Government Liability Update

Police Chief Violates Clearly-Established Law by Allegedly Discriminating against Female Officer and Retaliating against Her for Filing Suit

In Ballou v. McElvain, published September 28, 2021, the 9th Circuit Court of Appeals affirmed a district court's denial of a police chief's summary judgment based on qualified immunity.  The plaintiff took an exam to determine elegibility for promotion to sergeant.  Soon after the exam, the plaintiff was investigated by internal affairs for failing to write a report on an incident.  The plaintiff received a letter of reprimand, and the police chief announced that based on the investigation and the plaintiff's failure to follow protocol, he did not intend to promote her.  A group of female officers (not including plaintiff) met with the police chief and pointed out a male officer accused of similar conduct had received an oral reprimand and had not been investigated by internal affairs.  The day after the meeting, the chief announced he would promote the officer ranked directly below the plaintiff on the sergeant's list.  The plaintiff emailed the chief and city manager, complaining that the chief had promoted male officers who had sustained IA investigations against them for more serious offenses.  She stated she had hired a lawyer, but wanted to work the matter out.  After the e-mail, the plaintiff was the subject of eight IA investigations.  After the plaintiff presented two state law tort claims and filed her lawsuit, the chief promoted the male officer ranked below the plaintiff on the list.  The chief asserted he did not know of the lawsuit when he promoted the officer. The plaintiff was eventually promoted to sergeant, months later. The plaintiff alleged denial of equal protection and retaliation for exercise of her First Amendment rights.  The district court denied the chief's motion for summary judgment on these claims based on qualified immunity.

The 9th Circuit ruled that the plaintiff had stated a prima facie case of disparate treatment under Equal Protection and had raised a genuine issue of fact on whether the chief's legitimate reason for his actions was prextextual.  The chief asserted that proof of discriminatory animus will not establish an Equal Protection violation absent proof that others similarly situated were treated more favorably.  The 9th Circuit ruled that this was "profoundly incorrect."  Although comparator evidence may substitute for direct evidence of discriminatory animus, it is not necessary if there is direct proof of discriminatory animus.  Regarding qualified immunity, if the factual issues were resolved in the plaintiff's favor, the chief's alleged conduct of discriminatorily conducting an investigation and using the investigation to deny promotion fell within previously decided 9th Circuit cases, such that any reasonable officer would recognize that conduct as unconstitutional.  Similarly, existing precedent established that retaliating against an employee for the lawsuit, the state tort claims, and the internal e-mail violated the First Amendment, particularly in light of the multiple officers who met with the chief, showing the public interest in the situation.

 

Because State Law Did Not Clearly Establish Contractor Had Property Interest in Municipal Contract, City Attorney Entitled to Qualified Immunity to Due Process Claim for Recommending Ending Contract

In DePaul Industries v. Miller, published September 28, 2021, the 9th Circuit Court of Appeals reversed denial of qualified immunity to a defendant city attorney in a suit under 42 U.S.C. section 1982.  The plaintiff contracted with the city to provide unarmed security at city buildings.  The plaintiff was a qualified nonprofit agency for persons with disabilities, or QRF, under an Oregon law that requires cities to contract with QRFs in certain circumstances.  An employee of the plaintiff sued the city for alleged retaliation, and the plaintiff declined to defend and indemnify the city under an indemnification clause in the contracts.  When the contracst ended, the city elected to modify its security services by requiring that the security service employees be armed.  The plaintiff was the only QRF in the county providing unarmed security services.  The city decided not to renew the plaintiff's contracts, and awarded them to another security service.  The plaintiff sued the city and various city officials, including the city attorney, in their individual and official capacities.  One claim alleged the city attorney violated the plaintiff's substantive and procedural due process rights.  The city attorney moved for summary judgment based on qualified immunity.  The district court decided that the plaintiff had a clearly established property interest in its contracts with the city, and that a reasonable jury could conclude that the city used a pretext to cancel the contracts.

The 9th Circuit held that the district court erred, because the plaintiff's property interest in the contracts was not clearly established.  The Oregon QRF statute is not clear about whether it creates a protected property interest in annually renewable city contracts.  No Oregon court had considered the question.  Two cases cited by the district court were district court opinions that did not address QRFs at all.  The 9th Circuit noted its hesitancy to rely on district court decisions for the qualified immunity analysis.  Because the plaintiff did not have a clearly established property right to be protected by due process, the city attorney was entitled to qualified immunity.

Prison Officials Violated Clearly-Established Due Process Rights by Withholding Evidence from Inmate During Disciplinary Proceeding

In Melnik v. Dzurenda, published September 27, 2021, the 9th Circuit Court of Appeals, in a split decision, affirmed denial of a defense summary judgment motion based on qualified immunity.  The plaintiff inmate was charged with improper use of the prison mail system to smuggle drugs through the mail.  The defendant correctional officials had envelopes addressed to the plaintiff that contained drugs.  A disciplinary proceeding was brought against the plaintiff.  The officials denied the plaintiff's multiple requests to examine the envelopes or copies of the envelopes.  The plaintiff was found guilty.  He sued the officials for denial of his Fourteenth Amendment due process rights.

The panel majority held that the district court properly denied the defendants' summary judgment motion.  On the first prong of qualified immunity, withholding documentary evidence from a disciplined inmate without an articulated explanation violated the inmate's established due process rights to present documentary evidence in his behalf.  Further, on the second prong, because multiple courts had held that the right to request documentary evidence included the right to inspect the evidence or copies of the evidence, the right was clearly established.

The dissenting judge agreed that the inmate's rights were violated, but opined that because there was no on-point Supreme Court or published 9th Circuit authority establishing that right, and other circuits disagreed about it, the right was not clearly established.

Denial of Unauthorized Claim Does Not Trigger Six-Month Statute of Limitations; Notices in Response to Claim Must Be Presented to Address Set Forth in Claim

In Cavey v. Tualla, published September 24, 2021, the Fifth District Court of Appeal reversed the dismissal of a personal injury lawsuit against a public entity after demurrer.  In May 2017, the plaintiff was a passenger hit by a truck driven by the defendant employee of a school district and owned by the district.  After the accident, the plaintiff received treatment from a chiropractor, who had her sign several forms.  Among them was a one-page "CLAIM FOR DAMAGES."  The plaintiff allegedly believed this was a lien, not a governmental claim.  The only address listed in the claim was the plaintiff's post office box.  In June 2017, the chiropractor presented the claim to the district by fax.  (This method of presentation, the court noted, did not comply with the Government Claims Act, but the district waived this defect by not responding with a Notice of Insufficiency.)  Later in June 2017, the plaintiff retained counsel.  The counsel notified the adjuster for the district that they were representing the plaintiff.  In July 2017, the adjuster signed a notice of rejection of the claim the chiropractor presented.  The adjuster mailed the rejection notice to the plaintiff's counsel, and not to the plaintiff's post office box.  The rejection notice did not include a copy of the claim rejected.  The firm assumed the rejection notice related to the claim of other claimants involved in the accident.  In September 2017, the counsel presented a claim (containing more detail than the chiropractor's claim) to the district on behalf of the plaintiff.  The district did not respond to the claim.  The claim was deemed rejected by operation of law in November 2017.  In April 2018, the counsel filed a complaint on behalf of the plaintiff.  The complaint was thus filed less than five months after the rejection by operation of law, and 11 months after the accident.  The district obtained a demurrer on the ground that the June 2017 claim for damages was signed by and presented on behalf of the plaintiff, and that plaintiff had failed to file suit within six months of the July 2017 rejection of that claim.

The appellate court concluded that the chiropractor's claim was a nullity, and that the rejection of that claim did not trigger Government Code section 945.6(a)(1)'s six months statute of limitations.  The court analyzed the language in Government Code sections 910 and 910.2 that a claim may be presented and signed either by the claimant or by a person acting on the claimant's behalf.  After considering case law dealing with unauthorized claims, and the policies behind the claims requirement, the court found an ambiguity in the statutory language as to what "on the claimant's behalf"  meant.  The court further concluded that the claimant's intent should control whether a claim was presented on her behalf.  A claim is presented on a claimant's behalf if the claimant knowingly and intentionally authorized the third person to present it; or alternatively if the claimant knowingly and intentionally ratified the claim after it was presented to the public entity.  An unauthorized, unratified claim is treated as a nullity, and the entity's notice of rejection of the unauthorized, unratified claim does not trigger the six-month statute of limitations.  The possibility that public entities might be harmed by this statutory interpretation can be addressed by permitting public entities to assert equitable estoppel if they relied on an unauthorized claim to their injury, provided the other elements of estoppel are satisfied.  Because an unauthorized and unratified claim is a nullity, the claimant need not repudiate such a claim.  Applying this interpretation to the facts, the allegations in the plaintiff's complaint, assumed true on demurrer, indicate that the plaintiff neither knowingly and intentionally authorized the chiropractor to present the claim on her behalf, nor ratified the claim after presentation.  Further, while repudiation is not necessary, the claimant's  presentation of an authorized claim acts as a repudiation of the unauthorized claim, unless the entity shows that undue prejudice.  Undue prejudice is detriment to the entity's ability to defend the case on the merits or fulfill the legislative purposes of the claim statute (ability to perform an adequate pre-litigation investigation and decide whether to settle; take potential liability into account for budgeting; and address a dangerous situation to avoid further injury).  Loss of a statute of limitations defense is not undue prejudice.

Alternatively, the court deemed the notice of rejection of the chiropractor's claim defective, because it was sent to legal counsel for the claimant rather than the only address in the claim:  The claimant's post office box address.  The plain language of Government Code section 915.4 is that the notice must be sent to the address of the claimant as set forth in the claim, or the address the claim sets forth as the address to which notices are to be sent.

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.