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					             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

2.   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

3.   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

4.   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




                                        i
                       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

6.   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

7.   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

8.   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

9.   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




                                            ii
                   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
                                    1
     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


                                    3
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

                              4
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

                              5
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.
                               6
                   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.




                                    7
     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.

                                    8
     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.

                                    9
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.




                              10
     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.




                                  11
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
                                   13
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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