CASE UPDATES

By: Martin J. Mayer
&
Mervin D. Feinstein

Reasonable Expectation Of Promotion Prerequisite To Challenge Selection Of Lower Scoring Candidate

CLAYTON-BRAME v. SUPERIOR CT OF L.A. COUNTY (L.A. Co. Dept of Health Services), (2001) 88 Cal.App. 4th 1344

In the spring of 1996, Clayton-Brame, an African-American woman, age 45, employed by the Los Angeles County Department of Health Services for 16 years, took a promotional examination for an Accountant III position. She placed in group 3 on the eligible list. Mr. Richard Lugo, who placed in group 4 on the eligible list, was promoted to the position in November 1996. The decision-making supervisor asserted a selective certification process was used, i.e., a search for a person with special computer skills.

Clayton-Brame filed a complaint with the Civil Service Commission alleging a violation of Civil Service Rules. The hearing officer found in part: "At the time of [Mr.] Lugo's appointment there were approximately fourteen people in Bands 1 and 2 on the Certified List and it is doubtful that [plaintiff] who was in Band 3, could even have been reached for promotional consideration, absent some form of selective certification." The hearing officer concluded, even "assuming" Clayton-Brame made out a prima facie case, the department had articulated a legitimate business reason for Mr. Lugo's promotion (his computer skills), and Clayton-Brame had not shown that assertion to be pretextual. The Civil Service Commission adopted the hearing officer's findings and recommendations.

Clayton-Brame filed a petition for writ of administrative mandate in the trial court, which held that: [Plaintiff] was not promoted because of her union membership/activities and that [Mr.] Lugo's [computer] programming skills were a pretext for promoting him." The trial court ordered: [Plaintiff is to] be promoted to the position of Accountant III.

The California Court of Appeal, Second Appellate District reversed the trial court's judgment and concluded there was no substantial evidence that Clayton-Brame had a reasonable expectation of selection for promotion under the department's ongoing competitive promotion system.

The Court noted that Clayton-Brame alleged she was passed over for a promotion because of union activity, which allows California courts to look to federal precedent in determining employment discrimination claims because of the similarity between state and federal employment discrimination laws. Federal courts have held that a prima facie case of unlawful discriminatory failure to promote is made by showing, inter alia, a reasonable expectation of promotion.

Agreeing with the administrative hearing officer's finding it was "doubtful" Clayton-Brame "could even have been reached for promotional consideration ... "the Court concluded that there was no substantial evidence she might have reasonably expected selection for promotion and no evidence had been presented that Clayton-Brame possessed the special skill the department considered in making the promotion.

/ How does this impact your agency?

Promotional announcements should clearly set forth those qualifications that will be used to determine who is to receive the position tested for and the selection process to be used. The information should be widely distributed and posted. In this way employee self-evaluations should allow reasonable and realistic expectations of success.

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Officers Entitled To Qualified Immunity For Arrest Pursuant To Out-Of-State Warrant

CASE v. KITSAP CO. SHERIFF'S DEPT, et al. (2001) 249 F. 3d 921

Delinquent in her child support payment and in violation of an Oregon court order, Dawn Case was arrested, pled guilty and was placed on two years probation. While on probation Case again failed to make child support payments and another warrant was issued by the Court for Case's arrest. The warrant was also entered into the NCIC system.

The District Attorney's Office obtained information that Case was living with Christopher Russell in Kitsap County, Washington. The District Attorney's Office confirmed that Case in fact lived at that location and then they contacted Kitsap County Sheriff's Office, informing them of the outstanding Oregon arrest warrant for Case's "Failure to pay court-ordered child support. Criminal non-support."

The Kitsap County dispatcher, who confirmed the NCIC warrant entry, was given Case=s address and was informed that Case had misrepresented her identity to law enforcement in the past. Deputy Burrows concluded that the warrant was for a felony offense and went to the Kitsap County residence where he encountered Russell. Russell informed Deputy Burrows that Case was staying at the house but was out. Deputy Burrows gave Russell his card and asked that Case call him..
Deputy LaFrance, who was given Case's file for follow-up, obtained a photo and other descriptive information and in uniform, the next day, went out to arrest Case. While Deputy LaFrance was en route to the residence Case called the Kitsap County Sheriff's Office from the residence and spoke with Deputy Burrows, who told Case to stay at the house because a sheriff's deputy was on his way to see her. Deputy Burrows then informed Deputy LaFrance that Case had just called and that she was at the house, expecting his arrival.

Deputy LaFrance arrived at the house a few minutes later, knocked and announced himself, but received no answer. A light was observed to be on in the house and four vehicles were in the driveway. A neighbor informed Deputy LaFrance that no one had left the house all day. Deputy LaFrance called Deputy Burrows and had him call the house, while he waited outside the house, Deputy LaFrance heard the phone ring inside. Russell picked up the phone and informed Deputy Burrows that Case was not there.

Two other deputies were requested by Deputy LaFrance to assist. Deputy LaFrance continued to knock on the door and Deputy Burrows tried calling again, however no one answered. Deputy Burrows left a message on the answering machine requesting that persons inside the house exit from the front door. A warning was also given using unit radio loudspeaker.

Receiving no response, Deputy LaFrance opened an unlocked window near the front door in an attempt to survey the interior of the residence prior to entering. As Deputy LaFrance pulled back the shade of the window he saw Russell, who asked if he had a warrant. Deputy LaFrance responded that he had an arrest warrant and demanded that Russell open the door, informing him that the deputies were there to arrest Case.

After Russell refused to open the door, Deputy LaFrance kicked it in, secured Russell in the front room, and searched the residence where Case was found hiding in a closet. Case was arrested and transported to the jail. Two hours after Case's arrest the deputies received a copy of the Oregon warrant and Yamhill County confirmed that it would extradite her. Thereafter the Washington court dismissed the fugitive charge without prejudice.

Case brought an action in the superior court for the State of Washington alleging, under 42 U.S.C. 1983, that the County violated her constitutional rights, i.e. false arrest and imprisonment, illegal search and seizure, negligent investigation of the warrant, trespass, and malicious prosecution. The County removed the case to federal court which granted the County's motion for summary judgment and ruled the deputies were entitled to qualified immunity and that Kitsap County and Kitsap County Sheriff's Department were not subject to municipal liability.

The United States Court of Appeals, Ninth Circuit affirmed, holding that the deputies were entitled to qualified immunity because a reasonable officer could believe that the conduct did not violate Case's constitutional rights.

The court noted that Case admitted that the Oregon warrant was valid, and that Washington statues provide for execution of out of state felony warrants within Washington's borders without a separate Washington warrant. A reasonable officer could therefore believe that the deputies' conduct was constitutionally permissible.

The court pointed out that by Cases' own account in her complaint, she resided in the Kitsap County residence The Court concluded that armed with a felony warrant and the reasonable belief that Case resided at Russell's house, an officer could have reasonably believed that entering the residence to arrest Case was lawful. (Payton v. New York, 445 U.S. 573, 602-603 (1980).

/ How does this impact your agency?

Verification of data, following guidelines, and adherence to accepted procedures will ensure entitlement to "qualified immunity." These are areas that should be revisited on a regular basis during roll-call training.

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Tort Claim Constitutes Actual Notice For Purpose of Preserving Radio Transmissions

NELSON v. SUPERIOR COURT OF LOS ANGELES COUNTY (2001) 89 Cal.App. 4th 565

Dwayne Nelson was arrested by Los Angeles County Sheriff's Deputies Trammell and Porter, who responded to several 911 calls concerning a man with a gun. Mr. Nelson was placed in the patrol car, then removed because he was kicking and banging the doors and windows. To keep Mr. Nelson from injuring himself or a deputy, and to prevent damage to the vehicle, the deputies placed Mr. Nelson face-down on the ground and applied a Total Appendage Restraint Procedure B a "Ripp Hobble" restraint. Mr. Nelson stopped breathing at the scene and was transported by ambulance to a hospital, where he was declared dead on arrival. There were numerous radio calls and computer transmissions from the deputies at the scene to and from their supervisors and other deputies, and the entire restraint procedure was videotaped.

A claim for damages was filed by Mr. Nelson's mother and father which alleged that the County was responsible for their son's death. Suit was then brought and the County was served with a request for the production of documents, including the "911 calls" to which the deputies responded, all "radio transmissions" from the Sheriff's Department vehicles, all "audio recordings," all "computer terminal transmissions from all Sheriff's Department vehicles," all "mobile display terminal records" from the Sheriff's Department's vehicles, all "mobile digital terminal printouts of all communications," all "administrative messages, daily worksheets and daily work shift messages." The County produced the daily worksheets and administrative messages, but no mobile digital or "voice communication systems" or "audio communications."

In response to an additional request, counsel representing the County produced complete copies of all interview tapes and transcripts, requested micro-cassettes, and the daily worksheets B and explained, in an accompanying letter, that "the radio transmissions [were] no longer available" but that "the audio portion of the videotape contain[ed] the request for the paramedics and the dispatcher's acknowledgment thereof." The letter was supported by a declaration from a Sheriff's Department Communication Operator explaining that a search had been made for tapes of the radio communications but none had been found B because section A26202.6 allows for the destruction or reuse of telephone and radio communications after 100 days. The Los Angeles County Board of Supervisors established a policy of retaining the tapes for 120 days."

Plaintiffs moved for sanctions against the County and the Sheriff's Department on the ground that they had, in bad faith, destroyed the mobile digital and voice recordings made at the time of Nelson's arrest and death. The County and Sheriff's Department opposed the motion on the ground that they were legally entitled to destroy "recordings of telephone and radio communications," relying on Government Code ' 26202.6 B which authorizes the destruction of "recordings of telephone and radio communications" after 100 days unless the recordings and communications Aare evidence in any claim filed or any pending litigation@ B meaning that a duty to preserve such evidence does not arise absent actual notice of a claim or pending litigation. The trial court denied Plaintiff's motion.

The California Court of Appeal, Second Appellate District held that a government tort claim filed with the county in conformance with Government Code ' 911.2 constitutes actual notice to the county that a "claim" is pending within the meaning of Government Code ' 26202.6.

The Court pointed out that since Government Code '26202.6 was directed at cities, counties, and public safety departments B all government agencies B and since the Legislature was fully aware that, in most instances, a "claim" must be filed with such agencies as a condition precedent to any lawsuit, it followed that the Legislature intended a claim filed pursuant to ' 911.2 to suffice as notice of a "claim" within the meaning of ' 26202.6. (Lewis v. Superior Court, 19 Cal.4th 1232, 1245 (1999).)

/ How this affects your agency:

A process must be set in place to insure that copies of all claims filed with the hiring authority, where the loss, harm or hardship of the claimant is alleged to have been caused by the conduct, acts, or omissions of a department employee, must have a copy routed to the department. Receipt should then trigger notification to communications, records, property and data processing, to preserve any and all data until further notification.

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Officer's Threat To Sue For Defamation Under CC 47.5 Not "Under Color Of State Law"

GRITCHEN v. COLLIER 2001 DJDAR 5955; 2001 WC 649904

After Gordon Collier, a Long Beach Police Officer, stopped Myron Gritchen and gave him a traffic ticket for speeding, Gritchen filed a citizen complaint with the Department alleging Collier had been discourteous and argumentative, and his breath smelled of alcohol. The Department found no misconduct, and so advised Gritchen. Collier then sent Gritchen two letters. The first, sent by his attorney, indicated Collier intended to bring suit for defamation, the second, offered to settle for $4,500, otherwise Collier would seek damages exceeding $5,000 for slander and defamation in small claims court.

Gritchen filed a 42 U.S.C. 1983 complaint in the United States District Court for the Central District of California alleging Collier threatened to sue because of Gritchen's citizen complaint and that California Civil Code section 47.5 created an impermissible legislative classification which is facially unconstitutional under the First and Fourteenth Amendments. The suit also sought injunctive relief restraining Collier from proceeding with his threatened lawsuit.

The district court certified to the Attorney General of California that the constitutionality of section 47.5 had been called into question, as required by 28 U.S.C. 2403(b). The Attorney General elected to take no part in the proceedings. The district court granted Gritchen's motion for summary judgment, holding that Collier acted under color of law because all the relevant events arose out of the performance of his job as a police officer. The district court ruled that section 47.5 was facially unconstitutional because it treats citizen complaints against police officers differently from complaints against all other government officials and thereby makes an impermissible content-based discrimination against a type of speech.

The United States Court of Appeals, Ninth Circuit reversed, holding that Collier's threatened suit for defamation, being private, was not under color of law nor amounted to state action for the purposes of relief under 42 U.S.C. 1983.

The Court of Appeals noted that, unquestionably, Collier was acting under color of state law when he stopped and ticketed Gritchen, however, that activity was not at issue. Just because Collier was a police officer does not mean that everything he does is state action. As the Court explained in Van Ort v. Estate of Stanewich, 92 F.3d 831 (9th Cir. 1996), "[i]f a government officer does not act within his scope of employment or under color of state law, then the government officer acts as a private citizen."

The Court pointed out that no one suggested that threatening suit or bringing it was one of Collier's duties as a police officer. The Long Beach Police Department had nothing to do with Collier doing so, its approval was not required, nor would its disapproval matter. Collier's decision to threaten suit was not subject to the control of the Department. Pursuing private litigation did not abuse Collier's position or authority as a police officer and Gritchen did not argue otherwise. A defamation suit is quintessentially personal. Therefore, the court concluded, as Collier was not acting under color of law in threatening to sue for defamation, he cannot have deprived Gritchen of a constitutional right.


/ How this affects your agency:

Any provision in an agency's manual that attempts to require personnel to notify administration prior to bringing a civil action, other than for workers compensation, should be deleted. Departments should neither encourage or discourage officers from bringing any action authorized by statute.

[The Law Offices of Jones & Mayer located in Fullerton, California focus its practice on representing the interests of public entities as its City Attorney, in labor negotiations, in defending tort litigation and civil rights litigation. Martin Mayer focuses his practice in the area of representing cities, counties and the State on matters arising out of their respective law enforcement agencies.]

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 or wish to discuss these cases in more detail, please do not hesitate to call us at (714) 446-1400.

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