Government Liability Update

Law Clearly Established That Shooting Suspect after Suspect Wounded Officer, but Danger Passed Violated Fourth Amendment, but Fourteenth Amendment Not Violated; No Clear Error in Admitting PTSD Evidence on Recollection Issue

In Lam v. City of Los Banos, published September 25, 2020, a divided panel of the 9th Circuit Court of Appeals affirmed in part and reversed in part denial of an FRCP 50(b) motion after jury verdict.  The defendant officer was called to the plaintiff's house to assist the plaintiff in dealing with his son, who was displaying mental illness symptoms.  When the officer and plaintiff came to the son's room, the son grabbed a pair of scissors and stabbed the officer.  The officer shot the son in the leg.  He and the plaintiff retreated down a hallway.  The officer's firearm jammed, and he used a method to clear the jam.  He then shot the son again, fatally.  Before trial, the officer moved in limine to bar evidence that he had suffered from post-traumatic stress disorder two years before the incident.  The district court denied the motion, without prejudice to objecting to the evidence at trial. The defendant did not renew the objection at trial. The jury found that the son had stabbed the officer; that the officer had retreated; and that the son did not approach the officer with scissors before the officer filed the second, fatal shot.  The jury found that the officer used force with an intent to harm.  The officer was found liable for violating the decedent's Fourth Amendment rights and the plaintiff's Fourteenth Amendment right to familial relationship.  

The panel majority affirmed the denial of the Rule 50(b) motion as to the Fourth Amendment claim.  Although the evidence established that the first use of deadly force, when the son stabbed the officer, was probably reasonable, the officer's use of deadly force after he and the plaintiff had retreated and the son was no longer armed, after the officer had time to clear his weapon, and in the absence of a warning to the son, supported the jury's finding that the use of force for the second shot was unreasonable.  The majority also ruled that denial of qualified immunity was proper, because the second use of force violated clearly established law.  Precedent from the Ninth Circuit had established that use of deadly force toward a suspect who had previously been armed or wielded a weapon, but was no longer doing so at the time force was used, was unreasonable.  Similarly, precedent established the fact that a suspect had wounded an officer or other person did not render use of deadly force against a suspect who no longer posed a threat reasonable.  The panel unanimously ruled, however, that the evidence did not support the finding of liability under the Fourteenth Amendment.  The time that passed was not sufficient for deliberation before the second shot was fired, so the test for violation of the Fourteenth Amendment--whether the conduct shocked the conscience--was whether the officer used force with an intent to harm that was unrelated to a legitimate law enforcement objective.  The jury's finding of acting with an intent to harm was not sufficient.  There was no evidence the officer used the force to bully the suspect, or out of retaliation.  Finally, the majority ruled that because the defendant did not renew the objection to the PTSD evidence, it could constitute error only if the district court committed plain error in allowing it.  Because the officer's ability to recall and self-report the events was at issue, the district court did not commit plain error in allowing the evidence.

The dissenting judge opined that because no previous case was sufficiently similar to the facts of this matter, the law did not clearly establish the second shot was unreasonable, and thus the officer was entitled to qualified immunity.  The judge also opined that allowing the PTSD evidence in was plain error absent evidence the officer suffered from PTSD at the time of the incident.

Strip Search of Prison Visitor without Giving Visitor Option of Leaving Violates Fourth Amendment, but Law Was Not Clearly Established

In Cates v. Stroud, published September 25, 2020, the 9th Circuit Court of Appeals affirmed summary judgment for defendants in a lawsuit brought under 42 U.S.C. section 1983.  The plaintiff went to a prison to visit her incarcerated boyfriend.  Before she arrived, correctional officers received a tip that the plaintiff might try to bring drugs into the prison. A correctional officer obtained a warrant to search the plaintiff's "person" and vehicle and seize any illegal controlled substances or narcotics.  The warrant was never executed.  When the plaintiff arrived at the prison, she signed a consent form to search of her person.  Two correctional officers led the plaintiff to an administrative building, where a female correctional officer strip-searched the plaintiff.  At no time before or during the strip-search was she told she was free to leave.  The officers detained the plaintiff while they searched her car.  The officers then told the plaintiff they had a search warrant, but that it did not include her cellphone.  She denied the officers permission to search her phone.  The officers then terminated the plaintiff's visit to the prison.

The panel reviewed the law concerning searches of prison visitors, and the holdings of other circuits on the subject.  The panel adopted the holdings of multiple circuits (and rejected the holding of another) and held that strip searches of prison visitors based on reasonable suspicion may be carried out only if the prison gives the visitor the option of leaving the prison rather than being searched.  Since the purpose of the search is to prevent contraband from being introduced into the prison, the need to do so does not outweigh the intrusiveness of the search if the visitor leaves the prison without accessing secure areas of the prison.  But because there was no previous Ninth Circuit ruling on this issue, or a robust body of case law from other circuits, and the rule was not sufficiently "obvious,"  the law on this point was not clearly established.  The correctional officer who carried out the search was therefore protected from liability under the Fourth Amendment by qualified immunity.

The panel rejected the argument that the officers violated the Fourth Amendment when they detained the plaintiff while searching her car; the Fourth Amendment permits a brief detention during a search.  The officers did not violate her due process rights by failing to give her a copy of the search warrant because the search warrant was not executed.

If No Single Police Officer in Chase or Use of Force Was Liable in Tort, Plaintiff Cannot Argue Combined Actions of Officers Were Unreasonable and Rendered City Liable

In Koussaya v. City of Stockton, published September 21, 2020, the Third District Court of Appeal affirmed summary judgment in favor of the defendant city and defendant police officers.  The plaintiff was a teller in a bank robbed at gunpoint.  Police officers confronted the robbers at the bank.  The robbers took the plaintiff and two others as hostages.  The robbers ignored police commands, and commanded a hostage to drive them from the site in her vehicle.  Police pursued.  Soon after the pursuit began, a robber shot the driver in the leg and threw her out of the vehicle, taking over the wheel.  A robber fired multiple shots from an AK-47 at the lead pursuing officer.  The pursuit reached speeds of over 100 MPH over 60 miles, and involved over 30 police cars.  The robbers continued shooting at the police cars.  There was confusion over which police lieutenant was commanding the pursuit, and lieutenants gave conflicting orders.  A captain who went to head off the vehicle saw it exit an offramp with a robber pointing his rifle toward the offramp.  The captain fired  shots toward the robber, who fired his weapon and withdrew into the moving vehicle.  Another officer shot at the vehicle on the exit ramp.  The plaintiff decided her best chance of survival was to throw herself out of the vehicle while it was traveling at high speed.  Minutes later, police officers fired multiple rounds into the vehicle, killing two robbers and the remaining hostage.  The plaintiff sued the officers and the city for assault and battery, intentional infliction of emotional distress, and negligence.  The complaint alleged violation of general orders, police orders, negligence in conducting the pursuit, and use of excessive force that resulted in her injuries.

The appellate court ruled that the trial court had erred in two respects.  It ruled the court abused its discretion in excluding portions of a critical Police Foundation report about the incident as hearsay.  Since the police chief who requested the review of the incident adopted portions of the report in a press conference, the trial court should have admitted those portions under the adoptive admissions exception to hearsay.  The appellate court also ruled that the trial court erred in excluding some of plaintiff's contentions of wrongdoing on the ground that they were not reflected in her claim.  The claim alleged wrongdoing concerning the response at the bank, the use of force, and the pursuit; the complaint merely filled in details to these general allegations, rather than introducing new theories of liability.  The appellate court concluded, however, that these errors were not prejudicial.  As a matter of law, the officers who used deadly force toward the vehicle at the exit ramp used reasonable force under the circumstances.  They had probable cause to believe the robber they shot at posed a significant threat of death or serious physical injury to the pursuing officers and bystanders.  While firing at the vehicle endangered the hostages in the vehicle, no reasonable juror would conclude those actions were outside the range of reasonable conduct under the circumstances.  The contention that the officers violated superiors' orders and general orders did not raise a material issue on reasonableness; those orders are evidence concerning reasonableness, but do not establish the standard of care for using deadly force.  And even if the officers violated a superior's order to fire, that violation was reasonable under the circumstances.  The argument that the officers provoked the use of deadly force by the manner in which they conducted the pursuit failed.  Vehicle Code section 17004 bars liability for the manner in which the officers operated their vehicles during the pursuit.  Vehicle Code section 17001 did not provide an exception, because the plaintiff was not injured by operation of a police vehicle, but by her decision to jump from the vehicle.  

Since none of the individual officers identified as allegedly being negligent were liable, the city could not be held vicariously liable for the allegedly negligent actions of the police collectively.  Doing so would be to hold the city directly liable despite the lack of statutory liability, in violation of Government Code section 815.

Danger, Design Approval, and Lack of Warning Are Immaterial to Trail Immunity

In Nealy v. County of Orange, ordered published September 14, 2020, the Fourth District Court of Appeal, Division 3 affirmed the trial court's dismissal, based on demurrer, of a dangerous condition lawsuit.  A county park included a loop trail used for hiking and bicycling.  In the past, a wooden lodgepole fence ran perpendicularly across the trial, serving as an entrance and exit for the trial and creating a physical barrier bicyclists had to maneuver around when riding north or south on the trail.  The plaintiff knew of the fence's existence and had ridden around it.  The fence was replaced by new fencing, consisting of wooden pylons between which were strung gray colored wired cables.  The fencing also ran parallel to the trail.  The plaintiff noticed the old fencing was removed, and mistakenly believed he could ride between the fenceposts of the new fence across the trail.  He rode into the wire cables, and was injured.  He sued the county for maintaining a dangerous condition of public property.  The county demurred on the ground of Government Code section 831.4's trail immunity.  The court sustained the demurrer with leave to amend.  The plaintiff filed a first amended complaint that changed the description of the fence, and attacked the design of the fencing.  The court sustained a demurrer to the amended complaint without leave to amend.

The appellate court ruled that under the sham pleading rule, the plaintiff could not change the description of the fencing set forth in his claim for damages or original complaint, and could not allege facts contrary to the photos he attached to his pleadings as exhibits.  The plaintiff did not contest that the trail was a trail used for recreation.  Government Code section 831.4's trail immunity therefore applied.  The fence was part of the trail, as established by past case law holding that features such as gateways to recreational trails were part of the trail for purposes of the immunity.  The plaintiff's arguments that the fencing was dangerous did not avoid the immunity, since the statute is an immunity to dangerous condition liability.  The plaintiff's contention that the design of the fence was not approved was immaterial, since the immunity at issue was not design immunity.  His contention that the county failed to warn of the cables was immaterial; the immunity is absolute, and is not dependent on warnings.  Since the plaintiff was riding his bike for recreation on a recreational trail, the fencing was a part and condition of the trail,  and that condition injured him, the immunity applied.  There was no reasonable possibility of further amendment.

Alleged Retaliation against Foster Parent for Exercise of First Amendment Rights Violates Clearly-Established Law, but Law Did Not Clearly Establish Alleged Sexual Harassment Violated Equal Protection Clause

In Sampson v. County of Los Angeles, published September 9, 2020, a divided panel of the 9th Circuit Court of Appeals affirmed in part and reversed in part the dismissal on a Motion to Dismiss of a 42 U.S.C. section 1983 lawsuit against a social worker and his superiors.  The plaintiff alleged that the defendant social worker sexually harassed her while she sought legal guardianship of her niece.  When she complained about the alleged harassment to the social worker's superiors, the social worker and superiors allegedly retaliated against her by failing to assist her in obtaining foster funding, falsely representing that the child's father had unlimited visitation rights (leading to the child's abduction), and pursuing court action to take the child away from the plaintiff.  The plaintiff alleged claims for retaliation in violation of the First Amendment for falsely accusing the plaintiff of abuse and neglect and seeking to remove the child from her custody, and violation of the Equal Protection Clause of the Fourteenth Amendment for the social worker's conduct.  The district court dismissed the claims based on the second prong of qualified immunity:  The law did not clearly establish the rights asserted.

Two judges held that the district court erred in granting qualified immunity on the First Amendment retaliation claim.  They held that earlier Ninth Circuit case law clearly established  in 2015, when the incidents allegedly took place, that the First Amendment prohibits public officials from threatening to remove a child from an individual's custody to chill protected speech out of retaliatory animus for such speech.  That the past case law involved biological parents, rather than a legal guardian, did not matter; case law established that the threat of losing custody would ordinarily chill the free expression of biological parents and legal guardians alike.  Because the district court did not address the first prong of qualified immunity--whether the plaintiff plausibly alleged a First Amendment retaliation claim--the court remanded the issue.

A different two-judge majority affirmed the holding that the law did not clearly establish that the sexual harassment violated the Equal Protection Clause.  The right under the Equal Protection Clause to be free from sexual harassment by public officials in the workplace and school contexts is clearly established by prior 9th Circuit case law.  But the 9th Circuit had never held that the Clause protects private individuals who suffer sexual harassment at the hands of public officials providing them with social services.  The court made it "abundantly clear," however, that, moving forward, state public officials violate equal protection when the sexually harass the people they serve.

Parents May Not Attempt to Control School Curricula on Religion by Bringing Constitutional Challenges

In CAPEEM V. Torlakson, published September 3, 2020, the 9th Circuit Court of Appeals affirmed  judgment in favor of the State Board of Education and State Department of Education against a challenge brought by parents of Hindu children in California state schools.  The state defendants developed model curriculum outlines concerning the history of the world's first major religions.  The plaintiffs contended that the outlines carry a hostile and denigrating message about the origins of Hinduism when compared with similar provisions relating to other religions of the world.  They brought challenges to the outlines as violating their rights under Due Process, Equal Protection, and the Establishment and Free Exercise clauses of the First Amendment.  The district court dismissed all claims except an Establishment Clause claim, and then granted summary judgment on that claim.

The appellate court affirmed.  The Equal Protection claims fail because precedent bars attempts to control school curricula through Equal Protection challenges absent evidence of unlawful discriminatory intent.  The plaintiffs failed to articulate any discriminatory intent. Nor do their challenges to the adoption of the outlines show violation of Equal Protection because the drafters allegedly did not accept their proposed edits while accepting proposed edits from other religions.  Absent discriminatory intent, they cannot challenge the content of the curricula based on Equal Protection.  The court properly dismissed the Free Exercise challenge because the plaintiffs failed to articulate any burden on their exercise or practice of their religion.  They allege no penalty or coerced conduct.  The parents' Substantive Due Process rights to make decisions in their children's upbringing do not extend beyond the school door.  In regard to the Establishment Claim, the district court properly excluded the plaintiffs' expert declaration interpreting the outlines, because the issue was how a reasonable person, rather than an expert, would view them.  The court rejected the argument that the outlines established other religions by treating them better than Hinduism.  An objective reading of the material did not establish anything from the other religions as historically accurate, and did not denigrate Hinduism.

Workplace Restraining Order against Threatening City Council Meeting Attendee Did Not Violate First Amendment

In City of Los Angeles v. Herman, published August 28, 2020, the Second District Court of Appeal, Division 2 affirmed a trial court order issuing a workplace violence restraining order imposed on the defendant under Code of Civil Procedure section 527.8, restraining the defendant's contact with a deputy city attorney.  The defendant, who regularly attended city council meetings in the plaintiff city and in Pasadena.  At multiple meetings of the defendant's city council over a two-month period, the defendant publicly revealed the deputy city attorney's address in Pasadena, swore at the attorney, submitted speaker cards with the attorney's name along with a Ku Klux Klan hood and SS lightning bolts and with the attorney's home address accompanied by a swastika (the defendant's expressed belief was that the attorney is Jewish), and said loudly and in a threatening manner, "F___ you, [attorney's name].  I'm going back to Pasadena and f__ with you."  The order precluded the defendant from harassing, threatening, contacting, or stalking the attorney, disclosing the attorney's residence, or coming within 10 yards of the attorney while attending city council and committee meetings.  The order allowed the defendant to attend council and committee meetings.  At a hearing, the defendant argued that he did not intend to threaten the attorney, but rather make statements about city council rules and his own homelessness.

The trial court found substantial evidence that the statements were threatening, that the threats were credible, that they would have put a reasonable person in fear for his or her safety, and that they were personal.  True threats are not constitutionally protected speech.  A true threat is one that a reasonable listener would understand, in context and in light of surrounding circumstances, to constitute a serious expression of an intent to commit an act of unlawful violence rather than an expression of jest or frustration.  Because the trial court reasonably found that the defendant's statements would place a reasonable person in fear for his safety, the threats fell outside the scope of First Amendment protection.  The subjective intent behind the threats is immaterial; the speaker need not actually intend to carry out the threat.  Further, most of the prohibitions in the order concern conduct rather than speech; and the portions that do apply to speech are based on specific threatening conduct not protected by the First Amendment.

Police Officers Owe Duty of Reasonable Care to Arrestees

In Frausto v. Department of the California Highway Patrol, published August 21, 2020, the First District Court of Appeal, Division 2 affirmed a jury verdict in favor of plaintiffs in a wrongful death case.  Officers conducted a traffic stop of the decedent.  They suspected he was using drugs.  They observed him put something in his mouth and swallow it.  They repeatedly asked him if he had ingested drugs.  He repeatedly stated he had put gum in his mouth and swallowed it.  They observed no signs of drug intoxication.  They brought him to jail.  One of the officers prepared a probable cause declaration for the arrest that stated that the officer and another observed the suspect place what looked like a plastic baggie in his mouth and claim it was only gum.  The arrest report did not mention a plastic baggie.  The officer later testified the statements in the declaration about the baggie were mistakes.  Soon after the officers brought the suspect to jail, he collapsed in his cell.  He died of acute methamphetamine intoxication.  The jury found the arresting officers 68% at fault for the decedent's death, and the decedent 22% at fault.  On appeal, the defendants contended that they owed no duty of care to the decedent to do more than they did.

The Court of Appeal held that the arresting officers were in a special relationship with the decedent once they arrested him, imposing a duty of care similar to that a jailer owes a jailed person. Once in custody, an arrestee is vulnerable, dependent, subject to the officer's control, and unable to attend to his or her own medical needs.  The officer therefore owes a duty of reasonable care to the arrestee regarding the arrestee's medical needs.  The question of whether under the circumstances the officers should have recognized the arrestee had a need for immediate medical attention does not go to whether a duty exists, but rather whether the officers breached the duty.

Police Officer and Judge Not Entitled to Qualified Immunity for Stopping and Arresting Person in Court on Suspicion He Is In Country Illegally

In Hernandez v. Skinner, published August 10, 2020, the 9th Circuit Court of Appeals affirmed a district court order denying summary judgment to a sheriff's deputy and a Montana state court judge on the ground of qualified immunity.  The plaintiff accompanied his wife to a hearing on the wife's request for a protection order, to serve as a witness.  While the plaintiff was waiting outside the courtroom, the subject of the requested order testified that the plaintiff was "not a legal citizen."  The judge contacted the sheriff's office, and requested deputies because he had "illegal immigrants out in the hallway."  The judge then told the wife and the defendant he would arrest them and charge them with contempt if they left the courtroom.  He wanted to prevent them from warning the plaintiff.  The defendant deputy arrived.  The judge told him that plaintiff and another witness were "illegal aliens."  The deputy went to the plaintiff in the hallway and asked him for identification and his immigration status.  The plaintiff handed the deputy an expired Mexican consulate ID card.  It did not indicate his immigration status.  The deputy handcuffed the plaintiff, searched him, and placed him in a patrol car outside.  The deputy spoke with an ICE agent who asked the deputy to transport the plaintiff to a detention facility.  The plaintiff was in ICE detention for three months before the Department of Homeland Security dismissed the deportation proceeding it had filed against him.  The plaintiff sued the judge and the deputy under 42 U.S.C. section 1983 for allegedly violating his Fourth Amendment rights.  The judge did not claim judicial immunity.  The issue was whether the defendants were entitled to qualified immunity.

The 9th Circuit agreed with the district court that the defendants were not entitled to qualified immunity.  Because an alien's illegal presence (as opposed to illegal entry) in the country is a civil violation, not a crime, 9th Circuit authority had established at the time of the stop that suspicion or knowledge that a person is unlawfully present in the United States is not sufficiently premised on criminality to justify a Terry stop.  The deputy's stop and search of the plaintiff therefore violated the Fourth Amendment.  The deputy conceded he did not have probable cause to arrest the plaintiff until he contacted ICE.  The facts indicated that once the plaintiff was in the deputy's patrol car, the Terry stop had turned into an arrest.  A reasonable person in the situation would not have felt free to leave.  The arrest without probable cause violated the Fourth Amendment.  The 9th Circuit further agreed with the district court that the judge was an "integral participant" in the deputy's unlawful actions.  While the 9th Circuit has not determined whether a "cause in fact" or "probable cause" test applies to determining "integral participants" in a section 1983 case, the judge's conduct in summoning the deputy, ordering that he wanted the plaintiff "picked up," and barring the plaintiff's wife from leaving the courtroom to warn the plaintiff.  The plaintiff's stop and arrest were foreseeable consequences.  9th Circuit precedent was sufficient to constitute the "body of relevant case law" necessary to clearly establish that the stop and arrest under the circumstances violated the Fourth Amendment.  Both defendants therefore violated clearly established law.

Intentional Tortfeasors Are Not Entitled to Reduction or Apportionment of Damages Based on Comparative Fault

In B.B. v. County of Los Angeles, published August 10, 2020, the California Supreme Court reversed a judgment after jury trial in a case alleging police use of force against a resisting suspect, resulting in the suspect's death, was battery.  A decedent who appeared to be under the influence of PCP was accused of attempting to kill a woman.  In the presence of the defendant officers, the suspect began chasing the woman.  The officers tackled the suspect, who fought against them.  The officers pinned the suspect by kneeling on him, using tasers, hitting him, handcuffing and hobble-tying him.  The suspect passed away from brain death and swelling from lack of oxygen, following a cardiac arrest, due to post-restraint maneuvers or behavior associated with drug use.  The jury found the officers committed battery by using unreasonable force.  The jury apportioned 20% liability to one of the officers, 40% to the decedent, and 40% to other officers.  The trial court entered judgment against the 20% at fault officer for 100% of the non-economic damages because his liability was based on an intentionaltort.  The Court of Appeal reversed, holding that the officer could be held liable for only his proportionate share of the damages.

The Supreme Court reviewed case law leading up to the 1986 passage of Proposition 51, case law interpreting Proposition 51, ballot materials for the proposition, and an unpassed bill that preceded the proposition, and concluded that intentional tortfeasors may not assert the defense of comparative fault.  Although jurors should apportion fault between negligent and intentional tortfeasors (to determine the apportionment to which negligent tortfeasors are entitled), the judgment should not reduce or apportion the damages award against intentional tortfeasors based on comparative fault.