Government Liability Update

U.S. Supreme Court Reject's Ninth Circuit's "Provocation" Theory of Excessive-Force Liability

In County of Los Angeles v. Mendez, published May 30, 2017, the U.S. Supreme Court reversed in part and remanded a bench-trial decision against the defendant county and two sheriff's deputies in a 42 U.S.C. section 1983 case alleging violation of the plaintiffs' 4th Amendment rights.  While searching for a suspect for whom they had a felony arrest warrant, deputies entered a residence backyard without a search warrant.  In the backyard was a one-room shack with a wooden door and a blanket over the doorway.  The plaintiffs were napping on a futon inside.  One of the plaintiffs kept a BB gun in the shack.  The deputies entered the shack without knocking or announcing themselves.  When a deputy entered, a plaintiff rose and picked up the BB gun so that it was pointing somewhat toward the deputy.  The deputies shot the plaintiffs.  The 9th Circuit Court of Appeals ruled that the deputies were entitled to qualified immunity on the alleged violation of the knock-and-announce rule under the 4th Amendment, but violated clearly-established law by entering the shack without a warrant.  It affirmed the district court's conclusion that the deputies' use of force was reasonable under Graham v. Connor (1989) 490 U. S. 386, because the officers believed that a man was holding a rifle threatening their lives.  But the district court and the 9th Circuit then applied its "provocation" rule, under which an otherwise-reasonable use of force is unreasonable violates the 4th Amendment if (1) the officer intentionally or recklessly provoked a violent response and (2) that provocation is an independent constitutional violation.  The 9th Circuit concluded that the warrantless entry intentionally and recklessly brought about the shooting.  It also concluded, alternatively, that the unannounced entry into the shack proximately caused the shooting.

The U.S. Supreme Court, in a unanimous opinion (except Justice Goresuch, who did not participate), rejected the provocation rule.  The Graham v. Connor analysis is the "settled and exclusive framework" for analyzing whether a use of force complies with the 4th Amendment.  A seizure that is reasonable under that framework is not a use of excessive force.  Using another 4th Amendment claim to then impose liability for excessive force conflates 4th Amendment claims.  Any other 4th Amendment claims must be analyzed separately.

The Supreme Court remanded the 9th Circuit's alternative theory that the shooting was proximately caused by one of the other 4th Amendment violations alleged.  The 9th Circuit erred in finding the shooting was the proximate cause of the unannounced entry, because it ruled that the deputies were entitled to qualified immunity for violation of the knock-and-announce rule.  The Supreme Court remanded for a determination whether the lack of a warrant caused the shooting.

Prison-Injury Suit Filed by Former Inmate After Release Not Subject to Prisoner Complaint Screening Rule

In Olivas v. State of Nevada, published May 19, 2017, the 9th Circuit Court of Appeals reversed the dismissal with prejudice of a lawsuit filed by a former inmate.  The plaintiff alleged that while he was in prison, prison officials violated his Eighth Amendment rights by shooting him with shotgun pellets during a riot and then showing deliberate indifference to his need for medical care.  He also asserted causes of action under Nevada state law.  He filed the suit pro se in state court.  After he retained counsel, he amended the complaint.  The defendants removed the case to federal court.  The federal district court screened the case under 28 U.S.C. section 1915A, which provides for the district court to screen inmate complaints and dismiss those that fail to state a claim or that seek damages from an immune defendant.  The court dismissed the federal claims in the complaint without prejudice.  The plaintiff filed an amended complaint.  The court again screened the complaint, and dismissed the federal claims with prejudice, denying further leave to amend.  It declined to exercise jurisdiction over the state law claim.

As a matter of first impression, the 9th Circuit ruled that a former prisoner who was released from custody before he filed a complaint about events that occurred in prison is not a "prisoner" for purposes of 28 U.S.C. section 1915A.  The district court therefore may not screen or dismiss the complaint under that statute.  In dictum, the 9th Circuit also noted that the district court applied an incorrect analysis in screening the lawsuit, and erred by denying leave to further amend the complaint.

Deliberate Fabrication of Evidence Claim Proven by Direct Evidence Does Not Require Proof That Fabricator Believed the Plaintiff Innocent or of Absence of Probable Cause

In Spencer v. Krause, published May 18, 2017, the 9th Circuit Court of Appeals reversed a judgment as a matter of law in defendants' favor in a case in which a plaintiff alleged he entered into an Alford plea (i.e., a plea that the suspect is innocent but pleads guilty because of the evidence against him) to statutory rape, and was thereafter sent to prison for a life sentence, to statutory rape because a defendant detective fabricated statements from children that the plaintiff had molested them.  The plaintiff sued the defendants under 42 U.S.C. section 1983 for violating his 14th Amendment rights by fabricating evidence.  The jury found for the plaintiff, but the district court then granted the defendants' motion for judgment as a matter of law on the ground that the plaintiff had failed to prove that the defendant detective knew or should have known of his innocence.

The 9th Circuit ruled that proof of actual or constructive knowledge that a suspect is innocent is not an element of a claim for deliberate fabrication of evidence where there is direct (rather than circumstantial) evidence of fabrication.  Fabrication can be proven by circumstantial evidence, such as an investigator continuing investigation of a person after she knows or should know the person is innocent.  But where there is direct evidence that the investigator deliberately fabricated evidence, knowledge of the suspect's innocence is not relevant.  The 14th Amendment forbids fabricating evidence whether or not the defendant knows the suspect is innocent.  Here, the plaintiff introduced evidence that the defendant investigator included scores of statements in her reports that the witnesses, testifying at trial, denied making.  That was sufficient direct evidence to support the verdict.

The 9th Circuit also rejected the defendants' argument that the jury should have been instructed that the plaintiff had to prove lack of probable cause to establish causation.  Acknowledging a split among circuits on the issue, the 9th Circuit ruled that fabrication of evidence that causes a plaintiff to enter into an Alford plea despite a belief of innocence, and to be convicted, violates the 14th Amendment regardless of whether probable cause was present.

Despite Triable Issues of Material Fact on Whether Use of Deadly Force Reasonable, Officers Entitled to Qualified Immunity if Case Law Did Not Establish Unreasonableness Beyond Question

In S.B. v. County of San Diego, published May 12, 2017, the 9th Circuit Court of Appeals reversed a district court's denial of summary judgment based on qualified immunity.  Sheriff's deputies received a call that the decedent's family members were concerned about their safety because the decedent, who had mental issues, was intoxicated and acting aggressively.  The deputies entered the decedent's house with a gun and a taser drawn.  They encountered the decedent in his kitchen, his pockets full of knives.  After several orders, the decedent raised his hands and dropped to his knees.  The decedent then drew a knife quickly, and the defendant deputy fatally shot the decedent.  The three deputies involved gave inconsistent accounts of whether a deputy was trying to handcuff the decedent when the decedent drew the knife, and the distance between the decedent and the deputies when the knife was drawn.  The district court denied the defendant deputy's motion for summary judgment, on the ground that the different versions created triable issues of fact that defeated both the argument that the use of force was reasonable under the Fourth Amendment and California state law, and that the deputy was entitled to qualified immunity under federal law.  The deputy filed an interlocutory appeal.

The 9th Circuit agreed that the issues of fact prevented summary judgment on whether the use of force was reasonable under the Fourth Amendment.  Viewing the evidence in the light most favorable to the plaintiffs, a reasonable juror could find that the use of force was unreasonable, due to the decedent's distance from the deputies, that the shooting deputies could not see the other deputies' proximity to the decedent when he shot, that the deputies did not warn the decedent to drop the knife, and that the deputies could have used less-lethal force by tasing the decedent.  But the court then ruled that the issues of fact did not defeat qualified immunity.  The U.S. Supreme Court has repeatedly held that an officer is entitled to qualified immunity for a violation of the Fourth Amendment unless case law existing at the time of the violation established beyond question that the officer's actions violated the Fourth Amendment.  No case law at the time of the decedent's death established under the circumstances present that the deputy's use of lethal force would violate the Fourth Amendment.  The deputy was therefore entitled to summary judgment on the Fourth Amendment cause of action.  In a footnote, the court declined to address the cause of action for wrongful death under California law.  But it held that its conclusion that deadly force was not objectively reasonable as a matter of law supported the district court's denial of summary judgment on that claim.

Trail Immunity Does Not Apply to Public Walkway Dangerous Because of Design of Adjacent Private Golf Course

In Garcia v. American Golf Corp., published May 3, 2017, the Second District Court of Appeal, Division 2 reversed summary judgment granted to a city in a personal injury lawsuit brought by a child hit by a golf ball and his mother.  The mother was pushing the child in a stroller on a city-owned walkway that was adjacent to a private golf course.  The trial court ruled that the city was immune from dangerous-condition liability under Government Code section 831.4, the recreational trail immunity.

The appellate court disagreed.  The dangerous condition of the walkway did not stem from any defect in the walkway, but rather the design of the golf course, which took measures to prevent balls from flying out of the course that proved insufficient.  The cases applying section 831.4 immunity to conditions of adjacent property involve natural conditions next to the trail, or integral parts of the trail.  Here, the golf course was not an integral part of the trail.   The reason for the trail immunity is to encourage municipalities to open up their land to recreation without facing liability for doing so.  Here, the liability results from the proximity of the walkway to a revenue producing private facility, which can afford to deal with liability and provides the city with revenue so that it too can address liability.  The appellate court also rejected design immunity, because the dangerous condition was design of adjacent private property rather than public property; and the argument that the city adequately warned of golf balls, because there was no evidence the city created the warning signs present and there was a triable issue of fact on whether the signs were adequate.  It also rejected an assumption of risk argument:  a passerby did not assume the risk of being hit by a golf ball under either primary or secondary assumption of the risk.

Because Police Had Probable Cause to Detain Teacher under Welfare and Institutions Code section 5150, They Cannot Be Held Liable for the Detention

In Julian v. Mission Community Hospital, published May 2, 2017, the Second District Court of Appeal, Division 7 affirmed summary judgment in favor of Los Angeles Unified School District, the Los Angeles Unified School Police, five police officers, and a private hospital in a lawsuit brought by a school teacher.  The teacher complained to the principal that another teacher "physically assaulted" her by grabbing her hand as she tried to clsoe a door.  Another teacher texted the principal that the teacher "wants to slit her wrists" concerning some recent changes at the school. The teacher had scratches on her arms that the teacher had told the principal were caused by her cats.  Officers of the school police approached the teacher to interview her about the alleged assault.  The teacher responded by running down a hallway, dropping to the floor, and crying and screaming.  The officers called paramedics, who strapped the teacher to a gurney as she resisted. She was taken to the hospital, where an officer gave the hospital a Welfare and Institutions Code 5150 detention application.  The hospital determined that the teacher should be detained.  She was examined and released the next day.  She sued the defendants for violations of the Lanterman-Petris-Short Act (Welfare and Institutions Code sections 5000 et seq), violation of her civil rights under 42 U.S.C. section 1983 and the California Constitution, and false imprisonment.  The trial court granted the school defendants summary judgment, and sustained the hospital's demurrer.

The appellate court rejected the plaintiff's theory that the Lanterman-Petris-Short Act created any cause of action for damages that would apply.  Portions of the Act create limited causes of action for damages, none of which applied here.  The other portions did not satisfy any of the tests for whether a statute creates a cause of action for damages.  That portions of the Act do specifically provide causes of action indicates that the Legislature did not intend the other portions to create additional causes of action.

As to plaintiff's 42 U.S.C. section 1983 claim, neither the school district nor its police department could be sued under section 1983 because the school district is an arm of the state, and the district's police department was a division of the district.  Therefore, neither was a "person" under section 1983.  Further, the plaintiff failed to show that either had any unconstitutional custom, policy or practice that led to her detention.  The plaintiff alleged that the police officer defendants violated her rights under the First Amendment, Fourth Amendment, and Ninth Amendment.  No facts showed any violation of the plaintiff's First Amendment rights.  The plaintiff failed to persuade the court that a "right to be properly cared for by physicians" existed under the Ninth Amendment; and in any event such a right would not apply to the police defendants.  The Fourth Amendment claim failed because the undisputed facts established that the officers had probable cause because the officers, as lay persons, could articulate behavioral symptoms of mental disorder that the plaintiff displayed:  thought processes, as evidenced by words or actions or emotional affect, that are bizarre or inappropriate.  The issues of fact the plaintiff sought to raise--such as her contention that her cats made the scratches on her arms--did not undermine the facts that established probable cause.  Her allegations of civil conspiracy between the school police failed because a conspiracy requires an underlying constitutional violation, and she failed to show any.

The appellate court rejected the plaintiff's claims that the California Constitution's provisions regarding free speech, right to petition the government, due process, or equal protection created a cause of action for damages when the action is not tied to an established common law or statutory action.  The plaintiff did not allege any such action.  Whether there is a cause of action for violation of the right to privacy under the California constitution is unsettled; but the plaintiff failed to state the elements of a cause of action for invasion of privacy.  Similarly, the law is unsettled on whether the California Constitution's right against unreasonable searches and seizures creates a cause of action for damages; but if it did, the defendants would be immune from liability.  Welfare and Institutions Code section 5278 immunizes persons authorized to detain individuals under the Act if they acted with probable cause and did not commit negligent acts, intentional torts, or criminal wrongs during the course of the detention.  The police defendants had probable cause to detain the plaintiff, and there was no showing of other wrongs committed.  The plaintiff failed to show facts that would establish a violation of the Bane Act.

Finally, the appellate court ruled that the hospital defendants were not state actors for purposes of section 1983, and did not violate the California Constitution.