Government Liability Update

Police Interruption of Prayer for Valid Law Enforcement or Investigation Purpose Does Not Violate First Amendment

In Sause v. Bauer, published June 28, 2018, the U.S. Supreme Court, per curiam, reversed a Circuit Court decision affirming dismissal of a suit against police officers under 42 U.S.C. section 1983.  The plaintiff, suing pro se, alleged that officers investigating a noise complaint gained entrance to her apartment and engaged in abusive behavior.  One allegation was that when the plaintiff knelt and began praying, one of the officers ordered her to stop.  The complaint alleged violation of the plaintiff's rights under the First and Fourth Amendments.  The district court dismissed the complaint based on qualified immunity.  On appeal, the plaintiff, represented by counsel, argued only that the officers interfered with her right to free exercise of religion.  The circuit court affirmed on the ground of qualified immunity.

The court ruled that while prayer is the exercise of religion, there are circumstances where an officer may lawfully prevent a person from praying at a particular time and place.  For instance, a suspect ordered to enter a police vehicle during an arrest cannot delay transport to jail by praying.  Where a police officer's order to stop praying occurs during a police investigation, the First and Fourth Amendment rights may become inextricable.  Here, the plaintiff's complaint did not explain whether the officers were in the plaintiff's apartment with or without her consent, whether they had a legitimate law enforcement ground for being there, or what if anything the officers wanted her to do when they ordered her to stop praying.  Although the plaintiff proceeded only on her First Amendment claim on appeal, that claim could not be analyzed without considering whether the officers had valid grounds under the Fourth Amendment for their actions.

Public Retirement System Immune from Tort Liability for Seeking Repayment of Pension Overpayments

In Krolikowski v. San Diego City Employees' Retirement System, published June 14, 2018, the Fourth District Court of Appeal, Division 1 affirmed judgment after a bench trial in favor of the defendant retirement system.  Decades after the plaintiffs, retired city employees, began drawing pensions, SDCERS determined that it had calculated the pensions incorrectly, and was overpaying the plaintiffs.  SDCERS informed the plaintiffs they would have to pay back the excess amounts, and that their payments henceforth would be reduced to the correct amounts.  Both plaintiffs pursue administrative appeals.  The plaintiffs sued SDCERS for conversion, breach of fiduciary duty, declaratory relief, and writs of ordinary mandamus (Code of Civil Procedure section 1085).  The trial court sustained demurrers on the tort causes of action, and then ruled for SDCERS on the remaining causes of action.

The appellate court affirmed the judgment on the tort causes of action on the ground of statutory immunity. The decisions to recover the overages were policy-level exercises of discretion that were protected by the discretionary immunity, Government Code section 820.2.  SDCERS was therefore entitled to the immunity under Government Code section 815.2, subdivision (b) (vicarious liability of public entity subject to any immunity that protects the employees for whose acts or omissions the entity is liable).  The court rejected the argument that the torts were not subject to immunity because they were based on provisions of the state constitution.  Since the state constitution did not create the conversion or fiduciary duty causes of action the plaintiffs asserted, the claims were based on common law, and thus subject to the Government Code immunities.  The court further held that the evidence in the case supported the trial court's ruling that no writ relief was appropriate, and that SDCERS was not equitably estopped from seeking the repayments.

Plaintiff Need Not Show Lack of Probable Cause to Prove Public Entity Violated First Amendment Petition Rights by Retaliatory Arrest

In Lozman v. City of Riviera Beach, Florida, published June 18, 2018, the U.S. Supreme Court reversed and remanded a judgment for the defendant city after a jury trial.  The plaintiff was an outspoken critic of the city.  After the plaintiff filed a lawsuit against the city, the city council held a closed-door meeting on the lawsuit and others.  A councilmember suggested that the city "intimidate" the plaintiff and others who sued the city.  Other councilmembers appeared to agree.  Later that same year, the plaintiff spoke at the public comment segment of a council meeting.  The plaintiff spoke about a subject and was told to stop. He continued, and was arrested.  The state's attorney determined there was probable cause to arrest him, but decided to dismiss the charges.  The plaintiff sued the city under 42 U.S.C. section 1983 for retaliatory arrest.  The district court instructed the jury that for the plaintiff to prevail on that claim, he had to prove that the officer lacked probable cause to make the arrest.  The jury returned a verdict for the defendants.  The issue before the court was whether the existence of probable cause bars a First Amendment retaliatory arrest claim.

The court declined to address the broad question of whether the existence of probable cause negates a claim for retaliatory arrest.  Instead, it ruled that in a case where the plaintiff alleges that the muncipality itself (rather than an officer) retaliated against him, under an official municipal policy of intimidation, executing a pre-meditated plan of intimidation in retaliation for the plaintiff exercising high-value speech such as the freedom to petition government (by filing lawsuits), the plaintiff need not prove lack of probable cause.  Instead, the Mt. Healthy City Bd. of Ed. v. Doyle, 429 U.S. 274 (1977) standard will apply, and the plaintiff must prove that retaliation was a but-for cause of the arrest.

Justice Thomas dissented.  He would not have narrowed the analysis, and would have ruled that the existence of probable cause to arrest barred the retaliatory arrest claim.

 

Public Defender Was Not Driving in the Scope of His Employment when Driving Personal Vehicle Home from Office

In Newland v. County of Los Angeles, published June 18, 2018, the Second District Court of Appeal, Division 5 reversed denial of a defense motion for judgment notwithstanding the verdict in an auto accident case.  The driver was a county public defender who worked in the Norwalk courthouse, and commuted from Long Beach.  He needed his personal vehicle for work from time to time, when trying cases in branch courts, meeting clients in jail, and inspecting crime scenes.  On days when he needed his car, he brought it.  When he did not, and public transit was available, he took it.  On the day of the accident, he did not need his car for work.  Convenient public transit was not available from his home in Long Beach.  Driving from the courthouse home at the end of the day, he was involved in the subject accident.  The jury found that the driver was driving in the scope of his duty, and awarded damages against the employer county.

The court reversed the finding that he was driving in the scope of his duties, because no evidence supported it.  Generally an employee is not acting within the scope of his duties when driving his personal vehicle to and from work.  The exceptions are where the employee is using his personal vehicle for work purposes, and where the employee's use of his personal vehicle provides his employer with a benefit.  Here, while the driver occasionally used his personal vehicle for work purposes, he did not have to do so that day. He did not have any emergency situations that required him to have a vehicle available. There was no evidence that he was required to drive to and from work on the day of the accident for work purposes.  Driving to and from work was not driving within the scope of his employment.

The court split on whether the case should be remanded to determine whether the driver's use of his vehicle benefited the county.  The majority ruled no remand was necessary.  There was no evidence that the county received a benefit from the driver's use of his car to drive to and from work on a day when he did not need his vehicle available for work purposes.  A dissenting justice opined that the benefit issue should go to the jury.

Law Forbidding Political Apparel at Polling Place Unconstitutionally Indefinite

In Minnesota Voters Alliance v. Mansky, published June 14, 2018, the U.S. Supreme Court reversed an Eighth  Circuit decision upholding a Minnesota law prohibiting individuals from wearing a political badge, political button, or other political insignia inside a polling place.  The Court held that a polling place is a nonpublic forum for First Amendment purposes.  Therefore, the First Amendment permits the state to regulate speech there based on content, so long as the restrictions are reasonable and not an effort to suppress expression merely because public officials oppose the speaker's views.  The statute does not make a distinction based on the speaker's views.  It must therefore only be reasonable in light of the purpose served by the forum:  Voting.  A restriction on political apparel serves the legitimate purpose of protecting voters from fraud, intimidation, and confusion.  But the term "political" is too indefinite to provide a reasonable guideline on what is permitted and what is excluded.  By contrast, other states--including California--have more definite restrictions on political apparel.

Dissenting justices would have sent the law to the Minnesota State Courts to interpret it.

Officers Entitled to Qualified Immunity for Using Lethal Force against Erratically-Behaving Suspect Who Charges Them with Stabbing Weapon

In Vos v. City of Newport Beach, pubilshed June 11, 2018, a divided panel of the 9th Circuit Court of Appeals affirmed in part and reversed in part summary judgment granted to a city and two of its police officers in a police shooting case. Because the undersigned's firm represented the defendants in the case, the undersigned will refer readers to the text of the case rather than summarizing the holding.

Because Eleventh Amendment Bars Administrative Mandamus Petition against State in Federal Court, Suit against State University Barred by Failure to Exhaust Judicial Remedies

In Doe v. Regents of University of California, published June 6, 2018, the 9th Circuit Court of Appeals reversed denial of a motion to dismiss a suit against the Regents of the University of California and the Assistant Dean of Students at one of the UC universities.  The plaintiff, a university student, was suspended for alleged sexual assault of a fellow student.  The university held an administrative hearing before suspending him.  The plaintiff initially sued the Regents under Title IX, under 42 U.S.C. section 1983 (for denial of procedural due process), and under various state claims.  The district court granted a motion to dismiss the state law claims, on the ground that the plaintiff had not yet exhausted his judicial remedies by filing a Code of Civil Procedure section 1094.5 petition for writ of administrative mandamus challenging the administrative decision.  It dismissed the Title IX claim for failure to state a claim, and the section 1983 claim as barred by the Eleventh Amendment.  The plaintiff filed a first amended complaint that dropped the state law claims, added a section 1094.5 claim, reasserted the Title IX claim with additional allegations, added the assistant dean and asserted the section 1983 claims only against the assistant dean.  The district court dismissed the Title IX claim with prejudice and the section 1983 claim as barred by the Eleventh Amendment, and declined to exercise jurisdiction over the section 1094.5 claim.  The plaintiff filed a second amended complaint stating that the assistant dean was sued under section 1983 only in her official capacity, and reasserting the section 1094.5 claim.  The court denied a motion to dismiss.  The defendants took an interlocutory appeal.

The 9th Circuit ruled that the Eleventh Amendment barred the section 1094.5 claim.  Although there is an exception to the Eleventh Amendment for prospective injunctive relief, that exception does not apply when the state (or state instrumentalities, such as the Regents) is sued under state law.  A section 1094.5 claim is not just a procedural vehicle; it raises substantive state law claims.  Further, the complaint sought attorney fees under Government Code section 800(a), which applies when a complaint seeks relief under state law.  Since the only claim under state law was the section 1094.5 claim, he was seeking substantive relief.  The plaintiff therefore could not exhaust his judicial remedies in the federal lawsuit.  His Title IX and section 1983 claims were therefore barred by failure to exhaust judicial remedies.  Unless overturned by a writ of administrative mandamus under section 1094.5, the administrative decision had preclusive effect that barred his federal claims.

Split Opinion: Justice Court's Decision on TRO Has Issue Preclusive Effect on Section 1983 Claim for Unreasonable Search

In Pike v. Hester, published June 6, 2018, a divided panel of the 9th Circuit Court of Appeals affirmed summary judgment in favor of the plaintiff in a 42 U.S.C. section 1983 lawsuit arising out of a dog search of the plaintiff's office.  The plaintiff, a county employee and football coach, had an acrimonious relationship with the defendant, a sheriff's sergeant.  The defendant allegedly received information that there was drug activity at the city recreation center where the plaintiff had an office.  The defendant pulled over the county director of public works--the plaintiff's boss--and asked the director if he would care if the defendant searched the center.  The director testified he responded that if the defendant needed to search the center, he should call the director and the director would let him in.  The defendant testified that the director gave him unconditional permission to enter the center.  The defendant, off-duty and in civilian clothes, then led a night-time search of the center.  As part of the search, the defendant unlocked the door to the plaintiff's office, entered with a k-9 officer and the officer's dog, and conducted a dog-sniff search of the office.  After further acrimony between the parties, the plaintiff sought a temporary restraining order in a Nevada justice court.  After a one-day trial, the court issued the TRO.  The court found that the defendant did not have lawful authority to search the plaintiff's office, and that it could not conclude on the record before it that the defendant had probable cause for the search.  The court stated it could not conclude the search was lawful under the Fourth Amendment.  The plaintiff then sued the defendant in federal court.  The district court granted the plaintiff summary judgment against the defendant.  The district court ruled that the TRO hearing's result had issue preclusive effect as to the lack of authority for the search, but not on violation of the Fourth Amendment.  The district court nevertheless ruled that the search violated the Fourth Amendment, and that the defendant was not entitled to qualified immunity.

The 9th Circuit majority affirmed, but on a different ground:  It concluded that the TRO ruling did have issue preclusive effect.  By ruling that the search was conducted without a warrant and without lawful authority, the justice court necessarily ruled that the search violated the Fourth Amendment.  The issue-preclusion standards under Nevada law were met.  The majority further ruled that the defendant was not entitled to qualified immunity.  At the time of the search, it was clearly established that government employees enjoyed a reasonable expectation of privacy in their offices, and that dog-sniff searches were subject to Fourth Amendment protection.

One judge dissented.  He opined that the decision should not have issue-preclusive effect, because the justice court hearing was conducted informally, the parties did not have the same incentive to litigate as in a suit for damages, the plaintiff expressly declined to argue the Fourth Amendment was violated in the hearing, and the plaintiff did not argue issue preclusion in the federal action.  Further, the Fourth Amendment issue turned on a disputed issue of fact:  The scope of permission the plaintiff's boss gave the defendant.

Civilians Responding to 911 Call Engaged in Active Law Enforcement for Worker's Compensation Purposes, Despite Officer's Alleged Misrepresentations of Fact

Update:  The California Supreme Court granted review of this case sua sponte.  On August 27, 2020, the Supreme Court affirmed the appellate court's decision.  Two justices dissented.

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In Gund v. County of Trinity, published June 4, 2018, the Third District Court of Appeal affirmed summary judgment granted to the defendant county and a sheriff's deputy on the ground of Worker's Compensation as the plaintiffs' exclusive remedy.  A CHP dispatcher received a 911 call in which the caller whispered, "Help me" and gave her location.  The dispatcher conveyed the information, and her belief that the caller was trying to avoid being overheard, to the county sheriff's department.  The county dispatcher tried to call the number back.  There was no response.  The county dispatcher passed the information on to the defendant deputy.  The deputy called the plaintiffs, who were neighbors of the caller.  The deputy told the plaintiffs that the caller had called for help, likely due to the inclement weather.  He asked the plaintiffs to go check on her.  He told them it was "probably no big deal." He told the female plaintiff not to go without her husband. The plaintiffs arrived at the scene.  The caller and her boyfriend were there, murdered.  The presumed murderer attacked and injured the plaintiffs.  The trial court granted summary judgment based on the exclusive remedy of Worker's Compensation.  It relied on Labor Code section 3366, under which a person engaged in assisting a peace officer in active law enforcement is deemed to be an employee of the public entity and entitled to receive Worker's Comp benefits.

The appellate court analyzed the language and history of section 3366, as well as other statutes on similar subjects, and concluded the trial court was correct.  Regardless of whether the plaintiffs were misled into checking on the caller, responding to a 911 call is active law enforcement.  The plaintiffs were therefore covered by section 3366, and could not sue the county or the deputy under state law.  The court expressed no opinion concerning the plaintiffs' parallel federal court action under 42 U.S.C. section 1983.