Civil Rights 1983 Liability Update

Civil Rights 1983 Liability Update David DeMuro Vaughan & DeMuro Roberto Ramírez Arvada City Attorney s s Office Areas of Discussion 1. Conflict of Interest 2. Municipal Attorney Liability under 1983 3. Collateral liability in 1983 cases 4. 1983 in 5. 1983 Cases of Interest Conflict of Interest Do I really have to hire all these lawyers to defend the city and its city employee co- defendants in a sec. 1983 case? Is there a concurrent conflict of interest under RPC 1.7(a)? If so, may the attorney handle the case with consent? The problem of duties to former clients under RPC 1.9. Multiple client issues. What happens if the attorney must withdraw? Limits on control over the attorney for the individual employee. Giving advice to police officers. Not enough research on your part strips you of your immunity. Stearns v. many defendants including county attorney, --- F.3d ---- 2010 WL 3191511 August 13, 2010 Scenario: 4:55 pm on Friday afternoon before a holiday weekend. You are one of the few attorneys in the office. Police Officer walks in needing a quick question answered. It will only take a minute. Your specialty is land use, but every time you pass by the prosecutor s s office you are intrigued by the masses of hot messes so you peak in. That is as close to criminal law as you typically come. Officer: There is this guy that I pulled over from Texas yesterday during the day. He was on his way to a funeral. It was his dad s s funeral. One of our police officers killed his dad. The guy is angry at the police department. I didn t t give him a ticket, but he still thinks it is me that killed his dad. 1

Officer: Around midnight my wife called to say that someone who fits his description went to our front door and knocked. When she didn t t answer he walked away and said the word, later. later. Officer: At about 3:00 am I spotted him. I didn t pull him over, I simply followed him...and followed him...and followed him until he pulled over on his own and got out of his car voluntarily. I demanded to know where he had been earlier that night. He told me to mind my own business. Then he told me that I m I probably the mother fucker that shot his dad. I declined to discuss the incident and he declined to discuss where he had been that night. Officer: Can I arrest this guy. He is out of control. Do we have enough? You: (You pull out the ordinance book and open it to the code provisions dealing with criminal offenses. You find the section dealing with disorderly conduct.) You: Yes, you have probable cause to arrest him for disorderly conduct on either incident the issue with your wife and when you had the consensual contact with him later. Officer: Thanks. Chief of Police: (Calls you on the phone 15 minutes later.) Did you talk to my officer? Did he tell you what happened? Can we arrest this guy. He is out of control. Do we have enough? Plaintiff gets arrested. You get sued. You (according to Chief of Police at his deposition): Attorney informed me that he believed there was probable cause to arrest Plaintiff for disorderly conduct and that Plaintiff should be arrested before something else happened. 2

Attorney filed motion for summary judgment based on qualified immunity. Mr. Stearns alleges that County Attorney Smith violated his Fourth Amendment rights by ordering his arrest without probable cause. On appeal, Mr. Smith argues that he is entitled to qualified immunity because he had a reasonable belief that probable cause existed to arrest Mr. Stearns for disorderly conduct. The attorney looked up the appropriate statute, however he did not do any research. Since 1980, this section has been limited to words which by their very utterance inflict injury or tend to incite an immediate breach of the peace [i.e., fighting words ]... Furthermore, the Supreme Court has held that the First Amendment protects a significant amount of verbal criticism and challenge directed at police officers. Thus, it is not objectively reasonable to arrest someone for criticizing the police and not every epithet directed at a police officer constitutes disorderly conduct. As to the incident at the officer s s house, the Court held [t]hese facts would not lead a reasonable person to conclude that probable cause existed to arrest Mr. Stearns for disorderly conduct. As to the incident after the officer s s house, the Court held it was unreasonable for Mr. Smith to believe that probable cause existed to arrest Mr. Stearns. Accordingly, the district court properly denied his motion for summary judgment based on qualified immunity. Conclusion for attorney: No qualified immunity. Lesson learned: Always be able to back up your legal advice with something more than what is in your ordinance. 3

Medical Claims against a municipality. (2) Persons arrested or in custody shall be treated humanely and provided with adequate food, shelter, and, if required, medical treatment. Colo. Rev. Stat. Ann. 16-3-401(2) 1st Scenario: Police have a suspect completely surrounded with their cars. Suspect is in a stolen car in the middle. Officer gets out of the car to effectuate the arrest with a taser in hand. Suspect speeds at the officer. Officer screams at suspect to stop. Officer keeps moving back. Officer re-holsters his taser and takes his weapon out. As suspects car is getting close and as the officers begins to fear for his life, he pulls the trigger and unloads his weapon. Suspect is now a quadriplegic. Hospital claims $1.2 million in medical bills. Suspect, turns into a criminal defendant and judge sentences him to 38 years for trying to kill a cop. Criminal defendant turns into a civil rights plaintiff. Hospital also turns into a plaintiff against the City. 2nd Scenario: Following his arrest by city police, a suspect injured himself when he escaped through the window of a police van that was traveling at a high speed. He was taken by ambulance to the hospital, where he underwent surgery and remained for several days. The hospital presented a statutory claim to the City for $26,625, the cost of the medical treatment and hospitalization. Where a state statute unambiguously imposes a duty on governmental entities to provide medical treatment and care for detainees in their custody,, such a duty includes or, at a minimum, implies an inherent obligation to pay the costs of such treatment and care. Poudre Valley Health Care Inc v. City of Loveland, 85 P.3d 558 (Colo. App. 2003), Cert denied. 4

Our conclusion accords with the General Assembly s s evident intent to place the duty to provide such medical care on the entities holding the detainees. Id. The basis of our ruling is that in expressly requiring governmental entities to provide medical care to pretrial detainees, the General Assembly intended to impose a corollary duty to pay for such care. It is illogical to assume that the General Assembly intended to impose a duty on governmental entities to provide or arrange for the provision of such care for pretrial detainees, but did not intend to require the entities to pay the very medical providers through whose efforts that duty is discharged. Id. Questions Not Answered: 1. How do you define custody? 2. Is there a requirement for medical providers to go after the suspect first if the governmental entity did not cause the injury? How your Municipal Code can have 1983 implications. 3. What if the governmental entity finds the suspect in a condition that requires medical attention? Riggins v. Goodman,, 572 F.3d 1101 (10th Cir. 2009) Scenario: Police Officer gets terminated from his employment. (Assume the reason for termination is a lawfully proper one) The City s s policies provided that a department director may impose dismissal upon the prior approval of the Human Resources Officer and City Administrator. Chief of Police sent a memo to the Human Resources Director and City Manager explaining his reasons for recommending Officer s s termination. The City Manager and acting Human Resources Director provided the requisite approval. 5

Chief of Police sent Officer a letter stating This letter is to advise you of the City s s decision to terminate your position effective [two weeks from today.] Your administrative leave without pay continues until the final outcome of any hearings you may request. Id. The letter also explained the administrative process available to contest the decision, including the opportunity for a hearing and the right to object to the proposed termination before a final decision would be made. The letter further explained that following the hearing before the Chief of Police - if one was requested - Chief would make his final decision ; ; that decision then would be subject to an appeal through the City s human resources department. Plaintiff s s letter triggered the City s s three-step appeal process. Step one allows an employee to present his appeal to the department ent director (Chief of Police). If the grievance is not settled in step one, an employee has five working days, pursuant to step two, to forward the written grievance to the Human Resources Officer who will then meet with him. Officer, represented by counsel, lost at every stage of the three-step appeals process. Finally, step three involves an appeal to the City Administrator.. The decision of the City Administrator is final and binding on the parties. Officer took advantage of the three-step appeals process. Two arguments on appeal. (1) City officials failed to afford Officer adequate due process prior to discharging him. (2) City s decisionmakers were biased against him and had made up their minds before he had a chance to present his side of the story. Due Process Before Termination. To assess whether an individual was denied procedural due process, courts must engage in a two-step inquiry: (1) did the individual possess a protected interest such that the due process protections were applicable; and, if so, then (2) was the individual afforded an appropriate level of process. 6

For government employees, such a hearing requires: (1) oral or written notice to the employee of the charges against him; (2) an explanation of the employer s s evidence; and (3) an opportunity for the employee to present his side of the story. What does that mean? A full evidentiary hearing is not required prior to an adverse employment action. Instead, the employee needs only to be given notice and an opportunity to respond. Plaintiff s s 1st Argument: Plaintiff contends the original letter from the Chief of Police discharged him. He thus argues the hearings afforded to him took place after he was terminated and could not cure the lack of adequate pre- termination process. Why Plaintiff s s Argument Fails: 1. The initial letter the Chief of Police gave Plaintiff explained that the termination wouldn t t take effect until a future date and would be postponed if he invoked his appellate rights. 2. During the appeal process, the City maintained him on administrative leave, he was mot removed from the City s employee rolls, and the City did not discontinue his benefits or change his employment status until the conclusion of step three of the process. As to the Chief recommending discharge prior to the hearing: Nothing requires a municipal employer to hold a hearing prior to the initial decision to terminate a position; rather a hearing is required before the employee is deprived of any significant property interest. 2nd Argument: Plaintiff also contends his constitutional right to a fair tribunal was violated because the City s decisionmakers were biased since the City s investigatory and adjudicative functions were combined in the same personnel; the same individuals approved the initial decision to terminate him and then presided over the hearings contesting the decision; that they had already made up their minds that he should be terminated prior to presiding over the hearings. 7

Why Plaintiff s s Argument Fails: 1. The role of city employees in the process with some knowledge of the matter does not ordinarily create concern. Mere familiarity with the facts of a case gained by an agency in the performance of its statutory role does not disqualify a decisionmaker and demonstrate actual bias. 2. An administrative tribunal member is not disqualified because that member participated in the initiation of the proceedings. Why Plaintiff s s Argument Fails: 3. In many small public agencies human resource personnel wear multiple hats. Thus, the contention that the combination of investigative and adjudicative functions necessarily creates an unconstitutional risk of bias in administrative adjudication has a difficult burden of persuasion to carry. Otherwise, almost anytime an employee in a small bureaucracy-where everyone knows everyone else-clashes with his superiors, the body elected to make disciplinary decisions will be constitutionally disqualified from doing so. However...(Press releases) Personal bias may be shown by prior statements going to the merits or animus that establish the decisionmaker cannot be fair. -- In McClure v. ISD No. 16,, 228 F.3d 1205 (10th Cir.2000) bias was established where decisionmakers publicly stated their intent to terminate Plaintiff s s employment prior to the hearing at which the matter of her termination was to be decided. -- In Staton v. Mayes,, 552 F.2d 908, 914 (10th Cir.1977) bias was shown when 3 of 5 school board members made statements prior to the hearing that the superintendent should be fired. Arrest & Strip Search Is a police officer entitled to qualified immunity from liability for arresting a woman for supposedly violating a civil protection order where she was the protected party? Or, when the woman needs to use a breast pump so her baby can have breast milk, does the officer get qualified immunity for placing the woman in a room with a female cadet? Shroff v. Spellman, 604 F.3d 1179 (10 th Cir. 2010) (officer not entitled to qualified immunity on arrest claim; officer violated plaintiff's Fourth Amendment right to personal privacy by requiring her to expose her breasts to female cadet). What is the settlement value of such claims? First Amendment What is new on the Garcetti line of cases? Garcetti: : 527 U.S. 410 (2006) (when a public employee is terminated for speaking about her official duties, as opposed to speaking as a citizen on a matter of public concern, she has no 1 st Amendment retaliation claim). Montgomery v. Board of County Comms,, Douglas County,, 637 F.Supp. 934 (D. Colo. 2009) (county loses summary judgment motion on 1 st amendment claim by asst. county coroner). Morris v. City of Colorado Springs,, 2010 WL 728554 (D. Colo. 2010) (city wins summary judgment on nurse s s 1 st Amendment claim based on her job reassignment following her notice of claim to city complaining about her treatment by physician). Williams v. McCallin,, 2010 WL 2985598 (D. Colo. 2010) (higher education officials win summary judgment on manager s s 1 st Amendment claim that he was fired in retaliation for the expectation that he would speak out). Seizure When cops and robbers get in a shoot out, and the cop shoots the robber as he is escaping over a fence, does the robber have a 4 th Amendment claim for a seizure? seizure? Not if he gets over the fence and runs away! Brooks v. Gaenzle,, F.3d, 2010 WL 3122800 (10 th Cir. 2010) 8

Emergency Aid Exception Must police officers have ironclad proof of a likely serious, life-threatening injury to invoke the emergency aid exception to the warrant requirement? Search Does a police department violate the 4 th Amendment by reading sexually explicit text messages sent by a SWAT team member on an department issued pager? Michigan v. Fisher,, 558 U.S.,130 S.Ct.. 546 (2009) (warrantless entry was reasonable; exception does not depend on the officers' subjective intent or the seriousness of any crime they are investigating when the emergency arises; exception requires only an objectively reasonable basis for believing, that a person is in need of immediate aid). City of Ontario, California, et al v. Quon,, et al,, 130 S.Ct. 2619 (June 17, 2010) (review of officer's text messages was reasonable, and thus did not violate Fourth Amendment). End 9