Eastern District of California Blog

Ninth Circuit Overturns Fresno Court's Grant Of Qualified Immunity To Madera Officer In Shooting Case

In Torres v. City of Madera, the Ninth Circuit yesterday overturned the EDCA court's grant of qualified immunity to a Madera city police officer in the shooting death of Everardo Torres:

While handcuffed in the back seat of a patrol car, Everardo Torres (“Everardo”) was mortally wounded when Madera City Police Officer Marcy Noriega (“Officer Noriega”) shot him in the chest with her Glock semiautomatic pistol, believing it at the time to be her Taser M26 stun gun. Everardo’s family filed this survival action under 42 U.S.C. § 1983, asserting excessive force in violation of the Fourth Amendment, and now appeals from an adverse grant of summary judgment. Consistent with the Fourth Circuit’s decision in Henry v. Purnell, ___ F.3d ___, 2011 WL 2725816 (4th Cir. July 14, 2011) (en banc), we reverse and remand for trial.

(Footnote omitted).  The Sacramento Bee, 8/23/11 reports that the City of Madera will likely petition for rehearing en banc.

Skateboarder Admits Five Bank Robberies

A bank robber who fled the scene from several banks by skateboard pleaded guilty today in federal court in Sacramento to a series of five bank heists.

Sacramento Biz Journal, 8/22/11

New BOP Litigation Guide

Bureau of Prisons litigation guru Steve Sady and the Oregon Federal Public Defender have put out a useful, new guide to litigating BOP issues, here.  The guide includes sections on the Second Chance Act, the RDAP 500-hour drug program, custody credit issues, and halfway houses.  For future reference, I'm adding it to the list of federal criminal law resources at the right side of my blog.

Cochran Firm Sues Kern County Over Bakersfield Shooting Death

Thanks to Courthouse News, 8/17/11, I saw that the Los Angeles law firm Johnnie Cochran founded, the Cochran Firm, sued Kern County over the alleged beating and shooting death of an unarmed David Lee Turner, Sr., by Sheriff deputies in Bakersfield last month. Turner v. Kern County 8/16/11 Complaint.

EDCA Court Awards $331,000 In Attorney Fees In Sacramento Jail "Sewage Dunking" Case

  Congratulations to Sacramento attorney Stewart Katz, who was awarded over $331,000 in attorney fees and expenses by Judge Drozd in the Sacramento jail "sewage dunking" case.  See Sewage Dunking Case Verdict, 3/11/11.  Here's the Drake Jones Attorney Fee Order.  With three attorneys working for the plaintiff in a lengthy, difficult case that resulted in the jury finding jailers used constitutionally excessive force, the award seems very reasonable, even though the jury awarded only $31,000 in compensatory damages: 

On Aug. 12, U.S. Magistrate Judge Dale A. Drozd ordered the county to pay fees, costs and expenses totaling $331,225 to Katz; an associate in his office, Guy Danilowitz; and Joseph George Jr., an attorney he sometimes works with.

Quoting from a 2009 federal appellate opinion, Drozd wrote: "The (U.S.) Supreme Court has … indicated that when a decision has 'served the public interest by vindicating important constitutional rights' an award of attorney's fees that is disproportionate to the actual damages may be appropriate.

"This is such a case," Drozd wrote in his 36-page order.

"Achieving such a verdict is no easy task, and obtaining the … finding" of malice, oppression and recklessness "is even more difficult," Drozd said. "Moreover, such verdicts are significant in that they represent a determination by citizens … that the defendant law enforcement officers' conduct … was prohibited by the U.S. Constitution. The court trusts that the defendants and those in their department will take heed of the verdict and adjust their future conduct accordingly."

Drozd also quoted a 2008 federal appellate opinion, saying the lawsuit should "act as a deterrent to law enforcement and serve the public purpose of helping to protect the plaintiff and persons like him from being subjected to similar unlawful treatment in the future."

Sacramento Bee, 8/20/11.

Photo:  Sacramento County Main Jail, sacsheriff.com

Fresno Jury Awards Fired Walgreens Pharmacist $1.2 Million

A Fresno federal court jury on Friday awarded a fired Walgreens pharmacist $1.24 million after he claimed his allegations of Medicare billing fraud led to his firing.

Jurors awarded Sami Mitri – who was fired in January 2010 after working more than 13 years for the company in various jobs – $88,000 in general damages and $1,155,000 in punitive damages.

The verdict was reached after a nine-day trial before U.S. District Judge Anthony W. Ishii.

"The jury sent a message that Walgreens can't fire a whistle-blower," Mitri's attorney Andrew Jones said. "This guy is a hero who came forward and stood up for taxpayers like you and me. He stood up for what is right."

Fresno Bee, 8/19/11

Sacramento Bee's Piece On Keker's Addition To Salyer Defense Team

Denny Walsh has a front-page piece in today's Sacramento Bee about John Keker being added to the Salyer defense team and Judge Karlton's denial of the government's motion to recuse him.  The whole article is an interesting read but here's my favorite part:

Anna Pletcher, an attorney in the San Francisco office of the U.S. Department of Justice's antitrust division, argued the motion to disqualify Keker.

"The government would be honored to face the Keker firm in a trial in the Salyer case," but Grewal's situation presents an insurmountable conflict, she told U.S. District Judge Lawrence K. Karlton.

"Are you kidding me?" Keker asked the judge rhetorically. "This is such a transparent tactical move."

Karlton rejected Pletcher's argument last week, saying, "I believe that the government has got nothing but altruism motivating its motion, and its deep concern with fairness for Mr. Salyer. I believe that, but I also believe in the tooth fairy.

"It seems to me the government is looking to avoid granting Mr. Salyer the best possible defense that he can have. That he can afford Mr. Keker is impressive all by itself … " the judge said, adding that Salyer is ending up with "either the best or close to the best white collar defense team in the world."

Keker now joins Malcolm Segal, considered one of Sacramento's top defense lawyers, who has represented Salyer from the start but says his firm is too small to wage war on an equal footing with the government in such a massive, multifaceted prosecution.

California Prisoners Make Inroads With Hunger Strike

Today's Sacramento Bee reports that the California prison hunger strike has won inmates some concessions while the state defends its isolation units.  Rally planned for August 23, 11:30 a.m. at State Capital in Sacramento.

 

California Says It Will (Almost) Meet Federal Court Prison Reduction Order

According to the Mercury News, 8/16/11,

California prison officials said Tuesday they expect to meet a federal court's mandate to reduce the state's inmate population by 33,000, or 23 percent, over the next two years, a goal that could eventually end court challenges that have largely driven prison operations for years.

The state is relying primarily on a controversial new law that will shift responsibility for tens of thousands of lower-level offenders to local sheriffs and probation offices beginning Oct. 1.

California will fall just shy of meeting the court's first deadline at the end of the year, the officials said in a court filing Tuesday, but their long-range plan to transfer jurisdiction over many criminals to counties is on track.

The Department of Corrections and Rehabilitation projects the law will reduce the population of the state's 33 adult prisons by 9,200 inmates in time for the initial Dec. 27 deadline, about 800 inmates short of the court mandate. It expects to meet the second deadline by removing 20,000 inmates by next June.

Although the state's plan to transfer inmates to local jails may satisfy the federal court's prison overcrowding order, many locals think the plan just shifts the fiscal burdens from the state to the counties and increases problems:

Los Angeles County supervisors on Tuesday condemned Sacramento's cost-cutting decision to keep some state prisoners in local lockups and have parolees be supervised by county agencies, asserting that both would lead to an increase in crime.

While discussing a prisoner transition plan submitted by Sheriff Lee Baca, Supervisor Michael D. Antonovich said he expected county jails to quickly run out of space if they must continue to handle the 7,000 low-level felons that courts normally send to state prison each year. The already-strained county Probation Department will also see an increase in probationers it must oversee.

"It's a system that's meant to fail," Antonovich said, "and who is it going to fail? Every neighborhood, every community where these people are going to be running around....It's a Pandora's box. It's the bar scene — a violent bar scene that you saw in 'Star Wars' — except they're all crazy and nuts."

LA Times, 8/17/11.  LA County is even thinking of contracting with Central Valley jails to house some of their inmates.  LA Times, 8/8/11.

Split Ninth Circuit Panel Dismisses Activists' Appeal Of EDCA Court's Refusal To Block Wild Horse Round-Up

In In Defense of Animals, et. al., v. U.S. Dept. of Interior, et. al., No. 10-16715, available here,

A split federal appellate panel today dismissed activists' appeal of a Sacramento judge's refusal to block last year's roundup and removal of wild horses and burros from their range in northeastern California.

A year ago, U.S. District Judge Morrison C. England Jr. denied a request by two nonprofit organizations for an injunction halting the roundup, and a motions panel of the 9th U. S. Circuit Court of Appeals denied an emergency motion for an injunction.

Sacramento Bee, 8/15/11