Government Liability Update

A Section 1983 Action for a Taking Does Not Require Exhaustion of Administrative Procedures to Be Final

In Pakdel v. City and County of San Francisco, published June 28, 2021, the U.S.U.S. Supreme Court, per curiam vacated and remanded a 9th Circuit decision.  Plaintiffs challenged a city requirement that they offer a tenant in a tenancy-in-common a lifetime lease as a condition of converting to condominium ownership.  The city refused to exempt them from the requirement or compensate them for the lease.  They sued, alleging the lease requirement was an unconstitutional taking.  The district court ruled that the plaintiffs had to seek compensation through state law procedures before seeking compensation under federal law.  While their appeal was pending, the Supreme Court decided Knick v. Township of Scott, which repudiated the requirement that a plaintiff must seek compensation in state court.  The 9th Circuit nevertheless affirmed dismissal.  It ruled that Knick left untouched the requirement that plaintiffs may challenge only final government decisions.  The 9th Circuit concluded that the regulatory takings claim remained unripe because the plaintiffs had made a belated request for an exemption at the end of the administrative process instead of timely seeking one through the prescribed procedures.

The Supreme Court held that the 9th Circuit misapplied the finality requirement.  Nothing more than de facto finality is necessary.  Once the government has committed to a position, the dispute is ripe for judicial resolution.  The 9th Circuit's demand that a plaintiff seek exemption through the prescribed state procedures is an exhaustion requirement.  Exhaustion is not a prerequisite for a section 1983 takings claim when the government has reached a conclusive position.  Administrative missteps do not defeat ripeness once the government has adopted its final position.  Because the city twice denied the plaintiffs' requests for an exemption or compensation, the city's decision was final and ripe.

Court Must Analyze Facts and Circumstance to Determine Whether Officers Used Unconstitutional Amount of Force

In Lombardo v. City of St. Louis, published June 28, 2021, the U.S. Supreme Court, in a split per curiam opinion, reversed and remanded a summary judgment granted in favor of police officers.  The plaintiffs' decedent was arrested for trespassing and failure to appear in court for a traffic ticket.  While he was in jail, the decedent put a piece of clothing around his neck and tied it to the bars of his cell.  Multiple officers entered his cell. The decedent resisted. The officers handcuffed the decedent and put him in leg irons.  They moved him into a prone position, and an officer placed pressure on the decedent's back and torso.  After 15 minutes of struggling in this position, the decedent expired.  The decedents parents sued the police officers under 42 U.S.C. section 1983.  The district court granted summary judgment on the ground of qualified immunity.  The circuit court affirmed on the ground that the officers did not apply unconstitutionally excessive force.

The majority reversed the circuit court decision.  In assessing whether officers used excessive force, a court asks whether the offices' actions are objectively reasonable in light of the facts and circumstances confronting them.  Courts cannot apply the standards mechanically.  It requires careful attention to the facts and circumstances of each particular case.  Circumstances include the relationship between the need for the use of force and the amount of force used; the extent of the plaintiff ’s injury; any effort made by the officer to temper or to limit the amount of force; the severity of the security problem at issue; the threat reasonably perceived by the officer; and whether the plaintiff was actively resisting.  The majority ruled that it was unclear whether the circuit court thought the use of a prone restraint is per se constitutional so long as an individual appears to resist officers' efforts to subdue him, no matter the kind, intensity, duration, or surrounding circumstances.  Factors such as the agency instructing its officers that pressing down on the back of a prone suspect can cause suffocation, and police guidance to get a subject off his stomach as soon as handcuffed to avoid suffocation and that struggles may be due to oxygen deficiency rather than desire to disobey officer commands, may be pertinent, along with the duration of the restrain and the fact the decedent was shackled.  The court expressed no view on whether the use of force was excessive or whether the officers were entitled to qualified immunity, but remanded the summary judgment to the circuit court.

Three justices dissented, opining the court should either deny review, or grant review and have the matter briefed and argued before deciding it.  

Student's Profane Social Media Post Complaining about School Protected by First Amendment

In Mahoney Area School District v. B.L., published June 23, 2021, the U.S. Supreme Court, ruling 8-1, affirmed a circuit court decision that the defendant school district's discipline of the plaintiff violated the First Amendment.  The plaintiff was denied a position on her high school's varsity cheerleading squad and the right fielder position on a private softball team.  While off-campus, the plaintiff posted on Snapchat (a social media app that allows users to post photos to friends that disappear after a set period) a photo with her and a friend posing with middle fingers extended.  The caption read:  "F__ school f___ softball f___ cheer f___ everything."  She also posted a blank image with a caption complaining about the cheerleading situation.  A friend took a picture of the post and shared it with other members of the cheerleading squad.  The photos eventually came to the attention of cheerleading coaches.  The coaches and the principal concluded that because the posts used profanity in connection with a school extracurricular activity, they violated team and school rules.  The coaches suspended the plaintiff from the junior varsity cheerleading squad for the upcoming year.  The plaintiff sued the district, contending that the discipline violated her First Amendment rights.  The district court found in the plaintiff's favor, and the circuit court affirmed.

The Supreme Court majority ruled that the conduct was protected by the First Amendment.  Past Supreme Court cases have outlined the protection for student speech on campus.  The special characteristics that give schools additional license to regulate student speech do not always disappear when a school regulates off-campus speech.  The court declined to set forth a broad First Amendment rule stating what counts as "off campus" speech, or whether or how First Amendment standards must give way off campus to a school's special need to prevent substantial disruption of learning-related activities or protection of the school community.  But three features of off-campus speech often distinguish schools' efforts to regulate that speech from on-campus speech:  the school will rarely stand in loco parentis in relation to off-campus speech; regulation of off-campus and on-campus speech would mean regulation 24 hours a day (so schools must meet a heavy burden when regulating off-campus religious or political speech); and the school has an interest in protecting a student's unpopular expression, especially off-campus, so that future generations understand the "marketplace of ideas."  These features of off-campus speech diminish the leeway the First Amendment grants to schools in light of their special characteristics.  Here, the plaintiff's speech did not involve features that would put it outside First Amendment protections.  The posts did not amount to fighting words, and while crude, they were not obscene.  If an adult spoke such words, she would receive strong First Amendment protection.  The student posted off-campus, during non-school hours, did not identify the school, and did not target any member of the school committee.  The means of posting diminished the school's interests in regulation. There was no record that the posts had the sort of substantial disruption of school activity, or threatened harm  rights of others, that might justify the school's actions.

Justice Thomas dissented.  He opined that precedent supported the coaches' actions in disciplining off-campus speech.

Time to File Suit in State Court Is Tolled While Federal Action Is Pending, Through Mandate Issued in Appeal of Right

In Sales v. City of Tustin, published June 8, 2021, the Fourth District Court of Appeal, Division 3 reversed summary judgment in favor of the defendant city, granted based on the statute of limitations.  Plaintiff alleges her decedent fled an improper detention, was chased into traffic, and was killed.  On the last day to file a lawsuit under California law (six months after her claim was denied), the plaintiff filed a suit in federal court alleging federal and state causes of action.  The district court denied a defense summary judgment motion based on qualified immunity.  The defendants took an interlocutory appeal to the 9th Circuit.  That court reversed the denial of summary judgment.  On remand, the district court concluded that the appellate ruling resolved all of the federal claims in favor of the defendants, and entered judgment on those claims.  The court declined supplemental jurisdiction over the state law claims, and dismissed them.  That occurred in 2016.  The plaintiff appealed the result to the 9th Circuit.  The 9th Circuit affirmed the decision.  The court then denied a rehearing en banc.  The court issued its mandate on December 5, 2018.  The plaintiff refiled her state law causes of action in state court on December 19, 2018.  The trial court granted the defendants summary judgment on the ground that under 28 U.S.C. section 1367, the plaintiff's time to file her state court claim was tolled only until the district court dismissed the state law claims in 2016.

The appellate court concluded that the trial court interpreted section 1367 incorrectly.  Section 1367 governs supplemental jurisdiction over state law claims in federal court.  Subdivision (d) provides that the period of limitations for any state claim joined with federal claims shall be tolled while the claim is pending in federal court, and for a period of 30 days after it is dismissed.  The appellate court joined the majority of courts to extend the tolling deadline through the pendency of an appeal of right, through the mandate returning the appeal to the district court, and then for 30 days after the mandate.  That the appeal addressed only the dismissal of the federal claims, and not the state claims, did not matter; if the federal court had reversed judgment on the federal claims, the district court might have reasserted jurisdiction over the state law claims.

Government Code Section 821.6 Immunizes Officers for Failing to Cover Partially Nude Decedent During Investigation

 

****Update:  On August 18, 2021, the California Supreme Court granted review of this decision.  The order granting review specified that the lower court decision could continue to be cited for its persuasive authority.****

In Leon v. County of Riverside, published May 27, 2021, the Fourth District Court of Appeal, Division 2 affirmed summary judgment in favor of the defendant county and deputies in a lawsuit alleging negligent infliction of emotional distress.  The plaintiff's husband was shot by a neighbor.  When a deputy arrived on the scene, he believed the decedent to be dead, but began rendering aid.  Shots rang out from neighboring property.  The deputy evacuated the area, forcing the plaintiff to leave.  When a second deputy arrived, the first deputy moved an SUV between the body and the source of the shots, and the second dragged the decedent behind the SUV.  As he did, the decedent's pants were pulled down, exposing his genitals.  The second deputy attempted chest compressions and announced the decedent dead.  More deputies and officers arrived, and nearly four hours after the first deputy arrived the shooter was found dead of a self-inflicted wound.  The body remained with its genitals exposed for approximately another four hours, when the coroner finished processing the body and collecting evidence.  The first deputy and lead investigator testified that they did not know why the body was not covered after the shooter was found dead.  The trial court granted summary judgment based on the immunities set forth in Government Code sections 815.2(b) and 821.6

The appellate court agreed that the statutes applied.  As interpreted by multiple appellate court opinions, Government Code section 821.6 immunizes the deputies from liability for any negligence in leaving the decedent's body exposed.  Section 821.6 immunizes public employees from liability for any injury-causing act or omission in the course of an investigation that may precede the institution and prosecution of a judicial or administrative proceeding.  In light of the investigation of the body, and statutory law barring moving a decedent, the acts for which the deputies were sued were part of their investigation.  Any negligence in leaving the body uncovered when it might have been uncovered is subject to the immunity.  Under Government Code section 815.2(b), the county cannot be held liable for the deputies' acts where the deputies are immune.  Government Code section 815 immunizes the county from any direct liability for negligence, because there is no statutory basis for that negligence.  Catsouras v. Department of California Highway Patrol was distinguishable, because the court in that case found that sharing photos of a decedent's remains was not part of official police business.  The court rejected an argument that the case law applying section 821.6 to investigations was wrongly decided, finding support for the statute in pre-Government Claims Act common law.

A concurring justice noted that the California Supreme Court had apparently interpreted section 821.6 to apply only to malicious prosecution, and that federal courts had followed that line of authority.  The justice agreed with the majority, however, that the lower courts had interpreted section 821.6 to apply to torts other than malicious prosecution.