CASE UPDATE: Supreme Court Upholds Officer’s Right to Qualified Immunity in Kisela v. Hughes

By: James R. Greiner, Of Counsel

On April 2, 2018, the US Supreme Court ruled in Kisela v. Hughes, Case No. 17-467 (April 2, 2018), a case out of Arizona and the Ninth Circuit, that the defendant Officer was entitled to qualified immunity in a case alleging excessive force by firing a weapon, reversing the decision of the Ninth Circuit and effectively affirming the decision to grant summary judgment of the District Court.

Petitioner Officer Andrew Kisela and two other officers had arrived on the scene after hearing a police radio report that a woman was engaging in erratic behavior with a knife. This report had been called in by a concerned neighbor. Upon arrival, the officers saw one woman, Sharon Chadwick, standing next to a car in the driveway of a nearby house, with a chain-link fence and a locked gate separating the officers from the woman. Respondent Amy Hughes, who matched the description of the woman seen engaging in erratic behavior with a knife, emerged from the house carrying a large kitchen knife at her side and approached within six feet of Chadwick.  All three officers on scene drew their guns.  At least twice the officers told Hughes to drop the knife. Chadwick said to both Hughes and the officers to “take it easy.” Hughes appeared calm, but she did not acknowledge the officers’ presence or drop the knife.  Officer Kisela shot Hughes four times. The officers jumped the fence, handcuffed Hughes, and called the paramedics. Hughes was taken to the hospital. The time between the moment the officers saw Chadwick in the driveway to the moment Hughes was shot was less than a minute.

The Court used Tennessee v. Garner, 471 US 1 (1985) and Graham v. Conner, 490 US 386, 396 (1989) for the general principles: (1) “[w]here the officer has probable cause to believe that the suspect poses a threat of serious physical harm, either to the officer or to others, it is not constitutionally unreasonable to prevent escape by using deadly force”; (2) the ‘reasonableness’ of a particular use of force must be judged from the perspective of a reasonable officer on the scene, rather than with the 20/20 vision of hindsight”; and (3) “[t]he calculus of reasonableness must embody allowance for the fact that police officers are often forced to make split-second judgments—in circumstances that are tense, uncertain, and rapidly evolving—about the amount of force that is necessary in a particular situation.”

In holding Kisela did not violate clearly established law by firing his weapon at Hughes, the majority pointed to the fact that Hughes had been holding a large knife and had moved to stand within feet of Chadwick. Hughes did not respond to at least two commands by the three officers to drop the knife. And the officers had mere seconds to evaluate the threat Hughes posed to Chadwick. A neighbor had been concerned enough about Hughes’ behavior to call the police and then flag down the officers when they arrived on the scene, indicating Hughes was dangerous.

The Court pointed to Blanford v. Sacramento County, 406 F.3d 1110 (C.A.9 2005) as on point Circuit precedent. In that case, the police responded to a call regarding a man walking through a residential area swinging a sword and acting erratically. After the man was commanded to drop his weapon and he failed to do so, the man was shot. The police in that case believed, as Kisela did here, that the man posed an immediate threat to others nearby. The Court of Appeals determined the officer’s use of force in Blanford did not violate the Fourth Amendment, and based on that decision, a reasonable officer could have believed the same result would occur in this case.

The Supreme Court declined to decide whether a Fourth Amendment violation occurred since the officer was entitled to qualified immunity, noting “qualified immunity for public officials protects all but the plainly incompetent or those who knowingly violate the law.”  The opinion stated, “[t]his was far from an obvious case in which any competent officer would have known that shooting Hughes to protect Chadwick would violate the Fourth Amendment.”

Added 5.8.18

UPDATE AKK CASE Spotlight: Richards v. Prieto

By: John A. Whitesides, Principal Associate

In June 2017, the U.S. Supreme Court, with two justices dissenting, decided not to review a 2016 decision by the Ninth Circuit (824 F.3d 919) upholding California’s delegation of discretion to local sheriffs regarding issuance of concealed gun carry permits.  In two cases, one against San Diego County Sheriff Gore (Peruta) and one against Yolo County Sheriff Prieto (Richards), the plaintiffs challenged, as violating their Second Amendment right to carry arms, the Sheriffs’ requirements of extraordinary need for public carrying of a weapon under clothing.  The 11 judge Ninth Circuit panel upheld the district courts’ summary judgments for the sheriffs on the ground that the Second Amendment doesn’t preserve a right to concealed carry outside the home, and the Ninth Circuit expressly declined to address the plaintiffs’ contention that, without the ability to openly carry firearms, they had no means to publicly carry guns at all.

Many states and a number of law enforcement groups joined in the plaintiffs’ request for Supreme Court review of this provocative and important issue.  The plaintiffs also argued that the Ninth Circuit’s decision conflicted with that of the Seventh Circuit in a decision issued several years before, which stated a Second Amendment right to public carry did exist. So, why did the Court refuse to consider the case?  Although there is no way to know for sure, several explanations are possible: (1) the plaintiffs neither tried to openly carry guns, nor indicated a desire to do so, which rendered problematic their ability to argue California law foreclosed that means of self-defense; (2) contrary to the strong colonial basis for keeping guns in the home that led to the Court’s invalidating of the District of Columbia’s gun control laws in the Heller decision, the presence of a historically-recognized right to carry guns in urban areas is far less clear, and the plaintiffs acknowledged to at least some degree that California doesn’t generally ban open carrying of guns outside city limits; (3) even if a constitutional right to carry within city limits exists, California allows open carry of guns in many places, subject to landowner consent and being unloaded in public areas, rendering the issue far more complicated than was so with D.C.’s almost universal ban on handgun possession in Heller; or (4) for whatever reason, the Court had over the last five years refused to hear similar challenges to public gun carry laws in New York, New Jersey, and Maryland, suggesting its essential disinterest in tackling this issue.

Judges Thomas and Gorsuch felt the Court should have taken the case because: (a) California largely prohibits open carry (a debatable and subjective conclusion); (b) the plaintiffs had consistently argued for the general right to carry guns in public rather than for concealed carry per se (which is true but didn’t address their pre-suit conduct on which standing turns), and (c) that “carrying” a gun must mean away from home (likely so, but that doesn’t address the urban v. rural issue).  The dissent provides some clues as to the majority’s reasoning by saying “Even if other Members of the Court do not agree that the Second Amendment likely protects a right to public carry . . . “ which comports with factors  2 and 4, above.

Added 10.11.17

CALIFORNIA PUBLIC RECORDS ACT CASE ALERT: Los Angeles Cnty. Bd. Of Supervisors v. Sup. Ct. –Privacy Privilege in Attorney’s Legal Invoices (Mostly) Trumps Public’s Interest in Transparency

By: Sean D. O’Dowd, Associate

The “irresistible force paradox” contemplates the outcome of an unstoppable force meeting an immovable object.  In the end, the paradox illustrates that there cannot be both an immovable object and an unstoppable force; one must yield to the other.

Recently, the irresistible force paradox played out in the California Supreme Court, which decided, in paradoxical terms, “what happens when the attorney client privilege meets the California Public Records Act?”  Which will yield?  As it turns out, neither proved to be immovable or unstoppable, although between the two, the attorney-client privilege prevailed.

The California Supreme Court held that:

“[T]he attorney-client privilege does not categorically shield everything in a billing invoice from PRA disclosure. But invoices for work in pending and active legal matters are so closely related to attorney-client communications that they implicate the heartland of the privilege. The privilege therefore protects the confidentiality of invoices for work in pending and active legal matters.”

The Court reasoned that “[t]he imperative of protecting privileged communications between attorney and client—and thereby promoting full and frank discussion between them—is a defining feature of our law.”  However, the Court hedged on giving the attorney-client privilege complete immovable object status, stating that “t]his imperative does not require us to conclude—as the Court of Appeal did here—that everything in a public agency’s invoices for legal services is categorically privileged. Instead, the contents of an invoice are privileged only if they either communicate information for the purpose of legal consultation or risk exposing information that was communicated for such a purpose. This latter category includes any invoice that reflects work in active and ongoing litigation.”

After the decision in Los Angeles Cnty. Bd. Of Supervisors v. Sup. Ct., neither the attorney-client privilege nor the Public Records Act achieved immovable or unstoppable status.  Between the two, however, the attorney-client privilege prevailed largely intact, meaning that municipalities will likely be able to shield their invoices for legal work in active and ongoing litigation.

Added: 10.25.17

Thus, a national resolution of whether a right exists to carry guns in public places must await another case, and likely also a different Supreme Court.

By: Amie McTavish, Senior Associate

County of Los Angeles v. Mendez: “There is no need to dress up every Fourth Amendment claim as an excessive force claim.”

By: Amie McTavish, Senior Associate

The U.S. Supreme Court reverses in part and remands a bench-trial decision that used the 9th Circuit’s provocation rule to establish liability for an otherwise good shoot

Facts: The Los Angeles County Sheriff’s Department received information from a confidential informant that a potentially armed and dangerous parolee-at-large was at a particular residence.  Deputies went to the residence to look for him. The property consisted of a main house and some shacks in the back yard area. While some deputies searched the main house, Deputies Conley and Pederson searched the back of the property. The deputies opened the door of a shack without a search warrant and without announcing their presence. Startled, Mendez, who had been napping with his girlfriend Garcia, rose from the bed holding a BB gun. Deputy Conley yelled, “Gun!” and the deputies immediately opened fire, shooting Mendez and Garcia multiple times. Garcia was severely injured and Mendez had to have his lower leg amputated as a result of the shooting.

Procedural history: Mendez and Garcia sued Deputies Conley and Pederson and Los Angeles County pursuant to 42 U. S. C. §1983, advancing three Fourth Amendment claims: 1) warrantless entry, 2) knock-and-announce, and 3) excessive force. A bench trial was held.  The district court awarded nominal damages on the first two claims, and found that the use of force was reasonable.  However, the Court applied the “provocation rule” articulated in the Billington case in order to find the officers liable for the otherwise justified shooting. (See Billington v. Smith, 292 F. 3d 1177, 1189 [“[W]here an officer intentionally or recklessly provokes a violent confrontation, if the provocation is an independent Fourth Amendment violation, he may be liable for his [subsequent,] otherwise defensive use of deadly force”].) Based on this rule Mendez and Garcia were awarded around $4 million in damages. The officers appealed. The Ninth Circuit held that the officers were entitled to qualified immunity on the knock-and-announce claim, but violated clearly established law on the warrantless entry claim.  The use of the “provocation rule” to establish liability was affirmed. The Court also held that proximate cause would also support liability on the excessive force claim for the illegal entry even without the provocation rule.

Holding:  In a relatively short opinion, authored by Justice Alito and joined by all members of the Court except Gorsuch (who took no part in consideration or decision of the case) the Supreme Court reversed the fifteen-year-old holding in Billington that allowed Plaintiffs in the Ninth Circuit to piggyback excessive force claims onto other 4th amendment claims. The Court held there is no basis in the Fourth Amendment for the “provocation rule.” The Ninth Circuit’s previously sharply-criticized “provocation rule” was judged to be fundamentally flawed. The Court’s opinion provided, “The rule’s fundamental flaw is that it uses another constitutional violation to manufacture  an  excessive force claim where one would not otherwise exist.”  A  different  Fourth  Amendment  violation  cannot  transform  a  later,  reasonable  use  of  force  into  an  unreasonable seizure. The Court pointed out it is well-settled that the exclusive framework for analyzing whether the force used during a seizure is set forth in Graham v.  Connor, 490 U.S. 386 (1989).  The force used is to be evaluated objectively: when an officer carries out a seizure that is reasonable when taking into account all relevant circumstances, there is no valid excessive force claim. Each claim must be analyzed separately. Once a use of force is deemed reasonable under Graham, it may not be found unreasonable by reference to some separate constitutional violation.  The court also criticized the use of proximate cause to bootstrap the excessive force claim, finding only a “murky causal link” between the warrantless entry and the shooting. Finally, although the reasonableness of a search or seizure is almost always based on objective factors, the provocation rule looks to the subjective intent of the officers carrying out the seizure, which is an “unwarranted and illogical expansion of Graham.”

Comments:  In our practice, we have encountered this “provocation rule” theory as a way for civil rights Plaintiffs to plead around the well-settled reasonableness standard, expanding the liability exposure of law enforcement officers. In doing away with the  Ninth Circuit’s provocation rule, the Supreme Court was highly critical of what it sees as a “means justifying the end” approach to excessive force cases, stating that while “it is important to hold  law enforcement officers liable  for  the  foreseeable  consequences  of  all  of  their  constitutional  torts . . . there  is no  need  to  distort  the  excessive  force  inquiry  in  order  to accomplish  this  objective.”

While the Court leaves open the possibility of a proximate cause analysis, in this case the officers were not liable for the failure to knock and announce because they were entitled to qualified immunity – a powerful tool in the defense’s arsenal. Therefore the Ninth Circuit’s analysis it was reasonably foreseeable that by making a “startling entry,”  “barging into” a home “unannounced” would result in violence, could not serve as the basis for liability.

Going forward, plaintiffs cannot merely use the provocation rule as a boot strapping device when there is a use of force following a constitutional violation such as an illegal entry or an unlawful seizure. Instead, a careful proximate cause analysis must be done after the first unconstitutional act is determined. If the subsequent use of force is reasonable standing on its own, there will be no liability absent a finding there was a real and articulable “but for” causation attributable to the first act.  Principles of foreseeability and the significance of superseding/intervening acts can also be used to cut off liability–legal defenses previously unavailable under the simplistic “provocation rule.”

This decision should mollify those in law enforcement and those of us who defend them that the Ninth Circuit’s expansion of liability made by its “provocation rule” has been deflated, and the standard remains that an excessive force analysis is based on the objective reasonableness of the officers’ actions given the totality of circumstances.

Added: 6.5.17

California Employers Charged with Accommodation in the Second Degree

By: Kristin Blocher, Of Counsel

In August, the California Court of Appeal for the Second District published the first case in California determining that California’s Fair Employment and Housing Act (“FEHA”) affirmatively requires employers to reasonably accommodate employees who are associated with a disabled person. The decision in Luis Castro-Ramirez v. Dependable Highway Express Inc. (2d App. Ct. No. B261165, B262524) applies the FEHA requirement to reasonably accommodate employees with disabilities, to those associated with disabilities by defining the term “disability” to include an employee who suffers as a result of his or her association with a disabled person — in this case, a father who could not work nights because he had to administer his son’s dialysis in the evenings.


Plaintiff’s son required daily dialysis at night and Plaintiff was the only person who could administer the treatment.  When Plaintiff first interviewed with Dependable Highway Express, Inc. (DHE), he informed the company he could not work nights as he had to attend to his son’s medical needs.  DHE accommodated Plaintiff’s request to work during the day from 2010-2013.  In 2013, a new supervisor who knew of Plaintiff’s scheduling needs scheduled Plaintiff for a later shift that would not permit him to be home in time to take care of his son. Plaintiff complained to the supervisor about the schedule to no avail. Plaintiff later complained to his former supervisor who had accommodated him for three years before taking a promotion. The former supervisor mentioned Plaintiff’s situation to the current supervisor.  The supervisor nonetheless proceeded to schedule Plaintiff for a shift that would not allow Plaintiff to be home on time. Plaintiff asked for a different shift or to take the day off. The supervisor told Plaintiff if he did not take the shift that day, he would be fired. Plaintiff apologized but said he could not take the shift. Plaintiff returned to work for three consecutive days stating his desire to work. After three days, the supervisor terminated Plaintiff and told him he “had quit by choosing not to take the assigned shift.”  According to the opinion, there was no reason the supervisor could not have given Plaintiff an earlier shift, and the supervisor lied about a customer’s request for Plaintiff to be put back on his previous shift.

Plaintiff argued that DHE improperly fired him for requesting an accommodation to care for his disabled son.  The trial court granted DHE’s motion for summary judgement, and Plaintiff appealed.


The Second District Court of Appeal applied the language in FEHA regarding the duty to accommodate a person with a disability to FEHA’s provision prohibiting associational discrimination. The Court reasoned that FEHA’s duty to accommodate states it is unlawful for an employer “to fail to make a reasonable accommodation for the known physical or mental disability of an applicant or employee.” FEHA also explicitly prohibits associational discrimination.  Despite the statute’s language limiting the duty to accommodate to employees and applicants, the Court stated “an association with a physically disabled person is itself a disability.”  The Court determined because FEHA requires employers to reasonably accommodate disabled employees, and those associated with the disabled are themselves disabled, FEHA requires employers to reasonably accommodate those associated with the disabled.

Regarding Plaintiff’s retaliation theory, the Court rejected DHE’s reliance on Rope v. Auto-Chlor Sys. of Washington, 220 Cal. App. 4th 635 (2013) to argue a request for reasonable accommodation can never constitute protected activity.  The Court noted Rope was overruled on that point by A.B. 987, which went into effect January 1, 2016, amending FEHA to clarify it is unlawful for an employer to retaliate or otherwise discriminate against a person for requesting a reasonable accommodation, regardless of whether the employer granted the request. The Court also found Rope distinguishable because Plaintiff’s “repeated complaints about the sudden changes to his schedule represented ‘some degree of opposition’ to DHE’s failure to continue to provide that schedule.”  The Court emphasized employees need not use specific “legal terms or buzzwords when opposing discrimination.”  Rather, employees engage in a protected activity by communicating concerns of unlawful activity.


Employers should proceed cautiously with any employee request that could be interpreted as a request for accommodation. It is unclear from the opinion whether the duty to accommodate a person associated with a person who has a disability extends beyond the parent-child relationship.  And stay tuned: the Court has already granted a petition for re-hearing on whether the A.B. 987 amendments were properly applied. (Rehearing granted April 2016.)

Added: 11.17.16

To Test Breath or Blood, That Is the Question

By: Bruce Kilday, Partner, and Amie McTavish, Senior Associate

Recently, the US Supreme Court held in Birchfield vs. North Dakota, 136 S.Ct. 2160  (June 23, 2016) that the Fourth Amendment permits warrantless breath tests incident to arrests for drunk driving but not warrantless blood tests. Every state has what are termed “implied consent laws” which impose penalties on motorists who refuse to undergo testing when there is sufficient reason to believe they are violating the State’s drunk-driving laws.  In California, we have Vehicle Code §23612. If pulled over, the officer must advise the driver he has the right to refuse the test but that refusal may result in a fine, a suspended license, and jail time if convicted for a DUI later.

This opinion decides three driving under the influence cases that challenged this implied consent scheme. In the first case, Birchfield vs. North Dakota, Daniel Birchfield crashed his car into a ditch and was arrested for driving under the influence.  He blew a .254 BAC into the (non-evidentary) roadside breath test. However he refused to provide a chemical test.  He plead guilty to refusing to provide a blood sample and appealed arguing the refusal law violated his Fourth Amendment right against unreasonable searches. In Bernard v. Minnesota, William Robert Bernard was arrested for driving under the influence after he got his truck stuck in mud while trying to pull a boat onto land.  Bernard refused to provide a breath sample and was prosecuted for refusing to provide a chemical test.  In Beyland v. North Dakota Dept. of Transp., Steve Michael Beyland was stopped for driving erratically and exhibiting signs of intoxication.  He was arrested for driving under the influence.    Beyland gave a blood sample that showed his BAC was .25 after police read him North Dakota’s Implied Consent law advising him it was a crime to not provide a chemical test.    He argued his consent to provide the blood test was coerced because he consented only to avoid being charged with the offense of refusing to provide a chemical test.


The U.S. Supreme Court determined there is a difference between blood tests and breath tests for Fourth Amendment purposes. In the court’s majority opinion, Justice Sam Alito writes that criminalizing the refusal of a warrantless breath test is not unconstitutional because breath tests are minimally invasive and to declare them unconstitutional would put too great a burden on local courts, which would be inundated with requests for warrants for the tests. But Alito writes that criminalizing the refusal of a blood test is not constitutional because blood tests are significantly more invasive, and besides the state already has the breath tests available to them. The Court held that police do not need warrants to obtain breath tests from drunk drivers because they are non-invasive and communicate only the BAC in the driver’s system.[1] The Court also determined criminalizing refusal to submit to a breath test is designed to serve the government’s interest in preventing drunk driving, which is greater than merely keeping currently drunk drivers off the roads, and does so better than other alternatives. However, the same rationale did not apply to criminalizing refusal to submit to a blood test because of the greater degree of intrusion and the available alternative of the breath test. Motorists may not be criminally punished for refusing to submit to a blood test based on implied consent.  The Court reasoned that it is one thing to approve implied-consent laws that impose civil penalties and evidentiary consequences on motorists who refuse to comply, but quite another for a State to insist upon an intrusive blood test and then to impose criminal penalties on refusal to submit.


Justice Sonia Sotomayor (a former Dep. District Attorney) wanted to go further and strike down laws criminalizing the refusal of breath tests as well. In her partial concurrence and partial dissent, she argued that a categorical rule allowing warrantless breath tests incident to arrest was unnecessary to protect the government interest of preventing drunk driving because at that point the driver is off the road and a warrant could be obtained if necessary. Justice Clarence Thomas wrote a separate opinion concurring in the judgment in part and dissenting in part, arguing that the search-incident-to-arrest exception to the Fourth Amendment’s warrant requirement should apply to all blood alcohol tests, including blood tests. He argued that by drawing an arbitrary line between blood tests and breath tests, the majority destabilized the law of exceptions to the warrant requirement and made the jobs of both police officers and lower courts more difficult.


What does this mean to law enforcement in the field?  A look at the standard CHP DUI Investigation Report  contains the language under the “Preliminary Alcohol Screen Information” that “……if arrested, you will be required to give a sample of our blood, breath, or urine for the purpose of determining the actual alcoholic content of your blood.”   This admonition is no longer accurate, and should be limited to a breath test. Moreover, officers are still required to give the Trombetta Advisement that the breath sample is not retained for later analysis, and if the arrestee wants an evidentiary sample retained for re-testing, a blood sample must be given.

 What about driving under the influence of something other than alcohol, or some other crime?  This decision means that if a blood sample is desired, the officer must get consent, must get a warrant, or must establish an exception to the 4th Amendment warrant requirement.

Courts expect officers to take advantage of modern communications to expedite a judge’s consideration of a warrant application, e.g. PC §1526(b).  So, courts clearly prefer officers to get a warrant before any non-consensual blood draw, and you must be prepared to demonstrate exactly why it was not practicable to wait for a judge to review the case and issue a warrant.

There is an exception to the warrant requirement if “there is a compelling need for official action and no time to secure a warrant.”  Michigan v Tyler, 436 U.S. 499, 509 (1978).  Courts look to the totality of circumstances and evaluate each alleged exigency based “on its own facts and circumstances.” Missouri v McNeely, 133 S.Ct. 1552, 1559 (2013) (quoting Go-Bart Importing v U.S. 282 U.S. 344, 357 (1931)). In People v Thompson (2006) 38 Cal. 4th 811, the California Supreme Court ruled exigent circumstances existed to justify the warrantless entry into a home to seize the suspect in a DUI, noting both the danger of dissipation of evidence and the risk of corruption of evidence if the suspect took advantage of a delay (to get a warrant) and consumed more alcohol, or merely claimed to have done so.

The fact that alcohol metabolizes in the bloodstream is well-accepted by courts, but does not justify a blanket exception to the warrant requirement.  McNeely, 133 S.Ct. at 1563.  Instead an officer who wants to compel a suspect to give a blood sample without a warrant must be able to show “the delay necessary to obtain a warrant, under the [particular] circumstances, threatened the destruction of evidence.”  Schmerber v California, 384 U.S. 757, 770 (1966).  The officer must also show the desired evidence could not be obtained in some less intrusive manner, e.g. a breath test.  Thus, the use of a DRE trained officer to show the reasonable likelihood of drugs, instead of mere alcohol, could be valuable in demonstrating both need and exigency.

What are the consequences of failing to obtain a warrant before compelling a blood sample?  In addition to the possible suppression of the blood evidence, the arrestee can file a lawsuit against the officer and the agency for violation of his civil rights under §1983.  This is not merely an abstract possibility – AK&K has defended two federal cases in which blood samples were taken without benefit of a warrant or consent.  Each plaintiff sought punitive damages from the individual officer.  Interestingly, neither case involved a DUI arrest.  Both were arrests for burglary and the sample was compelled because the officer believed the suspect was under the influence of drugs.  One suspect fought and required 4 officers to hold him down during the blood draw.  We persuaded each jury that the blood sample was needed to show whether or not the suspect was able to form the specific intent element of a burglary.  Of course, we also proved it was reasonable for the officer to believe the evidence would dissipate before a warrant could be obtained.


  • No warrant is needed to obtain a breath test in a DUI arrest.
  • Officers should still give the Trombetta advisement that any re-testing of a sample would require a blood sample be obtained.
  • A blood test requires consent, or a warrant, or an exception to the warrant requirement. Officers should be familiar with the procedures for getting a warrant after hours.
  • If an officer wants a blood test without consent or a warrant, the officer must show a real exigency exists (i.e. that it’s reasonable to believe a delay caused by getting a warrant threatens the destruction of evidence).
  • Failure to obtain a warrant risks exclusion of evidence or a civil rights lawsuit.

[1] Since the purpose of obtaining this breath test is to provide evidence of possible DUI, it is reasonable to assume the Supreme Court is referring to a breath test that would be admissible in a criminal proceeding, i.e. a Breathalyzer instead of a PAS device.

PIT Stop: Court Deference to Law Enforcement in Vehicle Pursuit Cases

By: Sean D. O’Dowd, Associate

In Scott v. Harris, 550 U.S. 372, 386 (2007), the United States Supreme Court stated that “[a] police officer’s attempt to terminate a dangerous high-speed car chase that threatens the lives of innocent bystanders does not violate the Fourth Amendment, even when it places the fleeing motorist at risk of serious injury or death.”[1]  Since then, District Courts within the 9th Circuit have been apt to grant summary judgment motions against individuals whose pursuits were terminated via the precise immobilization technique, or “PIT” maneuver.  The message to fleeing motorists seems relatively clear: the courts are not sympathetic to those who run from the cops.

For example, in Newport v. City of Sparks, No. 312CV00621MMDWGC, 2016 WL 1248723, at *1 (D. Nev. Mar. 28, 2016), the United States District Court for the District of Nevada granted summary judgment in favor of the defendant police officers against a plaintiff “arrested for suspected vehicle theft after he attempted to evade law enforcement in a vehicle.”  The plaintiff was injured as the result of a vehicle collision initiated after the officers employed a PIT maneuver.  Plaintiff alleged the force used to arrest him was excessive “in violation of the Fourth Amendment.”

In finding the use of a PIT maneuver reasonable, the court stated, “It is undisputed that [the plaintiff] was fleeing law enforcement in his vehicle and driving at high speeds . . . Therefore  . . . [police] were within the bounds of appropriate force” by using a PIT maneuver.  In reaching its decision, the court relied heavily on Scott.

In another Nevada case, Carrillo v. Las Vegas Metro. Police Dept., No. 2:10-CV-02122-JAD, 2014 WL 585971 (D. Nev. Feb. 14, 2014), the court granted the defendants’ Motion for Summary Judgment after finding the officer’s PIT maneuver reasonable.  In that case, officers pursued a vehicle that failed to yield for a traffic stop.  At various times during the pursuit, the vehicle’s driver accelerated to speeds exceeding the posted limit, crossed center dividers, turned off his headlights, and drove on the wrong side of the road.  As a result, one of the pursuing officers executed a PIT maneuver, which caused the driver to lose control of his vehicle.  The vehicle was then broadsided by another car, killing the fleeing driver.

The Court in Carillo pointed to the “sensible rule” articulated in Scott, that a “police officer’s attempt to terminate a dangerous high-speed car chase that threatens the lives of innocent bystanders does not violate the Fourth Amendment, even when it places the fleeing motorist at risk of serious injury or death.”  Scott, 550 U.S. at 386.  The Court found the chase “followed the Scott motorist’s playbook” and that no reasonable jury could conclude the driver’s actions posed anything but a substantial and immediate risk of serious physical injury to others.

In a 2011 case from Arizona, Almaraz v. City of Mesa, No. CV 10-1348-PHX-FJM, 2011 WL 3759487 (D. Ariz. Aug. 25, 2011), the District Court did not “question the officers’ decision to execute a PIT after [the fleeing driver] showed continuing disregard for law enforcement.”  There, the driver initially fled after officers yelled at the driver to stop.  After being located in a neighboring parking lot, the driver again fled, after hitting the front of an officer’s vehicle, and causing the officer to “jump out of the way of getting hit.”  The vehicle then continued for several miles driving recklessly, ignoring the officers’ lights and sirens, and running at least one red light.  Believing the vehicle to be a danger, the officers decided to execute a PIT maneuver, and struck the fleeing vehicle twice.  The court found that such a maneuver was not unreasonable under Scott.

This sample of cases indicates that courts in the Ninth Circuit will grant great deference to law enforcement when using force against a fleeing motorist whose actions threaten the lives of innocent bystanders.  In doing so, the courts have indirectly sent a message to those who would flee from the police: run at your own risk.

[1] Link to a video of the police pursuit in Scott:


PERSONAL INJURY CASE ALERT: USPENSKAYA V. MELINEPotential Reduction of Past Medical Billings After MedFin Lien Purchases

By: Kevin Dehoff, Associate

In Uspenskaya, an uninsured plaintiff was involved in a significant motor vehicle accident. She entered into contractual agreements with her medical providers, Sutter Hospital and Dr. Philip Orisek, to have her medical treatment provided in exchange for a lien on any recovery obtained from defendant in her lawsuit. Prior to trial, a third party assignee, MedFin Managers, LLC (MedFin), purchased the liens for a greatly discounted sum but plaintiff continued to remain responsible for the entire amount.

Defendant’s trial motion to admit evidence of the amount MedFin paid for the medical liens was denied. The jury returned a sizable verdict of $429,773.71, including $261,773.71 in past medical specials, which was the full amount of plaintiff’s medical bills. Defendant appealed arguing that evidence of MedFin payments was admissible to establish the reasonable valuation of plaintiff’s medical expenses.

A plaintiff may recover as economic damages no more than the reasonable value of the medical services received and is not entitled to recover the reasonable value if his or her actual loss was less. (Howell v. Hamilton Meats & Provisions, Inc. (2011) 52 Cal.4th 541, 555.) In other words, damages for past medical expenses are limited to the lesser of (1) the amount paid or incurred for past medical expenses and (2) the reasonable value of the services. (Corenbaum v. Lampkin (2013) 215 Cal.App.4th 1308, 1325-1326.)

The Court discussed the opinion in Katiuzhinsky v. Perry (2007) 152 Cal.App.4th 1288, 1291, which held that “[t]he intervention of a third party in purchasing a medical lien does not prevent a plaintiff from recovering the amounts billed by the medical provider for care and treatment, as long as the plaintiff legitimately incurs those expenses and remains liable for their payment.” However, in Uspenskaya, the defendant was not arguing that the amount MedFin paid for plaintiff’s liens should reduce her total medical bills under Howell, but that the amount a medical provider accepts from a non-insurer third party is admissible as evidence of the reasonable value of the services. In fact, the Katiuzhinsky Court noted, “Nothing in our decision should be taken to mean that evidence a health care provider subsequently sold its bill to MedFin is inadmissible. (Katiuzhinsky, supra, 152 Cal.App.4th at p.1298.)

In affirming the ruling of the trial court denying the introduction of the evidence, the Court noted MedFin’s purchase price may represent a reasonable approximation of the collectability of the debt rather than the reasonable approximation of the value of the plaintiff’s medical services. However, the Court left open the possibility evidence concerning the value of MedFin payments could be admissible with some additional evidence showing a nexus between the amount paid by MedFin and the reasonable value of the medical services. This was not done in Uspenskaya but could potentially be undertaken in other cases.

For instance, the trial court’s opinion highlighted that the defense could retain an expert witness to opine regarding the reasonableness of the amount paid by Medfin for the medical services provided to a plaintiff. The trial judge explained the expert could testify as to what the medical providers accepted and that it was reasonable because he or she evaluated what was charged by other providers in the region.

In sum, uninsured or insured plaintiffs treating under a lien agreement, which liens are later sold to Medfin at a discounted rate, continue to pose problems as the significant past medical damages award in Uspenskaya reflects. However, this opinion expands upon Katiuzhinsky without contradicting it, and potentially gives the defense the ability to introduce into evidence the highly discounted amount MedFin and other factors pay medical providers whose treatment of plaintiffs are secured by litigation liens.

CASE UPDATE: You Cannot Authorize Your Own Arrest

By: Amie McTavish, Associate

On August 14, 2015 in the case of Demuth v. Los Angeles County, the Ninth Circuit Court of Appeals held that a Los Angeles County sheriff’s deputy may be held liable for wrongfully arresting Deputy Public Defender Florentina Demuth after she willfully ignored a judicial demand she come to court.

At around 9 a.m. Public Defender Demuth checked into the courtroom where her client’s case was to be heard and then went to her office (located in the courthouse) to do other work. She indicated she did not intend to return to the court until approximately 1:30. A short while after Demuth left the courtroom, Referee Shirley asked the Courtroom deputy, Li, to page Ms. Demuth so that her client’s case (one of 53 to be heard before 2pm) could be called. The case had to be heard that day. Deputy Li paged Demuth several times – Demuth heard the page, but did not respond. The Deputy also telephoned Demuth’s direct line, but she ignored the ringing. “This was not unusual,” Kozinski wrote. “Lawyers, especially public defenders, were often absent from the courtroom when their case was called, and it typically took some time — and a few pages — to get them there.” At around 9:45 an obviously frustrated Referee Heidi Shirley declared: “I order Ms. Demuth to court. If she refuses, then call Ms. [Patricia] DeLaGuerra-Jones [a supervising deputy public defender] to explain why Ms. Demuth isn’t here.”

Deputy Li found the absent public defender in her office talking to her supervisor. The Deputy told her that she had been called by Referee Shirley, to which Ms. Demuth responded “just a minute,” or words to that effect. After more back and forth, Deputy Li demanded Demuth come immediately. Her response? “If you want me to come right now, you’ll have to arrest me.” Li did just that. A § 1983 lawsuit ensued based on the 11 minute arrest.

A lower court found the deputy had violated Demuth’s 4th Amendment right to be free of unreasonable seizure, but said Deputy Li was entitled to qualified immunity. The 9th Circuit disagreed and reversed.

Li could not reasonably have believed that he had one of the usual Fourth Amendment justifications for the arrest. He had no warrant; Demuth was not suspected of a crime; he was not in hot pursuit or performing a community caretaking function, etc. No reasonable officer could have understood the referee as ordering that Demuth be forcibly brought into court.

Kozinski concluded that while “challenging someone equipped with a badge, handcuffs and a gun to ‘arrest me’ was unwise on Demuth’s part,” the comment did not authorize the arrest: “Demuth was obviously employing a literary device known as sarcasm.”

The moral of the story? Here the public defender, although being disrespectful and lackadaisical, had not committed any crime. The judge, who was undeniably frustrated, had not ordered her to be arrested. Everyone acted poorly and the public defender obviously baited the deputy. Yet, every arrest must be supported by the Fourth Amendment and the officer must make the determination an arrest is justified, even when taunted to do so.  The Ninth Circuit concluded, “no one in this case has covered himself with glory . . . The dispute should have been resolved by an admission that the deputy violated Demuth’s constitutional rights, followed by mutual apologies and a handshake, saving the taxpayers of Los Angeles County the considerable costs of litigating this tiff.”

CASE UPDATE: Supreme Court Decides Legal Standard for Pretrial Detainee Excessive Force Cases

By: Lance M. Martin, Associate

In Kingsley v. Hendrickson, the Supreme Court resolved a circuit court split and determined the legal standard that applies to the conduct of police officers accused of using excessive force on suspects being held in pre-trial detention.   In 2010, Michael Kingsley was being held at Monroe County Jail on drug charges as a pretrial detainee in Sparta, Wisconsin. Kingsley repeatedly refused orders to remove a taped paper covering the light fixture above the bed in his cell. After Kingsley failed to comply with orders for removal from his cell, the officers handcuffed Kingsley, forcibly removed him from his cell, carried him to a receiving cell, and placed him face down on a bunk. Although it is disputed whether Kingsley resisted the officers efforts to remove the handcuffs, all agree an officer placed his knee on Kingsley’s back and another officer stunned Kingsley with a taser in the back for 5 seconds. Kinglsey sued alleging the officers’ actions violated his civil rights under the Fourteenth Amendment’s Due Process Clause which protects detainees from excessive force.

In a 5-4 decision, the Supreme Court held that under 42 U.S.C. 1983, a pretrial detainee (whether pre-arraignment or post-arrangement) need only show that the force purposely or knowingly used against him was “objectively unreasonable” in order to prevail. The Court made clear the standard is not easily met as the analysis focuses on “the perspective of a reasonable officer on the scene, including what the officer knew at the time, not with the 20/20 vision of hindsight.” Additionally, the objective inquiry must also take full consideration of the jail’s need for “internal order and discipline.” The Court provided a range of non-exhaustive considerations relevant to the inquiry, including: “the relationship between the need for the use of force and the amount of force used; the extent of the plaintiff’s injury; any effort made by the officer to temper or to limit the amount of force; the severity of the security problem at issue; the threat reasonably perceived by the officer; and whether the plaintiff was actively resisting.”

Objective reasonableness is already the legal standard that applies for claims of excessive force during arrests under the Fourth Amendment. Therefore, actions of officers in the street and in a jail are now evaluated under the same lens. However, the distinction between pretrial detainees and convicted prisoners is significant. A convicted inmate must go beyond the objective standard in an excessive force claim and must also prove that the officer was deliberately indifferent to the inmate’s health and safety because the cruel and unusual punishment standard of the Eighth Amendment applies. This distinction will be essential for officers in jails as convicted inmates are serving longer sentences in a county jail rather than a state prison.

AKK CASE Spotlight: Richards v. Prieto, Case No. 11-16255

By: John A. Whitesides, Principal Associate

National, state, and local firearm rights and firearm control proponents are focused on two cases awaiting decision by an 11 judge panel of the United States Court of Appeals for the Ninth Circuit. In Richards v. Prieto and Peruta v. County of San Diego, the plaintiffs allege a Second Amendment right to carry concealed firearms in public, and that county sheriffs cannot defeat the right by requiring proof, beyond a general desire for self-defense, of a need for such protection. In turn, the sheriffs contend the Constitution does not confer a right to carry concealed weapons in public places, especially within cities, so to require local law enforcement officials to issue concealed carry permits. The federal district courts agreed with the sheriffs, but by a 2-1 decision issued in early 2014, a three-judge panel of the Ninth Circuit reversed those judgments, finding such a right exists given California’s gun control laws.

Yolo County Sheriff Prieto, represented by Angelo, Kilday, and Kilduff, successfully requested the Ninth Circuit review the split opinion on the grounds it conflicted with other Ninth Circuit and U.S. Supreme Court decisions. The California Attorney General’s office argued in support of the sheriffs during briefing last spring. Hawaii also supported the sheriffs’ position, while Texas and certain other states supported the plaintiffs’ view. Oral argument occurred in June, 2015, and a decision could issue by year’s end. Over the past several years, three circuit courts in the Northeast have upheld similar public carry licensing laws of New York, New Jersey, and Maryland. In each instance, the U.S. Supreme Court refused that plaintiff’s request to address the issue.

To listen to AKK’s John Whitesides’ Ninth Circuit En Banc oral argument:

CASE UPDATE: Poole v. Orange County Fire Authority, Case No. S215300 (August 24, 2015) – The CA Supreme Court Weighs in on the Scope of the Firefighters Procedural Bill of Rights

By: Serena M. Warner, Associate

The Firefighters Procedural Bill of Rights (Cal. Gov. Code § 3250) gives firefighters the right to review and respond to any negative comment “entered in his or her personnel file, or any other file used for any personnel purposes by his or her employer.”   But does this extend to negative comments in a supervisor’s daily log kept solely as a memory aid for that particular supervisor only? The California Supreme Court held no. “[B]ecause the log was not shared with or available to anyone other than the supervisor who wrote the log, it does not constitute a file ‘used for any personnel purposes by his or her employer.’”

Key considerations in determining whether a document falls within the protections of the Firefighters Procedural Bill of Rights:

  • Does the person who prepared or has access to the document have the authority to make personnel decisions?
  • Has the document been shared with anyone with authority to make personnel decisions?
  • Is there a reasonable likelihood that the document will be shared with someone with the ability to make personnel decisions at some time in the future?

If you answered “Yes” to any of these questions, the document is likely covered by the Firefighters Procedural Bill of Rights and thus a firefighter would have the right to review and respond to any adverse comment in the document. Consult your attorney with questions regarding specific documents in question.

CASE UPDATE: Cordova v. City of Los AngelesCausation Does Not Fall Too Far From The Tree

By: Serena M. Warner, Associate

This case stems from a tragic accident in the Eagle Rock neighborhood of Los Angeles. Cristyn Cordova was driving with four passengers when another vehicle veered into the side of her car. Cordova’s car was forced over the curb onto a grassy median, and began spinning out of control. The car struck several magnolia trees planted in the median, approximately seven feet from the inside lane of the road. Cordova and three of the passengers were killed. The fourth passenger was seriously injured.

Cordova’s parents filed an action against the City of Los Angeles alleging the magnolia trees were a dangerous condition of public property because they were planted too close to the travel portion of the road. At the trial court level, the City argued the action should be dismissed because the other vehicle caused the accident, and that plaintiffs could not prove that the magnolia trees caused the other driver to drive recklessly. Summary judgment was granted at the trial court level in favor of the City, and affirmed by the appellate court.

In a decision dated August 13, 2015, the California Supreme Court reversed. Its decision clarified that the statutes pertaining to dangerous conditions (Government Code §§ 830, 835) require a plaintiff to show (1) a dangerous condition existed at the time of the injury and (2) that the injury was proximately caused by the dangerous condition. There is no statutory requirement to prove the events that led to the injury were caused by the dangerous condition. Accordingly, if the magnolia trees were determined to be a dangerous condition of public property and the trees caused the injuries to Cordova and her passengers, the City would be liable for those injuries even though a third party’s negligence began the chain of events that led to the devastating outcome.


City Obligations for Accessible On-Street Parking Under the ADA Absent Regulatory Guidance

By: Kevin Dehoff, Associate

On September 5, 2014, the Ninth Circuit decided Fortyune v. City of Lomita 766 F.3d 1098 (9th Cir. 2014), which continues to have ramifications regarding how public entities provide on-street public parking.

In this important decision interpreting the Americans with Disabilities Act (ADA), Mr. Fortyune, a paraplegic individual, sued the City under the ADA for not having handicapped on-street public parking spaces. He alleged he experienced difficulty, discomfort, and fear for his safety when frequenting facilities in the City because none of the City’s on-street public parking was accessible to people with disabilities. The City moved to dismiss the complaint arguing that absent specific ADA regulations, it was not required to ensure accessible on-street public parking options. Mr. Fortyune argued cities must adopt existing access standards, such as signage on the parking space and that the space be close to an accessible path of travel, to the public on-street parking areas.

The District Court denied the motion to dismiss and the Ninth Circuit affirmed. The Ninth Circuit held that public entities must ensure all government functions, including on-street public parking, are reasonably accessible to disabled persons irrespective of whether the Department of Justice (DOJ) has adopted technical specifications for the particular type of facility or area. It opined that interpreting the ADA otherwise would be inconsistent with its broad mandate that each newly constructed or altered facility be readily accessible.

The immediate impact of the Fortyune ruling is that cities and other governmental entities providing on-street public parking must ensure accessibility to the disabled. Disability access may also apply to other areas beyond on-street parking even absent express access standards. Despite the lack of federal guidance in these situations, a city must still use its best judgment to provide disability access in some form based upon existing regulations. This creates a myriad of problems for a public entity because with no guidance on how to construct a particular facility, the city could potentially be subject to an ADA lawsuit even if it tried to comply.

With respect to on-street public parking at least, relief for cities may be on the way. The DOJ and the U.S. Access Board have been working on promulgating regulations on this very issue for several years, although nothing has been finalized yet. Several proposed technical specifications regarding on-street public parking are described by the Access Board and located on its website. Unlike current regulations developed primarily for buildings and facilities on sites, the proposed accessibility guidelines expressly require on-street accessible parking in the public right-of-way. If finalized, the guidelines will be codified in the Code of Federal Regulations. In the meantime, the proposed guidelines could assist a public entity attempting to comply with the Fortyune decision.



By: Carrie F. McFadden, Partner

On July 6, 2015, the California Supreme Court issued its opinion in People v. Superior Court (Johnson), 2015 Cal. LEXIS 4647 (Cal. July 6, 2015) finding that prosecutors must comply with the Pitchess procedures to obtain access to peace officer personnel files.

By way of background, Brady v. Maryland (1963) 373 U.S. 83 generally obligates the prosecution to disclose to the criminal defendant material evidence favorable to the defendant. As a separate strand of law, the California Supreme Court’s opinion in Pitchess v. Superior Court (1974) 11 Cal.3d 531 (Pitchess) recognizes that criminal defendants can seek discovery from the court of potentially relevant information contained in otherwise confidential peace officer personnel records. These requests are typically referred to as Pitchess motions. If the party bringing a Pitchess motion makes a threshold showing, the court must review the records in camera and disclose any information contained therein that is material to the case. In Johnson, the Court reiterated that although the Brady and Pitchess procedures both employ the terms “material” or “materiality” in describing what must be disclosed, these terms are not used in the same way. In other words, what may be “material” under Brady, and therefore disclosable to the defendant, may not be “material” and disclosable under Pitchess.

In this case, pursuant to its established procedure, the City and County of San Francisco Police Department informed the district attorney that confidential personnel records of two officers who were potential witnesses may contain exculpatory information under Brady. The prosecutor then filed a motion pursuant to Brady and Pitchess requesting that the court review the officers’ files in camera to determine if they contain exculpatory information under Brady. The criminal defendant filed his own motion seeking the court to review the files in camera and also asked the court to order that the Department allow the prosecutor to review the files for Brady material or dismiss the case due to the prosecutor’s failure to comply with Brady.  The trial court denied the prosecutor’s motion and ordered the Department to give the district attorney full access to the personnel files of officers in order to fulfill their Brady obligations to the defendant.

Ultimately the California Supreme court overturned the trial court’s order and held that prosecutors, as well as criminal defendants, must comply with the Pitchess procedures if they are seeking information contained in confidential personnel records. The Court also held that criminal defendants can bring a Pitchess motion to fully protect their due process rights under Brady to obtain potentially exculpatory information in confidential personnel records. To fulfill their Brady obligation, the prosecution need only provide to the defense any information it has regarding what the records might contain (i.e. informing the defense of what the police department had informed the prosecutor about the personnel files of potential police witnesses).

CASE UPDATE: Suspicionless Traffic Stop Delay Is Nothing To Sniff At

Supreme Court Rules Police Cannot Extend Traffic Stop for Dog Search Without Reasonable Suspicion

By: Lance M. Martin, Associate

In Rodriguez v. United States, decided on April 21, 2015, the Supreme Court considered whether an officer, having completed valid traffic stop, could prolong the encounter for a few more minutes to conduct a dog sniff.[1] At 12:06 a.m. on a highway in Nebraska, Officer Struble pulled over Dennys Rodriguez because he saw Rodriguez’s car “briefly veer” onto the shoulder before jerking back onto the road.[2] After issuing a written warning for the traffic violation (and thus concluding the traffic stop), Officer Struble asked Rodriguez if he would mind if Struble’s canine performed a walk-around of Rodriguez’s vehicle. Rodriguez declined. The officer called for backup and conducted the walk-around; drugs were found.

The 8th U.S. Circuit Court of Appeals held that the seven-to-eight minute delay, which allowed the officer to utilize his canine, constituted permissible “de minimus intrusions on Rodriguez’s personal liberty.”[3]  The Supreme Court reversed in a 6-3 decision.

The Court focused on the true “mission” of traffic stops – “ensuring that vehicles on the road operated safely and responsibly,” which includes incidentals such as “checking the driver’s license, determining whether there are outstanding warrants against the driver, and inspecting the automobile’s registration and proof of insurance.” All of these things are legal when the initial stop is valid. In Rodriguez, the constitutional violation occurred when the traffic inquiry turned into a criminal inquiry without reasonable suspicion. Despite its prior ruling that a dog sniff is not a search under the Fourth Amendment,[4] the Rodriguez Court found that a “dog sniff is not fairly characterized as part of the officer’s traffic mission,” but rather “evidence of ordinary criminal wrongdoing.” “Detours” away from the original traffic mission are unconstitutional without independent, reasonable suspicion that a crime has taken place.

Take away: although a dog sniff is not a search under the Fourth Amendment, prolonging a traffic stop to conduct a dog sniff is constitutionally impermissible absent reasonable suspicion.

[1] Rodriguez v. United States, ___ U.S. ___ [135 S.Ct. 1609; 2015 U.S. LEXIS 2807] (2015).

[2] United States v. Rodriguez, 2012 U.S. Dist. LEXIS 123426 (D. Neb. Aug. 30, 2012).

[3] United States v. Rodriguez, 741 F.3d 905, 908 (8th Cir. 2014).

[4] Illinois v. Caballes, 543 U.S. 405 (2005).

NOTE: Nothing in these blog entries is intended to constitute legal advice.  For legal advice please contact an attorney.