Lead Opinion
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,
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 title 42 United States Code sections 1983, 1985(3), and 1986 for violations of federal civil rights. Although the facts underlying the federal civil rights claims are pertinent to the present case, which involves allegations of violations of state law, no issue has been raised either in the trial court or in this proceeding concerning the sufficiency of the allegations in the first amended complaints as to the first four causes of action. Those causes of action remain for resolution via: a trial; summary judgment motion; judgment on the pleadings motion; other appropriate procedural device; or settlement.
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.”
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. 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) [Civil Code Section 51.7].” The fifth cause of action alleged plaintiffs were deprived of equal protection of the laws by: “[the act of] withdrawing protective services and failing to deploy and redeploy police officers”; the act of “simultaneously aggressively deploying police resources in communities inhabited by predominately Anglo Citizens”; thereby depriving persons
7. Sixth Cause of Action
The sixth cause of action was entitled: “(Violation of Civil Rights) [Civil Code Section 52].” The sixth cause of action adopted all of the other allegations of the first amended complaints. It alleged all defendants conspired with one another to implement the aforementioned unlawful discriminatory policies. Defendants violated plaintiffs’ civil rights by “purposely engaging in a policy of discrimination in the distribution of protective services.” Plaintiffs sought monetary relief only.
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)
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. Government Code
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)
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)
In 1961, the California Supreme Court abrogated the doctrine of sovereign immunity in Muskopf v. Corning Hosp. Dist. (1961)
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,
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,
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)
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).” (
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 [Legislature 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,
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,
Third, when we review the “legislative intent apparent in the [statute]” (Lungren v. Deukmejian, supra,
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,
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)
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)
The present case involves injuries arising from the “failure to provide sufficient police protection services.” (§ 845.) Plaintiffs argue this is a discrimination case outside the ambit of section 845. However, as noted previously, the gravamen of the first amended complaints is that the police were not present at the intersection. The only reason plaintiffs were injured was that no police were present. The unlawful motive for the failure to deploy an adequate number of officers, intentional discrimination, does not change the injury causing event, a “failure to provide sufficient police protection services.” (§ 845.) Given the fact governmental tort immunities from damages apply to intentional torts (see page 510, post.) defendants’ alleged unlawful discriminatory motive does not take plaintiffs’ state law claims outside the scope of section 845.
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)
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. (§ 815, subd. (b).) The Law Revision Commission Comment to section 815 states in pertinent part: “In the following portions of this division, there also are many sections granting public entities and public employees broad immunities from liability. In general, the statutes imposing liability are cumulative in nature, i.e., if liability cannot be established under the requirements of one section, liability will nevertheless exist if liability can be established under the provisions of another section. On the other hand, under subdivision (b) of this section, the immunity provisions will as a general rule prevail over all sections imposing liability.” (4 Cal. Law Revision Com. Rep. (Jan. 1963) pp. 837-838.) Other commentators are in agreement that the Tort Claims Act immunities apply to liabilities established by other statutes. (Cal. Government Tort Liability Practice (Cont.Ed.Bar 1992) § 2.15, pp. 83-84; 35 Cal.Jur.3d, Government Tort Liability, § 3, pp. 15-16; Van Alstyne, Cal. Government Tort Liability Practice (Cont.Ed.Bar 1980) § 2.28, pp. 70-71.) Stated differently, the general rule is that the governmental immunity will override a liability created by a statute outside of the Tort Claims Act. Further, unless an immunity otherwise provides, the governmental tort immunities apply to intentional tortious conduct. (Sullivan v. County of Los Angeles (1974)
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)
Pursuant to the reasoning of the foregoing authority, we have carefully reviewed extensive legislative history materials for Civil Code sections 51.7 and 52 which serve as the basis of plaintiffs’ fifth and sixth causes of action respectively in their first amended complaints. There is no indication either in the express wording of those statutes or their legislative history that the Legislature ever contemplated the effect of the section 845 immunity which excuses the payment of money damages for the failure to provide adequate police services. Civil Code section 51.7 was initially adopted in 1976. (Stats. 1976, ch. 1293, § 2, p. 5778.) Also, nothing in the language or legislative history of the 1976 enactment or its 1987, 1985, 1984, amendments suggests the Tort Claims Act immunities are to be inapplicable to a cause of action premised upon Civil Code section 51.7. (Stats. 1987, ch. 1277, § 2, p. 4544; Stats. 1985, ch. 497, § 1, p. 1850; Stats. 1984, ch. 1437, § 1, p. 5037.)
Further, there is no evidence that the Legislature in originally enacting Civil Code section 52 or amending it repeatedly ever sought to address the question of public entity and employee immunity from the duty to pay money claims arising from the failure to enforce the law or provide adequate police protection. Prior to Muskopf s rejection of the blanket rule of sovereign immunity, there was no liability for failing to enforce the law or provide adequate police protection, other than under the circumstances specified in former section 50140 et seq. which involved public entity responsibility for property damage arising from a riot. Rather, as explained earlier, the failure to enforce the law or make an arrest was the exercise of a governmental power, which prior to Muskopf was subject to the sovereign immunity doctrine. (Tomlinson v. Pierce, supra, 178 Cal.App.2d at pp. 115-116; Shipley v. City of Arroyo Grande, supra,
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 Civil Code sections 51.7 and 52. Nothing in those 117 reports suggests that any damage immunity in the Tort Claims Act is inapplicable to an Unruh Civil Rights Act claim. More specifically, section 845 is never alluded to, directly or indirectly in those reports. Plaintiffs have failed to demonstrate that Civil Code sections 51.7 and 52 were intended to override the immunity and vest courts with jurisdiction to hear claims for money damages involving the failure to “provide sufficient police protection service.” (§ 845.)
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)
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 Constitution
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
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)
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.” (Cal. Const, of 1879, art. I, §21.) Also added was Article IV, section 25 which provided in pertinent part: “The Legislature shall not pass local or special laws in any of the following enumerated cases . . . [5C Nineteenth — Granting to any corporation, association, or individual any special or exclusive right, privilege, or immunity . . . . [Ü Thirty-third — In all other cases where a general law can be made applicable.” (Cal. Const, of 1879, art. IV, § 25.) Article I, sections 11 and 21 and article IV, section 25 of the Constitution of 1879 have been construed by the California Supreme Court to be the functional equivalent of an equal protection provision. (County of L.A. v. Southern Cal. Tel. Co., supra, 32 Cal.2d at pp. 388-389.) As in 1849, the 1879 convention issued a proclamation, “To the People of the State of California.” It discussed the various provisions of the proposed 1879 Constitution including: the Declaration of Rights; the right to vote; the legislative and judicial departments; education; state prisons; the organization of local government; corporations; tax matters; water rights questions; harbors; the mode of amending the new Constitution; the manner in which the Chinese would be mistreated; and several other subjects. (Constitutional Convention (Mar. 3, 1879) Daily Journal, pp. 9-17.) In connection with the Declaration of Rights, where article I, sections 11 and 21 were located, the proclamation directed at the voters did not directly or indirectly indicate that a violation of those constitutional provisions would give rise to a right to personal injury damages.
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 Cal. Const, with arguments to voters, Gen. Elec. (Nov. 5, 1974) p. 26.) Further, the Legislative Analyst’s analysis stated: “Federal Rights in State
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. [*]Q 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.
Notes
All future references to the department are to the Los Angeles Police Department.
Civil Code section 51.7 provides: “(a) All persons within the jurisdiction of this state have the right to be free from any violence, or intimidation by threat of violence, committed against their persons or property because of their race, color, religion, ancestry, national origin, political affiliation, sex, sexual orientation, age, disability, or position in a labor dispute, or because another person perceives them to have one or more of those characteristics. The identification in this subdivision of particular bases of discrimination is illustrative rather than restrictive. [*j0 This section does not apply to statements concerning positions in a labor dispute which are made during otherwise lawful labor picketing. [IQ (b) As used in this section, ‘sexual orientation’ means heterosexuality, homosexuality, or bisexuality.” Civil Code section 52 states: “(a) Whoever denies, aids or incites a denial, or makes any discrimination or distinction contrary to Section 51 or 51.5, is liable for each and every offense for the actual damages, and any amount that may be determined by a jury, or a court sitting without a jury, up to a maximum of three times the amount of actual damage but in no case less than one thousand dollars ($1,000), and any attorney’s fees that may be determined by the court in addition thereto, suffered by any person denied the rights provided in Section 51 or 51.5. [¶] (b) Whoever denies the right provided in Section 51.7, or aids, incites, or conspires in that denial, is liable for each and every offense for the actual damages suffered by any person denied that right and, in addition, the following: [1 (1) An amount to be determined by a jury, or a court sitting without a jury, for exemplary damages. [QQ (2) A civil penalty for twenty-five thousand dollars ($25,000) to be awarded to the person denied the right provided by Section 51.7. [QQ (3) Attorney’s fees as may be determined by the court. FJQ (c) Whenever there is reasonable cause to believe that any person or group of persons is engaged in conduct of resistance to the full enjoyment of any of the rights hereby secured, and that conduct is of that nature and is intended to deny the full exercise of the rights herein described, the Attorney General, any district attorney or city attorney, or any person aggrieved by the conduct may bring a civil action in the appropriate court by filing with it a complaint. The complaint shall contain the following: [QQ (1) The signature of the officer, or, in his or her absence, the individual acting on behalf of the officer, or the signature of the person aggrieved. [QQ (2) The facts pertaining to the conduct. [1 (3) A request for preventive relief, including an application for a permanent or temporary injunction, restraining order, or other order against the person or persons responsible for the conduct, as the complainant deems necessary to insure the full enjoyment of the rights herein described. [DQ (d) Whenever an action has been commenced in any court seeking relief from the denial of equal protection of the laws under the Fourteenth Amendment to the Constitution of the United States on account of race, color, religion, sex, national origin, or disability, the Attorney General or any district attorney or city attorney for or in the name of the people of the State of California may intervene in the action upon timely application if the Attorney General or any district attorney or city attorney certifies that the case is of general public importance. In that action the people of the State of California shall be entitled to the same relief as if it had instituted the action. [1 (e) Actions under this section shall be independent of any other remedies or procedures that may be available to an aggrieved party. [QQ (f) Any person claiming to be aggrieved by an alleged unlawful practice in violation of Section 51 or 51.7 may also file a verified complaint with the Department of Fair Employment and Housing pursuant to Section 12948 of the Government Code. FJD (g) Nothing in this section shall be construed to require any construction, alteration, repair, structural or otherwise, or modification of any sort whatsoever to any new or existing establishment, facility, building, improvement, or any other structure, or to augment, restrict, or alter in any way the authority of the State Architect to require construction, alteration, repair, or modification that the State Architect otherwise possesses
In reciting the amended complaints’ factual allegations, we are required to accept them as true solely for purposes of this opinion. Our recitation of plaintiffs’ factual allegations may not be construed as anything else.
All future references to the intersection of Normandie and Florence Avenues will be to the “intersection.”
Unless otherwise indicated, all future statutory references are to the Government Code.
Plaintiffs’ return to our order to show cause also emphasized the basis of their Unruh Civil Rights Act claims was the failure to “provide sufficient police protection service.” (§ 845.) The return argued defendants’ liability was premised on a purposeful implementation of a discriminatory police policy “pursuant to which they withdrew and withheld police protective services from minority neighborhoods.” At another point, plaintiffs noted their theory of Unruh Act liability involved “defendants’ positive misconduct in deploying their forces based upon a racially discriminatory criteria.” Further, the return argued the first amended complaints’ allegations at the demurrer stage assumed the following to be true: pursuant to a policy of discrimination, defendants “withdrew and withheld police protective services”; the intent in withdrawing the officers was to deprive “persons residing and present in these communities with police services . . .”; officers were “aggressively deployed” in “majority communities”; and defendants prevented officers from being present at the intersection. These arguments all involve the failure to provide, in the words of section 845, “sufficient police protection service.” (§ 845.)
Still pending are plaintiffs’ federal civil rights causes of action. We quite obviously do not state or imply section 845 bars those claims. (Martinez v. California, supra,
Unless otherwise indicated, all future references to the Constitution are to that document in its present format. The version of that document adopted by the voters in 1849 will be referred to as the Constitution of 1849. The document adopted in 1879 shall be referred to as the Constitution of 1879.
The parties have briefed the effect of article III, section 5 on the present case. We need not address the question of whether section 845 is, as applied to plaintiffs’ equal protection claims, a constitutionally valid immunity from damages because article III, section 5 which states, “Suits may be brought against the state in such manner and in such courts as shall be directed by law” is a delegation of power to the Legislature to enact immunities such as are found in the Tort Claims Act. In other words, we do not discuss the issue as to whether, even if article I, section 7, subdivision (a) provides for a right to recover personal injury damages, the section 845 immunity would apply because article III, section 5 specifically permits legislative promulgation of immunities that apply to all suits brought against public employees, including those for tort damages brought under terms of the California Constitution. Despite its reference to suits against the “state,” article III, section 5 applies to all suits even those against local agencies and their employees. (Edgington v. County of San Diego (1981)
n the body of this opinion, we concluded that the voters did not intend to provide a right to sue for personal injury damages for an equal protection violation. The same analysis has been applied by our Supreme Court to the question of whether a right to damages arises from the enactment of a statute. For example, in Dyna-Med, Inc. v. Fair Employment & Housing Com. (1987)
In 1974, article I, section 14 of the state Constitution of 1879 was moved to article I, section 19 and it states: “Private property may be taken or damaged for public use only when just compensation, ascertained by a jury unless waived, has first been paid to, or into court for, the owner. The Legislature may provide for possession by the condemnor following commencement of eminent domain proceedings upon deposit in court and prompt release to the owner of money determined by the court to be the probable amount of just compensation.” Since the 1974 movement of the eminent domain law to article I, section 19, our Supreme Court has quite naturally continued to recognize the right to sue for damages under the state Constitution in the condemnation context and relied upon decisional authority interpreting former article I, section 14 of the California Constitution of 1879. (E.g., Locklin v. City of Lafayette (1994)
The proclamation, while referring to the Declaration of Rights, stated as follows: “The principal changes in this article are as follows: [<1 In reference to the grand jury, it is provided that offenses heretofore required to be prosecuted by indictment may be prosecuted by
The only pertinent discussion in the proclamation with respect to article IV of the Constitution of 1879 was as follows, “The power of the Legislature has been restricted in every case where it would be safe to do so, in respect to the enacting of local or special laws.” (Constitutional Convention, supra, Daily Journal at p. 10.) The remainder of the discussion of article IV involved: the expectation of reducing the costs of operating the Legislature; requiring that bills be introduced 10 days prior to the end of a session under most circumstances; qualifications of assemblypersons and senators; daily pay and mileage for legislators; the timing of vetoes by the Governor; salaries of state officers; and other matters entirely unrelated to equal protection considerations. {Id. at pp. 10-11.)
Our Supreme Court in Delaney v. Superior Court, supra,
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 (Cal. Const, of 1849, art. I, § 11), we have been unable to find any committee reports. However, there was no debate or discussion concerning the proposal to require that general laws be uniformly applied. Article I, section 11 of the 1849 Constitution was adopted without discussion. (Browne, Rep. on the Debates in the Convention of California, supra, pp. 274-289, 297.) Further, as to the convention which gave rise to the 1879 Constitution, there is no indication of an intent to provide for personal injury damages as a result of the adoption of article I, sections 11 and 21 in: the majority report of the Committee on Preamble and Bill of Rights which proposed the two sections; the minority report which contained the same language in what later would become article I, sections 11 and 21; or in the debate concerning the foregoing constitutional provisions. (I Debates and Proceedings of the Constitutional Convention of the State of California [hereafter Debates] (Oct. 24, 29, 1878) pp. 178-180, 232-234; III Debates (Feb. 20, 28, 1879) pp. 1425-1426, 1491.) The same is true as to the nineteenth and thirty-third paragraphs of article IV, section 25 of the Constitution of 1879. (I Debates (Nov. 11, 18, 1878, pp. 362-365, 450; II Debates (Dec. 21, 1878) pp. 803-806; III Debates (Feb. 5, 21, Mar. 1, 1879) pp. 1270-1271, 1441, 1497.) Finally, none of the documents prepared for the Article I Committee of the Constitution Revision Commission prior to the 1974 adoption of Proposition 7 refer to a right to sue for personal injury damages in the event of an equal protection violation. (Background Study for Article I Committee, Constitution Revision Commission (Aug. 1969) p. 16.) Our review of all available committee reports and debates since 1849 fails to reflect any intention on the part of the drafters of the
The pertinent provisions of article I, section 28, subdivision (a) stated: “The People of the State of California find and declare that the enactment of comprehensive provisions and laws ensuring a bill of rights for victims of crime, including safeguards in the criminal justice system to fully protect those rights, is a matter of grave statewide concern. [jD The rights of victims pervade the criminal justice system, encompassing not only the right of restitution from the wrongdoers for financial losses suffered as a result of criminal acts, but also the more basic expectation that persons who commit felonious acts causing injury to innocent victims will be appropriately detained in custody, tried by the courts, and sufficiently punished so that the public safety is protected and encouraged as a goal of highest importance. [H Such public safety extends to public primary, elementary, junior high, and senior high school campuses, where students and staff have the right to be safe and secure in their persons.”
Other Courts of Appeal have argued that several constitutional provisions provide a right to damages other than in the eminent domain and privacy contexts. (Fenton v. Groveland Community Services Dist. (1982)
Other state’s courts, for different reasons, have refused to hold that their state constitutional equal protection provisions provide a right to sue for damages. (Rockhouse Mountain Prop. v. Town of Conway N.H. (1986)
Dissenting Opinion
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 plaintiffs] 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 Government Code sections 821, 845 and 846. Defendants argued the police have no duty to protect a victim from the criminal acts of a third party in the absence of a “special relationship” and no “special relationship” had been alleged. Defendants also argued that, as public entities and employees, they are immune from liability for failure to provide police protection or sufficient police protection (Gov. Code, § 845), for failure to make an arrest
Plaintiffs responded that they alleged a duty under Civil Code sections 51.7 and 52 and statutory governmental immunities are inapplicable to civil rights claims. In this court, plaintiffs have expanded their contentions. They assert they have also alleged a duty under the equal protection clause of the state Constitution.
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)
Government Code section 815 provides that a public entity is not liable for injuries except as provided by statute. The phrase “as provided by statute” is to be given its broadest possible meaning. (Levine v. City of Los Angeles (1977)
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)
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 Civil Code sections 51.7 and 52. In this case, plaintiffs have sufficiently pleaded violations of these duties by defendants. Although plaintiffs have titled their causes of action statutory violations of Civil Code sections 51.7 and 52, they expressly allege deprivations of their right to equal protection of the laws, a state constitutional right. “Whether plaintiff can prove these allegations, or whether it will be difficult to prove them, are not appropriate questions for a reviewing court when ruling on a demurrer.” (Leger v. Stockton Unified School Dist., supra,
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 Government Code section 845. Government Code section 845 provides: “Neither a public entity nor a public employee is liable for failure to establish a police department or otherwise to provide police protection service or, if police protection service is provided, for failure to provide sufficient police protection service.” Government Code “section 845 was designed to protect from judicial review in tort litigation the political and budgetary decisions of policymakers, who must determine whether to provide police officers or their functional equivalents.” (Leger v. Stockton Unified School Dist., supra,
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)
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 Civil Code sections 51.7 and 52 is more difficult. I believe, however, the question must be answered in the negative. It is beyond dispute that public entities and employees are immune from suit for personal injuries or property damage incurred by third persons in the course of a riot. (Susman v. City of Los Angeles (1969)
Civil Code section 51.7 states that all individuals in the state have the right to be free from race- or ethnicity-related violence. Civil Code section 52 provides an action for damages and civil penalties against persons who deny an individual his or her right to be free from such violence. These statutory civil rights provisions serve very important public purposes reflecting established constitutional policies, which would be frustrated by the application of a general governmental immunity statute. Police officers who deliberately fail to assist victims of violent crime on the basis of race or ethnicity cannot be immune from suit. Nor can a public entity be immune from suit if it intentionally deploys police personnel in a manner motivated
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.
California governmental immunity statutes also are not applicable to federal causes of action, such as violations of the Voting Rights Act (42 U.S.C. § 1971 et seq.) and the Civil Rights Act (42 U.S.C. § 1981 et seq.). (Fenton v. Groveland Community Services Dist., supra, 135 Cal.App.3d at pp. 807-808; cf. Rossiter v. Benoit (1979)