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Case 3:18-cv-00050-JD Document 24 Filed 02/09/18 Page 1 of 10

1 GREGORY B. THOMAS, ESQ. (SBN 239870)


TEMITAYO O. PETERS, ESQ. (SBN 309913)
2 BOORNAZIAN, JENSEN & GARTHE
A Professional Corporation
3 555 12th Street, Suite 1800
Oakland, CA 94607
4 Telephone: (510) 834-4350
Facsimile: (510) 839-1897
5 gthomas@bjg.com
opeters@bjg.com
6
Attorneys for Defendants COUNTY OF ALAMEDA,
7 GREGORY J. AHERN, BRETT M. KETELES, TOM MADIGAN,
D. SKOLDQVIST, LT. HATTAWAY, SGT. CALEGARI,
8 DEPUTY DIVINE (512), DEPUTY DEBRA FARMANIAN,
DEPUTY WEATHERBEE (238), DEPUTY TANIA POPE,
9 DEPUTY WINSTEAD, and DEPUTY CAINE

10 UNITED STATES DISTRICT COURT

11 NORTHERN DISTRICT OF CALIFORNIA

12 JACLYN MOHRBACHER, et al., ) Case No. 3:18-cv-00050-JD


)
13 Plaintiffs, ) DEFENDANTS’ MEMORANDUM OF
v. ) POINTS AND AUTHORITIES IN
14 ) OPPOSITION TO PLAINTIFFS’
ALAMEDA COUNTY SHERIFF’S OFFICE, et ) EMERGENCY PETITION FOR AN
15 al., ) ORDER TO SHOW CAUSE
)
16 Defendants. ) DATE:
) TIME:
17 ) COURTROOM:
) Complaint filed January 4, 2018
18
19 The County of Alameda defendants respectfully submit this opposition to Plaintiffs’
20 Emergency Petition for an Order to Show Cause seeking relief for alleged false arrest, intimidation

21 and other harassment of Plaintiffs (“Emergency Petition”).

22 I. INTRODUCTION
23 The gang suppression unit of Alameda County Sheriff’s Office (“ACSO”) was performing
24 routine police operations in Hayward, California when Christina Zepeda, a plaintiff in this civil

25 lawsuit, was detained, searched and ultimately arrested for violating the terms of her felony

26 probation on January 31, 2018. A probation search of the vehicle Ms. Zepeda was driving when

27 she was detained revealed a loaded 45-caliber Glock handgun magazine containing ten rounds of

28 live ammunition and a digital scale with methamphetamine residue. As a result, Ms. Zepeda’s
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1 probation officer was contacted, and he determined that Ms. Zepeda was in violation of the terms

2 of her probation. As such, the probation officer placed a probation hold on Ms. Zepeda and

3 instructed that she be placed under arrest pursuant to California Penal Code section 1203.2

4 [probation violation].

5 By chance, Ms. Zepeda’s arrest happened to occur about four hours after she apparently

6 participated in a “press conference” in Oakland regarding the subject matter of this civil lawsuit.

7 Aside from this temporal coincidence, Ms. Zepeda’s arrest had absolutely nothing to do with this

8 civil lawsuit or the press conference. Instead, it had everything to do with good police work

9 tailored to keeping the community safe and suppressing gang activity.

10 II. FACTUAL AND PROCEDURAL BACKGROUND


11 Leading up to Ms. Zepeda’s arrest, the gang suppression unit, whose primary duties are to

12 monitor and combat gang-related crimes and activity, had obtained information from confidential

13 informants that Ms. Christina Zepeda was involved in the street-level sale of narcotics such as

14 methamphetamine and that she was residing at 1286 Mattox Road, Apartment 51, Hayward,

15 California (“apartment”). The gang suppression unit also had information that a resident of the

16 apartment was active to parole and that there had been firearms in the apartment. On January 31,

17 2018, while in the normal course of their duties as members of the gang suppression unit,

18 Detectives Shaun C. Corey and William Dorshkind were performing undercover surveillance of
19 the apartment in an attempt to corroborate the information they had obtained from various sources.

20 (Declaration of Shaun Corey (“Corey Dec.”), ¶¶ 3, 9.)

21 At approximately 2:00 p.m., Detective Corey observed a silver Hyunadai Elantra enter the

22 parking lot to the complex in which the apartment was located. The car lacked a front license

23 plate, a violation of California Vehicle Code section 5200(a). Detective Corey then observed at

24 least three people exit the Elantra, including Christina Zepeda, Robert Maddox and Christopher

25 Plascencia, and witnessed Messrs. Plascencia and Maddox grab several items from the vehicle,

26 such as backpacks and duffel bags, and take them into the apartment. Detective Corey witnessed

27 all three enter the apartment. ( Corey Dec. at ¶ 10.)

28 At this point, Detective Corey advised Detective Christopher Haendel, another member of

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1 the gang suppression unit who was working at the Eden Township Substation at the time he was

2 contacted by Detective Corey, of his observations and directed him to respond to the area to

3 conduct a traffic enforcement stop if necessary. Ms. Zepeda and Mr. Maddox remained in the

4 apartment for approximately 10 minutes before returning to the silver Hyundai Elantra. (Corey

5 Dec.at ¶ 11.) Detective Corey observed Ms. Zepeda enter the car and sit in the driver’s seat and

6 Mr. Maddox sit in the front passenger seat. As Ms. Zepeda drove the vehicle away, Detective

7 Corey advised Detective Haendel of the direction the vehicle was traveling. (Corey Dec. at ¶ 12.)

8 Detective Haendel initiated a traffic stop of the vehicle driven by Ms. Zepeda and pulled

9 the vehicle over at a gas station located at 17715 Mission Boulevard in Hayward, California for

10 violation of Vehicle Code section 5200(a). Declaration of Christopher Haendel (“Haendel Dec.”),

11 ¶ 9. As Detective Haendel approached the Elantra after making the traffic stop, he immediately

12 recognized Ms. Zepeda and Mr. Maddox. After they had both verbally identified themselves,

13 Detective Haendel returned to his vehicle and ran their names through the Consolidated Records

14 Information Management System (“CRIMS”). Detective Haendel learned that Ms. Zepeda was

15 active to probation for Penal Code section 459 [burglary] with a four-way search clause, and that

16 Mr. Maddox was active to probation with a four-way search clause for Health and Safety Code

17 section 11377(a). (Haendel Dec. at ¶ 10.) Based on the four-way search clauses on Ms. Zepeda’s

18 and Mr. Maddox’s probations, Detective Haendel conducted a probation search of their vehicle.
19 During the search, he located and recovered a loaded 45-caliber Glock handgun magazine

20 containing ten live rounds and a digital scale with methamphetamine residue. (Haendel Dec. at ¶

21 11.)

22 After recovering the loaded handgun magazine and the drug paraphernalia with

23 methamphetamine residue, Detective Haendel returned to his patrol vehicle and telephoned Deputy

24 Probation Officer Justin Eaglin to inform him that he had discovered the above items during a

25 search of a vehicle occupied by Ms. Zepeda and Mr. Maddox. Deputy Probation Officer Eaglin

26 then placed a probation hold on Ms. Zepeda and Mr. Maddox and asked Detective Haendel to

27 place them under arrest. (Haendel Dec. at ¶ 12.) Detective Haendel then informed Ms. Zepeda

28 and Mr. Maddox that he was placing them under arrest pursuant to California Penal Code section

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1 1203.2 [probation violation]. ( Haendel Dec. at ¶ 13.) While Ms. Zepeda was detained, she told

2 Detective Haendel that she had “sued the County.” She also told Deputy Haendel that she had just

3 come from a friend’s house and then stated that she had actually come from a “press conference.”

4 Prior to this moment, Deputy Haendel had no knowledge of Ms. Zepeda had just participated in a

5 press conference or that Ms. Zepeda had filed a civil lawsuit against the County of Alameda. (

6 Haendel Dec. at ¶ 14.)

7 Detectives Corey and Dorshkind went to the traffic stop to speak with Ms. Zepeda and Mr.

8 Maddox to obtain intelligence regarding any subjects who may have still been in the apartment.

9 During the traffic stop, Detective Corey spoke with Ms. Zepeda while she was seated in the back

10 seat of a patrol vehicle and asked her where she was coming from. Ms. Zepeda said she was

11 coming from her friend’s house and said that she had been at a press conference having to do with

12 the Sheriff’s Office. She told Detective Corey that she pulled up to the apartment complex,

13 dropped off a friend and left. Detective Corey asked her if she ever got out of the vehicle and she

14 said “no.” Detective Corey knew this statement to be untrue because he personally observed Ms.

15 Zepeda exit the vehicle and enter the apartment. Detective Corey then asked Ms. Zepeda who was

16 in the apartment and she told him that she did not know. She then told Detective Corey that she

17 felt she was being harassed. She also told Detective Corey that she had a “restraining order”

18 against the Sheriff’s Office and explained that she did not believe the Sheriff’s Office could arrest
19 her. (Corey Dec., ¶ 14.)

20 Due to the findings as a result of the traffic stop, as well as previous knowledge from this

21 investigation, Detectives Corey and Dorshkind returned to the apartment located at 1286 Mattox

22 Road, Apartment 51, Hayward, California to contact any remaining subjects in the apartment and

23 conduct a related probation search. While at the apartment, they made contact with several

24 subjects who were uncooperative, and while attempting to have the individuals open the door to

25 the apartment, a loaded firearm was thrown from the back window of the apartment. Four subjects

26 from the apartment were subsequently detained without further incident. Once the subjects were

27 detained, the apartment was frozen pending a search warrant. Detective Corey authored a search

28 warrant for the apartment and the involved parties, including Ms. Zepeda, which was signed by the

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1 Hon. L. Dorado. As a result of the search warrant an additional loaded semi-automatic handgun

2 was located in the bedroom of the apartment. Suspected heroin and drug paraphernalia were also

3 located in the apartment, as well as personal effects for Ms. Zepeda. Specifically, Detective Corey

4 recovered mail addressed to Ms. Zepeda that was sent to her at Santa Rita Jail while she was

5 previously incarcerated, and which was brought to the apartment subsequently. ( Corey Dec. at ¶

6 15.)

7 Detective Haendel transported Ms. Zepeda and Mr. Maddox to the Santa Rita Jail and left

8 them there for booking. (Haendel Dec., ¶ 15.) She was processed into Santa Rita Jail. Her

9 probation officer, Deputy Probation Officer Justin Eaglin, completed a Revocation Petition under

10 Penal Code section 1203.2 on February 2, 2018, and sent it to a probation deputy court clerk at the

11 Alameda County Probation Department. (Declaration of Justin Eaglin (“Eaglin Dec.”), ¶ 14.

12 Apparently, Deputy Probation Officer Eaglin sent the petition through a general Alameda County

13 mail service instead of through the Alameda County Probation Department’s internal mail service,

14 which delayed the receipt of the Revocation Petition. As such, the Alameda County Probation

15 Department did not receive the petition until February 6, 2018. (Declaration of Tonyita Rogers

16 (“Rogers Dec.”), ¶ 4. Based upon Santa Rita Jail’s practice with regard to inmates taken into

17 custody on felony probation holds, Ms. Zepeda was released from custody on February 5, 2018,

18 because no court date was set for a hearing regarding the petition within three court days.
19 (Declaration of Earl Riveira (“Riveira Dec.”), ¶¶ 4-7; Declaration of Olivia O’Brien (“O’Brien

20 Dec.”), ¶ 6.)

21 III. ARGUMENT
22 A. Ms. Zepeda’s Arrest was Legal Pursuant to California Penal Code Section 1203.2(a)
23 California Penal Code section 1203.2(a) provides peace officers with legal authority to

24 conduct warrantless arrests of individuals subject to probation. In re Application of Young, 121

25 Cal.App. 711, 713 (1932). In sum, it states that if a peace officer “has probable cause to believe

26 that the supervised person is violating any term or condition of his or her supervision,” the officer

27 may, “without warrant or other process and at any time until the final disposition of the case,

28 rearrest the supervised person and bring him or her before the court.” Cal. Pen. Code, § 1203.2(a).

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1 Probable cause exists when “at the moment of arrest the facts and circumstances within the

2 knowledge of the arresting officers and of which they had reasonably trustworthy information

3 were sufficient to warrant a prudent [person] in believing that the petitioner had committed or was

4 committing an offense.” Blankenhorn v. City of Orange, 485 F.3d 463, 471 (9th Cir. 2007), citing

5 United States v. Jensen, 425 F.3d 698, 704 (9th Cir. 2005).

6 Here, Plaintiffs allege that Ms. Zepeda’s January 31, 2018 arrest was wrongful. Plaintiffs

7 further contend that ACSO had their January 31, 2018 “press conference” under surveillance, that

8 ACSO deputies followed Ms. Zepeda after the press conference, harassed her, and finally arrested

9 her without a warrant in an attempt to “stifle and limit her testimony” in this lawsuit. Dkt. 21 at

10 2:9-12; 2:10-3:5; 5:18-19. Plaintiffs, however, provide no evidence whatsoever that their press

11 conference was surveilled, that Ms. Zepeda was followed after its conclusion, or that her

12 subsequent detention and arrest was as a result of retaliatory animus. Indeed, the Emergency

13 Petition is devoid of relevant admissible evidence, and consists almost exclusively of baseless,

14 inflammatory accusations against ACSO.

15 Contrary to the assertions in the Emergency Petition, none of the individuals involved in

16 Ms. Zepeda’s January 31, 2018 arrest was anywhere near the press conference when it was

17 occurring. (Haendel Dec.,¶ 4; Corey Dec., ¶ 7; Eaglin Dec., ¶ 3.) Moreover, none of officers

18 involved in Ms. Zepeda’s January 31, 2018 arrest had any knowledge of this lawsuit or the related
19 press conference prior to Ms. Zepeda’s arrest. Haendel Dec., ¶ 14; Corey Dec., ¶¶ 16-18; Eaglin

20 Dec., ¶ 11.) Indeed, the evidence establishes that Ms. Zepeda’s arrest occurred as a result of

21 routine gang suppression unit operations that had nothing to do with the subject of this lawsuit and

22 not as a result of any attempt to retaliate against Ms. Zepeda. ( Corey Dec., ¶ 20; Haendel Dec., ¶

23 16.)

24 Probable cause existed to detain Ms. Zepeda based on the information Detective Corey and

25 his partner received from confidential informants, their observations of Ms. Zepeda at the

26 apartment, and the fact that she was driving a vehicle in violation of Vehicle Code section 5200(a).

27 (Corey Dec., ¶¶ 3-12; Haendel Dec., ¶ 5.) Probable cause existed for her arrest after Detective

28 Haendel conducted a probation search of the Elantra, discovered the loaded 45-caliber Glock

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1 handgun magazine containing ten live rounds of ammunition and a digital scale with

2 methamphetamine residue, and then confirmed with Deputy Parole Officer Eaglin that Ms. Zepeda

3 was in violation of the terms and conditions of her probation. (Haendel Dec., ¶¶ 8-12; Eaglin

4 Dec., ¶¶ 3-6.) As a result, Ms. Zepeda’s arrest was justified pursuant to California Penal Code

5 section 1203.2(a). Aside from the temporal coincidence, there is not one scintilla of evidence that

6 Ms. Zepeda’s arrest was a result of anything other than good police work.

7 B. Ms. Zepeda’s Detainment did Not Violate her Due Process Rights Because She was
Arrested Solely for Violating her Probation
8

9 Next, Plaintiffs allege that after her arrest, Ms. Zepeda was unlawfully held without charge

10 and without seeing a judge for more than 48 hours in violation of California Penal Code section

11 825. Dkt. 21 at 3:13-4:7. Plaintiffs’ citation of California Penal Code section 825, however, is

12 inapposite. The California Supreme Court has unequivocally stated that this section of the penal

13 code only applies to probationers when they have been arrested on new charges. Williams v.

14 Superior Court, 230 Cal.App.4th 636, 661 (2014). In situations involving alleged probation

15 violations on an existing sentence, the California Supreme Court has stated that the hearing need

16 only be held within a “reasonable time” after the probationer is taken into custody to satisfy due

17 process. People v. Vickers, 8 Cal. 3d 451, 457-460 (1972) [applying the United States Supreme

18 Court’s Due Process analysis in Morrissey v. Brewer, 408 U.S. 471 (1972).]; see also People v.
19 DeLeon, 3 Cal. 5th 640, 658 (2017) [declining to hold that due process requires a preliminary

20 hearing to be made within 15 days of arrest in connection with parole violation].

21 In accordance with Vickers, Santa Rita Jail has a practice to ensure that inmates who are

22 taken into custody for probation violations pursuant to California Penal Code section 1203.2

23 receive a hearing within a reasonable time. (Riveira Dec., ¶ 4.) Santa Rita Jail’s practice to ensure

24 due process in this regard is to hold such an inmate for up to three court days pending the filing a

25 Revocation Petition under California Penal Code section 1203.2, and the setting of a court date for

26 any inmate who comes into ACSO’s custody on a felony probation detainer. (Riveira Dec., ¶ 4.)

27 To ensure compliance with this practice, Santa Rita Jail records deputies use a “Hot Sheet” to keep

28 track of inmates who fall under this category. (Id. at ¶ 5.) Each night, the midnight records deputy

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1 checks the file of each inmate on the Hot Sheet to determine if a Revocation Petition has been filed

2 and a court date has been set. (Id. at ¶ 6.) If no hearing has been set, the deputy updates the Hot

3 Sheet to reflect this fact. (Ibid.) If a Revocation Petition is not filed by 5:00 p.m. on the third day

4 after the inmate’s arrest, the inmate is processed for release. (Id. at ¶ 7.) This policy prevents

5 inmates from being delayed indefinitely in the ACSO’s custody while waiting for a court hearing

6 on their probation detainer. (Id. at ¶ 4.)

7 Ms. Zepeda was booked at Santa Rita Jail on January 31, 2018, at approximately 6:54 p.m.

8 pursuant to California Penal Code section 1203.2. (O’Brien Dec., ¶ 4 and Exh. B.) Like all

9 inmates who come into the ACSO’s custody on felony probation detainers, Ms. Zepeda’s name

10 was placed on the Hot Sheet upon her arrival. (Id. at ¶¶ 4-5 and Exh E.) Each day when Ms.

11 Zepeda was in custody following her January 31, 2018 arrest, a records deputy reviewed her file

12 and updated the Hot Sheet. (Id. ¶ 4.) On February 5, 2018, since three court days had passed since

13 her January 31, 2018 arrest and no court date had been set in connection with the Revocation

14 Petition, Ms. Zepeda was processed for release and released. (Id. at ¶¶ 4-6.) In light of the fact

15 that Ms. Zepeda is no longer in ACSO’s custody, the fact that she was processed like any other

16 inmate in accordance with policy, and the controlling language of Vickers, her due process rights

17 were not violated in connection with her January 31, 2018 to February 5, 2018 incarceration at

18 Santa Rita Jail.


19 C. Pursuant to the Younger Doctrine, Plaintiffs Must Refrain from Asking this Court to
Intercede in Potentially Ongoing State Criminal Proceedings
20

21 Finally, Plaintiffs assert that this Court has jurisdiction to hear this Emergency Petition

22 under 28 U.S.C. § 1343. Although the Emergency Petition is essentially moot in light of the fact

23 that Ms. Zepeda is no longer in the ACSO’s custody, the Alameda County Probation Department

24 is in the process of resubmitting a Revocation Petition to the Alameda County Superior Court.

25 (Eaglin Dec., ¶ 10.) As a result, Ms. Zepeda may have ongoing criminal proceedings and could be

26 rearrested and detained by ACSO.

27 The United States Supreme Court has held that where state criminal prosecutions are

28 brought lawfully and in good faith, federal courts should refrain from enjoining pending state

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1 criminal proceedings except under extraordinary circumstances. Younger v. Harris, 401 U.S. 37,

2 43-54 (1971). "Younger abstention is a jurisprudential doctrine rooted in overlapping principles of

3 equity, comity, and federalism." San Jose Silicon Valley Chamber of Commerce Political Action

4 Committee v. City of San Jose, 546 F.3d 1087, 1092 (9th Cir. 2008), citing Steffel v. Thompson,

5 415 U.S. 452, 460-73, (1974) [explaining the purposes of the doctrine]; Gilbertson v. Albright, 381

6 F.3d 965, 970-75 (9th Cir.2004) (en banc) [detailing the Supreme Court's application of the

7 doctrine]. Such extraordinary circumstances are not present here. Indeed, all of the evidence

8 demonstrates that good police work led to Ms. Zepeda’s arrest, not any targeted attempt to

9 suppress her First Amendment rights. Furthermore, there is no evidence indicating that Ms.

10 Zepeda will not be given an opportunity to argue her federal constitutional issues in any state court

11 criminal proceeding. Plaintiffs have failed to present any evidence that Ms. Zepeda or anyone is

12 being harassed or persecuted by any Alameda County defendant in relation to this lawsuit to

13 necessitate granting their request for expedited release. Accordingly, Defendants respectfully

14 request that this Court refrain from interceding in any of Plaintiffs’ criminal matters and deny the

15 Emergency Petition.

16 IV. EVIDENTIARY OBJECTIONS


17 Defendants submit the following objections to the evidence Plaintiffs have provided in

18 support of their Emergency Petition.


19 A. Declaration of Yolanda Huang
20 Ms. Huang’s declaration is replete with factual inaccuracies, conclusory allegations, and

21 improper legal conclusions. See, e.g., Dkt. 22-1 at ¶¶ 4-9, 11. It is also contains hearsay in

22 violation of Rule 802 of the Federal Rules of Evidence. Ms. Huang’s declaration attempts to

23 convey what Ms. Zepeda and Mr. Maddox told her about the circumstances surrounding Ms.

24 Zepeda’s arrest. (Id. at ¶¶ 4-9, 11-12.) These statements, however, do not fall into any recognized

25 exceptions to the rule against hearsay and should not be considered. Fed. R. Evid. 801, 803. Ms.

26 Huang’s declaration also recounts various alleged statements from various government employees

27 and agencies made to her about Ms. Zepeda’s arrest. Fed. R. Evid. 801, 803. As a result, the

28

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1 probative value of Ms. Huang’s declaration is substantially outweighed by it prejudicial value, and

2 it should be excluded. Fed. R. Evid. 402, 403.

3 B. Declaration of Christina Jones


4 Ms. Jones’ declaration is irrelevant and prejudicial. Ms. Jones’ entire declaration has

5 nothing to do with the circumstances of Ms. Zepeda’s initial detainment for violating Vehicle

6 Code section 5200(a) and arrest pursuant to California Penal Code section 1203.2(a), and should

7 be excluded.

8 V. CONCLUSION
9 The fact that Ms. Zepeda’s most recent arrest occurred on the same day that she

10 participated in a “press conference” related to this lawsuit is merely a coincidence. Defendants

11 have produced substantial evidence that establishes that Ms. Zepeda’s arrest was lawfully

12 effectuated pursuant to routine gang unit operations that had nothing to do with the subject of this

13 lawsuit, and was not effectuated as a result of any alleged retaliatory animus. There is no evidence

14 that any of the officers who were involved in Ms. Zepeda’s arrest had any knowledge of this

15 lawsuit or the related press conference prior to the arrest. Plaintiffs have failed to present any

16 admissible evidence that Ms. Zepeda, or any Plaintiff for that matter, is being harassed,

17 intimidated, unlawfully arrested and imprisoned, retaliated against, or in any way targeted for their

18 involvement in this lawsuit. As a result, Defendants respectfully request that this Court deny
19 Plaintiffs’ Emergency Petition in full.

20 DATED: February 9, 2018 BOORNAZIAN, JENSEN & GARTHE


A Professional Corporation
21
By: _/s/_ GREGORY B. THOMAS
22 By: __/s/ TEMITAYO O. PETERS________
GREGORY B. THOMAS, ESQ.
23 TEMITAYO O. PETERS, ESQ.
Attorneys for Defendants COUNTY OF
24 ALAMEDA, GREGORY J. AHERN, BRETT M.
KETELES, TOM MADIGAN, D. SKOLDQVIST,
25 LT. HATTAWAY, SGT. CALEGARI,
DEPUTY DIVINE (512), DEPUTY DEBRA
26
FARMANIAN, DEPUTY WEATHERBEE (238),
27 DEPUTY TANIA POPE, DEPUTY WINSTEAD,
and DEPUTY CAINE
28 28116\774051

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