Author: McKenziescott

IRS Agent Audits Potty, Violates Fourth Amendment

Ioane v. Hodges, 2018 U.S. App. LEXIS 25569 (9th Cir. Sep. 10, 2018)

Okay, I made up the phrase “potty audit,” but here’s what happened. IRS agents lawfully executed a search warrant in the presence of the homeowners. Or rather, they were executing it lawfully–until the homeowners needed to use the bathroom. While the husband was permitted to go in privacy after agents did a cursory search of the area, the wife was not so fortunate. Id. at *4. A female IRS agent insisted on watching while the wife went to the bathroom. Specifically, she required the wife to hold up her dress while relieving herself, and the agent stood facing her and watched the entire time. Id. The wife later sued. The Ninth Circuit upheld the district court’s ruling that the search was unreasonable under the Fourth Amendment, and that qualified immunity did not protect the agent from liability.

This case may help our criminal folks in that it starts with a helpful review of right-to-bodily-privacy cases under the Fourth Amendment. It applies the prevailing test that: “Determining the reasonableness of a particular search involves balancing the degree to which the search intrudes upon an individual’s privacy against the degree to which the search is needed to further legitimate governmental interests.” Id. at 7 (citing United States v. Knights, 534 U.S. 112, 118-19 (2001)). The required factors to consider are: “(1) the scope of the particular intrusion, (2) the manner in which it is conducted, (3) the justification for initiating it, and (4) the place in which it is conducted.” Id. at *8 (internal citation omitted).

The Court also reminded the government that even when a search warrant is lawful, it “authorize[s] only the search of the premises, not the individuals on the premises.” Id at *12. (citing Ybarra v. Illinois, 444 U.S. 85, 91-92 (1979) (rejecting the argument that individuals’ Fourth Amendment rights are abrogated merely by presence during a search-warrant execution).

The Court also found significant the fact that the search occurred in a home bathroom. “The law recognizes heightened privacy interests in the home, which arguably makes this intrusion more egregious, especially when [the wife] herself was not the subject of the search.” Id. at *16. Cf. Kyllo v. United States, 533 U.S. 27, 31 (2001).

Law enforcement’s war on seventh-grade drama.

Scott v. Cty. of San Bernardino, 2018 U.S. App. LEXIS 25568 (9th Cir. Sep. 10, 2018)

A group of seventh-grade girls had some drama with each other, if you can believe that. The semester progressed, and the situation escalated into several physical confrontations. Id. at *4-5. A school resource deputy was summoned to speak to the group of girls to “attempt to mediate.”

If “attempt to mediate” means “get frustrated and arrest them all without individualized probable cause,” then the deputy got an A+ that day. Indeed, he decided to arrest the girls en masse because, as he explained to them, he was not “playing around” and taking them to jail was the easiest way to “prove a point” and “make [them] mature a lot faster.” The deputy stated that he did not care “who [was] at fault, who did what” because “it [was] the same, same ticket, same pair of handcuffs.” Id. at *7-8.

The district court was not impressed. It granted summary judgment against the deputy when some of the girls sued. The Ninth Circuit was nonplussed too, affirming the judgment. Balancing students’ Fourth Amendment rights against the special needs that can arise in a school setting, cf. New Jersey v. T.L.O.,469 U.S. 325 (1985), the Court held that the searches “were unreasonable because they were not justified at their inception.” Id. at *11 (internal punctuation omitted).

Three gems in here help our criminal clients: First, Scott is a nice citation for the need for individualized probable cause: here, “generalized allegations of group bickering and fighting, not specific information about [plaintiffs]” did not meet that standard. Id. at *11. Second, Scott pushes back against the standard trope that “the officer’s [racist, vindictive, pretextual] motivations are irrelevant.” That’s simply not true in purported “special needs” cases: “[W]hile the traditional Fourth Amendment analysis ‘is predominantly an objective inquiry,’ the ‘actual motivations’ of officers may be considered when applying the special needs doctrine.” Id. at *12. Here, because the deputy admittedly acted for an impermissible motive–trying to “prove a point” and show he wasn’t “playing around”–then “this alone is sufficient to conclude that a warrantless arrest is unreasonable.” Id. at *13 (internal punctuation omitted). Finally, we can use this case for the proposition that even arrests that are justified at their inception become unlawful if not “reasonably related in scope to the circumstances which justified the interference in the first place.” Id. at *14.

In re Maguire, 57 Cal. 604 (1881). People v. Jemnez, 49 Cal. App. 2d Supp. 739 (1942).Sail’er Inn, Inc. v. Kirby, 5 Cal.3d 1 (1971).

In 1880, San Francisco passed a law prohibiting women from working in any “dance-cellar, bar-room, or in any place where… liquors are used or sold.” The belief was that “such employment of a woman [was] of a vicious tendency, and hurtful to sound public morality.” And so, Mary Maguire was arrested for working in a “bar-room where liquors were sold.”

However, Section 18, Article XX of the California Constitution provided that: “No person shall on account of sex be disqualified from… pursuing any lawful… profession.” And so the California Supreme Court ordered Mary released, finding San Francisco’s law unconstitutional.

BUT in an interesting turn of events, 61 years later, in People v. Jemnez, an appellate court held that In re Maguire was no longer good law and that a law prohibiting women from mixing drinks was permissible. 49 Cal. App. 2d Supp. 739 (1942). Such a regulation (making it a crime for a woman who was not an Alcohol Beverage Control Act licensee or the wife of a licensee to mix drinks) was necessary because such employment of women “would be detrimental to society.”

The Court surmised “that the legislature may well have concluded that it would be an unwholesome influence upon the women themselves, the general public, and upon our young people, to permit women generally to act as bartenders.”

THEN 90 years after Mary Maguire’s case, the California Supreme Court again weighed in on this issue. In 1971, liquor licensees challenged the provision making it illegal to hire women bartenders… and won! Sail’er Inn, Inc. v. Kirby, 5 Cal.3d 1 (1971). At the time, women could be cocktail waitresses, but they could not be bartenders under existing state law. The California Supreme Court rejected the “the peculiar and wholly unacceptable generalization that women in bars, unrestrained by husbands or the risk of losing a liquor license, will commit improper acts.” The Court found this “rationale fails as a compelling state interest because it is wholly arbitrary and without support in logic or experience.”

The Court went on to reject concerns “based upon notions of what is a ‘ladylike’ or proper pursuit for a woman in our society rather than any ascertainable evil effects of permitting women to labor behind those ‘permanently affixed fixtures’ known as bars. Such notions cannot justify discrimination against women in employment.”

And so, for the second time in 100 years, the California Supreme Court found such restrictions on women illegal. This time holding that they violate women’s equal protection rights under both the state and federal constitutions.

Peck v. Montoya, 51 F.4th 877 (9th Cir. 2022).

In October, the Ninth Circuit published an excessive force decision in Peck v. Montoya, 51 F.4th 877 (9th Cir. 2022). The decision is important for Justice Warriors to understand because it, unfortunately, narrows who can sue and be sued for constitutional injuries.

The case arises from a police-shooting that took the life of Paul Mono, a legally blind man in his 60’s who lived with his wife Susan Peck. Mr. Mono, upset about a remodel, showed his real estate agent a gun and said he wanted to kill their contractor. The contractor heard it over the phone, hung up, and called 9-1-1. Mr. Mono calmed down, put his gun away, and returned to speak with the real estate agent from his porch. But, when sheriff’s deputies arrived, they treated Mr. Mono like an active shooter, surrounded his home, and confronted him with guns drawn. During a prolonged stalemate (in which Mr. Mono mocked and insulted deputies – even pulling down his pants and “mooning” them), deputies learned Mr. Mono’s gun was strapped in a holster sitting in the house. When Mr. Mono moved in the house, two deputies shot him through the window – killing him. Deputies say Mr. Mono grabbed his gun before they fired. But the gun was found in its holster, a neighbor testified Mr. Mono while he was moving away from the gun, and ballistic experts refuted deputies’ account. Ms. Peck brought a substantive due process claim on her own behalf as well as constitutional claims for her husband’s estate against all the deputies at the scene.

Most of the Ninth Circuit’s qualified immunity analysis is uneventful – viewing the facts in the light most favorable to Ms. Peck, she can show the deputies shot her unarmed and blind husband without provocation and it is clearly established that police cannot use deadly force against someone does not pose an “immediate threat to their safety.” 51 F.4th at 887. However, the Ninth Circuit still found ways to diminish Ms. Peck’s claims in two ways.

First, the Ninth Circuit eliminated the § 1983 claims against the deputies who held their fire and narrowed the universe of participants who can be liable in the future. Specifically, the Ninth Circuit rejected a but-for-causation theory of constitutional liability and further held that “liability may not be imposed based on a ‘team effort’ theory that would ‘allow the jury to lump all the defendants together’.” Id. at 890. Instead, liability for constitutional violations now only extends to those who either (1) “knew about and acquiesced in” the violation as part of a “common plan” or (2) “set in motion” acts by others which they “knew or reasonably should have known” would cause others to violate the constitution. Id. at 891. By that standard, none of the surrounding deputies were liable because the shooting was unplanned, even if they violated policy and unnecessarily escalated the situation by their speech or actions.

Second, the Ninth Circuit held that Ms. Peck’s personal claim for loss of familial association fails. Specifically, such a claim must be based on conduct that shocks the conscience and, according to the Ninth Circuit, “split-second decisions” by police can only shock the conscience if they “act[] with a purpose to harm unrelated to legitimate law enforcement objectives.” Id. at 893 (emphasis original). Even by this absurdly high standard, it seems like Ms. Peck should get her claim to a jury – one might reasonably infer that police shot her blind husband because he had insulted, frustrated, and angered them in the prolonged standoff. After all, he was unarmed and moving away from the gun when they killed him. Still, the Ninth Circuit subtly violates its own jurisdictional rule about factual inferences in qualified immunity appeals and credits the deputies’ self-serving claim to an innocent motive.

In these ways, it got harder to pursue certain Constitutional claims in the Ninth Circuit this fall. Ms. Peck’s case seeking justice for her husband will go on and hopefully succeed. But one of the main takeaways from Peck is a lesson for litigators reading between the lines: do everything possible to keep state-law claims alive in the case alongside the constitutional claims. The claims the Ninth Circuit dismissed here have state-law tort analogues that are not subject to the same qualified immunity analysis and heightened standards. As long as you can meet the attendant tort claim deadlines, surviving family can bring claims for wrongful death and negligence claims against other involved-deputies without having to prevail on these increasingly-tough-to-win constitutional claims.
Other Notable Constitutional Case News:

In Bledsoe v. Carreno, 53 F.4th 589 (10th Cir. 2022), a divided panel of the Tenth Circuit joined a handful of circuits in finding that a claim for failing-to-intervene and prevent or stop a constitutional violation may be brought outside the excessive force context. At least one circuit (the Eleventh) has found to the contrary. Our team did a quick check and the issue appears to be an open question in the Ninth Circuit.

Fourth and Fifth Amendments apply to cross-border shooting where victim is in Mexico.

Rodriguez v. Swartz, 899 F.3d 719 (9th Cir. 2018)

While standing on high ground on the U.S. side of the border, Border Patrol Agent Lonnie Swartz opened fire through the border fence, killing a sixteen-year-old boy. The boy had been merely walking down the street, doing nothing illegal nor posing a threat to anyone. Although the boy was standing on Mexican soil when he was shot, the Court held that the United States Constitution applied, and it denied qualified immunity to the officer.

First, the Court upheld the obvious–that the force was objectively unreasonable. The panel observed that “every reasonable law enforcement officer should know that ‘officers may not shoot to kill unless, at a minimum, the suspect presents an immediate threat to the officer or others, or is fleeing and his escape will result in a serious threat of injury to persons.’ And ‘whenever practicable, a warning must be given before deadly force is employed.’” Id. at 729.

The panel also rejected the claim that the Fourth Amendment did not apply because the “seizure” occurred in Mexico. It distinguished United States v. Verdugo-Urquidez, 494 U.S. 259 (1990), which held that the Fourth Amendment did not apply to the search and seizure of a Mexican citizen’s property in Mexico. “Unlike the American agents in Verdugo-Urquidez, who acted on Mexican soil, Swartz acted on American soil. Just as Mexican law controls what people do there, American law controls what people do here.” Id. at 731. The panel further observed that the “practical concerns… about regulating conduct on Mexican soil do not apply here… Applying the Constitution in this case would simply say that American officers must not shoot innocent, non-threatening people for no reason.” Id. at 731.

Interestingly, the Court observed that even if the Fourth Amendment did not apply because the seizure occurred in Mexico, Swartz could still be liable under the Fifth Amendment “shock the conscience” test. “We cannot imagine anyone whose conscience would not be shocked by the cold-blooded murder of an innocent person walking down the street in Mexico or Canada by a U.S. Border Patrol agent on the American side of the border.” Id. at 734.

Open-carry, self-defense, and the Second Amendment

Young v. State of Hawaii, 896 F.3d 1044 (9th Cir. 2018)

This case represents an interesting intersection between open-carry laws, the right to self-defense, and the Second Amendment.

Young was denied a license to carry a handgun in public. Hawaii statute limited open-carry licenses to only those “engaged in the protection of life and property,” which essentially meant security guards and other similarly-employed citizens. He sued under 42 U.S.C. § 1983, claiming that the denial violated his Second Amendment right to carry a loaded firearm in public for self-defense. Id. at 1049. The district court dismissed the complaint on the premise that the Second Amendment “establishes only a narrow individual right to keep an operable handgun at home for self-defense.”

The Ninth Circuit reversed. Following an extensive review of the text and history of the Second Amendment, the panel held that “the right to bear arms must guarantee some right to self-defense in public. While the concealed carry of firearms categorically falls outside such protection, we are satisfied that the Second Amendment encompasses a right to carry a firearm openly in public for self-defense.” Accordingly, the statute “violated the core of the Second Amendment and is void.” Id. at 1071.

This case might be helpful to review the next time a criminal client is accused in a firearms-related offense – particularly if the alleged violation is regulatory in nature.

Sheriff’s deputies liable under Fourth Amendment / Section 1983 for shooting that stemmed from warrantless entry.

Mendez v. County of Los Angeles, 897 F.3d 1067 (9th Cir. 2018)

While looking for a parolee-at-large, Los Angeles County Sheriff deputies unlawfully entered a home. They did not announce their presence beforehand. The deputies awoke the homeowner in his living room, who reflexively reached for a BB gun. Deputies shot him multiple times, causing the eventual amputation of the man’s leg.

Plaintiffs filed suit under 42 U.S.C. § 1983. After an initial appeal and remand from the Supreme Court, the Ninth Circuit found for plaintiffs. It rejected the deputies’ argument that the armed confrontation could have occurred with or without a warrant: “the officers’ argument misconstrues the duty not to enter a home without a warrant as a duty simply to get a warrant – overlooking the fact that absent a warrant, consent, or exigent circumstances, there is a duty not to enter.” It continued, “for the purposes of § 1983, a properly issued warrant makes an officer’s otherwise unreasonable entry non-tortious – that is, not a trespass. Absent a warrant or consent or exigent circumstances, an officer must not enter; it is the entry that constitutes the breach of duty under the Fourth Amendment. As a result, the relevant counter-factual for the causation analysis is not what would have happened had the officers procured a warrant, but rather, what would have happened had the officers not unlawfully entered the residence.”

Under these conditions, “armed officers entering a house will necessarily present a substantial risk to anyone in the house they perceive as being armed. It is all the more important that officers in such cases abide by their duties under the Fourth Amendment.” Id. at 1078. Here, “both the entry and the failure to knock and announce were proximate causes of the Mendezes’ injuries. Officers cannot properly escape liability when they breach two duties, each breach being necessary for the harm to occur, just because one of the duties was subject to qualified immunity. That would lead to the absurd result that an officer who breaches only one duty is liable, but that an officer who breaches multiple duties is not.” Id. at 1078.

The Court also held that the officers were negligent under California law. “It is beyond negligent for officers to enter a dwelling with guns drawn and without announcing their presence, especially when they are on notice that the dwelling is occupied by a third party, unless there are special circumstances that might justify such action. No such special circumstances were present in this case, and it is foreseeable that such reckless behavior can lead to tragic accidents like the one that occurred here.” Id. at 1082-1083.

ADA Compliance During Police Detention

Vos v. City of Newport Beach, No. 16-56791, 2018 U.S. App. LEXIS 15633 (9th Cir. June 11, 2018)

Police surrounded a mentally-ill man at a 7-11 store. As has become all too common, the police shot and killed him. The Vos case confirms that in addition to more traditional excessive-force and negligence claims, there was a viable cause of action for violating the Americans with Disabilities Act. Specifically, Title II of the ADA prohibits a public entity from discriminating against any “qualified individual with a disability” in the provision of public services. Id. at 22. Importantly, “Title II applies to arrests.” Id. (citing Sheehan v. City & Cty. of S.F., 743 F.3d 1211, 1231 (9th Cir.), reversed in part at 135 S. Ct. 1765, 1772 (2015)). Thus, when clients have mental-health issues, or other recognized disabilities, the law requires police to consider and potentially accommodate these issues – even during otherwise lawful law-enforcement encounters.

For an example of the police completely botching ADA compliance by mistaking an autistic boy for a drug user, see this lawsuit that we filed recently against an Arizona police department.

Finally, the Court in Vos concluded that it was a factual question whether the police used excessive-force under the Fourth Amendment (although it concluded that qualified immunity applied on these facts). Id. at *18 (9th Cir. June 11, 2018)

Juror bias, excessive force, and attorneys’ fees.

Rodriguez v. County of Los Angeles, 891 F.3d 776 (9th Cir. 2018)

This case stemmed from a series of cell extractions carried out by the L.A. County Sheriff at the Men’s Central Jail, and carries lessons for all trial practitioners, whether civil or criminal.

First, it reminds that excluding a juror for implied bias is really hard. It is only for “extraordinary” circumstances.” Id. at 60. “We have cautioned that courts assessing implied bias should hesitate before formulating categories of relationships which bar jurors from serving in certain types of trials.” Id. (citations omitted). For example, generally, law-enforcement officers are not categorically barred from criminal cases, NAACP members are not ineligible for civil-rights cases, Catholics can serve on cases involving abortion, and so on. This is a helpful case citation to have when a prosecutor wants to preserve strikes by getting rid of a defense-friendly jury for-cause.

Rodriguez also has an interesting discussion regarding cell extractions, and the excruciating pain that Tasers can inflict. The jury awarded $740,000 in compensatory damages, $210,000 in punitive damages, and a staggering $5.4 million in attorney’s fees. The Ninth Circuit upheld the fees award based on the difficult facts and risks undertaken by plaintiffs’ counsel in suing the local sheriff.

Issue Preclusion and the Fourth Amendment

Pike v. Hester, No. 16-16764, 2018 U.S. App. LEXIS 15214, (9th Cir. June 6, 2018)

A police sergeant, apparently acting on a personal vendetta, violated plaintiff’s Fourth Amendment rights when he conducted an after-hours dog search of plaintiff’s locked office. A county justice court granted a restraining order against the sergeant, and afterwards, the plaintiff brought a Section 1983 suit against the sergeant and the police department. Further, plaintiff argued that the restraining-order proceeding resolved the Fourth-Amendment issue for future litigation, and that the sergeant was precluded from re-litigating it in the 1983 suit.

The Ninth Circuit held that issue preclusion did in fact apply, and that the panel was bound by the state justice’s conclusion that the sergeant violated the Fourth Amendment. Applying Nevada issue preclusion law, the panel determined that: (1) the alleged Fourth Amendment violation was at issue in the state court proceeding; (2) the sergeant was a party; (3) the state justice’s order extending the protective order was final for issue preclusion purposes; and (4) the state justices actually and necessarily litigated the Fourth Amendment issue and found that the search was not lawful. The panel further held that it was clearly established at the time of the search that the sergeant’s conduct violated plaintiff’s rights.

McKenzie Scott PC: We Fight for the Little Guy (through fearless trial advocacy, aggressive motions practice, and unwavering client loyalty – that’s how we win).

Today we honor Clara Shortridge Foltz, the first woman to attend UC Hastings. Among many other accomplishments, Foltz was also the first woman in California to: join the Bar, hold statewide office, and serve as deputy district attorney.

U.C. Hastings had originally NOT admitted Clara Shortridge Foltz because the directors of the law school “believed and determined that it was not wise or expedient, or for the best interest of the College, to admit any female as a student therein.” It took Clara Shortridge Foltz suing the law school to gain-for herself and all women in California-the right to study law at U.C. Hastings. Foltz v. Hoge et al., 54 Ca. 28. (1879). And though she won in court, she never enrolled at the law school.

In February, the state released the results of an audit revealing that 185 people had died in San Diego County’s jails from 2006 through 2020, raising “concerns about underlying systemic issues with the Sheriff’s Department’s policies and practices.”

This year alone, at least twenty people have lost their lives while in custody in San Diego jails. Even the notorious Rikers Island jail in New York has had fewer deaths this year. To put this into perspective, Rikers has a population exceeding 11,000, while San Diego county’s jails currently house 3,877. These staggering statistics warrant a refresher on the current state of the law with respect to deliberate indifference to the medical needs of those in pretrial custody.

Russell v. Lumitap, 31 F.4th 729 (9th Cir. 2022)

The Ninth Circuit’s opinion in Russell provides a refresher on the state of the law on the deliberate indifference standard while affirming the district court’s denial of summary judgment as to all but one defendant – Nurse Trout.

In January 2016, Patrick Russell, a pretrial detainee, began complaining of various symptoms such as vomiting and hyperventilation, which progressed steadily to include persistent and severe chest pain, anxiety, numb hands and feet, and the inability to calm down or clearly articulate himself. The first nurse he saw gave him Pepto Bismol, told him to stretch, and referred him to Nurse Trout for a mental health screening. Nurse Trout administered nitroglycerin in line with procedures to treat chest pain, but it had no effect. Where a dose of nitroglycerin does not quell chest pain, procedures dictated that paramedics be called to hospitalize the detainee. Instead, Nurse Trout called the on-call doctor, Dr. Le.

Nikie Johnson, DAILY DEMOCRAT, California jails are trying to improve health care. But inmates are still dying. (Aug. 26, 2019 at 7:10 a.m.).
Photo by Jason Farmer, Contributing Photographer to the Daily Democrat.

Dr. Le chose not to drive 15 minutes to examine Mr. Russell, and told Nurse Trout to administer perhaps the only medication any jail has ever been known to reliably administer – Motrin. Over the span of the next several hours, Mr. Russell’s condition only worsened. Yet, nurses continued to provide futile medical care such as breathing exercises and a heating pad. No one called the on-call doctor to report Mr. Russell’s persistent and worsening symptoms. No one called the paramedics until Mr. Russell was unresponsive. By then, it was too late. Mr. Russell passed away at the hospital. A surprise to none of you, I’m sure, Mr. Russell’s cause of death was a major cardiac event – aortic dissection.

Mr. Russell’s estate sued the doctor and nurses for violating his constitutional rights under § 1983 on a theory of deliberate indifference to his serious medical needs. The district court denied the defendants’ summary judgment motion and they appealed.

The Ninth Circuit’s opinion is notable primarily for two reasons.

First, the Ninth Circuit clarified that the objective standard it announced in its 2018 decision, Gordon v. County of Orange, 888 F.3d 1118, applies even to events predating the decision. At the time of Mr. Russell’s death, the deliberate-indifference analysis turned on whether officers were subjectively deliberately indifferent to a substantial risk of serious harm. In Gordon, the Ninth Circuit replaced this with an objective standard whereby a plaintiff must prove a defendant did not take reasonable measures to address a substantial risk even though a reasonable official would have realized the risk. Now, “a plaintiff must ‘prove more than negligence but less than subjective intent – something akin to reckless disregard.’” Russell, 31 F.4th at 739 (quoting Gordon, 888 F.3d at 1125). Applying this standard in Russell, the Ninth Circuit affirmed the denial of summary judgment as to all defendants except Nurse Trout.

Second, the opinion is notable for finding it objectively reasonable for a nurse to rely on a doctor’s advice not to hospitalize a detainee, even though, absent that advice, “a reasonable person in her circumstances would have inferred that [the detainee] was at serious risk if not hospitalized.” Id. at 744. Despite that Mr. Russell was “experiencing classic symptoms of a heart attack” and applicable procedures mandated hospitalization, the Ninth Circuit held, “No clearly established law would have put a reasonable nurse in Nurse Trout’s position on notice that she could violate Russell’s constitutional rights even while relying on Dr. Le’s evaluation and recommendation.” Id.

Unless those who are truly responsible for pervasive inadequate medical care in San Diego and across the country make necessary changes, the tools we have as practitioners to prevent harm to our clients in custody are underwhelming. But what we can do is: (1) continue to raise hell – with the prosecutors, the court, jail staff – when we see a client’s medical needs neglected, (2) keep abreast of the law in the civil rights context – particularly favorable changes such as in Gordon and Russell, and (3) get the press involved to shine a light on jail conditions and humanize for the public those at the mercy of jail staff. Afterall, the sheriff is the only elected law enforcement official in the county.

Last month the Ninth Circuit published a decision on the constitutional implications of what may be perceived by some as a small, annoying police intrusion – chalking the tires of parked cars. The Ninth Circuit’s holding in Verdun creates a Circuit Split over the issue and includes some choice words from the dissenting judge. Verdun v. City of San Diego, 51 F.4th 1033, 2022 WL 14725258 (9th Cir. 2022). Before long, as wild as it seems, the Supreme Court may have to weigh in on whether the “benign practice of lightly dusting chalk on the tire of a car parked in a city space” is prohibited by the Fourth Amendment. Id. at *11.

Here, we provide a bit of background on the issue, why the judges of the Ninth Circuit disagree, and a bit of opinion on what this disagreement indicates about the administrative search doctrine.

Background

This case was brought by two people in San Diego who received tickets for overstaying their welcome in a public parking space and where the investigation consisted of tire chalk. Those two people brought the case on behalf of a putative class of similarly situated, inconvenienced drivers. At the summary judgment stage, the district court accepted a slew of evidence on the traffic-problems created by people circling the block in search of parking and the resource-intensive administrative challenge of enforcing parking laws.

The district court ultimately concluded that chalking tires is a “search” within the meaning of the Fourth Amendment because of the Supreme Court’s trespass to property theory of the Fourth Amendment (developed in United States v. Jones, 565 U.S. 400 (2012) (where placing a GPS device on a car was a search because of the physical trespass on the car)). Generally, a search must be supported by a warrant (not present here) or justified by some level of suspicion (also absent) but the district court granted summary judgment to the municipal defendant under an exception to the warrant requirement for “administrative” searches.

The Majority Decision

On appeal, most of the 9th Circuit panel affirmed the district court’s conclusion.
Before diving into the exception for administrative searches, the Ninth Circuit “assumed” that chalking tires was a search because of the posture of the case and thereby avoided officially deciding whether it was a search. Next, the court went on the examine cases involving the administrative search doctrine, two of which tee up the key distinction upon which the court relied here: Michigan Dep’t of State Police v. Sitz, 496 U.S. 444 (1990) (upholding a DUI checkpoint searching for drunk drivers) and Indianapolis v. Edmond, 531 U.S. 32, 44 (2000) (striking down a dog-sniff checkpoint searching for drugs). The court explained:

warrantless checkpoints have been found not to have general law enforcement as their primary purpose when there is a ‘close connection between the checkpoint and the harm it was seeking to prevent.’ [. . .] Sitz upheld automobile checkpoints to look for intoxicated drivers, but then Edmond struck down virtually identical checkpoints to look for drugs. Edmond explained that the DUI checkpoints at issue in Sitz served a permissible purpose because of the ‘obvious connection between the imperative of highway safety and the law enforcement practice at issue.’ By contrast, the concealment of drugs had no close ‘connection to the roadway,’ so the drug checkpoint at issue in Edmond served only a ‘general interest in crime control.’

Verdun, 2022 WL 14725258, at *8.
From those cases, the Ninth Circuit held that chalking tires is an administrative search because “there is a close connection between the chalking of tires and the harm it seeks to prevent [ . . . .] And because San Diego requires parking officers to chalk all cars in a given area, San Diego has avoided the ‘kind of standardless and unconstrained discretion’ that has presented constitutional problems in other cases by raising the specter of a generalized law enforcement purpose.” Id.

Judge Bumatay dissented from the foregoing analysis.

The Dissent

In his dissent, Judge Bumatay makes an argument that the original meaning of the Fourth Amendment would not have countenanced tire-chalking. He also argues that this search does not fall within the administrative search exception to the warrant requirement because that exception is limited to “uniquely urgent and exceptional cases.” Id. at *19 (J. Bumatay, dissenting). In those cases, Bumatay argues, the need for suspicion-less searches was “great,” there was “immediate danger,” a “grave” concern, and it was simply “necessary.” But, “neither the Supreme Court nor our court has ever approved of an administrative search for such pedestrian concerns” as tire chalking or parking. Id. at *20.

What Does It Mean

At bottom, the analytic difference between the majority and the dissent is reasonably well captured by each respective side. According to the majority “[m]uch of the dissenting opinion appears grounded in the belief that the entire administrative search doctrine is an affront to the original meaning of the Fourth Amendment.” Id. at *11. According to the dissent, “we risk swallowing the protections of the Fourth Amendment within its exception.” Id. at *18.

Both concerns seem right. The issue of tire-chalking nicely tees up a problem of the Supreme Court’s own making – proper application of the administrative search exception to the warrant requirement can look like it is in the eye of the beholder. As this case reveals, the proper application of the doctrine turns on slippery distinctions.

For example, the Court describes the critical distinction here as between “ensuring ‘[roadway] safety’” (wherein it is okay to search cars without suspicion) and “general crime control” (wherein such searches are unconstitutional). Id. at *4. But the distinction between these two principles is uncertain at best. The drug search checkpoint in Edmond might have survived this level of barely-scrutiny if the city there had more effectively claimed to be looking for drug trafficking on the roadways or drivers under the influence of drugs.

Meanwhile an analogous quasi-legal dispute is firmly established in the circuit courts of appeal. The Ninth Circuit imagines a parade of horrible results if the city is not allowed to chalk tires: “emergency vehicles [unable] to navigate city streets,” blocked fire hydrants, and “greater safety risks to pedestrians, bicyclists, and drivers” as a result of “drivers searching for spots [who] are also distracted.” Verdun at *2. But last year the Sixth Circuit bluntly held that “municipal parking plainly does not ‘pose[ ] a clear and significant risk to the public welfare.’” Taylor v. City of Saginaw, Michigan, 11 F.4th 483, 488 (6th Cir. 2021). As a result, we may soon see the Supreme Court weighing the constitutional implications of chalk that “rubs off within a few tire rotations.” Verdun at *2.

Police liability for fabricating evidence

Caldwell v. City & Cty. of S.F., No. 16-15473, 2018 U.S. App. LEXIS 12335 (9th Cir. May 11, 2018)

Mr. Caldwell spent nearly 20 years in prison for a crime that evidence later showed he did not commit. He sued the police department and individual officers for fabricating evidence against him during the investigation. Specifically, he argued that one sergeant deliberately engineered a “show-up” in order to manufacture a false identification against him, and falsified an incriminating statement against him. The sergeant and the plaintiff had a history: plaintiff had previously filed a complaint against him, during which the sergeant admitted that he had told the plaintiff that “Something’s going to happen to you because sooner or later I’m going to catch you with a gun and you and I are going to have it out. I’m going to kill you. Next time we’re going to get the drop on you.” Id. at *6. The district court agreed that claims of fabricated evidence presented a triable issue of fact, but granted summary judgment on the premise that the prosecutor’s charging decision “broke the chain of causation between the fabricated evidence and Caldwell’s injury.” Id. at *13. The Ninth Circuit reversed.

It began with the proposition that “there is a clearly established constitutional due process right not to be subject to criminal charges on the basis of false evidence that was deliberately fabricated by the government.” Id. (citing Devereaux v. Abbey, 263 F.3d 1070, 1074 (9th Cir. 2001) (en banc)). It held that “if a plaintiff establishes that officers either presented false evidence to or withheld crucial information from the prosecutor, the plaintiff overcomes the presumption of prosecutorial independence and the analysis reverts back to a normal causation question.” Id.at *25.

The lesson for us criminal practitioners: if an investigating officer gets caught creating false evidence against our client – including “just” attributing incriminating statements to him that were never said – the client has a recognized cause of action for violation of civil rights.

Unhoused person’s property entitled to Fourth-Amendment protection from warrantless seizure and destruction.

Recchia v. City of L.A. Dep’t of Animal Servs., No. 13-57002, 2018 U.S. App. LEXIS 11364 (9th Cir. May 1, 2017)

Plaintiff Recchia was homeless but not alone. He owned twenty birds that he kept in boxes and cages along with him on the streets of L.A. (For the record, 18 pigeons, one crow and one seagull rounded out this aviary.) An Animal Control officer discovered the birds. Some of them were in dire physical condition, although Recchia maintained that he had rescued them in even worse shape. Animal Control confiscated the birds. They were euthanized before a hearing was held, on the rationale that they were diseased. Recchia sued, alleging Fourth and Fourteenth Amendment violations under § 1983. The district court granted the City summary judgment; the Ninth Circuit reversed. “The Fourth Amendment protects, among other things, a person’s right not to have their property unreasonably seized by the government. Homeless people living on the street enjoy the protection of the Fourth Amendment.” Id. at *10 (citations omitted). And even more specifically, “[t]he seizure of a homeless person’s property implicates important Fourth Amendment concerns.” Id. The Court held that a question of fact existed as to whether exigency justified the warrantless seizure and destruction of the birds, and remanded to the district court accordingly.

Opiate withdrawal in custody.

Gordon v. Cty. of Orange, No. 16-56005, 2018 U.S. App. LEXIS 10977 (9th Cir. April 30, 2018)

Withdrawal from opiates while in custody is a torture that, unfortunately, many of our clients experience. This case dealt with the jail’s liability when that withdrawal process goes effectively untreated. An arrestee, Gordon, was booked into the Men’s Central Jail in Orange County on a heroin charge. He disclosed to an intake nurse that he had a three-gram-a-day habit. The nurses used a withdrawal-monitoring protocol that was suited to alcohol withdrawal, rather than a specialized protocol for opiate withdrawal. The patient died the next day. The estate sued for wrongful death, including a § 1983 claim for deliberate indifference in providing adequate medical care. The district court granted summary judgment in favor of the defendants, reasoning that the plaintiffs could not show subjective deliberate indifference on the part of the defendants. The Ninth Circuit reversed, holding that “deliberate indifference” was an objective standard in this context. Id. at *9. “[T]he plaintiff must prove more than negligence but less than subjective intent – something akin to reckless disregard,” the Court concluded Id.

This case also serves as a reminder that our addiction-suffering clients are entitled to medical care to help manage their withdrawal, and that the consequences can be tragic when that does not occur.

Sheriff Arpaio was “final policymaker” under Arizona law.

United States v. Cty. of Maricopa, No. 15-17558, 2018 U.S. App. LEXIS 11865 (9th Cir., May 7, 2018)

While not directly applicable to criminal practice, this case represents the next litigation chapter surrounding Sheriff Arpaio’s racial-profiling program in Maricopa County, Arizona. The Ninth Circuit held that under Arizona statute and circuit precedent, the Sheriff was a “final policy maker” for purposes of § 1983 liability. It next held that under Title VI and 34 U.S.C. § 12601, the County could be held liable for his unconstitutional policies. Id. at *8. While an entity cannot be held vicariously liable on a respondeat superior theory, it can be held liable under Title VI if an official with power to take corrective measures is “deliberately indifferent to known acts of discrimination” – which isn’t exactly a stretch in Maricopa County.

McKenzie Scott PC: We Fight for the Little Guy (through fearless trial advocacy, aggressive motions practice, and unwavering client loyalty – that’s how we win).

“The Cops Beat the Crap Out of Me” and Preclusion of Civil Suits by Criminal Guilty Pleas

Byrd v. Phoenix Police Dep’t, No. 16-16152, 2018 U.S. App. LEXIS 6575 (9th Cir., March 16, 2018).

This case teaches two things: 1) pleading guilty to a drug crime does not preclude an excessive-force civil suit; and 2) alleging that “the cops beat the crap out of me ” states a cognizable cause of action.

First, the fun part. Plaintiff Byrd appealed the dismissal of his § 1983 claim. He alleged that police stopped him, searched him, and then “beat the crap out of him. ” Id. at *3. The district court dismissed the complaint, reasoning that this language was “too vague and conclusory ” to support a claim. The Ninth Circuit reversed, holding that this “use of a colloquial, shorthand phrase makes plain that Byrd is alleging that the officers’ use of force was unreasonably excessive. ” It observed that “this conclusion is reinforced by his allegations about the resulting injuries. ” Id. at *8. Bottom line: “the cops beat the crap out of me” is a perfectly apt legal description for excessive force.

But perhaps even more importantly for us criminal practitioners, the opinion also addressed the extent to which civil claims survive criminal guilty pleas, known as the Heck doctrine. See Heck v. Humphrey, 512 U.S. 477 (1994). Heck held that § 1983 civil claims are precluded by an earlier criminal conviction if “a judgment in favor of the plaintiff would necessarily imply the invalidity of his conviction or sentence.” 512 U.S. at 487. But here, because the excessive force claim would not invalidate his guilty plea to drug possession, the Court held that the claims were not Heck-barred. It distinguished cases where the convictions, often possession crimes, were challenged as fruit of an illegal search. *12-13. The point for criminal practitioners is that clients who are interested in suing can still have their day in (civil) court, depending on how the criminal case is resolved.

Police drawing gun on unarmed, compliant suspect is excessive force under the Fourth Amendment

Thompson v. Rahr, No. 16-35301, 2018 U.S. App. LEXIS 6191 (9th Cir. Mar. 13, 2018)

Plaintiff alleged that during a traffic stop, an officer pointed a gun at his head and threatened to kill him. Plaintiff was compliant and unarmed, though a firearm had been discovered in the car earlier. The Ninth Circuit held that under § 1983, “pointing a loaded gun at the suspect’s head in these circumstances constitutes excessive force under the Fourth Amendment,” but it held that qualified immunity protected the officers, as “th[is] law was not clearly established at the time of the traffic stop. ” The Court distinguished prior cases holding that pointing a weapon at unarmed suspects constituted excessive force (Robinson v. Solano Cty., 278 F.3d 1007 (9th Cir. 2002) (en banc), and Hopkins v. Bonvicino, 573 F.3d 752 (9th Cir. 2009)) because “neither of those cases involved a felony traffic stop with a firearm in proximity, nor did they feature facts sufficiently similar to the pattern we address here to put the constitutional question beyond debate as required to defeat qualified immunity. ” Id. *13 (emphasis in original). The fact remains that pointing loaded weapons at compliant suspects is excessive force under the Fourth Amendment.

Unconstitutional CPS action and “judicial deception”

Keates v. Koile, No.16-16568 (9th Cir., March 6, 2018)

Another case regarding removal of children from the home without a warrant or emergency. I include these cases because, sadly, it is an issue that can affect many of our clients – and because of the discussion of “judicial deception” described below.

The Court affirmed that “[o]ur cases hold that the Fourteenth, First, and Fourth Amendments provide a guarantee that parents will not be separated from their children without due process of law except in emergencies.” Id. at 14. An official “cannot seize children suspected of being abused or neglected unless reasonable avenues of investigation are first pursued. ” Id. at 15. Here, CPS had taken a teenage girl from her mother at the hospital, after the girl had reported vague thoughts of suicide in the past and the mother was somewhat uncooperative at the hospital. Because there was no threat of imminent harm, no reasonable investigation, and no court order, plaintiffs stated a claim for violation of their constitutional rights.

The opinion also contains a helpful discussion of the doctrine of “judicial deception.” In order to prevail on a judicial-deception claim, a plaintiff must prove that “(1) the defendant official deliberately fabricated evidence and (2) the deliberate fabrication caused the plaintiff’s deprivation of liberty. ” Spencer v. Peters, 857 F.3d 789, 798 (9th Cir. 2017). If a state official “submitted an affidavit that contained statements he knew to be false or would have known were false had he not recklessly disregarded the truth, . . . he cannot be said to have acted in a reasonable manner, and the shield of qualified immunity is lost. ” Chism v. Washington State, 661 F.3d 380, 393 (9th Cir. 2011). Though the plaintiff did not prevail on that claim here, it is worth bearing in mind that when our criminal defendants are victims of “judicial deception,” they have a cause of action under Ninth Circuit law. Food for thought for those cases when an overzealous affiant misstates facts in an arrest or search warrant.

Civil commitment cannot be tantamount to criminal punishment

King v. Cty. of L.A., No. 14-55320, 2018 U.S. App. LEXIS 6045, (9th Cir. Mar. 12, 2018).

The panel held that under § 1983, Plaintiff’s incarceration at the Los Angeles County jail for almost eight years as a civil detainee stated a claim for violation of Substantive Due Process. It noted that under the law, civil-commitment defendants cannot be subjected to conditions that amount to punishment. Here, the confinement was virtually indistinguishable from criminal pre-trial confinement, and was not less restrictive than necessary. It also held that the Sheriff could be sued in his official capacity but not individually, because “the record did not establish that Sheriff Baca supervised the day-to-day operations of the correctional facility, that he was personally involved in any constitutional deprivation plaintiff may have suffered, or the requisite causal connection for liability in his individual capacity.”

McKenzie Scott PC: We Fight for the Little Guy (through fearless trial advocacy, aggressive motions practice, and unwavering client loyalty – that’s how we win).