Government Liability Update

Use of Deadly Force against Person Armed with Bat Who Does Not Pose Immediate Threat Violates Clearly-Established Law

In Estate of Najrera Aguirre v. County of Riverside, published March 24, 2022, the 9th Circuit Court of Appeals affirmed denial of a police officer’s motion for summary judgment based on qualified immunity.  The defendant officer received radio reports that a person with a bat-like object was threatening a woman with a baby, and was destroying property.  The details of the conduct reported are disputed.  When the officer arrived, he ordered the decedent, at gunpoint, to drop the stick he held.  The decedent did not do so; there are accounts that he verbally refused to do so.  The officer sprayed the decedent with pepper spray, which blew back into the officer’s face.  The decedent was largely unaffected.  Some witnesses said that the decedent retrieved a bat from bushes and advanced on the officer; others say that he held the stick point down and did not advance.  The officer shot the decedent six times from no more than 15 feet. The officer contends the decedent faced him all that time.  The fatal bullets came from the back, indicating that the decedent was turned away from the officer when those bullets were fired.  The decedent’s estate and children sued the officer under 42 U.S.C.  section 1983.  The court denied the officer’s summary judgment motion, finding disputed issues of fact.

 

The 9th Circuit affirmed.  It ruled that it had jurisdiction to consider the appeal, despite the court finding issues of fact.  It then ruled that the motion was premature, because if the factual issues were resolved in the plaintiffs’ favor, the use of deadly force on a suspect who was not posing an immediate threat both violated the 4th Amendment and violated clearly established law.  It was obvious that using deadly force on a suspect who did not pose an immediate threat to the officer or others violated the 4th Amendment; and 9th Circuit case law at the time clearly established that even if a suspect was holding a weapon, use of deadly force was excessive if the suspect was not acting in a way that posed an immediate threat.

Government Code Immunity for Mental Examination's Application to School District's Threat Assessment Is Limited

In Cleveland v. Taft Union High School District, published March 25, 2022, the Fifth District Court of Appeal affirmed a judgment entered after a jury verdict.  A high school student told fellow classmates about a dream he had of shooting multiple students.  The school district suspended the student and performed a threat assessment.  As part of the threat assessment, the school psychologist interviewed the student.  The assistant principal oversaw the threat assessment and interviewed other students about the student.  The School Resource Officer searched the student's house for weapons and a "hit list," and did not find anything.  The school psychologist prepared a report determining the student could return to school.  Students made additional complaints about the student over the succeeding months, and the assistant principal assessed those events.  Ten months after making the initial statements, the student brought a shotgun to class and shot the plaintiff.  The plaintiff sued the school district and its administrators for negligence.  The school district asserted that under Government Code section 855.6, which immunizes public entities and employees from liability for inadequate physical and mental examinations made to determine whether a person is a threat to himself or others, it and its employees were immune from liability for making an allegedly inadequate threat assessment.  The trial court determined that the immunity applied only to the school psychologist's examination of the student and his conclusions from that examination, and did not apply to the rest of the threat assessment.  The jury held the school psychologist, the assistant principal, other administrators, and a school security officer were negligent, and assigned them collectively 54% of the fault for the shooting.  The district was held liable for damages.  On appeal, the district contended that section 855.6's immunity applies to the entire threat assessment.

The appellate court agreed with the trial court.  Analyzing the law and policy concerning administrators' duty of care to protect students, as well as the legislative and case law history of section 855.6, the court concluded that the immunity applies to any public employee, not just medical personnel.  But it interpreted the term "mental examination"  in the statute to apply only to the process of inspecting visually, or by use of the other senses, the physical, mental, and emotional state of the person examined.  Typically, this would involve a face-to-face meeting, although it could also include interviews by telephone or videoconference.  The court determined that applying section 855.6 to all negligent acts or omissions of a threat assessment team would undermine the goal of protecting students, rather than encouraging school districts to diligently perform the threat assessment.  The court responded to the concern that the threat of liability would dissuade school districts from performing threat assessments by reasoning that the districts' duties to protect their students would incentivize them to continue to perform the assessments.  The acts and omissions the plaintiff's expert found in the threat assessment's performance were therefore outside the scope of the immunity.

Pollak, Vida & Barer participated in the appeal.

Court Has Discretion to Deny Fee Award under California Public Records Act Where Petitioner Obtains Minimal or Insignificant Documents

In Riskin v. Downtown Los Angeles Property Owners' Association, published March 17, 2022, the Second District Court of Appeal, Division 3 reversed an award of attorney fees under the California Public Records Act.  After the defendant association produced 46 e-mails in response to a CPRA request and asserted others were exempt from production, the plaintiff petitioned for a writ seeking to compel production of further documents.  The trial court reviewed two documents in camera, and found an e-mail string containing 20 sentences total contained some disclosable information.  The association sought an appellate writ challenging disclosure, which was summarily denied.  The plaintiff sought fees and costs totaling $123,119.11.  The trial court awarded fees of $71,075.75.  The trial court rejected the association's argument that the court had discretion to deny attorney fees where the documents obtained are so minimal or insignificant as to justify a finding that the plaintiff did not prevail.  The court reasoned that because Government Code section 6259, subdivision (d) provides that the court shall award fees to a prevailing party, the trial court had no discretion to deny a fee award.

The appellate court disagreed.  It reviewed the case law interpreting the CPRA and fee awards in other contexts, and concluded that the minimal and insignificant standard applies to fee awards in CPRA cases.  It remanded the case to the trial court to determine whether the standard warranted denying fees in this case.

School District Does Not Owe Mandatory Duty to Student to Defend Him When He Is Sued for Injury Caused During School Sports Activity

In Sruouy v. San Diego Unified School Dist., published February 24, 2022, the Fourth District Court of Appeal, Division 1 affirmed dismissal after demurrer of a former high school student's lawsuit against a school district seeking indemnity for defense costs.  During a high school football game, the plaintiff, then still a minor, blocked an opposing player who then fell against a referee's legs, injuring the referee.  The referee sued the school district and the plaintiff.  The plaintiff initially thought the school was defending him, and a default was entered against him.  When he discovered that the school's attorney was not defending him and that he was in default, the student obtained counsel and got the default set aside.  Eventually the referee dismissed the student from the case for a waiver of costs.  The plaintiff then presented a claim to the school district for his attorney fees.  After the claim was denied, the plaintiff, who had graduated, sued the district for express indemnity, equitable indemnity, and implied indemnity.  The student alleged that under Government Code section 815.6, the school district owed the student a mandatory duty to defend him in the lawsuit.  He alleged that the mandatory duty was created by Education Code section 44804 (which imposes liability on a school district for injury occurring off-campus in a school-sponsored activity if the injury occurs through failure to exercise reasonable care); article IX, section 5 of the California Constitution (which provides for free schooling); and title 5, section 350 of the California Code of Regulations (which provides a student shall not be required to pay any fee, deposit, or other charge not specifically authorized by law).  The trial court sustained the district's demurrer without leave to amend, ruling that the plaintiff had failed to plead a mandatory duty to protect or indemnify him from incurring attorney fees.

The appellate court agreed.  To create a mandatory duty under Government Code section 815.6, an enactment must be obligatory, rather than discretionary; and the duty must be designed to protect against the particular kind of injury the plaintiff suffered.  None of the enactments cited met those tests.  The district was not required to provide the plaintiff with a legal defense as part of its constitutional free school guarantee.  The constitution guarantees free educational activities, and the lawsuit was not an educational activity.  Further, the free schooling provision pertains to expenses peculiar to education.  Representation in a lawsuit is not peculiar to education.  The argument that the cost of retaining a lawyer was a charge for participating in the football team, in violation of section 350's regulation, failed, because the regulation is based on the constitution's free schooling provision; and because the cost of defense was incurred after the plaintiff graduated and was no longer on the team.  Education Code section 44808 cannot be interpreted to require schools to defend students whenever they are sued for causing injuries while under supervised school activities, because that would make school districts insurers of student safety by requiring them to defend students even absent any fault by the district.  Nothing about the history or interpretations of section 44808 indicate it was intended to broaden the scope of school district liability at all, much less to this extent.  Further, while Education Code section 32221 requires school boards to provide medical insurance for school athletes, providing any other insurance is discretionary rather than mandatory.  Finally, the plaintiff's argument on appeal that the California Constitution's equal protection clause provided a ground for recovery failed, because monetary damages cannot be recovered under that provision.

Before the Supreme Court Ruled Retaliatory Arrests Could Be Actionable Despite Probable Cause, Circuit Precedent Clearly Established That Right, Defeating Qualified Immunity

In Ballentine v. Tucker, published March 8, 2022, the 9th Circuit affirmed in part and reversed in part a district court's ruling on a police detective's summary judgment motion based on qualified immunity.  On multiple occasions, the plaintiffs engaged in protests involving chalking anti-police messages on public sidewalks.  On some occasions, they were cited for violating the state's anti-graffiti law; on other occasions, officers observed them without citing them.  The defendant detective issued declarations of arrest of the plaintiffs for two of the incidents.  The declarations referred to the plaintiffs' membership in police protest groups and the content of some of their anti-police chalk messages.  A criminal complaint was filed against the plaintiffs for conspiracy to commit placing graffiti and placing graffiti on property.  The plaintiffs were arrested.  The DA ultimately dropped all charges.  The plaintiffs sued the detective under 42 U.S.C. section 1983 for allegedly violating their 1st Amendment Rights by retaliatory arrest.  In ruling on the detective's summary judgment motion, the district court ruled on the first prong of qualified immunity that there was an issue of fact on whether the detective violated the plaintiffs' 1st Amendment rights.  But the court granted summary judgment on the second prong of qualified immunity, ruling that in August 2013, when the arrests took place, the law had not clearly established that a retaliatory arrest violated the 1st Amendment if the arrest was supported by probable cause.

The 9th circuit affirmed the ruling that a reasonable jury could find the detective violated the plaintiffs' 1st Amendment rights.  In addressing the first prong of qualified immunity--whether, viewing the facts in the light most favorable to plaintiffs, the detective violated the constitutional right at issue--the court applies current law.  Under Nieves v. Bartlett (2019) 139 S.Ct. 1715, plaintiffs bringing 1st Amendment retaliatory arrest claims must generally plead and prove absence of probable cause for the arrest; but there is a narrow exception for cases where officers have probable cause to make arrests, but typically exercise their discretion not to do so.  Here, the plaintiffs presented objective evidence that others who chalked sidewalks and did not engage in anti-police speech were not arrested.  Further, the detective cited the content of the speech in seeking the arrest.  While the jury could also infer that the detective would have arrested the protestors absent the content of their speech, the issue was for a jury to decide.  But the 9th Circuit reversed the district court's decision that the law on the subject was unclear in 2013.  While Nieves was not published until 2013, circuit case law can clearly establish the law.  9th Circuit cases that were published before 2013 clearly established that retaliatory arrests could be actionable under the 1st Amendment despite the existence of probable cause.  An unpublished 9th Circuit decision ruling that the law on the subject was not clearly established in 2013 was both nonbinding and wrongly decided.  Although the case law did not deal specifically with the facts of this case, the case law was close enough to give officers fair notice that the 1st Amendment prohibited arresting the plaintiffs.  The 9th Circuit therefore reversed summary judgment for the detective.

Police Agency Vicariously Liable for Injury Resulting when Officer's Firearm, Left in Vehicle, Is Stolen and Used

In Perez v. City and County of San Francisco, published March 1, 2022, the First District Court of Appeal, Division 5 reversed summary judgment granted to the defendant city.  The City's police department allowed officers to carry a secondary firearm on duty, and authorized them to carry loaded handguns when off-duty.  Both department policy and state law required officers to secure handguns in unattended vehicles.  The officer in this case had a personal handgun that the department had approved and qualified as a secondary firearm.  He regularly carried the handgun on duty, and transported it when he commuted to and from work.  He regularly carried it when off-duty.  He was a department specialist who worked with a special operations group outside of patrol assignments.  There was evidence specialists were on call 24/7 and were not permitted to respond to incidents without a firearm.  The officer was assigned to a training session in a different county.  When the officer returned home, during scheduled work hours, he left the secondary firearm unsecured inside his vehicle.  That night, the vehicle was broken into, and the firearm stolen.  The stolen firearm was used to kill the son of the plaintiff who brought this action.  The trial court granted the city summary judgment on the ground that the undisputed facts demonstrated the officer was not acting within the scope of his employment.

The appellate court disagreed.  Viewed in the context of the enterprise of policing, the centrality of firearms to that enterprise, and the underlying rationale for respondeat superior that losses fairly attributable to an enterprise--those that foreseeably result from the conduct of the enterprise--should be allocated to the enterprise as a cost of doing business, a jury could reasonably find a nexus between the department's policing enterprise and the risk that one of its officers would negligently fail to secure a department approved secondary firearm upon returning home from work.  A jury could therefore find the officer's negligent failure to secure his approved firearm in an unattended vehicle upon returning home from a department-assigned training fell within the scope of his employment.  The court disagreed with the majority opinion in Henriksen v. City of Rialto (1993) 20 Cal.App.4th 1612, in which an officer's accidental discharge of his firearm while drinking was friends was found to be outside the scope of his employment.  The court opined that the Henriksen majority opinion failed to rigorously apply the rules for respondeat superior liability.  The court further opined that the case was distinguishable from Henriksen, in that the officer's possession of a department-approved firearm was not the sole factor linking his conduct to his employment, and in that the officer here did not consume alcohol before the tortious act.

Where Facts Show Officers Did Not Have Time to Deliberate before Using Deadly Force, Use of Force under Circumstances Did Not Shock Conscience and so Did Not Violate Family's 14th Amendment Rights

In Ochoa v. City of Mesa, published February 28, 2022, the 9th Circuit Court of Appeals affirmed summary judgment in favor of defendant police officers and their agencies.  Two 911 calls about decedent within eight minutes of each other indicated decedent was under the influence of drugs, had been in a fight with his ex-girlfriend in which a handgun was involved, and had entered a 911 caller's house without permission armed with two knives and left in a car.  The decedent refused to pull over when followed by a marked police car.  The decedent fled to a nearby home.  A frantic man on the second floor shouted to officers that the decedent was there and was not supposed to be; and that the man was locked with children with him in a bedroom.  As police converged, the man brought several children onto the roof to evacuate them.  The decedent appeared at a window looking upset and possibly holding a knife.  He ignored orders to exit.  The officers kicked open the front door.  They saw the decedent enter the back yard.  Standing between the decedent and the home, the officers formed an L-shape around him.  The decedent held two knives in one hand and refused to obey the officers' commands to drop the knife. Officers fired a beanbag round at the decedent and unleashed a police dog at him.  He took a large step sideways and, per plaintiffs, away from the officers.  The officers fired 30 shots at decedent.  He fell with one hand tucked near his waistline.  He died at the scene.  Two knives were recovered at the scene.  Bodycam video shows 16 seconds elapsed between the officers' entry into the home and the shooting.  The decedent's family sued the officers and agencies under 42 U.S.C. section 1983, alleging that the officers violated the 14th Amendment by depriving the family of the decedent's companionship and family association.  The decedent's estate did not assert any claims.  The district court granted summary judgment on the ground that the family's 14th Amendment rights were not violated.

The 9th Circuit held that the district court had applied the correct analysis.  Since the decedent's 4th Amendment rights were personal, the family could not assert them.  They instead asserted family liberty interests under the 14th amendment due process clause.  A claim asserting the police officers violated the 14th amendment during a police shooting must show that the officers' conduct "shocks the conscience."  Two tests are used to determine whether officers' conduct shocks the conscience.  Which test is used depends on whether the officers had time to deliberate their conduct before using force.  If the situation at issue escalated so quickly that the officer had to make a snap judgment, a more demanding showing must be made:  That the officers acted with a purpose to harm the decedent for reasons unrelated to legitimate law enforcement objectives.  Here, the undisputed factsindicated that the officers did not have time to deliberate before shooting the decedent, and acted for the legitimate law enforcement purpose--protecting themselves, the people in the home, and the public at large.  Nothing in the record suggests that the officers had an improper purpose to harm.  Although the plaintiffs alleged the officers continued to shoot decedent while he was on the ground, and laughed and cheered when the police dog dragged the decedent so that they could see his hand, there was no direct evidence supporting these allegations.  Further, the officers had legitimate law enforcement purposes for the continued firing, due to concern the decedent still had knives in his waistband that he was reaching for.  The alleged cheering and laughing took place after the officers had fired at the decedent.