In a 6-3 decision on April 27, 2020, the United States Supreme Court in N.Y. State Rifle & Pistol Ass’n v. City of N.Y.[1] dismissed as moot a claim for relief alleging that a New York City (“City”) rule violated the plaintiffs’ Second Amendment rights.  In a relatively concise opinion, the Court majority concluded that, after the Court had granted certiorari, subsequent changes to the City’s rule and New York state law provided the “precise relief” required.

In its more expansive opinion, the dissent determined that the majority incorrectly dismissed the case as moot. Turning to the merits, the dissent maintained that the original City rule violated the Second Amendment by burdening the same core Second Amendment right that the Court had recognized in District of Columbia v. Heller, 554 U. S. 570 (2008).

Background[2]

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 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.

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.,[3] 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.  Prior to the Court’s disposition, Petitioners had argued that they could still ask for damages with respect to the City’s old rule in the instant case before the Court.  The Court noted that Petitioners did not seek damages in their complaint; in fact, the possibility of a damages claim was not raised until well into the litigation in the current case before the Court.  The Supreme Court explained 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,[4] 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).  ‘“As long as the parties have a concrete interest, however small, in the outcome of the litigation, the case is not moot.”’  Ibid. (emphasis added).”

In the dissent’s view, the amended City ordinance and the new State law gave petitioners most of what they sought in their complaint, but the new laws did not give them complete relief.  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.[5]  It followed that because it was not “impossible for a court to grant any effectual relief whatever” to petitioners in the form of damages, the case was not moot.[6]  The dissent added that a challenge to an allegedly unconstitutional law does not become moot with the enactment of new legislation that reduces but does not eliminate the injury originally alleged.

Having determined the case was not moot, the dissent next addressed the merits of the claim.

Dissent’s Discussion of 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.[7]  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.[8]  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 dissent observed that although a lawful gun owner can sometimes practice at a range using a gun that is owned by and rented at the range, the same model gun that the person owned might not be available at a range.  Moreover, each individual gun might have its own characteristics.

Having decided that the right at issue here was related to the same right recognized in Heller, the dissent stated that the City would need to justify the restrictions its rule imposed.  However, the City offered no such justifications, such as evidence of laws in force around the time of the adoption of the Second Amendment that prevented gun owners from practicing outside City limits.

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.

HOW THIS AFFECTS YOUR AGENCY

As the dissent noted, since McDonald, the lower courts have decided many cases involving Second Amendment challenges to a variety of federal, state, and local laws.  Many of these cases have failed.  The Supreme Court has been asked to review many such cases, but the Court had denied the vast majority of such requests.  Agencies should note that, as Justice Kavanaugh mentioned, several Second Amendment cases with petitions for certiorari are pending before the Court.  Accordingly, it can be anticipated that the Court may accept an appropriate case to address Heller’s treatment by lower federal courts and state courts.

As always, if you wish to discuss this matter in greater detail, please feel free to contact me at (714) 446–1400 or via email at jrt@jones-mayer.com.

Information on www.jones-mayer.com is for general use and is not legal advice. The mailing of this Client Alert Memorandum is not intended to create, and receipt of it does not constitute, an attorney-client-relationship.

[1] 2020 U.S. LEXIS 2528 (U.S. Apr. 27, 2020).

[2] The facts are taken largely from the dissent’s more expansive text.

[3] 494 U. S. 472, 482-483 (1990).

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

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

[6] Chafin, supra, 568 U.S. at 172.

[7] 554 U. S., at 635.

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

On April 23, 2020, the Ninth Circuit Court of Appeals, in Wilk v. Neven,[1] held that prison officials violated a prison inmate’s constitutional right to protection from violence under the Eighth Amendment.  The Court found that all of the officials were aware, through firsthand information or through representatives, that there was a substantial risk of serious harm to the inmate, yet disregarded that risk by failing to respond reasonably.  The Ninth Circuit also 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.

Background

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.[2]  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 acknowledged its obligation to construe liberally Wilk’s pro se filings.  Wilk’s complaint failed initial screening, but the District Court allowed an amended complaint to go forward.

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.

Discussion

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).[3]  “It is not, however, every injury suffered by one prisoner at the hands of another that translates into constitutional liability for prison officials responsible for the victim’s safety.”[4]  Specifically, 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.  A fact-finder may infer subjective awareness from circumstantial evidence.[5]

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.[6]  “[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.  Specifically, 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.

Leavitt conceded that he attended the classification meeting, was involved in the decision to move Wilk back to Unit 8, and knew that Nunley, housed in Unit 7, could potentially have some interaction with the individuals housed in Unit 8.  However, Leavitt argued that he could not be liable because he took reasonable action to protect Wilk and, after Wilk was moved to Unit 8, did not perceive an excessive or intolerable risk of serious injury to Wilk.  Leavitt admitted that he might have made “a clerical mistake regarding assigning Nunley to the enemy list,” but claimed it was not his job to update the prison’s records system.

Nash and Neven contended they did not attend the October 29 classification meeting and were not aware of the threat Nunley posed to Wilk.  They acknowledged that individuals housed in Unit 7 could potentially have contact with individuals housed in Unit 8.

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.[7]  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 because the sole purpose of that meeting was for Wilk to express his fear and report Nunley’s threat, 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.  Characterizing the facts of Wilk’s case as “materially similar”[8] to the Court’s previous cases applying Farmer, the Court found the facts here did not involve the sort of “novel factual circumstances” contemplated by Hope. 536 U.S. at 741.

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.

The Ninth Circuit noted that throughout proceedings in the District Court, while he was still incarcerated, Wilk struggled to obtain discovery from defendants, who resisted turning over crucial documents such as his institutional file and their records of housing classification meetings.  The Ninth Circuit remanded to provide Wilk another opportunity to seek the materials he requested previously, which had the potential to identify or exclude the defendants.  To assist with this process, the Court of Appeals encouraged the District Court to appoint Wilk counsel.

HOW THIS AFFECTS YOUR AGENCY

Agencies should observe the basic standard as expressed in Farmer: a prison official violates an inmate’s Eighth Amendment right only if that official is “deliberately indifferent” – meaning if the official is (1) subjectively aware of a substantial risk of serious harm to an inmate; and (2) disregards that risk by failing to respond reasonably.  Agencies should also note that the Ninth Circuit placed the facts of this case as comfortably in the “clearly established” category for purposes of the Circuit’s qualified immunity analysis, lining up the case firmly under Farmer and its cited progeny.  For training purposes with the goal of reducing circumstances that provide opportunity for inmate attacks, agencies may wish to compare the parallels and distinctions in the facts of the Ninth Circuit’s cited cases, in addition to those set forth in Wilk v. Neven.

Lastly, agencies should also observe that, under Hope, “Officials can still be on notice that their conduct violates established law even in novel factual circumstances.”  Hope, 536 U.S. at 741.

As always, if you wish to discuss this matter in greater detail, please feel free to contact me at (714) 446–1400 or via email at jrt@jones-mayer.com.

Information on www.jones-mayer.com is for general use and is not legal advice.  The mailing of this Client Alert Memorandum is not intended to create, and receipt of it does not constitute, an attorney-client-relationship.

[1] 2020 U.S. App. LEXIS 13079 (9th Cir. Apr. 23, 2020)

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

[3] 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).

[4] Farmer, 511 U.S. at 834.

[5] Id., at 842.

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

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

[8] Hope, 536 U.S. at 741.

The California Fourth District Court of Appeal held, in Smith v. LoanMe, Inc.,[1] that a plaintiff failed to state a claim in arguing that a defendant business violated a provision in the California Invasion of Privacy Act (“Privacy Act”) (Penal Code section 630, et seq.) by recording its call with the plaintiff.  The Court concluded that the section applies only to recording by third-party eavesdroppers, not to recording by a participant to the phone call.

Background

Defendant LoanMe, Inc. (“LoanMe”) is a business that provides personal and small business loans, including a loan to the wife of plaintiff Jeremiah Smith.  In October 2015, a LoanMe employee called the telephone number provided to LoanMe by Smith’s wife to discuss the loan.  Smith answered the call on a cordless telephone and informed the caller that his wife was not available, and the call then ended.  The call lasted approximately 18 seconds.  LoanMe recorded the call.  Three seconds into the call LoanMe “caused a ‘beep tone’ to sound.”  LoanMe had a practice where a beep tone would play at regular 15 second intervals on all of its outbound calls.  LoanMe did not orally advise Smith that the call was being recorded.  Smith also did not sign a contract granting LoanMe consent to record calls.

In September 2016, Smith filed a class action complaint seeking statutory damages and injunctive relief[2] against LoanMe, alleging that LoanMe violated Section 632.7 by recording a phone call with Smith without his consent while he was using a cordless telephone.  Smith further claimed that a “beep tone” at the beginning of the call did not constitute sufficient notice that LoanMe was recording the call.  On the parties’ stipulation, the trial court ordered a bifurcated bench trial to resolve the “the beep tone issue.”  After listening to a recording of the phone call, the trial court concluded that the beep tone provided Smith sufficient notice under Section 632.7 that the call was being recorded and that Smith implicitly consented to being recorded by remaining on the call.  The trial court entered judgment against Smith.

The California Fourth District Court of Appeal requested supplemental briefing on the issue of whether Section 632.7 applies to the recording of a phone call by a participant in the phone call or instead applies only to recording by third-party eavesdroppers.  The Court asked that the briefs address the question in light of the plain language of Section 632.7, its legislative history, and its relationship with other provisions of the Privacy Act.

Discussion

The Fourth District Court of Appeal explained that in interpreting a statute’s language to determine the Legislature’s intent, courts do not examine that language in isolation.  Courts look at the context of the statutory framework as a whole in order to determine its scope and purpose and to harmonize the various parts of the enactment.  (Meza v. Portfolio Recovery Associates, LLC (2019) 6 Cal.5th 844, 856.) “The meaning of a statute may not be determined from a single word or sentence; the words must be construed in context, and provisions relating to the same subject matter must be harmonized to the extent possible.”  (Lungren v. Deukmejian (1988) 45 Cal.3d 727, 735.) The Court also expressed that interpretations that would result in absurd consequences that the Legislature did not intend must be avoided.

Development of Section 632 Provisions

The Court observed that the Legislature enacted the Privacy Act in 1967 “to protect the right of privacy of the people of this state” from technological advances that “led to the development of new devices and techniques for the purpose of eavesdropping upon private communications.”  (Section 630.) The Legislature considered eavesdropping on private communications a serious threat that “cannot be tolerated in a free and civilized society.”  (Id.; Kearney v. Salomon Smith Barney, Inc. (2006) 39 Cal.4th 95, 115 [describing the Privacy Act as “a broad, protective invasion-of-privacy statute”].)

Subdivision (a) of Section 632 provides: “A person who, intentionally and without the consent of all parties to a confidential communication, uses an electronic amplifying or recording device to eavesdrop upon or record the confidential communication, whether the communication is carried on among the parties in the presence of one another or by means of a telegraph, telephone, or other device, except a radio, shall be punished by” a fine, imprisonment, or both.  Under Section 632(b), “person” includes businesses for purposes of the statute.  Section 637.2,[3] also part of the original 1967 legislation, “explicitly created a new, statutory private right of action, authorizing any person who has been injured by any violation of the invasion-of-privacy legislation to bring a civil action to recover damages and to obtain injunctive relief in response to such violation.”  (Kearney, supra, 39 Cal.4th at pp. 115–116.) Any person injured by a violation of the Privacy Act may recover $5,000 per violation. (Section 637.2(a)(1).)

The Court observed that in 1985, the Legislature responded to the development of “cellular radio telephone” technology by enacting Section 632.5 as part of the Cellular Radio Telephone Privacy Act of 1985 (a subpart of the Privacy Act).  In 1990, the Legislature amended the 1985 legislation and renamed it the “Cordless and Cellular Radio Telephone Privacy Act of 1985.”  The amendment added Section 632.6, which extended the protections Section 632.5 provides for cellphone communication to communications involving cordless telephones.

Specifically, Section 632.5 provides in relevant part: “Every person who, maliciously and without the consent of all parties to the communication, intercepts, receives, or assists in intercepting or receiving a communication transmitted between cellular radio telephones or between any cellular radio telephone and a landline telephone shall be punished by” a fine, imprisonment, or both.[4]  Section 632.6’s parallel provision states:  “Every person who, maliciously and without the consent of all parties to the communication, intercepts, receives, or assists in intercepting or receiving a communication transmitted between cordless telephones … , between any cordless telephone and a landline telephone, or between a cordless telephone and a cellular telephone shall be punished by” a fine, imprisonment, or both.  (Section 632.6(a).)[5]

The Court of Appeal further observed that in 1992, the Legislature amended the Cordless and Cellular Radio Telephone Privacy Act of 1985 to add Section 632.7.  Section 632.7(a) provides in relevant part:  “Every person who, without the consent of all parties to a communication, intercepts or receives and intentionally records, or assists in the interception or reception and intentional recordation of, a communication transmitted between two cellular radio telephones, a cellular radio telephone and a landline telephone, two cordless telephones, a cordless telephone and a landline telephone, or a cordless telephone and a cellular radio telephone, shall be punished by” a fine, imprisonment, or both.

Summarizing the three provisions, the Court explained that Sections 632.5, 632.6, and 632.7 are all parts of the Cordless and Cellular Radio Telephone Privacy Act of 1985.  Section 632.5 prohibits the malicious and nonconsensual interception or receipt of cellular phone calls.  Section 632.6 prohibits the malicious and nonconsensual interception or receipt of cordless phone calls.  Section 632.7 prohibits the nonconsensual interception or receipt and intentional recording of cellular and cordless phone calls.  The Court observed that Section 632.7 differs from Sections 632.5 and 632.6 in that it removes the element of malice, adds the element of (nonconsensual) intentional recording, and covers both cellular phones and cordless phones in a single code provision.

Interpretation of Section 632.7

LoanMe argued that Section 632.7 clearly and unambiguously applied only to third-party eavesdroppers, while Smith contended that the section applied to the parties to the phone call as well as to third-party eavesdroppers.

Considering the “plain meaning” of the section’s text, the Court explained that Section 632.7 requires that the interception or receipt of the communication be without the parties’ consent.  However, the Court explained, “the parties to a phone call always consent to the receipt of their communications by each other—that is what it means to be a party to the call (or at least that is part of what it means).”  The Court therefore determined that the parties to a phone call are incapable of violating Section 632.7, because they could not intercept or receive each other’s communications without all parties’ consent.

The Court concluded that this interpretation of Section 632.7’s language was in alignment with the plain meaning of Sections 632.5 and 632.6, whose language Section 632.7 incorporated.  The Court explained that Sections 632.5 and 632.6, like Section 632.7, could not apply to the parties to a phone call, because Sections 632.5 and 632.6 apply only to someone who intercepts or receives a communication without all parties’ consent.  Thus, Sections 632.5 and 632.6 prohibit only malicious third-party eavesdropping on cordless or cellular phone calls.[6]

The Fourth District added that an interpretation of Sections 632.5 and 632.6 that encompassed the parties to a call would lead to absurd results.  Such an interpretation would mean a party to a call would have to receive another party’s communication without all parties’ consent, and because a party would have to receive the other party’s communication maliciously; the Court found both notions “absurd and unintelligible.”

The Court thus found that Sections 632.5 and 632.6 must be interpreted as limited to third-party eavesdroppers, because they applied only to persons who intercept or receive communications without all parties’ consent.  The Court explained that Section 632.7 contained the same restriction in the same language (“without the consent of all parties … intercepts or receives”), and because the Court was required to interpret Section 632.7 in a way that harmonized it with the statutory scheme of which it is a part (Meza, supra, 6 Cal.5th at p. 856), the Fourth District concluded that Section 632.7 clearly and unambiguously applies only to third-party eavesdroppers, not to the parties to a phone call.

Smith argued that because the Section 632.7 uses both of the terms “intercepts” and “receives,” those terms must refer to different types of conduct, the section must apply to parties to a call as well as third-party eavesdroppers.  The Fourth District found this argument lacked merit because it did not resolve the issue that Section 632.7 applies only to persons who receive (or intercept) communications without all parties’ consent.  The Court found that federal decisions (including Brinkley v. Monterey Financial Services, LLC (S.D.Cal. 2018) 340 F.Supp.3d 1036) made the same error.

The Court also found legislative history supported its interpretation that all three sections were intended to apply only to third-party eavesdroppers.  The Court stated: “When the Legislature enacted section 632.5 in 1985 and section 632.6 in 1990, the Legislature’s sole concern was that eavesdroppers could more easily access conversations occurring over cellular and cordless phones than over landline phones.”  The Court found Section 632.7’s similar language to the other sections supported its interpretation for Section 632.7 also.  Moreover, the Court explained that “[t]hroughout the legislative history of section 632.7, the Legislature demonstrates its concern with eavesdropping on wireless communications, and it never shows any concern about recording by parties.  We therefore conclude that the legislative history supports our interpretation of section 632.7 as limited to third party eavesdroppers.”

Here, the Court explained that LoanMe called Smith.  LoanMe consented to Smith’s receipt of LoanMe’s communications (asking Smith, “Is Mrs. Smith there?”), and Smith consented to LoanMe’s receipt of Smith’s communications (Smith replied, “No.”).  The Court concluded that, as a party to the call, LoanMe was incapable of violating Section 632.7.  Because Section 632.7 did not prohibit LoanMe from intentionally recording the call, the Court concluded that Smith failed to state a claim against LoanMe under Section 632.7.  The Fourth District Court of Appeal accordingly affirmed the trial court’s dismissal of Smith’s lawsuit.

HOW THIS AFFECTS YOUR AGENCY

While the Fourth District’s decision precludes the application of Penal Code section 632.7 to parties to a call, agencies should take note of the point discussed in Footnote 6 that Section 632 – unlike Sections 632.5, 632.6, and 632.7 – can apply to the parties to a communication (not just third-party eavesdroppers) because that section refers to the use of an electronic amplifying or recording device to eavesdrop or record, not merely the receipt of such communication which the Court found to be inherent to being a party to a call.  With this decision, the Court made a fine distinction between these two sections.  We will continue to monitor this case to determine if California takes this case up for review.

As always, if you wish to discuss this matter in greater detail, please feel free to contact James R. Touchstone at (714) 446–1400 or via email at jrt@jones-mayer.com.

Information on www.jones-mayer.com is for general use and is not legal advice.  The mailing of this Client Alert Memorandum is not intended to create, and receipt of it does not constitute, an attorney-client-relationship.

[1] 2019 Cal. App. LEXIS 1282 (4th. Dist. Dec. 20, 2019).

[2] Smith argued for the first time on appeal that “LoanMe infringed on [his] right to privacy guaranteed by the California Constitution,” but the Fourth District did not address it because Smith did not include a constitutional cause of action in his complaint and did not litigate the issue in the trial court.

[3] Not to be confused with Section 632.7, whose interpretation is the main issue in this case.

[4] Section 632.5(a).

[5] See also Section 632.6(c), defining cordless telephones as “consisting of two parts—a ‘base’ unit which connects to the public switched telephone network and a handset or ‘remote’ unit—which are connected by a radio link.”

[6] The Fourth District noted that the requirement that the alleged wrongdoer intercept or receive the communication without all parties’ consent distinguishes Sections 632.5, 632.6, and 632.7 from Section 632, which provides that “[a] person who, intentionally and without the consent of all parties to a confidential communication, uses an electronic amplifying or recording device to eavesdrop upon or record the confidential communication” shall be punished by a fine, incarceration, or both. (Italics added.) The Court explained that Section 632 can apply to the parties to a communication because parties to a phone call do not always consent to the use of an electronic amplifying or recording device to eavesdrop upon or record the communication (although parties to a phone call always consent to each other’s receipt of their communications).

In the case of People v. Guzman,[1] the Supreme Court of California found that a surreptitious recording was properly admitted into evidence in a defendant’s trial for committing a lewd and lascivious act upon a child.  The Court concluded that the “Right to Truth-in-Evidence” provision in the state constitution enacted as a result of the passage of Proposition 8 abrogated a Penal Code provision prohibiting the admission of evidence obtained from recording a confidential communication.

Background

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 her 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.  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.  Guzman sought review of the decision by the California Supreme Court.

Discussion

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.[2]  “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.

Did the Exclusionary Remedy of Section 632(d) Survive the Passage of the Truth-in-evidence Provision in 1982?

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 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).  The Court noted that the ballot materials[3] related to Proposition 8 included this statement from the Legislative Analyst:  “Under current law, certain evidence is not permitted to be presented in a criminal trial or hearing.  For example, evidence obtained through unlawful eavesdropping or wiretapping, or through unlawful searches of persons or property, cannot be used in court.  This measure generally would allow most relevant evidence to be presented in criminal cases, subject to such exceptions as the Legislature may in the future enact by a two-thirds vote.” [4]  (Ballot Pamp., Primary Elec. (June 8, 1982) analysis of Prop. 8 by Legis. Analyst, p. 32.)  The Court explained that because the ballot material specifically singled out “evidence obtained through unlawful eavesdropping,” which was then “not permitted to be presented in a criminal trial or hearing,” and told voters that Proposition 8 would change the law so as to “allow most relevant evidence to be presented in criminal cases,” the natural inference was that Proposition 8 would permit “evidence obtained through unlawful eavesdropping” to be admitted in criminal cases.  “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 clear language and history of the constitutional amendment meant 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.

The Court rejected Guzman’s various arguments contrary to the Court’s conclusion.

In analyzing a constitutionally protected right and an associated exclusionary rule requiring suppression in violation of the right, the Court pointed to concordant reasoning in Lance W.   The Court observed that Article I, section 13 of the California Constitution protects the people’s right “to be secure in their persons, houses, papers, and effects against unreasonable seizures and searches.”  (California Constitution, article I section 13.) In Lance W., the Supreme Court distinguished between the right protected by article I, section 13 and the associated exclusionary rule requiring suppression of evidence seized in violation of that right.  (Lance W., supra, 37 Cal.3d at pp. 886–887.) There, the Court explained, “the substantive scope of [article I, section 13] remains unaffected by Proposition 8” and “[w]hat would have been an unlawful search or seizure in this state before the passage of that initiative would be unlawful today.”  (Id. at p. 886.) However, the same could not be said of the exclusionary rule, which was “eliminate[d]” by Proposition 8.  (Lance W., supra, 37 Cal.3d at p. 886.) Lance W. explained that because the exclusionary rule is simply a “remedy for violations of the search and seizure provision[],” Proposition 8 could eliminate the exclusionary remedy without affecting the “substantive scope” of article I, section 13.  (Lance W., supra, 37 Cal.3d at pp. 886–887.)

Similarly, the Court here reasoned that Proposition 8 could eliminate the exclusionary remedy of Section 632(d) without affecting the substantive scope of privacy of article I, section 1, or even more narrowly, the privacy of telephone conversations.  (Lance W., supra, 37 Cal.3d at pp. 886–887.) The Court noted that even after the passage of Proposition 8, secret recording of telephone conversations is still prohibited and is punishable by a fine of up to $2,500, imprisonment up to a year, or both.  Moreover, those injured by secret recordings may bring civil actions against the perpetrators to recover damages.  Thus, the Court determined that Proposition 8’s repeal of the Section 632(d)’s exclusionary remedy as it applied to criminal proceedings did not vanquish the right to private phone conversations itself; the right and the exclusionary remedy were not equivalent.

In sum, the Supreme Court found that the Right to Truth-in-Evidence provision abrogated Section 632(d) when Proposition 8 passed in 1982, and the Court’s first inquiry was resolved.  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.

Did Subsequent Amendments of Section 632 Revive the Exclusionary Remedy?

The California 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.

HOW THIS AFFECTS YOUR AGENCY

Agencies should be cognizant of the fact that surreptitious recording of telephone conversations is still prohibited by Penal Code Section 632.  Those who violate Section 632 are subject to fines, imprisonment, or both.  Moreover, those injured by such recordings made in violation of Section 632 may bring a civil action to recover damages.  Recordings made in violation of Section 632, however, are, pursuant to the Guzman decision, admissible in criminal proceedings pursuant to Section 28(f)(2) of the California Constitution.

As always, if you wish to discuss this matter in greater detail, please feel free to contact James R. Touchstone at (714) 446–1400 or via email at jrt@jones-mayer.com.

Information on www.jones-mayer.com is for general use and is not legal advice.  The mailing of this Client Alert Memorandum is not intended to create, and receipt of it does not constitute, an attorney-client-relationship.

[1] People v. Guzman, 2019 Cal. LEXIS 8937 (Dec. 5, 2019).

[2] Penal Code section 630 et seq.

[3] 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”.

[4] The Court noted that the Legislative Analyst also advised the voters that Proposition 8 “could not affect federal restrictions on the use of evidence.” (Ballot Pamp., supra, at p. 32.), and the Court commented that federal law imposed no restriction on the admission of the recording in this case.

On October 8, 2019, Governor Gavin Newsom approved Assembly Bill 1600 (“AB 1600”) to amend California Evidence Code Sections 1043 and 1047 related to motions to discover peace officer or custodial officer personnel records, more commonly known as Pitchess motions.  The amendment effectively shortens notice requirements and accelerates the timeframe for responding to such motions in criminal actions.  The bill also creates an exception to existing law prohibiting the disclosure of the personnel records of peace officers, including supervisorial officers, who were not a party to the “fracas”.  These amendments will take effect January 1, 2020.

Changes to the California Evidence Code

California Evidence Code Section 1043(a) prescribes the timeframes in which Pitchess motions are to be noticed, served and filed, in addition to when papers opposing a motion and reply papers are to be filed.  AB 1600 modifies these timing requirements for Pitchess motions filed in criminal proceedings only and will closely resemble California Rule of Court, Rule 4.111 Pretrial motions in criminal cases.  Evidence Code Section 1043(a)(2) will provide that Pitchess motions must be served and filed at least 10 court days before the hearing. Additionally, all opposing papers shall be filed at least 5 court days, and all reply papers at least 2 court days, before the hearing.

California Evidence Code Section 1047 provides that records of peace officers or custodial officers, including supervisorial officers, who either were not present during the arrest or had no contact with the party seeking the disclosure from the time of the arrest until the time of booking, who were not present at the time the conduct at issue is alleged to have occurred within a jail facility, would not be subject to disclosure.  AB 1600 amends Section 1047 to provide an exception to the exception if a supervisorial officer whose records are being sought had direct oversight of a peace officer or custodial officer and issued command directives or had command influence over the circumstances at issue.  If these prerequisites are met, the supervisorial officer’s records shall be subject to disclosure pursuant to Section 1045 if:  1) the peace officer or custodial officer under supervision was present during the arrest; 2) had contact with the party seeking disclosure from the time of the arrest until the time of booking; or 3) was present at the time the conduct at issue is alleged to have occurred within a jail facility.

Changes to the California Code of Civil Procedure

AB 1600 will amend Code of Civil Procedure Section 1005(a)(6) by removing Pitchess motions filed in criminal proceedings from the current 16 court day notice requirements.  Pitchess motions filed in criminal proceedings will be required to follow the shortened notice and filing requirements California Evidence Code Section 1043(a), as amended by AB 1600.

HOW THIS AFFECTS YOUR AGENCY

As of January 1, 2020, agencies will have 6 fewer court days’ notice of a Pitchess motion filed in a criminal proceeding.  Not only does the agency have much less notice, but the attorney handling these motions for the agency has 4 fewer court days to oppose the motion.  Additionally, the peace officer or custodial officer whose records are being sought has days fewer notice to hire an attorney of their own, if they wish.  Therefore, it is imperative that your agency inform its Pitchess attorney of a noticed Pitchess motion, deliver the documents served on the agency to the attorney, and notify the affected officer(s) immediately.  Failing to do so may result in waiving any opposition to the Pitchess motion if the opposition is not timely filed and the potential unwarranted disclosure of confidential peace officer personnel records.

Under California Code of Civil Procedure Section 1005, notice and filing requirements for Pitchess motions in civil proceedings will not change.  Pitchess motions in civil cases will still be required to be filed and served at least 16 court days before the hearing, while oppositions must be filed at least 9 court days before the hearing and replies must be filed at least 5 court days before the hearing.

As always, if you wish to discuss this matter in greater detail, please feel free to contact Gregory P. Palmer at (714) 446–1400 or via email at gpp@jones-mayer.com.

Information on www.jones-mayer.com is for general use and is not legal advice.  The mailing of this Client Alert Memorandum is not intended to create, and receipt of it does not constitute, an attorney-client-relationship.

The Ninth Circuit Court of Appeals held in Bahra v. Cnty. of San Bernardino[1] that a state administrative agency’s ruling did not preclude a plaintiff’s California Labor Code section 1102.5 action alleging retaliation for whistleblowing activities.

Background

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.

Discussion

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).[2]  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.[3] 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.[4]

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.  The Court explained that Murray applied a different test than the test applied in Taswell.  Murray considered whether the federal administrative proceeding possessed a “sufficiently judicial character,”[5] 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.

The Court also noted that Murray expressly limited the scope of its holding in Murray to the particular factual and procedural circumstances there, and the particular provision of the statutory scheme at issue there.  Murray thus did not hold that all administrative agency findings preclude claimants from asserting Section 1102.5 claims in civil actions.  The Ninth Circuit also noted that the Murray Court had federalism concerns that were not appropriate in the case here.

Finally, 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.[6]

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,’”[7] 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.

HOW THIS AFFECTS YOUR AGENCY

In the Ninth Circuit’s view, the California Supreme Court has not addressed the issue presented in this case directly as yet. Specifically, the Court stated, “In other words, Taswell and Murray assessed different legal questions.  Thus, they are not inconsistent.”  Bahra at p. 9.  What the Bahra Court failed to note, however, is that the entirety of the Taswell court’s analysis with respect to Section 1102.5’s legislative history and intent is as follows:  “Although an employee seeking to pursue a claim for damages in court for a violation of either Labor Code section 1102.5 . . .  must exhaust administrative remedies before filing suit (Campbell v. Regents of University of California, supra, 35 Cal.4th at p. 317), the language of those statutes clearly reflects a legislative intent to permit a claim for damages in a court action.  Thus, . . . , an employee seeking relief under Labor Code section 1102.5 . . . is not required to exhaust judicial remedies by filing a petition for a writ of mandamus before filing a civil action, and the administrative decision resulting from the process of exhausting administrative remedies does not have preclusive effect by application of the res judicata doctrine.”  Taswell at p. 362 (Citations to other statutes omitted).  Accordingly, reliance upon Taswell for the broad propositions cited by the Court in Bahra is somewhat suspect and would appear to contradict the plain language of the Taswell decision.  Nevertheless, unless the California Supreme Court decides this issue in a manner that contradicts the determinations in Taswell and Bahra, agencies may see more whistleblower retaliation claims pursuant to Section 1102.5.

As always, if you wish to discuss this matter in greater detail, please feel free to contact James R. Touchstone at (714) 446–1400 or via email at jrt@jones-mayer.com.

Information on www.jones-mayer.com is for general use and is not legal advice.  The mailing of this Client Alert Memorandum is not intended to create, and receipt of it does not constitute, an attorney-client-relationship.

[1] Bahra v. Cnty. of San Bernardino, 2019 U.S. App. LEXIS 38693 (9th Cir. Dec. 30, 2019).

[2] Also see Runyon v. Bd. of Trs., 48 Cal. 4th 760, 108 Cal. Rptr. 3d 557, 229 P.3d 985, 994 (Cal. 2010).

[3] 23 Cal. App. 5th 343 (4th Dist. 2018).

[4] 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)).

[5] Id. at 568.

[6] 318 P.3d at 846 & n.10.

[7] 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)).

In the case entitled Crawford v. City of Bakersfield,[1] the Ninth Circuit Court of Appeals vacated a district court’s judgment in favor of a police officer after a jury trial found in favor of the officer for the fatal shooting of an individual that was attacking the officer with a metal club.  During the incident, which was the subject of the litigation, Michael Dozer (decedent) attempted to set a person on fire with gasoline and then strike the officer in the head with a metal object.  The finding of the Court was that the district court abused its discretion by not allowing the decedent’s mother to testify about her son’s past mental illness issues and his treatment during the trial.  All of this information regarding Dozer’s alleged mental illness, and his treatment therefore, was unknown to the officer at the time of the shooting.

Facts

In 2014, Elsa Torres was getting gasoline for her car at a gas station when the decedent, Michael Dozer, approached her and removed the gasoline nozzle from her car as it was filling.  Dozer proceeded to spray gasoline on her and on the ground surrounding both of them.  Miss Torres’ children were in the car at the time.  Dozer then set the gasoline on fire.  Miss Torres was able to escape the flames and drive away in her car.  Miss Torres called the police and told dispatch there was a man “trying to burn us.”  She also relayed to dispatch 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.  Stringer was also informed that the woman “had been lit on fire and that she put it out and left the scene.”

Upon arriving on scene, Officer Stringer spoke with Torres.  He did not observe any burns on her.  However, 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.”  Before his backup arrived, Officer Stringer approached Dozer so that he could hear what Dozer was saying.  As he approached Dozer, 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 he was under the influence of a narcotic.  He also concluded that the situation would “most likely…escalate quickly,” thus he 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 moving “very quickly” towards the officer and picked up a horseshoe-shaped bike lock, raised it over his head and started “charging” towards the officer.  Officer Stringer ordered Dozer to drop the metal lock as he attempted to back up.  Officer Stringer drew his firearm as Dozer charged towards 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.  Other witnesses gave some variations in their testimony regarding the specifics of the encounter between Dozer and Officer Stringer.

Trial Proceedings

During the trial, the jury learned about the police officer’s training when it involves suspects exhibiting potential signs of mental illness.  California POST teaches officers that when a person exhibits erratic and irrational behavior and attempts self-harm, these are signs of mental illness and that an officer should “slow-down, wait for back-up, speak slowly, move slowly, turn down their portable radio, and consider ways of subduing the person using minimal force.”  In addition, plaintiff’s expert opined that Dozer’s behavior was consistent with a person that is “mentally ill or experiencing a mental crisis.”  According to the plaintiff’s expert, when dealing with a person with mental illness, the objective of an officer is to “calm them down” and “just get them handcuffed, with the least amount of force possible.”  In the Dozer encounter, plaintiff’s expert faulted Officer Stringer for not waiting for backup officers, especially since Dozer was not “actively” committing any crime at the time.  Defendant’s expert disagreed and found that Dozer continued to be “an immediate threat to the citizens” and that he also confronted the officer with the imminent threat of deadly force by swinging the metal bicycle lock.

During the trial, the plaintiff’s attorney also attempted to introduce testimony from Dozer’s mother, Leslie Crawford, regarding Dozer’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, however.  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.  Moreover, the district court concluded that she was not qualified to render her opinion regarding his mental status by stating he was schizophrenic.  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.

During closing arguments, Dozer’s attorney stated that it should have been apparent to any reasonable officer that Dozer was emotionally disturbed and that shooting Dozer was unreasonable.  With regards to Dozer’s mental illness, defense counsel pointed out the lack of evidence regarding Dozer’s mental illness since very little was produced that supported the allegation that Dozer was mentally ill.

The jury found in favor of Officer Stringer.  Plaintiff appealed to the Ninth Circuit.

Discussion

The Ninth Circuit 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 Plaintiff 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 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.]  That analysis requires balancing the ‘nature and quality of the intrusion on the individual’s Fourth Amendment interests against the countervailing governmental interests at stake.’”  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, 253 Cal. Rptr. 97, 763 P.2d 948, 956 (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 it had “‘refused to create two tracks of excessive force analysis, one for the mentally ill and one for serious criminals,’ [but] 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 with the following analysis: “‘[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.  The Court did not explain how the encounter would have been managed by the officer if Dozer was exhibiting the same “peculiar” behavior due to being under the influence of a controlled substance.

HOW THIS AFFECTS YOUR AGENCY

Despite assertions to the contrary, the Ninth Circuit, in effect, has created a two-track analysis to force applications:  one approach for a suspect who is not mentally ill and one approach involving any suspect alleged to be mentally ill at the time of the force application.  The decision is very troubling since the Court now has imposed what appear to be additional duties on officers when dealing with any suspect that may be acting “peculiar” and could “possibly” be mentally ill.  One can only hope that the analysis applied by the Ninth Circuit in this circumstance will work equally in favor of officers who have been placed in a position of using force, as recognized by the case entitled Boyd v. City & Cty. of San Francisco, 576 F.3d 938, 944 (9th Cir. 2009), which found that “[W]here what the officer perceived just prior to the use of force is in dispute, evidence that may support one version of events over another is relevant and admissible.”

Moreover, the Court only tangentially addressed the issue of self-defense by the officer when he was being charged by the suspect with a metal bicycle lock (metal club).  While the case was focused on the evidentiary issue, the Court appeared to dismiss the officer’s attempts to “de-escalate” the situation by speaking with the suspect whom he later learned was mentally ill.  The Court did not recognize that the potential violent threat that Dozer posed was still viable as long as he was not contained and that there were ample potential victims in the area.  The Court concluded that the situation was static and that the officer had ample time to await his request for urgent back up.  In a situation that “tense, uncertain, and rapidly evolving,” the Court appeared to utilize hindsight analysis to dictate tactics to the officer- a troubling perspective.

As always, if you wish to discuss this matter in greater detail, please feel free to contact James R. Touchstone at (714) 446–1400 or via email at jrt@jones-mayer.com.

Information on www.jones-mayer.com is for general use and is not legal advice.  The mailing of this Client Alert Memorandum is not intended to create, and receipt of it does not constitute, an attorney-client-relationship.

[1] 2019 U.S. App. LEXIS 37056 (9^th Cir. 2019)