The Sergeant's Taser Trophy, and What It Says About Excessive Force

A San Diego Sheriff’s Sergeant who received a bizarre “trophy” for deploying his taser 25 times has resigned while under investigation for creating a hostile work environment for his colleagues, the San Diego Union reported yesterday. The newspaper quotes University of South Carolina law Professor Seth Stoughton, who points out that giving such a trophy for using force repeatedly “explicitly communicates that an officer’s use of force is something to be celebrated rather than avoided to the extent it is possible to do so.”

The taser “trophy” received by the sergeant. Photo by San Diego Union-Tribune.

Fierro v. Smith: Deference to Prison Officials in Eighth Amendment Claims

A jury should not be instructed on the need to defer to prison officials’ decisions regarding the administration of prisons, in cases raising Eighth Amendment claims, unless the treatment that is at issue (1) was provided pursuant to a security-based policy or practice, and, if so, (2) was a necessary, justified, and non-exaggerated response to security needs. That point is reiterated in the Ninth Circuit’s opinion in Fierro v. Smith (19-16786), filed yesterday, where Arizona prison officials repeatedly disregarded an inmate’s request to be put in protective custody before the inmate was attacked by gang members. Fierro brought a claim under 42 U.S.C. § 1983 against the correctional officers who failed to respond to his requests to be housed safely.

In Fierro, the Ninth Circuit concluded, there were genuine factual disputes as to both of the two prongs of the analysis, and the jury should therefore have been given, at most, an instruction saying it was their choice whether to defer to prison officials’ judgment. In a footnote, the Ninth Circuit panel points out that even a “jury’s choice”-type instruction “could risk confusion without much added benefit,” which seems like a charitable way of putting it.

Can a Civil Rights Case With Low Damages Succeed?

A “nominal damages” civil rights case is a case where there is no obvious economic impact to the plaintiff, or only a very small economic impact. Sometimes these cases are suits for $1, or some other small figure, and sometimes such suits seek more money but recover only a symbolic $1 verdict.

Can nominal damages civil rights cases succeed? The answer is a qualified “yes,” depending on what you are trying to accomplish. If your goal is to make lots of money, obviously such a case is not going to do that for you. However, if a plaintiff is passionate about standing up for particular principles, and if those principles may resonate with other people, such a case might have legs. The federal civil rights statute provides for attorney fees even in nominal damages cases, so there can be an incentive for a lawyer to assist with such a case even if there is no big payout contemplated for the person bringing the suit.

There are some basic pragmatic issues to consider. One of the most important is simply that the plaintiff’s leverage in litigation is the threat of going to trial. So if the asserted violation of a right is so minor or trivial that it would be ridiculous to ask a jury of regular people to spend days of their own time stuck in a courtroom resolving the issue, then it probably doesn’t make sense to file that suit in the first place.

For example, consider a brief police detention that, though technically not supported by adequate legal grounds, quickly resolves with the police moving on and letting the detained person go about their business. Yes, this is probably an example of a Fourth Amendment violation. But it’s probably not a good case to pursue absent other facts (such as a discriminatory motive, repeated harassment, etc.), because no defendant will ever agree to settle the case, and if the case ever went to a jury, that jury would most likely be very annoyed at the plaintiff for having wasted their time with the matter. Why should these jurors be forced to sit for days and days in a courthouse to figure out if you were merely inconvenienced for a few minutes?

For that matter, the plaintiff also has to understand that civil rights litigation can be a slow, tedious, and time-consuming process, one that can take years to work through the system and require a considerable amount of work on the plaintiff’s part. It’s probably not worth it, from the potential plaintiff’s perspective, to go through all that aggravation to make a point about some purely technical violation of a legal standard.

With this in mind, a more promising type of “nominal damage” case is one in which the symbolic significance of the violation is high, even if the economic impact is low. Violations that touch on basic political values of our society, such as the right to peacefully protest, the right to religious freedom, or the right to be free from arbitrary state discrimination, can sometimes involve these weighty symbolic factors. The existence of important political principles or the potential for broader public impact in a case is also a factor the courts look to in assessing whether attorney fees should be awarded, and so it is a factor that a lawyer will typically consider in deciding whether to take on a case in the first place.

LA Times Endorses SB2

The editorial board endorses SB2, which would permit decertification of police found to have committed misconduct, here. The board writes:

California is out front on a lot of police reform legislation, but on this one it’s struggling to keep up. Florida, Georgia and Arizona, all of which are police-friendly states, already have decertification processes much like this one.

SB 2 is actually a very modest bill. It deserves passage. The first step toward better policing is getting bad cops out of the ranks, and Californians have waited long enough for a better way to get that done. So, as a matter of fact, have all the good cops.

Related Post: Retired LAPD Sergeant Dorsey: Pass SB2, July 13, 2021

Border Patrol Will Adopt Bodycams

Here’s another law enforcement agency coming late to the bodycam party: the Border Patrol, which said this week it will finally start using bodycams.

The Border Patrol joins the Orange County Sheriff as “Very Late Adopter” of technology that most other agencies adopted many years ago. The Sheriff announced last month that bodycams might start being deployed. As I noted the other day, some agencies have been using bodycams for more than 15 years at this point.

Ninth Circuit Upholds "Loss of Life" Damages in 1983 Action

The Ninth Circuit on Tuesday upheld awarding $3.6 million in “loss of life” damages in a 1983 action in Valenzuela v. City of Anaheim. That position, from which Judge Kenneth K. Lee dissented, reinforces the holding of Chaudry v. City of Los Angeles, 751 F.3d 1096 (2014). It also marks a distinction between the way this issue is handled in federal court versus the way it is treated under California law, where § 377.34 of the Cal Code of Civil Procedure bars recovery for loss of life in an action brought by the estate of a decedent.

As footnote 7 of the opinion acknowledges, the position taken by the majority here has been unanimously followed by district courts in the Ninth Circuit after Chaudry, so this outcome is not any major shift in the landscape. In fact, if anything, the longer term significance of the opinion would seem to be Judge Lee’s dissent, which makes the case for revisiting Chaudry.

Congresswoman Waters Calls for Investigation into LA Sheriff Gangs

Congresswoman Maxine Waters (D-Los Angeles) has requested that the federal Department of Justice investigate the presence of gangs among the Los Angeles County Sheriff’s Department.

This call seems to be an effect of the tremendous work that Cerise Castle has done in documenting the distresing extent of gangs within the Sheriff’s Department. Waters’ inquiry focuses specifically on a gang called the Executioners that is said to dominate the Sheriff’s station in Compton, but Castle has documented gangs permeating virtually the entire department.

Sheriff Villanueva in May acknowledged that “There’s cliques everywhere. Every single police station, I guarantee you,” while simultaneously asserting that this was nothing to worry about.

Officer "Wellness" App Deployed by Lexipol, Surely No Ulterior Motive

We wrote earlier about the troubling case of Lexipol, the private agency that is simultaneously drafting policies for law enforcement agencies around the county and lobbying against law enforcement reform, with the ultimate goal being, at all times, to reduce costs for municipalities.

Now it’s being reported that Lexipol is behind an “officer wellness” app, CordicoShield, the ostensible purpose of which is

to provide officers with resources to address PTSD, anxiety, depression, familial adversity, social stress and substance abuse — all of which can arise because of cumulative stress and trauma associated with the job. CordicoShield is a wellness solution designed to provide a host of critical resources to help law enforcement officers learn about the behavioral health issues they may be facing, build and maintain resilience, and connect with vetted therapists and peer support team members.

Sounds lovely. Surely there couldn’t be any privacy concerns, and certainly no conflicts of interest, in having a bunch of lawyers, whose core job is to reduce liability exposure for municipalities, release an app to monitor the mental health of individual law enforcement officers. (Note: While this app is being described as an effort to “help law enforcement officers,” when Lexipol originally acquired Cordico in December of 2020, it explicitly acknowledged that the point of the app was to be “a part of every public safety agency’s risk management strategy,” where “risk management” means management of liability risk to agencies and municipalities, not to LEOs.) Surely the point of this app is to make those individual officers feel “well,” not to monitor them in areas of their lives that would normally be their own private business. All the resources are “confidential,” Lexipol says, and surely LEOs can rely on that representation, which couldn’t possibly be misleading or incomplete, or legally impossible for individual LEOS to enforce. Surely this would not be an effort by Lexipol to insert itself into the employer-employee relationship in exactly the same way it has inserted itself into the relationship between public agencies and the public.

California Police Unions Throw Money at Key Lawmakers Ahead of SB2 Votes

The Sacramento Bee reports that police unions are opening up their checkbooks in what looks like an effort to influence key Democratic members of the Assembly ahead of votes on SB2, the bill that would allow decertification of officers who have been found to have committed misconduct.

In particular, the article notes, the unions have donated to Assembly Appropriations Chairwoman Lorena Gonzalez (D-San Diego), with the Los Angeles Police Protective League giving $24,300 to a ballot measure favored by Gonzalez and a PAC of the Deputy Sheriff’s Association of San Diego splitting nearly $50,000 in donations between the ballot measure and Gonzalez’s campaign account.

A spokesman for Gonzalez rejected the suggestion that the donations could influence her votes, the paper reported.

SB2 passed through the Assembly Public Safety Committee earlier this month.

Retired LAPD Sergeant Dorsey: Pass SB2

The Sacramento Bee ran an op-ed Sunday (semi-paywall) from retired LAPD Sergeant Cheryl Dorsey arguing that California’s SB2 should be passed to permit decertification of law enforcement officers who have committed serious misconduct. Dorsey writes:

Having served Los Angeles for 20 years as a police officer, I support this bill because the police badge should not be used as a weapon to abuse power, or as a shield from owning our mistakes.

CA Atttorney General Will Begin Handling Investigations of Fatal Police Shootings

The California Attorney General will begin investigating fatal police shootings, taking over those investigations from the local law enforcement agencies that had previously handled them. According to news accounts:

two newly established state teams, one based in Northern California and the other in Southern California, will have a combined 33 special agents and supervisors who can call on crime analysts, forensic experts and others as needed.

The state teams will focus solely on whether the shootings were legally justified, sending their reports to the California Department of Justice’s Special Prosecutions Section for a decision. The department will ultimately either file criminal charges or release a written report outlining why they weren't warranted

There are interesting public records implications to having such investigations occur, because the content of such investigations should (presumably) be public under the terms of SB 1421.

LAPD Finds No Wrongdoing by Sergeant Who Shared Offensive George Floyd Meme

An LAPD sergeant who shared an offensive meme about George Floyd has been cleared of wrongdoing by the department. The meme, sent on Valentine’s Day, featured an image of Floyd and the caption “You take my breath away.”

As outrageous as the content of that meme is, there do seem to be ambiguities in this case about the intent of the sergeant. His attorney is quoted by the LA Daily News as saying “The officer found the meme offensive, he did not create the meme, nor did he distribute it beyond notifying a commanding officer of its existence.” Tough to know if that is accurate, but at the same time there may be a value (in the context of our contemporary culture) in not taking everything in the worst possible light.

“On Our Watch” Tackles Brady after SB 1421, and Raises Questions About WhY THERE IS NO california PROTOCOL AROUND TRANSMITTING BRADY INFORMATION

The latest episode of the fantastic NPR podcast On Our Watch addresses Brady information (i.e., information that is exculpatory or impeaching in a criminal case) that now is available to the public by virtue of the passage of SB 1421. It also raises challenging questions about why Brady information about problematic officers is handled in such an informal, unsystematic way in California, with each individual law enforcement agency throughout the state doing whatever it likes — which, in a surprisingly large percentage of cases, is nothing at all — to track Brady information, to make it available to prosecutors who might conceivably convey it to defense lawyers, and to share it with other agencies who might otherwise hire these officers.

Brady Monkeys. Like administrators in California law enforcement agencies, they see no evil, hear no evil, and certainly don’t talk about evil with anybody else.

At one point, reporter Sukey Lewis notes that an On Our Watch analysis of 200 internal affairs cases from 2014 through 2019 found over 100 California law enforcement officers lied on an official police report or in sworn testimony. Just in that set of data, the podcast identified 23 officers who were known to have lied who are still working as police today.

The prior episode of the podcast, which had to do with an officer in Salinas who was fired after repeatedly dropping the ball in filing reports and, in general, doing an extremely poor job of investigating crime, raised a similar concern because it noted that the officer in question was still employed in law enforcement, just at a different agency. Not only that, his current employer did not even want to know about what problems he had had previously when Lewis offered to share that information. Still another episode discussed a DA who was informed about Brady information — specifically, an officer lying and exaggerating in a report to justify her own error in having let her dog seriously injure a woman — but kept it under wraps, continuing to push for criminal charges against the woman who was harmed by the error of the officer, apparently without ever informing the public defender that the officer had been disciplined for her misrepresentations.

The whole thing seems upside down, if you think about it for a moment. Shouldn’t law enforcement agencies have duty to ensure that the people they hire have not been previously fired from some other agency for dishonesty? And shouldn’t there be some sort of statewide (or even national) index of Brady-type material, such that it’s not just left to chance and to somebody’s good intentions whether the relevant information is even available to review in the first place?

Lewis notes that some prosecuting offices maintain a “Brady” list, which is good, except that it’s almost certainly just an Excel file on somebody’s desktop somewhere. California defense lawyers do something similar, informally sharing names of officers who are known to have been involved in problematic situations. But it is striking that a repository of this type of information is not systematized, given how weighty the concern is. Officers get fired for sexual misconduct on the job, to take one example that the podcast has covered, and simply get rehired elsewhere, free to continue doing the same thing because they not only haven’t been criminally prosecuted for the abuse of their authority to harass and coerce women but in many cases their misconduct hasn’t even been shared outside of the department that fired them in the first place.

Above all else, the full arc of On Our Watch illustrates what a stranglehold police unions have had over the contours of law enforcement policy in California. Municipalities bend over backwards to avoid union wrath while individual problem officers bounce around from agency to agency like so many wayward priests. They may be slapped on the wrist, but they are almost never prosecuted, almost never publicly named, and almost never stopped from repeating their misdeeds.

This issue is related to the problem SB2 is intended to resolve — namely, that California does not currently have a way to decertify officers who have been found to have committed misconduct, thereby preventing those people from being rehired at a different agency. 46 other states already have such a process, and California is definitely lagging behind in this respect. This issue is also related to the proposed changes of SB16 which would make many more types of police personnel records subject to disclosure under the California Public Records Act, and would also require law enforcement agencies to actually make some effort to review the employment history of a candidate who has previously worked in law enforcement before giving that person yet another crack at carrying a gun and a badge. Those would be positive steps, if enacted.

More fundamentally, however, it seems like California needs legislation focused on the way Brady information, in particular, is handled by, and transmitted by, law enforcement agencies, and to whom it must be transmitted. The lack of any broad scale policy around this subject seems to mean, bizarrely, that the entity in this state that probably has the most comprehensive overview of Brady information related to California law enforcement officers is KQED itself, simply by virtue of the fact that they made so many requests for public records from state law enforcement agencies after SB 1421 was passed. Not a law enforcement agency, not a state regular: a radio station.

Thank goodness for the diligent work of the reporters putting together On Our Watch, but it’s no substitute for the type of formalized, statewide structure that should actually be in place to deal with this issue.

1994 Again: The Gathering Clouds of the "Tough on Crime" Storm

As the country staggers back from covid and the major parties float various talking points ahead of the 2022 midterms, it is beginning to feel a lot like we are moving forward into the past. Moving, specifically, into 1994.

Then-Senator Biden in 1994

The parallels are not hard to see. We have a drumbeat of reports that crime is on the rise, with at least some basis in truth in the area of violent crime (though not much context). We have a looming midterm election in which Republicans will attempt to pin this trend on a Democratic president and a Democratic House majority. And (as is always the case when we are talking about crime) we have a strong underlying current of racial resentment, with white anxiety over the Black Lives Matter movement, 2020 demonstrations, and “defund the police” campaigns not far from the surface.

Similar factors were at play going into the 1994 midterms. Democrats controlled the presidency and both houses of Congress, but crime (which was at significantly higher levels in the 90s than it is today), was a substantial concern. The infamous 1994 Crime Bill, which then-Senator Biden supported, was signed into law by President Clinton in September of 1994, just two months before the midterm elections. Decades later, the country is still working to sort out the impacts of the wave of incarceration that this legislation helped create.

A lot of crime policy, of course, is a product of state and local politics, rather than federal politics. But there is an interplay between the local and national stages because of the way local issues get spun into national narratives. Here in California, there are several dynamics that may lends themelves to a “tough-on-crime” narrative despite (or perhaps because of) the fact that the state is more progressive than many other parts of America. First, California has seen the rise of the “progressive” prosecutor in figures like Chesa Boudin in San Francisco and George Gascón in Los Angeles. Both of these DAs have instituted policies that put them strongly at odds with law enforcement unions, and Gascón is facing a recall effort. (Boudin is as well, though the effort appears to be floundering.) California has also undergone several waves of legislative reform aimed at reducing overincarceration, including changes to its Three Strikes law and the 2014 passage of Prop. 47, which deprioritized low-level property crime. If you wonder why there is constant harping in the media about whether Walgreens in San Francisco is seeing a lot shoplifting, this is the reason: because such shoplifting is intended to be a concrete example of the “failure” of Prop. 47 and progressive crime policy more generally. (Never mind what the data actually shows, which is that shoplifting is down in San Francisco from where it was in 2018 and 2019 when nobody was talking about it.)

The same is true regarding the recent reporting on the California Department of Corrections and Rehabilitation releasing certain inmates, and prosecutors’ attempts to legally block those releases: these are things California voters approved years ago via Prop. 57, and they are not a surprise. They are scarcely even “news” at all except for the fact that events in the world of crime often treated by the media as having no context. But that doesn’t mean these releases can’t be spun into a national-level story that can be used to influence outcomes in other areas.

California is a relatively liberal state, and it seems unlikely that the majority of California voters are going to substantially abandon the course of the last several years and retreat to “tough-on-crime” policies of the sort we saw in the ‘90s. But what we almost certainly will see is a pronounced effort at the national level to argue that the “failure” of California criminal justice policies, especially in San Francisco and Los Angeles, requires electing conservatives to Congress. It wouldn’t be surprising, in fact, if we saw an attempt to retool Newt Gingrich’s 1994 “Contract with America” as a conservative positioning piece ahead of 2022, with crime policy occupying a central place in such a contract. (Gingrich himself has apparently suggested that he should do this in collaboration with the former president, though It’s unclear that anybody really wants to dance with Gingrich again.)

Another unfortunate thing we are basically guaranteed to see in the months ahead is the local crime story out of SF or LA that gets magnified by Fox et al. into a national referendum on Democrats’ purported “weakness” on crime. There will be some sort of unpleasant violent crime committed by an immigrant or a person of color, and it will be Willie Horton-ized into the type of dog-whistle politics that are so often cited in calls to crack down.

The really challenging question is how Democrats will respond to this dynamic. In the ‘90s, it wasn’t even a question: they shamelessly flogged the tough-on-crime narrative, throwing communities of color under the bus via both the 1994 crime bill and the 1996 passage of AEDPA, which effectively eviscerated federal review of state convictions. Biden, perhaps not surprisingly, has already begun signaling his tough-on-crime credentials again. His rhetoric, about “taking on the bad actors doing bad things to our communities” almost sounds like another politician’s comments about certain “hombres,” though surely (?) he doesn’t mean it that way. It seems likely that Democrats in vulnerable districts may want to adopt similar approaches as we enter the midterm whirlwind. But Democrats may also be somewhat constrained by the evolving demographic and political realities of our nation and even, one hopes, by at least some glimmer of conscience. It may be harder to be crudely “tough on crime” when the politics of racial scapegoating no longer play as well as they did a quarter century ago.

San Diego City Council Candidate Day: Reject Police Union Contributions

Joel Day, a candidate for San Diego City Council, has an op-ed asserting that candidates for local office should not take donations from police unions. Day writes:

Since our City Council appropriates police budgets, confirms the police chief, appoints the executive director and commissioners of the Commission on Police Practices (which have ultimate say over recommending discipline for officer misbehavior) and stands to enact structural reforms to reimagine how we use police broadly, it is just as inappropriate for police unions to endorse as it would be for generals or admirals in the U.S. military.

He notes that Canada, Australia and England ban such contributions.

Some California politicians have made similar moves. California Senator Scott Wiener announced in 2020 that he would no longer accept donations from law enforcement unions. Some progressive prosecutors, including San Francisco’s Chesa Boudin, Los Angeles’ George Gascon, and San Joaquin County’s Tori Verber Salazar, asserted in 2020 that the American Bar Association should ban law enforcement lobby contributions to prosecutorial campaigns. And Assemblymember Rob Bonta (D-Oakland) floated an idea for a bill in 2020 that would require prosecutors to recuse themselves “from investigating and prosecuting excessive force and fatal shootings by police when the prosecutor has taken campaign contributions from the officer’s labor union or association.”

San Diego District Attorney Summer Stephan stated in 2018 that she would not take police union donations, but The Appeal reported that law enforcement unions nevertheless spent substantial sums to support her.

Scrutiny on San Jose's Withholding of Public Records Related to Mayor's Nonprofit

The San Jose Spotlight notes a curious public records kerfuffle in San Jose related to a nonprofit started by San Jose Mayor Sam Liccardo, Solutions San Jose. The problem, according to the report, is that San Jose has refused to release Liccardo’s emails related to the group, even though the group engages in lobbying around city policy. The city has apparently agreed to perform a more thorough search for the emails and produce a privilege log for emails that are withheld.

Court Orders LA Sheriff to Comply with SB 1421

The LA Times reports that a Los Angeles County Superior Court judge has ordered Sheriff Villanueva to hand over long-delayed records that are deemed public under SB 1421. The judge, Mitchell L. Beckloff, has the following quote, which deserves an absolute chef’s kiss.

“This ‘We’ll get it done when we’ll get it done’ [approach] … is not acceptable under the Public Records Act,”

Claims of Conflict of Interest, Retaliation, Brown Act Violations Levied Against Some Calexico School District Trustees

The Imperial Valley Press reports that several members of the Calexico School District Board of Trustees have been named in a complaint accusing them of acting with conflicts of interest, engaging in retaliation, and violating the Brown Act. The accusations were made by district Superintendent Carlos Gonzales and members of the district’s executive cabinet.

The Holtville Tribune notes that “The bulk of the complaints are lodged against board President Ciro Calderon and board clerk Lorenzo Calderon Jr., though it appears that Trustee Enrique Alvarado and recently elected Trustee Margarita Magallanes were added to the updated list of concerns on May 24.” The only member of the trustee board not named in the complaint is Richard Romero.

Santa Clara Sheriff Calls Proposed Restriction on Less-Lethal Projectiles "Ludicrous"

Santa Clara County Sheriff Laurie Smith characterized proposed restrictions on less-lethal projectiles as “ludicrous,” though the restrictions would merely bring the Sheriff’s department in line with the policies of the San Jose Police Department. The concern around such projectiles was highlighted during the George Floyd protests, in which individuals were seriously injured or maimed by the projectiles. In Sacramento, for example, a woman peacefully attending a protest was blinded in one eye after being struck in the eye by a rubber bullet in 2020. A 59-year-old woman peacefully attending a protest in La Mesa in 2020 ended up in a coma after police shot her in the head with some sort of projectile.

Stockton Police Release Bodycam Video in Fatal Shooting of Officer

The Stockton Police Department has released video related to the fatal May shooting of Officer Jimmy Inn. The video appears to show that Officer Inn was shot almost immediately upon responding to a residence.