In the recent case of Burke v County of Alameda, the Ninth Circuit Court of Appeals ruled that the case should be retried in the Oakland Federal Court against Alameda County for deliberate indifference. The court ruled that:
"A municipality may be held liable under § 1983 'when execution of a government’s policy or custom, whether made by its lawmakers or by those whose edicts or acts may fairly be said to represent official policy, inflicts the injury.' Monell v. Dep’t of Soc. Servs., 436 U.S. 658, 694 (1978). To establish municipal liability under § 1983, a plaintiff 'must show that (1) she was deprived of a constitutional right; (2) the County had a policy; (3) the policy amounted to a deliberate indifference to her constitutional right; and (4) the policy was the moving force behind the constitutional violation.' Mabe, 237 F.3d at 1110-11 (internal quotation marks omitted)."
Now, this should exclude the State or the Department of Corrections Director Matthew Cate, because the State has immunity under the Eleventh Amendment. However, individual Parole Officers, as well as Contra Costa County, it's Sheriff, and the Deputies and Code Enforcement Officers should be sued up the hilt for not finding Jaycee sooner.
Sure, the individual Officers could claim "qualified immunity" but they cannot claim it for at least two reasons:
1. In 1990, the Ninth Circuit ruled that the Federal Court should have the Plaintiff replead have Equal Protection suit in Balistreri v. Pacifica Police Department, 901 F.2d 696 (9th Cir. 1990). In that case, Balistreri was beaten by her husband, and the Police did not have her husband arrested. It would be an Equal Protection violation if the arrest was not done because the Police (or others) had an animus. Maybe they did not hate Jaycee, but the Parole Officers, Sheriff's Deputies, and Code Enforcement Officers knew or should have known that Garrido was and is a registered sex offender, but was giving him "special treatment", and treating him like a good citizen despite the 1972 kidnapping and rape of a 15-year old that he was not convicted of, and the 1976 kidnapping and rape of a casino worker THAT HE GOT A 50-YEAR FEDERAL PRISON SENTENCE FOR. It's going to be hard for State Parole Agents to be sued for, but not the County or its employees.
2. California Penal Code §3067(a) states that:
"(a) Any inmate who is eligible for release on parole pursuant to this chapter shall agree in writing to be subject to search or seizure by a parole officer or other peace officer at any time of the day or night, with or without a search warrant and with or without cause."
It doesn't say that you have to get off your ass, go see a judge, swear over a Bible, and state probable cause why the Parole Officer needs a warrant. The law was not written to give Judges, good or bad, to do any extracurricular activities. It was written at the time to give Parole Officers the authority to search for evidence of any wrongdoing in order to prevent the recidivism of parolees. It is a lie for Parole Officers to say that they weren't given the training to do parole searches when authorized by statute. This would not only destroy the "qualified immunity" that Parole Officers have, as well as Sheriff's Deputies and Code Enforcement Officers, for not doing their jobs. Jaycee was a missing child, reported by the El Dorado County Sheriff's Department, and was profiled on "America's Most Wanted". The individual Parole Officers, as well as Contra Costa County, it's Sheriff, and the Deputies and Code Enforcement Officers, all had the duty to do Parole searches. That means that the Parole Officer barges in the residence, and looks under all nooks and crannies for all sorts of contraband (drugs, porn, other illegal equipment, violations of Federal, State, and local laws, etc.), and when in violation, throw him back in State Prison for up to a year, without a Court Hearing. The place was a pigsty before the arrest, and I believe no permits were pulled for the eight-foot high fence, the wiring, the sound-proof recording studio, and the abandoned vehicles, junk, and debris lying around. Code Enforcement could have checked Garrido's sex offender status, and could have searched the premises, including the secretive compound, without a warrant. Deputies were also around, and they could have searched the premises, and also investigated the people involved. Police Officers should be able to investigate, and find out if there any laws are being broken. They are not the Chief of Police's, City Manager's, or Mayor's personal Gestapo squad. Unfortunately, the County of Contra Costa does not care about missing and abused children.
Jaycee, and her two kids' first responsibility is to get back to normal, or at least with her two kids, be normal. Her two daughters would have to get used to going to school, because they weren't allowed to go to school, period. They have no interaction with other kids they should have had, if it wasn't for Creepy Phil and Nancy. Imagine going to High School, and finding out the hard way that you have to attend six to eight classes, and interacting with students who went to elementary and junior high school, and that's in addition to the usual "peer pressure" of drugs, sex, bad kids, and whatever is already there in High School. Even if her oldest daughter goes a Parochial or "Christian" high school, the kids will still do everything they can to break all the rules, and it would be no different there. I may advocate suing in a 42 USC §983 action, but Jaycee and the kids should have some adjustment first.
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