Government Liability Update

The Exclusionary Rule Does Not Apply in 42 U.S.C. Section 1983 Cases

In Lingo v. City of Salem, published June 27, 2016, the 9th Circuit Court of Appeals affirmed summary judgment in favor of defendant police officers in a case brought under 42 U.S.C. section 1983 alleging that the officers arrested the plaintiff without probable cause.  The officers were approaching the plaintiff's house to discuss a neighbor's dispute with her.  Instead of approaching the front door, the officers walked through the plaintiff's carport and knocked on the rear door inside the carport.  When the door opened, they smelled marijuana. When the officers saw a minor child, and confirmed the plaintiff lived with her minor children, they arrested her for endangering the welfare of a minor.  They then obtained a warrant and searched her house.  Before the trial of the criminal case against her, the trial court excluded the evidence the police collected as the fruit of the officers' initial entry into the curtilage of the house, which the court ruled violated the 4th Amendment.  The charges were dropped.  When the plaintiff sued the officers, she argued that the officers violated her 4th Amendment rights, and tried to prevent the officers from introducing the evidence they obtained to show probable cause to arrest.  The district court agreed that the officers violated the 4th Amendment, but declined to exclude the evidence and concluded that the officers had probable cause to arrest the plaintiff.

The 9th Circuit agreed.  The exclusionary rule is not itself a constitutional right.  It is a judicially-created remedy for unconstitutionally-obtained evidence in criminal prosecutions.  Its deterrent effect would be limited in civil cases.  The 9th Circuit joined other circuit courts in concluding that the exclusionary rule does not apply in section 1983 cases.  It also rejected the argument that the 4th Amendment prohibits any arrest justified based solely on evidence obtained from unlawful searches.

Courts May Not Create Exceptions to the Prison Litigation Reform Act's Exhaustion Requirement; But Inmate Need Only Exhaust Administrative Remedies That Are Available

In Ross v. Blake, published June 6, 2016, the U.S. Supreme Court reversed the 4th Circuit's holding that "special circumstances" excused an inmate from exhausting his prison's administrative remedies before suing two guards under 42 U.S.C. section 1983 for use of excessive force.  The inmate reported the excessive force incident to a senior corrections officer, who referred the incident to the state prison system's Internal Investigation Unit.  The IIU conducted an investigation and issued a report condemning one of the guard's actions while making no findings on the other guard's actions.  The state also prescribed procedures for obtaining an administrative remedy, the Administrative Remedy Procedure, that began with a formal grievance to the prison's warden, and also involved administrative appeals.  The inmate did not pursue those remedies.  One of the guards raised as an affirmative defense the requirement under 42 U.S.C. section 1997e(a), part of the Prison Litigation Reform Act of 1995, that prisoners exhaust administrative requirements before suing under federal statutes for prison conditions, including use of excessive force.  The 4th Circuit ruled that the PRLA's exhaustion requirement was not absolute, and that a prisoner's reasonable but mistaken belief that he had sufficiently exhausted his remedies excused failure to exhaust available remedies.

The Supreme Court rejected that interpretation of the PRLA.  The language of the statute, amended from a more permissive exhaustion provision, requires that prisoners exhaust available administrative remedies before suing.  Courts cannot create exceptions to Congress's statutory direction.  But the court remanded the case for a determination of whether the administrative remedies were actually "available" to the inmate.  An administrative remedy may be "unavailable" to an inmate if it operates as a dead end, with officers unable or consistently unwilling to provide any relief to aggrieved inmates.  It may also be unavailable if it is so opaque that no ordinary prisoner can discern or navigate it.  Finally, a remedy may be unavailable if prison administrators thwart inmates from taking advantage of it through machination, misrepresentation, or intimidation.

Skateboarder Assumed Risk of Injury from Alleged Dangerous Condition of Public Property

In Bertsch v. Mammoth Community Water Dist., published June 1, 2016, the Third District Court of Appeal affirmed summary judgment in favor of the defendant water district in a wrongful death action.  The decedent and his brother, on vacation with their father, were cruising around a neighborhood on their skateboards for fun.  After coming to an intersection where their father planned to meet them, they pushed their way up an incline in the road so that they could come down the hill on their boards.  Neither wore a helmet.  The decedent came down the hill at speed on the wrong side of the road.  The front wheels of his board hit a gap between the road and a concrete collar around a manhole cover.  He was ejected, struck his head on the pavement, and eventually passed away from his injuries.  The plaintiffs sued the water district under Government Code section 835 for maintaining a dangerous condition of public property.  The trial court ruled that the decedent had assumed the risk of injury from skateboarding.

The appellate court agreed.  The decedent's actions in pushing himself up the hill and skating down the road, on the wrong side, at speed and without a helmet, showed that he was using the skateboard for enjoyment or thrill, rather than merely for transportation.  The primary assumption of risk doctrine therefore applied.  The court rejected the argument that the water district could be held liable for increasing the risk to the decedent, because the duty to avoid increasing the risk applies only to those who are in an organized relationship with the injured party in relation to the activity.  It did not hold the roadway or manhole cover out as an appropriate or safe place to skateboard.  The policy reasons behind the assumption of risk doctrine, the court ruled, favor its application here.