League of California Cities City Attorneys Department Annual Conference September 2009
MUNICIPAL TORT AND CIVIL RIGHTS LITIGATION UPDATE
Eugene P. Gordon Office of City Attorney 1200 Third Avenue, Ste. 1100 San Diego, CA 92101 Phone: (619) 533-5821 Fax: (619) 533-5856 [email protected]
MUNICIPAL TORT AND CIVIL RIGHTS LITIGATION UPDATE
TABLE OF CONTENTS
PAGE 1. Hernandez v. City of Pomona, 46 Cal. 4th 501 (2009).
A JURY FINDING IN A 1983 ACTION IN FEDERAL COURT THAT A POLICE OFFICERS USE OF DEADLY FORCE WAS OBJECTIVELY REASONABLE COLLATERALLY ESTOPS PLAINTIFF FROM PURSUING A NEGLIGENCE ACTION FOR WRONGFUL DEATH IN STATE COURT, EVEN ON A THEORY THAT THE OFFICERS PRESHOOTING CONDUCT WAS ALLEGEDLY NEGLIGENT .............................................................. 1
2. Brown v. Ransweiler, 171 Cal. App. 4th 516 (2009). A POLICE OFFICER WHOSE SHOOTING ACTIONS WERE OBJECTIVELY REASONABLE WAS NOT LIABLE TO AN INNOCENT BYSTANDER FOR CIVIL BATTERY OR NEGLIGENCE FOR INJURIES CAUSED BY A BULLET FRAGMENT THAT STRUCK THE BYSTANDER ..................................... 3
3. Tennison v. City and County of San Francisco, 570 F.3d 1078 (9th Cir. 2009).
POLICE OFFICERS MAY BE FOUND LIABLE UNDER 1983 FOR WITHHOLDING MATERIAL, EXCULPATORY EVIDENCE FROM PROSECUTORS IF THEY ACTED WITH DELIBERATE INDIFFERENCE TO, OR RECKLESS DISREGARD FOR, THE RIGHTS OF AN ACCUSED, OR FOR THE TRUTH IN WITHHOLDING THE EVIDENCE ............................................................. 6
4. Friedman v. Boucher, 568 F.3d 1119 (9th Cir. 2009). THE WARRANTLESS, SUSPICIONLESS, FORCIBLE EXTRACTION OF A PRETRIAL DETAINEES DNA VIOLATES THE FOURTH AMENDMENT........................................ 7
5. County of Butte v. Superior Court (Williams), 175 Cal. App. 4th 729 (2009). A QUALIFIED MEDICAL MARIJUANA PATIENT MAY MAINTAIN AN ACTION FOR DAMAGES AGAINST THE COUNTY FOR THE ALLEGED UNLAWFUL SEIZURE OF MEDICIAL MARIJUANA PLANTS BY A SHERIFFS DEPUTY ........................................................ 9
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6. Hopkins v. Bonvicino, 2009 WL 2052987 (9th Cir. 2009). A FORCIBLE, WARRANTLESS ENTRY INTO A HOME IN THE ABSENCE OF AN EMERGENCY OR EXIGENT CIRCUMSTANCES VIOLATES THE FOURTH AMENDMENT ........................................................................... 11
7. Sanchez v. Canales, 2009 Daily Journal D.A.R. 11202 (9th Cir., July 30, 2009).
POLICE OFFICERS MAY LAWFULLY DETAIN THE OCCUPANTS OF A HOME DURING A PAROLE OR PROBATION COMPLIANCE SEARCH............................... 14
8. Guzman v. County of Monterey, 46 Cal.4th 887 (2009). PUBLIC ENTITIES RESPONSIBLE FOR OVERSEEING THE PUBLIC WATER SYSTEMS IN THEIR JURISDICTION DO NOT HAVE AN IMPLIED MANDATORY DUTY TO INSTRUCT THE OPERATORS OF THE SYSTEMS TO NOTIFY CONSUMERS OF ANY WATER CONTAMINATION.................. 15
9. Sparks v. Kern County Board of Supervisors, 173 Cal. App. 4th 794 (2009). THE GOVERNMENT CLAIMS ACT APPLIES TO A MANDAMUS ACTION FILED BY A PUBLIC EMPLOYEE AGAINST A PUBLIC ENTITY TO RECOVER COSTS INCURRED IN DEFENDING AN ACTION BROUGHT BY THE ENTITY ....................................................................................... 17
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A JURY FINDING IN A 1983 ACTION IN FEDERAL COURT THAT A POLICE OFFICERS USE OF DEADLY FORCE WAS OBJECTIVELY REASONABLE COLLATERALLY ESTOPS PLAINTIFF FROM PURSUING A NEGLIGENCE ACTION FOR WRONGFUL DEATH IN STATE COURT, EVEN ON A THEORY THAT THE OFFICERS PRESHOOTING CONDUCT WAS ALLEGEDLY NEGLIGENT
1. Hernandez v. City of Pomona, 46 Cal. 4th 501 (2009). FACTS AND PROCEDURAL BACKGROUND
A police officer on patrol in a marked police vehicle in a neighborhood before dawn observed a Ford Thunderbird approach from the opposite direction with its headlights turned off. The vehicle pulled abruptly over to the curb and stopped with the engine running. The officer turned on his overhead lights and pulled his vehicle to within about ten feet of the stopped Thunderbird, facing it. He saw two individuals inside the Thunderbird and ordered them to exit. The driver complied, but the passenger, George Hernandez, did not. Instead, Hernandez slid into the vacant drivers seat and drove away with the headlights turned off. The officer undertook a pursuit of Hernandez. Additional officers, including a K-9 unit, joined the pursuit in other police vehicles. Hernandez led the officers on a high speed chase through city streets. The pursuit lasted about 18 minutes, and ended when Hernandez lost control of the Thunderbird as he attempted a high-speed left turn. The car careened into a news stand and a bus stop and came to rest in the middle of the street. After crashing, Hernandez got out of his car and started running away. The officers pursued Hernandez on foot, and eventually, Hernandez slowed down and stopped. There was conflicting evidence on whether Hernandez yelled that he had or did not have a gun, but one of the officers reached for his weapon only to discover that he had lost it. Hernandez started running away again followed by the officers. The officer who had lost his weapon rejoined the pursuit after finding his weapon in the street. Hernandez ignored orders to stop and kept running. A police dog was deployed, and as Hernandez fled around the corner of a building, the canine caught up to Hernandez, struck him on the shoulder, and spun him around. According to one of the officers, as the canine was striking Hernandez, Hernandez reached toward his waistband, and yelled either: I got a gun or Gun. In response, the officer fired his weapon at Hernandez. As the other officers rounded the corner of the building, they heard shots and assumed that the officer was engaged in a gun battle with Hernandez. The officers fired 37 shots in all, hitting Hernandez 22 times and killing him. Hernandez was unarmed. Hernandezs parents and his seven minor children filed a 1983 action in federal district court against the officers and the City, alleging in part that the officers shot and killed Hernandez without reasonable cause, and that the shooting was unreasonable and entirely unjustified by Hernandezs actions in violation of the Fourth and Fourteenth Amendments. The complaint also included a wrongful death
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claim under California law, which alleged that the officers had acted negligently, violently and without due care in killing Hernandez. The district court bifurcated the state and federal claims and only the latter went to trial. By special verdict, the jury found that three of the officers did not violate Hernandezs Fourth and Fourteenth Amendment rights by using excessive force against him. The jury was unable to reach a verdict as to the fourth officer, but the district court granted judgment in his favor on the ground that as a matter of law the officer did not use unreasonable force in violation of the Fourth Amendment. The district court then entered judgment in favor of all the officers on the claims of excessive force under the Fourth and Fourteenth Amendments. The court also dismissed without prejudice Plaintiffs remaining state law claims, explaining that it declined to exercise supplemental jurisdiction over those claims in view of the dismissal of the federal claims, over which it had original jurisdiction. Plaintiffs then filed the instant action in superior court against the same defendants. The complaint included a wrongful death claim based on the same allegations Plaintiffs had set forth in the wrongful death claim in their federal complaint. The Defendants demurred to the complaint on the ground the federal proceedings barred the instant action based on the doctrine of collateral estoppel. They argued that in the federal action, the issue of excessive and unreasonable force had been determined in their favor, and that that determination collaterally estopped Plaintiffs from pursuing their wrongful death claim. In opposing the demurrer, Plaintiffs argued that collateral estoppel did not apply because reasonableness for purposes of a 1983 claim is not the same as reasonableness under state negligence law. The trial court agreed with the Defendants, explaining that in the federal case, the factual finding that the officers did not use excessive force when they shot Hernandez, (i.e., that the deadly force used was objectively reasonable under the circumstances), precluded relitigation of the same issue in the state action. The Court of Appeal reversed the judgment of the trial court in favor of all the Defendants. The court first held, as did the trial court, that the finding in the federal action that the officers conduct was objectively reasonable under the circumstances precluded Plaintiffs from recovering on the theory that the officers failed to exercise reasonable care in using deadly force. However, the court then held that Plaintiffs could proceed on the theory that the officers failed to use reasonable care in creating, (through their preshooting conduct), a situation whereby it was reasonable for them to use deadly force. The court reasoned that neither the jurys special verdict, nor the federal courts post-trial ruling regarding one of the officers addressed that issue. The Court of Appeal therefore reversed the judgment that the trial court entered for the officers and remanded the case to permit Plaintiffs to file an amended complaint alleging that theory. The California Supreme Court granted review.
CALIFORNIA SUPREME COURT DECISION The California Supreme Court held that the federal judgment which found that the officers conduct was objectively reasonable under the circumstances collaterally
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estopped Plaintiffs from pursuing their state court negligence action for wrongful death, even on the theory that the officers preshooting conduct was allegedly negligent. The
