Government Liability Update

Public Entity's Attorneys Did Not Violate Minors' Constitutional Privacy Rights by Reviewing the Plaintiffs' Juvenile Case Files without Obtaining a Court Order

In A.C. v. Cortez, published May 13, 2022, the 9th Circuit Court of Appeals affirmed dismissal of a 42 U.S.C. section 1983 suit against a county and its attorneys.  In an earlier lawsuit, the minor plaintiffs sued the county and county social workers for allegedly violating their 4th Amendment rights by interviewing them in the course of a child-abuse investigation, without a court order or parental consent.  Attorneys defending the county in that action reviewed the county's child-abuse investigation file without first obtaining a court order.  The plaintiffs then brought this action, alleging that the attorneys who accessed the file violated their constitutional right to privacy.  They relied on Gonzalez v. Spencer (9th Cir. 2003) 336 F.3d 832.  The district court granted the defendants' motion to dismiss.  In an unpublished decision, the 9th Circuit affirmed the dismissal as to the individual defendants based on qualified immunity.  The decision did not address the plaintiff' Monell claim against the county.  On rehearing, the 9th Circuit addressed the Monell issue.

The 9th Circuit concluded that the Gonzalez case did not identify a per se constitutional right in juvenile records that is always violated by third-party access.  Instead, the court applied the balancing test for determining when the federal constitutional right to informational privacy is properly infringed based on a showing of proper governmental interest.  Under this test, the court presumed that the files contained some highly sensitive information.  The potential for harm seemed low, since the information had not been used in any proceeding.  There were safeguards against misuse, because the plaintiffs allege only the county's attorneys reviewed the county's files; the attorneys have a duty to keep their clients' files confidential.  The most crucial factor is the need for access.  The need is high, because the county's attorneys have a duty to represent their client, and they concluded that adequate representation required reviewing the files.  The plaintiffs' prior lawsuit pertaining to how the county's employees conducted themselves with the plaintiffs gave rise to the attorneys' need to access the files.  The situation is analogous to litigation waiver in other areas of the law.  The need for access is sufficiently high that it outweighs the lesser possibility of harm.  The district court therefore properly dismissed the Monell claim.

On Defense Summary Judgment Motion, Where Bodycam Footage Blatantly Contradicts Plaintiff’s Testimony, Facts Viewed in Light Most Favorable to Footage; 8th Amendment Governs Use of Force against Escaped Inmates

In Hughes v. Rodriguez, published April 21, 2022, the 9th Circuit Court of Appeals affirmed in part and reversed in part a district court order granting summary judgment to the defendant police officers.  The plaintiff inmate escaped from a work crew.  He was on the lam for three weeks.  The defendant officers and a police dog discovered the residence where the plaintiff was hiding.  They used a loudspeaker to urge the plaintiff to exit the home.  When this proved unsuccessful, an entry team gathered in the home’s front entryway.  At this point, the parties’ versions of events diverged.  The plaintiff asserts that he responded to the loudspeaker by yelling he was coming out, and then walked out from his bedroom with his hands held up.  After the officer holding the dog saw his hands were up, per the plaintiff, the officer released the dog, who bit him; the officers piled on him; the officers handcuffed him; and after he was handcuffed and subdued, the officers punched him and the dog continued biting him for two minutes or more.  Bodycam footage, however, shows the spot where the plaintiff states he stood with his hands up, but does not show the plaintiff in the officers’ view until the dog attacks.  The footage shows less than a minute between the dog being released and the plaintiff subdued.  The footage does not clearly show whether the plaintiff was punched after being handcuffed.  The defendants contend that the silence after the sound of handcuffing refutes the plaintiff’s account that he was beaten after being handcuffed.  The plaintiff sued the officers for excessive force under 42 U.S.C. section 1983, negligence, Bane Act violation, and battery.  The district court granted the officers summary judgment as to all claims.

 

The 9th Circuit first focused on whether to assume plaintiff’s version of events true.  The court, following other circuits, determined that the rule in Scott v. Harris (2007) 550 U.S. 372 should be applied to bodycam footage and audio:  For purposes of ruling on summary judgment, to the extent the footage and audio blatantly contradict the plaintiff’s testimonial evidence, the facts are properly viewed in the light most favorable to the footage and audio.  In this case, the footage and audio do not blatantly contradict all of the plaintiff’s testimony.  The district court erred when it viewed all of the plaintiff’s testimony as discredited because part of it was contradicted.  As to events on which there is not blatant contradiction, the facts must be viewed in the light most favorable to the plaintiff.  That includes the plaintiff’s allegation he was beaten after being handcuffed.  The court then determined that the 8th Amendment excessive force standard applies to all uses of force against inmates, including those used on escaped inmates.  Under the 8th Amendment, the relevant inquiry is whether the force was applied in a good-faith effort to maintain or restore discipline, or maliciously and sadistically to cause harm.  Because the injuries inflicted were relatively minor; the use of biting dogs on hiding suspects passes 4th Amendment muster, and thus does not breach the higher 8th Amendment standard; and the officers’ acts in repeatedly urging the plaintiff to comply show a lack of intent to maliciously and sadistically cause harm, the initial use of the dog and handcuffing were proportional to the threat the suspect posed.  Whether the alleged post-handcuff beating and use of dog were proportional was a question for the trier of fact.  Because the bodycam footage shows any such use of force took place during the rapidly unfolding chaos of the struggle to apprehend the plaintiff, the officers other than the officer who unleashed the dog cannot be held liable for failure to intercede or integral participation.  The officer who unleashed the dog was not entitled to qualified immunity, because it is clearly established law that beating a handcuffed suspect as the officer was alleged to have done violates the 8th Amendment.  No particularized case law is necessary for a deputy to know that excessive force has been used when a deputy sics a canine on a handcuffed arrestee who has fully surrendered and is completely under control.  The canine officer’s liability under the Bane Act is an issue of fact as well.  The plaintiff waived appellate review of summary judgment on his state law claims of negligence and battery.

 

One judge, concurring in part and dissenting in part, opined that the bodycam and audio footage was conclusively inconsistent with the plaintiff’s account of being bitten and beaten after being handcuffed.

Attorney Fees Cannot be Recovered under an Indemnity Provision That Is Void because the Agency Had No Authority to Enter Into It

In San Luis Obispo Local Agency Formation Commission v. Central Coast Development Co., published May 5, 2022, The Second District Court of Appeal, Division 6 reversed an award of attorney fees against the plaintiff agency.  A developer and a city applied to the plaintiff agency for a permit to annex a parcel of property.  The application included an indemnity agreement obligating the applicant to defend, indemnify, hold harmless and release the agency from any proceeding brought to attack the agency's action on the proposal.  The agency denied the annexation application.  The city and developer sued the agency.  The agency won.  It billed the city and developer for its attorney fees and costs.  They refused to pay.  The city sued the developer to recover fees and costs extended in the suit against the agency.  The agency cross-complained against the city and developer for fees and costs.  The cross-complaint was based on the indemnity provision.  The trial court granted the city and developer judgment on the pleadings against the agency.  The agency appealed.  While the appeal was pending, the city and developer moved for attorney fees based on Civil Code section 1717.  The trial court granted the motion and awarded fees and costs to the city and developer.  The appellate court then affirmed the trial court's decision regarding the  indemnity agreement.  It ruled that the indemnity agreement was not supported by consideration and that the agency had no statutory authority to impose an indemnity agreement as a condition of the agency's statutory duty to consider the application.  The agency then appealed the order granting attorney fees. It asserted that the indemnity agreement is void as an an illegal and ultra vires contract.

The appellate court agreed.  When a public agency is not authorized to make an agreement, the agreement is void and the public agency may neither enforce nor be liable on the contract.  It follows that the agency is not liable for attorney fees based on section 1717.  Section 1717 is based on contract.  The result should be no different than with contracts that are void for illegality.

School Personnel Do Not Owe Students Duty to Review Alarm Data and Video Recordings to Constantly Monitor Everyone on Campus

In Doe v. Anderson Union High School Dist., published May 4, 2022, the Third District Court of Appeal affirmed summary judgment for the defendant school district, principal, and superintendent.  A teacher at a high school in the district had a sexual relationship with the plaintiff student, then 17.  The relationship included sexual activity in his classroom.  The school district had no facts, reports, or rumors that the teacher had engaged in any improper relationship.  There were video security cameras aimed at the doors of the classroom.  The video footage was saved for 14 days before automatic erasure.  Per district policy, footage was reviewed only if the district learned of an incident that may have been caught on video.  The district maintained an alarm system that covered the main building and the classroom.  Each employee had a code to deactivate the alarm.  The district had not requested data from the alarm company on when alarms were deactivated or by whom.  The student sued the defendants for negligent hiring and negligent supervision.  The defendants moved for summary judgment on the ground that there was no evidence they knew or should have known that the teacher posed a risk of harm to students.  The plaintiff conceded lack of evidence of negligent hiring, and so focused on negligent supervision.  In opposition to summary judgment, the plaintiff submitted an expert declaration from a retired principal and school administrator.  He opined that the principal had a duty to monitor teachers to determine if they were spending too much time on campus late at night, including interviewing teachers and reviewing video footage.  The trial court ruled that the risk to the plaintiff was not foreseeable.

The appellate court ruled that the district's administrators' duty of supervision to protect students was limited to the risks of harm that were reasonably foreseeable--those known to the administrators or that reasonably should have been known to them.  School districts are not the insurers of their students' physical safety.  Sexual misconduct by school personnel is not inherently foreseeable.  The administrators did not know that the teacher would have se with the student, and had no information that would support a conclusion that they should have known.  They therefore did not have a duty to review alarm data and video recordings to constantly monitor all teachers, students, and campus visitors.  Nor did they have such a duty specifically as to the plaintiff and the teacher.  To impose such a duty on this record would be unreasonable.

"Watchful Waiting" Treatment of Prisoner's Medical Problem That Was Worsening Violates Clearly Established Law

In Stewart v. Aranas, published May 4, 2022, the 9th circuit affirmed the district court's denial of qualified immunity to prison officials in a prisoner's lawsuit under 42 U.S.C. section 1983.  According to the summary of facts in the majority opinion, the prisoner complained to prison staff of severe pain when urinating and difficulties in urination.  Staff examined him, gave him generic medication, and sent him on his way.  Over the next three years, the prisoner's urethra, testicles, and abdominal areas grew inflamed.  The prisoner continued to complain to prison staff.  They did not change their treatment.  The prisoner was transferred to another facility in an eight-hour ride.  The staff at the new facility initiated emergency medical care.  A catheterization drained fourteen pounds of fluid from the prisoner's bladder and unrinary system.  He underwent prostate surgery.  He claims long-term kidney disease, erectile dysfunction, urine build up, and pain.  He sued the prison officials alleging deliberate indifference to serious medical needs.  The officials appealed denial of qualified immunity on the second prong of the immunity--the law was clearly established.

The 9th Circuit agreed that the district court properly denied qualified immunity on the second prong.  The prison officials claimed that no clearly established law barred their "wait and see" treatment plan for the prisoner's enlarged prostate.  But case law establishes that denying, delaying, or intentionally interfering with medical treatment can violated the constitution.  At some point, "wait and see" becomes deny and delay.  The prisoner's condition sharply deteriorated, yet prison officials never deviated from their "wait and see" treatment plan.  A delay in treatment can violated the constitution if it results in injury.  Further, it is clearly established that prison officials violate the constitution when they persist in a treatment known to be ineffective.

A concurring judge agreed that a reasonable prison official with awareness of a factual predicate like the one set forth in the majority opinion would have violated clearly established rights by a treatment plan of "watchful waiting."  But the judge opined the records showed a different factual predicate than the one set forth in the opinion.  Since the defendants appealed only denial of qualified immunity on the second prong, the first prong--whether the plaintiff's constitutional rights were actually violated--was not an issue on appeal.

 

Because City Allowed Public to Fly Flags at City Hall, Flag Flying Was Not Government Speech, and City Violated First Amendment by Refusing to Fly Religious Flag

In Shurtleff v. City of Boston, published May 2, 2022, a unanimous U.S. Supreme Court reversed a district court and appellate court decision that the defendant city did not violate the First Amendment by declining to fly a religious flag.  The Boston City Hall has three flagpoles.  One flies the American flag, the second flies the Commonwealth of Massachusetts flag, and the third usually flies the city flag.  For years, the city has allowed groups to hold ceremonies on the city hall plaza and fly flags of the groups' choice, without city involvement in choosing or approving flags.  The plaintiff asked to hold an event on the plaza and fly what he described as the "Christian flag"--a red cross on a blue field against a white background.  The city declined, out of concern that flying a flag that favored a particular religion at city hall would violated the First Amendment's Establishment clause.  The plaintiff sued the city, alleging violation of the First Amendment's Speech Clause.  The district court granted the city judgment, and the appellate court affirmed.

The Supreme Court held that the city had violated the plaintiff's free-speech rights.  The Free Speech Clause does not prevent the government from declining to express a view.  The question was whether flying a flag on the third flagpole was government speech or private speech.  The boundary between government speech and private expression can blur when the government invites  people to participate in a program.  In those situations, the court conducts a holistic inquiry to determine whether the government intends to speak for itself, or to regulate private expression.  The court looks to the history of the expression at issue; how the public is likely to perceive who is communicating; and the extent to which the government has actively shaped or controlled the expression.  Applying that analysis here, the court held that a government flying a flag at the seat of government is traditionally seen as government speech.  The public's perception of the flags under the circumstances did not resolve the matter.  The most salient facts were that Boston neither actively controlled the flag raisings nor shaped the messages the flags sent.  The city had never refused to fly a group's flag as part of a ceremony until it refused the plaintiff's.  This led the Court to conclude the third-party flag raisings were private, not public, speech.  The city's refusal to let the plaintiff fly the flag based on a religious viewpoint violated the plaintiff's Free Speech rights by engaging in impermissible viewpoint discrimination.  Six justices joined the majority opinion.  One of those justices, and two others, filed concurring opinions.

County Immune from Liability to Hospital under Knox-Keene Act

In County of Santa Clara v. Superior Court (Doctors Medical Center of Modesto), published April 26, 2022, the Sixth District Court of Appeal issued a writ directing a trial court to sustain the petitioner county's demurrer to the real party hospitals' complaint.  The county operates a health care plan licensed under the Knox-Keene Health Care Service Plan Act, Health & Safety Code section 1340 et seq.  The hospitals provided emergency services to members of the county's healthcare plan.  The hospitals submitted claims to the county for over $144,000, the amount the hospital alleges is the reasonable value of the services provided.  The county reimbursed the hospital approximately $28,500.  The hospitals sued the county for reimbursement.  It asserted tort and implied-in-law causes of action.  The trial court sustained the demurrer without leave to amend as to the tort causes of action, and granted leave to amend the breach of implied contract cause of action.  In the operative complaint, the hospital asserted a single cause of action alleging implied-in-fact and implied-in-law contracts with the county.  The trial court overruled the demurrer to the complaint, ruling that the hospitals stated facts sufficient to constitute a cause of action for quantum meruit or implied-in-fact contract.

The appellate court ruled that the trial court erred.  The implied-in-law contract/quantum meruit claim is barred by Government Code section 815, which immunizes public entities from liability on common law theories.  Case law establishes that section 815 bars quantum meruit actions against public entities.  The appellate court rejected the hospitals' argument that the Knox-Keene Act imposed a mandatory duty upon the county that gave rise to a cause of action under Government Code section 815.6.  Section 815.6's application requires that the enactment be obligatory, requiring that a particular action be taken or not taken; and that if the public entity or officer is under an obligation to function, that the function itself not involve the exercise of discretion.  While Health & Safety Code section 1371.4(b) imposes a duty on the county to reimburse the hospitals, the statute calls for reimbursement of the "reasonable and customary value" of the services performed.  The statute therefore gives the county discretion in the amount of reimbursement to pay.  The section therefore does not create a purely mandatory duty, and does not authorize the hospitals' implied-in-law contract cause of action.  No other statute authorizes the hospitals' action for damages.  The complaint also alleges an implied-in-fact contract.  Because Government Code section 815 does not affect liability based on contract, it does not preclude an action for breach of an implied-in-fact contract.  But the single cause of action is ultimately based on alleged breach of a noncontractual duty--the county's alleged obligation under county ordinances and the Knox-Keene Act to pay for the care and treatment the hospitals rendered.  Because the suit is based on alleged breach of statutory duty rather than alleged breach of promise, its nature is tortious and the county is immune from suit under section 815.  Because the hospitals failed to show how they could amend the complaint to save the action, they were not entitled to leave to amend.

 

 

Jail Medical Personnel Not Entitled to Qualified Immunity for Allegedly Providing Inadequate Care to Inmate Displaying Serious Cardiac Symptoms

In Russell v. Lumitap, published April 13, 2022, the 9th Circuit Court of Appeals affirmed in part and reversed in part an order denying summary judgment to medical providers at a county jail.  The decedent prisoner came to prison medical providers complaining of vomiting, chest pain, and anxiety.  The first nurse who saw him gave him Pepto-Bismol and referred him for a mental health screening.  The second nurse, who saw him at the mental health intake center, gave him a dose of nitroglycerin.  The decedent’s pain increased.  The nurse called the on-call doctor, who ordered the decedent be given Motrin and be screened for mental illness.  The doctor never examined the decedent in person.  The decedent received a mental health screening and was returned to jail.  The inmate then returned to the jail medical clinic complaining of more severe pain.  She knew that per policy, if nitroglycerin did not relieve the patient’s symptoms, the patient should be hospitalized.  She called the nurse at the mental health intake center, who told her of the doctor’s orders.  The nurse administered Motrin and the decedent remained for observation.  The patient consulted with another nurse, who instructed him on relaxation and gave him a heat balm.  Eventually, the nurse observed the decedent in extreme distress.  She called paramedics.  The decedent was transferred to a hospital where he died.  He had suffered an aortic dissection.  The decedent’s parents sued the various medical personnel under 42 U.S.C. section 1983, alleging deliberate indifference.  The defendants moved for summary judgment based on qualified immunity.  The district court denied the motion, finding genuine issues of material fact.

The 9th Circuit affirmed as to all but one nurse.  At the time of the decedent’s death, a deliberate-indifference claim under the 14th Amendment were decided on the same standard as 8th Amendment claims, requiring a showing of deliberate indifference.  Later, the Supreme Court held that a plaintiff alleging a 14th Amendment violation need not show subjective deliberate indifference; only that the force used was objectively unreasonable.  The 9th Circuit then applied this rule to 14th Amendment claims, requiring that the plaintiff show that the defendant made an intentional decision putting the plaintiff at substantial risk of serious harm, and then did not take reasonableavailable measures to abate that risk, even though a reasonable official in the circumstances would have appreciated the high degree of risk involved—making the consequences of the defendant’s conduct obvious.  The court applies this objective standard to determine whether the defendants violated clearly-established law, even where the incident occurred before the change in the law.  The standard can be met where the care rendered is so inadequate to the circumstances known to the medical staff as to amount to deliberate indifference.  At the time of decedent’s death, the 9th Circuit had found deliberate indifference where nurses and a doctor had prescribed palliative treatment in response to serious symptoms, or providing life-saving measures to an inmate in obvious need.  Further, other circuits had applied the standard to obvious symptoms of heart attack, such as those the decedent displayed here.  Under this standard, a jury could find that all of the medical personnel—except for the nurse who called the doctor, and followed his orders (entitling her to qualified immunity)—violated clearly established law by having access to information that the decedent had a substantial risk of serious injury, and providing constitutionally inadequate treatment.

Farm States 1st Amendment Retaliation Claim against School District for Discontinuing Field Trips Based on Social Media Posts

In Riley’s American Heritage Farms v. Elsasser, published March 17, 2022, the 9th Circuit Court of Appeals reversed in part and affirmed in part summary judgment granted to public school defendants in a 42 U.S.C. section 1983 case seeking damages and injunctive relief.  Over a 16-year  period, schools within the defendant school district booked field trips with the plaintiff farm.  One of the principal shareholders made controversial statements on his personal social media account.  In response, some parents complained about their students traveling on field trips to the farm, and a local newspaper published an article about the incident.  The school district severed its relationship with the farm.  The farm sued the district, individual board members, and administrators, alleging 1st Amendment retaliation.  The district court granted the defendants summary judgment.

 

The 9th Circuit held that the farm had set forth a prima facie claim for first amendment retaliation.  Because the farm stood in the same position as an independent contractor to the government, the Pickering test for First Amendment retaliation applied.  There was no issue that the farm had engaged in protected expressive activity; that the defendants took an adverse action against the farm; and that the defendants were motivated to do so by the farm’s expressive conduct.  The burden shifted to the school defendants to show that their interests in preventing disruption to their operations and curricular design were so substantial that they outweighed the plaintiff’s free speech interests.  Viewing the evidence in the light most favorable to the plaintiff, because the speech was outside the scope of school communications, did not mention the school, and resulted in only a small number of complaints and coverage, the defendants did not carry their burden sufficiently to obtain summary judgment.  On the second prong of qualified immunity, the individual defendants were entitled to summary judgment, because the law at the time did not place the question of whether they violated the plaintiff’s 1st Amendment rights beyond debate.  The defendants were not entitled to summary judgment against the injunctive relief claim, because the superintendent’s testimony that there was still a policy against booking field trips to the farm was sufficient to create a genuine issue of fact on whether the plaintiff continued to suffer from an ongoing constitutional violation.

 

Favorable Termination Element of Section 1983 Malicious Prosecution Claim Requires Only That Prosecution Ended without Conviction

In Thompson v. Clark, published April 4, 2022, a divided U.S. Supreme Court reversed a judgment in favor of police officer defendants on a 4th amendment malicious prosecution claim.  The plaintiff was accused by a mentally ill relative of sexually abusing his one-week-old daughter.  Four police officers arrived at the plaintiff's apartment.  The plaintiff told the officers they could not enter without a warrant.  The officers entered, and, after a scuffle, handcuffed the plaintiff.  No sign of abuse was found.  The officers arrested the plaintiff for resisting their entry into the apartment.  An officer filed a criminal complaint against him for resisting arrest and obstructing governmental administration.  A judge released him.  Before trial, the court granted the prosecution's motion to dismiss the case.  No explanation was given for the motion to dismiss or the dismissal.  The plaintiff sued the officers under 42 U.S.C. section 1983 for malicious prosecution.  The district court entered judgment for the officers, on the ground that the favorable termination element of malicious prosecution could not be satisfied because the criminal case had not ended in a way that affirmatively indicated the plaintiff's innocence.  The Second Circuit Court of Appeals affirmed.  Because the circuits were split on the favorable termination element, the Supreme Court granted review.

The majority held that a 4th Amendment claim under section 1983 for malicious prosecution does not require the plaintiff to show that the criminal prosecution ended with some affirmative indication of innocence.  The plaintiff need only show that the criminal prosecution ended without conviction.  The plaintiff did so here.  The court reached that conclusion by examining the nature of the malicious prosecution tort in 1871, when section 1983 was passed.  Case law interpreting that tort required for favorable termination only that the prosecution end without conviction.  The interpretation is also consistent with the values and purposes of the 4th Amendment.  The question of whether a criminal defendant was wrongly charged does not logically depend on whether the
prosecutor or court explained why the prosecution was dismissed. The individual’s ability to seek redress for a wrongful prosecution cannot reasonably turn on the fortuity of whether the prosecutor or court happened to explain why the charges were dismissed.  Requiring an affirmative indication of innocence would paradoxically foreclose a section 1983 claim when the government’s case was weaker and dismissed without explanation before trial, but allow a claim when the government’s evidence was substantial
enough to proceed to trial.  Further, officers will be protected from unwarranted civil suits by the requirement the plaintiff show the absence of probable cause, and by qualified immunity.

Three dissenting justices opined that there should be no 4th Amendment malicious prosecution claim.