Author Archives: GM Singer

Arresting Bickering Students to Prove a Point? Too Far, Says Ninth Circuit.

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“Society expects that children will make mistakes in school—and yes, even occasionally fight.”1 A group of students in Etiwanda Intermediate Middle School in Rancho Cucamonga, California, took that aphorism to heart, feuding in the way only young girls can – pointlessly.

The main instigator, who we’ll call “Amy,”2 approaches a classmate, “Betty,” during a break between classes. Amy grabs Betty by the hair and punches her in the face. Another girl, “Charlotte” sees the fight and pulls Amy away. Betty never throws a punch, but she and Amy are both suspended.3 Betty’s mother asks a school resource officer, Sheriff Deputy Thomas, about filing a restraining order. He says it’s not practical and sends Betty’s mother on her way.

Fast forward a couple weeks. Amy tells her friends that she plans on beating up another student, “Deborah.” Before long, Deborah finds out and confronts Amy, telling her to “get it over with” if that is what she planned on doing. Amy accepts the invitation and punches Deborah, who doesn’t fight back. The next weekend, Amy enlists another student (“Emma”) to continue her bullying spree. The pair find Betty and Deborah in a park and attempt to start another fight, but Betty and Deborah flee.

In school the next week, Betty, Charlotte, and Deborah complain to school administration about Amy’s behavior. Later that day, all five girls, plus two additional students (“Fiona” and “Grace”) are summoned to a meeting with the principal, assistant principal, and Sheriff Deputy Ortiz, another school resource officer. Although the purpose of the meeting is supposedly to mediate the feud and stop the bullying, Deputy Ortiz quickly concludes that the girls’ “body language and continued whispering” are disrespectful.4 Within minutes, he threatens to take the whole group of them to jail to “prove a point”:

And for the one lady laughing that thinks it’s funny, I am not playing around. I am dead serious that we are taking you guys to jail. That might [be], it might be-is, the most easiest thing to do . . . to wanting to prove a point . . . that I am not playing around. . . . Eventually, maybe, you guys will make it into high school, then I will have to deal with you even more. Here is a good opportunity for me to prove a point and make you guys mature a lot faster. Then, unfortunate [sic] for you guys, you guys will probably now be in the system. You will have a criminal record. Just because you guys can’t figure something out here.

[H]ere is the thing right now ... I don’t care who is at fault, who did what. You hear that? I don’t care who did what, who is saying what, and whose fault it is. To me it is the same, same ticket, same pair of handcuffs.

With that, Deputy Ortiz declares that he is arresting the girls under a California statute that prohibits fighting, and (aided by Deputy Thomas), he handcuffs all seven. Six of the girls are transported in police cruisers to the sheriff’s station, where they are separated, interviewed, and eventually released to their parents. Ironically, Deputy Ortiz releases the main instigator, Amy, to her father on the school campus, without a trip to the station.

Upset at the treatment of their girls, the parents of Betty, Charlotte, and Deborah sue Deputies Ortiz and Thomas,5 for (among other thing) violating the girls’ Fourth Amendment rights against unreasonable seizures.6

The Fourth Amendment, of course, gets a bit tricky when applied at school. Anyone who has ever been the subject of a surprise locker search knows that certain rights are checked at the door when you walk onto campus. Largely, the courts have reasoned (rightly so) that the need to manage the chaotic scrum of hundreds of school children requires a great deal of flexibility when it comes to disciplinary matters. Far more so than what Fourth Amendment would allow of authorities in adult society:

[T]he preservation of order and a proper educational environment requires close supervision of schoolchildren, as well as the enforcement of rules against conduct that would be perfectly permissible if undertaken by an adult. Events calling for discipline are frequent occurrences and sometimes require immediate, effective action. Accordingly, we have recognized that maintaining security and order in the schools requires a certain degree of flexibility in school disciplinary procedures, and we have respected the value of preserving the informality of the student-teacher relationship.

Even still, “flexibility” does not mean school officials have carte blanche to do anything and everything to the children in their charge under the banner of “discipline.” Rather, whether an action goes too far depends, mainly, on whether it is reasonable under the circumstances.

The Ninth Circuit, reviewing Deputy Ortiz’s actions, found he fell far short of reasonable. To start with, Deputy Ortiz didn’t know any specifics about the feud between the girls. He didn’t know who hit who. Let alone when or why. School administration had only given him “generalized allegations of group bickering and fighting,” not the specific information he would need to make an arrest:

Deputy Ortiz had no information suggesting that [Betty, Charlotte, and Deborah] were individually responsible as the instigators or aggressors instead of as the victims. In fact, had Deputy Ortiz even minimally inquired about the circumstances of the conflict, as he initially intended to do, he would have learned that [Betty, Charlotte, and Deborah] had tried that very morning to report [Amy’s] aggression to school administrators.

But even if Deputy Ortiz had known the full circumstances of the fights and took care to arrest the actual instigator (instead of the victims), according to the Court his actions would still have been disproportionate and unreasonable:

The summary arrest, handcuffing, and police transport to the station of middle school girls was a disproportionate response to the school’s need, which was dissipation of what [an assistant principal] characterized as an “ongoing feud” and “continuous argument” between the students.

Thus, Deputy Ortiz’s use of his arrest power to – in his own words – “prove a point,” was incompatible with the Fourth Amendment, even in the more “flexible” setting of a school.7

The arrest of a middle schooler, however, cannot be justified as a scare tactic, a lesson in maturity, or a chastisement for perceived disrespect. . . . An arrest meant only to “teach a lesson” and arbitrarily punish perceived disrespect is clearly unreasonable.

Read the full opinion here.

Refuse to Testify and Become an Accessory to Murder? Maybe in California.

It’s 2006. Starletta, an LA woman rents a car and lets her brother – a gang member – borrow it one evening so he can meet up with a girl. But the meeting never happens. Instead, the next morning Starletta gets a call from a family friend, Clark (another gangster), who tells her that she should report the car as stolen and pick up the brother, Clark and two others (surprise, surprise – both gangsters) at a motel.

Starletta arrives, and the trigger-happy quartet promptly spills the beans. Instead of finding a girl, they found a rival gang. Shots started flying. A rival fell dead, and the four men abandoned the rental car before fleeing to the motel. They tell Starletta that the police would never find the guns.

Notwithstanding the gangsters’ prophecy, the police find enough to interview Starletta, who explains her story in detail. The four men are promptly arrested and charged with murder. Fast forward to 2008. The case is on trial. But Starletta – and her story – have disappeared. Without their key witness, the State dismisses the case and the men walk free.

For seven years Starletta flies under the proverbial radar until, in 2015, she pops back up. She is promptly subpoenaed and, this time, the State takes no chances. They hold Starletta in custody to assure that she will have some free time to testify in the (now re-filed) case against our band of gangsters. To satisfy any fifth amendment concerns, the State gives her immunity. But, the always-loyal Starletta nonetheless refuses to say a word. The judge holds her in contempt, but Starletta, unfazed, remains steadfast in her refusals.

The State then takes the extraordinary step of charging Starletta with four felony counts of aiding and abetting (along with misdemeanor criminal contempt). At her own trial, Starletta finally starts talking. She tells the jury that she feared retaliation from the gangs and did not want to alienate her friends and family. But she also says that she did not want to see her brother and the other gangsters go to prison because of her testimony. A big mistake – one which led to a conviction and a sentence of 365 days in jail.

Why? The State’s theory was that, by refusing to testify, Starletta was helping people that she knew had been charged with a felony avoid punishment. This lines up nicely with the elements of the after-the-fact accessory statute in California:

(1) someone other than the accused, that is, a principal, must have committed a specific, completed felony;

(2) the accused must have harbored, concealed, or aided the principal;

(3) with knowledge that the principal committed the felony or has been charged or convicted of the felony; and

(4) with the intent that the principal avoid or escape from arrest, trial, conviction, or punishment.

Starletta is someone other than the accused (element 1), who has knowledge that the accused have been charged with a crime (element 3), and who admits that she won’t testify – at least in part – because she wants her brother and company to stay out of jail (element 4).

The only question, then, is whether simply refusing to testify falls within the scope of “harbored, concealed, or aided.” Clearly, Starletta did not “harbor” or “conceal” anyone, so the questions is – what does “aided” mean? On the one hand, courts in California typically read this word require an affirmative act in aid of the accused. This could be, for instance, a false statement to the police that throws them off the trial.1 But it doesn’t include simply not talking to the police about a crime, even if you know who committed that crime.

In contrast to affirmative falsehoods, the mere passive failure to reveal a crime, the refusal to give information, or the denial of knowledge motivated by self-interest does not constitute the crime of accessory.

Thus, a person generally does not have an obligation to volunteer information to police or to speak with police about a crime. If the person speaks, however, he or she may not affirmatively misrepresent facts concerning the crime, with knowledge the principal committed the crime and with the intent that the principal avoid or escape from arrest, trial, conviction, or punishment.

So, lying to the police is a criminal “act” in aid of the accused, but not simply clamming up – that is merely a passive non-act, and thus non-criminal. But if that is the case, why can the State charge Starletta with a felony (or four) for essentially the same thing – simply not speaking when called upon?

The answer, according to a 2-to-1 decision from the California Court of Appeals, is that a witness who (like Starletta) has been granted immunity has a legal duty to testify when subpoenaed. She has no option to refuse. Thus, by not testifying Starletta is affirmatively ignoring her legal obligations, bringing her within the scope of the accessory statute:

A witness who has been subpoenaed and given immunity that is co-extensive with the scope of her Fifth Amendment privilege has a duty to testify. Under these circumstances, defendant's "silence" was an overt or affirmative act falling within the terms of section 32 because she had a duty to testify at defendants' preliminary hearing.

If you think this reasoning may be a bit strained, you’re in good company with Judge Baker, the lone dissenter on the appellate panel. In Judge Baker’s view, aiding an accused requires something more than simply refusing to aid his accusers:

While it might fairly be said defendant refused to aid the prosecution, that does not mean she also thereby aided her brother and the other accused men.

As for the theory that ignoring a legal duty is tantamount to an affirmative action? Judge Baker is not impressed. In his view, there is a remedy for such failures to act – criminal contempt.

It is of course true that criminal liability for failure to act can only attach where there is a duty to act, but that does not resolve the key question, namely, what criminal liability? Defendant refused to testify when properly compelled, and there is a remedy for that: criminal contempt. The majority's argument therefore at most proves that defendant was properly convicted of some criminal offense and offers nothing persuasive to specifically establish that a conviction for "aiding" her brother and the other men.

The case is now on appeal at the California Supreme Court.

Florida Police May Stand Their Ground

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Florida’s “Stand Your Ground” law has sparked enormous controversy since its enactment in 2005. Unsurprisingly, much of this consternation relates the namesake principle of the law, which clarifies that a person has no “duty to retreat” from dangerous situations.

But – despite the fanfare – the “Stand Your Ground” part of the law is perhaps not its most important component. After all, how often can a person can safely flee an already-dangerous encounter, where the use of force (including potentially deadly force) is reasonable? Not often. Even the most controversial SYG cases, such as George Zimmerman’s killing of Trayvon Martin, likely have the same outcomes even without the law. 1

Instead, a change in the procedural mechanism for invoking self-defense may prove to be the most important outgrowth of SYG. Traditionally, when a defendant claims self-defense, the burden is on the State to disprove that claim beyond a reasonable doubt at trial. A 2017 amendment to SYG, however, requires that the State first prove to the judge (by clear and convincing evidence) that self-defense does not apply, and then prove it again to the jury (beyond a reasonable doubt). This two-stage process not only previews the entire prosecution case to the defense; it gives two all-important “bites at the apple.” If the judge or the jury believe that self-defense might have been in play, the defendant walks. That is enormously powerful from a defense perspective.

Against this backdrop – a question emerged. Can law enforcement – who have their own, purpose-built self-defense law – also claim SYG immunity, complete with a pretrial immunity hearing?

At first blush, the answer seems obvious. SYG states that “a person” is justified in using force when reasonably necessary to prevent harm to himself or others. Police officers are “persons,” and thus would seemingly be covered under the law just like all other “persons.” The Second District Court of Appeal, however, looked at the question a bit differently. According to the Court, when presented with two laws addressing the same concept, the more specific statute should control over the more general one.  Thus, the law enforcement self-defense statute, being more specific to police activities, should control over the more general SYG law:

[W]hen construing multiple statutes addressing similar subjects, the specific statute . . . covering a particular subject matter is controlling over a general statutory provision covering the same and other subjects in general terms . . . [T]he specific language of section 776.05, titled ‘Law enforcement officers; use of force in making an arrest,’ must apply to the behavior of law enforcement officers during the course of an arrest, rather than the language of [Stand Your Ground], which applies generally to the public at large. We agree with the State's argument that holding otherwise would render the specific statute meaningless.

Essentially, the Court’s argument was based on legislative intent – why would the legislature have made two laws if it only needed one?

The Fourth District Court of Appeals, in a similar case, disagreed with this reasoning, concluding that parsing legislative intent is only appropriate if the text of the laws are ambiguous. If, on the other hand, the meaning of the laws are plain, that plain meaning should control:

When the statutory language is clear or unambiguous, this Court need not look behind the statute's plain language or employ principles of statutory construction to determine legislative intent.


There is nothing in the term ‘a person’ that is unclear or ambiguous. A law enforcement officer under any reasonable understanding of our language qualifies as ‘a person.’

The Florida Supreme Court, addressing the conflict, agreed with the Fourth District, holding:

This Court is without power to construe an unambiguous statute in a way which would extend, modify, or limit, its express terms or its reasonable and obvious implications.


Because these statutes plainly and unambiguously afford Stand Your Ground immunity to any “person” who acts in self-defense, there should be no reason for further analysis. Put simply, a law enforcement officer is a “person” whether on duty or off, and irrespective of whether the officer is making an arrest.

Taking the question one step further, the Court held that, where multiple defenses are granted by multiple (even overlapping) statutes, a defendant may pursue both, unless the statutes say otherwise:

Giving effect to all statutory provisions in such cases necessarily means that a law enforcement officer who claims that his or her use of force was justified under both statutes must be permitted to assert a defense under either or both—because the Legislature plainly provided for both defenses and there is nothing in the actual language of either statute that purports to abrogate the other.

This broad reading of rights and defenses is an encouraging development to the defense bar, and at least one small step towards ebbing the tide of overcriminalization.