KFBK Talk Radio Host John McGinness Interviews David E. Mastagni on AB 931

KFBK Talk Radio Host John McGinness interviewed Mastagni Holstedt partner David E. Mastagni on August 30, 2018 about AB 931, the proposed state law that would have radically changed officer use of force standards.  The bill stalled in the State Assembly yesterday when Speaker Toni Atkins shelved the bill for this legislative session. 

McGinness introduced Mastagni as, "a well-known member of a prominent law firm family," and explained he shared law enforcement concerns about the bill, saying, "We recognize the tremendous flawed changed of what had been proposed and celebrate the fact that at least for now it didn’t happen and I also understand that a significant amount of the work that was done on this is credited to you."  David explained, "I wouldn’t take all the credit on this; I worked with a great team.  From the President of PORAC and their lobbyist to the Cal Chiefs, a long with a lot of other law enforcement stakeholders."

McGinness asked about the constitutional issues about AB 931.  David explained, "We would have been headed to a massive constitutional challenge on this.  The California Constitution, in article 1, section 1, expressly provides every citizen of California the right of self-defense and the defense of property.  And what this bill would have done is it would have held officers to an impossible standard that was much higher than you and I and every other citizen of this state and treated them differently because of their status as a peace officer, which raises another serious constitutional question under the 14th amendment and that’s equal protection."

They also discussed the immediate impacts to officer and public safety.  David explained, "I think [AB 931] would incentivize officers not to do anything and we’ve seen this happen back east.  Baltimore is a great example."

"As a citizen and a father it is of great concern to me as well.  What this kind of legislation really does is it creates a huge disincentive for officers to engage in proactive policing.  Proactive policing and community policing over the last couple of decades is where we’ve seen the best results in reducing crime."

"And it’s going to incentive officers to wait for a call for service and respond only to that call because the feeling will be you can’t second guess me for going where you ordered me to go but if I engage in proactive policing and something happens that controversial I’m going to get second guessed; I’m going to get second guessed from this impossible standard that the Ninth Circuit has even said that would require super human judgement.”

You can listen the whole interview here.

Supreme Court Clarifies Qualified Immunity Applies to Use of Force When Protecting Third Parties

 On April 2, 2018, the United States Supreme Court clarified that peace officers are permitted to use deadly force in order to protect third parties.

In Kisela v. Hughes, three Tucson, Arizona police officers responded to reports of a woman hacking at a tree with a kitchen knife and acting erratically. Upon arriving on the scene, the officers spotted a woman, later identified as Sharon Chadwick, standing in the driveway of a nearby house. A chain-link fence separated Chadwick from the three officers.

Amy Hughes came out of that same house carrying a large knife at her side. She matched the description of the woman who had been seen hacking a tree. Hughes walked toward Chadwick. She stopped no more than six feet from her.

All three officers drew their guns. At least twice they told Hughes to drop the knife. Chadwick said “take it easy” to both Hughes and the three officers. Although Hughes appeared calm, she failed to acknowledge the officers’ presence or drop the knife.

The top bar of the chain-link fence blocked Officer Kisela’s line of fire. He dropped to the ground and shot Hughes four times through the fence. Less than a minute transpired from the moment the officers saw Chadwick to the moment Kisela fired shots.

All three officers jumped the fence, handcuffed Hughes, and called paramedics—who transported her to a hospital. At the hospital, she was treated for non-life-threatening injuries.  Afterwards, Hughes sued Officer Kisela under 42 U.S.C. section 1983, alleging excessive force in violation of her constitutional rights.

While underscoring the need for officers to make spit-second decisions, the Court declined to engage in the second-guessing of officers on the scene. The Court specifically noted that although the officers themselves were in no apparent danger, all three of the officers said at the time of the shooting they subjectively believed Hughes to be a threat to Chadwick. To that end, Officer Kisela was entitled to the defense of qualified immunity

This is an important case for California peace officers. It underscores that officers are entitled to qualified immunity when utilizing deadly force in order to protect third-parties.  

Santa Clara Correctional Officer Vindicated in Mistrial Over Use of Force

On Tuesday, July 25, Santa Clara County Correctional Officer Tim Tri was vindicated when a jury voted 11-1 to acquit him in a use of force case.

Because the jury deadlocked, the judge declared a mistrial.  Tri’s attorney, Erin Dervin from Mastagni Holstedt, told ABC7 that “the eleven jurors are very adamant with us that they saw the case for what it was, that truly Mr. Tri was doing his job, what he’s expected to do and saving his partner.”

Santa Clara Correctional Peace Officers’ Association President Amy Le said, “With this particular case, to me, it seems like a witch hunt.”  She noted Tri should never have been arrested and that Tri was charged three years after the incident, only after a high-profile inmate death.

Erin M. Dervin is an experienced criminal trial lawyer with over 15 years experience as a deputy district attorney where she handled litigation and trials including complex financial crimes, sexual assaults, narcotics, domestic violence and general felony practice and tried over 60 jury trials.  She is a Senior Associate at Mastagni Holstedt.

Supreme Court Overturns 9th Circuit Anti-Officer Use of Force Rule

In County of Los Angeles v. Mendez et al., the United States Supreme Court overruled the Ninth Circuit to put an end to a rule that let people bring lawsuits against officers even when the officers' use of force was reasonable.  Under the so-called "Provocation Rule," officers whose use of force is deemed reasonable, could still be held liable if they did something else, in violation of the 4th Amendment, to make the suspect respond in a way that required force.  The Supreme Court unanimously rejected this theory.

In the Mendez case, two deputies were looking for a wanted parolee when they entered a shack in the backyard of a home without knocking or announcing.  They did not have a warrant to enter the shack. It turned out Mendez lived in the shack.  Mendez got up with a gun in his hand when the officers entered and the officers reasonably believed their lives were in danger and fired in self-defense.  Mendez, who survived, sued, arguing that even if it was reasonable for the officers to shoot him, they should still be liable since they did not have a warrant to search his shack.  The Ninth Circuit agreed, applying its "Provocation Rule."

The Supreme Court, however, held, "The rule’s fundamental flaw is that it uses another constitutional violation to manufacture an excessive force claim where one would not otherwise exist.”  The Court explained "the provocation rule... instructs courts to look back in time to see if a different Fourth Amendment violation was somehow tied to the eventual use of force, an approach that mistakenly conflates distinct Fourth Amendment claims." As a result, the Court concluded, "the provocation rule is incompatible with this Court's excessive force jurisprudence."

Ninth Circuit Clarifies Standards for Reasonable Force

In Lowry v. City of San Diego, the Ninth Circuit clarified some of the standards for determining the reasonableness of the force used. In a 2-1 decision, the Ninth Circuit held a reasonable jury could find the San Diego Police Department’s (“SFPD”) K9 “bite and hold” policy was a severe use of force.  

After a night of drinking with her friends, the plaintiff, Sara Lowry, returned to her workplace and fell asleep on her office couch. Lowry unknowingly triggered the building’s burglar alarm when she got up to use the restroom.

SFPD were called to investigate. Sgt. Bill Nulton and his police dog, Bak, along with two other officers, found the door to Lowry’s office suite open. Sgt. Nulton yelled, “This is the San Diego Police Department! Come out now or I’m sending in a police dog! You may be bitten!” Nulton waited 30-60 seconds, but received no response. He repeated the warnings, but eventually released Bak “off lead” (without a leash). Bak made her way to Lowry’s office and bit Lowry’s lip. Nulton immediately commanded the dog to release her hold.

Lowry brought a § 1983 action against the City, alleging the City’s policy of training its police dogs to bite and hold resulted in a violation of her Forth Amendment rights.  According to the Ninth Circuit, a court must consider both the type of force used and the potential harm it may cause. The district court erred in only considering Lowry’s actual harm rather than the potential harm the K9 could inflict. As Sgt. Nulton told Lowry after the incident, “I just can’t believe that’s the only damage. You’re very lucky. She could have ripped your face off.”

The Ninth Circuit also considered whether other tactics would be appropriate in the circumstances. The court believed Sgt. Nulton could have kept Bak on lead to maintain control. While the court did find Nulton’s multiple warnings were helpful in showing the force was reasonable, it was only minimally so because Lowry did not hear the commands.

Law enforcement agencies may look to the Lowry decision when determining whether an officer used reasonable force in a disciplinary case.

New Jersey Superior Court Rules Police Dashboard Video Recordings are Public Records

A New Jersey Superior Court judge ruled in two separate cases police dashboard video recordings are public records subject to disclosure under New Jersey's Open Public Records Act. In his most recent decision, the judge ordered the Ocean County Prosecutor's Office to disclose a police dash-camera video depicting a police officer's use of a police dog during an arrest. The court found the video was not an exempt "criminal investigatory record," and disclosure did not violate the motorist's privacy rights.

The video shows an officer's use of a police dog during a vehicle stop arrest. The officer has been charged with aggravated assault and official misconduct. Plaintiff John Paff requested a copy of the video from the Prosecutor's Office on May 20, 2014. The Prosecutor's Office denied Paff's request arguing the videos were exempt from disclosure because they were criminal investigatory records.

The court ruled the Prosecutor's Office must disclose the video. He found the "ongoing investigation exception" does not apply because the video was made before the investigation began. This exception does not retroactively render public documents confidential once an investigation starts. Also, since police agencies require regular recording of law enforcement activities, the video constitutes a government record rather than a "criminal investigatory record." And disclosure does not harm the motorist's privacy rights because the incident occurred in a public place, and her face cannot be seen in the video.

The Ocean County Prosecutor's office plans to appeal the rulings. Releasing such videos may taint the jury pool preventing defendants from receiving a fair trial. In addition, the outcome of these cases may spur litigation under public records laws in other states.

Ninth Circuit: Officers' Use of Taser 22 Times Was Justified, Despite Death of Suspect

In Marquez v. City of Phoenix (9th Cir. 2012) 693 F.3d 1167, the Ninth Circuit Court of Appeals held that officers’ repeated and prolonged use of a taser against the suspect, both in “probe mode” and in “drive-stun mode,” which resulted in the suspect’s death, did not amount to excessive force in violation of the Fourth Amendment.

The case started when two Phoenix, Arizona, police officers arrived at a suspect's family home. They learned that the male suspect was attempting to perform an exorcism on his three-year old granddaughter. Upon entering the bedroom, which had been barricaded, the officers found chaos. The walls and furniture were smeared with blood, the suspect was reclining on the bed with a silent and motionless victim in a choke-hold, and the suspect’s adult daughter was naked in the corner screaming with evidence on her face of a recent beating. One officer ordered the suspect to let the child go or he was going to be tased. The suspect did not comply and, the officer deployed his TASER X26 ECD in “probe mode.” The taser was ineffective and the suspect continued to actively resist arrest, even kicking one officer in the groin.

After the victim was removed, the suspect continued to resist. Officers were eventually able to wrestle Ronald into submission after using the taser multiple times. At that point, the officers found that he had a weak pulse. Despite resuscitation efforts, the suspect went into cardiac arrest and died. The cause of death was listed as “excited delirium” and records found that the suspect received nine five-second cycles from the X26; two while it was ineffectively deployed in “probe mode” and seven when it was deployed in “drive-stun mode.” In all, the officers pulled the X26's trigger a combined 22 times.

While the Court found that considerable force was used, the force was not excessive. Interestingly, the Court was “not convinced that the use of an X26 involves deadly force” but even if it did, under the totality of the circumstances, the force was reasonable. The Court highlighted the fact that police officers are often forced to make split-second judgments in circumstances that are tense, uncertain and rapidly evolving. In this situation, officers were responding to a domestic violence call in which the suspect would not release his granddaughter from a choke-hold and then struggled viciously in close quarters against the officers attempting to restrain him while his daughter, who had also been the victim of his attacks, remained in the room throughout.