Government Liability Update

Brown Act Requires That Litigation Threat That Prompts Closed Session of City Council Meeting Must Be Disclosed in Agenda Before Meeting: But Failure to Do So Was Not Prejudicial

In Fowler v. City of Lafayette, published February 10, 2020, the First District Court of Appeal, Division 4 affirmed judgment in favor of the defendant city in a lawsuit that contended that a decision affirming construction should be nullified due to an alleged violation of the Ralph M. Brown open-meetings act.  The defendant city's council held multiple open meetings to address an appeal from the property owner's neighbors challenging the planning commission's decision to allow the construction.  During the appeal process, the lawyer for the property owner threatened litigation if the city denied the application for construction. The litigation threat was noted in the "notes" field in the city's application database for the project.  The application database was available for public viewing at the city's planning counter,  provided a member of the public asked a planner for permission.  The threats were not mentioned in the packet of information provided to the public before the council meetings, including the agenda.  The council ultimately denied the appeal.  The trial court ruled that the city's handling of the litigation threat and the closed meetings complied with the Brown Act.

The court of appeal disagreed that the city complied.  Government Code section 54956.9, part of the Brown Act, permits agencies to confer with legal counsel in closed session regarding pending litigation, including where a threat of litigation is made outside of an open meeting on a specific matter within the responsibility of the legislative body.  But the statute also requires that the employee of the agency receiving knowledge of the threat makes a record of the statement before the meeting, and the record is available for public inspection before the meeting.  The court rejected the argument that including the threat in the application database met this requirement.  Instead, when a litigation threat that prompts a closed-session meeting, the agency must include the record of the threat in the agenda packet made available upon request before a meeting.  

The court of appeal further determined that the city's violation of this rule did not require nullification of the city's decision.  Because the denial of the application was based on proceedings in open session, and because the city council held extensive proceedings in open session on the matter, the error concerning the closed sessions did not affect the outcome, or prevent the neighbors from pursuing their appeal.

District Court Insufficiently Explained Its Decision to Limit Plaintiff Who Settled for 10% of Damages Sought to 10% of Fee Sought

In Vargas v. Howell, published February 5, 2020, a divided panel of the 9th Circuit Court of Appeals affirmed in part and reversed in part a fee award to a plaintiff in a 42 U.S.C. section 1983 case who entered into a settlement with the defendants that allowed the plaintiff to seek his attorney fees in court.  In discovery, the plaintiff asserted his damages were $1 million.  He ultimately settled for $99,999, 10% of what he sought.  He sought $257,000 in attorney fees.  On the plaintiff's fee motion under 42 U.S.C. section 1988, the district court awarded $26,000 in fees.  Among his grounds for cuts were an across-the-board reduction of the fees sought by the firm and attorney who did most of the work by 90%.  The court also excluded fees billed by two of the plaintiff's attorneys who left the firm that represented him before the litigation concluded, on the ground that the attorneys' new firm did not have standing to seek fees.  Other cuts were based on tasks and hours the court deemed unreasonable.

The majority affirmed several of the cuts the district court made, but concluded that the district court did not adequately explain the size of the cut of the principal attorney's fees.  More substantial cuts require more substantial explanations.  The district court erred to the extent it concluded that the settlement for 10% of the amount sought mechanically justified cutting the fees by 90%.  Limited success, by recovering much less than the plaintiff sought, can be a ground for deeming fees unreasonable under some circumstances, such as where the suit was brought only for nuisance value or the district court makes rulings that establish the plaintiff will not be able to prevail.  No such circumstances were present here.  Cutting fees whenever the plaintiff settles for or recovers much less than the plaintiff stated he was seeking would discourage plaintiff's attorneys from seeking substantial amounts of money and then negotiating down to a final settlement figure.  Instead, it would encourage them to claim only lower amounts, and then decline to negotiate downward.  The majority also reversed the finding that the attorneys who switched firms had no standing to seek their fees.  Since section 1988 fees belong to the client, not the attorney, the firm that seeks recovery is immaterial.

A dissenting judge would have affirmed the award in full, on the ground that the district court properly exercised its discretion.

Law Clearly Establishes Using Deadly Force after Low-Speed Chase, Absent Threat of Serious Injury to Shooting Officer or Others, Violates Fourth Amendment

In Orn v. City of Tacoma, published February 3, 2020, the 9th Circuit affirmed a district court decision denying a police officer summary judgment in a 42 U.S.C. section 1983 case on the ground of qualified immunity.  Because this was an interlocutory appeal from denial of qualified immunity, the appellate court resolved the disputed facts of what occurred in the light most favorable to the plaintiff.  A police officer tried to pull the plaintiff over because he was driving after dark without lights.  He was driving with a suspended license and had smoked crack.  Rather than pull over, the plaintiff drove home, at 25-35 miles per hour, stopping at traffic lights and stop signs.  During his 15 minute drive home, multiple officers pursued the plaintiff at slow speed.  Various attempts to get the plaintiff to stop failed.  The officers predicted the plaintiff would head to his apartment complex.  The defendant officer parked across a narrow point of the single access lane between the two entrances of the parking lot, to prevent the plaintiff from exiting.  the plaintiff pulled into the entrance and drove slowly down the access lane.  When he approached the defendant's SUV, he paused, came to a brief stop.  The defendant officer stood to the left of his SUV, gun drawn and pointed at the ground.  The plaintiff ignored the officer's commands to stop.  The plaintiff drove away from where the defendant was standing, and attempted to drive through a narrow opening between the passenger side of the defendant's SUV and a parked car.  He drove very slowly as he did so; the plaintiff and officers at the scene estimated he drove five miles per hour.  Another officer backed his vehicle into the plaintiff's line of travel.  The plaintiff turned more sharply to one side to avoid hitting the vehicle.  The plaintiff's passenger side clipped the passenger-side rear quarter of the defendant's SUV.  An officer inside the SUV called it a glancing blow.  The front corner of the plaintiff's vehicle struck the front corner of the other officer's vehicle.  As the plaintiff moved past the defendant's SUV, the defendant ran toward's the side of the plaintiff's vehicle and began firing at him.  One of the shots hit the plaintiff in the spine, paralyzing him.  His foot floored the accelerator as he slumped.  The defendant officer fired three rounds at the side of the vehicle and seven rounds through the rear windshield as the vehicle sped away from him.  Three of the ten total bullets fired hit the plaintiff.  The defendant officer disputed this sequence, and contended that the plaintiff accelerated toward him as he stood in front of the plaintiff's vehicle.  A jury acquitted the plaintiff of the charge of assaulting the defendant officer with his vehicle.

Taking the facts in the light most favorable to the plaintiff, the appellate court concluded that the defendant officer did not have an objectively reasonable basis for believing the plaintiff posed a threat of serious physical harm to the defendant or others.  The defendant officer was never at risk of being struck by the vehicle, because he was never in the vehicle's path of travel, either when he was at the vehicle's side or was shooting at it from behind.  A fellow officer's testimony that he only saw the plaintiff's vehicle accelerate after the first shots were fired reinforces the conflict between the defendant officer's version and the plaintiff's.  Even if jury found the officer was standing in the way of the plaintiff's vehicle, because the vehicle was driving only five miles per hour, the officer could have avoided any risk of being struck by taking a step back, which he did.  The defendant officer argued that he believed that the other officer inside the defendant's SUV had stepped out and was in danger, because the defendant believed he himself was in danger.  The issue of fact on whether the defendant officer was in danger therefore creates an issue of fact on whether he reasonably believed the other officer was in danger.  Further, at every juncture that evening, the plaintiff had deliberately driven his vehicle away from nearby officers.  There was no basis for believing the plaintiff would pose a danger to the public, based on his conduct.  The law clearly established that an officer firing into the side or rear of a vehicle moving away from him lacks an objectively reasonable basis for believing his own safety is at risk, particularly where a jury could conclude the officer was never in the path of the vehicle.  Precedent also established that where an officer could avoid any danger from a very-slowly-approaching vehicle by stepping aside, use of deadly force is unreasonable.  Because there were no officers or other individuals in the plaintiff's path, and under the plaintiff's version he never engaged in any conduct that suggested his vehicle posed a threat of serious physical harm to anyone in the vicinity, precedent clearly established that threat to others did not provide an objectively reasonable basis for the use of force.  Finally, the case law upholding use of deadly force to protect the public from a fleeing motorist involve suspects who drove at extremely high speeds, endangered other motorists on the road, or intentionally targeted police officers with their vehicles.  That did not occur in this case.

Penal Code section 832.7 Requires Law-Enforcement Agencies to Produce Officer-Related Records Produced by Other Agencies; but CPRA Catch-All Exception Applies

In Becerra v. Superior Court (First Amendment Coalition), published January 29, 2020, the First District Court of Appeal, Division 3 affirmed a trial court decision ordering the California Department of Justice and California Attorney General to disclose police officer related records under Penal Code section 832.7 in response to a California Public Records Act request.  In 2018, the Legislature amended section 832.7, part of the statutory scheme that governs production of police officer records, to provide that notwithstanding Government Code section 6254, subdivision (f) (which exempts law enforcement investigation records from production under the CPRA), peace officer or custodial officer personnel records and records maintained by any state or local agency shall not be
confidential and shall be made available for public inspection under the CPRA if the records relate to officer discharge of firearm or use of deadly force against a member of the public; a sustained finding that an officer committed sexual assault; or a sustained finding of dishonesty by an officer relating to a crime or the misconduct of another officer.  Various real parties sought records under the statute held by the Department of Justice and Attorney General's office over the course of three to five years.  The Department refused to produce the records.  The trial court granted a writ of mandate directing the respondents to produce all requested records except those the court deemed could be withheld or redacted.  The respondents sought appellate writ relief challenging the order.

The appellate court rejected the respondents' argument that Penal Code section 832.7 did not apply to records the Attorney General and Department of Justice held that had been created by other law enforcement agencies.  A review of the statutory language, the statute's purpose, and the policy that CPRA exemptions are construed narrowly compelled the conclusion that the statute applies to all responsive records a state or local agency holds regardless of origin.  The appellate court agreed with the respondents' argument, however, that the "catch-all" exemption to the CPRA under Government Code section 6255 applies to production under section 832.7.  Under that exemption, otherwise non-exempt records are exempt from production under the CPRA if the public interest in the records remaining confidential outweighs the public interest in disclosing the records.  Finally, the appellate court applied the catch-all exemption in this case, and concluded that the respondents had produced insufficient evidence establishing a clear overbalance on the side of confidentiality.  The court remanded the case to the trial court, and held that its ruling did not prevent the respondents from making a showing in the trial court as to any of the requested records upon a proper showing by the respondents.

Juvenile Correction Officer's Sexual Comments and Conduct toward Ward of Opposite Sex, including Observing Her in Shower, May Have Violated Clearly-Established Law

In Vasquez v. County of Kern, published January 31, 2020, the 9th Circuit reversed summary judgment for a juvenile corrections officer and his supervisor in a lawsuit by a juvenile ward under 42 U.S.C. section 1983, alleging violation of the ward's Fourteenth Amendment rights.  The officer allegedly made multiple sexual comments to the ward; was alone with her in closed rooms, in violation of policy; touched her inappropriately; and sat at a staff counter in another room while she showered, from which point he could look into a shower.  There was evidence he directed her to use a particular shower.  The district court granted the officer and supervisor summary judgment, ruling that the conduct did not rise to the level of a Fourteenth Amendment violation, and that even if it did, the officer was entitled to qualified immunity.

The 9th Circuit disagreed.  There was a genuine issue of fact on whether the officer violated the ward's Fourteenth Amendment right to bodily privacy.  Viewing the evidence in the light most favorable to the ward, there was a dispute over whether the officer viewed the ward multiple times in the shower, and once entered her room when her privacy sign was out, without a legitimate prison interest.  Past cases holding that correctional officers did not violate prisoners' bodily privacy by observing prisoners of the opposite sex naked when the view was from far off and obscured, or where there was a legitimate prison interest, were distinguishable.  There was also a genuine dispute of fact on whether the officer violated the ward's right of bodily integrity by engaging in sexual harassment, considering the difference in age, size, and power between the two parties.  The evidence created a genuine dispute over violation of the ward's Fourteenth Amendment right to freedom from punishment, because the alleged conduct caused the ward harm outside of the inherent discomforts of confinement, and did not serve a legitimate governmental purpose.  The officer was not entitled to qualified immunity for this conduct, because Ninth Circuit precedent clearly established that such conduct would violate the Fourteenth Amendment.  It was also obvious that a juvenile corrections officer should not sexually harass or abuse a ward.  There was a genuine dispute of fact as to the supervisor's liability, because there was evidence that the supervisor was aware of the officer's conduct concerning wards showering and of the officer's violation of policy in the past and did not intervene.