Ninth Circuit Sees First Amendment Issue Stemming from First Grader's Expression Punished by School

A first grader who was given a talking-to by her school principal and told to apologize after giving a controversial drawing to an African-American classmate had a viable First Amendment retaliation claim, the Ninth Circuit concluded this week in B.B. v. Capistrano United School District.

Drawing Conclusions: The first-grader’s drawing that gave rise to this dispute.

The first grader, B.B., made the drawing after a book was read to the class that had to do with the Black Lives Matter movement. She stated that “she included the phrase ‘any life’ in her drawing because ‘all lives matter,’ ” and she gave it an African-American classmate, M.C. The classmate, who was the only Black child in the class, took the drawing home, where it was found by the classmate’s mother. After the mother raised concerns with the school, the school principal then “took B.B. aside and told her that the drawing was ‘not appropriate,’ she was not to give drawings to other students, and she should apologize to M.C. B.B. thought that [the principal] used the word ‘racist’ to describe the drawing but could not remember for sure.” B.B. may also have been prohibited from going to recess, thought the evidence on this point is unclear.

The District Court had granted the school district’s motion for summary judgment, concluding that the drawing was not protected by the First Amendment. The Ninth Circuit reverses, applying the standard of Tinker v. Des Moines, 393 U.S. 503 (1969), which typically inquires whether expression caused “substantial disruption” at school but also contains language emphasizing that schools can act to protect students’ rights “to be secure and to be let alone.” Applying that “let alone” language, the Ninth Circuit concludes that schools can regulate student speech “when it involves derogatory and injurious remarks directed at students’ minority status such as race, religion, and sexual orientation.” (Internal quotations omitted.)

In this particular case, the appellate panel notes, there is conflicting evidence both as to whether there was a need to protect the student’s right to be let alone (M.C., the Black student, herself apparently did not give much thought to the drawing) and about whether the author of the drawing was in fact “punished” in any way. So the case needs to go to a jury, or at least it is not appropriate for resolution by summary judgment.

This is another case that strikes me as addressing quite a tricky area. Schools are in a difficult position because they can have legal exposure both if they don’t act (and thereby fail to protect a student from what they understand to be bullying) and if they do act. But it’s also tricky because students do not necessarily have a right, even under the “let alone” clause, to have schools insulate them from any perspective that they may find disagreeable or uncomfortable, and in some ways coming to appreciate differing perspectives on challenging issues is part of what an education is intended to deliver. So the question is how, as a practical matter, the “let alone” clause can be applied in a manner that simultaneously respects the intensely personal nature of some types of discussion and the fact that people may reasonably have differing perspectives on contentious issues, even when they have those sorts of personal impacts.

In Harper v. Poway United School District, 445 F.3d 1166 (9th Cir. 2006), which was later vacated as moot by the United States Supreme Court, the Ninth Circuit previously concluded that a school could sanction a student for wearing a t-shirt that disapproved of homosexuality on a day that the school had designated as a “day of silence” intended to "teach tolerance of others, particularly those of a different sexual orientation.” Harper is the source of the language that B.B. cites regarding comments on race, religion, and sexual orientation, and has been invoked by other school district defendants to assert that “California schools have an obligation to protect students from psychological assaults that cause them to question their self worth.” See J.C. v. Beverly Hills Unified Sch. Dist., 711 F. Supp. 2d 1094 (9th Cir. 2010).

This strikes me as a complicated proposition at best, because controversial subjects may well bear on the “self worth” of a person who is part of a group being discussed: that’s exactly why they are controversial. I am somewhat skeptical that the Ninth Circuit’s interpretation of Tinker’s “let alone” clause as applying to expression on a particular set of subjects — race, religion, and sexual orientation — would survive review by the United States Supreme Court if certiorari were granted. Difficult to know for sure!

Related Post: Canyon Crest Elementary and First Amendment Issues at School.

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First Amendment Rights of Public Employees and Volunteers Related to Speech and Religion

A public employee’s claim to have experienced retaliation on the basis of expression that is protected under the First Amendment 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.”

Images shared on social media that gave rise to the dispute in Lathus v. City of Huntington Beach, 56 F.4th 1238 (9th Cir. 2023).

However, when the nature of a public position is such that “party affiliation is an appropriate requirement for the effective performance of the public office involved” employment may be conditioned on such party affiliation. Branti v. Finkel, 445 U.S. 507, 523 (1980). As the Ninth Circuit put it, “the First Amendment does not succor casualties of the regular functioning of the political process.” Blair v. Bethel School District, 608 F.3d 540, 545 (9th Cir. 2010). There is a continuum of public positions from the highly political — i.e., the appointed staff of an elected leader — to the essentially apolitical, such as an administrative clerk, and the analysis of whether this exception applies will depend on where on that continuum a particular position is. In Branti, assistant public defenders could not be fired for being members of the Republican party even though their new boss, a Democrat, was an elected official. 445 U.S. at 519-520. On the other hand, when an assistant prosecutor announced a candidacy for the office of the prosecutor and was fired by the prosecutor already occupying that position, the resulting First Amendment claim failed because the assistant prosecutor position was viewed as “policymaking” and the firing was simply the give-and-take of the political system. Fazio v. City & County of San Francisco, 125 F.3d 1328, 1334 (9th Cir. 1997).

If the plaintiff is not an employee but rather a volunteer for a public agency, the retaliation claim is assessed under cases like Blair and Lathus v. City of Huntington Beach, 56 F.4th 1238 (9th Cir. 2023), which hold that an appointed volunteer may be dismissed for statements that might otherwise be protected by the First Amendment when “commonality of political purpose” is an appropriate requirement for the volunteer’s services. Lathus, 56 F.4th at 1241. In Lathus, a volunteer member of an advisory board for a city was photographed at a rally with supposed “antifa” members, and was then fired from that position on that basis, and her dismissal was upheld against a First Amendment challenge.

A public employee’s claim that their right to religious freedom has been impaired by their employer by singling out the religion in some fashion will probably be evaluated under Kennedy v. Bremerton Sch. Dist., 597 U.S. 507 (2022). Under that standard, if a plaintiff shows that a challenged policy burdens his sincere religious practice and is not neutral or generally applicable, the burden shifts to the government to “satisfy ‘strict scrutiny’ by demonstrating its course was justified by a compelling state interest and was narrowly tailored in pursuit of that interest.” 597 U.S. at 525. That test looks to the strength of the government’s interest. Religious expression can thus be “doubly protected” under both the Free Exercise and Free Speech Clauses. Id. at 543. The courts have seen a lot of litigation of these issues in connection with vaccination requirements imposed by public employers and the ostensible religious objections to such requirements. See, e.g., Bacon v. Woodward, 104 F.4th 744 (9th Cir. 2024). However, many vaccination requirements are facially neutral and generally applicable and thus do not trigger the Kennedy standard but rather a more deferential type of review. See Doe v. San Diego Unified Sch. Dist., 19 F.4th 1173, 1177 (9th Cir. 2021).

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Negligence Overview

In addition to (or as an alternative to) raising civil rights claims under federal law, plaintiffs in civil rights cases can sometimes assert related claims for negligence under California law. When the defendant is a government employee or government agency, there can be both advantages and complications to raising such claims.

Photo by Katelyn G on Unsplash‍ . ‍

The idea of negligence as alleged against an individual state actor has the same structure as in a claim against a private actor, requiring a showing of duty to the plaintiff, breach of that duty by the defendant, and causation of harm.

The initial existence of a duty may be a tricky factor in some situations where the nature of the state action is merely a failure to take some action because, as discussed elsewhere, state actors do not necessarily have a duty to ensure the safety of members of the public except in certain scenarios. But state actors do have a duty to use reasonable care in the way they perform their jobs. See, e.g., Munoz v. Olin, 24 Cal.3d 629, 634 (1979) (reasonable care required in the use of force). So when the state actor’s own actions are what causes a harm, there is the potential for a negligence cause of action. See Cal. Gov. Code, § 820 (“a public employee is liable for injury caused by his act or omission to the same extent as a private person“). In the context of excessive force claims, a state-law cause of action of negligence can be a useful component of a plaintiff’s case because the factors that are evaluated in determining negligence under California law are broader than the factors considered under the Fourth Amendment. Hayes v. Cnty. of San Diego, 57 Cal. 4th 622, 639 (2013).

Tricky questions can exist about whether a state actor’s acts were within the course and scope of their government employment.

As with any cause of action brought against a government defendant under California law, a claim for negligence must be presented to the relevant agency via a government tort claim and “exhausted” via the initial denial of that claim.

Assuming that occurs, it is then necessary to navigate statutory immunities. Government employees have discretionary immunity under California Government Code § 820.2. The idea of this immunity is that if an employee has discretion to perform a range of actions as part of his or her employment, then the selection of one of those options does not create liability, even if the employee is mistaken in their judgment. However, this immunity has been fairly narrowly construed, and obviously a public employee does not have “discretion” to, say, violate the federal Constitution, so this immunity may be of limited use to defendants in civil rights cases. See, e.g., Barner v. Leeds, 24 Cal.4th 676, 685 (2000). In a similar vein, Government Code § 820.4 creates an immunity for law enforcement officers who act while “exercising due care,” but the premise of a negligence claim is that such care was not exercised.

Vicarious liability for government employers based on the negligence of their employees will exist in some, but not all, situations under California Government Code § 815.2. Section 815.2 is an exception to the broad language of Government Code section 815, which states that “[e]xcept as otherwise provided by statute: (a) A public entity is not liable for an injury, whether such injury arises out of an act or omission of the public entity or a public employee or any other person.” Section 815.2, in turn, says that “[a] public entity is liable for injury proximately caused by an act or omission of an employee of the public entity within the scope of his employment if the act or omission would, apart from this section, have given rise to a cause of action against that employee or his personal representative” except “where the employee is immune from liability.”

Vicarious liability for employers does not exist when injuries to prisoners are based on employee negligence, with certain exceptions. Government Code § 844.6. See Lawson v. Superior Court, 180 Cal. App. 4th 1372, 1383 (2010). The exception that section 844.6 explicitly calls out is the failure to render emergency medical aid under section 845.6 if a situation where an inmate “is in need of immediate medical care and [the employee] fails to take reasonable action to summon such medical care.”

Negligent Hiring/Training/Supervision of employees can also give rise to liability for government employers in a manner that has parallels to a cause of action in federal law under Monell v. Department of Soc. Svcs., 436 U.S. 658 (1978). But California "does not recognize a general duty of care on the part of supervisors with respect to negligent hiring, retention, or training." Estate of Osuna v. County of Stanislaus, 392 F. Supp. 3d 1162, 1182 (E.D. Cal. 2019). So this type of claim is limited to specific situations. School districts, the California Supreme Court has held, may be held liable for negligent hiring because of the “special relationship” between schools and their students. C.A. v. William S. Hart Union High School Dist., 53 Cal.4th 861, 865-866 (2012). But in the same case the California Supreme Court stated: “Absent such a special relationship, there can be no individual liability to third parties for negligent hiring, retention or supervision of a fellow employee, and hence no vicarious liability under section 815.2.” 53 Cal.4th at 877.

This focus on the existence of a “special relationship” also suggests that jail and inmates may be able to assert such claims based on the special relationship that is understood to exist for individuals in custody, but there is also a considerable amount of bad law in this area, making these claims tricky. See Kendrick v. County of San Diego, No. 15-cv-2615-GPC (AGS), 2018 U.S. Dist. LEXIS 42185, 2018 WL 1316618, at *11 (S.D. Cal. Mar. 14, 2018) ("Plaintiff does not allege a special relationship existed between [the decedent] and Sheriff Gore. Therefore, Sheriff Gore cannot be personally liable for a claim of negligent hiring and supervision . . . ."); Fuentes v. City of San Diego, No. 3:16-cv-02871-BEN-JMA, 2017 U.S. Dist. LEXIS 96048, 2017 WL 2670976, at *3 (S.D. Cal. June 20, 2017) (dismissing claim because "Plaintiffs generally allege that the City and/or SDPD have a duty to protect people from harm and exercise care in selection, retention, training, and supervision of their employees. However, these alleged duties do not resemble the enhanced duties imposed on school personnel that formed the basis for their special relationship with the minor plaintiff in William S. Hart.").

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UNREASONABLE DETENTIONS AND UNREASONABLY PROLONGED DETENTIONS - OVERVIEW

While law enforcement officers do not need any evidentiary basis merely to speak to a person on the street, they do need to have a specific, particularized basis to carry out investigative detentions. If law enforcement carries out such a detention in the absence of a particularized basis for “reasonable suspicion” that a person is engaged in some kind of criminal activity, the detention can amount to a Fourth Amendment violation and be the basis for civil liability.

Inside Out: officers need particularized evidence of a crime to carry out investigative detentions. The scope of further searches that are permissible in such detentions, such a pat-down and rifling through the pockets, is a tricky, fact-based issue.

An investigative detention, which is sometimes called a Terry stop in the context of policing on the street, does not need “probable cause,” which is the level of evidence needed for an arrest: it will be legal as long as it is supported by “reasonable suspicion,” which is somewhat less granular than probable cause but nevertheless needs to be anchored in objective circumstances known to the officer and particularized to the individual being detained. The existence of such a stop depends on the totality of the circumstances and is triggered when a reasonable person would not feel “free to leave.” Brendlin v. California, 551 U.S. 249, 255 (2007). The analysis of that last factor is a little different than what common sense might imply, because most people don’t feel free simply to walk away from a police encounter under any circumstances. But the analysis does not begin and end there. Since it is a “totality of the circumstances” consideration, it looks to factors like the existence of multiple officers in the interaction, time and location, verbal commands, brandishing weapons, using handcuffs, using illumination (such as a spotlight) that makes a person understand they are the target of focused suspicion, and so on.

Another common variation of this standard occurs in a traffic stop, which also needs to be supported by “reasonable suspicion” that an occupant of the car has engaged in a crime, and has been explicitly analogized by the United States Supreme Court to a Terry stop. Rodriguez v. United States, 575 U.S. 348, 354 (2015).

Assuming an investigative stop is supported in the first place, a recurring issue in this area is what sort of searches officers can then carry out on the detained person or the items in their possession. Under Terry, it is generally acceptable for officers to carry out a pat-frisk of the detainee to ensure that they are not armed, if there is some specific basis to be concerned about weapons. Terry, 392 U.S. at 27-29. However, “A lawful frisk does not always flow from a justified stop.” Thomas v. Dillard, 818 F.3d 864, 876 (9th Cir. 2016), as amended (May 5, 2016) (quoting United States v. Thomas, 863 F.2d 622, 628 (9th Cir. 1988)). Rather, “[e]ach element, the stop and the frisk, must be analyzed separately; the reasonableness of each must be independently determined.” Id.

An initial pat-frisk can then give rise to bases to go through a person’s pockets, but it may be illegal for an officer to simply turn out a detainee’s pockets without performing any sort of pat-frisk or having any other reason to think that the contents of the pocket are an officer safety matter. United States v. Brown, 996 F.3d 998, 1009 (9th Cir. 2021); Sibron v. New York, 392 U.S. 40 (1968). In a similar vein, bags and purses carried by a detainee can be frisked where there is reason to believe that the bag may contain a weapon or contraband related to the crime that is being investigated. However, a investigative detention is not, in itself, a license for law enforcement to go rifling through a bag and just see what might turn up.

Fourth Amendment violations can also arise when a detention is unreasonably prolonged after reasonable suspicion of the original crime that supported the stop in the first place has been dispelled, such that the continued detention is little more than a fishing expedition for some sort of miscellaneous wrongdoing. Unreasonably prolonged detentions are a common theme of traffic stops, because the United States Supreme Court has given law enforcement the green light to carry out “pretextual” traffic stops (in which there is some technical violation, like a broken taillight or an illegal window tint, that supports the stop but the officer is actually looking for something else), and the officer who carries out such a pretextual stop will often then look for a reason to keep the stop going, to carry out searches of the vehicle, and so on, even when the driver really ought to be ticketed and released.

Needless to say, investigative detentions, and people’s responses to such detentions, are also a scenario that gives rise to many forms of use of force, and sometimes excessive force.

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RLUIPA Overview

The Religious Land Use and Institutionalized Persons Act (RLUIPA) is a federal law, 42 U.S.C.S. § 2000cc-1 et seq., that provides substantial protections for the sincere religious practices of incarcerated people. The standard it establishes is that if the government imposes a “substantial burden” on a religious practice, it must have a “compelling” governmental interest for doing so and must use the least restrictive means of advancing that interest. Effectively, RLUIPA creates a form of “strict scrutiny” for substantially burdening the religious practices of the incarcerated.

Photo by Jon Tyson on Unsplash‍. ‍

That RLUIPA standard that is considerably more favorable to the incarcerated plaintiff than a claim related to religious practices brought under the First Amendment, since First Amendment claims are reviewed under the deferential standard of Turner v. Safley, 487 U.S. 78 (1987) which lets restrictions remain in place as long as they are “reasonably related to a legitimate penological interest.”

But even under RLUIPA, it can be tricky to make out a case. The plaintiff has to meet that “substantial burden” standard, which has been interpreted as meaning the creation of "a significantly great restriction or onus upon such exercise” of religious practice. Warsoldier v. Woodford, 418 F.3d 989, 995 (9th Cir. 2005) (internal quotations omitted). Merely being offensive to a religious belief is not a substantial burden to that belief. Navaho Nation v. U.S. Forest Service, 535 F.3d 1058, 1070 (9th Cir. 2008).

The forms of religious practice that are potentially protected under RLUIPA are fairly broad. The statute defines “religious practice” as "any exercise of religion, whether or not compelled by, or central to, a system of religious belief." § 2000cc-5(7)(A).

Courts are also allowed to consider whether an individual’s commitment to a given religious practice is sincere or is based on “some other motivation.” Holt v. Hobbs, 574 U.S. 352, 361 (2015).

RLUIPA is somewhat unusual, compared to most other civil rights causes of action, in that it only authorizes suits against “a government,” and thus “does not authorize suits against a person in anything other than an official or governmental capacity.” Wood v. Yordy, 753 F.3d 899, 904 (9th Cir. 2014). That is the reverse of the way most civil rights actions are pled, namely against individual actors in their individual capacity. Note, moreover, that this requirement to proceed against “a government” means that a RLUIPA claim brought by an inmate of CDCR (the California state prison system) is very likely to run directly into the Eleventh Amendment if the case is brought in federal court, since suits against an individual correctional officer in his or her official capacity are treated as suits against CDCR itself, and CDCR is protected by the Eleventh Amendment. See, e.g., Holley v. CDCR, 599 F.3d 1108 (9th Cir. 2010). So not only does a RLUIPA claim need to be pled against defendants in their “official capacities,” but if it is being brought against state correctional officers for money damages, it also needs to be asserted in state court in order to avoid that Eleventh Amendment bar. See Williams v. Beltran, 569 F.Supp.2d 1057, 1065 (C.D.Cal. July 30, 2008).

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RLUIPA and Religious-Based Dietary Accommodations for Prisoners

The “centrality” of an incarcerated individual’s religious beliefs about dietary choices should not be second-guessed by courts, as long as those beliefs are sincerely held, the Ninth Circuit concluded this week in Harris v. Cleric Muhammad, 24-3307.

A Noodly Issue: Ramen may or may not be a perfectly “clean” food, but it may nevertheless be part of a sincerely held religious Buddhist belief in a diet that requires eating “clean.”

The appellant in Harris is a Nichiren Buddhist who has a sincere belief in the need to eat “cleanly,” and he had been approved for a halal diet that was an approximation of the “clean” diet he wished to maintain. However, since the halal diet was not always exactly consistent with his dietary needs, Harris also sometimes purchased non-halal food, including ramen that contained processed ingredients, from the prison commissary.

Noting these purchases, which did not seem particularly “clean,” the prison kicked Harris off of the halal diet program, though he asserted that “ramen soups are such a staple in Nichiren Buddhist culture that adherents promulgate, and work, in ramen restaurants.” Harris sued under Religious Land Use and Institutionalized Persons Act (RLUIPA), seeking an injunction. The District Court had concluded that he was unlikely to succeed on the merits.

In a nutshell, the RLUIPA says that if a government practice “substantially burdens” the religious exercise of a prisoner it must both further a “compelling” governmental interest and be the least restrictive means of furthering that interest. The district court concluded that Harris had failed at the outset to show substantial burdening of his religious exercise since the halal diet did not entirely fit with the needs of Nichiren Buddhism anyway, and thus that the exclusion from the halal program did not affect his ability to eat the way he desired.

The Court of Appeal views it differently, stating:

it is for Harris to determine whether being on [the halal diet] satisfies Harris’s Nichiren Buddhist beliefs. And if external forces cause Harris to fall short of the exact dictates of his religion, it is for him and his conscience, not us as courts, to decide what compromises are appropriate.

The Court of appeal agrees that there may be issues in some cases as to whether a given set of beliefs is “sincerely” held, and that, for example, “RLUIPA does not entitle insincere believers in the ‘Church of Surf ‘n’ Turf’ to luxury lobster and steak dinners.” But the analysis of “sincerity” of beliefs is different from the analysis of the “centrality” of those beliefs: the former may be scrutinized by the courts, whereas the latter may not.

The Court of Appeal further notes that it is still an unresolved question in this case whether the prison’s administration of its various dietary programs is the least restrictive means of furthering its compelling interests. Maybe it is, maybe it isn’t: that’s for the District Court to determine on remand. But Harris at least is able to make out the prima facie case of having a sincere religious exercise that is burdened by the prison’s policy prohibiting him from supplementing the halal diet.

Related Post: RLUIPA Overview

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Eighth Amendment Overview - AND LIMITS TO SUCH CLAIMS UNDER THE CALIFORNIA CONSTITUTION

The Eighth Amendment bar on cruel and unusual punishment has a number of applications to prison litigation. (Note that this section of law applies to convicted prisoners, whereas analogous claims from pretrial detainees held in a jail or other setting stem from the Fourteenth Amendment.) Some of the most common types of potentially viable claims under the Eighth Amendment are:

San Quentin prison. Photo by user Zboralski from Wikimedia Commons under a Creative Commons license.

Exposure to Dangerous Physical or Environmental Conditions. Knowingly exposing an inmate to a dangerous physical environment, such as a facility full of asbestos, may constitute deliberate indifference. Wallis v. Baldwin, 70 F.3d 1074, 1075 (9th Cir. 1995). Forcing an inmate to work with equipment that is known to be defective and dangerous, and thereby causing them to become injured, can also satisfy this standard. Morgan v. Morgensen, 465 F.3d 1041 (9th Cir. 2006).

Denial of Exercise and Recreation. Prisoners have a clearly established right to “outdoor exercise or otherwise meaningful opportunities for recreation” and the denial of that right for extended periods of time can constitute an Eighth Amendment violation. Cardenas-Ornelas v. Johnson, 24-6755.

Denial of Medical Care. The total denial of care for serious medical conditions can constitute deliberate indifference. Williams v. Andreasen, No. CIVS042515FCDEFBP, 2008 WL 508073, at *13 (E.D. Cal. Feb. 22, 2008), report and recommendation adopted, No. CIVS042515FCDEFBP, 2008 WL 895684 (E.D. Cal. Mar. 31, 2008). Note that while actually providing medical care to an inmate in a deliberately indifferent fashion can theoretically be the basis for liability, such claims are quite challenging in practice absent really egregious facts.

Failure to Protect from Assault by Other Inmates. A case in which prison officials failed to protect an inmate from assault by fellow inmates, Farmer v. Brennan, 511 U.S. 825 (1994) is often cited as source of the “deliberate indifference” standard itself. Such a failure can occur through not taking action, as well as acting in a way that knowingly exposes an inmate to harm. Clem v. Lomeli, 566 F.3d 1177, 1181-1182 (9th Cir. 2009).

Use of Force in a “Malicious” and “Sadistic” Manner. Whereas claims of “excessive force” are typically brought under the Fourth Amendment by plaintiffs who are not in custody, this type of claim is asserted under the Eighth Amendment in the prison context and requires a showing that the force used was employed “maliciously and sadistically to cause harm” rather than in “a good-faith effort to maintain or restore discipline.” Hudson v. McMIllan, 503 U.S. 1, 6-7 (1992). The requirement that force be used “sadistically” does not require a showing that the officer took pleasure from inflicting pain. Hoard v. Hartman, 904 F.3d 780, 782 (9th Cir. 2018). Nor does it necessarily require a serious injury, though the nature of any injury is relevant to the inquiry: “When prison officials maliciously and sadistically use force to cause harm, contemporary standards of decency always are violated. This is true whether or not significant injury is evident." Bearchild v. Cobban, 947 F.3d 1130, 1141 (9th Cir. 2020) (quotation omitted). The "core judicial inquiry" focuses on whether the forced used was "nontrivial and was applied maliciously and sadistically to cause harm," rather than on the "extent of the injury." Wilkins v. Gaddy, 559 U.S. 34, 39 (2010).

Excessive or Improper Segregation/Separation. The law on conditions in segregation is challenging. There are some relatively good cases on degrading or unhealthful conditions in segregation (see, e.g., Keenan v. Hall, 83 F.3d 1083, 1090 (9th Cir. 1996)), but merely being restrictive is not, in itself, an Eighth Amendment violation. Toussaint v. McCarthy, 801 F.2d 1080, 1106-1107 (9th Cir. 1986).

Claims of Deliberate Indifference in Transportation of an Inmate are challenging to make successfully, as there is SCOTUS authority that a mere car accident is not evidence of deliberate indifference. Parratt v. Taylor, 451 U.S. 527, 544 (1981). There needs to be evidence of additional, specific factors suggesting a subjective decision by correctional officials to ignore apparent risks to the person being transported, such as a refusal to provide a seatbelt to an individual who requests one. See James v. Pelayo, No. 1:25-cv-01399-JLT-SAB (PC) (E.D.Cal. March 5, 2026) 2026 U.S. Dist. LEXIS 45723.

At least in theory, equivalent claims could also exist under Article 1 Section 17 of the California Constitution, which also bars cruel and unusual punishment, but there is no private right of action for damages arising out of a violation of the cruel or unusual punishment clause of the California Constitution. See Giraldo v. Cal. Dep't of Corr. & Rehab., 168 Cal. App. 4th 231, 253 (2008). In other words, even if there is a violation of the law, an individual typically cannot bring an action to enforce the law. The types of claims that would be alleged as Eighth Amendment violations under 42 U.S.C. § 1983 could perhaps be alleged via the statutory “wrapper” of California’s Bane Act. That is so since objective deliberate indifference — which is a less challenging standard than the subjective form of deliberate indifference that must be shown under the Eighth Amendment — will satisfy the specific intent component of a Bane Act cause of action. See Est. of Hernandez v. San Diego County, 24-cv-00032-DMS-DEB at * 25-26 (S.D.Cal. Sept. 30, 2024) (“the Court has determined that the Complaint alleges a claim under the objective deliberate indifference standard. [Citation.] Thus, the Complaint states a Bane Act claim against Defendants”).

The clearest examples of this approach in the caselaw appear to be in the area of denial of medical care. See M.H. County of Alameda, 90 F.Supp.3d 889, 897 (N.D.Cal. April 17, 2013); Dixon v. Partida, 22-cv-04461-AMO (N.D.Cal. Nov. 10, 2025) 2025 U.S. Dist. LEXIS 221762 at * 31-32. It is unclear whether the use of a Bane Act “wrapper” would allow litigation of something like a denial-of-exercise claim purely under California law.

Prisoners' Rights to Exercise and Recreation, and the role of Administrative ExhaUstion in Showing Subjective Knowledge

It has been clearly established law since 2020, a Ninth Circuit panel concluded this week, that prisoners have an Eighth Amendment right to “outdoor exercise or otherwise meaningful opportunities for recreation.” Evidence that a Nevada prisoner was confined to his cell for 23 or 23 and a half hours a day for more than a year raised a triable issue of fact as to whether that right was violated, the appellate court concluded in Cardenas-Ornelas v. Johnson, 24-6755. The fact that the appellant could do in-cell exercise or walk to work was not an adequate substitute for conditions that permitted actual recreation, and the fact that the warden argued that this confinement was a response to COVID-19 did not defeat that conclusion.

Photo by Hédi Benyounes on Unsplash.

The length of the deprivation is important here. In Witkin v. Pittsley, 2:22-cv-1211 WBS CSK P (E.D.Cal. Oct. 1, 2025), a district court concluded that a 60-day suspension of outdoor exercise for an inmate was covered by qualified immunity. 2025 U.S. Dist. LEXIS 194849 at * 9-10.

The damages in this type of case will typically be based on the psychological impact to the prisoner, which is a potentially tricky issue because the Prison Litigation Reform Act normally requires a showing of physical injury in order for a case brought based on emotional damages to be brought. In cases where there has been extensive (i.e., more than six weeks) deprivation of exercise, however, there is precedent (in the Seventh and Ninth Circuits, at least) for the idea that the deprivation in itself is sufficient. Lopez v. Smith, 203 F.3d 1122, 133, fn. 15 (9th Cir. 2000); Delaney v. DeTella, 256 F.3d 679, 685 (7th Cir. 2001).  

Also interesting is the way Cardenas-Ornelas showed the subjective awareness of the defendant warden of the fact that this confinement was occurring and was excessive: namely because the warden personally denied his first-level grievance, and thus was put on notice of the situation. At least in this situation, then, the bureaucratic runaround of administrative exhaustion actually served some purpose in identifying who was responsible for what was happening.

Related Post: Eighth Amendment Overview

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Brady Violation Overview

Under Brady v. Maryland, 373 U.S. 83 (1963), the prosecution team has a duty to disclose exculpatory or impeaching evidence to a criminal defendant. Violation of this Brady duty by law enforcement or prosecutors can be the basis for arguments both by defendants/petitioners in criminal cases and by plaintiffs bringing civil rights claims under 42 U.S.C. § 1983.

See No Evil: Law enforcement can be subject to liability under Brady when it withholds exculpatory or impeaching evidence. Photo by Paulette Vautour on Unsplash.

To establish a Brady claim, a plaintiff must prove: (1) the withheld evidence was favorable either because it was exculpatory or could be used to impeach, (2) the evidence was suppressed by the government, and (3) the nondisclosure prejudiced the plaintiff. Smith v. Almada, 640 F.3d 931, 939 (9th Cir. 2011). A showing of prejudice requires demonstrating a “reasonable probability” of a more favorable outcome.

In the civil context, it is necessary to show that the actor who withheld evidence acted with at least “reckless disregard for an accused's rights or for the truth in withholding evidence.” Tennison v. City & County of San Francisco, 570 F.3d 1078, 1089 (9th Cir. 2009). This is more demanding than in the criminal context, where there is no requirement of any specific intent showing related to a Brady violation.

Note that civil Brady claims brought by an individual who is still convicted of the related crime are likely subject to a Heck bar. In other words, it is not typically possible to get anywhere in a civil lawsuit about the failure to disclose evidence related to a crime when the conviction for the crime itself remains in place. In such a situation, the more viable approach (or, at any rate, the approach that will not be blocked by Heck) would be to raise the Brady claim via petition for habeas corpus.

Some notable examples of claims that plaintiffs have brought in this area are Jane Dorotik’s case against San Diego County, which settled in 2025 for $500,000 after Dorotik spent 20 years in prison prior to her murder conviction being reversed and the charges dropped; Maurice Hastings’ 2025 $25 million settlement with the city of Inglewood after spending 38 years in prison for a crime he did not commit; and Daniel Saldaña’s $19.1 million settlement with Baldwin Park. Needless to say, these cases are outliers and spectacular high points in what is actually a very difficult area of litigation.

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

Switchblades and the Second Amendment AGAIN

The status of switchblade knives under the Second Amendment is back in the news this week because of a Ninth Circuit opinion upholding California’s prohibition on these weapons. As I mentioned the last time I wrote about this issue, this case involves an application of the United States Supreme Court’s game-changing 2022 Second Amendment opinion in N.Y. State Rifle & Pistol Ass’n v. Bruen, 597 U.S. 1.

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.

The federal District Court, which had upheld California’s ban on these knives, had done so by concluding that there was no way a jury could agree that switchblades were “commonly used” in contemporary society for self-defense. That conclusion seemed somewhat remarkable to me: switchblades are legal in most states, and California is an outlier in this regard.

On appeal from the grant of summary judgment, the appellate court simply looks to whether the trial court’s conclusion was correct, regardless of the reasoning that the trial court used to get to that conclusion. And so the Ninth Circuit upholds the trial court’s ruling not by relying on this point about whether switchblades are “commonly used” (and in fact emphasizes its belief that there seem to be “uncertainties in Bruen’s methodological framework”) but by looking instead to one application of the law that it agrees is viable under the Second Amendment: its ban on concealed carry of switchblades. As the panel notes, the existence of at least one Constitutional basis for the law necessarily defeats the challenge, since the challenge asserted a facial attack on the law rather than arguing that some specific application of the law was improper.

The odd thing about this analysis is that the actual text of California’s statute makes no explicit reference to concealing switchblades or possessing them in a concealed manner. However, the opinion states that “The parties agree that Penal Code § 21510(b) prohibits the concealed carrying of switchblade knives in public,” and that concession appears to be enough to resolve this issue, at least for the moment, because there is strong historical precedent for prohibitions on concealed weapons. An as-applied challenge to the law presumably may be coming soon.

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Procedural Issues that Recur in Civil Rights Litigation in California

Civil rights litigation is procedurally complex. These cases involve overlapping layers of state and federal law, tricky issues around forum selection and what sorts of claims can be presented, various kinds of administrative requirements that must be satisfied before a case can even begin, and limits on the sorts of recovery that are available depending on the identity of the plaintiff and the defendant or defendants. The following are some common procedural issues in this litigation:

Photo by Susan Q Yin on Unsplash‍. ‍

Administrative Exhaustion: cases that originate from jails and prison need to be “administratively exhausted” before they can be brought to court. The requirement comes both from the Prison Litigation Reform Act (“PLRA”) in federal law and from California’s own independent requirement of exhaustion. Plantier v. Ramona Municipal Water Dist. 12 Cal.App.5th 856, 865 (2017) (“when an applicable statute, ordinance, or regulation provides an adequate administrative remedy, a party must exhaust it before seeking judicial relief”). Administrative exhaustion requirements may also apply in cases arising from other contexts where administrative remedies are possible.

California Government Claims Act Compliance: cases that seek to raise causes of action under California law (as opposed to purely federal claims) must have been presented first via government tort claim to the relevant agency and must have received a turndown from that agency. That tort claim normally needs to be filed within six months of the underlying incident although the statute also provides for an opportunity to file late within one year of the underlying incident. Note that the tort claim deadline is not tolled while administrative exhaustion is pending, which can create a procedural trap for the unwarry.

Eleventh Amendment Bars: Because of sovereign immunity created by the Eleventh Amendment, federal courts do not have power to hear suits against a “state or its agencies.” Romano v. Bible, 169 F.3d 1182, 1185 (9th Cir.1999) (citing Pennhurst v. Halderman, 465 U.S. 89, 100, 104 S.Ct. 900, 79 L.Ed.2d 67 (1984)). This immunity protects the state of California, and it also protects state agencies such as the California Highway Patrol. Sims v. Lee, 651 F. App'x 570, 571 (9th Cir. 2016) ("The district court properly dismissed as barred by the Eleventh Amendment Sims' claims against . . . the California Highway Patrol"). It applies to CDCR.  Brown v. California Dep't. of Corr., 554 F.3d 747, 752 (9th Cir.2009). It applies to CalTrans. Nat'l Res. Def. Council v. Cal. Dep't of Transp., 96 F.3d 420, 421 (9th Cir. 1996)  It applies to school districts in California.  Belanger v. Madera Unified Sch. Dist., 963 F.2d 248, 254 (9th Cir. 1992) and Cole v. Oroville Union High Sch. Dist., 228 F.3d 1092, 254 (9th Cir. 2000). A California county, however, is not a “state agency” for purposes of this immunity. Ray v. County of Los Angeles, 935 F.3d 703, 713 (9th Cir. 2019); but see Contreras v. City of Compton, CV 17-8834-R (C.D.Cal. July 12, 2018) 2018 U.S. Dist. LEXIS 225752 at * 13.  A District Attorney acting in the capacity of prosecuting criminal violations of state law is a state actor and is entitled to Eleventh Amendment protections.  Contreras, 2018 U.S. Dist. LEXIS 225752 at * 13. 

Other PLRA Hurdles in Jail and Prison Cases: In addition to the administration exhaustion requirement noted above, cases brought by incarcerated persons about jail conditions and seeking money damages on the basis of federal law must contend with several other limitations imposed by the Prison Litigation Reform Act. One such limitation is that compensation for emotional damages can not be recovered without a showing of some non-trivial physical injury or sexual assault. The Ninth Circuit, which is among the circuits that take a somewhat more lenient approach to this “injury” requirement than other federal circuits, has held that the lack of an injury does not bar recovery for “compensatory, nominal or punitive damages [that] are premised on alleged [constitutional] violations, and not on emotional or mental distress suffered as a result of those violations.” Oliver v. Keller, 289 F.3d 623, 630 (9th Cir. 2002). The PLRA further creates screening requirements on suits filed by prisoners, in which the courts apply an additional filter on inmate-filed suits to weed out frivolous claims, and puts limits on the attorney fees that are recoverable in cases to which the PLRA applies.

Private Right of Action: Not all laws can be enforced by an individual plaintiff via a lawsuit. Some can only be asserted by a law enforcement agency such as the California Attorney General. For example, Article 1 Section 17 of the California Constitution contains a bar on cruel and unusual punishment, but there is no private right of action for that provision, so it generally cannot be the basis for a suit by an individual. Giraldo v. Cal. Dep't of Corr. & Rehab., 168 Cal. App. 4th 231, 253 (2008).

Qualified Immunity: An entire treatise could be written purely about the judicially invented doctrine of qualified immunity, but in a nutshell qualified immunity is a barrier to suits under federal law for money damages unless the underlying legal principle was “clearly established” at the time of the alleged violation. The contours of what constitutes a “clearly established” precedent are murky: some courts insist that there needs to have been a prior case decided with factually very similar circumstances in order for government actors to have fair notice of the illegality of their conduct, whereas other courts may take a more common-sense approach or even may forgive the need for clearly established precedent where the illegality of the conduct is “obvious.” See, e.g., Hope v. Pelzer, 536 U.S. 730 (2002). A lot of strategic thinking on the plaintiff side goes into to seeking ways to avoid qualified immunity, either through the use of state-law causes of action or through Monell claims, neither of which are subject to qualified immunity.

Standing: “Standing,” put simply, is the right to act as a plaintiff in a case, which typically only exists if an individual has been impacted in some way by the actions of the defendant. Although standing is uncontroversial where the plaintiff was directly harmed by the defendant, civil rights cases are often brought by family members on behalf of a person who was harmed or killed. Standing to pursue a wrongful death action under California law is governed by Code of Civil Procedure Section 377.60, which, in particular, permits parents to bring a wrongful death case on behalf of a deceased child only if “they were dependent on the decedent.”

Supplemental Jurisdiction (or the Lack Thereof): To litigate in federal court, it is necessary for there to be “subject matter jurisdiction” — in other words, a basis for the federal court to exercise jurisdiction over the case. In most civil rights litigation, such jurisdiction exists in the first place because of a claim that some federal statute has been violated, but litigants frequently also assert causes of action under the law of a particular state, such as the law of the state of California. The federal court has “supplemental jurisdiction” to hear the state claims along with the federal claims. But if all federal causes of action fall out of the case — for example, if the court grants a motion to dismiss all federal claims — federal courts will frequently decline to exercise jurisdiction over the components of the case that are purely a question of state law. The plaintiff will then have the opportunity (or the burden, depending on how you look at it) to start the case over in state court.

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False Arrest or Imprisonment - California Law Overview

Under California law, the civil versions of “false arrest” and “false imprisonment” are the same tort: false arrest is considered simply “one way of committing a false imprisonment.” Watts v. Cnty. of Sacramento, 256 F.3d 886, 891 (9th Cir. 2001). This cause of action will sometimes be brought as a companion to a claim under federal law for an unreasonable detention in violation of the Fourth Amendment.

The elements of this tort, under California law, are (1) the nonconsensual, intentional confinement of a person, (2) without lawful privilege, and (3) for an appreciable period of time, however brief. Young v. Cnty. of Los Angeles, 655 F.3d 1156, 1169 (9th Cir. 2011). The core jury instructions are CACI Nos. 1401 and 1402.

Under California law, an officer has probable cause for a warrantless arrest “if the facts known to him would lead a [person] of ordinary care and prudence to believe and conscientiously entertain an honest and strong suspicion that the person is guilty of a crime.” People v. Adams, 175 Cal. App. 3d 855, 221 Cal.Rptr. 298, 301 (Cal. Ct. App. 1985) (citation and quotations omitted). The fact that an arrest that appears to be supported by probable cause at the time of the arrest is later found to have been made in error does not mean there was not a basis to carry out the arrest in the first place. Peng v. Hu, 335 F.3d 970, 976-78 (9th Cir. 2003) (finding probable cause to arrest based on one witness providing sufficiently detailed facts regarding the incident). Similarly, the facts that charges ultimately did not get filed or that the defendant was later acquitted of the charges do not necessarily mean that probable cause did not exist when the officer acted. See Michigan v. DeFillippo, 443 U.S. 31, 36 (1979); Freeman v. City of Santa Ana, 68 F.3d 1180, 1189 (9th Cir. 1995). A case that tries to Monday-morning-quarterback the judgment of a law enforcement officer in this regard is not going to get very far, where the nature of the plaintiff’s argument is simply that the facts could have been viewed differently.

However, when a reasonable officer should have followed obvious avenues for investigation, particularly around the identity of the person being arrested or the very question of whether a crime has actually occurred, probable cause to perform a warrantless arrest may be missing. See Hutchinson v. Grant, 796 F.2d 288 (9th Cir. 1986) (police officer who mistook arrestee for a burglary suspect with the same name was not entitled to summary judgment in connection with arrest where he took no steps to verify the arrestee's identity before arresting him); Merriman v. Walton, 856 F.2d 1333 (9th Cir. 1988); Fuller v. M.G. Jewelry, 950 F.2d 1437, 1444 (9th Cir. 1991); Arpin v. Santa Clara Valley Transp. Agency, 261 F.3d 912, 925 (9th Cir. 2001) (“In establishing probable cause, officers may not solely rely on the claim of a citizen witness that he was a victim of a crime, but must independently investigate the basis of the witness’ knowledge or interview other witnesses”). In other words, failure to get the objective facts right or failure to perform required investigation is more likely to be a basis for liability than merely making a subjective weighing of a body of evidence in a manner that later turns out to be have been incorrect.

What if officers rely on a warrant in making an arrest, but the warrant is obviously defective or is for some other person altogether? Where there are obvious physical differences between the person and arrested and the person described in the warrant, the fact that the warrant exists does not render the arrest legal. See, e.g., Gant v. Cty. of Los Angeles, 772 F.3d 608, 613 (9th Cir. 2014) (noting suspect was listed as 6'1" tall and weighing 200 lbs, while arrestee's driver's license indicated that he was 5'6" tall and weighed 180 lbs). Where there is a reasonable error about who the suspect is, however, the existence of the warrant may be fatal to the claim. Hill v. California, 401 U.S. 797, 802 (1971). A warrant can also be facially defective, such that a reasonable officer should realize it is defective, where it lacks particularity or where there are other obvious problems apparent on its face. See, e.g., United States v. Leon, 468 U.S. 897, 923 (1984). Notably, these reliance-on-a-warrant scenarios are ones in which qualified immunity is likely to shield law enforcement under federal law, but a more viable path may be found under state law.

While law enforcement officials have many immunities in the performance of their duties, California Government Code section 820.4 specifically excludes from immunity government actors’ “liability for false arrest or false imprisonment.” See Asgari v. City of Los Angeles, 15 Cal. 4th 744, 757 (1997) (“under California law, a police officer may be held liable for false arrest and false imprisonment, but not for malicious prosecution").

Damages in a civil false arrest/false imprisonment claim under California law are subject to the limitation spelled out in Asgari, 15 Cal. 4th at 748: namely, that no compensation can be recovered for time spent in custody after arraignment.

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California's Bane Act - An Overview

California’s Tom Bane Act, California Civil Code § 52.1, makes it illegal to interfere by threat, intimidation, or coercion, or attempt to interfere by threats, intimidation, or coercion, with the exercise or enjoyment by any individual secured by the Constitution or laws of California.

The essence of a Bane Act claim is that the defendant, by improper means, “tried to or did prevent the plaintiff from doing something he or she had the right to do under the law or to force the plaintiff to do something that he or she was not required to do under the law.” Austin B. v. Escondido Union Sch. Dist., 149 Cal. App. 4th 860, 883 (2007)

The most obvious applications of Bane Act claims occur when physical force or other forms of coercion are used to violate a person’s rights, and Bane Act claims are often brought as a California-law counterpart to a claim of excessive force under federal law. “Mere words” are typically not enough to be the basis for a claim, though if the words involve a threat of violence or arrest they can be sufficient. See, e.g., Cuviello v. City & Cty. of San Francisco, 940 F. Supp. 2d 1071, 1103 (N.D.Cal. 2013). Additionally, “retaliatory actions may be sufficient to state a Bane Act claim based upon coercion or intimidation.” N.M. v. Ramona Unified Sch. Dist., No. 24-cv-2306-BJC-MSB, 2026 U.S. Dist. LEXIS 46893 at * 18 (S.D.Cal. March 6, 2026) ; Bailey v. Shasta Union High Sch. Dist., No. 2:23-cv-01750-KJM-DMC, 2024 U.S. Dist. LEXIS 210247, at *7 (E.D. Cal. Nov. 18, 2024).

The Bane Act is interpreted as having a “specific intent” component that has been the subject of a great deal of debate. That intent component, however, does not require an intent to violate the law: “A reckless disregard for a person’s constitutional rights is evidence of a specific intent to deprive that person of those rights.”  Reese v. Cty.of Sacramento, 888 F.3d 1030, 1045 (9th Cir. 2018).  The intent component also does not “require a showing that a defendant knew he was acting unlawfully; reckless disregard of the ‘right at issue’ is all that is necessary.” Luttrell v. Hart, No. 5:19-CV-07300-EJD, 2020 U.S. Dist. LEXIS 173856, 2020 WL 5642613, at *5 (N.D. Cal. Sept. 22, 2020) (citation omitted).

In a custodial setting like a jail or prison, “deliberate indifference” — the same mental state that needs to be established to make out an Eighth or Fourteenth Amendment claim — will also satisfy the specific intent component of the Bane Act. Cornell v. City and County of San Francisco, 17 Cal.App.5th 766, 802, n. 31 (2017).​ As discussed elsewhere on this blog, the Eighth Amendment version of deliberate indifference requires a “subjective” showing of intent, whereas the Fourteenth Amendment version of deliberate indifference that applies in situations involving pretrial detainees is satisfied by a less demanding “objective” showing. This less-demanding “objective” form of deliberate indifference is sufficient to satisfy the intent component of the Bane Act. See Est. of Hernandez v. San Diego County, 24-cv-00032-DMS-DEB at * 25-26 (S.D.Cal. Sept. 30, 2024) (“the Court has determined that the Complaint alleges a claim under the objective deliberate indifference standard. [Citation.] Thus, the Complaint states a Bane Act claim against Defendants”).

An interesting aspect of Bane Act claims, compared to claims brought under 42 U.S.C. § 1983, is that the Bane Act statute contains no requirement of acting “under color of law.” See Jones v. Kmart Corp., 17 Cal. 4th 329, 333-334 (1998) (“there is no state action requirement per se” in the language of the Bane Act). In other words, the Bane Act can apply to the actions of private actors, not just folks in government.

Bane Act claims are also not subject to the regime of “qualified immunity” that can make federal civil rights litigation so vexing and unpredictable.

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School District Immunity Under Education Code section 44808 for Events Not Occurring at School

A California school district was immune under section 44808 of the California Education Code for liability arising from the suicide of a student who took her life at home during winter break, a California appellate court concluded in a decision published this week in Vallejo United School District v. Superior Court.

Armored Up: Statutory immunities can provide formidable protections for government actors in some situations. Photo by Jonathan Kemper on Unsplash‍. ‍

Section 44808 states, in relevant part, that districts and district employees don’t have a responsibility for the safety of students when the student is not on school property except during transportation to-or-from school, in school sponsored activities off site, or if they have “otherwise specifically assumed such responsibility or liability or has failed to exercise reasonable care under the circumstances.” As the court notes, there is some ambiguity as to whether that final section about “otherwise assuming responsibility” is a standalone carveout to the immunity or if it only applies in the transportation and outside-activity scenarios, and that ambiguity is underscored by the fairly broad way the language was interpreted by the California Supreme Court in Hoyem v. Manhattan Beach City School District (1972) 22 Cal.3d 508.

The plaintiffs here argued that the carve-out of that last section applied to their situation, but the appellate court concluded otherwise and in fact came up with a (IMHO) very broadly worded interpretation of what section 44808 means, which actually seems to negate (or perhaps just be in tension with) some plaintiff-favorable dicta in Hoyem. That dicta had said that section 44808 withdraws immunity “when the school district, inter alia, has failed to exercise reasonable care under the circumstances.” (Internal quotes omitted.) Vallejo United is having none of that, however, and explicitly holds: “a school district cannot be held liable for negligence that proximately causes off-campus harm when the student is no longer supposed to be under the district’s supervision.” That language will undoubtedly be quoted in many a future case, now that Vallejo United has been published.

The immunity that is at issue here is merely one of many, many immunities for government actors that are encoded in California law, which is one of the reasons civil rights litigation can be quite challenging: because these immunities are like landmines for the unwarry, potentially creating partial or even complete barriers to liability. And that’s before we even talk about the Eleventh Amendment, which is also a concern in federal litigation against California school districts.

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Records Retention Requirements (or the Lack Thereof) Under the California Public Records Act

The California Supreme Court held earlier this month in City of Gilroy v. Superior Court that the California Public Records Act does not impose a requirement on public agencies to retain records for three years after asserting an exemption to disclosure of the records. The court notes that this is a fairly straightforward conclusion from the text of the CPRA itself, which does not make any reference to a requirement to preserve records.

Your records are shreddy — I mean, ready. Photo by Mahen Rin on Unsplash‍. ‍

However, the court also notes that preservation requirements may exist on the basis of pending litigation, so the absence of explicit language in the CPRA itself is not necessarily the end of the analysis in terms of whether records can or can not be run through the digital shredder.

The unfortunate thing about decisions like this is that, whatever they mean as a purely legal matter, they also symbolically gesture in a particular direction, and the direction in this case is toward the idea that public agencies should go ahead and destroy records, or at least should not feel bound to preserve them under the CPRA. Alternatively, I suppose you could also view the decision as a flag to the California legislature that some amendments to the CPRA may be necessary. Either way the symbolism is not of the court itself standing up for public access to records, but there is only so much the court can do given the lack of any language on preservation in the actual statute.

At any rate, the takeaway from City of Gilroy, as a practical matter and for members of the public, is absolutely to get preservation letters submitted to agencies immediately whenever there is a prospect that evidence could be destroyed by the passage of time. The CPRA itself may not ensure that records are preserved, but agencies can nevertheless be put on notice that the records are the subject of potential litigation and thus need to be retained.

Related Post: California Public Records Act Statute Numbering Cross-Reference Update.

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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

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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.

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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.

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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 impose 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 stop to consider the legality of their own actions well after the fact.

Related Post: Ninth Circuit Sees First Amendment Issue Stemming from First Grader’s Expression Punished By School.

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