March 12, 2011

CALIFORNIA CIVIL RIGHTS: POSSIBLE RETALIATION CASE FOR EXERCISING FIRST AMENDMENT RIGHTS

Here we have a § 1983 (civil rights) case where a vendor selling goods to the city publicly criticized the city’s procurement practices. He claimed city officials retaliated against him by not giving him some bids and contracts. MSJ granted and reversed.

Here's the holding:

[1] Complaints of government misusing funds is squarely protected by the First Amendment. A question of fact remains whether any causal relationship between Plaintiff's criticism and losing bids, and whether Plaintiff suffered any adverse action. [2] Government act of retaliation need not be severe to qualify as an adverse action sufficient to state a 1983 claim.

Marez v Bassett, 595 F.3d 1068 (9th Cir. 2010)

March 12, 2011

CALIFORNIA CIVIL RIGHTS CASES: ANOTHER CASE OF OVERDETENTION

This is a § 1983 civil rights case regarding "overdetention" of jail inmates.

Here, the Court held that overdetention of 27 hours was not a matter of deliberate indifference (See, Monell 436 U.S. 691) where administrative processing led to 43 overdetentions and 50,957 timely releases, and where new procedures had ‘dramatically decreased’ overdetentions. MSJ properly granted. Law of case did not prevent MSJ where prior appellate opinion dealt with related issues, not issue presented on MSJ [subtle distinction].

Mortimer v Baca, 594 F.3d 714 (9th Cir. 2010)

March 12, 2011

CALIFORNIA CIVIL RIGHTS: MAKE SURE YOU NAME THE RIGHT PARTIES

This is a § 1983 class action for claimed sheriff’s overdetention and officers’ efforts to procure involuntary (coerced) waiver of civil rights claims. Here's how the court held on the causes of action:

[1] No showing of a practice or policy of overdetaining inmates and thus no official capacity liability. [2] No freestanding right against coercive waivers, and even were there so, no clearly established right; thus qualified immunity. [3] No evidence of officers’ agreeing to overdetention and conspiracy claim fails. [4] RICO claim fails for showing of business- or property-interest harm.

Avalos v Baca, 596 F.3d 583 (9th Cir. 2010)

March 12, 2011

CALIFORNIA CIVIL RIGHTS-ATTORNEY FEES REDUCED

This was a § 1983 police excessive force & wrongful death judgment for plaintiff $1.00. This is what we read about in law school, but never think we will see. Well, this Plaintiff saw it. Bummer.

But Plaintiff's lawyer claimed $700K attorney fees. The trial court reduced the fees to to $118,000 in view of the limited success. The Court held that the fee award was properly reduced, but otherwise affirmed on the Defendant's appeal.

The factors the court considered in setting the fee aware were: (a) amount of damages sought & recovered, (b) Legal issue’s significance, (c) public goal.
Mahach-Watkins v Depee, 593 F.3d 1054 (9th Cir. 2010) (Fletcher)

March 12, 2011

SAN DIEGO CIVIL RIGHTS: FINALLY, THE CROWE CASE DECISION

Crowe v County of San Diego,593 F.3d 841 (9th Cir. 2010)

This was a case of § 1983 actions brought against city & county officers, psychologist, prosecutors et al, for criminal prosecutions of two teenager brothers. It is a lengthy, 65-headnote opinion. Here goes:

[1] Fifth amendment self-incrimination claim stated where coerced statements introduced during preliminary hearings. No qualified immunity since coerced confessions are subject to a clearly established right.

[2] Substantive due process claim stated for interrogation that “shocks the conscience.”

[3] Because reasonable officer could believe he had probable cause for arrests as several facts consistent with the crime existed, therefore qualifiedly immune.

[4] Search warrants: Second supported by probable cause. First lacked probable cause (material misrepresentations and omissions) but the circumstances surrounding do not conclusively demonstrate deliberate falsification or reckless disregard for the truth. Officers therefore have qualified immunity. (Okay, hold on here. Material misrepresentations and omissions doesn't rise to the level of reckless disregard? This is what they use (both prosecutors and cops) to "get away" with it....Oi gevelt)

[5] Strip searches possibly violations for lack of showing consent (for one) and noncoerced consents (for others).

[6] Drawing blood samples from two nonsuspects to help prove suspects’ involvement is not probable cause and violated clearly established law.

[7] Private psychologist consulted by police to formulate interrogation technique; § 1983 conspiracy claim stated and not immune. But detective’s mere participation in interrogation not enough to state conspiracy claim.

[8] § 1983 familial companionship claim stated for using coerced confessions as basis of continued incarceration.

9] “Defamation-plus” § 1983 claim against deputy DA for saying boys or other third parties may have committed murder is not enough to be “provably false” factual statement.

[10] Psychologist’s comparisons of boy to Charles Manson is figurative rhetoric that reasonable minds would not take to be a verifiable fact, and not defamatory.

[11] Monell § 1983 claims city’s policy is violation fails where no showing city’s policies permit or encourage coerced confessions.

March 12, 2011

SAN DIEGO CRIMINAL DEFENSE: SWEARING AND OBSCENITIES

SWEARING AND OBSCENITIES

Here's one close to my heart since I just got off with Barnes & Noble's customer service rep after being on the line for 123 minutes.....

The Court says that the issue in this case is whether "complaints laced with references to bovine excrement, body parts and other vulgarities derived from sexually-related terms" violates PC 653m(a), the annoying phone call statute.

That statute requires threats to inflict injury or use obscene language lewdly. The defendant said lots of nasty things, but made no threats and the language wasn't used lewdly. So this ain't a violation of 653m. Incidentally, the calls were made to the customer comment line of Coldstone Creamery. (Maybe I can rent him to give Barnes & Noble a few calls?)

In his many, many profanity-laced phone calls to the comment line, the defendant explains that he really loves their ice cream, especially their pumpkin flavor. He says he goes there 400 times a year, but he feels ripped off because he believes the 48 ounce size isn't actually 48 ounces. (I'm channeling The Biggest Loser) In addition, he's annoyed by other customers. This is certainly obnoxious, but it's not a violation of 653m, sayeth this C/A.

People v. Powers; 2011 DJ DAR 3318; DJ, 3/3/11; C/A 2nd, Div. 6

March 12, 2011

CALIFORNIA CRIMINAL DEFENSE: NEW IMMIGRATION CASE MANDATES NEW ADMONITIONS TO DEFENDANTS

In People v. Bonilla, the inth Circuit Court of Appeals has held that:

“A criminal defendant who faces almost certain deportation is entitled to know more than that it is possible that a guilty plea could lead to removal; he is entitled to know that it is a virtual certainty.”

Previously, criminal defendants pleading guilty were required to be informed of the "possibility" of certain immigration consequences, such as deportation and denial of naturalization. This new case raises the bar. Now, defendants must be told - in cases where deportation is almost a certainty - that the conviction will virtual assure deportation.

To read the entire case, click HERE.

March 12, 2011

CALIFORNIA CRIMINAL DEFENSE: FEDS TAKE OVER SAN FRANCISO POLICE SCANDAL

San Francisco District Attorney George Gascón said Friday that his office has pulled out of the investigation into whether San Francisco police officers conducted illegal raids and is handing over the case to the U.S. Justice Department.

Click HERE for original story.

The former police chief, who was named district attorney in January, said he had received unspecified new information Friday that meant his office was "not equipped" to investigate whether plainclothes officers at Southern Station had conducted improper searches and lied about them in police reports.

Four videotapes taken in residential hotels have recently surfaced that contradicted officers' descriptions in their reports on drug raids. The FBI is already investigating the matter, and until Friday, prosecutors had an independent probe under way.

"We do not have the resources that are necessary to do this right," Gascón said. "We believe the case will be better served if given to the U.S. Justice Department."

Gascón said he will let Justice Department officials decide whether federal charges should be filed against officers. He would not dismiss the possibility that the district attorney's office would file state charges if federal prosecutors do not pursue a case.

Earlier this week, Gascón announced that his office had scuttled a total of 57 prosecutions connected to the involved officers.
The Police Department says it has ordered refresher training for about 100 undercover officers posted at the city's district stations.

At a hastily arranged news conference Friday, Gascón repeatedly denied that his office was pulling out of the probe because of any concerns about conflict of interest.

"This has nothing to do with a conflict in any way or shape," said Gascón, who was police chief when some of the raids took place. "This has to do with the complexity of the case."

Interim Police Chief Jeff Godown said the Police Department was continuing criminal and internal probes into the case.

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March 8, 2011

CALIFORNIA POLICE MISCONDUCT: SUPPLYING THE SEALED PITCHESS MATERIAL TO THE COURT OF APPEAL

SUPPLYING THE SEALED PITCHESS MATERIAL TO THE COURT OF APPEAL

This case exists because the California Court of Appeal was annoyed at appellate counsel. Criminal defense lawyers want the Court of Appeal to review the Pitchess (11 Cal.3d 531) ruling in the trial court. But do we make sure that the appellate court HAS the sealed Pitchess proceedings? No.

The Court of Appeal says that all we have to do is make a motion under Rule 8.320 in the trial court to have the sealed stuff sent to the Court of Appeal, and then they get it. So it's super secret stuff but in order to be entitled to relief, we still have to make a
motion to have the super secret sealed stuff sent. But won't the ruling on our Rule
8.320 motion also be sealed? Isn't this crazy?

People v. Rodriguez; 2011 DJ DAR 3515; DJ, 3/8/11; C/A 4th, Div. 1