Government Liability Update

School District's Standing to Raise Issues in IDEA Litigation Limited

In Lake Washington School District v. Office of Superintendent of Public Instruction, published February 22, 2011, the Ninth Circuit joined other circuits in holding that a local educational agency (such as a school district) has no private right of action under the Individuals with Disabilities Education Act to litigate any question, except those raised in a complaint filed on behalf of a special education student.  The court therefore affirmed a district court decision that a school district lacked standing to bring an IDEA action challenging the state's purported systematic practice of granting continuances of due process hearing proceedings without good cause.

Ninth Circuit Renders Split Decision on Whether County Sheriff Can Be Sued, as Individual, for Jail Beating

In Starr v. Baca, published February 11, 2011, a three-judge panel of the Ninth Circuit Court of Appeals rendered a split opinion on whether the pleadings standards set forth in Ashcroft v. Iqbal, 129 S. Ct. 1937 (2009), permitted a suit against a county sheriff (in his individual capacity) under 42 U.S.C. section 1983 for failing to prevent the jail beating in which the plaintiff inmate was injured.  Judge Fletcher's majority opinion holds that Iqbal left previous decisions concerning supervisory liability untouched; and that allegations of (a) numerous incidents in which inmates in the county's jails have been killed or injured because of the sheriff's subordinates, (b) notice to the sheriff, in reports, of systematic problems in the jails causing these incidents, and (c) the sheriff's purported failure to act to protect the inmates stated a cause of action for deliberate indifference.  The majority opinion also criticizes the Supreme Court's decision in Iqbal as inconsistent with prior authority.

Judge Trott, in a strong dissent, contends that Iqbal, which found a supervisor's mere knowledge of subordinates' alleged wrongdoing and purported failure to act insufficient to support a Bivens claim, did not permit this "attempted end run around the prohibition against using the vicarious liability doctrine of respondeat superior to get at the boss."  Judge Trott opined that the complaint had failed to allege the sheriff's personal involvement in wrongdoing, necessary to hold the sheriff individually liable.

In light of the dissent, the decision will likely end up subject to en banc review, U.S. Supreme Court review, or both.

Illegal-Immigrant-Reporting Statutes Do Not Impose Mandatory Duty to Prevent Murders by Illegal Aliens

In Bologna v. City and County of San Francisco, published January 31, 2011, the First District Court of Appeal, Division 3 rejected an argument that the city could be held liable for the decedents' murders by an illegal alien (who was also a member of a gang) because the City had enacted "sanctuary policies" against reporting arrested illegal aliens to federal authorities.  The plaintiffs contended that under Evidence Code section 669 (negligence per se) and Government Code section 815.6 (mandatory duty liability), Health & Safety Code section 11369 and 8 U.S.C. 1373 imposed a duty on the city to report arrested illegal aliens to federal immigration authorities.  The court concluded that neither statute was intended to prevent illegal aliens from committing murder.  Section 11369, which requires arresting agencies to report drug offenders whom they believe to be illegal aliens, was intended to combat the drug trade, not murders.  Section 1373, which bars local governments from restricting public entities or employees from reporting to federal immigration officials, was intended to combat illegal immigration, not murder.  That both statutes might have an incidental benefit in preventing violent crime was not enough.