CPOA Case Summaries – July 2016

CONSTITUTIONAL LAW

  1. Defendant unambiguously invoked his right to remain silent during police interview, which meant that all subsequent statements were inadmissible against him.

Jones v. Harrington, 2016 U.S. App. LEXIS 13491 (9th Cir. July 22, 2016)

Facts: Following a gang-related shooting in August 2003 that left one person dead and two injured, Los Angeles Police Department (LAPD) detectives took Kevin Jones into the station because they suspected Jones was involved in the shooting. The detectives read Jones his Miranda v. Arizona[1] rights and then began interviewing him a few hours later. At the beginning of the interview, Jones indicated that he did not know anything about the shooting, and had driven straight home after work on the day in question. Over the course of the interview, Jones’s story changed several times.

The detectives lied to Jones and told him they had incriminating evidence against him, even though they did not, including witness identification of his car as the one used in the shooting and surveillance from a gas station near the shooting. At one point, one of the detectives told Jones that he drove the car, which was reflected in the video, and that he was going to note that Jones did not know the shooting was going to happen. In response, Jones stated, “I don’t want to talk no more, man.” The detective responded, “I understand that, but the bottom line is ” to which Jones responded that the detective did not want to hear what he was telling him. The detectives continued questioning Jones, and eventually he made incriminating statements, including admitting to driving the car during the shooting.

Jones was arrested a few days later and interviewed again. At trial, the case against Jones was based on the statements made during the police interrogations, since there were no witnesses identifying Jones as the shooter and there was no physical evidence connecting him to the shooting. The jury convicted Jones of first degree murder, two counts of attempted murder, two counts of shooting from an occupied motor vehicle, and assault with a firearm and the trial court sentenced him to five years plus 75 years to life.

Jones appealed to the California Court of Appeal, which affirmed the conviction, reasoning that Jones’s statement that he did not “want to talk no more” was ambiguous given his subsequent statements. The California Supreme Court denied review. Jones then filed a federal habeas petition. The magistrate judge recommended denial of Jones’s petition, concluding that Jones’s request was ambiguous given his subsequent statements and because Jones did not ask to remain silent after the initial invocation of his right to remain silent. Jones appealed to the Ninth Circuit U.S. Court of Appeal.

Held: The California Court of Appeal’s determination that Jones’s statement that he “don’t want to talk no more” was made ambiguous by his subsequent statements was contrary to and an unreasonable application of clearly established Supreme Court law. The officers violated Miranda by continuing to interrogate Jones after he had invoked his right to remain silent, and therefore the government could not use anything Jones said after his invocation of his right to silence against him.

In reaching its decision, the Ninth Circuit looked at relevant precedent, including Miranda and Berghuis v. Thompkins.[2] Noting that it would apply the Thompkins command that the same standards for finding ambiguity in the right to counsel should also apply in the context of finding ambiguity in the right to remain silent, the Court found that no reasonable jurist could find that Jones’s invocation was ambiguous. The Court noted that his request to remain silent was unambiguous on its face and that nothing he said or did leading up to the invocation made it ambiguous.

The only statements that could cast ambiguity were those he made after he had invoked his right to silence. However, the Court noted it was clearly established that California courts could not look to such statements post-invocation to “cast retrospective doubt on the clarity of [Jones’s] initial request itself.” Thus, the Court stated, once he invoked his right to silence, the officers violated Miranda by continuing to question him, and even one question was one question too many. The use of Jones’s statements made after he invoked his right to silence against him at trial violated his constitutional rights.

 

  1. Search of engine air filter compartment during inventory search did not exceed Fourth Amendment because search was conducted consistent with police department policy.

United States v. Torres, 2016 U.S. App. LEXIS 12941 (9th Cir. July 14, 2016)

Facts: In April 2012, Las Vegas Metropolitan Police Department (LVMPD) officers responded to a call regarding a domestic battery occurring in a moving vehicle in Las Vegas. The caller described the incident and stated that the vehicle had pulled into a private apartment complex. LVMPD officer Jason Evans arrived on the scene and observed a vehicle matching the caller’s description stopped in near a no-parking-or-stopping zone. Officer Evans approached the vehicle and smelled alcohol on the breath of the driver, Jimmy Torres. Evans decided to investigate for a potential driving under the influence (DUI) offense and asked Torres to exit the vehicle. After Evans administered two field sobriety tests, which Torres failed, Evans placed Torres under arrest for DUI and placed him in the back of his patrol car.

Evans conducted a records check on Torres, which revealed Torres was a convicted felon. Evans and another officer that arrived on scene determined Cara Young, the passenger who was in the vehicle with Torres, did not have a valid license, the vehicle registration had lapsed, and that neither Torres nor Young lived at the apartment complex. Given the circumstances, the officers decided to impound the car.

Pursuant to LVMPD policy, the officers performed an inventory search of the vehicle and prepared a departmental vehicle impound report, which contained a list of 51 features to check, including the engine, battery, radiator, registration, and radio, among other things. During the search, the officers unlatched the lid to the engine’s air filter compartment, which was standard practice within the LVMPD, and discovered a semi-automatic pistol. The officers stopped the inventory search, called the LVMPD firearm detail, and the detail obtained a warrant to seize the gun.

Torres was charged with being a felon in possession of a firearm in violation of federal law. He filed a motion to suppress the handgun, arguing that it was the product of an unconstitutional search and seizure. The court denied the motion. Torres entered a guilty plea, and later appealed the denial of his motion to suppress. On appeal, he argued the impounding of his vehicle and the search of the air filter compartment exceeded the bounds of LVMPD policy and the Fourth Amendment.

Held: Both the decision to impound the vehicle and the search of the engine’s air filter compartment were permissible under the Fourth Amendment. In reaching its conclusion on the officers’ decision to impound the vehicle, the Ninth Circuit looked at the community caretaking doctrine, which permits police to impound and search a vehicle, without a warrant, as long as they do so in conformance with the local police department’s standardized procedures and in furtherance of a community caretaking purpose, such as promoting public safety or the efficient flow of traffic, as well as LVMPD policies relating to impoundment of vehicles.

The Court found that the LVMPD policies were sufficiently standardized to satisfy the requirements of the Fourth Amendment, and that the policies set forth limited circumstances in which a vehicle can be towed and outline the procedures to be followed prior to impoundment that comply with the police’s role as “caretakers” of the streets. Given the circumstances, including the officers’ uncertainty about the car’s owner, the fact that Young did not have a valid driver’s license, and the fact that the car was in a no-parking-or-stopping zone, which could impede emergency services and affect the efficient flow of traffic in and out of the complex, the impounding was consistent with LVMPD policies and permissible under the Fourth Amendment.

With respect to the inventory search, the Court reviewed relevant case law and LVMPD policy, which it noted contemplated that inventory searches of impounded vehicles would encompass all closed spaces and left almost no discretion in what areas of a vehicle must be searched. It noted the officers’ search of the air filter compartment was at least partially motivated by safety concerns, and LVMPD officers testified that they typically checked the air filter compartment because contraband and weapons were often found hidden in there.

Based on this, the Court found that it was reasonable for LVMPD to have an inventory search protocol that included areas where weapons could be stored in a manner that they could be accessible by a vehicle owner during impounding or by others who could have access to the vehicle after impounding. Thus, because the officers acted within the bounds of LVMPD in unlatching the lid to the air filter compartment, the search did not violate the Fourth Amendment.

 

INDEMNIFICATION OF PUBLIC EMPLOYEES

By implication, County reserved the right under Government Code section 825.2 not to indemnify deputies for acts within the scope and course of their employment that were taken with actual malice.

Chang v. County of Los Angeles, 1 Cal. App. 5th 25 (2d Dist. 2016)

Facts: In November 2007, three Los Angeles County Sheriff’s Deputies, David Chang, Anthony Pimental, and Kris Cordova, assaulted inmate Alejandro Franco. Franco filed a lawsuit for battery and civil rights violations under 42 U.S.C. § 1983. Each of the deputies signed agreements with Los Angeles County (County) setting forth the terms and conditions under which the County would defend them.

The first paragraph of each agreement set forth circumstances under which the County might withdraw its representation, including if the County determined the deputy did not act within the scope of his employment under section 995.2(a)(1) of the Government Code,[3] or he acted or failed to act because of fraud, corruption or actual malice under section 995.2(a)(2) of the Government Code.[4]

The second paragraph of each agreement stated the circumstances under which the County might not indemnify the deputy, stating, “In defending you, the County reserves its right not to pay any judgment, compromise or settlement on your behalf until it is established that the injury arose out of an act or omission occurring within the scope of your employment. … The County will also not pay any party of a claim or judgment that is for punitive or exemplary damages. (Section 825(a).)”

The third paragraph set forth circumstances under which the County might seek indemnification from the deputy, noting that the County could recover the amount of such payment from the deputy “…unless you establish that the act or omission upon which the claim or judgment is based occurred within the scope of your employment … and the County fails to establish that you acted or failed to act because of actual fraud, corruption or actual malice, or that you willfully failed or refused to reasonably cooperate in good faith in the defense conducted by the public entity. (Section 825.6.)”

In September 2010, following a jury trial, the jury found the deputies violated Franco’s federal civil rights, causing injury or harm to him, that each of the deputies acted with malice, oppression or reckless disregard in violating Franco’s civil rights, that each deputy committed battery on Franco while acting within the scope of their employment, causing injury or harm to Franco, and that the deputies acted with malice, oppression or fraud in committing the battery. The jury awarded compensatory damages of $85,000 and punitive damages of $50,000 against each deputy. With costs and attorneys’ fees, the total judgment, excluding punitive damages, was $451,086.47.

The deputies made a request for indemnification to the County Board of Supervisors, which was denied. In 2011, the deputies filed a claim for damages with the County. In February 2012, the deputies filed a complaint against several defendants, including the County, the Board of Supervisors, and the Los Angeles Office of the County Counsel, seeking to compel payment of the judgment from the Franco case. In June 2013, the deputies filed an amended complaint for indemnification of the compensatory damages award based on sections 814[5] and 825[6] of the Government Code.

Both parties filed for summary judgment, or in the alternative, summary adjudication. In December 2014, the trial court granted the deputies’ motion for summary judgment on the issue of indemnification, concluding the County was required to indemnify the deputies, excluding punitive damages, pursuant to section 825(a) of the Government Code and the reservation of rights.

The County appealed. On appeal, the deputies argued they were entitled to indemnification from the County under section 825 of the Government Code. The County argued that section 825.2 applied in this case because the County provided the defense under a reservation of rights.

Held: Government Code section 825.2[7] applies when a public entity employer provides a defense under a reservation of rights that includes reservation of the right not to indemnify for acts committed with actual fraud, corruption, or malice. A reservation of the right to indemnity from an employee for acts committed with actual fraud, corruption or actual malice is necessarily a reservation of the right not to indemnify an employee for such acts.

In reaching its decision, the Second District explained that a public entity’s duty to defend is set forth in section 995 through 996.6 of the Government Code, and a public entity’s duty to indemnify is set forth in sections 825 through 825.6 of the Government Code. Looking at section 825(a), the Court explained that, where a public entity conducts a defense pursuant to an agreement reserving the right not to pay the judgment until it is established that the injury occurred from an act or omission within the scope of employment, the public entity is required to pay such judgment only if it is established that the injury occurred from an act or omission within the scope of employment.

Applying this rule to the facts, the Court noted that, based on section 825 alone, the County would be required to pay the non-punitive damages awarded against the deputies because it conducted the defense, reserved the right not to pay the judgment until it was established that the acts occurred within the scope of employment, and the jury found the acts causing Franco’s injuries occurred within the deputies’ scope of employment.

However, the County argued that section 825.2 applies when an employee seeks indemnification and the public entity conducted the employee’s defense under a reservation of rights. Looking at section 825.2’s reference to when an employee pays a judgment and seeks to recover such payments, the Court found that the terms “pay” and “recover” must be interpreted broadly to include situations where a judgment is entered against an employee in order to harmonize the provisions of sections 825 and 825.2.

Reviewing the language of section 825.2 and noting that is not clear about which rights a public entity must reserve to trigger the statute’s protections, the Court found that the “most sensible” interpretation of section 825.2 is that an agreement between a public entity and an employee or former employee must reserve the right not to pay a judgment arising from an act or omission within the scope of employment because of actual fraud, corruption or actual malice in order for the public entity to rely on the protection of that right under section 825.2.

Here, the agreement between the County and the deputies included a reservation of the right to indemnity from the deputies for acts or omissions taken because of actual malice, corruption or actual fraud, as authorized by section 825.6. As such, the Court concluded that, by necessary implication, the County reserved the right not to indemnify the deputies for acts within the deputies’ scope of employment that were taken with actual malice. Since the County reserved that right, it was able to invoke section 825.2. The County demonstrated that the jury found the deputies had acted with actual malice, or, at least, that there was a triable issue of fact as to whether they had acted with malice, and therefore the deputies’ motion for summary adjudication on the issue of indemnification should have been denied.

PERSONNEL RECORDS

Dashboard camera video of arrest does not constitute a confidential personnel record.

City of Eureka v. Superior Court, 2016 Cal. App. LEXIS 598 (Cal. App. 1st Dist. July 19, 2016)

Facts: In December 2012, the in-car video equipment of a Eureka Police Department (Department) patrol vehicle recorded an arrest of a minor by Sergeant Adam Laird and other Eureka police officers. A citizen filed a complaint about the officers’ handling of the minor and the Department conducted an internal affairs investigation. The prosecution filed misdemeanor charges against Sergeant Laird, which were dismissed in January 2014 after it was determined that he did not use excessive force during the arrest. A local reporter, Thadeus Greenson, wrote articles about the arrest and litigation, and in August 2014 made a California Public Records Act[8] (CPRA) request with the City seeking disclosure of the arrest video. The City denied the request, citing CPRA exemptions for personnel records and investigative files.

In November 2014, Greenson filed a request for disclosure of the arrest video pursuant to Welfare and Institutions Code section 827, which permits public disclosure of confidential juvenile records in limited circumstances. The county probation department objected, arguing, among other things, that Greenson had not demonstrated good cause for the disclosure under Welfare and Institutions Code section 827 and that release of the video would prejudice the minor by exposing his image, actions, and records to public scrutiny.

Prior to a hearing scheduled for February 2015, Greenson filed a reply, arguing the case called into question the conduct of the entire Department, the public had a right to evaluate the conduct of its officers and prosecutors, disclosure would not harm the minor because the case had already been widely reported on, and the video was not a personnel record protected by Pitchess v. Superior Court[9] statutes.

At the February 2015 hearing, the minor waived his right to confidentiality regarding the video and consented to its disclosure. The City argued that the Department had conducted an internal affairs investigation and the video was part of that investigation, so it could not be released without a Pitchess motion, which it argued was not possible because there were no criminal proceedings pending. Ultimately, the court conducted an in camera review of the unedited version of the arrest footage, and in May 2015 ordered disclosure of the video pursuant to a protective order, concluding the video was not a confidential police personnel record protected by Pitchess statutes.

The City filed a writ petition seeking to vacate the court’s ruling, which the First District denied. The City appealed. On appeal, the City argued that the lower court erred in ordering disclosure of the arrest video because the video constituted a confidential personnel record protected from disclosure by Pitchess law, and that Welfare and Institutions Code section 827 could not be used to circumvent Pitchess procedure. The City also argued that in-car videos come within Penal Code section 832.8(d).[10]

Held: The in-car video was not a confidential personnel record within the meaning of Penal Code section 832.8[11] because it was not generated in connection with the arresting officer’s appraisal or discipline, and was not protected from disclosure under Penal Code section 832.7(a),[12] irrespective of whether the video might be considered for purposes of appraisal or discipline.

Citing Long Beach Police Officers Assn. v. City of Long Beach[13] in support of its conclusion, the First District noted that the City did not demonstrate that the arrest video was generated in connection with Sergeant Laird’s appraisal or discipline. Instead, the video was just a visual record of the minor’s arrest. The Court concluded that the arrest video was analogous to information contained in incident reports relating to an arrest, which are not typically considered personnel records under Penal Code section 832.8.

In reaching its decision, the Court addressed various arguments made by the City. In response to the City’s argument that in-car camera videos came within Penal Code section 832.8(d), because a police department might eventually use the videos to evaluate whether to commence disciplinary proceedings against a police officer, the Court noted that the fact that officers involved in an incident might at some unspecified point in the future face an internal affairs investigation or discipline does not transmute arrest videos into disciplinary documentation or confidential personnel information.

The Court also rejected the City’s argument that the video was a personnel record under Penal Code section 832.8(e) because the Department had used a recording from the incident during the internal affairs investigation and the video was the “backbone” of such investigation and relied upon by the investigating officers, noting the argument was unsupported by the evidence in the appellate record. It noted that, even if it assumed that the video was considered or relied upon during the internal affairs investigation, such consideration or reliance did not transmute the video into confidential personnel information.

The video was generated both in advance of and separate from the investigation of Sergeant Laird. Thus, because the arrest video was not a personnel record, the First District affirmed the lower court’s order requiring release of the video.

For a more detailed discussion of this case, please see Client Alert Vol. 31, No. 14 authored by Martin J. Mayer and available at www.jones-mayer.com.

 

QUALIFIED IMMUNITY

Court marshal not entitled to absolute immunity for force utilized in removing disruptive bail agent from courtroom; however, marshal was entitled to qualified immunity because it was not clearly established that the amount of force employed violated the Constitution.

Brooks v. Clark County, 2016 U.S. App. LEXIS 12510 (9th Cir. July 7, 2016)

Facts: In November 2011, Adam Brooks, a bail enforcement agent, and two of his colleagues, John Kevin Smith and Matthew Penny, went to the Regional Justice Center in Las Vegas in order to take two women who were appearing in front of Justice of the Peace Deborah Lippis into custody at the request of a bail bond insurance company. Judge Lippis told Smith that the women could not be taken into custody until the bond insurance company filed a proper motion with the court. Despite the judge’s instructions, Smith told the women they could not leave until he spoke with his superiors. Judge Lippis told her court marshal, Jim Keener, to tell Smith he could not tell the women what to do and that the women were free to go, threatening to take Smith into custody.

Judge Lippis attempted to resume the court’s business, but was interrupted several times by Smith and then Brooks. At one point, Judge Lippis directed Keener to escort Brooks from the courtroom. According to Brooks’s complaint, Keeener then shoved him through the courtroom’s double doors, injuring his back.

Brooks and Smith filed a lawsuit under 42 U.S.C. § 1983 against several defendants, including Keener in his individual capacity. The district court dismissed most of the lawsuit, but did not dismiss Brooks’s claim that Keener used excessive force in removing Brooks from the courtroom. Keener moved to dismiss on the ground that he was entitled to absolute, quasi-judicial immunity, or, alternatively, qualified immunity. The district court rejected his arguments, and Keener appealed.

On appeal, Keener argued that he should be absolutely immune from having to pay damages for the manner in which carried out the judge’s directive to escort Brooks from the courtroom, and also argued that the suit against him should be dismissed on the grounds of qualified immunity.

Held: Keener was not entitled to absolute immunity; however, he was entitled to qualified immunity because a reasonable marshal could have believed it was permissible under the Fourth Amendment to use the amount of force Brooks claimed he employed.

First addressing Keener’s argument that he was entitled to absolute immunity, the Ninth Circuit noted that it had never held that courtroom officials, such as bailiffs and marshals, receive absolute immunity whenever they act pursuant to a judge’s order, irrespective of whether they carry out the order in a manner that deviates from the judge’s command.

Reviewing Supreme Court precedent, the Court explained that the touchstone of the applicability of judicial and quasi-judicial immunity has been performance of the function of resolving disputes between parties or adjudicating private rights, and that it has been extended to officials other than judges where such individuals have judgments that are functionally comparable to judges. The Court noted the function Keener was carrying out in removing Brooks from the courtroom could not be described as being comparable to the task of a judge. Thus, Keener was not entitled to absolute immunity.

Addressing Keener’s alternative argument that he should be entitled to qualified immunity, the Court explained that qualified immunity shields officers from damage liability where it was not clearly established that the Fourth Amendment prohibited their conduct in the situation they confronted. To determine whether Keener was entitled to qualified immunity, the Court noted that it had to determine whether it was beyond debate, at the time Keener seized Brooks, that the amount of force Keener employed violated the Constitution. If it was not beyond debate, and Keener’s actions did not clearly violate Brooks’s constitutional rights, then Keener would be entitled to qualified immunity.

Assuming the facts of Brooks’s complaint as true, the Court found that it could not be said that the use of force was unquestionably unconstitutional, meaning that a reasonable marshal could have thought the Fourth Amendment permitted him to use the amount of force Brooks claims Keener utilized. Therefore, the Court concluded that, on that reason alone, Keener was entitled to qualified immunity and his motion to dismiss should have been granted.

 

 

FREEDOM OF INFORMATION ACT

Agency could not shield its records under the Freedom of Information Act by the expedient of storing them in a private email account controlled by the agency head.

Competitive Enterprise Institute v. Office of Science and Technology, 2016 U.S. App. LEXIS 12357 (D.C. Cir. July 5, 2016)*

Facts: In October 2013, Competitive Enterprise Institute (CEI) submitted a Freedom of Information Act (FOIA)[14] a request for “all policy/[Office of Science and Technology (OSTP)]-related email sent to or from jholdren@whrc.org (including as cc: or bcc:).” The email address in the request was a nonofficial account maintained by the Director of OSTP, John Holdren, at Woods Hole Research Center (WHRC).

In February 2014, OSTP responded by refusing to provide the requested records because such records were beyond the reach of the FOIA due to the fact that they were on an account under the control of WHRC. After exhausting administrative remedies, CEI brought suit, seeking an injunction requiring production of work-related emails sent to or from the WHRC account. OSTP moved to dismiss the case, arguing that the email was not under the control of the agency and therefore its contents could not be required to be produced under the FOIA nor could OSTP conduct a search. The district court granted the motion to dismiss, and CEI appealed.

Held: An agency cannot shield its records under FOIA by storing them in a private e-mail account controlled by the agency head. Reviewing the cases cited by each party in support of their positions, the District of Columbia Circuit found Ryan v. Department of Justice[15] most helpful. Noting that an agency always acts through its employees and officials, the Court noted that, if an agency head controls what would otherwise be an agency record, then such record is still an agency record that still must be searched or produced.

Citing the Supreme Court’s description of the purpose of the FOIA, which is to serve citizens’ rights to be informed about what their government is doing, the Court stated that allowing a department head to deprive citizens of their right to know what the department is doing by the expedient of maintaining his or her department emails on an account in a different domain would not serve such purpose.

The Court reversed the dismissal and remanded the case, noting that it was not ordering disclosure of any document.

*This decision is not binding on California, however, it may influence the California Supreme Court’s decision in City of San Jose v. Superior Court, 225 Cal. App. 4th 75 (6th Dist. 2014) (holding that the California Public Records Act (CPRA) does not require public access to communications between public officials using private cell phones or email accounts), which is currently pending before the Court.

For a more detailed discussion of this case, please see Client Alert Vol. 31, No. 13 authored by Martin J. Mayer and available at www.jones-mayer.com.

[1] 384 U.S. 436 (1966).

[2] 560 U.S. 370 (2010).

[3] “A public entity may refuse to provide for the defense of a civil action or proceeding brought against an employee or former employee if the public entity determines any of the following: (1) The act or omission was not within the scope of his or her employment.”

[4] “(a) A public entity may refuse to provide for the defense of a civil action or proceeding brought against an employee or former employee if the public entity determines any of the following: … (2) He or she acted or failed to act because of actual fraud, corruption, or actual malice.”

[5] “Nothing in this part affects liability based on contract or the right to obtain relief other than money or damages against a public entity or public employee.”

[6] Gov. Code § 825(a) states: “(a) Except as otherwise provided in this section, if an employee or former employee of a public entity requests the public entity to defend him or her against any claim or action against him or her for an injury arising out of an act or omission occurring within the scope of his or her employment as an employee of the public entity and the request is made in writing not less than 10 days before the day of trial, and the employee or former employee reasonably cooperates in good faith in the defense of the claim or action, the public entity shall pay any judgment based thereon or any compromise or settlement of the claim or action to which the public entity has agreed.

If the public entity conducts the defense of an employee or former employee against any claim or action with his or her reasonable good-faith cooperation, the public entity shall pay any judgment based thereon or any compromise or settlement of the claim or action to which the public entity has agreed. However, where the public entity conducted the defense pursuant to an agreement with the employee or former employee reserving the rights of the public entity not to pay the judgment, compromise, or settlement until it is established that the injury arose out of an act or omission occurring within the scope of his or her employment as an employee of the public entity, the public entity is required to pay the judgment, compromise, or settlement only if it is established that the injury arose out of an act or omission occurring in the scope of his or her employment as an employee of the public entity.

Nothing in this section authorizes a public entity to pay that part of a claim or judgment that is for punitive or exemplary damages.”

[7] “(a) Subject to subdivision (b), if an employee or former employee of a public entity pays any claim or judgment against him, or any portion thereof, that the public entity is required to pay under Section 825, he is entitled to recover the amount of such payment from the public entity.

(b) If the public entity did not conduct his defense against the action or claim, or if the public entity conducted such defense pursuant to an agreement with him reserving the rights of the public entity against him, an employee or former employee of a public entity may recover from the public entity under subdivision (a) only if he establishes that the act or omission upon which the claim or judgment is based occurred within the scope of his employment as an employee of the public entity and the public entity fails to establish that he acted or failed to act because of actual fraud, corruption or actual malice or that he willfully failed or refused to conduct the defense of the claim or action in good faith or to reasonably cooperate in good faith in the defense conducted by the public entity.

(c) If the provisions of this section are in conflict with the provisions of a memorandum of understanding reached pursuant to Chapter 12 (commencing with Section 3560) of Division 4 of Title 1, the memorandum of understanding shall be controlling without further legislative action, except that if such provisions of a memorandum of understanding require the expenditure of funds, the provisions shall not become effective unless approved by the Legislature in the annual Budget Act.”

[8] Cal. Gov. Code § 6250 et seq.

[9] 11 Cal. 3d 531 (1974).

[10] “(a) Peace officer or custodial officer personnel records and records maintained by any state or local agency pursuant to Section 832.5, or information obtained from these records, are confidential and shall not be disclosed in any criminal or civil proceeding except by discovery pursuant to Sections 1043 and 1046 of the Evidence Code. This section shall not apply to investigations or proceedings concerning the conduct of peace officers or custodial officers, or an agency or department that employs those officers, conducted by a grand jury, a district attorney’s office, or the Attorney General’s office.”

[11] “As used in Section 832.7, ‘personnel records’ means any file maintained under that individual’s name by his or her employing agency and containing records relating to any of the following:

(a) Personal data, including marital status, family members, educational and employment history, home addresses, or similar information.

(b) Medical history.

(c) Election of employee benefits.

(d) Employee advancement, appraisal, or discipline.

(e) Complaints, or investigations of complaints, concerning an event or transaction in which he or she participated, or which he or she perceived, and pertaining to the manner in which he or she performed his or her duties.

(f) Any other information the disclosure of which would constitute an unwarranted invasion of personal privacy.”

[12] “(a) Peace officer or custodial officer personnel records and records maintained by any state or local agency pursuant to Section 832.5, or information obtained from these records, are confidential and shall not be disclosed in any criminal or civil proceeding except by discovery pursuant to Sections 1043 and 1046 of the Evidence Code. This section shall not apply to investigations or proceedings concerning the conduct of peace officers or custodial officers, or an agency or department that employs those officers, conducted by a grand jury, a district attorney’s office, or the Attorney General’s office.”

[13] 59 Cal. 4th 59 (2014).

[14] 5 U.S.C. § 552.

[15] 617 F.2d 781 (D.C. Cir. 1980) (rejecting the argument that documents under the exclusive control of the Attorney General were not within the agency and concluding that there was no basis in the FOIA to view the Attorney General as distinct from its department for FOIA purposes)