Government Liability Update

Exigent Circumstances of Inmate Disturbances and Lockdowns Justified Denying Jail Inmate Bed

In Olivier v. Baca, published January 11, 2019, the 9th Circuit affirmed summary judgment granted to a former county sheriff, in his official and individual capacities, in a suit filed by a jail inmate under 42 U.S.C. section 1983.  While the inmate was being processed at the county Inmate Reception Center, a series of inmate disturbances and lockdowns occurred throughout the county jail system.  As a result, the plaintiff was not transferred to permanent housing for three and a half days.  During that time, although a bench was available for sleeping, the plaintiff alleged that there were too many inmates in the IRC to permit them all to sleep on the bench, and attempting to do so would have caused a fight.  The inmate therefore slept on the floor.  The plaintiff sued the former sheriff for allegedly violating his Fourteenth Amendment rights.

The 9th Circuit upheld the district court's conclusion that the former sheriff was entitled to summary judgment in his official capacity, because the plaintiff failed to show a county custom or policy that violated the plaintiff's Fourteenth Amendment rights.  It is established that disturbances by inmates and lockdowns can delay detention facility procedures and temporarily restrict rights without violating the Eighth Amendment.  The same considerations apply to Fourteenth Amendment claims by pretrial detainees.  The undisputed evidence established that keeping the IRC inmates in place during the exigent circumstances was reasonable because jail personnel had to be deployed to deal with the disturbances and lockdowns.  The jail officials' response was reasonable in scope and effective in controlling the disturbances.  The plaintiff was transferred to permanent housing after the disturbances had been controlled.  The district court also correctly granted summary judgment to the former sheriff in his individual capacity, based on qualified immunity.  The plaintiff failed to show that the law clearly established that under the exigent circumstances here, depriving an inmate of a bed violated the Fourteenth Amendment.

Under California Public Records Act, Public Entity's Right to Access Contractor's Records Does Not Give the Entity Constructive Possession of the Records

In Anderson-Barker v. Superior Court (City of Los Angeles), published January 22, 2019, the Second District Court of Appeal, Division 7 denied a petition for a writ of mandate challenging a trial court's decision denying a California Public Records Act petition. The petition sought electronically-stored data relating to vehicles that private towing companies had impounded at the direction of the Los Angeles Police Department.  The records were stored by an organization composed of the private towing companies.  By contract, the city had the right to inspect the records.  The trial court nevertheless ruled that the city had no obligation to produce the records under the CPRA because it did not possess the records.

The appellate court agreed.  Under the CPRA, an entity must produce non-exempt public records it either actually or constructively possesses.  "Constructive possession" means the right to control the records.  That means to manage, direct, or oversee the records.  The city did not direct what information was put in the records, and it had no power to modify the data in those records.  That the city could access the data did not equate to possession or control.

Post-Incarceration Plea Agreement to Time Served Bars Constitutional Challenge to Original Conviction

In Taylor v. County of Pima, published January 17, 2019, the 9th Circuit affirmed the district court's granting of a motion to dismiss a 42 U.S.C. section 1983 suit challenging the defendant's 1972 conviction on grounds of denial of due process and fair trial.  In 2012, while still incarcerated, the plaintiff advanced new evidence supporting his innocence.  The government contested the evidence, but in 2013 entered into a new plea deal with the plaintiff under which the original conviction was vacated, but the plaintiff pleaded no contest to the same counts, was sentenced to time served, and was released.  The district court ruled that Heck v. Humphrey barred the suit.

The 9th Circuit agreed.  Under Heck, a plaintiff may not pursue a section 1983 lawsuit if a judgment in the plaintiff's favor would necessarily imply a state law conviction is invalid, unless the conviction has been vacated by a state court.  Here, the 1972 conviction was vacated, so that conviction does not bar the suit.  But the 2013 plea deal was a valid conviction.  Therefore, even if the plaintiff could prove constitutional violations arising out of his 1972 conviction, he could not challenge the resulting imprisonment, because as a matter of law the 2013 conviction caused all of his prior imprisonment.

State Controller Cannot Be Held Liable under Abuse of Process for Improperly Using Discovery Product to Conduct Audit

In Yee v. Superior Court (Thrivent Financial for Lutherans), published January 8, 2019, the First District Court of Appeal, Division 2 issued a writ directing the trial court to grant a motion for judgment on the pleadings.  The State Controller's Office initiated an audit of the real party insurance company's records.  The insurance company and Controller's Office filed cross-litigation concerning the audit.  The Controller filed a motion to compel production of records from the insurer sought under discovery.  The court granted the motion, allegedly after the Controller's counsel assured the court that the the information obtained in discovery would not be used to conduct the audit.  The Controller allegedly then used the records produced to pursue the audit.  The litigation was eventually dismissed by order of an appellate court.  The insurer then sued the Controller's office for abuse of process, alleging that Controller's Office employees used the discovery information to conduct the audit, in violation of court order and protective order.

The appellate court ruled that the lawsuit was barred by Government Code section 815.  Section 815 bars nonstatutory causes of action against public entities.  The central issue was whether the Controller's Office could be held vicariously liable under Government Code section 815.2, subdivision (a).  Section 815.2 provides for public entity respondeat superior liability for the acts or omissions of employees, but only if the act or omission would have given rise to a cause of action against the employee.  Under the facts of the case, no Controller's Office employee could be held liable for abuse of process.  The abuse was using the records in the audit.  Only the State Controller's Office, not its individual employees, had the power to perform the audit.

Court May Not Deny Qualified Immunity in Excessive Force Case on Ground That Freedom from Excessive Force is Clearly Established

In City of Escondido v. Emmons, published January 7, 2019, the U.S. Supreme Court, in a per curiam opinion, reversed a 9th Circuit decision holding that excessive force claims against two officers should be sent to trial.  The officers answered a domestic abuse call.  After the officers knocked on the apartment door but were unable to persuade those inside to answer the door for a welfare check, a man exited the apartment door.  One officer told the man not to close the door.  He closed it and brushed past the officer.  The officer stopped the man, took him quickly to the ground, and handcuffed him.  He turned out not to be the suspect.  The district court held that the officer who did not participate in the use of force was entitled to summary judgment, and the other officer was entitled to summary judgment based on qualified immunity.  In an unpublished opinion, the 9th Circuit reversed as to both officers.  Because the right to be free from excessive force was clearly established, the circuit court ruled, the officers were not entitled to qualified immunity.

The Supreme Court ruled that the 9th Circuit erred as to both officers.  As to the officer who did not participate in the use of force, the reversal as to him was unexplained and puzzling.  As to the officer who used force, the circuit erred in not defining the clearly-established right with specificity.  The court should have asked whether clearly established law prohibited the officers from stopping and taking down a man in these circumstances.