<![CDATA[California Police Brutality Lawyers - Justice Beat Blog]]>Thu, 30 Nov 2017 06:15:51 -0800Weebly<![CDATA[DOJ's Civil Rights Division's Interactive Guide to Police Reforms Demonstrates Why DOJ Is So Important in Promoting Police Accountability and Eradicating Systemic Injustice in Los Angeles and Across the Nation]]>Fri, 20 Jan 2017 20:13:05 GMThttp://californiapolicebrutalitylawyers.com/justice-beat-blog/dojs-civil-rights-divisions-interactive-guide-to-police-reforms-demonstrates-why-doj-is-so-important-in-promoting-police-accountability-and-eradicating-systemic-injustice-in-los-angeles-and-across-the-nationPicture
Why does it matter whether the person who runs the Department of Justice takes a proactive approach to police accountability and the eradication of systemic injustice?  The reason is because the DOJ has unique powers in the police reform arena and is able (if willing) to step into local law enforcement situations where widespread police abuse and systemic injustice is occurring and do something to stop it through use of "pattern or practice" investigations and consent decrees.  

When it comes to federal civil rights enforcement, the DOJ’s Civil Rights Division has the power to institute far-reaching investigations into local police departments to determine whether they are operating with a “pattern or practice” of depriving citizens of their constitutional rights by engaging in unconstitutional acts like excessive force and racial profiling.  The law was passed after the 1993 beating of Rodney King.
 
When the DOJ finds a pattern or practice of widespread constitutional violations and systemic injustice, the DOJ can compel the offending departments to make needed police reforms through "consent decrees" subject to federal court oversight.
 
The DOJ has so far opened over 20 investigations into police agencies around the country.  In California, the DOJ opened such investigations against both the Los Angeles  County Sheriff's Department-Antelope Valley and the Los Angeles Police Department. 

The consent decree with the Los Angeles Sheriff's Department-Antelope Valley was entered into to deal with an identified pattern or practice of harassment and profiling of people of color in the Antelope Valley.  The consent decree with the Los Angeles Police Department, which has now been concluded, was entered into to deal with an identified pattern or practice of excessive force and unlawful stops, searches and arrests linked to inadequate training, supervision, and accountability systems.
 
There is also an ongoing DOJ investigation involving the Orange County Sheriff’s Department.

Please visit the DOJ's Civil Rights Division's Interactive Guide to Police Reforms for more information about consent decrees targeting police agencies in Los Angeles and throughout the country.

For more information about systemic injustice and police brutality,  please visit our page on Systemic Injustice.

To read blogs about the many ways in which systemic injustice manifests itself in the realm of policing and criminal justice, please see our systemic injustice blog topics.


]]>
<![CDATA[San Bernardino County Sheriff's Deputy Arrested for Having Sex With Teenager Explorer; Not the First Incident of its Kind]]>Tue, 03 Jan 2017 20:26:01 GMThttp://californiapolicebrutalitylawyers.com/justice-beat-blog/san-bernardino-county-sheriffs-deputy-arrested-for-having-sex-with-teenager-explorer-not-the-first-incident-of-its-kind
Sexual assault perpetrated by police officers continues to occur in San Bernardino and throughout California.  Often the victims are vulnerable for one reason or another, whether because they are stopped late at night for a possible DUI, or because they are inmates, or because they are teenage Explorers participating in a scouts program with uniformed officers.  Thankfully, prosecutors are beginninhg to take cases involving sexual assault police brutality with the seriousness they deserve.

The recent arrest of San Bernardino County sheriff's deputy David Ceballoson is a case in point.  Ceballoson, a San Bernardino sheriff's deputy assigned to the Fontana station, was arrested on charges that he had an unlawful sexual relationship with a teenage member of the San Bernardino County Sheriff Department's Explorer program.  The Explorer program is designed to give teenagers a glimpse at law enforcement activity; it is not a venue for sheriff's deputies to manipulate or coerce teenagers into having sexual relations.

This is not the first incident in which a San Bernardino County sheriff's deputy has been  criminally charged for having sex with a teenage Explorer.  In 2014, former sheriff’s deputy Nathan Gastineau was sentenced to nearly 14 years in prison for having sex with a teenage Explorer and possessing child pornography.  Gastineau worked out of the Highland station.

As is the case with sexual assualts generally (and incidents of police brutality), victims are far too often silenced and denied a full measure of justice because prosecutors are reluctant to charge perpetrators.  But criminal accountability is a critical component in helping victims of sexual assualt (and victims of police brutality) secure justice.  Having aggressors criminally charged, prosecuted and convicted helps victims move on with their lives and it also helps deter future criminal activity by potential abusers.

For more information about sexual abuse and sexual assaults by police officers -- and the potential for victims to bring civil rights cases against abusers -- please see our page Sexual Assault Police Brutality

]]>
<![CDATA[California Continues to Lead Nation in Police Shootings and Other Police Killings]]>Mon, 26 Dec 2016 18:55:08 GMThttp://californiapolicebrutalitylawyers.com/justice-beat-blog/california-continues-to-lead-nation-in-police-shootings-and-other-police-killingsPicture
In 2016, California again led the nation for total number of deaths by police shootings and other means of police killings, including by tasers and "deaths in custody."

According to the Guardian's police shooting and police killing database, the Counted, there were 1054 police killings in 2016 across the nation.  Of those, California had the highest number, at 156.  Of the California victims, 140 were killed by gunshot, 2 by taser, 2 by being struck by a vehicle, and 12 were classified as deaths in custody.

The Wahsington Post is another source that compiles data of police killings.  The Washington Post's Fatal Force data is different, but the tally still places California as the state with the highest number of fatal encounters with police officers.  According to the Post, there were 940 police killings nationwide.  California had the highest number, at 135, of which at least 29 victims were mentally ill or suffering from mental illness.

It is difficult to get accurate statistics on police killings because historically the reporting of such data has been voluntary.  However, both federal and state inititaives are curently underway to remedy this and make reporting of police killings mandatory.  Among the official efforts are the federal Death in Custody Reporting Act of 2013 and California's new Open Justice website

For more information aboout police shootings in California, please see our page Police Shootings

For more information on police shootings of people suffering from mental illness, please see our page Police Shootings and mental Illness.

]]>
<![CDATA[Ninth Circuit Reverses Grant of Summary Judgment in Newmaker v. City of Fortuna -- Another California Police Shooting Case Involving Officer Credibility]]>Thu, 24 Nov 2016 21:25:09 GMThttp://californiapolicebrutalitylawyers.com/justice-beat-blog/ninth-circuit-reverses-grant-of-summary-judgment-in-newmaker-v-city-of-fortuna-another-california-police-shooting-case-involving-officer-credibilityPicture
Not every police shooting is caught on video and not every police officer who unjustifiably shoots and kills someone tells the truth about what happened.  This is what appears to have occurred in the California police shooting case of Newmaker v. City of Fortuna.  The district court granted summary judgment based on the shooting officer's account, but the Ninth Circuit reversed so that the case  can go to a jury to decide whether the officer's story is credible and whether the shooting was justified.

Newmaker v. City of Fortuna is one of a line of cases issued by the Ninth Circuit holding that a jury should decide the constitutionality of police shootings when the only surviving witness to the shooting is the officer who did the shooting (and his or her fellow officers) and when that officer's account is contradicted by circumstantial evidence (such as forensics). 

“Deadly force cases pose a particularly difficult problem...because the officer defendant is often the only surviving eyewitness,” the Ninth Circuit held in the 1994 case of Scott v. Henrich.  “Therefore, the judge must ensure that the officer is not taking advantage of the fact that the witness most likely to contradict his story—the person shot dead—is unable to testify....the court may not simply accept what may be a self-serving account by the police officer.  It must also look at the circumstantial evidence that, if believed, would tend to discredit the police officer's story, and consider whether this evidence could convince a rational factfinder that the officer acted unreasonably.” 

The Ninth Circuit recently reaffirmed this principle in Newmaker v. City of Fortuna.  The case arose after an officer fatally shot Mr. Newmaker during an arrest in Northern California.  The shooting officer claimed that he shot Mr. Newmaker because Mr. Newmaker grabbed his baton and was swinging it at another officer on the scene.   There were no witnesses to the actual police shooting except the two officers.  (Note that a dash cam video captured the beginning of the altercation, but the officers dragged Mr. Newmaker behind a car and out of dash cam range at the end of the altercation, so the actual shooting was not recorded.)

The trial judge dismissed the case based on the officers' account.  But the Ninth Circuit reversed -- finding other evidence that contradicted the officers’ account and called into question the officers' version of events.  Among the contradictory evidence was an autopsy report that showed bullet trajectories that contradicted the officers' story about whether Mr. Newmaker was standing up or lying on the ground when he was shot and the fact that the officers' testimony changed over time and appeared to have been coached. 

The Ninth Circuit held:  "Because this case 'requires a jury to sift through disputed factual contentions' — including whether the officers were telling the truth about when, why, and how Soeth shot Newmaker — summary judgment was inappropriate.”

For more information about the law that applies to police shootings, please see our page on Police Shootings in California.

Please also see our blog topics on the Ninth Circuit and police shootings.


]]>
<![CDATA[Mentally Ill and Mentally Distraught Victims Lose Lives to Police Brutality Yet Again in Sacramento and El Cajon California; Proper De-Escalation Tactics Might Have Saved Both Lives]]>Tue, 04 Oct 2016 17:08:04 GMThttp://californiapolicebrutalitylawyers.com/justice-beat-blog/mentally-ill-and-mentally-distraught-victims-lose-lives-to-police-brutality-yet-again-in-sacramento-and-el-cajon-california-proper-de-escalation-tactics-might-have-saved-both-lives

Mentally ill and mentally distraught individuals continue to suffer a disproportionate amount of police brutality.  In the past few months, police officers in Sacramento, California literally used their police car to run down a mentally ill homeless man.  They then proceeded to shoot him dead with fourteen bullets. 

The victim -- Joseph Mann -- was armed with a knife but, as the video clearly shows, he was desperately trying to get away from the officers who were using crazed and unconstitutional tactics to terrorize and kill him.

A more recent police shooting of a mentally distraught man happened in El Cajon, California.  The victim -- Alfred Olango -- was acting erratically in a parking lot.  Mr. Olango was not mentally ill, but he was grief-stricken and mentally distraught as a result of the death of a friend.  He pulled out a vaping device when confronted by police and was dead by police shooting within a minute. 

Among the criticism surrounding the El Cajon police shooting of Alfred Olango was the failure of the shooting officer to engage in appropriate de-escalation tactics.  De-escalation is important in all potentially fatal police encounters, but especially so in cases of mentally ill or mentally distraught individuals, who are acting erratically not because they intend harm but because they are not thinking clearly or understanding what is going on.  They need help and the chance for the encounter to end with everyone staying alive as opposed to getting run down with police cars and getting shot dead.

Interestingly, in the case of both Joseph Mann and Alfred Olango, there appears to have been two sets of officers on scene -- one set that used prudent and constitutional policing while the other set did not.  The original officers on the scene in the Sacramento case wisely opted not to run down or shoot the victim (this was all captured on dash cam audio).  In the El Cajon case, another officer on scene deployed his taser instead of his gun.

Lives were lost in both cases, of course, because of the irresponsible actions taken by the second set of officers.
 
Both victims were African American as well as being either mentally ill or mentally distraught.

For a more in-depth understanding of the problem of police brutality and mental illness, as well as the law that applies to it, please see our webpage Police Brutality and Mental Illness.

For more information on de-escalation, please see our blog topics on de-escalation.
]]>
<![CDATA[In Latest California Police Shooting Case to be Reviewed by the Ninth Circuit, Ninth Circuit Panel Cites Police Officer's Immediate Escalation to Deadly Force as Factor in Finding Fourth Amendment Violation Under Graham v. Connor]]>Sat, 17 Sep 2016 20:47:25 GMThttp://californiapolicebrutalitylawyers.com/justice-beat-blog/in-latest-california-police-shooting-case-to-be-reviewed-by-the-ninth-circuit-ninth-circuit-panel-cites-police-officers-immediate-escalation-to-deadly-force-as-factor-in-finding-fourth-amendment-violation-under-graham-v-connor
It took the Ninth Circuit less than 15 pages to find for the victim in the latest California police shooting case of A.K.H. v. City of Tustin.  Of critical note, the Ninth Circuit cited the officer's immediate escalation to deadly force in its Fourth Amendment analysis. 

The case of A.K.H. v. City of Tustin arose after a domestic violence call.  The police officer in the case rolled up beside the victim, Benny Herrera, who happened to be walking down the street with one hand in his pocket.  The officer demanded that Mr. Herrera take his hand out of his pocket.  Less than a second later, as Mr. Herrera was pulling his hand out of his pocket, the police officer shot and killed him. 

Mr. Herrera was unarmed and the shooting officer had no reason to believe otherwise, given that the dispatch call had informed the officers that Mr. Herrera was not known to carry weapons.  Moreover, the officer did not give any warning before he shot Mr. Herrera.

The Ninth Circuit went through the Graham v. Connor balancing test used in excessive force and police shooting cases and found that the plaintiffs had made out a case for unconstitutional force.  The panel found that the severity of the force used was unjustified given the crime at issue was in fact over by the time the officer got involved.  The Ninth Circuit also noted that Mr. Herrera posed no immediate threat to anyone -- he was merely walking down the street and was not known to be armed -- and was not trying to flee the scene or evade arrest in any material way that would give the government a compelling reason to shoot him. 

Critically, the Ninth Circuit also cited the officer's immediate escalation to deadly force in its Graham v. Connor Fourth Amendment analysis.  This is an extremely noteworthy and timely observation, given the recognition by almost all observers of police violence that we must require far more earnest de-escalation tactics of our police officers if we truly want to reduce unnecessary police shootings and save lives.

"Finally, and perhaps most important," the Ninth Circuit wrote, "Officer Villarreal
escalated to deadly force very quickly. Villarreal commanded Herrera to take his hand out of his pocket immediately upon driving up beside him.  Villarreal then shot
Herrera just as he was taking his hand out of his pocket.  Less than a second elapsed between Villarreal commanding Herrera to take his hand from his pocket and Villarreal shooting him."

The officer also raised a qualified immunity argument, which the panel dispensed with quite simply.  The panel found that the officer was not entitled to qualified immunity for the shooting, as the officer violated Mr. Herrera's Fourth Amendment rights and did so in a manner that violated clearly established law.  The Ninth Circuit quoted the seminal 1985 deadly force case of Tennessee v. Garner and explained that:  "It has long been clear that '[a] police officer may not seize an unarmed, nondangerous suspect by shooting him dead.'"

But how many more police shootings victims need to die before Tennessee v. Garner (which was issued over 30 years ago) becomes the law of the streets as well as the law of the land?
]]>
<![CDATA[Plaintiff Received Unfair Trial in Police Shooting Case of Estate of Diaz v. City of Anaheim Due to Irrelevant, Inflammatory and Prejudicial Evidence; Ninth Circuit Reverses and Remands for a New (Fair) Trial]]>Sun, 11 Sep 2016 16:53:41 GMThttp://californiapolicebrutalitylawyers.com/justice-beat-blog/plaintiff-received-unfair-trial-in-police-shooting-case-of-estate-of-diaz-v-city-of-anaheim-due-to-admission-of-irrelevant-inflammatory-and-prejudicial-evidence-ninth-circuit-reverses-and-remands-for-a-new-fair-trial
In 2012, unarmed police shooting victim Manual Diaz was gunned down and killed by an Anaheim police officer after a foot pursuit.  The family of Manual Diaz sued to get justice for the wrongful and unconstitutional police shooting death, but justice was denied. 

The problem was that the trial judge made all sorts of bad rulings and admitted (or let the jury hear about) a host of irrelevant, prejudicial, and inflammatory evidence on things like gangs, drugs, and weapons that had no bearing whatsoever on the reasonableness of the shooting.  Swayed by this irrelevant evidence, the jury deliberated for less than two hours before finding the officer not liable for killing Manual Diaz.  

The family of Manual Diaz appealed and recently won their appeal at the Ninth Circuit level.  The Ninth Circuit held that the trial court in Estate of Diaz v. City of Anaheim abused its discretion in making certain rulings and in allowing the jury to hear about prejudicial and irrelevant evidence.  Among the troubling evidence was testimony by a "gang expert," photographs of Manual Diaz "throwing" gang signs, photographs of Manual Diaz with weapons, and evidence of drug use. 

The Ninth Circuit held that such alleged evidence was not relevant to the central issue of liability -- whether or not the shooting was reasonable under the circumstances in light of excessive force law.  To the extent that some such evidence may have had a bearing on another aspect of the case (such as damages), the judge did not take appropriate measures to limit the evidence for those purposes -- and thus to keep it from irreparably tainting the jury's verdict on liability. 

For example, the Ninth Circuit explained that the judge should have bifurcated the trial to allow certain evidence in the liability phase and other evidence in the damages phase.  "Considering that the parties and district court had repeated trouble tracking precisely why this prejudicial evidence was admissible for any purpose, no jury could properly compartmentalize it," the court held.  "Even assuming that a portion of this evidence had some relevance to damages, it never should have been combined with the liability phase."

In its order sending Estate of Diaz v. City of Anaheim back to the district court for a new trial, the Ninth Circuit gave the district court "guidance" for what to do the second time around.  The guidance included closely reviewing evidence under Federal Rules of Evidence 401 and 403 for relevance and prejudice, consider dealing with the "gang" issue through stipulation, reconsider the efficacy of "limiting instructions," and take better care in handling "stricken" evidence.

Federal Rule of Evidence 401 provides:

Evidence is relevant if: (a) it has any tendency to make a fact more or less probable than it would be without the evidence; and (b) the fact is of consequence in determining the action.

Federal Rule of Evidence 403 provides:

The court may exclude relevant evidence if its probative value is substantially outweighed by a danger of one or more of the following: unfair prejudice, confusing the issues, misleading the jury, undue delay, wasting time, or needlessly presenting cumulative evidence.
]]>
<![CDATA[Massive Oakland Police Sex Scandal and Other Police Officer Sexual Assaults Lead to Criminal Charges Against Perpetrators and Hopefully Justice for Victims]]>Sat, 10 Sep 2016 20:37:07 GMThttp://californiapolicebrutalitylawyers.com/justice-beat-blog/massive-oakland-police-sex-scandal-and-other-police-officer-sexual-assaults-lead-to-criminal-charges-against-perpetrators-and-hopefully-justice-for-victimsPicture
The topic of police officer sexual assaults has not gotten the attention it -- or its victims -- deserve.  But that may be changing, with the recent criminal sex charge indictments of seven Oakland and Bay Area police officers as well as multiple other law enforcement officers in the neighboring counties of San Francisco, Contra Costa, and San Joaquin.  The charges in the Oakland police sex scandal stem from a host of police officer sexual assaults and other crimes committed by officers against a young woman, including while she was a minor.

The investigation into the Oakland police sex scandal is ongoing and unfolding, but so far the charges include felony oral copulation with a minor, engaging in lewd acts, obstruction of justice, prostitution, and conducting unauthorized searches of a criminal justice data and computer system.

The victim in the Oakland police sex scandal alleges she had sex with about 30 law enforcement officials, including before she turned 18-years-old.  Sometimes she traded sex so she would not get arrested or so that she would get a tip-off as to prostitution stings.  The victim is now undergoing rehabilitation.

In another egregious case of police officer sexual assault and power abuse, a San Mateo police officer has been charged with multiple counts of rape, including involving a 17-year-old girl.  The officer faces 22 felony sexual assault charges including kidnapping with intent to commit rape, rape, sexual penetration and oral copulation under color of authority, sexual battery, criminal threats and forcible sex.  He is in jail on on $3.1 million bail.  

In the past few years, police shootings and other forms of police brutality have received the majority of media attention.  But power abuse by police officers comes in many forms.  As is being done in connection with the police officer sexual assaults against the victim in Oakland and the victims in San Mateo, we must put a priority on acknowledging that police officer sexual assault, misconduct, and rape exists and is a very real problem in our justice system and communities.  We need to do what we can to stop it.  

Officers must be criminally prosecuted and, moreover, victims should have access to the civil court system where they can tell their stories, have their rights vindicated, and secure the compensation they need to heal and get on with their lives.  No officer, no chief, no agency, no judge, no prosecutor, no jury, and no citizen can look the other way in these kinds of police officer sexual assault cases.


]]>
<![CDATA[Harvard Law Professor Calls for Implicit Racial Bias Training as Means of Reducing Police Shootings; Time is of the Essence to Move Towards Reverence for Human Life Mindset]]>Tue, 12 Jul 2016 16:43:19 GMThttp://californiapolicebrutalitylawyers.com/justice-beat-blog/harvard-law-professor-calls-for-implicit-racial-bias-training-as-means-of-reducing-police-shootings-plaguing-american-cities-time-is-of-the-essence-to-move-towards-reverence-for-human-life-mindset
After last week's violence -- police shootings of African-American men in Louisiana and Minnesota, the police shooting of an unarmed white man in California, and the sniper shooting of five police officers in Dallas -- nobody can possibly claim a grave problem does not exist in connection with America's policing.

Activists and experts of all persuasions are weighing in.  There are calls for increased empathy, community policing, training in de-escalation tactics, systemic changes to the criminal justice system, increased accountability for officers who shoot people without justification, and increased attention to the marginalized conditions in which many people of color live in American's cities.   Each of these efforts promises to help reduce the number of deadly police shootings and also improve the morale and lives of countless people.

Harvard Law Professor Ron Sullivan -- an expert in both critical race theory and criminal law -- maintains that no solution to the problem of the racially disproportionate police shootings can occur without society taking an honest look at the legacy of slavery and without taking proactive, honest efforts to address the bias and implicit bias that lingers in all of our institutions, including policing. 

In a Q&A in Harvard Law Today, Professor Ron Sullivan explains that:  "And the difficulty thus far has been the intransigence of police officers, of law enforcement, to even admit that they treat white citizens preferentially and citizens of color unequally.  Once that admission is made, then and only then can meaningful change produce the sort of fruits that some of these policy changes should produce."

Fundamentally, as all the commentators recognize, there is something very wrong with the mindset of policing.  Somehow policing has become too militarized, too reactionary, too apathetic, and too adversarial -- especially as regards to people and communities of color.  There is clearly something very wrong when whole parts of our country feel literally under siege by the police as an occupying army and when people die after routine traffic stops.

There may not be any miracle solutions, but we can begin by taking an honest look at the problem (like Professor Sullivan suggests) and then attempting to shift the mindset of policing in the direction of compassion, empathy, and reverence for human life by drawing upon all the recommended approaches -- including bias and implicit bias training, de-escalation tactics, community policing, and adherence to the rule of law through criminal increased accountability for officers.  

We are all in this together -- the guardians and the guarded, the people who are served and protected and those who do the serving and protecting.  Every effort that moves the dial in the direction of collectivity and reverence for human life is going to be a positive development in policing.

In many respects, the issue of police violence and the breakdown of trust between the police and the communities they serve is the civil rights issue of the day.  The alarm bell has been sounded and the evidence has been submitted in gritty real-time footage.  Time is of the essence to address this societal dilemma that is costing so many lives.  If not now, when?

]]>
<![CDATA[Ninth Circuit Paves Way for Greater Accountability in Prosecutor Misconduct Cases Involving False Statements and Broken Plea Deals]]>Wed, 06 Jul 2016 23:52:42 GMThttp://californiapolicebrutalitylawyers.com/justice-beat-blog/ninth-circuit-paves-way-for-greater-accountability-in-prosecutor-misconduct-cases-involving-false-statements-and-broken-plea-dealsPicture
Two recent Ninth Circuit opinions highlight the continued existence of prosecutor misconduct in California as well as the Ninth Circuit's willingness to take a stand against it.   In one case, a Los Angeles prosecutor made a false statement in a sworn declaration attached to a subpoena.  In the other case, a San Diego prosecutor reneged on a plea deal, resulting in the imposition of an indeterminate life sentence as opposed to the bargained-for sentence of 14 years and 4 months.

The case of Garmon v. County of Los Angeles arose as a result of a false statement made by a Los Angeles County Deputy District Attorney in connection with a subpoena issued for medical records.  The criminal defendant the prosecutor was prosecuting was on trial for murder, and his mother (the plaintiff in Garmon v. County of Los Angeles)  was an alibi witness for her son.  The mother, Ms. Detrice Garmon, had to have surgery for a brain tumor prior to the trial and in that connection gave consent to have the hospital release to the prosecutor records pertaining to that brain tumor. 

However, the prosecutor went ahead and issued a subpoena for all of Ms. Garmon's medical records, falsely indicating on the declaration attached to the subpoena that Ms. Garmon was the victim in the murder case as opposed to a witness.  This misleading statement, made under penalty of perjury, enabled the prosecutor to circumvent HIPPA privacy rules and obtain all of Ms. Garmon's medical records.  Then, at trial, the prosecutor proceeded to use all that medical information (which was beyond the scope of what Ms. Garmon had consented to and which was obtained under false pretenses made under penalty of perjury)  to impeach Ms. Garmon. 

Ms. Garmon's son was convicted and Ms. Garmon filed a Section 1983 civil rights lawsuit against the prosecutor, the prosecutor's supervisor and the County of Los Angeles.

The district court dismissed Ms. Garmon's case.  Ms. Garmon persevered and appealed her case to the Ninth Circuit, which reversed the district court's ruling and resurrected Ms. Garmon's civil rights case. 

The Ninth Circuit's ruling involves many technical legal points, but among the important aspects is that the Ninth Circuit determined that neither the prosecutor who made the false statement nor her supervisor enjoyed absolute immunity for making the false statement in the declaration attached to the subpoena (although both enjoyed absolute immunity for issuing the subpoena itself). 

The doctrines of absolute immunity and qualified immunity for prosecutors are difficult hurdles for plaintiff's to overcome, and holdings in cases such as Garmon v. County of Los Angeles (as well as in another recent Ninth Circuit case, Goldstein v. City of Long Beach, addressing prosecutor immunity in connection with a wrongful conviction obtained through perjured testimony by a jailhouse snitch) indicate a shift in towards more justice for those wronged by California prosecutors.

The other recent Ninth Circuit case, Cuero v. Cate, arose in the context of a writ of habeas corpus.  The case was filed by inmate Michael Cuero after a San Diego prosecutor reneged on a plea deal with him.  Before he was sentenced to prison, Mr. Cuero had entered into a plea deal in open court during which he agreed to plead guilty to two felonies and one prior strike in exchange for the prosecutor dismissing another charge and ensuring that he would receive a sentence of not longer than 14 years and 4 months. 

But that is not what ended up happening.  Instead, the day before Mr. Cuero was scheduled to be sentenced to the prison term for which he had bargained in his plea deal, the prosecutor simply "amended" the complaint to add another prior strike, which brought Mr. Cuero's exposure to 64 years to life.  The judge sat by and let the prosecutor renege on his deal with Mr. Cuero, who  ended up with a sentence of 25 years to life. 

Like Ms. Garmon, Mr. Cuero did not just shake his head and forget about what happened.  He appealed his case all the way to the Ninth Circuit...and won! 

The court in Cuero v. Cate granted habeas relief -- finding that the judge's decision to allow this post-plea amendment was contrary to clearly established federal law in violation of Mr. Cuero's due process rights.  The Ninth Circuit instructed the district court to issue a conditional writ requiring the prosecutor  to resentence Mr. Cuero in accordance with his original plea deal.

Plaintiffs like Detrice Garmon and inmates like Michael Cuero face significant obstacles when they try to hold prosecutors accountable for prosecutor misconduct and for outright underhanded arrogance that has no place in our justice system.  The rulings in Garmon v. County of Los Angeles and Cuero v. Cate help remove some of those obstacles and pave the way for a more fair legal system in which prosecutors are bound by the rule of law like everyone else.   



]]>