Government Liability Update

Claim for Fabrication of Evidence Does Not Require Evidence of Motive or “But For” Causation

In Richards v. County of San Bernardino, published June 24, 2022, the 9th Circuit Court of Appeals reversed summary judgment granted to the defendant county and a county investigator in a 42 U.S.C. section 1983 action.  The plaintiff was accused of murdering his wife.  The defendant investigator found, under the fingernails of fingers of the remains that had been severed after the autopsy (and that had been scraped for trace evidence) a visible blue fiber that matched a shirt the plaintiff had been wearing.  Two trials of the charges against the plaintiff ended with hung juries.  A third ended in mistrial.  Before the fourth attempt, the county retained a forensic odontologist who opined a bruise on the decedent’s hand (which the medical examiner had determined was not a bitemark) was a bitemark that was consistent with the plaintiff’s teeth.  Plaintiff spent 20 years in prison before a habeas corpus petition with new evidence (including the odontologist recanting his testimony) resulted in vacation of his conviction.  The plaintiff then sued various sheriff’s officers and the county for constitutional violations allegedly committed during the murder investigation and prosecution.  In particular, he alleged that the investigator had fabricated the blue fiber evidence, and that the county’s customs and policies resulted in the alleged constitutional violations.  The district court granted summary judgment for all defendants.  It found that the plaintiff did not carry his burden of showing any constitutional errors, and therefore could not prove the county’s Monell liability.

The court of appeals disagreed on those points.  It held that the district court erred in rejecting the deliberate fabrication claim on the grounds that the plaintiff was unable to point to evidence of a motive to deliberately manipulate the evidence; there were more plausible explanations for the late discovery of the fibers; and that the plaintiff had failed to prove causation.  There is a clearly established constitutional due process right not to be subjected to criminal charges based on false evidence deliberately fabricated by the government.  The district court erred in requiring the plaintiff to show evidence of motive.  While motive is potentially strong circumstantial evidence in support of a fabrication claim, it is never required.  The plaintiff had direct evidence of fabrication.  He therefore had no need to show motive.  The finding of a more plausible explanation of the fiber was error, because it resulted from the district court weighing the evidence.  The district court had to accept the plaintiff’s evidence as true without making credibility determinations or weighing the evidence.  Further, the plaintiff presented evidence from which a jury could reasonably infer that the fibers were not under the decedent’s fingernails at the time of the autopsy.  The district court also erred in concluding that the fiber evidence was not the “but for” cause of the conviction, in light of the bitemark.  Because of the fundamental due process right at issue, the correct standard was not but-for causation, but rather whether the evidence was “material”—i.e, there is a reasonable likelihood that the allegedly fabricated evidence could have affected the judgment of the jury.  Finally, the court erred in holding the Monell claims failed because there was no predicate constitutional violation by a government official.  Because there was an issue of fact as to whether the investigator fabricated the evidence, there was an issue of fact on constitutional violation.  Further, even if no individual violated the Constitution, if the plaintiff can establish he suffered constitutional injury by a county policy, the fact that individual officers are exonerated is immaterial to Monell liability.  Here, the plaintiff put forth theories of Monell liability not premised on findings of liability by any individual officer.

Use of Criminal Defendant’s Un-Mirandized Statement against Him Does Not Support Claim under 42 U.S.C. Section 1983

In Vega v. Tekoh, published June 23, 2022, the U.S. Supreme Court reversed the 9th Circuit’s decision that itself reversed a verdict in a suit under 42 U.S.C. section 1983.    The plaintiff was questioned by police at his workplace.  He was not given Miranda warnings before questioning.  His statement was used against him at his criminal trial.  The trial court ruled that because he was not in custody during questioning, his statement could be used against him.  The case ended in a mistrial.  In the retrial, the statement was again used against him.  He was acquitted.  He then sued the officer who questioned him.  Among his claims was that the officer violated his Fifth Amendment right against self-incrimination.  The district court declined to instruct the jury to find a Fifth Amendment violation if it determined that the defendant took a statement in violation of Miranda that was then improperly used against the plaintiff.  The jury found for the defendant.  The Ninth Circuit reversed, holding that use of an un-Mirandized statement against a defendant in a criminal proceeding violates the Fifth Amendment, and may support a section 1983 claim.

 

The Supreme Court majority reversed.  Examining the history of decisions interpreting its ruling in Miranda, the court concluded that the Miranda rule is a prophylactic rule that protects the rights of a person questioned in custody, including Fifth Amendment rights; and that this right is Constitutionally based.  But a violation of the Miranda right is not itself tantamount to violation of the Fifth Amendment right against self-incrimination.  Further, although it can be argued that Miranda rules constitute federal law, that law should not be expanded to include the right to sue for damages under section 1983 for its violation.  Judicially-crafted prophylactic rules should apply only where the benefits outweigh the costs.  The costs of allowing section 1983 claims for violation of Miranda rights would outweigh the costs.

 

Three justices opined that Miranda protections are rights secured by the Constitution, and therefore violation of them should be actionable under section 1983.

 

 

 

https://www.supremecourt.gov/opinions/21pdf/21-499_gfbh.pdf

Employee's Immunity Does Not Bar Public Entity's Liability under Vehicle Code section 17001

In Silva v. Langford, ordered published June 9, 2022, the Second District Court of Appeal, Division 7 affirmed in part and reversed in part a trial court's dismissal of a lawsuit after demurrer.  The operative First Amended Complaint alleged that in the early morning hours an Uber driver pulled into the Number One lane on the 101 Freeway and demanded that his passengers get out of the vehicle.  While one of the passengers was attempting to cross the lanes of traffic to get to safety, the defendant CHP officer struck and killed him.  The CHP officer was allegedly driving at an excessive speed without activating lights and sirens.  The original complaint alleged that the officer was responding to a call.  These allegations were omitted from the FAC.  The plaintiff sued the officer and CHP for wrongful death, alleging the CHP was liable under Government Code section 815.2(a) for the officer's negligence, and also liable under Vehicle Code section 17001 for the officer's violation of the basic speed law.  The officer and CHP demurred on the ground that liability was barred by Government Code section 821.6, because the officer was allegedly responding to a call, the first step in a police investigation.  CHP contended that under Government Code section 815.2(b), it was entitled to the benefit of the officer's immunity.  The trial court sustained the demurrer on the ground that section 821.6 immunized both the officer and the CHP.

The appellate court noted that the issue of the scope of section 821.6, and whether it applied to acts in the course of a police investigation or merely malicious prosecution actions, was currently pending before the California Supreme Court and was undecided.  It nevertheless ruled that the officer's actions were independently immunized under Vehicle Code section 17004, which immunizes public employees from civil damages resulting from the operation in the line of duty of an emergency vehicle when responding to an emergency call.  Although the court sustained the officer's demurrer on a different basis, the ruling must be upheld if correct on any ground.  But the appellate court reversed demurrer against the CHP.  Vehicle Code section 17001 provides an independent ground for public entity liability for negligent or wrongful operation of a motor vehicle by a public employee, which is not based on vicarious liability under Government Code section 815.2(a).  The liability is therefore not subject to Government Code section 815.2(b), which is an exception to vicarious liability of public entities for their employees' acts under section 815.2(a).

Piling onto Suspect in Violent Crime Who Posed No Immediate Threat Violated Clearly Established Right against Use of Excessive Force

In Andrews v. City of Henderson, published May 23, 2022, the 9th Circuit Court of Appeals affirmed a district court's denial of summary judgment to two police detectives.  The plaintiff was a suspected getaway driver in a series of armed robberies of businesses.  The detectives followed the plaintiff and another suspect in the robberies to a courthouse.  One detective followed them into the courthouse, where the plaintiff and the other suspect passed through a metal detector and an x-ray scanner.  The other detective waited outside the courthouse to arrest the plaintiff, because they knew he would be unarmed since he passed through the metal detector.  When the plaintiff and other suspect emerged, the detectives walked slowly toward them without identifying themselves.  When a detective was a foot away from the plaintiff, he lunged and tackled him to the ground.  The other detective landed on top of them as they fell.  The takedown fractured the plaintiff's hip, requiring two surgeries.  The plaintiff sued the detectives and the city under 42 U.S.C. section 1983 for use of excessive force.  The district court denied the officers' summary judgment motion, finding an issue of fact on whether they used excessive force.  It granted in part and denied in part the City's motion for summary judgment.  The officers appealed the denial of their summary judgment to the extent it was based on qualified immunity.

The 9th Circuit applied the two prongs of qualified immunity.  On the first prong, the court ruled the district court properly denied summary judgment on whether the officers violated the 4th Amendment in their use of force.  The officers used a substantial amount of force, which had to be justified by the need for the specific level of force.  The governmental interest in using substantial force was minimal.  Despite the violent crime of which he was suspected, at the time the force was used the plaintiff posed no immediate threat, as he was unarmed (which the detectives knew), was not engaged in criminal conduct, was not exhibiting aggressive behavior, and was not resisting arrest or attempting to flee.  Further, the officers gave no warning, and presented no evidence that tackling the plaintiff was the only option available to them.  The court then analyzed the second prong, and determined whether the plaintiff's constitutional right to be free of the force was clearly established in light of the specific context of the case.  Based on 9th Circuit case law barring tackling suspects of minor crimes who did not pose an immediate threat, combined with case law barring use of substantial force against even armed suspects who posed no threat, the law clearly established that the use of substantial force under the circumstances would violate the plaintiff's 4th Amendment rights.  Even though the plaintiff was suspected of a major, violent crime, the deciding factor is that the suspect posed no immediate threat to the officers and the public.  The court declined to exercise its discretion to review the summary judgment ruling concerning the city.

Favorable Termination Element of Section 1983 Malicious Prosecution Claim Requires Only That Prosecution Ended without Conviction

In Thompson v. Clark, published April 4, 2022, a divided U.S. Supreme Court reversed a judgment in favor of police officer defendants on a 4th amendment malicious prosecution claim.  The plaintiff was accused by a mentally ill relative of sexually abusing his one-week-old daughter.  Four police officers arrived at the plaintiff's apartment.  The plaintiff told the officers they could not enter without a warrant.  The officers entered, and, after a scuffle, handcuffed the plaintiff.  No sign of abuse was found.  The officers arrested the plaintiff for resisting their entry into the apartment.  An officer filed a criminal complaint against him for resisting arrest and obstructing governmental administration.  A judge released him.  Before trial, the court granted the prosecution's motion to dismiss the case.  No explanation was given for the motion to dismiss or the dismissal.  The plaintiff sued the officers under 42 U.S.C. section 1983 for malicious prosecution.  The district court entered judgment for the officers, on the ground that the favorable termination element of malicious prosecution could not be satisfied because the criminal case had not ended in a way that affirmatively indicated the plaintiff's innocence.  The Second Circuit Court of Appeals affirmed.  Because the circuits were split on the favorable termination element, the Supreme Court granted review.

The majority held that a 4th Amendment claim under section 1983 for malicious prosecution does not require the plaintiff to show that the criminal prosecution ended with some affirmative indication of innocence.  The plaintiff need only show that the criminal prosecution ended without conviction.  The plaintiff did so here.  The court reached that conclusion by examining the nature of the malicious prosecution tort in 1871, when section 1983 was passed.  Case law interpreting that tort required for favorable termination only that the prosecution end without conviction.  The interpretation is also consistent with the values and purposes of the 4th Amendment.  The question of whether a criminal defendant was wrongly charged does not logically depend on whether the
prosecutor or court explained why the prosecution was dismissed. The individual’s ability to seek redress for a wrongful prosecution cannot reasonably turn on the fortuity of whether the prosecutor or court happened to explain why the charges were dismissed.  Requiring an affirmative indication of innocence would paradoxically foreclose a section 1983 claim when the government’s case was weaker and dismissed without explanation before trial, but allow a claim when the government’s evidence was substantial
enough to proceed to trial.  Further, officers will be protected from unwarranted civil suits by the requirement the plaintiff show the absence of probable cause, and by qualified immunity.

Three dissenting justices opined that there should be no 4th Amendment malicious prosecution claim.

Use of Deadly Force against Person Armed with Bat Who Does Not Pose Immediate Threat Violates Clearly-Established Law

In Estate of Najrera Aguirre v. County of Riverside, published March 24, 2022, the 9th Circuit Court of Appeals affirmed denial of a police officer’s motion for summary judgment based on qualified immunity.  The defendant officer received radio reports that a person with a bat-like object was threatening a woman with a baby, and was destroying property.  The details of the conduct reported are disputed.  When the officer arrived, he ordered the decedent, at gunpoint, to drop the stick he held.  The decedent did not do so; there are accounts that he verbally refused to do so.  The officer sprayed the decedent with pepper spray, which blew back into the officer’s face.  The decedent was largely unaffected.  Some witnesses said that the decedent retrieved a bat from bushes and advanced on the officer; others say that he held the stick point down and did not advance.  The officer shot the decedent six times from no more than 15 feet. The officer contends the decedent faced him all that time.  The fatal bullets came from the back, indicating that the decedent was turned away from the officer when those bullets were fired.  The decedent’s estate and children sued the officer under 42 U.S.C.  section 1983.  The court denied the officer’s summary judgment motion, finding disputed issues of fact.

 

The 9th Circuit affirmed.  It ruled that it had jurisdiction to consider the appeal, despite the court finding issues of fact.  It then ruled that the motion was premature, because if the factual issues were resolved in the plaintiffs’ favor, the use of deadly force on a suspect who was not posing an immediate threat both violated the 4th Amendment and violated clearly established law.  It was obvious that using deadly force on a suspect who did not pose an immediate threat to the officer or others violated the 4th Amendment; and 9th Circuit case law at the time clearly established that even if a suspect was holding a weapon, use of deadly force was excessive if the suspect was not acting in a way that posed an immediate threat.

Before the Supreme Court Ruled Retaliatory Arrests Could Be Actionable Despite Probable Cause, Circuit Precedent Clearly Established That Right, Defeating Qualified Immunity

In Ballentine v. Tucker, published March 8, 2022, the 9th Circuit affirmed in part and reversed in part a district court's ruling on a police detective's summary judgment motion based on qualified immunity.  On multiple occasions, the plaintiffs engaged in protests involving chalking anti-police messages on public sidewalks.  On some occasions, they were cited for violating the state's anti-graffiti law; on other occasions, officers observed them without citing them.  The defendant detective issued declarations of arrest of the plaintiffs for two of the incidents.  The declarations referred to the plaintiffs' membership in police protest groups and the content of some of their anti-police chalk messages.  A criminal complaint was filed against the plaintiffs for conspiracy to commit placing graffiti and placing graffiti on property.  The plaintiffs were arrested.  The DA ultimately dropped all charges.  The plaintiffs sued the detective under 42 U.S.C. section 1983 for allegedly violating their 1st Amendment Rights by retaliatory arrest.  In ruling on the detective's summary judgment motion, the district court ruled on the first prong of qualified immunity that there was an issue of fact on whether the detective violated the plaintiffs' 1st Amendment rights.  But the court granted summary judgment on the second prong of qualified immunity, ruling that in August 2013, when the arrests took place, the law had not clearly established that a retaliatory arrest violated the 1st Amendment if the arrest was supported by probable cause.

The 9th circuit affirmed the ruling that a reasonable jury could find the detective violated the plaintiffs' 1st Amendment rights.  In addressing the first prong of qualified immunity--whether, viewing the facts in the light most favorable to plaintiffs, the detective violated the constitutional right at issue--the court applies current law.  Under Nieves v. Bartlett (2019) 139 S.Ct. 1715, plaintiffs bringing 1st Amendment retaliatory arrest claims must generally plead and prove absence of probable cause for the arrest; but there is a narrow exception for cases where officers have probable cause to make arrests, but typically exercise their discretion not to do so.  Here, the plaintiffs presented objective evidence that others who chalked sidewalks and did not engage in anti-police speech were not arrested.  Further, the detective cited the content of the speech in seeking the arrest.  While the jury could also infer that the detective would have arrested the protestors absent the content of their speech, the issue was for a jury to decide.  But the 9th Circuit reversed the district court's decision that the law on the subject was unclear in 2013.  While Nieves was not published until 2013, circuit case law can clearly establish the law.  9th Circuit cases that were published before 2013 clearly established that retaliatory arrests could be actionable under the 1st Amendment despite the existence of probable cause.  An unpublished 9th Circuit decision ruling that the law on the subject was not clearly established in 2013 was both nonbinding and wrongly decided.  Although the case law did not deal specifically with the facts of this case, the case law was close enough to give officers fair notice that the 1st Amendment prohibited arresting the plaintiffs.  The 9th Circuit therefore reversed summary judgment for the detective.

Police Agency Vicariously Liable for Injury Resulting when Officer's Firearm, Left in Vehicle, Is Stolen and Used

In Perez v. City and County of San Francisco, published March 1, 2022, the First District Court of Appeal, Division 5 reversed summary judgment granted to the defendant city.  The City's police department allowed officers to carry a secondary firearm on duty, and authorized them to carry loaded handguns when off-duty.  Both department policy and state law required officers to secure handguns in unattended vehicles.  The officer in this case had a personal handgun that the department had approved and qualified as a secondary firearm.  He regularly carried the handgun on duty, and transported it when he commuted to and from work.  He regularly carried it when off-duty.  He was a department specialist who worked with a special operations group outside of patrol assignments.  There was evidence specialists were on call 24/7 and were not permitted to respond to incidents without a firearm.  The officer was assigned to a training session in a different county.  When the officer returned home, during scheduled work hours, he left the secondary firearm unsecured inside his vehicle.  That night, the vehicle was broken into, and the firearm stolen.  The stolen firearm was used to kill the son of the plaintiff who brought this action.  The trial court granted the city summary judgment on the ground that the undisputed facts demonstrated the officer was not acting within the scope of his employment.

The appellate court disagreed.  Viewed in the context of the enterprise of policing, the centrality of firearms to that enterprise, and the underlying rationale for respondeat superior that losses fairly attributable to an enterprise--those that foreseeably result from the conduct of the enterprise--should be allocated to the enterprise as a cost of doing business, a jury could reasonably find a nexus between the department's policing enterprise and the risk that one of its officers would negligently fail to secure a department approved secondary firearm upon returning home from work.  A jury could therefore find the officer's negligent failure to secure his approved firearm in an unattended vehicle upon returning home from a department-assigned training fell within the scope of his employment.  The court disagreed with the majority opinion in Henriksen v. City of Rialto (1993) 20 Cal.App.4th 1612, in which an officer's accidental discharge of his firearm while drinking was friends was found to be outside the scope of his employment.  The court opined that the Henriksen majority opinion failed to rigorously apply the rules for respondeat superior liability.  The court further opined that the case was distinguishable from Henriksen, in that the officer's possession of a department-approved firearm was not the sole factor linking his conduct to his employment, and in that the officer here did not consume alcohol before the tortious act.

Where Facts Show Officers Did Not Have Time to Deliberate before Using Deadly Force, Use of Force under Circumstances Did Not Shock Conscience and so Did Not Violate Family's 14th Amendment Rights

In Ochoa v. City of Mesa, published February 28, 2022, the 9th Circuit Court of Appeals affirmed summary judgment in favor of defendant police officers and their agencies.  Two 911 calls about decedent within eight minutes of each other indicated decedent was under the influence of drugs, had been in a fight with his ex-girlfriend in which a handgun was involved, and had entered a 911 caller's house without permission armed with two knives and left in a car.  The decedent refused to pull over when followed by a marked police car.  The decedent fled to a nearby home.  A frantic man on the second floor shouted to officers that the decedent was there and was not supposed to be; and that the man was locked with children with him in a bedroom.  As police converged, the man brought several children onto the roof to evacuate them.  The decedent appeared at a window looking upset and possibly holding a knife.  He ignored orders to exit.  The officers kicked open the front door.  They saw the decedent enter the back yard.  Standing between the decedent and the home, the officers formed an L-shape around him.  The decedent held two knives in one hand and refused to obey the officers' commands to drop the knife. Officers fired a beanbag round at the decedent and unleashed a police dog at him.  He took a large step sideways and, per plaintiffs, away from the officers.  The officers fired 30 shots at decedent.  He fell with one hand tucked near his waistline.  He died at the scene.  Two knives were recovered at the scene.  Bodycam video shows 16 seconds elapsed between the officers' entry into the home and the shooting.  The decedent's family sued the officers and agencies under 42 U.S.C. section 1983, alleging that the officers violated the 14th Amendment by depriving the family of the decedent's companionship and family association.  The decedent's estate did not assert any claims.  The district court granted summary judgment on the ground that the family's 14th Amendment rights were not violated.

The 9th Circuit held that the district court had applied the correct analysis.  Since the decedent's 4th Amendment rights were personal, the family could not assert them.  They instead asserted family liberty interests under the 14th amendment due process clause.  A claim asserting the police officers violated the 14th amendment during a police shooting must show that the officers' conduct "shocks the conscience."  Two tests are used to determine whether officers' conduct shocks the conscience.  Which test is used depends on whether the officers had time to deliberate their conduct before using force.  If the situation at issue escalated so quickly that the officer had to make a snap judgment, a more demanding showing must be made:  That the officers acted with a purpose to harm the decedent for reasons unrelated to legitimate law enforcement objectives.  Here, the undisputed factsindicated that the officers did not have time to deliberate before shooting the decedent, and acted for the legitimate law enforcement purpose--protecting themselves, the people in the home, and the public at large.  Nothing in the record suggests that the officers had an improper purpose to harm.  Although the plaintiffs alleged the officers continued to shoot decedent while he was on the ground, and laughed and cheered when the police dog dragged the decedent so that they could see his hand, there was no direct evidence supporting these allegations.  Further, the officers had legitimate law enforcement purposes for the continued firing, due to concern the decedent still had knives in his waistband that he was reaching for.  The alleged cheering and laughing took place after the officers had fired at the decedent.

Officers' Use of Force to Remove Passively Resisting Protester at City Council Meeting Did Not Violate the Fourth Amendment

In Williamson v. City of National City, published January 24, 2022, the 9th Circuit Court of Appeals reversed denial of the defendant police officers' summary judgment motion, which was based on qualified immunity.  The plaintiff participated in a "die in" protest at a city council meeting.  In the middle of the meeting, they chanted and lay down on the floor near the public speaking podium.  Several others chanted along in the audience.  The protesters refused the mayor's call to order, and the officers' warning that they would be arrested.  The protesters acted as dead weight and refused to cooperate as they were carried out.  The defendant officers handcuffed the plaintiff with her wrists behind her back and pulled her to a standing position.  They lost their grip and she rolled over on her stomach.  The officers each held the plaintiff under an arm and lifted her.  She acted as dead weight.  The officers pulled the plaintiff backward by her arms while she was nearly in a seated position.  An officer dragged her by her left wrist and forearm.  When the plaintiff told the officers they had hurt her shoulder, they called an ambulance and double-cuffed her to lessen the tension.  The plaintiff refused paramedics' offer to take her to the hospital.  She suffered a sprained wrist, mild swelling, and (allegedly) a torn rotator cuff.  She sued the officers under 42 U.S.C. section 1983 and the Bane Act for allegedly using excessive force in violation of the Fourth Amendment.  The district court denied the officers' qualified immunity summary judgment motion, finding material issues of fact on whether the officers used excessive force in light of the plaintiff's injuries.

The 9th Circuit ruled that the officers were entitled to summary judgment on the first prong of qualified immunity:  viewing the facts in the light most favorable to the plaintiff, they did not use excessive force in violation of the Fourth Amendment.  The Fourth Amendment analysis balances the type and amount of force used against the government interest served.  Here, the use of force was minimal.  The inherent risk of officers pulling someone who has gone limp and refuses to move by her own power is not significant.  The force used was less than that found minimal in other 9th Circuit cases.  Although the plaintiff's injuries were not trivial, they were less than those of plaintiffs in cases where the force was found minimal.  The district court erred in focusing exclusively on the plaintiff's injuries in determining whether the force was excessive.  While the injuries are relevant, the type and amount of force used and the risk of harm it created must also be considered.  If a person reacts more adversely to a use of force than would be expected objectively, that does not itself establish that the officer did not act as a reasonable officer.  The government's interest in using force against the protesters was low, but not nonexistent.  The protesters had a right to express their disagreement with government, but they did not have a right to prevent duly installed government from performing lawful functions.  Balancing the interests, the minimal use of force aligned with the low governmental interest involved.  Because the officers did not violate the Fourth Amendment, they were also entitled to summary judgment on the Bane Act cause of action.