Ninth Circuit Upholds Dismissal of Declare Alleging Unconstitutional Police Mishandling of Rape Accusations

From this morning’s Ninth Circuit determination in O.L. v. Jara, by Judges Bridget Bade and Kenneth Kiyul Lee, joined by Decide Kathleen Cardone (W.D. Tex.):

Plaintiff-Appellant “O.L.” sued, claiming that officers on the Metropolis of El Monte Police Division (EMPD) and Los Angeles Sheriff’s Division (LASD) mishandled their investigations of her declare of rape….

O.L. met her alleged assailant on-line and went on a date with him. She claimed that he raped her later that evening, and she or he reported it to the EMPD. O.L. confirmed Officer Martha Tate messages on her cellphone between herself and the alleged assailant. In these messages, O.L. casually mentioned the sexual exercise that occurred the evening of the alleged rape and agreed to fulfill him once more for a future sexual encounter. Primarily based on these messages, Officer Tate questioned O.L. about alcohol use, consent, and her motive for reporting the alleged crime.

O.L.’s case was later transferred to LASD. Detective Liliana Jara interviewed her. O.L. confirmed Detective Jara the identical messages on her cellphone. Detective Jara additionally noticed a message during which O.L. advised the alleged assailant that she “may make him lose his job” after she found that he had remained lively on the web courting web site the place they met. The detective, too, questioned O.L. about her motive for reporting the alleged crime and finally advised O.L. that her case suffered from many issues.

On the finish of the interview, O.L. agreed to supply her cellphone to LASD to obtain messages. O.L. offered Detective Jara together with her cellphone password and signed a type giving LASD consent to look the telephone for “any and all knowledge” associated to the case. Earlier than returning the telephone to her, LASD’s job pressure downloaded the telephone’s knowledge onto a USB drive to permit the investigating officer to evaluation the info.

O.L. then retrieved her cellphone from LASD custody.

After the Los Angeles District Lawyer declined to file fees towards the alleged assailant, O.L. filed a professional se grievance. The district courtroom denied O.L.’s request to proceed underneath a pseudonym, and O.L. filed an amended grievance changing “Jane Doe” together with her supposed initials. The district courtroom dismissed the equal safety and Monell claims, after which granted abstract judgment for defendants on the Fourth Modification declare….

[1.] Fourth Modification Declare: O.L. argues that Detective Jara unlawfully searched her telephone and that LASD’s copying of knowledge from her telephone amounted to an unlawful seizure.

First, O.L. has not proven that Detective Jara violated her Fourth Modification proper towards unreasonable searches. O.L.’s solely proof that her telephone was searched is a screenshot picture of a single message on her telephone from a pal that was translated from Chinese language into English in her WeChat App. She claims that the message was translated whereas the telephone was in LASD’s custody, however the screenshot she offered doesn’t present when the interpretation occurred. O.L. can not create a factual dispute by speculating that Detective Jara searched the telephone and translated the message. See Loomis v. Cornish (ninth Cir. 2016) (“[M]ere allegation and hypothesis don’t create a factual dispute for functions of abstract judgment.”).

In any occasion, O.L. consented to the search. She admits to signing a type when she voluntarily gave her cellphone and its password to Detective Jara. O.L.’s signature is on a type known as “Entry and Search Waiver,” which is dated that very same day. The shape gave LASD “full and unconditional authority,” and “unrestricted entry” to look O.L.’s cellphone. O.L. maintains that she didn’t signal this kind, however she has deserted the argument that her signature was cast by failing to problem the district courtroom’s discovering on enchantment. The one believable inference is that O.L. signed the search waiver type when she gave her cellphone to Detective Jara. See Scott v. Harris (2007) (“When opposing events inform two completely different tales, one in all which is blatantly contradicted by the file, in order that no cheap jury may consider it, a courtroom shouldn’t undertake that model of the info for functions of ruling on a movement for abstract judgment.”).

Second, certified immunity bars her illegal seizure declare as a result of it’s not clearly established that copying digital knowledge for evaluation after voluntarily agreeing to a search quantities to a Fourth Modification violation. In Arizona v. Hicks (1987), the Supreme Courtroom held that the police copying down the serial numbers on stereo gear “didn’t represent a seizure” as a result of “it didn’t meaningfully intrude with respondent’s possessory curiosity in both the serial numbers or the gear.” Whereas the character of cellphone knowledge is completely different than serial numbers on a stereo, it’s unsettled as to how far the “possessory curiosity” precept extends.

O.L.’s reliance on United States v. Complete Drug Testing, Inc. (CDT) (ninth Cir. 2010) (en banc) is misplaced. In that case, the courtroom licensed the federal authorities to grab “significantly extra knowledge than that for which it had possible trigger,” topic to sure procedural safeguards. The federal government, nevertheless, ignored the required protocols, seized massive quantities of knowledge, and later justified its retention of the seized knowledge underneath the “plain view” doctrine. On enchantment, we cautioned towards the federal government retaining unresponsive knowledge primarily based on the plain view doctrine. We, nevertheless, acknowledged that “over-seizing is an inherent a part of the digital search course of.” CDT doesn’t put it past debate that legislation enforcement making a short lived native copy of cellphone knowledge whereas consensually possessing the telephone constitutes an illegal seizure.

[2.] Equal Safety Declare: To state an equal safety declare underneath § 1983, O.L. should plausibly allege info exhibiting that “the defendants acted with an intent or function to discriminate towards [her] primarily based upon membership in a protected class.” She doesn’t allege info exhibiting that the officers handled her investigation in a different way than different prison investigations. For instance, she alleges that Officer Tate requested O.L.: “What made her suppose she was a sufferer of rape.” The Second Amended Grievance then merely concludes that “[v]ictims of different sort[s] of crimes wouldn’t be requested the identical query.” “Threadbare recitals of the weather of a explanation for motion, supported by mere conclusory statements,” nevertheless, “don’t suffice.” …

{O.L. has filed related circumstances in different courts involving completely different people and municipalities. See, e.g., Doe v. Metropolis of Harmony, No. 22-15384 (ninth Cir. docketed March 15, 2022); Doe v. U.S Dist. Ct. for the Cent. Dist. of Cal., No. 22-70056 (ninth Cir. denied April 19, 2022). In these different circumstances, as right here, she proceeds both as Jane Doe or by initials (which can or will not be her personal). Whereas O.L. makes it tough to trace her circumstances as a result of she makes use of initials or pseudonyms, we warning that “[f]lagrant abuse of the judicial course of can’t be tolerated as a result of it permits one individual to preempt using judicial time that correctly might be used to think about the meritorious claims of different litigants.”}

I also needs to add that, primarily based by myself analysis in a unique case involving the identical plaintiff, “O.L.” has certainly been concerned in nonetheless extra considerably related circumstances; and in a single case involving a relationship gone dangerous, a courtroom concluded that she had been responsible of home violence, and concluded that she had been “evasive” in her testimony.

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