Government Liability Update

Police Officers Entitled to Discretionary Immunity for Using Tear Gas in Attempt to Make Arrest

In Conway v. County of Tuolumne, published November 24, 2014, the Fifth District Court of Appeal affirmed summary judgment in favor of the defendant county in a lawsuit for negligence and nuisance brought by a homeowner whose home was allegedly rendered uninhabitable by a sheriff's deputy's tear gas canisters.  The plaintiff called deputies when the plaintiff's adult son, a felon forbidden to own firearms, fired a .357 magnum at the plaintiff's front door.  The parties disputed whether the plaintiff gave deputies permission to search plaintiff's mobile home, or whether the plaintiff told deputies that he believed his son was still in the home.  A SWAT team and a negotiation team attempted to contact the son in the house, with no response.  The responding sergeant obtained permission from the SWAT team commander and the acting commander to throw two tear gas canisters into the home.  The SWAT team then broke down the door and found no one inside.  The son was arrested elsewhere.  The trial court granted summary judgment based on Government Code section 820.2 immunity for discretionary acts.

The appellate court analyzed the history of applying section 820.2 to police officers' acts.  Section 820.2 immunizes discretionary "policy" type acts, but not negligent ministerial acts done to carry out discretionary decisions.  The court decided that acts performed in carrying out an arrest may be immunized under section 820.2, if they involve sufficient judgment and discretion.  The decision to use tear gas on a suspect believed to be holed up in a building involves sufficient judgment to warrant discretionary immunity.

Ninth Circuit Limits Liability for Arrest Under Facially Correct Warrant of Incorrect Person

In Gant v. County of Los Angeles, published November 24, 2014, the 9th Circuit affirmed in part and reversed in part summary judgment granted to multiple city and county defendants in a lawsuit brought by two arrestees who alleged they were arrested and held under arrest warrants issued for suspects other than the persons actually arrested.  In one case, plaintiff Gant had been arrested five to seven times on warrants issued for his non-identical twin brother who had a similar name.  He was arrested even though he showed the arresting officer a judicial clearance form verifying that a warrant for his brother was not for him.  In the booking process, a Live Scan report based on the arrestee's fingerprints showed he had a different Criminal Investigation and Identification number than the person on the warrant.  He was kept in jail overnight and released after a court appearance.  In the other case, plaintiff Ventura was arrested under a warrant for a man with the same name but a different height and weight.  He alleged that the officers coerced him to state that his height was the same as the person in the warrant.  An officer also incorrectly stated that the warrant had the arrestee's Social Security number.  He was held in jail for six days and then ordered released after a court appearance.  The Live Scan for him did not come back until weeks after his arrest.

Gant's 4th Amendment claim against the arresting officers was properly denied, because the arrest was according to a warrant that had sufficient identifying information (the CII number) to identify the actual arrestee, eventually resulting in his release.  Ventura's 4th Amendment claim against his arresting agency was properly denied, because he failed to present evidence of a policy and practice of arresting individuals who did not physically match the arrest warrant's description.

In regard to the 14th Amendment claims, the court noted that holding a person after an arrest under a valid warrant may ripen over time into a due process violation if the defendant knew or should have known that the plaintiff was entitled to release.  Gant's claim was properly denied because a jailor who holds an arrestee for only a brief time has no duty to investigate that the arrestee is the person identified in the warrant, and Gant did not notify the jailors that he had the judicial clearance form.  For Ventura, summary judgment should have been denied, because there was a triable issue of fact on whether he stated to the jailors that he was not the person identified in the warrant.  

The court also reversed summary judgment on Ventura's Bane Act (Civil Code 52.1) cause of action against his arresting officers.  A Bane Act  claim requires a showing of coercion beyond that inherent in an arrest.  The officers' alleged acts of coercing Ventura into misstating his height, and the act of incorrectly telling him the warrant included his Social Security number, were sufficient to overcome summary judgment.

 

 

Where City Prosecutes Code Enforcement Proceedings against Plaintiffs' Properties, Plaintiffs' Lawsuit Attacking the Enforcement on Insufficient Grounds Is Subject to Anti-SLAPP Order

In Squires v. City of Eureka, ordered published November 14, 2014, the First District Court of Appeal, Division 2, affirmed an order striking the plaintiffs' 42 U.S.C. section 1983 lawsuit attacking the city for allegedly discriminating against the landowners, as a "class of one," in enforcing code actions against the many properties the plaintiffs owned in the city.  The appellate court agreed with the trial court that the code enforcement was protected action under the Anti-SLAPP law.  The question was therefore whether the plaintiffs could show a sufficient probability of prevailing on their claims.  The declarations they provided failed to show that they could meet the "class of one" criteria.  Stating that other properties worse of than theirs were not being prosecuted did not show unconstitutionally unequal treatment, particularly in the realm of code enforcement which required a high level of discretion.

Officers Entitled to Qualified Immunity for Believing Knocking on Back Door of Corner-Lot House Was Constitutional

In Carroll v. Carman, published November 10, 2014, the U.S. Supreme Court reversed a Third Circuit decision that the defendant police officer was not entitled to qualified immunity in a 42 U.S.C. section 1983 lawsuit alleging the officers violated the Fourth Amendment by entering the back yard of the plaintiffs' house without a warrant.  The house was located on a corner lot.  The officers received a report that a fugitive might have fled to the house.  The officers parked at the far rear of the property, the only place they could find parking.  They saw a sliding glass door in the rear of the house that opened onto a ground-level deck.  The officers believed it looked like an entryway, and approached it to knock on the door.  As the officers approached, one of the plaintiffs opened the door, did not respond to officer questions, and appeared to reach for his waist.  An officer grabbed his arm, and the man fell into the yard.  The other plaintiff came out, informed the officers that the fugitive was not there, and consented to a search.  The plaintiffs sued , and a jury found for the defendant officer.  The Third Circuit reversed, ruling that the "knock and talk" exception to the Fourth Amendment warrant requirement -- permitting officers to approach a door and knock on it, so long as they stay on the portions of the property where the public would expect to go -- did not apply to knocking on the rear door without first trying the front door.  It further ruled that this law was clearly established, and that the officer was therefore not entitled to qualified immunity.

The Supreme Court noted that the rulings of federal and state courts on whether the "knock and talk" rule requires the officer to first try the front or main door are in conflict; and that the only Third Circuit case on the subject did not clearly prohibit what the officer did.  It therefore concluded that the law was not clearly established, and that the officer was entitled to qualified immunity.  It declined to decide the contours of the "knock and talk" rule itself.

Federal Lawsuit Is Not Subject to Summary Judgment for Failure to Identify Legal Theory of Recovery in Complaint

In Johnson v. City of Shelby, published November 10, 2014, the U.S. Supreme Court summarily reversed summary judgment granted to a city in a lawsuit brought by former police officers who challenged their firing on Fourteenth Amendment due process grounds.  The district court granted summary judgment, and the court of appeals affirmed, because the officers did not expressly invoke 42 U.S.C. section 1983 in their complaint.  The Federal Rules of Civil Procedure "do not countenance dismissal of a complaint for imperfect statement of the legal theory supporting the claim asserted."  Since the officers pleaded sufficient facts to inform the city of the factual basis for their complaint, they were required to do no more than stave off threshold dismissal of their case for want of an adequate statement of their claim.  The court ordered that on remand the officers be given leave to amend their complaint to add a citation to 42 U.S.C. section 1983.