Government Liability Update

Impairment of View from Private Property by Trees Planted on City Property Is Not Inverse Condemnation

In Boxer v. City of Beverly Hills, published April 26, 2016, the Second District Court of Appeal, Division 1 affirmed a trial court's order dismissal on demurrer of an inverse condemnation action.  The plaintiff homeowners alleged that redwood trees planted in a nearby city park in 1989 had grown and impaired their view from their property.  They asserted that this impairment was a taking of their property rights that was actionable in inverse condemnation.  They relied on cases holding that impairment of view was a compensable loss in inverse condemnation cases.

 

The appellate court held that impairment of view is not a taking of property rights.  In the cases the plaintiffs relied upon, there was a physical invasion into, or impairment of access to, the plaintiffs' property. There is no property right to a particular view from one's property that is enforceable in inverse condemnation.  Further, cities have a right to plant trees on city property.

Public Employer That Retaliates Against Employee out of Mistaken Belief That Employee Exercised 1st Amendment Rights May Be Sued for Violating First Amendment

In Heffernan v. City of Paterson, New Jersey, published April 26, 2016, the U.S. Supreme Court reversed a district court's ruling that the plaintiff employee could not state a claim under 42 U.S.C. section 1983 for violation of his 1st Amendment rights.  Under the "simplified" version of the facts the Supreme Court assumed for purposes of deciding the legal questions in the case, the plaintiff, a police officer employed by the defendant, went to a mayoral candidate's sign distribution center to pick up a campaign sign for his bedridden mother.  Co-workers saw him talking to the campaign manager, sign in hand.  The next day, his superiors demoted him.  The plaintiff alleged that his superiors demoted him out of a mistaken belief he was exercising his 1st Amendment rights.

The Supreme Court majority held that a discharge or demotion based upon an employer's belief that the employee has engaged in an activity protected by the 1st Amendment is actionable under the 1st Amendment and section 1983, even if the employer's belief is mistaken. The focus is on the employer's motive and activity.  This standard imposes upon the employee the burden of proving the employer's motive for its action, which may be a difficult task.

Two justices dissented.  They opined that an employee who was not engaged in protected activity should not have the right to sue for retaliation based on engaging in protected activity.

Split Opinion on Whether Unleashing Dog Trained to Bite-And-Hold in Response to Burglar Alarm in Commercial Building May Be Use of Excessive Force

In Lowry v. City of San Diego, published April 1, 2016, a divided panel of the 9th Circuit Court of Appeal reversed summary judgment in favor of the defendant city in a police excessive force case.  Responding to a burglar alarm in a commercial building, police officers--after shouting warnings--unleashed into the building a dog trained to bite-and-hold the first person the dog encountered.  The plaintiff, who worked in the building, was asleep on a couch in her office, after unwittingly tripping the burglar alarm.  The dog jumped on her and bit her lip, tearing it open.  An officer told her she was lucky, as the dog could have ripped her face off.  The district court concluded that because the use of force was brief, the injury was not severe, and burglary is a felony, there was no issue of fact that the officers used a reasonable amount of force.

The majority held that the district court's analysis was incorrect.  The excessive force analysis weighs the nature and quality of the intrusion on the individual's Fourth Amendment rights against the countervailing government interests at stake.  The intrusion is measured not only by the amount of force used, but also the type used.  Unleashing a dog trained to bite-and-hold is a severe use of force, because of the severity of the potential injury.  That the plaintiff here was "lucky" does not change that.  A reasonable jury could also find that the city's countervailing interests did not warrant the use of severe force, since the plaintiff did not pose a threat to the officers or others, she did not attempt to resist or evade arrest, and responding to a tripped burglar alarms is not an inherently dangerous situation.  Since the use of the dog was in accordance with city policy, the potential for city liability under Monell was present.

The dissenting judge opined that there was no triable issue of material that the officers acted reasonably in approaching a scene where a burglar alarm had been tripped and there was no indication that the person who had set it off had left.