Civil Service Appeal by Former San Diego Police Officer

Posted on December 24, 2011 by Darren Chaker

Darren Chaker received an update from another former civil service employee, former police officer, who is being eaten up alive by his old department. In Sviridov v. City of San Diego, 2011 WL 4842189 Cal.App. 4 Dist.,2011 (October 13, 2011), the opinion states in part,

“Sviridov, who was born in the former Soviet Union and is a Russian-speaking United States citizen, was employed by Department from February 2001 to November 30, 2007, when he was terminated from employment. Beginning with his academy training in 2001, and during his assignments in the mid-city command and other squads, other employees and recruits subjected Sviridov to various derogatory comments, some of which referred to his Russian heritage. The comments included: “You are different vodka.” “Russian Spy.” “We beat up Russians.” “I will break your fucking neck.” “Urraa Chernobyl [a celebratory reference to the nuclear disaster] .” “If they shoot my partner, I will shoot you.” “We shoot defectors in our military.” “How long have you been speaking English?” and, “Now they are hiring Russians who don’t speak English.”

In his summary judgment declaration, Sviridov stated the “key participants” in the discrimination were Sergeant Brian Goldberg, Sergeant Bob Christano, Sergeant William Albrektsen, Sergeant Sandy Rapalee, Officer Liz Webber, Lieutenant David Rohowitz, Lieutenant Marvin Shaw, Captain Boyd Long, Sergeant Kelly Johnson and Chief Joel Bryden.”

Thankfully Sviridov won a slice of his appeal and will get his day in court. Another pointless lawsuit over a pointless firing of an officer is Mory v. City of Chula Vista [officer fired for entering in beauty pagent]

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Motion For Abeyance In Habeas Proceedings

Posted on October 9, 2011 by Darren Chaker

By Darren Chaker  

Under controlling Ninth Circuit law, the Petition contains only those claims that fulfill the exhaustion requirement.  See Calderon v. United States District Court (Gordon), 107 F.3d 756, as amended, 1997 WL 183877 (9th Cir. Apr. 16, 1997) (district court compelled to dismiss petition containing unexhausted claims); Greenawalt v. Stewart, 105 F.3d 1268, 1273-74 (9th Cir.) (district court may not entertain a“mixed” petition), cert. denied, 117 S. Ct. 794 (1997).  Fetterly v. Paskett, 997 F.2d 1295 (9th Cir. 1993) (district court abused its discretion by not holding proceeding in abeyance to permit exhaustion), cert. denied, 513 U.S. 914 (1994). 

The Local Rules and the Ninth Circuit recognize that holding federal proceedings in abeyance to permit exhaustion of additional cognizable claims is a legitimate, orderly, and efficient method of protecting petitioner’s constitutional rights and ensuring judicial economy.  See, e.g., Fetterly, 997 F.2d at 1301.                                                                              

In Fetterly, the Ninth Circuit held that the district court abused its discretion when it refused to hold habeas proceedings in abeyance while the capital petitioner presented additional unexhausted claims to the state courts.  997 F.2d at 1298.  The court’s holding was premised upon the goal of resolving all potential constitutional claims in one federal proceeding and avoiding the drastic procedural hurdles attendant to bringing a second petition with such claims.  Id.  The court made clear the permissive approach district courts should take to the consideration of new constitutional claims that arise during the pendency of a petition, and which are not brought “to delay, to vex, or to harass” or otherwise constitute an “abuse of the writ.” Id. at 1302 (citing Sanders v. United States, 373 U.S. 1, 18 (1963)).  Read more... (787 words, estimated 3:09 mins reading time)

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Police Search Phone After Arrest Upheld

Posted on October 2, 2011 by Darren Chaker

By Darren Chaker

Another case where using basic counter forensic tactics can retain your Fifth Amendment right, by using password protection for your phone, this most recent case demonstrates why it is important to keep your phone secure. In People v. Nottoli, H035902, 2011 WL 4436188 (Cal. Ct. App. Sept. 26, 2011) the court held an automobile search incident to arrest validly included use of arrestee’s smartphone to examine files since the underlying offense could be connected to the smartphone.

The court found it was reasonable to believe evidence relevant to the crime of arrest of being under the influence of a controlled substance might be found in an arrestee’s automobile, and thus, under the Fourth Amendment, that offense supported a search of the automobile’s passenger compartment and any containers found therein incident to the arrest. The deputies’ authority to search containers in the passenger compartment included the authority to examine text messages, photographs, and e-mails using a smartphone found in the arrestee’s automobile’s cup holder. It was irrelevant whether the deputies’ subjective motivation was to search for evidence of other crimes, or whether the deputies held a reasonable belief that the smartphone held evidence relevant to the crime of arrest.

Interestingly, the court noted in U.S. v. Reagan (2010) 713 F.Supp.2d 724, a court concluded that a national park ranger’s warrantless search of a vehicle incident to the arrest of the driver for driving under the influence (DUI) was unlawful. (Id. at p. 734.) The court found that it was “not reasonable to believe that evidence of DUI is inside the passenger compartment of a vehicle based solely upon the nature of the charge or the existence of evidence that the vehicle’s driver is intoxicated.” (Id. at p. 733.)  Read more... (457 words, estimated 1:50 mins reading time)

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Process Server’s Perjury Renders Service Invalid

Posted on October 2, 2011 by Darren Chaker

By Darren Chaker

Fraudulent process server. Yes, it still happens! Process server’s declaration describing defendant by wrong hair color and race did not establish effective service as resolved by the American Express Centurian Bank v. Zara, 2011 WL 1760753 (Cal.App. 6 Dist.)

A bank failed to carry its burden of proving the facts requisite
to an effective service of process on an individual, even though the process
server’s declaration established a presumption of the facts stated in the
declaration, where the proof of service showed personal service upon the
defendant himself, and the proof of service described the defendant with the
wrong race and hair color.

The trial court and the bank did not contradict the defendant’s declaration that the description was wrong when they saw the defendant at the hearing on the motion to quash. Thus, the uncontradicted evidence was that the process server did not personally serve the defendant. (Love this case!)

 

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Mistake of Law Requires Suppression

Posted on September 13, 2011 by Darren Chaker

By Darren Chaker

In People v. Reyes People v. Reyes, 196 Cal.App.4th 856, a defendant’s use of a van with only one Florida license plate was not a violation of California or Florida law, and thus a police officer’s observation that the van had only one Florida license plate did not give rise to an objectively reasonable suspicion supporting an investigatory stop of the van under the Fourth Amendment.

A police officer’s pure mistake of law cannot provide objectively reasonable suspicion for a traffic stop, under the Fourth Amendment. In People v. White (2003) 107 Cal.App.4th 636, 641, 132 Cal.Rptr.2d 371, the officer observed a vehicle with one Arizona license plate affixed to the rear of the vehicle. The officer stopped the vehicle, mistakenly believing that the single Arizona license plate was a violation of the law. But, like Michigan and Florida, Arizona requires only one license plate. Thus, that which the officer observed was not unlawful. In the present case, the vehicle did not display any irregularity; the officer observed a circumstance that “does not in any way, shape or form constitute a crime.” (U.S. v. Wallace, supra, at p. 1220.)

Similarly, in U.S. v. Twilley (9th Cir.2000) 222 F.3d 1092, 1095, police stopped Twilley in a car near Barstow, California, resulting in a drug seizure. The car Twilley was driving had a single license plate issued from Michigan. The officer mistakenly believed Michigan issued two license plates. The officer was wrong, and Twilley’s 195 month sentence was vacated since the initial stop was unlawfully based on the mistake of fact Michigan issued two license plates. In this case, the officer’s belief two plates were required under Florida law were incorrect. Florida issues “one registration license plate” for passenger vehicles. (Fla.Stat. §§ 320.06, subd. (1)(a), 320.0706.) Consequently, the evidence seized was subsequently suppressed.

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San Diego Police Officer Jeremy Henwood Shot and Killed

Posted on September 8, 2011 by Darren Chaker

While visiting San Diego, San Diego Police Officer Jeremy Henwood was shot in the head while at a stop light a mile away. Moments later a 100+ police wind up behind the apartment I’m staying at seeking a second suspect. Some of the pictures I took are posted here and demonstrates excellent law enforcement cohesion in a time of chaos.

The coward who can’t face off during a gun fight but needs to ambush the officer while at a stop light received a well-deserved death, not to mention hours earlier the same suspect shot another male in the face, who survived, absent a jaw and other massive facial inuries. A jury will never hear about how the suspect had a difficult child hood, wasn’t breast fed enough, or grew up near power lines which contributed to being a thug and coward. This officer did not die in fair fight, but by a coward who drove up alongside him and shot him in the head with a shot gun. The suspect’s name will not be spray painted on walls as a martyr of ‘da hood’ going up against police in a true shoot out, there will be no march down MLK Blvd. saying the suspect died as a result of police brutality, in fact, I’m not mentioning the suspect’s name since he means little to me as he should you and should not be memorialized in any manner except with a wooden cross which will rot away as his should rot in hell. Incredibly sad day in San Diego to have lost a police officer and a Marine in such a manner.  Read more... (329 words, 12 images, estimated 1:19 mins reading time)

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Probation Condition Found Impermissibly Vague

Posted on September 8, 2011 by Darren Chaker

California Court of Appeal issued an opinion in People v. Barajas — Cal.Rptr.3d —-, 2011 WL 3672076 (Cal.App. 6 Dist.). The court found against a probation condition which stated that a defendant was “not to be adjacent to any school campus during school hours
unless you’re enrolled in or with prior permission of the school administrator or probation officer” was impermissibly vague. The court reasoned that, while at a sufficient distance most reasonable people would agree that items are no longer adjacent, where to draw the line in the continuum from adjacent to distant was subject to the interpretation of every individual probation officer charged with enforcing the condition. Thus, to avoid inviting arbitrary enforcement and to provide fair warning of what locations should be avoided,
the court modified the condition to provide that the defendant was “not to knowingly be on or within 50 feet of any school campus.” The issue was one of first impression in the state.

Defendant was placed on probation subject to a number of conditions, including that he not be “in any specific location which you know to be or which the probation officer informs you to be an area of criminal street gang-related activity” or “adjacent to any school campus.” Defendant appealed probation conditions. The court held the “condition invited arbitrary enforcement, as what constituted “adjacent” rather than distant was subject to the interpretation of every individual probation officer charged with enforcing the condition, and condition did not provide fair warning of what locations to be avoided.”  Read more... (356 words, estimated 1:25 mins reading time)

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Distributing Obscene Material Law Violates First Amendment

Posted on September 7, 2011 by Darren Chaker

In Am. Booksellers Found. for Free Expression v. Sullivan, 3:10-CV-0193-RRB, 2011 WL 2600734 (D. Alaska June 30, 2011), an Alaska statute criminalizing knowing distribution of obscene material to a minor violated the First Amendment.

In ruling against Alaska Senate Bill 222, which would have enacted Section 11.61.128, Chief U.S. District Judge Ralph Beistline held, “There are no reasonable technological
means that enable a speaker on the Internet to ascertain the actual age of persons who access their communications. Individuals who fear the possibility of a minor receiving speech intended for an adult may refrain from exercising their right to free speech at all — an unacceptable result.”

This case did not originate from a defendant who was prosecuted, but consisted of a “spectrum of individuals and organizations—including booksellers, a photographer, libraries, and organizations representing booksellers, publishers and other media
interests-that communicate, disseminate, display and access a broad range of
speech in the physical world as well as through the Internet.” These organizations had a vested interest in striking down the law since it would have made anyone who operates a website criminally liable for posting, selling, or loaning material deemed “harmful to minors.”

The Plaintiffs cited that eighteen federal judges in five circuits have struck down state statutes forbidding Internet communications deemed harmful to minors like the one at
issue here. Most notably the COPA statute, a federal statute similar to the Amended Act, was held unconstitutional. ACLU v. Gonzales, 478 F.Supp.2d 775 (E.D.Pa.2007), aff’d sub nom. ACLU v. Mukasey, 534 F.3d 181 (3d Cir.2008), cert. denied, ––– U.S. ––––, 129 S.Ct. 1032, 173 L.Ed.2d 293 (2009). In addition, the Wisconsin Supreme Court found a
similar Wisconsin statute unconstitutional for lacking an appropriate scienter
requirement. State v. Weidner, 235 Wis.2d 306, 611 N.W.2d 684 (Wis.2000).  Read more... (413 words, estimated 1:39 mins reading time)

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Teacher Terminated For Homosexual Personal Ad

Posted on September 7, 2011 by Darren Chaker

In San Diego Unified School District v. Commission on Professional Competence, 194
Cal.App.4th 1454, 267 Ed. Law Rep. 301, 11 Cal. Daily Op. Serv. 5309, 2011 Daily Journal D.A.R. 6297, a teacher’s posting on a public website of a graphic ad soliciting sex was evidence of an evident unfitness for service which supported his dismissal. The ad, which contained graphic photographs of the teacher’s genitalia and anus, was seen by at least
one parent and by the school principal, who testified that the relationship with the teacher had been impaired by the ad. The court noted that the district promptly served the teacher with notice of the charges, that the posting was inconsistent with teaching middle school students and serving as an administrator, that the manner of the posting was blameworthy, and that the teacher was likely to continue posting ads soliciting sex and did not believe he had done anything immoral. Furthermore, the court found that there was a
nexus between the conduct and the teacher’s fitness to teach, despite his claim that he did not think it would have any impact on his ability to teach his students if any of them had viewed the ad. Computer forensics did not demonstrate any ad was posted from school. In addition, evidence unfitness for service, the court found the posting to be immoral or unprofessional conduct, also justifying his termination.  Read more... (475 words, estimated 1:54 mins reading time)

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La Mesa Attorney Scott McMillan

Posted on August 31, 2011 by Darren Chaker

I recently found some disturbing representations by La Mesa Attorney Scott McMillan. Some of them include “We are a results oriented law firm” and “The McMillan Law Firm, APC is San Diego’s leading business litigation, employment law, and real estate litigation law firm…”- McMillanLaw.

Respectfully, if Scott McMillan’s “results oriented” objective is to lose every appeal and writ petition, and lead through failure, then no doubt Scott McMillan is your guy. I see nothing indicating any recent great success by Scott McMillan in the trial court to be deemed a “leading business litigation” firm, or any success in the appellate court. This could be due to the fact Scott McMillan graduated from an unaccredited law school [Western Sierra School of Law], that at the time was tucked away behind a car dealership in a strip mall [relocated to a different strip mall], or simply bad lawyering. However, in an effort to inform and protect consumers, I believe parsing out fact from fiction is important prior to embracing the representations of any professional. Such potential misrepresentations may be present where Scott McMillan operates the McMillan Academy of Law, Maol …  however doesn’t have a single student to my knowledge or single graduate who has passed the State Bar exam – thus how can there be a school without a student? It also appears the McMillan Academy of Law offers up to five different degrees, including a joint MBA/JD program, however I have been unable to locate any alumni, or ranking for the MBA program either.  Read more... (1603 words, estimated 6:25 mins reading time)

Posted in Denise McMillan, Scott McMillan, The McMillan Law Firm | Tagged , , , , , | Leave a comment