Government Liability Update

Trail Immunity Applies to Golf Balls Striking Pedestrians on Path Next to Golf Course

In Leyva v. Crockett & Co.,ordered published January 25, 2017, the Fourth District Court of Appeal, Division 1, affirmed summary judgment in favor of a golf course sued when a pedestrian walking along a public unpaved hiking and equestrian trail, located near the 13th hole and separated from the course by a six-foot-high chain link fence and a line of trees, was struck by a golf ball and injured.  The golf course was the grantor of an easement along which the trail ran.  The trial court ruled that the trail immunity in Government Code section 831.4 (which protects grantors of public easement) immunized the course owner from liability.

The appellate court agreed.  The plaintiff contended that the lack of a higher barrier, rather than the location of the trail next to the golf course, caused the injury, and that the lack of barrier was not a condition of the trail or a faulty design.  The court concluded that the plaintiff would not have been struck unless the trail was located next to the 13th hole; and it did not matter whether the location or lack of safety barrier caused the accident because the effect was the same.

Improper Cavity Search after Lawful Arrest May Provide Basis for Bane Act Claim

In Simmons v. Superior Court (City of San Diego), ordered published January 25, 2017, the Fourth District Court of Appeal, Division 1, issued a writ reversing summary adjudication granted on the plaintiff's Bane Act (Civil Code section 52.1) claim.  The plaintiff was in a park after hours.  When police approached, he fled.  There was evidence he did not have a proper light on his bicycle.  After officers detained him, they found drugs in his coin pocket.  The plaintiff alleged that the officers pulled his underwear into a "wedgie" and conducted nonconsensual body cavity searches of the plaintiff.  The officers denied they did so.  The trial court granted summary adjudication to the officers and city on the Bane Act claim, concluding that the officers had probable cause to arrest him.  The trial court did not mention the cavity search.

The appellate court concluded that even if the officers had probable cause to arrest the plaintiff, the physical nonconsensual body cavity searches the officers allegedly conducted were intentional conduct, separate and apart from a lawful arrest, that could provide the basis for a Bane Act claim.  Although the defendants contended an officer's body camera footage showed that no cavity search took place, the court found the footage inconclusive on that subject.  The trial court erred in granting summary adjudication in light of the conflicting evidence.

Procedures for Administrative Challenges to Parking Citations Do Not Violate Procedural or Substantive Due Process

In Yagman v. Garcetti, published January 20, 2017, the 9th Circuit Court of Appeals affirmed a district court decision dismissing the plaintiff's 42 U.S.C. section 1983 action alleging that the California Vehicle Code's procedures for challenging parking citations, as implemented by the City of Los Angeles, deprives those who contest citations of property without due process.  Under the Vehicle Code's baseline procedural requirements, the person challenging the parking ticket first requests an initial review by the issuing agency.  If the agency does not cancel the ticket after the initial review, the challenger may, within 21 days of notice of that decision, request a hearing, which must be held within 90 days of the request.  Before the hearing, the challenger must deposit the amount of the citation or show inability to pay the deposit.  If the challenger is dissatisfied with the hearing result, the challenger may appeal the result to the superior court.

The complaint alleged that the procedure amounted to a pre-hearing deprivation that violated procedural due process.  The appellate court disagreed.  Applying the three-part test under Matthews v. Eldridge for pre-hearing deprivations, the court ruled the private interest affected (the deposit, a small amount for a short period of time) relatively modest.  The risk of erroneously depriving the challenger of the interest was relatively small, since the challenger was entitled to introduce evidence during the initial review and there was no indication the initial review was conducted unfairly.  And the City's interests in collecting the deposit--discouraging frivolous hearing requests designed only to delay paying the penalty--are substantial.  The threadbare allegations of the complaint failed to show otherwise.

The appellate court also rejected the substantive due process challenge that the procedure was fundamentally unfair.  Economic, rather than fundamental, rights were implicated.  The plaintiff would therefore have to show that the procedures were clearly arbitrary and unreasonable, having no substantial relationship to any proper goal.  The complaint failed to make that showing.  The district court properly concluded that amendment would not save the complaint, and so dismissed the complaint with prejudice.

Absent Precedent Holding That Officer Acting under Similar Circumstances Violated Fourth Amendment, Late-Arriving Officer Entitled to Qualified Immunity for Using Deadly Force without Warning

In White v. Pauly, published January 9, 2017, the U.S. Supreme Court reversed denial of summary judgment to a police officer sued under 42 U.S.C. section 1983 for use of deadly force.  Other officers had surrounded a house where a person they wished to question was located.  Evidence conflicted on whether the officers identified themselves as police.  The house's inhabitants armed themselves.  The moving officer arrived after the others had surrounded the house, and took up position behind a stone wall 50 feet from the house.  One inhabitant stepped out the back door, yelled, and fired a shotgun.  The other opened a front window and aimed a pistol in the late-arriving officer's direction.  An officer fired at the man and missed.  The late-arriving officer then shot and killed the man with the handgun.  The lower court of appeal ruled that the late arriver was not entitled to qualified immunity, because a jury could have found that because the officer did not hear the other officers identify themselves, the late-arriving officer could have remained safely behind the wall, and the inhabitants might have been acting reasonably if they did not realize those outside were officers.

The Supreme Court, per curiam, reversed.  Since there was no precedent holding that an officer acting under similar circumstances (including a belief that the officers had identified themselves before the other officer arrived), the law was not clearly established that the officer's actions violated the Fourth Amendment.  The Supreme Court returned the case to the lower courts for further proceedings.

 

 

Peace Officers Entitled to Qualified Immunity for Use of Force on Person Preventing Emergency Care and for Search of Vehicle That Is Possible Suicide Site

In Ames v. King County, Washington, published January 13, 2017, the 9th Circuit Court of Appeals reversed a district court decision denying qualified immunity to sheriff's deputies responding to the scene of an attempted suicide.  The plaintiff found her adult son at their house unresponsive and with a suicide note.  She called 911.  A sheriff's deputy responded along with a firefighter/EMT crew.  The plaintiff refused to allow the deputy to enter.  The deputy ordered the emergency crew to leave the house.  As the deputy and EMTs were in their vehicles outside the residence, the mother took the son out of the house and put him in her truck to transport to the hospital.  The deputy blocked the truck with her patrol car, and yelled for the mother to allow the EMTs to treat the son.  When the mother refused, the deputy pulled her out of the car using pain compliance techniques and handcuffed her.  When a backup deputy arrived, he understood the truck to be a possible attempted suicide site, and searched it. The son survived. The district court denied the deputies qualified immunity against the plaintiff's excessive force and illegal search claims under 42 U.S.C. section 1983.

The 9th Circuit held that a reasonable officer could have found that the deputy's use of force was reasonable, considering that the officer was acting in an emergency response rather than law enforcement capacity and the plaintiff's actions in preventing lawful attempts to render aid to her son threatened her son's life.  A reasonable officer could also have found the search of the truck reasonable, since it was in an emergency response rather than law enforcement capacity.  The deputies were therefore entitled to qualified immunity.

CANRA Requirement That Therapists Report Patients for Accessing Child Pornography Is Constitutional

In Matthews v. Harris, published January 9, 2017, the Second District Court of Appeal, Division 2 affirmed the dismissal on demurrer of a lawsuit that facially attacked provisions of the Child Abuse and Neglect Reporting Act. The provisions attacked require therapists and counselors to law enforcement or child welfare agencies patients who disclose they have developed, downloaded, streamed or accessed child pornography.  The plaintiffs, mandated reporters under CANRA, asserted that CANRA violated their patients' right to privacy under the 14th Amendment of the U.S. Constitution and Article 1, § 21 of the California Constitution.  The appellate court ruled that the plaintiffs' patients have no legally protected privacy interest in disclosing that they had accessed child pornography, a crime.  Under the law, the therapist-patient privilege does not apply to disclosure of such information.  And the state's countervailing interest in discovering and protecting sexually exploited children justifies any invasion into the patients' privacy on this subject.

Social Workers Are Not Entitled to Absolute or Qualified Immunity for Using Perjury or Fabricated Evidence to Remove Children from Parents

In Hardwick v. County of Orange, published January 3, 2017, the 9th Circuit Court of Appeals affirmed a district court's denial of summary judgment to social workers whom the plaintiff alleged used perjured testimony and fabricated evidence in 1999 to obtain the removal of the plaintiff—then a minor—from her mother. The social workers sought summary judgment based on absolute and qualified immunity.

The appellate panel held that while social workers have absolute immunity for conduct as quasi-prosecutorial advocates in presenting their case, presenting perjury and false evidence to a dependency court falls well outside their quasi-prosecutorial role. Turning to qualified immunity, the panel ruled that it was clearly established in 1999 that using perjury or fabricated evidence in civil proceedings to remove a child from her parent violated the 14th Amendment's guarantee that parents and children will not be separated by the state without due process of law except in an emergency. Case law existing in 1999 clearly established the constitutional right to be free from the knowing presentation of false or perjured evidence in civil court child removal proceedings. "No official with an IQ greater than room temperature in Alaska could claim that he or she did not know that the conduct at the center of this case violated both state and federal law." Further, in 1995 California enacted Government Code section 820.21, which states that civil immunity of social workers does not extend to malicious perjury or fabrication of evidence. Case law holding that the constitutional rights of foster parents concerning foster children were not clearly established did not apply to the clearly-established rights of parents and their children.