The Ninth Circuit today asked for the Supreme Court’s help in deciding an issue under California’s Tom Bane Civil Rights Act. In Johnson v. Adgar, the federal appeals panel said “[t]here is no controlling California precedent” about the issue, which is “likely to recur and affect state civil rights cases brought under federal pendent jurisdiction throughout California’s four federal districts.”
The referred questions are:
What is the standard for determining whether a particular constitutional right is “clearly delineated and plainly applicable” under the Tom Bane Civil Rights Act, Cal. Civ. Code § 52.1? What is the difference between this standard and the standard used to determine if the law is “clearly established” for purposes of federal qualified immunity under 42 U.S.C. § 1983, if any?
The case arises from the defendant San Jose police officer’s actions at a 2020 demonstration protesting the murder of George Floyd. He injured the plaintiff with a foam baton fired from a 40mm projectile impact weapon. A jury awarded $1,353,313, finding the defendant had fired indiscriminately into the crowd.
In a concurrently filed 2-1 opinion, the Ninth Circuit panel reversed in part the denial of the defendant’s motion for judgment as a matter of law. Although concluding substantial evidence supported the jury’s finding that the defendant’s use of force was unreasonable and violated the plaintiff’s Fourth Amendment rights, the panel held the defendant was protected by qualified immunity on the excessive force claim under 42 U.S.C. section 1983.
The Ninth Circuit did not address the plaintiff’s state Bane Act claim. It said that qualified immunity on the federal claim was appropriate because the unlawfulness of the defendant’s conduct “was not clearly established at the time.” But it didn’t know whether that holding also negates the plaintiff’s state law claim under the Bane Act, which the court concluded requires violation of a right that was “clearly delineated and plainly applicable under the circumstances of the case.” (Quoting Cornell v. City & County of San Francisco (2017) 17 Cal.App.5th 766, 803.) “[I]f the right at issue meets this standard, [the defendant] is liable under the Bane Act,” the panel wrote, “if it does not, he is not.”
Video of the July 9 Ninth Circuit oral argument is here.
The Supreme Court should let the Ninth Circuit know by the end of the year — give or take — whether it will answer the questions. The Supreme Court historically says “yes” in most cases, but it went through a short picky stage — denying two of three requests over an eight-month stretch — a few years back. (See here and here.) In the long run, however, the court has been extremely accommodating, having granted 24 of the last 27 requests, dating back to July 2018. Before the most recent two rejections, the lone denial in the past eight years had been in October 2019. There is one other pending request.
Related:
Another Ninth Circuit case that didn’t quite make it to the California Supreme Court
Asked and answered: California Supreme Court responses to Ninth Circuit questions
The constitutionality of the Supreme Court answering the Ninth Circuit’s legal questions
Ninth Circuit dissenter wanted to send insurance law question to the Supreme Court
Ask not what the Supreme Court can do for the Ninth Circuit
Justice Kruger and Judge Owens talk about the Supreme Court answering Ninth Circuit questions
The shadow docket . . . of California’s Supreme Court, part 2
