Government Liability Update

Immunity for Injury Caused by Prisoner Applies to FEHA Cause of Action

In Bitner v. Department of Corrections and Rehabilitation, ordered published January 26, 2023, the Fourth District Court of Appeal, Division 2 affirmed summary judgment in favor of the defendant department.  The plaintiffs were employed by the department as vocational nurses.  They alleged that while they were assigned to one-on-one suicide monitoring, they were subjected to acts of sexual harassment by inmates, and that the department failed to remedy the situation, in violation of the Fair Employment and Housing Act.  The trial court granted the department summary judgment under Government Code section 844.6, which immunizes public entities for injuries proximately caused by any prisoner.

The appellate court agreed that section 844.6 immunized the department.  It rejected the plaintiffs' arguments that section 844.6 did not apply to liability under FEHA.  Section 844.6 sets forth a list of statutory exceptions to the immunity, and FEHA is not included in that list.  When faced with conflicting statutes providing for governmental immunity and liability, the statute providing immunity will prevail in the absence of any clear indication of a contrary legislative intent.  The court further rejected the argument that FEHA is an exemption to section 844.6 because FEHA creates a "direct" duty.  Since all public entity liability is statutory, interpreting section 844.6 not to apply to any statute creating a "direct" duty would interpret the immunity out of existence.  Plaintiffs argued that the immunity did not apply because their injury was caused not only by the prisoner's acts, but also the department's acts in breaching its duty.  The court rejected this argument as well, both because the plaintiffs forfeited it by not arguing it in the trial court or properly setting it forth in their opening brief, but also on the merits.  Where the undisputed material facts show that the alleged injury was proximately caused by a prisoner, it is not enough for a plaintiff to simply present evidence that additional, concurrent causes may have also contributed to the same injury.  

While Autopsy Photos and Crime Scene Photos Are Exempt from CPRA, other Coroner Documents Requested by Family Are Not

 

In Edais v. Superior Court (Foucrault), published January 17, 2023, the First District Court of Appeal, Division 3 reversed a decision by a trial court on a writ petition brought under the California Public Records Act.  A police officer died in his home, of hanging.  The coroner’s office published a report classifying the death a suicide.  The decedent’s parents, suspecting foul play, hired a forensic pathologist to undertake a forensic autopsy review.  The review requires examination of scene photos, autopsy photos, coroner reports, notes and recordings taken by the coroner’s investigator and the pathologist who examined the body, and recuts of microscopic slides of any tissues retained.  The parents served a CPRA request on the county coroner.  They requested all documents received or generated by or currently in the possession in connection with the decedent’s death.  For physical evidence that could not be reproduced, they requested an in-person inspection.  The coroner’s office produced various reports, but declined to provide photos of the scene or autopsy, and declined to provide the full summary and investigation notes report prepared by the coroner’s investigator, on the ground that the decedent’s widow had not consented to the disclosure.  The petitioners sought a writ of mandate to compel production, as well as declaratory and injunctive relief.  The trial court denied relief under the CPRA petition.  On its own motion, the trial court required the respondents to produce to the parents the requested photos and investigation report.  It relied on Code of Civil Procedure section 129(a), which authorizes a court (on good cause and after notice to the District Attorney) to order the release of a coroner’s photos of the deceased.  The court ordered the parties to negotiate a protective order to prevent the documents’ further release.  The parents petitioned the appellate court for an extraordinary writ, directing the trial court to release all of the public records it generated or received in connection with the death investigation.

The appellate court ruled that the trial court had erred in denying the CPRA request in its entirety.  Coroner and autopsy reports are public records.  The CPRA exception for investigatory files compiled for law enforcement purposes is not at issue in this case.  All of the requested records, including the photos, are public records for purposes of the CPRA.  Certain postmortem and autopsy photos are exempted from disclosure under Government Code section 7927.704, which exempts documents exempted or prohibited  pursuant to federal or state law.  Among the statutes listed in the CPRA that may exempt or prohibit production is Code of Civil Procedure section 129, postmortem or autopsy photos.  These provisions together exempt from disclosure under the CPRA postmortem or autopsy photos whose disclosure section 129(a) prohibits.  The court declined to resolve whether the requested photos fall with the scope of section 129(a)’s prohibition on disclosure, since the trial court ordered the photos produced under a protective order, respondents do not challenge the ruling and have already turned over the photos.  While records released to one requestor under the CPRA generally must be made available to other members of the public, records released pursuant to section 129(a) are likely not subject to the same requirement.  As to the investigation report, the court addressed whether the exemption for medical files and the “catch-all” provision exempted it.  When applying the medical files exemption, the court balances the public interest in disclosure against the individual’s interest in privacy.  The public interest in releasing the coroner’s office documents is significant.  It would assist members of the public in assessing whether the coroner’s office investigated the death thoroughly and competently.  The public interest in correctly distinguishing suicide from homicide is patent.  As for privacy, the decedent has no more privacy interest.  The family has a privacy interest, but the parents are the ones requesting the records, and the widow has not objected.  Another important fact is that the documents to be produced are not photos and videos of the deceased, but technical documents such as coroner’s notes and observations.  The state law recognizing the extreme sensitivity of death-scene and autopsy photos does not protect the other coroner documents (except the decedent’s medical information).  Further, it is common practice for coroners and medical examiners to perform a secondary review of medical evidence.  The public interest in disclosure therefore outweighs any individual privacy interest.  The “catch-all” exemption requires weighing the public interest in disclosure against the public interest against disclosure.  The respondents did not establish any public interest in withholding the documents that is any more substantial than the private interests the court found insufficient.

Public University Professor's Post-Publication Correspondence, Using University E-mail, on Articles Subject to Production under California Public Records Act

In Iloh v. Regents of the University of California (The Center for Scientific Integrity, Inc.), published January 13, 2023, the Fourth District Court of Appeal, Division 3 affirmed a trial court's decision denying a preliminary injunction to bar production of documents under the California Public Records Act.  While the plaintiff was a professor at University of California, Irvine, she published research articles in academic journals.  She used her UCI e-mail address to communicate with the journals about her article submissions.  She submitted the articles on her own behalf, not on behalf of UCI.  UCI had no ownership interest in the articles, and they did not contain UCI's imprimatur.  After four such articles were published, the articles were retracted or corrected by the journals.  In communicating with the retractions, the plaintiff used her UCI e-mail address.  It appears the retractions occurred due to concerns about possible plagerism or inaccurate citation references in Iloh's articles.  Retraction Watch, published by the Center for Scientific Integrity, investigated the retractions.  Retraction Watch sent a CPRA request to UCI seeking correspondence between UCI and the plaintiff regarding articles published in the journals, and correspondence between UCI or the plaintiff and the journals regarding the plaintiff's articles.  UCI notified the plaintiff of the request and its intent to disclose the responsive records.  The plaintiff petitioned for a writ of mandate, declaratory relief, and injunctive relief to prevent disclosure.  The Regents of the University of California, which operates UCI, filed a notice of nonopposition to the plaintiff's motion for a preliminary injunction.  The requestor opposed the motion.  The trial court denied the motion, finding the plaintiff had not established a likelihood of prevailing on the merits because she had not shown the records were not "public records" under the CPRA, nor that the records were otherwise exempt from disclosure.  The plaintiff appealed denial of the preliminary injunction.

The appellate court ruled that the trial court had not abused its discretion in denying the injunction.  The California Constitution requires that the CPRA's definition of "public records" subject to the CPRA be broadly construed, and that the exemptions from the CPRA be narrowly construed.  The trial court acted within its discretion in deeming the requested correspondence to be public records.  The requested correspondence was sent and received using UCI e-mail addresses and is therefore "owned, used, or retained" by UCI, a state agency.  The articles at issue discuss topics directly relevant to the plaintiff's field of study at UCI, and were published in journals devoted to the same field of study.  The requested communications appear to concern whether the plaintiff committed plagiarism or otherwise violated university policies on academic integrity--an issue tied to the use of public funds.  The communications therefore involve the "public's business."  The trial court also did not abuse its discretion in concluding that the communications were not exempt from disclosure.  The plaintiff invoked the CPRA's "catch-all" exemption, which weighs whether the public interest served by not disclosing the record clearly outweighs the public interest served by disclosure.  To prove the documents exempt, the plaintiff must establish a clear overbalance on the side of nondisclosure.  Several public interests support disclosure:  expenditure of public funds to pay the  plaintiff and to investigate alleged academic dishonesty; academic research is central to UCI's public function; and the public has an interest in understanding how UCI addresses allegations of academic dishonesty.  That is balanced against a legitimate public interest in protecting academic freedom.  Case law establishes disclosure of prepublication communications about university research may impair the research process and have a chilling effect on academics.  But those concerns do not apply to postpublication communications.  The plaintiff did not meet her burden of establishing a clear overbalance on the side of nondisclosure.  The trial court also acted within its discretion in concluding the communications were not exempt as personnel records.  Even if copies of the communications were placed in the plaintiff's personnel file, the public interest in disclosure of the communications outweighs any privacy concerns in the communications.

Councilperson Can Compel Speech of Appointed Volunteer, and Remove Volunteer from Position for Her Speech, if Volunteer is "Public Face" of Councilperson

In Lathus v. City of Huntington Beach, published January 5, 2023, the 9th Circuit Court of Appeals affirmed dismissal of a 42 U.S.C. section 1983 action.  A city councilperson appointed the plaintiff to the city's Citizen Participation Advisory Board.  Under the municipal code, each councilperson appoints one member to the board, and may remove the member without cause.  The board's mandate is to provide citizen participation and coordination in the city's planning processes.  After her appointment, plaintiff was photographed at an immigrants' rights rally standing near individuals whom the councilmember who appointed plaintiff believed to be "Antifa."  She directed the plaintiff to write a public statement on social media denouncing Antifa.  The plaintiff did so.  She believed continuing her position depended on doing so.  The councilmember deemed the statement insufficient.  She removed the plaintiff from the board.  The councilmember stated that “[t]hose that do not immediately denounce hateful, violent groups do not share my values and will not be a part of my team.”  The plaintiff sued the city, claiming retaliation for exercising her First Amendment rights to free speech, association, and assembly.  She further alleged that the demand for a public statement amounted to unconstitutionally compelled speech.  The district court dismissed the complaint, holding that the councilmember acted within her rights.

The 9th Circuit agreed.   The critical issue is whether the plaintiff was effectively "a political extension" of the councilmember on the board.  While the plaintiff's attendance at the rally was First Amendment protected activity, the First Amendment did not insulate her from dismissal that was the outcome of the regular functioning of the political process.  The plaintiff was an appointed volunteer in public service.  That by itself did not remove her First Amendment protection.  The question was whether commonality of political purpose with the appointing official was an appropriate requirement for the plaintiff's service on the board. Because each member of the board, appointed by a separate councilmember who can also remove that person without cause, each member speaks to the public and other policymakers on behalf of the official who appointed them.  The board is a conduit between the community and the city council on the vital political issue of providing housing to low and middle income city residents.  Each board member is thus an advisor who formulates plans for the implementation of broad goals.  A councilperson is therefore entitled to an appointee who represents her political views and priorities.  She cannot claim retaliation because she was dismissed for not sharing her appointing councilmember's values.  Further, an elected official can compel the public speech of her representative, because that speech will be perceived as the elected official's own.  The plaintiff's compelled speech claim thus fails as well.

Issues of Fact on Whether Resisting Suspect Posed Imminent Threat of Serious Harm and Whether Officers Had Time to Issue Deadly Force Warning Prevent Summary Judgment Based on Qualified Immunity

 

In Smith v. Agdeppa, published December 30, 2022, a divided panel of the 9th Circuit Court of Appeals affirmed denial of a summary judgment motion based on qualified immunity.  Two police officers responded to a gym’s report of trespassing and disruptive conduct.  When they arrived, staff reported that a man in the locker room was irate, was not listening, had hurt a few gym members, and had assaulted security.  The police entered the shower area of the locker room, where the man was naked, and spent several minutes ordering the man to get dressed, to turn off his music, and to leave the gym.  The man ignored the officers except to raise his middle finger.  The officers attempted to handcuff the man.  For a minute and 20 seconds, the man used his size to thwart the smaller officers’ attempts to handcuff him.  As he resisted, both officers’ body cams were knocked off their uniforms.  The next three minutes were not visible on video, but the cams continued to record audio.The defendant officer alleges that after the cams fell down, the struggle escalated and turned violent.  One officer used her taser in dart mode on the man, and both officers used their tasers in stun mode.  The defendant officer testified that the man repeatedly struck him in the face and knocked him backward into a wall, disorienting him and causing him to drop his taser.  According to the officer, the man straddled his partner and pummeled her head and face with punches.  He believed her life was in danger.  He drew his weapon and gave the man a verbal warning that he needed to stop.  He testified that the man continued to pummel the officer, so the defendant officer fired five shots from six to eight feet away.  The man began falling backwards and away when he fired the final shot.  The district court found that evidence contradicted the defendant officer’s version of events.  The warning to stop cannot be heard in the bodycam audio.  Security guards’ accounts, recounted in an internal investigation of the shooting, differed from the officers’ accounts in several respects.  A guard said that the man was holding the defendant officer’s arm when the shots were fired, contradicting the officer’s statement that he was standing away from the man.  The guards disagreed with the officers on the number of shots fired, the whether the man reached for the defendant officer’s firearm, and whether the man was holding the officer’s wrist until after the second shot was fired.  The internal investigation concluded the defendant officer’s use of lethal force was unreasonable, because there was no exigency preventing the officers from withdrawing and redeploying with greater resources.  Further, the evidence indicated the officers’ injuries were only minor, according to the panel majority.  An autopsy report also put into question the officer’s statement that he shot the man from six to eight feet away.  The district court concluded that a jury could find a reasonable officer in the defendant’s position would have understood his use of deadly force violated the man’s Fourth Amendment ri

 

The panel majority upheld the district court’s finding. In an interlocutory appeal from denial of qualified immunity at the summary judgment stage, the court determines whether the facts, viewed in the light most favorable to the plaintiff, show that the officer’s conduct violated a constitutional right; and whether the right in question was clearly established at the time of the officer’s action.  If either question is answered in the negative, the officer is entitled to qualified immunity.  Deadly force is reasonable only if the officer has probable cause to believe the suspect poses an immediate and significant threat of death or serious physical injury to the officer or others.  Further, an officer must give warning before using deadly force whenever practicable.  When the suspect is shot dead, and other evidence in the record (such as medical reports, contemporaneous statements by the officer, available physical evidence, and any expert testimony proffered by the plaintiff) is inconsistent with material evidence offered by the defendant, the majority held, qualified immunity should not be granted.  A jury should consider the contradictory evidence and decide whether they were persuaded by the officers’ testimony.  Here, depending on what happened in the locker room, a jury could find that the officer had an opportunity to give the suspect a “deadly force warning” before escalating to deadly force.  The officer provided several warnings before using intermediate force, but at no point did he warn the suspect he was escalating to the use of his firearm.  The officer’s version of events was materially contradicted by the record, including whether the officer was engaged in hand-to-hand combat with the suspect or stood six to  eight feet away.  While the suspect posed some danger to the officers’ safety by actively resisting arrest, a jury could reasonably reject the officer’s description of a deadly fight and find that a reasonable officer in the defendant’s position would not have believed the fellow officer or anyone else was in imminent danger.  Further, the officer never claimed it was not practicable to give a deadline force warning.  On the contrary, the officer gave a declaration that he gave a verbal warning, stating words to the effect that the suspect needed to stop.  Because the officers had tased the suspect a few times, a warning to stop would do nothing to warn the suspect that the officer was preparing to ramp up to use deadline force.  While the officer would likely prevail if a jury believed his version, the court cannot overlook the internal investigation’s contrary finding that no exigency required use of deadly force.

 

A dissenting judge opined that the undisputed facts, including the audio from the body cams and two independent witnesses’ verification of the officer’s account, indicated that the officers faced an imminent threat, and that the law did not require them to issue another warning before using deadly force.