Brian Mulligan v. James Nichols
835 F.3d 983
9th Cir.2016Background
- On May 15, 2012, Brian Mulligan (a prominent entertainment/finance executive) was involved in an encounter with LAPD Officers Nichols and Miller; parties dispute whether officers used excessive force.
- Mulligan filed an administrative claim against the City alleging unlawful officer conduct; the incident attracted press coverage after a police report leaked and the LAPPL issued a press release accusing Mulligan of frequent bath-salts use and published a taped admission.
- Mulligan lost his job following the media coverage and sued the City, the officers, the LAPPL, and LAPPL officials under 42 U.S.C. § 1983 (First Amendment retaliation) and multiple state-law claims (excessive force, assault/battery, false imprisonment, negligence, negligent supervision).
- The district court granted summary judgment for defendants on the First Amendment retaliation claim and on certain state-law claims; the excessive-force claims went to trial and the jury found for defendants, eliminating the need for a second phase on negligent supervision.
- On appeal Mulligan challenged (1) summary judgment on retaliation, (2) summary judgment on police negligence (pre-force conduct), (3) two evidentiary exclusions at trial, and (4) the decision not to proceed to the negligent-supervision phase.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| First Amendment retaliation | Mulligan: LAPPL/City publicity accusing him of drug use and leaking reports was retaliation that chilled his right to pursue his administrative claim | Defendants: their statements were speech, not state action imposing regulatory or tangible harm; no threat/coercion to cause imminent punishment | Court: Affirmed summary judgment for defendants — alleged speech was not sufficiently adverse/state action to support §1983 retaliation claim |
| Police negligence (pre-force conduct) | Mulligan: taking him to a motel against his will and other pre-force conduct created triable issue whether officers’ tactics made later force negligent | Defendants: causal link between earlier conduct and later use of force is too attenuated; no applicable California negligence theory here | Court: Affirmed summary judgment — pre-force conduct was too temporally and causally remote to create negligence liability under California law |
| Evidentiary exclusion: lack of criminal charges | Mulligan: absence of criminal charges contradicted officers’ violent-conduct narrative | Defendants: irrelevant or misleading; prosecutor decisions not probative of truth of events | Court: No abuse of discretion; evidence marginally relevant and properly excluded under Rule 403 to avoid confusion |
| Evidentiary exclusion: officer’s prior sexual-assault accusations | Mulligan: prior allegations show propensity or pattern bearing on officer’s conduct | Defendants: prior accusations are unrelated; inadmissible character evidence under Rule 404(b) | Court: No abuse of discretion; prior allegations concerned distinct conduct and were excluded |
Key Cases Cited
- Gini v. Las Vegas Metropolitan Police Department, 40 F.3d 1041 (9th Cir.) (governmental defamatory statements without state action affecting governmental benefits do not alone support §1983 retaliation)
- Nunez v. City of Los Angeles, 147 F.3d 867 (9th Cir.) (mere threats/harsh words ordinarily do not constitute adverse employment action for First Amendment claim)
- Mendocino Environmental Ctr. v. Mendocino County, 192 F.3d 1283 (9th Cir.) (false accusations made in investigative context that lead to arrests/searches can support First Amendment claim)
- McCullen v. Coakley, 134 S. Ct. 2518 (2014) (First Amendment protects free marketplace of ideas; government speech must be considered)
- Garcetti v. Ceballos, 547 U.S. 410 (2006) (public employees retain some First Amendment rights despite employment)
- Suarez Corp. Indus. v. McGraw, 202 F.3d 676 (4th Cir.) (when retaliation is in the nature of speech, no violation absent threat/coercion intimating imminent punishment)
- Bloch v. Ribar, 156 F.3d 673 (6th Cir.) (disclosure of extremely private, humiliating details by officials may support retaliation claim)