Courts clearing up police liability, immunity

There are encouraging signs that both state and federal appellate courts are addressing distorted interpretations of statutory law which mar the field of governmental liability and immunity. Such laws otherwise unfairly bend towards police defendants in civil cases alleging misconduct. Leveling the field restores coherence, neutrality and legitimacy, serving justice, deterring abuse and promoting evolving standards of professional policing. These values are as important as ever, particularly given the plethora of questionable police shootings captured in recent years on video.

For example, in Cornell v. City and County of San Francisco, 2017 DJDAR 10955 (Nov. 16, 2017), California's 1st District Court of Appeal delivered a scholarly and thoughtful opinion clarifying an important bone of contention between plaintiffs and mostly police defendants regarding California's Bane Act.

Codified at Civil Code Section 52.1, subsection (a) covers situations where "a person or persons, whether or not acting under color of law, interferes by threat, intimidation, or coercion, or attempts to interfere by threat, intimidation, or coercion, with the exercise or enjoyment by any individual or individuals of rights secured by the Constitution or laws of the United States, or of the rights secured by the Constitution or laws of this state."

Subsection (b) provides such aggrieved individuals with a civil tort remedy. Thus, persons who suffered violations, such as the right to freely speak, be free from an unlawful search or seizure, or free from the deprivation of life or property without due process, have a legal mechanism to seek damages, injunctive or equitable relief and attorney fees.

The plaintiff in Cornell seeking damages under, inter alia, Section 52.1, was an off-duty police cadet. When he took a rest on "Hippie Hill" while jogging in Golden Gate Park, he fell under suspicion of San Francisco police officers who asserted the area was known for illicit drug transactions. They claim he looked suspiciously clean cut like a person on parole or, one officer was forced to concede on cross-examination, like a police cadet. Moreover, he allegedly appeared nervous when he glanced at the officers. The cadet resumed his run. The officers took after. One officer pulled a gun threatening to shoot him if he did not stop. He didn't, it being unclear whether he fully understood who and why the command was issued. Ultimately they found him. He surrendered without further incident.

After a six-hour detention and several unsuccessful attempts to implicate the cadet in a crime, he was released, cited for willfully resisting, delaying or obstructing peace officers, a violation of California Penal Code Section 148. During the detention, officers mocked the cadet's impending loss of a law enforcement career, "another one bites the dust." Thereafter, the district attorney declined to prosecute, unsurprising given the palpable absence of probable cause. Nonetheless, the cadet's police employer reflexively fired him.

The superior court, after 23 days of trial and after reviewing the jury's answer to 35 questions, directed verdict for false arrest in the cadet's favor. The jury in the second phase of the trial, mindful of plaintiff's impaired career, returned damages of $575,231. The court additionally awarded over $2 million in attorney fees. The reviewing court upheld the judgment.

Turning to liability under Section 52.1, where, among other issues, attorney fees are at stake, defendants contended that, even if it was a false arrest, the defendant officers should not be held liable under 52.1 because they did not separately interfere by threat, intimidation or coercion, otherwise required by the statute to establish liability. The defendants invoked Shoyoye v. County of Los Angeles, 203 Cal. App. 4th 947 (2012), for the proposition that the Bane Act "requires a showing of coercion independent from the coercion inherent in the wrongful detention itself." None of the alleged mistreatment of Cornell, defendants argued, was meaningfully discrete from his arrest.

The reviewing court, however, distinguished Shoyoye. Therein, a negligent error to check a computer resulted in overdetention of someone otherwise legally arrested. That, the Shoyoye court held, is insufficient scienter to support liability under Section 52.1. There had to be, rather, "an additional showing of ill will or blameworthy conduct."

Cornell, by contrast, did not need a discrete event. The circumstances of his arrest inherently provided sufficient evidence of threat, intimidation or coercion. The Cornell court, therefore, concluded that other courts that had interpreted Shoyoye to require logically discrete evidence of threat, intimidation, or coercion in similar contexts of false arrest or excessive force, missed the mark.

Expanding on its analysis, the reviewing court directed attention to the plain language of the statute, noting that nothing in the statute's text requires that the offending "threat, intimidation or coercion" be "independent" from the alleged constitutional violation. Indeed, the plain meaning of the statute indicates the interference with rights be "by threat, intimidation or coercion."

The court then surveyed both federal and state civil rights law for the closest statutory analogue to the Bane Act for purposes of setting a standard for the scienter necessary to state a violation. It settled on the interpretation of 18 U.S.C. Section 241 which, albeit a federal criminal statute proscribing conspiracies against civil rights, provides the closest language and supporting analysis to the Bane Act. Borrowing from Screws v. United States, 325 U.S. 91 (1945), and People v. Lashley, 1 Cal. App. 4th 938 (1991), the Cornell court set the following two part test for establishing specific intent: (1) Whether the right at issue is clearly delineated and plainly applicable under the circumstances of the case?; and (2) Did the defendant commit the act in question with the particular purpose of depriving the citizen victim of his enjoyment of the interests protected by that right?

Both were plainly met in Cornell. And from here and -- one hopes -- on out, this issue is settled for similar police misconduct cases concerning issues of illegal searches or seizures. There will still be argument regarding whether the Screws test is the best formulation, but the notion that "threat, intimidation, or coercion" separate from the underlying violation is a requirement in such cases should be, once and for all, off the table.

Having lost on the underlying issue of liability, the Cornell defendants asked then for qualified immunity under state law. California Government Code Section 847 immunizes officers where the officer had reasonable cause to believe the arrest was lawful. Defendants argued "reasonable cause" is not the same as "probable cause," an issue on which they had already lost. Both the trial court and reviewing court correctly ruled otherwise.

But defendants added a novel twist in search of a better second bite at the apple. They proposed that the state court should read into the statute the entire federal court qualified immunity doctrine, developed over the last several decades in the context of Fourth Amendment claims being brought under 42 U.S.C. Section 1983. The court declined.

It is a bad idea for at least two reasons. First, such importation runs counter to the plain language of Section 847. There is, in the plain terms of the statute, no such hidden invitation to dance.

Second, federal qualified immunity doctrine is atrocious. The doctrine has no foundation in any statutory text. There is no congressional history suggesting that such qualified immunity was ever contemplated when the precursor to Section 1983, the Civil Rights Act of 1871, was enacted. Nor does its modern iteration share even a family resemblance to any of the state immunity doctrines in place in 1871 that federal courts nearly a century later ruled Congress must have implied when enacting the legislation. The doctrine is, rather, part of a sad history of federal courts blunting the impact of one of the most remarkable and unprecedented enactments on the books -- a statute which, in the aftermath of the Civil War and Reconstruction strife, broadly and radically gave all persons, regardless of color, a tort remedy for violation of their federally protected rights against persons acting under color of law, that is, against their own sometimes overweening government.

No less than Justice Clarence Thomas has called for reconsideration of qualified immunity jurisprudence, a point which the Cornell court noted. Dissenting in Ziglar v. Abbasi, 137 S. Ct. 1843 (2017), he lamented that the court's qualified immunity precedents represent precisely the sort of "freewheeling policy choice[s]" that judges of his ilk have previously disclaimed power to make. Justice Thomas' interjection is entirely consistent with his textualist jurisprudence. It nonetheless surprises because his jurisprudence also typically stresses the importance of limiting federal constitutional rights and fortifying federalism. Consequently, his vote often falls on the side of state and local government actors against individual plaintiffs asserting federal rights and remedies under Section 1983.

In this instance, though, Justice Thomas is right. Bramble inside the doctrinal garden of Section 1983 needs weeding. Likewise, the Cornell court is right to keep such detritus outside the state fence. These welcome developments will provide clearer paths setting the appropriate limits of police power and what commensurate modern training, supervision and discipline is required. Courts tending this garden shape a more secure and robust liberty.