CASE UPDATES

By: Martin J. Mayer
and
Mervin D. Feinstein

Dating Relationship Defined For Purpose of Protection Under Domestic Violence Act

ORIOLA v. THALER 84 Cal.App.4th 397 (2000)

Joy Oriola met Adam Thaler at the Nautilus gym where they were both members. They conversed and exchanged e-mail. After the two attended a concert with a group of friends Joy telephoned Adam and informed him she just wanted to be friends. They continued to see each other at the gym and talk on the phone. Joy invited Adam to a friend's party in order to introduce him to other people and to "expand his associations." After Adam telephoned Joy, complained about her not spending time with him and told her that he didn't know what he'd do if she started dating another man, she reminded him she was not interested in establishing a romantic relationship and that she would be happy to listen if he needed to talk but did not think they should "hang out." Further conversations turned into arguments and Joy informed Adam they should cut off their friendship and he should not call her.

Joy then started receiving telephone calls from Adam where he was crying and upset. Adam then called her at work and told her he was angry and that she was very disrespectful. When Joy asked what she could do to make him stop being angry Adam responded that he wouldn't stop being angry until she no longer existed. Adam also followed Joy on two occasions when she left the gym.

Joy, over a four month period, received 25 - 40 hang up calls per day from Adam. Adam followed Joy into the sauna at the gym, giving her dirty looks, and after others in the sauna left, began to hit the bench and bang the walls with his shoulders and elbows. After Joy reported Adam's actions to the management Adam paged 45 individuals and left them Joy's cell phone and work numbers and engaged in other harassing behavior.

Joy filed a petition for a restraining order under the Domestic Violence Prevention Act (Family Code § 6200 et seq.). At the hearing, the judge stated that she thought Joy had a "great case for a harassment order," but it was a civil harassment case rather than a domestic violence one and dismissed the petition. Joy then filed a petition for an injunction under Code of Civil Procedure § 527.6 which was granted.

The California Court of Appeal, First Appellate District, which heard Joy Oriola's appeal from the order dismissing her application for a restraining order under the Domestic Violence Prevention Act, was faced with defining "dating relationship" as used in the Act.

The court noted that the Act did not define the phrase "dating or engagement relationship," and the meaning of a "dating relationship" was not clear enough to delineate the particular meaning the Legislature had in mind when it used these words.

The court pointed out that while the Act "clearly has a broad protective purpose, both in its stated intent and the breadth of the persons protected, it reflects no legislative intent to extend its protection to all categories of people who have social relationships with one another or even all the informal socializing relationships that could conceivably be described as "dating." As reflected in other categories of relationships enumerated in section 6211, the Act aims to protect individuals from harassment and abuse by people in relationships that involve some measure of exclusivity or at least continuity - spouses, cohabitants, parents and family members.

Adopting the sense of other legislative and judicial prescriptions, and in light of the other classes of persons protected by the Legislature under the Act, the court concluded that, for purpose of the Act, a "dating relationship" refers to serious courtship. It is a social relationship between two individuals who have or have had a reciprocally amorous and increasingly exclusive interest in one another, and shared expectation of the growth of that mutual interest, that has endured for such a length of time and stimulated such frequent interactions that the relationship cannot be deemed to have been casual. The court pointed out that it's finding did not leave Joy without relief as she could have, and did, seek a temporary restraining order and injunction under Code of Civil Procedure § 527.6.

/ How does this impact your department?

Although this holding is more of a guide for the judiciary, it should assist field and follow-up personnel in advising an alleged victim of either "domestic violence" or "harassment" in pursuing their rights. This should not alter an officer's actions in taking an individual into custody for "stalking" or acts of physical violence, however it will make a difference in whether the arrestee is booked for a "domestic violence" section or other criminal act.

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Disability Discrimination Claim Must Be Supported By Evidence That Individual Was Qualified For The Position

QUINN v. CITY OF LOS ANGELES (LAPD) 84 Cal.App.4th 472 (2000)

Eugene Quinn applied to be hired as a Los Angeles City police officer. He failed the medical exam, due to a significant hearing impairment and was so notified. Subsequently, due to a clerical error, Quinn was notified to report for a physical agility and other tests, which he passed. Quinn was admitted to and graduated from the Police Academy and assigned to patrol duty. While a probationary patrolman, Quinn's hearing problem manifested itself in several ways, resulting in his assignment to desk duty. After another exam again revealed his hearing impairment the Los Angles Police Department terminated him while he was still a probationary employee.

Quinn sued the City of Los Angeles alleging that his discharge constituted illegal disability discrimination. The City of Los Angeles unsuccessfully moved first for a non-suit and later for a directed verdict that Quinn had failed to establish a key element of his prima facie case - his qualification to be hired as a police officer. A jury found in Quinn's favor. The California Court of Appeal Second Appellate District reversed with directions to enter judgment in favor of the city.

The court stated that the city did not have an obligation to accommodate Quinn because he did not meet the minimal qualifications (sound hearing) to be hired for the position. The court also noted that the ability to localize sound was particularly significant to police officers in split second, life-threatening situations when an officer cannot clearly see.

The court found that Quinn was required as part of his prima facie case to establish that he was qualified to be hired as a police officer, which he failed to make that showing. Citing several recent cases the court noted that in order to establish a prima facie case for discrimination based upon violation of the Fair Employment and Housing Act (Government Code § 12900 et seq.), a plaintiff must prove he was qualified for the position.

The court found that it was within the discretion of the Los Angeles Police Department to set physical criteria for the hiring process and there was no disability discrimination because Quinn was never initially qualified for the position from which he was discharged. The court pointed out this was not a situation of an employee properly hired who subsequently suffered an adverse employment decision because of his disability. Instead, the court opined, this situation involved an individual who was never qualified to be hired from the onset. The fact that the initial disqualifying criterion may have also constituted a physical disability was irrelevant. This was no different than a situation in which the Los Angeles Police Department subsequently discovered that an employee lacked the basic qualification criteria of either being a citizen or being a high school graduate or being free of any felony conviction and then discharged that individual for failing to meet the initial hiring requirement.

/ How does this impact your department?

When an error has been made and an applicant has been hired who is not otherwise qualified for the position, the department must move swiftly to sever the employment relationship, preferably while the employee is still in the probationary stage. An agency cannot, after discovering the mistake, wait an unreasonable period of time prior to acting.

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Disability Benefits Denied Where Original Injury Was Merely Aggravated By Employment Related Injuries

ALESI v. BOARD OF RETIREMENT OF THE SAN DIEGO CITY EMPLOYEES' RETIREMENT SYSTEM 84 Cal.App.4th 597 (2000)

Charles Alesi injured his left knee several times before beginning employment with the City of San Diego. He dislocated it in 1986, re-injured it while jet skiing in 1988, and injured it again in a beach football game in 1989 and underwent ligament reconstruction surgery and was off work for one year.

In October 1990 Alesi was hired by the City of San Diego as a "Utility I Worker." In March 1994 Alesi re-injured his left knee at work when he slipped and fell stepping out of a truck. Alesi underwent surgery for the injury and returned to work. In June 1995 he suffered additional knee problems as the result of operating a jack hammer at work and attempting to jet ski and underwent another surgery, then re-injured the knee in August 1995 getting into a truck.

In April 1996 Alesi applied for an industrial disability retirement based on the knee injury and his application was referred to an adjudicator who conducted an evidentiary hearing that found Alesi permanently incapacitated from performing the activities required by his job with the City. The adjudicator further found that Alesi failed to sustain his burden of proving his disability arose out of or in the course of his employment. The Retirement Board adopted the adjudicator's decision and denied Alesi's application for a disability retirement. The Superior denied Alesi's petition for writ of mandate.

The California Court of Appeal Fourth Appellate District affirmed the Superior court's finding that Alesi's disability arose from a preexisting medical condition and was merely aggravated by his employment related injury and "[t]he city is not obligated to pay disability pension for all injuries merely when they are triggered by a work-related accident ... ."

/ How this affects your agency:

All applications for disability retirement should be compared to preexisting conditions the employee had when first hired and each evaluated by competent medical authority.

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"Wheeler" Does Not Relieve Burden Of Showing Good Cause For Discovery Of Documents From PO Files

CHP v. SUPERIOR COURT (Luna), 84 Cal.App.4th 1010 (2000)

CHP Officer McCain responded to a collision scene and observed a white BMW with no occupants parked at the shoulder. McCain examined the BMW and observed cracks and blood on the windshield; there was also blood on the steering wheel. Officer McCain was advised by Officer Pinedo that Pinedo had heard that an ambulance was en route to a nearby gas station. Both officers went to the gas station where they found three CHP officers present conducting an investigation regarding the white BMW. Officer Karsgor told Officer McCain that she observed two individuals who appeared involved with the BMW collision because their clothes were dirty and bloody. Karsgor confirmed that Luna was the driver of the BMW. Officer McCain interviewed both Luna and the passenger, Ruben Valdez, who stated that Luna lost control of the BMW.

Officer McCain smelled a strong odor of an alcoholic beverage on Luna's breath and observed objective signs of alcohol intoxication. A field sobriety test was administered which Luna was unable to complete and he was placed under arrest for DUI, transported to a hospital for medical clearance and a chemical test.

During the prosecution Luna filed two Pitchess motions. The first heard in July 1999 and sought an order compelling the CHP to produce records from the personnel files of all five officers. The records sought included (1) complaints of misconduct including "acts of force, violence, threats, lying, and preparing false police reports;" (2) the names, addresses and phone numbers of complainants; (3) records of disciplinary action taken in relation to treatment of persons in custody; (4) copies of all investigative reports by the "Investigating Department;" (5) reports by psychiatrists, psychologists, and other officers pertaining to misconduct; and (6) all reports of disciplinary actions relating to misconduct. Luna's declaration stated "[t]he material sought may also contain complaints of actions that demonstrate moral turpitude under People v. Wheeler, 4 Cal.4th 284, and is thus discoverable for impeachment purposes."

The trial court conducted an in camera review and made the following findings: (1) no records were discoverable other than certain records found in the personnel files of Officer McCain and Officer Conley; (2) with respect to Officer Conley "[t]here was a report of a problem ... in a police report that she filed and that report was investigated and a memo written by Sergeant Kerr ... [a]nd that is discoverable;" and (3) with respect to Officer McCain, "there was an issue of documentation of a time card and that is discoverable." The trial court did not expressly order disclosure of any particular records and no records were disclosed by the CHP at that time.

A hearing on the second Pitchess motion, which sought an order compelling the CHP to produce (1) "with regards to Officer McCain, any and all documents, records, written reprimands, or other documentation concerning any irregularities with Officer McCain's time cards in the last five years;" and (2) With regards to Officer Conley, any and all documents, records, reports, written reprimands, or any other documentation concerning any allegations, whether or not investigated or verified, that one or more of Officer Conley's ... written reports were in any way misleading, fabricated, untruthful, biased, or inaccurate," was held in September 1999. At that time Luna advised the court that efforts of his investigator to obtain personnel records pertaining to Officer McCain's time card issue and Officer Conley's problem police report had been unsuccessful.

The second Pitchess motion did not include an additional or supplemental declaration by Luna's counsel, instead, relied upon the attorney declaration filed with the first Pitchess motion. The trial court ordered disclosure of (1) the investigative report pertaining to the problem police report by Officer Conley; and (2) the investigative report pertaining to Officer McCain's time card documentation issue.

The California Court of Appeal, Sixth Appellate District, ruled that the trial court abused its discretion by ordering production of the documents and held that the decision in Wheeler did not relieve a defendant of the burden of making a showing of good cause as required by the statutory scheme for discovery of documents from a peace officer's personnel file.

The court pointed out that the California Supreme Court clarified the meaning of the "good cause" requirement, stating that a showing of "good cause" requires a defendant to demonstrate the relevance of the requested information by providing a "specific factual scenario" which establishes a "plausible factual foundation" for the allegations of officer misconduct committed in connection with the defendant. The court further added that only documentation of past officer misconduct which was similar to the misconduct alleged by the defendant in the pending litigation was relevant and therefore subject to discovery. Addressing the Wheeler issue, the court noted that the Supreme Court held "non-felony conduct involving moral turpitude should be admissible to impeach a criminal witness." However the court further noted that in Wheeler the Supreme Court did not address any issues relating to discovery of peace officer personnel records, and there was nothing in the decision to suggest that a defendant was entitled by virtue of the court's ruling to obtain any police personnel records reflecting moral turpitude without first making the good cause showing required.

/ How this affects your agency:

This case reaffirms the importance of making sure that all legislatively provided protections for peace officer personnel records be scrupulously followed. Attempts by defendant's counsel to circumvent the statutory scheme by arguing holdings of courts that do not specifically address peace officer personnel files must be vigorously resisted and appealed where necessary.

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Color Vision Is A Valid Job Requirement For A Peace Officer

DIFFEY v. RIVERSIDE COUNTY SHERIFF'S DEPARTMENT, 84 Cal.App.4th 1031 (2000)

Teg Diffey was rejected as an applicant for deputy sheriff due to being color-blind. Diffey sued, in state court, under both the FEHA (Government Code § 12900 et seq) and ADA (42 U.S.C. §§ 12101-12213) for discrimination and retaliation. The trial court granted a directed verdict against Diffey on his retaliation claim, however Diffey won a jury verdict of $307,244 on his discrimination claims. After trial, the court granted the county's motion for a new trial on the discrimination claims.

The California Court of Appeal, Fourth Appellate District, held there was no substantial evidence to support the jury's findings that the County regarded Diffey as disabled and reversed the trial court's order and remanded for entry of judgment in favor of the County, as well as allowing the County to recover it's costs for the appeal.

The Court noted that the sheriff's department followed POST guidelines for employment which recommends testing the color vision of deputy sheriff candidates. Diffey failed both color tests due to his inability to see red, a condition known as protanopia. Even though Diffey had an optometrist fit him with "X-Chrom" contact lens which allowed him to pass the test, such a test was invalid under POST regulations.

The Court pointed out that the threshold issue was whether the plaintiff had a disability. Both the ADA and FEHA require that an impairment, real or perceived, must substantially limit a major life activity in order to qualify as a disability. Being color blind did not prohibit Diffey from performing tasks of daily life. His "seeing" was not substantially limited, the only limitation on "seeing" posed by his condition was that it precluded him from working as a deputy sheriff. The court stated that the evidence supported a finding that color-vision was a valid job requirement for a deputy sheriff. "[A] person is not substantially limited in the major life activity of working merely because he is prevented from working as a police officer."

/ How this affects your agency:

This case reaffirmed the right of agencies which follow POST guidelines in their selection process for peace officers, to disqualify applicants who do not meet the minimum physical requirements without the worry of violating the FEHA or ADA. .

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Exceeding Scope Of Protective Sweep Requires Suppression Of Evidence

PEOPLE v. SANDERS, et al., 84 Cal.App.4th 1211 (2000)

Charlotte McKinley, an apartment manager, was informed by residents of apartment 17 of a disturbance in apartment 18. McKinley called the police. Bakersfield police officers Glen Davis and Scott Thatcher responded and a male and female were heard yelling at each other. When Officer Thatcher knocked at the door someone inside looked out through the blinds and the arguing stopped. Officer Thatcher knocked again, announced the presence of the police and ordered the door be opened immediately. When the door opened the two officers entered and contact was made with Arlene Sanders and Kenton McDaniel.

McDaniel was seen taking his hand out from between the couch cushions and Sanders quickly advised the officers they were not welcome and started grappling with Officer Thatcher. McDaniel approached Officer Thatcher, advising him to leave Sanders alone. Officer Davis intervened, pressing McDaniel against the wall and telling him to stay out of the situation.

After both Sanders and McDaniel were handcuffed Officer Davis made a protective sweep of the apartment to make sure there was no one else in the apartment that could endanger his or Officer Thatcher's safety. Officer Davis looked through the living room, kitchen, bathroom and two bedrooms, limiting his search to areas where a person could be hiding. There was an open closet in one of the bedrooms where, in plain view, Officer Davis observed a pair of brown work boots which had a large amount of plastic bags stuffed inside with small white chunks of cocaine base knotted into the corners. Officer Davis did not seize the items at this time but continued his sweep.

Once the sweep was completed, Officer Davis contacted the department to obtain McDaniel's parole status. After it was determined that McDaniel was on parole and subject to search Officer Davis called for a K-9 unit and another two-man unit to assist in a search of the apartment. A pair of stainless-steel plated scissors was retrieved from between the couch cushions and a total of 4.72 grams of cocaine, as well as a gram scale, $390 cash and a pager were seized.

Sanders and McDaniel were charged with possession of cocaine base for purposes of sale. Their motion to suppress the evidence, pursuant to Penal Code section 1538.5, was denied. Both were convicted and sentenced. In denying the motion to suppress, the trial court found exigent circumstances existed to permit the officers to enter the residence to investigate and perhaps arrest McDaniel for a domestic violence offense. The court also found the officers "had a duty to protect themselves after they got in there." The trial court found McDaniel lacked standing to bring the motion because he had no expectation of privacy since he was on parole and subject to parole searches and since Sanders was living with someone who was subject to parole she also had reduced expectations of privacy.

The California Court of Appeal, Fifth Appellate District, held that a warrantless search of a residence may not be justified as a parole search where the searching officer was unaware of the parole condition at the time of the search. The court also concluded that the "protective sweep doctrine" did not apply because there was a search of the entire residence without reasonable cause to believe the areas swept harbored an individual posing a danger to those on the arrest scene.

Addressing the protective sweep, the Appellate Court noted that law enforcement officers may "take reasonable steps to ensure their safety after, and while making [an] arrest [in a home]." The Court pointed out that "reasonable steps," defined in Maryland v. Buie, 494 U.S. 334 (1990), are of two types. First, officers may "without probable cause or reasonable suspicion" and as a "precautionary matter" "incident to the arrest," "look in closets and other spaces immediately adjoining the place of arrest from which an attack could be immediately launched." Second, if there exists "articulable facts which, taken together with the rational inferences from those facts, would warrant a reasonably prudent officer in believing that the area to be swept harbors an individual posing a danger to those on the arrest scene," officers may further investigate the premises for purposes of insuring their safety. In neither instance may the investigation be a "full search of the premises," and must be limited to "only a cursory inspection of those spaces where a person may be found."

The Court found that Officer Davis failed to articulate any basis or facts warranting a reasonable belief that another individual posing a danger to those on the arrest scene required a protective sweep of the entire residence. Since reasonable suspicion did not support a protective sweep of spaces not immediately adjoining the area of McDaniel's arrest, the search of the bedrooms could not be justified as a protective sweep under Buie.

Regarding the parole search the Court agreed with the defendant's contention that in order for a parole search to be valid the officer must be aware of the search condition.. The court also noted that the search was not conducted pursuant to a known search clause, and was not motivated by rehabilitative, reformative or legitimate law enforcement or parole purpose.

McDaniel's parole status could not be used to validate the search with regard to Sanders, who had a reasonable expectation of privacy in her residence.

/ How this affects your agency:
Department's should review existing policies with their legal advisor to insure they comport with the California Supreme Court's rulings in the cases cited by this court. It should be remembered that there is a fine line between suppression of evidence in a criminal matter and violating Fourth Amendment Rights giving rise to a 42 U.S.C. § 1983 cause of action. Advanced officer and in-service training should revisit search and seizure issues on a regular basis to keep personnel up to date on significant rulings that effect how they must carry out their duties.

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As always, before taking any legal actions be certain to seek appropriate legal advice, whether it is from a city attorney, county counsel, or your police legal advisor. If you have any questions or wish to discuss these cases in more detail, please do not hesitate to call us at (714) 446-1400.

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