Government Liability Update

In Police Shooting Case, Error to Grant Summary Judgment If Reasonable Jury Could Find Officers' Stories Inconsistent With Circumstantial Evidence

In Cruz v. City of Anaheim, published August 28, 2014, the 9th Circuit reversed summary judgment granted to the defendant city and officers in a police shooting case.  A confidential informant told one of the defendant officers that the decedent was carrying a 9 mm gun in his waistband, that decedent was not going back to prison, and decedent's location.  The officers pulled the decedent over for a broken tail light.  When the officers surrounded his vehicle, he tried to escape, backing into one of the marked cars in the process.  When he stopped, police surrounded his vehicle with weapons drawn.  He openend the door.  Police shouted at him to get on the ground.  According to four officers, they saw him reach for his waistband.  An independent witness could see only the decedent's head and feet at the time.  The officers shot and killed decedent.  Afterward, decedent's body was tangled in and hanging from the seatbelt.  No weapon was in his waistband, but a loaded 9 mm with the safety on was recovered from the passenger seat.

The 9th Circuit agreed that if the decedent reached for his waistband when the officers ordered him out of the car, the officers would be justified in opening fire, whether or not he actually had a gun.  If he did not reach for his waistband, they would not be justified.  Whether summary judgment should be granted therefore came down to whether a reasonable jury could find it more likely than not that the decedent did not reach for his waistband.  Because only the officers saw him reach for the waistband, and decedent could not testify, the court had to carefully examine all the evidence in the record to determine whether the officers' stories were internally consistent and consistent with other known facts, including circumstantial evidence that, if believed, would tend to discredit the officer's story.  Here, that evidence included that decedent did not have a gun in his waistband (raising a question of why he would reach for it); the fact he was tangled in his seatbelt; that one of the officers gave the exact same explanation when shooting another unarmed man earlier under similar circumstances; and that four officers stated they had a line of sight to decedent's hand as he stood between an open car door and an SUV.  Whether the officers were indeed discredited by these facts was an issue for the jury.

First Amendment Establishment Clause Does Not Bar Sectarian Prayers at City Council Meetings

In Town of Greece v. Galloway (2014) __U.S.__, 134 S.Ct. 1811, published May 5, 2014,   the U.S. Supreme Court upheld summary judgment granted for the defendant town in a lawsuit that challenged the prayers delivered at city council meetings. Because most of the houses of worship in the town were Christian, most of the volunteer clergy who delivered the prayers were Christian. Some of the clergy delivered prayers that were sectarian. The plaintiffs alleged that this conduct violated the Establishment Clause of the First Amendment to the United States Constitution.

All of the justices held that the Establishment Clause permits sectarian prayer at city council meetings. The court applied the Establishment Clause test formulated in Marsh v. Chambers (1983) 463 U.S. 783, which held that opening state legislature sessions with a prayer by a chaplin did not violate the Establishment Clause. Under Marsh, the Establishment Clause is interpreted by reference to historical practices and understandings.

Justices Kennedy, Roberts, Alito, Scalia, and Thomas held that the history of the Establishment Clause does not support barring sectarian prayers, and that involving government as supervisors and censors of religious speech would violate the Clause. Absent a pattern of prayers that over time denigrates other faiths, proselytizes, or betrays an impermissible government purpose, the majority held, a challenge based solely on the content of a prayer is unlikely to establish a constitutional violation. The majority further held that so long as the town maintained a policy of nondiscrimination, and made reasonable efforts to permit any faith to provide a prayer, it did not contravene the Establishment Clause by inviting a predominantly Christian set of ministers to deliver prayers. Kennedy, Roberts, and Alito also rejected the argument that the prayers were unduly coercive because citizens coming before the council who did not participate in prayers might feel singled out. If town board members had directed the public to participate in the prayers, singled out dissidents, or indicated that their decisions might be influenced by whether the person prayed, the result might be different. Offense the dissenters might feel did not equate to coercion. A pattern of prayers might show coercion that might violate the Establishment clause.Justices Alito and Scalia wrote separately to emphasize that the Establishment Clause does not call for generic prayers.

JusticesThomas and Scalia wrote separately to opine that the Establishment Clause does not apply to cities; and that in any event the prayers were not coercive in the sense of the prayers that the founding fathers found objectionable.

Justices Breyer, Kagen, Ginsberg, and Sotomayor, dissenting, opined that the prayers in this case were too sectarian, that too little effort was made to locate non-Christian clergy, and that under the circumstances the prayers were coercive.

It is unclear how Town of Greece will be applied in California courts, in light of the California Constitution’s broader provisions guaranteeing “free exercise and enjoyment of religion without discrimination or preference” (art. I, § 4) and prohibiting governmental aid to religion (art. XVI, § 5.) See Sands v. Morongo Unified School Dist. (1991) 53 Cal.3d 863. Rubin v. City of Burbank (2002) 101 Cal.App.4th 1194, which holds that the First Amendment of the U.S. Constitution bars sectarian invocations at city council meetings, seems unlikely to survive the ruling in Town of Greece.

Instructor's Offensive Geographic Reference about Student's Work Does Not State Prima Facie Case for Title VI National Origin Discrimination

In Rashdan v. Geissberger, published August 26, 2014, the 9th Circuit affirmed summary judgment in favor of a university and several of its administrators and instructors in a discrimination case brought under Title VI of the Civil Rights Act of 1964.  The plaintiff was an Egyptian dentist who had enrolled in a dentistry program to obtain credentials to practice in the United States.  Her instructor referred to her clinical work on a patient as "Third World Dentistry."  Another instructor then called her "TW," explaining it stood for "Third World."  She eventually was not recommended for graduation and underwent a remedial quarter of instruction; when that proved unsuccessful, the school offered a plan for an additional remedial quarter, but instead of taking the quarter or appealing, the plaintiff took a leave of absence and filed suit, alleging  discrimination against her national origin in violation of Title VI

The court, joining other circuit courts, held that the same analysis applied in Title VII discrimination suits applied to Title VI national-origin discrimination suits.  Under that analysis, the plaintiff has the burden of stating a prima facie case of discrimination before the burden shifts to the defendant to show a legitimate non-discriminatory reason for its actions.  Here, the evidence, taken in the light most favorable to the plaintiff, did not state a prima facie case for discrimination.  The "Third World Dentistry" comment was offensive, but it was aimed at the plaintiff's work, not her personally.

City Tree That Damages Property May Be a Public Improvement for Inverse Condemnation Purposes, and a Nuisance

In City of Pasadena v. Superior Court (Mercury Casualty Co.), published August 14, 2014, the Second District Court of Appeal, Division 3, declined to grant a writ of mandate setting aside a trial court order denying summary adjudication of causes of action for inverse condemnation and nuisance.  The case arose out of a city tree falling on a house and causing damage.  The homeowner's insurer paid for the damage, and then sued the city for the damage caused by the tree.  The city argued that it could not be held liable for inverse condemnation because undisputed facts established that the tree was not a public improvement.  The appellate court held that the evidence the city presented did not demonstrate that there was no triable issue of fact as to whether the tree was part of a public improvement.  The evidence showed that the tree was part of a public program to enhance residents' and visitors' quality of life by cataloging and maintaining street trees.  Although inverse condemnation must be based on damage caused by a public improvement as deliberately designed and constructed, that is a causation issue; and the city did not seek summary adjudication of the causation element of inverse condemnation.  

The city also argued that it was entitled to summary adjudication of the insurer's nuisance cause of action, because the insurer did not raise an issue of fact on whether the city was negligent.  The court held the city correct that where nuisance arises from the owner's omission to abate a nuisance rather than create it, negligence must be shown.  But the city failed to present sufficient evidence of lack of negligence to shift the burden to the plaintiff to raise a triable issue of fact on negligence.  Although the city presented evidence that it regularly maintained the trees, and that it was one of numerous trees that blew over in the same storm, the city failed to present evidence of the kind of maintainence it was required to perform on the tree to prevent the damage caused.  It had to show the nature and extent of its duty of care to show that it was not negligent.