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Case Name Farrow v. Lipetzky CJ-CA-0013
Docket / Court 3:12-cv-06495 ( N.D. Cal. )
State/Territory California
Case Type(s) Criminal Justice (Other)
Case Summary
On December 12, 2012, two inmates filed suit against the Contra County Office of the Public Defender in the U.S. District Court for the Northern District of California, via private counsel. The inmates brought suit against the public defender in her official capacity on behalf of themselves and ... read more >
On December 12, 2012, two inmates filed suit against the Contra County Office of the Public Defender in the U.S. District Court for the Northern District of California, via private counsel. The inmates brought suit against the public defender in her official capacity on behalf of themselves and criminal defendants similarly situated. The written policy of the Contra County Office of the Public Defender (PD) allowed PDs to refrain from representing detained indigent criminal defendants (at both the felony and the misdemeanor level) during their first court appearance. Instead of making an attorney readily available to handle arraignment for indignant defendants, the public defender would have courts automatically postpone arraignment and refer the matter to the PD's Office. The postponements would be for an arbitrary period (typically between 5 and 13 days) that was neither connected to particular needs of the PD's Office nor mindful of the exigencies of the defendants' case. During that period defendants remained in jail, and this practice delayed entry of the plea and re-examination of bail or release on recognizance to the next court appearance.

The plaintiffs argue that defendant's policy is unconstitutional because counsel is required at all critical stages, and arraignment is a critical stage in California. The plaintiffs sought nominal damages under 42 U.S.C. § 1983 for violations of their constitutional rights under the color of state law, damages under California's Civil Rights Act for denial of statutory speedy trial rights, a declaration of the illegality of the PD Office's policy, and an injunction against the policy in accordance with their claims and to enforce California Government Code § 27706. They also sought attorneys' fees and punitive damages. The plaintiffs alleged violations of their Sixth Amendment right to the assistance of counsel and Fourteenth Amendment right to due process with respect to statutory speedy trial rights (on procedural and substantive grounds) and with respect to application for bail or release on recognizance (on procedural grounds).

At some point during the progression of this case the public defender changed her policy for indigent defendants detained on felony charges to allow for representation at the first appearance, but has not changed the policy for misdemeanor defendants. The case was referred to Magistrate Judge Jacqueline Scott Corley for settlement on April 29th, 2013, but no settlement occurred.

On May 8th, 2013, the Judge Joseph C. Spero granted the public defender's motion to dismiss but gave the plaintiffs leave to amend the complaint. The decision was based in part on failure to state a claim, in part on vagueness about the legal basis for certain details of the claims, and in part on a failure to allege enough facts (such as particular harm or prejudice in the plaintiffs' criminal cases caused by the delay) to present a facially plausible rather than speculative claim to relief under the standards set forth in Bell Atlantic Corp. v. Twombly and Ashcroft v. Iqbal. 2013 WL 1915700 (N.D. Cal. 2013).

On May 13th, 2013, plaintiffs filed an amended complaint, which was amended again on May 31st, 2013. The complaint proceeds on all the same charges as the original 2012 complaint, but presents further detail on the legal basis for the claims and alleges more particular facts regarding the effect of the delay on plaintiffs, such as the addition of charges, exclusion of positive information from bail reports, and prevention of timely interviewing of witnesses. On August 7, 2013, the court granted the defendant's motion to dismiss with prejudice all federal claims (the due process and equal protections claim), but declined to exercise jurisdiction over the plaintiffs' state law claims, which were dismissed without prejudice. Judge Spero ordered the case closed on August 30, 2013.

On September 3, 2013, the plaintiffs appealed to the Ninth Circuit. On December 7, 2015, the Court of Appeals affirmed in part and reversed in part, remanding it back to the District Court. The Ninth Circuit held that the district court did not err in dismissing the due process claim because the plaintiffs had not adequately pleaded, and nor did the court err in dismissing the plaintiffs' equal protection claim. The court did not find the defendant's policy unconstitutional and cited Ross v. Moffitt, 417 U.S. 600, 616 (1974) which held that although the assistance of counsel at the initial appearance “might be of benefit to an indigent defendant does not mean that the service is constitutionally required.” But, the Ninth Circuit held that the district court erred in dismissing the Sixth Amendment claim because counsel was to be appointed at a reasonable time and it was an open question as to when the delay became constitutional significant. The district court did not address the question of whether the delay was unreasonable, but considered only whether the delay “impacted [plaintiff’s] representation at subsequent critical stages of his proceedings.” The Ninth Circuit reversed and remanded not only this federal claim but also the state law claims. 637. Fed. Appx. 986. The defendant filed for a writ of certiorari from the Supreme Court, but it was denied on October 3, 2016.

The plaintiffs filed a third amended complaint pursuant to the Ninth Circuit's ruling on November 16, 2016 and the defendant promptly filed a motion to dismiss. A hearing was held on the motion on January 20, 2017.

As of February 2, 2017, the case is still ongoing.

Kenneth Gray - 06/12/2013
Abigail DeHart - 02/06/2017

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Issues and Causes of Action
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Constitutional Clause
Assistance of counsel (6th Amendment)
Due Process
Equal Protection
Access to lawyers or judicial system
Timeliness of case assignment
Plaintiff Type
Private Plaintiff
Causes of Action 42 U.S.C. § 1983
State law
Defendant(s) Contra Costa County
Plaintiff Description Indigent criminal defendants who, upon invoking their right to counsel, are forced to continue their cases and remain in custody for 5 or more days because of the policy of the Public Defender of Contra Costa County.
Indexed Lawyer Organizations None on record
Class action status sought Yes
Class action status granted Yes
Prevailing Party None Yet / None
Public Int. Lawyer No
Nature of Relief None yet
Source of Relief None yet
Form of Settlement None on record
Order Duration not on record
Case Closing Year n/a
Case Ongoing Yes
Additional Resources
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Links Philadelphia Forfeiture
By: Institute for Justice (Institute for Justice)
[ Detail ]

3:12-cv-6495 (N.D. Cal.)
CJ-CA-0013-9001.pdf | Detail
Date: 02/03/2017
Source: PACER [Public Access to Court Electronic Records]
General Documents
Class Action Complaint and Demand for Jury Trial
CJ-CA-0013-0001.pdf | Detail
Date: 12/21/2012
Source: PACER [Public Access to Court Electronic Records]
Order Granting Defendant's Motion to Dismiss the Complaint Without Prejudice (2013 WL 1915700) (N.D. Cal.)
CJ-CA-0013-0002.pdf | WESTLAW | Detail
Date: 05/08/2013
Source: PACER [Public Access to Court Electronic Records]
Second Amended Complaint, Class Action, Demand for Jury Trial
CJ-CA-0013-0003.pdf | Detail
Date: 05/31/2013
Source: PACER [Public Access to Court Electronic Records]
Defendant Robin Lipetzky's Motion to Dismiss Second Amended Complaint, Memorandum in Support of Motion to Dismiss
CJ-CA-0013-0005.pdf | Detail
Date: 06/13/2013
Source: PACER [Public Access to Court Electronic Records]
CJ-CA-0013-0004.pdf | Detail
Date: 01/08/2016
Source: PACER [Public Access to Court Electronic Records]
Third Amended Complaint
CJ-CA-0013-0006.pdf | Detail
Date: 11/16/2016
Source: PACER [Public Access to Court Electronic Records]
Judges Corley, Jacqueline Scott (N.D. Cal.) [Magistrate]
Spero, Joseph C. (N.D. Cal.) [Magistrate]
CJ-CA-0013-0002 | CJ-CA-0013-0004 | CJ-CA-0013-9001
Monitors/Masters None on record
Plaintiff's Lawyers Dietrick, Michael Emery (California)
CJ-CA-0013-0001 | CJ-CA-0013-0003 | CJ-CA-0013-0003 | CJ-CA-0013-0006 | CJ-CA-0013-9001
Martin, Christopher Alan (California)
CJ-CA-0013-0001 | CJ-CA-0013-0003 | CJ-CA-0013-0003 | CJ-CA-0013-0006 | CJ-CA-0013-9001
Defendant's Lawyers Baker, D. Cameron (California)
CJ-CA-0013-0005 | CJ-CA-0013-9001
Other Lawyers None on record

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