Government Liability Update

Deference-to-Security Instruction Inappropriate in 8th Amendment Healthcare Case Unless Security Policy Connected with Treatment Claims

In Chess v. Dovey, published June 25, 2015, the 9th Circuit Court of Appeals held that a district court erred in giving the Ninth Circuit Model Jury Instruction for a Prisoner's Claim for Conditions of Confinement/Medical Care; but ruled the error harmless.  The plaintiff, a pro se prisoner, complained that prison medical staff members were deliberately indifferent to his medical care when they made various medication decisions, including denying him methadone.  Although there was evidence at trial that a security policy limited use of methadone in the prison, all of the evidence indicated plaintiff was denied methadone for medical reasons.  The defendants proposed that the Model Jury Instruction be given.  In addition to instructing the jury on the elements of deliberate indifference, it told the jury to give deference to prison officials in the adoption and execution of policies and practices that in their judgment are needed to preserve discipline and maintain security.  The judge expressed misgivings about this instruction, but the pro se prisoner did not object to it.  The jury returned a defense verdict.

The court ruled that it would consider whether the instruction was erroneous despite the lack of objection, since under the circumstances (where the prisoner was pro se and the judge was on notice of the instruction's problems) requiring an objection would be a needless formality.  The court further ruled that the instruction, which applies a standard conditions-of-confinement requirement to defer to security policies, should not apply in medical care cases unless there is evidence that the treatment to which the plaintiff objects was provided pursuant to a security-based policy.  That was not the case here.  But since the medical evidence indicated that the treatment was appropriate, the court affirmed the defense verdict.

To Prevail on Excessive Force Claim, Pretrial Detainee Must Show That Force Used Was Objectively Unreasonable

In Kingsley v. Hendrickson, published June 22, 2015, the U.S. Supreme Court ruled, 5-4, that a pretrial detainee challenging use of force as excessive under the Due Process clause of the 14th Amendment must prove that the force used was objectively unreasonable under the circumstances.  While the detainee must prove that the defendants intended to use the force they used, the detainee need not prove that the defendants subjectively intended to use unreasonable force against the detainee.  Jury instructions stating that the plaintiff had to prove the defendants acted with reckless disregard of the detainee's rights, suggesting a subjective belief by the defendants, were erroneous.

Ordinance Requiring Hotels to Make Registry Available to Police Officers on Demand Facially Unconstitutional

In City of Los Angeles v. Patel, published June 22, 2015, the U.S. Supreme Court ruled, 5-4, that the portion of a City of Los Angeles ordinance that requires hotel operators to make their guest registry available to police officers on demand is facially unconstitutional because it violates the 4th Amendment's limitations on searches and seizures.  The court first ruled that facial attacks for violation of the 4th Amendment are permitted.  Applying that rule to the ordinance, the court concluded that the production requirement violated the 4th amendment because even if construed as an "administrative search" to enforce the ordinance's requirement that identifying information about hotel guests be recorded, rather than a law-enforcement search that requires a warrant, the 4th Amendment requires at the least some opportunity for pre-compliance review before a neutral decisionmaker.  A requirement for an administrative subpoena (with the opportunity to move to quash the subpoena before an administrative law judge) would suffice.  Otherwise, the production requirement could be subject to abuse.  

Prosecutor Did Not Act under Color of State Law When He Made Allegedly Improper Statements on Personal Blog and Twitter Account

In Naffe v. Frey, published June 15, 2015, the 9th Circuit Court of Appeals affirmed a district court decision dismissing the portion of a complaint asserting a claim under 42 U.S.C. section 1983 against a deputy district attorney for allegedly violating the plaintiff's free-speech rights under the 1st Amendment.  The plaintiff and defendant are both well-known conservative political commentators.  The defendant allegedly wrote unfavorable articles about the plaintiff on his blog, and allegedly tweeted harassing and threatening messages about her on his personal Twitter account.  The blog posts allegedly revealed private information about the defendant, including her Social Security number.  In one Tweet, the defendant allegedly insinuated the plaintiff violated the law.  The plaintiff alleged that the defendant acted under color of state law because he abused his position as deputy district attorney by making the posts.

The 9th Circuit ruled that the complaint failed to allege facts establishing that the defendant acted under color of state law.  A state employee who is off duty acts under color of state law when (1) the employee purports to or pretends to act under color of law; (2) his pretense of acting in the performance of his duties had the purpose and effect of influencing the behavior of others; and (3) the harm inflicted on the plaintiff related in some meaningful way either to the officer's governmental status or to the performance of his duties.  He does not act under color of state law when he pursues private goals via private actions.  Under this test, the defendant did not act under color of state law.  His duties as prosecutor did not include publicly commenting about conservative politics or current events.  No facts alleged indicated that his employer authorized or encouraged his commentary.  He used his personal blog and Twitter feed, which included disclaimers that he did not make any comments on behalf of his employer.  He did not blog during business hours, or use his employer's resources.  His comments did not sufficiently relate to his work as a prosecutor to constitute state action.  He did not investigate or prosecute the plaintiff.  Rhetorical questions about whether the plaintiff committed a crime do not crate a nexus between the comments and his job.  The facts also did not establish that the defendant purported or pretended to act under color of state law.  Drawing on his experiences as a prosecutor to inform his blog posts and tweets did not transform his private speech into public action.  The fact that the plaintiff knew the defendant was a prosecutor also was insufficient.

Officers Entitled to Qualified Immunity for Entering Room of Mentally Ill Person Threatening Violence, and Shooting Her When She Confronted Them

In City and County of San Francisco v. Sheehan, published May 15, 2015, the U.S. Supreme Court reversed a decision of the 9th Circuit Court of Appeals denying police officers qualified immunity for allegedly violating the 4th Amendment rights of the plaintiff.  The plaintiff was living in a group home for individuals with mental illness.  She threatened to kill her social worker.  The social worker applied for a Wealth & Institutions Code section 5150 hold for the plaintiff.  Police officers entered the plaintiff's room so that they could escort her to evaluation and treatment.  The plaintiff grabbed a knife and threatened to kill them.  They retreated and closed the door.  Concerned about what the plaintiff might do behind the closed door, the officers reentered the room.  The plaintiff, knife in hand, again confronted them.  Pepper spray failed to subdue her.  The officers then shot her multiple times.

The Supreme Court concluded that all of the officers' actions in entering the plaintiff's room and eventually shooting her were reasonable under the 4th Amendment.  The only issue was whether the officers owed a duty to accommodate the plaintiff's disability rather than reenter her room and attempt to subdue her.  The court declined to address whether the plaintiff had any such right under the 4th Amendment.  Instead, it addressed whether any such right was clearly established.  It was not.  An expert's opinion that the officers did not comply with their training did not raise an issue of fact concerning qualified immunity.  The officers were therefore entitled to summary judgment.

The court declined to address a second question raised by the defendants' certiorari petition -- whether Title II of the Americans with Disabilities Act requires officers to accommodate mentally ill and violent suspects -- because the defendants failed to adequately address that issue in their briefs.

No Clearly-Established Eighth Amendment Right to Adequate Suicide Prevention Protocols for Inmates

In Taylor v. Barkes, published June 1, 2015, the U.S. Supreme Court reversed, per curiam, a decision by the Third Circuit Court of Appeals that correctional officials and employees were not entitled to qualified immunity to a lawsuit under 42 U.S.C. section 1983 alleging that the officials and employees violated a prisoner's 8th Amendment rights by not adequately screening him for risk of suicide, allegedly leading to the inmate's in-custody suicide.  The Supreme Court held that at the time of the suicide, 2004, there was no clearly-established right under the 8th Amendment to the proper implementation of adequate suicide prevention protocols.  No Supreme Court decision establishes such a right.  The weight of the authority at the time suggested that such a right did not exist.  The Third Circuit relied on two of its own decisions.  The Supreme Court determined that not even those decisions clearly established the right.  No precedent on the books would have made clear to the defendants that they were overseeing a system that violated the Constitution.  They were therefore entitled to qualified immunity.