Government Liability Update

Police and University Officials Entitled to Qualified Immunity for Use of Force Against Students Refusing Orders to Disperse

In Felarca v. Birgeneau, published May 31, 2018, the 9th Circuit reversed denial of summary judgment, on qualified immunity grounds, to multiple police officers and university officials arising out of police use of force against student protesters who violated an order to take down an encampment on campus and disperse. 

Viewing the facts in the light most favorable to the plaintiffs, the 9th Circuit held that two officers who used baton jabs against protesters who formed a human chain and refused to move did not use excessive force under the Fourth Amendment.  The students were not seriously injured, the force used was minimal, and the defendants had a legitimate interest in using minimal force to maintain order and enforce the university's policy.  As to the university officials who allegedly planned the use of force and failed to stop it, the 9th Circuit concluded that the plaintiffs had failed to prove that the supervisors either personally engaged in unconstitutional conduct or were causally connected to the conduct.  Even for the officials within the police chain of command, the plaintiffs failed to link their injuries to individual police officers who were within that chain of commend.  As for the plaintiffs who received baton blows from officers that resulted in hospitalizations, the plaintiffs failed to show that the law was clearly established that use of baton blows under the circumstances (including the number of protesters, and the act of at least one plaintiff in provoking the officers) violated the Fourth Amendment.  

One judge, concurring in the result, disagreed that the use of force was reasonable under the Fourth Amendment, but agreed that the officers were entitled to qualified immunity under the clearly-established-law prong.

Deputies Not Entitled to Qualified Immunity for Using Force during Prisoner Extraction That Violated Eighth Amendment

In Rodriguez v. County, published May 30, 2018, the 9th Circuit affirmed judgment in favor of the plaintiffs after a jury trial in a lawsuit under 42 U.S.C. section 1983 and Civil Code section 52.1.  The jury found that deputy defendants violated the Eighth Amendment by their use of force on inmates during cell extractions, including extensive use of tasers and blows that resulted in broken bones; and that supervisory defendants violated the Eighth Amendment by organizing and supervising the use of force, by observing the use and failing to stop it, or by creating an atmosphere where use of force was tolerated in the jail due to lack of punishment for excessive force.

The 9th Circuit affirmed the district court's denial of qualified immunity.  Evidence supported a finding that the deputies who performed the extractions inflicted severe injuries on inmates who were not resisting, and in some cases unconscious.  The evidence supported the jury's finding that the use of force violated the Eighth Amendment.  The Eighth Amendment inquiry includes both an objective and a subjective standard.  The objective standard addresses whether the force used was excessive and unnecessary under the circumstances.  The subjective standard addresses  whether the force used was applied in a good faith effort to maintain or restore discipline, or maliciously and sadistically for the very purpose of causing harm.  As to the deputies using the force, the law was clearly established at the time (2008) that the level of force used with malicious and sadistic intent violated the Eighth Amendment.  Case law determining reasonable use of tasers was not material, because it was decided under the Fourth Amendment, which uses only an objective standard of reasonableness.  The law also clearly established that the supervisory officers' actions or omissions under the circumstances violated the Eighth Amendment.

The 9th Circuit also affirmed the extracting deputies' liability under Civil Code section 52.1, the Bane Act.  Although violation of the Bane Act requires a showing of the defendant's specific intent to violate the plaintiff's rights, in excessive force cases, including under the Eighth Amendment, the violation does not require coercion beyond that inherent in the constitutional violation.  Discretionary immunity under Government Code section 820.2 did not apply, because it does not apply in excessive force cases.

The 9th Circuit rejected the argument that the plaintiffs failed to exhaust their administrative remedies.  Exhaustion under the Prison Litigation Reform Act is excused if the prisoner proves a genuine fear of retaliation for complaints, particularly if the prisoner is required to submit the complaint to an officer who allegedly injured the prisoner.  The plaintiffs made the required showing.

The district court proceeded to trial while an interlocutory appeal from denial of summary judgment was pending.  While a stay of the trial proceedings during an interlocutory appeal is required unless the appeal is found frivolous, the error was harmless.  The appellants failed to identify proper issues on appeal, so the 9th Circuit concluded the interlocutory appeal was harmless.

The 9th Circuit also affirmed the district court's conclusion that a juror was not impliedly biased due to his relatives' actions and organizational affiliations, particularly since the juror was honest in providing information.

District Court Properly Granted Police Officer Summary Judgment based on Qualified Immunity on Court's Own Motion

In Easley v. City of Riverside, published May 18, 2018, a divided panel of the 9th Circuit Court of Appeals affirmed summary judgment granted to a police officer defendant in a 42 U.S.C. section 1983 excessive-force case.  The plaintiff was an occupant of a car that was driving erratically.  When a police car behind it turned on its lights and siren, the other car initially did not respond.  The car then stopped abruptly, and the plaintiff bolted from the car clutching his waistband.  The defendant and his partner exited their car.  The partner shouted, "Gun" or "He's got a gun."  The plaintiff continued to clutch his waistband with his right hand.  With his left, he pulled an object (later determined to be a gun) from his pocket and flung the item, in a manner similar to throwing a Frisbee, to his left.  Within two to four seconds of plaintiff throwing the gun, the defendant officer shot him three times.  The plaintiff survived.  During the litigation, the defendant officer pleaded the defense of qualified immunity in his answer.  The plaintiff agreed to dismiss some claims, and the defendant officer agreed not to seek summary judgment on the remaining claims.  But the district court judge sua sponte raised the issue of qualified immunity, and ordered an evidentiary hearing on the issue.  After hearing testimony, the judge determined there was no genuine issue of material fact for a jury to determine, and granted the defendant judgment as a matter of law based on qualified immunity.

The majority held that the district court judge had discretion to grant summary judgment on its own motion.  The defendant officer had pleaded the defense, and the agreement not to seek summary judgment was not a waiver of the defense.  The majority further agreed that under the facts viewed in the light most favorable to the plaintiff, the plaintiff's act in throwing the gun like a Frisbee (with his left arm lifting up), and the officer's use of deadly force within seconds afterward, would lead a reasonable officer to believe that the plaintiff was drawing a gun at him; and the use of deadly force did not violate clearly-established law.  The dissenting judge, a district court judge from Iowa sitting by assignment, opined that sua sponte summary judgment should not be granted, and that issues of fact prevented summary judgment based on qualified immunity. 

Pretextual Show-up and Manufactured Statement Leading to Charges Overcome Presumption of Prosecutorial Independence; but Promising Witness Protection Is Not Fabrication of Evidence

In Caldwell v City and County of San Francisco, published May 11, 2018, the 9th Circuit Court of Appeals affirmed in part and reversed in part summary judgment in favor of the defendant officers.  The plaintiff was convicted of murder and sentenced to over 20 years in prison.  He got out of prison on a habeas corpus petition.  He alleged that one of the defendants, a police officer whom the plaintiff had requested an inspection of and who had told the plaintiff, "I'm going to kill you," had conducted a pretextual show-up by taking the plaintiff to the home of a witness to a shooting, asking if the homicide inspector was there, introducing the plaintiff to the inspector, and requesting the inspector's keys even though the defendant officer had a car in the neighborhood.  He further alleged that the defendant officer took a statement from the plaintiff that the plaintiff had been visiting an uncle in the vicinity of the shooting, and falsely wrote in his notes that the plaintiff had stated he was dealing drugs at the time, and was present at the time of the shooting but down the street.  He contended two other defendant officers conducted an unrecorded photo lineup with the suspect so that they could coerce her into picking the plaintiff, and that they further coerced her by offering her protection if she picked one of the suspects in the lineup.  The plaintiff sued the defendants under 42 U.S.C. section 1983 for fabricating evidence.  The district court granted summary judgment on the ground that the prosecutor's decision to charge the plaintiff was presumed to be independent of the alleged fabrications, and that the plaintiff had failed to overcome the presumption.

The 9th Circuit reversed the grant of summary judgment to the officer who had threatened the plaintiff and who alleged staged the pretextual show-up and fabricated the notes.  There is a clearly-established constitutional due process right not to be subject to criminal charges based on false evidence that was deliberately fabricated by the government.  A plaintiff can produce evidence of direct fabrication, or can produce circumstantial evidence related to a defendant's motive.  To use circumstantial evidence, the plaintiff must support either of two propositions:  That defendants continued their investigation even thought they knew or should have known the plaintiff was innocent, or used investigative techniques so coercive and abusive that they knew or should have known they would yield false information.  As to the officer who threatened the plaintiff, the plaintiff alleged direct evidence of fabrication.  There were issues of fact on whether the officer staged the show-up and whether the officer fabricated notes.  The presumption of prosecutorial independence was overcome, because deliberately fabricated evidence in a prosecutor's file can rebut any presumption of prosecutorial independence.  Evidence that the officer knowingly withheld relevant information from the prosecutor can also rebut the presumption.  The prosecutor's consideration of potentially fabricated evidence rebuts any presumption of independent judgment and creates a triable issue for the jury.  There was insufficient circumstantial evidence that the other two defendants fabricated evidence through coercive means.  In particular, offering the witness protection if she testified is not so coercive that it would lead to false testimony.  Summary judgment was affirmed as to those defendants.

Conflict-Of-Interest Statute and Competitive-Bidding Statutes Apply to Personal Services Contracts between Public Entities and Independent Contractors

In Strategic Concepts, LLC v. Beverly Hills Unified School District, published May 10, 2018, the Second District Court of Appeal, Division 6 reversed a judgment, entered after jury trial, that awarded the plaintiff LLC millions in damages for breach of contract. A district employee who administered the planning, construction, and maintenance of the District's school facilities persuaded District officials to change her position from employee to consultant.  She entered into a contract with the District under which her duties remained the same, but her $113,000 salary was replaced by a $130 per hour rate with a maximum compensation of $170,000 per year.  The maximum was not enforced, and the LLC she formed was paid $1.3 million per year in two consecutive years.  The contract was replaced by another one with no limit on compensation.  She pushed through a bond measure that named her company as a consultant, with no other bids taken.  The District then took the position that the contract was void under Government Code section 1090, which forbids conflicts of interest.  The LLC's founder was prosecuted for a criminal violation of section 1090 and found guilty, but her conviction was reversed on appeal, with the court ruling that for purposes of criminal law section 1090 does not apply to independent contractors.  The LLC and its founder sued the District.  The District cross-complained, asserting section 1090 and violation of the competitive-bidding statutes at Government Code section 4525 et seq.  The trial court granted nonsuit on the section 1090 claim, concluding the statute did not apply.  The founder withdrew as plaintiff, leaving the LLC.  The court instructed the jury that section 1090 did not apply.

The appellate court concluded that section 1090 did apply.  In People v. Superior Court (Sahlobei) (2017) 3 Cal.5th 230, the California Supreme Court held that the term "employees" in section 1090 included independent contractors with duties similar to public employees.  The trial court therefore erred in granting nonsuit on the section 1090 claim.  The trial court also failed to give the District's requested instruction on the competitive bidding statutes.  That was also error.  Finally, because the contract with the LLC included a termination-for-convenience clause, if the LLC can prove breach of contract on remand, its damages are limited to compensation for services performed and expenses incurred to the date of termination, lost profits for 120 days after termination, and the equivalent of three months' payment.

Apex Deposition Rule Bars Deposition of Agency Head about Agency's Interpretation of Statutes

In Contractors' State Licensing Board v. Superior Court (Black Diamond Electric), ordered published May 9, 2018, the First District Court of Appeal, Division 1 issued a peremptory writ in the first instance reversing a trial court decision denying a protective order.  After the petitioner board initiated a disciplinary proceeding against the real party electrical contractor, the contractor brought a declaratory relief action seeking the interpretation of various terms in the Labor Code and injunctive relief.  The contractor noticed the deposition of the secretary/chief executive officer of the Board.  The Board sought a protective order to prevent the deposition, on grounds including the apex deposition rule.  The trial court denied the motion, ruling that the officer had direct factual information and was directly involved in relevant issues before he was appointed executive officer.

The appellate court ruled the trial court had erred.  Under the apex deposition rule, California and federal courts generally do not allow parties to take the depositions of high government officials, including heads of boards.  To take such a deposition, the party must show that the official has direct personal factual knowledge pertaining to material issues in the action; and that the information cannot be gained from any other source.  Those showings were not made here.  The rule applies to the deponent here, regardless of whether the information sought was obtained when the deponent served the Board in a lower office.  The contractor did not seek factual information; instead, it sought the officer's opinion on statutory interpretation, which is a legal issue.  The contractor also did not show the information was unavailable elsewhere, since the board had published interpretations of the statutes at issue.

Standards for Determining Policymaker Liability under 42 U.S.C. Section 1983 Also Apply to Municipal Liability under Title VI and 34 U.S.C. section 12601

In United States of America v. County of Maricopa, published May 7, 2018, the 9th Circuit affirmed summary judgment in favor of the United States in a lawsuit to halt racially discriminatory police traffic stop policies instituted by the defendant county's former sheriff, Joe Arpaio.  Under those policies, the sheriff's department routinely targeted Latino drivers and passengers for pretextual traffic stops aimed at detecting illegal immigration. 

The panel affirmed that the sheriff was a final policymaking official for the county.  Then, in issues of first impression, the panel determined that the same standards governing local governments' liability under 42 U.S.C. section 1983 for the acts of policymakers apply to local government liability under  Title VI of the Civil Rights Act of 1964, 42 U.S.C. § 2000d (prohibiting discrimination based on race, color, or national origin in programs that receive federal funding) and 34 U.S.C. § 12601 (authorizing the United States to obtain injunctive and declaratory relief against a governmental authority that engages in a policy and practice of conduct by law enforcement officers that deprives persons of rights protected under federal law).  Because of the similarities between section 1983 and the other two civil rights statutes, applying the same standards for imposing policyholder liability is appropriate.

District Failed to Reasonably Accommodate Probationary Employee, or Engage in Interactive Process, When It Granted Her Medical Leave and Terminated Her While She Was on Leave

In Hernandez v. Rancho Santiago Community College Dist., published May 3, 2018, the Fourth District Court of Appeal, Division 3 affirmed a judgment after bench trial holding that the defendant district failed to reasonably accommodate the plaintiff or engage in an interactive process with her, in violation of the Fair Employment and Housing Act.  In a previous hiring by the district, the plaintiff was injured on the job.  During the hiring at issue, she was a probationary employee.  When she had been working for the district for six months, her doctor recommended surgery for conditions caused by the workplace injury.  She spoke to the district's risk manager, and told him she was concerned that she would lose her job if she had the surgery during her probationary period.  He told her she could not be fired on a workers compensation case.  She said that if he had told her differently, she would have put off her surgery until after her probationary period.  She estimated she would be off work three to four months.  The district granted her medical leave.  While she was on leave, the district terminated her employment.  When she called human resources, she was told that she should have known better than to take personal leave while on probation.  She was not told she could reapply for her position.  The district argued that it had reasonably accommodated the plaintiff by giving her medical leave, and that under Education Code section 88013(a) it had to terminate her after twelve months' probation or else she would have become a permanent employee without having undergone evaluation.

The appellate court agreed with the trial court that the district was liable under FEHA for not reasonably accommodating the plaintiff.  It held that the district could have deducted from the statutory probationary period the time that the plaintiff was on medical leave.  Because it did not, it failed to reasonably accommodate her.  The appellate court also agreed with the trial court that the district failed to participate in a good faith interactive process with the plaintiff.  Telling the plaintiff she could not be fired while on medical leave, and then firing her while she was on leave, was not acting in good faith.  Nor was rebuffing the plaintiff when she contacted human resources for an accommodation.

Water District Cannot Be Held Liable in Nuisance or Inverse Condemnation for Damage to Pipes from Water That Meets Federal and State Regulatory Standards

In Wlliams v. Moulton Niguel Water District et al., published May 3, 2018, the Fourth District Court of Appeal, Division 3 affirmed judgment granted to the defendant water district after a bifurcated bench trial.  The plaintiff class of homeowners alleged that the district's addition of chloramine to the water the homeowners were receiving caused pinhole leaks in copper piping through corrosion.  The class alleged that the district was liable for maintaining a nuisance, and for inverse condemnation.  The district's water complied with all federal and state drinking standards, and all federal and state tests for determining the corrosivity of drinking water, at all relevant times.

The appellate court held that the district was immune from nuisance liability under Civil Code section 3482, which provides that nothing done under the express authority of a statute can be a nuisance.  The statute applies not only to the authority of statutes, but also regulations and other government approvals.  The immunity applies because the district had a permit from the California Department of Health Services expressly allowing it to use chloramines, and because regulations specifically allowed use of chloromines in the amount the district used.  The appellate court further determined that the district could not be held liable for the damage to the water pipes, even assuming that it was caused by the chloramines.  Allowing inverse condemnation liability for what was essentially a products liability claim would expand inverse condemnation compensation beyond the traditional realm of eminent domain, for two reasons.  First, the district is not singling out members of the public to bear a cost that the public should share.  Instead, the cost is shared by all of the homeowners receiving the water.  Second, inverse condemnation based on water is based on the water not being welcome on the homeowner's property.  By contrast, here the homeowners invited the entry of the water, by purchasing it from the district.

Although Enforcement of California Medical Waste Statute on Disposal of Waste outside California Violates Dormant Commerce Clause, Officials Entitled to Qualified Immunity for Enforcement Decision

In Daniels Sharpsmart v. Smith, published May 2, 2018, the 9th Circuit Court of appeals affirmed a district court decision to issue a temporary restraining order against the California Department of Public Health's enforcement of the California Medical Waste Management Act, but reversed denial of the department's officials' motion to dismiss based on qualified immunity.  The plaintiff is an Illinois corporation that handles transport and treatment of medical waste.  The corporation does business in California, and is regulated under the MWMA. Under the MWMA, California generated medical waste generally must be incinerated.  The plaintiff transported waste generated in California to other states, where means of disposal other than incineration are allowed.  The Department took the position that the MWMA governed the plaintiff's disposal of medical waste in other states.  The Department issued a notice of violation and imposed a monetary penalty on the plaintiff.  The plaintiff sued the Department officials in federal district court, and obtained a TRO against enforcement of the MWMA on disposal of waste out of state.

The 9th Circuit upheld the TRO.  It agreed with the district court that the plaintiff was likely to prevail on his claim that the enforcement of the MWMA on disposal of waste outside California violated the Dormant Commerce Clause, the interpretation of the Commerce Clause to bar states from unjustifiably burdening interstate commerce.  But the officials were entitled to qualified immunity against any damages liability for enforcing the statute.  The law was not clearly established that enforcement of the MWMA on disposal of medical waste generated inside California, but disposed of outside California, was unconstitutional.