Government Liability Update

Plaintiff Who Pleads No Contest to PC 148(a)(1) Is Barred under Heck v. Humphrey from Suing for Excessive Force

In Sanders v. City of Pittsburg, filed September 23, 2021, the 9th Circuit Court of Appeals affirmed dismissal of a 42 U.S.C. section 1983 claim for use of excessive force.  Police spotted the plaintiff in a stolen car, and chased him.  Eventually a police dog bit him.  The plaintiff pleaded no contest to multiple charges arising out of the incident, including a violation of Penal Code section 148(a)(1) for resisting arrest.  While his criminal case was pending, he sued the officer who used the police dog for use of excessive force.  The district court granted the defense's motion to dismiss based on the argument that Heck v. Humphrey (1994) 512 U.S. 477 barred the action.

The 9th circuit agreed.  Under Heck a section 1983 claim must be dismissed if a judgment for the plaintiff would necessarily imply the invalidity of the plaintiff's conviction or sentence.  Section 148(a)(1) bars resisting, delaying, or obstructing an officer during the lawful exercise of his duties.  Use of excessive force is not within the performance of the officer's duty.  A defendant cannot be convicted under section 148(a)(1) if the officer used excessive force at the time of the acts resulting in the conviction. Therefore, Heck bars the plaintiff's lawsuit.

Failure to Adopt Recommendations in Department of Education "Dear Colleague" Letters Is Not Actionable Failure to Accommodate

In Csutoras v. Paradise High School, published September 7, 2021, the 9th Circuit Court of Appeals affirmed summary judgment for the defendant school and district in a lawsuit seeking money damages under Title II of the Americans with Disabilities Act and the Rehabilitation Act of 1973.  The plaintiff high school student requested and was granted accommodations under a section 504 plan concerning his schoolwork.  A male classmate assaulted the plaintiff at a football game while he was talking to a girl.  The assailant's motivation was jealousy over the girl.  It was not motivated in any way by the plaintiff's disability.  The school had no prior knowledge of harassment or bullying involving the plaintiff.  The plaintiff alleged that the school violated the ADA and Rehabilitation Act by failing to satisfy various Dear Colleague letters issued by the Department of Education.  The district court concluded that the Dear Colleague letters were not binding.

The 9th Circuit agreed.  While the letters set out a four-factor test for determining whether the Department may seek enforcement against a claimed violation of the ADA and Rehabilitation Act where a student is bullied based on a disability, the bullying is sufficiently serious to create a hostile environment, school officials knew or should have known of the bullying, and the school does not respond appropriately, the letters themselves limit the test to administrative enforcement actions and suits for injunctive relief.  Precedent creates a much higher bar for plaintiffs seeking damages under the ADA and Rehabilitation Act:  They must prove that the defendant intended to discriminate on the basis of the disability, or was deliberately indifferent to the disability.  The letters also disclaim any binding authority, and explicitly state that they do not apply to private suits for money damages.

A Preempted Criminal Ordinance Cannot Furnish Probable Cause to Arrest

In Carcamo v. Los Angeles County Sheriff's Department, published September 3, 2021, the Second District Court of Appeal, Division 3 reversed a jury verdict in favor of the defendant agency and its deputies.  The defendant deputy arrested the plaintiffs because the deputies believed they appeared intoxicated in a public place.  Penal Code section 647(f) provides that if a person is found in a public place under the influence of intoxicating liquor, in a condition that they are unable to care for their own or others' safety, or are interfering with or obstructing the free use of a public way, is guilty of disorderly misconduct.  There was no evidence the plaintiffs were unable to care for themselves or others, or were obstructing the free use of a public way.  Instead, the deputy arrested them for violating a City of Carson ordinance against public intoxication, which did not impose those requirements.  The plaintiffs sued the deputy and agency for false arrest.  The jury was instructed that if the arresting deputy observed each plaintiff violating the Carson Municipal Code section, he had reasonable cause to believe each had committed a crime in his presence.  

The appellate court held that the jury instruction was erroneous.  The California Supreme Court has long held that California has adopted a general scheme for regulating the crime of being intoxicated in a public place.  That scheme is set forth in Penal Code section 647(f).  The Supreme Court and subsequent lower court cases also held that local criminal ordinances prohibiting public intoxication are void.  Reasonable or probable cause justifying an arrest requires that the officer have objective cause to believe that the plaintiff committed a crime in his presence.  Violation of a void ordinance, even one that remains on the books, cannot provide that reasonable/probable cause.

Natural Condition Immunity Applies to Tree That Is in Municipal Park, That Has Been Pruned, and That Drops a Branch onto a Path

In City of Chico v. Superior Court (McKenzie), published August 30, 2021, the Third District Court of Appeal issued a writ directing a trial court to grant the petitioner city summary judgment.  While jogging on a bike path in a municipal park, the plaintiff was injured by a falling tree branch.  She sued the city for maintaining a dangerous condition of public property.  The park is a naturally occurring riparian woodland.  The tree is a 160-year-old Valley Oak Tree.  It predates the park.  Valley oaks are indigenous to the park location.  Valley Oaks are subject to sudden branch drop, which cannot be anticipated; it is often associated with long, horizontal branches and warm temperatures.  The city moved for summary judgment based on Government Code section 831.2's immunity from liability for injuries caused by a natural condition of unimproved public property.  The plaintiffs submitted expert evidence that the tree had been pruned, and that pruning can push growth into the remaining branches, increasing their diameter.  They did not submit evidence that previous pruning actually caused the branch to break.  The trial court denied summary judgment, finding triable issues of fact on whether the injuries were caused by a natural condition of unimproved public property.

The appellate court ruled that the city was entitled to section 831.2 immunity as a matter of law.  The natural growth of indigenous trees in natural habitats is a natural condition.  Pruning did not change that.  Natural condition immunity is not lost because of changes that duplicate models common to nature combine with natural forces to shape the condition.  Despite the pruning, the continued growth of the tree was a natural condition.  The tree grew on unimproved property; that the branch fell on (and the injury occurred on) an improved path did not  change that the condition was on unimproved public property.  There was no evidence that the pruning caused the branch to fall; at most there was evidence it affected the diameter of the branches, which did not cause branches to drop.

Discovery Accrual Standard Applies to Statute of Limitations for Liability Based on Statute

In Holman v. County of Butte, ordered published August 25, 2021, the Third Appellate District reversed the dismissal of a case on demurrer.  The plaintiff alleged that the defendant county, its Health and Human Services Department, and its Sheriff's Office negligently failed to perform mandatory duties related to investigating and reporting allegations of child abuse the plaintiff's parents perpetrated on him in the mid-2000s.  The plaintiff alleged repressed childhood memories returned to him in 2017.  He filed the lawsuit in 2020.  He sued under Government Code section 815.6.  The county defendants demurred, argued that the statute of limitations prescribed in Code of Civil Procedure section 338, subdivision (a) governing liability based on statute applied.  The statute of limitations is three years.  The defendants contended that because other subdivisions of section 338 expressly provide for accrual based on discovery, the discovery standard of accrual does not apply to subdivision (a).  The trial court agreed.

The appellate court disagreed.  The common law discovery rule is available when section 338, subdivision (a) is the applicable statute of limitations.  The courts have applied the discovery rule to other subdivisions of section 338 that do not expressly provide for application of the discovery rule.  Absent the Legislature's clear intent, the court presumes the Legislature intended to make the common law discovery rule applicable.  The Legislature did not provide that the rule was inapplicable to subdivision (a), nor did it adopt a statute of repose cutting off all liability after a given amount of time no matter the circumstances.  The other subdivisions merely provide different triggers of the limitation period than the judicial discovery rule.  Further, at least one previous case had applied the discovery rule to subdivision (a).  That the plaintiff failed to plead diligence after discovering his cause of action did not affect the timeliness of his complaint, because the plaintiff filed suit within three years of accrual.

Because the Law Did Not Clearly Establish Testimony in Violation of Rules by Employee Who Testified as Part of Duties Was Protected Speech, Supervisors Entitled to Qualified Immunity

In Ohlson v. Brady, published August 23, 2021, the 9th Circuit affirmed summary judgment in favor of the plaintiff’s supervisors in a 42 U.S.C. section 1983 lawsuit alleging First Amendment retaliation.  The plaintiff was a forensic scientist employed by the state in an agency that analyzes blood samples for alcohol content.  The plaintiff believed that the agency should make the results of all of the samples within a batch of samples available to criminal defendants, and suggested making the batch data public.  His employers declined.  Part of the plaintiff’s job duties was testifying in court.  When examined by a defense attorney in court, the plaintiff testified about his disagreement with his superiors on this point.  He was placed on administrative leave pending an investigation.  The investigation resulted in a suspension, followed by the plaintiff’s retirement.  The plaintiff filed suit alleging First Amendment retaliation for testifying in court and in advocating in the agency for a change in procedure.  The district court ruled that the plaintiff had established a violation of his First Amendment rights but had failed to show that they were clearly established.  The court granted the defendants summary judgment based on qualified immunity.

The 9th Circuit went over the complicated case law governing First Amendment retaliation claims by  public employees.  It disagreed that the plaintiff necessarily spoke as a private citizen (lending First Amendment protection to his speech) simply because he was speaking in defiance of orders.  Although the Ninth Circuit had previously ruled that speaking outside the chain of command was an important factor in concluding an employee spoke as a private citizen, interpreting speech in defiance of orders as always being a strong indication of protected speech could lead to protecting employees defying legitimate orders aimed at deterring employee misconduct, incentivizing insubordination and making government administration more difficult.  Instead, the balancing test requires weighing the interests of both sides.  But previous case law had not clearly established whether an employee who testified as part of his job spoke as a public employee or private citizen when he gave testimony in violation of orders.  Therefore, the supervisor defendants were entitled to qualified immunity to the retaliation claim arising out of court testimony.  Regarding the internal advocacy retaliation claim, no authority established that constitutional right so clearly that any reasonable official in the defendant’s shoes would have understood they were violating that right.  The plaintiff was therefore not able to show that the supervisors violated clearly established law with respect to this claim.

Family of Decedent May Recover "Loss of Life" Damages under 42 U.S.C. § 1983, Even Though Barred by California Law

In Valenzuela v. City of Anaheim, published August 3, 2021, a divided panel of the 9th Circuit Court of Appeals affirmed a judgment based on jury verdict for the plaintiffs in a 42 U.S.C. section 1983 action.  The defendant officers tased and used multiple choke holds on a "suspicious person" at a laundromat who had a screwdriver in his bag and who did not immediately comply with a command to put his hands behind his back.  The decedent fell into a coma, and died eight days later.  The jury awarded the decedent's family a total of $13.2 million in damages.  The award included $3.6 million for the decedent's pre-death pain and suffering; $3.6 million for the decedent's children's loss of decedent's companionship and society; and $3.6 million for decedent's "loss of life."  The defendants appealed the award of damages for decedent's loss of life, on the ground that California state law on wrongful death damages (Code of Civil Procedure section 377.34) barred damages for loss of life.  The district court rejected the defendants' argument.

The majority of the 9th Circuit panel agreed.  Because section 1983 is silent as to loss of life damages, the California law barring such damages controls, unless it is inconsistent with the policies of section 1983.  In Chaudhry v. City of Los Angeles, 751 F.3d 1096 (9th Cir. 2014), the 9th Circuit concluded that California law's ban on damages for pre-death pain and suffering was inconsistent with he policies of section 1983.  Section 1983 was intended to provide a remedy for killings unconstitutionally caused or acquiesced in by state governments, the  Chaudhry court concluded; and in cases where the victim dies quickly, there often will be no damages remedy at all under section 377.34.  The Chaudhry court therefore concluded that section 377.34 does not apply to section 1983 claims where the decedent's death was caused by violation of federal law.  The majority saw no meaningful way to distinguish Chaudhry from this case.  

A dissenting judge concluded that the award of damages for the decedent's pre-death pain and suffering was sufficient to satisfy section 1983's remedial purpose without also awarding damages for loss of life.  He further urged the court to revisit Chaudhry en banc.

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.