Government Liability Update

Because Prison Staff Member's Sexual Assault of Prisoner Violates Eighth Amendment, Jury Instruction Requiring Prisoner to Prove Elements of Excessive Force Claim Was Plain Error

In Bearchild v. Cobban, published January 16, 2020, a divided 9th Circuit panel reversed and remanded the judgment entered after the jury trial of a prisoner's Eighth Amendment claim against prison officials.  The plaintiff alleged that during an intrusive search, a prison guard improperly rubbed, groped, stroked, and squeezed the plaintiff in intimate areas.  During the trial of the prisoner's 42 U.S.C. section 1983 suit for violation of his Eighth Amendment rights, the district court gave the jury the 9th CIrcuit model Eighth Amendment instruction, which focused on the amount of force used, the need for the use of force, the user's subjective state of mind, and the harm.  The pro se inmate did not object to the instruction.  The jury returned a defense verdict.

The majority ruled that the jury instruction was erroneous.  Past 9th Circuit cases of alleged sexual assault of prisoners by prison staff established that a sexual assault violates the Eighth Amendment, since it serves no penological purpose; the defendant is presumed to have acted maliciously and sadistically for the purpose of causing harm, satisfying the subjective state of mind element; and the inmate need not prove he or she suffered injury to prove a violation.  Therefore, a prisoner presents a viable Eighth Amendment claim where where he  or she proves that a prison staff member, acting under color
of law and without legitimate penological justification, touched the prisoner in a sexual manner or otherwise engaged in sexual conduct for the staff member’s own sexual gratification, or for the purpose of humiliating, degrading, or demeaning the prisoner.  Because the instruction given required the prisoner to prove additional elements concerning excessive force, it was plain error.  A further instruction defining sexual assault did not cure the error, because a reasonable jury would not necessarily understand the instruction applied to the Eighth Amendment claim.  A dissenting judge opined that the combined instructions adequately informed the jury of the plaintiff's burden.

Period Probationary Employee Was Relieved of Duty, with Pay, Was Period Away from Actual Service, Permitting Employer to Extend Probationary Period

In Amezcua v. Los Angeles County Civil Service Commission, ordered published January 17, 2020, the Second District Court of Appeal, Division 5, affirmed a trial court order denying writ petitions of ordinary and administrative mandamus challenging the dismissal of a sheriff's deputy.  The county's civil service rules prescribe that a county employee's probationary period shall be no longer than 12 months from date of appointment to permanent position.  The rules further provide that if an employee is absent from duty, the appointing power may calculate the probationary period based on the date of actual service, exclusive of the time away.   The rules define "actual service" to mean time engaged in the performance of the duties of a position or positions including absences with pay.  The plaintiff was placed on a 12-month probationary period.  During the period, he was relieved of duty during an administrative investigation.  He was told to turn in his gun and badge and remain at home during work hours.  He received pay.  He was notified that his probationary period was being extended.  More than 12 months after his hire, he was terminated without a hearing.  He contended that his probationary period was not properly extended; that he therefore became a permanent employee when the 12 months expired; and that he was entitled to a hearing before termination.

The appellate court majority concluded that the probationary period was properly extended.  It interpreted the time during which plaintiff was relieved of duty to be time absent from duty, since he had no duties except to surrender his badge and gun and remain home during work hours.  It rejected an argument that because actual service included absences with pay, the time during which he was relieved of duty was a period of actual service.  A dissenting justice disagreed, and opined the text of the rules supported the plaintiff's interpretation.

Using a Chokehold on a Restrained, Non-Resisting Person Violates Clearly-Established Law

In Tuuamalemalo v. Greene, published December 24, 2019, the 9th Circuit affirmed a trial court order denying summary judgment in a 42 U.S.C. section 1983 case on qualified immunity grounds.  In 2014, the plaintiff was involved in a confrontation with police officers.  After five officers took the plaintiff to the ground, the defendant officer put the plaintiff in a lateral vascular neck restraint chokehold.  The plaintiff lost consciousness, and it took several attempts to revive him.  He sued the officers who restrained and used force against him.  The other officers obtained summary judgment based on qualified immunity.  The officer who applied the chokehold was denied summary judgment.

The 9th Circuit agreed with this ruling.  Viewing the facts in the light most favorable to the plaintiff--as the court was required to do when reviewing an order denying summary judgment based on qualified immunity--the plaintiff was restrained and was not resisting when the officer applied the chokehold.  Before 2014, a 2013 case and a 2003 case had held that using a chokehold on a non-resisting, restrained person violated the Fourth Amendment.  Further, a robust consensus of authority from other circuits holds that using a chokehold on a non-resisting person violates the Fourth Amendment.  The law was therefore clearly established in 2014 that use of a chokehold in this specific context violated the Fourth Amendment.

Pursuit Policy and Training Need Not Set Forth Speed Limits to Provide Immunity

In Riley v. Alameda County Sheriff's Office, published December 17, 2019, the First District Court of Appeal, Division 5 affirmed summary judgment for the defendant sheriff's office under Vehicle Code section 17004.7, which immunizes public agencies from liability for collisions involving vehicles pursued by peace officers if the agency adopts and promulgates a written policy on, and provides regular training for, vehicular pursuits.  The plaintiff's motorcycle was struck by a car fleeing sheriff's deputies.  He alleged that the sheriff's office's policy, promulgation of the policy, and training did not meet statutory requirements.

The court ruled that the policy, promulgation, and training met the requirements.  The plaintiff contended that the policy did not meet the requirement to determine factors to be considered by an officer and supervisor in determining speeds throughout a pursuit.  The court ruled that although the policy did not expressly state factors to be considered in determining speeds, it set forth 17 factors to be considered in making pursuit decisions, which included the speeds involved and other factors that would require the consideration of speed.  Similarly, the training included warnings against excessive speeds, and required consideration of factors involving speed.  The law did not require the policy to include numeric speed limits.  The court also rejected the argument that the department's promulgation of the policy did not meet the requirements of ordering that all officers sign off on the policy.  The department promulgated a general order requiring all officers to read the policy in a timely manner and sign off electronically that they had done so.  Eighty percent of officers in the department had done so.

In Excessive-Force Case, District Court Erred by Excluding Lay Witness Testimony of Decedent's Past Behavior Consistent with Mental Illness

In Crawford v. City of Bakersfield, published December 16, 2019, the 9th Circuit Court of Appeals reversed a jury verdict for a defendant police officer and his municipal employer.  At a gas station, a decedent pulled a gas nozzle out of a car, poured the gas on the ground around himself (spraying some on a bystander), and set the gasoline on fire.  When the defendant police officer responded, he found the decedent acting erratically toward those present.  The officer approached the decedent so that he could here what the decedent was saying.  The decedent made challenging remarks to the officer.  Without waiting for backup, the officer stopped 20 feet from the decedent and told him to get on the ground.  The decedent moved toward the officer quickly, picked up a horshoe-shaped bike lock, raised it over his head, ignored an order to put it down, and charged the officer.  The officer drew his handgun and shot the decedent.  The district court excluded testimony from the plaintiff, the decedent's mother, of the decedent's conduct consistent with mental illness, and of the treatment the decedent received for mental illness in the past.  The district court reasoned that because the defendant officer did not know of the past behavior, the evidence was irrelevant.

The Court of Appeals ruled that the district court erred.  Because the existence of mental illness is relevant to whether the force used is excessive, the evidence from the plaintiff confirming that the decedent was mentally ill (and not on drugs) was relevant, even if the officer did not know that information at the time of the shooting.  The court also rejected the argument that the plaintiff was providing lay expert testimony.  A lay witness may testify to observed conduct consistent with mental illness, so long as the lay witness does not offer an opinion that the person was indeed mentally ill.  Under the circumstances of the trial--including a closing argument that plaintiff had presented no evidence the decedent was mentally ill--the error was prejudicial.

Search Warrant for Entire Multi-Resident Property Was Not Overbroad; Detention of Elderly Resident During Duration of Search Not Unreasonable

In Blight v. City of Manteca, published December 11, 2019, the 9th Circuit affirmed summary judgment for police officers who obtained and executed a search warrant for a multi-acre wooded property.  The officers received reliable firsthand information from an informant that a suspect was growing and processing marijuana on the property.  The informant explained that one suspect and his family lived in the main house, and that another who helped him lived in the mobile home on the property.  In the opinion of the officer who obtained the warrant, based on his experience, the property resembled those where marijuana was grown, often in residences.  The officer obtained a warrant from a judge and executed it.  The 74-year-old plaintiff lived in the mobile home.  After the officers ordered her to exit the home, they breached the entrance.  The plaintiff initially hid, then exited the home.  Officers told her that if she did not enter the police car she would be handcuffed.  She complied.  The officers drove her to the street for the duration of the search, less than an hour. She was not handcuffed or physically searched.  She sued under 42 U.S.C. section 1983, alleging that the warrant was overbroad and the officers' execution of the warrant and detention of her was improper.

The court of appeals ruled the warrant was not overbroad.  Where multiple residences are on a single property under a single suspect's control, a warrant covering all residences on the property is not overbroad.  The judge had a substantial basis for issuing the warrant, based on the information provided him.  The search is reasonable even if the officers have information that the suspect is not on the property at the time of the search.  The officers had categorical authority to detain the plaintiff during the duration of the search, since she was a resident of the property searched.  The circumstances of the detention were reasonable, despite the plaintiff's age.

Under State-Created Danger Doctrine, Officer May Violate Substantive Due Process By Disparaging Domestic Violence Victim to Abuser, or Praising Abuser While Protecting Him From Arrest; But Officers Entitled to Qualified Immunity

In Martinez v. City of Clovis, published December 4, 2019, the 9th Circuit affirmed summary judgment in favor of defendant police officers in a 42 U.S.C. section 1983 case.  The plaintiff was in a relationship with a police officer.  In response to a domestic abuse call, a defendant officer declined to arrest the suspected abuser, and did not inform the plaintiff of shelter options.  The officer, a co-worker of the suspected abuser, then disclosed to the suspect the contents of the plaintiff's complaint, and asked him what he was doing dating a girl like plaintiff.  After the officer left, the suspect abused the plaintiff again.  On a later domestic violence call, a group of officers believed they had probable cause to arrest the suspected abuser.  A senior officer ordered the other officers not to arrest the suspect, but instead refer the matter to the district attorney.  He remarked that the suspected abuser's family were "good people."  That night, the suspect abused the plaintiff again.  The officer was eventually convicted of violating a protective order. He pleaded guilty to a domestic violence charge.  The plaintiff contended that the officer defendants violated her substantive due process rights under the state-created danger doctrine, by affirmatively placing her at greater risk of abuse.

The court of appeals ruled that the officer defendants did not increase the risk of abuse to the plaintiff by not arresting the suspect, or by failing to advise the plaintiff of all of her options to escape abuse.  Those acts did not increase the danger of abuse that the plaintiff already faced.  But disclosing a confidential report of abuse to the suspected abuser while disparaging the complaining victim did increase the danger, by emboldening the abuser.  Similarly, ordering officers not to arrest the abuser, while praising the abuser, emboldened the abuser and increased the danger.  But the officers were entitled to qualified immunity, because the law did not clearly establish that those acts violated substantive due process.  Although a similar case from the 2nd Circuit found a violation of substantive due process, other circuits disagreed with that case.  Absent binding authority, a consensus of non-binding authority is necessary to clearly establish the law.  The court emphasized that its decision would henceforth clearly establish the law on the subject.

Officer Entitled to Qualified Immunity against Fourteenth Amendment Claim for Shooting Bystander While Responding to Believed Robbery

In Nicholson v. Gutierrez, published August 21, 2019, the 9th Circuit affirmed in part and reversed in part a district court ruling on a police officer's motion for summary judgment, based on qualified immunity, in a 42 U.S.C. section 1983 case.  A group of youths were gathered in a circle in an alley dancing and rapping.  One held a plastic replica gun, with a bright orange tip, as a prop.  Two plainclothes officers drove by.  The defendant, in the passenger seat, saw the youths, saw the toy gun, and believed one of the youths was going to be robbed at gunpoint or shot.  He yelled, "Gun, gun, gun!"  His partner stopped the car.  Without conferring with his partner, the defendant jumped out of the car and ran into the alley.  According to the youths, the defendant did not identify himself as a police officer or make any verbal commands.  The officer fired three shots.  The youths stated that the defendant fired with one hand while running.  One shot hit one of the youths (who was not carrying the prop gun) in the back.  At the time, the youth who was shot was putting on cologne, while another youth was about to put on his school uniform.  The youth with the toy gun dropped it either before or after the shots.  The officers held the group at gunpoint while the partner requested an ambulance for the shot youth.  The officers did not answer questions from the youths.  Responding officers handcuffed the group.  Two of them--including the one shot--were kept in handcuffs for about five hours.  The two sued the officer for violating their rights under the Fourth and Fourteenth Amendments.  The district court granted the defendant officer summary judgment against the claim the shooting violated the Fourth Amendment.  That ruling was not at issue in the appeal.  The district court denied summary judgment, based on qualified immunity, on the Fourth Amendment claim against the officer for unlawful arrest, excessive force, and overlong detention, and on their Fourteenth Amendment claim.

The 9th Circuit affirmed denial of summary judgment on the Fourth Amendment claim.  Viewing the facts in the light most favorable to the youths, although the defendant officer did not directly participate in the detention of the youths after other officers arrived, he was an integral participant because he set the events in motion and either instructed the other officers to arrest the plaintiffs or consulted in that decision.  Further, under plaintiffs' facts, the detention continued after probable cause had dissipated.  That violated clearly-established law.  The appellate court also held that the facts, interpreted in the light most favorable to the plaintiffs, supported a Fourteenth Amendment violation by showing deliberate indifference in failing to assess the situation before using deadly force.  But the officer was entitled to qualified immunity on the Fourteenth Amendment Claim, because no existing Circuit Precedent or Supreme Court case law clearly established that accidental shooting of a bystander while using deadly force violated the Fourteenth Amendment.

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.