CASE UPDATES

By: Martin J. Mayer
and
Mervin D. Feinstein

Adverse Employment Action Deters An Employee From Engaging
In a Protected Activity

RAY v. HENDERSON 217 F.3d 1234 (2000)

William Ray, a 28 year postal carrier, and the four other carriers at the Willits Post Office became concerned about gender bias and harassment at the post office by their supervisor Dale Briggs. The subject of the harassment of women came up at an employee involvement meeting when a female janitorial employee raised her hand and asked to be recognized to speak. Postmaster Dan Carey "immediately wheeled around, swinging his arm, yelled and pointed and ordered the employee out of the meeting."

Ray spoke up and stated his objections to the treatment of women at the post office, which Carey vehemently denied and berated Ray as a "liar." Ray next complained about the treatment of women at a Rural Carriers Employer involvement meeting and Carey again angrily denied the charges. When these complaints failed to spur any change, Ray and two of his coworkers wrote a letter complaining of the harassment of women to Carey's supervisor.

The letter prompted a meeting at which Carey stated his displeasure that Ray complained to his supervisor and stated that because of the letter he may have to change his 18 year "self-management" approach to management. Briggs and Carey then publicly berated Ray on a regular basis, called him a "rabble rouser" and a "troublemaker," and canceled the Employee Involvement program and "self-management" program. A fixed starting time was established by Briggs which gave the carriers less time to sort mail prior to going out on their routes, and Ray continued to be the target of Briggs and Carey's hostility. Ray was twice falsely charged with misconduct and filed a request for counseling with the EEOC, complaining of a hostile work environment. Ray also took stress leave.

Ray's EEO complaint was heard by an Administrative Law Judge who found that the Postal Service had retaliated against Ray after he filed his written EEO counseling request, but rejected Ray's other claims. The Postal Service rejected the ALJ's findings of retaliation and entered a final agency decision rejecting all of Ray's claims. Ray then filed suit alleging, among other things, retaliation for engaging in protected activity. The district court granted the Postal Service's motion for summary judgement on all claims.

The United States Court of Appeals Ninth Circuit reversed and remanded for trial on the merits Ray's retaliation claim.

The Ninth Circuit pointed out that to make out a prima facie case of retaliation, an employee must show that (1) he engaged in a protected activity; (2) his employer subjected him to an adverse employment action; and (3) a causal link exists between the protected activity and the adverse action. There was no dispute between the parties that Ray engaged in protected activities when he complained about the treatment of women at the Willits Post Office, both informally and formally with the EEOC.

The EEOC, the court noted, has interpreted "adverse employment action" to mean "any adverse treatment that is based on a retaliatory motive and is reasonably likely to deter the charging party or others from engaging in protected activity." The court found this test consistent with not only it's prior holdings but also those of the First, Seventh, Tenth, Eleventh and D.C. Circuits.

Ray claimed that, in retaliation for his complaints, his supervisors eliminated the Employer Involvement program, eliminated the flexible start-time policy, instituted lock-down procedures, and reduced his workload and his pay disproportionately to the reduction faced by other employees, which the court concluded qualified as adverse employment actions.

Having not previously decided whether a hostile work environment could be the basis for a retaliation claim under Title VII, the court reasoned that if harassment based on race and gender was obviously actionable, harassment as retaliation for engaging in protected activity should be no different. The court also noted that prior cases have held that repeated derogatory or humiliating statements can also constitute a hostile work environment.

/ How does this affect your agency?

This reinforces that actions by an employer must be based on sound business reasoning and not out of anger or displeasure with the complainant. This case also reaffirms every employee's right to bring management's attention to inappropriate conduct and management's obligation to act on the concern, not retaliate against the employee.

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Negative Performance Evaluation Standing Alone Will Not
Support Retaliation Claim

KORTAN v. CALIFORNIA YOUTH AUTHORITY 217 F.3d 1104 (2000)

Aybike Kortan, a Caucasian female, was a Clinical Staff Psychologist at the Southern Youth Reception Center and Clinic. Her supervisor, Dr. Albert Atesalp, appointed her as an "acting senior psychologist" with the authority to act on his behalf in his absence. After six years in the acting position Kortan wrote Atesalp that she no longer wanted to be "acting senior" in his absence, stating that "for the past 5 years, I have been acting in your capacity when you were absent. I have been trying to do my best, however, regardless of how much I try, I am unable to improve in any way how things are around here."

Kortan complained to Assistant Superintendent Schulman after Atesalp received her memo and, over coffee, he referred to a former female superintendent as a "regina," to a former assistant superintendent as a "Madonna" "regina" and a "castrating bitch," and to women generally as "bitches" and "histrionics." Kortan, with the encouragement of Schulman memorialized her charges against Atesalp and complained to Superintendent Manual Carbajal. Kortan's complaint along with a request for an investigation was forwarded to Youth Authority Headquarters in Sacramento and an investigator from Internal Affairs was assigned.

Subsequent to Kortan's complaint Atesalp completed an evaluation of Kortan's work performance. He rated Kortan's performance as "E" ("performance consistently exceeds expected standards") in five of the eight areas of evaluation and "I" ("improvement needed to meet expected standards") in three areas: work habits, relationships with people, and meeting work commitments. To avoid any perception of retaliation, Schulman independently reviewed Atesalp's evaluation of Kortan; because he did not believe that Atesalp's initial evaluation was completely accurate, and felt there was retaliation, he changed the three low ratings to "M" ("performance fully meets expected standards"). Kortan and Atesalp refused to sign the evaluation. Only Schulman's signed evaluation were placed in Kortan's personnel file.

The internal affairs investigator completed his investigation finding Kortan's charges of harassment unsubstantiated. Kortan filed charges with the EEOC claiming Atesalp created a hostile work environment by using racist and sexist terminology, and that after complaining about his conduct she was given a lowered performance rating, had a temporary transfer request denied, and had been threatened with disciplinary action if she spoke about her allegations.

After receiving a right to sue letter, Kortan filed an action in Federal Court alleging hostile work environment, retaliation, and gender discrimination. The district court granted summary judgment for the Youth Authority holding that a negative evaluation, after her complaint about her supervisor's conduct, unaccompanied by any other adverse impact such as a demotion or change of responsibilities, is insufficient to allow a retaliation claim to go forward.

The United States Court of Appeals Ninth Circuit affirmed pointing out that Kortan did not ascribe any retaliatory motive to Schulman's changed evaluation, which was the one that counted, thus had not shown that her evaluation was discriminatory or retaliatory, or was such an "intolerable" act that it would force an employee to quit. The Atesalp evaluation was not disseminated beyond Schulman, who corrected it; and the Schulman evaluation was not sub-average or undeserved to the extent it was less than perfect in three of eight categories.

/ How does this affect your agency?

While a negative performance evaluation does not itself inflict tangible employment harm, the dissemination of an undeserved negative job reference is a personnel action that might violate Title VII. Managers and administrators must continue to demand honest performance appraisals which are based on valid criteria, adequate documentation, and be void of bias.

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Conduct By Non-Supervisory Or Non-Management Personnel May Constitute
Actionable Retaliation By Employer

FIELDER v. UNITED AIRLINES 2000 D.A.R. 7495

Joanne Fielder began working for United Airlines as a permanent, part-time customer service agent. After three years employment she took a furlough then, upon return, continued to work for almost ten years until placed on medical leave at her request. During her employment Fielder had been subjected to sexual harassment by M.C., a co-worker. He would frequently touch her shoulder, back, arms or hips while on the job, and made obscene phone calls. She told him explicitly to stop touching her and that if he continued, she would obtain legal counsel and pursue a claim against him. He continued the offensive conduct which Fielder reported to her supervisor. M.C. denied the allegations when the supervisor confronted him with the complaints. Other female employees also complained to the supervisor about M.C.'s behavior, including a complaint about an obscene phone call.

Shortly thereafter M.C. confessed to the police that he had placed the obscene phone calls, and entered into a criminal diversion agreement. The supervisor gave M.C. the strongest reprimand possible short of termination - a final written warning, even though included in M.C.'s diversion agreement was a no-contact with Ms. Fielder requirement, which mandated that he could not work the same shift as Fielder. Contact however was inevitable, especially during shift changes.

After reporting M.C. to her supervisor, but prior to M.C.'s entering the diversion program, the supervisor did little to protect Fielder from M.C. although Fielder regularly asked the supervisor to stop both M.C.'s continuing harassment and the retaliations she was receiving from her co-workers. A co-worker agreed that the working environment was stressful and that employees often retaliated against Fielder. Others testified that the environment was generally hostile to women.

Fielder was warned by M.C.'s diversion officer that he was "one of the scariest of his type, because he's smart enough to walk with one foot on both sides of the line." As a result of the supervisor's refusal to have meetings with her or otherwise guarantee her safety, Fielder went on medical leave.

Fielder filed an action for sex discrimination, retaliation and constructive discharge and the federal district court granted summary judgment for United. The district court made the determination that her claims were barred by the statue of limitations and that she was estopped from asserting her constructive discharge claim because she did not timely resign. The United States Court of Appeals Ninth Circuit reversed and remanded, holding that Fielder's claims of sex discrimination and retaliation were not time-barred and she was not estopped from asserting her claim for constructive discharge.

The court addressed the timeliness of Fielder's action by noting that a plaintiff satisfies the continuing violation doctrine when he or she shows a "continuing policy and practice of discrimination on a company-wide basis" and that "the policy and practice operated at least in part within the limitation period." It applies also when a plaintiff alleges a "series of related acts, one or more of which falls within the limitations period" and when only a few discriminatory acts took place during the limitations period, but these acts were part of an ongoing unlawful employment practice.

The court also addressed an open question in this circuit: Whether conduct by co-workers who are not supervisors may impose liability on the employer on a retaliation claim. The court expressed the view that the interpretation of an adverse employment action, as expressed by the Courts of Appeals of the First, Seventh and Tenth Circuits, was consistent with the plain language of 42 U.S.C. § 20003-3, and held that Title VII's protection against retaliatory discrimination extends to employer liability for co-worker retaliation that rises to the level of an adverse employment action.

/ How does this affect your agency?

Although management cannot force employees to talk to another employee, nothing prohibits an agency from enforcing a policy that employees must be civil to one another and offer assistance where assistance is needed or been requested. This case also reaffirms that where the mere presence of the harasser creates a hostile, offensive and/or intimidating work environment management may be faced with no other choice than to remove the offender from the work-site. Swift, affirmative and decisive action must be taken.

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Reasonableness Of Pointing Firearm At Suspect's Head Is
Issue Of Material Fact

ROBINSON v. SOLANO COUNTY, et al. 2000 D.A.R. 7643

James F. Robinson, a 64 year old African American, retired San Francisco police officer, lived in a farm house on a five acre parcel in the semi-rural area of Fairfield, raising cattle, ducks, turkeys, geese and chickens. The property was fenced and Robinson kept a shotgun to protect his livestock. One morning when he saw two dogs attacking and killing livestock he shot both dogs, killing one and wounding the other. Robinson looking for the wounded animal came to the public road fronting his property, and walked approximately 50 feet along the road carrying his shotgun.

Robinson's neighbor, Sarah Reyes, the owner of the dogs, came out of her house and yelled to him, angry that he had shot her dogs. The two had a heated conversation and Robinson returned home. Ms. Reyes phoned the police and a call regarding a man carrying a shotgun who just shot two dogs and "is in the middle of the street yelling at this time" was dispatched. A number of officers responded to the call and parked on the public road in front of Robinson's property. Robinson saw six police vehicles pull up outside his home and decided to go explain the incident to them. Wearing only an unbuttoned shirt and a pair of jeans, Robinson walked the 135 feet from his front door to the street.

As Robinson neared the street, Officer Cauwells, who had been with the force approximately nine months walked forward to meet him. Robinson said, "My name is Robinson and I'm the man that was involved with the dogs." At that point, officer Cauwells pointed his gun at Robinson's head from a distance of about six feet. Officer Faulkner also took out his gun and pointed it at Robinson. Cauwells told Robinson to put his hands over his head. Robinson was then handcuffed by two officers and placed him in the back seat of their unit. Robinson attempted to explain the situation to the officers, but they refused to listen, however, they released him after they ascertained he had not violated the law.

Robinson brought suit in federal court against Solano County and Officers Brian Cauwells and Gary Faulkner alleging false arrest, false imprisonment, and use of excessive force. The district court granted partial summary judgment with respect to all claims against Solano County and all state law claims against the individual defendants, but declined summary judgment on the § 1983 claims against the officers. The jury found the length of Robinson's detention reasonable, but divided four to four on the question of whether the force employed to seize Robinson was reasonable. After the jury deadlocked and was dismissed the Magistrate Judge granted the officers judgment as a matter of law on the excessive force claim, holding they were entitled to qualified immunity.

The United States Court of Appeals Ninth Circuit reversed and remanded for a new trial, holding that the disputed facts went to the very heart of the question of whether the officers' conduct was reasonable.

The court noted that at the time of the alleged conduct the contours of the law governing the pointing of guns at suspects put reasonable officers on notice that unreasonably pointing their guns at Robinson's head would violate his constitutional rights. Addressing the reasonableness of the officers conduct the court noted that pointing a gun at a person can cause severe psychological trauma. It is tantamount to a death treat - "put you hands in the air or I will shoot you."

The court also noted that there are circumstances under which an officer must take the precaution of drawing her service revolver or pointing it at a suspect. But drawing and pointing a gun are serious steps that are not warranted under all circumstances, and officers can be held liable under § 1983 for pointing a gun at a suspect where the circumstances do not warrant such a use of force.

To determine whether the force employed was reasonable, the fact finder conducts a "careful balancing of 'the nature and quality of the intrusion on the individual's Fourth Amendment interests' against the countervailing governmental interests at stake." (Graham v. Connor, 490 U.S. 386, 394 (1989).

In conducting this balancing, the fact finder considers: "(1) the severity of the crime at issue, (2) whether the suspect poses an immediate threat to the safety of the officers or others, and (3) whether he is actively resisting arrest or attempting to evade arrest by flight." The court point out that this list is not exhaustive; the fact finder may also consider other factors such as "whether the plaintiff resisted or was armed, whether more than one arrestee or officer was involved, whether the plaintiff was sober, whether other dangerous or exigent circumstances existed at the time of the arrest."

/ How does this affect your agency?

Officers must be aware of just how fragile their "qualified immunity" defense can become when they over react to a situation. Departments can minimize personnel exposure by developing blocks of "reality" training with meaningful debriefing.

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Where Employing Agency Acts in Concert With Outside Investigative Agency
POBRA Must Be Applied

CALIFORNIA CORRECTIONAL PEACE OFFICERS ASSOCIATION v. STATE OF CALIFORNIA (CDC) 82 Cal.App.4th 294 (2000)

A preliminary injunction was issued against the California Department of Justice (DOJ) and the California Department of Corrections (CDC), limiting their conduct in investigating alleged criminal activity by correctional officers at Corcoran state prison. At issue is the application of the Peace Officer Procedural Bill of Rights Act and specific rights provided therein during criminal investigations.

The investigation was precipitated by claims that the rape of an inmate had been "set up" by prison staff, who then endeavored to conceal their conduct. The correctional officers refused to cooperate with the investigative efforts of the local district attorney.

Plaintiffs filed a lawsuit alleging abusive tactics in investigating the alleged criminal activity and obtained a preliminary injunction setting forth procedures to be followed in conducting criminal and/or administrative investigations. The preliminary injunction was issued to protect plaintiffs against asserted violations of the Fifth Amendment and the Public Safety Officers Procedural Bill of rights Act.

The warden at Corcoran convened a meeting to inform CCPOA that the DOJ would be conducting an extensive criminal investigation. Correctional officers who were to be interviewed would not be allowed legal representation during questioning or the opportunity to consult with counsel beforehand. The warden advised CCPOA that its members would be ordered to cooperate in the DOJ criminal investigation pursuant to Government Code § 3304 (a).

The warden explained that if DOJ investigators indicated that an officer was a "witness" and the officer thereafter refused to answer questions, he or she would be disciplined immediately with administrative time off and walked off the institution grounds. If, on the other hand, an officer were deemed a "target" and thereafter refused to be interviewed, he or she would be handcuffed and arrested. More than 20 officers were interviewed and all were told they were not free to leave the prison grounds until they met with investigators. When they reported to the warden's office, the officers were met by CDC special service agents and isolated until the commencement of individual interrogations. Officers were not informed whether they were "witnesses" or "targets" until interviews were underway, nor were they provided any advance notice of the subject matter of the investigation. There were not permitted to consult with a union lawyer or union representative prior to being interviewed. The officers were threatened with disciplinary sanctions if they did not answer investigators questions and otherwise cooperate. Officers who wished to tape record their interviews were told their cassette tapes would be seized as criminal evidence at the end of the interviews.

A complaint was filed in San Francisco Superior Court alleging four causes of action. The court issued a preliminary injunction which was subsequently modified after motions by all parties. The order required that before any interrogation, of any correctional officers in State bargaining Unit 6, about "possible criminal and/or administrative conduct," the officer must be provided at least 24 hours written notice. The notification had to inform the officers of the date, time, and place of the questioning, and whether the officers are "targets" of the investigation or mere "witnesses". DOJ and CDC were enjoined from interrogating any correctional officer regarding possible criminal conduct, whether he or she was a "target" or a "witness," without affording the officer the right to consult with counsel before being questioned. The order did not, however, provide officers the right to consult with counsel during questioning, nor did it give them the right to invoke the Fifth Amendment without fear of reprisal from CDC. The order restrained DOJ & CDC from directly or indirectly using any statement made by any employee who, as of the date of the order (November 10, 1998), had been denied legal counsel.

The California Court of Appeal First Appellate District concluded that the investigation violated provisions of the POBRA and that injunctive relief was therefore appropriate under Government Code § 3309.5. It applied to the CDC, but not to the DOJ.

DOJ and CDC contended that the Public Safety Officers Procedural Bill of Rights Act was not violated because the Act applied only to administrative investigations, not the type of criminal investigation conducted in this case. The court noted that although the Act was not designed to provide public safety officers any greater right than other persons in connection with investigations by law enforcement agencies in which they are not employed, they had to agree with CCPOA's position that DOJ's involvement did not serve to immunize CDC from the provisions of §3303. The court opined that CDC and DOJ had to be considered to have been acting together in the investigation.

"CDC did not merely order the correctional officers to cooperate with the DOJ investigation, but delivered interviewees to DOJ investigators, and threatened them with arrest and/or discipline if they asserted their rights during interrogation by DOJ agents. Until the officers had given statements; correctional officers were prevented from leaving prison grounds by CDC. Hallway exits and interrogation rooms were guarded by the CDC. The interviews took place during work hours or immediately thereafter on work premises. Upon being told by DOJ interrogators that an officer was not providing satisfactory responses during the interrogation, CDC employees threatened the officers with criminal and disciplinary sanctions." Under these circumstances, the court concluded, CDC and DOJ were considered to have been acting in concert.

The court also noted that almost every administrative investigation of alleged misconduct could be recast as a criminal investigation to avoid the requirements of the Act. The court agreed that the criminal investigations referred to in subdivision (i) of §3303 and subdivision (a) of §3304 must be ones conducted primarily by outside agencies without significant active involvement or assistance by the employer.

In footnote 6, the court stated, "We do not construe our opinion as materially obstructing the ability of the employing agency to conduct a criminal investigation of its peace officer employees. It is true that a law enforcement agency investigating its own peace officer employees would have to provide the rights accorded by the Act - i.e., notice of the nature of the investigation and the identity of the interrogators, the right to record the interrogation, admonishment of constitutional rights, and the right to representation - but we do not think that this requirement would materially impede meaningful investigation of employees regarding criminal misconduct."

The court points out that the California Supreme Court discussed the rights of peace officers under the Act and interpreted subdivision (h) of §3303 in Lybarger v. City of Los Angeles, 40 Cal.3d 882, holding that an officer had neither a constitutional nor a statutory right to remain silent free of administrative sanction. "As a matter of constitutional law, it is well established that a public employee has no absolute right to refuse to answer potentially incriminating questions posed by his employer. Instead, his self-incrimination rights are deemed adequately protected by precluding any use of his statements at a subsequent criminal proceeding."

The court held that the declarations in this case clearly indicated that subdivision (h) was violated on a number of occasions. Officers who invoked their right to remain silent should have been given admonishments. So too should the officers who were deemed "targets" of the investigation.

The court concluded that nowhere does the statute authorize enjoining the investigative activities of outside law enforcement agencies such as DOJ. Meaningful relief did not require inclusion of the DOJ in the injunction. Enjoining the CDC from violating the provisions of the Act was sufficient to provide effective relief, since it was the CDC's actions that rendered the Act applicable.

/ How does this affect your agency?

When an outside agency has been requested to conduct a criminal investigation your agency must be only peripherally involved. Had the DOJ conducted a substantially independent investigation, the provisions of §3303 would not have been applicable.

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Violation Of Statutory Procedures Governing Disclosure Of Police
Personnel Records Does Not Give Rise To Private Cause of Action By Officer

ROSALES v. CITY OF LOS ANGELES, et al. 82 Cal.App.4th 419 (2000)

John Rosales, a former LAPD officer filed an action against the City of Los Angeles and a Los Angeles Deputy City Attorney, seeking damages for the City's improper disclosure of his police personnel files. The files were disclosed as part of discovery compliance in a civil suit previously filed on behalf of an underage female Police Explorer Scout who alleged that Rosales engaged in inappropriate sexual conduct with her in his capacity as a police officer. Pursuant to a discovery request filed on behalf of the Explorer Scout, the City Attorney disclosed the personnel records of Rosales without complying with the statutory procedures established for the disclosure of such records that are set forth in Penal Code § 832.7 and Evidence Code §§ 1043 through 1045.

The trial court agreed with the City that Rosales could not assert a private cause of action relating to the disclosure on any theory, and sustained the City's demurrer without leave to amend, and entered judgment of dismissal with prejudice. The California Court of Appeal Second Appellate District (Division Five) concurred, holding that violation of such procedures does not give rise to a private cause of action.

The court opined that:

/ How does this affect your agency?

Department's should not tolerate laxness in handling personnel records information for any employee, especially peace officers. Departments must demand strict adherence to the discovery process established by the Legislature that Evidence Code § 1043 is the exclusive procedure for the discovery of a peace officer personnel file. There is no obligation to turn over such files when the discovery motion is not made through that section.

Recently, however, the Attorney General issued an opinion (No. 99-503) that disclosure of such records in violation of Penal Code § 832.7 might be a crime pursuant to Government Code §1222. This case provides protection from civil liability but not necessarily from criminal prosecution.

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Where Conduct During Pursuit Is Egregious And Outrageous
Officer Loses Qualified Immunity Defense

FEIST v. SIMONSON 2000 WL 1015889 (8th Cir. Minn.)

This was an appeal by Bradley Jon Simonson, a police officer for the Minneapolis Police Department, arising from his high-speed pursuit of a stolen vehicle. Brian Feist was traveling eastbound on Interstate 94 near downtown Minneapolis and was killed when the pursued suspect's car crashed into him while traveling against traffic. The district court denied Simonson's motion for summary judgment on the ground of qualified immunity.

The facts leading up to the crash and Feist's death were undisputed.

Simonson observed a vehicle matching the description of a reportedly stolen car. Simonson made a U-turn, followed the car and the driver, Darren Shannon, voluntarily pulled over. Simonson had no reason to suspect the driver of anything other than the unauthorized use of a motor vehicle, which was a low-level felony. Simonson exited his unit with weapon drawn and ordered both driver and passenger to put their hands in the air. Neither complied. Simonson repeated the order two more times, after which the suspect yelled an expletive and quickly took off in the car. Simonson ran back to his unit, activated his lights and siren, and notified dispatch of the chase.

The chase lasted over six miles spanning both residential and commercial areas and passing a park and museum. Simonson followed Shannon the wrong way down three different roadways, all of which carried a substantial amount of traffic. For 1.2 miles, Shannon and Simonson traveled in the wrong direction on Interstate 94 near its intersection with Interstate 35 at an estimated speed of 70 miles per hour. Simonson pursued Shannon through a tunnel on the Interstate the wrong way. Traffic slowed almost to a stop as Shannon and the officers continued their course. Feist swerved into the right shoulder to avoid rear-ending the car in front of him and upon entering the shoulder, Feist's vehicle was immediately crushed by Shannon's vehicle, which was being pursued in the right-hand shoulder of Interstate 904. The estimated speed of the two cars was 94 to 104 miles per hour.

The United States Court of Appeals Eighth Circuit affirmed the trial courts denial of "qualified immunity" and addressed the essential question of whether Officer Simonson's conduct rose to the level to be "so egregious, so outrageous" that it served to "shock the contemporary conscience," as set forth in County of Sacramento v. Lewis, 523 U.S. 833 (1998).

Sgt. Johnson, the MPD pursuit instructor, testified that he would probably not have chased a stolen care the wrong direction down the interstate. MPD Officer Alan Rathbun acknowledged that chasing a car the wrong way down the interstate "creates an unreasonable risk of danger to the public." Chief Olson admitted that such a chase represents an "inherently dangerous activity," and that auto theft is "on the low end of the felony spectrum" and catching a car thief is "not worth taking a citizen's life."

The court noted that Simonson had a documented history of engaging in high-speed pursuits. He testified at this deposition that he may have been a party to over 100 such cases during his ten-year career with the Minneapolis Police Department. He was reportedly a party to twelve chases in one twenty-day period alone. Simonson admitted to his involvement in as many as twelve to fifteen chases in a single month. He has never terminated a chase voluntarily. His actions at the conclusion of a high-speed pursuit in 1990 lead to two suits against him and the City of Minneapolis, which resulted in $555,000 in liability for the City.

The court pointed out that Officer Simonson made the initial decision to pursue the stolen vehicle, the instantaneous judgment and reaction were fully justified. However, Simonson's instinctive decision to give chase slowly escalated into a high-speed chase involving wrong-way travel, thereby increasing the potential for harm to the general public. The court noted that at many points during the chase, Simonson had the opportunity to balance the law enforcement goal of apprehending Shannon for use of a stolen vehicle against the threat to the general public. Each new turn onto one-way streets and especially the accessing the freeway to drive on the wrong side of the median, presented a juncture for reassessment and evaluation of the escalating consequences of the chase. Rather than aborting the chase as the danger increased, the speed and number of pursuing vehicles also increased. "The critical question in determining the appropriate standard of culpability is whether the circumstances allowed the state actors time to fully consider the potential consequences of their conduct." (Moreland v. Las Vegas Metro. Police Dep't, 159 F.3d 365, 373 (9^th Cir. 1998). The court concluded that there was sufficient time and that qualified immunity was improper.

/ How does this affect your agency?

Department's must ensure that officers are continually reminded of their obligations to the general public in situations of this nature. Even though this case arose in another Federal Circuit, it serves as a valuable training aid and will be looked at by our Ninth Circuit should a case with similar circumstances comes before it. Of note is that the court did use our Ninth Circuit's decision in Moreland to formulate part of it's opinion.

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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. If you have any questions regarding any of the above please do not hesitate to call us at (562) 590-8280.