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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 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 were for an arbitrary period (typically between five and thirteen 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 the practice delayed entry of the plea and re-examination of bail or release on recognizance to the next court appearance.

The plaintiffs argued that the defendant's policy was unconstitutional because counsel is required at all critical stages, and arraignment is a critical stage in California. They 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). 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 policy's illegality, and an injunction against the policy and to enforce California Government Code § 27706. They also sought attorneys' fees and punitive damages.

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

A month after the plaintiffs began the lawsuit, the defendants filed a motion to dismiss. On May 8, 2013, 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 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 more than a speculative claim to relief under the pleading standards set forth in Bell Atlantic Corp. v. Twombly and Ashcroft v. Iqbal. 2013 WL 1915700 (N.D. Cal. 2013).

On May 13, 2013, the plaintiffs filed an amended complaint, and again on May 31, 2013. The complaint proceeded on all the same charges as the original 2012 complaint, but with developed details on the legal basis for the claims and 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 again 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 back to the District Court. The Ninth Circuit held that the district court did not err in dismissing the due process or equal protection claims because the defendant's policy was not unconstitutional. In Ross v. Moffitt, 417 U.S. 600, 616 (1974), the Court had held that although the assistance of counsel at the initial appearance “might be of benefit to an indigent defendant [it] 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 constitutionally significant. The district court did not address the question of whether the delay was unreasonable, but considered only whether the delay “impacted [the plaintiff’s] representation at subsequent critical stages of his proceedings.” The Ninth Circuit reversed and remanded this federal claim and state law claims. 637. Fed. App'x 986. The defendant filed for a writ of certiorari from the Supreme Court, but was denied on October 3, 2016.

The plaintiffs filed a third amended complaint in light of the Ninth Circuit's ruling and the defendant promptly filed a motion to dismiss. On April 28, 2017, the court dismissed the plaintiff's claims that the defendant had failed to provide counsel at a critical stage. But the claims relying on a theory of unreasonable delay in appointing counsel survived the motion.

On Nov 22, 2017, the plaintiffs moved for summary judgment or partial summary judgment in the alternative. The defendants responded with cross-motions for summary judgment two months later. The court denied the plaintiff's motion for summary judgment and granted the defendant's motion for summary judgment with respect to the plaintiffs Sixth Amendment claims on January 2, 2019. Additionally, the court dismissed the plaintiff's California government code claims for lack of subject matter jurisdiction, but allowed the plaintiffs to bring that claim in a court that had proper jurisdiction. 2017 WL 1540637. The plaintiffs appealed the court's judgment at the end of that month, on January 31.

As of March 18, 2019, the case is pending decision in the Ninth Circuit and remains ongoing.

Kenneth Gray - 06/12/2013
Abigail DeHart - 02/06/2017
Keagan Potts - 03/18/2019


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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
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 Pending
Filed Pro Se No
Prevailing Party None Yet / None
Public Int. Lawyer No
Nature of Relief None yet
Source of Relief None yet
Filing Year 2012
Case Ongoing Yes
Additional Resources
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  See this case at CourtListener.com (May provide additional documents and, for active cases, real-time alerts)
Docket(s)
3:12-cv-6495 (N.D. Cal.)
CJ-CA-0013-9001.pdf | Detail
Date: 03/14/2019
Source: PACER [Public Access to Court Electronic Records]
General Documents
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]
Order Granting Defendant's Motion to Dismiss the Complaint Without Prejudice [ECF# 45-1] (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 [ECF# 55]
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 [ECF# 56]
CJ-CA-0013-0005.pdf | Detail
Date: 06/13/2013
Source: PACER [Public Access to Court Electronic Records]
Memorandum Opinion (637 Fed.Appx. 986)
CJ-CA-0013-0011.pdf | WESTLAW| LEXIS | Detail
Date: 01/08/2016
Source: Westlaw
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]
Third Amended Complaint [ECF# 91]
CJ-CA-0013-0006.pdf | Detail
Date: 11/16/2016
Source: PACER [Public Access to Court Electronic Records]
Order Regarding Motion to Dismiss Third Amended Complaint [ECF# 107] (2017 WL 1540637) (N.D. Cal.)
CJ-CA-0013-0007.pdf | WESTLAW | Detail
Date: 04/28/2017
Source: PACER [Public Access to Court Electronic Records]
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]
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]
Order on Cross Motions for Summary Judgment [ECF# 145] (2019 WL 78839) (N.D. Cal.)
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-0013-0003 | 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-0013-0003 | 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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