Public Law News

8,000 Adult Items in One Store Found "Substantial" by 2nd Circuit

2010-02-04T10:35:38-08:00

The Second Circuit Court of Appeals has overturned a district court ruling and rejected an as-applied vagueness challenge to a Town of Berlin ordinance --- and in so doing, has presented an excellent discussion of the vagueness doctrine and its application to the construction of the term "substantial". Read more about the case, VIP of Berlin, LLC v. Town of Berlin, and the decision here.

High Praise for Pot Growers' Superstore

2010-02-01T10:29:02-08:00

Will 2010 be the "Year of Living Green?" Including the year that California voters pass an initiative to legalize marijuana for personal use?

Yesterday, the backers of the "Regulate, Control and Tax Cannabis Act of 2010"--- which would legalize possession of small amounts of marijuana for adults, allow limited growing on private property, and permit local governments to decide whether to legalize and tax pot sales --- stated they would submit more signatures than required to qualify the measure for the November 2010 ballot.

Coincidently, in a ribbon-cutting ceremony attended by several members of the City Council, a 15,000 square foot warehouse-type store stocked with marijuana growing supplies opened in Oakland, California. "IGROW" does not sell marijuana, but has everything else an experienced or novice medical marijuana grower would need and more, including "Bud Candy," "Grow Big," "Bud Ignitor." The only catch is that you must have a "pot card" to validate you as a medical patient. Under current state law, Californians can legally grow and possess pot for medical purposes.

Broader legalization of marijuana use got a boost in April when a Field Poll found that 56 percent of California voters supported legalizing and taxing marijuana to help bridge the state budget deficit. The measure is not without some controversy, though. Law enforcement associations and religious groups oppose it, arguing marijuana is harmful and immoral.

Last summer, voters passed a measure in Oakland to pass and regulate businesses like IGROW, and the City is hoping for a big return in tax dollars. After November, IGROW may just have to become a chain.

EIR Required for Ordinance Banning Plastic Bags

2010-02-01T10:18:24-08:00

In Save the Plastic Bag Coalition v. City of Manhattan Beach, the Second District Court of Appeal (Los Angeles) has held that the California Environmental Quality Act (CEQA) required the City of Manhattan Beach to prepare a full Environmental Impact Report (EIR) before approving an ordinance to ban stores and other retail outlets from distributing plastic bags. The case illustrates the breadth of agency approvals which may qualify as “projects” requiring environmental review under CEQA, and the low threshold for CEQA’s requirement that a project be studied in an EIR if there is a “fair argument” that it could cause a significant environmental impact. However, perhaps the more significant ruling is that the petitioner, an association of plastic bag manufacturers, was granted standing to oppose the City’s compliance with CEQA. Read more here.

Law Enforcement Immune Under State Law for Damage to Seized Property, Appellate Court Finds

2010-02-01T08:55:37-08:00

In an opinion filed on January 22, 2010, the California Court of Appeal, Second Appellate District, confirmed that law enforcement officers are immune under state law from liability for damages caused to property seized as part of a criminal investigation. In the case, County of Los Angeles v. Superior Court, B214842, investigators employed by the Los Angeles County District Attorney's Office seized several items from the plaintiffs, but no charges were ever filed. The plaintiffs sued the investigators under California Civil Code section 52.1, alleging a violation of their civil rights against unreasonable search and seizure. In reaching its conclusion, the Court recognized that the prosecutorial immunity under Government Code sections 821.6 and 815.2 protects law enforcement officers from liability where a plaintiff's damages are caused by acts committed by officers in the scope of investigation, even if the damages occurred after the investigation and the officers acted maliciously and without probable cause, so long as the acts were causally connected to the investigation.

Although California courts have long recognized prosecutorial immunity, this decision is important because the Court held for the first time that the immunity applies to cases brought pursuant to California Civil Code section 52.1,which was enacted as part of California's comprehensive hate crime legislation. However, law enforcement agencies should understand that prosecutorial immunity does not apply to civil rights allegations made under federal law, and officers must look to the qualified immunity doctrine in such cases.

Click here to read the full opinion.

Police Officers Cautioned About Use of Social Networking Sites like Facebook

2010-01-29T08:49:14-08:00

An article published by the Police Officers' Research Association of California (PORAC) warns police officers that their interactions on social networking sites can lead to discipline, up to and including termination, if those interactions are in violation of their department's policies. Also this month, Lexipol has announced that it willbe preparing and sending out to its subscribers a policy on police officer use of Facebook.

The authors of the PORAC article cite numerous examples of uses of social networking that could lead to such discipline. For example, an officer who posts photos of herself aiming her gun at the camer or posing with her gun may violate her department's policy against gun glorification, they say. Or, an officer who posts photos of himself drinking alcohol or posts comments that reflect poorly on his department may be disciplined under the umbrella of "conduct unbecoming."

First Amendment protections may apply to officers who do not identify themselves as officers on social networking sites, but this is a "gray area", the article goes on to say. Presumably this is because individuals posting on social networking sites can never be certain that their anonymity will be maintained.

The bottom line? Don't post anything you wouldn't want your department to see, the authors say.

No More Limits on "Permissible Quantity” of Medical Marijuana

2010-01-28T11:16:33-08:00

On January 21, 2010, the California Supreme Court issued its ruling in People v. Kelly (S164830), which essentially eliminates the limitations on the quantity of medical marijuana that a qualified patient or primary caregiver may legally possess or cultivate. Read more here.

U.S. Supreme Court to Determine City Employee's Right to Privacy in Text Messages Sent on City Equipment

2010-01-21T14:14:32-08:00

For public employers, City of Ontario v. Quon raises issues regarding a public employee's right to privacy in electronic communications sent on a city's equipment. The Supreme Court's decision to hear the case follows the Ninth Circuit's ruling that a city's review of text messages sent and received by an employee on his city-issued pager violated the employee's Fourth Amendment right to privacy.

City of Ontario police sergeant Jeff Quon used his city-issued pager to send and receive hundreds of personal text messages. He incurred overage charges on the city's wireless plan that prompted the city to audit his text messages to determine if they were related to city business. Quon argued before the Ninth Circuit that his department's informal practice of allowing officers to exceed their character limits if they paid overage charges nullified the city's written policy that employees had no expectation of privacy in communications sent on city-issued equipment.

The City of Ontario subsequently appealed the case to the Supreme Court, and the League of California Cities (LOCC) issued a brief in support of the appeal, as described on the LOCC Web site.

It is anticipated that the Supreme Court will issue its ruling by the end of June.

The LOCC brief was authored by Meyers Nave attorneys Nancy Thorington and Joseph Quinn. Read Meyers Nave's press release here.

California To Go Green! First Mandatory State Green Building Code in Nation

2010-01-20T13:23:04-08:00

Last week the California Building Standards Commission unanimously approved a new building code “2010 CalGreen” that will take effect January, 2011. 2010 CalGreen is an update to the 2008 California Green Building Standards discussed in an earlier post and differs from the 2008 Green Building Standards Code in that its provisions are stricter and mandatory.

2010 CalGreen has been hailed by the San Francisco Chronicle as the most stringent and environmentally friendly state building code. However, a coalition of environmental and green building certification groups are criticizing 2010 CalGreen as a step backward, since its requirements are less strict than LEED standards and building codes already adopted in some California cities, such as Los Angeles and San Francisco. The Los Angeles Times reported that the some groups take issue with CalGreen because "the tiers cause confusion in the marketplace.” Others are in support of 2010 CalGreen because it was drafted to allow builders to receive green certification without paying for costly third-party green certification. Although the Commission touts the benefits of the 2010 CalGreen over private, point-based systems such as LEED, cities may still require LEED certification in their local green building codes. San Francisco, for one, has no intention of changing its LEED certification requirements, according to the Chronicle.

Regardless, everyone seems to agree that the mandatory basic requirements of 2010 CalGreen are a major step toward a greener California. 2010 CalGreen requires that new construction reduce water consumption by 20%, divert 50% of construction waste from landfills, and install low pollutant-emitting materials such as paints and carpets. The California Air Resources Board estimates that the Code’s mandatory provisions will reduce greenhouse gas emissions by 3 million metric tons equivalent by 2020. 2010 CalGreen also contains more stringent voluntary provisions for cities to use as a baseline in order to reduce greenhouse gas emissions.

The State Building Standards Commission is working to release a draft of 2010 CalGreen in the next few weeks.

CEQA Petitioner Must File and Serve Written Request For Hearing Within 90 Days Of Filing Petition

2010-01-19T09:24:57-08:00

It has long been established that a petitioner challenging a local agency's compliance with the California Environmental Quality Act (CEQA) must "request" a court hearing within 90 days of filing the petition, or face mandatory dismissal. A new case, County of Sacramento v. Superior Court (Forster-Gill, Inc.) clarifies that the request for a hearing must be filed in writing, and that an oral request will not suffice to avoid dismissal.

Click here to read a full analysis of County of Sacramento v. Superior Court (Forster-Gill, Inc.).

Court of Appeal Publishes Opinion in Hotly Debated Community Redevelopment Case

2010-01-15T11:09:51-08:00

The Court of Appeal has published its December opinion in JSM Rivara, LLC v. the Community Redevelopment Agency of the City of Los Angeles and the City of Los Angeles (JSM Rivara, LLC v. CRA/LA). Its publication underscores the importance of the case for redevelopment agencies around the state. JSM Rivara, LLC v. CRA/LA raised significant questions, as well as public debate, about the extent to which redevelopment agencies have the authority, under the state's Community Redevelopment Law, to impose design and development controls to implement redevelopment plans. The Court's affirmation that the actions of the CRA/LA in this case carried out the mandates of state law, rather than local laws, represented a major victory for redevelopment agencies in their efforts to eliminate blight and revitalize communities. The Court also clarified the application of state density bonus requirements in redevelopment areas. Read more about the case here or read the published opinion.