Government Liability Update

Prison Officials Not Entitled to Qualified Immunity for Confining Inmate in Unsanitary Cells; Eighth Amendment Violation under Facts Is "Obvious"

In Taylor v. Riojas, published November 2, 2020, the Supreme Court reversed a circuit court's ruling that correctional officials were entitled to summary judgment in a 42 U.S.C. section 1983 case.  The inmate alleged that for six days he was confined to two unsanitary cells.  The first was allegedly covered nearly floor to ceiling in massive amounts of feces.  The second was frigidly cold, had no bunk, and had only a clogged drain in the floor to dispose of bodily wastes.  The plaintiff was allegedly confined without clothing and had to sleep naked in sewage.  The circuit court held that the conditions violated the inmate's Eighth Amendment right to be free of cruel and unusual punishment; but that the prison officials were entitled to qualified immunity, because the law was not clearly established that prisoners could not be housed in cells teeming with human waste for six days.

The Supreme Court ruled that the circuit erred in granting qualified immunity on that basis. No reasonable correctional officer could have concluded that, under the extreme circumstances of this case, it was constitutionally permissible to house the inmate in such deplorably unsanitary conditions for such an extended period of time.   The circuit cited no evidence that the confinement was compelled by necessity or exigency.  There was no evidence the conditions could not be mitigated in degree or duration.  There was evidence, based on officers' statements, that they were deliberately indifferent to the condition of the cells.  Other case law was too dissimilar to create any doubt about the obviousness of the inmate's right.

Justice Thomas dissented, but did not write a separate opinion.  Justice Barrett did not take part in the consideration or decision.  Justice Alito concurred but opined the court should not have granted review.

Although Use of Less-Lethal Force on Armed Suspect Refusing to Raise Hands Reasonable, Issue of Fact Exists on Whether Officer Using Foot to Force Non-Resisting Suspect Down Reasonable or Subject to Qualified Immunity

In Cortesluna v. Leon, published October 27, 2020, a split 9th Circuit Court of Appeals panel affirmed in part and reversed in part summary judgment for the defendant police officers and city in a 42 U.S.C. section 1983 case.  A 911 operator received a call from a 12-year-old that her mother's boyfriend was carrying a chainsaw and sawing his way into the room where she, her sister, and her mother had barricaded themselves.  Officers were dispatched.  When they approached the home, they saw the suspect holding only a beer.  Police knocked on the front door, identified themselves, and told the suspect to come to the front door.  The suspect emerged from a sliding glass door near the front door, holding a large metal object.  The officers ordered the suspect to drop the object.  He did.  An officer said, "I'm going to hit him with less-lethal," and told another officer to get out of the way.  Officers ordered the suspect to come out, put his hands up, and walk toward them.  He complied.  The officers told him to stop and get on his knees.  An officer saw a knife in the front left pocket of the suspect's sweatpants.  The officer told the suspect not to put his hands down, and to put his hands up.  The suspect turned his head toward the officer, lowered his head, and lowered his hands.  An officer shot the plaintiff with two beanbag rounds.  The suspect then raised his hands.  The officers ordered him to get down.  As the suspect lowered himself to the ground, an officer used his foot briefly to push the suspect to the ground.  He then pressed his knee against the suspect's back and handcuffed him.  A video of the incident appears at https://cdn.ca9.uscourts.gov/datastore/opinions/media/19-15105-Cortesluna-Videotape.mp4  The suspect sued the officers and city for use of excessive force.  The district court granted all of the defendants summary judgment.

The majority affirmed summary judgment for the use of the less-lethal bean bag shotgun.  It concluded under the circumstances--the suspected crime, the knife in the pocket, the suspect's failure to obey orders to keep his hand raised--the use of force was objectively reasonable.  As for the knee on the back, the majority found a genuine issue of fact on whether the use of force was reasonable.  Viewing the facts in the light most favorable to the plaintiff, a reasonable jury could find that the suspect was not resisting, that the knife was blade-up and could not be grabbed and used, and that the knee was applied with enough pressure to cause the suspect pain.  Because existing precedent held that use of a knee on a suspect under similar circumstances violated the Fourth Amendment, the majority held, the officer was not entitled to qualified immunity.  The majority affirmed dismissal of state law claims against the officer who used the less-lethal weapon and reversed the dismissal as to the officer who used his knee.

A judge dissented from the portion of the opinion affirming summary judgment in favor of the officer who used the less-lethal weapon, opining that issues of fact prevented a finding that the use of force was reasonable.  Another judge dissented from the portion of the opinion reversing summary judgment as to the officer who used his knee.

Officer Did Not Violate Clearly-Established Law by Using Deadly Force on Suspect Approaching Previous Assault Victim with Drawn Knife

In Ventura v. Rutledge, published October 22, 2020, the 9th Circuit Court of Appeals affirmed summary judgment granted to a police officer in a 42 U.S.C. section 1983 case.  In 2015, the mother of the decedent's children called 911 and reported that the decedent had hit her and the decedent's mother.  The call was classified as a violent domestic disturbance.  As the defendant officer was interviewing the reporting party, the decedent began walking up the sidewalk toward the party's home.  The reporting party told the officer, "That's him."  She moved behind trash cans.  The officer issued several orders to "stop."  The decedent continued approaching, and drew a knife.  The decedent said, "Is this what you wanted?"  He continued to approach.  The officer shouted, "Stop or I'll shoot."  The decedent did not stop.  The officer shot and killed the decedent.  The decedent was within 10-15 feet of the reporting party when the officer fired.  The district court ruled that the officer was entitled to qualified immunity.

The 9th Circuit agreed.  The court resolved the qualified immunity issue on the second prong of the immunity:  whether the officer's use of force violated clearly-established law.  As of 2015, the court determined, the law had not clearly established that using deadly force against a suspect who was advancing with a knife toward the woman he had reportedly just assaulted, and who ignored an officer's repeated commands to stop, amounted to constitutionally excessive force.

Time to bring Monell Claim Based on Officer's Conduct Tolled until Charges against Plaintiff Dismissed

In Lockett v. County of Los Angeles, published October 2, 2020, the 9th Circuit, ruling on an interlocutory appeal, affirmed denial of a motion to dismiss a Monell claim in a 42 U.S.C. section 1983 case on statute of limitations grounds.  On January 1, 2016, officers from the defendant county arrested the plaintiff.  The plaintiff alleges the officers used excessive force in arresting him.  On January 20, 2016, the plaintiff was charged with attempted murder.  He was held in custody until August 2, 2016, when the charges were dropped.  On July 2, 2018, the plaintiff brought his suit.  The plaintiff alleged that the defendant county tolerated and ignored racially motivated cliques and gangs that led to the alleged use of excessive force.  Because the plaintiff sued two years and five months after his arrest, the defendant argued that the two-year statute of limitations under Code of Civil Procedure section 335.1, which applies to section 1983 actions, barred the Monell claim.  The district court held that the claim was tolled while the plaintiff was in custody.

The 9th Circuit agreed.  Under Government Code section 945.3, no person charged with a criminal offense may sue a peace officer or employing public entity for damages based upon peace officer conduct relating to the offense for which the accused is charged while the charges are pending before a superior court.  Section 1983 charges are tolled by section 945.3 while criminal charges are pending.  Here, "based upon" means "but for" causation.  Section 945.3 tolls the statute when the "but for" cause of the claim is the conduct of the peace officer.  A Monell claim cannot be brought unless the plaintiff proves that a peace officer committed an underlying constitutional violation.  Thus, in this case, the officers' alleged conduct in using excessive force is the "but for" cause of the plaintiff's Monell claim.  His claim was therefore tolled while his criminal charge was pending.

Law Clearly Established That Shooting Suspect after Suspect Wounded Officer, but Danger Passed Violated Fourth Amendment, but Fourteenth Amendment Not Violated; No Clear Error in Admitting PTSD Evidence on Recollection Issue

In Lam v. City of Los Banos, published September 25, 2020, a divided panel of the 9th Circuit Court of Appeals affirmed in part and reversed in part denial of an FRCP 50(b) motion after jury verdict.  The defendant officer was called to the plaintiff's house to assist the plaintiff in dealing with his son, who was displaying mental illness symptoms.  When the officer and plaintiff came to the son's room, the son grabbed a pair of scissors and stabbed the officer.  The officer shot the son in the leg.  He and the plaintiff retreated down a hallway.  The officer's firearm jammed, and he used a method to clear the jam.  He then shot the son again, fatally.  Before trial, the officer moved in limine to bar evidence that he had suffered from post-traumatic stress disorder two years before the incident.  The district court denied the motion, without prejudice to objecting to the evidence at trial. The defendant did not renew the objection at trial. The jury found that the son had stabbed the officer; that the officer had retreated; and that the son did not approach the officer with scissors before the officer filed the second, fatal shot.  The jury found that the officer used force with an intent to harm.  The officer was found liable for violating the decedent's Fourth Amendment rights and the plaintiff's Fourteenth Amendment right to familial relationship.  

The panel majority affirmed the denial of the Rule 50(b) motion as to the Fourth Amendment claim.  Although the evidence established that the first use of deadly force, when the son stabbed the officer, was probably reasonable, the officer's use of deadly force after he and the plaintiff had retreated and the son was no longer armed, after the officer had time to clear his weapon, and in the absence of a warning to the son, supported the jury's finding that the use of force for the second shot was unreasonable.  The majority also ruled that denial of qualified immunity was proper, because the second use of force violated clearly established law.  Precedent from the Ninth Circuit had established that use of deadly force toward a suspect who had previously been armed or wielded a weapon, but was no longer doing so at the time force was used, was unreasonable.  Similarly, precedent established the fact that a suspect had wounded an officer or other person did not render use of deadly force against a suspect who no longer posed a threat reasonable.  The panel unanimously ruled, however, that the evidence did not support the finding of liability under the Fourteenth Amendment.  The time that passed was not sufficient for deliberation before the second shot was fired, so the test for violation of the Fourteenth Amendment--whether the conduct shocked the conscience--was whether the officer used force with an intent to harm that was unrelated to a legitimate law enforcement objective.  The jury's finding of acting with an intent to harm was not sufficient.  There was no evidence the officer used the force to bully the suspect, or out of retaliation.  Finally, the majority ruled that because the defendant did not renew the objection to the PTSD evidence, it could constitute error only if the district court committed plain error in allowing it.  Because the officer's ability to recall and self-report the events was at issue, the district court did not commit plain error in allowing the evidence.

The dissenting judge opined that because no previous case was sufficiently similar to the facts of this matter, the law did not clearly establish the second shot was unreasonable, and thus the officer was entitled to qualified immunity.  The judge also opined that allowing the PTSD evidence in was plain error absent evidence the officer suffered from PTSD at the time of the incident.

Strip Search of Prison Visitor without Giving Visitor Option of Leaving Violates Fourth Amendment, but Law Was Not Clearly Established

In Cates v. Stroud, published September 25, 2020, the 9th Circuit Court of Appeals affirmed summary judgment for defendants in a lawsuit brought under 42 U.S.C. section 1983.  The plaintiff went to a prison to visit her incarcerated boyfriend.  Before she arrived, correctional officers received a tip that the plaintiff might try to bring drugs into the prison. A correctional officer obtained a warrant to search the plaintiff's "person" and vehicle and seize any illegal controlled substances or narcotics.  The warrant was never executed.  When the plaintiff arrived at the prison, she signed a consent form to search of her person.  Two correctional officers led the plaintiff to an administrative building, where a female correctional officer strip-searched the plaintiff.  At no time before or during the strip-search was she told she was free to leave.  The officers detained the plaintiff while they searched her car.  The officers then told the plaintiff they had a search warrant, but that it did not include her cellphone.  She denied the officers permission to search her phone.  The officers then terminated the plaintiff's visit to the prison.

The panel reviewed the law concerning searches of prison visitors, and the holdings of other circuits on the subject.  The panel adopted the holdings of multiple circuits (and rejected the holding of another) and held that strip searches of prison visitors based on reasonable suspicion may be carried out only if the prison gives the visitor the option of leaving the prison rather than being searched.  Since the purpose of the search is to prevent contraband from being introduced into the prison, the need to do so does not outweigh the intrusiveness of the search if the visitor leaves the prison without accessing secure areas of the prison.  But because there was no previous Ninth Circuit ruling on this issue, or a robust body of case law from other circuits, and the rule was not sufficiently "obvious,"  the law on this point was not clearly established.  The correctional officer who carried out the search was therefore protected from liability under the Fourth Amendment by qualified immunity.

The panel rejected the argument that the officers violated the Fourth Amendment when they detained the plaintiff while searching her car; the Fourth Amendment permits a brief detention during a search.  The officers did not violate her due process rights by failing to give her a copy of the search warrant because the search warrant was not executed.

If No Single Police Officer in Chase or Use of Force Was Liable in Tort, Plaintiff Cannot Argue Combined Actions of Officers Were Unreasonable and Rendered City Liable

In Koussaya v. City of Stockton, published September 21, 2020, the Third District Court of Appeal affirmed summary judgment in favor of the defendant city and defendant police officers.  The plaintiff was a teller in a bank robbed at gunpoint.  Police officers confronted the robbers at the bank.  The robbers took the plaintiff and two others as hostages.  The robbers ignored police commands, and commanded a hostage to drive them from the site in her vehicle.  Police pursued.  Soon after the pursuit began, a robber shot the driver in the leg and threw her out of the vehicle, taking over the wheel.  A robber fired multiple shots from an AK-47 at the lead pursuing officer.  The pursuit reached speeds of over 100 MPH over 60 miles, and involved over 30 police cars.  The robbers continued shooting at the police cars.  There was confusion over which police lieutenant was commanding the pursuit, and lieutenants gave conflicting orders.  A captain who went to head off the vehicle saw it exit an offramp with a robber pointing his rifle toward the offramp.  The captain fired  shots toward the robber, who fired his weapon and withdrew into the moving vehicle.  Another officer shot at the vehicle on the exit ramp.  The plaintiff decided her best chance of survival was to throw herself out of the vehicle while it was traveling at high speed.  Minutes later, police officers fired multiple rounds into the vehicle, killing two robbers and the remaining hostage.  The plaintiff sued the officers and the city for assault and battery, intentional infliction of emotional distress, and negligence.  The complaint alleged violation of general orders, police orders, negligence in conducting the pursuit, and use of excessive force that resulted in her injuries.

The appellate court ruled that the trial court had erred in two respects.  It ruled the court abused its discretion in excluding portions of a critical Police Foundation report about the incident as hearsay.  Since the police chief who requested the review of the incident adopted portions of the report in a press conference, the trial court should have admitted those portions under the adoptive admissions exception to hearsay.  The appellate court also ruled that the trial court erred in excluding some of plaintiff's contentions of wrongdoing on the ground that they were not reflected in her claim.  The claim alleged wrongdoing concerning the response at the bank, the use of force, and the pursuit; the complaint merely filled in details to these general allegations, rather than introducing new theories of liability.  The appellate court concluded, however, that these errors were not prejudicial.  As a matter of law, the officers who used deadly force toward the vehicle at the exit ramp used reasonable force under the circumstances.  They had probable cause to believe the robber they shot at posed a significant threat of death or serious physical injury to the pursuing officers and bystanders.  While firing at the vehicle endangered the hostages in the vehicle, no reasonable juror would conclude those actions were outside the range of reasonable conduct under the circumstances.  The contention that the officers violated superiors' orders and general orders did not raise a material issue on reasonableness; those orders are evidence concerning reasonableness, but do not establish the standard of care for using deadly force.  And even if the officers violated a superior's order to fire, that violation was reasonable under the circumstances.  The argument that the officers provoked the use of deadly force by the manner in which they conducted the pursuit failed.  Vehicle Code section 17004 bars liability for the manner in which the officers operated their vehicles during the pursuit.  Vehicle Code section 17001 did not provide an exception, because the plaintiff was not injured by operation of a police vehicle, but by her decision to jump from the vehicle.  

Since none of the individual officers identified as allegedly being negligent were liable, the city could not be held vicariously liable for the allegedly negligent actions of the police collectively.  Doing so would be to hold the city directly liable despite the lack of statutory liability, in violation of Government Code section 815.

Police Officers Owe Duty of Reasonable Care to Arrestees

In Frausto v. Department of the California Highway Patrol, published August 21, 2020, the First District Court of Appeal, Division 2 affirmed a jury verdict in favor of plaintiffs in a wrongful death case.  Officers conducted a traffic stop of the decedent.  They suspected he was using drugs.  They observed him put something in his mouth and swallow it.  They repeatedly asked him if he had ingested drugs.  He repeatedly stated he had put gum in his mouth and swallowed it.  They observed no signs of drug intoxication.  They brought him to jail.  One of the officers prepared a probable cause declaration for the arrest that stated that the officer and another observed the suspect place what looked like a plastic baggie in his mouth and claim it was only gum.  The arrest report did not mention a plastic baggie.  The officer later testified the statements in the declaration about the baggie were mistakes.  Soon after the officers brought the suspect to jail, he collapsed in his cell.  He died of acute methamphetamine intoxication.  The jury found the arresting officers 68% at fault for the decedent's death, and the decedent 22% at fault.  On appeal, the defendants contended that they owed no duty of care to the decedent to do more than they did.

The Court of Appeal held that the arresting officers were in a special relationship with the decedent once they arrested him, imposing a duty of care similar to that a jailer owes a jailed person. Once in custody, an arrestee is vulnerable, dependent, subject to the officer's control, and unable to attend to his or her own medical needs.  The officer therefore owes a duty of reasonable care to the arrestee regarding the arrestee's medical needs.  The question of whether under the circumstances the officers should have recognized the arrestee had a need for immediate medical attention does not go to whether a duty exists, but rather whether the officers breached the duty.

Police Officer and Judge Not Entitled to Qualified Immunity for Stopping and Arresting Person in Court on Suspicion He Is In Country Illegally

In Hernandez v. Skinner, published August 10, 2020, the 9th Circuit Court of Appeals affirmed a district court order denying summary judgment to a sheriff's deputy and a Montana state court judge on the ground of qualified immunity.  The plaintiff accompanied his wife to a hearing on the wife's request for a protection order, to serve as a witness.  While the plaintiff was waiting outside the courtroom, the subject of the requested order testified that the plaintiff was "not a legal citizen."  The judge contacted the sheriff's office, and requested deputies because he had "illegal immigrants out in the hallway."  The judge then told the wife and the defendant he would arrest them and charge them with contempt if they left the courtroom.  He wanted to prevent them from warning the plaintiff.  The defendant deputy arrived.  The judge told him that plaintiff and another witness were "illegal aliens."  The deputy went to the plaintiff in the hallway and asked him for identification and his immigration status.  The plaintiff handed the deputy an expired Mexican consulate ID card.  It did not indicate his immigration status.  The deputy handcuffed the plaintiff, searched him, and placed him in a patrol car outside.  The deputy spoke with an ICE agent who asked the deputy to transport the plaintiff to a detention facility.  The plaintiff was in ICE detention for three months before the Department of Homeland Security dismissed the deportation proceeding it had filed against him.  The plaintiff sued the judge and the deputy under 42 U.S.C. section 1983 for allegedly violating his Fourth Amendment rights.  The judge did not claim judicial immunity.  The issue was whether the defendants were entitled to qualified immunity.

The 9th Circuit agreed with the district court that the defendants were not entitled to qualified immunity.  Because an alien's illegal presence (as opposed to illegal entry) in the country is a civil violation, not a crime, 9th Circuit authority had established at the time of the stop that suspicion or knowledge that a person is unlawfully present in the United States is not sufficiently premised on criminality to justify a Terry stop.  The deputy's stop and search of the plaintiff therefore violated the Fourth Amendment.  The deputy conceded he did not have probable cause to arrest the plaintiff until he contacted ICE.  The facts indicated that once the plaintiff was in the deputy's patrol car, the Terry stop had turned into an arrest.  A reasonable person in the situation would not have felt free to leave.  The arrest without probable cause violated the Fourth Amendment.  The 9th Circuit further agreed with the district court that the judge was an "integral participant" in the deputy's unlawful actions.  While the 9th Circuit has not determined whether a "cause in fact" or "probable cause" test applies to determining "integral participants" in a section 1983 case, the judge's conduct in summoning the deputy, ordering that he wanted the plaintiff "picked up," and barring the plaintiff's wife from leaving the courtroom to warn the plaintiff.  The plaintiff's stop and arrest were foreseeable consequences.  9th Circuit precedent was sufficient to constitute the "body of relevant case law" necessary to clearly establish that the stop and arrest under the circumstances violated the Fourth Amendment.  Both defendants therefore violated clearly established law.

Intentional Tortfeasors Are Not Entitled to Reduction or Apportionment of Damages Based on Comparative Fault

In B.B. v. County of Los Angeles, published August 10, 2020, the California Supreme Court reversed a judgment after jury trial in a case alleging police use of force against a resisting suspect, resulting in the suspect's death, was battery.  A decedent who appeared to be under the influence of PCP was accused of attempting to kill a woman.  In the presence of the defendant officers, the suspect began chasing the woman.  The officers tackled the suspect, who fought against them.  The officers pinned the suspect by kneeling on him, using tasers, hitting him, handcuffing and hobble-tying him.  The suspect passed away from brain death and swelling from lack of oxygen, following a cardiac arrest, due to post-restraint maneuvers or behavior associated with drug use.  The jury found the officers committed battery by using unreasonable force.  The jury apportioned 20% liability to one of the officers, 40% to the decedent, and 40% to other officers.  The trial court entered judgment against the 20% at fault officer for 100% of the non-economic damages because his liability was based on an intentionaltort.  The Court of Appeal reversed, holding that the officer could be held liable for only his proportionate share of the damages.

The Supreme Court reviewed case law leading up to the 1986 passage of Proposition 51, case law interpreting Proposition 51, ballot materials for the proposition, and an unpassed bill that preceded the proposition, and concluded that intentional tortfeasors may not assert the defense of comparative fault.  Although jurors should apportion fault between negligent and intentional tortfeasors (to determine the apportionment to which negligent tortfeasors are entitled), the judgment should not reduce or apportion the damages award against intentional tortfeasors based on comparative fault.