Litigation Update: Special Edition – Excessive Force Cases

After George Floyd died in police custody, the California Lawyers Association assembled a Racial Justice Committee. One of the many steps taken by the committee was to simply compile the cases published in Litigation Update involving allegations of excessive force by the police. The Litigation Section has been publishing summaries of selected opinions by the United States Supreme Court, Ninth Circuit Court of Appeals, California Supreme Court, and California Courts of Appeal for many years. The purpose of the compilation is to draw attention to how often and in what different forms issues relating to allegations of excessive force by the police arise in our courts. It must be remembered that Litigation Update does not include all opinions from those courts, and rarely includes criminal cases. The cases below do not include either cases that were never appealed or unpublished appellate opinions. The following is a list of excessive force summaries reported in Litigation Update since 2011.

Shooting with Gun Instead of Taser.

A police officer, mistaking his Glock semiautomatic pistol for a stun gun, shot and killed an arrestee. The deceased’s family filed suit under 42 U.S.C. § 1983, and the district court granted summary judgment. Both weapons were black, of similar size and weight, and placed closely on the holster. Additionally, once before the fatal shooting, the officer mistakenly put the stun gun in the Glock holster. Another time, she pulled out the Glock instead of the stun gun. The district court found the officer’s mistake in shooting the arrestee was reasonable as a matter of law and entitled to qualified immunity. Reversing, the Ninth Circuit Court of Appeals decided that a reasonable jury could weigh the significance of the officer’s risk awareness and daily practice differently from the way the district court weighed those factors. (Torres v. City of Madera (9th Cir. 2011) 648 F.3d 1119.)

Newspaper Entitled to Names of Officers Involved in Shooting.

 The Los Angeles Times made a request under California’s Public Records Act (Gov. Code, § 6250) seeking the names of police officers involved in a December 2010 officer involved shooting in Long Beach as well as the names of officers involved in all shootings over the previous five years. The city initially said it intended to provide the information, but the Long Beach Police Officers Association asked for an injunction preventing disclosure. After initially issuing a temporary restraining order, the trial court granted the Los Angeles Times’s request to dissolve the order and denied a request for an injunction. Affirming, the Court of Appeal noted that the public interest in the conduct of peace officers is substantial, officers’ names are not personnel records or personal data, and their disclosure would not amount to an invasion of privacy. (Long Beach Police Officers Assn. v. City of Long Beach (2012) 203 Cal.App.4th 292, review granted.)

The matter made its way to the California Supreme Court, which affirmed the appellate court’s decision, stating: “We do not hold that the names of officers involved in shootings have to be disclosed in every case, regardless of the circumstances. We merely conclude, as did the trial court and the Court of Appeal, that the particularized showing necessary to outweigh the public’s interest in disclosure was not made here, where the Union and the City relied on only a few vaguely worded declarations making only general assertions about the risks officers face after a shooting. The public records request by the Times is broadly worded and covers a wide variety of incidents. Thus, the Union and the City sought a blanket rule preventing the disclosure of officer names every time an officer is involved in a shooting. Such a rule would even prevent disclosure of the name of an officer who acted in a heroic manner that was unlikely to provoke retaliation of any kind, in which case officer safety would not be an issue. We reject that blanket rule.” (Long Beach Police Officers Assn. v. City of Long Beach (2014) 59 Cal.4th 59.)

No Qualified Immunity for Police Officer in Wrongful Death of Suspect.

A jury found a police officer caused the wrongful death of a suspect who died “through the unconstitutional use of excessive force” while in police custody at a hospital. The Court of Appeal described the facts: “the combined effect of [the] evidence supports a finding that Macias punched and ‘Tasered’ a nonresisting and compliant man that he knew was emotionally troubled and physically ill, and continued to do so when Mendoza did no more than flinch from the pain and cry for help. It also shows that Macias was responsible for the restraint that caused Mendoza to asphyxiate.” Affirming, the court found such conduct violated a clearly established constitutional right, and the qualified immunity doctrine did not apply. (Mendoza v. City of West Covina (2012) 206 Cal.App.4th 702.)

Jury May Decide Whether Force Was Excessive.

Plaintiff sued a city and two police officers for using excessive force when they arrested him. The trial court granted a nonsuit when plaintiff failed to present expert testimony at trial, finding he could not prevail without expert testimony regarding “what force a reasonable law enforcement officer would have used under the same or similar circumstances.” Reversing, the Court of Appeal stated: “there is nothing about the particular use of force in this case that was so far removed from the comprehension of a lay jury as to necessitate expert opinion testimony.” (Allgoewer v. City of Tracy (2012) 207 Cal.App.4th 755.)

No Duty on Manufacturer to Warn of Risks Not Knowable.

After report of a disturbance, police went to a scene and found a man “either really high or crazy.” The man struck the police vehicle with his hand and continued on his way. The situation deteriorated with the man breaking a fence, assuming a batter’s position, and swinging a two-by-four at officers. After the man ignored verbal commands, police used a Taser on him. They continued to use the Taser as the man continued to resist. The man went into cardiac arrest and died. The man’s family brought an action against the Taser manufacturer, claiming it should have warned that repeated use can cause fatal levels of metabolic acidosis. The district court granted summary judgment in favor of the manufacturer. Affirming, the Ninth Circuit found there was no duty to warn because the risk of acidosis was not known at the time of distribution. (Rosa v. TASER Int’l, Inc. (9th Cir. 2012) 684 F.3d 941.)

No Qualified Immunity for Police Officers Who Caused Injury.

An injured U.C. Davis student brought an action for violation of his Fourth Amendment right to be free from unreasonable seizure after police fired pepperball guns in an attempt to disperse a crowd and the student suffered serious eye injuries and a loss of his athletic scholarship. The district court found that the student had a clearly established constitutional right, that right was violated, and the officers were not entitled to qualified immunity. Affirming, the Ninth Circuit found a reasonable officer would have known that firing projectiles in the direction of individuals suspected of minor crimes, who posed no threat to the officers or others and engaged in only passive resistance, was unreasonable. (Nelson v. City of Davis (9th Cir. 2012) 685 F.3d 867.)  

No Fourth Amendment Violation for Tasing Suspect to Death.

In a bloody domestic violence situation, police used a Taser on a suspect who would not release hold of a child. The suspect went into cardiac arrest and died. The district court granted summary judgment to the officers and the manufacturer. Affirming, the Ninth Circuit stated that courts must balance the nature and quality of the intrusion against the countervailing governmental interests at stake. While there was significant intrusion upon the deceased’s Fourth Amendment rights, it was reasonable under the circumstances of the case. (Marquez v. City of Phoenix (9th Cir. 2012) 693 F.3d 1167.)

No Qualified Immunity for Sheriff’s Officers; Question Of Fact Whether Fourth Amendment Violation.

A woman was shot in the jaw by her husband. Paramedics determined she needed to be transported by air ambulance, and put her in an ambulance to take her to the landing zone. A sheriff’s sergeant at the scene refused to let the ambulance leave immediately because he viewed the area as a crime scene and thought the victim had to be interviewed. The ambulance was delayed approximately 5 to 12 minutes. The trip to the landing zone took 11 minutes, and the woman died en route. The deceased family brought an action against various sheriff’s officers under 42 U.S.C. § 1983. The district court denied the officers’ summary judgment motion. Affirming, the Ninth Circuit noted that officers normally could not be held liable under § 1983 for an injury inflicted by a third party, but the danger exception applies when government officers affirmatively place a victim in a position of danger. The deceased’s father also sued the sheriff’s officers for violating the Fourth Amendment. At the scene, the sergeant had ordered the parents separated. When the father was informed his daughter died, he attempted to find his wife and tell her about their daughter’s death. He was sprayed with pepper spray, struck with a baton, and handcuffed. Affirming the district court’s denial of summary judgment on this claim too, the Ninth Circuit found there was a question of fact as to the reasonableness of the officer’s conduct. (Maxwell v. County of San Diego (9th Cir. 2013) 708 F.3d 1075.)

Warrantless Entry into Curtilage of Home Was an Unconstitutional Search.

Plaintiff was standing behind the gate at the entrance to her home when a police officer kicked it down and knocked her unconscious. The officer believed his warrantless entry into the curtilage of plaintiff’s home was justified by his pursuit of a suspect “who had committed at most a misdemeanor offense by failing to stop for questioning in response to a police order.” The district court dismissed plaintiff’s case after finding the officer was entitled to qualified immunity. Reversing, the Ninth Circuit concluded the officer’s actions amounted to an unconstitutional search: “We hold that the law at the time of the incident would have placed a reasonable officer on notice that his warrantless entry into the curtilage of a home constituted an unconstitutional search, which could not be excused under the exigency or emergency exception to the warrant requirement.” (Sims v. Stanton (9th Cir. 2013) 706 F.3d 954.)

The United States Supreme Court granted a writ of certiorari, and reversed the Ninth Circuit’s judgment, holding the police officer’s actions were not “plainly incompetent.” (Stanton v. Sims (2013) 571 U.S. 3.)

Police Officer Was Not Mandated to Report His Own Sexual Assault of a Minor.

Minor plaintiff was sexually assaulted by a police officer when she was on an explorer program and doing ride-alongs with him. She brought an action against the city, alleging the city was vicariously liable for the police officer’s negligence based on his breach of the mandatory duty to report the sexual abuse to a child protective agency (Pen. Code, § 11166, subd. (a)). The trial court sustained the city’s demurrer. Affirming, the Court of Appeal found that the Child Abuse and Neglect Reporting Act did not impose a mandatory duty for the police officer to report his own acts of sexual abuse of a minor, since such a requirement would render the statute unconstitutional as a forfeiture of the police officer’s Fifth Amendment privilege against self-incrimination. (Kassey S. v. City of Turlock (2013) 212 Cal.App.4th 1276.)

No Immunity for CHP Officer.

After being penned in by police officers, the driver of a stolen vehicle refused to turn off the engine following a 100 mph police chase. One officer opened fire on the driver, killing her. A jury awarded $30,000 each to the two children of the driver, and the district court awarded almost a half a million dollars in fees and costs. The district court declined to grant the police officer judgment as a matter of law, finding a jury could have reasonably concluded the officer acted with a purpose to harm that was unrelated to a legitimate law enforcement objective because: the deceased was contained in a dead-end street, she repeatedly told the officer to commit an act which was anatomically impossible when he ordered her to get out of the car, no officers were in the path of her car, the other officers testified they did not feel threatened, five other officers had their guns drawn but did not fire, and the officer shot the deceased twelve times. Affirming, the Ninth Circuit stated that “once a jury has found (with reasonable support in the evidence) such a due process violation on the part of the officer, he may not successfully assert qualified immunity in a post-verdict motion for judgment as a matter of law.” (A.D. v. State of Cal. Highway Patrol (9th Cir. 2013) 712 F.3d 446.)

False Imprisonment Action Against Counties to Proceed.

A man was stopped by police for driving while talking on a cell phone. He handed over his driver’s license, which showed his name as Freddy Pantoja Rodriguez, his registration, and his proof of insurance. After the two officers held a discussion, appellant was told to step out of his car, and one of the officers said, “We got you now, Ramos.” Appellant replied that his name was Rodriguez, not Ramos. One of the officers slammed him against a wall and asked if he had any weapons or tattoos, to which he replied “no.” The officer then looked under his shirt, and placed him in the patrol car. It turns out that more than 20 years earlier, a no-bail bench warrant was issued by the superior court for the arrest of another man for a parole violation. The bench warrant stated the name as “Rodriguez Alfredo Ramos.” In jail, he was placed in a gang cell and feared for his life. After spending 11 days in jail, it was adjudicated that he was not the person named in the bench warrant. The man brought an action for false imprisonment against two counties, the one where he was arrested and the one where he was held. The trial court dismissed his case, determining that the counties were immune from liability under Venegas v. County of Los Angeles (2004) 32 Cal.4th 820. Reversing, the Court of Appeal found that a county can be held vicariously liable for false imprisonment by county employees. The immunity described in Venegas applied only to federal § 1983 claims, not to state law tort claims. (Rodriguez v. County of Los Angeles (2013) 217 Cal.App.4th 806.)

Hate Crime Statute Applied Against Police Officers.

The Bane Act protects “the exercise or enjoyment . . . of rights secured by the Constitution or laws of the United States, or of the rights secured by the Constitution or laws of this state,” and it allows anyone “whose rights have been interfered with . . . [to] sue for damages.” (Civ. Code, § 52.1, subds. (a), (b).) Plaintiff, the manager of an apartment complex, asked police why they were arresting some tenants, and he was beaten and arrested himself. He was acquitted of all criminal charges, and a civil jury subsequently awarded him $523,000. The court awarded $989,258 in attorney fees. Affirming, the Court of Appeal rejected defendant county and police officers’ argument that Fourth Amendment rights are not among the constitutional rights protected by the Bane Act: “the Bane Act applies because there was a Fourth Amendment violation – an arrest without probable cause – accompanied by the beating and pepper spraying of an unresisting plaintiff, i.e., coercion that is in no way inherent in an arrest, either lawful or unlawful.” (Bender v. County of Los Angeles (2013) 217 Cal.App.4th 968.)

Names of Police Officers Involved in Pepper Spraying Incident Ordered Released.

A labor union representing University of California police officers filed a petition for writ of mandate challenging a trial court order requiring the release of unredacted reports containing the names of police officers under the California Public Records Act (Gov. Code, § 6250; CPRA) to the Los Angeles Times and Sacramento Bee. The reports concerned an incident on the U.C. Davis campus during which U.C. Davis police officers were videotaped pepper spraying demonstrators. The reports were produced, but with the names of about a dozen officers redacted. Agreeing with the trial court that the identities of the officers named in the reports must be disclosed because the information was not exempted under Penal Code § 832.7, the appellate court denied relief. (Federated University Police Officers Assn. v. Superior Court (2013) 218 Cal.App.4th 18, review granted and depublished following Long Beach Police Officers Assn. v. City of Long Beach (2014) 59 Cal.4th 59.)

Ninth Circuit Reverses Grant of Summary Judgment in Excessive Force Action Involving Death of an Attorney.

In response to a hang-up 911 call, police arrived at a home to find a delusional man, an attorney, sitting in the driveway. It took four officers to handcuff him. Even after being handcuffed, the man pumped his fists and kicked his feet and toes onto the asphalt. An officer kept his knee on the man’s upper back. At some point, the man stopped moving and officers became concerned. He was dead when paramedics arrived. The man’s parents filed an action for excessive force, and their expert testified about a phenomenon called restraint asphyxia. At the close of plaintiff’s evidence, the defendant sought summary judgment as a matter of law. The district court deferred a decision and submitted the case to the jury, which hung. At that point, the court granted summary judgment. Reversing, the Ninth Circuit concluded the district court made impermissible credibility determinations. However, it declined to order reassignment to a different judge, as requested by the decedent’s parents. (Krechman v. County of Riverside (9th Cir. 2013) 723 F.3d 1104.)

No Qualified Immunity for Deputies Who Shot Terminally Ill Man.

In the early morning, a wife observed her terminally ill husband, who was suffering from brain cancer, go to his truck, retrieve his gun, and load it with ammunition. She called 911, but her husband told her to hang up, and she did. Police nevertheless responded, and the wife explained the situation. The husband came into view of the deputies. He held a pistol, barrel down, in one hand and his walker in the other as he appeared on a balcony of the home. “Soon after the deputies broadcast that [the husband] had a firearm, the dispatch log records ‘shots fired.’ [The husband] fell to the ground, and [a deputy] continued to shoot. Together the three deputies fired approximately nine shots.” The husband died. The wife brought an action under 42 U.S.C. § 1983. The district court denied qualified immunity as well as the deputies’ motion for summary judgment, and the deputies appealed. Affirming, the Ninth Circuit agreed the three deputies could be found to have violated the Fourth Amendment’s prohibition on excessive force. (George v. County of Santa Barbara (9th Cir. 2013) 724 F.3d 1191.)

County Likely to Face Jury in Suicidal Man’s Death.

A neighbor heard screaming from a house and called police. When deputies arrived at the house, a man’s girlfriend said the man tried to kill himself. Deputies entered the house and found the man standing in the kitchen. They ordered him to show his hands, and as he did, he walked toward the deputies holding a large knife in his raised right hand. The two deputies simultaneously drew their guns and fired two shots each at the man, who died from gunshot wounds. The decedent’s daughter brought an action in federal court, and the district court granted summary judgment for the county. The daughter appealed to the Ninth Circuit, which asked the California Supreme Court to decide an issue as a matter of law pursuant to California Rules of Court, rule 8.548. The California Supreme Court stated the issue as “whether under California negligence law, liability can arise from tactical conduct and decisions employed by law enforcement preceding the use of deadly force.” The California Supreme Court responded that “liability can arise if the tactical conduct and decisions leading up to the use of deadly force was unreasonable.” (Hayes v. County of San Diego (2013) 57 Cal.4th 622.)

En Banc Opinion Changes Everything . . . Disclosures Made in the Course of Official Duties Do Not Fall Outside Protection of First Amendment.

A detective reported that another officer engaged in abusive interrogation tactics. He was told to stop sniveling and was thereafter placed on administrative leave. He filed a civil rights action under 42 U.S.C. § 1983. The trial court granted summary judgment for the defendants based on prior circuit precedent that disclosure of police misconduct by fellow police officers is a core professional duty of California police officers. Such speech is not protected by the First Amendment, and therefore cannot give rise to a section 1983 claim for violation of constitutional rights. The Ninth Circuit affirmed, finding itself bound by the prior precedent. (Dahlia v. City of Burbank (9th Cir. 2012) 689 F.3d 1094.)

The Ninth Circuit reconsidered the matter en banc. The facts were that following an armed robbery at a bakery, plaintiff, a detective in the Burbank Police Department, was assigned to assist in the investigation. He observed a police lieutenant “grab a suspect by the throat with his left hand, retrieve his handgun from its holster with his right hand, and place the barrel of the gun under the suspect’s eye, saying ‘How does it feel to have a gun in your face Mother ******?’” Later that evening, plaintiff heard “yelling and the sound of someone being hit and slapped from inside a room” where another defendant, a sergeant, was interviewing another suspect. Plaintiff reported what he observed and heard to the lieutenant he was assisting. The lieutenant told plaintiff to “stop his sniveling.” At one point, the chief of police appeared at a briefing, and upon learning not all of the robbery suspects were in custody stated: “Well then beat another one until they are all in custody.” Twice more, plaintiff met with his lieutenant and told him the beatings had to stop. Several months later, there was an internal affairs investigation, and plaintiff was warned to keep quiet. After plaintiff was interviewed three times by internal affairs investigators, plaintiff was subjected to repeated threats and intimidation. The next month, investigators from the Los Angeles Sheriff’s Department interviewed plaintiff about the bakery investigation, and plaintiff answered questions truthfully. Four days later, plaintiff was placed on administrative leave pending discipline.

The en banc court overruled the holding in Huppert v. City of Pittsburg (2009) 574 F.3d 696, which the district court had relied on in granting the motion for summary judgment. Reversing, the court stated: “Huppert erred in concluding that California broadly defines police officers’ duties as a matter of law for the purpose of First Amendment retaliation analysis.” (Dahlia v. City of Burbank (9th Cir. 2013) 735 F.3d 1060.)

Another Pathetic Situation for a Mentally Ill Person.

A social worker contacted the police about a “gravely disabled” mentally ill woman he wanted transported to a mental health facility. The woman reacted violently when police entered her home. She grabbed a knife, threatened to kill the officers, and told them she did not want to go to a mental health facility. Officers shot her five or six times, and she survived to bring a civil rights action pursuant to 42 U.S.C. § 1983. The district court granted summary judgment. The Ninth Circuit, finding the officers were initially justified in entering the woman’s home, concluded there were questions of fact regarding reasonableness and excessive force, vacated summary judgment, and remanded. (Sheehan v. City and County of San Francisco (9th Cir. 2014) 743 F.3d 1211, cert. granted.)

The U.S. Supreme Court granted certiorari, and with regard to the allegations against the officers, the court held they were entitled to qualified immunity because they did not violate any clearly established Fourth Amendment rights. (City and County of San Francisco v. Sheehan (2015) 575 U.S. 600.)

“To err is human, and to blame it on a computer is even more so,” Robert Orben.

Plaintiff was driving, and police made a “high risk” stop. They held her at gunpoint, handcuffed her, forced her to her knees, and detained her for 20 minutes. The Automatic License Plate Reader (ALPR) had made a mistake, and identified her car as a stolen vehicle. Eventually the police ran a check of her license plate and discovered the mistake. She brought a civil rights action, and the district court granted summary judgment in favor of the city, county, police department and individual officers. The Ninth Circuit concluded that a rational jury could conclude there was a Fourth Amendment violation, and reversed. (Green v. San Francisco (9th Cir. 2014) 751 F.3d 1039.)

Grant of Summary Judgment Reversed.

Police officers stopped a car for a broken tail light after being informed the driver was a methamphetamine-selling gang member. They shouted for the driver to get on the ground as he was emerging from the vehicle. According to four of the officers, he ignored their commands and instead reached for the waistband of his pants. Fearing that he was reaching for a gun, all five officers opened fire, firing about twenty shots in two to three seconds. After they ceased firing, the officers approached the body to find it tangled in a seat belt and hanging from it. No weapon was found on the body, but a nine-millimeter handgun was later recovered from the passenger seat. Reversing the grant of summary judgment in favor of the city, the Ninth Circuit stated: “Nobody likes a game of ‘he said, she said,’ but far worse is the game of ‘we said, he’s dead.’ Sadly, this is too often what we face in police shooting cases like this one.” (Cruz v. The City of Anaheim (9th Cir. 2014) 765 F.3d 1076.)       

Handcuffs Used on 6th Grader with ADHD.

An 11-year-old child with attention-deficit and hyperactivity disorder (ADHD) sat in a school playground being nonresponsive to teachers. The boy forgot to take his medications that morning and was right next to a busy thoroughfare. Police were called. The dispatcher broadcast that the school had “an out of control juvenile.” School authorities told police the boy was a “runner.” A few minutes after the police arrived, they handcuffed the boy and drove him to a relative’s place of business. A teacher asked whether handcuffs were really necessary, and an officer said it was their procedure. Following the incident, the boy experienced a host of psychological problems, including difficulty sleeping, low self-esteem, anger, irritability, and depression. The boy brought an action against the school, the city, and the police department, claiming excessive force was used. The jury found the police violated the child’s Fourth Amendment rights. Affirming the judgment, the Ninth Circuit stated, “no officer could have reasonably believed that their use of handcuffs to remove [the boy] from school grounds complied with the Fourth Amendment.”  (C.B. v. City of Sonora (9th Cir. 2014) 755 F.3d 1043.)

No Fourth Amendment Violation.

After a high-speed chase, when the suspect’s car was flush against a patrol car, the suspect continued to accelerate, and the officer fired three shots into the suspect’s car. The suspect managed to drive away, almost hitting an officer in the process. Officers fired 12 more shots, striking the suspect and his passenger, who both died. The suspect’s minor child filed an excessive force action under 43 U.S.C. § 1983. The U.S. Supreme Court reversed the lower federal court’s denial of qualified immunity to the officers, stating: “[T]he officers did not violate the Fourth Amendment. In the alternative, we conclude that the officers were entitled to qualified immunity because they violated no clearly established law.”  (Plumhoff v. Rickard (U.S. 2014) 571 U.S. 1188.)

No Civil Immunity Under Dram Shop Statutes for Brewer.

Shortly after drinking two 23.5-ounce cans of Four Loko, a college student became disoriented, agitated, and paranoid, repeatedly saying “they” were coming to get him. He located a shotgun and began shooting in his backyard. His housemates called the police. When the police arrived, the young man went out to the front porch with his gun. The police opened fire and killed him. The young man’s father sued the brewing company who made the drink for negligence and strict liability, alleging a single can contains as much alcohol as five to six 12-ounce cans of beer, and as much caffeine as four cans of Coca-Cola. The complaint further alleged that combining alcohol, a depressant, with caffeine and other stimulants creates an unreasonably dangerous product which masks the intoxicating effect of the alcohol, and increases the risk of violent and other high-risk behavior. The trial court granted the brewing company’s motion for judgment on the pleadings, agreeing that the proximate cause of death was the consumption of the intoxicating beverage, not the manufacture and sale of it. The appellate court reversed, concluding the brewing company does not enjoy the civil immunity provided by California’s dram shop statutes. (Fiorini v. City Brewing Company, LLC (2014) 231 Cal.App.4th 30.)

Interesting Costs Discussion in Excessive Force Case.

In an excessive force wrongful death action against police officers, a jury found that two of the three officers did not use excessive force and the third did use excessive force, but that force was not a substantial factor in causing the death. The court entered judgment in favor of defendants and awarded defendants costs of $66,453.02. On appeal, plaintiff, decedent’s mother, contended the trial court erred in denying her motion in limine to exclude evidence of decedent’s cocaine intoxication at the time of the incident. The Court of Appeal found no abuse of discretion.The appellate court also found the trial court’s failure to instruct on negligence regarding the officers’ tactical decisions was harmless error. With regard to other claims of inadequate jury instructions, the Court of Appeal noted the officer “had to make a series of split second decisions as to whether and how to detain [decedent] and what degree of force was required…Thus, [the officer] could not be held liable unless he acted with a purpose to cause harm.” As to the costs award, the appellate court rejected defendants’ argument that a separate appeal was necessary. The court stated: “A cost award that is incidental to a judgment may be challenged on an appeal from the judgment even though the amount of costs was filled in on the judgment after the notice of appeal was filed.” Because there was no basis for awarding attorney fees, plaintiff contended that defendants’ claim for over $40,000 in paralegal costs should have been rejected, but the appellate court stated: “[T]hese costs reflected amounts the defendants incurred for preparation and presentation of electronic evidence, including videos of deposition testimony, exhibits and excerpts from audio recordings, at trial,” and, “these costs are neither specifically allowable under Code of Civil Procedure section 1033.5, subdivision (a) nor prohibited by subdivision (b). They may be awarded provided they are ‘reasonably necessary to the conduct of the litigation rather than merely convenient or beneficial to its preparation.’ ” The court noted that jurors expect the use of technology, and the trial court did not abuse its discretion in awarding the cost of that technology. The judgment was affirmed. (Green v. County of Riverside (2015) 238 Cal.App.4th 1363.)

County’s Legal Bills Do Not Have to Be Disclosed Under Public Records Act.

In the wake of several publicized investigations into allegations that the Los Angeles County Sheriff’s Department used excessive force on inmates housed in county jail system, the ACLU of Southern California submitted a California Public Records Act (Gov. Code, § 6250; CPRA) request to petitioners for invoices specifying the amounts the county was billed by law firms in connection with nine different lawsuits “brought by inmates involving alleged jail violence.” In a writ proceeding, the Court of Appeal held that, because the invoices were confidential communications within the meaning of Evidence Code § 952, they were exempt from disclosure under the CPRA.  (Los Angeles County Board of Supervisors v. Superior Court  (2015) 235 Cal.App.4th 1154, review granted.)

The California Supreme Court reversed and remanded. (Los Angeles County Board of Supervisors v. Superior Court (2016) 2 Cal.5th 282.)

Review Report Prepared After Police Shooting Will Be Publicly Disclosed.

Police officers responded to a 911 caller who reported being robbed by two men at gunpoint. As they approached the area, a 19-year-old, African-American male began running. Two officers each fired four shots, killing the unarmed teenager. The city retained an independent consultant to review departmental policies. After the review was completed, various persons and entities requested a copy of the review report under California’s Public Records Act (Gov. Code, § 6250 et seq.). The city’s police officers association sought to enjoin disclosure of the report. The trial court ordered a heavily redacted copy of the report to be given to each requester. The association petitioned the Court of Appeal to issue a writ of mandate, contending the report was confidential and exempt from public disclosure. The appellate court denied the writ, agreed that some portions of the report were properly redacted because they contained confidential private information about police officers, and concluded that other portions should not have been redacted. (Pasadena Police Officers Association v. Superior Court (2015) 240 Cal.App.4th 268.)

Suicide by Cop?

When police with an arrest warrant informed a man he was under arrest, the man sped away, leading police on an 85 to 110 miles-per-hour chase. Twice the man telephoned the police dispatcher to demand the police stop chasing him, telling the dispatcher he was armed and would shoot. Other officers set up spikes at places they thought the man’s car would reach. However, one officer devised a plan to shoot at the man’s car to force the car to stop. Before the man reached the spikes, the officer shot at the car, but actually shot the man instead, with four bullets hitting his upper body. The man’s family sued the officer who shot and killed the man, citing the Fourth Amendment, and claiming the officer used excessive force. The U.S. Supreme Court held the shooting officer was entitled to qualified immunity, shielding the officer from liability. (Mullenix v. Luna (2015) 136 S.Ct. 305.)

“The police must obey the law while enforcing the law,” Earl Warren.

While participating in a warrantless raid of a house, sheriff’s deputies entered a backyard and opened the door to a shed. A homeless couple was living in the shed, and the homeless man held a BB gun he kept by his bed to shoot rats. As the door was opening, the homeless man was in the process of moving the BB gun so he could sit up in bed. The deputies shot the man and woman. After a bench trial, the district court held the deputies violated the Fourth Amendment without exigent circumstances. The court denied the deputies’ request for qualified immunity and awarded damages to the homeless couple. The Ninth Circuit affirmed in part and reversed in part. The appeals court found the deputies undertook a search within the meaning of the Fourth Amendment without exigency and “violated clearly established Fourth Amendment law when entering the wooden shack without a warrant.” The appeals court affirmed the judgment “insofar as it awards damages for the shooting and for the unconstitutional entry. The award of $1 nominal damages for the knock-and-announce violation is REVERSED, and we remand for that nominal damages award to be vacated.”  (Mendez v. County of Los Angeles (2016) 815 F.3d 1178.)

The U.S. Supreme Court reversed and remanded the matter, finding the Ninth Circuit’s holding was incompatible with the Supreme Court’s excessive force jurisprudence. (County of Los Angeles v. Mendez (2017) 137 S.Ct. 1539.) 

“Some parents say it is toy guns that make boys warlike. But give a boy a rubber duck and he will seize its neck like the butt of a pistol and shout ‘bang,’ ” George Will.

A 15-year-old boy brought a civil rights claim against the county and a sheriff’s deputy. Just prior to being shot, the 15-year-old was playing “cops and robbers” with friends while riding his bicycle and carrying a replica of a semiautomatic pistol. Two deputies spotted him, made a U-turn, and approached him from behind. The deputies ordered the boy to stop, which he did.  What happened next is disputed. Either the boy complied with the directive to drop the imitation gun, or he turned toward the deputies with the replica in his hand. One of the deputies fired a single shot, wounding the boy in the chest. The boy was charged with three misdemeanor counts of brandishing an imitation firearm. Pursuant to a plea bargain, the boy admitted brandishing and was placed on six months’ probationHe brought a civil suit for violation of his civil rights under 42 U.S.C. § 1983. Finding the deputy used excessive force, a jury awarded the boy $1.1 million.The court awarded him $2 million in attorney fees. The county and deputy appealed, arguing that under the holding of Heck v. Humphrey (1994) 512 U.S. 477, the judgment was inconsistent with the boy’s admission of his violation of law. The Court of Appeal agreed and reversed the judgment. The matter was remanded to give the boy an opportunity to amend his complaint to add claims that were not subject to the Heck bar. (Fetters v. County of Los Angeles (2016) 243 Cal.App.4th 825.)

“I drink too much. The last time I gave a urine sample it had an olive in it,” Rodney Dangerfield.

A woman went back to her workplace after a night of drinking with friends. She awoke in the middle of the night and used the restroom, accidently triggering the building’s burglar alarm when she did. The police responded with a dog, which they released. The dog pounced on the woman and bit her in the face. She brought suit for excessive force under 42 U.S.C. § 1983. The district court granted summary judgment for defendants, finding plaintiff did not suffer constitutional harm and that, even if she did, the city was not liable for her injuries. The Ninth Circuit reversed, stating the totality of the circumstances must be evaluated, considering whatever particular factors might apply, such as whether a warning was given before the dog was released and the availability of other tactics to effect a search. (Lowry v. City of San Diego (9th Cir. 2016) 837 F.3d 1014,)

The Ninth Circuit heard the case en banc and affirmed the grant of summary judgment by the district court. (Lowry v. City of San Diego (9th Cir. 2017) 858 F.3d 1248.)

Video of Arrest Ordered Released.

A police arrest of a minor was video recorded by a camera on a patrol car. Prosecutors filed a petition against the minor, but later withdrew it. A citizen lodged a complaint regarding the officers’ handling of the minor, and an internal affairs investigation ensued. As a result, one of the officers was charged with misdemeanor assault by a police officer without lawful necessity and making a false report. Experts hired by both the police officer and the prosecution determined the officer did not use excessive force during the arrest, and the charges against the officer were dropped. A newspaper reporter filed a request for the video under California’s Public Records Act (Gov. Code, § 6250 et seq.), and the city denied the request. Undeterred, the reporter filed another request for the video pursuant to Welfare and Institutions Code § 827, which authorizes disclosure of juvenile records under limited circumstances. The minor waived any right to confidentiality of the arrest video, but both the city and the county opposed releasing it to the reporter. The court ordered the video released after the minor’s name was redacted from it and the minor’s image blurred. The city filed the instant petition just prior to the court’s scheduled viewing of the edited video. But the city did not raise either the Public Records Act or the juvenile records issue before the Court of Appeal, instead arguing the patrol car’s dashboard video was a protected police personnel record of the police officer, requiring a Pitchess motion. The Court of Appeal rejected the protected police personnel record argument and affirmed the court’s order to release the video. (City of Eureka v. Superior Court (2016) 1 Cal.App.5th 755.)

Jury Verdict Reversed After Defendants “Overstepped the Judge’s Ruling” in Motions in Limine.

In a civil rights trial involving police shooting and killing a man, plaintiff’s motion in limine to exclude decedent’s gang affiliation was denied after the court found the issue was relevant to damages, but the court did exclude specific photographs and other evidence. Plaintiff then moved to bifurcate liability from damages, and the motion was denied. After deliberating for fewer than two hours, a jury found in favor of the police. The man’s estate appealed. Reversing, the Ninth Circuit noted that “during trial—and over plaintiff’s repeated objections—the district court’s evidentiary rulings strayed from its pretrial rulings. As a result, the jury was exposed to a copious amount of inflammatory and prejudicial evidence with little (if any) relevance.” The appeals court further stated: “To avoid the runaway case—like this one, where the Defendants and their witnesses repeatedly overstepped the judge’s rulings—courts should use bifurcation to corral lawyers and witnesses, so the jury hears only evidence relevant to the issues at hand.” (Estate of Manuel Diaz v. City of Anaheim (9th Cir. 2016) 840 F.3d 592.)

No Qualified Immunity for Police Officer in Excessive Force Case.

A man reportedly hit his girlfriend and took her cell phone. The police dispatcher informed the patrol officer that the man was not known to carry a gun. The officer pulled up next to the man as he walked down the street. The man had one hand exposed and the other in a pocket. The officer ordered him to remove his hand from his pocket, and one second later, the man started to comply, but it was too late as the officer shot and killed him. The officer later explained he believed the man had a gun. No gun was found. The man’s family brought an action against the officer and the city under 42 U.S.C. § 1983 for excessive force. The district court denied defendants’ motion for summary judgment. The Ninth Circuit affirmed, stating that based on a totality of the circumstances the officer’s fatal shooting of the man violated the Fourth Amendment, and concluding the officer was not entitled to qualified immunity because he violated clearly established law. (A.K.H. v. City of Tustin (9th Cir. 2016) 837 F.3d 1005.)

Officers Shot Mentally Ill Woman with Knife.

After receiving a report of a person hacking at a tree with a knife, three police officers responded to the scene. Police yelled at the woman to drop the knife as the woman started walking toward another woman. The woman carrying the knife, who was on medication for a bipolar disorder, did not comply and an officer shot her four times. The injured woman sued the police for excessive force. A witness said she did not think the woman understood what was happening when the police yelled at her. The trial judge granted summary judgment for the police. The Ninth Circuit reversed the grant of summary judgment, stating: “The application of qualified immunity in this case will depend upon the facts as determined by a jury. The facts, viewed in Mrs. Hughes favor, present the police shooting a woman who was committing no crime and holding a kitchen knife. . . . a rational jury. . .could find that she had a constitutional right to walk down her driveway holding a knife without being shot.” (Hughes v. Kisela (9th Cir., Jun. 27, 2017) 862 F.3d 775, cert. granted.)

The U.S. Supreme Court granted certiorari and held the officer was entitled to qualified immunity because the use of force did not violate clearly established law. (Kisela v. Hughes (2018) 138 S.Ct. 1148.)

Summary Adjudication Reversed in Civil Rights Case.

Police officers initiated contact with plaintiff for being in a city park after it closed and for riding a bicycle in the dark without a headlight. Plaintiff fled. The officers pursued, detained, and searched him, finding a plastic baggie containing rock cocaine. Plaintiff was charged with possessing a controlled substance, using a weapon in a fight, and resisting an officer. The jury was unable to reach a verdict on the drug possession charge and acquitted plaintiff on the other charges. Plaintiff, who is African American, then sued the city and the officers under the Tom Bane Civil Rights Act (Civ. Code, § 52.1), which authorizes civil actions by persons whose federal or state rights have been interfered with by “threat, intimidation, or coercion.” He also sued under the Ralph Civil Rights Act of 1974 (Civ. Code, § 51.7), which authorizes civil actions by individuals subjected to violence or intimidation because of their membership in a protected class. The trial court granted summary adjudication on both claims, and defendant sought extraordinary relief. The Court of Appeal denied relief on the Ralph Act claim, but issued a writ of mandate on plaintiff’s Bane Act claim, stating: “Even assuming the officers had probable cause to arrest (plaintiff), the complained-of conduct asserted here—multiple consensual, roadside, physical body cavity searches—is necessarily intentional conduct that is separate and independent from a lawful arrest for being in a park after it closed, for riding a bicycle in the dark without a headlight, or for resisting a peace officer.” (Simmons v. Superior Court (2016) 7 Cal.App.5th 1113.)

Civil Rights Action for Excessive Force.

Officers responded to a burglar alarm in a commercial building and found an office door open. They announced themselves as police officers and said to come out or a police dog would be sent in. No one responded. They repeated the warning, and again no one responded. They released the dog. Officers followed. Someone was lying on a couch. The dog leapt onto the couch and bit the person on the lip. Within seconds, the dog was called off. The person on the couch was plaintiff, a woman who had returned to the office after a night out drinking with her friends. She had accidently tripped the burglar alarm before falling asleep on the couch. Plaintiff filed a civil rights action under 42 U.S.C. § 1983, alleging that the policy of training police dogs to bite and hold individuals resulted in a violation of her Fourth Amendment rights. The district court granted the city’s motion for summary judgment. Affirming, the Ninth Circuit found there were no genuine disputes of material fact, and “the degree of force used was commensurate with the City’s interest in the use of that force.” (Lowry v. City of San Diego (9th Cir. 2017) 837 F.3d 1014.)

No Immunity for Off-duty Police Officer Providing Hotel Security.

An off-duty police officer, wearing his police uniform with his department’s permission, was working as a special duty officer as part of a hotel’s security for a New Year’s Eve event. The hotel paid the off-duty officer for his work. The off-duty officer helped hotel security detain plaintiff for the purpose of issuing a trespass warning when plaintiff stepped over a rope without a required wristband. At some point, security guards tackled plaintiff and allegedly assaulted him. Plaintiff lost consciousness, suffered a vocal cord injury, and sustained bruising. Plaintiff brought an action for various torts and violation of 42 U.S.C. § 1983. Plaintiff did not argue that the off-duty officer was involved with the alleged assault, but that the off-duty officer failed to intercede. The district court found the off-duty officer was entitled to qualified immunity . The Ninth Circuit vacated and remanded, holding the off-duty officer was not serving a public, governmental function while being paid to provide private security, and there was a triable issue as to whether the off-duty officer violated plaintiff’s right to liberty by helping detain him and then failing to protect him. (Bracken v. Okura (9th Cir. 2017) 869 F.3d 771.)

Monetary Award For Excessive Force by Police Reversed.

A college student at U.C. Santa Barbara refused a police officer’s order to drop water balloons and was detained. The student tried to run away and struggled with officers. A police officer used a leg sweep maneuver to take him down and arrest him. The incident occurred when hundreds to thousands of intoxicated college students congregated on a street near the university campus. There was loud music playing, and students were yelling, screaming, and running around. The student sued the officer and the city under 42 U.S.C. § 1983 for violation of his constitutional rights. A federal jury found the police officer violated the student’s Fourth Amendment constitutional right to be free from excessive force and awarded him $120,000. The Ninth Circuit reversed the verdict and vacated the damages award because the officer was entitled to qualified immunity. The appeals court explained the police officer was entitled to use some degree of force. (Shafer v. County of Santa Barbara (9th Cir. 2017) 868 F.3d 1110.)

Unreasonable Use of Force.

Shortly after a man was discharged from a psychiatric hospital, he began acting strangely, waiving a knife. The police were called. A police officer arrived at the scene with her gun drawn and in a shooting posture. She ordered the man to drop the knife, but he did not comply. Instead, the man turned his back on the officer and started making motions with the knife towards his own stomach, as if he were stabbing himself. The officer immediately shot the man in the back, twice in rapid succession. The man was rendered a paraplegic. A jury found the officer used unreasonable force and interfered with the man’s exercise of his constitutional rights, awarding him $11.3 million. The court denied the officer’s motion for new trial based upon lack of evidence and faulty jury instructions, and the Ninth Circuit affirmed. (Lam v. City of San Jose (9th Cir. 2017) 869 F.3d 1077.)

Use of Force Policy.

The City of Seattle worked with a court-appointed monitor to create a use of force policy for its police department after the United States brought a civil action against the city alleging its police engaged in a pattern or practice of excessive use of force. In 2013, a federal judge approved the policy, which provided that “officers shall only use objectively reasonable force, proportional in the threat or urgency of the situation.” A group of 125 Seattle police officers filed an action pursuant to 42 U.S.C. § 1983 challenging the policy’s constitutionality, contending it restricted the officers’ right to defend themselves. The federal district court dismissed the action. Affirming, the Ninth Circuit stated: “The UF Policy does not impose a substantial burden on the Second Amendment right to use a firearm for the core lawful purpose of self-defense.” (Mahoney v. Sessions (9th Cir. 2017) 871 F.3d 873.)

Don’t Remove the Orange Tip From a Toy Gun.

Two police officers, one training the other, were driving in a marked patrol car when they spotted someone carrying an AK-47. He was walking ahead of the police, so they only saw him from behind. He was wearing a hooded sweatshirt and appeared to be a teenager. He held the toy gun, which had the orange tip removed, by the pistol grip, muzzle pointed to the ground, and was walking away from the officers, but did not appear to be trying to evade them. The police stopped. The officer in the passenger seat pulled out his gun, pointed it toward the boy, and yelled “drop the gun.” The teenager, who was 13 years old, was about 65 feet away and turned around. The officer fired eight shots in rapid succession, seven of which hit the boy. The boy’s estate filed an action against the county for violation of civil rights under 42 U.S.C. § 1983. The county moved for summary judgment based on qualified immunity. The district court denied the motion. The Ninth Circuit affirmed the ruling, stating that whether the officer was entitled to qualified immunity depended upon facts that a jury must decide. (Estate of Andy Lopez v. County of Sonoma (9th Cir. 2017) 871 F.3d 998.)

Police Shooting.

Police chased a man driving a stolen car for 70 minutes before they disabled the vehicle. The suspect exited the vehicle and stood with one hand behind his back. The police were ordered to use nonlethal force and were told the suspect was holding his wallet behind his back, and not a gun . They tased the suspect, who then moved erratically and held his hands above his head. One of the police officers, who said he did not hear the order or the information broadcast, shot the suspect in the back and killed him. The decedent’s estate sued under 42 U.S.C. § 1983. The police brought a motion for summary judgment based on qualified immunity. The district court granted the motion. The Ninth Circuit reversed and remanded the matter for a jury to determine whether the use of deadly force was lawful. (Longoria v. Pinal County (9th Cir. 2017) 873 F.3d 699.)

Racial and National Origin Discrimination Award.

Three police officers of Latino descent sued a city and its police department for racial and national origin discrimination and retaliation. One of the officers was denied numerous special assignments. Other officers called him names at times, including “Dirty Sanchez,” “Jorge,” and “Silver” or “Silverback,” and he was told that the gray streak in his hair was his “INS mark.”  He filed two administrative complaints with the Department of Fair Employment and Housing (DFEH). A few months later, the police chief removed him from the list of available field training officers. A second officer, who had graduated first in his class and was “rookie of the year,” was passed over for a detective position, which was given to a white officer he had trained. Shortly after the second officer filed an administrative complaint with DFEH, he was investigated by internal affairs for being away from his duties while he was testifying in court. The third officer, a member of the Marine Corps Reserve, was passed over for special assignments that were given to white officers who were allegedly less qualified. He alleged the police chief had accused him of not testifying truthfully about a use of force incident. The officer charged with excessive force was cleared, but the third officer was not exonerated for supposedly not being truthful when he testified there was no excessive force. The jury awarded the three officers a total of $3,341,000.00 in general and punitive damages, and the court awarded $3,285,673.00 in attorney fees, $40,028.49 in expert fees, and $18,684.12 in costs. In a detailed ruling, including a chart setting forth the damages awarded to each officer against the various defendants, the Ninth Circuit largely upheld the judgment, but remanded the matter on particular issues.  (Flores, Reyes & Perez v. City of Westminster (9th Cir. 2017) 873 F.3d 739.)

Excessive Force.

The jury found in favor of plaintiff and against a police officer on an excessive force claim, but awarded her zero damages. After the parties stipulated to $1 in damages, the district court awarded plaintiff $165,405 in prevailing party attorney fees. On appeal, plaintiff contended the trial court erred in submitting the issue of whether a right is clearly established to a jury. The Ninth Circuit held any error was harmless because plaintiff had a clearly established right not to have pepper spray used against her for purposes of retaliation or intimidation, and intentionally pepper spraying plaintiff for no legitimate law enforcement reason would likely constitute excessive force. (Morales v. Fry (9th Cir. 2017) 873 F.3d 817.)

The Bane Act.

Plaintiff was a police officer trainee. While off duty and in street clothes, he went for a run one morning in a city park, stopping for a brief rest at a place known as Hippie Hill. Two uniformed patrol officers in the area spotted him, thought he looked “worried,” and grew suspicious because the bushes on Hippie Hill are known for illicit drug activity. As the patrolmen began to approach plaintiff, but before they reached him or said anything to him, he resumed his run. The officers gave chase, joined in pursuit by two other officers who responded to a call for backup. One of the officers, with his gun drawn, eventually caught up to him. Plaintiff had no idea he was being chased or that the officers wished to speak with him. He heard a shout from behind, “I will shoot you,” and looked over his shoulder to see a dark figure pointing a gun at him. He darted away, ultimately finding what he thought was refuge with a police officer awaiting his arrival. He was arrested at gun-point and searched, taken in handcuffs to a stationhouse for interrogation, and eventually to a hospital for a drug test, which was negative. No evidence of involvement with drugs turned up, and after nearly six hours in custody, he was released. As he was leaving the stationhouse, he was given a criminal citation for evading arrest in violation of Penal Code § 148. He was never prosecuted, but he lost his job as a result of the arrest and citation. To recover for the damage done to him, he sued the four arresting officers, the chief of police, and the city and county under Civil Code § 52.1, the Bane Act, which provides protection from threats, intimidation, or interference with one’s constitutional rights. A jury determined he was arrested without probable cause, thereby establishing liability for false arrest. The jury returned a verdict for plaintiff, awarding total damages of $575,231. Following trial, the court added $2,027,612.75 in attorney fees and costs. Affirming, the Court of Appeal noted the nub of the action was that plaintiff was kept in jail and stated “a rational jury could have concluded not only that [the police officers] were unconcerned from the outset with whether there was legal cause to detain or arrest him, but that when they realized their error, they doubled-down on it, knowing they were inflicting grievous injury on their prisoner.”  (Cornell v. City and County of San Francisco (2017) 17 Cal.App.5th 766.)

Previously we reported:
Review Report Prepared After Police Shooting Will Be Publicly Disclosed.

Police officers responded to a 911 caller who reported being robbed by two men at gunpoint. As they approached the area, a 19-year-old African-American male began running. Two officers each fired four shots, killing the unarmed teenager. The city retained an independent consultant to review departmental policies. After the review was completed, various persons and entities requested a copy of the review report under California’s Public Records Act (Gov. Code, § 6250 et seq.). The city’s police officer’s association sought to enjoin disclosure of the report. The trial court ordered a heavily redacted copy of the report to be given to each requester. The police officers’ association petitioned the Court of Appeal to issue a writ of mandate, contending the report was confidential and exempt from public disclosure. The appellate court denied the petition, agreeing that some portions of the report were properly redacted because it contained confidential private information about police officers, but concluding that other portions should not have been redacted. (Pasadena Police Officers Assn. v. Superior Court (2015) 240 Cal.App.4th 268)

The latest:

On remand, the trial court ordered some of the redacted portions of the report to be released and awarded the newspaper attorney fees under the Public Records Act (Gov. Code, § 6259, subd. (d)). The Court of Appeal upheld the fee award under the act, but ordered the trial court to also award fees to the newspaper under the private attorney general statute (Code Civ. Proc., § 1021.5) against two police officers and the police officers association. (Pasadena Police Officers Assn. v. City of Pasadena (2018) 22 Cal.App.5th 147)

Police Called to Scene of Man Acting Erratically.

Police responded to a call about a man behaving erratically and brandishing a pair of scissors at a 7-Eleven. Eight police officers were at the scene for about 15 minutes. They had two police cars parked in a V shape and took cover behind the cars and their open doors. The officers were about 30 feet away from the front door. The shooting happened while the police were deciding how to handle the situation, and the man unexpectedly charged the doorway of the store with what appeared to be scissors raised above his head. The man ignored two orders to drop his weapon. The officer in charge ordered an officer to shoot him; that officer shot the man with a less than lethal weapon. But a few seconds later, two other officers shot the man with their AR-15 rifles, killing him. Later drug tests revealed the dead man’s blood was positive for amphetamine and methamphetamine and that he was schizophrenic. The decedent’s parents sued the city and individual police officers for various causes of action, including for using excessive force and failure to accommodate under the Americans With Disabilities Act. The district court granted the defendants’ motion for summary judgment and dismissed the case. Affirming in part and reversing in part, the Ninth Circuit noted that a reasonable jury could conclude that the man was not an immediate threat to the officer, that the officers had less intrusive force available to them, and that the officers had the time and opportunity to assess the situation and potentially employ accommodations such as de-escalation, communication, and/or specialized help. (Vos v. City of Newport Beach (9th Cir. 2018) 892 F.3d 1024.)

Adopted Child Has No Standing to Bring Wrongful Death Suit After his Biological Mother Was Killed.

A complaint for violation of civil rights and violation of the Americans with Disabilities Act alleged a woman called 911, stating that she had taken pills, drank heavily, and would use a baseball bat to provoke the police to shoot her. Officers were dispatched to her residence in response. One of the officers had carried out an involuntary mental health detention on the woman eight days prior. When another officer obtained a key to her apartment from a building manager and attempted to enter, the woman emerged holding a baseball bat. The officers shot the woman, and she died the following day from the resulting injuries. Plaintiff was her biological son and only known living relative. He was adopted by other parents as an infant, but alleged that he maintained “a ‘close relationship with [the decedent] during part of his childhood and throughout his adult life.’ ” The district court dismissed the case, finding that plaintiff had no legally cognizable interest in his relationship with his biological mother because he was adopted by other parents as an infant. The Ninth Circuit affirmed, finding that since plaintiff was not a survivor of his biological mother under California law, he had no standing to bring the action. (Wheeler v. City of Santa Clara (9th Cir. 2018) 894 F.3d 1046.)

Even Brats Have Civil Rights.

A group of seventh grade girls were handcuffed, arrested, and transported in police vehicles from their middle school campus to the police station. An assistant principal had asked a school resource officer, a sheriff’s deputy, to counsel a group of girls who had been involved in ongoing incidents of bullying and fighting. The group included both aggressors and victims. Speaking with the group, the deputy initially intended to verify the information the school had given him and to mediate the conflict. Within minutes, however, the deputy concluded that the girls were being unresponsive and disrespectful. He arrested the girls, explaining to them that he was not “playing around” and taking them to jail was the easiest way to “prove a point” and “make [them] mature a lot faster.” Three of the girls sued the arresting officers and the county for unlawful arrest in violation of state laws and the Fourth Amendment. The district court denied the defendants qualified immunity and granted summary judgment in favor of the students. Affirming, the Ninth Circuit stated: “Lacking both justification and probable cause for their arrests, Defendants cannot avoid liability for false arrest under state law.” (Scott v. County of San Bernardino (9th Cir. 2018) 903 F.3d 943.)

The Modern Family in the Context of a Wrongful Death Action.

A man died after an incident with police, leaving his partner, two biological children, and his partner’s child, A.G., whom the decedent raised and held out as his own child. In a wrongful death action, the trial court held A.G. lacked standing to sue and granted summary judgment against him. On appeal, A.G. claimed decedent was his presumed father, while defendants argued that decedent could not be A.G.’s presumed father because decedent was not A.G.’s biological parent. Reversing, the Court of Appeal found that a nonbiological parent can be a presumed parent. (A.G. v. County of Los Angeles (2018) 25 Cal.App.5th 373.)

Police Officer Shot a Man in the Back.

Police received a report that a man was approaching a shopping center armed with a concealed handgun. A police officer, who suspected a robbery was about to occur since the shopping center had experienced two recent robberies, approached the man to investigate. The man fled, and the police officer fatally shot him in the back. In the subsequent civil rights action, the decedent’s family alleged that the police officer violated the decedent’s Fourth and Fourteenth Amendment rights. The district court denied the police officer’s summary judgment motion based on qualified immunity. The Ninth Circuit dismissed the appeal as to the Fourteenth Amendment claim, and reversed as to the Fourth Amendment claim, stating with regard to the initial stop that the district court erred because the police officer did not violate any clearly established law. (Foster v. City of Indio (9th Cir. 2018) 908 F.3d 1204.)

Qualified Immunity.

Police were called to a scene of domestic violence. No one would answer the phone in the apartment or open the door. At some point, a man came out the front door. The officer standing at the front door told him not to close the door, but he closed it anyway and brushed by the officer. The officer “took him down,” and he was arrested for resisting an officer. He sued two officers for excessive force, even though only one officer was at the door he exited. The district court granted summary judgment to both officers. As to the officer who used force at the front door, the district court reasoned that the law did not clearly establish that the officer could not take down an arrestee in these circumstances. The Ninth Circuit reversed, but the U.S. Supreme Court reversed the Ninth Circuit.  As to the officer who used force, the Supreme Court concluded that the Ninth Circuit failed to properly analyze whether clearly established law barred that officer from stopping and taking down the plaintiff . (City of Escondido v. Emmons (9th Cir. 2019) 921 F.3d 1172.)

Running Away from Police, by Itself, Does Not Amount to Reasonable Suspicion of Criminal Activity.

Police received an anonymous tip that a black man was carrying a gun—which is not a criminal offense in the State of Washington. A patrol unit spotted the man and activated the patrol car’s lights, but did not order him to stop. He reacted by running for about a block before the officers stopped him at gunpoint. They placed him in handcuffs and found a firearm in his waistband. A further search revealed drugs, cash, and other items. The man moved to suppress evidence, and a federal trial court denied the motion. The Ninth Circuit noted that almost 20 years ago in Illinois v. Wardlow (2000) 528 U.S. 119 the U.S. Supreme Court stated: “Among some citizens, particularly minorities and those residing in high crime areas, there is also the possibility that the fleeing person is entirely innocent, but, with or without justification, believes that contact with the police can itself be dangerous, apart from any criminal activity associated with the officer’s sudden presence.” Reversing, the appeals court held: “In the end, the totality of the circumstances here does not add up to enough: no reliable tip, no reasonable inference of criminal behavior, no police initiative to investigate a particular crime in an identified high crime area, and flight without any previous attempt to talk to the suspect. We conclude that the Metro officers did not have reasonable suspicion of criminal activity when they stopped and frisked Brown.” (United States v. Brown (9th Cir. 2019) 925 F.3d 1150.)

Summary Judgment Reversed in Police Shooting Case.

Shortly after midnight, a bookstore employee told a 9-1-1 dispatcher that a man threatened him with a knife. Defendant police officer went to the scene where he encountered a man walking at a steady pace in the officer’s direction. Seconds later, the police officer fatally shot the man. Decedent’s family brought an action under the Fourth and Fourteenth Amendments and various state laws. The district court granted defendant’s motion for summary judgment and dismissed the action against the officer. Reversing the grant of summary judgment on the Fourth Amendment and state law claims, the Ninth Circuit held there was a “genuine dispute whether [decedent] posed a significant threat to [the officer].” (Nehad v. Browder (9th Cir. 2019) 929 F.3d 1125.)

Civil Rights Case Against Police Officer.

Four teenagers were rapping in an alley before school at 7:30 a.m. They were dancing in a circle. One of them held a plastic replica gun with a bright orange tip. Just as they turned off the music, preparing to go to school, an unmarked police patrol car drove by. Neither officer was in uniform. The officer in the passenger seat jumped out of the car. It is disputed whether the officer identified himself. At the time the officer was running into the alleyway shouting, “gun, gun, gun,” one of the teenagers had started changing his shirt and another was spraying on cologne. The officer shot three times; one of the teenagers was shot in the back. Two of the teens brought a civil rights action. The district court denied qualified immunity to the police officer, and that officer appealed. The Ninth Circuit affirmed in part and reversed in part, finding the officer was entitled to immunity for plaintiffs’ Fourteenth Amendment claims, but not for the Fourth Amendment claims. (Nicholson v. City of Los Angeles (9th Cir. 2019) 935 F.3d 685.)

“There can be as much value in the blink of an eye as in months of rational analysis,” Malcolm Gladwell.

Plaintiff sued the city and one of its police officers under 42 U.S.C. § 1983 and state law for the officer’s fatal shooting of plaintiff’s schizophrenic son at a gas station. The officer was responding to calls reporting that decedent “had poured gasoline on a woman and tried to light her on fire.” After a three-day trial, the jury returned a special verdict finding that the police officer did not use excessive force or act negligently. Plaintiff appealed, challenging the exclusion of her testimony about decedent’s past behavior. Reversing, the Ninth Circuit held the lower court abused its discretion in excluding the evidence, noting the excluded evidence was relevant to whether decedent would have appeared to be mentally ill, and thus to whether the police officer knew or should have known that decedent was mentally ill. (Crawford v. City of Bakersfield (9th Cir. 2019) 944 F.3d 1070.)

Public Records of Police Use of Force.

The Legislature recently amended Penal Code § 832.7 to recognize the right of the public to know about incidents involving shootings by police officers or the use of force by an officer that results in death or great bodily injury, as well as sustained findings of sexual assault or dishonesty by an officer. The California Attorney General and the California Department of Justice filed a petition for a writ of mandate challenging the trial court’s order to disclose obligations under the statute. Denying relief, the Court of Appeal stated: “We conclude, as a matter of statutory interpretation, that section 832.7 generally requires disclosure of all responsive records in the possession of the Department, regardless whether the records pertain to officers employed by the Department or by another public agency and regardless whether the Department or another public agency created the records.” (Becerra v. Superior Court (2020) 44 Cal.App.5th 897.)

Abuse of Discretion to Allow Intervention, But Only if No Statutory Fees Would Be Sought.

Eight police officer associations filed a petition for writ of mandate seeking to prevent their respective agencies from disclosing certain records of police misconduct or use of force. Several media organizations and civil rights groups moved to intervene pursuant to Code of Civil Procedure § 387. The trial court conditioned their participation on the interveners striking their requests to recover statutory attorney fees. On appeal, the interveners challenged the condition placed on their intervention. Reversing, the Court of Appeal stated: “We conclude that although a trial court may place reasonable limits even as to intervention of right, the condition imposed here was unreasonable and amounted to an abuse of discretion.” (Carlsbad Police Officers Association v. City of Carlsbad (2020) 49 Cal.App.5th 135.)

Plaintiff May Pursue Civil Action for Damages Against the Police, Despite Being Convicted of Disturbing the Peace.

A man was convicted of disturbing the peace after he was arrested at LAX while waiting to transport a customer in his limousine. Paramedics took him to the hospital after the officer allegedly put his knee on the man’s back and hit him while handcuffing him. The issue was whether a plaintiff can sue in civil court for unreasonable use of force by the police after being convicted in criminal court. The Court of Appeal found the man can pursue his civil action even though he was convicted, explaining: “How you act and how police respond are two different issues. The criminal case was about the former. This civil case is about the latter. That is, fighting or challenging someone to fight does not entitle the other to respond with excessive force.” (Kon v. City of Los Angeles (2020) 49 Cal.App.5th 858.)

High Speed Chase Ends in Death.

After leading police officers on a high-speed chase, the driver of the fleeing van turned down a dead-end street. He stopped at the end of the road, and the police officers parked and exited their cruisers behind him. The driver turned the van around, pointing it generally toward the officers. As the van accelerated in an arc toward and eventually between the officers, they commanded him to stop and fired on him. The driver crashed into a police cruiser, pushing that cruiser into one of the officers, and the officers continued to fire. The driver sustained multiple gunshot wounds and was pronounced dead at the scene. Decedent’s parents sued the city and the officers, alleging the officers used excessive force. Granting summary judgment for the city and the five police officers, the district court found that the officers’ use of deadly force was reasonable. Affirming, the Ninth Circuit stated: “We hold that the officers’ use of deadly force was objectively reasonable in this dynamic and urgent situation, where officers were faced with the immediate threat of significant physical harm.” (Monzon v. City of Murrieta (9th Cir., July 22, 2020) 2020 WL 4197746.)

Police Code of Silence.

Based on her failure to report another deputy’s use of force on a jail inmate and her failure to seek medical assistance for the inmate, a deputy sheriff was discharged. During an investigation of the incident, the fired deputy explained that she did not report it out of fear of being “labeled as a rat” by her fellow deputies. The trial court granted the fired deputy’s petition for writ of mandate and directed the county civil service commission to set aside the discharge. Reversing, the Court of Appeal found error in the trial court’s substituting its own discretion for that of the sheriff’s department. (Pasos v. Los Angeles County Civil Service Commission (Cal. App. 2nd Dist., Div. 7, July 27, 2020) 2020 WL 4281984.)

Previously we reported:
Proposition 51 Redux.

In an excessive force/wrongful death case, the jury awarded plaintiff $8 million in noneconomic damages. The jury assessed 40 percent fault to the decedent for his own death and 20 percent each to the deputies. One of those deputies was found to have intentionally harmed the decedent. The court entered judgment for the entire $8 million against that deputy, citing Thomas v. Duggins Construction Co., Inc. (2006) 139 Cal.App.4th 1105, which held Civil Code § 1431.2 does not apply to an intentional tortfeasor’s liability in a personal injury case. Reversing, the Court of Appeal stated: “Because we conclude Thomas conflicts with the plain text of section 1431.2, we decline to follow its holding.” The matter was remanded to the trial court with directions to enter a new judgment allocating noneconomic damages to each defendant in proportion to the defendant’s percentage of fault. (B.B. v. County of Los Angeles (2018) 25 Cal.App.5th 115, review granted.)

The latest:

A jury found that a deputy had committed battery by using unreasonable force against the African American decedent. The trial court entered a judgment against the deputy for the entire amount of the noneconomic damages the jury awarded—$8 million—even though the jury also found that only 20 percent of the responsibility for the man’s death was “attributable to” the deputy’s actions. The Court of Appeal reduced the judgment against the deputy to 20 percent of the award. The California Supreme Court agreed with the trial court and disagreed with the appellate court, holding that Civil Code § 1431.2 does not authorize a reduction of liability for noneconomic damages for intentional tortfeasors. (B.B. v. County of Los Angeles (Cal., Aug. 10, 2020) 2020 WL 4578991.) 

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