City Attorneys Department League of California Cities Spring Conference May 2003

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

MUNICIPAL TORT AND CIVIL RIGHTS LITIGATION UPDATE

TABLE OF CONTENTS Page 1.

Doe 1 v. City of Murrieta, 102 Cal. App. 4th 899 (2002) A PUBLIC ENTITY CANNOT BE HELD VICARIOUSLY LIABLE FOR THE SEXUAL MISCONDUCT OF A POLICE OFFICER WHO DID NOT USE HIS POLICE AUTHORITY TO COMMIT THE ACTS .......................................... 1

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K. G. v. County of Riverside, 2003 DJDAR 2963, 2003 WL 1151655 (Fourth Appellate Dist., March 14, 2003) A PUBLIC ENTITY IS NOT LIABLE UNDER THE DOCTRINE OF RESPONDEAT SUPERIOR FOR A POLICE OFFICER’S MOLESTATION OF HIS STEPDAUGHTER.............................................................. 2

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Nguyen v. City of Westminster, 103 Cal. App. 4th 1161 (2002) PUBLIC ENTITIES ARE IMMUNE FROM LIABILITY UNDER STATE LAW FOR INJURIES RESULTING FROM A “COLLISION” INVOLVING A VEHICLE BEING PURSUED BY THE POLICE IF THEY HAVE “ADOPTED” A LEGALLY SUFFICIENT PURSUIT POLICY ............................... 3

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State of California v. Superior Court, 105 Cal. App. 4th1008 (2003) COMPLIANCE WITH THE CLAIMS PRESENTATION STATUTE IS NOT AN ELEMENT OF A CAUSE OF ACTION FOR DAMAGES AGAINST A PUBLIC ENTITY ............... 6

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TABLE OF CONTENTS (cont.) Page 5.

People ex rel. Department of Transportation v. Superior Court, 105 Cal. App. 4th 39 (2003) THE ABSENCE OF DILIGENCE DURING THE CLAIM-FILING PERIOD IS NOT EXCUSABLE NEGLECT FOR A FAILURE TO PRESENT A TIMELY TORT CLAIM .................................................................... 7

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Clark v. Fair Oaks Recreation & Park Dist., 106 Cal. App. 4th 336 (2003) THE USE OF PLAYGROUND EQUIPMENT IN A REASONABLY FORESEEABLE MANNER IS NOT A “HAZARDOUS RECREATIONAL ACTIVITY” ............................. 8

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Henderson v. City of Simi Valley, 305 F. 3d 1052 (9th Cir. 2002) POLICE OFFICERS WHO ENTERED A HOUSE TO KEEP THE PEACE DID NOT VIOLATE THE CONSTITUTIONAL RIGHTS OF THE HOMEOWNER .................. 9

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Broam v. Bogan, 320 F. 3d 1023 (9th Cir. 2003) PROSECUTORS ARE ABSOLUTELY IMMUNE FROM LIABILITY UNDER § 1983 FOR ACTIONS THAT ARE CLOSELY ASSOCIATED WITH THE JUDICIAL PROCESS ............................................................................. 11

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Kaahumanu v. County of Maui, 315 F. 3d 1215 (9th Cir. 2003) COUNTY COUNCIL MEMBERS WHO DENY A CONDITIONAL USE PERMIT ARE NOT ENTITLED TO ABSOLUTE LEGISLATIVE IMMUNITY UNDER § 1983 .......................................................... 13

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A PUBLIC ENTITY CANNOT BE HELD VICARIOUSLY LIABLE FOR THE SEXUAL MISCONDUCT OF A POLICE OFFICER WHO DID NOT USE HIS POLICE AUTHORITY TO COMMIT THE ACTS 1.

Doe 1 v. City of Murrieta, 102 Cal. App. 4th 899 (2002). A police officer's sexual misconduct will not support vicarious liability on the part of the city or police department when the sexual activity did not arise out of the exercise of police authority. However, the city and police department could be found liable based on a negligent failure of police supervisors to take protective measures to prevent the sexual exploitation. In this case, a police officer had consensual sexual encounters with two teenage girls during ride-alongs late at night. The girls were participants in a police explorer program designed to acquaint 14 to 18 year-old young women and men with law enforcement and encourage them to consider a law enforcement career. One girl went on 30 to 40 ride-alongs with the officer and the other girl went on 15 to 20 ride-alongs. The officer pled guilty to criminal charges of committing multiple acts of unlawful sexual intercourse and other sexual conduct with a minor. The two girls filed a civil action against the officer and the City, alleging negligence, battery, sexual battery, and intentional infliction of emotional distress. As to the City, Plaintiffs' causes of action were based on vicarious liability and negligent supervision. The trial court sustained the City's demurrer to the causes of action based on vicarious liability and the Court of Appeal affirmed. The appellate court noted that generally, the courts have not imposed vicarious liability on a employer for sexual assault or misconduct of employees. Under the doctrine of respondeat superior, the courts have held that sexual misconduct falls outside the scope of employment and should not be imputed to the employer. Juarez v. Boy Scouts of America, Inc., 81 Cal. App. 4th 377 (2000). However, the California Supreme Court in Mary M. v. City of Los Angeles, 54 Cal. 3d 202 (1991), created an exception to the general rule of no respondeat superior liability for the sexual misconduct of employees to cases involving on-duty police officers who assert law enforcement authority over members of the general public. In Mary M., an on-duty police officer stopped a woman for erratic driving. She had been drinking. The officer ordered her

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into his patrol car, drove her home, and raped her. Under those circumstances, the Court held that a jury could properly find that the City was vicariously liable for the officer’s misconduct. In this case, Plaintiffs argued that under Mary M., the City could be held vicariously liable for the officer’s acts of sexual misconduct with the minors while participating in the Police Department’s explorer program. However, the court rejected Plaintiff’s argument, and concluded that Mary M. was inapplicable. According to the court, “the sexual activity in question did not arise from an officer exercising his job-created law enforcement authority over the victims to force or coerce them to commit sexual acts. Rather, plaintiffs became infatuated with [the officer], pursued him, and consented to his sexual acts.” Therefore, according to the court, the officer’s sexual misconduct, as a matter of law, did not support vicarious liability against the City or the police department. The Court of Appeal, however, reversed the order of the trial court granting summary judgment to the City and the police department on the causes of action which alleged that the defendants were negligent in failing to protect Plaintiffs from being sexually exploited. According to the court, the City and its police department owed the explorers a duty to protect them from sexual exploitation by police officers, and there was a triable issue of fact as to whether police supervisors were negligent in failing to take protective measures to prevent sexual exploitation.

A PUBLIC ENTITY IS NOT LIABLE UNDER THE DOCTRINE OF RESPONDEAT SUPERIOR FOR A POLICE OFFICER’S MOLESTATION OF HIS STEPDAUGHTER 2.

K. G. v. County of Riverside, 2003 DJDAR 2963, 2003 WL 1151655 (Fourth Appellate Dist., March 14, 2003). A police officer’s acts of sexual misconduct with his young stepdaughter were not committed within the scope of employment for which a public entity can be held liable under the doctrine of respondeat superior. In this case, a county sheriff’s deputy molested his stepdaughter three or four times a week for a period of approximately four years. The abuses occurred at home, motels, parks, and in the deputy’s patrol car. After the stepdaughter told her mother that she had been sexually abused, the deputy was convicted for sexually abusing her. The girl filed an action against the County alleging, among other things, assault, battery, false imprisonment, and intentional infliction of emotional 2

distress. She alleged in her complaint that the deputy sexually abused her within the scope of his employment as a sheriff’s deputy, and therefore the County was vicariously liable for his wrongful acts. The matter proceeded to trial on Plaintiff’s vicarious liability claim against the County. The trial court denied the County’s motions for nonsuit following Plaintiff’s opening statement, and again after Plaintiff completed her case. However, the trial court rejected Plaintiff’s jury instructions on respondeat superior and accepted the instructions proposed by the County. Plaintiff then requested the trial court to grant the County’s previously denied nonsuit motions, concluding that, based on the instructions the court intended to give, Plaintiff could not prevail. The court granted nonsuit as to the County and entered judgment for the County. The Court of Appeal held that the trial court did not commit instructional error and affirmed the judgment in favor of the County. According to the Court of Appeal, the evidence established as a matter of law that the deputy’s acts of sexual misconduct were not committed within the scope of employment, as they were not committed against a member of the general public unknown to the deputy prior to the sexual encounter, and did not arise while the deputy was enforcing the law. Rather, it involved sexual misconduct committed against a member of the officer’s family. Since the victim was personally known to the deputy through a preexisting relationship, and since the misconduct did not arise from the deputy’s exercise of his law enforcement authority, the court concluded that the case of Mary M. v. City of Los Angeles, 54 Cal. App. 3d 202 (1991), was inapplicable to the facts of this case. Therefore, according to the court, the County could not be held vicariously liable for the personal acts of the deputy.

PUBLIC ENTITIES ARE IMMUNE FROM LIABILITY UNDER STATE LAW FOR INJURIES RESULTING FROM A “COLLISION” INVOLVING A VEHICLE BEING PURSUED BY THE POLICE IF THEY HAVE “ADOPTED” A LEGALLY SUFFICIENT PURSUIT POLICY 3.

Nguyen v. City of Westminster, 103 Cal. App. 4th 1161 (2002). The adoption of a written policy on vehicular pursuits that complies with the Vehicle Code requirements provides an immunity for public entities for

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death or injuries resulting from a collision of a vehicle being pursued by the police. In this case, police officers pursued a stolen van which the officers had attempted to stop. The van entered a high school parking lot just as classes had ended, and an officer followed it onto the school grounds. Both vehicles traversed a parking lot and an adjacent athletic field, and the van headed towards a gate leading to a second parking lot where several students had congregated. The police cruiser rammed the van twice and the van hit a pool of water. The van then struck a trash dumpster, propelling it into a person who was standing nearby. The person was seriously injured, and later died from his injuries. The decedent’s heirs brought a wrongful death action against the City, alleging that the officer was negligent in the manner in which he conducted the pursuit. The trial court granted summary judgment to the City on the ground that it was immune from liability under Vehicle Code section 17004.7. The Court of Appeal affirmed summary judgment in favor of the City. Vehicle Code Section 17004.7(b) provides: A public agency employing peace officers which adopts a written policy on vehicular pursuits complying with subdivision (c) is immune from liability for civil damages for personal injury to or death of any person or damage to property resulting from the collision of a vehicle being operated by an actual or suspected violator of the law who is being, has been, or believes he or she is being or has been, pursued by a peace officer employed by the public entity in a motor vehicle. The court concluded that the City’s written pursuit policy complied with the statutory requirements of providing sufficient guidelines to officers on when to initiate or terminate a pursuit. The policy directed supervising officers and the officers participating in a pursuit to “carefully and continuously consider” eleven factors “in determining whether to initiate, limit, discontinue or otherwise control the pursuit.” According to the court, the specific and objective factors officers must consider when deciding to begin, continue, control, or end a vehicle pursuit provided sufficient guidelines limiting the discretion of the officers in pursuit situations. The court rejected Plaintiffs’ argument that the immunity did not apply because the officer failed to comply with the pursuit policy on this occasion. The court noted that the statute is clear: if the agency adopts a pursuit policy which meets the statutory requirements, then immunity

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results whether or not the policy is implemented or followed in a particular pursuit. The court also rejected Plaintiffs’ contention that section 17004.7 did not apply in this case because decedent was injured when he was struck by a trash bin during the pursuit and not the stolen van being pursued by the police. According to the court, whether the stolen van struck the dumpster because the patrol car rammed it, or because the van lost control upon hitting the pool of water, the van’s collision with the dumpster caused the dumpster to strike decedent. Therefore, the court held that decedent’s injuries resulted from the “collision of a vehicle” being operated by a fleeing suspect, and the immunity in section 17004.7 applied. --Comment: In Nguyen, the court expressed its “displeasure” with the immunity contained in Vehicle Code section 17004.7(b). According to the court, the law grants a “get out of liability free card” to public entities that go through the formality of adopting a pursuit policy, as the statute does not require a public entity to implement the policy through training or other means, or require that a particular pursuit comply with the policy. The mere “adoption” of a pursuit policy that satisfies the statutory guidelines is sufficient to provide an immunity. The court urged the Legislature “to revisit this statute and seriously reconsider the balance between public entity immunity and public safety. The balance appears to have shifted too far toward immunity and left public safety, as well as compensation for innocent victims, twisting in the wind.” Police vehicular pursuits sometimes end tragically. There are few areas of police practice that have raised as much public comment, concern, outcry, and debate as vehicular pursuits. It is imperative that police department written pursuit policies be reviewed to ensure that they comply with the minimum requirements in section 17004.7(c) pertaining to: (1) the circumstances when a pursuit may be initiated and when pursuits should be terminated; (2) supervisory control of the pursuit; (3) procedures for designating the primary and secondary units; and (4) procedures for coordinating operations with other jurisdictions. Section 17004.7(b) was intended “to encourage agencies to adopt express guidelines which should reduce the frequency of accidents, while leaving to these agencies the fundamental law enforcement decisions about when to undertake a pursuit, free from threats of liability.” Kishida v. State of California, 229 Cal. App. 3d 329, 335 (1991). To effectuate the stated purpose of the statute, the adequacy

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and frequency of police department pursuit training programs should be reviewed, and an in-house procedure for reviewing and evaluating all police vehicular pursuits should be implemented.

COMPLIANCE WITH THE CLAIMS PRESENTATION STATUTE IS NOT AN ELEMENT OF A CAUSE OF ACTION FOR DAMAGES AGAINST A PUBLIC ENTITY 4.

State of California v. Superior Court, 105 Cal. App. 4th 1008 (2003).

Compliance with the Tort Claims Act is merely a procedural requirement which is not an element of a cause of action for tort damages against a public entity. In this case, Plaintiff was a prison inmate who brought a tort action against the State of California and various state employees. Plaintiff failed to plead that he complied with the requirements of the Tort Claims Act (Govt. Code, § 900, et seq.). The State filed a demurrer to the complaint on the ground that Plaintiff failed to allege that he had filed a claim with the State before filing the lawsuit. The trial court overruled the demurrer and the Court of Appeal denied the State’s petition for writ of mandate. According to the court, although a complaint will be deemed to fail to state facts sufficient to constitute a cause of action when the complaint shows, on its face, that the cause of action is barred by the applicable statute of limitations, a failure to allege compliance with the claims presentation statutes is not a recognized ground for demurrer. In Bahten v. County of Merced, 59 Cal. App. 3d 101 (1976), the court held that compliance with the tort claims statutes “being merely a procedural prerequisite to suit and not an element of a cause of action, need not be alleged in the complaint.” Although other cases have held that compliance with the claim requirements is an essential element of a cause of action for damages against a public entity and that a complaint is subject to a general demurrer if the plaintiff fails to allege compliance with the Tort Claims Act or circumstances excusing compliance, the court in this case did not see a good reason for not continuing to follow Bahten. --Comment: Noncompliance with the claims requirements is an affirmative defense which should be asserted by public entities, and if the facts pertaining to compliance with the claims statute are undisputed, the defense of noncompliance can be raised on a motion for summary judgment.

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THE ABSENCE OF DILIGENCE DURING THE CLAIM-FILING PERIOD IS NOT EXCUSABLE NEGLECT FOR A FAILURE TO PRESENT A TIMELY TORT CLAIM 5.

People ex rel. Department of Transportation v. Superior Court, 105 Cal. App. 4th 39 (2003). A failure to take action in pursuit of a claim within the six-month claim-filing period does not constitute excusable neglect for a failure to present a timely tort claim. In this case, Petitioner and his wife were traveling on a State highway when they noticed a cloud of smoke, which obscured their vision on the highway. Petitioner’s wife drove into the smoke and became disoriented. She drove the vehicle onto the shoulder of the road and stopped. When Petitioner got out of the vehicle, his clothing caught fire, but he was able to extinguish the flames. His wife perished when the car caught fire. Petitioner was hospitalized after the incident. He understood from newspaper accounts that the fire may have been set by an arsonist. Petitioner did not seek legal counsel for at least six months. Approximately seven months after the incident, Petitioner discussed his wife’s death with his barber. The barber suggested that Petitioner consult with another customer who was an attorney specializing in personal injury and wrongful death cases. Petitioner immediately consulted with the attorney and was advised that he had a potential claim against the State of California based on negligent maintenance of the weeds and shrubbery on the roadside which represented a dangerous condition no matter how the fire started. Approximately eight months after the incident, Petitioner and his two children filed an application to present a late claim to the State. The State failed to approve or deny the claim within 45 days, thus resulting in its denial by operation of law. The three claimants then petitioned the superior court for relief from the requirements of the claim-filing statute. Relief was requested on the ground that Petitioner’s failure to present a tort claim within the six-month limitation period was due to “mistake, inadvertence, surprise, or excusable neglect.” (Govt. Code § 946.6, subd. (c)(1).) The trial court issued an order granting the petition.

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The State filed a petition for peremptory writ of mandate compelling the superior court to vacate its order, and the Court of Appeal granted the relief requested by the State. The Court of Appeal held that the trial court abused its discretion in granting the petition, and relieving Petitioner and his two children from the requirements of the claims presentation statutes. According to the court, Petitioner did not exercise any diligence at all to retain counsel or investigate the potential responsibility of other parties during the six-month claim-filing period. A failure to exercise due diligence to obtain legal counsel or take any action during the six-month period does not constitute excusable neglect. Munoz v. State of California, 33 Cal. App. 4th 1767, 1778-1779 (1995). According to the court, Petitioner did not act as a reasonably prudent person under the circumstances during the six-month claim-filing period. There was no evidence of diligence, let alone reasonable diligence, and thus, the evidence did not meet the standard to constitute excusable neglect for the failure to present a timely tort claim.

THE USE OF PLAYGROUND EQUIPMENT IN A REASONABLY FORESEEABLE MANNER IS NOT A “HAZARDOUS RECREATIONAL ACTIVITY” 6.

Clark v. Fair Oaks Recreation & Park Dist., 106 Cal. App. 4th 336 (2003). The ordinary use of playground equipment under the facts of this case was not a “hazardous recreational activity” for which a public entity is immune from liability for personal injuries. In this case, Plaintiff, age 10, broke his leg in an accident on public playground equipment maintained by a park district. The equipment consisted of several different types of apparatus joined together, including platforms, swings, a tire swing, a slide, and an arch climber leading up to one of the platforms. An arch climber is an apparatus made up of convex side supports, rungs, and open spaces between the rungs; it curves as it ascends. Children were expected to use all four limbs to climb up and down on it, as it had no handrails. While Plaintiff played on the arch climber and descended the apparatus facing toward it, and using all four limbs (a normal way of playing on it), his left foot missed a rung and his leg slipped through the space between two rungs. When he tried to extract it, his femur snapped. There was no evidence of prior accidents on the arch climber.

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An inspection of the playground equipment by a Park District supervisor approximately five months before the accident disclosed that the spacing between the rungs of the arch climber was improper and that the spacing did not comply with guidelines promulgated by the State for public playground equipment. If the spacing had been in compliance with the guidelines, the accident probably would not have occurred, or if it had, it would have been less likely to cause a fracture. Through his guardian ad litem, Plaintiff sued the Park District, alleging a dangerous condition of public property. After a bench trial, the trial court found the Park District liable for maintaining a dangerous condition of public property. In regard to the District’s affirmative defense of immunity from liability for an injury incurred by a participant in a “hazardous recreational activity,” the court determined that based on the evidence presented, the immunity defense was inapplicable. The Court of Appeal affirmed. Government Code section 831.7 provides, among other things, that a public entity is not liable for injuries to any person who participates in a recreational activity which creates a “substantial risk of injury” to the participant, or who participates in any of the activities that are specifically listed in the statute. The use of playground equipment is not one of the specific activities listed in section 831.7. Here, according to the court, the Park District failed to produce sufficient evidence to establish that the use of playground equipment in a normal and reasonably foreseeable manner created a “substantial risk of injury” within the meaning of section 831.7. The absence of other accidents while engaging in the activity was an important factor that caused the court to conclude that the use of the playground equipment did not create a “substantial risk of injury.” Therefore, according to the court, the District did not satisfy its burden of proving the affirmative defense of absolute immunity for injuries resulting from the participation in a “hazardous recreational activity.”

POLICE OFFICERS WHO ENTERED A HOUSE TO KEEP THE PEACE DID NOT VIOLATE THE CONSTITUTIONAL RIGHTS OF THE HOMEOWNER 7.

Henderson v. City of Simi Valley, 305 F. 3d 1052 (9th Cir. 2002). A police officer's entry into a residence to keep the peace was reasonable under the “special needs” exception to the Fourth Amendment's warrant requirement.

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In this case, a court Order issued pursuant to California's Domestic Violence Prevention Act granted, among other things, a minor daughter exclusive possession of certain personal belongings. The belongings were located in the home of the daughter's mother. The day after the Order was obtained, the daughter requested that police officers escort her, and stand by while she retrieved the property from her mother's house pursuant to the Order. Upon arrival at the residence, the officers observed a pile of clothing outside the house. One officer tried to explain the Order to the mother even though the mother was holding her copy of the Order. The mother stated that her daughter could only have the clothes, some cats, and some pigs, but nothing else. From the beginning of the encounter, the mother was yelling and screaming. The mother then began to untie two Rottweilers from inside the house and three officers entered the house to prevent her from releasing the dogs. She fought the officers and eventually she was handcuffed, taken outside, and placed in a police car. While one officer transported the mother to the police station, the other two officers entered the residence a second time to accompany the daughter while she retrieved her belongings. The officers were concerned that an unidentified male, previously observed in the residence, could be a threat to the daughter. The daughter gathered her property without incident, with the officers only entering the living room and the daughter's bedroom. The mother brought an action under § 1983 against the City and the officers, alleging essentially an unlawful entry into the residence, false arrest and excessive force. The district court granted summary judgment to the defendant officers and the City on the ground that the actions of the officers were reasonable. The mother appealed the district court ruling, contending that the officers' second entry into her residence violated her Fourth Amendment rights, and that the officers used excessive force when they arrested her. The Court of Appeals affirmed summary judgment in favor of the officers and the City. The court concluded that “special needs,” beyond the normal need for law enforcement existed, and that those special needs made the warrant and the probable cause requirement impracticable. In balancing the interests of the mother and the officers, the court held that the officers' entry into the home was reasonable and did not run afoul of the Fourth Amendment.

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The court observed that domestic violence has become a “major social problem,” and that the government's substantial interest in addressing domestic violence presents a special need that may justify departure from the ordinary warrant and probable cause requirements. Here, the officers did not enter the house to look for evidence of criminal wrongdoing, rather they merely served as keepers of the peace. Under those circumstances, according to the court, “the officers were engaged outside the ordinary needs of law enforcement. Keeping the peace while a minor child exercises her rights pursuant to a court order is not akin to typical law enforcement functions.” The court held that probable cause determinations “are peculiarly unsuited to the task of maintaining the peace while effectuating a court order,” and that requiring the officers to obtain a warrant would have been impracticable and superfluous. The officers already possessed a court order which described the property rights protected, and the delay inherent in obtaining a warrant would delay the officers' ability to respond quickly to potentially violent violations of the court order. According to the court, the mother’s legitimate privacy expectations were outweighed by the government's compelling interests in maintaining the peace and good order through enforcement of a domestic violence order. The officers' intrusion into the house was limited to those areas where entry was required to retrieve the daughter's property. Therefore, the officers' actions did not violate the mother’s Fourth Amendment rights.

PROSECUTORS ARE ABSOLUTELY IMMUNE FROM LIABILITY UNDER § 1983 FOR ACTIONS THAT ARE CLOSELY ASSOCIATED WITH THE JUDICIAL PROCESS 8.

Broam v. Bogan, 320 F. 3d 1023 (9th Cir. 2003). Prosecutors are absolutely immune from liability under § 1983 for violating a person’s constitutional rights when they engage in activities intimately associated with the judicial phase of the criminal process. In this case, Plaintiffs’ first amended complaint alleged essentially that a young boy had accused them (Plaintiffs) of physically and sexually abusing him, and that the Defendants, a deputy sheriff and a deputy district attorney, conspired to deprive Plaintiffs of due process of law in their investigation of the accusations.

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Plaintiffs alleged a number of improper and unlawful acts that were committed by the Defendants, including (1) the sheriff’s deputy deliberately failed to record his interviews of the boy; (2) both Defendants unlawfully surreptitiously tape recorded conversations of the Plaintiffs while they were in the same jail cell at a time when the Defendants were aware that Plaintiffs were represented by counsel; (3) Defendants, knowing that the recording revealed that Plaintiffs had denied their guilt, misplaced the tape recording, and its whereabouts were unknown for a considerable period of time; (4) Defendants failed to interview two witnesses; and (5) when the boy attempted to recant his accusations, the deputy stopped him, and did not record, document, or advise Plaintiffs’ counsel of the renunciation. The complaint did not specify the dates when the alleged unlawful acts were committed. Plaintiffs were convicted at a jury trial and served eight years in prison. They were released after the boy recanted his testimony accusing Plaintiffs of sexual abuse. Plaintiffs’ first amended complaint brought under § 1983 alleged that the actions of the sheriff’s deputy and the deputy district attorney violated Plaintiffs’ constitutional rights. The district court dismissed the complaint for failure to state a claim upon which relief could be granted based primarily on absolute and qualified immunity. The Ninth Circuit reversed the district court’s dismissal of the complaint. According to the court, the dates of the alleged unconstitutional acts must be known in order to enable the court to determine whether Plaintiffs could state a cause of action as to some of their claims. Since the complaint did not state the dates of the alleged acts committed by Defendants, the court concluded that the interests of justice would be served by giving Plaintiffs an opportunity to correct that omission. This case contains a good discussion of the scope of the immunity enjoyed by prosecutors under § 1983. A state prosecutor is entitled to absolute immunity from liability under § 1983 when engaged in activities “intimately associated with the judicial phase of the criminal process.” Imbler v. Pachtman, 424 U.S. 409, 430 (1976). The question is “whether the prosecutor’s actions are closely associated with the judicial process.” Milstein v. Cooley, 257 F. 3d 1004, 1009 (9th Cir. 2001). For example, prosecutors are absolutely immune from liability for failure to investigate the accusations against a defendant before filing charges, for the knowing use of false testimony at trial, or for a decision not to preserve or turn over exculpatory material in violation of due process.

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However, a prosecutor is granted only qualified immunity when performing investigatory or administrative functions, or is essentially functioning as a police officer or detective. The gathering of physical evidence and conducting interrogations to determine whether a crime has been committed and whether probable cause exists to arrest a suspect would constitute investigative functions for which a prosecutor would be entitled to qualified, as opposed to absolute immunity. However, if probable cause already exists to arrest a suspect, the gathering of evidence or failure to gather evidence in preparing the case for trial would be protected by absolute immunity.

COUNTY COUNCIL MEMBERS WHO DENY A CONDITIONAL USE PERMIT ARE NOT ENTITLED TO ABSOLUTE LEGISLATIVE IMMUNITY UNDER § 1983 9.

Kaahumanu v. County of Maui, 315 F. 3d 1215 (9th Cir. 2003). The members of a county council are not entitled to absolute legislative immunity under § 1983 for their decision not to grant a conditional use permit [CUP]. In this case, Plaintiffs applied for a conditional use permit to conduct a commercial wedding business on beachfront property, which was located in a residential district. The CUP could only be granted through the enactment of an ordinance by the Maui County Council. After an administrative review of Plaintiffs’ application, the Maui Planning Commission recommended to the Council that the CUP be approved. The Land Use Committee, a subcommittee of the Council, held a two-hour public meeting at which some members of the public argued against the permit. At the conclusion of the meeting, the Land Use Committee recommended denial of the permit. The Maui County Council voted to reject Plaintiff’s application that same day. Five months after Plaintiffs’ application for a CUP was denied, Plaintiffs were cited for continuing to conduct commercial weddings on the beachfront property and fined $1,000. Plaintiffs filed suit for monetary, declaratory, and injunctive relief against the Maui County Council and its members in their individual and official capacities under § 1983 for violation of the First, Fifth, and Fourteenth Amendments. The Council members moved to dismiss the claims brought against them in their individual and official capacities. They argued that the individual-capacity claims were barred by legislative immunity and that

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the official-capacity claims were duplicative of the claims against the County of Maui. The district court denied the motion to dismiss the individual-capacity claims on the ground of legislative immunity, but granted the motion to dismiss the official-capacity claims. The Ninth Circuit affirmed the denial of the motion to dismiss the claims brought against the Council members in their individual capacity. The court held that the Council’s decision to deny the CUP was administrative, and therefore, the individual members of the Council were not entitled to legislative immunity. In Bogan v. Scott-Harris, 523 U.S. 44, 49 (1998), the Supreme Court held that local legislators are “absolutely immune from suit under § 1983 for their legislative activities.” However, not every act by a legislator is necessarily legislative in nature. “Whether an act is legislative turns on the nature of the act, rather than on the motive or intent of the official performing it.” Bogan, 523 U.S. at 54. Here, the court determined that the decision of the Council denying a CUP was administrative or executive, not legislative. According to the court, the Council’s decision was “ad hoc,” as it was taken “based on the circumstances of the particular case and did not effectuate policy or create binding rule of conduct.” A decision to enact or reject an ordinance granting a CUP is made on a case-by-case basis and does not apply to the public at large in Maui County. The ordinance here would have affected only a single permit and a single parcel of land. Further, according to the court, since the decision denying the issuance of a CUP did not change Maui’s comprehensive zoning ordinance or policies underlying it, or affect the County’s budgetary priorities or the services the County provided to residents, the decision did not bear all the hallmarks of traditional legislation. Since the Maui County Council’s decision not to grant the CUP was “ad hoc” rather than one of policy, affected only the Plaintiffs, and did not bear all the hallmarks of traditional legislation, the decision was administrative, not legislative. Therefore, the individual members of the Council were not entitled to absolute legislative immunity. --Comment: The court noted in a footnote that it had no occasion to determine whether the Council members were entitled to qualified immunity in this case or whether Plaintiffs’ claims had merit. The doctrine of qualified immunity is applicable to public officials, including legislators. Chateaubriand v. Gaspard, 97 F. 3d 1218 (9th Cir. 1996).

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