Government Liability Update

Dismissal of Criminal Conviction under Penal Code Section 1203.4 Is Not Favorable Termination or Expungement for Purposes of Heck v. Humphrey

In Baranchek v. Fizulich, published April 19, 2017, the Second District Court of Appeal, Division 5 affirmed judgment for defendants following summary adjudication of a plaintiff's cause of action for false arrest and another plaintiff's cause of action for excessive force, both brought under 42 U.S.C. section 1983. One plaintiff was arrested for public intoxication.  He matched the description of a suspect involved in a bar fight, and he had watery eyes, slurred speech, and the smell of alcohol.  He later sued for false arrest.  The other plaintiff walked toward the arresting officer saying, "That's my brother.  What's going on here?"  He was tased.  The Tased plaintiff was later convicted of resisting, obstructing, or delaying an officer in violation of Penal Code section 148, subdivision (a)(1).  The issue at his criminal trial was whether the officer's conduct was lawful or whether he used excessive force.  Two years after his conviction, and after the trial court in the civil case granted summary adjudication to defendants, the criminal court dismissed the conviction under Penal Code section 1203.4.

The appellate court held that the evidence established that the arresting officer had probable cause to arrest the first plaintiff for public intoxication.  It further held that the trial court correctly ruled that the Heck v. Humphrey doctrine barred the second plaintiff's suit for excessive force, because a finding in the civil case that the officer used excessive force would necessarily invalidate the criminal conviction, which turned on the jury's finding that the officer did not use excessive force.  The court also held that the dismissal of the conviction under Penal Code section 1203.4 did not eliminate the Heck doctrine's application.  Heck does not apply if the conviction has been subsequently resolved in the plaintiff's favor, through an appeal, expunged by executive order, declared invalid by a state tribunal authorized to make such determination, or called into question by a federal court’s issuance of a writ of habeas corpus.  Section 1203.4 permits a court to release a defendant from all penalties and disabilities from a conviction if the defendant successfully completes the terms of probation.  It contains several limitations.  Most important, if the defendant is subsequently prosecuted for another offense, the conviction may be treated as a prior conviction.  It is therefore not a favorable termination under the Heck doctrine. 

Firefighting Immunity Applies to Accident in Which Sleeping Firefighter Run Over by Shower Servicing Truck

In Quigley v. Garden Valley Fire Protection District, published April 19, 2017, the Third District Court of Appeal affirmed nonsuit in favor of the defendant district in a personal injury lawsuit brought by a firefighter.  During the Silver Fire, the United States Forest Service set up a base camp at Plumas County Fairgrounds.  It set up a shower unit in the infield of the fairgrounds' racetrack, and arranged for an independent contractor to service the unit.  A nonfirefighting team, which became employees of the defendant district, managed the base camp.  The plaintiff, a Forest Service firefighter, obtained permission to sleep in the infield during a break from fighting the fire.  The infield was not roped off or signed as a sleeping area.  While she was sleeping, a truck servicing the shower unit ran over the plaintiff, seriously injuring her.  She sued the district and the management team for failure to warn, negligence, and dangerous condition of public property.  The trial court granted nonsuit based on (among other grounds) Government Code section 850.4's firefighting immunity.

The appellate court agreed with the trial court that the defendants did not waive the section 850.4 immunity, even though they did not plead it.  Governmental immunity is jurisdictional and can be raised at any time.  The court disagreed with the holding in McMahan’s of Santa Monica v. City of Santa Monica (1983) 146 Cal.App.3d 683 that section 850.4 immunities, unlike other immunities, must be pleaded or else waived.  Absolute immunities such as section 850.4, unlike qualified immunities that depend on specific facts being true, cannot be waived.  The court further rejected the argument that the immunity applied only when firefighting facilities are being used for firefighting.  The statute's wording and legislative history establish that it alternatively applies to firefighting facilities and equipment, even when not being used to fight fires.

No-Contest Plea to Juvenile Court's Dependency Jurisdiction Order, Combined with Discretionary Immunity, Bars Lawsuit against Social Workers for Detaining Children

In Gabrielle A. v. County of Orange,  published on April 19, 2017, the Fourth District Court of Appeal, Division 3, affirmed summary judgment in favor of the County of Orange and a group of social workers in a lawsuit brought by two parents on a variety of causes of action arising from the detention of a newborn child and a two-year-old child for six months.  The children were originally taken from the mother, who gave birth in Orange County while visiting from Los Angeles County without her husband, because the mother was allegedly acting irrationally and aggressively after the birth.  The parents pleaded no contest to a Welfare & Institutions Code section 300 order making the children dependents of the juvenile court.

The appellate court held that the record established that the parents entered into the no-contest plea knowingly.  The no-contest plea removed the premise of the parents' claims that the children were wrongfully detained, removed, and subjected to the juvenile court's jurisdiction due to the alleged misconduct of the social workers.  Further, the social workers and the county were entitled to statutory immunity.  Government Code section 820.2, the discretionary immunity, covers social workers for child placement decisions; and under Government Code section 815.2, the county shares the immunity.  The exception to the immunity under Government Code section 820.21 for social workers who commit perjury, fabricate evidence, or fail to disclose exculpatory evidence did not apply, because the parents' evidence did not raise a triable issue of material fact on whether the social workers acted with malice.  The causes of action for negligent supervision, hiring and retention failed because the nonstatutory causes of action could not be asserted against the county, and the parents failed to raise a triable issue of fact on whether any of the individual defendants could be held liable for those causes of action.  The causes of action under the Bane Act, Unruh Act, and Ralph Act failed because there was no evidence of violence, threat of violence, or discrimination.

Embarrassing Treatment of Elderly Person for No Law Enforcement Purpose May Violate Fourth Amendment

In Davis v. United States, published April 13, 2017, the 9th Circuit Court of Appeals affirmed denial of a federal agent's motion for summary judgment on qualified immunity grounds in a Bivens action.  The plaintiff, a small 74-year-old woman, sought to sell a paperweight containing a rice-grain-sized sliver of moon rock that she believed Neil Armstrong gave her husband in recognition of her husband's service to NASA.  She needed the money for treatment of her ill son.  She contacted NASA to ask if they knew of possible buyers.  A NASA agent organized a sting operation in which he met the plaintiff at a family restaurant in daylight hours, posing as a buyer.  He seized the rock and he and other law enforcement personnel took the plaintiff into the parking lot.  En route, the plaintiff urinated in her pants.  According to the plaintiff, the agent interrogated her in the parking lot for one-and-a-half to two hours while she stood in urine-soaked pants.

The 9th Circuit held that, based on the plaintiff's version of events, the plaintiff raised genuine issues of triable facts on whether the detention was unreasonably prolonged and degrading, and therefore violated the Fourth Amendment.  The agent had already seized the paperweight, the circumstances made it unlikely that the plaintiff was armed, and the agent knew the circumstances behind the plaintiff's acts.

Prevailing Student Entitled to Fees under IDEA for Defending Victory on Appeal, but Not After Student Graduates from High School and Right to FAPE No Longer Threatened

In Irvine Unified School Dist. v. K.G., published April 13, 2017, a divided panel of the 9th Circuit Court of Appeals affirmed an attorney fee award to a student under the Individuals with Disabilities Education Act, but reversed the order setting the amount of the award and remanded the matter back to the district court for recalculation.  Three agencies agreed that K.G. was entitled to a Free and Appropriate Public Education under the IDEA, but each agency contended it was not responsible for paying for K.G.'s special education.  K.G. initiated an action in the California Office of Administrative Hearings asking that an administrative law judge deem one of the three agencies responsible for paying for his education.  The ALJ deemed the school district responsible.  The school district brought an IDEA action in federal court challenging that ruling, and arguing that the state was the responsible agency.  It named the other agencies and K.G. as defendants.  Before the district court ruled on the case, K.G. graduated from high school.  There was no threat to take his diploma away.  During the district court proceedings, K.G. argued that the state was responsible for his education  Seven months after K.G. graduated, the district court ruled that the state was responsible.  The state appealed to the 9th Circuit.  The 9th Circuit ruled that the district was responsible.  On remand, the district court awarded K.G. his attorney fees.  The school district appealed the fee award.

The 9th Circuit ruled that K.G. was entitled to attorney fees.  He brought the administrative action because the dispute over funding threatened his FAPE.  He obtained an enforceable decision in that action that one of the agencies was responsible for his education.  The district "kept the meter running" by bringing the district court suit while K.G. was still a student.  The majority held, however, that K.G.'s fees should be reduced if it was unreasonable for his attorneys to continue litigating (rather than seeking K.G.'s dismissal from the suit as a defendant) after K.G. graduated and could no longer benefit from the litigation.  A dissenting judge opined that the fee award should not be reduced.

Gunowner Convicted of Domestic Violence Misdemeanor Who Completed Probation Properly Arrested and Prosecuted for Gun Ownership

In Fortson v. Los Angeles City Attorney's Office, published April 7, 2017, the 9th Circuit Court of Appeals affirmed dismissal of a 42 U.S.C. section 1983 lawsuit based on alleged violation of the Second Amendment.  The plaintiff, a security guard, was convicted of misdemeanor domestic abuse.  Under the California Penal Code, that made it a misdemeanor for him to own, buy, or have in his custody a firearm for 10 years.  His sentence was modified to permit him to use and keep a weapon while on the job as a security guard, but to forbid him from having weapons in his possession when not at work.  He completed the affirmative obligations of his sentence, his conviction was vacated, and his case was dismissed.  Plaintiff purchased two handguns.  Under Bureau of Firearm policies, BOF agents were to come to plaintiff's home, request permission to enter and seize the weapons, and return with a warrant if he refused.  Instead, when they came to his home and he refused to turn over the weapons, they restrained him and seized the weapons. Plaintiff was charged with violating the 10-year ban on weapons.  The charges were later dropped.  Plaintiff brought an as-applied challenge against the 10-year ban, and false imprisonment and malicious prosecution claims.

The 9th Circuit upheld the constitutionality of the 10-year ban.  It had previously upheld a federal statute imposing a lifetime ban on firearm ownership for those convicted of domestic violence misdemeanors.  The 10-year ban is less restrictive, and shares the same goal of preventing domestic gun violence.  It does not violate the Second Amendment, which protects the rights of law-abiding responsible citizens to use weapons in defense of hearth and home.  The ban was not coterminus with plaintiff's probation, and he was mistaken in thinking it was.  The false imprisonment and malicious prosecution claims failed because the agents had probable cause for plaintiff's arrest, even though the search for them may have been unlawful.