From this morning's Ninth Circuit decision in O.L. v. Jara, by Judges Bridget Bade and Kenneth Kiyul Lee, joined by Judge Kathleen Cardone (W.D. Tex.):
Plaintiff-Appellant "O.L." sued, claiming that officers at the City of El Monte Police Department (EMPD) and Los Angeles Sheriff's Department (LASD) mishandled their investigations of her claim of rape….
O.L. met her alleged assailant online and went on a date with him. She claimed that he raped her later that night, and she reported it to the EMPD. O.L. showed Officer Martha Tate messages on her cell phone between herself and the alleged assailant. In those messages, O.L. casually discussed the sexual activity that occurred the night of the alleged rape and agreed to meet him again for a future sexual encounter. 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. showed Detective Jara the same messages on her cell phone. Detective Jara also saw a message in which O.L. told the alleged assailant that she "could make him lose his job" after she discovered that he had remained active on the online dating website where they met. The detective, too, questioned O.L. about her motive for reporting the alleged crime and ultimately told O.L. that her case suffered from many problems.
At the end of the interview, O.L. agreed to provide her cell phone to LASD to download messages. O.L. provided Detective Jara with her cell phone password and signed a form giving LASD consent to search the phone for "any and all data" related to the case. Before returning the phone to her, LASD's task force downloaded the phone's data onto a USB drive to allow the investigating officer to review the data.
O.L. then retrieved her cell phone from LASD custody.
After the Los Angeles District Attorney declined to file charges against the alleged assailant, O.L. filed a pro se complaint. The district court denied O.L.'s request to proceed under a pseudonym, and O.L. filed an amended complaint replacing "Jane Doe" with her supposed initials. The district court dismissed the equal protection and Monell claims, and then granted summary judgment for defendants on the Fourth Amendment claim….
[1.] Fourth Amendment Claim: O.L. argues that Detective Jara unlawfully searched her phone and that LASD's copying of data from her phone amounted to an illegal seizure.
First, O.L. has not shown that Detective Jara violated her Fourth Amendment right against unreasonable searches. O.L.'s only evidence that her phone was searched is a screenshot image of a single message on her phone from a friend that was translated from Chinese into English in her WeChat App. She claims that the message was translated while the phone was in LASD's custody, but the screenshot she provided does not show when the translation happened. O.L. cannot create a factual dispute by speculating that Detective Jara searched the phone and translated the message. See Loomis v. Cornish (9th Cir. 2016) ("[M]ere allegation and speculation do not create a factual dispute for purposes of summary judgment.").
In any event, O.L. consented to the search. She admits to signing a form when she voluntarily gave her cell phone and its password to Detective Jara. O.L.'s signature is on a form called "Entry and Search Waiver," which is dated that same day. The form gave LASD "full and unconditional authority," and "unrestricted access" to search O.L.'s cell phone. O.L. maintains that she did not sign this form, but she has abandoned the argument that her signature was forged by failing to challenge the district court's finding on appeal. The only plausible inference is that O.L. signed the search waiver form when she gave her cell phone to Detective Jara. See Scott v. Harris (2007) ("When opposing parties tell two different stories, one of which is blatantly contradicted by the record, so that no reasonable jury could believe it, a court should not adopt that version of the facts for purposes of ruling on a motion for summary judgment.").
Second, qualified immunity bars her unlawful seizure claim because it is not clearly established that copying electronic data for review after voluntarily agreeing to a search amounts to a Fourth Amendment violation. In Arizona v. Hicks (1987), the Supreme Court held that the police copying down the serial numbers on stereo equipment "did not constitute a seizure" because "it did not meaningfully interfere with respondent's possessory interest in either the serial numbers or the equipment." While the nature of cell phone data is different than serial numbers on a stereo, it is unsettled as to how far the "possessory interest" principle extends.
O.L.'s reliance on United States v. Comprehensive Drug Testing, Inc. (CDT) (9th Cir. 2010) (en banc) is misplaced. In that case, the court authorized the federal government to seize "considerably more data than that for which it had probable cause," subject to certain procedural safeguards. The government, however, ignored the required protocols, seized large amounts of data, and later justified its retention of the seized data under the "plain view" doctrine. On appeal, we cautioned against the government retaining unresponsive data based on the plain view doctrine. We, however, recognized that "over-seizing is an inherent part of the electronic search process." CDT does not put it beyond debate that law enforcement making a temporary local copy of cell phone data while consensually possessing the phone constitutes an unlawful seizure.
[2.] Equal Protection Claim: To state an equal protection claim under § 1983, O.L. must plausibly allege facts showing that "the defendants acted with an intent or purpose to discriminate against [her] based upon membership in a protected class." She does not allege facts showing that the officers treated her investigation differently than other criminal investigations. For example, she alleges that Officer Tate asked O.L.: "What made her think she was a victim of rape." The Second Amended Complaint then simply concludes that "[v]ictims of other type[s] of crimes would not be asked the same question." "Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements," however, "do not suffice." …
{O.L. has filed similar cases in other courts involving different individuals and municipalities. See, e.g., Doe v. City of Concord, No. 22-15384 (9th Cir. docketed March 15, 2022); Doe v. U.S Dist. Ct. for the Cent. Dist. of Cal., No. 22-70056 (9th Cir. denied April 19, 2022). In those other cases, as here, she proceeds either as Jane Doe or by initials (which may or may not be her own). While O.L. makes it difficult to track her cases because she uses initials or pseudonyms, we caution that "[f]lagrant abuse of the judicial process cannot be tolerated because it enables one person to preempt the use of judicial time that properly could be used to consider the meritorious claims of other litigants."}
I should also add that, based on my own research in a different case involving the same plaintiff, "O.L." has indeed been involved in still more somewhat similar cases; and in one case involving a relationship gone bad, a court concluded that she had been guilty of domestic violence, and concluded that she had been "evasive" in her testimony.
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