Government Liability Update

Pleading Guilty to Disturbing the Peace Does Not Prevent Plaintiff from Suing under State Law for Excessive Force

In Kon v. City of Los Angeles, published June 1, 2020, the Second District Court of Appeal, Division 8 reversed an order dismissing the plaintiff's suit.  The plaintiff alleged that a police officer accused him of speeding, tackled the plaintiff while he was on the phone, put his knee in the plaintiff's back while the plaintiff was down, hit the plaintiff, and handcuffed him.  The officer alleged that the plaintiff was speeding, refused to provide his driver's license, insurance, and registration, pulled away from the officer's handcuffs and resisted arrest, and required subduing.  The plaintiff was charged with resisting arrest.  He pleaded guilty to disturbing the peace.  He then sued the officer for using excessive force.  He asserted causes of action under Civil Code section 52.1, assault, battery, and negligence.  The trial court dismissed the action because it concluded the allegation of resisting arrest barred his action.

The appellate court ruled the trial court erred.  Under Yount v. City of Sacramento (2008) 43 Cal.4th 885, a criminal conviction bars a subsequent civil suit arising out of the same incident if the allegations in the suit are inconsistent with the conviction.  This rule serves the goals of finality and consistency.  Here, the civil suit is about whether the defendant officer used excessive force.  The criminal case did not address or resolve that issue.  The civil suit therefore is not inconsistent with the conviction.  The civil suit may proceed.

Officers Who Fail to Intervene in Colleague's Mishandling of Firearm Not Acting under Color of State Law; Municipality's Policy on Carrying Firearm Does Not Show Deliberate Indifference

In Park v. City and County of Honolulu, published March 13, 2020, a divided 9th Circuit panel affirmed a district court's dismissal of a 42 U.S.C. section 1983 lawsuit.  Three off-duty police officers were in a bar.  One allegedly became intoxicated, inspected his personal revolver (which his department had authorized him to carry), and tried to load his already-loaded pistol.  It accidentally discharged, and a bullet struck the plaintiff, a bartender.  She sued the three officers and the defendant municipality.  She alleged that the two other officers violated her Fourteenth Amendment substantive due process right to bodily integrity by failing to intervene.  She alleged that the municipality violated her rights by promulgating a policy requiring off-duty officers to carry a firearm at all times, except when mental processes are impaired by drinking (allegedly requiring an officer to carry a firearm until he or she consumes enough alcohol to be impaired); and by a "brotherhood code of silence" that allegedly emboldened the intoxicated officer to act with impunity.

The panel majority agreed with the district court that the plaintiff failed to plead facts establishing either claim.  Because the non-shooting officers were not only off-duty, but in civilian clothes, they did not have the indicia of authority that would establish that they were acting under color of law when the allegedly failed to intervene.  The two policies or customs described did not show Monell liability, because the plaintiff failed to plead facts showing deliberate indifference behind them.  Deliberate indifference required either an obviously facially inadequate policy, or a pattern of  prior, similar violations of federally-protected rights, of which the policymakers had actual or constructive notice.  The facts showed neither here.  A dissenting judge opined that the complaint adequately pleaded that the officer with the revolver was acting under color of state law, and that the policies, practices, or customs identifies showed deliberate indifference sufficient to plead a cause of action. 

District Court Insufficiently Explained Its Decision to Limit Plaintiff Who Settled for 10% of Damages Sought to 10% of Fee Sought

In Vargas v. Howell, published February 5, 2020, a divided panel of the 9th Circuit Court of Appeals affirmed in part and reversed in part a fee award to a plaintiff in a 42 U.S.C. section 1983 case who entered into a settlement with the defendants that allowed the plaintiff to seek his attorney fees in court.  In discovery, the plaintiff asserted his damages were $1 million.  He ultimately settled for $99,999, 10% of what he sought.  He sought $257,000 in attorney fees.  On the plaintiff's fee motion under 42 U.S.C. section 1988, the district court awarded $26,000 in fees.  Among his grounds for cuts were an across-the-board reduction of the fees sought by the firm and attorney who did most of the work by 90%.  The court also excluded fees billed by two of the plaintiff's attorneys who left the firm that represented him before the litigation concluded, on the ground that the attorneys' new firm did not have standing to seek fees.  Other cuts were based on tasks and hours the court deemed unreasonable.

The majority affirmed several of the cuts the district court made, but concluded that the district court did not adequately explain the size of the cut of the principal attorney's fees.  More substantial cuts require more substantial explanations.  The district court erred to the extent it concluded that the settlement for 10% of the amount sought mechanically justified cutting the fees by 90%.  Limited success, by recovering much less than the plaintiff sought, can be a ground for deeming fees unreasonable under some circumstances, such as where the suit was brought only for nuisance value or the district court makes rulings that establish the plaintiff will not be able to prevail.  No such circumstances were present here.  Cutting fees whenever the plaintiff settles for or recovers much less than the plaintiff stated he was seeking would discourage plaintiff's attorneys from seeking substantial amounts of money and then negotiating down to a final settlement figure.  Instead, it would encourage them to claim only lower amounts, and then decline to negotiate downward.  The majority also reversed the finding that the attorneys who switched firms had no standing to seek their fees.  Since section 1988 fees belong to the client, not the attorney, the firm that seeks recovery is immaterial.

A dissenting judge would have affirmed the award in full, on the ground that the district court properly exercised its discretion.

Law Clearly Establishes Using Deadly Force after Low-Speed Chase, Absent Threat of Serious Injury to Shooting Officer or Others, Violates Fourth Amendment

In Orn v. City of Tacoma, published February 3, 2020, the 9th Circuit affirmed a district court decision denying a police officer summary judgment in a 42 U.S.C. section 1983 case on the ground of qualified immunity.  Because this was an interlocutory appeal from denial of qualified immunity, the appellate court resolved the disputed facts of what occurred in the light most favorable to the plaintiff.  A police officer tried to pull the plaintiff over because he was driving after dark without lights.  He was driving with a suspended license and had smoked crack.  Rather than pull over, the plaintiff drove home, at 25-35 miles per hour, stopping at traffic lights and stop signs.  During his 15 minute drive home, multiple officers pursued the plaintiff at slow speed.  Various attempts to get the plaintiff to stop failed.  The officers predicted the plaintiff would head to his apartment complex.  The defendant officer parked across a narrow point of the single access lane between the two entrances of the parking lot, to prevent the plaintiff from exiting.  the plaintiff pulled into the entrance and drove slowly down the access lane.  When he approached the defendant's SUV, he paused, came to a brief stop.  The defendant officer stood to the left of his SUV, gun drawn and pointed at the ground.  The plaintiff ignored the officer's commands to stop.  The plaintiff drove away from where the defendant was standing, and attempted to drive through a narrow opening between the passenger side of the defendant's SUV and a parked car.  He drove very slowly as he did so; the plaintiff and officers at the scene estimated he drove five miles per hour.  Another officer backed his vehicle into the plaintiff's line of travel.  The plaintiff turned more sharply to one side to avoid hitting the vehicle.  The plaintiff's passenger side clipped the passenger-side rear quarter of the defendant's SUV.  An officer inside the SUV called it a glancing blow.  The front corner of the plaintiff's vehicle struck the front corner of the other officer's vehicle.  As the plaintiff moved past the defendant's SUV, the defendant ran toward's the side of the plaintiff's vehicle and began firing at him.  One of the shots hit the plaintiff in the spine, paralyzing him.  His foot floored the accelerator as he slumped.  The defendant officer fired three rounds at the side of the vehicle and seven rounds through the rear windshield as the vehicle sped away from him.  Three of the ten total bullets fired hit the plaintiff.  The defendant officer disputed this sequence, and contended that the plaintiff accelerated toward him as he stood in front of the plaintiff's vehicle.  A jury acquitted the plaintiff of the charge of assaulting the defendant officer with his vehicle.

Taking the facts in the light most favorable to the plaintiff, the appellate court concluded that the defendant officer did not have an objectively reasonable basis for believing the plaintiff posed a threat of serious physical harm to the defendant or others.  The defendant officer was never at risk of being struck by the vehicle, because he was never in the vehicle's path of travel, either when he was at the vehicle's side or was shooting at it from behind.  A fellow officer's testimony that he only saw the plaintiff's vehicle accelerate after the first shots were fired reinforces the conflict between the defendant officer's version and the plaintiff's.  Even if jury found the officer was standing in the way of the plaintiff's vehicle, because the vehicle was driving only five miles per hour, the officer could have avoided any risk of being struck by taking a step back, which he did.  The defendant officer argued that he believed that the other officer inside the defendant's SUV had stepped out and was in danger, because the defendant believed he himself was in danger.  The issue of fact on whether the defendant officer was in danger therefore creates an issue of fact on whether he reasonably believed the other officer was in danger.  Further, at every juncture that evening, the plaintiff had deliberately driven his vehicle away from nearby officers.  There was no basis for believing the plaintiff would pose a danger to the public, based on his conduct.  The law clearly established that an officer firing into the side or rear of a vehicle moving away from him lacks an objectively reasonable basis for believing his own safety is at risk, particularly where a jury could conclude the officer was never in the path of the vehicle.  Precedent also established that where an officer could avoid any danger from a very-slowly-approaching vehicle by stepping aside, use of deadly force is unreasonable.  Because there were no officers or other individuals in the plaintiff's path, and under the plaintiff's version he never engaged in any conduct that suggested his vehicle posed a threat of serious physical harm to anyone in the vicinity, precedent clearly established that threat to others did not provide an objectively reasonable basis for the use of force.  Finally, the case law upholding use of deadly force to protect the public from a fleeing motorist involve suspects who drove at extremely high speeds, endangered other motorists on the road, or intentionally targeted police officers with their vehicles.  That did not occur in this case.

Juvenile Correction Officer's Sexual Comments and Conduct toward Ward of Opposite Sex, including Observing Her in Shower, May Have Violated Clearly-Established Law

In Vasquez v. County of Kern, published January 31, 2020, the 9th Circuit reversed summary judgment for a juvenile corrections officer and his supervisor in a lawsuit by a juvenile ward under 42 U.S.C. section 1983, alleging violation of the ward's Fourteenth Amendment rights.  The officer allegedly made multiple sexual comments to the ward; was alone with her in closed rooms, in violation of policy; touched her inappropriately; and sat at a staff counter in another room while she showered, from which point he could look into a shower.  There was evidence he directed her to use a particular shower.  The district court granted the officer and supervisor summary judgment, ruling that the conduct did not rise to the level of a Fourteenth Amendment violation, and that even if it did, the officer was entitled to qualified immunity.

The 9th Circuit disagreed.  There was a genuine issue of fact on whether the officer violated the ward's Fourteenth Amendment right to bodily privacy.  Viewing the evidence in the light most favorable to the ward, there was a dispute over whether the officer viewed the ward multiple times in the shower, and once entered her room when her privacy sign was out, without a legitimate prison interest.  Past cases holding that correctional officers did not violate prisoners' bodily privacy by observing prisoners of the opposite sex naked when the view was from far off and obscured, or where there was a legitimate prison interest, were distinguishable.  There was also a genuine dispute of fact on whether the officer violated the ward's right of bodily integrity by engaging in sexual harassment, considering the difference in age, size, and power between the two parties.  The evidence created a genuine dispute over violation of the ward's Fourteenth Amendment right to freedom from punishment, because the alleged conduct caused the ward harm outside of the inherent discomforts of confinement, and did not serve a legitimate governmental purpose.  The officer was not entitled to qualified immunity for this conduct, because Ninth Circuit precedent clearly established that such conduct would violate the Fourteenth Amendment.  It was also obvious that a juvenile corrections officer should not sexually harass or abuse a ward.  There was a genuine dispute of fact as to the supervisor's liability, because there was evidence that the supervisor was aware of the officer's conduct concerning wards showering and of the officer's violation of policy in the past and did not intervene.

Entity Could Not Rely on Stated Date of Injury in Failing to Reject Defamation Claim as Untimely; Prosecutorial Immunity Does Not Apply to Ministerial Act of Recording; Monell Liability for Failure to Train Need Not Be Pleaded with Particularity

In Roger v. County of Riverside, published January 22, 2020, the Fourth District Court of Appeal, Division 2 reversed a judgment for the defendant county entered on demurrer and summary judgment.  The plaintiff was a physician whom the court held in contempt when he refused to produce documents a court-appointed receiver requested to be produced in a civil case.  Unknown to the plaintiff, when he was booked, the county sheriff's department entered the charge into the Jail Information Management System as a felony, even though it was a civil violation; and reported the felony charge to the California Department of Justice.  When he was released from jail, he learned from a hospital with which he had staff privileges that he had failed to report to them a felony arrest.  He believed his arrest was for a civil charge, and that the letter was a mistake.  Six months after arrest, the plaintiff's girlfriend asked the jail to remove the felony designations.  She was told the designation would disappear shortly.  A month later, a group health practice terminated its contract with the plaintiff.  Four months after this event, the plaintiff presented a claim for damages to the county.  The claim form asked when the damage or injury occurred.  The plaintiff listed the date his contract was terminated, "and ongoing."  Among the documents he attached was the printout from JIMS reflecting the booking date and the date the charge was listed as a felony.  The county sent a summary notice that it had rejected his claim.  The defendants later changed the felony listing to a misdemeanor, which was also incorrect.  The plaintiff sued the county and sheriff's deparatment for defamation, writ of mandamus, declaratory relief, and a 42 U.S.C. section 1983 claim for failure to train.  The writ of mandate he sought was to prohibit the defendants from designating civil contempt as criminal charges rather than civil; and a declaration that the defendants had falsely reported that he had been charged with a felony and later changed it to a misdemeanor.  The trial court sustained a demurrer to  the section 1983 claims on the ground that the plaintiff had inadequately pleaded failure to train.  It later granted summary judgment as to the defamation claim, on the ground that the plaintiff's claim was untimely.  The plaintiff moved for summary judgment on the writ and declaratory relief claims.  The court denied the motion on the ground the claims were moot.  The parties stipulated to dismiss the remaining claims with prejudice, and the plaintiff appealed.

The appellate court ruled that the trial court erred in granting summary judgment on the defamation claim.  The claim was untimely, because a defamation cause of action accrues at the time of publication, not at the time of injury.  But the county waived the claim's untimeliness, because it failed to serve a notice of untimeliness.  The county argued that it relied on the date of injury stated in the claim, and that it had no duty to investigate to determine whether the claim was untimely.  But the county form did not ask when the claim accrued; it asked when the injury occurred.  For defamation, the date of injury did not determine the claim date.  Further, the JIMS printout attached to the claim did list the accrual  date:  The date the felony charge was published.  Since the purpose of the claim was to enable the county to investigate the charge, it was disingenuous for the county to argue that it had no duty to investigate by looking at the documents attached to the claim.  While an entity has no duty to investigate to determine timeliness, it fails to do so at the risk of waiving a timeliness defense in litigation.  By not notifying the plaintiff his claim was late, the county deprived him of the right to pursue late-claim relief and explain he did not discover the publication until nearly a year after publication.

The appellate court rejected the alternative ground for summary judgment that the defamation claim was barred by Government Code section 821.6 prosecutorial immunity.  The immunity extends to discretionary decisions in the course of investigation and prosecution, such as charging the plaintiff with contempt.  But the defendants were not involved in the prosecution of plaintiff, and recording the charge was a ministerial act.  It was therefore not subject to the immunity.

The appellate court ruled that the trial court erred in sustaining the demurrer to the failure to train charge.  Complaints need only allege ultimate facts, particularly where the entity has superior knowledge of the facts.  The defendants had superior knowledge of their training, so the complaint did not need to plead details.

Finally, the writ cause of action was not moot, because the facts showed the events here could be repeated in other cases, and the matter of reporting charges was a matter of public interest.

Because Prison Staff Member's Sexual Assault of Prisoner Violates Eighth Amendment, Jury Instruction Requiring Prisoner to Prove Elements of Excessive Force Claim Was Plain Error

In Bearchild v. Cobban, published January 16, 2020, a divided 9th Circuit panel reversed and remanded the judgment entered after the jury trial of a prisoner's Eighth Amendment claim against prison officials.  The plaintiff alleged that during an intrusive search, a prison guard improperly rubbed, groped, stroked, and squeezed the plaintiff in intimate areas.  During the trial of the prisoner's 42 U.S.C. section 1983 suit for violation of his Eighth Amendment rights, the district court gave the jury the 9th CIrcuit model Eighth Amendment instruction, which focused on the amount of force used, the need for the use of force, the user's subjective state of mind, and the harm.  The pro se inmate did not object to the instruction.  The jury returned a defense verdict.

The majority ruled that the jury instruction was erroneous.  Past 9th Circuit cases of alleged sexual assault of prisoners by prison staff established that a sexual assault violates the Eighth Amendment, since it serves no penological purpose; the defendant is presumed to have acted maliciously and sadistically for the purpose of causing harm, satisfying the subjective state of mind element; and the inmate need not prove he or she suffered injury to prove a violation.  Therefore, a prisoner presents a viable Eighth Amendment claim where where he  or she proves that a prison staff member, acting under color
of law and without legitimate penological justification, touched the prisoner in a sexual manner or otherwise engaged in sexual conduct for the staff member’s own sexual gratification, or for the purpose of humiliating, degrading, or demeaning the prisoner.  Because the instruction given required the prisoner to prove additional elements concerning excessive force, it was plain error.  A further instruction defining sexual assault did not cure the error, because a reasonable jury would not necessarily understand the instruction applied to the Eighth Amendment claim.  A dissenting judge opined that the combined instructions adequately informed the jury of the plaintiff's burden.

Period Probationary Employee Was Relieved of Duty, with Pay, Was Period Away from Actual Service, Permitting Employer to Extend Probationary Period

In Amezcua v. Los Angeles County Civil Service Commission, ordered published January 17, 2020, the Second District Court of Appeal, Division 5, affirmed a trial court order denying writ petitions of ordinary and administrative mandamus challenging the dismissal of a sheriff's deputy.  The county's civil service rules prescribe that a county employee's probationary period shall be no longer than 12 months from date of appointment to permanent position.  The rules further provide that if an employee is absent from duty, the appointing power may calculate the probationary period based on the date of actual service, exclusive of the time away.   The rules define "actual service" to mean time engaged in the performance of the duties of a position or positions including absences with pay.  The plaintiff was placed on a 12-month probationary period.  During the period, he was relieved of duty during an administrative investigation.  He was told to turn in his gun and badge and remain at home during work hours.  He received pay.  He was notified that his probationary period was being extended.  More than 12 months after his hire, he was terminated without a hearing.  He contended that his probationary period was not properly extended; that he therefore became a permanent employee when the 12 months expired; and that he was entitled to a hearing before termination.

The appellate court majority concluded that the probationary period was properly extended.  It interpreted the time during which plaintiff was relieved of duty to be time absent from duty, since he had no duties except to surrender his badge and gun and remain home during work hours.  It rejected an argument that because actual service included absences with pay, the time during which he was relieved of duty was a period of actual service.  A dissenting justice disagreed, and opined the text of the rules supported the plaintiff's interpretation.

Using a Chokehold on a Restrained, Non-Resisting Person Violates Clearly-Established Law

In Tuuamalemalo v. Greene, published December 24, 2019, the 9th Circuit affirmed a trial court order denying summary judgment in a 42 U.S.C. section 1983 case on qualified immunity grounds.  In 2014, the plaintiff was involved in a confrontation with police officers.  After five officers took the plaintiff to the ground, the defendant officer put the plaintiff in a lateral vascular neck restraint chokehold.  The plaintiff lost consciousness, and it took several attempts to revive him.  He sued the officers who restrained and used force against him.  The other officers obtained summary judgment based on qualified immunity.  The officer who applied the chokehold was denied summary judgment.

The 9th Circuit agreed with this ruling.  Viewing the facts in the light most favorable to the plaintiff--as the court was required to do when reviewing an order denying summary judgment based on qualified immunity--the plaintiff was restrained and was not resisting when the officer applied the chokehold.  Before 2014, a 2013 case and a 2003 case had held that using a chokehold on a non-resisting, restrained person violated the Fourth Amendment.  Further, a robust consensus of authority from other circuits holds that using a chokehold on a non-resisting person violates the Fourth Amendment.  The law was therefore clearly established in 2014 that use of a chokehold in this specific context violated the Fourth Amendment.

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

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

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