December 22, 2013

California Appeal Court Strikes Down Criminal Statutes for Vagueness

The 5th District Court of Appeal issued an opinion in Parker v. State of California last month upholding the trial court’s finding that three criminal state statutes were unconstitutional vague in violation of due process. (Fifth Appellate District, Case Nos. F062490, F062709 Fresno County Superior Court, Case No. 10CECG02116).

The statutes that would have restricted the sale of ammunition, but have been enjoined to prevent arbitrary and discriminatory enforcement. The panel’s 41-page published opinion clarifies California’s vagueness doctrine and confirms that criminal laws impacting fundamental rights must provide higher levels of clarity. Thus, they will be found to violate due process protections if they are vague in the “generality” or “majority” of cases – as opposed to every conceivable application. The opinion is an important for potential criminal defendants to prevent against unfair prosecution by ensuring statutes provide fair notice that their actions may result in criminal liability.

This is helpful and timely for my case. I soon will be filing an injunction/request for declaratory relief against the City of San Diego for to strike down its equivilent of the NFL Fan Code of Conduct on Due process ground.

The State of California filed a Petitioned for Review with the California Supreme Court on December 16. Anyone who is interested in seeing the Parker decision upheld may wish to weigh in with an amicus letter asking the Court to decline review. Amicus letters should be submitted as soon as possible. The 5th District’s opinion is extremely comprehensive and well written, and it should be permitted to stand. If the California Supreme Court wishes to weigh in on California’s vagueness doctrine again, it should do so after the Parker decision has percolated in the appellate districts to allow the Court to consider a more comprehensive evaluation of the issues by these courts.

The opinion and State’s Petition for Review are available here: http://michellawyers.com/guncasetracker/parkervcalifornia

November 24, 2013

MARY PREVOST'S BLOG: SEEKING WITNESSES OF FALSE ARREST/ABUSE BY SANTA MONICA POLICE OFFICER KOBY ARNOLD

If you have been falsely arrested or abused by Santa Monica Diego Police Officer Koby Arnold, please call Attorney Mary Prevost at (888) 384-1384.

Koby Arnold, pictured HERE, is the rogue officer who falsely arrested Sennett Devermont, also known as MrCheckPoint, for "Drunk Driving" even though he had not had a single drink. Koby Arnold then falsified his police reports to suggest Sennett was driving impaired by drugs. Again, not at all. Blood test? Clean for alcohol and clean for controlled substances. Oops. I mean, Koby Arnold KNEW Sennett Devermont wasn't drunk, but hauled him into court solely because he stood on his right not to talk to the cop, or do his field coordination tests. Arnold got animal control to come and take Sennett's terrified dogs to the pound, and threatened to have them adopted. What a gem.

And so Koby Arnold engaged in an attitude arrest, and he thought he could get away with it.

Now, had we been back in the 90's, Koby Arnold could walk free from the allegations Sennett has levied against him - specifically false arrest and excessive force. But, we are in the era of technology. Sennett recorded the transaction, and we have caught Officer Arnold admitting that he would falsely arrested Sennett because he had "nothing" when Sennett exercised his right not to talk to the bad copper. Want to hear the audio? Click on HERE.

And it's not the first time that Koby Arnold has gone rogue on the Santa Monica Police Department. Oh no. Click HERE for the LA article on the $99,000 settlement City of Santa Monica had to pay out to another man Arnold jumped from behind and beat up.

And, yet, the City Attorney of Santa Monica is again protecting the rogue cop.

July 28, 2013

SAN DIEGO SEXUAL POLITICS: IF FILNER GOES, SEND JAN GOLDSMITH AND THE CITY COUNCIL WITH HIM

It's utterly fascinating - and somewhat frightening - that most members of the City Council are calling for Bob Filner's resignation because of sexual harassment allegations. There's fire and brimstone coming from every corner. Every politician is jumping over the next trying to get a front row seat on the "Get Rid of Filner" train. You'd think they were REALLY upset by sexual harassment. But they're not. Each one of them is just as guilty of sexual harassment as Filner.

If Filner goes, so should the highly misogynistic Jan Goldsmith, AND the city council members who recently voted to hand Goldsmith $500,000 to hire two big law firms to defend lawsuits by victims of sexual predator, Anthony Arevalos. Let's be consistent folks. (Click HERE for an article on the first $250,000 authorization by the City Council.)

That's right. These very City Council members authorized $500,000 in retainers on two high profile law firms to DEFEND the city and the sexual predator cop against lawsuits brought by the sick cop's last 2 victims. Now the city attorneys and their high powered firms can further harass, bury, paper and destroy two women's lives who were already sexually assaulted by a cop the City knew was out there doing it. The cop is in state prison, his supervisors knew what was happening for years, the Chief gave the cop's supervisors promotions, and City Attorneys are taking depositions of victims, prying into their sex lives, trying to find old boyfriends, trying to scare them. Thanks San Diego City Council for protecting innocent women. All of you Filner haters who voted to continue the emotional harassment of two innocent victims of rogue cop Anthony Arevalos by handing misogynist Jan Goldsmith a blank check are simply two-faced.

So, if the defenders of women's virtue - the San Diego City Council - want Filner to go, I say "You go with them." And so should Jan Goldsmith, because he's complicit with ‎San Diego‬ City Council members who are allowing the continued sexual assault of two innocent victims.

Continue reading "SAN DIEGO SEXUAL POLITICS: IF FILNER GOES, SEND JAN GOLDSMITH AND THE CITY COUNCIL WITH HIM" »

June 28, 2013

SAN DIEGO CRIMINAL DEFENSE: LA Sheriff's Broke Law During Public Housing Patrol, Says Justice Department

From the LA Times:

Los Angeles Times | June 28, 2013 | 12:48 PM

The Los Angeles County Sheriff's Department engaged in "stops, searches, and seizures and excessive force in violation of the Constitution and federal law" in its patrolling of public housing in the Antelope Valley, the U.S. Justice Department said today in announcing the conclusion of a two-year civil rights investigation into the department.

Residents have complained of surprise inspections of government-subsidized housing intended to ensure residents are meeting the terms of their assistance. The checks often involved armed sheriff's deputies, they said.

The Justice Department also found a "pattern or practice of discrimination against African Americans in its enforcement of the Housing Choice Voucher Program in violation of the Fair Housing Act," according to a statement released today.

March 29, 2013

Little-Known Surveillance Tool Called Stingray Raises Concerns by Judges, Privacy Activists

From The Washington Post. Click HERE for original story.

By Ellen Nakashima, Published: March 27

Federal investigators in Northern California routinely used a sophisticated surveillance system to scoop up data from cellphones and other wireless devices in an effort to track criminal suspects — but failed to detail the practice to judges authorizing the probes.

The practice was disclosed Wednesday in documents obtained under the Freedom of Information Act by the American Civil Liberties Union of Northern California — in a glimpse into a technology that federal agents rarely discuss publicly.

The investigations used a device known as a StingRay, which simulates a cellphone tower and enables agents to collect the serial numbers of individual cellphones and then locate them. Although law enforcement officials can employ StingRays and similar devices to locate suspects, privacy groups and some judges have raised concerns that the technology is so invasive — in some cases effectively penetrating the walls of homes — that its use should require a warrant.

The issues, judges and activists say, are twofold: whether federal agents are informing courts when seeking permission to monitor suspects, and whether they are providing enough evidence to justify the use of a tool that sweeps up data not only from a suspect’s wireless device but also from those of bystanders in the vicinity.

In Northern California, according to the newly disclosed documents, judges expressed concerns about the invasive nature of the technology.

“It has recently come to my attention that many agents are still using [StingRay] technology in the field although the [surveillance] application does not make that explicit,” Miranda Kane, then chief of the criminal division of the Northern California U.S. attorney’s office, said in a May 2011 e-mail obtained by the ACLU.

As a result of that, she wrote, “effective immediately, all . . . applications and proposed orders must be reviewed by your line supervisor before they are submitted to a magistrate judge.”

The Justice Department has generally maintained that a warrant based on probable cause is not needed to use a “cell-site simulator” because the government is not employing them to intercept conversations, former officials said. But some judges around the country have disagreed and have insisted investigators first obtain a warrant.

“It’s unsettled territory,” said one U.S. law enforcement official, who spoke on the condition of anonymity because he was not authorized to speak for the record.

In a statement, Christopher Allen, a spokesman for the FBI, said the bureau advises field offices to “work closely with the relevant U.S. Attorney’s Office to adhere to the legal requirements” of their respective districts.

One of the problems is there is “scant law” addressing the issue of cell-site simulators, said Brian L. Owsley, a federal magistrate judge in the Southern District of Texas, who in June wrote a rare public ruling on the issue. He denied an application to use a StingRay, in large part because he felt the investigating agent failed to explain the technology or how it would be used to gather the target’s cellphone number.

Continue reading "Little-Known Surveillance Tool Called Stingray Raises Concerns by Judges, Privacy Activists" »

April 11, 2012

CIVIL RIGHTS: NY PRISON "LOSES" VIDEO OF PRISONER'S BEATING

When Kadeem John, an 18-year-old inmate at Rikers Island, was beaten severely by another prisoner in 2010, the attack was captured by a digital surveillance camera, correction officials have said.
But when Mr. John’s lawyers sued New York City and sought to review evidence in the case, they were unable to view the recording, they say, because it had been destroyed.

The city’s failure to preserve the recording has sparked an intense legal dispute, with a federal judge in Manhattan, Robert P. Patterson Jr., agreeing recently to impose sanctions on the city that could complicate its ability to defend against the lawsuit.

Surveillance cameras are becoming increasingly common in New York’s jails — correction officials said they planned to have 2,800 by the end of 2013 — and the recordings may emerge as critical evidence in lawsuits.

In court last month, for example, lawyers for the city told Judge Patterson that the actual recording was unnecessary because a supervisor who had viewed it could testify about what it showed.

Mr. John’s lawyer, Adam R. Pulver, disagreed. “A videotape is unique,” he said. “It’s irreplaceable. It’s neutral. A jury should be entitled to see what the video showed.”

The city, which is contesting liability in the case, has said in filings that the recording “was destroyed in accordance” with a “record retention schedule” because officials did not expect litigation.

“There is no evidence, as we understand it, of staff complicity in the inmate fight involving Mr. John,” said Sharman Stein, a correction spokeswoman.

But Mr. John’s lawyers contend that he was beaten by other inmates who effectively ran his unit for teenagers at the Robert N. Davoren Complex on Rikers Island. They say the assault fit a pattern cited by law enforcement authorities in which favored prisoners receive tacit approval to keep order by beating and threatening other inmates.

Mr. Pulver said the lawsuit alleged that officers “stood by and allowed” the beating to happen. “We cannot say for sure whether the video would support that or not,” he added in court, “but that’s because we’ve not seen the video.”

Mr. John was jailed in June 2010. The suit says he learned about an “inmate enforcer” on his unit who led a team of prisoners and controlled access to telephones, seating arrangements in a dayroom and the distribution of cigarettes. The inmate’s “domination was blatant and apparent” to the staff, the suit charges.

On June 26, Mr. John, who had earlier refused an order made by the inmate, was punched in the head from behind, and then in his face and lower back, the suit says, while being escorted with other prisoners, and no officer intervened.

He was moved into a dayroom “where he remained, in plain view of corrections officers, bleeding internally and slipping in and out of consciousness, for a significant period of time,” the suit adds.

He suffered kidney damage and bleeding in the brain, Mr. Pulver said.

The next month, the Legal Aid Society, which is representing Mr. John along with the law firm Emery Celli Brinckerhoff & Abady, wrote to a correction official requesting an investigation. She responded that one would be undertaken, filings show.

A year later, in July 2011, Jonathan Chasan, a Legal Aid lawyer, asked whether any video existed of the incident. The official replied that no recordings had been preserved. In February, the lawyers received documents from the city that described the recording and how it was used, and stated that it no longer existed.

The documents showed that three days after the assault, a supervisor viewed the recording, identified the assailant and prepared a report of the incident.

Another report shows that officials did not fully investigate until more than a year after the attack. By then, the recording was gone. There was no request to preserve it, the report says, and the surveillance system stored recordings for only 60 days.

Judge Patterson granted the plaintiff’s requests that the city be barred from offering testimony about what was on the recording, and that it be made clear to the jury that a recording had existed and would have supported the plaintiff’s version of events.

In the hearing, a lawyer for the city, Diep Nguyen, argued that a sanction was inappropriate.

“Even though you destroyed the tape after notice of the assault?” the judge asked.

“Unfortunately, the order to preserve the tape did not trickle down,” Ms. Nguyen said
.

by a digital surveillance camera, correction officials have said.

But when Mr. John’s lawyers sued New York City and sought to review evidence in the case, they were unable to view the recording, they say, because it had been destroyed.

The city’s failure to preserve the recording has sparked an intense legal dispute, with a federal judge in Manhattan, Robert P. Patterson Jr., agreeing recently to impose sanctions on the city that could complicate its ability to defend against the lawsuit.

Surveillance cameras are becoming increasingly common in New York’s jails — correction officials said they planned to have 2,800 by the end of 2013 — and the recordings may emerge as critical evidence in lawsuits.

In court last month, for example, lawyers for the city told Judge Patterson that the actual recording was unnecessary because a supervisor who had viewed it could testify about what it showed.

Mr. John’s lawyer, Adam R. Pulver, disagreed. “A videotape is unique,” he said. “It’s irreplaceable. It’s neutral. A jury should be entitled to see what the video showed.”

The city, which is contesting liability in the case, has said in filings that the recording “was destroyed in accordance” with a “record retention schedule” because officials did not expect litigation.

“There is no evidence, as we understand it, of staff complicity in the inmate fight involving Mr. John,” said Sharman Stein, a correction spokeswoman.

But Mr. John’s lawyers contend that he was beaten by other inmates who effectively ran his unit for teenagers at the Robert N. Davoren Complex on Rikers Island. They say the assault fit a pattern cited by law enforcement authorities in which favored prisoners receive tacit approval to keep order by beating and threatening other inmates.

Mr. Pulver said the lawsuit alleged that officers “stood by and allowed” the beating to happen. “We cannot say for sure whether the video would support that or not,” he added in court, “but that’s because we’ve not seen the video.”

Mr. John was jailed in June 2010. The suit says he learned about an “inmate enforcer” on his unit who led a team of prisoners and controlled access to telephones, seating arrangements in a dayroom and the distribution of cigarettes. The inmate’s “domination was blatant and apparent” to the staff, the suit charges.

On June 26, Mr. John, who had earlier refused an order made by the inmate, was punched in the head from behind, and then in his face and lower back, the suit says, while being escorted with other prisoners, and no officer intervened.

He was moved into a dayroom “where he remained, in plain view of corrections officers, bleeding internally and slipping in and out of consciousness, for a significant period of time,” the suit adds.

He suffered kidney damage and bleeding in the brain, Mr. Pulver said.

The next month, the Legal Aid Society, which is representing Mr. John along with the law firm Emery Celli Brinckerhoff & Abady, wrote to a correction official requesting an investigation. She responded that one would be undertaken, filings show.

A year later, in July 2011, Jonathan Chasan, a Legal Aid lawyer, asked whether any video existed of the incident. The official replied that no recordings had been preserved. In February, the lawyers received documents from the city that described the recording and how it was used, and stated that it no longer existed.

The documents showed that three days after the assault, a supervisor viewed the recording, identified the assailant and prepared a report of the incident.

Another report shows that officials did not fully investigate until more than a year after the attack. By then, the recording was gone. There was no request to preserve it, the report says, and the surveillance system stored recordings for only 60 days.

Judge Patterson granted the plaintiff’s requests that the city be barred from offering testimony about what was on the recording, and that it be made clear to the jury that a recording had existed and would have supported the plaintiff’s version of events.

In the hearing, a lawyer for the city, Diep Nguyen, argued that a sanction was inappropriate.

“Even though you destroyed the tape after notice of the assault?” the judge asked.

“Unfortunately, the order to preserve the tape did not trickle down,” Ms. Nguyen said
.

/nyregion/destroyed-surveillance-video-called-key-to-inmates-lawsuit.html?_r=1&emc=tnt&tntemail1=y

When Kadeem John, an 18-year-old inmate at Rikers Island, was beaten severely by another prisoner in 2010, the attack was captured by a digital surveillance camera, correction officials have said.
But when Mr. John’s lawyers sued New York City and sought to review evidence in the case, they were unable to view the recording, they say, because it had been destroyed.

The city’s failure to preserve the recording has sparked an intense legal dispute, with a federal judge in Manhattan, Robert P. Patterson Jr., agreeing recently to impose sanctions on the city that could complicate its ability to defend against the lawsuit.

Surveillance cameras are becoming increasingly common in New York’s jails — correction officials said they planned to have 2,800 by the end of 2013 — and the recordings may emerge as critical evidence in lawsuits.

In court last month, for example, lawyers for the city told Judge Patterson that the actual recording was unnecessary because a supervisor who had viewed it could testify about what it showed.

Mr. John’s lawyer, Adam R. Pulver, disagreed. “A videotape is unique,” he said. “It’s irreplaceable. It’s neutral. A jury should be entitled to see what the video showed.”

The city, which is contesting liability in the case, has said in filings that the recording “was destroyed in accordance” with a “record retention schedule” because officials did not expect litigation.

“There is no evidence, as we understand it, of staff complicity in the inmate fight involving Mr. John,” said Sharman Stein, a correction spokeswoman.

But Mr. John’s lawyers contend that he was beaten by other inmates who effectively ran his unit for teenagers at the Robert N. Davoren Complex on Rikers Island. They say the assault fit a pattern cited by law enforcement authorities in which favored prisoners receive tacit approval to keep order by beating and threatening other inmates.

Mr. Pulver said the lawsuit alleged that officers “stood by and allowed” the beating to happen. “We cannot say for sure whether the video would support that or not,” he added in court, “but that’s because we’ve not seen the video.”

Mr. John was jailed in June 2010. The suit says he learned about an “inmate enforcer” on his unit who led a team of prisoners and controlled access to telephones, seating arrangements in a dayroom and the distribution of cigarettes. The inmate’s “domination was blatant and apparent” to the staff, the suit charges.

On June 26, Mr. John, who had earlier refused an order made by the inmate, was punched in the head from behind, and then in his face and lower back, the suit says, while being escorted with other prisoners, and no officer intervened.

He was moved into a dayroom “where he remained, in plain view of corrections officers, bleeding internally and slipping in and out of consciousness, for a significant period of time,” the suit adds.

He suffered kidney damage and bleeding in the brain, Mr. Pulver said.

The next month, the Legal Aid Society, which is representing Mr. John along with the law firm Emery Celli Brinckerhoff & Abady, wrote to a correction official requesting an investigation. She responded that one would be undertaken, filings show.

A year later, in July 2011, Jonathan Chasan, a Legal Aid lawyer, asked whether any video existed of the incident. The official replied that no recordings had been preserved. In February, the lawyers received documents from the city that described the recording and how it was used, and stated that it no longer existed.

The documents showed that three days after the assault, a supervisor viewed the recording, identified the assailant and prepared a report of the incident.

Another report shows that officials did not fully investigate until more than a year after the attack. By then, the recording was gone. There was no request to preserve it, the report says, and the surveillance system stored recordings for only 60 days.

Judge Patterson granted the plaintiff’s requests that the city be barred from offering testimony about what was on the recording, and that it be made clear to the jury that a recording had existed and would have supported the plaintiff’s version of events.

In the hearing, a lawyer for the city, Diep Nguyen, argued that a sanction was inappropriate.

“Even though you destroyed the tape after notice of the assault?” the judge asked.

“Unfortunately, the order to preserve the tape did not trickle down,” Ms. Nguyen said
.

March 26, 2012

LAPD FINDS DEPUTY ENGAGED IN PROFILING-ITS ABOUT TIME

The LAPD, for the first time in its history, had admitted that a cop engaged in racial profiling. While some may laud this finding, I think it is sad that the year 2012 is the first year in the history of the department that they admit racial profiling occurred. Before, they just lied and denied.

Officer engaged in racial profiling, LAPD probe finds

By Joel Rubin

March 26, 2012, 3:10 p.m.

A white police officer targeted Latino drivers for traffic stops because of their race, a Los Angeles Police Department investigation concluded -- marking the first time the agency has found one of its officers guilty of racial profiling.

For decades, the question of racial profiling -- "biased policing," in LAPD jargon -- has bedeviled the LAPD. Accusations that the practice was commonplace in minority neighborhoods throughout the 1970s and '80s helped earn the LAPD a reputation for bias and abuse of power.

And, despite dramatic reforms that have boosted the department's image over the last 10 years, the persistence of profiling claims has prevented the agency from shaking its dark past altogether. With hundreds of officers accused of profiling each year, department officials have cleared all of them of wrongdoing, telling exasperated critics that it was all but impossible to determine whether a cop was motivated by racial bias.

The investigation into Patrick Smith, a 15-year veteran who worked alone on a motorcycle assignment in the department's West Traffic Division, found he was stopping Latinos based on their race and deliberately misidentifying some Latinos as white on his reports -- presumably in an effort to conceal the fact that the people he pulled over were overwhelmingly Latino, according to multiple sources with knowledge of the case who requested that their names not be used because police personnel issues are confidential.

At a meeting last month, LAPD Chief Charlie Beck reviewed the evidence against Smith and heard from members of his command staff who recommended that the officer be found guilty. Beck signed off on the investigation's findings and ordered Smith sent to a disciplinary hearing, where the department will attempt to have him fired, the sources said. In Los Angeles, the police chief cannot fire an officer unilaterally but instead must let a three-person board hear the case and decide if firing is warranted. Smith had been relieved of duty during the investigation, sources said.

Smith did not respond to an email seeking comment, and the Police Protective League, which represents rank-and-file officers, declined to comment.

John Mack, a member of the department's civilian oversight board who has pushed in recent years for reforms in how profiling investigations are conducted, said the case signaled "a giant step forward," when informed of the findings by The Times.

"It represents a confirmation of the seriousness with which the department is now considering the issue," he said. "It means we've come a very long way."

Profiling complaints typically arise from traffic or pedestrian stops, in which the officer is accused of targeting a person solely because of his or her race, ethnicity or other form of outward appearance.

Copyright © 2012, Los Angeles Times

December 6, 2011

SAN DIEGO CIVIL RIGHTS: JUROR ASSAULTED/ARRESTED BY COURTHOUSE DEPUTY

For John Stephens, the injuries have healed, but the memories have yet to fade.

Click HERE to see the video of the news story.

"I remember thinking, 'What is going on here?'" said Stephens, a retired school bus driver and former Navy sailor.

In July 2010, Stephens was summoned to jury at the downtown courthouse. He walked into the courthouse with his wife, and then placed his watch in the basket as he prepared to go through a security checkpoint.

However, Stephens' implants from knee surgery set off the metal detector, so a deputy took him aside and used a hand-held to inspect him. At that point, Stephens said someone grabbed his belongings.

"I looked over and saw this gentleman with my watch and belt, and I said, 'Hey,'" said Stephens.

Stephens' wife, Elizabeth, said, "He never moved his arms down from that position."

Stephens never finished his sentence because he said a deputy surprised him.

"Next thing I knew I was on the floor and the guy was twisting my arm to the point of breaking it … I felt his knee coming into me … next thing I know I'm on the ground. There were three of them twisting every way they could," Stephens told 10News.

The incident left him upset and in pain.

"One arm was bruised and purple for three to four weeks," said Stephens.

Stephens was also handcuffed and under arrest for obstruction. Charges were never filed, but Stephens filed a civil suit against San Diego County for the abuse inflicted on him by deputies and false arrest.

"He clearly was not a danger to anyone. This is the worst case of abuse by [a] sheriff's deputy at the courthouse," said Stephens' lawyer, Civil Rights Attorney Mary Frances Prevost.

Elizabeth Stephens added, "They could have done irreparable damage. It's not right, it's not right."

Stephens said he thought the right thing was going to jury duty. He's not so sure anymore.

"It was astounding. I came down for this? All I'm trying to do is go to jury duty," Stephens said.

County attorneys declined to comment due to pending litigation.

Stephens' wife tracked down the man who took her husband's watch and other items, and was able to get the items back. The man was not charged with theft.

California Civil Rights Attorney Prevost said she believes there is surveillance tape, but has yet to obtain it.

Continue reading "SAN DIEGO CIVIL RIGHTS: JUROR ASSAULTED/ARRESTED BY COURTHOUSE DEPUTY" »

August 18, 2011

CALIFORNIA POLICE MISCONDUCT: RIGHT TO PITCHESS DISCOVERY OF COMPLAINTS MADE AFTER THE ARREST

YES, WE DO HAVE THE RIGHT TO POLICE MISCONDUCT DISCOVERY OF COMPLAINTS MADE AFTER THE ARREST

The defendant was convicted. He appealed and eventually got federal habeas relief. Back in the trial court, the defendant moved for Pitchess (11 Cal.3d 531) discovery against the officers.

The trial court granted the motion, but denied any discovery of complaints made against the officers after the date of the defendant's arrest. Why on this earth judges consistently make up rules to protect the police is beyond me. Yes, I know they all run on "Law Enforcement's Choice" tickets for re-election. But a fourth grader would have enough sense to have granted this public defender's request. I mean, C'mon.

The California Court of Appeal says this is wrong. The defense is entitled to discovery of such complaints, on a showing of good cause.

Blumberg v. Superior Court
; 2011 DJ DAR 11477; DJ, 8/1/11; C/A 2nd,
Div. 5

Continue reading "CALIFORNIA POLICE MISCONDUCT: RIGHT TO PITCHESS DISCOVERY OF COMPLAINTS MADE AFTER THE ARREST" »

July 26, 2011

LAW OFFICES OF MARY PREVOST; CLASS ACTION CERTIFIED FOR CITIZENS' TAX SUIT AGAINST GOVERNMENT

In a class-action dispute concerning whether Government Code section 910 allows taxpayers to file a class action claim against a municipal governmental entity for the refund of local taxes, judgment of the court of appeals affirming trial court's denial of class certification is reversed where, consistent with City of San Jose v. Superior Court, class claims for tax refunds against a local governmental entity are permissible under Section 910 in the absence of a specific tax refund procedure set forth in an applicable governing claims statute.

Ardon v. City of Los Angeles, No. S174507

Continue reading "LAW OFFICES OF MARY PREVOST; CLASS ACTION CERTIFIED FOR CITIZENS' TAX SUIT AGAINST GOVERNMENT" »

July 20, 2011

LAW OFFICES OF MARY PREVOST: TOP NAVY SURGEON SUES CHULA VISTA POLICE DEPARTMENT FOR POLICE BRUTALITY

In 2008 I won a $400,000 settlement for a teenager who was beaten to the ground in his own driveway until he was unconscious. The assailant was a Chula Vista Police Officer. See, http://www.californiacriminallawyerblog.com/cgi-bin/mt.cgi?__mode=view&_type=entry&id=8472&blog_id=76.

Last year, CVPD lost a $2 million lawsuit. Why? It's officers attacked a federal agent.

Now, another Chula Vista Police officer is on the hot spot. http://www.signonsandiego.com/news/2011/jul/20/top-navy-surgeon-files-lawsuit-against-chula-vista/

See, also http://www.10news.com/news/28554452/detail.html

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

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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July 12, 2010

CALIFORNIA CIVIL RIGHTS ATTORNEY - JUDGE SAYS: ORANGE COUNTY SHERIFF DEPUTIES MAY HAVE USED EXCESSIVE FORCE

by Teri Sforza, Register staff writer

Perhaps the question is not if the county will settle this lawsuit, but when, and for how much…?

It’s not going well when a federal judge writes, “a reasonable jury could conclude that the defendant officers used excessive force against Ms. White …. Ms. White was not under suspicion of having committed any crime. Nor were the officers present to investigate Ms. White. Indeed, the officers were standing on Ms. White’s property without having obtained a warrant ….”

OUCH

We told you recently about the case involving an Old English sheep dog, a woman named Toy (who suffered a nasty black eye), and an Orange County Sheriff’s deputy who was arrested for DUI after two crashes within a half-hour.

Mission Viejo paid $24,000 to make this suit go away – but it is still grinding against former Deputy Allan James Waters’ bosses, the County of Orange and the Sheriff’s Department, racking up legal bills.

(Waters, by the way, is no longer a deputy. And shortly after he turned in his uniform, he was arrested for DUI and on suspicion of being a drug dealer who traded fake drugs and cash in exchange for real prescription drugs. The District Attorney’s Office said he tried to pull a fast one by using a white powder instead of cocaine. Oops.)

The county has settled one other case involving Deputy Waters for $32,000.

DOG GONE

On July 7, 2007, Toy Whitewas home in Mission Viejo with her husband Steve and their three Old English sheep dogs. A woman entered the property without permission, the suit says - and one of the dogs bit her.

That evening, there was a knock at the Whites’ door. They opened it, and there stood four OC sheriff’s deputies and a Mission Viejo animal control officer. They entered the house without the Whites’ consent – and without a warrant - demanding that the dog be surrendered for a 10-day quarantine.

Mission Viejo law allows for in-home quarantine when a bite happens during trespassing on private property. The Whites said they wanted to do that instead.

And here, according to the suit filed in federal court, is where things got dicey. The deputies became threatening and said, “Just give up the dog,” the suit says.

Toy White asked the officers to leave her house; they would continue the discussion outside. As she placed her hand on the door handle, “she was violently grabbed and thrown face first onto the tile floor, without warning or provocation, by (deputies) Macias and Waters,” the suit says. She was then cuffed tightly, arrested, and hauled off to jail.

The dog, meanwhile, was taken into custody as well. The dog was returned the following day, when the city realized its error; but White was arrested for battery on an officer and resisting arrest. The District Attorney’s office did not proceed, however, determining that the officers had no authority to enter the house, and no legal right to remove the dog, the suit says.

Deputies named, along with Waters, are J. Macias, S. Crivelli and T. Jansen, along with animal control officer H. Holmes. They maintain that White was threatening, advanced toward the deputies and resisted arrest.

SAYS THE JUDGE

The suit is in federal court, before Judge David O. Carter. He made the comments we’re quoting in an order granting in part, and denying in part, the county’s motion for summary judgment (a determination made by the court without a full trial).

Writes Carter: “…it remains a disputed issue of material fact as to whether Ms. White made any contact with the police officers. Even if Ms. White made such contact, the officers would only be entitled to use the force necessary in the circumstances, which was minimal since the officers concede that Ms. White was in the office of closing the front door to Plaintiffs’ residence and thereby imposing a physical barrier between herself and the officers.

“To the extent the officers now claim it was necessary to physically restrain Ms. White in order to effectively combat the harm alleged to have been caused by the Plaintiffs’ dog, the Court is unconvinced. It is for a jury to determine whether Ms. White’s restraint was a reasonable response to the threat that a dog inside Plaintiffs’ home posed a public safety risk. But the mere fact that Ms. White resisted the officers’ attempts to enter her residence without a warrant is far from a legitimate basis for the officers’ actions on July 7, 2007.”

The Whites’ attorney, Mary Frances Prevost, is understandably encouraged. She doesn’t completely understand why the county doesn’t cut its losses here, but postulates that it’s the way the system is set up. Lawyers make more money when cases go to trial, she says. Lawyers make less money when cases settle.

[california civil rights attorney, san diego civil rights attorney, orange county civil rights attorney, riverside civil rights attorney, imperial county civil rights attorney, san francisco civil rights attorney, ventura vicil rights attorney, santa barbara civil rights attorney]

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July 12, 2010

WHEN WILL ORANGE COUNTY SETTLE ITS POLICE BRUTALITY CASE AND STOP PAYING ITS LAWYER TO DEFEND THE DIRTY COPS?

I have been posting on this issue for a long time. And it's been too long since the County of Orange decided not to settle this horrible case.

Instead, the County of Orange is protecting a dirty cop who crashed in a DUI accident, beat another person and settled the case, sold "bunk" (fake drugs) to get money, and beat a 5'2" cosmetics representative to the ground in her own home.

Well, when the firm of Sullivan & Ballog, who are defending the rogue cops in this case, tried to get the case kicked out of court, the judge said "No!"

Here's the article:

http://taxdollars.ocregister.com/2010/07/12/officers-used-excessive-force-ruling-suggests/60459/

May 17, 2010

WHAT COST TO DEFEND DIRTY COPS? ORANGE COUNTY TAXPAYERS ARE GETTING RIPPED OFF.

On December 27, 2005, Ron Capizzi filed a federal civil rights lawsuit against the County of Orange and a bunch of rogue Orange County deputy sheriffs.

After three grueling years of all out litigation, including the taking of every deposition possible at the cost of tens of thousands of dollars in litigations costs, the case finally settled on the eve of trial for $38,000 on December 15, 2008.

Three years of litigation. Tens of thousands of dollars in litigation costs. Why didn't this case settle sooner?

The answer is easy. Counties and cities hire outside counsel to represent them in such cases. It is not valuable to a private civil law firm to settle a case early. The interest of the law firm is to bill the county for the largest amount possible. Settling the case early is a conflict. The best interest of the county is generally not the best interest of the law firm.

What happened in the Capizzi case is typical of outside law firms billing the taxpayers tens of thousands of dollars in costs and attorney fees for cases that should be handled quickly and settled immediately. I suspect, and will soon find out, that the Santa Ana law firm of Sullivan & Ballog billed more than 100,000 in costs and fees to the County of Orange over those three years. It's public record.

And what did the county get out of it? A big bill. The county and it's cops got thrown under the bus. After all that time, they finally gave money to the Plaintiff. But they gave much, much more money to the attorney who defended him. The cops didn't win. The County didn't win. The plaintiff and his attorney didn't win. But Santa Ana law firm Sullivan & Ballog won big.

Now, it's happening again. The same Santa Ana lawfirm is billing, billing, billing on the case of Toy White v. County of Orange. (A separate law firm also just settled a different case by a different lawfirm against Deputy Allan Waters, one of the cops in the White case on the even of trial. Click HERE for the story. We'll be getting those costs and fees, too).

You will remember that Toy White is the 5'1" cosmetics rep who was brutally beaten to the ground when the dogcatcher and a band of four - count 'em FOUR - heavily armed Orange County deputy sheriff's burst into her house to take her dog that had been involved in a minor bite. They didn't have the right. They had no warrant. There was no legal cause to bust into her house and slam her to the floor, other than what they made up in their reports to justifies their actions. See HERE for story in the Orange County Register.

The City of Mission Viejo, who employed the dogcatcher, settled the case. But it's not amazing that the C ounty refuses to take resposibility for it's rogue bunch of brutal cops.

Now, the same firm that ripped off the County of Orange, the Orange County Sheriff's Department and the cops in the Capizzi case to the tune of more than $100,000 in litigation costs and attorney fees, is refusing to made any good faith settlement offers in the Toy White case. Is this another Capizzi case? Uh, we think so.

Same lead attorney - Al Ballog. Same law firm - Sullivan & Ballog.

I am preparing a California Public Records Act request to various cities and counties to get the exact costs of litigation and attorney fees on a series of cases, like Capizzi and White.

What you will see - because I've obtained the litigation cost bills and attorney fees billed to public entities in the past - is a pattern and practice of out-of-control billing by outside firms that will make you more ill than when you first heard about the $1,500 toilet seat on Airforce I.


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