Government Liability Update

Approved Plan Showing Absence of Bicycle Lane Entitled City to Design Immunity

In Tansavatdi v. City of Rancho Palos Verdes, published January 29, 2021, the Second District Court of Appeal, Division 4 affirmed in part and reversed in part summary judgment granted to the defendant city.  Plaintiff's decedent was riding his bicycle on a roadway without a bike lane.  He rode straight through a right-turn lane at an intersection, and ran into a right-turning truck, sustaining fatal injuries.  Plaintiff contended that the absence of the bike lane was a dangerous condition of public property.  The trial court granted the city summary judgment based on Government Code section 830.6 design immunity.  

The appellate court affirmed the trial court's finding of design immunity.  The three elements of design immunity were established.  A 2009 restriping and resurfacing plan for the roadway indicated the presence of bicycle lanes on other sections of the street on which the decedent rode, but not on the segment where there was no lane.  This evidence established that the absence of a bike lane was the result of a plan or design, establishing the causation element.  The plans were signed by the city's director of public works, and the city submitted undisputed evidence that he approved the plans on behalf of the city before construction.  That satisfied the discretionary approval element.  The city submitted substantial evidence the plan was reasonable, by submitting an expert declaration that the absence of a bicycle lane was reasonable and met guidelines. A former senior engineer for the city declared similarly, and testified in support of reasonableness in deposition.  The plaintiff's contrary expert evidence did not eliminate the substantial evidence of reasonableness.  The court rejected the plaintiff's argument that the city had to show evidence of the deliberative process or analysis concerning a bicycle lane to establish reasonableness.  The law does not require such evidence; to the contrary, a public entity need not show the deliberative process to obtain design immunity.  

The court noted, however, that the trial court's order did not address the plaintiff's argument that the city could be held liable for failure to warn even if it was entitled to design immunity.  The court ruled that under California Supreme Court authority, a city can be held liable for failure to warn of an allegedly dangerous condition even if the city is entitled to design immunity for the condition.  The court remanded the matter to the trial court to consider whether summary judgment is appropriate as to the plaintiff's failure to warn theory.

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Pollak, Vida & Barer represented the city on appeal in this case.

The Law Clearly Establishes That a Passenger Is Seized under the Fourth Amendment when a Police Officer Shoots at a Vehicle, and that Use of Deadly Force toward a Fleeing but Non-Threatening Vehicle Violates the Fourth Amendment

In Villaneuva v. Cleveland, filed January 28, 2021, the 9th Circuit Court of Appeals affirmed the district court's denial of summary judgment in a 42 U.S.C. section 1983 case based on qualified immunity.  Police officers observed a vehicle commit various traffic violations.  When the vehicle left the scene, the officers gave chase in an unmarked vehicle.  The vehicle stopped at a dead-end street.  The officers stepped out of their vehicle and stood at their vehicle's sides.  The suspect made a three-point turn, and began driving slowly in the general direction of the officers.  Although the facts are disputed, viewing the facts in the light most favorable to the plaintiffs, the turn was made in a controlled manner, the suspect vehicle was moving very slowly, and the  vehicle did not drive directly at the officers, their vehicle, or anyone else.  The officers shot at the vehicle, killing the driver and wounding the passenger. The passenger and the driver's parents sued the officers. The district court concluded that the passenger had standing to sue the officers; that there were too many disputed facts to find qualified immunity on summary judgment; and that viewing the facts in the light most favorable to the plaintiffs, a reasonable jury could find the officers used excessive force in light of clearly established law.

The 9th Circuit agreed.  It rejected the officers' argument that because they intended to shoot only the driver, not the passenger, the passenger had no Fourth Amendment interest.  Because the officers intentionally shot at the vehicle to stop it, both of the vehicle's inhabitants were seized under the Fourth Amendment.  Although case law has ruled a passenger who falls out of a vehicle and is accidently run over may not have a Fourth Amendment interest because he is not seized by the officers, case law clearly establishes that when officers intentionally use force toward more than one person and injure one of them, they have seized that person regardless of whether they subjectively intended to use force toward that person.  The 9th Circuit further ruled that the officers violated clearly established law by using deadly force against a fleeing vehicle that posed no threat to them or anyone else.  Officers may use deadly force to stop a fleeing suspect only if the officer has probable cause to believe the suspect poses a threat of serious physical harm to the officer or to others.  The 9th Circuit has consistently found use of deadly force to stop a slow-moving vehicle unreasonable when the officers could have easily stepped out of the vehicle's path to avoid danger.  Use of deadly force against a stopped or slow-moving vehicle has been found reasonable only when the driver was trying to avoid arrest in an aggressive manner involving actual or attempted acceleration of the vehicle.  Taking the facts in the light most favorable to the plaintiffs, the three-point turn was performed cautiously, the vehicle was not aimed directly at the officers, was moving very slowly, and was not accelerating when the officers fired.  Under that version of the facts, the officers violated clearly-established law.

Suspect Whose Un-Mirandized Confession Is Used in Criminal Prosecution against Him May Assert Fifth Amendment Claim against Officer Who Took Confession

In Tekoh v. County, et al.,  published January 15, 2021, the 9th Circuit Court of Appeals reversed a defense verdict in a 42 U.S.C. section 1983 case and remanded it for retrial.  The plaintiff, an employee at a county medical center was accused of sexual assault on a patient.  An investigating sheriff's deputy went to the plaintiff's workplace, and the two went to a nearby private room to talk.  Although the deputy interviewed the plaintiff, he did not advise him of his Miranda rights.  By the end of the questioning, the plaintiff had written a statement admitting the assault and apologizing for it.  The plaintiff tsetified that the officer coerced and threatened him into writing and signing the statement, and dictated the contents of it.  The deputy testified that the plaintiff told the deputy he had made a mistake, and at the deputy's request wrote and signed the statement without further prompting.  The plaintiff was arrested and criminally charged.  His statement was used in the criminal prosecution.  A first trial ended with a mistrial.  A second trial, at which the plaintiff introduced expert evidence on coerced confessions, ended in acquittal.  The plaintiff then sued the deputy for violating the plaintiff's Fifth Amendment right against self incrimination.  The district court declined to instruct the jury that it should find in his favor on that claim if it found that the deputy obtained statements from him in violation of Miranda that were used in the criminal case against him.  Instead, the court instructed the jury that the issue was whether the confession was coerced.  The jury found in favor of the deputy.

The 9th Circuit held that the jury instruction was an incorrect statement of the law.  In Dickerson v. United States (2000) 530 U.S. 428, the Supreme Court held that Miranda  is a rule of constitutional law that could not be overruled by constitutional action.  Based on that decision, the Court of Appeals concluded that the right of a criminal defendant against having an unMirandized statement introduced in the prosecution's case in chief is a right secured by the Constitution; and thus such a defendant has a claim that his Fifth Amendment right against Self-Incrimination was violated.  Neither United States v. Patane (2004) 542 U.S. 630 or Chavez v. Martinez (2003) 538 U.S. 760 provides otherwise.  Both were fractured decisions, in which no common thread of the separate opinions supported the proposition that a criminal defendant whose unMirandized statement is used against him in a criminal prosecution does not have a Fifth Amendment claim.  Previous 9th Circuit decisions and the decisions of other circuits support the conclusion.  The district court's erroneous instruction was not harmless; it imposed an extra element for the plaintiff to prove--whether the confession was coerced.  Further, the issue of whether the plaintiff was in custody when he gave the statement--a necessary element to the Fifth Amendment claim--was never submitted to the jury.

Although Previous Authority Applied a Subjective Standard to Fourteenth Amendment Deliberate Indifference Claims by Pre-Conviction Prisoners, Qualified Immunity for Conduct During That Time Is Determined under an Objective Standard

In Sandoval v. County of Los Angeles, published January 13, 2021, a divided panel of the 9th Circuit Court of Appeal reversed summary judgment granted to the defendant county and three jail nurses in a lawsuit brought under 42 U.S.C. section 1983.  The plaintiff’s decedent overdosed on methamphetamine before arrest, swallowing the drug in an effort to avoid discovery.  The decedent appeared ill when taken into custody.  He said he might be diabetic.  A nurse tested the decedent’s blood sugar level, which was normal.  A deputy told the first defendant nurse that the decedent was ill and needed to be checked more thoroughly.  The nurse gave the decedent a second, quick blood sugar test, which was normal, and then left.  The decedent was put in a cell that was sometimes used as a medical observation cell and sometimes as a normal holding cell.  Although the cell was 20 feet from the nursing station, the first defendant nurse did not check on the decedent for the remaining six hours of the nurse’s shift.  The failure may have stemmed from the cell’s mixed use.  After the decedent was left unmonitored for eight hours, a deputy noticed the decedent displaying seizure-like behavior.  The second defendant nurse, the lead nurse on the response team, was told several times to call paramedics, but refused to do so.   The third defendant nurse called the head nurse, who said to call paramedics.   She later admitted she should have called paramedics. Instead, EMTs were summoned.  EMTs, unlike paramedics, do not have the training to deal with an unresponsive patient and will not transport unresponsive patients.  The EMTs advised the nurses that they would not transport the decedent.  Paramedics were then summoned.  As they tried to transport him, the decedent died.  The district court granted summary judgment to all defendants.  It sustained several one-sentence objections the defendant made to evidence.

The panel majority held that the district court erred both in sustaining the objections and in granting summary judgment.  The majority held that the district court should not have sustained the one-sentence objections, which excluded much evidence important to the plaintiff, particularly relevance and hearsay objections.  The court held that relevance objections are seldom useful in summary judgment motions, because the determination of whether a fact is material decides whether it is relevant.  It also held hearsay objections are seldom proper, because the focus is on whether the information in the evidence would be admissible at trial, not the form in which it is presented.  Turning to the merits, the majority held that the district court erred in determining that because at the time of the incident the standard of liability for a Fourteenth Amendment deliberate indifference claim for medical care to a pre-conviction prisoner incorporated a subjective element, the nurses were entitled to qualified immunity unless they were subjectively aware that their actions violated clearly-established law.  Instead, the court held that the qualified immunity prong of whether the nurses violated the constitution would be decided under the current, objective standard; and that the clearly-established-law prong of qualified immunity would also be determined objectively, by deciding whether a reasonable employee, charged with knowledge of the then-existing law, would have believed that his or her conduct was unlawful.  Under that standard, summary judgment for the nurses was not appropriate.  Viewing the evidence in the light most favorable to the plaintiff, the first defendant nurse acted objectively unreasonably in failing to examine the decedent more thoroughly, and in failing to monitor the decedent for hours.  The other two nurses acted objectively unreasonably in failing to summon paramedics, since an objective nurse in their situation would have known that EMTs could not transport an unresponsive patient.  All three nurses’ conduct violated the clearly established law that a patient in distress could not be denied immediate medical care.  The plaintiff had also submitted sufficient evidence that the county could be held liable for maintaining the policy of using the cell for either medical observation or ordinary holding, creating a situation where the nurses expected deputies to monitor the cell and deputies expected nurses to do so.

A judge concurred that the nurses who failed to summon paramedics were not entitled to qualified immunity, but opined that the first nurse was entitled to qualified immunity.  The judge asserted that because the legal standard at the time of the incident required subjective knowledge, there was insufficient evidence the nurse was subjectively aware of the decedent’s medical needs to overcome qualified immunity.  The judge further believed that the plaintiff had failed to raise a triable fact on the county’s liability.

Factual Disputes on Meaning of Facebook Post and Disruption Caused Prevented Summary Judgment on First Amendment Retaliation Suit

In Moser v. Las Vegas Metropolitan Police Dept., published January 12, 2021, a divided panel of the 9th Circuit Court of Appeals reversed summary judgment in favor of the defendant department.  An officer in the department was shot.  The suspect was later arrested.  The plaintiff, a SWAT team sniper in the department, posted a comment on a friend's Facebook post linking an article about the shooting, "we caught that _______ . . . It's a shame he didn't have a few holes in him . . . ."  An anonymous tipster alerted the department's Internal  Affairs department about the comment.  An investigation ensued.  During his interview with investigators, the plaintiff admitted his comment was inappropriate, but stated he intended to express his frustration that the suspect had ambushed one of the department's officers and and the officer did not have a chance to defend himself.  He further said he had removed the comment by the time of the interview, less than two months after the comment was posted.  The department transferred the plaintiff out of SWAT and put him back on patrol.  Department officials found that the comment showed that the plaintiff had become too callous to killing; opined that snipers are held to a higher standard because they dealt with stressful situations; determined that the comment violated the department's social media policy.  The plaintiff sued the department and officials for First Amendment retaliation.  The district court granted summary judgment on the ground that the department's disciplinary action was justified under the Pickering balancing test for speech by government employees.  The district court concluded that the comment meant that the plaintiff wanted his fellow officers to shoot the suspect, regardless of whether the use of force was necessary; that the comment was subject to moderate First Amendment protection; and that the protection was outweighed by the department's prediction of likely future disruptions caused by the plaintiff's continued SWAT service as members of the public would question the plaintiff's fitness as a SWAT member and any future use of deadly force by him might subject the department to suit.

The panel majority held the trial court erred because genuine issues of fact prevented summary judgment.  While the Pickering balancing test for weighing the employee's First Amendment interests in private speech against the employer's interest in treating the employee different from a member of the public is a question of law, it may still implicate factual disputes that preclude the court from resolving the test by summary judgment.  Here, it was undisputed that the officer's speech addressed an issue of public concern (the shooting), that he spoke as a private citizen, and that the department demoted the plaintiff because of his speech.  But there was a factual dispute about the meaning of the Facebook comment:  whether the plaintiff meant that the ambushed officer should have shot his assailant, or whether he was commenting about the perils officers face and the government's failure to protect them.  The former would not be "core" First Amendment speech, while the latter would.  There was also a factual dispute over whether the department provided any evidence of predicted disruption to the department.  There was no evidence that anyone other than the anonymous tipster saw the comment, or that most people would have known from the comment that the plaintiff was a SWAT team member.  The chance that a member of the public saw the post was reduced by the short time it was left online.  The department provided no evidence that the comment would expose the department to future liability.

A dissenting judge pointed out that the plaintiff conceded that there was no genuine issue of material fact about the meaning of his comment; that the officer's private, subjective meaning did not make his public statement ambiguous; or that the department's interpretation of the statement was not reasonable.  The dissenting judge would have affirmed summary judgment.

Trial Court Improperly Based Demurrer of Writ Petition on Judicial Notice of Interpretation of Transcript

In New Livable California v. Association of Bay Area Governments, published January 6, 2021, the First District Court of Appeal, Division 3 reversed dismissal, on demurrer, of a petition for writ of mandate and an action for declaratory and injunctive relief.  The plaintiff association alleged that the Association, a joint powers authority, violated the Brown Act by incorrectly recording multiple votes.  The Association demurred.  As part of the demurrer, the Association sought judicial notice of a transcript from a later Association meeting describing a change in the method of voting.  The trial court ruled, based on the transcript, that there was no live controversy between the parties.  It further ruled that the plaintiff had failed to demonstrate prejudice.  It sustained the demurrer on those grounds.

The appellate court ruled that the trial court had erred in sustaining the demurrer.  A court ruling on a demurrer cannot take judicial notice of the proper interpretation of a document submitted in support of the demurrer.  Doing so converts the demurrer into an incomplete evidentiary hearing in which the demurring party can present documentary evidence and the opposing party is bound by what that evidence appears to show.  The trial court therefore erred in interpreting the statements in the transcript to establish that there was no longer any live controversy.  The trial court also erred in sustaining the demurrer for failure to allege prejudice.  Prejudice is not an element of the Brown Act claim the plaintiff was asserting.  The plaintiff only had to set forth factual allegations showing a violation of the statute at issue.

Appellate Court Lacks Jurisdiction over Interlocutory Appeal from Qualified Immunity Denial Where only Issue is Sufficiency of Evidence to Raise Issue of Fact

In Estate of Anderson v. Marsh, published January 15, 2021, a divided 9th Circuit Court of Appeals dismissed, for lack of jurisdiction, an interlocutory appeal from a district court order denying a motion for summary judgment based on qualified immunity.  After a high-speed chase, an officer approached a vehicle that had crashed into a fence.  The officer contended that the driver moved his hands from the steering wheel and gear shift to a point below the driver, and the officer, fearing the driver was reaching for a weapon, shot him.  The plaintiff passed away during the pendency of the case.  The district court found evidence from surrounding circumstances that was contrary to the officer's version; and ruled that if the driver did not lower his hands, the officer's use of deadly force would violate clearly-established law.  The officer appealed on the ground that the evidence was insufficient to raise a genuine issue of fact.

The panel majority held that it lacked jurisdiction to entertain the appeal.  While acknowledging the Supreme Court's law on the subject was not always clear, the majority held that appellate courts have jurisdiction to hear interlocutory appeals from denials of qualified immunity only when the appellant raises the issue of whether undisputed facts show a violation of clearly-established law--an issue of law.  The court has no jurisdiction to entertain an appeal of the issue whether the evidence is sufficient to raise a genuine issue of fact--except in the limited instance where the plaintiff has provided no evidence except bare allegations.

The dissenting judge opined that the law was unclear on when a court has interlocutory jurisdiction over denial of qualified immunity.

 

Circuit Precedent Did Not Clearly Establish That Accessing Juvenile Records without a Court Order Violated the Fourth Amendment

In Nunes v. Arata, Swingle, Van Edmond, & Goodwin, published December 29, 2020, the 9th Circuit Court of Appeals reversed a district court order denying a motion to dismiss brought by defendant county counsel and an outside law firm for the county that was based on qualified immunity.  The county separated the plaintiffs' children from plaintiffs during an investigation of suspected child abuse.  The plaintiffs sued the county, challenging the separation.  The outside counsel represented the county during the separation case, during that litigation, the defendant county counsel provided the outside firm with the children's juvenile records, without first obtaining an order from the juvenile court per Welfare & Institutions Code section 827.  County counsel believed that section 827 did not require court authorization to access the records and disclose them to the county's outside counsel.  The plaintiffs also alleged that the records contained information protected by HIPAA.  The plaintiffs sued the county, the county counsel, and the outside firm under 42 U.S.C. section 1983.  They alleged that the defendants violated their state and federal constitutional rights to privacy.  The district court granted the motion to dismiss as to the Fourteenth Amendment, but ruled that the defendants violated a right to privacy in juvenile records was clearly established by Gonzalez v. Spencer, 336 F.3d 832 (9th Cir. 2003), because the majority opinion found a viable claim under the Fourth Amendment when an attorney defending a county wrongly accessed a juvenile case file in violation of section 827, and the dissenting opinion clarified the Fourth Amendment right implicated by the violation.  The defendants brought an interlocutory appeal from denial of qualified immunity.

The 9th Circuit ruled that Gonzalez did not clearly establish a Fourth Amendment violation.  Gonzalez was a split decision in which the per curiam majority wrote a two-page opinion.  The majority did not identify a specific constitutional right or conduct a constitutional analysis.  Instead, the opinion held that if the attorney in Gonzalez violated a constitutional rights, the plaintiff was entitled to at least nominal damages and the attorney was not entitled to qualified immunity.  That the constitutional right at issue was the Fourth Amendment could be gleaned only from the dissenting opinion.  A strong indication that Gonzalez did not clearly establish any constitutional privacy rights was that district courts did not treat Gonzalez as establishing a constitutional violation.  Such an "opaque" opinion as Gonzalez, which does not explain the origin, nature, and scope of the right at issue, cannot place the constitutional issue "beyond debate."  It therefore cannot so clearly establish the law that every reasonable official acting as the defendants did would have known they were violating the plaintiffs' rights.  The court did not decide whether the Constitution provides a privacy rights in juvenile records.  A concurring judge opined that an en banc court should reconsider Gonzalez and resolve whether a constitutional right to privacy exists in juvenile records.