Government Liability Update

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.

Post-Incarceration Plea Agreement to Time Served Bars Constitutional Challenge to Original Conviction

In Taylor v. County of Pima, published January 17, 2019, the 9th Circuit affirmed the district court's granting of a motion to dismiss a 42 U.S.C. section 1983 suit challenging the defendant's 1972 conviction on grounds of denial of due process and fair trial.  In 2012, while still incarcerated, the plaintiff advanced new evidence supporting his innocence.  The government contested the evidence, but in 2013 entered into a new plea deal with the plaintiff under which the original conviction was vacated, but the plaintiff pleaded no contest to the same counts, was sentenced to time served, and was released.  The district court ruled that Heck v. Humphrey barred the suit.

The 9th Circuit agreed.  Under Heck, a plaintiff may not pursue a section 1983 lawsuit if a judgment in the plaintiff's favor would necessarily imply a state law conviction is invalid, unless the conviction has been vacated by a state court.  Here, the 1972 conviction was vacated, so that conviction does not bar the suit.  But the 2013 plea deal was a valid conviction.  Therefore, even if the plaintiff could prove constitutional violations arising out of his 1972 conviction, he could not challenge the resulting imprisonment, because as a matter of law the 2013 conviction caused all of his prior imprisonment.

Court May Not Deny Qualified Immunity in Excessive Force Case on Ground That Freedom from Excessive Force is Clearly Established

In City of Escondido v. Emmons, published January 7, 2019, the U.S. Supreme Court, in a per curiam opinion, reversed a 9th Circuit decision holding that excessive force claims against two officers should be sent to trial.  The officers answered a domestic abuse call.  After the officers knocked on the apartment door but were unable to persuade those inside to answer the door for a welfare check, a man exited the apartment door.  One officer told the man not to close the door.  He closed it and brushed past the officer.  The officer stopped the man, took him quickly to the ground, and handcuffed him.  He turned out not to be the suspect.  The district court held that the officer who did not participate in the use of force was entitled to summary judgment, and the other officer was entitled to summary judgment based on qualified immunity.  In an unpublished opinion, the 9th Circuit reversed as to both officers.  Because the right to be free from excessive force was clearly established, the circuit court ruled, the officers were not entitled to qualified immunity.

The Supreme Court ruled that the 9th Circuit erred as to both officers.  As to the officer who did not participate in the use of force, the reversal as to him was unexplained and puzzling.  As to the officer who used force, the circuit erred in not defining the clearly-established right with specificity.  The court should have asked whether clearly established law prohibited the officers from stopping and taking down a man in these circumstances. 

Impounding Vehicles Because Drivers Lacked California Driver's Licenses Violated the Fourth Amendment

In Sandoval v. City of Santa Rosa, published December 21, 2018, the 9th Circuit affirmed a district court's summary judgment rulings for plaintiffs and defendants in a case brought by two drivers whose vehicles were impounded by a defendant city or defendant county because the drivers had current or expired Mexican driver's licenses (and passengers with California driver's licenses) but did not themselves have California-issued driver's licenses.  The seizures were under California Vehicle Code section 14602.6(a)(1), which provides a police officer may impound a vehicle for 30 days if the vehicle's driver had never been issued a driver's license.  The statute did not define "driver's license."  The city and county interpreted the term to refer to a California-issued driver's license.  The district court granted the plaintiffs summary judgment in their monetary claims against the city and county for propounding policies that violated the Fourth Amendment.  It granted summary judgment for the defendants on the plaintiffs' claims under the Bane Act, Civil Code section 52.1.

The 9th Circuit had previously held that 30-day impounds under the statute are seizures for Fourth Amendment purposes.  The question was whether the impounds were reasonable under the Fourth Amendment.  The court ruled that under the circumstances, they were unreasonable warrantless seizures.  The "community caretaking" exception does not categorically permit impounding private property simply because a state law allows the impoundment.  Further, the exception would not apply past the point where the community caretaking function is discharged.  Once the drivers were able to provide a licensed driver who could take possession of the truck, the community caretaking function of preventing improperly licensed drivers from driving was discharged.  There was no dispute that the seizures were under city and county policies.  The defendants argued that the seizures could not support Monell liability because they were legal under state law.  The 9th Circuit avoided that issue by ruling that the statute, interpreted in harmony with Vehicle Code sections 310 and 100, a driver who had been issued a driver's license in a foreign jurisdiction for the type of vehicle seized has not violated Vehicle Code section 14602.6.  The defendants did not violate the Bane Act, however, because if the right at issue is not clearly delineated and plainly applicable under the circumstances of the case, specific intent to violate the plaintiff's rights--an element of the Bane Act claim--cannot be implied.  Because the 9th Circuit's ruling that an impoundment under the statute implicated the Fourth Amendment post-dated the seizure, the right violated was not clearly established and intent could not be implied.

 

Police Department and City Attorney Violated Officer's Attorney-Client Privilege, but Recusal of City Attorney's Office Not Warranted

In City of San Diego v. Superior Court (Hoover), published December 19, 2018, the Fourth District Court of Appeal, Division 1 issued a writ vacating a trial court order disqualifying a city attorney's office from defending the city in an employment lawsuit.  The real party in interest, a police detective, sued the city, her employer, alleging harassment and retaliation.  While that suit was pending, the attorney representing her in that lawsuit filed another suit against the city for another client, alleging the city failed to properly investigate a sexual assault and then covered the suit up.  An Internet news service referred to a police report that the service had obtained.  Internal Affairs investigated to determine if and how the news service had obtained a confidential police report.  IA interviewed the detective to see if she was the source of the leak. She was warned failure to answer could be treated as insubordination, punishable by termination.  She admitted accessing the report.  She was asked about her communications with her attorney.  Her union representative objected based on attorney-client privilege.  The detective started answering.  The rep again objected and advised the officer not to answer.  The investigators stopped asking about the communications.  Later that day, one of the investigators contacted the detective and told her the city attorney's office had concluded the privilege did not preclude questions about the detective's communications with her attorney as they related to the leaked police report.  She was ordered to return for a follow-up interview in eight days.  The attorney learned of the interviews, and threatened to move to disqualify the city attorney if the city asked the detective about their communications.  At the follow-up interview, the detective had an attorney provided by the police officers' association, and an attorney from the city attorney's office was present.  The detective said she learned of the second lawsuit from her attorney's group text message, and then called him on the teslphone about a different issue.  She admitted printing out the police report regarding the second case out of curiosity, and stated she then shredded it.  The investigators pressed the detective for details of what information the detective's attorney provided during their phone conversation. The deputy city attorney asked whether the second case's allegations were encompassed in the detective's case.  After the interview, the trial court granted the motion to disqualify the city attorney in the detective's harassment and retaliation action, on the grounds that the IA interview violated the attorney-client privilege and Rule 2-100 of the Professional Rules of Conduct, barring a lawyer from contacting a litigant known to be represented by counsel.

The appellate court agreed with the trial court that forcing the detective to divulge the contents of her conversation with her attorney violated the attorney-client privilege.  While the contents of the group text were not confidential communications and were not privileged, the detective's subsequent phone conversation with her attorney was protected.  The city erred by failing to apply ex parte to the court in the detective's lawsuit for a determination of whether the communications were protected by attorney-client privilege before resuming the interview and forcing the detective to speak about the attorney-client communications.  The appellate court also agreed that the Rules of Professional Conduct precluded the deputy city attorney from directly questioning the detective during the interview about matters concerning her lawsuit, without her attorney present and without that attorney's consent.  The deputy should have confined his participation in the meeting to advising the investigators.  But the appellate court, after reviewing the sealed transcript of the interview, concluded there was no reasonable likelihood that the misconduct would give the city an unfair advantage in the detective's suit.  Since attorney disqualification must be prophylactic rather than punitive, and disqualifying an entire city attorney's office should be done with caution, the disqualification order was reversed.

If Law Enforcement Agency Induced Family's Detrimental Reliance on Search Efforts, It Owed Duty to Carry Out Search with Due Care, but Did Not Violate the Constitution

In Arista v. County of Riverside, published November 20, 2018, the Fourth District Court of Appeal, Division 2 reversed in part and affirmed in part a trial court decision sustaining a demurrer without leave to amend and dismissing an action against the defendant county.  According to the complaint's allegations, the plaintiffs' decedent set out mountain biking one morning in light clothing.  He intended to return early that afternoon.  In the early evening, the decedent's wife contacted the decedent by cellphone.  The decedent stated that he had been injured in an accident, but was returning home.  He sounded disoriented and confused.  The wife called 911.  The operator instructed her to stay home and wait for law enforcement.  First city police, and then a sheriff's deputy came to the home.  The deputy had the cellphone company ping the decedent's phone.  The location was near the decedent's original destination on the mountain.  The company had personnel working in the area.  The deputy asked the company to have its personnel be vigilant for the decedent's location.  At 10 p.m. a sheriff's lieutenant arrived at the home.  He identified himself as the "Incident Commander" for the case.  He had no search and rescue training.  He allegedly told the deputy that he believed the decedent was having an affair, and questioned why law enforcement was involved.  The lieutenant told the wife that the sheriff's department would start the search in the morning.  When the wife asked the chances of the decedent dying of hypothermia, the lieutenant replied that the decedent was a grown man and could take care of himself.  The department had a team with all-terrain vehicles that could have been dispatched to search for the decedent, but were not.  Deputies with sedan-type vehicles were assigned to watch the trailheads.  The department allegedly told the wife not to initiate any search.  Nevertheless, the family organized itself into a search team and began searching on foot at 3:45 a.m.  In the morning, a volunteer who worked with the sheriff's department searched for the decedent, and found his body on a fire access road.  He had died of hypothermia.

The appellate court held that based on those allegations, the complaint stated causes of action against the county for wrongful death, negligence, and negligent infliction of emotional distress.  Police officers may owe a duty to provide affirmative assistance if they enter into a special relationship with a member of the public.  A special relationship may be found when the state, through its agents, voluntarily assumes a protective duty toward a member of the public and undertakes actions on behalf of that member, inducing reliance.  One who voluntarily comes to the aid of another is under a duty of due care in performance, and may be held liable in negligence if failure to exercise due care increases the risk to the person or if reliance on the undertaking causes harm.  The court concluded that the sheriff's department's alleged actions showed that they undertook the responsibility of rescuing the decedent.  They induced reliance on their actions, as shown by the allegation that the family did not undertake its own rescue efforts until the lieutenant told the wife the department would not begin searching until morning.   The appellate court affirmed, however, the demurrer as to the Monell cause of action under 42 U.S.C. section 1983.  Monell liability requires facts showing deliberate indifference.  The complaint did not plead any such facts.  Because the plaintiffs did not show how they would amend the complaint to show deliberate indifference, the trial court properly denied leave to amend as to that cause of action.