Government Liability Update

Issues of Fact on Whether Resisting Suspect Posed Imminent Threat of Serious Harm and Whether Officers Had Time to Issue Deadly Force Warning Prevent Summary Judgment Based on Qualified Immunity

 

In Smith v. Agdeppa, published December 30, 2022, a divided panel of the 9th Circuit Court of Appeals affirmed denial of a summary judgment motion based on qualified immunity.  Two police officers responded to a gym’s report of trespassing and disruptive conduct.  When they arrived, staff reported that a man in the locker room was irate, was not listening, had hurt a few gym members, and had assaulted security.  The police entered the shower area of the locker room, where the man was naked, and spent several minutes ordering the man to get dressed, to turn off his music, and to leave the gym.  The man ignored the officers except to raise his middle finger.  The officers attempted to handcuff the man.  For a minute and 20 seconds, the man used his size to thwart the smaller officers’ attempts to handcuff him.  As he resisted, both officers’ body cams were knocked off their uniforms.  The next three minutes were not visible on video, but the cams continued to record audio.The defendant officer alleges that after the cams fell down, the struggle escalated and turned violent.  One officer used her taser in dart mode on the man, and both officers used their tasers in stun mode.  The defendant officer testified that the man repeatedly struck him in the face and knocked him backward into a wall, disorienting him and causing him to drop his taser.  According to the officer, the man straddled his partner and pummeled her head and face with punches.  He believed her life was in danger.  He drew his weapon and gave the man a verbal warning that he needed to stop.  He testified that the man continued to pummel the officer, so the defendant officer fired five shots from six to eight feet away.  The man began falling backwards and away when he fired the final shot.  The district court found that evidence contradicted the defendant officer’s version of events.  The warning to stop cannot be heard in the bodycam audio.  Security guards’ accounts, recounted in an internal investigation of the shooting, differed from the officers’ accounts in several respects.  A guard said that the man was holding the defendant officer’s arm when the shots were fired, contradicting the officer’s statement that he was standing away from the man.  The guards disagreed with the officers on the number of shots fired, the whether the man reached for the defendant officer’s firearm, and whether the man was holding the officer’s wrist until after the second shot was fired.  The internal investigation concluded the defendant officer’s use of lethal force was unreasonable, because there was no exigency preventing the officers from withdrawing and redeploying with greater resources.  Further, the evidence indicated the officers’ injuries were only minor, according to the panel majority.  An autopsy report also put into question the officer’s statement that he shot the man from six to eight feet away.  The district court concluded that a jury could find a reasonable officer in the defendant’s position would have understood his use of deadly force violated the man’s Fourth Amendment ri

 

The panel majority upheld the district court’s finding. In an interlocutory appeal from denial of qualified immunity at the summary judgment stage, the court determines whether the facts, viewed in the light most favorable to the plaintiff, show that the officer’s conduct violated a constitutional right; and whether the right in question was clearly established at the time of the officer’s action.  If either question is answered in the negative, the officer is entitled to qualified immunity.  Deadly force is reasonable only if the officer has probable cause to believe the suspect poses an immediate and significant threat of death or serious physical injury to the officer or others.  Further, an officer must give warning before using deadly force whenever practicable.  When the suspect is shot dead, and other evidence in the record (such as medical reports, contemporaneous statements by the officer, available physical evidence, and any expert testimony proffered by the plaintiff) is inconsistent with material evidence offered by the defendant, the majority held, qualified immunity should not be granted.  A jury should consider the contradictory evidence and decide whether they were persuaded by the officers’ testimony.  Here, depending on what happened in the locker room, a jury could find that the officer had an opportunity to give the suspect a “deadly force warning” before escalating to deadly force.  The officer provided several warnings before using intermediate force, but at no point did he warn the suspect he was escalating to the use of his firearm.  The officer’s version of events was materially contradicted by the record, including whether the officer was engaged in hand-to-hand combat with the suspect or stood six to  eight feet away.  While the suspect posed some danger to the officers’ safety by actively resisting arrest, a jury could reasonably reject the officer’s description of a deadly fight and find that a reasonable officer in the defendant’s position would not have believed the fellow officer or anyone else was in imminent danger.  Further, the officer never claimed it was not practicable to give a deadline force warning.  On the contrary, the officer gave a declaration that he gave a verbal warning, stating words to the effect that the suspect needed to stop.  Because the officers had tased the suspect a few times, a warning to stop would do nothing to warn the suspect that the officer was preparing to ramp up to use deadline force.  While the officer would likely prevail if a jury believed his version, the court cannot overlook the internal investigation’s contrary finding that no exigency required use of deadly force.

 

A dissenting judge opined that the undisputed facts, including the audio from the body cams and two independent witnesses’ verification of the officer’s account, indicated that the officers faced an imminent threat, and that the law did not require them to issue another warning before using deadly force.

The Private Search Exception to the 4th Amendment Applies to Location Information

In Kleiser v. Chavez, published December 9, 2022, the 9th Circuit Court of Appeals affirmed summary judgment in favor of the defendant state department of labor and industries.  Two disgruntled employees of an electrician company provided the department with data from the employer, particularly printouts of cell site location information, that provided GPS coordinates for company vehicles and movements of electricians in the field.  The department used the data to assess fines against the company for improper supervision of journeymen electricians.  The company sued the department under 42 U.S.C. section 1983, alleging the department violated the 4th Amendment by obtaining the data without a warrant.  The company contended Carpenter v. United States (2018)
138 S. Ct. 2206 , and Wilson v. United States (9th Cir. 2021) 13 F.4th 961, extinguished the applicability of the private search exception (under which the 4th Amendment does not protect against government use of materials that third parties seized without a warrant and provided to the government) to location information.

The 9th Circuit rejected the company's argument.  Carpenter held the third-party doctrine (under which a person who voluntarily turns over information to third parties cannot assert the 4th Amendment protects that information) does not apply as an exception to the 4th Amendment's warrant requirement when the government seeks cell site location information.  The private search exception is a separate exception to the 4th Amendment.  The 9th Circuit joined other circuits in ruling that Carpenter does not apply in private search exception cases.

Officers Were Not Negligent in Using Less-than-Lethal Weapons on Suicidal Suspect after Extended Negotiations

In Villalobos v. City of Santa Maria, ordered published November 16, 2022, the Second District Court of Appeal, Division 6 affirmed summary judgment in favor of the defendant city and its police officers.   Officers responding to a report of a suspicious person with a knife saw the plaintiff's decedent standing in a road holding a knife with a long blade.  The officers ordered the decedent to drop the knife.  The decedent held the knife to his own throat.  He pointed, gesticulated, and appeared upset.  The police attempted to negotiate with him for 42 minutes.  Eventually, without warning, the officers deployed less-than-lethal beanbag rounds and 40 mm rubber projectiles against the decedent.  They were 30-40 feet from the decedent.  The decedent saw the officers taking aim, and made a "go ahead" gesture.  The decedent began jumping up  and down and stabbing himself in the abdomen with the knife.  He slashed his own throat with the knife.  He then charged full speed toward the officers, the knife in his right hand.  The officers fired several rounds of live ammunition at the decedent.  He fell a few feet from the officers.  He died of multiple gunshot wounds.  Based on the totality of the circumstances, the trial court found that the officers were not negligent, and that no reasonable juror could find that the police acted unreasonably.  On appeal, the plaintiff conceded that the shooting became reasonable at some point, but that the officers were negligent in their pre-shooting conduct, resulting in the decedent's suicidal assault with the knife.

The appellate court agreed with the trial court.  The officers were not obliged to let the decedent go.  They could use reasonable force to disable him.  The fact that the less-than-lethal force was unsuccessful is not the reason deadly force was needed.  Viewing the facts in the light most favorable to the plaintiff, no reasonable juror could find that officers were negligent or had acted unreasonably. The officers patiently waited approximately 40 minutes before resorting to less-than-lethal weapons.  The decedent charged the officers in an apparent attempt to commit "suicide by cop."  That the officers did not use alternatives to deadly force did not raise a triable issue on negligence.  Officers are not required to use all feasible alternatives to avoid a situation where deadly force can justifiably be used.

Officers Do Not Violate the Fourth Amendment Merely by Being Present when Fellow Officers Use Deadly Force

In Peck v. Montoya, published October 18, 2022, the 9th Circuit court of appeals affirmed in part and reversed in part a district court’s denial of a summary judgment motion, based on qualified immunity, brought by defendant deputies in a 42 U.S.C. section 1983 case.  Deputies responded to a 911 call that a man was acting erratically and had threatened to shoot a person.  The deputies formed a perimeter around the suspect’s house and watched him through a large window.  The suspect was visibly agitated and continued to act erratically, taunting the deputies about shooting him.  A deputy observed a holstered revolver lying on the couch.  The deputy alerted the other deputies.  In response, the suspect began yelling, “I’ll show you my gun!  You wanna see my gun?”  Another deputy warned the suspect not to go near the gun.  According to the deputies, the suspect began moving toward the gun, bent over, reached for, and grabbed onto the gun.  As soon as he did so, one deputy began firing at the suspect through the window.  Another deputy said he began firing when the suspect raised the gun toward the other deputies.  A neighbor who witnessed the interaction, however, testified that the suspect was moving away from the gun several seconds before the shooting.  According to the suspect’s wife, when she reached her husband after the shooting, she did not see a gun in his hands or near his body; the gun was ultimately found unloaded and holstered under the coffee table.  A ballistics expert concluded that the wounds did not support one of the shooting deputy’s version of the story.  The suspect’s wife sued the deputies for use of excessive force in violation of the 4th Amendment and deprivation of a familial relationship in violation of the 14th Amendment.  The district court denied summary judgment on both claims for all defendants.  The defendants brought an interlocutory appeal.

The 9th Circuit affirmed denial of summary judgment on the 4th Amendment claim as to the shooting deputies.  On an interlocutory appeal from denial of summary judgment based on qualified immunity, the appellate court has no jurisdiction to entertain arguments that the evidence does not support the district court’s finding of a genuine issue of fact.  Here, the district court found a genuine issue of fact on whether the suspect was moving away from the gun when the deputies fired.  Resolving that issue against the defendants, it was clearly established that firing at an unarmed man who, although in the presence of a gun, never picked it up and in fact was moving away from it when shot, was excessive under the 4th Amendment.  The court reversed denial of summary judgment on the 4th Amendment claim for the deputies who did not fire.  An actor may be deemed to have caused a plaintiff to be subjected to a constitutional violation, and thus to be an integral participant in the violation, only if (1) the defendant knew about and acquiesced in the constitutionally defective conduct as part of a common plan with those whose conduct constituted the violation, or (2) the defendant set in motion a series of acts by others that the defendant knew or reasonably should have known would cause others to inflict the constitutional injury.  The other deputies did not meet that standard simply by being present at during the unplanned shooting.  Finally, all of the deputies were entitled to qualified immunity to the wife’s 14th Amendment familial relationship claim.  The law was not clearly established that a spouse (as opposed to a parent or child) could assert such a claim.  Further, even under the law relating to parent and child claims, the claim here failed.  Under the circumstances here, requiring a snap judgment under escalating circumstances, the deputies use of deadly force did not “shock the conscience” because the deputies did not shoot the suspect for any purpose other than their (possibly mistaken) perception of the need for self-defense.

Police Agency's Vehicle Pursuit Policy That Does Not Meet the POST Minimum Annual Training Hours Requirement Cannot Immunize Agency

In Flores v. City of San Diego, published September 15, 2022, the Fourth District Court of Appeal, Division 1 reversed summary judgment granted to the defendant city.  A motorcycle operator died while being pursued by police.  The operator's survivors sued the city for wrongful death.  The city moved for summary judgment based on the immunity under Vehicle Code section 17004.7.  Section 17004.7 immunizes public agencies from liability under Vehicle Code section 17001 if the agencies satisfy the statutory requirements for promulgating, adopting, and training officers on a vehicular pursuit policy.  The statute requires "regular and periodic training," which the statute defines as complying, at a minimum, with the training guidelines established pursuant to Penal Code section 13519.8.  Penal Code section 13519.8, in turn, authorizes the Peace Officers Standards and Training (POST) Commission to set standards pertaining to state-wide training of officers in the handling of high-speed vehicle pursuits.  The defendant department used a 25 minute, 50 second video to train officers on its pursuit policy.  POST Regulation 1081 require a minimum of one hour training annually on high-speed vehicle pursuit training.  The plaintiffs contended that because the city's pursuit policy training did not meet the one-hour minimum annual training regulation, the city was not entitled to immunity under section 17004.7.  The trial court granted summary judgment.

The appellate court concluded that the city had to meet the POST regulation's requirement of at least one hour training on the pursuit policy annually.  The court rejected the city's argument that the regulation applied only to entry-level training.  It further rejected the argument that the regulation does not apply to discretionary training such as vehicle pursuit policy training; if an agency wishes to avail itself of the section 17004.7 immunity, the training and adherence to the POST regulation become mandatory.  The court further rejected the argument that POST was not statutorily authorized to adopt minimum time standards for the training.  Because the City failed to show that its officers received a minimum of one hour training on the policy annually, it was not entitled to summary judgment.

Officer's Exchange of Shots with Hostage Taker Did Not Render Officer Liable for the Criminal's Later Murder of the Hostages

In Gorlick v. State of California, published September 8, 2022, the First District Court of Appeal, Division 3 affirmed dismissal of a defendant county, county sheriff’s office, and deputy sheriff after demurrer was sustained without leave to amend.  A disgruntled former resident of a veteran’s home entered the home, armed, and took hostages.  The defendant deputy was dispatched to the hostage situation.  He opened a metal door in the home, and saw the hostage taker holding a rifle.  The deputy closed the door, and fired at the hostage taker through the door.  The hostage taker fired back.  After exchanging several shots, the deputy held back for several minutes until backup arrived.  Hours later, an FBI SWAT team opened the door and found the hostage taker and hostages dead.  It was undisputed that none of the deputy’s shots hit the hostages or the hostage taker; the hostage taker killed the hostages and himself, allegedly within seconds after exchanging gunfire with the deputy.  The plaintiffs alleged the county defendants were liable for the wrongful death of the victims because they failed to exercise reasonable care in preparing for and responding to the shooting incident.  The trial court concluded that the county defendants did not owe a duty of care to the victims.

The appellate court agreed.  Peace officers owe a duty of care to act reasonably when using deadly force.  But the complaint failed to allege facts showing that this duty encompassed an obligation to prevent the hostage taker from shooting his hostages.  Under California law, a peace officer may use reasonable force to make an arrest, prevent escape or overcome resistance, and need not desist in the face of resistance.  A corollary is that the officers have a duty in tort to act reasonably when using deadly force against a suspect.  An officer’s lack of due care when employing deadly force may give rise to liability for injuries incurred by third parties in the deadly force incident, when the officer injures those persons.  But no one suffered physical injury during the exchange of gunfire between the officer and the hostage taker.  Generally, there is no duty to protect others from the conduct of third parties.  By using deadly force, the deputy did not assume a tort duty of care to the hostages to prevent the hostage taker from killing them.  Case law differentiates injury caused by an officer’s allegedly negligent use of deadly force (which is actionable) from failure to prevent a third party’s use of force (which is generally not actionable).  There are exceptions from the rule that a person owes no duty to protect others from perils the defendant did not create.  But none of them applied here.  The plaintiffs did not allege facts showing that the deputy placed the hostages in danger.  By discharging his duty to protect the public as a whole from the hostage taker’s criminal actions, the deputy did not assume a duty of care to the hostages distinct from or greater than his duty to the public.  The complaint did not plead facts linking the deputy’s acts to the hostages’ death, and therefore did not establish that the deputy’s acts increased the risk the hostages already faced.  To state a claim for affirmatively increasing a risk of harm, plaintiffs must allege a direct connection between the challenged conduct and some risk of harm or heightened risk of harm that would not otherwise have arisen if not for the defendant’s conduct.  Neither the speculative conclusion that the gunfire exchange prompted the hostage taker to shoot the hostages, nor the allegation that the deputy should have entered the room and killed the hostage taker after making his presence known, showed the required connection.  An officer does not increase a risk of harm by failing to stop an individual from acting dangerously.  The court also rejected the argument that the deputy or county entered into a special relationship with the victims or the killer.  The deputy’s mere appearance and attempt to stop the crime did not create a special relationship with the victims.  The plaintiffs did not allege that the hostages detrimentally relied on anything the deputy did or said.  An “interagency agreement” between the sheriff’s department and the entity running the home, requiring the department to respond to all calls for service at the home, did not create a contractual duty for the department to protect the decedents from the killer.  While the department had verbal interactions with the home’s staff about security issues at the home, this did not create a special relationship analogous to that in cases where police secure a person’s cooperation in exchange for promises of protection or assurances that a threat does not exist.

Prison Guard Entitled to Qualified Immunity for Shooting Inmate in Fight with Less-Lethal Round, and Nurse Entitled to Qualified Immunity for Subsequent Examination of Prisoner

In Simmons v. Arnett, published August 31, 2022, a divided panel of the 9th Circuit Court of Appeals affirmed summary judgment for a prison guard and a prison nurse in a 42 U.S.C. section 1983 lawsuit alleging violation of the 8th Amendment.  The plaintiff prisoner was attacked by another inmate.  The defendant guard was the only guard in the command center.  He could not leave the command center.  He had both a semi-automatic rifle loaded with live rounds, and a less-lethal 40 mm. weapon that shot sponge-tipped plastic rounds.  He used the less-lethal weapon to shoot at the plaintiff inmate to break up the fight.  He shot the plaintiff in the leg, breaking the leg, and then in the thigh and buttocks.   Prison staff immediately took the plaintiff to the prison's medical room.  The defendant nurse asked the plaintiff how he was injured.  He stated he slipped in water.  She wrote that down.  He then said he had been shot in the backside.  She wrote that he had lower leg pain.  WIthin minutes, she had him transferred to the prison's emergency room, where his leg and later his thigh and buttocks were treated.  The notes she made were not sent with him.  He alleged that the guard used excessive force and that the nurse was deliberately indifferent in her medical care.

The appellate panel majority ruled that neither defendant violated the plaintiff's 8th Amendment rights.  A use of force violates the 8th Amendment if it is not a good faith effort to maintain or enforce discipline, and the defendant instead acts maliciously and sadistically for the purpose of causing harm.  Viewing the facts in the light most favorable to the plaintiff (including the fact that the plaintiff was not fighting back), the guard acted reasonably in acting to stop the fight without leaving the command center, and in using the least use of force available to him.  Further, the guard was entitled to qualified immunity, because his conduct did not violate clearly-established law.  Case law holding that use of deadly force on an inmate bystander to a fight violated the 8th Amendment did not clearly establish the use of force was excessive, because the case did not involve a guard who could not leave his post and who used less-lethal force.  The nurse was entitled to summary judgment because the facts did not show any deliberate indifference on her part in failing to make a complete examination, and in writing the plaintiff's own description of what caused his injury in the notes (which were not used in the inmate's treatment).  Instead, the facts showed that the nurse acted properly.

A dissenting judge agreed the nurse was entitled to summary judgment, but opined that qualified immunity should not be found at the summary judgment stage.  If the facts were resolved in the inmates favor, the judge wrote, the use of force on an inmate who was not fighting violated clearly established law.

Police Properly Demanded Drivers Licenses at Checkpoint and Properly arrested Driver Who Refused to Show One

In Demarest v. City of Vallejo, published August 16, 2022, the 9th Circuit affirmed summary judgment for the defendant city and defendant police officer in a 42 U.S.C. section 1983 case.  The plaintiff was suffering from a staph infection on his back.  He encountered a DUI and driver's license checkpoint.  Under the checkpoint plan, all vehicles were stopped unless backup exceeded five minutes.  Officers were to screen drivers for DUI, verify they had a license, and provide an educational handout.  Although drivers' licenses  were to be checked, the checkpoint's purpose was to remove intoxicated drivers from the road and deter intoxicated driving, not to remove unlicensed drivers.  The plaintiff refused to show his driver's license at the checkpoint.  The defendant officer opened the door of his car, grabbed his left wrist, removed him from the vehicle, handcuffed him, and told him he was under arrest.  The arrest process, which took one to two seconds, exacerbated the plaintiff's back pain.  When he was booked, a utility knife was discovered hanging around the plaintiff's neck.  He was charged with resisting arrest and carrying a concealed dirk or dagger.  He participated in a diversion program and the charges were dismissed.  He then sued the officer for violating his 4th Amendment rights by demanding to see his license and refusing to let him proceed; detaining him without reasonable suspicion; arresting him without probable cause; and using excessive force.  He sued the city for municipal liability for an alleged official policy of conducting driver's license checks at DUI checkpoints; and for failure to train.  The district court ruled that neither the officer nor the city violated the 4th Amendment.

The court of appeals agreed.  A municipality may set up a checkpoint to stop cars without reasonable suspicion of committing a crime, if it passes a two-part test.  First, the court must determine whether the checkpoint is per se invalid because its primary purpose is to advance the general interest in crime control.  If not, the court determines the checkpoint's reasonableness (and therefore constitutionality) based on the individual circumstances.  Here, the checkpoint satisfied the first step.  The primary purpose of the checkpoint was the proper one of reducing the danger of drunk driving.  Although removing unlicensed drivers from the road was not a purpose of the checkpoint, that did not detract from the checkpoint's proper purpose.  Further, if removing unlicensed drivers from the road was a purpose, that highway safety purpose would have been proper.  On the second step, stopping the plaintiff's car based on the sobriety checkpoint was proper under the 4th Amendment.   The court rejected the argument that the purpose of having a sobriety checkpoint rendered checking licenses improper.  The subjective intent behind the stop is not relevant to the second step.  The systematic addition of driver's licenses checks to the DUI checkpoint was objectively reasonable.  The check only minimally interfered with liberty of the sort the 4th Amendment seeks to protect.  It was not an investigation of a crime; the contribution to the length of the stop was minimal; and the programmatic guidelines of the stop minimized discretion of officers at the scene.  The plaintiff's detention and arrest did not violate the 4th Amendment, because the officer had probable cause the plaintiff violated Vehicle Code section 12951 by refusing to show his license.  Finally, the excessive force claim fails, because the use of force incidental to the arrest was reasonable, and the plaintiff failed to show evidence the officer using the force was aware of the plaintiff's back injury when the force was used.

Social Media Posts of Police Officer Protected by First Amendment Despite Objectionable Content

In Hernandez v. City of Phoenix, published August 5, 2022, the 9th Circuit Court of Appeals affirmed in part and reversed in part dismissal of a police officer's suit against the defendant city under 42 U.S.C. section 1983.  The city's police department adopted a social media policy for employees that prohibited employees from engaging in speech that would be detrimental to the mission and functions of the department, undermine respect or public confidence in the department, or impair working relationships in the department.  While off-duty, the plaintiff officer posted to his personal Facebook profile of news articles and memes, accessible to the public, with content that was negative to Muslims and Islam.  Over five years later, a project that maintains a database of Facebook posts from law enforcement officers across the country, published the plaintiff's posts.  This generated public criticism of the department and negative media attention.  The department investigated the posts.  The officer asserted that he posted the items to drive discussion about issues in the news at the time.  The investigation concluded that the officer had violated the department's social media policy.  Before the department decided what discipline to impose, the officer and others filed the lawsuit.  The plaintiffs contend that the department violated the 1st Amendment by retaliating against the officer for exercising his right to freedom of speech. and that portions of the social media policy are facially invalid under the 1st Amendment as vague and overbroad.  They sought damages and injunctive relief.  The district court granted an FRCP 12(b)(6) motion to dismiss the retaliation and facial overbreadth challenge.  It then granted summary judgment on the facial vagueness claim.

The 9th Circuit reversed the dismissal of the retaliation claim.  The Pickering test for whether a public employee spoke on a matter of public concern as a private citizen, rather than as an employee, applies.  The district court determined that the officer had not spoken on a matter of public concern.  That is an issue of law subject to de novo review.  The court analyzes the content, form, and context in which the statements are made.  The content here did not address internal work matters; they addressed matters of social and political concern of interest to others outside the department.  Regarding form and context, the plaintiff posted the items on his own time, outside the workplace, using his personal Facebook profile.  The intended audience was not limited to fellow employees, and the posts were open to the public.  While the posts expressed hostility toward, and sought to denigrate or mock, a major faith and its adherents, the inappropriate or controversial character of a statement is irrelevant to whether it deals with a matter of public concern.  The court remanded the claim to the district court for further development of the record.  The court emphasized that the department may not face an onerous burden to justify disciplining the officer for the posts, given the comparatively low value of his speech and the deference given to a police department's determination that an officer's speech warrants deference.  The department may permissibly consider the special status officers occupy in the community  when deciding what limitations to place on officers’ off-duty speech.  Speech by a police officer that suggests bias against racial or religious minorities can hinder that officer’s ability to effectively perform his or her job duties and undermine the department’s ability to
effectively carry out its mission. 

Regarding the facial challenge to the social media policy, the appellate court largely agreed with the district court.  Most of the challenged restrictions directly promote valid bases for imposing restrictions on public employee speech: prohibiting speech that undermines the employer's mission or hampers effective functioning of operations.  The challenge to the provisions prohibiting speech that would cause embarrassment to or discredit the department, however, cannot be rejected at the pleading stage.  The department does not have a legitimate interest in prohibiting speech merely on those grounds.  The same applies to the challenge to the portion of the policy that department personnel may not divulge information gained in the performance of their official duties.

 

Alleged Participation in Obtaining Restraining Order without Informing Court of Custody Order, and Participation in Removing Child without Reasonable Cause and Detaining Child beyond Reasonable Period, Violates Clearly Established Law

in David v. Kaulukukui, published June 27, 2022, the 9th Circuit Court of Appeals affirmed denial of a police officer's motion to dismiss a 42 U.S.C. section 1983 lawsuit.  According to the complaint, a custody order awarded the plaintiff full custody of her daughter, denied the father visitation rights, and ordered that the father stay away and have no contact with the plaintiff.  The plaintiff and daughter lived on the Island of Hawaii, while the father lived on Kauai.  The plaintiff and child visited family on Kauai.  During the visit, the father had contact with the plaintiff and daughter over the plaintiff's protests.  The plaintiff then took the daughter to the father's workplace and demanded he apologize to the daughter.  When the plaintiff yelled at, pushed, and taunted the father, the police arrested her.  She posted bail, and she and the daughter returned to the island of Hawaii.  According to the plaintiff's complaint, after the altercation the defendant officer met with the father at the Kauai county police department.  The officer prepared and filed a petition for a protective order in family court on the father's behalf seeking to prohibit the mother from contacting any of the father's family members, including the daughter.  The petition did not mention the custody order.  The family court granted the petition and issued a TRO prohibiting the mother from having any contact with her daughter.  Two weeks later, a child welfare services official visited the mother's home and rated the mother a low to moderate risk score.  During the visit, the mother informed the CWS worker of the custody order.  A few days later, CWS officials conducted a "grab and go," taking the daughter from her school without a court order or prior notice to the mother, and put her in the father's custody on Kauai.  When the plaintiff attempted to report to the Kauai county police department that the daughter had been "kidnapped and was in the custody of an allegedly abusive, non-custodial parent, the defendant officer allegedly worked with other defendants to prevent the allegations from being investigated or a police report from being filed.  Eleven days later, the family court held a hearing on the TRO, learned of the custody order, and dismissed the prohibition against the plaintiff having contact with her daughter.  The daughter was returned home 21 days after being grabbed from her school.  The district court denied the defendant officer's motion for dismissal based on qualified immunity, on the ground that the operative complaint stated a plausible claim for violation of a clearly established right to familial association.

The court of appeals agreed.  A right to familial association under the 14th Amendment (for parents) and the 4th Amendment (for children) is clearly established.  9th Circuit case law at the time of the incident clearly established that as part of that right, parents and children have a right to be free from judicial deception in child custody proceedings and removal orders.  Judicial deception may occur through either affirmative misrepresentation or deliberate omission.  The facts alleged state a plausible claim that the defendant officer prepared a petition that intentionally omitted any reference to the custody order, and did not otherwise inform the court of the order; and that had the judge been informed, the court would not have granted the order.  It therefore stated a plausible claim for violation of the mother's and child's right familial association based on judicial deception.  Any reasonable official would understand that deliberately concealing material custody information from a court for the purpose of depriving a custodial parent of a child violates the law.  The allegations that the defendant officer's participation in removing the daughter and placing her in the father's custody also stated a plausible claim that the defendant violated clearly established law that removal of a child from a parent without the parent's consent or a court order, absent reasonable cause to believe the child is in imminent danger, violates the right to familial association.  The facts alleged also state a plausible claim that the continued separation exceeded that reasonably necessary to avert the specific injury at issue.