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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 individual plaintiffs filed suit against Contra Costa County (California) and its Office of the Public Defender, in the U.S. District Court for the Northern District of California. Represented by private counsel, the plaintiffs sought to represent a class of indigent ... read more >
On December 12, 2012, two individual plaintiffs filed suit against Contra Costa County (California) and its Office of the Public Defender, in the U.S. District Court for the Northern District of California. Represented by private counsel, the plaintiffs sought to represent a class of indigent criminal defendants who had received inadequate representation from the Public Defender. The case was assigned to Judge Joseph C. Spero.

The written policy of the Office of the Public Defender provided for indigent people accused of crimes (either felony or misdemeanor) to appear alone at their first court appearance. The court would then refer the criminal defendant to the Office of the Public Defender, and postpone the arraignment for an arbitrary period (typically five to thirteen days), not based on the needs of the Public Defender or the exigencies of the particular defendant’s case. During that period, the person remained in jail, and opportunities for bail or other release were delayed until the postponed arraignment.

The plaintiffs in this case argued that the Public Defender’s policy was unconstitutional because counsel is required at all critical stages, including the initial court appearance. They alleged violations of their Sixth Amendment right to the assistance of counsel and their Fourteenth Amendment right to due process (procedural due process with respect to bail or other release, and both procedural and substantive with respect to statutory speedy trial rights). They sought a declaration of the policy’s illegality and an injunction to block the policy and compel the Public Defender to perform the duties required by California Government Code § 27706. They also sought nominal damages under 42 U.S.C. § 1983 for violations of their constitutional rights, damages under the California State Civil Rights Act for denial of their statutory speedy trial rights, and attorneys’ fees and punitive damages.

During the pendency of this case, the Public Defender changed the contested policy as regarding people charged with felonies, allowing for representation at their first court appearance, but the policy remained unchanged for misdemeanor defendants. The case was referred to Magistrate Judge Jacqueline Scott Corley for settlement negotiations, but a settlement was never reached.

On May 8, 2013, the court granted the Public Defender’s motion to dismiss, because the plaintiffs had pleaded insufficient facts to state a claim for relief, and because of vagueness in the plaintiffs’ legal reasoning. The plaintiffs filed an amended complaint on May 13, 2013, and another on May 31. These amended complaints contained more developed legal reasoning, and alleged more particular facts regarding the ways that the delays had affected them. These effects included additional charges brought against the plaintiffs, exclusion of positive information from their bail reports, and loss of opportunity to interview witnesses.

On August 7, 2013, the court granted the Public Defender’s motion to dismiss all federal claims, with prejudice. The state claims were dismissed without prejudice, and the case was closed on August 30, 2013.

The plaintiffs appealed. More than 2 years later, on December 7, 2015, the Ninth Circuit affirmed the district court’s decision to dismiss the Fourteenth Amendment claims (the plaintiffs appealed this decision to the Supreme Court, which did not hear their appeal). However, the Ninth Circuit reversed as to the dismissal of the Sixth Amendment claims. The Sixth Amendment, the court held, required that counsel be appointed at a reasonable time, and it was not clear how long of a delay would be constitutionally unacceptable. Because the district court had not considered this question before dismissing the claims, the Ninth Circuit remanded.

On remand in the district court, the plaintiffs filed another amended complaint. On April 28, 2017, the court dismissed the plaintiffs’ claim that the Public Defender had failed to provide counsel at a critical stage (namely the initial appearance), but declined to dismiss the Sixth Amendment claim of unreasonable delay.

The plaintiffs moved for summary judgment on November 22, 2017, followed by a motion for summary judgment by the Public Defender. The court granted the Public Defender’s motion, granting summary judgment on the Sixth Amendment claims on January 2, 2019. The court also dismissed the plaintiffs’ remaining California law claim for lack of subject matter jurisdiction, allowing the plaintiffs to bring that claim in a California court. On January 31, 2019, the plaintiffs appealed to the Ninth Circuit, which affirmed the district court’s ruling on March 30, 2020. The plaintiffs’ petition for rehearing in the Ninth Circuit was denied, but that court stayed its ruling pending an appeal to the Supreme Court. As of July 25, 2020, the plaintiffs have not yet filed that appeal.

Kenneth Gray - 06/12/2013
Abigail DeHart - 02/06/2017
Keagan Potts - 03/18/2019
Gregory Marsh - 07/25/2020


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Issues and Causes of Action
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Issues
Constitutional Clause
Assistance of counsel (6th Amendment)
Due Process
Equal Protection
Defendant-type
Jurisdiction-wide
General
Access to lawyers or judicial system
Bail/Bond
Fines/Fees/Bail/Bond
Over/Unlawful Detention
Quality of representation
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 five or more days because of the policy of the Public Defender of Contra Costa County.
Class action status sought Yes
Class action status granted No
Filed Pro Se No
Prevailing Party Defendant
Public Int. Lawyer No
Nature of Relief None
Source of Relief None
Filed 12/12/2012
Case Ongoing Yes
Additional Resources
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Court Docket(s)
N.D. Cal. 3:12-cv-6495
CJ-CA-0013-9001.pdf | Detail
Date: 03/14/2019
Source: PACER [Public Access to Court Electronic Records]
General Documents
N.D. Cal.
Class Action Complaint and Demand for Jury Trial [ECF# 1]
CJ-CA-0013-0001.pdf | Detail
Date: 12/21/2012
Source: PACER [Public Access to Court Electronic Records]
N.D. Cal.
Order Granting Defendant's Motion to Dismiss the Complaint Without Prejudice [ECF# 45-1] (2013 WL 1915700)
CJ-CA-0013-0002.pdf | WESTLAW | Detail
Date: 05/08/2013
Source: PACER [Public Access to Court Electronic Records]
N.D. Cal.
Second Amended Complaint, Class Action, Demand for Jury Trial [ECF# 55]
CJ-CA-0013-0003.pdf | Detail
Date: 05/31/2013
Source: PACER [Public Access to Court Electronic Records]
S.D. Cal.
Defendant Robin Lipetzky's Motion to Dismiss Second Amended Complaint, Memorandum in Support of Motion to Dismiss [ECF# 56]
CJ-CA-0013-0005.pdf | Detail
Date: 06/13/2013
Source: PACER [Public Access to Court Electronic Records]
U.S. Court of Appeals
Memorandum Opinion (637 Fed.Appx. 986)
CJ-CA-0013-0011.pdf | WESTLAW| LEXIS | Detail
Date: 01/08/2016
Source: Westlaw
U.S. Court of Appeals
Memorandum [Ct. of App. ECF# 45-1] (637 Fed.Appx. 986)
CJ-CA-0013-0004.pdf | WESTLAW| LEXIS | Detail
Date: 01/08/2016
Source: PACER [Public Access to Court Electronic Records]
N.D. Cal.
Third Amended Complaint [ECF# 91]
CJ-CA-0013-0006.pdf | Detail
Date: 11/16/2016
Source: PACER [Public Access to Court Electronic Records]
N.D. Cal.
Order Regarding Motion to Dismiss Third Amended Complaint [ECF# 107] (2017 WL 1540637)
CJ-CA-0013-0007.pdf | WESTLAW | Detail
Date: 04/28/2017
Source: PACER [Public Access to Court Electronic Records]
N.D. Cal.
Plaintiffs' Motion for Summary Judgment and Memorandum of Points [ECF# 125]
CJ-CA-0013-0008.pdf | Detail
Date: 11/22/2017
Source: PACER [Public Access to Court Electronic Records]
N.D. Cal.
Defendant Motion for Summary Judgment and Argument [ECF# 128]
CJ-CA-0013-0009.pdf | Detail
Date: 11/22/2017
Source: PACER [Public Access to Court Electronic Records]
N.D. Cal.
Order on Cross Motions for Summary Judgment [ECF# 145] (2019 WL 78839)
CJ-CA-0013-0010.pdf | WESTLAW | Detail
Date: 01/02/2019
Source: PACER [Public Access to Court Electronic Records]
show all people docs
Judges Corley, Jacqueline Scott (N.D. Cal.) [Magistrate] show/hide docs
CJ-CA-0013-9001
Fletcher, William A. (Ninth Circuit) show/hide docs
CJ-CA-0013-0011
Murguia, Mary Helen (D. Ariz., Ninth Circuit) show/hide docs
CJ-CA-0013-0011
Spero, Joseph C. (N.D. Cal.) [Magistrate] show/hide docs
CJ-CA-0013-0002 | CJ-CA-0013-0004 | CJ-CA-0013-0007 | CJ-CA-0013-0010 | CJ-CA-0013-9001
Wardlaw, Kim McLane (C.D. Cal., Ninth Circuit) show/hide docs
CJ-CA-0013-0011
Plaintiff's Lawyers Dietrick, Michael Emery (California) show/hide docs
CJ-CA-0013-0001 | CJ-CA-0013-0003 | CJ-CA-0013-0006 | CJ-CA-0013-0008 | CJ-CA-0013-9001
Martin, Christopher Alan (California) show/hide docs
CJ-CA-0013-0001 | CJ-CA-0013-0003 | CJ-CA-0013-0006 | CJ-CA-0013-0008 | CJ-CA-0013-9001
Defendant's Lawyers Baker, D. Cameron (California) show/hide docs
CJ-CA-0013-0005 | CJ-CA-0013-0009 | CJ-CA-0013-9001

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