Government Liability Update

City Does Not Violate E-Scooter Riders' 4th Amendment Rights by Collecting Anonymous Data

In Sanchez v. LADOT, published May 23, 2022, the 9th Circuit Court of Appeals affirmed dismissal of a lawsuit against the defendant city and agency under 42 U.S.C. section 1983 and the California Electronic Communications Privacy Act.  As a condition of giving permits to dockless e-scooter companies, the agency required e-scooter operators to provide vehicle location data through an application programming interface, MDS.  MDS automatically complies real-time data on each e-scooter's location by collecting the start and end points and times of each ride taken.  The plaintiff alleged that the agency could use the information along with other information to identify trips by individuals to sensitive positions.

The 9th Circuit rejected the argument.  A person has no legitimate expectation of privacy in information the person voluntarily turns over to third parties.  The plaintiff knowingly and voluntarily disclosed the information to the e-scooter operators by renting the e-scooters and agreeing to the company's privacy policies.  The nature of the disclosed data indicated a diminished expectation of privacy.  It disclosed the location of an e-scooter typically rerented after each individual trip.  The collection of data was therefore not a search and did not violate the 4th Amendment, or the California constitution.  The court also affirmed denial of the CalECPA claim, on the ground that the statute did not create a private right of action.

Piling onto Suspect in Violent Crime Who Posed No Immediate Threat Violated Clearly Established Right against Use of Excessive Force

In Andrews v. City of Henderson, published May 23, 2022, the 9th Circuit Court of Appeals affirmed a district court's denial of summary judgment to two police detectives.  The plaintiff was a suspected getaway driver in a series of armed robberies of businesses.  The detectives followed the plaintiff and another suspect in the robberies to a courthouse.  One detective followed them into the courthouse, where the plaintiff and the other suspect passed through a metal detector and an x-ray scanner.  The other detective waited outside the courthouse to arrest the plaintiff, because they knew he would be unarmed since he passed through the metal detector.  When the plaintiff and other suspect emerged, the detectives walked slowly toward them without identifying themselves.  When a detective was a foot away from the plaintiff, he lunged and tackled him to the ground.  The other detective landed on top of them as they fell.  The takedown fractured the plaintiff's hip, requiring two surgeries.  The plaintiff sued the detectives and the city under 42 U.S.C. section 1983 for use of excessive force.  The district court denied the officers' summary judgment motion, finding an issue of fact on whether they used excessive force.  It granted in part and denied in part the City's motion for summary judgment.  The officers appealed the denial of their summary judgment to the extent it was based on qualified immunity.

The 9th Circuit applied the two prongs of qualified immunity.  On the first prong, the court ruled the district court properly denied summary judgment on whether the officers violated the 4th Amendment in their use of force.  The officers used a substantial amount of force, which had to be justified by the need for the specific level of force.  The governmental interest in using substantial force was minimal.  Despite the violent crime of which he was suspected, at the time the force was used the plaintiff posed no immediate threat, as he was unarmed (which the detectives knew), was not engaged in criminal conduct, was not exhibiting aggressive behavior, and was not resisting arrest or attempting to flee.  Further, the officers gave no warning, and presented no evidence that tackling the plaintiff was the only option available to them.  The court then analyzed the second prong, and determined whether the plaintiff's constitutional right to be free of the force was clearly established in light of the specific context of the case.  Based on 9th Circuit case law barring tackling suspects of minor crimes who did not pose an immediate threat, combined with case law barring use of substantial force against even armed suspects who posed no threat, the law clearly established that the use of substantial force under the circumstances would violate the plaintiff's 4th Amendment rights.  Even though the plaintiff was suspected of a major, violent crime, the deciding factor is that the suspect posed no immediate threat to the officers and the public.  The court declined to exercise its discretion to review the summary judgment ruling concerning the city.

Public Entity's Attorneys Did Not Violate Minors' Constitutional Privacy Rights by Reviewing the Plaintiffs' Juvenile Case Files without Obtaining a Court Order

In A.C. v. Cortez, published May 13, 2022, the 9th Circuit Court of Appeals affirmed dismissal of a 42 U.S.C. section 1983 suit against a county and its attorneys.  In an earlier lawsuit, the minor plaintiffs sued the county and county social workers for allegedly violating their 4th Amendment rights by interviewing them in the course of a child-abuse investigation, without a court order or parental consent.  Attorneys defending the county in that action reviewed the county's child-abuse investigation file without first obtaining a court order.  The plaintiffs then brought this action, alleging that the attorneys who accessed the file violated their constitutional right to privacy.  They relied on Gonzalez v. Spencer (9th Cir. 2003) 336 F.3d 832.  The district court granted the defendants' motion to dismiss.  In an unpublished decision, the 9th Circuit affirmed the dismissal as to the individual defendants based on qualified immunity.  The decision did not address the plaintiff' Monell claim against the county.  On rehearing, the 9th Circuit addressed the Monell issue.

The 9th Circuit concluded that the Gonzalez case did not identify a per se constitutional right in juvenile records that is always violated by third-party access.  Instead, the court applied the balancing test for determining when the federal constitutional right to informational privacy is properly infringed based on a showing of proper governmental interest.  Under this test, the court presumed that the files contained some highly sensitive information.  The potential for harm seemed low, since the information had not been used in any proceeding.  There were safeguards against misuse, because the plaintiffs allege only the county's attorneys reviewed the county's files; the attorneys have a duty to keep their clients' files confidential.  The most crucial factor is the need for access.  The need is high, because the county's attorneys have a duty to represent their client, and they concluded that adequate representation required reviewing the files.  The plaintiffs' prior lawsuit pertaining to how the county's employees conducted themselves with the plaintiffs gave rise to the attorneys' need to access the files.  The situation is analogous to litigation waiver in other areas of the law.  The need for access is sufficiently high that it outweighs the lesser possibility of harm.  The district court therefore properly dismissed the Monell claim.

On Defense Summary Judgment Motion, Where Bodycam Footage Blatantly Contradicts Plaintiff’s Testimony, Facts Viewed in Light Most Favorable to Footage; 8th Amendment Governs Use of Force against Escaped Inmates

In Hughes v. Rodriguez, published April 21, 2022, the 9th Circuit Court of Appeals affirmed in part and reversed in part a district court order granting summary judgment to the defendant police officers.  The plaintiff inmate escaped from a work crew.  He was on the lam for three weeks.  The defendant officers and a police dog discovered the residence where the plaintiff was hiding.  They used a loudspeaker to urge the plaintiff to exit the home.  When this proved unsuccessful, an entry team gathered in the home’s front entryway.  At this point, the parties’ versions of events diverged.  The plaintiff asserts that he responded to the loudspeaker by yelling he was coming out, and then walked out from his bedroom with his hands held up.  After the officer holding the dog saw his hands were up, per the plaintiff, the officer released the dog, who bit him; the officers piled on him; the officers handcuffed him; and after he was handcuffed and subdued, the officers punched him and the dog continued biting him for two minutes or more.  Bodycam footage, however, shows the spot where the plaintiff states he stood with his hands up, but does not show the plaintiff in the officers’ view until the dog attacks.  The footage shows less than a minute between the dog being released and the plaintiff subdued.  The footage does not clearly show whether the plaintiff was punched after being handcuffed.  The defendants contend that the silence after the sound of handcuffing refutes the plaintiff’s account that he was beaten after being handcuffed.  The plaintiff sued the officers for excessive force under 42 U.S.C. section 1983, negligence, Bane Act violation, and battery.  The district court granted the officers summary judgment as to all claims.

 

The 9th Circuit first focused on whether to assume plaintiff’s version of events true.  The court, following other circuits, determined that the rule in Scott v. Harris (2007) 550 U.S. 372 should be applied to bodycam footage and audio:  For purposes of ruling on summary judgment, to the extent the footage and audio blatantly contradict the plaintiff’s testimonial evidence, the facts are properly viewed in the light most favorable to the footage and audio.  In this case, the footage and audio do not blatantly contradict all of the plaintiff’s testimony.  The district court erred when it viewed all of the plaintiff’s testimony as discredited because part of it was contradicted.  As to events on which there is not blatant contradiction, the facts must be viewed in the light most favorable to the plaintiff.  That includes the plaintiff’s allegation he was beaten after being handcuffed.  The court then determined that the 8th Amendment excessive force standard applies to all uses of force against inmates, including those used on escaped inmates.  Under the 8th Amendment, the relevant inquiry is whether the force was applied in a good-faith effort to maintain or restore discipline, or maliciously and sadistically to cause harm.  Because the injuries inflicted were relatively minor; the use of biting dogs on hiding suspects passes 4th Amendment muster, and thus does not breach the higher 8th Amendment standard; and the officers’ acts in repeatedly urging the plaintiff to comply show a lack of intent to maliciously and sadistically cause harm, the initial use of the dog and handcuffing were proportional to the threat the suspect posed.  Whether the alleged post-handcuff beating and use of dog were proportional was a question for the trier of fact.  Because the bodycam footage shows any such use of force took place during the rapidly unfolding chaos of the struggle to apprehend the plaintiff, the officers other than the officer who unleashed the dog cannot be held liable for failure to intercede or integral participation.  The officer who unleashed the dog was not entitled to qualified immunity, because it is clearly established law that beating a handcuffed suspect as the officer was alleged to have done violates the 8th Amendment.  No particularized case law is necessary for a deputy to know that excessive force has been used when a deputy sics a canine on a handcuffed arrestee who has fully surrendered and is completely under control.  The canine officer’s liability under the Bane Act is an issue of fact as well.  The plaintiff waived appellate review of summary judgment on his state law claims of negligence and battery.

 

One judge, concurring in part and dissenting in part, opined that the bodycam and audio footage was conclusively inconsistent with the plaintiff’s account of being bitten and beaten after being handcuffed.

Attorney Fees Cannot be Recovered under an Indemnity Provision That Is Void because the Agency Had No Authority to Enter Into It

In San Luis Obispo Local Agency Formation Commission v. Central Coast Development Co., published May 5, 2022, The Second District Court of Appeal, Division 6 reversed an award of attorney fees against the plaintiff agency.  A developer and a city applied to the plaintiff agency for a permit to annex a parcel of property.  The application included an indemnity agreement obligating the applicant to defend, indemnify, hold harmless and release the agency from any proceeding brought to attack the agency's action on the proposal.  The agency denied the annexation application.  The city and developer sued the agency.  The agency won.  It billed the city and developer for its attorney fees and costs.  They refused to pay.  The city sued the developer to recover fees and costs extended in the suit against the agency.  The agency cross-complained against the city and developer for fees and costs.  The cross-complaint was based on the indemnity provision.  The trial court granted the city and developer judgment on the pleadings against the agency.  The agency appealed.  While the appeal was pending, the city and developer moved for attorney fees based on Civil Code section 1717.  The trial court granted the motion and awarded fees and costs to the city and developer.  The appellate court then affirmed the trial court's decision regarding the  indemnity agreement.  It ruled that the indemnity agreement was not supported by consideration and that the agency had no statutory authority to impose an indemnity agreement as a condition of the agency's statutory duty to consider the application.  The agency then appealed the order granting attorney fees. It asserted that the indemnity agreement is void as an an illegal and ultra vires contract.

The appellate court agreed.  When a public agency is not authorized to make an agreement, the agreement is void and the public agency may neither enforce nor be liable on the contract.  It follows that the agency is not liable for attorney fees based on section 1717.  Section 1717 is based on contract.  The result should be no different than with contracts that are void for illegality.

School Personnel Do Not Owe Students Duty to Review Alarm Data and Video Recordings to Constantly Monitor Everyone on Campus

In Doe v. Anderson Union High School Dist., published May 4, 2022, the Third District Court of Appeal affirmed summary judgment for the defendant school district, principal, and superintendent.  A teacher at a high school in the district had a sexual relationship with the plaintiff student, then 17.  The relationship included sexual activity in his classroom.  The school district had no facts, reports, or rumors that the teacher had engaged in any improper relationship.  There were video security cameras aimed at the doors of the classroom.  The video footage was saved for 14 days before automatic erasure.  Per district policy, footage was reviewed only if the district learned of an incident that may have been caught on video.  The district maintained an alarm system that covered the main building and the classroom.  Each employee had a code to deactivate the alarm.  The district had not requested data from the alarm company on when alarms were deactivated or by whom.  The student sued the defendants for negligent hiring and negligent supervision.  The defendants moved for summary judgment on the ground that there was no evidence they knew or should have known that the teacher posed a risk of harm to students.  The plaintiff conceded lack of evidence of negligent hiring, and so focused on negligent supervision.  In opposition to summary judgment, the plaintiff submitted an expert declaration from a retired principal and school administrator.  He opined that the principal had a duty to monitor teachers to determine if they were spending too much time on campus late at night, including interviewing teachers and reviewing video footage.  The trial court ruled that the risk to the plaintiff was not foreseeable.

The appellate court ruled that the district's administrators' duty of supervision to protect students was limited to the risks of harm that were reasonably foreseeable--those known to the administrators or that reasonably should have been known to them.  School districts are not the insurers of their students' physical safety.  Sexual misconduct by school personnel is not inherently foreseeable.  The administrators did not know that the teacher would have se with the student, and had no information that would support a conclusion that they should have known.  They therefore did not have a duty to review alarm data and video recordings to constantly monitor all teachers, students, and campus visitors.  Nor did they have such a duty specifically as to the plaintiff and the teacher.  To impose such a duty on this record would be unreasonable.

"Watchful Waiting" Treatment of Prisoner's Medical Problem That Was Worsening Violates Clearly Established Law

In Stewart v. Aranas, published May 4, 2022, the 9th circuit affirmed the district court's denial of qualified immunity to prison officials in a prisoner's lawsuit under 42 U.S.C. section 1983.  According to the summary of facts in the majority opinion, the prisoner complained to prison staff of severe pain when urinating and difficulties in urination.  Staff examined him, gave him generic medication, and sent him on his way.  Over the next three years, the prisoner's urethra, testicles, and abdominal areas grew inflamed.  The prisoner continued to complain to prison staff.  They did not change their treatment.  The prisoner was transferred to another facility in an eight-hour ride.  The staff at the new facility initiated emergency medical care.  A catheterization drained fourteen pounds of fluid from the prisoner's bladder and unrinary system.  He underwent prostate surgery.  He claims long-term kidney disease, erectile dysfunction, urine build up, and pain.  He sued the prison officials alleging deliberate indifference to serious medical needs.  The officials appealed denial of qualified immunity on the second prong of the immunity--the law was clearly established.

The 9th Circuit agreed that the district court properly denied qualified immunity on the second prong.  The prison officials claimed that no clearly established law barred their "wait and see" treatment plan for the prisoner's enlarged prostate.  But case law establishes that denying, delaying, or intentionally interfering with medical treatment can violated the constitution.  At some point, "wait and see" becomes deny and delay.  The prisoner's condition sharply deteriorated, yet prison officials never deviated from their "wait and see" treatment plan.  A delay in treatment can violated the constitution if it results in injury.  Further, it is clearly established that prison officials violate the constitution when they persist in a treatment known to be ineffective.

A concurring judge agreed that a reasonable prison official with awareness of a factual predicate like the one set forth in the majority opinion would have violated clearly established rights by a treatment plan of "watchful waiting."  But the judge opined the records showed a different factual predicate than the one set forth in the opinion.  Since the defendants appealed only denial of qualified immunity on the second prong, the first prong--whether the plaintiff's constitutional rights were actually violated--was not an issue on appeal.

 

Because City Allowed Public to Fly Flags at City Hall, Flag Flying Was Not Government Speech, and City Violated First Amendment by Refusing to Fly Religious Flag

In Shurtleff v. City of Boston, published May 2, 2022, a unanimous U.S. Supreme Court reversed a district court and appellate court decision that the defendant city did not violate the First Amendment by declining to fly a religious flag.  The Boston City Hall has three flagpoles.  One flies the American flag, the second flies the Commonwealth of Massachusetts flag, and the third usually flies the city flag.  For years, the city has allowed groups to hold ceremonies on the city hall plaza and fly flags of the groups' choice, without city involvement in choosing or approving flags.  The plaintiff asked to hold an event on the plaza and fly what he described as the "Christian flag"--a red cross on a blue field against a white background.  The city declined, out of concern that flying a flag that favored a particular religion at city hall would violated the First Amendment's Establishment clause.  The plaintiff sued the city, alleging violation of the First Amendment's Speech Clause.  The district court granted the city judgment, and the appellate court affirmed.

The Supreme Court held that the city had violated the plaintiff's free-speech rights.  The Free Speech Clause does not prevent the government from declining to express a view.  The question was whether flying a flag on the third flagpole was government speech or private speech.  The boundary between government speech and private expression can blur when the government invites  people to participate in a program.  In those situations, the court conducts a holistic inquiry to determine whether the government intends to speak for itself, or to regulate private expression.  The court looks to the history of the expression at issue; how the public is likely to perceive who is communicating; and the extent to which the government has actively shaped or controlled the expression.  Applying that analysis here, the court held that a government flying a flag at the seat of government is traditionally seen as government speech.  The public's perception of the flags under the circumstances did not resolve the matter.  The most salient facts were that Boston neither actively controlled the flag raisings nor shaped the messages the flags sent.  The city had never refused to fly a group's flag as part of a ceremony until it refused the plaintiff's.  This led the Court to conclude the third-party flag raisings were private, not public, speech.  The city's refusal to let the plaintiff fly the flag based on a religious viewpoint violated the plaintiff's Free Speech rights by engaging in impermissible viewpoint discrimination.  Six justices joined the majority opinion.  One of those justices, and two others, filed concurring opinions.