Government Liability Update

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. 

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.