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California Supreme Court:
§821.6 Immunity Does Not Extend to Police Investigations
By a MetNews Staff Writer
A Government Code section that creates immunity based on wrongful prosecutions does not extend to conduct in the course of criminal investigations, the California Supreme Court held yesterday in a unanimous opinion.
Sec. 821.6 provides:
“A public employee is not liable for injury caused by his instituting or prosecuting any judicial or administrative proceeding within the scope of his employment, even if he acts maliciously and without probable cause.”
Justice Leondra Kruger wrote:
“While other provisions of the Government Claims Act may confer immunity for certain investigatory actions, section 821.6 does not broadly immunize police officers or other public employees for any and all harmful actions they may take in the course of investigating crime.”
In particular, the high court held that the County of Riverside cannot rely upon §821.6 in defending against liability in an action in which a widow, Dora Leon, is suing for negligent infliction of emotional distress based on sheriff’s deputies left the uncovered body of her husband on the driveway of their home for eight hours after he was fatally shot by a neighbor.
Appeals Court’s Opinion
The opinion reverses a contrary decision by Div. Two of the Fourth District Court of Appeal. In his May 27, 2021 opinion, Justice Richard T. Fields said:
“The county is immune from liability to Dora for any negligence or other tortious conduct on the part of the deputies in failing to promptly cover Jose’s body, or promptly remove Jose’s body from the crime scene. Undisputed evidence shows that the deputies’ negligence, if any, occurred during the course of the deputies’ official investigation of the shooting. For this reason, the deputies are immune from liability to Dora (§ 821.6), and, the county, as the deputies’ public entity employer, is immune from vicarious liability for the deputies’ negligence, if any. (Gov. Code, §§ 815.2, subd. (b), 821.6.)”
Justice Michael J. Raphael observed in a concurring opinion that “any correction to the Court of Appeal’s decades-old, expansive application of section 821.6 will have to come from our Supreme Court, rather than from us.”
Such a “correction” came yesterday. Kruger declared that the conclusion the Court of Appeal reached “is inconsistent with section 821.6’s text and history, as well as our precedent construing the same.”
‘Correction’ Provided
Kruger corrected the Supreme Court’s own mischaracterization of the immunity in past opinions as well as the courts of appeal’s misapprehension as to its scope. Noting that the statute covers negligent prosecutions, in the absence of malice, she said:
“For this reason, although our prior decisions have loosely described section 821.6 as conferring immunity against malicious prosecution claims…, section 821.6 is more aptly characterized as providing immunity against liability for claims of injury based on tortious or wrongful prosecution. The immunity is narrow in the sense that it applies only if the conduct that allegedly caused the plaintiffs injuries was the institution or prosecution of an official proceeding. But this immunity is broad in the sense that it applies to every such tort claim, whether formally labeled as a claim for malicious prosecution or not. And where it applies, it is absolute….”
Discrete Functions
She spelled out:
“To be sure, the facts surrounding the conduct of an investigation and the initiation or conduct of prosecution may sometimes overlap. But the potential for factual overlap between investigations and prosecutions does not justify treating them as one and the same, as the County asks us to do. 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 plaintiffs claim of injury does not stem from the initiation or prosecution of proceedings, section 821.6 immunity does not apply.”
The plaintiff, Kruger noted, “is not suing the County and its officers for causing an unjust prosecution, but for the officers’ lack of care in handling her late husband’s body.”
The opinion disapproves contrary conclusions reached in 12 Court of Appeal opinions.
On remand, Kruger said, the county may raise other immunity statutes.
The case is Leon v. County of Riverside, 2023 S.O.S. 2079.
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