General is conducting, the disclosure provisions in section 832.7 do not apply to the Attorney General, under section 832.7, subdivision (a).”

In March 2019, real parties jointly petitioned for a writ of mandate to compel the Department’s compliance with their CPRA requests, including those “records that were created by or involve another state or local agency” and “records that concern the Attorney General’s own investigations.” In its answer to the petition, the Department admitted that it possessed “certain records sought by [real parties], likely totaling many thousands of such records if not more” and that it “created some but not all of those records.” The Department again claimed that neither Section 832.7 nor the CPRA required or authorized the disclosure of records it obtained from other state or local law enforcement agencies and further asserted that such records could be requested directly from those agencies.

In July 2019, the trial court granted real parties’ writ petition. The court ordered the Department to produce “all requested records except those records or parts thereof that this court determines may be lawfully withheld or redacted.” The Department filed a petition for a writ of mandate seeking to overturn the trial court’s order.

Held: Enacted in 1968, the California Public Records Act (“CPRA”; Government Code section 6250 et seq.) grants public access to public records held by state and local agencies. Modeled after the federal Freedom of Information Act,^[10] the CPRA was enacted for the purpose of increasing freedom of information by giving members of the public access to records in the possession of state and local agencies. The Legislature declared that such “‘access to information concerning the conduct of the people’s business is a fundamental and necessary right of every person in this state.’” (Los Angeles County Bd. of Supervisors v. Superior Court (2016) 2 Cal.5th 282, 290 (citing Section 6250).)

While the CPRA must be “broadly construed” because its statutory scheme “furthers the people’s right of access” (Cal. Const., art. 1, section 3(b)(2)), the act does not confer an absolute right of access. As part of the CPRA, the Legislature included a provision declaring it was “mindful of the right of individuals to privacy.”^[11] Thus, judicial decisions interpreting the CPRA try to balance the public right to access to information, the government’s need, or lack of need, to preserve confidentiality, and the individual’s right to privacy. (See Copley Press, Inc. v. Superior Court (2006) 39 Cal.4th 1272, 1282 (“Copley Press”).)

The CPRA balances the dual concerns for privacy and disclosure by providing for various exemptions that permit public agencies to refuse disclosure of certain public records.^[12] These exemptions are generally designed to protect the privacy of persons whose data or documents come into governmental possession.^[13] Law enforcement investigatory files were, until recently, categorically exempted from the CPRA’s general requirement of disclosure. (Government Code section 6254(f).)

In 1978, the Legislature enacted Penal Code sections 832.7 and 832.8 to mandate confidentiality of peace officer personnel records. In 2018, the Governor signed Senate Bill No. 1421 (“SB 1421”), which amended section 832.7.^[14] Under SB 1421, Section 832.7 kept the provision that “personnel records of peace officers and custodial officers and records maintained by any state or local agency pursuant to Section 832.5, or information obtained from these records, are confidential and shall not be disclosed” in any criminal or civil proceeding except pursuant to discovery under certain portions of the Evidence Code. (Section 832.7(a).)

As amended, however, Section 832.7(a) now provides that the confidentiality of officer personnel records is subject to a newly added subdivision (b) (hereafter Section 832.7(b)), which states in relevant part: “Notwithstanding subdivision (a) [of section 832.7], subdivision (f) of Section 6254 of the Government Code,^[15] or any other law, the following peace officer or custodial officer personnel records and records maintained by any state or local agency shall not be confidential and shall be made available for public inspection pursuant to the California Public Records Act (Chapter 3.5 (commencing with Section 6250) of Division 7 of Title 1 of the Government Code)” (Section 832.7(b)(1); italics added), namely, records “relating to the report, investigation, or findings” of an incident falling into any of the following three categories: (1) an incident in which an officer discharged a firearm at a person or used force against a person resulting in death or great bodily injury;^[16] (2) “an incident in which a sustained finding was made by any law enforcement agency or oversight agency” that an officer “engaged in sexual assault involving a member of the public”;^[17] and (3) “an incident in which a sustained finding was made by any law enforcement agency or oversight agency of dishonesty by a peace officer or custodial officer directly relating to the reporting, investigation, or prosecution of a crime, or directly relating to the reporting of, or investigation of misconduct by, another peace officer or custodial officer, including, but not limited to, any sustained finding of perjury, false statements, filing false reports, destruction, falsifying, or concealing of evidence.”^[18] The First District Court referred to these three categories of records collectively as “officer-related records” throughout its opinion.

In sum, Section 832.7, as amended, specifies that the officer-related records pertaining to such incidents and findings are not confidential, and subject to disclosure pursuant to the CPRA.

The California First District Court of Appeal first considered whether Penal Code section 832.7 contemplated disclosure of officer-related records in the Department’s possession if such records concerned officers who were not employed by the Department or if such records were not created by the Department.

The Court determined that Section 832.7’s statutory language, whether considered on its own or in conjunction with the CPRA, was clear in contemplating disclosure of the records requested by real parties here. The Court concluded that standing on its own, Section 832.7’s statutory phrase “peace officer . . . personnel records and records maintained by any state or local agency” (italics added) made clear that officer-related records in the Department’s possession were subject to disclosure, regardless whether such records involved peace officers employed by the Department or by another state or local agency (“non-Department officers”), and no matter which agency created them. The Court found this interpretation strengthened if Section 832.7 was considered in conjunction with the CPRA, which explicitly states that, except as provided by the CPRA, a member of the public has the right to inspect “any writing containing information relating to the conduct of the public’s business . . . retained by” a state or local agency.^[19]

The Department contended that Section 832.7 “plainly requires an officer’s employing agency—but no other agency—to disclose records.” The Department argued that the records made nonconfidential by subdivision (b) of Section 832.7 were regulated by subdivision (a), which explicitly shields “records maintained by any state or local agency pursuant to section 832.5,” which in turn requires employing agencies to establish procedures for investigating public complaints against its officers and to maintain records of those complaints and any related investigation. (Sections 832.5, 832.7(a); italics added.) Thus, according to the Department, Section 832.7(b)’s dictate that “records maintained by any state or local agency shall not be confidential” was limited to records maintained pursuant to Section 832.5, i.e., those in the possession of an officer’s employing agency.

The First District disagreed, pointing out first that Section 832.7(b), on its face, explicitly states its provisions are not restricted by subdivision (a). (Section 832.7(b)(1) [“Notwithstanding subdivision (a)”].) The Court added that had if the Legislature had wanted to limit its disclosure amendments to records maintained by an officer’s employing agency or to records created by a public agency, the Legislature could have easily could have repeated in subdivision (b) the same “pursuant to section 832.5” qualification it used in subdivision (a), or have used the phrase “and employee-related records maintained by any state or local agency,” or the like. However, the Legislature had not done so. The Court also found the Department’s construction to be at odds with the CPRA’s broad language defining “public records” as “any writing” containing information relating to the public’s business that is “retained by” a state or local agency.^[20]

The First District held that these legislative aims were best advanced by a construction that authorized disclosure of all responsive officer-related records in the possession of a state agency, regardless whether they pertained to officers employed by the agency and no matter which agency created them. The Court also explained that this interpretation of the CPRA and Section 832.7 not only promoted the purposes reflected in the statutory language and legislative history, it harmonized with the constitutional principle that the people have a right to access information concerning the conduct of the people’s business and that restrictions on this right are narrowly construed. (Cal. Const., art. I, § 3, subd. (b)(1)-(2).) The Court stated that its construction also aligned with case law rejecting the notion that a record’s location, rather than its content, determines its confidentiality.

The CPRA Catchall Exemption

The Court then considered whether officer-related records that are subject to disclosure under Section 832.7 may nonetheless be withheld pursuant to the catchall exemption set forth in the CPRA. This Court noted that this exemption, codified in Government Code section 6255(a)), permits a public agency to withhold a public record under the CPRA if the agency demonstrates “that on the facts of the particular case the public interest served by not disclosing the record clearly outweighs the public interest served by disclosure of the record.” (Section 6255(a).) The Department contended that requests for Section 832.7 records may be subject to this CPRA exemption, while real parties argued that Section 832.7’s newer and more detailed provisions for redacting or withholding records must be deemed to prevail over the more general CPRA exemption.

The Court looked again to the statutory language, specifically that of Section 832.7(b)(1), which states in part: “Notwithstanding subdivision (a), subdivision (f) of Section 6254 of the Government Code, or any other law, the following peace officer or custodial officer personnel records and records maintained by any state or local agency shall not be confidential and shall be made available for public inspection pursuant to the California Public Records Act (Chapter 3.5 (commencing with Section 6250) of Division 7 of Title 1 of the Government Code) . . . .”

The Court found nothing in the statutory text suggesting that the CRPA as a whole was displaced by Section 832.7 because the Court determined that the section’s beginning phrase “[n]otwithstanding . . . any other law” could not reasonably be read to do away with the entire CRPA. The First District explained that “only those provisions of law that conflict with” [S]ection 832.7(b)—”not . . . every provision of law”^[21]—are inapplicable. The Court decided that the Legislature would not expressly mention one specific CPRA exemption (i.e. Section 6254(f)) while contemplating the clause as encompassing other CPRA exemptions. The Court explained that had the Legislature intended for Section 832.7 to override the CPRA catchall exemption, it could have explicitly said so, as it did for Government Code section 6254(f) and in other statutes.

Because both the language and legislative history of the Section 832.7 amendments were silent as to the nullification of any CPRA exemption—besides the Section 6254(f) exemption, the Court concluded that the CPRA catchall exemption may otherwise apply to requests for Section 832.7 officer-related records.

The Balance of Interests

The remaining consideration for the First District was whether the Department had sufficiently demonstrated that the records sought by real parties could be withheld under the CPRA catchall exemption. The Department’s main argument for withholding records concerning non-Department officers^[22] was the “onerous burden of reviewing, redacting, and disclosing records regarding other agencies’ officers, which involves “potentially millions of records.” In the Department’s view, this burden outweighed the public interest in obtaining those records from the Department rather than from the other state and local agencies that employed those officers.

The Court explained that although the CPRA catchall exemption may be invoked based on the concern that segregating nonexempt from exempt information would be unduly burdensome (American Civil Liberties Union Foundation v. Superior Court (2017) 3 Cal.5th 1032, 1043 (“ACLU Foundation”); State Bd. of Equalization v. Superior Court (1992) 10 Cal.App.4th 1177, 1188, the withholding of responsive records was not permitted unless the Department demonstrated “‘a clear overbalance on the side of confidentiality.’“ (ACLU Foundation, supra, at p. 1043.)

The First District noted that the trial court assumed the CPRA catchall exemption was available but determined the Department’s showing did not justify nondisclosure. The First District also concluded that the Department had not demonstrated “‘a clear overbalance on the side of confidentiality.

In support of its view, the Department offered the two-page declaration of Michael Newman, Senior Assistant Attorney General of the Department’s Civil Rights Enforcement Section. However, the Court found that Newman’s declaration was lacking in meaningful detail. For example, the Court noted Newman provided no information regarding the records on four of the six matters he raised or the potential burden arising from them. The Court perceived “a disconnect” between the hundreds of thousands of records suggested by Newman and the “potentially millions of records” that the Department’s petition claimed as its burden for review. Moreover, the Court stated that there was a “paucity of information regarding the Department’s costs of complying with real parties’ request,” notable in light of certain SB 1421 legislative materials reflecting that the Department had reported to the Legislature estimated “costs of $263,000 in 2018-19, $437,000 in 2019-20, and $422,000 in 2020-21 and ongoing” in order to “implement the new requirements, handle an increase in [CPRA] requests, and potential increased litigation.”

Thus, the Court concluded the declaration did not sufficiently demonstrate that public fiscal and administrative concerns over the expense and inconvenience of responding to real parties’ records request clearly outweighed the public interest in disclosure. The CPRA catchall exception thus did not apply to the records at issue here. Accordingly, the First District denied the Department’s petition for writ of mandate.

 PUBLIC EMPLOYMENT

A. Employee who was terminated during his extended probation was not entitled to an administrative hearing before Civil Service Commission under Service Rule 18.03 because he was not a permanent employee.

 Amezcua v. L.A. Cnty. Civil Serv. Com., 2019 Cal. App. LEXIS 1318 (2nd Dist. Dec. 18, 2019)

Facts: On January 25, 2015, the Los Angeles County Sheriff’s Department (the “Department”) hired David Amezcua as a deputy sheriff generalist. The Department placed Amezcua on a 12-month period of probation.

Generally, a candidate selected for appointment to a position with Los Angeles County (the “County”) must complete a probationary period before obtaining status as a permanent employee, according to rule 12.01(A) of the Los Angeles County Civil Service Rules (“Civil Service Rules”).^[23] “The period of probation shall be no less than six nor more than 12 calendar months from the date of appointment to a permanent position, as established by the director of personnel for each class.” (Rule 12.02(A).)

If “an employee is absent from duty during a probationary period, the appointing power may calculate the probationary period on the basis of actual service exclusive of the time away.” (Rule 12.02(B).) “‘Actual service’ means time engaged in the performance of the duties of a position or positions including absences with pay.” (Rule 2.01.) “If a change in the probationary period is made, the employee shall be notified prior to the end of the original probationary period.” (Rule 12.02(B).)

An employee who is still on probation may be terminated “without a hearing and without judicially cognizable good cause.” (Phillips v. Civil Service Com. (4th Dist. 1987) 192 Cal.App.3d 996, 1000; accord, Hill v. California State University, San Diego (4th Dist. 1987) 193 Cal.App.3d 1081, 1090.) A permanent employee, however, is entitled to a hearing before any such termination. (Rule 18.03.)

In July 2015, Amezcua became the subject of an administrative investigation when a female inmate at the detention center where Amezcua was assigned complained that Amezcua had asked her inappropriate personal questions and expressed a desire to have a relationship with her after her release. On or about July 24, 2015, the Department placed Amezcua on relieved of duty status.^[24] Amezcua was told that he had to turn in his gun and his badge, go home, and stay at home from 8:30 a.m. to 5:00 p.m. from Monday through Friday.

On or about August 6, 2015, the Department sent Amezcua a letter notifying him that his probationary period was being extended pursuant to rule 12.02: “In accordance with Civil Service Rule 12.02, your probationary period as a Deputy Sheriff Generalist … has been extended. This extension is due to your absence from work as a result of being Relieved of Duty. [¶] Upon your return to full duty status, your unit will notify Personnel Administration and your probationary period will be recalculated.” Amezcua signed a receipt of service, certifying that he had received the letter extending his probation.

On July 18, 2016, the Department terminated Amezcua. Although the administrative investigation was deemed unresolved, the Department concluded that Amezcua had a “propensity to engage in inappropriate communication with inmates, lack of attention to safety, unethical conduct, and poor judgment.”

Amezcua’s subsequent appeal of the probationary discharge was denied in December 2016 by the County Department of Human Resources. Amezcua’s appeal of his termination to with the Los Angeles County Civil Service Commission (the “Commission”) was also denied in December 2016. His amended appeal was also denied in February 2017.

Amezcua filed a petition for writ of mandate, contending that: The Department improperly extended his probation; he became a permanent employee 12 months after his hire date; and as a permanent employee, he was entitled to a hearing before discharge. Amezcua argued that the Department violated the Civil Service Rules by extending his probationary period; that he was never “absent from duty” within the meaning of rule 12.02(B), and that his firing as a probationary employee was improper as a matter of law because he became a permanent employee on January 24, 2016, that is, 12 months from the date of his hire.

The trial court denied Amezcua’s petition. The court first determined that “there should be no dispute that [Amezcua] was absent from duty when he was on ‘relieved of duty’ status.” The court also concluded that Amezcua was not performing “actual service as defined in [rule] 2.01 because he was not ‘engaged in the performance of the duties of a [deputy sheriff].’” Pursuant to rule 12.02, the Department was thus entitled to release Amezcua during his extended period of probation. Finally, the court found that Amezcua, as a probationary employee, was not entitled to a hearing before the Commission under rule 18.03.

Held: The Second District Court of Appeal observed that “[t]he construction of county ordinances and rules is subject to the same standards applied to the judicial review of statutory enactments.” (Department of Health Services v. Civil Service Com. (2nd Dist. 1993) 17 Cal.App.4th 487, 494-5; accord, Dobbins v. San Diego County Civil Service Com. (4th Dist. 1999) 75 Cal.App.4th 125, 129.)

Amezcua raised a number of challenges to the trial court’s conclusion that he was a probationary employee at the time of his firing. First, he argued that under the Civil Service Rules, the Department was not authorized “to unilaterally extend [his] probationary period.” Based on the plain reading of rule 12.02(B), the Court rejected this argument, because rule 12.02(B) permitted the “appointing power,” in this case, the Department, to “calculate the probationary period on the basis of actual service exclusive of the time away.” Thus, the Court found no prohibition against the Department acting unilaterally if the other requirements of rule 12.02(B) were satisfied.

 Amezcua also argued that because he was paid while on relieved of duty status, the Department was precluded from excluding this period of time from its calculation of his 12-month period of probation under rule 12.02(B). According to Amezcua, because “actual service” was defined as “time engaged in the performance of the duties of a position or positions including absences with pay” (italics added), only absences without pay may be excluded from the calculation of the probationary period. The Court disagreed, explaining that if the drafters of the Civil Service Rules intended to limit the ability of the appointing power to calculate the probationary period based on whether an employee was absent with or without pay, they could have so stated; however, they did not. The Court maintained that rule 12.02 instead expressly permitted the Department to exclude from the calculation of the probationary period those times when an employee was “absent from duty,” and made no reference as to whether that absence was paid or unpaid.

Moreover, the Court explained that even if it accepted Amezcua’s interpretation of “actual service” as “including all absences with pay”—and the Court observed that the term “all” did not appear in rule 2.01—the Court would not correspondingly accept Amezcua’s interpretation of rule 12.02(B) as limiting the calculation of the probationary period to “the basis of actual service” only. The Court found that Amezcua’s construction would render the term “exclusive of the time away,” which immediately followed, as mere surplusage. (Department of Health Services v. Civil Service Com., supra, 17 Cal.App.4th at p. 495, fn. 6.)

Amezcua summarily contended that “[a]lthough the Department relieved [him] of duty, it did not cause him to be ‘absent from duty,’ or impose any ‘time away,’ as those phrases are used in [rules 12.01 and 2.01.]” The Court construed this argument to mean that during the time he was on relieved of duty status, Amezcua was engaged in the duties of a deputy sheriff and thus not absent from or away from duty.

The Court observed that Amezcua failed to identify any duties he was required to perform during the period he was on Relieved of Duty status, and the record did not reflect that while Amezcua was assigned home he was obligated to engage in any task, conduct, service, or function of a deputy sheriff or any other employee. Thus, the Court found there was ample evidence to support the trial court’s conclusion that Amezcua was “absent from duty” and had “time away” from duty, such that the Department was permitted to extend Amezcua’s period of probation pursuant to rule 12.02(B).^[25] Accordingly, the Second District concluded that the trial court did not err in denying Amezcua’s petition for writ of mandate. Because Amezcua was a probationary employee at the time of his firing, the Court correspondingly rejected Amezcua’s related argument that he was entitled to a hearing before the Commission pursuant to rule 18.03. The Second District Court of Appeal accordingly affirmed.

B. Officer who was routinely denied backup assistance during enforcement stops and otherwise harassed and disadvantaged due to his sexual orientation faced working conditions so intolerable that a reasonable employee would have been forced to resign.

Brome v. Cal. Highway Patrol, 2020 Cal. App. LEXIS 71 (1st Dist. Jan. 28, 2020)

Facts: Jay Brome began his employment at the California Highway Patrol (“CHP”) in 1996. During his nearly 20-year career, other officers subjected Brome, who was openly gay, to derogatory, homophobic comments; singled him out for pranks; repeatedly defaced his mailbox; and refused to provide him with backup assistance during enforcement stops in the field. As a result, Brome feared for his life during enforcement stops, experienced headaches, muscle pain, stomach issues, anxiety and stress, and became suicidal by early 2015 when he worked at CHP’s Solano County office. In January 2015, he went on medical leave and filed a workers’ compensation claim based on work-related stress.

Shortly after Brome took leave, his captain sent him a letter expressing concern regarding his allegations of harassment and a hostile work environment. The captain understood that Brome was alleging workplace harassment and that he had not only a workers’ compensation claim but also a potential discrimination complaint.

Brome’s workers’ compensation claim was resolved in his favor in October 2015. He took industrial disability retirement on February 2016, ending his employment with the CHP.

On September 15, 2016, Brome filed an administrative complaint with the Department of Fair Employment and Housing. He sued the CHP the next day asserting that, during his career as a law enforcement officer, he suffered harassment and discrimination because of his sexual orientation in violation of the California Fair Employment and Housing Act (Government Code section 12900 et seq.).

The CHP sought summary judgment, contending Brome’s claims were untimely because he did not file his administrative complaint within one year of the challenged actions, as required under former Government Code section 12960, subdivision (d); the challenged actions were prior to the start of his medical leave in January 2015, more than a year before his September 2016 administrative complaint filing.

Brome argued he was entitled to equitable tolling, which allows the suspension or extension of a limitations period under certain circumstances. (See McDonald v. Antelope Valley Community College Dist. (2008) 45 Cal.4th 88, 99–100.) He argued that the filing of his January 2015 workers’ compensation claim should stop the clock on his one- one-year filing deadline during the pendency of his compensation claim. Brome also relied on the continuing violation doctrine, under which an employer may be liable for acts occurring before the limitations period if they are sufficiently linked to unlawful conduct that occurred within the period. (See Richards v. CH2M Hill, Inc. (2001) 26 Cal.4th 798, 802.) He also asserted that his complaint was timely based on a constructive discharge theory because his working conditions were so intolerable that they effectively forced him to take disability retirement in February 2016. (See Turner v. Anheuser-Busch, Inc. (1994) 7 Cal.4th 1238, 1246–51.)

The trial court granted summary judgment to the CHP, holding that Brome’s claims were filed after the statute of limitations expired and a reasonable jury could not have concluded they were timely based on an exception to the deadline. The trial court also rejected Brome’s constructive discharge argument on the merits, holding that he failed to establish intolerable working conditions. Brome appealed the grant of summary judgment.

Held: On appeal, the California First District Court of Appeal first considered Brome’s assertion that the filing of his workers’ compensation claim could equitably toll the one-year deadline for filing his discrimination claim with the Department of Fair Employment and Housing. The Court agreed, concluding that a reasonable jury could find that a workers’ compensation claim for a work-related stress injury based on the same circumstances provided timely notice of the discrimination claims. The Court noted that in responding to his workers’ compensation claim, Brome’s superior officers were well aware of his discrimination concerns.

The Court also found that equitable tolling would not be prejudicial given the availability of the workers’ compensation evidence, and a delay in filing did not preclude a finding of good faith and reasonable conduct. The Court explained that a workers’ compensation investigation concerning the source of Brome’s work-related stress should have preserved evidence concerning his discrimination claims. The Court noted that the record reflected that after Brome filed his workers’ compensation claim, the CHP had “lots of conversations back during that time period” about whether the disability Brome asserted was “because of work-related issues or other related issues.” Brome’s captain was aware of Brome’s belief that he was treated differently based on his sexual orientation and understood he had a potential discrimination claim.

The continuing violation doctrine “allows liability for unlawful employer conduct occurring outside the statute of limitations if it is sufficiently connected to unlawful conduct within the limitations period.” (Richards, supra, 26 Cal.4th at p. 802.) The Court found that evidence of the harassment, hostile environment, and discrimination conduct could establish a continuing violation because the discriminatory acts occurred with reasonable frequency and superior officers had not refused assistance. The Court determined that Brome had presented evidence sufficient for a reasonable jury to find that similar kinds of actionable conduct occurred prior to and during the limitations period.

Brome also argued that the trial court erred in concluding Brome was unable to establish that he was constructively discharged as a matter of law. The First District explained that to establish constructive discharge, an employee must show that the employee’s working conditions were so intolerable or aggravated that a reasonable employee would be forced to resign and that the employer either created or knowingly permitted those conditions, such that a reasonable employer would realize that a reasonable employee in such circumstances would resign. (Turner, supra, 7 Cal.4th at pp. 1251, 1246–1250.) To be intolerable, working conditions must be “unusually ‘aggravated’ or amount to a ‘continuous pattern.’” (Turner, 7 Cal.4th at pp. 1246–1247; see also id. at p. 1246 [“The conditions giving rise to the resignation must be sufficiently extraordinary and egregious”]). Each individual incident need not be sufficient standing alone to force a resignation; rather, the accumulation of discriminatory treatment over time can amount to intolerable working conditions. (See, e.g., Thompson v. Tracor Flight Systems., Inc. (2001) 86 Cal.App.4th 1156, 1171–1172 [“even though individual incidents in a campaign of harassment do not constitute justification for an employee to resign, the overall campaign of harassment can constitute such a justification”]; Valdez v. City of Los Angeles (1991) 231 Cal.App.3d 1043, 1056 [employee can establish constructive discharge by showing a “‘continuous pattern of discriminatory treatment over a period of years.’”].)

The Court concluded that Brome had raised a triable issue as to whether his working conditions were so intolerable that a reasonable employee would have resigned. Unlike the other officers at the Solano office, Brome was routinely forced to respond to high-risk enforcement and accident scenes on his own, placing his life in danger. These denials of backup assistance happened daily and were at least in some instances due to his sexual orientation.

 The CHP contended that the working conditions could not have been intolerable if Brome endured them for years. However, the Court pointed out that Brome transferred to the Solano office because he was hoping to get away from the discrimination and harassment he suffered in his previous post, and once there he sought resolution by repeatedly complaining to his superiors. Because of his working conditions, Brome suffered from anxiety, trauma, and sleep disturbances, and eventually became suicidal. Viewed as a whole, the record could support a conclusion that Brome’s working conditions became objectively intolerable over time and would have forced a reasonable employee to resign. (See Valdez, supra, 231 Cal.App.3d at p. 1058 [“The length of time the plaintiff remained on the job is relevant in determining the severity of the impact of the working conditions but does not as a matter of law prevent the plaintiff from proceeding” on a constructive discharge claim]; see also Turner, supra, 7 Cal.4th at p. 1254.)

Moreover, the Court stated that although a jury could find that the CHP tried to address the problem, there was also evidence to support a finding that the CHP knowingly permitted the intolerable conditions and should have known that a reasonable employee in Brome’s position would resign.

Accordingly, the First District reversed the trial court’s judgment, and remanded with instructions to deny the CHP’s motion for summary judgment as to Brome’s California Fair Employment and Housing Act claims.

[1] The full text of Section(b) states: “It shall be competent in all city charters to provide, in addition to those provisions allowable by this Constitution, and by the laws of the State for: (1) the constitution, regulation, and government of the city police force (2) subgovernment in all or part of a city (3) conduct of city elections and (4) plenary authority is hereby granted, subject only to the restrictions of this article, to provide therein or by amendment thereto, the manner in which, the method by which, the times at which, and the terms for which the several municipal officers and employees whose compensation is paid by the city shall be elected or appointed, and for their removal, and for their compensation, and for the number of deputies, clerks and other employees that each shall have, and for the compensation, method of appointment, qualifications, tenure of office and removal of such deputies, clerks and other employees.”

[2] Specifically, Section 7284.6 prohibits state and local law enforcement from:

(1) inquiring into a person’s immigration status (Section 7284.6 (a)(1)(A));

(2) detaining a person on the basis of a “hold” request from immigration authorities (Section 7284.6 (a)(1)(B));

(3) providing information regarding a person’s release date or responding to requests for notification by providing release dates unless that information is available to the public (Section 7284.6 (a)(1)(C));

(4) providing personal information, such as address and employment status, to immigration authorities, unless that information is available to the public (Section 7284.6 (a)(1)(D));

(5) making or intentionally participating in arrests based on civil immigration warrants (Section 7284.6 (a)(1)(E)); (6) assisting immigration authorities in warrantless searches near the United States border (Section 7284.6 (a)(1)(F));

(7) performing the functions of an immigration agent (Section 7284.6 (a)(1)(G));

(8) placing local law enforcement officers under the supervision of a federal agency for purposes of immigration enforcement (Section 7284.6 (a)(2));

(9) using immigration officers as interpreters for law enforcement matters under the jurisdiction of state or local law enforcement agencies (Section 7284.6 (a)(3));

(10) transferring a person to immigration authorities unless authorized by a judicial warrant or judicial probable cause determination (Section 7284.6 (a)(4));

(11) providing office space exclusively dedicated for immigration agents within a county or city law enforcement facility (Section 7284.6 (a)(5)); and

(12) contracting with the federal government for use of California law enforcement facilities to house persons as federal detainees for purposes of civil immigration custody (Section 7284.6 (a)(6)).

[3] Government Code section 7284.8(a).

[4] 384 U.S. 436.

[5] People v. Cook, 39 Cal. 4th 566 (Cal. 2006).

[6] In a concurrently filed memorandum disposition (Cook v. Kernan, 2020 U.S. App. LEXIS 2038 (9th Cir. Jan. 21, 2020)), the Court addressed remaining claims. This included a rejection of Cook’s ineffective assistance of counsel claim based upon alleged Miranda violations and coercion of his statements.

[7] Owens, 372 F.3d at 279.

[8] See also Brown v. Battle Creek Police Dep’t, 844 F.3d 556, 568 (6th Cir. 2016) (“[A] police officer’s use of deadly force against a dog . . . is reasonable under the Fourth Amendment when . . . the dog poses an imminent threat to the officer’s safety.”); Carroll v. Cty. of Monroe, 712 F.3d 649, 652 (2d Cir. 2013) (noting that the reasonableness of officers’ conduct is contingent on there being “a genuine threat to officer safety”); Viilo v. Eyre, 547 F.3d 707, 710 (7th Cir. 2008) (“[C]ommon sense . . . counsel[s] that the use of deadly force against a household pet is reasonable only if the pet poses an immediate danger[.]”); San Jose Charter of the Hells Angels Motorcycle Club v. City of San Jose, 402 F.3d 962, 977-78 (9th Cir. 2005) (holding that “any reasonable officer [would know] that the Fourth Amendment forbids the killing of a person’s dog, or the destruction of a person’s property, when that destruction is unnecessary”); Brown v. Muhlenberg Twp., 269 F.3d 205, 210-11 (3d Cir. 2001) (“[T]he state may [not], consistent with the Fourth Amendment, destroy a pet when it poses no immediate danger[.]”).

[9] In re Antonio R., 78 Cal.App.4th 937, 941 (4th Dist. 2000).

[10] 5 U.S.C. section 552 et seq.

[11] Section 6250.

[12] Government Code sections 6254-6255.

[13] Copley Press, supra, 39 Cal.4th at p. 1282.

[14] Section 832.7, as amended by Stats. 2018, ch. 988, section 2, eff. Jan. 1, 2019.

[15] Government Code section 6254(f) is a CPRA provision that exempts disclosure of “[r]ecords of complaints to, or investigations conducted by, or records of intelligence information or security procedures of, the office of the Attorney General and the Department of Justice, the Office of Emergency Services and any state or local police agency, or any investigatory or security files compiled by any other state or local police agency, or any investigatory or security files compiled by any other state or local agency for correctional, law enforcement, or licensing purposes.”

[16] Section 832.7(b)(1)(A)(i), (ii).

[17] Section 832.7(b)(1)(B)(i)-(iii).

[18] Section 832.7(b)(1)(C)).

[19] Government Code section 6252(e).

[20] Government Code sections 6252(e), (a).

[21] Arias v. Superior Court, 46 Cal.4th 969, 983 (2009).

[22] This term refers to peace officers employed, not by the Department itself, but by another state or local agency.

[23] L.A. County Code, tit. 5, appen. 1.

[24] Pursuant to the Department’s manual of policies and procedures, “[a]n employee may be relieved of duty for disciplinary reasons … .” An employee on relieved of duty status will have his or her badge, identification card, and County-issued firearm taken away. Further, an employee on relieved of duty status may be assigned either to his or her residence or to a relieved-of-duty position. Reasons to assign a relieved of duty employee to his or her residence include if the employee could be discharged.

[25] The record showed that the only “task” Amezcua was required to perform was to stay at home for particular hours, but the Court stated that the obligation to stay at home, on its own, cannot be characterized as one of the duties of Amezcua’s position as a deputy sheriff.

CONSTITUTIONAL LAW

A. Defendant’s electronic device search condition was invalid under People v. Lent because it imposed a significant privacy burden and there was no information connecting it with preventing future criminality.

People v. Bryant, 42 Cal. App. 5th 839 (2019)

Facts: On a night in August 2014, Pasadena Police Department officers responded to a call for service outside a housing complex where a group of individuals were drinking and refusing to leave the area. Clydell Bryant and his girlfriend were smoking marijuana in a parked car in the area. Bryant was in the passenger seat and his girlfriend sat in the driver’s seat. A Pasadena police officer approached the driver’s side of the car and smelled a strong odor of marijuana coming from the car. Bryant and his Bryant’s girlfriend complied when the officer asked them to step out of the car so he could check for marijuana. The officer searched the car and found a semiautomatic handgun under the front passenger seat.

A jury convicted Bryant of carrying a concealed firearm in a vehicle, and found that the firearm was loaded and not registered to him. The court imposed a two-year sentence, part of which was to be served under mandatory supervision. During the mandatory supervision period, the court required Bryant to submit to searches of text messages, e-mails, and photographs on any cellular phone or other electronic device in his possession or residence. Bryant appealed the electronic search condition requirement.

In an opinion filed in April 2017, the California Second District Court of Appeal agreed with Bryant that the condition was invalid under People v. Lent (1975) 15 Cal.3d 481 and struck the condition. The state Supreme Court granted Bryant’s petition for review and deferred consideration of the case pending its decision in another case. After it decided that other case in In re Ricardo P. (2019) 7 Cal.5th 1113, the Supreme Court transferred the current case to the Second District with directions to vacate its April 2017 opinion and reconsider in light of Ricardo P.

Held: The Second District Court of Appeal explained that under Lent, a court abuses its discretion when it imposes a term or condition that, among other things, requires or forbids conduct which is not reasonably related to future criminality. (Lent, supra, at p. 486.) “A probation condition that imposes substantially greater burdens on the probationer than the circumstances warrant is not a ‘reasonable’ one.” (Ricardo P. at p. 1128.) In the case of electronic search conditions, the salient burden on a probationer is the burden imposed on his or her privacy interest. (Ricardo P. at pp. 1122–1123.) The Attorney General asserted that the electronic search condition was reasonably related to preventing future criminality under Lent. Bryant contended that the requirement was invalid and unconstitutionally overbroad.

The Second District observed that in Ricardo P., the Supreme Court found an electronic search condition imposed on a juvenile was invalid because it “impose[d] a very heavy burden on privacy with a very limited justification.” (Ricardo P., supra, 7 Cal.5th at pp. 1119–1120, 1124.) More particularly, the condition “imposed a sweeping probation condition requiring [the probationer] to submit all of his electronic devices and passwords to search at any time” even though “nothing in the record suggests that [the probationer] has ever used an electronic device or social media in connection with criminal conduct.” (Id. at pp. 1122–1123.)

Here, the Second District found that the electronic search condition was similarly sweeping and burdensome. The right to search extended to all of Bryant’s text messages, e-mails, and photos on any device in his possession or residence, with the potential to reveal “vast amounts of personal information unrelated to defendant’s criminal conduct or his potential for future criminality.”[1] Moreover, because the search condition “lack[ed] any temporal limitations,” probation officers could “access digital information that long predated the imposition of” Bryant’s sentence. (Ricardo P., supra, 7 Cal.5th at p. 1127.) Thus, the electronic search condition similarly “impose[d] a very heavy burden on privacy.” (Id. at p. 1124.)

The Court observed that although Bryant had been smoking marijuana in a car, there was nothing to suggest that his phone must be monitored, for example, for drug sales. The Court also observed that the Supreme Court in Ricardo P. court referred to the Second District’s April 2017 opinion in the case to implicitly disapprove of the search condition imposed on Bryant. The Second District Court therefore concluded that the electronic search condition was invalid under Lent.[2] The Court accordingly struck the condition, and otherwise affirmed.

B. In domestic violence case, Ninth Circuit determines that the state-created danger doctrine may apply when officer comments convey to abuser that abuse may continue.

Martinez v. City of Clovis, 2019 U.S. App. LEXIS 35989 (9th Cir. Dec. 4, 2019)

Facts: Desiree Martinez and Kyle Pennington (a City of Clovis Police Department officer) started living together in 2013 with Martinez’s daughter, Destiny, in Clovis. Pennington first physically and sexually abused Martinez in April 2013, while the two were in Dublin, California. On May 2, 2013, Pennington became physically abusive and, after hiding, Martinez called 911. Clovis Police Officers Kristina Hershberger responded. Pennington warned Martinez not to say anything. Hershberger then spoke with Martinez outside of Pennington’s immediate presence, but Martinez maintained that Pennington was still within eye and earshot. Hershberger testified that Martinez had told her about Pennington’s physical abuse in Dublin. Martinez testified that she also told the officer that Pennington had pushed her down the stairs that evening. Martinez claimed that Hershberger asked her to “hold on just a second” and moved away. Martinez was intimidated by the way Pennington stared at her so she moved to him to ease his concern. Hershberger returned and asked Martinez to repeat her statements about what had happened in Dublin. Martinez testified that “[she] was scared because [Hershberger] had said Dublin and she had said it in front of [Pennington], so [Martinez] told her, ‘Nothing, nothing happened,’” Martinez heard Pennington clear his throat, which she said meant he was angry, so she feigned ignorance replying to Hershberger.

Hershberger had received domestic violence training and was aware that domestic violence victims “might tend to recant accusations of violence” out of fear of reprisal. She believed that Martinez faced potential risk if she stayed with Pennington that night. However, Hershberger did not arrest Pennington. She did not advise Martinez of her right to make a citizen’s arrest, her right to obtain a restraining order, or the possibility of staying at a shelter. She did not provide Martinez with Clovis’s pamphlet for victims of domestic violence. Instead, she recommended that Martinez be interviewed again.

Hershberger and Pennington had both worked with the Clovis Police Department (“Clovis PD”) for about nine years. Pennington testified that after Martinez went back inside the house, Hershberger spoke with him, asking him “what [he] was doing dating a girl like Desiree Martinez …because [Hershberger] didn’t think that [Martinez] was necessarily a good fit for me.” That night, Pennington physically abused Martinez, called her a “leaky faucet” and asked her what she had told Hershberger and whether she was trying to get him in trouble.

On the night of June 3, 2013, Pennington physically and sexually abused Martinez. Martinez stated that he choked, beat, suffocated, and sexually assaulted her. A neighbor called 911. Sanger Police Department Officer Angela Yambupah, Sergeant Fred Sanders, and two other officers responded and found Pennington and Martinez outside of the house. Yambupah had received domestic violence training. She noticed that Martinez had injuries consistent with those of a victim of physical abuse, which Yambupah photographed. Martinez testified that when Yambupah spoke with her, Pennington and Martinez were not separated by more than seven feet, within earshot. She whispered to Yambupah that Pennington injured her, that Pennington had tried to smother her with a pillow, and that he had attempted to choke her. Yambupah believed that she had probable cause to arrest Pennington, that his arrest was mandatory under state law, and that Pennington had access to weapons as a police officer. Yambupah also learned from Martinez that Pennington was on administrative leave from the Clovis PD because of a domestic violence incident with an ex-girlfriend.

Yambupah informed Martinez that she was going to make an arrest, but when Yambupah informed the other officers of Martinez’s allegations and that Pennington was with the Clovis PD, Sergeant Sanders, the acting supervisor on the scene, ordered her to refer the matter to the District Attorney instead of making an arrest. Yambupah testified that had Sanders not given the order, she would have arrested Pennington on that day “in the interest of Ms. Martinez’s safety.”

The officers did not give Martinez the jurisdiction’s domestic violence information handout, did not inform her of her right to effect a citizen’s arrest, did not offer her transportation to a shelter, and did not issue an emergency protective order. Yambupah testified that she did not give Martinez the handout because she did not want to leave her side. She “asked Martinez to let [her] help her,” but Martinez refused. She did not issue a protective order because Martinez “was not willing to pursue any assistance from [her] at all.” She foresaw a risk of continued violence, which she attempted, unsuccessfully, to address by verifying that Pennington was going to leave.

Yambupah did not know that Pennington was an officer with the Clovis PD until Martinez informed her that he was. Pennington testified that he knew of Sanders, but that they were not friends. Pennington’s father and Sanders had known each other for at least 25 years. On leaving, Sanders said that the Pennington’s were “good people.” After the officers left, Martinez was again beaten and sexually assaulted by Pennington. He was arrested the next day, and a criminal protective order was issued. Pennington physically and sexually abused Martinez multiple times between July and September 2013, when she finally moved out. Pennington was eventually convicted of multiple counts of violating the criminal protective order. He also pled guilty to one domestic violence charge.

Martinez sued Pennington, the cities of Clovis and Sanger, Officers Hershberger, Yambupah, and Sergeant Sanders, among others. Martinez asserted claims under 42 U.S.C. section 1983 of individual liability against Hershberger, Yambupah, and Sanders. The cities and officer defendants moved for summary judgment. The District Court granted summary judgment on all claims against the cities of Sanger and Clovis, as well as Hershberger, Yambupah, and Sanders. Partial judgment was issued. Martinez appealed.

Held: The Ninth Circuit Court of Appeals first explained that in evaluating whether an officer is entitled to qualified immunity, courts consider (1) whether the facts that a plaintiff has alleged make out a violation of a constitutional right, and (2) whether that right was clearly established at the time of the incident. See Wilkinson v. Torres, 610 F.3d 546, 550 (9th Cir. 2010). The Court recalled that the Ninth Circuit tended to address both prongs of qualified immunity where the two-step procedure promoted the development of constitutional precedent.

The Court began by considering the first prong of the qualified immunity inquiry, whether a constitutional right was violated. The Court explained that although the Due Process Clause of the Fourteenth Amendment does not “impose a duty on the state to protect individuals from third parties,” Patel v. Kent Sch. Dist., 648 F.3d 965, 971 (9th Cir. 2011), the state may be constitutionally required to protect a plaintiff that it “affirmatively places . . . in danger by acting with ‘deliberate indifference’ to a ‘known or obvious danger.’” Patel, 648 F.3d at 971-72 (quoting L.W. v. Grubbs, 92 F.3d 894, 900 (9th Cir. 1996)). Martinez argued that this state-created danger doctrine applied because Hershberger, Yambupah, and Sanders affirmatively exposed her to a greater risk of a known danger. After assessing the doctrine in regards to the conduct of the three officers,[3] the Ninth Circuit held that a reasonable jury could find that Officer Hershberger and Sergeant Sanders violated Martinez’s due process right to liberty by affirmatively increasing the known and obvious danger Martinez faced. The Court determined Officer Yambupah did not affirmatively increase the known or obvious danger to Martinez, and was thus entitled to qualified immunity.

The Ninth Circuit next addressed whether, at the time of the challenged conduct, the law was “clearly established” such that every reasonable officer in the officers’ shoes would have known that their conduct violated Martinez’s right to due process. The United States Supreme Court has declared that “‘clearly established law’ should not be defined ‘at a high level of generality.’” White v. Pauly, 137 S. Ct. 548, 552 (2017) (quoting Ashcroft v. al-Kidd, 563 U.S. 731, 742 (2011)). Rather, it “must be ‘particularized’ to the facts of the case.” Id. (quoting Anderson v. Creighton, 483 U.S. 635, 640 (1987)). “[A] defendant cannot be said to have violated a clearly established right unless the right’s contours were sufficiently definite that any reasonable official in the defendant’s shoes would have understood that he was violating it.” Plumhoff v. Rickard, 572 U.S. 765, 778-79 (2014) (citing al-Kidd, 563 U.S. at 741).

The Court observed that here the process to determine the matter involved first seeking binding precedent from the Supreme Court or the Ninth Circuit itself. Absent such precedent, decisions of state courts, other circuits, and district courts could be considered. Wherever the decision arose, the precedent must be “‘controlling’— from the Ninth Circuit or the Supreme Court—or otherwise be embraced by a ‘consensus’ of courts outside the relevant jurisdiction.” Sharp v. Cty. of Orange, 871 F.3d 901, 911 (9th Cir. 2017) (quoting Wilson v. Layne, 526 U.S. 603, 617 (1999)).

Martinez identified a Second Circuit decision, Okin v. Village of Cornwall-on-Hudson Police Department, 577 F.3d 415 (2d Cir. 2009), as being factually similar to the case here.^[4] However, the Ninth Circuit stated that it could not rely on Okin because it had not been embraced by a consensus of courts. In the absence of compelling precedent, the Ninth Circuit thus did not find that every reasonable official would have understood that the officers’ conduct here violated Martinez’s right to due process. The Ninth Circuit thus found that Officer Hershberger and Sergeant Sanders were entitled to qualified immunity because the due process right conferred in the context before the Court was not yet clearly established at the time of the facts in the case.

For a more detailed discussion of this case, please see Client Alert Vol. 34, No. 41, available at www.jones-mayer.com.

C. Probable cause exists to search another person’s home located on a larger property if there is reason to believe the defendant controls the entire parcel or criminality pervades the parcel.

Blight v. City of Manteca, 944 F.3d 1061 (9th Cir. 2019)

Facts: In September 2014, Manteca Police Department detectives Armando Garcia and Ian Osborn met with a confidential informant who had information on an illegal marijuana operation run by Marlin Lee Ford on his 4.26-acre rural property in Stockton, California. The informant had provided Garcia with truthful and reliable information on other marijuana operations in the past. The informant was not paid for the information, but there was a leniency arrangement related to whether other conduct would be treated as felonies or misdemeanors if the informant provided the Government information helpful to further drug investigations.

The informant provided the detectives with extensive firsthand knowledge of Ford’s operation: the informant had known Ford for more than ten years from the informant’s activities in the marijuana industry; the informant had helped Ford grow and process marijuana on Ford’s property; the informant knew where to find Ford’s property and could describe the property in detail; and the informant said there were guns and large dogs on the property. Detective Garcia corroborated that Ford lived at the property the informant had described, and he and Detective Osborn drove with the informant to the property. The informant identified the correct property, and identified Ford correctly from Ford’s DMV photo. The informant identified the field where the marijuana was being grown and two residences – Ford and his family lived in the main house and Nicolas Serrano, who helped Ford with the marijuana operation, lived in the mobile home.

Garcia applied for a search warrant. The search warrant affidavit stated that the premises to be searched included the “two modular homes, chicken coops and a small barn and various outbuildings.” Detective Garcia also gained approval for SWAT officers to assist the police officers with executing the warrant on the large property. The warrant was approved.

On the morning of October 23, 2014, Manteca police and SWAT officers executed the search warrant. Serrano and his children were actually in the main house, and Serrano was arrested. Serrano’s wife drove up during the search, and told Detective Garcia that an elderly woman, Joanne Blight, was inside the mobile home.

SWAT officers made announcements over a PA system to try to get Blight to exit the mobile home, and also ordered Blight to exit from the front door of the mobile home, but were unsuccessful. After six minutes passed with no response, SWAT officers breached the mobile home’s front door with a ram. Blight exited three minutes later and was placed into a police car without being searched or handcuffed. She recalled her detention time as almost an hour, whereas the dispatch transcription log recorded the time of Blight’s detention as 20 to 30 minutes. It was later learned that Blight had lived in and owned the mobile home for many years. Police found drugs and ammunition, among other things.

Blight filed a complaint against the City of Manteca (“City”) and individually named Manteca Police Department detectives and sergeants (“Defendants”), asserting Fourth Amendment violations under 42 U.S.C. section 1983, and other claims. The District Court granted Defendants’ motion for summary judgment. Blight appealed.

Held: Blight alleged that the search warrant to investigate an illegal marijuana operation was overbroad because there was no probable cause to search her mobile home, which was separate from the suspect’s main house and had a separate address. The Ninth Circuit Court of Appeals observed that the issuing judge reasonably relied on Detective Garcia’s description of the informant’s statements given the informant’s reliability, trustworthiness, the detailed firsthand information provided by the informant, and the detective’s own extensive experience in narcotics-related investigations and searches.[5]

The Court explained that in its prior decision United States v. Alexander, 761 F.2d 1294, 1301 (9th Cir. 1985), the Ninth Circuit held that “a warrant is valid when it authorizes the search of a street address with several dwellings if the defendants are in control of the whole premises, if the dwellings are occupied in common, or if the entire property is suspect.” Id.

 The Court found here that there was a substantial basis for the judge who issued the warrant to believe Ford was in control of the whole premises because the informant said Ford owned the entire property and said Serrano lived in the mobile home in order to help Ford with his drug operation. Also, there was a fence surrounding the whole property and a walkway between the main house and the mobile home. The Court also found a substantial basis for the judge to believe the entire property was suspect, based on the informant’s information that marijuana was grown outside and then processed in the buildings on the property. Garcia corroborated this setup based on his experience. Thus, the Court determined there was probable cause to issue a warrant authorizing a search of the entire property, including the mobile home; the search warrant’s breadth was “co-extensive with the scope of this probable cause,” and the warrant was not overbroad. The Court added that the probable cause to search the mobile home did not depend on Serrano living there, as Blight argued; the officers could still reasonably believe that the entire property was suspect and that the property was still under Ford’s common control, regardless of whether he was on the property at the time of the search, and regardless of who was found in the mobile home.

Lastly, the Court rejected Blight’s contention that the duration of the search was unreasonable under the Fourth Amendment because of her age (74), the lack of evidence linking her to the marijuana operation, and the length of time of the detention. The Court held that given that the officers had a warrant to search the mobile home, they had categorical authority to detain Blight, the occupant of the mobile home at the time of the search. The officers also did not detain plaintiff in an unreasonable manner and her detention of no more than one hour was not an unreasonable length of time given the circumstances. Accordingly, the Ninth Circuit affirmed the District Court’s grant of summary judgment to Defendants.

D. Ninth Circuit rules that District Court abused its discretion in precluding testimony concerning mental illness of decedent of which officer was unaware at time of incident.

Crawford v. City of Bakersfield, 2019 U.S. App. LEXIS 37056 (9th Cir. 2019)

Facts: In 2014, Elsa Torres called the police and told dispatch there was a man “trying to burn us.” She also relayed that Dozer was now at a minimart “knocking all the stuff down.” Bakersfield Police Officer Aaron Stringer was assigned the call where he was informed that “a subject at the gas station … had poured gasoline on a woman and tried to light her on fire” and that the woman’s children were in the car too. Upon arriving on scene, Officer Stringer spoke with Torres. He did not observe any burns on her, but a witness corroborated that Dozer had poured gasoline on Torres.

Stringer observed Dozer move towards the minimart. There were people approximately twenty feet away from Dozer. Officer Stringer observed Dozer “pacing around” and looking “very agitated.” The officer thought Dozer’s behavior was “erratic” and “aggressive in general.” Approaching Dozer to hear what he was saying, Officer Stringer heard Dozer say. “You want to do this. Let’s go.” Officer Stringer responded, “No, let’s not do this. I just want to talk to you.” Based on Dozer’s “amped up” behavior and his “angry” demeanor, Officer Stringer concluded that Dozer was challenging him and that Dozer was under the influence of a narcotic. Officer Stringer also concluded that the situation would “most likely…escalate quickly,” and thus requested an expedited back up.

Dozer stopped approximately twenty feet away from Officer Stringer, whereupon Officer Stringer ordered him to get on the ground. Upon hearing Officer Stringer’s order, Dozer began picked up a horseshoe-shaped metal bike lock, raised it over his head and started “charging” towards the officer. Officer Stringer ordered Dozer to drop the lock as he attempted to back up, and then drew his firearm as Dozer continued charging toward him. Officer Stringer also had a Taser, baton and pepper spray on his person, but because of Dozer’s fast approach with the metal bike lock, Officer Stringer asserted that he did not have enough time to deploy any of these devices. Within one minute of his arrival, Officer Stringer shot Dozer as Dozer advanced toward him with the metal bike lock. Another witness stated that Dozer was approximately five to ten feet away from Officer Stringer when Dozer was shot.

Plaintiff Leslie Crawford, Dozer’s mother, sued the City of Bakersfield, California and Bakersfield police officer Aaron Stringer (together, “Defendants”). At trial, the plaintiff’s attorney attempted to introduce testimony from Crawford, regarding her son’s past ordeals with mental illness and the various treatment programs he had attended over the years. Plaintiff’s counsel was also going to have her testify that Dozer was “schizophrenic.” The District Court barred Crawford from testifying about her past observations regarding Dozer and his mental illness since Officer Stringer knew nothing about Dozer’s past. The District Court ruled that her personal observations were not relevant as to whether the police officer should have known that Dozer’s behavior could have been caused by mental illness. However, the District Court permitted evidence concerning whether Dozer’s behavior was due to drugs or to mental illness because the evidence was relevant as to whether the force used by the police officer was reasonable. Ultimately, the jury found in favor of Officer Stringer. Plaintiff appealed.

Held: The Ninth Circuit Court of Appeals determined that the District Court abused its discretion in denying Plaintiff the opportunity to testify concerning her past observations of her son and the treatment for mental illness that he had received. The Court reversed the case and remanded it for a new trial.

The Court noted that Crawford alleged that “that Stringer used excessive force in violation of the Fourth Amendment and that his actions were negligent under California law.” The Court acknowledged that the encounter between the officer and Dozer required a Graham v. Connor[6] analysis with respect to the excessive force claim. The Court observed that “[i]n evaluating a Fourth Amendment excessive force claim, the jury asks ‘whether the officers’ actions were ‘objectively reasonable’ in light of the facts and circumstances confronting them.’” [Citations omitted.][..]” Vos v. City of Newport Beach, 892 F.3d 1024, 1030 (9th Cir. 2018) (quoting Graham, 490 U.S. at 396).” The Court further observed that “[t]he ‘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 1031 (quoting Graham, 490 U.S. at 396).” The Court noted that the “‘three primary factors’ in assessing the government’s interest are (1) ‘the severity of the crime at issue,’ (2) ‘whether the suspect poses an immediate threat to the safety of the officers or others,’ and (3) ‘whether the suspect is actively resisting arrest or attempting to evade arrest by flight.’” Id. at 1033.

As to the claim for negligence under California law, the Court observed that, “Crawford’s wrongful death claim turned on similar considerations. To prevail on her negligence theory, Crawford had to show that Stringer ‘had a duty to use due care, that he breached that duty, and that the breach was the proximate or legal cause of the resulting injury.’” Hayes v. Cty. of San Diego, 57 Cal. 4th 622, 160 Cal. Rptr. 3d 684, 305 P.3d 252, 255 (Cal. 2013) (quoting Nally v. Grace Community Church, 47 Cal. 3d 278 (Cal. 1988)). The Court further noted that, “California’s totality-of-the-circumstances inquiry includes pre-shooting circumstances and thus ‘is broader than federal Fourth Amendment law, which tends to focus more narrowly on the moment when deadly force is used.’” Id. at 263.

The Court also stated that, “[t]he district court correctly held that evidence of Dozer’s mental illness was relevant because the reasonableness of Stringer’s use of deadly force depended in part on whether he knew or should have known that Dozer’s behavior was caused by mental illness.” The Court indicated that “our precedent establishes that if officers believe a suspect is mentally ill, they ‘should make a greater effort to take control of the situation through less intrusive means.’“ Vos, 892 F.3d at 1034 n.9 (alterations omitted) (quoting Bryan v. MacPherson, 630 F.3d 805, 829 (9th Cir. 2010)).” The Court concluded: “‘[W]hether the suspect has exhibited signs of mental illness is one of the factors the court will consider in assessing the reasonableness of the force used, in addition to the Graham factors, the availability of less intrusive force, and whether proper warnings were given.’ Id.”

In applying these principles, the Court stated, “The district court abused its discretion, however, in holding that Crawford’s proposed testimony was irrelevant on the ground that Stringer, at the time of the shooting, did not know about the past events to which Crawford would have testified. Crawford’s testimony regarding Dozer’s past behavior and treatment was relevant to whether he was in fact mentally ill at the time. Evidence that Dozer had previously behaved in ways consistent with mental illness and had been taken to mental health providers for treatment, makes it more likely that he continued to suffer from mental illness on the day of the shooting. In turn, whether Dozer was in fact mentally ill that day is relevant to whether he would have appeared to be mentally ill, and thus to whether Stringer knew or should have known that Dozer was mentally ill; after all, the existence of some underlying fact tends to make it more likely that a person knew or should have known that fact.”

Thus, according to the Court, Crawford’s testimony about Dozer’s past behaviors and treatment was relevant even though the officer knew absolutely nothing about any prior behavior. Moreover, the Court found that the District Court’s error in limiting the testimony of Crawford undercut her ability to prove a key component of her case under a negligence theory of recovery.

For a more detailed discussion of this case, please see Client Alert Vol. 35, No. 41, available at www.jones-mayer.com.

E. Gunshots fired outside a dwelling do not justify a warrantless search inside the dwelling; the police must articulate specific facts that establish an emergency situation is occurring inside the dwelling.

People v. Rubio, 43 Cal. App. 5th 342 (1st Dist. 2019)

Facts: In October 2016, East Palo Alto Police Department Sergeant Clint Simmont received an alert notifying him of a shooting in a high-crime neighborhood. The alert indicated two separate bursts of gunfire had occurred at a particular address. First, five rounds came from the edge of the garage driveway area of 2400 Gonzaga, then one minute later came six rounds at “the edge of the driveway, near the sidewalk.” Sergeant Simmont and four other officers arrived near the location where the shots were fired, parking 60-70 feet from the edge of the driveway. Witnesses reported gunfire, pointing to the driveway at 2400 Gonzaga. Officers approached the house, and at the top of the driveway near the garage found a spent shell casing. A known belligerent emerged through a fence gate shouting obscenities and taking a combative stance. The officers arrested him and put him in a patrol car. Two more spent casings were found behind the gate. Sergeant Simmont pounded loudly on the door by the side of the garage and announced police presence four or five times, but there was no response. Sergeant Simmont heard movement inside that sounded like someone barricading the door.

The officers spoke to several people at the front door of the residence, including the father of defendant Adan Rubio who said he did not know if anyone had been shot. Inside the house,[7] the father said that his son Rubio was inside the garage. Sergeant Simmont asked for permission to search the garage, to which the father responded, “Sure.” As the father was getting the garage key, Rubio emerged from the garage and closed the door to the garage, which automatically locked behind him. He approached the officers with his hands in his pockets, yelling for them to shoot him. Officers arrested Rubio and placed him in a patrol car.

Sergeant Simmont testified later that he had no reason to believe anyone had been shot, but he “didn’t have anything to rule that out, either,” so he and another officer kicked the door open and entered the garage. The garage was actually a converted apartment. The officers did not find anyone inside the apartment, but did find “an explosive device on a shelf” and an operable .45 semiautomatic pistol on the shelf in an open closet. The officers cleared the house of all occupants, and later a search warrant was obtained. Officers executed the warrant, finding additional firearms, ammunition, and “a clear, rock-like substance” in a shot glass.

The San Mateo County District Attorney filed a six-count felony information, charging Rubio with various firearm and controlled substance offenses. A trial court denied Rubio’s motion to suppress the evidence found in his apartment, citing the emergency aid doctrine of the community caretaking exception. Thereafter, Rubio entered a plea of no contest and was convicted by plea to possession of a controlled substance with a firearm.[8] He was sentenced to three years of supervised probation, subject to conditions including nine months in the county jail or a residential substance abuse treatment program. Rubio appealed.

In July 2019, the California First District Court of Appeal affirmed his conviction, relying on the community caretaking exception articulated in People v. Ray (1999) 21 Cal.4th 464 and other cases to uphold the search. Less than four weeks after the First District’s decision, the California Supreme Court decided People v. Ovieda (2019) 7 Cal.5th 1034, in which it disapproved the lead opinion in Ray to the extent the prior decision had relied on an expansive reading of the community caretaking exception to allow warrantless entry into a home. (Ovieda, supra, 7 Cal.5th at p. 1038.) The First District then, on its own motion, granted rehearing of this case and asked the parties to brief the significance of Ovieda.

Held: The First District explained, “[w]ith few exceptions, the question whether a warrantless search of a home is reasonable and hence constitutional must be answered no.” (Kyllo v. United States (2001) 533 U.S. 27, 31.) The Attorney General asserted that the emergency aid exception and the exigent circumstances exception (established exceptions to the Fourth Amendment’s warrant requirement) each justified the warrantless intrusion here. The Court disagreed.

The Court observed that the need to render emergency aid justifies warrantless entry only where officers have “‘“specific and articulable facts”’” showing that an intrusion into the home was necessary. (Ovieda, supra, at p. 1043.) It was not enough, stated the Court, that officers sought to rule out “the possibility that someone … might require aid.” (Id. at p. 1047.) The First District declared that what was “missing in this case are specific and articulable facts that would lead a reasonable person to conclude shots fired outside defendant’s garage apartment required breaking down the door to rescue someone inside his home.” The Court concluded that the emergency aid exception did not apply because the police had no reasonable basis to conclude there was anybody inside the apartment who was in danger or distress.

Addressing the exigent circumstances exception, the First District noted that the Supreme Court has defined exigent circumstances as “an emergency situation requiring swift action to prevent imminent danger to life or serious damage to property, or to forestall the imminent escape of a suspect or destruction of evidence.” (People v. Ramey (1976) 16 Cal.3d 263, 276.) “[E]ntry into a home based on exigent circumstances requires probable cause to believe that the entry is justified by … factors such as the imminent destruction of evidence or the need to prevent a suspect’s escape.” People v. Thompson (2006) 38 Cal.4th 811, 818.

Here, the Court found the totality of the circumstances did not establish that when the police entered Rubio’s garage apartment they had probable cause to believe a shooter would be found there was hiding out in the apartment or that evidence of criminal conduct would be destroyed before the police had a chance to obtain a warrant. The Court explained that although much evidence established that a shooting had occurred outside the apartment, no witnesses or other evidence placed a gunman inside the residence at any time before the police broke down Rubio’s door. The Court stated that after Rubio emerged and was detained, police had no reason to believe anybody—shooter or otherwise—remained in the garage. The Court thus concluded that the exigent circumstances exception did not apply. Accordingly, the First District Court of Appeal reversed, and remanded to allow Rubio to withdraw his plea.

F. Welfare and Institutions Code section 625.6 is not subject to the exclusionary rule; a minor’s statements are admissible despite the police not providing minor with counsel prior to questioning as required by statute.

In re Anthony L., 43 Cal. App. 5th 438 (1st Dist. 2019)

Facts: Security camera footage recorded five teenagers having words with a 61-year old man in his driveway, then repeatedly hitting and kicking him before running away. One of the juvenile’s teachers was shown the video and still photos from the video and identified then-15-year-old Anthony L. Minor (“Minor”) as one of the assailants. The teacher recognized him by the gray hooded sweatshirt he was wearing and the shape of his face. Sergeant Christopher Smith of the San Francisco Police Department contacted Minor’s mother and told her he was investigating a crime and needed to meet with Minor and his mother. Officer Martinez, who spoke Spanish, accompanied Sergeant Smith in February 2018 to the home, with Martinez’s body camera recording the events.

The mother led them to Minor’s bedroom, where he was sleeping. The mother stayed in the room. Smith handed Minor a “Juvenile Know Your Rights” form and told Minor, “I’m going to read you your rights just because you’re a juvenile… you’re not under arrest.” Smith read Minor rights issuing from Miranda v. Arizona (1966) 384 U.S. 436. When asked if he understood each statement, Minor answered “Yes.”

Smith then questioned Minor about the incident. Minor was mostly reticent but admitted to being at the location, and to remembering what he and his friends did to the man. Minor eventually admitted that he kicked the car and that he hit the victim because the victim made him upset. Smith then placed Minor under arrest.

A juvenile wardship petition alleged Minor committed assault with force likely to cause great bodily injury. Minor moved to exclude his statements to the police on constitutional and statutory grounds, but the juvenile court denied the motion. The juvenile court found no violations of Miranda nor Welfare and Institutions Code section 625.6 as Minor had alleged. The Court found the allegations of the petition true, and then declared Minor a ward and placed him on probation. Minor appealed the juvenile court’s order.

Held: On appeal, Minor argued that the juvenile court should have excluded his statement to police officers because the officers improperly questioned him before he consulted with an attorney in violation of Section 625.6 and that the juvenile court erred in, among other things, failing to take that fact into account in admitting his statements.

The California First District Court of Appeal considered Minor’s appeal. As an initial matter, the Court assumed “[f]or the purposes of [its] analysis” that the juvenile court was correct in finding the interview custodial, although the question of whether a reasonable 15-year-old in these circumstances would have felt free to end the questioning and leave the room, or have the officers leave, was “a close issue.”

The Court observed that Section 625.6(a) provides that, “[p]rior to a custodial interrogation, and before the waiver of any Miranda rights, a youth 15 years of age or younger shall consult with legal counsel…” Subdivision (b) directs that “[t]he court shall, in adjudicating the admissibility of statements of a youth 15 years of age or younger made during or after a custodial interrogation, consider the effect of failure to comply with subdivision (a).”

 The Court observed that the officers did not arrange for Minor to consult with counsel before questioning him. However, the Court also observed that the “Truth-in-Evidence” provision of the California Constitution generally provides that “…relevant evidence shall not be excluded in any criminal proceeding … or in any trial or hearing of a juvenile for a criminal offense, whether heard in juvenile or adult court. …” (Cal. Const., art. 1, section 28(f)(2).) The Court clarified that under this provision, relevant evidence may be excluded only if exclusion is required by the United States Constitution.[9] (In re Lance W. (1985) 37 Cal.3d 873, 890.) The Court explained that the Truth-in-Evidence law did not authorize exclusion of evidence as a remedy for violation of a state statute. Because “the Truth-in-Evidence provision [citation] [left] [the Court] with no power to exclude a minor’s self-incriminatory statements except as federal law requires” (People v. Lessie (2010) 47 Cal.4th 1152, 1169), the Court concluded that state Section 625.6 did not authorize a court to exercise its discretion to exclude statements if those statements are admissible under federal law.

Turning to Minor’s substantive challenges to the admission of his statements, the Court found no violation of Miranda because Minor validly waived his Miranda rights. The Court explained that Minor willingly answered questions after acknowledging that he understood his rights, and nothing in the record persuaded the court that he did not understand his rights to silence and counsel and the consequences of waiving those rights. Nor was there any coercion, as Minor argued, because Minor readily acknowledged the incident as soon as Smith asked him if he remembered it. The Court therefore found no basis to conclude Minor’s will was overborne by deception or trickery, and concluded that the juvenile court properly admitted his statements.

The First District accordingly affirmed the juvenile court’s order. The Court also struck an impermissibly vague probation condition and remanded on that basis.

G. Officer not entitled to qualified immunity where it was clearly established that use of a chokehold on non-resisting, restrained person violates Fourth Amendment’s prohibition on use of excessive force.

Tuuamalemalo v. Greene, 2019 U.S. App. LEXIS 38360 (9th Cir. Dec. 24, 2019)

Facts: In January 2014, police officer Shahann Greene was a member of the Homeland Saturation Team of the Las Vegas Metropolitan Police Department (“LVMPD”), a unit specializing in riot control. A call came in requesting backup at a music venue in the Hard Rock Hotel and Casino to ensure a fight would not break out. During a concert at the venue, Ian Tuuamalemalo was having drinks and listening to the music along with other people in an upstairs booth.

After Greene and other LVMPD officers arrived at the hotel, an officer approached a member of Tuuamalemalo’s party. Tuuamalemalo approached the officers and tried to speak with them. A surveillance video showed police officers and members of Tuuamalemalo’s group pushing one another. Tuuamalemalo was pushed by one of the officers. After Tuuamalemalo and other patrons were moved outside the venue but still inside the hotel, they were followed closely by officers. As Tuuamalemalo was pushed along the hallway with a mixed group of patrons and police officers, he collapsed. With the help of officers and patrons, Tuuamalemalo was able to stand up. He began walking toward the hotel exit with help from two friends, one on each side. A group of officers followed Tuuamalemalo and his friends as they walked toward the exit. A police sergeant pushed through the group and grabbed the back of Tuuamalemalo’s shirt. The video showed Tuuamalemalo turning around. The sergeant then punched Tuuamalemalo on the left side of his face and five officers took Tuuamalemalo to the ground. Officer Greene put Tuuamalemalo in a chokehold. 

The video showed Tuuamalemalo on the floor with a number of officers on top of him. Nothing in the video showed any resistance by Tuuamalemalo. Officer Greene’s chokehold was a lateral vascular neck restraint (“LVNR”), which restricts the flow of blood to the brain rather than restricting air flow. The chokehold rendered Tuuamalemalo unconscious. It took some time and several attempts to revive him. Tuuamalemalo was then arrested. All charges were ultimately dismissed.

Tuuamalemalo sued under 42 U.S.C. section 1983, alleging excessive force. Officer Greene moved for summary judgment based on qualified immunity. The District Court denied Greene’s motion, although the court granted summary judgment to LVMPD and other officers. The claims against Greene all related to his use of the chokehold on Tuuamalemalo. Greene brought an interlocutory appeal of the denial of his motion for summary judgment.

Held: The Ninth Circuit Court of Appeals explained that to determine whether Officer Greene was entitled to summary judgment based on qualified immunity under Section 1983, two questions must be addressed. First, “[t]aken in the light most favorable to the party asserting the injury, do the facts alleged show the officer’s conduct violated a constitutional right?” Scott v. Harris, 550 U.S. 372, 377 (2007) (quoting Saucier v. Katz, 533 U.S. 194, 201 (2001)). Second, “whether the right was clearly established . . . in light of the specific context of the case.’“ Id. (quoting Saucier, 533 U.S. at 201). The Court added that it had discretion to decide the second question first, thereby avoiding the first question.[10] The Court noted that Officer Greene did not dispute that, viewing the evidence in the light most favorable to Tuuamalemalo, his use of the chokehold violated the Fourth Amendment. The Ninth Circuit therefore considered whether Greene’s use of a chokehold violated a clearly established right in light of the specific context of the case.

The Court explained that the Ninth Circuit’s decision in Barnard v. Theobald, 721 F.3d 1069 (9th Cir. 2013), squarely addressed the constitutionality of the use of a chokehold on a non-resisting person. Barnard affirmed a jury’s finding that when officers in that case placed the non-resisting, restrained plaintiff in a chokehold and then pepper sprayed him, the officers’ use of force violated the Fourth Amendment. Id. at 1076. The Circuit had earlier held in Drummond ex rel. Drummond v. City of Anaheim, 343 F.3d 1052, 1059 (9th Cir. 2003), that “any reasonable person . . . should have known that squeezing the breath from a compliant, prone, and handcuffed individual despite his pleas for air involves a degree of force that is greater than reasonable.”

Here, the Court held that viewing Tuuamalemalo’s version of the facts in the light most favorable to him, he was not resisting arrest when Officer Greene placed him in a chokehold. Further, there was little chance he could initiate resistance with five other officers fully restraining him and pinning him to the ground. The Court concluded that given the state of the law in this Circuit, it was clearly established that the use of a chokehold on a non-resisting, restrained person violated the Fourth Amendment’s prohibition on the use of excessive force. With respect to Tuuamalemalo’s claims under state law, the Court further held that the same version of the facts that justified the District Court’s decision to deny Officer Greene qualified immunity under Section 1983 precluded a grant of immunity under Nevada law. The Court accordingly affirmed and remanded.

EVIDENCE

California Supreme Court concludes that a secret recording of a phone conversation was not barred by a privacy provision because that provision had been repealed by the “Right to Truth-in-Evidence” provision in the state constitution.

People v. Guzman, 8 Cal. 5th 673 (2019)

Facts: 10-year-old E.F. confided to her adult neighbor Lorena that Lorena’s uncle, defendant Alejandro Guzman, had inappropriately touched E.F. In a separate later incident, 12-year-old M.M told her mother Esperanza that, during a sleepover with Guzman’s daughter, Guzman had touched M.M. and made M.M. touch him. M.M. also told Esperanza that Lorena, who was M.M.’s cousin, had warned M.M. about Guzman. Esperanza spoke with Lorena by phone, but did not tell Lorena that the call was being recorded.

Esperanza did not inform law enforcement of the recording’s existence until the day jury selection in Guzman’s trial was to begin. Upon learning of the recording, the prosecution informed the court that it intended to use the recording to cross-examine Lorena, who was expected to testify for the defense. Defense counsel objected, arguing that the recording was categorically inadmissible under Penal Code section 632(d), which prohibits the admission of “evidence obtained … in violation of this section … in any judicial, administrative, legislative, or other proceeding.” The trial court determined instead that Section 632(d) had been repealed by the “Right to Truth-in-Evidence” provision of the California Constitution, which was enacted as part of Proposition 8 in 1982.

A transcript of the recording was subsequently admitted into evidence. The jury thus heard Lorena making various statements that were unfavorable to Guzman. For example, Lorena said that she did not “feel good around [Guzman], like when I’m wearing shorts or anything.” Lorena further said that although Guzman “hasn’t touched me anywhere else like…” on her private parts, she knew “he’s capable of doing that” and “that’s why [she] believe[s] what [M.M]’s saying.” Moreover, although at trial Lorena denied that she had warned M.M. about Guzman, in her phone conversation, she appeared to admit that she “told [M.M.] … to be careful.” After hearing from the various witnesses, the jury convicted Guzman of two counts of committing a lewd and lascivious act upon a child.

Guzman appealed, arguing that the trial court prejudicially erred in admitting the recording because the admission “contravened the exclusionary rule stated in Penal Code section 632, subdivision (d).” The Court of Appeal rejected the argument, finding that within the criminal context, Section 632(d) had been rendered inoperative by Proposition 8. The appellate court thus concluded the recording was properly admitted and affirmed Guzman’s convictions.

Held: The California Supreme Court granted review to determine the continued viability of Section 632(d) in light of the limits placed on the exclusion of evidence by the “Right to Truth-in-Evidence” provision of the Constitution.

The Court noted that the Legislature enacted Section 632 in 1967 as part of the Invasion of Privacy Act.^[11] “The purpose of the act was to protect the right of privacy by, among other things,” “replacing prior laws that permitted the recording of telephone conversations with the consent of [only] one party to the conversation.” (Flanagan v. Flanagan (2002) 27 Cal.4th 766, 768–769.) Subdivision (d) of Section 632, the exclusionary remedy of the section, provides: “Except as proof in an action or prosecution for violation of this section, evidence obtained as a result of eavesdropping upon or recording a confidential communication in violation of this section is not admissible in any judicial, administrative, legislative, or other proceeding.” (Section 632(d).)

In 1982, the voters approved Proposition 8, thereby amending the state Constitution. Proposition 8 contained a provision known as the Right to Truth-in-Evidence, now codified at article I, section 28(f)(2). In relevant part, the provision states: “Except as provided by statute hereafter enacted by a two-thirds vote of the membership in each house of the Legislature, relevant evidence shall not be excluded in any criminal proceeding, including pretrial and post conviction motions and hearings, or in any trial or hearing of a juvenile for a criminal offense, whether heard in juvenile or adult court. Nothing in this section shall affect any existing statutory rule of evidence relating to privilege or hearsay, or Evidence Code Sections 352, 782 or 1103.” (Cal Const., Art. I, section 28(f)(2) (hereafter, “Section 28(f)(2)”).)

The Court explained that it would pursue two separate inquiries to determine whether the Right to Truth-in-Evidence provision abrogated the exclusionary remedy of Section 632(d) as that remedy applies to criminal proceedings. First, the Court considered whether the constitutional provision repealed Section 632(d) at the moment of its passage in 1982. If so, the second inquiry would examine whether the Legislature revived Section 632(d) by a two-thirds vote any time thereafter, thus restoring the section’s prohibition against admission of secret recordings.

The Court reminded that the “the express, unambiguous language of [S]ection 28[(f)(2)]” (In re Lance W. (1985) 37 Cal.3d 873, 886) states that “[e]xcept as provided … , relevant evidence shall not be excluded in any criminal proceeding.” (Section 28(f)(2).) The Court determined that “[t]his clearly stated command has only one apparent meaning”—to prohibit the exclusion of evidence at criminal proceedings except on those grounds expressly contemplated by the constitutional provision. (Lance W., supra, 37 Cal.3d at p. 886.) Section 632(d), the Court found, was not exempt from the Right to Truth-in-Evidence provision because Section 632(d) did not fit within any of those grounds: Section 632(d) was neither an “existing statutory rule of evidence relating to privilege or hearsay,” nor “Evidence Code Sections 352, 782 or 1103.” (Section 28(f)(2).)

From the express language of Section 28(f)(2), the Court determined that to the extent that Section 632(d) demanded the suppression of relevant evidence at criminal proceedings, it was superseded when the voters approved the constitutional amendment in 1982. (See People v. Wheeler (1992) 4 Cal.4th 284, 291 [“[S]ection 28[(f)(2)] supersedes all California restrictions on the admission of relevant evidence except those preserved or permitted by the express words of [S]ection 28[(f)(2)] itself”].) Moreover, the Court’s review of the history of the Right to Truth-in-Evidence provision supported the Court’s view of the finding that Section 632(d) was abrogated by the Section 28(f)(2), including from the ballot materials^[12] related to Proposition 8. “In essence,” the Supreme Court explained, “voters were informed that Proposition 8 would abrogate [S]ection 632(d)—and they approved.”

The Court thus concluded that the passage of the Right to Truth-in-Evidence provision in 1982 repealed Section 632(d) to the extent the section applied to criminal proceedings. Because Section 28(f)(2) provides that exclusionary remedies may be created, or recreated, “by a two-thirds vote of the membership in each house of the Legislature,” the Court reached its second inquiry: whether the Legislature revived Section 632(d) by a two-thirds vote any time thereafter.

The Supreme Court noted that in 1985, 1990, 1992, and 1994, the Legislature—by at least a two-thirds vote of the membership of both the Assembly and Senate—amended one or more subdivisions of Section 632 and reenacted the section in its entirety. However, the Court determined that each time, the exclusionary remedy of subdivision (d) of Section 632 was reenacted only as an incident to other provisions of Section 632 being amended. The Court therefore found the exclusionary remedy was not revived by the section amendments.

The Court noted that Article IV, section 9 of the California Constitution requires an amended statute to be reenacted, but a reenacted statute may be amended in only some parts and not others. Government Code section 9605 provides that “[i]f a section or part of a statute is amended, it is not to be considered as having been repealed and reenacted in the amended form. The portions that are not altered are to be considered as having been the law from the time when those provisions were enacted.” (Government Code section 9605(a).) The Court clarified that “[n]either article IV, section 9, nor Government Code section 9605, contemplates reenactment of the unchanged portions of an amended statute in the form of its original enactment if there have been intervening amendments of those portions.” (Lance W., supra, 37 Cal.3d at p. 895, fn. 18.) Instead, “[t]he clear intent of [][S]ection 9605 is to codify the rule that the unchanged portions of the newly amended statute be ‘reenacted’ as they existed immediately prior to the amendment.” (Id., at p. 895, fn. 18, italics added.)

Thus, the Supreme Court determined that mere reenactment of section 632 did not necessarily revive the exclusionary rule of Section 632(d). To find that a subsequent amendment of Section 632 effected the revival of its exclusionary provision, the Court stated that there must be something in the “language, history, or context of the amendment[]” to support the conclusion that the Legislature intended such a result. (In re Christian S. (1994) 7 Cal.4th 768, 771.) Absent evidence of such an intent, the Court continued, the reenactment of Section 632 simply reinstated the statute as it existed at the time of reenactment—i.e., the statute, as limited by the Right to Truth-in-Evidence provision to include no exclusionary remedy.

In 1985, the Legislature amended subdivision (a) of Section 632, accomplishing its purpose – protecting privacy of then-new cell phone communications – primarily through the enactment of Section 632.5. No changes were made to Section 632(d), but to effectuate the change to section 632, subdivision (a), the Legislature reenacted section 632 in its entirety. The Court found nothing in the language, legislative history, or surrounding context of the 1985 amendment that suggested that the Legislature intended to overcome the Right to Truth-in-Evidence provision and revive section 632(d). The Court came to the same conclusion for the 1990 and 1992 amendments reenacting Section 632, neither of which mentioned Section 632(d) but instead involved only “stylistic” or “technical, nonsubstantive” changes. Thus, Section 632(d) remained abrogated by Proposition 8, despite these later amendments. The California Supreme Court had thus resolved the second inquiry, concluding that the subsequent amendments of Section 632 did not revive the exclusionary remedy. Thus, the Supreme Court concluded that the exclusionary provision of Section 632(d) did not bar the admission of the recording at Guzman’s criminal trial, and, accordingly affirmed the judgment of the Court of Appeal.

 PUBLIC EMPLOYMENT

A. A public employee union need not exhaust administrative remedies before filing a lawsuit when the administrative process does not allow a class grievance on behalf of all represented employees.

Ass’n for L.A. Deputy Sheriffs v. Cnty. of L.A., 42 Cal. App. 5th 918 (2nd Dist. 2019)

Facts: The Association for Los Angeles Deputy Sheriffs (“ALADS”) represents nonmanagement deputy sheriffs and peace officers employed in the County of Los Angeles (“County”) District Attorney’s office. Management peace officers in those law enforcement agencies are represented by another employee collective bargaining unit, the Los Angeles County Professional Peace Officers Association (“PPOA”). A November 2015 memorandum of understanding between ALADS and the County (the “MOU”) described compensation provisions which required the County to match compensation increases given to other County safety employee unions. The MOU was in effect from February 1, 2015, to January 31, 2018.

In May 2017, the County Board of Supervisors approved a salary adjustment for sworn management peace officers employed by the sheriff’s department and the district attorney’s office and represented by PPOA. Pursuant to that adjustment, such employees who have a supervisory certificate from the California Commission on Peace Officers Standards and Training (“POST”) received an additional 1.5 percent in salary effective July 1, 2017, and an additional 2.0 percent in salary effective July 1, 2018.

ALADS considered that because “the vast majority (if not all) of the individuals represented by PPOA possess or can readily obtain Supervisory POST Certificates,” the provision of additional Supervisory POST pay constituted a compensation increase for those represented by PPOA (which, by the terms of the MOU, would require the County to match to ALADS). In June 2017, ALADS initiated two grievances “on behalf of all of its members,” although ALADS “[did] not concede that the grievance procedures set forth in the ALADS MOU provide adequate administrative remedies).”

After proceeding through all the preliminary steps of the grievance process, and after the Los Angeles County Employee Relations Commission (“ERCOM”) had scheduled an arbitration hearing in October 2017, the County allegedly “objected to ALADS’ requests for arbitration on the grounds that ALADS could not initiate a grievance on behalf of the individuals it represents.” The County said this objection did not concern ALADS’s right to represent its members in the grievance process, but rather to its right to bring a representative grievance that purported to be on behalf of all of its members (i.e., a class grievance).

At the hearing, ERCOM directed that the grievances as presented be scheduled for arbitration, and advised that the arbitrator could rule on the County’s objections. The arbitrator handling the grievances subsequently took the scheduled arbitrations off calendar as a result of the County’s refusal to comply with a discovery order.

In November 2017, ALADS sued the County concerning the County’s alleged breach of the MOU. The trial court rejected ALADS’s contention that the administrative procedure available under the MOU was inadequate because it did not permit class grievances. The court sustained the County’s demurrer without leave to amend on the sole ground that ALADS failed to exhaust the administrative remedies available under the labor agreement before filing suit. ALADS appealed.

Held: The California Second District Court of Appeal explained that the failure to arbitrate in accordance with the grievance procedures in a collective bargaining agreement is “analogous to the failure to exhaust administrative remedies.”[13] “In general, a party must exhaust administrative remedies before resorting to the courts.”[14] The Court explained that this exhaustion doctrine promoted administrative autonomy[15] and judicial efficiency.[16] However, the Court noted that the exhaustion doctrine does not apply when the available administrative remedy is inadequate or when it is clear that pursuing that remedy would be futile.[17] ALADS argued on appeal that the exceptions applied here.

The Court noted that the grievance procedure set forth in the MOU provided that only grievances that “are brought by an employee who was represented by ALADS in all steps of the grievance procedure may be submitted to arbitration hereunder.” ALADS argued that because classwide relief was not available through the MOU’s grievance process; to obtain the benefits it claimed were due to its entire membership, it would need to prosecute separate individual grievance actions on behalf of each of its 7,800 members. The Second District agreed that “such an onerous and time-consuming process precludes adequate relief.”

The Court explained that it was “undisputed that classwide relief is not available under the administrative procedures set out in the MOU. Nor does the County dispute ALADS’s claim that, although the same contract interpretation issue would arise in each individual grievance, a decision on that issue in one member’s proceeding would not have any binding effect on other members’ claims.” The Court observed that in Tarkington v. California Unemployment Ins. Appeals Bd. (2009) 172 Cal.App.4th 1494, the court summarized the law on exhaustion of administrative remedies when a judicial action seeks relief on behalf of a class. The Tarkington court explained that, if the available administrative remedies “do provide classwide relief, than [sic] at least one plaintiff must exhaust them before litigation may proceed. If the remedies do not provide classwide relief, then no plaintiff need exhaust them before suing.” (Id. at p. 1510.)

The Second District explained that Tarkington, along with Rose v. City of Hayward (1981) 126 Cal.App.3d 926 and Ramos v. County of Madera (1971) 4 Cal.3d 685, established that administrative relief is not adequate in a class or representative action if it does not apply to the class. Here, the Court concluded that because the available administrative procedures did not provide classwide relief, “then no plaintiff need exhaust them before suing.” (Tarkington, supra, 172 Cal.App.4th at p. 1510.)

The County argued that this was not a class action. However, the Second District explained, it was a representative action. Like the named plaintiff in a class action, ALADS sought relief on behalf of a designated group of persons (i.e., its members). The Court explained that the “material issue is whether the relief available through the administrative process would apply to the class of employees that ALADS represents. It is undisputed that it would not.”

The County also argued that ALADS bargained for the administrative procedure that it later sought to avoid, but the Court found it unreasonable to assume that ALADS agreed to pursue thousands of individual grievances before seeking a judicial ruling that the County had breached its agreement to provide additional compensation to all its members.

The Court accordingly reversed the trial court’s judgment and ruling that ALADS must exhaust its administrative remedies under the MOU before pursuing its action.

B. City’s provision of a hearing before the Board of Rights was the administrative appeal Government Code section 3304(b) requires.

Gonzalez v. City of L.A., 42 Cal. App. 5th 1034 (2nd Dist. 2019)

Facts: In October 2010, Cesar Gonzalez was a Los Angeles Police Department (“LAPD”) sergeant living in San Bernardino County. In October 2010, the San Bernardino Sheriff’s Department (“sheriff’s department”) began a criminal investigation into allegations that in April 2010 Gonzalez supplied alcohol to a minor, and had sex with her. After the sheriff’s department interviewed Gonzalez in September 2010, he informed his LAPD supervisor, Lieutenant David Crew, that he had given the sheriff’s department a voluntary statement about providing alcohol to a minor, but Gonzalez did not initially tell Lieutenant Crew about the sex charge. In October 2010 Gonzalez reported the alcohol charge, but not the sex charge, on the initial department complaint form (No. CF 10-00392). The sheriff’s department criminal investigation was closed later without filing charges. LAPD investigated the allegations.

Gonzalez’s commanding officer Captain Schwartzer first determined that Gonzalez would be suspended for 10 days. After the supplemental investigation resulted in the sustaining of additional allegations (sex with a minor and multiple misleading statements), Captain Schwartzer determined that Gonzalez “committed acts that merit REMOVAL” and notified operations that the original penalty “has been changed from 10 suspension days to a BOARD OF RIGHTS/REMOVAL.” Commander Richard Webb endorsed the complaint (as modified to consolidate the misleading statements into a single allegation), and concurred with the recommended penalty. Both Commander Webb and Captain Schwartzer recommended a penalty of “BOARD OF RIGHTS FOR REMOVAL” to Chief Charlie Beck. Chief Beck adopted the recommendation, sending Gonzalez to a Board of Rights (“Board”) hearing with the proposed penalty of removal.

Gonzalez’s hearing before the Board began in April 2013. In August 2013, the Board reported a unanimous verdict of guilty on (1) providing alcohol to a minor, (2) sexual intercourse with a minor, and (3) providing misleading information on the complaint form. After deliberation, the Board concluded removal was the appropriate penalty. Chief Beck executed a removal order that was served on Gonzalez the following month.

Kosal Uch was a sergeant with the LAPD who was investigated after a minor female reported that in March 2015, a man opened her friend’s car while the minor and her friend were having consensual sex in the backseat, pointed his phone flashlight at her, and recorded her, saying he was a police officer and would arrest them for having sex in public. The minor said reported she was wearing only her bra at the time. The man continued to record her while she got dressed, and then made her and her friend pick up trash. He left without giving her a ticket. Uch’s commanding officer became concerned when Uch wanted to go to the minor’s address to take care of the complaint because of Uch’s “prior … issues up in those hills,” including an earlier complaint by two males Uch had confronted in the same area.

Sergeant Malcolm Collier investigated and amended the initial complaint against Uch (alleging conduct unbecoming an officer) to make allegations for invasion of the minor’s privacy, and for deletion of digital media from his department camera and his cell phone sometime after the date of the incident. Uch’s commanding officer Captain Hamilton adjudicated the allegations, sustained all but one of 14, and recommended Uch be directed to a Board hearing and be removed if found guilty. The area commanding officer concurred. Chief Beck adopted the recommendation of removal, and “[d]irect[ed] [Uch] to a Board of Rights with the proposed penalty of removal from your employment with the Department,” and stated: “This proposed removal and temporary relief from duty are made pending a hearing before and decision by a Board of Rights on the charge(s) set forth below.”

The Board hearing began in August 2016 During four days of testimony, the Board heard from many witnesses, and reviewed exhibits and interviews from the investigation. In September 2016, the unanimous Board found Uch guilty of privacy violations ((1) recording with his personal cell phone the minor in a state of undress, (2) refusing to allow the minor privacy to get to dressed in a timely manner, and (3) taking photos with his personal cell phone of the minor and her partner during their detention) and other counts. The Board prescribed removal and Chief Beck executed the removal order in September 2016.

Gonzalez filed a petition for writ of mandate against the City of Los Angeles (“City”) and Chief Beck. Uch filed a petition for writ of mandate in December 2016, alleging the City failed to provide him with a fair administrative appeal in violation of Government Code section 3304(b). Gonzalez eventually also argued violation of Section 3304(b).

The trial court coordinated the hearing on Gonzalez’s and Uch’s cases because they presented an “identical issue.” After reviewing Morgado v. City and County of San Francisco (2017) 13 Cal.App.5th 1, the trial court issued an order concluding that the Board hearing was not an appeal, and the City therefore failed to provide the terminated officers with an administrative appeal to challenge the final decision to remove them. The trial court granted the petitions, ordering the City to vacate Gonzalez’s and Uch’s terminations and provide them with the opportunity for an administrative appeal. The City and Chief Beck appealed.

Held: The California Second District Court of Appeal considered the consolidated appeal to determine whether the City provided Gonzalez and Uch with the administrative appeal required by Section 3304(b).

The Public Safety Officers Procedural Bill of Rights Act (“POBRA”; Government Code section 3300 et seq.) provides in Section 3304(b): “No punitive action … shall be undertaken by any public agency against any public safety officer … without providing the public safety officer with an opportunity for administrative appeal.” Gonzalez and Uch argued that the City had not made a “final decision” to remove them until after the Board hearing, and so the City must create another procedure to satisfy the statute’s requirement of an administrative appeal from a “final” punitive action.

The Court explained that in Morgado a complaint was made against a San Francisco police officer, the officer’s conduct was investigated, the internal affairs department did further investigation, and a full evidentiary hearing was held by a commissioner. Later, a full commission hearing was held, at the end of which the commission sustained most of the counts against the officer and “decided to terminate his employment.” (Morgado, supra, 13 Cal.App.5th at p. 4 & fn. 3.) Here, the Court stated that Morgado’s facts differed from those in the case here because the disciplinary procedure in Morgado did not “select[ ] or impos[e] … any specific disciplinary sanction” until after the commission hearing, so the hearing “precede[d] any such decision by the City as to which punishment to impose.” (Morgado, supra, 13 Cal.App.5th at p. 12.)

By contrast here, for both Gonzalez and Uch, LAPD identified removal as the specific sanction long before the Board hearing. Because removal was the selected sanction at all levels of the disciplinary process, the officers were not sent to their hearings before the City had made a decision as to which punishment to impose. Thus, the Court held that the City’s provision of a hearing before the Board was the administrative appeal required by Government Code section 3304(b).

Moreover, under the City of Los Angeles Charter (“Charter”), the Chief of Police must order a Board hearing to review the charges and reach a decision. (Charter, volume II, article X section 1070(b)(1), (2).) The Second District found that “[t]he Charter’s requirement of a Board hearing when the Chief selects removal bakes into the standard procedure what POBRA requires: an administrative appeal for the officer to establish a formal record of the circumstances surrounding his removal, and to attempt to convince LAPD to change the sanction.” The Court declined to require more than POBRA mandates. The Court accordingly reversed.

C. Employer not in violation of FEHA by failing to provide accommodations because employee failed to disclose known disability and limitations.

Doe v. Dep’t of Corr. & Rehab., 2019 Cal. App. LEXIS 1278 (4th Dist. Nov. 27, 2019)

Facts: In August 2007, John Doe applied to the California Department of Corrections and Rehabilitation (“CDCR”) for a permanent psychologist position. On his signed application, Doe did not check the box that would have expressed that he had a disability, which stated: “DISABLED—A person with a disability is an individual who … has a physical or mental impairment or medical condition that limits one or more life activities, such as … learning … or working; … has a record or history of such impairment or medical condition; … or is regarded as having such an impairment or medical condition.”

Doe started working for CDCR as a psychologist at Ironwood State Prison (“Ironwood”) in 2012. In 2013, he submitted an accommodation request using CDCR’s standard form. He requested “Time to read and write in a work space that’s quiet to help w/focus and concentration.” In response to the form’s question, “What are your limitations?” he wrote, “(LD NOS) reading, written expression.” “LD NOS” meant “learning disorder not otherwise specified.”

CDCR’s “Return to Work” department, which handled accommodation requests, requested Doe provide medical documentation of the nature and extent of his limitations in order for CDCR to determine which accommodations it could provide. Doe provided a note from his doctor which stated that Doe was “easily distracted and, under stress, can become disorganized.” Doe was subsequently permitted to switch desks to one he found less distracting, but remained unsatisfied.

After Doe took a three-month medical leave “due to stress,” CDCR provided him a quieter, less distracting office. Doe remained unsatisfied, said it was still “very hard to organize [his] work.,” and felt he was being “discriminated against” in the use of work resources.

In October 2013, Doe settled a different harassment lawsuit he had brought against CDCR, receiving a $120,000 payment in exchange for dismissing the suit and release of all claims against CDCR.

According to Doe, retaliation and harassment began in 2014. Doe identified a number of incidents over the next two years which he would later provide as evidence in support of claims under the California Fair Employment and Housing Act (“FEHA”) (Government Code section 12900 et seq.).

Doe submitted a second accommodation form in August 2014, again describing his limitations as “LD-NOS,” and protesting his move to a new yard office location[18] due to what he alleged were negative effects to his asthma and stress level. However, Doe did not provide medical substantiation documentation, instead only suggested following up with his doctor if “further medical information” was needed.

In September 2015, the Return to Work coordinator asked Doe to sign a release of his medical records so she could obtain information about the nature and extent of his limitations. Doe refused to sign the release and directed her to speak to his doctor if the coordinator needed more information.

In April 2016, Doe received a report of separation from CDCR. He was on an extended leave at the time. The separation report advised Doe he should return to his position or be considered absent without leave. Doe submitted his resignation in May 2016.

In July 2016, Doe filed a lawsuit against CDCR asserting FEHA violations. After the parties submitted their evidence and argument, the trial court found no triable issues of material fact, granted CDCR’s motion for summary judgment and entered judgment in their favor.

Held: The California Fourth District Court of Appeal explained that a trial court properly grants summary judgment when there are no triable issues of material fact and the moving party is entitled to judgment as a matter of law. (California Code of Civil Procedure section 437c(c).) The Court added that a “plaintiff’s subjective beliefs in an employment discrimination case do not create a genuine issue of fact; nor do uncorroborated and self-serving declarations.” (King v. United Parcel Service, Inc. (2007) 152 Cal.App.4th 426, 433.) Doe argued on appeal that the trial court erred by summarily adjudicating his FEHA claims because they involved triable issues of material fact.

Discrimination and Retaliation Claims

The Court first addressed FEHA discrimination and retaliation claims. The Court noted that “A prima facie case for discrimination ‘on grounds of physical disability under the FEHA requires [a] plaintiff to show: (1) he suffers from a disability; (2) he is otherwise qualified to do his job; and, (3) he was subjected to adverse employment action because of his disability.’” (Arteaga v. Brink’s, Inc. (2008) 163 Cal.App.4th 327, 344–345.) “[T]o establish a prima facie case of retaliation under the FEHA, a plaintiff must show (1) he or she engaged in a ‘protected activity,’ (2) the employer subjected the employee to an adverse employment action, and (3) a causal link existed between the protected activity and the employer’s action.” (Yanowitz v. L’Oreal USA, Inc. (2005) 36 Cal.4th 1028, 1042.)

The Fourth District explained that both FEHA claims required a showing of an “adverse employment action,” which is one that “materially affects the terms, conditions, or privileges of employment.” (Yanowitz, supra, 36 Cal.4th at pp. 1036, 1051.) “In the case of an institutional or corporate employer, the institution or corporation itself must have taken some official action with respect to the employee, such as hiring, firing, failing to promote, adverse job assignment, significant change in compensation or benefits, or official disciplinary action.” (Roby v. McKesson Corp. (2009) 47 Cal.4th 686, 706, 708.

Doe argued a supervisor subjected him to adverse employment actions by criticizing his work during what he considered to be a “interrogation-like” meeting, ordering a wellness check on him when he was out sick, suspecting him of bringing a cell phone into work (a serious rule violation), and assigning him the primary crisis person on the same day as a union meeting. The Court explained that even assuming Doe’s characterizations were true and the supervisor did everything Doe accused him of and did so maliciously, these actions were merely relatively minor conduct that did not threaten to materially affect the terms, conditions, or privileges of Doe’s job. Moreover, none of these actions resulted in any sort of formal or informal discipline or demotion in job responsibilities. FEHA, the Court added, “does ‘not guarantee employees “a stress-free working environment,”‘” (Arteaga, supra, 163 Cal.App.4th at p. 344) “‘and the mere fact that an employee is displeased by an employer’s act or omission does not elevate that act or omission to the level of a materially adverse employment action.’” (Thomas v. Department of Corrections (2000) 77 Cal.App.4th 507, 511.) The Court thus concluded that without any evidence of an adverse employment action, the trial court was correct to grant summary judgment in favor of CDCR on the discrimination and retaliation claims.

Harassment Claim

The Court concluded that Doe’s FEHA harassment claim likewise failed because the record contained no evidence of conduct that constituted harassment. To prevail on a harassment claim under FEHA, a plaintiff must produce evidence they were subjected to “offensive comments or other abusive conduct” that is (1) based on a “protected characteristic” (here, a claimed disability) and (2) “sufficiently severe or pervasive as to alter the conditions of [his] employment.” (Serri v. Santa Clara University (2014) 226 Cal.App.4th 830, 871.) The Court explained that “[h]arassment claims are based on a type of conduct that is avoidable and unnecessary to job performance.” (Reno v. Baird (1998) 18 Cal.4th 640, 646.)

Doe said the same actions by his supervisor that he cited in support of his discrimination and harassment claims supported his harassment claim. The Court, however, found these actions were objectively not so severe as to “alter the conditions of [his] employment” or create an “‘abusive working environment.’” (Serri, supra, 226 Cal.App.4th at pp. 869–871.) Moreover, each one involved a personnel decision by Doe’s supervisor within the scope of his duties as Doe’s supervisor, and so were not avoidable nor unnecessary to the supervisor’s job performance.

Accommodation Claim

The Court noted that FEHA requires employers to make reasonable accommodations for employees with disabilities: “It is an unlawful employment practice … [f]or an employer … to fail to make reasonable accommodation for the known physical or mental disability of an applicant or employee.” (Government Code section 12940(m)(1).) The Court explained that because Section 12940(m) requires an employer to accommodate only a known disability, the duty of an employer reasonably to accommodate an employee’s handicap does not arise until the employer is aware of respondent’s disability and physical limitations. (Avila v. Continental Airlines, Inc. (2008) 165 Cal.App.4th 1237, 1252.) “The employee bears the burden of giving the employer notice of his or her disability.” (Ibid.)

The Court explained that where the disability, resulting limitations, and necessary reasonable accommodations, are not open, obvious, and apparent to the employer, the employee bears the burden “to specifically identify the disability and resulting limitations, and to suggest the reasonable accommodations.” (Scotch v. Art Institute of California (2009) 173 Cal.App.4th 986, 1013, italics added.) The Court noted that “[r]eliance on medical opinion and an individualized assessment is especially important when the symptoms are subjective and the disease is of a type that varies widely between people.” (Leatherbury v. C&H Sugar Co., Inc. (N.D.Cal. 2012) 911 F.Supp.2d 872, 880; Arteaga, at p. 349 [“An individualized assessment of the effect of an impairment is particularly necessary when the impairment is one whose symptoms vary widely from person to person”].)

Here, the Court found that the information Doe included in his accommodation request and the notes from his doctor he submitted to Return to Work were not sufficient to place CDCR on notice he suffered from a disability covered by FEHA or to inform CDCR of the extent of the limitations his disability caused. First, the information Doe provided to CDCR’s Return to Work department did not suggest that he suffered from asthma or dyslexia. Merely describing his limitations as “LD-NOS” did not identify his disabilities nor specify a diagnosis, and the notes from Doe’s doctor made only vague and generalized references to an “underlying medical condition,” a “chronic work related medical condition,” a “physical disability,” and “migraine headaches.” The doctor’s note that stated Doe was easily distracted and disorganized under stress did not provide sufficient information about his limitations due to asthma and dyslexia. The Court explained that many people, whether or not they suffer from a learning disability, were easily distracted and disorganized under stress.

The Fourth District stated that information about the nature and extent of Doe’s claimed disabilities was crucial to CDCR’s ability to determine whether it was able to reasonably accommodate those disabilities. The Court pointed out that when the Return to Work department made an effort to obtain such information themselves, Doe refused to sign the medical release. The Court concluded the lack of any evidence indicating Doe provided such information to CDCR was fatal to his accommodation claims.

Because the Court found all of Doe’s FEHA claims failed, the Fourth District concluded the trial court properly granted summary judgment, and accordingly affirmed.

D. Plaintiff’s state retaliation claim not precluded by state administrative agency’s decision.

Bahra v. Cnty. of San Bernardino, 2019 U.S. App. LEXIS 38693 (9th Cir. Dec. 30, 2019)

Facts: Plaintiff Eric Bahra worked as a social services practitioner for Defendant San Bernardino County’s Department of Children and Family Services (“DCFS”). DCFS investigates referrals regarding child abuse and provides services to children and families. DCFS has a database that generally keeps track of child abuse information.

In June 2013, Bahra was assigned as the lead investigator to look into abuse allegations brought by a group of children against their former foster parent. He used the DCFS database as part of his investigation. Bahra alleged that he discovered that the foster home at issue had a prior history of child abuse and neglect but that the database did not correctly reveal that history because of typographical errors in past reports and database entries. Bahra informed his manager, Defendant Kristine Burgamy, on the same day that he discovered the database errors. The next day, Bahra found Burgamy and Defendant Nicola Hackett, Deputy Director of the Victorville DCFS office, “rifling through” files on his desk.

In July 2013, the County conducted an “administrative interview” with Bahra to determine whether he had violated any policies, rules, or practices. Bahra then left for a short vacation. When he returned, the County placed Bahra on desk duty. Shortly thereafter, the County placed him on administrative leave pending the outcome of the disciplinary process. The County then conducted a second “administrative interview.” At that interview, Bahra was represented by counsel, and Burgamy and Hackett attended for the County.

In September 2013, Bahra was issued a Notice of Proposed Dismissal, which contained several grounds for termination. The notice also explained that it was a “proposed action only” and that Bahra could respond to his appointing authority, which he did.

Thereafter, a hearing officer conducted an administrative hearing. Bahra was represented by counsel at the hearing, and he submitted another written response to the notice. The hearing officer “gave more credence to the County’s position” and issued Bahra an Order of Dismissal in October 2013. The order contained twelve reasons for dismissal.

Bahra appealed a few days later, and requested an evidentiary hearing pursuant to San Bernardino Personnel Rule X, Section 9. That hearing took place over 14 days during 2014. In total, the hearing included 27 witnesses, 2,045 pages of testimony, 154 pages of post-hearing briefs, and 89 exhibits.

Throughout the hearing, Bahra alleged that his termination was retaliatory and that Defendants had engaged in a “witch hunt” against him. Bahra primarily argued at the hearing that he was terminated in retaliation for his union organizing activity. In October 2012, Bahra circulated a petition protesting his supervisors’ management style and the “hostile working environment” in the Victorville DCFS Office. At least nine DCFS employees signed the petition, which was addressed to Human Resources. Several witnesses at the hearing, including Bahra, testified about this petition.

In July 2015, the hearing officer issued a decision. The hearing officer concluded that Bahra had not produced evidence of retaliation and that five allegations against Bahra were substantiated. The hearing officer recommended that the Civil Service Commission of the County of San Bernardino (“Commission”) uphold Bahra ‘s termination and deny his appeal.

The Commission adopted the hearing officer’s report and sustained DCFS’s order of dismissal. The Commission also advised Bahra of his right to seek judicial review through a writ of mandamus under California Code of Civil Procedure section 1094.5.

However, Bahra did not seek a writ under Section 1094.5. Instead, he filed an action in federal court, alleging that DCFS, Burgamy, and Hackett (“Defendants”) fired him in retaliation for his whistleblowing activities, in violation of California Labor Code section 1102.5 (“Section 1102.5”) and 42 U.S.C. section 1983 (“Section 1983”). The District Court granted summary judgment for Defendants, holding in part that the Commission’s decision precluded Bahra’s claims. Bahra appealed.

Held: The Ninth Circuit Court of Appeals considered Bahra’s state Section 1102.5 claim. The Court explained that in California, decisions by administrative agencies typically have preclusive effect, provided that they have a sufficiently “judicial character” and that the elements of claim or issue preclusion are satisfied. Murray v. Alaska Airlines, 50 Cal. 4th 860, 114 Cal. Rptr. 3d 241, 237 P.3d 565, 568-69 (Cal. 2010).^[19] However, courts will not give preclusive effect to an administrative decision if doing so would contravene the intent of the California legislature. Fahlen v. Sutter Cent. Valley Hosps., 58 Cal. 4th 655, 168 Cal. Rptr. 3d 165, 318 P.3d 833, 845-46 (Cal. 2014); see also State Bd. of Chiropractic Exam’rs v. Superior Ct, 45 Cal. 4th 963, 89 Cal. Rptr. 3d 576, 201 P.3d 457, 464 (Cal. 2009) (California courts do not give preclusive effect to the results of agency proceedings “if doing so is contrary to the intent of the legislative body that established the proceeding in which [preclusion] is urged.” (quoting Pac. Lumber Co. v. State Water Res. Control Bd., 37 Cal. 4th 921, 38 Cal. Rptr. 3d 220, 126 P.3d 1040, 1055 (Cal. 2006))).

The Ninth Circuit noted that this legislative-intent exception was recently applied in Taswell v. Regents of Univ. of Cal.^[20] by a state Court of Appeal. In Taswell, the California Fourth District Court of Appeal held that administrative findings by a state agency do not preclude claims for retaliation brought under Section 1102.5. Accordingly, the Ninth Circuit explained that unless it was “convinced” that the California Supreme Court would disagree with Taswell, the federal Circuit Court was bound by Taswell’s holding.^[21]

The Court noted that in Murray v. Alaska Airlines, 50 Cal. 4th 860, 114 Cal. Rptr. 3d 241, 237 P.3d 565, 568-69 (Cal. 2010), the California Supreme Court considered the preclusive effect of a federal agency’s findings when the plaintiff had chosen not to pursue a formal adjudicatory hearing or subsequent judicial review. Murray held that the plaintiff’s retaliation claim was precluded. Even so, the Ninth Circuit concluded that Murray did not require the Circuit Court to give preclusive effect here to the Commission’s order with respect to Bahra’s Section 1102.5 claim because Murray applied a different test than the test applied in Taswell. Murray considered whether the federal administrative proceeding possessed a “sufficiently judicial character,”^[22] whereas Taswell considered the legislative intent of Section 1102.5. Because Taswell and Murray assessed different legal questions, the Ninth Circuit found that they were not inconsistent.

Moreover, the Ninth Circuit concluded that the California Supreme Court would likely agree with Taswell. The federal court explained that Taswell applied principles derived from California Supreme Court precedents, including Fahlen, to resolve the question whether preclusion applied to the plaintiff’s Section 1102.5 claims. The Ninth Circuit observed that Fahlen, decided after Murray, recognized the intent of the California legislature to create “distinct fora and procedures” for retaliation claims, separate and apart from administrative procedures that address adverse employment actions.^[23]

The Ninth Circuit consequently held that the Commission’s order did not preclude Bahra’s Section 1102.5 claim, and accordingly reversed the District Court’s ruling on the state claim.

However, the Ninth Circuit did not extend its conclusion regarding legislative intent to Bahra’s Section 1983 claim. The Ninth Circuit noted that Bahra did not argue that giving an administrative proceeding preclusive effect in a later Section 1983 action was contrary to legislative intent. Observing that the Ninth Circuit does “not ordinarily consider matters ‘that are not specifically and distinctly argued,’”^[24] the Court declined to conduct that analysis sua sponte.

Moreover, the Court found that the Commission’s ruling had a “sufficiently judicial character” because Bahra had been provided with an “adequate opportunity to litigate.” Murray, 237 P.3d at 569-70 (quoting United States v. Utah Constr. & Mining Co., 384 U.S. 394, 422 (1966)). The Court pointed to the comprehensive evidentiary record and the availability of judicial review, as well as the testimony of several witnesses pertaining to Bahra’s hostile work environment petition, as supporting the Court’s finding that Bahra had “full opportunity to litigate the propriety of his termination before the administrative agency.” The Court therefore concluded that Bahra’s Section 1983 claim was precluded by the Commission’s order and accordingly affirmed the District Court’s ruling on that claim.

In sum, the Ninth Circuit affirmed dismissal of the federal Section 1983 claim, reversed the dismissal on the state Section 1102.5 claim, and remanded the case for further proceedings.

For a more detailed discussion of this case, please see Client Alert Vol. 35, No. 2, available at www.jones-mayer.com.

PURSUIT IMMUNITY

Sheriff’s Office immune from liability for injuries arising from vehicular pursuit, because Sheriff had in place policy regarding such pursuits that required training.

Riley v. Alameda Cnty. Sheriff’s Office, 2019 Cal. App. LEXIS 1267 (1st Dist. Dec. 17, 2019)

Facts: In October 2014, William Riley was riding a motorcycle through a green light on High Street at International Boulevard in Oakland, when he was struck by a car that ran a red light while fleeing from deputies employed by the Alameda County Sheriff’s Office (Sheriff).[25] The suspects in the car that struck Riley were suspected of theft and the car had been reported as stolen. Riley traveled on the hood of the car for some distance, until the car crashed. Riley suffered serious bodily injury.

Riley filed suit against the Sheriff, individual deputies, and the suspects and other persons associated with them, and later filed his Second Amended (and operative) Complaint in February 2016. In June 2016, defaults were entered against the suspects and others associated with them. In July 2016, the trial court sustained the Sheriff’s demurrer without leave to amend as to three of the causes of action in the Complaint. The court also dismissed the individual officers from the action.

In December 2018, the trial court denied Riley’s motion for summary adjudication and granted the Sheriff’s motion for summary judgment under Vehicle Code section 17004.7. The trial court concluded the Sheriff was entitled to immunity under Section 17004.7. Riley appealed.

Held: The California First District Court of Appeal noted that under Government Code section 815, a “public entity is not liable for an injury, whether such injury arises out of an act or omission of the public entity or a public employee or any other person.” (Section 815(a).) Vehicle Code section 17001 creates a statutory exception to public entities’ general tort immunity, providing: “A public entity is liable for death or injury to person or property proximately caused by a negligent or wrongful act or omission in the operation of any motor vehicle by an employee of the public entity acting within the scope of his employment.” However, “‘Section 17004.7 in turn limits the liability that … [S]ection 17001 otherwise permits by affording immunity to public agencies that adopt and implement appropriate vehicle pursuit policies.’” (Ramirez v. City of Gardena (2018) 5 Cal.5th 995, 999.) Section 17004.7 provides a public agency immunity from liability for collisions involving vehicles being pursued by peace officers if the agency “adopts and promulgates a written policy on, and provides regular and periodic training on an annual basis for, vehicular pursuits … .” (Section 17004.7(b)(1); see also Ramirez, at p. 997.) On appeal, Riley argued that the Sheriff’s policy, promulgation of the policy, and training did not comply with Section 17004.7.

The Sheriff’s Pursuit Policy and Distribution Process

The Court described the Sheriff’s pursuit policy. The Court noted that in April 2014 the Sheriff adopted a revised version of General Order 2.01, the Sheriff’s policy on vehicle pursuits (“Policy”), which described the Policy’s purpose as “[t]o establish guidelines for sworn members during vehicle pursuits.” The stated overall “POLICY” statement is as follows: “It shall be the policy of this agency to apprehend law violators at every opportunity. Deputies engaged in vehicle pursuits of actual or suspected violators shall proceed in a manner consistent with the safety and well being of all persons. It is recognized that all pursuit situations are different and actions taken during any pursuit may reasonably and necessarily vary. When circumstances are such that the safety of any person is gravely endangered because of the pursuit, it shall be terminated in all but the most exigent circumstances. In all cases, a supervisor, if available, shall monitor and control the pursuit.”

The Court explained that the Policy clear expressed that its intent was to comply with Section 17004.7, asserting that “This General Order meets the criteria set forth in [Section 17004.7,] subdivision (c)” and that the minimum standards described therein “are clearly outlined in this order.” The Policy specified procedures applicable to vehicle pursuits, and had a section called “GUIDELINES FOR INITIATING, CONTINUING OR TERMINATING PURSUITS” which listed 17 “factors [that] should be considered to determine whether a pursuit should be initiated, continued, or terminated.” The Policy provided that “Supervisory and management control will be exercised over all motor vehicle pursuits.” The Policy also declared, “The Sheriff’s Office shall provide regular and periodic training on an annual basis for all sworn personnel in the handling of high-speed vehicle pursuits. The instruction will be commensurate with the high-speed vehicle pursuit training developed by the [Commission on Peace Officer Standards and Training] as required by Penal Code Section 13519.8. The training shall be conducted by the Regional Training Center through the use of the ‘Pursuit Policy Training Attestation Form’ … .”

The Court stated that the Sheriff uploaded the Policy into the agency’s electronic Document Management System (“DMS”) pursuant to procedures set forth in the Sheriff’s General Order 2.01. When the Policy was uploaded into the DMS, all peace officers employed by the Sheriff automatically received electronic notice of the Policy. General Order 2.01 directed that all disseminated General Orders, such as the Policy, “will be reviewed in a timely manner and signed off electronically in the DMS” by all officers. The electronic sign-off screen stated, “Enter your Username and Password in the spaces provided below. The entry of your Username indicates that you have read and understood this document.”

General Order 2.01 also stated that “Commanding Officers and/or Unit Commanders shall also be responsible for ensuring that every Agency member under their command electronically signs for each such [policy] issuance. The [Regional Training Center] will notify Unit Commanders regarding employees that have not reviewed their DMS mailbox in a timely manner. Each affected employee must electronically sign for the document, indicating he/she is responsible for reviewing and following the applicable Policy and Procedure.” The Court observed that the Sheriff’s records showed that, at the time of the pursuit at issue in the present case, approximately 80% of the agency’s peace officers had completed the electronic certification for the Policy.

Promulgation

Section 17004.7(b)(2) provides, “Promulgation of the written policy under paragraph (1) shall include, but is not limited to, a requirement that all peace officers of the public agency certify in writing that they have received, read, and understand the policy. The failure of an individual officer to sign a certification shall not be used to impose liability on an individual officer or a public entity.”

Riley argued that the Policy failed to meet the promulgation requirement for a number of reasons, but the Court rejected them all. Riley argued the Policy failed to satisfy Section 17004.7 because the Policy did not contain the officer certification requirement, but the Court explained that the section’s language did not dictate that the certification requirement be stated in the pursuit policy itself. Instead, Section 17004.7(b)(2) merely specifies that “Promulgation of the written policy … shall include … a requirement that all peace officers of the public agency certify in writing that they have received, read, and understand the policy.” Here, the Court found that the Sheriff presented evidence showing that the requirement was contained in General Order 2.01, which required peace officers to sign off on all policies, including the Policy here.

Riley also argued that there was no evidence the Sheriff required officers to certify they read and understood the Policy, but the Court observed that General Order 2.01 required that the Policy be “reviewed in a timely manner” and “signed off electronically in the DMS,” and that the DMS electronic sign-off screen stated, “Enter your Username and Password in the spaces provided below. The entry of your Username indicates that you have read and understood this document.” Moreover, a screenshot in evidence provided evidence that officers were required to certify at the time of the pursuit that they “received, read, and understand” (Section 17004.7(b)(2)) the Policy.

Riley’s argument that the electronic signoff process did not constitute “in writing” within the meaning of Section 17004.7(b)(2), i.e., on paper. However, the First District observed that If the Legislature intended “writing” to refer only to handwriting on paper, it would have so required in Evidence Code section 250, which provides that “‘Writing’ means handwriting, typewriting, printing, photostating, photographing, photocopying, transmitting by electronic mail or facsimile, and every other means of recording upon any tangible thing, any form of communication or representation, including letters, words, pictures, sounds, or symbols, or combinations thereof, and any record thereby created, regardless of the manner in which the record has been stored.”

Riley further argued that the Policy was not promulgated within the meaning of Section 17004.7(b)(2) because the Sheriff’s evidence demonstrated approximately 20% of officers failed to complete the electronic certification. The Court noted that the California Supreme Court in Ramirez addressed the question of “whether a public agency may receive [S]ection 17004.7’s immunity only if every peace officer it employs has, in fact, provided the written certification.” (Ramirez, at p. 997.) Ramirez held “that the agency’s policy must require the written certification, but 100 percent compliance with that requirement is not a prerequisite to receiving the immunity,” (Ibid.) reasoning that the plain meaning of the statutory language “is that the policy must contain the requirement, not that every peace officer must meet the requirement.” (Id. at pp. 1000–1001.)

Here, the First District concluded that Riley had not shown there was a triable issue of material fact on this aspect of the promulgation issue. The Court noted that the Sheriff presented evidence showing it “conscientiously implemented its pursuit policies” (Ramirez, at p. 1001), and made an extensive effort to distribute the Policy and obtain responses from officers. All officers were notified of the Policy by the DMS, and General Order 2.01 required the officers to certify they read and understood the Policy. General Order 2.01 required commanding officers to ensure compliance with the electronic certification requirement, and the order required the Regional Training Center to notify the commanding officers about non-compliance. Further, the Sheriff submitted a declaration from the employee responsible for the DMS stating that, “The general practice throughout the units is that the unit commander or the designee of the unit commander would either request an audit of the DMS for the unit, or perform the audit him or herself to determine if officers had any items in their DMS inbox [that] needed to be signed off on. Unit commanders would discuss sign offs during shift briefing known as ‘muster.’ They would instruct officers to review and sign off on unsigned items.”

The Court agreed with the trial court’s conclusion that the Sheriff made a “prima facie” showing it has “a system in place that is reasonably designed to apprise all peace officers of the” Policy. The Sheriff presented evidence that compliance with the certification requirement was required of all officers, and that unit commanders followed up with officers who had not complied. Riley presented little to the contrary. Although the Sheriff’s failure to obtain certifications from roughly 20% of the officers indicated to the Court that there were ways the Sheriff could improve its follow-up process, the Court found no basis in the record to conclude that there was such a failure to implement the policy that its adoption was “a mere formality.” (See Ramirez, supra, 5 Cal.5th at p. 1000 [characterizing promulgation obligation in section 17004.7 as “requirements that the public entity implement the policy through training and other means to ensure it is not a mere formality”].)

The Court thus determined that the trial court properly concluded there was no triable issue of material fact as to Riley’s claim that the Sheriff failed to promulgate the Policy within the meaning of Section 17004.7(b)(2).

Section 17004.7(c) Standards

The Court explained that “[i]n order for the immunity to apply under [S]ection 17004.7, a public entity must adopt a pursuit policy that clearly and with specificity sets forth standards to guide officers in the field.”[26] Section 17004.7 specifies twelve “minimum standards” that “[a] policy for the safe conduct of motor vehicle pursuits by peace officers shall meet … .” (Section 17004.7(c)) Riley argued the Policy failed to satisfy two of the “minimum standards” in Section 17004.7(c), relating to determination of speed and air support.

Minimum standard number seven directed that pursuit policies should “[d]etermine the factors to be considered by a peace officer and supervisor in determining speeds throughout a pursuit. Evaluation shall take into consideration public safety, peace officer safety, and safety of the occupants in a fleeing vehicle.” (Section 17004.7(c)(7).)

Although the Policy did not expressly state “factors to be considered … in determining speeds throughout a pursuit” or include a section specifically regarding speed, the Court agreed with the trial court that “a fair reading of the [P]olicy shows that it directs officers to consider appropriate factors, including speed, when making a decision to initiate, continue, or terminate a pursuit.” The First District noted that the part of the Policy entitled “GUIDELINES FOR INITIATING, CONTINUING OR TERMINATING PURSUITS” listed 17 “factors [that] should be considered to determine whether a pursuit should be initiated, continued, or terminated.”[27] The Court explained: “…when a deputy is determining whether to initiate, continue, or terminate a pursuit, the most critical question is whether it is safe to achieve or maintain the speed necessary for pursuit. Accordingly, by listing the factors relevant to determining whether to initiate, continue, or terminate a pursuit, the Policy is in effect directing deputies to consider those same factors in determining speed.” Moreover, Section 17004.7(c) standards were modeled on the Commission on Peace Officer Standards and Training (“POST Commission”) Guidelines, which did expressly list factors to consider in determining speed of pursuit.

The Court therefore concluded the Policy did effectively “control and channel the pursuing officer’s discretion” in determining the speed of pursuit. (Payne v. City of Perris (1993) 12 Cal.App.4th 1738, 1747; see also Ramirez, supra, 14 Cal.App.5th at pp. 826–827.) The Court stated that denying the Sheriff immunity under Section 17044.7 due to the Policy’s failure to expressly state the listed factors that should be considered in determining speed would elevate form over substance, without furthering the Legislature’s goal of encouraging fewer and safer pursuits.

Turning to the air support standard, the Court noted that minimum standard number eight in Section 17004.7(c)(8) requires pursuit policies to “[d]etermine the role of air support, where available. Air support shall include coordinating the activities of resources on the ground, reporting on the progress of a pursuit, and providing peace officers and supervisors with information to evaluate whether or not to continue the pursuit.” Riley contended the Policy failed this standard.

The Court explained that the Policy stated that air support “may be utilized to support ground operations during a vehicle pursuit” and specified, among other things, the information to be provided by air support and how the information should be used by the Sheriff’s units on the ground. Rejecting Riley’s assertion, the Court determined that the Policy was actually substantially more detailed than the POST Guidelines on the topic of air support, and the Policy plainly complied with the language of Section 17004.7(c)(8).

Training Requirement

Riley argued that the Sheriff’s training failed to include consideration of speed limits. The Court explained that Section 17004.7(b) mandates that agencies provide “regular and periodic training on an annual basis” regarding pursuit policies, and Section 17004.7(d) specifies that such training “shall include, at a minimum, coverage of each of the subjects and elements set forth in subdivision (c) and that shall comply, at a minimum, with the training guidelines established pursuant to Section 13519.8 of the Penal Code.” Section 13519.8(b) provides that “[t]he course or courses of basic training for law enforcement officers and the guidelines shall include adequate consideration of each of” 15 subjects, including ”speed limits.”

The Court reviewed a training video that, according to the deputy sheriff responsible for developing the Sheriff’s training, provided training for compliance with Section 17044.7. The deputy sheriff declared, “These training videos cover each of the subjects and elements set forth in [Section 17004.7(c)] and comply with the training guidelines pursuant to Penal Code section 13519.8.” The Court noted that the video listed the factors that should be considered in deciding whether to initiate, continue, or terminate a pursuit, including “speeds traveled.” As with the Policy, the Court interpreted that portion of the training video as providing guidance to deputies in determining speed, because those factors effectively aided deputies in determining whether it is safe and appropriate to drive fast enough to maintain pursuit. Among other speed-related references, the Court also observed on-screen text in the video that cautioned “SLOW DOWN!” and “CHECK YOUR SPEED,” while the narrator described law enforcement fatalities resulting from “single vehicle collisions,” adding “we’re driving too fast for the conditions.”

The Court found Vehicle Code section 17004.7 consistent with Penal Code section 13519.8’s use of the term “speed limits,” finding that the statutory language and legislative history did not support construing “speed limits” in Penal Code section 13519.8(b) to require training on matters not required to be included in the pursuit policy under the section 17004.7, subdivision (c), minimum standards. The First District concluded that because the Sheriff showed that deputies were trained in accordance with the Policy, the Sheriff showed that the training included adequate consideration of speed limits as required by Penal Code section 13519.8(b). Thus, the trial court did not err in granting the Sheriff’s motion for summary judgment/adjudication on the basis of immunity under Section 17004.7.

The First District Court of Appeal had thus rejected Riley’s assertions that the Sheriff’s policy, promulgation of the policy, and training did not comply with Section 17004.7, and concluded that the trial court had properly held that the Sheriff was immune under Section 17004.7. Accordingly, the First District affirmed the trial court’s judgment.

[1] People v. Appleton (2016) 245 Cal.App.4th 717, 727.

[2] The Attorney General also argued that Ricardo P. did not control because Lent and Ricardo P. addressed conditions of probation, and neither should apply to terms of mandatory supervision. However, the Second District explained that courts dealing with this issue have consistently applied the Lent test to mandatory supervision terms.

[3] For significantly more detail on the Court’s analysis of the state-created danger doctrine as it applied to the three officers, please see Client Alert Vol. 34, No. 41, available at www.jones-mayer.com..

[4] In Okin, the plaintiff Okin called 911 reporting abuse. She showed responding police her bruises and told them she had been, among other things, choked that day. She asked officers to tell the perpetrator to stop beating her. The officers did not arrest the perpetrator, discussing football instead with him. The Second Circuit determined that the officers provided “official sanction” to the abuse and affirmatively increased Okin’s danger, thereby violating Okin’s due process rights.

[5] See United States v. Seybold, 726 F.2d 502, 504 (9th Cir. 1984).

[6] 490 U.S. 386 (1989).

[7] Sergeant Simmont testified that he asked for and received permission from Rubio’s father to search the house. The father denied being asked for permission.

[8] Health & Safety Code section 11370.1.

[9] Or if it is required by a statute enacted by two-thirds of each house of the Legislature. (See article 1, Section 28(f)(2) of the California Constitution). Section 625.6 did not pass each house by a two-thirds margin.

[10] Pearson v. Callahan, 555 U.S. 223, 236 (2009).

[11] Penal Code section 630 et seq.

[12] See Lance W., supra, 37 Cal.3d at p. 888, fn. 8: “Ballot summaries and arguments are accepted sources from which to ascertain the voters’ intent and understanding of initiative measures”.

[13] Service Employees Internat. Union, Local 1000 v. Department of Personnel Admin., 142 Cal.App.4th 866, 870 (3rd Dist. 2006).

[14] Coachella Valley Mosquito & Vector Control Dist. v. California Public Employment Relations Bd., 35 Cal.4th 1072, 1080 (2005).

[15] Administrative autonomy denotes the concept that courts should not interfere with an agency determination until the agency has reached a final decision.

[16] Judicial efficiency represents the notion that overworked courts should decline to intervene in an administrative dispute unless absolutely necessary.

[17] City of San Jose v. Operating Engineers Local Union No. 3 (2010) 49 Cal.4th 597, 609; Coachella Valley, supra, 35 Cal.4th at pp. 1080–1081.

[18] Doe’s move was a part of Ironwood’s overall transition to the “complete care model,” which reorganized the prison’s work spaces so its various healthcare professionals (e.g., psychologists, nurses, and dental practitioners) would be located closer to the inmates they served.

[19] Also see Runyon v. Bd. of Trs., 48 Cal. 4th 760, 108 Cal. Rptr. 3d 557, 229 P.3d 985, 994 (Cal. 2010).

[20] 23 Cal. App. 5th 343 (4th Dist. 2018).

[21] Poublon v. C.H. Robinson Co., 846 F.3d 1251, 1266 (9th Cir. 2017) (quoting Miller v. County of Santa Cruz, 39 F.3d 1030, 1036 n.5 (9th Cir. 1994)).

[22] Id. at 568.

[23] 318 P.3d at 846 & n.10.

[24] See Lopez-Vasquez v. Holder, 706 F.3d 1072, 1080 (9th Cir. 2013) (quoting Koerner v. Grigas, 328 F.3d 1039, 1048 (9th Cir. 2003)).

[25] Riley did not dispute the deputies had been directed to terminate the pursuit before the collision.

[26] Alcala v. City of Corcoran, 147 Cal.App.4th 666, 674–675 (5th Dist. 2007).

[27] The guideline factors include: “[t]he seriousness of the originating incident or violation, and the relationship to community safety;” “[s]afety of the public in the area of the pursuit;” “[s]afety of the pursuing deputies;” “[v]olume of vehicular traffic;” “[v]olume of pedestrian traffic;” “[s]peeds involved;” “[t]ime of day;” “[w]eather conditions;” “[r]oad conditions;” “[t]ype of area, e.g., rural, urban, suburban, schools, business, residential, etc;” “[f]amiliarity of the deputy and supervisors with the area of the pursuit;” “[q]uality of radio communications;” “[t]he capability of the patrol vehicle;” “[t]he capability of the deputy driving the patrol vehicle;” “[l]ength of the pursuit;” “[p]resence of a hostage in the vehicle being pursued;” and suspect identification such that “later apprehension can be accomplished.”