Government Liability Update

Police Officers Owe Duty of Reasonable Care to Arrestees

In Frausto v. Department of the California Highway Patrol, published August 21, 2020, the First District Court of Appeal, Division 2 affirmed a jury verdict in favor of plaintiffs in a wrongful death case.  Officers conducted a traffic stop of the decedent.  They suspected he was using drugs.  They observed him put something in his mouth and swallow it.  They repeatedly asked him if he had ingested drugs.  He repeatedly stated he had put gum in his mouth and swallowed it.  They observed no signs of drug intoxication.  They brought him to jail.  One of the officers prepared a probable cause declaration for the arrest that stated that the officer and another observed the suspect place what looked like a plastic baggie in his mouth and claim it was only gum.  The arrest report did not mention a plastic baggie.  The officer later testified the statements in the declaration about the baggie were mistakes.  Soon after the officers brought the suspect to jail, he collapsed in his cell.  He died of acute methamphetamine intoxication.  The jury found the arresting officers 68% at fault for the decedent's death, and the decedent 22% at fault.  On appeal, the defendants contended that they owed no duty of care to the decedent to do more than they did.

The Court of Appeal held that the arresting officers were in a special relationship with the decedent once they arrested him, imposing a duty of care similar to that a jailer owes a jailed person. Once in custody, an arrestee is vulnerable, dependent, subject to the officer's control, and unable to attend to his or her own medical needs.  The officer therefore owes a duty of reasonable care to the arrestee regarding the arrestee's medical needs.  The question of whether under the circumstances the officers should have recognized the arrestee had a need for immediate medical attention does not go to whether a duty exists, but rather whether the officers breached the duty.

Police Officer and Judge Not Entitled to Qualified Immunity for Stopping and Arresting Person in Court on Suspicion He Is In Country Illegally

In Hernandez v. Skinner, published August 10, 2020, the 9th Circuit Court of Appeals affirmed a district court order denying summary judgment to a sheriff's deputy and a Montana state court judge on the ground of qualified immunity.  The plaintiff accompanied his wife to a hearing on the wife's request for a protection order, to serve as a witness.  While the plaintiff was waiting outside the courtroom, the subject of the requested order testified that the plaintiff was "not a legal citizen."  The judge contacted the sheriff's office, and requested deputies because he had "illegal immigrants out in the hallway."  The judge then told the wife and the defendant he would arrest them and charge them with contempt if they left the courtroom.  He wanted to prevent them from warning the plaintiff.  The defendant deputy arrived.  The judge told him that plaintiff and another witness were "illegal aliens."  The deputy went to the plaintiff in the hallway and asked him for identification and his immigration status.  The plaintiff handed the deputy an expired Mexican consulate ID card.  It did not indicate his immigration status.  The deputy handcuffed the plaintiff, searched him, and placed him in a patrol car outside.  The deputy spoke with an ICE agent who asked the deputy to transport the plaintiff to a detention facility.  The plaintiff was in ICE detention for three months before the Department of Homeland Security dismissed the deportation proceeding it had filed against him.  The plaintiff sued the judge and the deputy under 42 U.S.C. section 1983 for allegedly violating his Fourth Amendment rights.  The judge did not claim judicial immunity.  The issue was whether the defendants were entitled to qualified immunity.

The 9th Circuit agreed with the district court that the defendants were not entitled to qualified immunity.  Because an alien's illegal presence (as opposed to illegal entry) in the country is a civil violation, not a crime, 9th Circuit authority had established at the time of the stop that suspicion or knowledge that a person is unlawfully present in the United States is not sufficiently premised on criminality to justify a Terry stop.  The deputy's stop and search of the plaintiff therefore violated the Fourth Amendment.  The deputy conceded he did not have probable cause to arrest the plaintiff until he contacted ICE.  The facts indicated that once the plaintiff was in the deputy's patrol car, the Terry stop had turned into an arrest.  A reasonable person in the situation would not have felt free to leave.  The arrest without probable cause violated the Fourth Amendment.  The 9th Circuit further agreed with the district court that the judge was an "integral participant" in the deputy's unlawful actions.  While the 9th Circuit has not determined whether a "cause in fact" or "probable cause" test applies to determining "integral participants" in a section 1983 case, the judge's conduct in summoning the deputy, ordering that he wanted the plaintiff "picked up," and barring the plaintiff's wife from leaving the courtroom to warn the plaintiff.  The plaintiff's stop and arrest were foreseeable consequences.  9th Circuit precedent was sufficient to constitute the "body of relevant case law" necessary to clearly establish that the stop and arrest under the circumstances violated the Fourth Amendment.  Both defendants therefore violated clearly established law.

Intentional Tortfeasors Are Not Entitled to Reduction or Apportionment of Damages Based on Comparative Fault

In B.B. v. County of Los Angeles, published August 10, 2020, the California Supreme Court reversed a judgment after jury trial in a case alleging police use of force against a resisting suspect, resulting in the suspect's death, was battery.  A decedent who appeared to be under the influence of PCP was accused of attempting to kill a woman.  In the presence of the defendant officers, the suspect began chasing the woman.  The officers tackled the suspect, who fought against them.  The officers pinned the suspect by kneeling on him, using tasers, hitting him, handcuffing and hobble-tying him.  The suspect passed away from brain death and swelling from lack of oxygen, following a cardiac arrest, due to post-restraint maneuvers or behavior associated with drug use.  The jury found the officers committed battery by using unreasonable force.  The jury apportioned 20% liability to one of the officers, 40% to the decedent, and 40% to other officers.  The trial court entered judgment against the 20% at fault officer for 100% of the non-economic damages because his liability was based on an intentionaltort.  The Court of Appeal reversed, holding that the officer could be held liable for only his proportionate share of the damages.

The Supreme Court reviewed case law leading up to the 1986 passage of Proposition 51, case law interpreting Proposition 51, ballot materials for the proposition, and an unpassed bill that preceded the proposition, and concluded that intentional tortfeasors may not assert the defense of comparative fault.  Although jurors should apportion fault between negligent and intentional tortfeasors (to determine the apportionment to which negligent tortfeasors are entitled), the judgment should not reduce or apportion the damages award against intentional tortfeasors based on comparative fault.  

Corporation Fails to File Damages Claim within Government Claims Act Statute of Limitations Where It Was Suspended when It Filed and Was Restored after Limitations Ran

In Granny Purps, Inc. v. County of Santa Cruz, published August 5, 2020, the Sixth District Court of Appeal affirmed in part and reversed in part a trial court's dismissal of a lawsuit after an order sustaining a demurrer.  The county's ordinance limited cultivation of medical marijuana to 99 plants.  The plaintiff corporation's marijuana dispensary was growing thousands of marijuana plants.  The county seized 2,200 marijuana plants from the plaintiff.  The plaintiff presented two claims for damages.  After the claims were denied, the plaintiff sued the county and two sheriff's deputies, asserting causes of action for conversion, trespass, and inverse condemnation.  The complaint sought money damages, and an order requiring return of the plants by way of a writ of mandate, injunctive relief, and a cause of action for specific recovery of property.  At the time the plaintiff filed the complaint, the Secretary of State had suspended the plaintiff's corporate status for failure to pay taxes.  The plaintiff paid its taxes and revived its corporate status after the Government Claims Act's six-month limitations period running from denial of the claims had expired. The court sustained the county's demurrer without leave to amend.

The appellate court affirmed dismissal of the causes of action in the complaint seeking damages.  Those causes of action (except inverse condemnation) were barred by the six-month statute of limitations.  A suspended corporation loses the right to prosecute a lawsuit.  Revival of the corporation after the time to commence an action has expired does not retroactively validate a lawsuit filed during corporate suspension.  The statute of limitations did not apply to the equity causes of action in the complaint, however.  A claim seeking return of property withheld by the government is not subject to the Government Claims Act, even though the property may be dissipated and the defendant may be compelled to pay damages in lieu of returning the property.

The appellate court also affirmed dismissal as to the inverse condemnation cause of action.  The Government Claims Act does not apply to inverse condemnation.  But the allegations were insufficient to state a claim.  Seizure of property in connection with enforcing criminal laws is not inverse condemnation.

Finally, the court reversed the dismissal of the causes of action for specific return of property, mandamus, and declaratory relief seeking return of the plants.  A plaintiff cannot sue for return of illegal property.  But state law at the time permitted cultivation and possession of medical marijuana.  The county's valid property regulation limiting the number of marijuana plants that could be grown did not render the plants contraband per se.  Because the complaint alleged that the plants were not illegally grown under state law, the complaint stated a cause of action.