CASE UPDATES

Rene v. MGM Grand Hotel Inc. 2002 DJDAR 11059; United States Court of Appeals For The Ninth Circuit, 305 F.3d 1061

Medina Rene, an openly gay male, worked as a butler for the MJM Grand Hotel from December 1993 until his termination in June 1996. He worked on the 29^th floor, where his duties involved responding to the requests of the wealthy, high-profile and famous guests for whom the floor was reserved. All of the butlers on the floor, as well as their supervisor, were male.

Rene provided extensive evidence that over the course of a two year period, his supervisor and several of his fellow butlers subjected him to a hostile work environment on almost a daily basis. Conduct included whistling and blowing kisses at Rene, calling him "sweetheart" and "muneca" (Spanish for "doll"), telling crude jokes and giving him sexually oriented "joke" gifts, and forcing Rene to look at pictures of naked men having sex. Rene also testified that he was caressed and hugged and that his coworkers would "touch [his] body like they would do a woman." On numerous occasions they grabbed him in the crotch and poked their fingers in his anus through his clothing.

Rene filed a complaint in federal district court and the MGM Grand moved for summary judgment on the grounds that "claims of discrimination based on sexual orientation are not cognizable under Title VII[.]" The district court agreed that Rene had failed to state a cognizable Title VII claim, granted MGM's summary judgment motion, concluding that "Title VII's prohibition of 'sex' discrimination applies only [to] discrimination on the basis of gender and is not extended to include discrimination based on sexual preference."

The United States Court of Appeal, Ninth Circuit, reversed holding that an employee's sexual orientation is irrelevant for purposes of Title VII. It neither provides, nor precludes, a cause of action for sexual harassment. That the harasser is, or may be, motivated by hostility based on sexual orientation is similarly irrelevant, and neither provides nor precludes a cause of action. It is enough that the harassers have engaged in severe or pervasive unwelcome physical conduct of a sexual nature. The Court held that Rene had stated a cause of action under Title VII.

The Court noted that it's opinion was guided by the principles established by the Supreme Court in Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75 (1998), where, the Supreme Court stated that Title VII forbids severe or pervasive same-sex offensive sexual touching. The Supreme Court made clear that a plaintiff's action for sexual harassment under Title VII cannot be defeated by a showing that the perpetrator and the victim of an alleged sexual assault are of the same gender.

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Officers Do Not Bear Burden Of Establishing Misconduct Findings Are Erroneous

Caloca et al. v. County of San Diego et al. 2002 DJDAR 11209; Court of Appeal of California, Fourth Appellate District, Division One, 102 Cal. App. 4th 433; 126 Cal. Rptr. 2d 3

Although the sheriff's department conducted its own investigation of misconduct allegations against three deputies, and determined that none of the officers were subject to disciplinary action, the Court found the deputies were nonetheless entitled to administrative review of the adverse findings by the county's civilian review board (CLERB). The Court left to the County of San Diego the formulation of the specific procedures which would govern the administrative review.

On remand the County of San Diego Civil Service Commission adopted procedures which, among other matters, required that (1) the officers bear the burden of establishing that the misconduct findings were erroneous, and (2) permitted the Commission to close some portions of its hearings to the public notwithstanding the objection of a deputy. The trial court found that the burden of proof could not be placed on a deputy and that without the consent of a deputy an administrative hearing could not be closed to the public.

The California Court of Appeal, Fourth Appellate District, affirmed the trial court holding that, at a minimum, an administrative appeal requires independent fact finding in a de novo proceeding. In such a proceeding the proponent of any fact bears the burden of establishing it. As such the Commission (1) could not place on officers the burden of refuting the civilian review board's misconduct finding, and (2) absent the showing of a substantial need to close its hearings the board could not close the hearing over the objection of a deputy challenging an adverse finding.

In a prior proceeding the Court found that the officers were entitled to an administrative appeal under Government Code § 3304, stating:

"Although CLERB's reports, findings of serious misconduct, and recommendations for discipline or policy changes are advisory only and CLERB has no authority to directly impose discipline against Deputies, our focus is on whether CLERB's findings of misconduct constitute 'punitive action' by a public agency as the term is defined under the Public Safety Officers Procedural Bill of Rights Act. Because CLERB's findings are actions which may lead to adverse employment consequences, they are 'punitive action[s]' within the meaning of the statute. The statue does not require a showing that an adverse employment consequence has occurred or is likely to occur, merely that actions 'may lead' to such a consequence. ... ."

The Court also pointed out that while the precise details of the procedure required by Government Code § 3304 were left to local law enforcement agencies, the law was clear that the administrative appeal provided by the Public Officer Bill of Rights required "an independent re-examination of an order or decision made." The Court opined that the re-examination must be conducted by someone who has not been involved in the initial determination. An independent decision maker who must make factual findings subject to judicial review cannot simply rely on the determination of the personnel or agency which has initiated punitive action against a peace officer. Rather, the independent fact-finding, implicit in the concept of an administrative appeal, requires at a minimum that the hearing be treated as a de novo proceeding at which no facts are taken as established and the proponent of any given fact bears the burden of establishing it.

The Court concluded that it was important to note that the administrative appeal, required by Government Code § 3304, was not an investigatory process but an adjudicative process by which the officers hope to restore their reputations.

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Department Had Mandatory Duty To Reinstate Officer Once Retirement Board Denies Disability Retirement

Hanna v. Los Angeles County Sheriff's Dept. 2002 DJDAR 11689; Court of Appeal of California, Second Appellate District, Division Seven, 102 Cal. App. 4th 887; 125 Cal. Rptr. 2d 686

Robin Hanna was employed as a Deputy Sheriff in 1986. In August 1996, she went on medical leave claiming she had sustained stress related injuries as a result of on-the-job harassment. Hanna filed a workers' compensation claim and in July 1999 received an award from the WCAB which contained a work restriction stating she was "precluded from stressful employment and could no longer be a police officer."

Hanna requested the Department reinstate her as a deputy sheriff and the Department refused, based on the work restriction. Hanna, therefore, submitted an application for service-connected disability retirement to the County's 1937 Act Retirement Board. In April 2000, the Retirement Board denied Hanna's application for disability retirement. In May 2000, Hanna demanded the Department return her "to her usual and customary job at another station." The Department refused to reinstate Hanna because of the work restriction.

In January 2001, Hanna filed a petition for peremptory writ of mandate against the Department seeking reinstatement to full duty as a deputy sheriff and back pay and benefits, and the Department opposed the petition. The trial court granted the petition, concluding the Department had a mandatory duty under Government Code § 31725 to reinstate Hanna to paid status as a deputy sheriff, "effective the day following the date of her dismissal which occurred no earlier than August 11, 2000."

The California Court of Appeal Second Appellate District, affirmed the trial court's judgment, concluding that once the Retirement Board's decision, denying Hanna's application for disability retirement became final, section 31725 required the Sheriff's Department to reinstate Hanna to paid status as a deputy sheriff.

The Court pointed out that not only the plain language of the statute (31715), but also case law (Phillips v. County of Fresno (1990) 225 Cal. App. 3^rd 1240; and Raygoza v. County of Los Angeles (1993) 17 Cal. App. 4^th 1240) made reinstatement mandatory. The Court noted that "[t]he Legislature's intent is plain. [The deputy] cannot be denied both work and disability retirement. If there is a hole in the statutory scheme, the county has to go to the Legislature for a patch."

The Court noted that the Department may refuse to allow Hanna to perform some of the duties of a deputy sheriff, but it must pay her as a deputy sheriff. The Court concluded that nothing in it's opinion prevented the Department from pursuing its own application on Hanna's behalf. If the Retirement Board grants the Department's application, Hanna will be retired. But until the Retirement Board renders its decision, Hanna should not sit in limbo without either a disability retirement or full pay as a deputy sheriff.

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Department Has Duty To Protect Female Explorer Scouts From Being Sexually Exploited

Doe 1, et al. v. City of Murrieta et al. 2002 DJDAR 11757; Court of Appeal of California, Fourth Appellate District, Division Two, 102 Cal. App. 4th 899; 126 Cal. Rptr. 2d 213

The Murrieta Police Department operated a Police Explorer Program which was supervised by Sgt. Attebury and had Officer Derick Boyd as the explorer advisor. Plaintiffs, who were explorers, became infatuated with Officer Boyd and began having consensual sexual encounters with him, including during frequent ride-alongs late at night, from September through December 1997.

Plaintiffs filed a claim asserting that from January 1997 through January 1998, Officer Boyd had engaged in unlawful sexual acts with them while he was on duty. Officer Boyd was also criminally charged with committing multiple acts of unlawful sexual intercourse, and other sexual conduct with minors (plaintiffs), in violation of PC 261.5 (c) and 288a (b)(1), and pled guilty to these charges.

Plaintiffs then filed civil actions against the City of Murrieta and Boyd, alleging negligence, battery, sexual battery, intentional infliction of emotional distress, and breach of contract. The trial court sustained, without leave to amend, defendants' demurrers to three causes of action asserting vicarious liability, and granted defendants summary judgment on the causes of action for negligence and breach of contract.

The California Court of Appeal Fourth Appellate District, concluded that the trial court properly sustained defendants' demurrers to three causes of action, finding that Officer Boyd was not acting in the course and scope of his employment when he sexually abused plaintiffs and thus defendants could not be found vicariously liable. However, as to the first cause of action for negligent hiring, training, and supervision, the trial court erred in granting summary judgment since there were material triable issues of fact as to whether defendants knew or should have known that Boyd was sexually exploiting plaintiffs or posed a risk of doing so.

The Court pointed out that the sexual activity in question did not arise from an officer exercising his job-created law enforcement authority over the victims to force or coerce them to commit sexual acts. Rather, the Court noted, plaintiffs became infatuated with Boyd, pursued him, and consented to his sexual acts. Boyd's sexual misconduct thus did not support vicarious liability on the part of the city or police department. While the sexual activity may have been foreseeable, the illicit sexual acts did not arise out of the exercise of Boyd's job-created authority over plaintiffs. (White v. County of Orange (1985) 166 Cal.App.3d 566; John R. v. Oakland Unified School Dist. (1989) 48 Cal.3d 438)

On the issue of whether the department was negligent, the Court concluded that the defendants were not immune from liability since the Murrieta Police Department's acts and omissions in failing to follow explorer program rules and guidelines, involved ministerial conduct rather than discretionary planning and policy-making acts.

The Court pointed out that the alleged negligent conduct consisted of Murrieta police employees, such as Sgt. Attebury, failing to take protective measures to deter sexual exploitation of plaintiffs. They failed to adequately supervise Officer Boyd and plaintiffs and failed to enforce the Boy Scouts of America and Murrieta Police explorer rules and regulations, when it became apparent plaintiffs were infatuated with Officer Boyd and that Boyd and plaintiffs were spending unusual amounts of time together.

The Court noted that the explorer program manual contained a provision stating that participants "shall not show a display of affection beyond what is considered general or common courtesy toward a member of the opposite sex while in attendance at a Post sponsored function or assignment. ..." The manual also stated "ONLY MEMBERS OVER THE AGE OF EIGHTEEN (18) WILL BE ALLOWED IN THE FIELD AFTER 2300 HOURS. members seventeen (17) years old or younger will be out of the field by 2200 hours on school nights, and 2300 hours on weekend evenings or during the summer. ..."

The Court also held that these provisions were violated, and there was sufficient evidence establishing that the department, including Sgt. Attebury, knew or should have known of the violations, or that they were likely to occur, but did not intervene to deter such violations, or enforce the department rules and regulations.

The Court concluded a special relationship existed between defendants, as sponsors of the explorer program, and the explorers. Defendants owed plaintiffs a duty of care to protect them from foreseeable harm and breached that duty.

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Probable Cause That Person Operating Motor Vehicle Is Using Drugs Is Not Probable Cause To Search Person's Home

People v. Pressey 2002 DJDAR 12025; Court of Appeal of California, First Appellate District, Division Four, 126 Cal. Rptr. 2d 162

Napa Police Officer Campagna and Sgt. Donaldson were in an unmarked police vehicle when they noticed Sandy Pressey driving erratically. A marked police unit was requested to make the stop and Officer Rosin responded and stopped Pressey. Officer Rosin and Sgt. Campagna detected a strong odor of marijuana as they approached the car. Rosin determined that Pressey was driving under the influence of marijuana, and a central nervous system stimulant, and placed Pressey under arrest.

Officer Rosin searched Pressey and located methamphetamine in a glass vial inside a fanny pack Pressey wore around his waist and a marijuana cigarette was located in an ashtray in the car. Two hours after the arrest, Officer Campagna obtained a warrant to search Pressey's residence for methamphetamine, marijuana, and property associated with their use. Officer Campagna stated in his affidavit that "It has been my training and experience that users of controlled substances and narcotics will keep additional quantities of controlled substances and narcotics at their residence in addition to what they carry on their person's [sic] whiled away from their residence. ... ."

The warrant was executed immediately and 10.3 grams of methamphetamine and 20.2 grams of marijuana packaged in small plastic baggies, measuring scales, $1,225 in cash, and various items of drug paraphernalia was found at Pressey's residence. Pressey's motion to suppress was heard and denied by the judge who had issued the warrant finding that probable cause had been established.

The California Court of Appeal First Appellate District, held that probable cause to search the residence of someone suspected of using illegal drugs required more than an opinion or inference that drugs are likely to be present.

The Court pointed out that the finding of probable cause in this case was based on two circumstances: (1) Pressey's arrest during a traffic stop for simple possession of controlled substances, as opposed to possession for sale; and (2) the opinion of an experienced officer that drug users with controlled substances on their person or in their car are likely to have more of those substances where they live.

The Court balked at being asked by the prosecution to extend the holdings of the California and Ninth Circuit cases involving drug dealers, and uphold the search warrant based on the evidence that Pressey was a user of illegal drugs. The Court stated that since such an opinion or inference could be readily supplied or drawn in every case, the People were "[e]ssentially ... urg[ing] us to adopt a per se rule that if the magistrate determines a person is probably a drug [user], then a finding of probable cause to search that person's residence automatically follows."

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"Good Faith" Applies Where DMV Information, Later Found Erroneous, Has Been Relied On By Officer

People v. Hamilton 2002 DJDAR 12151; Court of Appeal of California, First Appellate District, Division Four; 126 Cal. Rptr. 2d 273

Vallejo Police Officer Bartlett stopped the vehicle of Hurmon Lamech Hamilton based on a computerized report from DMV stating that Hamilton's vehicle registration had expired. Hamilton could only produce a valid drivers license. A search of Hamilton's person and vehicle produced cocaine base, marijuana and a firearm, leading to an information charging Hamilton with the unlawful possession of these items and alleging that Hamilton had served a prior prison term. It was later determined that the vehicle registration was current and that the DMV data was in error. Despite this, the trial court denied Hamilton's suppression motion by application of the good faith exception to the exclusionary rule under United States v. Leon (1984) 468 U.S. 897. Hamilton pled nolo contendere to drug and weapons charges and was sentenced to four years in state prison.

The California Court of Appeal First Appellate District affirmed.

The Court pointed out that evidence obtained from a search may be suppressed only if it can be said that the police knew, or should have known, that the search was unconstitutional. The Court stated that when considering whether to apply the "good faith" exception, "... we consider the objective reasonableness of both the officer who conducted the search and those who provided information material to the searching officer."

The Court stated that "... we find that the clerks who generated the DMV database are not peace officers, law enforcement officials or adjuncts of law enforcement. They have no stake in the outcome of criminal prosecutions. As such, we are satisfied that United States Supreme Court and California Supreme Court authorities support the conclusion that the good faith exception to the exclusionary rule may apply when a DMV clerk creates an erroneous data base entry, subsequently relied on by a police officer, who acts objectively in reasonable reliance on the accuracy of the information."

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[The Law Offices of Jones & Mayer located in Fullerton, California focus its practice on representing the interests of public entities as its City Attorney, in labor negotiations, in defending tort litigation and civil rights litigation. Martin Mayer focuses his practice in the area of representing cities, counties and the State on matters arising out of their respective law enforcement agencies.]

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.