Government Liability Update

In Fifth-Amendment-Violation Case, Court Abused Its Discretion in Excluding Testimony of Coerced-Confession Expert

In Tekoh v. County of Los Angeles, published August 4, 2023, a divided panel of the 9th Circuit Court of Appeals reversed a jury verdict.  The plaintiff sued for an allegedly coerced confession.  He originally appealed based on the district court instructing the jury that a 42 U.S.C. section 1983 claim could not be grounded in a Miranda alone, and the exclusion of the testimony of his coerced-confession expert.  The 9th Circuit originally ruled in the plaintiff's favor on the Miranda issue, but the Supreme Court reversed that decision.  On remand, the plaintiff conceded that his Miranda claim was no longer viable, but maintained that the district court abused its discretion in excluding the expert.

The panel majority agreed.  The expert would have opined on how the text of confessions can indicate symptoms of coercion, and would have explained to the jury that the alleged tactics of the interrogating officer could elicit false confessions.  A jury could benefit from the expert's knowledge about the science of coercive interrogation tactics, and how they could elicit false confessions.   This is an issue beyond the common knowledge of the average layperson.  The district court incorrectly concluded that the testimony would vouch for or buttress the plaintiff's credibility.  But her opinion assumed the veracity of the plaintiff's claims.  Expert evidence that corroborates a witness's testimony is not a credibility assessment or improper buttressing.  Because the defense disputed that the officer used coercive tactics, despite the apparent obviousness of the coercion.  The testimony therefore had probative value.

A dissenting judge opined that the district court acted within its discretion in excluding the expert, that the interrogation as plaintiff described it was obviously coercive, and that the only issue was the credibility of the plaintiff.

While Evidence of Minor Plaintiff’s Subsequent Molestation May be Introduced into Childhood Sexual Abuse Trial, Trial Court Must Follow Statutory Procedure in Deciding What Evidence, if Any, to Allow

 

In Jane S.D. Doe v. Superior Court (Mountain View High School Dist.), published July 27, 2023, the California Supreme Court reversed a trial court decision denying a pretrial motion in limine.  The plaintiff sued the district to recover for sexual abuse committed by her fourth-grade teacher in 2009-2010.  There was evidence she was then molested by a family friend in 2013.  The plaintiff moved in limine under Evidence Code sections 352 and 1106 to bar evidence of the 2013 molestation.  The district contended that the 2013 incident may be the cause of the plaintiff’s emotional harm from 2013 forward.  It submitted sealed filings setting out what it knew of the 2013 molestation, and included a declaration as to the relevance of the evidence.  The trial court ruled that the evidence of the 2013 molestation fell outside the scope of any shield statute.  It reasoned that the statutory term “sexual conduct” in the shield statutes covers only voluntary conduct or a willingness to engage in such conduct; and that the molestation was involuntary.  The court then analyzed the admission of the evidence under Evidence Code sections 780 (credibility) and 352.  The court ruled that the district should be allowed to elicit information about the second molestation, in the most minimally invasive manner possible; and that under section 352, the probative value was not substantially outweighed by undue delay, prejudice, or misleading the jury.  After the ruling, the plaintiffs’ counsel petitioned the appellate court for a writ of mandate.  The appellate court initially granted a stay of trial that day, but denied the writ and dissolved the stay the next day.  The plaintiff’s counsel petitioned the Supreme Court for review.  Opening statements proceeded in the trial court.  In opening statement, the plaintiff’s counsel mentioned the evidence of the 2013 molestation.  The district’s counsel stated the evidence would show that the plaintiff blamed her emotional distress entirely on the employee’s molestation, but that it would introduce expert testimony diagnosing the plaintiff with PTSD from the 2013 molestation.  After some witnesses testified, the Supreme Court stayed the trial,  granted review, and remanded the matter back to the court of appeal. The trial court stayed the case, but told the jury that would be recalled for resumption of the trial.  The appellate court ruled that the shield statutes did apply, including the requirement under section 1106 that evidence could be admitted under Evidence Code section 783 if it went to credibility.  It then ruled that the trial court had in essence conducted the evidentiary hearing section 783 required.  The appellate court also upheld the trial court’s section 352 analysis.  It remanded the case for further trial proceedings.  The Supreme Court granted a second petition for review.

 

The Supreme Court concluded that the evidence of the 2013 molestation might be admissible under Evidence Code sections 1106, 783, and 352.  Section 1106(a) generally shields sexual harassment, sexual assault, or sexual battery plaintiffs by barring evidence of a plaintiff’s sexual conduct to prove consent by the plaintiff or absence of injury to the plaintiff.  Section 1106(e) states that the statute does not make inadmissible evidence offered to attack the plaintiff’s credibility under section 783.  Section 783(d) provides that the court may allow introduction of evidence regarding the plaintiff’s sexual conduct so long as the evidence is relevant pursuant to section 780 (governing witness credibility) and not inadmissible under section 352 (discretionary exclusion of relevant evidence due to undue prejudice).  Sections 1106(e) and 783, the Supreme Court ruled, address overall witness credibility, not just situations where the defendant contends the plaintiff is offering false testimony.  Credibility also concerns such matters as accuracy and memory.  Sections 783, 780, and 352 do work together to prevent admission of evidence that is unnecessarily harassing, irrelevant, or unduly prejudicial, but do not limit admission to challenging allegedly false testimony.  The Supreme Court disagreed with the appellate court’s conclusion that the trial court essentially carried out the evidentiary hearing procedure prescribed in section 783, however.  The statute requires that the trial court hold a robust hearing out of the presence of the jury, at which it would allow the questioning of the plaintiff regarding the offer of proof made by the defendant.  Here, the questioning would have been expected to address whether the plaintiff claimed 100 percent of her emotional distress damages is attributable to the employee molestation and none to the 2013 molestation.  Further, once determining the evidence was admissible, the trial court should have made an order stating what evidence the district could introduce and the nature of the questions to be permitted.  As a result, the district’s legal arguments throughout the litigation were a moving target.  Finally, the trial court’s section 352 analysis should be applied to serve the intent of the shield statutes to guard against unwarranted intrusion into the victim’s private life; and focus on the prejudice suffered by complainants who may experience harassment and intimidation, all weighed against the defendant’s right to a fair adjudication and to counter a plaintiff’s evidence.  The Supreme Court remanded the matter to the trial court to undertake proper proceedings under sections 1106 and 783.

Agency Has Burden of Establishing Documents Demanded in Public Records Request Are Exempt from Production

In Getz v. Superior Court (County of El Dorado), published December 13, 2021, a divided panel of the Third District Court of Appeal reversed in part and affirmed in part a trial court decision denying writ relief in a California Public Records Act case.  The petitioner requested from the real party county records between the county and any other party concerning a planned development.  The county produced an index of responsive documents, including e-mails, on a CD with hyperlinks to the texts of the e-mails or documents.  Believing he had not received all of the documents he sought, the petitioner submitted a new CPRA request, seeking all e-mails between any county department and anyone at four e-mail domains over a five-year period.  The county notified the petitioner it had located approximately 47,000 responsive e-mails, of which over 42,000 were newly identified.  The county asked the petitioner to refine his request to allow for a more focused search and to allow the county to review the responsive records before production.  The petitioner declined.  One of the domains was for a law office with which the county counsel worked.  The county produced an index of the 42,000 new emails (without hyperlinks) and asked the petitioner to narrow his focus.  He declined.  The petitioner also submitted a request to the county for all records in connection with the District Attorney's efforts to review an alleged misdemeanor by the petitioner.  The petitioner had never been charged, and the statute of limitations had run out.  The county declined to produce the documents, asserting they were exempt from production under Government Code section 6254(f) as law enforcement investigatory files and records.  The petitioner sought a writ compelling the county to respond further to his CPRA requests for the e-mails and investigatory files.  The trial court denied the petition as to the e-mail request on the ground the request was overbroad.  It denied writ relief as to the investigatory files on the ground they were exempt.

The appellate court majority ruled that the trial court's finding that the e-mail request was overbroad and burdensome was not supported by substantial evidence.  Because the county had identified the responsive documents and indexed them, the evidence established that the records could be located with reasonable effort and the volume was not unmanageable.  Although the county contended that it would have to search the e-mails to confirm they were public records, there was no evidence before the trial court that the county's e-mail exchanges with the requested domains would contain anything but information regarding the county's business with the entities at those domains.  The county did not provide evidence that the e-mails would contain personal information.  Further, the county had failed to provide sufficient evidence to require review of the e-mails to determine whether any exemptions from the CPRA would apply.  Although the county submitted evidence that e-mails exchanged with the law firm might contain attorney-client information protected under the common interest doctrine, that did not support a claimed need to review all of the indexed e-mails--only those relating to the litigation at issue, which might be identified by sender, recipient, and subject matter line.  The county must make some showing that exempt or privileged information exists in the records requested, especially where that seems unlikely.  Public agencies can reduce the potential burden by identifying and segregating potentially exempt records when they are created.

One justice dissented from this holding.  He opined that the burden on the county clearly outweighed the public interest underlying the request.

The court unanimously affirmed the trial court's ruling that the investigatory documents were exempt from disclosure, since the exemption applies after the investigation has closed.

Under Evidence Code Sections 1106 and 783, "Sexual Conduct" include Sexual Abuse

In Doe v. Superior Court (Mountain View School District), published October 29, 2021, the Second District Court of Appeal, Division 2 denied a writ petition challenging a trial court's decision to allow the defendant school district to present evidence of a plaintiff student's past sexual abuse.  The plaintiff sued the school district for allegedly negligently supervising a fourth-grade teacher who molested the plaintiff in 2010 and 2011.  The district sought to introduce evidence that a family friend sexually abused the plaintiff in 2013.  The plaintiff moved in limine to exclude the evidence under Evidence Code sections 1106 and 352.  In civil actions alleging sexual misconduct, section 1106 bars evidence of specific instances of the plaintiff's sexual conduct to prove consent by the plaintiff or absence of injury to the plaintiff.  An exception to the bar is evidence admissible under Evidence Code section 783, which allows evidence of sexual misconduct by the plaintiff offered to attack the credibility of the plaintiff if the court (in a motion proceeding described by the statute) concludes the evidence is relevant and is not barred under Evidence Code section 352 (requiring evidence be more probative than prejudicial).  The district filed a motion for admission of the evidence under section 783.  The trial court ruled that neither section 1106 nor section 783 applied, because "sexual conduct" was limited to voluntary sexual misconduct.  The court then ruled the evidence was not barred by section 352.

The appellate court concluded that the trial court erred in interpreting sections 1106 and 783 to exclude involuntary sexual conduct.  Section 1106 was intended both to exclude evidence of a civil plaintiff's character trait for promiscuity, and to encourage civil complainants to bring lawsuits without fear of having the sexual aspects of their lives scrutinized.  The second, privacy-focused objective applies to both voluntary and involuntary sexual conduct.  Further, interpreting the statute not to apply to sexual abuse would lead to absurd results, such as allowing admission of evidence of all sexual conduct of a person under 18.  The weight of precedent in California and other states also interpreted "sexual conduct" to reach involuntary sexual conduct inflicted on a victim.  Although the trial court erred, the appellate court ruled that the error was not prejudicial, because the section 352 analysis the court conducted adhered to all but one aspect of the section 783 motion procedure.

Although Previous Authority Applied a Subjective Standard to Fourteenth Amendment Deliberate Indifference Claims by Pre-Conviction Prisoners, Qualified Immunity for Conduct During That Time Is Determined under an Objective Standard

In Sandoval v. County of Los Angeles, published January 13, 2021, a divided panel of the 9th Circuit Court of Appeal reversed summary judgment granted to the defendant county and three jail nurses in a lawsuit brought under 42 U.S.C. section 1983.  The plaintiff’s decedent overdosed on methamphetamine before arrest, swallowing the drug in an effort to avoid discovery.  The decedent appeared ill when taken into custody.  He said he might be diabetic.  A nurse tested the decedent’s blood sugar level, which was normal.  A deputy told the first defendant nurse that the decedent was ill and needed to be checked more thoroughly.  The nurse gave the decedent a second, quick blood sugar test, which was normal, and then left.  The decedent was put in a cell that was sometimes used as a medical observation cell and sometimes as a normal holding cell.  Although the cell was 20 feet from the nursing station, the first defendant nurse did not check on the decedent for the remaining six hours of the nurse’s shift.  The failure may have stemmed from the cell’s mixed use.  After the decedent was left unmonitored for eight hours, a deputy noticed the decedent displaying seizure-like behavior.  The second defendant nurse, the lead nurse on the response team, was told several times to call paramedics, but refused to do so.   The third defendant nurse called the head nurse, who said to call paramedics.   She later admitted she should have called paramedics. Instead, EMTs were summoned.  EMTs, unlike paramedics, do not have the training to deal with an unresponsive patient and will not transport unresponsive patients.  The EMTs advised the nurses that they would not transport the decedent.  Paramedics were then summoned.  As they tried to transport him, the decedent died.  The district court granted summary judgment to all defendants.  It sustained several one-sentence objections the defendant made to evidence.

The panel majority held that the district court erred both in sustaining the objections and in granting summary judgment.  The majority held that the district court should not have sustained the one-sentence objections, which excluded much evidence important to the plaintiff, particularly relevance and hearsay objections.  The court held that relevance objections are seldom useful in summary judgment motions, because the determination of whether a fact is material decides whether it is relevant.  It also held hearsay objections are seldom proper, because the focus is on whether the information in the evidence would be admissible at trial, not the form in which it is presented.  Turning to the merits, the majority held that the district court erred in determining that because at the time of the incident the standard of liability for a Fourteenth Amendment deliberate indifference claim for medical care to a pre-conviction prisoner incorporated a subjective element, the nurses were entitled to qualified immunity unless they were subjectively aware that their actions violated clearly-established law.  Instead, the court held that the qualified immunity prong of whether the nurses violated the constitution would be decided under the current, objective standard; and that the clearly-established-law prong of qualified immunity would also be determined objectively, by deciding whether a reasonable employee, charged with knowledge of the then-existing law, would have believed that his or her conduct was unlawful.  Under that standard, summary judgment for the nurses was not appropriate.  Viewing the evidence in the light most favorable to the plaintiff, the first defendant nurse acted objectively unreasonably in failing to examine the decedent more thoroughly, and in failing to monitor the decedent for hours.  The other two nurses acted objectively unreasonably in failing to summon paramedics, since an objective nurse in their situation would have known that EMTs could not transport an unresponsive patient.  All three nurses’ conduct violated the clearly established law that a patient in distress could not be denied immediate medical care.  The plaintiff had also submitted sufficient evidence that the county could be held liable for maintaining the policy of using the cell for either medical observation or ordinary holding, creating a situation where the nurses expected deputies to monitor the cell and deputies expected nurses to do so.

A judge concurred that the nurses who failed to summon paramedics were not entitled to qualified immunity, but opined that the first nurse was entitled to qualified immunity.  The judge asserted that because the legal standard at the time of the incident required subjective knowledge, there was insufficient evidence the nurse was subjectively aware of the decedent’s medical needs to overcome qualified immunity.  The judge further believed that the plaintiff had failed to raise a triable fact on the county’s liability.

Uncontradicted Expert Declaration that Alleged Sexual Assault Victim's Delay in Presenting Claim was Reasonable Did not Require Trial Court to Grant Late-Claim Relief

In N.G. v. County of San Diego, published December 28, 2020, the Fourth District Court of Appeal, Division 1 affirmed a trial court decision denying a Government Code section 946.6 petition for relief from failing to present a timely claim.  The petitioner alleged that a sheriff's deputy sexually assaulted her in a hotel room bathroom while her young daughter was outside the bathroom.  After the assault, the deputy allegedly told her that she could not let anyone know about this, and, "I know where to find you."  The petitioner presented a claim and an application for leave to present late claim 81 days after the six-month deadline to present a claim for damages had expired.  When her application was denied, the petitioner filed a petition with the court alleging that her failure to present a timely claim was the result of excusable mistake or neglect.  She supported the petition with a declaration that because of the incidents and the deputy's comments, she was scared to report him; that she was afraid her daughter would learn of the incident and that this would have a detrimental effect on her; that she was depressed after the incident and decided to not talk about the incident again; and that she thought that no one would believe her if she complained about a law enforcement officer.  She declared that she finally decided to contact a lawyer after she saw on the news that criminal charges had been filed against the deputy for allegedly groping other women.  The petitioner also presented a declaration from a retired police detective who owned a business called Sexual Assault Training and Consulting.  He opined, as an expert, that sexual assault victims commonly delay reports of assaults for the reasons the petitioner gave, and that the petitioner's reasons for delay were reasonable under the circumstances.  The trial court denied the petition, on the ground that the petitioner had failed to prove that she had a physical or mental disability that limited her ability to function or seek out counsel; and that under the circumstances a reasonably prudent would have made an effort to obtain counsel within the claim period.

The appellate court ruled that the trial court acted within its discretion in denying the petition.  It rejected the argument that the uncontradicted expert declaration that the petitioner had acted reasonably under the circumstances required the trial court to grant the petition.  The trial court was not required to rely on the expert's opinion on the ultimate issue presented.  It is the finder of fact, not the expert, that determines whether actions are objectively reasonable.  The appellate court also rejected the argument that the trial court failed to consider the relevant circumstances in determining whether the petitioner acted like a reasonably prudent person under the circumstances.  Had the trial court ignored the expert's declaration, which described some of the applicable circumstances, it would have abused its discretion; but there was no indication the trial court ignored it.  Finally, the trial court rejected the argument that the trial court was compelled to conclude that the petitioner's neglect was excusable.  The petitioner had the burden to establish extraordinary physical or mental disability that would prevent a reasonably prudent person from contacting counsel within the claim period.  The trial court acted within its discretion in concluding the petitioner had not met this burden.  To conclude otherwise would entitle any victim of sexual assault by a man in a position of authority to late-claim relief.  Any such carve out would have to be made by the legislature.

Because Offramp Was Constructed in Substantial Compliance with Approved Plans, Design Immunity Applied

In Menges v. Department of Transportation, published December 24, 2020, a divided panel of the Fourth District Court of Appeal, Division 3 affirmed summary judgment in favor of Caltrans based on design immunity under Government Code section 830.6.  A tractor-trailer exiting Interstate 5 at Avenida Pico swerved, straddled a curb, crashed through a light standard, and broadsided the vehicle on Avenida Pico carrying the plaintiff.  The truck driver told police he had no recollection of the accident and had no reason to exit the interstate at that point.  The plaintiff sued Caltrans, alleging that the striping and signage of the off-ramp was a dangerous condition of public property that had caused the truck to mistakenly and unintentionally exit the freeway and crash into the car.  Caltrans moved for summary judgment.  It presented evidence that the offramp was built substantially in compliance with an approved plan.  The court granted the motion.

The majority agreed that design immunity applied.  The plaintiff challenged the reasonableness of the design, based on the declarations of the plaintiff's two experts.  The appellate court held that substantial evidence of reasonableness establishes that element of design immunity.  The approval of the plan by a licensed engineer for Caltrans, exercising his discretion, was substantial evidence of reasonableness.  The opinion of the defense expert witness, after reviewing the materials and the information about the accident, that the design was reasonable was further evidence establishing reasonableness.  In light of that substantial evidence, the opposing expert opinions could not raise a triable issue of fact.  The plaintiff also contended that the expert declarations raised a triable factual issue on whether the offramp as built conformed exactly with the plan. The majority held that this was the incorrect standard:  To establish the second element of design immunity, the defendant must prove only that the improvement as constructed conformed substantially with an improved plan.  The plaintiff's experts opined that the constructed offramp's signage, gore point striping, and channelizer striping deviated from the plan.  Caltrans objected to these declarations as lacking foundation.  The trial court did not rule on those objections.  The majority sustained the objections, ruling that the experts did not provide a foundation in the evidence for their opinions.  That left Caltrans's expert's opinion that the construction complied with the plan.  Further, the evidence did not show that the deviations the plaintiff's experts identified were substantial.

A dissenting justice opined that any deviation from the plan should be analyzed under the test for loss of design immunity; and that the California Supreme Court had established that the substantial-evidence test should not be applied to loss of design immunity.  The justice further opined that the plaintiff's experts had a foundation for their opinions; and that the case law on which the majority relied was no longer good law.

Trial Court Erred in Treating Suit Challenging Water Rates as Administrative Mandamus Petition and Excluding Expert Declaration

In Malott v. Summerland Sanitary District, published October 19, 2020, the Second District Court of Appeal, Division 6 reversed a trial court judgment denying a petition for writ of administrative mandamus.  The defendant district, which provides wastewater collection, noticed a public hearing on a service rate increase.  The plaintiff, an apartment house owner, did not attend the hearing.  The rate increase was approved at the hearing.  The plaintiff then filed the administrative mandamus writ petition challenging the rate increase.  She alleged she was excused from exhausting the administrative remedy of the hearing because it was an inadequate remedy.  She challenged the district's method for calculating rates as violating the state constitution.  She filed a motion for judgment that included an expert declaration supporting her contentions.  The trial court granted a motion to strike the declaration on the ground that it had not been filed at the public hearing, and therefore was improper extra-record evidence.  The court upheld the rate as valid.

The court of appeal ruled that the trial court had erred both in striking the declaration and in denying the petition.  Plantier v. Ramona Municipal Water Dist. (2019) 7 Cal.5th 372 ruled that the public hearing required by article XIIID, section 6 of the California Constitution, added by Proposition 218, is an inadequate administrative remedy for challenging the method of calculating service fee allocation among parcels, and therefore does not have to be exhausted before the method is challenged in court.  Plantier involved a declaratory relief action.  The plaintiff's election to petition for administrative mandamus instead of filing a declaratory relief action does not prevent the plaintiff from challenging the rate calculation method.  The formality that the plaintiff styled her lawsuit as an administrative mandamus action does not prevent Plantier from applying.  The distinction between declaratory relief and mandamus is not always clear.  Where a plaintiff mistakenly files an administrative mandamus petition instead of an ordinary mandamus petition or declaratory relief cause of action, relief will not be denied where the allegations of
the petition are sufficient to support the other two causes of action.  Because the petition asked for relief that would be appropriate in a declaratory relief action, the petition should be judged on the substance of its allegations rather than its label.  Although administrative mandamus petitions are generally limited to the evidence in the administrative record, to confine petitioners to the record of an inadequate administrative remedy would improperly elevate an exclusionary rule over the right to have a forum to litigate.  Further, even in administrative mandamus actions, courts have the discretion to admit extra-record evidence if the criteria are met.  Here, the expert declaration was relevant evidence supporting the challenge the plaintiff was entitled to make.  The appellate court remanded the action to the trial court to permit both parties to present evidence before the court makes its decision.

Law Clearly Established That Shooting Suspect after Suspect Wounded Officer, but Danger Passed Violated Fourth Amendment, but Fourteenth Amendment Not Violated; No Clear Error in Admitting PTSD Evidence on Recollection Issue

In Lam v. City of Los Banos, published September 25, 2020, a divided panel of the 9th Circuit Court of Appeals affirmed in part and reversed in part denial of an FRCP 50(b) motion after jury verdict.  The defendant officer was called to the plaintiff's house to assist the plaintiff in dealing with his son, who was displaying mental illness symptoms.  When the officer and plaintiff came to the son's room, the son grabbed a pair of scissors and stabbed the officer.  The officer shot the son in the leg.  He and the plaintiff retreated down a hallway.  The officer's firearm jammed, and he used a method to clear the jam.  He then shot the son again, fatally.  Before trial, the officer moved in limine to bar evidence that he had suffered from post-traumatic stress disorder two years before the incident.  The district court denied the motion, without prejudice to objecting to the evidence at trial. The defendant did not renew the objection at trial. The jury found that the son had stabbed the officer; that the officer had retreated; and that the son did not approach the officer with scissors before the officer filed the second, fatal shot.  The jury found that the officer used force with an intent to harm.  The officer was found liable for violating the decedent's Fourth Amendment rights and the plaintiff's Fourteenth Amendment right to familial relationship.  

The panel majority affirmed the denial of the Rule 50(b) motion as to the Fourth Amendment claim.  Although the evidence established that the first use of deadly force, when the son stabbed the officer, was probably reasonable, the officer's use of deadly force after he and the plaintiff had retreated and the son was no longer armed, after the officer had time to clear his weapon, and in the absence of a warning to the son, supported the jury's finding that the use of force for the second shot was unreasonable.  The majority also ruled that denial of qualified immunity was proper, because the second use of force violated clearly established law.  Precedent from the Ninth Circuit had established that use of deadly force toward a suspect who had previously been armed or wielded a weapon, but was no longer doing so at the time force was used, was unreasonable.  Similarly, precedent established the fact that a suspect had wounded an officer or other person did not render use of deadly force against a suspect who no longer posed a threat reasonable.  The panel unanimously ruled, however, that the evidence did not support the finding of liability under the Fourteenth Amendment.  The time that passed was not sufficient for deliberation before the second shot was fired, so the test for violation of the Fourteenth Amendment--whether the conduct shocked the conscience--was whether the officer used force with an intent to harm that was unrelated to a legitimate law enforcement objective.  The jury's finding of acting with an intent to harm was not sufficient.  There was no evidence the officer used the force to bully the suspect, or out of retaliation.  Finally, the majority ruled that because the defendant did not renew the objection to the PTSD evidence, it could constitute error only if the district court committed plain error in allowing it.  Because the officer's ability to recall and self-report the events was at issue, the district court did not commit plain error in allowing the evidence.

The dissenting judge opined that because no previous case was sufficiently similar to the facts of this matter, the law did not clearly establish the second shot was unreasonable, and thus the officer was entitled to qualified immunity.  The judge also opined that allowing the PTSD evidence in was plain error absent evidence the officer suffered from PTSD at the time of the incident.

In Public Employment Discrimination Case, Court Erred in Prejudicial Appeal to Jurors, Allowing "Me Too" Evidence to Show Propensity, and Reversing Summary Adjudication

In Pinter-Brown v. Regents of University of California, published April 23, 2020, the Second District Court of Appeal, Division 8 reversed a judgment after jury verdict in favor of a professor of medicine in a FEHA action.  The plaintiff alleged gender discrimination based on a series of events during her employment.  In a pre-voir dire speech, the trial judge quoted Martin Luther King, Jr.'s "I have a dream" speech; told the jury about multiple civil rights figures who sought justice in the courts; and told the jurors, "It’s going to be your job to help bend that arc toward justice by rendering a verdict based on the law and the evidence that you are going to be hearing in this case.”  The court allowed the plaintiff to introduce extensive evidence of not only allegations of gender discrimination in the subject university, but racial discrimination across the University of California system.  Although before trial the trial court had summarily adjudicated the plaintiff's retaliation cause of action against her, the court allowed the plaintiff to amend the complaint before trial to add a nearly-identical retaliation claim.  The jury awarded the plaintiff over $13 million in damages.

The appellate court reversed the judgment because of "a series of grave errors that significantly prejudiced The Regents’ right to a fair trial by an impartial judge."  First, the pre-voir dire presentation to the jury sent a message to the jury that it had a duty to continue in the tradition of pushing society away from discrimination and towards equality.  The speech was not an impartial call to duty; it was "a resolute and stirring call to action which stacked the deck against" the defendant.  Second, the "me too" evidence included irrelevant evidence of racial discrimination complaints, and complaints against other universities.  "Me too" evidence may be admitted only to show intent and motive, among other things, with respect to the plaintiffs own protected class.  It may not be admitted to show the employer's propensity to harass.  The admission here violated both rules.  The reversal of the summary adjudication was also improper.  A summary adjudication removes the adjudicated cause of action from the litigation; it cannot be undone by amendment during trial.