Government Tort and Civil Rights

Neutral Government Policy for Privately Led Prayers at City Council Meetings Does Not Violate the Establishment Clause of the First Amendment or the California Constitution

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On March 26, 2013, the Ninth Circuit affirmed a district court ruling upholding the constitutionality of the City of Lancaster's policy and practice of allowing local congregations of any denomination to give an invocation at the beginning of City Council meetings.  Plaintiffs challenged the policy and practice as a violation of the Establishment Clause of the U.S. Constitution and the California Constitution because the invocations used sectarian references and because a majority of invocations were given by Christian denominations, which they contended had the effect of promoting one religious sect over others.  The Ninth Circuit disagreed, finding that neither the City's policy nor practice promoted any particular religion in violation of the Establishment Clause or the California Constitution (which employs the same language and standards as the Establishment Clause). 

Mobilehome Park Rent Control – the Battle Continues

The battle between private property owners and municipalities over the constitutionality of rent control ordinances for mobile home parks wages on. Owners of a mobilehome park in the City of Goleta, the Guggenheims, have filed a petition for certiorari seeking U.S. Supreme Court review of the Ninth Circuit’s rejection of their Fifth Amendment takings claims in July 2010. Their petition asks the Supreme Court to reverse the Ninth Circuit’s decision and find that the City’s ordinance caused a taking of their property. (Click here to see the Guggenheim v. City of Goleta petition for certiorari.)

In 1997, the Guggenheims purchased the mobilehome park subject to rent control under a County ordinance. The ordinance was adopted by the City of Goleta when it incorporated in 2002. The Guggenheims promptly sued the City claiming the rent control ordinance caused a taking of their property without payment of just compensation. The trial court granted summary judgment for the City, but a three judge panel of the Ninth Circuit reversed in a controversial decision. The Ninth Circuit granted the City’s request for a rehearing en banc and affirmed the trial court decision in favor of the City.

The Guggenheims’ argue that the Ninth Circuit’s en banc decision conflicts with the Supreme Court’s holding in Palazzolo v. Rhode Island, 533 U.S. 606 (2001), conflicts with decisions from other federal and state appellate courts and is “a major blow to private property rights.” In essence, the Guggenheims seek to restrict the authority of local governments to adopt land use regulations affecting private property unless the government compensates the property owner, and/or any subsequent owner, for any economic impact of the regulation either at the time of adoption or at any time in the future.

Annoying Civic-Mindedness or Credible Threat of Violence?

Can a city restrict the conduct of a self-described civic-minded individual, with a history of flamboyant speech and dramatic behavior in his communications with the city, without running afoul of free speech rights? In City of San Jose v. William Garbett, filed on November 24, 2010, the Sixth Appellate District Court of Appeal says yes, when the conduct meets the conditions for an injunction under Code of Civil Procedure section 527.8.

Section 527.8, also known as the Workplace Violence Safety Act, allows any employer to seek a temporary restraining order and injunction on behalf of an employee who “has suffered unlawful violence or a credible threat of violence from any individual” at the workplace. For purposes of the statute, a city is an “employer.” (Code Civ. Proc. § 527.8(d).) “Unlawful violence” is defined as “any assault or battery, or stalking as prohibited in Section 646.9 of the Penal Code, …” (§ 527.8(b)(1).) “Credible threat of violence” is defined as “a knowing and willful statement or course of conduct that would place a reasonable person in fear for his or her safety, or the safety of his or her immediate family, and that serves no legitimate purpose.” (§ 527.8(b)(2).) To obtain an injunction, an employer must establish, by clear and convincing evidence, not only that the defendant engaged in unlawful conduct within the meaning of the statute, but also that great or irreparable harm would result to the employee if the injunction were not issued due to the reasonable probability unlawful violence will occur in the future. (Code Civ. Proc. § 527.8(f); Scripps Health v. Marin (1999) 72 Cal.App.4th 324, 335.)

In Garbett, the City of San Jose sought 14 injunctions (and temporary restraining orders) on behalf of the city’s deputy city clerk, the mayor and city council. The city submitted evidence that the appellant, William Garbett, age 70, had a long history of grievances with the city going back many years, and that the appellant made a “credible threat of violence” toward a deputy city clerk, and other city employees under section 527.8(b)(2). In addition to evidence that the appellant regularly visited the city clerk’s office and attended city council meetings, expressed fanciful ideas, appeared agitated or angry or resentful toward the city, and had inappropriate verbal or physical outbursts, there was additional evidence that this antagonism escalated. Specifically, there was evidence that the appellant threatened a deputy city clerk by stating that his only recourse to change policy in San Jose was to take action similar to that of one angry man in Kirkwood, Missouri, who a few months prior had shot and killed several people at Kirkwood City Hall. The deputy clerk, who understood the reference, reportedly felt threatened and feared for her safety and the safety of the mayor and city council. After she reported the event, the city searched the appellant when he attempted to enter council chambers and implemented extra monitoring procedures or security measures.

The trial judge granted the city’s initial requests for interim restraining orders. Following an evidentiary hearing – which included the testimony of several witnesses who had previous interactions with the appellant and two expert witnesses – the trial judge also issued 14 injunctions restricting the conduct of the appellant toward the deputy city clerk, mayor and council.

Each injunction included orders requiring the appellant to stay 300 yards from the protected individuals and City Hall. The injunction also included specified exceptions which would allow appellant to attend public City Council. Those exceptions included requiring appellant to enter City Hall through a specified entrance, be subject to a search before entering the City Council chambers, sit in a specific row, use a particular stairway during meetings, and communicate with the City Clerk’s office by mail or proxy.

Appellant sought review of the injunctions contending, in part, that the orders restricting his conduct and movements violated his rights to free speech under the First Amendment to the United States Constitution and the California Constitution, and represented the city’s attempt to “curtail what amounts to annoying behavior.”

The Court of Appeal affirmed all 14 injunctions including the restrictions on the appellant’s movements. The Court disagreed with the appellant’s First Amendment arguments, relying on California Supreme Court precedent establishing the right of the state to penalize willful threats to perform illegal acts, even those consisting of pure speech. In re M.S. (1995) 10 Cal.4th 698, 710.) The Court also found substantial evidence to support the court’s factual findings on the requisite elements of section 527.8, namely that the appellant had expressed a credible threat of violence toward city employees that was not constitutionally protected speech; that this conduct caused the city employees to experience fear; and a likelihood of future harm.

When the appellant protested that he did not intend to threaten anyone, the Court dismissed this argument, concluding that the defendant’s subjective intent is not required for the conduct to be deemed a credible threat under the current definition found in section 527.8(b)(2).

Appellant further challenged the injunctions on overbreadth grounds, taking issue with the limitations on his access to the City Hall building and his movements within the council chambers. The Court nevertheless upheld these restrictions, deferring to the trial judge’s view of the evidence and factual findings on the requisite elements of section 527.8, and the lower court’s considerable discretion to fashion orders aimed at preventing harm of the nature suggested by the threats.

The Garbett case establishes good law for public entities which seek to curtail repeat offenders or conduct that escalates or develops into what has been classified as more than merely annoying or unprotected speech.

Court Finds Statutes Favoring Speech Related To Labor Disputes Unconstitutional

Given the California appellate court's recent ruling in Ralphs Grocery Company v. United Food and Commercial Workers Union Local 8 (January 19, 2010) 2010 DJDAR 11199, police departments may now receive increased requests to remove peaceful picketers in labor disputes from private property. While this case may provide authority for police officers to remove such picketers from private property, cities should seek individualized legal advice on this issue when altering current policies and procedures. The California appellate court specifically found that a Ralphs-owned grocery store was a private forum not subject to heightened First Amendment scrutiny, concluding that labor union picketers were trespassing on private property when they violated Ralphs's protest restrictions. In reaching this decision, the appellate court ruled that statutes that protect or favor labor union speech over other forms of speech violated the First and Fourteenth Amendments of the Constitution.

The Court started with a public forum evaluation under Pruneyard and later case law. Even though the Ralphs-owned store is part of a larger shopping center, the entrance and apron were not "designed and presented to the public as public meeting places," nor did these areas "act as the functional equivalent of a traditional public forum." The court found that the setting of the store within a shopping center with a number of other retailers and restaurants, some of which provide outdoor seating, was similar to other appellate court decisions holding that the entrance areas and aprons to stand-alone stores in shopping centers are private fora. Significantly, the court also explained that as a private forum, Ralphs could limit or prohibit certain speech even if they selectively allowed other groups to collect signatures or donations for other causes.

The trial court's refusal to grant injunctive relief was grounded in the Moscone Act (Code of Civil Procedure § 527.3) and Labor Code § 1138.1, which limits a court's ability to grant injunctive relief in cases involving labor disputes. Sacramento police officers were unwilling to remove the peaceful picketers from Ralph's private property presumably because of the Moscone Act and Labor Code § 1138.1. Relying on Supreme Court precedent that found preferential treatment of speech regarding labor disputes to be unconstitutional content-based discrimination under the First and Fourteenth Amendments, the appellate court declared both the Moscone Act and Labor Code § 1138.1 unconstitutional.

This case highlights the fact specific inquiry required to determine whether retailers within a private shopping center qualify as a public forum. The case notably explains that if the forum is private, the private entity may selectively enforce its no solicitation policies. Additionally, and quite significantly, the case holds that parties seeking injunctive or other equitable relief from labor union demonstrations will no longer be required to meet the heightened requirements of the Moscone Act and Labor Code § 1138.1. The impact of this ruling is likely to be that police departments will receive more frequent calls to remove peaceful picketers in labor disputes from private property. Given, however, the many nuances of First Amendment jurisprudence and that this decision is an appellate court decision, (subject to being disagreed with by a different appellate court on the same issue in a different case or subject to being overruled by the California Supreme Court ) police departments would be wise to seek specific legal advice on this issue before changing current policies regarding the removal of peaceful picketers in labor disputes from private property.

California Supreme Court Declines to Review Opinion Making it Harder for Cities to Defeat Dangerous-Condition-of-Property Claims

The state Supreme Court last week declined to review or to depublish the court of appeal's opinion in Lane v. City of Sacramento (2010) 183 Cal.App.4th 1337. Lane holds that, when a plaintiff alleges that a dangerous condition of public property caused injury, a lack of prior accident claims is not enough to enable the public entity to defeat the claim on summary judgment. We blogged about Lane and its significance when it appeared. The denial of review means that Lane will stand as California law binding on all state trial courts. However, the denial does not mean that the California Supreme Court has endorsed the Lane rule. Thus, other courts of appeal could reject the rule in future cases—though that is unusual. We will continue to track this issue.

U.S. Supreme Court Holds City's Review of Employee Messages on City Pager Was Reasonable in Circumstances, But Avoids Clarifying General Standards

in city of ontario v. quon, the u.s. supreme court issued a narrow ruling that the city's review of a swat officer's text messages sent over a city-issued pager was reasonable in the circumstances of that case, and thus did not violate the fourth amendment to the constitution. but the court avoided answering two broader questions about how courts should analyze non-investigatory, work-related searches by public employers—questions on which public entities had hoped quon would provide guidance. the questions quon left open are: (1) when do public employees have a “reasonable expectation of privacy” in their offices or electronic communications; and (2) if an employee has such an expectation, what is the test for whether an employer’s search was reasonable?

read more here.

Cities Can Prohibit Solicitions of Employment Between Day Laborers and Drivers to Protect Traffic Flow and Public Safety

The Ninth Circuit has upheld an ordinance adopted by the City of Redondo Beach which prohibits solicitations of employment (as well as business and contributions) between day laborers and occupents of motor vehicles on streets or highways. Both the trial court and the Ninth Circuit in Comite De Jornaleros De Redondo Beach v. City of Redondo Beach, No.

Will the Vacancy Control Provisions in Goleta's Rent Control Ordinance for Mobile Home Parks be Upheld in the Latest Court Battle?

The Ninth Circuit is poised to reconsider its controversial decision that a vacancy control provision in a rent control ordinance for mobile home parks in the City of Goleta caused a taking of private property under the Fifth Amendment. The split decision by a three judge panel in Guggenheim v.

California Supreme Court to Decide If ADA Bars Automatic Fee Awards to Successful Defendants in California Disability Cases

The California Supreme Court has granted review in a case that will determine when public entities (and anyone else) can recover attorneys’ fees for successfully defending themselves against suits under California law by persons with disabilities regarding access to public facilities. The case is Jankey v. Lee, No. S180890. The issue, which has divided state and federal courts, is whether federal law—specifically, the ADA—pre-empts a California statute that requires an award of attorneys’ fees to any prevailing defendant in a suit seeking an injunction regarding access.

The California Disabled Persons Act (CDPA) authorizes suits for injunctive relief by anyone with a disability who is denied full use of public places or facilities, such as streets, sidewalks, transportation, and medical facilities. The provision authorizing injunctive actions automatically awards fees to a prevailing plaintiff or defendant—even if the suit was not frivolous. That differs from California disability laws governing damages actions, which never allow fees for defendants. And it differs from the federal ADA, which only permits fee awards against plaintiffs if their suits were frivolous.

The Ninth Circuit Court of Appeals held last year in Hubbard v. SoBreck, LLC (9th Cir. 2009) 554 F.3d 742 that awarding defendants fees for nonfrivolous injunctive actions under the CDPA is “inconsistent with, and therefore preempted by, the ADA.” In February, i n Jankey v. Lee (2010) 181 Cal.App.4th 1173 , rev. granted May 12, 2010, S180890, a California Court of Appeal disagreed. It noted that California disability law lets plaintiffs choose among many claims and remedies; they only risk a fee award if they choose to seek an injunction. And California disability law as a whole is more protective than the ADA, so preemption is improper.

The California Supreme Court will now decide for all California state courts which view is right. In the short run, its grant of review wipes the Court of Appeal opinion in Jankey off the books; defendants in state court no longer can cite it. In California federal courts, the Ninth Circuit’s view in Hubbard still governs. And it will still do so no matter what the California Supreme Court rules—unless the U.S. Supreme Court gets involved. It might if, in Jankey, the California Supreme Court rejects the Ninth Circuit’s view .

Pitchess Discovery Is Not Available for DMV Per Se Hearings and Should Be Limited to Criminal Cases Involving Allegations that Officer Used Excessive Force

On Friday, April 23, 2010, a California appeals court ruled in Brown v. Valverde that motions filed pursuant to California Evidence Code section 1043 et seq. and Pitchess v. Superior Court (Pitchess motions) to request peace officer personnel records are not available in administrative per se hearings conducted by the California Department of Motor Vehicles (DMV) on driver’s license suspensions.

Court of Appeal Decision Adversely Affects Public Entity Liability for Dangerous Conditions

In an opinion published on April 16, 2010 the California Court of Appeal, Third Appellate District held that in cases in which a plaintiff has alleged that a dangerous condition of public property caused injury, the public entity defendant cannot rely on the absence of prior accident claims to prove that the public property did not pose a substantial risk of injury to the plaintiff. In the case, Lane v. City of Sacramento, C060744, the City of Sacramento brought a summary judgment motion on the plaintiff's claim that the dangerous condition of the City's roadway caused an automobile accident. The City argued that it could not be liable because in the absence of prior accidents, there was no basis to find that the roadway posed a substantial risk of injury. In support of the argument, the City relied on evidence that no previous claims had been filed against the City for injuries at the subject location.

In reversing the trial court's order granting summary judgment on behalf of the City, the Court of Appeal found that the City's evidence showed only that the City had found no evidence of prior claims against the City in connection with accidents at the location in question, rather than showing that no other accidents had actually occurred there . The Court also stated that a lack of prior accidents, even if properly proven, would not be enough by itself to bar Plaintiff's claim at the summary judgment stage, although it would be relevant supporting evidence.

This decision is important because it requires public entities defending themselves from dangerous condition claims present sufficient evidence that no other accidents occurred at the location in question . Simply showing that no previous claims ha ve been filed will not be sufficient. The Court of Appeal did not specify what would be an adequate way of proving a lack of accidents. It seems, though, that a lack of police reports would be one helpful, further step beyond a lack of claims. The issue will have to be developed in future cases. The opinion, available here, also contains important discussions regarding the relevance of a plaintiff's exercise of due care, and the causation element of a dangerous condition claim.

New Decision Affects Miranda

On February 24, 2010, the U.S. Supreme Court came to a decision that will have long-lasting implications on police policy with respect to Miranda warnings. The case, Maryland v. Shatzer, examined whether a police investigation in Maryland was performed illegally when police re-interrogated a man suspected of sexual assault after two years had passed since the first interrogation.

At issue was the question: if a break in one's custodial state occurs after the individual has invoked his right to counsel, when (if at all) may police resume interrogating the suspect and not violate his or her right to counsel? In a unanimous decision, the Supreme Court ruled that the police did not violate the suspect's right to an attorney and that 14 days is a sufficient amount of time to pass for one's invocation of Miranda to end and for re-interrogation to take place.

What Shatzer has done is to establish a bright-line rule in terms of when an individual's right to invoke ends. Once a suspect invokes his or her right to counsel, the interrogation must cease immediately—that rule has not changed. What has changed, however, is that the officer may revisit the suspect and resume the interrogation after a two-week lapse, regardless of whether the suspect is in custody, as long as he or she is returned to the general prison population for a conviction unrelated to the subject of the interrogation. Read more here.

High Praise for Pot Growers' Superstore

Will 2010 be the "Year of Living Green?" Including the year that California voters pass an initiative to legalize marijuana for personal use?

Yesterday, the backers of the "Regulate, Control and Tax Cannabis Act of 2010"--- which would legalize possession of small amounts of marijuana for adults, allow limited growing on private property, and permit local governments to decide whether to legalize and tax pot sales --- stated they would submit more signatures than required to qualify the measure for the November 2010 ballot.

Coincidently, in a ribbon-cutting ceremony attended by several members of the City Council, a 15,000 square foot warehouse-type store stocked with marijuana growing supplies opened in Oakland, California. "IGROW" does not sell marijuana, but has everything else an experienced or novice medical marijuana grower would need and more, including "Bud Candy," "Grow Big," "Bud Ignitor." The only catch is that you must have a "pot card" to validate you as a medical patient. Under current state law, Californians can legally grow and possess pot for medical purposes.

Broader legalization of marijuana use got a boost in April when a Field Poll found that 56 percent of California voters supported legalizing and taxing marijuana to help bridge the state budget deficit. The measure is not without some controversy, though. Law enforcement associations and religious groups oppose it, arguing marijuana is harmful and immoral.

Last summer, voters passed a measure in Oakland to pass and regulate businesses like IGROW, and the City is hoping for a big return in tax dollars. After November, IGROW may just have to become a chain.

U.S. Supreme Court Limits Police Power to Search Cars Without a Warrant

In the recent decision of Arizona v. Gant, the United States Supreme Court said police may search a vehicle without a warrant only when the suspect could reach for a weapon or try to destroy evidence, or when it is "reasonable to believe" there is evidence in the car supporting the crime for which the person isbeing arrested. The decision changes a rule that law enforcement has relied on for nearly 30 years and which the justices noted was a misreading of the court's prior decision in 1981 (New York v. Belton).

In the Absence of CEQA Review, In-Lieu Fee Programs Cannot Presumptively Establish Full Mitigation of Environmental Impacts

The Third Appellate District Court of California held in the case California Native Plant Society v. County of El Dorado, that the payment of a rare plant impact in-lieu fee, which was not reviewed under the California Environmental Quality Act (CEQA), does not presumptively establish that the environmental impacts to rare plants for all projects are fully mitigated such that a developer is entitled to a mitigated negative declaration.

If you are interested in learning more, please view the full Meyers Nave legal alert.

High Court Makes It Easier to Assert Qualified Immunity for Public Officials

On January 21, the U.S. Supreme Court issued an important decision affecting public officials and their assertion of the "qualified immunity" defense to claims of civil rights violations (Pearson v. Callahan, 555 U.S. ____ (2009) (Slip Op. 07-751, January 21, 2009). Qualified immunity is an affirmative defense available to public officials which serves to shield them from liability typically in cases of constitutional law. It is usually asserted in defense of a peace officer's actions in civil rights suits.

Before Pearson, courts were required to analyze qualified immunity pursuant to the framework identified in Saucier v. Katz. (Saucier v. Katz, 533 U.S. 194 (2001)). According to Saucier, before a defendant would be entitled to qualified immunity, the trial court was required to answer two questions: (1) has the plaintiff alleged facts sufficient to support a constitutional violation; and (2) if yes, then is the right "clearly established?" This analysis, the "Saucier two-step," was the source of much criticism because it, among other things, forced courts to directly address constitutional questions, which is contrary to established jurisprudence to avoid deciding questions with constitutional import, if there exists any other grounds upon which a case could be decided.

Pearson addressed this criticism, and in a unanimous decision, the Supreme Court held that trial and district courts can skip this first question and instead go straight to the second question in the Saucier two-step analysis. In other words, the Saucier analysis is not mandatory.

This now allows the district and trial courts much more discretion and latitude in deciding whether an official should be entitled to qualified immunity. Rather than becoming mired in constitutional debate, courts may now simply turn to the question of whether the official's conduct was reasonable, or violative of clearly established law. This bodes well for being able to assert qualified immunity both sooner in the life cycle of litigation, and more often, including cases where under the Saucier test, the constitutional issues may have made prevailing on qualified immunity problematic.

California Supreme Court Issues Ruling Regarding Injuries on Public Property

Attorney Authors: 

The California Supreme Court unanimously held that the County of San Joaquin was not liable for injuries that a teenager suffered as a result of an automobile accident at an intersection with an allegedly poorly placed stop sign. According to an article in the San Francisco Chronicle, the State Supreme Court held that accident victims who blame their injuries on dangerous conditions on highways or public property must prove that government employees carelessly created the dangers or ignored warnings. To read an article about the Supreme Court's decision click here.

L.A. Introduces 24-Hour Medical Marijuana Vending Machines

Three sites in Los Angeles, including the Herbal Nutrition Center and the Timothy Leary Medical Dispensary in the San Fernando Valley, have introduced "PVMs" or "prescription vending machines" which can distribute medicinal marijuana to people carrying cards authorizing marijuana use. The computerized machines require fingerprint identification and a prepaid card with a magnetic stripe. Once the card and fingerprint are verified, an envelope with the pot drops down a slot. The amount of marijuana is limited to a certain amount per week. Apparently, by eliminating the vendor behind the counter, a lower price can be offered.

Marijuana use is illegal under federal law, which does not recognize the medical marijuana laws of the State of California and 11 other states. The Drug Enforcement Agency and other federal agencies have raided dispensaries in the Bay Area and throughout the state over the last two years, charging operators with felony distribution.

See, for further details.

Supreme Court Rules that Police Car Chases Do Not Violate the Fourth Amendment

The Supreme Court has ruled in Scott v. Harris, No. 05-1631, 2007 WL 1237851 (U.S. April 30, 2007) that a police officer's attempt to terminate a dangerous high-speed car chase that threatens the lives of innocent bystanders does not violate the Fourth Amendment, even when it places the fleeing motorist at risk of serious injury or death. The case involved a Section 1983 action brought against a county and its police officers alleging the use of excessive force in connection with a high-speed chase. The 19-year old motorist claimed that his Fourth Amendment rights had been violated.

Harris, the driver, initially came to the attention of police for driving 73 miles/hour in a 55 miles/hour zone. Harris failed to pull over when followed by a deputy and a chase ensued, with Harris reaching speeds of 85/mph. Scott, a police officer, joined the pursuit, but was not told that the chase was initiated by a speeding infraction. Scott terminated the ten-mile chase by ramming Harris's vehicle. Harris was rendered a paraplegic when his vehicle went off the road and crashed. He claimed that Scott's actions constituted "deadly force" which was not justified in the circumstances.

In an 8-1 decision, the Supreme Court disagreed. The Court included a videotape of the chase with its decision. Justice Scalia referred to the chase video as "the scariest chase I ever saw since 'The French Connection,'" and stated "We are happy to allow the videotape to speak for itself."  Finding that the record blatantly contradicted the plaintiff's version of events, the Court ruled that the car chase that Harris initiated posed a substantial and immediate risk of serious physical injury to others, and that Scott's attempt to terminate the chase by forcing Harris off the road was reasonable. Accordingly, Scott was entitled to summary judgment on qualified immunity grounds. The Court noted that, at the summary judgment stage, facts must be viewed in the light most favorable to the nonmoving party only if there was a "genuine" dispute as to those facts.

California Cities Publishes Legal Advocacy Report

The League of California Cities published its litigation update on April 18, 2007. The report summarizes the cases reviewed by the legal advocacy committee, which engages in advocacy on behalf of California cities in the courts and in the legislature. Click on this link to review the full report: Litigation Update

For more information, please contact Ben Reyes or Steve Meyers

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