Government Liability Update

Recission of Peace Officer's Promotion During Probationary Period Did Not Entitle Officer to an Administrative Appeal

In Conger v. County of Los Angeles, published June 14, 2019, the Second District Court of Appeal, Division 1 affirmed a trial court decision denying a writ petition to a deputy sheriff.  The petitioner received a probationary promotion from Sergeant to Lieutenant.  During the six-month probationary period, the sheriff's department informed the petitioner he was under investigation for events occurring before the probationary period.  The department gave the petitioner notice it was releasing him from his probation, based on an alleged failure to report a use of force when he was a sergeant.  The petitioner requested a hearing under Government Code section 3304(b), part of the Public Safety Officers Procedural Bill of Rights,  The county civil service commission denied the request.  The petitioner challenged the denial.  

The appellate court agreed with the trial court that the petitioner was not entitled to writ relief.  Section 3304(b) entitles an officer who has successfully completed the probationary period a hearing before any punitive action or denial of promotion on grounds other than merit is taken against him.  The appellate court ruled that the decision to rescind the probationary promotion and return the petitioner to his previous position was a denial of promotion, not a demotion or punitive action.  The promotion was not yet peronanemnt, and the employer was still evaluating whether the officer deserved the higher position.  The denial was on merit-based grounds, since the alleged failure to report would bear on the petitioner's qualifications to serve as a lieutenant.  The petitioner failed to show that his negative probation evaluation could lead to future adverse consequences.  The statute therefore did not entitle him to a hearing.

Probable Cause for Arrest Precludes First Amendment Claim for Retaliatory Arrest

In Nieves v. Bartlett, published May 28, 2019, the U.S. Supreme Court, in a split opinion, reversed a 9th Circuit decision which itself reversed summary judgment for the defendant police officers.  During a winter sports festival in Alaska, one of the defendant officers was speaking with festival goers when the plaintiff told the goers they should not speak with the police.   The officer approached the plaintiff to explain the situation.  The plaintiff told him to leave. Several minutes later, the other defendant officer was talking with a teenager when the plaintiff allegedly approached, stood between the officer and teen, said that the officer should not speak with the minor, and stepped close to the officer.  The officer pushed him back.  The two defendant officers arrested him.  According to the plaintiff, after he was handcuffed, the first officer said, "[B]et you wish you would have talked to me now."  The state dismissed the criminal charges against the plaintiff.  He sued the officers under 42 U.S.C. section 1983 for violating his First Amendment rights by arresting him in retaliation for his speech.  The allegedly protected speech was his refusal to talk to the first officer and his intervention in the second officer's conversation with the teen.  The district court granted summary judgment on the ground that the officers had probable cause to arrest the plaintiff.  The 9th Circuit held that a plaintiff can prevail on a First Amendment retaliatory arrest claim even in the face of probable cause for the arrest.

The opinion of the court, in which five justices joined, was that a plaintiff must establish absence of probable cause to establish a retaliatory arrest claim.  If the plaintiff establishes lack of probable cause, the plaintiff must show that the retaliation was a substantial or motivating factor behind the arrest.  If that showing is made, the defendant can prevail only by showing that the arrest would have been initiated without respect to retaliation.  There is a narrow exception for circumstances where officers have probable cause to make arrests, but typically elect not to do so, as in jaywalking situations. Such situations pose the danger that officers may exploit their arrest power to suppress speech.  Therefore, the no-probable-cause requirement should not apply when a plaintiff presents objective evidence he was arrested when otherwise similarly-situated individuals not engaged in the same sort of protected speech had not been.  Under these rules, the plaintiff's retaliation claim was subject to summary judgment, because there was probable cause to arrest him, and because the evidence of the first officer's statement would not support a retaliatory arrest claim against the second officer.

Another justice, Thomas, concurred in the decision except for the exception to the no-probable-cause rule.  Justice Gorsuch concurred that absence of probable cause is not an absolute requirement and its presence not an absolute defense, but dissented from the rules the majority drew.  Justice Ginsburg concurred that the officer for whom there was no evidence of retaliation was entitled to summary judgment, but otherwise dissented.  Justice Sotomayor dissented, opining that probable cause should not be a defense.

The Anniversary Method of Calculating Deadlines Applies to the Statute of Limitations for Filing a 42 U.S.C. § 1983 action after a Minor Achieves Majority

In Shalabi v. City of Fontana, published May 21, 2019, the Fourth District Court of Appeal, Division 2 reversed a judgment against the plaintiff after a bench trial.  The plaintiff sued a police officer under 42 U.S.C. section 1983 for allegedly wrongfully shooting and killing the plaintiff's father when plaintiff was a minor.  The plaintiff turned 18 on December 3, 2011.  He filed his complaint on December 3, 2013.  The court held a bench trial on stipulated facts on the issue of whether the complaint was filed within the statute of limitations.  It concluded that the last day to file the suit was December 2, 2013, and that the lawsuit was time-barred.

The appellate court ruled that the trial court calculated the last day to file incorrectly.  Under section 1983, California's statute of limitations for personal injury actions--two years--applies.  California law controls the tolling of that statute of limitations.  Under Code of Civil Procedure section 352, a minor's cause of action is tolled until the minor turns 18.  The statute begins running on the minor's 18th birthday.  The two methods of calculating the statute of limitations after the tolling period ended are the anniversary method and the calendar method.  The trial court used the calendar method.  Under Code of Civil Procedure section 12, however, California law uses the anniversary method, under which the first day of the period is excluded and the last day is included.  Since the plaintiff's birthday on December 3, 2011 was the triggering date, that day is excluded, and the count starts with December 4.  Two calendar years from that date is December 3, 2013.  That date is included.  So the last day to file was December 3, 2013.  An 1884 California Supreme Court case held that the first day is counted, because the plaintiff has the entire first day of majority to file suit.  That case did not address section 12, and so is not binding authority on section 12's application.  

Because Law Did Not Clearly Establish Takedown of Person Keeping Officers Out of Home Was Excessive Force, Officers Entitled to Qualified Immunity

In Emmons v. City of Escondido, published April 25, 2019, the 9th Circuit Court of Appeals affirmed summary judgment in favor of the defendant police officers in a 42 U.S.C. section 1983 case.  Officers were asked to conduct a welfare check on a woman and two children.  The month before, the woman's husband had been accused of domestic violence.  When the officers arrived at the apartment house where the woman lived, the woman's roommate and children were outside the apartment.  The roommate told the officers everything was fihe and that they were not needed.  The officers proceeded to the apartment.  The woman and her father were inside.  The woman refused to allow the officers to enter.  The father emerged from the apartment.  According to the father, he stepped out of the apartment with his back to the exterior hallway and began to close the door.  The officers' bodycams recorded one of the officers telling the man not to close the door, to put his hands behind his back, and to get on the ground.  As the officer said this, he grabbed the father and threw or tackled him to the ground.  The 9th Circuit initially ruled that the officers were not entitled to qualified immunity as to the use of force.  The Supreme Court granted certiorari, reversed as to one officer, and vacated and remanded as to the officer who performed the takedown.

On remand, the 9th Circuit concluded the officer was entitled to qualified immunity.  The law did not clearly establish that stopping and taking down a man under the circumstances here was excessive force.  Case law establishing the right to be free from use of force in response to mere passive resistance was not directly on point; otherwise the Supreme Court would not have vacated the denial of summary judgment.  No case was so precisely on point as to clearly establish the use of force was unconstitutional.

Statute of Limitations on Fourth Amendment Action Is Not Tolled During Plaintiff's Successful Appeal from Criminal Conviction; Reversal Based on Exclusionary Rule Is Not Favorable Termination for Malicious Prosecution Purposes

In Mills v. City of Covina, published April 24, 2019, the 9th Circuit Court of Appeals affirmed a district court's dismissal of a plaintiff's 42 U.S.C. section 1983 lawsuit.  In 2013, the plaintiff was stopped and searched. Incriminating evidence was found in his car.  In the criminal prosecution against him, the plaintiff moved to suppress the evidence based on lack of probable cause to stop and search him.  The motion was denied.  During the trial, the plaintiff argued the evidence was planted.  He was convicted. In 2016, the California Court of Appeal reversed the conviction, on the ground there was no probable cause for the stop and search, and ruled the suppression motion should have been granted.  Because the ruling left no evidence to support a conviction, the appellate court remanded for reversal.  The plaintiff then sued the arresting officer, the defendant city, and the police chief for Fourth Amendment violations based on the stop, search, and arrest; a malicious prosecution claim under section 1983; and a Monell claim based on malicious prosecution.  The district court dismissed the Fourth Amendment claims as time-barred.  The court later granted the City and arresting officer judgment on the pleadings as to the malicious prosecution and Monell claims.

The 9th Circuit agreed the Fourth Amendment claims were time-barred.  The claims accrued in 2013 when the search was conducted and the plaintiff arrested.  Government Code section 945.3 tolled the statute of limitations during the criminal proceedings in the trial court.  The plaintiff contended that during his appeal, Code of Civil Procedure section 356 tolled the statute for suing on the Fourth Amendment claims, because those claims were barred by Heck v. Humphrey until the conviction was set aside.  Section 356 tolls statutes of limitations during the time the plaintiff is legally prevented from taking action to protect his rights.  But section 356 requires a definitive bar to commencing an action.  The Heck bar did not prevent the plaintiff from commencing a section 1983 action for the Fourth Amendment violation.  Even if the district court dismissed the action at that time based on Heck, the plaintiff would have been able to revive the action once the conviction was overturned.  The two-year statute of limitations thus ran on the Fourth Amendment claims before the plaintiff filed suit.

The malicious prosecution and Monell claims were not time-barred.  Further, the district court erred in ruling collateral estoppel barred the claim, because his conviction, which was eventually reversed, was not a final ruling.  But the district court correctly ruled that the reversal was not a favorable termination of the criminal action.  Because the state appellate court reversed on the exclusionary rule, there was never a ruling that the plaintiff did not commit the criminal offense.  He therefore could not meet the favorable-termination element of malicious prosecution.

2019 Amendment to Police Record Disclosure Law Applies to Pre-2019 Records

In Walnut Creek Police Officers' Association v. City of Walnut Creek, ordered published March 29, 2019, the First District Court of Appeal, Division 4 denied a petition for writ of supersedeas filed in multiple consolidated matters.  The appellants contended that Penal Code section 832.7(b)(1), as amended in 2019, did not apply to pre-2019 police records, because that would be improper retroactive application of the new law.  The amended statute prescribes that police personnel records relating to police shootings, uses of force resulting in death or great bodily injury, or sustained findings of various types of misconduct are not confidential and shall be made available under the California Public Records Act.  The appellate court determined that the appeals lacked merit.  Because the event necessary to trigger the law's application--a request for an agency's records--necessarily occurs after the law's effective date, and the new law does not change the legal consequences for officer conduct described in pre-2019 records, application to pre-2019 records is not improperly retroactive.

Because the Law Does Not Clearly Establish That Retaining Property Lawfully Seized under Search Warrant Violates Constitution, Officers Accused of Retention Entitled to Qualified Immunity

In Jessop v. City of Fresno, published March 20, 2019, the 9th Circuit Court of Appeals affirmed summary judgment in favor of defendant police officers.  As part of an investigation into illegal gambling machines, the officers obtained a search warrant for seizure of money and property related to the machines.  The officers executed the warrant and seized money and property from the plaintiffs' properties.  The officers provided the plaintiffs with an inventory of items seized.  The plaintiffs contended that cash and rare coins seized were not reflected on the inventory sheet.  The  officers denied any difference. The plaintiffs sued the officers under 42 U.S.C. § 1983, alleging violation of their rights under the Fourth Amendment and their substantive due process rights under the Fourteenth Amendment.  The district court granted the officers summary judgment based on qualified immunity.

The 9th Circuit agreed that the officers were entitled to qualified immunity.  The Ninth Circuit has not addressed whether alleged theft of property lawfully seized under a search warrant violates the Fourth or Fourteenth Amendment.  The circuits are split on the issue.  The absence of any cases of controlling authority or a consensus of cases of persuasive authority on the constitutional question compels the conclusion that the law was not clearly established at the time of the incident. The court did not reach the issue of whether the alleged misconduct did violate the Fourth or Fourteenth Amendment.

(Pollak, Vida & Barer represented the officers on appeal.)

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).

Officer Entitled to Qualified Immunity for Failure to Prevent Arrestee's Suicide Attempt in Cell, but Is Not Entitled to Summary Judgment on State Law Claim

In Horton v. City of Santa Maria, published February 1, 2019, a divided 9th Circuit panel affirmed in part and reversed in part a district court order denying summary judgment to a police officer and his city employer in a case brought under 42 U.S.C. section 1983 and California Government Code section 845.6.  The plaintiff was arrested after slashing the tires of a vehicle his girlfriend was riding in.  He admitted to hitting the girlfriend in the past. While in the holding cell at the police station, he told the defendant officer of various troubles in his life, and that he was nervous being in a cell, but twice denied needing medical care.  Another officer referred to the possibility of a psych consult for the plaintiff.  The plaintiff's mother talked to him on the phone.  The officer then spoke to the mother on the phone for about 15 minutes.  The mother told the officer the son had engaged in self-harm and suicidal ideation.  While the officer talked with the mother, the plaintiff undid his belt, looped it through the bars, and hanged himself.  The plaintiff was left alone for a half hour, during which he developed brain damage from the hanging.  The district court denied summary judgment to the officer and the city on the federal and state claims.

The 9th Circuit panel unanimously reversed denial of summary judgment as to the section 1983 claim against the officer.  Because insufficient case law established that the officer's actions amounted to deliberate indifference under the then-prevailing Fourteenth Amendment standard for denial of medical care to pretrial detainees, any Fourteenth Amendment violation was not clearly established.  The officer was therefore entitled to qualified immunity. The court also unanimously ruled that it lacked jurisdiction over the denial of summary judgment to the city on the Monell claim.  While denial of summary judgment based on qualified immunity is immediately appealable, denial of summary judgment to a municipal defendant may be appealed only if reversal on the qualified immunity issue as to the individual will also lead to reversal for the municipality.  That standard was not met here, because the municipality could be held liable even if the officer was entitled to qualified immunity due to lack of clearly-established law.

The majority held that the district court also properly denied summary judgment on the state law claim.  Under the facts, the majority found triable issues of fact on whether the information the defendant officer had showed that the plaintiff required immediate medical care to prevent his suicide attempt.  The dissenting judge argued that there was no evidence that the plaintiff required immediate medical care, or that immediate medical care would have prevented the suicide attempt or injury.  The dissenting judge further criticized the majority for following 9th Circuit case law interpreting Government Code section 845.6 whcih the California appellate courts subsequently criticized.

Exigent Circumstances of Inmate Disturbances and Lockdowns Justified Denying Jail Inmate Bed

In Olivier v. Baca, published January 11, 2019, the 9th Circuit affirmed summary judgment granted to a former county sheriff, in his official and individual capacities, in a suit filed by a jail inmate under 42 U.S.C. section 1983.  While the inmate was being processed at the county Inmate Reception Center, a series of inmate disturbances and lockdowns occurred throughout the county jail system.  As a result, the plaintiff was not transferred to permanent housing for three and a half days.  During that time, although a bench was available for sleeping, the plaintiff alleged that there were too many inmates in the IRC to permit them all to sleep on the bench, and attempting to do so would have caused a fight.  The inmate therefore slept on the floor.  The plaintiff sued the former sheriff for allegedly violating his Fourteenth Amendment rights.

The 9th Circuit upheld the district court's conclusion that the former sheriff was entitled to summary judgment in his official capacity, because the plaintiff failed to show a county custom or policy that violated the plaintiff's Fourteenth Amendment rights.  It is established that disturbances by inmates and lockdowns can delay detention facility procedures and temporarily restrict rights without violating the Eighth Amendment.  The same considerations apply to Fourteenth Amendment claims by pretrial detainees.  The undisputed evidence established that keeping the IRC inmates in place during the exigent circumstances was reasonable because jail personnel had to be deployed to deal with the disturbances and lockdowns.  The jail officials' response was reasonable in scope and effective in controlling the disturbances.  The plaintiff was transferred to permanent housing after the disturbances had been controlled.  The district court also correctly granted summary judgment to the former sheriff in his individual capacity, based on qualified immunity.  The plaintiff failed to show that the law clearly established that under the exigent circumstances here, depriving an inmate of a bed violated the Fourteenth Amendment.