Government Liability Update

Police Officer Not Entitled to Qualified Immunity if He Shot Youth with Toy Rifle Who Turned to Officer without Making Threatening Gesture

In Estate of Andy Lopez v. Gelhaus, published September 22, 2017, a divided panel of the 9th Circuit Court of Appeals affirmed a district court order denying summary judgment to a defendant sheriff's deputy who used deadly force on a teenager walking down the street in the afternoon carrying a toy AK-47 rifle with the orange tip removed. A civilian witness had seen the youth earlier, and concluded that the weapon was obviously a toy.  The only living witnesses to the shooting were deputies. The deputies; accounts of whether the decedent raised the weapon toward them, and how it happened, differed, including differences between the officers' declarations and their deposition testimony.  The district court concluded that, taking the facts in the light most favorable to the plaintiffs, the deputy violated the Fourth Amendment by using deadly force without an imminent threat and without a warning that he would use deadly force; and that the right violated was clearly established.

The 9th Circuit majority agreed.  Where the only witnesses to a police shooting are the officers and the decedent, the court must review the evidence in the record carefully.  Where the officers move for summary judgment, and the evidence in the record could support different versions of what happened in the shooting, the court views the evidence in the light most favorable to the nonmoving party and decides whether the officers are entitled to qualified immunity.  The majority concluded that interpreting the evidence in the light most favorable to plaintiffs, the decedent turned when the deputies called from behind, and he did not raise the toy rifle in a threatening or harrowing gesture.  He therefore did not pose an imminent threat, and using deadly force without warning violated the Fourth Amendment.  Further, on-point case law at the time of the shooting established that using deadly force against a person who was armed but who was not pointing the weapon at officers or making a threatening or harrowing gesture with it violated the Fourth Amendment.  The deputy therefore was not entitled to summary judgment based on qualified immunity.  The factual issues would have to be submitted to a jury.

A dissenting judge opined that the undisputed evidence showed that the decedent turned toward the deputies with the toy weapon in a threatening gesture, and that the defendant deputy was therefore entitled to qualified immunity for using deadly force. 

Equity Prevents Claim Preclusion Where Earlier Judgment against Plaintiff Was Based on Federal Court Decision from Same Facts That Was Overturned on En Banc Review

In F.E.V. v. City of Anaheim, published September 19, 2017, the Fourth District Court of Appeal, Division 3 reversed the dismissal on demurrer of a wrongful death case arising out of a police shooting.  The plaintiffs brought federal and state causes of action against the police and city in federal court.  The federal district court granted summary judgment on the federal claims, ruling that the officers did not use excessive force and did not violate the Fourth Amendment.  It dismissed the state law causes of action without prejudice. The plaintiffs appealed that decision to the 9th Circuit. The plaintiffs then filed a state court action based on their state law claims, including negligence, battery, and violation of the Bane Act.  The trial court sustained a demurrer against the state court action and dismissed it, on the grounds that the federal decision had claim preclusion effect on the state law claims. The plaintiffs appealed the state court dismissal.  Before the state court appeal was decided, the 9th Circuit affirmed the federal district court decision.  The state appellate court ruled that the federal decision collaterally estopped the plaintiffs from pursuing their state law claims.  Months later, the 9th Circuit issued an en banc review decision reversing the panel decision in the federal case as to the claims of excessive force.  Plaintiffs then filed a new state court complaint, re-asserting their state law causes of action.  The state court denied a motion to vacate the earlier state court decision.  The appellate court denied a writ petition challenging that ruling.  The defendants demurred on the ground of collateral estoppel.  The trial court sustained the demurrer and dismissed the second state case.

The appellate court concluded that claim preclusion based on the earlier state court decision would apply, if equity permitted.  But under the unusual circumstances, equity did not permit claims preclusion to bar the plaintiffs from litigating their state law claims, since the earlier judgment was based on a federal ruling that was ultimately reversed.

Deputies Entitled to Qualified Immunity for Arresting Incorrect Suspect, Use of Force, and Search of Home, But Not Allegedly Retaliatory Arrest

In Sharp v. County of Orange, published September 19, 2017, a divided 9th Circuit panel affirmed in part and reversed in part denial of the defendant deputies' motion for summary judgment based on qualified immunity.  Deputies had an arrest warrant for a suspect. They went to the suspect's parents' house, listed on his probation documents as his residence.  The suspect's parents had kicked him out of the house, but he was there that night to pick up belongings.  When deputies knocked, a person matching the suspect's description was reported to have rushed out of the house, then reentering.  Two defendant deputies arrived at the house without having seen a photo of the warrant subject or knowing his name.  They did hear a description of the suspect's clothing.  As they approached the house, the suspect's father walked out of the house wearing different clothes.  He contended he walked toward them calmly.  The deputies were uncertain whether the father was the warrant subject, but they arrested him.  One shoved the father's arm up when handcuffing him, allegedly injuring the father's shoulder.  Shortly after the arrest, the warrant subject's mother informed the deputies that they had arrested the wrong suspect.  The deputies realized their mistake, but kept the father handcuffed and locked in their patrol car as they questioned him about his son's whereabouts.  The father protested, swore, and threatened to sue the deputies.  In response, a defendant deputy told the father, "If you weren't being so argumentative, I'd probably just put you on the curb." The father was detained about 20 minutes.  The deputies searched the house.  The father sued the deputies for violating the Fourth Amendment by arresting him, by detaining him in the car, the search of his person, and use of excessive force.  He asserted a First Amendment claim for retaliatory arrest based on failure to release him.  The father and mother sued for search of their home.  They also asserted California law claims.

The 9th Circuit held that the deputies' initial arrest of the father was unconstitutional, because the mistake of the father's identity for that of the son's was unreasonable.  The father did not match the son's description, was wearing different clothes, and was walking toward them.  The arrest therefore violated the Fourth Amendment.  But the majority concluded that the deputies were entitled to qualified immunity, because the Fourth Amendment violation was not "obvious" and because no binding case law at the time indicated that arresting the wrong person as a warrant subject by deputies arriving late on the scene in a dynamic and evolving scene with a fleeing subject prone to act violently violated the Fourth Amendment.  The majority opined that finding an "obvious" violation of the law that did not require existing case law establishing unconstitutionality was "problematic" for Fourth Amendment violations.  The 9th Circuit also ruled that the detention could not be justified by extending to an arrest warrant the authority that a search warrant allows the police to detain the occupants of a home subject to the warrant.  But again, the deputies were entitled to qualified immunity on that point, because the law did not clearly establish that arrest warrants would not be treated like search warrants.  The court also concluded that continuing to detain the father after the mistake was discovered was unreasonable.  But the majority concluded that no case law clearly established the unconstitutionality, so the officers were entitled to qualified immunity on the claim that the detention without probable cause violated the Fourth Amendment.  The qualified immunity for the arrest also applied to the search of the father's person.  Because the son had a probation condition that permitted warrantless arrests of his residences, and he listed the home as his residence, the deputies' search of the house did not violate the Fourth Amendment.

The court ruled, however, that the retaliatory detention of the suspect in the car (as shown by the officer's statement) did violate the father's First Amendment rights, and that case law at the time clearly established that the detention in retaliation for the father's statements would violate the First Amendment.  The officers were therefore not entitled to qualified immunity on that claim.

The court also ruled that the district court correctly rejected the state law immunities that the officers asserted to the state law claims.  Discretionary immunity under Government Code section 820.2 did not apply to detentions or arrests of suspects or other non-policy decisions.  The court declined to follow lower California appellate courts that had expanded application of Government Code section 821.6's prosecution immunity to torts other than malicious prosecution.  The immunities for reasonable belief that an arrestee is the subject of a warrant (Civ. Code, § 43.55(a)) and for arrests with reasonable cause (Penal Code, §847(b)(1)) did not apply, because the deputies' arrest and detention of the father was unreasonable.

A dissenting judge opined that the violations of the Fourth Amendment as to the father were obvious, and that qualified immunity should have been denied.

Police Employment Discrimination Claim Requires Proof Employer Discriminated Based on Officers' Race, Not The Race of the Suspect They Shot

In Diego v. City of Los Angeles, published September 14, 2017, the Second District Court of Appeal, Division 1 reversed denial of directed verdict to the defendant city, and thus reversed a jury verdict in the plaintiff officers' favor. The officers shot and killed a man they thought was armed. He was an African-American autistic man with a cell phone. The officers were faulted on their tactics, but the policy was found to be within policy. The officers were taken off field duty for several years, and lost promotional opportunities and off-duty work as a result. The officers were Hispanic. A white officer who shot an Hispanic male and whose shooting was found out of policy returned to the field after a much shorter time. Evidence indicated the longer period of being "benched" was due to the political implications of shooting a young African-American unarmed male, and the potential liability should the officers be involved in another shooting. The jury found that the City engaged in racial discrimination and awarded the officers nearly four million dollars in damages.

The appellate court ruled that the City's motion for directed verdict should have been granted, because there was no substantial evidence that the City benched the officers because of their race. Instead, the evidence supported a conclusion that the City benched the officers for an unusually long period because of the victim's race. That is what the plaintiffs argued to the jury. That is not employment discrimination.

The court also ruled that the City was entitled to directed verdict on the claim that the City retaliated against the officers for filing the suit by continuing to bench them. A contention that the defendant employer merely continued the allegedly adverse employment action after a lawsuit is filed does not support a retaliation claim.

Police Officers Entitled to Qualified Immunity for Entering Vacant Apartment and for Using Deadly Force against Person Charging with Weapon

In Woodward v. City of Tucson, published September 15, 2017, the 9th Circuit Court of Appeals reversed denial of summary judgment to the defendant police officers on grounds of qualified immunity.  The officers entered an apartment after receiving reports that an evicted tenant was living there.  The officers opened the door to a room from which the sound of a radio came.  The plaintiff's decedent was in the room with the former tenant.  He charged the officers holding the broken-off handle from a hockey stick.  The officers shot and fatally wounded the decedent.  His mother sued the officers.  The officers moved for qualified immunity for the warrantless entry into and seizure of the vacant apartment, and the use of deadly force.  The district court denied summary judgment, holding there were jury issues on whether the entry violated the Fourth Amendment rights of the former tenant and whether the officers violated the Fourth Amendment rights of the decedent by provoking his actions by entering the apartment.

The 9th Circuit held that the former tenant had no expectations of privacy in the apartment, because she had been evicted from it and knew about the eviction.  The decedent therefore had no Fourth Amendment rights against warrantless entry as her guest.  The officers were therefore entitled to qualified immunity against the warrantless entry and seizure claims.  As for the use of force, there was no clearly-established law at the time of the incident (May 2014) establishing that officers could not use deadly force against a person charging them with a weapon.  To the contrary, the Fourth Amendment permits officers to use deadly force to protect themselves against a weapon.  The district court's denial was based on the provocation theory which the U.S. Supreme Court disapproved in County of Los Angeles v. Mendez, 137 S. Ct. 1539 (2017).  The officers were therefore entitled to qualified immunity against the excessive force claim.

To Preserve Qualified Immunity Argument at Trial, Police Officer Must Move for Judgment as a Matter of Law Before the Case Goes to the Jury

In Lam v. City of San Jose, published September 5, 2017, the 9th Circuit Court of Appeals affirmed a district court's denial of a police officer's new trial motion after an $11.5 million verdict against her based on excessive force.  There were competing factual versions of what happened during the defendant officer's shooting of the plaintiff.  A third-party witness testified that when the plaintiff was 10-15 feet away from the officer, he turned his back on her and started to stab himself before the officer shot her.  Among other grounds for new trial, the officer complained that the district court failed to give her requested jury instructions, failed to give special interrogatories to the jury on qualified immunity, and should have ruled for her on qualified immunity.

The 9th Circuit ruled that the officer waived her qualified immunity argument.  Although she moved for summary judgment based on qualified immunity before trial,which was denied based on triable issues of fact, she failed to make a Rule 50(a) (motion for judgment as a matter of law motion before the case was submitted to the jury.  When qualified immunity depends on issues of fact, the defendant must make a Rule 50(a) motion before the case is submitted to the jury to preserve the qualified immunity issue.  She cannot require the court to submit special interrogatories to the jury on qualified immunity and then make a Rule 50(b) motion (revived motion for judgment as matter of law) after the jury answers the interrogatories.  The officer did not have a right to special interrogatories, and further did not submit special interrogatories to the court to give to the jury.  She therefore waived her qualified immunity argument for purposes of new trial and appeal.

Broad License Plate Scan Data Are Not Investigatory Records under the California Public Record Act, but Unredacted Data Are Exempt under the Catch-All Exemption

In ACLU v. Superior Court (County of Los Angeles), published August 31, 2017, the California Supreme Court affirmed in part and reversed in part an appellate court ruling that Los Angeles Police Department and Los Angeles County Sheriff's Department automated license plate reader data are exempt from production under the California Public Record Act. The ALPR cameras are mounted on fixed locations or patrol cars, and automatically capture images of the license plates of each vehicle that passes.  The APLR system checks each plate against a "hot list" of plates associated with crimes, warrants, or Amber Alerts.  When a match occurs, a police unit is notified.  Only a small fraction of plates captured match the hot list.  Both agencies scan over a million plates a week.  The databases are restricted to law enforcement.  When new investigations arise, the agencies scan the database for license plate matches.  The court of appeal ruled that APLR data were exempt from the CPRA under Government Code section 6254, subdivision (f), which exempts investigatory records and investigatory files.  It did not address whether the data were exempt under section 6255, subdivision (a), the "catch-all" exemption.

The Supreme Court held that the investigative record/file exemption did not apply.  The scans are not conducted as part of a targeted inquiry into any particular crime or crimes.  Instead, they are conducted with the expectation that the vast majority of the plates will be irrelevant to law enforcement.  The investigation exemption cannot be applied to such bulk collections of data.  The catch-all exemption does apply to unaltered plate scans, however, because they threaten individuals' privacy concerning specific locations of vehicles on specific dates.  The Supreme Court remanded the case to the lower courts to develop the factual record as to whether it is feasible for the agencies to redact or alter the data to address these concerns.