"Patrol Towing" Under Vehicle Code §22658 Not

Preempted by Federal Law

Tillison v. City of San Diego, 406 F. 3d 1126 (9 th Cir. 2005)

John Tillison is the owner of West Coast Towing and does patrol towing, a practice involving arrangements between towing companies and owners of private property, frequently apartment complex owners. Under these arrangements, tow operators patrol private parking lots and tow cars that the towing company determines are parked in violation of the parking rules. One of Tillison's drivers was performing a patrol tow when a police officer stopped him for violating Vehicle Code § 22658 and instructed the driver to return the car to the place from which it had been towed. When the driver refused, he was placed under arrest for violation of Penal Code § 148.

Tillison sued for damages and an injunction to prevent the San Diego Police Department from enforcing several Vehicle Code sections on the ground they were preempted by Federal statutes. The district court enjoined enforcement of Vehicle Code § 22658(i)(1) as preempted by the Federal Aviation Administration Authorization Act of 1994, and in accord with Tocher v. City of Santa Ana, 219 F. 3d 1040 (9 th Cir. 2000), holding it was outside the statutory exemption from preemption for state laws which addressed safety concerns.

The United States Court of Appeals, Ninth Circuit, revisited it's holding in Tocher, and recent developments, including the Supreme Court's broader interpretation of the safety exception to the FAAAA, and the California legislature's amending Vehicle Code § 22658. The Court vacated the district court's injunction and remanded the case for entry of judgment in favor of the City of San Diego .

The Ninth Circuit stated that based upon ".material statutory authority not available at the time of the district court decision, we conclude that the statute is not preempted; it is safety-related and comes within the safety exception to federal preemption."

HOW DOES THIS IMPACT YOUR AGENCY:

This case points out the need for a department's legal advisor to stay on top of decisions which effect field operations. Plaintiff's counsel are continually finding restrictive language in federal statutes and applying preemption to those areas that affect their clients' interests.

Reasonable Force Upheld in Shooting

Blanford v. Co. of Sacramento, et al., 406 F. 3d 1110 (9 th Cir. 2005)

Matthew Blanford was shot and severely injured after being confronted by Sheriff's deputies. He ignored their warnings and commands to stop and drop a sword that he was carrying, and instead tried to enter a house in a residential area. Blanford filed an action against the deputies, the sheriff and county asserting civil rights violations for excessive force, unreasonable seizure, and false arrest. The district court concluded the deputies acted in an objectively reasonable manner because a reasonable officer, in their position at the time, would have believed that Blanford presented an imminent threat of death or serious bodily injury to persons inside the house or yard of the residence or to themselves. The district court also found the deputies had probable cause to arrest Blanford for violating Penal Code § 417.8 (exhibiting a deadly weapon, with the intent to avoid arrest).

The United States Court of Appeal, Ninth Circuit, affirmed, agreeing that the officer's actions were reasonable under the circumstances. The Court summarized the deputies were objectively reasonable actions by pointing out that (1) Blanford was armed with a dangerous weapon; (2) was told to stop and drop it; (3) was warned that he would be shot if he didn't comply; (4) appeared to flaunt the deputies' commands by raising the sword and grunting; (5) refused to let go of the sword; and (6) was intent upon trying to get inside a private residence or its backyard with the sword in hand.

HOW DOES THIS IMPACT YOUR AGENCY:

The submission of well documented reports, that follow a step by step description of an officer's actions, is invaluable in order to support law enforcement's qualified immunity from civil liability.

Cutter v. Wilkinson, 125 S. Ct. 2113 (2005).

Current and former inmates of Ohio state institutions alleged that prison officials violated 42 U.S.C.S. section 2000cc-1 of the Religious Land Use and Institutionalized Persons Act of 2000 by failing to accommodate their exercise of non-mainstream religions by:

Prison officials argued that section 3 of the Religious Land Use and Institutionalized Persons Act of 2000 (RLUIPA), 42 U.S.C.S. section 2000cc-5(7) (A), on its face, improperly advanced religion in violation of the First Amendment's Establishment Clause. Section 3 of the RLUIPA prohibits government from imposing a substantial burden on the "religious exercise of a person residing in or confined to an institution, unless the burden furthers a compelling governmental interest and does so by the lease restrictive means." 42 U.S.C. section 2000cc-1(a) (1)-(2).

The United States Supreme Court held that section 3 of the Religious Land Use and Institutionalized Persons Act of 2000 (RLUIPA), 42 U.S.C.S. section 2000cc-5(7)(A), is a "permissible accommodation that is not barred by the Establishment Clause; is compatible with the Establishment Clause because it alleviates exceptional government created burdens on private religious exercise; does not elevate accommodation of religious observances over an institution's need to maintain order and safety; does not differentiate among bona fide faiths because it conferred no privileged status on any particular religious sect." In fact, the Court found that section 3 is "compatible with the Establishment Clause because it alleviates exceptional government created burdens on private religious exercise."

Finally the Court stated that if an inmate's request for religious accommodations " become excessive, impose unjustified burdens on other institutionalized persons or jeopardize the effective functioning of an institution, the facility would be free to resist the imposition ." (Emphasis added).