MUNICIPAL TORT AND CIVIL RIGHTS LITIGATION UPDATE

Transcription

1 League of California Cities City Attorneys Department Spring Conference May 2005 MUNICIPAL TORT AND CIVIL RIGHTS LITIGATION UPDATE Eugene P. Gordon Assistant City Attorney Office of City Attorney 1200 Third Avenue, Ste San Diego, CA Phone -- (619) Fax -- (619)

2 POLICE OFFICERS ARE ENTITLED TO QUALIFIED IMMUNITY UNDER SECTION 1983, UNLESS IT WOULD BE CLEAR TO A REASONABLE OFFICER THAT THE POLICE ACTIONS WERE UNLAWFUL IN THE SITUATION CONFRONTING THE OFFICERS 1. Brosseau v. Haugen, 125 S. Ct. 596 (2004). FACTUAL BACKGROUND In this case, police officer Rochelle Brosseau took a report of a burglary where the victim claimed that Plaintiff, a former crime partner of his, had stolen tools from his shop. The officer later learned that there was a felony no-bail warrant out for Plaintiff s arrest on drug and other charges. The next morning, Officer Brosseau responded to a report of a fight in progress at the home of Plaintiff s mother. When the officer arrived, she saw that the burglary victim and a friend were in the process of forcing Plaintiff into a pickup. The burglary victim had accosted Plaintiff and had begun to beat up Plaintiff, when Plaintiff agreed to return the tools. The burglary victim and his friend were forcibly leading Plaintiff into the pickup and planned to drive to a storage facility where Plaintiff had stored the stolen tools when the officer arrived. The officer s arrival created a distraction, which provided Plaintiff the opportunity to get away. Plaintiff ran through his mother s yard and hid in the neighborhood. The officer requested assistance, and, shortly thereafter, two officers arrived with a K-9 to help track down Plaintiff. During the search, which lasted about 30 to 45 minutes, officers instructed the burglary victim and his friend to remain in the pickup which was parked in front of the driveway. The officers instructed Plaintiff s girlfriend and her 3-year-old daughter, who were also present to remain in their Honda which was parked in the driveway. Plaintiff s Jeep was also parked in the driveway facing the street and the Honda, which was angled somewhat to the left. The Jeep was parked about 4 feet away from the Honda, and 20 to 30 feet away from the pickup. Eventually, a neighbor reported that she had seen a man in her backyard. Officers surrounded the house, and Officer Brosseau saw Plaintiff run past the front of his mother s house and turn to run into the driveway. With the officer still in pursuit, Plaintiff jumped into the driver s side of his Jeep, and closed and locked the door. Officer Brosseau believed that Plaintiff was running to the Jeep to retrieve a weapon. Officer Brosseau arrived at the Jeep, pointed her gun at Plaintiff, and ordered him to get out of the vehicle. Plaintiff ignored the command and continued to look for the keys. The officer repeated her commands and hit the driver s side window several times with her handgun, which failed to deter Plaintiff. On the third or fourth try, the window shattered. Officer Brosseau unsuccessfully attempted to grab the keys and struck Plaintiff on the head with the barrel and butt of her gun. Plaintiff, still undeterred, succeeded in starting the Jeep. As 1

3 the Jeep started, or shortly after it began to move, Officer Brosseau jumped back and to the left. She fired one shot through the rear side window on the driver s side, hitting Plaintiff in the back. Officer Brosseau later explained that she shot Plaintiff because she feared for the safety of other officers on foot who were believed to be in the area, the persons in the vehicles that were in Plaintiff s path, and other citizens who might be in the area. Despite being hit, Plaintiff managed to drive out of the driveway, across a neighbor s lawn, and onto the street. After about a half block, Plaintiff had difficulty breathing and brought the Jeep to a halt. He suffered a collapsed lung and was airlifted to a hospital. Plaintiff survived the shooting and subsequently pleaded guilty to the felony offense of eluding. PROCEDURAL BACKGROUND Plaintiff brought a 1983 action against Officer Brosseau alleging that the shooting constituted excessive force in violation of the Fourth Amendment. The district court granted summary judgment to the officer after finding that she was entitled to qualified immunity. The Ninth Circuit reversed the summary judgment. The Ninth Circuit found that Officer Brosseau had violated Plaintiff s Fourth Amendment right to be free from excessive force and that the right was clearly established. Thus, Officer Brosseau was not entitled to qualified immunity. Officer Brosseau petitioned for a writ of certiorari, requesting that the U.S. Supreme Court review both of the determinations made by the Ninth Circuit. The Supreme Court granted the petition on the issue of qualified immunity only. U.S. SUPREME COURT HOLDING The Supreme Court, in a per curiam opinion, without giving the parties an opportunity to provide full briefing and oral argument, reversed the judgment of the Ninth Circuit, and held that Officer Brosseau was entitled to qualified immunity for her actions. The Court emphasized that the qualified immunity inquiry must be undertaken in light of the specific context of the case, not as a broad general proposition. As a general proposition, the use of force that is excessive under objective standards of reasonableness is contrary to the Fourth Amendment. However, according to the Court, that is not enough to put a reasonable officer on notice that her conduct is unlawful. A right that an officer is alleged to have violated must have been clearly established in a more particularized, and hence more relevant, sense. Thus, according to the Court: [t]he relevant, dispositive inquiry in determining whether a right is clearly established is whether it would be clear to a reasonable officer that his conduct was unlawful in the situation he confronted. Here, according to the Court, at the time of Officer Brosseau s actions, the law was not clearly established in a particularized sense that she violated Plaintiff s Fourth Amendment rights when she shot Plaintiff, a felon who was 2

4 avoiding apprehension through vehicular flight and who posed a risk to persons in the immediate area. The handful of cases relevant to the situation that Officer Brosseau confronted did not, according to the Court, clearly establish that shooting Plaintiff under the circumstances violated the Fourth Amendment. Therefore, because the Court concluded that the officer s actions fell within the hazy border between excessive and acceptable force, Officer Brosseau was entitled to qualified immunity for her actions. A WARRANTLESS ARREST IS LAWFUL UNDER THE FOURTH AMENDMENT IF, GIVEN THE FACTS KNOWN TO THE OFFICER, THERE IS PROBABLE CAUSE TO BELIEVE A CRIME HAS BEEN COMMITTED 2. Devenpeck v. Alford, 125 S. Ct. 588 (2004). FACTUAL BACKGROUND In this case, a disabled automobile and its passengers were stranded on the shoulder of a state highway in an area that was dark and deserted. Plaintiff pulled his car off the road behind the disabled vehicle, and activated his wigwag headlights (which flash the left and right headlights alternately). As he pulled off the road, a state trooper passed the disabled car from the opposite direction. He turned around to check on the motorists at the first opportunity, but when he arrived, Plaintiff, who had begun to help the motorists change a flat tire, hurried back to his car and drove away. The stranded motorists asked the trooper if Plaintiff was a cop, and they informed the officer that Plaintiff s statements, and his flashing, wig-wag headlights had given them that impression. They also informed the trooper that Plaintiff had left his flashlight behind as he hurried off. On the basis of that information, the trooper radioed his sergeant and advised that he was concerned Plaintiff was an impersonator or wannabe cop. The trooper pursued Plaintiff s vehicle and pulled it over. The trooper observed through the passenger-side window that Plaintiff was listening to the Sheriff s Office police frequency on a special radio, and that handcuffs and a handheld scanner were in the car. Those facts bolstered the trooper s suspicion that Plaintiff was impersonating a police officer. The trooper also believed that Plaintiff was untruthful and evasive. Plaintiff claimed that his flashing headlights were part of a recently installed car alarm system, and pretended that he was unable to trigger the alarm. However, during those feigned efforts, the trooper noticed that Plaintiff avoided pushing a button near his knee, which the trooper suspected (correctly) to be the switch for the lights. The sergeant arrived on the scene a short while later. After the trooper informed the sergeant of the basis for his belief that Plaintiff had been impersonating a police officer, the sergeant approached Plaintiff s vehicle and 3

5 inquired about the wig-wag headlights. In the course of his questioning, the sergeant noticed a tape recorder on the passenger seat of Plaintiff s car with the play and record buttons depressed. The sergeant played the recorded tape, and found that Plaintiff had been recording his conversations with the officers. The sergeant informed Plaintiff that he was under arrest for a violation of the State of Washington Privacy Act which makes it unlawful to secretly taperecord conversations. Plaintiff offered to show the officers a copy of a state court of appeals opinion in his glove compartment which held that the Privacy Act did not apply to police officers performing official duties, but the officers declined to look at the opinion. Believing that the text of the Privacy Act confirmed that Plaintiff s recording was unlawful; the officers booked Plaintiff into jail for violating the Act. A state court judge later dismissed the charge, as tape recording police officers during the performance of their official duties is not illegal under the Washington Privacy Act. PROCEDURAL BACKGROUND Plaintiff filed a 1983 action in U.S. District Court against the two officers alleging that his arrest and incarceration violated his Fourth Amendment right to be free from an unreasonable seizure, and under state law for unlawful arrest and imprisonment. Both claims rested upon the allegation that the officers arrested him without probable cause. The district court denied the officers motion for summary judgment based on qualified immunity, and the case proceeded to trial. Even though the jury was instructed that Plaintiff s tape recording of the officers was clearly not a crime under Washington law, the jury returned a verdict in favor of the officers. The district court denied Plaintiff s motion for judgment as a matter of law or, in the alternative, a new trial. The Ninth Circuit reversed the order of the district court, finding no evidence to support the jury s verdict. The court concluded that the officers could not have had probable cause to arrest because they cited only the Privacy Act charge which did not prohibit the tape recording of officers conducting a traffic stop. The Ninth Circuit rejected the officers contention that the arrest was lawful because probable cause existed to arrest Plaintiff for the offenses of impersonating a law enforcement officer and obstructing a law enforcement officer. According to the court, since the impersonation and obstruction offenses were not closely related to, and based on the same conduct as, the tape-recording charge for which Plaintiff was taken into custody, they may not be considered in determining whether the arrest was supported by probable cause. The court also held that the officers were not entitled to qualified immunity, as no reasonable officer could have believed that arresting Plaintiff for taping the traffic stop was lawful. 4

6 U.S. SUPREME COURT HOLDING The Supreme Court unanimously reversed the judgment of the Ninth Circuit. The Court held that a warrantless arrest is lawful if the arresting officer is aware of facts at the time of the arrest that provide probable cause to believe a criminal offense has been, or is being committed. The Court stated that the existence of probable cause, vel non, is determined based on an objective test, and that an arresting officer s state of mind (except for the facts that he knows) is irrelevant to the existence of probable cause. That is to say, his subjective reason for making the arrest need not be the criminal offense as to which the known facts provide probable cause. The Supreme Court rejected the requirement of the Ninth Circuit that the offense establishing probable cause must be closely related to, and based on the same conduct as, the offense cited by the arresting officer at the time of arrest. Such a limitation, according to the Court, lacks reason and is inconsistent with the Court s precedent, which holds that the subjective state of mind of the officer is irrelevant to the existence of probable cause. Furthermore, according to the Court, the closely related offense rule will not eliminate sham arrests, but will cause officers to cease providing reasons for arrest, or to cite every class of offense for which probable cause could conceivably exist. The Supreme Court declined to decide for the first time the question of whether the officers lacked probable cause to arrest Plaintiff for impersonating an officer or for obstructing the officers. The Ninth Circuit found those offenses legally irrelevant, and for that reason, did not decide that question. Accordingly, the Court remanded the case to the Ninth Circuit to determine whether the officers had probable cause to arrest Plaintiff for impersonating or obstructing a law enforcement officer. THE DETENTION AND HANDCUFFING OF AN OCCUPANT OF A HOUSE DURING THE EXECUTION OF A SEARCH WARRANT WAS REASONABLE UNDER THE CIRCUMSTANCES 3. Muehler v. Mena, 502 U.S. ; 2005 WL (U.S. Supreme Court, March 22, 2005). FACTUAL BACKGROUND In this case, Plaintiff was detained in handcuffs during a search of the premises that she and several others occupied. Police officers who were investigating a gang-related drive-by shooting obtained a valid search warrant to search the house where the suspect was believed to be residing. The warrant authorized a broad search of the house for, among other things, deadly weapons and evidence of gang membership. The officers believed 5

7 that the suspect was armed and dangerous, since he had recently been involved in the drive-by shooting. At 7 a.m., SWAT officers and other officers forcibly entered the house to execute the warrant. Plaintiff, a resident of the house, but not the subject of the investigation, was asleep in her bed when the officers arrived. The officers entered her bedroom and placed her in handcuffs at gunpoint. The SWAT team also handcuffed three other individuals found on the property. The SWAT team took Plaintiff and the three other individuals into a converted garage, which contained several beds and other bedroom furniture. While the search proceeded, one or two officers guarded the four detainees, who were allowed to move around the garage but remained in handcuffs. Plaintiff was detained in handcuffs for approximately two to three hours. Aware that the drive-by shooting suspect was a member of a gang composed primarily of illegal immigrants, the officers had notified the Immigration and Naturalization Service (INS) that they would be conducting the search, and an INS officer accompanied the officers executing the warrant. During the detention in the garage, an officer asked for each detainee s name, date of birth, place of birth, and immigration status. The INS officer later asked the detainees for their immigration documentation. Plaintiff s status as a legal permanent resident was confirmed by her documents. The search of the premises yielded a handgun, ammunition, several baseball bats with gang writing, various additional gang paraphernalia, and a bag of marijuana. Plaintiff was released before the officers left the area. PROCEDURAL BACKGROUND Plaintiff filed a 1983 action against the officers alleging, among other things, that the officers detained her for an unreasonable time and in an unreasonable manner. The officers motion for summary judgment on that issue based on qualified immunity was denied by the district court. After a trial, a jury, pursuant to a special verdict form, found that two of the officers violated Plaintiff s Fourth Amendment right to be free from an unreasonable seizure by detaining her with force greater than that which was reasonable and for a longer period than that which was reasonable. The jury awarded Plaintiff $10,000 in actual damages and $20,000 in punitive damages against each officer for a total of $60,000. The Ninth Circuit affirmed the judgment against the officers on two grounds. In reviewing the denial of qualified immunity, the court first held that the officers detention of Plaintiff violated the Fourth Amendment because it was objectively unreasonable to keep her in handcuffs during the search. In the court s view, the officers should have removed the handcuffs as soon as it became clear that she posed no threat to the officers. The court additionally held that the questioning of Plaintiff about her immigration status constituted an independent Fourth Amendment violation. The Ninth Circuit went on to 6

8 hold that those rights were clearly established, and thus the officers were not entitled to qualified immunity. The U.S. Supreme Court granted certiorari. U.S. SUPREME COURT HOLDING The Supreme Court held first that Plaintiff s detention in the garage for the length of the search did not violate the Fourth Amendment. In Michigan v. Summers, 452 U.S. 692, 705 (1981), the Supreme Court held that officers executing a search warrant for contraband have the authority to detain the occupants of the premises while a proper search is conducted. Here, Plaintiff s detention for the duration of the search was reasonable under Summers because a warrant existed to search the premises and Plaintiff was an occupant of those premises at the time of the search. The Supreme Court held that under the circumstances, the officers use of force in the form of handcuffs to effectuate Plaintiff s detention in the garage during the search was reasonable. According to the Court, this was no ordinary search, as the warrant authorized a search for weapons and a wanted gang member who resided on the premises. In such inherently dangerous situations, the use of handcuffs minimizes the risk of harm to both officers and occupants. Furthermore, according to the Court, the need to detain multiple occupants made the use of handcuffs all the more reasonable. Accordingly, the Court concluded that the two to three hour detention of Plaintiff in handcuffs during the search was reasonable. Finally, the Court held that the officers did not violate Plaintiff s Fourth Amendment rights by questioning her about her immigration status during the lawful detention. According to the Court, mere police questioning does not constitute a seizure, and thus officers are not required to have independent reasonable suspicion in order to question a person during a lawful detention. Here, since the Ninth Circuit did not find that the questioning of Plaintiff concerning her immigration status extended the time of the detention, the Court concluded that the questioning did not violate Plaintiff s Fourth Amendment rights. Note: The law firm of Manning & Marder in Los Angeles filed an amicus curiae brief on behalf of the League of California Cities in support of the petition for a writ of certiorari. 7

9 A CONVICTION FOR RESISTING, DELAYING, OR OBSTRUCTING A PEACE OFFICER DOES NOT NECESSARILY BAR A SECTION 1983 ACTION FOR EXCESSIVE FORCE IN THE NINTH CIRCUIT, DEADLY FORCE FOR FOURTH AMENDMENT PURPOSES IS FORCE THAT CREATES A SUBSTANTIAL RISK OF CAUSING DEATH OR SERIOUS BODILY INJURY 4. Smith v. City of Hemet, 394 F.3d 689 (9th Cir. 2005). FACTUAL BACKGROUND In this case, a police officer responded to a domestic violence call placed by Plaintiff s wife. Upon arrival at Plaintiff s house, the officer observed Plaintiff standing on his front porch, and noticed that he had his hands in his pockets. The officer announced himself and instructed Plaintiff to remove his hands from his pockets. Plaintiff refused, and instead responded with expletives and entered his house. After the officer advised dispatch of what had transpired, Plaintiff returned to the porch with his hands still in his pockets. The officer again instructed Plaintiff to show his hands, and Plaintiff complied. However, Plaintiff refused to obey an order to put his hands on his head and walk toward the officer. Additional officers responded to the scene, including a canine handler and his canine Quando. An officer again instructed Plaintiff to turn around and place his hands on his head. Plaintiff again refused to obey the order, despite being informed that Quando could be sent to subdue him and might bite. According to Plaintiff, without further warning, an officer sprayed him in the face with pepper spray. Plaintiff tried to reenter his residence, but the door had been locked by his wife. Several more officers moved onto the porch, grabbed Plaintiff from behind, slammed him against the door, and threw him down on the porch. The K-9 officer ordered Quando to attack Plaintiff, and Plaintiff was bitten on his right shoulder and neck area. According to Plaintiff, Plaintiff agreed to comply with the officers orders and submit to arrest. Although he submitted, he admitted that he remained in a fetal position to shield himself from the dog, and that one of his arms was out of the officers view. As one of the officers attempted to secure Plaintiff s arms, Quando was instructed to bite Plaintiff a second time and the canine bit Plaintiff on his left side and shoulder blade. After the dog was called off, the officers allegedly dragged Plaintiff off the porch, face down. Plaintiff continued to shield one of his arms from the dog. The K-9 officer then allegedly ordered Quando to bite Plaintiff a third time. This time, the dog bit into Plaintiff s buttock. While all this was transpiring, Plaintiff alleged that he was pepper sprayed at least four times, twice while he was being held by the dog, and at 8

10 least once after the officers had pinned him to the ground. Eventually, the officers were able to handcuff Plaintiff and take him into custody. Plaintiff pled guilty to a violation of Penal Code section 148(a)(1) (willfully resisting, delaying, or obstructing a peace officer in the performance of his duties). PROCEDURAL BACKGROUND Plaintiff brought a 1983 action in U.S. District Court alleging that the officers used excessive force when they sprayed him with pepper spray and deployed the police canine on him. The district court granted summary judgment in favor of the officers on the ground that Plaintiff s guilty plea barred his 1983 action. A Ninth Circuit three-judge panel affirmed the summary judgment in favor of the officers. The Ninth Circuit reheard the case en banc and reversed the order granting the officers motion for summary judgment. NINTH CIRCUIT EN BANC HOLDINGS A. Plaintiff s 1983 Action is Not Barred by Reason of his Criminal Conviction In Heck v. Humphrey, 512 U.S. 477 (1994), the Supreme Court held that a 1983 action to recover damages for an allegedly unconstitutional conviction or imprisonment is barred if a judgment in favor of the plaintiff would necessarily imply the invalidity of his conviction or sentence, unless the conviction or sentence has been reversed, expunged by executive order, declared invalid, or called into question by issuance of a writ of habeas corpus. The relevant question is whether success in a subsequent 1983 suit would necessarily imply or demonstrate the invalidity of the earlier conviction or sentence under Penal Code section 148(a)(1). A conviction for resisting arrest under section 148(a)(1) may be lawfully obtained only if the officers did not use excessive force in the course of making that arrest. Thus, if Plaintiff had pled guilty to section 148(a)(1) based on his physical resistance which occurred during the course of his arrest after the officers came onto the porch, his subsequent suit for excessive force under 1983 would be barred by Heck. In that circumstance, a successful 1983 action by Plaintiff would necessarily mean that the officers had used excessive force to subdue him, and were therefore acting unlawfully at the time the arrest was effected. Since a successful 1983 suit in that case would demonstrate the invalidity of Plaintiff s conviction under section 148(a)(1), his suit would be barred by Heck. However, a conviction based on conduct that occurred before or after the officers used force to effect the arrest would not preclude a 1983 action for excessive force since success under 1983 would not necessarily imply the invalidity of the criminal conviction. 9

11 In this case, by twice refusing to take his hands out of his pockets, reentering his home, repeatedly refusing to put his hands on his head and step down off the porch, Plaintiff violated section 148(a)(1) multiple times before the officers came onto the porch. Since Plaintiff s conviction could have been based on his unlawful failure to comply with the officer s orders while he stood alone and untouched on his porch while the officers were attempting to conduct a lawful investigation of his wife s complaint, the court held that Heck did not bar Plaintiff s 1983 action. B. The Ninth Circuit s New Definition of Deadly Force Plaintiff alleged that the officers used deadly force when the K-9 officer ordered the police canine to attack him. In Vera Cruz v. City of Escondido, 139 F.3d 659 (9th Cir. 1998) (as amended), the Ninth Circuit held that deadly force means force reasonably likely to kill. The court expressly declined to add, or result in serious bodily injury to the definition of deadly force. Plaintiff asked the en banc court to reconsider the Vera Cruz holding and accept the definition of deadly force which is employed by seven other circuits. The court accepted Plaintiff s invitation and overruled Vera Cruz, holding that deadly force is force that creates a substantial risk of causing death or serious bodily injury. The Ninth Circuit did not determine whether the use of Quando constituted deadly force, but left that question for consideration by the trial court. UNDER CALIFORNIA LAW, ATTORNEY FEES MAY BE AWARDED AGAINST PUBLIC ENTITIES UNDER A CATALYST THEORY UNDER CERTAIN CIRCUMSTANCES 5. Tipton-Whittingham v. City of Los Angeles, 34 Cal.4th 604 (2004). FACTUAL/PROCEDURAL BACKGROUND In this case, Plaintiffs filed a class action suit in U.S. District Court on behalf of women police officers and women civilian employees of the Los Angeles Police Department who alleged that they had been subjected to racial or sexual discrimination, or both. Plaintiffs sought injunctive relief and damages pursuant to federal and state constitutional claims. After the case was filed, the parties entered into settlement discussions leading to a consent decree that the district court later revoked. Thereafter, Plaintiffs began new settlement discussions with the newly appointed police chief. The discussions did not result in any contractual or court-ordered agreement. Instead, the Police Department voluntarily instituted several changes directed toward anti-discrimination. Noting that the changes were similar to the original consent decree, Plaintiffs represented to the district court that their injunctive relief claims were moot as they had been resolved 10

12 informally through negotiations. On the parties joint motion, the district court dismissed the claims for injunctive relief. Plaintiffs moved for attorney fees and costs under California Code of Civil Procedure section and the Fair Employment and Housing Act (FEHA), Government Code section 12965(b). Plaintiffs claimed that they had prevailed on their injunctive relief claims due to the City s policy changes, and that their efforts had brought about those changes. The district court granted the motion, awarding Plaintiffs more than $1,703,000 in attorney fees and costs. Later, the City moved for reconsideration of the award in light of the U.S. Supreme Court decision in Buckhannon Board & Care Home, Inc. v. West Virginia Dept. of Health and Human Resources, 532 U.S. 598 (2001). The Buckhannon case rejected the catalyst theory as a legal basis for the recovery of prevailing-party attorney fees under certain federal statutes. The district court granted the City s motion for reconsideration, denied Plaintiffs attorney fees and costs under federal law, but upheld the entire award under California law. The City appealed, and the Ninth Circuit certified to the California Supreme Court two related questions of law: (1) May attorney fees as provided for in CCP section and Government Code section 12965(b) be awarded where the plaintiff has been the catalyst in bringing about the relief sought by the litigation? (2) If the catalyst theory is viable under California law, will that theory support an award of attorney fees where the plaintiff activates the defendant to modify his behavior, or does California law require a judicially recognized change in the legal relationship between the parties, such as a judgment on the merits, a consent decree, or a judicially ordered settlement? CALIFORNIA SUPREME COURT HOLDING The California Supreme Court answered the certification question as follows: California law continues to recognize the catalyst theory and does not require a judicially recognized change in the legal relationship between the parties as a prerequisite for obtaining attorney fees. According to the Court, before attorney fees may be obtained without a judicially recognized change in the legal relationship between the parties, a plaintiff must establish that (1) the lawsuit was a catalyst motivating the defendants to provide the primary relief sought; (2) the lawsuit had merit and achieved its catalytic effect by threat of victory, not by dint of nuisance and threat of expense; and (3) the plaintiffs reasonably attempted to settle the litigation prior to filing the lawsuit. When the case concerns a public entity, the Supreme Court reiterated its holding in Westside Community for Independent Living, Inc. v. Obledo, 33 Cal.3d 348 (1983), which placed another critical limitation on the catalyst theory. In Westside, the Supreme Court held that when a public entity is given discretion as to the timing of performing some action, and the process was ongoing at the time the lawsuit was filed, the fact that a lawsuit may have 11

13 accelerated that performance does not by itself establish eligibility for attorney fees. Accordingly, the Supreme Court concluded that the catalyst theory, as articulated by the Court, applies to an award of attorney fees under both Code of Civil Procedure section and Government Code section 12965, subdivision (b). A CITY ORDINANCE MAKING PRIVATE PROPERTY OWNERS LIABLE FOR INJURIES RESULTING FROM UNSAFE CONDITIONS ON ADJACENT CITY-OWNED SIDEWALKS IS NOT UNCONSTITUTIONAL 6. Gonzales v. City of San Jose, 125 Cal. App. 4th 1127 (2004). FACTUAL AND PROCEDURAL BACKGROUND Plaintiff was injured when she tripped and fell over a rise in the sidewalk in front of a commercial building in the City of San Jose. Plaintiff filed a personal injury action against the City and the owner of the commercial building, alleging that the building owner negligently owned, maintained, managed and operated the sidewalk, and that the City owned the public property on which a dangerous condition existed. The owner of the building filed a motion for summary judgment asserting that he had no liability because Plaintiff s injuries did not occur on his property, but on property owned by the City, and as a result, he did not owe a duty of care to Plaintiff. In addition, the property owner claimed that a City ordinance which makes an adjacent landowner liable to third persons who are injured as a result of dangerous conditions on a City-owned sidewalk was unconstitutional. The trial court granted summary judgment in favor of the property owner. The court held that the City ordinance was preempted by State law, and thus was unconstitutional. Additionally, the court concluded that there was insufficient evidence creating a triable issue of fact as to whether the landowner had sufficient control over the sidewalk to establish his liability under a common law theory. COURT OF APPEAL HOLDING The Court of Appeal reversed the order of the trial court granting summary judgment to the property owner. A City of San Jose ordinance provides that if an abutting property owner fails to maintain a sidewalk in a non-dangerous condition and a person suffers 12

14 injuries as a result thereof, the property owner shall be liable to such person for the resulting damages or injuries. According to the court, the ordinance clearly imposes a duty on abutting landowners to pedestrians to maintain sidewalks in a safe and non-dangerous condition. The court held that the ordinance was not preempted by state law. According to the court, the provisions in the Government Code establishing liability of public entities for dangerous conditions of public property do not preempt the ordinance since state law and the ordinance encompass two separate areas of liability. In addition, the ordinance is not contradictory to state law, as it does not absolve the City of liability for dangerous conditions on public property. Finally, according to the court, the State Legislature did not expressly manifest an intent to fully occupy the field of sidewalk liability, nor did it demonstrate an implied intent to do so. PUBLIC ENTITIES ARE IMMUNE FROM LIABILITY FOR INJURIES OCCURRING ON TRAILS USED BY OFF-HIGHWAY VEHICLES 7. Astenius v. State of California, 126 Cal. App. 4th 472 (2005). FACTUAL AND PROCEDURAL BACKGROUND In this case, a woman died from injuries received while operating an offhighway vehicle [OHV] on a trail within a recreational area owned and operated by the California Department of Parks and Recreation. Her children filed wrongful death suits against the State, alleging that the State knowingly maintained a dangerous condition of its property. The complaints alleged that the area where the accident occurred was well known and widely used for OHV recreation. The State had developed the area by planning, grading, mapping, marking, inspecting and rating trails. The State also developed campgrounds, a ranger station and a visitor s center. The state charged an entrance fee and provided a guide book which showed the trails in the area. The guide book contained a trail rating system, and stated that the trail ratings were intended to make trail use easier and safer. The book also stated that some areas contained hazards, such as gullies, ditches and drop-offs, but that the hazards had been marked. Decedent was riding on the top of a hill and decided to descend the hill on a trail that appeared to be well used. Before descending the hill, decedent stopped, evaluated the trail and looked for barriers and warning signs. There were no indications that the trail was hazardous. Decedent cautiously started down the trail and because the trail was extremely steep, it was impossible to go back. The surface of the trail was 13

15 extremely rough and in poor condition with deep gullies, not visible from the start of the trail, and there were protruding rocks along the trail. During the descent, decedent lost control, and her OHV overturned and slid down the trail. Decedent suffered serious injuries and died later that day. The complaint alleged that the State distributed a publication which assessed the level of difficulty on trails in the area based on factors such as alignment, grade, tread surface and obstacles. The trail used by the decedent contained the extreme of each factor, and no OHV user would expect to encounter the extreme of each factor combined into one trail. The complaint alleged that such a trail would be impossible for anyone to negotiate. Plaintiffs alleged that the State knew the trail was located in a high traffic area and was dangerous. There had been eight prior reported accidents on the trail caused by its dangerous condition. The trial court sustained the State s demurrer on the ground the State was statutorily immune from liability. COURT OF APPEAL HOLDING The Court of Appeal affirmed the decision of the trial court which had sustained the State s demurrer. The appellate court held that the State was immune from liability for the death under Government Code section Section provides that a public entity is not liable for an injury caused by a condition of: (a) Any unpaved road which provides access to... riding, including... all types of vehicular riding.... (b) Any trail used for the above purposes. According to the court, the immunity granted by section is absolute. There is nothing in section that makes the immunity contingent on giving proper warnings, and the fee charged by the State to enter the park did not abrogate the immunity. Based on the facts alleged in the complaint, decedent did not simply ride down the hill, at random. Instead, she chose a path that appeared to be well used. Thus, the court concluded that decedent was on a trail within the usual and ordinary meaning of that term. According to the court, the fact that the trail may have been within an area designated for unrestricted riding was irrelevant. 14

16 A CLAIM FOR MONEY OR DAMAGES COMPLIES WITH THE TORT CLAIMS ACT IF IT PROVIDES THE PUBLIC ENTITY WITH NOTICE OF ALL THEORIES OF LIABILITY 8. Stockett v. Association of Cal. Water Agencies Joint Powers Ins. Authority, 34 Cal. 4th 441 (2004). FACTUAL AND PROCEDURAL BACKGROUND Plaintiff was the general manager of the Defendant public agency that provided insurance and risk management services to nearly 300 public water agencies in California. Under the terms of his employment contract, Plaintiff was an at-will employee. The public agency terminated Plaintiff s employment, and was unwilling to disclose its reasons for the termination. Plaintiff presented a tort claim to Defendant, alleging that Plaintiff had been wrongfully terminated. The claim stated that Plaintiff had been wrongfully terminated for supporting another employee s sexual harassment complaints. The claim identified Malone, the agency s insurance broker, as the instigator of the termination, and stated the date on which the termination occurred. The claim was denied, and Plaintiff brought a wrongful termination action against the public agency. Plaintiff later sought to amend the complaint to allege that he had been terminated in violation of public policy on three grounds: (1) opposing sexual harassment by Malone in the workplace; (2) objecting to a conflict of interest involving Malone s dual role as both the agency s insurance consultant and a vendor of insurance products to the agency; and (3) exercising his First Amendment right of free speech by objecting to the agency s practice of not having its insurance purchased on the open market through an open bid process. The agency opposed Plaintiff s motion to amend the complaint, contending that the facts alleged in the amended complaint had not been set forth in the government tort claim. The court allowed the filing of the amended complaint, and the case proceeded to trial. The jury was given the following instructions: (1) an employer shall not terminate an employee in retaliation for disclosing a practice that violates the conflict of interest provisions of the Political Reform Act; (2) an employer shall not terminate an employee in retaliation for opposing sexual harassment as prohibited by the Fair Employment and Housing Act; and (3) an employer shall not terminate an employee in retaliation for the exercise of the employee s free speech rights protected by the First Amendment. The jury returned a verdict in Plaintiff s favor, awarding him about $4.5 million in damages. The Court of Appeal reversed the judgment, holding that [by] allowing the conflict of interest and free speech theories to be presented to the jury, the trial court allowed [Plaintiff] to present a very different case than one based solely on retaliation for objection to sexual harassment. 15

17 CALIFORNIA SUPREME COURT DECISION The California Supreme Court unanimously reversed the judgment of the Court of Appeal. Government Code section 910 requires that a claim for money or damages state the date, place, and other circumstances of the occurrence or transaction which gave rise to the claim asserted and provide [a] general description of the... injury, damage or loss incurred.... The purpose of the statute is to provide public entities with sufficient information to enable them to adequately investigate claims and to settle them, if appropriate. The facts underlying each cause of action in a complaint against a public entity must have been fairly reflected in a timely claim. A complaint which is based on an entirely different set of facts than those stated in the claim is vulnerable to a demurrer. Nelson v. State of California, 139 Cal. App. 3d 72, 79 (1982). Here, according to the Court, Plaintiff s tort claim provided sufficient information for the public entity to conduct an investigation and evaluate the merits of the two additional wrongful termination theories asserted at trial; that Plaintiff was fired for opposing Malone s conflict of interest, and that he was fired for exercising his right to free speech. Plaintiff was not required (in order to comply with the Tort Claims Act), to claim more than the fact that his employer wrongfully terminated him, provided he furnished the basic circumstances of that occurrence. Although Plaintiff s tort claim did not specifically assert that his termination violated the public policies favoring free speech and opposition to public employee conflicts of interest, the Court concluded that they did not constitute a different set of facts or constitute additional causes of action, but were merely additional theories of wrongful termination. Since Plaintiff s additional free speech and conflict of interest theories were based on the same factual foundation that was stated in the claim, the amended complaint did not change the fundamental facts of the claim. Therefore, the Court concluded that Plaintiff was not precluded from amending his complaint to include those theories or from presenting them to the jury. 16

18 MUNICIPAL TORT AND CIVIL RIGHTS LITIGATION UPDATE TABLE OF CONTENTS 1. Brosseau v. Haugen, 125 S. Ct. 596 (2004). PAGE POLICE OFFICERS ARE ENTITLED TO QUALIFIED IMMUNITY UNDER SECTION 1983, UNLESS IT WOULD BE CLEAR TO A REASONABLE OFFICER THAT THE POLICE ACTIONS WERE UNLAWFUL IN THE SITUATION CONFRONTING THE OFFICERS Devenpeck v. Alford, 125 S. Ct. 588 (2004). A WARRANTLESS ARREST IS LAWFUL UNDER THE FOURTH AMENDMENT IF, GIVEN THE FACTS KNOWN TO THE OFFICER, THERE IS PROBABLE CAUSE TO BELIEVE A CRIME HAS BEEN COMMITTED Muehler v. Mena, 502 U.S. ; 2005 WL (U.S. Supreme Court, March 22, 2005). THE DETENTION AND HANDCUFFING OF AN OCCUPANT OF A HOUSE DURING THE EXECUTION OF A SEARCH WARRANT WAS REASONABLE UNDER THE CIRCUMSTANCES Smith v. City of Hemet, 394 F.3d 689 (9th Cir. 2005). A CONVICTION FOR RESISTING, DELAYING, OR OBSTRUCTING A PEACE OFFICER DOES NOT NECESSARILY BAR A SECTION 1983 ACTION FOR EXCESSIVE FORCE IN THE NINTH CIRCUIT, DEADLY FORCE FOR FOURTH AMENDMENT PURPOSES IS FORCE THAT CREATES A SUBSTANTIAL RISK OF CAUSING DEATH OR SERIOUS BODILY INJURY... 8 i

19 TABLE OF CONTENTS 5. Tipton-Whittingham v. City of Los Angeles, 34 Cal.4th 604 (2004). PAGE UNDER CALIFORNIA LAW, ATTORNEY FEES MAY BE AWARDED AGAINST PUBLIC ENTITIES UNDER A CATALYST THEORY UNDER CERTAIN CIRCUMSTANCES Gonzales v. City of San Jose, 125 Cal. App. 4th 1127 (2004). A CITY ORDINANCE MAKING PRIVATE PROPERTY OWNERS LIABLE FOR INJURIES RESULTING FROM UNSAFE CONDITIONS ON ADJACENT CITY-OWNED SIDEWALKS IS NOT UNCONSTITUTIONAL Astenius v. State of California, 126 Cal. App. 4th 472 (2005). PUBLIC ENTITIES ARE IMMUNE FROM LIABILITY FOR INJURIES OCCURRING ON TRAILS USED BY OFF-HIGHWAY VEHICLES Stockett v. Association of Cal. Water Agencies Joint Powers Ins. Authority, 34 Cal.4th 441 (2004). A CLAIM FOR MONEY OR DAMAGES COMPLIES WITH THE TORT CLAIMS ACT IF IT PROVIDES THE PUBLIC ENTITY WITH NOTICE OF ALL THEORIES OF LIABILITY ii