Conway v. County of Tuolumne
180 Cal. Rptr. 3d 598
Cal. Ct. App.2014Background
- In May 2011 deputies responded after George Conway reported his son Donald (an alleged armed felon) fired shots at George’s mobile home and brandished a handgun.
- Officers set a perimeter around the 15990 house, used a throw phone and negotiations; after failing to make contact they authorized deployment of a tear gas canister into the house.
- SWAT breached the residence minutes later; no one was inside. Tear gas residue rendered the home uninhabitable.
- George sued Tuolumne County for negligence, nuisance, trespass, and strict liability for using tear gas.
- The trial court granted summary judgment for the County, finding discretionary immunity under Gov. Code § 820.2. George appealed.
- The Court of Appeal affirmed, holding the officers’ decision to use tear gas was a discretionary act protected by statutory immunity.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether County is immune under Gov. Code § 820.2 for officers’ decision to deploy tear gas | Conway: the decision to deploy and the SWAT conduct were ministerial/tactical implementation (not basic policy) and thus not immune; officers ignored evidence that Donald was not inside | County: the decision to arrest and the means to effectuate it (including tear gas) were discretionary judgments protected by § 820.2 | Held: Immunity applies — the decision to use tear gas involved deliberation and balancing and is a discretionary act protected by § 820.2 and § 815.2(b) |
| Whether triable issues of fact about reasonableness preclude summary judgment | Conway: facts support inference officers unreasonably gassed an empty house | County: § 820.2 immunity removes reasonableness from the inquiry; even abused discretion is protected | Held: Court rejected reasonableness challenge as irrelevant once discretion was found; summary judgment affirmed |
| Whether ministerial negligence in implementation overcomes immunity (McCorkle-type argument) | Conway: even if deployment was discretionary, the SWAT team’s subsequent acts were ministerial and negligent | County: subsequent tactical choices likewise involved judgment and were discretionary | Held: Court distinguished McCorkle and similar cases and found causal link to discretionary decision; implementation here remained discretionary |
| Whether other defenses (consent, Penal Code § 844 exigency) bar claims | Conway: consent did not extend to exceeding permission; § 844 is not an immunity statute | County: alternative defenses pleaded | Held: Court did not reach these alternatives because discretionary immunity resolved the case in County’s favor |
Key Cases Cited
- Caldwell v. Montoya, 10 Cal.4th 972 (1995) (explains scope of discretionary immunity under Government Claims Act)
- Johnson v. State of California, 69 Cal.2d 782 (1968) (planning vs operational distinction for immunity)
- McCorkle v. City of Los Angeles, 70 Cal.2d 252 (1969) (discretionary decision immune but negligent execution of investigation may be actionable)
- Watts v. County of Sacramento, 136 Cal.App.3d 232 (1982) (police decision to intervene and related discretionary actions protected)
- Bratt v. City and County of San Francisco, 50 Cal.App.3d 550 (1975) (pursuit decision was discretionary and immune)
- Customer Co. v. City of Sacramento, 10 Cal.4th 368 (1995) (police use of tear gas raised Government Claims Act issues; Court declined to decide immunity question there)
- Thompson v. County of Alameda, 27 Cal.3d 741 (1980) (decisions requiring comparisons and evaluations are discretionary)