Government Liability Update

Public Conservator Is Absolutely Immune from Liability for Failure to Warn of Conservatee's Violent History

In County of Sacramento v. Superior Court (Purba), published September 26, 2012, the Third District Court of Appeal issued a writ directing a trial court to grant the defendant county summary judgment against a lawsuit alleging the Sacramento County Public Conservator failed to warn a care facility adequately about a conservatee's history of violence.  The lawsuit sought to hold the county liable for the conservatee's subsequent killing of one person and injury of another.  The trial court had ruled that public policy precluded the county from asserting Welfare and Institutions Code section 5358.1's immunity under Government Code section 815.2(b).  Section 5358.1prescribes that a conservator shall not be held civilly liable for any action by a conservatee.  The appellate court held that section 5358.1 absolutely immunized the conservator (and thus the county) from liability for the conservatee's acts, and thus the conservator's alleged negligence leading to those acts.  Any public policy arguments concerning liability were beside the point, because the immunity applies even where liability would otherwise be appropriate.

A False Confession Resulting from Coercive Interrogation of a Suspect without Miranda Warnings May Violate the Fifth Amendment, Not the Fourteenth

In Hall v. City of Los Angeles, filed September 24, 2012, the 9th Circuit affirmed a district court order dismissing the 14th Amendment claim of a plaintiff who alleged his false confession, the product of coercive interrogation without a Miranda warning violated his 14th Amendment due process right against conviction based on falsified evidence.   Devereaux v. Abbey, 263 F.3d 1070, 1076 (9th Cir. 2001) (en banc) held that the 14th Amendment protects criminal defendants from conviction based on falsified evidence.  Devereaux included in that category evidence produced by investigative techniques that were so coercive and abusive that the investigators knew or should have known that those techniques would yield false information.  But the court concluded that this prong of Devereaux applies only to evidence produced through coercive and abusive interviews of third parties.  If the interrogation is of the criminal suspect, the constitutional right implicated is the 5th Amendment right against self-incrimination, not the 14th Amendment.

Two of the judges hearing the case further concluded that the district court erred in failing to permit the plaintiff to amend his complaint to allege a 5th Amendment claim.  The majority ruled that the interests of justice permitted them to remand the complaint for amendment, even though the plaintiff did not attack the denial of the amendment on appeal.  The dissenting judge opined that the district court properly denied leave to amend due to unexplained delay.

To Defeat Motion to Dismiss for Failure to Exhaust Administrative Remedies, Pro Se Prisoner Must Show Administrative Remedies Could Not Be Discovered

In Albino v. Baca, published September 21, 2012, the Ninth Circuit held that a pro se prisoner's subjective unawareness of his jail's administrative remedies did not excuse him from exhausting him before suing the jail, as required by the Prison Litigation Reform Act.  Instead, once the defendant makes a showing in an unenumerated Rule 12(b) motion that administrative remedies were available to the prisoner and the prisoner did not exhaust them (a very low burden to meet), the burden shifts to the plaintiff to show that he was not only subjectively unaware of the administrative remedies, but also unknowable with reasonable effort.  

A dissenting judge agreed with the general holding, but argued that in the subject case the jail had an obligation to notify the prisoner of the administrative remedies after the prisoner made multiple complaints to the jail without invoking the remedies.

Animal Control Ordinances That Involve Exercise of Discretion Do Not Impose Mandatory Duty Liability

In County of Los Angeles v. Superior Court (Faten), published September 20, 2012, The Second District Court of Appeal, Division Eight, issued a writ directing a trial court to enter summary judgment in favor of the defendant county in a case arising out of a dog attack.  In an unincorporated county area, two pit bulls jumped the fence of the residence where they lived and attacked the plaintiff.  There had been several complaints before the accident about pit bulls at the same residence, including complaints that the dogs had jumped fences.  Animal control investigated prior complaints, and euthanized a dog from that house on one occasion.  The plaintiff argued -- and the trial court agreed -- that a county ordinance providing that county animal control shall capture and take into custody any animal kept or maintained in violation of law, along with another ordinance stating that no animal shall be allowed to be a menace to the community, imposed a mandatory duty on the county to capture the dogs before they attacked the plaintiff.  The plaintiff therefore argued that the County could be held liable under Government Code section 815.6 for violation of a mandatory duty.

The appellate court held that, despite the mandatory language in the ordinance, determining what constitutes a menace to the community is an inherently subjective question that requires exercise of discretion.  It is therefore not a mandatory duty for purposes of 815.6.

Pro Se Prisoner Must Be Given Notice of Procedural Rights when Facing Motion to Dismiss for Failure to Exhaust Based on Extrinsic Evidence

In Stratton v. Buck, published September 19, 2012, the Ninth Circuit reversed dismissal of a prisoner's pro se lawsuit against a prison's health care personnel.  The court dismissed the action on a defendant's unenumerated Rule 12(b) motion to dismiss, based on the plaintiff's failure to exhaust his administrative remedies under the Prison Litigation Reform Act.  The motion included a declaration and other evidence extrinsic to the pleadings.  The Ninth Circuit noted that in Rand v. Rowland, 154 F.3d 952 (9th Cir. 1998), it had held that pro se prisoners faced with motions for summary judgment must be given notice, in plain english, of the requirements for responding to summary judgment motions and the consequences of the motion being granted.  It further noted that motions to dismiss based on failure to exhaust resembled summary judgment motions, because each side may submit extrinsic evidence on the issue.  The court therefore held that at the time a defendant moves to dismiss a complaint based on failure to exhaust, if the motion depends on extrinsic evidence, the pro se prisoner plaintiff must be given notice on the requirements for opposing the motion and the consequences of failing to oppose it.  Omission of such a notice will, except in rare circumstances, be prejudicial error.

Police Interference with Ambulance Leaving Crime Scene and Overlong Detention of Witnesses to Crime May Violate Constitutional Rights

In Maxwell v. County of San Diego, published September 13, 2012, a divided Ninth Circuit panel reversed summary judgment in favor of county sheriff's deputies who responded to a shooting.  A sheriff's deputy shot his wife at his parents'-in-law's home.  The wife was initially stable and able to talk. When responding deputies arrived shortly after the shooting, the shooter confessed and was arrested.  An ambulance was going to leave to take the wife to an air ambulance, but deputies delayed its departure for seven minutes during the investigation.  During the trip to the air ambulance, the wife's condition worsened and she died.  The deputies investigating the scene detained the family there for five hours while questioning him.  When the wife's father was told of the wife's death, he disobeyed police orders not to go to the mother to tell her.  The police pepper-sprayed, clubbed, and handcuffed him.  The district court granted the deputies qualified immunity.

The Ninth Circuit majority reversed.  The delay of the ambulance raised triable issues of fact on whether the officers were deliberately indifferent to the wife's constitutional rights by worsening her situation, and thus violated her 14th Amendment due process rights to bodily security.  Her rights were sufficiently established that the officers would not be entitled to qualified immunity.  The deputies' five-hour detention of the family may have violated their 4th Amendment rights, particularly since the shooter had confessed and the crime scene was secured.  The use of pepper spray on a man whose only offense was disobeying a peace officer's order (possibly an unlawful one) raised triable issues about whether the deputies violated his 4th Amendment rights to freedom from excessive force used in arrest.  Finally, the superior officers' inaction at the scene raised triable issues of fact on whether they violated the family's rights, and whether they were entitled to qualified immunity.

Judge Ikuta dissented.  He opined that a seven-minute delay of the ambulance transporting a person who appeared to be stable warranted qualified immunity, as did detention of a family while the officers executed a search warrant of the residence and a brief use of pepper spray on a witness who disobeyed a police command not to talk to a fellow witness.  He further opined that the plaintiffs had not shown that the supervisors committed any act that injured them, or created any policy, practice, or custom that led to their injury.