Government Liability Update

Intent to Injure Is Not Required for Section 1983 Claim for Fabrication of Evidence Through Coercive Investigative Techniques

In Gantt v. City of Los Angeles, published May 31, 2013, a divided Ninth Circuit panel reversed a defense verdict in a 42 U.S.C. section 1983 case against a city and its police officers, and remanded it for retrial.  The plaintiffs alleged that homicide detectives alleged that defendant police detectives fabricated evidence by exhaustively interrogating a witness who was under the influence of crack, and threatening to charge the witness with murder if he did not provide information.  The trial court instructed the jury that coercive and abusive investigative techniques violate a person's due process rights when they shock the conscience, which the instruction defined as "the conduct of the police officer is intended to injure in some way, unjustified by any government interest."  The instruction gave torture as an example of a coercive and abusive technique.  The instruction then defined deliberate indifference, without connecting it to the due process instruction.  The jury found for defendants.

The majority ruled that the instruction was confusing and misleading.  The jury should have been instructed that intent to injure and deliberate indifference were alternate ways to satisfy the "shocks the conscience" standard.  It also gave only torture as an example of what would shock the conscience.  Under the circumstances, which did not include an escalating situation, either deliberate indifference or an intent to injure would shock the conscience.  Because there was sufficient evidence presented to go to the jury with a deliberate indifference claim, the majority concluded, the error was prejudicial.  The dissenting judge opined that plaintiffs lacked a prima facie case against the officers, and that the error was therefore not prejudicial.

Prison Officials Are Absolutely Immune from Section 1983 Liability For Following Facially-Valid Court Orders

In Engebretson v. Mahoney, published May 30, 2013, the Ninth Circuit affirmed dismissal of a lawsuit by two pro se plaintiffs against a warden and a director of a state department of corrections for allegedly carrying out an illegal sentence imposed on the inmate plaintiff.  The trial court sentenced plaintiff to 20 years in prison, and an additional 30 year sentence.  The court suspended the entire 30-year sentence and ordered that it be served as probation instead.  The plaintiff served 10 years in prison, and upon discharge began serving his 30-year probation.  He successfully challenged the 30-year probation on the ground that state law required that at least five years of the term be served in prison.  Although this error benefited him, he nevertheless complained that the defendants should be held liable for imposing an illegal sentence on him.

The appellate court held that the officials enjoyed absolute immunity from liability under 42 USC section 1983 for carrying out facially-valid court orders, such as the trial court's sentence.  The court reasoned that the immunity is grounded in the common law; that it is consistent with Supreme Court decisions immunizing prison officials performing functions necessary to the judicial process; that it is necessary to free officials from fear of litigation when carrying out their duties; and that it ensures public confidence in the courts.

County's Change in Position on Interpretation of Ordinance after Assurances Found to Be Temporary Regulatory Taking

In Lockaway Storage v. County of Alameda, published May 9, 2013, the First District Court of Appeal, Division 3, upheld a trial court's ruling that the county defendant was liable for a temporary regulatory taking of a business project.  The plaintiff bought property zoned for an alternative conditional use for storage of recreational vehicles and boats.  The county approved a conditional use permit for the property approving that use.  The CUP had to be implemented within three years or terminate.  The plaintiff bought the property eight months into the CUP's term.  The county assured plaintiff that the property could be developed as a storage facility.  A few months later, the county's voters enacted a growth control initiative that prohibited development of a storage facility on the property, but specified it applied to developments that had not received all necessary discretionary county and other approvals and permits before the effective date of the ordinance.  After the measure became effective, the plaintiff continued developing the property.  The county did not issue ministerial permits as the CUP neared its end, and then did not renew the CUP, based on the ordinance.  When the plaintiff sued, the trial court issued a writ of mandate requiring that the county provide the ministerial permits, holding that by its language the ordinance did not apply to the project because the plaintiff had obtained a discretionary permit (the CUP) before the ordinance went into effect.  The plaintiff completed its project. The court then tried the plaintiff's regulatory taking claim.  The court concluded under the Penn Central takings test that the county's application of the ordinance was a temporary regulatory taking, and awarded the plaintiff damages for lost profits and increased construction costs due to the 30-month delay in construction. 

The appellate court affirmed the trial court's decisions.  It concluded that the county's appeal of the writ of mandate was moot, because the county did not apply for a stay of the writ and the project had been completed.  It held that the ordinance could only be interpreted to permit the property's development because the CUP had issued before the ordinance's effective date.  It held that Penn Central's temporary regulatory takings test (based on interference with reasonable investment-backed expectations) rather than the California Supreme Court's ruling in Landgate v. California Coastal Comm., which holds that development delays caused by reasonable errors by local government in interpreting the law are not temporary takings.  The court questioned whether Landgate was still good law, in light of post-Landgate changes in takings law from the U.S. Supreme Court.  It also concluded that Landgate did not apply, because it upheld the trial court's determination that the county's interpretation of the ordinance was not a reasonable error.

The appellate court also upheld the fee award to the plaintiff under Code of Civil Procedure section 1036.  It rejected the county's argument that the court should have segregated the fees expended on the unsuccessful civil rights claim from those expended proving inverse condemnation.  It concluded that the trial court had impliedly found that the work on the civil rights claim was also necessary to the inverse claim. 

District Attorney Acts for County, Not State, in Establishing Policy and Training Concerning Jailhouse Informants

In Goldstein v. City of Long Beach, published May 8, 2013, the Ninth Circuit analyzed whether a California district attorney acts as a policymaker for the state or the county when establishing policy and training related to jailhouse informants, so that the county can be sued under 42 U.S.C. section 1983 for those policies.  The California Supreme Court had ruled that DAs act for the state when prosecuting crimes, preparing to prosecute, and  giving training related to prosecuting crimes.  (Pitts v. County of Kern (1998) 17 Cal.4th 340.)  And the U.S. Supreme Court had ruled that in the Goldstein case, arising out of a false conviction based on information from a jailhouse informant, the district attorney defendant was immune from personal liability for the prosecution.  (Van de Kamp v. Goldstein (2009) 555 U.S. 335.)  Nevertheless, the Ninth Circuit concluded that DAs act as county officers in formulating local administrative policies concerning informants.  It reached the conclusion based on California's trend of categorizing DAs as county officials; supervision of county officials by county boards of supervisors; and countys' obligation to defend and indemnify DAs.  Judge Reinhard, in a concurring opinion, criticized the Pitts decision.

California Laws Governing Medicinal Marijuana Use Do Not Bar Cities and Counties from Barring Marijuana Dispensaries

In City of Riverside v. Inland Empire Patients Health and Wellness Center, Inc., published May 6, 2013, the California Supreme Court held that California's medical marijuana statutes -- the Compassionate Use Act of 1996 and the Medical Marijuana Program -- do not preempt the police power of cities and counties to ban facilities that distribute medical marijuana.  The statutes provide only limited exemptions from state law for medicinal marijuana users, caregivers, and cooperatives.  They do not provide exemption from local law.  Further, there is no indication that the state statutes were intended to occupy the area of medicinal marijuana regulation, or preempt local regulation.

Ordinance Making Non-Disruptive "Insolent" Speech to City Council a Crime Deemed Facially Unconstitutional

In Acosta v. City of Costa Mesa,published May 3, 2013, the Ninth Circuit ruled that a city ordinance making "insolent" speech at city council meetings a misdemeanor was facially unconstitutional.  Although ordinances barring disruptive speech are permissible, the appellate court analyzed the ordinance and determined that it made "insolent" speech punishable even if not disruptive.  Nevertheless, the court affirmed the rest of the judgment in favor of the defendants.  The defendants were entitled to immunity under state and federal law for enforcing an ordinance they reasonably believed to be valid; and the amount of force used to arrest the plaintiff was appropriate in light of his resistance to being arrested.

Placing Members of Different Gangs in Same Cell Alone Is Not in Itself Deliberate Indifference to Risk of Harm; Failure to Give Inmate Rand Notice Harmless Error

In Labatad v. Corrections Corp. of America, published May 1, 2013, the Ninth Circuit Court of Appeals affirmed summary judgment in favor of correctional officials in a suit brought by a prison inmate beaten by his cellmate, a member of a different gang.  Three days before, the plaintiff had had a fight with another member of the gang.  The fight was not gang related, and they shook hands afterward.  Absent other information that placing the two inmates in the same cell posed a risk to the plaintiff, the appellate court ruled, the undisputed facts established that the officials were not liable under the Eighth Amendment for deliberate indifference to risk of harm to the plaintiff.

The Ninth Circuit also ruled that the district court erred in sending the inmate notice of the procedural requirements for summary judgment oppositions after the plaintiff had already filed his opposition.  The court further noted that harmless-error analysis usually does not apply to such errors.  But it found the error harmless here, because the plaintiff's opposition fully complied with the requirements set forth in the notice.