Government Liability Update

Pre-Trial Detainee's Constitutional Right to Have a Proper Medical Screen Conducted Clearly Established; Right to Direct-View Safety Checks Was Not

In Gordon v. County of Orange, published July 26, 2021, the 9th Circuit Court of Appeals affirmed in part and reversed in part summary judgment in favor of the defendant county and jail employees in a 42 U.S.C. section 1983 case.  The decedent f was arrested on heroin-related charges.  During his intake at the county jail, the decedent informed the defendant nurse at intake of his heroin habit.  Two detoxification protocols existed for assessing inmates suffering from substance withdrawal:  one for alcohol (CIWA) and one for opiates (COWS).  Jail staff used the CIWA protocol, rather than COWS.  A defense expert opined that CIWA was appropriate for a poly-drug abuser.  An expert for the plaintiff opined that if COWS had been used, the decedent would have been housed in the medical observation unit instead of general population, and would have been monitored more closely.  After his intake, the decedent was not assessed as he waited nearly ten hours to enter the general population.  When he entered general population, no CIWA or other evaluation of decedent occurred that day.  Although state regulations required hourly safety checks through direct visual observation, and the sheriff's department had a policy that the checks be conducted with a clear, direct view of the inmate, a defendant deputy conducted two of the safety checks from 12-15 feet away, too far away to ascertain whether decedent was breathing or alive.  A few hours after entering his cell, decedent was found unresponsive, his face blue and his skin cold.  He was pronounced dead.  The case was the subject of an earlier appeal, in which the 9th Circuit ruled that inadequate medical care claims brought by pretrial detainees required a showing of objective deliberate indifference.  After remand, the district court allowed additional expert discovery, and granted summary judgment for the individual defendants based on qualified immunity and for the county on the ground that the plaintiff could not establish Monell liability.

The 9th Circuit reversed the finding of qualified immunity for the nurse and observing deputy.  Regarding the nurse, the 9th Circuit ruled that in 2013, when the incident occurred, a body of authority clearly established that a pretrial detainee had a constitutional right to have a proper medical screen conducted to ensure the medically appropriate protocol was initiated. She was therefore not entitled to qualified immunity under the second prong of the immunity. The case against her was remanded for a factual analysis of whether, under the first prong of qualified immunity, she violated that clearly-established right.  As for the observing deputy, the 9th Circuit concluded that while pretrial detainees have a constitutional right to direct-view safety checks sufficient to determine whether their presentation indicates the need for medical treatment, that right was not clearly established in 2013.  The 9th Circuit affirmed the grant of summary judgment to the county, because a single incident is insufficient to establish a custom, policy, or practice sufficient to support Monell liability.

Under California Public Records Act, Public Interest in Protecting Contact Tracing Outweighs Public Interest in Disclosing Locations of COVID-19 Outbreaks

In Voice of San Diego v. Superior Court (County of San Diego), published July 16, 2021, the Fourth District Court of Appeal, Division 1 declined to issue a writ of mandate disturbing a trial court's decision on a California Public Records Act petition.  The petitioner news media organizations made a CPRA request for records showing the locations of all businesses or other entities where COVID-19 community outbreaks have occurred from March 1, 2020 through July 15, 2020.  The county responded by producing a spreadsheet of outbreaks redacting the names and addresses for the locations of outbreaks.  The county provided an explanation that the public interest in protecting a candid exchange of information between those linked to the outbreak locations and the county Public Health Officer's disease investigators, to permit contact tracing.  The explanation also stated that publicly releasing specific locations after the outbreak had taken place would not protect the public.  The county asserted that the information was exempt from the public under the CPRA's catch-all provision, Government Code section 6255(a), which permits nondisclosure where the public interest served by not disclosing the record outweighs the public interest in disclosure.  The county submitted the declaration of the county's public health officer in support.  The trial court denied the writ petition seeking to enforce the CPRA request.

The appellate court agreed that the catch-all exemption applied.  Although the court could reject the health officer's expert opinion if it were unduly speculative or lacked a proper basis.  But her declaration was specific and based on her expertise and extensive experience.  The petitioners did not submit any contrary evidence.  That the county had released location information for outbreaks of other diseases, and COVID-19 information for a university, did not undermine the officer's opinion.  The county provided valid explanations that when outbreaks of conditions such as hepatitis A or tuberculosis, the public could take specific action in response to protect themselves and avoid further spread.  By contrast, the county established, when the public visits a location where a COVID-19 outbreak had occured, the public does not need to take any additional protective measures because community transmission of COVID-19 is widespread.  The county showed that the public interest in promoting contact tracing by keeping information about locations confidential outweighs the public interest in knowing the locations of outbreaks to protect themselves, and determining the effectiveness of government efforts to combat COVID-19 by knowing specific locations of outbreaks.

For Heck v. Humphrey Purposes, Conviction for Violation of PC 148(a)(1) Establishes That Officer’s Use of Force During Arrest Was Lawful

In Lemos v. County of Sonoma, published July 16, 2021, a divided panel of the 9th Circuit Court of Appeals affirmed summary judgment in favor of defendants in the plaintiff’s suit under 42 U.S.C. section 1983 for alleged use of excessive force.  One of the defendant officers saw a pickup truck obstructing a lane of traffic and heard screaming.  The plaintiff attempted to interfere with the officer’s interview of the pickup’s occupants.  The plaintiff started walking away from the truck and did not respond to the officer’s order to stop.  The officer grabbed her shoulder and brought her to the ground.  The plaintiff was prosecuted for violation of Penal Code section 148(a)(1)—resisting, delaying, or obstructing an officer in the performance of his duties.  The jury was instructed that the would have to find that the officer was lawfully performing or attempting to perform his duties as a peace officer, and that a peace officer is not lawfully performing his duties if the officer is using unreasonable or excessive force in his duties.  The jury was further instructed that the plaintiff could be found liable on one of four different theories of liability, representing different acts plaintiff performed during the officer’s investigation of the truck.  The jury convicted her, using a general verdict.  The district court granted summary judgment, on the grounds the Heck v. Humphrey doctrine barred the action.On appeal , the plaintiff contended that the jurors in the criminal trial did not necessarily find that she was guilty of pulling away from the arresting officer at the time he arrested her, and she could therefore sue the officer for using excessive force in response.

 

The majority affirmed summary judgment.  Under the Heck v. Humphrey doctrine, when a plaintiff who has been convicted of a crime under state law seeks damages in a section 1983 suit, the district court must consider whether a judgment in favor of the plaintiff would necessarily imply the invalidity of his conviction or sentence.  A plaintiff’s allegation of excessive force by a police officer is not barred by Heck if the officer’s conduct is distinct temporally or spatially from the factual basis of the plaintiff’s conduct.  Under Heck, the relevant inquiry is whether the record contains factual circumstances that support the underlying conviction under section 148(a)(1), not whether the conviction was obtained by a jury verdict or a guilty plea.  A conviction under section 148(a)(1) is valid only when the officer was acting lawfully at the time the offense against the officer was committed.  Here, by finding the plaintiff guilty, the jury was finding that the officer acted lawfully through the continuous chain of events that day, even when he placed the plaintiff under arrest.

 

A dissenting judge opined that the decision would encourage officer overreaction to minor criminal behavior.

Tolling of Statute of Limitations for Minor's Suit includes the Date of the Minor's 18th Birthday

In Shalabi v. City of Fontana, published July 12, 2021, the California Supreme Court affirmed a lower appellate court's decision that a 42 U.S.C. section 1983 lawsuit against the defendant city was filed within the statute of limitations.  The plaintiff alleged that on May 14, 2011, a city police officer wrongfully shot and killed the plaintiff's father.  The plaintiff was a minor at the time.  The minor's 18th birthday was December 3, 2011.  The minor filed suit December 3, 2013.  The trial court held a bifurcated bench trial on whether the suit was barred by the two-year statute of limitations.  The trial court concluded that the minor filed the suit one day late.  Although the statute of limitations was tolled while the plaintiff was a minor, the trial court relied on the unpublished California Supreme Court decision in Ganahl I, which included the date the minor plaintiff in that case reached the age of majority in calculating when the statute of limitations period commenced after tolling during minority ended.  The appellate court reversed, holding that the minor's 18th birthday should have been excluded in calculating when tolling ended and the statute of limitations began.

The California Supreme Court agreed. State law controls tolling of the statute of limitations for a section 1983 claim. Under Code of Civil Procedure section 352(a), when a minor is injured, the statute of limitations is tolled until the minor turns 18.  Code of Civil Procedure section 12 sets forth the ordinary rule for computing time.  Under it, the time within which any act provided by law is to be done is computed by excluding the first day and including the last (unless the last day is a holiday).  A uniform rule governing the method of computing time promotes clarity and stability. A case will not be
found to come under an exception to the general rule unless there is a clear expression of provision for a different method of computation.  There is no such expression concerning minors.  The Ganahl I case is not binding authority, because there was an in-bank decision after it; and it is not persuasive authority.  Because the plaintiff's December 3, 2011 birthday was included in the tolling period, the lawsuit brought December 3, 2013 was timely.

Government Code Hazardous Recreational Immunity Applies to Liability from Hazardous Activities, even if Liability Is Not Related to Property

In Haytasingh v. City of San Diego, published July 9, 2021, the Fourth District Court of Appeal, Division 1 affirmed in part and reversed in part a decision for the defendant city in a personal injury case.  One of the plaintiffs was surfing.  A city lifeguard was operating a city-owned personal watercraft on city business.  Although the parties’ versions of the accident differed, the plaintiffs alleged the lifeguard was operating the watercraft inside the surfline, parallel to the surfer plaintiff, and made a left turn in front of him.  To avoid a collision, the surfer plaintiff dove off his board and struck his head on the ocean floor, sustaining serious injuries.  He and his wife sued the city and the employee.  The trial court granted summary adjudication of the plaintiffs’ cause of action, ruling that Government Code section 831.7’s immunity for public entities and employees from liability for injuries that arise out of hazardous recreational activities (which the statute defines to include surfing) applied.  The plaintiffs amended their complaint to allege two exceptions to section 831.7:  gross negligence; and failure to warn of another hazardous recreational activity.  The case proceeded to trial.  At trial, the court declined to give the plaintiffs’ requested jury instruction that city lifeguards were required to comply with the basic speed law set forth in Harbors and Navigation Code section 655.2.  Section 655.2 limits the speed of vessels operated within 100 feet of bathers to five miles per hour, unless the vehicle is engaged in law enforcement and displaying the required lights (which the lifeguard’s watercraft was not).  The jury found for the defendants.

The appellate court affirmed the summary adjudication of the negligence cause of action.  It rejected the plaintiffs’ contention that Government Code section 831.7, like the statute it was purportedly designed to mirror, Civil Code section 846, was limited to premises liability.  Unlike the language of section 846, which focuses on premises, the broad language of section 831.7 focuses on the hazardous recreational activity itself, by negating any liability for injuries arising out of that activity.  Because surfing is one of the activities listed in the statute as a hazardous recreational activity, the plain language of the statute established it applied.  But the court also ruled that the trial court erred in concluding that the application of Harbors and Navigation Code section 655.2 was preempted by a municipal code ordinance, which limited speed to five miles per hour but exempted governmental employees from the speed limit.  Although section 655.2 provides that it applies if the area is not otherwise regulated by local rules and regulations, and section 660 allows local governmental entities to adopt additional regulations if they do not conflict with the Harbors and Navigation Code, the court ruled that the municipal code section did conflict with the Code.  The court further concluded that the instructional error was prejudicial.

Employee Excused from Exhausting Administrative Remedies if Official Who Has Animosity toward Employee and Who Is Central to Controversy Will Be a Decisionmaker

In  Briley v. City of West Covina, published July 1, 2021, the Second District Court of Appeal, Division 4 affirmed in part and reversed in part a judgment after jury trial in favor of the plaintiff in an employment retaliation case.  The plaintiff was a deputy fire Marshal.  He complained  to the city that various city officials had ignored his reports of misconduct, and had engaged in misconduct.  The officials included the Fire Marshal, the plaintiff’s then direct supervisor.  After making those allegations, the plaintiff additionally complained that the Marshal and others had retaliated against him.  He also filed grievances with the city’s HR commission, raising the retaliation claims.  The Marshal later testified at a deposition that his working relationship with the plaintiff had become strained, that the plaintiff had tried to undermine his authority, and that the plaintiff had tried to intimidate him.  While the investigation of the plaintiff’s claims was pending, the Marshal informed the city manager of multiple complaints against the plaintiff involving allegations of misconduct and unprofessional behavior.  The Marshal, who had been elevated to Fire Chief, issued the plaintiff a notice of intent to terminate.  A pre-termination hearing upheld the termination.  The plaintiff began an appeal to the city’s HR commission.  The ultimate decision makers following the commission’s review would have been the Fire Chief, as the original decisionmaker, and the city manager.  The plaintiff ceased pursuing his appeal, notifying the commission that doing so would be futile.  The plaintiff brought this lawsuit.  The trial court concluded that the plaintiff was excused from pursuing an appeal to exhaust his administrative remedies.  The plaintiff obtained a jury verdict against the city under Labor Code section 1102.5 (retaliation for whistleblowing).  The jury awarded him over $500,000 in economic damages, $2 million in past noneconomic damages, and $1.5 million in future noneconomic damages.

 

The appellate court affirmed the portion of the verdict holding the city liable.  The appellate court rejected the city’s argument that the plaintiff had failed to exhaust his administrative remedies.  A party must generally exhaust all available nonduplicative administrative review procedures before resorting to the courts.  This doctrine is subject to several exceptions.  Exhaustion is excused if the relevant administrative procedure fails to satisfy the standards of due process.  Due process entitles a person seeking administrative review to a reasonably impartial, noninvolved reviewer.  The Marshal/Chief’s expected role in deciding the plaintiff’s administrative appeal presented an unacceptable risk of bias that excused the plaintiff from exhausting the remedy.  A conflict between the employee and supervisor alone will not disqualify the superior from serving as a decisionmaker.  Nor must a decisionmaker be completely insulated from any matter relevant to the proceeding.  But under due process, an official whose prior dealings with the employee have created substantial animosity, and whose own character and conduct are central to the proceeding, may not serve as a decisionmaker.

 

The appellate court concluded, however, that the damages awarded were excessive.  The court offered the plaintiff a choice of a remittitur or a new trial on damages.