Municipal Tort and Civil Rights Litigation Update

City Attorneys Department League of California Cities Spring Conference May 2002

MUNICIPAL TORT AND CIVIL RIGHTS LITIGATION UPDATE

Eugene P. Gordon Deputy City Attorney Office of City Attorney 1200 Third Avenue, Ste. 1100 San Diego, CA 92101 (619) 533-5821 POINTING A GUN AT A SUSPECT'S HEAD FROM CLOSE RANGE CAN CONSTITUTE EXCESSIVE FORCE UNDER§ 1983

1. Robinson v. Solano County, 278 F.3d 1007 (2002).

The conduct of police officers in pointing a gun at a suspect during an actual seizure can give rise to § 1983 liability for excessive force.

In this case, Plaintiff, a 64-year-old retired police officer who raised livestock, used a shotgun to shoot two dogs who were attacking his livestock. One dog was killed and the other was wounded. Plaintiffthen went looking for the wounded dog. His search took him to the public road fronting his property, and he walked approximately fifty feet along the road carrying the shotgun.

While Plaintiff was on the road looking for the dog, his neighbor, the owner of the dogs, came out of her house. The two had a heated discussion regarding the dogs that had been shot, after which Plaintiff returned home. The neighbor went back into her house and phoned the police. Several officers responded to the call and they parked on the public road in front of Plaintiffs property.

Plaintiff, seeing six police vehicles pull up outside his home, decided to go out and explain the incident to the officers. Wearingan unbuttoned shirt and a pair of jeans, Plaintiff walked the 135 feet from his front door to the street. He asserted that the officers were able to see him approach, and that they observed that his demeanor was calm. He also stated that the officers kept their guns holstered as he approached. Two of the officers, however, contended that Plaintiff appeared agitated, and that they unholstered their guns upon first seeing him.

As Plaintiff approached the street, he claimed that one officer pointed his gun at Plaintiffs head from a distance of about six feet. Another officer also took out his gun and pointed it at Plaintiff. The first officer told Plaintiffto put his hands over his head, and as he put his hands up, he asked the officers "What's going on?" Without answering the question, the first officer repeated the command as he stepped forward, and according to Plaintiff, thrust his gun three or four feet from Plaintiffs head. As a former police officer, Plaintiff was aware of the immediate physical danger posed by a gun pointed at his head from point blank range; he testified that he feared for his life.

Plaintiff was handcuffedand placed in the back of a patrol car. He was confined to the police car while the officers talked to the neighbor and others. Plaintiff was released within fifteen to thirty minutes afterthe officers determined that he had not violated any law. He was never charged with any crime for the events in question.

Plaintiff filed a civil action in federal court alleging both state and federal claims for false arrest and excessive force against the individual officersand the County. The

1 district court granted summary judgment with respect to all claims against the County and all state claims against the individual defendants. However, the court declined to grant summary judgment on the § 1983 unlawful detention and excessive force claims against the police officers, and those claims proceeded to trial.

The jury found that the length of Plaintiffs detention was reasonable, but divided four to four on the question of whether the force employed to seize Plaintiff was reasonable. The court granted the officers' motion for judgment as a matter of law on the excessive force claim, holding that they were entitled to qualified immunity.

The original three-judge panel of the Court of Appeals reversed the grant of judgment as a matter of law on the§ 1 983 excessive force claim and remanded for a new trial. The court held that the officers were not entitled to qualified immunity on the federal excessive force claim because, according to the three-judge panel, the law was clearly established that pointing a gun at Plaintiffs head under the circumstances violated his constitutional rights.

The Court of Appeals ordered the case to be reheard en bane "in order to clarify the law in the circuit regarding excessive force that violates the Fourth Amendment protections against unreasonable searches and seizures, and to clarify the law of the circuit on the scope of qualified immunity for excessive force cases."

The Ninth Circuit, en bane, concluded that Plaintiff alleged a claim of excessive force in violation of the Fourth Amendment under the standard of "objective reasonableness" enunciated by the Supreme Court in Grah am v. Connor, 490 U.S. 386 (1989). According to the court, in this case, none of the factors permitting the use of force was present to justify pointing guns at Plaintiffs face. The crime under investigation was a misdemeanor and Plaintiff was apparently unarmed and approached the officers in a peaceful way. There were no dangerous or exigent circumstances apparent at the time of the detention, and the officersoutnumbered Plaintiff. According to the court, Plaintiffsearlier use of a weapon that he clearly no longer carried was insufficient to justify pointing guns at his face at close range.

The court rejected the argument that the mere pointing of a gun without a physical touching is insufficient to constitute excessive force. According to the court, in the context of an otherwise legal seizure (a detention or an arrest), an unjustified display of force can constitute excessive force in violation of the Fourth Amendment.

However, the en bane court held that the officerswere entitled to qualified immunity on the§ 1983 excessive force claim because, according to the court, at the time of the incident, it would not have been clear to a reasonable officer that the pointing of guns in the manner alleged by Plaintiff could be excessive force.

2 POLICE OFFICERS WHO USED PEPPER SPRAY ON NONVIOLENT PROTESTORS ARE NOT ENTITLED TO QUALIFIED IMMUNITY

2. Headwaters Forest Defense v. County of Humboldt, 276 F .3d 1125 (9th Cir. 2002).

Police officers who used pepper spray on protestors who were sitting peacefully, who could have been easily moved by the police, and who did not threaten or harm the officers are not entitled to qualified immunity

In this case, environmental activists staged three nonviolent protests against what they perceived to be the unnecessary logging of ancient redwood trees in the Headwaters Forest along California's northern coast. During each protest, two to seven protestors linked themselves together using self-releasing lock-down devices known as "black bears." A "black bear" is a ten to twenty-five pound steel cylinder (about one-fourth of an inch thick) with a rod or post welded into the center. The protestors placed their arms in the steel cylinders and attached steel bracelets around their wrists to the center rods or posts in the "black bears" by using mountain climbers' carabiners. When in place, the devices immobilized their arms and prevented their separation, although the protestors could disengage themselves by unclipping the carabiners from inside the cylinders.

If the protestors did not voluntarily agree to release themselves, the lock-down devices made it difficult, but not impossible for law enforcement officersto take the protestors into custody. To forcibly remove the "black bears," the officers would have to use a hand-held electric grinder capable of cutting through steel. The grinder had been used for about seven years to remove hundreds of "black bears" from protestors' arms without causing injuries to either officers or protestors.

Nevertheless, because the electric grinder generates sparks when applied, the Sheriffs Department had a growing concern about the dangers involved in using it. For that reason, the Department explored alternatives for effecting the arrest of protestors in lock-down devices, including the use of pepper spray.

The protests took place in the lobby of a lumber company, the office of a Congressman, and at a remote logging site. During each protest, two to seven protestors were linked together with "black bears." At each protest, Sheriffs deputies determined that the use of the hand-held electric grinder to remove the protestors would have presented a fire hazard due to the presence of combustible material, or would have been too difficult under the circumstances.

The Sheriffs Department videotape of each incident showed that the protestors were warned that officers would use pepper spray on them if they did not voluntarily release themselves from the "black bears." The officers made no attempt to negotiate with the protestors, and repeatedly threatened to use pepper spray, unless the protestors released themselves from the "black bears." After the

3 protestors refused to release themselves, the officersforced the protestors' heads back and applied pepper spray with a Q-tip to the corners of their closed eyes. Officers also sprayed pepper spray directly into the faces of several protestors. Some of the protestors screamed in pain, some voluntarily released themselves, and others were carried by officers after which they released themselves. The electric grinder was used to extricate some of the protestors from the "black bear." No pain or injury was inflicted by the grinder. Officerssprayed water into the eyes of the protestors to dilute the pepper spray, but four of the protestors were not sprayed with water until twenty-six minutes after the pepper spray was used.

Nine protestors on whom the police had used pepper spray and an environmental group filed a § 1983 action against several individual officers and various public agencies, alleging that the officers' use of pepper spray on the protestors' eyes and faces during the peaceful protests constituted an excessive use of force in violation of their Fourth Amendment rights. The district court granted summary judgment in favor of the individual defendants. The jury deadlocked on the claims against the public agencies, and the district court granted judgment as a matter of law in favor of the agencies, finding that "there [was] no reasonable basis for jurors to find that the officers' use of [pepper] spray was objectively unreasonable in light of the facts and circumstances."

The Ninth Circuit previously issued an opinion in Headwaters Forest Defense v. County of Humboldt, 240 F.3d 1185 (9th Cir. 2001 ), in which it reversed the decision of the trial court granting judgment in favor of defendants. The U.S. Supreme Court granted certiorari, vacated the judgment of the Ninth Circuit, and remanded the case for further consideration in light of Saucier v. Katz, 533 U.S. 194 (2001 ), a case in which the Supreme Court described the way in which the courts must proceed when state officials assert qualified immunity in a § 1983 excessive force case.

Here, the Ninth Circuit reviewed the facts and circumstances in light of Saucier and reaffirmed its previous conclusion that the individual officers were not entitled to qualified immunity. The court concluded in its prior opinion that a rational jury could find that the use of pepper spray against the protestors constituted excessive force. Thus, the first inquiry under Saucier was satisfied.

The second inquiry under Saucier is whether it would be clear to a reasonable officer that using pepper spray against the protestors in the specific situation would be unlawful. The Ninth Circuit answered this question in the affirmative. The protestors were sitting peacefully, could be easily moved by the police, and did not threaten or harm the officers. Therefore, according to the court, under those circumstances, it would be clear to a reasonable officerthat the use of pepper spray against the nonviolent protestors would be excessive.

The court also concluded that repeated use of pepper spray was also clearly unreasonable. According to the court, while the use of pepper spray may be

4 reasonable to bring an arrestee under control, if the officersalready have control of the arrestee, the use of pepper spray would be clearly unreasonable.

The court also concluded that spraying the protestors with pepper spray, and not providing them water to dilute the pepper spray for over twenty minutes clearly constituted excessive force under the circumstances.

A CONVICTION FOR RESISTING ARREST PRECLUDES AN ACTION UNDER§ 1983 FOR EXCESSIVE FORCE AND A STATE LAW ACTION FOR BATTERY

3. Susag v. City of Lake Forest, 94 Cal. App. 4th 1401 (2002).

A person convicted of resisting or obstructing a peace officer (Pen. Code§ 148) is barred from maintaining a § 1983 action for excessive force and a state law claim for battery arising from the alleged use of excessive force during the arrest, unless the conviction has been set aside through appeal or other postconviction proceeding.

In this case, a deputy sheriff was in the process of towing a parked car with an expired registration when Plaintiff got into the driver's seat and told the deputy that he could not take the vehicle. Plaintiff started the car and accelerated the engine.

The deputy pepper-sprayed Plaintiffs eyes after Plaintiff ignored orders to get out of the car, cursed at, and pushed the deputy. The deputy called for assistance and then followed Plaintiff into an auto body shop operated by Plaintiffs family. Nine additional deputies arrived at the scene, and when Plaintiff attempted to leave the office, the original deputy and another deputy grabbed his arm. Plaintiffheld out his arms straight, but after "about a minute of pulling on his arms," the deputies handcuffed him and took him into custody. Plaintiffs father attempted to intervene and was placed under arrest.

Plaintiff was found guilty by a jury of the misdemeanor offense of resisting or obstructing a peace officer engaged in the performance of his duties. (Pen. Code § 148.)

Plaintiff filed suit against the ten deputies involved in the incident and the County for excessive force under§ 1983 and for assault and battery, intentional infliction of emotional distress and false imprisonment under state law. The trial court granted summary judgment in favor of Defendants on the ground that Plaintiffs conviction under Penal Code section 148 precluded the action as a matter of law.

The Court of Appeal affirmed the grant of summary judgment in favor of Defendants. The court held that the criminal court conviction of resisting or

5 obstructing a peace officerwas a bar to the§ 1983 claim under Heck v. Humphrey, 512 U.S. 477 (1994). In Heck, the Supreme Court held that "in order to recover damages for an allegedly unconstitutional conviction or imprisonment, or for other harm caused by actions which unlawfulness would render a conviction or sentence invalid, a § 1983 plaintiff must prove that the conviction or sentence has been reversed on direct appeal, expunged by executive order, declared invalid by a state tribunal authorized to make such determination, or called into question by a federal court's issuance of a writ of habeas corpus."

According to the court, under Heck, a plaintiffcannot maintain a § 1983 action for excessive force absent proof that the conviction under Penal Code section 148 has been invalidated by appeal or other proceeding. The court reasoned that because the lawfulness of the arrest has been determined in the criminal proceeding, Plaintiffs allegations that he was subjected to excessive force during his arrest, if proven, would necessarily imply the invalidity of his criminal conviction.

The court rejected Plaintiffs argument that the record in his criminal case did not reflect which acts formed the basis for his conviction, and as a result he can pursue his § 1983 action for the deputy's use of pepper spray before the was ultimately subdued and placed in the patrol car. The court concluded that "any claim of excessive force based on discrete acts that occurred immediately preceding [Plaintiffs] arrest is barred by [Heck], since a finding in his favor would necessarily imply the invalidity of his conviction under Penal Code section 148."

Since Plaintiff did not allege a claim of excessive force that took place after he was finally subdued and placed in the patrol car, the court concluded that Plaintiffs § 1983 claim for excessive force was barred by Heck v. Humphrey.

The court also held that Plaintiffs criminal conviction barred his state law claims for assault and battery, intentional infliction of emotional distress and false imprisonment. According to the court, permitting Plaintiff to pursue his state tort claims notwithstanding a conviction under Penal Code section 148 would potentially allow him to profit from his own wrongdoing. "The lawfulness of the officers' conduct was established in the criminal proceeding and a contrary result in the civil action would shock the public conscience, engender disrespect for courts and generally discredit the administration of justice."

Moreover, according to the court, it would be unsound to distinguish between § 1983 claims and state law claims arising from the same alleged misconduct. Since Heck v. Humph rey barred the§ 1983 claim, the court held that the state law claims arising from the same alleged misconduct were also barred.

THE EXONERATION OF AN OFFICER OF CONSTITUTIONAL WRONGDOING

6 DOES NOT NECESSARILY PRECLUDE MUNICIPAL LIABILITY UNDER§ 1983

4. Fairley v. Luman, 281 F.3d 913 (9th Cir. 2002).

The fact that a jury exonerates individual officersof constitutional wrongdoing does not preclude municipal liability as a matter of law under§ 1983.

In this case, Plaintiff John B. Fairley was taken into custody by City police officers for violating a temporary restraining order after a confrontation with his next door neighbor. While Plaintiff was in custody, officersran a warrant check and found two infraction warrants that were two years old for Joe B. Fairley, Plaintitrsidentical twin brother. The physical description of the two men was similar in certain respects: both were black, between 5' 6" and 5' 8," and, of course, were the same age. However, their weights differed by approximately 66 pounds and although the driver's license number on one of the warrants was similar, it was not identical to the number on Plaintitrs driver's license. Plaintiff had not had contact with the police in almost ten years, and both he and his wife told the officersthat the warrants had to be for Joe.

The officers knew that Plaintiff had a twin: the temporary restraining order application said so, and the next door neighbor pointed that fact out to the officers. The two arresting officerstold the booking sergeant that Plaintiff had a twin brother, as did Plaintiff himself, insisting that the warrants were for his twin. However, the sergeant approved Plaintitrs booking based on the similarity in the physical descriptions alone.

Plaintiffwas detained in jail for twelve days on the infraction warrants even though the charge of violating the restraining order was dropped three days afterhis arrest. Neither a fingerprint comparison, nor a Department of Motor Vehicles check was completed at any time during the twelve-day detention. Either would have immediately alerted the City that it had the wrong person. In fact, the City conceded that it had the fingerprints of both men which could easily have been compared.

Plaintiff brought a § 1983 action against the arresting officers and the booking sergeant for use of excessive force and false arrest in violation of the Fourth Amendment, and deprivation of libertywithout due process of law in violation of the Fourteenth Amendment. Plaintiff also brought a Monellclaim against the City for violation of Plaintitrscivil rights by reason of a policy, custom or practice of its Police Department. The jury exonerated the individual officers of use of excessive force and arresting Plaintiff without probable cause, but found the City itself liable for violating Plaintitrs constitutional rights. The district court denied the City's motion for judgment as a matter of law, or in the alternative, for a new trial.

The Court of Appeals affirmed the judgment against the City. The City's principal argument was that the City was entitled to judgment as a matter of law because the

7 jury determined that the individual officers had not violated Plaintiffs constitutional rights. With respect to the excessive force claim, the court agreed with the City that since the jury exonerated the officers on that claim, municipal liability was precluded. According to the court, to hold the City liable for the arresting officers' actions, the court would have had to rely on respondeat superior liability which has been specifically rejected by the U.S. Supreme Court in § 1983 actions.

However, with respect to Plaintiffs arrest without probable cause and deprivation of liberty claims, the court held that sufficient evidence supported a jury finding that the failure of the Police Department to institute procedural safeguards to decrease the risk of erroneous detentions of individuals arrested on warrants constituted a "policy" which resulted in a constitutional injury to Plaintiff. According to the court, since Plaintiffsuffered a constitutional injury caused by the City itself "as a result of the collective inaction of the Police Department," the City can be found independently liable even though the individual officers were exonerated.

9-1-1 EMERGENCY DISPATCHERS OWE A DUTY OF DUE CARE TO CITIZENS WHO CALL FOR MEDICAL HELP

5. Ma v. City and County of San Francisco, 95 Cal. App. 4th 488 (2002).

Emergency medical dispatchers owe a tortduty of ordinary due care to citizens who use the 9-1-1 medical emergency service.

In this case, Plaintiffs are the heirs of decedent who died from an acute asthma attack. On the evening of her death, decedent complained to her husband that she was not feeling well and was having difficulty breathing. The husband responded by taking decedent to a nearby Kaiser facility which, apparently unknown to the husband, did not provide emergency medical services.

As the two entered the building, decedent was holding her chest and making sounds indicating that she was having a hard time breathing. A security guard in the building called 9-1-1 and he was immediately connected to the fire rescue dispatcher. He told the dispatcher that a woman had staggered into the building, had collapsed onto the floor and said she was dying. The security guard stated that the woman was still there and was screaming, "I'm dying and I can't breath."

The dispatcher asked the security guard to put the woman on the phone because the dispatcher believed that the woman's comment that she could not breath was inconsistent with the report that she was screaming. The security guard advised the dispatcher that the woman was unable to speak on the phone. Another person picked up the phone and told the dispatcher that the woman could speak only Chinese.

8 The dispatcher commented that because of the screaming in the background, she thought the woman might have ingested drugs. She entertained a belief that the woman might have overdosed and was acting aggressively and violently. She therefore dispatched police officers and asked them to call her once the scene at Kaiser had been secured and was safe. The officers arrived at the scene about ten minutes after the security guard initially called 9-1-1.

One of the police officers walked over to the woman on the floor and noticed that she had just finished vomiting. The officer immediately called for an ambulance Code 2. The Code 2 response-time goal is for a paramedic unit to arrive within twenty minutes of a 9-1-1 call. Shortly after calling for the ambulance, the officer saw that the woman had stopped breathing and he began to administer CPR. He also upgraded the ambulance summons from Code 2 to Code 3.

A Code 3 response-time standard is eight minutes or less from the time a 9-1-1 call is received for 90 percent of the calls, if is denominated a "Life Threatening Code 3 Dispatch." An inability to breathe is a mandatory "Life Threatening Code 3 Dispatch" without regard to the cause of the reported lift-threatening symptoms under Defendant's dispatch guidelines. The response standard for other Code 3 dispatches, which apply to events which are not immediately life threatening, but which could be, is ten minutes or less in 90 percent of the cases.

Here, the paramedics arrived ten minutes after the police, for a total actual response time of approximately twenty minutes from the time of the initial 9-1-1 call.

Plaintiffs,the surviving husband and father of decedent filed a wrongful death action against Defendant, the operator of the 9-1-1 system alleging essentially that the emergency medical dispatcher was negligent in the handling of the 9-1-1 call. Plaintiffs claimed that the dispatcher's characterization of the incident as a drug overdose, while ignoring decedent's pleas that she could not breathe and was dying, resulted in an unduly slow response to the 9-1-1 emergency call and prevented the responding paramedics from saving the life of decedent.

The trial court granted summary judgment in favor of Defendant, holding that Defendant did not owe decedent a duty of care, and that in any event, the Government Code afforded Defendant absolute immunity for discretionary acts by government employees.

The Court of Appeal reversed the grant of summary judgment. The court held that medical emergency dispatchers owe a duty of care to callers utilizing a 9-1-1 emergency service to properly handle the emergency call in compliance with emergency response protocols. The court concluded that the factors in Rowland v. Ch ristian, 69 Cal. 2d 108 (1968), supported the imposition of a duty on emergency services dispatchers to users of a 9-1-1 system. These factors include (1) the foreseeability of harm to the injured party; (2) the degree of certainty that the injured party suffered harm; (3) the closeness of the connection between the

9 defendant's conduct and the injury suffered; (4) the moral blame attached to the defendant's conduct; (5) the policy of preventing future harm; (6) the extent of the burden to the defendant; and (7) the consequences to the community of imposing a duty to exercise care, with resulting potential liability. Where a public entity is involved, the court considers additional factors such as the availability, costs, and prevalence of insurance for the risk involved, and the limitations imposed by the budget.

The court also held that the limited immunity afforded by Health and Safety Code section 1799.107 to "emergency rescue personnel" for services that are not performed in a grossly negligent manner or in bad faith does not include 9-1-1 medical emergency dispatching.

The court additionally held the public employee immunity from liability for an injury resulting from the exercise of discretion based on Government Code section 820.2 was inapplicable. The court reasoned that the immunity was inapplicable because the alleged misconduct involved the manner in which a 9-1-1 emergency dispatcher responded to a citizen call for medical help, not with high-level policy decisions regarding the creation and operation of a 9-1-1 system.

A LETTER SENT TO A CITY EMPLOYEE WHO WAS INVOLVED IN A TRAFFIC ACCIDENT WHICH REQUESTED INFORMATION ABOUT THE ACCIDENT DID NOT CONSTITUTE A TORT CLAIM

6. Del Real v. City of Riverside, 95 Cal. App. 4th 761 (2002).

A letter sent by a motorist to a police officer regarding a trafficaccident between the two of them in which the motorist requested the officer to give his account of the accident and to provide insurance information did not constitute a "claim" to the public entity for money or damages.

10 In this case, on November 22, 1997, a vehicle operated by Plaintiff was involved in an accident with a vehicle operated by a police officer acting within the scope of his employment with the City.

On March 10, 1998, Plaintiffs attorney sent a letter to the police officer asking the officer to provide his account of the accident and insurance information. On March 19, 1998, the City Attorney's Office responded to the March 10 letter indicating that the officer was represented by that officeand would not be providing any statement concerning the accident. It also indicated that all further contact with the officer should be made through the City Attorney's Office.

On August 7, 1998, more than six months after the accident, Plaintiff filed an application for leave to present a late claim to the City. The application asserted that the claim was not timely filed due to a mistake as to the appropriate time for filing and due to the mistaken belief that the injuries would subside.

On August 20, 1998, the City notified Plaintiff that her application for leave to present a late claim was denied and advised that any court action seeking relief from the claim filing requirements must be filed within six months. On or about November 20, 1998, Plaintiff filed a personal injury action seeking damages as a result of the accident. Plaintiffalleged compliance with the claim filing requirements.

The City filed a motion for summary judgment based upon Plaintiffs failure to comply with the mandatory claims filing provisions of the Government Code. Plaintiff opposed the motion on the ground that her March 10, 1998 letter to the police officer was sufficient to constitute a claim under the Government Code.

The trial court granted summary judgment in favor of the City, and the Court of Appeal affirmed. The appellate court held that the letter cannot be reasonably interpreted to put the City on notice that Plaintiff was attempting to file a tort claim, and that litigation would result if the matter was not resolved. According to the court, the letter did not bear any resemblance to a valid claim. It did not provide any information about the accident to enable the City to undertake an investigation, it did not indicate that Plaintiffwas a claimant, and it did not describe the nature of the accident or the identity of the persons involved in the accident. The letter was devoid of any description of injury or loss allegedly suffered, failed to indicate that anyone involved in the accident was a public employee, and failed to state any amount of damages claimed.

According to the court, the letter sought information to allow Plaintiffs counsel to evaluate the case, rather than provide information to the City to enable it to investigate the matter. Nothing was requested other than information. For that reason, according to the court, the letter did not constitute a "claim."

A PUBLIC ENTITY HAS NO OBLIGATION TO

11 PROVIDE SEPARATE REPRESENTATION TO ITS EMPLOYEE WHEN THERE IS AN ACTUAL OR POTENTIAL CONFLICT OF INTEREST BETWEEN THE EMPLOYEE AND THE ENTITY

7. City of Huntington Beach v. Petersen Law Firm, 95 Cal. App. 4th 562 (2002).

When a public entity and one of its employees are sued and there is an actual or potential conflict of interest between the public entity and its employee, the employee does not have the right to force the public entity to retain separate counsel to defend the employee.

In this case, several police officersand the City were sued in two separate lawsuits which alleged that the officersviolated plaintiffs' constitutional rights. Plaintiffsalso claimed that the officers falsely arrested Plaintiffs and committed an assault and battery. Plaintiffssought compensatory and punitive damages. In both cases, the City retained outside legal counsel to jointly represent the City and the individual officers. In both cases, the individual police officers advised the City that they did not consent to joint representation. They contended that there were actual or potential conflicts of interest between themselves and the City that required separate representation, and for th at reason, they executed substitutions of attorney by which they retained the Petersen Law Firm.

Thereafter, the Petersen Law Firm demanded that the City pay the fees incurred in Petersen's defense of the officers. The City refused.

In response to Petersen's demand for payment of its fees, the City sued Petersen and the individual officers for declaratory relief, seeking a judicial declaration that the City was not obligated to pay Petersen for its representation of the officers. The City moved for summary adjudication of issues, asserting that it had no duty to pay for the law firm's services to the officers. The trial court granted the motion for summary adjudication, finding that the City had no duty to pay for Petersen's representation of the officers.

The Court of Appeal affirmed the decision of the trial court, holding that even assuming that there were either actual or potential conflicts of interests between the City and the officers, the City cannot be forced to pay for a separate defense counsel for the officers.

Government Code section 995 sets forth the statutory obligations of public entities to provide for the defense of public employees in civil actions. Section 995 generally requires a public entity to provide a public employee a defense of any civil action brought against him "on account of an act or omission in the scope of his employment as an employee of the public entity."

However, the duty is not unlimited. There is no duty to defend if the employee's act or omission was not within the employee's scope of employment (Govt. Code,

12 § 995.2 (a)(1)), nor does the duty apply to actions against an employee arising out of the employee's actual fraud, corruption, or actual malice. (Govt. Code,§ 995.2 (a)(2).)

Another situation where there is no duty to defend exists when the public entity determines that "[t]he defense of the action or proceeding by the public entity would create a specific conflict of interest between the public entity and the employee. For the purpose of this section, 1Specific conflict of interest' means a conflict of interest or an adverse or pecuniary interest, as specified by statute or by a rule or regulation of the public entity." (Govt. Code,§ 995.2 (a)(3).)

According to the court, under section 995.2 (a)(3), a public entity is not required to provide any defense whatsoever to an employee in the event of an actual conflict of interest. The public entity's right to refuse to provide any defense at all necessarily includes the right to refuse to provide a separate defense. By contrast, when the conflict of interest is only potential rather than actual, the public entity remains obligated to provide a defense. However, according to the court, a public entity has no obligation to provide a separate defense. The liability of a public entity is entirely statutory, and although public entities are statutorily obligated to defend their employees even if a potential conflict of interest exists, no statute specifies that a public entity is liable for the cost of providing an entirely separate defense for an employee instead of a joint defense of the public entity and the employee.

Here, even assuming that there was a potential conflict of interest between the City and the officers,the City did not refuse to defend the officers. To the contrary, the

City defended the officers and offered to continue to defend them. Therefore, according to the court, the City was not obligated to reimburse the expenses incurred by the Petersen law firm in defending the officersseparately in the lawsuits brought against them.

PROPOSITION 213 DOES NOT PRECLUDE THE RECOVERY OF NONECONOMIC DAMAGES IN A CLAIM AGAINST A CITY FOR THE CRASH OF A CITY AIRLIFT HELICOPTER

8. Anaya v. Superior Court, 96 Cal. App. 4th 136 (2002).

Proposition 213 (The Personal Responsibility Act of 1996), does not preclude an uninsured owner of a motor vehicle from recovering noneconomic damages against a city for injuries resulting from the crash of a City airlifthelicopter that was allegedly negligently maintained and operated.

13 In this case, a young girl who was a passenger in a car driven by an uninsured motorist was seriously injured when the car was involved in an accident with a sanitation truck owned by the City. Plaintiffs, the young girl's parents, were the owners of the car and they did not have liability insurance. A helicopter, owned and operated by the City picked up the girl to take her to the hospital, but on the way, the helicopter crashed and the girl died.

The girl's parents sued the City for wrongful death on two theories: ( 1) the operator of the City's sanitation truck was negligent and such negligence was the cause of the death of the girl; and (2) the City was negligent in the maintenance and operation of the helicopter which caused the crash and the death of the girl.

The City filed a motion for summary adjudication requesting the trial court to determine, as a matter of law, that Plaintiffs' status as the uninsured owners of an involved motor vehicle precluded their recovery of noneconomic damages on both of their wrongful death theories. The trial court granted the motion, and Plaintiffs filed a petition for a writ of mandate, asking the appellate court to vacate the trial court's order.

Civil Code section 3333.4, enacted as part of Proposition 213, provides: "(a) [l]n any action to recover damages arising out of the operation or use of a motor vehicle, a person shall not recover non-economic losses to compensate for pain, suffering, inconvenience, physical impairment, disfigurement, and other nonpecuniary damages if ... [t]he injured person was the owner of a vehicle involved in the accident and the vehicle was not insured by the financial responsibility laws of this state."

The court previously held in Anaya v. Superior Court, 78 Cal. App. 4th 971 (2002), that the City, as the alleged negligent owner and operator of the sanitation truck, was potentially liable to Plaintiffs for the damages they sustained as the result of their daughter's death in the helicopter crash. According to the court, it was foreseeable that the victim of an automobile accident would have to be transported to a medical facility by automobile or helicopter and that, on the way, the victim may suffer further injuries. Consequently, the City could be found liable for the death of the girl based on the negligent operation of the sanitation truck.

In the present case, based on the reasoning of potential City liability for the death of the girl in Anaya 1, and the fact that Plaintiffs were the uninsured owners of the involved motor vehicle, the Court of Appeal held that Civil Code section 3333.4 barred Plaintiffsfrom the recovery of noneconomic damages on their claim arising out of the alleged negligent operation of the sanitation truck.

However, with respect to Plaintiffs' separate claim for damages based on the City's alleged negligent maintenance and operation of the helicopter, the court held that section 3333.4 did not preclude the recovery of noneconomic damages. According to the court, for purposes of the application of Proposition 213, the claim

14 lacked a necessary connection between Plaintiffs' injury (the death of their daughter) and Plaintiffs'"ownership" of the vehicle that was involved in the accident with the sanitation truck. Therefore, the girl's death did not "arise out of' the automobile accident within the meaning of section 3333.4, and thus, Plaintiffswere not barred by section 3333.4 from recovering noneconomic damages on their helicopter-related claims.

PUBLIC ENTITIES ARE NOT PRECLUDED FROM PURSUING CLAIMS FOR PUNITIVE DAMAGES

9. City of Glendale v. Superior Court, 95 Cal. App. 4th 1266 (2002).

Public entities are not barred by statute or the constitution from pursuing claims for punitive damages.

In this case, Plaintiff, an attorney who since resigned from the State Bar, sued a municipality and its redevelopment agency to recover a contingency fee in connection with his retention by the City to recover eminent domain funds owed by the County to the City. The City answered the complaint and filed a cross-complaint against Plaintiff for fraud, among other things. By its cross action, the City alleged that Plaintiff had colluded with Cross-defendant Pentoney to defraud the City, for which the City was entitled to recover general, special and punitive damages.

Plaintiff and Pentoney were prosecuted, and subsequently both pled no contest to accepting a bribe and bribing a ministerial officer.

Plaintiff and Pentoney filed a motion requesting the court to strike the punitive damage allegations from the cross-complaint, arguing that a municipality is barred from recovering punitive damages. The trial court granted the motion, and the City filed a petition for a writ of mandate.

The Court of Appeal issued a peremptory writ directing the trial court to vacate its order striking the punitive damage allegations from the cross-complaint and to issue a new order denying the motion.

The court concluded that the plain language of Civil Code section 3294 permits all plaintiffs,both public and private, to recover punitive damages in appropriate cases. The term "plaintiff' refers, among other things, to a "person who files a complaint or cross-complaint," and "person" includes "a public entity." Code Civ. Proc., §§ 481.180, 481.170. Therefore, the court held that the City was not barred by statute from pursuing a claim for punitive damages.

15 The court also held that although the Government Code bars all punitive damage awards against public entities (Gov. Code§ 818), but not against private parties, the lack of symmetry does not result in a denial of equal protection. According to the court, the distinction between public and private tortfeasors is rationally related to a legitimate government goal, "because requiring a public entity to pay punitive damages would ultimately serve to punish the group intended to benefit from the punishment."

16