Police Immunity Limited by Supreme Court

Government Code section 821.6, one of various immunities codified in the Government Claims Act, immunizes public employees from liability for “instituting or prosecuting any judicial or administrative proceeding” within the scope of their employment, “even if” the employees act “maliciously and without probable cause.”  

For decades, California Courts of Appeal have broadly applied the immunity to prevent actions against public employees, including police officers, during the course of investigations.

The Supreme Court of California recently considered Government Code section 821.6 and the broad application by the appellate courts in a negligent infliction of emotional distress context, rejecting such decisions— i.e., the expansion of immunities available under section 821.6.  On June 22, 2023, the Supreme Court issued its opinion in Leon v. County of Riverside narrowing the immunity considerably, holding strictly that if a “claim does not concern alleged harms from the institution or prosecution of judicial or administrative proceedings, section 821.6 does not apply,”   and thereby overturning prior decisions to the contrary.

In Leon,  the plaintiff’s husband was shot near his home when Riverside County Sheriff deputies arrived on the scene.  After hearing additional shots, the officers dragged plaintiff’s husband behind a vehicle but were unable to revive him.  The movement caused the husband’s pants to slide down to his ankles, exposing his naked body for approximately eight hours throughout the officers’ search for the shooter and investigation of the shooting.  The County asserted immunity under section 821.6, based on “all conduct related to the investigation and filing of charges [as a precursor to a criminal prosecution].”  The trial court agreed and entered judgment for the County, which was affirmed by the Court of Appeal.  The appellate court reasoned that prior caselaw  “ha[s] consistently construed section 821.6 as immunizing a public employee from liability for any injury-causing act or omission in the course of the institution and prosecution of any judicial or administrative proceeding, including an investigation that may precede the institution of any such proceeding.”  And, because the deputies’ action of not covering the decedent’s body “occurred during the course of the deputies’ performance of their official duties [and their] investigation of the shooting,” the lower courts opined that immunity applies.

The California Supreme Court disagreed, rejecting the trial court’s and Court of Appeal’s holdings.  After considering the text of the statute, the legislative history underpinning section 821.6, and policy considerations, the Court repeated its historical and narrow reading of section 821.6 clarifying: “If a law enforcement officer has initiated an official proceeding, the officer will enjoy immunity for that conduct under section 821.6, regardless of whether the officer's conduct may include certain acts described as investigatory.  Where, however, the plaintiff's claim of injury does not stem from the initiation or prosecution of proceedings, section 821.6 immunity does not apply.”  The Supreme Court refused to apply an “absolute” immunity to police investigations in light of the clear language and history of Government Code section 821.6 pertaining to malicious prosecution only.

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