Government Liability Update

Limiting Public Entity Liability for Employees' Criminal Acts

De Villers v. County of San Diego, decided by the Fourth District Court of Appeal, Division One, deals with a real-life crime that would make a decent plot for a "CSI" episode:  A former meth addict becomes a medical examiner and starts an affair with a co-worker.  Her husband finds out, and threatens to expose her.  She calls 911 and reports that her husband has stopped breathing.  The paramedics arrive and find the husband on the floor, with rose petals strewn around his body.  It turns out that the medical examiner poisoned her husband with drugs she stole from work.

A jury found the county liable for both negligent hiring/supervision and breach of mandatory duty.  The appellate court reversed on both grounds.

First, the court ruled that the county could not be held vicariously liable for its managerial employees' failure to properly inspect the examiner's background or prevent her crimes.  The county could not be held liable unless the subject employees could be held individually liable, the court held.  And unless the employees had actual knowledge that the examiner posed a criminal threat to her husband, they had no duty to prevent the criminal attack.  The county therefore could not be held vicariously liable.

Second, the court ruled that because no statute makes the county directly liable for negligent hiring or supervision, the county could not be held directly liable for those torts.  It held that past cases finding public employers directly liable for negligently hiring/supervising those who commit criminal acts (such as teachers who molest students) were no longer good law, after California Supreme Court cases that rejected common-law negligence claims against public entities.

Finally, the court rejected the theory that the county could be held directly liable under Government Code section 815.6 for breaching a mandatory duty:  a federal regulation that required it to provide effective controls and procedures to gaurd against theft of controlled substances.  The court held that the regulation was not a mandatory duty, because it did not impose a mandatory obligation to guarantee no drugs would ever be stolen, and did not mandate any particular method of keeping the drugs secure; it only set goals.  The steps taken to meet those goals were discretionary, not mandatory.  Further, there was no evidence that the regulation was designed to guard against this particular type of injury -- use of the drugs to commit premeditated murder.

This case's application should not be limited to its lurid facts.  It should apply whenever plaintiffs attempt to hold public employers liable for their employees' criminal acts.  It demonstrates the high standard plaintiffs must meet to do so.

New Protection for Government Employers

In Garcetti v. Ceballos (May 30, 2006) 547 U.S. __, the U.S. Supreme Court has ruled that public employees do not enjoy First Amendment protections for communications made in the scope of their official duties. 

Ceballos was a calendar deputy for the District Attorney's office.  It was undisputed that part of his job was to review defense attorneys' motions to challenge warrants; and write disposition memos about those motions to his department.  Ceballos prepared one such memo that argued a deputy's warrant affadavit contained misprepresentations.  He recommended that the prosecution relating to the warrant be dismissed.  He alleged that the DA's office retaliated against him for the memo.  The Ninth Circuit concluded that the First Amendment protected his speech, based on his complaint's allegations.

In a 5-4 decision, the Supreme Court reversed:

"We hold that when public employees make
statements pursuant to their official duties, the employees
are not speaking as citizens for First Amendment purposes,
and the Constitution does not insulate their communications
from employer discipline."

The test is whether the statement was one that was part of the employee's official duty.  It makes no difference that the employee subjectively felt he was acting as a citizen when he spoke.

The court expressly declined to decide whether and how their rule applies to teachers and professors.