Government Liability Update

District Court Lacks Inherent Authority to Impose Presumption Instruction as Sanction for Inadvertent Loss of Electronically-Stored Information

 

In Gregory v. State of Montana, published September 27, 2024, the 9th Circuit Court of Appeals reversed a judgment against the defendant probation officer and state.  There was an altercation between the plaintiff and the officer in the probation office parking lot that ended with the plaintiff’s arrest.  The incident was captured on an external surveillance camera that monitored the parking lot and that was operated by the probation office.Four days after the incident, the plaintiff’s criminal defense attorney contacted the department of corrections to request the parking lot footage.  The person who attempted to provide the footage did not realize that the surveillance footage would be automatically deleted in 17 days.  His various attempts to capture the footage ran into technical difficulties.  He took a cellphone video of the footage and provided that, but it was too poor to make out what it depicted.  The original footage was eventually deleted.  The plaintiff sued the probation officer under 42 U.S.C. Section 1983 for use of excessive force and a state law claim for assault and battery, and sued the state for negligent infliction of emotional distress.  The plaintiff brought a motion for sanctions against the state based on the loss of the parking lot footage.  The court granted the motion in part.  It rejected the plaintiff’s claim for a default judgment, and instead, invoking its inherent authority, the court instructed the jury that the probation officer used unreasonable force in the seizure of the plaintiff; and submit to the jury the issues of causation, damages, and punitive damages.  The cellphone video was played to the jury, but instructed the jury that because the state had failed to preserve the video, the jury was permitted to infer that the lost footage would have been favorable to the plaintiff.  The court instructed the jury that it had been established as a matter of law that the probation officer used excessive force against the plaintiff in violation of the 4th Amendment.  The jury awarded the plaintiff $75,000 in damages, and plaintiff obtained attorney fees.

 

The 9th Circuit ruled that the district court had erred in giving the instruction.  Although district courts have inherent authority to fashion their own sanctions for conduct that abuses the judicial process, that authority can be limited by statute and rule.  FRCP 37(e) has prescribed sanctions for loss of electronically-stored information due to failure to take reasonable steps to preserve it.  The court may order measures no greater than necessary to cure the prejudice.  Only upon finding that the party acted with intent to deprive another party of the information may the district court instruct the jury that it may or must presume the information was unfavorable to the party, dismiss the action, or enter a default judgment.  The sanction here fell within the category of sanctions that may be entered only for intentional conduct.  The rule precludes a district court from resorting to inherent authority to evade its strictures.  The case was remanded for a new trial.

Divided Appellate Court Affirms Judgment Apportioning 100% Fault to Entity That Failed to Prevent Molestation and 0 to Molester

In A.H. v. Tamalpais Union High School Dist., published September 9, 2024, the First District Court of Appeal, Division 2 affirmed a judgment against the district entered after jury trial.  The plaintiff was molested by his school tennis coach.  Before the molestation occurred, the school principal received a report that the coach had touched a student's genitals while measuring body fat.  After investigation, the principal wrote the coach a letter of warning in which he stated he would create a protocol for body fat measurement.  The principal did not place the letter in the coach's personnel file, did not create the protocol, and did not tell other P.E. teachers or supervisors about the complaint.  Before plaintiff's molestation, the coach improperly touched multiple other students during body fat measurements and massages.  After the plaintiff graduated, the principal received a second complaint about the coach involving a body fat test.  In closing argument, the plaintiff asked the jury to apportion 90% fault to the district and 10% to the coach.  The district's counsel asked the jury to apportion 75-90% fault to the coach.  The jury awarded $10 million in noneconomic damages, and apportioned 100% responsibility to the district and 0% to the coach.  The district did not criticize the verdict regarding apportionment of fault after the jury returned it.  The district did not move for new trial.  The district appealed, arguing that the trial court failed to properly instruct the jury and that the fault apportionment showed the error was prejudicial.  It also argued that the trial court abused its discretion in admitting evidence of the molestations that were not reported to the district, the complaint after the plaintiff graduated, and of the coach's conviction 16 years after the plaintiff graduated.

The court rejected the claims of error.  The district complained that the trial court did not give its requested instructions that the district could not be held vicariously liable for the molestation, and could be held liable only for supervisors' negligence in hiring, supervision, and retention.  The appellate court ruled that the instructions given adequately communicated these concepts to the jury.  The district argued that the trial court should have given the district's proposed special instruction based on language in C.A. v. William S. Hart Union High School Dist. (2012) 53 Cal.4th 861 noting that ordinarily lie with the individual who intentionally abused or harassed the students, and that the fact should be reflected in any allocation of comparative fault.  The court agreed with the trial court that the language did not create an actual standard, but was instead a comment by the Supreme Court regarding what happens at times.  CACI No. 406, which was given, correctly instructs the jury on apportionment.  Instructing the jury with the proposed language would have confused the jury.  Because the district failed to show instructional error, the majority declined to reach the district's argument that the "legally impossible" verdict apportioning no fault to the molester showed prejudicial error.  The court noted that the district did not separately claim insufficiency of the evidence as to the jury's apportionment finding.  The court also rejected the evidentiary arguments, finding the trial court did not abuse its discretion in deeming the unreported molestations relevant to the pervasiveness of the coach's molestation and the negligence of the supervisors in failing to detect or prevent it, the subsequent molestation as relevant to lack of reasonable supervision following the earlier complaint, and the later conviction relevant to damages because the plaintiff testified at the criminal trial.

A dissenting justice opined that despite the district's failure to raise insufficiency of the evidence to attack the fault apportionment, the court should have addressed the issue sua sponte and reversed the apportionment as improper as a matter of law.  The justice urged the California Supreme Court to grant review of the decision.

Qualified Immunity Applied to Use of Force to Handcuff Struggling Suspect Who Had Struck Officer, but Not to Kneeling on Subdued Suspect

In Spencer v. Pew, published September 16, 2024, the 9th Circuit affirmed in part and reversed in part summary judgment for the defendant officers.  The vehicle in which the plaintiff rode pulled out of a driveway directly in front of an unmarked police car.  Defendant officers stopped the car for an unsafe maneuver.  The plaintiff appeared nervous, and gave officers a false name.  When the deception was discovered, the officers ordered the plaintiff out of the car and to put his hand behind him, as he was under arrest.  When an officer pulled the plaintiff's wrist behind him, the plaintiff hit the officer in the chest with his shoulder.  The officers then spent three and a half minutes struggling with the plaintiff and putting him in handcuffs.  During the struggle, officers punched, kicked, and repeatedly tased the plaintiff.  After he was double-handcuffed and subdued on the ground, an officer knelt on the plaintiff's back, despite the plaintiff's protests that he could not breathe.  The plaintiff sued the officers under 42 U.S.C. section 1983 for use of excessive force.  The district court granted the officers summary judgment based on qualified immunity, ruling that the officers had not violated clearly-established law.

The 9th Circuit agreed that the officers who struggled to subdue the plaintiff were entitled to qualified immunity.  Under the circumstances, including the plaintiff striking an officer and then resisting arrest for a long period, the use of excessive force was not obvious.  The plaintiff therefore had the burden of identifying case law that was not materially distinguishable and therefore would put the officers on notice that their actions violated the 4th Amendment.  The plaintiff failed to identify any such law.  On the other hand, existing case law put the officer who knelt on the plaintiff's back after he ceased resisting and protested he could not breathe on notice that he was violating the 4th Amendment.  The court rejected an argument that the officers who held the plaintiff while the other officer knelt on him were liable under the integral-participant doctrine.

Posting Arrestees' Personal Information without Rational Relation to Proper Purpose Violated Substantive Due Process

In Houston v. County of Maricopa, published September 5, 2024, the 9th Circuit Court of Appeals affirmed in part and reversed in part the dismissal of a putative class action under 42 U.S.C. section 1983.  The county published a Mugshot Lookup website on which it posted photographs and extensive personal identifying information about arrestees.  The photographs and information remain up for three days, and then are taken down.  In the meantime, the photos and information are often gathered by other Internet sites and therefore remain available.  The county justifies the the practice as promoting transparency in the criminal legal system.  The page does not contain information about the police who made the arrest, whether charges were pursued or dismissed, or the jail in which the arrestee is held.  The plaintiff was arrested, and his photo and identifying information were posted on the website.  He was never prosecuted on the charges noted on the post, which were later dropped.  The plaintiff alleged the county's conduct violated due process under the Fourteenth Amendment, the Fourteenth Amendment's Equal Protection Clause, and the Sixth Amendment.  The district court dismissed the action and denied the requested class certification as moot.

The 9th Circuit agreed that the posting did not violate Procedural Due Process or the Sixth Amendment.  But it ruled that the plaintiff had plausibly pleaded a substantive due process claim based on pretrial punishment.  The Due Process Clause protects pretrial detainees from punishment before adjudication of guilt.  To constitute punishment, a government action must harm a detainee and be intended to punish him.  Punitive purpose is assessed by considering whether the challenged conduct operates as a punishment, or whether it is but an incident of some other legitimate governmental purpose.  Based on the plaintiff's allegations, the posting caused him harm and public humiliation.  He alleged the posting permanently damaged his business and personal reputation.  The purported public purpose for the posting, transparency, does not establish a legitimate governmental objective.  The government did not make a showing that the posting promoted public safety.  Further, the posting is not rationally related to any such interest.  The county posted only information about the arrestee, and no information about the government activity leading to the arrest.  The county did not explain why the detailed information about the arrestee posted was necessary to public safety.  There was therefore a sufficient inference of punitive purpose to avoid dismissal

Legal Developments Favorable to Defendant That Occur After Incident Do Not Affect Whether Law Clearly Established at Time of Incident

In Sanderlin v. Dwyer, published September 4, 2024, the 9th Circuit affirmed the district court's denial of the defendant police officer's summary judgment motion.  During a mass protest, the plaintiff stood in front of the defendant officer, holding a sign.  The officer was equipped with a 40 mm launcher, capable of firing foam baton rounds.  The officer yelled, "I'm going to hit you, dude.  You better move!"  The plaintiff failed to immediately comply.  A few seconds later, the officer fired a foam baton at the plaintiff, striking him in the groin area.  The officer's body cam showed the suspect staggering away from the impact, unable to stand or walk properly.  He sustained severe injuries and required emergency surgery.  The officer contended that he was tracking two subjects who looked like they would throw paint at officers, and that the plaintiff was deliberately blocking the subjects from view.  The plaintiff denied this.  The plaintiff alleged the officer used excessive force against him in violation of both the 1st and 4th Amendment.  The officer moved for summary judgment on both prongs of qualified immunity.  The district court ruled that under the plaintiff's version of the events, a jury could find that the officer violated the plaintiff's rights; and that the violations were clearly established.

The 9th Circuit court agreed.  Regarding the 1st Amendment claim, it was clearly established at the time that police officers may not use their authority to retaliate against individuals for protected speech.  If a factfinder determines the officer's actions were retaliatory, his actions would violate clearly-established law.  Regarding the 4th Amendment claim, the court ruled that a reasonable factfinder could conclude the plaintiff was seized under the 4th Amendment, because the officer intentionally applied physical force and as a result the plaintiff's freedom of movement was restrained, even though he was able to walk away.  That the officer did not subjectively intend to restrain the plaintiff is immaterial, since the focus is on whether the conduct objectively manifests an intent to restrain, rather than on the officer's subjective intent.  There was a triable issue on whether the force used was excessive, and thus whether the use of force violated the 4th Amendment.  On the second prong of qualified immunity, based on 9th Circuit law at the time of the incident, it was clearly established that firing projectiles at non-threatening individuals was objectively unreasonable.  A Supreme Court decision issued after the incident took place limited the 9th Circuit's holding on that point, by holding intentional application of force is not sufficient to establish a seizure unless the force was intended to restrain.  But just as the "clearly-established" analysis disregards legal developments after the incident that are unfavorable to the plaintiff, it disregards subsequent legal developments that are favorable to the defendant.  The focus is on whether the law at the time of the incident gave the officer prior notice that the officer's conduct is unlawful.

District Court May Order Retrial of Damages Separate from Liability Only Where Issues Not Intertwined; That Newly-Discovered Evidence Would Conclusively Disprove Opponent's Case Does Not Relieve Party of Reasonable Diligence Requirement

In Marroquin v. City of Los  Angeles, published August 27, 2024, the 9th Circuit Court of Appeals affirmed a trial court orders granting partial new trial and denial of a motion for relief from judgment based on newly-discovered evidence.  The plaintiff sued the defendant city and an officer for alleged use of excessive force when the officer allegedly fired a less-lethal round at the plaintiff during a gathering after a basketball championship win.  The officer and the plaintiff disputed whether the officer fired the round at the plaintiff.  At trial, the jury found in the plaintiff's favor on her claims against the officer for excessive force and negligence, and on her negligence claim against the city.  The defendants were found not liable for battery.  The verdict form asked the jury to assess damages against each defendant.  The jury awarded the plaintiff $1.00 in damages against the officer and $1.5 million in damages.  Both sides moved for new trial.  Both agreed the jury acted improperly in apportioning the damages between the city and the officer.  The defendants also filed a renewed motion for judgment as a matter of law.  The district court denied that motion, but agreed that the inconsistent awards were irreconcilable and that damages should be awarded for a single injury, not apportioned between defendants.  The court granted a new trial limited to damages.  Before the second trial, the defendants moved under FRCP 60(b)(2) for relief from judgment based on two "previously undiscovered" surveillance tapes from the sporting venue that, they contended, showed that the officer could not possibly have discharged the round that injured the plaintiff.  The officer declared he discovered the footage when working off-duty providing security for the venue, but did not discover the video until after the trial.  The district court denied the motion on the ground that the defendants failed to show reasonable diligence in discovering the video.

The 9th Circuit agreed with the district court.  Although a district court may grant a new trial or all or some of the issues, the decision to grant a partial new trial is cabined by the 7th Amendment, which prohibits ordering a new trial limited to damages when damages issues are so interwoven with liability issues that the former cannot be submitted to the jury independently of the latter without confusion or uncertainty.   In addition, when a plaintiff seeks punitive or exemplary damages, ordering a partial trial limited to damages is impermissible, because liability issues are necessarily interwoven with damages issues because the damages depend upon the degree of culpability of the defendant.  Further, the issue of liability for intentional infliction of emotional distress is intertwined with the damages issue because the trier of fact can find liability only if it first finds the plaintiff suffered severe emotional distress, and the defendant would be entitled to present evidence that they did not inflict sufficient damages.  Issues may also be intertwined where the jury's mistake in awarding damages tainted the liability finding.  Here, the plaintiff's claim for emotional distress did not depend on the events leading to her injury.  Instead, she sought pain and suffering from her physical injury.  Therefore, the liability issues concerning the officer's conduct were distinct and separable from the emotional distress damages.  Further, the defendants did not identify any evidence showing the jury's improper apportionment of damages tainted the liability finding.  The appellate court agreed with the district court that the jury's confusion on damages was caused by the improper instruction on the verdict form to apportion damages.  The court further held the district court did not abuse its discretion in denying the Rule 60 motion, due to failure to show reasonable diligence.  The court rejected the defendants' argument that there is a "conclusive evidence" exception to the reasonable diligence requirement when new evidence would conclusively disprove the other side's case.

Public Entity Employers Are Not Liable for PAGA Penalties

In Stone v. Alameda Health Systems, published August 15, 2024, the California Supreme Court reversed the decision of the lower court of appeal, which in turn reversed a dismissal after demurrer.  Defendant AHS is a public agency created by statute to provide public health care.  The plaintiffs, employees of AHS, sued AHS for alleged violation of meal and rest break provisions of the Labor Code, and for penalties for the violations under the Labor Code Private Attorneys General Act of 2004 (PAGA).  The trial court sustained AHS’s demurrer on the ground that the Labor Code provisions and PAGA do not apply to public entities.  The appellate court reversed, ruling that there was a legislative intent in the statute creating AHS to hold it liable for meal and rest break violations, and that it was subject to PAGA penalties for violating statutes that do not have specific penalties.

The Supreme Court ruled that the Legislature intended to exclude public entities from the meal and rest break provisions at issue.  Labor Code statutes are generally interpreted to exclude public employers unless otherwise provided.  The employers subject to the provisions are “persons” under Labor Code section 18, and the definition of “person” there does not include public entities.  This interpretation is consistent with applicable wage orders, legislative history, agency interpretations, and case law.  The Supreme Court also rejected the argument that the exemption applies only to public entities that have sovereign governmental powers that would be infringed by the provisions, and therefore does not apply to AHS.  The enabling statute for AHS establishes that AHS is a public agency, and thus a public entity.  A public agency need not be fully autonomous to be a public entity.  Further, AHS is a “municipal corporation” and is therefore exempt from requirements of certain wage payment statutes under Labor Code section 220(b).  Finally, the court determined that public entity employers are not liable for PAGA penalties.  The statutory scheme shows a legislative intent to apply penalties to private employees, rather than public employees.  Further, public policy does not favor imposing penalties on taxpayers.

Officers' Use of Deadly Force Reasonable when Suspect Attempted to Accelerate Boxed-in Vehicle

In Williams v. City of Sparks, published August 9, 2024, the 9th Circuit Court of Appeals reversed the district court's denial of summary judgment in a 42 U.S.C. section 1983 case.  When officers responded to a report of larceny at a gas station, the plaintiff got into his truck and led officers on a high-speed chase.  During the chase, the suspect drove over 70 mph, drove through a chain-link fence, briefly drove the wrong way on a freeway, drove through red lights, and drove at police vehicles, colliding with three.  The plaintiff's vehicle eventually came to a stop with a patrol vehicle wedged under the vehicle, pinning it against another police vehicle.  The plaintiff's truck's engine then made a loud, continuous noise, and a cloud of dirt and debris formed near the back.  An officer's dash cam showed the truck's wheels spinning.  Officers exited their cars and shouted orders at the truck, including to stop the truck, as they fired multiple rounds into the truck cab for 14 seconds.  Several bullets struck the plaintiff, who eventually left the cab. He sued the officers for alleged use of excessive force.  The district court denied summary judgment based on qualified immunity, finding a genuine issue of fact on whether the plaintiff was trying to accelerate the truck due to the cloud obscuring the back of the truck during the shooting.

The 9th Circuit ruled that the video showed that the tires were spinning as the engine sounded, establishing that the plaintiff was tryin to accelerate.  Because that video evidence contradicted the plaintiff's denial that he was accelerating, it had to be accepted as true for purposes of summary judgment.  Based on that evidence, and the plaintiff's conduct during the chase, the use of deadly force was objectively reasonable due to the threat the suspect posed and the threat that he would escape and continue to pose a threat of harm.  The length of the gunfire did not render the use unreasonable; once deadly force is reasonable to use, an officer need not stop firing until the threat is ended.  The court exercised its right to exercise jurisdiction over the plaintiff's Monell and Nevada state law claims, and ruled that the officers and city were entitled to summary judgment against all claims.

"Counsel Mandate" Bars Non-Attorney Parent from Representing Children's Claims Pro Se

In Grizzell v. San Elijo Elementary School, published August 7, 2024, the 9th Circuit affirmed the district court's dismissal without prejudice of a civil rights case against the defendant school and school district.  The plaintiff enrolled her children in the school under the McKinney-Vento Homeless Assistance Act.  She alleges that the children suffered racial discrimination and harassment, and were ultimately unlawfully unenrolled.  She asserted claims under the Equal Protection and Due Process clauses of the 14th Amendment, Title IV and Title VI of the Civil Rights Act of 1964, and several other federal and state educational laws.  When the plaintiff conceded that the lawsuit only concerns her children's claims, the district court dismissed the action without prejudice because the minors could proceed with their claims only through an attorney licensed to practice in the court.  The plaintiff appealed.

The 9th Circuit panel affirmed.  The "Counsel mandate" requires a non-attorney parent to be represented by counsel in bringing an action on behalf of her child.  The right to proceed pro se under 28 U.S.C. section 1654 does not create a true choice for minors who, under state law, cannot determine their own legal actions, and does not overcome the rule that a non-lawyer has no authority to appear as an attorney for others.  The panel acknowledged the important interests raised by the plaintiff's allegations, and that other circuits have allowed more flexibility in permitting a pro se parent to make a child's case the parent's own.  But the panel viewed itself bound by precedent.