No immunity for false arrest under Government Code § 821.6, or derivative claims of negligence and emotional distress.

The Case:  Cousins v. Lockyer, 568 F. 3d 1063  (9th Circuit 2009)

Facts:

●    Cousins was arrested June 1999 under California Penal Code § 290(g)(2), leading to his conviction and sentence of twenty-five years to life in prison under California's "three strikes" law.

●    In October 2003, the California Court of Appeal, First Appellate District, decided People v. North, 112 Cal.App.4th 621, 5 Cal.Rptr.3d 337 (2003), in which the court declared California Penal Code § 290(f)(1), the statute under which Cousins had been incarcerated, unconstitutionally vague.

●    In January 2004, Cousins filed a writ of habeas corpus in the California Supreme Court, arguing that he was entitled to release because the statute under which he was imprisoned had been declared unconstitutional.

●    More than a year later, the state responded to Cousins' petition, and argued that even though California Penal Code § 290(f)(1) had been declared unconstitutionally vague, it was still valid in his case.

●    Cousins was released from prison in June 2005, approximately one year and seven months after the North court overturned California Penal Code § 290(f)(1).

●    In February 2007, Cousins filed a complaint in federal district court, alleging that his extended incarceration violated several state laws and his civil rights under § 1983.

The court below granted motions to dismiss under F.R.C.P 12(b)(6) [Failure to state a cause of action] on the grounds that the Attorney General [Locklyer] was entitled to absolute prosecutorial immunity, and that the remaining defendants are entitled to qualified immunity.

On appeal: For reasons not discussed here, the AG was granted prosecutorial immunity as to the federal §1983 claims, and the remaining defendants (prison officials) recieved qualified immunity.

HOWEVER, as to the AG, no immunities were granted for the state law causes of action pursuant to Civ. Code § 52.1, for the following reasons.

The district courts relied on California Government Code § 821.6, the California statutory equivelant to prosecutorial immunity. However, the case being one of false imprisonment under Government Code §815.6,  neither the immunity afforded by Government Code § 821.6, nor that provided by any other state governmental immunity provision, applies. See Sullivan v. County of L.A., 12 Cal.3d 710,

The court also reversed summary judgment on the state law negligence and negligent infliction of emotional distress claims, finding that to the extent they were "base[d] ... on the same facts as his false imprisonment claim" there are "derivative of the false arrest and false imprisonment claims" are "related" to his false imprisonment claim, both Martinez and Asgari require that we reverse their dismissal as to the AG because California's statutory immunities do not apply. Citing Martinez v. City of Los Angeles 141 F.3d 1373, 1379 (9th Cir.1998); Asgari v. City of Los Angeles 15 Cal.4th 744 (1997)

The remaining defendants:

Summary judgment was granted to the remaining defendants on the basis of qualified immunity, which is not available under California law.

"`[t]he doctrine of qualified governmental immunity is a federal doctrine that does not extend to state tort claims against government employees.'" Venegas v. County of L.A., 153 Cal.App.4th 1230, 63 Cal. Rptr.3d 741, 751 (2007) (quoting Ogborn v. City of Lancaster, 101 Cal.App.4th 448, 124 Cal.Rptr.2d 238, 246 (2002)). California law is also clear that qualified immunity does not apply to state civil rights claims. See id. at 753 (holding that "qualified immunity of the kind applied to actions brought under 42[U.S.C. § ] 1983 does not apply to actions brought under [the Bane Act]").

An important aspect of this decision is the derivative claims exception to immunity for state claims of negligence, negligent infliction of emotional distress under the "Bane Act".