Government Liability Update

Although Issues of Fact on Use of Force Defeat Summary Judgment on Qualified Immunity, Officer Entitled to Qualified Immunity on Issues Where Facts Are Not Genuinely Disputed

In Foster v. Hellawell, published November 20, 2018, a divided Ninth Circuit panel affirmed in part and reversed in part a district court order denying a police officer summary judgment based on qualified immunity.  A 911 call was received that a man had displayed a gun and was walking toward stores that had previously been robbed.  The defendant officer arrived at the scene and saw plaintiffs' decedent, who matched the description and was near one of the stores.  The officer identified himself and asked to see the decedent's hands.  The officer was unsure whether he had his gun drawn.  The decedent ran.  The officer gave chase.  During the pursuit, the officer fired at the decedent, fatally wounding him.  The survivors sued the officer under 42 U.S.C. § 1983 for violating the Fourth and Fourteenth Amendment. 

The Ninth Circuit majority affirmed denial of summary judgment on the claim of excessive force under the Fourth Amendment and the claim for denial of substantive due process under the Fourteenth Amendment.  The evidence created a genuine dispute of fact on whether the decedent had or displayed a gun while he ran. It is clearly established that shooting a fleeing suspect in the back violates the Fourth Amendment.  If the factual disputes on whether the suspect had a gun are resolved against the officer, the officer would not be entitled to qualified immunity.  The court ruled it lacked jurisdiction to adjudicate the question of whether the evidence was reliable enough to support the district court's conclusion that a genuine dispute existed.  On the question of whether the officer had reasonable suspicion to make an investigative stop of the decedent, however, the court found no genuine dispute of fact and that the officer was entitled to qualified immunity.  The 911 caller's information, as corroborated by the officer's observations, had sufficient indicia of reliability to support qualified immunity for the officer's conclusion of reasonable suspicion.  The court also found that the officer was entitled to qualified immunity for approaching the decedent with gun drawn (but not pointed at the suspect).  The law did not clearly establish that doing so constituted excessive force.

 A dissenting judge opined that, viewing the facts in the light most favorable to the plaintiffs, there was no evidence that the officer violated the Fourteenth Amendment by using force for a reason other than a legitimate police purpose.

Officer Violated Fourth Amendment by Entering Home under Ruse for Administrative Inspection, but Is Entitled to Qualified Immunity

In Whalen v. McMullen, published October 30, 2018, the 9th Circuit affirmed summary judgment in favor of a Washington State Patrol detective in a suit alleging the officer conducted a search of the plaintiff's house that violated the Fourth Amendment.  The plaintiff was receiving Social Security Disability benefits.  A task force that investigates potential social security fraud, investigated the plaintiff.  The task force designates investigations as either civil, criminal, or administrative.  As was common for administrative investigations, the defendant investigating detective did not obtain a search warrant, and used a ruse to communicate with the plaintiff:  the officer stated he was conducting a law enforcement investigation of identity theft.  The plaintiff spoke with the officer in front of her house, and then invited him inside.  The officer wore two hidden video cameras.  The officer spoke with the plaintiff for an hour, then left.  Based on the information the officer provided, the plaintiff's benefits were denied in part.  She was not subject to any civil or criminal action.  The plaintiff alleged that the portion of the detective's encounter with her inside her home violated the Fourth Amendment.  The district court granted the detective summary judgment based on qualified immunity.

The 9th Circuit ruled that the entry into the home, without a warrant, with hidden video cameras, and under cover of a ruse, violated the Fourth Amendment as an improper warrantless search.  It distinguished cases where, as a condition of receiving benefits, people had to allow warrantless entry into their homes, because in those cases the grounds for the entry are transparent.  Here, because the investigator identified himself as a law enforcement officer, the investigation was under a ruse and the plaintiff did not know about the video cameras, the investigator gained entry by invoking the individual's trust in her government, and then betraying it.  But because no precedent clearly established that the detective's actions would violate the Fourth Amendment, the detective was entitled to qualified immunity.

Detective Violated Clearly-Established Law by Failing to Reveal to Prosecutor That Police Officer Sister of Key Witness Believed Sister to Be Liar

In Mellen v. Winn, published August 17, 2018, the 9th Circuit Court of Appeals reversed summary judgment in favor of the defendant police detective.  When the detective was the lead investigator of a murder, a key witness told the detective that the plaintiff had confessed to involvement in the murder.  One of the detective's fellow police officers was a sister of the key witness.  There was evidence (which the detective disputed) that the officer told the detective her sister was the biggest liar she had ever met in her life, and that she never believed anything the sister said.  The detective did not inquire further into the basis for the officer's opinion about her sister.  The detective did not communicate these remarks to the prosecutor.  At the criminal trial, there was extensive evidence that the key witness was not credible.  The jury nevertheless convicted the plaintiff.  She was sentenced to life without possibility of parole.  She served almost two decades of her sentence until the officer's account of her sister's credibility came to light, and evidence was uncovered that exonerated the plaintiff.  She sued the detective for violating her constitutional right to due process by failing to comply with the detective's obligation under Brady v. Maryland, 373 U.S. 83 (1963), and Giglio v. United States, 405 U.S. 150 (1972) not to withhold impeachment evidence.  The district court granted the detective summary judgment based on qualified immunity.

The 9th Circuit held that, as a matter of law, the detective withheld material impeachment evidence under Brady and Giglio.  Since the key witness's testimony was the only evidence that linked the plaintiff to the murder, and the witness's testimony that the plaintiff confessed to the murder was so powerful, evidence that a police officer sibling considered the witness an untrustworthy liar was material.  Even though there was other evidence at the criminal trial putting the witness's credibility at issue, that did not relieve the detective of the duty to turn over all material impeachment evidence.  The appellate court found a triable issue of fact on whether the detective was deliberately indifferent to her duties under Brady/Giglio.  Her failure to investigate further, evidence the detective embellished the witness's written statement by adding details not described in the witness's written statement, and other actions demonstrating arguable overzealousness raised a jury issue on whether the detective was deliberately indifferent.  The 9th Circuit also held that the district court abused its discretion in excluding the opinion of the plaintiff's police practices expert that a reasonable officer would have believed the evidence relevant.  The evidence did not go to the legal conclusion of whether the detective acted reasonably; it went to the norms of police practice.

Officers Allegedly Violated Clearly-Established Law by Directing Trump Supporters to Walk Near Violent Protesters

In Hernandez v. City of San Jose, the 9th Circuit Court of Appeals, on interlocutory appeal, affirmed denial of a motion to dismiss based on qualified immunity.  The plaintiffs, who attended a rally for then-presidential candidate Donald Trump, alleged that police officers who knew that a mob around the rally had attacked Trump supporters previously that evening, yet shepherded the attendees into the group of protesters and actively prevented the attendees from exiting via a route that would not take them through the protesters.  They alleged that the officers were liable under 42 U.S.C. section 1983 for violating their due process rights, and that the city was liable because the police chief ratified the officers' acts by praising the officers afterward.

The appellate panel agreed that based on the allegations of the complaint, the officers were not entitled to dismissal based on qualified immunity.  The facts alleged adequately stated a case against the officers for violation of the attendees' due process rights based on the "state-created danger" doctrine, because if proven they would show the officers created a danger of harm from third parties to the protesters that would not have otherwise existed; and that they did so with deliberate indifference, because they knew of the potential danger from the protesters.  Further, the alleged acts violated clearly-established law.  9th Circuit case law established that the state-created danger applies to the crowd-control context, although that case found no constitutional violation under the facts of that case.  This was one of the rare situations where the violation was so obvious that a case directly on point was not necessary to clearly establish that the officers' actions would violate the plaintiffs' constitutional rights.  The panel also ruled that the appellate court had no jurisdiction to consider the city's interlocutory appeal, because the city's alleged liability in the case was not inextricably intertwined with the issue of whether the officers were entitled to qualified immunity.

Split Opinion: Justice Court's Decision on TRO Has Issue Preclusive Effect on Section 1983 Claim for Unreasonable Search

In Pike v. Hester, published June 6, 2018, a divided panel of the 9th Circuit Court of Appeals affirmed summary judgment in favor of the plaintiff in a 42 U.S.C. section 1983 lawsuit arising out of a dog search of the plaintiff's office.  The plaintiff, a county employee and football coach, had an acrimonious relationship with the defendant, a sheriff's sergeant.  The defendant allegedly received information that there was drug activity at the city recreation center where the plaintiff had an office.  The defendant pulled over the county director of public works--the plaintiff's boss--and asked the director if he would care if the defendant searched the center.  The director testified he responded that if the defendant needed to search the center, he should call the director and the director would let him in.  The defendant testified that the director gave him unconditional permission to enter the center.  The defendant, off-duty and in civilian clothes, then led a night-time search of the center.  As part of the search, the defendant unlocked the door to the plaintiff's office, entered with a k-9 officer and the officer's dog, and conducted a dog-sniff search of the office.  After further acrimony between the parties, the plaintiff sought a temporary restraining order in a Nevada justice court.  After a one-day trial, the court issued the TRO.  The court found that the defendant did not have lawful authority to search the plaintiff's office, and that it could not conclude on the record before it that the defendant had probable cause for the search.  The court stated it could not conclude the search was lawful under the Fourth Amendment.  The plaintiff then sued the defendant in federal court.  The district court granted the plaintiff summary judgment against the defendant.  The district court ruled that the TRO hearing's result had issue preclusive effect as to the lack of authority for the search, but not on violation of the Fourth Amendment.  The district court nevertheless ruled that the search violated the Fourth Amendment, and that the defendant was not entitled to qualified immunity.

The 9th Circuit majority affirmed, but on a different ground:  It concluded that the TRO ruling did have issue preclusive effect.  By ruling that the search was conducted without a warrant and without lawful authority, the justice court necessarily ruled that the search violated the Fourth Amendment.  The issue-preclusion standards under Nevada law were met.  The majority further ruled that the defendant was not entitled to qualified immunity.  At the time of the search, it was clearly established that government employees enjoyed a reasonable expectation of privacy in their offices, and that dog-sniff searches were subject to Fourth Amendment protection.

One judge dissented.  He opined that the decision should not have issue-preclusive effect, because the justice court hearing was conducted informally, the parties did not have the same incentive to litigate as in a suit for damages, the plaintiff expressly declined to argue the Fourth Amendment was violated in the hearing, and the plaintiff did not argue issue preclusion in the federal action.  Further, the Fourth Amendment issue turned on a disputed issue of fact:  The scope of permission the plaintiff's boss gave the defendant.

Police and University Officials Entitled to Qualified Immunity for Use of Force Against Students Refusing Orders to Disperse

In Felarca v. Birgeneau, published May 31, 2018, the 9th Circuit reversed denial of summary judgment, on qualified immunity grounds, to multiple police officers and university officials arising out of police use of force against student protesters who violated an order to take down an encampment on campus and disperse. 

Viewing the facts in the light most favorable to the plaintiffs, the 9th Circuit held that two officers who used baton jabs against protesters who formed a human chain and refused to move did not use excessive force under the Fourth Amendment.  The students were not seriously injured, the force used was minimal, and the defendants had a legitimate interest in using minimal force to maintain order and enforce the university's policy.  As to the university officials who allegedly planned the use of force and failed to stop it, the 9th Circuit concluded that the plaintiffs had failed to prove that the supervisors either personally engaged in unconstitutional conduct or were causally connected to the conduct.  Even for the officials within the police chain of command, the plaintiffs failed to link their injuries to individual police officers who were within that chain of commend.  As for the plaintiffs who received baton blows from officers that resulted in hospitalizations, the plaintiffs failed to show that the law was clearly established that use of baton blows under the circumstances (including the number of protesters, and the act of at least one plaintiff in provoking the officers) violated the Fourth Amendment.  

One judge, concurring in the result, disagreed that the use of force was reasonable under the Fourth Amendment, but agreed that the officers were entitled to qualified immunity under the clearly-established-law prong.

District Court Properly Granted Police Officer Summary Judgment based on Qualified Immunity on Court's Own Motion

In Easley v. City of Riverside, published May 18, 2018, a divided panel of the 9th Circuit Court of Appeals affirmed summary judgment granted to a police officer defendant in a 42 U.S.C. section 1983 excessive-force case.  The plaintiff was an occupant of a car that was driving erratically.  When a police car behind it turned on its lights and siren, the other car initially did not respond.  The car then stopped abruptly, and the plaintiff bolted from the car clutching his waistband.  The defendant and his partner exited their car.  The partner shouted, "Gun" or "He's got a gun."  The plaintiff continued to clutch his waistband with his right hand.  With his left, he pulled an object (later determined to be a gun) from his pocket and flung the item, in a manner similar to throwing a Frisbee, to his left.  Within two to four seconds of plaintiff throwing the gun, the defendant officer shot him three times.  The plaintiff survived.  During the litigation, the defendant officer pleaded the defense of qualified immunity in his answer.  The plaintiff agreed to dismiss some claims, and the defendant officer agreed not to seek summary judgment on the remaining claims.  But the district court judge sua sponte raised the issue of qualified immunity, and ordered an evidentiary hearing on the issue.  After hearing testimony, the judge determined there was no genuine issue of material fact for a jury to determine, and granted the defendant judgment as a matter of law based on qualified immunity.

The majority held that the district court judge had discretion to grant summary judgment on its own motion.  The defendant officer had pleaded the defense, and the agreement not to seek summary judgment was not a waiver of the defense.  The majority further agreed that under the facts viewed in the light most favorable to the plaintiff, the plaintiff's act in throwing the gun like a Frisbee (with his left arm lifting up), and the officer's use of deadly force within seconds afterward, would lead a reasonable officer to believe that the plaintiff was drawing a gun at him; and the use of deadly force did not violate clearly-established law.  The dissenting judge, a district court judge from Iowa sitting by assignment, opined that sua sponte summary judgment should not be granted, and that issues of fact prevented summary judgment based on qualified immunity. 

The Constitution Permits Officers to Seize Diseased, Dangerous, or Endangered Pets without a Warrant or Pre-Seizure Hearing

In Recchia v. Los Angeles Department of Animal Services, published May 1, 2018, the 9th Circuit Court of Appeals affirmed in part and reversed in part the summary judgment in favor of the defendant city and its defendant animal welfare officers in a lawsuit a homeless man brought challenging the seizure and destruction of his pet birds.  Animal welfare officers discovered that the plaintiff had multiple pigeons, a crow and a seagull in cages and cardboard boxes.  Many of the pigeons appeared in distress; others were healthy.  The officers planned to seize the diseased birds.  When the plaintiff allegedly failed to provide a plan for housing the healthy birds that would comply with city law, the officers seized those birds as well.  They gave the plaintiff a notice for a post-seizure hearing.  A veterinarian determined that all of the pigeons should be euthanized.  The plaintiff found out at the hearing that the birds had been destroyed.  The district court determined that the seizure without a warrant was proper under the Fourth Amendment, due to exigent circumstances; that the plaintiff had failed to show any policy that would render the city liable; and that the plaintiff had failed to show wrongful conduct under state law.

The 9th Circuit ruled that public officers have the right under the Fourth Amendment to seize diseased, dangerous, or endangered animals without first securing a warrant.  But it found an issue of fact on whether exigent circumstances permitted the officers to seize the healthy birds without a warrant, under the circumstances.  It remanded that issue, and also instructed the district court on remand to determine whether the officers were entitled to qualified immunity and whether any policy of the city contributed to the seizure of the healthy birds.  The court affirmed summary judgment on the plaintiff's Fourteenth Amendment due process claim that he was entitled to a pre-seizure hearing.  The officers seized the birds under the procedure set forth in Penal Code section 597.1, which permits officers to seize animals without pre-seizure process if the officers have reasonable ground to believe prompt action is necessary to protect the health or safety of the animal or others.  The issue was therefore whether the statute provided a procedure that met the requirements of due process.  Although pet owners' interests in pets are stronger than interests in inanimate objects, the government also has a strong interest in protecting animals and others.  The statute therefore provided sufficient due process by providing for a post-seizure hearing.  Finally, the officers were entitled to discretionary immunity under state law.  They exercised their discretion in determining the animals should be seized under the statute.

Deliberate Indifference Standard for Inadequate Medical Care to Pretrial Detainees Is Objective, Not Subjective

In Gordon v. County of Orange, published April 30, 2018, the 9th Circuit Court of Appeals reversed summary judgment granted to defendants in a 42 U.S.C. section 1983 lawsuit arising from the death of a pretrial detainee in county jail.  The decedent was arrested on heroin-related charges.  The intake nurse allegedly failed to use an assessment sheet for opiate withdrawal symptoms.  Various defendants allegedly failed to properly observe the decedent.  The district court granted the individual defendants summary judgment on the ground that a section 1983 claim for inadequate medical care required the plaintiff to prove the defendants were subjectively deliberately indifferent, and there was insufficient evidence of that.  It also granted the county summary judgment, finding no custom or practice that violated the constitution.

The 9th Circuit ruled that the district court applied the improper standard.  Previously, the 9th Circuit had used a subjective deliberate indifference standard for inadequate medical care claims both for prisoners held after trial (under the Eighth Amendment's cruel and unusual punishment standard) and before trial (under the Fourteenth Amendment's substantive due process standard).  But recent Supreme Court and 9th Circuit law suggested a different standard should apply to pretrial detainees.  The 9th Circuit therefore concluded that an objective deliberate indifference standard applies to pretrial detainees.  To prove a pretrial detainee claim for inadequate medical care, the plaintiff must prove (i) the defendant made an intentional decision with respect to the conditions under which the plaintiff was confined; (ii) those conditions put the plaintiff at substantial risk of suffering serious harm; (iii) the defendant did not take reasonable available measures to abate that risk, even though a reasonable official in the circumstances would have appreciated the high degree of risk involved—making the consequences of the defendant’s conduct obvious; and (iv) by not taking such measures, the defendant caused the plaintiff’s injuries.  Because the district court applied the incorrect standard, the summary judgment in favor of both the individual defendants and the county was reversed.

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.