Government Liability Update

For Heck v. Humphrey Purposes, Conviction for Violation of PC 148(a)(1) Establishes That Officer’s Use of Force During Arrest Was Lawful

In Lemos v. County of Sonoma, published July 16, 2021, a divided panel of the 9th Circuit Court of Appeals affirmed summary judgment in favor of defendants in the plaintiff’s suit under 42 U.S.C. section 1983 for alleged use of excessive force.  One of the defendant officers saw a pickup truck obstructing a lane of traffic and heard screaming.  The plaintiff attempted to interfere with the officer’s interview of the pickup’s occupants.  The plaintiff started walking away from the truck and did not respond to the officer’s order to stop.  The officer grabbed her shoulder and brought her to the ground.  The plaintiff was prosecuted for violation of Penal Code section 148(a)(1)—resisting, delaying, or obstructing an officer in the performance of his duties.  The jury was instructed that the would have to find that the officer was lawfully performing or attempting to perform his duties as a peace officer, and that a peace officer is not lawfully performing his duties if the officer is using unreasonable or excessive force in his duties.  The jury was further instructed that the plaintiff could be found liable on one of four different theories of liability, representing different acts plaintiff performed during the officer’s investigation of the truck.  The jury convicted her, using a general verdict.  The district court granted summary judgment, on the grounds the Heck v. Humphrey doctrine barred the action.On appeal , the plaintiff contended that the jurors in the criminal trial did not necessarily find that she was guilty of pulling away from the arresting officer at the time he arrested her, and she could therefore sue the officer for using excessive force in response.

 

The majority affirmed summary judgment.  Under the Heck v. Humphrey doctrine, when a plaintiff who has been convicted of a crime under state law seeks damages in a section 1983 suit, the district court must consider whether a judgment in favor of the plaintiff would necessarily imply the invalidity of his conviction or sentence.  A plaintiff’s allegation of excessive force by a police officer is not barred by Heck if the officer’s conduct is distinct temporally or spatially from the factual basis of the plaintiff’s conduct.  Under Heck, the relevant inquiry is whether the record contains factual circumstances that support the underlying conviction under section 148(a)(1), not whether the conviction was obtained by a jury verdict or a guilty plea.  A conviction under section 148(a)(1) is valid only when the officer was acting lawfully at the time the offense against the officer was committed.  Here, by finding the plaintiff guilty, the jury was finding that the officer acted lawfully through the continuous chain of events that day, even when he placed the plaintiff under arrest.

 

A dissenting judge opined that the decision would encourage officer overreaction to minor criminal behavior.

Tolling of Statute of Limitations for Minor's Suit includes the Date of the Minor's 18th Birthday

In Shalabi v. City of Fontana, published July 12, 2021, the California Supreme Court affirmed a lower appellate court's decision that a 42 U.S.C. section 1983 lawsuit against the defendant city was filed within the statute of limitations.  The plaintiff alleged that on May 14, 2011, a city police officer wrongfully shot and killed the plaintiff's father.  The plaintiff was a minor at the time.  The minor's 18th birthday was December 3, 2011.  The minor filed suit December 3, 2013.  The trial court held a bifurcated bench trial on whether the suit was barred by the two-year statute of limitations.  The trial court concluded that the minor filed the suit one day late.  Although the statute of limitations was tolled while the plaintiff was a minor, the trial court relied on the unpublished California Supreme Court decision in Ganahl I, which included the date the minor plaintiff in that case reached the age of majority in calculating when the statute of limitations period commenced after tolling during minority ended.  The appellate court reversed, holding that the minor's 18th birthday should have been excluded in calculating when tolling ended and the statute of limitations began.

The California Supreme Court agreed. State law controls tolling of the statute of limitations for a section 1983 claim. Under Code of Civil Procedure section 352(a), when a minor is injured, the statute of limitations is tolled until the minor turns 18.  Code of Civil Procedure section 12 sets forth the ordinary rule for computing time.  Under it, the time within which any act provided by law is to be done is computed by excluding the first day and including the last (unless the last day is a holiday).  A uniform rule governing the method of computing time promotes clarity and stability. A case will not be
found to come under an exception to the general rule unless there is a clear expression of provision for a different method of computation.  There is no such expression concerning minors.  The Ganahl I case is not binding authority, because there was an in-bank decision after it; and it is not persuasive authority.  Because the plaintiff's December 3, 2011 birthday was included in the tolling period, the lawsuit brought December 3, 2013 was timely.

Court Must Analyze Facts and Circumstance to Determine Whether Officers Used Unconstitutional Amount of Force

In Lombardo v. City of St. Louis, published June 28, 2021, the U.S. Supreme Court, in a split per curiam opinion, reversed and remanded a summary judgment granted in favor of police officers.  The plaintiffs' decedent was arrested for trespassing and failure to appear in court for a traffic ticket.  While he was in jail, the decedent put a piece of clothing around his neck and tied it to the bars of his cell.  Multiple officers entered his cell. The decedent resisted. The officers handcuffed the decedent and put him in leg irons.  They moved him into a prone position, and an officer placed pressure on the decedent's back and torso.  After 15 minutes of struggling in this position, the decedent expired.  The decedents parents sued the police officers under 42 U.S.C. section 1983.  The district court granted summary judgment on the ground of qualified immunity.  The circuit court affirmed on the ground that the officers did not apply unconstitutionally excessive force.

The majority reversed the circuit court decision.  In assessing whether officers used excessive force, a court asks whether the offices' actions are objectively reasonable in light of the facts and circumstances confronting them.  Courts cannot apply the standards mechanically.  It requires careful attention to the facts and circumstances of each particular case.  Circumstances include the relationship between the need for the use of force and the amount of force used; the extent of the plaintiff ’s injury; any effort made by the officer to temper or to limit the amount of force; the severity of the security problem at issue; the threat reasonably perceived by the officer; and whether the plaintiff was actively resisting.  The majority ruled that it was unclear whether the circuit court thought the use of a prone restraint is per se constitutional so long as an individual appears to resist officers' efforts to subdue him, no matter the kind, intensity, duration, or surrounding circumstances.  Factors such as the agency instructing its officers that pressing down on the back of a prone suspect can cause suffocation, and police guidance to get a subject off his stomach as soon as handcuffed to avoid suffocation and that struggles may be due to oxygen deficiency rather than desire to disobey officer commands, may be pertinent, along with the duration of the restrain and the fact the decedent was shackled.  The court expressed no view on whether the use of force was excessive or whether the officers were entitled to qualified immunity, but remanded the summary judgment to the circuit court.

Three justices dissented, opining the court should either deny review, or grant review and have the matter briefed and argued before deciding it.  

Time to File Suit in State Court Is Tolled While Federal Action Is Pending, Through Mandate Issued in Appeal of Right

In Sales v. City of Tustin, published June 8, 2021, the Fourth District Court of Appeal, Division 3 reversed summary judgment in favor of the defendant city, granted based on the statute of limitations.  Plaintiff alleges her decedent fled an improper detention, was chased into traffic, and was killed.  On the last day to file a lawsuit under California law (six months after her claim was denied), the plaintiff filed a suit in federal court alleging federal and state causes of action.  The district court denied a defense summary judgment motion based on qualified immunity.  The defendants took an interlocutory appeal to the 9th Circuit.  That court reversed the denial of summary judgment.  On remand, the district court concluded that the appellate ruling resolved all of the federal claims in favor of the defendants, and entered judgment on those claims.  The court declined supplemental jurisdiction over the state law claims, and dismissed them.  That occurred in 2016.  The plaintiff appealed the result to the 9th Circuit.  The 9th Circuit affirmed the decision.  The court then denied a rehearing en banc.  The court issued its mandate on December 5, 2018.  The plaintiff refiled her state law causes of action in state court on December 19, 2018.  The trial court granted the defendants summary judgment on the ground that under 28 U.S.C. section 1367, the plaintiff's time to file her state court claim was tolled only until the district court dismissed the state law claims in 2016.

The appellate court concluded that the trial court interpreted section 1367 incorrectly.  Section 1367 governs supplemental jurisdiction over state law claims in federal court.  Subdivision (d) provides that the period of limitations for any state claim joined with federal claims shall be tolled while the claim is pending in federal court, and for a period of 30 days after it is dismissed.  The appellate court joined the majority of courts to extend the tolling deadline through the pendency of an appeal of right, through the mandate returning the appeal to the district court, and then for 30 days after the mandate.  That the appeal addressed only the dismissal of the federal claims, and not the state claims, did not matter; if the federal court had reversed judgment on the federal claims, the district court might have reasserted jurisdiction over the state law claims.

Government Code Section 821.6 Immunizes Officers for Failing to Cover Partially Nude Decedent During Investigation

In Leon v. County of Riverside, published May 27, 2021, the Fourth District Court of Appeal, Division 2 affirmed summary judgment in favor of the defendant county and deputies in a lawsuit alleging negligent infliction of emotional distress.  The plaintiff's husband was shot by a neighbor.  When a deputy arrived on the scene, he believed the decedent to be dead, but began rendering aid.  Shots rang out from neighboring property.  The deputy evacuated the area, forcing the plaintiff to leave.  When a second deputy arrived, the first deputy moved an SUV between the body and the source of the shots, and the second dragged the decedent behind the SUV.  As he did, the decedent's pants were pulled down, exposing his genitals.  The second deputy attempted chest compressions and announced the decedent dead.  More deputies and officers arrived, and nearly four hours after the first deputy arrived the shooter was found dead of a self-inflicted wound.  The body remained with its genitals exposed for approximately another four hours, when the coroner finished processing the body and collecting evidence.  The first deputy and lead investigator testified that they did not know why the body was not covered after the shooter was found dead.  The trial court granted summary judgment based on the immunities set forth in Government Code sections 815.2(b) and 821.6

The appellate court agreed that the statutes applied.  As interpreted by multiple appellate court opinions, Government Code section 821.6 immunizes the deputies from liability for any negligence in leaving the decedent's body exposed.  Section 821.6 immunizes public employees from liability for any injury-causing act or omission in the course of an investigation that may precede the institution and prosecution of a judicial or administrative proceeding.  In light of the investigation of the body, and statutory law barring moving a decedent, the acts for which the deputies were sued were part of their investigation.  Any negligence in leaving the body uncovered when it might have been uncovered is subject to the immunity.  Under Government Code section 815.2(b), the county cannot be held liable for the deputies' acts where the deputies are immune.  Government Code section 815 immunizes the county from any direct liability for negligence, because there is no statutory basis for that negligence.  Catsouras v. Department of California Highway Patrol was distinguishable, because the court in that case found that sharing photos of a decedent's remains was not part of official police business.  The court rejected an argument that the case law applying section 821.6 to investigations was wrongly decided, finding support for the statute in pre-Government Claims Act common law.

A concurring justice noted that the California Supreme Court had apparently interpreted section 821.6 to apply only to malicious prosecution, and that federal courts had followed that line of authority.  The justice agreed with the majority, however, that the lower courts had interpreted section 821.6 to apply to torts other than malicious prosecution.

Prison Officer Did Not Violate Clearly-Established Law by Listening in on Portions of Prisoners' Phone Conversations with Civil Attorneys

In Witherow v. Baker, published May 18, 2021, a divided 9th Circuit panel affirmed summary judgment for a prison officer in a suit under 42 U.S.C. section 1983 alleging violation of a prisoner's Fourth Amendment rights.  The prison unit the plaintiff was in did not allow prisoners to use wall phones.  The unit had a single portable phone, and each prisoner's use was limited to 20 minutes.  The phone did not have caller ID.  The officer would use a speaker and a flip switch to monitor the beginning of the call, to check whether the call was to an attorney or an attorney's office.  The officer would then stop listening.  Later in the call, the officer would check again, to see whether the prisoner had called someone else, and to make sure the prisoner was not depriving others of the phone by making unauthorized calls.  The district court granted the officer summary judgment, based on qualified immunity, on the grounds that she had not violated the plaintiff's Fourth Amendment rights, and that if she had violated any such right, the right was not clearly established

The panel majority ruled that the officer was entitled to qualified immunity on the second prong:  the right was not clearly established.  The plaintiff failed to identify any binding authority, or a consensus of law, that a prison officer listening in on a prisoner's phone call with a civil attorney violated the prisoner's Fourth Amendment rights.  The majority further concluded that there was no need to address whether the officer's actions had violated the Fourth Amendment, because the situation was fact bound (involving technology from 2007-2008); it was unclear whether violation of the attorney-client privilege would involve the Fourth Amendment; and prisoners can challenge similar practices by bringing suits for declaratory and injunctive relief.

A judge wrote an opinion concurring in part and dissenting in part.  The judge opined that the panel should address whether the conduct violated the Fourth Amendment, to develop the law on that subject.

"Community Caretaking" Exception to Warrant Requirement Does Not Apply to Homes

In Caniglia v. Strom, published May 17, 2021, the U.S. Supreme Court reversed a decision from the First Circuit Court of Appeals affirming summary judgment to police officers.  During an argument with his wife, the plaintiff placed a handgun on the dining room table and asked his wife to shoot him.  The wife left the home and spent the night at a hotel.  The next morning, she was unable to reach her husband by phone.  She called the police for a welfare check.  The responding officers went with the wife to the house.  The plaintiff was on the porch.  The officers believed the plaintiff was a threat to himself or others.  They called an ambulance.  The plaintiff agreed to go to the hospital for evaluation after the officers allegedly promised not to confiscate his firearms.  After the ambulance took the plaintiff away, the officers entered the plaintiff's home and seized two handguns.  The plaintiff sued the officers, alleging the officers violated his Fourth Amendment rights.  The First Circuit concluded that the officers' entry fell within a "community caretaking" exception to the Fourth Amendment's warrant requirement.  It relied on the decision in Cady v. Dombrowski, 413 U.S. 433 (1973).

The Supreme Court unanimously reversed.  The Fourth Amendment prohibits unreasonable intrusions onto private property.  Permissible invasions of the home and curtilage include valid warrants, certain exigent circumstances (including the need to render emergency assistance to an injured occupant, or protect an occupant from imminent injury), and acts any private citizens might do (such as knocking on a front door).  The "community caretaking" rule as applied to homes goes beyond what the Supreme Court has recognized.  Cady involved a warrantless search of a firearm in an impounded vehicle, rather than a home.  It was not an open-ended license to perform warrantless searches anywhere.  Three justices wrote separate concurring opinions to emphasize that officers retain the ability to enter homes to take reasonable steps to assist those inside a home in need of aid.

Alleged Police Violation of Miranda Rights Violated Clearly Established Fifth Amendment Rights, but Violation of Fourteenth Amendment Rights Not Clearly Established

In Tobias v. Arteaga, published April 27, 2021, a divided panel of the 9th Circuit Court of Appeals affirmed in part and reversed in part a district court decision denying a summary judgment motion based on qualified immunity.  Police arrested the plaintiff, then 13, on suspicion of murder.  At the police station, two detectives intensively questioned the plaintiff for 20 minutes before reading him his Miranda rights.  The plaintiff stated that he understood the rights.  The detectives showed the plaintiff security camera footage that they asserted showed the plaintiff.  The plaintiff said, "Could I have an attorney?  Because that's not me."  A detective responded, "But--okay.  No, don't worry.  You'll have the opportunity."  The detectives continued to question the plaintiff.  The two detectives then left the room, telling the plaintiff that his mother would be in to talk with him.  Instead, a third detective entered and questioned the plaintiff aggressively for 40 minutes.  The detective repeatedly told the plaintiff that his lack of confession was a "lie" and would make him look like a "cold blooded killer."  The plaintiff confessed.  A jury convicted the plaintiff of murder.  The state court of appeal reversed the trial court's ruling on a motion to suppress the confession as coerced.  On remand, the charges were dismissed.  All parties now agree that the plaintiff was not involved in the murder.  The plaintiff sued the detectives under 42 U.S.C. section 1983 for violation of the Fifth Amendment right against self-incrimination and Fourteenth Amendment substantive due process.  The district court denied the defendant detectives' motion for summary judgment on the ground that the facts, viewed in the light most favorable to the plaintiff, established violation of clearly-established law.

The panel majority upheld denial of qualified immunity on the claim that the detectives violated the plaintiff's Fifth Amendment right to counsel by continuing his custodial interrogation after he requested an attorney, and then using the resulting confession against him in his criminal case.  When a suspect makes an unambiguous request for an attorney, he is not subject to further questioning until a lawyer has been made available.  The plaintiff's statement was an unequivocal invocation of his right to counsel under clearly established law.  The third detective further violated the plaintiff's rights by engaging in an unconstitutionally coercive interrogation, by threatening the plaintiff would receive less favorable treatment for exercising his rights.    That the plaintiff was told he would be treated more harshly for "lying," rather than for failure to cooperate, did not make a difference.  When a suspect tries to cooperate by telling the truth, but the police continue to demand his "cooperation" by confessing, the law clearly established that the interrogation was coercive.  While the other two detectives did not directly participate in this part of the questioning,  there was evidence suggesting they observed the questioning and might be liable for failure to intervene.  The 9th Circuit remanded that issue to the district court.  While the coercive questioning might violate the Fourteenth Amendment, cases finding such interrogation violated due process involved longer interrogations.  Because the law was not settled on whether a shorter interrogation violated due process, the officers were entitled to qualified immunity on the Fourteenth Amendment claim.

A concurring and dissenting judge would have granted qualified immunity on the coercive questioning Fifth Amendment claim, on the ground that the law did not clearly establish the questioning was unconstitutionally coercive.

 

Verdict in Federal Lawsuit that Police Strip Search Was Reasonable Bars Negligence Liability for Strip Search

In Shuler v. City of Los Angeles, published April 5, 2021, the Second District Court of Appeal, Division 8 affirmed judgment on the pleadings for the defendant city.  Police officers stopped the plaintiff's car and detained her during a narcotics investigation.  They arrested her passenger on suspicion of drug dealing.  The officers took the plaintiff and her car to a police station.  An officer strip searched the plaintiff, told her to urinate in front of the officer, and kept her in a holding cell for two hours before releasing her without charges.  The plaintiff sued the city and officers in federal court.  She alleged violation of 42 U.S.C. section 1983, and state law claims including negligence.  The court bifurcated the claims and tried the section 1983 claims to a jury.  The jury found that the officers had arrested and strip searched the plaintiff, but that the arrest and search were reasonable and did not violate her Fourth Amendment rights.  The federal court then declined to exercise supplemental jurisdiction over the plaintiff's state law claims and dismissed them without prejudice.  The plaintiff then filed suit in state court asserting her state law claims.  The state court granted judgment on the pleadings on the ground that the verdict in the federal case barred the state law claims.

The appellate court agreed. Collateral estoppel applied.  The only element of collateral estoppel that the plaintiff disputed was whether the issues in the two proceedings were identical.  Hernandez v. City of Pomona (2009) 46 Cal.4th 501 held that a federal verdict that a police use of lethal force was reasonable under the Fourth Amendment barred a negligence action under California law for the same use of force.  Although this case involves a strip search instead of use of lethal force, the result is the same.  The plaintiff contended that because the federal jury was instructed it had to find the search was intentional to find liability, the verdict did not preclude a negligence claim.  But the intentional instruction did not relate to the issue of reasonableness.  It only required that the jury find the officers intentional strip-searched the plaintiff, rather than accidentally.  Whether the officers intentionally strip-searched her is not in dispute in the state court case.  The dispute is over the reasonableness of the strip search.  Since the federal jury found the search reasonable, and the reasonableness element is the same under state and federal law, the verdict that the search was reasonable bars the action.

Using Force against a Suspect to Stop the Suspect Is a Fourth-Amendment Seizure, even if the Suspect Evades Capture

In Torres v. Madrid, published March 25, 2021, the U.S. Supreme Court, 5-8 (with Justice Barrett taking no part in the decision), reversed a Court of Appeals ruling that a suspect's continued flight after being shot by police negates a Fourth Amendment excessive-force claim.  Officers executing a warrant at an apartment complex approached the plaintiff as she got into the driver's seat of her vehicle.  The plaintiff believed the officers were carjackers.  She hit the gas to escape.  The officers fired their pistols at her to stop her, hitting her twice.  She drove to a nearby parking lot, and stole a car to escape.  She was eventually arrested after she sought medical help.  She sued the officers under 42 U.S.C. § 1983 for use of excessive force.  She contended the shooting was an unreasonable seizure under the Fourth Amendment.  The district court granted the officers summary judgment, on the ground that the plaintiff was not seized under the Fourth Amendment.  The 10th Circuit affirmed.

The Supreme Court majority disagreed.  Reviewing common law (particularly debtor arrest law), the majority concluded that police touching of a person with the intent to arrest is an arrest, and thus a seizure under the Fourth Amendment, even if the person escapes.  The analysis does not change because the officers used force from a distance--firearms--to restrain the plaintiff.  What is required is corporal seizing or touching the defendant's body.  That can be accomplished by a bullet as by the tip of a finger.  The use of force standing alone is not a seizure, it must be accompanied by the intent to restrain, as opposed to force applied by accident or for some other purpose.  Because the officer's subjective intent and the suspect's subjective perception are not factors in the use of force analysis, the proper inquiry is whether the conduct objectively manifests an intent to restrain.  The seizure by force lasts only as long as the force is applied, unless the subject submits.  The majority rejected intentional acquisition of physical control of the suspect as the test.  In this case, the officers seized the plaintiff by shooting her with the intent to restrain her movement.

Three justices dissented.  They held that seizure of a suspect requires actual possession of the suspect.