Government Liability Update

Billboard Ordinance's Exclusion of Noncommercial Signs Is Constitutional

In Contest Promotions v. San Francisco, amended October 23, 2017, the 9th Circuit affirmed the district court's dismissal of a 42 U.S.C. section 1983 challenge to the constitutionality of a city's billboard ordinance.  The city's planning code differentiated between general signs (which direct attention to business that takes place elsewhere than on the premises where the sign stands) and business signs (which direct attention to business conducted on the premises where the sign is located). The code bars all general signs erected after March 2002. The planning code differentiates between commercial and non-commercial signs, setting forth a non-exclusive list of types of noncommercial signs; and provides that the provisions concerning general and business signs do not apply to non-commercial signs.  Plaintiff, which posts commercial signs, challenged the code's differentiation between commercial and non-commercial signs as violating the First Amendment.

The 9th Circuit ruled that the code did not violate the First Amendment.  Since the portions differentiating between business and general signs excluded non-commercial signs, the level of scrutiny that applies to commercial speech--intermediate--applies.  The code met the requirements of intermediate scrutiny, because it directly served the governmental interests in promoting traffic safety and aesthetics, and was no more extensive than necessary to serve that interest.

Continuously Tasing a Prone, Non-Threatening Suspect for Ninety Seconds Violates Clearly-Established Law

In Jones v. LVMPD, published October 20, 2017, the 9th Circuit Court of Appeals reversed in part and affirmed in part summary judgment granted to the defendant police officers.  One of the officers stopped the vehicle the decedent was driving.  The officer ordered the decedent out of the car to be patted down.  The decedent started to comply, then turned toward the officer. The decedent was much larger than the officer. The officer drew his firearm and ordered the decedent to turn back around.  The decedent ran from the officer.  The officer fired his taser twice.  The decedent's body locked up and he fell to the ground with his hands beneath him.  The officer knelt on the decedent's back and tried to handcuff him.  The officer kept his taser pressed to the decedent's thigh and repeatedly pulled the trigger.  Four officers arrived as backup.  The defendant officer continued to tase the decedent, and another defendant officer tased the decedent's back.  The decedent was tased continuously for ninety seconds by the first officer, and tased intermittently by the other defendant officer for ten of those seconds.  The decedent died.  The coroner concluded that police restraint techniques, including the tasing, contributed to the death.  The district court granted the officers summary judgment on a procedural error in naming the decedent's estate and his father as plaintiffs, instead of naming the father as the estate's administrator as plaintiff.

The majority of the 9th Circuit panel ruled that the district court abused its discretion in declining to allow the plaintiffs to cure the procedural defect.  The full panel then addressed the qualified immunity grounds for summary judgment on the merits.  The court concluded that, viewing the facts in the light most favorable to the plaintiffs, applying a taser continuously for 90 seconds to a prone suspect who posed no immediate threat violated the Fourth Amendment, and that the law on the subject was sufficiently clearly established that no reasonable officer would have believed the use of force to be reasonable.  The court affirmed the summary judgment granted on the father's Fourteenth Amendment claim, because the claim required that the officers act for a purpose other than legitimate law enforcement and there was no evidence of any such purpose.  One judge dissented from the majority's conclusion on the procedural plaintiff-naming issue, but concurred with the majority on the qualified immunity issues.

Divided 9th Circuit Panel Holds That the Clearly-Established-Law Prong of Qualified Immunity Is Issue for Court, Not Jury

In Morales v. Fry, published October 16, 2017, a divided panel of the 9th Circuit Court of Appeals reversed in part and affirmed in part a judgment after jury trial in a 42 U.S.C. section 1983 suit against two police officers.  During a protest, Officer Rees put his hand on the plaintiff's shoulder to get her attention.  The plaintiff pulled her arm away abruptly and told the officer not to touch her.  Officer Rees lost sight of the plaintiff.  Later, the plaintiff turned Officer Fry's bicycle handlebar so that she could pass through a tight spot.  Officer Fry testified that she felt what she perceived to be a punch to her chest.  She believed the plaintiff had punched her. She yanked the plaintiff headlong over the bike, causing the plaintiff to fall on her back on top of other bikes.  Multiple officers converged on the plaintiff while she was down.  When the plaintiff started to stand up, Officer Rees, who had not been involved in the altercation, sprayed pepper spray into the plaintiff's eyes. The plaintiff was arrested and charged with the blow that Officer Fry perceived.  The charges were later dismissed. The plaintiff sued both officers. The district court denied summary judgment, based on factual disputes about what happened in the plaintiff's encounters with the officers.  At the close of evidence, the district court denied the officers' motion for a directed verdict.  The court's instructions to the jury included asking them whether the officers reasonably believed that their actions (Fry's arrest of the plaintiff and the officers' use of force) was lawful.  The jury found for the plaintiff on her excessive force claim against Officer Rees, but not on her excessive force and unlawful arrest claims against Officer Fry.  The plaintiff obtained nominal damages and attorney fees against Officer Rees.  Both sides appealed the judgment.

The majority decision reversed the judgment against the plaintiff concerning Officer Fry.  Rejecting previous 9th Circuit decisions as contrary to U.S. Supreme Court law, and following the majority of circuits, the majority concluded that the prong of qualified immunity that asks whether an officer violated clearly-established law is an issue for the court, not the jury, to decide.  By asking whether the officers reasonably believed they were violating the law, the court was asking the jury to decide whether the officers violated clearly-established law.  The error was not prejudicial, because the special verdict asked the jury whether the officer violated the plaintiff's constitutional rights regarding arrest and excessive force, and the jury answered, "no."  The verdict did not reveal whether the jury based its decision on the clearly-established prong of qualified immunity.  The district court should have the jury resolve the factual issues, and then decide as a matter of law whether the officers violated clearly established law.  The district court may either submit interrogatories to the jury, to ask them to resolve the factual issues, or use a general verdict and then resolve all factual disputes in favor of the prevailing party.  The error was harmless as to Officer Rees, and the district court properly denied his motion for JNOV.  The jury could have determined that he used pepper spray in retaliation, rather than as a reasonable use of force, and such a use would violate clearly-established law.

The dissenting judge opined that the jury instructions were proper, and that the plaintiff failed to preserve her claim that they were erroneous.

Final Decisions in Workers' Compensation Cases in Which Public Employer Disproved Discrimination Preclude Separate FEHA Actions

In Ly v. County of Fresno, published October 12, 2017, the Fifth District Court of Appeal affirmed summary judgment granted the defendant county in a Fair Employment and Housing Act discrimination case brought by three correctional officers.  The officers pursued the FEHA action and workers' compensation proceedings simultaneously, with both arising out of alleged employment discrimination based on their race.  In the workers' compensation proceedings, the county established the affirmative defense that the county's actions were non-discriminatory, good faith personnel decisions.  After the workers' compensation proceedings were final, the county moved for summary judgment in the FEHA action, asserting that the results were res judicata and collateral estoppel on whether the county engaged in employment discrimination against the plaintiffs.  The trial court granted the motion.

The appellate court agreed that res judicata barred the FEHA action.  Workers' compensation is not the exclusive remedy for an employee who alleges racial or national discrimination; the employee may pursue a workers' compensation claim for psychiatric injury from the alleged discrimination, a FEHA action, or both.  In the workers' compensation claim, the employer may raise the affirmative defense that the psychiatric injury was caused by a lawful, nondiscriminatory, good faith personnel action.  The same primary right was at stake in both the workers' compensation and FEHA actions:  recovery for the psychiatric injuries caused by the allege discrimination.  When two tribunals have jurisdiction, and neither party objects to the tribunals' jurisdiction, the first final decision from one tribunal becomes res judicata in the second tribunal.

Although California Public Employment Is Statutory Rather Than Contractual, Public Employees May Bring Federal Claims for Contract-Related Discrimination

In Flores v. City of Westminster, published October 11, 2017, the 9^th Circuit Court of Appeals affirmed a judgment after jury trial holding current and former police chiefs liable for alleged racial discrimination and retaliation under 42 U.S.C. section 1981.  Section 1981 prohibits discrimination in the making and enforcement of contracts by reason of race, including color or national origin differences.  The plaintiff officers alleged that they were discriminated and retaliated against because they were Latino.  The defendant chiefs argued that the district court should have dismissed the section 1981 claims, because under California law the employment relationship between the state and its civil service employees is governed by statute, not contract.  They further argued that they could not be held liable under section 1981 because the employment relationship was between the defendant city and the officers, rather than between the chiefs and the officers.

In an issue of first impression, the 9^th Circuit concluded that section 1981 applies to California public employment.  California state courts have established that a public employer who performs services while a statutory provision creating terms and conditions of employment is in effect obtains a right, protected by the contract clause, to require the public employer to comply with the prescribed condition.  California law therefore weighs in favor of allowing public employees to bring section 1981 claims.  Further, reading California law to bar all public employees from bringing section 1981 claims would hinder the preeminent federal interest in preventing racial discrimination.  The chiefs’ argument that any section 1981 claim lies only against the city fails because case law permits individual liability under section 1981.

Disputed Facts on Whether Unarmed Decedent Raising Hands Assumed a Shooter's Stance Prevent Summary Judgment for Police Officer Who Shot Decedent

In Longoria v. Pinal County, published October 10, 2017, the 9th Circuit Court of Appeals reversed a district court's grant of summary judgment to a police officer who shot an unarmed suspect in the back.  The decedent led police officers on a chase while acting erratically.  His car was stopped by a PIT maneuver.  Officers repeatedly observed him during the chase and announced that he did not have a gun.  After the decedent got out of the car, he did not comply with orders to show his hands.  The supervising officer ordered use of less-lethal weapons.  Officers shot decedent with beanbag rounds and a taser dart.  The decedent turned toward his car--away from the defendant officer--and raised his empty hands over his head.  The defendant officer then fired two rounds into the decedent's back from 25 to 45 feet away.  The officer testified that he saw the decedent assume a shooter's stance.  No other officer present saw such a stance.  There was video of the incident.  The district court, relying on a frozen frame of the video, agreed that a reasonable officer could have perceived a shooter's stance, and granted the defendant officer summary judgment based on qualified immunity.

The 9th Circuit held that the district court erred, because the evidence and circumstances raised genuine issues of fact on whether the decedent assumed a shooter's stance, and the district court improperly resolved those disputes in the officer's favor rather than the decedent's.  The district court should not have relied on a frozen frame of the video, where the officers would have perceived events in real time and the videos, shot in real time, did not establish that the defendant officer was correct or credible.  If the officer shot an unarmed suspect who posed no immediate threat, it was clearly established that the shooting would violate the Fourth Amendment.  The officer was therefore not entitled to qualified immunity.

The First Amendment Bars Prisons from Retaliating against Prisoner for Presenting Informal Grievances Threatening Civil or Criminal Litigation

In Entler v. George, published October 6, 2017, the 9th Circuit Court of Appeals reversed in part and affirmed in part a district court's dismissal of a pro se prisoner's lawsuit under FRCP 12(c).  The Washington State Department of Corrections established an offender grievance program that encourages prisoners to try to informally resolve their issues before filing a formal grievance, by submitting a "kite" (a letter on a pre-printed form) to the officer implicated in the issue.  The plaintiff prisoner sent multiple kites to various prison employees, threatening to sue them for various issues, and in one case threatening to file criminal charges against the penitentiary superintendent and a manager if they did not fire an employee.  Prison officials punished the plaintiff with discipline.  The plaintiff sued prison officials for First Amendment retaliation.  The district court judge ruled that the kites were not protected by the First Amendment, and that in the alternative the officials were protected by qualified immunity.

The 9th Circuit ruled that grievances, whether formal or informal, and threats to sue were protected by the First Amendment, and that legitimate penological interests did not permit prison officials to punish that speech.  Further, existing precedent clearly established that the punishment would violate the First Amendment.  The officials were therefore not entitled to qualified immunity for punishing the threats to sue. The court also ruled, as a matter of first impression, that the First Amendment also protected the threat to file criminal charges from punishment.  But because the law did not clearly establish that right, the officials were entitled to qualified immunity as to that portion of the plaintiff's claim.

Deputy Entitled to Qualified Immunity for Tasing then Shooting Mentally Ill or High Assailant Who Was Beating the Officer

In Isayeva v. Barry, published on October 2, 2017, the 9th Circuit Court of Appeals reversed a district court decision denying summary judgment to a sheriff's deputy who tased and then fatally shot the plaintiff's decedent.  The deputies received domestic disturbance calls from the decedent's brother-in-law and the decedent himself.  The brother-in-law reported that the decedent might be mentally ill, might be on methamphetamine, was hearing voices in his head, and refused to move out.  The decedent showed signs of drug use, and was agitated.  The officers attempted to detain the decedent for 72-hour mental health observation.  He fought the officers, and threw or bucked the defendant officer into a wall.  The defendant officer used his taser in dart mode, which did not stop the decedent.  The decedent, who was larger than the deputies, began beating the defendant deputy, who was beginning to pass out.  The deputy yelled, "Shoot him," and then fatally shot the decedent.  The district court denied the deputy's summary judgment motion, ruling that material issues of fact defeated qualified immunity.

The 9th Circuit ruled that genuine issues of fact about what happened did not defeat summary judgment based on qualified immunity, so long as the undisputed facts, combined with the disputed facts interpreted in the light most favorable to the plaintiff, established that the deputy was entitled to qualified immunity.  Here, interpreting the facts in that manner, the law did not clearly establish that an officer who tased and then fatally shot a suspect violated clearly-established law.  First, no case law dealing with tasing suspects held that an officer under similar circumstances--facing a resisting suspect who was physically larger, hearing homicidal voices, and who bucked the officer off--violated the Fourth Amendment by using a taser once in dart mode.  Second, no case law held that an officer violated the Fourth Amendment by using deadly force under similar circumstances--a mentally ill or high suspect who had not been stopped by a taser and who was beating an officer unconscious, posing the risk that the suspect would take the officer's gun once the officer was knocked out.  That "Shoot him" was yelled also gave the decedent warning that he would be shot if he persisted.