Williams v. City and County of San Francisco CA1/4

Filed 6/5/23 Williams v. City and County of San Francisco CA1/4
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION FOUR
HOPE WILLIAMS et al.,
Plaintiffs and Appellants, A165040
v.
(San Francisco Superior Court
CITY AND COUNTY OF SAN No. CGC-20-587008)
FRANCISCO,
Defendant and Respondent.
Plaintiffs Hope Williams, Nathan Sheard, and Nestor Reyes appeal
after the trial court granted summary judgment in favor of defendant City
and County of San Francisco (City) on plaintiffs’ claim that the San Francisco
Police Department (SFPD) violated a City ordinance by using privately
owned surveillance technology (specifically, surveillance cameras) without
obtaining approval from the City’s Board of Supervisors (Board). The City
contends this appeal is moot because plaintiffs sought only injunctive and
declaratory relief, and a more recently enacted ordinance approves the use of
the challenged surveillance technology, so there is no ongoing dispute as to
whether the SFPD’s use of it is proper. The City also argues the trial court’s
decision was correct on the merits.
1
We conclude that the appeal is moot and that there is no exception to
mootness that would justify our resolving the question whether the SFPD’s
past use of the technology was proper. We will therefore dismiss this appeal. 1
I. BACKGROUND
A. The SFPD’s Access to the Union Square Business Improvement
District’s Camera Network
In its summary judgment order, the trial court summarized the
background of the SFPD’s use of the privately owned camera network at
issue here. “During San Francisco’s Pride celebration in June 2019, the
Union Square Business Improvement District [(USBID)]—a non-City
entity—gave City police access to USBID’s outdoor camera network.
[Citation.] In July 2019, the at-issue ordinance—[codified at San Francisco]
Administrative Code [Chapter] 19B—took effect. [Citation.] In
February 2020, the USBID again offered the police access to its cameras—for
football’s Super Bowl. [Citation.] In May and June 2020, there were protests
in San Francisco of George Floyd’s murder. With access to USBID’s camera
network on a laptop computer, a police officer looked several times ‘to ensure
there were no crowds forming in Union Square’ and found ‘no activity.’
[Citation.] Again, for July 4th 2020, the USBID offered police access to its
camera network.”
B. The Board’s 2019 Ordinance Governing the Acquisition of
Surveillance Technology
In 2019, the Board adopted San Francisco Ordinance No. 107-19, which
added Chapter 19B (entitled “Acquisition of Surveillance Technology”) to the
1 A group of organizations including Asian Americans Advancing
Justice-Asian Law Caucus (ALC) and Black Movement-Law Project (BMLP)
filed an application for leave to file an amicus brief in support of plaintiffs.
We deny the application because the proposed amicus brief does not address
the mootness issue that we find dispositive.
2
City’s Administrative Code (Chapter 19B). (S.F. Admin. Code, Ch. 19B; S.F.
Ord. No. 107-19, § 2, adding Ch. 19B to S.F. Admin. Code.) The ordinance
was approved on June 14, 2019, and took effect on July 15, 2019. (S.F.
Admin. Code, Ch. 19B.)
Chapter 19B limits the ability of City departments to use surveillance
technology,2 including requiring that a department obtain “[Board] approval
by ordinance” of a “Surveillance Technology Policy” for each surveillance
technology. (S.F. Admin. Code,3 § 19B.2, subd. (a).) Such approval generally
is required prior to a department’s acquiring, using, borrowing, or sharing a
surveillance technology. (§ 19B.2, subd. (a)(2)-(4).) Chapter 19B outlines the
procedure to be used by a department seeking Board approval of a
surveillance technology, a process that involves development of a proposed
policy for the technology by a City body, the Committee on Information
Technology (COIT). (§§ 19B.1, 19B.2, subds. (a)-(b), 19B.3, 19B.4.)
Although generally requiring prior Board approval for use of
surveillance technology, Chapter 19B allows a City department to continue
using an existing surveillance technology until the Board enacts an ordinance
addressing the department’s policy for that technology. (§ 19B.5, subd. (d).)
Specifically, section 19B.5, subdivision (d) (section 19B.5(d)) states: “Each
2 Chapter 19B’s definition of “ ‘Surveillance Technology’ ” states in part
that the term means “any software, electronic device, system utilizing an
electronic device, or similar device used, designed, or primarily intended to
collect, retain, process, or share audio, electronic, visual, location, thermal,
biometric, olfactory or similar information specifically associated with, or
capable of being associated with, any individual or group.” (S.F.
Admin. Code, § 19B.1.) The definition also lists a number of technologies
that fall within its reach, including “surveillance cameras.” (Ibid.)
Undesignated section references are to the San Francisco
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Administrative Code.
3
Department possessing or using Surveillance Technology before the effective
date of this Chapter 19B may continue its use of the Surveillance Technology
and the sharing of data from the Surveillance Technology until such time as
the Board enacts an ordinance regarding the Department’s Surveillance
Technology Policy and such ordinance becomes effective under Charter
Section 2.105.”4
C. Plaintiffs’ Lawsuit and Appeal
In October 2020, plaintiffs filed the present action against the City,
alleging the SFPD violated section 19B.2, subdivision (a)(2)-(4) by using the
USBID’s surveillance camera network in May and June 2020 without
obtaining prior Board approval. (See § 19B.8, subd. (b) [“any person affected”
by an alleged violation of Chapter 19B “may institute proceedings for
injunctive relief, declaratory relief, or writ of mandate to remedy the
violation”; the action is to be brought against the City].) 5 Plaintiffs sought a
declaration that the City violated Chapter 19B and an order enjoining the
City from acquiring, borrowing, or using any private camera network without
prior Board approval. Plaintiffs also sought attorney fees.
4 Both parties refer to section 19B.5(d) as providing a “grace period”
during which a City department may continue to use an existing surveillance
technology pending the enactment of a Board ordinance addressing the use of
that technology, although as the trial court noted, the ordinance itself does
not use the term “ ‘grace period’ ” (or the related term used by the City that
an existing technology may be “ ‘grandfather[ed]’ ” in). For convenience, we
will sometimes refer to the provision as a “grace period.”
5 As to standing, plaintiffs allege that, as activists involved in protest
activities, they are “affected” by the SFPD’s use (and possible future use) of
surveillance technology. The City agreed in the trial court that, under the
broad “affected” standard, plaintiffs have standing to bring the present
action.
4
The parties filed cross-motions for summary judgment in
September 2021, and the trial court heard argument on January 21, 2022,
and February 1, 2022. The court issued a written order on February 9, 2022,
granting the City’s motion and denying plaintiffs’ motion. The court ruled
the SFPD had not violated Chapter 19B. The court noted that, under
section 19B.2, a City department generally must obtain Board approval by
enactment of a separate ordinance before acquiring or using surveillance
technology. No such ordinance had been enacted governing use of the
USBID’s surveillance camera system.
The court found, however, that, because of the SFPD’s prior use of the
USBID’s camera system (including at the Pride celebration in June 2019,
before Chapter 19B went into effect), the department’s continued use of the
system was permissible under section 19B.5(d). As noted, that provision
specifies that a department “possessing or using” a surveillance technology
before the effective date of Chapter 19B may continue to use the technology
until the Board enacts an ordinance governing the technology. (§ 19B.5(d).)
The court rejected plaintiffs’ arguments that the SFPD’s use of the camera
network had not been extensive enough to qualify as “possessing or using”
under section 19B.5(d), or that section 19B.5(d) was inapplicable for other
reasons.
The court entered judgment in the City’s favor on March 10, 2022.
Plaintiffs filed a notice of appeal on March 25, 2022, initiating the present
appeal. In their appellate briefs, plaintiffs argue the trial court
misinterpreted section 19B.5(d) and erroneously concluded that provision
authorized the SFPD’s use of the USBID’s camera system in May and
June 2020.
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D. Ordinance No. 205-22
On September 27, 2022, the Board adopted an ordinance—San
Francisco Ordinance No. 205-22 (Ordinance No. 205-22)—that approves (with
specified modifications) the SFPD’s Surveillance Technology Policy for use of
surveillance cameras owned and operated by non-City entities. (Ord.
No. 205-22, §§ 3, 2, subd. (a); id., “City and County of San Francisco Tails
Ordinance,” pp. 1-2.)6 Ordinance No. 205-22 was signed by the Mayor on
October 6, 2022, and went into effect 30 days later. (Id., § 5; id., “City and
County of San Francisco Tails Ordinance,” pp. 1-2.) The ordinance describes
the process that led to its adoption, during which COIT held public hearings
and developed a recommended policy for the Board’s consideration. (Id., § 2.)
Ordinance No. 205-22 states that, “[u]nless reauthorized by ordinance,”
the approved SFPD policy, as modified by the Board, “shall expire fifteen
months after the effective date” of Ordinance No. 205-22, i.e., in
February 2024. (Ord. No. 205-22, § 4.)
II. DISCUSSION
The City argues the enactment of Ordinance No. 205-22 approving the
SFPD’s policy governing use of non-City cameras moots the present appeal.
We agree. To now resolve the central issue litigated in the trial court—
whether the grace period in section 19B.5(d) allowed use of non-City cameras
during the time before there was an applicable ordinance governing that
technology—would be an idle exercise that could not provide any effective
relief to plaintiffs.
We granted the City’s motion that we take judicial notice of
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Ordinance No. 205-22.
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A. Legal Standard
“A court is tasked with the duty ‘ “to decide actual controversies by a
judgment which can be carried into effect, and not to give opinions upon moot
questions or abstract propositions, or to declare principles or rules of law
which cannot affect the matter in issue in the case before it.” ’ [Citation.] A
case becomes moot when events ‘ “render[] it impossible for [a] court, if it
should decide the case in favor of plaintiff, to grant him any effect[ive]
relief.” ’ [Citation.] For relief to be ‘effective,’ two requirements must be met.
First, the plaintiff must complain of an ongoing harm. Second, the harm
must be redressable or capable of being rectified by the outcome the plaintiff
seeks.” (In re D.P. (2023) 14 Cal.5th 266, 276.)
“Even when a case is moot, courts may exercise their ‘inherent
discretion’ to reach the merits of the dispute. [Citation.] As a rule, courts
will generally exercise their discretion to review a moot case when ‘the case
presents an issue of broad public interest that is likely to recur,’ ‘when there
may be a recurrence of the controversy between the parties,’ or ‘when a
material question remains for the court’s determination.’ ” (In re D.P., supra,
14 Cal.5th at p. 282.)
B. The Appeal is Moot and No Basis Exists to Exercise Our
Discretion to Reach the Merits of The Dispute
Applying the above standard for mootness, it would not be possible for
this court to grant effective relief to plaintiffs if we were to decide this appeal
in their favor. Now that an ordinance approving the SFPD’s policy governing
use of non-City surveillance cameras has gone into effect, the harm identified
in plaintiffs’ complaint—that the SFPD used the USBID’s cameras in the
absence of an approving ordinance—is not ongoing. And because plaintiffs
seek only injunctive and declaratory relief, no action this court could take in
resolving this appeal would redress or rectify any harm stemming from the
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SFPD’s allegedly improper past use of the technology. More specifically, as
the City points out, determining whether the SFPD’s use of non-City cameras
in 2020 fell within section 19B.5(d)’s grace period, a period that has ended
due to the enactment of Ordinance No. 205-22, would provide no effective
relief to plaintiffs. A pronouncement by this court on that issue would be
nothing more than an advisory opinion.
Plaintiffs argue in their reply brief that this court should resolve the
present appeal nonetheless, either because it is not moot or because
circumstances exist that justify this court’s reaching the merits of the dispute
even though it is moot. Plaintiffs first contend that, because Ordinance
No. 205-22 states that the SFPD’s policy governing use of non-City
surveillance cameras will remain in effect only until February 2024, the
appeal is not moot. Plaintiffs also claim that, even if their request for
injunctive relief is moot, this court can still provide effective declaratory relief
as to the meaning of section 19B.5(d). Finally, plaintiffs assert that, even if
this case is moot as to them, this court should determine the scope of
section 19B.5(d) because that is a question of broad public interest that is
likely to recur.
We disagree with each of plaintiffs’ arguments and we will therefore
dismiss this appeal as moot.
1. The Sunset Provision in Ordinance No. 205-22
As noted, Ordinance No. 205-22 states that, “[u]nless reauthorized by
ordinance,” the SFPD’s policy governing use of non-City cameras “shall expire
fifteen months after the effective date” of Ordinance No. 205-22. (Ord.
No. 205-22, § 4.) Plaintiffs argue that, if the Board does not reauthorize the
policy, any SFPD use of the USBID’s cameras after February 2024 would
violate Chapter 19B’s prohibition on the use of surveillance technology
without Board approval (found in section 19B.2), so an injunction prohibiting
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such use would still be appropriate, independent of the question whether the
grace period in section 19B.5(d) applied in 2020. Accordingly, plaintiffs
assert, their request for an injunction is “live.” We disagree.
There is no live controversy here, because the basis for plaintiffs’
request for injunctive relief—the SFPD’s alleged unauthorized use of non-
City cameras—no longer exists. Currently, it would not be a violation of
section 19B.2 for the SFPD to use the USBID’s cameras, as long as the SFPD
follows the guidelines in its Board-approved policy governing use of non-City
cameras. (§ 19B.2; Ord. No. 205-22, § 3.) There is no ongoing illegal conduct
to enjoin. The circumstance that the use of non-City cameras could become
unlawful at some point (e.g., if the SFPD’s policy expires without being
reauthorized) does not persuade us that an injunction should issue requiring
generally that the City comply with whatever legal regime is in place in the
future. The parties’ dispute as to whether the SFPD’s past use of the
cameras was improper and needed to be enjoined is moot.
Plaintiffs contend a defendant’s cessation of allegedly illegal conduct
does not necessarily make a case moot, because the defendant could still
resume the conduct, but the cases plaintiffs cite on this point are inapposite.
When a private defendant temporarily ceases conduct that allegedly
violates the law, or when a governmental defendant modifies its policies in a
way that only temporarily addresses alleged constitutional or other
violations, courts have held in some circumstances that a dispute over the
validity of the defendant’s conduct remained live. (E.g., Bullock v. Carter
(1972) 405 U.S. 134, 136, 141-142, fn. 17 [state statute enacted to protect
election process during state’s appeal of order finding candidate filing-fee
requirement unconstitutional did not moot the appeal]; Gould v. Grubb
(1975) 14 Cal.3d 661, 666, fn. 5 [city’s enactment of ordinance to comply with
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trial court ruling on election procedures was only to “insulate” interim
elections and did not constitute an abandonment of city’s position on appeal
that its previous practice was constitutional; citing Bullock]; Robinson v. U-
Haul Co. of California (2016) 4 Cal.App.5th 304, 316 [“Where, as here, a
company has not taken action to bind itself legally to a violation-free future,
there may be reason to doubt the bona fides of its newly established law-
abiding policy.”].)
The situation here is different. The SFPD is alleged to have violated a
City ordinance in the past by using non-City cameras without Board
approval, but the Board has now granted approval. The SFPD’s conduct
remains the same, but the legal rules governing it have been changed by the
body with authority to set those rules. The possibility the same SFPD
conduct could in the future violate a different and unknown set of legal rules
does not create a live controversy subject to meaningful judicial resolution.
In urging that a justiciable dispute remains, plaintiffs argue the City
“has not abandoned its defense of the SFPD’s unapproved use of the non-city
cameras.” But the City does not contend the SFPD has a general right to use
non-City cameras without Board approval. Instead, the City presents the
more limited argument that, during the period before the Board enacted an
ordinance addressing the SFPD’s use of non-City cameras, such use was
permissible under the grace period afforded by section 19B.5(d). That grace
period has now ended with the enactment of Ordinance No. 205-22, and
plaintiffs do not suggest the grace period will spring back into existence if the
SFPD’s policy governing use of non-City cameras is not reauthorized by the
Board. (§ 19B.5(d).) We decline to hold that mootness in these circumstances
hinges on a requirement that the City renounce its view as to the scope of the
now-expired grace period.
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2. Declaratory Relief
Plaintiffs next argue that, even if their request for injunctive relief is
moot, this court should still resolve their request for declaratory relief as to
the applicability of the grace period in section 19B.5(d), an issue they contend
could arise in future disputes with the SFPD about other surveillance
technologies. (See Eye Dog Foundation v. State Board of Guide Dogs for the
Blind (1967) 67 Cal.2d 536, 541 [“general rule governing mootness” is subject
to exception where “there remain material questions for the court’s
determination,” an exception that can apply to claims for declaratory relief].)
We find no basis for resolving the declaratory relief claim here. No
record has been developed in the present case as to the SFPD’s prior
possession or use of other technologies such as to (arguably) trigger the
section 19B.5(d) grace period allowing their continued use pending Board
approval. In our view, the possibility of a future dispute about such a
question (likely involving different factual and legal issues than are
presented in this case) does not provide a basis for this court to determine
whether the Board’s use of the USBID’s cameras in 2020 fell within the
terms of section 19B.5(d).
3. Likelihood of Recurrence
Finally, plaintiffs contend that, even if this case is moot as to them, this
court should address their arguments as to the scope of the section 19B.5(d)
grace period because that is a question of broad public interest that is likely
to recur in disputes between other plaintiffs and other City departments. We
disagree. First, as noted, the ordinance requiring Board approval of
surveillance technologies went into effect in 2019, and it does not seem self-
evident that there will continue to be frequent disputes about whether a
department’s pre-2019 use of surveillance technologies triggered the
section 19B.5(d) grace period. But in any event, for the reasons we have
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discussed, the possibility of a future dispute about a different technology,
involving distinct facts and issues, does not provide a basis to resolve the
present appeal.
III. DISPOSITION
The appeal is dismissed. City shall recover its costs on appeal.
STREETER, J.
WE CONCUR:
BROWN, P. J.
WHITMAN, J.*
*Judge of the Superior Court of California, County of Alameda,
assigned by the Chief Justice pursuant to article VI, section 6 of the
California Constitution.
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