Transcript What You Should Know About Public Employee Liability and Immunity Infopeople Webcast Series 2: Third Thursday Instructor: Thursday, April 17, 2002 12:00 noon to 1:00 p.m Mary Minow,

What You Should Know About
Public Employee Liability
and Immunity
Infopeople Webcast Series 2:
Third Thursday
Instructor:
Thursday, April 17, 2002
12:00 noon to 1:00 p.m
Mary Minow, J.D., A.M.L.S.
LibraryLaw.com
[email protected]
Protection for “All but the
Plainly Incompetent”
Qualified immunity,
say the courts,
protects
“all but the plainly
incompetent or
those who
knowingly violate
the law.”
Brainless
Malley v. Briggs, 475 U.S. 335, 341 (1986), cited in Bernstein v. Lopez,
.
No. 02-55119 (9th Cir. March 04, 2003)
What You Should Know About
Public Employee Liability
and Immunity
Infopeople Webcast Series 2:
Third Thursday
Instructor:
Thursday, April 17, 2002
12:00 noon to 1:00 p.m
Mary Minow, J.D., A.M.L.S.
LibraryLaw.com
[email protected]
Technical Housekeeping
Handouts and archive
infopeople.org/training/webcasts
Go to Program Guide section
Content
Type comments/questions in chat
window at bottom of screen
Technical questions
Click “HELP” button in black bar in
middle of screen
[email protected]
(212) 651-8060
Evaluation
Pushed to you at end of program
.
http://www.infopeople.org/training/webcasts/
Public Employee Liability
and Immunity Outline
Policy and Legal Framework
Who’s the Defendant?
Who Pays Legal Costs?
Immunities
State Torts
Constitutional Violations
Misc.
.
Legal Disclaimer
• Legal information
• Not legal advice!
.
Policy and Legal Framework
Sovereign Immunity
Dates back to England -“The King can do no wrong”
The King is
sovereign. He has
sovereign
immunity.
We got rid of the
King but we kept
the immunity.
.
Why is this man smiling?
Policy Concerns
Separation of powers (courts
can’t interfere with legislatures)
Keep money in
taxpayers’ pockets
Stop good people from running
away from government jobs
.
California: Three Steps to Determine
Public Entity Liability
Duty?
Statute
Allowing
Liability?
Immunity?
.
Law: General Rule No Duty
As a general rule, one has no duty to
come to the aid of another. A person who
has not created a peril is not liable merely
for failure to take affirmative action to
assist another unless there is some
relationship between them which gives
rise to a duty to act.
Exceptions: Snake pit (state created danger)
Special Relationship
.
Exception: Snake Pit
“Dangerous condition" means
a condition of property that
creates a substantial (as
distinguished from a minor,
trivial or insignificant) risk of
injury when such property or
adjacent property is used
with due care in a manner in
which it is reasonably
foreseeable that it will be
used.
Calif. Govt. Code Sect. 830 et seq. .
Library’s Gate
Did Not Create Danger
Disabled patron claim:
Guard directed her to
handicap gate
Two couples rushed
through and knocked her
down
Court:
Library Gate Not Dangerous
No Duty
Polese v. Los Angeles County Law Library. et al.,
2002 Cal. App. LEXIS 437 (2002).
Library’s Open Internet Access
Not a “Snake Pit”
Not enough that harm
might be foreseeable
State must
“affirmatively” place an
individual in danger
Kathleen R. v. Livermore,
87 Cal. App. 4th 684
. (2001)
Exception: Special
Relationship
Even if minors are expected to go to
the library to complete public
school assignments, the library
does not exercise 'pervasive
control' over minors
No duty to have filtered Internet
)
Kathleen R. v. Livermore,
87 Cal. App. 4th 684
. (2001)
Exception: Special
Relationship
Even if minors are expected to go to
the library to complete public
school assignments, the library
does not exercise 'pervasive
control' over minors
No duty to have filtered Internet
)
Kathleen R. v. Livermore,
87 Cal. App. 4th 684
. (2001)
Exception: Special Relationship
Exercising control over patrons
Examples
family relationships
librarian drives child home
… can create a duty
Whose duty?
Look at scope of employment
Library policy to drive child home
… library has taken on duty
)
likely analysis
(no cases yet)
Librarian in individual capacity
drives child home
.
… then personal responsibility
Statute Allowing Liability
Duty?
Public entities are not liable for injuries whether arising
out of an act or omission of a public entity or a public
Employee unless otherwise provided in the statute
California Tort Claims Act
Calif. Govt. Code Sect. 810-999.6
Statute
Allowing
Liability?
Immunity?
.
http://www.leginfo.ca.gov/calaw.html
Law: Public Entity and Employee Liability
California Tort Claims Act - Calif. Govt. Code Sect. 810-999.6
.
http://www.leginfo.ca.gov/calaw.html
Brief Time for Claims:
Statute of Limitations
• Claim for death, injury to person
or personal property must be
made within six months
• Other claims must be made within
one year
Exceptions, illustrations
Calif. Govt. Code Sect. 911.2 et seq.
.
But California Statute
Does Allow Liability…
A public entity is liable for injury
caused by an act or omission of an
employee within the scope of his
employment if the act or omission
would have given rise to a cause of
action against that employee…
Calif. Govt. Code Sect. 815.2(a)
.
… And A Lot of Immunity
Yet not liable for injuries where the
employee is immune from liability.
Not liable when injury is based on
discretion vested in the employee,
whether or not that discretion is abused.
discretion – basic policymaking
not ministerial duties
Calif. Govt. Code Sect. 815.2(a);Calif. Govt. Sect. .820.2;
Johnson v. State of California, 69 Cal.2d 782 (1968)
Identifying the Defendant
Public Entities
Suits should be filed against
parent entities (cities,
counties) not subsidiaries
What’s a parent entity?
independent governing body
City
Library
statutory power to own
property, levy taxes, incur
indebtedness
.
Calif. Govt. Code Sect. 811.2 defines public entity
and Sect. 5301(a)-(b) must file
Why Sue Individual
Public Employees?
Go after everyone
Get punitive damages (not
recoverable against public
entities)
Sue for claims not included
in statutes
If employee is sued in
“official capacity,” entity is
on the hook for vicarious
liability
.
Calif. Govt. Code Sect. 811.4 defines public employee
See Sect. 818; Sect. 820(a) on punitives
Nonemployees Do Not Confer
Vicarious Liability in Calif.
• Independent contractors
does library control the manner and
means of work?
• Volunteers (some)
but … is volunteer required
to work (community service)?
trained by library?
Calif. Govt. Code Sect. 810.2 excludes independent contractors
.
Munoz v. Palmdale, 75 Cal. App.4th 369 (1999)(volunteer serving
coffee was not a city employee for purposes of vicarious liability)
Vicarious Liability: To Hook Employer,
Lawsuit Must Show Three Conditions
(1) the individual sued is
an employee
(2) the conduct is within
scope of employment
(3) the employee’s act or
omission caused the
injury
Vicarious liability
can get to entity for the
deep pockets
.
Are Supervisors Liable for
Torts of an Employee?
Unless otherwise provided by
statute, a public employee is not
liable for injury caused by another
person’s act or omission.
Calif. Govt. Code Sect. 820.8
.
Tougher Standard to Hook Municipality for
Employee Acts of Discrimination,
Constitutional Injuries
Municipalities not on
the hook for vicarious
liability for
unconstitutional acts
of its employees
Unless the acts spring
from an impermissible
policy or practice
.
Monell v. Department of Social Services of New York, 436 U.S. 658 (1978)
ADA – Individuals Can Only Be
Sued in Official Capacities
Individual defendants may not be
sued in their individual capacities
under Title II of the ADA
They may be sued in their official
capacities because suing an
individual in his official capacity is
treated the same as suing the entity
itself
Campos v. San Francisco State Univ., 1999 WL 1201809 (N.D. Cal. 1999)
.
(dismissing individual capacity Title II claims);
see also Kentucky v. Graham, 473 U.S. 159 (1985)
Who Pays Employees’
Legal Costs?
• Public entities pay for defense, judgments, and
settlements (not punitives) arising from an act
or omission occurring within the scope of
employment
– with few exceptions
• Also pay for also federal civil rights claims
(42 U.S.C. Sect. 1983)
• Includes costs and expenses as necessarily
incurred
• Employee must request entity (in advance) to
pay for defense
.
Calif. Govt. Code Sect. 825(a)
Entity May Choose to Pay
Employee’s Punitive Damages
– Judgment based on act or omission of
the employee while acting in the
course and scope of employment
– Employee acted in good faith and in
the apparent best interest of the
entity
– Payment would be in best intrest of
the public entity
.
Runyon v. Superior Court (1986) 187 CA3d 878;
Govt Code Sect. 825(e)
Defense May Be Provided
Three Ways
• Supplying
entity’s attorney
• Hiring another
attorney
• Purchasing
insurance
.
Calif. Govt. Code Sect. 996
Entity Pays Regardless
of Outcome
Unlike private employment, entity
may not generally require
reimbursement by employee who
loses case
.
Calif. Govt. Code 825.4 and 825.6
Exceptions to Entity’s Duty to
Provide Defense
• Outside scope of employment
– May reserve right to wait until scope of
employment is established before
paying judgment or settlement
• Conflicts of interest
• When entity itself brings action
• Fraud, corruption or malice
Calif. Govt. Code Sect. 825(a), 995.2, 995.6
.
School District Did Not Have to Pay Defense
Costs for Wisconsin School Librarian
School District agreed to pay legal fees
under a “reservation of rights”
Insurance company refused to pay
“Intentional acts exclusion”
Librarian lost suit (sexual contact with a
minor)… librarian said exclusion should not
apply because he did not intend to injure
Court: Intent to injure may be inferred.
School district, insurance did not have to
pay librarian’s legal fees.
C.L. by Guerin v. School.Dist.,
221 Wis. 2d 692, (Wis. Ct. App. 1998)
Immunities and Limits
California Tort Claims Act
Duty?
Statute
Allowing
Liability?
Immunity?
Allows some lawsuits
but offers some immunities
when claims are for money
Immunities don’t cover
Nonmonetary claims
Federal civil rights violations
First Amendment suits
.
California
Discretionary Immunity
Current law generally provides that a
public employee is not liable for an
injury resulting from an act or omission
where the act or omission was the
result of an exercise of discretion
vested in the employee, whether or not
that discretion is abused.
Discretion – basic policymaking
not ministerial duties
Calif. Govt. Sect. 820.2;
.
Johnson v. State of California, 69 Cal.2d 782 (1968)
Federal “Qualified Immunity”
Protects Employees
Also protects local public officials as long as conduct does not
violate clearly established constitutional or statutory rights.
“Reasonably competent” officials should know if they’re
breaking the law.
Two Part Test
(1) Was the law governing the official's
conduct clearly established?
(2) Under that law, could a reasonable
officer have believed the conduct was lawful?
Harlow v. Fitzgerald, 457 US 800 (1982);
.
Anderson v. Creighton, 483 U.S. 635 (1987)
Private Outsourcing …
Immunities Vanish
The Supreme Court:
qualified immunity could
not be extended to
private correctional
officers because they
were not "state actors"
despite carrying out a
state action.
Richardson v. McKnight, 117 S. Ct. 2100 (1997)
.
YES Qualified Immunity for
Oakland Library Staff
CLAIMS: DUE PROCESS, EQUAL PROTECTION
Library staff dismissed
1)no constitutional injury
2)
Patron sued over
two-hour suspension
the rights claimed --unlawful
delegation of authority to private
security guards; right to a hearing prior
to his expulsion--were not clearly
established and
3) defendants could have reasonably
believed their conduct to have been
lawful
Grigsby v. City of Oakland, 2002 U.S. Dist. LEXIS 2587
.
(N.D. Cal. Feb. 11, 2002)
YES Qualified Immunity for
Library Trustees Columbus (OH)
Barefoot patron claimed
library trustees violated
First, Ninth and Fourteenth
Amendments
Patron failed to claim
specific facts showing
"a clearly established"
right has been violated.
.
Neinast v. Bd. of Trustees, Columbus Metro. Library, 2002 U.S.
Dist. LEXIS 5105 (S.D. Ohio Mar. 26, 2002)
YES Qualified Immunity for
Trustees, Staff, D.C. Library
Homeless patron claimed library
and trustees, staff violated First,
Fifth Amendment
Court: Cannot conclude a
reasonable person would have
known that the regulation
violated a clearly established
constitutional right.
Library not suable as separate
entity (D.C. law)
Armstrong v. District of Columbia Public Library et al. Civil
Action No. 94-0392(EGS) (Dist. Ct. 2001)
.
NO Qualified Immunity for
Santa Ana Library Director
Because Lambert's
remarks were so clearly
protected, Richard and
Ream were not entitled to
qualified immunity. When
the law is clearly
established, public officials
are immune only when
they objectively could
have believed that their
conduct was lawful.
$30,000
$30,000
No immunity
Lambert v. City of Santa Ana, 59 F.3d 134 (9th Cir. 1995),
.
cert. denied 516 U.S. 1028 (1995).
NO Qualified Immunity for
Mainstream Loudoun Library Trustees
Citizens First Amendment suit
against library trustees when they
installed filters
Court:
YES ABSOUTE IMMUNITY for
decision… policy was “legislative
in nature”
NO QUALIFIED IMMUNITY
for management and control –
Not available for injunctive relief
YES OFFIICAL CAPACITY ONLY
dropped individual capacity claim
Mainstream Loudoun v. Board of Trustees of the Loudoun
County Library, 2 F. Supp. 2d 783, (E.D. Va. 1998)
.
Miscellaneous
•Communications Decency
Act: Sect 230
•Copyright
•Patriot Act
.
Section 230 Communications
Decency Act Immunity
Mainstream Loudoun
(sued for using filters)
Court: Sect. 230 does not
immunize against declaratory
and injunctive relief
Kathleen R. v. Livermore
(sued for not using filters)
Court: Preempts state claims
42 U.S.C. Sect. 230(c)(2)(Mainstream)
42 U.S.C. Sect. 230(c)(1) (Loudoun)
.
Copyright
• Library has reasonable belief of
“fair use” – Sect. 504 brings
damages down to $0
• Pirating Patrons - Sect. 512 offers
libraries safe harbors if they
register (see handout)
17 U.S.C. Sect. 504(c); 17 U.S.C. Sect. 512
.
Patriot Act
Section 215(e)
A person who, in good faith,
produces tangible things under
an order pursuant to this section
shall not be liable to any other
person for such production.
Such production shall not be
deemed to constitute a waiver of
any privilege in any other
proceeding or context.
.
Your Liability
• If you stay within the scope of
employment, your public entity
should pay for your defense and
costs
• If you obstruct justice, you may
face jail time
.
Leave You With Conundrum:
New Arcata City Ordinance
• As of May 2, 2003, top nine
managers face $57 fine if
they cooperate with certain
provisions of the Patriot Act
• The library is part of county
govt … ordinance doesn’t
apply
http://www.sfgate.com/cgi-bin/article.cgi?f= .
/c/a/2003/04/13/BA283270.DTL
Filter Update
POSTPONED
Infopeople Webcast Series 2:
Third Thursday
Instructor:
Thursday, May 15, 2003
12:00 noon to 1:00 p.m
Mary Minow, J.D., A.M.L.S.
LibraryLaw.com
[email protected]