Mendoza v. Town of Ross, et al. 128 Cal.App. 4th 625

Peter Mendoza, born with cerebral palsy resulting in quadriplegia and confined to a wheelchair, was a volunteer Community Service Officer assigned to Ross Grammar School and assisted in traffic duties, crime prevention and neighborhood crime watch programs. After a probationary period, Mendoza was sworn in as a CSO and provided a uniform, issued a badge bearing his name and “Community Service Officer - Ross Police,” and an identification card stating “Police - This is to certify that Peter Mendoza is a duly appointed Community Service Officer.”

Mendoza had a regular work schedule, worked on holidays, and took two weeks vacation each year. His supervisors found Mendoza’s work satisfactory and sought a grant to create a paid position for him. Mendoza’s position however was terminated and he filed a complaint for wrongful termination, discrimination based on disability, and four other alleged causes of action.

The trial court relied on federal cases interpreting Title VII, which have concluded that volunteers are not employees and, therefore, cannot bring employment discrimination and wrongful termination suits, and dismissed Mendoza’s complaint. Mendoza was an uncompensated volunteer, and not an “employee” for purposes of imposition of liability for unlawful employment practices under the Fair Employment and Housing Act (FEHA). The California Court of Appeal, First Appellate District, affirmed the trial court’s ruling.

The appellate court pointed out that the FEHA conferred employee status on individuals who have been appointed, who were hired under express or implied contract, or who serve as apprentices. The appellate court rejected Mendoza’s argument that he was “appointed” to his volunteer position and, therefore, met the FEHA’s broad definition. The court noted that the argument ignored the controlling local ordinance, which vested the town council with the exclusive authority to make appointments to employment.

Analyzing Title VII, the appellate court concluded that a purported employee must establish the existence of remuneration, in some form, in exchange for work to satisfy the hiring prong. Lastly the court noted, other than salary, substantial benefits which are not merely incidental to the activity performed, such as health insurance, vacation or sick pay, would be indicia of employment status.

The court concluded that Mendoza conceded that his position was unpaid, and he did not allege that he received any other type of financial benefits.

HOW THIS AFFECTS YOUR AGENCY:

Review of volunteer appointment forms should be undertaken and consideration given to adopting a form, which the volunteer would sign, that states: “I fully understand that in accepting the position of _____, I am not an employee of the City/County of ____________, but am an uncompensated volunteer, who has not entered into any implied contractual agreement. I full understand that I am not entitled to any benefits of which an employee of the City/County of ______, would be entitled, including workers compensation benefits. I also understand that my status as a volunteer may be ended at any time for any reason and that the protective provisions of the California Fair Employment and Housing Act (Government Code 12901, et seq. and Title VII (42 U.S.C. 2000e) do not apply to volunteers.”

Qualified Immunity Denied Officer
Who Filed a Misleading Affidavit
To Obtain a Search Warrant

Baldwin v. Placer County, et al. 405 F.3rd 778 (9th Cir.2005)

Based on the affidavit filed by Deputy Jeff Potter, a member of the marijuana eradication team (MET) of the Placer County Sheriff’s Department, a county judge issued a search warrant for the residence of Michael Baldwin, a dentist, and Georgia Chacko, his wife. The affidavit stated that Deputy Reed told Sergeant Besana that “a citizen informant” had told him that Michael Baldwin was “possibly growing marijuana” and that Potter searched Baldwin’s trash and found, along with other items, “marijuana leaves and stems recently cut from a mature marijuana plant. The marijuana was fresh green and still moist,” and that he had found “marijuana seeds and a hydroponic grow rock….” The affidavit contained other standard recitals pertaining to Deputy Potter’s narcotics training and experience, documents and property expected to be found, but did not mention weapons.

In the early dawn of the day Deputy Potter obtained the warrant, five officers including Potter entered Baldwin’s residence, without knocking, and encountered Baldwin. Deputy Reed pointed his gun at Baldwin and ordered him to lie down. Georgia Chacko, opening her bedroom door, was confronted by a flashlight in her face and fingers sharply poking at her throat, forcing her back into the bedroom. As directed by Deputy Potter she got on the floor where she was kneed in the small of her back and handcuffed.

Baldwin and Chacko filed a complaint alleging Constitutional violations and the County moved for summary judgment on the ground of qualified immunity of the officers. The district court denied the motion, ruling that triable material issue of fact existed as to the plaintiffs’ claims of excessive force, judicial deception, and conspiracy by the MET team.

The United States Court of Appeals for the Ninth Circuit, on the basis of the facts conceded as undisputed by the County for purposes of their appeal, held that the County violated established constitutional rights of Baldwin and Chacko and that qualified immunity was properly denied.

The Ninth Circuit rejected the County’s argument that the force used was “objectively reasonable” because the officers could have believed that “the exigency of the entry” justified the batteries. The Court noted that, on the conceded facts, there was no exigency. Baldwin was a practicing dentist and nothing in the record indicated that the officers had reason to believe that he would resist or flee. The officers had stated no belief that Baldwin would be armed and mentioned no criminal history or conspiracy that could have justified such a belief. The Court stated that the officers had no reason to not identify themselves, before giving orders to Baldwin and Chacko, when invading their home in the early morning. The Court commented that “... governmental interests in using handcuffs are at their maximum when ‘a warrant authorizes a search for weapons and a wanted gang member resides on the premises. Conversely, governmental interests are at a minimum when the searchers assert no belief that weapons will be found and no belief other than that the occupants of the house are a practicing dentist and his wife.”

Addressing “Judicial Deception,” the Ninth Circuit observed that “[t]he Fourth Amendment is the guarantee of every citizen that his home will be his castle, safe from the arbitrary intrusion of official authority. It is no barrier at all if it can be evaded by a policeman concocting a story that he feeds a magistrate. This obvious truth is met by the County with the argument that we should redact Potter’s affidavit, purge it of its lies, and find what remains sufficient to justify the issuance of the warrant.”

The Court pointed out that when Potter’s lies were taken out, all that was left was an “unidentified citizen at an unidentified date telling a sheriff’s deputy of marijuana growing at an unidentified time; also the presence of a rock and tow pots, the uses of which are ambiguous.” The Court concluded this issue, stating “Plainly, Potter’s lies were substantial in moving the magistrate. The force of the lies on the mind of the magistrate cannot be bleached out.”

HOW THIS AFFECTS YOUR AGENCY:

This case points out the need to have affidavits screened for accuracy prior to presentation to a magistrate. The discontinuance of “boiler plate” verbiage, that does not clearly set forth factual information upon which a magistrate can rely, should also be considered. This set of circumstances points out a need to have a legal advisor, or member of the prosecutor’s office, available to review and sign-off on affidavits, if law enforcement officers want to protect the fragile qualified immunity they currently enjoy.

Where IA Report Contains Verbatim Extracts
Of Witness Statements Due Process Satisfied
For Pre-Termination Process

Gilbert v. City of Sunnyvale, et al. 130 Cal.App. 4th 1264

Randall Gilbert was terminated by the Sunnyvale Department of Public Safety after misconduct was discovered during a multi-agency investigation into an alleged prostitution business. Prior to being terminated Gilbert had been placed on administrative leave and received formal notice informing him that allegations of misconduct had been filed by the Department. Gilbert received a notice that the Chief intended to recommend to the City Manager that he be terminated, and was given a copy of the Chief’s I.A. investigation.

The investigation sustained six allegations of misconduct by Gilbert. Four allegations involved Gilbert’s accessing DMV files utilizing a Sunnyvale Department of Public Safety computer terminal while on duty and without legitimate law enforcement purpose. One of the two license plate numbers Gilbert ran belonged to an FBI agent’s vehicle, and the second number was, apparently, another one of the FBI surveillance vehicles. A fifth allegation involved Gilbert’s verbally releasing confidential DMV information while on duty, and without legitimate law enforcement purpose, to an unidentified female. The sixth sustained allegation stated that Gilbert had accepted and consumed a meal, which was provided without charge by the owner of the business under investigation, while on duty and in full police uniform.

Four months after his termination Gilbert’s attorney sent a letter to the City Attorney complaining that Gilbert had not received all the relevant investigatory materials. The City Attorney responded, providing several crime reports, interview statements, a Department of Justice letter regarding possible CLETS misuse, and a redacted FBI undercover report.

Gilbert filed a petition for a peremptory writ of mandate alleging denial of procedural due process and noncompliance with GC 3303(g), which was denied by the Santa Clara County Superior Court. The California Court of Appeal, Sixth District, affirmed the denial of Gilbert’s writ.

The Court rejected Gilbert’s contention that the word “materials,” as used in Skelly v. State Board Personnel Board, means each and every document identified in the Chief’s case, and that they had to be produced prior to his pre-termination hearing in order to satisfy due process. The court noted that “[E]ven the regulation in Arnett, upon which Skelly relied, allowed for “extracts” from witness statements, documents, and investigative reports.” The Court pointed out that the Chief’s case contained verbatim excerpts of his telephone conversations with an unidentified female in which he was provided with two license plate numbers, the results of internal DMV and DOJ journal searches showing inquiries into those vehicle license plate numbers from specified terminals using an operation number that corresponded with his employee number, and excepts from other relevant documents, including transcribed interviews. The Court opined that “[t]he Chief’s case together with the other materials made available ... prior to his pretermination hearing adequately provided an explanation of the employer’s evidence ... and notice of the substance of the relevant supporting evidence ..., sufficient to enable appellant to adequately respond at the pretermination stage.”

The Court observed that the pre-termination procedures were constitutionally sufficient. “[T]he minimal due process rights required by Skelly prior to discharge are merely anticipatory of the full rights which are accorded to the employee after discharge.” (Emphasis added)

In it’s analysis of GC 3303, the Court opined that “[f]air treatment of such officer does not require that all the material amassed in the course of the investigation, such as raw notes, written communications, records obtained, and interviews conducted, be provided to the officer following the officer’s interrogation. Nothing in the Act’s language or legislative history reveals a Legislative intent to provide an officer who is the subject of an administrative internal affairs investigation with broad statutory discovery rights similar to those held by criminal defendants.”

HOW THIS AFFECTS YOUR AGENCY:

Departments should review their disciplinary process with their legal advisor to insure they are meeting minimum “due process” requirements. How, and when, release of non-confidential data to the accused employee is to be accomplished should be established as a general policy. If the employee appeals the disciplinary action, full disclosure of all material, upon which the discipline was based, is required.

Officer Has Right to Receive Information
Released By Department Pursuant
To Successful Pitchess Motion

Becerrada v. Superior Court of Los Angeles Co. (LASO) 131 Cal.App. 4th 409

Ruben Becerrada, charged with murder, filed a “Pitchess” motion for information from the personnel files of 27 deputies. The trial court ordered certain material from the personnel files of 23 deputies produced to the defense. Subsequently the 23 deputies requested, from the custodian of records of the Los Angeles County Sheriff’s Department, the information that had been ordered produced to the defense. Becerrada sought an order to prevent the custodian of records from releasing the information to the individual deputies, which the trial court denied. The California Court of Appeal, Second District, affirmed the trial court’s denial.

The appellate court rejected Becerrada’s argument that releasing the information would violate the prohibition, established in Alford v. Superior Court (2003) 29 Cal.4th 1033, against releasing such information to the prosecution absent a separate Pitchess motion. The Appellate Court pointed out that, while an officer remains free to discuss with the prosecution any material in his files, in preparation for trial, that does not translate into a “back door” for the prosecution to evade the legal requirements imposed by Alford.

The appellate court noted that statutes expressly provided an officer the right to be present at the in camera review of his files, in combination with the more general right of access to the personnel files. As such, that gave each individual officer the practical ability to access the information in the specific complaints the court has determined to be sufficiently relevant to the case to order a Pitchess disclosure.

The Court stated that “[t]he distinction between an officer’s ability to review his files with the list of relevant complaints in hand, and to receive a copy of the disclosure report containing information extracted from those same files is a distinction without a difference – under either scenario, the officer has gained access to the same information.”

HOW THIS AFFECTS YOUR AGENCY:

This case clarifies the right of an officer to know what information was released by his/her department pursuant to a Pitchess motion, should the officer so request. It also makes clear that an officer does not have to share, but may share, any information in his/her personnel file with the prosecution. An officer cannot be ordered by his/her department to cooperate with the prosecution by discussing information in his/her personnel file. Not answered by this case is whether an officer waives his/her privacy rights by sharing information obtained from his/her personnel file with the prosecution or other officers?