Government Liability Update

Prison Litigation Reform Act Limits Awards of Attorney Fees to 150% of Compensatory Damages Awarded against Defendant

In Jimenez v. Franklin, published May 22, 2012, the 9th Circuit interpreted 42 U.S.C.§ 1997e(d)(2), part of the Prison Litigation Reform Act, to limit attorney fee awards to inmates to 150% of the damages awarded against a defendant.  But it ruled that the defendants in that case had waived any challenge on that ground against a court order awarding fees against multiple defendants jointly and severally, because they did not raise that issue in an earlier appeal from the fee award.

Medical Marijuana Users Cannot Challenge Closure of Dispensaries Through Title II of the ADA

In James v. City of Contra Costa, published May 21, 2012, a divided 9th Circuit panel concluded that Title II of the ADA, which prohibits discrimination against the disabled in providing public services, does not provide a ground for challenging a city's exclusion of medical marijuana dispensaries from its borders.  Although the ADA protects persons with disabilities, the Act excludes from its definition of persons with disabilities persons who use illegal drugs, when the challenged activity is based on the use of those drugs.  Although California state law permits the use of marijuana for medical purposes, federal law does not.  The majority interpreted the ADA to define illegal drug use by reference to federal, rather than state, law.  Congressional action allowing the District of Columbia to implement a medical marijuana initiative did not change that conclusion.  

One judge concurred in part and dissented in part.  She considered the statutory interpretation close, and concluded that the ADA protects use of medical marijuana in California.  She did not, however, rule out the possibility that the ADA does not protect distribution of medical marijuana; and would have remanded the case for consideration of that issue.

Federal Special Education Statutes Create Neither a Cause of Action for Nominal Damages for Failure to Cooperate with Discovery, Nor a Damages Cause of Action against a Magnet School for Reasonable Admission Requirements

In Oman v. Portland Public Schools, published May 14, 2012, the 9th Circuit ruled that neither the Individuals with Disabilities Education Act nor 42 U.S.C. section 1983 created a cause of action for nominal damages for a school district's failure to provide discovery during an administrative due process proceeding arising out of a parent's complaint against the district.  The IDEA does not create a damages cause of action.  That includes nominal damages.  Section 1983 does not create a damages cause of action for any remedy available under the IDEA.  Since the parent could have obtained the discovery through the administrative proceeding (by making a formal request for it), she could not use section 1983 to seek damages, nominal or otherwise, for the failure to provide discovery.

The parent also sought money damages under the ADA and Section 504 of the Rehabilitation Act against the District for imposing an admission requirement for its magnet high school that incoming students write at an eighth grade level.  The ADA and Section 504 bar school districts from improperly excluding disabled students.  Imposing reasonable admission requirements does not improperly exclude disabled students.

Public Official Not Entitled to Qualified Immunity for Allegedly Retaliating against Employee for Employee's Subpoenaed Deposition Testimony in Civil Rights Lawsuit

In Karl v. Mountlake Terrace, published May 8, 2012, the 9th Circuit held that a public employee's subpoenaed deposition testimony, given in a 42 U.S.C. section 1983 case alleging the violation of a fellow employee's civil rights, is speech on a matter of public concern, given in the employee's capacity as a private citizen rather than as part of her job duties.  Therefore, under the analyses set forth in Garcetti v. Ceballos, 547 U.S. 410, 417 (2006) and Connick v. Myers, 461 U.S. 138, 140 (1983), the speech is protected by the First Amendment; and the employee has a cause of action under section 1983 if she suffers employment retaliation because of that speech.  The court further held that even though there was no circuit precedent in 2008 (when the retaliation is alleged to have occurred) holding that the speech was protected, a reasonable official in the defendant assistant police chief's position would have known the speech was protected by the First Amendment.  The assistant chief was therefore not entitled to qualified immunity for the alleged retaliation.

Private Attorneys Retained by Local Government to Do Its Work Are Entitled to Protections of Qualified Immuni

In Filarsky v. Delia, published April 17, 2012, the U.S. Supreme Court unaniously held that a private attorney whom a California city retained to conduct an employment investigation was entitled to qualified immunity.  The investigated employee sued the attorney and the city employees who participated in the investigation for allegedly violating his 4th Amendment rights by ordering him to take materials from inside his home and display them on his front lawn for inspection.  The district court held all of the defendants were entitled to qualified immunity, because the order did not violate clearly-established constitutional rights.  The Ninth Circuit upheld qualified immunity for all of the defendants except the private attorney.  The Supreme Court reversed.  The reasons for extending qualified immunity to public employees -- the desire not to chill government activity, the need to attract talented persons to do government work, and the policy of avoiding lawsuits that will interfere with the business of government -- apply to private individuals who are temporarily retained to do government work.

There were two concurring opinions.  Justice Ginsburg opined that whether the private attorney could establish the elements of qualified immunity remained in question.  Justice Sotomeyer opined that the analysis might differ depending on the task the private individual is performing for the government.

If Mobile Home Park Is Making Fair Rate of Return, It Has No Constitutional Right to Raise Rents to Market Rates

In Besaro Mobile Home Park v. City of Fremont, published March 14, 2012, the First District Court of Appeal, Division Five, rejected a mobile home park owner's argument that it was constitutionally entitled to raise its rents to market rates.  The owner argued that rent control is constitutionally limited to preventing "excessive" rents; and that, by definition, the market rate rent is not excessive because the market is willing to pay it.  The court opined that mobile home rent control laws are designed to protect unit owners because of their inherent disadvantage in negotiating rates -- i.e., because they cannot easily move their homes, they are subject to whatever rate the owner charges to rent them  the land under their homes.  The owner is constitutionally entitled only to charge enough rent to receive a fair rate of return.  Because there was no dispute that the owner was receiving such a rate, the appellate court upheld the trial court's decision refusing to grant the owner the rent increase he sought.

Supreme Court: Police Officers Generally Entitled to Qualified Immunity if Search Warrant Application Approved by Superior, D.A., and Neutral Magistrate

In Messerschmidt v. Millender, published February 22, 2012, the U.S. Supreme Court reversed an en banc 9th Circuit decision that a police officer was not entitled to qualified immunity for carrying out a search under a warrant.  The warrant was issued after the suspect's victim told police that the suspect was trying to kill her with a particular weapon, that he threatened her because she called the police on him, and that he was in a street gang.  The warrant application called for search and seizure of all firearms and firearm-related items in the suspect's residence, along with all gang-related materials.  The application was approved by the officer's superior and the district attorney.  A magistrate issued the warrant.  The officer seized a firearm from the persons at the residence, although the suspect was not there.  The persons at the residence then sued the officer for violation of the 4th Amendment.  The en banc 9th Circuit held that a warrant that called for seizure of all firearms (not just the one used in the crime) and gang materials was so obviously overbroad that no reasonable officer could have believed it valid; and ruled that the officer was not entitled to qualified immunity.

The Supreme Court majority agreed that an officer cannot rely on a warrant that is so deficient that no reasonable officer could rely on it, and will not be entitled to qualified immunity for relying on such a warrant.  But that is a rare exception to the rule that an officer who relies on a warrant approved by a neutral magistrate will generally be entitled to qualified immunity.  In particular, since this warrant contained only correct facts, did not omit material facts, and was approved by a superior, a prosecutor, and a neutral magistrate, a reasonable officer could have believed that the warrant was proper.  The majority did not rule on whether the warrant was in fact proper.  One concurring justice concluded the warrant was proper; another justice concluded that an officer could reasonably believe the warrant was proper as to the fireams but not as to the gang materials; and two justices dissented from the ruling.

County Sheriff Could Not Demote Lieutenant Sheriff for Opposing Him in Election; But Sheriff Entitled to Qualified Immunity

In Hunt v. County of Orange, published February 13, 2012, a divided 9th Circuit panel reversed a district court ruling that a county sheriff was within his right to demote a lieutenant sheriff who ran against the sheriff in an election, and criticized the sheriff during the campaign.  The First Amendment bars an elected official from firing or otherwise retaliating against employees for their political activities.  There is a narrow exception for employees in "policymaking" positions.  The lieutenant sheriff plaintiff was one of sixty lieutenants, and did not deal directly with the sheriff; but he was also the chief of police services for a city in the county.  The jury, in response to special interrogatories, concluded that the factors that render an employee a policymaker did not apply to the plaintiff.  The district court nevertheless concluded that the factors applied to the plaintiff, and that the sheriff therefore had the right to demote the plaintiff.  It alternatively ruled that the sheriff was entitled to qualified immunity.

The 9th Circuit panel majority reversed the district court's conclusion that the plaintiff was a policymaker.  The key question in determining policymaker status is not whether the factors of a mechanical test apply, but rather whether political loyalty is an appropriate requirement for the employee's performance of his or her duties.  The sheriff failed to prove that the lieutenant's loyalty to the sheriff was necessary to carrying out his duties.  The district court also concluded that the jury's findings established that the plaintiff was not a policyholder.  But because a reasonable elected official could have mistakenly concluded that the plaintiff was a policyholder, the majority affirmed the district court's conclusion that the sheriff was entitled to qualified immunity.

The dissenting judge opined that the plaintiff was a policyholder.

Where Decedent's Accomplice's Conviction Litigated Issue of Whether Officer Acted with Excessive Force, Decedent's Family Barred from Suing Officer for Use of Excessive Force

The Heck v. Humphrey preclusion doctrine bars a plaintiff who has been convicted of a crime from bringing a lawsuit under 42 U.S.C. section 1983 that, if successful, would invalidate the basis for the plaintiff's conviction.  In Beets v. County of Los Angeles, published February 10, 2012, the 9th Circuit applied the Heck v. Humphrey preclusion doctrine to a situation where the decedent's accomplice -- not the plaintiff or decedent -- was convicted.

The decedent was killed by police officers while he and the accomplice were fleeing and resisting arrest.  When the accomplice was prosecuted, the jury was asked to find that the officer who killed the decedent was acting in the scope of his duties and was not using excessive force.  Under these circumstances, the 9th Circuit ruled, the decedent's heirs were barred from suing the police officer for use of excessive force.

Ninth Circuit Rejects California Lower Appellate Courts' Decisions Concerning Discretionary Immunity for Foster Child Placement; Iqbal Standards Apply to Pleading Monell Liability

In A.E. v. County of Tulare, published January 27, 2012, the Ninth Circuit Court of Appeals reversed a district court's decision dismissing federal and state causes of action against a county defendant arising out of placement of a foster child in a home where another foster child allegedly attacked him.

The county contended that the district court properly dismissed the state law claims against it because California case law dictated public employees were entitled to discretionary immunity under Government Code section 820.2 for decisions concerning foster child placement.  The Ninth Circuit declined to follow this case law.  It determined that the decisions on the matter from lower appellate courts conflicted with California Supreme Court case law limiting discretionary immunity to policy decisions.  The court declared itself bound by the California Supreme Court's interpretation of the law.  Since the district court allowed the plaintiff to amend the complaint to state a negligence cause of action against the employees, it should have allowed the plaintiff to amend to state a claim against the county for vicarious liability under Government Code section 815.2.

The Ninth Circuit upheld the district court's decision to dismiss the plaintiff's allegations that the county was liable under 42 U.S.C. section 1983 for violating the foster child's rights through a custom, policy, or practice.  The allegations stated only the bare elements of municipal liability.  Although the Ninth Circuit's case law had previously approved that sort of pleading as sufficient, Ashcroft v. Iqbal, __ U.S.__, 129 S.Ct. 1937 (2009) requires a plaintiff to plead plausible facts in support of section 1983 causes of action.  That standard applies to Monell liability of municipalities.  But the district court erred in failing to allow the plaintiff to amend these allegations.