LEGALUPDATES.COM

• A Government Agent’s Duty to Warn
• The “Special Relationship” Prerequisite to the Duty to Warn

Absent a “special relationship” between a government agent and a potential victim, the agent has no duty to warn the victim that she is in danger.  A special relationship may be formed where a prospective victim relies to her detriment upon the representations of the government agent, giving rise to a duty to warn the victim of a potential danger to which the victim is otherwise unaware and to which she did not knowingly and voluntarily expose herself.

Rachel Renee Russell (victim) had a grandson—Sidney DeAvila—and a son—Steven E. Russell (plaintiff in this civil suit).  (Steven Russell was apparently DeAvila’s uncle.)   Rachel Russell raised DeAvila as if he were her son.  The problem was, DeAvila had psychological problems beginning around the age of 12; being on antipsychotic medication by the age of 19.  He began engaging in criminal activity at some point therein, eventually—as an adult—leading to prison time and parole.  DeAvila continued to live with his grandmother, Rachel Russell, between 2007 and 2013.  During this time period, DeAvila was constantly in trouble, periodically and consistently getting arrested, incarcerated, and then released, as described in excruciating detail over some five pages of this reported case decision.  Aggravated by an addiction to alcohol, cocaine and methamphetamine, DeAvila typically engaged in dangerous assaultive type behavior.  State Parole Officers Roy Lacy, and then Aldolfo Romero, as employees of the State Department of Corrections and Rehabilitation (referred to here as “the Department”), monitored DeAvila during this time period.  The agents listed DeAvila as a “high-violent” parolee in their reports; a fact that was never relayed to his grandmother.  In 2011, DeAvila was arrested for molesting a child and, upon conviction, was sent to the Atascadero State Hospital.  While there, psychological reports were written reflecting the fact that DeAvila “had a severe mental illness,” which included “auditory hallucinations” and a “paranoid delusional thought process,” resulting in a diagnosis of a “schizoaffective disorder and alcohol dependence.”  It was further noted that DeAvila had a history of treatment noncompliance, even telling his shrinks at one point that he was not planning on taking his medication following his release. Finally, and of important significance here, it was concluded that DeAvila “represent[ed] a substantial danger of physical harm to others by reason of his severe mental disorder.”  Upon his release from Atascadero, he returned to live with Russell.  The information concerning his mental issues and dangerousness was also never relayed to Rachel Russell despite the fact that the parole agents visited her home on a regular basis (twice a month) for the purpose of checking on DeAvila and administering drug tests.  Despite DeAvila constantly getting into trouble, it was noted that Rachel Russell, for the most part, seemed comfortable with him living with her, even asking on several occasions that he be released to her.  DeAvila continued to commit new crimes while periodically cutting off his ankle bracelet he was required to wear, or letting the battery expire, making it hard to locate him, all the while testing positive for cocaine and/or methamphetamine.  Whenever he was taken into custody, he would just be released again, often disappearing afterwards and failing to report in.  Romero requested warrants each time DeAvila absconded, noting that his continued presence in the community, as a dangerous registered sex offender, posed a threat to public safety.  Finally, around the first of January, 2013, Rachel Russell reported that she “had to pull [out] a knife” and force DeAvila—high on cocaine and “acting out”—to get out of her house.  On February 13, 2013, DeAvila was arrested (presumably due to this latest incident) and taken to jail, only to be released again a week later.  Finally, on February 23, it all came to a head when DeAvila returned to Rachel Russell’s home where he “tragic(ally)” raped and killed her.  Steven Russell, as Rachel Russell’s son, sued the California Department of Corrections and Rehabilitation in state court under the theory that Agents Lacy and Romeo had a duty to warn Rachel Russell of DeAvila’s dangerousness, but never did so, making them civilly liable for her death.  In his lawsuit, Steven Russel specifically alleged that the Department had developed a “special relationship” with Rachael Russell, triggering a duty to warn her of DeAvila’s dangerous propensities, but failed to do so.  A jury agreed and found the Department 60% at fault for Russell’s death by failing to warn her of a foreseeable danger that was unknown to her.  (DeAvila has held to be 40% at fault.)  Plaintiff was awarded $2.7 million as a result.  The Department appealed.

The Third District Court of Appeal reversed.  On appeal, it was stipulated that the Department failed to specifically warn Rachel Russell that DeAvila might be a danger to her.  The Department, however, argued that they had no duty to warn Russell of DeAvila’s dangerous propensities.  The Appellate Court agreed.  (The Department also argued that they were statutorily immune from liability pursuant to Government Code sections 820.2 and 845.8; an issue the Court found it unnecessary to address given its reversal based upon the “duty to warn” issue.)  The rules for when the government is required to warn someone of a pending danger are well-settled.  Specifically, a government entity does not have such duty to warn absent there being what is commonly referred to as a “special relationship” between the government agency at issue and the victim.  First, it was noted that the trial court erred in assuming whether or not such a special relationship existed was a “factual issue,” and thus one for the jury to decide.  To the contrary, the case law is clear that this is a “legal” determination to be made by the trial court and not the jury. (E.g., see  Tarasoff v. Regents of University of California (1976) 17 Cal.3rd 425, 620.)  The Court therefore ignored the jury’s findings on this issue and made its own determination.  In so doing, the Court considered the following:  “As a general rule, one (including a government agency) owes no duty to control the conduct of another, nor to warn those endangered by such conduct.”  There are exceptions, however.  “Such a duty may arise if ‘(a) a special relation exists between the actor (the Department, in this case) and the third person (i.e., DeAvila) which imposes a duty upon the actor to control the third person's conduct (see Note, below), or (b) a special relation exists between the actor (the Department) and the other (i.e., Racheal Russell) which gives the other a right to protection.’” (Davidson v. City of Westminster (1982) 32 Cal.3rd 197, 203; see also Tarasoff v. Regents of University of California, supra, at p. 435.)  The Court had some difficulty defining what is meant by a “special relationship,” trying to explain the concept by example rather than giving us a one-size-fits-all definition.  For instance, special relationships have “an aspect of dependency in which one party relies to some degree on the other for protection.”  (Regents of University of California v. Superior Court (2018) 4 Cal.5th 607, 620–621.)  “The corollary of dependence in a special relationship is control. Whereas one party is dependent, the other has superior control over the means of protection. ‘[A] typical setting for the recognition of a special relationship is where “the plaintiff is particularly vulnerable and dependent upon the (civil) defendant who, correspondingly, has some control over the plaintiff's welfare.”’” (Id. at p. 621.)  The Court further noted that “the factors to a finding of a special relationship include ‘detrimental reliance by the plaintiff on the officer’s conduct, statements made by them (the officers) which induced a false sense of security and thereby worsened her position.’” (Citing Williams v. State of California (1983) 34 Cal.3rd 18, 28.)  On  the other side of this coin: “Recovery has been denied, however, for injuries caused by the failure of police personnel to respond to requests for assistance, the failure to investigate properly, or the failure to investigate at all, where the police had not induced reliance on a promise, express or implied, that they would provide protection.” (Id. at p. 25.)  It helps to cite some examples:  A special relationship and a corresponding duty to warn has arisen where, for instance, a deputy sheriff promised to warn a victim if a prisoner, who had threatened the victim’s life, is released from custody, but then fails to do so, and then the released prisoner harms the victim who had reasonably relied upon the deputy sheriff’s promise.  Under these facts, it was held that there was a special relationship created between the two, rendering the deputy sheriff civilly liable for the resulting harm. (Morgan v. County of Yuba (1964) 230 Cal.App.3rd 938.)  In a different context, it was held that the State of California was civilly liable for creating a dangerous circumstance when an agent of the state requested that the plaintiff provide a foster home for a 16-year-old boy without warning the plaintiff of the boy’s homicidal tendencies and violent background, and where the boy then attacked and injured the plaintiff.  The California Supreme Court subsequently ruled in this case that “the state’s (special) relationship to [the] plaintiff was such that its duty extended to warning of latent, dangerous qualities suggested by the parolee’s history or character.”  The Court added that a duty is imposed “upon those who create a foreseeable peril, not readily discoverable by endangered persons, to warn them of such potential peril.”  (Johnson v. State of California (1968) 69 Cal.2nd 782.)  (Other examples are provided at pp. 932 to 934 of the case decision.)  In this particular case involving DeAvila and Russell, however, the Court failed to find—contrary to the plaintiff’s arguments—that any “special relationship” between the Department (i.e., the parole agents) and Russell was formed.  In so ruling, the Court held that what was lacking was evidence that either of the agents made an express or implied promise of protection upon which Russell relied to her detriment, or that they created a foreseeable peril that was not readily discoverable by Russell.  It was first conceded that both of DeAvila’s parole agents were fully aware that he was dangerous—a condition that was aggravated by his known alcohol and drug abuse—and that he had a history of assaulting people.  It was also known that he was mentally unstable.  But it was Russell herself, and not the agents, who encouraged DeAvila to reside in her home.  At no time over the years did the agents expressly or impliedly promise that they were in a position to protect her from DeAvila’s violent propensities, nor did they create the situation that eventually led to Russell’s death.  The fact that one or both of these parole agents communicated with Russell on a regular basis, consistently visiting her home to check up on DeAvila, did not alter this conclusion.  To the contrary, it was Russell herself—without any encouragement from either agent—who insisted that DeAvila be allowed to continue to live with her, often picking him up upon his release from custody and consistently expressing the belief that she was perfectly safe with him in the house.  The Court therefore concluded (after reviewing all the surrounding circumstances of the agents’ and DeAvila’s relationship to Russell) that no special relationship had been formed.  The Department, therefore, could not be held civilly liable for Russell’s death.

This case is important to law enforcement officers in that it stands for the proposition that you don’t incur any potential civil liability by failing to warn future victims about prospective dangers absent having done something to create a “special relationship” with that victim.  You do that, for instance, by making representations to the victim that you will protect him or her in some way, and then fail to follow through with that promise to the victim’s detriment.  So don’t go making promises you don’t intend—or you’re not in a position—to keep.  However, the case law listed above goes further than this.  There is a second way to prove a special relationship that although identified, is not discussed by the Court.  In addition to the above, it is also a rule that there may be civil liability if it is proved that there exists a special relationship between the involved government agency (or its agents) and the person who does the harm.  As noted above, liability may also be imposed “if the (civil) defendant bears some special relationship to the dangerous person. . . .” (Zelig v. County of Los Angeles (2003) 27 Cal.4th 1112, 1129.)  This would include “impos(ing) a duty upon the actor (the Department) to control the third person’s (DeAvila’s) conduct”  (See Davidson v. City of Westminster, supra; and Tarasoff v. Regents of University of California, supra.) In other words, in this case, there may have been a special relationship between the Corrections and Rehabilitation Department and DeAvila.  Other than citing the rule, the Court here fails to delve into the issue of whether the State Department of Corrections and Rehabilitation had a duty to control DeAvila’s conduct, creating a “special relationship” in that regard.  The Court either missed this issue altogether or just assumed it didn’t apply.  Either way, it was not discussed.  But I don’t find it irrational to argue that a parole officer has a duty to control the actions of his or her assigned parolee.  Here, DeAvila was supposedly under the control of Parole Agents Roy Lacy and Aldolfo Romero.  And it appears from the facts as listed in this decision that DeAvila was consistently being arrested on parole violations (in addition to new crimes, often involving violence), incarcerated, and then released again back out onto the streets where he would inevitably repeat his bad, and often violent, behavior.  Note that in Tarasoff v. Regents of University of California, a therapist was held to have a special relationship to a potentially violent patient, triggering a duty to warn a prospective victim who the patient had threatened to harm.  In this new case, DeAvila never specifically threatened Russell, but was known to have engaged in assaultive conduct which, arguably, should have put the parole agents on notice that he might do something similar to Russell.  If there was a special relationship between the parole agents and DeAvila, they perhaps had a duty to warn Rachel Russel.  But as mentioned, this issue was not discussed.  It might be an issue, however, worth taking up to the California Supreme Court.

• Warrantless DUI Blood Draws of an Unconscious Hospitalized Suspect
• Exigent Circumstances Justifying a Warrantless Blood Draw

The Fourth Amendment “almost always” permits a warrantless blood draw from an unconscious DUI suspect who is hospitalized. An unconscious DUI suspect who is hospitalized and about to go into surgery is a sufficient exigency allowing for a warrantless blood draw.

On October 27, 2017, Defendant Alberic Roland Nault had a dilemma.  His pickup truck had been impounded a couple of months earlier when last busted for DUI (his 4th since 2000), and he wanted it back.  The problem was that the tow yard where defendant’s pickup was being held wouldn’t let him have the truck as long as his driver’s license was still suspended.  So he paid a stranger $100 to show the tow yard employees a valid license to get the truck out of hock.  Somehow this ruse worked, and defendant drove away in his vehicle.  Celebrating his cleverness, defendant got wasted once again.  And despite having previously been subjected by various sentencing courts to a “morgue program designed to snap him into focus,” as well as two other alcohol awareness programs, defendant decided to go for a drive.  At 7:00 p.m. that evening, defendant found himself on a dark two-lane highway, stuck behind an “18-wheeler” truck.  The 18-wheeler, being driven by Laurentino Doval Carlos, was doing only about 50 mph in a 55 mph zone, holding defendant back.  So defendant tried to pass him, revving his pickup to about 70 mph as he pulled around the truck. Despite Doval slowing his truck so that defendant could make the pass, defendant hit head-on an approaching Honda Civic.  Doval stopped and attempted to assist the drivers of both vehicles which, by then, were on fire.  He found the female driver of the Honda to be deceased; “crush(ed) . . . to death” by the force of the impact.  Doval was able to rescue defendant, however, despite defendant being seriously injured.  Doval later testified to smelling a strong odor of alcohol on defendant’s breath.  California Highway Patrol Officer Carlos Burgos-Lopez arrived at the scene at 7:28 p.m., finding a semi-conscious defendant being treated in the back of an ambulance.  Noting that defendant’s pants were soaked with alcohol, the officer asked him what he had been drinking.  Defendant simply responded in a “thick” voice; “Beer.” Defendant’s injuries prevented Officer Burgos-Lopez from obtaining a complete statement as he was put into a helicopter for emergency evacuation.  The Officer did note at the scene, however, that while the skid marks from the Honda were evident, there were none for defendant’s pickup truck.  CHP Officer Riley Beckinger met an unconscious defendant at the hospital where he also noted the strong odor of alcohol.  Told by the hospital staff that they were taking defendant into surgery shortly, Officer Beckinger had the nurse draw two vials of blood from defendant, promising to obtain a search warrant after the fact (which was in fact later done).  The blood was drawn at 9:11 and 9:12 p.m., two hours and eleven minutes after the crash.  Upon analysis of that blood, it was determined that defendant’s blood-alcohol level was 0.14%; almost twice the legal limit.  Charged in state court with second degree murder (per P.C. § 187(a)), gross vehicular manslaughter while intoxicated (P.C. § 191.5(a)), and driving a vehicle with a suspended license (V.C. § 14601.5(a) & (d)(2)), with four prior DUI convictions also alleged, defendant’s pre-trial motion to suppress the blood-alcohol results was denied.  Convicted by a jury of all the above, and after admitting the prior convictions, defendant was sentenced to state prison for 15-years-to-life (plus a year in county jail).  He appealed.

The Second District Court of Appeal (Div. 8) affirmed (remanding the case for the sole purpose of correcting some sentencing errors that did not affect the 15-years-to-life determination).  The issue on appeal, as it was in the trial court, was the lawfulness of extracting a blood sample without the benefit of a search warrant.  (The fact that a search warrant was obtained after the fact was irrelevant, and not discussed.). The basic rules are well established:  A blood draw is a “search,” for purposes of the Fourth Amendment.  (Birchfield v. North Dakota (2016) 136 S.Ct 2160, 2173.)  Like with any other search, a warrantless blood draw is presumed unreasonable unless justified by a recognized exception. (Missouri v. McNeely (2013) 569 U.S. 141, 148.)  “Exigent circumstances” is a recognized exception to the search warrant requirement.  (Id., at pp. 148-149.)  An exigency exists whenever blood-alcohol evidence is dissipating, as it always is, and a pressing health, safety, or law enforcement need takes priority over a warrant application. (Mitchell v. Wisconsin (2019) 139 S.Ct. 2525, 2537; and Schmerber v. California (1966) 384 U.S. 757, 770–771.) However, the fact the human body continuously metabolizes alcohol is not enough by itself to excuse the failure to obtain a search warrant. (Mitchell, supra, at 2537.) There must also be a pressing law enforcement need.  Per Mitchell, The Fourth Amendment “almost always” permits a warrantless blood test when police officers do not have a reasonable opportunity for a breath test before an unconscious suspect is hospitalized.  (Mitchell, supra, at 2539.)  Unique to this particular case is the fact that by the time law enforcement had the opportunity to obtain a blood sample (a breath sample obviously being impractical at that time), defendant was unconscious and about to head into surgery.  Over two hours had already passed since the fatal collision, meaning that the relevance of defendant’s blood-alcohol level was diminishing with each passing minute.  Waiting for a search warrant that could not be executed until defendant was out of surgery was not a viable option if a valid blood-alcohol result was to be obtained.  For this reason, it was held that under the circumstances of this case, the general rule applied; i.e., that a driver suspected of being under the influence of alcohol and who is unconscious, may be subjected to a warrantless blood draw without offending the Fourth Amendment.  Noting that defendant created the exigency in this case by having “injured himself badly,” requiring hospitalization and immediate surgery, thus making a breath test impractical and no time left to obtain a search warrant for a blood draw, the Court held here that the general rule applied.  Therefore, defendant’s motion to suppress the results of his blood test was properly denied by the trial court.

Mitchell v. Wisconsin (or at least a plurality opinion in Mitchell) held that a warrantless blood draw may be made “almost always” whenever a breath test wasn’t practical because “the driver’s unconsciousness or stupor requires him to be taken to the hospital or similar facility.” (139 S.Ct. at p. 2539.)  The fact that defendant here was also about to disappear into the operating room was really just icing on the cake, insuring that the general rule applied.  But note that the Supreme Court in Mitchell did not say that the hospitalization of an unconscious DUI suspect always excuses the lack of a warrant.  Exceptions may apply, depending upon the circumstances.  You have to know that just about every lower court in the nation is greedily salivating for the opportunity to be the first to find an exception to this rule.  You don’t want that case to be yours, with your name plastered all over it for everyone to see how you screwed up.  The defendant here, being hospitalized, unconscious, and heading into surgery, saved this case.  But you won’t always have that combination of circumstances.  So you have to continue to be ready in every case to explain why, in the case at hand, there was no opportunity to get a search warrant without compromising the validity of your suspect’s blood-alcohol reading.  Note also the fact that telephonic search warrants are generally obtainable—often in less than an hour—makes it just that much more likely that your next case might well be that exception.  Mitchell mentioned this shortcut to obtaining warrants, but believed that even with such technology, “the time required has shrunk, but it has not disappeared.”  (Id., at p. 2539.)  The dissent in Mitchell, on the other hand, noted that the availability of “telephonic or radio communication, electronic communication such as e-mail, and video conferencing” (Id., at p. 2548.) might (in the right circumstances) provide an exception to Mitchell’s “almost always” general rule. It is suggested, therefore, that you be ready to rebut a defense argument that the availability of the telephonic search warrant procedure was not enough take your case out of the “almost always” general rule.

• Traffic Stops and an Objectively Reasonable Mistake of Law
• Veh. Code § 22107 and the “Other Affected Vehicle” Requirement
• Veh. Code § 22108 and the Failure to Signal a Turning Movement

When an police officer’s justification for an illegal traffic stop is based on a reasonably objective mistake of law or fact, the resulting stop may be upheld despite the Fourth Amendment violation.  In order for V.C. § 22108’s signaling requirement to be effective, it must also be shown that there was another vehicle that might have been affected, as required by V.C. § 22107.  It is not reasonable for a law enforcement officer to believe that V.C. § 22107’s “other affected vehicle” requirement is met merely because one vehicle is behind a turning vehicle, at least in the absence of a possibility that the rear vehicle could move into the path of the turning vehicle. 

Rookie Vallejo Police Officer Laura Bellamy (with a whole one month on the police force), riding with her field training officer (“FTO”), observed defendant Andrew Holiman in his vehicle stopped at a stop sign.  Officer Bellamy was stopped at the same four-way stop sign intersection, on a cross street, and to defendant’s left.  Defendant made a left hand turn in front of Officer Bellamy, looking at her as he passed her patrol car, and then “quickly looked away as if to want to hide his face.”  Officer Bellamy found this “furtive glance” to be “curious.”  So she made a U-turn and followed defendant’s vehicle for the next couple of blocks until they came to a three-way stop sign intersection.  With Officer Bellamy directly behind him, defendant made a full stop at the stop sign with his vehicle in a position where the roadside curb was immediately to his right, leaving no room for another car to pass him on his right-hand side.  He then turned on his right-hand blinker “just prior” to making a right turn.  Officer Bellamy followed defendant for another mile (about “four more minutes”) before executing a traffic stop.  Her stated reason for the stop was because defendant failed to signal his right-hand turn for a full 100 feet before making the turn, pursuant to Veh. Code § 22108.  Upon contacting defendant, it was quickly determined that he was on parole (for armed robbery) and therefore subject to search and seizure conditions.  A Fourth waiver search of his car resulted in the recovery of a loaded semiautomatic handgun, methamphetamine, and marijuana.  Charged in state court with being a felon in possession of a firearm and ammunition, plus other charges, and with a prior strike conviction, defendant’s motion to suppress everything recovered as a result of the search of his car was denied.  Defendant was sentenced to seven years and four months in prison after pleading no contest in a negotiated plea.  He subsequently appealed.

The First District Court of Appeal (Div. 2) reversed.  The issue on appeal was the legality of the traffic stop.  All parties agreed that if the traffic stop was illegal, then the search of defendant’s car, as the product of that stop, was also illegal.  With a traffic stop being classified as the equivalent of a “detention,” it is the People’s burden to show that a reasonable officer, under the same or similar circumstances, would have had a “reasonable suspicion” to believe that the defendant committed a traffic offense.  Should the People fail to meet this burden, then the traffic stop will generally be held to be illegal.  Any fruits of the stop will be subject to suppression as a violation of the Fourth Amendment.  However, there is an exception to this rule. (Isn’t there always?)  If the detaining officer’s justification for a traffic stop is based on a reasonable mistake, “either factual or legal” (often referred to as “a mistake of fact or a mistake of law”), then the resulting search or seizure will be upheld despite the Fourth Amendment violation, at least if it can be said that the officer’s mistake was “objectively reasonable.”  (Heien v. North Carolina (2014) 574 U.S. 54, 57, 60–61, 67.) “To be reasonable is not to be perfect, and so the Fourth Amendment allows for some mistakes on the part of government officials, giving them ‘fair leeway for enforcing the law in the community’s protection.’” (Id. at pp. 60–61.) However, this exception can be stretched only so far.  As noted by the Supreme Court in Heien: “(A)n officer can gain no Fourth Amendment advantage through a sloppy study of the laws he is duty-bound to enforce.” (Id. at p. 67.)  Officer Bellamy’s stated justification for stopping defendant in this case was her belief that Veh. Code § 22108 was violated when he failed to signal his intention to turn some 100 feet in advance.  However, it is a rule of law that section 22107 must also be considered along with Vehicle Code § 22108. The two sections must be read in conjunction with each other. As noted by the Court, section 22107 provides: “No person shall turn a vehicle from a direct course or move right or left upon a roadway until such movement can be made with reasonable safety and then only after the giving of an appropriate signal in the manner provided in this chapter in the event any other vehicle may be affected by the movement.” Section 22108 provides: “Any signal of intention to turn right or left shall be given continuously during the last 100 feet traveled by the vehicle before turning.”  (Italics in both added by the Court.)   These two sections together have been interpreted to mean that a driver when turning his vehicle must signal his or her intention to turn for the last 100 feet before turning (as required by section 22018), but only if there is another vehicle that may be affected in some way by the proposed turn (as required by section 22107).  (See People v. Carmona (2011) 195 Cal.App.4th 1385, 1394.)  Defendant conceded that if both sections 22107 and 22108 apply (i.e., he failed to signal for 100 feet before making his turn and another vehicle was thus affected), then a reasonable officer could have believed that he should have begun his signaling at some point at least 100 feet before he reached the stop sign.  However, defendant argued that section 22108 does not apply because there were no vehicles that could have been affected by his right turn at that intersection.  The Court agreed.  The People argued in response that Officer Bellamy’s patrol vehicle, being right behind defendant at the stop sign, could have been affected.  The Court rejected this argument, noting that there was no physical way for the patrol car to have attempted to proceed around defendant’s car on the right, defendant being so close to the right-hand curb that Officer Bellamy’s patrol car could not have fit into the remaining space. If it had been a motorcycle behind defendant, being a vehicle narrow enough to move around defendant’s right-hand side at the stop sign (see People v. Suff (2014) 58 Cal.4th 1013, 1055-1056.), then the answer would have been different.  But it wasn’t.  The only vehicle behind defendant was Officer Bellamy’s full-sized patrol car.  Simply being behind defendant’s car was not sufficieint to show that it could have been affected by defendant’s failure to signal earlier. The Court therefore rejected the People’s argument that it was objectively reasonable for an officer in Officer Bellamy’s situation to believe that her car could have been affected under these circumstances.  This being so, section 22107 did not apply.  And because section 22107 didn’t apply, the signaling requirement of section 22108 didn’t apply.  Defendant’s right turn, with or without a signal, was therefore lawful.  For these reasons, the Court held that defendant’s vehicle was unlawfully stopped.  The resulting evidence recovered from his vehicle must therefore be suppressed.

Having held that V.C. § 22107 doesn’t apply merely because one vehicle is behind another, at least under the circumstances of this case (i.e., no vehicle being interfered with), the Court never reaches the issue of whether not signaling until a car stops at an intersection and then turns violates V.C. § 22108’s “100 feet before turning” requirement.  Resolution of that issue must await another day.  When you look at section 22108, however, and its requirement that; “Any signal of intention to turn right or left shall be given continuously during the last 100 feet traveled by the vehicle before turning,” it seems pretty unambiguous.  That having been said, it’s also somewhat ridiculous if it’s to be interpreted to mean that you can’t make a right or left hand turn at all unless you’re quick enough to remember to flip on your turn signal at least 100 feet ahead of time.  How many times have we all violated that rule, if that’s how section 22108 is to be interpreted?  And lastly, congratulations to Officer Bellamy for getting her name mentioned in a published case so early in her career, her FTO (who is never identified) apparently being more than happy to give her all the credit.  Hopefully, however, the next time this happens for her, it will be in a win.

• The Use of Excessive Force and the Fourth Amendment
• Unlawful Public Protests and Law Enforcement’s Right to Use Reasonable Force

While individuals have the right to publicly protest, law enforcement has a right to arrest the protestors when they seek to prevent a duly installed government entity from performing its lawful functions.  The use of reasonable force in arresting protestors engaging in unlawful protests is constitutional

In July, 2018, Tasha Williamson and others participated in what was referred to as a “die-in” at a city council meeting in National City.  The purpose of this demonstration was to protest the death of one Earl McNeil; a black man who died while in police custody.  (See Note, below.)  The protestors in general disrupted the meeting by chanting from the audience.  Williamson and five others, however, took it a step further by moving up to the public speaker podium in front of the city council members where they laid down on the floor around the podium, showing their red-painted “bloody hands” while chanting; “I am Earl McNeil,” and, “You have blood on your hands.”  The protestors ignored the mayor’s call for order, so the council meeting was adjourned.  Meanwhile, National City police officers warned Williamson and the other protestors around the podium that they would be arrested if they didn’t back away.  (Getting arrested, of course, is exactly what they wanted.)  The six protestors around the podium all ignored the officers’ repeated requests to leave, acting as “dead weight” instead, refusing to cooperate with being physically removed.  The officers, therefore, pulled or carried them out, one by one.  National City Officers Lucky Nguyen and John McGough drew Williamson as the demonstrator they were responsible for removing.  Handcuffing her with her wrists behind her back, they brought her up to a seated position. Attempting to lift her to a standing position, they lost their grip and she rolled back to the ground, onto her stomach.  So the officers tried again, one officer on each arm, lifting her back to a standing position.  But because Williamson wouldn’t support her own weight, the officers had to pull her backwards by her arms and wrists while she remained in what resembled a seated position.  In the twelve seconds it took to drag her through the room to the exit, Williamson’s chanting reverted to a continuous scream.  At the exit door, Officer McGough released Williamson’s upper right arm, leaving Officer Nguyen to drag her by her left wrist and forearm through the doorway.  In the hallway outside the meeting room, Williamson complained that they had hurt her shoulder.  So the officers “double-cuffed” her to lessen the tension on her arms and make her more comfortable.  Given her complaints of pain, an ambulance was called, but she declined a trip to the hospital.  So she was taken to jail instead.  After her release the next morning, Williamson drove herself to the hospital where it was determined that she had suffered a sprained wrist, mild swelling, and a torn rotator cuff (although there was some question whether her rotator cuff had been injured here, or during a prior arrest, which was the subject of a different lawsuit). Williamson sued the officers in federal court under 42 U.S.C. § 1983 and California’s Tom Bane Civil Rights Act (Cal. Civ. Code § 52.1), alleging that the officers had used excessive force against her in violation of the Fourth Amendment.  When the district court denied the officers’ motion for summary judgment (i.e., to dismiss the lawsuit), the officers (and the City of National City) appealed.

The Ninth Circuit Court of Appeal reversed.  On appeal (as in the federal district court), Williamson argued that “pulling the full weight of her body by her hyperextended arms,” and thus causing her injuries, constituted the use of excessive force; a violation of the Fourth Amendment.  In evaluating Williamson’s claims, the basic rules are well-settled:  The Fourth Amendment protects against unreasonable seizures, which includes when law enforcement uses excessive force in making an arrest.  When the use of excessive force is alleged in a civil suit, a law enforcement officer can avoid liability by showing that he or she is entitled to “qualified immunity.” The qualified-immunity analysis involves two prongs; i.e., (1) whether the officer’s conduct violated a constitutional right, and, if so, (2) whether that right “was clearly established at the time of the events at issue.”  In this case, the Court concluded that the officers’ use of force was both justified and not excessive.  As such, they did not violate Williamson’s Fourth Amendment rights.  It was therefore not necessary to consider the second prong; i.e., whether the rights at issue were clearly established.  In concluding that Williamson was arrested (the lawfulness of the arrest itself not being contested) without the use of excessive force, the Court considered a whole bunch of interwoven rules, summarized as follows:  Whether or not an officer’s use of force was “objectively reasonable” (i.e., not excessive) is determined by examining the facts and circumstances confronting the officers at that time. These facts and circumstances include; “(1) the severity of the intrusion on the individual’s Fourth Amendment rights by evaluating the type and amount of force inflicted, (2) the government’s interest in the use of force, and (3) the balance between the gravity of the intrusion on the individual and the government’s need for that intrusion.”  The “government’s interest” requires an evaluation of the state’s interest at stake, including (1) how severe the crime at issue was, (2) whether the suspect posed an immediate threat to the safety of the officers or others, and (3) whether the suspect was actively resisting arrest or attempting to evade arrest by flight.” (Rice v. Morehouse (9th Cir. 2021) 989 F.3rd 1112, 1121.)  Other rules guiding the Court include the fact that a court is to “judge the reasonableness of a particular use of force ‘from the perspective of a reasonable officer on the scene, rather than with the 20/20 vision of hindsight.’”  “It is also well-established that police officers ‘are not required to use the least intrusive degree of force possible.’” (Graham v. Connor (1989) 490 U.S. 386, 395, 397; Lowry v. City of San Diego (9th Cir. 2017) 858 F.3rd 1248, 1256 & 1259.)  In evaluating this particular case, the Court also considered the “specific factual circumstances” of the case in classifying the force used, the nature and degree of the physical contact at issue, as well as the “risk of harm and the actual harm experienced.” (Forrester v. City of San Diego (9th Cir. 1994) 25 F.3rd 804, 807; and Nelson v. City of Davis (9th Cir. 2012) 685 F.3rd 867, 879.)  With these guiding principles in mind, the Court noted that Williamson’s crime was minor—she posed no threat to anyone—and that she was not actively resisting arrest.  That’s all good for her.  But on the other side of this same coin, the Court noted that the officers had a legitimate interest in removing and arresting her.  Of particular note was that fact that proper warnings were given (repeatedly) before they used any force at all. Recognizing that citizens have a right to express their disagreement and dissatisfaction with the government, they do not have the right to prevent a duly installed government entity from performing its lawful functions.  “To conclude otherwise would undermine the very idea of ordered liberty.”  The Court thus found the officers’ actions in the way they handled Williamson to be not only reasonable, but as the use of force goes, “minimal.”  In so finding, it was noted that the officers did not strike Williamson, throw her to the ground, or use any pain compliance techniques or weapons for the purpose of inflicting pain on her.  Rather, they merely held her by her arms and lifted her so they could pull her out of the meeting room.  The fact that they had to use any force at all was necessitated by Williamson herself, going limp and refusing to leave on her own accord or to cooperate with being removed. Williamson failed to identify any less intrusive manner the officers could have used to accomplish what they had the right to do.  Also, the Court found that Williamson’s injuries, though not trivial, were relatively minor when compared to other cases cited in this written decision.  As such, the Court found the officers’ use of force to be constitutional as a matter of law.  As for Williamson’s Bane Act allegation, this California legislation (see Cal. Civ. Code § 52.1) is the state’s equivalent of the federal 42 U.S.C. 1983 civil liability legislation.  But in order for the Bane Act to apply, it must be shown that an underlying constitutional violation occurred.  There having been found to be no such violation in his case, the officers’ summary judgment motion relative to the Bane Act must also be granted.

If you’re not familiar with Earl McNeil and the circumstances of his death, he was a black man who, on the morning of May 26, 2018, showed up outside the headquarters of the National City Police Department saying there was an outstanding warrant for his arrest and that he wanted to turn himself in.  He also mentioned that he wanted to “kill Jesus,” indicating that there might be something else going on here.  Upon attempting to arrest McNeil, he apparently changed his mind and started to resist.  In order to subdue him, the officers used a restraint device called “The Wrap,” which is a system that binds a person’s legs and wrists while allowing him to sit upright, minimizing the likelihood of injury to both the suspect and the officers involved.  When McNeil began to spit, however, the officers put two “spit hoods” over his head.  Apparently, a t-shirt was also placed over the spit hoods (we don’ know why).  McNeil stopped breathing as a result, and died some days later.  Methamphetamine was later determined to be in his system, perhaps explaining the “kill Jesus” comment and his sudden need to resist. The San Diego County DA found no criminal culpability on the part of the officers, but this did not prevent McNeil’s family from suing.  The family’s civil case was eventually resolved with a $300,000 negotiated settlement.  Why Williamson (and the other demonstrators) got involved is unknown. We can only speculate that she got caught up in the movement to question any death at the hands of the police, particularly when the victim is black; not an unjust cause and certainly her right.  But if there’s a lesson to be learned by this case, it’s that in a free society governed by the rule of law, a person’s right to protest has to be balanced with the government’s right to conduct the People’s business.  When protestors unlawfully challenge government’s right to conduct its business, arrests will be made.  Resisting those arrests, whether overtly or by simple passive resistance, injuries are likely to occur.  Williamson learned this (if she learned anything) the hard way.