L.A. Sheriff Asks 9th Circuit for Immunity in Warrants Fiasco

     PASADENA, Calif. (CN) - An attorney for Los Angeles Sheriff Leroy Baca on Thursday urged the 9th Circuit to grant immunity to the sheriff in a federal class action that claims thousands of people have been falsely arrested on warrants for other people.
     Lead plaintiff Reginald Lenard Smith in 2011 sued Los Angeles County Sheriff's Department, Baca and the LAPD, for failure to train officers how to access unique identifying numbers on computer systems to determine the subjects of arrest warrants.
     California's unique identifiers are called CII numbers, while Los Angeles County uses LA Main numbers. The numbers match biometric identifiers to fingerprints. Like fingerprints, no two people have the same biometric identifier.
     Smith claimed that in 2007 he found himself shipped off to the Los Angeles County jail after he was stopped by police in Antioch, Tenn., for a minor traffic violation and mistaken for a different Reggie Smith.
     Smith's namesake had an outstanding arrest warrant for failing to appear in court to face sexual battery charges. Smith shared the same name and birthday as the subject of the warrant. Both men are black.
     Authorities sent Smith to the Los Angeles County jail, where he was held for 13 days before a state court judge ordered his release on Aug. 28, 2007. Though the Superior Court reissued the warrant, officials did not make clear that Smith was not the subject of the warrant, Smith said. Nor did officials include Smith's biometric numbers on the warrant.
     In early 2011, Smith was arrested on the same warrant. That year, the federal government denied his passport application, believing that he was the warrant's subject.
     Once an arrest is made, Smith said, the warrant is often removed from information systems used to check for outstanding warrants.
     "So if the wrong person is arrested on the warrant, the warrant's intended subject will no longer face arrest on the warrant. In other words, because of defendants' indifference criminals get a free pass," the lawsuit states.
     Smith estimated that thousands of people were affected. An average of two people a day are released from county custody because of defective warrants, he claims in the lawsuit.
     He asked the court to order county officials exclude people from warrants after they have been cleared. He also sought an order requiring the county to train its personnel to include identifiers from other agencies, record aliases for the subject of the warrant, and include the names, birthdates, and fingerprint identifiers of those who are cleared.
     U.S. District Judge Gary Allen Feess ruled on Sept. 11, 2012 that Smith had failed to make clear that the warrants are invalid under the Fourth Amendment. But he also found that Smith's civil rights under the 14th Amendment may been violated because he was unable to secure a U.S. passport.
     The judge therefore denied Sheriff Baca's request for qualified immunity.
     On Thursday morning at the 9th Circuit courthouse, Baca's attorney Scott Caron, with Glendale firm Lawrence Beach Allen & Choi, asked the court to reverse.
     In an opening brief to the court, Caron had argued that Feess' ruling "sets a higher standard" on what information should be listed on an arrest warrant under the particularity requirement of the Fourth Amendment.
     "The Fourth Amendment particularity requirement would become a dead letter, and take a perpetual back seat to Fourteenth Amendment procedural due process," Caron argued in his brief .
     But the three-judge panel was troubled that a misidentified person could face arrest on the same warrant multiple times.
     Judge Conseulo Maria Callahan said it didn't make sense that a person could be arrested "ad infinitum" and that Baca could "hide behind qualified immunity."
     "If you get the wrong person 10 times, then that warrant is still good, even though this poor mope, who is not that guy, gets arrested 10 times?" Judge Callahan asked Caron.
     Caron said that under the Fourth Amendment the warrant is sufficient because it rules out "most people as potential subjects of the warrant."
     Judge Kim McLane Wardlaw was incredulous.
     "Are you seriously arguing that the L.A. Sheriff's Department, aware of this problem, has no plans to change it because you're going to hide behind this prevailing law?" Wardlaw asked.
     Caron said the sheriff's department policy was to update exoneration information on warrants.
     "Well, Mr. Smith's warrant wasn't updated," Wardlaw shot back.
     The court should still grant immunity to Baca because it was the U.S. government, a third party, that denied Smith a passport, and he can appeal the decision, Caron argued in the brief.
     Smith's attorney Donald Cook argued that the Fourth and 14th Amendment claims are "intertwined," and urged the court to find Baca liable for not updating arrest warrants to avoid misidentification.
     Judge Callahan wondered how Cook could persuasively argue that "every bad thing that happens to somebody is because there's something faulty in that system." Though not specifically citing Smith's passport application, she said that third parties may have "due process in place" to handle challenges.
     Cook said he didn't know the in and outs of administrative procedures. But "what we do know is that at the very first door of this process the system is set up to cut things off at the path," he said.
     "You have to have procedures in place to prevent this kind of wrongful identification," Cook said. "Because, again, we all know it can have many collateral consequences. The most obvious one, of course, is incarceration. But that's not the only one.
     "This is not just a case of, 'Gee, he didn't get a passport.' This is a case of not using a simple, costless procedure.
     "What it's about is not utilizing this system - basically, operating like you're still in the 19th and 18th century, even though you've got 20th and 21st century technology there. It's really frustrating."
     "There's a lot of things that are frustrating about the sheriff's department," Judge Wardlaw interjected.
     Cook and Caron in April argued before the appeals court in a related case, dealing with lack of biometric identifiers on arrest warrants.
     In that case, Cook represents Smith and additional plaintiffs Kelvin Gant and Jose Ventura in a class action against Los Angeles and Chino, and LA and San Bernardino counties, and their police and sheriff departments.
     Gant claimed he was arrested several times on a warrant meant for his fraternal twin brother. Ventura claimed he was arrested under a warrant for another person after a traffic stop.
     In Gant, Cook urged the court to reverse U.S. District Judge Gary Feess' 2011 order, granting the defendants summary judgment.
     During his reserve time on Thursday, Caron said the court should wait and see how the 9th Circuit rules in Gant before deciding the Fourth Amendment issue in Smith's case, noting that Smith had brought a particularity claim under the same warrant in both cases.
     Judge Milan Smith joined Wardlaw and Callahan on the panel.