Cooper, Brandon

9.12 PARTICULAR RIGHTS—FOURTH AMENDMENT—UNREASONABLE SEARCH—EXCEPTION TO WARRANT REQUIREMENT—SEARCH INCIDENT TO ARREST

In general, a search of [a person] [a person’s [residence] [property]] is unreasonable under the Fourth Amendment if the search is not authorized by a search warrant. [A "search warrant" is a written order signed by a judge that permits a law enforcement officer to search a particular person, place, or thing.] Under an exception to this rule, a search warrant is not required and a search is reasonable if the search is incident to a lawful arrest.

[I instruct you that the arrest of the plaintiff was a lawful arrest.] [I instruct you that the arrest of the plaintiff was a lawful arrest if [insert applicable legal standard, i.e., insert elements to show probable cause to arrest for a particular crime]].

A search is "incident to" a lawful arrest if:

1. it occurs contemporaneously with the arrest, that is, at the same time or shortly after the arrest and without any intervening events separating the search from the arrest; and

2. it is limited to a search of the person arrested and to the immediate area within which that person might gain possession of a weapon or might destroy or hide evidence at the time of the search.

In order to prove the search in this case was unreasonable, the plaintiff must prove by a preponderance of the evidence that this exception to the warrant requirement does not apply; that is, that the search was not incident to a lawful arrest.

 

Comment

Use this instruction only in conjunction with the applicable elements instructions, Instructions 9.3–9.8 and in conjunction with Instruction 9.11 (Particular Rights—Fourth Amendment—Unreasonable Search—Generally). When the search incident to arrest involves a vehicle, refer to Instruction 9.13 (Particular Rights—Fourth Amendment—Unreasonable Search—Exception to Warrant Requirement—Search of Vehicle Incident to Arrest of a Recent Occupant).

There is a split of authority among the circuits concerning which party in a § 1983 civil action has the burden to prove the factual basis for an exception to the general rule that a warrantless search is unreasonable under the Fourth Amendment. However, the Ninth Circuit has concluded the plaintiff alleging a § 1983 claim based on an unreasonable search in violation of the Fourth Amendment has the burden to prove an asserted exception to the warrant requirement did not apply. Larez v. Holcomb, 16 F.3d 1513, 1517-18 (9th Cir.1994); see also Pavao v. Pagay, 307 F.3d 915, 919 (9th Cir.2002) (reaffirming that plaintiff in § 1983 action "carries the ultimate burden of establishing each element of his or her claim, including lack of consent [to search]"). Thus, this instruction frames the burden of proof accordingly.

It is a well-settled exception to the warrant requirement that a police officer may search incident to a lawful custodial arrest both the arrested person and the area within the person’s "immediate control"; i.e., "the area from within which [the person] might gain possession of a weapon or destructible evidence." Chimel v. California, 395 U.S. 752, 763 (1969). The search must be "spatially and temporally incident to the arrest," and, to satisfy the temporal requirement, must be "roughly contemporaneous with the arrest." U.S. v. Camou, 773 F.3d 932, 937 (9th Cir.2014) (holding border patrol agent’s search of arrestee’s cell phone 80 minutes after arrest not roughly contemporaneous with arrest). "The determination of the validity of a search incident to arrest in this circuit is a two-fold inquiry: (1) was the searched item ‘within the arrestee’s immediate control when he was arrested’; (2) did ‘events occurring after the arrest but before the search ma[k]e the search unreasonable’?" Id. at 938.  

The Ninth Circuit has noted that "[m]ere temporal or spatial proximity of the search to the arrest does not justify a search; some threat or exigency must be present to justify the delay." United States v. Maddox, 614 F.3d 1046, 1049 (9th Cir.2010) (finding search of defendant’s key chain taken from his person incident to arrest, but tossed back into his vehicle after arrestee was secured in patrol car, invalid under search-incident-to-arrest exception).

An actual arrest is a prerequisite for this exception to the warrant requirement. Menotti v. City of Seattle, 409 F.3d 1113, 1153 (9th Cir.2005) (holding probable cause to make arrest insufficient to trigger exception in absence of actual arrest).

If the court is able to determine as a matter of law that an arrest was lawful, the Committee recommends the court instruct the jury accordingly. When, however, there are factual disputes about the lawfulness of an arrest, it will be necessary for the court to instruct the jury concerning the standards or elements for a lawful arrest under the facts of a particular case. See Instruction 9.21 (Particular Rights—Fourth Amendment—Unreasonable Seizure of Person—Probable Cause Arrest).

 

9.9 PARTICULAR RIGHTS—FIRST AMENDMENT—PUBLIC EMPLOYEES—SPEECH

As previously explained, the plaintiff has the burden to prove that the act[s] of the defendant [name] deprived the plaintiff of particular rights under the United States Constitution. In this case, the plaintiff alleges the defendant deprived [him] [her] of [his] [her] rights under the First Amendment to the Constitution when [insert factual basis of the plaintiff's claim].

Under the First Amendment, a public employee has a qualified right to speak on matters of public concern. In order to prove the defendant deprived the plaintiff of this First Amendment right, the plaintiff must prove the following additional elements by a preponderance of the evidence:

1.the plaintiff spoke as a citizen and not as part of [his] [her] official duties;

2.the speech was on a matter of public concern;

3.the defendant took an adverse employment action against the plaintiff; and

4.the plaintiff’s speech was a substantial or motivating factor for the adverse employment action.

I instruct you that the plaintiff’s speech was on a matter of public concern, and, therefore, the second element requires no proof.

An action is an adverse employment action if a reasonable employee would have found the action materially adverse, which means it might have dissuaded a reasonable worker from engaging in protected activity.

A substantial or motivating factor is a significant factor.

Comment

Use this instruction only in conjunction with the applicable elements instruction, Instructions 9.3–9.8, and when the plaintiff is a public employee. Use Instruction 9.10 (Particular Rights—First Amendment—"Citizen" Plaintiff) when the plaintiff is a private citizen. Because this instruction is phrased in terms focusing the jury on the defendant’s liability for certain acts, the instruction should be modified to the extent liability is premised on a failure to act in order to avoid any risk of misstating the law. See Clem v. Lomeli, 566 F.3d 1177, 1181-82 (9th Cir.2009).

As to whether a public employee’s speech is protected under the First Amendment, the Supreme Court has "made clear that public employees do not surrender all their First Amendment rights by reason of their employment. Rather, the First Amendment protects a public employee’s right in certain circumstances to speak as a citizen addressing matters of public concern." Garcetti v. Ceballos, 547 U.S. 410, 417 (2006); see also Borough of Duryea, Pa. v. Guarnieri, 564 U.S. 379 (2011) (applying Garcetti public concern test to public employee’s First Amendment Petition Clause Claims).

In Gibson v. Office of Attorney General, State of California, 561 F.3d 920, 925 (9th Cir.2009), the Ninth Circuit reiterated the "sequential five-step series of questions" to consider when evaluating a public employee’s First Amendment retaliation claim:

Those questions are as follows: "(1) whether the plaintiff spoke on a matter of public concern; (2) whether the plaintiff spoke as a private citizen or public employee; (3) whether the plaintiff’s protected speech was a substantial or motivating factor in the adverse employment action; (4) whether the state had an adequate justification for treating the employee differently from other members of the general public; and (5) whether the state would have taken the adverse employment action even absent the protected speech."

Id. (citing Eng v. Cooley, 552 F.3d 1062, 1070 (9th Cir.2009)).

Because this instruction only addresses the first three elements summarized in Eng, the instruction should be modified if there are jury issues involving the fourth or fifth factors stated above.

In Garcetti, a prosecutor brought a § 1983 action against his superiors and public employer, alleging that he was retaliated against because of a memorandum he wrote that challenged the veracity of a deputy sheriff’s affidavit used to procure a search warrant. The Supreme Court held the prosecutor could not establish a First Amendment violation because he prepared the memorandum as part of his official duties and not as a private citizen:

We hold that when public employees make statements pursuant to their official duties, the employees are not speaking as citizens for First Amendment purposes, and the Constitution does not insulate their communications from employer discipline. … Restricting speech that owes its existence to a public employee’s professional responsibilities does not infringe any liberties the employee might have enjoyed as a private citizen. It simply reflects the exercise of employer control over what the employer itself has commissioned or created.

547 U.S. at 421-22. The Supreme Court, however, limited its ruling in two respects. First, in an explicit effort to avoid having its holding serve as an invitation for employers to restrict employees’ rights "by creating excessively broad job descriptions," the Court noted that "the listing of a given task in an employee’s written job description is neither necessary nor sufficient to demonstrate that conducting the task is within the scope of the employee’s professional duties for First Amendment purposes." Id. at 425. Second, the Court recognized that "[t]here is some argument that expression related to academic scholarship or classroom instruction implicates additional constitutional interests that are not fully accounted for by the Court’s customary employee-speech jurisprudence … [F]or that reason we do not decide whether the analysis we conduct today would apply in the same manner to a case involving speech related to scholarship or teaching." Id.

In Demers v. Austin, 746 F.3d 402 (9th Cir.2014), however, the Ninth Circuit answered the latter question and held that "Garcetti does not apply to "speech related to scholarship or teaching." Id. at 406. Rather, such speech is governed byPickering v. Board of Education, 391 U.S. 563 (1968). The Demers court went on to conclude that a state university professor’s accreditation plan for his department addressed a matter of public concern under Pickering. Demers, 746 F.3d at 406. "Truthful testimony under oath by a public employee outside the scope of his ordinary job duties is speech as a citizen for First Amendment purposes. That is so even when the testimony relates to his public employment or concerns information learned during that employment." Lane v. Franks,134 S. Ct. 2369, 2378 (2014); see also Avila v. L.A. Police Dep’t., 758 F.3d 1096, 1104 (9th Cir. 2014).

Whether the plaintiff spoke as a public employee or a private citizen is a mixed question of fact and law. Posey v. Lake Pend Oreille Sch. Dist. No. 84, 546 F.3d 1121, 1129 (9th Cir.2008). In particular, "the scope and content of a plaintiff’s job responsibilities is a question of fact." Id. at 1130; accord Coomes v. Edmonds School District No. 15, 816 F.3d 1255, 1260 (9th Cir.2016). In Dahlia v. Rodriguez, 735 F.3d 1060 (9th Cir.2013)(en banc), the Ninth Circuit overruled Huppert v. City of Pittsburg, 574 F.3d 696 (9th Cir.2009), and found that the district court had improperly relied on a generic job description and failed to conduct the practical, fact-specific inquiry required by Garcetti, 547 U.S. at 424. Dahlia, 735 F.3d at 1063. The Ninth Circuit also set forth guiding principles for performing the Garcetti inquiry in analogous cases. Id., at 1073-76. See, e.g., Hagen v. City of Eugene, 736 F.3d 1251 (9th Cir.2013) (holding that public employee reporting departmental safety concerns pursuant to duty to so report did not speak as private citizen).

On the other hand, the "public concern inquiry is purely a question of law." Gibson, 561 F.3d at 925 (citing Eng, 552 F. 3d at 1070), that depends on the "content, form, and context of a given statement, as revealed by the whole record." Ulrich v. City and Cnty. of S.F., 308 F.3d 968, 976-77 (9th Cir.2002) (citations omitted).

The definition of "adverse employment action" in this instruction is substantially the same as that in Instruction 10.4A.1 (Civil Rights—Title VII—"Adverse Employment Action" in Retaliation Cases). See the Comment to that instruction for supporting authorities.

With respect to causation and whether "a final decision maker’s wholly independent, legitimate decision to terminate an employee [can] insulate from liability a lower-level supervisor involved in the process who had a retaliatory motive to have the employee fired" when, as a matter of causation, the termination decision was not shown to be influenced by the subordinate’s retaliatory motives, see Lakeside-Scott v. Multnomah Cnty. 556 F.3d 797, 799 (9th Cir.2009).

This instruction should be modified when an employee was allegedly subjected to an adverse employment action based on an employer’s erroneous belief that the employee engaged in protected speech. In such cases, it is the employer’s motive for taking the adverse action that triggers the employee’s right to bring an action. See Heffernan v. City of Paterson, 136 S. Ct. 1412 (2016) (holding that police officer who was demoted could pursue claim against employer even though employer acted erroneously based on belief that employee had participated in political activity).