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It’s sadly a common fact pattern: a member of the community is involved in an altercation with the police; the police use excessive force; but it’s the community member who gets charged with a criminal offense. As we’ve reported earlier here, a related criminal case presents a sticky wicket for litigants hoping to see civil justice someday. See generally Heck v. Humphrey, 512 U.S. 477 (1994).

Heck held that when a § 1983 claim, if successful, would render a conviction or sentence invalid, then “a § 1983 plaintiff must prove that the conviction or sentence has been reversed on direct appeal, expunged by executive order, declared invalid by a state tribunal authorized to make such determination, or called into question by a federal court’s issuance of a writ of habeas corpus. . . . A claim for damages bearing that relationship to a conviction or sentence that has not been so invalidated is not cognizable under § 1983.” Id. at 486 – 87. The rationale is that “civil tort actions are not appropriate vehicles for challenging the validity of outstanding criminal judgments.” Id. at 486. Thus under Heck, a section 1983 action is barred if success in the action would “necessarily require the plaintiff to prove the unlawfulness of his conviction or confinement.” The question becomes, then, whether a § 1983 necessarily undermines the lawfulness of the original conviction.

Last summer, the en banc Ninth Circuit provided some answers to that question in Lemos v. Cnty. of Sonoma, 40 F.4th 1002, 1003 (9th Cir. 2022) (en banc). In Lemos, police allegedly used excessive force against a woman, then charged her with a resisting-arrest misdemeanor. (Public defenders in the crowd – does any of this sound familiar?) A jury convicted her of a misdemeanor resisting charge only. She brought a civil-rights suit afterwards, which (because of the misdo conviction) the trial court dismissed under Heck. The en banc court reversed. Because Lemos’s § 1983 claim was based on one particular action by police, and because her criminal conviction (based on the jury instructions and evidence at trial) could be sustained on other acts that did not necessarily conflict with her claims, Lemos’s case was not Heck-barred. Id. at 1007.

But what about a no-contest plea that is held in abeyance and later dismissed, like with a deferred-prosecution agreement? Heck barred? Again, heck no.

In Duarte v. City of Stockton, 60 F.4th 566, 571 (9th Cir. 2023), the Ninth Circuit reiterated that “the Heck bar . . . requires an actual judgment of conviction, not its functional equivalent.” “Because the charges against Duarte were dismissed, he was never convicted” the Court reasoned. Id. “And because there is no conviction that Duarte’s § 1983 claims would impugn,” it continued, “Heck is inapplicable.” Id. See also Martin v. City of Boise, 920 F.3d 584, 613 (9th Cir. 2019) (“Where there is no ‘conviction or sentence’ that may be undermined by a grant of relief to the plaintiffs, the Heck doctrine has no application.”).

The upshot is that in California, for example, Penal Code § 1000 diversion does not result in a conviction cognizable under Heck. And as long as a dismissal results, deferred or even withdrawn guilty pleas should not pose any barrier to a subsequent civil suit.

Multiple dwellings and probable cause for search warrants

Blight v. City of Manteca,
944 F.3d 1061 (9th Cir. 2019)

Manteca, California! Nestled about halfway between Modesto and Stockton off of Highway 99, it is the hometown of former NBA point guard and coach Scott Brooks – an undrafted, 5’11″ bundle of grit and inspiration. But perhaps more importantly for our purposes here, Manteca is also the setting for a good reminder about search-warrant law and probable cause.

Blight v. City of Manteca arose because police officers, in executing a search warrant for a marijuana grow, also searched a separate mobile home located on the lot. The mobile-home resident was not the subject of the warrant, nor even Scott Brooks. It was an elderly woman who was plainly not growing pot in her trailer. She was not impressed, and later sued. Sadly, the Ninth Circuit upheld summary judgment in favor of the police, holding that there was probable cause to search the mobile home. The general rule is helpful as far as it goes: “when a structure contains two residences or two residences share a lot, there must be probable cause to search each.” Id. at 1066-67 (citing United States v. Whitten, 706 F.2d 1000, 1008 (9th Cir. 1983), overruled on other grounds by United States v. Perez, 116 F.3d 840 (9th Cir. 1997) (en banc)). But, “a warrant is valid when it authorizes the search of a street address with several dwellings if the defendants are in control of the whole premises, if the dwellings are occupied in common, or if the entire property is suspect.” Id. The Court held that under the facts provided to the magistrate, “there was a substantial basis for the issuing judge to believe [the marijuana grower] was in control of the whole premises.” Id. at 1067.

Another helpful tidbit here is the reminder that “[o]fficer authority to search property listed in a search warrant is not unlimited.” See Mena v. City of Simi Valley, 226 F.3d 1031, 1038 (9th Cir. 2000). If officers know (or should know) that they are searching a residence that was erroneously included in a search warrant, then they must stop the search as soon as they apprehend that risk. Id. This wasn’t one of those cases either, the Court held, but we should keep this in mind as a backstop against plain-view mischief. Even if the police initially believe they have a right to be somewhere, they have to shut things down as soon as they learn they are in the wrong place.

Lawsuit by wrongfully convicted defendants not barred by Heck doctrine.

Roberts v. City of Fairbanks,
947 F.3d 1191, 1193-94 (9th Cir. 2020)

Roberts involves a wrongful conviction, a seemingly extortionate liability waiver, and the question of whether the criminal defendants can sue thereafter. The case arose from a group beating on the streets of Fairbanks, resulting in a 15-year-old boy’s death. Three young men were convicted of the murder. Several years later, a different man confessed to the crime, implicating entirely different co-conspirators. Post-conviction hearings ensued, corroborating the confession and undermining the thin evidence that originally convicted the first group of men.

After the hearing, the judge announced that his decision wouldn’t issue for another 6-8 months. And, perhaps seeing the writing on the wall, the prosecutors promised that they would appeal an adverse decision all the way to the state Supreme Court. Id. at 1195.

But then the prosecutors offered a deal: they would dismiss all charges, but only if all four defendants agreed not to sue and signed releases of liability. The accused, anxious to get out of jail, reluctantly agreed. Id.

But once they got out of jail – God bless ‘em – they sued anyway! They sought monetary damages and a declaratory judgment that the settlement agreement was unenforceable. The district court held that the claims were barred by the Heck doctrine, which holds that a criminal conviction precludes a related civil suit if success on the civil claim would necessarily undermine the validity of the criminal conviction. Thankfully, the Ninth Circuit reversed. It held that because the trial court had vacated the convictions, there was no Heck bar to a subsequent civil case, and it remanded to consider the enforceability of the liability release in the settlement agreement.

Gang evidence “almost always prejudicial.”

Gilmore v. Lockard,
936 F.3d 857, 859 (9th Cir. 2019)

In Gilmore v. Lockard, 936 F.3d 857, 859 (9th Cir. 2019), the Ninth Circuit reversed a defense verdict in favor of prison officials who, a prisoner alleged, used excessive force against him and then delayed his access to medical care. Though the case was reversed on procedural grounds, the Ninth gave one of those “don’t-fuck-up-the-retrial-too” rulings, although it described it more circumspectly as “for the guidance of the trial court on remand.” Id. (citing United States v. Mayans, 17 F.3d 1174, 1184 (9th Cir. 1994)). This guidance was on the admissibility of gang evidence at trial. “Given that ‘evidence relating to gang involvement will almost always be prejudicial,’” the Court held, “the minimal probative value of [that] testimony is easily outweighed by the tremendous risk of unfair prejudice . . . and so it should be excluded if the case is retried.” Id. (citing Kennedy v. Lockyer, 379 F.3d 1041, 1055 (9th Cir. 2004)) (emphasis provided). While this authority won’t help us in those RICO / VICAR / gang-enhancement cases where gang ties are basically an element of the offense, this case law is pretty strong medicine for those cases where gang membership is a more tangential issue. Fed. R. Evid. 403 still seems to have teeth when it comes to gang evidence, in both civil and criminal cases.

Police protecting their own and the “state-created danger” doctrine.

Martinez v. City of Clovis,
943 F.3d 1260, 1271 (9th Cir. 2019)

This is purely a tort case, though it may be of interest because it holds that when the police endanger a domestic-violence victim by trying to protect one of their own, they can be liable under Section 1983 for civil damages.

In Martinez v. City of Clovis, 943 F.3d 1260, 1271 (9th Cir. 2019), a Clovis police officer repeatedly subjected his girlfriend to domestic violence. His fellow Clovis officers did little to stop the abuse. In fact, taking the plaintiff’s facts at face value, they “praise[d] [the] abuser in the abuser’s presence after the abuser ha[d] been protected from arrest, in a manner that [arguably] communicate[d] to the abuser that the abuser may continue abusing the victim with impunity.” Id.at 1276-77. Predictably, the officer continued the abuse.

The Ninth Circuit held that these facts state a constitutional claim against the City, which is notable because generally, government entities are not liable for their omissions in failing to stop crime from occurring. “The general rule is that a state is not liable for its omissions” and the Due Process Clause does not “impose a duty on the state to protect individuals from third parties.” Patel v. Kent Sch. Dist., 648 F.3d 965, 971 (9th Cir. 2011). But Martinez reaffirmed that “the state may be constitutionally required to protect a plaintiff that it ‘affirmatively places . . . in danger by acting with ‘deliberate indifference’ to a ‘known or obvious danger.’” The elements for a state-created danger tort are: 1) the officers’ affirmative actions created or exposed her to an actual, particularized danger that she would not otherwise have faced; 2) the injury she suffered was foreseeable; and 3) the officers were deliberately indifferent to the known danger. Martinez, 943 F.3d at 1271. See also Hernandez v. City of San Jose, 897 F.3d 1125, 1133 (9th Cir. 2018).

The Court concluded that “[w]e hold today that the state-created danger doctrine applies when an officer reveals a domestic violence complaint made in confidence to an abuser while simultaneously making disparaging comments about the victim in a manner that reasonably emboldens the abuser to continue abusing the victim with impunity. Similarly, we hold that the state-created danger doctrine applies when an officer praises an abuser in the abuser’s presence after the abuser has been protected from arrest, in a manner that communicates to the abuser that the abuser may continue abusing the victim with impunity. Going forward, the law in this circuit will be clearly established that such conduct is unconstitutional.” Martinez v. . City of Clovis, 943 F.3d 1260, 1276-77 (9th Cir. 2019).

Discrimination in the jury selection process is an ongoing reality within the American criminal justice system, but measures have been taken for over a century to address the issue at both the national and state levels.

The Fourteenth and Fifteenth Amendments were ratified in 1868 and 1870, respectively, guaranteeing Black men the right to vote and serve on juries. These amendments also provided legal protections against racial discrimination, and the Civil Rights Act of 1875 officially outlawed race-based discrimination in jury selection.

But through the use of preemptory challenges – which allow attorneys to excuse jurors without showing cause – systemic bias in the jury selection process has remained widespread.

In 2020, California Assembly Bill 3070 (AB 3070) was passed in an effort to narrow the scope of qualified preemptory challenges. AB 3070 amended the Code of Civil Procedure to disallow preemptory challenges based on:

• A prospective juror’s race, ethnicity, gender, gender identity, sexual orientation, national origin, or religious affiliation, or the perceived membership of the prospective juror in any of those groups;
• A prospective juror’s open expression of a distrust of or having had a negative experience with law enforcement or the criminal legal system;
• A prospective juror’s admission of having a close relationship with people who have been stopped, arrested, or convicted of a crime;
• A prospective juror who is not a “native English” speaker.

California AB 3070 was supported by civil rights advocates and hailed as critical legislation to help reduce racial discrimination in the jury selection process. However, while the bill essentially protected prospective jurors who express distrust or a negative experience with law enforcement officials, if those sentiments were conveyed outside of the jury selection process – such as in an artist’s rap lyrics – they could still be used as evidence against that individual in a criminal case.

And, as Erika D. Smith recently noted in a Los Angeles Times column, using words as evidence against defendants has been a common practice utilized by aggressive prosecutors hoping to win convictions.

In one case from almost a decade ago, prosecutor’s introduced lyrics written by Alex Medina, an aspiring rapper who had been charged with first-degree murder. Prosecutors argued that Medina’s lyrics should be treated not at as creative expressions, but as “journals” of his real-life “gangsta” behavior, according to Smith.

Medina was convicted, and Smith confirmed in the L.A. Times column that since that time “dozens of other rappers all over the country have had their lyrics used against them… with prosecutors and cops mining old songs and videos in search of supposed proof of gang activity.”

In fact, two platinum-selling rappers – Young Thug and Gunna – are currently facing gang-related racketeering charges in Georgia after their lyrics and music videos were submitted as evidence.

But a new bill – AB 2799 – makes California the first state to restrict how forms of creative expression can be used as evidence in criminal trials.

What is the Decriminalizing Artistic Expression Act or California AB 2799?

From books to music, forms of creative expression have long been submitted as evidence against criminal defendants. And rap lyrics in particular have been disproportionately used against men of color – often Black men – in an effort to secure convictions.

Assembly member Reggie Jones-Sawyer, the Los Angeles Democrat who authored AB 2799, said that although he was initially unaware of the scope of the problem, when it was brought to his attention by affected constituents, he was “appalled.”

“They were the first ones to really kind of enlighten me,” Jones-Sawyer said.

Accordingly, AB 2799 was drafted to limit the ways in which an artist’s lyrics can be used against them as evidence in criminal cases.

AB 2799 couldn’t ban the use of lyrics outright, but it establishes a presumption that such creative expressions have minimal value as evidence.

“California prosecutors will now need to show a judge that lyrics were written around the time of the crime, have some specific similarity to the crime, or depict ‘factual details’ about the crime that are not known to the public,” the Los Angeles Times reported.

Specifically, the bill:

• Requires a court, in a criminal proceeding where a party seeks to admit as evidence a form of creative expression, to consider specified factors when balancing the probative value of that evidence against the substantial danger of undue prejudice.
• Defines “creative expression” as the expression or application of creativity or imagination in the production or arrangement of forms, sounds, words, movements, or symbols, as specified.
• Requires a court, in balancing the probative value of a creative expression against the substantial danger of undue prejudice, to first consider that the probative value of the creative expression for its literal truth is minimal unless that expression meets specified conditions.
• Requires a court to consider that undue prejudice includes the possibility that the trier of fact will treat the creative expression as evidence of the defendant’s propensity for violence or criminal disposition, as well as the possibility that the evidence will inject racial bias into the proceedings.
• Requires the court to consider, if proffered and relevant to the issues in the case, credible testimony on the genre of creative expression as to the context of the expression, research demonstrating that the introduction of a particular type of expression introduces racial bias into the proceedings, and evidence to rebut such research or testimony.
• Requires a court to determine the admissibility of a form of creative expression in a hearing outside the presence and hearing of the jury, and state on the record the court’s ruling and reasoning.

The California State Assembly and Senate unanimously approved the bill in August 2022, and Governor Newsom signed it into law in September. Many high-profile rap and hip-hop artists attended the virtual ceremony, including:

• Meek Mill
• Killer Mike
• TG
• Ty Dolla Sign
• Too Short
• E-40
• Tyga

The Decriminalizing Artistic Expression Act officially took effect on January 1 of this year.

Federal RAP Bill May Provide Additional Protections for Creative Expression

A federal bill similar to California AB 2799 known as the Restoring Artistic Protection (RAP) Act is working its way through the U.S. House of Representatives. Georgia Representative Hank Johnson and New York Representative Jamaal Bowman are reportedly spearheading the legislation.

The RAP Act would add a presumption to the Federal Rules of Evidence limiting the admissibility of evidence related to an artist’s creative or artistic expression and narrowing how that expression could be used against someone in court.

“People make the connection between a rapper and someone who is in a gang, a drug dealer, someone who is violent. Those are the kinds of things that rappers talk about in their raps. Merely saying that someone is a rapper evokes negative perceptions and brings out prejudices. So when you actually introduce the lyrics that the rapper has written, and use those lyrics as evidence against them, that seals the deal,” Representative Johnson told the Los Angeles Times.

McKenzie Scott PC is a top-rated San Diego civil rights and criminal defense firm founded by Michele Akemi McKenzie and Timothy A. Scott – two former public defenders dedicated to “fighting for the little guy.”

Even though Korematsu v. United States, 323 U.S. 214 (1944)-which condoned the forced relocation of all persons of Japanese ancestry in certain West coast zones during World War II pursuant to Executive Order 9066-was broadly criticized for decades within the legal profession and by American society at large, it was not expressly overruled by the U.S. Supreme Court for 74 years.

This is true even though in 1988 President Reagan signed the Civil Liberties Act, offering a formal apology and some compensation for those who were interned pursuant to Executive Order 9066 during the war.

It wasn’t until 2018 in Trump v. Hawaii, 138 S.Ct. 2392, that the Supreme Court finally described Executive Order 9066 as “morally repugnant.” The Court made clear that the “forcible relocation of U.S. citizens to concentration camps, solely and explicitly on the basis of race, is objectively unlawful and outside the scope of Presidential authority.” Trump, 138 S. Ct. at 2423.

The Court formally acknowledged: “Korematsu was gravely wrong the day it was decided, has been overruled in the court of history, and-to be clear-‘has no place in law under the Constitution.’” Id. (citation omitted).

Taylor v. Cty. of Pima,
2019 U.S. App. LEXIS 1545 (9th Cir., January 17, 2019)

This case addresses the scenario where a defendant was pretty obviously wrongfully convicted, but then cuts a time-served deal to get out of custody. Can he still seek civil justice? Not to spoil the ending, but the dissenting opinion opens with the line: “This decision magnifies an already tragic injustice.” Here’s what happened.

In 1972, a jury convicted Mr. Taylor of 28 counts of murder on the theory that he had intentionally started a hotel fire. Forty fucking years later, in 2012, better science revealed that arson did not in fact cause the deadly blaze. The prosecutor purported to contest the new evidence, but was apparently shaken enough that it offered Taylor a “no contest” plea to the same charge in 2013, and an agreement to be released from prison immediately. Taylor, quite understandably, accepted. The 1972 conviction was vacated.

Taylor later sued the prosecuting agencies under 42 U.S.C. § 1983, alleging violations of due process and the right to a fair trial. He alleged some serious misconduct and racial discrimination as part of the vacated 1972 conviction. Could he recover damages? The answer, sadly, is no. Had Taylor not pleaded no-contest in 2013, then he certainly could have challenged the constitutional violations that occurred in the 1972 conviction. But because he agreed to a “time-served” sentence in 2013, then “a matter of law, the 2013 conviction caused the entire period of his incarceration” and there was no wrongful incarceration that was imposed independent of that plea. Id. at *12. This sleight-of-hand is consistent with earlier Ninth Circuit law, as well as persuasive authority in other Circuits. See e.g. Jackson v. Barnes, 749 F.3d 755, 762 (9th Cir. 2014) (inmate “not entitled to compensatory damages for any time he spent in prison” because he was “not imprisoned for any additional time as a result of his first, illegal conviction”); Olsen v. Correiro, 189 F.3d 52, 55 (1st Cir. 1999) (“Olsen’s valid manslaughter conviction and [time-served] sentence are the sole legal cause of his incarceration” despite earlier overturned conviction); Poventud v. City of New York, 750 F.3d 121 (2d Cir. 2014) (en banc) (same). The majority assures readers that “[w]e take no pleasure in reaching this unfortunate result, given Taylor’s serious allegations of unconstitutional actions by the County. But we cannot disregard the limitations imposed by Congress and the Supreme Court on the scope of § 1983 actions.” Id. at * 15.

The dissent points out the injustice in this result, making the common-sense observation that Taylor pleaded no-contest in 2013 because “his only alternative was to stay in prison and wait for his petition for collateral relief to wend its way through the courts, a process that could take years.” The dissent found the authority discussed above to be distinguishable, because there was no doubt that the wrongful conviction is what made “time-served” forty years long. Nevertheless, Taylor is the law for defendants resolving their cases with new pleas.

So what to do in this situation? One option is to not plead to a new charge at all – but as the dissent points out, this is a tough sell for a client anxious to get out of custody. A different tactic might be to plead, but to a fixed term of custody that is less than the time already served. That way, the record is clear that whatever difference exists between the sentence and the time actually served was the result of the first, wrongful conviction. Either way, Taylor is a must-read for any client contemplating an expedient deal after uncovering a wrongful conviction.

At McKenzie Scott PC, we fight for the little guy. As a top-rated San Diego-based criminal defense and civil rights firm serving clients locally and across the nation, we are dedicated to providing community justice. Founded by Michele Akemi McKenzie and Timothy A. Scott – two former public defenders – we offer you a team of proven and experienced trial litigators

Sandoval v. Cty. of Sonoma,
2018 U.S. App. LEXIS 36147 (9th Cir. Dec. 21, 2018)

California Vehicle Code § 14602.6(a)(1) provides that a peace officer may impound a vehicle for 30 days if the vehicle’s driver has never been issued a driver’s license. Local law-enforcement officials carried out this job enthusiastically, even for persons with out-of-state licenses, and then pointed to the statute to justify the 30-day impounds. But for Fourth Amendment purposes, Cool Hand Luke had it right: “Saying it’s your job don’t make it right, boss.”

Two drivers sued the municipalities under, inter alia, 42 U.S.C. § 1983, arguing that the impounds violated the Fourth Amendment. The Ninth Circuit agreed, upholding the district court’s ruling that they were unconstitutional seizures. It rejected the government’s argument that the “community caretaking” exception justified their actions, because “this exception . . . turns on the facts and circumstances of each case” and “the community caretaking exception does not categorically permit government officials to impound private property simply because state law does.” Id. at *12 (citing Miranda v. City of Cornelius, 429 F.3d 858, 864 (9th Cir. 2005).

Moreover, even if the impound was initially permissible, “a seizure is justified under the Fourth Amendment only to the extent that the government’s justification holds force. Thereafter, the government must cease the seizure or secure a new justification.” Id. at *14 (quoting Brewster v. Beck, 859 F.3d 1194, 1196 (9th Cir. 2017)). This duration-of-seizure inquiry is an important wrinkle to remember for cases in which our client’s property is initially seized and held, but only later searched when the government finally gets around to it. An unjustifiably long seizure provides another argument for suppression, independent of its initial legality.

Finally, Sandoval is a helpful reminder that the government’s reliance on a local statute (or federal statute for that matter) does not control whether a seizure is constitutionally sound. Remember Cool Hand Luke–doing your job under state law don’t always make it right under the federal constitution–when dealing with searches and seizures purportedly justified by statute or other local regulation. (Also remember Cool Hand Luke when deciding upon your movie night selection–what a great film for the fight-the-power nonconformist in all of us …)

McKenzie Scott PC is a San Diego-based criminal defense and civil rights firm that “fights for the little guy.” Founded by Michele Akemi McKenzie and Timothy A. Scott – two former public defenders – our team of experienced trial litigators is dedicated to providing community justice.

Whalen v. McMullen, 2018 U.S. App. LEXIS 30686 (9th Cir., October 30, 2018).

“And in the city it’s a pity ’cause we just can’t hide / Tinted windows don’t mean nothin’, they know who’s inside.”

Run-D.M.C., It’s Tricky, Raising Hell (Profile, 1986).

A state fraud investigator wanted to see if a social-security claimant was telling the truth – presumably because fraud and trickery is bad. So he warrantlessly entered the suspect’s house. Through fraud and trickery.

Specifically, the officer told the homeowner that he was investigating an identity-theft ring, and that the homeowner’s name had come up “written on a piece of paper.” Id. at *6. He assured her that she was not a suspect nor in danger of having her identity compromised, but that he was trying to gather information. Id. The whole thing was a lie – there was no identity-theft investigation. The homeowner allowed the officer inside. The investigator recorded the encounter with concealed body cameras.

The Ninth Circuit held that this was an illegal search.

It began with a helpful distillation of two distinct Fourth Amendment paradigms: the first, a property-based theory, “occurs when a government agent ‘obtains information by physically intruding on a constitutionally protected area.’” Id. at *13 (quoting United States v. Jones, 565 U.S. 400, 406 n.3, (2012)). The second, a privacy-based claim, occurs when government action infringes upon a “reasonable expectation of privacy,” as described in Katz v. United States, 389 U.S. 347, 360 (1967) (Harlan, J., concurring). Importantly, “when the government ‘physically occupie[s] private property for the purpose of obtaining information,’ a Fourth Amendment search occurs, regardless whether the intrusion violated any reasonable expectation of privacy. Only where the search did not involve a physical trespass do courts need to consult Katz’s reasonable-expectation-of-privacy test.” Lyall v. City of L.A., 807 F.3d 1178, 1186 (9th Cir. 2015). (This is a powerful legal tool when law enforcement commits trespass – many a suppression motion has fallen short on “expectation-of-privacy” grounds.)

Employing this framework to a search of the home, the Court found that a search occurred. And it held that the homeowner did not validly consent to the entry. Unlike a classic undercover operation, the Court explained, this officer informed the homeowner that he was law enforcement, but totally misrepresented his intentions. Because this “ruse” has the effect of “invoking the private individual’s trust in his government, only to betray that trust” it was an unreasonable search, and violative of the Fourth Amendment.

While qualified immunity unfortunately protected the individual officer from tort liability, this case provides helpful Fourth Amendment analysis – and perhaps, may deter similar trickery in the future.

In a twist more closely resembling a Hollywood movie than reality, the San Francisco Police Department recently stood on the brink of employing bomb-toting robots authorized to deploy lethal force on members of the community. In late November 2022, the San Francisco Board of Supervisors voted 8 to 3 in favor of a such a policy.¹

Unsurprisingly, SFPD’s reassurances that the robots would merely carry explosives, not guns, and be used in extreme circumstances did little to allay public outcry.

All of this came about in response to California Assembly Bill 481, which went into effect in 2022 and required all local law enforcement agencies in California to inventory their military equipment², draft policies outlining their authorized uses, and submit the draft policies to local governing bodies for approval³. AB 481 was first introduced by Assembly member David Chiu, D-San Francisco, who introduced the bill as a way of “rebuilding community trust” with law enforcement⁴. “Our streets in California are not war zones, and our citizens are not enemy combatants,” he stated.⁵

Ironically, what was meant as a means of increasing transparency and mending relations between the public and police prompted SFPD-with little public input-to seek and briefly gain authorization for the use of deadly robots. SFPD currently has twelve remote-controlled robots which are typically used to survey difficult-to-reach areas or defuse bombs.⁶ SFPD’s original draft policy was silent with respect to the robots’ authorized uses. In response to that omission, Board of Supervisors member Aaron Peskin, wrote into the draft policy a prohibition against the robots using force.⁷

However, SFPD responded with its own redline-crossing out Peskin’s addition and including authorization to use the robots “as a deadly force option when risk of loss of life to members of the public or officers are imminent and outweigh any other force option available to the SFPD.”⁸ It was this iteration of the policy that surprisingly garnered a majority of votes in late November.

Public backlash was swift. Critics such as Dean Preston, who is on the Board of Supervisors and voted against the policy, stated that SFPD failed to publish the policy publicly at least 30 days prior to the vote, violating California Government Code section 7071(b).⁹ Other civil rights groups, including the ACLU, banded together with members of the public in opposition.¹⁰ In total, forty-four community groups signed a letter opposing the policy, which stated in part: “Using robots that are designed to disarm bombs to instead deliver them is a perfect example of this pattern of escalation, and of the militarization of the police force that concerns so many across the city.”¹¹ On December 5, 2022, groves of protesters showed up outside of City Hall with signs proclaiming their opposition, such as “We’ve all seen that movie …No Killer Robots.” ¹²

Within days, the Board of Supervisors voted to amend the policy to prohibit lethal use of the robots.¹³ As amended, the policy passed unanimously.¹⁴ However, the board sent the robot provision to a committee for further consideration. ¹⁵

Debate about how technology should be used in policing is not new. Ryan Calo, a professor at the University of Washington, “has long been concerned about the increasing militarization of police forces.”¹⁶ He notes that use of robots could protect both officers and suspected violent individuals. Using robots would allow officers to remain far from danger as well as negate the reason cops use force-i.e., perceived threat to officer safety.¹⁷ But, “We have to ask ourselves do we want to be in a society where police kill people with robots? It feels so deeply dehumanizing and militaristic.” ¹⁸

The debate also raises questions about legal liability and the potential for civil rights wrongful-death lawsuits. What happens if technology malfunctions and injures or kills someone? “It becomes very difficult to disentangle who is responsible. Is it the people using the technology? Is it the people that design the technology?” wonders Calo.¹⁹ And how will the courts interpret qualified immunity in the context of human-controlled robots in a civil rights claim?²⁰ How would “a reasonable officer” use lethal robots? What becomes of the “clearly established” legal standard where there’s no precedent for the use of such technology? Hopefully, we never have to find out.

—

¹ Ari Shapiro and Brianna Scott, San Francisco considers allowing law enforcement robots to use lethal force, NPR, November 28, 2022, https://www.npr.org/2022/11/28/1139523832/san-francisco-considers-allowing-law-enforcement-robots-to-use-lethal-force.

² As an aside, if you’re wondering how it is that local law enforcement agencies-including those serving K-12 schools-have military arsenals, the ACLU helpfully explains both how that is and why it is so problematic. Charlotte Lawrence and Cyrus J. O’Brien, PhD, Federal Militarization of Law Enforcement Must End, ACLU, May 12, 2021, https://www.aclu.org/news/criminal-law-reform/federal-militarization-of-law-enforcement-must-end.

³ Leah Worthington and Sue Dremann, Local law enforcement owns millions of dollars in ‘military equipment.’ A new state bill seeks to regulate all of that., RWC Pulse, December 12, 2022, https://www.rwcpulse.com/local-news/public-safety/local-law-enforcement-owns-millions-of-dollars-in-military-equipment-a-new-state-bill-seeks-to-regulate-all-of-that-6223871.

⁴ Id.

⁵ Id.

⁶ Shapiro, supra.

⁷ Id.

⁸ Id.

⁹ Ron Amadeo, San Francisco decides killer police robots aren’t such a great idea, Ars Technica, December 7, 2022, https://arstechnica.com/gadgets/2022/12/san-francisco-decides-killer-police-robots-arent-such-a-great-idea/.

¹⁰ Id.

¹¹ Id.

¹² Id.

¹³ Eduardo Medina and McKenna Oxenden, San Francisco Backtracks on Plan to Allow Police Robots to Use Deadly Force, New York Times, December 6, 2022, https://www.nytimes.com/2022/12/06/us/police-robots-san-francisco.html.

¹⁴ Id.

¹⁵ Id.

¹⁶ Shapiro, supra.

¹⁷ Id.

¹⁸ Id.

¹⁹ Id.

²⁰ Daphne Duret, What San Francisco’s Killer Robots Debate Tells Us About Policing, Marshall Project, December 10, 2022, https://www.themarshallproject.org/2022/12/10/san-francisco-killer-robots-policing-debate.