Government Liability Update

The Hazardous Recreational Activity Immunity Protected a City from Liability for a Paddleboarder's Drowning

In Mubanda v. City of Santa Barbara, published January 24, 2022, the Second District Court of Appeal, Division 6, affirmed summary judgment for the defendant city in a wrongful death lawsuit alleging a dangerous condition of public property.  The city leased space in the Santa Barbara Harbor area to a paddleboard rental company.  The lease required the company to pay the city 10 percent of the company's gross receipts from rentals of paddleboards.  The harbor has several artificial features.  The harbor is dredged annually to maintain a navigable depth.  City officials sought to minimize the risks in paddle boarding by taking such precautions as creating harbor maps showing safer areas to paddle board; posting signs reminding paddle boarders to stay in the preferred paddling area; and instructing tenants to distribute to those who rented paddle boards a lanyard with safety points and to direct the customer to wear the lanyard.  The plaintiff's decedent fell off a rented paddle board between two artificial constructs in the harbor.  The trial court ruled that the city was entitled to summary judgment under Government Code section 831.7's immunity for hazardous recreational activities.

The appellate court agreed.  There was no dispute that paddle boarding is a dangerous recreational activity.  Section 831.7's non-exclusive list of hazardous activities includes boating, and there is no evidence that paddle boarding is less hazardous.  The plaintiff contended that the statutory exceptions to the immunity applied.  The court rejected the argument that the failure to warn exception applied.  The exception does not apply to failure to warn of hazards inherent in the activity.  The risk of falling off a paddle board and drowning in a harbor is inherent in that type of activity.  Although the harbor was deeper at the point where the decedent drowned, there was no evidence that the depth increased the risk of drowning as opposed to the surrounding area.  The gross negligence exception required evidence of want of even scant care or an extreme departure from the ordinary standard of conduct.  There was no such evidence in this case.  Instead, the city took measures to promote the safety of paddle boarding in the area.  Although the plaintiff's expert opined that the city's conduct constituted an extreme departure from the applicable standards of care, the opinion was simply an expert's expression of his general belief as to how the case should be decided, and is not admissible for that purpose.  Finally, the except for specific payment of fees did not apply.  While the city received a percentage of gross sales for paddle board rentals, that is not the same as receiving a specific fee for permission to participate in paddle boarding.

Officers' Use of Force to Remove Passively Resisting Protester at City Council Meeting Did Not Violate the Fourth Amendment

In Williamson v. City of National City, published January 24, 2022, the 9th Circuit Court of Appeals reversed denial of the defendant police officers' summary judgment motion, which was based on qualified immunity.  The plaintiff participated in a "die in" protest at a city council meeting.  In the middle of the meeting, they chanted and lay down on the floor near the public speaking podium.  Several others chanted along in the audience.  The protesters refused the mayor's call to order, and the officers' warning that they would be arrested.  The protesters acted as dead weight and refused to cooperate as they were carried out.  The defendant officers handcuffed the plaintiff with her wrists behind her back and pulled her to a standing position.  They lost their grip and she rolled over on her stomach.  The officers each held the plaintiff under an arm and lifted her.  She acted as dead weight.  The officers pulled the plaintiff backward by her arms while she was nearly in a seated position.  An officer dragged her by her left wrist and forearm.  When the plaintiff told the officers they had hurt her shoulder, they called an ambulance and double-cuffed her to lessen the tension.  The plaintiff refused paramedics' offer to take her to the hospital.  She suffered a sprained wrist, mild swelling, and (allegedly) a torn rotator cuff.  She sued the officers under 42 U.S.C. section 1983 and the Bane Act for allegedly using excessive force in violation of the Fourth Amendment.  The district court denied the officers' qualified immunity summary judgment motion, finding material issues of fact on whether the officers used excessive force in light of the plaintiff's injuries.

The 9th Circuit ruled that the officers were entitled to summary judgment on the first prong of qualified immunity:  viewing the facts in the light most favorable to the plaintiff, they did not use excessive force in violation of the Fourth Amendment.  The Fourth Amendment analysis balances the type and amount of force used against the government interest served.  Here, the use of force was minimal.  The inherent risk of officers pulling someone who has gone limp and refuses to move by her own power is not significant.  The force used was less than that found minimal in other 9th Circuit cases.  Although the plaintiff's injuries were not trivial, they were less than those of plaintiffs in cases where the force was found minimal.  The district court erred in focusing exclusively on the plaintiff's injuries in determining whether the force was excessive.  While the injuries are relevant, the type and amount of force used and the risk of harm it created must also be considered.  If a person reacts more adversely to a use of force than would be expected objectively, that does not itself establish that the officer did not act as a reasonable officer.  The government's interest in using force against the protesters was low, but not nonexistent.  The protesters had a right to express their disagreement with government, but they did not have a right to prevent duly installed government from performing lawful functions.  Balancing the interests, the minimal use of force aligned with the low governmental interest involved.  Because the officers did not violate the Fourth Amendment, they were also entitled to summary judgment on the Bane Act cause of action.

Because County Sheriff Who Enforces County Bail Schedule Acts as an Instrument of the State, the State Is Liable for Section 1988 Attorney Fees if the Enforcement Violates the Fourteenth Amendment

In Buffin v. City and County of San Francisco, published January 13, 2022, the 9th Circuit Court of Appeals affirmed a district court decision awarding $1,950,000 in attorney fees against the State of California under 42 U.S.C. section 1988.  A class action was brought under 42 U.S.C. section 1983  against a county sheriff for enforcing the county's bail schedule.  The action alleged that the enforcement of the bail schedule without consideration of financial circumstances violated the Fourteenth Amendment.  Under the statutory scheme, when a suspect was arrested without a warrant and had not had his or her first hearing, bail is set by the sheriff in an amount dictated by a uniform countywide schedule of bail.  State law imposes a duty upon the Superior Court of each county--an arm of the state--to adopt the county-wide bail schedule.  The county sheriff must comply with the schedule, without discretion.  The sheriff and the state attorney general were named as defendants. The district court ruled that the sheriff acted on behalf of the state in enforcing the bail schedule.  As a state actor, the sheriff received Eleventh Amendment immunity from monetary damages, as did the Attorney General.  But the class could seek injunctive or declaratory relief against the sheriff in her official capacity under Ex Parte Young, on the ground that the sheriff enforced the allegedly unconstitutional law.  The Attorney General was dismissed.  The Attorney General did not take over the defense of the action.  The class prevailed on summary judgment.  The parties agreed to the amount of the attorney fees.  The district court then decided that the state was liable for the attorney fees.  The state appealed.

The Court of Appeals ruled that the district court had acted within its discretion.  Case law established that the state's Eleventh Amendment immunity from monetary damages under 42 U.S.C. section 1983 did not bar its liability for attorney fees under section 1988.  An issue of first impression in the 9th Circuit was who should be liable for attorney fees in this situation--the state, the county, or the official-capacity defendant.  The state argued that because it was not a party to the suit, it should not be held liable for the fees.  The 9th Circuit followed the reasoning of sister circuits and ruled that because the official-capacity defendant, the sheriff, was sued for acting as a discretionless instrument of the state, the state was properly held liable for the fees.  The state had both notice and an opportunity to contest the fees, although it did not do so. 

Officers Allegedly Violated Clearly-Established Law by Using Taser and Restraint Hold on Detainee Who Had Stopped Resisting

In Hyde v. City of Willcox, published January 6, 2022, the 9th Circuit affirmed in part and reversed in part a district court's denial of a motion to dismiss an action brought under 42 U.S.C. section 1983.  The plaintiffs' complaint alleged that decedent had mental health issues managed through medications.  He was arrested on suspicion of driving under the influence.  While detained, he did not receive his prescribed medication.  After several hours, he became restless and charged around the booking area and female cell area, falling once and injuring himself.  The officers tased and struck the decedent multiple times, as they restrained him with handcuffs and leg irons and placed him in a restraint chair.  The decedent stopped breathing.  The officers were unable to revive him.  He died in the hospital the next day.  Causes of death included blunt force injuries, kidney damage caused by muscle breakdown, enlarged heart, and coronary artery atherosclerosis.  The decedent's parents sued the officers for use of excessive force, the municipal and supervisory defendants for failure to train, and all defendants for violating substantive due process and equal protection.  The defendants moved to dismiss on the grounds that the individual officers were entitled to qualified immunity and the plaintiffs had failed to plausibly plead a case for Monell liability.  The defendants appealed the denial of qualified immunity, and asked the 9th Circuit to exercise pendant appellate jurisdiction over the Monell claim.

The 9th Circuit ruled that the complaint plausibly alleged that two of the officers violated the decedent's clearly-established constitutional rights.  Until the decedent was subdued and restrained, the officers' uses of tasers, blows, and restraints were reasonable.  Although the plaintiffs alleged that use of force against a mentally ill person was unreasonable, the complaint did not plausibly allege that the officers knew of the decedent's mental conditions or his prescriptions.  Instead, the complaint alleged that the decedent was calm and cooperative until he began running around and injuring himself.  But two officers' use of a taser and a restraint hold after the decedent was subdued and restrained was unreasonable.  Although the complaint was less than clear about the decedent's actions, and the parties did not include the jail video in the record, the court construed the complaint in favor of the plaintiffs.  Ninth Circuit case law clearly establishes use of intermediate force, such as a head restraint or taser, on a restrained and non-resisting suspect is unreasonable.  It also makes clear that officers must reassess use of force in an evolving situation as circumstances change.  The two officers allegedly had two minutes to realize the decedent, who was handcuffed, shackled, and exhausted, could no longer resist and did not pose a threat.  The court therefore affirmed the denial of qualified immunity to those officers.  But the panel reversed the ruling that the complaint plausibly alleged denial of medical care by denying him access to his medication and by not providing him medical care after the altercation.  The complaint did not plausibly allege that the named defendants played any role in denying the decedent his medication.  It also did not plausibly allege that the defendant officers knew the decedent was in medical distress after the melee.  Qualified immunity thus barred the claim.  The supervisor defendants were entitled to qualified immunity for the failure to train claim.  The plaintiffs did not allege any basis for the claim other than this single incident, which is inadequate to make out a claim for failure to train.  Because the municipalities' Monell liability was intertwined with the supervisors' liability (since the complaint relied on the same facts in alleging failure to train against the supervisors and municipalities), the court had jurisdiction to entertain the challenge to the failure to dismiss the Monell claim, and reversed it.