LEGAL UPDATE FOR WASHINGTON LAW ENFORCEMENT

Law Enforcement Officers: Thank you!

September 2017

TABLE OF CONTENTS FOR SEPTEMBER 2017 LEGAL UPDATE

NINTH CIRCUIT, UNITED STATES COURT OF APPEALS………………………………2

CIVIL RIGHTS ACT CIVIL LIABILITY: OFFICER IS DENIED QUALIFIED IMMUNITY BY 2-1 VOTE WHERE OFFICER FATALLY SHOT 13-YEAR-OLD WHO WAS HOLDING A REALISTIC-LOOKING PLASTIC REPLICA OF AN AK-47, AND YOUTH’S ESTATE CAN POINT TO ALLEGATIONS/EVIDENCE THAT: (1) YOUTH’S GUN HAD ALLEGEDLY REMAINED POINTED DOWN AT THE GROUND, AND (2) THE OFFICER HAD ORDERED THE YOUTH TO “DROP THE GUN,” BUT THE OFFICER HAD NOT IDENTIFIED SELF AS LAW ENFORCEMENT OR WARNED THAT DEADLY FORCE WAS IMMINENT Estate of Lopez v. Gelhaus, 871 F.3d 998 (9th Cir., Sept. 22, 2017)……………………..2

CIVIL RIGHTS ACT: THREE-JUDGE PANEL IS UNANIMOUS IN HOLDING THAT SECOND AMENDMENT RIGHTS OF SEATTLE POLICE DEPARTMENT OFFICERS ARE NOT VIOLATED BY SEATTLE POLICY ON USE OF FIREARMS Mahoney [and over 100 other Seattle PD officers] v. Sessions and City of Seattle, ___ F.3d ___ , 2017 WL ___ (9th Cir., September 19, 2017)……………………………………5

CIVIL RIGHTS ACT CIVIL LIABILITY: OFFICER HELD ENTITLED TO QUALIFIED IMMUNITY (AND PANEL INDICATES HE LIKELY WAS JUSTIFIED UNDER THE FOURTH AMENDMENT) IN RELATION TO THE OFFICER’S SHOOTING OF A TRESPASSER WHO AGGRESSIVELY CAME AT OFFICER INSIDE A HOME, SCREAMING AND HOLDING A BROKEN HOCKEY STICK IN SWINGING POSITION Woodward v. City of Tucson, 870 F.3d 1154 (9th Cir., Sept. 15, 2017)…………………..5

CIVIL RIGHTS ACT CIVIL LIABILITY: IN A CASE WHERE OFFICERS MISTAKENLY ARRESTED THE FATHER INSTEAD OF THE SON WHO WAS NAMED IN AN ARREST WARRANT, COURT CONCLUDES OFFICERS VIOLATED FATHER’S FOURTH AMENDMENT RIGHTS ON SEVERAL POINTS, BUT THAT CASE LAW WAS NOT ESTABLISHED FOR QUALIFIED IMMUNITY PURPOSES; BUT COURT CONCLUDES THAT CASE CAN GO TO JURY ON FREE SPEECH THEORY THAT OFFICERS PROLONGED THE FATHER’S DETENTION BASED SOLELY ON HIS “ARGUMENTATIVE” DEMEANOR Sharp v. County of Orange, 871 F.3d 901 (9th Cir., September 19, 2017)……………….7

Legal Update - 1 September 2017 INITIATION-OF-CONTACT RULE UNDER MIRANDA: OFFICERS HELD IN HABEAS CASE INVOLVING 14-YEAR-OLD MURDER SUSPECT TO HAVE VIOLATED MIRANDA-BASED INITIATION-OF-CONTACT RULE OF EDWARDS V. ARIZONA IN THEIR CONVERSATION WITH THE CUSTODIAL SUSPECT SHORTLY AFTER HE CLEARLY INVOKED HIS RIGHT TO COUNSEL Rodriguez v. McDonald, 872 F.3d 908 (9th Cir., September 29, 2017)…………………12

BRADY VIOLATIONS REQUIRE GRANT OF HABEAS RELIEF TO PRISONER ON MURDER AND OTHER CONVICTIONS; DEFENDANT SHOULD HAVE BEEN TOLD OF (1) AN OFFICER’S SHOEPRINT OBSERVATION, (2) AN EXPECTATION THAT A WITNESS HAD OF RECEIVING A BENEFIT FROM THE STATE FOR HIS TESTIMONY, AND (3) THE VICTIM’S EXACT DESCRIPTION OF THE ASSAILANT’S HAIRSTYLE Browning v. Baker, ___ F.3d ___ , 2017 WL ___ (9th Cir., September 20, 2017)………18

WASHINGTON STATE SUPREME COURT……………………………………………….20

SEXTING CRIME: 17-YEAR-OLD WHO TEXTED A PICTURE OF HIS ERECT PENIS TO AN ADULT WOMAN TO HARASS HER COMMITTED “DEALING IN DEPICTIONS OF A MINOR ENGAGED IN SEXUALLY EXPLICIT ACTIVITY” UNDER RCW 9.68A.050(2)(a); COURT ALSO HOLDS THAT STATUTE (1) DOES NOT VIOLATE FREE SPEECH RIGHTS, AND (2) IS NOT VOID FOR VAGUENESS State v. Gray, ___Wn.2d ___ , 402 P.3d 243 (September 14, 2017)……………………20

WASHINGTON STATE COURT OF APPEALS…………………………………………...22

JUVENILE’S “PASSIVE” RESISTANCE TO HANDCUFFING PROCESS DURING INVESTIGATORY STOP HELD TO NOT BE OBSTRUCTING; THE THREE APPELLATE JUDGES AGREE ON RESULT BUT NOT ON REASONING; TWO OF THE THREE JUDGES TAKE THE VIEW THAT THERE IS NO DUTY TO COOPERATE IN AN INVESTIGATORY STOP; THE THIRD JUDGE TAKES THE VIEW THAT THERE IS A DUTY TO COOPERATE IN AN INVESTIGATORY STOP, BUT ONLY IF THE OFFICER HAS REASONABLE SUSPICION FOR THE STOP State v. D.E.D., ___ Wn. App. ___, 402 P.3d 851 (Div. III, September 19, 2017……..22

ANNOUNCEMENT: MATERIALS BY JOHN WASBERG HAVE BEEN UPDATED THROUGH JULY 1, 2017 AND ARE AVAILABLE ON THE CRIMINAL JUSTICE TRAINING COMMISSION’S INTERNET LED PAGE UNDER “SPECIAL TOPICS”…24

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NINTH CIRCUIT, UNITED STATES COURT OF APPEALS

CIVIL RIGHTS ACT CIVIL LIABILITY: OFFICER IS DENIED QUALIFIED IMMUNITY BY 2-1 VOTE WHERE OFFICER FATALLY SHOT 13-YEAR-OLD WHO WAS HOLDING A REALISTIC-LOOKING PLASTIC REPLICA OF AN AK-47, AND YOUTH’S ESTATE CAN POINT TO ALLEGATIONS/EVIDENCE THAT: (1) YOUTH’S GUN HAD ALLEGEDLY

Legal Update - 2 September 2017 REMAINED POINTED DOWN AT THE GROUND, AND (2) THE OFFICER HAD ORDERED THE YOUTH TO “DROP THE GUN,” BUT THE OFFICER HAD NOT IDENTIFIED SELF AS LAW ENFORCEMENT OR WARNED THAT DEADLY FORCE WAS IMMINENT

In Estate of Lopez v. Gelhaus, 871 F.3d 998 (9th Cir., September 22, 2017), a Ninth Circuit panel votes 2-1 to deny a law enforcement officer qualified immunity. A Ninth Circuit staff opinion summary that is not part of the panel’s opinion summarizes the majority and dissenting opinions as follows:

The panel affirmed the district court’s order denying [law enforcement’s] motion for summary judgment on the defense of qualified immunity in an action brought pursuant to 42 U.S.C. § 1983 alleging that Sonoma County Sheriff’s Deputy Erik Gelhaus deployed excessive force when he fatally shot thirteen-year-old Andy Lopez.

[Deputy] Gelhaus shot Andy after witnessing Andy walking down the street with an object that looked like an AK-47 rifle. Andy did not comply with Gelhaus’s directive to “drop the gun.” The object turned out to be a plastic gun designed to replicate an AK-47, with the bright orange tip removed.

The panel held that viewing the facts in the light most favorable to plaintiffs [Andy’s estate], as the panel was required to do at this stage of the proceedings, Gelhaus deployed deadly force while Andy was standing on the sidewalk holding a gun that was pointed down at the ground. Gelhaus also shot Andy without having warned Andy that such force would be used, and without observing any aggressive behavior. Pursuant to Graham v. Connor, 490 U.S. 386 (1989), a reasonable jury could find that Gelhaus’s use of deadly force was not objectively reasonable.

The panel further held that taking the facts as it was required to do on [law enforcemetn’s] interlocutory appeal, Andy did not pose an immediate threat to law enforcement officials and therefore the law was clearly established at the time of the shooting that [Deputy] Gelhaus’s conduct was unconstitutional. The panel held that ultimately, Gelhaus’s entitlement to qualified immunity depended on disputed facts that needed to be resolved by a jury, and the panel therefore remanded the case for trial.

Dissenting, Judge Wallace stated that at the time of the shooting, legal precedent did not clearly establish that the use of deadly force under the circumstances was objectively unreasonable.

The majority opinion is lengthy in both its description of the factual allegations and in its legal analysis. Interested readers should consult the majority and dissenting opinions in the case for a better understanding of the complexities of the case.

An officer is entitled to qualified immunity if the officer’s actions: (1) complied with the constitutional standard, or (2) the constitutional standard applicable to the circumstances was not “clearly established” by relevant case law at the time of the officer’s actions. Thus, qualified immunity is denied only if an officer’s actions violated a standard set under clearly established constitutional case law. Qualified immunity is denied only if officers’ actions either were plainly incompetent or were knowing violations of the then-existing constitutional case law. In other words, qualified immunity is granted unless existing appellate case law at the time of the officers’ actions placed the constitutional question clearly beyond debate in light of the factual contexts of the case law.

Legal Update - 3 September 2017

The Fourth Amendment permits law enforcement to use “objectively reasonable” force. Graham v. Connor, 490 U.S. 386 (1989). Factors for evaluating reasonableness include, but are not limited to: (1) the severity of the crime at issue; (1) most important, whether the suspect posed an immediate threat to the safety of the officers or others; (2) the severity of the crime at issue; and (3) whether the suspect actively resisted arrest or attempted to escape. Other relevant factors include the reasonable availability of less intrusive alternatives to the force employed (though there is not a strict requirement that only the least intrusive alternative may be used), whether proper identification as law enforcement was announced, and whether proper orders and proper warnings about the imminent use of deadly force were given.

When the government seeks qualified immunity by summary judgment in order to avoid going to trial, all factual allegations in the case are considered in the best light for the plaintiff who is suing law enforcement. Factual problems for law enforcement in this particular case include the circumstances that there were some internal inconsistencies in Deputy Gelhaus’s own statements, plus some inconsistencies between (1) Deputy Gelhaus’s description of relevant events and (2) Deputy Schemmel’s descriptions of these events.

The majority opinion in Estate of Lopez explains that taking factual allegation and evidence in the best light for the Estate (plaintiffs), the following could support an excessive force argument by the Estate to a jury:

Viewing the evidence in the light most favorable to plaintiffs, a reasonable jury could come to the following factual conclusions: (1) the officers came across Andy while on routine patrol, not in response to a crime or a report of someone acting erratically; (2) when Deputy Gelhaus saw Andy, he looked like a teenager, and not like a gang member; (3) Andy was walking normally and his motions did not appear aggressive; (4) Andy was carrying a weapon that looked like an AK-47, but given Gelhaus’s prior “weapon” confiscations, Gelhaus knew that there was some possibility that it was a toy gun; (5) Andy was holding the gun by the pistol grip, down at his side, with the muzzle pointed towards the ground; (6) Andy was carrying the weapon in broad daylight in a residential neighborhood at a time when children of his age reasonably could be expected to be playing; (7) after parking behind Andy, Gelhaus shouted “drop the gun” one time, and that shout was the first moment that Andy became aware that someone was behind him; (8) within seconds, Andy began to turn around naturally in a clockwise direction, still holding the gun; (9) Andy did not know until he turned that the person who shouted was a police officer, and Gelhaus was aware of that fact because he had not seen Andy look back prior to that time; (10) as Andy turned, the weapon turned with him; (11) the gun barrel might have raised slightly as Andy turned, but given that it started in a position where Andy’s arm was fully extended and the gun was pointed straight down at the ground, the barrel never rose at any point to a position that posed any threat to either of the officers; (12) Gelhaus deployed deadly force without knowing if Andy’s finger was on the trigger, without having identified himself as a police officer, and without ever having warned Andy that deadly force would be used; (13) Andy was shot while standing next to an open field with no other people around, (14) and Gelhaus knew it was possible to use less intrusive force given his prior experience at the park.

[Bolding added by Legal Update Editor]

Result: Affirmance of decision of U.S. District Court (Northern District of California) denying qualified immunity to Deputy Sheriff Gelhaus.

Legal Update - 4 September 2017

LEGAL UPDATE EDITORIAL NOTE REGARDING THE LAW ENFORCEMENT DIGEST ENTRY ADDRESSING THIS DECISION: The Estate of Lopez decision is addressed in the September 2017 LED at pages 5-7.

CIVIL RIGHTS ACT: THREE-JUDGE PANEL IS UNANIMOUS IN HOLDING THAT SECOND AMENDMENT RIGHTS OF SEATTLE POLICE DEPARTMENT OFFICERS ARE NOT VIOLATED BY SEATTLE POLICY ON THE USE OF FIREARMS

In Mahoney [and over 100 other Seattle PD officers] v. Sessions and City of Seattle, ___ F.3d ___ , 2017 WL ___ (9th Cir., September 19, 2017), a three-judge Ninth Circuit panel: (1) affirms the U.S. District Court's judgment upholding the use-of-force policy adopted by the City of Seattle; and (2) rejects the plaintiffs’ claims under the federal Civil Rights Act. Plaintiffs are group of approximately 125 Seattle Police Department ("SPD") officers. They allege that the City of Seattle violated the Second Amendment rights of police officers to use firearms for the core lawful purpose of self-defense.

A Ninth Circuit staff opinion summary that is not part of the panel’s opinion summarizes the panel’s unanimous opinion as follows:

The panel applied a two-step inquiry to determine whether the challenged law or regulation violated the Second Amendment. At step one, the panel assumed without deciding that the SPD use-of-force policy was subject to Second Amendment protection. At step two, the panel held that the use of force policy recognized that the plaintiffs could use their department-issued firearms in self-defense in an encounter with a suspect, and concluded that the use of force policy did not impose a substantial burden on plaintiffs’ right to use a firearm for the purpose of lawful self-defense. The panel also concluded that the use of force policy was not such a severe restriction that it amounted to a destruction of the Second Amendment right. The panel, therefore, applied the intermediate level of constitutional scrutiny to determine whether the policy violated the Second Amendment.

Applying intermediate scrutiny, the panel concluded that the use of force policy was constitutional under the Second Amendment because there was a reasonable fit between the policy of Seattle's important government interest in ensuring the safety of both the public and its police officers.

The panel also affirmed the district court's dismissal of plaintiffs' substantive due process and equal protection claims.

Result: Affirmance of ruling of U.S. District Court (Western Washington) dismissing the lawsuit.

CIVIL RIGHTS ACT CIVIL LIABILITY: OFFICER HELD ENTITLED TO QUALIFIED IMMUNITY (AND PANEL INDICATES HE LIKELY WAS JUSTIFIED UNDER THE FOURTH AMENDMENT) IN RELATION TO THE OFFICER’S SHOOTING OF A TRESPASSER WHO AGGRESSIVELY CAME AT OFFICER INSIDE A HOME, SCREAMING AND HOLDING A BROKEN HOCKEY STICK IN A SWINGING POSITION

Legal Update - 5 September 2017 In Woodward v. City of Tucson, 870 F.3d 1154 (9th Cir., September 15, 2017), a 3-judge Ninth Circuit panel rules in favor of the government, granting qualified immunity to City of Tucson police officers in a Civil Rights Act use-of-force case. The primary focus of the case was on the issue of whether the Estate of the man who was fatally shot by police had “standing” to assert Fourth Amendment claims to challenge the warrantless entry by police of an apartment in which he and an evicted former tenant were trespassing. The Ninth Circuit panel rules that because he and the companion were trespassing, his estate could not sue police for entering the apartment without a warrant.

Addressing qualified immunity regarding separate issues concerning the lawfulness of seizure of and use of force on Duncklee, the panel holds that reasonable officers in the defendant officers’ positions would not have known that shooting Duncklee violated a clearly established right. The panel goes much farther and states that the use of deadly force could be acceptable the situation in which the officers found themselves. The panel concludes that the U.S. District Court for Arizona erred in denying defendants qualified immunity regarding this claim.

The facts relating to the use-of-deadly-force issue are described by the panel as follows:

Once in the apartment, the officers realized that space in the [living] room was limited because there were numerous belongings stacked against the wall and taking up approximately half of the room. The officers cleared the front living room and determined that no one else was present. They saw a closed door to what is the apartment’s only bedroom and could hear a radio playing inside the enclosed room. The officers approached the closed door and arranged themselves such that Officer Soeder was to the left of the door and Officer Meyer was to the right. Officer Meyer then knocked on the door and announced their presence, at a volume he believed was loud enough to be heard over the radio playing in the room. No one responded.

Officer Soeder then opened the door. Because of his position he could not see into the bedroom. Officer Meyer, however, stated that he saw Mr. Duncklee holding “a large stick,” with a woman behind him. Officer Meyer stated that Mr. Duncklee was holding the stick in a way that would allow him to strike at Officer Meyer’s head. Officer Meyer stated the following in his affidavit:

As soon as the door swung open enough to see Duncklee, he started charging4 at me with the stick raised where it could strike at my head, chest or arms. As Duncklee charged he was also yelling something like “aaah.” From the instant I saw Duncklee I perceived that he was a serious and potentially deadly threat to me. He came at me in an aggressive manner with a scream and the stick raised over his shoulder. He was initially about five to six feet from me. Duncklee came through the door frame holding the stick in a swinging position with the end above his shoulder. I immediately started backing up, but knew that I couldn’t back up very far because of the small size of the [living] room and the clutter in it. I yelled “Police, stop” at Duncklee, Duncklee kept coming at me. I fired at Duncklee’s chest.

The Ninth Circuit panel’s analysis of the law on the use-of-deadly-force issue is as follows:

The question before this court, then, is whether the officers are entitled to qualified immunity as to their seizure of and use of deadly force on Duncklee. As we have said, the qualified immunity analysis has two prongs: (1) whether the facts alleged by the

Legal Update - 6 September 2017 plaintiff establish that a constitutional right of his was violated; and (2) whether that right was “clearly established” at the time of the alleged violation. We may consider these two prongs in either order.

We shall begin with the second prong: Was it “clearly established” under the undisputed facts of this case that [the officers] should not have used deadly force on Duncklee? These facts, as summarized in declarations made by Meyer and Soeder, are that upon opening the bedroom door with guns drawn, Duncklee immediately advanced towards the officers, yelling or growling, with a two-foot length of broken hockey stick raised in a threatening manner. The apartment was small and cluttered, making it difficult for the officers to retreat. Before firing, Officer Meyer yelled “police, stop” at Duncklee. [LEGAL UPDATE EDITORIAL COMMENT: The officers would have an even better qualified immunity defense if Officer Meyer had added the words, “or I’ll shoot.”]

We conclude that reasonable officers in [the officers’] positions would not have known that shooting Duncklee violated a clearly established right. Indeed, the case law makes clear that the use of deadly force can be acceptable in such a situation. See Tennessee v. Garner, 471 U.S. 1, 11–12 (1985) (“[I]f the suspect threatens the officer with a weapon . . . , deadly force may be used if necessary to prevent escape, and if, where feasible, some warning has been given.”); Blanford v. Sacramento Cty., 406 F.3d 1110, 1111–13, 1117-19 (9th Cir. 2005) (holding that deputies were entitled to qualified immunity for shooting a suspect wandering around a neighborhood with a raised sword, making growling noises, and ignoring commands to drop the weapon). Thus, even assuming that a constitutional violation occurred, the district court erred by denying [the officers] qualified immunity from this claim.

Result: Reversal of denial by U.S. District Court (Arizona) of the officers’ motion for summary judgment dismissal of the lawsuit based on qualified immunity.

LEGAL UPDATE EDITORIAL NOTE REGARDING THE LAW ENFORCEMENT DIGEST ENTRY ADDRESSING THIS DECISION: The Woodward decision is addressed in the August 2017 LED at pages 7-9.

IVIL RIGHTS ACT CIVIL LIABILITY: IN A CASE WHERE OFFICERS MISTAKENLY ARRESTED THE FATHER INSTEAD OF THE SON WHO WAS NAMED IN AN ARREST WARRANT, COURT CONCLUDES OFFICERS VIOLATED FATHER’S FOURTH AMENDMENT RIGHTS ON SEVERAL POINTS, BUT THAT CASE LAW WAS NOT ESTABLISHED FOR QUALIFIED IMMUNITY PURPOSES; BUT COURT CONCLUDES THAT CASE CAN GO TO JURY ON FREE SPEECH THEORY THAT OFFICERS PROLONGED THE FATHER’S DETENTION BASED SOLELY ON HIS “ARGUMENTATIVE” DEMEANOR

In Sharp v. County of Orange, 871 F.3d 901 (9th Cir., September 19, 2017), a 2-judge majority of a 3-judge Ninth Circuit panel generally grants qualified immunity to officers in a Civil Rights Act lawsuit, but all three judges agree that the officers are not entitled to qualified immunity on a free speech claim by the unlawfully arrested man. The free speech claim was that officers continued to detain an arrestee after learning of mistaken identity (arresting the father of a son wanted on an arrest warrant), with the reason for the prolonged detention, as evidenced in a comment by one of the officers, being the “argumentative” behavior of the arrestee.

FACTS

Legal Update - 7 September 2017 Where officers are seeking summary judgment on their qualified immunity claim, the courts are required to look at all factual allegations in the best light for the plaintiffs. Adhering to that requirement, the majority opinion for the Ninth Circuit panel describes the factual allegations as follows:

In August 2013, Sharp IV was released from state prison subject to conditions of probation. The conditions required him to “[s]ubmit [his] person and property . . . to search and seizure at any time of the day or night by any law enforcement officer . . . with or without a warrant, probable cause or reasonable suspicion.” With no place to stay after his release, his parents, Sharp III and Carol, agreed to let him live in their home at 408 Camino Bandera. Thus, upon his release, Sharp IV informed the probation office of this address as his place of residence. In mid-September 2013, however, Sharp IV’s parents kicked him out of their house. Carol then called their son’s probation and parole officers and informed them that Sharp IV “no longer lived in [their] home.”

In September 2013, a California criminal court issued two arrest warrants for Sharp IV. The deputies decided to execute the warrants on the evening of October 2, 2013 – a date on which Sharp IV, coincidentally, was present at the Camino Bandera residence to pick up some belongings.

Before executing the warrants, Deputy Prescott reviewed Sharp IV’s two active arrest warrants, which indicated that Sharp IV was male, white, fifty-one years old, 180 pounds, between 5'11" and 6' tall, and resided at 408 Camino Bandera. He also reviewed Sharp IV’s DMV records and probation response form, which confirmed the same address of residence. Finally, he checked Sharp IV’s criminal records and learned that Sharp IV had previously committed violent crimes, including kidnapping, assault with a deadly weapon, and felony domestic violence. After reviewing these materials, Deputy Prescott met Deputies Van De Kreeke and Chevalier in a parking lot near the Camino Bandera residence to formulate a plan. Deputy Prescott showed them a packet of documents which included a photograph of Sharp IV and the arrest warrant listing the Camino Bandera residence as Sharp IV’s address of record.

At around 11:00 p.m., October 2, 2013, the deputies arrived at the Camino Bandera residence. Deputy Chevalier made his way to the backyard while Deputies Prescott and Van De Kreeke went to the front door. At the front door, they placed a piece of tape over the peephole opening and knocked several times. Sharp III looked through the peephole but could not see anything, so he flashed the front-porch light and confirmed that something was covering the peephole. Around that time, Deputy Prescott reported that he saw a person in a black shirt peek through the blinds.

Deputy Chevalier then radioed that the subject was fleeing out the backyard: “[H]e’s running out the back. Foot pursuit . . . going to be heavily wooded bushes. Male, white, 5'11", 180, wearing a black shirt, tan pants, white shoes.” Deputies Prescott and Van De Kreeke rushed around the back of the residence to assist in the pursuit, but nobody could locate the subject. Working their way through dense brush to find Sharp IV, the deputies arrived at a nearby golf course and spread out to cover more ground. At 11:05 p.m., Deputy Prescott radioed to nearby officers to cover the Camino Bandera residence in case the subject doubled back to the house. Deputy Chevalier added a further warning shortly thereafter: “Be advised, he’s prone to violence. Violent history towards law enforcement.” By this time Deputy Anderson, who was on patrol nearby and had

Legal Update - 8 September 2017 heard these radio transmissions, began making his way to the Camino Bandera residence for backup support.

Meanwhile, the deputies continued their search for Sharp IV on the golf course. While on the golf course, Deputy Prescott saw a man in the backyard of the Camino Bandera residence whom he believed may have been Sharp IV. Deputy Prescott reported that the man he saw was bald, wore a blue shirt, and had the same stature as Sharp III. According to Deputy Prescott, the man yelled something at the deputies, turned around, and re-entered the home through the backdoor.

Deputy Prescott then radioed the group that the “[s]uspect’s gonna be back in the house, just went in the back door.” Then he directed Deputy Anderson specifically, “I need you to go to the front of the house.” Deputy Anderson responded that he was en route. Believing that Sharp IV had re-entered the house, Deputies Prescott, Chevalier, and Van De Kreeke began making their way back to the residence.

At around 11:13 p.m. Deputy Anderson, accompanied by Deputy Flores, arrived at the house. They had not seen a photograph of the warrant subject, nor did they know the subject’s name. Deputy Anderson did, however, recall from an earlier radio transmission that “the suspect fleeing the residence [was] described as a white male wearing a black shirt and tan pants.” The deputies also knew that the suspect was “last seen in the area of the house” and “may have r[u]n back into the house.”

As Deputies Anderson and Flores arrived at the scene, Sharp III – the suspect’s father – walked out of the front door wearing a light blue shirt and blue jeans. As Sharp III walked off the front porch, Deputy Anderson admitted there was enough light to be able to approximate Sharp III’s age. Although Defendants dispute this, Sharp III claims he was not yelling or acting belligerent at the time, but rather walked calmly toward the deputies. Despite the mismatched clothing and an alleged demeanor inconsistent with that of a fleeing suspect, Deputies Anderson and Flores began shouting commands with their weapons drawn: “Get down on the ground!” and “put your hands up!”

The deputies then placed Sharp III under arrest. In explaining their rationale for the arrest, Deputy Anderson stated: “I hadn't identified who he was and believed he may be the wanted person.” Deputy Flores, who was the supporting deputy on the scene rather than the deputy who physically conducted the arrest, further explained: “I didn't know who was coming out of the house, to be honest. . . . [I]t wasn’t secured, so we were trying to just detain everybody.” Nevertheless, despite their uncertainty, the deputies proceeded to arrest Sharp III.

In doing so, Deputy Anderson grabbed Sharp III”s left arm, put it behind his back, “shoved it” upward toward his neck, and handcuffed his left wrist. Deputy Anderson then conducted a search of Sharp III’s person, instructing him to empty out his pockets on the front lawn. Finally, Deputy Anderson handcuffed Sharp III’s right wrist, thereby fully restraining his arm movement. According to Sharp III, the handcuffs were “so tight that [he] still ha[s] scars on [his] wrists to this very day.”

At 11:15 p.m., Deputy Anderson placed Sharp III in the back of a patrol car. He asked for the arrestee’s full name and birthday, to which Sharp III responded that his name was Merritt Llewellyn Sharp and that he was born on August 6, 1940 – thereby making him seventy-three years old. For the next several minutes, Deputy Anderson attempted to

Legal Update - 9 September 2017 match Sharp III's identity with outstanding warrants by running the information through a mobile computer, but this effort was delayed by low internet connectivity in the area.

At 11:19 p.m., several deputies went back to search the house pursuant to Sharp IV's probationary search condition. At the front door, however, they confronted Sharp III'’s wife, Carol, who informed them that they had arrested the wrong man, and that her son Sharp IV did not live there anymore. Realizing their mistake, the deputies began to question Sharp III about his son’s whereabouts. Sharp III was angry and still restrained in the back of the patrol car, but he answered their questions. He disclaimed any awareness of his son’s location, but told the deputies that his son had been in the house twenty minutes earlier.

At this time, the deputies did not release Sharp III. Instead, they kept him handcuffed and locked in the patrol car. Sharp III was furious and adamantly protested his detention, loudly swearing at the deputies and threatening to sue them. In response, Deputy Anderson told Sharp III: “If you weren’t being so argumentative, ‘I'd probably just put you on the curb.”

The home search began at 11:28 p.m., during which time Carol was forced to wait on the front porch with Deputies Flores and Hudson. Plaintiffs claim that the search encompassed more than just a search for Sharp IV. Taking the facts as stated by Plaintiffs, Deputies Prescott, Chevalier, Van De Kreeke, and Pereyra entered the home and opened kitchen cabinet and pantry doors, removed the air-conditioning cover in the attic, and searched various drawers in Carol's own bedroom. When Carol was allowed back in the house, she discovered clothing flung on the floor in her bedroom closet. After the search concluded, Sharp III was released from the patrol car at 11:39 p.m. That means, even after the deputies discovered he was not the subject of the arrest warrant, Sharp III was detained for about twenty minutes in the patrol car.

The morning after the incident, Plaintiffs went to an urgent care facility for treatment of Sharp III’s shoulder, which had been causing him pain after Deputy Anderson yanked his left arm behind his back. Sharp III ultimately needed surgery to repair a torn rotator cuff.

[Footnotes and citations to the record omitted; bolding added]

LEGAL ANALYISIS

In a Civil Rights Act lawsuit, an officer is entitled to qualified immunity if: (1) the officer did not violate the plaintiff’s constitutional rights; or (2) the constitutional right, if violated, was not clearly established under the case law at the time of the incident. In a summary by staff of the Ninth Circuit (which is not part of the Court’s opinions), the views of the majority judges and the dissenting judge on the Civil Rights Act issues are summarized as follows:

Majority’s ruling of unlawful seizure but qualified immunity for initial arrest of the father

First, the panel addressed Sharp III’s claims that the deputies unlawfully seized him in violation of the Fourth Amendment. Concerning the initial mistaken arrest of Sharp III on the front lawn and initial transfer to the patrol vehicle, the panel held that this initial arrest based on mistaken identity was constitutionally unreasonable [primarily because the clothing description of the suspect did not match the clothing worn by the seized man],

Legal Update - 10 September 2017 and thus illegal, but it did not violate clearly established law, and thus qualified immunity was warranted.

Majority’s ruling of unlawful seizure but qualified immunity under the Fourth Amendment for prolongation of seizure after learning about mistaken identity

Concerning the subsequent detention of Sharp III inside the patrol vehicle after the deputies discovered that he was not the warrant subject, the panel held that the categorical detention rule in Michigan v. Summers, 452 U.S. 692 (1981), did not apply to arrest warrants at issue in this case. Because there were no particular circumstances justifying Sharp III's detention after learning he was not the arrest-warrant subject, the panel concluded that detention was unconstitutional. The panel, further held, however, that the detention did not violate clearly established law because of the legal ambiguity existing at the time of the arrest as to whether the categorical Michigan v. Summers exception [for search warrant detentions] applied to arrest warrants. The panel concluded that qualified immunity should have been granted.

Majority’s ruling rejecting claim of excessive force

The panel next addressed Sharp III's claims that Deputy Anderson violated the Fourth Amendment by using excessive force when Sharp III was arrested. The panel held that while the degree of force here was significant, Deputy Anderson was entitled to qualified immunity because plaintiffs did not offer anything other than general legal propositions which cannot clearly establish that Deputy Anderson’s particular conduct was unlawful.

Majority’s ruling granting qualified immunity on claim of unlawful search of person

Concerning Sharp III’s assertion of a Fourth Amendment violation based on the search of his person during the initial arrest, the panel held that since the arrest was not clearly proscribed by established law, neither was the subsequent search. Accordingly, qualified immunity should have been granted.

Majority’s ruling rejecting claim of unlawful search of residence, both because (1) search was not shown to be unlawful, and (2) any law against it was not clearly established

The panel addressed the plaintiffs’ assertion that the deputies' search of their residence violated the Fourth Amendment. The panel held that the officers reasonably believed that Sharp IV resided in plaintiffs’ home. The panel further held that Sharp IV’s probation condition requiring him to submit his property to suspicionless searches defeated plaintiffs’ claims that the deputies exceeded the scope of the authorized search by looking in areas where Sharp IV would not be found. The panel also held that there was no established law clearly proscribing the deputies’ reliance upon Sharp IV’s probation condition for their search of the residence. For these two reasons, the panel concluded that qualified immunity was warranted on this claim.

Majority’s ruling accepting plaintiff’s First Amendment claim for retaliating against him for being, in the officer’s words, “argumentative”

Concerning Sharp III’s First Amendment [freedom of speech] claim based on the deputies’ alleged retaliation against him for being argumentative, the panel held that Sharp III suffered unconstitutional retaliation that was clearly proscribed by established

Legal Update - 11 September 2017 law. The panel concluded that qualified immunity was properly denied. LEGAL UPDATE EDITORIAL NOTE: The lead opinion cites on this issue the Ninth Circuit decision in Ford v. City of Yakima, 706 F.3d 1188 (9th Cir. 2013); Ford was addressed in the June 2013 Law Enforcement Digest beginning at page 26.

Judge Smith’s partial dissent

Judge N.R. Smith dissented in part. Judge N.R. Smith agreed with the majority that the deputies violated the Constitution when the deputies seized Sharp III, when the deputies used force against him, and when the deputies searched his person. Judge N.R. Smith disagreed whether the rights were “clearly established” at the time of the violation. He wrote that the majority failed to view the facts in the light most favorable to Sharp III when analyzing the Fourth Amendment claims, and consequently the majority improperly granted the deputies qualified immunity for their initial arrest of Sharp III, their use of excessive force against Sharp III, their subsequent search of Sharp III, and their continued arrest of Sharp III. Judge N.R. Smith would hold that Sharp III’s Fourth Amendment claims stemming from these violations should go to trial along with Sharp III's claim of First Amendment retaliation.

[Subheadings and bracketed words were added to the Ninth Circuit staff summary]

Result: Reversal in part and affirmance in part of summary judgment ruling of U.S. District Court (Central District of California) that had denied qualified immunity to the officers on almost all issues; case remanded for further proceedings.

LEGAL UPDATE EDITORIAL NOTE REGARDING THE LAW ENFORCEMENT DIGEST ENTRY ADDRESSING THIS DECISION: The Sharp decision is addressed in the September 2017 LED at pages 2-5.

INITIATION-OF-CONTACT RULE UNDER MIRANDA: PANEL HOLDS IN HABEAS CORPUS CASE THAT OFFICERS VIOLATED RIGHTS OF 14-YEAR-OLD MURDER SUSPECT UNDER MIRANDA-BASED INITIATION-OF-CONTACT RULE OF EDWARDS V. ARIZONA; OFFICERS SHOULD NOT HAVE CONTINUED TO QUESTION THE CUSTODIAL SUSPECT AFTER HE CLEARLY INVOKED HIS RIGHT TO COUNSEL

In Rodriguez v. McDonald, 872 F.3d 908 (9th Cir., September 29, 2017), a three-judge Ninth Circuit panel rules in habeas corpus review that officers violated the Miranda rights of a 14-year- old drive-by murder suspect by not ceasing a custodial interrogation at the point when the juvenile suspect unambiguously requested an attorney.

Under. Edwards v. Arizona, 451 U.S. 477 (1981), once a Mirandized custodial suspect indicates unambiguously to police that the suspect wishes to consult an attorney before speaking further with officers, the officers are not permitted to do any further police-initiated interrogation while the suspect remains in continuous custody. The purpose of the rule is to prevent badgering of a suspect after he or she has clearly expressed the desire to consult an attorney before further conversation with the police. The term “interrogation” under Miranda refers generally to any words or actions on the part of the police that the police should know are reasonably likely to elicit an incriminating response from the suspect.

Relevant facts

Legal Update - 12 September 2017

The Ninth Circuit panel describes as follows the facts that the panel concludes constituted a violation of the initiation-of-contact rule of Edwards v. Arizona:

[After Mirandizing the 14-year-old Mr. Rodriquez for the videotaped interrogation, the officers] questioned Mr. Rodriguez about his involvement in the drive-by shooting. The officers repeatedly suggested that Mr. Rodriguez had been riding in the van with Angel Gomez, and that Mr. Gomez had pressured him to shoot Mr. Penaloza to prove his loyalty to the Highland Park gang. Mr. Rodriguez repeatedly denied being in the van during the shooting.

In response, the officers repeatedly accused Mr. Rodriguez of lying and told him that others had already implicated him in the shooting. They showed Mr. Rodriguez pictures of Angel Gomez and Richard Powell, and told him that they knew the two men went by “Vamps” and “Away,” respectively. They told Mr. Rodriguez that Mr. Penaloza had claimed that he saw both “Away” and Mr. Rodriguez at the scene of the crime, and that “Away” had already told the officers what happened.

Eventually, Mr. Rodriguez asked for an attorney:

Rodriguez: Can I speak to an attorney? Detective: Whatever you want. Rodriguez: Can I speak to an attorney? Detective: You tell me what you want. Rodriguez: That is what I want.

Detective: That's fine bro we stop because we can’t talk to you anymore, okay, so. Detective: You’re going to be charged with murder today. Rodriguez: Why? Detective: Why? We already told you why, man, we’ve already told you why. Remember when we came in we told you we were investigating. This is what's been said about you. We asked you to tell us the truth; you were going to tell us what happened? That’s what we meant tell us what’s – tell us what’s going on, so we can put – so we can put your story on paper. That is the reason we’re asking you this. If you want to talk to an attorney you can talk to an attorney. To us we’re just doing our job.

Detective: If you don’t want to talk to us just tell us you don’t want to talk to us if you don’t, that’s it. Yeah. I mean, you know, it’s nothing personal here, bro, we’re just doing our job, man, that’s all, okay. Like I said, you tell me now that’s exactly what I’m gone put on paper that’s exactly what I can do for you, man, that’s it – that’s it. We can go on to other cases and other things. We’ll just see you in court. I just want you to remember that I tried to give you the opportunity. I tried to give you the opportunity to straighten things out.

Detective: Do you know Easy from Highland Park? You don’t know him? Rodriguez: No. Detective: You don’t know him? This one here? [Shows Mr. Rodriguez a photograph] You don’t know him? Rodriguez: No. Detective: The girl that died, that’s his girlfriend.

Legal Update - 13 September 2017

Officer: Yeah, I guess we can. I got to take him downtown and process him. Rodriguez: You’re not going to charge me? Detective: You’re going to East Lake. Rodriguez: What am I going to East Lake for? Detective: Cause they’re going to charge you with murder. When you get charged with a crime, they take you to East Lake. It’s up to East Lake to send you [back up] here, man, okay. Like I said, I ain’t got nothing personal here my bro . . .

. . . .

[A short while later, Mr. Rodriguez] was transported to the central station for fingerprinting and photographing. He was then returned to the local station while the detectives completed their reports. After doing so, they took [Mr. Rodriguez] to a juvenile facility.

Shortly after their arrival, while in the intake area of the juvenile facility, [Mr. Rodriguez] asked Detective Rivera, “what’s going to happen?” The detective replied that the case was going to be presented to the prosecutor’s office. [Mr. Rodriguez] then requested the detective’s business card, explaining that he might want “to talk” to the detective. In response, Detective Rivera explained that because [Mr. Rodriguez] had invoked his right to counsel, the detective could not speak to him until [Mr. Rodriguez] had spoken to an attorney, unless [Mr. Rodriguez] “changed his mind” about exercising his right to counsel. [Mr. Rodriguez] replied that he wanted to talk to the detective. Detective Rivera requested an interview room and a tape recorder, but no such device was available. Once inside the interview room, [Mr. Rodriguez] narrated what happened during the shooting incident. At the detective’s request, [Mr. Rodriguez] wrote his own statement, which was admitted in evidence.

In that statement, Mr. Rodriguez confessed to shooting Mr. Penaloza at the urging of Mr. Gomez.

[Bolding added]

Legal analysis

The Ninth Circuit Opinion explains why the panel concludes that the government did not meet its heavy burden to show that, after invoking the right to counsel, the suspect initiated contact with law enforcement and waived his or her rights again. The voluntariness of a suspect's waiver – like the voluntariness of a subsequent confession – is assessed by examining both (1) the police methods used to produce the waiver, and (2) the individual characteristics of the suspect. The Opinion addresses Mr. Rodriguez's individual characteristics first, explaining as follows:

In the context of the requisite waiver analysis, Mr. Rodriguez's youth is impossible to ignore. Mr. Rodriguez was fourteen years old at the time of his arrest and interview. As the Supreme Court has repeatedly recognized, youth are particularly susceptible to pressure from police. See, e.g., J.D.B. v. North Carolina, 564 U.S. 261, 272-73 (2011) (“[A] reasonable child subjected to police questioning will sometimes feel pressured to submit when a reasonable adult would feel free to go") . . . .

Legal Update - 14 September 2017 . . . .

At the time of his interrogation, Mr. Rodriguez was not only young; he also had Attention Deficit Hyperactivity Disorder and a “borderline” I.Q. of seventy-seven. An I.Q. “between 70 and 75 or lower . . . is typically considered the cutoff I.Q. score for the intellectual function prong of the mental retardation definition.” Atkins v. Virginia, 536 U.S. 304, 309 n.5 (2002) . . . .

Turning to the other prong of the voluntariness inquiry, the Opinion states that the tactics employed by the officers in this case also support the conclusion that Rodriguez’s confession was not voluntary. On this point, the Opinion first points to the approach the officers took prior to Rodriquez invoking his right to an attorney:

The officers suggested to Mr. Rodriguez that cooperation would result in leniency: they told him they would take “what you tell us” to the district attorney “and say, hey man, you know what, this guy – we think – he’s – you know, he’s 14 maybe there was a little bit of influence from the other guys the older guys, you know, he still – we can still save him he’s not an entirely bad dude. Even more explicitly, they suggested that cooperating was the only way to “save [his] life”: “I mean, that’s it what’s done is done, but this is like the rest of your life now, this is the difference, you['re] only 14, man. It’s not like you[‘re] 18, 19 and you know, you're 14 years old, man, you can still save your life. You still have a lifetime.” Further: “You got a chance to set things right, take responsibility for what you did, and then whatever happens happens but be assured that what we would like to do is talk to the district attorney tell him that you were cooperative and being truthful and [accept] the responsibility.”

Then the panel notes that after Rodriguez asked for a lawyer, the officers continued to pressure him. Though Mr. Rodriguez had repeatedly denied participating in the shooting, the officers told him he would be charged with murder later that day, increasing the urgency of cooperation. An officer reminded Mr. Rodriguez that they had “tried to give [him] the opportunity to straighten things out,” recalling the officers’ earlier promises of leniency. The Opinion asserts:

This is precisely the type of threat that we have held makes a subsequent re-initiation of interrogation involuntary. . . . . [B]y suggesting to Mr. Rodriguez that he would be imminently charged with murder but that cooperation would result in more lenient treatment from the court, the probation office, and from the police themselves, the officers “effectively told [Mr. Rodriguez] he would be penalized if he exercised rights guaranteed to him under the Constitution of the United States.”

[Court’s footnote 3: Although it is generally not unconstitutional for officers to lie as an interrogation technique, we note that Detectives Rivera and Carrillo employed sophisticated interrogation techniques that likely helped overcome Mr. Rodriguez’s will. Before Mr. Rodriguez’s invocation of his right to counsel, the officers repeatedly told Mr. Rodriguez that they had already talked to the other men involved and that those men had told them the whole story. The officers then proceeded to feed Mr. Rodriguez details about the shooting. They framed their questions to present Mr. Rodriguez with a choice between two alternative factual narratives. Either Mr. Rodriguez was a “bad dude” who killed in cold blood, or he was a young, scared kid who shot Mr. Penaloza and Ms. Portillo under pressure from older gang members.

Legal Update - 15 September 2017 When Mr. Rodriguez answered in a way that conflicted with the officers’ narrative, they accused Mr. Rodriguez of lying and told him that “nobody likes a liar, man, the judges [don’t] like liars, the probation department doesn’t like liars, police don’t like the liars.” When Mr. Rodriguez changed his story to fit the officers’ narrative, by contrast, they praised him. Pressuring a suspect “to change answers inconsistent with guilt and adopt answers evidencing guilt instead” is a police tactic particularly likely to cause an intellectually disabled suspect to “shift” his answers “to conform to the perceived desires of the interrogator.” See Miranda, 384 U.S. at 448 (“[C]oercion can be mental as well as physical”); cf. Preston, 751 F.3d at 1024 (quoting Stanley L. Brodsky & Allyson D. Bennett, Psychological Assessments of Confessions and Suggestibility in Mentally Retarded Suspects, 33 J. Psychiatry & L. 359, 363 (2005))}.

. . . . Particularly in light of Mr. Rodriguez’s special vulnerabilities to coercion, . . . . we hold that these coercive police tactics overbore Mr. Rodriguez’s will, and that his waiver of his previously invoked right to counsel was not voluntary.

The Opinion also asserts that the officers’ failure to honor Rodriguez’s invocation of his right to counsel “effectively amended the content of the Miranda warnings they had previously delivered”:

Though Mr. Rodriguez was told that he had the right to “the presence of an attorney before and during any questioning,” when Mr. Rodriguez asked for an attorney to assist him, no attorney was contacted. Instead, the officers immediately continued to question Mr. Rodriguez, directly contradicting the earlier warning that Mr. Rodriguez had the right to an attorney during questioning, if he wanted one. The officers told Mr. Rodriguez that he was going to be taken to Eastlake and charged with murder that very day. Over the next several hours, as Mr. Rodriguez remained in police custody, no attorney was ever even contacted, let alone provided to Mr. Rodriquez.

In the closing two paragraphs of the Opinion’s analysis of the merits of the Miranda issue, the Opinion explains why the panel rejects the idea that a subsequent waiver by Rodriguez did not cure the violation by officers of the initiation-of-contact rule:

Finally, as the officers were booking Mr. Rodriguez into a juvenile detention facility – having impressed upon him that he would imminently be charged with murder – Mr. Rodriguez asked Detective Rivera what was going to happen next. Though Detective Rivera explained that he could not speak to him until Mr. Rodriguez had spoken to an attorney, anyone in Mr. Rodriguez’s shoes would have understood that no attorney would arrive before he was charged with murder. Given what the officers had told him, Mr. Rodriguez also would have believed that speaking to Detective Rivera without counsel was his last, best chance to help himself. Thus, when Detective Rivera told him that he could “chang[e] his mind” about exercising his right to counsel, Mr. Rodriguez’s subsequent waiver was not “made with a full awareness of both the nature of the right being abandoned and the consequences of the decision to abandon it.” . . . .

The danger that a suspect could be pressured to rescind an earlier invocation of the right to counsel is exactly the constitutional hazard that Edwards aimed to prevent. Edwards is a “bright-line rule,” expressing the “'relatively rigid requirement that interrogation must cease'” through “clear and unequivocal” guidelines to law enforcement. . . . . Under Edwards, police must give even greater deference to an invocation of the right to

Legal Update - 16 September 2017 counsel than to a decision to remain silent, which itself must be “scrupulously honored”: a suspect’s request for counsel, unlike a decision to end questioning, raises the presumption that the suspect “is unable to proceed without a lawyer's advice.” . . . . When officers fail to “scrupulously honor” a suspect’s invocation of the right to counsel, the suspect’s subsequent waiver of that right – and any confession that follows – is presumptively invalid. . . . Mr. Rodriguez’s waiver and confession present the case in point.

[Some citations omitted; others revised for style; some footnotes omitted]

LEGAL UPDATE EDITORIAL COMMENTS: (1) What language used by suspects in references to an attorney are unambiguous invocation of Miranda right to counsel? It is not easy to predict what a court will deem to have been an unambiguous assertion of the right to silence or to an attorney in a custodial setting. Hedging words from the suspect such as “might” or “maybe” are generally viewed as ambiguous. I think that officers pursuing custodial interrogation are safest legally if they treat all seemingly ambiguous references to the right to silence or the right to counsel – whether the suspect’s reference is uttered before or after Miranda warnings and/or waiver – in the same way, i.e., by (1) clarifying the statement and the suspect’s wishes, and (2) at least confirming that the suspect understands his or her rights and wishes to talk. But in this case, there did not appear to be any ambiguity.

(2) The Ninth Circuit Opinion criticizes some other aspects of the interrogation beyond the detectives’ failure to respect the suspect’s invoking of his right to counsel:

The Ninth Circuit Opinion’s footnote 3, set forth above, together with other discussion not excerpted above, seems to criticize the detectives for use of the tactic of giving two alternative guilt-options in some of their questioning. Under the tactic, both choices are highly incriminating, but one option gives the person a chance to save some face. Thus, the panel’s opinion notes that the officers asked if, on the one hand, he is a cold-blooded killer, or on the other hand, he is a young kid intimidated into committing murder by bad people. Law enforcement’s use of this tactic in questioning is not uncommon and is generally acceptable, but with a “severely” intellectually disabled person or a very young and vulnerable suspect, the two-incriminating-choices technique can result in an involuntary confession. Note that a law enforcement training guide for interrogators, the Inbau, Reid and Buckley book, Criminal Interrogations and Confessions, instructing on what is known as the “Reid method,” indicates that this method should not be used with persons of seriously impaired mental ability.

In the following discussion, the Ninth Circuit Opinion also appears to indirectly criticize the detectives’ questioning of Rodriguez in the videotaped custodial questioning that occurred before the detectives gave him Miranda warnings.

In particular, we note the government's reliance in closing argument on a theory first suggested by Detectives Rivera and Carrillo during their interview with Mr. Rodriguez: the theory that Mr. Rodriguez had received his tattoo no more than one month prior – that is, immediately after the shooting – as confirmation that he had proven himself loyal to the gang. The portion of the videotaped interview where the detectives questioned Mr. Rodriguez about the age of his tattoo was played for the jury, even though this questioning preceded the Miranda warnings. Paired with this evidence, admission of Mr. Rodriguez's coerced confession, in which he

Legal Update - 17 September 2017 admitted to shooting Mr. Penaloza because he was a member of the Drifters likely had a substantial and injurious influence on the jury's evaluation whether Mr. Rodriguez had acted for the benefit of a “criminal street gang.” Proof of this allegation resulted in a mandatory additional term of ten years, to be served consecutively. . . . Altogether, admission of his confession cost Mr. Rodriguez eighty-four years in prison: the very “lifetime” that, in exchange for Mr. Rodriguez’s cooperation, the detectives had offered to save.

LEGAL UPDATE EDITORIAL NOTE REGARDING OTHER READING ON THE INITIATION- OF-CONTACT ISSUE ADDRESSED ABOVE: For discussion of case law relevant to this case, see the following article by John Wasberg on the CJTC LED Internet page: Initiation of Contact Rules Under The Fifth Amendment. The article was last updated effective July 1, 2017. See also the discussion at pages 21-26 of the following Washington-focused law enforcement guide on the Criminal Justice Training Commission’s LED Internet page: Confessions, Search, Seizure and Arrest: A Guide for Police Officers and Prosecutors, May 2015, by Pamela B. Loginsky, Staff Attorney, Washington Association of Prosecuting Attorneys.

LEGAL UPDATE EDITORIAL NOTE REGARDING THE LAW ENFORCEMENT DIGEST ENTRY ADDRESSING THIS DECISION: The Rodriguez decision is addressed in the September 2017 LED at pages 2-5.

BRADY VIOLATIONS REQUIRE GRANT OF HABEAS RELIEF TO PRISONER ON MURDER AND OTHER CONVICTIONS; DEFENDANT SHOULD HAVE BEEN TOLD OF (1) AN OFFICER’S SHOEPRINT OBSERVATION, (2) AN EXPECTATION THAT A WITNESS HAD OF RECEIVING A BENEFIT FROM THE STATE FOR HIS TESTIMONY, AND (3) THE VICTIM’S PRECISE DESCRIPTION OF THE ASSAILANT’S HAIRSTYLE

In Browning v. Baker, ___ F.3d ___ , 2017 WL ___ (9th Cir., September 20, 2017), a three-judge Ninth Circuit panel grants habeas corpus relief to Browning from his convictions of burglary, robbery with the use of a deadly weapon and murder with the use of a deadly weapon. The panel agrees with Browning that the government withheld material, exculpatory evidence favorable to the defense in violation of Browning’s constitutional Due Process rights as described in Brady v. Maryland, 373 U.S. 83 (1963).

The panel held that an officer’s shoeprint observation, a witness’s expectation of a benefit for his testimony, and the precise description of the assailant’s hairstyle received from the victim were all favorable to Browning under Brady. The panel further held that the withheld evidence was “material” for purposes of Brady because, if the government had properly made the disclosures, there is a reasonable probability that the jury would have reached a different result

T he panel describes as follows the circumstances related to the withholding of evidence from the defendant at the time of trial:

The bloody shoeprints

At trial, Browning argued that the bloody shoeprints – which did not match the shoes Browning was wearing when he was arrested – demonstrated that someone else committed the murder. The prosecution responded with Officer Horn’s testimony that responding paramedics and off-duty detectives often wear tennis shoes at crime scenes,

Legal Update - 18 September 2017 misleadingly suggesting that the shoeprints came from them. But during the state habeas hearing, [Officer] Branon testified that he and Officer Robertson were the first responders at the store, before the paramedics or other officers, and that the shoeprints were there when he arrived. [Officer] Branon’s observation of the shoeprints was directly contrary to [Officer] Horn’s suggestion that paramedics or other officers left the prints. Had [Officer] Branon’s observation been disclosed, Browning could have used that evidence to bolster his contention that the shoeprints were left by the real killer. This makes [Officer] Branon’s observation exculpatory under Brady. . . . . And, under Brady, [Officer] Branon’s knowledge of the shoeprints is imputed to the government as a whole.

. . . .

Benefit for Randy Wolfe’s Testimony

When Pike learned that Randy [a prosecution witness] had been allowed to plead guilty in an unrelated case to a lesser charge of attempted possession of stolen property, Pike moved for a continuance in Browning’s case to investigate whether Randy and [Deputy Prosecutor] Seaton had made a deal. [Deputy Prosecutor] Seaton responded in court: “I can tell the court categorically . . . there has never been any plea bargaining with Randy Wolfe regarding this case.” At Browning’s trial, [witness] Randy similarly testified that he had not been promised anything for his testimony, including any promise of a more lenient sentence on his recent conviction. But after Browning’s trial, [Deputy Prosecutor] Seaton spoke with Randy’s sentencing judge on Randy’s behalf. This led Randy’s prosecutor to withdraw his recommendation of five years, and the judge to sentence Randy to only probation. The Supreme Court of Nevada held that this constituted withholding of impeachment evidence favorable to Browning at his trial . . . . and the state does not dispute that conclusion.

. . . .

We . . . read the Supreme Court of Nevada’s decision as concluding that Randy knew that [Deputy Prosecutor] Seaton might help reduce his sentence if he testified against Browning. It is that piece of evidence – Randy’s expectation of a potential benefit in exchange for his testimony – that constituted impeachment evidence that should have been disclosed to Pike. . . .

Hugo Elsen's Description of the Killer’s Hair

Browning's hairstyle at the time of the robbery was an Afro. At trial, Officer Branon testified that he received a description of the suspect at the scene as sporting a “shoulder length J[h]eri-type curl.” At closing, the prosecution argued that whoever gave this description to [Officer] Branon did not know the difference between a Jheri Curl and an Afro. But during the state habeas hearing, [Officer] Branon testified that the description he was given did not actually include the words “Jheri Curl.” Rather, [the victim who later died] told him that the assailant'’ hair was “shoulder length,” “loosely curled,” and “wet.” [Officer] Branon, who is African American, then interpreted those words to mean a Jheri Curl, and used that term in his original report.

Neither “Jheri Curl” nor “shoulder length,” “loosely curled,” and “wet” are descriptions of an Afro. But only “Jheri Curl” is susceptible to the argument that the speaker could have

Legal Update - 19 September 2017 seen an Afro and used the wrong term because he was unfamiliar with African American hairstyles. Had the prosecution disclosed before trial that victim Hugo Elsen’s description of his assailant’s hair was not a “shoulder length J[h]eri-type curl,” but “shoulder length,” “loosely curled,” and “wet,” Browning could have easily refuted the prosecution’s argument. This makes the exact words Hugo used to describe his assailant evidence favorable to the defense under Brady.

[Footnotes omitted; some citations omitted]

As noted above, the panel then held that the withheld evidence was “material” for purposes of Brady because, if the prosecution had properly made the disclosures, there is a reasonable probability that the jury would have reached a different result. The panel’s extended discussion of materiality is not presented in this Legal Update entry.

Result: Habeas corpus petition of Paul Browning granted as to his convictions of burglary, robbery with the use of a deadly weapon and capital murder with the use of a deadly weapon; Browning presumably will be retried.

LEGAL UPDATE EDITOR’S COMMENT: It is important for law enforcement officers to remember that evidence that law enforcement does not disclose to the prosecutor can support a Brady claim. Also, law enforcement officers should be aware that, in addition to supporting arguments by criminal defendants, Brady violations can support both (1) Civil Rights Act civil liability and (2) civil suits under Washington common law for malicious prosecution. When in doubt as to whether evidence or information relevant to pending prosecutions is exculpatory for purposes of Brady, officers/agencies should get the information to the prosecutor’s office for an assessment.

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WASHINGTON STATE SUPREME COURT

SEXTING CRIME: 17-YEAR-OLD WHO TEXTED A PICTURE OF HIS ERECT PENIS TO AN ADULT WOMAN TO HARASS HER COMMITTED “DEALING IN DEPICTIONS OF A MINOR ENGAGED IN SEXUALLY EXPLICIT ACTIVITY” UNDER RCW 9.68A.050(2)(a); STATUTE (1) DOES NOT VIOLATE FREE SPEECH RIGHTS, AND (2) IS NOT VOID FOR VAGUENESS

In State v. Gray, ___Wn.2d ___ , 402 P.3d 243 (September 14, 2017), the Washington Supreme Court votes 6-3 to reject defendant’s argument. The Court holds that a 17-year-old who texted a picture of his penis to an adult woman to harass her was lawfully convicted of violation of second degree dealing in depictions of a minor engaged in sexually explicit activity, RCW 9.68A.050(2)(a). The majority opinion affirms the decision of Division Three of the Court of Appeals in State v. E.G., 194 Wn. App. 457 (Div. III, June 14, 2016) June 2016 LED:06.

The majority opinion of the Gray Court briefly notes the majority opinion’s rulings on the statutory and constitutional issues as follows:

When he was 17 years old, Eric D. Gray electronically sent an unsolicited picture of his erect penis to an adult woman. The woman contacted the police, and Gray was charged with and convicted of one count of second degree dealing in depictions of a minor engaged in sexually explicit conduct under ROW 9.68A.050. He appealed, claiming the

Legal Update - 20 September 2017 plain language of the statute does not anticipate minors who take and transmit sexually explicit images of themselves.

ROW 9.68A.050 prohibits developing or disseminating sexually explicit images of minors. On its face, this prohibition extends to any person who disseminates an image of any minor, even if the minor is disseminating a self-produced image. Because the statute is unambiguous, we take it on its face and find that Gray's actions are included under the statute. We further find that the statute does not infringe Gray's First Amendment rights, nor is it unconstitutionally vague. See U.S. Const, amend. I.

Public policy arguments were made by the defendant and by the ACLU and other “friends of the Court” urging that applying this statute to sexting by juveniles would have dire consequences. The majority opinion declines to address whether the statute applies to sexting by one juvenile to another, and the majority opinion otherwise rejects the arguments by the defendant and ACLU and others that the Legislature did not intend to prohibit texting by a juvenile under any circumstances:

Both Gray and amici urge that if we determine a minor can be charged under this statute for taking and disseminating sexually explicit pictures of himself, it could have dire consequences for other minors engaging in “sexting.” They argue that the legislature never intended to criminalize teenagers consensually exchanging sexually explicit photographs, opining that doing so would be an impermissible infringement of those teenagers’ First Amendment freedom of expression.

Though both parties and amici have briefed the issue, those are not the facts before us. We understand the concern over teenagers being prosecuted for consensually sending sexually explicit pictures to each other. We also understand the worry caused by a well- meaning law failing to adapt to changing technology. But our duty is to interpret the law as written and, if unambiguous, apply its plain meaning to the facts before us. Gray’s actions fall within the statute's plain meaning. Because he was not a minor sending sexually explicit images to another consenting minor, we decline to analyze such a situation.

The statute here is unambiguous. A “person” is any person, including a minor. Images of a “minor” are images of any minor. Nothing in the statute indicates that the “person” and the “minor” are necessarily different entities. Therefore, the photographer or distributor may also be the minor in the photograph. Because of this. Gray was properly charged with taking and disseminating sexually explicit images of a minor.

The majority opinion goes on to explain the opinion’s view that the statute does not violate Free Speech protections or the constitutional Due Process protection against vague criminal statutes. That reasoning of the majority opinion on the Free Speech and Due Process issues will not be addressed in this Legal Update entry.

The dissenting opinion is authored by Justice Sheryl Gordon McCloud and joined by Justices Mary Yu and Steven Gonzalez. That opinion argues that the Legislature did not intend to punish juvenile sexters, and that the Legislature intended to protect defendant Gray from exploiting himself.

Legal Update - 21 September 2017 Result: Affirmance of Court of Appeals decision that affirmed the Spokane County Juvenile/Superior Court adjudication of Eric D. Gray as guilty of a violation of RCW 9.68A.050(2)(a).

LEGAL UPDATE EDITORIAL NOTE REGARDING THE LAW ENFORCEMENT DIGEST ENTRY ADDRESSING THIS DECISION: The Gray decision is addressed in the September 2017 LED at pages 10-11.

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WASHINGTON STATE COURT OF APPEALS

JUVENILE’S “PASSIVE” RESISTANCE TO HANDCUFFING PROCESS DURING INVESTIGATORY STOP HELD TO NOT BE OBSTRUCTING; THE THREE APPELLATE JUDGES AGREE ON RESULT BUT NOT ON REASONING; TWO OF THE THREE JUDGES TAKE VIEW THAT THERE IS NO DUTY TO COOPERATE IN AN INVESTIGATORY STOP; THE THIRD JUDGE TAKES THE VIEW THAT THERE IS A DUTY TO COOPERATE IN AN INVESTIGATORY STOP, BUT ONLY IF OFFICER HAS A REASONABLE SUSPICION FOR THE STOP

In State v. D.E.D., ___ Wn. App. ___, 402 P.3d 851 (Div. III, September 19, 2017), Division Three of the Washington Court of Appeals reverses a juvenile court obstructing adjudication. See RCW 9A.76.020 prohibiting obstructing. The prosecution was based on the juvenile’s resistance to being handcuffed during an investigatory stop. The lead opinion of the Court of Appeals describes the facts and procedural background of the case as follows:

The essential facts of the case revolve around an encounter between 17-year-old D.E.D. and [a city police officer]. The officer responded to a call from a woman complaining about a group of youths who did not belong in her neighborhood along the 500 block of South Tieton Street. Several minutes later the officer arrived in the area in his patrol car.

Instead of seeing a group of youths, the officer saw Mr. Davis walking down the middle of the street by himself. The officer did not immediately recognize Mr. Davis, but eventually recalled that he lived a few blocks away, although he could not remember the young man’s name. The youth was walking in the direction of his house.

Admittedly lacking evidence of reasonable suspicion to justify detaining the youth, [the officer] pulled up alongside in his patrol car and asked, “what's going on?” Dennis responded with profanity and accused the officer of bothering him. The youth’s body was tense with fists clenched and arms flexed tight. The officer decided to park his car and further attempt to speak to the youth.

As the officer was getting out of his car, the police dispatch advised that another caller had reported a group of kids, one of whom displayed a gun, outside his front yard. [The officer] then detained Davis while indicating that the young man was not under arrest. The officer attempted to handcuff Davis, but the younger man pulled his arm away and demanded that the officer not touch him. The officer directed Davis to put his arms behind his back, but the young man refused to comply. He attempted to stiffen his body and pull away from the officer in order to avoid being handcuffed. The officer continued to attempt to handcuff the young man in order to search for a gun. After two minutes,

Legal Update - 22 September 2017 the officer prevailed in overpowering Davis and handcuffing him. A search failed to uncover any weapons.

A charge of obstructing a public servant was filed in the juvenile division of the Yakima County Superior Court. . . . .

The [trial] court concluded that D.E.D. had hindered the officer in the course of his official duties by struggling and resisting the detention, along with attempting to kick the officer in the groin. This resistance had cost the officer several minutes of time. Accordingly, the court found that the defendant committed the crime of obstructing a public servant.

[Bolding added]

Two of the three appellate court judges sign on to a lead opinion that concludes that: (1) the juvenile only “passively” resisted being handcuffed; (2) constitutional protections allow a person to passively not cooperate in being handcuffed or in being subjected to other police actions in an investigatory stop; and (3) one cannot lawfully be punished under the obstructing statute for exercising this constitutional right to passively resist. The lead opinion contains a lengthy discussion of case law but does not cite any case that is directly on point.

No mention is made in the lead opinion of the Washington Court of Appeals decision that held that fleeing from a lawful Terry stop is “obstructing.” See State v. Hudson, 56 Wn. App. 490 (1990), nor does he address the federal court decision that held to similar effect, United States v. Williams, 837 F.3d 1016 (9th Cir., September 20, 2016). If one cannot lawfully flee from a Terry stop, where is the line that demarks where one may decline to cooperate.

Also, the lead opinion in D.E.D. does not address the trial court’s finding that the juvenile defendant’s resistance to handcuffing included “attempting to kick the officer in the groin.” A kicking at the groin does not seem to qualify as mere “passive” resistance. The concurring opinion also does not address the alleged kicking at the groin.

The third appellate judge writes a concurring opinion that disagrees with the majority judges that a person has a constitutional right to passively resist an investigatory stop. But he agrees to reversal of the conviction because, in his view: (1) the investigatory stop was not supported by reasonable suspicion; (2) the obstructing statute applies only where an officer is exercising “official powers of duties;” and (3) for purposes of the obstructing statute, an officer cannot be said to exercising “official powers or duties” in making a stop that is not supported by reasonable suspicion.

The two judges on the lead opinion counter the concurring opinion with their assertions that: (1) the record is insufficient to determine if the officer did or did not have reasonable suspicion to support an investigatory stop; and (2) an officer making an investigatory stop that is not supported by reasonable suspicion may be making an unlawful stop, but the officer is nonetheless exercising “official powers or duties” for purposes of the obstructing statute.

Result: Reversal of Yakima County Superior Court juvenile adjudication of D.E.D. of guilty of obstructing a public servant.

Status: No request for discretionary review was filed with the Washington Supreme Court, so the Court of Appeals decision is final.

Legal Update - 23 September 2017

LEGAL UPDATE EDITORIAL COMMENT: This case is a head-scratcher that could generate a lengthy law review article exploring several complex legal issues. As always, I urge officers to consult with their agency legal advisors and local prosecutors.

LEGAL UPDATE EDITORIAL NOTE REGARDING THE LAW ENFORCEMENT DIGEST ENTRY ADDRESSING THIS DECISION: The D.E.D. decision is addressed in the September 2017 LED at pages 11-12.

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ANNOUNCEMENT: THE FOLLOWING MATERIALS BY JOHN WASBERG HAVE BEEN UPDATED THROUGH JULY 1, 2017 AND ARE AVAILABLE ON THE CRIMINAL JUSTICE TRAINING COMMISSION’S INTERNET LED PAGE UNDER “SPECIAL TOPICS”

OUTLINE: “Law Enforcement Legal Update Outline: Cases On Arrest, Search, Seizure, And Other Topical Areas Of Interest to Law Enforcement Officers; Plus A Chronology Of Independent Grounds Rulings Under Article I, Section 7 Of The Washington Constitution”

OUTLINE: “Initiation of Contact Rules Under The Fifth Amendment”

ARTICLE: “Eyewitness Identification Procedures: Legal and Practical Aspects”

These documents by John Wasberg (retired Senior Counsel, Office of the Washington State Attorney General) are updated at least once a year.

Note that the first two “outlines” noted above somehow became corrupted due to a technical glitch in which flawed WORD documents became the postings instead of the intended PDF versions of the documents. The CJTC staff has fixed this. As of October 27, 2017, the correct PDF versions of the outlines were posted on the CJTC internet LED page.

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LEGAL UPDATE FOR WASHINGTON LAW ENFORCEMENT IS ON WASPC WEBSITE

Beginning with the September 2015 issue, the most recent monthly Legal Update for Washington Law Enforcement will be placed under the “LE Resources” link on the Internet Home Page of the Washington Association of Sheriffs and Police Chiefs. As new Legal Updates are issued, the current and three most recent Legal Updates will be accessible on the site. WASPC will drop the oldest each month as WASPC adds the most recent Legal Update.

In May of 2011, John Wasberg retired from the Washington State Attorney General’s Office. For over 32 years immediately prior to that retirement date, as an Assistant Attorney General and a Senior Counsel, Mr. Wasberg was either editor (1978 to 2000) or co-editor (2000 to 2011) of the Criminal Justice Training Commission’s Law Enforcement Digest. From the time of his retirement from the AGO through the fall of 2014, Mr. Wasberg was a volunteer helper in the production of the LED. That arrangement ended in the late fall of 2014 due to variety of concerns, budget constraints and friendly differences regarding the approach of the LED going forward. Among other things, Mr. Wasberg prefers (1) a more expansive treatment of the core- area (e.g., arrest, search and seizure) law enforcement decisions with more cross references to other sources and past precedents and past LED treatment of these core-area cases; and (2) a

Legal Update - 24 September 2017 broader scope of coverage in terms of the types of cases that may be of interest to law enforcement in Washington (though public disclosure decisions are unlikely to be addressed in depth in the Legal Update). For these reasons, starting with the January 2015 Legal Update, Mr. Wasberg has been presenting a monthly case law update for published decisions from Washington’s appellate courts, from the Ninth Circuit of the United States Court of Appeals, and from the United States Supreme Court.

The Legal Update does not speak for any person other than Mr. Wasberg, nor does it speak for any agency. Officers are urged to discuss issues with their agencies’ legal advisors and their local prosecutors. The Legal Update is published as a research source only and does not purport to furnish legal advice. Mr. Wasberg’s email address is [email protected]. His cell phone number is (206) 434-0200. The initial monthly Legal Update was issued for January 2015. Mr. Wasberg will electronically provide back issues on request.

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INTERNET ACCESS TO COURT RULES & DECISIONS, RCWS AND WAC RULES

The Washington Office of the Administrator for the Courts maintains a website with appellate court information, including recent court opinions by the Court of Appeals and State Supreme Court. The address is [http://www.courts.wa.gov/]. Decisions issued in the preceding 90 days may be accessed by entering search terms, and decisions issued in the preceding 14 days may be more simply accessed through a separate link clearly designated. A website at [http://legalwa.org/] includes all Washington Court of Appeals opinions, as well as Washington State Supreme Court opinions. The site also includes links to the full text of the RCW, WAC, and many Washington city and county municipal codes (the site is accessible directly at the address above or via a link on the Wa shington Courts’ website). Washington Rules of Court (including rules for appellate courts, superior courts, and courts of limited jurisdiction) are accessible via links on the Courts’ website or by going directly to [http://www.courts.wa.gov/court_rules].

Many United States Supreme Court opinions can be accessed at [http://supct.law.cornell.edu/supct/index.html]. This website contains all U.S. Supreme Court opinions issued since 1990 and many significant opinions of the Court issued before 1990. Another website for U.S. Supreme Court opinions is the Court’s own website at [http://www.supremecourt.gov/opinions/opinions.html]. Decisions of the Ninth Circuit of the U.S. Court of Appeals since September 2000 can be accessed (by date of decision or by other search mechanism) by going to the Ninth Circuit home page at [http://www.ca9.uscourts.gov/] and clicking on “Opinions.” Opinions from other U.S. circuit courts can be accessed by substituting the circuit number for “9” in this address to go to the home pages of the other circuit courts. Federal statutes are at [http://www.law.cornell.edu/uscode/].

Access to relatively current Washington state agency administrative rules (including DOL rules in Title 308 WAC, WSP equipment rules at Title 204 WAC, and State Toxicologist rules at WAC 448-15), as well as all RCW’s, is at [http://www.leg.wa.gov/legislature]. Information about bills filed since 1991 in the Washington Legislature is at the same address. Click on “Washington State Legislature,” “bill info,” “house bill information/senate bill information,” and use bill numbers to access information. Access to the “Washington State Register” for the most recent proposed WAC amendments is at this address too. In addition, a wide range of state government information can be accessed at [http://access.wa.gov]. The internet address for the

Legal Update - 25 September 2017 Criminal Justice Training Commission (CJTC) Law Enforcement Digest (LED) is [https://fortress.wa.gov/cjtc/www/led/ledpage.html].

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Legal Update - 26 September 2017