Charges could be brought for deliberately coughing on people during COVID pandemic

Deliberately coughing on other individuals could lead to criminal charges if the victim becomes infected with a deadly disease like the novel coronavirus COVID-19, according to legal expert Mark Reichel.

Late last month, police in Nevada County said they were trying to track down two individuals who are accused of doing just that.

In at least one case, a woman said two unknown individuals were upset after she encouraged them to wear face masks while shopping at a local grocery store. The two people eventually did put on masks, but one of the two chased the woman into the parking lot of the store, started shouting at her and made coughing noises.

The woman reported the incident to the Grass Valley Police Department. An investigation is now under way into what happened. Officers said if the woman is able to identify the man and it can be proven he acted the way she described, the man could face misdemeanor assault charges.

In an interview with FOX40 News, Mark said that might not be the worst of it for people who deliberately cough on or otherwise try to infect people.

“If it’s an offensive conduct that puts you in reasonable fear of harm, that’s an assault,” Mark said. “If it can be proven somehow that they got it from that person, that they got it from that exposure and they die, the question is do we have a murder case on our hands?”

In California, state law requires individuals to wear face masks, take social distancing measures and engage in other safety practices to curb the spread of COVID-19. More than 10,000 people in California have died from the disease since state officials began tracking it in early March.

Click or tap here to read the full story from FOX40.com

Celebrity tweet puts new focus on Stephon Clark shooting

One tweet from actress and fashion model Kim Kardashian-West has shined an international spotlight on the case of Stephon Clark, an unarmed man who was fatally shot by Sacramento police during an encounter two years ago.

Earlier this month, Kardashian-West tweeted about the March 2018 case to her 6.5 million followers on the social network, urging her fans to sign a petition demanding justice for the man’s killing.

“Kim Kardashian understands that the officers who killed my brother in my grandmother’s backyard while he was unarmed should be held accountable,” Stevante Clark, the brother of Stephon Clark, told CBS13 News in an interview.

Clark was shot as he fled from police officers who were investigating a report of a man looking into car windows. Police said they had reason to believe Clark was armed when he was shot; what was thought to be a firearm turned out to be Clark’s cell phone.

Last March, Sacramento District Attorney Anne Marie Schubert declined to file charges against the two officers connected to the shooting.

In an interview with FOX40 News in May, Sacramento defense attorney Mark Reichel said county prosecutors rarely charge police officers because their positions are elected and cases brought against police officers can be difficult to win.

“It’s better [for county prosecutors] to not bring it than to lose a high-profile case and, obviously, officer-involved killings are always high-profile,” Mark said.

More than a year later, police shootings of unarmed men — particularly those who are Black — have captured the attention of a nation. Following the death of George Floyd, an unarmed Black man who was killed by a police officer in Minneapolis, police accountability has become a rallying cry in large cities and small towns across the United States.

It has also led some activists and celebrities, like Kardashian-West, to ask for justice in cases with a copious amount of unfinished business.

“I think Kim Kardashian’s involvement will help this substantially,” Mark told CBS13 News in an interview. “I think this is a major platform. Stephon Clark’s murder is well known around American anyways and when you add Kim Kardashian to that, that platform is spread out far and wide.”

Mark said if voters choose a different district attorney in the next election, that prosecutor could elect to bring charges against the two officers. Federal officials could also bring charges, Mark explained, because “there is actually no double jeopardy between the state and the federal government.”

Click here to read the full story from CBS13 News

Sacramento police reform measures don’t go far enough, legal experts say

A series of police reform measures approved by the Sacramento City Council last week are small steps in the right direction, but the city still has a lot of work that needs to be done and shouldn’t be lauded for such minor changes, legal experts argued on Wednesday.

The reforms were prompted by calls from local activists as part of a national movement following the death of George Floyd, an unarmed black man who was killed during a police encounter by a white Minneapolis police officer.

Since then, officials in towns small and large throughout the country have looked internally at what can be done to fix the fractured system of policing.

n Sacramento, city leaders passed a series of measures that, among other things, reallocated funds away from the Sacramento Police Department toward other community initiatives; banned the use of choke holds during most police encounters; and paved the way for the creation of an independent inspector general who would be tasked with the responsibility of reviewing allegations of police misconduct and abuse of force.

Legal experts in Sacramento said the measures were a long time coming — and should have come a lot sooner.

“The policy proposals from [Sacramento Mayor Darrel Steinberg] and city officials are much delayed and hardly reform,” Elizabeth Kim, the head of the National Lawyers Guild in Sacramento, told the Davis Vanguard in an interview.

Other steps need to be taken by the city, Kim said, including an acknowledgement that so-called “non-lethal” force approved in most cases is, in fact, extremely dangerous and can be lethal for the subjects of police encounters.

Criminal defense attorney Mark Reichel agreed, pointing out the inequities between ordinary citizens and law enforcement officials.

“Lawfully, [citizens] cannot resort to force if someone steals their car, their identity, or assaults their family,” Mark said. “But the police have that lawful right — the right to use force if needed.”

Mark said it was clear that Sacramento officers had been enabled to use that force because of the city’s inaction for a long time.

Click or tap here to read the full story at the Davis Vanguard

Businesses can legally refuse customers who aren’t wearing face masks — but there are some exceptions

A Ceres, California woman is upset at her gym after she says she was kicked out for refusing to wear a mask.

Sara Fontana is a member of InShape Health Clubs, a California chain of gyms and fitness centers. During a recent visit, she said she was confronted by management who told her state law required her to wear a mask.

Fontana complained, saying she was exempt from the mask mandate because she has asthma, a recognized medical condition. Despite this, she said she was asked to leave.

The legal confusion over state-imposed mask mandates has generated a significant amount of public confusion, with some people claiming the government is “infringing” on their rights by forcing them to wear a mask in the middle of an international health crisis.

One group calling itself the “Freedom to Breath Agency” even started selling cards online that claimed the bearer is entitled to an exemption from mask mandates because of the Americans with Disabilities Act, prompting the Federal Trade Commission to issue a rare statement saying the cards were fake and the information printed on them misleading and false.

“Seen cards that say you don’t have to wear a mask because of a disability?” the FTC’s warning says. “They have the Department of Justice…seal, but they’re not from the federal government. DOJ has said not to rely on the information in the cards.”

Information from the Centers for Disease Control says wearing a cloth or other type of mask is shown to be effective in combatting the novel coronavirus COVID-19 because they “reduce the spray of droplets when worn [correctly] over the nose and mouth.”

But the CDC also says cloth face coverings shouldn’t be worn by a certain group of people, including children who are under the age of two years old or anyone who has a legitimate medical condition where using a cloth mask would be difficult.

Following CDC guidance and similar advice from local health officials, California adopted those exemptions and others when it mandated the wearing of cloth masks in public and indoor businesses last month.

So why was Fontana kicked out of her local gym?

Sacramento legal expert Mark Reichel said a business can legally ask someone to leave for not following the state mask mandate if a person can’t back up their claim of a medical exemption with some kind of proof.

“The burden is on [the customer] to prove their exemption is legitimate and back it up with medical paperwork,” Mark told CBS13 News.

If a business makes other accommodations for a customer who claims they can’t wear a mask, the customer can be asked to leave if they don’t accept that offer.

In this case, InShape Health Clubs is likely in the clear because it informed guests last month that they wouldn’t be allowed to access a gym without a face covering, and it provides an avenue for members to contact their local gym’s manager or send an email to InShape’s corporate office to request an accommodation because of a disability.

In a statement to CBS13 News, InShape said it extended the same offer to Fontana, but she refused.

“We offered [Fontana], as we do with all members, an opportunity to work with us on finding an accommodation to keep her safe and all members around her safe,” InShape Health Clubs CEO Francesca Schuler said in a statement to CBS13 News. “But she chose to not take advantage of it which then could place other members in the club at risk.”

InShape told the news outlet it has chosen not to cancel Fontana’s membership and wants to work with her in the future toward a solution that will keep her and other guests safe.

Click or tap here to read the full story from CBS13 News

Family of murdered librarian Amber Clark sues Sacramento police, prosecutor for gun records

The family of a Sacramento woman who was gunned down while sitting in her car outside a city library two years ago has filed a lawsuit against the Sacramento Police Department and Sacramento County District Attorney’s Office.

The lawsuit, filed in state court earlier this week, comes after the relatives of librarian Amber Clark sent numerous requests to law enforcement and the county district attorney’s office seeking records related to the gun used in the murder.

In December 2018, police arrested Ronald Seay in connection with Clark’s murder. Investigators allege Seay shot Clark more 11 times at close range, striking her in the face and head.

Police acknowledged Seay had a history of mental health issues, was known to harass library patrons and had several law enforcement encounters in California and Missouri over the years.

Despite this, Seay was able to legally purchase the gun allegedly connected to Clark’s murder in Missouri, authorities said.

Since the murder, Clark’s family has tried on numerous occasions to get records related to the purchase of the gun and other documents in the case.

“The information we’re seeking can help explain how Amber’s shooter was able to access a gun despite a well-documented history of mental illness involving threats of violence, contact with law enforcement, and aggressive behavior,” Amber Clark’s spouse Kelly Clark said in a statement. “Making this information available won’t bring Amber back, but by potentially exposing gaps in the system, it may help prevent someone else from going through what our family has.”

Both the Sacramento County District Attorney’s Office and the Sacramento Police Department have refused to turn over documents in the case, citing exemptions in California’s Public Records Act that allow withholding of investigatory records during ongoing criminal cases. In one instance, the Sacramento County District Attorney’s Office said federal law prevented the disclosure of certain firearms-related records that were being sought for disclosure.

But attorneys representing the Clark family say the records they’re seeking aren’t covered by the exemptions and should be released to the family, in part because an amendment to California’s constitution allows victims to obtain certain information about crimes.

Sacramento legal expert Mark Reichel told CBS13 News the lawsuit filed in state court could put the state’s victim’s bill of rights against federal exemptions.

“I don’t know what interest the federal government would have to override a Californian constitutional amendment, giving the victims the right to know this type of information,” Mark said, adding that the case was unusual because the county prosecutor’s office typically tries to appear “very victim-friendly.”

As of Wednesday, the Sacramento Police Department and Sacramento County District Attorney’s Office had not formally responded to the lawsuit.

Seay is currently awaiting trial in the case.

Click here to read the full story from CBS13 News

Guilty plea expected in case of Golden State Killer, East Area Rapist suspect Joseph DeAngelo

Joseph DeAngelo, the man arrested in 2018 on suspicion of a string of kidnappings, rapes and murders stemming from his time as a police officer in the 1970s and 1980s, is expected to formally enter a guilty plea to some of those charges during a court hearing on Monday.

But the hearing won’t happen in a typical courtroom. Instead, prosecutors have announced the hearing will take place inside a large ballroom at the California State University’s Sacramento campus.

Legal experts speculate the unusual move was made to accommodate more than 100 families and friends of the Golden State Killer and East Area Rapist’s victims, some of whom are expected to make impact statements during the hearing.

California criminal defense attorney and legal expert Mark Reichel told CBS13 News the decision to hold the hearing at CSU Sacramento makes sense because “this is a highly unusual case, probably the biggest case in California history.”

Under normal circumstances, a judge would allow a certain number of victims, members of the public and news reporters into the courtroom to observe a hearing, then provide an overflow space for anyone else who wanted to attend.

Courts have been forced to modify their operating procedures in the wake of the global health crisis brought on by the novel coronavirus COVID-19.

“I think it is driven by the [coronavirus] epidemic,” Reichel said in another interview with FOX40 News. “Normally, they would allow a certain amount of people in the courtroom.”

To ensure those who want to attend in person can, the ballroom at CSU Sacramento was selected so that court officials could accommodate the family and friends while attempting to adhere to social distancing rules and other guidelines that have been put in place in public spaces throughout California.

No matter where the hearing takes place, Mark hopes a guilty plea will spare victims the experience of having to go through a lengthy trial.

“Now we have a guilty plea, I think that’s what’s going to happen. We have a guilty plea. We have a guilty finding,” Mark said. “No more trial. No more guessing. No more speculation. No more fighting. That type of finality is probably good for everyone.”

What is qualified immunity, and why does it make prosecuting police officers hard?

As the debate over how to achieve police reform continues in the United States following the in-custody death of Minneapolis man George Floyd, a little-known legal defense known as qualified immunity has come to light, adding another element to an already-vibrant national dialogue.

Qualified immunity is a strong civil defense for law enforcement officers and other government agents that protects them from civil lawsuits and other types of litigation for a decision that officer or agent made through their position or job.

While there are some exceptions, including for gross misconduct, qualified immunity is generally a broad defense that for years has successfully prevented officers and agents from being sued because something happened in connection with their job.

The Federal Law Enforcement Training Centers (FLETC), a government agency within the federal U.S. Department of Homeland Security, says the rationale behind qualified immunity “permits officers to perform their duties without fear of constantly defending themselves against insubstantial claims for damages” while allowing members of the public to “recover damages when a reasonable officer would know that the officer unreasonably violated a plaintiff’s constitutional or federal civil rights.”

But proving that violation of a person’s civil rights has proven to be exceptionally hard in court as prior lawsuits have shown.

Take the case of Shaniz West, an Idaho woman who sued after allowing officers to enter her home so they could arrest her ex-boyfriend. Instead of just walking into the home and taking her ex-boyfriend into custody, police lobbed tear gas canisters through the home’s window and other points of entry.

Despite Shaniz giving officers the keys to her home, they never tried it. And when they eventually did make entry, they realized the ex-boyfriend, who was wanted on firearms charges, wasn’t inside. They destroyed Shaniz’s property, coating the inside of her home’s walls with toxic residue left over from the tear gas and making her home inhabitable.

Shaniz sued the police chief, a police sergeant and the town of Caldwell, Idaho in what became known as West v. Winfield. The lawsuit sought to make Shaniz whole by forcing the town to pay for the damage done to her home.

But the town and the officers said they weren’t responsible for the damage because, even though Shaniz had given them the keys to her home and invited them in, their force was justifiable and they were protected through qualified immunity.

“If you sue (to hold an officer accountable in civil court,) you have to prove that there’s a case, on point, in your jurisdiction of an appellate court that’s supervising it all — not just a trial court decision, but a higher-level appellate court that says those exact facts are illegal to do to someone,” Sacramento criminal defense attorney told ABC10 during a recent interview.

Shaniz appealed to the federal Ninth Circuit Court of Appeals, but appellate judges there said there wasn’t any case law to support her claim. She further appealed to the Supreme Court, where her case was one of several that the Supreme Court justices declined to hear.

With the Supreme Court unwilling to hear those cases, it’s now up to Congress or state lawmakers to limit the applicability of qualified immunity in cases involving police officers and other public officials.

At least one state has done just that: On Friday, Colorado Governor Jared Polis signed a landmark police reform bill that, among other things, made police officers personally liable for up to $25,000 in damages if they are found to have violated civil rights during encounters with the public.

The new law also says officers could be subject to criminal liability if they do not follow a strict set of rules regarding how they use agency-issued body cameras. Under the law, police officers in Colorado must always keep body cameras on, unless they need to avoid recording personal information that is not related to a case or if there is “a long break in the incident (or) in administrative, tactical and management decisions.”

In the House of Representatives, a bi-partisan bill was recently introduced called the “Ending Qualified Immunity Act” that would curb the use of that defense at a federal level — something that could have major implications across the country.

The bill, introduced by Reps. Ayanna Pressley of Massachusetts and Justin Amash of Michigan, would amend U.S. Code 42, Section 1983 to “explicitly state that the qualified immunity doctrine…does NOT provide police officers (who) brutalize or otherwise violate civil rights with defense or immunity from civil liability for their actions,” according to a press release.

“Qualified immunity shields police from accountability, impedes true justice, and undermines the constitutional rights of every person in this country,” Rep. Pressley said in a statement. “It’s past time to end qualified immunity.”

Tanya Faison, a founding member of Black Lives Matter Sacramento, agrees.

“There should be clear cut and dry instructions, rules, rights, everything should be very clear cut and dry,” Faison told ABC10 in an interview. “Not subjective. Not easily manipulated.”

Click or tap here to read the full story from ABC10 Sacramento