Government Liability Update

Prison Guard Entitled to Qualified Immunity for Shooting Inmate in Fight with Less-Lethal Round, and Nurse Entitled to Qualified Immunity for Subsequent Examination of Prisoner

In Simmons v. Arnett, published August 31, 2022, a divided panel of the 9th Circuit Court of Appeals affirmed summary judgment for a prison guard and a prison nurse in a 42 U.S.C. section 1983 lawsuit alleging violation of the 8th Amendment.  The plaintiff prisoner was attacked by another inmate.  The defendant guard was the only guard in the command center.  He could not leave the command center.  He had both a semi-automatic rifle loaded with live rounds, and a less-lethal 40 mm. weapon that shot sponge-tipped plastic rounds.  He used the less-lethal weapon to shoot at the plaintiff inmate to break up the fight.  He shot the plaintiff in the leg, breaking the leg, and then in the thigh and buttocks.   Prison staff immediately took the plaintiff to the prison's medical room.  The defendant nurse asked the plaintiff how he was injured.  He stated he slipped in water.  She wrote that down.  He then said he had been shot in the backside.  She wrote that he had lower leg pain.  WIthin minutes, she had him transferred to the prison's emergency room, where his leg and later his thigh and buttocks were treated.  The notes she made were not sent with him.  He alleged that the guard used excessive force and that the nurse was deliberately indifferent in her medical care.

The appellate panel majority ruled that neither defendant violated the plaintiff's 8th Amendment rights.  A use of force violates the 8th Amendment if it is not a good faith effort to maintain or enforce discipline, and the defendant instead acts maliciously and sadistically for the purpose of causing harm.  Viewing the facts in the light most favorable to the plaintiff (including the fact that the plaintiff was not fighting back), the guard acted reasonably in acting to stop the fight without leaving the command center, and in using the least use of force available to him.  Further, the guard was entitled to qualified immunity, because his conduct did not violate clearly-established law.  Case law holding that use of deadly force on an inmate bystander to a fight violated the 8th Amendment did not clearly establish the use of force was excessive, because the case did not involve a guard who could not leave his post and who used less-lethal force.  The nurse was entitled to summary judgment because the facts did not show any deliberate indifference on her part in failing to make a complete examination, and in writing the plaintiff's own description of what caused his injury in the notes (which were not used in the inmate's treatment).  Instead, the facts showed that the nurse acted properly.

A dissenting judge agreed the nurse was entitled to summary judgment, but opined that qualified immunity should not be found at the summary judgment stage.  If the facts were resolved in the inmates favor, the judge wrote, the use of force on an inmate who was not fighting violated clearly established law.

Alter-Ego Theory of Liability May Be Applied to Public Entities

In Cam-Carson, LLC v. Carson Reclamation Authority, published August 23, 2022, the Second District Court of Appeal, Division 8 reversed dismissal of a lawsuit after demurrer.  The plaintiff, a commercial real estate developer, contracted with the defendant city and the defendant reclamation authority (a joint powers authority created to oversee environmental remediation on the subject site) to develop a 40-acer site.  The plaintiff alleged that the city and authority engaged in gross mismanagement and malfeasance that disrupted the project, causing damages to the plaintiff of over $80 million.  Under the agreement between the plaintiff and the authority, the authority was responsible for constructing remedial systems, build offsite improvements.  The authority allegedly mismanaged the project.  The plaintiff alleges causes of action for breach of contract against the authority, and against the city and a successor interest to a redevelopment agency as alter egos of the authority; and breach of the implied covenant of good faith and fair dealing against the city and authority, and the city defendants as alter egos.  The trial court sustained the city's and successor agency's demurrer to the complaint, on the ground that the city was not a party to the contract, and there were insufficient allegations of alter ego liability.

The appellate court ruled there were sufficient allegations of alter ego liability in the complaint.  The court rejected the argument that alter ego liability, as a matter of law, cannot apply to public entities.  The city formed the authority to pursue remediation of the side, and one of the goals was to protect the city from any liability that would arise to the landowner.  Under the alter ego theory, if government entities are operated with integrated resources in pursuit of a single business purpose, and one of them so dominated the finances, policies, and practices of the other that the latter had no separate existence of its own, but was merely a conduit through which the former conducted its business, then alter ego liability may exist if an inequitable result would otherwise follow.  The complaint alleged facts that, if proved, would allow a court to conclude that the elements of alter ego liability were met here.  The demurrer to the bad faith cause of action was error not only because it was based on the trial court's rejection of the alter ego theory, but because it did not consider the allegations that the development agreement, to which the city was a party, was breached.

Police Properly Demanded Drivers Licenses at Checkpoint and Properly arrested Driver Who Refused to Show One

In Demarest v. City of Vallejo, published August 16, 2022, the 9th Circuit affirmed summary judgment for the defendant city and defendant police officer in a 42 U.S.C. section 1983 case.  The plaintiff was suffering from a staph infection on his back.  He encountered a DUI and driver's license checkpoint.  Under the checkpoint plan, all vehicles were stopped unless backup exceeded five minutes.  Officers were to screen drivers for DUI, verify they had a license, and provide an educational handout.  Although drivers' licenses  were to be checked, the checkpoint's purpose was to remove intoxicated drivers from the road and deter intoxicated driving, not to remove unlicensed drivers.  The plaintiff refused to show his driver's license at the checkpoint.  The defendant officer opened the door of his car, grabbed his left wrist, removed him from the vehicle, handcuffed him, and told him he was under arrest.  The arrest process, which took one to two seconds, exacerbated the plaintiff's back pain.  When he was booked, a utility knife was discovered hanging around the plaintiff's neck.  He was charged with resisting arrest and carrying a concealed dirk or dagger.  He participated in a diversion program and the charges were dismissed.  He then sued the officer for violating his 4th Amendment rights by demanding to see his license and refusing to let him proceed; detaining him without reasonable suspicion; arresting him without probable cause; and using excessive force.  He sued the city for municipal liability for an alleged official policy of conducting driver's license checks at DUI checkpoints; and for failure to train.  The district court ruled that neither the officer nor the city violated the 4th Amendment.

The court of appeals agreed.  A municipality may set up a checkpoint to stop cars without reasonable suspicion of committing a crime, if it passes a two-part test.  First, the court must determine whether the checkpoint is per se invalid because its primary purpose is to advance the general interest in crime control.  If not, the court determines the checkpoint's reasonableness (and therefore constitutionality) based on the individual circumstances.  Here, the checkpoint satisfied the first step.  The primary purpose of the checkpoint was the proper one of reducing the danger of drunk driving.  Although removing unlicensed drivers from the road was not a purpose of the checkpoint, that did not detract from the checkpoint's proper purpose.  Further, if removing unlicensed drivers from the road was a purpose, that highway safety purpose would have been proper.  On the second step, stopping the plaintiff's car based on the sobriety checkpoint was proper under the 4th Amendment.   The court rejected the argument that the purpose of having a sobriety checkpoint rendered checking licenses improper.  The subjective intent behind the stop is not relevant to the second step.  The systematic addition of driver's licenses checks to the DUI checkpoint was objectively reasonable.  The check only minimally interfered with liberty of the sort the 4th Amendment seeks to protect.  It was not an investigation of a crime; the contribution to the length of the stop was minimal; and the programmatic guidelines of the stop minimized discretion of officers at the scene.  The plaintiff's detention and arrest did not violate the 4th Amendment, because the officer had probable cause the plaintiff violated Vehicle Code section 12951 by refusing to show his license.  Finally, the excessive force claim fails, because the use of force incidental to the arrest was reasonable, and the plaintiff failed to show evidence the officer using the force was aware of the plaintiff's back injury when the force was used.

College Professor Did Not Violate Clearly-Established Establishment Clause or Free Exercise Rights by Teaching Course Allegedly Critical of a Religion

In Sabra v. Maricopa County Community College District, published August 10, 2022, a divided panel of the 9th Circuit Court of Appeals affirmed dismissal of a 42 U.S.C. section 1983 lawsuit.  The defendant professor at the defendant community college district taught a course on world politics.  One module of that course was on Islamic terrorism.  The plaintiff student took the course. The student alleged that the course included material that denigrated Islam and was misleading.  The plaintiff was a Muslim.  The course included a multiple-choice quiz that allegedly required the student to choose answers that attacked the student's faith or else be graded downward.  An organization that advocates on behalf of American Muslims joined the student as a plaintiff.  The plaintiffs alleged that the Islamic Terrorism module violated the Establishment Clause of the 1st Amendment because its primary message is the disapproval of Islam, allegedly presenting a biased and one-sided portrayal of Islam as though it were presenting fact.  The lawsuit also alleged that the quiz violated the student's rights under the Free Exercise Clause of the 1st Amendment by allegedly requiring the student to disavow his religion by selecting the correct answer choice or be penalized by answering in accordance with his beliefs.  The lawsuit named the professor in his personal and official capacities and named the district under a theory of municipal liability.  The district court concluded that the organizational plaintiff lacked standing under a theory of organizational injury.  The court further determined that the complaint did not state violations of the student's 1st Amendment rights, and that the professor was entitled to qualified immunity.

The appellate court ruled that the organizational client had established standing, by alleging that the district's and professors' acts required it to divert its resources to create a campaign correcting the allegedly Islamophobic information in the course materials.  The panel majority concluded that the plaintiffs had abandoned their municipal liability claim on appeal, because the district raised the municipal liability argument in its answering brief and the plaintiffs failed to respond to it in their appellate reply brief.  Further, on the merits, the majority rejected the argument that because the professor taught the course for 24 years, the district had a longstanding practice and custom of teaching that disapproved Islam.  The complaint failed to allege facts that the challenged material was taught for a long period.  The allegation that the professor was a policymaker for the district because he was the chair of a department failed; under law, the district's board was the policymaking  body.  The complaint failed to plausibly allege a ratification theory of liability, because it did not plausibly allege that a policymaker had actual or constructive knowledge of the offending material and sanctioned its use in the classroom.  Because the plaintiffs abandoned the municipal liability claim on appeal, they were not entitled to a remand to allow them to amend their complaint.  Addressing the claims against the professor, the panel majority agreed with the district court that the professor was entitled to qualified immunity.  No case law established beyond debate that teaching material that allegedly denigrated a religion, or administering a quiz that required a student to make choices contrary to the student's beliefs, violated the Establishment or Free Exercise clauses.  Given that there were powerful arguments on both sides, the violations were not so "obvious" as to be clearly established without precedent.  The panel did not address the merits of the alleged violations.

A judge dissented, opining that the alleged conduct in giving the quiz violated the student's clearly-established Free Exercise rights.  The judge also disagreed with the appellate abandonment holding.  Another judge concurred with the majority, writing separately to respond to the dissenting judge's opinion regarding qualified immunity.  The concurring judge also opined that while 9th Circuit precedent compelled the decision on organizational standing, the 9th Circuit precedent was incorrect.

Social Media Posts of Police Officer Protected by First Amendment Despite Objectionable Content

In Hernandez v. City of Phoenix, published August 5, 2022, the 9th Circuit Court of Appeals affirmed in part and reversed in part dismissal of a police officer's suit against the defendant city under 42 U.S.C. section 1983.  The city's police department adopted a social media policy for employees that prohibited employees from engaging in speech that would be detrimental to the mission and functions of the department, undermine respect or public confidence in the department, or impair working relationships in the department.  While off-duty, the plaintiff officer posted to his personal Facebook profile of news articles and memes, accessible to the public, with content that was negative to Muslims and Islam.  Over five years later, a project that maintains a database of Facebook posts from law enforcement officers across the country, published the plaintiff's posts.  This generated public criticism of the department and negative media attention.  The department investigated the posts.  The officer asserted that he posted the items to drive discussion about issues in the news at the time.  The investigation concluded that the officer had violated the department's social media policy.  Before the department decided what discipline to impose, the officer and others filed the lawsuit.  The plaintiffs contend that the department violated the 1st Amendment by retaliating against the officer for exercising his right to freedom of speech. and that portions of the social media policy are facially invalid under the 1st Amendment as vague and overbroad.  They sought damages and injunctive relief.  The district court granted an FRCP 12(b)(6) motion to dismiss the retaliation and facial overbreadth challenge.  It then granted summary judgment on the facial vagueness claim.

The 9th Circuit reversed the dismissal of the retaliation claim.  The Pickering test for whether a public employee spoke on a matter of public concern as a private citizen, rather than as an employee, applies.  The district court determined that the officer had not spoken on a matter of public concern.  That is an issue of law subject to de novo review.  The court analyzes the content, form, and context in which the statements are made.  The content here did not address internal work matters; they addressed matters of social and political concern of interest to others outside the department.  Regarding form and context, the plaintiff posted the items on his own time, outside the workplace, using his personal Facebook profile.  The intended audience was not limited to fellow employees, and the posts were open to the public.  While the posts expressed hostility toward, and sought to denigrate or mock, a major faith and its adherents, the inappropriate or controversial character of a statement is irrelevant to whether it deals with a matter of public concern.  The court remanded the claim to the district court for further development of the record.  The court emphasized that the department may not face an onerous burden to justify disciplining the officer for the posts, given the comparatively low value of his speech and the deference given to a police department's determination that an officer's speech warrants deference.  The department may permissibly consider the special status officers occupy in the community  when deciding what limitations to place on officers’ off-duty speech.  Speech by a police officer that suggests bias against racial or religious minorities can hinder that officer’s ability to effectively perform his or her job duties and undermine the department’s ability to
effectively carry out its mission. 

Regarding the facial challenge to the social media policy, the appellate court largely agreed with the district court.  Most of the challenged restrictions directly promote valid bases for imposing restrictions on public employee speech: prohibiting speech that undermines the employer's mission or hampers effective functioning of operations.  The challenge to the provisions prohibiting speech that would cause embarrassment to or discredit the department, however, cannot be rejected at the pleading stage.  The department does not have a legitimate interest in prohibiting speech merely on those grounds.  The same applies to the challenge to the portion of the policy that department personnel may not divulge information gained in the performance of their official duties.

 

The Unruh Act Does Not Apply to School Districts or Other Public Entities

In Brennon B. v. Superior Court (West Contra Costa Unified School Dist.), published August 4, 2022, the California Supreme Court affirmed a demurrer sustained to a cause of action against a school district for violation of the Unruh Civil Rights Act.  The plaintiff, a disabled student, alleged that the school district violated the Unruh Act by failing to protect him against sexual assault.  The trial court sustained the demurrer on the ground that the district was not a "business establishment" within the meaning of the act.  The plaintiff petitioned the lower court of appeal for writ relief.  The appellate court agreed with the trial court.

The California Supreme Court agreed as well. The Unruh Civil Rights Act, Civil Code section 51, subdivision (b) bars discrimination "in all business establishments of every kind whatsoever." The court examined the language of the Unruh Act, its legislative history, and the history of cases interpreting it, and concluded that the phrase "all business establishments of every kind whatsoever" is limited to entities acting as private business establishments.  In particular, earlier versions of the bill that became the Unruh Act stated that it applied to schools, but reflect a progressive narrowing of the legislation's applicability to "schools' before completely eliminating the reference to schools, while leaving the language concerning "business establishments" untouched.  The district was therefore not a "business establishment" when it provided educational services for the plaintiff.  The court also rejected an alternative argument that subdivision (f) of Civil Code section 51, which makes a violation of the federal Americans with Disabilities Act of 1990 actionable under the Unruh Act, expanded the Unruh Act's application to school districts.  Analyzing the language and legislative history, the court concluded that subdivision (f) means that any violation of the ADA by a business establishment is also a violation of the Unruh Act.  The court further rejected an argument that the language of Education Code section 201, subdivision (g), as amended in 1998, stating a legislative intent that the chapter of the Education Code be interpreted as consistent with the Unruh Civil Rights Act, incorporated the Unruh Act's remedies into the Education Code.  Treating the amendment as bringing public school districts within the ambit of the Unruh Act would have exceeded the stated intention behind the 1998 amendment and been in tension with the Legislature's professed goal of mitigating litigation costs for schools.