Government Liability Update

Officers Entitled to Qualified Immunity for Allegedly Exceeding Scope of Permission to Enter Home by Damaging Home

In West v. City of Caldwell, published July 25, 2019, a divided panel of the 9th Circuit reversed denial of summary judgment to a police officer based on qualified immunity. The police received a 911 call from the plaintiff's grandmother, reporting that the plaintiff's former boyfriend was in the plaintiff's house, that the former boyfriend might be threatening the plaintiff with a BB gun; that he might be high; and that the plaintiff's children were also in the house.  The police knew the former boyfriend was a gang member with felony warrants for violent crimes.  Four officers, including the defendant, went to the house, and received no reply when they knocked.  The defendant noticed the plaintiff walking down the sidewalk.  The defendant asked the plaintiff if the former boyfriend was in the house.  She said he might be.  The officer told the plaintiff that if the former boyfriend was in the house and she did not tell the police, she could get into trouble.  She told the defendant the boyfriend was in the house, although she was not sure if he was.  The defendant officer walked away to speak with other officers.  About 45 seconds later, the officer asked the plaintiff permission to enter the house and apprehend the boyfriend.  She nodded affirmatively, and gave the officer her key to the house.  She then called a friend who gave her a ride away from the house.  After repeatedly making announcements for the boyfriend to exit, the officers shot tear gas into the house.  They entered and searched the house, but did not find the boyfriend.  The plaintiff and her children were unable to live in the house for two months due to the tear gas damage and broken window from the search.  The plaintiff sued for unreasonable search and seizure and conversion.

The majority ruled that the defendant officer was entitled to qualified immunity as to the search and seizure counts.  The court assumed that the plaintiff's consent to enter was coerced; that the use of tear gas exceeded the scope of the permission; and that the search was unreasonable.  Nevertheless, no precedent clearly established that under the circumstances--including the passage of time between the alleged threat to the plaintiff and the consent, the fact that the plaintiff felt free to leave, and the potential danger posed by the felon inside the house--the officers' actions were unlawful.  The dissenting judge opined that the law had clearly established that the scope of consent did not include shooting tear gas into the house.

Warrantless Seizure of Firearms in Household of Person Detained for 72-Hour Observation Did Not Violate Fourth Amendment; Second Amendment Argument Barred by Issue Preclusion

In Rodriguez v. City of San Jose, published July 23, 2019, the 9th Circuit affirmed summary judgment for the defendant city, its police department, and a police officer in a lawsuit brought under 42 U.S.C. section 1983.  Officers responded to the plaintiff's 911 call for a welfare check on her husband.  The husband was ranting, mentioned shooting up schools, and stated he had a gun safe full of guns.  The officers detained the husband under Welfare & Institutions Code section 5150 for 72 hours observation. After the husband was removed from the house, the plaintiff confirmed that there were firearms in the house.  The officers found 12 firearms in the house--one registered to the plaintiff alone, the rest unregistered or registered to the husband.  The plaintiff objected to the removal of her personal handgun.  The officers confiscated all of the firearms.  The husband was evaluated at the hospital, admitted, and released a week later.  Later, the city filed a petition for forfeiture of the firearms.  The plaintiff intervened, asserting personal ownership of her handgun and community ownership of the others.   She asserted her Second Amendment right to keep and bear arms, since she was not prohibited from possessing or owning guns.  The court granted the city's petition.  The state court of appeal affirmed that the seizure did not violate the plaintiff's Second Amendment rights.  After the decision, the plaintiff changed the registration and ownership so that all the guns were in her name only, and obtained gun release clearances from the state department of justice.  The city declined her request to return the guns.  She then brought this lawsuit, joined by two gunowners' rights organizations.  She asserted violations of her Second Amendment and Fourth Amendment rights.

The 9th Circuit affirmed the district court's decision that the warrantless seizure of the firearms did not violate the Fourth Amendment. The public health and safety protection exception to the warrant requirement applied.  A seizure of a firearm in the possession or control of a person who has been detained because of an acute mental health episode responds to an immediate threat to community safety.  When asking whether the seizure falls within an exception to the warrant requirement, three factors must be balanced, based on all the facts available to an objectively reasonable officer:  The public safety interest; the urgency of that interest; and the individual property, liberty, and privacy interests.  Here, the seizure of the guns from the home affected a serious private interest in the personal property kept in the home.  But because the officers had probable cause to detain involuntarily an individual experiencing an acute mental health episode and send him for evaluation; the individual had threatened to use the firearms; and the officers did not know whether the hospital would detain the individual or keep him detained long enough to permit the officers to seek a warrant, the urgency of a significant public safety interest was sufficient to outweigh the significant property interest.

The 9th Circuit also concluded that the Second Amendment claim was precluded by the final decision of the state court, in which the plaintiff's Second Amendment rights were litigated.  The addition of the advocacy groups as plaintiffs did not change the issue preclusion analysis, because they lacked institutional standing.  They failed to show that the issue of whether a single gun owner's firearms should be returned either impeded their ability to carry out their mission or required them to divert substantial resources away from the organizations' preferred uses.

Issues of Fact Defeat Summary Judgment for Officer Shooting Suspected Knife Wielder Without Warning or Identifying Himself

In Nehad v. Browder, published July 11, 2019, the 9th Circuit affirmed in part and reversed in part summary judgment granted in favor of an officer and his employing city.  A store worker had called 911 because a man showed him an unsheathed knife and acted incoherent.  The dispatcher put out a call that a man was threatening people with a knife.  The defendant officer arrived while the man was walking down an alley from the store to the street.  The officer drove down the alley with his high headlight beams on but without sounding his siren or putting on flashing lights.  The officer exited his vehicle as the man walked toward him.  The officer did not turn on his body camera.  Eyewitnesses differed on whether the officer told the man to drop it.  The officer did not recall identifying himself as a police officer or warning the suspect.  Five seconds after exiting his vehicle, the officer shot the man in the chest, killing him.  Investigators did not find any weapon in the alley, although they found a knife sheath.  When shot, the manwas carrying a blue metallic pen.  The officer initially stated that he did not see any weapons when he shot the man.  Five days later, after meeting with an attorney and viewing surveillance footage, the officer told investigators that the man was "aggressing" the vehicle, walking quickly toward it, and that the officer thought the man had a knife.  The district court ruled the officer's use of force was objectively reasonable, and that the officer was entitled to qualified immunity because the law was not clearly established that using deadly force under the circumstances violated the Fourth Amendment.  It also granted summary judgment on the man's family's Fourteenth Amendment claim, because there was no evidence that the officer acted with an intent to harm unrelated to a law enforcement purpose.  The court also granted summary judgment on all state law claims.

The 9th Circuit affirmed summary judgment on the Fourteenth Amendment claim, because there was no evidence that the officer had used force for any reason but self-defense.  But it concluded that there was a genuine dispute of material fact on whether the officer's use of force was objectively reasonable.  Viewing the facts in the light most favorable to the plaintiffs, there were issues over the officer's credibility, whether the suspect posed a danger to anyone, whether the severity of the crime warranted deadly force, whether the officer gave or the man resisted any commands, the significance of the officer's failure to identify himself or give any warnings, and the availability of less intrusive means to subdue the man.  Further, because the law clearly established that using deadly force under the circumstances here, viewing the facts in the light most favorable to the plaintiffs, violated the Fourth Amendment, the issues of fact prevented summary judgment on the ground of qualified immunity.  There was sufficient evidence of Monell liability to raise a genuine issue of fact on that as well.  The issues of fact defeated summary judgment on the state law causes of action.

Recission of Peace Officer's Promotion During Probationary Period Did Not Entitle Officer to an Administrative Appeal

In Conger v. County of Los Angeles, published June 14, 2019, the Second District Court of Appeal, Division 1 affirmed a trial court decision denying a writ petition to a deputy sheriff.  The petitioner received a probationary promotion from Sergeant to Lieutenant.  During the six-month probationary period, the sheriff's department informed the petitioner he was under investigation for events occurring before the probationary period.  The department gave the petitioner notice it was releasing him from his probation, based on an alleged failure to report a use of force when he was a sergeant.  The petitioner requested a hearing under Government Code section 3304(b), part of the Public Safety Officers Procedural Bill of Rights,  The county civil service commission denied the request.  The petitioner challenged the denial.  

The appellate court agreed with the trial court that the petitioner was not entitled to writ relief.  Section 3304(b) entitles an officer who has successfully completed the probationary period a hearing before any punitive action or denial of promotion on grounds other than merit is taken against him.  The appellate court ruled that the decision to rescind the probationary promotion and return the petitioner to his previous position was a denial of promotion, not a demotion or punitive action.  The promotion was not yet peronanemnt, and the employer was still evaluating whether the officer deserved the higher position.  The denial was on merit-based grounds, since the alleged failure to report would bear on the petitioner's qualifications to serve as a lieutenant.  The petitioner failed to show that his negative probation evaluation could lead to future adverse consequences.  The statute therefore did not entitle him to a hearing.

Probable Cause for Arrest Precludes First Amendment Claim for Retaliatory Arrest

In Nieves v. Bartlett, published May 28, 2019, the U.S. Supreme Court, in a split opinion, reversed a 9th Circuit decision which itself reversed summary judgment for the defendant police officers.  During a winter sports festival in Alaska, one of the defendant officers was speaking with festival goers when the plaintiff told the goers they should not speak with the police.   The officer approached the plaintiff to explain the situation.  The plaintiff told him to leave. Several minutes later, the other defendant officer was talking with a teenager when the plaintiff allegedly approached, stood between the officer and teen, said that the officer should not speak with the minor, and stepped close to the officer.  The officer pushed him back.  The two defendant officers arrested him.  According to the plaintiff, after he was handcuffed, the first officer said, "[B]et you wish you would have talked to me now."  The state dismissed the criminal charges against the plaintiff.  He sued the officers under 42 U.S.C. section 1983 for violating his First Amendment rights by arresting him in retaliation for his speech.  The allegedly protected speech was his refusal to talk to the first officer and his intervention in the second officer's conversation with the teen.  The district court granted summary judgment on the ground that the officers had probable cause to arrest the plaintiff.  The 9th Circuit held that a plaintiff can prevail on a First Amendment retaliatory arrest claim even in the face of probable cause for the arrest.

The opinion of the court, in which five justices joined, was that a plaintiff must establish absence of probable cause to establish a retaliatory arrest claim.  If the plaintiff establishes lack of probable cause, the plaintiff must show that the retaliation was a substantial or motivating factor behind the arrest.  If that showing is made, the defendant can prevail only by showing that the arrest would have been initiated without respect to retaliation.  There is a narrow exception for circumstances where officers have probable cause to make arrests, but typically elect not to do so, as in jaywalking situations. Such situations pose the danger that officers may exploit their arrest power to suppress speech.  Therefore, the no-probable-cause requirement should not apply when a plaintiff presents objective evidence he was arrested when otherwise similarly-situated individuals not engaged in the same sort of protected speech had not been.  Under these rules, the plaintiff's retaliation claim was subject to summary judgment, because there was probable cause to arrest him, and because the evidence of the first officer's statement would not support a retaliatory arrest claim against the second officer.

Another justice, Thomas, concurred in the decision except for the exception to the no-probable-cause rule.  Justice Gorsuch concurred that absence of probable cause is not an absolute requirement and its presence not an absolute defense, but dissented from the rules the majority drew.  Justice Ginsburg concurred that the officer for whom there was no evidence of retaliation was entitled to summary judgment, but otherwise dissented.  Justice Sotomayor dissented, opining that probable cause should not be a defense.

The Anniversary Method of Calculating Deadlines Applies to the Statute of Limitations for Filing a 42 U.S.C. § 1983 action after a Minor Achieves Majority

In Shalabi v. City of Fontana, published May 21, 2019, the Fourth District Court of Appeal, Division 2 reversed a judgment against the plaintiff after a bench trial.  The plaintiff sued a police officer under 42 U.S.C. section 1983 for allegedly wrongfully shooting and killing the plaintiff's father when plaintiff was a minor.  The plaintiff turned 18 on December 3, 2011.  He filed his complaint on December 3, 2013.  The court held a bench trial on stipulated facts on the issue of whether the complaint was filed within the statute of limitations.  It concluded that the last day to file the suit was December 2, 2013, and that the lawsuit was time-barred.

The appellate court ruled that the trial court calculated the last day to file incorrectly.  Under section 1983, California's statute of limitations for personal injury actions--two years--applies.  California law controls the tolling of that statute of limitations.  Under Code of Civil Procedure section 352, a minor's cause of action is tolled until the minor turns 18.  The statute begins running on the minor's 18th birthday.  The two methods of calculating the statute of limitations after the tolling period ended are the anniversary method and the calendar method.  The trial court used the calendar method.  Under Code of Civil Procedure section 12, however, California law uses the anniversary method, under which the first day of the period is excluded and the last day is included.  Since the plaintiff's birthday on December 3, 2011 was the triggering date, that day is excluded, and the count starts with December 4.  Two calendar years from that date is December 3, 2013.  That date is included.  So the last day to file was December 3, 2013.  An 1884 California Supreme Court case held that the first day is counted, because the plaintiff has the entire first day of majority to file suit.  That case did not address section 12, and so is not binding authority on section 12's application.  

Because Law Did Not Clearly Establish Takedown of Person Keeping Officers Out of Home Was Excessive Force, Officers Entitled to Qualified Immunity

In Emmons v. City of Escondido, published April 25, 2019, the 9th Circuit Court of Appeals affirmed summary judgment in favor of the defendant police officers in a 42 U.S.C. section 1983 case.  Officers were asked to conduct a welfare check on a woman and two children.  The month before, the woman's husband had been accused of domestic violence.  When the officers arrived at the apartment house where the woman lived, the woman's roommate and children were outside the apartment.  The roommate told the officers everything was fihe and that they were not needed.  The officers proceeded to the apartment.  The woman and her father were inside.  The woman refused to allow the officers to enter.  The father emerged from the apartment.  According to the father, he stepped out of the apartment with his back to the exterior hallway and began to close the door.  The officers' bodycams recorded one of the officers telling the man not to close the door, to put his hands behind his back, and to get on the ground.  As the officer said this, he grabbed the father and threw or tackled him to the ground.  The 9th Circuit initially ruled that the officers were not entitled to qualified immunity as to the use of force.  The Supreme Court granted certiorari, reversed as to one officer, and vacated and remanded as to the officer who performed the takedown.

On remand, the 9th Circuit concluded the officer was entitled to qualified immunity.  The law did not clearly establish that stopping and taking down a man under the circumstances here was excessive force.  Case law establishing the right to be free from use of force in response to mere passive resistance was not directly on point; otherwise the Supreme Court would not have vacated the denial of summary judgment.  No case was so precisely on point as to clearly establish the use of force was unconstitutional.

Statute of Limitations on Fourth Amendment Action Is Not Tolled During Plaintiff's Successful Appeal from Criminal Conviction; Reversal Based on Exclusionary Rule Is Not Favorable Termination for Malicious Prosecution Purposes

In Mills v. City of Covina, published April 24, 2019, the 9th Circuit Court of Appeals affirmed a district court's dismissal of a plaintiff's 42 U.S.C. section 1983 lawsuit.  In 2013, the plaintiff was stopped and searched. Incriminating evidence was found in his car.  In the criminal prosecution against him, the plaintiff moved to suppress the evidence based on lack of probable cause to stop and search him.  The motion was denied.  During the trial, the plaintiff argued the evidence was planted.  He was convicted. In 2016, the California Court of Appeal reversed the conviction, on the ground there was no probable cause for the stop and search, and ruled the suppression motion should have been granted.  Because the ruling left no evidence to support a conviction, the appellate court remanded for reversal.  The plaintiff then sued the arresting officer, the defendant city, and the police chief for Fourth Amendment violations based on the stop, search, and arrest; a malicious prosecution claim under section 1983; and a Monell claim based on malicious prosecution.  The district court dismissed the Fourth Amendment claims as time-barred.  The court later granted the City and arresting officer judgment on the pleadings as to the malicious prosecution and Monell claims.

The 9th Circuit agreed the Fourth Amendment claims were time-barred.  The claims accrued in 2013 when the search was conducted and the plaintiff arrested.  Government Code section 945.3 tolled the statute of limitations during the criminal proceedings in the trial court.  The plaintiff contended that during his appeal, Code of Civil Procedure section 356 tolled the statute for suing on the Fourth Amendment claims, because those claims were barred by Heck v. Humphrey until the conviction was set aside.  Section 356 tolls statutes of limitations during the time the plaintiff is legally prevented from taking action to protect his rights.  But section 356 requires a definitive bar to commencing an action.  The Heck bar did not prevent the plaintiff from commencing a section 1983 action for the Fourth Amendment violation.  Even if the district court dismissed the action at that time based on Heck, the plaintiff would have been able to revive the action once the conviction was overturned.  The two-year statute of limitations thus ran on the Fourth Amendment claims before the plaintiff filed suit.

The malicious prosecution and Monell claims were not time-barred.  Further, the district court erred in ruling collateral estoppel barred the claim, because his conviction, which was eventually reversed, was not a final ruling.  But the district court correctly ruled that the reversal was not a favorable termination of the criminal action.  Because the state appellate court reversed on the exclusionary rule, there was never a ruling that the plaintiff did not commit the criminal offense.  He therefore could not meet the favorable-termination element of malicious prosecution.

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.)