failure to protect - overview

A strange legal reality, which is somewhat different different than what common sense suggests, is that the state, including law enforcement, does not generally have a duty to protect people from harm. State actors could be said to have a job to do that, but merely doing that job poorly or in an ineffective manner will not, in general, give rise to legal liability. The classic Supreme Court case on this idea is DeShaney v. Winnebago, from 1989.

The way the courts look at it is that officers have a duty to the general public … but not to any specific person. Therefore if a specific person gets harmed through some failure of law enforcement, that’s not the basis for a lawsuit.

Safekeeping: Law enforcement does not typically have a duty to keep individuals free from danger, but there are two critical exceptions to this general rule. Photo by Maxim Hopman on Unsplash.

However, there are exceptions to this general rule when the state itself creates a dangerous condition or when the state controls the environment in which an individual is forced to remain. Under those situations, the failure to protect can violate an individual’s substantive due process rights under the Fourteenth Amendment, giving rise to a cause of action under 42 U.S.C. § 1983.

The state-created danger exception to the Deshaney rule applies when “affirmative conduct on the part of a state actor places a plaintiff in danger, and the [state actor] acts in deliberate indifference to that plaintiff's safety.” Penilla v. City of Huntington Park, 115 F.3d 707, 710 (9th Cir. 1997). The condition to which the state actor is deliberately indifferent must be “known or obvious,” meaning that liability can exist if a reasonable person should have known about the condition, even if the particular defendant did not subjectively know about it. L.W. v. Grubbs, 92 F.3d 894, 900 (9th Cir. 1996). For example, in Penilla v. City of Huntington Park, 115 F.3d 707 (9th Cir. 1997), law enforcement responded to a 911 call for a man who was seriously ill and found him in need of serious medical care, yet cancelled the call for paramedics, moved the man from his front porch back inside the house, and locked the front door. The man was found dead the following day. In Wood v. Ostrander, 879 F.2d 583 (9th Cir. 1989), police caused a woman to be stranded in a high-crime area at night, where she was raped. In each case, state action exposed the plaintiff to a risk that would not otherwise have existed.

The special relationship exception to Deshaney applies when "the State takes a person into its custody and holds him there against his will." DeShaney, 489 U.S. at 199-200. This relationship can arise from holding a person in jail (related causes of action based on confinement in prison arise under the Eighth rather than the Fourteenth Amendment), but it can also arise from foster care, as in DeShaney itself. Carlo v. City of Chino, 105 F.3d 493, 501 (9th Cir. 1997); see also Campbell v. Burt, 141 F.3d 927, 931 n.2 (9th Cir. 1998). Such a relationship also generally exists between a law enforcement officer and an arrestee in custody who is in need of immediate medical attention. Winger v. City of Garden Grove, 806 Fed. Appx. 544 (9th Cir. Mar. 18, 2020); Frausto v. Department of California Highway Patrol, 53 Cal.App.5th 973, 993 (2020). School attendance, despite being compulsory for children, usually will not trigger that “special relationship” exception to the DeShaney rule. Vernonia Sch. Dist. 47J v. Acton, 515 U.S. 646, 655 (1995) ("[W]e do not, of course, suggest that public schools as a general matter have such a degree of control over children as to give rise to a constitutional 'duty to protect.'") The plaintiff who bring a case based on failure to protect a student from problems at school will typically do so not based on the Fourteenth Amendment substantive due process right but under other provisions, such as a state-law theory of negligence or a source of liability like Title VI or Title IX of the Civil Rights Act of 1964, which prohibit discrimination based on race and gender in programs that receive federal funding.

An additional wrinkle on the failure-to-protect scenario can arise in the school setting when a school affirmatively conceals from parents information about a known risk to a student. In that situation, the school may be liable to the parents because the school, which is acting in the place of the parents, is simultaneously depriving the parents of the relevant information about the risk. Steven F. v. Anaheim Union High Sch. Dist., 112 Cal. App. 4th 904, 915 (2003), as modified on denial of reh'g (Oct. 22, 2003); Phyllis v. Superior Ct., 183 Cal. App. 3d 1193, 1197 (1986); see also Zuccaro v. Martinez Unified Sch. Dist., Case No. 16-cv-2709-EDL, 2016 U.S. Dist. LEXIS 192532, 2016 WL 10807692, at *9 (N.D. Cal. Sept. 27, 2016). Here again, the parent would pursue such a claim under a state law theory rather than under the Fourteenth Amendment.

For consultation about potential civil rights cases, call today.

Switchblades and the Second Amendment

Are switchblades a type of “arm” that is covered under the Second Amendment right to bear arms? That’s a question I never even thought to ask until reading a Union-Tribune writeup (paywalled) on a federal suit brought by an Arizona group called Knife Rights.

California law, as criminal defense attorneys in this state know, has quite a few prohibitions against various handheld weapons that are not firearms. Switchblades are among the weapons that are prohibited, along with more obscure items like “slungshots.”

All the Small Things:  If a knife has a "detent," shown being cleaned here in an image from the helpful website KnivesandTools.com, that detail can distinguish it from a "switchblade" under California law.

By the way: what’s the diff between a “switchblade” and a mere folding knife? A switchblade, in California, is a pocket knife with at least a 2-inch blade that opens automatically via a “flick of a button, pressure on the handle, flip of the wrist or other mechanical device, or is released by the weight of the blade or by any type of mechanism whatsoever.” At the same time, however, the legal definition excludes a knife that “opens with one hand utilizing thumb pressure applied solely to the blade of the knife or a thumb stud attached to the blade, provided that the knife has a detent or other mechanism that provides resistance that must be overcome in opening the blade, or that biases the blade back toward its closed position.”

Why is one kind of knife okay, and the other not? And what the heck is a “detent”?

Somebody in the Legislature probably knew at some point, no doubt aided by some lobbying from sport knife manufacturers. But the distinction seems rather slim as a mechanical feature that makes the difference between one object being okay to possess and the other being criminal.

Knife Rights argues that California’s prohibition on “switchblade” knives runs afoul of the Second Amendment because switchblade knives fall within the standard for protected “arms” set out by the United States Supreme Court’s decision in N.Y. State Rifle & Pistol Ass’n v. Bruen, 597 U.S. 1 (2022). Bruen says that such arms (as relevant here) must be in “common use” today for self defense and be used in a “course of conduct” that is covered by the plain text of the Second Amendment.

Also clear as mud. That’s law for you.

At any rate, the federal judge hearing this case agreed with the California Attorney General that there is no triable factual issue as to whether switchblades are commonly used for self-defense. To me, the question seems less simple to resolve, because as the court’s order notes, the criteria for deciding whether a weapon is “commonly used” in the sense that matters under Bruen are not entirely obvious and I think most knife users probably are not really closely scrutinizing whether their knife has a “detent” and a bias toward the closed position. As Knife Rights emphasized, switchblades are legal in most states and there are quite a few of them out in use by the public, for better or worse.

For my part, I don’t love switchblades. Or firearms, for that matter. But the question isn’t what I personally like, and it also isn’t what the California Legislature would prefer. The question is what the Constitution permits. That question will have to be taken up on appeal, at least in this case.

Premises Liability in Jail and Prison Cases

Jails and prisons can be dangerous places, and sometimes it is the facility itself that is dangerous, not simply the people inside it. Facilities can be extremely dirty, leading to infections and sickness, can contain other sorts of environmental hazards, and can have physical conditions that are dangerous, leading to inmate and detainee injuries. As climate change accelerates, the unbearable and largely unmitigated heat of these places in the summertime is also potentially an issue.

A Slippery Situation: Jails and prisons can involve dangerous premises, but litigating these issues requires showing "deliberate indifference," which is more demanding than mere negligence.  Photo by Michael Pointner on Unsplash.

However, premises liability arguments in jail and prison cases, like arguments around medical care in the same places, involve higher burdens than are at issue in the free world. It’s not enough simply to show that a condition was dangerous or that the staff were “negligent”: the standard that must be met is “deliberate indifference,” which is akin to knowing and willful blindness to the existence of a serious problem. (The requirements for meeting this standard under the Eighth Amendment for prisoners are different than those under the Fourteenth Amendment for pretrial detainees being held in jails, at least in the Ninth Circuit. The Eighth Amendment standard requires both a “subjective” and an “objective” showing of deliberate indifference, whereas the Fourteenth Amendment standard is only “objective,” meaning that it can be satisfied if a “reasonable officer” would have recognized the risk to the detainee.)

One of the most basic challenges with these types of cases will consequently be knowing enough information in the first place about who, in particular, at the jail/prison was (or should have been) aware of the dangerous condition, and when they knew (or should have known) about the condition, so that a case can survive an almost inevitable motion to dismiss that will need to be litigated before discovery can start. Bodycamera and surveillance footage may potentially be able to establish these points, but it typically won’t be available until the case reaches discovery. Therefore, in these kinds of cases, the perceptions of witnesses and, even more so, documentation of prior complaints about the dangerous condition are critical for success.

For free consultation about potential civil rights cases, call today.

How Much Force Can Be Used to Remove a Person From a Car?

A recurring theme in videos of policing is the individual who refuses a law enforcement order to get out of a car. Often, these situations end with the use of force, even when the individual in the car isn’t doing anything affirmatively threatening to the officer.

The Sharp End of the Stick: A San Diego Police canine officer prepares to use the dog against a driver who refuses to get out of a car.

Sometimes this force tends, to the casual observer, to seem unnecessary or gratuitous. But is it “excessive” as a legal matter?

It depends.

The basic framework for this kind of question, as this blog has discussed before, comes from a multi-factor test set out in the 1989 case Graham v. Connor. To oversimplify somewhat, the standard for finding force to be “excessive” is a sliding scale. More force is appropriate when an officer is responding to a more dangerous crime and set of behaviors, while less is appropriate when these factors are absent.

The “getting out of a car” scenario is a subset of a larger group of cases that have to do with law enforcement officers ordering a person to come or go from some particular area and then using force when the person doesn’t comply, with other frequently seen examples including ordering inmates out of cells, ordering individuals to exit a room or a house, and ordering protestors to disperse from some particular area.

At least in theory, the mere act of passive “noncompliance” with a law enforcement order, in itself, does not warrant the use of “significant” force. Nelson v. City of Davis, 685 F.3d 867, 881 (9th Cir. 2012); Banks v. Mortimer, 620 F.Supp.3d 902, 925 (N.D. Cal. 2022). Therefore, the use of “intermediate” forms of force under those circumstances — with “intermediate” meaning things like baton blows or pepper spray — can be “excessive.” Sometimes the use of force against nonviolent protestors can be excessive for this reason, at least as long as the protestors really are in a mode of merely passively refusing to move and that noncompliance is the only crime at issue. The infamous UC Davis pepper spray incident, which was so over-the-top that it quickly became a meme (and which led to a $1 million settlement and policy reforms) is one such example of excessive force used against passive noncompliance.

Hot Ones: This 2011 use of pepper spray against merely passively noncompliant peaceful protestors at UC Davis during the Occupy Wall Street movement became famous because of the remarkably casual approach of the officer to the use of obviously excessive force. Photo by Louise Macabitas.

But when it comes to individuals refusing to get out of vehicles, there are often other factors at play. In particular, these sorts of situations can sometimes occur in the context of traffic stops where the person in the car is suspected of having committed some other crime, up to and including a felony. That can change the force calculus significantly under Graham since felony traffic stops are treated as a high-risk situation for officers.

In the incident shown in the still above, officers used a police dog against a man who refused to get out of a stolen car on the side of a freeway after the use of verbal commands and pepper balls had already failed to produce any compliance. The entire freeway was shut down in one direction for about half an hour while officers tried to resolve the situation. The dog ultimately bit and injured the man, who was then pulled out of the car. The use of a canine is at least “intermediate” force and has been described as the most severe force authorized short of deadly force. Police dog bites can sometimes be incredibly damaging, in part because officers do not always have that much control over the animal once it is released. Fortunately, the man’s injuries, though significant, were not too extreme in this case.

In this situation, it is possible to Monday morning quarterback and think of other ways the man could potentially have been removed from the car. However, the fact that a serious degree of force was used was not necessarily “excessive” under the circumstances. The more iffy scenarios occur, typically, when the underlying offense leading to the interaction at the car is quite minor and there are alternatives available to the officer short of using a significant degree of force.

For free consultation about potential civil rights cases, call today.

Malicious Prosecution - overview and contrast with false arrest

Law enforcement officers can violate the Fourth Amendment, and thereby open themselves up to liability, both by performance of an improper arrest and by something called “malicious prosecution.” But what’s the difference, and does this have anything to do with the actions of prosecutors, or is it just about police?

The more familiar idea, to most folks, is the bad (or “false”) arrest. A police officer or sheriff’s deputy stops and detains somebody, potentially escalating into a formal “arrest,” without a concrete, particularized basis to suspect that they’ve committed a crime. Depending on the totality of the circumstances, that may well be an unreasonable seizure, and thus a violation of the Fourth Amendment. (A false arrest overview writeup is here.)

The idea of “malicious prosecution” is related, but it’s a little more complicated, in part because the idea of “malicious prosecution” is not actually found anywhere in the Fourth Amendment and is instead drawn from state common law. Malicious prosecution occurs based on “the wrongful initiation of charges without probable cause.” Thompson v. Clark, 596 U.S. 36, 43 (2022). Proof of “malicious prosecution” also generally requires showing a malicious motive for instituting the charges and termination of the case via acquittal or discharge. Id. at 44. Some caselaw interpreting California law also suggests a requirement of showing that the defendant prosecuted the plaintiff for the purpose of denying equal protection or another specific constitutional right. See Mills v. City of Covina, 921 F.3d 1161, 1169 (9th Cir. 2019).

Police officers take actions that “initiate charges,” so they can commit “malicious prosecution” even though officers are not themselves prosecutors. Chiaverini et al. v. City of Napoleon, Ohio, 144 S.Ct. 1745 (2024). Other state actors, such as a coroner or an investigator, can also commit malicious prosecution in some circumstances. Galbraith v. County of Santa Clara, 307 F.3d 1119, 1126 (9th Cir. 2002).

Malicious prosecution causes of action can be asserted under both California law and under 42 U.S.C § 1983, but there are serious obstacles to this type theory either way. A federal claim runs risks of losing on qualified immunity grounds simply because there are so few pro-plaintiff decisions on the books and thus a fairly flimsy basis to show that a given legal rule was “clearly established.”

State law is also a very tricky landscape. California Government Code § 821.6 provides very strong immunities for public employees, providing that: “A public employee is not liable for injury caused by his instituting or prosecuting any judicial or administrative proceeding within the scope of his employment, even if he acts maliciously and without probable cause.” This language has been broadly interpreted to mean that “Under California law, a police officer may be held liable for false arrest and false imprisonment, but not for malicious prosecution." Asgari v. City of Los Angeles, 15 Cal. 4th 744, 757 (1997).

As with everything in law, there are exceptions to this broad rule. One of the most important is the language of Gov. Code § 820.21, which abrogates immunity for: (1) perjury; (2) fabrication of evidence; (3) failure to disclose known exculpatory evidence; or (4) obtaining testimony by duress, fraud, or undue influence — if committed with malice. Additionally, If the basis of a malicious prosecution claim does not stem from “the initiation or prosecution of proceedings,” the section 821.6 immunity does not apply. Leon v. County of Riverside, 14 Cal.5th 910, 924 (2023).

Actual prosecutors are typically likely to rely on police reports that allege that crimes have occurred, and so are even less likely to engage in “malicious prosecution” than law enforcement officers, unless they completely disregard what is suggested by the language of the police reports. Prosecutors also have an even broader range of immunities for their actions than do law enforcement officers.

Another interesting distinction between a “bad arrest” cause of action and a “malicious prosecution” cause of action is that they may “accrue” at very different times for purposes of determining when the statute of limitations begins to run. Most 1983 claims are subject to a 2-year statute of limitations (at least in California), but the time at which the claim accrues (starting the clock running) is governed by federal law. In a malicious prosecution case, the cause of action does not accrue until the criminal cause of action is terminated favorably to the plaintiff/defendant. McDonough v. Smith, 139 S. Ct. 2149, 2154-55, 204 L. Ed. 2d 506 (2019). Consequently, a malicious prosecution theory may be a way to pursue legal action against the individuals who caused charges to get filed in the first place (if the other elements of malicious prosecution appear satisfied and the situation is sufficiently egregious to be outside of the section 821.6 immunity) in a situation where a straightforward theory of a false arrest would be barred by the passage of time for a person who has burned up years fighting the criminal case to a successful resolution.

The idea of “malicious prosecution” can also refer to the bringing of a civil lawsuit with no basis, where there is termination favorable to the defendant and where the defendant is harmed. Such malicious prosecution claims are disfavored in California law because of their tendency to chill the use of the courts.

For free consultation about potential civil rights cases, call today.

Bodyweight Compression, Asphyxia, and Excessive Force

Can it be excessive force for police simply to put bodyweight on an unresistant person? It absolutely can, and it can be lethal.

Crushed: Bodyweight compression leading to asphyxia, as seen in officer bodycam in Scott v. Smith.

The most recent decision in this area from the Ninth Circuit just came out this week in Scott v. Smith, 23-15480, which denied qualified immunity to Las Vegas police officers who killed an unarmed, unresistant mentally ill man via compression asphyxia.

The Ninth Circuit panel notes that the use of bodyweight can amount to a very high degree of force, even if it is not, in the popular imagination, on a level of violence akin to shootings or dog bites:

Our precedent establishes that the use of bodyweight compression on a prone individual can cause compression asphyxia. Drummond ex rel. Drummond v. City of Anaheim, 343 F.3d 1052, 1056–57 (9th Cir. 2003). In Drummond, for example, officers “press[ed] their weight on [the plaintiff’s] neck and torso as he lay handcuffed on the ground.” Id. at 1056. This force was “severe and, under the circumstances, capable of causing death or serious injury.” Id. Drawing all reasonable inferences in Plaintiffs’ favor, a jury could find Smith and Huntsman’s conduct was similar deadly force.

Compression asphyxia also factored into the murder of George Floyd by Minneapolis police officers in 2020, an incident that galvanized the Black Lives Matter protests of that year.

For free consultation about potential civil rights cases, call today.

How Do You Sue the Sheriff?

When a person has experienced police brutality or other serious constitutional violations at the hands of a sheriff’s deputy, there are ways to fight back.

Law enforcement can be sued for money damages when there is strong evidence that an officer or a deputy has violated the law.

But winning a lawsuit is not easy. Claims for police brutality, and other types of civil rights lawsuits, face many obstacles and hidden pitfalls.

Making a compelling argument for the value of the case can also be tricky. Some cases involve obvious costs like medical bills or property damages, but in other situations the nature of the harm has more to do with the violation of a legal right, which municipal agencies and defense lawyers may claim has no or very low value. That defense position is wrong, but to prove that it’s wrong is not a simple task.

If you have concerns about the way you or a loved one has been treated by a Sheriff’s deputy, get in touch. We can help.

Photo by Bonnie Kittle on Unsplash.

Why People Apologize for the Police

It never fails: a video is posted of police brutality and a chorus of knuckleheads in the comments chime in to blame the person harmed.

“Why didn’t they just comply?”

“They had it coming!”

And so on. Endless deference to the officer. Contempt and ridicule for the person who is being mistreated by an agent of state power.

The latest version of this is the video posted by daygotv of a San Diego police officer abruptly pushing a person to the ground merely because the person walked up to the officer’s bicycle at the perimeter of a detention. The victim does nothing remotely aggressive. It looks like they simply want to ask a question.

Blame the Victim: Instagram commenters pile on to defend law enforcement use of excessive force.

No matter: the commenters pile on, blaming the victim for the officer’s push. Monday morning quarterbacking a use of force that was not even vaguely justified by the circumstances.

This deep instinct of many members of the public to apologize for police brutality is a reality that we have to recognize in civil rights litigation. It’s frankly not that different from the way people normalize abusive personal relationships, telling themselves over and over that their partner/parent/etc. is fundamentally good despite the fact that they do awful things.

The psychological phenomenon that’s going on here is internalized violence. When a person has been abused long enough, they begin to accept the abuse as justified and normal, even if people who live under different, more humane conditions would be stunned and horrified to be subjected to the same treatment.

There is also more than a little cowardice behind such comments. Folks make themselves feel safer and more secure by siding with the abuser and blaming the person who was harmed, since taking that stance implies that they themselves wouldn’t ever be abused in the same situation. If they actually were harmed, they would of course want sympathy and outrage. But since it didn’t happen to them in this case, they prefer to side with the person causing the harm.

Psychological distortions are not the same thing as objective reality, and in situations like this they also don’t have any connection to the real state of the law. Any degree of force that is used where there is no need for force is, by definition and as a matter of settled precedent, excessive, and should be called out. No amount of blather from confused anons on Instagram changes that fact.

Related Post: When Is Force Excessive?, Oct. 9, 2023

What is the monetary value of constitutional rights?

What damages are collectible based on an unreasonable search, if nobody is physically harmed and no property is damaged?

The answer is: it depends on how you look at it. And it depends on what you are willing to fight for.

Defense lawyers will argue that there is no “harm” in this sort of scenario. No medical bills. No repair costs. From their point of view, it’s a big zero.

But the Fourth Amendment is not just a piece of paper.

The right to be from unreasonable searches and seizures is a basic part of what it means to be American. It’s an idea that we fought a war over. It’s a principle that distinguishes our system of government from that of more totalitarian nations.

As as iconic trial lawyers like Nick and Courtney Rowley have emphasized, a narrow focus on purely “economic” damages can make us miss the bigger, deeper narrative of a case, which sometimes has to do with these basic values — and with the extraordinary degree of disrespect that law enforcement sometimes demonstrates for these values, in spite of their charge to uphold the law.

When we help the defendants and the fact-finder understand this more fundamental story, we make the full value of constitutional rights apparent.

Photo by Lukas Juhas on Unsplash.

It's a Trap! For California Inmates, "Administrative Exhaustion" and Presentation of a Tort Claim Are Not the Same Thing

There’s more to litigating prison cases than “exhausting” the prison’s administrative grievance system. In fact, there’s a trap for the unwary built into the process.

Some California inmates know about the need to file a 602 grievance form, and then to completely exhaust the appellate process, in order to go to court related to any sort of incident in prison. That’s a mandatory requirement of the Prison Litigation Reform Act (PLRA) if the person who files the complaint in court is in custody.

What most folks don’t realize is that there is a second, parallel process that should also be going on at the same time that administrative exhaustion is happening: the inmate should also be submitting a government tort claim form. Without submitting that tort claim form, inmates risk being unable to raise causes of action under California law, because rejection of the tort claim is a requirement for asserting such state claims.

The “trap” created by these two different systems is that an inmate may focus on the “exhaustion” piece of the process and burn up precious time, not realizing that they only have six months from the time of the underlying incident (normally) to submit the tort claim.

By the time they’ve “exhausted” their claim, the time to file the tort claim may have run.

Don’t fall for the trap! Get your paperwork going right away. If you need help, get in touch.

Six Months: the Magic Number in Civil Rights Claims.

Six months. Learn it, love it, know it.

Six months is the deadline for filing an administrative claim in most incidents that give rise to civil rights-type lawsuits in California, such as the use of excessive force, or unreasonable searches.

That matters because the filing of the administrative claim (and having it rejected by the municipal agency), is a requirement for going to court and bringing a cause of action under California law against an agency.

It’s possible, in some circumstances, to file a late claim, even once the six months has run. But it’s much better to get that claim filed in a timely way in the first place.

It may also be possible to pursue a case based solely on federal law if too much time has passed to be able to raise state claims. But in the best case scenario, you should always try to hit that six-month deadline for filing the administrative claim because some causes of action under California have unique strategic advantages compared to their federal equivalents.

Time has a way of passing. Don’t delay!

If you have questions about how to file an administrative claim, get in touch. We can help.

Can the Use of an LRAD "Sound Cannon" Be Excessive Force?

A tool that law enforcement agencies sometimes use in the context of demonstrations and crowd control is the “long range acoustic device” (LRAD) or “sound cannon.” In a nutshell, an LRAD emits extremely loud, focused sound that is painful — and perhaps even damaging to the hearing — for the listener. Several southern California law enforcement agencies have been documented as having these devices, including the police departments of Los Angeles and San Diego.

In some documented cases, these devices have been employed fairly indiscriminately against groups of people for the purpose of denying access to areas, in essentially the way that tear gas or baton strikes might be used on a more individualized basis. Since the devices are physically uncomfortable and potentially even physically harmful to the listener, their use in this manner raises concerns about excessive force. When there is no specific basis for the use of force, even a somewhat restrained use of force, as the LRAD might seem to be, may nevertheless be “excessive.” New York City and Pittsburgh have both settled lawsuits filed by individuals who asserted that the use of LRAD caused them hearing injuries (see footage of the Pittsburgh use in the YouTube video posted above).

To my mind, the litigation around LRADs also raises interesting questions around practices such as playing extremely loud classical music in transit stations, as has been seen for example in some Los Angeles metro stations. Loud or extremely repetitive music, of course, has also been used as a means of torture in some situations. When sound is being used to intentionally inflict pain or discomfort on individuals who are not actually breaking any law, and when the actor using that sound is the state, questions of excessive force are always potentially relevant.

Related Post: When Is Force Excessive?, Oct. 9, 2023

Related Post: Preserving Excessive Force Claims in “Resisting Arrest” Cases After Lemos v. County of Sonoma, Sept. 16, 2022

When is Force Excessive?

As surprising it as it may seem, law enforcement use of force does not become “excessive” merely because an individual is seriously injured, or even killed, by that force. Instead, the legal analysis looks to a cluster of circumstances that describe the context in which the force is used.

Lethal Force: The fact that law enforcement force is serious or even deadly does not necessarily mean it is “excessive.” The analysis depends on the circumstances.

Under Graham v. Connor, 490 U.S. 386 (1989), courts look to several factors in deciding whether a particular use of force is “excessive.” Those factors are

(1) the severity of the crime being investigated,

(2) whether the suspect poses an immediate threat to officers or others, and

(3) whether the suspect is actively resisting arrest or attempting to flee.

In short, the “excessive force” analysis is a sliding scale, with more serious or risky situations generally justifying a faster, more dramatic use of force. On the other hand, the law — at least in the Ninth Circuit — is clear that when there is no call for the use of force, any use of force, even relatively minimal force, is “excessive.” See, for example, Headwaters Forest Defense v. County of Humbolt, 240 F.3d 1185, 1199 (9th Cir. 2000) and Lolli v. County of Orange 351 F.3d 410, 417 (9th Cir. 2003). What might be reasonable in one context can amount to police brutality in another context.

In the wake of a use of force by law enforcement, agencies whose officers have used force frequently put out press releases emphasizing whatever facts supported the officers’ action. However, that information is nearly always incomplete, and sometimes downright misleading. Since the “excessive” quality of force depends on the facts, an informed assessment of whether force was “excessive” requires an aggressive effort to learn all the facts — not simply the facts that law enforcement agencies wish to highlight.

Related Posts:

Preserving Excessive Force Claims in “Resisting Arrest” Cases After Lemos v. County of Sonoma, Sept. 16, 2022

Bane Act Overview

California Public Records Act Statute Numbering Cross-Reference Update

I have posted another update to the California Public Records Act statutory numbering cross-reference chart here. As I mentioned previously, this chart is useful because when the California Legislature renumbered the CPRA they left no simple way to find the connection between the new and the old statutory numbers, and virtually all of the caselaw refers to the old numbers.

For free consultation about California Public Records Act cases, call today.

What Is Governor Newsom Trying to Do on Disclosure of Law Enforcement Misconduct Records? Is SB2 on the chopping block?

What are the political currents that led to Governor Newsom attempting to roll back access to California’s public records law pertaining to law enforcement misconduct?

ACLU California Action Director of Government Affairs Carmen-Nicole Cox speaks out against the proposed change. Photo by KCRA.

What Newsom was attempting to do, as discussed in good coverage here by KCRA, was to attach a budget trailer bill that would exempt the Commission on Peace Officer Standards and Training (POST) from provisions of the CPRA that pertain to disclosure of records of misconduct. The actual text of the trailer bill is here (hat tip to the Mercury News for actually posting a link). The text is the following:

ADD GOVERNMENT CODE SECTION 7923.601

This division does not require the disclosure of peace officer personnel files, and background investigation files gathered by law enforcement agencies pursuant to Government Code section 1031, in the custody of the Commission on Peace Officer Standards and Training in connection with the commission's authority to verify eligibility for the issuance of certification and investigate grounds for decertification of a peace officer pursuant to Penal Code section 13510.8, including any and all investigative files and records relating to complaints of, and investigations of, police misconduct, and all other investigative files and materials. Nothing in this paragraph shall limit the obligation of another public agency to disclose records of police misconduct, or other public records, pursuant to Penal Code section 832.7 or any other provision of law.

In some ways, this language seems limited (in the sense that, for example, it seemingly leaves intact many of the CPRA provisions that require disclosure of records of misconduct), and in other ways it’s obviously not. Does this language mean that if personnel records from a local agency — like a county sheriff’s department, for example — are “in the custody of the Commission on Peace Officer Standards and Training,” they are then shielded from disclosure? The last sentence might suggest the answer is “no,” but undoubtedly law enforcement agencies would argue “yes.”

More broadly, why would this language be consistent with the Legislature’s intent in enacting SB 2, SB 1421, and AB 748, all of which sought precisely to expand access to records of misconduct? Why is a higher degree of secrecy around officers who commit misconduct necessary, or reasonable, or anything that California voters should want?

Backing up for a second: what the heck is going on? Newsom is generally pretty reasonable on policing issues and California was way overdue for reform around public access to records related to law enforcement misconduct. Why on Earth would he be pushing to roll back that progress? Who is he listening to? As critics note in the coverage linked above, the fact that he was using this budget trailer process to try to get this change through is worrisome, because it strongly looks like an attempt to legislate under the radar.

The report about the proposed transparency tweak comes on the heels of another one suggesting — in my opinion, without any empirical basis — that the decertification provision of SB2 could produce “staggering” losses in law enforcement (nonpaywall summary here). It’s hard to know the specifics of what’s playing out here, but reading between the lines a little bit there strongly appears to be a lobbying effort going on to undercut SB2. Bottom line, this is also an effort to keep bad law enforcement officers from being exposed as such, and that is not something that any reasonable politician should support.

I have reached out to Newsom’s office in connection with this post and will update if I get any response.

Related Post: LA Times Endorses SB2, Aug. 7, 2021

Related Post: Retired LAPD Sergeant Dorsey: Pass SB2, July 13, 2021

Comparison Chart of Old and New Statute Numbering for the California Public Records Act (CPRA)

An aggravating modification was made to the statutory numbering of the California Public Records Act (CPRA) effective at the beginning of 2023, entirely relabeling and subdividing a large body of law. It’s not a bad thing in itself, but the problem is that virtually all of the caselaw on the CPRA uses the old statutory numbering and, at least in Lexis, there is no way to follow the links from the old statute to the new statute. This is quite annoying.

Therefore, here is a simple chart cross-referencing the old and new statutory numbering of at least some of the important components of the CPRA. I will add to this over time. (Edit: a second, more extensive, update is here.) Please make sure to verify any citations before using them in actual litigation.

For free consultation about California Public Records Act cases, call today.

AVOIDING A HECK BAR: Preserving Excessive Force Claims in “Resisting arrest” Cases After Lemos v. County of Sonoma.

A recurring theme in California criminal defense is the “resisting” charge – either simple resistance under § 148 or “forcible” resistance under § 69 – filed against individuals who are themselves victims of excessive force by law enforcement. A conviction for such a charge has the potential to act as a barrier to civil liability for the officer under the doctrine of Heck v. Humphrey (1994) 512 U.S. 477. But not all “resisting” cases are created equal, in terms of their effect on civil liability for an aggressive officer. Some fact patterns, and some tactics in handling the criminal case, are more likely to preserve causes of action for excessive force.

Heck holds that a claim under 42 U.S.C. § 1983 will be barred if success in that action would “necessarily require” the plaintiff to show the unlawfulness of his or her criminal conviction. (512 U.S. at p. 486.) But as explained in the recent en banc opinion in Lemos v. County of Sonoma (9th Cir. July 19, 2022) No. 19-15222, determining whether a conviction creates a barrier to liability requires close attention to what the bases could have been for the conviction and what was actually determined in the criminal case. As the Lemos dissent puts it, there is an “escape hatch to Heck” in the ambiguities of some cases. (Slip opn. at * 16.)

The “escape hatch” is that an allegation of excessive force will not be Heck barred if the problematic conduct of the officer is distinct temporally or spatially from the factual basis for the resisting conviction, such that success in the 1983 action does not “necessarily” require showing that the conviction was improper. This scenario is most likely to arise when there is a series of interactions between the defendant and the officer that could potentially give rise to the resisting charge, and where the officer’s use of excessive force did not necessarily occur at the same time and place as the resisting.

For example, in Lemos, the jury was instructed that four different actions by the defendant could be the basis for “resisting.” The jury’s general verdict of guilt did not make clear which of the bases it adopted, and success on the subsequent excessive force claim, which relied on the officer’s handling of only one of the four bases, therefore did not “necessarily” require invalidating that verdict. (Slip opn. at * 11.) No contradiction had to exist, after all, between the idea that Lemos resisted or obstructed the officer in his duties by blocking him from opening a truck door and the idea that the officer used excessive force when he tackled Lemos minutes later. (Id. at * 11-12.) (In reaching this conclusion, Lemos disapproved language in Smith v. City of Hemet (9th Cir. 2005) 394 F.3d 689 and Beets v. County of Los Angeles (9th Cir. 2012) 669 F.3d 1038 stating that a jury’s verdict in a resisting case that could be based on multiple acts “necessarily determines the lawfulness of the officers’ actions throughout the whole course of the defendant’s conduct.”)

Lemos drew support from the California Supreme Court’s conclusions in Yount v. City of Sacramento (2008) 43 Cal.4th 885, where the defendant resisted officers by struggling and kicking. Some minutes later, as Yount continued to resist, an officer accidentally shot him. Yount pled to a count of 148, stipulating to a factual basis for the plea “without any explicit recitation of what those facts were.” (43 Cal.4th at p. 895.) Such a plea did not create a Heck bar to an excessive force claim because there were “two isolated factual contexts” involved in the case, and success on the claim related to the use of force would not necessarily invalidate Yount’s guilt related to the initial struggle with police. (43 Cal.4th at p. 899, internal quotations omitted; see also Sanford v. Motts (9th Cir. 2001) 258 F.3d 1117, 1119 [no Heck bar to excessive force claim where several incidents could have given rise to resisting conviction and “nothing in the record informs us what the factual basis was for Sanford’s plea”].)

The takeaway message of Lemos is that liability for excessive force is more likely to be preserved after a resisting conviction if (1) the facts suggest multiple bases for the conviction, (2) those bases are separated from each other temporally or spatially, and (3) the record either leaves it unclear which basis was adopted or makes it apparent that that the basis for the criminal conviction is not directly intertwined with the conduct that gives rise to the excessive force claim.

Therefore, in a jury trial on resisting, it may be worth considering whether the jury can be instructed with multiple factual bases for the charge, as occurred in Lemos, at least if doing so does not undermine an otherwise defensible case; or, alternatively, whether the factual basis can be omitted altogether from the instructions so that the record will leave the jury’s factual determination vague.

In a plea bargain situation, defense counsel should consider whether it is possible to keep the factual basis strategically vague or, alternatively, to specify a basis for the plea that is temporally and physically distinct from the actions that could be the basis of a later excessive force claim. In stipulating to factual bases for pleas, defense counsel should avoid blanket adoption of entire documents, such as police reports or preliminary hearing transcripts, since adopting the entire document will tend to suggest that there is no conceivable excessive force claim that wouldn’t “necessarily” invalidate the resisting plea.

Related Post: When Is Force Excessive?, Oct. 9, 2023

A Template for California Public Records Act Requests in Cases Where Law Enforcement Has Inflicted Great Bodily Injury

UPDATE: Please note that the CPRA has been statutorily renumbered. Please do your own research and don’t just copy this language without looking up the relevant laws.

Law Enforcement Agency

Attn: Public Records Requests

[Date]

To whom it may concern:

I am writing to make a request under the California Public Records Act for records related to a [date] use-of-force incident in which [law enforcement agency] caused [victim] to suffer great bodily injury.

In this incident, members of the [law enforcement agency] used force against [victim].  As a result, [victim’s injuries go here]. These injuries were “great bodily injury” under any interpretation of that term, and thus implicate the language of Penal Code section  832.7, subd. (b)(1)(A)(ii) and Government Code section 6254, subd. (f)(4)(c)(ii).

With these factors in mind, I respectfully request to be provided (1) any use of force report that was generated, (2) any bodycamera or surveillance footage of the use of force, (3) any other documentation that was created to describe why and how force was used against [victim].

Thank you for your assistance with this request, and please let me know if you need any clarification.

Sincerely,

The Sergeant's Taser Trophy, and What It Says About Excessive Force

A San Diego Sheriff’s Sergeant who received a bizarre “trophy” for deploying his taser 25 times has resigned while under investigation for creating a hostile work environment for his colleagues, the San Diego Union reported yesterday. The newspaper quotes University of South Carolina law Professor Seth Stoughton, who points out that giving such a trophy for using force repeatedly “explicitly communicates that an officer’s use of force is something to be celebrated rather than avoided to the extent it is possible to do so.”

The taser “trophy” received by the sergeant. Photo by San Diego Union-Tribune.