Government Speech vs. Compelled Private Speech

When the California Medical Board requires a private continuing medical education (CME) provider to include curriculum on implicit bias in medicine, is that government speech or is it compelled private speech that runs afoul of the First Amendment?

Oh Doctor, I’m Damaged: Whether speech is treated as “private” or “government” in nature can be a tricky boundary to draw when the government is exerting control over what a private actor must or must not express. Photo by National Cancer Institute on Unsplash.

A panel of the Ninth Circuit previously concluded in Khatibi v. Hawkins that it was government speech, and thus not subject to First Amendment protections, in spite of the plaintiffs’ arguments that the government was improperly forcing them, as individuals, to express a viewpoint with which they disagreed. Now the Ninth Circuit has denied en banc rehearing of that decision, and there are some spicy dissents from that denial, which argue that the panel got the analysis wrong.

As a side note, the notion that “implicit bias” in medicine is controversial or problematic as an idea strikes me as incorrect. Implicit bias exists throughout life, not because people are intentionally racist or bad but simply because we tend to favor people who appear to fit with our own vision of the world and our sense of who we are, and implicit bias unquestionably affects the way medicine is delivered. If you happened to see that recent appalling viral video of an African-American woman in Dallas being ignored while in active labor in a waiting room, that was a good example, but there is also plenty of empirical research on the subject. Implicit bias is a real and powerful thing.

But put that to the side. Suppose the content of the mandated expression is not about implicit bias, but rather about the historically misleading ideas that have been advanced by the current administration around the treatment of African-Americans under slavery. Now what? For the sake of argument, would it still be okay to require private CME providers to give voice to those perspectives?

In general, there are fairly narrow limits on what sorts of speech the government may compel a private actor to express: compelled private speech is subject to strict scrutiny, which is why we get cases like 303 Creative, where the Supreme Court concluded that a website designer could not be forced to make a website for a same-sex marriage, in spite of the state of Colorado’s public laws prohibiting businesses from discriminating. The implicit bias content in Khatibi probably would not pass strict scrutiny if it were regarded as private speech, since there are plenty of other ways that the Medical Board could convey its message to doctors without requiring a private CME provider to express that message.

The idea of the Khatibi panel is that the CME curriculum is government speech rather than private speech, and is thus exempted from First Amendment protections. The panel wrote: “when California—from beginning to end—dictates, controls, and approves the provider, form, purpose, and content of CMEs, it is in fact the State that ‘speaks’ or expresses its views.” The panel compares this case to one that upheld mandatory funding of beef commercials by cattle ranchers and another that upheld Texas’ refusal to permit a specialty license plate featuring the Confederate flag. The dissenters from en banc rehearing, on the other hand, emphasize that there is a very broad degree of freedom given to CME providers about what their curriculum will be, except in this particular area, and thus that CME speech is unlikely to be perceived as “government speech” in the way that, say, a license plate would in the Texas case.

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First Amendment Retaliation Based on School Administrator's Derogatory Facebook Post

A derogatory and threatening political Facebook post by an assistant principal at a middle school could validly be the basis for adverse employment action against the poster, given the District’s interests, the Ninth Circuit concluded this week in Thompson v. Central Valley School District No. 365.

A proper education? Woodshed photo by Kevin Jarrett on Unsplash.

The assistant principal’s post, made in response to the 2020 Democratic National Convention, referred to “Demtards” and called Michelle Obama a “hatefull racists bitch” (sic). He further suggested that Democrats needed to be taken “to the woodshed for a proper education.” When the post was reported and investigated, the assistant principal claimed his Facebook account had been “hacked,” but had no evidence to support that claim. The District transferred the assistant principal, who then sued for First Amendment retaliation.

This type of case — in which a public employee claims to have experienced retaliation for protected speech — is analyzed under Pickering v. Bd. of Ed. of Twp. High Sch. Dist. 205, 391 U.S. 563, 568 (1968). Under Pickering, if the plaintiff is able to make a prima facie showing that adverse action was taken on the basis of protected speech, the defendant must then show either “(1) that its legitimate administrative interests in promoting an efficient workplace and avoiding workplace disruption outweigh the plaintiff’s First Amendment interests; or (2) alternatively, the government would have taken the same actions absent plaintiff’s expressive conduct.”

Here, the District Court concluded that the School District met its burden on the second step of the Pickering analysis, and the Ninth Circuit affirmed. The Ninth Circuit emphasized that the “derogatory” nature of the post and the implied violence of his reference to the “woodshed” matters in that second-step calculus, meaning that the speech was not entitled to the highest degree of protection. The District’s interests, on the other hand, were weighty given that the plaintiff was in a public-facing role and seemed to be broadcasting views inconsistent with the District’s expressed values. His “derogatory and violent language could substantially disrupt the orderly operation of the school,” even when expressed by this individual on a personal Facebook account.

This particular situation does not seem like too difficult an application of Pickering because of the concerns emphasized by the appellate court, but you can see where a public agency’s commitment to somewhat vague values like “inclusivity” and “tolerance,” and the argument that private speech interferes with those values, could potentially get into more ambiguous terrain. Suppose, for example, a public employee posts something on a personal page agreeing with a “derogatory” sentiment of the current president. What then?

Related Posts: Canyon Creek Elementary and First Amendment Issues at School

For free consultation about potential civil rights cases, call today.

Parental Rights and State Speech about Transgender Youth: Two Cases

Two recent federal cases, one in the Ninth Circuit and the other in the District Court, have grappled with the challenging question of what approach government officials must take in communicating with parents when youth present at government facilities in a gender-nonconforming way.

Both cases emerge from challenges to rules that restrict state actors from communicating with parents about these gender-related issues. In International Partners for Ethical Care Inc. v. Robert Ferguson, decided in early December by the Ninth Circuit, the law at issue was from the state of Washington and related to government employees of shelters and mental health care services. Whereas in Mirabelli v. Olson, decided shortly before Christmas, the case arose from a policy of the Escondido School District that was modeled on a policy developed by the California Department of Education.

In each case, the underlying idea of the policy or law is (or was: Escondido has changed the policy since the case started) to limit officials from communicating with parents about the fact that a youth appears to be gender-nonconforming. In International Partners, the plaintiffs lost on the grounds that they did not have standing to challenge the rule, and the Ninth Circuit upheld that loss, but some judges wrote strongly worded dissents from the denial of en banc rehearing, emphasizing parental rights to be informed about their children. In Mirabelli, on the other hand, the plaintiffs prevailed (at least for now, in the District Court), obtaining an injunction that bars the government from permitting or requiring educators to mislead parents about the child’s gender presentation, such as by referring to the child by different names/pronouns at school than in communication with the parent.

This area of the law strikes me as quite a tricky balance to strike. On the one hand, I strongly support the right of young people to live as they wish, including in gender-nonconforming ways, and there is a real concern that “outing” a young person to his or her parents as gender-nonconforming could lead to abuse or other forms of harm. On the other hand, there are complications to mandating theoretically “virtuous” silence or affirmative misrepresentation around these issues, because not everybody agrees on what virtue consists of, and government employees themselves have constitutional rights that deserve respect. Meanwhile, parents themselves historically have a strong interest in what they believe to be the welfare of their children, and that substantive due process right is not one that can be disregarded lightly. The parents in Mirabelli, drawing on Mahmoud v. Taylor, 145 S. Ct. 2332 (2025), also asserted that they have a First Amendment right to direct the religious upbringing of their children, and that a policy of non-disclosure interferes with that right.

In 2024, the state of California passed AB 1955, the SAFETY Act, which (among other things) prohibits requiring teachers to “out” students. The Mirabelli ruling asserts that it is “not about” AB 1955, and arguably there is some narrow sliver of light between the injunction and the law, since Mirabelli deals with not compulsory outing but compulsory silence. As a practical matter, however, since the injunction does not permit speech that seeks to shield a young person’s gender presentation, it does effectively require speech that will be outing in its effect, and thus strikes down the compulsory outing ban of AB 1955 without explicitly saying so.

For free consultation about potential civil rights cases, call today.

Ninth Circuit Rejects Use of No Contest Pleas to Establish Heck Bar

A nolo contendre plea in a criminal case cannot be used to bar related civil rights litigation under the rule of Heck v. Humphrey, a divided Ninth Circuit panel held this week in a remarkable decision in King v. Villegas, 23-1713.

The “Escape Key” to Heck Bars? King suggests a no contest plea is the way to go, at least if the opinion remains in force. Photo by Daniel Maquiling on Unsplash.

The rule of Heck bars a civil litigant who has suffered a criminal conviction from bringing a case under 42 U.S.C. section 1983 where success in the civil case would necessarily imply the invalidity of that criminal conviction. There are some exceptions to that general rule, which I’ve written about previously, but for the most part Heck is a serious obstacle to civil rights litigation stemming from a situation that ended up with a criminal plea.

In King, the Ninth Circuit panel concludes that use of a no contest plea to establish a Heck bar is itself prohibited by Federal Rule of Evidence 410(a) and, more strikingly, even concludes that the fact of the conviction itself also cannot be admitted for purposes of the Heck analysis.

Dissenting, Judge Callahan notes that the majority’s position “leads to the absurd result that federal courts will be unable to perform any Heck analysis in nolo contendre cases, which are commonplace.”

Look for the cert petition, coming soon!

Related Posts: Avoid a Heck Bar: Preserving Excessive Force Claims in “Resisting Arrest” Cases After Lemos v. County of Sonoma.

For free consultation about potential civil rights cases, call today.

Canyon Crest Academy and First Amendment Issues at School

This weekend’s coverage in the San Diego Union-Tribune about two students who wrote an investigative report on Canyon Crest Academy Foundation illustrates a reality that was always very disappointing to me as a young person and scribbler of occasionally controversial ideas: namely, that schools ultimately don’t give a damn about student journalism if that journalism takes aim at the institutions of the school itself.

Up and Away: A graph from the students' report on the Foundation shows the ballooning of the amorphous "other" expense category over time.

Instead, schools who are the subject of critical reporting behave like most other corporations out there, and in fact they tend to be among the more shameless of corporate actors in their single-minded focus on only their own interests. So, instead of upholding values like transparency, or good faith debate about matters of public concerns, or, whatever other First Amendment-related ideal, they instantly circle the wagons, and blame the messenger. They do that even when doing so involves trashing the reputation of their own students.

In this case, the principal of Canyon Crest Academy has “condemned the report and reprimanded its authors,” according to the Union-Tribune, never mind that the report seems to have identified serious questions about the Foundation’s former leadership and accounting to the tune of several hundred thousand dollars. It is unclear if any formal discipline will be imposed, but the general approach of attacking the students’ reputation in the media is already, I would say, an adverse impact.

The principal is quoted as saying that “while the school board acknowledges the First Amendment’s freedom of speech protection, the board ‘also expects that all speech and expression will reflect norms of civil behavior on district grounds.’ ”

But the students are not on “district grounds”: their report is on an independent website. So what standards apply here?

In a way, this report is merely one example of a phenomenon that comes up frequently now in connection with social media, which is Internet posting by students about content that is school-related but which is not hosted on school servers or presented via school media. A very different variation on the same theme are the recent reports about deepfake pornography created by male students targeting female students, though that example does not involve the significant public accountability thread that is present in the Canyon Crest scenario.

Student speech rights are not as broad as those of adults, and can be regulated in certain ways (for example, speech advocating drug use is subject to limitation under the famous “Bong Hits 4 Jesus” case, Morse v. Frederick). When it comes to off-campus speech of the sort that is going on in the Canyon Crest case, the relevant question is whether the speech “ ‘might reasonably lead school authorities to forecast substantial disruption of or material interference with school activities.’ ” Wynar v. Douglas County Sch. Dist., 728 F.3d 1062, 1067, quoting Tinker v. Des Moines, 393 U.S. 503, 514 (1969). Such “substantial disruption” might be expected, for example, in the deepfake example or in instances of expressing racist or otherwise deeply offensive points of view about students or faculty. See, e.g., Chen v. Albany Unified Sch. Dist., 56 F.4th 708 (9th Cir. 2022).

On the flipside, a student’s mere use of social media to express a pointed general sentiment, such as “Fuck school fuck softball fuck cheer fuck everything,” does not give the school the power to imposed discipline, since that sentiment, even if it expresses “negativity,” is very unlikely to cause a “substantial disruption” or to interfere with anybody in particular. Mahanoy Area Sch. Dist. v. B.L., 594 U.S. 180 (2021). Here, the report on the foundation strikes me as being much more like saying “fuck cheer” (or perhaps “fuck the way this foundation is being run”) than any sort of potentially disruptive or improperly personalized content. In fact, if anything, the authors of the report seem to be performing the valuable function of standing up for integrity and transparency, not actually trying to disrupt anything at all.

And Thank Goodness: High school students do, in fact, have the First Amendment right to say "fuck cheer fuck everything."

Which means that, at least in theory, the school should probably not be trying to shut down the authors, and the perceived “civility” of the report, or lack thereof, does not change that fact. (By the way: does it uphold “civility” for adults to trash student journalists in the media?) In any event, surprisingly often it’s the case that schools, despite the role they potentially could play in setting an example around the importance of public debate, lash out first in response to critical speech, and only sort out the legality of their own actions after the fact.

For free consultation about potential civil rights cases, call today.

No Duty to Protect, and None to Serve Either

A strange legal reality that many folks may not realize is that law enforcement does not actually have a duty to protect people from harm. They have a job to do that, for sure, but merely doing the job of law enforcement poorly or in an ineffective manner will not, in general, give rise to legal liability. The classic Supreme Court case on this idea is DeShaney v. Winnebago, from 1989.

The way the courts look at it is that officers have a duty to the general public … but not to any specific person. Therefore if a specific person gets harmed through some failure of law enforcement, that’s not the basis for a lawsuit.

Safekeeping: Law enforcement does not typically have a duty to keep individuals free from danger. Photo by Maxim Hopman on Unsplash.

There are exceptions to this general rule when the state itself creates a dangerous condition, and some of those exceptions occur specifically when individuals are held in a custodial environment, such as a jail.

So what about a situation like the fiasco in Uvalde, where law enforcement stood around and did nothing as 21 children were murdered in a mass shooting? Massive litigation has been launched in response to that incident, but some critics have been very skeptical about the prospects for that litigation to prevail. In that situation, as in every other, the overall optics of the situation may sway the legal analysis to a degree.

But the sobering baseline legal reality, in general, is that law enforcement is not on the hook merely because it fails to protect a particular person.

Switchblades and the Second Amendment

Are switchblades a type of “arm” that is covered under the Second Amendment right to bear arms? That’s a question I never even thought to ask until reading a Union-Tribune writeup (paywalled) on a federal suit brought by an Arizona group called Knife Rights.

California law, as criminal defense attorneys in this state know, has quite a few prohibitions against various handheld weapons that are not firearms. Switchblades are among the weapons that are prohibited, along with more obscure items like “slungshots.”

All the Small Things:  If a knife has a "detent," shown being cleaned here in an image from the helpful website KnivesandTools.com, that detail can distinguish it from a "switchblade" under California law.

By the way: what’s the diff between a “switchblade” and a mere folding knife? A switchblade, in California, is a pocket knife with at least a 2-inch blade that opens automatically via a “flick of a button, pressure on the handle, flip of the wrist or other mechanical device, or is released by the weight of the blade or by any type of mechanism whatsoever.” At the same time, however, the legal definition excludes a knife that “opens with one hand utilizing thumb pressure applied solely to the blade of the knife or a thumb stud attached to the blade, provided that the knife has a detent or other mechanism that provides resistance that must be overcome in opening the blade, or that biases the blade back toward its closed position.”

Why is one kind of knife okay, and the other not? And what the heck is a “detent”?

Somebody in the Legislature probably knew at some point, no doubt aided by some lobbying from sport knife manufacturers. But the distinction seems rather slim as a mechanical feature that makes the difference between one object being okay to possess and the other being criminal.

Knife Rights argues that California’s prohibition on “switchblade” knives runs afoul of the Second Amendment because switchblade knives fall within the standard for protected “arms” set out by the United States Supreme Court’s decision in N.Y. State Rifle & Pistol Ass’n v. Bruen, 597 U.S. 1 (2022). Bruen says that such arms (as relevant here) must be in “common use” today for self defense and be used in a “course of conduct” that is covered by the plain text of the Second Amendment.

Also clear as mud. That’s law for you.

At any rate, the federal judge hearing this case agreed with the California Attorney General that there is no triable factual issue as to whether switchblades are commonly used for self-defense. To me, the question seems less simple to resolve, because as the court’s order notes, the criteria for deciding whether a weapon is “commonly used” in the sense that matters under Bruen are not entirely obvious and I think most knife users probably are not really closely scrutinizing whether their knife has a “detent” and a bias toward the closed position. As Knife Rights emphasized, switchblades are legal in most states and there are quite a few of them out in use by the public, for better or worse.

For my part, I don’t love switchblades. Or firearms, for that matter. But the question isn’t what I personally like, and it also isn’t what the California Legislature would prefer. The question is what the Constitution permits. That question will have to be taken up on appeal, at least in this case.

Premises Liability in Jail and Prison Cases

Jails and prisons can be dangerous places, and sometimes it is the facility itself that is dangerous, not simply the people inside it. Facilities can be extremely dirty, leading to infections and sickness, can contain other sorts of environmental hazards, and can have physical conditions that are dangerous, leading to inmate and detainee injuries. As climate change accelerates, the unbearable and largely unmitigated heat of these places in the summertime is also potentially an issue.

A Slippery Situation: Jails and prisons can involve dangerous premises, but litigating these issues requires showing "deliberate indifference," which is more demanding than mere negligence.  Photo by Michael Pointner on Unsplash.

However, premises liability arguments in jail and prison cases, like arguments around medical care in the same places, involve higher burdens than are at issue in the free world. It’s not enough simply to show that a condition was dangerous or that the staff were “negligent”: the standard that must be met is “deliberate indifference,” which is akin to knowing and willful blindness to the existence of a serious problem. (The requirements for meeting this standard under the Eighth Amendment for prisoners are different than those under the Fourteenth Amendment for pretrial detainees being held in jails. The Eighth Amendment standard requires both a “subjective” and an “objective” showing of deliberate indifference, whereas the Fourteenth Amendment standard is only “objective,” meaning that it can be satisfied if a “reasonable officer” would have recognized the risk to the detainee.)

One of the most basic challenges with these types of cases will consequently be knowing enough information in the first place about who, in particular, at the jail/prison was (or should have been) aware of the dangerous condition, and when they knew (or should have known) about the condition, so that a case can survive an almost inevitable motion to dismiss that will need to be litigated before discovery can start. Bodycamera and surveillance footage may potentially be able to establish these points, but it typically won’t be available until the case reaches discovery. Therefore, in these kinds of cases, the perceptions of witnesses and, even more so, documentation of prior complaints about the dangerous condition are critical for success.

How Much Force Can Be Used to Remove a Person From a Car?

A recurring theme in videos of policing is the individual who refuses a law enforcement order to get out of a car. Often, these situations end with the use of force, even when the individual in the car isn’t doing anything affirmatively threatening to the officer.

The Sharp End of the Stick: A San Diego Police canine officer prepares to use the dog against a driver who refuses to get out of a car.

Sometimes this force tends, to the casual observer, to seem unnecessary or gratuitous. But is it “excessive” as a legal matter?

It depends.

The basic framework for this kind of question, as this blog has discussed before, comes from a multi-factor test set out in the 1989 case Graham v. Connor. To oversimplify somewhat, the standard for finding force to be “excessive” is a sliding scale. More force is appropriate when an officer is responding to a more dangerous crime and set of behaviors, while less is appropriate when these factors are absent.

The “getting out of a car” scenario is a subset of a larger group of cases that have to do with law enforcement officers ordering a person to come or go from some particular area and then using force when the person doesn’t comply, with other frequently seen examples including ordering inmates out of cells, ordering individuals to exit a room or a house, and ordering protestors to disperse from some particular area.

At least in theory, the mere act of passive “noncompliance” with a law enforcement order, in itself, does not warrant the use of “significant” force. Nelson v. City of Davis, 685 F.3d 867, 881 (9th Cir. 2012); Banks v. Mortimer, 620 F.Supp.3d 902, 925 (N.D. Cal. 2022). Therefore, the use of “intermediate” forms of force under those circumstances — with “intermediate” meaning things like baton blows or pepper spray — can be “excessive.” Sometimes the use of force against nonviolent protestors can be excessive for this reason, at least as long as the protestors really are in a mode of merely passively refusing to move and that noncompliance is the only crime at issue. The infamous UC Davis pepper spray incident, which was so over-the-top that it quickly became a meme (and which led to a $1 million settlement and policy reforms) is one such example of excessive force used against passive noncompliance.

Hot Ones: This 2011 use of pepper spray against merely passively noncompliant peaceful protestors at UC Davis during the Occupy Wall Street movement became famous because of the remarkably casual approach of the officer to the use of excessive force. Photo by Louise Macabitas.

But when it comes to individuals refusing to get out of vehicles, there are often other factors at play. In particular, these sorts of situations can sometimes occur in the context of traffic stops where the person in the car is suspected of having committed some other crime, up to and including a felony. That can change the force calculus significantly under Graham since felony traffic stops are treated as a high-risk situation for officers.

In the incident shown in the still above, officers used a police dog against a man who refused to get out of a stolen car on the side of a freeway after the use of verbal commands and pepper balls had already failed to produce any compliance. The entire freeway was shut down in one direction for about half an hour while officers tried to resolve the situation. The dog ultimately bit and injured the man, who was then pulled out of the car. The use of a canine is at least “intermediate” force and has been described as the most severe force authorized short of deadly force. Police dog bites can sometimes be incredibly damaging, in part because officers do not always have that much control over the animal once it is released. Fortunately, the man’s injuries, though significant, were not too extreme in this case.

In this situation, it is possible to Monday morning quarterback and think of other ways the man could potentially have been removed from the car. However, the fact that a serious degree of force was used was not necessarily “excessive” under the circumstances. The more iffy scenarios occur, typically, when the underlying offense leading to the interaction at the car is quite minor and there are alternatives available to the officer short of using a significant degree of force.

What is the Difference Between a Wrongful Arrest and Malicious Prosecution?

Law enforcement officers can violate the Fourth Amendment, and thereby open themselves up to liability under 42 U.S.C. section 1983 both by performance of an improper arrest and by something called “malicious prosecution.” But what’s the difference, and does this have anything to do with the actions of prosecutors, or is it just about police?

The more familiar idea, to most folks, is the bad arrest. A police officer or sheriff’s deputy stops and detains somebody, potentially escalating into a formal “arrest,” without a concrete basis to suspect that they’ve committed a crime. Under a straightforward application of the text of the Fourth Amendment, that’s an unreasonable seizure.

The idea of “malicious prosecution” is related, but it’s a little more complicated, in part because the idea of “malicious prosecution” is not actually found anywhere in the Fourth Amendment and is instead drawn from state common law. Malicious prosecution occurs based on “the wrongful initiation of charges without probable cause.” Thompson v. Clark, 596 U.S. 36, 43 (2022). Proof of “malicious prosecution” also generally requires showing a malicious motive for instituting the charges and termination of the case via acquittal or discharge. Id. at 44. Some caselaw interpreting California law also suggests a requirement of showing that the defendant prosecuted the plaintiff for the purpose of denying equal protection or another specific constitutional right. See Mills v. City of Covina, 921 F.3d 1161, 1169 (9th Cir. 2019).

Police officers take actions that “initiate charges,” so they can commit “malicious prosecution” even though officers are not themselves prosecutors. Chiaverini et al. v. City of Napoleon, Ohio, 144 S.Ct. 1745 (2024). Other state actors, such as a coroner or an investigator, can also commit malicious prosecution in some circumstances. Galbraith v. County of Santa Clara, 307 F.3d 1119, 1126 (9th Cir. 2002). Actual prosecutors on the other hand, are typically likely to rely on police reports that allege that crimes have occurred, and so are less likely to engage in “malicious prosecution” than law enforcement officers, unless they completely disregard what is suggested by the language of the police reports. Prosecutors also have a much broader range of immunities for their actions than do law enforcement officers, though police have various immunities as well.

Another interesting distinction between a “bad arrest” cause of action and a “malicious prosecution” cause of action is that they may “accrue” at very different times for purposes of determining when the statute of limitations begins to run. Most 1983 claims are subject to a 2-year statute of limitations (at least in California), but the time at which the claim accrues (starting the clock running) is governed by federal law. In a malicious prosecution case, the cause of action does not accrue until the criminal cause of action is terminated favorably to the plaintiff/defendant. McDonough v. Smith, 139 S. Ct. 2149, 2154-55, 204 L. Ed. 2d 506 (2019). Consequently, a malicious prosecution theory may be a way to pursue legal action against the individuals who caused charges to get filed in the first place (if the other elements of malicious prosecution appear satisfied) in a situation where a straightforward theory of a bad arrest would be barred by the passage of time for a person who has burned up years fighting the criminal case to a successful resolution.

Bodyweight Compression, Asphyxia, and Excessive Force

Can it be excessive force for police simply to put bodyweight on an unresistant person? It absolutely can, and it can be lethal.

Crushed: Bodyweight compression leading to asphyxia, as seen in officer bodycam in Scott v. Smith.

The most recent decision in this area from the Ninth Circuit just came out this week in Scott v. Smith, 23-15480, which denied qualified immunity to Las Vegas police officers who killed an unarmed, unresistant mentally ill man via compression asphyxia.

The Ninth Circuit panel notes that the use of bodyweight can amount to a very high degree of force, even if it is not, in the popular imagination, on a level of violence akin to shootings or dog bites:

Our precedent establishes that the use of bodyweight compression on a prone individual can cause compression asphyxia. Drummond ex rel. Drummond v. City of Anaheim, 343 F.3d 1052, 1056–57 (9th Cir. 2003). In Drummond, for example, officers “press[ed] their weight on [the plaintiff’s] neck and torso as he lay handcuffed on the ground.” Id. at 1056. This force was “severe and, under the circumstances, capable of causing death or serious injury.” Id. Drawing all reasonable inferences in Plaintiffs’ favor, a jury could find Smith and Huntsman’s conduct was similar deadly force.

Compression asphyxia also factored into the murder of George Floyd by Minneapolis police officers in 2020, an incident that galvanized the Black Lives Matter protests of that year.

How Do You Sue the Sheriff?

When a person has experienced police brutality or other serious constitutional violations at the hands of a sheriff’s deputy, there are ways to fight back.

Law enforcement can be sued for money damages when there is strong evidence that an officer or a deputy has violated the law.

But winning a lawsuit is not easy. Claims for police brutality, and other types of civil rights lawsuits, face many obstacles and hidden pitfalls.

Making a compelling argument for the value of the case can also be tricky. Some cases involve obvious costs like medical bills or property damages, but in other situations the nature of the harm has more to do with the violation of a legal right, which municipal agencies and defense lawyers may claim has no or very low value. That defense position is wrong, but to prove that it’s wrong is not a simple task.

If you have concerns about the way you or a loved one has been treated by a Sheriff’s deputy, get in touch. We can help.

Photo by Bonnie Kittle on Unsplash.

Why People Apologize for the Police

It never fails: a video is posted of police brutality and a chorus of knuckleheads in the comments chime in to blame the person harmed.

“Why didn’t they just comply?”

“They had it coming!”

And so on. Endless deference to the officer. Contempt and ridicule for the person who is being mistreated by an agent of state power.

The latest version of this is the video posted by daygotv of a San Diego police officer abruptly pushing a person to the ground merely because the person walked up to the officer’s bicycle at the perimeter of a detention. The victim does nothing remotely aggressive. It looks like they simply want to ask a question.

Blame the Victim: Instagram commenters pile on to defend law enforcement use of excessive force.

No matter: the commenters pile on, blaming the victim for the officer’s push. Monday morning quarterbacking a use of force that was not even vaguely justified by the circumstances.

This deep instinct of many members of the public to apologize for police brutality is a reality that we have to recognize in civil rights litigation. It’s frankly not that different from the way people normalize abusive personal relationships, telling themselves over and over that their partner/parent/etc. is fundamentally good despite the fact that they do awful things.

The psychological phenomenon that’s going on here is internalized violence. When a person has been abused long enough, they begin to accept the abuse as justified and normal, even if people who live under different, more humane conditions would be stunned and horrified to be subjected to the same treatment.

There is also more than a little cowardice behind such comments. Folks make themselves feel safer and more secure by siding with the abuser and blaming the person who was harmed, since taking that stance implies that they themselves wouldn’t ever be abused in the same situation. If they actually were harmed, they would of course want sympathy and outrage. But since it didn’t happen to them in this case, they prefer to side with the person causing the harm.

Psychological distortions are not the same thing as objective reality, and in situations like this they also don’t have any connection to the real state of the law. Any degree of force that is used where there is no need for force is, by definition and as a matter of settled precedent, excessive, and should be called out. No amount of blather from confused anons on Instagram changes that fact.

Related Post: When Is Force Excessive?, Oct. 9, 2023

What is the monetary value of constitutional rights?

What damages are collectible based on an unreasonable search, if nobody is physically harmed and no property is damaged?

The answer is: it depends on how you look at it. And it depends on what you are willing to fight for.

Defense lawyers will argue that there is no “harm” in this sort of scenario. No medical bills. No repair costs. From their point of view, it’s a big zero.

But the Fourth Amendment is not just a piece of paper.

The right to be from unreasonable searches and seizures is a basic part of what it means to be American. It’s an idea that we fought a war over. It’s a principle that distinguishes our system of government from that of more totalitarian nations.

As as iconic trial lawyers like Nick and Courtney Rowley have emphasized, a narrow focus on purely “economic” damages can make us miss the bigger, deeper narrative of a case, which sometimes has to do with these basic values — and with the extraordinary degree of disrespect that law enforcement sometimes demonstrates for these values, in spite of their charge to uphold the law.

When we help the defendants and the fact-finder understand this more fundamental story, we make the full value of constitutional rights apparent.

Photo by Lukas Juhas on Unsplash.

It's a Trap! For California Inmates, "Administrative Exhaustion" and Presentation of a Tort Claim Are Not the Same Thing

There’s more to litigating prison cases than “exhausting” the prison’s administrative grievance system. In fact, there’s a trap for the unwary built into the process.

Some California inmates know about the need to file a 602 grievance form, and then to completely exhaust the appellate process, in order to go to court related to any sort of incident in prison. That’s a mandatory requirement of the Prison Litigation Reform Act (PLRA) if the person who files the complaint in court is in custody.

What most folks don’t realize is that there is a second, parallel process that should also be going on at the same time that administrative exhaustion is happening: the inmate should also be submitting a government tort claim form. Without submitting that tort claim form, inmates risk being unable to raise causes of action under California law, because rejection of the tort claim is a requirement for asserting such state claims.

The “trap” created by these two different systems is that an inmate may focus on the “exhaustion” piece of the process and burn up precious time, not realizing that they only have six months from the time of the underlying incident (normally) to submit the tort claim.

By the time they’ve “exhausted” their claim, the time to file the tort claim may have run.

Don’t fall for the trap! Get your paperwork going right away. If you need help, get in touch.

Six Months: the Magic Number in Civil Rights Claims.

Six months. Learn it, love it, know it.

Six months is the deadline for filing an administrative claim in most incidents that give rise to civil rights-type lawsuits in California, such as the use of excessive force, or unreasonable searches.

That matters because the filing of the administrative claim (and having it rejected by the municipal agency), is a requirement for going to court and bringing a cause of action under California law against an agency.

It’s possible, in some circumstances, to file a late claim, even once the six months has run. But it’s much better to get that claim filed in a timely way in the first place.

It may also be possible to pursue a case based solely on federal law if too much time has passed to be able to raise state claims. But in the best case scenario, you should always try to hit that six-month deadline for filing the administrative claim because some causes of action under California have unique strategic advantages compared to their federal equivalents.

Time has a way of passing. Don’t delay!

If you have questions about how to file an administrative claim, get in touch. We can help.

Can the Use of an LRAD "Sound Cannon" Be Excessive Force?

A tool that law enforcement agencies sometimes use in the context of demonstrations and crowd control is the “long range acoustic device” (LRAD) or “sound cannon.” In a nutshell, an LRAD emits extremely loud, focused sound that is painful — and perhaps even damaging to the hearing — for the listener. Several southern California law enforcement agencies have been documented as having these devices, including the police departments of Los Angeles and San Diego.

In some documented cases, these devices have been employed fairly indiscriminately against groups of people for the purpose of denying access to areas, in essentially the way that tear gas or baton strikes might be used on a more individualized basis. Since the devices are physically uncomfortable and potentially even physically harmful to the listener, their use in this manner raises concerns about excessive force. When there is no specific basis for the use of force, even a somewhat restrained use of force, as the LRAD might seem to be, may nevertheless be “excessive.” New York City and Pittsburgh have both settled lawsuits filed by individuals who asserted that the use of LRAD caused them hearing injuries (see footage of the Pittsburgh use in the YouTube video posted above).

To my mind, the litigation around LRADs also raises interesting questions around practices such as playing extremely loud classical music in transit stations, as has been seen for example in some Los Angeles metro stations. Loud or extremely repetitive music, of course, has also been used as a means of torture in some situations. When sound is being used to intentionally inflict pain or discomfort on individuals who are not actually breaking any law, and when the actor using that sound is the state, questions of excessive force are always potentially relevant.

Related Post: When Is Force Excessive?, Oct. 9, 2023

Related Post: Preserving Excessive Force Claims in “Resisting Arrest” Cases After Lemos v. County of Sonoma, Sept. 16, 2022

When is Force Excessive?

As surprising it as it may seem, law enforcement use of force does not become “excessive” merely because an individual is seriously injured, or even killed, by that force. Instead, the legal analysis looks to a cluster of circumstances that describe the context in which the force is used.

Lethal Force: The fact that law enforcement force is serious or even deadly does not necessarily mean it is “excessive.” The analysis depends on the circumstances.

Under Graham v. Connor, 490 U.S. 386 (1989), courts look to several factors in deciding whether a particular use of force is “excessive.” Those factors are

(1) the severity of the crime being investigated,

(2) whether the suspect poses an immediate threat to officers or others, and

(3) whether the suspect is actively resisting arrest or attempting to flee.

In short, the “excessive force” analysis is a sliding scale, with more serious or risky situations generally justifying a faster, more dramatic use of force. On the other hand, the law — at least in the Ninth Circuit — is clear that when there is no call for the use of force, any use of force, even relatively minimal force, is “excessive.” See, for example, Headwaters Forest Defense v. County of Humbolt, 240 F.3d 1185, 1199 (9th Cir. 2000) and Lolli v. County of Orange 351 F.3d 410, 417 (9th Cir. 2003). What might be reasonable in one context can amount to police brutality in another context.

In the wake of a use of force by law enforcement, agencies whose officers have used force frequently put out press releases emphasizing whatever facts supported the officers’ action. However, that information is nearly always incomplete, and sometimes downright misleading. Since the “excessive” quality of force depends on the facts, an informed assessment of whether force was “excessive” requires an aggressive effort to learn all the facts — not simply the facts that law enforcement agencies wish to highlight.

Related Post: Preserving Excessive Force Claims in “Resisting Arrest” Cases After Lemos v. County of Sonoma, Sept. 16, 2022

California Public Records Act Statute Numbering Cross-Reference Update

I have posted another update to the California Public Records Act statutory numbering cross-reference chart here. As I mentioned previously, this chart is useful because when the California Legislature renumbered the CPRA they left no simple way to find the connection between the new and the old statutory numbers, and virtually all of the caselaw refers to the old numbers.