Government Liability Update

Police Officer Violated Clearly-Established Law by Applying for and Obtaining Court Order for Destruction of Seized Property Owner Was Litigating to Regain

In Wright v. Beck, published December 1, 2020, the 9th Circuit affirmed in part and reversed in part summary judgment granted to the defendants in a 42 U.S.C. section 1983 lawsuit asserting violation of substantive due process rights under the Fourteenth Amendment.  (A separate unpublished decision affirmed summary judgment, based on qualified immunity, as to the plaintiff's Fourth Amendment claim.)  The plaintiff had a collection of over 400 firearms.  The city police department seized the firearms under a search warrant.  The plaintiff pleaded guilty to one count of possession of an unregistered assault weapon.  The plea agreement was that the plaintiff could not possess firearms for 36 months, and the firearms would be destroyed or sold unless the plaintiff could provide proof of ownership to the police under the department's policy.  The policy provided that the department must accept a sworn declaration, a sales receipt, or other proof of ownership unless there was articulable probable cause to disbelieve the evidence.  After pleading guilty, the plaintiff moved the Ventura County Superior Court for return of the property.  The court delayed ruling on the motion.  After the plaintiff completed probation, he and his attorney spent seven years negotiating with detectives and an assistant city attorney about the kind of records the plaintiff would need to provide.  The plaintiff again moved the Ventura Court for return.  The court ordered return of 26 firearms release of which the police did not oppose.  The court instructed the parties to meet and confer to determine whether ownership status of the rest of the firearms could be resolved informally, and if not to return to court.  The parties continued negotiating about the proof of ownership needed.  One of the detectives then applied ex parte to the Los Angeles Superior Court, to the same judge who had approved the search warrant nine years before, for an order permitting destruction of the remaining firearms.  The city did not give the plaintiff or his attorney notice of the hearing.  The court granted the application, and the city destroyed the firearms.  The plaintiff sued the detectives, the department, the chief, the city attorney, and the city.    The district court concluded that the plaintiff was not entitled to notice, so his due process rights were not violated.  It further concluded that the individual defendants and those sued in their official capacities were entitled to qualified immunity.

The 9th Circuit reversed summary judgment as to the detective who sought the ex parte order.  Fourteenth Amendment due process requires notice before deprivation of property, particularly before action that permanently deprives the owner of property.  Due process is not satisfied simply because judges have facilitated the deprivation.  Even in cases after the government has lawfully seized property, reasonable notice must be provided before a final deprivation.  California law has also for decades required notice as a due process requirement and a procedural rule, including the California Rules of Court concerning ex parte applications, before a court takes action depriving a person of property.  The first deprivation of the plaintiff's property was a temporary one, under a search warrant, and was not at issue.  The second deprivation, destroying the property while the plaintiff was negotiating for its return, was without notice to the plaintiff.  A reasonable trier of fact could find a due process violation under those circumstances.  Although the plaintiff had an opportunity to pursue remedies--the Ventura Court proceedings--that court never resolved the ownership dispute, due to the defendants' representations.  Although there was no precedent directly on point, the right to notice of the ex parte application was clearly established.  Where a clearly established rule is concrete and specific, a violation can be obvious without the need for on-point case law.  It was clearly established that due process requires notice, and the detective had fair notice his conduct violated the plaintiff's due process right to notice, particularly because the deprivation was permanent,  the officer acted without statutory authority, and the officer did not tell the Los Angeles court that the plaintiff was seeking return of the firearms in the Ventura court.

The district court erred in granting qualified immunity to the police chief and city attorney, sued only in their official capacities.  Qualified immunity is available only to government officials sued in their individual capacities.

The court rejected the argument that the detective was entitled to quasi-judicial immunity for carrying out a court order.  That is not available where the defendant seeks the order carried out.  It also rejected the argument that the plea agreement gave the police the right to destroy the weapons, since it permitted him to show his ownership interest in the guns.  The court also reversed the summary judgment granted to the agency and the city.

Warrantless Seizure of Firearms in Household of Person Detained for 72-Hour Observation Did Not Violate Fourth Amendment; Second Amendment Argument Barred by Issue Preclusion

In Rodriguez v. City of San Jose, published July 23, 2019, the 9th Circuit affirmed summary judgment for the defendant city, its police department, and a police officer in a lawsuit brought under 42 U.S.C. section 1983.  Officers responded to the plaintiff's 911 call for a welfare check on her husband.  The husband was ranting, mentioned shooting up schools, and stated he had a gun safe full of guns.  The officers detained the husband under Welfare & Institutions Code section 5150 for 72 hours observation. After the husband was removed from the house, the plaintiff confirmed that there were firearms in the house.  The officers found 12 firearms in the house--one registered to the plaintiff alone, the rest unregistered or registered to the husband.  The plaintiff objected to the removal of her personal handgun.  The officers confiscated all of the firearms.  The husband was evaluated at the hospital, admitted, and released a week later.  Later, the city filed a petition for forfeiture of the firearms.  The plaintiff intervened, asserting personal ownership of her handgun and community ownership of the others.   She asserted her Second Amendment right to keep and bear arms, since she was not prohibited from possessing or owning guns.  The court granted the city's petition.  The state court of appeal affirmed that the seizure did not violate the plaintiff's Second Amendment rights.  After the decision, the plaintiff changed the registration and ownership so that all the guns were in her name only, and obtained gun release clearances from the state department of justice.  The city declined her request to return the guns.  She then brought this lawsuit, joined by two gunowners' rights organizations.  She asserted violations of her Second Amendment and Fourth Amendment rights.

The 9th Circuit affirmed the district court's decision that the warrantless seizure of the firearms did not violate the Fourth Amendment. The public health and safety protection exception to the warrant requirement applied.  A seizure of a firearm in the possession or control of a person who has been detained because of an acute mental health episode responds to an immediate threat to community safety.  When asking whether the seizure falls within an exception to the warrant requirement, three factors must be balanced, based on all the facts available to an objectively reasonable officer:  The public safety interest; the urgency of that interest; and the individual property, liberty, and privacy interests.  Here, the seizure of the guns from the home affected a serious private interest in the personal property kept in the home.  But because the officers had probable cause to detain involuntarily an individual experiencing an acute mental health episode and send him for evaluation; the individual had threatened to use the firearms; and the officers did not know whether the hospital would detain the individual or keep him detained long enough to permit the officers to seek a warrant, the urgency of a significant public safety interest was sufficient to outweigh the significant property interest.

The 9th Circuit also concluded that the Second Amendment claim was precluded by the final decision of the state court, in which the plaintiff's Second Amendment rights were litigated.  The addition of the advocacy groups as plaintiffs did not change the issue preclusion analysis, because they lacked institutional standing.  They failed to show that the issue of whether a single gun owner's firearms should be returned either impeded their ability to carry out their mission or required them to divert substantial resources away from the organizations' preferred uses.

Trial Court Properly Granted Conditional New Trial/Remittitur when Size of Verdict indicates Jury Punished Public Entity Employer

In Pearl v. City of Los Angeles, published June 18, 2019, the Second District Court of Appeal, Division 7 affirmed a trial court's grant of conditional new trial.  The plaintiff, an employee of the defendant city, put on evidence that one of his high-ranking managers doctored a photo to show the male plaintiff and a male subordinate embracing on a jet ski.  Another manager published the photo, making homophobic comments along with it.  The plaintiff argued that these activities led to a perception in the workplace that he was gay and encouraged harassment based on his perceived orientation.  Eventually the plaintiff became ill from stress, with lasting health effects.  The defendants denied any misconduct.  The plaintiff sued the city under FEHA for harassment and failure to prevent harassment.  The jury instructions did not include the CACI instruction charging the jury not to punish the public entity defendant.  The city's attorney agreed the instructions given were complete.  The plaintiff counsel's argument included comments asking the jury to "make change" at the city through its verdict. The city did not object to those comments. The jury awarded over $17 million, including $10 in past noneconomic loss and $5 million in future noneconomic loss.  The city moved for new trial.  It argued the damages were excessive.  The new trial motion did not challenge the absence of an instruction against punitive damages.  The trial court concluded that the evidence did not support $10 million in past noneconomic damages.  It found that the jurors intended to punish the city, based on the jury's reaction to what the court concluded was perjury from the defense witnesses as well as the plaintiff's counsel's argument.  It granted new trial unless the plaintiff accepted a remittitur of the past noneconomic damages from $10 million to $5 million.  The plaintiff accepted the remittitur.  The city appealed, contending that a complete new trial should have been granted.

The appellate court rejected the city's argument that the trial court could not grant remittitur because the error was not excessive damages.  The city contended that the error was a defective verdict, based on an improper award of punitive damages.  In granting remittitur, the trial court did not speculate as to the amount of damages that consisted of punitive damages.  Nor did it attempt to address an issue apart from damages, such as reapportioning fault.  Instead, it exercised its discretion as a trier of fact to determine the amount of reasonable damages for the past noneconomic loss.  The court also rejected the arguments that the improper closing and absence of an instruction against punishing the jury required an entire new trial.  The city waived those arguments by failing to object to the closing and certifying the jury instructions as complete.  Further, the trial court considered the punishment and improper argument in ruling that remittitur was the proper remedy.

Eighth Amendment Limitation on "Excessive Fines" Applies to Civil Forfeitures under State Law

In Timbs v. Indiana, published February 20, 2019, a unanimous U.S. Supreme Court reversed an Indiana Supreme Court ruling on a civil forfeiture related to a criminal conviction.  The petitioner pleaded guilty to heroin dealing and conspiracy to commit theft.  The state limit on the fine for the offenses was $10,000.  The state sought civil forfeiture of the petitioner's $42,000 vehicle--which he purchased with proceeds from his father's life insurance policy--on the ground that it was used to transport heroin.  The petitioner challenged the forfeiture on the ground that it amounted to an excessive fine.  The state supreme court ruled that the Eighth Amendment limit on excessive fines did not apply to state law civil forfeitures.

The Supreme Court unanimously ruled that under the Fourteenth Amendment, the limit on excessive fines applies to civil forfeitures under state law.  The majority ruled that the Eighth Amendment was incorporated into the Fourteenth Amendment's due process clause under both tests for incorporation:  The protection was fundamental to the nation's scheme of ordered liberty; and it was deeply rooted in the nation's history and traditions.  The state argued that the clause does not apply to civil in rem forfeitures.  But Austin v. United States held that the clause applied to in rem forfeitures under federal law.  When a Bill of Rights protection is incorporated into the Fourteenth Amendment, the protection applies identically to both the Federal Government and the states.  The Supreme Court declined to overrule Austin.  The state also argued that whether the protection applied to civil in rem forfeitures was not fundamental or deeply rooted in the nation's history or traditions. In considering whether the Fourteenth Amendment incorporates a protection contained in the Bill of Rights, the court ask whether the right guaranteed—not each and every particular application of that right—is fundamental or deeply rooted.

Two concurring justices opined that the excessive fines protection was incorporated into the Fourteenth Amendment's Privileges or Immunities Clause, rather than its due process clause.

Claimant Who Alleges Claim Is Timely Due to Delayed Discovery May Be Estopped from Asserting Public Entity Waived Untimeliness

In Estill v. County of Shasta, published July 31, 2018, the Third District Court of Appeal reversed an order granting new trial after the trial court granted the defendant county summary judgment.  The plaintiff, a jail employee, was the subject of an internal affairs investigation in 2009.  In September 2009, the sheriff's office served the plaintiff with a notice of charges in support of proposed termination.  She was then mistakenly denied entry into the jail based on the belief she had been fired.  She realized jail staff had improperly received information about her, and complained.  Throughout 2009, she received information that others were inappropriately discussing her investigation.  She heard rumors about the parentage of her son.  She was terminated effective January 2010, and her administrative appeal denied in September 2010.  During the first half of 2010, she heard more comments about her son and heard that people unconnected to the investigation were talking about her case.  In February 2012, she presented the county with a claim for damages.  The claim alleged that information about the investigation had been leaked, that gossip and rumors had been spread, that a hostile environment was created, and that the plaintiff was harassed.  The claim alleged that the incident occurred in September 2009, but that the plaintiff "first became aware" of the incident in September 2011.  The County responded with a denial on the merits under Government Code section 913.  It did not send a Government Code section 911.3 notice that the claim was untimely.  The plaintiff sued under various causes of action that required a claim.  During her deposition, the defendants learned that she was aware of the alleged wrongdoing as early as 2009.  It moved for summary judgment.  The trial court initially granted summary judgment because the plaintiff failed to present a timely claim.  It then granted new trial, concluding triable issues of fact existed on whether the defendants had waived the claim-timeliness defense under section 911.3 by not sending a notice the claim was untimely.

The appellate court concluded that the undisputed facts established that the claim was untimely, and that the plaintiff was equitably estopped from arguing that the defendants waived the claim's untimeliness.  Under the delayed-discovery doctrine, the plaintiff's cause of action accrued when she became aware that information from her IA investigation was leaked and being discussed by people at the sheriff's department and other agencies, she had a strong suspicion about the source of the leak, and she was aware people were making allegedly defamatory statements about her and her son.  It was undisputed that she learned of these facts and her cause of action accrued no later than July 2010.  Ignorance of the identifies of the alleged wrongdoers did not affect accrual, because the defendant's identity is not an element of her cause of action.  She had suspicion that someone had done something wrong to her.  Because her claim was untimely, she could not maintain a claim for damages against the defendants unless she was exempt or excused from complying with the claim requirements.  The plaintiff's argument that the defendants waived the late-claim defense because the section 911.3 notice was not sent failed, because she was equitably estopped from making that argument.  She represented that she did not become aware of the alleged wrongdoing until September 2011, and omitted from the claim the facts showing she became aware earlier.  The county was not aware of the true facts concerning her knowledge, and relied on her representation in not sending an untimely-claim notice.  Where, as here, the facts are undisputed, estoppel is a question of law.  Just as a public entity may be estopped from asserting noncompliance with the Government Claims Act when its agents prevented or deterred a claimant from complying, a claimant may be estopped from invoking the section 911.3 waiver provision where the entity's failure to notify the claimant the claim is untimely is induced by the claimant's representation on the form.  The county did not forfeit the estoppel argument by failing to plead estoppel in its answer as an affirmative defense.  A party is excused from pleading estoppel where the party is unaware at the time it prepares the pleading that the defense may rest on estoppel. The plaintiff's argument that the county misled her by not giving her notice of late-claim relief procedures fails because even if it had given notice, she would not have been able to pursue those procedures:  more than a year had passed since accrual.

To Preserve Qualified Immunity Argument at Trial, Police Officer Must Move for Judgment as a Matter of Law Before the Case Goes to the Jury

In Lam v. City of San Jose, published September 5, 2017, the 9th Circuit Court of Appeals affirmed a district court's denial of a police officer's new trial motion after an $11.5 million verdict against her based on excessive force.  There were competing factual versions of what happened during the defendant officer's shooting of the plaintiff.  A third-party witness testified that when the plaintiff was 10-15 feet away from the officer, he turned his back on her and started to stab himself before the officer shot her.  Among other grounds for new trial, the officer complained that the district court failed to give her requested jury instructions, failed to give special interrogatories to the jury on qualified immunity, and should have ruled for her on qualified immunity.

The 9th Circuit ruled that the officer waived her qualified immunity argument.  Although she moved for summary judgment based on qualified immunity before trial,which was denied based on triable issues of fact, she failed to make a Rule 50(a) (motion for judgment as a matter of law motion before the case was submitted to the jury.  When qualified immunity depends on issues of fact, the defendant must make a Rule 50(a) motion before the case is submitted to the jury to preserve the qualified immunity issue.  She cannot require the court to submit special interrogatories to the jury on qualified immunity and then make a Rule 50(b) motion (revived motion for judgment as matter of law) after the jury answers the interrogatories.  The officer did not have a right to special interrogatories, and further did not submit special interrogatories to the court to give to the jury.  She therefore waived her qualified immunity argument for purposes of new trial and appeal.

Property Owner That Challenges Construction Permit Conditions in Court, but Proceeds with Construction Project, Forfeits Challenge to Conditions

In Lynch v. California Coastal Commission, published July 6, 2017, the California Supreme Court affirmed a lower appellate court decision reversing an administrative mandamus writ issued by a trial court.  The plaintiff homeowners sought a permit from the California Coastal Commission permitting them to build a seawall to protect their blufftop properties, replacing a damaged seawall, and to repair a beach access stairway.  The Commission approved a permit subject to conditions that included a 20-year expiration date on the seawall permit and a prohibition on reconstructing the lower stairway.  The plaintiffs recorded deed restrictions reflecting the conditions, and filed a petition for writ of administrative mandamus challenging the 20-year and stairway conditions.  While the litigation was pending, they satisfied all of the other permit conditions, obtained the permit, and built the seawall.  The trial court issued a writ directing the Commission to remove the challenged conditions.  The appellate court ruled that the plaintiffs had waived the conditions, and that the conditions were valid.

The Supreme Court declined to rule on whether the conditions were valid.  Instead, it ruled that the plaintiffs had forfeited their challenge to the conditions by by complying with all pre-issuance requirements, accepting the permit, and building the seawall. Because they took the benefit of the permit, they also had to accept the burden of the conditions. The plaintiffs could not preserve their rights by challenging some of the conditions and satisfying others. The Mitigation Fee Act allows permit seekers to construct projects while protesting exactions, but exactions do not include land use restrictions.  Allowing challenge of land use restrictions while construction proceeds would expand the statute beyond its language and legislative intent.  Property owners must therefore wait until the litigation over the permit conditions concludes before performing construction.  If the property is in imminent danger without construction, they may seek an emergency permit under Public Resources Code section 30624.  Property owners could also avoid forfeiture by reaching an agreement with the permit issuer allowing the construction to proceed while a challenge to the permit is resolved.

Recovery of Personal Property Seized Through Improper Police-Initiated Nonjudicial Forfeiture Does Not Require Exhaustion of Administrative Remedies or Presentation of Claim for Damages, and a Three-Year Statute of Limitations Applies

In Ramirez v. Tulare County District Attorney's Office,  published March 15, 2017, the Fifth District Court of Appeal reversed the dismissal on demurrer of multiple trial court petitions for writ of mandate seeking recovery of cash and other personal property that police officers seized from suspects under Health & Safety Code section 11469 et seq. Those forfeiture statutes permit both judicial and nonjudicial forfeiture of personal property connected with unlawful drug activity.  The statutes require that either judicial or nonjudicial forfeitures be initiated by the state attorney general or county district attorney.  The forfeitures at issue were initiated by police officers, rather than prosecutors.  The Tulare County District Attorney's Office asserted that eachwrit petition was barred by the failure to exhaust statutory administrative remedies, failure to present a claim for money or damages under the Government Claims Act, and failure to file the petition within the one-year statute of limitations prescribed by Code of Civil Procedure section 340.  The trial court sustained the demurrers on the statute of limitations ground.

The appellate court held that the petitioners had no obligation to exhaust the administrative remedies under the forfeiture statutes, because there were no valid forfeiture proceedings in which to pursue those remedies.  The police initiation of nonjudicial forfeiture rendered the forfeitures invalid in the first instance.  The Government Claims Act did not require presentation of claims for money or damages, because the petitioners sought return of property, not money or damages.  Finally, the one-year statute of limitations of Code of Civil Procedure section 340 did not apply, because it applies to forfeiture actions (i.e., actions seeking forfeiture) or actions for damages for seizure or forfeiture of property.  Instead, the three-year statute of limitations under Code of Civil Procedure section 338 for actions seeking specific recovery of personal property applied.