Government Liability Update

Charter City's Restriction on Leasing or Selling City Property for Construction unless Authorized by Voters Is Not Preempted by Telecommunications Act

In Omnipoint v. City of Huntington Beach, published December 11, 2013, the Ninth Circuit Court of Appeals concluded that 47 U.S.C. section 332(c)(7) of the Telecommunications Act of 1996, which restricts regulations of and adjudicative decisions regarding construction of cellphone facilities by states and local governments, did not preempt a California charter city's voter-enacted rule that no structure costing more than $100,000 could be built in a park or beach unless a majority of the electors approved the construction.  The city had approved plaintiff T-Mobile's applications for wireless permits to construct cellphone antennae in two city parks, and entered into site license agreements with T-Mobile to lease it space in each park as well as building permits.  But when the city learned the total construction costs for each antennae would exceed $100,000, the city directed its Building and Safety Department to suspend the building permits until T-Mobile obtained voter approval.  Instead of seeking voter approval, T-Mobile sued the city to enjoin it from complying with the rule.  The district court ordered the city to act on T-Mobile's applications regardless of voter approval.

The Ninth Circuit reversed.  It concluded that section 332(c)(7) preempts local land use authorities' regulations if they violate the statute's requirements, and local authorities adjudications if they do not meet the statute's minimum requirements.  But a rule requiring voter approval of sales or leases of city-owned property for construction is neither a land use regulation nor an adjudication.  Section 332(c)(7) therefore does not preempt it, and the city may enforce the rule.

Prisoner Need Not Present Claim to Sue Independent Contractor, But Must Exhaust Administrative Remedies

In Parthemore v. Col, published December 6, 2013, the Third Appellate District affirmed dismissal of a pro per prisoner's lawsuit against an optometrist who was under contract with the State Department of Corrections when he treated the plaintiff.  The plaintiff alleged the optometrist negligently gave the plaintiff the wrong glasses prescription, causing him to fall and injure himself, and that the optometrist falsified medical records to indicate plaintiff was legally blind, causing plaintiff's transfer to a medical facility.  The prisoner exhausted his administrative remedies as to another contention (that the optometrist refused to schedule him for cataract surgery) but not as to the negligence and fraud causes of action.  The trial court sustained the optometrist's demurrer based on the plaintiff's failure to exhaust administrative remedies.

The appellate court agreed with the plaintiff's contention that the Government Claims Act (and its requirement to present a claim for damages before suing) does not apply to suits against independent contractors.  But it rejected the plaintiff's attempt to analogize that exemption to the requirement to exhaust a prison's administrative remedies.  Prisoners must exhaust their administrative remedies as to a particular contention of independent contractor wrongdoing before suing the contractor.

Because Police Officer's Complaints about Safety Were Part of His Official Duties, Jury Verdict for Him in Retaliation Case Reversed

In Hagen v. City of Eugene, published December 3, 2013, the Ninth Circuit Court of Appeals reversed a jury decision for a police officer who sued his department and his superiors for First Amendment retaliation.  The officer had complained to his superiors about safety concerns arising out of SWAT officers' accidental discharge of firearms.  His superiors allegedly retaliated against him for the complaints.  At trial, the court concluded that the officer spoke on a matter of public concern.  The jury found that the officer had proven that the defendants had deprived him of his First Amendment rights.  The court denied his motions for judgment as a matter of law before and after the verdict.

The Ninth Circuit reversed the jury's implicit finding that the officer spoke as a citizen and not as part of his official duties.  The evidence permitted only the conclusiion that the officer made his repeated internal complaints about departmental safety and officer competency only in his official capacity as an officer, and as part of his official duties.  Under Garcetti v. Ceballos, the First Amendment does not protect such communications.  The district court should therefore have granted judgment as a matter of law.

Police Use of Deadly Force in Response to Suicidal Person Holding Knife Supports Summary Judgment under Fourth Amendment Wrongful Death Claim, But Not California Law Claim

In Hayes v. County of San Diego, published December 2, 2013, a divided Ninth Circuit panel affirmed in part and reversed in part a defense summary judgment granted in a police shooting case.  This decision was a sequel to the California Supreme Court's decision in Hayes v. County of San Diego (2013) 57 Cal.4th 622, in which the Supreme Court answered a question posed to it by the Ninth Circuit about consideration of police conduct before use of force in determining whether officers were negligent in using the amount of force they used.  The case arose out of an incident in which police answered a call about a suicidal man.  They encountered the man in his kitchen.  He had a vacant look in his eyes. His hands were behind his back.  When the officers asked him to show them his hands, he raised his hands, showing a large knife in one hand, and took two steps towards the officers.  Without telling him to stop or to drop his knife, the officers drew their pistols and shot the man.  The officers stated they shot the man without warning him because they did not believe they had time to warn him.

The Ninth Circuit affirmed summary judgment on the decedent's daughter's fourth amendment claim for deprivation of her liberty interest in her father's life.  To assert a due process cause of action for deprivation of liberty, the daughter would have to show that the officers' conduct shocked the conscience.  Because the situation did not give time for deliberation, deliberate indifference would not suffice; she would have to show that the officers acted with a deliberate intent to harm the decedent.  There was no evidence that they acted with that intent.

The majority reversed the summary judgment for the defendants on the California wrongful death cause of action.  The standard for negligent use of excessive force, as articulated by the California Supreme Court, required determining whether a reasonable officer would have acted as the officers did under the circumstances (including their pre-shooting conduct).  Given that there was no indication that the decedent was committing a crime, that the decedent obeyed all of the officers' commands, and that they did not order him to stop or drop the knife, the reasonableness of their conduct was an issue of fact that defeated summary judgment.  A dissenting judge opined that under the circumstances the use of force was reasonable.