Government Liability Update

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.

Eighth Amendment Claim for Excessive Fines May Be Ripe when the Fines are Imposed, Even if Not Yet Paid

In Thomas v. County of Humboldt, published December 30, 2024, the 9th Circuit Court of Appeals affirmed in part and reversed in part the district court's dismissal of a class action under 42 U.S.C. section 1983 challenging fines for illegal cultivation of cannabis.  Under the county code, illegal cultivation can carry daily fines of $6,000 to $10,0000.  Once a party is served with a Notice of Violation, the party has ten days to abate all violations or face penalties.  While the party can appeal, the penalties continue accruing during the appellate process. The county allegedly charged landowners based on imprecise data or the conduct of previous owners.  The class contended that the fines were barred by the Excessive Fines Clause of the 8th Amendment.  The district court dismissed the claims as unripe, because the class had not paid the fines, and untimely.

The 9th Circuit ruled that fines need not be paid to be ripe; under the circumstances, they were ripe when imposed.  The significant penalties caused the landowners emotional and psychological distress.  The landowners incurred engineering and legal expenses attempting to abate the violations.  The landowners therefore suffered concrete injury due to the imposition of the fines.  With one exception (where the landowner waited four years after a Notice of Violation to sue, and suffered no penalty in the meantime), the claims were timely.  The facial claims did not accrue when the ordinance was passed, but when the plaintiffs knew or had reason to know they had actual injury.  The as-applied challenges continued to accrue as daily penalties were applied.  The 9th Circuit further determined that under the facts alleged, the 8th Amendment excessive fines claims were plausible.  The fines, which could reach millions of dollars, and the demolition orders that could be granted under the code, could plausibly be alleged to be punitive rather than remedial.  The circumstances that the fines were in some cases for violations that predated the plaintiffs' ownership, that they were inaccurately charged or were the fault of previous owners, that lesser penalties could accomplish the same goals, and that the alleged offenses caused no harm beyond technical lack of compliance supported the contention that the fines were excessive.

Police Officers Violated Clearly-Established Law by Using Lethal Force on Suspect Holding Knife to Own Throat

In Singh v. City of Phoenix, published December 26, 2024, the 9th Circuit Court of Appeals reversed summary judgment granted to a police officer in a 42 U.S.C. section 1983 case.  The defendant and another officer responded to a report of an attempted robbery with a knife, and that the knife-wielder was chasing the victim with a knife in a parking lot.  When the officers arrived, the plaintiff was walking through a parking lot and not chasing anyone.  The officers parked their vehicles to form an L-shape around the plaintiff.  Still in her vehicle, the defendant officer ordered the plaintiff to stop and show both hands.  The plaintiff held a knife to his own throat.  The officer got out of her vehicle, ordered the plaintiff to stay where he was, drew her firearm, aimed it at the plaintiff and yelled that she would shoot him if he came any closer.  She repeatedly ordered the plaintiff to drop the knife.  The plaintiff made several statements that he wanted the officer to shoot him.  The plaintiff slowly moved toward the vehicle positioned between the two of them, and the officer moved backward in response.  She told him she did not want to shoot him, and he said he wanted to be shot.  The plaintiff appeared to stop near the front of the vehicle.  The officer shot the plaintiff once, in the abdomen.  Although the officers carried OC spray and tasers, the defendant officer testified she did not believe it was safe to use the taser, due to the parties' positions, and that neither taser nor spray would be effective given the distances between her and the plaintiff.  The officer testified she believed the plaintiff posed a threat to the officers and the public because he failed to follow orders and continued to advance toward her.  The plaintiff sued the officers for violation of his 4th Amendment rights, and also asserted state law claims.  The defendants moved for summary judgment.  The district court granted the defendant officer summary judgment on the section 1983 claim.  The court held that a reasonable jury could find that the officer violated the plaintiff's constitutional rights, but that she was protected by qualified immunity.

The 9th Circuit disagreed that the officer was entitled to qualified immunity.  The facts in the case were closely akin to a 9th Circuit case that sufficed to put the officer on notice that she would violate the plaintiff's 4th Amendment rights by using lethal force against him.  The facts were similar to the prior case in all material respects:  The suspects in both cases held knives to their throats rather than pointing them at anyone; the suspect was not in a physical altercation with anyone; the suspect did not threaten anyone with the knife; no one was trying to get away from him; the plaintiff did not threaten or attack the officers; d a reasonable jury could conclude the officers could have moved farther away at any time if they wanted to; the plaintiff was not committing a serious crime; the plaintiff did not actively resist arrest by trying to flee or attacking anyone; the officers were (or should have been) aware the plaintiff was emotionally disturbed; the officers failed to give the plaintiff effective warnings, because the warnings had no effect on him given his mental state; and there was a genuine issue of fact as to whether less intrusive means of force were available.

Officers Were Entitled to Qualified Immunity for Using Force to Disperse Protest

In Puente v. City of Phoenix, published December 19, 2024, the 9th Circuit Court of Appeals affirmed in part and reversed in part a summary judgment order in a lawsuit brought against police officers, supervisors, and the defendant city.  Then-President Trump held a rally at a city convention center.  Before the event, the police designated a free-speech zone for protest and a public-safety zone.  The police met with various protest organizers to make arrangements for the event.  The police erected a pedestrian fence between the zones, and had nearly 1000 public safety personnel present.  At the event, the crowd began growing violent.  Members thew water bottles, brought protest signs on long poles, passed out items to the crowd, shoved other persons, and appeared to prepare to breach the fences.  When persons who appeared to be Antifa members began pushing at the fence, officers fired pepper balls in front of them.  When members continued shaking the fence, officers fired pepper balls at them.  As the motorcade left the venue, crowd members began throwing rocks, water bottles, a device emitting a gas, and a pyrotechnical device.  Officers fired tear gas, flash-bang grenades, and pepper balls.  The officers declared an unlawful assembly, cleared the protesters by marching toward them, and used more non-lethal weapons on them.  The police chief praised the officers after the event for their professionalism.  After the event, officers circulated a mocking challenge coin depicting a protester receiving a groin injury.  Organizations and individuals sued officers involved, their supervisors, and the city under 42 U.S.C. section 1983.  The district court granted summary judgment on all claims except the 4th Amendment Excessive Force claims against officers who struck plaintiffs with projectiles.

The 9th Circuit held that summary judgment should have been granted as to all of the plaintiffs' claims.  The court held that there was no seizure as to plaintiffs who were subject to airborn irritants, and that the use of force as to those defendants was therefore governed by the 14th Amendment "shocks the conscience" standard rather than the 4th Amendment.  Because the actions at the time were all related to legitimate law enforcement interests, rather than a purpose to harm, the actions did not violate the 14th Amendment.  The post-event issuance of the "challenge coin" was of minimal relevance because it occurred after the event.  The analysis does not apply to the plaintiffs who were actually struck by projectiles. The court declined to determine whether they suffered a temporary seizure that would invoke the 4th Amendment, because under the circumstances the officers who used the projectiles were entitled to qualified immunity because their conduct was reasonable under the circumstances or did not violate clearly-established law.  Cases finding violations were materially distinguishable from the events here, and therefore did not clearly establish the law.  The 9th Circuit rejected the argument that the plaintiffs' 1st Amendment rights were violated because the officers did not issue verbal warnings to the crowd before using force.  The supervising officers were entitled to summary judgment, because where subordinates do not violate clearly-established law, there is no supervisory liability claim.  Finally, the plaintiffs failed to state a Monell claim against the city.

Officers Did Not Use Excessive Force in Shooting Suspect Who Approached Them with Toy Sword and Failed to Obey Commands

In Napouk v. Las Vegas Metropolitan Police Department, published December 10, 2024, a divided panel of the 9th Circuit Court of Appeals affirmed summary judgment for the defendants.  Officers received calls of a man with a "slim jim," "long stick," or "machete" acting suspiciously.  When the defendant officers arrived in the neighborhood, the plaintiffs' decedent came out from between two houses.  He was wearing sunglasses and had headphones in both ears.  He was carrying a long object that the officers thought was a machete.  The officers drew their weapons and ordered the man to drop the object in his hands.  They also ordered him to remove the headphones.  For five minutes, as the man walked slowly around one of the patrol cars, the object in various positions, the officers told the man to drop the sword and warned that they would have to shoot him if he did not. He would occasionally answer threats to shoot him with, "You have to" and, "I know."  Eventually, when the man came within nine feet of the officers and they became concerned about crossfire, the officers both shot him multiple times, killing him.  The object he was holding was a homemade plastic toy sword.  The man's parents sued the officers for violation of the decedent's 4th Amendment rights and their own 14th amendment rights, and asserted a Monell claim against the city.

The majority held that the officers did not violate the 4th Amendment.  The officers reasonably mistook the object in the man's hands for a real machete.  As such, he posed an immediate threat to the safety of the officers.  He was walking toward one of the officers, failing to follow commands to stop or drop the weapon for five minutes, caused them to retreat with increasing frequency, and came within 10 feet of them.  That he was walking slowly at times did not change that he was deliberately advancing on them with what appeared to be a long bladed weapon.  The officers attempted to deescalate the situation and engage with the suspect.  They also attempted to retreat.  By approaching the officers with an apparent weapon, the suspect committed a serious crime.  By refusing the officers' instructions, the decedent was actively resisting arrest or attempting to evade arrest.  SInce the decedent was brandishing what appeared to be a lethal weapon and advancing toward the officers, that he was apparently emotionally disturbed did not negate the threat he exhibited.  If anything, his erratic behavior made him more of a threat.  They also gave effective warnings.  The majority also ruled the officers did not violate clearly-established law.  The majority further rejected the parents' 14th Amendment claim for deprivation of a family relationship.  Since the situation did not provide time for deliberation, only an act with a purpose to harm unrelated to any legitimate law enforcement objectives would violate the 14th Amendment.  Assuming plaintiffs could assert a substantive due process claim based on the death of their 44-year-old son, and could make out an excessive force claim, there is no evidence the officers acted with anything other than legitimate law enforcement objectives of defense of themselves and each other.  FInally, because the officers did not violate the Constitution, the Monell claim fails.

One concurring judge opined that the parents should not have a 14th Amendment claim for the death of their adult son.  A dissenting judge opined that a jury should conclude whether the officers used excessive force under the circumstances.

District Court Lacks Inherent Authority to Impose Presumption Instruction as Sanction for Inadvertent Loss of Electronically-Stored Information

 

In Gregory v. State of Montana, published September 27, 2024, the 9th Circuit Court of Appeals reversed a judgment against the defendant probation officer and state.  There was an altercation between the plaintiff and the officer in the probation office parking lot that ended with the plaintiff’s arrest.  The incident was captured on an external surveillance camera that monitored the parking lot and that was operated by the probation office.Four days after the incident, the plaintiff’s criminal defense attorney contacted the department of corrections to request the parking lot footage.  The person who attempted to provide the footage did not realize that the surveillance footage would be automatically deleted in 17 days.  His various attempts to capture the footage ran into technical difficulties.  He took a cellphone video of the footage and provided that, but it was too poor to make out what it depicted.  The original footage was eventually deleted.  The plaintiff sued the probation officer under 42 U.S.C. Section 1983 for use of excessive force and a state law claim for assault and battery, and sued the state for negligent infliction of emotional distress.  The plaintiff brought a motion for sanctions against the state based on the loss of the parking lot footage.  The court granted the motion in part.  It rejected the plaintiff’s claim for a default judgment, and instead, invoking its inherent authority, the court instructed the jury that the probation officer used unreasonable force in the seizure of the plaintiff; and submit to the jury the issues of causation, damages, and punitive damages.  The cellphone video was played to the jury, but instructed the jury that because the state had failed to preserve the video, the jury was permitted to infer that the lost footage would have been favorable to the plaintiff.  The court instructed the jury that it had been established as a matter of law that the probation officer used excessive force against the plaintiff in violation of the 4th Amendment.  The jury awarded the plaintiff $75,000 in damages, and plaintiff obtained attorney fees.

 

The 9th Circuit ruled that the district court had erred in giving the instruction.  Although district courts have inherent authority to fashion their own sanctions for conduct that abuses the judicial process, that authority can be limited by statute and rule.  FRCP 37(e) has prescribed sanctions for loss of electronically-stored information due to failure to take reasonable steps to preserve it.  The court may order measures no greater than necessary to cure the prejudice.  Only upon finding that the party acted with intent to deprive another party of the information may the district court instruct the jury that it may or must presume the information was unfavorable to the party, dismiss the action, or enter a default judgment.  The sanction here fell within the category of sanctions that may be entered only for intentional conduct.  The rule precludes a district court from resorting to inherent authority to evade its strictures.  The case was remanded for a new trial.

Qualified Immunity Applied to Use of Force to Handcuff Struggling Suspect Who Had Struck Officer, but Not to Kneeling on Subdued Suspect

In Spencer v. Pew, published September 16, 2024, the 9th Circuit affirmed in part and reversed in part summary judgment for the defendant officers.  The vehicle in which the plaintiff rode pulled out of a driveway directly in front of an unmarked police car.  Defendant officers stopped the car for an unsafe maneuver.  The plaintiff appeared nervous, and gave officers a false name.  When the deception was discovered, the officers ordered the plaintiff out of the car and to put his hand behind him, as he was under arrest.  When an officer pulled the plaintiff's wrist behind him, the plaintiff hit the officer in the chest with his shoulder.  The officers then spent three and a half minutes struggling with the plaintiff and putting him in handcuffs.  During the struggle, officers punched, kicked, and repeatedly tased the plaintiff.  After he was double-handcuffed and subdued on the ground, an officer knelt on the plaintiff's back, despite the plaintiff's protests that he could not breathe.  The plaintiff sued the officers under 42 U.S.C. section 1983 for use of excessive force.  The district court granted the officers summary judgment based on qualified immunity, ruling that the officers had not violated clearly-established law.

The 9th Circuit agreed that the officers who struggled to subdue the plaintiff were entitled to qualified immunity.  Under the circumstances, including the plaintiff striking an officer and then resisting arrest for a long period, the use of excessive force was not obvious.  The plaintiff therefore had the burden of identifying case law that was not materially distinguishable and therefore would put the officers on notice that their actions violated the 4th Amendment.  The plaintiff failed to identify any such law.  On the other hand, existing case law put the officer who knelt on the plaintiff's back after he ceased resisting and protested he could not breathe on notice that he was violating the 4th Amendment.  The court rejected an argument that the officers who held the plaintiff while the other officer knelt on him were liable under the integral-participant doctrine.

Posting Arrestees' Personal Information without Rational Relation to Proper Purpose Violated Substantive Due Process

In Houston v. County of Maricopa, published September 5, 2024, the 9th Circuit Court of Appeals affirmed in part and reversed in part the dismissal of a putative class action under 42 U.S.C. section 1983.  The county published a Mugshot Lookup website on which it posted photographs and extensive personal identifying information about arrestees.  The photographs and information remain up for three days, and then are taken down.  In the meantime, the photos and information are often gathered by other Internet sites and therefore remain available.  The county justifies the the practice as promoting transparency in the criminal legal system.  The page does not contain information about the police who made the arrest, whether charges were pursued or dismissed, or the jail in which the arrestee is held.  The plaintiff was arrested, and his photo and identifying information were posted on the website.  He was never prosecuted on the charges noted on the post, which were later dropped.  The plaintiff alleged the county's conduct violated due process under the Fourteenth Amendment, the Fourteenth Amendment's Equal Protection Clause, and the Sixth Amendment.  The district court dismissed the action and denied the requested class certification as moot.

The 9th Circuit agreed that the posting did not violate Procedural Due Process or the Sixth Amendment.  But it ruled that the plaintiff had plausibly pleaded a substantive due process claim based on pretrial punishment.  The Due Process Clause protects pretrial detainees from punishment before adjudication of guilt.  To constitute punishment, a government action must harm a detainee and be intended to punish him.  Punitive purpose is assessed by considering whether the challenged conduct operates as a punishment, or whether it is but an incident of some other legitimate governmental purpose.  Based on the plaintiff's allegations, the posting caused him harm and public humiliation.  He alleged the posting permanently damaged his business and personal reputation.  The purported public purpose for the posting, transparency, does not establish a legitimate governmental objective.  The government did not make a showing that the posting promoted public safety.  Further, the posting is not rationally related to any such interest.  The county posted only information about the arrestee, and no information about the government activity leading to the arrest.  The county did not explain why the detailed information about the arrestee posted was necessary to public safety.  There was therefore a sufficient inference of punitive purpose to avoid dismissal

Legal Developments Favorable to Defendant That Occur After Incident Do Not Affect Whether Law Clearly Established at Time of Incident

In Sanderlin v. Dwyer, published September 4, 2024, the 9th Circuit affirmed the district court's denial of the defendant police officer's summary judgment motion.  During a mass protest, the plaintiff stood in front of the defendant officer, holding a sign.  The officer was equipped with a 40 mm launcher, capable of firing foam baton rounds.  The officer yelled, "I'm going to hit you, dude.  You better move!"  The plaintiff failed to immediately comply.  A few seconds later, the officer fired a foam baton at the plaintiff, striking him in the groin area.  The officer's body cam showed the suspect staggering away from the impact, unable to stand or walk properly.  He sustained severe injuries and required emergency surgery.  The officer contended that he was tracking two subjects who looked like they would throw paint at officers, and that the plaintiff was deliberately blocking the subjects from view.  The plaintiff denied this.  The plaintiff alleged the officer used excessive force against him in violation of both the 1st and 4th Amendment.  The officer moved for summary judgment on both prongs of qualified immunity.  The district court ruled that under the plaintiff's version of the events, a jury could find that the officer violated the plaintiff's rights; and that the violations were clearly established.

The 9th Circuit court agreed.  Regarding the 1st Amendment claim, it was clearly established at the time that police officers may not use their authority to retaliate against individuals for protected speech.  If a factfinder determines the officer's actions were retaliatory, his actions would violate clearly-established law.  Regarding the 4th Amendment claim, the court ruled that a reasonable factfinder could conclude the plaintiff was seized under the 4th Amendment, because the officer intentionally applied physical force and as a result the plaintiff's freedom of movement was restrained, even though he was able to walk away.  That the officer did not subjectively intend to restrain the plaintiff is immaterial, since the focus is on whether the conduct objectively manifests an intent to restrain, rather than on the officer's subjective intent.  There was a triable issue on whether the force used was excessive, and thus whether the use of force violated the 4th Amendment.  On the second prong of qualified immunity, based on 9th Circuit law at the time of the incident, it was clearly established that firing projectiles at non-threatening individuals was objectively unreasonable.  A Supreme Court decision issued after the incident took place limited the 9th Circuit's holding on that point, by holding intentional application of force is not sufficient to establish a seizure unless the force was intended to restrain.  But just as the "clearly-established" analysis disregards legal developments after the incident that are unfavorable to the plaintiff, it disregards subsequent legal developments that are favorable to the defendant.  The focus is on whether the law at the time of the incident gave the officer prior notice that the officer's conduct is unlawful.

District Court May Order Retrial of Damages Separate from Liability Only Where Issues Not Intertwined; That Newly-Discovered Evidence Would Conclusively Disprove Opponent's Case Does Not Relieve Party of Reasonable Diligence Requirement

In Marroquin v. City of Los  Angeles, published August 27, 2024, the 9th Circuit Court of Appeals affirmed a trial court orders granting partial new trial and denial of a motion for relief from judgment based on newly-discovered evidence.  The plaintiff sued the defendant city and an officer for alleged use of excessive force when the officer allegedly fired a less-lethal round at the plaintiff during a gathering after a basketball championship win.  The officer and the plaintiff disputed whether the officer fired the round at the plaintiff.  At trial, the jury found in the plaintiff's favor on her claims against the officer for excessive force and negligence, and on her negligence claim against the city.  The defendants were found not liable for battery.  The verdict form asked the jury to assess damages against each defendant.  The jury awarded the plaintiff $1.00 in damages against the officer and $1.5 million in damages.  Both sides moved for new trial.  Both agreed the jury acted improperly in apportioning the damages between the city and the officer.  The defendants also filed a renewed motion for judgment as a matter of law.  The district court denied that motion, but agreed that the inconsistent awards were irreconcilable and that damages should be awarded for a single injury, not apportioned between defendants.  The court granted a new trial limited to damages.  Before the second trial, the defendants moved under FRCP 60(b)(2) for relief from judgment based on two "previously undiscovered" surveillance tapes from the sporting venue that, they contended, showed that the officer could not possibly have discharged the round that injured the plaintiff.  The officer declared he discovered the footage when working off-duty providing security for the venue, but did not discover the video until after the trial.  The district court denied the motion on the ground that the defendants failed to show reasonable diligence in discovering the video.

The 9th Circuit agreed with the district court.  Although a district court may grant a new trial or all or some of the issues, the decision to grant a partial new trial is cabined by the 7th Amendment, which prohibits ordering a new trial limited to damages when damages issues are so interwoven with liability issues that the former cannot be submitted to the jury independently of the latter without confusion or uncertainty.   In addition, when a plaintiff seeks punitive or exemplary damages, ordering a partial trial limited to damages is impermissible, because liability issues are necessarily interwoven with damages issues because the damages depend upon the degree of culpability of the defendant.  Further, the issue of liability for intentional infliction of emotional distress is intertwined with the damages issue because the trier of fact can find liability only if it first finds the plaintiff suffered severe emotional distress, and the defendant would be entitled to present evidence that they did not inflict sufficient damages.  Issues may also be intertwined where the jury's mistake in awarding damages tainted the liability finding.  Here, the plaintiff's claim for emotional distress did not depend on the events leading to her injury.  Instead, she sought pain and suffering from her physical injury.  Therefore, the liability issues concerning the officer's conduct were distinct and separable from the emotional distress damages.  Further, the defendants did not identify any evidence showing the jury's improper apportionment of damages tainted the liability finding.  The appellate court agreed with the district court that the jury's confusion on damages was caused by the improper instruction on the verdict form to apportion damages.  The court further held the district court did not abuse its discretion in denying the Rule 60 motion, due to failure to show reasonable diligence.  The court rejected the defendants' argument that there is a "conclusive evidence" exception to the reasonable diligence requirement when new evidence would conclusively disprove the other side's case.