O'TOOLE v. Superior CourtO'TOOLE v. Superior Court
Opinion
Plaintiffs
1
brought an action against the San Diego Community College District (District) and several law enforcement officers employed by the District,
2
alleging defendants violated plaintiffs’ constitutional
We conclude the trial court properly denied plaintiffs’ summary judgment motion, but should have granted defendants’ motion. The undisputed facts show defendants are entitled to statutory immunity under section 820.6, which provides a public employee is not liable for enforcing an allegedly unconstitutional enactment if the “employee acts in good faith, without malice, and under the apparent authority of [the] enactment. . . .” O’Toole’s false arrest claim is also unsupported because the undisputed facts show the officers had reasonable cause to arrest O’Toole. Further, as plaintiffs concede, their declaratory relief claim is moot because the District no longer requires an individual to obtain a permit before engaging in free speech activities on campus.
FACTUAL AND PROCEDURAL BACKGROUND
Undisputed Facts
Plaintiffs are members of Survivors of the Abortion Holocaust, a “pro-life” association. At about 11:00 a.m. on February 25, 2003, plaintiffs came to Mesa College intending to educate the public, distribute literature, and display posters relating to their opposition to abortion. Mesa College is one of three colleges within the District. None of the plaintiffs were students at the college.
Plaintiffs arrived at the campus in a vehicle driven by plaintiff Daniel McCullough. After dropping off the other plaintiffs at the campus entrance, McCullough went to park his vehicle in the campus parking lot. The group then walked to the Mesa College cafeteria. Because it was raining heavily, numerous students were gathered underneath the covered walkway near the cafeteria. Several nearby tables contained literature relating to student clubs and organizations.
Plaintiffs set up large graphic posters in front of the cafeteria, and began distributing anti-abortion literature. Many students became upset and began arguing with plaintiffs. Cafeteria workers were concerned and called the campus police. The first responding officer, Lieutenant Jack Doherty, observed that two of the plaintiffs were displaying a large poster of a bloody, dismembered fetus. One of the plaintiffs was engaged in a very loud, heated debate with one or two other persons who appeared to be students. Approximately 20 students were gathered near the plaintiffs who were displaying the poster.
Lieutenant Doherty told the group leader, O’Toole, that Mesa College required a special permit before a person could display posters and hand out literature on campus. O’Toole said he did not have a permit, and was unaware that the group needed a permit. Lieutenant Doherty responded that plaintiffs could obtain a permit at the student affairs office. Plaintiffs (except for McCullough who was still
Several other police officers arrived at the scene, including Sergeant Vasquez, Officer Olson, and Olson’s trainee, Officer Pabelico. The students complained to Sergeant Vasquez about plaintiffs’ conduct. Sergeant Vasquez believed some of the students were so upset there was a “real possibility” they might attempt to tear plaintiffs’ posters or assault one of the plaintiffs. Officers Olson and Pabelico then went to the student affairs office, where they found numerous “angry” and “upset” students.
Inside the student affairs office, Kathy Fennessy, an office staff worker, told plaintiffs they were required to complete an application for a permit and submit their literature for review, and the application could take 10 working days to process. Fennessy said the review could take a shorter time, but Mesa College rules permitted the college to take up to 10 days. Plaintiffs asserted that their rights were being violated and that they had the right to “do whatever they wanted to on a campus.” Fennessy responded that the college had the right to impose reasonable time, place, and manner restrictions on free speech rights. O’Toole took the application outside the office, and a few minutes later turned in the completed application.
Meanwhile, Officer Pabelico entered the student affairs office and asked Fennessy for an update on the permit situation. Fennessy responded that plaintiffs did not have a permit and that the permit would not issue at that time. Fennessy said plaintiffs needed the proper paperwork and advised that it would take up to 10 business days to obtain the approval. Fennessy then requested Officers Olson and Pabelico to ask plaintiffs to leave the campus.
To enforce Fennessy’s request, Officer Pabelico asked plaintiffs (except for McCullough who had not yet come on the campus) to leave the campus and referred plaintiffs to Penal Code section 626.6, which permits campus personnel to direct a nonstudent to leave the campus if it appears the individual “is committing any act likely to interfere with the peacefiil conduct of the activities of the campus” or “has entered the campus ... for the purpose of committing any such act.” (
In response, O’Toole directed the other members of his group to leave the campus, which they did. O’Toole then took his poster and written materials and walked toward the cafeteria, intending to continue his anti-abortion activities at a designated free speech area. Officers Olson and Pabelico told O’Toole to stop and that if he did not comply, the officers would arrest him under Penal Code section 148 for delaying a police officer in the performance of his duties. O’Toole did not stop. When O’Toole reached an area near the cafeteria, he held a large poster and began handing out literature. The officers believed this activity was improper because O’Toole did not have the required permit.
Officers Olson and Pabelico asked O’Toole to stop this activity several times,
Officers Pabelico and Olson then took O’Toole to the campus police station. Once there, the officers prepared a notice to appear which identified violations of Penal Code sections 148, subdivision (a)(1) and 626.6. During this time, Officer Pabelico showed O’Toole a copy of Penal Code
Officer Olson then told O’Toole he intended to release him if he was willing to cooperate. But O’Toole “unequivocally indicated he would resume displaying posters and leafleting, and would not leave campus if released.” Sergeant Yasquez directed the officers to book O’Toole into county jail. O’Toole stayed in jail for two days. No charges were filed based on the incident.
The District thereafter revised its free speech policy. The new policy eliminated the requirement that a college approve written materials before they are posted or distributed. Under the new policy, “prior permission by way of an application and permit is no longer required at Mesa College (or any other campus within the District) and there is no waiting period.” Additionally, the new policy made clear
The Complaint
Shortly after the District revised its free speech policy, plaintiffs filed a complaint against the District, Sergeant Yasquez, Officer Olson, Officer Babélico, and Officer Abutin.
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The complaint contained six causes of action. In the first cause of action, plaintiffs alleged defendants’ “enforcement of the prior notice restriction violated the California Bane Act,” which provides that a person whose exercise of constitutional rights is interfered with through “threats, intimidation, or coercion” may bring an action for injunctive relief or damages. (
The final two causes of action were brought only by plaintiff O’Toole, and concerned his claims that his arrest and imprisonment were unlawful. In the fifth cause of action, O’Toole alleged defendant officers “knew, or should have known, that they had no basis for the arrest or the imprisonment” and that they “acted without probable, or reasonable, cause to believe that O’Toole committed a crime in their presence.” In the sixth cause of action, O’Toole alleged violation of the Bane Act, based on the claimed false arrest and false imprisonment.
Summary Judgment Motions
The parties filed cross-summary judgment/summary adjudication motions.
In support of their summary judgment motion, defendants produced the declarations of the individual police officers relating the facts summarized above. Defendants also proffered the declaration of Loretta Adrian, the Mesa College Dean of Student Affairs. She said that in February 2003, it was the “policy and procedure at Mesa College to require the submission of a Special Activities Application prior to the displaying of posters or distribution of literature on campus,” and that she was the person responsible for issuing the “Special Activities Permit.” Adrian said the purpose of the permit requirement was to coordinate and manage the use of facilities for free speech and political activities, and to record the distributors’ identity and the content of the literature if “issues regarding the material arose after the fact.” Adrian said she did not “have the discretion to deny an application,” and instead her “role was entirely ministerial, i.e., to schedule activities at a time when facilities were available and manage the use of facilities.” She said she had never denied a permit application, and that applications were “granted as a matter of course.” Although the approval process could take up to 10 days, the average “turn around time was anywhere between [three and five] days.” On the day of the incident, Adrian was not in her office or available to review the application.
Defendants also presented evidence regarding the District’s March 2004 amendment to Policy No. 3925, which deleted the permit requirement, directed each college to expand free speech areas, and made clear that the colleges were prohibited from excluding speakers or written materials based on the content of the speech.
Based on this evidence, defendants argued plaintiffs could not recover on their claims because the officers had a valid basis for enforcing the permit requirement; the permit requirement was a constitutional time, place, and manner restriction; defendants did not have a mandatory duty to permit plaintiffs to protest in violation of the permit requirement; the officers did not coerce, threaten, or intimidate plaintiffs; there was a sufficient disturbance caused by plaintiffs’ activity to justify the exclusion of plaintiffs from campus under Penal Code
In opposition to defendants’ summary judgment motion and in support of their own motion, plaintiffs presented various items of evidence, including their own declarations, defendant officers’ deposition testimony, copies of the anti-abortion materials, and a DVD recording of the incident. Plaintiffs agreed the material facts were undisputed, but argued the District’s permit requirement was “an unconstitutional prior restraint of speech,” and that defendants’ enforcement of the permit was based on the content of the speech and the viewpoint of the speakers, and thus constituted an unlawful “heckler’s veto.” Plaintiffs also argued that defendants could not prevail on their immunity defense because it was undisputed defendants had knowledge of Penal Code
In a tentative ruling, the court declined to grant either summary judgment motion, except for summary adjudication in defendants’ favor on the declaratory relief claim. With respect to the declaratory relief claim, the court stated “[i]t is undisputed that the District has revised its permit policy and there is no[] indication that the District will repeat the unconstitutional conduct. Therefore, this claim has become moot . . . .” But the court rejected
defendants’ arguments on the remaining claims.
At the hearing, plaintiffs’ counsel agreed the declaratory relief cause of action “is out. That has been resolved.” Plaintiffs’ counsel also stated that, contrary to the court’s statements in the tentative ruling, it was plaintiffs’ position that the District and Mesa College had a policy requiring a permit before a person could exercise his or her free speech rights to distribute literature, and plaintiffs have “stipulated” to this fact. But plaintiffs’ counsel argued the existence of this policy should not change the court’s ruling because “the officers in the District cannot enforce ... an unconstitutional policy.” Plaintiffs’ counsel also stated plaintiffs were willing to limit their claim to statutory damages under the Bane Act, which they said totaled $25,000 for each plaintiff.
After considering the arguments, the court issued a final order, denying both summary judgment motions. The court stated the District’s prior permit policy was “clearly unconstitutional” and there are triable issues of fact as to whether the campus police officers should have been aware that the permit requirement was unconstitutional. The court also rejected plaintiffs’ argument that the court could decide the statutory damages question as a matter of law, stating plaintiffs’ notice of motion did not seek a judgment limited to only statutory penalties. The court concluded that because “this is a close decision on an issue with important constitutional ramifications . . . , the court is willing to stay this case in order to permit either party to initiate writ proceedings in the Appellate Court. . . .” Taking this suggestion, each set of parties petitioned for writ of mandate challenging the court’s denial of its motion. Defendants contended the court erred in denying their summary judgment motion, whereas plaintiffs challenged only the court’s denial of summary adjudication on their Bane Act claim.
DISCUSSION
I. Summary Judgment Review Standards
A
“party moving for summary judgment bears the burden of persuasion that there is no triable issue of material fact and that he is entitled to judgment as a matter of law.”
(Aguilar v. Atlantic Richfield Co.
(2001)
On appeal from a summary judgment, we review the record de novo, considering all of the evidence presented by the parties except evidence properly excluded by the trial court.
(Merrill
v.
Navegar, Inc.
(2001)
Under these principles, we analyze the summary judgment record to determine whether plaintiffs or defendants met their burden to present evidence showing they were' entitled to judgment as a matter of law on any cause of action, and if so, whether the opposing parties met their burden to show a triable issue of fact on the claim. As we shall explain, we conclude defendants met their burden on each of plaintiffs’ claims and plaintiffs did not raise triable issues of fact in response. Thus, defendants are entitled to summary judgment as a matter of law. This conclusion necessarily means the trial court properly denied plaintiffs’ summary judgment/summary adjudication motion.
II. Bane Act Claim for Enforcement of Permit Requirement
In their first cause of action, plaintiffs alleged defendant police officers violated the Bane Act by enforcing the District’s permit requirement. The Bane Act provides a civil remedy for persons whose exercise of constitutional rights has been interfered with by “threats, intimidation, or coercion.” (
In moving for summary judgment, defendants argued they could not be held liable under the Bane Act because their conduct did not violate plaintiffs’ constitutional
In this writ proceeding, defendants reassert each of these arguments. Because the undisputed facts show defendants are immune from suit on this claim, we do not resolve the preliminary issues pertaining to liability under the Bane Act. We assume for purposes of this opinion that the officers’ conduct in demanding that plaintiffs leave campus and arresting O’Toole after he refused to discontinue his activities constituted “coercion” within the meaning of Civil Code
We further assume that the permit policy in effect when the incident occurred imposed an unconstitutional restraint on plaintiffs’ free speech rights. A permit requirement for persons seeking to engage in free speech activities is presumed to be unconstitutional.
(Grossman v. City of Portland
(9th Cir. 1994)
However, the fact that the District’s permit requirement may not have met constitutional standards does not necessarily preclude applicable governmental immunities. Defendants moved for summary judgment based on section 820.6, which provides, “[i]f a public employee acts in good faith, without malice, and under the apparent authority of an enactment that is unconstitutional, invalid or inapplicable, he is not liable for any injury caused thereby except to the extent that he would have been liable had the enactment been constitutional, valid and applicable.” Under this code section, a police officer is not civilly liable for enforcing an unconstitutional statute or regulation, if the enforcement is in good faith and without malice. (See
Lockyer v. City and County of San Francisco
(2004)
In their opposition papers, plaintiffs did not assert any argument with respect to the applicability of the section 820.6 immunity. Although we could have considered this a concession on the section 820.6 immunity defense, we specifically gave plaintiffs the opportunity to file supplemental briefing on this issue and gave defendants the opportunity to respond to these additional arguments. After reviewing these supplemental papers and the summary judgment record, we conclude section 820.6 bars liability for the Bane Act claim in this case.
First, we reject plaintiffs’ argument that section 820.6 is inapplicable to the Bane Act as a matter of law. Although there are no published decisions specifically applying the section 820.6 immunity to the Bane Act, under California law “[i]t is generally recognized that a statutory governmental immunity overrides a statute imposing liability.”
(Gates v. Superior Court
(1995)
In arguing to the contrary, plaintiffs rely on the fact that Civil Code
We additionally reject plaintiffs’ argument that defendants failed to meet their summary judgment burden to show the applicability of section 820.6 to the facts of this case. Section 820.6 is a qualified immunity; it applies when a public employee acts “in good faith, without malice, and under the apparent authority of an enactment that is unconstitutional, invalid or inapplicable . . . .” Defendants presented evidence that the District had a policy requiring an individual to obtain a permit before the person could distribute or display written materials, and plaintiffs do not dispute the District’s policy was an “enactment” within the meaning of section 820.6. 9 The undisputed facts further showed defendant law enforcement officers took the challenged actions against plaintiffs based on this enactment. The officers had received training about the permit requirement, and had been told that if an individual was distributing literature without a permit, the officers were to direct the individuals to the student affairs office. Consistent with this training, Lieutenant Doherty told plaintiffs to go to the student affairs office. The student affairs office staff then informed plaintiffs that a permit would not be issued that day and asked Officers Olson and Pabelico to order plaintiffs to leave the campus. Based on this instruction and on their understanding of the permit requirement, the officers told plaintiffs they were not permitted to continue their activities and asked them to leave the campus.
This evidence established the officers acted in good faith in enforcing the permit requirement and that the officers did not act with malice. Under section 820.6, “good faith” reflects a subjective intention to act under the authority of the governing enactment, and to enforce or comply with those rules. (See Legis. Com. com., 32 West’s Ann. Gov. Code,
supra,
foll. § 820.6, p. 263.) “Malice” within the meaning of the immunity statutes is “ ‘that attitude or state of mind which actuates the doing of an act for some improper or wrongful motive or purpose.’ ”
(Laible v. Superior Court
(1984)
The fact that Penal Code
Further, the evidence established that O’Toole did not show the officers Penal Code
Plaintiffs alternatively argue the officers “should have known” the permit requirement was unconstitutional based on federal decisions striking down permit schemes with similar features. (See
Shuttlesworth
v.
Birmingham
(1969)
Moreover, even if we were to apply a reasonableness standard, none of the decisions relied upon by plaintiffs concerned a permit scheme that was sufficiently similar to have put the officers on notice that the District’s permit requirement was clearly invalid. The constitutionality of a particular permit requirement depends on factors unique to each
The applicability of the section 820.6 immunity in this case is supported by strong public policy reasons. When a public entity has imposed a permit requirement, a police officer should not be expected to second-guess this policy by engaging in a constitutional analysis to predict whether a court will uphold the public entity’s restriction. (See
Connecticut ex rel. Blumenthal v. Crotty
(2d Cir. 2003)
Plaintiffs alternatively contend the section 820.6 immunity is inapplicable because defendant officers’ actions constituted an unconstitutional “heckler’s
veto.” They rely on this court’s decision in
San Diego Unified Port Dist. v. U.S. Citizens Patrol
(1998)
We agree that a person may not be constitutionally prevented from speaking because of a potential that the audience will disagree with the message and become disruptive. However, the concept of a “heckler’s veto” does not render the section 820.6 immunity inapplicable in this case. As discussed, the undisputed evidence showed the officers ordered plaintiffs not to distribute materials on campus
because
plaintiffs were violating the District’s permit requirement. Although the evidence showed the officers were also concerned about the extent of the student reactions and may have believed this was a valid basis for preventing plaintiffs from continuing to display and hand out materials, there was no showing the officers took these actions based on the students’
We additionally find unavailing plaintiffs’ contention that the section 820.6 immunity is inapplicable because defendant officers’ challenged acts were not discretionary and they failed to comply with a mandatory duty. First, as discussed in part HI below, defendants did not have a mandatory duty to allow. plaintiffs to continue their protest without a permit. Additionally, although the discretionary-mandatory distinction is relevant when a defendant asserts immunity based on section 820.2,
11
there is no similar language in
section 820.6 making the discretionary issue relevant. If a specific immunity is applicable, it is unnecessary to consider the issue whether the “general discretionary act immunity” applies.
(Creason
v.
Department of Health Services
(1998)
We conclude the undisputed facts show defendant police officers acted in good faith and without malice under the apparent authority of the District’s permit policy, and thus defendant officers were immune from liability under section 820.6. Based on this conclusion, we additionally determine plaintiffs’ Bane Act claim against the District was without merit. A public entity is not liable for an employee’s act if the employee is immune from liability under state law. (§ 815.2, subd. (b);
Masters v. San Bernardino County Employees Retirement Assn.
(1995)
III. Breach of Mandatory Duty Cause of Action
In their second cause of action, plaintiffs allege defendants breached their mandatory duty “not to utilize Penal Code
However, as with the Bane Act, liability under the mandatory duty statute is subject to immunities provided by a specific statute.
We also conclude plaintiffs’ section 815.6 mandatory duty claim fails on its merits. Liability under section 815.6 is not invoked unless a mandatory duty is imposed by some other statutory provision. (See
Creason v. Department of Health Services, supra,
18 Cal.4th at pp. 630-631;
Shamsian v. Department of Corrections
(2006)
To establish a mandatory duty, plaintiffs rely on Penal Code
IV. False Arrest
In the complaint, O’Toole alleged false arrest and imprisonment, and sought damages under the Bane Act for defendants’ violations of his Fourth Amendment rights, claiming the officers arrested him without probable or reasonable cause. O’Toole alleged “[defendants knew, or should have known, that they had no basis for the arrest or the imprisonment,” and that defendants “failed to act with due care or good faith, but acted with malice.”
Defendants moved for summary judgment on the false arrest cause of action on the basis that the undisputed facts showed the officers had reasonable cause to arrest O’Toole for violating Penal Code section 148, subdivision (a) and Penal Code
The undisputed facts show that each of the officers who participated in the arrest was aware of the permit requirement, and was aware that O’Toole did not have a permit.
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The officers had been instructed by campus officials that they must enforce the permit requirement against plaintiffs and the officers reasonably believed the permit policy to be a valid policy. O’Toole admits he unequivocally made clear to the officers that he would continue to violate campus policy by distributing materials without a permit, and repeatedly refused to follow the officers’ directions. O’Toole thus delayed and obstructed the police officers in complying with their law enforcement obligations. Under these circumstances, the officers had reasonable cause to believe that O’Toole violated Penal Code section 148, subdivision (a)(1), which provides that “Every person who willfully resists, delays, or obstructs any . . . peace officer ... in the discharge or attempt to discharge any duty of his or her office or employment. . . shall be punished . . . .” (See
Galvin v. Hay
(9th Cir. 2004)
We also reject plaintiffs’ argument that summary judgment on this claim was improper because triable issues of fact existed as to whether the officers had reasonable cause to arrest for a violation of Penal Code
In any event, the undisputed facts show the officers did have a reasonable basis to conclude that O’Toole was violating Penal Code
Defendants presented evidence that plaintiffs’ conduct materially disrupted the peaceful conduct of the campus by creating a potential for a violent interaction between plaintiffs and the other students. This evidence showed that some of the students were so upset there was a possibility that the students could assault plaintiffs or tear up plaintiffs’ posters. Plaintiffs did not dispute this evidence, or present any contrary evidence. On this record, the officers had a reasonable basis to believe that O’Toole had violated
Plaintiffs argue this belief was unreasonable because courts have “clearly established” that peaceful demonstrators cannot constitutionally be excluded from university grounds based on a disruptive audience reaction. To support this argument, plaintiffs rely on the California Supreme Court’s decision in
Braxton v. Municipal Court, supra,
In
Braxton,
the court interpreted Penal Code section 626.4, which similarly authorizes the banishment of any person from a campus if “ ‘such person has willfully disrupted the orderly operation of such campus.’ ”
(Braxton v. Municipal Court, supra,
10 Cal.3d at pp. 142-143.) The
Braxton
court held that to avoid constitutional problems of vagueness and over-breadth, “willful disruption” must be interpreted to apply only to incitements to violence or physically disruptive conduct otherwise proscribed by statute.
(Id.
at p. 150.)
Braxton,
however, specifically limited its holding to students, declining to reach the proper interpretation of Penal Code section 626.4 as
applied to nonstudents.
(Braxton,
at p. 144, fn. 2; see
Reeves v. Rocklin Unified School Dist., supra,
Citizens Patrol, supra,
Although a lawyer could rely on
Braxton
and
Citizens Patrol
to formulate an argument that arresting a nonstudent on a college campus merely for causing a disruptive audience reaction without stronger evidence of potential physical violence or disruptive conduct violates the individual’s free speech rights, we cannot conclude that a reasonable police officer would have, or
V. Declaratory Relief
In their declaratory relief cause of action, plaintiffs sought a declaration that the District’s permit restrictions violate plaintiffs’ constitutional rights. Defendants moved for summary judgment on this claim, arguing the claim is moot because the District’s policies have been revised and no longer impose a permit requirement. At the hearing below, plaintiffs agreed to withdraw this claim, and have not opposed defendants’ arguments that they are entitled to summary judgment on the declaratory relief claim.
Although the trial court did not specifically rule on this claim in its final order, we agree the claim had no merit. The purpose of injunctive relief is to prevent future or threatened harm.
(Scripps Health v. Marin
(1999)
DISPOSITION
We deny the petition of plaintiffs Jonathan O’Toole, Michelle Chavez, Jason Conrad, Katherine Ford, Daniel McCullough, and Meghan O’Toole. We grant the petition of defendants San Diego Community College District, David Vasquez, Kevin Olson, Joel Pabelico, and Albert Abutin. Let a writ of mandate issue directing the superior court to vacate its order denying summary judgment in favor of defendants and to enter summary judgment in defendants’ favor. Plaintiffs to bear defendants’ costs in this writ proceeding.
McDonald, J., and O’Rourke, J., concurred.
A petition for a rehearing was denied July 6, 2006, and the petition of petitioners Jonathan O’Toole et al., for review by the Supreme Court was denied September 20, 2006, S145351.
Notes
Plaintiffs are Jonathan O’Toole, Michelle Chavez, Jason Conrad, Katherine Ford, Daniel McCullough, and Meghan O’Toole. All further references to O’Toole in this opinion are to Jonathan O’Toole.
Defendant police officers are Sergeant David Vasquez, Officer Kevin Olson, Officer Joel Pabelico, and Officer Albert Abutin. We refer collectively to these officers and the District as defendants.
All further statutory references are to the Government Code unless otherwise specified.
Penal Code
The complaint also named Lieutenant Doherty (the first responding officer), but plaintiffs later dismissed the complaint as to this officer.
Those standards were: “2.1 The literature does not advocate the commission of an unlawful act which is imminent or likely to occur at the time, [f] 2.2 The literature or its distribution on campus in the form of bulletins, circulars, publications, or articles of any character does not impede the orderly conduct of college classes or programs conducted under district auspices, [f] 2.3. The literature is not profane, vulgar, lewd, indecent or obscene, fl] 2.4. The literature does not misrepresent the college or District in any way.”
Civil Code
In this regard, section 820.6 provides broader protection than the federal immunity doctrine, also relied upon by defendants. Unlike section 820.6, the federal doctrine applies an objective test, shielding a public employee from liability unless “ ‘it would be clear to a
reasonable officer that his conduct was unlawful in the situation he confronted.’ ” (Venegas,
supra,
At oral argument, plaintiffs’ counsel reiterated that plaintiffs were not challenging that the District’s policy was an “enactment” within the meaning of this code section. Based on this concession, we assume without deciding, that the policy qualified as an “enactment.” We note that at least one court has narrowly defined the term enactment under section 820.6. (See
Hansen v. California Dept. of Corrections
(N.D.Cal. 1996)
Of course, no immunity will attach if an officer enforces the policy in a “particularly egregious manner, or in a manner which a reasonable officer would recognize exceeds the bounds of the ordinance ...”
(Grossman
v.
City of Portland, supra,
Section 820.2 provides: “[e]xcept as otherwise provided by statute, a public employee is not liable for an injury resulting from his act or omission where the act or omission was the result of the exercise of the discretion vested in him, whether or not such discretion be abused.”
In the third cause of action, plaintiffs alleged defendants were negligent per se because they failed to protect plaintiffs’ free speech rights in violation of Penal Code
Sergeant Valdez had no involvement in the arrest, so the claim as to him additionally fails for this reason.