In the case entitled U.S. v. Grey, the Court of Appeals for the Ninth Circuit affirmed a district court’s order granting a criminal defendant’s motion to suppress evidence seized during a search of his property.  The Court held that when law enforcement officers are asked to assist in the execution of an administrative warrant authorizing the inspection of a private residence, they violate the Fourth Amendment when their “primary purpose” in executing the warrant is to gather evidence in order to support an ongoing criminal investigation, rather than to assist the inspectors with the administrative warrant.  The lone dissenting judge held that, regardless of the deputies’ subjective motives for being present during an inspection warrant, the correct inquiry is whether the deputies’ actions exceeded the permissible scope of a protective sweep.

Facts

In 2017, the City of Lancaster began to investigate Franz Grey for possible municipal code violations regarding his residence.  Looking at the home from the street, one could see multiple tarps that covered the house and that some of the fences and walls exceeded the permissible height.  There was also electrical wiring running to a metal fence.  Standing outside the property, it was difficult to determine, due to the multiple tarps and debris, if the fence was electrified or to determine if there were other municipal code violations.  A City code enforcement officer attempted to speak with Grey on more than one occasion, but Grey refused to assist him with any of his inquiries about his home and the possible code violations.

Several months later, the code enforcement officer issued administrative citations to Grey for property violations.  For the next several months, Grey appealed the citations and made continuous phone calls and sent multiple faxes to the City.  Code enforcement staff expressed safety concerns due to Grey’s incessant behavior and the unknown electrical wiring going to the fence.  In March 2018, two code enforcement officers went to the Grey house to ascertain if there were any specific municipal code violations.  Upon their arrival at the house, they saw the multiple tarps surrounding the premises, a large canopy structure covering the driveway, a large pole with a light attached and electrical wiring along the top of the fence.  They ultimately determined that the fence was not electrified.

During their visit to his property, Grey spoke with the code enforcement officers and admitted to “fortifying” his home due to problems with his neighbors.  One of the officers saw several parked cars on the property and believed Grey was running an unlawful auto repair business on his property.  The officer believed, based upon his conversation with Grey and his observations of the property, that Grey would not correct the violations and that Grey could pose a threat to code enforcement officers if they entered onto his property.  Soon thereafter, the code enforcement officer met with the City’s assistant city attorney and other members of the code enforcement team and it was decided that an inspection was necessary to determine if Grey’s property was safe.

Criminal Investigation

In 2018, one of Grey’s neighbors called the sheriff’s department to report that Grey had been firing a gun into the air on the July 4^th holiday.  The neighbor also reported that Grey was exhibiting odd behavior by stringing up tarps on his property and installing flood lights.  The neighbor stated that Grey had shown him a large amount of methamphetamine and an AK-47 rifle, a Glock handgun, a snub-nose revolver, and parts to guns.  The neighbor also stated that he saw Grey fire guns on his property and had seen him carrying guns on his person.  He further relayed that Grey had installed a pole camera and that he might have electrified his fence.  He told the deputy that initially he did not want to get involved so that is why he did not report Grey to the authorities.  However, he believed Grey was the person who had made a false allegation of child abuse to the authorities so even though he thought Grey may be mentally ill, the neighbor was no longer going to tolerate his behavior.  The next day, the deputy went and spoke with other neighbors who stated Grey was “weird,” “unhinged,” “not all there,” and “strange.”  The deputy also met with the code enforcement team and they stated that Grey was “strange” and assumed he had a mental illness.

During his investigation, the deputy discovered that Grey had a criminal history of felony driving under the influence, multiple felony drug arrests and had been convicted of voluntary manslaughter.  The deputy also discovered that there had been calls for service to Grey’s house regarding the firing of a weapon.  The deputy filed a police report with his sergeant, in which he stated that he believed Grey was a felon in possession of a weapon and ammunition, and that he had fired weapons on his property.  He also felt that Grey was in possession of a controlled substance.  The report was approved by his sergeant.  However, at that time the sergeant did not feel there was enough probable cause to get either an arrest warrant for Grey or a search warrant of his residence.

LASO personnel later learned from the assistant city attorney that she was going to apply for an administrative warrant, and due to Grey’s possible possession of firearms, she was going to ask the sheriff’s department for a security detail to assist during the administrative search.  It was believed that Grey was not in compliance with the City’s municipal code and that the inspection warrant was necessary in order to determine whether dangerous condition existed on the property.  Furthermore, the assistant city attorney felt that deputies would be needed for the service of the warrant due to Grey’s possible interference with the inspection and that the deputies should be permitted to forcibly enter the property if Grey refused to allow the inspectors onto the property.  The inspection warrant was signed by a judge allowing the search and the use of the deputies during the inspection of the property.

Prior to the service of the inspection warrant, the deputies learned that the City had an inspection warrant signed by a superior court judge and was ready to be served.  Accordingly, the sergeant in charge of the criminal investigation of Grey filed an “operation plan” for the service of that warrant since it involved the use of deputy personnel.  It was also determined by the sergeant that if Grey was present during the inspection, he was to be arrested and to be questioned about the ongoing criminal investigation.

On May 3, 2018, the city inspectors and deputies went to Grey’s house to serve the inspection warrant.  In the past, the sheriff’s department usually only sent one deputy to assist with inspection searches. However, in this instance, they sent nine deputies.  Upon their arrival, Grey was contacted by the deputies.  They convinced him to open the gate and then placed him under arrest for negligent discharge of a firearm and felon in possession of a firearm.[1]  Grey was held in the back of a police car and was questioned regarding items that may be found in the house.  The purpose of the inspection warrant was not explained to him at that time.

The deputies entered Grey’s home after he was being held in the police car.  It was determined that they were in his house for about twenty minutes, or longer.  According to the deputies, the purpose of their entry into his house was to ensure that it was safe.  The deputies later on testified during the evidentiary hearing that they did not touch anything and that they observed in plain view multiple handguns, rifles, firearm parts, ammunition, drug paraphernalia and a large amount of white powder that resembled methamphetamine.  Based upon these observations, the deputies sought a criminal search warrant for Grey’s house.  After the house was made secure, the inspectors entered the house and discovered numerous violations of the municipal code, including hazardous conditions, non-permitted construction and fire hazards.  Several hours later, the deputies executed a criminal search warrant at Grey’s house.  During that time, Grey was transported to the sheriff’s station for questioning and to eventually be formally arrested.

Grey was charged in federal court as a felon in possession of firearms and ammunition and in possession of an unregistered firearm.  Grey filed a motion to suppress evidence arguing that the initial search of his home violated his Fourth Amendment rights since the deputies used a pretext (assist the code enforcement officers with their inspection warrant) to conduct a criminal search of his home.

The trial court agreed with Grey and ruled that the deputies used an administrative warrant to enter Grey’s home without a criminal search warrant for the purpose of gathering evidence for their criminal case.  The district court found several factors to support Grey’s contention.  These same factors were recited by the Court of Appeal in their decision:  1) there was a criminal investigation initiated at the same time the inspection warrant was being sought; 2) the deputies had already concluded that Grey had violated the law by having a gun and using it; 3) the deputies concluded that they did not have enough evidence to support an arrest or a search warrant; 4) the deputies knew they would be asked by the city to assist with the execution of the inspection warrant; 5) the deputies never took time to develop their criminal case further once they knew of the inspection warrant; 6) the same deputies that were conducting the criminal investigation were the same ones being used for the inspection (warrant) search; 7) the deputies expected to interview Grey during the inspection warrant; 8) sending nine deputies to the search showed it was for criminal purposes; 9) the deputies arrested and questioned Grey prior to searching his place; 10) the “protective sweep” took almost twenty minutes and items were touched and moved in the house and 11) the deputies took pictures of incriminating items while they were in his house for the protective sweep.  The trial court granted Grey’s motion to suppress the evidence.

Court of Appeals Analysis

In their decision affirming the lower court, the Court of Appeals explained the necessity of probable cause in order for a search warrant to be issued.  However, the necessity of probable cause is not required with administrative searches that are issued pursuant to a regulatory scheme as long as the searches meet reasonable legislative or administrative standards, i.e. an inspection of residential premises to ensure compliance with a housing code.  The determination regarding the reasonableness of the warrant is usually an objective inquiry, except in the case of administrative searches and special needs searches.  In these cases, the court will look for the “actual motivation” for the administrative search.  The court will attempt to ascertain the “primary purpose” of the search:  was the primary purpose of the search for a regulatory matter or was it for a criminal purpose?  Here, the Court determined that the deputies’ execution of the inspection warrant was unreasonable under the Fourth Amendment since their “primary purpose” in executing the warrant was to gather evidence in support of its criminal investigation, rather than to assist the inspectors.

The Government argued that even though the deputies had an “impermissible motive” for the search, the sweep of Grey’s home would have occurred regardless, and the criminal evidence would have been discovered.  Specifically, the deputies would have made the lawful observations when they were doing their protective sweep of the house.  The Court was not persuaded by the argument and found that the degree of the deputies’ search (protective sweep) was intrusive.  The Court further reasoned that their intrusiveness was motivated by their desire to find evidence of a crime and not a “quick and limited search of the premises…conducted to protect the safety of police officers or others.”

Significantly, the Court of Appeals focused upon the “primary object” or “primary purpose” test concerning administrative warrants for private residences.  The Court cited to the Supreme Court decision, Michigan v. Clifford (464 U.S. 287 (1984)), in which the Supreme Court held “[i]f the primary object of the search is to gather evidence of criminal activity, a criminal search warrant may be obtained only on a showing of probable cause to believe that relevant evidence will be found in the place to be searched.”  More importantly, the Court of Appeals disagreed with the Government’s position particularly since this case involved the search of a person’s home where privacy interests are exceptionally high.  In addition, the Government was relied upon cases that did not involve private residences, but rather border searches, inventory searches, and commercial inspections of vehicles.

HOW THIS AFFECTS YOUR AGENCY

One of the important lessons to come from this decision is that a protective sweep is just that…a short-term sweep of the premises to ensure that there is no lurking danger.  Anything more than that, potentially makes a protective sweep an unreasonable and illegal search.  If the protective sweep in this case was short term and there was less indicia of this search being done to build a criminal case (making plans to arrest/detain the suspect, taking photographs during the sweep, filing an operation plan prior to the inspection search, inordinate amount of time for a protective sweep), the Court might have considered the deputies observations of the guns and the drugs as merely incidental to the administrative inspection. In turn, the   subsequently obtained criminal search warrant may have ultimately withstood the Court’s scrutiny.

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

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] Later on, during an evidentiary hearing, this was at issue regarding Grey’s status when he was initially contacted by the deputies at his home and was placed into the back of the police car prior to anyone entering the house.  During the hearing, the deputy stated that Grey was not arrested but rather was only being detained.  However, the sergeant admitted that in his report he stated that Grey was arrested when he was initially contacted that day.

California and the nation are experiencing large-scale community reaction following the tragic death, at the hands of law enforcement, of George Floyd in Minneapolis.  Many people have been responsible in how they have exercised their rights to free assembly and free speech and in the way they have expressed their perspectives concerning law enforcement agency and community relations. Regrettably, however, others have engaged in criminal activities of looting, vandalism, and major property destruction.  In response, many jurisdictions in California have imposed curfews in an attempt to quell this dangerous and damaging conduct, while remaining committed to facilitating peaceful expressive activity.

In California, governmental statutory authority to enact a curfew derives from Government Code section 8634.  Section 8634 provides: “During a local emergency the governing body of a political subdivision, or officials designated thereby, may promulgate orders and regulations necessary to provide for the protection of life and property, including orders or regulations imposing a curfew within designated boundaries where necessary to preserve the public order and safety.  Such orders and regulations and amendments and rescissions thereof shall be in writing and shall be given widespread publicity and notice. The authorization granted by this chapter to impose a curfew shall not be construed as restricting in any manner the existing authority of counties and cities and any city and county to impose pursuant to the police power a curfew for any other lawful purpose.”  Section 8634 is contained within the California Emergency Services Act. (See Govt. Code §§8550 – 8669.7.)  The California Emergency Services Act also includes the statutory authority to enact other emergency orders, such as those recently imposed to attempt to curtail the spread of COVID-19.  As noted in Client Alert Vol. 35 No. 9, issued on
March 20, 2020, Government Code section 8665 provides the enforcement section for failure to obey an order enacted pursuant to the California Emergency Services Act.  Section 8665 provides: “Persons violating or neglecting to obey lawful order or regulation; Fine and imprisonment:  Any person who violates any of the provisions of this chapter or who refuses or willfully neglects to obey any lawful order or regulation promulgated or issued as provided in this chapter, shall be guilty of a misdemeanor and, upon conviction thereof, shall be punishable by a fine of not to exceed one thousand dollars ($1,000) or by imprisonment for not to exceed six months or by both such fine and imprisonment.

Questions have been posed concerning the effect of county-wide curfew orders on incorporated municipalities within a county.  This issue was addressed by the Attorney General in 1979 in Opinion 62 Ops. Cal. Atty. Gen. 701[1].  The Attorney General opined that County rules and regulations issued under Government Code section 8634 would apply in incorporated cities within the county.  Specifically, in examining these precepts, the Attorney General reached two conclusions:  “1. Cities within a county are bound by county rules and regulations adopted by the county pursuant to section 8634 of the Government Code during a county proclaimed local emergency when the local emergency includes both incorporated and unincorporated territory of the county even if the cities do not independently declare the existence of a local emergency; 2. When the county has declared a local emergency based upon conditions which include both incorporated and unincorporated territory of the county, it is not necessary for the cities to also declare the existence of a local emergency independently.”

With respect to constitutional challenges asserted against curfew orders, a California Court of Appeal addressed this issue in the case entitled In re Juan C., 28 Cal. App. 4th 1093 (1994).  This case concerned a challenge to a curfew order implemented in the City of Long Beach during riots in 1992.  The Court upheld the curfew against constitutional challenges, including assertions that the curfew order was facially overbroad and unconstitutionally restricted various rights and liberties, including the right to travel, the right to associate, the right to assemble, and the right to free speech, as protected under the First, Fifth and Fourteenth Amendments.

The Court held that the curfew regulation was properly enacted by the municipality by its authority under Government Code section 8634, and that the ordinance did not offend constitutional precepts because the restrictions imposed relative to outdoor assembly between the hours of 7 P.M. and 6 A.M. were reasonably related to a compelling government interest of ensuring the safety and welfare of persons and property in the municipality.  (Id. at 1098 – 1102; see also Smith v. Avino, 91 F.3d 105 (11^th Cir. 1996.))  The curfew regulation at issue in In re Juan contained the following notice provision:  “The law enforcement forces of this City, along with other law enforcement authorities cooperating with the City are hereby authorized and charged, to the extent provided by law with the responsibility of enforcing this curfew, and are further authorized to arrest such persons as do not obey this curfew after due notice, oral or written, has been given to said persons.”

HOW THIS AFFECTS YOUR AGENCY

Law enforcement currently is experiencing incredibly difficult circumstances serving your communities in keeping the peace, ensuring the exercise of protected rights, and enforcing the law during both a global pandemic, and while responding as leaders to current events taking place.  Curfew orders can provide a valuable tool to law enforcement in maintaining order and fostering the protection of life and property.  With respect to curfew orders, communication with those engaged in expressive activities, provision of notice to those assembled in violation of a curfew order, and a reasonable opportunity to comply with dispersal orders generally should precede enforcement activities in all but the most exigent circumstances.  Law enforcement officers should also be cognizant of de-escalation concepts and training, and their inherent discretion concerning enforcement decisions, when responding to those engaged in expressive activities.  Expressive activities, however, do not include looting, destruction of property and harm to human life.  We hope this Alert provides some assistance in making the performance of your duties at least somewhat easier, and safer.

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] See pdf

On May 28, 2020, the California Supreme Court issued the long-awaited opinion in National Lawyers Guild, San Francisco Bay Area Chapter v. City of Hayward (S252445).  The Court rejected the argument that staff time and effort spent editing and redacting confidential or exempt data from responsive video footage could be charged to the Public Records Act requester.

Facts

Demonstrations broke out in Berkeley as a result of the deaths of Eric Garner and Michael Brown.  The Hayward Police Department provided mutual aid to Berkeley in policing during the demonstrations.

After the demonstrations, the National Lawyers Guild, San Francisco Bay Chapter (“NLG”) submitted an 11 item Public Records Act (“PRA”) request seeking among other things, electronic communications, logs, reports, etc.  Responsive paper records were located, redacted appropriately, and were provided to NLG in .pdf format.  NLG was not charged for these records.

Though not specifically requested in NLG’s PRA request, the custodian handling the request, located approximately 90 hours of body work camera (“BWC”) video footage which were believed to be responsive to the PRA.  Contained within the BWC was medical and otherwise confidential data which would have to be redacted prior to production.  The City asserted that redacting 90 hours of BWC video was overly burdensome.  The City asked NLG to narrow its request.  NLG obliged this request and focused on six hours of BWC footage.  NLG was not charged for these efforts.

City staff then used free video editing software to remove exempt audio segments in order to create edited videos which were stored on a thumb drive.  The effort in separating the audio, removing exempt audio from the file, reconfiguring the audio track and uploading the edited audio to the video took 35.3 hours.  The City then invoiced NLG almost $3,000.00, which it paid, in protest, in order to receive the videos.

NLG filed a declaratory and injunctive relief action and a writ of mandate petition in Alameda Superior Court seeking a refund of the money paid to receive the videos.  The trial court held that Government Code §6253.9, subdivision (b)(2) (“6253.9(b)(2)”), which states that a City may charge for the production of an electronic record if it requires “data compilation, extraction or programming to produce the record” did not include making a redacted version of an existing Public Record.  The Court of Appeal reversed the trial court and held that the costs were compensable under 6253.9(b)(2).  The Supreme Court disagreed.

What Does “Extraction” Mean in 6253.9(b)(2)

The Court focused its analysis, in a 30-plus page opinion, on the meaning of the word “extraction” as set forth in Section 6253.9(b)(2).  The term “extraction” is contained between the phrases “data compilation” and the word “programming”.  The Court said, in the field of computing, the term “data extraction” does not include taking data out – it refers to a process of reviewing required or necessary data for a particular use.

Redacting data, on the other hand, is a common process in virtually every kind of public record, whether that record is in paper or electronic format.  The court noted that the PRA does not allow for the cost of redacting a paper record to be charged to the requestor, so it did not make sense that a City could charge for the time spent redacting an electronic version of a document.

Indeed, the Court said the staff effort in viewing and redacting the video and audio content was not substantially different from using an electronic tool to draw black boxes over exempt material in an electronically formatted document.

Accordingly, the Court ruled that the shifting of costs uniquely associated with electronic records to a PRA requestor can only be done if there is a need to retrieve responsive data to produce a record but not the costs of redacting exempt information from the record.

The Court held the effort spent reviewing and redacting data from the video was akin to searching through a file cabinet for paper records, something an agency would clearly not be able to charge to a PRA requestor.

The Court’s decision was supported by the overall goal of the PRA, which is to “further the people’s right to access.” For many requestors, a charge of $3,000.00 for six hours of responsive video, would be cost prohibitive and would prevent access to public documents.  The Court suggested that any unique burden placed on agencies in terms of redacting BWC footage should be directed to the legislature.

HOW THIS AFFECTS YOUR AGENCY

This decision has huge ramifications in dealing with SB 1421 documents.  As many of us are aware, the staff time spent reviewing investigations with video and audio recordings that may be associated with certain uses of force, officer-involved shootings, claims of dishonesty and sexual assault investigations by peace officers, which became disclosable pursuant to SB 1421, can require herculean efforts and can literally take several hundred hours to perform.  Based upon this ruling, the costs of those efforts must now be borne by the agency.

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 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.

As part of California’s response to the COVID-19 crisis, the Judicial Council, on April 6, 2020, adopted Emergency Rule 4, which establishes a statewide Emergency Bail Schedule that sets bail for all misdemeanor offenses, many felony offenses, and violations of post-conviction supervision at zero dollars ($0 bail), except as specified in the rule.

On April 29, 2020, in Ayala v. Superior Court, 2020 Cal. App. LEXIS 351 (4th Dist. Apr. 29, 2020), the California Fourth District Court of Appeal found that a superior court’s order implementing the Judicial Council’s Emergency Rule 4 was not inconsistent with the rule.  In reaching its conclusion, the Court explained that the history and language of the rule showed that the Judicial Council intended to adopt a statewide bail schedule, which, like countywide bail schedules, sets the presumptive bail amount for the covered offenses and violations.  In adopting the rule, the Judicial Council did not intend to suspend other statutes governing bail, as well as the superior court’s inherent authority to depart from the scheduled bail amount or impose bail conditions in individual cases under appropriate circumstances.

Background

As noted by the Court, a state of emergency exists in the State of California as a result of the ongoing COVID-19 pandemic.  In response, the Governor of California issued Executive Order N-38-20, which conferred on the Judicial Council of California unprecedented authority to promulgate rules governing court administration, practice, and procedure as necessary to address the emergency.  The executive order provides that, to the extent any such rule adopted by the Judicial Council would be inconsistent with any statute concerning civil or criminal practice or procedure, the relevant statute or portion thereof is suspended to resolve the inconsistency.  The executive order states:  “The purpose of this paragraph is to afford the Judicial Council and its Chairperson maximum flexibility to adopt any rules concerning civil or criminal practice or procedure they may deem necessary to respond to the COVID-19 pandemic, while ensuring that the rules adopted ‘shall not be inconsistent with statute,’ as provided in Article VI, section 6 of the California Constitution.”

Pursuant to this authority, and its constitutional obligation to “adopt rules for court administration, practice and procedure” (Cal. Const., art. VI, section 6, subd. (d)), the Judicial Council considered and adopted eleven emergency rules[1] covering various aspects of civil and criminal practice, including Emergency Rule 4.

Emergency Rule 4 established a statewide Emergency Bail Schedule which sets bail for all misdemeanor offenses, felony offenses, and violations of postconviction supervision at zero dollars ($0 bail), except as specified in the rule.  The San Diego County Superior Court, through its presiding judge, implemented Emergency Rule 4 in General Order No. 041320-42.  General Order No. 041320-42, among other things, established a procedure for handling persons arrested prior to implementation of the Emergency Bail Schedule.  A consolidated group of persons in pretrial custody and individuals arrested for violating their postconviction supervision petitioned a challenge to the superior court’s general order as inconsistent with Emergency Rule 4.  A more detailed explanation of these events follows.

Emergency Rule 4

In a report to the Judicial Council recommending adoption of the emergency rules, the chairs of the Judicial Council’s six internal committees noted that the pretrial custody decisions of trial courts can affect the spread of COVID-19.  The report stated, “During the COVID-19 pandemic, trial courts have a vital role to play in balancing public safety and public health by assisting to safely reduce jail populations in a manner that protects the health of inmates, jail staff, those who transport defendants to courts, and others as individuals leave jail and return to their communities.  The courts can assist by permitting more persons accused of misdemeanors and other lower-level offenses to be released from jail custody prior to arraignment, which in turn will reduce the immediate burden on the courts to conduct arraignments and preliminary examinations within compact timeframes.”

Prior to the Governor’s executive order, the Chief Justice of the California Supreme Court recommended that trial courts reduce the incarcerated population by adopting emergency bail schedules that would result in fewer people in custody based on their inability to post bail.  Her recommendation advised courts to “[r]evise, on an emergency basis, the countywide bail schedule to lower bail amounts significantly for the duration of the coronavirus emergency, including lowering the bail amount to $0 for many lower level offenses—for all misdemeanors except for those listed in Penal Code section 1270.1 and for lower-level felonies.”

Citing a “need for greater uniformity throughout the state,” the committee chairs’ report recommended that the Judicial Council “adopt an emergency rule of court that provides for a statewide Emergency Bail Schedule.”  The emergency rule would adopt an Emergency Bail Schedule “to set bail at $0 for misdemeanors and certain felonies … .”  The Emergency Bail Schedule would apply “[p]ursuant to Penal Code section 1269b … to any accused currently held in county jail custody charged with an offense covered by the schedule.”  The regularly adopted countywide bail schedule would apply to any other offenses.  The emergency rule would require “[b]ail to be set at $0 for violations of misdemeanor probation, whether the arrest is made with or without a bench warrant.  For violations of felony probation, parole, post release community supervision, or mandatory supervision, bail must be set in the same amount as bail for the underlying substantive charge of conviction under the Emergency Bail Schedule.”

The Judicial Council adopted the recommended rule as Emergency Rule 4.  It provides, “Notwithstanding any other law, this rule establishes a statewide Emergency Bail Schedule, which is intended to promulgate uniformity in the handling of certain offenses during the state of emergency related to the COVID-19 pandemic.”  (Emergency Rule 4(a).)  “Under the statewide Emergency Bail Schedule, bail for all misdemeanor and felony offenses must be set at $0, with the exception of only the offenses listed below … .”  (Emergency Rule 4(c).)  Likewise, “[u]nder the statewide Emergency Bail Schedule, bail for all violations of misdemeanor probation, whether the arrest is with or without a bench warrant, must be set at $0.”  (Emergency Rule 4(f)(1).)  “Bail for all violations of felony probation, parole, post-release community supervision, or mandatory supervision, must be set in accord with the statewide Emergency Bail Schedule, or for the bail amount in the court’s countywide schedule of bail for charges of conviction listed [in the exceptions to the statewide Emergency Bail Schedule].”  (Emergency Rule 4(f)(2).)  Even for covered offenses, Emergency Rule 4 does not affect the constitutional authority of superior courts to deny bail altogether in limited circumstances:  “Nothing in the Emergency Bail Schedule restricts the ability of the court to deny bail as authorized by article I, section 12, or 28(f)(3) of the California Constitution.”  (Emergency Rule 4(d).)[2]  In sum, Emergency Rule 4 established a statewide Emergency Bail Schedule which sets bail for all misdemeanor offenses, certain felony offenses, and violations of postconviction supervision at zero dollars (zero bail), except as specified in the rule.

Emergency Rule 4 directed the superior courts to apply the Emergency Bail Schedule, by no later than 5 p.m. on April 13, 2020, to every accused person arrested and in pretrial custody and to every accused person held in pretrial custody.  (Emergency Rule 4(b).)  The rule remains in effect “until 90 days after the Governor declares that the state of emergency related to the COVID-19 pandemic is lifted, or until amended or repealed by the Judicial Council.” (Emergency Rule 4(g).)

San Diego Superior Court’s General Order

On April 13, 2020, the San Diego County Superior Court implemented Emergency Rule 4 in General Order No. 041320-42.  The order provided that the superior court should apply the Emergency Bail Schedule “in the same manner as the regularly adopted San Diego County Bail Schedule” except as specified in the order.  (Emphasis added.)  The order stated, “For persons arrested prior to the effective date and time of this order, bail shall be set in accordance with the [Emergency Bail Schedule].  However, the court retains the traditional authority in an individual case to depart from the bail schedule or impose conditions of bail to assure the appearance of the defendant or protect public safety.”  (Emphasis added.)

To preserve that authority, the order set forth a procedure for making individualized assessments regarding persons held in custody:  “Persons whose bail is reduced to zero by the [Emergency Bail Schedule] shall be released from custody at 5:00 p.m. on April 15, 2020, or as soon thereafter as is feasible, unless prior to 5:00 p.m. on April 15, 2020, the prosecuting agency notifies the Sheriff that it will be requesting an increase in bail, a ‘no bail’ hold, or imposition of conditions of release.”  (Emphasis added.)  If the prosecuting agency notifies the court  of its request to seek higher bail, additional steps follow.[3]

For newly arrested persons, the order provides that bail must be set in accordance with the Emergency Bail Schedule.  However, as with persons already in custody, the order adopted a procedure for considering departures from the Emergency Bail Schedule and bail conditions: “Requests for a modification of the bail amount, or for conditions of release, shall be made to the daytime or after-hours duty judge.  If bail is modified, or conditions imposed, the court will notify the Sheriff’s Watch Commander at the detention facility where the defendant is housed, and the Sheriff shall note the change on defendant’s paperwork, including any release papers.”

The San Diego County Public Defender filed an objection to the Court’s order.  After a hearing, the presiding judge, in a written opinion, overruled the public defender’s objection.

Pursuant to the Court’s implementation order, the prosecuting agencies identified between 100 and 200 persons in pretrial custody for whom the agencies sought a bail increase or bail conditions.  These individuals, represented by the public defender, petitioned the California Fourth District Court of Appeal for a writ of mandate directing the superior court to rescind its implementation order, arguing that Emergency Rule 4 mandates zero bail for any covered offense or violation, with the only exception being the court’s constitutional authority to deny bail altogether.  Under their interpretation, the superior court would not be permitted to increase bail above zero dollars or impose conditions on bail.  In a second petition, three individuals arrested for violating their post-conviction supervision also challenged the superior court’s implementation of Emergency Rule 4.  They alleged that they were being held in custody without bail and that the superior court refused to apply Emergency Rule 4 to them.

The Fourth District consolidated the proceedings on the two petitions and issued an order to show cause.  The consolidated petitioners challenged the superior court’s implementation order as inconsistent with Emergency Rule 4.  They argued that bail for offenses and violations covered by the rule must be set at zero dollars, and that the superior court had no authority to increase bail or impose conditions in an individual case.  They also contended that the implementation order, including the remote hearings contemplated therein, violated various constitutional protections.

Discussion

The Fourth District Court of Appeal explained that the California Constitution provides that a defendant “shall be released on bail by sufficient sureties” unless an exception applies.  (Cal. Const., art. I, section 12.)  The superior court judges in each county are required by statute to adopt a “countywide schedule of bail” for bailable felony, misdemeanor, and infraction offenses (except Vehicle Code infractions).  (Penal Code section 1269b, subd. (c).)  “The countywide bail schedule shall contain a list of the offenses and the amounts of bail applicable for each as the judges determine to be appropriate.“  (Id., subd. (f).)  The countywide bail schedule sets out the “presumptive” amount of bail for the identified offenses.  (In re Christie (2nd Dist. 2001) 92 Cal.App.4th 1105, 1109.)  In general, before a defendant’s appearance in court, “the bail shall be in the amount fixed in the warrant of arrest or, if no warrant of arrest has been issued, the amount of bail shall be pursuant to the uniform countywide schedule of bail for the county in which the defendant is required to appear … .” (Penal Code section 1269b, subd. (b).)

If conditions warrant, a peace officer may apply for bail in excess of the scheduled amount:  “If a defendant is arrested without a warrant for a bailable felony offense or for the misdemeanor offense of violating a domestic violence restraining order, and a peace officer has reasonable cause to believe that the amount of bail set forth in the schedule of bail for that offense is insufficient to ensure the defendant’s appearance or to ensure the protection of a victim, or family member of a victim, of domestic violence,” the officer may apply for an order setting a higher bail. (Penal Code section 1269c.)

The court need not adhere to the scheduled amount, but rather has the discretion to make individualized determinations as appropriate.  “In setting, reducing or denying bail, the judge or magistrate shall take into consideration the protection of the public, the safety of the victim, the seriousness of the offense charged, the previous criminal record of the defendant, and the probability of his or her appearing at the trial or hearing of the case.  Public safety and the safety of the victim shall be the primary considerations.”  (Cal. Const., art. I, section 28, subd. (f)(3).)  The bail statutes set out these factors to guide the court’s discretion as well. (Penal Code section 1275, subd. (a).)

In addition to the amount of bail, courts have the authority to impose conditions related to public safety on persons released on bail.  (Cal. Const., art. I, section 28, subd. (b)(3).)  “Any condition must be reasonable, and there must be a sufficient nexus between the condition and the protection of public safety.”  In re Webb, 7 Cal.5th 270, 278 (2019).

As mentioned, the Judicial Council adopted Emergency Rule 4, which declares that under the statewide Emergency Bail Schedule, “bail for all misdemeanor and felony offenses must be set at $0” unless the defendant is charged with certain excepted offenses.  (Emergency Rule 4(c).)  Under the statewide Emergency Bail Schedule, “bail for all violations of misdemeanor probation, whether the arrest is with or without a bench warrant, must be set at $0” and “[b]ail for all violations of felony probation, parole, post-release community supervision, or mandatory supervision, must be set in accord with the statewide Emergency Bail Schedule, or for the bail amount in the court’s countywide schedule of bail for” excepted offenses.  (Emergency Rule 4(f)(1)–(2).)

Petitioners argued that the plain language of Emergency Rule 4 (e.g., bail “must be set”) established that the superior court could not deviate from the zero dollar bail amount in the statewide Emergency Bail Schedule. Petitioners argued, “In no uncertain terms, the Chief Justice of the California Supreme Court and the Judicial Council ordered that bail ‘must’ be set at $0 unless certain exceptions apply.”

The Fourth District disagreed, explaining that Emergency Rule 4 did not just mandate zero bail for the covered offenses, irrespective of the particular facts of each defendant’s case.  Instead, it adopted a schedule, the statewide Emergency Bail Schedule, under which bail for the covered offenses was zero dollars.  The Court declared that the rule could reasonably be interpreted to preserve the court’s existing authority to increase bail from the scheduled zero dollar bail amount if the circumstances and existing statutes permitted such a deviation.

The Fourth District determined that the history and structure of the rule demonstrated that this interpretation was the correct one.  The Judicial Council report had emphasized that the Chief Justice had issued an advisory to trial courts to “[r]evise, on an emergency basis, the countywide bail schedule to lower bail amounts significantly for the duration of the coronavirus emergency, including lowering the bail amount to $0 for many lower level offenses … .”  The Fourth District explained that because the trial courts did not have the power generally to suspend existing statutes or court rules, the recommended emergency countywide bail schedules would necessarily function in the same way as existing regularly adopted bail schedules.  Specifically, trial courts applying such emergency countywide bail schedules could, in appropriate circumstances, increase bail from zero dollars in individual cases or impose reasonable conditions on release.

The Court noted the emphasis on “uniformity” in the Judicial Council report and in the rule.  The first subdivision of Emergency Rule 4, entitled “Purpose,” states:  “Notwithstanding any other law, this rule establishes a statewide Emergency Bail Schedule, which is intended to promulgate uniformity in the handling of certain offenses during the state of emergency related to the COVID-19 pandemic.”  (Emergency Rule 4(a), italics added.)  The Fourth District concluded that the Judicial Council report and the express purpose of the rule demonstrated that Emergency Rule 4 was intended to mandate that the Chief Justice’s recommendation be adopted by every trial court in the state in the same manner, i.e., the same offenses would be subject to the same zero dollar scheduled bail amount in every county.  The Court explained that the focus on uniformity undermined the petitioners’ argument that the statewide Emergency Bail Schedule in the rule was intended to function differently from existing countywide bail schedules—by depriving trial courts of their established authority to depart from the scheduled bail amount and impose bail conditions.  Instead, the focus on uniformity demonstrated that the Judicial Council intended the statewide Emergency Bail Schedule to operate as if each court had adopted it—uniformly—as a countywide bail schedule.

The Court further noted that the report specifically invoked Penal Code section 1269b, which mandates the adoption of countywide bail schedules.  The report stated, “Pursuant to Penal Code section 1269b, [the rule would require] the application of the statewide Emergency Bail Schedule to any accused currently held in county jail custody charged with an offense covered by the schedule.”  The Court explained that the report thus contemplated that the statewide Emergency Bail Schedule established by the rule was intended to fit comfortably within existing statutes governing the setting of bail, rather than supersede them.

Moreover, the Court found the use of the term “schedule” in the rule supported this interpretation, observing that the rule established a statewide bail schedule to be applied by trial courts.  Emergency Rule 4, the Court explained, did not anywhere indicate that the term should be given anything other than its established meaning and significance.  The rule directed trial courts to “apply the statewide Emergency Bail Schedule” to certain categories of persons in custody.  (Emergency Rule 4(b).)  It then described the substance of the schedule, i.e., zero bail for the covered offenses.  (Emergency Rule 4(c).)  For excepted offenses, the rule directed trial courts to apply their regularly adopted countywide bail schedules, and courts retained the authority to modify those schedules as needed.  (Emergency Rule 4(e).)  The Court concluded that by establishing a statewide bail schedule and directing courts to apply it, while continuing to apply their countywide bail schedule to excepted offenses, the rule embodied the Judicial Council’s intent to create a uniform schedule for the covered offenses—but not to alter the normal function of bail schedules in setting bail for individual defendants under existing statutes.

Petitioners contended that this interpretation would produce “absurd results” because it would not promote a reduction in the jail population.  However, the Court pointed to the record, including the papers submitted by the petitioners, which showed that many individuals in custody in San Diego County had been released under this interpretation of the statewide Emergency Bail Schedule, including dozens of defendants in pretrial custody and two of the three named post-conviction petitioners.  The Court maintained that the effect of the statewide Emergency Bail Schedule was to set the presumptive bail amount at zero dollars for the covered offenses.  If bail was to be set above that amount—for example, in the amount previously specified in the countywide bail schedule—it must be justified.  (See Section 1269c; Christie, supra, 92 Cal.App.4th at p. 1110.)  The Court found that the petitioners had not shown that interpreting the statewide Emergency Bail Schedule as imposing a new scheduled bail amount of zero dollars was so ineffective as to be absurd.

Petitioners also argued that because the Emergency Rule expressly confirmed a trial court’s ability to deny bail altogether, the inclusion of this exception showed the Judicial Council intended no other exception, e.g. for bail increases under existing bail statutes.  The Court rejected this argument, explaining that constitutional authority to deny bail was an exception to the application of bail schedules generally, and that the constitutional authority to deny bail altogether was not in the same category as the statutory authority to depart from a scheduled bail amount.  The Court stated that the rule’s preservation of the countywide bail schedule reflected a limitation of the scope of the statewide Emergency Bail Schedule to certain covered offenses; it did not reflect a limitation on the trial court’s power to depart from the scheduled bail amount—whether in the statewide schedule or the countywide schedule—under existing bail statutes.

The Fourth District also did not find Rule 4(a)’s ‘Notwithstanding any other law’ clause to present a problem, as the petitioners argued, because the statutes governing departures from scheduled bail amounts were complimentary and thus readily harmonized with Emergency Rule 4 for the reasons already discussed.  Moreover, the Court found that the procedure implemented by the superior court to determine which defendants would be released on zero bail and which would not was a reasonable exercise of the superior court’s inherent supervisory and administrative powers.

In summary, the Fourth District denied the petitioners’ contention that the superior court could not depart from the zero bail amount in the statewide Emergency Bail Schedule in any individual case.  To the contrary, the history and structure of Emergency Rule 4 demonstrated that the Judicial Council intended the statewide Emergency Bail Schedule to function in the same manner as the countywide bail schedule in each court.  Under the rule, the superior court retains the ability to depart from the scheduled zero bail amount or impose bail conditions under appropriate circumstances in an individual case.  The Court similarly concluded that the petitioners had not demonstrated that the superior court’s implementation order was unauthorized or unconstitutional.  Emergency Rule 4 required the application of the statewide Emergency Bail Schedule to defendants already held in pretrial custody.  (Emergency Rule 4(b).)  The implementation order created a reasonable process for delineating those defendants who could be released on the scheduled zero dollar bail, and those defendants for whom individualized bail decisions would be made after the prosecution requested an upward departure in the scheduled amount or conditions of release.

The Court also concluded that the petitioners had not shown the implementation order or its procedures violated any guarantees of the federal or state constitutions, at least on the current record.  The Fourth District Court of Appeal accordingly denied the petitions.

HOW THIS AFFECTS YOUR AGENCY

With this case, agencies may be reassured that the Emergency Rule 4 did not supersede existing schedules and processes as it pertains to bail modifications in appropriate circumstances.  Agencies should also observe that if bail is to be set above the amount in Emergency Rule 4 (i.e. nonzero), it must still be justified, as before, under Penal Code section 1269c or other applicable statutory or constitutional provisions.  The Ayala decision confirms that these well-recognized avenues to modifying bail remain in place subsequent to adoption of Emergency Rule 4.

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] The emergency rules related to the COVID-19 pandemic, including Emergency Rule 4, are set out in the California Rules of Court, Appendix I.

[2] The exceptions to the statewide Emergency Bail Schedule, set forth in Emergency Rule 4(e)(1), are not at issue here.

[3] The order also required that the prosecuting agency provide a list of such objections to defense counsel by the same date and time. Under the order, the prosecution and defense counsel must meet and confer regarding the objections within 24 hours. If the parties subsequently agree that a person could be released on zero bail under the Emergency Bail Schedule, he or she shall be released by the sheriff. If the parties agree that a person could be released on increased bail, or subject to conditions, the parties shall submit a stipulation and proposed order to the court to that effect and notify the sheriff. If the parties cannot agree, and the defendant has not yet been arraigned, “the prosecuting agency shall put the matter on the video-court calendar commencing Monday, April 20, 2020, or as soon as practical thereafter, for arraignment and bail review.” In all other cases where the parties cannot agree, “the matter will be reviewed by a judicial officer via telephone conference as soon as practical.”

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.

The COVID-19 pandemic has altered many of the most fundamental expectancies of our democratic republic.  Personal liberty, economic activity, and views about how to best provide for our collective care and health are continuously being adapted.  As part of the role of government in guiding the way we jointly move forward, law enforcement leadership is responsible for determining how to provide emergency services in this environment, how to best attain compliance with Public Health Officer orders, how to sustain agency operations, and how to assure, to the best of their ability, the safety of their personnel.  One of the most complex aspects of these critical duties involves decisions concerning how to respond to First Amendment expressive rights activity.  This document is designed to provide some assistance with determining how to fairly and accurately evaluate and react to these complex situations.

Health Emergency Appellate Decisions

The authority of government to act to protect the people it serves during a health emergency has been part of United States law for more than a century.  One of the foundational cases continuing to provide guidance today, Jacobson v. Massachusetts, 197 U.S. 11 (1905), was decided by the United States Supreme Court in 1905.  In Jacobson, the Court upheld the prosecution of a defendant for violating a mandatory adult smallpox vaccination statute.^[1]  The challenge was brought under the 14^th Amendment, as well as asserting other claims.  In reaching its outcome, the Court described how the discretionary authority of the state shall not “contravene the Constitution of the United States or infringe any right granted or secured by that instrument.” (Id. at 25.)

The Court assessed the circumstances surrounding the legislation requiring smallpox vaccinations, explaining, “A community has the right to protect itself against an epidemic of disease which threatens the safety of its members.  It is to be observed that when the regulation in question was adopted, smallpox, according to the recitals in the regulation adopted by the Board of Health, was prevalent to some extent in the city of Cambridge and the disease was increasing.”  (Id. at 27.)  The opinion reconciled collective community safety with personal autonomy saying, “it was the duty of the constituted authorities primarily to keep in view the welfare, comfort and safety of the many, and not permit the interests of the many to be subordinated to the wishes or convenience of the few,” and that it was “true that in every well-ordered society charged with the duty of conserving the safety of its members, the rights of the individual in respect of [their] liberty may at times, under the pressure of great dangers, be subjected to such restraint, to be enforced by reasonable regulations, as the safety of the general public may demand.” (Id. at 29.)

Very importantly, in upholding the public health legislation, the Court also cautioned there was a point where the state might go too far and intrude into “a sphere within which the individual may assert the supremacy of his own will and rightfully dispute the authority.”  (Id.)  The opinion closed with the guidance, “the police power of a State, whether exercised by the legislature, or by a local body acting under its authority, may be exerted in such circumstances or by regulations so arbitrary and oppressive in particular cases as to justify the interference of the courts to prevent wrong and oppression.” (Id. at 38.)  The example the Court provided illustrating this point was applying the statute where the vaccination would be cruel and inhuman and could “seriously impair” the person’s health or “probably cause their death.” (Id.)

In terms of our present circumstances, the Jacobson decision was applied to a dispute involving an executive order issued by the Governor of Texas to cope with the COVID-19 pandemic in a case entitled In re Abbott, 954 F.3d 772 (5^th Cir. 2020).  The case was decided on April 7, 2020.  The executive order at issue in Abbott postponed non-essential surgeries and procedures until 11:59 p.m., on April 21, 2020.  The district court had issued a TRO against the order as it applied to abortion procedures.

In the Abbott decision, the Court of Appeals cited to Jacobson, noting that it was a “settled rule” that “allow[ed] the state to restrict, for example, one’s right to peaceably assemble, to publicly worship, to travel, and even to leave one’s home.”  (Id. at 779.)  The Court extended its reasoning, additionally stating, “The right to abortion is no exception.”  (Id.)  The Court further referenced Jacobson, observing, “Famously, it explained that the ?liberty secured by the Constitution . . . does not import an absolute right in each person to be, at all times and in all circumstances, wholly freed from restraint.  “Rather, “a community has the right to protect itself against an epidemic of disease which threatens the safety of its members.”  (Id. at 783, internal citations omitted.)  The Court of Appeals issued a writ vacating the restraining order.  In taking this action, similar to Jacobson, the Court noted that there could be circumstances where, as the order was applied, constitutional questions could exist as to whether “GA-09 infringes abortion rights in specific contexts.” (Id. at 788.)

Jacobson was also relied upon in dismissing a Section 1983 action brought by a nurse who was quarantined upon her return from caring for patients during the 2014-16 Ebola epidemic in West Africa.  See Hickox v. Christie, 205 F. Supp. 3d 579, 584 (D.N.J. 2016).  In reaching this outcome, the district court incorporated Jacobson’s admonition regarding the vaccine requirement, stating those rules “enacted to protect public health, will not be struck down unless it ‘has no real or substantial relation to [that goal], or is, beyond all question, a plain, palpable invasion of rights’ secured by the Constitution.”  (Id. at 591, citations omitted.)  The court also cautioned, however, “A restriction can be so arbitrary or overbroad as to be impermissible.”  (Id. at 592-593.)

Public Health Orders

On March 19, 2020, the Governor issued Executive Order N-33-20.  A key provision regarding people being directed to remain at home appears below:

“ORDER OF THE STATE PUBLIC HEALTH OFFICER

March 19, 2020

To protect public health, I, as State Public Health Officer and Director of the California Department of Public Health, order all individuals living in the State of California to stay home or at their place of residence except as needed to maintain continuity of operations of the federal critical infrastructure sectors, as outlined at https://www.cisa.gov/identifying-critical-infrastructure-during-covid- 19.  In addition, and in consultation with the Director of the Governor’s Office of Emergency Services, I may designate additional sectors as critical in order to protect the health and well-being of all Californians.”

The following language is illustrative of a county health order as it pertains to essential travel and the requirement to abide by social distancing requirements:

“ORDER OF THE HEALTH OFFICER

10. Definitions and Exemptions.
11. For purposes of this Order, individuals may leave their residence only to perform any of the following “Essential Activities.” But people at high risk of severe illness from COVID-19 and people who are sick are urged to stay in their residence to the extent possible except as necessary to seek medical care.
12. For the purposes of this Order, “Essential Travel” includes travel for any of the following purposes. Individuals engaged in any Essential Travel must comply with all Social Distancing Requirements as defined in this Section below.”  (Emphasis added.)

Executive Orders issued by the Governor and orders from Public Health Officers regarding quarantine and other issues carry the authority of law.  They are enforceable under Government Code section 8665 and Health and Safety Code section 120295, respectively.  The issue of enforcement of these orders is fully discussed in Client Alert Vol. 35, No.9, “GUIDANCE TO LAW ENFORCEMENT AGENCIES DURING COVID-19 STATE OF EMERGENCY.”

Rights to Speech and Assembly

As with all other forms for government authority, the orders of health officers exist within the framework of our constitutionally protected freedom of speech and assembly.  These rights are preserved at the highest level under the First Amendment of the United States Constitution and Article I of the California Constitution.  The protections, however, are not absolute and may be subject to regulation, as discussed above.

In terms of places fundamentally associated with expressive activity, such as streets, parks, and sidewalks, Prigmore v. City of Redding, 211 Cal. App. 4th 1322, 1335 (2012), provides a helpful summary of the boundaries of permissible regulations:

“In these quintessential public forums, the government may not prohibit all communicative activity.  For the State to enforce a content-based exclusion it must show that its regulation is necessary to serve a compelling state interest and that it is narrowly drawn to achieve that end.  The State may also enforce regulations of the time, place, and manner of expression which are content-neutral, are narrowly tailored to serve a significant government interest, and leave open ample alternative channels of communication.” (Perry, supra, 460 U.S. at p. 45 [74 L.Ed.2d at p. 804].)”

In addition, an assembly is also limited in its character to activity that is lawful.  In California, Penal Code section 407 defines an unlawful assembly as follows:

“Whenever two or more persons assemble together to do an unlawful act, or do a lawful act in a violent, boisterous, or tumultuous manner, such assembly is an unlawful assembly.”

The courts have separately interpreted the provisions pertaining to an “unlawful act” and “a lawful act in a violent, boisterous, or tumultuous manner.”  In 1952, the California Supreme Court held, “It is not disputed that the group was assembled to view a “hot-rod” race.  Such illegal purpose renders the action of the group knowingly participating therein an unlawful assembly within the meaning of section 407 of the Penal Code.”  Coverstone v. Davies, 38 Cal. 2d 315, 320, 239 P.2d 876, 878 (1952).  Another case, citing Coverstone, described the provision as pertaining to “criminal conduct prohibited by state law.”  Chambers v. Mun. Ct., 65 Cal. App. 3d 904, 910, 135 Cal. Rptr. 695, 698 (1977).  The Ninth Circuit, in discussing imminent danger as a basis for crowd dispersal, has also defined “unlawful act,” as “they are violating some other law in the process.”  Collins v. Jordan, 110 F.3d 1363, 1371 (9th Cir. 1996).

As to the second portion of the statute, where an assembly is otherwise lawful, the California Supreme Court has provided direction concerning the narrow range of what falls within the meaning of “violent, boisterous, or tumultuous” activity.  Sections 407 and 408 are applicable only to “assemblies which are violent or which pose a clear and present danger of imminent violence.”  In re Brown, 9 Cal. 3d 612, 623, 108 Cal. Rptr. 465, 472, 510 P.2d 1017, 1024 (1973).  See also Dubner v. City & County of San Francisco, 266 F.3d 959 (9th Cir. 2001) [reinstating claim for unlawful arrest because there was no evidence plaintiff intended to interfere with business at the convention center, and the protest did not involve a sufficient threat of violence to justify arresting non-participants].

Bringing All of This Together

At the time of developing this Alert, in the United States, the number of deaths from COVID-19 exceeds 61,000, and the total number of reported cases has surpassed 1,000,000.  The danger of the virus, the extent to which it is highly contagious, and the harm it has caused, provide an urgent, and tragic basis, for government and health officials to act to prevent its spread.  During this period, for our collective benefit, we have experienced substantial limitations on our activities as a means to limit public harm.  At the same time, however, the essence of our constitutional liberties endures through this crisis.

The orders of public health officers, as they relate to speech, where they are applied in a way that is content neutral, are effectively time, place, and manner restrictions.[2]  At the same time, if protesters are present at a public location and are adhering to all the social distancing and face-mask safety protocols, then they are acting in a manner not unlike what people would be doing waiting in line to access a store or carrying out some other “essential” activity.[3]  Given the potentially conflicting goals of fostering both the public health and individual constitutional rights, it is critical for law enforcement executives to seek legal advice concerning what enforcement activities are appropriate given the specific circumstances before them.  It is important to note that law enforcement officers have discretion to decide whether to initiate enforcement activity with respect to any particular situation.

For law enforcement leaders faced with deciding what public safety actions they may have to take in response to protest activity, one approach is to evaluate what is occurring, along what might be described as a continuum of constitutional certainty.  For illustration, as an act of civil disobedience, it is possible an assembly taking place for the expressive purpose of violating the health orders, in the strict sense, would constitute an unlawful assembly.  However, this does not necessarily imply or suggest any level of intervention would be warranted or appropriate.  If that event, however, comes to involve a greater degree of conduct putting people at risk of infection, and which promotes the type of prohibited interaction that gave rise to the original issuance of the health orders, then the circumstances begin to move toward the realm of what is associated with assemblies posing a clear and present danger of imminent violence.

The following non-exhaustive list of factors that may be considered in evaluating public safety risks presented by a public protest in the COVID-19 environment, and whether some form of enforcement is appropriate, or potentially unavoidable:

1. Officer safety, access to personal protective equipment, and decontamination materials;
2. Number of participants and assessment of the crowd’s intent;
3. Extent of compliance with social distancing and responsiveness to safety admonishments;
4. The crowd’s use of masks or other protective attire designed to prevent transmission of the virus;
5. Active physical movement in proximity to others, increasing the risk of spread of the virus;
6. Blocking road or sidewalk access to essential services;
7. Obstructing essential workers who are attempting to perform their duties;
8. Putting pedestrians or uninvolved third parties at risk of unwanted exposure, particularly with respect to members of vulnerable populations;
9. Throwing objects or material;
10. Acts of vandalism;
11. Threats, fighting or other acts of physical violence;
12. A known history of violence associated with specific participants;
13. The presence of weapons or improvised weapons;
14. Law enforcement capacity to take enforcement action against specific dangerous subjects within a larger compliant group;
15. Scene command judgment about whether enforcement will mitigate or exacerbate the risks involved in the circumstances; and
16. Incorporation of the requirements of the applicable health order in dispersal announcements.

Time Period Prior to Protest

The period preceding a protest event may allow time for law enforcement to communicate with participants concerning how they may convey their message without putting people in danger or violating the terms of the specific health order(s) implicated by their actions.  This communication could be accomplished either directly, or through digital platforms, to confirm what is permissible in terms of conduct.  It may also be possible to obtain a public safety restraining order.  Generally, “enjoining or preventing First Amendment activities before demonstrators have acted illegally or before the demonstration poses a clear and present danger is presumptively a First Amendment violation.”  Collins v. Jordan, 110 F.3d 1363, 1371 (9th Cir. 1996).  However, the health risks of these situations are distinct and can potentially be mitigated with specific content-neutral provisions, if a judge is willing to assert authority.  The order may also lead cooperatively to a higher level of overall safety.

Additionally, as part of incident planning, preparations should be made to assure any enforcement actions or dangerous crowd behavior are memorialized with high–quality video evidence.  In addition, communicating event information to mutual aid agencies, sharing executive leadership incident management intent, and potentially conducting joint training, are steps that can be considered in providing a coordinated response.  Similarly, seeking direction from the District Attorney could help frame enforcement options in your particular jurisdiction.

HOW THIS AFFECTS YOUR AGENCY

Response to protests and First Amendment activities are among the most complex and nuanced situations law enforcement is called upon to address.  This responsibility has been made enormously more difficult to apply in the context of carrying out these duties during a global pandemic involving a highly-contagious virus.  Hopefully, the information set forth herein is beneficial to law enforcement leadership in order to assist you with attaining the best available, and reasonable, outcome in situations you may face that is respectful of the liberties of all constituents and the overall public health and safety.

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

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] “The Revised Laws of that Commonwealth, c. 75, § 137, provide that “the board of health of a city or town if, in its opinion, it is necessary for the public health or safety shall require and enforce the vaccination and revaccination of all the inhabitants thereof and shall provide them with the means of free vaccination. Whoever, being over twenty-one years of age and not under guardianship, refuses or neglects to comply with such requirement shall forfeit five dollars.”” Jacobson  v. Massachusetts, 197 U.S. 11, 22, 25 S. Ct. 358, 359 (1905).

[2] In an action seeking extraordinary relief from a Governor’s order of the closure of physical operations of all non-life-sustaining business, the Supreme Court of Pennsylvania ruled, “The Executive Order is tailored to meet the exigencies of COVID-19 restricting in-person gatherings to promote social distancing. It does not otherwise prohibit alternative means of communication or virtual gathering. Accordingly, we conclude that the Executive Order does not violate the First Amendment to the United States Constitution or Article I, Sections 7 and 20 of the Pennsylvania Constitution.” Friends of Devito v. Wolf, No. 68 MM 2020, 2020 Pa. LEXIS 1987, at *68 (Apr. 13, 2020).

[3] A United States District Court recently issued a restraining order allowing drive-in Easter church services, which were not permitted by a City of Louisville public health order. In issuing its order, the court noted, “Those ‘essential’ activities include driving through a liquor store’s pick-up window, parking in a liquor store’s parking lot, or walking into a liquor store where other customers are shopping. The Court does not mean to impugn the perfectly legal business of selling alcohol, nor the legal and widely enjoyed activity of drinking it. But if beer is ‘essential,’ so is Easter.”  On Fire Christian Ctr. v. Fischer, No. 3:20-CV-264-JRW, 2020 U.S. Dist. LEXIS 65924, at *13-14 (W.D. Ky. Apr. 11, 2020).

On April 23, 2020, the United States District Court for the Southern District of California, in Rhode v. Becerra,[1] granted the plaintiffs’ motion for preliminary injunction enjoining what the Court called California’s “onerous and convoluted new laws” requiring ammunition purchase background checks and implementing ammunition anti-importation laws.  Writing for the Southern District, Judge Roger T. Benitez declared, in a lengthy 77-page opinion, that the laws “gravely injured” the Second Amendment rights of California’s citizens.

The following day, on April 24^th, the Attorney General requested a stay of the District Court’s preliminary injunction.  The District Court denied the request the same day. However, the Ninth Circuit subsequently issued a stay of the preliminary injunction on the evening of April 24^th following the filing of an interlocutory appeal and request for stay by the Attorney General.  As such, the preliminary injunction issued by the District Court enjoining the State of California from enforcing the ammunition sales background check provisions set forth in California Penal Code sections 30370(a) through (d) and 30352, and the ammunition anti-importation provisions in Sections 30312(a) and (b), 30314(a), currently is stayed.

Background

Proposition 63

Prior to the November 2016 passage of Proposition 63 (the “Safety for All Act of 2016”), California citizens were able to purchase wanted or needed ammunition without background checks, and they could order ammunition over the internet and from vendors outside the state.

Proposition 63 amended the state Penal Code to regulate the purchase of all firearm ammunition, extending the concept of background checks for firearms.  The proposition requires that ammunition sales, deliveries, or transfers in California be conducted by a state-licensed ammunition vendor in a face-to-face transaction.  (Penal Code section 30312(a)-(b).[2])  The initiative also mandates that a California resident who sought to buy firearm ammunition must first pay for and pass an electronic background check each time he or she wanted to make a purchase.  Moreover, a resident may not purchase from vendors outside of California, whether in person or through an internet transaction, unless the ammunition is delivered directly to a California-licensed ammunition vendor, whereupon the resident must then pay for and pass the background check in a face-to-face transaction.  Id.; Section 30314.

The Main Gate and Four Doors

The changes to the laws resulting from the passage of Proposition 63 implemented what the Southern District called “The Main Gate and Four Doors,” a concept the Court described as follows:

Metaphorically, all ammunition to be bought or sold must be kept in the back storeroom of a licensed ammunition vendor.  In order to be admitted to the storeroom to buy ammunition, a California resident must first pass through a main gate.  The main gate requires proving citizenship.  Proceeding through the gateway, the California resident is then presented with a choice of four doors.  Each door is a different kind of background check and each doorway leads to the back storeroom.  Door No. 1 is the “Standard” background check.  It is supposed to be quick and costs one dollar but it is only for people who have previously bought a firearm through a California licensed firearm dealer or who have registered a firearm.  Most try this door first.  Door No. 2 is a “Basic” background check.  It is slow and costs $19.  Anyone can try this door and many do.  Door No. 3 is a Certificate of Eligibility Verification check.  It is quick and cheap, but it is only for those who have already gone through a long, expensive, and arduous process of obtaining a Certificate of Eligibility (“C.O.E.”).  Door No. 4 leads to the new firearms showroom.  Here, a person purchases a firearm and submits to an expensive and slow full background check conducted through federal and state databases.  If the Californian passes the Door No. 4 background check, she may also be admitted to the ammunition storeroom after the statutory ten-day cooling off period.  Though based on complete database searches and live analyst reviews, background checks for Doors No. 2 and No. 4, are good for one purchase only—just like a Door No. 1 check.

Under this system, before a person may go through the main gate and start a background test, he or she must prove citizenship.  However, a United States Citizen who has only a standard California-issued driver’s license (“DL”) or identification card (“ID”) will not qualify to take the first step in purchasing ammunition, i.e., the ammunition background check.  This is because by itself, a standard California driver’s license or identification card is not sufficient to prove citizenship.  If a person is relying on only his driver’s license to prove citizenship in order to buy ammunition, he needs a new California REAL ID-compliant DL or ID.

However, other California law directs the Department of Motor Vehicles (“DMV”) to issue California DLs to aliens who may be unlawfully present in the United States and reside in California, and these DLs look exactly like the standard DLs and IDs now issued to California’s U.S. Citizen-residents.  Thus, all standard California driver’s licenses now look exactly the same, whether issued to a citizen resident or to an unlawfully present alien.  However, such an alien commits a federal crime by possessing either a firearm or ammunition, while a U.S. Citizen has a federal constitutional right to possess a firearm and buy ammunition.

Without additional proof of citizenship, everyone who wants to buy ammunition with a standard California DL is rejected at the main gate because a person who presents a standard California DL at the main gate may be either a U.S. Citizen or an unlawfully-present alien.  Thus, a United States Citizen who has only a standard California-issued DL or ID does not qualify to take the first step in purchasing ammunition, i.e., the ammunition background check because they will never be admitted through the main gate.  The Southern District estimated that in the past two years,[3] as many as 12 million California citizen residents could carry the standard DL, and thus could be completely blocked from purchasing ammunition.  Because selling ammunition to a citizen with only a standard California-issued DL or ID is a misdemeanor,[4] there is no place within California where that citizen can go to buy ammunition.  Moreover, the anti-importation laws block citizens with only standard DLs or IDs from purchasing ammunition through the internet or from bringing ammunition purchased outside of California back into California.  Without a REAL ID, a person must present a U.S. Passport or a certified birth certificate along with their standard California DL, neither of which are obtained quickly or inexpensively.[5]

Statistics showed that for the 640,000 California citizens succeeding past the main gate, 616,257 chose Door No. 1 amongst the four doors.  Door No. 1, the “Standard” background check, was intended for people who had previously bought a firearm through a California licensed firearm dealer or who have registered a firearm.  With the Standard background check, there were 188 would-be purchasers identified as “prohibited persons” (felons, fugitives, violent misdemeanants, etc.) and denied authorization to purchase ammunition.  The Standard background check also rejected 101,047 other citizen residents mostly because the State had no record of gun ownership or because of identifier mismatches.  Thus, 16% of those who established their citizenship were rejected and prevented from lawfully acquiring ammunition and 0.030% of those who made it through the main gate were found to be prohibited persons.  For those rejected, the reason for the rejection was not conveyed immediately, and the subsequent process of identifying the specific reason for rejection or the particular mismatched data was often complicated and time-consuming.

Door No. 2, the “Basic” background check, also had drawbacks of rejecting non-prohibited persons improperly and for 75% of the time involved a manual review that could last up to more than a week and required a return trip to the same store on another day to acquire the ammunition.  Door No. 3, the C.O.E. Verification check, was quick and cheap, but was only for those who had already gone through a long, expensive, and difficult process of obtaining a C.O.E.  Door No. 4 led to the new firearms showroom where a person purchases a firearm and submits to an expensive and slow full background check conducted through federal and state databases.  Though based on complete database searches and live analyst reviews, background checks for Doors No. 2 and No. 4, were good for one purchase only—just like a Door No. 1 check.

Proposition 63’s Prohibitions on Ammunition Importation

Proposition 63 also prohibited a seller of ammunition physically located beyond California from selling directly to customers in California. (Section 30312(b).)  Prior to January 1, 2018, any merchant physically located outside California was allowed to sell ammunition directly to a customer in California, whether the transaction was done by U.S. Mail, email, an internet web store, a text message, or a telephone.

Plaintiffs’ Motion for Preliminary Injunction

A group of U.S. citizens residing in California,[6] an association of firearm owners, and several out-of-state ammunition sellers (“Plaintiffs”) sought a preliminary injunction enjoining California’s new laws pertaining to ammunition.  Plaintiffs brought a facial challenge through 42 U.S.C. section 1983 seeking a declaratory judgment that Penal Code sections 30312, 30314, 30342, 30347, 30348, 30350, 30352, 30370, 30385, 30390, and 30395, as well as California Code of Regulations, title 11 section 4263, were unconstitutional on their face or, alternatively, as applied to plaintiffs, because these sections violated the Second and Fourteenth Amendments to the United States Constitution.

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

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

Discussion

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

Although the Second Amendment does not explicitly mention ammunition, “the right to possess firearms for protection implies a corresponding right to obtain the bullets necessary to use them.”  Jackson v. City & Cty. of San Francisco, 746 F.3d 953, 967 (9th Cir. 2014) (quotation marks omitted).  The right to bear arms includes at least the right to keep and carry ammunition for both self-defense and to be ready to serve in a militia.  United States v. Miller, 307 U.S. 174, 179-80 (1939).[7]

The District Court observed that with regards to related California law, “the State has enacted incrementally a burdensome web of restrictions on the Second Amendment rights of law-abiding responsible gun owners.  The ammunition background check system and anti-importation laws add even more complexity….”  The Court observed that “California already has an universal background check for firearms, an ‘assault weapon’ ban, a ban on magazines holding more than 10 rounds, a gun registry, firearm confiscation orders, a minimum gun purchase age of 21 years, a limit of one firearm purchase per month, a requirement that would-be gun buyers first earn a safety certificate, a 10-day waiting period on gun purchases even for persons who already own a firearm, a ban on campus carry for self-defense, a ban on K-12 teachers being armed for self-defense, a ban on openly carrying a firearm, a highly restrictive concealed carry law, and a moribund roster of handguns permitted for retail sale, among others.”

In their motion for preliminary injunction, Plaintiffs argued that the new ammunition background check system violated the Second Amendment.  In arguing against the motion for preliminary injunction, the California Attorney General contended that the system successfully prevented prohibited persons from acquiring ammunition and that rejections to lawful would-be purchasers were easily resolved.  The California Attorney General did not contest the idea that acquiring and keeping ammunition was protected by the Second Amendment.  However, the Attorney General argued as most relevant here for the Court’s analysis that the background check system was a reasonable fit to achieve the State’s legitimate public safety interest of keeping ammunition out of the hands of prohibited Californians.

Preliminary Injunction Standard

The Court explained that the standard for issuing a preliminary injunction requires a plaintiff to establish: (1) that he is likely to succeed on the merits; (2) that he is likely to suffer irreparable harm in the absence of preliminary relief; (3) that the balance of equities tips in his favor; and (4) that an injunction is in the public interest.  Winter v. NRDC, Inc., 555 U.S. 7, 20 (2008); Doe v. Harris, 772 F.3d 563, 570 (9th Cir. 2014).

Considering the likelihood of success on the merits, the Southern District observed that for a Second Amendment challenge, the Ninth Circuit Court of Appeals uses a more complex test than the test presented by Heller.  Heller asks whether the challenged law bans the types of firearms commonly used for a lawful purpose.  The Southern District explained that as applied to laws prohibiting ammunition, the simple Heller test would ask:  is the ammunition commonly used by law-abiding citizens for a lawful purpose?  If yes, then it is protected ammunition.  The Court found it obvious that the California background check laws that fully blocked some law-abiding responsible citizens from buying common ammunition were unconstitutional, thus failing the Heller test.

The Southern District proceeded with the Ninth Circuit’s method of inquiry, which involved looking at how close the challenged statute struck at the core of the Second Amendment right, followed by a determination of how severe the statute burdened the Second Amendment right.

Here, the Southern District found that the California statutes directly burdened the Second Amendment right directly to its core, which was the right to defend one’s self, family, and home because under California law resulting from Proposition 63, a citizen resident unable to pass the background check for whatever reason may not purchase ordinary ammunition at all.  The Court also found that the California state statutes not only burdened the core of the Second Amendment, but often imposed upon the core the most severe burden — a complete ban.  The Court noted that at least 101,047 or 16.4% of applying citizen residents had not been able to buy ammunition, thereby suffering the severest burden.  The Court explained that “because a severe restriction on the core right of self-defense amounts to a destruction of the Second Amendment right, it is unconstitutional under any level of scrutiny.  Once again, judicial review could end right here.  Where a law imposes the severest burden on the core of the Second Amendment right for 101,047 citizen residents (and counting), the law is unconstitutional per se.[8]

The Intermediate Scrutiny Standard

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

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

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

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

Here, the Court explained that the government had not demonstrated that the blanket background check system would alleviate harm in a direct and material way without unnecessarily burdening the rights of citizens.  The Court explained that so far, the benefit of the background check laws was “that a very small number[9] of prohibited persons have been denied authorization to buy ammunition at a licensed ammunition vendor.”  The Court also observed that the State did not provide any data on the amount prohibited out of this “very small number” of denied prohibited person because of unlawful alien status.

Considering the burden on the other hand, the Court observed that over 101,047 citizen residents who were not prohibited persons, yet still failed a background check, were unable to exercise their Second Amendment right to acquire ammunition for their firearms.  The Court stated that the California background check system’s long-term average rejection rate of 16.4% suggested that the system was deeply flawed, observing that Californians purchasing firearms using the federal NICS background system failed background checks at a much lower rate of approximately 1.1%.[10]

The Court also believed that “an untold additional number of ammunition purchasers were turned away or deterred and did not even start a background check” due to the difficulties of passing through the aforementioned main gate.  The Court observed that the State’s own predicted annual estimate of 13 million ammunition transactions with Standard background checks vastly overstated the actual results, with only about 636,000 Standard and Basic background check transactions over a 7- month period (roughly 8% of the State’s expectations).  To account for this disparity, the Court posted that the background checks could have had “incredibly chilling effects on law-abiding gun owners,” or possibly “the onerous and inescapable burden these background check laws impose are forcing purchasers to find alternative, possibly illicit, sources.”  Moreover, only 14% of the 4.5 million California gun owners on the electronic Automated Firearms System (“AFS”) list had tried to buy ammunition with a background check.

The Southern District Court cited an obvious absence of legislative history for California’s ammunition background check “experiment” to support the State’s cause.  The Court noted that in another such experiment, the federal Gun Control Act of 1968 (which both required ammunition recordkeeping and prohibited interstate mail-order ammunition sales), was repealed after 18 years because the federal Bureau of Alcohol Tobacco and Firearms and the Treasury Department said the ammunition recordkeeping had no substantial law enforcement value.

As for studies in the record proffered by the State, the Court determined that none of the studies suggested that the new regulations would achieve the State’s interest of reducing gun violence.  To the contrary, the studies indicated that persons with criminal intent would avoid background checks by using alternative sources such as out-of-state retailers, private person-to-person transfers, or straw buyers.  The Court found that the State’s “experiment is based on a naive assumption that prohibited persons will subject themselves to background checks to buy ammunition,” adding that “criminals, tyrants, and terrorists don’t do background checks.”  Meanwhile, the Court stated that these ammunition statutes unduly and severely burdened the Second Amendment rights of responsible, gun-owning citizens who desired to lawfully buy ammunition.  The Southern District determined that the evidence did not support the notion that Proposition 63’s background check and anti-importation provisions for ammunition acquisition would make the public safer.

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

For these reasons, the Court concluded the government had not carried its burden of demonstrating that the restriction of Second Amendment rights resulting from the laws here were a reasonable fit for the asserted substantial interest.  The Court instead found “[t]he fit [wa]s that of a large square peg for a small round hole.”

The Southern District concluded its discussion of the merits of the State’s ammunition background check system by discussing the government’s infringements upon a law-abiding citizen’s constitutionally-protected right to keep and bear firearms and ammunition.  The Court explained that no legislature or popular vote had the constitutional authority to dictate to a citizen that he or she could not acquire ordinary and popular ammunition for his or her guns.  Nor could the acquisition process “be made so unreasonably difficult that she simply throws up her hands and surrenders the right.”  Thus, the Court found that Plaintiffs had made a sufficient showing of their likelihood of succeeding on the merits of the Second Amendment claims.

Ammunition Anti-Importation Laws and the Commerce Clause

Plaintiffs also claimed that Proposition 63’s anti-importation provisions violated the Commerce Clause because they favored businesses in California by erecting a barrier to ammunition sellers in other states.

The Commerce Clause, Article I, section 8, clause 3 of the United States Constitution, gives Congress the power “[t]o regulate commerce … among the several states.”  Courts have consistently held that this affirmative grant of power to Congress includes a negative implication, which restricts the ability of states to regulate and interfere with interstate commerce.  Tenn. Wine & Spirits Retailers Ass’n v. Thomas, 139 S. Ct. 2449, 2459 (2019); Camps Newfound/Owatonna, Inc. v. Town of Harrison, Maine, 520 U.S. 564, 571 (1997).  That restriction upon the states, referred to as the dormant Commerce Clause, “prohibits economic protectionism — that is, ‘regulatory measures designed to benefit in-state economic interests by burdening out-of-state competitors.’“  Fulton Corp. v. Faulkner, 516 U.S. 325, 330 (1996).  Under the dormant Commerce Clause, courts “protect[ ] the free flow of commerce, and thereby safeguard[ ] Congress’ latent power from encroachment by the several States[ ]” when Congress has not affirmatively exercised its Commerce Clause power.  Merrion v. Jicarilla Apache Indian Tribe, 455 U.S. 130, 154 (1982).

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

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

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

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

In the second tier, where a statute regulates even-handedly to effectuate a local public interest and has only incidental effects on interstate commerce, courts weigh whether the burden on commerce is excessive in relation to the putative local benefit.  Pike v. Bruce Church, Inc., 397 U.S. 137, 142 (1970).  The Court found reason to infer that Proposition 63 would significantly burden interstate commerce in ammunition, noting that out-of-state firms could administer the same background checks for ammunition purchases as California sellers did.

The Attorney General contended that stopping the flow of ammunition into the state was a matter of public safety, but the Southern District explained that Granholm stated that “[o]ur Commerce Clause cases demand more than mere speculation to support discrimination against out-of-state goods.  The burden is on the State to show that the discrimination is demonstrably justified.”  Id. at 492 (internal quotation marks omitted).

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

Having at last resolved the merits of both aspects of Plaintiffs’ claims, the Southern District addressed the final three elements of the preliminary injunction standard relatively quickly.  The Court found that Plaintiffs had carried their burden to show the likelihood of irreparable harm because, as with First Amendment harms, the loss of Second Amendment freedoms even for minimal times constituted irreparable injury.[11]  Moreover, the Court explained that for those intending ammunition for self-defense, loss of the peace of mind coming from knowing one could protect oneself if necessary, loss of the ability to acquire ammunition when needed, and the loss of enjoyment of Second Amend rights constituted irreparable injury.

As to the third element, the balance of hardships, the Court found that the hardships faced by Plaintiffs significantly outweighed those faced by the State of California because the ammunition background check statutes threatened criminal prosecution on sellers and residents, and posed the potential for harm by inhibiting Plaintiffs’ ability to defend themselves, their families, and their properties.

As to the final element for the preliminary injunction standard, the Court found that the public interest favored the exercise of Second Amendment rights by law-abiding responsible citizens because “[i]t is always in the public interest to prevent government from violating a citizen’s constitutional rights.”  The Court added that “the public interest also lies in maintaining the unitary strength of the many United States of America, which dormant Commerce Clause principles support… The anti-importation provisions insulate the state from ammunition commerce and competition from the other states.  The United States Congress may have the authority to do that, but not state lawmakers.”

The United States District Court for the Southern District of California declared its general conclusion early in its decision: “The experiment has been tried.  The casualties have been counted.  California’s new ammunition background check law misfires and the Second Amendment rights of California citizens have been gravely injured.”  The Court accordingly granted Plaintiffs’ motion for preliminary injunction, and enjoined the State of California from enforcing the ammunition sales background check provisions in California Penal Code sections 30370(a) through (d) and 30352, and the ammunition anti-importation provisions in Sections 30312(a) and (b), 30314(a).

HOW THIS AFFECTS YOUR AGENCY

Agencies should observe that as the Court noted that while this motion had been pending, the Governor has signed additional new “gun violence prevention” laws into existence (including a firearm precursor part background check).  With the Southern District’s rejection of the State’s approach to its prevention goals, such laws will likely encounter similar challenges.  In addition, as noted above, the District Court’s preliminary injunction has been stayed by the Ninth Circuit.  Based upon the underlying nature of this legal challenge, and past history concerning such cases, we can anticipate an extended legal battle to determine the precise contours of the Second Amendment with respect to ammunition purchases in California.

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. Dist. LEXIS 71893 (S.D. Cal. Apr. 23, 2020).

[2] (a)

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

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

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

[3] Beginning two years ago, the DMV began issuing standard DLs for citizens and the DLs for unlawfully present aliens that looked identical.

[4] See Section 30312.

[5] According to Plaintiffs, U.S. Passport would require citizens to pay fees of at least $145 and require a wait approximately six to eight weeks. The alternative to obtaining a passport is a certified copy of a state birth certificate. If a person does not possess a certified copy of their birth certificate, according to the Plaintiffs, obtaining a copy will require a search costing up to $34 and taking up to 22 weeks. Obtaining a certified copy of a California birth certificate may take between 3.5 weeks and 7.5 weeks.

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

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

[8] See Bauer v. Becerra, 858 F.3d 1216, 1222 (9th Cir. 2017): “‘A law that imposes such a severe restriction on the fundamental right of self-defense of the home that it amounts to a destruction of the Second Amendment right is unconstitutional under any level of scrutiny.’” (quoting Silvester v. Harris, 843 F.3d 816, 821 (9th Cir. 2016).

[9] Statistics revealed that 0.030% of those who made it through the main gate were found to be prohibited persons.

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

[11] See the Ninth Circuit decision in Associated Press v. Otter, 682 F.3d 821, 826 (9th Cir. 2012) (alteration in original) (quoting Elrod v. Burns, 427 U.S. 347, 373, 96 S. Ct. 2673, 49 L. Ed. 2d 547 (1976)): “…[t]he loss of First Amendment freedoms, for even minimal periods of time, unquestionably constitutes irreparable injury.”

On April 22, 2020, Governor Newsom issued Executive Order N-54-20 (“the Order”) in which are addressed the suspension for sixty (60) days the period within which to perform certain duties.  Among these, at paragraphs 1 through 7, are time limits related to registration of vehicles, the most important of which are paragraphs 3 and 5 for purposes of this Alert.

Paragraph 5 of the Order provides that:

The provisions of Vehicle Code sections 4000(a)(1) and 5204(a) pertaining to the registration and registration display requirements for vehicles operated upon a highway are hereby suspended until June 30, 2020.  This suspension is applicable to registrations expired on or after March 4, 2020 and before June 30, 2020.  Additionally, until June 30, 2020, vehicles with registration expiring between September 4, 2019, and January 1, 2020, are exempt from the associated storage authority outlined in Vehicle Code section 22651(o)(1)(a).

Reasonable suspicion for a traffic stop based on an officer’s observation of expired registration tabs would not, under this Order, exist for tags which expired “on or after March 4, 2020 and before June 30, 2020.”  See Pa. v. Mimms, 434 U.S. 106, 109 (1977) [noting that expired registration permitted officers to effect traffic stop]; Whren v. United States, 135 L. Ed. 2d 89, 116 S. Ct. 1769, 1776 (1996) [violation of a minor traffic infraction justified vehicle stop by police, even if that stop was pretextual, because police have authority to issue citations for minor traffic infractions].

Furthermore, “. . . until June 30, 2020, vehicles with registration expiring between September 4, 2019, and January 1, 2020, are exempt from the storage pursuant to Vehicle Code section 22651(o)(1)(a).”

These suspensions of enforcement expire on June 30, 2020.  Enforcement authority remains unchanged where the registration or license plate tags expired before March 3, 2020.

Of perhaps lesser importance for line personnel, paragraph 3 of the Order suspends enforcement for an expired permit for the temporary operation of a vehicle.  This pertains to expirations occurring after March 4, 2020 or that will occur within 60 days of the April 22, 2020 issuance of the Order.

Similarly, the period for the registration in California for a vehicle last registered in another state is suspended for 60 days from April 22, 2020.

HOW THIS AFFECTS YOUR AGENCY

These temporary restrictions were put in place in recognition that in many instances updating vehicle registrations has been difficult or, at times, impossible during the COVID-19 emergency.

The impact of this Order on field enforcement is simply to caution officers to take a closer look at their justification for an enforcement stop, and to know that for the period from now until late June these relatively minor violations covered in the Order are not enforceable, if indeed they were being enforced at all under current policing priorities.  As such, these violations would not provide reasonable suspicion permitting a traffic stop of a vehicle for a registration violation if that violation is unenforceable pursuant to the parameters set forth in the Order.

As always, if you wish to discuss this matter in greater detail, please feel free to contact Paul Coble at (916) 771-0635 or James Touchstone at (714) 446–1400 or via email at prc@jones-mayer.com or 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.

In an 8-1 decision, in Kansas v. Glover,¹ the Supreme Court of the United States held that when an officer lacks information negating an inference that the owner is driving the vehicle, an investigative traffic stop made after running a vehicle’s license plate and learning that the registered owner’s driver’s license has been revoked is reasonable under the Fourth Amendment. In reaching its conclusion, the Court determined that a deputy’s commonsense inference that the owner of the vehicle was likely the vehicle’s driver provided more than reasonable suspicion to initiate the stop.

Background

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

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

The Kansas Supreme Court then reversed the decision of the Court of Appeals. The Kansas Supreme Court held that, absent reasonable suspicion of criminal activity, Deputy Mehrer violated the Fourth Amendment by stopping Glover. According to the court, Deputy Mehrer did not have reasonable suspicion to conduct the traffic stop because his inference that Glover was behind the wheel amounted to “only a hunch” that Glover was engaging in criminal activity.² The Kansas Supreme Court explained that Deputy Mehrer’s “hunch” involved “applying and stacking unstated assumptions that are unreasonable without further factual basis,” namely, that “the registered owner was likely the primary driver of the vehicle” and that “the owner will likely disregard the suspension or revocation order and continue to drive.”³ The United States Supreme Court granted Kansas’ petition for a writ of certiorar i.

Discussion

Majority Opinion

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

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

The Court added that the fact that the registered owner of a vehicle is not always the driver of the vehicle did not negate the reasonableness of Deputy Mehrer’s inference. The Court explained that the reasonable suspicion inquiry “falls considerably short” of 51% accuracy,⁴ because “[t]o be reasonable is not to be perfect.” (Heien v. North Carolina, 574 U. S. 54, 60 (2014).)

The Court declared that although common sense sufficed to justify Deputy Mehrer’s inference, empirical studies demonstrated that drivers with suspended or revoked licenses frequently continued to drive.⁵ Moreover, Kansas’ license-revocation scheme, which covered drivers who had already demonstrated a disregard for the law or were categorically unfit to drive, reinforced the reasonableness of the inference that an individual with a revoked license would continue to drive. The Court thus found that the concerns motivating the State’s various grounds for revocation lent further weight to the inference that a registered owner with a revoked Kansas driver’s license might be the one driving the vehicle.

The Supreme Court found Glover’s counterarguments unpersuasive. Glover argued that Deputy Mehrer’s inference was unreasonable because it was not grounded in his law enforcement training or experience. The Court considered such a requirement to be inconsistent with the Court’s Fourth Amendment jurisprudence. Such a requirement would also place the burden on police officers to justify their inferences by referring to training materials or experience, and it would foreclose their ability to rely on common sense obtained outside of their work duties. The Court also rejected Glover’s argument that Kansas’ view would permit officers to base reasonable suspicion exclusively on probabilities. The Court explained that officers, like jurors, could rely on probabilities in the reasonable suspicion context.⁶ Moreover, the Court found that Deputy Mehrer here did more than simply rely on probabilities in deciding t o make a stop: He combined facts obtained from a database and commonsense judgments to form a reasonable suspicion that a specific individual was potentially engaged in specific criminal activity.

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

Concurring Opinion

In Justice Kagan’s concurring opinion, in which she was joined by Justice Ginsburg, she considered the facts to be uniquely “barebones” and the record relatively incomplete. The concurring justices joined the majority opinion holding that Deputy Mehrer had reasonable suspicion to stop the truck because of the critical fact that Mehrer learned from a state database that Glover, the truck’s owner, had had his license revoked under Kansas law. Because Kansas almost never revoked a license except for serious or repeated driving offenses, a person with a revoked license had already shown a willingness to flout driving restrictions. That fact provided a reason to infer that such a person would drive without a license—at least often enough to warrant an investigatory stop.

The concurring justices found nothing else in the record here to call that inference into question. However, had Kansas merely suspended rather than revoked Glover’s license, and that suspension was for matters completely unrelated to road safety (such as for parking tickets, court fees, or child support) as is common for other States, the majority’s reason for thinking that someone with a revoked license would keep driving – that he has a history of disregarding driving rules—would no longer apply. For the concurring justices, such a scenario would render any common sense invoked in the altered context as not much different than a mere hunch—and therefore not create reasonable suspicion.

Dissenting Opinion

Justice Sotomayor dissented. She disagreed with the majority’s view that seizing Glover’s vehicle was constitutional because drivers with revoked licenses (as opposed to suspended licenses) in Kansas had already demonstrated a disregard for the law or are categorically unfit to drive. Justice Sotomayor found nothing to indicate that Deputy Mehrer had any informed belief about the propensity of unlicensed drivers to operate motor vehicles in the area—much less that he relied on such a belief in seizing Glover. Instead, the majority relied on “common sense” to fill the gap in the factual record to support the deputy’s purported inference that unlicensed drivers routinely continue driving. Justice Sotomayor explained that the consequence of the majority’s approach was to absolve officers from any responsibility to investigate the identity of a driver where feasible, and effectively permitted officers to make a stop based merely on a guess or hunch about the driver’s identity. The dissent found the majority’s approach “paved the road to finding reasonable suspicion based on nothing more than a demographic profile.”

HOW THIS AFFECTS YOUR AGENCY

The Supreme Court majority emphasized that its decision here was narrow in scope and based on the limited facts here and that “the presence of additional facts might dispel reasonable suspicion.” Accordingly, if Deputy Mehrer had observed a female driver of the truck prior to pulling the vehicle over, such a fact likely would have dispelled reasonable suspicion to conduct the traffic stop, as there would have been an additional fact indicative that Glover was not the driver of the vehicle. Agencies should also note that the facts in the record were very limited. Neither Glover nor Deputy Mehrer testified at the suppression hearing. Instead both stipulated to a sparse seven facts that comprise the record in this case.

In sum, the “totality of the circumstances” remains the fundamental aspect of Fourth Amendment jurisprudence. These circumstances can be based upon common sense, outside a law enforcement officer’s training. As the Court noted, “[n]othing in our Fourth Amendment precedent supports the notion that, in determining whether reasonable suspicion exists, an officer can draft inferences based on knowledge gained only through law enforcement training and experience.” The Court further observed, “[w]e have repeatedly recognized the opposite.”

As always, if you wish to discuss this matter in greater detail, please feel free to contact James 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

Citations:

1. 2020 U.S. LEXIS 2178 (Apr. 6, 2020).
2. 308 Kan. 590, 591, 422 P. 3d 64, 66 (2018).
3. Id., at 595-597, 422 P. 3d, at 68-70.
4. See United States v. Arvizu, 534 U. S. 266, 274 (2002).
5. See, e.g., 2 T. Neuman et al., National Coop. Hwy. Research Program Report 500: A Guide for Addressing Collisions Involving Unlicensed Drivers and Drivers With Suspended or Revoked Licenses, p. III-1 (2003) (noting that 75% of drivers with suspended or revoked licenses continue to drive).
6. See, e.g., United States v. Sokolow, 490 U. S. 1, 8-9 (1989).

A recurrent question of late has been what, if any, information can be relayed to first responders – Police and Fire Emergency Medical Services (“EMS”) concerning potential COVID-19 exposure from a given person and/or location.  Fortunately, guidance has now been had from the U.S. Department of Health and Human Services in an online bulletin received March 31, 2020^[1].  Fundamentally, this bulletin establishes that a “covered entity,” within the meaning of HIPAA, may make certain Personal Health Information (“PHI”) available to first responders under specified circumstances such as to prevent spread of a disease or to protect themselves from exposure to a threat to their health, such as COVID-19.

What is meant by “first responders” is commonly understood to be emergency fire, police or medical personnel who are, literally, the first to respond to emergent situations of death, injury or disease.

But what is meant by the term “covered entity” under HIPAA?  According to the National Institutes of Health:

Covered entities are defined in the HIPAA rules as (1) health plans, (2) health care clearinghouses, and (3) health care providers who electronically transmit any health information in connection with transactions for which HHS has adopted standards.  Generally, these transactions concern billing and payment for services or insurance coverage.  For example, hospitals, academic medical centers, physicians, and other health care providers who electronically transmit claims transaction information directly or through an intermediary to a health plan are covered entities.  Covered entities can be institutions, organizations, or persons.

Certainly, this would include health care providers, clinics, hospitals, and local health officials, as well as cover emergency medical responders such as Fire and EMS.  Police might not fit within the meaning of a “covered entity” which can make such disclosures^[2] unless in a jurisdiction where law enforcement provides emergency medical care as part of its public safety mandate.  HHS notes that even a non-covered entity may make such disclosures in the interest of protecting the health of first responders.

For instance:

“A covered entity, such as a hospital, may provide a list of the names and addresses of all individuals it knows to have tested positive, or received treatment, for COVID-19 to an EMS dispatch for use on a per-call basis.  The EMS dispatch (even if it is a covered entity) would be allowed to use information on the list to inform EMS personnel who are responding to any particular emergency call so that they can take extra precautions or use personal protective equipment (“PPE”).”

HHS further addressed the issue of inquiries by 911 call centers to callers to attempt to determine if first responders should be placed on notice of the potential for exposure to a disease, such as COVID-19, on a particular call.  Specifically, HHS provided the following example:

“Example: A 911 call center may ask screening questions of all callers, for example, their temperature, or whether they have a cough or difficulty breathing, to identify potential cases of COVID-19. To the extent that the call center may be a HIPAA covered entity, the call center is permitted to inform a police officer being dispatched to the scene of the name, address, and screening results of the persons who may be encountered so that the officer can take extra precautions or use PPE to lessen the officer’s risk of exposure to COVID-19, even if the subject of the dispatch is for a non-medical situation.

Discussion: Under this example, a 911 call center that is a covered entity should only disclose the minimum amount of information that the officer needs to take appropriate precautions to minimize the risk of exposure. Depending on the circumstances, the minimum necessary PHI may include, for example, an individual’s name and the result of the screening.” (Emphasis added.)

HOW THIS AFFECTS YOUR AGENCY

While first responders can be provided this information, care must be taken not to unnecessarily disclose or make public PHI.  The dispatch center should not post the contents of a list of persons with COVID-19, such as on a website or through distribution to the media; nor should it send compiled lists of individuals to first responders.  Disclosures should be made on a per-call basis.

Another practical concern is how information is communicated on a per-call basis.  If the local agency is not equipped with either secure in-vehicle computers or encrypted radio transmissions, responding personnel should be directed to contact the dispatch center via secure phone connection to receive PHI related to the call for service.  Discretion is of paramount importance, and personnel must not discuss PHI except to the extent it is relevant to the proper handling of the given call for service.

As always, if you wish to discuss this matter in greater detail, please feel free to contact Paul Coble at (916) 771–0635 or via email at prc@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] Go to https://www.hhs.gov/sites/default/files/february-2020-hipaa-and-novel-coronavirus.pdf

[2] While a police department itself may not be deemed a covered entity, the City itself would be if it provides fire, paramedics, ambulance services and/or police services by means of which PHI can be obtained by an individual employee in the course of their job duties.  As a result, all employees who may receive such information are bound to hold it in confidence.