Government Liability Update

Names of Police Officers Involved in Shootings May Be Sought under the California Public Records Act

In Long Beach Police Officers Association v. City of Long Beach (Los Angeles Times), published May 29, 2014, the California Supreme Court affirmed a trial court's denial of a police union's request for an injunction preventing release under the California Public Records Act of names of Long Beach police officers involved in shootings over a five-year period.  Reviewing the history of cases addressing release of officer information under the Act, the court concluded that the names of officers involved in shootings are not "personnel records" under the Pitchess statutes, and do not fall under any of the exceptions to the Act.  It addressed the concern that releasing officer names could result in retaliation as too generalized to bar release of any officer names.  It noted that the trial court's denial of injunctive relief was without prejudice to any later evidentiary showing that disclosing a particular officer's name would endanger that officer or the officer's family.

Officers May Be Held Liable for Forced Anal Search of Arrestee Who Hid Baggie of Cocaine

In George v. Edholm, published May 28, 2014, the 9th Circuit Court of Appeals reversed in part and affirmed in part summary judgment granted to two police officers.  While the plaintiff arrestee was being strip-searched, he allegedly faked a seizure and inserted a baggie of cocaine base into his rectum.  Paramedics took the arrestee to a hospital, where a doctor forceably removed the baggie with forceps, sedated the arrestee, and administered laxative to him.  The experience allegedly caused him pain and bleeding.  There was conflicting evidence on whether the officers told the doctor that the plaintiff had swallowed cocaine, and on the danger of the baggie breaking.  The plaintiff sued the officers under the 4th Amendment, for an unreasonable seizure, and under the 14th Amendment, for violating his due process right to refuse medical treatment.

The 9th Circuit held that the district court erred in granting summary judgment on the 4th amendment cause of action.  Because there was evidence the doctor acted at the request of police and with their assistance, there was an issue of fact on whether the doctor's actions could be imputed to the police officers for 42 U.S.C. section 1983 purposes.  There were also triable issues of fact over whether the search was unreasonable in light of its highly intrusive nature, the conflicting evidence on whether the baggie would rupture, the possibility of obtaining the evidence by simply monitoring bowel movements, and the conflicting evidence of whether the officers gave false information to the hospital.  In light of the clearly-established law governing intrusive bodily examinations, the officers were not entitled to summary judgment based on qualified immunity.  The officers were, however, entitled to summary adjudication of the 14th Amendment cause of action.  Because there was no established law finding a 14th Amendment violation under circumstances like those here. the officers' conduct did not violate clearly-established rights.

Secret Service Agents Entitled to Qualified Immunity for Moving Protesters for Security Reasons

In Wood v. Moss, published May 27, 2014, the U.S. Supreme Court reversed a 9th Circuit decision allowing protesters to pursue a Bivens action against Secret Service agents who allegedly violated the protesters' 1st Amendment rights.  The protesters and supporters had obtained permission to assemble along the route of the president as he traveled to a cottage in Oregon where he would spend the night.  The president made a last-minute decision to dine on an inn's open-air patio.  The protesters moved to within sight of the patio, while the supporters remained along the route, separated from the patio by a two-story building.  The protesters were within weapons' range of the patio.  The Secret Service had local police move the protesters farther away.  As a result, the protesters were not within sight of the president when he moved on in the motorcade, while the supporters were within his sight.  The protesters alleged that the Secret Service committed viewpoint discrimination.

The Supreme Court unanimously ruled that the agents were entitled to qualified immunity.  In light of the overwhelming importance in protecting the President, the officers were entitled to immunity unless it should have been clear to them that the security perimeter they established violated the 1st Amendment.  No decision would have alerted the agents that they had a 1st Amendment obligation to ensure that groups with different viewpoints were at comparable locations at all times.  So long as there was a security rationale for the agents' actions, they were entitled to qualified immunity.  Since there was a security rationale for moving the protestors out of weapons' range, while the supporters were already out of range, the agents were entitled to immunity.

 

Officers Do Not Violate the Fourth Amendment by Shooting at Stopped Driver Attempting to Escape, or by Shooting 15 Shots

In Plumhoff v. Rickard, published May 27, 2014, the U.S. Supreme Court unanimously reversed a Sixth Circuit decision holding that police officers were not entitled to summary judgment against the 4th Amendment claim of a driver who died in a confrontation with the officers.  The driver, with a passenger in his car, led police on a dangerous five-minute high-speed chase.  He stopped when he crashed into one of the chasing cruisers.  As police pounded on the passenger-side window, the driver revved the engine.  One of the officers fired three shots into the car.  The driver reversed, spun around, and drove off.  Two more officers fired 12 shots toward the car.  The driver lost control and crashed.  Both the driver and passenger died from a combination of gunshots and crash injuries.  The lower court held that the officers violated the driver's 4th Amendment rights, and were not entitled to qualified immunity.

The Supreme Court held that the danger posed to the public by the driver -- including when he was trying to and did flee in his car -- justified the use of lethal force by the police.  Once the officers were justified in using force, the number of shots did not alter the justification; the officers were entitled to keep shooting until the threat was ended.  The presence of the passenger did not change that analysis, since the constitutional rights at stake were the driver's, not the passenger's.  Fourth Amendment rights may not be vicariously asserted.  Even if the officers' acts had violated the 4th amendment, there was no clearly-established law at the time of the incident (1999) that would have established that what the officers were doing was violating the driver's constitutional rights.

Lawsuits Alleging Intentional Misconduct by Public Officials Are Subject to the Government Claims Act

In Gong v. City of Rosemead, published May 20, 2014, the Second District Court of Appeal, Division Five, affirmed dismissal after demurrer of a lawsuit against a city for the alleged intentional misconduct of the city's former mayor.  The plaintiff, a developer, alleged that the mayor extracted thousands of dollars in "loans" from the developer without repayment, retaliated against her by preventing approval of her project when she refused to pay more and refused his sexual overtures, assaulted her, and threatened her life.  The basis for the demurrer was that the timely claims for damages that the plaintiff submitted concerned only delays on and failure to approve the development project.  They did not fairly reflect the allegations of intentional misconduct that formed the basis for the lawsuit.

The plaintiff argued that Government Code section 815.3 exempts from the Government Claims Act lawsuits alleging intentional misconduct by elected officials.  The court rejected this interpretation.  It ruled that the statute merely requires that plaintiffs look first to an elected official defendant found liable for intentional misconduct to satisfy the judgment against the official, and only afterward look to the entity for additional compensation.  Lawsuits alleging intentional misconduct are subject to the Government Claims Act's procedural requirements and immunities.  The court also ruled that the plaintiff's lawsuit against the public entity for promissory estoppel in regard to the development failed, because Government Code section 818.4 immunizes public entities from liability regarding discretionary permitting decisions.

Ninth Circuit Rules California Law Does Not Limit Section 1983 Damages for Pre-Death Pain and Suffering

In Chaudhry v. City of Los Angeles, published May 19, 2014, the 9th Circuit Court of Appeals reversed in part and affirmed in part judgment (following dismissals, summary judgments, and a jury trial) for and against various city and county defendants arising out of the police shooting  of a mentally ill man accused of attacking the police with a knife, the man's subsequent death, and alleged delay of the coroner's office in locating the man's family. 

When the excessive force claims against the police defendants went to trial, the court barred the decedent's estate from seeking damages for his pre-death pain and suffering, holding that California's survival statute (CCP 377.34) barred recovery of such damages under 42 U.S.C. section 1983. The federal district courts in California were divided on the question of whether section 377.34 applied to section 1983 damages.  The 9th Circuit resolved the split by ruling that section 377.34 does not limit section 1983 damages when the death is alleged to have been caused by violation of federal law.  State law limits section 1983 damages only if it is not incompatible with section 1983's purposes.  The 9th Circuit concluded that the survival statute limited recovery of damages for police shooting victims too severely to be compatible with section 1983.  (California's courts hold otherwise in regard to section 1983 suits tried in state court.)

The 9th Circuit also reversed several other district court rulings in the case.  It reversed dismissal of the plaintiffs' Civil Code section 52.1 Bane Act claim under California state law, holding that the claim was not duplicative of the section 1983 claim because an attorney fee multiplier for contingency risk was available under the state law claim and not the federal claim.  It reversed dismissal of the decedent's parent's due process claim under section 1983 for deprivation of their liberty interest in their son's companionship.  It rejected the district court's holding that parents have no liberty interest in an adult child's companionship.  It also reversed a ruling that the parents could not sue the coroner's office for delay in contacting them, because the facts raised a triable issue over whether the coroner's investigators had been reasonable in conducting a search for survivors as required by state law.  It also reversed and remanded the attorney fee calculation, which awarded the plaintiffs a fraction of what they sought.

Officers Not Entitled to Qualified Immunity for Holding Driver at Gunpoint Based on Automatic License Plate Reader

In Green v. City and County of San Francisco, published May 12, 2014, the 9th Circuit Court of Appeals reversed summary judgment granted to the defendant police officers and agency arising out of an incident in which a woman was mistakenly pulled over and held at gunpoint by officers on suspicion of driving a stolen vehicle.  An officer's automatic license plate reader misread a digit on the plaintiff's car, and the plate came back as one belonging to a stolen vehicle that was a different make, model, color, and type of vehicle than the plaintiff's.  The officer could not read the actual license plate.  Because the officer was busy, he radioed dispatch with the mistaken number and the make and model of the plaintiff's car.  Another officer knew about the license plate radioed in, that it belonged to a grey truck, and that the first officer had read it on a dark Lexus car.  The second officer saw the plaintiff's car, read the first three digits on the plate, matched them to the report, followed the car until backup arrived, and then executed a "high risk" stop of the car.  This involved four to six officers ordering plaintiff out of her car at gunpoint, handcuffing her, and searching her.  The district court found that the officers make a reasonable mistake, and had used force appropriate for an investigatory stop; and that because the officers had not violated the plaintiff's rights, the agency was entitled to summary judgment as well.

The Ninth Circuit ruled that material issues of fact defeated summary judgment.  Whether the initial officer was reasonable in reporting the license plate hit without visually confirming the license plate number, and whether the second officer was reasonable in relying on the message without visually confirming the entire license plate number (or matching the vehicle to the stolen-vehicle report) were issues of fact that defeated summary judgment on violation of the plaintiff's Fourth Amendment and California law rights.  There were also triable issues of fact on whether plaintiff's detention was a de facto arrest (requiring probable cause rather than merely reasonable suspicion) and whether the officers used excessive force (because handcuffing and holding a person at gunpoint are generally excessive for stops based only on reasonable suspicion, absent circumstances indicating danger to the officers or others).  Viewing the facts in the light most favorable to the plaintiff, there were issues of fact that defeated summary judgment based on qualified immunity. The issues of fact on the officers' liability defeated summary judgment for the agency.

Failure to Timely Notify Claimant of Lack of Filing Fee for Claim Waives Defect

In Sykora v. State Department of State Hospitals, published May 6, 2014, the Second District Court of Appeal, Division 6, reversed a judgment on the pleadings that was based on the plaintiff's purported failure to comply with the claim-presentation requirements in the Government Claims Act.  The claimant's attorney presented a timely claim for medical malpractice to the Victim Compensation and Government Claims Board, by mail. The attorney neglected to include the $25 filing fee required under Government Code section 905.2, subdivision (c), for claims against the state.  The Board stamped the claim "received."  It did not respond to the claim.  The plaintiff filed suit.  Nearly two years later, the defendant Department moved for judgment on the pleadings, on the grounds that the filing fee was omitted, and the claim was therefore purportedly not accepted and was not timely.  The trial court granted the motion on the ground that the claim was inadvertantly filed without the fee.  It found that the Department was not required to notify plaintiff's counsel of the deficiency.

The court of appeal rejected the trial court's finding.  It ruled that if a claimant omits a required filing fee for a claim, the entity must notify the claimant of this deficiency with a timely Notice of Insufficiency under Government Code section 910.8.  Because it did not do so, under Government Code section 911 the Department waived any defense based on the omission of the fee.  Section 911 does not merely extend to the contents of the claim.  In addition, because the Department did not serve a notice that the claim was untimely, it waived any argument that the lack of a fee resulted in the claim not being timely filed.

Court Ruling on Qualified Immunity Summary Judgment May Not Resolve Factual Disputes in Favor of Moving Party

In Tolan v. Cotton, published May 5, 2014, the U.S. Supreme Court unanimously reversed summary judgment in favor of a police officer who shot an unarmed man on his parents' front porch.  The man was being held at gunpoint by an officer who mistakenly believed the man had exited a stolen vehicle.  Another officer arrived as backup.  The man's parents told police that the vehicle belonged to them.  At one point, the mother protested being ordered to stand against a garage door.  The tone in which she spoke was disputed.  An officer used force on her.  How much force used was disputed.  The suspect said, "Get your f__ing hands off my mom."  Whether he was standing or on his knees, and the force with which he said these words, was disputed.  The defendant officer, without warning, fired three shots at the man, who survived with serious injuries.  The district court found the officer was entitled to qualified immunity, because under the facts a reasonable officer could have believed he was in danger from the man.  The Fifth Circuit affirmed.

The Supreme Court ruled that the district court had erred because it could only have found qualified immunity if it resolved all factual issues in the light most favorable to the moving defendant.  Instead, on summary judgment, all evidence must be viewed in the light most favorable to the opposing party; and if there remain material issues of fact, summary judgment must be denied.