Government Liability Update

Eighth Amendment Excessive Force Claim Does Not Require Proof That Officer Derived Pleasure from Using Force

In Hoard v. Hartman, published September 13, 2018, the 9th Circuit found a jury instruction in an inmate's 42 U.S.C. § 1983 case alleging a guard used excessive force against him to be plain error, requiring reversal and retrial even though the plaintiff's counsel failed to object to the instruction.  The district court instructed the jury that to succeed on his Eighth Amendment excessive force claim, the plaintiff had to prove the guard acted "maliciously and sadistically for the purpose of causing harm" when he used force.  The jury requested a definition for "maliciously and sadistically."  The plaintiff's counsel concurred with the court's definition of "maliciously" as "‘having or showing a desire to cause harm to another" and "sadistically" as "having or deriving pleasure from extreme
cruelty."  The jury found for the defense.

The 9th CIrcuit held that the court's requirement that the plaintiff find that the guard had a desire to cause harm and derived pleasure was plain error.  Although Supreme Court cases have used the terms "maliciously and sadistically," and the 8th Circuit has interpreted this as a requirement for a use of excessive force that violates the Eighth Amendment, the 9th Circuit disagreed and held that the terms were merely rhetorical devices for conveying that the claim required a showing of specific intent to harm.

Female Officer Violated Clearly-Established Law by Observing Female House Inhabitant Use Bathroom During Execution of Search Warrant for House

In Iaone v. Noll, the 9th Circuit Court of Appeals affirmed denial of summary judgment to an IRA Agent in a 42 U.S.C. section 1983 lawsuit alleging the agent violated the plaintiff's Fourth Amendment rights.  The agent was part of a group of agents executing a search warrant for the plaintiff's house.  The agents informed the inhabitants that they were free to leave during the search, but would not be allowed to return.  The male inhabitant used the bathroom.  A male agent escorted him to the bathroom, searched the room, then stood outside the closed door while the man used the facilities.  Later the female inhabitant asked to use the bathroom.  The defendant agent insisted on staying inside the bathroom, ordered the female inhabitant to remove her clothes, and then faced the woman while she used the toilet.  She sued the agent.

The 9th Circuit agreed that the agent had violated the plaintiff's Fourth Amendment rights, and was not entitled to qualified immunity.  The majority, citing a series of 9th Circuit cases involving officers of one gender observing persons of another gender nude (and in one case using the bathroom), concluded that, regardless of gender, case law established at the time of the incident that observing an undetained person in her own home while she used the bathroom was a significant intrusion into her privacy.  The law further established that the search warrant for the premises did not justify searching an individual on the premises absent reasonable suspicion the person is armed and dangerous.  None of the agent's justifications for the observation were supported by the circumstances.

A concurring judge disagreed that cases limiting officers of the opposite gender from viewing persons naked clearly established that a female officer observing a female violated the Fourth Amendment.  But the judge agreed that the law clearly established the search warrant for the house did not justify the agent's search of the inhabitant absent reasonable suspicion.

Officers Violated Fourth Amendment and Is Liable under State Law for Arresting Middle-School Students to Teach Them a Lesson

In Scott v. County of San Bernardino, published September 10, 2018, the 9th Circuit affirmed summary judgment granted to the plaintiffs, three middle-school students.  The three students, 12- and 13-year-old girls, went to school officials to talk about another student's bullying and threats toward them.  A school administrator asked one of the defendants, a deputy who was a school security officer, to come to the campus to talk to the girls and the girl they complained about.  He intended to mediate the conflict.  WIthin a few minutes, however, he decided that the girls were being disrespectful.  He decided to arrest them, to prove that he "wasn't playing around," "to prove a point" and "to make [them] mature a lot faster."  He and another deputy defendant handcuffed the girls.  The allege aggressor was released to her father on campus.  The others were driven in a police vehicle to  the sheriff's department, where they were interviewed and released to their parents.  No charges were filed.  At trial, the district court granted the plaintiffs summary judgment both on their 42 U.S.C. § 1983 claim and their state law false arrest claim.

The 9th Circuit agreed that the deputies were liable.  New Jersey v. TLO ruled that the Fourth Amendment protects students, subject to a "special needs" exception under which warrantless searches do not violate the Fourth Amendment if the actions are justified at their inception and reasonably related in scope to the circumstances that justified the actions.  The arrests violated both parts of the test.  The actions were not justified at their inception.  The deputies had no specific information any of the arrested girls had done anything.  Further, under the special needs exception, the officers' subjective motivation may be considered.  The deputies' stated reasons for the arrest did not provide justification for arrest.  Further, handcuffing and arresting middle-school girls was an unreasonable response to the school's need.  Because the law was clear that the deputies' arrest violated the Fourth Amendment, they were not entitled to qualified immunity.  Under state law, none of the statutes under which the deputies justified the arrest applied.  The district court therefore properly granted summary judgment on the state law false arrest ground as well.

Landowners Could Not Challenge Landslide Development Moratorium as Unconstitutional Taking where Moratorium Is Facially Constitutional and Administrative Remedies Have Not Been Exhausted

In Black v. City of Palos Verdes, published September 6, 2018, the Second District Court of Appeal, Division 1 affirmed the trial court's decision denying a petition for a writ of mandate and finding that the defendant city's moratorium on construction in a landslide area was not a regulatory taking.  The city had areas where ancient landslides were active.  A previous development moratorium ordinance that required property owners to engage in expensive private testing to establish that the area was stable (which would have been futile, since the city found the area was not stable) was found unconstitutional.  The city repealed the ordinance, and amended its moratorium to allow building in the landslide area provided that an exemption permit was approved by the city,  the project complied with the city code's mitigation provisions, and the owner submitted any studies the city required to demonstrate the development would not exacerbate the existing situation.  A group of landowners filed a petition for writ of mandamus and a complaint for inverse condemnation seeking to compel the city to take certain actions concerning development in the landslide area.  One landowner submitted an application for an exception to the moratorium before the suit was filed.  The record did not show what action was taken on the application.  The landowner settled with the city and was no longer a party to the suit.

The appellate court ruled that the trial court properly ruled against the landowners.  The landowners' facial attack against the moratorium failed, because it was not a regulation that went too far.  The landowners could not prevail on an as-applied challenge, because they had not exhausted the administrative remedies available by applying for an exception to the moratorium.  They failed to demonstrate that exhausting those remedies would be futile.  They could not rely on the previous litigation as precedent for futility, because the ordinance on which the previous case was based had been repealed and the moratorium amended.

While Police Department Did Not Retaliate against Fired Employee for Exercising First Amendment Rights, Requiring Her to Sign Agreement Not to Criticize City, Department, or Employees Was Unconstitutional Prior Restraint

In Barone v. City of Springfield, published September 5, 2018, the 9th Circuit Court of Appeals affirmed in part and reversed in part a defense summary judgment in this 42 U.S.C. § 1983 lawsuit.  A police department community service officer served as community liaison to the city's minority communities.  Members of the Latino community complained to her of racial profiling.  The officer became the subject of internal affairs investigations.  After the investigations began, the officer spoke at a community event, in uniform.  The department paid her to be present, and her presence on behalf of the police department was advertised.  At the event, she answered a question from the audience about increasing racial profiling complaints by stating she had heard such complaints.  A week later, the police chief placed her on administrative leave for alleged untruthfulness in the two internal affairs investigations.  The department eventually informed her she had to sign a "last chance agreement" to keep her job.  The agreement barred her from saying or writing anything negative about the city, the department, or the department's officers.  It permitted her to report complaints involving discrimination or profiling by the department.  She refused to sign the agreement, and was terminated.  She sued the department for First Amendment retaliation and imposing an unlawful prior restraint.

The 9th Circuit agreed with the district court that the defendants were entitled to summary judgment on the First Amendment retaliation claim.  Under the facts, the plaintiff spoke in her capacity as a public employee when she spoke at the community event.  Her speech was therefore not protected by the First Amendment.  The 9th Circuit reversed the district court's conclusion that the last chance agreement was not an unlawful prior restraint.  Applying the Pickering standards for limitations on public employee speech, a restriction on criticizing the city, the department, or the department's officers was overbroad, since it covered both speech as an employee and speech as a private citizen.  The speech involved a subject of public interest.  The burden shifted to the defendants to justify the restriction.  The department's interests in protecting the department from disrepute and preventing employee misconduct did not justify the broad restrictions.

Ordinances That Operate to Bar Homeless Individuals with No Access to Shelter from Sleeping on Public Property Violate Eighth Amendment

In Martin v. City of Boise, published September 4, 2018, the 9th Circuit Court of Appeals affirmed in part and reversed in part summary judgment in favor of the defendant city in an action brought by homeless individuals who had been convicted of or cited for violating the city's camping or disorderly conduct ordinances by sleeping outside on nights when they had no alternative shelter available.  The district court ruled that Heck v. Humphrey barred the plaintiffs' suits for retrospective relief, because none had appealed their convictions or raised the Eighth Amendment as a defense in their prosecutions.  It further ruled that the two plaintiffs who had not been convicted of their citations lacked standing to pursue prospective relief, because the city had amended its ordinances to permit sleeping outside when the homeless shelters in the city self-reported that they were full.

The 9th Circuit affirmed the Heck ruling concerning retrospective relief as to all plaintiffs except the two who were not convicted.  The majority held, however, that Heck did not bar prospective relief.  It also rejected the standing holding, since the shelters only had to self-report that they were full, and that self-reporting was not reliable.  On the merits, the 9th Circuit followed its earlier ruling in Jones v. City of Los Angeles, 444 F.3d 1118, 1138 (9th Cir. 2006), vacated, 505 F.3d 1006 (9th Cir. 2007), which was vacated due to a settlement of the underlying matter.  It held that the ordinances, to the extent they barred sleeping outside for those who had no alternative shelter, violated the Cruel and Unusual Punishments clause of the Eighth Amendment by criminalizing conduct that should not be criminalized.  The clause imposes substantive limitations on what may be made criminal and punished as such.  For the rare Eighth Amendment challenges to the state's power to criminalize particular behavior or status, the plaintiff need prove only prosecution, not conviction.  Just as the state may not criminalize being homeless, it may not criminalize conduct that is an unavoidable consequence of being homeless.  As long as there is no option of sleeping indoors, the government cannot criminalize indigent, homeless people for sleeping outdoors, on public property, on the false premise they had a choice in the matter.  That does not prevent the government from imposing time and place restrictions, or apply to those who choose not to take advantage of available public shelters.

A dissenting judge objected that Heck v. Humphrey, when it applied, should preclude both restrospective and prospective relief.

The California Public Records Act Does Not Compel Agencies to Create New Records

In Sander v. State Bar of California, published August 23, 2018, the First District Court of Appeal, Division 3 affirmed the trial court's decision upholding the California State Bar's denial of a California Public Records Act request for information from the bar admissions database for individually unidentifiable records for all applicants from 1972 to 2008 in such categories as race and ethnicity, law school, GPA, etc.  The petitioners proposed a number of protocols for rendering data anonymous, such as setting up a data enclave housing data stripped of identifiers that could be accessed only by select persons, recoding and binning, "k-anonymity," or mathematical standardizations.  The trial court denied disclosure on multiple grounds, including that the disclosure under any of the protocols requires the creation of a new record.

The appellate court agreed with this ground.  While the CPRA requires agencies to provide access to their existing records, it does not require them to create new records to satisfy a request.  Requiring the Bar to recode its existing data would require it to create new records.  Public agencies can be required to gather and segregate disclosable electronic data from nondisclosable exempt information, and perform data compilation, extraction, or computer programming if necessary to produce a copy of the record.  But they cannot be required to undertake extensive manipulation or restructuring of the substantive content of a record such as petitioners proposed here.  It cannot be required to change the substantive content of an existing record, or replace existing data with new data.

Detective Violated Clearly-Established Law by Failing to Reveal to Prosecutor That Police Officer Sister of Key Witness Believed Sister to Be Liar

In Mellen v. Winn, published August 17, 2018, the 9th Circuit Court of Appeals reversed summary judgment in favor of the defendant police detective.  When the detective was the lead investigator of a murder, a key witness told the detective that the plaintiff had confessed to involvement in the murder.  One of the detective's fellow police officers was a sister of the key witness.  There was evidence (which the detective disputed) that the officer told the detective her sister was the biggest liar she had ever met in her life, and that she never believed anything the sister said.  The detective did not inquire further into the basis for the officer's opinion about her sister.  The detective did not communicate these remarks to the prosecutor.  At the criminal trial, there was extensive evidence that the key witness was not credible.  The jury nevertheless convicted the plaintiff.  She was sentenced to life without possibility of parole.  She served almost two decades of her sentence until the officer's account of her sister's credibility came to light, and evidence was uncovered that exonerated the plaintiff.  She sued the detective for violating her constitutional right to due process by failing to comply with the detective's obligation under Brady v. Maryland, 373 U.S. 83 (1963), and Giglio v. United States, 405 U.S. 150 (1972) not to withhold impeachment evidence.  The district court granted the detective summary judgment based on qualified immunity.

The 9th Circuit held that, as a matter of law, the detective withheld material impeachment evidence under Brady and Giglio.  Since the key witness's testimony was the only evidence that linked the plaintiff to the murder, and the witness's testimony that the plaintiff confessed to the murder was so powerful, evidence that a police officer sibling considered the witness an untrustworthy liar was material.  Even though there was other evidence at the criminal trial putting the witness's credibility at issue, that did not relieve the detective of the duty to turn over all material impeachment evidence.  The appellate court found a triable issue of fact on whether the detective was deliberately indifferent to her duties under Brady/Giglio.  Her failure to investigate further, evidence the detective embellished the witness's written statement by adding details not described in the witness's written statement, and other actions demonstrating arguable overzealousness raised a jury issue on whether the detective was deliberately indifferent.  The 9th Circuit also held that the district court abused its discretion in excluding the opinion of the plaintiff's police practices expert that a reasonable officer would have believed the evidence relevant.  The evidence did not go to the legal conclusion of whether the detective acted reasonably; it went to the norms of police practice.

Appellant Is Not Successful Party for Purposes of Private Attorney General Fees if Published Opinion Merely Affirms Trial Court's and Agency's Relief

In Hall v. DMV, published August 15, 2018, the Fourth District Court of Appeal, Division 1 affirmed a trial court order denying a petitioner's motion for attorney fees under the private attorney general fee statute, Code of Civil Procedure section 1021.5.  The petitioner was arrested for a suspected DUI.  Because he refused to provide a blood test, his driver's license was seized.  The petitioner challenged the seizure in a DMV hearing.  At the hearing, he objected to a "officer's statement" that had a discrepancy as to the date of arrest and the date petitioner was admonished about the consequences of refusing a blood test.  The hearing officer admitted the statement despite the discrepancy, ruled the discrepancy a clerical error, and sustained revocation of the license.  The petitioner sought a writ of mandate in superior court, on the ground that the officer's statement was inadmissible.  Before the hearing, the court allowed the petitioner to amend the petition based on a charge that the hearing officer had accepted bribes in other cases.  After the hearing officer pleaded guilty, the petitioner contended that lack of an impartial hearing officer violated his due process rights.  The trial court granted the petition on due process grounds, but did not grant the petitioner his requested relief of reinstating his license.  Instead, it remanded the matter to the DMV for a new hearing before an impartial hearing officer.   The DMV set the matter for a new de novo hearing.  Before the hearing, the petitioner appealed the ruling.  In a published decision, the Court of Appeal agreed that the petitioner had been deprived of due process, but rejected the requested relief and held that the trial court correctly ordered a new administrative hearing.  The appellate court awarded the petitioner costs, but did not state the basis for doing so.  The petitioner then sought over $145,000 in fees in the section 1021.5 motion.  The trial court denied the motion on the ground that the petitioner was not successful.

The appellate court agreed.  A section 1021.5 fee award requires that the petitioner be "successful."  A petitioner is successful if he achieves his primary litigation goal.  Here, the petitioner did not achieve his primary goal:  license reinstatement.  Instead, the result before the appeal was the same as the one afterward:  He was offered a new administrative hearing, which he did not want.  That the petitioner obtained a published decision that established an important right did not warrant fees if he was not successful.  He was awarded costs in the previous appeal because of the interests of justice, not because he was successful.  Further, he could not meet section 1021.5's test that the fee award is appropriate in light of the necessity and financial burden of private enforcement.  He started the petition before the basis for the fee motion (the charge that the hearing officer took bribes) appeared, and his attorney incurred approximately as much in fees on the petition before the amendment as afterward.  Further, once the trial court ruled that the petitioner was entitled to a new hearing, the litigation continued solely to vindicate the petitioner's personal goal of getting his license back.

Pursuit Immunity Does Not Require 100% Certification by Agency's Officers

In Ramirez v. City of Gardena, published August 13, 2018, the California Supreme Court affirmed summary judgment in favor of the defendant city in a wrongful death suit arising out of a police pursuit.  In doing so, it resolved a split in authority between the lower court's decision and the one in Morgan v. Beaumont Police Dept. (2016) 246 Cal.App.4th 144.  Vehicle Code section 17001 imposes liability on public entities for negligent or wrongful acts or omissions by public employees operating motor vehicles in the scope of their employment.  Vehicle Code section 17004.7 creates an immunity to that liability for injuries occurring during police pursuits if the entity adopts and implements a vehicle pursuit policy that meets the requirements of that statute.  Subdivision (b)(2) of section 17004.7 requires that promulgation of the policy include " a requirement that all peace officers of the public agency certify in writing that they have received, read, and understand the policy."  The subdivision further provides that failure of an individual officer to sign a certification "shall not be used to impose liability" on an officer or entity.  The question was whether the statute required every officer in a department to certify that he or she had received, read, and understood the policy.

The Supreme Court agreed with the lower court that the answer was no.  It interpreted the statutory language to mean that the policy must include a requirement that all of the officers certify in writing, not that the immunity will not apply if a single officer does not so certify.  If the Legislature had required otherwise, it would have said so.  The alternative interpretation would place a heavy burden on large police agencies by eliminating immunity, despite conscientiously implementing the policy, if a single officer refused or failed to certify receipt, reading, and understanding.  The court did not rely on the "shall not be used" language, since that appears to relate to imposing liability rather than on the existence of immunity.  The court disapproved the Morgan decision to the extent it was inconsistent with this decision.