Government Liability Update

Release Signed Before Bicycle Race Did Not Bar City's Liability for Dangerous Road Condition

In Whitehead v. City of Oakland, published May 1, 2025, the California Supreme Court reversed summary judgment for the defendant city, and the court of appeal decision upholding summary judgment.  The plaintiff was participating in a group training ride in preparation for a fundraising ride.  Before his training ride, the plaintiff signed a release form.  The form included a provision discharging any public entities providing facilities for the ride, from any liability for negligence.  The form specifically identified as a potential risk associated with the event "using public streets and facilities where hazards such as broken pavement and road debris may exist . . . "  During the training ride, the plaintiff's front tire went down sharply into a pothole, and the plaintiff flipped over the front of the bike and hit the pavement, suffering a traumatic brain injury.  The plaintiff sued the city that owned the road under Government Code section 835, alleging that the roadway was a dangerous condition of public property.  The trial court granted summary judgment for the city, holding that the release was valid, enforceable, and barred the suit.  The appellate court affirmed.

The Supreme Court ruled that the release was invalid under Civil Code section 1668.  Section 1668 renders unlawful any contract that seeks to exempt anyone from responsibility for violation of the law, whether willful or negligent.  Under the statute, an agreement to exculpate a party for future violations of a statutory duty designed to protect public safety is against the policy of the law and not enforceable.  Government Code section 835 imposes a statutory duty upon public entities to maintain their roadways in a reasonably safe condition for travel by the public.  Therefore, the release could not be applied to exempt public entities from liability under section 835 for failing to maintain its roadways in a safe condition.

The Hot Pursuit Exception Permitted Officers Chasing Suspect Fleeing Traffic Stop to Enter Home without Warrant

In Newman v. Underhill, published April 23, 2025, the 9th Circuit Court of Appeals affirmed summary judgment for the defendant deputies.  A suspect in a truck failed to stop for one of the defendant deputy's traffic stop.  This was a felony.  The deputy chased the suspect's truck.  The truck stopped near the plaintiff's home.  The suspect exited the truck and fled. The deputy followed on foot.  He lost track of the suspect near the rear of the plaintiff's house.  The deputy waited for backup.  A second defendant deputy arrived two minutes later.  The deputies searched the house's backyard while deputies in a helicopter searched the house for heat signatures.  The deputies saw no indication that the suspect had left the backyard.  The helicopter found heat coming from the house but did not know what was emitting it.  The deputies discovered the back door of the house slightly ajar.  Seven minutes after the suspect fled, the deputies began announcing their presence and ordering anyone inside to exit.  They did so for two minutes.  They heard a voice inside.  A third defendant deputy arrived.  The three entered the house.  They encountered and argued with the plaintiff, a quadriplegic in a wheelchair.  The plaintiff told the deputies that his roommate drove a truck the make and model of the suspect's truck.  After a few minutes of discussion, the plaintiff gave the deputies permission to search another room of the house.  The suspect, the plaintiff's roommate, was hiding there.  The plaintiff sued the officers for an unreasonable search in violation of the 4th Amendment.  The district court granted the officers summary judgment.

The 9th Circuit found that the officers did not violate the plaintiff's 4th Amendment rights.  Under the hot pursuit doctrine, the hot pursuit of a fleeing suspect can make a warrantless search of a residence objectively reasonable.  The doctrine requires probable cause to search the home and pursuit of a fleeing suspect.  Here, there was probable cause.  The facts and circumstances before the officers were sufficient to warrant a person of reasonable caution to believe that the suspect would be found in the house.  The doctrine also requires that the officers were in immediate and continuous pursuit of a suspect from the scene of the crime at the moment they made entry.  Other relevant considerations include the gravity of the underlying offense for which the arrest is being made, and whether the officers encroached on the property of a person who did not create the exigent circumstances and was completely unrelated to the suspect and his crimes.  Here, the suspect was suspected of committing a felony.  The immediacy requirement was met because the first deputy immediately pursued the suspect when he fled.  The continuity requirement was met because only nine minutes passed between the first deputy losing track of the suspect and the entry; and because during that time interval the deputy was actively working to find and apprehend the suspect.

Existence of Fundamental Rights Protected by Substantive Due Process Is Not Determined by Applying the Qualified Immunity Analysis

In Regino v. Staley, published April 4, 2025, the 9th Circuit Court of Appeals reversed dismissal of a 42 U.S.C. section 1983 suit at the pleading stage.  A school district had a policy that prohibited conduct such as refusing to address a student by a name and pronouns consistent with the student’s gender identity and revealing a student’s transgender status to those who do not have a legitimate need for the information without the student’s consent.  One of the plaintiff’s two children, who was 11 and biologically female told a school counselor that the child felt like a boy.  The child stated that the child would prefer male pronouns and that the child did not want the mother to know.  The counselor arranged for school personnel to refer to the child by a male name and male pronouns.  The counselor advised the child about LGBTQ+ support, top surgery, and breast binding.  When the child told the counselor the child wanted  to tell the mother about the new gender identity, the counselor encouraged the child to speak with other family members first.  The child spoke to the child’s grandmother, who then told the mother.  The mother told the child that the mother supported the child in her decisions if that is what the child wanted. The mother expressed to the school personnel her concern that she had not been informed that the personnel were treating her child as a boy; and that if she had known she would not have allowed them to “socially transition her daughter without first seeking guidance from a mental health professional.”  Later, the child’s feelings about being a boy subsided.  At the time the complaint was filed, the child identified as a girl and was in therapy for depression and anxiety.  Meanwhile, the mother’s other child allegedly began exhibiting traits making her more likely to identify as a boy as she gets older.  The mother filed suit seeking a declaration invalidating the policy as violating the mother’s constitutional rights and an injunction against the policy’s enforcement.  She asserted facial and as-applied procedural and substantive due process and First Amendment claims.  The district court dismissed the action, ruling that the mother had failed to allege the existence of a fundamental right that was clearly established in existing precedent.  It denied leave to amend as futile.

The 9th Circuit ruled that the district court erred in dismissing the substantive due process claim, because the district court failed to conduct the proper analysis in determining whether the mother adequately alleged the existence of a cognizable fundamental right protected by substantive due process.  Parents have a broad fundamental right to make decisions concerning the care, custody, and control of their children, but those rights are confined by the interests of the State.  The district court erred by borrowing the standard for qualified immunity and determining whether the right had been clearly established and placed beyond debate by existing precedent.  The qualified immunity framework does not govern the merits of substantive due process claims.  Instead, the inquiry is whether an asserted fundamental right is objectively deeply rooted in the Nation’s history and tradition, and implicit in the concept of ordered liberty, such that neither liberty nor justice would exist if it was sacrificed.  While courts must be reluctant to expand the concept of substantive due process and exercise the utmost care before breaking new ground, the right does not have to be clearly established by precedent.  The appellate court declined to undertake the proper analysis itself, because the parties had failed to consistently articulate the scope of their respective claims and defenses.  The substantive due process analysis must begin with a careful description of the asserted fundamental right.  The plaintiff had provided shifting definition of the right, and the defendants had failed to consistently identify the district’s justification for its policy.  The district court had no opportunity to address the parties’ revamped arguments.  The 9th Circuit therefore remanded the issue to the district court.  The court will have to determine whether the plaintiff’s asserted right meets the criteria for a fundamental right and examine the nuances of the district’s policy, considering precedents on parents’ rights and the state’s interests in limiting those rights.  Regarding the procedural due process claim, the district court erred in determining a lack of a fundamental right defeated that claim.  Procedural due process does not merely protect fundamental rights; it protects all liberty interests derived from state law or from the Due Process Clause itself.  The 9th Circuit remanded that issue as well.

Officers Did Not Discriminate against Deaf DUI Suspect by Not Providing Her with Sign Language Interpreter

In Mayfield v. City of Mesa, published March 24, 2025, the 9th Circuit Court of Appeals affirmed the dismissal of a lawsuit under Title 11 of the American with Disabilities Act and the Rehabilitation Act.  While the plaintiff, who is deaf, was driving home at night, a police officer observed her weaving in traffic and pulled her over.  During the traffic stop, she requested an American Sign Language interpreter.  Based on the footage from officer body cams, the officer and another officer communicated with the plaintiff using a combination of notes typed on cellphones, notes on a notepad, lip reading, and gestures.  The plaintiff was given and able to complete sobriety tests, but did not pass those tests.  She was taken to a DUI facility for a blood test.  She requested an American Sign Language interpreter but was told that none was available.  The plaintiff was charged with driving under the influence, but these charges were dropped when the plaintiff pleaded guilty to reckless driving.  The plaintiff sued the city, alleging the officers discriminated against her by failing to provide a reasonable accommodation for her disability by providing either an in-person ASL interpreter or a video remote interpreting service after she was pulled over.  The district court granted a motion to dismiss the lawsuit, ruling that the plaintiff's claims were barred by Heck v. Humphrey and that alternatively plaintiff failed to state a claim under the ADA or RA.

The 9th Circuit disagreed about Heck v. Humphrey.  Heck, which applies to ADA/RA claims, a plaintiff's civil claims challenging government conduct in connection with arrest and prosecution may not proceed if a judgment in her favor would necessarily imply the invalidity of her conviction or sentence.  Here, a judgment in plaintiff's favor on whether the officers accommodated her in testing for a DUI would not invalidate her conviction for reckless driving, which was based on the plaintiff weaving in traffic before the traffic stop.  But the 9th Circuit agreed that the plaintiff failed to state a claim for failure to accommodate.  A claim under Title II of the ADA may arise where police fail to reasonably accommodate a plaintiff's disability in the course of investigation or arrest, causing the plaintiff to suffer greater injury or indignity in the process than other arrestees.  There is no per se obligation to provide an on-site interpreter for a deaf person every time one is requested.  The test is whether the person has received an auxiliary aid sufficient to prevent any real hindrance in her ability to exchange information.  In the context of arrests, the court must also consider whether any exigent circumstances would render a proposed accommodation impracticable.  Here, the body cam footage establishes that the plaintiff's understanding of the initial officer's instructions was sufficient to enable her to provide the information requested and complete the field sobriety tests, and thus communicate with each other in all material aspects.  Likewise, in the DUI processing facility, the plaintiff was able to effectively communicate in all material aspects.  Traffic stops, particularly for suspected DUIs, present exigent circumstances that limit the range of what would constitute a reasonable modification of police procedures.  The safety concerns of a roadside traffic stop, the need to promptly determine a motorist's ability to drive, and the need to collect accurate test results before evidence dissipates all warrant acting without unnecessary delay.  Because the bodycam footage would preclude the plaintiff from amending her complaint to overcome such evidence, the court properly dismissed the complaint without leave to amend.

Officers Did Not Discriminate against Deaf DUI Suspect by Not Providing Her with Sign Language Interpreter

In Mayfield v. City of Mesa, published March 24, 2025, the 9th Circuit Court of Appeals affirmed the dismissal of a lawsuit under Title 11 of the American with Disabilities Act and the Rehabilitation Act.  While the plaintiff, who is deaf, was driving home at night, a police officer observed her weaving in traffic and pulled her over.  During the traffic stop, she requested an American Sign Language interpreter.  Based on the footage from officer body cams, the officer and another officer communicated with the plaintiff using a combination of notes typed on cellphones, notes on a notepad, lip reading, and gestures.  The plaintiff was given and able to complete sobriety tests, but did not pass those tests.  She was taken to a DUI facility for a blood test.  She requested an American Sign Language interpreter but was told that none was available.  The plaintiff was charged with driving under the influence, but these charges were dropped when the plaintiff pleaded guilty to reckless driving.  The plaintiff sued the city, alleging the officers discriminated against her by failing to provide a reasonable accommodation for her disability by providing either an in-person ASL interpreter or a video remote interpreting service after she was pulled over.  The district court granted a motion to dismiss the lawsuit, ruling that the plaintiff's claims were barred by Heck v. Humphrey and that alternatively plaintiff failed to state a claim under the ADA or RA.

The 9th Circuit disagreed about Heck v. Humphrey.  Heck, which applies to ADA/RA claims, a plaintiff's civil claims challenging government conduct in connection with arrest and prosecution may not proceed if a judgment in her favor would necessarily imply the invalidity of her conviction or sentence.  Here, a judgment in plaintiff's favor on whether the officers accommodated her in testing for a DUI would not invalidate her conviction for reckless driving, which was based on the plaintiff weaving in traffic before the traffic stop.  But the 9th Circuit agreed that the plaintiff failed to state a claim for failure to accommodate.  A claim under Title II of the ADA may arise where police fail to reasonably accommodate a plaintiff's disability in the course of investigation or arrest, causing the plaintiff to suffer greater injury or indignity in the process than other arrestees.  There is no per se obligation to provide an on-site interpreter for a deaf person every time one is requested.  The test is whether the person has received an auxiliary aid sufficient to prevent any real hindrance in her ability to exchange information.  In the context of arrests, the court must also consider whether any exigent circumstances would render a proposed accommodation impracticable.  Here, the body cam footage establishes that the plaintiff's understanding of the initial officer's instructions was sufficient to enable her to provide the information requested and complete the field sobriety tests, and thus communicate with each other in all material aspects.  Likewise, in the DUI processing facility, the plaintiff was able to effectively communicate in all material aspects.  Traffic stops, particularly for suspected DUIs, present exigent circumstances that limit the range of what would constitute a reasonable modification of police procedures.  The safety concerns of a roadside traffic stop, the need to promptly determine a motorist's ability to drive, and the need to collect accurate test results before evidence dissipates all warrant acting without unnecessary delay.  Because the bodycam footage would preclude the plaintiff from amending her complaint to overcome such evidence, the court properly dismissed the complaint without leave to amend.

E-mail from Attorney Representing Public Agency to Agency's Employee Was Covered by Attorney-Client Privilege

In Johnson v. California Department of Transportation, published March 17, 2025, the Third District Court of Appeal affirmed a trial court order disqualifying a plaintiff's attorney and experts.  The plaintiff, an employee of the defendant agency, sued the agency for claims arising out of the employment.  While the suit was pending, an attorney representing the agency in the action sent an e-mail to the plaintiff's supervisor.  The supervisor was not a named party in the litigation.  The e-mail stated that it was a privileged attorney-client communication, and/or was covered by the attorney work-product doctrine.  The e-mail requested that if the reader was not the intended recipient, the reader contact the send and destroy all copies of the original message.  The  supervisor took a photo of the e-mail, and sent it to the plaintiff.  The plaintiff gave it to his attorney.  The plaintiff's attorney e-mailed the agency's attorney and advised him of the image of the e-mail.  The plaintiff's attorney asserted the e-mail was intentionally disclosed, and so any privilege was waived.  The agency's attorney asserted the e-mail was privileged, and requested that the plaintiff and his attorney delete or destroy the e-mail.  The agency's attorney also asserted that the supervisor did not have the authority to waive attorney-client privilege on behalf of the agency.  During meeting and conferring, the plaintiff's attorney wrote to the defense attorney that the e-mail would be provided to the plaintiff's retained experts and would be offered into evidence at trial.  The plaintiff's attorney shared the e-mail with the plaintiff's experts.  The agency moved for a protective order.  The trial court determined that the e-mail was privileged, and that the agency had not waived the privilege.  It prohibited the plaintiff and his attorney from any further dissemination of the e-mail, and ordered them to destroy or return all copies and file a compliance declaration stating they had done so.  The plaintiff and attorney eventually filed declarations stating they had complied with the order, but also stating that the attorney had discussed the e-mail with several individuals on an ongoing basis as of the declaration's date.  The attorney later asserted that the protective order did not bar verbal communication about the e-mail and its contents, and that the parties could testify about the e-mail.  The agency moved to disqualify the plaintiff's attorney and the experts.  The trial court concluded that because the plaintiff's counsel had used the e-mail as a component of the case he was preparing against the agency, his continued participation would cause prejudice.  It granted the motion.

The appellate court concluded that the trial court's findings were supported by substantial evidence and the law.  Public entities can claim the attorney-client privilege.  Attorney communications with agents and employees of public entities may be covered by the privilege.  Whether the attorney-client privilege applies to a communication is a question of fact if the evidence conflicts.  The trial court concluded that the e-mail was privileged because the sender was an attorney representing the agency, the e-mail involved legal advice or information, and the nature of the relationship between the attorney and the supervisor was that of an agency attorney obtaining information relevant to litigation from an agency employee. Substantial evidence supports these determinations.  The e-mail stated it was confidential.  And the only relationship between the attorney and the supervisors stemmed from the attorney's need to defend his client in litigation brought by one of the supervisor's supervisees.  The plaintiff failed to rebut the showing of privilege.  Lower-level employees may be covered by the privilege.  The supervisor's disclosure did not waive the privilege.  The privilege was held by the agency, as represented by its management.  The supervisor did not fall within this group.  There is no evidence the agency authorized the supervisor to disclose the e-mail.  The plaintiff failed to show waiver through delay in asserting the privilege or seeking the protective order.  Based on the attorney's conduct in continuing to use the e-mail as part of the case, disqualification was appropriate.

Qualified Immunity for Academic 1st Amendment Retaliation Claim Was Not Amenable to Resolution at Pleadings Stage

In Jensen v. Brown, published March 10, 2025, the 9th Circuit Court of Appeals reversed the dismissal of a 42 U.S.C. section 1983 lawsuit without leave to amend.  The plaintiff is a mathematics professor at a state community college.  The board of regents for the state college system adopted a policy that lowered the academic level of certain math classes.  The plaintiff objected to this policy.  The dean of sciences at the college facilitated a "math summit" to discuss the policy's implementation "with the community."  During a question-and-answer session, the plaintiff attempted to comment on the policy.  The dean cut him off.  The plaintiff went to his office and created a handout that discussed his concerns with the policy.  During a break in the summit's programming, he went room to room distributing the handout to the participants.  The dean directed him to stop.  She accused him of disobeying her and being a "bully," stated his conduct was "disruptive," and warned him that he had "made an error by defying her."  A week later, she sent the plaintiff a letter of notice of reprimand, along with a proposed letter of reprimand accusing the plaintiff of "insubordination" at the event.  An official letter of reprimand was then placed in the plaintiff's personnel file.  The plaintiff then sent an e-mail to the college's faculty complaining about the policy.  About a week later, the plaintiff, under pressure from the dean, resigned as chair and member of a tenure committee.  The dean raised issues with the professor's syllabus policies.  That dean and another dean rated the plaintiff unsatisfactory during two annual performance evaluations.  The evaluations triggered a disciplinary termination hearing, although the plaintiff does not allege he was terminated or disciplined based on the hearing.  The plaintiff sued various college and college system administrators alleging (1) 1st Amendment retaliation, (2) procedural due process violations, and (3) equal protection violations.  The administrators moved to dismiss the complaint based on sovereign immunity and qualified immunity.  The district court dismissed the claims without leave to amend.

The 9th Circuit ruled the district court erred in dismissing the plaintiff's personal capacity 1st amendment retaliation claim against the administrators.  Applying the Pickering inquiry for a public employee's 1st Amendment retaliation claim, the court ruled the plaintiff's criticism of the changes in the mathematics curriculum addressed a matter of public concern.  The scope of the handout distribution was instructive but not determinative of the public concern issue.  Under 9th Circuit precedent, the Garcetti v. Ceballos rule that speech according to public duties is not protected by the 1st Amendment does not apply to teaching and academic writing.  Because the plaintiff's speech was focused on the contents of the school's curriculum, it relates to scholarship and teaching and so does not come within the Garcetti rule.  The plaintiff alleged facts that plausibly linked alleged retaliatory acts to his speech.  Although the Pickering test balances the employee's right to speak against the state's interests as an employer, unless the facts alleged in the complaint decisively indicate that the state's interest outweighs the plaintiff, the Pickering balancing test is not amenable to resolution on a motion to dismiss, and is generally deferred at least to the summary judgment stage.  Since the facts alleged do not show an “actual, material and substantial disruption” or “reasonable predictions of disruption” to support the
Administrators’ claim that the state’s interest outweighs the plaintiff's, this inquiry could not be resolved at the pleadings stage.  Since at the time of the events, 9th Circuit authority put a reasonable official on notice that the plaintiff's speech involved an issue of general public interest, need not be aired to the general public, and did not fall outside 1st Amendment protection simply because it was made according to official duties, and the balancing test could not be resolved at the pleading stage, the question of whether the administrators violated clearly-established law also could not be resolved at that stage.  The district court therefore erred in dismissing the claim based on qualified immunity.  The official capacity 1st Amendment claim was not barred by sovereign immunity, because it sought prospective injunctive relief.  Although the complaint failed to allege facts showing an interest protected by procedural due process, or an equal protection claim, the district court erred by denying leave to amend those claims without providing a reason for doing so.

Prison Guards' Alleged Retaliation against Inmate for Complaining about another Prisoner Did Not Violate Clearly-Established Law

In Bird v. Dizurenda, published March 13, 2025, the 9th Circuit Court of Appeals reversed the district court's denial of summary judgment to defendant prison guards based on qualified immunity.  The plaintiff inmate approached the officer in charge of his cell unit and requested that he be moved from his cell at once because of issues with his current cellmate that, he said, if left unaddressed, would lead to a fight.  In response, the officer called for assistance, and two more guards appeared.  The plaintiff explained the situation to them, and one guard allegedly said, "Fight him or fight me."  The guards instructed the plaintiff to gather his belongings in preparation for being moved.  As he did so, the guard he initially spoke to tried to close the cell door and announced over the in-cell speaker that the plaintiff was staying in that cell.  The plaintiff blocked the door's closing by pushing a plastic tub in the way, and responded that he was not.  Two of the guards then reentered the cell, ordered the plaintiff to push his property back into the cell, and directed him to a prison classroom.  The guards then allegedly "thrashed the cell" and confiscated items of the plaintiff's property, and did not issue him a form to appeal the confiscation of his property.  Guards later transferred the plaintiff to a new cell that day.  The prison denied the plaintiff's grievances.  He then filed a complaint against the guards and other prison administrators in federal court, alleging retaliation.  The district court denied the prison officials motion for summary judgment on the retaliation claim, holding they were not entitled to qualified immunity.

The 9th Circuit found qualified immunity.  In the prison context, prohibition against retaliatory punishment may violated clearly-established law, implicating the prisoner's 1st Amendment right to petition prison grievances and to seek redress for prison injustices, where a state actor took some adverse action against an inmate because of that inmate's protected conduct.  The plaintiff's request for a cell transfer based on concerns with his cellmate does not constitute "protected conduct" under clearly established law.  While retaliation for complaints against prison officials would be protected conduct, retaliation against a prisoner because of a complaint about another prisoner is a significant distinction from prior caselaw. 

Officer's Unreasonable Mistake as to Whether Arrestee Requires Medical Care Not Subject to Qualified Immunity

In D'Braunstein v. California Highway Patrol, published March 12, 2025, a divided panel of the 9th Circuit Court of Appeals reversed summary judgment for the defendant officer.  The officer arrived at the scene of a single-vehicle auto accident, in which the plaintiff crashed his car into a concrete wall along a freeway onramp.  The plaintiff was standing next to the car.  The plaintiff displayed symptoms of disorientation and poor balance.  He did not smell of alcohol, and passed a breathalyzer test, but could not perform field sobriety tests.  The officer decided the plaintiff was under the influence of drugs.  She arrested the plaintiff and took him to jail.  The jail nurse denied the plaintiff admission to the jail and directed he be taken to a hospital. The officer drove the plaintiff to a hospital, without using her siren or flashing lights.  The plaintiff arrived at the hospital over three and a half hours after the officer first encountered him.  The plaintiff was diagnosed with a stroke, and suffered incapacitating brain damage.  There was conflicting evidence of whether earlier treatment would have mitigated his stroke symptoms.  The plaintiff sued the officer, alleging deprivation of medical care.  The district court granted summary judgment, finding that the constitutional violation was not clearly established and the officer was entitled to qualified immunity.

The panel majority disagreed.  Under both the 4th Amendment, which applies to arrests, and the 14th Amendment, which applies to pretrial detainees, the question is whether the officer's provision or deprivation of medical care was objectively unreasonable.  Here, construing the facts in the light most favorable to the plaintiff, a reasonable jury could find that the officer's failure to summon prompt medical treatment for the plaintiff was objectively unreasonable, and that the officer acted with reckless disregard for the plaintiff's safety, given the serious nature of the accident and the plaintiff's symptoms.  The officer's subjective belief that the suspect was on drugs does not change matters, considering the plaintiff had emerged from a violent car crash and was exhibiting physical and cognitive abnormalities.  The majority further ruled that it is clearly established that officers must seek to provide an injured detainee or arrestee with objectively reasonable medical care in the face of medical necessity, and may not act with objective deliberate indifference to such a medical need.  Case law further established this duty is not limited to situations where the officer's conduct causes the injury warranting medical attention.  The majority rejected the argument that there was no case law that would have put the officer on notice in the specific circumstances she encountered of the duty to summon prompt medical care.  Although an officer may be entitled to qualified immunity for a reasonable mistake, if the law is otherwise clearly established, an officer is not entitled to qualified immunity for a mistake of fact or judgment that is itself unreasonable.  Although specificity is required to clearly establish the law, a past case dealing with strokes or auto accident victims is not necessary.

A dissenting judge opined that the officer was entitled to qualified immunity, because the existing law did not place beyond debate that the officer, who was not a medical professional, was violating the plaintiff's constitutional rights by perceiving he was under the influence of drugs rather than injured.

Pre-Verdict JMOL Motion Based on Argument of Reasonable Force Did Not Waive Post-Verdict JMOL Motion Arguing Qualified Immunity, Where Factual Arguments Were the Same and There Was Earlier MSJ on Qualified Immunity

In Estate of Najera-Aguirre v. City of Riverside, published March 11, 2025, the 9th Circuit affirmed a judgment against a police officer for use of excessive force entered after a jury trial, and the district court's denial of judgment as a matter of law.  The defendant police officer arrived at the scene after receiving a report of someone destroying property with a bat-like object.  The officer commanded the decedent to drop the bat he was holding.  The decedent refused and walked toward the officer.  When the decedent was 10-15 feet from the officer, the officer pepper-sprayed the decedent.  The pepper spray blew away, and was ineffective.  The decedent turned toward the officer, still holding the bat.  They stood face-to-face, still 10-15 feet apart.  Without giving a warning, the officer pointed his gun at the decedent and fired six shots in two volleys.  The decedent collapsed face down.  His body was approximately 10 feet from where the officer was standing.  An autopsy suggested the decedent was turned away, with his back to the officer when the fatal bullets hit.  The decedent's children sued the officer.  The district court denied summary judgment based on qualified immunity, which the 9th Circuit affirmed in a published decision.  A jury found for the plaintiffs and awarded $10 million in damages.  The court denied a pre-verdict motion for judgment as a matter of law based on lack of excessive force.  After judgment, the officer renewed his motion and added an argument he was entitled to qualified immunity.  The district court denied this motion.  The officer appealed that decision.

The 9th Circuit ruled that the officer had preserved his qualified immunity argument.  Although he did not raise qualified immunity in his pre-verdict motion, both were based on the same underlying factual arguments.  Further, he had previously raised the legal argument of whether he violated clearly-established law in his summary judgment motion.  The court then ruled that qualified immunity was properly denied.  Viewing the evidence in the light most favorable to the plaintiffs, and drawing all reasonable inferences in their favor, the officer used deadly force on a suspect who did not pose a threat.  That violated clearly-established law.