Government Liability Update

Officers Who Allegedly Chased Suspect with Intent to Make Him Crash, then Failed to Assist Injured Bystanders, Not Entitled to Qualified Immunity at Pleading Stage

In Estate v. Soakai v. Abdelaziz, published May 16, 2025, a divided panel of the 9th Circuit Court of Appeals affirmed denial of the police officer defendants' motion to dismiss the action at the pleading stage based on qualified immunity.  According to the complaint's allegations, the defendant officers spotted a person they believed had participated in an illegal car rally.  Against department policy, the officers began pursuing the suspect, through busy city streets, at speeds exceeding 60 mph.  The defendants did not turn on their lights or siren, or report the chase to the dispatcher.  They were allegedly intent on making the suspect crash.  The suspect's car crashed into an area near a taco truck.  The plaintiff's decedent was struck and died of his injuries in front of his plaintiff mother, who suffered a broken back in the crash.  Other plaintiffs in the group suffered severe injuries.  The defendant officers allegedly did not stop, but drove past the scene of the accident, still with lights and siren off, and did not return until they heard other officers approaching the crash scene.  When they returned, the officers pretended not to have been at the scene previously.  The officers were allegedly overheard at the scene saying that they were satisfied that the suspect appeared injured, and hoped he died of his injuries.  The officers filed an interlocutory appeal from denial of their motion to dismiss.

The panel majority affirmed.  The plaintiffs' claim that the officers violated their constitutional rights by conducting the high-speed chase was a claim for violation of the substantive due process clause of the 14th Amendment.  To state a claim, they had to allege facts showing that the high-speed chase was for the purpose of harming a fleeing suspect and was unrelated to any legitimate law enforcement purpose.  The majority held that the facts alleged stated such a claim, and that the intent to injure did not have to be directed toward the injured bystanders for them to be able to state a claim.  The majority further held that existing precedent clearly established that bystanders were foreseeable victims of high-speed chases intended only to injure the suspect, and so the officers were not entitled to qualified immunity.  The alternative substantive due process claim was a state-created danger claim arising out of failing to summon or render emergency services after the crash.  Even if the officers had not intended to harm a person, the facts alleged showed that they placed the plaintiffs in a worse position than they would have occupied if the defendants had not acted at all; they created or exposed the plaintiffs to a particularized danger; and the danger resulted in a foreseeable harm to the plaintiffs.  Although the danger from the car chase itself was not particularized to the plaintiffs, the harm from the officers allegedly delaying medical treatment by driving past, doubling back only when other officers approached, and then pretending they were arriving for the first time was particularized to the plaintiffs.  They also showed deliberate indifference by their actions.  Although no controlling case applied the state-created danger to bystanders injured after a high-speed chase, existing precedent concerning state-created dangers and impeding medical care placed the constitutional violation beyond debate.

The dissenting judge opined that the majority had expanded the two theories of violation of substantive due process beyond existing precedent, and that the officers should therefore be entitled to qualified immunity.

Existence of Fundamental Rights Protected by Substantive Due Process Is Not Determined by Applying the Qualified Immunity Analysis

In Regino v. Staley, published April 4, 2025, the 9th Circuit Court of Appeals reversed dismissal of a 42 U.S.C. section 1983 suit at the pleading stage.  A school district had a policy that prohibited conduct such as refusing to address a student by a name and pronouns consistent with the student’s gender identity and revealing a student’s transgender status to those who do not have a legitimate need for the information without the student’s consent.  One of the plaintiff’s two children, who was 11 and biologically female told a school counselor that the child felt like a boy.  The child stated that the child would prefer male pronouns and that the child did not want the mother to know.  The counselor arranged for school personnel to refer to the child by a male name and male pronouns.  The counselor advised the child about LGBTQ+ support, top surgery, and breast binding.  When the child told the counselor the child wanted  to tell the mother about the new gender identity, the counselor encouraged the child to speak with other family members first.  The child spoke to the child’s grandmother, who then told the mother.  The mother told the child that the mother supported the child in her decisions if that is what the child wanted. The mother expressed to the school personnel her concern that she had not been informed that the personnel were treating her child as a boy; and that if she had known she would not have allowed them to “socially transition her daughter without first seeking guidance from a mental health professional.”  Later, the child’s feelings about being a boy subsided.  At the time the complaint was filed, the child identified as a girl and was in therapy for depression and anxiety.  Meanwhile, the mother’s other child allegedly began exhibiting traits making her more likely to identify as a boy as she gets older.  The mother filed suit seeking a declaration invalidating the policy as violating the mother’s constitutional rights and an injunction against the policy’s enforcement.  She asserted facial and as-applied procedural and substantive due process and First Amendment claims.  The district court dismissed the action, ruling that the mother had failed to allege the existence of a fundamental right that was clearly established in existing precedent.  It denied leave to amend as futile.

The 9th Circuit ruled that the district court erred in dismissing the substantive due process claim, because the district court failed to conduct the proper analysis in determining whether the mother adequately alleged the existence of a cognizable fundamental right protected by substantive due process.  Parents have a broad fundamental right to make decisions concerning the care, custody, and control of their children, but those rights are confined by the interests of the State.  The district court erred by borrowing the standard for qualified immunity and determining whether the right had been clearly established and placed beyond debate by existing precedent.  The qualified immunity framework does not govern the merits of substantive due process claims.  Instead, the inquiry is whether an asserted fundamental right is objectively deeply rooted in the Nation’s history and tradition, and implicit in the concept of ordered liberty, such that neither liberty nor justice would exist if it was sacrificed.  While courts must be reluctant to expand the concept of substantive due process and exercise the utmost care before breaking new ground, the right does not have to be clearly established by precedent.  The appellate court declined to undertake the proper analysis itself, because the parties had failed to consistently articulate the scope of their respective claims and defenses.  The substantive due process analysis must begin with a careful description of the asserted fundamental right.  The plaintiff had provided shifting definition of the right, and the defendants had failed to consistently identify the district’s justification for its policy.  The district court had no opportunity to address the parties’ revamped arguments.  The 9th Circuit therefore remanded the issue to the district court.  The court will have to determine whether the plaintiff’s asserted right meets the criteria for a fundamental right and examine the nuances of the district’s policy, considering precedents on parents’ rights and the state’s interests in limiting those rights.  Regarding the procedural due process claim, the district court erred in determining a lack of a fundamental right defeated that claim.  Procedural due process does not merely protect fundamental rights; it protects all liberty interests derived from state law or from the Due Process Clause itself.  The 9th Circuit remanded that issue as well.

Qualified Immunity for Academic 1st Amendment Retaliation Claim Was Not Amenable to Resolution at Pleadings Stage

In Jensen v. Brown, published March 10, 2025, the 9th Circuit Court of Appeals reversed the dismissal of a 42 U.S.C. section 1983 lawsuit without leave to amend.  The plaintiff is a mathematics professor at a state community college.  The board of regents for the state college system adopted a policy that lowered the academic level of certain math classes.  The plaintiff objected to this policy.  The dean of sciences at the college facilitated a "math summit" to discuss the policy's implementation "with the community."  During a question-and-answer session, the plaintiff attempted to comment on the policy.  The dean cut him off.  The plaintiff went to his office and created a handout that discussed his concerns with the policy.  During a break in the summit's programming, he went room to room distributing the handout to the participants.  The dean directed him to stop.  She accused him of disobeying her and being a "bully," stated his conduct was "disruptive," and warned him that he had "made an error by defying her."  A week later, she sent the plaintiff a letter of notice of reprimand, along with a proposed letter of reprimand accusing the plaintiff of "insubordination" at the event.  An official letter of reprimand was then placed in the plaintiff's personnel file.  The plaintiff then sent an e-mail to the college's faculty complaining about the policy.  About a week later, the plaintiff, under pressure from the dean, resigned as chair and member of a tenure committee.  The dean raised issues with the professor's syllabus policies.  That dean and another dean rated the plaintiff unsatisfactory during two annual performance evaluations.  The evaluations triggered a disciplinary termination hearing, although the plaintiff does not allege he was terminated or disciplined based on the hearing.  The plaintiff sued various college and college system administrators alleging (1) 1st Amendment retaliation, (2) procedural due process violations, and (3) equal protection violations.  The administrators moved to dismiss the complaint based on sovereign immunity and qualified immunity.  The district court dismissed the claims without leave to amend.

The 9th Circuit ruled the district court erred in dismissing the plaintiff's personal capacity 1st amendment retaliation claim against the administrators.  Applying the Pickering inquiry for a public employee's 1st Amendment retaliation claim, the court ruled the plaintiff's criticism of the changes in the mathematics curriculum addressed a matter of public concern.  The scope of the handout distribution was instructive but not determinative of the public concern issue.  Under 9th Circuit precedent, the Garcetti v. Ceballos rule that speech according to public duties is not protected by the 1st Amendment does not apply to teaching and academic writing.  Because the plaintiff's speech was focused on the contents of the school's curriculum, it relates to scholarship and teaching and so does not come within the Garcetti rule.  The plaintiff alleged facts that plausibly linked alleged retaliatory acts to his speech.  Although the Pickering test balances the employee's right to speak against the state's interests as an employer, unless the facts alleged in the complaint decisively indicate that the state's interest outweighs the plaintiff, the Pickering balancing test is not amenable to resolution on a motion to dismiss, and is generally deferred at least to the summary judgment stage.  Since the facts alleged do not show an “actual, material and substantial disruption” or “reasonable predictions of disruption” to support the
Administrators’ claim that the state’s interest outweighs the plaintiff's, this inquiry could not be resolved at the pleadings stage.  Since at the time of the events, 9th Circuit authority put a reasonable official on notice that the plaintiff's speech involved an issue of general public interest, need not be aired to the general public, and did not fall outside 1st Amendment protection simply because it was made according to official duties, and the balancing test could not be resolved at the pleading stage, the question of whether the administrators violated clearly-established law also could not be resolved at that stage.  The district court therefore erred in dismissing the claim based on qualified immunity.  The official capacity 1st Amendment claim was not barred by sovereign immunity, because it sought prospective injunctive relief.  Although the complaint failed to allege facts showing an interest protected by procedural due process, or an equal protection claim, the district court erred by denying leave to amend those claims without providing a reason for doing so.

State Law Exhaustion Requirement May Not Be Used to Immunize Officials from Liability under 42 U.S.C. § 1983 by Making Suit Impossible

In Williams v. Reed, published February 21, 2025, a divided U.S. Supreme Court reversed a state supreme court decision affirming dismissal of a lawsuit under 42 U.S.C. section 1983.  A group of unemployed workers alleged that the state unlawfully delayed processing their state unemployment benefit claims.  State law provided that state courts could not entertain appeals from decisions allowing or disallowing a claim for benefits unless the person filing the appeal had exhausted the administrative remedies under the suit.  The claimants sought a court order requiring the  state to speed up its administrative hearing process.  The state courts dismissed the action on the ground that the plaintiffs had not exhausted the administrative hearing process.

The Supreme Court, 5-4, ruled that the exhaustion requirements as applied here had the effect of immunizing the state officials from suit under section 1983.  Because the claimants cannot sue until they complete the administrative process, they can never sue under section 1983 to obtain an order expediting the administrative process.  The majority emphasized that its ruling was narrow.  Four dissenting justices opined that because states can choose whether to permit section 1983 suits in state court, the state court's decision was correct.

Failure to Give Student Opportunity to Explain Himself before Extending Suspension on New Charge Violated Clearly-Established Law

In K.J. v. Jackson, published February 11, 2025, the 9th Circuit reversed summary judgment for the individual defendants in a 42 U.S.C. section 1983 case.  The students involved in a lunchtime fight on a high school campus were suspended for fighting on campus.  The plaintiff was included.  Before he and the other students were suspended, they met with administrators and provided written statements about the incident.  At some point after the plaintiff was sent home from school, a vice principal watched surveillance videos of the fight, and learned one of the students involved suffered injuries.  The vice principal concluded that plaintiff not only participated in the fight, but willfully caused serious injury to another person that was not in self-defense.  The night before the plaintiff was scheduled to return to school, the vice principal called the plaintiff's mother and told her school officials had decided to extend the plaintiff's suspension and were recommending his expulsion.  The plaintiff was not on the call.  The next day, the vice principal sent the parents an e-mail summarizing the call, and providing updated suspension/expulsion paperwork.  It advised the parents their next step was to communicate directly to the district's appeal department.  The parents met with a counselor from the department.  The plaintiff was not required to attend, not invited to attend, and did not attend.  His parents were not allowed to present any defense to the factual allegations underlying the suspension and recommended expulsion.  The parents then sued the district, the vice principal, and other school district officials challenging the suspension and recommended expulsion.  Five days later, the suspension was lifted and the recommendation for expulsion rescinded.  Between the suspension and the return to school, no one from the district or school ever communicated with the plaintiff. The district court agreed with the plaintiff that the district violated his 14th Amendment right to procedural due process by extending his suspension and recommending expulsion without providing him with notice of the charges against him, an explanation of the evidence, and a chance to tell his side of the story.  But it granted summary judgment on the grounds that the individual defendants were entitled to qualified immunity, because the law did not clearly establish a right to due process before a suspension is extended.  And it concluded that the plaintiff lacked Article III standing to seek expungement of his record.

The 9th Circuit agreed that the defendants violated the plaintiff's due process rights.  Goss v. Lopez (1975) 419 U.S. 565, 580-581 established the student's due process rights to notice of the charge and evidence, and a right to be heard, before suspension.  The defendants contended that they gave the plaintiff that right before his initial suspension.  But because the defendants never informed the student of the new charges and new evidence that formed the basis of the extended suspension, he did not have a meaningful opportunity to present his side of the story.  That the suspension was an extension, rather than an original suspension, was of no consequence.  Further, Goss clearly established the student's right to due process.  The suspension extension was not based on the same alleged conduct as the original suspension.  The plaintiff did not have an opportunity to present his side of the story as to the new charges and evidence.  The procedures delineated in Goss clearly apply to suspension extensions based on new charges or new evidence.  Finally, the plaintiff may seek expungement of any records of the suspension extension and expulsion recommendations.  There is no 11th Amendment bar to the plaintiff seeking prospective injunctive relief from an ongoing violation of federal law.  The district court's finding that the relief sought was moot was error.  The relief sought was not moot at the time the plaintiff filed suit, because he was still suspended and unable to return to school.  He had standing to seek injunctive relief to stop the ongoing effects of the violation.  And because the suspension report and expulsion recommendation remain in his disciplinary files--accessible to district personnel-- and he would likely need to self-disclose that information on college applications, his prayer is not moot.

Humane Officers Not Entitled to Discretionary Immunity for Seizing Animals without Providing Process Required by Statute

In Bakos v. Roach, published January 29, 2025, the Third District Court of Appeal reversed in part and affirmed in part the trial court's grant of summary judgment.  Acting on a tip, level 2 humane officers of the Humane Society obtained a search warrant under Penal Code section 597.1, searched the plaintiff's pheasant hunting club, and seized multiple animals that appeared to the officers to be abused, neglected, or both.  One of the officers issued a written Notice of Seizure of Animals stating the animals had been seized, setting forth the grounds, stating that the plaintiff was statutorily liable for the cost of the seizure and care of the seized animals, and that the animals would be deemed abandoned if the charges were not timely paid.  Three days later, the Society wrote the plaintiff a letter stating that because the animals had been seized pursuant to a search warrant, section 597.1 did not provide for an administrative hearing; but that the Society nevertheless wanted to address the plaintiff's concerns and give him an opportunity to respond.  The Society then obtained an order releasing the animals to it because the charges were not paid.  The plaintiff sued the officers, individually and on behalf of the Society, alleging negligence and abuse of process.  The defendants moved for summary judgment, challenging the action on its merits and also arguing the officers were entitled to discretionary immunity under Government Code section 820.2.  The trial court ruled the officers were not entitled to immunity, but granted summary judgment on the ground that the plaintiff could not establish the elements of his cause of action.

The appellate court ruled that when animals are seized under Penal Code section 597.1 under a warrant, subdivision (f) of section 597.1 entitles the animal owner to a postseizure administrative hearing.  The plaintiff established triable issues of fact on whether there was injury to his property caused by the denial of an opportunity for a postseizure administrative hearing.  After affirming summary adjudication of the abuse of process cause of action, the court addressed whether the officers were entitled to discretionary immunity.    The court concluded that because under California law corporations for the prevention of cruelty to animals enforce applicable law and prosecute offenders , and under statute a level 2 humane officer may exercise the powers of a peace officer, the Humane Society and its officers exercised quasi-governmental powers, and were subject to governmental immunity statutes.  Government Code section 820.2 immunity, however, does not apply where an individual defendant violated a statute, and immunity would frustrate the purpose of the statute violated.  Granting immunity to the officers and Society here may frustrate the purpose of section 597.1 in providing due process via a postseizure administrative hearing.  Further, it is not obvious that seizing animals or imposing costs under section 597.1 constituted policy decisions within the meaning of section 820.2.  Defendants therefore did not establish section 820.2 immunity applies to them.

Leaving Warning That Car Will be Towed on Windshield Two Days Before Towing It Provided Sufficient Notice to Satisfy Due Process

In Grimm v. City of Portland, published January 3, 2025, the 9th Circuit Court of Appeals affirmed the district court's grant of summary judgment to the city in a 42 U.S.C. section 1983 case.  The plaintiff parked a car on the side of a downtown street.  He paid through an app for an hour and 19 minutes of parking.  He then left the car parked there for seven days.  While the car was parked, parking enforcement officers placed multiple citations on the windshield, which piled up.  After five days, an officer placed on top of the pile a slip warning the car would be towed.  Two days later, an officer placed a slip on the car again warning of a tow.  That day, the city towed the car. The plaintiff never saw any of the slips before the car was towed.  He picked up the car from the tow company and paid $514 to do so.  He sued the city, alleging the city violated the 14th Amendment Due Process clause by giving him insufficient notice before towing the car.  The district court held the slip issued two days before the tow provided adequate notice because it expressly warned the plaintiff the car would be towed.  The district court also concluded that the city had information that the plaintiff was not receiving notice, because the citations had piled up.  The district court held that the city therefore had to provide the plaintiff with additional notice.  But because the plaintiff was not on the car's registration, and the app did not share the plaintiff's information, the court concluded the city had no practicable means to do so.

The 9th Circuit ruled that the city gave the plaintiff all the notice that the 14th Amendment requires.  The slip placed on the car five days after it was parked explicitly warned the plaintiff that the car would be towed if not moved; and it gave plaintiff two days' advance notice.  It was notice reasonably calculated to alert the car's user to an impending tow.  An individual with an interest in preserving uninterrupted access to his car would revisit the car after his parking session ended or his meter ran, and seeing the notice, would either move the car or pay for additional time.  The 9th Circuit rejected the theory that the city was obligated to use alternative means to notify him because the citations piling up indicated the plaintiff was not receiving notice.  Nothing about the city's method of notice required the plaintiff to confirm he had received notice.  Precedent establishes that notice provided by a ticket is generally sufficient.  Notice does not become adequate only when its receipt is confirmed.  Instead, absent specific information that notice was not received, the ultimate failure of notice in a specific case does not establish the attempt was inadequate.

Police Agency Acted within Its Discretion in Terminating Officer For Refusing to Comply with Vaccine Mandate

In Bedard v. City of Los Angeles, published October 31, 2024, the Second District Court of Appeal, Division 3 affirmed a trial court decision denying in part and granting in part a petition for administrative mandate.  In 2021, the defendant city passed an ordinance that required that all city employees be vaccinated against COVID-19 or request an exemption by a specified date.  Employees with medical conditions/restrictions or sincerely-held religious beliefs would qualify for exemption.  An exempt employee was subject to weekly testing during work hours at no cost.  Employees could not opt out of getting vaccinated without a specified exemption.  In an agreement with the union to which the plaintiff belonged, the city extended the compliance deadline; that between the original deadline and the new deadline, the employee would pay for interim testing, which would not occur during work hours; and that an employee terminated for noncompliance could seek reemployment subject to the vaccination requirements, or could resign or retire and be eligible for rehire after the vaccination order was lifted.  The plaintiff never submitted documentation showing she had been vaccinated or had applied for an exemption and would be tested.  On November 5, 2021, she was given a notice that if she did not meet all of the requirements, including showing proof of being fully vaccinated by the due date of December 18, 2021, she would be placed off-duty and served with written notice of separation.  She refused to sign the notice.  On November 7, 2021, the plaintiff sent an e-mail to her superior stating she would not be vaccinated.  She did not mention any religious or medical reason.  On November 16, 2021, the agency served the plaintiff with a complaint and relief from duty.  She was temporarily relieved of duty on November 17, 2021, pending a Board of Rights hearing.  The Board of Rights, after a hearing, found that the plaintiff failed to comply with the ordinance by refusing to be vaccinated, not seeking an exemption, and refusing to sign the notice.  The Board further concluded the plaintiff had not been given sufficient time to respond to the charges, in violation of Skelly, and awarded her back pay form the date of her discipline to the time the discipline was validated.  The chief of police stated he would not comply with the back pay order, finding that the Board did not have jurisdiction to award back pay.   The plaintiff petitioned for administrative mandate.  The trial court made findings of fact affirming the plaintiff's dismissal, but granting the petition to the extent the plaintiff sought back pay.

The appellate court ruled that substantial evidence supported the trial court's findings.  It further ruled that the Board did not abuse its discretion by terminating the plaintiff for failing to comply with the vaccination policy.  The vaccination requirement's objective was to protect the city's workforce and the public from a dangerous illness during a global pandemic.  The plaintiff's refusal to vaccinate placed her, her coworkers, and the public with whom she interacted while on duty at a significant risk of harm.  The severity of her conduct warranted the severity of the discipline.  The court further rejected the plaintiff's argument that the Skelly violation the Board and trial court found required reinstatement rather than back pay as a remedy.  The plaintiff did not cite any law to support her contention that reinstatement was an available remedy for the due process violation.  Further, although the plaintiff contended she would have been able to avoid termination if she had the full 30 days to respond to the charges, she offered no credible explanation of how she could avoid termination since she refused to vaccinate and did not fall under an exemption.

School District's Recission of COVID Vaccination Policy Did Not Render Employee Challenge Moot

In Health Freedom defense Fund, Inc. v. Carvalho, published June 7, 2024, a divided panel of the 9th Circuit Court of Appeals reversed a district court order granting judgment on the pleadings.  The plaintiffs challenged  the defendant California school district's mandatory COVID-19 vaccination policy.  The district reversed course on the policy multiple times.  The district court held that under Jacobsen v. Massachusetts (1905) 197 U.S. 11, rational basis review applied to a vaccination program.  It rejected the plaintiffs' contention that the COVID-19 vaccine is not a vaccine because it allegedly does not prevent disease, but instead mitigates it and is therefore a medical treatment.  The district court relied on CDC documents the district submitted, of which it took judicial notice.  After the oral argument of the case, the defendant district rescinded its COVID-19 vaccination policy.

The majority held that the case was not moot.  The district twice rescinded the policy when facing litigation risk, including after oral argument.  The majority deemed this a tactical manipulation of the federal courts invoking the voluntary cessation exception to mootness.  The district did not carry its heavy burden of showing it would not revert to imposing a similar policy.  On the merits, accepting the allegations in the complaint as true, the Jacobsen rule for vaccination programs did not apply.  The judicially noticed documents did not contradict the complaint's allegations sufficiently to rebut them.  The majority remanded the case to the district court.  A concurring judge raised the possibility that the district had sovereign immunity to the suit.  Another concurring judge opined that the allegations in the complaint were sufficient to invoke the plaintiffs' liberty right to be free of unwanted medical treatment.  A dissenting judge opined the case was moot.

Due Process Requires a Timely Forfeiture Hearing after Seizure for Civil Forfeiture, but Not a Preliminary Hearing

In Culley v. Marshall, published May 9, 2024, the U.S. Supreme Court affirmed the dismissal of the plaintiffs' claims under 42 U.S.C. section 1983 seeking damages for violation of due process.  Both plaintiffs were innocent vehicle owners whose vehicles were seized under civil forfeiture because they loaned the vehicles to drivers who possessed or were trafficking drugs.  In both cases, the state promptly filed forfeiture cases, but the cases took time to resolve.  The plaintiffs contended that the state violated due process by retaining their vehicles until the forfeiture hearings without first holding a preliminary hearing.

The majority held, 6-3, that in civil forfeiture cases involving personal property, due process requires a timely forfeiture hearing, but does not require a preliminary hearing.  The court relied both on its precedent discussing forfeiture hearings and on historical practice.

Two justices concurred in the decision, but wrote separately to criticize civil forfeiture.  Three justices dissented, opining that due process requires a retention hearing before the state holds personal property for months or years pending a forfeiture hearing.