Government Liability Update

In Federal Court, a Summary Judgment Motion Preserves Purely Legal Issues for Appeal; They Need Not Be Raised in a Post-Trial Motion

In Dupree v. Younger, published May 25, 2023, the United States Supreme Court reversed a circuit court decision dismissing an appeal.  The plaintiff alleged that while he was being held as a pretrial detainee, three corrections officers assaulted him.  He sued them in federal court under 42 U.S.C. section 1983 for allegedly using excessive force in violation of the Fourteenth Amendment.  One of the officers moved for summary judgment based on his contention that the plaintiff had failed to exhaust administrative remedies, as required by the Prison Litigation Reform Act.  The district court denied the motion, based on its conclusion that the plaintiff had satisfied the exhaustion obligation under the law.  The case proceeded to trial.  The jury found for the plaintiff.  The officer did not file a FRCRP 50(b) post-trial motion.  He appealed a single issue to the Fourth Circuit Court of Appeals:  the district court's rejection of his exhaustion defense at summary judgment.  The Fourth Circuit dismissed the appeal based on its precedent holding that a claim or defense rejected at summary judgment is not preserved for appellate review unless it was renewed in a post-trial motion.

The Supreme Court ruled that a purely legal challenge made and rejected in a summary judgment motion is preserved for appeal, regardless of whether it is renewed in a post-trial motion.  An appeal from final judgment generally permits review of all rulings that led up to the judgment.  Some interlocutory district-court rulings are unreviewable from final judgment, because they are superseded by later developments in the litigation.  For instance, a sufficiency-of-the-evidence made at the summary judgment stage and rejected is superseded by the complete trial record.  A party must therefore raise a sufficiency-of-the-evidence claim in a post-trial mtion to preserve it for appeal.  The Supreme Court declined to apply this rule to pure questions of law.  Trials leave pretrial legal rulings undisturbed.  Trials resolve the facts, not the law.  A district court's purely legal conclusions at summary judgment are not superseded by later developments in the litigation.  Instead, they follow the general rule and merge into the final judgment.  They are therefore reviewable on appeal.  The court did not decide whether the exhaustion issue raised in this case was a purely legal issue.

Under State-Created Danger Doctrine, Officers and Social Worker Who Left Mentally Ill Mother Alone with Infants Can Be Sued for the Infants' Death

In Murguia v. Langdon, published March 14, 2023, a divided panel of the 9th Circuit Court of Appeals reversed in part an order dismissing a suit under 42 U.S.C. section 1983.  The plaintiff called 911 seeking emergency mental health assistance for his ex-wife, with whom he lived and had five children, including infant twins.  The mother was displaying bizarre behavior.  In response to the call, the first group of officers separated the mother and her twins from the plaintiff, and allowed the mother and a friend of hers to take the twins to church.  They prevented the plaintiff from following.  An officer from another agency then drove the mother and twins from the church to a woman's shelter.  A county social worker then allegedly provided incorrect information about the mother to officers from a third agency, who transported the mother and twins to a motel, and left them unsupervised.  The mother then drowned the twins in a bathtub.  The plaintiff sued all of the involved officers and social worker for allegedly violating his 14th amendment rights to substantive due process.  The district court dismissed the action for failure to state a claim.

The 9th Circuit majority reversed the dismissal in part.  The only two exceptions to the general rule against failure-to-act claims under section 1983 are those for special relationships and state-created danger.  There was no special relationship here, because the twins were never under the defendants' custody.  A state-created danger claim could be asserted against those defendant who created or enhanced any danger to the twins.  The panel upheld dismissal as to the first group of officers, since the facts alleged did not show they created or enhanced any danger to the twins by leaving the mother and twins with the mother’s friend.  The panel changed the dismissal to one without prejudice, since the plaintiff might be able to amend the allegations.  The majority held that the plaintiff adequately stated a claim against the officer who arranged for the mother to stay at the hotel room, transported the mother and twins from the shelter to the hotel room, and left the mother in the room with the twins.  The plaintiff adequately pleaded both danger enhancement/creation and deliberate indifference to the risk that the mother would harm the twins.  The majority also concluded the plaintiff adequately pleaded a state-created danger claim against the social worker, for allegedly providing false information about the mother to police.  By providing that information, she enhanced the danger to the twins by foreclosing the return of the twins to their father.  Following precedent, the panel found the claim for infringement on the plaintiff’s liberty interest from removal of the twins from him, and giving them to the other parent with custody of the twins, failed; it was a relatively minor infringement of the right that was insufficient to form a section 1983 claim.  The plaintiff also failed to plead a cause of action for seizure of his person based on the officers preventing him from following the twins.  They did not prevent the plaintiff from leaving his house for any other purpose.  Having found potential individual liability, the majority reversed denial of the Monell claim against the municipalities involved.

One judge dissented from the portions of the decision reversing dismissal.  The judge opined that the state-created-danger doctrine should apply only where officials abuse their power by intentionally putting a person in harm’s way.  The judge contended that the majority’s decision extended the doctrine to injuries caused by negligence and mistake.

Municipality Did Not Violate Parent's Liberty Interests by Allegedly Maintaining Lawless Area That Resulted in Death of Adult Son

In Sinclair v. City of Seattle, published March 1, 2023, the 9th Circuit Court of Appeals affirmed dismissal of a suit under 42 U.S.C. section 1983.  During the George Floyd protests of 2020, the mayor and police department of the defendant city surrendered a police precinct and a large area of the surrounding neighborhood to protesters for a month.  The protesters declared it the Capitol Hill Occupied Protest, or CHOP, zone.  The mayor labeled CHOP a "block party" and a "summer of love."  A councilmember publicly described CHOP as a "peaceful" occupation.  Allegedly, violence, vandalism, open drug use, and other crimes proliferated in the area.  The city allegedly provided the protesters with portable toilets, lighting, and other support, including modifying emergency response protocols of the police and fire department.  The plaintiff's 19-year-old son, who had special needs, visited CHOP and encountered a man with whom he had a history of antagonism.  The man allegedly believed CHOP to be a "no-cop" zone.  He was carrying a gun.  He shot the plaintiff's son.  CHOP participants carried the wounded son to a medical tent they had erected.  The fire department had an ambulance stationed a block and a half from that location.  A man implored the paramedics to help the son.  The paramedics were apparently waiting for a green light from police.  The police were allegedly confused about the paramedics' location.  The miscommunication caused a response delay of around 20 minutes before first responders arrived to treat the son.  By the time they responded, CHOP participants had transported the son to a hospital, where he passed away.  The plaintiff alleged the city violated her 14th Amendment due process rights to the companionship of her adult son.  She alleged that the city's acts and omissions regarding CHOP created a foreseeable danger for her son and that the city was deliberately indifferent to the danger.  The district court dismissed the action for failure to state a claim.

The appellate court agreed that the plaintiff had failed to state a claim.  The court initially expressed doubt on whether a parent had a liberty interest in the companionship of an adult child.  But because 9th Circuit cases had recognized the existence of such an interest, without analyzing the question, the panel believed itself bound by the precedent.  The court therefore addressed the merits of the allegations. The plaintiff alleged the city violated her rights by violating the son's right to be free of state-created danger.  The court ruled that the complaint's allegations supported the strong inference that the city acted with deliberate indifference toward the dangers of permitting and encouraging establishment of the CHOP zone.  But the city's alleged response after the son's shooting do not show deliberate indifference.  The paramedics attempted to provide care.  The city did not prevent them from doing so.  Instead, the delay in care resulted from a miscommunication.  Further, while the allegations support a conclusion that the city created an actual danger, they do not support the danger particularized to the plaintiff that the state-created-danger claim requires.  Any danger the city created affected all CHOP visitors equally.  The danger was not specifically directed at the plaintiff or her son.  The section 1983 claim therefore fails.

One judge wrote a separate concurrence urging that the issue of whether a parent has a liberty interest in the companionship of an adult child be reviewed en banc.

School District Did Not Violate Students' Free Speech Rights under First Amendment or California Law by Disciplining Them for Off-Campus Social Media Posts Targeting Fellow Students

In Chen v. Albany Unified School District, published December 27, 2022, the 9th Circuit Court of Appeals affirmed summary judgment in favor of the defendant school district and associated defendants.  A high school student created a private Instagram account to share memes, images, and comments with his close friends.  He allowed 13 people to follow his account.  He used the account to make cruelly insulting posts about various students in his school, including racist posts, including posts joking about lynching and slavery.  Another student made racist comments in the group, and “liked” offensive posts.  When one of the account’s followers showed posts in the group to students who had been depicted in a post with nooses, knowledge of the group’s contents spread throughout the school, causing great emotional upset and disruption.  Two of the account’s followers were physically assaulted.  The district voted to expel the group creator and the follower who posted racist comments.  Those students filed suits against the school district defendants under 42 U.S.C. section 1983, alleging violation of free speech rights under the First Amendment and California law, as well as violation of procedural due process.  The district court related those cases.  It granted summary judgment for the defendants, reasoning that the district defendants could properly regulate the students’ off-campus speech.

The court of appeals agreed.  The First Amendment’s protection of public school children’s speech is more limited than that of adult speech.  The speech of students in a school setting may be restricted if either it might reasonably lead school authorities to forecast substantial disruption of or material interference with school activities; or it collides with the rights of other students to be secure and to be let alone.  Even outside the school setting, the First Amendment rights of minors are not co-extensive with adults’.  That is especially true in connection with school activities.  Students do not have a First Amendment right to target specific classmates with vulgar or abusive language.  Without limiting any political viewpoint or other protected content, schools may insist on civil discourse in the school context.  Here, the First Amendment would not prevent a school from punishing the sort of speech at issue if it had occurred under the school’s supervision.  The content threatens the targeted students’ sense of physical, emotional, and psychological security.  The threat of disruption of school activities is equally obvious (and demonstrated here).  The central question is whether the off-campus nature of the speech places it outside of the school’s authority to regulate or discipline.  Although schools may regulate some off-campus student speech, their authority is diminished as opposed to on-campus speech.  The 9th Circuit has devised a three-factor test for determining whether off-campus speech bears a sufficient nexus to the school to allow school district regulation:  (1) the degree and likelihood of harm to the school caused or augured by the speech; (2) whether it was reasonably foreseeable the speech would reach and impact the school; and (3) the relation between the content and context of the speech and the school.  Under these standards, the group’s creator’s speech bore a sufficient nexus to the school to warrant disciplinary action by the school.  The student’s subjective intention to keep the account private is not controlling; the court must consider whether it was reasonably foreseeable that the speech would reach and impact the school.  Given the ease with which electronic communications may be copied or shown to others, it was foreseeable that the posts would ultimately reach the targeted students.  Once the privacy of the account was breached, the degree and likelihood of harm to the school from the speech was significant.  Because the speech caused serious or severe bullying or harassment targeting specific individuals, the school’s regulatory interests remained significant, and strongly implicated the school’s authority and responsibility to act in loco parentis in protecting students from maltreatment by classmates.  A failure to respond to the harassment might have exposed it to potential liability for failure to respond adequately to a racially hostile environment.  Because the student never contended that he was espousing a particular political ideology,  his claim that the school was somehow censoring the promotion of a disfavored ideological message rings hollow.  Although the other student’s involvement in the account was substantially more limited, his contribution properly subjected him to school discipline as well.  The court rejected the students’ arguments that the school violated their rights under the California Constitution and Education Code sections 48950 and 48907.  California’s free speech rights for students under those provisions do no extend further than their First Amendment rights.  The creator student’s claim of violation of procedural due process fails, because the student pursued an administrative writ under California law on that point and lost.  Claim preclusive bars him from relitigating that issue in the federal lawsuit.  His argument that a member of the administrative body was biased against him is governed by the same procedural due process standards under federal law as under state law.

Social Workers Were Not Entitled to Qualified Immunity for Acting with Malice, Oppression, or in Reckless Disregard of Parent's Rights

In Casey N. v. County of Orange, published December 23, 2022, the Fourth District Court of Appeal, Division 3, affirmed a jury verdict against the defendant county and two social workers in a 42 U.S.C. section 1983 suit brought by a parent.  Social workers investigated allegations that the plaintiff's minor daughter was sexually abused by her father, who was divorced from the mother.  One social worker stated in her report her opinion that the mother was emotionally abusing the daughter, and was feeding information or coaching information to the child as part of a family law dispute.  The second social worker, who replaced the first, filed a report stating she was unsure whether sexual abuse had taken place, but also recommended the petition allege emotional abuse by the mother.  The deputy county counsel dismissed the sexual abuse allegations before the dependency court, and replaced them with allegations of emotional damage or endangerment based on allegations the mother had influenced the child to make false sexual abuse claims.  The dependency court found the mother had knowingly caused the minor to make false allegations against the father.  The court granted the agency's request that the minor be removed from the mother and given to the father.  The mother signed a stipulation giving sole legal and physical custody of the minor to the father with visitation by the mother.  She later asserted she had been bullied into signing the stipulation under threat of having her parental rights terminated.  The mother sued the social workers and the county for violating her right to familial association by deceiving the juvenile court into removing the minor from her custody.  The jury found the social workers liable, found the county liable under a Monell theory, and awarded punitive damages against the social workers.

The appellate court ruled that the issue of the materiality of the social workers' statements--whether, but for the dishonest or misleading statements, the challenged action would not have occurred.  In a section 1983 case based on judicial deception, the court decides materiality in a summary judgment proceeding, but the jury determines it at trial.  The court further ruled that substantial evidence supported the verdict against the social workers.  There was medical and other evidence of sexual abuse that the mother's dependency court counsel did not present, because the sexual assault accusation was dismissed and the evidence would have been irrelevant.  The mother also testified she was prevented from offering the evidence at the disposition hearing because she was coerced into signing the stipulation.  The court ruled that the social workers were not entitled to qualified immunity.  The jury's finding that the social workers had acted with malice, oppression, or in reckless disregard of the mother's rights established that their conduct violated clearly established statutory or constitutional rights of which a reasonable person would have known.  Further, federal case law holds that the doctrine of qualified immunity merges with the merits in a case alleging judicial deception in the procurement of a search warrant.  The court declined to rule whether this holding applied here.  Substantial evidence also supported the Monell liability finding against the county, based on an official policy or custom of using false or misleading evidence, or in failing to disclose exculpatory evidence, in reports, documents, and testimony to the juvenile court, as well as a failure to properly train social workers.

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.

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. 

Divided En Banc Panel Upholds California's Limitation on Large-Capacity Magazines

In Duncan v. Bonta, published November 30, 2021, a divided en banc panel reversed a grant of summary judgment to plaintiffs challenging the State of California's amendment of Penal Code section 32310 to prohibit possession of large-capacity magazines, defined as those that can hold more than ten rounds of ammunition.  The ban exempts certain persons, such as law enforcement officers, security guards, and makers of props for film.  Owners of large-capacity magazines are required to remove the magazine from the state, sell it to a licensed arms dealer, or surrender the magazine to a law enforcement agency for destruction.  The plaintiffs challenged the statute as violating the Second Amendment, the Fifth Amendment's Takings Clause, and the Fourteenth Amendment's Due Process Clause.

Addressing the Second Amendment challenge, the en banc panel majority applied the two-step framework set forth in the U.S.U.S. Supreme Court's decision in District of Columbia v. Heller.  Under the framework, the court first determines whether the challenged law affects conduct that the Second Amendment protects; if so, the court determines the level of scrutiny to apply.  The court assumed (without deciding) that the Second Amendment's protection applied.  Joining other circuits, the court applied an intermediate level of scrutiny, because the ban imposed only a minimal burden on the Second Amendment right to keep and bear arms.  Under that scrutiny, the majority held that the statute was a reasonable fit for the important government interest of reducing gun violence.  The statute did not outlaw any weapons.  The majority further determined that the limitation interferes minimally with the core right of self-defense, due to lack of evidence anyone had been unable to defend home and family due to the lack of a large-capacity magazine.  The majority also determined that the limitation saved lives, since in the past half-century large-capacity magazines have been used in most shootings with 10 or more deaths and in 100 percent of shootings with 20 or more deaths.  More than twice as many people have been killed or injured in mass shootings involving large-capacity magazines compared with those involving smaller-capacity magazines.  The ban therefore reasonably supported California's efforts to reduce the damage caused by mass shootings.  The majority further ruled that the statute on its face does not effect a taking, because the government acquires nothing by limiting magazine capacity, and because owners may modify or sell their nonconforming magazines they are not deprived of all economic use of the magazines.  The due process claim essentially restated the takings claim, and failed for the same reason.

Three dissenting judges opined that the court should apply an analysis based on the text, tradition, and history of the Second Amendment, rather than the tiers-of-scrutiny approach.  Under that analysis, the dissenters opined, the long history of use of large-capacity magazines (including use at the time the nation was founded), the fact they number in the millions, and the lack of longstanding prohibitions against them establish they are entitled to Second Amendment protection.

Another dissenting judge opined that Ninth Circuit case law, including this case, showed a distrust of gun owners and did not accord proper protection to Second Amendment rights.

Officers Did Not Violate Clearly-Established Law by Accepting Arrestee's Representations about Her Health

In J.K.J. v. City of San Diego, published November 15, 2021, a divided panel of the 9th Circuit Court of Appeals dismissal of a complaint against defendant city and officers.  The defendant officers stopped a car with an expired registration.  The decedent was riding in the car as a passenger.  The officers questioned the decedent, who was coherent and showed no signs of distress.  The officers learned there was an outstanding arrest warrant for the decedent involving a prior methamphetamine offense.  They handcuffed her and put her in their vehicle.  The officers searched the stopped car and found a saran-like plastic commonly used for narcotics sales.  They found no drugs.  Inside the police cruiser, the decedent vomited.  One of the officers called for paramedics.  The officers asked decedent if she was detoxing or withdrawing.  The decedent replied, "No," and stated that she was sick, her stomach was turning, and that she was pregnant.  One of the officers called off the paramedics.  An officer asked if she ate something.  She shook her head and said, "Mmm-mm."  The officers began the hour-long drive to the police station.  En route, the decedent told the officers she did not want to go to jail; requested water and a bathroom break; and groaned and screamed on several occasions.  At one point, she screamed for help.  One of the officers asked her what was going on.  She remained silent for ten minutes.  The officers stopped the car to check on her.  An officer opened the door and told her she needed to stay awake.  When she screamed she needed help, the officers told her to knock it off and that she was fine.  On arrival (about three minutes after that incident), decedent was lying face down across the backseat.  She screamed and breathed rapidly.  One of the officers told her to stop hyperventilating.  The officers removed the decedent from the cruiser to the pavement, and fingerprinted her as she lay on her side.  The officers asked if she wanted water, and she requested water.  They returned her to the cruiser.  Eleven minutes later, decedent had fallen unconscious.  The officers immediately removed her from the car, called paramedics, and performed CPR.  Decedent fell into a coma and died.  The plaintiff, decedent's child, alleged decedent died from an overdose.  The plaintiff sued under 42 U.S.C. section 1983 for denial of medical care under the Fourth Amendment, denial of due process, and Monell liability for the city.  The district court granted the motion, ruling that the complaint failed to state a plausible claim for denial of medical care; that the officers were entitled to qualified immunity; and that the complaint failed to state a Monell claim against the city.

The panel majority agreed with this rulings.  It affirmed the district court's decision to consider a publicly-available video of the incident that was incorporated into the complaint by reference.  Where the complaint makes conclusory allegations contracted by a document incorporated by reference into the complaint, the court may decline to accept the conclusory allegations as true.  The district court properly limited its consideration of the video according to this rule.  The district court properly dismissed the Monell action.  Although the complaint alleged failure to train, it failed to allege facts showing a failure to train caused this incident.  Instead, the complaint alleged that the officers departed from their training.  For the defendant officers, the appellate court ruled that they were entitled to qualified immunity on both prongs.  On the first prong, the facts alleged in the complaint failed to show the objective reasonableness that would be necessary to state a claim for denial of medical care under either the Fourteenth Amendment (due process) or the Fourth Amendment (excessive force).  The officers' actions--including taking the arrestee's representations about her status at face value--were objectively reasonable under the circumstances.  Arguments that the officers should have concluded the decedent had ingested drugs, and that she was not pregnant, were merely exercises of 20-20 hindsight.  The test is whether the officers acted reasonably under the circumstances.  On the second prong, the plaintiff was unable to identify any precedent that clearly established under similar circumstances that the officers' actions violated the requirement to provide a detainee or arrestee with medical care.

A judge, dissenting in part, opined that the complaint stated a plausible case against at least one of the officers for failing to take action in light of an acute medical emergency.

Because State Law Did Not Clearly Establish Contractor Had Property Interest in Municipal Contract, City Attorney Entitled to Qualified Immunity to Due Process Claim for Recommending Ending Contract

In DePaul Industries v. Miller, published September 28, 2021, the 9th Circuit Court of Appeals reversed denial of qualified immunity to a defendant city attorney in a suit under 42 U.S.C. section 1982.  The plaintiff contracted with the city to provide unarmed security at city buildings.  The plaintiff was a qualified nonprofit agency for persons with disabilities, or QRF, under an Oregon law that requires cities to contract with QRFs in certain circumstances.  An employee of the plaintiff sued the city for alleged retaliation, and the plaintiff declined to defend and indemnify the city under an indemnification clause in the contracts.  When the contracst ended, the city elected to modify its security services by requiring that the security service employees be armed.  The plaintiff was the only QRF in the county providing unarmed security services.  The city decided not to renew the plaintiff's contracts, and awarded them to another security service.  The plaintiff sued the city and various city officials, including the city attorney, in their individual and official capacities.  One claim alleged the city attorney violated the plaintiff's substantive and procedural due process rights.  The city attorney moved for summary judgment based on qualified immunity.  The district court decided that the plaintiff had a clearly established property interest in its contracts with the city, and that a reasonable jury could conclude that the city used a pretext to cancel the contracts.

The 9th Circuit held that the district court erred, because the plaintiff's property interest in the contracts was not clearly established.  The Oregon QRF statute is not clear about whether it creates a protected property interest in annually renewable city contracts.  No Oregon court had considered the question.  Two cases cited by the district court were district court opinions that did not address QRFs at all.  The 9th Circuit noted its hesitancy to rely on district court decisions for the qualified immunity analysis.  Because the plaintiff did not have a clearly established property right to be protected by due process, the city attorney was entitled to qualified immunity.