Government Liability Update

Section 1983 Claim for Prosecution Based on Fabricated Evidence Accrues When Criminal Prosecution Terminates in Plaintiff's Favor

In McDonough v. Smith, published June 20, 2019, the U.S. Supreme Court reversed a district court's decision that a plaintiff's claim under 42 U.S.C. section 1983 for prosecution based on fabricated evidence was time-barred.  The plaintiff, a commissioner of a county board of elections, processed forged ballots.  He alleges he was unaware the ballots were forged.  He alleges that the prosecutor falsified affidavits, coached witnesses to lie, and orchestrated a suspect DNA analysis to link the plaintiff to the forged ballots, resulting in a grand jury indictment.  The plaintiff was tried in January 2012.  The allegedly fabricated evidence was used.  The case ended in a mistrial.  The case was tried again, with the evidence used.  The trial terminated in December 2012 with an acquittal.  The plaintiff asserted a constitutional claim under section 1983 for fabrication of evidence.  The suit was brought within the statute of limitations as measured from the acquittal date.  The district court concluded that the claim accrued when the plaintiff was arrested, because he was aware that the evidence was false and he had suffered a loss of liberty.

The Supreme Court ruled that the fabrication of evidence claim was analogous to a common law claim for malicious prosecution.  As with a malicious prosecution claim, the claim did not accrue until favorable termination of the criminal case.  That rule serves the policies of avoiding conflicting criminal and civil rulings, collateral attacks on criminal convictions through civil litigation, and requiring a plaintiff to bring suit against the person prosecuting him at the same time that the plaintiff is defending himself in the criminal action.

Prosecutor's Disclosure to Superiors of Lack of Probable Cause to Prosecute Defendant Is Protected under Whistleblowing Statute

In Ross v. County of Riverside, ordered published June 10, 2019, the Fourth District Court of Appeal, Division 1 reversed summary judgment in favor of the defendant county on the plaintiff's claims for violation of Labor Code section 1102.5 and the disability discrimination provisions of FEHA.  The plaintiff, a deputy district attorney, inherited a case from another attorney, who informed her superiors and the plaintiff that she believed the defendant was innocent and that the defendant's confession was coerced.  The plaintiff repeatedly informed his superiors that he believed the DA's office lacked probable cause to prosecute the defendant.  He sent evidence out for DNA testing, obtained results that exculpated the defendant, and turned the results over to defense counsel.  The DA eventually dismissed the charges against the defendant.  Meanwhile, the plaintiff underwent testing for suspected neurological and autoimmune conditions, and requested that he be accommodated by minimizing his stress at work and not assigning him new cases until his testing was complete.  The DA's office allegedly failed to accommodate him.  The plaintiff left his position, alleging constructive termination.  The DA's office eventually declared he had abandoned his job.  The trial court granted the county summary judgment on the grounds that the plaintiff could not establish he engaged in activity protected under section 1102.5 and that he could not establish he was disabled.

The appellate court ruled that the evidence, if credited by a trier of fact, showed that the plaintiff had disclosed information protected by Labor Code section 1102.5, subdivision (b).  That subdivision forbids an employer from retaliating against an employee for disclosing information to a government or law enforcement agency, or a person with authority over the employee, if the employee has reasonable cause to believe that the information discloses a violation of state or federal statute, or a violation of or noncompliance with a local, state, or federal rule or regulation.  Disclosing information to his superiors that he reasonably believed disclosed a violation or noncompliance with the federal and state law applying to criminal prosecutions and prosecutors is protected by subdivision (b).  That includes a prosecution that the disclosure reasonably believes violates the defendant's due process rights and a prosecutor's ethical duties under state law.  The appellate court did not determine whether there was a triable issue on whether the DA's office retaliated against the plaintiff based on the disclosure.  The appellate court also determined the evidence raised a triable issue of fact on whether the plaintiff was temporarily disabled at the time he requested accommodation.

Pretextual Show-up and Manufactured Statement Leading to Charges Overcome Presumption of Prosecutorial Independence; but Promising Witness Protection Is Not Fabrication of Evidence

In Caldwell v City and County of San Francisco, published May 11, 2018, the 9th Circuit Court of Appeals affirmed in part and reversed in part summary judgment in favor of the defendant officers.  The plaintiff was convicted of murder and sentenced to over 20 years in prison.  He got out of prison on a habeas corpus petition.  He alleged that one of the defendants, a police officer whom the plaintiff had requested an inspection of and who had told the plaintiff, "I'm going to kill you," had conducted a pretextual show-up by taking the plaintiff to the home of a witness to a shooting, asking if the homicide inspector was there, introducing the plaintiff to the inspector, and requesting the inspector's keys even though the defendant officer had a car in the neighborhood.  He further alleged that the defendant officer took a statement from the plaintiff that the plaintiff had been visiting an uncle in the vicinity of the shooting, and falsely wrote in his notes that the plaintiff had stated he was dealing drugs at the time, and was present at the time of the shooting but down the street.  He contended two other defendant officers conducted an unrecorded photo lineup with the suspect so that they could coerce her into picking the plaintiff, and that they further coerced her by offering her protection if she picked one of the suspects in the lineup.  The plaintiff sued the defendants under 42 U.S.C. section 1983 for fabricating evidence.  The district court granted summary judgment on the ground that the prosecutor's decision to charge the plaintiff was presumed to be independent of the alleged fabrications, and that the plaintiff had failed to overcome the presumption.

The 9th Circuit reversed the grant of summary judgment to the officer who had threatened the plaintiff and who alleged staged the pretextual show-up and fabricated the notes.  There is a clearly-established constitutional due process right not to be subject to criminal charges based on false evidence that was deliberately fabricated by the government.  A plaintiff can produce evidence of direct fabrication, or can produce circumstantial evidence related to a defendant's motive.  To use circumstantial evidence, the plaintiff must support either of two propositions:  That defendants continued their investigation even thought they knew or should have known the plaintiff was innocent, or used investigative techniques so coercive and abusive that they knew or should have known they would yield false information.  As to the officer who threatened the plaintiff, the plaintiff alleged direct evidence of fabrication.  There were issues of fact on whether the officer staged the show-up and whether the officer fabricated notes.  The presumption of prosecutorial independence was overcome, because deliberately fabricated evidence in a prosecutor's file can rebut any presumption of prosecutorial independence.  Evidence that the officer knowingly withheld relevant information from the prosecutor can also rebut the presumption.  The prosecutor's consideration of potentially fabricated evidence rebuts any presumption of independent judgment and creates a triable issue for the jury.  There was insufficient circumstantial evidence that the other two defendants fabricated evidence through coercive means.  In particular, offering the witness protection if she testified is not so coercive that it would lead to false testimony.  Summary judgment was affirmed as to those defendants.

Recovery of Personal Property Seized Through Improper Police-Initiated Nonjudicial Forfeiture Does Not Require Exhaustion of Administrative Remedies or Presentation of Claim for Damages, and a Three-Year Statute of Limitations Applies

In Ramirez v. Tulare County District Attorney's Office,  published March 15, 2017, the Fifth District Court of Appeal reversed the dismissal on demurrer of multiple trial court petitions for writ of mandate seeking recovery of cash and other personal property that police officers seized from suspects under Health & Safety Code section 11469 et seq. Those forfeiture statutes permit both judicial and nonjudicial forfeiture of personal property connected with unlawful drug activity.  The statutes require that either judicial or nonjudicial forfeitures be initiated by the state attorney general or county district attorney.  The forfeitures at issue were initiated by police officers, rather than prosecutors.  The Tulare County District Attorney's Office asserted that eachwrit petition was barred by the failure to exhaust statutory administrative remedies, failure to present a claim for money or damages under the Government Claims Act, and failure to file the petition within the one-year statute of limitations prescribed by Code of Civil Procedure section 340.  The trial court sustained the demurrers on the statute of limitations ground.

The appellate court held that the petitioners had no obligation to exhaust the administrative remedies under the forfeiture statutes, because there were no valid forfeiture proceedings in which to pursue those remedies.  The police initiation of nonjudicial forfeiture rendered the forfeitures invalid in the first instance.  The Government Claims Act did not require presentation of claims for money or damages, because the petitioners sought return of property, not money or damages.  Finally, the one-year statute of limitations of Code of Civil Procedure section 340 did not apply, because it applies to forfeiture actions (i.e., actions seeking forfeiture) or actions for damages for seizure or forfeiture of property.  Instead, the three-year statute of limitations under Code of Civil Procedure section 338 for actions seeking specific recovery of personal property applied.

Federal Prosecutorial Immunity Does Not Apply to Declarations in Support of Subpoenas; 9th Circuit Declines to Follow Lower California Courts on State Prosecutorial Immunity

In Garmon v. County of Los Angeles, published July 5, 2016, the 9th Circuit reversed in part a district court order dismissing a pro se plaintiff's complaint.  The plaintiff was an alibi witness in her son's murder trial.  Because she was undergoing surgery for cancer, her deposition was taken.  She authorized her healthcare provider to release records concerning her cancer treatment to the prosecutor.  The prosecutor sent a subpoena duces tecum to the provider for the plaintiff's medical records.  The subpoena asked for all of the plaintiff's medical records, not just those for cancer treatment.  The prosecutor's accompanying declaration erroneously stated that the plaintiff was the victim in a murder prosecution.  The provider released all of the plaintiff's medical records to the prosecutor, who used them to impeach the plaintiff's credibility at trial.   She sued the prosecutor, the district attorney, and the county under 42 U.S.C. section 1983 and California state law. The district court ruled that the individual defendants were entitled to absolute prosecutorial immunity, and that the plaintiff had failed to plead facts creating Monell liability for the County.

The 9th Circuit rejected the plaintiff's argument that federal absolute prosecutorial immunity did not apply to cases brought by third party witnesses.  Instead, it affirmed application of absolute prosecutorial immunity to the prosecutor's actions in subpoening the records and in using the records at trial.  When engaged in that conduct, the prosecutor was acting as an advocate at trial, which the immunity protects.  The appellate court ruled, however, that the prosecutor's act of providing the declaration in support of the subpoena was not subject to absolute immunity.  When providing the declaration, the prosecutor was acting as a witness, not a prosecutor, since a non-prosecutor could have provided the declaration.  The DA's immunity was co-extensive with that of the prosecutor.  Although the district court properly ruled that the complaint did not state a claim against the County under section 1983, the court erred in dismissing the pro se plaintiff's complaint on that ground without granting leave to amend.

The 9th Circuit reversed the district court's ruling that Government Code section 821.6 immunized the defendants from liability under the plaintiff's California state law claims.  The court followed the California Supreme Court's decision in Sullivan v. County of Los Angeles (1974) 12 Cal.3d 710, which applied section 821.6 only to malicious prosecution actions.  Although numerous California lower appellate court decisions later interpreted section 821.6 more expansively, the 9th Circuit declined to follow them, and confined section 821.6 to malicious prosecution claims.  (This creates a conflict between 9th Circuit and California law on the subject.)

Although Statutory Immunity Does Not Apply to False Imprisonment Claim against Assistant DA, Common-Law Immunity Applies

In Bocanegra v. Jakubowski, published October 27, 2015, the Fourth District Court of Appeal, Division 2 affirmed the dismissal of the plaintiff's claims against an assistant district attorney for the plaintiff's imprisonment and the injuries he allegedly received during that imprisonment.  Police officers arrested the plaintiff based on a bench warrant for a person with a similar name.  The plaintiff alleged that the defendant assistant DA had information that would show that the plaintiff was wrongfully imprisoned, but did not investigate whether he was the wrong person or turn over the exculpatory information to the plaintiff's defense attorney.  When the plaintiff appeared before a judge, he was freed.

The appellate court agreed with the trial court that the assistant DA was statutorily immune from all causes of action except false imprisonment.  Government Code section 821.6's prosecutorial immunity applied to those causes of action.  The court majority disagreed with the trial court's conclusion that section 821.6 applied to the false imprisonment cause of action.  It held that section 821.6 does not apply to a false imprisonment claim that a lawfully arrested prisoner was imprisoned past the time he should have been freed due to negligence of a prosecutor.  The majority ruled, however, that the statutory immunity did not preempt the common law immunity that applies to judicial officers and those involved in the judicial process.  By prosecuting the action, the assistant DA was acting as a judicial officer.  He was thus entitled to common-law immunity.  A concurring justice opined that section 821.6 should have immunized the DA from liability under all of the causes of action.

Prosecutors Are Entitled to Absolute Immunity for Obtaining Warrants for Civil Forfeiture, But Only Qualified Immunity for Executing the Warrants

In Torres v. Goddard, published July 16, 2015, the 9th Circuit Court of Appeals affirmed in part and reversed in part a 42 U.S.C. section 1983 lawsuit against Arizona state prosecutors for executing warrants to seize thousands of wire transfers allegedly connected with smuggling illegal aliens over the border.  The 9th Circuit agreed with the district court that the absolute immunity that applies to criminal prosecution is also available to prosecutors who pursue civil forfeiture actions.  Whether absolute immunity applies depends on the conduct for which the prosecutor is sued.  The actions of the defendant prosecutors in applying to the court was subject to absolute immunity, because they were intimately associated with the judicial phase of civil forfeiture.  But the prosecutors were entitled only to qualified immunity for serving and executing the warrants.  Under Arizona law, police officers, rather than prosecutors, serve and execute warrants.  The prosecutors were therefore acting as police officers rather than prosecutors in executing and serving the warrants, and were entitled only to the qualified immunity police officers enjoy.