Government Liability Update

Government Code Section 821.6 Immunizes Officers for Failing to Cover Partially Nude Decedent During Investigation

In Leon v. County of Riverside, published May 27, 2021, the Fourth District Court of Appeal, Division 2 affirmed summary judgment in favor of the defendant county and deputies in a lawsuit alleging negligent infliction of emotional distress.  The plaintiff's husband was shot by a neighbor.  When a deputy arrived on the scene, he believed the decedent to be dead, but began rendering aid.  Shots rang out from neighboring property.  The deputy evacuated the area, forcing the plaintiff to leave.  When a second deputy arrived, the first deputy moved an SUV between the body and the source of the shots, and the second dragged the decedent behind the SUV.  As he did, the decedent's pants were pulled down, exposing his genitals.  The second deputy attempted chest compressions and announced the decedent dead.  More deputies and officers arrived, and nearly four hours after the first deputy arrived the shooter was found dead of a self-inflicted wound.  The body remained with its genitals exposed for approximately another four hours, when the coroner finished processing the body and collecting evidence.  The first deputy and lead investigator testified that they did not know why the body was not covered after the shooter was found dead.  The trial court granted summary judgment based on the immunities set forth in Government Code sections 815.2(b) and 821.6

The appellate court agreed that the statutes applied.  As interpreted by multiple appellate court opinions, Government Code section 821.6 immunizes the deputies from liability for any negligence in leaving the decedent's body exposed.  Section 821.6 immunizes public employees from liability for any injury-causing act or omission in the course of an investigation that may precede the institution and prosecution of a judicial or administrative proceeding.  In light of the investigation of the body, and statutory law barring moving a decedent, the acts for which the deputies were sued were part of their investigation.  Any negligence in leaving the body uncovered when it might have been uncovered is subject to the immunity.  Under Government Code section 815.2(b), the county cannot be held liable for the deputies' acts where the deputies are immune.  Government Code section 815 immunizes the county from any direct liability for negligence, because there is no statutory basis for that negligence.  Catsouras v. Department of California Highway Patrol was distinguishable, because the court in that case found that sharing photos of a decedent's remains was not part of official police business.  The court rejected an argument that the case law applying section 821.6 to investigations was wrongly decided, finding support for the statute in pre-Government Claims Act common law.

A concurring justice noted that the California Supreme Court had apparently interpreted section 821.6 to apply only to malicious prosecution, and that federal courts had followed that line of authority.  The justice agreed with the majority, however, that the lower courts had interpreted section 821.6 to apply to torts other than malicious prosecution.

Verdict in Federal Lawsuit that Police Strip Search Was Reasonable Bars Negligence Liability for Strip Search

In Shuler v. City of Los Angeles, published April 5, 2021, the Second District Court of Appeal, Division 8 affirmed judgment on the pleadings for the defendant city.  Police officers stopped the plaintiff's car and detained her during a narcotics investigation.  They arrested her passenger on suspicion of drug dealing.  The officers took the plaintiff and her car to a police station.  An officer strip searched the plaintiff, told her to urinate in front of the officer, and kept her in a holding cell for two hours before releasing her without charges.  The plaintiff sued the city and officers in federal court.  She alleged violation of 42 U.S.C. section 1983, and state law claims including negligence.  The court bifurcated the claims and tried the section 1983 claims to a jury.  The jury found that the officers had arrested and strip searched the plaintiff, but that the arrest and search were reasonable and did not violate her Fourth Amendment rights.  The federal court then declined to exercise supplemental jurisdiction over the plaintiff's state law claims and dismissed them without prejudice.  The plaintiff then filed suit in state court asserting her state law claims.  The state court granted judgment on the pleadings on the ground that the verdict in the federal case barred the state law claims.

The appellate court agreed. Collateral estoppel applied.  The only element of collateral estoppel that the plaintiff disputed was whether the issues in the two proceedings were identical.  Hernandez v. City of Pomona (2009) 46 Cal.4th 501 held that a federal verdict that a police use of lethal force was reasonable under the Fourth Amendment barred a negligence action under California law for the same use of force.  Although this case involves a strip search instead of use of lethal force, the result is the same.  The plaintiff contended that because the federal jury was instructed it had to find the search was intentional to find liability, the verdict did not preclude a negligence claim.  But the intentional instruction did not relate to the issue of reasonableness.  It only required that the jury find the officers intentional strip-searched the plaintiff, rather than accidentally.  Whether the officers intentionally strip-searched her is not in dispute in the state court case.  The dispute is over the reasonableness of the strip search.  Since the federal jury found the search reasonable, and the reasonableness element is the same under state and federal law, the verdict that the search was reasonable bars the action.

Although Officers Had Probable Cause to Arrest Suspect, They Are Not Immune from Negligence Liability for Interfering with Paramedic Treatment; Immunity for Injuries to Prisoners Does Not Apply to Public Employees

In Collins v. County of San Diego, published February 17, 2021, the Fourth District Court of Appeal, Division 1 affirmed a judgment entered after jury trial.  County sheriff's deputies investigated reports from the plaintiff that resulted from the plaintiff's delusions.  The plaintiff's roommates told the deputies that the plaintiff had been acting oddly.  There was conflicting evidence over whether the roommates said the plaintiff had been binge drinking.  The plaintiff left the apartment, stumbled, and fell.  A passerby called 911.  Paramedics arrived and began assessing the plaintiff.  An ambulance was called.  Sheriff's deputies, including one who had been involved in the call to the apartment, arrived and arrested the plaintiff.  There was conflicting evidence over whether the paramedics had completed assessment of the plaintiff.  The arresting deputy took the plaintiff to jail.  There, a nurse employed by the county conducted a medical intake exam.  The nurse decided the plaintiff was safe to place in a jail cell.  The plaintiff sustained a forehead injury, treated with a band-aid.  The jail doctor visited the plaintiff in jail.  He was not told of the plaintiff's hallucinations or incoherent statements, or that he had fallen and injured his head.  The doctor concluded no further care was needed.  The plaintiff fell again.  He was taken to a private hospital.  He was diagnosed with severely low sodium level and a brain bleed to his frontal lobe.  The doctors at the hospital allegedly mistreated the condition, further injuring the plaintiff.  The plaintiff settled with the hospital and its doctors.  He then sued the county, two of the arresting deputies, and the two nurses who saw him in jail.  The jury found the deputies and nurses negligent, but rejected an unlawful arrest claim on the ground the deputies had probable cause to arrest the plaintiff.

The court of appeal rejected the defendants' various attacks on the judgment.  The defendants argued that the negligence verdict against the deputies was inconsistent with the finding that they had probable cause to arrest.  The appellate court concluded that while probable cause would immunize the deputies from liability for a negligent arrest, it did not immunize them from negligence apart from the arrest.  Here, there was evidence supporting the plaintiff's theory that the officers negligently interfered with the paramedics due to arresting him before they had a chance to finish their examination.  The court also rejected an attack on an instruction that the deputies were liable for the doctors' and hospital's alleged negligence in treating him.  A defendant who negligently injures a plaintiff is liable for any subsequent injury from negligent treatment of the injury they caused.  The court rejected the argument that Government Code section 845.6 immunized the deputies or county from liability for the subsequent medical treatment.  Section 845.6 applies only to injuries to prisoners, and the plaintiff was not yet a prisoner when the deputies allegedly interfered with the paramedics.  The appellate court rejected the argument that the individual defendants were immune from liability for the plaintiff's injuries in jail under Government Code section 844.6's immunity for injuries to prisoners.  Section 844.6 immunizes only public entities, not public employees.  The nurse who initially examined the plaintiff argued he was immune under Government Code section 855.6, which immunizes examinations to determine if persons are dangers to themselves or others.  The court ruled that the immunity did not apply, because it is inapplicable to examinations for the purpose of treatment.  One of the purposes of the examination was to determine whether the plaintiff needed medical treatment.  Finally, the court approved the trial court's apportionment of the offset from the doctors' and hospital's settlement against the judgment, which did not reduce the percentage of the settlement amount apportioned to noneconomic damages based on MICRA limitations on noneconomic damages.  MICRA caps apply only to judgments, not settlements.

District Court Errs in Conflating Fourth Amendment Law on Police Use of Force with Broader Standards of California Negligence Law

In Tabares v. City of Huntington Beach, published February 17, 2021, the 9th Circuit Court of Appeals reversed the district court's grant of summary judgment on the plaintiff's claims for negligent use of force under California law.  The defendant police officer observed the plaintiff's decedent acting erratically on the street.   The officer parked, exited his vehicle, and asked the decedent to stop walking to talk.  The decedent refused.  The officer ordered the decedent to stop multiple times.  The decedent eventually turned toward the officer while speaking loudly and aggressively.  The decedent approached the officer with fists clenched.  The officer backed up while instructing the decedent to stop.  The officer tased the decedent, with no visible effect.  The decedent punched the officer in the face.  The two fought.  The officer put the decedent in a headlock.  The officer forced the decedent to the ground and struck him several times.  The suspect grabbed at the officer's belt.  The officer shouted, "Let go of the gun."  The officer felt something being taken from his belt.  It turned out to be the officer's flashlight.  The officer stood, drew his gun, and retreated about 15 feet from the decedent.  He saw the decedent holding what the officer should have known was the flashlight.  The officer shot the decedent six times, shouted, "Get down," and shot him a seventh time.  The decedent's mother sued the officer and the city under 42 U.S.C. § 1983 for violation of the Fourth Amendment, and asserted California law claims for negligence, battery, and violation of the Bane Act.  The district court granted summary judgment to the defendants on all claims.  It ruled that it rejected the negligence claim for the same reasons that it rejected her federal claims:  after multiple ignored warnings and sustained combat, the officer was objectively entitled to an inference that no amount of warnings or non-lethal means would safely subdue the decedent.  The plaintiff appealed only her negligence claim.

The 9th Circuit ruled that the district court had improperly conflated the standards for use of force under the Fourth Amendment with the broader standards that apply under California negligence law.  While federal law generally focuses on the tactical conduct at the time of shooting, under California law the officer's pre-shooting decisions can render his behavior unreasonable under the totality of the circumstances, even if the use of force at the time of shooting might be reasonable in isolation.  Under these standards, a reasonable jury could conclude that the officer should have suspected the decedent was mentally ill, and unreasonably failed to follow police protocol dealing with potentially mentally ill persons before using force.  Further, under either California or federal standards, a reasonable jury could conclude that the officer's use of deadly force was unreasonable because the suspect was 15 feet away, was not approaching, and was armed only with the officer's flashlight when the officer shot him without warning.  Further, that the officer yelled a warning before firing the final shot, then fired before the decedent had time to understand or comply with the command, could lead a reasonable jury to find the number of shots was unreasonable.

If No Single Police Officer in Chase or Use of Force Was Liable in Tort, Plaintiff Cannot Argue Combined Actions of Officers Were Unreasonable and Rendered City Liable

In Koussaya v. City of Stockton, published September 21, 2020, the Third District Court of Appeal affirmed summary judgment in favor of the defendant city and defendant police officers.  The plaintiff was a teller in a bank robbed at gunpoint.  Police officers confronted the robbers at the bank.  The robbers took the plaintiff and two others as hostages.  The robbers ignored police commands, and commanded a hostage to drive them from the site in her vehicle.  Police pursued.  Soon after the pursuit began, a robber shot the driver in the leg and threw her out of the vehicle, taking over the wheel.  A robber fired multiple shots from an AK-47 at the lead pursuing officer.  The pursuit reached speeds of over 100 MPH over 60 miles, and involved over 30 police cars.  The robbers continued shooting at the police cars.  There was confusion over which police lieutenant was commanding the pursuit, and lieutenants gave conflicting orders.  A captain who went to head off the vehicle saw it exit an offramp with a robber pointing his rifle toward the offramp.  The captain fired  shots toward the robber, who fired his weapon and withdrew into the moving vehicle.  Another officer shot at the vehicle on the exit ramp.  The plaintiff decided her best chance of survival was to throw herself out of the vehicle while it was traveling at high speed.  Minutes later, police officers fired multiple rounds into the vehicle, killing two robbers and the remaining hostage.  The plaintiff sued the officers and the city for assault and battery, intentional infliction of emotional distress, and negligence.  The complaint alleged violation of general orders, police orders, negligence in conducting the pursuit, and use of excessive force that resulted in her injuries.

The appellate court ruled that the trial court had erred in two respects.  It ruled the court abused its discretion in excluding portions of a critical Police Foundation report about the incident as hearsay.  Since the police chief who requested the review of the incident adopted portions of the report in a press conference, the trial court should have admitted those portions under the adoptive admissions exception to hearsay.  The appellate court also ruled that the trial court erred in excluding some of plaintiff's contentions of wrongdoing on the ground that they were not reflected in her claim.  The claim alleged wrongdoing concerning the response at the bank, the use of force, and the pursuit; the complaint merely filled in details to these general allegations, rather than introducing new theories of liability.  The appellate court concluded, however, that these errors were not prejudicial.  As a matter of law, the officers who used deadly force toward the vehicle at the exit ramp used reasonable force under the circumstances.  They had probable cause to believe the robber they shot at posed a significant threat of death or serious physical injury to the pursuing officers and bystanders.  While firing at the vehicle endangered the hostages in the vehicle, no reasonable juror would conclude those actions were outside the range of reasonable conduct under the circumstances.  The contention that the officers violated superiors' orders and general orders did not raise a material issue on reasonableness; those orders are evidence concerning reasonableness, but do not establish the standard of care for using deadly force.  And even if the officers violated a superior's order to fire, that violation was reasonable under the circumstances.  The argument that the officers provoked the use of deadly force by the manner in which they conducted the pursuit failed.  Vehicle Code section 17004 bars liability for the manner in which the officers operated their vehicles during the pursuit.  Vehicle Code section 17001 did not provide an exception, because the plaintiff was not injured by operation of a police vehicle, but by her decision to jump from the vehicle.  

Since none of the individual officers identified as allegedly being negligent were liable, the city could not be held vicariously liable for the allegedly negligent actions of the police collectively.  Doing so would be to hold the city directly liable despite the lack of statutory liability, in violation of Government Code section 815.

Police Officers Owe Duty of Reasonable Care to Arrestees

In Frausto v. Department of the California Highway Patrol, published August 21, 2020, the First District Court of Appeal, Division 2 affirmed a jury verdict in favor of plaintiffs in a wrongful death case.  Officers conducted a traffic stop of the decedent.  They suspected he was using drugs.  They observed him put something in his mouth and swallow it.  They repeatedly asked him if he had ingested drugs.  He repeatedly stated he had put gum in his mouth and swallowed it.  They observed no signs of drug intoxication.  They brought him to jail.  One of the officers prepared a probable cause declaration for the arrest that stated that the officer and another observed the suspect place what looked like a plastic baggie in his mouth and claim it was only gum.  The arrest report did not mention a plastic baggie.  The officer later testified the statements in the declaration about the baggie were mistakes.  Soon after the officers brought the suspect to jail, he collapsed in his cell.  He died of acute methamphetamine intoxication.  The jury found the arresting officers 68% at fault for the decedent's death, and the decedent 22% at fault.  On appeal, the defendants contended that they owed no duty of care to the decedent to do more than they did.

The Court of Appeal held that the arresting officers were in a special relationship with the decedent once they arrested him, imposing a duty of care similar to that a jailer owes a jailed person. Once in custody, an arrestee is vulnerable, dependent, subject to the officer's control, and unable to attend to his or her own medical needs.  The officer therefore owes a duty of reasonable care to the arrestee regarding the arrestee's medical needs.  The question of whether under the circumstances the officers should have recognized the arrestee had a need for immediate medical attention does not go to whether a duty exists, but rather whether the officers breached the duty.

Intentional Tortfeasors Are Not Entitled to Reduction or Apportionment of Damages Based on Comparative Fault

In B.B. v. County of Los Angeles, published August 10, 2020, the California Supreme Court reversed a judgment after jury trial in a case alleging police use of force against a resisting suspect, resulting in the suspect's death, was battery.  A decedent who appeared to be under the influence of PCP was accused of attempting to kill a woman.  In the presence of the defendant officers, the suspect began chasing the woman.  The officers tackled the suspect, who fought against them.  The officers pinned the suspect by kneeling on him, using tasers, hitting him, handcuffing and hobble-tying him.  The suspect passed away from brain death and swelling from lack of oxygen, following a cardiac arrest, due to post-restraint maneuvers or behavior associated with drug use.  The jury found the officers committed battery by using unreasonable force.  The jury apportioned 20% liability to one of the officers, 40% to the decedent, and 40% to other officers.  The trial court entered judgment against the 20% at fault officer for 100% of the non-economic damages because his liability was based on an intentionaltort.  The Court of Appeal reversed, holding that the officer could be held liable for only his proportionate share of the damages.

The Supreme Court reviewed case law leading up to the 1986 passage of Proposition 51, case law interpreting Proposition 51, ballot materials for the proposition, and an unpassed bill that preceded the proposition, and concluded that intentional tortfeasors may not assert the defense of comparative fault.  Although jurors should apportion fault between negligent and intentional tortfeasors (to determine the apportionment to which negligent tortfeasors are entitled), the judgment should not reduce or apportion the damages award against intentional tortfeasors based on comparative fault.  

Going and Coming Rule Bars City's Vicarious Liability for Employee's Auto vs. Pedestrian Accident, Despite Workers Compensation Treatment of Employee's Injury

In Bingener v. City of Los Angeles, ordered published January 9, 2020, the Second District Court of Appeal, Division 3 affirmed summary judgment for the defendant city in a personal injury suit.  A city employee who worked in a lab, seldom left the lab, and never used his personal vehicle for work-related travel, struck a pedestrian during the employee's morning commute to work.  The pedestrian passed away.  The city sought summary judgment based on the going and coming rule, which provides that an employee is generally not considered to be acting within the scope of employment when going to or coming from his regular place of work.  The Plaintiff argued that there was a dispute of fact on the work-spawned risk exception, because the city allegedly knew of health conditions that impaired the employee's ability to drive, but allowed him to return to work prematurely without placing restrictions on his driving.  The trial court granted summary judgment based on the going and coming rule.

The appellate court agreed that there was no issue of fact on the work-spawned risk exception.  The evidence established without dispute that the employee did not have a health condition or took medication that impaired his ability to drive on the date of the accident.  The employee's treating physician, not the city, cleared the plaintiff to return to work after a back injury, and did not place restrictions on the employee's driving.  No evidence supported the plaintiff's theory that the accident was a foreseeable consequence of the employee's back injury two months earlier.

Pursuit Policy and Training Need Not Set Forth Speed Limits to Provide Immunity

In Riley v. Alameda County Sheriff's Office, published December 17, 2019, the First District Court of Appeal, Division 5 affirmed summary judgment for the defendant sheriff's office under Vehicle Code section 17004.7, which immunizes public agencies from liability for collisions involving vehicles pursued by peace officers if the agency adopts and promulgates a written policy on, and provides regular training for, vehicular pursuits.  The plaintiff's motorcycle was struck by a car fleeing sheriff's deputies.  He alleged that the sheriff's office's policy, promulgation of the policy, and training did not meet statutory requirements.

The court ruled that the policy, promulgation, and training met the requirements.  The plaintiff contended that the policy did not meet the requirement to determine factors to be considered by an officer and supervisor in determining speeds throughout a pursuit.  The court ruled that although the policy did not expressly state factors to be considered in determining speeds, it set forth 17 factors to be considered in making pursuit decisions, which included the speeds involved and other factors that would require the consideration of speed.  Similarly, the training included warnings against excessive speeds, and required consideration of factors involving speed.  The law did not require the policy to include numeric speed limits.  The court also rejected the argument that the department's promulgation of the policy did not meet the requirements of ordering that all officers sign off on the policy.  The department promulgated a general order requiring all officers to read the policy in a timely manner and sign off electronically that they had done so.  Eighty percent of officers in the department had done so.

Sheriff Entitled to Discretionary Immunity for Enacting Policy of Not Informing ICE of Undocumented Alien Releases

In Steinle v. City and County of San Francisco, published March 25, 2019, the 9th Circuit affirmed dismissal of state law negligence claims against the defendant municipality.  The county sheriff informed the federal government that his department would not honor Immigration and Customs Enforcement detainer requests (to detain released prisoners for ICE) or notify ICE of any undocumented alien unless a judicial order or warrant was issued for the alien’s removal.  The sheriff then issued a memo establishing protocols and parameters for the department's communications with ICE.  The memo changed the longstanding practice of freely providing information to ICE regarding undocumented aliens in custody.  After serving federal time for drug offenses, an undocumented alien was released to the sheriff's custody to face felony charges for selling drugs.  The charges against him were dropped the next day.  ICE sent the sheriff's department a detainer request asking to be notified 48 hours before the alien's release and that the sheriff's department hold the alien until ICE could take custody of him.  The sheriff's department released the alien without notifying ICE.  Later, the alien shot and killed plaintiffs' decedent.  The plaintiffs sued the municipality for negligence in issuing the policy.  The district court granted the municipality's motion to dismiss the negligence claim.

The 9th Circuit panel unanimously held that the municipality was entitled to discretionary immunity under Government Code sections 820.2 and 815.2(b).  The memo was the sort of policy decision that is immunized by section 820.2.  The sheriff actually exercised his discretion in issuing the policy.  Further, the law gave the sheriff discretion to issue the policy.  Under Government Code section 26605, the sheriff had the authority to keep the jail and the prisoners in it.  8 U.S.C. sections 1373(a) and 1644, which prohibit local restrictions on sending information regarding the immigration status of individuals to the INS, did not deprive the sheriff of discretion to enact the policy; despite legislative history to the contrary, nothing in the statutes' language required sharing information about the release of prisoners to the ICE.  The federal government's control over immigration matters did not require the sheriff to provide ICE with the release date.  The court rejected the argument that issuing the policy was an act of legislation outside the sheriff's discretion.  It also rejected the argument that the sheriff violated the California Public Records Act by not sharing the information.  The detainer request was not a CPRA request;  the CPRA did not require the sheriff to create a record; and at the time the detainer request was made, there was no record of a release that had not happened yet.  The court also rejected arguments that the policy conflicted with California or local laws.  A concurring judge opined that liability for the prisoner's release was barred by Government Code sections 845.8 (immunity for paroling or releasing a prisoner) and 846 (immunity for failure to retain a person in custody).