Government Liability Update

The California Public Records Act Does Not Compel Agencies to Create New Records

In Sander v. State Bar of California, published August 23, 2018, the First District Court of Appeal, Division 3 affirmed the trial court's decision upholding the California State Bar's denial of a California Public Records Act request for information from the bar admissions database for individually unidentifiable records for all applicants from 1972 to 2008 in such categories as race and ethnicity, law school, GPA, etc.  The petitioners proposed a number of protocols for rendering data anonymous, such as setting up a data enclave housing data stripped of identifiers that could be accessed only by select persons, recoding and binning, "k-anonymity," or mathematical standardizations.  The trial court denied disclosure on multiple grounds, including that the disclosure under any of the protocols requires the creation of a new record.

The appellate court agreed with this ground.  While the CPRA requires agencies to provide access to their existing records, it does not require them to create new records to satisfy a request.  Requiring the Bar to recode its existing data would require it to create new records.  Public agencies can be required to gather and segregate disclosable electronic data from nondisclosable exempt information, and perform data compilation, extraction, or computer programming if necessary to produce a copy of the record.  But they cannot be required to undertake extensive manipulation or restructuring of the substantive content of a record such as petitioners proposed here.  It cannot be required to change the substantive content of an existing record, or replace existing data with new data.

Detective Violated Clearly-Established Law by Failing to Reveal to Prosecutor That Police Officer Sister of Key Witness Believed Sister to Be Liar

In Mellen v. Winn, published August 17, 2018, the 9th Circuit Court of Appeals reversed summary judgment in favor of the defendant police detective.  When the detective was the lead investigator of a murder, a key witness told the detective that the plaintiff had confessed to involvement in the murder.  One of the detective's fellow police officers was a sister of the key witness.  There was evidence (which the detective disputed) that the officer told the detective her sister was the biggest liar she had ever met in her life, and that she never believed anything the sister said.  The detective did not inquire further into the basis for the officer's opinion about her sister.  The detective did not communicate these remarks to the prosecutor.  At the criminal trial, there was extensive evidence that the key witness was not credible.  The jury nevertheless convicted the plaintiff.  She was sentenced to life without possibility of parole.  She served almost two decades of her sentence until the officer's account of her sister's credibility came to light, and evidence was uncovered that exonerated the plaintiff.  She sued the detective for violating her constitutional right to due process by failing to comply with the detective's obligation under Brady v. Maryland, 373 U.S. 83 (1963), and Giglio v. United States, 405 U.S. 150 (1972) not to withhold impeachment evidence.  The district court granted the detective summary judgment based on qualified immunity.

The 9th Circuit held that, as a matter of law, the detective withheld material impeachment evidence under Brady and Giglio.  Since the key witness's testimony was the only evidence that linked the plaintiff to the murder, and the witness's testimony that the plaintiff confessed to the murder was so powerful, evidence that a police officer sibling considered the witness an untrustworthy liar was material.  Even though there was other evidence at the criminal trial putting the witness's credibility at issue, that did not relieve the detective of the duty to turn over all material impeachment evidence.  The appellate court found a triable issue of fact on whether the detective was deliberately indifferent to her duties under Brady/Giglio.  Her failure to investigate further, evidence the detective embellished the witness's written statement by adding details not described in the witness's written statement, and other actions demonstrating arguable overzealousness raised a jury issue on whether the detective was deliberately indifferent.  The 9th Circuit also held that the district court abused its discretion in excluding the opinion of the plaintiff's police practices expert that a reasonable officer would have believed the evidence relevant.  The evidence did not go to the legal conclusion of whether the detective acted reasonably; it went to the norms of police practice.

Appellant Is Not Successful Party for Purposes of Private Attorney General Fees if Published Opinion Merely Affirms Trial Court's and Agency's Relief

In Hall v. DMV, published August 15, 2018, the Fourth District Court of Appeal, Division 1 affirmed a trial court order denying a petitioner's motion for attorney fees under the private attorney general fee statute, Code of Civil Procedure section 1021.5.  The petitioner was arrested for a suspected DUI.  Because he refused to provide a blood test, his driver's license was seized.  The petitioner challenged the seizure in a DMV hearing.  At the hearing, he objected to a "officer's statement" that had a discrepancy as to the date of arrest and the date petitioner was admonished about the consequences of refusing a blood test.  The hearing officer admitted the statement despite the discrepancy, ruled the discrepancy a clerical error, and sustained revocation of the license.  The petitioner sought a writ of mandate in superior court, on the ground that the officer's statement was inadmissible.  Before the hearing, the court allowed the petitioner to amend the petition based on a charge that the hearing officer had accepted bribes in other cases.  After the hearing officer pleaded guilty, the petitioner contended that lack of an impartial hearing officer violated his due process rights.  The trial court granted the petition on due process grounds, but did not grant the petitioner his requested relief of reinstating his license.  Instead, it remanded the matter to the DMV for a new hearing before an impartial hearing officer.   The DMV set the matter for a new de novo hearing.  Before the hearing, the petitioner appealed the ruling.  In a published decision, the Court of Appeal agreed that the petitioner had been deprived of due process, but rejected the requested relief and held that the trial court correctly ordered a new administrative hearing.  The appellate court awarded the petitioner costs, but did not state the basis for doing so.  The petitioner then sought over $145,000 in fees in the section 1021.5 motion.  The trial court denied the motion on the ground that the petitioner was not successful.

The appellate court agreed.  A section 1021.5 fee award requires that the petitioner be "successful."  A petitioner is successful if he achieves his primary litigation goal.  Here, the petitioner did not achieve his primary goal:  license reinstatement.  Instead, the result before the appeal was the same as the one afterward:  He was offered a new administrative hearing, which he did not want.  That the petitioner obtained a published decision that established an important right did not warrant fees if he was not successful.  He was awarded costs in the previous appeal because of the interests of justice, not because he was successful.  Further, he could not meet section 1021.5's test that the fee award is appropriate in light of the necessity and financial burden of private enforcement.  He started the petition before the basis for the fee motion (the charge that the hearing officer took bribes) appeared, and his attorney incurred approximately as much in fees on the petition before the amendment as afterward.  Further, once the trial court ruled that the petitioner was entitled to a new hearing, the litigation continued solely to vindicate the petitioner's personal goal of getting his license back.

Pursuit Immunity Does Not Require 100% Certification by Agency's Officers

In Ramirez v. City of Gardena, published August 13, 2018, the California Supreme Court affirmed summary judgment in favor of the defendant city in a wrongful death suit arising out of a police pursuit.  In doing so, it resolved a split in authority between the lower court's decision and the one in Morgan v. Beaumont Police Dept. (2016) 246 Cal.App.4th 144.  Vehicle Code section 17001 imposes liability on public entities for negligent or wrongful acts or omissions by public employees operating motor vehicles in the scope of their employment.  Vehicle Code section 17004.7 creates an immunity to that liability for injuries occurring during police pursuits if the entity adopts and implements a vehicle pursuit policy that meets the requirements of that statute.  Subdivision (b)(2) of section 17004.7 requires that promulgation of the policy include " a requirement that all peace officers of the public agency certify in writing that they have received, read, and understand the policy."  The subdivision further provides that failure of an individual officer to sign a certification "shall not be used to impose liability" on an officer or entity.  The question was whether the statute required every officer in a department to certify that he or she had received, read, and understood the policy.

The Supreme Court agreed with the lower court that the answer was no.  It interpreted the statutory language to mean that the policy must include a requirement that all of the officers certify in writing, not that the immunity will not apply if a single officer does not so certify.  If the Legislature had required otherwise, it would have said so.  The alternative interpretation would place a heavy burden on large police agencies by eliminating immunity, despite conscientiously implementing the policy, if a single officer refused or failed to certify receipt, reading, and understanding.  The court did not rely on the "shall not be used" language, since that appears to relate to imposing liability rather than on the existence of immunity.  The court disapproved the Morgan decision to the extent it was inconsistent with this decision. 

Agent Not Entitled to Qualified Immunity for Allegedly Killing Teenager without Provocation

In Rodriguez v. Swartz, published August 7, 2018, the 9th Circuit affirmed denial of a motion to dismiss a Bivens action based on qualified immunity.  The operative complaint that the decedent, a 16-year-old boy, was peacefully walking down a street in Nogales, Mexico that parallels the U.S.-Mexico border when the defendant, a U.S. Border Patrol Agent, fired multiple bullets across the border.  Approximately 10 bullets struck the decedent, mostly in the back.

The panel ruled that the agent was not entitled to qualified immunity to the allegation that he violated the decedent's rights under the Fourth Amendment.  The decedent had a Fourth Amendment right to be free from objectively unreasonable use of force by an American Agent on American soil, even though the decedent was a Mexican citizen on Mexican soil.  An alleged shooting of a person without provocation or threat is an objectively unreasonable use of force that violates the Fourth Amendment.  Use of deadly force is unreasonable unless there are strong countervailing governmental interests.  There is no governmental interest in shooting a person who is not suspected of a crime, who is not fleeing or resisting arrest, and who is not a threat to anyone.  The decedent's citizenship and ties to the United States (his grandparents were legal residents of the U.S.) are irrelevant to the qualified immunity analysis.  The question is whether it was clearly established that it was unconstitutional for an officer on American soil to use deadly force without justification on a person of unknown nationality on the other side of the border.  Because the unjustified killing obviously violated the decedent's Fourth Amendment rights, a case on "all fours" is not necessary to clearly establish the law on the subject.  Further, a Fifth Amendment claim may exist, because the alleged conduct shocked the conscience.  

The panel went on to rule (with a dissent) that a Bivens claim existed. 

The panel emphasized that the case was based only on the allegations in the complaint, and had not yet been proven.

Field-Trip Immunity Does Not Immunize Community College from Liability for Dangerous Condition of Property That Injures Member of Visiting Athletic Team

In Anselmo v. Grossmont-Cuyamaca Community College District, published August 3, 2018, the Fourth District Court of Appeal, Division 1 reversed  dismissal of the plaintiff's lawsuit on demurrer.  The plaintiff was a member of a community college women's volleyball team.  The team traveled to the defendant district's community college's campus to participate in an intercollegiate beach volleyball tournament.  The plaintiff alleged she was injured when she dove into the sand on the volleyball court and her knee hit a rock.  She sued the district for maintaining a dangerous condition of public property.  The trial court sustained the district's demurrer based on the field trips and excursions immunity provided to community colleges by title 5, section 55220 of the California Code of Regulations.

The appellate court ruled that the immunity does not apply to an injury suffered by a member of a visiting team during an intercollegiate athletic event.  The immunity protected the plaintiff's college from liability for operating the excursion that brought the plaintiff to the defendant's campus, but it did not protect the defendant from allegedly violating its duty not to increase the risk inherent in the sport by creating a dangerous condition of public property.  Otherwise, the district could be held liable to a student of the district for a dangerous condition, but could not be held liable to a visiting athlete injured by the same condition.