Category Archives: 9th Circuit Court of Appeals

9th Circuit Court of Appeals Bans Pot Prosecutions

9th Circuit Court of Appeals, Bellingham Defense Attorney, Drug Offenses, Legislation, marijuana, Skagit County Criminal Defense, Whatcom County Criminal Defense, , ,

In U.S. v. McIntosh, the 9th Circuit Court of Appeals banned the U.S. Department of Justice (DOJ) from prosecuting medical marijuana cases if no state laws were broken.

U.S v. McIntosh consolidated 10 pending cases in Washington in California where defendants who sold medical marijuana were indicted for violating the Controlled Substance Act. The defendants sought dismissal of their charges or to enjoin their prosecutions under the Consolidated Appropriations Act, which prohibits the DOJ from spending funds to prevent states’ implementation of their medical marijuana laws.

Although marijuana remains illegal under federal law, Congress has barred the Justice Department from spending money to prevent states from regulating the use or sale of medical pot.

Federal prosecutors argued unsuccessfully that Congress meant only to bar the department from taking legal action against states and that it could still prosecute individuals who violate federal marijuana laws. The court rejected that, saying that medical marijuana-based prosecutions prevent the states from giving full effect to their own measures Judge Diarmuid F. O’Scannlain wrote the following in his opinion:

“DOJ, without taking any legal action against the Medical Marijuana States, prevents them from implementing their laws that authorize the use, distribution, possession, or cultivation of medical marijuana by prosecuting individuals for use, distribution, possession, or cultivation of medical marijuana that is authorized by such laws . . . If the federal government prosecutes such individuals, it has prevented the state from giving practical effect to its law providing for non-prosecution of individuals who engage in the permitted conduct.”

“If DOJ wishes to continue these prosecutions, Appellants are entitled to evidentiary hearings to determine whether their conduct was completely authorized by state law, by which we mean that they strictly complied with all relevant conditions imposed by state law on the use, distribution, possession, and cultivation of medical marijuana.”

With that, the Court of Appeals remanded the case back with instructions to conduct evidentiary hearings to determine whether Appellants complied with state law.

Marijuana activists and lawyers representing medical pot suppliers say the ruling is a significant addition to the growing support for broad legalization of the drug.

“This is the beginning of the end of federal prosecutions of state medical marijuana dispensary operators, growers and patients,” said Marc Zilversmit, an attorney representing five people who operate four marijuana stores in Los Angeles and nine indoor growing sites in Los Angeles and San Francisco.

My opinion? Good decision. These days, marijuana is legal for medicinal or recreational use in 25 states and the District of Columbia. In addition, ten states have marijuana legalization measures on the November ballot. This case is a positive shift toward legalizing marijuana on a federal level.

Please contact my office if you, a friend or family member are charged with a crime. Hiring an effective and competent defense attorney is the first and best step toward justice.

Frisks & DV Investigations

42 U.S.C. § 1983, 9th Circuit Court of Appeals, Bellingham Defense Attorney, Constitutional Rights, Domestic Violence, law enforcement, Obstructing, police, Police Misconduct, Qualified Immunity, Race & Law, Search and Seizure, Whatcom County Criminal Defense, , ,

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In Thomas v. Dillard, the 9th Circuit Court of Appeals held that although the domestic violence (DV) nature of a police investigation is relevant in assessing whether a suspect is armed and dangerous, it is not alone sufficient to establish reasonable suspicion to search.

Palomar College Police Officer Christopher Dillard responded to a call to investigate a man pushing a woman in a public area on the college’s campus. There he found Correll Thomas, a student at the college who had been hanging out with and kissing his girlfriend, Amy Husky. Although Thomas was unarmed and in fact had committed no act of domestic violence, Dillard demanded Thomas submit to a search for weapons, believing police officers are free to conduct a Terry frisk whenever they are investigating a potential “domestic violence” incident, regardless of the specific circumstances of the call or the facts encountered at the scene. When Thomas refused to be searched, Dillard tased him. Thomas sued Dillard under 42 U.S.C. § 1983, asserting unlawful seizure and excessive force under the Fourth Amendment.

The 9th Circuit held that although the domestic violence nature of a police investigation is a relevant consideration in assessing whether there is reason to believe a suspect is armed and dangerous, it is not alone sufficient to establish reasonable suspicion:

“Because domestic violence encompasses too many criminal acts of varying degrees of seriousness for an officer to form reasonable suspicion a suspect is armed from that label alone, we hold domestic violence is not a crime such as bank robbery or trafficking in large quantities of drugs that is, as a general matter, likely to involve the use of weapons.”

Therefore, officer Dillard violated plaintiff’s Fourth Amendment rights against unreasonable seizure by detaining him for the purpose of performing a Terry frisk.

However, the 9th Circuit held that Dillard was entitled to protection from the lawsuit under qualified immunity because it was not clearly established at the time that the initial demand for a frisk was unlawful. The court further held that it was not clearly established at the time that continuing to detain a noncompliant domestic violence suspect for the purpose of executing a frisk and tasing him when he refused to comply were unlawful.

My opinion? On the one hand, it’s refreshing that the Court understood the 4th Amendment issues presented in this case. Forcing a Terry search is unlawful under these circumstances. However, I disagree with the court that the officer was entitled to qualified immunity.

Please contact my office if you, a friend or family member are charged with a crime. Hiring an effective and competent defense attorney is the first and best step toward justice.

Police Dog “Bite & Hold”

42 U.S.C. § 1983, 9th Circuit Court of Appeals, Bellingham Defense Attorney, Constitutional Rights, law enforcement, police, Police Dogs, Whatcom County Criminal Defense, , ,

In Lowry v. City of San Diego, the Ninth Circuit held that City of San Diego’s policy of training its police dogs to “bite and hold” individuals resulted in a violation of plaintiff’s Fourth Amendment rights.

After a night of drinking with her friends, Sara Lowry returned to her workplace and fell asleep on her office couch. She awoke a short while later and went to the bathroom, before returning to her couch and going back to sleep. Unfortunately for Lowry, during her trip to the bathroom, she accidentally triggered the building’s burglar alarm. Several officers from the San Diego Police Department (“SDPD”) responded, accompanied by a police service dog named Bak. After searching the area and giving several warnings, the officers released Bak into Lowry’s office. Bak found Lowry and pounced on her, tearing open her upper lip.

Lowry filed suit against the City of San Diego (the “City”) under 42 U.S.C. § 1983, alleging that the City’s policy of training its police dogs to “bite and hold” individuals resulted in a violation of her Fourth Amendment rights. The district court granted the City’s motion for summary judgment, concluding both that Lowry did not suffer constitutional harm and that, even if she did, the City was not liable for her injuries.

The Ninth Circuit decided that a reasonable jury could find that the police officers responding to the alarm used excessive force when they deliberately unleashed a police dog that they knew might well “rip the face off” any individual who might be present in the office. They also decided that the force used was excessive and that the City was liable.

The Court reasoned that the SDPD trains its police dogs to enter a building, find a person, bite them, and hold that bite until a police officer arrives and removes the dog. However, police dogs are not trained to differentiate between “a young child asleep or . . . a burglar standing in the kitchen with a butcher knife,” and will simply bite the first person they find.

Generally, the decision of whether to conduct a canine search on or off its leash is left to the officer’s discretion. However, the SDPD’s Canine Unit Operations Manual provides that residential searches “should normally be conducted on-lead unless the handler can reasonably determine there are no residents or animals in the home.”

The Court further reasoned that objectively unreasonable uses of force violate the Fourth Amendment’s guarantee against unreasonable seizures. Our excessive force analysis under Graham v. Connor involves three steps. First, we must assess the severity of the intrusion on the individual’s Fourth Amendment rights by evaluating the type and amount of force inflicted. Second, we evaluate the government’s interest in the use of force. Finally, we balance the gravity of the intrusion on the individual against the government’s need for that intrusion.

Here, under these circumstances, the Ninth Circuit found that a reasonable juror could conclude that releasing Bak into the suite posed a high risk of severe harm to any individual present.  Additionally, the officers would not have been justified in believing that Lowry posed a threat to their safety or to others. Throughout the entire encounter, until she was bitten by Bak, Lowry remained fast asleep on the couch. Lowry did not engage in any threatening behavior, nor do anything other than lie quietly before she was bit in the face. Finally, a non-residential burglary is not an inherently dangerous crime, and the fact that an unarmed suspect has broken into a dwelling at night does not automatically mean she is physically dangerous.

Given that there is no dispute that the City’s “bite and hold policy” was the moving force behind Lowry’s constitutional injuries, the City was not entitled to dismissal under summary judgment. With that, the Ninth Circuit reversed and remanded this case for further proceedings.

Good decision.

Please contact my office if you, a friend or family member are charged with a crime. Hiring an effective and competent defense attorney is the first and best step toward justice.

Wrongful Incarceration

42 U.S.C. § 1983, 9th Circuit Court of Appeals, Bellingham Defense Attorney, Constitutional Rights, DUI, Jail, Misidentification, Qualified Immunity, Whatcom County Criminal Defense, , ,

In Garcia v. County of Riverside, the 9th Circuit Court of Appeals held that an individual’s lawsuit against police may proceed when the jail did not engage in readily available identity checks to ensure that they were not detaining the wrong person.

Plaintiff was arrested for DUI in Riverside County, California, on November 26, 2012. He was booked in a Riverside County jail. A booked individual is electronically fingerprinted through a system called “Livescan.” The Livescan image is then sent to the California Department of Justice.

When Riverside County Sheriff’s Department (RCSD) officers searched for Plaintiff “Mario Garcia,” they found a felony warrant for Mario L. Garcia issued by the Los Angeles Superior Court in 1994. The warrant described Mario L. Garcia using only his first and last name, date of birth, height, and weight. The first and last name and birth date matched Plaintiff’s own. However, the authorities did not forward information on Mario L. Garcia’s biometric identifiers, middle name, or criminal record, all of which were different from Plaintiff’s.

AS a result, RCSD matched Plaintiff to the warrant and told him that he would be detained, despite Plaintiff’s protests that he was not Mario L. Garcia and that he had been mistakenly detained before based on the same warrant.

The next day Plaintiff was transferred to an LA County jail, where he alleges that he repeated his complaints to LASD officers. Plaintiff contends that LASD knew or should have known that he was not Mario L. Garcia for several reasons: (1) their middle names do not match; (2) their height and weight differ considerably (Mario L. Garcia is listed as 5’1″, 130 lbs. Plaintiff is 5’10”, 170 lbs.); (3) Plaintiff’s biometric identifiers, including fingerprints and CII number, did not match the subject’s; and (4) Plaintiff’s criminal history, which was linked in the system to his fingerprints, did not match the subject’s.

Plaintiff sued under 42 U.S.C. § 1983, alleging violations of the Fourth Amendment and Fourteenth Amendment by LASD, LA County, and several other defendants. He also brought state-law claims against LASD and LA County. He claimed that it is the policy of LASD to ignore identification processes, to ignore prisoners’ complaints of misidentification, and to accept an outside agency’s determination that an arrestee is the subject of a warrant rather than conduct an independent identity check upon booking in LA County.

The LASD and LA County’s defense was “Qualified Immunity.”

For those who don’t know, “Qualified Immunity” protects government officials from lawsuits alleging that they violated plaintiffs’ rights, only allowing suits where officials violated a “clearly established” statutory or constitutional right. When determining whether or not a right was “clearly established,” courts consider whether a hypothetical reasonable official would have known that the defendant’s conduct violated the plaintiff’s rights. Courts conducting this analysis apply the law that was in force at the time of the alleged violation, not the law in effect when the court considers the case.

The “Qualified immunity balances two important interests—the need to hold public officials accountable when they exercise power irresponsibly and the need to shield officials from harassment, distraction, and liability when they perform their duties reasonably.”

Here, the 9th Circuit decided that law enforcement’s failed to investigate his claim of mistaken identity after he was arrested. There was an obvious physical discrepancy between the warrant subject and Mr. Garcia, the most obvious which consisted of a nine-inch difference in height. That, accompanied by a detainee’s complaints of misidentification, should prompt officers to engage in readily available and resource-efficient identity checks, such as a fingerprint comparison, to ensure that they are not detaining the wrong person.

My opinion? Excellent decision. Civil rights violations do not always involve incidents of police shootings or beatings. Wrongful incarceration is covered, too. I’m happy the 9th Circuit understands this.

Please contact my office if you, a friend or family member are charged with a crime. Hiring an effective and competent defense attorney is the first and best step toward justice.