Government Liability Update

D.A. Can't Be Held Liable for Failure to Train Based on Single Brady Violation

In Connick v. Thompson, published March 29, 2011, the U.S. Supreme Court held 5-4 that a district attorney could not be held liable under a 42 U.S.C. section 1983 failure-to-train theory based on a deputy prosecutor's single instance of failing to turn potentially exculpatory evidence (a crime lab report stating the perpetrator's blood type, which was different than the suspect's blood type) over to the defense, as required by Brady v. Maryland (1963) 373 U.S. 83.  The defense discovered the report only after the suspect had spent 18 years in prison, including 14 on death row, and a month before the suspect's scheduled execution.

The majority held that because the failure-to-train was governed by a deliberate-indifference standard, the D.A. could be held liable only if the D.A.'s office's policymakers are on actual or constructive notice that a particular omission in their training program is causing their employees to violate citizens' rights; and they make a deliberate choice to retain that program.  Here, the plaintiff failed to show a pattern of failing to turn over this type of evidence based on an omission in the office's training on Brady.  The court noted that past failure-to-train cases had held that a single constitutional violation that revealed an obvious omission in training might support liability.  But, the court held, because lawyers are required to receive legal training, pass a bar exam, remain subject to professional discipline, and often must continue their legal education, policymakers may presume that they know the law concerning Brady well enough that a single omission would not support failure-to-train liability.  The court emphasized that failure-to-train cases are particularly difficult to prove.

The dissent opined that the evidence showed a pattern of offenses that should have put the D.A. on notice of an omission in training prosecutors concerning their Brady obligations.

Statute of Limitations for Facial Challenge to Rent Control Ordinance Commences upon Ordinance's Adoption

In Colony Cove Properties v. City of Carson, published March 28, 2011, the Ninth Circuit Court of Appeals upheld a district court's dismissal of a mobilehome park's facial and as-applied challenges to the city's 1979 mobilehome park rent control ordinance, amended in 2006.  The statute of limitations for a facial regulatory takings challenge to the ordinance (currently two years) began running when the ordinance was adopted in 1979.  A 2006 amendment of the ordinance to add a methodology of calculating fair return (maintenance of net operating income) as a factor to consider in reviewing rent increase requests was not a sufficiently substantive change to the ordinance to revive the statute of limitations.  Therefore, the 2008 facial challenge was time-barred. 

The as-applied challenge to the ordinance, concerning the park's rejected petition for a rent increase, was barred because it was unripe.  To challenge the ordinance as a regulatory taking, the park had to first petition for administrative mandamus in state court, seeking a Kavanau adjustment of future rents to obtain just compensation.  The park had not done so.  It failed to show such a petition would be futile on the ground that the park was going to be subdivided into tenant-owned parcels.  The subdivision would only provide the ground for a state court inverse condemnation action, which the park would have to exhaust before bringing a federal challenge.

Sheriff Entitled to Qualified Immunity for Retaliating Against Subordinate Who Is in Policymaking Position; But Not for Retaliation after the Subordinate's Demotion

The First Amendment, as interpreted by the U.S. Supreme Court, permits an elected official to retaliate against a subordinate via demotion, firing, or other employment sanctions for the subordinate's speech against the official, provided the subordinate was in a policymaking position.  In Bardzik v. County of Orange, published March 28, 2011, the Ninth Circuit concluded that during the time a county sheriff's lieutenant was a reserve division commander, the lieutenant was a policymaker; and the sheriff was therefore entitled to qualified immunity for allegedly retaliating against the lieutenant for supporting the sheriff's opponent in an election and seeking to undermine the sheriff's policies.  But the sheriff was not entitled to qualified immunity for allegedly retaliating against the lieutenant once the lieutenant was demoted out of his policymaking position.

Special Education Child Entitled to 100% Reimbursement for Needed Supplemental Education, Even if Private School Does Not Fulfill All of Child's Needs

Under the Individuals with Disabilities in Education Act, if a public school fails to provide a special-education student with a free and appropriate public education, and a private placement provides that education, the child is entitled to reimbursement for the private education.  In C.B. v. Garden Grove Unified School District, published March 28, 2011, the Ninth Circuit held that although a hearing officer can reduce the amount reimbursed based on equitable factors (such as the reasonableness of the charges), the officer cannot award less than 100% reimbursement on the ground that the private school does not provide all of the educational services the student needs.

Landowner Intentionally Singled Out for Different Treatment on Permit Application, without Rational Basis for Difference, May State "Class of One" Equal Protection Claim

In Gerhart v. Lake County Montana, published March 18, 2011, the Ninth Circuit reversed summary judgment granted to road commissioners in a Montana County in a lawsuit that accused the commissioners of violation of the plaintiff's equal-protection rights.  The plaintiff built an approach on his land so that he could reach a roadway.  Ten of his neighbors had built approaches to the same roadway without permits.  The county seldom denied permits for approaches; and would usually work with the landowner before doing so.  The County denied the plaintiff's permit application, without working with him, and without explanation.  The plaintiff presented evidence that some of the decisionmakers had personal disagreements with him.

The Ninth Circuit affirmed the summary judgment granted to the County on the plaintiff's due process claims.  Due process requires that the plaintiff have a protected property interest, which means that the plaintiff has a right, rather than a mere expectation, of obtaining what he seeks.  Montana law did not sufficiently constrain the discretion of local commissioners to create a property interest in the permit the plaintiff sought.

The plaintiff's equal protection claim against the commisioners was a "class of one" claim.  There are three elements to a "class of one" equal protection cause of action. 

The first is that he was treated differently than other similarly situated individuals.  The plaintiff submitted sufficient evidence of differential treatment , both in being required to apply for a permit and in the processing of his permit, to create a triable issue of fact on this element. 

The second is that the commissioners intended to treat him differently than other applicants.  This prong does not require proof of ill will. The plaintiff's evidence that the commissioners singled him out due to complaints about him, and his past experiences with the county, raised a triable factual issue on this element. 

The final element is lack of rational basis.  The court clarified that the rational basis must be for the differential treatment, not just for the government action challenged (here, the permit denial).  The commissioners stated they denied the permit because of an unconfirmed belief the plaintiff had access to his property, which the plaintiff denied.  They also stated they had safety concerns about the approach, although ten neighbors had similar approaches.  The plaintiff raised an issue of fact about this element as well.

The court ruled that the commissioners were not entitled to summary judgment based on qualified immunity, since when the decision was made (in 2008) the class of one theory of equal protection was well established.

Federal Law Protecting Religious Rights of Prisoners May Apply to Courthouse Holding Facility

In Khatib v. County of Orange, published March 15, 2011, the Ninth Circuit, sittin en banc, ruled that the holding facility at the Orange County Santa Ana Courthouse is an "institution" within the meaning of the Religious Land Use and Institutionalized Persons Act of 2000, which protects the religious rights of "institutionalized" persons.  The court reversed the district court's dismissal of a suit against the county by a Muslim woman allegedly ordered to remove her hijab while she was held in custody at the courthouse.  The court emphasized that its ruling applied only to this courthouse, and that other courthouses and detention facilities have unique characteristics that require individualized review.  Further, the court declined to consider whether the accommodations the plaintiff requested were impractical for the facility; that would be determined at the summary judgment stage.

 

Protest of Military Funeral Protected by First Amendment, Despite Outrageousness of Message

In Snyder v. Phelps, published March 2, 2011, the U.S. Supreme Court held that the First Amendment protected a religious group that held a protest directed at the funeral of an Iraq War veteran.  The group has for decades asserted an anti-United States, anti-Military message.  On the day of the funeral, it held a protest on public land, adjoining a public street, carrying anti-U.S., anti-Military, anti-catholic, and anti-homosexual signs, including placards stating, "You're Going to Hell."  The demonstration was quiet and peaceful, and complied with applicable time, place, and manner restrictions.  Only the tops of the signs were visible from the funeral.  The father of the veteran later saw the signs in the media.  They caused him extreme emotional pain.  The majority held that because the protest was speech related to public, rather than private, matters, it was protected by the First Amendment from tort liability for intentional infliction of emotional distress.  The outrageousness of the message, according to the majority, was not ground for removing First Amendment protection. The majority stated that its holding was "narrow."  A dissent argued that the speech was a private attack on the veteran presented in the guise of public speech.