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• First Amendment freedom of speech 
• Public forums and the First Amendment 
• Free speech activities 

Whether a person may constitutionally exercise his or her constitutional First Amendment free speech (or California Speech Clause) rights at a specific location depends upon whether the location at issue is recognized as a public forum. 

The Sacramento Hmong New Year Organization leased the Cal Expo fairgrounds to host the group’s 2018 Hmong New Year Festival in 2018. (The?Hmong people?are an indigenous group originally from East and Southeast Asia.) The festival took place over four days in the fall of that year and attracted nearly 30,000 attendees. Vendors paid to rent booths and attendees were required to purchase a ticket for entry.  

Burt Camenzind is an Evangelical Christian who hoped to spread the message of his faith at the festival. He arrived at the fairgrounds wearing a vest covered in pockets, each filled with custom coins bearing biblical verses and other religious messages, some in the Hmong language. Camenzind intended to distribute the coins to festival attendees as he talked to them, one-on-one, about his religion.  

The Cal Expo is owned by the state of California Exposition and State Fair Fairgrounds in Sacramento County. About half of the 800-acre property is surrounded by fencing, within which are various indoor and outdoor event facilities, and is accessible only through entry gates. The area outside of the fence largely consists of parking lots and sidewalks leading to the gates. The Cal Expo Police Department provides security for all events that take place on the grounds.  

Upon Camenzind’s arrival, his bulging pockets attracted the attention of the Cal Expo Police. Cal Expo officers told him he could distribute his tokens only from designated “Free Speech Zones,” located just outside the entry gates, and not from inside the gated-off festival itself. This was in accordance with Cal Expo’s “Free Speech Activities Guidelines” (the “Guidelines”) which govern all events at the fairgrounds. The Guidelines, in general, prohibit attendees from leafletting, picketing, or gathering signatures—collectively described as “free speech activities”—within the enclosed portion of the fairgrounds.? 

For privately hosted events, such as the Hmong New Year Festival, organizers typically prohibit attendees from soliciting other attendees to preserve value for those vendors who pay to rent booths. The Guidelines also restrict free speech activities outside the Expo’s gates to designated “Free Expression Zones,” located directly outside the entry gates, and available at no cost on a first-come, first-served basis. Anyone entering the enclosed portion of the fairgrounds must walk within a few dozen feet of these zones.  

But Camenzind, who wished to enter the fenced-off areas to distribute his tokens, was not satisfied with having to remain in a Free Expression Zone. So he purchased a ticket and entered along with all the other festival attendees. Caught by the Cal Expo Police handing out his tokens, he was 86’d from the park. Asked if he could then use the “Free Expression Zones,” the officers told him “no,” that he had to leave the grounds altogether.  

Camenzind filed suit in the Sacramento Superior Court (subsequently removed to the federal district court on the Cal Expo’s motion), arguing that the Cal Expo’s rules and his removal from the park violated the First Amendment of the United States Constitution and the?Speech Clause of the California Constitution. The federal district (trial) court first granted Camenzind’s motion for summary judgment on the issue of the Cal Expo Police Officers’ refusal to allow him to use the Free Expression Zone after he’d been caught passing out his tokens inside the park.  But otherwise, the federal district court ruled against Camenzind, finding the Cal Expo’s Guidelines to be constitutional; i.e., that they did not violate Camenzind’s right to free expression under the United States or California Constitutions.  Camenzind appealed. 

The Ninth Circuit Court of Appeal, in a 2-to-1 decision, affirmed. The dissenting opinion did not disagree with the majority, other than to suggest they return the case to the trial court for further evidence. 

The issue on appeal was whether the Cal Expo (both within and outside its gates) constitutes a “public forum” under the circumstances where  the property is being rented for a privately organized event. Secondly, in light of that determination (as discussed below), the issue becomes whether the restrictions imposed by the Cal Expo Guidelines were constitutionally permissible.  

General Rules 

The general principles are well-settled, if not easy to understand. It is a rule of law that the?First Amendment reflects this country’s “profound commitment to the principle that debate on public issues should be uninhibited, robust and wide-open.” (New York Times Co. v. Sullivan (1964) 376 U.S. 254, 270.)  

The?First Amendment affords special protection to “places which by long tradition or by government fiat have been devoted to assembly and debate.”?To ascertain what limits, if any, may be placed on protected speech, courts often focus on the “place” where that speech is held, while considering the “nature of the forum the speaker seeks to employ.” (Frisby v. Schultz (1988) 487 U.S. 474, 479.) The issue then becomes whether the place chosen by the speaker is to be classified as a “public forum,” i.e., where the right to express one’s opinions and ideas is protected by the First Amendment. And then, even if it is a public forum, “the government may (still) impose reasonable restrictions on the time, place or manner of protected speech.” These time, place and manner regulations “must be content neutral, narrowly tailored to serve a significant governmental interest, and leave open ample alternative channels for communication of the message.”  

Such areas, sometimes referred to as “public fora,” facilitate the free exchange of ideas essential to our democracy.?Also, it must also be noted that the government may create new “public fora” by intentionally designating properties for expressive purposes The court described some traditional examples of public fora to include streets, parks and sidewalks—publicly owned spaces which, for “time out of mind, have been used for purposes of assembly, communicating thoughts between citizens, and discussing public questions.” But despite this, “protected speech is not equally permissible in all places and at all times.”?(Cornelius v. NAACP Legal Def. & Educ. Fund, Inc. (1985) 473 U.S. 788, 799.)  

First Amendment and a Public Forum 

Camenzind argued on appeal, as he did in the trial court, that the Cal Expo fairgrounds in their entirety—in and outside the gates—constitute a “public forum,” entitling his speech to the most robust protection of the federal and state constitutions. In other words, he believed that restricting him to the “free speech” area alone, outside the gates, violated his First Amendment rights. The Ninth Circuit Court of Appeal disagreed.  

In a very long, detailed analysis, the court looked at the issue of what is, and what is not, a constitutionally protected “public forum,” both under federal law and the “sometimes...different” California standards. In Camenzind’s suit, it was unclear whether he was challenging both his having been expelled from within the gates and the subsequent denial of his right to use the “Free Expression Zones,” or just the former. So, the court discussed both.  

In general, when determining whether a location is a traditional public forum for?First Amendment?purposes, a court is to consider three factors: “(1) the actual use and purposes of the property, particularly its status as a public thoroughfare and availability of free public access to the area, (2) the area’s physical characteristics, including its location and the existence of clear boundaries delimiting the area and (3) traditional or historic use of both the property in question and other similar properties.” (Wright v. Incline Village General Improvement District (9th Cir. 2011) 665 F.3rd 1128, 1135.)  

In this case, the court found that none of these factors favored treating the enclosed portion of the fairgrounds as a traditional public forum. First, the space in issue (inside the enclosed gates) does not serve as a public thoroughfare; people have to pass through a security checkpoint and buy a ticket to get in. Otherwise, it is locked up for most of the year. Users, such as the Hmong, have to pay rent for the privilege of using it. The property is thus in no sense “continually open” to the public as, for example, a park or public square.?Also, the boundaries of the enclosed area are clearly marked by the fencing surrounding it. And lastly, there is nothing to suggest that “access to [the forum] ha[s] been granted as a matter of course to all who s[eek] to distribute material.” 

The court determined, therefore, that inside the gates of the fairgrounds is not a “public forum” entitling Camenzind to use it to spread his message.  

Outside the gates (i.e., the remaining 400 acres used for parking and walkways) is a closer question. But Cal Expo in effect conceded this issue when it created the “Free Expression Zones” which, per the court, take up several hundred feet just outside the entry gates. These zones, the court concluded, “undoubtedly constitute public fora.” 

California Speech Clause 

Despite this ruling, the court declined to find whether under the traditional federal standards Camenzind was entitled to use them, determining instead that under the California standards, he was in fact so entitled. The California Speech Clause provides as follows: “Every?person may freely speak, write and publish his or her sentiments on all subjects, being responsible for the abuse of this right. A law may not restrain or abridge liberty of speech or press.”?(Cal. Const. art. I, sec. 2(a).)  

California has developed its own “extensive body of case law,” applying this state constitutional provision to the issue of free speech and public forums. For instance, in some settings, the “California Speech Clause” treats privately controlled properties as public fora. One such example involves privately owned shopping centers that are not public fora for purposes of the federal?First Amendment, but are under the California Speech Clause. (See?Pruneyard Shopping Center v. Robins (1980) 447 U.S. 74, 81.)  

However, with the Ninth Circuit here recognizing that “California’s public forum test, and how that test differs from its federal counterpart, are not abundantly clear,” the court concluded (after a long and painful dissection of California’s rules as they differ from the federal standards) that Camenzind was in fact entitled to exercise his free speech rights in the Cal. Expo’s Free Expression Zones. (See Park Management Corp. v. In Defense of Animals (2019) 36 Cal.App.5th 649, as the controlling authority.)  

The Cal. Expo Police, therefore, violated his right to do so when they told him that he had forfeited this right after they caught him inside the gated areas passing out his tokens. Applying the California standard, the court upheld the district court’s ruling that the Free Speech Zones outside the Cal Expo’s gated-off area did in fact constitute a public forum under the Speech Clause, and that Camenzind should not have been denied the right to use it as such.  

Summary 

The court held that Camenzind was lawfully prevented from distributing his tokens and advocating his religious beliefs within the gated, ticketed, area of the fairgrounds. At the same time, the Free Speech areas, which were content-neutral because they are allocated on a first-come, first-served basis, while at the same time served the “substantial state interest” of preventing congestion in that area by “confining distribution, selling, and fund solicitation activities to fixed locations,” provided him with the ideal place to accomplish his goals.  

The district court’s rulings on these issues, therefore, were upheld. 

So why am I throwing all this complicated civil law stuff at you, as a law enforcement officer? 

I briefed this case because it describes a situation similar to what you may someday become involved with. And it is important that you remember that it is a civil issue and that you treat it accordingly. At some point in your career (likely more than once), you will be called to a shopping center, a big box store, or some similar establishment (e.g., Target, Sears, Safeway, etc.), and be asked by the store’s representative (i.e., a security guard or manager) to arrest a “trespasser” who insists on setting up a card table at a store’s entrance and passing out leaflets or collecting signatures despite the “trespasser” being told that it is private property and that he needs to take his card table and literature elsewhere.  

The store representative is likely to wave some case decision under your nose (e.g., Pruneyard Shopping Center v. Robins, supra, cited above), telling you that it supports his or her position. 

But what you need to recognize is that the Pruneyard is a civil case, with a complex (as in the above case) decision reached by a civil court after an extensive evidentiary hearing. You, as a responding peace officer, are simply not qualified nor equipped to determine whether Pruneyard, or any other similar case decision, applies to your specific situation. Every situation is different. Every situation requires a detailed analysis of the fact-specific circumstances relevant to the facts with which you are confronted. Every situation is subject to a flexible “time, place, and manner” analysis that you simply are not equipped to evaluate. Also, California’s trespass statutes (i.e., P.C. § 602) don’t resolve the issue, there being no such thing as a simple “P.C. § 602/Trespass,” and none of the trespass subdivisions apply.  

Your response, therefore, should be for the store representative, or whoever else it is with whom you might be dealing, to file the appropriate civil action in court if they wish to prevent the leaflet distributor/signature collector from plying his or her trade on the property. On this issue, I have compiled over the years an extensive 61-page memo on this subject (and other related topics) which I will e-mail you upon request. (Note my new e-mail address: RCPhill101@yahoo.com.)  

If you’ve already gotten this memo from me, note that I update it with new materials about once every month or two. So, you might want to ask for a new copy.  

Undercover officers and their recording devices may lawfully enter a residence so long as the purpose of the entry is not misrepresented. 

• Warrantless entry into a residence by undercover officers 
• Surreptitious recordings by undercover officers 
• Fourth Amendment searches per Katz v. United States 
• Fourth Amendment searches per Florida v. Jardines  

A Fourth Amendment search is illegal under two legal theories: 

(1) where a suspect’s subjective expectation of privacy that society recognizes as reasonable is violated  

(2) when the government physically occupies private property for the purpose of obtaining information while engaging in conduct not explicitly or implicitly permitted by the property owner. 

Undercover Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) agents, working with the Costa Mesa Police Department and a confidential informant, purchased methamphetamine and firearms from Daniel Alvarado. The transaction took place in room 352 of the Valencia Inn Motel in Anaheim, California, on Jan. 9, 2020. Subsequently, the ATF and CMPD officers—still undercover—made arrangements to buy more meth on Jan. 22. Alvarado, however, directed the officers this time to come to Room 302 of the same motel. It was soon determined that room 302 was rented by defendant Christopher Esqueda, who had already paid for a three-week stay.  

Upon officers’ arrival, Alvarado opened the door and allowed the undercover officers to enter, where he introduced them to Esqueda. Unbeknownst to either Alvarado or Esqueda, the officers were surreptitiously wearing audio-video recording devices that captured the interactions in the motel room. After dealing with Alvarado for the purchase of the meth, the officers asked about firearms, specifically mentioning a “Derringer” Alvarado had earlier told the officers he had. At Alvarado’s direction, Esqueda produced the Derringer—subsequently determined to be a .22- caliber revolver—and handed it to an ATF agent, warning the agent that it was loaded. The ATF agent gave Alvarado $400 for the firearm.  

The officers then left the room, still wearing their recording devices. Esqueda was indicted by a federal grand jury under 18 U.S.C. §922(g)(1) for being a felon in possession of a firearm. (Alvarado is not a part of this prosecution.) Esqueda pled guilty after his motion to suppress was denied. Sentenced to two years in prison (plus three years of supervised release), Esqueda appealed. 

The Ninth Circuit Court of Appeal affirmed.  

On appeal, Esqueda argued that the undercover agents’ warrantless surreptitious use of audio-video recording devices in his motel room was an illegal search and as such, violated the Fourth Amendment and that the results should have been suppressed by the trial court. The issue, therefore, was whether the use of these recording devices amounted to a search or seizure which—accomplished without a search warrant—was illegal.  

The court ruled that it was not illegal, upholding the ruling of the trial court when it denied Esqueda’s motion to suppress the resulting audio-video evidence.  

Over the years, the U.S. Supreme Court has determined that a “search” may occur in one of two ways. Initially, the court established what is now known simply as the “Katz test.” Pursuant to this theory, “a search occurs when the ‘government violates a subjective expectation of privacy that society recognizes as reasonable.’” (Kyllo v. United States (2001) 533 U.S. 27, 33; citing?Katz v. United States (1967) 389 U.S. 347, 361.) Forty-five years later, the Supreme Court announced a new rule, often referred to as the “unlicensed physical intrusion test.” By this test, an illegal search occurs when the government “physically occupie[s] private property for the purpose of obtaining information,”?while “‘engag(ing) in conduct not explicitly or implicitly permitted’ by the property owner.” (United States v. Jones (2012) 565 U.S. 400, 404;?Florida v. Jardines (2013) 569 U.S. 1, 6.)  

The Supreme Court has also referred to this second test as the “common-law trespassory test” under the theory that the?Fourth Amendment?“embod[ies] a particular concern for government trespass” on constitutionally protected areas. (Jones, at 406.) (I’m going to refer to this as simply the “Jones/Jardines” test, for obvious reasons.)  

Esqueda conceded that the “Katz test” did not provide him with any relief – that the agents did not violate his “subjective expectation of privacy that society recognizes as reasonable” when they entered his motel room with audio-video devices recording what occurred. This concession was likely brought about by the Ninth Circuit having previously held that “‘an undercover agent’s warrantless use of a concealed audio-video device in a home into which he has been invited by a suspect’ is not a?Fourth Amendment?search under the Katz framework.” (United States v. Wahchumwah (9th Cir. 2013) 710 F.3rd 862, 868.)  

But that doesn’t mean the Jones/Jardines test doesn’t apply. In both Jones and Jardines, the Supreme Court held that “(w)hen the government obtains information by physically intruding on persons, houses, papers, or effects, a search within the original meaning of the??has undoubtedly occurred.”  (pgs. 406, fn.3, and 5, respectively.)  Absent a warrant, such a search is illegal.  This “property based approach” actually existed prior to Katz, it being based upon the common law.  Also, the Court here notes that Katz was not intended to do away with this property based theory, but merely supplement it.  For these reasons, the Court rejected defendant’s arguments that Jones/Jardines was something new, and was intended to replace the Katz theory.  To the contrary, both theories apply, each intending to supplement the other.  Thus: “(T)he?Fourth Amendment?protects not only reasonable expectations of privacy, but also against (warrantless) physical intrusions by law enforcement onto property.”  But either way, defendant argued that when the agents entered his motel room with functioning audio-video devices recording what occurred therein, they “exceeding the scope of their license to enter the motel room,” violating his Fourth Amendment rights under Jones/Jardines.  The Court disagreed. In making his argument, defendant relied primarily upon the facts in Florida v. Jardines.  In Jardines, the Supreme Court held that when officers brought a drug-sniffing dog onto the front porch of a home for the purpose of investigating drug trafficking, that to do so was an “unlicensed physical intrusion,” and therefore a?Fourth Amendment?search.  A?Fourth Amendment?search had occurred, says that Supreme Court, because the officers gathered information “by physically entering and occupying the [curtilage of the defendant’s home] (for the purpose of) engag(ing) in conduct not explicitly or implicitly permitted by the homeowner.”?Although there existed an implied license to approach the door and knock because “that is no more than any private citizen might do,” when the officers used a trained drug dog “in the hopes of discovering incriminating information,” that’s another issue.  “There is no customary invitation to do that.”  Defendant’s argument in the instant case was that by coming into his motel room surreptitiously recording everything that occurred without defendant’s knowledge or permission, the agents did the same thing that the officers in Jardines did.  Per the defendant: “(T)he officers engaged in conduct that he did not ‘explicitly or implicitly permit[]’ and thus exceeded the scope of their license to enter the motel room.”  The Court disagreed.  Defendant conceded that there is no Fourth Amendment search merely because the agents concealed their true identities for the purpose of obtaining consent to enter the motel room in the investigation of illicit conduct.  The U.S. Supreme Court has long since upheld such surreptitious residential entries.  (Lewis v. United States (1966) 385 U.S. 206, 211.)  “‘(N)o interest legitimately protected by the?Fourth Amendment?is involved’ where an informant was physically present in the space ‘by invitation, and every conversation which he heard was either directed to him or knowingly carried on in his presence.’”  (Hoffa v. United States (1966) 385 U.S. 293, 302.)  Once inside, the agents (using recording devices they brought in with them as opposed to having planted them during a previous illegal entry) then recorded only what they personally could see and hear.  The U.S. Supreme Court has held that a defendant has no?Fourth Amendment?right to object to such reliable forms of evidence, like recordings, created by an undercover officer who is lawfully present in a space with express consent.?(See? Lopez v. United States (1963) 373 U.S. 427, at 438-439; and?On Lee v. United States (1952) 343 U.S. 747, 751-753.)  In this case, the agents had defendant’s (and Alvarado’s) express consent to enter the motel room for the specific purpose of engaging in the illicit drug and firearms transactions.  The recordings of those transactions provided the most accurate, reliable source of information as to what occurred and what was said.  There is no Fourth Amendment search implicated by these circumstances.  Defendant’s motion to suppress was correctly denied by the trial court.Fourth Amendment?has undoubtedly occurred.” (pgs. 406, fn.3, and 5, respectively.) Absent a warrant, such a search is illegal. This “property-based approach” actually existed prior to Katz, since it was based on common law.  

Also, the court here notes that Katz was not intended to do away with this property-based theory, but merely supplement it. For these reasons, the court rejected Esqueda’s arguments that Jones/Jardines was something new and was intended to replace the Katz theory. To the contrary, both theories apply, each intending to supplement the other. Thus: “(T)he?Fourth Amendment?protects not only reasonable expectations of privacy, but also against (warrantless) physical intrusions by law enforcement onto property.”  

Either way, Esqueda argued that when the agents entered his motel room with functioning audio-video devices recording what occurred, they “exceeding the scope of their license to enter the motel room,” violating his Fourth Amendment rights under Jones/Jardines. The court disagreed. In making his argument, Esqueda relied primarily upon the facts in Florida v. Jardines. In Jardines, the Supreme Court held that when officers brought a drug-sniffing dog onto the front porch of a home for the purpose of investigating drug trafficking, it was an “unlicensed physical intrusion,” and therefore a?Fourth Amendment?search. A?Fourth Amendment?search occurred, says that Supreme Court, because the officers gathered information “by physically entering and occupying the [curtilage of the defendant’s home] (for the purpose of) engag(ing) in conduct not explicitly or implicitly permitted by the homeowner.”? 

Although there existed an implied license to approach the door and knock because “that is no more than any private citizen might do,” when the officers used a trained drug dog “in the hopes of discovering incriminating information,” that’s another issue. “There is no customary invitation to do that,” the ruling said. 

Esqueda’s argument in the instant case was that by coming into his motel room recording what occurred without his knowledge or permission, the agents did the same thing that the officers in Jardines did. Per the defendant: “(T)he officers engaged in conduct that he did not ‘explicitly or implicitly permit’ and thus exceeded the scope of their license to enter the motel room.” The court disagreed. Esqueda conceded that there was no Fourth Amendment search merely because the agents concealed their true identities for the purpose of obtaining consent to enter the motel room in the investigation of illicit conduct. The U.S. Supreme Court has long since upheld such surreptitious residential entries. (Lewis v. United States (1966) 385 U.S. 206, 211.) “‘(N)o interest legitimately protected by the?Fourth Amendment?is involved’ where an informant was physically present in the space ‘by invitation, and every conversation which he heard was either directed to him or knowingly carried on in his presence.’” (Hoffa v. United States (1966) 385 U.S. 293, 302.)  

Once inside, the agents, using recording devices they brought in as opposed to having planted them during a previous illegal entry, recorded only what they could see and hear. The U.S. Supreme Court has held that a defendant has no?Fourth Amendment?right to object to such reliable forms of evidence, like recordings, created by an undercover officer who is lawfully present in a space with express consent.?(See Lopez v. United States (1963) 373 U.S. 427, at 438-439; and?On Lee v. United States (1952) 343 U.S. 747, 751-753.)  

In this case, the agents had Esqueda’s (and Alvarado’s) express consent to enter the motel room for the specific purpose of engaging in the drug and firearms transactions. The recordings of those transactions provided the most accurate, reliable source of information as to what occurred and what was said. There is no Fourth Amendment search implicated by these circumstances. Esqueda’s motion to suppress was correctly denied by the trial court. 

We’ve been aware of Katz and Jardines for a long time. But this is the first case I’ve seen that explains the history behind these decisions and the relationship between these two legal theories, and how they work together under the Fourth Amendment.  

The law on warrantless undercover, surreptitious residential entries and recordings is important to know and understand. The court placed particular emphasis on the difference between what the officers did here and surreptitious uninvited entries, such as when officers secretly place recording devices inside a residence, a practice that requires a search warrant.  

The court also noted that doing the exact opposite of what was done here—such as identifying yourself as a cop but while misrepresenting the purpose of gaining entry into a suspect’s  residence by claiming to need assistance in some fictitious investigation—is a Fourth Amendment violation. (See fn. 4, and Whalen v. McMullen (9th Cir. 2018) 907 F.3rd 1139.)  

This may sound like splitting hairs, or even backwards, but these are the rules.  

The use of deadly force and qualified immunity from civil liability 

• Civil liability and qualified immunity 
• The use of deadly force absent prior case authority putting officers on notice 
• Fourteenth Amendment substantive due process and familial relationships 

The lack of prior case authority determining that the use of deadly force in a potentially dangerous situation is unconstitutional will generally provide officers with qualified immunity from civil liability.  

Where the issue is a child’s Fourteenth Amendment substantive due process deprivation of his or her interest in the companionship of a parent, only official conduct that “shocks the conscience” is sufficient to provide a remedy. Also, it must be shown that actual deliberation before the force was used was practical under the circumstances. 

Two Lyon County, Nevada, law enforcement officers responded to a 911 call related to a domestic violence incident at a private residence. The initial call did not request any emergency medical care nor report the involvement of any weapons. Upon arrival, the officers knocked on the front door and announced their presence. Two minor children—both described as “distressed”—came out of the house and spoke with the officers in the front yard. They told the officers that their parents were fighting and that their mother needed an ambulance. A medic was called to respond to the scene. While awaiting the arrival of an ambulance, the children told the officers that there were no weapons in the house other than a BB gun, but that their father was “throwing (their mother) around.”  

Leaving the children in the front yard, the officers again approached the front door, announced their presence, and, with one of the officers drawing his weapon, made entry into the house. Robert Anderson—from down an adjoining hallway and out of view—shouted; “F*** you punks.” Following the direction of Anderson’s voice, the officers moved toward the hallway just off the kitchen. Anderson—5 foot, 8 inches tall and 185 pounds (smaller than either of the two officers)—was observed standing at the far end of the hallway. It was noted at this time that he was unarmed and shirtless, with nothing in either his waistband or his hands. The second officer drew his weapon about this time.  

With both officers still in the kitchen at that opposite end of the hallway, Anderson was ordered to get on the ground. Ignoring the officers’ commands, he suddenly ran toward them. Both officers fired their weapons (three and two shots), hitting him in the torso with all five shots. Per later testimony (as recorded on the officers’ bodycams and as reported in the dissenting opinion), one officer fired the first shot from three to five feet as Anderson reached their end of the hallway. He fired the second shot at near point-blank range as Anderson passed in front of him. There was some indication that Anderson made a grab at the first officer’s gun as he passed. The third shot was fired at Anderson’s back as Anderson fell forward into the kitchen.  

The other officer fired a single shot at Anderson after the first officer had fired two shots and after Anderson had entered the kitchen. It was unexplained when the second officer fired his second shot. Anderson died at the scene. Anderson’s wife and children later sued the officers and Lyon County in federal court, alleging (1) a violation of the Fourth Amendment for using excessive force, and (2) the Fourteenth Amendment (substantive due process) for interfering with a familial relationship with his wife and children.  

The federal district (trial) court granted the civil defendants’ (the officers’) motion for summary judgment, ruling that the officers and the county were entitled to qualified immunity. The plaintiffs appealed. 

The Ninth Circuit Court of Appeal, in a 2-to-1 decision, affirmed, ruling that the officers were indeed entitled to qualified immunity from civil liability. Also, a unanimous court ruled that the officers, as a matter of law, did not violate the plaintiffs’ Fourteenth Amendment right to a familial relationship. 

The Fourth Amendment and Qualified Immunity 

The court first discussed the requirements of a “qualified immunity” finding. “Qualified immunity protects government officials ‘from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.’” (Harlow v. Fitzgerald (1982) 457 U.S. 800, 818.)  

The reasoning behind this rule is because the courts have found it unfair to hold law enforcement officers to a set of rules for which they had no forewarning. In considering this issue, the court noted that “(a) right is clearly established when it is ‘sufficiently clear that every reasonable official would have understood that what he is doing violates that right.’”  

In analyzing a qualified immunity case, a court must consider in the conjunctive a two-step analysis: Government officials are entitled to qualified immunity from civil liability “unless (1) they violated a federal statutory or constitutional right, and (2) the unlawfulness of their conduct was ‘clearly established at the time.’”?(Italics added; District of Columbia v. Wesby (2018) 583 U.S. 48, 62-63.) However, in considering this issue, the courts commonly just skip to the second factor, i.e., whether the unlawfulness of the officers’ conduct was “clearly established at the time.”  

In this case, the court exercised its discretion to go straight to the second factor. In so doing, the majority determined that “no clearly established (prior case) law shows that the officers’ conduct was unconstitutional.” The court first noted the unique circumstances of this case. Even though unarmed, Anderson used aggressive language with the officers, ignored an order from the officers to go to the floor, and then, in a small, confined space, rushed toward the officers. Additionally, the officers were responding to an active domestic violence situation, lacked the benefit of having time to fully assess the circumstances, and had to make split-second decisions as they were being charged. The court compared these circumstances to the facts of prior “use of deadly force” cases, differentiating each of them on the facts. The majority of the Ninth Circuit panel concluded that there were no prior case decisions that could be used to put these officers on notice that the force they used in shooting Anderson might violate the Fourth Amendment. As such, two of the three justices held that the officers were entitled to qualified immunity. (But see “Note,” below.)  

Fourteenth Amendment Substantive Due Process and a Familial Relationship 

As for the allegation that the officers violated the Fourteenth Amendment substantive due process clause by depriving Anderson’s children of a liberty interest in the companionship of their father (the court doesn’t mention the wife’s interest), the court noted that the plaintiffs had proof problems. Specifically: “Only official conduct that ‘shocks the conscience’ is cognizable as a due process violation.” (Italics added; Sinclair v. City of Seattle680; quoting Porter v. Osborn (9th Cir. 2008) 546 F.3rd 1131, 1137.)  Liability on these grounds requires proof that “actual deliberation (was) practical” under the circumstances.  (Moreland v. Las Vegas Metro. Police Dep’t (9th Cir. 1998) 159 F.3rd 365, 372; quoting?County of Sacramento v. Lewis (1998) 523 U.S. 833, 851.)  “[W]here a law enforcement officer makes a snap judgment because of an escalating situation, his conduct may only be found to shock the conscience if he acts with a purpose to harm unrelated to legitimate law enforcement objectives.”  The Court held here that the circumstances did not allow for any “actual deliberation” on the part of the officers, nor did the officers act “with a purpose to harm unrelated to legitimate law enforcement objectives.”  The district court’s ruling on this issue was therefore unanimously upheld by the Court.; quoting Porter v. Osborn (9th Cir. 2008) 546 F.3rd 1131, 1137.) Liability on these grounds requires proof that “actual deliberation (was) practical” under the circumstances. (Moreland v. Las Vegas Metro. Police Dept (9th Cir. 1998) 159 F.3rd 365, 372; quoting?County of Sacramento v. Lewis (1998) 523 U.S. 833, 851.) “[W]here a law enforcement officer makes a snap judgment because of an escalating situation, his conduct may only be found to shock the conscience if he acts with a purpose to harm unrelated to legitimate law enforcement objectives.”  

The court here held that the circumstances did not allow for any “actual deliberation” on the part of the officers, nor did the officers act “with a purpose to harm unrelated to legitimate law enforcement objectives.” The district court’s ruling on this issue was therefore unanimously upheld. 

Note 

The majority decision in this case—in my never-to-be-so humble opinion—is simply wrong. The majority held that using deadly force under these circumstances was “reasonable,” – “reasonableness” being the constitutional requirement. (See Graham v. Connor (1989) 490 U.S. 386.)  

I find this hard to accept, and there’s a well-reasoned 26-page dissent, authored by Associate Justice Marsha S. Berzon, that agrees with me. I totally agree that the nature of the overall situation—a domestic violence call where emotions are running high—called for increased caution. Even so, shooting and killing Robert Anderson under the circumstances of this case was clearly unreasonable.  

There comes a point where despite the lack of any prior case decisions putting the officers on notice, plain old common sense needs to dictate how an officer should respond.  

For instance, had Anderson merely flipped the officers off, would they have been reasonably justified in shooting him despite the lack of any prior case authority saying that it would be unconstitutional to do so? Where do you draw the line between when any reasonable officer would, or would not, have understood that what he is doing violates a person’s right not to be the victim of excessive force? (And don’t tell me that I would have had to have been in these officers’ shoes. I’ve been there, and more than once.)  

It is agreed, as the court pointed out, that things were occurring at a rapid pace and in a confined space, involving an out-of-control domestic violence suspect who was known to have already injured his wife. Yet I don’t understand how these circumstances would lead two well-trained officers—presumably trained in physically subduing (in “hand-to-hand” combat, so to speak) a resisting, yet unarmed, outnumbered suspect, when both officers are equipped with Tasers, pepper spray and nightsticks, facing a lone, unarmed, domestic violence suspect who, as noted by the dissent was physically smaller than both officers—to believe that it was reasonable to use deadly force by shooting the man.  

Assuming, again, that the officers were properly trained, they should have been able to physically restrain him and take him into custody without having to kill him. Shooting and killing an outnumbered, unarmed man—despite his physical resistance—is, in my opinion, hard to justify in just about any circumstance. Also, note that this is a Nevada case. Had this incident occurred in California, the rules would have been different. In California, by statute (P.C. § 835a(a)(2), effective January 1, 2020 (AB 392)), “peace officers (may) use deadly force only when necessary, in defense of human life...and shall use other available resources and techniques if reasonably safe and feasible to an objectively reasonable officer.” (Italics added)  

This amendment to California’s penal code has the effect of adding an element of “necessity” to the already existing “reasonableness” requirement for using deadly force, presumably raising the bar a notch in evaluating deadly force situations. So, whether shooting and killing Anderson was “reasonable,” had it occurred in California, we’d be asking ourselves whether it was also “necessary.”  

Again, I don’t believe it was. There were just too many alternative methods of subduing and taking Anderson into custody that were available to the officers without putting themselves at any additional, measurable, risk. So, with that, I’m expecting your cards and letters in response. 

The majority decision in this case—in my never-to-be-so humble opinion—is simply wrong. The majority held that using deadly force under these circumstances was “reasonable,” – “reasonableness” being the constitutional requirement. (See Graham v. Connor (1989) 490 U.S. 386.)  

I find this hard to accept, and there’s a well-reasoned 26-page dissent, authored by Associate Justice Marsha S. Berzon, that agrees with me. I totally agree that the nature of the overall situation—a domestic violence call where emotions are running high—called for increased caution. Even so, shooting and killing Robert Anderson under the circumstances of this case was clearly unreasonable.  

There comes a point where despite the lack of any prior case decisions putting the officers on notice, plain old common sense needs to dictate how an officer should respond.  

For instance, had Anderson merely flipped the officers off, would they have been reasonably justified in shooting him despite the lack of any prior case authority saying that it would be unconstitutional to do so? Where do you draw the line between when any reasonable officer would, or would not, have understood that what he is doing violates a person’s right not to be the victim of excessive force? (And don’t tell me that I would have had to have been in these officers’ shoes. I’ve been there, and more than once.)  

It is agreed, as the court pointed out, that things were occurring at a rapid pace and in a confined space, involving an out-of-control domestic violence suspect who was known to have already injured his wife. Yet I don’t understand how these circumstances would lead two well-trained officers—presumably trained in physically subduing (in “hand-to-hand” combat, so to speak) a resisting, yet unarmed, outnumbered suspect, when both officers are equipped with Tasers, pepper spray and nightsticks, facing a lone, unarmed, domestic violence suspect who, as noted by the dissent was physically smaller than both officers—to believe that it was reasonable to use deadly force by shooting the man.  

Assuming, again, that the officers were properly trained, they should have been able to physically restrain him and take him into custody without having to kill him. Shooting and killing an outnumbered, unarmed man—despite his physical resistance—is, in my opinion, hard to justify in just about any circumstance. Also, note that this is a Nevada case. Had this incident occurred in California, the rules would have been different. In California, by statute (P.C. § 835a(a)(2), effective January 1, 2020 (AB 392)), “peace officers (may) use deadly force only when necessary, in defense of human life...and shall use other available resources and techniques if reasonably safe and feasible to an objectively reasonable officer.” (Italics added)  

This amendment to California’s penal code has the effect of adding an element of “necessity” to the already existing “reasonableness” requirement for using deadly force, presumably raising the bar a notch in evaluating deadly force situations. So, whether shooting and killing Anderson was “reasonable,” had it occurred in California, we’d be asking ourselves whether it was also “necessary.”  

Again, I don’t believe it was. There were just too many alternative methods of subduing and taking Anderson into custody that were available to the officers without putting themselves at any additional, measurable, risk. So, with that, I’m expecting your cards and letters in response.