Government Liability Update

Prosecutorial Immunity Extends to Bane Act Claim; County DA Enjoys 11th Amendment Immunity When Investigating Criminal Acts

In County of Los Angeles v. Superior Court (West), published on January 22, 2010, the 2^nd DCA, Division 3 held that a county district attorney and his personnel are immune from liability under the Bane Act (Civil Code § 52.1) for allegedly exceeding a search and seizure warrant, or for a search and seizure without probable cause, under Government Code §§ 821.6 (prosecutorial immunity) and 820.2 (discretionary immunity). The court also ruled that when a County DA is supervising a search and seizure, in his official capacity, as part of a criminal investigation, he is acting for the state, not the county; and therefore the Eleventh Amendment bars a 42 U.S.C. § 1983 suit against the DA for the search and seizure. The court issued a writ directing the trial court to grant the defendants summary adjudication as to those causes of action.

CCP 1038 Defense Fees Cannot Be Awarded for Defeat of a Frivolous Claim under Section 1983

In California Correctional Peace Officers’ Association v. Virga, published January 15, 2010, the First District Court of Appeal held that defendants cannot obtain Code of Civil Procedure § 1038 attorney fees based on a frivolous suit under 42 U.S.C. § 1983 -- even if the defendant is one that is not amenable to suit under § 1983. Section 1038 applies only to causes of action brought under the Government Claim Act; and a suit under § 1983 is not brought under the Claim Act.

Divided 9th Circuit Panel Holds Officers May Violate Equal Protection by Declining to Arrest Suspect Based on Ethnicity

In Elliot-Park v. Manglona, published January 12, 2010, a divided Ninth Circuit panel ruled that a plaintiff stated claims against police officers under 42 U.S.C. § 1983 for denial of equal protection, and under 42 U.S.C. § 1985 for conspiracy and obstruction of justice, because the officers allegedly declined to arrest the driver who hit plaintiff’s vehicle for driving under the influence. The plaintiff alleged that the officers did not arrest the obviously intoxicated driver because the driver belonged to the same ethnic group as the officers, and the plaintiff belonged to a different ethnic group. The majority ruled that government officers cannot use race as the basis to deny any governmental services. It also ruled the officers weren’t entitled to qualified immunity.

The dissenting judge argued that a police officer’s discretion over whether to arrest persons should invalidate the claim. The dissenter also opined that the failure to arrest a third person didn’t injure the plaintiff, especially since the police officers provided services to the plaintiff: They summoned an ambulance for her, and made sure she was transported to the hospital. Further, since no previous case law provided officers could be held liable for discrimination under these circumstances, the dissenter believed the officers should be entitled to qualified immunity.