Government Liability Update

Statutory Treble Damages Provision for Cover-Up of Childhood Sexual Abuse Is Punitive Damages Award, Barred by Statutory Immunity

In Los Angeles Unified School District v. Superior Court (Doe), published May 21, 2021, the Second District Court of Appeal, Division 3 issued a writ directing a trial court to grant a motion to strike a treble damages prayer in a lawsuit.  The lawsuit alleged that the petitioner district covered up an employee's sexual abuse of a student, leading to the sexual abuse of the plaintiff student.  The suit alleged causes of action against the district for negligent hiring, supervision, and retention; breach of mandatory duty to report suspected child abuse; negligent failure to train, warn, or educate; and negligent supervision of a minor.  The plaintiff sought an award of economic and noneconomic damages against all defendants, and an award of treble damages under Code of Civil Procedure section 340.1 against the district.  The district moved to strike the treble damages prayer under Government Code section 818, which immunizes public entities from punitive and exemplary damages.  Relying on the legislative history of the amendment of section 340.1 that added the treble damages provision, the trial court denied the motion, ruling that the treble damages provision had a compensatory function.

The appellate court disagreed.  The Government Claims Act maintains souvereign immunity from punitive damages that are awarded to punish the defendant and to deter outrageous conduct in the future, while waiving immunity for normal tort damages awarded to compensate the plaintiff for injury suffered, restoring the plaintiff as nearly as possible to her former position.  Treble damages under section 340.1 are imposed to punish and deter cover-ups, not to compensate the plaintiff.  The legislative history-- including a statement attributed to the bill's author that the treble damages are needed "to compensate victims who never should have been victims" as well as an "effective deterrent" against cover ups--does not unambiguously demonstrate the Legislature in fact added the treble damages provision to the statute for that purpose.  While the fact that an entity covered up past abuse may add to a victim's emotional distress, that is an item of harm for which a jury can award compensatory damages.  By definition, the treble damages award is in addition to the plaintiff's actual damages.  The treble damages provision is plainly designed to punish those who cover up childhood sexual abuse and thereby to deter future cover-ups, rather than to compensate victims.  The provision is therefore primarily punitive under section 818.  Case law allowing mandatory civil penalties under section 818 is inapposite; those provisions lie outside the perimeters of a tort action and are fixed amounts.  The treble damages are awarded only in tort actions for injury, and are based on a jury's calculation of damages.  They are therefore punitive damages.

Prison Officer Did Not Violate Clearly-Established Law by Listening in on Portions of Prisoners' Phone Conversations with Civil Attorneys

In Witherow v. Baker, published May 18, 2021, a divided 9th Circuit panel affirmed summary judgment for a prison officer in a suit under 42 U.S.C. section 1983 alleging violation of a prisoner's Fourth Amendment rights.  The prison unit the plaintiff was in did not allow prisoners to use wall phones.  The unit had a single portable phone, and each prisoner's use was limited to 20 minutes.  The phone did not have caller ID.  The officer would use a speaker and a flip switch to monitor the beginning of the call, to check whether the call was to an attorney or an attorney's office.  The officer would then stop listening.  Later in the call, the officer would check again, to see whether the prisoner had called someone else, and to make sure the prisoner was not depriving others of the phone by making unauthorized calls.  The district court granted the officer summary judgment, based on qualified immunity, on the grounds that she had not violated the plaintiff's Fourth Amendment rights, and that if she had violated any such right, the right was not clearly established

The panel majority ruled that the officer was entitled to qualified immunity on the second prong:  the right was not clearly established.  The plaintiff failed to identify any binding authority, or a consensus of law, that a prison officer listening in on a prisoner's phone call with a civil attorney violated the prisoner's Fourth Amendment rights.  The majority further concluded that there was no need to address whether the officer's actions had violated the Fourth Amendment, because the situation was fact bound (involving technology from 2007-2008); it was unclear whether violation of the attorney-client privilege would involve the Fourth Amendment; and prisoners can challenge similar practices by bringing suits for declaratory and injunctive relief.

A judge wrote an opinion concurring in part and dissenting in part.  The judge opined that the panel should address whether the conduct violated the Fourth Amendment, to develop the law on that subject.

"Community Caretaking" Exception to Warrant Requirement Does Not Apply to Homes

In Caniglia v. Strom, published May 17, 2021, the U.S. Supreme Court reversed a decision from the First Circuit Court of Appeals affirming summary judgment to police officers.  During an argument with his wife, the plaintiff placed a handgun on the dining room table and asked his wife to shoot him.  The wife left the home and spent the night at a hotel.  The next morning, she was unable to reach her husband by phone.  She called the police for a welfare check.  The responding officers went with the wife to the house.  The plaintiff was on the porch.  The officers believed the plaintiff was a threat to himself or others.  They called an ambulance.  The plaintiff agreed to go to the hospital for evaluation after the officers allegedly promised not to confiscate his firearms.  After the ambulance took the plaintiff away, the officers entered the plaintiff's home and seized two handguns.  The plaintiff sued the officers, alleging the officers violated his Fourth Amendment rights.  The First Circuit concluded that the officers' entry fell within a "community caretaking" exception to the Fourth Amendment's warrant requirement.  It relied on the decision in Cady v. Dombrowski, 413 U.S. 433 (1973).

The Supreme Court unanimously reversed.  The Fourth Amendment prohibits unreasonable intrusions onto private property.  Permissible invasions of the home and curtilage include valid warrants, certain exigent circumstances (including the need to render emergency assistance to an injured occupant, or protect an occupant from imminent injury), and acts any private citizens might do (such as knocking on a front door).  The "community caretaking" rule as applied to homes goes beyond what the Supreme Court has recognized.  Cady involved a warrantless search of a firearm in an impounded vehicle, rather than a home.  It was not an open-ended license to perform warrantless searches anywhere.  Three justices wrote separate concurring opinions to emphasize that officers retain the ability to enter homes to take reasonable steps to assist those inside a home in need of aid.

Alleged Police Violation of Miranda Rights Violated Clearly Established Fifth Amendment Rights, but Violation of Fourteenth Amendment Rights Not Clearly Established

In Tobias v. Arteaga, published April 27, 2021, a divided panel of the 9th Circuit Court of Appeals affirmed in part and reversed in part a district court decision denying a summary judgment motion based on qualified immunity.  Police arrested the plaintiff, then 13, on suspicion of murder.  At the police station, two detectives intensively questioned the plaintiff for 20 minutes before reading him his Miranda rights.  The plaintiff stated that he understood the rights.  The detectives showed the plaintiff security camera footage that they asserted showed the plaintiff.  The plaintiff said, "Could I have an attorney?  Because that's not me."  A detective responded, "But--okay.  No, don't worry.  You'll have the opportunity."  The detectives continued to question the plaintiff.  The two detectives then left the room, telling the plaintiff that his mother would be in to talk with him.  Instead, a third detective entered and questioned the plaintiff aggressively for 40 minutes.  The detective repeatedly told the plaintiff that his lack of confession was a "lie" and would make him look like a "cold blooded killer."  The plaintiff confessed.  A jury convicted the plaintiff of murder.  The state court of appeal reversed the trial court's ruling on a motion to suppress the confession as coerced.  On remand, the charges were dismissed.  All parties now agree that the plaintiff was not involved in the murder.  The plaintiff sued the detectives under 42 U.S.C. section 1983 for violation of the Fifth Amendment right against self-incrimination and Fourteenth Amendment substantive due process.  The district court denied the defendant detectives' motion for summary judgment on the ground that the facts, viewed in the light most favorable to the plaintiff, established violation of clearly-established law.

The panel majority upheld denial of qualified immunity on the claim that the detectives violated the plaintiff's Fifth Amendment right to counsel by continuing his custodial interrogation after he requested an attorney, and then using the resulting confession against him in his criminal case.  When a suspect makes an unambiguous request for an attorney, he is not subject to further questioning until a lawyer has been made available.  The plaintiff's statement was an unequivocal invocation of his right to counsel under clearly established law.  The third detective further violated the plaintiff's rights by engaging in an unconstitutionally coercive interrogation, by threatening the plaintiff would receive less favorable treatment for exercising his rights.    That the plaintiff was told he would be treated more harshly for "lying," rather than for failure to cooperate, did not make a difference.  When a suspect tries to cooperate by telling the truth, but the police continue to demand his "cooperation" by confessing, the law clearly established that the interrogation was coercive.  While the other two detectives did not directly participate in this part of the questioning,  there was evidence suggesting they observed the questioning and might be liable for failure to intervene.  The 9th Circuit remanded that issue to the district court.  While the coercive questioning might violate the Fourteenth Amendment, cases finding such interrogation violated due process involved longer interrogations.  Because the law was not settled on whether a shorter interrogation violated due process, the officers were entitled to qualified immunity on the Fourteenth Amendment claim.

A concurring and dissenting judge would have granted qualified immunity on the coercive questioning Fifth Amendment claim, on the ground that the law did not clearly establish the questioning was unconstitutionally coercive.