Government Liability Update

Two Ninth Circuit Cases on Probable Cause

In Cuevas v. de Roco, published today, the Ninth Circuit held that police officers who enter a home in search of a parolee, without a warrant and without probable cause that the parolee is there, violate the Fourth Amendment rights of the home's inhabitants.  The initial intrusion in Cuevas occurred when a plainclothes parole officer, accompanied by sheriff's deputies, stuck his foot in the home's door as the homeowner attempted to close it, thinking that the officer was a home-invasion robber.  Deputies who subsequently entered in response to the female homeowner's screams did not violate the owners' due process rights; they had probable cause and exigent circumstances that permitted them to enter without a warrant.

In Fogel v. Collins, also published today, the Ninth Circuit held that police officers violated the First Amendment rights of a van owner when they arrested him and impounded his van; but that the officers were entitled to qualified immunity.  The van was emblazoned with provocative political and satirical statements, including, one stating he was a suicide bomber communist terrorist.  The officers searched the van for a bomb, did not find one, and did not believe he had one.  They nevertheless arrested the owner for threatening a crime involving great bodily injury; for false report of a hidden bomb; and for use of offensive language in a public place.  The Ninth Circuit ruled that political rhetoric or hyperbole, particularly when not aimed at a particular person, is protected speech.  The Ninth Circuit declined to rule whether an objective or subjective standard applied to judging the speech protected, because it found the speech protected under either standard.  Anyone who saw the van, the Ninth Circuit found, would not have taken the slogans on it seriously.  But it found the officers entitled to qualified immunity, because there was no clearly-established law at the time on whether post-9/11 satiric bomb threats were protected by the First Amendment.

Responses to Request for Admission Control Standard of Care Instruction for Police Auto Accident Case

Monroy v. City of Los Angeles holds that a court committed reversible error by instructing the jury in a police car-civilian car collision case that Vehicle Code section 21055 governed the standard of care of officers speeding while responding to a call.  The city had admitted in response to requests for admissions that the call was a Code 2 (urgent) but not a Code 3 (emergency); and that the driver was subject to the Vehicle Code while driving.  Vehicle Code section 21055 reduces the degree of care an officer must exercise, and exempts the officer from negligence per se for violating provisions of the Vehicle Code -- but only if the officer is responding to an emergency.  The RFA admissions were binding.

Search of Employees' Text Messages May Violate Federal and State Constitutions

Quon v. Arch Wireless, a 9th Circuit case published on June 18, 2008, ruled that if a public employee has an expectation of privacy in text messages made from work-issued equipment (such as text pagers), an employer search of the messages' contents may violate the Fourth Amendment and the privacy protection provision of the California Constitution.

The police department that employed the plaintiff in Quon had an official policy advising employees that they could not use text messages for non-business purposes; but the plaintiff's supervisor had an informal policy that the department would not audit the messages as long as the employees paid for any use over the established limit of characters per month.  The court ruled that the informal policy created an expectation of privacy; and that a department review of the text messages was an overbroad search and seizure -- violating the officer's state and federal constitutional rights.  Further, since the information used would not have led to administrative or criminal prosecution against the officer, Government Code section 821.6 did not immunize the department or its employees from the state law claim.

New Intersection-Accident Case Sets Forth Procedural and Substantive Rules for Summary Judgment Oppositions, Liability, Design Immunity, and CCP 1038 Fee Denials

Laabs v. City of Victorville, decided today by California's Fourth District Court of Appeal, Division 2, includes the following  holdings important to California governmental entity liability in general, and dangerous-condition cases in particular:

• Any theory of public entity liability asserted in opposition to a defense summary judgment motion must be present (or be fairly reflected in) the complaint; it cannot appear for the first time in the opposition papers.  The same rules that bar variance between a plaintiff's claim and the plaintiff's later complaint apply.  If the plaintiff wants to assert a new theory, the plaintiff must seek leave to amend the complaint either before the summary judgment hearing, or at the hearing itself; it cannot "amend" the complaint by simply raising the new issue in the opposition.
• In an intersection accident where one entity owned only the northbound lane and another only the southbound lane, both parties can be liable for an accident in the northbound lane if one of the parties was headed toward that lane, provided there is evidence that both had the ability to change or control the other's property.
• If a defendant is moving for summary judgment based on design immunity, the defendant can use the plaintiff's expert's declaration that the roadway design was reasonable to supply substantial evidence that the design was reasonable. 
• A CCP 1038 motion for costs made after summary judgment is granted, but before the judgment is signed and entered, is timely.  The motion cannot be made after appeal.
• Before denying a CCP 1038 motion, a trial court must find that the action was brought with both subjective good faith and objective reasonable cause.  But if the court's order is silent on those findings, the appellate court will presume that the court made those findings.

U.S. Supreme Court Bars "Class of One" Claims by Public Employees

In Engquist v. Oregon Dept. of Agriculture, decided June 9, 2008, the U.S. Supreme Court held that "class of one" equal-protection claims were incompatible with public employment.  A "class of one" claim is an assertion that a public entity has treated the plaintiff different from other similarly-situated persons; and that there is no rational basis for the difference.  If the facts show that kind of irrational treatment, the plaintiff may be able to assert violation of her equal protection rights, even if the discrimination is not based on her race, sex, or other "suspect" classification.  Engquist holds that such claims by public employees against public employees are improper, in light of the policy against constitutionalizing employment grievances.