Government Liability Update

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. 

Although Issues of Fact on Use of Force Defeat Summary Judgment on Qualified Immunity, Officer Entitled to Qualified Immunity on Issues Where Facts Are Not Genuinely Disputed

In Foster v. Hellawell, published November 20, 2018, a divided Ninth Circuit panel affirmed in part and reversed in part a district court order denying a police officer summary judgment based on qualified immunity.  A 911 call was received that a man had displayed a gun and was walking toward stores that had previously been robbed.  The defendant officer arrived at the scene and saw plaintiffs' decedent, who matched the description and was near one of the stores.  The officer identified himself and asked to see the decedent's hands.  The officer was unsure whether he had his gun drawn.  The decedent ran.  The officer gave chase.  During the pursuit, the officer fired at the decedent, fatally wounding him.  The survivors sued the officer under 42 U.S.C. § 1983 for violating the Fourth and Fourteenth Amendment. 

The Ninth Circuit majority affirmed denial of summary judgment on the claim of excessive force under the Fourth Amendment and the claim for denial of substantive due process under the Fourteenth Amendment.  The evidence created a genuine dispute of fact on whether the decedent had or displayed a gun while he ran. It is clearly established that shooting a fleeing suspect in the back violates the Fourth Amendment.  If the factual disputes on whether the suspect had a gun are resolved against the officer, the officer would not be entitled to qualified immunity.  The court ruled it lacked jurisdiction to adjudicate the question of whether the evidence was reliable enough to support the district court's conclusion that a genuine dispute existed.  On the question of whether the officer had reasonable suspicion to make an investigative stop of the decedent, however, the court found no genuine dispute of fact and that the officer was entitled to qualified immunity.  The 911 caller's information, as corroborated by the officer's observations, had sufficient indicia of reliability to support qualified immunity for the officer's conclusion of reasonable suspicion.  The court also found that the officer was entitled to qualified immunity for approaching the decedent with gun drawn (but not pointed at the suspect).  The law did not clearly establish that doing so constituted excessive force.

 A dissenting judge opined that, viewing the facts in the light most favorable to the plaintiffs, there was no evidence that the officer violated the Fourteenth Amendment by using force for a reason other than a legitimate police purpose.

Officer Violated Fourth Amendment by Entering Home under Ruse for Administrative Inspection, but Is Entitled to Qualified Immunity

In Whalen v. McMullen, published October 30, 2018, the 9th Circuit affirmed summary judgment in favor of a Washington State Patrol detective in a suit alleging the officer conducted a search of the plaintiff's house that violated the Fourth Amendment.  The plaintiff was receiving Social Security Disability benefits.  A task force that investigates potential social security fraud, investigated the plaintiff.  The task force designates investigations as either civil, criminal, or administrative.  As was common for administrative investigations, the defendant investigating detective did not obtain a search warrant, and used a ruse to communicate with the plaintiff:  the officer stated he was conducting a law enforcement investigation of identity theft.  The plaintiff spoke with the officer in front of her house, and then invited him inside.  The officer wore two hidden video cameras.  The officer spoke with the plaintiff for an hour, then left.  Based on the information the officer provided, the plaintiff's benefits were denied in part.  She was not subject to any civil or criminal action.  The plaintiff alleged that the portion of the detective's encounter with her inside her home violated the Fourth Amendment.  The district court granted the detective summary judgment based on qualified immunity.

The 9th Circuit ruled that the entry into the home, without a warrant, with hidden video cameras, and under cover of a ruse, violated the Fourth Amendment as an improper warrantless search.  It distinguished cases where, as a condition of receiving benefits, people had to allow warrantless entry into their homes, because in those cases the grounds for the entry are transparent.  Here, because the investigator identified himself as a law enforcement officer, the investigation was under a ruse and the plaintiff did not know about the video cameras, the investigator gained entry by invoking the individual's trust in her government, and then betraying it.  But because no precedent clearly established that the detective's actions would violate the Fourth Amendment, the detective was entitled to qualified immunity.

POBRA Deadline to Complete Administrative Investigation Tolled until Final Determination Made in Criminal Investigation

In Bacilio v. City of Los Angeles, published October 25, 2018, the Second District Court of Appeal, Division 2 affirmed a trial court decision on an administrative mandamus petition.  In  August 2011, a witness accused two police officers of misconduct that could give rise to both criminal and administrative liability.  Internal Affairs investigated the matter, and in June 2013 the investigator presented his findings to the District Attorney's office.  In August 2013, a deputy DA interviewed the complaining witness, and afterward commented that she was not going to file against the officers and that it was okay to administratively interview the officers.  In October 2013, the DA's office sent Internal Affairs a charge worksheet officially declining to file charges against the officers.  In September 2014, the LAPD notified the petitioner officer that Internal Affairs was seeking an official reprimand against him, and in November 2014 it brought administrative charges against him.  One of the charges against him was sustained, upheld in an administrative hearing, and upheld by the trial court.  The officer contended that the charge was time-barred because the department did not notify him of the potential discipline within the one-year limitations period of Government Code section 3304, subdivision (d)(2)(A), part of the Peace Officer's Bill of Rights.

The appellate court ruled that the notice was timely.  Section 3304 tolls the one-year period during the time that a criminal investigation or prosecution is pending against any officer involved in the matter.  The court interpreted this tolling period to run until there is a final determination whether to prosecute.  The court affirmed, as supported by substantial evidence, the trial court's determination that there was no final determination until the DA provided the worksheet, despite the DDA's earlier statement that charges would not be filed.

Eighth Amendment Excessive Force Claim Does Not Require Proof That Officer Derived Pleasure from Using Force

In Hoard v. Hartman, published September 13, 2018, the 9th Circuit found a jury instruction in an inmate's 42 U.S.C. § 1983 case alleging a guard used excessive force against him to be plain error, requiring reversal and retrial even though the plaintiff's counsel failed to object to the instruction.  The district court instructed the jury that to succeed on his Eighth Amendment excessive force claim, the plaintiff had to prove the guard acted "maliciously and sadistically for the purpose of causing harm" when he used force.  The jury requested a definition for "maliciously and sadistically."  The plaintiff's counsel concurred with the court's definition of "maliciously" as "‘having or showing a desire to cause harm to another" and "sadistically" as "having or deriving pleasure from extreme
cruelty."  The jury found for the defense.

The 9th CIrcuit held that the court's requirement that the plaintiff find that the guard had a desire to cause harm and derived pleasure was plain error.  Although Supreme Court cases have used the terms "maliciously and sadistically," and the 8th Circuit has interpreted this as a requirement for a use of excessive force that violates the Eighth Amendment, the 9th Circuit disagreed and held that the terms were merely rhetorical devices for conveying that the claim required a showing of specific intent to harm.

Female Officer Violated Clearly-Established Law by Observing Female House Inhabitant Use Bathroom During Execution of Search Warrant for House

In Iaone v. Noll, the 9th Circuit Court of Appeals affirmed denial of summary judgment to an IRA Agent in a 42 U.S.C. section 1983 lawsuit alleging the agent violated the plaintiff's Fourth Amendment rights.  The agent was part of a group of agents executing a search warrant for the plaintiff's house.  The agents informed the inhabitants that they were free to leave during the search, but would not be allowed to return.  The male inhabitant used the bathroom.  A male agent escorted him to the bathroom, searched the room, then stood outside the closed door while the man used the facilities.  Later the female inhabitant asked to use the bathroom.  The defendant agent insisted on staying inside the bathroom, ordered the female inhabitant to remove her clothes, and then faced the woman while she used the toilet.  She sued the agent.

The 9th Circuit agreed that the agent had violated the plaintiff's Fourth Amendment rights, and was not entitled to qualified immunity.  The majority, citing a series of 9th Circuit cases involving officers of one gender observing persons of another gender nude (and in one case using the bathroom), concluded that, regardless of gender, case law established at the time of the incident that observing an undetained person in her own home while she used the bathroom was a significant intrusion into her privacy.  The law further established that the search warrant for the premises did not justify searching an individual on the premises absent reasonable suspicion the person is armed and dangerous.  None of the agent's justifications for the observation were supported by the circumstances.

A concurring judge disagreed that cases limiting officers of the opposite gender from viewing persons naked clearly established that a female officer observing a female violated the Fourth Amendment.  But the judge agreed that the law clearly established the search warrant for the house did not justify the agent's search of the inhabitant absent reasonable suspicion.

Officers Violated Fourth Amendment and Is Liable under State Law for Arresting Middle-School Students to Teach Them a Lesson

In Scott v. County of San Bernardino, published September 10, 2018, the 9th Circuit affirmed summary judgment granted to the plaintiffs, three middle-school students.  The three students, 12- and 13-year-old girls, went to school officials to talk about another student's bullying and threats toward them.  A school administrator asked one of the defendants, a deputy who was a school security officer, to come to the campus to talk to the girls and the girl they complained about.  He intended to mediate the conflict.  WIthin a few minutes, however, he decided that the girls were being disrespectful.  He decided to arrest them, to prove that he "wasn't playing around," "to prove a point" and "to make [them] mature a lot faster."  He and another deputy defendant handcuffed the girls.  The allege aggressor was released to her father on campus.  The others were driven in a police vehicle to  the sheriff's department, where they were interviewed and released to their parents.  No charges were filed.  At trial, the district court granted the plaintiffs summary judgment both on their 42 U.S.C. § 1983 claim and their state law false arrest claim.

The 9th Circuit agreed that the deputies were liable.  New Jersey v. TLO ruled that the Fourth Amendment protects students, subject to a "special needs" exception under which warrantless searches do not violate the Fourth Amendment if the actions are justified at their inception and reasonably related in scope to the circumstances that justified the actions.  The arrests violated both parts of the test.  The actions were not justified at their inception.  The deputies had no specific information any of the arrested girls had done anything.  Further, under the special needs exception, the officers' subjective motivation may be considered.  The deputies' stated reasons for the arrest did not provide justification for arrest.  Further, handcuffing and arresting middle-school girls was an unreasonable response to the school's need.  Because the law was clear that the deputies' arrest violated the Fourth Amendment, they were not entitled to qualified immunity.  Under state law, none of the statutes under which the deputies justified the arrest applied.  The district court therefore properly granted summary judgment on the state law false arrest ground as well.

While Police Department Did Not Retaliate against Fired Employee for Exercising First Amendment Rights, Requiring Her to Sign Agreement Not to Criticize City, Department, or Employees Was Unconstitutional Prior Restraint

In Barone v. City of Springfield, published September 5, 2018, the 9th Circuit Court of Appeals affirmed in part and reversed in part a defense summary judgment in this 42 U.S.C. § 1983 lawsuit.  A police department community service officer served as community liaison to the city's minority communities.  Members of the Latino community complained to her of racial profiling.  The officer became the subject of internal affairs investigations.  After the investigations began, the officer spoke at a community event, in uniform.  The department paid her to be present, and her presence on behalf of the police department was advertised.  At the event, she answered a question from the audience about increasing racial profiling complaints by stating she had heard such complaints.  A week later, the police chief placed her on administrative leave for alleged untruthfulness in the two internal affairs investigations.  The department eventually informed her she had to sign a "last chance agreement" to keep her job.  The agreement barred her from saying or writing anything negative about the city, the department, or the department's officers.  It permitted her to report complaints involving discrimination or profiling by the department.  She refused to sign the agreement, and was terminated.  She sued the department for First Amendment retaliation and imposing an unlawful prior restraint.

The 9th Circuit agreed with the district court that the defendants were entitled to summary judgment on the First Amendment retaliation claim.  Under the facts, the plaintiff spoke in her capacity as a public employee when she spoke at the community event.  Her speech was therefore not protected by the First Amendment.  The 9th Circuit reversed the district court's conclusion that the last chance agreement was not an unlawful prior restraint.  Applying the Pickering standards for limitations on public employee speech, a restriction on criticizing the city, the department, or the department's officers was overbroad, since it covered both speech as an employee and speech as a private citizen.  The speech involved a subject of public interest.  The burden shifted to the defendants to justify the restriction.  The department's interests in protecting the department from disrepute and preventing employee misconduct did not justify the broad restrictions.

Detective Violated Clearly-Established Law by Failing to Reveal to Prosecutor That Police Officer Sister of Key Witness Believed Sister to Be Liar

In Mellen v. Winn, published August 17, 2018, the 9th Circuit Court of Appeals reversed summary judgment in favor of the defendant police detective.  When the detective was the lead investigator of a murder, a key witness told the detective that the plaintiff had confessed to involvement in the murder.  One of the detective's fellow police officers was a sister of the key witness.  There was evidence (which the detective disputed) that the officer told the detective her sister was the biggest liar she had ever met in her life, and that she never believed anything the sister said.  The detective did not inquire further into the basis for the officer's opinion about her sister.  The detective did not communicate these remarks to the prosecutor.  At the criminal trial, there was extensive evidence that the key witness was not credible.  The jury nevertheless convicted the plaintiff.  She was sentenced to life without possibility of parole.  She served almost two decades of her sentence until the officer's account of her sister's credibility came to light, and evidence was uncovered that exonerated the plaintiff.  She sued the detective for violating her constitutional right to due process by failing to comply with the detective's obligation under Brady v. Maryland, 373 U.S. 83 (1963), and Giglio v. United States, 405 U.S. 150 (1972) not to withhold impeachment evidence.  The district court granted the detective summary judgment based on qualified immunity.

The 9th Circuit held that, as a matter of law, the detective withheld material impeachment evidence under Brady and Giglio.  Since the key witness's testimony was the only evidence that linked the plaintiff to the murder, and the witness's testimony that the plaintiff confessed to the murder was so powerful, evidence that a police officer sibling considered the witness an untrustworthy liar was material.  Even though there was other evidence at the criminal trial putting the witness's credibility at issue, that did not relieve the detective of the duty to turn over all material impeachment evidence.  The appellate court found a triable issue of fact on whether the detective was deliberately indifferent to her duties under Brady/Giglio.  Her failure to investigate further, evidence the detective embellished the witness's written statement by adding details not described in the witness's written statement, and other actions demonstrating arguable overzealousness raised a jury issue on whether the detective was deliberately indifferent.  The 9th Circuit also held that the district court abused its discretion in excluding the opinion of the plaintiff's police practices expert that a reasonable officer would have believed the evidence relevant.  The evidence did not go to the legal conclusion of whether the detective acted reasonably; it went to the norms of police practice.

Pursuit Immunity Does Not Require 100% Certification by Agency's Officers

In Ramirez v. City of Gardena, published August 13, 2018, the California Supreme Court affirmed summary judgment in favor of the defendant city in a wrongful death suit arising out of a police pursuit.  In doing so, it resolved a split in authority between the lower court's decision and the one in Morgan v. Beaumont Police Dept. (2016) 246 Cal.App.4th 144.  Vehicle Code section 17001 imposes liability on public entities for negligent or wrongful acts or omissions by public employees operating motor vehicles in the scope of their employment.  Vehicle Code section 17004.7 creates an immunity to that liability for injuries occurring during police pursuits if the entity adopts and implements a vehicle pursuit policy that meets the requirements of that statute.  Subdivision (b)(2) of section 17004.7 requires that promulgation of the policy include " a requirement that all peace officers of the public agency certify in writing that they have received, read, and understand the policy."  The subdivision further provides that failure of an individual officer to sign a certification "shall not be used to impose liability" on an officer or entity.  The question was whether the statute required every officer in a department to certify that he or she had received, read, and understood the policy.

The Supreme Court agreed with the lower court that the answer was no.  It interpreted the statutory language to mean that the policy must include a requirement that all of the officers certify in writing, not that the immunity will not apply if a single officer does not so certify.  If the Legislature had required otherwise, it would have said so.  The alternative interpretation would place a heavy burden on large police agencies by eliminating immunity, despite conscientiously implementing the policy, if a single officer refused or failed to certify receipt, reading, and understanding.  The court did not rely on the "shall not be used" language, since that appears to relate to imposing liability rather than on the existence of immunity.  The court disapproved the Morgan decision to the extent it was inconsistent with this decision.