Government Liability Update

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. 

Agent Not Entitled to Qualified Immunity for Allegedly Killing Teenager without Provocation

In Rodriguez v. Swartz, published August 7, 2018, the 9th Circuit affirmed denial of a motion to dismiss a Bivens action based on qualified immunity.  The operative complaint that the decedent, a 16-year-old boy, was peacefully walking down a street in Nogales, Mexico that parallels the U.S.-Mexico border when the defendant, a U.S. Border Patrol Agent, fired multiple bullets across the border.  Approximately 10 bullets struck the decedent, mostly in the back.

The panel ruled that the agent was not entitled to qualified immunity to the allegation that he violated the decedent's rights under the Fourth Amendment.  The decedent had a Fourth Amendment right to be free from objectively unreasonable use of force by an American Agent on American soil, even though the decedent was a Mexican citizen on Mexican soil.  An alleged shooting of a person without provocation or threat is an objectively unreasonable use of force that violates the Fourth Amendment.  Use of deadly force is unreasonable unless there are strong countervailing governmental interests.  There is no governmental interest in shooting a person who is not suspected of a crime, who is not fleeing or resisting arrest, and who is not a threat to anyone.  The decedent's citizenship and ties to the United States (his grandparents were legal residents of the U.S.) are irrelevant to the qualified immunity analysis.  The question is whether it was clearly established that it was unconstitutional for an officer on American soil to use deadly force without justification on a person of unknown nationality on the other side of the border.  Because the unjustified killing obviously violated the decedent's Fourth Amendment rights, a case on "all fours" is not necessary to clearly establish the law on the subject.  Further, a Fifth Amendment claim may exist, because the alleged conduct shocked the conscience.  

The panel went on to rule (with a dissent) that a Bivens claim existed. 

The panel emphasized that the case was based only on the allegations in the complaint, and had not yet been proven.

Field-Trip Immunity Does Not Immunize Community College from Liability for Dangerous Condition of Property That Injures Member of Visiting Athletic Team

In Anselmo v. Grossmont-Cuyamaca Community College District, published August 3, 2018, the Fourth District Court of Appeal, Division 1 reversed  dismissal of the plaintiff's lawsuit on demurrer.  The plaintiff was a member of a community college women's volleyball team.  The team traveled to the defendant district's community college's campus to participate in an intercollegiate beach volleyball tournament.  The plaintiff alleged she was injured when she dove into the sand on the volleyball court and her knee hit a rock.  She sued the district for maintaining a dangerous condition of public property.  The trial court sustained the district's demurrer based on the field trips and excursions immunity provided to community colleges by title 5, section 55220 of the California Code of Regulations.

The appellate court ruled that the immunity does not apply to an injury suffered by a member of a visiting team during an intercollegiate athletic event.  The immunity protected the plaintiff's college from liability for operating the excursion that brought the plaintiff to the defendant's campus, but it did not protect the defendant from allegedly violating its duty not to increase the risk inherent in the sport by creating a dangerous condition of public property.  Otherwise, the district could be held liable to a student of the district for a dangerous condition, but could not be held liable to a visiting athlete injured by the same condition.

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.

School Board's Policy of Opening Meetings with Prayer Violates Establishment Clause

In Freedom From Religion Foundation, Inc. v. Chino Valley Unified School District Board of Education, published July 25, 2018, the 9th Circuit affirmed the district court's grant of summary judgment and injunctive relief against the defendant school board.  The board instituted a policy of beginning each meeting with a prayer.  A rotating set of presenters, from a list, delivered the invocations.  Usually invited clergy delivered the prayers.  On some occasions, board members led the prayers. School board members made proselytizing remarks concerning Christianity in relation to the invocations.  Minor students, from grade school to high school age, took part in the school board meetings.  The injunction barred the board members from conducting, permitting, or endorsing school-sponsored prayers in board meetings.

The 9th Circuit agreed that under the circumstances the prayer policy violated the Establishment Clause of the First Amendment.  The court ruled that the prayer did not fall under the legislative-prayer tradition that permits certain types of prayers to open legislative sessions:  solemnizing and unifying prayers aimed at the legislators themselves, conducted before an audience of mature adults.  Instead, they are delivered before a group of minor students whose presence is not voluntary and whose relationship to board members (unlike a constituent's relationship to a legislature) is not one of full parity.  Further, the historical tradition of legislative prayer does not apply to school board prayer; at the time of the framing, free public education was virtually nonexistent.  The framers therefore could not have contemplated whether opening prayers at a government-run school board's meeting would violate the Establishment Clause.  The Lemon v. Kurtzman test for determining impermissible establishment of religion therefore applies.  The prayer policy fails that test, because it lacks a secular legislative purpose.  Government action violates that prong of Lemon when the government's predominant purpose is to advance or favor religion.  In evaluating purpose, the court takes the statements of public officials into account.  Shortly after the policy was adopted, a board member stated the policy's purpose was to further Christianity.  Further, there is no secular ground for limiting solemnization of meetings to prayers or presuppose the solemnizers will be religious leaders.  The expressed purpose of demonstrating tolerance for religious diversity fails, because there are many non-Christian faiths in California whose membership lacks a "critical mass" in the district to sustain a community there.  The invocation policy therefore reinforces the dominance of particular religious traditions.  Further, the policy does not embrace nonreligious belief systems.  Further, the policy fosters an impermissible entanglement between religion and government. 

Jury Instruction to Defer to Prison Officials Limited to Evidence Treatment Results from Security Concerns

In Shorter v. Baca, published July 16, 2018, the 9th Circuit reversed the denial of a new trial motion after a jury trial that resulted in a defense verdict.  When the plaintiff, a pretrial detainee, arrived at the county women's jail, a social worker diagnosed her with a mood disorder.  She was placed in the unit for mentally ill women.  The plaintiff presented uncontroverted evidence that the county had a policy of shackling the women to steel tables in the middle of an indoor recreation room as the recreation for the women, and that jail officials as a matter of routine would chain prisoners, naked, to their cell doors for hours at a time without access to food, water, or a toilet if they did not comply with required searches.  The only justification offered for curtailing the plaintiff's meals, showers, and recreation was a concern about overcrowding and understaffing in the facility. The court gave a 9th Circuit model jury instruction that the jury must give deference to jail officials in deciding the plaintiff's conditions of confinement and excessive search claims.

The 9th Circuit held that the deference instruction should not have been given.  The instruction ordinarily should be given only when there is evidence that the treatment to which the plaintiff objects was provided pursuant to a security-based policy.  That was not the case for the claim that the jail curtailed the plaintiff's meals, showers, or recreation.  The appellate court further ruled that the instruction should not have been given as to the plaintiff's complaint that the search procedure of chaining naked prisoners to doors for hours.  While there was evidence this procedure was partially security-based, substantial evidence supported the plaintiff's argument that the procedure was an unnecessary, unjustified, and exaggerated response to the need for security.  The deference instruction should not be given under those circumstances either.