CASE SUMMARIES

January 2008

SUSPENSION UPHELD FOR DISHONESTY
 AND FALSIFICATION OF RECORD

Norton v. San Bernardino City Unified School Dist. (2008) 158 Cal.App.4th 749

The District hired Norton as director of building services in 1995. In January 2003, Norton directed the electronics and electrical shop supervisor to look into purchasing equipment that would detect whether listening devices had been planted in the building services offices. Norton took this action after learning that confidential information discussed during managerial meetings had been leaked to non-managerial employees immediately after or during those meetings.

California Surveillance Systems (CSS), from whom surveillance equipment for the District had previously been purchased, was contacted. On January 31, Norton met with the electrical shop supervisor and owner of CSS  regarding the purchase of a miniature bug detector. Norton wanted the purchase of the device kept confidential and asked if it could be described as something else on relevant documentation.  CSS’s owner referred to the miniature bug detector purchased by the District as a "'monitor wall mount'" on the invoice, which was processed in the amount of $159.39. Norton was never told how the miniature bug detector was described on the purchase requisition or invoice.

On March 28, 2003, Norton was placed on administrative leave with pay pending an investigation. On June 11, Yolanda Ortega, the District's Assistant Superintendent of Employee Relations,  met with Norton to discuss several allegations of misconduct against him, five of which related to the purchase of the miniature bug detector. On September 15, 2003, Norton received notice his employment with the District had been terminated, effective September 8, for engaging in misconduct in violation of  Personnel Commission Rule 6.25.

Norton appealed the District's decision to terminate his employment to the District's personnel commission. After conducting a six-day hearing, the administrative hearing officer, appointed by the personnel commission, issued a 42-page summary of findings and recommended decision. In her summary, the hearing officer concluded the only misconduct proven by the District was that Norton had been dishonest with regard to the paperwork involving the acquisition of the miniature bug detector and had indirectly falsified information given to the District. The hearing officer concluded the District failed to establish just cause for firing Norton because the purchase of the miniature bug detector in and of itself was not inappropriate. She recommended the personnel commission impose a "one month suspension without pay from September 8, 2003 to October 8, 2003 for [Norton's] act of dishonesty and falsification of a document related to the mini-bug detector." The hearing officer further recommended the "Personnel Commission order that Edward Norton be reinstated to his position as Building Services Director with back pay from October 9, 2003 to date of reinstatement."

Norton filed a petition challenging his suspension which the trial court denied in full. The Trial Court’s judgment stated the District "did not abuse its discretion in suspending [Norton]'s employment for one month, without pay, for [Norton]'s act of dishonesty and falsification of a document."  The hearing officer also directed that Norton was to "be reinstated and receive all unpaid back pay, with interest and benefits, if they have not already been done." The judgment further provided that the trial court retain limited jurisdiction "for the sole purpose of ascertaining whether [Norton] has been fully paid his back pay, with interest and benefits."

The California Court of Appeal affirmed the trial court's denial of the petition, holding that the personnel commission did not abuse its discretion by adopting the hearing officer's recommendation that Norton be suspended for one month without pay, based on evidence presented at the administrative hearing.  However, the Appellate Court concluded that the record contained un-refuted evidence the District failed to fully reinstate Norton to the former duties and responsibilities of his former position as building services director. The Appellate Court remanded the matter to the trial court to issue a writ of mandate compelling the District to reinstate Norton as described in the disposition.

LOCAL GOVERNMENTS MUST TREAD LIGHTLY
REGARDING REGULATION OF FIREARMS

Fiscal v. City and County of San Francisco  (2008) 158 Cal.App.4th 895

In 2005, the voters of the City and County of San Francisco, a home rule charter city, passed Proposition H, a local ordinance prohibiting: (1) virtually all City residents from possessing handguns; and (2) all City residents, without exception, from selling, distributing, transferring and manufacturing firearms and ammunition.

After Prop H passed, Paula Fiscal, several retired law enforcement and military personnel, two law enforcement associations, and several firearms rights groups sought a writ of mandate declaring Prop H invalid. Among other arguments, the ordinance was challenged on the grounds that it was preempted by state law.

The trial court held that key aspects of the ordinance were preempted by state law, and further determined that the invalid portions of the ordinance were not severable from the arguably valid portions. Therefore, the court concluded the ordinance was preempted in its entirety. Lastly, the trial court held that the City's home rule power under the California Constitution, did not override state preemption because the field being regulated was one of statewide, rather than local, concern.

The California Court of Appeal agreed with the trial court's conclusions and affirmed the judgment in all respects.  The Appellate Court noted that the trial court identified two state statutes, "each of which specifically preempts a narrowly limited field of firearms regulation," which the trial court found preempted the local ordinance.

The Appellate Court pointed out that Penal Code section 12050 provides that, upon a showing of good cause, any law-abiding, responsible adult can obtain a license to carry a concealed handgun. Even without a license, Penal Code sections 12025.5 and 12031, subdivision (j)(2) create special exceptions whereby people who have been threatened and who have obtained restraining orders may carry loaded and concealed handguns. Penal Code sections 12027, subdivision (a) and 12031, subdivision (b)(1) allow civilians to possess concealed and loaded handguns when summoned by police to assist police in making an arrest or to preserve the peace. Penal Code section 12031, subdivision (k) permits possession of a loaded gun when making a citizen's arrest. Penal Code section 12031, subdivision (j)(1) allows possession of a loaded firearm when a person has a reasonable belief that he or she is in immediate grave danger and the firearm is necessary to protect person or property.

Concluding, the Appellate Court stated, “We wish to stress that the goal of any local authority wishing to legislate in the area of gun control should be to accommodate the local interest with the least possible interference with state law. As we have seen, while courts have tolerated subtle local encroachment into the field of firearms regulation, laws which significantly intrude upon the state prerogative have been uniformly struck down as preempted. Therefore, when it comes to regulating firearms, local governments are well advised to tread lightly....”

MATTERS COVERED BY VEHICLE CODE
PROHIBITED UNLESS SPECIFICALLY ALLOWED

City of Los Angeles v. 2000 Jeep Cherokee (2008) 159 Cal.App.4th 1272                                                                      
In April 2005, Richard Reinsdorf's Jeep was seized when he was arrested for soliciting prostitution. In May, he was notified that the City of Los Angeles had initiated forfeiture proceedings under section 41.70 of the Los Angeles Municipal Code, which authorizes the seizure and forfeiture of vehicles used to solicit prostitution. Reinsdorf challenged the City's action, claiming the ordinance was preempted by state law.  The trial court agreed, gave judgment to Reinsdorf against the City, and later granted Reinsdorf's motion for attorney's fees in the amount of $49,735.90.

The City appealed and the Appellate Court concluded that, in light of the California Supreme Court’s holding in O'Connell v. City of Stockton, it was compelled  to  affirm of the trial court’s judgment on the ground that the Los Angeles ordinance was preempted by state law.

The Appellate Court pointed out that under article XI, section 7 of the California Constitution, "[a] county or city may make and enforce within its limits all local, police, sanitary, and other ordinances and regulations not in conflict with general [state] laws. If otherwise valid local legislation does conflict with state law, it is preempted by such law and is void -- and such a conflict exists if the local legislation duplicates, contradicts, or enters an area fully occupied by general law, either expressly or by legislative implication."  (Emphasis added.)

The Appellate Court noted that "[v]ehicle Code section 21 states: 'Except as otherwise expressly provided, the provisions of this code are applicable and uniform throughout the State and in all counties and municipalities therein, and no local authority shall enact or enforce any ordinance on the matters covered by this code unless expressly authorized herein.' (Italics added.) Thus, under section 21, local regulation of any 'matter[]' covered by this state's Vehicle Code is prohibited unless the Legislature has expressly allowed local regulation in that field..”

JAIL POLICIES THAT INFRINGE UPON RELIGIOUS
MATTERS OF INMATES MUST SHOW A
COMPELLING NEED FOR SUCH RESTRICTION

Darin D. Greene v. Solano County Jail (2008) 513 F.3d 982

In his civil rights action against Solano County Sheriff’s Lieutenant Peggy Rourk, Darin D. Greene, a former maximum security prisoner at the Claybank facility of the Solano County jail, alleged that the Claybank jail’s policy of prohibiting maximum security prisoners from participating in group worship was a violation of his rights under the Religious Land Use and Institutionalized Persons Act (RLUIPA) of 2000; under the First, Eighth and Fourteenth Amendments; and under California Penal Code section 4027.

The district court granted summary judgment in favor of Rourk on the entire claim and also granted summary judgment in favor of Rourk on Greene’s claims for alleged violations of the First, Eighth and Fourteenth Amendments, as well as for his claim under Penal Code section 4027, and dismissed the case. Greene appealed.

The United States Court of Appeals for the Ninth Circuit granted review and decided there were  disputed issues of material fact with regard to Greene’s claim and reversed the district court’s summary judgment in favor of Rourk and remanded it to the district court for further proceedings.

The Court also concluded that the Claybank jail’s policy of prohibiting Greene, a maximum security prisoner, from attending group religious worship services substantially burdened his
ability to exercise his religion.
                            
The Court pointed out that the RLUIPA  provided in relevant part, that “[n]o government shall impose a substantial burden on the religious exercise of a person residing in or confined to an institution . . . even if the burden results from a rule of general applicability,” unless the government establishes that the burden furthers “a compelling governmental interest,” and does so by “the least restrictive means.”  The Act defines “religious exercise” to include “any exercise
of religion, whether or not compelled by, or central to, a system of religious belief.”

The Court took notice that Rourk asserted, and the district court agreed, that the policy
of precluding maximum security prisoners such as Greene from participating in group worship served the compelling governmental interest of maintaining prison security. The question was, according to the Ninth Circuit, whether precluding group worship by maximum security prisoners at the Claybank jail was the least restrictive means of furthering this compelling governmental interest.

The Court concluded that “(N)othing in our opinion should cast doubt on the fact that
prison officials may, under certain circumstances, substantially burden a prisoner’s ability to engage in religious exercise. But in light of RLUIPA, no longer can prison officials justify restrictions on religious exercise by simply citing to the need to maintain order and security in a prison. RLUIPA requires more. Prison officials must show that they “actually considered and rejected the efficacy of less restrictive measures before adopting the challenged practice.”  If prison officials meet that standard, the prison regulation passes muster under RLUIPA, regardless of the burden it imposes on religious exercise.”    

UNLESS ACTIONS ARE DELIBERATE INTENT
TO HARM, OFFICER ENTITLED TO QUALIFIED
IMMUNITY IN HIGH-SPEED CHASE

Edwige Bingue, et al. v. Eli Prunchak  (2008) 512 F.3d 1169

Officers with the Las Vegas Metropolitan Police Department attempted to pull over a stolen Toyota. When the driver refused to stop, a police chase ensued. The chase lasted an hour, covered nearly 90 miles, and involved at least a dozen units and a helicopter. Officer Eli Prunchak was at a car dealership ordering a new door panel for [his] patrol vehicle when he heard radio traffic that units were in pursuit of a stolen vehicle heading southbound on Boulder Highway. Based on the radio traffic, Prunchak thought that he was close enough to the pursuit that he had a good chance of catching up to it and assisting other officers in apprehension of the suspects. Ten minutes after LVMPD first attempted to stop the Toyota, it entered the southbound lanes of the U.S. 95.

At that point, Prunchak still thought that he was close enough to help and did not know at the time how many other units were in pursuit. Calculating that he was still approximately a half mile to a mile behind the pursuit, Prunchak, with emergency lights active, entered the left lane of southbound U.S. 95. At about the same time, Edwige Bingue, and her mother, Marjorie, were traveling on southbound U.S. 95 when they saw several police units in pursuit of the Toyota. Bingue moved to the right to avoid the units, and the units safely passed. Minutes later, Prunchak approached—traveling around 100 miles per hour—and while rounding “a long, wide, left curve felt his tires slip from underneath his patrol vehicle, drift  into the number-two lane. Though there were no cars in the number two lane when Prunchak attempted to regain control of his car, he quickly drifted into the number-three lane and “sideswiped” the driver’s side of Bingue’s Mercedes. Both vehicles spun out of control and came to rest on the divider between the north and southbound lanes of the freeway. Realizing he was not seriously injured, Prunchak immediately moved to assist Bingue, who was “extremely shaken up, but did not appear to have serious injuries.” Shortly after, another unit arrived and relieved Prunchak.

The Bingues filed suit in state court against Prunchak, LVMPD, and others alleging state law negligence and, pursuant to 42 U.S.C. § 1983, violations of the Fifth and Fourteenth Amendments. The case was removed to federal court, where Prunchak moved, on qualified immunity grounds, for partial judgment on the pleadings on Bingue’s federal claims. The district court denied the motion in a very short order finding “that the issue of what standard to apply [to Bingue’s claims] —(1) the ‘intent to harm’ standard or (2) ‘deliberate indifference’—to determine whether there is a substantive due process violation, is a fact-based inquiry that looks at whether deliberation was practical” and that “Bingue has demonstrated substantial questions of material fact as to whether Prunchak had opportunity to deliberate.” Prunchak appealed.

The United States Court of Appeals for the Ninth Circuit reversed the District Court and remand for an entry of judgment for Prunchak on the §1983 claims.

The Ninth Circuit noted that in Onossian v. Block, it applied the Supreme Court’s decision in County of Sacramento v. Lewis, 523 U.S. 833 (1998), and held that a police officer in a high-speed chase—whether he injures the fleeing suspect or a bystander—is entitled to qualified immunity unless his behavior “shocks the conscience” by concluding that it demonstrated an intent “to cause harm unrelated to the legitimate object of arrest.”  The Ninth Circuit stated that ”[T]oday we refine our Onossian analysis and hold, following the Eighth Circuit, that police officers involved in all high-speed chases are entitled to qualified immunity under 42 U.S.C.       §1983 unless the plaintiff can prove that the officer acted with a deliberate intent to harm. (Citation)

The Ninth Circuit concluded that “high-speed police chases, by their very nature, do not give the officers involved adequate time to deliberate in either deciding to join the chase or how to drive while in pursuit of the fleeing suspect. We hold, therefore, that Lewis requires us to apply the “intent to harm” standard to all high-speed chases. Since Prunchak’s actions do not meet this stringent standard, Bingue’s claim fails under the first step of the . . . analysis and Prunchak is entitled to dismissal. . . . .”

“Because Ahmadi-Kashani had no right to an evidentiary hearing as part of her grievance process -- and certainly never participated in one -- the authorities relied upon by the trial court in concluding she was bound to complete that process, and then to challenge its result through a writ of mandate proceeding, are inapposite.” The Appellate Court could not discern a reason to declare that Ahmadi-Kashani should be bound by the University's rejection of her claims merely because she chose to participate in an informal "meeting" convened to "discuss" them (the second step of the grievance process).

The Court concluded that “. . . even assuming Ahmadi-Kashani herself had been given some right to initiate the step 4 binding arbitration, and had completed that arbitration, its result would not, in fact, have been entitled to binding effect against her in a subsequent lawsuit based upon the FEHA." (Citation omitted). The Court stated it could perceive no basis for according binding effect to a partially completed grievance process, when even the completed process would not have been entitled to such effect.