Government Liability Update

First Amendment Protects Government Officials' Speech in Response to Accusation of Misconduct

In Mulligan v. Nichols, published August 29, 2016, the 9th Circuit affirmed a partial summary judgment and a judgment after jury trial in favor of the City of Los Angeles, two LAPD officers, the Los Angeles Police Protective League, and League officials.  The defendant officers responded to a report of a man acting erratically.  They encountered plaintiff, and checked him into a motel.  He left the motel.  When he encountered the officers again, they used force to subdue him.  The circumstances behind the use of force were disputed.  The plaintiff presented a claim for damages to the city, alleging that the officers acted unlawfully.  Because the plaintiff was an executive with Deutsche Bank and a former media executive, the incident and claim attracted media attention.  The League--allegedly with assistance from city officials--responded by accusing the plaintiff of being a drug abuser and of having acted aggressively toward the officers.  The League's press release included a leaked tape of a conversation between the plaintiff and an officer with another police agency in which the plaintiff admitted to using bath salts.  Because of the press release and negative media coverage, the plaintiff lost his job.  He brought suit on a variety of theories.  The court granted defendants summary judgment on plaintiff's First Amendment retaliation claim and state law police negligence claim.  The rest of the plaintiff's claims proceeded to trial, where the jury found against him.

The appellate court affirmed summary judgment on the First Amendment retaliation claim.  To state a claim for First Amendment retaliation against a government official, the plaintiff must demonstrate that he engaged in constitutionally-protected activity; that he was subjected to chilling adverse action by the defendant; and that there was a substantial causal relationship between the conduct and adverse action.  The First Amendment protects government officials' speech.  The court therefore sets a high bar for determining whether government officials' speech is sufficiently adverse to give rise to a retaliation claim.  The court agreed with other circuits, and held that a citizen's First Amendment rights are not violated absent a threat, coercion, or intimidation intimating that punishment, sanction, or adverse regulatory action will follow.  Although the speech here caused the plaintiff to lose his job, and was embarrassing, it did not involve threat, intimidation, or coercion.

The court also upheld summary judgment on the negligent use of force claim.  The plaintiff alleged that the police conduct of taking him to a motel was negligent and led to the use of force.  The court held that the incident's connection with the use of force was too attenuated to support a negligence claim.

Local Legislators' Votes are Protected Conduct under Anti-SLAPP Statute

In City of Montebello v. Vasquez, published August 8, 2016, the California Supreme Court reversed the denial of a special motion to strike under the anti-SLAPP statute. The city sued three former council members and a former city administrator, alleging that their vote to approve a waste hauling contract violated Government Code section 1090 due to a conflict in interest. The council members asserted that their vote was protected conduct under Government Code section 425.16. The lower appellate court ruled that the conduct was not protected. It also ruled that the exemption from anti-SLAPP motions for public enforcement actions did not apply to the city's suit.

The Supreme Court agreed that the prosecutorial exemption did not apply. By statute, it applies only to actions brought in the name of the people of the state by the attorney general, a district attorney, or a city attorney, acting as a public prosecutor. A suit brought by a city, in its own name and through private counsel, does not meet that criteria. But the Supreme Court reversed the ruling that the vote was not protected conduct. The statute protects acts in furtherance of the defendant's rights of petition or free speech under the federal or state constitution. Although the U.S. Supreme Court has held that a legislator's vote is not protected free speech, the anti-SLAPP statute does not only apply to activity protected by the constitutional right of free speech, but also acts in furtherance of those rights. Since the statute expressly protects communications before legislative bodies and in legislative proceedings, the statute protected the defendants votes, their statements in connection with their votes, and their statements when negotiating the contract. Although anti-SLAPP does not protect illegal conduct, the question of whether the conduct was illegal was premature. The court remanded the case for a determination of the other issues under anti-SLAPP analysis.