MUNICIPAL TORT AND CIVIL RIGHTS LITIGATION UPDATE

Transcription

1 League of California Cities City Attorneys Department Spring Conference May 2010 MUNICIPAL TORT AND CIVIL RIGHTS LITIGATION UPDATE Eugene P. Gordon Office of City Attorney 1200 Third Avenue, Ste San Diego, CA Phone: (619) Fax: (619)

2 MUNICIPAL TORT AND CIVIL RIGHTS LITIGATION UPDATE TABLE OF CONTENTS PAGE 1. M.P. v. City of Sacramento, 177 Cal. App. 4th 121 (2009). A CITY IS NOT VICARIOUSLY LIABLE FOR A SEXUAL ASSAULT ALLEGEDLY COMMITTED AT A SOCIAL EVENT BY OFF-DUTY AND ON- DUTY FIREFIGHTERS County of Los Angeles v. Superior Court (West), 181 Cal. App. 4th 218 (2009). DISTRICT ATTORNEY INVESTIGATORS ARE IMMUNE FROM LIABILITY UNDER STATE LAW FOR ACTIONS TAKEN DURING AN INVESTIGATION Catsouras v. Department of California Highway Patrol, 181 Cal. App. 4th 856 (2010). HIGHWAY PATROL OFFICERS VIOLATED A DUTY OF CARE TO FAMILY MEMBERS OF TEENAGER DECAPITATED IN AN AUTOMOBILE ACCIDENT WHEN THEY ALLEGEDLY ED GRAPHIC PHOTOGRAPHS OF THE MUTILATED CORPSE TO FRIENDS AND FAMILY Stoot v. City of Everett, 582 F.3d 910 (9th Cir. 2009) (cert. denied). POLICE OFFICERS MAY NOT RELY SOLELY ON THE UNCORROBORATED, INCONSISTENT STATEMENTS OF A YOUNG CHILD TO ESTABLISH PROBABLE CAUSE TO MAKE AN ARREST McSherry v. City of Long Beach, 584 F.3d 1129 (2009). POLICE OFFICERS HAD PROBABLE CAUSE TO ARREST PLAINTIFF FOR KIDNAPPING AND SEXUAL ASSAULT BASED IN PART ON THE VICTIM S UNEXPECTED SELECTION OF PLAINTIFF AT A PHOTO LINEUP i

3 6. Greene v. Camreta, 588 F.3d 1011 (9th Cir. 2009). POLICE OFFICERS MUST HAVE A WARRANT, A COURT ORDER, EXIGENT CIRCUMSTANCES, OR PARENTAL CONSENT TO TAKE A SUSPECTED CHILD ABUSE VICTIM OUT OF A SCHOOL CLASSROOM TO INTERVIEW HER Burke v. County of Alameda, 586 F.3d 725 (9th Cir. 2009). POLICE OFFICERS MAY REMOVE A CHILD FROM THE CUSTODY OF ITS PARENT WITHOUT A WARRANT IF REASONABLE CAUSE EXISTS TO BELIEVE THE CHILD IS IN IMMINENT DANGER OF SERIOUS BODILY INJURY AND THE SCOPE OF THE INTRUSION IS NOT UNREASONABLE Elliott-Park v. Manglona, 592 F.3d 1003 (9th Cir. 2010). POLICE INVESTIGATIONS OR ARRESTS THAT ARE MADE IN A RACIALLY DISCRIMINATORY FASHION VIOLATE THE EQUAL PROTECTION CLAUSE OF THE FOURTEENTH AMENDMENT Bryan v. McPherson, 590 F.3d 767 (9th Cir. 2009). A POLICE OFFICER WAS NOT ENTITLED TO QUALIFIED IMMUNITY UNDER 1983 FOR USING A TASER ON A MAN WHO DID NOT POSE AN IMMEDIATE THREAT AND DID NOT ATTEMPT TO FLEE Mattos v. Agarano, 590 F.3d 1082 (9th Cir. 2010) (per curiam). THE USE OF A TASER IN A VOLATILE DOMESTIC DISTURBANCE SITUATION WAS NOT UNREASONABLE FORCE AS A MATTER OF LAW Brooks v. City of Seattle, 2010 WL (9th Cir. 2010). THE USE OF A TASER IN DRIVE-STUN MODE THREE TIMES ON A PREGNANT WOMAN TO GAIN COMPLIANCE AND CONTROL WAS NOT UNREASONABLE FORCE AS A MATTER OF LAW ii

4 12. Edgerly v. City and County of San Francisco, 2010 WL (9th Cir. 2010). A CUSTODIAL ARREST NOT AUTHORIZED BY STATE LAW MAY NEVERTHELESS BE VALID UNDER THE FOURTH AMENDMENT Lone Star Security & Video, Inc. v. City of Los Angeles, 584 F.3d 1232 (9th Cir. 2009). POLICE ACTIONS UNDERTAKEN PURSUANT TO A CITY ORDINANCE THAT WAS INVALID UNDER STATE LAW DID NOT VIOLATE THE DUE PROCESS PROVISIONS OF THE FOURTEENTH AMENDMENT Mahach-Watkins v. Depee, 593 F.3d 1054 (9th Cir. 2010). ATTORNEY S FEES MAY BE AWARDED TO PREVAILING PLAINTIFFS IN 1983 CASES EVEN IN CASES WHERE ONLY NOMINAL DAMAGES WERE OBTAINED K-9 UPDATE iii

5 A CITY IS NOT VICARIOUSLY LIABLE FOR A SEXUAL ASSAULT ALLEGEDLY COMMITTED AT A SOCIAL EVENT BY OFF-DUTY AND ON- DUTY FIREFIGHTERS 1. M.P. v. City of Sacramento, 177 Cal. App. 4th 121 (2009). FACTS AND PROCEDURAL BACKGROUND Plaintiff sued the City of Sacramento and two of its firefighters, Tom Mitchell and Scott Singleton, whom she accused of sexually assaulting her. Plaintiff s complaint alleged that Plaintiff was a 24-year-old woman working as a photographer at the Porn Star Costume Ball at a Sacramento hotel when she came across a crew of fire fighters who had driven their trucks to the event. A fire department captain allegedly allowed firefighters to attend the event and to drive a fire truck there to pick up women. Plaintiff recognized Singleton and, believing that she could trust the firefighters, she began to hang out with them. Some of the firefighters were drinking and many of them were on-duty, including Mitchell. As Plaintiff began photographing the firefighters, one of the firefighters invited her to take photographs of him and another firefighter on the fire truck. Singleton (who was off-duty), and Mitchell (who was on-duty), and Plaintiff got into the fire truck. Plaintiff found herself in a position between Mitchell and Singleton, who were blocking the doors. Plaintiff alleged that the two firefighters then committed various sex acts over Plaintiff s protests and that she managed to escape while Mitchell s attention was diverted by a person who approached the fire truck. The Complaint further alleged that the City and its fire department had policies permitting firefighters to take fire trucks and engine trucks to bars and parties, and with captains present, pick up on women and take women on their fire trucks. Plaintiff s Complaint for damages set forth six causes of action against the City, its fire department, and firefighters Mitchell and Singleton. The City moved for summary adjudication in its favor, contending, among other things, that as a matter of law, it was not vicariously liable for a sexual assault committed during a social event at a hotel by an off-duty firefighter who was not in uniform (Singleton), and that an alleged sexual assault committed at such an event by an on-duty firefighter (Mitchell) was outside the scope of employment, as a matter of law, and thus not conduct for which the employer is vicariously liable. The trial court granted the City s motion for summary adjudication on the ground the alleged sexual assault was not within the scope of the firefighters employment. COURT OF APPEAL DECISION The Court of Appeal upheld the decision of the trial court which held that the City was not vicariously liable for the harm resulting from the alleged sexual assault by the two firefighters. The appellate court concluded that the case of Mary M. v. 1

6 City of Los Angeles, 54 Cal. 3d 202 (1991), did not compel an extension of vicarious liability to the alleged facts in this case. In Mary M., the California Supreme Court held that a public entity that employs a police officer could be vicariously liable for a sex crime committed by the officer against a woman detained by the officer while on duty. The Court reasoned that a police officer s act of raping a woman whom he detained while on duty was not so divorced from his work that, as a matter of law, it was outside the scope of employment. (Mary M., 54 Cal. 3d at p. 214.) According to the Court, [t]he danger that an officer will commit a sexual assault while on duty arises from the considerable authority and control inherent in the responsibilities of an officer in enforcing the law. (Id. at p. 218.) [S]ociety has granted police officers extraordinary power and authority over its citizenry. An officer who detains an individual is acting as the official representative of the state, with all its coercive power. (Id. at p. 216.) Officers are given the authority to detain and to arrest and, when necessary, to use deadly force. Inherent in this formidable power, the Court believed, is the potential for abuse, and thus, according to the Court, it is appropriate to impose the principle of vicarious liability on the employer of police officers who rape women detained by the officers. (Id. at pp ) Here, the Court of Appeal concluded that the Mary M. decision itself, and subsequent decisions by the California Supreme Court, dictate that vicarious liability not be extended to the alleged assaults by the firefighters in this case. According to the court, it is questionable whether the Mary M. decision s application of vicarious liability still has the support of a majority of the California Supreme Court. Further, the Court in Mary M. stressed that the holding in that case flows from the unique authority vested in police officers. Employees who do not have this authority and who commit sexual assaults may be acting outside the scope of their employment as a matter of law. (Mary M., supra, 54 Cal. 3d at p. 218, fn.11.) In this case, the firefighters did not exercise any coercive authority over the victim. They did not purport to detain her for any firefighting investigation or even purport to be engaged in any duty of a firefighter; they simply invited Plaintiff to take photographs of them in the fire truck. Their alleged nonconsensual sexual assault was motivated for strictly personal reasons not related to their duties and performance as firefighters. Therefore, according to the court, vicarious liability did not apply to the alleged sexual misconduct of the City s firefighters in this case. 2

7 DISTRICT ATTORNEY INVESTIGATORS ARE IMMUNE FROM LIABILITY UNDER STATE LAW FOR ACTIONS TAKEN DURING AN INVESTIGATION 2. County of Los Angeles v. Superior Court (West), 181 Cal. App. 4th 218 (2009). FACTS AND PROCEDURAL BACKGROUND The Public Integrity Division of the Los Angeles District Attorney s Office commenced an investigation of allegations that Charles West, who was the Assistant Director of Real Estate for the County, was involved in criminal conduct. A senior investigator in the Real Estate Fraud Unit of the District Attorney s Office s Bureau of Investigation, gathered information about West s interactions with certain private developers. After reviewing documents and reports and interviewing individuals, the investigator concluded that she possessed probable cause to seek a search warrant. A magistrate issued a search warrant at the investigator s request and under her affidavit and statement of probable cause. The search warrant was served at West s house and office. Investigators seized various documents and several computer hard-drives, a laptop, and passports, among other things. At some point, the Public Integrity Division s Assistant Head Deputy District Attorney, concluded, upon review of the voluminous evidence and the applicable law, that there was insufficient admissible evidence to prove criminal charges beyond a reasonable doubt against West. She recommended that the case be closed, and as a consequence, no criminal charges were filed against West, his wife, or two related business interests. The Wests and their business interests sued the County for a violation of Civil Code section They alleged that they suffered injury arising from an unreasonable search and seizure of property without probable cause and for improper reasons, and the prolonged retention of and damage to that property, which conduct violated Plaintiffs civil rights. The trial court denied summary adjudication in favor of the County. The court concluded that while immunities protected the County from liability for the warrant, the search, and the seizure, the complaint alleged the destruction of property and retention of property after the search was conducted, for which the court found there was no immunity. The County filed a petition for writ of mandate in the Court of Appeal seeking an order directing the trial court to vacate its order denying the summary adjudication motion and instead enter an order granting it. COURT OF APPEAL DECISION The Court of Appeal granted the petition for writ of mandate and directed the trial court to vacate its orders. With respect to Plaintiffs claim that their civil rights protected under Civil Code section 52.1 were violated by the search and seizure of evidence and the alleged prolonged retention and damage of evidence seized, 3

8 the Court of Appeal held that the County and its employees were immune from liability. Section 52.1, commonly referred to as the Tom Bane Civil Rights Act, was enacted in 1987 as a part of a comprehensive legislative package to combat hate crimes. Jones v. Kmart Corp., 17 Cal. 4th 329, 338 (1998). It provides remedies for certain misconduct that interferes with any right secured by the Constitution or laws of the United States or of this state if the misconduct is accomplished by threats, intimidation, or coercion. The courts held that section 52.1 applied only to so-called hate crimes and required a showing that the defendants acted with discriminatory animus, i.e., an intent to threaten or coerce another in violation of their constitutional rights, based on the victim s actual or apparent racial, ethnic, religious, or sexual orientation or other minority status. (See, e.g., In re Michael M., 86 Cal. App. 4th 718 (2001)). In 2000, the Legislature amended section 52.1 by adding subdivision (g) to make it clear that section 52.1 applies to any affected plaintiff without regard to his or her membership in a protected class identified by its race, color, religion, or sex among other things. Therefore, it is clear today that in pursuing relief under section 52.1 for constitutional or statutory violations under federal or state law, plaintiffs need not allege that defendants acted with discriminatory animus or intent, so long as those acts were accomplished by the requisite threats, intimidation, or coercion. Venegas v. County of Los Angeles, 32 Cal. 4th 820, 843 (2004). Here, the Court of Appeal concluded that the immunity in Government Code section barred Plaintiffs section 52.1 claims. Section provides: A public employee is not liable for injury caused by his instituting or prosecuting any judicial or administrative proceeding within the scope of his employment, even if he acts maliciously and without probable cause. Section has been broadly construed by the courts and is not limited to the act of filing a criminal complaint. Acts performed during an investigation prior to the institution of a judicial proceeding are also protected by section because investigations are an essential step toward the institution of formal proceedings. Amylou R. v. County of Riverside, 28 Cal. App. 4th 1205, (1994). The immunity also applies even if the authorities later decide not to file charges. Gillan v. City of San Marino, 147 Cal. App. 4th 1033, 1048 (2007). Section also appears to extend to conduct that occurred after the close of the proceeding. Cappuccio, Inc. v. Harmon, 208 Cal. App.3d 1496 (1989). The Court of Appeal concluded that the investigators on the District Attorney s staff were immune under section because all of the acts--investigating, obtaining the warrant, searching, seizing, retaining, and even damaging Plaintiffs property--were triggered by allegations of criminal activity and were part of the investigation and prosecution process even after the decision was made not to file charges. Therefore, according to the court, section barred Plaintiffs claims brought under Civil Code section

9 HIGHWAY PATROL OFFICERS VIOLATED A DUTY OF CARE TO FAMILY MEMBERS OF TEENAGER DECAPITATED IN AN AUTOMOBILE ACCIDENT WHEN THEY ALLEGEDLY ED GRAPHIC PHOTOGRAPHS OF THE MUTILATED CORPSE TO FRIENDS AND FAMILY 3. Catsouras v. Department of California Highway Patrol, 181 Cal. App. 4th 856 (2010). FACTS AND PROCEDURAL BACKGROUND Plaintiffs, the father, mother, and sisters of decedent, an 18-year-old girl, filed a personal injury complaint against the CHP and two of its officers following the death of decedent. In that complaint, Plaintiffs alleged that decedent was decapitated in an automobile accident. CHP officers arrived at the scene, cordoned off the area where the accident occurred, and took control of decedent s remains. The CHP officers took multiple photographs of her decapitated corpse. The photographs were downloaded or otherwise transmitted to one or more CHP computers. Plaintiffs alleged that the two officers, without Plaintiffs consent, ed or otherwise transmitted graphic and horrific photographs of decedent s mutilated corpse to members of the public who were not involved in the official investigation of the accident. Plaintiffs alleged more specifically that the two officers had ed nine gruesome death images to their friends and family members on Halloween for pure shock value. Once received, the photographs were forwarded to others, and thus spread across the Internet like a malignant firestorm, popping up in thousands of Web sites. Plaintiffs asserted that they were subjected to malicious taunting by persons making use of the graphic and horrific photographs. Plaintiffs alleged that they suffered severe emotional and mental distress as a result of the acts of the two officers. Plaintiffs complaint asserted eight causes of action, including invasion of privacy, intentional infliction of emotional distress, negligence, and violation of The trial court, finding that the two officers owed no duty of care to the Plaintiffs, sustained the officers demurrers without leave to amend. It thereafter entered judgments of dismissal as to them and a judgment on the pleadings in favor of the CHP. With respect to the CHP, the only basis for liability against it was vicarious liability and since there were no remaining defendants upon which such liability could be based, the court held that it was entitled to judgment. Plaintiffs appealed. COURT OF APPEAL DECISION The Court of Appeal reversed the order of the trial court sustaining the demurrers of the two officers. The court held that Plaintiffs complaint stated causes of action for invasion of their own privacy, intentional infliction of emotional distress, and negligence. However, the court held that the two officers were entitled to qualified immunity with respect to the claim brought under

10 The Court of Appeal held that the complaint stated a cause of action against the two officers for the tort of invasion of privacy based on the public disclosure of private facts. The elements of such a claim are: (1) public disclosure; (2) of a private fact; (3) which would be offensive and objectionable to the reasonable person; and (4) which is not of legitimate concern. Shulman v. Group W Productions, Inc., 18 Cal. 4th 200, 214 (1998). Here, the Court of Appeal concluded, as have the courts in other jurisdictions that have addressed factual situations similar to the instant one, that family members have their own privacy rights in the death images of a decedent. According to the court, it is the right of privacy of the living which is recognized and sought to be enforced here. Accordingly, the court held that the allegations in the complaint that gruesome death images that were in the control of law enforcement officers were disseminated out of sheer morbidity or gossip, as opposed to any official law enforcement purpose or genuine public interest stated a cause of action for invasion of privacy. The Court of Appeal also held that Plaintiffs complaint stated a cause of action for intentional infliction of emotional distress. The elements of the tort of intentional infliction of emotional distress are: (1) extreme and outrageous conduct by the defendant with the intention of causing, or reckless disregard of the probability of causing emotional distress; (2) the plaintiff s suffering severe or extreme emotional distress; and (3) actual and proximate causation of the emotional distress by the defendant s outrageous conduct. Christensen v. Superior Court, 54 Cal. 3d 868, 903 (1991). Here, according to the court, the allegations in the complaint when liberally construed assert that the s sent by the two officers were sent with the intention of causing emotional distress to decedent s close family members. The alleged conduct of the officers was intentional and outrageous, Plaintiffs alleged that they suffered extreme emotional distress, and that such distress was proximately caused by the conduct of the officers. Therefore, the Court of Appeal concluded that the complaint stated a cause of action for intentional infliction of emotional distress. Further, the Court of Appeal held that the complaint stated a cause of action for negligence which supported emotional distress damages. Applying the factors enunciated in Rowland v. Christian, 69 Cal. 2d 108 (1968), the court concluded that the two officers owed Plaintiffs a duty of care not to place decedent s death images on the Internet for the purposes of vulgar spectacle. According to the court, it was foreseeable that the public dissemination, via the Internet, of photographs of the decapitated remains of a teenage girl would cause devastating trauma to the parents and siblings of that girl. The alleged acts were morally deficient, and a finding of liability would encourage the CHP to establish and enforce policies to preclude its officers from engaging in such acts again. Therefore, the officers owed plaintiffs a duty not to exploit CHP-acquired evidence in such a manner as to place them at foreseeable risk of grave emotional distress. 6

11 The Court of Appeal also explained that the question of whether the immunity provided by Government Code section for injuries caused by actions taken in furtherance of criminal investigations applied in this case could not be resolved at the demurrer stage. The court did question, however, how s of the nature alleged could have been sent in furtherance of the accident investigation. Finally, the Court of Appeal held that the two officers were entitled to qualified immunity under 1983, as Plaintiffs did not plead facts sufficient to allege that the actions of the officers violated any clearly established constitutional right. POLICE OFFICERS MAY NOT RELY SOLELY ON THE UNCORROBORATED, INCONSISTENT STATEMENTS OF A YOUNG CHILD TO ESTABLISH PROBABLE CAUSE TO MAKE AN ARREST 4. Stoot v. City of Everett, 582 F.3d 910 (9th Cir. 2009) (cert. denied). FACTS AND PROCEDURAL BACKGROUND The mother of a four-year-old girl reported to the police department that her daughter had been sexually abused by an acquaintance, Plaintiff, Paul Stoot II, when she was three. An officer responded to the call and briefly interviewed the mother. The mother stated that four days earlier, her daughter related to her certain acts of sexual abuse that had been performed on the girl by Plaintiff which had taken place on five occasions about eighteen months earlier when the child was living with Plaintiff s family. The case was assigned to a detective who had been a police officer for twentyfour years, including five years in a special unit that focused on cases of child sexual abuse. The detective interviewed the mother and then the daughter. The daughter s answers to some of the detective s questions were at times confused or contradictory; however, the detective nevertheless considered Plaintiff, fourteen years old, a suspect in the sexual abuse of the girl. The detective conducted an interview of Plaintiff on the campus of the middle school that he attended. Acting on the advice of two prosecutors, the detective did not contact Plaintiff s parents before the interview. When the detective arrived at the school, the vice principal pulled Plaintiff out of class and took him to the principal s office where the detective was waiting for him. The detective read Plaintiff his Miranda rights which Plaintiff waived in writing. The detective questioned Plaintiff about the girl s allegations for about two hours and after denying any wrongdoing at least 13 times, Plaintiff eventually admitted that he had molested the victim three times. However, Plaintiff later claimed that his confession was false, and was given in response to coercion and threats by the detective. After the interview, the detective sent Plaintiff back to class. The confession was then used to file charges of child molestation against Plaintiff in juvenile court. The state court subsequently dismissed the charges. The court concluded that considering Plaintiff s age, experience, background, and intelligence, Plaintiff lacked the capacity to understand his rights and could not 7

12 make an intelligent or knowing waiver of his rights. Therefore, the court held that the confession had been coerced and was thus inadmissible at trial. The state court also concluded that the four-year-old victim was incompetent to testify at trial. After the charges against Plaintiff were dismissed, Plaintiff brought a 1983 action against the detective and the City, asserting violation of Plaintiff s rights under the Fourth, Fifth, and Fourteenth Amendments. Specifically, Plaintiff alleged that (1) the detective seized him without probable cause in violation of the Fourth Amendment, as the victim s statements, standing alone, were unreliable; (2) the detective coerced a confession that was later used against Plaintiff in a criminal proceeding, in violation of the Fifth Amendment; and (3) the detective s interrogation techniques were so coercive as to violate substantive due process under the Fourteenth Amendment. The district court granted Defendants motion for summary judgment on all claims. Plaintiff timely appealed. NINTH CIRCUIT DECISION The Ninth Circuit concluded that Plaintiff was seized without probable cause, but that the detective was entitled to qualified immunity for his actions. The court determined that the Fifth Amendment claim could proceed, as, according to the court, the detective allegedly coerced incriminating statements that were later used against Plaintiff in a criminal proceeding. The court affirmed the order granting summary judgment in favor of Defendants on the Fourteenth Amendment claim as, according to the court, the detective s conduct did not rise to the level of a substantive due process violation. Finally, the court held that Plaintiff failed to provide evidence supporting municipal liability. I. FOURTH AMENDMENT SEIZURE With respect to the Fourth Amendment seizure issue, the Ninth Circuit agreed with Plaintiff that the victim s statements were not sufficiently reliable to establish probable cause to seize Plaintiff. The victim was four years old at the time of the interview, and she was reporting events that purportedly occurred when she was three. The victim changed her answers at several points during the interview, and at one point confused Plaintiff with another boy. According to the court, [t]hese three circumstances, considered together, point to the need for further investigation and corroboration to establish probable cause. Given the age of the victim at the time of the purported events and at the time she reported them, as well as the inconsistencies in her statements, the court held that the victim s statements, standing alone, were insufficient to establish probable cause to seize Plaintiff. However, according to the court, the detective was entitled to qualified immunity on the Fourth Amendment claim, as there were no court decisions that would have put the detective on notice that his decision to rely on the victim s statements, without any corroboration, was unlawful. 8

13 II. FIFTH AMENDMENT CLAIMS The Ninth Circuit held that the alleged coerced confession during the interrogation at Plaintiff s school violated Plaintiff s Fifth Amendment right against self-incrimination. The Supreme Court held in Chavez v. Martinez, 538 U.S. 760 (2003), that the Fifth Amendment is not violated unless and until allegedly coerced statements are used against the suspect in a criminal case. The Ninth Circuit explained that Chavez was inapplicable as there, plaintiff was never charged with any crime. Here, Plaintiff was charged with a crime, and his statements were used against him in (1) the Affidavit of Probable Cause filed in support of the Information charging him with child molestation; and (2) a pretrial arraignment and bail hearing. Thus, according to the Ninth Circuit, the prosecution s use of the allegedly coerced statements against Plaintiff in the manner that they were used was a sufficient basis for asserting a violation of Plaintiff s Fifth Amendment rights even though the statements were never used against Plaintiff in a criminal trial. The Ninth Circuit further held that the detective was not entitled to qualified immunity with respect to the Fifth Amendment claim. According to the court, at the time of the interrogation, the detective was on notice under clearly established law that if he failed to provide [Plaintiff] with appropriate Miranda warnings or physically or psychologically coerced a statement from [Plaintiff], the use of the confessions could ripen into a Fifth Amendment violation The fact that there was some uncertainty as to precisely what use in a criminal case would suffice for a Fifth Amendment violation did not matter, according to the court. Therefore, the detective was not entitled to qualified immunity. III. FOURTEENTH AMENDMENT CLAIMS The Ninth Circuit also concluded that the detective s interrogation techniques did not rise to the level of a violation of Plaintiff s Fourteenth Amendment substantive due process rights. The standard for establishing a Fourteenth Amendment substantive due process violation is quite demanding, and requires egregious abuse of power that shocks the conscience and violates the decencies of civilized society. County of Sacramento v. Lewis, 523 U.S. 833, 846 (1998). Here, according to the court, the detective s conduct fell below what is required to state a claim under the Fourteenth Amendment. Noticeably lacking, for example, is any allegation that [the detective] intended to injure Plaintiff in some way unjustifiable by any government interest, as required by case law. Therefore, the Ninth Circuit affirmed the district court s grant of summary judgment to Defendants on Plaintiff s Fourteenth Amendment claim. 9

14 POLICE OFFICERS HAD PROBABLE CAUSE TO ARREST PLAINTIFF FOR KIDNAPPING AND SEXUAL ASSAULT BASED IN PART ON THE VICTIM S UNEXPECTED SELECTION OF PLAINTIFF AT A PHOTO LINEUP 5. McSherry v. City of Long Beach, 584 F.3d 1129 (2009). FACTS AND PROCEDURAL BACKGROUND In 1988, a six-year-old girl was kidnapped from a playground. She was molested and raped by her kidnapper and then released. The abduction was witnessed by her four-year-old brother. Within ten hours of the kidnapping, patrol officers interviewed the victim. Initially, she described her kidnapper as a short, fat, white male with black hair, who was older than her grandfather. Her brother told police that the man who took her sister was red in color and had black hair. Both the victim and her brother said the suspect made her get into a green car. A neighbor reported that she had seen a white male, thirty-five years old or older, tall, heavy, with dark brown to black hair, a mustache, heavy black eyebrows, and a chubby pockmarked face, in the area on the day the victim was abducted. She said she saw an unattended dark green, larger 1970 s model pickup truck with a white cabover camper in the parking lot by the playground. Approximately a month after the abduction, Detective Norman Turley interviewed the victim and showed her a photo lineup that included a suspect named Larocco. The other photos in the lineup, including Plaintiff s, were simply fillers. Plaintiff s photo was on file because of his extensive criminal record involving several convictions for sexual assaults on young girls. Detective Turley believed Plaintiff was still in jail on a misdemeanor conviction at the time the instant crime under investigation was committed. Plaintiff was not a suspect. Unexpectedly, however, the victim picked Plaintiff s photo out of the lineup. Later, Detective Turley learned that Plaintiff had been released early from jail before this crime had occurred. Detective Turley also showed the victim pictures of sixteen different campers/trucks to try and determine in what kind of vehicle she had been kidnapped, but she said the vehicle was a car, not a truck. The victim seemed confused but could communicate. Two days later, Detective Turley reinterviewed the victim. He showed her the same photo lineup as he had shown her two days earlier, but, out of fairness, in a different order. The victim again picked Plaintiff. The detective also showed her photographs of nine cars, but she seemed confused. She picked out a couple of cars, but after the detective changed the order of the photographs, she picked out Plaintiff s father s yellow station wagon. Detective Turley interviewed the victim s brother. The brother was shown a photo lineup of nine vehicles, and he picked out the same car his sister had chosen. He then identified Plaintiff from a photo lineup. 10

15 Plaintiff was arrested about two months after the abduction. The day after Plaintiff was arrested, the neighbor who had previously provided a description of a man and a vehicle at the playground picked Plaintiff s photo out of a lineup. Two months later, at a court-ordered physical lineup, the victim picked out Plaintiff as the one who abducted her, but her brother picked out someone else. The victim positively identified Plaintiff during a preliminary hearing and later at trial. Plaintiff was convicted and served fourteen years in prison for kidnapping, raping, and molesting the six-year-old girl. He was exonerated by DNA evidence acquired from another person who also confessed to the crimes. Plaintiff was released from prison pursuant to a writ of habeas corpus issued by the Superior Court. Plaintiff then filed a 1983 action against the City, the police department, and the two officers he claimed were responsible for the faulty conviction. The complaint alleged essentially Fourteenth Amendment violations for unconstitutional interview procedures, and Fourth Amendment false arrest claims based on false witness identifications. The district court granted summary judgment to Defendants on the ground of qualified immunity. Plaintiff filed a timely appeal. NINTH CIRCUIT DECISION The Ninth Circuit affirmed the district court s grant of summary judgment in favor of Defendants. The Ninth Circuit held that probable cause existed for the arrest of Plaintiff and his detention for trial. Before Plaintiff was arrested, the victim on two occasions positively identified Plaintiff as her attacker, and also identified his father s car as the vehicle used to facilitate the crime. Scientific evidence reported by the Sheriff s Crime Laboratory indicated that semen found on the victim s underwear could belong to Plaintiff in that he could not be excluded as the person whose semen was found. Although Plaintiff did not closely resemble the initial descriptions given by the two children, the court noted that there was nothing in the record which showed that the officers acted in bad faith by relying on the children s photo lineup identification of Plaintiff rather than their initial descriptions. According to the court, police officers must be given some latitude in determining when to credit witnesses denials and when to discount them, and we are not aware of any federal law... that indicates precisely where the line must be drawn. Devereaux v. Abbey, 263 F.3d 1070, 1075 (9th Cir. 2001) (en banc). Accordingly, the court concluded that there was probable cause to justify Plaintiff s arrest and prosecution. With respect to Plaintiff s Fourteenth Amendment substantive due process claims, Plaintiff contended that allegedly improper conduct by the officers materially influenced the prosecutor s decision to file charges against him and to pursue a conviction. Plaintiff relied in large measure on a discrepancy between 11

16 the victim s initial description of her attacker and Plaintiff, and allegedly flawed identification procedures in support of his argument that the prosecutor s socalled independent investigation was tainted by the officers fabricated evidence and unconstitutionally suggestive interview procedures and techniques. However, the Ninth Circuit concluded that the evidence presented before the district court was insufficient to sustain a finding that the prosecutor s investigation and decision making was not independent and was tainted by the alleged fabrication of evidence. According to the court, this is not a case where the prosecutors relied only on police reports in making their decision to file charges. See Borunda v. Richmond, 885 F.2d 1384, 1390 (9th Cir. 1988); Barlow v. Ground, 943 F.2d 1132, (9th Cir. 1991). Rather, here, the evidence established that the prosecutor s actions in authorizing all charges against Plaintiff were the result of the prosecutor s independent professional judgment based upon a thorough review of the evidence, including eyewitness identification uninfluenced by either detective. Since probable cause existed for Plaintiff s arrest and since the prosecutor exercised his independent judgment in pursuing a prosecution against Plaintiff, the Ninth Circuit held that the district court properly granted summary judgment to the Defendants on both the Fourth and Fourteenth Amendment claims. POLICE OFFICERS MUST HAVE A WARRANT, A COURT ORDER, EXIGENT CIRCUMSTANCES, OR PARENTAL CONSENT TO TAKE A SUSPECTED CHILD ABUSE VICTIM OUT OF A SCHOOL CLASSROOM TO INTERVIEW HER 6. Greene v. Camreta, 588 F.3d 1011 (9th Cir. 2009). FACTS AND PROCEDURAL BACKGROUND Nimrod Greene was arrested for suspected child abuse of F.S., a seven-year-old boy. Nimrod s arrest was based on statements made by F.S. to his parents that Nimrod had touched F.S. s penis over his jeans when Nimrod was drunk in F.S. s parents home. In addition, F.S. s mother told officers that Sarah, Nimrod s wife, had talked to her about not liking the way Nimrod made their two young daughters, S.G. and K.G., sleep in his bed when he was intoxicated and didn t like the way he acted when they sat on his lap. The Oregon Department of Human Services learned of the allegations about a week after Nimrod s arrest. The next day, a caseworker with the Department, having learned that Nimrod had been released and was having unsupervised contact with his daughters, became concerned about the safety and well-being of Nimrod s small children. Three days after hearing of Nimrod s release, the caseworker and a deputy sheriff visited S.G. s elementary school to interview S.G. Sarah, S.G. s mother, was not informed of, nor did she consent to, the interview of her daughter. The caseworker did not obtain a warrant or other court order before the interview. A school counselor removed S.G. from her classroom and took her to a private 12

17 office where the caseworker and officer were waiting and left. The officer was in uniform and carried a visible firearm. The caseworker conducted a two-hour unrecorded interview of S.G. in the officer s presence. According to S.G., she initially told the caseworker that her father had never touched her inappropriately, but later in the interview, due to being scared, she changed her answers. According to the caseworker, S.G. stated that her father had touched her private parts in an inappropriate manner for a considerable period of time. The officer did not ask any questions during the interview. Based on the interview and other information he had gathered, the caseworker believed that Nimrod had sexually abused S.G. Nimrod was indicted on six counts of felony assault of F.S. and S.G. He was shortly released but ordered not to have any contact with his daughters. The caseworker believed that the Department of Human Services would not be able to ensure the safety of S.G. and K.G. and for that reason obtained an order removing both children from their home. The children were examined, but it could not be determined whether they had been sexually abused. The court ordered the children returned to their mother s custody three weeks after they had been removed. Sarah Greene filed a 1983 action on behalf of herself, S.G., and K.G., alleging that the caseworker s and deputy sheriff s in-school warrantless, nonconsensual seizure of S.G. violated the Fourth Amendment. The complaint alleged additional causes of action against the caseworker relating only to the removal of the children from Sarah s care. With respect to the claim against the caseworker and deputy sheriff relating to the in-school interrogation, the district court held that S.G. had been seized when she was taken from her classroom and interviewed, but that the seizure was objectively reasonable under the facts and circumstances of this case. Moreover, the court held that even if the Greenes constitutional rights had been violated, the caseworker and deputy sheriff were entitled to qualified immunity because no reasonable officer would have believed their actions violated the Fourth Amendment. The Greenes timely appealed. NINTH CIRCUIT DECISION The Ninth Circuit held that the warrantless in-school seizure and interrogation of S.G., a suspected child abuse victim, violated S.G. s Fourth Amendment rights. However, the court concluded that the caseworker and deputy sheriff were entitled to qualified immunity and thus were not liable in damages. The Ninth Circuit held and the Defendants did not contest that the two-hour interview of S.G. at her school was a seizure for Fourth Amendment purposes. However, the caseworker and the officer argued that traditional Fourth Amendment protections do not apply to child abuse investigations at all, as the government has a special need to protect children from sexual abuse which 13

18 justifies a departure from both the warrant and probable cause requirements. In a special needs case, the threshold inquiry is whether the government has identified some need, beyond the normal need for law enforcement, to justify a departure from traditional Fourth Amendment standards. Nat l Treasury Employees Union v. Von Raab, 489 U.S. 656, (1989). Here, according to the court, the purpose of the interview of S.G. was to gather evidence for use in subsequent criminal proceedings. The law enforcement purpose of the investigation was evident as the police were actively investigating allegations of child sexual abuse against S.G. s father, and a police officer was present at S.G. s interview. Under those circumstances, the court believed that law enforcement personnel and purposes were too deeply involved in the seizure of S.G. to justify applying the special needs doctrine. The Ninth Circuit held that the general law of search warrants applies to child abuse investigations. Once the police have initiated a criminal investigation into alleged abuse in the home, government officials must provide procedural protections appropriate in the criminal context where there is direct involvement of law enforcement in an in-school seizure and interrogation of a suspected child abuse victim. Therefore, the court concluded that the decision to seize and interrogate S.G. in the absence of a warrant, a court order, exigent circumstances, or parental consent violated S.G.s right to be free from an unconstitutional seizure. However, the court further held that the doctrine of qualified immunity protected the caseworker and deputy sheriff from liability for civil damages, as their actions of seizing and interrogating S.G. without a warrant at her school did not violate clearly established constitutional rights of which a reasonable person would have known at the time of the incident. According to the court, there was no Ninth Circuit precedent which would have put the officer and caseworker on notice that traditional Fourth Amendment protections, rather than the lesser special needs reasonableness standards, were applicable under the circumstances of this case. POLICE OFFICERS MAY REMOVE A CHILD FROM THE CUSTODY OF ITS PARENT WITHOUT A WARRANT IF REASONABLE CAUSE EXISTS TO BELIEVE THE CHILD IS IN IMMINENT DANGER OF SERIOUS BODILY INJURY AND THE SCOPE OF THE INTRUSION IS NOT UNREASONABLE 7. Burke v. County of Alameda, 586 F.3d 725 (9th Cir. 2009). FACTS AND PROCEDURAL BACKGROUND B.F. is the fourteen-year-old daughter of Plaintiffs Melissa Burke and Clifton Farina. Melissa and Farina are divorced and David Burke is B.F. s stepfather. 14

19 B.F. lived with the Burkes, but Farina, who shared joint legal custody of B.F. with Melissa, regularly called B.F. and saw her frequently. B.F. ran away from home with a nineteen-year-old male, and the Burkes immediately reported her as a runaway to the Sheriff s Office. At some point during the ensuing investigation, the investigating officers heard something about Mr. Burke having sexually molested B.F. B.F. returned home of her own volition approximately two weeks later. One week after she returned, a police officer, Mark Foster, met with B.F. to schedule an interview with B.F. to discuss the circumstances surrounding the runaway. B.F. was interviewed by a female officer and Officer Foster viewed the interview by monitor in another room. B.F. stated that she left home because her stepfather, David Burke, was unduly strict. She said that when she returned home, her stepfather immediately questioned her about the person with whom she ran away, and that when she refused to disclose any information, David Burke struck her fifteen times on the face with an open hand. After Melissa arrived, David again struck B.F. on the face and thighs. Melissa asked David to stop, but later commented that B.F. deserved the beating. The slaps left red marks. B.F. further reported to the officer that David told her not to tell the police about the blows because it would cause problems. He also told her that if she did not disclose to the officers the address of the person with whom she ran away, he was going to beat [her] ass. B.F. stated that since the day of her return, David had not struck her. Although she felt safe, she repeatedly expressed anxiety about whether her family would know what was discussed in the interview. She felt that her parents would view her report as an attempt to blame them for her runaway and that they might make things worse for her when she arrived home. B.F. went on to report that David made inappropriate comments to her regarding her sexual partners and breasts. She further stated that David pinched her on the buttocks on several occasions and repeatedly grabbed her beasts when he hugged her. The touching occurred every couple of days. B.F. told her mother about the inappropriate conduct, and although her mother told David to stop, the touching continued. When asked about Farina, her biological father, B.F. stated that he did not abuse her. Both David and Melissa asked Officer Foster to bring B.F. home, but Foster refused to stop the interview. Melissa then drove to the police station to bring B.F. who was diabetic a shot of insulin. Upon Melissa s arrival, Officer Foster asked her to speak with him, and she agreed. During the interview, Melissa confirmed the beating and acknowledged that David engaged in inappropriate behavior with B.F. s breasts. 15

20 Following the interviews, Officer Foster immediately advised the Burkes that he was removing B.F. from their home and placing B.F. in protective custody. He did not seek a protective custody warrant before doing so. He also did not discuss with Melissa alternatives to removal nor did he contact Farina or suggest taking B.F. to Farina s house. Farina found out about the removal two days later. David, Melissa, and Farina filed suit against Officer Foster and the County in federal district court under 1983, claiming, inter alia, that the removal of B.F. without a protective custody warrant interfered with their right under the Fourteenth Amendment of familial association. They also included a claim against the County for failure to train its officers on the need to procure protective custody warrants. The parties filed cross-motions for summary judgment. The court granted summary judgment to the Defendants and denied Plaintiffs motion. Plaintiffs filed a timely appeal. NINTH CIRCUIT DECISION The Ninth Circuit affirmed the district court order granting summary judgment in favor of Officer Foster, but vacated the judgment as to the County. Parents and children have a well-elaborated constitutional right to live together without governmental interference. Wallis v. Spencer, 202 F.3d 1126, 1136 (9th Cir. 2000). That right is an essential liberty interest protected by the Fourteenth Amendment guarantee that parents and children will not be separated by the state without due process of law except in an emergency. Id. Accordingly, [o]fficials may remove a child from the custody of its parent without prior judicial authorization only if the information they possess at the time of the seizure is such as provides reasonable cause to believe that the child is in imminent danger of serious bodily injury and that the scope of the intrusion is reasonably necessary to avert that specific injury. Id. at Here, according to the Ninth Circuit, under the totality of the circumstances, it was reasonable for Officer Foster to remove B.F. from David and Melissa Burke, as the officer reasonably believed based on B.F. s statements that she faced imminent harm posed by David in light of the sexual abuse and threat of physical harm. Even though Melissa did not present a threat to B.F., under the circumstances, it was reasonable to believe that the mother was not protecting her child, therefore, removing B.F. from Melissa, who lived with David, was not unreasonable. With respect to the intrusion on Farina s right of familial association, in a case of first impression, the Ninth Circuit extended its holding in Wallis to parents with legal custody, regardless of whether they also possess physical custody of their children. Here, Farina was never personally accused of violence and the officers made no attempt to contact him. The officers did not explore the possibility of putting B.F. in his care rather than placing her in government custody. Accordingly, the court concluded that whether Officer Foster s failure to contact Farina violated Farina s constitutional right of familial association was for the jury to decide. 16