Government Liability Update

Claim for Fabrication of Evidence Does Not Require Evidence of Motive or “But For” Causation

In Richards v. County of San Bernardino, published June 24, 2022, the 9th Circuit Court of Appeals reversed summary judgment granted to the defendant county and a county investigator in a 42 U.S.C. section 1983 action.  The plaintiff was accused of murdering his wife.  The defendant investigator found, under the fingernails of fingers of the remains that had been severed after the autopsy (and that had been scraped for trace evidence) a visible blue fiber that matched a shirt the plaintiff had been wearing.  Two trials of the charges against the plaintiff ended with hung juries.  A third ended in mistrial.  Before the fourth attempt, the county retained a forensic odontologist who opined a bruise on the decedent’s hand (which the medical examiner had determined was not a bitemark) was a bitemark that was consistent with the plaintiff’s teeth.  Plaintiff spent 20 years in prison before a habeas corpus petition with new evidence (including the odontologist recanting his testimony) resulted in vacation of his conviction.  The plaintiff then sued various sheriff’s officers and the county for constitutional violations allegedly committed during the murder investigation and prosecution.  In particular, he alleged that the investigator had fabricated the blue fiber evidence, and that the county’s customs and policies resulted in the alleged constitutional violations.  The district court granted summary judgment for all defendants.  It found that the plaintiff did not carry his burden of showing any constitutional errors, and therefore could not prove the county’s Monell liability.

The court of appeals disagreed on those points.  It held that the district court erred in rejecting the deliberate fabrication claim on the grounds that the plaintiff was unable to point to evidence of a motive to deliberately manipulate the evidence; there were more plausible explanations for the late discovery of the fibers; and that the plaintiff had failed to prove causation.  There is a clearly established constitutional due process right not to be subjected to criminal charges based on false evidence deliberately fabricated by the government.  The district court erred in requiring the plaintiff to show evidence of motive.  While motive is potentially strong circumstantial evidence in support of a fabrication claim, it is never required.  The plaintiff had direct evidence of fabrication.  He therefore had no need to show motive.  The finding of a more plausible explanation of the fiber was error, because it resulted from the district court weighing the evidence.  The district court had to accept the plaintiff’s evidence as true without making credibility determinations or weighing the evidence.  Further, the plaintiff presented evidence from which a jury could reasonably infer that the fibers were not under the decedent’s fingernails at the time of the autopsy.  The district court also erred in concluding that the fiber evidence was not the “but for” cause of the conviction, in light of the bitemark.  Because of the fundamental due process right at issue, the correct standard was not but-for causation, but rather whether the evidence was “material”—i.e, there is a reasonable likelihood that the allegedly fabricated evidence could have affected the judgment of the jury.  Finally, the court erred in holding the Monell claims failed because there was no predicate constitutional violation by a government official.  Because there was an issue of fact as to whether the investigator fabricated the evidence, there was an issue of fact on constitutional violation.  Further, even if no individual violated the Constitution, if the plaintiff can establish he suffered constitutional injury by a county policy, the fact that individual officers are exonerated is immaterial to Monell liability.  Here, the plaintiff put forth theories of Monell liability not premised on findings of liability by any individual officer.

Use of Criminal Defendant’s Un-Mirandized Statement against Him Does Not Support Claim under 42 U.S.C. Section 1983

In Vega v. Tekoh, published June 23, 2022, the U.S. Supreme Court reversed the 9th Circuit’s decision that itself reversed a verdict in a suit under 42 U.S.C. section 1983.    The plaintiff was questioned by police at his workplace.  He was not given Miranda warnings before questioning.  His statement was used against him at his criminal trial.  The trial court ruled that because he was not in custody during questioning, his statement could be used against him.  The case ended in a mistrial.  In the retrial, the statement was again used against him.  He was acquitted.  He then sued the officer who questioned him.  Among his claims was that the officer violated his Fifth Amendment right against self-incrimination.  The district court declined to instruct the jury to find a Fifth Amendment violation if it determined that the defendant took a statement in violation of Miranda that was then improperly used against the plaintiff.  The jury found for the defendant.  The Ninth Circuit reversed, holding that use of an un-Mirandized statement against a defendant in a criminal proceeding violates the Fifth Amendment, and may support a section 1983 claim.

 

The Supreme Court majority reversed.  Examining the history of decisions interpreting its ruling in Miranda, the court concluded that the Miranda rule is a prophylactic rule that protects the rights of a person questioned in custody, including Fifth Amendment rights; and that this right is Constitutionally based.  But a violation of the Miranda right is not itself tantamount to violation of the Fifth Amendment right against self-incrimination.  Further, although it can be argued that Miranda rules constitute federal law, that law should not be expanded to include the right to sue for damages under section 1983 for its violation.  Judicially-crafted prophylactic rules should apply only where the benefits outweigh the costs.  The costs of allowing section 1983 claims for violation of Miranda rights would outweigh the costs.

 

Three justices opined that Miranda protections are rights secured by the Constitution, and therefore violation of them should be actionable under section 1983.

 

 

 

https://www.supremecourt.gov/opinions/21pdf/21-499_gfbh.pdf

Employee's Immunity Does Not Bar Public Entity's Liability under Vehicle Code section 17001

In Silva v. Langford, ordered published June 9, 2022, the Second District Court of Appeal, Division 7 affirmed in part and reversed in part a trial court's dismissal of a lawsuit after demurrer.  The operative First Amended Complaint alleged that in the early morning hours an Uber driver pulled into the Number One lane on the 101 Freeway and demanded that his passengers get out of the vehicle.  While one of the passengers was attempting to cross the lanes of traffic to get to safety, the defendant CHP officer struck and killed him.  The CHP officer was allegedly driving at an excessive speed without activating lights and sirens.  The original complaint alleged that the officer was responding to a call.  These allegations were omitted from the FAC.  The plaintiff sued the officer and CHP for wrongful death, alleging the CHP was liable under Government Code section 815.2(a) for the officer's negligence, and also liable under Vehicle Code section 17001 for the officer's violation of the basic speed law.  The officer and CHP demurred on the ground that liability was barred by Government Code section 821.6, because the officer was allegedly responding to a call, the first step in a police investigation.  CHP contended that under Government Code section 815.2(b), it was entitled to the benefit of the officer's immunity.  The trial court sustained the demurrer on the ground that section 821.6 immunized both the officer and the CHP.

The appellate court noted that the issue of the scope of section 821.6, and whether it applied to acts in the course of a police investigation or merely malicious prosecution actions, was currently pending before the California Supreme Court and was undecided.  It nevertheless ruled that the officer's actions were independently immunized under Vehicle Code section 17004, which immunizes public employees from civil damages resulting from the operation in the line of duty of an emergency vehicle when responding to an emergency call.  Although the court sustained the officer's demurrer on a different basis, the ruling must be upheld if correct on any ground.  But the appellate court reversed demurrer against the CHP.  Vehicle Code section 17001 provides an independent ground for public entity liability for negligent or wrongful operation of a motor vehicle by a public employee, which is not based on vicarious liability under Government Code section 815.2(a).  The liability is therefore not subject to Government Code section 815.2(b), which is an exception to vicarious liability of public entities for their employees' acts under section 815.2(a).

Public Employer That Establishes by Undisputed Evidence It Had Legitimate Independent Reasons for Releasing Employee from Probation Entitled to Summary Judgment against Whistleblower Claim

In Vatalaro v. County of Sacramento, ordered published June 1, 2022, the Third District Court of Appeal affirmed summary judgment for the defendant county in a whistleblower retaliation suit under Labor Code section 1102.5.  The plaintiff, an administrative analyst, was promoted to an administrative services officer position.  The position was probationary for six months.  The plaintiff complained about her job duties in her new position, which she believed did not rise to the level of her position.  After her report, the plaintiff felt mistreated on several occasions, which she believed was attributable to her complaints.  Her supervisor eventually recommended that the plaintiff be released from probation on the alleged grounds that she had been insubordinate, disrespectful, and dishonest in her actions.  The trial court granted the county's motion for summary judgment, ruling that the county had met its burden of showing plaintiff could not allege a prima facie cause of retaliation because she had not alleged or presented evidence of protected conduct under section 1102.5, because she did not have a reasonable belief the county had violated a specific federal, state, or local law or regulation, but instead had only shown she complained about internal personnel matters.  The court further ruled that the county had presented evidence it had a legitimate business reason for releasing the plaintiff, and the plaintiff had failed to raise a triable issue of material fact to support that the reason was pretext.

The appellate court ruled that the trial court's analysis was incorrect, but nevertheless affirmed summary judgment.  The three-stage analysis the trial court had applied was disapproved for Labor Code section 1102.5 cases in Lawson v. PPG Architectural Finishes, Inc. (2022) 12 Cal.5th 703, because it fails to acknowledge Labor Code section 1102.6.  Section 1102.6 provides that once the plaintiff demonstrates by a preponderance of the evidence that an activity proscribed by Section 1102.5 was a contributing factor in the alleged prohibited action against the employee, the employer shall have the burden of proof to demonstrate by clear and convincing evidence that the alleged action would have occurred for legitimate, independent reasons even if the employee had not engaged in activities protected by Section 1102.5.  Therefore, under section 1102.6, once the plaintiff has met her burden, the burden shifts to the employer to demonstrate, by clear and convincing evidence, that it would have taken the action for legitimate, independent reasons even had the plaintiff not engaged in protected activity.  The plaintiff need not show the reason was pretextual.  The appellate court also questioned whether the correct test for a prima facie case is whether the plaintiff had a "reasonable belief," as multiple cases hold, since section 1102.5 actually refers to a "reasonable cause to believe."  The appellate court ultimately did not resolve that issue, because it ruled that the trial court properly granted summary judgment on the ground that the county had carried its burden under section 1102.6 by presenting undisputed evidence that it had a legitimate business reason to release the plaintiff--that she was insubordinate, disrespectful, and dishonest in her actions.

City Does Not Violate E-Scooter Riders' 4th Amendment Rights by Collecting Anonymous Data

In Sanchez v. LADOT, published May 23, 2022, the 9th Circuit Court of Appeals affirmed dismissal of a lawsuit against the defendant city and agency under 42 U.S.C. section 1983 and the California Electronic Communications Privacy Act.  As a condition of giving permits to dockless e-scooter companies, the agency required e-scooter operators to provide vehicle location data through an application programming interface, MDS.  MDS automatically complies real-time data on each e-scooter's location by collecting the start and end points and times of each ride taken.  The plaintiff alleged that the agency could use the information along with other information to identify trips by individuals to sensitive positions.

The 9th Circuit rejected the argument.  A person has no legitimate expectation of privacy in information the person voluntarily turns over to third parties.  The plaintiff knowingly and voluntarily disclosed the information to the e-scooter operators by renting the e-scooters and agreeing to the company's privacy policies.  The nature of the disclosed data indicated a diminished expectation of privacy.  It disclosed the location of an e-scooter typically rerented after each individual trip.  The collection of data was therefore not a search and did not violate the 4th Amendment, or the California constitution.  The court also affirmed denial of the CalECPA claim, on the ground that the statute did not create a private right of action.

Piling onto Suspect in Violent Crime Who Posed No Immediate Threat Violated Clearly Established Right against Use of Excessive Force

In Andrews v. City of Henderson, published May 23, 2022, the 9th Circuit Court of Appeals affirmed a district court's denial of summary judgment to two police detectives.  The plaintiff was a suspected getaway driver in a series of armed robberies of businesses.  The detectives followed the plaintiff and another suspect in the robberies to a courthouse.  One detective followed them into the courthouse, where the plaintiff and the other suspect passed through a metal detector and an x-ray scanner.  The other detective waited outside the courthouse to arrest the plaintiff, because they knew he would be unarmed since he passed through the metal detector.  When the plaintiff and other suspect emerged, the detectives walked slowly toward them without identifying themselves.  When a detective was a foot away from the plaintiff, he lunged and tackled him to the ground.  The other detective landed on top of them as they fell.  The takedown fractured the plaintiff's hip, requiring two surgeries.  The plaintiff sued the detectives and the city under 42 U.S.C. section 1983 for use of excessive force.  The district court denied the officers' summary judgment motion, finding an issue of fact on whether they used excessive force.  It granted in part and denied in part the City's motion for summary judgment.  The officers appealed the denial of their summary judgment to the extent it was based on qualified immunity.

The 9th Circuit applied the two prongs of qualified immunity.  On the first prong, the court ruled the district court properly denied summary judgment on whether the officers violated the 4th Amendment in their use of force.  The officers used a substantial amount of force, which had to be justified by the need for the specific level of force.  The governmental interest in using substantial force was minimal.  Despite the violent crime of which he was suspected, at the time the force was used the plaintiff posed no immediate threat, as he was unarmed (which the detectives knew), was not engaged in criminal conduct, was not exhibiting aggressive behavior, and was not resisting arrest or attempting to flee.  Further, the officers gave no warning, and presented no evidence that tackling the plaintiff was the only option available to them.  The court then analyzed the second prong, and determined whether the plaintiff's constitutional right to be free of the force was clearly established in light of the specific context of the case.  Based on 9th Circuit case law barring tackling suspects of minor crimes who did not pose an immediate threat, combined with case law barring use of substantial force against even armed suspects who posed no threat, the law clearly established that the use of substantial force under the circumstances would violate the plaintiff's 4th Amendment rights.  Even though the plaintiff was suspected of a major, violent crime, the deciding factor is that the suspect posed no immediate threat to the officers and the public.  The court declined to exercise its discretion to review the summary judgment ruling concerning the city.

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.