Government Liability Update

City May Regulate Ham Radio Antenna on Private Property Based on Aesthetics, but Not Based on Radio Frequency Interference

In Zubarau v. City of Palmdale, published January 27, 2011, the 2nd District Court of Appeal addressed a trial court writ of mandate that reversed a city's order that a homeowner take down a tall ham radio antenna on his property.  The court reversed the trial court' s ruling that the city's takedown order was not supported by substantial evidence; the city's aesthetic and safety grounds for ordering the takedown were supported by substantial evidence.  The court also reversed the trial court's ruling that the city's ordinance concerning antenna height was unenforceable based on vagueness.  The appellate court further ruled that the city could not regulate the antenna based on radio frequency interference, since that area has been fully occupied by federal law. 

In Federal Court, Denial of Summary Judgment Motion Based on Qualified Immunity May Not Be Appealed After Jury Trial

In Ortiz v. Jordan, published January 24, 2011, the U.S. Supreme Court addressed the conflict in the federal circuit courts on whether a party may appeal a denial of summary judgment based on qualified after a district court has conducted a full trial on the merits.  In a federal civil rights action, denial of summary judgment based on qualified immunity is immediately appealable if it poses a purely legal issue, such as whether the law on a subject was clearly established when the defendant acted.  It is not immediately appealable if summary judgment was denied based on triable issues of fact.

The court unanimously ruled that when a qualified immunity summary judgment motion is denied based on triable issues of fact, the resulting judgment cannot be attacked on the ground that the summary judgment motion should have been granted.  The defendant can raise qualified immunity at trial, and then appeal the judgment on qualified immunity grounds; but the qualified immunity issue will then be viewed in light of the evidence produced at trial. 

The appellate court cannot review the denial of summary judgment on the ground that the plaintiff failed to prove her case.  The defendant does not preserve that issue for appeal unless the defendant moves for judgment notwithstanding the verdict under FRCP 50(b).

 

Defendant Awarded Fees under Federal Civil Rights Statute May Recover only Fees Incurred Because of Frivolous Claims

In Harris v. Maricopa County Superior Court, published January 20, 2011, the Ninth Circuit reversed an award of attorney fees to a prevailing defendant under 42 U.S.C. section 1988 and Arizona state law.  The court held that the means of calculating a fee award are reviewed de novo. Defendants are entitled to fee awards under section 1988 only if the plaintiff's claims are frivolous, unreasonable, and without foundation; and only fees attributable to the frivolous claims are recoverable.  In this case, in which the court held some of the plaintiff's claims frivolous and others reasonable, the district court apportioned the fees defendants incurred for all claims evenly among the claims, and awarded those apportioned to the frivolous claims.  The Ninth Circuit majority held that doing so was error.  The court may award the defendant only the fees that defendants would not have incurred but for the frivolous claims.  The defendant has the burden of proving such fees.  If the defendant fails to carry the burden as to a particular fee, the defendant does not receive that fee.

The dissent opines that this burden of proof makes the already hard to obtain award of defense fees under 42 U.S.C. section 1988 impermissibly difficult.  The dissenting judge argues that the standard of review should be abuse of discretion.  He also points out that the majority's position conflicts with that of other circuits.

Denial of Summary Judgment Based on California Government Code Immunity Is Immediately Appealable in Federal Court

In Liberal v. Estrada, published January 19, 2011, the Ninth Circuit reviewed the defendant police officers' appeal from the district court's denial of their motion for summary judgment in a suit brought under 42 U.S.C. section 1983 and California state law causes of action.  The suit arose out of an incident in which the officers detained the driver and passengers in a car for 45 minutes, searched the car, and allegedly used force against the driver.  The ground for the detention and search was that the car had tinted side windows, in violation of California law.  The driver, however, declared that the window on the side the police officers saw was rolled down.

The case addressed the question of whether denial of a summary judgment motion based on California Government Code section 820.2 (discretionary immunity) was immediately appealable.  The majority opinion concluded that it was.  Under federal procedural law, denial of summary judgment based on a state law immunity from suit is immediately appealable.  If the immunity is from liability, rather than suit, it is not.  The majority ruled that section 820.2 is an immunity from suit.  Judge Tashima, in dissent, opined that section 820.2 was merely an immunity from liability.

The court also concluded that the district court correctly denied summary judgment based on section 820.2, because the immunity did not apply to causes of action for false arrest and imprisonment.  

The court also upheld the district court's denial of summary judgment as to the section 1983 causes of action on the ground of qualified immunity.  Issues of fact prevented the district court from concluding that the officers did not violate clearly-established law concerning the grounds for and length of detention, or the appropriate use of force.

Evasive Behavior and Rumors of Planned School Shooting Do Not Entitle Officers to Enter Home without Probable Cause, Warrant, or Exigent Circumstances

In Huff v. City of Burbank, published January 11, 2011, a split panel of the Ninth Circuit reversed a bench trial decision in favor of police officers who entered the plaintiffs' house without a warrant.  The officers went to the house to investigate rumors that a high school student member of the plaintiff family had written a letter threatening a school shooting.  There was no evidence the letter existed.  The family initially refused to answer the phone in the house.  When the officers called the mother on her cell phone, she answered, but hung up after the officers asked about her son.  She and the son stepped out on the porch.  The officers asked her if there were any guns in the house.  She replied that she had to talk to her husband.  She and her son entered the house.  Two officers entered with them, without consent.  Two other officers assumed the first two had permission to enter, and entered themselves.  The officers stayed in the house ten minutes without searching or arresting anyone.

The majority held that the officers had violated the family's 4th Amendment rights by entering the house without probable cause and without a warrant or exigent circumstances.  They concluded the mother's evasive behavior did not give probable cause or create an emergency.  The first two officers had no qualified immunity, because the law was clear in 2007 that entering a house required probable cause and a warrant or exigent circumstances.  The other two were entitled to qualified immunity for mistakenly believing the first two had the family's permission to enter.

The dissenting judge opined that all of the officers were entitled to qualified immunity.

Conviction under Penal Code section 148 Does Not Bar Excessive Force Claim if the Charge and Claim Involve Different Actions

In Hooper v. County of San Diego, published January 4, 2011, the Ninth Circuit held that an arrestee who was allegedly attacked by a police dog after she resisted arrest could sue the officer for alleged use of excessive force.  Heck v. Humphrey bars a person lawfully convicted of a charge from suing police under 42 USC section 1983 when success on the 1983 claim might undermine the charge on which the plaintiff was convicted.  Since the plaintiff's resistance to arrest took place before the use of force, the court ruled, a finding that the force was unlawful would not undermine the legality of the arrest and conviction.

Absent Emergency, Cross-Gender Search of Stripped Jail Inmate Violates Fourth Amendment

In Byrd v. Maricopa County Sheriff's Department, published January 5, 2011, the Ninth Circuit, sittin en banc, held that a female cadet's search of a male jail inmate who was clad only in thin boxer shorts violated the inmate's 4th Amendment rights.  The cadet was clad in black pants and a t-shirt with her last name on her back, and was otherwise unidentified.  Officers were present, and one person was videotaping the search.  In conducting the search, the cadet touched and moved the inmate's genitalia and buttocks.  The majority held that under the circumstances the search violated the Fourth Amendment, at least in the absence of an emergency.  The opinion placed importance on the circumstances of the search and general authority holding that cross-gender strip searches involving touching may violate the Fourth Amendment absent emergency.  The dissent argued that the court should defer to jail officials on the need for the search.

The court held that the district court properly rejected the inmate's equal protection and substantive due process claims.