Government Code, § 821.6 does not provide law enforcement officers with absolute immunity absent the subsequent instigation of a judicial proceeding. 

• The California Government Claims Act 

• Government Code, § 821.6 and absolute civil immunity 

• Immunity for injuries?inflicted during a law enforcement investigation  

Government Code § 821.6, as a part of the California Government Claims Act,?provides public employees, and their employers, with absolute immunity from civil liability for their tortious acts, but only in acts leading to the actual initiation of a criminal prosecution or other judicial or administrative proceeding.  

Married couple José and Dora Leon had a dispute with another man (the details of which were not described), resulting in the other man shooting José. Riverside County sheriff’s deputies found José unconscious in a driveway of a mobile home lot near where he lived. Hearing more shots, the deputies dragged José to the cover of a nearby parked vehicle, where they unsuccessfully attempted to revive him. In dragging his body to where they could work on him, José’s pants slid down to around his ankles, exposing his naked body. José was left exposed like this to both Dora and the general public for the next eight hours, during which the deputies at some point found the shooter, who had committed suicide. As a result, no criminal case or other court proceedings were ever initiated.  

Dora subsequently sued in state court, asserting a single cause of action for the “negligent infliction of emotional distress.” The complaint alleged that the deputies and the public entity that employed them (Riverside County) failed to exercise reasonable care by leaving José’s body exposed and uncovered for hours, for anyone to view. The county moved for summary judgment to dismiss the lawsuit, arguing that because the suit arose from actions the deputies took while investigating José's homicide, both the employees and their employer were statutorily immune from liability pursuant to?Government Code § 821.6. The trial court agreed and entered judgment for the civil defendants. The Fourth District Court of Appeal affirmed. (See Leon v. County of Riverside?(2021) 64 Cal.App.5th 837.)  

In so doing, the Fourth District relied upon a line of appellate court cases that “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.” (Italics in original; Id., at p. 846.) Per the Fourth District Court of Appeal, because the deputies’ negligence, if any, in failing to cover José’s body occurred during the deputies’ performance of their investigative duties, both the deputies as well as the county were immune from civil liability, pursuant to the current interpretation of Government Code § 821.6. Dora Leon appealed, and the California Supreme Court granted review.  

The California Supreme Court unanimously reversed.  

Until 1963, California used a common law doctrine of governmental immunity that generally barred tort (i.e., civil) lawsuits against public entities. In 1961, the California Supreme Court did away with this common law approach relative to governmental tort immunity. (See Muskopf v. Corning Hospital Dist.?(1961) 55 Cal.2nd 211.) So the Legislature stepped in, reestablishing governmental immunity by enacting into law what was known at the time as the “California Tort Claims Act,” and later changed to the?“Government Claims Act.” This comprehensive legislation abolished once and for all common law tort liability and immunity for public entities, replacing it with “a comprehensive statutory scheme governing the liabilities and immunities of public entities and public employees for torts.”  

Generally, the Act makes public entities liable for the negligent on-the-job acts of its employees. However, it also provides exceptions. For instance, the Act immunizes public entities from civil liability when the employee him- or herself is immune under the applicable statutes. (Government Code § 815(a) & (b)) The Act contains numerous provisions conferring immunity on employees under certain circumstances, including for acts or omissions resulting from an exercise of discretion vested with the employee (id.,?§ 820.2); for the execution of enactments when carried out with due care (id.,?§ 820.4); and for the failure to adopt or enforce an enactment (id.,?§ 821). 

The immunity provision at issue in this case is Government Code § 821.6. This section provides that: 

“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.”  

The state Supreme Court, in this decision, discusses what “instituting or prosecuting any judicial or administrative proceedings” means. In so doing, the issue becomes whether a resulting in-court proceeding (whether judicial or administrative) must actually occur for section 821.6 to confer immunity on a police officer who acts negligently in the field.  

The court goes on to discuss several lower court cases that go both ways on this issue. Ultimately, the court held that because 821.6 specifically requires that some sort of “judicial proceeding” actually occur, the section cannot be used to bestow immunity on a law enforcement officer absent at least the filing of criminal charges or some other resulting judicial proceeding. 

In the instant case, both José Leon and the man who shot him were deceased. No criminal charges or other judicial proceedings resulted from the deputies’ alleged negligence by failing to remove or cover José’s body in a timely manner. Contrary to rulings by the trial court and the Fourth District Court, negligence at the scene of an incident alone, without some resulting “judicial proceeding,” precludes a civil plaintiff from using Government Code § 821.6 as the basis for a civil suit.  

Per the high court: “(S)ection 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 plaintiff’s injuries was the institution or prosecution of an official proceeding.” No such proceedings resulted from this incident.  

After analyzing the legislative intent, the common law and statutory interpretation rules, along with the relevant prior case decisions from both sides, the court concluded that section 821.6 does not confer absolute immunity from civil liability on the deputies (and thus also the county) in this case.  

However, the court also noted “that section 821.6 is not the only provision of the Government Claims Act capable of addressing the concerns the County now raises.” In other words, other provisions of the Government Claims Act may in fact confer immunity on the parties in this case, even if not to the same extent as section 821.6, and even if not always absolute. 

After suggesting other such Government Claims Act provisions (e.g., Government Code § § 825-825.6, public entity defense of claims and payment of judgments against public employees; Government Code § 820.2, immunity for discretionary acts taken within the scope of authority; Government Code § § 820.4-821.8, immunity for any “act or omission, exercising due care, in the execution or enforcement of any law,” and/or immunity for the “failure to enforce an enactment” or for “failure to arrest.”), the court concluded that “(d)epending on the circumstances, these and other immunity provisions may apply to certain investigatory actions of law enforcement officers even if?section 821.6’s absolute immunity does not apply.”  

The Court therefore remanded those issues back to the trial court for consideration of the applicability of any of these other Government Claims Act provisions.  

It must also be noted that this case does not affect an officer’s federal “qualified immunity” from civil liability (pursuant to 42 U.S.C. § 1983) for actions that either don’t violate the U.S. Constitution or a federal statute, or for which prior case authority is not sufficiently settled that the officer should have known that what he or she is doing (or isn’t doing) is wrong.  

All this decision here stands for is that Government Code § 821.6’s absolute immunity provisions do not apply when there are no corresponding “judicial proceedings” and the officer’s actions (or inactions) in the field are the sole issue.  

It’s really a very narrow ruling, and one I probably would not have even briefed had it not been for the concern of some officers as expressed to me about whether this case might have done away with any claim of immunity (absolute or qualified) for an officer’s negligence or other illegal or unconstitutional acts in the field.  

That having been said, I’m not sure why the officers in this case left José’s naked body exposed for some eight hours. Of course, I wasn’t there, but it seems to me that at some point, even if the shooter had not yet been located. someone would have thought to have some concern for José’s dignity in death (not to mention Dora Leon’s distress) and covered him up.