Government Liability Update

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.

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.