CPCA Magazine Article – Courts Listen to CPCA


By: Martin J. Mayer, General Counsel

California Police Chiefs’ Association

The California Police Chiefs’ Association (CPCA) is well known for its legislative advocacy and the fact that its opinions are considered and respected in Sacramento. What might not be as well known is the extent of CPCA’s legal advocacy through the submission of amicus curiae briefs to state and federal courts, in support of law enforcement issues.

The term “amicus curiae” literally means “friend of the court.” It is a brief filed by a person or an entity, who is not a party to the litigation, but who believes that the court’s decision may affect its interest and not just the interest of a party. In fact, Rule 37(1), of the Rules of the Supreme Court of the U.S. states that “an amicus curiae brief [is one] that brings to the attention of the Court relevant matter not already brought to its attention by the parties [which] may be of considerable help to the Court. An amicus curiae brief that does not serve this purpose burdens the Court, and its filing is not favored.”

Amicus briefs are important because they can bring to the court’s attention legal arguments and perspectives different from the parties’ views. Such briefs may, for example, help the justices see the larger effects of potential rulings. An amicus curiae is usually an organization, such as CPCA, although it may be an individual. As general counsel to CPCA we are frequently asked by cities, counties, or specific law enforcement agencies to submit an amicus brief from the police chiefs supporting a particular issue. We have also presented oral argument to the California Court of Appeal, as well as to the California Supreme Court.

Over the years, CPCA has been actively involved in supporting a number of various law enforcement issues through the submission of amicus briefs. The preparation of such briefs is very labor intensive, involving reviewing and analyzing the briefs of the parties, including the cases cited by them, and then developing and drafting a brief which does not merely reiterate the arguments set forth by the party being supported. As the Supreme Court noted above, if the amicus brief doesn’t provide the court with an additional and different perspective, it is not of benefit to the court and will be rejected.

In this year alone, CPCA’s voice was heard in advocating for the court to grant qualified immunity to a police chief who was “doing her job,” despite the demand by an officer suing her that she have personal liability for her actions; defending an officer’s use of deadly force when circumstances called for such action and arguing that he be granted qualified immunity; and defending the legitimacy of California’s Proposition 69, passed in 2004, which allows the taking of DNA samples from felony arrestees.

Ellins v. City of Sierra Madre

The underlying question in this case was whether the refusal, by Police Chief Marilyn Diaz, to certify an applicant’s good moral character, while he was the subject of a criminal investigation, was conduct which constituted a First Amendment violation due to his being a union officer? A United States District Judge concluded that Police Chief Diaz’s conduct did not violate a clearly established constitutional right. Unfortunately, a three judge panel of the Ninth Circuit U.S. Court of Appeal decided that the constitutional violation was so apparent that a reasonable person should have been aware that the conduct was unlawful.

The City of Sierra Madre requested amicus support from CPCA, which would be submitted to an en banc panel (consisting of 11 members of the court) of the Ninth Circuit, and the board of directors approved the request. A primary part of the argument by CPCA was that the ruling necessarily meant that the three judge panel was demanding that the police chief have a firmer grasp of the nuances of federal constitutional law than that possessed by a federal district judge who had ruled in her favor. If Chief Diaz could be denied qualified immunity on that basis, so could any law enforcement officer in the state.

CPCA presented argument to the court setting forth how such a decision was contrary to law, and would negatively impact police chiefs throughout the state.

The brief was submitted in May, 2013, and we are awaiting the court’s decision on the underlying issue.

Markgraf v. A.D.

The Markgraf case involved a California Highway Patrol Officer’s use of deadly force, following a high speed chase across the Golden Gate Bridge and through the streets of San Francisco, ending in a cul-de-sac. After being blocked in by two CHP vehicles, the driver crashed her car into the police units three times in an effort to flee. Officer Markgraf approached her on foot, directed her to turn off the engine and get out of her car, and she responded with profanities and continued her efforts to escape. At that time, believing two CHP officers were standing behind her car, and fearing that she would again attempt to smash through the units, and possibly hit the officers, he fired his weapon, striking and killing her.

Following a trial before a federal jury, the district court judge failed to consider the issue of qualified immunity before submitting the case to the jury, and the jury concluded that there was “no legitimate law enforcement purpose” behind Markgraf’s use of deadly force.

Following a request from the Office of the Attorney General, and the CHP, the CPCA board of directors approved the preparation of, and submission of, an amicus brief to the United States Supreme Court urging it to accept the case for review. The focus of the brief was that the “the Ninth Circuit’s decision directly conflicts with relevant decisions of [the Supreme] Court relating to the objective standard applicable to an officer’s exercise of discretion is the use of force in an apprehension or arrest, and in the application of qualified immunity to such actions.”

We argued further that “fundamental ways in which the Ninth Circuit’s published opinion goes awry is in its application of a subjective standard and its wholesale reliance on the jury’s verdict, without giving proper regard to the objective standards applicable to the underlying due process constitutional claim that is at issue.”

That finding was put into the hands of the jury, but is a determination that should have been made by the court. Additionally, we argued, that a legitimate law enforcement objective was, obviously, present in this case.

The brief was submitted to the U.S. Supreme Court in mid October, 2013 and we are waiting for the Court to decide whether or not to grant review.

Haskell v. Harris

Following a U.S. Supreme Court decision, Maryland v. King, that taking DNA from those arrested for “serious crimes” was constitutional, the Ninth Circuit U.S. Court of Appealupheld California’s law, regarding taking DNA from felony arrestees, in the case of Haskell v. Harris. Following the three judge panel’s decision, the ACLU petitioned for an en banc rehearing. That petition was granted and the Office of the Attorney General asked CPCA to assist with the submission of an amicus brief.

The brief was submitted in an effort to support the constitutionality of California’s Proposition 69, which authorizes the taking of DNA samples from felony arrestees. It was noted, in the amicus brief, that “Plaintiffs-Appellants make much of the fact that the Supreme Court used the phrase “serious offense” repeatedly in King, without definition, and ask the en bancpanel to adopt the argument that certain felonies are not serious offenses.”

We submitted to the court that “felonies are, by definition, serious offenses, as evidenced by the fact that the conviction of a felony results in the loss of substantial state and federal rights.”

Furthermore, we noted that “the Court specifically observed that a failure to swab all felony arrestees had caused violent felons to be released into society simply because the crime they had been arrested for most recently was a non-violent felony.”

This brief was just filed with the en banc panel on October 28, 2013 and oral argument will be heard in December.


The ability to submit amicus briefs provides California municipal police chiefs with a unique opportunity to speak out on behalf of issues important to law enforcement. It has been noted that few amicus briefs are accepted by state and federal appellate courts.  However, we have submitted amicus briefs to the California Courts of Appeal, the California Supreme Court, the Ninth Circuit U.S. Court of Appeal, and the United States Supreme Court and, in each case, the Courts have accepted and considered the amicus briefs from CPCA.

The observations of CPCA, as articulated in the amicus briefs, have frequently be cited by the courts in their published opinions. Advocacy, whether on legislative matters or in court litigation, is a significant contribution by CPCA in helping to shape the law enforcement landscape in California and, hopefully, will continue into the future.

Martin J. Mayer is a name partner with the public sector law firm of Jones & Mayer and has served as General Counsel to the California Police Chiefs’ Association for approximately 30 years.