Government Liability Update

Officer Entitled to Qualified Immunity for Shooting Suspect Who Had Opened Door with Knife Raised; Excessive Force with Intent to Violate Fourth Amendment Violates Bane Act

In Reese v. County of Sacramento, published April 23, 2018, the 9th Circuit Court of Appeals affirmed a district court's post-verdict order granting judgment as a matter of law on a 42 U.S.C. section 1983 claim under the Fourth Amendment, but reversed its sua sponte grant of summary judgment on a Civil Code section 52.1 Bane Act claim.  Sheriff's deputies had received reports that a man in the plaintiff's apartment was armed.  One deputy knocked on the door while another covered the door with a rifle.  The plaintiff opened the door with a large knife in his hand, raised, about a foot from the knocking deputy.  The deputy with the rifle fired at the plaintiff.  The other deputy entered the apartment, expecting to see the plaintiff shot and incapacitated.  He saw the plaintiff standing upright, and fired his handgun at the plaintiff.  The plaintiff survived.  He sued the officers under section 1983 and the Bane Act for use of excessive force.  The jury made a finding that the officer with the handgun shot the plaintiff, rather than the officer with the rifle; and that at the time he was shot, the plaintiff did not pose an immediate threat.  The district court granted a JMOL on the section 1983 claim based on qualified immunity, and sua sponte granted summary judgment on the Bane Act claim, concluding that the claim required an act of intimidation or force apart from the constitutional violation itself.

The 9th Circuit affirmed the judgment on the section 1983 claim.  The first prong of qualified immunity, whether there was a constitutional violation, was resolved against defendants by the jury.  But the second prong--whether the law clearly established that the deputies' acts under the circumstances violated the Fourth Amendment--was an issue for the court, not the jury.  Since there were no court decisions at the time sufficiently similar to place beyond debate that the second deputy's use of force violated the Fourth Amendment, the district court properly granted qualified immunity.

The 9th Circuit reversed the summary judgment on the Bane Act, based on subsequent California appellate court law.  That law established that outside of negligence cases, no act of threat or intimidation besides the constitutional violation is necessary for a Bane Act violation.  But a Bane Act violation does require a showing of specific intent by the defendant to violate the plaintiff's constitutional rights.  The court remanded the Bane Act claim for a determination of whether the deputy had the specific intent necessary for a violation.

Sheriff Cannot Be Held Liable in Individual Capacity for Allegedly Improper Conditions of Civil Detention

In King v. County of Los Angeles, published March 12, 2018, the 9th Circuit affirmed in part and reversed in part summary judgment granted to the defendant county and its sheriff.  While awaiting adjudication of an involuntary commitment petition under California’s Sexually Violent Predator Act, the plaintiff was incarcerated in a county jail for eight years.  For more than six of those years, he was confined in administrative segregation with criminal detainees.  He was required to wear a red jumpsuit that identified him as a SVP detainee.  He was attacked by fellow inmates, allegedly because of the red suit.  He was eventually transferred to a mental hospital, with more favorable conditions, until he passed away.  During his confinement in jail, he brought this suit, alleging his confinement violated substantive due process.  The defendants contended he was appropriately imprisoned due to his violent tendencies.  The plaintiff contested those facts.  The district court concluded that there was a legitimate, non-punitive ground for imprisoning him in the jail under the challenged conditions.

The 9th Circuit reversed summary judgment for the county and for the sheriff in his official capacity.  Under the Fourteenth Amendment, a civil detainee cannot be subjected to conditions that amount to punishment.  Confinement conditions are presumably punitive if they are identical, similar to, or more restrictive than those in which criminal counterparts are held.  They are also presumed punitive if a detainee awaiting adjudication under SVPA is detained under conditions more restrictive than those who have been committed under SVPA.  Viewing the facts in the light most favorable to the plaintiff, both presumptions applied.  There was a triable issue of fact on whether there was a legitimate, non-punitive ground for the conditions of confinement. 

There was, however, no evidence that the sheriff supervised the day-to-day operation of the jail, or was personally involved in the plaintiff's confinement.  The district court therefore properly granted him summary judgment.

Police Supervisors Violated Clearly-Established Law if They Terminated Probationary Officer for Extramarital Affair

In Perez v. City of Roseville, published February 9, 2018, the 9th Circuit reversed in part summary judgment in favor of a former probationary police officer's supervisors in a 42 U.S.C. section 1983 suit challenging her termination.  An internal affairs investigation determined that the plaintiff was involved in an extramarital affair with another officer.  The investigation was initiated because of a complaint that the officers were engaging in sexual relations on duty.  That portion of the allegation was not corroborated.  The department terminated the officer based on a number of reasons purportedly unrelated to the affair.  The officer alleged that the termination violated her constitutional rights to privacy and intimate association.  She also alleged that the termination violated her due process right to a liberty interest hearing before termination. She further alleged sex discrimination.

The 9th Circuit, disagreeing with other circuits, held that the defendants violated the plaintiff's rights to intimate association and privacy if they terminated her based on disapproval of her off-duty sexual activity and the activity did not affect her job performance or violate a narrowly-tailored regulation.  Further, 9th Circuit precedent had clearly established that rule, so the defendants were not entitled to qualified immunity.  Issues of fact on whether the termination was impermissibly based on those factors prevented summary judgment.  The defendants were, however, entitled to summary judgment to the due process claims.  Any due process rights a probationary officer had under the circumstances were not clearly established at the time.  Summary judgment on the sexual discrimination claim was also upheld; any discrimination was based on the plaintiff's activities, not her gender.

Pro Se Prisoner's Exhaustion of Administrative Remedies Does Not Affect Accrual of Claim, but May Equitably Toll Statute of LImitations

In Soto v. Unknown Sweetman, published February 9, 2018, a divided 9th Circuit panel affirmed a district court's grant of summary judgment to the defendants in a pro se prisoner's 42 U.S.C. section 1983 action against several prison guards.  The plaintiff alleged that in 2010 he was beaten by the defendant guards.  He did not file suit until 2014.  The defendants sought summary judgment based on the two-year statute of limitations.   The plaintiff argued that his exhaustion of the state law administrative remedies delayed accrual of his cause of action until exhaustion was complete, since the Prison Litigation Reform Act requires exhaustion before a federal lawsuit is brought.  He alternatively argued that exhaustion equitably tolled his time to sue.  The district court rejected both arguments.

The 9th Circuit panel unanimously held that the PRLA's exhaustion requirement does not affect the date of accrual of a pro se prisoner's cause of action.  The policies served by statutes of limitation are not furthered by delaying the start of the time to sue until exhaustion.  The court held that unfairness when the exhaustion period exceeds the statute of limitations is best served by equitably tolling the limitations period during exhaustion.

The majority also held, however, that the plaintiff had failed to raise a factual issue on whether he was entitled to equitable tolling.  Although he argued that the exhaustion period took over four years, because he waited for an administrative body to notify him of the conclusion of its investigation before he began the next step of his exhaustion requirement, the majority ruled that he failed to submit sworn evidence that he had relied on the investigation in delaying his exhaustion or that he had diligently pursued his remedies.  To the contrary, the evidence showed that the plaintiff did not wait for the conclusion of the investigation before re-starting the administrative exhaustion requirement.  It also did not show diligence.  He therefore failed to show entitlement to equitable tolling.

A dissenting judge opined that the majority had failed to give the plaintiff the latitude to which pro se prisoners are entitled, and had come up with arguments that the defendants did not make in their answering brief.

 

Officers Entitled to Qualified Immunity for Warrantless Arrest unless Body of Relevant Case Law Clearly Establishes Probable Cause Not Present

In District of Columbia v. Wesby, published January 22, 2018, the United States Supreme Court reversed a district court's decision on cross motions for summary judgment that the defendant police officers lacked probable cause to arrest multiple partygoers, and that the officers were not entitled to qualified immunity.  Responding to a neighbor's report that a party was taking place in a house the neighbor believed to be vacant, the police visited the location and spoke with neighbors who confirmed the house had been empty.  The officers knocked on the door and entered.  The house looked abandoned, with scant furniture and a filthy floor.  There was a strip club and other debauchery taking place.  The officers learned from the woman throwing the party that she did not have the owner's permission to use the house.  Both she and the partygoers gave evasive responses about the party and permission.  The officers arrested 21 partygoers for criminal tresspass.  The charges were dropped. 16 partygoers sued for arrest without probable cause in violation of the Fourth Amendment.  The district court and a divided court of appeals ruled that the officers did not have probable cause, because they did not have sufficient indication that the partygoers knowingly tresspassed; and that they were not entitled to qualified immunity.

The Supreme Court reversed.  The majority held that the officers had probable cause to arrest the partygoers.  The lower courts erred by looking at various factors on which the officers based probable cause in isolation, and rejecting each as a basis for probable cause.  The courts should have considered the totality of the circumstances--the partygoers' evasive answers, the activity at the party, the setting, and common-sense conclusions about human behavior-- in determining whether the officers made a reasonable inference that the partygoers were knowingly taking advantage of a vacant house as a venue for their party.

The Supreme Court also exercised its discretion to review the qualified immunity decision.  Officers are entitled to qualified immunity for a warrantless arrest unless a rule based on settled law--either controlling authority or a robust consensus of cases by persuasive authority-- resolves whether the circumstances with which the officer was confronted constituted probable cause.  Given the imprecise nature of probable cause, officers will often find it difficult to know how the general probable cause standard applies in the precise situation encountered.  A case therefore needs to be identified where an officer acting under similar circumstances was held to have violated the Fourth Amendment.  Unless the case is the rare "obvious case" where the unlawfulness of the officer's conduct is sufficiently clear absent precedent, a body of relevant case law is necessary to clearly establish whether probable cause was present.  Under these principles, the Supreme Court unanimously concluded that the officers were entitled to qualified immunity.  Even if they lacked probable cause, they were entitled to qualified immunity for reasonably but mistakenly concluding that qualified immunity was present.  No precedent found a Fourth Amendment violation under similar circumstances; and this was not an obvious case of violation.  Further, the fact that a case is unususal is an important indication that the officer's conduct did not violate a clearly established right.  A reasonable officer, looking at the entire legal landscape at the time of the arrests, could have interpreted the law as permitting these arrests.  The officers were therefore entitled to summary judgment based on qualified immunity.

Divided 9th Circuit Panel Holds That the Clearly-Established-Law Prong of Qualified Immunity Is Issue for Court, Not Jury

In Morales v. Fry, published October 16, 2017, a divided panel of the 9th Circuit Court of Appeals reversed in part and affirmed in part a judgment after jury trial in a 42 U.S.C. section 1983 suit against two police officers.  During a protest, Officer Rees put his hand on the plaintiff's shoulder to get her attention.  The plaintiff pulled her arm away abruptly and told the officer not to touch her.  Officer Rees lost sight of the plaintiff.  Later, the plaintiff turned Officer Fry's bicycle handlebar so that she could pass through a tight spot.  Officer Fry testified that she felt what she perceived to be a punch to her chest.  She believed the plaintiff had punched her. She yanked the plaintiff headlong over the bike, causing the plaintiff to fall on her back on top of other bikes.  Multiple officers converged on the plaintiff while she was down.  When the plaintiff started to stand up, Officer Rees, who had not been involved in the altercation, sprayed pepper spray into the plaintiff's eyes. The plaintiff was arrested and charged with the blow that Officer Fry perceived.  The charges were later dismissed. The plaintiff sued both officers. The district court denied summary judgment, based on factual disputes about what happened in the plaintiff's encounters with the officers.  At the close of evidence, the district court denied the officers' motion for a directed verdict.  The court's instructions to the jury included asking them whether the officers reasonably believed that their actions (Fry's arrest of the plaintiff and the officers' use of force) was lawful.  The jury found for the plaintiff on her excessive force claim against Officer Rees, but not on her excessive force and unlawful arrest claims against Officer Fry.  The plaintiff obtained nominal damages and attorney fees against Officer Rees.  Both sides appealed the judgment.

The majority decision reversed the judgment against the plaintiff concerning Officer Fry.  Rejecting previous 9th Circuit decisions as contrary to U.S. Supreme Court law, and following the majority of circuits, the majority concluded that the prong of qualified immunity that asks whether an officer violated clearly-established law is an issue for the court, not the jury, to decide.  By asking whether the officers reasonably believed they were violating the law, the court was asking the jury to decide whether the officers violated clearly-established law.  The error was not prejudicial, because the special verdict asked the jury whether the officer violated the plaintiff's constitutional rights regarding arrest and excessive force, and the jury answered, "no."  The verdict did not reveal whether the jury based its decision on the clearly-established prong of qualified immunity.  The district court should have the jury resolve the factual issues, and then decide as a matter of law whether the officers violated clearly established law.  The district court may either submit interrogatories to the jury, to ask them to resolve the factual issues, or use a general verdict and then resolve all factual disputes in favor of the prevailing party.  The error was harmless as to Officer Rees, and the district court properly denied his motion for JNOV.  The jury could have determined that he used pepper spray in retaliation, rather than as a reasonable use of force, and such a use would violate clearly-established law.

The dissenting judge opined that the jury instructions were proper, and that the plaintiff failed to preserve her claim that they were erroneous.

Claim That Search Warrants Were Obtained Through Judicial Deception Accrues when the Warrant Affidavit Becomes Reasonably Available

In Klein v. Beverly Hills, published August 4, 2017, the 9th Circuit Court of Appeals reversed in part and affirmed in part a summary judgment granted on a 42 U.S.C. section 1983 suit alleging that search warrants for the plaintiff's home and computer were obtained by false statements and omissions by the investigating detectives.  The plaintiff brought the suit three and a half years after the searches were executed.  In the meantime, the plaintiff made multiple attempts to obtain the sealed affidavits that the police submitted to the court to obtain the search warrants.  Eventually, after the lawsuit was filed, the affidavits were produced in discovery.  Soon after, the district court granted summary judgment on the ground that the two-year statute of limitations barred the action.

The 9th Circuit rejected the argument that the cause of action accrued when the searches under the warrants were executed.  Instead, the federal discovery standard of accrual applies.  Under that standard, the plaintiff's cause of action accrues when the plaintiff knows or has reason to know of his injury.  The standard requires the plaintiff to be diligent in discovering the critical facts of the case.  While ordinary 4th Amendment search and seizure claims accrue when the allegedly illegal search or seizure took place, judicial deception claims involve false or misleading representations that may not be obvious at the time of the allegedly illegal search.  The discovery rule therefore applies, and the cause of action does not accrue until the affidavit submitted to obtain the search warrant becomes reasonably available.  There was no dispute that the plaintiff here was diligent, so the discovery rule applied and his action was timely.

In a separate unpublished decision, the court affirmed summary judgment to the extent it was based on the merits of the plaintiff's claim.

 

District Court Erred in Resolving Issues of Fact in Moving Parties' Favor when Deciding Summary Judgment Motion in Wrongful-Arrest Case

In Reed v. Lieurance, published July 24, 2017, the 9th Circuit Court of Appeals reversed summary judgment, dismissal, and judgment as a matter of law in the defendants' favor in a case alleging wrongful arrest in violation of the 4th and 1st Amendments.  The plaintiff, a volunteer with an environmental group, was observing an interagency operation herding buffalo into Yellowstone National Park.  Two weeks before, evidence the group had gathered had been used as evidence in a federal environmental lawsuit concerning the herding efforts.  The plaintiff was in a vehicle parked on a highway adjacent to the park.  A Montana state agent told the plaintiff to move.  He moved the vehicle to another location.  A defendant sheriff's deputy cited the plaintiff for obstructing a peace officer, a misdemeanor.  The plaintiff and the deputy disagreed over whether the plaintiff had a right to park where he was.  The deputy told the plaintiff he would be arrested if he did not move farther away.  The plaintiff moved where instructed.  Other members of the public were allowed to observe the herding from fifty yards away.  There were multiple disputes of fact as to where the agent told the plaintiff to move, whether the plaintiff followed those instructions, and whether the plaintiff was in an area the buffalo might enter.  The plaintiff sued under 42 U.S.C. section 1983, alleging violation of his 4th and 1st Amendment rights.  The district court granted the defendants summary judgment on the plaintiff's unreasonable seizure claim, and sua sponte dismissed his failure-to-train claim.  After a jury trial, the district court granted judgment as a matter of law on the 1st Amendment claims.

The 9th Circuit ruled that the district court had erred in granting summary judgment on the 4th Amendment unreasonable seizure claims and the 1st Amendment claims.  In light of the multiple issues of fact on what occurred, and whether the plaintiff had the specific intent necessary to establish an interference offense, the district court could not rule that as a matter of law the officers had probable cause to arrest the plaintiff, or that the arrest did not unreasonably interfere with his 1st Amendment rights to observe the buffalo herding from a public place.  The district court also erred in dismissing the failure-to-train claim sua sponte without providing the plaintiff with proper notice of its grounds for doing so.

Police Officers Did Not Use Excessive Force in Letting Police Dog Off Leash When Responding to Nighttime Burglar Alarm in Commercial Building

In Lowry v. City of San Diego, published June 6, 2017, the 9th Circuit Court of Appeals, sitting en banc, affirmed summary judgment in favor of the defendant city in a 42 U.S.C. section 1983 suit alleging that the city's "bite and hold" policy for police dogs violated the plaintiff's 4th Amendment right to be free from excessive use of force.  The plaintiff fell asleep on the couch in her office, located in a two-story office building.  During the night, she used the restroom in a neighboring office suite, triggering the burglar alarm at approximately 10:40 p.m..  She returned to her couch and fell asleep again.  Three police officers and a police dog responded to the alarm.  Approaching, they did not see anyone leave the building  On the second story, they saw an open door.  Outside the door, the K-9 officer yelled a loud warning that he would send in a police dog; waited 60-90 seconds, and then released the dog into the suite.  The officers were concerned that a burglary might be in progress and the burglar lying in wait.  In the plaintiff's office, the k-9 officer shown his flashlight on plaintiff, under a blanket on the couch.  The dog leapt onto the couch and bit plaintiff on the lip.  The officer immediately called the dog off, and the dog responded.

The en banc panel determined that there were no material issues of fact.  The plaintiff's Monell claim against the city required the court to first determine whether the officers' use of force was excessive.  The court applied a three-step inquiry.  It first considered the type and amount of force.  The court determined that the risk of harm from the use of force was moderate, not severe.  The officer closely followed the dog, and called the dog off quickly after it encountered the plaintiff.  The second step was evaluating the city's interest in the use of force.  The court examined this under the totality of the circumstances, including the factors set forth in Graham v. Connori.  The first Graham factor, the severity of the suspected  crime, weighed in the city's factor because burglary carries and inherent risk of violence.  The second factor, whether the suspect posed an immediate threat to safety, weighed in favor of the city, because under the circumstances the officers could conclude that a burglar was hiding, might be armed, and was ignoring the officer's warnings.  The third factor, whether the victim was resisting or attempted to evade arrest, did not weigh substantially either way.  Other factors weighing in the city's favor were that the officers gave a warning, and the conceivable alternatives to letting the dog off the leash did not weigh against letting the dog off the leash (since holding onto the leash could increase the officer's exposure to danger).  The third step was balancing the gravity of the intrusion on the plaintiff's 4th Amendment rights against the city's need for the intrusion.  The officers' compelling need to protect themselves outweighed the non-severe force used.  The use of force therefore did not violate the plaintiff's 4th Amendment rights.  Because the plaintiff did not suffer constitutional injury, she could not establish that the "bite and hold" policy created city liability.

One judge dissented.

Despite Triable Issues of Material Fact on Whether Use of Deadly Force Reasonable, Officers Entitled to Qualified Immunity if Case Law Did Not Establish Unreasonableness Beyond Question

In S.B. v. County of San Diego, published May 12, 2017, the 9th Circuit Court of Appeals reversed a district court's denial of summary judgment based on qualified immunity.  Sheriff's deputies received a call that the decedent's family members were concerned about their safety because the decedent, who had mental issues, was intoxicated and acting aggressively.  The deputies entered the decedent's house with a gun and a taser drawn.  They encountered the decedent in his kitchen, his pockets full of knives.  After several orders, the decedent raised his hands and dropped to his knees.  The decedent then drew a knife quickly, and the defendant deputy fatally shot the decedent.  The three deputies involved gave inconsistent accounts of whether a deputy was trying to handcuff the decedent when the decedent drew the knife, and the distance between the decedent and the deputies when the knife was drawn.  The district court denied the defendant deputy's motion for summary judgment, on the ground that the different versions created triable issues of fact that defeated both the argument that the use of force was reasonable under the Fourth Amendment and California state law, and that the deputy was entitled to qualified immunity under federal law.  The deputy filed an interlocutory appeal.

The 9th Circuit agreed that the issues of fact prevented summary judgment on whether the use of force was reasonable under the Fourth Amendment.  Viewing the evidence in the light most favorable to the plaintiffs, a reasonable juror could find that the use of force was unreasonable, due to the decedent's distance from the deputies, that the shooting deputies could not see the other deputies' proximity to the decedent when he shot, that the deputies did not warn the decedent to drop the knife, and that the deputies could have used less-lethal force by tasing the decedent.  But the court then ruled that the issues of fact did not defeat qualified immunity.  The U.S. Supreme Court has repeatedly held that an officer is entitled to qualified immunity for a violation of the Fourth Amendment unless case law existing at the time of the violation established beyond question that the officer's actions violated the Fourth Amendment.  No case law at the time of the decedent's death established under the circumstances present that the deputy's use of lethal force would violate the Fourth Amendment.  The deputy was therefore entitled to summary judgment on the Fourth Amendment cause of action.  In a footnote, the court declined to address the cause of action for wrongful death under California law.  But it held that its conclusion that deadly force was not objectively reasonable as a matter of law supported the district court's denial of summary judgment on that claim.