CASE UPDATES

By: Martin J. Mayer

Qualified Immunity Not Available Defense to Excessive Force Charge Brought by Disabled, Elderly Arrestee

KATZ v. United States Of America 194 F. 3d 962 (1999)

This case arose when Donald Saucier, a military police officer, arrested Elliot M. Katz, a 60 year old veterinarian and animal rights activist who was wearing a visible knee-high leg brace, during a speech given by Vice President Gore at the Presidio Army base in San Francisco. Katz was holding up a sign when arrested and alleged that Saucier and another officer grabbed him, tore the sign out of his hands, dragged him fifty feet, and violently tossed him into a van.

The officers never spoke to Katz. They closed the door to the van, leaving Katz alone in the vehicle for about twenty minutes. At some point another individual was also placed in the van and the two were driven a military police station. After being briefly detained, Katz was released and allowed to drive home, never being informed of the basis for his detention or cited for any violation of any law or regulation.

Saucier filed a motion for summary judgment, contending he was entitled to qualified immunity. The district court denied the motion as to Katz's Fourth Amendment claim which was grounded on Saucier's alleged use of excessive force in effecting Katz's arrest.

The Ninth Circuit Court of Appeals, affirming the district court's action, pointed out that qualified immunity protects government officials performing discretionary functions from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.

In a civil rights action founded on the use of excessive force, the reasonableness of the officer's conduct also comes into play as an element of the plaintiff's case. Under the Supreme Court holding in Graham v. Connor, 490 U.S. 386 (1989) the reasonableness inquiry is a balancing of the "force which was applied ... against the need for that force." / How does this impact your department?

Officers must always keep in mind that their right to use any degree of force is balanced with the need for the use of any degree of force. It is therefore incumbent upon an officer to articulate, in his or her report, a clear and concise reason for the use of force, paying careful attention to the severity of the crime at issue, whether the suspect posed an immediate threat to the safety of the officer(s) or others, and whether the suspect actively resisted detention or attempted to escape.

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Where Child Suffers Further Abuse After Officers Fail To Investigate And Report Alleged Child Abuse, City May Be Held Liable

ALEJO v. CITY OF ALHAMBRA 75 Cal. App. 4th 1180

Three-year old Alec Alejo resided with his mother and her live-in boyfriend. Hector Alejo, Alec's father, became concerned when he observed Alec had severe facial bruising surrounding the area of his left eye. Three days later Hector received a telephone call from a neighbor who advised him that the mother and her boyfriend were using drugs and that the boyfriend was physically beating and abusing Alec.

Immediately after receiving the telephone call, Hector went to the Alhambra police department and reported his knowledge about the physical abuse being inflicted upon Alec by the boyfriend. Hector informed an officer of Alec's black eye and the fact he had just received a telephone call regarding the drugs and that Alec was in the process of being physically abused. Hector described the location where Alec and his mother lived, offered to take the police there and requested the police immediately go and investigate the matter.

The police department failed to conduct any investigation into whether Alec was being abused and failed to prepare an internal report or cross-report to other governmental agencies and offices concerning Alec's possible abuse.

Six weeks after Hector reported Alec's abuse to the police department Alec was subjected to a severe, violent beating by the boyfriend, resulting in total and permanent disability. An action was brought against the City of Alhambra, and the officer for failing to investigate or report a reasonable suspicion of child abuse as mandated by Penal Code section 11164, et. seq.

The city demurred on the grounds that its police department and officers had no special duty to protect Alec from child abuse, the reporting and investigation of child abuse by law enforcement is a discretionary function, its police department and officers are immune from liability for their failure to act and, in any event, their failure to act was not the cause of Alec's injuries. The trial court sustained the city's demurrer without leave to amend and entered judgment dismissing the city from the action.

The Second District Court of Appeal (Div. 7) reversed and remanded holding that while the police, as a general rule, have no duty to protect any individual, they are subject to a duty created by the Child Abuse and Neglect Reporting Act. The statutory duties are mandatory. The information imparted was sufficient to raise a suspicion of child abuse in a reasonable person and the department had a statutory duty to investigate.

/ How does this impact your department?

Where statutory duties are imposed upon a law enforcement agency, i.e., Child Abuse, Elder Abuse, Domestic Violence, etc., officers should be periodically reminded that their duty to determine legitimacy of the complaint is not discretionary - it is mandatory and failure to carry out their statutory duty may subject the agency to liability exposure.

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PC 148.6 Warning Applicable Only To Complaints Of Misconduct While On Duty

SAN DIEGO P.O.A., et al. v. CITY OF SAN DIEGO 76 Cal. App. 4th 19 (1999)

The San Diego Police Officers Association filed a writ of mandamus to force the city of San Diego and the San Diego Police Department to administer the advisory warning in Penal Code Section 148.6, and require the citizen's signature, in every instance in which a complaint was made regarding a police officer. The Association also wanted the advisory warning issued regarding Equal Employment Opportunity complaints made by fellow officers and civilian employees of the department, including complaints of on or off duty criminal activity by an officer.

The department contended that Section 148.6 was only required when members of the public made complaints of misconduct by a police officer during the performance of his or her duties.

The trial court found that the advisory warning was limited to complaints regarding a police officer's on duty conduct towards the general public. It nevertheless granted the writ, finding Section 148.6 warnings should have been issued when accepting a citizen's allegation of police misconduct during the performance of the officers' duties, even if the misconduct rose to the level of a criminal offense.

The Fourth District Court of Appeal (Div. 1) affirmed, point out that the legislative history of Section 148.6 demonstrated that the purpose of its enactment was to curb unethical citizens from filing malicious, false allegations of police misconduct against police officers who were simply doing their jobs. The trial court's finding that Section 148.6 was only applicable to officers during the performance of their duty, regardless of whether it arose to the level of a criminal offense, was correct.

/ How does this impact your department?

Section 148.6(a) contains limiting language in the form of the advisory set forth in subdivision (a)(2), which specifically refers to citizens' complaints of police misconduct. Departments should make every attempt to secure the signature of the "citizen" when a complaint of wrong doing has been alleged, where the officer is in the performance of their duties as a peace officer.

However, since the advisory specifically refers to "citizen complaints" of "improper police conduct," the appellate court agreed with the trial court that §148.6 applies "exclusively to complaints from the public." The section, therefore, does not apply to internally generated complaints by co-workers - those are grievances, not citizen complaints by the public.

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As always, before taking any legal actions be certain to seek appropriate legal advice, whether it is from a city attorney, county counsel, or your police legal advisor. As always, if you have any questions, please do not hesitate to call Martin J. Mayer at (562) 590-8280.

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