Government Liability Update

Officer Violated Fourth Amendment by Entering Home under Ruse for Administrative Inspection, but Is Entitled to Qualified Immunity

In Whalen v. McMullen, published October 30, 2018, the 9th Circuit affirmed summary judgment in favor of a Washington State Patrol detective in a suit alleging the officer conducted a search of the plaintiff's house that violated the Fourth Amendment.  The plaintiff was receiving Social Security Disability benefits.  A task force that investigates potential social security fraud, investigated the plaintiff.  The task force designates investigations as either civil, criminal, or administrative.  As was common for administrative investigations, the defendant investigating detective did not obtain a search warrant, and used a ruse to communicate with the plaintiff:  the officer stated he was conducting a law enforcement investigation of identity theft.  The plaintiff spoke with the officer in front of her house, and then invited him inside.  The officer wore two hidden video cameras.  The officer spoke with the plaintiff for an hour, then left.  Based on the information the officer provided, the plaintiff's benefits were denied in part.  She was not subject to any civil or criminal action.  The plaintiff alleged that the portion of the detective's encounter with her inside her home violated the Fourth Amendment.  The district court granted the detective summary judgment based on qualified immunity.

The 9th Circuit ruled that the entry into the home, without a warrant, with hidden video cameras, and under cover of a ruse, violated the Fourth Amendment as an improper warrantless search.  It distinguished cases where, as a condition of receiving benefits, people had to allow warrantless entry into their homes, because in those cases the grounds for the entry are transparent.  Here, because the investigator identified himself as a law enforcement officer, the investigation was under a ruse and the plaintiff did not know about the video cameras, the investigator gained entry by invoking the individual's trust in her government, and then betraying it.  But because no precedent clearly established that the detective's actions would violate the Fourth Amendment, the detective was entitled to qualified immunity.

POBRA Deadline to Complete Administrative Investigation Tolled until Final Determination Made in Criminal Investigation

In Bacilio v. City of Los Angeles, published October 25, 2018, the Second District Court of Appeal, Division 2 affirmed a trial court decision on an administrative mandamus petition.  In  August 2011, a witness accused two police officers of misconduct that could give rise to both criminal and administrative liability.  Internal Affairs investigated the matter, and in June 2013 the investigator presented his findings to the District Attorney's office.  In August 2013, a deputy DA interviewed the complaining witness, and afterward commented that she was not going to file against the officers and that it was okay to administratively interview the officers.  In October 2013, the DA's office sent Internal Affairs a charge worksheet officially declining to file charges against the officers.  In September 2014, the LAPD notified the petitioner officer that Internal Affairs was seeking an official reprimand against him, and in November 2014 it brought administrative charges against him.  One of the charges against him was sustained, upheld in an administrative hearing, and upheld by the trial court.  The officer contended that the charge was time-barred because the department did not notify him of the potential discipline within the one-year limitations period of Government Code section 3304, subdivision (d)(2)(A), part of the Peace Officer's Bill of Rights.

The appellate court ruled that the notice was timely.  Section 3304 tolls the one-year period during the time that a criminal investigation or prosecution is pending against any officer involved in the matter.  The court interpreted this tolling period to run until there is a final determination whether to prosecute.  The court affirmed, as supported by substantial evidence, the trial court's determination that there was no final determination until the DA provided the worksheet, despite the DDA's earlier statement that charges would not be filed.

University Denied Student a Fair Hearing by Depriving Him of Investigation Report Crucial to Its Decision Against Him

In Doe v. Regents of University of California, published October 9, 2018, the Second District Court of Appeal, Division 6 reversed a trial court decision denying a university student a petition for writ of administrative mandate.  A female student accused the male student of sexually assaulting her while the two were on a bed, the woman under the covers and the man on top of the covers.  Others were in the room and did not see the alleged assault.  A Santa Barbara County Sexual Assault Team investigated the alleged assault, and compiled a report.  At the administrative hearing contesting the male student's suspension, the committee hearing the matter saw only two pages from the SART report.  The man was not provided with a full copy of the report.  The committee allowed an investigating officer to testify to a portion of the SART report that appeared to corroborate that the woman had been sexually assaulted.  But the officer could not answer whether the information was based on a physical exam or on the woman's allegations.  Shortly before the administrative hearing, the student learned the name of an antidepressant the woman was taking.  He tried to submit his mother's testimony about the effects of the drug with alcohol, but the committee ruled she could not render an expert opinion.  The committee determined the allegations of assault were corroborated, and suspended the student for two years.

The appellate court ruled that the male student had been denied due process.  The committee denied the student a fair trial by accepting the investigator's testimony about a portion of the SART report, but not seeing the report themselves and denying the student a copy.  Fairness demands the accused person be given the evidence against him.  The Rule of Completeness also required that once a portion of the SART report was introduced into evidence, the student was entitled to get and submit evidence about the rest.  Since the report was crucial to the outcome, the errors were prejudicial.  Other errors that deprived the student of due process included that the antidepressant evidence was revealed to the student too late for him to obtain an expert opinion, yet the committee barred non-expert evidence; the committee did not permit the student to be represented by counsel at the hearing, yet the University had counsel present who made evidentiary objections; and the committee applied the rules of evidence inconsistently, to the student's detriment.

Agency May Recover Cost of Redacting Electronic Records Produced in Response to CPRA Request

In National Lawyers' Guild v. City of Hayward, published September 28, 2018, the First District Court of Appeal, Division 3 reversed a trial court's issuance of a writ of administrative mandate directing the respondent city to refund to the petitioner payments the petitioner made for copies of police body cam video footage the city produced in response to a California Public Records request.  The city charged the petitioner for the cost of city employees reviewing the videos and using Windows Movie Maker to redact material exempt from the CPRA on privacy or security grounds.  The city sought the cost under a portion of the CPRA, Government Code section 6253.9, subdivision (b)(2).  The statute requires the requester to bear the cost of producing a copy of an electronic record if the request would require "extraction" to produce the record.  The trial court concluded that the phrase "extraction" does not apply to redaction of an electronic record, but only to extraction necessary to produce the record.

The appellate court disagreed.  Concluding that the statute's language is ambiguous, the court reviewed the legislative history.  It noted a concern that the cost of producing only portions of electronic records would exceed the cost of redacting paper documents.  The court concluded that "extraction" as used in the statute includes the cost of redacting exempt portions of electronic documents before producing them under the CPRA.

Mental Patient Who Is Danger to Himself or Others Cannot Avoid Involuntary Medication Based on Belief in a Religion with a Congregation of One

In California Department of State Hospitals v. A.H., published September 21, 2018, the Second District Court of Appeal, Division 6 affirmed a Qawi order authorizing a state mental hospital to involuntarily administer antipsychotic medication to the defendant to treat his severe mental illness.  The defendant asserted that the involuntary medication violated his free exercise of his religion.  The defendant committed arson, lapsed into psychosis, was committed as a mentally disordered offender, was violent toward hospital staff, and threatened to commit a mass shooting if released.  Hospital mental health staff conducted two administrative hearings, and determined that antipsychotic medication was required to treat the defendant.  The defendant petitioned the superior court for relief from the order.  The trial court found that the defendant lacked capacity to refuse medical treatment and issued the Qawi order.

The appellate court noted that the federal and state constitutions prohibit involuntary medication that burdens a patient's free exercise of religion unless a compelling state interest outweighs the patient's interest in free exercise.  The Religious Land Use and and
Institutionalized Persons Act of 2000 and the Lanterman-Petris-Short Act contain similar protections.  The defendant  bears the initial burden of showing that (1) he seeks to engage in the exercise of religion and (2) the Qawi order substantially burdens the exercise of his religion.  The religious belief must be seriously held, and not a purely secular religious concern.  The defendant had been taking other antipsychotic medications, but suddently announced that his god had "more or less" told him not to use antipsychotic drugs.  The defendant suffered from a disorder that was not entirely religious based.  Substantial evidence supported the conclusion that the defendant's religious beliefs were not sincere, and that the state's compelling interest in preventing an individual from harming himself or others justified the Qawi order.

Eighth Amendment Excessive Force Claim Does Not Require Proof That Officer Derived Pleasure from Using Force

In Hoard v. Hartman, published September 13, 2018, the 9th Circuit found a jury instruction in an inmate's 42 U.S.C. § 1983 case alleging a guard used excessive force against him to be plain error, requiring reversal and retrial even though the plaintiff's counsel failed to object to the instruction.  The district court instructed the jury that to succeed on his Eighth Amendment excessive force claim, the plaintiff had to prove the guard acted "maliciously and sadistically for the purpose of causing harm" when he used force.  The jury requested a definition for "maliciously and sadistically."  The plaintiff's counsel concurred with the court's definition of "maliciously" as "‘having or showing a desire to cause harm to another" and "sadistically" as "having or deriving pleasure from extreme
cruelty."  The jury found for the defense.

The 9th CIrcuit held that the court's requirement that the plaintiff find that the guard had a desire to cause harm and derived pleasure was plain error.  Although Supreme Court cases have used the terms "maliciously and sadistically," and the 8th Circuit has interpreted this as a requirement for a use of excessive force that violates the Eighth Amendment, the 9th Circuit disagreed and held that the terms were merely rhetorical devices for conveying that the claim required a showing of specific intent to harm.

Female Officer Violated Clearly-Established Law by Observing Female House Inhabitant Use Bathroom During Execution of Search Warrant for House

In Iaone v. Noll, the 9th Circuit Court of Appeals affirmed denial of summary judgment to an IRA Agent in a 42 U.S.C. section 1983 lawsuit alleging the agent violated the plaintiff's Fourth Amendment rights.  The agent was part of a group of agents executing a search warrant for the plaintiff's house.  The agents informed the inhabitants that they were free to leave during the search, but would not be allowed to return.  The male inhabitant used the bathroom.  A male agent escorted him to the bathroom, searched the room, then stood outside the closed door while the man used the facilities.  Later the female inhabitant asked to use the bathroom.  The defendant agent insisted on staying inside the bathroom, ordered the female inhabitant to remove her clothes, and then faced the woman while she used the toilet.  She sued the agent.

The 9th Circuit agreed that the agent had violated the plaintiff's Fourth Amendment rights, and was not entitled to qualified immunity.  The majority, citing a series of 9th Circuit cases involving officers of one gender observing persons of another gender nude (and in one case using the bathroom), concluded that, regardless of gender, case law established at the time of the incident that observing an undetained person in her own home while she used the bathroom was a significant intrusion into her privacy.  The law further established that the search warrant for the premises did not justify searching an individual on the premises absent reasonable suspicion the person is armed and dangerous.  None of the agent's justifications for the observation were supported by the circumstances.

A concurring judge disagreed that cases limiting officers of the opposite gender from viewing persons naked clearly established that a female officer observing a female violated the Fourth Amendment.  But the judge agreed that the law clearly established the search warrant for the house did not justify the agent's search of the inhabitant absent reasonable suspicion.

Officers Violated Fourth Amendment and Is Liable under State Law for Arresting Middle-School Students to Teach Them a Lesson

In Scott v. County of San Bernardino, published September 10, 2018, the 9th Circuit affirmed summary judgment granted to the plaintiffs, three middle-school students.  The three students, 12- and 13-year-old girls, went to school officials to talk about another student's bullying and threats toward them.  A school administrator asked one of the defendants, a deputy who was a school security officer, to come to the campus to talk to the girls and the girl they complained about.  He intended to mediate the conflict.  WIthin a few minutes, however, he decided that the girls were being disrespectful.  He decided to arrest them, to prove that he "wasn't playing around," "to prove a point" and "to make [them] mature a lot faster."  He and another deputy defendant handcuffed the girls.  The allege aggressor was released to her father on campus.  The others were driven in a police vehicle to  the sheriff's department, where they were interviewed and released to their parents.  No charges were filed.  At trial, the district court granted the plaintiffs summary judgment both on their 42 U.S.C. § 1983 claim and their state law false arrest claim.

The 9th Circuit agreed that the deputies were liable.  New Jersey v. TLO ruled that the Fourth Amendment protects students, subject to a "special needs" exception under which warrantless searches do not violate the Fourth Amendment if the actions are justified at their inception and reasonably related in scope to the circumstances that justified the actions.  The arrests violated both parts of the test.  The actions were not justified at their inception.  The deputies had no specific information any of the arrested girls had done anything.  Further, under the special needs exception, the officers' subjective motivation may be considered.  The deputies' stated reasons for the arrest did not provide justification for arrest.  Further, handcuffing and arresting middle-school girls was an unreasonable response to the school's need.  Because the law was clear that the deputies' arrest violated the Fourth Amendment, they were not entitled to qualified immunity.  Under state law, none of the statutes under which the deputies justified the arrest applied.  The district court therefore properly granted summary judgment on the state law false arrest ground as well.

Landowners Could Not Challenge Landslide Development Moratorium as Unconstitutional Taking where Moratorium Is Facially Constitutional and Administrative Remedies Have Not Been Exhausted

In Black v. City of Palos Verdes, published September 6, 2018, the Second District Court of Appeal, Division 1 affirmed the trial court's decision denying a petition for a writ of mandate and finding that the defendant city's moratorium on construction in a landslide area was not a regulatory taking.  The city had areas where ancient landslides were active.  A previous development moratorium ordinance that required property owners to engage in expensive private testing to establish that the area was stable (which would have been futile, since the city found the area was not stable) was found unconstitutional.  The city repealed the ordinance, and amended its moratorium to allow building in the landslide area provided that an exemption permit was approved by the city,  the project complied with the city code's mitigation provisions, and the owner submitted any studies the city required to demonstrate the development would not exacerbate the existing situation.  A group of landowners filed a petition for writ of mandamus and a complaint for inverse condemnation seeking to compel the city to take certain actions concerning development in the landslide area.  One landowner submitted an application for an exception to the moratorium before the suit was filed.  The record did not show what action was taken on the application.  The landowner settled with the city and was no longer a party to the suit.

The appellate court ruled that the trial court properly ruled against the landowners.  The landowners' facial attack against the moratorium failed, because it was not a regulation that went too far.  The landowners could not prevail on an as-applied challenge, because they had not exhausted the administrative remedies available by applying for an exception to the moratorium.  They failed to demonstrate that exhausting those remedies would be futile.  They could not rely on the previous litigation as precedent for futility, because the ordinance on which the previous case was based had been repealed and the moratorium amended.

While Police Department Did Not Retaliate against Fired Employee for Exercising First Amendment Rights, Requiring Her to Sign Agreement Not to Criticize City, Department, or Employees Was Unconstitutional Prior Restraint

In Barone v. City of Springfield, published September 5, 2018, the 9th Circuit Court of Appeals affirmed in part and reversed in part a defense summary judgment in this 42 U.S.C. § 1983 lawsuit.  A police department community service officer served as community liaison to the city's minority communities.  Members of the Latino community complained to her of racial profiling.  The officer became the subject of internal affairs investigations.  After the investigations began, the officer spoke at a community event, in uniform.  The department paid her to be present, and her presence on behalf of the police department was advertised.  At the event, she answered a question from the audience about increasing racial profiling complaints by stating she had heard such complaints.  A week later, the police chief placed her on administrative leave for alleged untruthfulness in the two internal affairs investigations.  The department eventually informed her she had to sign a "last chance agreement" to keep her job.  The agreement barred her from saying or writing anything negative about the city, the department, or the department's officers.  It permitted her to report complaints involving discrimination or profiling by the department.  She refused to sign the agreement, and was terminated.  She sued the department for First Amendment retaliation and imposing an unlawful prior restraint.

The 9th Circuit agreed with the district court that the defendants were entitled to summary judgment on the First Amendment retaliation claim.  Under the facts, the plaintiff spoke in her capacity as a public employee when she spoke at the community event.  Her speech was therefore not protected by the First Amendment.  The 9th Circuit reversed the district court's conclusion that the last chance agreement was not an unlawful prior restraint.  Applying the Pickering standards for limitations on public employee speech, a restriction on criticizing the city, the department, or the department's officers was overbroad, since it covered both speech as an employee and speech as a private citizen.  The speech involved a subject of public interest.  The burden shifted to the defendants to justify the restriction.  The department's interests in protecting the department from disrepute and preventing employee misconduct did not justify the broad restrictions.