Government Liability Update

Pre-Trial Detainee's Constitutional Right to Have a Proper Medical Screen Conducted Clearly Established; Right to Direct-View Safety Checks Was Not

In Gordon v. County of Orange, published July 26, 2021, the 9th Circuit Court of Appeals affirmed in part and reversed in part summary judgment in favor of the defendant county and jail employees in a 42 U.S.C. section 1983 case.  The decedent f was arrested on heroin-related charges.  During his intake at the county jail, the decedent informed the defendant nurse at intake of his heroin habit.  Two detoxification protocols existed for assessing inmates suffering from substance withdrawal:  one for alcohol (CIWA) and one for opiates (COWS).  Jail staff used the CIWA protocol, rather than COWS.  A defense expert opined that CIWA was appropriate for a poly-drug abuser.  An expert for the plaintiff opined that if COWS had been used, the decedent would have been housed in the medical observation unit instead of general population, and would have been monitored more closely.  After his intake, the decedent was not assessed as he waited nearly ten hours to enter the general population.  When he entered general population, no CIWA or other evaluation of decedent occurred that day.  Although state regulations required hourly safety checks through direct visual observation, and the sheriff's department had a policy that the checks be conducted with a clear, direct view of the inmate, a defendant deputy conducted two of the safety checks from 12-15 feet away, too far away to ascertain whether decedent was breathing or alive.  A few hours after entering his cell, decedent was found unresponsive, his face blue and his skin cold.  He was pronounced dead.  The case was the subject of an earlier appeal, in which the 9th Circuit ruled that inadequate medical care claims brought by pretrial detainees required a showing of objective deliberate indifference.  After remand, the district court allowed additional expert discovery, and granted summary judgment for the individual defendants based on qualified immunity and for the county on the ground that the plaintiff could not establish Monell liability.

The 9th Circuit reversed the finding of qualified immunity for the nurse and observing deputy.  Regarding the nurse, the 9th Circuit ruled that in 2013, when the incident occurred, a body of authority clearly established that a pretrial detainee had a constitutional right to have a proper medical screen conducted to ensure the medically appropriate protocol was initiated. She was therefore not entitled to qualified immunity under the second prong of the immunity. The case against her was remanded for a factual analysis of whether, under the first prong of qualified immunity, she violated that clearly-established right.  As for the observing deputy, the 9th Circuit concluded that while pretrial detainees have a constitutional right to direct-view safety checks sufficient to determine whether their presentation indicates the need for medical treatment, that right was not clearly established in 2013.  The 9th Circuit affirmed the grant of summary judgment to the county, because a single incident is insufficient to establish a custom, policy, or practice sufficient to support Monell liability.

Under California Public Records Act, Public Interest in Protecting Contact Tracing Outweighs Public Interest in Disclosing Locations of COVID-19 Outbreaks

In Voice of San Diego v. Superior Court (County of San Diego), published July 16, 2021, the Fourth District Court of Appeal, Division 1 declined to issue a writ of mandate disturbing a trial court's decision on a California Public Records Act petition.  The petitioner news media organizations made a CPRA request for records showing the locations of all businesses or other entities where COVID-19 community outbreaks have occurred from March 1, 2020 through July 15, 2020.  The county responded by producing a spreadsheet of outbreaks redacting the names and addresses for the locations of outbreaks.  The county provided an explanation that the public interest in protecting a candid exchange of information between those linked to the outbreak locations and the county Public Health Officer's disease investigators, to permit contact tracing.  The explanation also stated that publicly releasing specific locations after the outbreak had taken place would not protect the public.  The county asserted that the information was exempt from the public under the CPRA's catch-all provision, Government Code section 6255(a), which permits nondisclosure where the public interest served by not disclosing the record outweighs the public interest in disclosure.  The county submitted the declaration of the county's public health officer in support.  The trial court denied the writ petition seeking to enforce the CPRA request.

The appellate court agreed that the catch-all exemption applied.  Although the court could reject the health officer's expert opinion if it were unduly speculative or lacked a proper basis.  But her declaration was specific and based on her expertise and extensive experience.  The petitioners did not submit any contrary evidence.  That the county had released location information for outbreaks of other diseases, and COVID-19 information for a university, did not undermine the officer's opinion.  The county provided valid explanations that when outbreaks of conditions such as hepatitis A or tuberculosis, the public could take specific action in response to protect themselves and avoid further spread.  By contrast, the county established, when the public visits a location where a COVID-19 outbreak had occured, the public does not need to take any additional protective measures because community transmission of COVID-19 is widespread.  The county showed that the public interest in promoting contact tracing by keeping information about locations confidential outweighs the public interest in knowing the locations of outbreaks to protect themselves, and determining the effectiveness of government efforts to combat COVID-19 by knowing specific locations of outbreaks.

For Heck v. Humphrey Purposes, Conviction for Violation of PC 148(a)(1) Establishes That Officer’s Use of Force During Arrest Was Lawful

In Lemos v. County of Sonoma, published July 16, 2021, a divided panel of the 9th Circuit Court of Appeals affirmed summary judgment in favor of defendants in the plaintiff’s suit under 42 U.S.C. section 1983 for alleged use of excessive force.  One of the defendant officers saw a pickup truck obstructing a lane of traffic and heard screaming.  The plaintiff attempted to interfere with the officer’s interview of the pickup’s occupants.  The plaintiff started walking away from the truck and did not respond to the officer’s order to stop.  The officer grabbed her shoulder and brought her to the ground.  The plaintiff was prosecuted for violation of Penal Code section 148(a)(1)—resisting, delaying, or obstructing an officer in the performance of his duties.  The jury was instructed that the would have to find that the officer was lawfully performing or attempting to perform his duties as a peace officer, and that a peace officer is not lawfully performing his duties if the officer is using unreasonable or excessive force in his duties.  The jury was further instructed that the plaintiff could be found liable on one of four different theories of liability, representing different acts plaintiff performed during the officer’s investigation of the truck.  The jury convicted her, using a general verdict.  The district court granted summary judgment, on the grounds the Heck v. Humphrey doctrine barred the action.On appeal , the plaintiff contended that the jurors in the criminal trial did not necessarily find that she was guilty of pulling away from the arresting officer at the time he arrested her, and she could therefore sue the officer for using excessive force in response.

 

The majority affirmed summary judgment.  Under the Heck v. Humphrey doctrine, when a plaintiff who has been convicted of a crime under state law seeks damages in a section 1983 suit, the district court must consider whether a judgment in favor of the plaintiff would necessarily imply the invalidity of his conviction or sentence.  A plaintiff’s allegation of excessive force by a police officer is not barred by Heck if the officer’s conduct is distinct temporally or spatially from the factual basis of the plaintiff’s conduct.  Under Heck, the relevant inquiry is whether the record contains factual circumstances that support the underlying conviction under section 148(a)(1), not whether the conviction was obtained by a jury verdict or a guilty plea.  A conviction under section 148(a)(1) is valid only when the officer was acting lawfully at the time the offense against the officer was committed.  Here, by finding the plaintiff guilty, the jury was finding that the officer acted lawfully through the continuous chain of events that day, even when he placed the plaintiff under arrest.

 

A dissenting judge opined that the decision would encourage officer overreaction to minor criminal behavior.

Tolling of Statute of Limitations for Minor's Suit includes the Date of the Minor's 18th Birthday

In Shalabi v. City of Fontana, published July 12, 2021, the California Supreme Court affirmed a lower appellate court's decision that a 42 U.S.C. section 1983 lawsuit against the defendant city was filed within the statute of limitations.  The plaintiff alleged that on May 14, 2011, a city police officer wrongfully shot and killed the plaintiff's father.  The plaintiff was a minor at the time.  The minor's 18th birthday was December 3, 2011.  The minor filed suit December 3, 2013.  The trial court held a bifurcated bench trial on whether the suit was barred by the two-year statute of limitations.  The trial court concluded that the minor filed the suit one day late.  Although the statute of limitations was tolled while the plaintiff was a minor, the trial court relied on the unpublished California Supreme Court decision in Ganahl I, which included the date the minor plaintiff in that case reached the age of majority in calculating when the statute of limitations period commenced after tolling during minority ended.  The appellate court reversed, holding that the minor's 18th birthday should have been excluded in calculating when tolling ended and the statute of limitations began.

The California Supreme Court agreed. State law controls tolling of the statute of limitations for a section 1983 claim. Under Code of Civil Procedure section 352(a), when a minor is injured, the statute of limitations is tolled until the minor turns 18.  Code of Civil Procedure section 12 sets forth the ordinary rule for computing time.  Under it, the time within which any act provided by law is to be done is computed by excluding the first day and including the last (unless the last day is a holiday).  A uniform rule governing the method of computing time promotes clarity and stability. A case will not be
found to come under an exception to the general rule unless there is a clear expression of provision for a different method of computation.  There is no such expression concerning minors.  The Ganahl I case is not binding authority, because there was an in-bank decision after it; and it is not persuasive authority.  Because the plaintiff's December 3, 2011 birthday was included in the tolling period, the lawsuit brought December 3, 2013 was timely.

Government Code Hazardous Recreational Immunity Applies to Liability from Hazardous Activities, even if Liability Is Not Related to Property

In Haytasingh v. City of San Diego, published July 9, 2021, the Fourth District Court of Appeal, Division 1 affirmed in part and reversed in part a decision for the defendant city in a personal injury case.  One of the plaintiffs was surfing.  A city lifeguard was operating a city-owned personal watercraft on city business.  Although the parties’ versions of the accident differed, the plaintiffs alleged the lifeguard was operating the watercraft inside the surfline, parallel to the surfer plaintiff, and made a left turn in front of him.  To avoid a collision, the surfer plaintiff dove off his board and struck his head on the ocean floor, sustaining serious injuries.  He and his wife sued the city and the employee.  The trial court granted summary adjudication of the plaintiffs’ cause of action, ruling that Government Code section 831.7’s immunity for public entities and employees from liability for injuries that arise out of hazardous recreational activities (which the statute defines to include surfing) applied.  The plaintiffs amended their complaint to allege two exceptions to section 831.7:  gross negligence; and failure to warn of another hazardous recreational activity.  The case proceeded to trial.  At trial, the court declined to give the plaintiffs’ requested jury instruction that city lifeguards were required to comply with the basic speed law set forth in Harbors and Navigation Code section 655.2.  Section 655.2 limits the speed of vessels operated within 100 feet of bathers to five miles per hour, unless the vehicle is engaged in law enforcement and displaying the required lights (which the lifeguard’s watercraft was not).  The jury found for the defendants.

The appellate court affirmed the summary adjudication of the negligence cause of action.  It rejected the plaintiffs’ contention that Government Code section 831.7, like the statute it was purportedly designed to mirror, Civil Code section 846, was limited to premises liability.  Unlike the language of section 846, which focuses on premises, the broad language of section 831.7 focuses on the hazardous recreational activity itself, by negating any liability for injuries arising out of that activity.  Because surfing is one of the activities listed in the statute as a hazardous recreational activity, the plain language of the statute established it applied.  But the court also ruled that the trial court erred in concluding that the application of Harbors and Navigation Code section 655.2 was preempted by a municipal code ordinance, which limited speed to five miles per hour but exempted governmental employees from the speed limit.  Although section 655.2 provides that it applies if the area is not otherwise regulated by local rules and regulations, and section 660 allows local governmental entities to adopt additional regulations if they do not conflict with the Harbors and Navigation Code, the court ruled that the municipal code section did conflict with the Code.  The court further concluded that the instructional error was prejudicial.

Employee Excused from Exhausting Administrative Remedies if Official Who Has Animosity toward Employee and Who Is Central to Controversy Will Be a Decisionmaker

In  Briley v. City of West Covina, published July 1, 2021, the Second District Court of Appeal, Division 4 affirmed in part and reversed in part a judgment after jury trial in favor of the plaintiff in an employment retaliation case.  The plaintiff was a deputy fire Marshal.  He complained  to the city that various city officials had ignored his reports of misconduct, and had engaged in misconduct.  The officials included the Fire Marshal, the plaintiff’s then direct supervisor.  After making those allegations, the plaintiff additionally complained that the Marshal and others had retaliated against him.  He also filed grievances with the city’s HR commission, raising the retaliation claims.  The Marshal later testified at a deposition that his working relationship with the plaintiff had become strained, that the plaintiff had tried to undermine his authority, and that the plaintiff had tried to intimidate him.  While the investigation of the plaintiff’s claims was pending, the Marshal informed the city manager of multiple complaints against the plaintiff involving allegations of misconduct and unprofessional behavior.  The Marshal, who had been elevated to Fire Chief, issued the plaintiff a notice of intent to terminate.  A pre-termination hearing upheld the termination.  The plaintiff began an appeal to the city’s HR commission.  The ultimate decision makers following the commission’s review would have been the Fire Chief, as the original decisionmaker, and the city manager.  The plaintiff ceased pursuing his appeal, notifying the commission that doing so would be futile.  The plaintiff brought this lawsuit.  The trial court concluded that the plaintiff was excused from pursuing an appeal to exhaust his administrative remedies.  The plaintiff obtained a jury verdict against the city under Labor Code section 1102.5 (retaliation for whistleblowing).  The jury awarded him over $500,000 in economic damages, $2 million in past noneconomic damages, and $1.5 million in future noneconomic damages.

 

The appellate court affirmed the portion of the verdict holding the city liable.  The appellate court rejected the city’s argument that the plaintiff had failed to exhaust his administrative remedies.  A party must generally exhaust all available nonduplicative administrative review procedures before resorting to the courts.  This doctrine is subject to several exceptions.  Exhaustion is excused if the relevant administrative procedure fails to satisfy the standards of due process.  Due process entitles a person seeking administrative review to a reasonably impartial, noninvolved reviewer.  The Marshal/Chief’s expected role in deciding the plaintiff’s administrative appeal presented an unacceptable risk of bias that excused the plaintiff from exhausting the remedy.  A conflict between the employee and supervisor alone will not disqualify the superior from serving as a decisionmaker.  Nor must a decisionmaker be completely insulated from any matter relevant to the proceeding.  But under due process, an official whose prior dealings with the employee have created substantial animosity, and whose own character and conduct are central to the proceeding, may not serve as a decisionmaker.

 

The appellate court concluded, however, that the damages awarded were excessive.  The court offered the plaintiff a choice of a remittitur or a new trial on damages.

A Section 1983 Action for a Taking Does Not Require Exhaustion of Administrative Procedures to Be Final

In Pakdel v. City and County of San Francisco, published June 28, 2021, the U.S.U.S. Supreme Court, per curiam vacated and remanded a 9th Circuit decision.  Plaintiffs challenged a city requirement that they offer a tenant in a tenancy-in-common a lifetime lease as a condition of converting to condominium ownership.  The city refused to exempt them from the requirement or compensate them for the lease.  They sued, alleging the lease requirement was an unconstitutional taking.  The district court ruled that the plaintiffs had to seek compensation through state law procedures before seeking compensation under federal law.  While their appeal was pending, the Supreme Court decided Knick v. Township of Scott, which repudiated the requirement that a plaintiff must seek compensation in state court.  The 9th Circuit nevertheless affirmed dismissal.  It ruled that Knick left untouched the requirement that plaintiffs may challenge only final government decisions.  The 9th Circuit concluded that the regulatory takings claim remained unripe because the plaintiffs had made a belated request for an exemption at the end of the administrative process instead of timely seeking one through the prescribed procedures.

The Supreme Court held that the 9th Circuit misapplied the finality requirement.  Nothing more than de facto finality is necessary.  Once the government has committed to a position, the dispute is ripe for judicial resolution.  The 9th Circuit's demand that a plaintiff seek exemption through the prescribed state procedures is an exhaustion requirement.  Exhaustion is not a prerequisite for a section 1983 takings claim when the government has reached a conclusive position.  Administrative missteps do not defeat ripeness once the government has adopted its final position.  Because the city twice denied the plaintiffs' requests for an exemption or compensation, the city's decision was final and ripe.

Court Must Analyze Facts and Circumstance to Determine Whether Officers Used Unconstitutional Amount of Force

In Lombardo v. City of St. Louis, published June 28, 2021, the U.S. Supreme Court, in a split per curiam opinion, reversed and remanded a summary judgment granted in favor of police officers.  The plaintiffs' decedent was arrested for trespassing and failure to appear in court for a traffic ticket.  While he was in jail, the decedent put a piece of clothing around his neck and tied it to the bars of his cell.  Multiple officers entered his cell. The decedent resisted. The officers handcuffed the decedent and put him in leg irons.  They moved him into a prone position, and an officer placed pressure on the decedent's back and torso.  After 15 minutes of struggling in this position, the decedent expired.  The decedents parents sued the police officers under 42 U.S.C. section 1983.  The district court granted summary judgment on the ground of qualified immunity.  The circuit court affirmed on the ground that the officers did not apply unconstitutionally excessive force.

The majority reversed the circuit court decision.  In assessing whether officers used excessive force, a court asks whether the offices' actions are objectively reasonable in light of the facts and circumstances confronting them.  Courts cannot apply the standards mechanically.  It requires careful attention to the facts and circumstances of each particular case.  Circumstances include the relationship between the need for the use of force and the amount of force used; the extent of the plaintiff ’s injury; any effort made by the officer to temper or to limit the amount of force; the severity of the security problem at issue; the threat reasonably perceived by the officer; and whether the plaintiff was actively resisting.  The majority ruled that it was unclear whether the circuit court thought the use of a prone restraint is per se constitutional so long as an individual appears to resist officers' efforts to subdue him, no matter the kind, intensity, duration, or surrounding circumstances.  Factors such as the agency instructing its officers that pressing down on the back of a prone suspect can cause suffocation, and police guidance to get a subject off his stomach as soon as handcuffed to avoid suffocation and that struggles may be due to oxygen deficiency rather than desire to disobey officer commands, may be pertinent, along with the duration of the restrain and the fact the decedent was shackled.  The court expressed no view on whether the use of force was excessive or whether the officers were entitled to qualified immunity, but remanded the summary judgment to the circuit court.

Three justices dissented, opining the court should either deny review, or grant review and have the matter briefed and argued before deciding it.  

Student's Profane Social Media Post Complaining about School Protected by First Amendment

In Mahoney Area School District v. B.L., published June 23, 2021, the U.S. Supreme Court, ruling 8-1, affirmed a circuit court decision that the defendant school district's discipline of the plaintiff violated the First Amendment.  The plaintiff was denied a position on her high school's varsity cheerleading squad and the right fielder position on a private softball team.  While off-campus, the plaintiff posted on Snapchat (a social media app that allows users to post photos to friends that disappear after a set period) a photo with her and a friend posing with middle fingers extended.  The caption read:  "F__ school f___ softball f___ cheer f___ everything."  She also posted a blank image with a caption complaining about the cheerleading situation.  A friend took a picture of the post and shared it with other members of the cheerleading squad.  The photos eventually came to the attention of cheerleading coaches.  The coaches and the principal concluded that because the posts used profanity in connection with a school extracurricular activity, they violated team and school rules.  The coaches suspended the plaintiff from the junior varsity cheerleading squad for the upcoming year.  The plaintiff sued the district, contending that the discipline violated her First Amendment rights.  The district court found in the plaintiff's favor, and the circuit court affirmed.

The Supreme Court majority ruled that the conduct was protected by the First Amendment.  Past Supreme Court cases have outlined the protection for student speech on campus.  The special characteristics that give schools additional license to regulate student speech do not always disappear when a school regulates off-campus speech.  The court declined to set forth a broad First Amendment rule stating what counts as "off campus" speech, or whether or how First Amendment standards must give way off campus to a school's special need to prevent substantial disruption of learning-related activities or protection of the school community.  But three features of off-campus speech often distinguish schools' efforts to regulate that speech from on-campus speech:  the school will rarely stand in loco parentis in relation to off-campus speech; regulation of off-campus and on-campus speech would mean regulation 24 hours a day (so schools must meet a heavy burden when regulating off-campus religious or political speech); and the school has an interest in protecting a student's unpopular expression, especially off-campus, so that future generations understand the "marketplace of ideas."  These features of off-campus speech diminish the leeway the First Amendment grants to schools in light of their special characteristics.  Here, the plaintiff's speech did not involve features that would put it outside First Amendment protections.  The posts did not amount to fighting words, and while crude, they were not obscene.  If an adult spoke such words, she would receive strong First Amendment protection.  The student posted off-campus, during non-school hours, did not identify the school, and did not target any member of the school committee.  The means of posting diminished the school's interests in regulation. There was no record that the posts had the sort of substantial disruption of school activity, or threatened harm  rights of others, that might justify the school's actions.

Justice Thomas dissented.  He opined that precedent supported the coaches' actions in disciplining off-campus speech.

Time to File Suit in State Court Is Tolled While Federal Action Is Pending, Through Mandate Issued in Appeal of Right

In Sales v. City of Tustin, published June 8, 2021, the Fourth District Court of Appeal, Division 3 reversed summary judgment in favor of the defendant city, granted based on the statute of limitations.  Plaintiff alleges her decedent fled an improper detention, was chased into traffic, and was killed.  On the last day to file a lawsuit under California law (six months after her claim was denied), the plaintiff filed a suit in federal court alleging federal and state causes of action.  The district court denied a defense summary judgment motion based on qualified immunity.  The defendants took an interlocutory appeal to the 9th Circuit.  That court reversed the denial of summary judgment.  On remand, the district court concluded that the appellate ruling resolved all of the federal claims in favor of the defendants, and entered judgment on those claims.  The court declined supplemental jurisdiction over the state law claims, and dismissed them.  That occurred in 2016.  The plaintiff appealed the result to the 9th Circuit.  The 9th Circuit affirmed the decision.  The court then denied a rehearing en banc.  The court issued its mandate on December 5, 2018.  The plaintiff refiled her state law causes of action in state court on December 19, 2018.  The trial court granted the defendants summary judgment on the ground that under 28 U.S.C. section 1367, the plaintiff's time to file her state court claim was tolled only until the district court dismissed the state law claims in 2016.

The appellate court concluded that the trial court interpreted section 1367 incorrectly.  Section 1367 governs supplemental jurisdiction over state law claims in federal court.  Subdivision (d) provides that the period of limitations for any state claim joined with federal claims shall be tolled while the claim is pending in federal court, and for a period of 30 days after it is dismissed.  The appellate court joined the majority of courts to extend the tolling deadline through the pendency of an appeal of right, through the mandate returning the appeal to the district court, and then for 30 days after the mandate.  That the appeal addressed only the dismissal of the federal claims, and not the state claims, did not matter; if the federal court had reversed judgment on the federal claims, the district court might have reasserted jurisdiction over the state law claims.