Government Liability Update

Police Chief Violates Clearly-Established Law by Allegedly Discriminating against Female Officer and Retaliating against Her for Filing Suit

In Ballou v. McElvain, published September 28, 2021, the 9th Circuit Court of Appeals affirmed a district court's denial of a police chief's summary judgment based on qualified immunity.  The plaintiff took an exam to determine elegibility for promotion to sergeant.  Soon after the exam, the plaintiff was investigated by internal affairs for failing to write a report on an incident.  The plaintiff received a letter of reprimand, and the police chief announced that based on the investigation and the plaintiff's failure to follow protocol, he did not intend to promote her.  A group of female officers (not including plaintiff) met with the police chief and pointed out a male officer accused of similar conduct had received an oral reprimand and had not been investigated by internal affairs.  The day after the meeting, the chief announced he would promote the officer ranked directly below the plaintiff on the sergeant's list.  The plaintiff emailed the chief and city manager, complaining that the chief had promoted male officers who had sustained IA investigations against them for more serious offenses.  She stated she had hired a lawyer, but wanted to work the matter out.  After the e-mail, the plaintiff was the subject of eight IA investigations.  After the plaintiff presented two state law tort claims and filed her lawsuit, the chief promoted the male officer ranked below the plaintiff on the list.  The chief asserted he did not know of the lawsuit when he promoted the officer. The plaintiff was eventually promoted to sergeant, months later. The plaintiff alleged denial of equal protection and retaliation for exercise of her First Amendment rights.  The district court denied the chief's motion for summary judgment on these claims based on qualified immunity.

The 9th Circuit ruled that the plaintiff had stated a prima facie case of disparate treatment under Equal Protection and had raised a genuine issue of fact on whether the chief's legitimate reason for his actions was prextextual.  The chief asserted that proof of discriminatory animus will not establish an Equal Protection violation absent proof that others similarly situated were treated more favorably.  The 9th Circuit ruled that this was "profoundly incorrect."  Although comparator evidence may substitute for direct evidence of discriminatory animus, it is not necessary if there is direct proof of discriminatory animus.  Regarding qualified immunity, if the factual issues were resolved in the plaintiff's favor, the chief's alleged conduct of discriminatorily conducting an investigation and using the investigation to deny promotion fell within previously decided 9th Circuit cases, such that any reasonable officer would recognize that conduct as unconstitutional.  Similarly, existing precedent established that retaliating against an employee for the lawsuit, the state tort claims, and the internal e-mail violated the First Amendment, particularly in light of the multiple officers who met with the chief, showing the public interest in the situation.

 

Plaintiff Who Pleads No Contest to PC 148(a)(1) Is Barred under Heck v. Humphrey from Suing for Excessive Force

In Sanders v. City of Pittsburg, filed September 23, 2021, the 9th Circuit Court of Appeals affirmed dismissal of a 42 U.S.C. section 1983 claim for use of excessive force.  Police spotted the plaintiff in a stolen car, and chased him.  Eventually a police dog bit him.  The plaintiff pleaded no contest to multiple charges arising out of the incident, including a violation of Penal Code section 148(a)(1) for resisting arrest.  While his criminal case was pending, he sued the officer who used the police dog for use of excessive force.  The district court granted the defense's motion to dismiss based on the argument that Heck v. Humphrey (1994) 512 U.S. 477 barred the action.

The 9th circuit agreed.  Under Heck a section 1983 claim must be dismissed if a judgment for the plaintiff would necessarily imply the invalidity of the plaintiff's conviction or sentence.  Section 148(a)(1) bars resisting, delaying, or obstructing an officer during the lawful exercise of his duties.  Use of excessive force is not within the performance of the officer's duty.  A defendant cannot be convicted under section 148(a)(1) if the officer used excessive force at the time of the acts resulting in the conviction. Therefore, Heck bars the plaintiff's lawsuit.

A Preempted Criminal Ordinance Cannot Furnish Probable Cause to Arrest

In Carcamo v. Los Angeles County Sheriff's Department, published September 3, 2021, the Second District Court of Appeal, Division 3 reversed a jury verdict in favor of the defendant agency and its deputies.  The defendant deputy arrested the plaintiffs because the deputies believed they appeared intoxicated in a public place.  Penal Code section 647(f) provides that if a person is found in a public place under the influence of intoxicating liquor, in a condition that they are unable to care for their own or others' safety, or are interfering with or obstructing the free use of a public way, is guilty of disorderly misconduct.  There was no evidence the plaintiffs were unable to care for themselves or others, or were obstructing the free use of a public way.  Instead, the deputy arrested them for violating a City of Carson ordinance against public intoxication, which did not impose those requirements.  The plaintiffs sued the deputy and agency for false arrest.  The jury was instructed that if the arresting deputy observed each plaintiff violating the Carson Municipal Code section, he had reasonable cause to believe each had committed a crime in his presence.  

The appellate court held that the jury instruction was erroneous.  The California Supreme Court has long held that California has adopted a general scheme for regulating the crime of being intoxicated in a public place.  That scheme is set forth in Penal Code section 647(f).  The Supreme Court and subsequent lower court cases also held that local criminal ordinances prohibiting public intoxication are void.  Reasonable or probable cause justifying an arrest requires that the officer have objective cause to believe that the plaintiff committed a crime in his presence.  Violation of a void ordinance, even one that remains on the books, cannot provide that reasonable/probable cause.

Family of Decedent May Recover "Loss of Life" Damages under 42 U.S.C. § 1983, Even Though Barred by California Law

In Valenzuela v. City of Anaheim, published August 3, 2021, a divided panel of the 9th Circuit Court of Appeals affirmed a judgment based on jury verdict for the plaintiffs in a 42 U.S.C. section 1983 action.  The defendant officers tased and used multiple choke holds on a "suspicious person" at a laundromat who had a screwdriver in his bag and who did not immediately comply with a command to put his hands behind his back.  The decedent fell into a coma, and died eight days later.  The jury awarded the decedent's family a total of $13.2 million in damages.  The award included $3.6 million for the decedent's pre-death pain and suffering; $3.6 million for the decedent's children's loss of decedent's companionship and society; and $3.6 million for decedent's "loss of life."  The defendants appealed the award of damages for decedent's loss of life, on the ground that California state law on wrongful death damages (Code of Civil Procedure section 377.34) barred damages for loss of life.  The district court rejected the defendants' argument.

The majority of the 9th Circuit panel agreed.  Because section 1983 is silent as to loss of life damages, the California law barring such damages controls, unless it is inconsistent with the policies of section 1983.  In Chaudhry v. City of Los Angeles, 751 F.3d 1096 (9th Cir. 2014), the 9th Circuit concluded that California law's ban on damages for pre-death pain and suffering was inconsistent with he policies of section 1983.  Section 1983 was intended to provide a remedy for killings unconstitutionally caused or acquiesced in by state governments, the  Chaudhry court concluded; and in cases where the victim dies quickly, there often will be no damages remedy at all under section 377.34.  The Chaudhry court therefore concluded that section 377.34 does not apply to section 1983 claims where the decedent's death was caused by violation of federal law.  The majority saw no meaningful way to distinguish Chaudhry from this case.  

A dissenting judge concluded that the award of damages for the decedent's pre-death pain and suffering was sufficient to satisfy section 1983's remedial purpose without also awarding damages for loss of life.  He further urged the court to revisit Chaudhry en banc.

For Heck v. Humphrey Purposes, Conviction for Violation of PC 148(a)(1) Establishes That Officer’s Use of Force During Arrest Was Lawful

In Lemos v. County of Sonoma, published July 16, 2021, a divided panel of the 9th Circuit Court of Appeals affirmed summary judgment in favor of defendants in the plaintiff’s suit under 42 U.S.C. section 1983 for alleged use of excessive force.  One of the defendant officers saw a pickup truck obstructing a lane of traffic and heard screaming.  The plaintiff attempted to interfere with the officer’s interview of the pickup’s occupants.  The plaintiff started walking away from the truck and did not respond to the officer’s order to stop.  The officer grabbed her shoulder and brought her to the ground.  The plaintiff was prosecuted for violation of Penal Code section 148(a)(1)—resisting, delaying, or obstructing an officer in the performance of his duties.  The jury was instructed that the would have to find that the officer was lawfully performing or attempting to perform his duties as a peace officer, and that a peace officer is not lawfully performing his duties if the officer is using unreasonable or excessive force in his duties.  The jury was further instructed that the plaintiff could be found liable on one of four different theories of liability, representing different acts plaintiff performed during the officer’s investigation of the truck.  The jury convicted her, using a general verdict.  The district court granted summary judgment, on the grounds the Heck v. Humphrey doctrine barred the action.On appeal , the plaintiff contended that the jurors in the criminal trial did not necessarily find that she was guilty of pulling away from the arresting officer at the time he arrested her, and she could therefore sue the officer for using excessive force in response.

 

The majority affirmed summary judgment.  Under the Heck v. Humphrey doctrine, when a plaintiff who has been convicted of a crime under state law seeks damages in a section 1983 suit, the district court must consider whether a judgment in favor of the plaintiff would necessarily imply the invalidity of his conviction or sentence.  A plaintiff’s allegation of excessive force by a police officer is not barred by Heck if the officer’s conduct is distinct temporally or spatially from the factual basis of the plaintiff’s conduct.  Under Heck, the relevant inquiry is whether the record contains factual circumstances that support the underlying conviction under section 148(a)(1), not whether the conviction was obtained by a jury verdict or a guilty plea.  A conviction under section 148(a)(1) is valid only when the officer was acting lawfully at the time the offense against the officer was committed.  Here, by finding the plaintiff guilty, the jury was finding that the officer acted lawfully through the continuous chain of events that day, even when he placed the plaintiff under arrest.

 

A dissenting judge opined that the decision would encourage officer overreaction to minor criminal behavior.

Tolling of Statute of Limitations for Minor's Suit includes the Date of the Minor's 18th Birthday

In Shalabi v. City of Fontana, published July 12, 2021, the California Supreme Court affirmed a lower appellate court's decision that a 42 U.S.C. section 1983 lawsuit against the defendant city was filed within the statute of limitations.  The plaintiff alleged that on May 14, 2011, a city police officer wrongfully shot and killed the plaintiff's father.  The plaintiff was a minor at the time.  The minor's 18th birthday was December 3, 2011.  The minor filed suit December 3, 2013.  The trial court held a bifurcated bench trial on whether the suit was barred by the two-year statute of limitations.  The trial court concluded that the minor filed the suit one day late.  Although the statute of limitations was tolled while the plaintiff was a minor, the trial court relied on the unpublished California Supreme Court decision in Ganahl I, which included the date the minor plaintiff in that case reached the age of majority in calculating when the statute of limitations period commenced after tolling during minority ended.  The appellate court reversed, holding that the minor's 18th birthday should have been excluded in calculating when tolling ended and the statute of limitations began.

The California Supreme Court agreed. State law controls tolling of the statute of limitations for a section 1983 claim. Under Code of Civil Procedure section 352(a), when a minor is injured, the statute of limitations is tolled until the minor turns 18.  Code of Civil Procedure section 12 sets forth the ordinary rule for computing time.  Under it, the time within which any act provided by law is to be done is computed by excluding the first day and including the last (unless the last day is a holiday).  A uniform rule governing the method of computing time promotes clarity and stability. A case will not be
found to come under an exception to the general rule unless there is a clear expression of provision for a different method of computation.  There is no such expression concerning minors.  The Ganahl I case is not binding authority, because there was an in-bank decision after it; and it is not persuasive authority.  Because the plaintiff's December 3, 2011 birthday was included in the tolling period, the lawsuit brought December 3, 2013 was timely.

Court Must Analyze Facts and Circumstance to Determine Whether Officers Used Unconstitutional Amount of Force

In Lombardo v. City of St. Louis, published June 28, 2021, the U.S. Supreme Court, in a split per curiam opinion, reversed and remanded a summary judgment granted in favor of police officers.  The plaintiffs' decedent was arrested for trespassing and failure to appear in court for a traffic ticket.  While he was in jail, the decedent put a piece of clothing around his neck and tied it to the bars of his cell.  Multiple officers entered his cell. The decedent resisted. The officers handcuffed the decedent and put him in leg irons.  They moved him into a prone position, and an officer placed pressure on the decedent's back and torso.  After 15 minutes of struggling in this position, the decedent expired.  The decedents parents sued the police officers under 42 U.S.C. section 1983.  The district court granted summary judgment on the ground of qualified immunity.  The circuit court affirmed on the ground that the officers did not apply unconstitutionally excessive force.

The majority reversed the circuit court decision.  In assessing whether officers used excessive force, a court asks whether the offices' actions are objectively reasonable in light of the facts and circumstances confronting them.  Courts cannot apply the standards mechanically.  It requires careful attention to the facts and circumstances of each particular case.  Circumstances include the relationship between the need for the use of force and the amount of force used; the extent of the plaintiff ’s injury; any effort made by the officer to temper or to limit the amount of force; the severity of the security problem at issue; the threat reasonably perceived by the officer; and whether the plaintiff was actively resisting.  The majority ruled that it was unclear whether the circuit court thought the use of a prone restraint is per se constitutional so long as an individual appears to resist officers' efforts to subdue him, no matter the kind, intensity, duration, or surrounding circumstances.  Factors such as the agency instructing its officers that pressing down on the back of a prone suspect can cause suffocation, and police guidance to get a subject off his stomach as soon as handcuffed to avoid suffocation and that struggles may be due to oxygen deficiency rather than desire to disobey officer commands, may be pertinent, along with the duration of the restrain and the fact the decedent was shackled.  The court expressed no view on whether the use of force was excessive or whether the officers were entitled to qualified immunity, but remanded the summary judgment to the circuit court.

Three justices dissented, opining the court should either deny review, or grant review and have the matter briefed and argued before deciding it.  

Time to File Suit in State Court Is Tolled While Federal Action Is Pending, Through Mandate Issued in Appeal of Right

In Sales v. City of Tustin, published June 8, 2021, the Fourth District Court of Appeal, Division 3 reversed summary judgment in favor of the defendant city, granted based on the statute of limitations.  Plaintiff alleges her decedent fled an improper detention, was chased into traffic, and was killed.  On the last day to file a lawsuit under California law (six months after her claim was denied), the plaintiff filed a suit in federal court alleging federal and state causes of action.  The district court denied a defense summary judgment motion based on qualified immunity.  The defendants took an interlocutory appeal to the 9th Circuit.  That court reversed the denial of summary judgment.  On remand, the district court concluded that the appellate ruling resolved all of the federal claims in favor of the defendants, and entered judgment on those claims.  The court declined supplemental jurisdiction over the state law claims, and dismissed them.  That occurred in 2016.  The plaintiff appealed the result to the 9th Circuit.  The 9th Circuit affirmed the decision.  The court then denied a rehearing en banc.  The court issued its mandate on December 5, 2018.  The plaintiff refiled her state law causes of action in state court on December 19, 2018.  The trial court granted the defendants summary judgment on the ground that under 28 U.S.C. section 1367, the plaintiff's time to file her state court claim was tolled only until the district court dismissed the state law claims in 2016.

The appellate court concluded that the trial court interpreted section 1367 incorrectly.  Section 1367 governs supplemental jurisdiction over state law claims in federal court.  Subdivision (d) provides that the period of limitations for any state claim joined with federal claims shall be tolled while the claim is pending in federal court, and for a period of 30 days after it is dismissed.  The appellate court joined the majority of courts to extend the tolling deadline through the pendency of an appeal of right, through the mandate returning the appeal to the district court, and then for 30 days after the mandate.  That the appeal addressed only the dismissal of the federal claims, and not the state claims, did not matter; if the federal court had reversed judgment on the federal claims, the district court might have reasserted jurisdiction over the state law claims.

Government Code Section 821.6 Immunizes Officers for Failing to Cover Partially Nude Decedent During Investigation

 

****Update:  On August 18, 2021, the California Supreme Court granted review of this decision.  The order granting review specified that the lower court decision could continue to be cited for its persuasive authority.****

In Leon v. County of Riverside, published May 27, 2021, the Fourth District Court of Appeal, Division 2 affirmed summary judgment in favor of the defendant county and deputies in a lawsuit alleging negligent infliction of emotional distress.  The plaintiff's husband was shot by a neighbor.  When a deputy arrived on the scene, he believed the decedent to be dead, but began rendering aid.  Shots rang out from neighboring property.  The deputy evacuated the area, forcing the plaintiff to leave.  When a second deputy arrived, the first deputy moved an SUV between the body and the source of the shots, and the second dragged the decedent behind the SUV.  As he did, the decedent's pants were pulled down, exposing his genitals.  The second deputy attempted chest compressions and announced the decedent dead.  More deputies and officers arrived, and nearly four hours after the first deputy arrived the shooter was found dead of a self-inflicted wound.  The body remained with its genitals exposed for approximately another four hours, when the coroner finished processing the body and collecting evidence.  The first deputy and lead investigator testified that they did not know why the body was not covered after the shooter was found dead.  The trial court granted summary judgment based on the immunities set forth in Government Code sections 815.2(b) and 821.6

The appellate court agreed that the statutes applied.  As interpreted by multiple appellate court opinions, Government Code section 821.6 immunizes the deputies from liability for any negligence in leaving the decedent's body exposed.  Section 821.6 immunizes public employees from liability for any injury-causing act or omission in the course of an investigation that may precede the institution and prosecution of a judicial or administrative proceeding.  In light of the investigation of the body, and statutory law barring moving a decedent, the acts for which the deputies were sued were part of their investigation.  Any negligence in leaving the body uncovered when it might have been uncovered is subject to the immunity.  Under Government Code section 815.2(b), the county cannot be held liable for the deputies' acts where the deputies are immune.  Government Code section 815 immunizes the county from any direct liability for negligence, because there is no statutory basis for that negligence.  Catsouras v. Department of California Highway Patrol was distinguishable, because the court in that case found that sharing photos of a decedent's remains was not part of official police business.  The court rejected an argument that the case law applying section 821.6 to investigations was wrongly decided, finding support for the statute in pre-Government Claims Act common law.

A concurring justice noted that the California Supreme Court had apparently interpreted section 821.6 to apply only to malicious prosecution, and that federal courts had followed that line of authority.  The justice agreed with the majority, however, that the lower courts had interpreted section 821.6 to apply to torts other than malicious prosecution.

Prison Officer Did Not Violate Clearly-Established Law by Listening in on Portions of Prisoners' Phone Conversations with Civil Attorneys

In Witherow v. Baker, published May 18, 2021, a divided 9th Circuit panel affirmed summary judgment for a prison officer in a suit under 42 U.S.C. section 1983 alleging violation of a prisoner's Fourth Amendment rights.  The prison unit the plaintiff was in did not allow prisoners to use wall phones.  The unit had a single portable phone, and each prisoner's use was limited to 20 minutes.  The phone did not have caller ID.  The officer would use a speaker and a flip switch to monitor the beginning of the call, to check whether the call was to an attorney or an attorney's office.  The officer would then stop listening.  Later in the call, the officer would check again, to see whether the prisoner had called someone else, and to make sure the prisoner was not depriving others of the phone by making unauthorized calls.  The district court granted the officer summary judgment, based on qualified immunity, on the grounds that she had not violated the plaintiff's Fourth Amendment rights, and that if she had violated any such right, the right was not clearly established

The panel majority ruled that the officer was entitled to qualified immunity on the second prong:  the right was not clearly established.  The plaintiff failed to identify any binding authority, or a consensus of law, that a prison officer listening in on a prisoner's phone call with a civil attorney violated the prisoner's Fourth Amendment rights.  The majority further concluded that there was no need to address whether the officer's actions had violated the Fourth Amendment, because the situation was fact bound (involving technology from 2007-2008); it was unclear whether violation of the attorney-client privilege would involve the Fourth Amendment; and prisoners can challenge similar practices by bringing suits for declaratory and injunctive relief.

A judge wrote an opinion concurring in part and dissenting in part.  The judge opined that the panel should address whether the conduct violated the Fourth Amendment, to develop the law on that subject.