A federal judge has ruled people assigned to electronic monitoring while awaiting criminal trial can proceed with a class action claiming the San Francisco Sheriff's Office violated their Fourth Amendment rights and other state and federal constitutional protections by requiring they consent to searches at any time as a condition of pretrial release.
The judge also issued a preliminary injunction, blocking the sheriff's office from continuing to enforce the office's electronic monitoring rules.
U.S. District Judge Jon Tigar filed an opinion Feb. 13 denying a motion to dismiss the lawsuit, which the City and County of San Francisco and Sheriff Paul Miyamoto filed hoping to end litigation from three named plaintiffs — criminal defendants Joshua Simon, David Barber and Josue Bonilla — and other defendants identified as San Francisco taxpayers. Tigar agreed to send the taxpayer claims to state court.
U.S. District Judge Jon Tigar
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At issue are two rules the sheriff’s office established for local oversight of the state court system’s pretrial electronic monitoring policy. When the plaintiffs filed their lawsuit in September 2022, and until changes in May 2023, the sheriff office's rule known as Rule Five required those charged with criminal acts and released from custody on electronic monitoring to “submit to a search of my person, residence, automobile or property by any peace officer at any time,” while Rule 13 stipulated: “I acknowledge that my (electronic monitoring) data may be shared with other criminal justice partners.”
The government argued the plaintiffs lacked standing and said May 2023 revisions to the rules mooted the lawsuit. The plaintiffs challenged mootness on multiple grounds and said “the indefinite sharing and retention of proposed class members’ data continued.”
Tigar rejected the standing argument, saying the plaintiffs’ alleged “injury is directly traceable” to the program rules and implementation. Regarding mootness, the government argued Simon couldn’t press claims because his initial time on electronic monitoring ended and his current stint began under the revised rules. But the plaintiffs invoked the ”inherently transitory” mootness exception, saying their specific claims must survive because the court wouldn’t have time to rule on certification before expiration of the individual interest of named plaintiffs.
“Claims regarding court or sheriffs’ supervision during the pretrial period are the epitome of inherently transitory claims,” Tigar wrote. “At least some current proposed class members continue to experience the ongoing injury alleged in the complaint. Approximately 90 individuals remain enrolled in pretrial EM under the same terms that governed named plaintiffs’ EM at the time that they filed this action.”
The status of those 90 people also factored into Tigar’s analysis of the influence of program revisions. While acknowledging eventual attrition, Tigar said the conditions supporting the allegations are presently unchanged. Further, the sheriff’s changes aren’t reflected in state law or local ordinance or regulations, which means “the sheriff could abandon them with relative ease.” Furthermore, he said, Miyamoto “continues to defend the legality of the original program rules in this litigation.”
Tigar agreed the taxpayers lacked standing to argue in federal court, remanding to state court their claims the government was illegally expending public money by implementing unconstitutional rules.
But he rejected an argument the county should be dismissed because Miyamoto was acting as an agent of the state criminal court, noting the plaintiffs didn’t challenge the office’s inherent authority, but whether the sheriff exceeded that power. He also rejected the government’s position about his authority to hear the case and suggestions for other venues in which the plaintiffs could pursue relief.
“These arguments preview fundamental misunderstandings about the nature of plaintiffs’ claims that recur throughout defendants’ briefing,” Tigar wrote.
Regarding the due process arguments, Tigar reiterated the plaintiffs’ allegations do not address the state’s electronic monitoring program, only San Francisco’s specific rules, which they sare are developed without Superior Court oversight. He further said the plaintiffs “plausibly alleged that the sheriff’s program rules are imposed without individualized findings" by a judge, which would negate the consent criminal suspects give when enrolling in electronic monitoring.
Tigar said the government’s arguments for dismissal “largely attack the merits of plaintiffs’ contentions rather than whether their factual allegations are sufficient to state a claim."
The judge distinguished between a government’s authority to surveil someone convicted of a crime and out of prison on probation and the rights of those, like plaintiffs, who have been criminally charged, but not yet tried and convicted of a crime.
While determining the lawsuit meets conditions for class certification, Tigar said it appears San Francisco lacks authority under state law to set its own pretrial release conditions and noted “evidence that at least some judges on the Superior Court understand that they can only place an individual on EM if that individual accepts the current default search condition contained on the form court order and in the revised program pules.”
Tigar also noted allegations about the sharing of plaintiffs’ location data is relevant not only because the sheriff’s office has already shared Bonilla’s location information in connection with a request about another person, but also because of the larger question of whether Miyamoto’s “office has given itself the right to share that data.”
In addition to remanding the taxpayers’ claims and certifying the class, Tigar granted a preliminary injunction barring San Francisco from enforcing the contested rules as relates to the roughly 90 people in the subclass of those enrolled in electronic monitoring before May 2023.
The San Francisco Sheriff’s Office did not respond to a request for comment on the decision.
The plaintiffs are represented in the case by attorneys Shilpi Agarwal, Avram D. Frey, Emi Young and Hannah Kieschnick, of the American Civil Liberties Union Foundation of Northern California, of San Francisco.
Tigar, an appointee of former President Barack Obama, gained fame nationally when he repeatedly blocked immigration policies issued by former President Donald Trump, intended to deny entry into the U.S. to "asylum seekers" attempting to walk across the U.S.-Mexico border, if they could not prove they had similarly sought asylum from any of the other countries they claimed to have traveled through before arriving at the U.S. border.