Government Liability Update

Police Officers Entitled to Qualified Immunity for Use of Deadly Force, But Immunity Does Not Apply to State Law Claims

In C.V. v. City of Anaheim, published May 25, 2016, the 9th Circuit Court of Appeals affirmed in part and reversed in part a district court's grant of summary judgment to a group of police officers.  The officers responded to a 911 call of a drug dealer, possibly armed with a shotgun, loitering in a parking lot.  They encountered two men.  One raised his hands in response to police commands.  The other held the barrel of what appeared to be a shotgun (but turned out to be a BB gun that resembled a shotgun).  The officers' accounts differed on whether the man picked the gun up or was holding it when police arrived.  The man did not drop the gun in response to police commands.  After about a second, one of the officers shot the man, without warning him.  The man died from the shooting.  His survivors and estate sued the officers under 42 U.S.C. section 1983, and also brought California law claims of negligence and wrongful death.  The district court granted summary judgment as to all claims.  It ruled that the shooting officer's actions were reasonable under the 4th Amendment, and that the officers were alternatively entitled to qualified immunity.  It also ruled that the officers' actions were objectively reasonable, and that the officers were therefore entitled to summary judgment under the state law claims.

The 9th Circuit found triable issues of fact on whether the officers' actions were reasonable under the 4th Amendment and under the state law claims.  A reasonable jury could conclude that the shooting officer acted unreasonably by coming across the man holding the long gun by the barrel, without moving the gun or making a move toward the trigger, and shooting him without giving him a warning or reasonable time to comply with their orders.  But because the law concerning the officers' actions under the circumstances did not clearly establish that their acts were unreasonable, they were entitled to qualified immunity.  The court therefore affirmed summary judgment on the section 1983 claims.  But since qualified immunity does not apply to California law claims of negligence, the 9th Circuit reversed the grant of summary judgment as to those claims.

School District Violates Procedural Rules of IDEA by Failing to Evaluate Child for Suspected Autism

In Timothy O. v. Paso Robles Unified School Dist., published May 23, 2016, the 9th Circuit Court of Appeal reversed a district court's judgment in favor of a school district in a special education case under the Individuals with Disabilities Education Act.  When the plaintiff child was three, the regional center where he was receiving services evaluated him for autism to determine whether he would continue to receive services.  Around the same time, the defendant school district conducted an evaluation of the child for potential disabilities.  He did not receive an assessment for autism.  A district psychologist informally observed him, and concluded that the child was not displaying symptoms of autism.  The regional center concluded that the child had symptoms of autism and diagnosed him as being on the autism spectrum.  This report was provided to the district before the child's first Individualized Education Plan meeting, but no services were provided for autism because the district had not evaluated him for autism.

The 9th Circuit held that the child had been denied the procedural protections of the IDEA, which set forth procedures for evaluating a child for any suspected disabilities.  Despite the information that the plaintiff may have suffered from autism symptoms, the district did not evaluate him in compliance with the IDEA.  A psychologist's informal observation was not a substitute for complying with the IDEA's requirements.  There was evidence that the procedural error harmed the child by delaying services that might have assisted him with overcoming his symptoms.

Trial Court Erred in Ruling Student Assumed the Risk of Injury in Breakdancing on School Property

In Jimenez v. Roseville City School District, published May 19, 2016, the Third District Court of Appeal reversed summary judgment in favor of the defendant school district in a lawsuit brought by a middle-school student injured while practicing break dancing.  A teacher allowed a group of middle-school students to use his classroom for the breakdancing practice.  He did not know that school authorities had recently witnessed students doing flips on campus, and that a vice principal had forbidden students from performing flips.  He did not know that the students practicing breakdancing would perform flips.  The injured student had not danced before, and wanted to learn how to dance.  During the practice, the teacher left the room.  While he was gone, a student flipped the plaintiff, and he was injured.  Evidence conflicted on whether flipping was an inherent part of breakdancing.  The trial court concluded that flipping was an inherent risk of breakdancing, and that by participating the student assumed the risk of the injury.

The appellate court concluded that the evidence indicated two viable theories of liability.  One was that the teacher negligently supervised the students, by leaving them unsupervised (in violation of school policy) while they practiced; and that the school's failure to communicate to him that students were flipping and that there was a rule against it contributed to the incident.  Schools should not allow children to congregate unsupervised in classrooms to engage in physical activities that can easily spiral into dangerous activities.  The second was that the district increased the risks inherent in break dancing. The evidence on whether flipping was an inherent part of breakdancing conflicted.  Even if a jury found that the school's supervision was generally adequate, it could conclude that failing to regulate the students' flipping increased the risk beyond that the student assumed by participating in the practice.

Unproven Allegations in Complaint against Public Employee Do Not Alone Determine Whether the Employee Is Entitled to Defense from Employer

In Daza v. Los Angeles Community College Dist., published May 6, 2016, the 2nd District Court of Appeal, Division 8, reversed dismissal of the cross-action of a public employee who sought defense and indemnity from his former employer.  The cross-complainant was a guidance counselor whom the plaintiff student, in the main action, accused of sexually assaulting her in his office during working hours.  The defendant district dismissed him after the plaintiff made her accusations.  The cross-complainant sought defense and indemnity from the district.  His cross-complaint alleged that the sexual assault never occurred.  The district settled the student's action against it, without admitting wrongdoing.  As a result, the student dismissed the complaint against both the district and the cross-complainant, with prejudice. The district then successfully demurred to the cross-complaint.  The trial court concluded that it was limited to the allegations of the student's complaint in determining whether the district had a duty to defend the counselor.  It concluded that the acts alleged were outside the scope of the counselor's employment as a matter of law, and that the district therefore had no duty to defend or indemnify him.

The appellate court agreed that the acts alleged in the student's complaint were outside the scope of the cross-complainant's duties, as a matter of law; and that if they were proven, the district would have no duty under the Government Code to pay the employee's defense costs.  But it held that the trial court erred by holding that the allegations in the main complaint governed the cross-action.  Instead, on demurrer the allegations of the cross-complaint were assumed true.  Because the cross-complaint alleged that the employee did not commit sexual assault, and the other circumstances of the alleged incident might support a conclusion he was sued for acts within the scope of his employment, the demurrer was error.  The employee must be given a chance to prove the allegations of his cross-complaint.

Prison Officials Entitled to Qualified Immunity for "Watchful Waiting" Treatment of Prisoner's Hernia

In Hamby v. Hammond, published May 2, 2016, the 9th Circuit affirmed a district court decision granting prison officials summary judgment in a prisoner's lawsuit accusing them of violating his 8th Amendment rights by deliberate indifference to his serious medical needs.  The prisoner suffered an umbilical hernia. Over the next year and a half, he was seen by multiple medical professionals who opined he could be treated by monitoring, or "watchful waiting," without surgery.  He was treated in this manner until he filed a lawsuit under 42 U.S.C. section 1983, alleging the lack of surgery violated his rights under the 8th Amendment.  He obtained a preliminary injunction ordering referral to a surgeon, who ultimately performed the surgery.  He continued the suit, seeking damages for the pain he suffered before surgery.  

Two of the three judges who ruled on the case concluded that the district court properly granted summary judgment, because the officials were entitled to qualified immunity.  The same standard of qualified immunity applies to 8th Amendment cases as applies to other constitutional-right cases:  Viewing the evidence in the light most favorable to the plaintiff, at the time the prison officials acted was it beyond debate that their conduct violated the Constitution?  If the answer is "no," the officials are entitled to qualified immunity.  In a medical deliberate-indifference action, the question is whether, given existing case law at the time, it was beyond debate that the prison officials pursued a medically unreasonable course of treatment by declining to provide the plaintiff the medical treatment he sought.  A difference of medical opinion is insufficient to raise a triable issue of fact on that issue. The defendants presented expert opinion that the treatment of the plaintiff's hernia was appropriate.  The plaintiff presented contrary medical evidence.  Case law demonstrated that non-surgical treatment of a reducible hernia was not indisputably unconstitutional in circumstances like these.  The officials were therefore entitled to qualified immunity.

A dissenting judge opined that evidence the prisoner's many complaints were not properly examined raised a triable issue of fact on deliberate indifference.