*1 No. 30867. May [L.A. 1979.] al.,
OTIS PETERSON et Plaintiffs and Appellants, al., CITY OF LONG BEACH et Defendants and Respondents.
Counsel Plaintiffs and Finch, & Tennant Gastello R. Finch and
David Appellants. Okrand, Schlosser, Fred Schwartz, Alan L. C. tai
Ami Crosby, Margaret Martinez, Coblentz, S. Waranoff, Jacobs, Vilma Sills & B. Nicholas G. Erickson, Alice M. Baller, John H. Morris J. Anthony Beasley Curiae on behalf Plaintiffs and as Amici Amsterdam Appellants. Parkin, Putnam and W. Leonard Robert Robert E. City Attorneys, Shannon, for Defendants Respondents. Deputy City Attorney, Evelle J. General, Winkler, Jack R. Chief Assistant Younger, Attorney General, O’Brien, Edward General, P. Assistant W. Attorney Attorney Eric Collins and Jr., Clifford K. General, Thompson, Deputy Attorneys Solomon, Warren William J. B. Saltsman and Stephen Ramey, Ralph Emanuel Cowitt as Amici Curiae on behalf of Defendants and Respon- dents.
Opinion
NEWMAN, J. —In 1972 Police Officer Vershaw shot and killed Roland Peterson. At the time of the Peterson was from his killing running Vershaw had to a radio call apartment. responded erroneously reporting a at the He with drawn. burglary progress apartment. approached gun Peterson fled and was shot in the head. of, Vershaw had had no report see, violence, nor did he or threat of violence at the any weapons, apartment.
Plaintiffs, Peterson’s sued Vershaw and his parents, employer, City Beach, for court, death. The trial Long Vershaw’s wrongful ruling use of force was held in favor of both deadly defendants. justifiable, Plaintiffs appeal.
We conclude that the on use of force was error. California law ruling creates a that Vershaw did not exercise due presumption care here. The trial considered, court should have consider, but did not whether that was rebutted evidence that Vershaw did “what might be of a reasonably expected person ordinary prudence, acting circumstances, similar who desired to with the law . . . .” (Evid. comply Code, 669, subd. § (b)(1).)
I. The Police Manual. Department Our first is whether the Beach Police question Long Department Manual contains of a The regulations public entity. question pertinent to Vershaw’s use of force because in 1967 the enacted deadly Evidence Code section subdivision (a), which “The failure provides: a . . . . . violated due care is if. exercise of a presumed [he] person a . . . -”1 entity regulation public of the that “there was in existence Section 4242
The trial court found certain Beach Police Manual which prescribed Long Department a firearm Beach for the Long discharge by City guidelines Vershaw, officer”;2 Roland further, his at that “Officer weapon firing . Peterson, . . .”3 failed to guidelines comply 1 Section “(a) reads: care if: to exercise due is presumed The failure of person statute, ordinance, of a “(1) entity; or regulation public He violated a “(2) or or person property; violation caused death injury The proximately statute, which the occurrence of the nature “(3) resulted from an The death or injury ordinance, was designed prevent; or the or regulation was one of to his “(4) property the death person The person suffering injury statute, ordinance, was or regulation class of whose persons protection adopted. “(b) be rebutted that: proof presumption may This statute, ordinance, did what might “(1) regulation The person violating under similаr acting person ordinary prudence, expected reasonably circumstances, law . . .” with the . who desired *5 (1976) 61 Cal.App.3d Beach Police Assn. City Long 2 See Beach Long of Officers Charter provides the Beach Long 161of City ‘[t]he “Section 348]: as the the regulations rules and at all times such shall be governed department City police City City Manager 1972, Mansell, 1, defendant John R. On about June or Manager may prescribe.’ Beach, William J. Chief Mooney, and defendant of the City Long 4242 of the Beach Police Department, duly рrescribed of the City Long Police is taken of this section Manual. The relevant portion Department Beach Police Long who was Samuel G. Chapman, Professor firearms policy proposed by from model and the Adminis on Law Enforcement of the President’s Commission assistant director tration of Justice Police).” (Task Force on the cooperation made available in California through “The model has been Chapman 368, (Id., at p. Standards and Training.” on Peace Officer of the California Commission 5.) fn. Assn., thаt section footnote the court concluded supra, Beach 3 In Police Long Officers “It in or and stated: is not conflict with preempted is “a reasonable regulation” (61 at the constitutional officers.” rights state law. It does not deny (id. at 376-377.) 368-369): of the as follows court forth the pertinent part regulation The set pp. pp. is of firearms discharge the of the governing display ’The policy Department “[I] before means other reasonable apprehension members shall exhaust every a firearm. the use of resorting to duties of his in the performance police officer shall not firearm discharge ’An “[IIA] after all other means fail: the circumstances and only following except attacked. or when himself from death serious injury the defense of I ‘In necessary “[ ] person of another from death or serious injury the defense ‘In necessary “[2] attacked. arrest, when an other escapee an or to escape, recapture to prevent ‘To effect “[3] failed, reasonable cause when the officer has suspect have of an adult felony means the use including is involved conduct (a) which the arrest sought the crime for believe that The court’s of law conclusions included these paragraphs: The Manual, “5. Beach 4242, Police Section City Long Department it serve as a for the conduct Beach though may guideline Long police officers, not does constitute a minimal standard of care the use of firearms said officers. The
“6. failure of Officer Vershaw to with Section 4242 of the Manuаl, Beach Police his Long Department discharging herein, act, firearm does not constitute a or a so negligent long wrongful as his conduct was within limit of California Penal permissible Code and it was within such limit. . . .” that,
Defendants when the in Evidence Code section argue Legislature “statute, subdivision (a) ordinance, enacted the phrase regulation of a the intent was to cover local public ordinances but not local entity,” like section 4242 of the regulations Even manual. the chief though and the were authorized to аct for the city manager city (see section 4242 fn. duly prescribed ante), seems to be argument that their official did not clothe them with the positions attributes of a public entity.
What did the mean Section 200 of by “public entity”? Code, Evidence enacted two earlier than section us tells that a years nation, state, can “a district, public entity county, city county, city, other subdivision or public authority, public agency, any political (b) or threatened use of force and is a risk that there substantial deadly original] [italics arrest is will cause death or harm whose serious person sought bodily apprehension *6 if delayed. [Italics ours.] ‘To kill a or one that so animal is that dangerous badly humanity injured “[4] its removal from further and other is requires suffering disposition impractical. ‘To an alarm or to call no assistance when other give important purpose “[5] means can be used. ‘For at an target practice approved range. “[6] be, ‘An officer shall not fire at known to or persons suspected being, juveniles “[B] (a) under 18 in (persons thе defense of himself years age) except from death necessary or (b) serious when or attacked in in the injury original] defense from necessary [italics death or serious of another attacked. injury person ‘Firearms shall not be under the circumstances: discharged following “[C] a ‘As warning. or (a) ‘At vehicles unless in fleeing the moving defense himself from necessary death (b) or serious when attacked or in injury the defense original] necessary [italics ” from death serious of another person attacked.’ injury On 7 and 8 of his amicus pages brief filed defendants here the support Attorney conceded, General . . Beach held . that a chartered “Long could enact greater city restrictions use of upon police force than those state law.” deadly imposed by 244 domestic”; those and when whether foreign corporation,
public Commis- Revision the California Law were words definitional proposed includes broad definition every “The entity’ sion commented: ‘public two italicized Those added.) . . . .” (Italics public fоrm are form of and apt “every public authority,” “public agency” phrases, here. of its the
A But so are the office is city manager public city entity. has been its chief directs. Each traditionally police department We find it hard of the as an “agency” city, obviously “public.” regarded that the would not to believe regard city managers is as heads of a “form conceded) rules chiefs (whose power promulgate therefore, Since, the manual when promulgated public authority.” they were heads оf and the chief as public acting city manager 4242 the manual defined and since section Legislature, entity, not have we hold that trial court should is clearly “regulation,”4 4242 a minimal standard of concluded that section “does not constitute court thus said officers.” The trial care for the use firearms by of failure to due consideration to rebuttable did not give Code due care that Evidence exercise prescribes.
II. Considerations Policy We now words and their focused on So we have plain meaning. far as to words alone aims, that a conclusion sure examine legislative extend the will not purpose. Legislature’s irrationally the Law Revision was enacted in 1967 The statute proposed common law Commission, “Section 669 codifies a which stated: presump Those cases (and California cases.” tion applied frequently involved statutes ordinances. decided) Many, others since mostly v. Levels Growers administrative (See, dealt with regulations. e.g., though, 443, 447 Co. Ammonia (1975) Cal.Rptr. Cal.App.3d 779] [121 Supply Ins. Fund order; v. Short State of Ind. accord: Compensation Safety [Div. 104, 109, fn. 4 Atkins 15]; Bisigier of Health reg.]; [Dept. 49] *7 1053, 1059 3 (1970) v. Elton Cal.App.3d [84 Orange County 6, We the trial court’s that text footnote reject suggestion 4 See our following infra. “An not Its are commands officer shall contains mere words (e.g., section 4242 guidelines. Note also the section’s and “Firearms shall not be discharged”). a firearm” discharge notification, “whenever a member as and report, investigation detailed requirements at an range).” firearm (except approved discharges
245 welfare Nevis v. Gas Electric 43 Co. (1954) regs.]; [social 27] Pacific 626, Cal.2d 629 P.2d v. Permanente Peterson order]; [275 761][P.U.C. 579, 129 581 P.2d (1954) Steamship Corp. [Coast [277 495] Guard cf. San Gas & Electric Co. v. United States Cir. (9th reg.]; Diego 92, 173 F.2d 93 aeronautics v. Good Year 1949) reg.]; Neiswonger [civil Tire 35 F.2d 763 of Commerce 1929) [Sect, & Rubber Co. (N.D.Ohio rule].)
Here, however, it is that statewide or nationwide argued regula tions on matters such as industrial and aeronautics are different safety council, board, from local at least when no school or regulations, city 5 has The similarly “sovereign” entity promulgated regulations. has no merit. In California the local laws that argument prescribe safety, health, or other standards ordinances, sometimes are as promulgated sometimes as When the have been regulations. regulations duly and contain words that are that prescribed clearly obligatory, suggest in section 669 intended to between ordinance- distinguish form and standards discloses a lack of regulation-form understanding to how modern work. v. Bulaich (Cf. governments (1945) Hopper Cal.2d Davis, P.2d commissioner’s permit]; 483] [road Administrative Law: Cases-Text-Problems ed. 509: (6th 1977) p. “Officers should not have to determine in each case in accordance power with their whims what overall . . . momentary policy they prefer. [T]hat is the should subtract.”) power rulemaking no means have California been as to
By legislators unsophisticated administrative as to differences between regulations, rulemaking as to are for state adjudication, rulemaking procedures practicable but not for local as to matt agencies perhaps yet parallel agencies, ers.6 Government Code section It 811.6 defines means regulation. rule, standard, law, “a order or the force of regulation, having adopted by . . . vested employee agency public entity pursuant constitution, statute, charter or ordinance in such employee implement, or make the law enforced or administered interpret specific (italics added). employee agency” Vallas 5 See Chula Vista (1976) 387-88 469],
which we to the extent that its are disapprove inconsistent with views rulings expressed herein. Hutchinsоn, Rule 6 See Function Making Administrative Agencies of California 272; Lerch, Comments on the L.J. Hastings Process and the Rule-Making California Thereon Environmental Act Quality 5 U.C. Davis Effects California 309; L.Rev. Organizations Administrative Practice —A Balance to the Livingston, *8 246
That definition includes standards for use the of surely weapons when the standards have the force of law7 and were were adopted, they here, the by and public entity’s (city chief), employees manager to vested charter or ordinance to pursuant by implement, or make the law administered those interpret, specific and by employees their subordinates. that,
The trial court found when Vershaw shot and killed son, he “failed to . . . plaintiffs’ Evidence Code comply [§ 4242].” section 669 and the of failure to applies, exercise due care presumption arose because the son’s death “resulted from an occurrence of the nature of which . .. was 669, subd. (See § designed (a)(3).) [§ prevent.” 4242] 669,
III. Evidence Code Section Subdivision (b)(1) Our final is whether trial court erred it failed to when question 669, addrеss the issue Evidence Code section subdivision (b)(1): posed by theWas failed to Vershaw exercise due care because he violated the manual rebutted he evidence that did “what might be of a reasonably expected person ordinary prudence, acting circumstances, similar who desired with the law”? 89, 99-101; (1974) Newman, State? 26 Corporate L.J. Hastings Two Decades of 190, 193; Law (1956)
Administrative A 44 Critique Cal.L.Rev. cf. California California: 399, C; 1966) (Cont.Ed.Bar Administrative Mandamus Code of page Civil appendix 1094.6, Procedure section subdivision (g). 7 In because of part distinctions between federal the California administrative 198, 201-202, (see acts procedure preceding Armistead v. State Personnel Board 22 Cal.3d text 1, 744]), fn. 2 583 P.2d “force of law” Cal.Rptr. when used our [149 differs from what some who scholars focus on the federal statute have mostly Cases-Text-Problems, (See, on Davis Administrative projected. 230 e.g., Law: supra, pp. Rules”]; cf. [“Interpretative Legislative Curreri v. etc. San City Francisco (1968) 262 20].) 609 We do not amici’s accept suggestion “finding on basis liability rule of conduct will departmental rules alone deter from police departments simply making all, (Brief conduct at because of their fear of civil imposing unnecessary liability.” 7.) (Cf. of No. Cal. et at fn. ACLU al. the Att. Gen.’s at p. amicus brief p. [“police officers . . . clear San Jose require guidance”]; Peace Assn. v. Jose San Officer’s (1978) 78 638]; (2d 1975) Jones v. Marshall Cir. 528 F.2d 132, 140, [police bulletin].) fn. 15 training Morris, see The Role Administrative Measures in Actions Generally Safety Negligence 143, 155; McGowan, (1949) Tex.L.Rev. Police Rule-Making 659, 680 Mich.L.Rev. first offers the for the [“police rulemaking possibility defining really— (“actions time—the in violation of its own rights suspects”), agency are no effect when the interests of those regulations personal given subject agency are action have affected—and this is true whether or not the action would adversely question been on in default of a regulation proper subject.”)
247 What is “the law” that those last two words From comprehend? sections and 810.6 of the Government Code we learn that law includes not but also measures. Section only legislative quasi-legislative is, course, 4242 of the manual measure. (See quasi-legislative Code, too Gov. 11420.) §
The trial court that “at all found times Officer Vershaw acted pertinent aas reasonable officer in the duties prudent discharging It him as a officer of the State of California.” also imposed upon peace not, found that he violated the commands of section 4242. It did consider whether he “desired with that law. unfortunately, comply” The sole evidence his desire to that he did not regarding comply suggests Since, think of section 4242’s command before as we have shooting.8 shown, his violation raised a he cannot be presumption negligence, freed from without a as to whether he could liability judicial inquiry rebut the That in section successfully presumption. inquiry, implicit subdivision was not made (b)(1), because the trial court disregarded section subdivision (a). for defendants is reversed.
The judgment J.,
Bird, Mosk, Tobriner, J., J., concurred. C. RICHARDSON, J. —I dissent. As the respectfully majority opinion at issue here is the of Evidence Code section 669 explains, applicability and its We decide whethеr noncom- must presumption negligence. 8 Penal Code section 196 that “Homicide is when committed provides justifiable . officers . . when committed in public necessarily arresting persons charged felony, are from who such arrest.” Defendants that under fleeing justice resisting argue involved, 196homicide officer is when is not by police justifiable any felony just the “violent” (But felonies which the manual restricts the use of firearms. see Kortum v. Alkire 26]; Beach Police Long Officers Association v. Beach 373-374 348].) Long We need not consider that Even if section 196 force under argument. permitted deadly facts, these it did not its use. Thus a desire to with that section could not compel rebut the raised a violation of section 4242 of the manual. negligence Nor need we consider the of section 196 for scope purposes immunity 820.6, Government Code section which who “acts . . . under protects public employee the that he would have been liable had the enactment been . . . section 196 referred to of an enactment apparent . . . . . . to the extent inapplicable except Even had applicable.” Vershaw could still be liable for the police any felony, violating manual reach the amici which forbade the in this case. Therefore we do not regulation, shooting clearly it a defense that section 196 is because argument inapplicable provides to criminal while Penal Code section 835a is the affirmative authorization of only liability, force”). (“reasonable of force use officers by police *10 manual, with a department regard-
pliance police containing guidelines officers, the use of firearms invokes the police ing statutory presump- to tion. As will I conclude would contrary majority’s appear, holding, that 669 is inapplicable. statute,
Section 669
to a
ordinance
of a
applies only
regulation
and it is
that a
“public agency,”
certainly arguable
police department
manual should not be considered a
under that
public agency regulation
382,
section.
Vallas v.
Chula Vista
(Accord,
(1976) 56
Yet,
387-388
to
469].)
Cal.Rptr.
my objection
analysis
[128
majority’s
focuses on
different
We have
held that section
entirely
problem.
a
ordinance
in
was
regulation
requires
showing
question
to
class from
“designed
protect persons
plaintiff’s
injury
type
which in
v.
Gas &
fact occurred.”
Electric Co.
(Mark
(1972)
Pacific
170,
908,
183,
496 P.2d
Cal.3d
fn. 10
see
1276];
Cal.Rptr.
Vesely
[101
In
5 Cal.3d
164-165
In the the trial court found that the present expressly care, a manual was not intended as standard of but was a set of merely firearm use. guidelines describing departmental policies regarding the court found that the manual “. . . it serve as Specifically, though may officers, a for the conduct of Beach does not guideline Long constitute minimal standard care for the use firearms . . . police officers.” The court further found that the officer’s failure to act, the manual not or a so “. . . does constitute negligent wrongful long within the limit of the California Penal as his conduct was permissible Vershaw, . . . Officer Code and it within such limits was firing [since] Peterson, within the force his at Roland used weapon justifiable deadly State Penal Code.” Section 196 of the California limits of permissible view, subscribe, I In the trial court’s which fully internal, violation of cannot be based depart upon negligence рroperly of care. were not as minimum standards mental which intended policies “The recent case the identical manual As stated in a provision, involving to the officer- provide training guidance purpose regulation that he he into a where a could claim so that will not situation get plaintiff used force.” Beach Police Assn. v. excessive Long (Long City of Officers words, In other 348].) Beach and above the limits the manual was intended restraint over encourage law, in order to the officer and his from civil imрosed by protect employer ironic, It is I which were intended liability. highly suggest, guidelines to shield civil suits now furnish the sole basis for against may imposing such liability.
The trial court’s determination that the manual was not intended *11 to establish a minimum standard conduct sowas correct that clearly this abandoned on the As he stated in his plaintiff point appeal. opening brief before the Court of the trial court ruled that the Appeal, “correctly Police . . . use of to firearms did not rise the Department policy against level оf a statute ordinance and therefore invoke the doctrine of Further, brief, se . . . .” (Italics added.) his negligence per closing conceded that no “there is the rule . . . that the plaintiff dispute violation of the Police Manual be Procedure will not deemed the of the violation of a statute or equivalent ordinance [under 669] . . . .” (Italics added.) concession, however, the inex-
Despite plaintiff’s unqualified majority obvious, resurrects the unfortunate, The and result of its plicably point. will inhibit the and present holding preparation publication needed on the of restraint in the sorely departmental guidelines subject use of Indeed, authorities share deadly weapons. concern respectable my in this The American Civil Liberties Union regard. (ACLU), along several like curiae, herein as amici us to organizations appearing implore refrain from that violation of a holding manual police department may invoke a Amici “A observe that negligence. judgment on the basis of a finding rule liability of conduct alone will dеpartmental deter; all, from at simply rules conduct depártments making because of their fear of civil The imposing unnecessary liability.” American Bar Association (ABA) “Police administrators will need agrees: both from support and courts in the encouragement legislatures and continual review of development, the administrative implementation, In instances, .... administrative rule-making process many necessary [if] should reflect an effort administrators to policies by police require police offiсers to follow that are not the procedures necessarily required by Constitution state For law. the on by example, policies formulation of of First on Amendment restrictions on the use protection rights, force, or on in selective enforcement will be more equal protection hopefully restrictive than statutes or To law existing interpretation may require. stimulate such administrative a determination timely policy-making, should not be the basis for of an
court of violation administrative policy case .... Nor should determination in a criminal evidence excluding civil or of violation mandatory necessarily provide subsequent from of the officer involved. Aside criminal encouraging liability could have the collateral administrative this rulemaking, approach administrative action more and effective benefit prompt stimulating in misconduct.” (Italics officers agencies against police engaging Justice, added; for Crim. Stds. ABA on Stds. Relating Project 137.) Urban Police Function pp. admoni-
The opinion bluntly rejects foregoing policy majority ABA; is ACLU no reason whatever tion asserted both the (Ante, 246, fn. 7].) thereof. furnished in p. explanation at manual It to conclude that reasonable departmental entirely firearm issue herein was promote police procedures regarding designed *12 than the more restrictive use which are presently procedures considerably Code, homicide law. Pen. (See, § [justifiable e.g., required by P. 938].) officers]; Cal.App. Murray Murphy if he law, immune from civil Indeed, an officer is liability present of an enactment such under the acts in faith apparent good noted, As court Code, the trial 820.6.) 196. § Code section (Gov. Penal or its intent to show the evidence failed department any city a minimum declare these requirements existing legal modify an officer’s care for of care standard legal duty measuring purposes 669 was toward third clearly inapplicable. persons. Accordingly, I would affirm the judgment. Manuel,
Clark, J., J., concurred. Clark, was denied 1979. July rehearing petition Respondents’ J., J., Richardson, Manuel, that the J., were of the petition opinion should be granted.