Acting "Odd" and "Ducking" From Police in a High-Crime Area Did Not Justify Detention, California Supreme Court Rules

    The issue of whether a person’s flight, upon encountering law enforcement, constitutes a sign of guilt or criminal activity, continues to be debated. On May 2, 2024, the California Supreme Court wrestled with this question–to what degree is someone’s conduct “reasonably suspicious” enough to justify an officer’s “stop and frisk” of an individual under the Fourth Amendment? 

    The Court reviewed the case involving a detained man who acted conspicuously when he ducked from officers at night in a known high-crime area. The Court ultimately concluded that the police lacked enough reasonable suspicion to justify the detention or Terry stop.

Background

    In May 2019, around 10:00 p.m., officers Daniel Guy and Michael Marino patrolled a location known to be a “narcotics area” and “gang hangout.” Ofc. Guy had arrested someone in the vicinity the night before for narcotics crimes. As the officers patrolled, they saw Marlon Flores standing alone in the street beside a parked Nissan. Flores looked at the officers, walked around the back of the Nissan, ducked behind it, and then moved his head in and out from behind the Nissan. As the officers approached, they observed Flores bent over, facing away from them with both hands near his shoe. 

    When Ofc. Marino pointed his flashlight at Flores, Flores exhibited no reaction, remained bent over, and continued moving his hands near his feet. The officers directed Flores to stand up. Once Flores straightened, officers directed Flores to place his hands behind his head. Flores complied and the officer placed him in handcuffs. Ofc. Guy pointed his flashlight into the car and noticed a drug pipe. Flores admitted the Nissan was his. When retrieving Flores’ wallet from the vehicle, Ofc. Guy found a folded dollar bill containing suspected methamphetamine and recovered a revolver. 

    The officers testified that they detained Flores because they believed he acted suspiciously by attempting to conceal himself and pretending to tie his shoe. They suspected Flores was loitering for the use or sales of narcotics. Ofc. Guy articulated the area and Flores’ behavior upon seeing the police as his justification for the stop. 

Lower Courts’ Judgments: Reasonable Suspicion Satisfied

    Flores filed a motion to suppress the evidence seized, which the trial court denied. The court reasoned that Flores’ acts of “ducking, remaining hunched over, and toying with his feet,” even after officers approached, was “odd behavior” and “suspicious.” Consequently, the court found Flores’s behavior enough to find reasonable suspicion and enough to detain him. 

    The Court of Appeal affirmed the lower court’s judgment. It found reasonable suspicion justified the detention on the following facts: (1) Flores saw police and tried to avoid contact with them by ducking down behind a parked car; (2) during the ducking, Flores continually moved his hands, keeping them out of sight of the police; (3) as they approached, Flores persisted in his odd crouch position for far too long a period of time; and (4) the activity occurred at 10:00 p.m. in an area known for its illegal drug and gang activity. 

California Supreme Court Review: Unauthorized Detention Due to Lack of Reasonable Suspicion 

    The California Supreme Court reversed the lower courts and found that the officers unlawfully detained Flores. The Court held that the circumstances, when viewed in totality, were insufficient to provide objective reasonable suspicion that Flores was engaged in criminal activity. As such, the Court remanded the case back to the trial court with the directive to grant Flores’ suppression motion.

Essentially, the Court reasoned that: 

1. There was no headlong flight, and Flores' disinclination to engage does not carry the same salience as headlong flight; 
2. Presence in a high-crime area and “odd” or “nervous” behavior is relevant to the reasonable suspicion calculus, but does not per se establish reasonable suspicion and;
3. “Nervous” or “evasive” behavior may be totally unrelated to the consciousness of guilt and could just as easily be motivated by other factors.

On Refusal to Interact

    It is well settled that a person may decline to engage in a consensual encounter with police. Such refusal to cooperate, without more, does not meet the “reasonable suspicion” standard. The Fourth Amendment protects an individual’s “right to decline to interact with police and ‘go on one’s way.’” Nonetheless, the manner in which a person avoids contact may be considered by officers and courts in assessing reasonable cause for a detention.

    “Nervous” or “evasive” behavior, however, is still a pertinent factor in determining reasonable suspicion and need not be ignored. Examples of such behavior include ducking and hiding, headlong flight, a sudden change in direction, walking quickly away while looking at the officer, and failing to acknowledge the officer’s attempt to engage.

    Here, the Court reasoned that although Flores’ behavior could reasonably be construed as “odd” and “noteworthy,” particularly when done in reaction to seeing the police, his behavior, on its own, failed to support a reasonable suspicion that justified detention. Mere deviation from social norms does not signal criminal behavior.

On “Headlong Flight” & Balancing an Individuals’ Right to be Free from Unjustifiable Intrusion

    The Court referenced other cases where courts deemed detention justified due to fleeing. One case involved an individual who fled from officers upon their arrival (Illinois v. Wardlow) and another involving an individual who drove away from the crime scene as police arrived (People v. Brown). In both cases, the courts concluded that flight upon seeing the police supported reasonable suspicion. Headlong flight “is not necessarily indicative of wrongdoing, but it is certainly suggestive of such.” It elevates to more than a simple refusal to engage; “it is the consummate act of evasion.”

    Despite this, the Court reasoned that Flores’ ducking, toying with shoes, and failure to acknowledge the officers suggested an unwillingness to interact, but did not equate to “headlong flight.” The Court noted that the special circumstances evidenced in the other cases lacked in Flores’ case. The officers did not see Flores interact with anyone or hide anything. No one called for help or reported a crime in progress, and the hour was not particularly late.

    Further, the officers could have continued to observe Flores to assess his suspected criminality, and further investigation may have changed the calculus. Ofc. Guy failed to articulate more than a “hunch of criminal activity,” and a “mere hunch does not create reasonable suspicion.”

    The Court relied on Terry v. Ohio, where the U.S. Supreme Court (SCOTUS) made efforts to balance the police power to “stop and frisk” with an individual’s Fourth Amendment right to be free from unjustifiable intrusions of one’s personal security. Terry held that an officer must have a reasonable, articulable suspicion of criminal activity to conduct a brief investigatory stop. SCOTUS emphasized that detention is a “serious intrusion” and may “inflict great indignity and resentment.”

    The California Supreme Court built on the concerns voiced by Terry, noting that an individual’s lived experiences may influence how they respond to a police presence. The Court considered that the series of acts observed by an officer might each be innocent in and of themselves and not necessarily related to any consciousness of guilt. Moreover, the Court stated no particular factors need to be present to justify a detention.

Practical Implications 

    The establishment of “reasonable suspicion” will always be contextual. It will be informed by the totality of circumstances and objective scrutiny of the officer’s reasons for infringing on a detainee’s personal liberty. 

    Flores does not alter the standard for reasonable suspicion. In order to detain a citizen on suspicion of criminal activity, officers still must have the level of suspicion sufficient to justify a Terry stop. However, under Flores, the analysis becomes more fact-intensive. Casually trying to avoid contact or observance is not enough, on its face, to warrant a detention. Nervous behavior and attempts to conceal oneself may provide relevant context. But before officers may detain someone, they must be able to articulate a legally cognizable reason to infringe on that person’s liberty. Officers should be wary to adopt “a bright line rule” in assuming that detention is authorized in any instance in which an individual avoids police contact.

(People v. Flores (2024) 60 Cal.App.5th 978) 

JUST IN: Sixth District Court of Appeal Rules in Favor of Palo Alto Firefighters, Invalidating Measure D and Ordering the City to Restore Interest Arbitration for Employment Disputes

    On June 3, 2024, the Sixth District Court of Appeal issued a published decision vindicating the bargaining rights of the Palo Alto Firefighters, IAFF Local 1319 over the City’s effort to repeal binding interest arbitration to resolve impasses in negotiations for fire and police employees. The appellate court previously held the City must meet and consult with the union in good faith before submitting a repeal initiative to the voters, but remanded the issue of remedy holding the Attorney General must approve a Quo Warranto action to invalidate a voter initiative.  (City of Palo Alto v. Pub. Emp. Rels. Bd, 5 Cal. App. 5th 1271 (2016)) The trial court refused to invalidate the repeal despite finding the City unlawfully exercised its right to place a ballot measure before the voters.  On this second appeal, the appellate court invalidated the initiative, holding the trial court abused its discretion in not providing this remedy which restores the parties to the status quo.  Kathleen Mastagni Storm argued this appeal.

Case Background

    Over a decade ago, the City of Palo Alto repealed binding interest arbitration from the City Charter through a ballot Measure. The matter was litigated at PERB, as the City refused to meet and consult over the impasse procedure changes. Local 1319 prevailed and PERB found it was an unfair labor practice. The City then appealed the decision to the Sixth District Court of Appeal (Sixth DCA). The Court of Appeal upheld PERB’s decision, but remanded the case to PERB to modify its remedy. PERB initially invalidated the Measure, but the Appellate Court found that remedy violated the separation of powers doctrine, as PERB cannot order a city to take a legislative act. PERB’s modified order voided the City’s act of placing the Measure on the ballot.

    After PERB’s decision became final, the City refused to restore the binding interest arbitration procedures, forcing Local 1319 to seek leave to sue on behalf of the State of California in a Writ in Quo Warranto. The writ is an ancient process by which the court can declare a government entity exercised or held a franchise unlawfully and invalidate the act. Here, the City unlawfully placed Measure D before the electorate and Local 1319 sought to invalidate the measure. The Attorney General’s office granted leave to sue on behalf of the State of California because there is a statewide interest in enforcing the MMBA, ensuring ballot measures are enacted correctly and ensuring stable employer-employee relations. 

    Local 1319 prevailed at the trial court, but the judge refused to order Measure D invalidated. Rather, enforcement of Measure D was stayed until the parties met and consulted in good faith. Then, the City could act on its repeal of interest arbitration from the Charter. In order to challenge the remedy, Local 1319 appealed the decision back to the Sixth DCA. Here, the question presented to the Sixth DCA concerned whether a successful challenge to a municipal charter provision requires invalidation and whether the trial court abused its discretion in issuing its selected remedy. Local 1319 argued Code of Civil Procedure section 809 required invalidation, that invalidation was the only way to give meaning to PERB’s decision voiding the Measure, and that it was the only way to restore the status quo and place the parties on a level playing field. 

Sixth District Court of Appeal on Reversing Trial Court Judgment

    The Court of Appeal agreed with Local 1319 and ordered the trial court’s judgment be reversed, interest arbitration be restored to the Charter and Measure D be invalidated. The Court of Appeal noted that the trial court attempted to balance competing factors, including the will of the voters, but failed to give sufficient weight to PERB’s and the Attorney General’s judgment that uniform compliance with the meet and confer requirements of the Meyers-Milias Brown Act are matters of statewide public importance.  The Sixth DCA found consideration of the local electorate over the statewide importance of municipal compliance with the MMBA was erroneous, and the trial court abused its discretion in refusing to invalidate Measure D. The Sixth DCA highlighted that electors lack the power to ratify a defective ballot measure. 

    The Court of Appeal also found the trial court did not give sufficient weight to PERB’s underlying determinations, including that the failure to meet and consult was a per se violation and the traditional remedy is restoration of the status quo. The Sixth DCA noted that the “MMBA’s meet and confer provisions do not dictate the substance of a municipality’s labor provisions, but they do mandate that municipalities follow a process that includes consultation with affected organizations.” And the Court highlighted what Local 1319 pointed out, “the public has an interest in ensuring charter amendments are validly enacted in accordance with the law and securing stable employer-employee relations.” The Sixth DCA determined invalidation was necessary to restore the status quo and allow the parties to bargain on a level playing field if the City decided to try and repeal binding interest arbitration in the future.

    This is a huge victory for Local 1319, labor unions statewide, and PERB. The decision reaffirms PERB’s authority to effectively remedy MMBA violations and should stand to deter other municipalities from engaging in similar behavior — circumventing their obligation to meet and confer by submitting the matter directly to the voters. 

    This is the first published appellate decision on this issue where a writ in quo warranto was granted in California invalidating a ballot measure passed in violation of the Meyers Milias Brown Act (MMBA). Brian Rice, President of California Professional Firefighters called this, “A historic win for Firefighters across California.  Measure D in Palo Alto was one of the foundational attacks on public safety employees over a decade ago. The legal overturning of Measure B in San Diego a few years ago and now Measure D in Palo Alto are sentinel decisions for the California Firefighters.”  

    Joseph Penko, President of Local 1319 noted “the Palo Alto Firefighters felt strongly in 2011, and feel just as strongly today, that binding arbitration is an important tool for ensuring fair negotiations since striking is not an option in the fire service. Palo Alto’s decision to ignore the procedures set forth by law in revoking our rights was a miscarriage of justice. We are grateful that the courts have finally recognized that and restored our binding interest arbitration.”

For more information, please see our previous blog post on this case, located here. 

Partner Kathleen Mastagni Storm and Senior Associate Joshua Olander represented Local 1319 throughout this litigation and Kathleen argued the case in March of this year.

Watch Kathleen Mastagni Storm's March 14, 2024 Oral Argument in the 

Sixth District Court of Appeal using the above link. 

Federal Appellate Court Grants Qualified Immunity For Use of Taser on Fleeing Suspect

The Sixth Circuit Court of Appeals recently dismissed a 1983 lawsuit against officers alleging excessive force in the use of a taser against a subject who engaged in pre-arrest flight. (Brown v. Giles, 95 F.4th 436 (6th Cir. 2024)) Notably, the court found that a taser prong striking the suspect's head was not clearly established as excessive and that other allegation clearly refuted by the video footage should be dismissed as well.

The court explained the suspect's mother called the police when he showed up at her workplace seeking money and a place to stay.  The suspect, who suffered from addiction and homelessness, had a warrant out for his arrest.  When contacted by the officers, he provided a fake name and then fled.

One of the officers pursued him and mid-stride fired his taser with one probe striking his head and the other his back.  The suspect fell to the ground and hit his head.  While handcuffing him, the officer held his taser against his back in case he resisted.  The suspect sued claiming the use of the taser was excessive and caused injuries.  He also claimed he was drive stunned while being handcuffed, a claim contradicted by the video.  

The court wasted little time affirming that its reasonable to tase fleeing suspects, so that tasing alone is insufficient to establish excessive force.  The court noted that while lethal force would not have been appropriate, tasers are not lethal force.  The court also rejected the argument that this particular use of the taser was unreasonably dangerous because the suspect was running and struck in the head.  The court explained:

"We doubt that this difference matters in the context of a mid-chase decision to tase a fleeing suspect. It's difficult to imagine how a sprinting officer could aim his taser precisely enough to (1) hit a suspect with both taser probes while (2) ensuring that neither probe hits the suspect's head. It's even harder to imagine that the Fourth Amendment requires such a feat. That's precisely why we defer to the “split-second” decisions of officers in fast-paced, complex situations."

As for the claim that the officer continued to tase the suspect after he was subdued, the court noted the alleged conduct would constitute excessive force if true.  However, the court dismissed these allegations based on the video of the incident demonstrating that the suspect was only tased once.  The officer never deployed the taser while pressed against the suspect's back, as the "lack of noise utterly discredited" the suspect's claim. 

Importantly, the court explained "we don't need to accept as true any allegation 'blatantly contradicted' by the video. Scott v. Harris, 550 U.S. 372, 380, 127 S.Ct. 1769, 167 L.Ed.2d 686 (2007). This dooms [the suspect's] claim." 

MORE ON THE RIPA LEGISLATION: David Mastagni Joins PORAC's "On the Job" Podcast on "Standing Up for Officer Privacy Rights"

       

    In April, David Mastagni and Tim Talbot sat down with PORAC President Brian Marvel to discuss a significant legal victory in the realm of law enforcement rights and privacy. The episode examines the PORAC v. Bonta matter in relation to the fight for officers' rights to not have to disclose their gender. The episode provides an overview of the Racial and Identity Profiling Act (RIPA) that forced police officers to disclose their gender identity when reporting the outcome of a traffic stop. 

    The episode also discusses the implications of overreaching Department of Justice (DOJ) policies on law enforcement professionals and the LGBTQ+ community and discusses officer privacy double standards. David Mastagni highlights how the RIPA gender disclosure requirement contradicts the privacy standard Attorney General Rob Bonta declared regarding school teachers and parent notifications of a student's gender identity. The episode also discusses the regulation's implications and how the regulations infringe upon the constitutional rights of peace officers. An explanation of the legal intricacies surrounding PORAC's temporary restraining order against DOJ is also discussed. 

    You can listen to the podcast by clicking here. 

    You can also watch the podcast on YouTube here. 

JUST IN: Permanent Injunction Issued Against the State of California Related to the RIPA Requirement to Disclose Gender Identity

    On April 30, 2024, Judge Christopher E. Krueger of the Sacramento County Superior Court issued a Permanent Injunction against the State of California prohibiting the DOJ from enforcement of RIPA’s gender disclosure requirements set forth in section 999.226(a)(23) of Title 11 of the California Code of Regulation.

    PORAC, the California Association of Highway Patrolmen, the California Police Chiefs Association, and the California State Sheriffs’ Association filed a legal action and obtained a TRO against the California DOJ to stop Attorney General Rob Bonta’s implementation of these forced identification regulations on January 22, 2024.

    David E. Mastagni and Timothy K. Talbot appeared in Sacramento Superior Court to request issuance of a Permanent Injunction pursuant to stipulation with the DOJ on April 30, 2024.  Today, the Court issued its order granting the permanent injunction which stated in pertinent part:

• “Defendants and their agents, employees, and representatives are permanently enjoined from enforcing section 999.226(a)(23) of Title 11 of the California Code of Regulations, a regulation under the California Racial and Identity Profiling Act of 2015 (RIPA) that requires certain law enforcement officers to document their gender identity when performing a stop.  (Gov. Code § 12525.5.)”

• “Defendants and their agents, employees, and representatives are permanently enjoined from requiring any individual required to comply with RIPA to provide the “gender of officer,” as defined in section 999.226(a)(23) of Title 11 of the California Code of Regulations, on any disclosures required by RIPA.”

    The Court’s minute explained:

    “The declarations submitted by Plaintiffs with the application for the temporary restraining order, coupled with the decision by Defendants State of California, California Department of Justice and Attorney General Rob Bonta not to contest that evidence and to stipulate to the injunction, provide sufficient factual and evidentiary basis for the issuance of a permanent injunction. The Court will approve the stipulation for final judgment.”

    We are proud to have represented law enforcement labor and management organizations to jointly protect the privacy rights of the peace officers who protect us all.

    For more on the RIPA legal battle, visit our previous blog post here outlining RIPA more fully.