Government Liability Update

Coroner Has No Duty to Obtain Family's Consent Before Retaining Organ for Study after Autopsy

In Benson v. Superior Court, filed May 25, 2010 and ordered published June 22, 2010, the 1st DCA held that, under California law, neither the coroner nor a doctor employed by the coroner owes a duty to a decedent's next of kin to obtain the family's consent before retaining an organ (in this case, a heart) from the decedent's body after autopsy.  The plaintiff defeated summary judgment in the trial court by presenting an expert's declaration that retaining the entire heart was not necessary for clinical diagnostic purposes.  The appellate court ruled that summary judgment should have been granted, because the coroner may retain an organ for study or to determine the cause of death, without seeking the next of kin's consent.

Plaintiff Who Proves Officer Used Excessive Force May Be Entitled to Attorney Fee Award in Civil Rights Case, Even if Jury Awards Nominal Damages

In Guy v. City of San Diego, published June 17, 2010, the Ninth Circuit affirmed (with one judge dissenting) a jury verdict that found a police officer used excessive force in arresting the plaintiff, but awarded the plaintiff nominal damages and no punitive damages.  The majority ruled that, under the evidence, the jury might have found that the officer’s uses of reasonable force, rather than his uses of excessive force, caused the plaintiff’s claimed injuries.

But the court unanimously reversed the district judge’s decision that the plaintiff was not entitled to an attorney fee award under 42 U.S.C. § 1988.  When a plaintiff wins only nominal damages in a § 1983 suit, the plaintiff may still claim attorney fees if the plaintiff’s victory served an important purpose.  Here, the verdict sent a message to the city police department (which had ruled administratively that the use of force was proper) that the force used was excessive, and that justification for reasonable use of force did not excuse excessive use of force.

Police Department's Search of Its Employee's On-Duty Pager Messages Was Reasonable under the Fourth Amendment

In City of Ontario v. Quon, published June 17, 2010, the U.S. Supreme Court reversed the Ninth Circuit’s decision that a police department’s review of its officer’s pager messages (which revealed sexually explicit messages sent while the officer was on duty) violated the officer’s Fourth Amendment rights.

The court unanimously declined to determine whether the officer had a reasonable expectation of privacy in the messages, in light of the department policy that the messages could be audited, and statements by supervisors that allegedly undercut that policy.  The court assumed for purposes of argument that the messages were protected by the Fourth Amendment.  But the court found that the search was reasonable.  The court took into account the realities of the workplace, and the non-investigatory purpose of the search (auditing usage to determine if messages were work-related, and whether the message limits were too low).  The court held that the employer did not have to use the least intrusive means to pass Fourth-Amendment muster.  The majority opinion cautioned against setting broad rules concerning expectations of privacy, in light of changing technologies and changing attitudes towards using portable technology.

First Amendment Does Not Bar Members of Local Government Board from Voting Fellow Member Out of Leadership Position Based on Political Views

In Blair v. Bethel School District, filed June 14, 2010, the 9th Circuit ruled that the former vice president of a school board did not have a First Amendment retaliation claim against his fellow members for voting to remove him as vice president.  The members voted the plaintiff out because of his political views:  his constant public criticism of the school superintendent.  The plaintiff remained a voting member of the board.

The Ninth Circuit held that the First Amendment permits political officials to cast votes in internal elections that are based on the candidates' views.  Indeed, the public expects officials to vote against candidates whose views differ from their own.

Court Permits Equal Protection Challenge to Tobacco Ordinance That Treats Drug Stores and Supermarkets Differently

In Walgreen Co. v. City and County of San Francisco, published June 8, 2010, the First DCA, Division 3, ruled that a pharmacy stated a cause of action under the state and federal Equal Protection clauses against an ordinance that forbade tobacco product sales in drug stores, but not supermarkets that included pharmacies. Assuming the facts alleged in the complaint were true, the court found no rational reason to differentiate between the two types of businesses.

Federal Special Education Statutes Do Not Preempt California Statutes Forbidding Non-Nurse Voluntary School Personnel from Giving Insulin Injections

In American Nurses Assoc. v. O’Connell, published June 8, 2010, the Third District Court of Appeal held that California law does not permit voluntary school personnel who are not licensed nurses to administer insulin injections to diabetic students who require the injections under a 504 plan or an Individualized Education Plan. The court analyzed California statutes, and concluded that they do not allow non-licensed personnel to perform this nursing task. It further concluded that neither Section 504 nor the IDEA -- the primary federal statutory schemes governing education of students with disabilities -- preempt the California statutes, absent a showing that enforcement of the California law is thwarting the operation of the federal statutes.