DARYL F. GATES et al., Petitioners, v. THE SUPERIOR COURT OF LOS ANGELES COUNTY, Respondent; TAKEO HIRATA et al., Real Parties in Interest.
No. B083893
Second Dist., Div. Five
Feb. 15, 1995
32 Cal. App. 4th 481
James K. Hahn, City Attorney, Thomas C. Hokinson and Annette Keller, Assistant City Attorneys, for Petitioners.
No appearance for Respondent.
Johnnie L. Cochran, Jr., Eric G. Ferrer, Esner, Marylander, Zakheim & Higa, Billie Ann U. Higa and Stuart B. Esner for Real Parties in Interest.
TURNER, P. J.—
I. INTRODUCTION
Defendants, Daryl F. Gates, Matthew Hunt, Ronald Frankel, Ronald Banks, Paul Jefferson, and Bob Hansohn, all former or present senior commanders in the Los Angeles Police Department,1 seek a writ of mandate to compel the respondent court to sustain a demurrer to two of six causes of action in the first amended complaints brought by plaintiffs, Takeo Hirata, Fidel Lopez, and Reginald Denny. We conclude that under plaintiffs’ two state law causes of action, no monetary damages may be recovered for the alleged discriminatory deployment of police officers during a riot. In so holding, we determine: the Torts Claims Act provides an immunity from money damages for the failure to provide sufficient police protective services during a riot; that immunity for failing to provide sufficient police protective services applies only to monetary claims but not to requests for equitable relief; that racially neutral immunity from damages does not violate the equal protection clause of the United States Constitution; and no right to monetary damages arises from a violation of the equal protection provisions of the California Constitution. Therefore, the demurrers should have been sustained without leave to amend as to plaintiffs’ two state law claims and accordingly we issue our writ of mandate.
II. THE FIRST AMENDED COMPLAINTS
A. Overview of Federal and State Causes of Action
The present litigation arises out of the riot which began on April 29, 1992, in Los Angeles after several Los Angeles police officers were not convicted of charges arising out of a criminally excessive force case tried in Ventura County. The operative pleadings of the three plaintiffs, the first amended complaints, all of which are essentially identical, contain six causes of action. The first four causes of action arise under
B. The Relevant First Amended Complaints’ Allegations Concerning the Two State Causes of Action
1. The Historical Setting and Identity of Defendants
On April 29, 1992, each defendant was a senior supervisor in the department. Their ranks and responsibilities were as follows as alleged in the first amended complaints: Chief Gates; Deputy Chief Hunt, commander of the department‘s South Bureau which consisted of the Harbor, 77th Street, and southeast divisions; Deputy Chief Frankel; Commander Banks, assistant commanding officer of South Bureau; Captain Hansohn, the 77th Street division commander; and Captain Jefferson. The first amended complaints later detailed their respective roles on April 29 and 30, 1992. On April 27, 1992, while the jury was deliberating in Ventura County, Chief Gates announced to his officers that acquittals could lead to “civil disturbance, rioting and looting.” He made the same announcement to his officers on April 29, 1992. Further, the first amended complaints alleged defendants should have known that civil disturbances would occur in the event of acquittals in “areas composed of Black, Hispanic, and Asian citizens” and “South Central Los Angeles.”3
2. The Policy of Discrimination in the Allocation of Police Protective Services
According to the first amended complaints, defendants had adopted a policy of not training or preparing their officers because of an intent to
3. The Withdrawal of Officers and the Failure to Provide Police Protective Services
At 4 p.m., violence broke out at the intersection of Normandie and Florence Avenues of which defendants were all aware.4 Pursuant to the aforementioned “policy of discrimination in the distribution of police resources,” police protection services were withdrawn from minority communities and simultaneously deployed aggressively in “predominantly . . . Anglo populations.” At approximately 6 p.m. on April 29, 1992, pursuant to the aforementioned policy of discrimination in the allocation of police resources, defendants “withdrew police officers from the area . . . around Florence and Normandie” avenues for the purposes of denying citizens and other persons near the intersection “protective services.” With the “withdrawal of police officers” from that intersection, a signal was given to rioters that crime “would go unrestrained.” With the police withdrawal, officers were directed “not to respond” to crime near the intersection. Further, officers were ordered “not to respond to 9-1-1 calls for emergency assistance . . . .” The reason that emergency calls were not to be responded to was for the purpose of “denying” persons near the intersection “protective services.”
4. Allegations Concerning Individual Defendants
a. Chief Gates
It was alleged Chief Gates left Parker Center shortly after 6 p.m. to attend a political fundraiser and admitted there was a “willful failure to deploy police resources” and that “some people . . . were going to go without police assistance . . . .” Further, plaintiffs alleged at this time “Chief Gates had no intention to redeploy police officers in minority neighborhoods” and “officers . . . remained undeployed for over six hours . . . .” Further, it was alleged that Chief Gates had “in prior civil disturbances, including the Watts riots” withdrawn “L.A.P.D. resources” and failed “to redeploy said resources” in minority communities.
As to Deputy Chief Frankel, it was alleged he “assumed partial command” of the department at 4 p.m. on April 29, 1992, and with knowledge of the escalating violence, “refused to deploy or facilitate the deployment” of officers with the “intent to deny protective services” for unlawful discriminatory reasons. At 5:45 p.m., another defendant, who is not a party to this proceeding, Lieutenant Michael Moulin, the 77th Street division watch commander, directed department radio and computer terminal dispatchers not to “send police officers into the intersection . . . .” Later, Lieutenant Moulin “refused to deploy and/or facilitate the deployment of police officers” throughout South Central Los Angeles with the intent to deprive “protective services to citizens . . . in minority neighborhoods.”
c. Deputy Chief Hunt
As to Deputy Chief Hunt, it was alleged he assumed command of the “Field Command Post” after 6 p.m. on April 29, 1992, and at 7 p.m. “ordered the withdrawal of police officers away from the intersection . . . .” This order was made with the intent to deny those in the area “protective services . . . .” Further, Deputy Chief Hunt was alleged to have “refused to deploy or facilitate the deployment of police officers into surrounding minority neighborhoods throughout South Central Los Angeles with the intent to deny municipal services . . . in minority neighborhoods.”
d. Commander Banks
As to Commander Banks, it was alleged he was assigned as the “Executive Officer of the Field Command Post” by Deputy Chief Hunt. Commander Banks “ordered the withdrawal of police officers away from the intersection . . . with the intent to deny citizens [in the area] protective services . . . .” Commander Banks allegedly later refused to “deploy or facilitate the deployment of police officers into . . . minority neighborhoods.”
e. Captain Hansohn
As to Captain Hansohn, he was appointed by Deputy Chief Hunt as the “Personnel Officer of the Field Command Post . . . .” He too “ordered the withdrawal of police officers away from the intersection” and with the intent to deprive those in the area of “municipal and county services.”
f. Captain Jefferson
Captain Jefferson ordered the withdrawal of the officers away from the intersection for the purposes of denying “protective services.” He further
g. The 1,790 Officers in the Field Command Post but Not on the Streets in Minority Neighborhoods
By 12 midnight on April 30, 1992, there were 1,790 officers in the “Field Command Post” “as a result of defendants’ deliberate and systematic withdrawal of police resources from minority neighborhoods . . . .” Further, defendants “refused to deploy or facilitate the deployment of police officers into the surrounding minority” neighborhoods. Between 6 p.m. on April 29, 1992, and midnight on April 30, 1992, officers at the “Field Command Post” became angry because they “had a strong desire to provide protective services” but defendants ordered them not to do so “pursuant to . . . [the] aforementioned policy of discrimination in the distribution of police services . . . .” Moreover, in the absence of this policy, the angry officers in the “Field Command Post . . . would have in fact provided protective services” to persons near the intersection. Meanwhile, in predominantly Anglo communities, there was a “significant and visible police presence . . . .” This was pursuant to the “policy of [racial] discrimination in the distribution of police resources . . . .” The effect of that policy was to have a “significant and visible” number of officers in predominantly Anglo communities “while simultaneously withdrawing its resources from South Central Los Angeles . . . .” Further, between April 29, 1992, and May 4, 1992, there were more arrests in Valley Bureau than in South Bureau of the department. The difference in arrest rates “was the direct result of defendants’ aforementioned policy of discrimination in the distribution of police resources . . . .”
5. Plaintiffs’ Injuries
The three first amended complaints alleged that plaintiffs were in the intersection. While there, they were attacked by members of a mob. Because no Los Angeles police officers were present, “ordinary citizens” saved plaintiffs’ lives. Plaintiffs seek monetary compensation for their personal injuries.
6. Fifth Cause of Action
The fifth cause of action was entitled: “(Violation of Civil Rights) [
7. Sixth Cause of Action
The sixth cause of action was entitled: “(Violation of Civil Rights) [
III. DISCUSSION
A. Standard of Review
Because we are reviewing the sufficiency of a pleading, we apply the following standard of review: “The reviewing court gives the complaint a reasonable interpretation, and treats the demurrer as admitting all material facts properly pleaded. [Citations.] The court does not, however, assume the truth of contentions, deductions or conclusions of law. [Citation.] However, it is error for a trial court to sustain a demurrer when the plaintiff has stated a cause of action under any possible legal theory. [Citation.]” (Aubry v. Tri-City Hospital Dist., supra, 2 Cal.4th at pp. 966-967.) Because the present case involves the application of a governmental immunity to a pleading, we also apply the test articulated in Lopez v. Southern Cal. Rapid Transit Dist. (1985) 40 Cal.3d 780, 792-793, where the California Supreme Court held: “It is well established that the allegations of a complaint must be liberally construed with a view to attaining substantial justice between the parties [citations]. We have also held that, ‘in governmental tort cases “the rule is liability, immunity is the exception” . . . . Unless the Legislature has clearly provided for immunity, the important societal goal of compensating injured parties for damages caused by willful or negligent acts must prevail.’ [Citation.]” Because the present case involves claims against public employees and is controlled by the California Tort Claims Act, the following rules apply: “However, because under the Tort Claims Act all governmental tort liability is based on statute, the general rule that statutory causes of action
B. The Section 845 Immunity From Monetary Damages
1. Introduction
The respondent court should have sustained defendants’ demurrer without leave to amend. All of plaintiffs’ claims are premised upon a failure to provide adequate police protection at the intersection where they were attacked. Defendants are immune from civil liability for money damages for failing to provide adequate police protection against participants in criminal conduct during a riot.
We emphatically state that section 845 only provides an immunity from the payment of money damages. The first amended complaint alleges an ongoing deliberate racially based misallocation of police resources, but does not seek future equitable relief. Section 845 is only an immunity from the payment of monetary damages—it is inapplicable to a suit for equitable relief. (
In determining the scope of the section 845 immunity from money damages, we must interpret the statute to carry out the Legislature‘s intent. Our Supreme Court has noted: “When interpreting a statute our primary task is to determine the Legislature‘s intent. [Citation.] In doing so we turn first to the statutory language, since the words the Legislature chose are the best indicators of its intent.” (Freedom Newspapers, Inc. v. Orange County Employees Retirement System (1993) 6 Cal.4th 821, 826
In order to understand the applicability of section 845 to decisions by police commanders not to allocate resources in a riot environment, it is necessary to review the development of the law in connection with municipal liability for money damages resulting from mob violence.
a. Monetary Property Damage Liability Resulting From a Riot Prior to the 1963 Adoption of the Tort Claims Act
The 1963 enactment of section 845 and related immunities constituted a radical departure from then existing law relating to government‘s liability to pay money damages for property losses resulting from mob violence. Prior to the 1963 adoption of section 845, both in England and in this country, the traditional rule had provided for governmental financial liability for property damage caused by a mob. In Agudo v. County of Monterey (1939) 13 Cal.2d 285, 287, the California Supreme Court noted: “The genesis of the principle involved has been traced to the Statute of Winchester enacted in 1285 (1 Stat. 13 Edw. I, p. 2, ch. 3), which provided that a person robbed might sue the inhabitants of the hundred or county in which the robbery had taken place. In ancient England, the individual inhabitants of each community were in theory responsible for the preservation of peace and order therein; hence it was considered just to impose civil liability upon them for damage to property resulting from criminal disorders which should not have been permitted. (See 25 Halsbury‘s Laws of England, 2d ed., 359.) The American statutes rest largely upon the same fundamental principle. Local subdivisions of government which have been invested with police power to maintain law and order are subjected to a correlative liability for injuries to property occasioned by rioters. [Citation.] [¶] The prototype of the present American statutes is found in a section of the statute 1 Geo. I, St. 2, Ch. 5, commonly known as the ‘Riot Act‘. In the main the act was penal, making it a felony to engage in riots or public tumults, but one clause (section 6) created civil liability against the inhabitants of the hundred in which a riot had resulted in injury to private property. Liability was measured by the loss sustained, and consequently actions brought under this section of the act were held to be primarily remedial in spite of the fact that it was embodied in a statute which was otherwise entirely penal.” Later, the Agudo court held: “In various American jurisdictions statutes based upon section 6 of the English Riot Act usually have provided for compensatory damages to the person whose property was injured or destroyed, and in construing them the courts have generally followed the English view that the sufferer‘s right to damages is remedial. [Citations.]” (Id. at p. 288.)
In 1961, the California Supreme Court abrogated the doctrine of sovereign immunity in Muskopf v. Corning Hosp. Dist. (1961) 55 Cal.2d 211, 219-220. Prior to Muskopf, public entities and their employees were immune from suit based on the doctrine of sovereign immunity except as follows: where liability was provided by statute; when the public entity engaged in a proprietary as distinguished from governmental activity; in connection with nuisance claims; or where private property was taken for a public use under circumstances constituting inverse condemnation. (Van Alstyne, Governmental Tort Liability: Judicial Lawmaking in a Statutory Milieu (1963) 15 Stan.L.Rev. 163, 166; Kennedy & Lynch, Some Problems of a Sovereign Without Immunity (1963) 36 So.Cal.L.Rev. 161, 164.) When the Muskopf decision was issued, the California Law Revision Commission was in the process of a reevaluation of the doctrine of sovereign or governmental immunity as a result of a 1957 Assembly resolution which authorized the following action: “A study to determine whether the doctrine of sovereign or governmental immunity in California should be abolished or revised.” (Assem. Conc. Res. No. 22, Stats. 1957 (Reg. Sess.) res. ch. 202, p. 4590.) On January 2, 1963, the commission issued a study which recommended an expansion of former section 50140 et seq. When Muskopf was decided, former section 50140 only provided for governmental liability for property damage occasioned by mob actions. (Stats. 1949, ch. 81, § 1, p. 259.) The study, authored by Professor Arvo Van Alstyne of the School of Law at the University of California at Los Angeles, recommended that public entity financial liability be extended to personal injuries as well as property damage resulting from a riot. (Study Relating to Sovereign Immunity (Jan. 1963) 5 Cal. Law Revision Com. Rep. (1963) pp. 451-452.)
However, when the Law Revision Commission issued its recommendations for reform of the governmental tort system, the entire English and
As a result, the commission recommended the adoption of section 845 as it was ultimately enacted verbatim by the Legislature. The commission‘s comment to section 845 stated: “This section grants a general immunity for
The commission‘s recommendations were sent to the Legislature. The sponsor of the 1963 tort legislation recommended by the Law Revision Commission was Senator James A. Cobey. While the legislation was pending in the Senate, the report prepared by the Senate Judiciary Committee stated in connection with former section 50140, “Mob and riot damage liability would be eliminated.” (Com. on Jud., Rep. (1963) Appen. to Sen. J. Supp. (1963 Reg. Sess.) p. xiv.)
When the Tort Claims Act was finally adopted, section 50140 and its related provisions were repealed. (Stats. 1963, ch. 1681, § 17, p. 3286.) This eliminated governmental financial liability arising out of a riot for property damage. Notably, this amendment abrogated that rule of law which had been in effect in California since 1868. Further, it was inconsistent with the general American rule providing for such liability which found its basis in English law adopted in 1285. (Agudo v. County of Monterey, supra, 13 Cal.2d at p. 287.)
Apart from the repeal of section 50140 et seq., the 1963 legislation provided a number of immunities from monetary damages related to police and correctional activities. Section 818.2 provided that a public entity was not liable for “failing to enforce any law.” (Stats. 1963, ch. 1681, § 1, p. 3268.) The Law Revision Commission comment to section 818.2 stated: “This section would be unnecessary except for a possible implication that might arise from Section 815.6, which imposes liability upon public entities for failure to exercise reasonable diligence to comply with a mandatory duty imposed by an enactment. This section recognizes that the wisdom of legislative or quasi-legislative action, and the discretion of law enforcement officers in carrying out their duties, should not be subject to review in tort suits for damages if political responsibility for these decisions is to be retained.” (4 Cal. Law Revision Com. Rep. (Jan. 1963) p. 841, italics added.) The immunity from money damages for public entities for failing to enforce an enactment was also provided for public employees in section 821 which stated: “A public employee is not liable for an injury caused by his [or her]
b. The Pre-Muskopf Immunities From Monetary Damages for Personal Injury Under All Circumstances and Property Damage Occurring Other Than During a Riot
The development of the law concerning police officer liability for personal injuries for failure to provide sufficient police protective services has been much less complex than its property damage due to mob violence counterpart. The same analysis applies to peace officer responsibility for property damage, occurring other than during a riot, and personal injury liability by reason of the failure to enforce the law. Prior to Muskopf, public entities and employees received the benefit of the sovereign immunity doctrine which provided immunity for “governmental” activities. (See Muskopf v. Corning Hospital Dist., supra, 55 Cal.2d at p. 217.) Activities relating to law enforcement, including the failure to enforce a law or make an arrest, except for property damage occurring during a riot which was the subject of a specific statute providing for liability, were always recognized as governmental in nature. Therefore, there was no liability for nonriot related property damage and all personal injuries occasioned by the failure to enforce the law. (Tomlinson v. Pierce (1960) 178 Cal.App.2d 112, 115-116; Shipley v. City of Arroyo Grande (1949) 92 Cal.App.2d 748, 751; Campbell v. City of Santa Monica (1942) 51 Cal.App.2d 626, 629; see Rubinow v. County of San Bernardino (1959) 169 Cal.App.2d 67, 68-70; Study Relating to
c. The Susman Decision
The only court decision to analyze the effect of section 845 in the riot context was Susman v. City of Los Angeles (1969) 269 Cal.App.2d 803, 808-822 [75 Cal.Rptr. 240]. The Susman opinion was concurred in by Associate Justice James A. Cobey, who as a Senator was the sponsor of the Tort Claims Act of 1963. In Susman, owners of real and personal property filed suit when in August 1965 rioters destroyed their personal and real property. The third cause of action alleged that police officers of the defendant, City of Los Angeles, had failed to properly disperse and control angry crowds. The Susman court held: “A fair reading of those allegations leads to the conclusion that the core of the plaintiffs’ assertion of liability is that the City of Los Angeles failed to provide sufficient police protection service in that certain employees failed and refused to carry out the orders of their superior officers. But we are here concerned with the liability of the public entity and, as discussed with respect to the first cause of action, section 845 . . . grants a general immunity to public entities for failure to provide sufficient police protection. There is no statutory exception to the rule of immunity where the failure to provide such protection is due to the acts or omissions of subordinate employees such as are alleged in the third
At another point in the analysis of the complaint in Susman, the court referred to the second cause of action and noted: “Insofar as it is alleged in the second cause of action that the State of California and the City of Los Angeles failed to disperse the crowd which had assembled, no cause of action was stated, because, as noted in the discussion as to the first cause of action, a public entity is not liable for injury arising from a failure to provide sufficient police protection service (Gov. Code, § 845) or caused by failure to enforce any law (Gov. Code, § 818.2).” (269 Cal.App.2d at p. 812.) Further, the Susman court applied the section 845 immunity to causes of action based upon: failure to disperse an assembled angry crowd (269 Cal.App.2d at p. 811); the fact subordinate police officers would not follow their supervisors’ orders (id. at p. 813); the failure to properly utilize police intelligence officers (id. at p. 814); the neglect on the part of public officials to respond to “problems and motivations of persons” residing in the areas where riots were occurring (id. at p. 815); the fact tear gas was not properly used to disperse crowds (id. at pp. 815-816); the delay in summoning the National Guard which resulted in “inadequate police protection service” (id. at p. 816); the fact the Lieutenant Governor was out of the city when the police chief requested National Guard assistance (id. at p. 817); not securing other means of police protection once it was clear the National Guard would not be immediately available (id. at p. 820); the failure to properly plan to utilize the National Guard so that no protection was provided within the area where the plaintiffs’ property was located (id. at p. 821); and the fact the mayor left the city to go to San Francisco in order to give a speech, thereby creating a complete breakdown of communication both inside and outside the police department which resulted in damage to plaintiffs. (Id. at p. 822.) Of special consequence, the Susman court noted that the failure to place
One final note is in order concerning Susman. While discussing the fifth cause of action which related to the failure of city officials to respond to complaints about police misconduct which thereby caused the riot, the Court of Appeal held that plaintiffs could not recover against the city pursuant to the section 845 immunity from money damages. The Susman court noted, as has been previously adverted to in this opinion, the relationship between the adoption of section 845 and the repeal of former section 50140 et seq. The court noted: “In the same section [Van Alstyne, Cal. Government Tort Liability (Cont.Ed.Bar 1964) § 716, p. 298], Professor Van Alstyne stated: ‘In keeping with this immunity, the 1963 [L]egislature also repealed concurrently the former statutory liability of cities and counties for property damage caused by mob or riot. (See former . . . §§ 50140-50145, repealed by Stats. 1963, ch. 1681, § 17, p. 3286) . . . .‘” (Id. at p. 815, fn. 7.) Susman is the only case to have interpreted the section 845 immunity from paying money damages in the context of a riot and it has not since then been the subject of any criticism by California courts.
C. Application of Statutory Interpretation Principles to Section 845
Applying the foregoing considerations to the present case, it is clear that section 845 immunity from payment of monetary damages is applicable to the allegations in the first amended complaints. First, when we turn to the words of section 845 in an effort to determine the law makers’ intent (Delaney v. Superior Court, supra, 50 Cal.3d at p. 798), the conduct alleged in the first amended complaints involves a failure to provide adequate police services. The gravamen of the first amended complaints is that plaintiffs were at the intersection and there were no police present because defendants engaged in discriminatory deployment of law enforcement officers. The first amended complaints each contain 49 references to: the failure to properly train and mobilize officers; the withdrawal of officers from minority neighborhoods; the fact officers were not deployed or redeployed; the failure to
Second, apart from the express language of the statute, when section 845 is interpreted “in the light of the statutory scheme [citation]” (Lungren v. Deukmejian, supra, 45 Cal.3d at p. 735), other provisions of the Tort Claims Act indicate a legislative intent to immunize the police from paying money damages for the failure to properly respond to a riot. As noted previously, section 845 was enacted along with section 818.2, which provided that a public entity was not liable for failure to “enforce any enactment.” Similarly, section 821 provided that a public employee was not liable for money damages as a result of her or his “failure to enforce an enactment.” Further, sections 845.2, 845.4, 845.6, and 845.8 established a broad set of immunities from the duty to pay damages protecting both police agencies and their employees under varying circumstances from mistreatment of prisoners to the escape of a person in custody. Finally, section 846 provided that neither a public entity nor a public employee was liable for the failure to have made an arrest. When the other provisions of law adopted concurrently with section 845 are considered, the failure to have provided police services in the intersection on the evening of April 29, 1992, was subject to the immunity from the obligation to pay monetary damages for failure to provide adequate law enforcement protection.
Third, when we review the “legislative intent apparent in the [statute]” (Lungren v. Deukmejian, supra, 45 Cal.3d at p. 735), its application to the present case is apparent. At the time of the 1957 resolution authorizing the Law Revision Commission to commence a study of sovereign immunity and later when the 1961 Muskopf opinion was filed, the law was unmistakable: public entities were liable for property damage arising during a riot. However, the Legislature made it abundantly clear that the rule providing for
D. Other Decisional Authority Construing Section 845
Our interpretation of section 845 is consistent with other applications of the statutory immunity which precludes recovery of money damages in the present case. In Lopez v. Southern Cal. Rapid Transit Dist., supra, 40 Cal.3d at page 792, the Supreme Court noted that the section 845 immunity applied to negligence “in failing to provide police personnel or armed guards on board its buses” but not to negligent acts by a bus driver. In Peterson v. San Francisco Community College Dist. (1984) 36 Cal.3d 799, 814 [205 Cal.Rptr. 842, 685 P.2d 1193], the plaintiff alleged a failure on the part of a community college district “‘to employ adequate police personnel to patrol the parking lot and stairway . . .‘” where a sexual assault occurred. The California Supreme Court held, citing section 845, “As a public entity the district may not, therefore, be held liable in this case for any failure to provide adequate police protection.” (36 Cal.3d at p. 815, italics added; accord, Rodriguez v. Inglewood Unified School Dist. (1986) 186 Cal.App.3d 707, 717 [230 Cal.Rptr. 823].) In Brownell v. Los Angeles Unified School Dist. (1992) 4 Cal.App.4th 787, 791-792 [5 Cal.Rptr.2d 756], a student was standing in front of a high school where he was shot by a gang member. The neighborhood was heavily impacted with gang presence. Citing section 845, this court held: “We note that [the school district] is statutorily immune for any failure to provide police protection.” (4 Cal.App.4th at p. 796, fn. 4.)
We recognize that some courts have held that the individual negligence of on-scene officers in performing law enforcement functions such as moving a police cruiser or laying out a warning flare pattern are outside the scope of the section 845 immunity from money damages. (Mann v. State of California (1977) 70 Cal.App.3d 773, 777-781 [139 Cal.Rptr. 82].) The present case is far different than the scenario described in Mann. Defendants in the present case are senior officials in the police department. They are alleged to have made unlawfully discriminatory policy decisions as to the allocation of police resources in the second largest city in the country in the midst of a riot. That is the kind of political decision by policymaking officials section 845 was designed to cover. (Cf. Wallace v. City of Los Angeles (1993) 12 Cal.App.4th 1385, 1402 [16 Cal.Rptr.2d 113].) Section 845 applies to “‘political decisions which are involved in . . . deploying a police force.‘” (Lopez v. Southern Cal. Rapid Transit Dist., supra, 40 Cal.3d at p. 792.)
Section 845 is an absolute immunity from the duty to pay monetary damages when by its terms it applies to a discretionary policy determination concerning police deployment. Absolute immunities apply to both ministerial and discretionary acts. (Kisbey v. State of California (1984) 36 Cal.3d 415, 418-419 [204 Cal.Rptr. 428, 682 P.2d 1093]; County of Sacramento v. Superior Court (1972) 8 Cal.3d 479, 481-484 [105 Cal.Rptr. 374, 503 P.2d 1382].) Absolute immunity from the duty to pay tort damages has been recognized in the following situations: failure of the police to properly detain a motorist who escapes and thereafter causes injury (Kisbey v. State of California, supra, 36 Cal.3d at pp. 417-419 [
The present case involves injuries arising from the “failure to provide sufficient police protection services.” (
E. The Effect of the Unruh Civil Rights Act on the Section 845 Immunity From Money Damages
1. Introduction
Plaintiffs argue that the section 845 immunity from paying money damages does not apply to their Unruh Civil Rights Act claims. They contend that even if defendants would be immune from the payment of monetary damages for failure to provide sufficient police protection, the Unruh Civil Rights Act supersedes the statutory immunity. We reject this contention for two reasons. First, the immunity is a jurisdictional bar to pursuing any claim for money damages against public employees. Second, there is no evidence that the Legislature ever intended before or after Muskopf to obviate the immunity for a public employee failing to enforce the law or to provide adequate police protection in terms of deployment of officers in a riot situation and therefore vest California courts with jurisdiction to hear such claims for monetary relief.
Both before and after Muskopf, governmental immunities from claims seeking monetary relief have been interpreted by the Supreme Court and the Courts of Appeal to be jurisdictional in nature. Prior to Muskopf, the California Supreme Court held that sovereign immunity was a jurisdictional bar to suit. (Yarrow v. State of California (1960) 53 Cal.2d 427, 433, fn. 4 [2 Cal.Rptr. 137, 348 P.2d 687] [negligent vehicle operation not subject to sovereign immunity because of specific statutory enactment]; Harden v. Superior Court (1955) 44 Cal.2d 630, 637 [284 P.2d 9] [no statute authorizes eminent domain powers outside city limits]; People v. Superior Court (1947) 29 Cal.2d 754, 756 [178 P.2d 1, 40 A.L.R.2d 919] [“[t]he defense of sovereign immunity from suit presents a jurisdictional question . . . .“].) After Muskopf and the adoption of the Tort Claims Act, the Supreme Court reached the same conclusion. (E. L. White, Inc. v. City of Huntington Beach (1978) 21 Cal.3d 497, 510-512, fn. 10 [146 Cal.Rptr. 614, 579 P.2d 505] [
3. Absence of Unruh Civil Rights Act Intent to Override Section 845 Immunity From the Payment of Money Damages
Normally, under the Tort Claims Act, immunities from the obligation to provide monetary compensation supersede statutory liability. It is generally recognized that a statutory governmental immunity overrides a statute imposing liability. (
The issue as to whether the section 845 immunity from the duty to pay monetary damages is applicable to an Unruh Civil Rights Act claim is one of legislative intent. First, courts which have considered the effect of Tort Claims Act immunity on legislatively adopted statutory causes of action have always characterized the question as one of legislative intent. The issue has in the past been presented as one of whether the Legislature intended the government immunity to not be subject to another statute providing for a
Similarly, in connection with the effect of other statutes on the Unruh Civil Rights Act, our Supreme Court has premised its conclusions on legislative intent analysis. In Schmidt v. Superior Court (1989) 48 Cal.3d 370, 383 [256 Cal.Rptr. 750, 769 P.2d 932], an opinion authored by Associate Justice Arguelles, our Supreme Court held that the Legislature, in enacting the Unruh Civil Rights Act, did not intend to overrule the provisions of
Pursuant to the reasoning of the foregoing authority, we have carefully reviewed extensive legislative history materials for
Further, there is no evidence that the Legislature in originally enacting
In summary, the section 845 immunity from possible damage liability is jurisdictional. Normally, governmental immunities apply to statutes outside the Tort Claims Act which provide for liability. Further, we have read 117 legislative committee and caucus reports prepared since 1963 relating to
4. The Application of Section 845 Does Not Violate Plaintiffs’ Equal Protection Rights
Plaintiffs contend that even if section 845 may be statutorily applicable to their Unruh Civil Rights Act claims, it is violative of their
Moreover, we have been presented no evidence section 845 is a statute which is neutral in its wording but “grossly discriminatory in its operation” which would give rise to heightened equal protection analysis. (E.g., American Motorist Ins. Co. v. Starnes (1976) 425 U.S. 637, 645 [48 L.Ed.2d 263, 271, 96 S.Ct. 1800]; Williams v. Illinois (1970) 399 U.S. 235, 242 [26 L.Ed.2d 586, 598-594, 90 S.Ct. 2018].) Therefore, we must apply the rational basis equal protection test articulated by the United States Supreme Court in G.D. Searle & Co. v. Cohn (1982) 455 U.S. 404, 408 [71 L.Ed.2d 250, 255-256, 102 S.Ct. 1137], which states: “In the absence of a classification that is inherently invidious or that impinges upon fundamental rights, a state statute is to be upheld against equal protection attack if it is rationally related to the achievement of legitimate governmental ends.” (Accord, Whitfield v. Roth (1974) 10 Cal.3d 874, 889-890 [112 Cal.Rptr. 540, 519 P.2d 588]; Bonds v. State of California ex rel. Cal. Highway Patrol (1982) 138 Cal.App.3d 314, 322 [187 Cal.Rptr. 792]; Stanley v. City and County of San Francisco (1975) 48 Cal.App.3d 575, 580-582 [121 Cal.Rptr. 842].) The United States Supreme Court has repeatedly applied the rational basis test to statutes affecting the right to participate in civil litigation. (G.D. Searle & Co. v. Cohn, supra, 455 U.S. at pp. 408-412 [statute of limitation tolling provision did not involve a fundamental right and was not subject to heightened equal protection analysis]; Ortwein v. Schwab (1973) 410 U.S 656, 660 [35 L.Ed.2d 572, 576, 93 S.Ct. 1172] [filing fee requirement for appeal which discriminated against the indigent subject to rational justification standard of equal protection review]; United States v. Kras (1973) 409 U.S. 434, 445 [34 L.Ed.2d 626, 635-639, 98 S.Ct. 631] [indigent‘s ability to secure discharge from bankruptcy implicated no “fundamental interest“]; Lindsey v. Normet (1972) 405 U.S. 56, 69-79 [31 L.Ed.2d 36, 48-54, 92 S.Ct. 862] [neutrally drawn Oregon unlawful detainer statute was subject to rational basis test and did not violate equal protection rights because it required prompt trial and narrowly limited the available defenses; although double bond requirement in the event of an appeal unlawfully discriminated against indigents].) Further, the United States Supreme Court has noted that a state does not violate Fourteenth Amendment due process rights by creating an absolute immunity in tort litigation. (Martinez v. California (1980) 444 U.S. 277, 280-283 [62 L.Ed.2d 481, 486-488, 100 S.Ct. 553] [section 845.8, subdivision (a) immunity for paroling a California prisoner did not violate due process]; accord, Logan v. Zimmerman Brush Co. (1982) 455 U.S. 422, 433 [71 L.Ed.2d 265, 276, 102 S.Ct. 1148].) Moreover, the United States Supreme Court has held that the denial of judicial relief is insufficient to transform a private deprivation of property into state action for Fourteenth Amendment purposes. (Flagg Bros., Inc. v. Brooks (1978) 436 U.S. 149, 165 [56 L.Ed.2d 185, 199, 98 S.Ct. 1729].)
We now turn to the question of whether section 845 violates the equal protection clause and the related provisions of the state Constitution because it is not supported by a rational basis. Obviously, section 845 meets the constitutional test. It is a neutrally drawn statute which has no race or nationality based distinctions. Further, the Law Revision Commission and the Legislature could legitimately conclude, as they did that: “public officials charged with [the law enforcement] function will remain politically responsible only if the desirability of . . . enforcing particular laws is not subject to court review through the device of deciding tort actions“; public “officials must be free to determine these questions without fear of liability either for themselves . . . if they are to be politically responsible for these decisions.“; the “remedy for officials . . . who do not adequately enforce existing law . . . is to replace them with other officials“; to hold otherwise would create “potential governmental liability for all . . . crimes“; and the “better public policy [is] to leave the injured person to his [or her] remedy against the person actually causing the injury than it is to impose an additional liability on the government . . . .” (Recommendation Relating to Sovereign Immunity, No. 1, Tort Liability of Public Entities and Public Employees (Jan. 1963) 4 Cal. Law Revision Com. Rep. (1963) pp. 817-818.) Further, the Legislature could reasonably conclude that decisions in a riot context concerning the level of police protection to be provided “are particularly difficult to make in the face of an unexpected public calamity.”
F. Plaintiffs Have no Right to Sue for Damages Under the Equal Protection Provisions of the California Constitution
Plaintiffs argue that the section 845 immunity is inapplicable because, as a statute, it cannot contravene or otherwise limit their state constitutional equal protection rights to recover damages for personal injuries. They reason there is a right, apart from statute, to sue for personal injury damages under the equal protection provisions of article I, section 7, subdivision (a) of the California Constitution8 which provides in pertinent part: “A person may not be . . . denied equal protection of the laws. . . .” However, we determine plaintiffs may not sue for personal injury damages under article I, section 7, subdivision (a) for a violation of their equal protection rights.9
The California Supreme Court has permitted the imposition of damages for a violation of a provision of the California Constitution when the voters
Applying this well-established rule of law articulated by the California Supreme Court, we conclude there is no evidence of any intent on the part of the voters to permit the recovery of personal injury damages as a result of a violation of the equal protection provisions of the California Constitution. Two lines of cases explain how the California Supreme Court has determined that a constitutional provision gives rise to a right to sue for
In 1849, the constitutional convention first proposed article I, section 11 of the Constitution of 1849 which stated, “All laws of a general nature shall have a uniform operation.” California courts have construed this language to provide for equal protection rights under the state Constitution. (See County of L.A. v. Southern Cal. Tel. Co. (1948) 32 Cal.2d 378, 388-389 [196 P.2d 773]; Builders’ Supply Depot v. O‘Connor (1907) 150 Cal. 265, 268-269 [88 P. 982]; 8 Witkin, Summary of Cal. Law (9th ed. 1988) Constitutional Law, § 603, pp. 57-58.) The constitutional convention completed its work on October 13, 1849, and set the date for the election as November 3, 1849. (Schedule appended to Cal. Const. of 1849, art. XII, § 6.) Needless to note, there was no voters’ pamphlet. However, the convention did issue a proclamation addressed “TO THE PEOPLE OF CALIFORNIA,” which discussed: the importance of the fundamental nature of the document; the preservation of liberty; the state‘s boundaries established by the convention; the manner in which the Constitution of 1849 provided for educational institutions; the diversity of the state‘s population; and the importance of voting on November 3, 1849. (Browne, Rep. on the Debates in the Convention of California
...
In 1878, the Legislature adopted a resolution to provide for a constitutional convention to “revise the Constitution of this State and to frame a new Constitution.” (Stats. 1878, ch. 490, § 1, p. 759.) The convention first met on September 28, 1878, and concluded its work on March 3, 1879. Article I, section 11, remained unchanged in the proposed 1879 Constitution. However, article I, section 21 was added which stated: “No special privileges or immunities shall ever be granted which may not be altered, revoked, or repealed by the Legislature; nor shall any citizen, or class of citizens, be granted privileges or immunities which, upon the same terms, shall not be granted to all citizens.” (
In 1974, Proposition 7 on the November 5, 1974, ballot presented to the voters for the third time in our state‘s history an opportunity to adopt a provision providing for equal protection of the laws. Article I, section 11 of the Constitution of 1879 was moved to article IV, section 16. In its place, article I, section 7, subdivision (a) was inserted which states, as it does today: “A person may not be deprived of . . . equal protection of the laws . . . .” The “Analysis by Legislative Analyst” in the voter pamphlet indicated Proposition 7: “[P]uts into the Constitution some rights which now exist in the federal Constitution. . . .” (Ballot Pamp., Proposed Amends. to
However, on the same page of the voters’ pamphlet, the Legislative Analyst‘s analysis did refer to the changes in the constitutional provision concerning eminent domain, as follows in pertinent part: “Revision of Eminent Domain Procedure. If a state or local government takes real property for public use, the owner of the property has a right to be compensated. If the owner of the property and the government disagree over the proper amount of compensation, the dispute is settled by a trial. [¶] Presently, the government may take possession of the property before the trial takes place by depositing money with the court as security for payment. The court decides how much the security deposit must be. This procedure is called ‘immediate possession.‘” (Ballot Pamp. Proposed Amends., supra, at p. 26.) As can be noted, in connection with the revisions in the eminent domain procedure, there was a specific reference to the right to compensation. As indicated earlier, no such reference is made in connection with the equal protection provision which is discussed on the same page of the voter pamphlet. Moreover, the ballot pamphlet specifically states as to Proposition 7, “Financial impact: No increase in costs.” (Ibid.) It is noteworthy that at the time of the voter adoption of Proposition 7, no California appellate court opinion had held there was a right to sue for damages resulting from a violation of the equal protection provisions of the state Constitution. Finally, like the Legislative Analyst‘s analysis, nothing in the arguments for and against Proposition 7 contained in the voter pamphlet indicated there would be a right to sue for personal injury damages as a result of a violation of the right of equal protection of the laws under the state Constitution. (Ballot Pamp. Proposed Amends., supra, at pp. 28-29.)
Accordingly, we are confronted with the following facts. No provision of the 1849, 1879, and 1974 versions of the Declaration of Rights or related provisions in the 1879 document by their very terms granted a right to seek personal injury damages for an equal protection violation under the terms of the state Constitution. This is in contrast to article I, section 14 of the Constitution of 1879 and article I, section 19 of the present Constitution which makes specific reference to compensation. Further, nothing in the 1849 and 1878 proclamations by the constitutional conventions refers to a
The petition for writ of mandate is granted. The respondent court is directed to set aside its order of March 14, 1994, overruling the demurrers as to the fifth and sixth causes of action and to enter a new order sustaining the demurrers to the fifth and sixth causes of action of all three first amended complaints without leave to amend. All parties are to bear their own costs in connection with these extraordinary writ proceedings.
Armstrong, J., concurred.
GRIGNON, J., Dissenting.—When one reads the briefs of the parties in this case, one is immediately struck by the impression that the parties are not litigating the same case. The parties characterize the factual allegations of the complaint in disparate fashion. Clearly, the characterization controls the outcome.
Defendants characterize this case as a simple failure to provide police protection during the course of a riot, which allegedly resulted in injuries to plaintiffs. Defendants assert that they owe no duty to plaintiffs because of the absence of a “special relationship.” Defendants further assert they are statutorily immune from liability under the applicable governmental immunity statutes. The majority adopts defendants’ characterization of the complaint‘s factual allegations.
Plaintiffs characterize this case as an intentional violation of their state constitutional and statutory civil rights to be free from racial and ethnic discrimination. Plaintiffs assert that a duty to refrain from racial and ethnic discrimination arises out of the state Constitution and state civil rights acts. Plaintiffs further assert public entities and employees are not immune from liability for such intentional racial and ethnic discrimination. In my view, this is the correct characterization of the complaint‘s factual allegations.
This litigation is at the pleading stage; in ruling on a demurrer, the allegations of the complaint are deemed to be true, whatever the true facts may be. Although ultimately this case may factually be determined to be a simple failure to provide police protection, it is pleaded as a case of intentional racial and ethnic discrimination. Defendants owe a duty to plaintiffs to refrain from racial and ethnic discrimination and are not immune from liability for such discrimination. Therefore, the trial court properly overruled defendants’ demurrer to the fifth and sixth causes of action of the complaints.
Allegations of the Complaints
The fifth causes of action are entitled, “Violation of Civil Rights [Civil Code section 51.7].” They allege: defendants “deprived plaintiff[s] of equal
The sixth causes of action are entitled, “Violation of Civil Rights [Civil Code section 52].” They allege: Defendants “conspired to violate the plaintiffs’ civil rights, by agreeing to and in fact creating and implementing, the policies and conduct as hereinabove alleged. The above mentioned defendants agreed, through their actions and/or inactions and acquiescence, to use their power and position to violate the plaintiffs’ civil rights by purposely engaging in a policy of discrimination in the distribution of protective services. Defendants[,] and each of them, furthered the conspiracy in such a fashion that the conspiracy became an informal and/or formal decision, practice, or policy of the municipal defendants sued herein. Said actions as alleged above were undertaken by each of the individual named defendants in their capacities as final decision-makers pursuant to authority granted to them by the defendant City of Los Angeles and such actions represented official municipal policy and practice, entitling plaintiff[s] to damages pursuant to Section 52[, subdivision] (b) of the California Civil Code.”
Demurrer
Defendants demurred to the fifth and sixth causes of actions of the complaints on the grounds of absence of duty and immunity from liability under
Plaintiffs responded that they alleged a duty under
Duty
Before reaching the issue of governmental immunity, it must first be determined whether a public entity or employee owes a duty to a plaintiff. “Conceptually, the question of the applicability of a statutory immunity does not even arise until it is determined that a defendant otherwise owes a duty of care to the plaintiff and thus would be liable in the absence of such immunity.” (Davidson v. City of Westminster (1982) 32 Cal.3d 197, 201-202.) In California, a public entity is not liable for any claim against it except as provided by statute or required by the state or federal Constitution. (
In addition, the state Constitution may provide a cause of action against a public entity independent of any statute providing for liability. (Fenton v. Groveland Community Services Dist. (1982) 135 Cal.App.3d 797, 804.) A constitutional right contained in a self-executing provision of the state Constitution supports a cause of action for damages. (Ibid.)
From the foregoing, it is apparent that, in the absence of immunity, public entities and employees may be liable for violations of a plaintiff‘s state constitutional right to equal protection and for violations of
Immunity
Once it has been determined a public entity and its employees owe a duty to a plaintiff, it must next be determined whether the public entity and its employees are immune from liability. The existence of a duty does not
In this case, defendants assert they are immune from liability under
Immunity statutes have wide, but not universal, applicability. Governmental immunity statutes may not be applicable when they conflict with other state statutory provisions. (Duarte v. City of San Jose (1980) 100 Cal.App.3d 648, 656.) Where a governmental immunity conflicts with a liability imposed by a statute outside the Government Tort Claims Act (
There can be no real question of the inapplicability of the police protection governmental immunity to violations of the state constitutional right to equal protection by a public entity and its employees. The state constitutional right to equal protection is self-executing, permitting a cause of action for damages, and state immunity statutes cannot defeat the liability of a public entity for violations of state constitutional rights.
The question of whether the police protection governmental immunity defeats causes of action based on statutory violations of
I would deny the petition for a writ of mandate.
A petition for a rehearing was denied March 6, 1995, and the petition of real parties in interest for review by the Supreme Court was denied May 18, 1995. Mosk, J., and Kennard J., were of the opinion that the petition should be granted.
Notes
However, if the committee reports prepared in the constitutional drafting process may be relied upon in determining whether the equal protection provisions of our Constitution create a right to personal injury damages, we find no evidence of such an intent to provide for such relief either by the constitutional conventions or the Constitution Revision Commission. As to the 1849 convention which proposed the language concerning uniform operation of general laws (