Government Liability Update

Supreme Court: Monell Limitations Apply to 42 USC 1983 Suits for Non-Monetary Relief

In 1978, the U.S. Supreme Court held in Monell v. New York Dept. of Social Services that municipalities could not be held vicariously liable under 42 U.S.C. section 1983 for their employees' violation of constitutional rights.  Instead, to hold the municipality liable, the plaintiff had to prove that a custom, policy, or practice of the municipality caused the constitutional violation.

Los Angeles County v. Humphries, published November 30, 2010, resolved a split between the circuits on whether Monell applies only to suits for damages. In Humphries, the U.S. Supreme Court  held that Monell's "custom, policy, or practice" requirement applies in section 1983 cases whether the relief sought is monetary or prospective (such as injunctive or declaratory relief).  The high court reversed the Ninth Circuit's decision to the contrary.

 

Update on Bryan v. McPherson: Taser Is Intermediate Use of Force, But Officer Entitled to Qualified Immunity

In December 2009, we reported that in Bryan v. McPherson, the Ninth Circuit ruled that a police officer's use of a taser is an intermediate use of force that must be justified by factors compelling use of that level of force.  Since then, the Ninth Circuit has revised that opinion twice.  The most recent version of the opinion was published on November 30, 2010, as part of a split order denying rehearing en banc.  The current opinion, as did the previous revision, holds that the officer who used the taser is entitled to qualified immunity, because the law concerning taser use was not clearly established in 2005 when the incident took place. 

The concurring and dissenting opinions on the denial of rehearing show that the Ninth Circuit's judges continue to disagree with each other on whether a taser is an intermediate level of force.  Further, the concurring opinion notes that this case discusses only the model of taser used in this case, and that other types of tasers might be treated differently.

When Citizen Makes Credible Threats of Violence Toward City Officials, Free Speech Does Not Bar Injunctive Relief under Workplace Violence Safety Act

In City of San Jose v. Garbett, published November 24, 2010, the Sixth District Court of Appeal concluded that the Workplace Violence Safety Act (Code of Civil Procedure section 527.8) permitted a city to seek injunctions limiting a citizen's access to the mayor and city council after the citizen makes credible threats of violence.  Although the Act states that it does not permit a court to issue an injunction that bars constitutionally-protected speech, the court concluded that if the elements of  section 527.8 are met by a credible threat of violence toward an employee, the speech is not constitutionally protected and may be enjoined.

Judge Who Investigated Suspected Court Employee Misconduct Does Not Violate Due Process by Presiding Over Name-Clearing Hearing

In Eklund v. City of Seattle Municipal Court, published November 24, 2010, the Ninth Circuit reversed a jury's decision that the chief judge of a municipal court violated a court employee's due process rights by investigating allegations of wrongdoing against the plaintiff court employee, writing the employee a letter setting forth accusations, and then presiding over a name-clearing hearing concerning the employee.  The judge's involvement in the investigation and bringing the charges was not enough to prevent him from acting as hearing officer.  When the employee's attorney sought the judge's recusal on those grounds, the judge had no duty to recuse himself.  The judge did have a duty of self-examination for pecuniary or other bias; but there was no evidence of such bias here.  The employee's criticism of the court, but not the judge personally, did not create a conflict of interest absent extreme bias.  The district court should have granted the judge's motion for qualified immunity.

Split Decision on School District Liability for Counselor's Alleged Molestation of Student (Updated)

In C.A. v. Union High School District , published November 5, 2010, the Second District Court of Appeal addressed whether a student allegedly molested by a guidance counselor could state a cause of action against the school district that employed the counselor.

The majority held he could not. Because the counselor would be acting outside the scope of her duties as a matter of law by molesting the student, the district could not be held vicariously liable for her act under Government Code section 815.2(a). And the student could not identify any statute that created direct liability for the District for negligence, negligent hiring, supervision, fraud, battery, or violation of mandatory duty.

In a lengthy dissent, Justice Mallano opined that the District may be held vicariously liable for the negligence of one or more school administrators for negligently hiring, supervising, or retaining the counselor. He emphasized that such negligence would be difficult to prove.

The split in the panel over this issue may result in the California Supreme Court reviewing the decision.

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Update (February 28, 2011):  On February 23, 2011, the California Supreme Court granted review of this case, depublishing the lower court's opinion.