CIVIL RIGHTS CASES

station. Applicant attempted to rise when the homeless person returned and struck applicant in the left temple with a fist causing applicant to fall backwards striking his head. QME Dr. Anderson diagnosed applicant with left temporal intracranial hemorrhage, post-concussive syndrome, and persistent headaches attributed to moderate traumatic brain injury. Defendant argued that the fact that applicant exited the station and attempted to chase an individual constituted deviation from his job and took applicant outside the course of employment. The job summary states that the primary purpose of the security officer is to provide protection for Greyhound property and personnel. The employee manual also states that the security offices are “expected to challenge persons in a professional manner to enforce access to restricted areas” but are not to put themselves in danger. Labor Code 3600 imposes liability on an employer for workers’ compensation benefits only if its employee sustains an injury “arising out of and in the course of employment.” An employer is liable, where, at the time of the injury, an employee is “performing service growing out of and incidental to his or her employment and is acting within the course of employment.” The WCAB held that the performance of a duty in an unauthorized manner does not take the employee outside the course of employment. The fact that the applicant exited the bus station and attempted to chase and/or apprehend the individual did not constitute a deviation that took him outside of the course of his employment.

CIVIL RIGHTS CASES Summaries provided by Noah G. Blechman , Darra Lanigan, Alexander Romero, and Ashlee Thomas of McNamara, Ney, Beatty, Slattery, Borges & Ambacher, LLP

B.B. v. County of Los Angeles (2020) 10 Cal.5th 1

Summary: California Civil Code § 1431.2, comparative fault, does not apply to intentional tortfeasors held liable for injures based on an intentional tort. Discussion: On August 3, 2012, Los Angeles County Sheriff’s deputies responded to a report of an ongoing assault. Darren Burley was on scene, making slow, stiff, exaggerated robotic movements, foaming at the mouth, and grunting. Deputies suspected Burley was on PCP. A struggle ensued, in which multiple officers put as much bodyweight as they could on his head, neck, and back. At one point, an officer had Burley in a headlock. Witnesses saw officers hit Burley in the head 7-10 times. There were disputed facts regarding what happened after Burley was restrained. Officers stated they stopped using force against Burley. The fire captain testified otherwise. Regardless, Burley’s pulse stopped, he lost consciousness, and ten days later, he died. According to the autopsy, Burley died from brain death and swelling from lack of oxygen following cardiac arrest due to status post restraint maneuvers, or behavior associated with cocaine, PCP and cannabinoids intake. The jury found against Deputy Aviles, attributing 20% of the responsibility for Burley’s death to his unreasonable use of force, 40% of the responsibility for Burley’s death to Burley himself, and the remaining 40% to the other two deputies. The trial court entered judgment for 100% of the non-economic damages against Deputy Aviles, because his liability was based on an intentional tort, battery. The Court of Appeals reversed that judgement, holding that § 1431.2 limits the liability for noneconomic damages of all defendants, including intentional tortfeasors. Civil Code § 1431.2 (a) provides: “In any action for personal injury, property damage, or wrongful death, based upon principles of comparative fault, the liability of each defendant for non-economic damages shall be several only and shall not be joint. Each defendant shall be liable only for the amount of non-economic damages allocated to that defendant in direct proportion to that defendant’s percentage of fault, and a separate judgment shall be rendered against that defendant for that amount.” Plaintiffs argued that the phrase “based on principles of comparative fault” meant that the statute did not apply to intentional tortfeasors, as intentional tort actions are not based in principles of comparative fault. The California Supreme Court agreed with that interpretation, holding that § 1431.2 does not authorize a reduction in the liability of intentional tortfeasors for non-economic damages.

Summary: The Ninth Circuit affirmed the grant of summary judgement on the basis of qualified immunity. No controlling precedent established that the use of deadly force violated the decedent’s rights, when the decedent was shot and killed as he advanced toward an individual he had reportedly just assaulted, with a drawn knife, in defiance of police orders to stop. Discussion: On December 24, 2015, officers responded to a 911 call regarding several instances of domestic violence. When officers arrived on scene, the victim, Martha Andrade, identified her attacker as Omar Ventura, who at that time was approaching her and the officers. Officer Rutledge issued orders for Ventura to stop, which he ignored. Ventura took a knife from his pocket and continued towards Andrade, saying, “Is this what you wanted?” Officer Rutledge then shouted a warning, “Stop, or I’ll shoot”. Ventura did not stop and the officer fired two shots at him. The shots killed Ventura. The parties agree that Ventura got within 10-15 feet of Andrade before Officer Rutledge fired. Officer Rutledge was entitled to qualified immunity as it was not clearly established under the law that Officer Rutledge’s use of deadly force was unconstitutional. Ventura was advancing with a knife, toward a woman whom he had reportedly just assaulted. Ventura ignored repeated commands to stop and a warning that Officer Rutledge would shoot. The plaintiffs failed to show that it was established that the use of deadly force under these circumstances, constituted excessive force.

Cortesluna v. Leon (9th Cir. 2020) 979 F.3d 645

Summary: The Ninth Circuit affirmed summary judgment for Officer Leon for deploying a beanbag shotgun at Plaintiff when he lowered his hands towards his thighs, where a knife was located. The Ninth Circuit reversed summary judgment for Officer Rivas-Villegas, who kneeled on Plaintiff’s back just a few minutes later, stating there was a genuine issue of material fact as to whether that force was excessive on a prone and non-resisting person. The Court also affirmed summary judgment for the supervising sergeant, finding he lacked any realistic opportunity to intercede to stop any claimed excessive force, but reversed summary judgment on the Monell claims, given the decision regarding Officer Rivas-Villegas. Discussion: On November 6, 2016, dispatchers received a 911 call from a 12-year-old girl, who reported that her mother’s boyfriend, Cortesluna, had a chainsaw and was going to attack them. The children and their mother had barricaded themselves in a room. The 911 dispatcher heard a sawing sound. When officers arrived on scene, Cortesluna no longer had the chainsaw, and appeared to be inside drinking a beer. Officer Leon had a beanbag shotgun. Cortesluna came out of the house, holding a metal item that appeared to be a crowbar. He dropped it when ordered to do so. Officer Rivas-Villegas saw a knife in the pants pocket of Cortesluna, which he announced, and told Cortesluna to keep his hands up, and not to put his hands down. Cortesluna lowered his head and his hands. Officer Leon then fired a beanbag round at him. He fired a second beanbag round at Cortesluna while his hands remained in a downward position. After the second shot, Cortesluna put his hands over his head. Officers ordered Cortesluna to get on the ground. Officer Rivas-Villegas used his foot to push Plaintiff to the ground. Then, Rivas-Villegas pressed his knee into Cortesluna’s back while Officer Leon handcuffed him. Other officers entered the house, and the incident ended. The district court granted summary judgement to the individual defendants on the federal claims. The district court held that the force used was objectively reasonable and the officers were entitled to qualified immunity. As to the use of the beanbag shotgun and Officer Leon, the Ninth Circuit agreed. In the Court’s Graham analysis, the crime alleged here was severe, Cortesluna allegedly threatened children, and their mother, with a chainsaw. Officer Leon faced an immediate threat, as Cortesluna had a knife, and Officer Leon was not in a position to see the knife was blade-up in his pocket. Finally, Cortesluna was not compliant with the officers. Before the first beanbag shot was fired, Cortesluna put his hands down by the knife after being told to keep his hands up. His hands remained in that relative position at the time of the second beanbag shot. For those reasons, Officer Leon’s use of force was objectively reasonable.

As to Officer Rivas-Villegas, the Ninth Circuit held there was a genuine dispute of material fact that required resolution by a jury. Once Cortesluna had been shot twice by the beanbag shotgun, the objective situation changed dramatically. At the time Rivas-Villegas put his knee on Cortesluna’s back, Cortesluna was lying face down on the ground, in pain from the beanbag rounds, and not resisting. Furthermore, Officer Rivas-Villegas, unlike Officer Leon, could see the knife was blade up in Cortesluna’s pocket, making it unlikely the suspect could pull the knife out and use it to attack. Cortesluna alleges lingering injuries from Officer Rivas-Villegas’s knee. In viewing these facts in the light most favorable to Cortesluna, a genuine dispute of material fact existed.

Sandoval v. County of San Diego (9th Cir. 2021) 985 F.3d 657

Summary: An objective deliberate indifference standard should have been applied to a claim of inadequate medical care to a pretrial detainee. Discussion: Pretrial detainee Sandoval died of a methamphetamine overdose at a San Diego jail after medical staff left him unmonitored for eight hours, even though he exhibited signs of being under the influence. The nurses also failed to promptly summon paramedics when they discovered Sandoval unresponsive and having a seizure. The Ninth Circuit found that the district court erred in applying a subjective deliberate indifference standard and instead found that an objective standard applies to constitutional claims of inadequate medical care brought by pretrial detainees. When the court applied the objective framework it found that a jury could conclude Sandoval would not have died but for the defendants’ unreasonable response to his obvious signs of medical distress. The court explained that a jury could find that a reasonable nurse who was told of Sandoval’s condition and who was specifically directed to evaluate Sandoval more thoroughly, would have understood the risk of harm. Because of this, the court decided that the defendant nurse was not entitled to summary judgment, and reversed the district court’s ruling. The court further held that since the law was clearly established at the time as to the unreasonableness of the nurse’s conduct, the nurse was not entitled to qualified immunity.

Estate of Anderson v. Marsh (9th Cir. 2021) 985 F. 3d 726

Summary: An officer’s appeal of the district court’s denial of summary judgment based on qualified immunity was dismissed, as the appeal raised an evidence-sufficiency challenge and the appellate court lacks jurisdiction over such matters. Discussion: California Highway Patrol (“CHP”) officer John Marsh observed a vehicle traveling at a high rate of speed. When Ofc. Marsh attempted to stop the vehicle, the driver, Anderson, evaded the stop and led Ofc. Marsh on a three-minute pursuit until Anderson lost control of the vehicle and crashed into a chain-link fence. After the crash, Ofc. Marsh claimed that he heard the engine of the vehicle revving and saw the car rocking as if Anderson was attempting to dislodge it from the fence. Ofc. Marsh approached the vehicle and ordered Anderson to stop the car and show his hands. Ofc. Marsh testified that Anderson reached toward the passenger seat or floorboard and he feared Anderson was reaching for a weapon. Ofc. Marsh fired two rounds, one of which struck Anderson and paralyzed him. Anderson filed this claim but then died of causes not directly related to this incident, and his estate took over the litigation. The district court denied Marsh’s motion for summary judgment, finding that a jury could conclude that Anderson did not make a sudden reach for the passenger side of the car and thus, a jury could find that there was a lack of imminent threat, rendering the use of force excessive. Ofc. Marsh appealed, claiming the district court erred in finding disputed issues of material fact regarding whether Anderson made a sudden movement as if he were reaching for a weapon. The Ninth Circuit concluded that they lacked jurisdiction over the appeal because Marsh only challenged the district court’s determination that there is a genuine factual dispute. The court explained, they would have jurisdiction over an argument that the law is not clearly established that takes the facts in the light most favorable to the estate. However, the court does not have jurisdiction to decide whether there is enough evidence in the record for a jury to conclude that certain facts favorable to the estate are true.

Summary: Officers were denied qualified immunity on plaintiffs’ Fourth Amendment excessive force claim when the officers used deadly force against a slow-moving vehicle because they lacked an objectively reasonable basis to fear for their own safety since they could simply have moved out of the way to avoid being injured. Discussion: Two officers were on patrol looking for illegal street racing or “sideshows” where streets are blocked off so that vehicles can perform unlawful maneuvers. The officers came upon one of these sideshows and witnessed one car, a Silverado truck occupied by Orozco and driven by Villanueva, perform or attempt to perform an illegal maneuver. The officers entered the parking lot and intended to make a traffic stop. Villanueva drove away and officers followed until the Silverado was forced to stop at a dead-end street. The officers exited their vehicle and drew their firearms. Villanueva attempted to reverse and conduct a three-point turn. The officers opened fire, killing Villanueva and injuring Orozco. Orozco and Villanueva’s parents, on behalf of their son, filed this suit which includes an excessive force in violation of the Fourth Amendment claim. The officers moved for summary judgment and the district court denied it finding Orozco had standing to bring the claim, and construing the facts in the light most favorable to the plaintiffs, a reasonable jury could find that the officers used excessive force in violation of the Fourth Amendment. The Ninth Circuit concluded that because Orozco’s freedom of movement was terminated when the officers intentionally shot at the vehicle in which he was a passenger, he was seized within the meaning of the Fourth Amendment. Further, although the officers argued that their use of deadly force did not violate the Fourth Amendment because Villanueva threatened them with a deadly weapon (truck), the court concluded that since an officer who shoots at a slow-moving vehicle when he can easily step out of the way violates the Fourth Amendment, the officers were not entitled to qualified immunity.

Tabares v. City of Huntington Beach (9th Cir. 2021) 2021 U.S. App. LEXIS 4470

Summary: The Ninth Circuit found that the officer was improperly granted summary judgment on the plaintiff’s negligence claim because the district court improperly conflated the legal standards under the Fourth Amendment and California negligence law. Discussion: Officer Esparza sat at an intersection in his police vehicle when he noticed Tabares standing on the sidewalk. Tabares caught the officer’s attention because he was wearing a sweater on a warm day, was walking abnormally, made fidgeting and flinching movements with his hands, and looked in the officer’s direction several times. Ofc. Esparza decided to detain Tabares. The two began to fight and during the struggle, Tabares grabbed the flashlight from the officer’s belt. Ofc. Esparza drew his gun and separated from Tabares by about 15 feet. Three seconds after separating, Ofc. Esparza shot Tabares seven times in total, killing him. Ms. Tabares filed claims that included an excessive force claim under the Fourth Amendment in addition to claims under California law claims including a negligence claim. The district court granted summary judgment on all claims for the Defendants. The Ninth Circuit called attention to the differences between the Fourth Amendment legal standard and the California negligence legal standard. Essentially, California negligence law is broader than federal Fourth Amendment law. For instance, in California, officers are liable “if the tactical conduct and decisions leading up to the use of deadly force show, as part of the totality of circumstances, that the use of deadly was unreasonable.” This means that the officer’s pre-shooting decisions can render his behavior unreasonable under the totality of the circumstances, even if his use of deadly force at the moment of shooting may be reasonable in isolation. See, e.g. Mendez v. Cnty. of Los Angeles, 897 F. 3d 1067, 1082-83 (9th Cir. 2018). The Ninth Circuit found the district court inaccurately concluded that Ms. Tabares did not point to any evidence probative of the fact that her son showed signs of mental illness, and it conflated the broader California negligence standard with the Fourth Amendment standard, not considering that a jury could find the officer’s pre-shooting conduct was unreasonable under California law. Ultimately, the court found that the plaintiff’s claim survived summary judgment under the broader California negligence law.

Summary: Summary judgment for a canine officer on the basis of qualified immunity was affirmed and upheld. The Ninth Circuit agreed with the district court’s finding that there was no clearly established law governing the reasonableness of using a canine to subdue a noncompliant suspect who resisted several types of force and refused to surrender. Discussion: Scott Hernandez filed a § 1983 suit alleging canine Officer Steve Gilbert and the Town of Gilbert, Arizona, used excessive force in effecting Hernandez’s arrest for driving under the influence and resisting arrest. Following a brief police chase, Hernandez fled to his home where he activated the remote-controlled garage door opener, remained in control of his car inside the garage for eight minutes, refused multiple commands to get out of the car, and resisted lesser force employed by officers, including the use of several body control holds and the use of pepper spray, without effect while he continued resisting. To force compliance, after issuing several verbal warnings that a canine would be deployed, Ofc. Gilbert released his police dog. Hernandez continued to resist even after the dog bit him. Officers eventually completed the arrest. The district court granted summary judgment on the basis of qualified immunity, finding it was not clearly established that an officer in Ofc. Gilbert’s position, deploying a canine to subdue a noncompliant suspect, acted unreasonably or in violation of the Fourth Amendment. The Ninth Circuit affirmed this decision. In affirming the district court’s grant of qualified immunity to Defendant on Hernandez’s excessive force claim, the panel held that no clearly established law governed the reasonableness of using a canine to subdue a noncompliant suspect who resisted other types of force and refused to surrender. The panel held that neither the initial deployment of the canine nor the duration of the bite violated clearly established law. The panel noted that officers employed an escalating array of control techniques, none of which were effective in getting Hernandez to surrender, before deciding to release the police dog. The panel further held that Hernandez’s claim that the duration of the bite was unreasonable because he had surrendered was contradicted by the video evidence captured on the police officers’ body cameras, showing Hernandez clearly continued to resist arrest.

Rice v. Morehouse (9th Cir. 2021) 989 F.3d 1112

Summary: Officers were not entitled to qualified immunity after performing a take down on a man who was passively resisting and refusing to cooperate during a traffic stop. Discussion: In December 2011, while traveling with his family on Interstate 84 in Boise, Idaho, Lee Rice was stopped by Idaho state police for failing to signal before making a lane change. Believing there was no reason for the stop, Rice refused to give the officer his license and registration. The officer performing the stop, Officer Murakami, put out a call for back up, requesting one unit to assist her in removing Rice from his vehicle. Dozens of officers, including Officers Morehouse and Shaffer, responded to the scene and pulled Rice out of his car. As Rice was led from his car, Officers Morehouse and Shaffer tripped him causing him to fall to the ground, allowing the officers to pin him down and handcuff him. Rice filed a suit against the officers for violating his Fourth Amendment rights. The district court granted summary judgment in favor the officers on the basis of qualified immunity, finding that the officers did not violate Rice’s constitutional rights, and if they did, the right was not clearly established. The Ninth Circuit found the opposite and reversed the district court. The Ninth Circuit determined a jury could find that Officers Morehouse and Shaffer used excessive force by performing a takedown of Rice after he refused to turn over his identification. Further, the Ninth Circuit held the right to be free from non-trivial force for engaging in passive resistance was clearly established at the time of the incident, therefore precluding qualified immunity.

Summary: Deputy Marcus Holton did not use excessive force when attempting to stop Plaintiff Gabbi Lemos from fleeing arrest and the district court properly found Plaintiff’s § 1983 excessive force claims were Heckbarred following her conviction for a violation California Penal Code § 148(a)(1) (resisting, obstructing and/or delaying a peace officer). Discussion: In June 2015, Deputy Holton came upon what he believed to be a possible domestic dispute after seeing a truck blocking traffic and hearing screaming. As Deputy Holton attempted to speak with the male occupant of the vehicle, 18-year-old Lemos inserted herself between the deputy and the car door while pointing her finger at the deputy and yelling he was not allowed into the truck. Deputy Holton ordered Lemos to cease interfering with his investigation, but she refused to comply. Later, as Deputy Holton attempted to arrest Lemos for a violation of P.C. §148(a)(1), Lemos began to walk away prompting Deputy Holton to grab her and bring her to the ground to complete her arrest. In November 2015, Lemos filed a § 1983 lawsuit alleging excessive force in connection with her June 2015 arrest. In April 2016, her § 1983 action was stayed while the State brought criminal charges against her for resisting, obstructing, and delaying a peace officer. In August 2016, Lemos was convicted by a jury that found Deputy Holton acted lawfully in the performance of his duties and that Lemos had willfully resisted, delayed or obstructed his performance of those duties. Following the completion of the criminal trial, the district court lifted the stay on the § 1983 action. Eventually, the district court awarded summary judgment in favor of the Defendants on the basis that Lemos’ claims were Heck-barred and all material factual disputes had been resolved by the criminal jury. The Ninth Circuit affirmed the district court’s ruling.

Gordon v. County of Orange (9th Cir. 2021) 2021 U.S. App. LEXIS 22055

Summary: Pre-trial detainees are entitled to adequate, direct-visual safety checks when they are known to require medical attention. Discussion: In September 2013, inmate Mathew Gordon was arrested by the Placentia Police Department on charges related to the drug possession. Later that day, Gordon was brought to the Orange County Central Men’s Jail where he informed the intake nurse that he consumed an average of 3-grams of heroin per day. Despite being informed of Gordon’s drug usage and dependency, Nurse Debbie Finley failed to initiate a drug detoxification protocol. Eventually, a non-party medical doctor ordered that Gordon be placed on an alcohol detoxification protocol and his jail identification card was updated to read: “Medical Attention Required.” Gordon was housed in Module C, which was subject to safety checks every 60 minutes. On the evening of September 9th, after approximately 30 hours at the jail, Gordon was found unresponsive in his cell. Deputy Denney, the Module C deputy on duty that night, testified that he completed his safety checks on Gordon from approximately 12 to 15 feet from Gordon’s bunk. Deputy Denney admitted from that vantage point, he could not ascertain whether Gordon was breathing, alive, or if he was suffering from any medical emergency. The Ninth Circuit concluded that pre-trial detainees have a clearly established, constitutional right to proper medical intake screenings. The Ninth Circuit explained prison officials violate the Constitution when they choose a course of treatment that is medically unacceptable and Nurse Finley’s failure to act on Gordon’s admitted substance abuse could be considered medically unacceptable. Further, the Ninth Circuit concluded that while it was not clearly established at the time of Gordon’s death, pre-trial detainees have a constitutional right to direct-view safety checks when the inmate is known to require medical attention. However, because this right was not clearly established in 2013, Deputy Denney was granted qualified immunity.