CONSTITUTIONAL LAW/POLICE CONDUCT

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

“Officer Herrera: What do you …

“[Defendant:] … I need to find out …

“Officer Herrera: Paul.

“[Defendant:] … I need to find out.

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

“[Defendant:] (No response)”

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

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

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

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

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

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

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

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

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

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

PUBLIC EMPLOYMENT

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

MARIJUANA

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

MISCELLANEOUS

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Major Crimes Act, McGirt, and the Creek Nation

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

The Supreme Court accordingly affirmed.

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

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

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

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

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

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

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

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

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

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

Proposition 57 took effect in November 2016, with express purposes including saving money by reducing wasteful spending on prisons and to “[s]top the revolving door of crime by emphasizing rehabilitation…”[40] Among the provisions added by Proposition 57 was Section 32 of article I of the California Constitution. Section 32 provides in relevant part that “[a]ny person convicted of a nonviolent felony offense and sentenced to state prison shall be eligible for parole consideration after completing the full term for his or her primary offense.” (Cal. Const., art. I section 32.) Proposition 57’s Voter Information Guide provided that “[t]his act shall be liberally construed to effectuate its purposes.”

After Proposition 57 took effect, the California Department of Corrections and Rehabilitation (“CDCR”) adopted regulations implementing early parole consideration for inmates under Section 32. The CDCR’s regulations provided that “an inmate is not eligible for a parole consideration hearing by the Board of Parole Hearings under [Cal. Code Regs., tit. 15, section 2449.32 (early parole consideration under Section 32)] if the inmate is convicted of a sexual offense that currently requires or will require registration as a sex offender under the Sex Offender Registration Act, codified in Sections 290 through 290.024 of the Penal Code.”[41] The CDCR enacted this restrictive regulation because, in its view, “‘these sex offenses demonstrate a sufficient degree of violence and represent an unreasonable risk to public safety to require that sex offenders be excluded from nonviolent parole consideration.’” (In re Gadlin (2019) 31 Cal.App.5th 784, 788.)

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

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

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

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

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

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

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

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

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

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

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

[8] See Cal. Penal Code section 25400.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

[28] See Id., section 10153.

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

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

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

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

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

[33] Id., at p. 891.

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

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

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

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

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

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

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

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

COVID-19 EMERGENCY

The Judicial Council’s Emergency Rule 4’s bail schedule sets presumptive bail amount for covered offenses and violations, which may be modified by superior court.

Ayala v. Superior Court, 48 Cal. App. 5th 387 (4th Dist. 2020)

Facts: Responding to the state of emergency existing in the State of California as a result of the ongoing COVID-19 pandemic, 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.

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.

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. 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 (emphasis added), 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).)

San Diego Superior Court’s General Order

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 superior court’s order. After a hearing, the presiding judge, in a written opinion, overruled the public defender’s objection.

Pursuant to the 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.

Held: The California 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.

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 of Appeal declared that the rule could reasonably be interpreted to preserve the superior 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. 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.

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.

For a more detailed discussion of this case, please see Client Alert Vol. 35, No. 18, available at www.jones-mayer.com.

CONSTITUTIONAL LAW

A. Officer’s misstatement during Mirandized capital defendant’s interrogation that there was no death penalty in California did not prompt defendant’s confessions.

Benson v. Chappell, 958 F.3d 801 (9th Cir. 2020)

Facts: In January 1986, Richard Allen Benson deliberately murdered Laura Camargo and her two-year old son, and sexually molested her four-year-old and three-year-old daughters, before brutally murdering both girls. He then set the family’s home on fire and fled the scene. The next day, Benson kidnapped and threatened the life of another woman, K.S. After Benson made K.S. drive to an abandoned house, he went inside. K.S. then drove to her home and called the police. She later accompanied police to the abandoned house, and police arrested Benson. He was booked late that night in connection with the woman’s kidnapping.

In the morning of January 9, 1986, Detective Bolts and Investigator Hobson began interviewing Benson in an office at the San Luis Obispo County Detective Bureau. Benson was initially detained on a parole hold based on his kidnaping of K.S. At the beginning of the interview, Bolts read Benson his Miranda[4] rights, and Benson indicated that he understood his rights and waived them. After initially focusing on a charge of kidnapping K.S., the officers then shifted their focus to the events that occurred at Camargo’s home. Bolts commented, “I think we could perhaps start anew and talk about some things that occurred Saturday night and talk some straight turkey.” Benson said “as it looks right now, I’m a very suspected man,” and expressed concern that for him, it was “the end of the line.” After Bolts inquired, “Why? There’s no death penalty here,” Benson replied, “That doesn’t matter.” Benson subsequently confessed to sexually molesting Camargo’s two daughters, and murdering Camargo, her daughters, and Camargo’s two-year old son.

Benson was returned to jail and booked him on murder and other charges. The next morning, Dr. Gordon of the Sexual Assault and Response Team visited Benson. According to Dr. Gordon’s testimony, he told Benson that he was a doctor and he advised Benson of his constitutional rights including the right to remain silent and the right to an attorney. Benson agreed to talk to him and proceeded to describe his sexual molestation of the two girls in some detail.

On January 13, 1986, Bolts and Hobson interviewed Benson again. Benson was again advised of his Miranda rights and waived them. Benson then provided further details of the crimes. Near the end of the interview, the following dialogue transpired:

Bolts: . . . [J]ust so that I’m clear, is there something that we’ve said uh, as far as, you know, threats that we’ve made to you, promises or any promises of leniency, anything that has caused you to tell us what you’ve told us?

Benson: No. I’m surprised that that came up.

Bolts: Well, I, it’s something that uh, you know, I’ve thought of, that maybe something that we said you interpreted as some kind of threat or promise or some . . .

Benson: You know what, if you guys started whipping me with billy clubs right now, you’d see me smile, so you know that’s not uh, a . . . now, no, you guys are good at your job, I complimented you to your lieutenant about it as a matter of fact, uh, I’m glad you are, because it served in getting me off the street, you know, I feel that in some sick twisted way I helped a little, but you guys still . . . you did your job.

Benson was subsequently charged with murder, child molestation, arson, and kidnapping.

In February 1986, on the first day of trial, the court ruled on Benson’s motion to suppress his confessions to the officers. At the suppression hearing, Benson stated that when Detective Bolts commented that there was “no death penalty here,” Benson thought Bolts meant that “the death penalty was dormant in California, and that they weren’t seeking the death penalty….” When asked why he gave information to the police, Benson testified that “there’s no one answer to that.” The trial court judge denied the motion, concluding that he was “persuaded beyond a reasonable doubt that Mr. Benson’s statements were not coerced by promise of leniency, but rather were made freely and voluntarily.”

A jury found Benson guilty of the charges and Benson was sentenced to death. After his conviction and sentence were affirmed and the California Supreme Court denied several habeas petitions, Benson filed a federal habeas petition with the United States District Court for the Central District of California. The District Court denied the petition. Benson appealed.

Held: On appeal, Benson argued, among other things, that his confessions that he made to Bolts and Hobson should have been suppressed. Benson claimed that his statements were not voluntary because he relied on the officer’s statement that there was no death penalty and that the interrogations were coercive.

The Ninth Circuit Court of Appeals explained that because Benson’s claims were subject to review under the Antiterrorism and Effective Death Penalty Act (“AEDPA”), 28 U.S.C. section 2254, to be granted relief, he must show that the California Supreme Court’s denials of his claims were “contrary to, or involved an unreasonable application of, clearly established Federal law,” or were “based on an unreasonable determination of the facts.” 28 U.S.C. section 2254(d).

The Ninth Circuit observed that Benson admitted that he was advised of his Miranda rights prior to each of his police interviews and he indicated that he understood those rights and waived them. The Ninth Circuit noted that the trial court had found that that the police officers had not been coercive and that their statement regarding the death penalty did not function as an inducement. The trial court had thus concluded that “Mr. Benson’s statements were not coerced . . . but rather were made freely and voluntarily.” The Ninth Circuit further noted that the California Supreme Court, after a review of the record, determined that Benson’s confession was “voluntary beyond a reasonable doubt.”[5] The Supreme Court had found that there was “[n]o coercion, no harassment. To the contrary, [the police interview] was strangely cordial and somewhat light, and not at all heavy-handed in the approach that was taken.”[6] The Supreme Court had also noted that there was a “not insubstantial” period of time between Detective Bolts’s statement about the death penalty and Benson’s ultimate confession, and that Benson’s statement “it doesn’t matter” in response to Bolts’ comment “practically compel[led] the inference that insofar as the confessions were concerned, the comment in fact ‘didn’t matter.’”[7]

The Ninth Circuit explained that with regard to coerced confessions, the “pivotal question . . . is whether the defendant’s will was overborne when the defendant confessed.” United States v. Miller, 984 F.2d 1028, 1031 (9th Cir. 1993). The Ninth Circuit noted that the California Supreme Court was presented with evidence that Benson understood the questions being asked of him and volunteered a confession. Benson stated that the existence of a death penalty “didn’t matter” and the interrogation was not coercive. Benson testified that his “primary thought was nothing was going to change the effect of the people that died. Nothing was going to bring them back.” He noted that there was “no one answer” to explain why he decided to confess, and he indicated on several occasions that he felt relieved by admitting his actions. The California Supreme Court had therefore concluded that Benson’s will was not overborne by the misstatement about the law regarding the death penalty in California.

The Ninth Circuit concluded that the California Supreme Court’s decision was neither “an unreasonable application, of clearly established Federal law, as determined by the Supreme Court of the United States,” nor “based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.” 28 U.S.C. section 2254(d)(1)-(2). The Ninth Circuit found that the California Supreme Court had reasonably concluded that Benson’s confessions were voluntary.

The Circuit Court also found against Benson in his other claims on appeal. The Ninth Circuit Court of Appeals accordingly affirmed the District Court’s denial of Benson’s petition for a writ of habeas corpus.

B. No reasonable expectation of privacy in the historical location data of rental vehicle after defendant failed to return it by the contract due date where there was no policy or practice of the rental company permitting lessees to keep cars beyond the rental period.

United States v. Yang, 958 F.3d 851 (9th Cir. 2020)

Facts: In April 2016, Jay Yang was observed on surveillance cameras driving a rented GMC Yukon and stealing mail out of collection boxes at a Las Vegas post office. U.S. Postal Inspector Justin Steele spoke with Prestige Motors, the company from which Yang rented the Yukon. Inspector Steele was informed that the vehicle was approximately six days overdue and that Prestige had attempted to repossess the vehicle by activating its Global Positioning System unit (“GPS”) and remotely disabling the vehicle. Inspector Steele was also informed that the vehicle was not at the location indicated and that the GPS unit was no longer functioning, apparently having been disabled by a third party.

Inspector Steele queried the largest license plate-location database in the country called LEARN, operated by a private company called Vigilant Solutions, with hopes of locating the Yukon and Yang. The database receives license plate images and GPS coordinates from digital cameras mounted on tow truck, repossession company, and law enforcement vehicles. These camera-mounted vehicles photograph any license plate they encounter while driving around in the course of business. The Automatic License Plate Recognition (“ALPR”) technology loaded on a laptop inside the camera-mounted vehicles interprets the alphanumeric characters depicted on the plate into machine-readable text and records the latitude and longitude of a vehicle the moment it photographs a license plate. The software also generates a range of addresses estimated to be associated with these GPS coordinates. This information is uploaded to the database and is searchable by law enforcement agencies that pay a subscription fee.

When Inspector Steele entered the license plate number for the Yukon in the LEARN database, his query revealed that the vehicle had been photographed after the deadline to return the Yukon had passed. Inspector Steele promptly proceeded to the gated condominium complex that had been identified by the ALPR software as most closely associated with the GPS coordinates of the repossession vehicle at the time it photographed the Yukon’s plate. Inspector Steele soon located Yang at his residence and the Yukon. After further investigation and visual surveillance, Inspector Steele obtained a warrant to search Yang’s residence. There, he found devices known to be used for stealing mail out of mailboxes, numerous pieces of stolen mail, and a pistol. After waiving his Miranda rights, Yang spoke to law enforcement and admitted to stealing mail from collection boxes in the area and to owning the firearm.

In July 2016, a federal grand jury in the District of Nevada returned an indictment against Yang, charging him with receipt of stolen mail in violation of 18 U.S.C. section 1708, and being a prohibited person in possession of a firearm in violation of 18 U.S.C. sections 922(g)(1) and 924(a)(2). Yang moved to suppress the evidence seized from his residence and the statements he made to law enforcement on the basis that the search warrant obtained by the Postal Inspection Service relied on evidence that was obtained illegally. Yang argued that the ALPR technology used by Inspector Steele without a warrant to track and locate the Yukon within Yang’s gated condominium complex constituted a “search” under the Fourth Amendment.

The District Court denied Yang’s motion to suppress. Yang pled guilty to the charged offenses, reserving the right to appeal the District Court’s denial of his motion to suppress. The District Court accepted Yang’s conditional plea and sentenced Yang to 35 months in prison and three years of supervised release. Yang appealed.

Held: The Ninth Circuit Court of Appeals considered whether Yang had a reasonable expectation of privacy in his movements as revealed by the historical location data of the Yukon that was not returned by the rental contract due date. The Court explained that whether an individual has a Fourth Amendment privacy interest normally embraces two questions. Bond v. United States, 529 U.S. 334, 338 (2000). “First, we ask whether the individual, by his conduct, has exhibited an actual expectation of privacy; that is, whether he has shown that ‘he [sought] to preserve [something] as private.’“ Id. (quoting Smith v. Maryland, 442 U.S. 735, 740 (1979) (internal quotation marks omitted)). “Second, we inquire whether the individual’s expectation of privacy is ‘one that society is prepared to recognize as reasonable.’” Id. (quoting Smith, 442 U.S. at 740). The burden of proof is on a defendant to demonstrate that he has a reasonable expectation of privacy in the subject of the Government’s warrantless search. See United States v. Caymen, 404 F.3d 1196, 1199 (9th Cir. 2005).

The Ninth Circuit explained that while the mere expiration of the rental period does not automatically end a lessee’s expectation of privacy,[8] the Court nonetheless concluded that Yang had failed to establish that he had a reasonable expectation of privacy in the historical location information of the Yukon under the facts of this case. The Court explained that there was no evidence in the record that Prestige Motors had a policy or practice of allowing lessees to keep cars beyond the rental period and simply charging them for the extra time. The Court observed that Prestige had made affirmative attempts to repossess the vehicle by activating the GPS unit to locate and disable the vehicle.

The Court declared that it was “simply unwilling to conclude that a person has a reasonable expectation of privacy in his movements as revealed by the historical location data of a rental vehicle after failing to return the vehicle by the contract due date, when there is no policy or practice of the rental company ‘permitting lessees to keep cars and simply charging them for the extra time.’”[9] The Court noted that the rental contract provided that vehicles not returned by the due date would be reported as stolen to the proper authorities, that Prestige might repossess a vehicle if not returned by the contract due date, and that a $250.00 repossession fee would apply. Yang presented no evidence at the suppression hearing of any other custom or practice by Prestige that led him to believe that rather than adhering to the rental contract terms and reporting the vehicle as stolen, Prestige would, absent any request by him, simply extend the lease term and charge him the additional fees. Finally, the Court concluded that Prestige’s private attempts to repossess the Yukon by activating the GPS and disabling the vehicle placed Yang, the sole authorized driver, on notice that Prestige did not intend to extend the lease term, but rather sought to repossess the vehicle.

The Ninth Circuit Court of Appeals thus concluded that Yang lacked Fourth Amendment standing to challenge the warrantless search of the database because his reasonable expectation had not been infringed,[10] and accordingly affirmed the District Court’s decision denying Yang’s motion to suppress.

C. State’s interest in preventing defendant’s harassing communication with victim could be served through narrower means than allowing warrantless searches of defendant’s communication devices.

People v. Prowell, 2020 Cal. App. LEXIS 398 (3rd Dist. May 12, 2020)

Facts: Defendant Benjamin Sadiki Prowell grew upset after a coworker, Allison V., ended their six-month dating relationship in February 2016. Defendant began calling Allison, sending her text messages, and messages through social media almost daily. Initially polite to defuse the situation, Allison stopped responding to defendant’s emails and answering his calls by the end of March 2016. Defendant emailed her almost 100 times, at her work and home email addresses, and sent her social media messages in the middle of the night. Responding by the same channels and by texts, Allison told defendant that his behavior was inappropriate, asked him to stop, and told him he was harassing her. Allison later blocked defendant from some social media and blocked his number from her cell phone. However, defendant used another social media channel to contact her, after which she blocked defendant there also. In some of his emails, defendant referenced Allison’s child and her sister. He also made a vague threat referencing his Navy friends that knew what Allison looked like and mentioned “the Navy frowns upon cheaters.” Defendant told Allison he had access to all of her account and computer information. In July 2016, Allison sent defendant an email telling him to leave her and her family alone, that his behavior was unacceptable, that he was harassing her, and that she was afraid.

Emails from defendant also indicated he was using the Internet to obtain current information on Allison and her new boyfriend, including pictures. Defendant told her he knew her secrets, commented about a photograph on Facebook of her and her son, and communicated with the new boyfriend, and a friend of Allison’s, through social media, text messages, and emails. In the communication with Allison’s new boyfriend, defendant suggested that Allison was promiscuous and detailed what he said were her sexual preferences.

In October 2016, Allison contacted law enforcement. Detective Joshua Helton of the Davis Police Department called defendant, identified himself as law enforcement, and discussed defendant’s contacts with Allison. Helton told defendant that Allison was feeling threatened by the contact and, in his opinion, defendant’s conduct was criminal. Even after this conversation with Helton, defendant continued to contact Allison via email and social media. He sent her a message asking her not to call law enforcement again and claimed he would not contact her again. In the next two months, defendant sent Allison 25 more emails, and sent an Instagram message to Allison’s new boyfriend, under the account name “TheStalker0000.” Defendant also sent Helton several emails.

In January 2017, Detective Helton told defendant he was going to forward the case to the District Attorney, and if defendant continued to contact Allison, Helton might have to take additional action. Over the following weeks, defendant sent Allison many more emails. Helton sought a warrant and arrested defendant.

Law enforcement officers examined defendant’s phone and found text messages with his former boss where defendant admitted he had been sending Allison emails for months and that she called it harassment. He discussed attempting to break up the relationship between Allison and her friend, damaging Allison’s professional reputation, and disrupting her family member’s business. He also admitted sending Allison’s new boyfriend a message and using Facebook to find that boyfriend’s information.

A jury found defendant not guilty of stalking but guilty of the misdemeanor offense of annoying or harassing communication misdemeanor conviction for making harassing electronic communications under Penal Code section 653m(b). The trial court also found the repeated contact, including after the police told defendant to stop, would instill fear, and thus constituted domestic violence. The trial court placed defendant on three years’ probation with conditions prohibiting him from using or accessing social media websites and allowing warrantless searches of his “communication devices.” Defendant appealed, arguing the probation conditions were overbroad.

Held: The California Third District Court of Appeal explained that a probation condition is unconstitutionally overbroad if it “(1) ‘impinge[s] on constitutional rights,’ and (2) is not ‘tailored carefully and reasonably related to the compelling state interest in reformation and rehabilitation.’ [Citations.]” (In re E.O. (6th Dist. 2010) 188 Cal.App.4th 1149, 1153.)

The Court concluded that a complete prohibition on the probationer defendant’s access to social networking websites during the term of probation was a close fit between the legitimate purpose of the restriction – i.e., the probationer’s reformation and rehabilitation – and the burden that such a condition would impose on defendant for the duration of the probationary term. The Court noted that defendant used social media to perpetrate the crime for which he was placed on probation, gathered information on the victim and her family through social media, had inappropriate contacts with the victim’s friends through social media, and continued to use social media to discuss the case even after conviction.[11] Thus, imposition of a complete prohibition of the use or access of social networking sites was sufficiently tailored to the state’s legitimate interest in defendant’s reformation and rehabilitation.

Turning to the condition pertaining to defendant’s “communication devices,” the Third District observed that the United States Supreme Court in Riley v. California (2014) 573 U.S. 373, 396–397 made clear that a probation condition that authorized the warrantless search of an electronic storage device, such as a cell phone, carried the potential for a significant intrusion into defendant’s private affairs. The Court explained that a search of defendant’s mobile electronic devices could potentially expose a large volume of documents or data, much of which may have nothing to do with illegal activity, including potential medical records, financial records, personal diaries, and intimate correspondence with family and friends. (See People v. Appleton (6th Dist. 2016) 245 Cal.App.4th 717, 725.) The mobile application software could also include information about defendant’s political and religious affiliations, health concerns, hobbies, and social life. (Riley, at p. 396.)

The Court thus agreed with the defendant in finding that the electronic search condition impinged on defendant’s Fourth Amendment rights because it could potentially expose a large volume of data that had nothing to do with illegal activity; the communication device search condition was not sufficiently tailored to its purpose. The Court explained that state interests in preventing communication with the victim and fostering rehabilitation could be served through narrower means. The Court determined that the communication device search condition must be modified to limit authorization of searches to devices, accounts, and applications that were reasonably likely to reveal whether defendant had engaged in prohibited communication with the victim or the use of social media, or otherwise violated the terms of his probation.

The Third District accordingly struck the communication device search condition and remanded to the trial court to consider whether this condition could be narrowed in a manner that would allow it to “pass constitutional muster.” The Third District otherwise affirmed the judgment.

D. Administrative warrants impermissible to search premises if primary motivation is search for evidence in criminal investigation.

United States v. Grey, 2020 U.S. App. LEXIS 16788 (9th Cir. May 27, 2020)

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, based upon his conversation with Grey and his observations of the property, believed 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.

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.

Los Angeles County Sheriff’s Department 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.^[12] 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.

Held: In their decision affirming the lower court, the Court of Appeals for the Ninth Circuit 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.

For a more detailed discussion of this case, please see Client Alert Vol. 35, No. 21, available at www.jones-mayer.com.

E. Officer statements summarizing suspect descriptions as similar or possibly matching in affidavit were not intentionally made false statements to obtain warrant.

People v. Miles, 2020 Cal. LEXIS 3443 (May 28, 2020)

Facts: In February 1992, Nancy Willem was found dead at her workplace at the Behavioral Health Services Clinic in Rialto. The door to the clinic was ajar and the reception area ransacked. Willem was found naked with a telephone cord tied to her wrist, with a handwritten note on top of her abdomen that read: “Feed the poor. Down with the goverenment [sic].” After securing the area and obtaining consent to search the clinic, the police collected blood and other bodily fluids from the reception area and office where Willem’s body was found. Willem was later determined to have been raped. The doctor who performed the autopsy concluded that that Willem was killed by a combination of blunt force injuries and manual strangulation. On the night of Willem’s death, her ATM card was used to withdraw $1,160 from an ATM in Pomona and another $300 from an ATM in Glendora.

A couple of months after Willem’s death, the police briefly stopped an individual who identified himself as Johnny Duane Miles (“Miles” or “defendant”) and was walking no more than half of a mile from Willem’s office. During the stop, the police documented that defendant was an African-American man who was 25 years old, six feet, six inches tall, and 210 pounds.

In June 1992, the police received a report that a “black male wearing a white T-shirt armed with a small handgun” had just committed a robbery and rape at a nearby office building in Torrance. Within minutes of the report, and in the general vicinity from which the suspect could have attempted to flee, two officers spotted defendant in his truck, appearing very nervous and matching the suspect’s general description. The officers unsuccessfully attempted to stop defendant, a chase ensued, and the officers shot and arrested him.

Once Detective Chester Lore learned about the arrest, he sought a warrant to search defendant, his residences, and his vehicle. Pursuant to the search warrant, the police collected, among other items, a sample of defendant’s blood and a note from his truck. That note read in part: “We’ll be wiped out by the governement [sic].” The note contained a misspelling of the word government, which was similar to the misspelling in the note found on Willem’s body.

The defendant moved to suppress this evidence before trial, but the trial court denied his motion. A San Bernardino County jury convicted defendant of burglary and first degree murder, first degree forcible rape, second degree robbery, and false imprisonment by violence of Nancy Willem. The jury found true the special circumstances that Willem was killed during the commission of the burglary, rape, and robbery and that the murder was intentional and involved the infliction of torture. The jury also convicted defendant of 10 additional counts related to two separate incidents and found true the enhancement allegations relating to those counts. Following the penalty phase, the jury reached a verdict of death. After denying defendant’s motion to modify the verdicts, the trial court sentenced defendant to death. An automatic appeal followed.

Held: The Supreme Court of California explained that “a defendant has a limited right to challenge the veracity of statements contained in an affidavit of probable cause made in support of the issuance of a search warrant. The trial court must conduct an evidentiary hearing only if a defendant makes a substantial showing that (1) the affidavit contains statements that are deliberately false or were made in reckless disregard of the truth, and (2) the affidavit’s remaining contents, after the false statements are excised, are insufficient to support a finding of probable cause. … [T]he defendant must make his showing by a preponderance of the evidence, and the affidavit is presumed valid.” (People v. Scott (2011) 52 Cal.4th 452, 484.)

On appeal, defendant contended that the trial court erred because the affidavit contained misrepresentations and omissions regarding, among other things, the suspect descriptions. Before trial, Detective Lore testified regarding his affidavit, the search warrant, and the searches conducted pursuant to the warrant. Regarding the suspect descriptions, the Supreme Court observed that the trial court “[did] not find this information to be misleading or false, and [did] not find that defendant ha[d] met his initial burden of showing a knowing or intentionally false statement, or reckless disregard for the truth.”

The Supreme Court observed that Detective Lore’s affidavit described Willem’s death in Rialto and its apparent connection to a series of similar rapes and robberies committed throughout San Bernardino and Riverside Counties. The affidavit catalogued the similarities among the series of rapes and robberies, including that the crimes occurred on weekday evenings at professional offices, that several of the victims were bound with telephone cords, and that the suspect was described as a tall, Black man who was armed. The affidavit stated that “[t]he robberies also included a male Black that matched the physical description of the one that was described in two of the rape incidents.”[13] The affidavit also described the consistencies between these incidents and the rape and robbery for which defendant was arrested and described defendant as a tall, Black man with AB blood, which was consistent with the suspect descriptions and the forensic analysis.

Detective Lore testified that the suspect descriptions in his affidavit were based on the ATM photographs captured after Willem’s death, police reports, and victim interviews. From the ATM photos, Detective Lore estimated that the suspect was approximately six feet, five to six inches tall. The defense questioned Detective Lore’s characterization of the suspect descriptions amongst the incidents as similar or matching in his affidavit. However, when the prosecutor subsequently questioned Detective Lore, he confirmed that by the word “matched,” he did not mean to suggest that each victim’s suspect description exactly mirrored defendant’s height and weight. Rather, he meant that “[t]he descriptions given by the different witnesses and victims in this case, [were] within a couple of pounds or a couple of inches. And when I say a couple of pounds, 10, 20, 30.” He also confirmed that he included defendant’s height and weight in the affidavit to make the magistrate aware that discrepancies existed.

The Supreme Court found that substantial evidence supported the trial court’s finding regarding the suspect descriptions. The affidavit plainly stated the range of the suspect’s height as described by the victims, and in the immediately following sentence, set forth defendant’s actual height and weight. The affidavit therefore made clear the discrepancies between the suspect descriptions and defendant’s characteristics, as Detective Lore testified he intended to do. Considering this, the Court explained that the fact that he elsewhere in his affidavit summarized the suspect descriptions as similar or matching did not show that the detective made a false statement, much less made a false statement with an intent to deceive or a reckless disregard for the truth.

The Supreme Court similarly found that Detective Lore’s opinion that, based on his experience as a policeman, “Mr. Miles displays the physical characteristics as described by the majority of the victims in these cases” did not amount to an intentional or reckless falsehood, particularly since he testified that his experience as a policeman indeed taught him that victims were not always accurate in describing suspects. Nor did the Court find an intentional or reckless omission of material information regarding the suspect descriptions that, when added to the affidavit, rendered the affidavit insufficient to establish probable cause.

Thus, the Supreme Court found that the trial court did not err. Because the Supreme Court also found against defendant on the other issues he argued on appeal, the Supreme Court affirmed the judgment.

PUBLIC RECORDS

A. Trial court’s imposition of condition requiring intervening parties to strike their requests to recover statutory attorney fees pursuant to Code Civ. Proc. section 1021.5 was unreasonable and amounted to abuse of discretion.

Carlsbad Police Officers Ass’n v. City of Carlsbad, 2020 Cal. App. LEXIS 422 (4th Dist. May 18, 2020)

Facts: In 2018, the Legislature passed Senate Bill No. 1421[14] to expand public access to police records concerning the use of deadly or serious force and significant misconduct. The new law took effect on January 1, 2019. (Cal. Const., art. IV section 8(c); Government Code section 9600 (a).) Eight police officer associations (“POAs”) filed a petition for writ of mandate seeking to prevent their respective police agencies from disclosing pre-2019 records[15] of police misconduct or use of force pursuant to Senate Bill No. 1421, arguing that to do so would amount to impermissible “retroactive” application of the law. The petition named as respondents the cities of Carlsbad, Coronado, El Cajon, San Diego, National City, and Oceanside; the San Diego Unified Port District; the San Diego Unified School District; and the corresponding police chiefs (collectively, the “agencies”).

Section 387 of the Code of Civil Procedure permits a nonparty to intervene in a pending case, either as of right or permissively, when certain criteria are met. “An intervention takes place when a nonparty, deemed an intervenor, becomes a party to an action or proceeding between other persons…” (Section 387(b).) To encourage the pursuit of public interest litigation, Code of Civil Procedure section 1021.5 authorizes an award of attorney’s fees to the prevailing party.

The POAs requested a temporary stay barring disclosure of pre-2019 records. The agencies did not oppose their request. The trial court issued an alternative writ, set a March 1 hearing date, and entered a temporary stay.

Several media organizations and a civil rights group (collectively, “interveners”) moved to intervene. The trial court proceeded to allow intervention, but conditioned intervention on the interveners striking their request for attorney’s fees. The interveners filed their complaints in intervention, striking their requests for attorney’s fees. The trial court later agreed with the interveners on the merits that Senate Bill No. 1421 required disclosure of pre-2019 police records.[16] After the trial court issued a partial judgment denying the POAs’ petition for writ of mandate, the interveners appealed, challenging the attorney’s fees condition placed on their intervention.

Held: The California Fourth District Court of Appeal noted that Section 1021.5 codifies the judicially-created private attorney general doctrine. (Conservatorship of Whitley (2010) 50 Cal.4th 1206, 1217–1218.) The Fourth District explained that, upon motion, a court may award attorney’s fees to a successful party against one or more opposing parties in any action which has resulted in the enforcement of an important right affecting the public interest if the action: (1) enforced an important public right, (2) conferred a significant public benefit, and (3) is of a type that private enforcement was necessary, and the financial burden justifies subsidizing the successful party’s attorneys. (Whitley, at p. 1214.) The Court added that the third factor does not apply where, as here, a plaintiff’s action produces no monetary recovery.

The Court observed that although Section 1021.5 is phrased in permissive terms, a court’s discretion to deny attorney’s fees to a party that meets the statutory requirements of the statute is limited. (Lyons v. Chinese Hosp. Assn. (1st Dist. 2006) 136 Cal.App.4th 1331, 1344.) Unless special circumstances would render an award of 1021.5 fees unjust, fees must be awarded under the statute where the statutory criteria have been met. (Ibid.)

The Fourth District explained that Pasadena Police Officers Association v. City of Pasadena (2nd Dist. 2018) 22 Cal.App.5th 147, 159 (“Pasadena Police”) and City of Los Angeles v. Metropolitan Water District of Southern California (2nd Dist. 2019) 42 Cal.App.5th 290 (“Metropolitan Water”) had established that attorney’s fees were available under Section 1021.5 to a successful intervener seeking records disclosure in a reverse-PRA case. Like the courts in those cases, the Fourth District here found important public rights were implicated by the action. The Court explained that here there was no dispute that the release of police records concerning officer misconduct and use of serious force implicated a matter of public interest.

The Court maintained that the question before the Court was not whether the trial court abused its discretion in denying a request for attorney’s fees under Section 1021.5, as the POAs had contended, but whether the interveners could be barred from seeking attorney’s fees under Section 1021.5 as a condition of their intervention, as the trial court had done.

The Court explained that if leave to intervene is granted, “[t]he intervener becomes a party to the action with all of the same procedural rights and remedies of the original parties.”[17] Critically, the Fourth District explained, those procedural rights and remedies include the right to seek attorney’s fees under Section 1021.5 on equal terms with the original parties. (City of Santa Monica v. Stewart (2nd Dist. 2005) 126 Cal.App.4th 43, 87; People v. Investco Management & Development LLC (1st Dist. 2018) 22 Cal.App.5th 443, 458.)

The interveners had filed a series of records requests with the eight agencies, seeking pre-2019 police records pursuant to Senate Bill No. 1421. Through their mandamus petition, the POAs sought to prevent the agencies from releasing pre-2019 records pursuant to a PRA request. The Fourth District explained that “[a] successful reverse-CPRA lawsuit seeking to prevent a public agency from releasing information on the ground the requested disclosure is prohibited by law will necessarily affect the rights of the party requesting the information—a party whose interest in access to public records is recognized by California Constitution, article I, section 3, subdivision (b)(1), as well as the CPRA, and protected by specific provisions of the CPRA authorizing litigation to compel disclosure.” (Marken, supra, 202 Cal.App.4th at pp. 1269–1270.)

The Fourth District determined first that the interveners had direct interests in the subject matter of the litigation and therefore qualified for intervention of right, one of the two forms of intervention recognized by Section 387.

The Fourth District next explained that a trial court may place reasonable conditions on a nonparty’s intervention under Section 387, consistent with its inherent authority to ensure efficient case management. However, the Court found that conditioning intervention of right on forgoing otherwise appropriate requests for statutory attorney’s fees was unreasonable and amounted to an abuse of discretion by the trial court. The Fourth District noted that Section 1021.5 permits an award of attorney’s fees for litigation undertaken to serve an important public interest, as intervention here did. (Pasadena Police, supra, 22 Cal.App.5th at pp. 165–166; Metropolitan Water, supra, 42 Cal.App.5th at p. 303.) Once leave is granted, interveners stand on equal footing with the original parties, including their ability to request attorney’s fees pursuant to Section 1021.5. (Stewart, supra, 126 Cal.App.4th at p. 87.) As mentioned earlier, a court’s discretion to deny attorney fees under Section 1021.5 to a party that meets the statutory requirements is limited: fees must be awarded unless special circumstances would render an award unjust. The Fourth District Court of Appeal accordingly reversed the order and remanded for further proceedings to permit the interveners to seek reasonable attorney’s fees against the POAs pursuant to Section 1021.5.

B. A City’s efforts to redact electronic data prior to delivering responsive records in response to a Public Records Act request is not compensable.

Nat’l Lawyers Guild, S.F. Bay Area Chapter v. City of Hayward, 2020 Cal. LEXIS 3441 (May 28, 2020)

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.

Held: The California Supreme 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.

For a more detailed discussion of this case, please see Client Alert Vol. 35, No. 19, available at www.jones-mayer.com.

 EMPLOYMENT

Equitable tolling doctrine did not apply because initial six-month presentation deadline under Government Claims Act was not a statute of limitations.

Willis v. City of Carlsbad, 2020 Cal. App. LEXIS 396 (4th Dist. Apr. 22, 2020)

Facts: James Willis, a peace officer since 2000, was hired by the City of Carlsbad (“City”) in 2008 as an officer with the Carlsbad Police Department (“Department”). In 2009 and 2010, he received exceptional performance ratings from his supervisors. In 2011, Willis applied for and was selected to be a detective in the Department’s crimes of violence unit. He again received exceptional performance evaluations.

In June 2012, Willis created a fictitious email account under a pseudonym and wrote a critical e-mail about another detective who worked in his unit, sending it to various government entities, public information officers, and news organizations. Willis admitted to writing the email several months later during an investigation about the email, and was reassigned to patrol in January 2013.

In April 2013, Willis received an exceptional performance rating for his work in 2012. However, he was also investigated and interviewed about the other officer’s possible misconduct referenced in his email. He received a written reprimand stating he had violated Department policy by failing to promptly bring his allegations to a Department manager or supervisor. Willis appealed the decision.

Willis applied two times in 2013 for open detective positions in the crimes of violence unit but was passed over in favor of other candidates. In March 2014, Willis was promoted to corporal. That same month, he missed receiving an overall exceptional performance review by one criterion. Willis received exceptional overall performance ratings on his next few evaluations.

In early 2015 at a meeting between the Department and the local police officer’s association,[18] Willis complained about a Department performance review program that he believed was an unlawful quota system. The management disagreed that the program was illegal.

In July 2015, Willis’s supervisors passed him over for a promotion to sergeant. In December 2015, Willis brought a complaint with the Department of Fair Employment and Housing as well as a government tort claim against the City, alleging he had suffered continued retaliation by the City and the Department. City deemed all acts occurring before June 29, 2015—six months before the date it received Willis’s claim—untimely as occurring beyond the six-month period in which to present a claim under the Government Claims Act (Government Code section 911.2). City denied Willis’s claim with regard to the July 2015 denial of promotion to sergeant.

In February 2016, Willis filed a complaint against the City, alleging in part that it engaged in whistleblower retaliation against him in violation of Labor Code section 1102.5(b) by denying him promotions after he reported the other officer’s purported misconduct and complained about the Department program he believed was an unlawful quota system. Pointing out he alleged he had a pending administrative complaint to the Labor Commissioner for the City’s January 2013 retaliation, Willis argued the six-month period for filing a government claim had been equitably tolled.

Before trial, the City successfully moved to strike allegations of other alleged retaliatory acts within Willis’s cause of action on grounds that he had not timely presented a government tort claim within six months of the acts as required by the Government Claims Act.

Thereafter, the trial court in limine excluded evidence of any violations by the City of the Public Safety Officers Procedural Bill of Rights Act (“POBRA”, or the “Act”; Government Code section 3300 et seq.), while at the same time permitting the City to present evidence Department had denied Willis promotion because of his June 2012 email.

The jury returned a special verdict finding in favor of Willis that his reporting of the City’s violation of law was a contributing factor in the City’s decision to deny him promotion. However, the jury also found the City would have denied Willis his promotion in July 2015 anyway for legitimate independent reasons. The trial court therefore entered judgment in the City’s favor on the whistleblower retaliation claim. Willis appealed.

Held: On appeal, Willis argued, among other things, that that the trial court erred as a matter of law by striking portions of his Labor Code section 1102.5 cause of action because the Government Claims Act’s six-month statute of limitations was equitably tolled by his June 2013 retaliation complaint to the Labor Commissioner. This made, Willis argued, his December 2015 government tort claim timely as to the City’s actions.

The California Fourth District Court of Appeal explained that the equitable tolling of statutes of limitations is designed to prevent unjust and technical forfeitures of the right to a trial on the merits when the purpose of the statute of limitations—timely notice to the defendant of the plaintiff’s claims—has been satisfied. Where applicable, the doctrine will suspend or extend a statute of limitations as necessary to ensure fundamental practicality and fairness. (McDonald v. Antelope Valley Community College Dist. (2008) 45 Cal.4th 88, 99.)

The Fourth District explained that the California Supreme Court in Shirk v. Vista Unified School Dist. (2007) 42 Cal.4th 201 emphasized that—contrary to the deadline for filing a lawsuit after a Government Claims Act claim is acted upon or deemed denied—the initial claim presentation deadline is not a statute of limitations.

Here, the Fourth District thus determined that, contrary to Willis’s framing otherwise, the six-month period of Section 911.2 was not a statute of limitations to which tolling rules might apply. The Court explained that application of tolling to the claims presentation deadline would undercut the public policies and purposes that require that deadline be “strict[ly]” applied. (DiCampli-Mintz v. County of Santa Clara (2012) 55 Cal.4th 983, 991, fn. 8.) The Court added that the important policy considerations behind the claims statutes (giving a public entity prompt notice of a claim to permit early investigation and evaluation, as well as orderly fiscal planning for the protection of taxpayer funds) would not be served by tolling the government claim deadline while a plaintiff pursued other legal remedies against the government defendant.

The Fourth District thus concluded that the trial court did not err, and accordingly affirmed the judgment. 

MISCELLANEOUS

Appellant’s conviction under Penal Code section 69 based on threatening speech was unconstitutional because his speech was not a ‘true threat.’

People v. Smolkin, 2020 Cal. App. LEXIS 432 (1st Dist. May 20, 2020)

Facts: In August or September of 2016, Deputy District Attorney Andrew Horvath of the Solano County District Attorney’s Office prosecuted Anatoly Smolkin for parole violations. One of the violations involved an incident during which Smolkin threatened to blow up a parole office building. Smolkin was found in violation of his parole and sentenced to 180 days in county jail.

Angry at the District Attorney’s Office for its handling of his parole violation case, Smolkin sent a two-page letter received by that office in February 2017 that stated, among other things, that Horvath had been “sentenced to death in Moscow for the crime of kidnapping a soldier of the armed forces of Russia.” The letter continued, “I warn you, if charges are not dropped, all perjured restraining orders lifted, my parole cancelled, I will charge, but effectively sentence, the entire Solano County DA’s office with kidnapping punishable by death by Russian military firing squad. Let me be crystal clear—I have no training in riflery or authorization to carry out an execution….” The letter also stated in small text in a margin, “It is clear to any rational person that I pose no threat to anybody.”

Horvath later testified that the letter made him afraid of Smolkin. Horvath said he did not literally believe he had been sentenced to death by a Russian military firing squad, but indicated that he feared for his safety from Smolkin himself. Horvath stated that as a result of the letter, he had installed a security system in his home, warned his wife to be vigilant, and told his children not to talk to strangers.

In July 2018, the Solano County District Attorney filed an information charging Smolkin with threatening a state official (Penal Code section 76(a)) and resisting an executive officer (Penal Code section 69). The information also alleged a prior strike and a prior prison term. In August 2018, a jury acquitted Smolkin of threatening a state official and convicted him of resisting an executive officer. Finding the enhancement allegations true, the trial court sentenced Smolkin to a total of seven years in state prison. Smolkin appealed.

Held: Penal Code section 69 provides in part: “Every person who attempts, by means of any threat or violence, to deter or prevent an executive officer from performing any duty imposed upon the officer by law…is punishable by a fine […], or by imprisonment pursuant to subdivision (h) of Section 1170, or in a county jail […], or by both such fine and imprisonment.” Smolkin argued on appeal that his conviction under Section 69 was unconstitutional.

The California First District Court of Appeal explained that certain well-defined and narrowly limited classes of speech are not within the First Amendment’s free speech protections, including what the United States Supreme Court had described as “true threats.” (People v. Lowery (2011) 52 Cal.4th 419, 423.) In Watts v. United States (1969) 394 U.S. 705, the United States Supreme Court made clear that the Constitution mandates that statutes punishing the making of threats must be applied only to true threats. (Watts, at p. 708; see also In re M.S. (1995) 10 Cal.4th 698, 712.) In People v. Superior Court (Anderson) (1st Dist. 1984) 151 Cal.App.3d 893, the First District had previously acknowledged that the holding in Watts applied to Section 69. (Anderson, at p. 896.) Thus, a conviction under Section 69 based on threatening speech, the First District here explained, was unconstitutional if the speech was not a “true threat.”

The Court explained that “‘[t]rue threats’ encompass those statements where the speaker means to communicate a serious expression of an intent to commit an act of unlawful violence to a particular individual or group of individuals.” (Virginia v. Black (2003) 538 U.S. 343, 359; accord, Lowery, supra, 52 Cal.4th at p. 427.) In Lowery, the California Supreme Court followed Virginia v. Black in construing a statute relating to threats of violence against a crime witness or victim “as applying only to those threatening statements that a reasonable listener would understand, in light of the context and surrounding circumstances, to constitute a true threat, namely, ‘a serious expression of an intent to commit an act of unlawful violence’ [citation], rather than an expression of jest or frustration.” (Lowery, at p. 427; accord, People v. Chandler (2014) 60 Cal.4th 508, 522.)

The First District concluded that, as a matter of law, a “reasonable listener” would not have understood Smolkin’s February 2017 letter to be a true threat because of the combination of three factors: first, Smolkin’s threats were “patently delusional”; second, he threatened violence by third parties (i.e. Russian military authorities) who were not (except in his delusion) his associates; and third, Smolkin’s letter included repeated assurances that he was not threatening to personally commit violence.

As to the third factor, the Court explained that the disclaimers would have signaled to a reasonable listener that Smolkin was not making a serious threat of violence, especially in light of the delusional nature of the threatened violence and the lack of any threatened conduct by actual associates of Smolkin. Those circumstances left Smolkin as the only possible violent actor, and the letter repeatedly disclaimed any such intent.

The Court noted that it did not conclude that a delusional threat could never constitute a true threat, but it observed that the People failed to identify any case approving the criminal prosecution of a person for a patently delusional threat. The cases cited by the parties involved implied threats, hyperbolic threats, improbable threats, vague threats, or metaphorical threats—not delusional threats. Nor had the People pointed to any evidence that Smolkin had committed violent acts in the past.

The First District Court of Appeal thus concluded that criminally sanctioning Smolkin on the basis of the February 2017 letter was unconstitutional as a matter of law, and accordingly reversed the trial court’s judgment.

[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.”

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

[5] People v. Benson, 802 P.2d 330, 345 (Cal. 1990).

[6] People v. Benson, 802 P.2d at 344.

[7] Id. at 345.

[8] See United States v. Dorais, 241 F.3d 1124, 1129 (9th Cir. 2001).

[9] See United States v. Dorais, 241 F.3d 1124, 1128 (9th Cir. 2001) (citing United States v. Henderson, 241 F.3d 638, 647 (9th Cir. 2000)).

[10] See United States v. Taketa, 923 F.2d 665, 669-70 (9th Cir. 1991).

[11] After the jury’s verdict, defendant posted a picture on social media of a fictional movie character eating flesh and said, “I hope [Allison] chokes on whatever pound of flesh she may have received from having pursued this matter.”

[12] 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.

[13] Here, the affidavit is not referring to Willem’s rape incident, but to two others not described here.

[14] Stats. 2018, ch. 988 section 2.

[15] In a “reverse-PRA” action, such as the POAs’ petition for writ here, an interested third party seeks a judicial ruling precluding a public agency from disclosing allegedly confidential documents pursuant to the California Public Records Act (Government Code section 6250 et seq.) (“PRA” or “CPRA”). (See Marken v. Santa Monica-Malibu Unified School Dist., 202 Cal.App.4th 1250, 1267 (2nd Dist. 2012).)

[16] An appellate court later reached the same conclusion in a different case, Walnut Creek Police Officers’ Association v. City of Walnut Creek, 33 Cal.App.5th 940, 941–942 (1st Dist. 2019).

[17] Catello v. I.T.T. General Controls (3rd Dist. 1984) 152 Cal.App.3d 1009, 1013–1014. See also Savaglio v. Wal-Mart Stores, Inc. (1st Dist. 2007) 149 Cal.App.4th 588, 602–603; 4 Witkin, Cal. Proc. (5th Ed. 2008) Pleading, section 226.

[18] Willis had been elected president of the association by the time of the meeting.

A. Juvenile correctional officer improperly granted summary judgment on a juvenile detainee’s 42 U.S.C. section 1983 Fourteenth Amendment claims because a jury could find that officer’s alleged actions violated the detainee’s right to privacy when he allegedly watched her shower multiple times, violated her right to bodily integrity, and violated the detainee’s right to be free from punishment. Nor was officer entitled to qualified immunity.

Vazquez v. Cnty. of Kern, 2020 U.S. App. LEXIS 3188 (9th Cir. Jan. 31, 2020)

Facts: Samantha Vazquez was arrested on an outstanding warrant and taken to Kern County Juvenile Hall in January 2015. She was housed in an all-female unit where Juvenile Corrections Officer George Anderson worked. Juvenile hall staff frequently placed wards on work “details,” including laundry, kitchen, and clean-up.

According to Vazquez, Anderson purposefully selected her to work details with him. During her deposition, Vazquez testified that Anderson said inappropriate things to her such as calling her “babe” and telling her she had a “big butt.” She testified that Anderson “grabbed [her] face,” “touched [her] shoulders,” and talked with her about her shower gown. Vazquez described one specific incident where she Anderson told her about a “rated R” dream he had about her. She testified that he told her to shut the door and Anderson said that, in the dream, she “grabbed him by his t-shirt,” “gave him a kiss” and “after that [they] ended up going to a room and, like, having fun and stuff.” After that, she testified that he told her “to get close to him, like, to the point where he had opened his knees and [she] was right in the middle of him, and [he] told [her] that he wanted his dream to come true.” Vazquez testified that she moved away from him after and felt “really, really awkward.”

Vazquez also alleged that Anderson would tell her which shower stalls to use and that he looked at her inappropriately while she was showering on three or four occasions. She testified that she caught him staring at her in the shower when he was standing at the staff counter and that she tried to cover herself up (the record reflected that a person sitting at the staff counter could look into at least one of the shower stalls through a gap in the shower curtains). She also testified that Anderson told her he had seen her in the shower, and that she should leave her boyfriend and “find someone better like him.”

Vazquez reported her allegations to a substance abuse specialist, who felt Vazquez was being truthful. The County of Kern (the “County”) began an investigation led by Shaun Romans. Romans interviewed fifty-five people and reviewed three interviews conducted by the Bakersfield Police Department. The investigation lasted eight months. Romans testified that he “leaned toward [the allegations] being true.” The allegations were sustained by the disciplinary review board at the probation department. The County then began the process of terminating Anderson’s employment.

Vazquez filed an action against Anderson and his supervisor, Heathe Appleton. She brought claims under 42 U.S.C. section 1983, alleging that Anderson’s conduct violated her constitutional rights. Vazquez argued that while she was in custody, Anderson made sexual comments to her, groomed her for sexual abuse, and looked at her inappropriately while she was showering. She also alleged a claim against Appleton for supervisory liability.

Anderson testified that that he was never told that he could not sit at the staff counter while female wards showered, and that he had sat there once or twice. He testified that he had selected Vazquez to work with him once or twice because she supplied him with useful gang intelligence and because she was a good worker. He said that “maybe once” he had been alone in a room with Vazquez for twenty minutes.

Several staff members testified that they observed Anderson alone with female wards, including Vazquez. Another staff member testified that she observed Anderson sitting at the staff counter while female wards showered. The Director of Kern County Juvenile Hall testified that at the time of Vazquez’s allegations, Kern County had policies in place at the juvenile hall to prevent or deter sexual abuse of wards. She further testified that certain standards in place at the time implemented the Prison Rape Elimination Act (“PREA”).[1]

The Director also testified that Section 1425 of the Juvenile Hall Basic Staff Rules, which were in effect at the time of the allegations, stated: “Staff members are not permitted alone in the rooms with minors of the opposite gender except during an emergency. For security purposes, staff should avoid being alone with any minor in their room.” She testified that the Juvenile Hall Administrative Manual required supervision of the showers to be provided by staff of the same gender as the youth and that “except in exigent circumstances or incidental to a routine youth safety check the youth will be permitted to shower, perform bodily functions, and change clothing without nonmedical staff of the opposite gender viewing their breasts, buttocks, or genitalia.”

The District Court ultimately granted Anderson’s and Appleton’s motions for summary judgment. The District Court concluded that even if Vazquez’s sexual abuse allegations were true, Anderson’s alleged conduct did not violate her constitutional rights; that Anderson’s alleged conduct was not sufficiently frequent to violate Vazquez’s right to privacy; and that even assuming Anderson’s conduct rose to the level of a constitutional violation, he was entitled to qualified immunity. Vazquez appealed.

Held: The Ninth Circuit Court of Appeals explained that the right to bodily privacy under the Fourteenth Amendment was established in the circuit in 1963, and extended this right to prison inmates in 1985. [2] The Circuit had also established that a pretrial detainee has “at least the same right to bodily privacy as a prisoner,” Byrd v. Maricopa Cty. Bd. of Supervisors, 845 F.3d 919, 923 (9th Cir. 2017).

The Court observed that in Grummett v. Rushen, 779 F.2d 491 (9th Cir. 1985), a class action argued that a “policy and practice of allowing female correctional officers to view male inmates in states of partial or total nudity while dressing, showering, being stripped searched, or using toilet facilities violated [the inmates’] rights of privacy.” (Id. at 492.) The Ninth Circuit in that case had noted that female guards were not assigned to positions requiring unrestricted and frequent surveillance, female guards did not accompany male inmates to the showers, and females were assigned to the more distant position overlooking showers, where the surveillance was obscured. Grummett concluded that the inmates had not demonstrated that the restricted observations were “so degrading as to require intervention by this court.” (Id. at 494.) In Sepulveda v. Ramirez, 967 F.2d 1413 (9th Cir. 1992), the Ninth Circuit had affirmed a lower court’s order that an officer there was not entitled to summary judgment on the basis of qualified immunity, concluding that the plaintiff’s experience was “far more degrading” Id. at 1415-16 than the situation faced by the inmates in Grummett. The Sepulveda Court explained that, unlike in Grummett, the defendant’s view of the parolee was “neither obscured nor distant.” Id.

Here, Vazquez alleged that Anderson watched her shower multiple times and looked into her room once when her privacy sign was up, while Anderson argued that detention facility security and safety provided compelling state interest for his behavior. However, noting testimony from other staff and the director of the juvenile hall that Anderson’s actions were against institution policy, the Ninth Circuit found no such compelling state interest for the alleged actions. Moreover, viewing the evidence in the light most favorable to Vazquez, the Court found that Anderson’s view was not necessarily “obscured and from a distance.” Even if it was, the question of whether his observation was “infrequent and casual” remained in dispute. The Court noted there was evidence that Anderson directed Vazquez to use a certain shower stall so he could obtain the best view. The Court therefore held that a reasonable jury could conclude that Anderson violated Vazquez’s Fourteenth Amendment right to bodily privacy.

The Court also concluded that a reasonable jury could find that Anderson’s alleged conduct involving unwanted sexual contact or harassment violated Vazquez’s Fourteenth Amendment right to bodily integrity, which required the Court to “use the ‘shocks the conscience’ test.” Fontana v. Haskin, 262 F.3d 871, 882 n.7. (9th Cir. 2001) (citing Cty. of Sacramento v. Lewis, 523 U.S. 833, 846 (1998)). That test’s threshold question was “whether the behavior of the governmental officer is so egregious, so outrageous, that it may fairly be said to shock the contemporary conscience.” Sacramento, 523 U.S. at 848 n. 8. In Fontana, the Court had found that an officer who allegedly touched and made sexual comments to an arrested plaintiff in the back of a police vehicle abused his power and violated the plaintiff’s bodily integrity. Here, the Court found Vazquez’s assertions that Anderson touched her and made sexual comments to her sufficiently similar to those in Fontana. Moreover, the Court determined that the context of Vazquez’s allegations (she was a female ward at a juvenile hall, Anderson was older and larger than she was, wore a uniform, and had the power to discipline her if she refused to follow his instructions) demonstrated that she was at least as vulnerable as the Fontana plaintiff. Thus, a jury could find that Anderson’s alleged conduct “was egregious and outrageous and shocks the conscience as a matter of law.” Fontana, 262 F.3d at 882 n.7. The Court also concluded that a jury could find that Anderson violated Vazquez’s Fourteenth Amendment right to be free from punishment.

The Court next considered the District Court’s qualified immunity conclusion. “Qualified immunity attaches when an official’s conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.” Kisela v. Hughes, 138 S. Ct. 1148, 1152 (2018) (internal quotation marks and citation omitted). “A clearly established right is one that is sufficiently clear that every reasonable official would have understood that what he is doing violates that right.” Mullenix v. Luna, 136 S. Ct. 305, 308 (2015) (internal quotation marks and citation omitted).

Given that the Ninth Circuit had clearly recognized a Fourteenth Amendment right to bodily privacy, the Juvenile Hall administrative policies, and the PREA training Anderson likely attended, the Ninth Circuit concluded that Anderson was not entitled to qualified immunity for Vazquez’s Fourteenth Amendment bodily privacy claim.

The Court also concluded that Anderson was not entitled to qualified immunity for Vazquez’s bodily integrity or punishment claims. The Court observed that “[i]n the simplest and most absolute of terms the . . . right of prisoners to be free from sexual abuse [is] unquestionably clearly established [in the Ninth Circuit] . . . and no reasonable prison guard could possibly [believe] otherwise.” Schwenk v. Hartford, 204 F.3d 1187, 1197 (9th Cir. 2000). The Court explained that beyond the clearly established case law, training, and juvenile hall policies, it was obvious that a juvenile corrections officer should not sexually harass or abuse a juvenile ward as it is always wrong for a juvenile corrections officer to engage in such conduct. See Sharp v. Cty. of Orange, 871 F.3d 901, 912 (9th Cir. 2017).

Regarding Vazquez’s supervisory liability claim against Appleton, Anderson’s supervisor, the Court observed that “[a]lthough there is no pure respondeat superior liability under [Section] 1983, a supervisor is liable for the acts of his subordinates if the supervisor participated in or directed the violations, or knew of the violations [of subordinates] and failed to act to prevent them. Preschooler II v. Clark Cty. Sch. Bd. of Trustees, 479 F.3d 1175, 1182 (9th Cir. 2007) (internal quotation marks and citation omitted). The Court found that Appleton knew or reasonably should have known of Anderson’s violations and failed to act to prevent them. The Court noted that Appleton had observed Anderson alone with female wards on more than one occasion and failed to intervene; Anderson also testified that Appleton gave him permission to be alone in a cell with female wards during work details; and Appleton was aware of, and even brought up with a supervisor, a prior incident involving Anderson’s supervision of female wards’ showers approximately six months before Vazquez raised her allegations. The Court thus concluded that a jury could find that Appleton knew or reasonably should have known of Anderson’s violations and failed to act to prevent them.

Because the Ninth Circuit Court of Appeals concluded that the District Court erred when it granted Anderson’s and Appleton’s motions for summary judgment, the Ninth Circuit accordingly reversed and remanded.

B. Qualified immunity only extends to officers using deadly force with an objectively reasonable basis for believing their own safety or safety of others is at risk.

Orn v. City of Tacoma, 949 F.3d 1167 (9th Cir. 2020)

Facts: In October 2011, a Tacoma Police Department (“Department”) officer noticed Than Orn driving without his headlights on and attempted to pull Orn over. Orn did not pull over, but instead embarked on a roughly 15-minute journey home to his apartment complex. Orn drove between 25 and 35 miles per hour and stopped at traffic lights and stop signs. The officer pursued Orn, along with additional Department officers who joined the slow-speed pursuit. These included Officer Kristopher Clark and his partner Donald Rose who were driving in a Department sport utility vehicle. At different points during the pursuit, police units attempted unsuccessfully to box Orn, drove in front of Orn’s vehicle to block his path, and put down spike strips but Orn evaded these attempts (to avoid the spike strips, Orn swerved away from the officers and into the oncoming lane of traffic where no oncoming vehicles were traveling toward him at the time).

During the pursuit, officers accurately predicted that Orn might be going home to the apartment complex address to which his vehicle was registered. Clark knew that the complex had a long outdoor parking lot with only two entrances, one at the north end and the other at the south end. When Clark saw Orn head toward the south entrance with police vehicles pursuing, Clark entered the north entrance and positioned his SUV across a narrow point of the single access lane that ran the length of the parking lot, in an effort to prevent Orn from exiting the complex on the north end. Orn proceeded slowly down the access lane toward the north end of the complex. When he approached Clark’s SUV he came to a brief stop. According to Orn (and disputed by Clark), Clark was standing on the grassy area to the left of his SUV as Orn approached. Clark had his gun drawn with the barrel pointed toward the ground and repeatedly yelled at Orn to stop. Orn instead moved slowly away from Clark and attempted to maneuver his vehicle in a narrow opening between Clark’s SUV and a parked vehicle. Another officer, Steven Butts, positioned his vehicle to cut off any path for Orn to escape through the north entrance.

In response, Orn turned his vehicle more sharply to the right to avoid hitting Butts’s vehicle. Orn and officers on the scene later estimated Orn’s speed at five miles per hour. Orn clipped the rear passenger side panel of Clark’s SUV and also struck the right front corner of Officer Butts’s vehicle in the process. According to Orn (and disputed by Clark), just after his vehicle moved past Clark’s SUV, Orn saw Clark run toward his vehicle on the passenger side and shoot at Orn, striking him in the spine. Clark ran behind Orn’s vehicle as it sped away, firing seven more rounds through the rear windshield. Orn’s vehicle subsequently was stopped after he hit several parked cars and crashed into a chain-link fence. Officers took Orn into custody. Three of the ten rounds Clark fired struck Orn. Orn was left paralyzed from the waist down by the bullet that lodged in his spine.

Orn was acquitted of using his vehicle to assault Clark and also acquitted of attempting to elude a pursuing police vehicle. He was convicted of the lesser-included offense of failure to obey a law-enforcement officer, and was ordered to pay a fine of $250.

Orn sued Clark and the City of Tacoma under 42 U.S.C. section 1983, alleging a violation of his Fourth Amendment right to be free from the use of excessive force. Clark moved for summary judgment on the basis of qualified immunity. The District Court denied the motion, and Clark took an interlocutory appeal from that order.

Held: The Ninth Circuit Court of Appeals explained as an important initial matter that, in an interlocutory appeal challenging the denial of qualified immunity, the Court had to construe the facts in the light most favorable to the plaintiff.[3] The Court explained that because nothing in the record blatantly contradicted Orn’s account of the events, the Court must assume that a jury could find Orn’s account of what happened credible, even if it conflicted with Clark’s account. For the Court’s purposes here, therefore, all disputed factual issues were resolved in Orn’s favor.

The Court first held that, viewing the facts in the light most favorable to Orn, a reasonable jury could conclude that Officer Clark violated Orn’s Fourth Amendment right to be free from the use of excessive force. Thus, the Court determined that Clark did not have an objectively reasonable basis for believing that Orn posed a threat of serious physical harm, either to the officer himself or to others. The Court noted that construing the facts in Orn’s favor, he never targeted officers with his vehicle or forced other vehicles off the road. Moreover, he traveled at normal speeds and stopped at traffic lights and stop signs throughout the pursuit.

Turning to the second step of the qualified immunity analysis, the Court held that Orn’s right to be free from the use of excessive force was clearly established at the time of the shooting. The Court noted that in October 2011, at least seven circuits had held that an officer lacks an objectively reasonable basis for believing that his own safety is at risk when firing into the side or rear of a vehicle moving away from him. The Ninth Circuit also noted that in Adams v. Speers, 473 F.3d 989 (9th Cir. 2007), the Circuit itself had held that an officer violated the Fourth Amendment by firing through the front windshield of a vehicle moving backward away from him.

The Court stated that, taking the facts in the light most favorable to Orn, a reasonable jury could conclude both that Officer Clark was never in the path of Orn’s vehicle and that the officer fired through the passenger-side windows and rear windshield as the vehicle was moving away from him. The Court further held that under Orn’s version of events, he never engaged in any conduct that suggested his vehicle posed a threat of serious physical harm to another officer on the scene, or to anyone else in the vicinity.

The Court thus concluded that Clark was not entitled to qualified immunity. Accordingly, the Ninth Circuit Court of Appeals affirmed the District Court’s order denying Clark’s motion for summary judgment.

C. In a capital case, ample evidence supported a finding that defendant’s waiver of his Miranda rights was voluntary, knowing, and intelligent. Two police officers explained each Miranda right to defendant, after which he indicated that he understood.

People v. Frederickson, 8 Cal. 5th 963 (2020)

Facts: On June 13, 1996, 30-year-old Scott Wilson was working as a customer service manager at the HomeBase home improvement store in Santa Ana when Daniel Carl Frederickson walked in and shot Wilson once in the head, killing him. Santa Ana police officers arrived at the store within a few minutes of the shooting. Officer Ronald Dryva was on the scene for two to three hours interviewing witnesses. During that time, Frederickson called and spoke to an employee without identifying himself by name. The employee handed the phone to Dryva, but Frederickson believed he was still speaking with the employee. Dryva heard the caller admit he shot Wilson because he was frustrated and angry, and say that he would “probably” turn himself in that night. Frederickson did not do so, but officers located him at his residence the following day and arrested him. They found a .32-caliber revolver containing five live rounds and one empty round.

Santa Ana police investigators Phillip Lozano and Mark Steen interviewed Frederickson shortly after his arrest on June 14. Steen advised Frederickson of his Miranda rights. (Miranda v. Arizona (1966) 384 U.S. 436.) Following each advisement, Steen asked Frederickson if he understood. To each question, Frederickson replied, “Yes, sir,” acknowledging he understood his rights and agreed to speak with the officers. Steen then proceeded to question Frederickson about his involvement in the crime. Early in the questioning, Frederickson said, “Hey, when am I going to get a chance to call my lawyer. It’s getting late, and he’s probably going to go to bed pretty soon.” Steen replied, “Your lawyer? Well you can call your lawyer after we’re done in our facility.” Frederickson said, “Oh, okay. So what do we got to do in our facility here?” Steen explained, “Well, we’re conducting this interview.” When Frederickson asked if they could finish the interview the following day, Steen replied, “Um, we can continue talking tomorrow; however, we’re not going to continue the interview.” Steen then continued asking Frederickson about the murder.

Frederickson subsequently admitted he had been committing robberies for nearly 15 years and that he walked into the HomeBase with “a game plan,” he identified Wilson as the manager and followed him to the safe. Wilson ignored Frederickson’s instructions to “put that money in this box.” Frederickson said that “the next thing I knew, you know, [the gun] was at his temple.” He expected Wilson to hand over the money and was surprised and “pissed off” that Wilson refused. After firing the shot, he ran out of the store and into his van. Frederickson, crying as he spoke to the investigators, explained that he called the HomeBase store approximately one hour later and said to the manager “I told him, ‘You son of a [expletive]. That [expletive] didn’t need to die.’ … that [expletive] died protecting [the money].” Frederickson told the investigators, “…if I get caught, you know, I’ll go back in for about two or three years and, you know, … get out and try it again later.”

The next day Frederickson admitted to a newspaper reporter who interviewed Frederickson in jail that he was attempting to rob the store and shot Wilson during the attempt.

In July 1996, Frederickson sent Officer Lozano a letter asking to speak with the investigators again. 0n August 12, 1996, Lozano and Steen again interviewed Frederickson. Lozano advised Frederickson that he was represented by the public defender, who had invoked Frederickson’s right to remain silent. Lozano asked if Frederickson would like to waive his right to have an attorney present. Frederickson replied, “I waive that, and I have since fired him.” Lozano advised Frederickson of his Miranda rights, and Frederickson signed a waiver. Lozano then interviewed Frederickson, who explained that he had “held back some info” regarding accomplices. Frederickson discussed these accomplices, along with the gun used in the murder, the robbery, and the spent shell casing.

In June 1997, Frederickson filed a pretrial motion to suppress his statements from the June 14 interview. He also moved to dismiss the information on the grounds that his confession was obtained in violation of Miranda, and without the confession, there was insufficient evidence to hold him to answer on the murder charge. In September 1997, Frederickson filed a motion to suppress both the June 14 confession and his statements from the August 12 interview. He argued the August statements “still carried the taint” of the June 14 interview at which the investigators engaged in misconduct by failing to notify his counsel when he requested to speak with them. Frederickson further argued that his “known history of mental illness and current treatment with psycho[tropic] medications are factors to consider.”

At a hearing, the trial court denied the motions. The trial court found that Frederickson’s statements during the June 14 interview expressed a desire to speed up the interview so that he could call his attorney when the interview was over, but did not constitute a clear request for an attorney. The trial court found that because Frederickson initiated contact before the August interview and signed written waivers of the presence of counsel and of his Miranda rights, “defendant can hardly complain that his statements were coerced, involuntary, or in violation of his right to counsel.” The trial court further found that Frederickson presented no evidence of any mental defect that would preclude him from understanding and waiving his rights.

A jury convicted Frederickson of first degree murder. The jury found true the special circumstance allegation that Frederickson committed the murder while engaged in the commission of the attempted robbery, and it also found true that Frederickson personally used a firearm while committing the crime. After a sanity trial, the jury found Frederickson was sane at the time of the crimes. After a penalty trial, the jury returned a verdict of death, and the trial court imposed a judgment of death. An automatic appeal followed.

Held: On appeal, Frederickson asserted that the trial court erred in failing to suppress his statements from the June 14 interview because he did not validly waive his right to counsel. He further asserted the trial court erred in failing to suppress statements from the August 12 interview because there was no break in the causal chain from the erroneous first interrogation.

The California Supreme Court explained that the United States Supreme Court in Miranda set forth prophylactic measures to protect an individual’s right against self-incrimination from curtailment under the inherently compelling pressures of custodial interrogation. A suspect “must be warned prior to any questioning that he has the right to remain silent, that anything he says can be used against him in a court of law, that he has the right to the presence of an attorney, and that if he cannot afford an attorney one will be appointed for him prior to any questioning if he so desires.” (Miranda, supra, 384 U.S. 436, 479.) After a suspect has heard and understood these rights, he or she may waive them.[4] However, the prosecution bears the burden of showing that the waiver was knowing, voluntary, and intelligent under the totality of circumstances. (People v. Linton (2013) 56 Cal.4th 1146, 1171; see Maryland v. Shatzer (2010) 559 U.S. 98, 104.)

The Supreme Court noted that in its prior case People v. Whitson,[5] a police officer interviewed the defendant on three separate occasions. At the beginning of each interview, the officer advised the defendant of his rights under Miranda and asked whether he understood them. Each time, the defendant responded that he did. The officer then proceeded to question the defendant. The Court had concluded the defendant’s statements were voluntary, noting that the record was devoid of any suggestion that the police resorted to physical or psychological pressure to elicit them. The Court had also concluded the defendant was aware of the rights he was waiving and the consequences of his decision to do so, observing that there was no evidence that during any interview his judgment was clouded or otherwise impaired. The Court had further concluded that the defendant’s waiver was intelligent, noting that there was no evidence that he lacked sufficient intelligence to understand his rights or the consequences of waiving them. The Whitson Court held: “Although the police officers did not obtain an express waiver of defendant’s Miranda rights, decisions of the United States Supreme Court and of this court have held that such an express waiver is not required where a defendant’s actions make clear that a waiver is intended.” (Ibid.; see North Carolina v. Butler (1979) 441 U.S. 369, 374–375.)

Here, the California Supreme Court found “ample evidence support[ed] a finding … that [Frederickson]’s waiver was voluntary, knowing, and intelligent. Officers Steen and Lozano explained each Miranda right to [Frederickson], after which he indicated that he understood. Following a complete admonition, [Frederickson] began to discuss his role in the murder. His actions made clear that a waiver was intended.”

The Court also concluded that Frederickson did not unequivocally invoke his right to counsel when he subsequently asked, “Hey, when am I going to get a chance to call my lawyer? It’s getting late, and he’s probably going to go to bed pretty soon.” The Court explained that when a defendant has waived his Miranda rights and agreed to speak with police, any subsequent invocation of the right to counsel must be unequivocal and unambiguous. (Davis v. United States (1994) 512 U.S. 452, 461–462.) “[A]fter a knowing and voluntary waiver, interrogation may proceed ‘until and unless the suspect clearly requests an attorney.’” (People v. Williams (2010) 49 Cal.4th 405, 427.) The Court held that Frederickson’s statement that it was getting late and his question about when he would get to call his lawyer did not amount to an unequivocal and unambiguous request for counsel. The Court explained that a reasonable officer in Steen and Lozano’s position would have concluded that the remark expressed concern over the length of the interview and a desire to contact counsel when the interview was over. Frederickson never said that he wanted to stop the interview immediately and consult counsel.

The California Supreme Court thus concluded that Frederickson’s statements from the June 14 interview were properly obtained, and so it followed that his subsequent statements at the August 12 interview did not carry any taint from the previous interview. The Court observed that the investigators readvised Frederickson of his Miranda rights before beginning the August 12 interview, and that he signed a waiver. The Court also determined that the record did not demonstrate that defendant failed to understand or validly waive his rights. Accordingly, the Court affirmed on these matters.

D. No extension of Bivens damages remedy for cross-border shooting because such a claim has foreign relations and national security implications and involves tortious conduct abroad.

Hernandez v. Mesa, 140 S. Ct. 735 (2020)

Facts: Sergio Adrián Hernández Güereca, a 15-year-old Mexican national, was with a group of friends in a concrete culvert that separates El Paso, Texas, from Ciudad Juarez, Mexico. The border runs through the center of the culvert, which was designed to hold the waters of the Rio Grande River but is now largely dry. Border Patrol Agent Jesus Mesa, Jr., detained one of Hernández’s friends who had run onto the United States’ side of the culvert. After Hernández, who was also on the United States’ side, ran back across the culvert onto Mexican soil, Agent Mesa fired two shots at Hernández; one struck and killed him on the other side of the border.

According to Hernández’s parents, he was playing a game with his friends that involved running back and forth across the culvert separating El Paso, Texas, from Ciudad Juarez, Mexico. According to Agent Mesa, Hernández and his friends were involved in an illegal border crossing attempt, and they pelted him with rocks.

The shooting drew international attention, and the United States Department of Justice investigated. The Department concluded that Agent Mesa had not violated Customs and Border Patrol policy or training, and declined to bring charges or take other action against him. The United States also denied Mexico’s request for Agent Mesa to be extradited to face criminal charges in Mexico.

Hernández’s parents sued for damages in the United States District Court for the Western District of Texas under the United States Supreme Court’s decision in Bivens v. Six Unknown Fed. Narcotics Agents, 403 U. S. 388 (1971), alleging that Mesa violated Hernández’s Fourth and Fifth Amendment rights. The District Court dismissed their claims, and the United States Court of Appeals for the Fifth Circuit affirmed. After the United States Supreme Court vacated that decision and remanded for further consideration in light of Ziglar v. Abbasi, 582 U. S. ___, 137 S. Ct. 1843, 198 L. Ed. 2d 290 (2017), the Fifth Circuit again affirmed, refusing to recognize a Bivens claim for a cross-border shooting. The parents petitioned and the United States Supreme Court granted certiorari.

Held: The Supreme Court affirmed in a 5-4 decision. Justice Alito was joined in the opinion by Justices Roberts, Gorsuch, Thomas, and Kavanaugh. The Court observed that in Bivens, the Court broke new ground by implying a Fourth Amendment claim for damages even though no federal statute authorized such a claim. The Court later extended Bivens’ reach to cover two additional Constitutional claims under the Fifth and Eighth Amendments.[6] However, the Court here explained, Bivens’ expansion has since become “a ‘disfavored’ judicial activity” (Abbasi, supra, at ___, 137 S. Ct. 1843, 198 L. Ed. 2d 290, 299), and the Court has generally expressed doubt about its authority to recognize causes of action not expressly created by Congress.[7] The Court added that the Court’s justices had previously “gone so far as to observe that if ‘the Court’s three Bivens cases [had] been . . . decided today,’ it is doubtful that we would have reached the same result, 582 U. S., at ___, 137 S. Ct. 1843, 198 L. Ed. 2d 290, at 309. And for almost 40 years, we have consistently rebuffed requests to add to the claims allowed under Bivens.”

With the rarity of Bivens extensions thus established, the Court explained the applicable test. When considering whether to extend Bivens, the Court uses a two-step inquiry that first asks whether the request involves a claim that arises in a “new context” or involves a “new category of defendants.”[8] If so, the Court then asks whether there are any “special factors [that] counse[l] hesitation” about granting the extension. Abbasi, supra, 198 L. Ed. 2d 290, at 309.

The Court concluded that it was “glaringly obvious” that the parents’ Bivens claims here arose in a new context. The Court explained that the parents’ claims were based on the same constitutional provisions as claims in cases in which damages remedies were previously recognized, but the context—a cross-border shooting—was significantly different . . . from previous Bivens cases. The Court explained that the petitioners’ cross-border shooting claims involved a “risk of disruptive intrusion by the Judiciary into the functioning of other branches.” Abbasi, supra, ___, 137 S. Ct. 1843, 198 L. Ed. 2d 290.

The Court consequently turned to the second step of the inquiry, concluding that multiple, related factors counseled hesitation before extending Bivens remedies into this new context. The Court explained that expanding Bivens here would impinge on foreign relations and risk interfering with the Executive Branch’s lead role in foreign policy and diplomacy. The Court found another factor in the risk of undermining border security, given its connection to national security. Moreover, a third factor was presented by the fact that Congress has repeatedly declined to authorize the award of damages against federal officials for injury inflicted outside U. S. borders. The Court explained that Congress’s decision not to allow suit in these contexts further indicated that the Judiciary should not create a cause of action that extended across U. S. borders either. Lastly, the Court explained that Congress should be the governmental branch to create a damages remedy, not the courts, pursuant to the separation of powers doctrine.

Justice Ginsburg dissented, joined by Justices Breyer, Sotomayor, and Kagan. The dissent would have held that the plaintiffs’ complaint crossed the Bivens threshold. Justice Ginsburg noted that at the time of the incident, the officer did not know whether the boy he shot was a U. S. national or a citizen of another country.[9] Justice Ginsburg stated that Abbasi acknowledged the “fixed principle” that plaintiffs may bring Bivens suits against federal law enforcement officers for “seizure[s]” that violate the Fourth Amendment,[10] and that using lethal force against a person who posed no immediate threat to the officer and no threat to others surely qualified as an unreasonable seizure. Tennessee v. Garner, 471 U. S. 1, 11, 105 S. Ct. 1694, 85 L. Ed. 2d 1. Justice Ginsburg noted that according to the complaint, Hernández was unarmed and posed no threat to Mesa or others. Justice Ginsburg noted that Mesa acknowledged at oral argument that Hernández’s parents could have maintained a Bivens action had the bullet hit Hernández while he was running up or down the United States side of the embankment. Justice Ginsburg stated: “The only salient difference here: the fortuity that the bullet happened to strike Hernández on the Mexican side of the embankment. But Hernández’s location at the precise moment the bullet landed should not matter one whit. After all, ‘[t]he purpose of Bivens is to deter the officer.’ Abbasi, 582 U. S., at ___, 137 S. Ct. 1843, 198 L. Ed. 2d 290, at 312 (internal quotation marks omitted).” She added: “It scarcely makes sense for a remedy trained on deterring rogue officer conduct to turn upon a happenstance subsequent to the conduct—a bullet landing in one half of a culvert, not the other.” “Rogue U.S. officer conduct,” she argued, “falls within a familiar, not a ‘new,’ Bivens setting.

Justice Ginsburg explained that even if the setting could be characterized as “new,” the plaintiffs lacked recourse to alternative remedies (which remained a significant consideration under Abbasi’s guidelines), and no “special factors” counsel against a Bivens remedy. Justice Ginsburg found that neither U. S. foreign policy nor national security was in fact endangered by the litigation. The plaintiffs here, the dissent explained, targeted, not policy nor policymakers, but instead targeted the rogue actions of a rank-and-file law enforcement officer acting in violation of rules controlling his office. Moreover, the dissent maintained that concerns attending the application of U.S. law to conduct occurring abroad were not involved, because the plaintiffs sought the application of U. S. law to conduct occurring inside U.S. borders.

EMPLOYMENT

The Equal Pay Act’s fourth affirmative defense of “factors other than sex” comprises only job-related factors; prior rate of pay was not a “factor other than sex.”

Rizo v. Yovino, 2020 U.S. App. LEXIS 6345 (9th Cir. Feb. 27, 2020)

Facts: The Fresno County (“County”) Office of Education hired Aileen Rizo as a math consultant in October 2009. The County set its new employees’ salaries according to a pay schedule governed by Standard Operating Procedure 1440 (“SOP 1440”), which started with the employee’s prior wages and increased the wages by 5 percent. Her starting wage at the County was $62,133 for 196 days of work, plus an additional $600 for holding a master’s degree. In 2012, Rizo learned that a newly hired male math consultant’s starting pay was $79,088, significantly more than Rizo was paid after working three years for the County. Rizo realized that she was the only female math consultant at the County, and that all of her male colleagues were paid more than she was, even though she had more education and experience.

Rizo filed a complaint alleging in part that the County violated the Equal Pay Act (“EPA”), 29 U.S.C. section 206(d). In 1963, Congress enacted the EPA to combat pay disparities caused by sex discrimination, but it allowed employers to justify different pay for employees of the opposite sex based on three specifically enumerated affirmative defenses, or “any other factor other than sex.” Id.

The County moved for summary judgment. The County did not contest that Rizo was paid less than her male counterparts or that Rizo established a prima facie EPA violation. Instead, the County argued that Rizo’s pay was the result of SOP 1440, and that this pay policy, which was based solely on its employees’ prior pay, was a “factor other than sex” that defeated Rizo’s EPA claim. The District Court denied the County’s motion, explaining that the County’s “SOP 1440 necessarily and unavoidably conflict[ed] with” the EPA.

A three-judge panel of the Ninth Circuit Court of Appeals reversed, holding that the District Court was bound by Kouba v. Allstate Insurance Co., 691 F.2d 873 (9th Cir. 1982). Kouba held that the EPA “does not impose a strict prohibition against the use of prior salary,” so long as employers consider prior pay “reasonably” to advance “an acceptable business reason.” Id. at 876-77, 878. Subsequently, a majority of the active members of the Ninth Circuit voted to hear the County’s interlocutory appeal en banc. The en banc Court issued an opinion, but the United States Supreme Court vacated the en banc decision on a procedural issue, and remanded.

Held: The Ninth Circuit Court of Appeals took the case en banc to reconsider Kouba’s rule that prior pay could qualify as an affirmative defense to an EPA claim if the employer considered prior pay in combination with other factors and used it reasonably to effectuate a business policy.

The Ninth Circuit explained that “Congress’ purpose in enacting the Equal Pay Act was to remedy what was perceived to be a serious and endemic problem of employment discrimination in private industry.” Corning Glass Works v. Brennan, 417 U.S. 188, 195 (1974). The EPA was described as “a very simple piece of legislation” establishing that “equal work will be rewarded by equal wages.”[11]

The EPA provides: “No employer . . . shall discriminate . . . between employees on the basis of sex by paying wages to employees . . . at a rate less than the rate at which he pays wages to employees of the opposite sex . . . for equal work on jobs the performance of which requires equal skill, effort, and responsibility, and which are performed under similar working conditions . . . .” 29 U.S.C. section 206(d)(1). The statute identifies four exceptions to its equal-pay mandate: “except where such payment is made pursuant to (i) a seniority system; (ii) a merit system; (iii) a system which measures earnings by quantity or quality of production; or (iv) a differential based on any other factor other than sex . . . .” Id. (emphasis added). The Court explained that these four exceptions acted as affirmative defenses to an EPA claim. On appeal, the County contended that its policy of setting employees’ wages based on their prior pay was premised on a factor other than sex. Therefore, the County argued, its use of prior pay was a valid affirmative defense.

Considering the fourth exception, the Ninth Circuit agreed with other circuits that the scope of the “factor other than sex” affirmative defense was limited, and that “the ‘factor other than sex’ defense does not include literally any other factor . . . .” EEOC v. J.C. Penney Co., Inc., 843 F.2d 249, 253 (6th Cir. 1988). The Court explained that because the three enumerated exceptions were all job-related, and the elements of the “equal work” principle were job-related, Congress’ use of the phrase “any other factor other than sex” (emphasis added) supported the statutory interpretation that the fourth exception was also limited to job-related factors. The Court found that other rules of statutory construction, as well as the EPA’s history and purpose supported the view that an affirmative defense based on the fourth exception comprised only job-related factors.

The Ninth Circuit then held that prior pay did not qualify as a job-related factor that could defeat a prima facie Equal Pay Act claim. The Court explained that it did not presume that any particular employee’s prior wages were depressed as a result of sex discrimination. However, the Court stated, “the history of pervasive wage discrimination in the American workforce prevents prior pay from satisfying the employer’s burden to show that sex played no role in wage disparities between employees of the opposite sex. And allowing prior pay to serve as an affirmative defense would frustrate the EPA’s purpose as well as its language and structure by perpetuating sex-based wage disparities.” The Court concluded that setting wages based on prior pay risked perpetuating the history of sex-based wage discrimination that the EPA was designed to prevent. The Court also overruled Kouba.

Here, the Court applied the rule that only job-related factors qualified under the EPA’s fourth affirmative defense and that prior pay was not one of them, and found that Rizo’s prior wages did not qualify as any other factor other than sex.” Accordingly, the Ninth Circuit Court of Appeals affirmed the District Court’s order denying the County’s motion for summary judgment, and remanded for further proceedings.

 MISCELLANEOUS

When a person refuses to identify himself to an officer who is writing a citation to that person for an infraction offense, that refusal can be the basis for a finding that the person resisted, obstructed, or delayed an officer in violation of Penal Code section 148(a)(1).

People v. Knoedler, 44 Cal. App. 5th Supp. 1 (2019)[12]

Facts: On August 19, 2018, defendant Brent Knoedler was approached by Ranger Sarai Jimenez. Knoedler was holding an open can of beer near Beach and Main Streets in the City of Santa Cruz. Ranger Jimenez asked Knoedler for identification in order to issue him a citation for violating a local ordinance making it an infraction to possess open containers of alcoholic beverages in a public place. Knoedler offered to throw his alcoholic beverage away in a nearby garbage can. After repeated requests, Knoedler refused to provide any identification or tell his name to Ranger Jimenez.

Ranger Jimenez called for backup. Officer Denise Cockrum arrived on the scene. Knoedler refused to answer Officer Cockrum’s question as to how many alcoholic beverages he had consumed, and he continued to refuse to identify himself. Officer Cockrum explained that she needed Knoedler to identify himself “[s]o we know who we’re issuing, in this case, a ticket to.” Ranger Jimenez testified that Knoedler was unresponsive and would only state that he had no reason to cooperate because he was not going to drive a vehicle. Intending to arrest Knoedler, Officer Cockrum grabbed Knoedler’s arm. As Officer Cockrum attempted to restrain Knoedler, Knoedler broke free and hit the officer hard enough that the impact caused her body camera to be knocked off her person. A chase and struggle ensued. Knoedler was eventually detained by other responding officers.

A jury found Knoedler guilty of violating Penal Code section 148(a)(1) (resisting, obstructing, or delaying a peace officer). The Santa Cruz County Superior Court placed Knoedler on a 36-month conditional sentence, ordered him to serve 60 days in the county jail, and imposed $573.00 in fines and fees. Knoedler appealed.

Held: On appeal to the Appellate Division of the Santa Cruz County Superior Court, Knoedler claimed the trial court prejudicially erred when it instructed the jury that he could be convicted of a violation of Section 148(a)(1) by failing to identify himself. He contended that the modified version of CALCRIM No. 2656 given to the jury was an incorrect statement of the law, which violated his right to due process and a fair trial under the Sixth and Fourteenth Amendments to the United States Constitution.

The modified version of CALCRIM No. 2656 provided in pertinent part:

“The People allege that the defendant resisted, obstructed or delayed Officer Denise Cockrum by doing the following:

“1. Refusing to provide identification to Officer Cockrum.

“2. Refusing to put his hands behind his back.

“3. Fleeing from Officer Cockrum.

“You may not find the Defendant guilty unless you all agree that the People have proved that the Defendant committed at least one of the alleged acts of resisting, obstructing, or delaying a peace officer who was lawfully performing his or her duties, and you all agree on which act he committed.”

The Appellate Division first determined that the Knoedler was not precluded from raising this issue because his claim of instructional error affected his substantial rights, despite the People’s argument that Knoedler waived his claim of instructional error because of his trial counsel’s failure to object during the discussion regarding jury instructions.

Knoedler relied on People v. Quiroga (1993) 16 Cal.App.4th 961, which held that “a refusal to disclose personal identification following arrest for a misdemeanor or infraction cannot constitute a violation of Penal Code section 148.” (Id. at p. 970, italics added.) However, the Appellate Division noted that in this case the officer was not arresting defendant at the time that Knoedler refused to provide his identification or otherwise identify himself. Instead, the officer was attempting to write Knoedler a citation for a municipal code infraction. In Quiroga, the defendant’s failure to provide identification after his arrest did not delay or obstruct the arresting officer because “[t]he arrest had already been effected,” and the defendant had not yet been brought to the jail for booking. (Quiroga, supra, at p. 966.) The Quiroga court held that it was a violation of Section 148 when the defendant refused to provide identification at booking, due to “the public interest in discovering the identity of a suspect that might reasonably justify criminal sanction.” (Quiroga, supra, at p. 971.)

The Appellate Division explained that the public interest rationale identified in Quiroga applied to the issuance of a citation for an infraction violation. “Without any way to identify the person who is being cited,” the Appellate Division explained, “the police cannot perform their duties.” Quiroga noted that for infractions and misdemeanors, Penal Code section 853.5 governed the situation in which a person fails to provide identification. The Appellate Division explained that under Section 853.5, a person may be arrested—rather than simply cited and released—if “the arrestee refuses to sign a written promise, has no satisfactory identification, or refuses to provide a thumbprint or fingerprint.” (Section 853.5(a).) The Appellate Division observed that the fact that a person could be subject to a custodial arrest for failure to provide identification regarding a citation did not mean that such failure to provide identification would not delay or obstruct an officer in the performance of his or her duties. Quiroga did not apply here to support Knoedler’s argument because Quiroga considered only whether “refusal to disclose personal identification following arrest for a misdemeanor or infraction” could constitute a violation of Section 148. (Quiroga, supra, 16 Cal.App.4th at p. 970, italics added.)

The Appellate Division consequently held that when a person refuses to identify himself to an officer who is writing a citation to that person for an infraction offense, that refusal can be the basis for a finding that the person resisted, obstructed, or delayed an officer in violation of Penal Code section 148(a)(1). The Appellate Division found that the trial court did not err by instructing the jury that Knoedler’s refusal to identify himself could be found to constitute a violation of Section 148(a), and accordingly affirmed.

[1] See 34 U.S.C. sections 30301-30309 (2017); 28 C.F.R. sections 115.11-115.16.

[2] See Sepulveda v. Ramirez, 967 F.2d 1413, 1415-16 (9th Cir. 1992) (citing York v. Story, 324 F.2d 450 (9th Cir. 1963)). In York, the Ninth Circuit had relied upon the Fourteenth Amendment in reasoning that “the security of one’s privacy against arbitrary intrusion by the police is basic to a free society and therefore ‘implicit in the concept of ordered liberty’ under the due process clause.” Grummett v. Rushen, 779 F.2d 491, 494 (9th Cir. 1985) (quoting York, 234 F.2d at 455). The Ninth Circuit in York held that the plaintiff had stated a privacy claim under the Fourteenth Amendment because the Court “could not conceive of a more basic subject of privacy than the naked body.” Id. (citation omitted). The Court noted that “[t]he desire to shield one’s unclothed figure from [the] view of strangers, and particularly strangers of the opposite sex, is impelled by elementary self-respect and personal dignity.” Id. (internal quotation marks and citation omitted).

[3] Scott v. Harris, 550 U.S. 372, 378 (2007).

[4] People v. Tate, 49 Cal.4th 635, 683 (2010).

[5] 17 Cal.4th 229 (1998).

[6] See Davis v. Passman, 442 U. S. 228 (1979); Carlson v. Green, 446 U. S. 14 (1980).

[7] See, e.g., Jesner v. Arab Bank, PLC, 584 U. S. ___, ___, 138 S. Ct. 1386, 200 L. Ed. 2d 612 (2018).

[8] Correctional Services Corp. v. Malesko, 534 U. S. 61, 68 (2001).

[9] See Hernández v. Mesa, 582 U. S. ___, ___-___, 137 S. Ct. 2003, 198 L. Ed. 2d 625, 632 (2017) (per curiam).

[10] 582 U. S., at ___, 137 S. Ct. 1843, 198 L. Ed. 2d 290, at 308.

[11] S. Rep. No. 88-176, at 1 (1963); Equal Pay Act of 1963, S. Comm. on Labor, 88th Cong. 12 (1963) (statement of Sen. Clifford P. Case).

[12] Appellate Division, Superior Court of California, Santa Cruz County, No. 19AP00003.