Casares v. Antonovich

9 F. App'x 628

Opinion

MEMORANDUM

Footnotes

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In Trevino v. Gates, 99 F.3d 911, 918 (9th Cir.1996), we held that “[a] city council [receives qualified immunity] if it indemnifies officers against punitive damage awards on a discretionary, case by case basis, and complies in good faith with the requirements of Cal. Gov.Code § 825(b).” The negative implication, that members of local legislative bodies do not receive qualified immunity if they indemnify officers in bad faith, was adopted in Cunningham v. Gates, 229 F.3d 1271, 1292-93 (9th Cir. 2000). In Cunningham, we granted city council members qualified immunity at the summary judgment stage because “[t]he council members’ evidence suggests that they implemented section 825’s indemnification in good faith in accordance with Trevino.” 229 F.3d at 1293. Thus, because plaintiff has alleged bad faith indemnification here, the district court’s denial of qualified immunity at the dismissal stage was proper. If, at summary judgment, defendants provide evidence of their good faith that precludes a genuine issue as to that material fact, a grant of qualified immunity would then be required, as it was in Cunningham.1

AFFIRMED.

This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Circuit Rule 36-3.

1

, Because defendants’ argument that plaintiff has not articulated any conduct by the county supervisors that would constitute a depriva tion of his constitutional rights was not raised before the district court in defendants' motion to dismiss, we do not consider it on appeal.