cops

PEACE OFFICER (police, Highway Patrol, Sheriff deputies) EMPLOYEES HAVE NO MANDATORY DUTY TO PROTECT YOU

We thus require citizens to apprise themselves not only of statutory language but also of legislative history, subsequent judicial construction, and underlying legislative purposes (See generally Amsterdam, The Void-For-Vagueness Doctrine in the Supreme Court (1960) 109 U. Pa. L.Rev. 67.)
Walker v. Superior Court (1988) 47 Cal.3d 112
People v. Grubb (1965) 63 Cal.2d 614

CALIFORNIA CIVIL CODE

            1708. Every person is bound, without contract, to abstain from injuring the person or property of another, or infringing upon any of his or her rights.

"Common as the event may be, it is a serious thing to arrest a citizen, and it is a more serious thing to search his person; and he who accomplishes it, must do so in conformity to the law of the land.   There are two reasons for this; one to avoid bloodshed, and the other to preserve the liberty of the citizen.   Obedience to the law is the bond of society, and the officers set to enforce the law are not exempt from its mandates.".
Town of Blacksburg v. Bean 104 S.C. 146. 88 S.E. 441 (1916)
Allen v. State, 197 N.W. 808, 810-11 (Wis 1924)

Even if the officer is not expected to know the law of all 50 states, surely he is expected to know the California Vehicle Code...
CLEMENT v. J & E SERVICE INC., No. 05-56692, March 11, 2008, UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

Even if the officer is not expected to know the law of all 50 states, surely he is expected to know the California Vehicle Code,...
THE PEOPLE v. JESUS SANTOS SANCHEZ REYES (2011) 196 Cal.App.4th 856

...'[a]n officer is under no duty to make an unlawful arrest.' [Citation.] It goes without saying, of course, that neither is it the duty of officers to taunt or beat persons arrested."
People v. White (1980) 101 Cal.App.3d 161

...a peace officer is under no duty to make an unlawful arrest.

[5] Moreover, it is a public offense for a peace officer to use unreasonable and excessive force in effecting an arrest (Boyes v. Evans, 14 Cal.App.2d 472 ...).   Therefore, a person who uses reasonable force to protect himself or others against the use of unreasonable excessive force in making an arrest is not guilty of any crime (Pen. Code, §§ 692, 694).
People v. Cuevas (1971), 16 Cal.App.3d 245

We are of the opinion that the law does not permit the citizen to consent to an unlawful restraint nor such claim to be made upon the part of the defendants. It is so held to assault and battery, Cooley on Torts (2d Ed.) 188, which is part of the charge in the complaint, and we think the principle equally applicable to restraint, which includes an assault.
Meints v. Huntington, 276 Fed. 245, 19 A.L.R. 664

Contrary to popular belief, the police have no duty to protect you. They "may", the have discretion, but they have no mandatory duty to protect you. You will find NO LAW that imposes an obligation on police employees to protect anyone.

            Someone's been lyin!   Someone's beliefs are FALSE!

            Police, Highway Patrol, and Sheriff deputies ARE NOT REQUIRED to protect individual citizens from other citizens, contrary to popular belief.    In fact most people believe police HAVE TO arrest when they witness crime.   That is completely false.   There is NO MANDATORY DUTY imposed on police employees to protect or arrest anyone.   Where is it written that applicants for the job of cop is REQUIRED to take a bullet for anyone as a condition of qualifying for employment?

            This is the ARREST authority provided by the California Legislature:

CALIFORNIA PENAL CODE

836. (a) A peace officer may arrest a person in obedience to a warrant, or, pursuant to the authority granted to him or her by Chapter 4.5 (commencing with Section 830) of Title 3 of Part 2, without a warrant, may arrest a person whenever any of the following circumstances occur:

(1) The officer has probable cause to believe that the person to be arrested has committed a public offense in the officer's prese

CALIFORNIA GOVERNMENT CODE

14. "Shall" is mandatory and "may" is permissive.

The term "shall" is not included in the section that applies to arrests. If you happen to be arrested by a police officer then you might ask them the question during your trial whether they were required to arrest you or not. There's only one correct answer and it's located in the very book police officers enforce that identify crimes, the Penal Code.

CALIFORNIA GOVERNMENT CODE

820.   (a) Except as otherwise provided by statute (including Section 820.2), a public employee is liable for injury caused by his act or omission to the same extent as a private person.
          (b) The liability of a public employee established by this part (commencing with Section 814) is subject to any defenses that would be available to the public employee if he were a private person.

820.2.   Except 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.

* DISCRETION is the BARE ASS MINIMUM authorization. What’s beneficial or useful, in my opinion, is the fact, the undeniable fact, that the officer employee is not required or mandated to act. They do not have to arrest anyone without a warrant. The Legislature has not imposed a mandatory obligation enjoining law enforcement officers to arrest without a warrant when they observe a crime committed in their presence.

The following court decisions prove that peace officer employees (police, Highway Patrol, Sheriff deputies) DO NOT HAVE ANY DUTY TO PROTECT YOU:

DUTY OF CARE - SPECIAL RELATIONSHIP - TRAFFIC ENFORCEMENT STOP - MISFEASANCE - NONFEASANCE

1.    Lugtu v. California Highway Patrol (2001) 26 Cal. 4th 703
2.    Lugtu v. California Highway Patrol (2000) 79 Cal. App. 4th 35
3.    People v. Espino (2016) 247 Cal. App. 4th 746
4.    DESHANEY v. WINNEBAGO CTY. SOC. SERVS. DEPT., 489 U.S. 189 (1989)
5.    Balistreri v. Pacifica Police Department, 901 F.2d 696 (9th Cir.) (1988)
6.    SCREWS v. U.S., 325 U.S. 91 (1945)
7.    Eyrle S. Hilton, IV, v. City of Wheeling, et al., (2000) No. 99-3727, In the United States Court of Appeals For the Seventh Circuit
8.    Whitton v. State of California (1979) 98 Cal. App. 3d 235
9.    Rowland v. Christian (1968) 69 Cal. 2d 108
10.    Adams v. City of Fremont (1998) 68 Cal. App. 4th 243
11.    Grudt v. L.A. (1970) 2 Cal. 3d 575
12.    Reed v. San Diego (1947) 77 Cal. App. 2d 860
13.    Kaisner v. Kolb, 543 So. 2d 732 (1989), Supreme Court of Florida.
14.    Jackson v. Ryder Truck Rental, Inc. (1993) 16 Cal. App. 4th 1830
15.    McCorkle v. City of Los Angeles (1969) 70 Cal. 2d 252
16.    Wallace v. City of Los Angeles (1993) 12 Cal. App. 4th 1385
17.    Mann v. State of California (1977) 70 Cal. App. 3d 773
18.    CARROLL v. U.S., 267 U.S. 132 (1925)
19.    HENRY v. UNITED STATES, 361 U.S. 98 (1959)
20.    UNITED STATES OF AMERICA v. DONALD KEITH BURTON (2003) No. 02-60428, IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

            The first three cases of 119 returned by Lexis, are the only cases in California that contain the term “traffic enforcement stop”.

            Cases 4 - 7 provide the proof that there is no constitutional requirement for State or local government to provide police service.   They also acknowledge that there is no mandatory duty for peace officers to provide protection to individual members of the citizenry.

            California Penal Code §836(a)(1) is proof peace officers have no mandatory duty to arrest anyone and that the duty to arrest is discretionary.   California Penal Code §19.6 prohibits imprisonment for infractions.   A “traffic stop” is imprisonment and has been identified by the Legislature as an arrest, the procedures for which are located in the Vehicle Code beginning at §40300.

...traffic stops are technically “arrests”...
"Investigative Detentions", Spring 2010 POINT OF VIEW, ALAMEDA COUNTY DISTRICT ATTORNEY’S OFFICE. p. 1

A traffic arrest occurs when an officer stops a vehicle after seeing the driver commit an
infraction. ...the purpose of the stop is to enforce the law, not conduct an investigation.
“Arrests”, Spring 2009, POINT OF VIEW, ALAMEDA COUNTY DISTRICT ATTORNEY’S OFFICE, p. 1

AN ARREST FOR NONCRIMINAL CONDUCT IS A CRIME REGARDLESS OF WHO MAKES THE ARREST!

Lugtu v. California Highway Patrol

Supreme Court of California

August 16, 2001, Decided

No. S088116.

26 Cal. 4th 703

CECELIO LUGTU et al., Plaintiffs and Appellants, v. CALIFORNIA HIGHWAY PATROL et al., Defendants and Respondents.

Prior History:

Superior Court of San Diego County. Super. Ct. No. N76651. David B. Moon, Jr., Judge. Court of Appeal of California, Fourth Appellate District, Division One. D032518.

CALIFORNIA OFFICIAL REPORTS HEADNOTES
Classified to California Digest of Official Reports

CA(1) (1) Negligence § 9 — Elements of Actionable Negligence — Duty of Care — Statement of Rules.

– Under general negligence principles and Civ. Code, § 1714, a person ordinarily is obligated to exercise due care in his or her own actions so as not to create an unreasonable risk of injury to others, and this legal duty generally is owed to the class of persons who it is reasonably foreseeable may be injured as the result of the actor's conduct. Moreover, one's general duty of care includes the duty not to place another person in a situation in which the general duty of care includes the duty not to place another person in a situation in which the other person is exposed to an unreasonable risk of harm through the reasonably foreseeable conduct (including the reasonably foreseeable negligent conduct) of a third person.

CA(2a) (2a) CA(2b) (2b) CA(2c) (2c) CA(2d) (2d) Negligence § 92 — Actions— Trial and Judgment — Questions of Law and Fact — Duty of Care — Duty of Officer Who Pulls Over Vehicle on Highway: Law Enforcement Officers § 17 — Police — Rights and Duties — Officer's Duty of Care When Directing Vehicle to Side of Road.

– In an action against the California Highway Patrol (CHP) and a CHP officer arising from a traffic accident in which plaintiffs, occupants of a car that had been pulled over into a highway median strip by the officer, were struck by a truck that drifted out of its lane, the trial court's grant of summary judgment in favor of defendants could not be sustained on the ground that the officer owed plaintiffs no legal duty. A law enforcement officer has a duty to exercise reasonable care for the safety of persons whom the officer stops, and this duty includes the obligation not to expose such persons to an unreasonable risk of injury by third parties. Further, because the CHP Officer Safety Manual indicates a strong preference for stopping a vehicle on the right shoulder rather than the median strip, it could not be concluded that an officer's duty in such circumstances is limited to stopping a vehicle off the travel lanes, without regard to any other relevant factor that might affect the reasonableness of the officer's actions.

CA(3) (3) Negligence § 2 — Definitions and Distinctions — Misfeasance — Nonfeasance: Words, Phrases, and Maxims — Misfeasance — Nonfeasance.

– Misfeasance exists when the defendant is responsible for making the plaintiff's position worse, i.e., the defendant has created the risk. Conversely, nonfeasance is found then the defendant has failed to aid the plaintiff through beneficial intervention.

CA(4) (4) Neglience § 10 — Elements of Actionable Negligence — Duty of Care — Standard of Care — Effect of Compliance with Statute.

– Even when a defendant has complied with an applicable statute or regulation, this does not prevent a finding that a reasonable person would have taken additional precautions where the situation is such as to call for them.
[See 6 Witkin, Summary of Cal. Law (9th ed. 1988) Torts, § 756.]

CA(5) (5) Negligence § 70 — Actions — Evidence and Proof — Admissibility of Evidence — Laws, Regulations, and Ordinances — Highway Patrol Officer Safety Manual.

– Under Evid. Code, § 669.1, the provisions of the California Highway Patrol Officer Safety Manual may not properly be viewed as establishing the applicable standard of care, but they may be considered by the trier of fact in determining whether an officer was negligent in a particular case. The manual cannot be read to establish the standard of care, because there is no indication that the manual was adopted pursuant to the state (or federal) Administrative Procedure Act. Absent such adoption, Evid. Code, § 669.1, forbids the use of the manual to establish the presumption of negligence that otherwise would arise under Evid. Code, § 669. At the same time, Evid. Code, § 669.1, specifies that it is not intended to affect the admissibility of such a manual into evidence, and thus it is clear that the manual may be considered as evidence on the question of negligence.

CA(6) (6) Summary Judgment § 19 — hearing and Determination — Burden of Persuasion.

– A party moving for summary judgment bears the burden of persuasion that there is no triable issue of material fact and that the party is entitled to judgment as a matter of law. There is a triable issue of material fact if the evidence would allow a reasonable trier of fact to find the underlying fact in favor of the party opposing the motion in accordance with the applicable standard of proof.

CA(7) (7) Negligence § 120 — Action — Trial and Judgment — Summary judgment — Existence of Triable Issue.

– In an action against the California Highway Patrol (CHP) and a CHP officer arising from a traffic accident in which plaintiffs, occupants of a car that had been pulled over into a highway median strip by the officer, were struck by a truck that drifted out of its lane, the trial court erred in finding that the undisputed evidence established as a matter of law, that the officer was not negligent. It was undisputed that the median strip was wider than the right shoulder at this location, that the vehicle occupied by plaintiffs was traveling in the fast lane and thus a stop in the median strip did not require it to cross other lanes, and that the weather and visibility were good. However, in light of the conflicting evidence relating to the requirements of CHP procedure in the situation presented, and the circumstance that the evidence disclosed by the declarations and counterdeclarations could support a jury's finding that the officer was either summary judgment motion clearly raised a triable issue for the jury's determination on the negligence question.

CA(8) (8) Negligence § 19 — Elements of Actionable Negligence — Proximate Cause — When Intervening Cause Becomes Superseding Cause — Effect of Truck Driver's Negligence in Colliding with Car Pulled Over by Highway Patrol.

– In an action against the California Highway Patrol (CHP) and a CHP officer arising from a traffic accident in which plaintiffs, occupants of a car that had been pulled over into a highway median strip by the officer, were struck by a truck that drifted out of its lane, the trial court's grant of summary judgment for defendants could not be sustained on the ground that the officer's conduct was not, as a matter of law, the legal cause of plaintiff's injuries. The risk of harm posed by the negligence of an oncoming driver was one of the foremost risks against which the officer's duty of care was intended to negligent and that his negligence was a substantial and even predominant cause of plaintiff's injuries, such a finding would not render the truck driver's conduct a superseding cause totally eliminating the officer's responsibility for plaintiffs' injuries. However, such a finding would, under comparative fault principles, justify the jury's apportioning the bulk of responsibility for the accident to the truck driver, rather than to the officer.

Counsel: Law Office of Steven W. O'Reilly, Charles B. O'Reilly, Steven W. O'Reilly; Haight, Brown & Bonesteel and Rita Gunasekaran for Plaintiffs and Appellants.

Bill Lockyer, Attorney General, Pamela Smith-Steward, Chief Assistant Attorney General, Margaret A. Rodda, Assistant Attorney General, Kristin G. Hogue and Karen M. Walter, Deputy Attorneys General, for Defendants and Respondents.

Judges: Opinion by George, C. J., with Kennard, Werdegar, and Chin, JJ., concurring. Dissenting opinion by Brown, J., with Baxter, J., concurring (see p. 726).

Opinion by: GEORGE

Opinion

GEORGE, C. J.

Plaintiffs, passengers in an automobile that had been pulled over by a California Highway Patrol officer into the center median strip of a highway for a traffic violation, were injured when a pickup truck ran into their automobile from behind, while the automobile was stopped in the median strip. Plaintiffs thereafter filed this personal injury action against (1) the driver of the pickup truck, (2) the driver of the automobile in which they were riding, and (3) the California Highway Patrol (CHP) and the CHP officer who had directed their vehicle to stop in the center median, alleging that each defendant had been negligent and bore some legal responsibility for plaintiffs' injuries.

Prior to trial, the CHP and the CHP officer – the only defendants involved in the appeal now before us (hereafter generally referred to simply as defendants) – filed a motion for summary judgment, contending that plaintiffs' action against them should be dismissed on the ground, among others, that the CHP officer owed no legal duty of care to plaintiffs. After the parties filed declarations and counterdeclarations (including a copy of portions of the applicable CHP Officer Safety Manual), the trial court granted summary judgment in favor of defendants, based in part upon its determination that the CHP officer "had no duty to stop plaintiffs on the right shoulder as a matter of law and there is no triable issue of fact as to whether [the officer] acted with due care or whether his conduct was a legal cause of plaintiffs' injuries."

On appeal, the Court of Appeal reversed, concluding that the CHP officer owed plaintiffs a legal duty of reasonable care when he directed the driver of the automobile in which they were riding to stop in a particular location, and that triable issues of material fact exist as to whether the officer acted with reasonable care and whether his alleged negligence was a legal cause of plaintiffs' injuries.

We granted review to consider the issues presented. As we shall explain, the governing precedents clearly establish that a law enforcement officer, in directing a traffic violator to stop in a particular location, has a legal duty to use reasonable care for the safety of the persons in the stopped vehicle and to exercise his or her authority in a manner that does not expose such persons to an unreasonable risk of harm; thus, the summary judgment in favor of defendants cannot be upheld on the theory that the CHP officer owed no duty of care to plaintiffs. Furthermore, although a jury properly could find from the evidence presented by defendants in support of the summary judgment motion that the CHP officer was not negligent in directing the automobile in which plaintiffs were riding to stop in the center median under the circumstances of this case, we agree with the Court of Appeal that, in view of the conflicting declarations and the provisions of the CHP Officer Safety Manual submitted by plaintiffs in opposition to the summary judgment motion, the issue whether the officer was or was not negligent cannot properly be resolved by a court as a matter of law and instead presents a triable issue of fact for the jury's determination. Accordingly, we conclude that the trial court erred in granting summary judgment in favor of defendants, and that the judgment of the Court of Appeal, reversing the trial court's ruling, should be affirmed.

On August 15, 1996, Richard Hedgecock, a CHP motorcycle patrol officer, was on duty in San Diego County on Highway 78, a limited access highway with three eastbound and three westbound lanes. The weather was dry, visibility was good, and traffic was moderate to fairly heavy. Shortly before 5:00 p.m., Hedgecock observed a Toyota Camry traveling westbound at an estimated speed of 85 miles per hour in the fast, or number one, lane. Hedgecock pulled his motorcycle along the right side of the Camry, sounded his siren to attract the attention of its driver, and motioned to the driver to stop in the center median area of the highway. As directed, the driver pulled the car over to the left and stopped the Camry in the center median of the highway. Hedgecock stopped 10 to 15 feet behind the Camry, close to a two-foot-high concrete barrier separating the westbound median area from traffic traveling in the eastbound direction, and turned off the motorcycle's lights.

Hedgecock walked to the driver's side of the Camry, which was about two feet from the concrete median barrier. Hedgecock noticed that the three young girls in the backseat of the Camry (Zean Lugtu, Zeachelle Lugtu, and Leah Cabildo) were not restrained by seat belts. The driver of the Camry, Michael Lugtu, identified himself as the uncle of the three girls, and identified the other passenger in front, Cecelio Lugtu, as the father of two of the girls. Hedgecock issued a speeding citation to Michael Lugtu and a seat belt citation to Cecelio Lugtu.

After writing the citations, Hedgecock noticed that the girl in the middle rear seat still did not have her seat belt on, and he stated he would issue another citation if she were not restrained by a seat belt. Michael Lugtu got out of the Camry, apparently to try to help retrieve the middle rear seat belt, as Hedgecock began walking back to his motorcycle. The other four occupants remained within the vehicle. At that point, the Camry had been stopped in the median area for about six to eight minutes.

As Hedgecock returned to his motorcycle, he observed a pickup truck, traveling westbound in the fast lane, begin drifting further and further into the center median toward Hedgecock and the Camry. As the truck approached, Hedgecock waved and jumped up and down, trying to attract the attention of the truck's driver, James Neeb, who appeared to Hedgecock to be looking down inside the truck. Just as the truck was about to hit him, Hedgecock dove over the concrete median barrier and heard a very loud crash.

The truck did not hit Hedgecock or Michael Lugtu, but it struck the rear of the Camry while Cecelio Lugtu and the three young girls were inside. All four of the car's occupants were seriously injured in the accident.

In August 1997, Cecelio Lugtu and the three young girls (plaintiffs) filed the present action against Hedgecock and the CHP (defendants), Neeb (the driver of the pickup truck), and Michael Lugtu (the driver of the Camry), alleging that each was negligent and that the negligence of each was a substantial cause of plaintiffs' injuries. 1Link to the text of the note

In September 1998, after several depositions had been taken, defendants filed a motion for summary judgment, asserting that (1) Hedgecock did not owe a duty of reasonable care to plaintiffs, (2) as a matter of law, the accident was not foreseeable and Hedgecock's conduct was not a legal cause of plaintiffs' injuries, and (3) defendants were statutorily immune from liability. Defendants maintained that Hedgecock owed no duty of reasonable care to plaintiffs, because Hedgecock's alleged responsibility for plaintiffs' injuries arose merely from a failure to protect plaintiffs from injury (which defendants characterized as a negligent omission or nonfeasance), and because Hedgecock assertedly did not have the requisite special relationship with plaintiffs on which negligence liability for failure to provide such protection could be based. Defendants also contended that the undisputed facts established as a matter of law that Hedgecock was not negligent and that, in any event, his conduct was not a legal cause of plaintiffs' injuries. Finally, defendants argued that they were immune from liability under a number of statutory immunity provisions. (See Gov. Code, § 820.2, 821.6, 845.)

In support of their summary judgment motion, defendants submitted declarations of Hedgecock and Arnold Sidney, another CHP officer. Hedgecock stated in his declaration that he decided to stop the Camry in the 10-foot-wide, asphalt-surfaced center median because the distance that the Camry had to travel to the center median was considerably less than the distance to the right shoulder, and because he believed that stopping the vehicle in the center median posed a lesser hazard to him and to the Camry's occupants than stopping the vehicle on the right shoulder, which at that location was only approximately eight feet wide. 2Link to the text of the note Hedgecock indicated that at the time he directed the Camry's driver to pull into the center median, he was aware that there was traffic immediately behind him in the center lane and "quite a lot of traffic" in the right-hand lane. Hedgecock also declared that CHP procedures gave him discretion whether to stop a traffic violator in the median area or on the right shoulder (the declaration stated that "[i]t is basically up to the officer to select a safe place to make a traffic stop"), and that he previously had stopped vehicles in that vicinity in both the center median and on the right shoulder. Finally, Hedgecock indicated that at the time he directed the Camry to pull into the center median, he had no knowledge of prior accidents having occurred within the center median in that vicinity.

In his separate declaration, Sidney stated that he had been a CHP officer since 1969, had been trained in CHP motorcycle patrol procedures, and had been instructed that a motorcycle patrol officer has discretion to make a traffic enforcement stop in the median area, particularly if the violator's vehicle is traveling in the fast lane. Sidney further stated that he subsequently had received specialized training and had become a certified motorcycle training officer, and that in 1991 he had trained Hedgecock in CHP motorcycle patrol procedures and had instructed Hedgecock that a traffic stop in the median area is appropriate if the violator is in the fast lane and if the officer believes a stop in the median area is safer. Sidney's declaration also explains in some detail why, in his opinion, a stop in the median area may be particularly appropriate when the stop is made by a motorcycle officer rather than by an officer in a patrol car. 3Link to the text of the note Finally, Sidney stated that based upon his review of Hedgecock's declaration, the accident report, photographs of the accident scene and involved vehicles, and the CHP Departmental Motorcycle Manual and CHP Officer Safety Manual, in his opinion Hedgecock had acted reasonably and with a proper exercise of discretion in directing Michael Lugtu to stop within the center median area of Highway 78.

In response to defendants' motion for summary judgment, plaintiffs filed a lengthy opposition. Plaintiffs initially maintained that defendants' claim that Hedgecock owed no legal duty of care to plaintiffs rested on a mischaracterization of the basis of Hedgecock's alleged liability, and asserted that the alleged negligent conduct of Hedgecock at issue in this case involved an affirmative act of misfeasance--directing the driver of the vehicle in which they were passengers to stop the vehicle in an assertedly dangerous location--rather than an act of omission or nonfeasance as argued by defendants. Second, plaintiffs insisted that the question whether Hedgecock had been negligent or instead had exercised due care in directing the driver of the Camry to stop in the center median could not be decided as a matter of law, but instead clearly presented a triable question of fact for the jury's determination. In this regard, plaintiffs vigorously disputed the assertion in Hedgecock's and Sidney's declarations that the applicable CHP procedures gave CHP officers discretion to stop a vehicle either in the center median or on the right shoulder, maintaining that the applicable CHP Officer Safety Manual flatly contradicted that assertion by explicitly providing that "[a]fter determining that a driver is to be stopped, effective techniques should be used to ensure stopping on the right shoulder rather than in the median or in a traffic lane." Plaintiffs additionally asserted that the question whether Hedgecock's negligence was a legal cause of plaintiff's injuries presented a triable issue of fact for the jury and could not be determined as a matter of law. Finally, plaintiffs maintained that the governing precedents interpreting the statutory immunity provisions relied upon by defendants established that the immunity afforded by each of those statutes did not apply to the conduct of defendants at issue in this case.

In support of their opposition to the summary judgment motion, plaintiffs submitted a declaration of Joseph Thompson (a former CHP officer and CHP accident investigation supervisor), a copy of chapter 10 of the CHP Officer Safety Manual, a copy of the accident report, and brief excerpts from the depositions of Hedgecock and Sidney.

Thompson stated in his declaration that he had been employed by the CHP from 1959 through 1982 both as a motorcycle and patrol car officer and as an accident investigator and supervisor, and in the latter capacity had been responsible for conducting more than 2,000 accident investigations. Thompson stated he was "extremely familiar" with the CHP Officer Safety Manual in effect at the time of the accident, and that the manual, and all CHP motorcycle and patrol car training, "mandate[s] that routine traffic enforcement stops on California freeways shall be made by directing all violators over to the right shoulder for purposes of violator and officer protection." Thompson further stated that "[s]topping a violator in the center median lane of a California freeway is not permitted by the [CHP] Officer Safety Manual as this creates a substantial risk of harm to the violator as well as the patrol officer due to the increased speed of vehicles in the inside/fast or number one lane of travel." Thompson's declaration further explained in this regard that "[t]he center median lane is for emergency vehicles only and users of the freeway do not expect to see a routine traffic stop being enforced in the center median lane. The sight of a traffic enforcement stop being conducted in the center median startles users of the freeway in the number one or fast lane of traffic causing them to lose control of their vehicles."

Moreover, in contrast to the views expressed by Sidney in his declaration, Thompson's declaration stated that the CHP manuals and training make "no distinction between motorcycle and patrol car officers in how to make a routine traffic stop from all lanes of the freeway" (original underlining), and that nothing in the applicable motorcycle manual allows for officer discretion in this regard. Finally, Thompson stated in his declaration that, based upon his review of the depositions of Hedgecock and Sidney, the accident report, the CHP Departmental Motorcycle Manual, and the CHP Officer Safety Manual (in particular, chapter 10, pertaining to patrol and enforcement on the freeway), in Thompson's opinion "Officer Hedgecock was negligent by violating the California Highway Patrol enforcement techniques in directing Michael Lugtu to the center median lane instead of over to the right shoulder," and that in doing so Hedgecock "substantially increased the risk of harm to the occupants in the Lugtu vehicle and to the officer."

In addition to Thompson's declaration, plaintiffs submitted a copy of chapter 10 of the CHP Officer Safety Manual, entitled Patrol and Enforcement on the Freeway, which states in relevant part:

"3. Enforcement Techniques.

"a. Stopping the Violator.

"(1) After determining that a driver is to be stopped, effective techniques should be used to ensure stopping on the right shoulder rather than in the median or in a traffic lane. Because of the hazards of high speed and traffic volume on modern freeways, the officer must be aware of his/her primary responsibility to control traffic approaching from the rear when attempting to stop a violator. Under these conditions, one error by a single driver can cause multiple traffic collisions. Special and unique methods have been developed which materially reduce the hazards involved in directing the violator from a high-speed traffic lane to a position of safety. The following procedures should be used whenever possible. [P] . . . [P]

"(b) The patrol vehicle should normally be offset slightly to the right and to the rear of the violator's vehicle to permit evasive action if it becomes necessary and also to provide a protected lane for the violator's safe movement to the right. The rear amber warning light should be used at this time to warn following traffic of the impending stop. . . .

"(2) When difficulties arise in gaining [the] violator's attention, it may be necessary to pull abreast, preferably on the right side, in order to attract the driver's attention. . . .

"(a) The moment the violator looks and identifies the patrol unit, the officer should apply the brakes slightly. No matter how the fast the violator's reflexes are, the officer then has control of the situation and can slow down as necessary.

"(b) The driver should be directed by the use of the hand gesture to the right lane. During a violator's transition to the right, traffic should be held back in adjacent lanes by the use of the rear amber light, turn signals and hand gestures. . . .

"(c) If the driver's attention is not gained in time to stop at a desired stopping location, he/she should be permitted to proceed, if practicable, to the next safe stopping location. . . . [P] . . . [P]

"(3) If possible, ensure a violator does not stop in the roadway or park in the median divider. All stops on freeways should be made completely off the roadway and as inconspicuously as possible to minimize the possibility of a traffic slowdown. . . .

"(4) When a violator stops in the center divider, the officer must make a decision whether to handle the transaction there or request a move to a safer location. Factors to be considered are divider width, traffic speed, traffic density, and other surrounding circumstances. The ultimate question is 'Are the hazards of conducting the stop in the center divider more or less than moving the violator across multiple freeway lanes?'

"(5) Avoid stopping motorists where restricted shoulders or heavy congestion exists. The stop should be delayed until a safe location is reached. . . ." (CHP, Officer Safety Manual (July 1991 rev.) pp. 10-3 to 10-6, italics added.) 4Link to the text of the note

Defendants thereafter filed a reply to the opposition, attaching additional portions of the CHP Officer Safety Manual that defendants maintained (1) demonstrated that the manual should not be interpreted, as Thompson had suggested, as mandating that all traffic stops on a highway be made on the right shoulder rather than the center median, but rather should be interpreted to grant a CHP officer discretion in this matter, and (2) further supported their contention that Hedgecock's conduct was reasonable and not negligent. 5Link to the text of the note Defendants also submitted additional excerpts from Sidney's deposition, in which Sidney stated that when the CHP Officer Safety Manual uses the word "should" rather than "shall," the manual "is leaving the officer with an option and his best judgment to do what the situation may call [for]."

After considering defendants' motion, plaintiffs' opposition, defendants' reply, and the supporting declarations and other submitted material, the trial court granted summary judgment in favor of defendants, concluding that "Hedgecock had no duty to stop plaintiffs on the right shoulder as a matter of law and there is no triable issue of fact as to whether Hedgecock acted with due care or whether his conduct was a legal cause of plaintiffs' injuries. In addition, even assuming a duty, lack of due care, and causation, defendants are immune from liability."

On appeal, the Court of Appeal reversed, concluding that Hedgecock owed plaintiffs a legal duty of reasonable care when he directed the driver of the Camry to stop the vehicle in a particular location, and that, in view of the provisions of the CHP Officer Safety Manual and the conflicting declarations that were before the trial court, there was a triable issue of fact whether Hedgecock was negligent and, if so, whether that negligence was a legal cause of plaintiffs' injuries. Finally, the Court of Appeal concluded that defendants' claims of statutory immunity lacked merit.

Defendants sought review in this court, limiting their challenge to the negligence issue, with particular attention to the Court of Appeal's conclusion on the question of duty. 6Link to the text of the note We granted review to address these points.

We begin with the issue of duty. (See generally Davidson v. City of Westminster (1982) 32 Cal. 3d 197, 202-203 [185 Cal. Rptr. 252, 649 P.2d 894].)

Under the provisions of the California Tort Claims Act, "a public employee is liable for injury caused by his act or omission to the same extent as a private person," except as otherwise specifically provided by statute. ( Gov. Code, § 820 , subd. (a), italics added.) In addition, the Tort Claims Act further provides that "[a] public entity is liable for injury proximately caused by an act or omission of an employee of the public entity within the scope of his employment if the act or omission would . . . have given rise to a cause of action against that employee," unless "the employee is immune from liability." ( Gov. Code, § 815.2, subds. (a), (b), italics added.) Because it is undisputed that Hedgecock was acting within the scope of his employment when he engaged in the conduct at issue in this case, the initial question of duty, and defendants' potential liability for Hedgecock's conduct, turns on ordinary and general principles of tort law.

Under general negligence principles, of course, a person ordinarily is obligated to exercise due care in his or her own actions so as not to create an unreasonable risk of injury to others, and this legal duty generally is owed to the class of persons who it is reasonably foreseeable may be injured as the result of the actor's conduct. ( Civ. Code, § 1714; see generally Rest.2d Torts, § 281; Prosser & Keeton on Torts (5th ed. 1984) § 31, p. 169; 3 Harper et al., The Law of Torts (2d ed. 1986) § 18.2, pp. 654-655.) It is well established, moreover, that one's general duty to exercise due care includes the duty not to place another person in a situation in which the other person is exposed to an unreasonable risk of harm through the reasonably foreseeable conduct (including the reasonably foreseeable negligent conduct) of a third person. (See, e.g., Schwartz v. Helms Bakery Limited (1967) 67 Cal. 2d 232, 240-244 [60 Cal. Rptr. 510, 430 P.2d 68]; Richardson v. Ham (1955) 44 Cal. 2d 772, 777 [285 P.2d 269]; see generally Rest.2d Torts, §§ 302, 302A. 7Link to the text of the note ) It is this duty that plaintiffs alleged was breached by Hedgecock.

In their summary judgment motion, however, defendants asserted that Hedgecock owed no duty of care to plaintiffs because "[t]he alleged failure of defendant Hedgecock to protect plaintiffs from injury by defendant Neeb is, at most, a negligent omission, or nonfeasance," and because there assertedly was no "special relationship" between Hedgecock and plaintiffs that would support the imposition of liability on the basis of such an omission. We agree with plaintiffs that this argument rests upon a fundamental mischaracterization of the basis of Hedgecock's alleged responsibility for plaintiffs' injuries.

It is true that the duty plaintiffs rely upon is said to be restricted to instances of misfeasance, not nonfeasance. As this court explained in Weirum v. RKO General, Inc. (1975) 15 Cal. 3d 40, 49 [123 Cal. Rptr. 468, 539 P.2d 36], however, "[m]isfeasance exists when the defendant is responsible for making the plaintiff's position worse, i.e., defendant has created a risk. Conversely, nonfeasance is found when the defendant has failed to aid plaintiff through beneficial intervention." In this case, unlike the cases relied upon by defendants, plaintiffs' cause of action does not rest upon an assertion that defendants should be held liable for failing to come to plaintiffs' aid, but rather is based upon the claim that Hedgecock's affirmative conduct itself, in directing Michael Lugtu to stop the Camry in the center median of the freeway, placed plaintiffs in a dangerous position and created a serious risk of harm to which they otherwise would not have been exposed. Thus, plaintiffs' action against Hedgecock is based upon a claim of misfeasance, not nonfeasance.

Consistent with the basic tort principle recognizing that the general duty of due care includes a duty not to expose others to an unreasonable risk of injury at the hands of third parties, past California cases uniformly hold that a police officer who exercises his or her authority to direct another person to proceed to--or to stop at--a particular location, owes such a person a duty to use reasonable care in giving that direction, so as not to place the person in danger or to expose the person to an unreasonable risk of harm. Thus, for example, in Williams v. State of California (1983) 34 Cal. 3d 18 [192 Cal. Rptr. 233, 664 P.2d 137], this court recognized that although law enforcement officers, like other members of the public, generally do not have a legal duty to come to the aid of a person, in carrying out routine traffic enforcement duties or investigations, a duty of care does arise when an officer engages in "an affirmative act which places the person in peril or increases the risk of harm as in McCorkle v. Los Angeles (1969) 70 Cal. 2d 252 [74 Cal. Rptr. 389, 449 P.2d 453], where an officer investigating an accident directed the plaintiff to follow him into the middle of the intersection where the plaintiff was hit by another car." (34 Cal. 3d at p. 24, italics added.)

The Court of Appeal recognized this same principle in Whitton v. State of California (1979) 98 Cal. App. 3d 235 [159 Cal. Rptr. 405, 17 A.L.R.4th 886]. In that case, CHP officers had made a traffic stop of the plaintiff's automobile on the right shoulder of a highway, parking their patrol car 10 to 15 feet behind the plaintiff's vehicle, and a drunk driver subsequently struck the patrol car, propelling it into the plaintiff while she was standing between the patrol car and her own vehicle. Although the Court of Appeal in Whitton found that sufficient evidence supported the jury's determination that, under the circumstances of the case, the officers had acted with reasonable care and thus should not be held liable, that court explicitly recognized that the CHP officers, in making the traffic stop, had a duty "to perform their official duties in a reasonable manner." ( Id. at p. 241; see also Reed v. City of San Diego (1947) 77 Cal. App. 2d 860, 866-867 [177 P.2d 21] [upholding jury verdict imposing liability upon police department where officers' negligence in positioning their patrol car during a traffic stop resulted in an injury to the stopped motorist when a third car collided with the police vehicle].) Other states also have recognized that law enforcement officers, in making a traffic stop, have a legal duty to exercise due care for the safety of those whom they stop and may incur liability when their failure to exercise such care exposes a person to injury at the hands of another motorist. (See, e.g., Kaisner v. Kolb (Fla. 1989) 543 So.2d 732, 734-736; Kinsey v. Town of Kenly (1965) 263 N.C. 376 [139 S.E.2d 686, 688-690].)

Accordingly, we conclude that, under California law, a law enforcement officer has a duty to exercise reasonable care for the safety of those persons whom the officer stops, and that this duty includes the obligation not to expose such persons to an unreasonable risk of injury by third parties. The summary judgment in favor of defendants cannot be sustained on the ground that Hedgecock owed no legal duty of care to plaintiffs.

III

Although defendants argued in their summary judgment motion that a law enforcement officer in making a traffic stop on a highway owes no duty of care to the persons he or she stops, in their briefs before this court defendants have modified their position and now ask this court to adopt a rule that "the duty of a law enforcement officer who has made a traffic enforcement stop entirely off of the travel lanes of a freeway [does] not extend to liability for a traffic collision in which a third party's vehicle subsequently strikes the car stopped by the officer."

As this court explained in Ramirez v. Plough, Inc. (1993) 6 Cal. 4th 539, 546 [25 Cal. Rptr. 2d 97, 863 P.2d 167, 27 A.L.R.5th 899], it is more accurate to view defendants' present argument not as relating to the threshold question of the existence of a duty itself--defendants no longer claim that an officer owes no duty of care to passengers in a vehicle stopped by the officer--but rather as relating to the appropriate "standard of care." 8Link to the text of the note Defendants argue in essence that we should declare, as part of the governing standard of care, that a law enforcement officer, in making a traffic stop on a highway, always satisfies the duty of reasonable care so long as the officer stops a vehicle at any location off of the travel lanes of a highway--without regard to whether the stop is made in the center median of a freeway or on the right shoulder, and apparently also without regard to the width of the median or shoulder on which the stop is made, how far off the roadway the stopped car is located, the visibility of the stopped vehicle to oncoming traffic at the location of the stop, or any other potentially relevant circumstance.

From a commonsense perspective, defendants' proposal has little to recommend it. It is counterintuitive to suggest that an officer's conduct should be considered prudent whenever the officer stops a vehicle in the center median of a highway so long as the vehicle that the officer has stopped is not actually in the travel lane of the highway, no matter how narrow the center median strip and how little room there is between the stopped vehicle and the approaching traffic. Indeed, under the defendants' formulation, a law enforcement officer's conduct would be deemed to satisfy the duty of reasonable care even if the center median of a highway is very narrow and the right shoulder generously wide, and even if there is no barrier to traffic traveling in the other direction, and the officer chooses the sole location that is not readily visible to oncoming traffic. Defendants fail to cite any decision in California or in any other jurisdiction--and our research has disclosed none--that defines in such a manner the standard of care applicable to a traffic stop on a highway.

Moreover, defendants are unable to point to any legislative or administrative pronouncement accepting their claim that considerations of "public policy" support the rule they propose. Defendants' reliance upon this court's decision in Ramirez v. Plough, Inc., supra, 6 Cal. 4th 539, is misplaced. In that case, we relied upon "the dense layer of state and federal statutes and regulations that control virtually all aspects of the marketing of [the defendant drug manufacturer's] products" ( id. at p. 548), as well as our assessment that "[d]efining the circumstances under which warnings or other information should be provided in a language other than English is a task for which legislative and administrative bodies are particularly well-suited" ( id. at p. 550), in concluding that a drug manufacturer satisfies its duty to warn of adverse side effects by providing such warnings in English, as required by the applicable federal and state regulations. (See fn. 9.), In the present case, by contrast, no legislative, administrative, or other official pronouncement indicates that an officer fully satisfies his or her duty of due care in making a traffic stop so long as the officer stops the vehicle off the travel lane of a freeway, regardless of the configuration of the area in which the stop is made or the ready availability of alternative, safer sites in which the stop could have been made. 9Link to the text of the note

Indeed, not only is there no statute or regulation that supports defendants' contention, but the provisions of the CHP Officer Safety Manual submitted by plaintiffs appear fundamentally inconsistent with defendants' position. As indicated by the lengthy quotation set forth above, the CHP Officer Safety Manual clearly establishes at the very least a general preference for directing a cited vehicle to the right shoulder of a highway, rather than to the center median. All of the manual's references to stops in the median appear to refer only to instances in which a motorist stops in the center median on his or her own volition, presumably without the officer's direction to do so. And even in such instances, the officer is advised to consider directing the driver to move to a safer location. No provision in the manual establishes that the officer acts properly or with due care so long as he or she stops a vehicle entirely within a center median strip.

In considering the effect that the provisions of the CHP Officer Safety Manual should have in the present case, it is important to keep in mind the appropriate role that the provisions of such a safety manual may play in a negligence action under California law. Under Evidence Code section 669.1, 10Link to the text of the note the provisions of the CHP Officer Safety Manual may not properly be viewed as establishing the applicable standard of care, but they may be considered by the trier of fact in determining whether or not an officer was negligent in a particular case. The manual cannot be read to establish the standard of care, because there is no indication that the manual was adopted pursuant to the state (or federal) Administrative Procedure Act. Absent such adoption, Evidence Code section 669.1 forbids the use of the manual to establish the presumption of negligence that otherwise would arise under Evidence Code section 669. At the same time, Evidence Code section 669.1 specifies that this statute is not intended to affect the admissibility of such a manual into evidence, and thus it is clear that the manual may be considered as evidence on the question of negligence. (See, e.g. , Bullis v. Security Pac. Nat. Bank (1978) 21 Cal. 3d 801, 809 [148 Cal. Rptr. 22, 582 P.2d 109, 7 A.L.R.4th 642].) 11Link to the text of the note

Because the relevant provisions of the CHP Officer Safety Manual submitted by plaintiffs indicate, at the least, a strong preference for stopping a vehicle on the right shoulder rather than in the center median, and advise officers to consider carefully whether to require a motorist to move the vehicle from the center median even when the driver stops on the center median on his or her own volition, we cannot accept defendants' assertion that considerations of public policy support the adoption of a standard of care under which a CHP officer never could be found to have violated the duty of care so long as he or she stops a vehicle off the travel lanes of a freeway, without regard to any other relevant factor that may affect the reasonableness of the officer's action. Instead, as in negligence cases generally, we believe that the applicable standard of care by which the officer's conduct must be measured in this context is simply that "of a reasonably prudent person under like circumstances." ( Ramirez v. Plough, Inc., supra, 6 Cal. 4th 539, 546-547, and cases cited.)

In arguing that considerations of public policy justify the adoption of the narrow standard of care that they propose, defendants apparently fear that the application of ordinary negligence principles in the present context will impair the ability of CHP officers to carry out their responsibilities and will result in an inordinate financial liability to the state, because juries will be too ready to second-guess police officers in the exercise of their discretion in making traffic stops. To the extent that past cases provide any guidance, this limited precedent does not support defendants' prediction. As noted above, in Whitton v. State of California, supra, 98 Cal. App. 3d 235--probably the closest California case on point--the jury returned a verdict against a plaintiff who had been injured by a drunk driver as she was stopped for a traffic violation. The jury found that the CHP officers who had stopped the plaintiff's car (on the right shoulder of the highway) and, after detecting alcohol on the plaintiff's breath, conducted a sobriety test on the plaintiff as she stood between her vehicle and the patrol car, were not negligent. As Whitton demonstrates, the various considerations that an officer is required to take into account in deciding when and where to make a traffic stop, and how to conduct an investigation after the stop, are not beyond the understanding or experience of most jurors, and there is little reason to suspect that juries in general will not grant an officer engaged in law enforcement duties appropriate leeway in assessing the reasonableness of the officer's conduct.

In sum, we find no justification for the limitation on the ordinary standard of care that defendants propose. Of course, if the Legislature determines that the application of general common law negligence principles in this setting is undesirable or detrimental, it remains free to fashion an appropriate response, either through the creation of a statutory immunity or the promulgation of a legislatively prescribed standard of care. In the absence of such legislative action, we conclude that the ordinary negligence standard of care should apply in this context.

Defendants further contend that even if, as we have concluded above, Hedgecock's conduct must be evaluated under the ordinary standard of reasonable care, the summary judgment in their favor should be upheld on the theory that the trial court correctly found that the undisputed facts establish, as a matter of law, that Hedgecock was not negligent under that standard. As this court recently explained in Aguilar v. Atlantic Richfield Co. (2001) 25 Cal. 4th 826, 850 [107 Cal. Rptr. 2d 841, 24 P.3d 493], "the 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. . . . There is a triable issue of material fact if . . . the evidence would allow a reasonable trier of fact to find the underlying fact in favor of the party opposing the motion in accordance with the applicable standard of proof."

In support of their claim that no triable issue of fact existed on the question whether Hedgecock was negligent, defendants stress that it is undisputed that (1) the center median was wider than the right shoulder at the location where the stop in this case was made, (2) the Camry was traveling in the fast lane and thus a stop in the center median did not require the Camry to cross other lanes of traffic, whereas a stop on the right shoulder would have required the Camry to cross two lanes of traffic, and (3) the weather and visibility were good, reducing the risk that oncoming traffic might not see a stopped vehicle in the median strip.

All of the circumstances upon which defendants rely clearly are relevant to the determination whether defendants were negligent and properly could persuade a jury that Hedgecock was not negligent in stopping the Camry as he did. Nonetheless, the declarations and other evidence presented by plaintiffs in opposition to the summary judgment motion constitute evidence from which a jury could come to a contrary conclusion, thus raising a triable issue of fact on the question of negligence.

First, the provisions of the CHP Officer Safety Manual constituted evidence from which a jury could find that stops in the center median, as a general matter, create a greater risk of injury than stops on the right shoulder, and that, absent unusual circumstances, an officer in the exercise of reasonable care ordinarily should stop a vehicle on the right shoulder. As discussed above, although under Evidence Code section 669.1 a jury determination that Hedgecock had violated the provisions of the CHP Officer Safety Manual would not raise a presumption of negligence, that statute does not preclude a jury from taking into account the provisions of the manual in determining whether Hedgecock was or was not negligent under the circumstances of this case.

Second, the declaration of Thompson, a former CHP officer and former accident investigator and investigation supervisor, also constitutes evidence that would support a jury finding that Hedgecock was negligent. As noted above, Thompson stated in his declaration that stops in the center median of a highway pose a greater danger than stops on the right shoulder, because oncoming vehicles are less likely to expect to see cars or motorcycles stopped in the center median and thus are more likely to be distracted by such an event. He further stated that because vehicles traveling in the left lane of a freeway generally are traveling faster than those in the right lane, a driver in the left lane is more likely to lose control of his or her vehicle (and less likely to be able to avoid a collision) in the event the distraction leads the driver to swerve away from the stopped vehicle.

Third, a jury might find that although the existence of circumstances such as bad weather or an emergency could have made it reasonable for Hedgecock to direct the Camry to the center median, there was insufficient justification under the present circumstances for Hedgecock to subject plaintiffs to the risks inherent in such a stop--especially in view of the good weather and clear visibility prevailing at the time and location of the stop. Finally, particularly in light of the provisions of the CHP manual indicating that if a location is too dangerous the officer should delay the stop and wait for a safer location, a jury might conclude that if the width of the right shoulder at the particular area of the highway was not sufficient to permit the stop to be made safely on the right shoulder, the officer, in the exercise of reasonable care, should have permitted the Camry to proceed further and have stopped the vehicle at a location where the right shoulder was wider. 12Link to the text of the note

In sum, in light of the conflicting evidence relating to the requirements of CHP procedure in the situation presented, and the circumstance that the evidence disclosed by the declarations and counterdeclarations could support a jury's finding either that Hedgecock was not negligent or that he was negligent, the evidence before the trial court on the summary judgment motion clearly raised a triable issue for the jury's determination on the question of negligence. Indeed, as we have seen, the declarations of CHP Officer Sidney and former CHP Officer Thompson--both of whom had many years of experience in traffic enforcement--were in direct conflict on the ultimate question of whether Hedgecock was or was not negligent under the circumstances of this case. On this record, we conclude that the trial court erred in finding that the undisputed evidence established, as a matter of law, that Hedgecock was not negligent. 13Link to the text of the note

Finally, defendants argue that even if a triable issue of fact exists as to whether or not Hedgecock was negligent, the grant of summary judgment in their favor was nonetheless proper because even if the jury were to find that Hedgecock was negligent, the undisputed evidence established, as a matter of law, that Hedgecock's negligence was not a legal cause of plaintiffs' injuries. Defendants maintain in this regard that even if the jury were to find that Hedgecock breached his duty of due care and carelessly exposed plaintiffs to an unreasonable risk of harm, the conduct of the driver of the pickup truck--in diverting his eyes from the highway, drifting into the center median of the freeway, and ultimately colliding with the Camry--constitutes, as a matter of law, a superseding cause that relieves Hedgecock of responsibility for plaintiffs' injuries.

Defendants' contention lacks merit. It is well established that when a defendant's negligence is based upon his or her having exposed the plaintiff to an unreasonable risk of harm from the actions of others, the occurrence of the type of conduct against which the defendant had a duty to protect the plaintiff cannot properly constitute a superseding cause that completely relieves the defendant of any responsibility for the plaintiff's injuries. As the commentary to the Restatement Second of Torts explains: "The problem which is involved in determining whether a particular intervening force is or is not a superseding cause of the harm is in reality a problem of determining whether the intervention of the force was within the scope of the reasons imposing the duty upon the actor to refrain from negligent conduct. If the duty is designed, in part at least, to protect the other from the hazard of being harmed by the intervening force, or by the effect of the intervening force operating on the condition created by the negligent conduct, then that hazard is within the duty, and the intervening force is not a superseding cause." (Rest.2d Torts, § 281, com. h, p. 8; see, e.g., Haft v. Lone Palm Hotel (1970) 3 Cal. 3d 756, 769-770 [91 Cal. Rptr. 745, 478 P.2d 465]; McEvoy v. American Pool Corp. (1948) 32 Cal. 2d 295, 298-299 [195 P.2d 783].) As further explained in Soule v. General Motors (1994) 8 Cal. 4th 548 [34 Cal. Rptr. 2d 607, 882 P.2d 298], for an intervening act properly to be considered a superseding cause, the act must have produced "harm of a kind and degree so far beyond the risk the original tortfeasor should have foreseen that the law deems it unfair to hold him responsible." (Soule, at p. 573, fn. 9, 34 Cal. Rptr. 2d 607, 882 P.2d 298.)

Under these principles, it is clear that the trial court could not properly find, as a matter of law, that the conduct of the driver of the pickup truck constituted a superseding cause that relieves Hedgecock of any legal responsibility for plaintiffs' injuries. The risk of harm posed by the negligence of an oncoming driver is one of the foremost risks against which Hedgecock's duty of care was intended to protect. Accordingly, even if a jury were to determine that the driver of the pickup truck was negligent and that his negligence was a substantial and even predominant cause of plaintiffs' injuries, such a finding would not render the pickup driver's conduct a superseding cause that totally eliminates Hedgecock's responsibility for plaintiffs' injuries--although such a finding certainly would provide ample justification for the jury, in applying comparative fault principles, to apportion the bulk of responsibility for the accident to the pickup driver, rather than to the CHP officer. Indeed, the latter consideration provides a further reason to discount defendants' claim that a decision in plaintiffs' favor is likely to subject the state to substantial liability, because in most cases of this nature the great majority of fault is likely to be attributed to the third party, and not to the officer. (See Civ. Code, § 1431.2, subd. (a) ["In any action for personal injury, property damage, or wrongful death, based upon principles of comparative fault, the liability of each defendant for non-economic damages shall be several only and shall not be joint. Each defendant shall be liable only for the amount of non-economic damages allocated to that defendant in direct proportion to that defendant's percentage of fault . . . ."].)

Thus, for the reasons discussed above, we cannot sustain the summary judgment that was rendered in favor of defendants on the theory that Hedgecock's conduct, as a matter of law, was not the legal cause of plaintiffs' injuries.

The judgment of the Court of Appeal, reversing the trial court's grant of summary judgment in favor of defendants, is affirmed.

Kennard, J., Werdegar, J., and Chin, J., concurred.

Dissent by: BROWN

Dissent

BROWN, J.

I respectfully dissent.

Like the majority, I agree that a police officer owes a general duty of care to the passengers in a vehicle stopped by that officer.   I, however, believe the majority errs in formulating the appropriate standard of care.   Under the undisputed facts, Officer Hedgecock's legal duty to plaintiffs did not include a duty to stop plaintiffs somewhere other than the center median of the freeway.   Thus, Officer Hedgecock did not breach his legal duty to plaintiffs as a matter of law. Accordingly, I would reverse the judgment of the Court of Appeal and affirm the trial court's grant of summary judgment for defendants.

Like the existence of a legal duty, the scope of that duty is a question of law for the court. (Merrill v. Navegar, Inc. (2001) 26 Cal. 4th 465, 477 (Merrill).)   In discussing the scope of Officer Hedgecock's duty, the majority characterizes the issue as whether an officer "always satisfies" the duty of care by stopping a traffic violator "at any location off of the travel lanes of a highway." (Maj. opn., ante, at p. 718.) Relying exclusively on Ramirez v. Plough, Inc. (1993) 6 Cal. 4th 539 [25 Cal. Rptr. 2d 97, 863 P.2d 167, 27 A.L.R.5th 899] (Ramirez), the majority answers "no" because no legislative or administrative pronouncements support such a rule (maj. opn., ante, at pp. 718-721), and because the California Highway Patrol Officer Safety Manual (Safety Manual) indicates "a strong preference for stopping a vehicle on the right shoulder rather than in the center median" (maj. opn., ante, at p. 721).   The majority, however, engages in faulty analysis, and, in doing so, misstates the issue before the court.   The issue is not whether an officer satisfies his duty of care in every case by stopping a traffic violator off the lanes of a highway.   Rather, the issue is whether an officer satisfies his duty of care to the passengers of a car under the uncontested circumstances of this case when he stops their car in the median area. The answer should be "yes."

As an initial matter, the majority mistakenly assumes that the scope of a defendant's duty cannot depend on the particular facts of a case.   "In most cases, courts have fixed no standard of care for tort liability more precise than that of a reasonably prudent person under like circumstances." (Ramirez, supra, 6 Cal. 4th at p. 546.)   "[H]owever . . . in particular situations a more specific standard may be established by judicial decision, statute or ordinance." (Kentucky Fried Chicken of Cal., Inc. v. Superior Court (1997) 14 Cal. 4th 814, 824 [59 Cal. Rptr. 2d 756, 927 P.2d 1260].) Thus, " 'each case must be considered on its own facts to determine' " the scope of the legal duty owed by a defendant to a class of plaintiffs " 'to refrain from subjecting them to' " a given risk. (Dillon v. Legg (1968) 68 Cal. 2d 728, 742 [69 Cal. Rptr. 72, 441 P.2d 912, 29 A.L.R.3d 1316] (Dillon), italics added, quoting Hergenrether v. East (1964) 61 Cal. 2d 440, 445 [39 Cal. Rptr. 4, 393 P.2d 164].) Indeed, where the facts are undisputed, we have regularly affirmed summary judgment for a defendant even though the defendant owed a general duty of care to the plaintiff, because that general duty did not require the defendant to act any differently under the facts of the case. (See, e.g., Sharon P. v. Arman, Ltd. (1999) 21 Cal. 4th 1181, 1189-1199 [91 Cal. Rptr. 2d 35, 989 P.2d 121] (Sharon P.); Parsons v. Crown Disposal Co. (1997) 15 Cal. 4th 456, 477-483 [63 Cal. Rptr. 2d 291, 936 P.2d 70] (Parsons); Thompson v. County of Alameda (1980) 27 Cal. 3d 741, 753-758 [167 Cal. Rptr. 70, 614 P.2d 728, 12 A.L.R.4th 701] (Thompson); cf. Artiglio v. Corning Inc. (1998) 18 Cal. 4th 604, 616 [76 Cal. Rptr. 2d 479, 957 P.2d 1313] [affirming summary judgment because there was "no triable issue of fact concerning the scope of" defendant's duty under Rest.2d Torts, § 324A].)

The majority's second mistake lies in its exclusive focus on legislative or administrative pronouncements in formulating the standard of care. When determining the scope of a defendant's legal duty under the particular facts of a case, courts do not always rely on legislative or administrative pronouncements, but weigh all relevant public policy considerations. (See Merrill, supra, 26 Cal. 4th at p. 477.) As part of the weighing process, " 'foreseeability of risk [is] of . . . primary importance. . . .' " (Dillon, supra, 68 Cal. 2d at p. 739, italics added, quoting Grafton v. Mollica (1965) 231 Cal. App. 2d 860, 865 [42 Cal. Rptr. 306].) Foreseeability for purposes of the duty analysis, however, is different from foreseeability "in the fact-specific sense in which we allow juries to consider [the] question." (Parsons, supra, 15 Cal. 4th at p. 476, 63 Cal. Rptr. 2d 291, 936 P.2d 70.) "[A] court's task--in determining 'duty'--is not to decide whether a particular plaintiff's injury was reasonably foreseeable in light of a particular defendant's conduct, but rather to evaluate more generally whether the category of negligent conduct at issue is sufficiently likely to result in the kind of harm experienced that liability may appropriately be imposed." (Ballard v. Uribe (1986) 41 Cal. 3d 564, 573, fn. 6 [224 Cal. Rptr. 664, 715 P.2d 624].)

After determining the foreseeability of harm, courts typically balance foreseeability against other relevant policy considerations to determine the scope of a defendant's duty "within the factual context of a specific case." (Lopez v. McDonald's Corp. (1987) 193 Cal. App. 3d 495, 506 [238 Cal. Rptr. 436] (Lopez); see also Parsons, supra, 15 Cal. 4th at p. 476.) Relevant policy considerations include "the degree of certainty that the plaintiff suffered injury, the closeness of the connection between the defendant's conduct and the injury suffered, the moral blame attached to the defendant's conduct, the policy of preventing future harm, the extent of the burden to the defendant and consequences to the community of imposing a duty to exercise care with resulting liability for breach, and the availability, cost, and prevalence of insurance for the risk involved." (Rowland v. Christian (1968) 69 Cal. 2d 108, 113 [70 Cal. Rptr. 97, 443 P.2d 561, 32 A.L.R.3d 496].) "When public agencies are involved," courts may also consider " 'the extent of [the agency's] powers, the role imposed upon it by law and the limitations imposed upon it by budget.' " (Thompson, supra, 27 Cal. 3d at p. 750, quoting Raymond v. Paradise Unified School Dist. (1963) 218 Cal. App. 2d 1, 8 [31 Cal. Rptr. 847].) This lengthy list of policy considerations, however, is neither exhaustive (Lopez, at p. 506), nor mandatory (see, e.g., Sharon P., supra, 21 Cal. 4th at pp. 1191-1199 [analyzing legal duty without considering all the Rowland factors]; Ann M. v. Pacific Plaza Shopping Center (1993) 6 Cal. 4th 666, 678-680 [25 Cal. Rptr. 2d 137, 863 P.2d 207] (Ann M.) [same]).

Thus, where the relevant facts are undisputed, a court may define a more specific standard of care than the reasonably prudent person standard if the public policy considerations warrant it. In such cases, the court may be able to decide the case on summary judgment because the definition of a more specific standard of care often resolves an interrelated issue: whether a defendant breached his legal duty of care. " '[T]he question whether an act or omission will be considered a breach of duty . . . necessarily depends upon the scope of the duty imposed. . . .' " ( Federico v. Superior Court (1997) 59 Cal. App. 4th 1207, 1211 [69 Cal. Rptr. 2d 370], quoting Wattenberger v. Cincinnati Reds, Inc. (1994) 28 Cal. App. 4th 746, 751 [33 Cal. Rptr. 2d 732].) If a defendant's conduct satisfies the standard of care defined by the court as a matter of law under the undisputed facts of the case, then the defendant, by definition, has not breached any legal duty. Indeed, some of our early decisions rely on foreseeability of harm and other policy considerations to find no breach of a legal duty as a matter of law. (See, e.g., La Manna v. Stewart (1975) 13 Cal. 3d 413, 428-429 [118 Cal. Rptr. 761, 530 P.2d 1073] [a pedestrian had no duty to continuously look "in the direction of potential oncoming traffic" under the facts and could not breach her legal duty because the imposition of such a duty would have placed her in even greater danger]; Schmitt v. Henderson (1969) 1 Cal. 3d 460, 465-466 [82 Cal. Rptr. 502, 462 P.2d 30] [a pedestrian had no duty "to be alert to danger approaching him from behind" under the facts and could not breach his legal duty because there was no foreseeability of harm]; see also Putensen v. Clay Adams, Inc. (1970) 12 Cal. App. 3d 1062, 1077-1078 [91 Cal. Rptr. 319] [balancing "the likelihood of harm, and the gravity of the harm if it happens . . . against the burden of precaution which would be effective to avoid the harm" under the facts of the case may lead to a finding that the defendant did not breach his duty of care as a matter of law (italics omitted)].)

A survey of our more recent negligence cases further illustrates these principles at work. In Thompson, the County of Alameda released a juvenile offender into a neighborhood without warning police, other parents in the neighborhood or the juvenile's mother. The released offender later murdered the plaintiffs' son. (Thompson, supra, 27 Cal. 3d at p. 746.) Although we recognized that the county had a duty "to exercise reasonable care to protect all of its citizens" (id. at p. 753), we concluded that this duty did not include a duty to warn under the particular facts of the case (id. at pp. 756-758). We reached this conclusion "based in part on policy considerations and in part upon an analysis of 'foreseeability' within the context of this case." (Id. at p. 753, italics added.) We further acknowledged that the county may have had a duty to warn under different facts, i.e., if there had been "a prior threat to a specific identifiable victim." (Id. at p. 758.) Because the county lacked such a duty under the facts of this case and therefore could not, as a matter of law, breach its general duty of care, we dismissed the plaintiffs' negligence claim. (See ibid.)

More recently, we affirmed summary judgment for a defendant after defining a more specific standard of care under the particular facts of that case based on public policy considerations. In Parsons, the plaintiff claimed that the defendant's negligent operation of a garbage truck caused her to fall off her horse. (Parsons, supra, 15 Cal. 4th at p. 463.) Although we held that the defendant owed certain common law duties to the plaintiff, we concluded that these duties did not include a duty to guard against frightening horses under the circumstances presented. (Id. at p. 477.) Thus, the defendant, as a matter of law, did not breach its duty of care to the plaintiff. (Id. at p. 485.) We reached this conclusion by balancing the foreseeability of harm against relevant public policy considerations, including "the social utility of the defendant's conduct, and the consequences to the community of imposing a duty to guard against frightening [horses]." (Id. at p. 476.) We, however, acknowledged that the defendant could have been negligent for failing to guard against frightening horses under different factual circumstances. (See id. at pp. 477-478.)

We have also applied these same principles in affirming summary judgment for defendants in the premises liability context. In Sharon P., an assailant attacked the plaintiff in an underground parking garage. The plaintiff sued the owner of the premises and the operator of the parking garage, alleging, among other things, that the defendants negligently failed to provide adequate security. (Sharon P., supra, 21 Cal. 4th at p. 1185.) Although we acknowledged that the defendants had a duty to protect the plaintiff " 'against foreseeable criminal acts of third parties' " (id. at p. 1189, quoting Ann. M., supra, 6 Cal. 4th at p. 674), we affirmed summary judgment for the defendants (Sharon P., at p. 1199). To reach this result, we balanced the foreseeability of the attack against the efficacy of additional security measures and the resulting burden on the defendants. (See id. at pp. 1189-1199.) Based on this balancing, we concluded that the defendants had no duty to provide additional security measures under the undisputed facts. (Ibid.) Thus, the defendants, as a matter of law, did not breach their general duty of care to the plaintiff. (See id. at p. 1199.) We, however, implicitly recognized that a legal duty to provide additional security measures might exist under different facts, i.e., if there had been "prior similar incidents or other indications of a reasonably foreseeable risk of violent criminal assaults in that location." (Ibid.; see also Ann M., supra, 6 Cal. 4th at pp. 679-680 [the defendant had no duty to provide security guards absent notice of prior similar incidents].)

Thus, our case law establishes that public policy considerations may justify the definition of a more specific standard of care than the reasonably prudent person standard in certain cases where the relevant facts are undisputed. In such cases, a court may properly grant summary judgment for a defendant if the more specific standard establishes that the defendant could not have breached his legal duty as a matter of law. This is such a case.

I begin by considering the foreseeability of harm in the context of this case. Foreseeability must be analyzed "in terms of the totality of the circumstances facing the police officer at the scene." ( Dutton v. City of Pacifica (1995) 35 Cal. App. 4th 1171, 1175 [41 Cal. Rptr. 2d 816] (Dutton).) In the traffic enforcement context, any assessment of foreseeability must account for the inherent risk created by a routine stop because "neither police nor their employer [may] incur any liability by virtue of" the "original police decision to stop . . . a suspected wrongdoer." (Sparks v. City of Compton (1976) 64 Cal. App. 3d 592, 596 [134 Cal. Rptr. 684] (Sparks).) Any traffic enforcement stop "carries a risk of harm that a" negligent third party driver "will crash into the stopped vehicles." (Whitton v. State of California (1979) 98 Cal. App. 3d 235, 242 [159 Cal. Rptr. 405, 17 A.L.R.4th 886].) Thus, the foreseeability of harm created by an officer's execution of a stop must be measured in relation to the foreseeability of harm inherent in a routine stop. Otherwise, officers may be held liable for their decision to stop a suspected traffic violator and become insurers of the motorists they stop. (Ibid. [holding officers liable for the risks inherent in any traffic enforcement stop would result in "a liability-extending doctrine of 'risk in the air' "].)

These principles establish that the foreseeability of harm created by Officer Hedgecock's decision to stop plaintiffs in the median area was minimal to nonexistent. The relevant facts are undisputed. The weather was dry and visibility was good. The car occupied by plaintiffs was parked well within the median area. The median area was wider than the right shoulder, and the right shoulder was adjacent to a downward slope. Contrary to the general pronouncements of plaintiffs' expert, no admissible evidence in the record even suggests that a car parked in this particular median area was in fact less visible than a car parked on the right shoulder or that the driver of the truck that hit plaintiffs was in fact distracted by the presence of a vehicle in the median area. Although plaintiffs' expert observed that traffic in the lane closest to the median generally travels faster than traffic in the lane closest to the right shoulder, the record establishes that traffic in the number one lane was travelling only minimally faster than traffic in the other two lanes. Moreover, traffic in all lanes was moderately heavy. Finally, Officer Hedgecock had stopped traffic violators in the median area on numerous occasions without incident, and there was no evidence that accidents were more likely in the median area than on the right shoulder. Under these facts, the risk of harm to plaintiffs was no different from the risk of harm inherent in any traffic stop. Indeed, stopping plaintiffs on the right shoulder as suggested by the Safety Manual arguably would have increased the likelihood of harm to plaintiffs because they would have had to cross two busy lanes of traffic to reach the right shoulder. Holding that Officer Hedgecock might have breached his legal duty to plaintiffs under these circumstances creates the type of " 'Monday-morning quarterbacking' " that negligence law should avoid. (See Dutton v. City of Pacifica, supra, 35 Cal. App. 4th at p. 1175, quoting Williams v. State of California (1983) 34 Cal. 3d 18, 30 [192 Cal. Rptr. 233, 664 P.2d 137] (conc. and dis. opn. of Mosk, J.).)

The countervailing policy considerations also strongly support such a conclusion. By enacting numerous statutes relating to traffic safety (see, e.g., Veh. Code, § 21000- 23336), and by making police officers statutorily immune for their decision to stop a suspected traffic violator (Gov. Code, § 820.2; Sparks, supra, 64 Cal. App. 3d at p. 596), the Legislature has established a strong public policy in favor of enforcing the rules of the road. Indeed, rigorous enforcement of our traffic laws serves a vital public function by making "automobile driving less dangerous." (Breithaupt v. Abram (1957) 352 U.S. 432, 439 [77 S. Ct. 408, 412, 1 L. Ed. 2d 448].) Where, as here, the location of the stop was no more dangerous than any other available location, holding that an officer could breach his legal duty by stopping a traffic violator in one of those locations would create a "Catch-22" situation. No matter where the officer stopped the violator, he would arguably create a risk of harm and open himself and his employer to liability. Indeed, the majority carefully avoids any suggestion that Officer Hedgecock could have escaped liability by stopping plaintiffs on the right shoulder and offers no alternative location for the stop. If officers may incur liability no matter where they stop a traffic violator, they have less incentive to make stops, resulting in the reduced enforcement of our traffic laws. Rather than impede such police work, I would conclude that Officer Hedgecock, as a matter of law, satisfied his duty of care to plaintiffs under the circumstances presented here. (See Parsons, supra, 15 Cal. 4th at p. 476 [holding that the social utility of defendant's conduct overrode the foreseeability of harm].)

The Safety Manual does not dictate a contrary conclusion. Although the manual states a preference for stopping traffic violators on the right shoulder, it allows for officer discretion. For example, the manual's consistent use of the word "should"--rather than "shall"--implies that officers have discretion when deciding where to conduct a traffic enforcement stop. The manual also states that an officer, "if possible," should "ensure a violator does not . . . park in the median divider." Finally, the manual specifically addresses the situation where "a violator stops in the center divider" and states that the officer must decide whether the hazards of conducting the stop in the center median are greater than the hazards of moving the violator across multiple freeway lanes. Although this provision ostensibly covers situations where the violator stops in the median on his own volition, it implies that officers must do the same calculation when deciding where to stop a violator travelling in the lane farthest from the right shoulder. Because the manual does not conflict with my conclusions above, the admissibility of the manual as evidence of the standard of care (see Grudt v. City of Los Angeles (1970) 2 Cal. 3d 575, 588 [86 Cal. Rptr. 465, 468 P.2d 825]), does not preclude us from affirming summary judgment in defendants' favor on the uncontroverted facts.

Indeed, the majority's contrary conclusion will likely cause more problems than it will solve. By holding that discretionary provisions in a manual preclude summary judgment under the facts of this case, the majority creates a huge incentive for government agencies to discard or sanitize their manuals in an effort to minimize the possibility of open-ended tort liability. Such a result will likely have deleterious effects by depriving government employees of useful guides for doing their jobs.

The majority's reliance on the cited provisions of the Safety Manual may also have the perverse effect of increasing the number of accidents. (See Adams v. City of Fremont (1998) 68 Cal. App. 4th 243, 273 [80 Cal. Rptr. 2d 196][declining to impose a duty that would "likely result in more deaths or injuries"].) By ignoring the undisputed facts and reversing summary judgment solely based on the manual's suggestion to stop traffic violators on the right shoulder, the majority, in effect, creates a legal presumption for traffic stops on the right shoulder. As a result, officers will likely conduct all traffic stops on the right shoulder even though they are more familiar with the roads they patrol than this court. Where, as here, the right shoulder arguably creates a greater risk of accident than the median area, this judicially imposed limitation on officer discretion will likely increase the risk of harm. Consequently, the majority will likely cause more accidents than it prevents because its failure to provide officers with any meaningful guidance does nothing to reduce the possibility of such accidents.

The facts in this case are tragic, and I, like my colleagues, have great sympathy for plaintiffs, who suffered severe injuries through no apparent fault of their own. Nonetheless, I do not believe that Officer Hedgecock or the State of California should be held responsible for these injuries. Holding that a jury could find that Officer Hedgecock breached his legal duty under the facts of this case will not reduce the likelihood of such accidents in the future. Instead, such a holding will likely hinder enforcement of our traffic laws and may even increase the number of accidents. While I might conclude differently under another set of facts, I believe that Officer Hedgecock had no duty to stop plaintiffs in a different location under the undisputed facts presented here. Accordingly, he did not, as a matter of law, breach his legal duty to plaintiffs.

Baxter, J., concurred.

Footnotes

    1Link to the location of the note in the document

    The California Department of Transportation also was named as a defendant in a cause of action alleging a dangerous condition of public property, but plaintiffs later voluntarily dismissed the department as a defendant.

    2Link to the location of the note in the document

    Hedgecock's declaration further disclosed that the right shoulder was asphalt surfaced and 7.8 feet wide and was adjacent to a concrete dike, which was next to a downhill slope.

    3Link to the location of the note in the document

    Sidney's declaration states in this regard: "[M]otor vehicle drivers may not key in to the presence of the patrol motorcycle as well as drivers do to the presence of a patrol car; the throttle controlling speed of a patrol motorcycle is on the right handlebar grip; if the officer takes his or her right hand off the throttle to signal traffic behind the motorcycle and violator that the enforcement stop will take place on the right shoulder, the motorcycle will slow down, exposing the violator and the motorcycle patrol officer to potential danger from traffic behind them; although the vehicle immediately behind the motorcycle may slow in response to the slowing of the motorcycle, traffic further back may not see the motorcycle slowing, causing an accordion effect."

    4Link to the location of the note in the document

    As noted above, in addition to the declaration of Thompson and the passage from the CHP Officer Safety Manual, plaintiffs submitted a copy of the accident report and very brief excerpts of the depositions of Hedgecock and Sidney. In the excerpt from the Hedgecock deposition, Hedgecock acknowledged that after the incident there were discussions in his CHP office "concerning whether it was prudent to pull traffic over to the right versus left" and that someone in the discussion had indicated "something to the effect, 'Oh man, you always have to go to the right, never to the left.' " In the excerpt from the Sidney deposition, Sidney agreed that the traffic enforcement technique provisions of chapter 10 of the CHP Officer Safety Manual are applicable both to patrol cars and motorcycles.

    5Link to the location of the note in the document

    The additional excerpts of the CHP Officer Safety Manual submitted with defendants' reply included the following passage: "Foreword

    "This manual was developed in the interest of officer safety to assist members in performing their duties in a safe and professional manner. [P] The policies and procedures set forth have been established for the purpose of promoting the safety of the enforcement officer through the proper use of safety equipment and enforcement procedures. [P] The officer's safety is of the utmost concern and proper use of the techniques depicted in this manual should prove a valuable aid in minimizing injuries. [P] . . . [P] "Apprehension of the Misdemeanor Violator

    "1. Making the Stop.

    "a. Quick Apprehension. Upon observing a violation, the officer should stop the violator's vehicle as soon as possible. Many problems may be generated when the officer waits too long before stopping the violator.

    "(1) The farther the violator is pursued, the longer the officer is exposed to the hazard of high speed and his/her safety is greatly affected. [P] . . . [P]

    "(4) In the case of speed violations, among others, the defense can raise the point that if the speed was so dangerous, why did the officer permit the violator to continue for some distance rather than stop him/her promptly.

    "(b) Choosing a Safe Location. . . .

    "(1) The officer should pre-select a safe location to stop the violator, keeping in mind his/her own safety as well as that of the violator and the general public. [P] . . . [P]

    "4. Summary. Each traffic stop presents a slightly different set of circumstances to the officer. For overall officer safety, it is best to remember the basic concepts presented above rather than memorizing one method and performing each stop exactly alike. The officer who has a plan and is flexible to meet each situation is the officer who survives." (Original underlining.)

    6Link to the location of the note in the document

    Defendants' petition for review did not challenge the Court of Appeal's determination that the statutory immunity provisions relied upon by defendants in their summary judgment motion do not apply to the conduct of Hedgecock at issue in this case, and we thus do not address the issue of immunity.

    7Link to the location of the note in the document

    Section 302 of the Restatement Second of Torts provides: "A negligent act or omission may be one which involves an unreasonable risk of harm to another through either [P] (a) the continuous operation of a force started or continued by the act or omission, or [P] (b) the foreseeable action of the other, a third person, an animal, or a force of nature."

    Section 302A provides: "An act or an omission may be negligent if the actor realizes or should realize that it involves an unreasonable risk of harm to another through the negligent or reckless conduct of the other or a third person."

    8Link to the location of the note in the document

    As the court in Ramirez explained: "Issues such as this, which concern the scope of an established duty, are resolved by reference to the governing standard of care: 'Once the existence of a legal duty is found, it is the further function of the court to determine and formulate the standard of conduct to which the duty requires the defendant to conform.' (Rest.2d Torts, § 328B, com. f, p. 153.)" ( Ramirez v. Plough, Inc., supra, 6 Cal. 4th at p. 546.)

    9Link to the location of the note in the document

    Indeed, as the court explained in Ramirez v. Plough, Inc., supra, 6 Cal. 4th 539, 547-548, even when a defendant has complied with an applicable statute or regulation, "[c]ourts have generally not looked with favor upon the use of statutory compliance as a defense to tort liability. The Restatement Second of Torts summarizes the prevailing view in these terms: 'Where a statute, ordinance or regulation is found to define a standard of conduct for purposes of negligence actions, . . . the standard defined is normally a minimum standard, applicable to the ordinary situations contemplated by the legislation. This legislative or administrative minimum does not prevent a finding that a reasonable [person] would have taken additional precautions where the situation is such as to call for them.' [Citations.]" (See also 6 Witkin, Summary of Cal. Law (9th ed. 1988) Torts, § 756, p. 96, and cases cited.)

    10Link to the location of the note in the document

    Evidence Code section 669.1 provides in full: "A rule, policy, manual, or guideline of state or local government setting forth standards of conduct or guidelines for its employees in the conduct of their public employment shall not be considered a statute, ordinance, or regulation of that public entity within the meaning of Section 669, unless the rule, manual, policy, or guideline has been formally adopted as a statute, as an ordinance of a local governmental entity in this state empowered to adopt ordinances, or as a regulation by an agency of the state pursuant to the Administrative Procedure Act (Chapter 3.5 (commencing with Section 11340) of Division 3 of Title 2 of the Government Code), or by an agency of the United States government pursuant to the federal Administrative Procedure Act (Chapter 5 (commencing with Section 5001) of Title 5 of the United States Code). This section affects only the presumption set forth in Section 669, and is not otherwise intended to affect the admissibility or inadmissibility of the rule, policy, manual, or guideline under other provisions of law."

    11Link to the location of the note in the document

    The legislative history of Evidence Code section 669.1 confirms that the Legislature contemplated that the statute would permit a jury or other trier of fact to take the provisions of such a safety manual into account in determining in a particular case whether a public employee was negligent or not. (See Sen. Com. on Judiciary, Analysis of Sen. Bill No. 1598 (1985-1986 Reg. Sess.) as amended Aug. 20, 1987, p. 4 ["Under the bill, a violation of a rule or manual regarding a public employee's conduct would remain admissible as evidence of the employee's negligence. However, it would no longer give rise to a presumption of negligence."]; Assem. Com. on Judiciary, Analysis of Sen. Bill No. 1598 (1985-1986 Reg. Sess.) as amended Aug. 20, 1987, p. 3 ["Under this bill a violation of any state or local rule, policy, manual, or guideline not 'formally adopted' may continue to be admissible as evidence of an employee's negligence. However, the violation will not give rise to a presumption of negligence."].)

    12Link to the location of the note in the document

    In response to the latter argument, defendants could counter that Hedgecock's actions were reasonable in light of the CHP Officer Safety Manual's direction, in a separate provision, that "[u]pon observing a violation, the officer should stop the violator's vehicle as soon as possible." (See, ante, p. 714, fn. 5.)

    13Link to the location of the note in the document

    The dissenting opinion misapplies the standard of care concept in maintaining that a court, in determining the applicable standard of care, properly looks to such case-specific facts as whether "the weather was dry and visibility was good," whether the traffic was light or heavy in the various lanes of the highway at the time of the incident, or whether the particular officer had or had not made similar traffic stops in the past. (See dis. opn. of Brown, J., post, at pp. 731-732.) That approach to the standard of care issue effectively would eliminate the role of the jury in negligence cases, transforming the question of whether a defendant breached the duty of care under the facts of a particular case into a legal issue to be decided by the court under the standard of care rubric. The dissent's conclusion is more accurately characterized as a determination that the present record establishes, as a matter of law, that Officer Hedgecock was not negligent. As explained above, however, we believe that in light of the conflicting evidence and declarations, the record before the trial court on the summary judgment motion clearly raised a triable issue for the jury's determination on the question of whether Officer Hedgecock was or was not negligent under the circumstances of this case.

    The dissent also criticizes the opinion's treatment of the CHP Officer Safety Manual. (See dis. opn. of Brown, J., post, at pp. 732-734.) As explained above, however, the proper role that such a safety manual plays in a negligence case is governed by the provisions of Evidence Code section 669.1, and our consideration of the appropriate use of the manual follows the language and legislative history of that statute. (See, ante, pp. 720-721 & fns. 10, 11.) The dissent's position is inconsistent with the use that the Legislature contemplated for such a manual.

~~~~~~~~~~~~~~~

Lugtu v. California Highway Patrol

Court of Appeal of California, Fourth Appellate District, Division One

March 24, 2000, Filed

D032518

79 Cal. App. 4th 359

CECELIO LUGTU et al., Plaintiffs and Appellants, v. CALIFORNIA HIGHWAY PATROL et al., Defendants and Respondents.

Subsequent History:

Review Granted July 12, 2000 (S088116), Reported at: 2000 Cal. LEXIS 5212.

Reprinted without change in the January 2001 Review Granted Opinions Pamphlet to permit tracking pending review and disposition by the Supreme Ct.

Supreme Court of California Opinion of August 16, 2001, Reported at: 2001 Cal. LEXIS 5258.

Prior History:

APPEAL from a judgment of the Superior Court of San Diego County. Super. Ct. No. N76651. David B. Moon, Judge.

Counsel: Law Office of Steven W. O'Reilly and Charles B. O'Reilly, for Plaintiffs and Appellants.

Bill Lockyer, Attorney General, Pamela Smith-Steward, Chief Assistant Attorney General, Margaret A. Rodda, Assistant Attorney General, Kristin G. Hogue and Karen M. Walter, Deputy Attorneys General, for Defendants and Respondents.

Judges: McDONALD, J. WE CONCUR: HUFFMAN, Acting P.J., McINTYRE, J.

Opinion by: McDONALD

Opinion

In this case we determine that a law enforcement officer has a duty of reasonable care to the occupants of a motor vehicle when the officer stops the vehicle for a traffic violation.

Cecelio Lugtu, Zean Lugtu, Zeachelle Lugtu and Leah Cabildo (together Plaintiffs) appeal a judgment after the trial court granted the summary judgment motion of the State of California and Richard Hedgecock (together Defendants) in Plaintiffs' personal injury action against Defendants and others. Plaintiffs contend the trial court erred by finding: (1) Hedgecock did not owe Plaintiffs a duty of reasonable care; (2) no triable issues of material fact existed whether (a) Hedgecock acted with reasonable care or (b) Hedgecock's alleged negligence was a legal cause of Plaintiffs' injuries; and (3) Defendants are statutorily immune from liability. We reverse the judgment and remand for further proceedings consistent with this opinion.

FACTUAL AND PROCEDURAL BACKGROUND

On August 15, 1996, Hedgecock was a California Highway Patrol (CHP) motorcycle patrol officer on duty on Highway 78, which had three westbound lanes. Shortly before 5:00 p.m. he saw a Toyota Camry traveling westbound at an estimated speed of 85 miles per hour in the fast, or number one, lane. Hedgecock drove in the middle lane to a position beside the Camry, sounded his siren to attract the attention of its driver, and motioned to the driver to stop in the 10-foot wide center divider median area. The driver stopped the Camry in the median area. Hedgecock stopped his motorcycle 10 to 15 feet behind the Camry and turned off the motorcycle's lights. He walked to the driver's side of the Camry, which was about two feet from the concrete median barrier. There were three young girls in the backseat (Zean Lugtu, Zeachelle Lugtu, and Leah Cabildo) who were not restrained by seatbelts. Hedgecock issued a speeding citation to Michael Lugtu, the Camry's driver, and a safety belt citation to Cecelio Lugtu, who was sitting in the front passenger's seat. After writing the citations, Hedgecock noticed that the girl in the middle rear seat remained unrestrained and stated he would issue another citation if she were not restrained by a seat belt. Michael Lugtu got out of the Camry as Hedgecock began walking back to his motorcycle. The Camry had been stopped in the median area for about six to eight minutes at that time.

Hedgecock saw a westbound pickup truck drifting into the center median toward him and the Camry. As the truck approached, he waved and jumped up and down, trying to attract the attention of the truck's driver, James Neeb. The truck was partly in the median area and partly in the number one lane. Hedgecock dove over the concrete median barrier and heard a loud crashing noise. The truck struck the rear of the Camry. Hedgecock called for assistance and rendered aid to the Camry's occupants. Plaintiffs were seriously injured in the accident.

Plaintiffs filed a complaint against Defendants, Neeb, and Michael Lugtu, alleging a negligence cause of action. 1Link to the text of the note Defendants filed a motion for summary judgment, asserting that: (1) Hedgecock did not owe a duty of reasonable care to Plaintiffs; (2) as a matter of law, the accident was not foreseeable and Hedgecock's conduct was not a legal cause of Plaintiffs' injuries; and (3) Defendants were statutorily immune from liability. Defendants argued that Hedgecock owed no duty of reasonable care to Plaintiffs because his alleged conduct was merely a failure to protect Plaintiffs from injury, a negligent omission or nonfeasance, and he did not have the requisite special relationship with Plaintiffs on which negligence liability could be based. Defendants lodged declarations of Hedgecock and Arnold Sidney. Hedgecock stated in his declaration that he decided to stop the Camry in the median area because it was closer to the number one lane than to the right shoulder and was a lesser hazard to him and the Camry's occupants than stopping on the right shoulder. He stated that CHP procedures gave him discretion whether to stop a traffic violator in the median area or on the right shoulder. Sidney stated in his declaration that he had been a CHP officer since 1969, was trained on CHP motorcycle patrol procedures and was instructed that a motorcycle patrol officer had discretion whether to make a traffic enforcement stop in the median area. In 1991 Sidney trained Hedgecock on CHP motorcycle patrol procedures. He instructed Hedgecock that a traffic stop in the median area was appropriate if the violator was in the fast, or number one, lane and if he believed a stop in the median area would be safer. Sidney stated that based on his review of various documents, Hedgecock acted reasonably and within his discretion by stopping the car in the median area.

Plaintiffs opposed Defendants' motion for summary judgment, asserting that Hedgecock owed them a duty of reasonable care and whether Hedgecock exercised reasonable care and whether his conduct was a legal cause of their injuries were triable issues of fact. They also asserted that Defendants were not statutorily immune from liability. Plaintiffs argued they were not required to show a special relationship existed between Hedgecock and them as a requisite to the existence of Hedgecock's legal duty to use reasonable care in making a traffic stop. Plaintiffs also argued that the CHP officer safety manual (Manual) showed that traffic enforcement stops should be made on the right shoulder of highways rather than in the median area. Plaintiffs lodged a declaration of Joseph Thompson, chapter 10 of the Manual, a copy of the CHP's report on the accident, and excerpts from the depositions of Hedgecock and Sidney. Thompson stated in his declaration that he was employed by the CHP from 1959 through 1982 as an officer and as an accident investigator. He had been trained on motorcycle patrol procedures. He stated he was familiar with the Manual and it required all routine traffic stops to be made on the right shoulder of a highway and CHP officers had no discretion to direct a motorist to the center median area when making a traffic stop. Thompson stated that based on his review of documents, Hedgecock was negligent in directing the Camry's driver to stop in the center median area instead of on the right shoulder, and by so doing, Hedgecock substantially increased the risk of harm to the Camry's occupants. Thompson stated that the center median area was only for emergency vehicles; drivers on the freeway do not expect to see a routine traffic stop in the median and such stops could startle drivers, causing them to lose control of their vehicles.

Defendants asserted specific evidentiary objections to Thompson's declaration and the CHP's investigative report on the accident.

On October 21, 1998, the trial court issued its order granting Defendants' motion for summary judgment. The court stated:

"The court declines to rule on specific evidentiary objections. However, the court will disregard all evidence which is found to be incompetent or inadmissible. (See Biljac Associates v. First Interstate Bank (1990) 218 Cal. App. 3d 1410, 267 Cal. Rptr. 819.)

"Defendants' Motion for Summary Judgment is granted as defendant Hedgecock had no duty to stop Plaintiffs on the right shoulder as a matter of law and there is no triable issue of fact as to whether Hedgecock acted with due care or whether his conduct was a legal cause of Plaintiffs' injuries. In addition, even assuming a duty, lack of due care, and causation, defendants are immune from liability.

"The undisputed evidence demonstrates that Officer Hedgecock was not required by the [Manual] or internal procedures to stop Plaintiffs only on the right shoulder of the freeway and that stopping a vehicle in the center median area is acceptable CHP procedure under certain circumstances, pursuant to the Sidney declaration . . . . Therefore, as a matter of law, Defendants did not owe Plaintiffs a duty to stop them on the right shoulder only.

"Defendants cannot be found negligent for Hedgecock's actions unless Hedgecock failed to exercise due care in deciding to stop Plaintiffs in the center median area. In order to demonstrate a lack of due care, Plaintiff[s] must present evidence showing that Hedgecock had 'actual knowledge of some history that . . . an accident is likely to occur . . .' at that place. ( Whitton v. State of California (1979) 98 Cal. App. 3d 235, 242-243, 159 Cal. Rptr. 405.) The undisputed evidence demonstrates no such knowledge[.] (See the Hedgecock declaration . . . .)

"Similarly, because of a lack of foreseeability, Defendants' conduct was not a cause-in-fact or substantial factor in bringing about Plaintiffs' injuries. (Id.)

"Defendants are also not liable for any claimed nonfeasance in that there are no facts showing a special relationship existed between Defendants and Plaintiffs. Indeed, Plaintiffs concede in their opposition that the concept of special relationship has 'no applicability herein.' . . .

"Even assuming the existence of a duty, lack of due care, and causation, Defendants are immune from liability for discretionary acts pursuant to Government Code [section] 820.2. As is pointed out above, the undisputed evidence in this motion demonstrates that Officer Hedgecock's decision to stop Plaintiffs' car in the center median area of the freeway was a judgment call and an acceptable option, depending on the circumstances. In other words, it was a discretionary act subject to immunity pursuant to [Government] Code [section] 820.2."

The trial court entered judgment for Defendants.

Plaintiffs timely filed a notice of appeal.

DISCUSSION

I

Summary Judgment Standard of Review

The purpose of a motion for summary judgment is "to discover whether the parties possess evidence requiring the fact-weighing procedures of a trial." ( Appalachian Ins. Co. v. McDonnell Douglas Corp. (1989) 214 Cal. App. 3d 1, 10, 262 Cal. Rptr. 716.) Code of Civil Procedure section 437c, subdivision (c) provides that a motion for summary judgment must be granted "if all the papers submitted show that there is no triable issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." As a reviewing court, we conduct a de novo review to determine whether there are any genuine issues of material fact. (Appalachian Ins. Co., supra, at p. 11.) Also, an appellate court in reviewing a grant of summary judgment "must make its own independent determination of the construction and effect of the papers submitted [citation], and the validity of the ruling is reviewable irrespective of the reasons stated. [Citation.]" (Preis v. American Indemnity Co. (1990) 220 Cal. App. 3d 752, 757, 269 Cal. Rptr. 617.)

We strictly construe the moving party's papers and liberally construe those submitted by the opposing party. (Molko v. Holy Spirit Assn. (1988) 46 Cal. 3d 1092, 1107, 252 Cal. Rptr. 122, 762 P.2d 46.) "Doubts as to the propriety of summary judgment should be resolved against the moving party. [Citation.]" ( Salasguevara v. Wyeth Laboratories, Inc. (1990) 222 Cal. App. 3d 379, 383, 271 Cal. Rptr. 780.) Furthermore, "it is the moving party's burden to make a sufficient showing that the claim is entirely without merit and if that showing is deficient summary judgment must be denied. [Citation.]" ( Id. at p. 384.)

II

Liability of Public Employees and

Public Entities for Negligence Generally

Public employees are liable for injuries caused by their negligence to the same extent as private persons, except as otherwise specifically provided by law. ( Gov. Code, § 820.) 2Link to the text of the note Public entities are liable for the negligent acts of their employees who are acting within the scope of their employment, except as otherwise specifically provided by law. (§ 815.2.)

A cause of action for negligence requires a plaintiff to show the "defendant had a duty to use due care, that he breached that duty, and that the breach was the proximate or legal cause of the resulting injury. [Citation.]" (Nally v. Grace Community Church (1988) 47 Cal. 3d 278, 292-293, 253 Cal. Rptr. 97, 763 P.2d 948.) "Every [negligence] case is governed by the rule of general application that all persons are required to use ordinary care to prevent others from being injured as the result of their conduct." (Weirum v. RKO General, Inc. (1975) 15 Cal. 3d 40, 46, 123 Cal. Rptr. 468, 539 P.2d 36; Civ. Code, § 1714.) The existence of a legal duty to use reasonable care in a particular factual situation is a question of law for the court to decide. (Adams v. City of Fremont (1998) 68 Cal. App. 4th 243, 265; 6 Witkin, Summary of Cal. Law (9th ed. 1988) Torts, § 748, p. 83.) The elements of breach of that duty and causation are ordinarily questions of fact for the jury's determination. ( Andrews v. Wells (1988) 204 Cal. App. 3d 533, 538, 251 Cal. Rptr. 344; 6 Witkin, supra, § 749 at p. 86.)

A legal duty of reasonable care may arise out of either: (1) "the duty of a person to use ordinary care in activities from which harm might reasonably be anticipated" (i.e., misfeasance), or (2) an affirmative duty where the defendant has a special relationship with the plaintiff or others in plaintiff's class (i.e., nonfeasance). (6 Witkin, supra, § 732 at pp. 60-61.) "Thus, in considering whether a person had a legal duty in a particular factual situation, a distinction must be made between claims of liability based upon misfeasance and those based upon nonfeasance." (Andrews v. Wells, supra, 204 Cal. App. 3d at p. 539.) Weirum described the distinction between a legal duty arising out of action, or misfeasance, and inaction, or nonfeasance:

"Misfeasance exists when the defendant is responsible for making the plaintiff's position worse, i.e., defendant has created a risk. Conversely, nonfeasance is found when the defendant has failed to aid plaintiff through beneficial intervention. . . . Liability for nonfeasance is largely limited to those circumstances in which some special relationship can be established. If, on the other hand, the act complained of is one of misfeasance, the question of duty is governed by the standards of ordinary care discussed above." (Weirum v. RKO General, Inc., supra, 15 Cal. 3d at p. 49.)

In Jackson v. Ryder Truck Rental, Inc. (1993) 16 Cal. App. 4th 1830, at pages 1838-1839, the court stated:

"In determining whether the defendant owed a duty of due care to the plaintiff in a given case, the courts have applied the balancing test derived from Rowland v. Christian [(1968) 69 Cal. 2d 108, 112-113, 70 Cal. Rptr. 97, 443 P.2d 561]: '. . . The major [considerations] are the foreseeability of harm to the plaintiff, the degree of certainty [that] the plaintiff suffered injury, the closeness of the connection between the defendant's conduct and the injury suffered, the moral blame attached to the defendant's conduct, the policy of preventing future harm, the extent of the burden to the defendant and consequences to the community of imposing a duty to exercise care with resulting liability for breach, and the availability, cost, and prevalence of insurance for the risk involved.'"

The following additional factors are considered when a public entity is a defendant: "the extent of the agency's powers; the role imposed on it by law; and the limitations imposed on it by budget. [Citations.]" (Adams v. City of Fremont, supra, 68 Cal. App. 4th at p. 268.)

III

Hedgecock Owed Plaintiffs a Duty of Reasonable

Care When He Directed the Camry's Driver to Stop for a Traffic Violation

Plaintiffs contend Hedgecock owed them a duty of reasonable care when he directed the Camry's driver to stop for a traffic violation.

The parties do not cite, and we are unaware of, any California case that discusses the issue of a law enforcement officer's duty of reasonable care in stopping traffic violators. However, some California cases implicitly hold that the duty exists.

In Whitton v. State of California, supra, 98 Cal. App. 3d 235, the CHP officers stopped the plaintiff's car for a speeding violation. ( Id. at pp. 238-239.) The CHP officers parked their vehicle about 15 feet behind the plaintiff's car on the right shoulder of the highway and, while they questioned the plaintiff and administered sobriety tests, a third vehicle struck the CHP vehicle from behind, causing it to pin the plaintiff against her car. (Ibid.) The plaintiff filed a negligence action against the state and the CHP officers, but the jury found for the defendants. ( Id. at p. 238.) The trial court denied the plaintiff's motion for judgment notwithstanding the verdict. (Ibid.) On appeal the plaintiff contended substantial evidence did not support the jury's verdict and the trial court erred by denying her motion for judgment notwithstanding the verdict. ( Id. at p. 240.) She argued the CHP officers placed her in a zone of danger, improperly exposing her to a foreseeable risk of harm. (Ibid.) The Court of Appeal concluded there was substantial evidence to support the jury's finding that the officers acted in a reasonable manner. ( Id. at pp. 241-242.) It stated that it was a question of fact for the jury whether the officers acted in a reasonable manner. ( Id. at p. 241.) It further stated the officers had a duty "to perform their official duties in a reasonable manner," but that they need not exercise perfect judgment. (Ibid.) The jury's verdict "indicated that the jury accepted the substantial evidence that the officers did not place or compel plaintiff to remain between the two cars and that she was not at such position at the moment of the impact." ( Id. at p. 242.) "The evidence disclosed that the officers followed departmental rules in stopping, questioning, and testing [the plaintiff]. There was evidence that the discussion properly took place on the untraveled shoulder of the road and to the side of the parked vehicles." (Ibid.) The court therefore limited the plaintiff's appellate contention to a claim that the CHP officers were absolutely liable despite the substantial evidence supporting the jury's verdict. (Ibid.) The court rejected that contention, stating:

    "It cannot be said that the officers in this case were negligent as a matter of law, simply because they stopped the speeding motorist at this location and inquired as to her driving ability. The fact that a possibility existed that the vehicles might be hit by a drunken driver did not change the situation and create a new responsibility on the part of the officers as insurers of the motorists' safety from drunken drivers." (Ibid.)

The court concluded the plaintiff had shown no reason to create and apply "a rule of almost absolute liability." ( Id. at p. 243.) It stated:

    In summary, when an officer stops a motorist on the shoulder of the highway and allows the motorist to remain in or near the area, such officer is not negligent simply because there is a possibility that a drunken driver might collide with such vehicles parked on the shoulder and off the traveled lane. All possibilities of risk even if 'foreseeable' in the abstract as possibilities cannot be eliminated. There was no evidence in the case at bench that any of the risks to plaintiff, and which are common to all users of the public area, was increased by any negligent conduct on the part of [the officers]. Negligence seldom, if ever, is a pure question of law. It most always is a question of fact to be determined by the fact finder, here the jury. The jury here found in favor of defendants. The trial court did not err in denying the motion for judgment notwithstanding the verdict." ( Id. at p. 244.)

Whitton affirmed the defense verdict because substantial evidence supported the jury's verdict and the CHP officers were not absolutely liable to the plaintiff for injuries suffered during a traffic stop. However, Whitton did not hold that CHP officers do not owe a duty of reasonable care to occupants of cars stopped by them for traffic violations. Rather, Whitton assumed CHP officers owe a duty of reasonable care to such persons. ( Id. at p. 241.) 3Link to the text of the note

Grudt v. City of Los Angeles (1970) 2 Cal. 3d 575, at page 587, 86 Cal. Rptr. 465, 468 P.2d 825, also implicitly concluded law enforcement officers owe a duty of reasonable care to persons stopped for traffic violations. Grudt stated: "The evidence favorable to plaintiff raised a reasonable doubt whether [the police officers] acted in a manner consistent with their duty of care when they originally decided to apprehend Grudt, when they approached his vehicle with drawn weapons, and when they shot him to death." (Ibid.) Grudt reversed the judgment for the defendants because the trial court erroneously precluded the plaintiff's negligence theory of liability and excluded a police tactical manual as evidence of the officers' standard of reasonable care. ( Id. at pp. 585-588; cf. Mann v. State of California (1977) 70 Cal. App. 3d 773, 780, 139 Cal. Rptr. 82, superseded by statute on other grounds as noted in Adams v. City of Fremont, supra, 68 Cal. App. 4th at p. 283, fn. 31 ["Once, having apprised himself of the dangerous position of the stranded motorists and those about them, such as plaintiff, [the officer] had a duty to exercise ordinary care to protect these people from traffic dangers . . . ."].)

Reed v. City of San Diego (1947) 77 Cal. App. 2d 860, 177 P.2d 21 did not directly address the issue of the duty of reasonable care owed by law enforcement officers to occupants of cars stopped by them for traffic violations, but it affirmed a judgment on a jury verdict for the plaintiff in a factual situation similar to that in Whitton.   Reed also concluded that the defendant officers were not statutorily immune from liability for their negligence. (Id. at pp. 862-868.)

Kaisner v. Kolb (Fla. 1989) 543 So. 2d 732 is the most analogous case we have found that expressly discusses the issue of whether a law enforcement officer owes a legal duty of reasonable care to occupants in a car stopped for a traffic violation. Plaintiffs Kaisner, his wife, and five children were traveling in a pickup truck on a city street when officers stopped it for an expired inspection sticker. ( Id. at p. 733.) The officers parked their vehicle behind the truck in the right curb lane. (Ibid.) Kaisner walked between the two vehicles and complied with the officers' order to not walk any farther. (Ibid.) A few minutes later, a third vehicle struck the officers' vehicle from behind, causing it to strike Kaisner and his truck. (Ibid.) The plaintiffs filed a negligence action against the officers, the sheriff's department, and the insurer of the officers' vehicle, alleging the officers breached a duty of care by not using proper procedures in the stop. (Ibid.) The trial court granted the defendants' summary judgment motion. (Ibid.) The Florida Supreme Court reversed the summary judgment, concluding:

"In this case, we find that [the plaintiffs were] owed a duty of care by the police officers when [Kaisner] was directed to stop and thus was deprived of his normal opportunity for protection. Under our case law, our courts have found liability or entertained suits after law enforcement officers took persons into custody, otherwise detained them, deprived them of liberty or placed them in danger. [Citations.] So long as [Kaisner] was placed in some sort of 'custody' or detention, he is owed a common law duty of care." ( Id. at p. 734, italics added.)

The court elaborated: "[Kaisner] and his family unquestionably were restrained of their liberty when they were ordered to the roadside. They were not free to leave the place where the officers had ordered them to stop. [Kaisner] effectively had lost his ability to protect himself and his family from the hazard at hand, which consisted of onrushing traffic. The only way [Kaisner] could have escaped this threat would have been by disobeying the officers' instructions that he remain in the general area where they had stopped him, thus subjecting himself to immediate arrest and criminal charges. Under these circumstances, [Kaisner] clearly was sufficiently restrained of liberty to be in the 'custody' or control of the police. Thus, the officers owed him and his family a duty of care arising under the common law of Florida." (Ibid., italics added.) On the issue of foreseeability, it stated:

"There is a strong public policy in this state that, where reasonable men may differ, the question of foreseeability in negligence cases should be resolved by a jury. [Citation.] Where a defendant's conduct creates a foreseeable zone of risk, the law generally will recognize a duty placed upon defendant either to lessen the risk or see that sufficient precautions are taken to protect others from the harm that the risk poses. [Citations.]

"We see no reason why the same analysis should not obtain in a case in which the zone of risk is created by the police. The expert's affidavit in this case created an issue of fact as to whether the police violated this duty of care and were therefore guilty of negligence. . . ." ( Id. at pp. 735-736, italics added.)

Kaisner concluded: "We thus find that a duty of care existed that would support a lawsuit in the absence of any viable claim of governmental immunity . . . ." ( Id. at p. 736.) 4Link to the text of the note Kaisner supports the conclusion that Hedgecock owed Plaintiffs a legal duty of reasonable care when he directed the driver of the Camry to stop for a traffic violation. 5Link to the text of the note

It is a question of law for our determination whether Hedgecock owed Plaintiffs a legal duty of reasonable care when he directed the Camry's driver to stop for a traffic violation. (Adams v. City of Fremont, supra, 68 Cal. App. 4th at p. 265.) Plaintiffs' complaint alleged that Hedgecock was negligent by directing the Camry's driver to stop in the median area. In the absence of clear California authority, we apply the Rowland balancing test to determine whether Hedgecock owed Plaintiffs a duty of reasonable care in stopping the Camry's driver for a traffic violation.

The first factor in the Rowland test is the foreseeability of the kind of harm suffered by Plaintiffs. Foreseeability of harm is not decided based on "whether a particular plaintiff's injury was reasonably foreseeable in light of a particular defendant's conduct, but rather to evaluate more generally whether the category of negligent conduct at issue is sufficiently likely to result in the kind of harm experienced that liability may appropriately be imposed on the negligent party." (Ballard v. Uribe (1986) 41 Cal. 3d 564, 573, fn. 6, 224 Cal. Rptr. 664, 715 P.2d 624.) Bigbee v. Pacific Tel. & Tel. Co. (1983) 34 Cal. 3d 49, at pages 57-58, 192 Cal. Rptr. 857, 665 P.2d 947, stated: "'Foreseeability is not to be measured by what is more probable than not, but includes whatever is likely enough in the setting of modern life that a reasonably thoughtful [person] would take account of it in guiding practical conduct.' [Citation.] One may be held accountable for creating even '"the risk of a slight possibility of injury if a reasonably prudent [person] would not do so."' [Citations.] Moreover, it is settled that what is required to be foreseeable is the general character of the event or harm-- e.g., being struck by a car while standing in a phone booth--not its precise nature or manner of occurrence. [Citations.]" Bigbee concluded that it was reasonably foreseeable that a vehicle could veer off a busy road and strike a person in the defendant telephone company's telephone booth that was located 15 feet from the road. ( Id. at p. 58.) Bigbee stated: "Swift traffic on a major thoroughfare late at night is to be expected. . . . It is not uncommon for speeding and/or intoxicated drivers to lose control of their cars and crash into poles, buildings or whatever else may be standing alongside the road they travel--no matter how straight and level that road may be." (Ibid.) Furthermore, a third person's negligent acts do not preclude a defendant's liability for negligence if the third person's negligence is reasonably foreseeable. Bigbee noted: "'If the likelihood that a third person may act in a particular manner is the hazard or one of the hazards which makes the actor negligent, such an act whether innocent, negligent, intentionally tortious, or criminal does not prevent the actor from being liable for harm caused thereby.'" (Ibid., quoting Rest.2d Torts, § 449, p. 482.) We conclude Bigbee controls the issue of foreseeability in this case. In this era of high-volume and high-speed highway traffic, it is reasonably foreseeable that a car in the fast lane may veer off the marked traffic lane and into an adjacent area, striking another car that is stopped in that area. 6Link to the text of the note Therefore, by directing the driver of the Camry to stop along a busy highway, Hedgecock should have reasonably foreseen the risk that the Camry would be struck by a passing car and that Plaintiffs would be injured. The degree of foreseeability in this case was greater than that in Bigbee. Plaintiffs were not in a telephone booth 15 feet from a highway as in Bigbee, but in a car that was stopped only a few feet from the fast lane of onrushing highway traffic.

The second Rowland factor is the degree of certainty that Plaintiffs suffered injuries. Plaintiffs were all treated for injuries at a hospital after the accident. Defendants do not dispute that Plaintiffs were injured. Therefore, it is certain Plaintiffs suffered injuries from the accident.

The third Rowland factor is the closeness of connection between Hedgecock's conduct and the injuries suffered by Plaintiffs. Hedgecock directed the driver of the Camry to stop in the median area where it was later struck by a passing car that veered from the fast lane. We conclude there is a close connection between Hedgecock's action and the injuries suffered by Plaintiffs.

The fourth Rowland factor is the moral blame attached to Hedgecock's conduct. If Hedgecock is ultimately found to have acted without reasonable care by placing Plaintiffs in risk of the harm they suffered, he should bear some moral blame for placing Plaintiffs in that vulnerable position. That moral blame may be greater because Hedgecock, as a CHP officer who regularly patrolled the highway in question, may be deemed to have had constructive, if not actual, knowledge of the substantial risk and potential harmful consequences of his conduct in directing the driver of the Camry to stop in the median area.

The fifth Rowland factor is the policy of preventing future harm. We believe the law generally should encourage law enforcement officers to exercise reasonable care and prevent harm to traffic violators to the extent reasonably practicable. The imposition of a duty of reasonable care on Hedgecock in the circumstances of this case presumably will encourage law enforcement officers generally to exercise reasonable care when stopping traffic violators. Imposition of a duty of care furthers the policy of preventing future harm to drivers and passengers of cars that are stopped for traffic violations.

The sixth Rowland factor is the extent of the burden on Hedgecock and the consequences to the community of imposing a duty of reasonable care in this case. Defendants do not assert that imposition of a duty of reasonable care on Hedgecock in this case would be overly burdensome. Hedgecock chose among directing the Camry's driver to stop in the median area or on the right shoulder area, or to leave the highway entirely. Highway 78 had three westbound lanes in the immediate area. It would not necessarily have consumed undue time or expense for Hedgecock to direct the Camry's driver to cross two lanes and stop on the right shoulder or to leave the highway at the next off-ramp, rather than stop in the median area. Furthermore, although imposition of a duty of reasonable care and potential liability may result in a financial loss to Defendants and indirectly the community, that financial loss may ultimately encourage Defendants to act in the future to avoid the type of injuries suffered by Plaintiffs in this case. Therefore, the community, which includes occupants of cars stopped for traffic violations, will presumably benefit from the anticipated reduction in the number and severity of injuries suffered by its members who travel in vehicles on highways.

The seventh Rowland factor is the availability, cost, and prevalence of insurance for the risk involved. Although no evidence was submitted on this issue, we presume that Defendants can obtain insurance for this type of personal injury liability. Even were insurance unavailable, we presume the State of California has sufficient economic resources to self-insure for this type of risk and that it would indemnify its CHP officers for any personal negligence liability imposed in these types of cases.

Finally, we consider additional factors when a public entity is involved. (Adams v. City of Fremont, supra, 68 Cal. App. 4th at p. 268.) The CHP is an agency of the state and its law enforcement powers over traffic violators are substantial. When a CHP officer directs a driver to stop because of a traffic violation, that driver is obliged to comply. The law should encourage the agency and its officers to stop traffic violators in a location that it is as safe as is reasonably practicable for the officers, occupants of stopped vehicles and other vehicles. Defendants do not show there is any compelling budgetary reason not to impose a duty of reasonable care and potential liability in cases like this one. The CHP and its officers are generally charged with the protection of the public. To impose a duty of reasonable care and potential liability in this case should serve to further that general goal.

Based on all of these factors, we conclude Hedgecock owed Plaintiffs a legal duty of reasonable care when he directed the driver of the Camry to stop for a traffic violation.

Defendants' argument against a finding of a legal duty of reasonable care is that Plaintiffs' negligence cause of action alleged nonfeasance, liability for which requires a special relationship between Plaintiffs and Defendants. However, Plaintiffs alleged that Hedgecock directed the driver of the Camry to stop in the median area. Hedgecock's act was the basis of Plaintiffs' negligence cause of action and therefore they alleged misfeasance, not nonfeasance. Jackson stated:

"Plaintiffs did not need to assert the existence of a special relationship between [the defendant] and the decedent because plaintiffs' theory of liability is grounded on [the defendant's] alleged misfeasance (creating the risk to the decedent and making his position worse by causing him to drive an unsafe vehicle likely to break down on the highway), not on nonfeasance. Accordingly, the question of liability turns on the ordinary duty of due care, not on the existence of a special relationship." (Jackson v. Ryder Truck Rental, Inc., supra, 16 Cal. App. 4th at p. 1842.)

Therefore, in this case Plaintiffs need not show Defendants had a special relationship with them because they allege misfeasance based on Hedgecock's act, which allegedly created a risk of harm and made their position more vulnerable.

Triable Issues of Material Fact Exist Whether Hedgecock Acted With Reasonable Care and Whether His Alleged Negligence Was a Legal Cause of Plaintiffs' Injuries

Plaintiffs contend the trial court erred by finding that there were no triable issues of material fact whether Hedgecock acted with reasonable care and whether his alleged negligence was a legal cause of their injuries.

In opposition to Defendants' summary judgment motion, Plaintiffs lodged excerpts from the Manual and Thompson's declaration. The Manual instructed on proper techniques for CHP officers to use in stopping traffic violators:

"After determining that a driver is to be stopped, effective techniques should be used to ensure stopping on the right shoulder rather than in the median or in a traffic lane." (Italics added.)

It further stated: "The driver should be directed by use of the hand gesture to the right lane." The Manual also stated:

"(3) If possible, ensure a violator does not stop in the roadway or park in the median divider. All stops on freeways should be made completely off the roadway and as inconspicuously as possible to minimize the possibility of a traffic slowdown. Use a surface street location if the violator agrees.

"(4) When a violator stops in the center divider, the officer must make a decision whether to handle the transaction there or request a move to a safer location. Factors to be considered are divider width, traffic speed, traffic density, and other surrounding circumstances. The ultimate question is, 'Are the hazards of conducting the stop in the center divider more or less than moving the violator across multiple freeway lanes?'

"(5) Avoid stopping motorists where restricted shoulders or heavy congestion exists. The stop should be delayed until a safe location is reached. If asked, the officer should explain to the motorist why the stop was not made at the original point of violation.

"(6) Some stops by motorists on right shoulders will be in a hazardous location. When this occurs, the officer should immediately give clear directions where and when to move the vehicle before starting any enforcement contact. A delay in moving may result in both the officer and the violator being struck by passing traffic. The proper use of the vehicle public address system in these situations can be very effective. Care must be exercised to ensure this aid is used in a nonoffensive manner. Courtesy is the key." (Italics added.)

Thompson's declaration stated that the Manual did not give CHP officers any discretion to make traffic stops in the center median lane. Rather, it provided that officers must make all routine traffic stops by directing violators to the right shoulder. Thompson stated that Hedgecock was negligent in directing the driver of Plaintiffs' car to stop in the center median lane, rather than on the right shoulder.

The trial court found that Hedgecock "had no duty to stop Plaintiffs on the right shoulder as a matter of law" and therefore there was no triable issue of fact whether Hedgecock acted with reasonable care. However, the issue is not whether Hedgecock had a duty to stop Plaintiffs' car on the right shoulder; rather, the issue is whether Hedgecock used reasonable care in stopping the car in the median area, a triable issue of material fact for the jury to decide. Thompson's declaration raises a triable issue whether Hedgecock used reasonable care by directing the driver of Plaintiffs' car to stop in the median area. The Manual is evidence of Hedgecock's exercise of his duty of reasonable care. (Grudt v. City of Los Angeles, supra, 2 Cal. 3d at p. 588.) Viewing the evidence favorably to Plaintiffs, it can reasonably be inferred that the Manual states a general preference for making traffic stops on the right shoulder. In fact, its only references to stops in the median area are to instances when the motorist stops there, presumably without directions from the officer to do so. In that instance, the officer is instructed to consider directing the motorist to a safer location. Therefore, under the circumstances of this case there is a triable issue of fact whether Hedgecock acted with reasonable care by directing the driver of Plaintiffs' car to stop in the median area. 7Link to the text of the note

In opposition to Defendants' summary judgment motion, Plaintiffs argued there was a triable issue of fact for the jury whether Hedgecock's alleged negligence was a legal cause of their injuries. They argued Neeb's direct act of causing the accident did not preclude Defendants' liability because Hedgecock's negligence was a substantial factor in causing the accident and Neeb's act was reasonably foreseeable.

The trial court found that "because of a lack of foreseeability, Defendants' conduct was not a cause-in-fact or substantial factor in bringing about Plaintiffs' injuries."

In a negligence action the plaintiff must show that the defendant's act or omission was a cause of the plaintiff's injury. (Jackson v. Ryder Truck Rental, Inc., supra, 16 Cal. App. 4th at p. 1846.) The element of causation generally consists of two components. ( Id. at p. 1847.) The plaintiff must show (1) the defendant's act or omission was a cause-in-fact of the plaintiff's injury, and (2) the defendant should be held responsible for negligently causing the plaintiff's injury. (Ibid.) The second component is a normative or evaluative one that asks whether the defendant should owe the plaintiff a legal duty of reasonable care under the circumstances of the case. (Id. at pp. 1847-1848.) We have concluded that Hedgecock did owe a duty of reasonable care to Plaintiffs and the second component of causation is therefore satisfied.

The first component of causation-in-fact generally is a question of fact for the jury. Causation-in-fact is shown if the defendant's act or omission is "a substantial factor" in bringing about the plaintiff's injury. (Jackson v. Ryder Truck Rental, Inc., supra, 16 Cal. App. 4th at p. 1847; Mitchell v. Gonzales (1991) 54 Cal. 3d 1041, 1051-1052, 819 P.2d 872.) Defendants assert that Hedgecock's act could not be a cause-in-fact of Plaintiffs' injuries because Neeb's act was the direct cause of their injuries and that act was not reasonably foreseeable. We conclude that there is a triable issue whether Hedgecock's act was a substantial factor in bringing about Plaintiffs' injuries. Viewing the evidence favorably to Plaintiffs, they would not have been in the Camry in the median area had Hedgecock not directed its driver to stop there. Had the Camry not been stopped in the median area Neeb's truck presumably would not have struck the Camry. Therefore, but for Hedgecock's actions the accident and Plaintiffs' resultant injuries would not have occurred. The risk of a vehicle veering off the fast lane and into the highway median area was reasonably foreseeable. Also, Thompson's declaration supports a reasonable inference that Hedgecock's alleged negligence was a substantial cause of Plaintiffs' injuries. Neeb's act, whether innocent, negligent, or reckless, does not absolve Defendants of liability for Hedgecock's negligence unless Neeb's act is found by the jury to have been an intervening or superseding cause of Plaintiffs' injuries. ( Torres v. Xomox Corp. (1996) 49 Cal. App. 4th 1, 18-19, 56 Cal. Rptr. 2d 455; Bigbee v. Pacific Tel. & Tel. Co., supra, 34 Cal. 3d at p. 58.) Under the circumstances of this case, that question cannot be decided as a matter of law. For Defendants to show that Neeb's act was a superseding cause of Plaintiffs' injuries, they must show that intervening act was so highly unusual or extraordinary that the accident was not likely to happen and therefore was not foreseeable. (6 Witkin, supra, § 975 at p. 366; Bloomberg v. Interinsurance Exchange (1984) 162 Cal. App. 3d 571, 576-577, 207 Cal. Rptr. 853; Akins v. County of Sonoma (1967) 67 Cal. 2d 185, 199, 60 Cal. Rptr. 499, 430 P.2d 57.) We conclude there are triable issues of fact whether Neeb's act was foreseeable and whether Hedgecock's act was a cause-in-fact of Plaintiffs' injuries. 8Link to the text of the note

V

Defendants Are Not Statutorily Immune from Liability

Plaintiffs contend the trial court erred by finding that Defendants were immune from liability because Hedgecock's alleged negligent acts were discretionary decisions under section 820.2. 9Link to the text of the note The trial court stated: "Hedgecock's decision to stop Plaintiffs' car in the center median area of the freeway was a judgment call and an acceptable option, depending on the circumstances. In other words, it was a discretionary act subject to immunity pursuant to [Government] Code [section] 820.2."

We conclude the trial court erred by finding that the section 820.2 discretionary immunity provision applied to Hedgecock's decision to direct the driver of the Camry to stop in the median area. Discretionary acts covered by that statute have consistently been interpreted by California courts to include only those acts of public employees that are basic policy-making decisions. (Caldwell v. Montoya (1995) 10 Cal. 4th 972, 981-982, 897 P.2d 1320.) Ministerial or operational decisions of public employees are not protected by that statute because they "merely implement a basic policy already formulated." (Id. at p. 981.) In McCorkle v. City of Los Angeles (1969) 70 Cal. 2d 252, at page 261, 74 Cal. Rptr. 389, 449 P.2d 453, the court assumed a police officer exercised discretion in deciding to investigate an accident, but concluded section 820.2 "did not clothe him with immunity from the consequences of his negligence in conducting it." (70 Cal. 2d at p. 261.) Hedgecock's decision to stop the Camry for a traffic violation and to direct the driver to stop in the median area was an operational or ministerial decision, rather than a discretionary decision protected by immunity. ( Id. at pp. 261-262; Mann v. State of California, supra, 70 Cal. App. 3d at p. 778.)

Defendants alternatively assert that the immunity provisions of section 821.6 10Link to the text of the note apply in this case because in stopping the Camry Hedgecock was conducting an investigation that might lead to the institution and prosecution of judicial proceedings. Hedgecock's stop of the Camry cannot reasonably be viewed an investigation that is part of the institution or prosecution of judicial proceedings. Hedgecock was simply stopping the Camry to issue a speeding citation. Section 821.6 was not intended to protect law enforcement officers from liability in these types of cases. Plaintiffs do not allege malicious prosecution by Defendants. (Cf. Bell v. State of California (1998) 63 Cal. App. 4th 919, 929; Asgari v. City of Los Angeles (1997) 15 Cal. 4th 744, 756-759, 937 P.2d 273.) Amylou R. v. County of Riverside (1994) 28 Cal. App. 4th 1205 and Baughman v. State of California (1995) 38 Cal. App. 4th 182, cited by Defendants, are inapposite because they involve actual law enforcement investigations.

Defendants finally assert that section 845 provides them with immunity for Hedgecock's alleged negligence. That statute applies to actions for not providing police protection. Plaintiffs allege that Hedgecock committed misfeasance by affirmatively directing the driver of the Camry to stop in the median area. Their negligence action is not based on nonfeasance or a failure to protect them. Therefore, section 845 does not apply. (Wallace v. City of Los Angeles (1993) 12 Cal. App. 4th 1385, 1402; Mann v. State of California, supra, 70 Cal. App. 3d at pp. 778-779.)

VI

Conclusion

Because Hedgecock owed Plaintiffs a duty of reasonable care, triable issues of material fact exist on breach of that duty and causation, and no statutory immunity applies, the trial court erred by granting Defendants' motion for summary judgment.

DISPOSITION

The judgment is reversed and the cause is remanded for further proceedings consistent with this opinion. Appellants shall recover their costs of appeal.

McDONALD, J.

WE CONCUR:

HUFFMAN, Acting P.J.

McINTYRE, J.

Footnotes

    1Link to the location of the note in the document

    The State of California Department of Transportation was also named as a defendant on a dangerous condition cause of action, but apparently Plaintiffs voluntarily dismissed it as a defendant.

    2Link to the location of the note in the document

    All further statutory references are to the Government Code unless otherwise specified.

    3Link to the location of the note in the document

    Plaintiffs do not contend that Hedgecock was negligent as a matter of law because the Manual purportedly requires that all traffic stops be made on the right shoulder or off the highway. Plaintiffs assert that Hedgecock's negligence is a question of fact for the jury's determination.

    4Link to the location of the note in the document

    Kaisner then proceeded to discuss and conclude that no basic policy-making or discretionary acts for which the officers could be immune from liability were performed by them in conducting the traffic stop. ( Id. at pp. 736-738.)

    5Link to the location of the note in the document

    A legal treatise also provides support for that conclusion, stating: "No better general statement can be made than that the courts will find a duty where, in general, reasonable persons would recognize it and agree that it exists." (Prosser & Keeton, Torts (5th ed. 1984) § 53, p. 359.) We believe reasonable persons would agree that when a law enforcement officer assumes control over a vehicle by ordering its driver to stop for a traffic violation, that officer owes a duty of reasonable care to the occupants of that vehicle to not unreasonably place them in a zone of risk of harm from reasonably foreseeable accidents caused by approaching vehicles.

    6Link to the location of the note in the document

    This type of highway accident is reasonably foreseeable and is the antithesis of the chain of bizarre events that caused the plaintiff's injury in the infamous case of Palsgraf v. Long Island R. Co. (N.Y. 1928) 248 N.Y. 339, 162 N.E. 99. Palsgraf held that because the injury to the plaintiff was not reasonably foreseeable, the defendant did not owe a legal duty of reasonable care to the plaintiff.

    7Link to the location of the note in the document

    The trial court also incorrectly stated that Plaintiffs must prove that Hedgecock had actual knowledge that an accident was likely to occur at that location. The court cited Whitton as support for that conclusion, but Whitton did not require that showing when the issue of exercise of reasonable care was presented to the jury for a factual determination. Rather, that requirement applied only when the unsuccessful plaintiff contended on appeal that the defendants were negligent as a matter of law. Whitton restated the general rule that whether the defendant law enforcement officers acted in a reasonable manner was a question of fact, which at trial the jury decided adversely to the plaintiff. ( Whitton v. State of California, supra, 98 Cal. App. 3d at pp. 241, 244.)

    8Link to the location of the note in the document

    Whitton did not hold that it is unforeseeable as a matter of law that a vehicle may veer off a highway and strike another vehicle that is in the median area.

    9Link to the location of the note in the document

    Section 820.2 provides: "Except 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."

    10Link to the location of the note in the document

    Section 821.6 provides: "A public employee is not liable for injury caused by his instituting or prosecuting any judicial or administrative proceeding within the scope of his employment, even if he acts maliciously and without probable cause."

~~~~~~~~~~~~~~~~

People v. Espino

Court of Appeal of California, Sixth Appellate District

May 24, 2016, Opinion Filed

H040942

247 Cal. App. 4th 746

THE PEOPLE, Plaintiff and Respondent, v. FREDDY ESPINO, Defendant and Appellant.

Notice:

THE SUPREME COURT OF CALIFORNIA GRANTED REVIEW IN THIS MATTER (see Cal. Rules of Court, rules 8.1105(e)(1)(B), 8.1115(e)) August 24, 2016, S235540.

Subsequent History: Review granted by, Review pending at People v. Espino, 208 Cal. Rptr. 3d 276, 381 P.3d 223, 2016 Cal. LEXIS 7016 (Cal., Aug. 24, 2016)
Request granted People v. Espino, 2016 Cal. LEXIS 9986 (Cal., Sept. 6, 2016)
Review dismissed by People v. Espino, 2017 Cal. LEXIS 2796 (Cal., Apr. 12, 2017)

Prior History:

Superior Court of Santa Clara County, No. F1241967, Edward F. Lee, Judge.

CALIFORNIA OFFICIAL REPORTS HEADNOTES

CA(6) (6) Searches and Seizures § 77 — Warrantless — Search of Vehicle — Consent — Validity — Cessation of Probable Cause for Arrest.

Police officers had placed defendant under de facto arrest when they put handcuffs on him and seated him on the curb of a sidewalk. His arrest was unlawful at the time the officers requested his consent for the search of his car because probable cause had ceased to exist when they discovered the object in his pocket was not contraband, and his consent for the car search was invalid as a consequence.
[Erwin et al., Cal. Criminal Defense Practice (2016) ch. 22, § 22.02; 4 Witkin & Epstein, Cal. Criminal Law (4th ed. 2012) Illegally Obtained Evidence, §§ 84 et seq., 191 et seq., 270, 328, 333.]

Counsel: Rudolph J. Alejo, under appointment by the Court of Appeal, for Defendant and Appellant.

Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Jeffrey M. Laurence, Acting Assistant Attorney General, Eric D. Share, Ronald E. Niver and Michael J. Mongan, Deputy Attorneys General, for Plaintiff and Respondent.

Judges: Opinion by Márquez, J., with Rushing, P. J., and Grover, J., concurring.

Opinion by: Márquez, J.

Opinion

MÁRQUEZ, J. — Police stopped defendant Freddy Espino for speeding. Based on an informant's tip and other factors, the police extended the stop for further investigation. In the course of the stop, defendant consented to a search of his person, whereupon officers found an object in his pocket. Thinking the object was crack cocaine, the officers handcuffed defendant. But after examining the object, the police determined it was not crack cocaine, but a diamond. Without removing the handcuffs, police continued to question defendant and requested consent to search his car. After some hesitation, defendant gave consent for the car search, whereupon the police found several grams of methamphetamine in defendant's car.

Defendant moved to suppress the seized evidence under Penal Code section 1538.5. The trial court denied the motion. Defendant then pleaded no contest to possession of methamphetamine for sale, possession of a firearm by a felon, and possession of ammunition by a felon. He also admitted having a prior conviction for possession of cocaine for sale. The trial court imposed a total term of two years eight months.

Defendant appeals from the denial of his motion to suppress. He does not dispute that the police lawfully stopped him for speeding, but he challenges the constitutionality of the seizure on two grounds. First, he contends the police lacked reasonable suspicion to prolong the stop longer than necessary to address the traffic violation. Second, he contends he did not give valid consent for the car search because he was unlawfully under arrest when officers requested his consent.

We conclude the police had reasonable suspicion to extend the duration of the initial traffic stop beyond that necessary for traffic enforcement purposes. However, we hold defendant did not give valid consent for the car search because the police lacked probable cause to keep him under arrest when they requested his consent. We will reverse the judgment.1Link to the text of the note
I. Factual and Procedural Background

Police searched defendant's vehicle after stopping him for speeding. An onboard camera in the patrol car recorded video of the stop, but not audio. In defendant's car, police found several grams of methamphetamine, a scale, and numerous small plastic bags. In a subsequent warrant search of defendant's home, police found a gun and ammunition in a safe.

A. Facts of the Search

At the suppression hearing, Gilroy Police Sergeant Joseph Deras testified as follows. In March 2012, he was conducting a “speed enforcement operation” near First Street and Kern Street in Gilroy. He had a civilian “ride along” in the patrol car with him. At around 7:30 p.m., Sergeant Deras stopped defendant for driving 50 to 51 miles per hour. The speed limit was 35 miles per hour. After defendant pulled over, Sergeant Deras approached defendant's car, explained the reason for the stop, and requested defendant's license, registration, and proof of insurance. Defendant supplied all three documents, and Sergeant Deras returned to his patrol car for a routine license and warrant check. He determined there were no warrants outstanding, defendant's license was valid, and he was not on probation or parole. But the check also showed defendant was registered as a sex offender under Penal Code section 290.

Sergeant Deras testified that, in response to learning an individual is a registered sex offender, his practice was to verify that the registrant lives at the registered address. With respect to defendant, Sergeant Deras testified, “By definition, [defendant] was in compliance” as a registrant under Penal Code section 290. However, Sergeant Deras also testified that, in the days before the stop, another officer told him certified letters had been sent to defendant's address, but police were unable to establish face-to-face contact with defendant. Sergeant Deras inferred it was possible somebody else could have signed and returned the letters, and that defendant did not actually live at the address. Sergeant Deras made several calls to the other officer but could not reach him.

While Sergeant Deras was still in his patrol car, Gilroy Police Detective Bill Richmond called Sergeant Deras on his cell phone. Detective Richmond told Sergeant Deras to “hang on” to defendant. Detective Richmond had information from a “validated confidential informant” that defendant was selling narcotics and firearms. Sergeant Deras testified that he managed all the informants in Gilroy, he was aware of an informant “looking into” defendant, but he did not have “particulars about the exact amount of narcotics” or types of firearms involved.

At that point, Sergeant Deras decided to wait with his patrol car until other officers arrived to assist with the stop. He testified that he needed more information from Detective Richmond, and he was concerned about the possible presence of a firearm in the car. For that reason, he preferred to have other officers approach the car with him.

Around the same time, the civilian ride along told Sergeant Deras that he had seen defendant “making a very pronounced movement” to the passenger side of the car when he first pulled over. Based on the civilian's description, Sergeant Deras considered this to be a “furtive movement,” i.e., a possible attempt to conceal contraband.

After several minutes, Detective Richmond and another officer arrived. The officers approached defendant's car, ordered him to get out, and walked him to the sidewalk for questioning. Defendant told the officers he was living at the address listed in his sex offender registration, but he had never signed for any certified letters. After defendant put his hands in his pockets several times, the officers asked defendant for consent to search his pockets. Defendant consented to the search. The officers found “some type of hard, small, little object” consistent with the size and texture of crack cocaine. At that point, the officers placed defendant in handcuffs. They told him he was being detained and that he was not under arrest.

At the suppression hearing, when the prosecutor asked Sergeant Deras why they placed defendant in handcuffs, he answered, “Well, as soon as that object came out, we thought it was crack cocaine,” so “we thought he was committing a felony.” After examining the object under his patrol car spotlight, however, Sergeant Deras determined it was a diamond. Sergeant Deras estimated it took him “probably a minute” to determine the object was not contraband.

After Sergeant Deras determined the object was a diamond, he asked defendant whether there were any weapons or drugs in the car. Defendant was still handcuffed at the time, and he had been handcuffed for about two or three minutes. When Sergeant Deras asked defendant for consent to search the car, defendant “took a moment to think about it” and gave his consent, whereupon the officers began their search. On the front passenger side floorboard of the car, Sergeant Deras found a green plastic baby wipes box. He opened the box and found a number of small, clear plastic bags, an electronic scale, and several grams of methamphetamine. Based partly on this evidence, police obtained a search warrant for defendant's residence, where they found a safe containing a .22-caliber revolver and ammunition.

The video from Sergeant Deras's onboard camera establishes a rough time line of the aforementioned events. The camera recorded the stop from behind defendant's car. Thirty seconds after defendant's car pulled over, Sergeant Deras approached the passenger side of the car and spoke with defendant for about a minute. He then walked back to his patrol car and out of view of the camera. The video shows defendant waited in his car for the next six minutes, at which time two officers approached the car, and defendant exited the vehicle. The officers then walked defendant to the sidewalk, out of view of the camera. About four minutes later, the officers seated defendant on the curb of the sidewalk with his hands handcuffed behind him. One minute later, two officers began searching the car. About 13 minutes elapsed between the initial stop and the search of the car. The video does not show defendant making a “very pronounced motion” as described by the civilian ride along.

B. Procedural Background

1. Motion to Suppress

Defendant challenged the legality of the search and moved to suppress the seized evidence under Penal Code section 1538.5. Defendant argued that the police prolonged the search longer than necessary to effectuate the legitimate purposes of the traffic stop. He also argued that he did not validly consent to a search of the car when police requested his consent. Furthermore, he argued that the seized drugs, as the fruits of a poisonous tree, could not support a finding of probable cause for the subsequent warrant search of his home.

The prosecution responded that the tip from a confidential informant gave officers reasonable suspicion to detain defendant longer than necessary to deal with the speeding violation. The prosecution also argued that the discovery of the object in defendant's pocket gave them probable cause to search the car. Finally, the prosecution argued that defendant gave valid consent for the search.

The trial court held a hearing at which the prosecution presented the testimony of Sergeant Deras and the civilian who accompanied him. After taking the matter under submission, the court made several findings. The court found the police officers “had a variety of information they needed to deal with from a variety of sources at the time of the stop.” The court reviewed the video of the stop and matched the progression of events to the officer's narrative. Based on its review, the court found that the total time elapsed from the stop of the car to the seizure of contraband was 13 minutes. The court found that an insignificant amount of time had passed between the time police discovered that the object seized from defendant's pocket was not contraband to the time defendant consented to the search of his car. Based on these findings, the court concluded the search was constitutional and it denied the motion to suppress.
2. Proceedings After Denial of the Motion to Suppress

The prosecution charged defendant by information with possession of methamphetamine for sale, possession of a firearm by a felon, and possession of ammunition by a felon. (Health & Saf. Code, § 11378; Pen. Code, former § 12021, subd. (a)(1); Pen. Code, § 30305, subd. (a)(1).) The information alleged defendant had suffered a prior conviction for possession of cocaine for sale. (Health & Saf. Code, § 11370.2, subd. (c).)

After the trial court denied the motion to suppress, defendant pleaded no contest to all three counts and admitted the prior conviction allegation. The trial court imposed a total term of two years eight months, composed of the middle term of two years on the first count consecutive to eight months (one-third the middle term) on the second count. The court also imposed the middle term of two years on the third count to run concurrently. The court struck the punishment for the prior conviction allegation.

II. Discussion

Defendant does not challenge the legality of the initial stop. Instead, he contends Sergeant Deras prolonged the duration of the stop longer than reasonably necessary to address the speeding violation. He argues that the detention had therefore become unconstitutional by the time he consented to the search. Second, defendant argues that he was unlawfully under arrest when he consented to the car search because the probable cause for his arrest — the discovery of the object in his pocket — ceased to exist when police discovered the object was a diamond. He contends the consent to search his car was therefore invalid.

The Attorney General contends Sergeant Deras had reasonable suspicion independent of the traffic violation—e.g., the confidential informant's tip—which justified the prolonged detention. The Attorney General also contends defendant validly consented to the search because the police had the authority to arrest defendant for the traffic violation under Atwater v. City of Lago Vista (2001) 532 U.S. 318 [149 L. Ed. 2d 549, 121 S. Ct. 1536] (Atwater).

A. Legal Standards

The Fourth Amendment provides that “[t]he right of the people to be secure in their persons, houses, papers and effects, against unreasonable searches and seizures, shall not be violated … .” (U.S. Const., 4th Amend.) This guarantee has been incorporated into the Fourteenth Amendment to the federal Constitution and thereby applies to the states. (Mapp v. Ohio (1961) 367 U.S. 643 [6 L. Ed. 2d 1081, 81 S. Ct. 1684].)

In reviewing a lower court's ruling, we are bound by factual findings supported by substantial evidence. (People v. Camacho (2000) 23 Cal.4th 824, 830 [98 Cal.Rptr.2d 232, 3 P.3d 878] (Camacho).) The ultimate question of whether a search was unreasonable is a question of law we review de novo. (Ibid.)

In response to a motion to suppress evidence seized in a warrantless search, the prosecution bears the burden to prove police conducted the search under a valid exception to the Fourth Amendment's warrant requirement. (Camacho, supra, 23 Cal.4th 824, 830.) When the prosecution asserts that a defendant has consented to a search, the prosecution bears the additional burden of proving by a preponderance of the evidence “that the defendant's manifestation of consent was the product of his [or her] free will and not a mere submission to an express or implied assertion of authority.” (People v. James (1977) 19 Cal.3d 99, 106 [137 Cal. Rptr. 447, 561 P.2d 1135].)

B. Reasonable Suspicion Supported the Initial Period of Detention

Defendant complains that although Sergeant Deras initially stopped him for speeding, officers never attempted to issue him a speeding ticket and instead expanded the scope of the stop beyond its initial purpose. The Attorney General argues that Sergeant Deras had reasonable suspicion to extend the duration of the stop beyond that necessary to issue defendant a speeding ticket. We agree with the Attorney General that the police had reasonable suspicion independent of the traffic violation sufficient to extend the duration of the detention.

“A seizure for a traffic violation justifies a police investigation of that violation.” (Rodriguez v. United States (2015) 575 U.S. ___, ___ [191 L. Ed. 2d 492, 135 S.Ct. 1609, 1614] (Rodriguez).) However, “[a] seizure that is justified solely by the interest in issuing a warning ticket to the driver can become unlawful if it is prolonged beyond the time reasonably required to complete that mission.” (Illinois v. Caballes (2005) 543 U.S. 405, 407 [160 L. Ed. 2d 842, 125 S. Ct. 834].) “[T]he tolerable duration of police inquiries in the traffic-stop context is determined by the seizure's ‘mission’—to address the traffic violation that warranted the stop, [citation], and attend to related safety concerns, [citation]. [Citations.] Because addressing the infraction is the purpose of the stop, it may ‘last no longer than is necessary to effectuate th[at] purpose.’ [Citations.] Authority for the seizure thus ends when tasks tied to the traffic infraction are—or reasonably should have been—completed.” (Rodriguez, at p. ___ [135 S.Ct. at p. 1614].) These tasks include those incidental to traffic enforcement, such as validating a license and registration, searching for outstanding warrants, and checking for proof of insurance. (Id. at p. ___ [135 S.Ct. at p. 1615].)

If the police develop reasonable suspicion of some other criminal activity during a traffic stop of lawful duration, they may expand the scope of the detention to investigate that activity. (See Illinois v. Caballes, supra, 543 U.S. at pp. 407–408; U.S. v. Serena (8th Cir. 2004) 368 F.3d 1037, 1041 [an investigative stop can grow out of a traffic stop if the officer has reasonable suspicion of criminal activity to expand the investigation, even if those suspicions were unrelated to the underlying traffic offense].) Defendant concedes this point, but he argues that Sergeant Deras lacked any reasonable suspicion of criminal activity apart from the speeding violation. We disagree.

Reasonable suspicion is a lesser standard than probable cause and can arise from less reliable information than that required for probable cause. (People v. Wells (2006) 38 Cal.4th 1078, 1083 [45 Cal. Rptr. 3d 8, 136 P.3d 810].) To be reasonable, an officer's suspicion must be supported by some specific, articulable facts reasonably consistent with criminal activity. (Ibid.) The officer's subjective suspicion must be objectively reasonable. (Ibid.) “‘[A]n investigative stop or detention predicated on mere curiosity, rumor, or hunch is unlawful, even though the officer may be acting in complete good faith.’” (Ibid.)

Here, Sergeant Deras was aware of several facts supporting reasonable suspicion of independent criminal activity. First, he had evidence suggesting that defendant may not have been in compliance with Penal Code section 290's registration requirements. Second, Sergeant Deras was aware that a confidential informant had information suggesting defendant may have been involved in selling drugs and guns. Third, the civilian ride along observed defendant making a furtive movement as Sergeant Deras was stopping his vehicle. Taken together, these facts provided reasonable suspicion sufficient to extend the length of the traffic stop beyond that necessary for traffic enforcement.

Defendant contends the informant's tip was too vague and unsubstantiated to provide reasonable suspicion of defendant's involvement in drugs and guns. If Detective Richmond's call relaying the confidential informant's tip was the sole basis for reasonable suspicion, this argument would have merit. The so-called “collective knowledge” or “official channels” rule requires the prosecution to provide corroboration of the accuracy of anonymous tips relayed in this manner. The court in In re Eskiel S. held that “[a] radio broadcast which cannot be traced back to its source amounts to nothing more than an anonymous tip. Hence, the information contained in such a broadcast can support a detention only where that information is ‘sufficiently corroborated to furnish the requisite reasonable suspicion.’” (In re Eskiel S. (1993) 15 Cal.App.4th 1638, 1644 [19 Cal. Rptr. 2d 455].) Here, however, Sergeant Deras testified that he had some personal knowledge of the informant's tip because he was responsible for managing all the confidential informants in Gilroy. Furthermore, he relied on the additional factors set forth above—e.g., defendant's furtive movement, and other officers' inability to confirm defendant's place of residence. We therefore conclude Sergeant Deras had a sufficient basis for the extended stop, even in the absence of corroboration of the informant's tip.

C. Defendant Did Not Give Valid Consent for the Search of His Car

After defendant gave officers consent to search his person, they found an object in his pocket which they believed to be crack cocaine. On this basis, officers placed defendant in handcuffs and seated him on the sidewalk. After Sergeant Deras examined the object in the light of his patrol car, he determined the object was a diamond. Nonetheless, the officers kept defendant in handcuffs, continued to question him, and requested consent to search his car.

Defendant contends he was under de facto arrest when police requested consent to search his car.2Link to the text of the note Because the police lacked probable cause to keep him under arrest, he contends the arrest was unlawful. Therefore, he argues, he did not provide valid consent, and the car search was illegal. The Attorney General contends defendant was lawfully under arrest as part of a valid traffic enforcement stop because the police had probable cause to believe he was speeding. In the alternative, the Attorney General argues that the officers' use of handcuffs did not convert the detention into an unlawful arrest.

Defendant's argument requires us to resolve three issues: First, whether officers had placed him under de facto arrest; second, whether the arrest was unlawful at the time they requested his consent; and third, whether his consent was invalid as a consequence. We answer all three questions in the affirmative.

1. Defendant Was Under Arrest When Officers Requested Consent to Search His Car

Defendant, relying on In re Antonio B. (2008) 166 Cal.App.4th 435 [82 Cal. Rptr. 3d 693] (Antonio B.), argues that police placed him under de facto arrest when they put handcuffs on him and seated him on the curb of the sidewalk. We agree.

“‘A seizure occurs whenever a police officer “by means of physical force or show of authority” restrains the liberty of a person to walk away.’” (People v. Celis (2004) 33 Cal.4th 667, 673 [16 Cal. Rptr. 3d 85, 93 P.3d 1027] (Celis).) A seizure can be an arrest or a detention. (Antonio B., supra, 166 Cal.App.4th at pp. 439–440.) A warrantless arrest must be supported by probable cause. (Celis, at p. 673.) “Probable cause exists when the facts known to the arresting officer would persuade someone of ‘reasonable caution’ that the person to be arrested has committed a crime.” (Ibid.)

In Antonio B., the Court of Appeal for the Second District considered the question of when the use of handcuffs elevates a detention to the level of a formal arrest requiring probable cause. The court first noted that “handcuffing a suspect for a short period does not necessarily transform a detention into an arrest.” (Antonio B., supra, 166 Cal.App.4th at p. 441, citing Celis, supra, 33 Cal.4th at p. 675; cf. Dunaway v. New York (1979) 442 U.S. 200, 215 [60 L. Ed. 2d 824, 99 S. Ct. 2248] [handcuffs considered among the “trappings of a technical formal arrest”]; U.S. v. Newton (2d Cir. 2004) 369 F.3d 659, 676 [handcuffs are generally recognized as a hallmark of a formal arrest; citing cases].) The court then recognized the general rule as set forth in Celis: “The issue is whether the use of handcuffs during a detention was reasonably necessary under all of the circumstances of the detention. [Citations.] We look to ‘the facts known to the officers in determining whether their actions went beyond those necessary to effectuate the purpose of the stop, that is, to quickly dispel or confirm police suspicions of criminal activity.’” (Antonio B., at p. 441, quoting Celis, at pp. 675–676.) In a survey of the case law, the court identified two predominant factors that most courts consider in deciding whether handcuffing a detainee converts a detention into an arrest. The court concluded that handcuffing a detainee does not result in an arrest when, “at the time of the detention, the officer had a reasonable basis to believe the detainee presented a physical threat to the officer or would flee.” (Antonio B., at p. 442.)

Applying these principles, we conclude that neither physical threats nor the threat of escape justified the handcuffing of defendant absent probable cause. Defendant—a 50-year-old man with a medium-to-heavy build—was peaceful and compliant at all times during the stop. (Cf. Haynie v. County of Los Angeles (9th Cir. 2003) 339 F.3d 1071, 1077 [detainee's belligerence and refusal to obey orders supported finding that handcuffing him did not constitute arrest].) The police outnumbered him three to one, and once removed from his car, he presented little threat of escape. (Cf. Celis, supra, 33 Cal.4th at p. 676 [no arrest where police officer drew gun and handcuffed detainee, given that suspects outnumbered police two to one and presented threat of fleeing]; U.S. v. Bautista (9th Cir. 1982) 684 F.2d 1286, 1289–1290 [no arrest where officer handcuffed two men, one of whom was preparing to flee].) Officers had already searched defendant's person and found no weapons. (Cf. U.S. v. Alvarez (9th Cir. 1990) 899 F.2d 833, 839 [no arrest where officers had strong reason to believe detainee was armed].) And while standing on the sidewalk, defendant was too far from the car to reach for any weapons in it. Finally, as to Sergeant Deras's statement to defendant that he was not under arrest, this did not negate the fact that defendant was physically restrained by handcuffs. (U.S. v. Newton, supra, 369 F.3d at p. 676 [detainee in handcuffs was under arrest despite police advisement that he was not under arrest]; see also People v. Aguilera (1996) 51 Cal.App.4th 1151, 1163 [59 Cal. Rptr. 2d 587] [defendant was in custody despite officer's statement that he was not in custody]; Seals v. U.S. (D.C. Cir. 1963) 117 U.S. App.D.C. 79 [325 F.2d 1006, 1008–1009] [defendant interrogated at police station was under arrest notwithstanding officer's statement that defendant was not under arrest].)

Based on these facts, defendant was under de facto arrest when officers handcuffed him, requiring probable cause for the arrest. As confirmed by Sergeant Deras's testimony, the police based their arrest on the belief that defendant was in possession of crack cocaine. Although the object in defendant's pocket was actually a diamond, probable cause for an arrest may be supported by a reasonable, good faith mistake of fact. (See Hill v. California (1971) 401 U.S. 797, 802 [28 L. Ed. 2d 484, 91 S. Ct. 1106]; People v. Hill (1968) 69 Cal.2d 550, 553 [72 Cal. Rptr. 641, 446 P.2d 521]; Weinstein v. City of Eugene (9th Cir. 2009) 337 Fed. Appx. 700, 701; see also Pen. Code, § 836, subd. (a)(3).) Defendant does not claim—and nothing in the record shows—that the officers lacked a good faith belief that the object was crack cocaine when they first removed the diamond from defendant's pocket. We thus conclude defendant was lawfully arrested when police initially handcuffed him.

2. Probable Cause for the Arrest Ceased to Exist When Police Discovered the Object in Defendant's Pocket Was Not Contraband

Defendant argues he was no longer lawfully under arrest once police determined the object in his pocket was not crack cocaine, but a diamond. We agree with defendant that, once police realized the object was a diamond, they lacked probable cause to keep him under arrest for drug possession. The only other basis for the arrest—a vague and uncorroborated claim by an informant—did not constitute probable cause. (People v. Ramey (1976) 16 Cal.3d 263, 269 [127 Cal. Rptr. 629, 545 P.2d 1333] [probable cause not established by conclusory information]; People v. French (2011) 201 Cal.App.4th 1307, 1318 [134 Cal. Rptr. 3d 383] [conclusory statements by confidential informants insufficient to support a warrant]; cf. Illinois v. Gates (1983) 462 U.S. 213, 244 [76 L. Ed. 2d 527, 103 S. Ct. 2317] [probable cause supported by totality of the circumstances where details of informant's tip were corroborated by police investigation].) Nor did the civilian's observation of a “furtive movement” provide probable cause, as the movement itself lacked sufficient criminal connotation. (Gallik v. Superior Court (1971) 5 Cal.3d 855, 859 [97 Cal. Rptr. 693, 489 P.2d 573] [to constitute probable cause, a furtive gesture must be invested with guilty significance]; People v. Superior Court (Kiefer) (1970) 3 Cal.3d 807, 823 [91 Cal. Rptr. 729, 478 P.2d 449] [mere furtive movement of occupant of vehicle being chased by officer for traffic violation insufficient to establish probable cause]; People v. Lathan (1974) 38 Cal.App.3d 911, 916 [113 Cal. Rptr. 648] [furtive movements must be such as to have a criminal connotation].)

Neither party cites any authority addressing the question of whether, or for how long, police may constitutionally keep a person under arrest without a warrant once they discover an arrest is based on a mistake of fact. Because we are aware of no published California opinion that address this specific question, we look to the laws of other jurisdictions.

The common law has long required police to release an arrestee upon learning beyond a reasonable doubt that a warrantless arrest was based on error. “An arrest of another without a warrant is often privileged because the actor reasonably suspects that the other whom he [or she] arrests has committed a felony. So too, the actor's privilege to maintain the custody of one whom he [or she] has arrested on suspicion of felony extends no further than to maintain the custody while he [or she] still entertains such a suspicion. If the actor, whether a private person or a police officer, has arrested another without a warrant on reasonable suspicion of felony, and has ascertained beyond a reasonable doubt that the suspicion upon which the privilege to arrest is based is unfounded, he [or she] is no longer privileged to keep the other in custody and must release him [or her] … .” (Rest.2d Torts, § 134, com. f, p. 240.)

Several federal courts have adopted the aforementioned common law rule in resolving lawsuits for civil rights violations—including those with constitutional claims. (Duckett v. City of Cedar Park (5th Cir. 1992) 950 F.2d 272, 279 [a plaintiff may state a constitutional claim if, after the police officers make an arrest pursuant to a warrant, police officers fail to release the arrestee after they receive information upon which to conclude beyond a reasonable doubt that such warrant had been withdrawn]; McConney v. City of Houston (5th Cir. 1989) 863 F.2d 1180, 1185 [once an officer ascertains beyond reasonable doubt that one who has been so arrested is in fact not intoxicated, the arrestee should be released]; Thompson v. Olson (1st Cir. 1986) 798 F.2d 552, 556 [following a legal warrantless arrest based on probable cause, an affirmative duty to release arises if the arresting officer ascertains beyond a reasonable doubt that the basis for the probable cause is unfounded]; Babers v. City of Tallassee (M.D.Ala. 2001) 152 F.Supp.2d 1298, 1308–1309 [following a lawful warrantless arrest, a police officer has an affirmative duty to release an arrestee if he ascertains beyond a reasonable doubt that the probable cause which formed the basis for the arrest was unfounded]; see also Gay v. Wall (4th Cir. 1985) 761 F.2d 175, 179 [opining that deprivation of liberty after police knew defendant was innocent may constitute federal civil rights violation]; but see Panagoulakos v. Yazzie (10th Cir. 2013) 741 F.3d 1126, 1131 [officer enjoyed qualified immunity because existing law did not clearly establish the duty to release arrestee].)

The aforementioned cases concerned civil rights lawsuits, not the seizure of evidence during a warrantless search. And police in these cases typically kept the detainees under arrest for a substantial period of time, whereas defendant here had only been handcuffed for two or three minutes when officers requested his consent for the car search. Thus, we do not infer from these cases that the officers had a duty to release defendant within seconds of discovering the object was a diamond. Nonetheless, once probable cause for the arrest ceased to exist, the police incurred a duty to release defendant within a reasonable amount of time. But rather than remove his handcuffs, they continued to question him while he was unlawfully arrested. The trial court below concluded that an “insignificant” amount of time had passed between the officers' discovery that the object was a diamond and their request for consent to search defendant's car.3Link to the text of the note But regardless of exactly when the police incurred a duty to release defendant, they lacked probable cause for the arrest when they requested consent to search defendant's car. In other words, the issue is not merely the amount of time that passed. Instead, the question is whether the fact that defendant was unlawfully under arrest invalidated his consent because he did not give it voluntarily.

“[W]hether a consent to a search was in fact ‘voluntary’ or was the product of duress or coercion, express or implied, is a question of fact to be determined from the totality of all the circumstances.” (Schneckloth v. Bustamonte (1973) 412 U.S. 218, 227 [36 L. Ed. 2d 854, 93 S. Ct. 2041].) But “[t]he rule is clearly established that consent induced by an illegal search or arrest is not voluntary, and that if the accused consents immediately following an illegal entry or search, his assent is not voluntary because it is inseparable from the unlawful conduct of the officers.” (Burrows v. Superior Court (1974) 13 Cal.3d 238, 251 [118 Cal. Rptr. 166, 529 P.2d 590], italics added; see People v. Johnson (1968) 68 Cal.2d 629, 632 [68 Cal. Rptr. 441, 440 P.2d 921]; People v. Haven (1963) 59 Cal.2d 713, 719 [31 Cal. Rptr. 47, 381 P.2d 927].) The condition of an unlawful arrest renders consent involuntary because such consent is necessarily “‘induced by compulsion, intimidation, oppressive circumstances, or other similar factors inherent in the situation which make that consent less than an act of the free will.’” (People v. Lawler (1973) 9 Cal.3d 156, 164 [107 Cal. Rptr. 13, 507 P.2d 621], quoting and distinguishing Mann v. Superior Court (1970) 3 Cal.3d 1, 8 [88 Cal. Rptr. 380, 472 P.2d 468].) A lengthy passage of time, while likely compounding the compulsory nature of an unlawful arrest, is not a necessary factor in this analysis. Based on the totality of the circumstances, we hold defendant did not voluntarily consent to the search of his car.

Relying on Atwater, the Attorney General argues that, even if the police did not have probable cause for defendant's arrest based on the diamond found in his pocket, the arrest was not unlawful because police could have arrested defendant for the speeding violation. But this is not the law in California. For most traffic infractions, officers may not make a custodial arrest unless some other condition arises—e.g., the motorist fails to produce a driver's license or other identification. (See People v. McKay (2002) 27 Cal.4th 601, 605 [117 Cal. Rptr. 2d 236, 41 P.3d 59]; People v. McGaughran (1979) 25 Cal.3d 577, 583 [159 Cal. Rptr. 191, 601 P.2d 207], citing Veh. Code, §§ 40301–40303, 40504 [regulating release upon a promise to appear for a traffic infraction].) For Fourth Amendment purposes, the California Supreme Court has held that application of the exclusionary rule does not depend on whether the officer complies with these arrest procedures. (McKay, at p. 611.) Nonetheless, Atwater does not authorize police to arrest a driver for an offense unsupported by probable cause merely because the driver is stopped for speeding.

In Atwater, supra, 532 U.S. 318, police arrested a driver for violating a seat belt law. The arrest was supported by probable cause, and state law in Texas authorized a warrantless arrest for such violations. The United States Supreme Court held that the arrest did not violate the Fourth Amendment. (Atwater, at p. 354.) Looking to historical common law, the court concluded that nothing in the traditional protections against search and seizure prohibited police from making arrests for such minor offenses. Atwater thereby establishes that the police officers here could have arrested defendant for speeding without violating the Fourth Amendment. But the officers did not arrest defendant for speeding.

The Attorney General argues that it makes no difference why the police arrested defendant because the officers' subjective intent is irrelevant for Fourth Amendment purposes under Whren v. United States (1996) 517 U.S. 806 [135 L. Ed. 2d 89, 116 S. Ct. 1769] (Whren). Combining Whren and Atwater together, the Attorney General argues that as long as the police could have constitutionally arrested defendant for speeding, it does not matter that they arrested him for some other unrelated offense. For example, in Devenpeck v. Alford (2004) 543 U.S. 146 [160 L. Ed. 2d 537, 125 S. Ct. 588] (Devenpeck), police stopped a motorist suspected of impersonating a police officer. In the course of the stop, police discovered the motorist was recording the stop on a tape recorder. The police arrested the motorist for violating state privacy laws by recording the stop. After a trial court ruled that the tape recording was legal under state privacy laws, the motorist sued the police for unlawful arrest and imprisonment.

Applying Whren, the United States Supreme Court held the arrest was constitutional because the facts could have established probable cause that the motorist was impersonating a police officer, even if that is not why police arrested the motorist. The court held, “Our cases make clear that an arresting officer's state of mind (except for the facts that he knows) is irrelevant to the existence of probable cause. [Citations.] That is to say, his subjective reason for making the arrest need not be the criminal offense as to which the known facts provide probable cause. As we have repeatedly explained, ‘“the fact that the officer does not have the state of mind which is hypothecated by the reasons which provide the legal justification for the officer's action does not invalidate the action taken as long as the circumstances, viewed objectively, justify that action.”’” (Devenpeck, supra, 543 U.S. at p. 153, quoting Whren, supra, 517 U.S. at p. 813.)

As the court noted in Devenpeck, we consider a police officer's state of mind “for the facts that he knows” in formulating probable cause. (Devenpeck, supra, 543 U.S. at p. 153.) But nothing in Whren or Devenpeck suggests that police may arrest a person for an offense when they know the facts before them do not support probable cause that a defendant has committed an offense. To the contrary, the police officers in Whren and Devenpeck clearly held objectively reasonable good faith beliefs in the facts supporting probable cause for the offenses for which they arrested the defendants. These cases are in accord with the long-standing “good faith exception” to the Fourth Amendment's warrant requirement. (See, e.g., United States v. Leon (1984) 468 U.S. 897, 919 [82 L. Ed. 2d 677, 104 S. Ct. 3405] [if the purpose of the exclusionary rule is to deter unlawful police conduct, then evidence obtained from a search should be suppressed only if the law enforcement officer had knowledge, or may properly be charged with knowledge, that the search was unconstitutional].)

By contrast, once the police here discovered that the object in defendant's pocket was a diamond, the facts known by the officers no longer supported his arrest for drug possession. And nothing in the record suggests they held—or reasonably could have held—a good faith belief to the contrary. Accordingly, we do not believe the Attorney General's reliance on Atwater, Whren, and Devenpeck supports the search of defendant's car. This view would allow the police to search and arrest a motorist for any offense—even where officers know there is no evidence that any other offense has been committed—so long as there is probable cause to support a traffic violation (e.g., speeding). We disagree with this view.

The United States Supreme Court underscored this principle in its most recent traffic stop case, Rodriguez, supra, 575 U.S. at p. ___ [135 S.Ct. 1609]. In that case, a police officer lawfully stopped Rodriguez for driving on a highway shoulder, a violation of state law. After checking his driver's license, the officer issued a warning ticket to Rodriguez. But instead of releasing him, the officer continued to detain him until another officer arrived with a drug-sniffing dog. The dog alerted to the presence of drugs, whereupon police searched the car and found methamphetamine. The Supreme Court held the search unconstitutional in the absence of reasonable suspicion to support the dog search. (Id. at p. ___ [135 S.Ct. at p. 1616].) Like the officers here, the police in Rodriguez could have arrested and searched Rodriguez based on the traffic violation—but they did not. Instead, they issued him a warning ticket. Having done so, their subsequent search for drugs could not be justified based on probable cause for the traffic violation. This result makes clear that police may not use probable cause for a traffic violation to justify an arrest for an unrelated offense where, under the facts known to police, they have no probable cause supporting the unrelated offense. (Cf. id. at pp. ___–___ [135 S.Ct. at pp. 1618–1622] (dis. opn. of Thomas, J.) [citing Atwater and Whren].)

For these reasons, we hold the search of defendant's car violated the Fourth Amendment. Defendant did not provide valid consent for the search, and the prosecution failed to show the search was valid under any other exception to the Fourth Amendment's warrant requirement. Accordingly, we will reverse the judgment and remand with instructions to grant the motion to suppress the evidence seized in the car search. As to the evidence seized in the warrant search of defendant's home, a hearing is required to determine the validity of the warrant absent the evidence seized in the car search.

III. Disposition

The judgment is reversed, the conviction is vacated, and the matter is remanded. On remand, the trial court shall vacate its order denying defendant's motion to suppress the evidence seized in the car search and shall enter a new order granting that motion. As to evidence seized in the warrant search of defendant's home, the trial court shall hold a hearing to determine the validity of the warrant absent the evidence seized from defendant's car.

Rushing, P. J., and Grover, J., concurred.

Respondent's petition for review by the Supreme Court was denied August 24, 2016, S235540. Werdegar, J., did not participate therein.

Footnotes

    1Link to the location of the note in the document

    Defendant also contends the abstract of judgment misstates the amount of the penalty assessments imposed by the court. Because we will reverse the judgment, we do not reach this claim.

    2Link to the location of the note in the document

    At oral argument, defendant characterized the “de facto arrest” as an “intolerably intrusive detention” rather than an arrest. Regardless of the nomenclature used, we will analyze the specific facts of this case under applicable case law to determine whether probable cause was necessary to justify the degree of intrusion imposed during the handcuffing.

    3Link to the location of the note in the document

    Because the trial court's conclusion necessarily implied the search was constitutional, we consider this conclusion a matter of law, not a factual finding.

~~~~~~~~~~~~~

DESHANEY v. WINNEBAGO CTY. SOC. SERVS. DEPT., 489 U.S. 189 (1989)

DESHANEY, A MINOR, BY HIS GUARDIAN AD LITEM, ET AL. v. WINNEBAGO COUNTY
DEPARTMENT OF SOCIAL SERVICES ET AL.
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SEVENTH CIRCUIT
No. 87-154.

Argued November 2, 1988
Decided February 22, 1989

Petitioner is a child who was subjected to a series of beatings by his father, with whom he lived. Respondents, a county department of social services and several of its social workers, received complaints that petitioner was being abused by his father and took various steps to protect him; they did not, however, act to remove petitioner from his father's custody. Petitioner's father finally beat him so severely that he suffered permanent brain damage and was rendered profoundly retarded. Petitioner and his mother sued respondents under 42 U.S.C. 1983, alleging that respondents had deprived petitioner of his liberty interest in bodily integrity, in violation of his rights under the substantive component of the Fourteenth Amendment's Due Process Clause, by failing to intervene to protect him against his father's violence. The District Court granted summary judgment for respondents, and the Court of Appeals affirmed.

Held:

Respondents' failure to provide petitioner with adequate protection against his father's violence did not violate his rights under the substantive component of the Due Process Clause. Pp. 194-203.

      (a) A State's failure to protect an individual against private violence generally does not constitute a violation of the Due Process Clause, because the Clause imposes no duty on the State to provide members of the general public with adequate protective services. The Clause is phrased as a limitation on the State's power to act, not as a guarantee of certain minimal levels of safety and security; while it forbids the State itself to deprive individuals of life, liberty, and property without due process of law, its language cannot fairly be read to impose an affirmative obligation on the State to ensure that those interests do not come to harm through other means. Pp. 194-197.

      (b) There is no merit to petitioner's contention that the State's knowledge of his danger and expressions of willingness to protect him against that danger established a "special relationship" giving rise to an affirmative constitutional duty to protect. While certain "special relationships" created or assumed by the State with respect to particular individuals may give rise to an affirmative duty, enforceable through the Due Process [489 U.S. 189, 190]   Clause, to provide adequate protection, see Estelle v. Gamble, 429 U.S. 97 ; Youngberg v. Romeo, 457 U.S. 307 , the affirmative duty to protect arises not from the State's knowledge of the individual's predicament or from its expressions of intent to help him, but from the limitations which it has imposed on his freedom to act on his own behalf, through imprisonment, institutionalization, or other similar restraint of personal liberty. No such duty existed here, for the harms petitioner suffered occurred not while the State was holding him in its custody, but while he was in the custody of his natural father, who was in no sense a state actor. While the State may have been aware of the dangers that he faced, it played no part in their creation, nor did it do anything to render him more vulnerable to them. Under these circumstances, the Due Process Clause did not impose upon the State an affirmative duty to provide petitioner with adequate protection. Pp. 197-201.

      (c) It may well be that by voluntarily undertaking to provide petitioner with protection against a danger it played no part in creating, the State acquired a duty under state tort law to provide him with adequate protection against that danger. But the Due Process Clause does not transform every tort committed by a state actor into a constitutional violation. Pp. 201-202.

812 F.2d. 298, affirmed.

REHNQUIST, C. J., delivered the opinion of the Court, in which WHITE, STEVENS, O'CONNOR, SCALIA, and KENNEDY, JJ., joined. BRENNAN, J., filed a dissenting opinion, in which MARSHALL and BLACKMUN, JJ., joined, post, p. 203. BLACKMUN, J., filed a dissenting opinion, post, p. 212.

Donald J. Sullivan argued the cause for petitioners. With him on the briefs was Curry First.

Mark J. Mingo argued the cause for respondents. With him on the brief were Wayne M. Yankala and Joel I. Klein.

Deputy Solicitor General Ayer argued the cause for the United States as amicus curiae urging affirmance. With him on the brief were Solicitor General Fried, Assistant Attorney General Bolton, Roy T. Englert, Jr., Barbara L. Herwig, and John S. Koppel. *

[ Footnote * ] Briefs of amici curiae urging reversal were filed for the American Civil Liberties Union Children's Rights Project et al. by Christopher A. Hansen, Marcia Robinson Lowry, John A. Powell, Steven R. Shapiro, and [489 U.S. 189, 191]   Helen Hershkoff; and for the Massachusetts Committee for Children and Youth by Laura L. Carroll.

Briefs urging affirmance were filed for the State of New York et al. by Robert Abrams, Attorney General of New York, O. Peter Sherwood, Solicitor General, Peter H. Schiff, Deputy Solicitor General, and Michael S. Buskus, Assistant Attorney General, Joseph I. Lieberman, Attorney General of Connecticut, J. Joseph Curran, Jr., Attorney General of Maryland, Dave Frohnmayer, Attorney General of Oregon, LeRoy S. Zimmerman, Attorney General of Pennsylvania, Donald J. Hanaway, Attorney General of Wisconsin, and Charles Hoornstra, Assistant Attorney General; and for the National Association of Counties et al. by Benna Ruth Solomon and Douglas A. Poe.

Gwendolyn H. Gregory, August W. Steinhilber, and Thomas A. Shannon filed a brief for the National School Boards Association as amicus curiae. [489 U.S. 189, 191]

CHIEF JUSTICE REHNQUIST delivered the opinion of the Court.

Petitioner is a boy who was beaten and permanently injured by his father, with whom he lived. Respondents are social workers and other local officials who received complaints that petitioner was being abused by his father and had reason to believe that this was the case, but nonetheless did not act to remove petitioner from his father's custody. Petitioner sued respondents claiming that their failure to act deprived him of his liberty in violation of the Due Process Clause of the Fourteenth Amendment to the United States Constitution. We hold that it did not.

The facts of this case are undeniably tragic.   Petitioner Joshua DeShaney was born in 1979.   In 1980, a Wyoming court granted his parents a divorce and awarded custody of Joshua to his father, Randy DeShaney.   The father shortly thereafter moved to Neenah, a city located in Winnebago County, Wisconsin, taking the infant Joshua with him.   There he entered into a second marriage, which also ended in divorce. [489 U.S. 189, 192]

The Winnebago County authorities first learned that Joshua DeShaney might be a victim of child abuse in January 1982, when his father's second wife complained to the police, at the time of their divorce, that he had previously "hit the boy causing marks and [was] a prime case for child abuse." App. 152-153.   The Winnebago County Department of Social Services (DSS) interviewed the father, but he denied the accusations, and DSS did not pursue them further.   In January 1983, Joshua was admitted to a local hospital with multiple bruises and abrasions.   The examining physician suspected child abuse and notified DSS, which immediately obtained an order from a Wisconsin juvenile court placing Joshua in the temporary custody of the hospital. Three days later, the county convened an ad hoc "Child Protection Team" - consisting of a pediatrician, a psychologist, a police detective, the county's lawyer, several DSS case-workers, and various hospital personnel - to consider Joshua's situation.   At this meeting, the Team decided that there was insufficient evidence of child abuse to retain Joshua in the custody of the court.   The Team did, however, decide to recommend several measures to protect Joshua, including enrolling him in a preschool program, providing his father with certain counselling services, and encouraging his father's girlfriend to move out of the home.   Randy DeShaney entered into a voluntary agreement with DSS in which he promised to cooperate with them in accomplishing these goals.

Based on the recommendation of the Child Protection Team, the juvenile court dismissed the child protection case and returned Joshua to the custody of his father.   A month later, emergency room personnel called the DSS caseworker handling Joshua's case to report that he had once again been treated for suspicious injuries. The caseworker concluded that there was no basis for action. For the next six months, the caseworker made monthly visits to the DeShaney home, during which she observed a number of suspicious injuries on [489 U.S. 189, 193]   Joshua's head; she also noticed that he had not been enrolled in school, and that the girlfriend had not moved out.   The caseworker dutifully recorded these incidents in her files, along with her continuing suspicions that someone in the DeShaney household was physically abusing Joshua, but she did nothing more.   In November 1983, the emergency room notified DSS that Joshua had been treated once again for injuries that they believed to be caused by child abuse.   On the caseworker's next two visits to the DeShaney home, she was told that Joshua was too ill to see her. Still DSS took no action.

In March 1984, Randy DeShaney beat 4-year-old Joshua so severely that he fell into a life-threatening coma.   Emergency brain surgery revealed a series of hemorrhages caused by traumatic injuries to the head inflicted over a long period of time.   Joshua did not die, but he suffered brain damage so severe that he is expected to spend the rest of his life confined to an institution for the profoundly retarded. Randy DeShaney was subsequently tried and convicted of child abuse.

Joshua and his mother brought this action under 42 U.S.C. 1983 in the United States District Court for the Eastern District of Wisconsin against respondents Winnebago County, DSS, and various individual employees of DSS.   The complaint alleged that respondents had deprived Joshua of his liberty without due process of law, in violation of his rights under the Fourteenth Amendment, by failing to intervene to protect him against a risk of violence at his father's hands of which they knew or should have known.   The District Court granted summary judgment for respondents.

The Court of Appeals for the Seventh Circuit affirmed, 812 F.2d 298 (1987), holding that petitioners had not made out an actionable 1983 claim for two alternative reasons.   First, the court held that the Due Process Clause of the Fourteenth Amendment does not require a state or local governmental entity to protect its citizens from "private violence, or other [489 U.S. 189, 194]   mishaps not attributable to the conduct of its employees." Id., at 301. In so holding, the court specifically rejected the position endorsed by a divided panel of the Third Circuit in Estate of Bailey by Oare v. County of York, 768 F.2d 503, 510-511 (1985), and by dicta in Jensen v. Conrad, 747 F.2d 185, 190-194 (CA4 1984), cert. denied, 470 U.S. 1052 (1985), that once the State learns that a particular child is in danger of abuse from third parties and actually undertakes to protect him from that danger, a "special relationship" arises between it and the child which imposes an affirmative constitutional duty to provide adequate protection. 812 F.2d, at 303-304.   Second, the court held, in reliance on our decision in Martinez v. California, 444 U.S. 277, 285 (1980), that the casual connection between respondents' conduct and Joshua's injuries was too attenuated to establish a deprivation of constitutional rights actionable under 1983. 812 F.2d, at 301-303.   The court therefore found it unnecessary to reach the question whether respondents' conduct evinced the "state of mind" necessary to make out a due process claim after Daniels v. Williams, 474 U.S. 327 (1986), and Davidson v. Cannon, 474 U.S. 344 (1986). 812 F.2d, at 302.

Because of the inconsistent approaches taken by the lower courts in determining when, if ever, the failure of a state or local governmental entity or its agents to provide an individual with adequate protective services constitutes a violation of the individual's due process rights, see Archie v. Racine, 847 F.2d 1211, 1220-1223, and n. 10 (CA7 1988) (en banc) (collecting cases), cert. pending, No. 88-576, and the importance of the issue to the administration of state and local governments, we granted certiorari. 485 U.S. 958 (1988). We now affirm.

The Due Process Clause of the Fourteenth Amendment provides that "[n]o State shall . . . deprive any person of life, liberty, or property, without due process of law." Petitioners [489 U.S. 189, 195]   contend that the State 1 deprived Joshua of his liberty interest in "free[dom] from . . . unjustified intrusions on personal security," see Ingraham v. Wright, 430 U.S. 651, 673 (1977), by failing to provide him with adequate protection against his father's violence.   The claim is one invoking the substantive rather than the procedural component of the Due Process Clause; petitioners do not claim that the State denied Joshua protection without according him appropriate procedural safeguards, see Morrissey v. Brewer, 408 U.S. 471, 481 (1972), but that it was categorically obligated to protect him in these circumstances, see Youngberg v. Romeo, 457 U.S. 307, 309 (1982). 2

But nothing in the language of the Due Process Clause itself requires the State to protect the life, liberty, and property of its citizens against invasion by private actors.   The Clause is phrased as a limitation on the State's power to act, not as a guarantee of certain minimal levels of safety and security.   It forbids the State itself to deprive individuals of life, liberty, or property without "due process of law," but its language cannot fairly be extended to impose an affirmative obligation on the State to ensure that those interests do not come to harm through other means.   Nor does history support such an expansive reading of the constitutional text. [489 U.S. 189, 196]   Like its counterpart in the Fifth Amendment, the Due Process Clause of the Fourteenth Amendment was intended to prevent government "from abusing [its] power, or employing it as an instrument of oppression," Davidson v. Cannon, supra, at 348; see also Daniels v. Williams, supra, at 331 ("`"to secure the individual from the arbitrary exercise of the powers of government,"'" and "to prevent governmental power from being `used for purposes of oppression'") (internal citations omitted); Parratt v. Taylor, 451 U.S. 527, 549 (1981) (Powell, J., concurring in result) (to prevent the "affirmative abuse of power").   Its purpose was to protect the people from the State, not to ensure that the State protected them from each other.   The Framers were content to leave the extent of governmental obligation in the latter area to the democratic political processes.

Consistent with these principles, our cases have recognized that the Due Process Clauses generally confer no affirmative right to governmental aid, even where such aid may be necessary to secure life, liberty, or property interests of which the government itself may not deprive the individual. See, e. g., Harris v. McRae, 448 U.S. 297, 317 -318 (1980) (no obligation to fund abortions or other medical services) (discussing Due Process Clause of Fifth Amendment); Lindsey v. Normet, 405 U.S. 56, 74 (1972) (no obligation to provide adequate housing) (discussing Due Process Clause of Fourteenth Amendment); see also Youngberg v. Romeo, supra, at 317 ("As a general matter, a State is under no constitutional duty to provide substantive services for those within its border").   As we said in Harris v. McRae: "Although the liberty protected by the Due Process Clause affords protection against unwarranted government interference . . ., it does not confer an entitlement to such [governmental aid] as may be necessary to realize all the advantages of that freedom." 448 U.S., at 317 -318 (emphasis added).   If the Due Process Clause does not require the State to provide its citizens with particular protective services, it follows that the State cannot [489 U.S. 189, 197]   be held liable under the Clause for injuries that could have been averted had it chosen to provide them. 3   As a general matter, then, we conclude that a State's failure to protect an individual against private violence simply does not constitute a violation of the Due Process Clause.

Petitioners contend, however, that even if the Due Process Clause imposes no affirmative obligation on the State to provide the general public with adequate protective services, such a duty may arise out of certain "special relationships" created or assumed by the State with respect to particular individuals.   Brief for Petitioners 13-18. Petitioners argue that such a "special relationship" existed here because the State knew that Joshua faced a special danger of abuse at his father's hands, and specifically proclaimed, by word and by deed, its intention to protect him against that danger. Id., at 18-20.   Having actually undertaken to protect Joshua from this danger - which petitioners concede the State played no part in creating - the State acquired an affirmative "duty," enforceable through the Due Process Clause, to do so in a reasonably competent fashion.   Its failure to discharge that duty, so the argument goes, was an abuse of governmental power that so "shocks the conscience," Rochin v. California, 342 U.S. 165, 172 (1952), as to constitute a substantive due process violation. Brief for Petitioners 20. 4   [489 U.S. 189, 198]

We reject this argument.   It is true that in certain limited circumstances the Constitution imposes upon the State affirmative duties of care and protection with respect to particular individuals.   In Estelle v. Gamble, 429 U.S. 97 (1976), we recognized that the Eighth Amendment's prohibition against cruel and unusual punishment, made applicable to the States through the Fourteenth Amendment's Due Process Clause, Robinson v. California, 370 U.S. 660 (1962), requires the State to provide adequate medical care to incarcerated prisoners. 429 U.S., at 103 -104. 5   We reasoned [489 U.S. 189, 199]   that because the prisoner is unable "`by reason of the deprivation of his liberty [to] care for himself,'" it is only "`just'" that the State be required to care for him. Ibid., quoting Spicer v. Williamson, 191 N.C. 487, 490, 132 S. E. 291, 293 (1926).

In Youngberg v. Romeo, 457 U.S. 307 (1982), we extended this analysis beyond the Eighth Amendment setting, 6 holding that the substantive component of the Fourteenth Amendment's Due Process Clause requires the State to provide involuntarily committed mental patients with such services as are necessary to ensure their "reasonable safety" from themselves and others. Id., at 314-325; see id., at 315, 324 (dicta indicating that the State is also obligated to provide such individuals with "adequate food, shelter, clothing, and medical care").   As we explained: "If it is cruel and unusual punishment to hold convicted criminals in unsafe conditions, it must be unconstitutional [under the Due Process Clause] to confine the involuntarily committed - who may not be punished at all - in unsafe conditions." Id., at 315-316; see also Revere v. Massachusetts General Hospital, 463 U.S. 239, 244 (1983) (holding that the Due Process Clause requires the responsible government or governmental agency to provide medical care to suspects in police custody who have been injured while being apprehended by the police).

But these cases afford petitioners no help.   Taken together, they stand only for the proposition that when the State takes a person into its custody and holds him there [489 U.S. 189, 200]   against his will, the Constitution imposes upon it a corresponding duty to assume some responsibility for his safety and general well-being. See Youngberg v. Romeo, supra, at 317 ("When a person is institutionalized - and wholly dependent on the State[,] . . . a duty to provide certain services and care does exist"). 7   The rationale for this principle is simple enough: when the State by the affirmative exercise of its power so restrains an individual's liberty that it renders him unable to care for himself, and at the same time fails to provide for his basic human needs - e. g., food, clothing, shelter, medical care, and reasonable safety - it transgresses the substantive limits on state action set by the Eighth Amendment and the Due Process Clause. See Estelle v. Gamble, supra, at 103-104; Youngberg v. Romeo, supra, at 315-316.   The affirmative duty to protect arises not from the State's knowledge of the individual's predicament or from its expressions of intent to help him, but from the limitation which it has imposed on his freedom to act on his own behalf. See Estelle v. Gamble, supra, at 103 ("An inmate must rely on prison authorities to treat his medical needs; if the authorities fail to do so, those needs will not be met").   In the substantive due process analysis, it is the State's affirmative act of restraining the individual's freedom to act on his own behalf - through incarceration, institutionalization, or other similar restraint of personal liberty - which is the "deprivation of liberty" triggering the protections of the Due Process Clause, not its failure to act to protect his liberty interests against harms inflicted by other means. 8   [489 U.S. 189, 201]

The Estelle-Youngberg analysis simply has no applicability in the present case.   Petitioners concede that the harms Joshua suffered occurred not while he was in the State's custody, but while he was in the custody of his natural father, who was in no sense a state actor. 9   While the State may have been aware of the dangers that Joshua faced in the free world, it played no part in their creation, nor did it do anything to render him any more vulnerable to them.   That the State once took temporary custody of Joshua does not alter the analysis, for when it returned him to his father's custody, it placed him in no worse position than that in which he would have been had it not acted at all; the State does not become the permanent guarantor of an individual's safety by having once offered him shelter.   Under these circumstances, the State had no constitutional duty to protect Joshua.

It may well be that, by voluntarily undertaking to protect Joshua against a danger it concededly played no part in creating, the State acquired a duty under state tort law to provide [489 U.S. 189, 202]   him with adequate protection against that danger.   See Restatement (Second) of Torts 323 (1965) (one who undertakes to render services to another may in some circumstances be held liable for doing so in a negligent fashion); see generally W. Keeton, D. Dobbs, R. Keeton, & D. Owen, Prosser and Keeton on the Law of Torts 56 (5th ed. 1984) (discussing "special relationships" which may give rise to affirmative duties to act under the common law of tort).   But the claim here is based on the Due Process Clause of the Fourteenth Amendment, which, as we have said many times, does not transform every tort committed by a state actor into a constitutional violation. See Daniels v. Williams, 474 U.S., at 335 -336; Parratt v. Taylor, 451 U.S., at 544 ; Martinez v. California, 444 U.S. 277, 285 (1980); Baker v. McCollan, 443 U.S. 137, 146 (1979); Paul v. Davis, 424 U.S. 693, 701 (1976). A State may, through its courts and legislatures, impose such affirmative duties of care and protection upon its agents as it wishes.   But not "all common-law duties owed by government actors were . . . constitutionalized by the Fourteenth Amendment." Daniels v. Williams, supra, at 335. Because, as explained above, the State had no constitutional duty to protect Joshua against his father's violence, its failure to do so - though calamitous in hindsight - simply does not constitute a violation of the Due Process Clause. 10

Judges and lawyers, like other humans, are moved by natural sympathy in a case like this to find a way for Joshua and his mother to receive adequate compensation for the grievous [489 U.S. 189, 203]   harm inflicted upon them.   But before yielding to that impulse, it is well to remember once again that the harm was inflicted not by the State of Wisconsin, but by Joshua's father.   The most that can be said of the state functionaries in this case is that they stood by and did nothing when suspicious circumstances dictated a more active role for them. In defense of them it must also be said that had they moved too soon to take custody of the son away from the father, they would likely have been met with charges of improperly intruding into the parent-child relationship, charges based on the same Due Process Clause that forms the basis for the present charge of failure to provide adequate protection.

The people of Wisconsin may well prefer a system of liability which would place upon the State and its officials the responsibility for failure to act in situations such as the present one.   They may create such a system, if they do not have it already, by changing the tort law of the State in accordance with the regular lawmaking process.   But they should not have it thrust upon them by this Court's expansion of the Due Process Clause of the Fourteenth Amendment.

      Affirmed.

Footnotes
[ Footnote 1 ] As used here, the term "State" refers generically to state and local governmental entities and their agents.

[ Footnote 2 ] Petitioners also argue that the Wisconsin child protection statutes gave Joshua an "entitlement" to receive protective services in accordance with the terms of the statute, an entitlement which would enjoy due process protection against state deprivation under our decision in Board of Regents of State Colleges v. Roth, 408 U.S. 564 (1972). Brief for Petitioners 24-29.   But this argument is made for the first time in petitioners' brief to this Court: it was not pleaded in the complaint, argued to the Court of Appeals as a ground for reversing the District Court, or raised in the petition for certiorari. We therefore decline to consider it here. See Youngberg v. Romeo, 457 U.S., at 316 , n. 19; Dothard v. Rawlinson, 433 U.S. 321, 323 , n. 1 (1977); Duignan v. United States, 274 U.S. 195, 200 (1927); Old Jordan Mining & Milling Co. v. Societe Anonyme des Mines, 164 U.S. 261, 264 -265 (1896).

[ Footnote 3 ] The State may not, of course, selectively deny its protective services to certain disfavored minorities without violating the Equal Protection Clause. See Yick Wo v. Hopkins, 118 U.S. 356 (1886). But no such argument has been made here.

[ Footnote 4 ] The genesis of this notion appears to lie in a statement in our opinion in Martinez v. California, 444 U.S. 277 (1980).   In that case, we were asked to decide, inter alia, whether state officials could be held liable under the Due Process Clause of the Fourteenth Amendment for the death of a private citizen at the hands of a parolee.   Rather than squarely confronting the question presented here - whether the Due Process Clause imposed upon the State an affirmative duty to protect - we affirmed the dismissal of the claim on the narrower ground that the causal connection between the state officials' decision to release the parolee from prison and the murder [489 U.S. 189, 198]   was too attenuated to establish a "deprivation" of constitutional rights within the meaning of 1983. Id., at 284-285. But we went on to say:

          "[T]he parole board was not aware that appellants' decedent, as distinguished from the public at large, faced any special danger.   We need not and do not decide that a parole officer could never be deemed to `deprive' someone of life by action taken in connection with the release of a prisoner on parole.    But we do hold that at least under the particular circumstances of this parole decision, appellants' decedent's death is too remote a consequence of the parole officers' action to hold them responsible under the federal civil rights law." Id., at 285 (footnote omitted).

Several of the Courts of Appeals have read this language as implying that once the State learns that a third party poses a special danger to an identified victim, and indicates its willingness to protect the victim against that danger, a "special relationship" arises between State and victim, giving rise to an affirmative duty, enforceable through the Due Process Clause, to render adequate protection. See Estate of Bailey by Oare v. County of York, 768 F.2d 503, 510-511 (CA3 1985); Jensen v. Conrad, 747 F.2d 185, 190-194, and n. 11 (CA4 1984) (dicta), cert. denied, 470 U.S. 1052 (1985)); Balistreri v. Pacifica Police Dept., 855 F.2d 1421, 1425-1426 (CA9 1988). But see, in addition to the opinion of the Seventh Circuit below, Estate of Gilmore v. Buckley, 787 F.2d 714, 720-723 (CA1), cert. denied, 479 U.S. 882 (1986); Harpole v. Arkansas Dept. of Human Services, 820 F.2d 923, 926-927 (CA8 1987); Wideman v. Shallowford Community Hospital Inc., 826 F.2d 1030, 1034-1037 (CA11 1987).

[ Footnote 5 ] To make out an Eighth Amendment claim based on the failure to provide adequate medical care, a prisoner must show that the state defendants exhibited "deliberate indifference" to his "serious" medical needs; the mere negligent or inadvertent failure to provide adequate care is not enough. Estelle v. Gamble, 429 U.S., at 105 -106. In Whitley v. Albers, 475 U.S. 312   [489 U.S. 189, 199]   (1986), we suggested that a similar state of mind is required to make out a substantive due process claim in the prison setting. Id., at 326-327.

[ Footnote 6 ] The Eighth Amendment applies "only after the State has complied with the constitutional guarantees traditionally associated with criminal prosecutions. . . . [T]he State does not acquire the power to punish with which the Eighth Amendment is concerned until after it has secured a formal adjudication of guilt in accordance with due process of law." Ingraham v. Wright, 430 U.S. 651, 671 -672, n. 40 (1977); see also Revere v. Massachusetts General Hospital, 463 U.S. 239, 244 (1983); Bell v. Wolfish, 441 U.S. 520, 535 , n. 16 (1979).

[ Footnote 7 ] Even in this situation, we have recognized that the State "has considerable discretion in determining the nature and scope of its responsibilities." Youngberg v. Romeo, 457 U.S., at 317 .

[ Footnote 8 ] Of course, the protections of the Due Process Clause, both substantive and procedural, may be triggered when the State, by the affirmative acts of its agents, subjects an involuntarily confined individual to deprivations of liberty which are not among those generally authorized by his confinement. See, e. g., Whitley v. Albers, supra, at 326-327 (shooting inmate); Youngberg v. Romeo, supra, at 316 (shackling involuntarily committed [489 U.S. 189, 201]   mental patient); Hughes v. Rowe, 449 U.S. 5, 11 (1980) (removing inmate from general prison population and confining him to administrative segregation); Vitek v. Jones, 445 U.S. 480, 491 -494 (1980) (transferring inmate to mental health facility).

[ Footnote 9 ] Complaint   16, App. 6 ("At relevant times to and until March 8, 1984, [the date of the final beating,] Joshua DeShaney was in the custody and control of Defendant Randy DeShaney").   Had the State by the affirmative exercise of its power removed Joshua from free society and placed him in a foster home operated by its agents, we might have a situation sufficiently analogous to incarceration or institutionalization to give rise to an affirmative duty to protect. Indeed, several Courts of Appeals have held, by analogy to Estelle and Youngberg, that the State may be held liable under the Due Process Clause for failing to protect children in foster homes from mistreatment at the hands of their foster parents. See Doe v. New York City Dept. of Social Services, 649 F.2d 134, 141-142 (CA2 1981), after remand, 709 F.2d 782, cert. denied sub nom. Catholic Home Bureau v. Doe, 464 U.S. 864 (1983); Taylor ex rel. Walker v. Ledbetter, 818 F.2d 791, 794-797 (CA11 1987) (en banc), cert. pending Ledbetter v. Taylor, No. 87-521.   We express no view on the validity of this analogy, however, as it is not before us in the present case.

[ Footnote 10 ] Because we conclude that the Due Process Clause did not require the State to protect Joshua from his father, we need not address respondents' alternative argument that the individual state actors lacked the requisite "state of mind" to make out a due process violation. See Daniels v. Williams, 474 U.S., at 334 , n. 3.   Similarly, we have no occasion to consider whether the individual respondents might be entitled to a qualified immunity defense, see Anderson v. Creighton, 483 U.S. 635 (1987), or whether the allegations in the complaint are sufficient to support a 1983 claim against the county and DSS under Monell v. New York City Dept. of Social Services, 436 U.S. 658 (1978), and its progeny.

JUSTICE BRENNAN, with whom JUSTICE MARSHALL and JUSTICE BLACKMUN join, dissenting.

      "The most that can be said of the state functionaries in this case," the Court today concludes, "is that they stood by and did nothing when suspicious circumstances dictated a more active role for them." Ante this page.   Because I believe that this description of respondents' conduct tells only part of the story and that, accordingly, the Constitution itself "dictated a more active role" for respondents in the circumstances presented here, I cannot agree that respondents had no constitutional duty to help Joshua DeShaney.

It may well be, as the Court decides, ante, at 194-197, that the Due Process Clause as construed by our prior cases creates no general right to basic governmental services.   That, [489 U.S. 189, 204]   however, is not the question presented here; indeed, that question was not raised in the complaint, urged on appeal, presented in the petition for certiorari, or addressed in the briefs on the merits.   No one, in short, has asked the Court to proclaim that, as a general matter, the Constitution safeguards positive as well as negative liberties.

This is more than a quibble over dicta; it is a point about perspective, having substantive ramifications. In a constitutional setting that distinguishes sharply between action and inaction, one's characterization of the misconduct alleged under 1983 may effectively decide the case. Thus, by leading off with a discussion (and rejection) of the idea that the Constitution imposes on the States an affirmative duty to take basic care of their citizens, the Court foreshadows - perhaps even preordains - its conclusion that no duty existed even on the specific facts before us. This initial discussion establishes the baseline from which the Court assesses the DeShaneys' claim that, when a State has - "by word and by deed," ante, at 197 - announced an intention to protect a certain class of citizens and has before it facts that would trigger that protection under the applicable state law, the Constitution imposes upon the State an affirmative duty of protection.

The Court's baseline is the absence of positive rights in the Constitution and a concomitant suspicion of any claim that seems to depend on such rights.   From this perspective, the DeShaneys' claim is first and foremost about inaction (the failure, here, of respondents to take steps to protect Joshua), and only tangentially about action (the establishment of a state program specifically designed to help children like Joshua).   And from this perspective, holding these Wisconsin officials liable - where the only difference between this case and one involving a general claim to protective services is Wisconsin's establishment and operation of a program to protect children - would seem to punish an effort that we should seek to promote. [489 U.S. 189, 205]

I would begin from the opposite direction. I would focus first on the action that Wisconsin has taken with respect to Joshua and children like him, rather than on the actions that the State failed to take.   Such a method is not new to this Court. Both Estelle v. Gamble, 429 U.S. 97 (1976), and Youngberg v. Romeo, 457 U.S. 307 (1982), began by emphasizing that the States had confined J. W. Gamble to prison and Nicholas Romeo to a psychiatric hospital.   This initial action rendered these people helpless to help themselves or to seek help from persons unconnected to the government. See Estelle, supra, at 104 ("[I]t is but just that the public be required to care for the prisoner, who cannot by reason of the deprivation of his liberty, care for himself"); Youngberg, supra, at 317 ("When a person is institutionalized - and wholly dependent on the State - it is conceded by petitioners that a duty to provide certain services and care does exist"). Cases from the lower courts also recognize that a State's actions can be decisive in assessing the constitutional significance of subsequent inaction.   For these purposes, moreover, actual physical restraint is not the only state action that has been considered relevant. See, e. g., White v. Rochford, 592 F.2d 381 (CA7 1979) (police officers violated due process when, after arresting the guardian of three young children, they abandoned the children on a busy stretch of highway at night).

Because of the Court's initial fixation on the general principle that the Constitution does not establish positive rights, it is unable to appreciate our recognition in Estelle and Youngberg that this principle does not hold true in all circumstances.   Thus, in the Court's view, Youngberg can be explained (and dismissed) in the following way: "In the substantive due process analysis, it is the State's affirmative act of restraining the individual's freedom to act on his own behalf - through incarceration, institutionalization, or other similar restraint of personal liberty - which is the `deprivation of liberty' triggering the protections of the Due Process [489 U.S. 189, 206]   Clause, not its failure to act to protect his liberty interests against harms inflicted by other means." Ante, at 200.   This restatement of Youngberg's holding should come as a surprise when one recalls our explicit observation in that case that Romeo did not challenge his commitment to the hospital, but instead "argue[d] that he ha[d] a constitutionally protected liberty interest in safety, freedom of movement, and training within the institution; and that petitioners infringed these rights by failing to provide constitutionally required conditions of confinement." 457 U.S., at 315 (emphasis added). I do not mean to suggest that "the State's affirmative act of restraining the individual's freedom to act on his own behalf," ante, at 200, was irrelevant in Youngberg; rather, I emphasize that this conduct would have led to no injury, and consequently no cause of action under 1983, unless the State then had failed to take steps to protect Romeo from himself and from others.   In addition, the Court's exclusive attention to state-imposed restraints of "the individual's freedom to act on his own behalf," ante, at 200, suggests that it was the State that rendered Romeo unable to care for himself, whereas in fact - with an I. Q. of between 8 and 10, and the mental capacity of an 18-month-old child, 457 U.S., at 309 - he had been quite incapable of taking care of himself long before the State stepped into his life.   Thus, the fact of hospitalization was critical in Youngberg not because it rendered Romeo helpless to help himself, but because it separated him from other sources of aid that, we held, the State was obligated to replace. Unlike the Court, therefore, I am unable to see in Youngberg a neat and decisive divide between action and inaction.

Moreover, to the Court, the only fact that seems to count as an "affirmative act of restraining the individual's freedom to act on his own behalf" is direct physical control. Ante, at 200 (listing only "incarceration, institutionalization, [and] other similar restraint of personal liberty" in describing relevant "affirmative acts").   I would not, however, give Youngberg [489 U.S. 189, 207]   and Estelle such a stingy scope.   I would recognize, as the Court apparently cannot, that "the State's knowledge of [an] individual's predicament [and] its expressions of intent to help him" can amount to a "limitation . . . on his freedom to act on his own behalf" or to obtain help from others. Ante, at 200.   Thus, I would read Youngberg and Estelle to stand for the much more generous proposition that, if a State cuts off private sources of aid and then refuses aid itself, it cannot wash its hands of the harm that results from its inaction.

Youngberg and Estelle are not alone in sounding this theme. In striking down a filing fee as applied to divorce cases brought by indigents, see Boddie v. Connecticut, 401 U.S. 371 (1971), and in deciding that a local government could not entirely foreclose the opportunity to speak in a public forum, see, e. g., Schneider v. State, 308 U.S. 147 (1939); Hague v. Committee for Industrial Organization, 307 U.S. 496 (1939); United States v. Grace, 461 U.S. 171 (1983), we have acknowledged that a State's actions - such as the monopolization of a particular path of relief - may impose upon the State certain positive duties.   Similarly, Shelley v. Kraemer, 334 U.S. 1 (1948), and Burton v. Wilmington Parking Authority, 365 U.S. 715 (1961), suggest that a State may be found complicit in an injury even if it did not create the situation that caused the harm.

Arising as they do from constitutional contexts different from the one involved here, cases like Boddie and Burton are instructive rather than decisive in the case before us.   But they set a tone equally well established in precedent as, and contradictory to, the one the Court sets by situating the DeShaneys' complaint within the class of cases epitomized by the Court's decision in Harris v. McRae, 448 U.S. 297 (1980).   The cases that I have cited tell us that Goldberg v. Kelly, 397 U.S. 254 (1970) (recognizing entitlement to welfare under state law), can stand side by side with Dandridge v. Williams, 397 U.S. 471, 484 (1970) (implicitly rejecting idea that welfare is a fundamental right), and that Goss v. [489 U.S. 189, 208]   Lopez, 419 U.S. 565, 573 (1975) (entitlement to public education under state law), is perfectly consistent with San Antonio Independent School Dist. v. Rodriguez, 411 U.S. 1, 29 -39 (1973) (no fundamental right to education). To put the point more directly, these cases signal that a State's prior actions may be decisive in analyzing the constitutional significance of its inaction.   I thus would locate the DeShaneys' claims within the framework of cases like Youngberg and Estelle, and more generally, Boddie and Schneider, by considering the actions that Wisconsin took with respect to Joshua.

Wisconsin has established a child-welfare system specifically designed to help children like Joshua. Wisconsin law places upon the local departments of social services such as respondent (DSS or Department) a duty to investigate reported instances of child abuse. See Wis. Stat. 48.981(3) (1987-1988).   While other governmental bodies and private persons are largely responsible for the reporting of possible cases of child abuse, see 48.981(2), Wisconsin law channels all such reports to the local departments of social services for evaluation and, if necessary, further action. 48.981(3).   Even when it is the sheriff's office or police department that receives a report of suspected child abuse, that report is referred to local social services departments for action, see 48.981(3)(a); the only exception to this occurs when the reporter fears for the child's immediate safety. 48.981(3)(b). In this way, Wisconsin law invites - indeed, directs - citizens and other governmental entities to depend on local departments of social services such as respondent to protect children from abuse.

The specific facts before us bear out this view of Wisconsin's system of protecting children. Each time someone voiced a suspicion that Joshua was being abused, that information was relayed to the Department for investigation and possible action.   When Randy DeShaney's second wife told the police that he had "`hit the boy causing marks and [was] a prime case for child abuse,'" the police referred her [489 U.S. 189, 209]   complaint to DSS. Ante, at 192.   When, on three separate occasions, emergency room personnel noticed suspicious injuries on Joshua's body, they went to DSS with this information. Ante, at 192-193.   When neighbors informed the police that they had seen or heard Joshua's father or his father's lover beating or otherwise abusing Joshua, the police brought these reports to the attention of DSS. App. 144-145.   And when respondent Kemmeter, through these reports and through her own observations in the course of nearly 20 visits to the DeShaney home, id., at 104, compiled growing evidence that Joshua was being abused, that information stayed within the Department - chronicled by the social worker in detail that seems almost eerie in light of her failure to act upon it. (As to the extent of the social worker's involvement in, and knowledge of, Joshua's predicament, her reaction to the news of Joshua's last and most devastating injuries is illuminating: "`I just knew the phone would ring some day and Joshua would be dead.'" 812 F.2d 298, 300 (CA7 1987).)

Even more telling than these examples is the Department's control over the decision whether to take steps to protect a particular child from suspected abuse.   While many different people contributed information and advice to this decision, it was up to the people at DSS to make the ultimate decision (subject to the approval of the local government's corporation counsel) whether to disturb the family's current arrangements. App. 41, 58.   When Joshua first appeared at a local hospital with injuries signaling physical abuse, for example, it was DSS that made the decision to take him into temporary custody for the purpose of studying his situation - and it was DSS, acting in conjunction with the corporation counsel, that returned him to his father. Ante, at 192. Unfortunately for Joshua DeShaney, the buck effectively stopped with the Department.

In these circumstances, a private citizen, or even a person working in a government agency other than DSS, would doubtless feel that her job was done as soon as she had reported [489 U.S. 189, 210]   her suspicions of child abuse to DSS.   Through its child-welfare program, in other words, the State of Wisconsin has relieved ordinary citizens and governmental bodies other than the Department of any sense of obligation to do anything more than report their suspicions of child abuse to DSS.   If DSS ignores or dismisses these suspicions, no one will step in to fill the gap.   Wisconsin's child-protection program thus effectively confined Joshua DeShaney within the walls of Randy DeShaney's violent home until such time as DSS took action to remove him.   Conceivably, then, children like Joshua are made worse off by the existence of this program when the persons and entities charged with carrying it out fail to do their jobs.

It simply belies reality, therefore, to contend that the State "stood by and did nothing" with respect to Joshua. Ante, at 203.   Through its child-protection program, the State actively intervened in Joshua's life and, by virtue of this intervention, acquired ever more certain knowledge that Joshua was in grave danger.   These circumstances, in my view, plant this case solidly within the tradition of cases like Youngberg and Estelle.

It will be meager comfort to Joshua and his mother to know that, if the State had "selectively den[ied] its protective services" to them because they were "disfavored minorities," ante, at 197, n. 3, their 1983 suit might have stood on sturdier ground.   Because of the posture of this case, we do not know why respondents did not take steps to protect Joshua; the Court, however, tells us that their reason is irrelevant so long as their inaction was not the product of invidious discrimination.   Presumably, then, if respondents decided not to help Joshua because his name began with a "J," or because he was born in the spring, or because they did not care enough about him even to formulate an intent to discriminate against him based on an arbitrary reason, respondents would not be liable to the DeShaneys because they were not the ones who dealt the blows that destroyed Joshua's life. [489 U.S. 189, 211]

I do not suggest that such irrationality was at work in this case; I emphasize only that we do not know whether or not it was.   I would allow Joshua and his mother the opportunity to show that respondents' failure to help him arose, not out of the sound exercise of professional judgment that we recognized in Youngberg as sufficient to preclude liability, see 457 U.S., at 322 -323, but from the kind of arbitrariness that we have in the past condemned. See, e. g., Daniels v. Williams, 474 U.S. 327, 331 (1986) (purpose of Due Process Clause was "to secure the individual from the arbitrary exercise of the powers of government" (citations omitted)); West Coast Hotel Co. v. Parrish, 300 U.S. 379, 399 (1937) (to sustain state action, the Court need only decide that it is not "arbitrary or capricious"); Euclid v. Ambler Realty Co., 272 U.S. 365, 389 (1926) (state action invalid where it "passes the bounds of reason and assumes the character of a merely arbitrary fiat," quoting Purity Extract & Tonic Co. v. Lynch, 226 U.S. 192, 204 (1912)).

Youngberg's deference to a decisionmaker's professional judgment ensures that once a caseworker has decided, on the basis of her professional training and experience, that one course of protection is preferable for a given child, or even that no special protection is required, she will not be found liable for the harm that follows. (In this way, Youngberg's vision of substantive due process serves a purpose similar to that served by adherence to procedural norms, namely, requiring that a state actor stop and think before she acts in a way that may lead to a loss of liberty.)   Moreover, that the Due Process Clause is not violated by merely negligent conduct, see Daniels, supra, and Davidson v. Cannon, 474 U.S. 344 (1986), means that a social worker who simply makes a mistake of judgment under what are admittedly complex and difficult conditions will not find herself liable in damages under 1983.

As the Court today reminds us, "the Due Process Clause of the Fourteenth Amendment was intended to prevent government [489 U.S. 189, 212]   `from abusing [its] power, or employing it as an instrument of oppression.'" Ante, at 196, quoting Davidson, supra, U.S., at 348. My disagreement with the Court arises from its failure to see that inaction can be every bit as abusive of power as action, that oppression can result when a State undertakes a vital duty and then ignores it.   Today's opinion construes the Due Process Clause to permit a State to displace private sources of protection and then, at the critical moment, to shrug its shoulders and turn away from the harm that it has promised to try to prevent.   Because I cannot agree that our Constitution is indifferent to such indifference, I respectfully dissent.

JUSTICE BLACKMUN, dissenting.

Today, the Court purports to be the dispassionate oracle of the law, unmoved by "natural sympathy." Ante, at 202.   But, in this pretense, the Court itself retreats into a sterile formalism which prevents it from recognizing either the facts of the case before it or the legal norms that should apply to those facts. As JUSTICE BRENNAN demonstrates, the facts here involve not mere passivity, but active state intervention in the life of Joshua DeShaney - intervention that triggered a fundamental duty to aid the boy once the State learned of the severe danger to which he was exposed.

The Court fails to recognize this duty because it attempts to draw a sharp and rigid line between action and inaction.   But such formalistic reasoning has no place in the interpretation of the broad and stirring Clauses of the Fourteenth Amendment. Indeed, I submit that these Clauses were designed, at least in part, to undo the formalistic legal reasoning that infected antebellum jurisprudence, which the late Professor Robert Cover analyzed so effectively in his significant work entitled Justice Accused (1975).

Like the antebellum judges who denied relief to fugitive slaves, see id., at 119-121, the Court today claims that its decision, however harsh, is compelled by existing legal doctrine.   On the contrary, the question presented by this case [489 U.S. 189, 213]   is an open one, and our Fourteenth Amendment precedents may be read more broadly or narrowly depending upon how one chooses to read them.   Faced with the choice, I would adopt a "sympathetic" reading, one which comports with dictates of fundamental justice and recognizes that compassion need not be exiled from the province of judging. Cf. A. Stone, Law, Psychiatry, and Morality 262 (1984) ("We will make mistakes if we go forward, but doing nothing can be the worst mistake.   What is required of us is moral ambition. Until our composite sketch becomes a true portrait of humanity we must live with our uncertainty; we will grope, we will struggle, and our compassion may be our only guide and comfort").

Poor Joshua!   Victim of repeated attacks by an irresponsible, bullying, cowardly, and intemperate father, and abandoned by respondents who placed him in a dangerous predicament and who knew or learned what was going on, and yet did essentially nothing except, as the Court revealingly observes, ante, at 193, "dutifully recorded these incidents in [their] files."   It is a sad commentary upon American life, and constitutional principles - so full of late of patriotic fervor and proud proclamations about "liberty and justice for all" - that this child, Joshua DeShaney, now is assigned to live out the remainder of his life profoundly retarded. Joshua and his mother, as petitioners here, deserve - but now are denied by this Court - the opportunity to have the facts of their case considered in the light of the constitutional protection that 42 U.S.C. 1983 is meant to provide. [489 U.S. 189, 214]

~~~~~~~~~~~~~

United States Court of Appeals for the Ninth Circuit

Balistreri v. Pacifica Police Department, 901 F.2d 696 (9th Cir.)

March 16, 1988

Susan Jackson Balliet, Legal Aid Soc. of San Mateo County, Redwood City, Cal., for plaintiff-appellant.

Todd A. Roberts, Ropers, Majeski, Kohn, Bentley, Wagner & Kane, Redwood City, Cal., for defendants-appellees.

Appeal from the United States District Court for the Northern District of California.

Before SCHROEDER and FLETCHER, Circuit Judges, and WATERS,* District Judge.

FLETCHER, Circuit Judge:

Jena Balistreri appeals, pro se, the district court's dismissal of her 42 U.S.C. Sec. 1983 complaint for failure to state a claim. The district court's decision is published at 656 F.Supp. 423. We affirm in part, reverse in part, and remand.

FACTS

Balistreri's complaint, prepared by an attorney, alleges the following facts.

On February 13, 1982, Balistreri was severely beaten by her husband.   The Pacifica police officers who responded to her call for assistance removed the husband from the home, but refused to place him under arrest, and were "rude, insulting and unsympathetic" toward Mrs. Balistreri.   One of the officers stated that Mrs. Balistreri deserved the beating.   Although Balistreri was injured seriously enough to require treatment for injuries to her nose, mouth, eyes, teeth and abdomen, the officers did not offer Balistreri medical assistance.

Sometime after the incident, an unidentified Pacifica police officer pressured Balistreri into agreeing not to press charges against her husband.

Throughout 1982, Balistreri continually complained to the Pacifica police of instances of vandalism and of receiving hundreds of harassing phone calls.   She named her husband, from whom she is now divorced, as the suspected culprit.

In November 1982, Balistreri obtained a restraining order which enjoined her former husband from "harassing, annoying or having any contact with her."1   Subsequent to the service of this order, Balistreri's former husband crashed his car into her garage, and Balistreri immediately called the police, who arrived at the scene but stated that they would not arrest the husband or investigate the incident.   During the remainder of 1982, Balistreri reported additional acts of phone harassment and vandalism, but the police "received her complaints with ridicule," denied that any restraining order was on file, ignored her requests for protection and investigation, and on one occasion hung up on her when she called to report an instance of vandalism.

On March 27, 1983, a firebomb was thrown through the window of Balistreri's house, causing fire damage and emotional anguish to Balistreri.   The police took 45 minutes to respond to Balistreri's "911" call.   Although police asked Balistreri's husband a few questions, they determined he was not responsible for the act; Balistreri complained that the investigation was inadequate, to which the police responded that she should either move elsewhere or hire a private investigator.

Throughout 1983-85, Balistreri was continually subjected to telephone harassment and vandalism.   Balistreri contacted Pacific Bell to "trace" the calls.   Pacific Bell reported that some of these calls were traced to the former husband's family, but the police refused to act on this information.

Balistreri, represented by counsel, filed a complaint alleging that these acts violated her constitutional rights and caused her to suffer physical injuries, a bleeding ulcer, and emotional distress.   The complaint asserted that the defendant police officers had deprived Balistreri of due process and equal protection of the law, and violated her rights to be free of excessive use of force and unreasonable searches and seizures by police.   The district court dismissed the complaint with prejudice.   After the dismissal, Balistreri ceased to be represented by counsel and was granted leave to proceed in forma pauperis.

DISCUSSION

I.

Defective Appellate Brief

Defendants argue that Balistreri has waived her appeal by failing to follow the formal requirements for brief-writing, as set forth in Fed.R.App.P. 28 and Ninth Circuit Rule 13.   This argument is completely meritless.

The Fifth Circuit has squarely addressed and rejected the argument raised by defendants, that a pro se appeal should be dismissed for failure to comply with the formal requirements of appellate briefs under Fed.R.App.P. 28. Abdul-Alim Amin v. Universal Life Ins. Co., 706 F.2d 638, 640 n. 1 (5th Cir.1983); see also McCottrel v. E.E.O.C., 726 F.2d 350, 351 (7th Cir.1984) (pro se litigants held to lower standard of brief-writing than attorneys).   Of the two cases cited by defendants in which issues were not considered due to appellate procedural defects, neither involved a pro se appellant.

This court recognizes that it has a duty to ensure that pro se litigants do not lose their right to a hearing on the merits of their claim due to ignorance of technical procedural requirements. Borzeka v. Heckler, 739 F.2d 444, 447 n. 2 (9th Cir.1984) (defective service of complaint by pro se litigant does not warrant dismissal); Garaux v. Pulley, 739 F.2d 437, 439 (9th Cir.1984).   Thus, for example, pro se pleadings are liberally construed, particularly where civil rights claims are involved. Christensen v. C.I.R., 786 F.2d 1382, 1384-85 (9th Cir.1986); Bretz v. Kelman, 773 F.2d 1026, 1027 n. 1 (9th Cir.1985) (en banc).   Defendants suggest no reason to treat pro se appellate briefs any less liberally than pro se pleadings.

Construing Balistreri's brief liberally, it is obvious that she is appealing the district court's dismissal of her Sec. 1983 complaint for failure to state a claim.   Indeed, Balistreri's brief identifies and challenges the specific legal ground of the district court's ruling: "I wish to establish that there was a very special relationship between plaintiff and the police department ..." Appellant's Opening Brief at 3.   The brief also refers to "discrimination" against Balistreri. Id. at 1.   Defendants' contention that "Balistreri's opening brief fails to set forth any specific error by the district court" must be rejected.2

II.

Whether Balistreri has Stated a Sec. 1983 Claim

To sustain an action under Sec. 1983, a plaintiff must show (1) that the conduct complained of was committed by a person acting under color of state law; and (2) that the conduct deprived the plaintiff of a constitutional right. R inker v. Napa County, 831 F.2d 829, 831 (9th Cir.1987) (citing Parratt v. Taylor, 451 U.S. 527, 535, 101 S.Ct. 1908, 1912, 68 L.Ed.2d 420 (1981)). We review de novo the district court's dismissal of Balistreri's complaint under Rule 12(b)(6). Shah v. County of Los Angeles, 797 F.2d 743, 745 (9th Cir.1986). A complaint should not be dismissed under Rule 12(b)(6) "unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 101-02, 2 L.Ed.2d 80 (1957). Dismissal can be based on the lack of a cognizable legal theory or the absence of sufficient facts alleged under a cognizable legal theory. Robertson v. Dean Witter Reynolds, Inc., 749 F.2d 530, 533-34 (9th Cir.1984). On a motion to dismiss, the court accepts the facts alleged in the complaint as true. Shah, 797 F.2d at 745. Balistreri claims that defendants breached a duty to protect her imposed by the due process and equal protection clauses of the Fourteenth Amendment, and further claims a violation by defendants of her right to be free from excessive use of force and unlawful searches and seizures by police.

A.

Due Process

The heart of Balistreri's due process claim is that the Pacifica police failed to take steps to respond to the continued threats, harassment and violence towards Balistreri by her estranged husband.   There is, in general, no constitutional duty of state officials to protect members of the public at large from crime. See Martinez v. California, 444 U.S. 277, 284-85, 100 S.Ct. 553, 558-59, 62 L.Ed.2d 481 (1980); Ketchum, 811 F.2d 1243, 1247 (9th Cir.1987); Bowers v. DeVito, 686 F.2d 616, 618 (7th Cir.1982).   However, such a duty may arise by virtue of a "special relationship" between state officials and a particular member of the public. Ketchum, 811 F.2d at 1247; Escamilla v. Santa Ana, 796 F.2d 266, 269 (9th Cir.1986).   Several courts have held that, to determine whether a "special relationship" exists, a court may look to a number of factors, including (1) whether the state created or assumed a custodial relationship toward the plaintiff; (2) whether the state affirmatively placed the plaintiff in a position of danger; (3) whether the state was aware of a specific risk of harm to the plaintiff; or (4) whether the state affirmatively committed itself to the protection of the plaintiff. See Ketchum, 811 F.2d at 1247; Escamilla, 796 F.2d at 269-70; Jensen v. Conrad, 747 F.2d 185, 194 (4th Cir.1984).

As the district court noted, Balistreri alleged neither that the state had created or assumed a custodial relationship over her, nor that the state actors had somehow affirmatively placed her in danger.   There were no allegations that the defendants had done anything to "ratify, condone or in any way instigate" the actions of Balistreri's ex-husband. 656 F.Supp. at 425. However, Balistreri did allege that state actors knew of her plight and affirmatively committed to protect her.   Specifically, she alleged that the state committed to protect her when it issued her a restraining order.

In the recent case of DeShaney v. Winnebago County of Department of Social Services, 489 U.S. 189, 109 S.Ct. 998, 103 L.Ed.2d 249 (1989), however, the Supreme Court limited the circumstances giving rise to "a special relationship."   Joshua DeShaney fell into a life-threatening coma after he was severely beaten by his father.   Prior to this beating, the social services agency recorded multiple incidents indicating that someone in the DeShaney household was physically abusing Joshua and temporarily placed Joshua in the custody of the juvenile court. In the course of explaining its holding that Joshua DeShaney and his mother failed to make out an actionable Sec. 1983 claim, the Court explained that its previous decisions recognizing "affirmative [constitutional] duties of care and protection.... stand only for the proposition that when the State takes a person into its custody and hold him there against his will, the Constitution imposes upon it a corresponding duty to assume some responsibility for his safety and general wellbeing....   The affirmative duty to protect arises not from the State's knowledge of the individual's predicament or from its expressions of intent to help him, but from the limitation which it has imposed on his freedom to act on his own behalf." Id. 109 S.Ct. at 1005-06.   We conclude that the state's knowledge of DeShaney's plight and its expressions of intent to help him were no greater than its knowledge of Balistreri's plight and its expressions of intent to help her. See id. at 1010-11 (Brennan, J., dissenting) ("Wisconsin law invites--indeed, directs--citizens and other governmental entities to depend on local departments of social services such as respondent to protect children from abuse....   Through its child-protection program, the State actively intervened in Joshua's life and, by virtue of this intervention, acquired ever more certain knowledge that Joshua was in grave danger."). DeShaney is therefore controlling in Balistreri's case.   Accordingly, we hold that Balistreri failed to allege "a special relationship" and affirm the district court's dismissal of Balistreri's due process claim.

B.

Equal Protection

Balistreri's complaint specifically alleges that Balistreri was deprived of her right to equal protection of the laws.   In her response to defendants' motion to dismiss, Balistreri specifically asked for leave to amend her complaint if the court found that she had not recited sufficient facts to state a cause of action.   Opposition to Motion to Dismiss 8.   The Court refused her request and instead rejected her equal protection claim because "plaintiff has not alleged defendants discriminated against her as a class ..." Order 7.   The court dismissed her complaint with prejudice.

Balistreri's equal protection claim is not as clearly and succinctly pleaded as one might wish. There may be reasonable disagreement as to whether sufficient facts are alleged in the complaint to give notice to defendants that the basis for plaintiff's alleged problems lies in her gender and marital status.   What is clear, however, is that the district court erred in refusing to grant her request to amend her complaint.   Balistreri's request to amend her complaint invokes Fed.R.Civ.P. 15(a), which requires that even where amendment is not a matter of right, leave to amend shall "be freely granted when justice so requires."   Under well established Ninth circuit precedent construing Rule 15(a), the court abused its discretion in not granting her leave to amend.

The fact that Balistreri did not present her request to amend her complaint in a separate formal motion is not a bar.   As we held in Scott v. Eversole Mortuary, 522 F.2d 1110 (9th Cir.1975), Rule 15(a) applies where plaintiffs "expressly requested" to amend even though their request "was not contained in a properly captioned motion paper." Id. 1116 n. 8.   See also Edwards v. Occidental Chemical Corp., 892 F.2d 1442, 1445 n. 2 (9th Cir.1990) (request for leave to amend should have been granted even though request appeared in opposition to motion for summary judgment and was not formally tendered).

The standard for granting leave to amend is generous.   In Scott v. Eversole Mortuary, 522 F.2d at 1116 we reversed the district court's dismissal of plaintiff's count insofar as it denied leave to amend because we could "conceive of facts" that would render plaintiff's claim viable and could "discern from the record no reason why leave to amend should be denied."   Similarly, in Breier v. Northern California Bowling Proprietors' Ass'n, 316 F.2d 787, 789-90 (9th Cir.1963) we held that leave to amend should be granted if underlying facts provide proper grounds for relief or if the complaint can be saved by amendment. " [L]eave to amend should be granted 'if it appears at all possible that the plaintiff can correct the defect.' " Id. at 790 (quoting 3 Moore, Federal Practice, Sec. 15.10 at 838 (2d ed. 1948)).

Balistreri easily meets this standard. Not only can we "conceive of facts" that would constitute an equal protection cause of action, Balistreri's Complaint and Opposition to Motion to Dismiss allege facts which, if true, may be a proper subject of relief. Hall v. City of Santa Barbara, 833 F.2d 1270, 1274 n. 6 (9th Cir.) (although finding the plaintiff's complaint was "somewhat elliptical, the opposition to the motion fairly advised defendant and the district court as to the nature of plaintiffs' claim.   Under such circumstances, leave to amend the complaint, rather than dismissal is the appropriate course of action. (citations omitted).   We believe the district court abused its discretion by dismissing rather than giving plaintiffs an opportunity to amend the complaint."); cert. denied, 485 U.S. 940, 108 S.Ct. 1120, 99 L.Ed.2d 281 (1986).   Balistreri's complaint alleges that an officer responding to her 1982 assault complaint allegedly stated that he "did not blame plaintiff's husband for hitting her, because of the way she was 'carrying on.' " Complaint at 3.   Such remarks strongly suggest an intention to treat domestic abuse cases less seriously than other assaults, as well as an animus against abused women. Cf. Usher v. City of Los Angeles, 828 F.2d 556, 562 (9th Cir.1987) (derogatory references by police calling plaintiff "nigger" and "coon" demonstrate racial animus to support claim of malicious prosecution violating equal protection).   Plaintiff's response to the motion to dismiss made it clear that the equal protection claim was based upon sex and marital status.   The response stated that plaintiff "has alleged facts indicating that as a woman, she was discriminated against when seeking police protection from a known danger, her former husband."   Opposition to Motion to Dismiss 6.   The response cited as support for its legal theory Thurman v. City of Torrington, 595 F.Supp. 1521 (D.Conn.1984), one of several district court decisions which have held that police failure to respond to complaints lodged by women in domestic violence cases may violate equal protection.

Accordingly, we find that the district court abused its discretion in refusing Balistreri's request to amend her complaint and instead dismissing her equal protection claim with prejudice.

C.

Excessive Force, Search and Seizure

Balistreri's complaint alleges no facts at all suggesting that defendants subjected her to any search, seizure, or use of force, lawful or otherwise. There is no allegation tending to show that Balistreri's husband was a state agent, or that his acts were ratified, condoned or instigated by the state. Accordingly, dismissal of these claims was proper.

CONCLUSION

We AFFIRM the district court's dismissal of plaintiff's search, seizure and use of force claims and due process claim, but REVERSE the dismissal with prejudice of plaintiff's equal protection claim, and remand with instructions to the district court to permit the plaintiff to amend the complaint.

LAUGHLIN E. WATERS, District Judge, concurring in the result.

I withdraw my prior concurring and dissenting opinion. I concur only in the result of the Second Amended Opinion.

*    Hon. Laughlin E. Waters, Senior U.S. District Judge for the Central District of California, sitting by designation

1.    The restraining order was not attached to the complaint, and does not appear in the record

2.    Defendants complain of Balistreri's failure to serve defendants with various papers, but this is not grounds for dismissal of the appeal. See Borzeka v. Heckler, 739 F.2d at 447 n. 2

~~~~~~~~~~~~~~

MARTINEZ v. CALIFORNIA, 444 U.S. 277 (1980)

MARTINEZ ET AL. v. CALIFORNIA ET AL.

APPEAL FROM THE COURT OF APPEAL OF CALIFORNIA, FOURTH APPELLATE DISTRICT.

No. 78-1268.

Argued November 5, 1979.
Decided January 15, 1980.

Appellants' decedent, a 15-year-old girl, was murdered by a parolee five months after he was released from prison despite his history as a sex offender.   Appellants brought an action in a California court under state law and 42 U.S.C. 1983, claiming that appellee state officials, by their action in releasing the parolee, subjected the decedent to a deprivation of her life without due process of law and were therefore liable in damages for the harm caused by the parolee. The trial court sustained a demurrer to the complaint.   The California Court of Appeal affirmed, holding that a California statute granting public employees absolute immunity from liability for any injury resulting from parole-release determinations provided appellees with a complete defense to appellants' state-law claims, and that appellees enjoyed quasi-judicial immunity from liability under 42 U.S.C. 1983.

Held:

      1. The California immunity statute is not unconstitutional when applied to defeat a tort claim arising under state law. Pp. 280-283.

      (a) The statute, which merely provides a defense to potential state tort-law liability, did not deprive appellants' decedent of her life without due process of law because it condoned a parole decision that led indirectly to her death.   A legislative decision that has an incremental impact on the probability that death will result in any given situation cannot be characterized as state action depriving a person of life just because it may set in motion a chain of events that ultimately leads to the random death of an innocent bystander. P. 281.

      (b) Even if the statute can be characterized as a deprivation of property, the State's interest in fashioning its own rules of tort law is paramount to any discernible federal interest, except perhaps an interest in protecting the individual citizen from wholly arbitrary or irrational state action.   The statute is not irrational because the California Legislature could reasonably conclude that judicial review of parole decisions "would inevitably inhibit the exercise of discretion" and that this inhibiting effect could impair the State's ability to implement a parole program designed to promote rehabilitation of inmates [444 U.S. 277, 278]   as well as security within prisons by holding out a promise of potential rewards. Pp. 281-283.

      2. Appellants did not allege a claim for relief under federal law. Pp. 283-285.

      (a) The Fourteenth Amendment protected appellants' decedent only from deprivation by the State of life without due process of law, and although the decision to release the parolee from prison was action by the State, the parolee's action five months later cannot be fairly characterized as state action. Pp. 284-285.

      (b) Regardless of whether, as a matter of state tort law, the parole board either had a "duty" to avoid harm to the parolee's victim or proximately caused her death, appellees did not "deprive" appellants' decedent of life within the meaning of the Fourteenth Amendment. P. 285.

      (c) Under the particular circumstances where the parolee was in no sense an agent of the parole board, and the board was not aware that appellants' decedent, as distinguished from the public at large, faced any special danger, appellants' decedent's death was too remote a consequence of appellees' action to hold them responsible under 1983. P. 285.

85 Cal. App. 3d 430, 149 Cal. Rptr. 519, affirmed.

STEVENS, J., delivered the opinion for a unanimous Court.

Donald McGrath II argued the cause for appellants. With him on the brief was Walter P. Christensen.

Jeffrey T. Miller, Deputy Attorney General of California, argued the cause for appellees. With him on the brief were George Deukmejian, Attorney General, and Robert L. Bergman, Assistant Attorney General. *

[ Footnote * ] Briefs of amici curiae urging reversal were filed by Frank Carrington for Americans for Effective Law Enforcement, Inc.; and by Ronald A. Zumbrun and John H. Findley for the Pacific Legal Foundation.

Briefs of amici curiae urging affirmance were filed by Solicitor General McCree, Acting Assistant Attorney General Daniel, Robert E. Kopp, and Barbara L. Herwig for the United States; by John J. Degnan, Attorney General, and Erminie L. Conley, Assistant Attorney General, for the State of New Jersey; and by William J. Brown, Attorney General, and Simon B. Karas, George Stricker, Jr., and Dennis L. Sipe, Assistant Attorneys General, for the State of Ohio. [444 U.S. 277, 279]

MR. JUSTICE STEVENS delivered the opinion of the Court.

The two federal questions that appellants ask us to decide are (1) whether the Fourteenth Amendment invalidates a California statute granting absolute immunity to public employees who make parole-release determinations, and (2) whether such officials are absolutely immune from liability in an action brought under the federal Civil Rights Act of 1871, 42 U.S.C. 1983. 1 We agree with the California Court of Appeal that the state statute is valid when applied to claims arising under state law, and we conclude that appellants have not alleged a claim for relief under federal law.

The case arises out of the murder of a 15-year-old girl by a parolee.   Her survivors brought this action in a California court claiming that the state officials responsible for the parole-release decision are liable in damages for the harm caused by the parolee.

The complaint alleged that the parolee, one Thomas, was convicted of attempted rape in December 1969.   He was first committed to a state mental hospital as a "Mentally Disordered Sex Offender not amenable to treatment" and thereafter sentenced to a term of imprisonment of 1 to 20 years, with a recommendation that he not be paroled.   Nevertheless, five years later, appellees decided to parole Thomas to the care of his mother.   They were fully informed about his history, his propensities, and the likelihood that he would commit another violent crime. Moreover, in making their release determination they failed to observe certain "requisite formalities."   Five months after his release Thomas tortured [444 U.S. 277, 280]   and killed appellants' decedent.   We assume, as the complaint alleges, that appellees knew, or should have known, that the release of Thomas created a clear and present danger that such an incident would occur.   Their action is characterized not only as negligent, but also as reckless, willful, wanton and malicious. 2   Appellants prayed for actual and punitive damages of $2 million.

The trial judge sustained a demurrer to the complaint and his order was upheld on appeal. 85 Cal. App. 3d 430, 149 Cal. Rptr. 519 (1978).   After the California Supreme Court denied appellants' petition for a hearing, we noted probable jurisdiction. 441 U.S. 960 .

Section 845.8 (a) of the Cal. Gov't Code Ann. (West Supp. 1979) provides:

          "Neither a public entity nor a public employee is liable for:

          (a) Any injury resulting from determining whether to parole or release a prisoner or from determining the terms and conditions of his parole or release or from determining whether to revoke his parole or release."

The California courts held that this statute provided appellees with a complete defense to appellants' state-law claims. 3   They considered and rejected the contention that the immunity [444 U.S. 277, 281]   statute as so construed violates the Due Process Clause of the Fourteenth Amendment to the Federal Constitution. 4

Like the California courts, we cannot accept the contention that this statute deprived Thomas' victim of her life without due process of law because it condoned a parole decision that led indirectly to her death.   The statute neither authorized nor immunized the deliberate killing of any human being.   It is not the equivalent of a death penalty statute which expressly authorizes state agents to take a person's life after prescribed procedures have been observed.   This statute merely provides a defense to potential state tort-law liability.   At most, the availability of such a defense may have encouraged members of the parole board to take somewhat greater risks of recidivism in exercising their authority to release prisoners than they otherwise might.   But the basic risk that repeat offenses may occur is always present in any parole system.   A legislative decision that has an incremental impact on the probability that death will result in any given situation - such as setting the speed limit at 55-miles-per-hour instead of 45 - cannot be characterized as state action depriving a person of life just because it may set in motion a chain of events that ultimately leads to the random death of an innocent bystander.

Nor can the statute be characterized as an invalid deprivation of property.   Arguably, the cause of action for wrongful death that the State has created is a species of "property" [444 U.S. 277, 282]   protected by the Due Process Clause.   On that hypothesis, the immunity statute could be viewed as depriving the plaintiffs of that property interest insofar as they seek to assert a claim against parole officials. 5   But even if one characterizes the immunity defense as a statutory deprivation, it would remain true that the State's interest in fashioning its own rules of tort law is paramount to any discernible federal interest, except perhaps an interest in protecting the individual citizen from state action that is wholly arbitrary or irrational.

We have no difficulty in accepting California's conclusion that there "is a rational relationship between the state's purposes and the statute." 6   In fashioning state policy in a "practical [444 U.S. 277, 283]   and troublesome area" like this, see McGinnis v. Royster, 410 U.S. 263, 270 , the California Legislature could reasonably conclude that judicial review of a parole officer's decisions "would inevitably inhibit the exercise of discretion," United States ex rel. Miller v. Twomey, 479 F.2d 701, 721 (CA7 1973), cert. denied, 414 U.S. 1146 .   That inhibiting effect could impair the State's ability to implement a parole program designed to promote rehabilitation of inmates as well as security within prison walls by holding out a promise of potential rewards.   Whether one agrees or disagrees with California's decision to provide absolute immunity for parole officials in a case of this kind, one cannot deny that it rationally furthers a policy that reasonable lawmakers may favor.   As federal judges, we have no authority to pass judgment on the wisdom of the underlying policy determination.   We therefore find no merit in the contention that the State's immunity statute is unconstitutional when applied to defeat a tort claim arising under state law.

We turn then to appellants' 1983 claim that appellees, by their action in releasing Thomas, subjected appellants' decedent to a deprivation of her life without due process of law. 7   [444 U.S. 277, 284]     It is clear that the California immunity statute does not control this claim even though the federal cause of action is being asserted in the state courts. 8   We also conclude that it is not necessary for us to decide any question concerning the immunity of state parole officials as a matter of federal law because, as we recently held in Baker v. McCollan, 443 U.S. 137 , "[t]he first inquiry in any 1983 suit . . . is whether the plaintiff has been deprived of a right `secured by the Constitution and laws'" of the United States. 9   The answer to that inquiry disposes of this case.

Appellants contend that the decedent's right to life is protected by the Fourteenth Amendment to the Constitution.   But the Fourteenth Amendment protected her only from deprivation by the "State . . . of life . . . without due process of law."   Although the decision to release Thomas from prison [444 U.S. 277, 285]   was action by the State, the action of Thomas five months later cannot be fairly characterized as state action.   Regardless of whether, as a matter of state tort law, the parole board could be said either to have had a "duty" to avoid harm to his victim or to have proximately caused her death, see Grimm v. Arizona Bd. of Pardons and Paroles, 115 Ariz. 260, 564 P.2d 1227 (1977); Palsgraf v. Long Island R. Co., 248 N. Y. 339, 162 N. E. 99 (1928), we hold that, taking these particular allegations as true, appellees did not "deprive" appellants' decedent of life within the meaning of the Fourteenth Amendment.

Her life was taken by the parolee five months after his release. 10   He was in no sense an agent of the parole board. Cf. Scheuer v. Rhodes, 416 U.S. 232 .   Further, the parole board was not aware that appellants' decedent, as distinguished from the public at large, faced any special danger.   We need not and do not decide that a parole officer could never be deemed to "deprive" someone of life by action taken in connection with the release of a prisoner on parole. 11   But we do hold that at least under the particular circumstances of this parole decision, appellants' decedent's death is too remote a consequence of the parole officers' action to hold them responsible under the federal civil rights law.   Although a 1983 claim has been described as "a species of tort liability," Imbler v. Pachtman, 424 U.S. 409, 417 , it is perfectly clear that not every injury in which a state official has played some part is actionable under that statute.

The judgment is affirmed.

      So ordered.

Footnotes

[ Footnote 1 ] "Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress."

[ Footnote 2 ] Although the complaint refers to the failure to supervise Thomas after his release, a failure to warn females in the area of potential danger, and a failure to revoke the original parole decision, the litigation has focused entirely on the original decision.   The individual appellees are not alleged to have responsibility for postrelease supervision of Thomas.

[ Footnote 3 ] The dismissal of appellants' cause of action charging negligent failure to warn females in the area of danger was predicated on appellants' concession that there was no "continuing relationship between the state and the victim," 85 Cal. App. 3d 430, 435, 149 Cal. Rptr. 519, 523 (1978), a requirement of state law.

[ Footnote 4 ] ". . . No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws." U.S. Const., Amdt. 14, 1.

Although the question presented in the jurisdictional statement posits an Equal Protection Clause challenge to the statute, that point was not actually briefed in this Court.   It was also neither raised in nor treated by the courts below.   We therefore make no further reference to that challenge.

[ Footnote 5 ] It is arguable, however, that the immunity defense, like an element of the tort claim itself, is merely one aspect of the State's definition of that property interest.   Recently, in considering a lawyer's claim of immunity in a state malpractice action, we noted that

          "when state law creates a cause of action, the State is free to define the defenses to that claim, including the defense of immunity, unless, of course, the state rule is in conflict with federal law." Ferri v. Ackerman, ante, at 198.

[ Footnote 6 ] "Martinez says the statute, Government Code section 845.8, subdivision (a), is unconstitutional because it permits the deprivation of life, a fundamental right, without due process.   He suggests the statute, if it confers absolute immunity, encouraged the actions resulting in Mary Ellen's death and, thus, requires a compelling state interest.   However, the Legislature has broad powers to control governmental tort liability limited only by the rule it not act arbitrarily (Reed v. City & County of San Francisco, 237 Cal. App. 2d 23, 24 . . .).   The California Tort Claims Act as a whole (Gov. Code 810 et seq.) has been found constitutional (Datil v. City of Los Angeles, 263 Cal. App. 2d 655, 660-661 . . .).   The stated purpose of section 845.8, subdivision (a), is to allow correctional personnel to make determinations of release or parole unfettered by any fear of tort liability (Law Revision Com. com.).   To impose tort liability would have a chilling effect on the decision-making process, impede implementation of trial release programs and prolong incarceration unjustifiably for many prisoners.   There is a rational relationship between the state's purposes and the statute." 85 Cal. App. 3d, at 437, 149 Cal. Rptr., at 524.

The opinion of the California Court of Appeal does not expressly mention the Federal Constitution.   But it is clear from appellants' response to [444 U.S. 277, 283]   the demurrer that they were relying on "a federally protected right to life under the Constitution of the United States." Record 59.

[ Footnote 7 ] We note that the California courts accepted jurisdiction of this federal claim.   That exercise of jurisdiction appears to be consistent with the general rule that where

          "`an act of Congress gives a penalty to a party aggrieved, without specifying a remedy for its enforcement, there is no reason why it should not be enforced, if not provided otherwise by some act of Congress, by a proper action in a State court.'" Testa v. Katt, 330 U.S. 386, 391 , quoting Claflin v. Houseman, 93 U.S. 130, 137 .

See also Aldinger v. Howard, 427 U.S. 1, 36 , n. 17 (BRENNAN, J., dissenting); Grubb v. Public Utilities Comm'n, 281 U.S. 470, 476.   We have never considered, however, the question whether a State must entertain a claim under 1983.   We note that where the same type of claim, if arising under state law, would be enforced in the state courts, the state courts [444 U.S. 277, 284]   are generally not free to refuse enforcement of the federal claim. Testa v. Katt, supra, at 394.   But see Chamberlain v. Brown, 223 Tenn. 25, 442 S. W. 2d 248 (1969).

[ Footnote 8 ] "Conduct by persons acting under color of state law which is wrongful under 42 U.S.C. 1983 or 1985 (3) cannot be immunized by state law.   A construction of the federal statute which permitted a state immunity defense to have controlling effect would transmute a basic guarantee into an illusory promise; and the supremacy clause of the Constitution insures that the proper construction may be enforced. See McLaughlin v. Tilendis, 398 F.2d 287, 290 (7th Cir. 1968).   The immunity claim raises a question of federal law." Hampton v. Chicago, 484 F.2d 602, 607 (CA7 1973), cert. denied, 415 U.S. 917 .

[ Footnote 9 ] Baker v. McCollan, 443 U.S., at 140 .   Although there was a dissent in that case, the issue that divided the Court was, assuming the plaintiff had been deprived of constitutionally protected liberty, what process was due.   There was no disagreement with the majority's methodology of isolating the particular constitutional infringement complained of. Since we decide here that the State did not "deprive" appellants' decedent of a constitutionally protected right, we need not reach the question whether a lack of "due process" was adequately alleged by the reference to a failure to observe "requisite formalities."   It must be remembered that even if a state decision does deprive an individual of life or property, and even if that decision is erroneous, it does not necessarily follow that the decision violated that individual's right to due process.

[ Footnote 10 ] Compare the facts in Screws v. United States, 325 U.S. 91 , where local law enforcement officials themselves beat a citizen to death.

[ Footnote 11 ] We reserve the question of what immunity, if any, a state parole officer has in a 1983 action where a constitutional violation is made out by the allegations. [444 U.S. 277, 286]

~~~~~~~~~~~~~

SCREWS v. U.S., 325 U.S. 91 (1945)

SCREWS et al.
v.
UNITED STATES.
No. 42.

Argued Oct. 20, 1944.
Decided May 7, 1945.

[325 U.S. 91, 92]   Mr. James F. Kemp, of Atlanta, Ga., for petitioners.

Mr. Charles Fahy, Sol. Gen., of Washington, D.C., for respondent.

Mr. Justice DOUGLAS announced the judgment of the Court and delivered the following opinion, in which the CHIEF JUSTICE, Mr. Justice BLACK and Mr. Justice REED, concur.

This case involves a shocking and revolting episode in law enforcement. Petitioner Screws was sheriff of Baker County, Georgia. He enlisted the assistance of petitioner Jones, a policeman, and petitioner Kelley, a special deputy, in arresting Robert Hall, a citizen of the United States and of Georgia.   The arrest was made late at night at Hall's home on a warrant charging Hall with theft of a tire. Hall, a young negro about thirty years of age, was handcuffed and taken by car to the court house.   As Hall alighted from the car at the court house square, the three petitioners began beating him with their fists and with a solid-bar blackjack about eight inches long and weighing two pounds.   They claimed Hall had reached for a gun and had used insulting language as he alighted from the [325 U.S. 91, 93]   car.   But after Hall, still handcuffed, had been knocked to the ground they continued to beat him from fifteen to thirty minutes until he was unconscious.   Hall was then dragged feet first through the court house yard into the jail and thrown upon the floor dying.   An ambulance was called and Hall was removed to a hospital where he died within the hour and without regaining consciousness. There was evidence that Screws held a grudge against Hall and had threatened to 'get' him.

An indictment was returned against petitioners-one count charging a violation of 20 of the Criminal Code, 18 U.S.C. 52, 18 U.S.C.A. 52, and another charging a conspiracy to violate 20 contrary to 37 of the Criminal Code, 18 U.S.C. 88, 18 U.S.C.A. 88. Sec. 20 provides:

          'Whoever, under color of any law, statute, ordinance, regulation, or custom, will-fully subjects, or causes to be subjected, any inhabitant of any State, Territory, or District to the deprivation of any rights, privileges, or immunities secured or protected by the Constitution and laws of the United States, or to different punishments, pains, or penalties, on account of such inhabitant being an alien, or by reason of his color, or race, than are prescribed for the punishment of citizens, shall be fined not more than $1,000, or imprisoned not more than one year, or both.'

The indictment charged that petitioners, acting under color of the laws of Georgia, 'willfully' caused Hall to be deprived of 'rights, privileges, or immunities secured or protected' to him by the Fourteenth Amendment-the right not to be deprived of life without due process of law; the right to be tried, upon the charge on which he was arrested, by due process of law and if found guilty to be punished in accordance with the laws of Georgia; that is to say that petitioners 'unlawfully and wrong- fully did assault, strike and beat the said Robert Hall about the head with human fists and a blackjack causing injuries' to Hall 'which were the proximate and immediate cause [325 U.S. 91, 94]   of his death.'   A like charge was made in the conspiracy count.

The case was tried to a jury. 1   The court charged the jury that due process of law gave one charged with a crime the right to be tried by a jury and sentenced by a court.   On the question of intent it charged that ' ... if these defendants, without its being necessary to make the arrest effectual or necessary to their own personal protection, beat this man, assaulted him or killed him while he was under arrest, then they would be acting illegally under color of law, as stated by this statute, and would be depriving the prisoner of certain constitutional rights guaranteed to him by the Constitution of the United States and consented to by the State of Georgia.'

The jury returned a verdict of guilty and a fine and imprisonment on each count was imposed. The Circuit Court of Appeals affirmed the judgment of conviction, one judge dissenting. 5 Cir., 140 F.2d 662.   The case is here on a petition for a writ of certiorari which we granted because of the importance in the administration of th criminal laws of the questions presented. 322 U.S. 718 , 64 S.Ct. 946

We are met at the outset with the claim that 20 is unconstitutional, in so far as it makes criminal acts in violation of the due process clause of the Fourteenth Amendment.   The argument runs as follows: It is true that this Act as construed in United States v. Classic, 313 U.S. 299, 328 , 61 S.Ct. 1031, 1044, was upheld in its application to certain ballot box frauds committed by state officials.   But in that case the constitutional rights protected were the rights to vote [325 U.S. 91, 95]   specifically guaranteed by Art. I, 2 and 4 of the Constitution. Here there is no ascertainable standard of guilt.   There have been conflicting views in the Court as to the proper construction of the due process clause.   The majority have quite consistently construed it in broad general terms.   Thus it was stated in Twining v. New Jersey, 211 U.S. 78, 101 , 29 S.Ct. 14, 20, that due process requires that 'no change in ancient procedure can be made which disregards those fundamental principles, to be ascertained from time to time by judicial action, which have relation to process of law, and protect the citizen in his private right, and guard him against the arbitrary action of government.'   In Snyder v. Massachusetts, 291 U.S. 97, 105 , 54 S.Ct. 330, 332, 90 A.L.R. 575, it was said that due process prevents state action which 'offends some principle of justice so rooted in the traditions and conscience of our people as to be ranked as fundamental.'   The same standard was expressed in Palko v. Connecticut, 302 U.S. 319, 325 , 58 S.Ct. 149, 152, in terms of a 'scheme of ordered liberty.'   And the same idea was recently phrased as follows: 'The phrase formulates a concept less rigid and more fluid than those envisaged in other specific and particular provisions of the Bill of Rights.   Its application is less a matter of rule.   Asserted denial is to be tested by an appraisal of the totality of facts in a given case.   That which may, in one setting, constitute a denial of fundamental fairness, shocking to the universal sense of justice, may, in other circumstances, and in the light of other considerations, fall short of such denial.' Betts v. Brady, 316 U.S. 455, 462 , 62 S.Ct. 1252, 1256.

It is said that the Act must be read as if it contained those broad and fluid definitions of due process and that if it is so read it provides no ascertainable standard of guilt.   It is pointed out that in United States v. L. Cohen Grocery Co., 255 U.S. 81, 89 , 41 S.Ct. 298, 300, 14 A.L.R. 1045, an Act of Congress was struck down, the enforcement of which would have been 'the exact equivalent of an effort to carry out a statute [325 U.S. 91, 96]   which in terms merely penalized and punished all acts detrimental to the public interest when unjust and unreasonable in the estimation of the court and jury.'   In that case the act declared criminal was the making of 'any unjust or unreasonable rate or charge in handling or dealing in or with any necessaries.' 255 U.S. at page 86, 41 S.Ct. at page 299, 14 A.L.R. 1045.   The Act contained no definition of an 'unjust or unreasonable rate' nor did it refer to any source where the measure of 'unjust or unreasonable' could be ascertained.   In the instant case the decisions of the courts are, to be sure, a source of reference for ascertaining the specific content of the concept of due process. But even so the Act would incorporate by reference a large body of changing and uncertain law. That law is not always reducible to specific rules, is expressible only in general terms, and turns many times on the facts of a particular case.   Accordingly, it is argued that such a body of legal principles lacks the basic specificity necessary for criminal statutes under our system of government.   Congress did not define what it desired to punish but referred the citizen to a comprehensive law library in order to ascertain what acts were prohibited.   To enforce such a statute would be like sanctioning the practice of Caligula who 'published the law, but it was written in a very small hand, and posted up in a corner, so that no one could make a copy of it.' Suetonius, Lives of the Twelve Caesars, p. 278.

The serious character of that challenge to the constitutionality of the Act is emphasized if the customary standard of guilt for statutory crimes is taken.   As we shall see specific intent is at times required. Holmes, The Common Law, p. 66 et seq.   But the general rule was stated in Ellis v. United States, 206 U.S. 246, 257 , 27 S.Ct. 600, 602, 11 Ann.Cas. 589, as follows: 'If a man intentionally adopts certain conduct in certain circumstances known to him, and that conduct is forbidden by the law under those circumstances, he intentionally breaks the law in the only sense in which the law ever considers intent.'   And see Horning v. District of [325 U.S. 91, 97]   Columbia, 254 U.S. 135, 137 , 41 S.Ct. 53, 54; Nash v. United States, 229 U.S. 373, 377 , 33 S.Ct. 780, 781.   Under that test a local law enforcement officer violates 20 and commits a federal offense for which he can be sent to the penitentiary if he does an act which some court later holds deprives a person of due process of law.   And he is a criminal though his motive was pure and though his purpose was unrelated to the disregard of any constitutional guarantee.   The treacherous ground on which state officials - police, prosecutors, legislators, and judges - would walk is indicated by the character and closeness of decisions of this Court interpreting the due process clause of the Fourteenth Amendment.   A confession obtained by too long questioning (Ashcraft v. Tennessee, 322 U.S. 143 , 64 S.Ct. 921); the enforcement of an ordinance requiring a license for the distribution of religious literature (Murdock v. Pennsylvania, 319 U.S. 105 , 63 S.Ct. 870, 146 A.L.R. 81); the denial of the assistance of counsel in certain types of cases (Cf. Powell v. Alabama, 287 U.S. 45 , 53 S.Ct. 55, 84 A.L.R. 527, with Betts v. Brady, supra); the enforcement of certain types of anti-picketing statutes (Thornhill v. Alabama, 310 U.S. 88 , 60 S.Ct. 736); the enforcement of state price control laws (Olsen v. Nebraska, 313 U.S. 236 , 61 S.Ct. 862, 133 A. L.R. 1500); the requirement that public school children salute the flag ( West Virginia State Board of Education v. Barnette, 319 U.S. 624 , 63 S.Ct. 1178, 147 A.L.R. 674)-these are illustrative of the kind of state action2 which might or might not be caught in the broad reaches of 20 dependent on the prevailing view of the Court as constituted when the case arose.   Those who enforced local law today might not know for many months (and meanwhile could not find out) whether what they did deprived some one of due process of law.   The enforcement of a criminal statute so construed would indeed cast [325 U.S. 91, 98]   law enforcement agencies loose at their own risk on a vast uncharted sea.

If such a construction is not necessary, it should be avoided.   This Court has consistently favored that interpretation of legislation which supports its constitutionality.   Ashwander v. Tennessee Valley Authority, 297 U.S. 288, 348 , 56 S.Ct. 466, 483; National Labor Relations Board v. Jones & Laughlin Steel Corp., 301 U.S. 1, 30 , 57 S.Ct. 615, 621, 108 A.L.R. 1352; Anniston Mfg. Co. v. Davis, 301 U.S. 337, 351 , 352 S., 57 S.Ct. 816, 822, 823.   That reason is impelling here so that if at all possible 20 may be allowed to serve its great purpose - the protection of the individual in his civil liberties.

Sec. 20 was enacted to enforce the Fourteenth Amendment. 3   It derives4 from 2 of the Civil Rights Act of April 9, 1866, 14 Stat. 27.5 Senator Trumbull, chairman of the Senate Judiciary Committee which reported the bill, stated that its purpose was 'to protect all persons in the United States in their civil rights, and furnish the means of their vindication.' Cong. Globe, 39th Cong., 1st Sess., p. 211.   In origin it was an antidiscrimination measure (as its language indicated), framed to protect negroes in their newly won rights. See Flack, The Adoption of the Fourteenth Amendment (1908), p. 21.   It was [325 U.S. 91, 99]   amended by 17 of the Act of May 31, 1870, 16 Stat. 144, 18 U.S.C.A. 52, 6 and made applicable to 'any inhabitant of any State or Territory.' 7   The prohibition against the 'deprivation of any rights, privileges, or immunities, secured or protected by the Constitution and laws of the United States' was introduced by the revisers in 1874. R.S. 5510, 18 U.S. C.A. 52.   Those words were taken over from 1 of the Act of April 20, 1871, 17 Stat. 13 (the so-called Ku-Klux Act) which provided civil suits for redress of such wrongs. 8 See Cong. Rec., [325 U.S. 91, 100]   43d Cong., 1st Sess., p. 828.   The 1874 revision was applicable to any person who under color of law, etc., 'subjects, or causes to be subjected' any inhabitant to the deprivation of any rights, etc.   The requirement for a 'willful' violation was introduced by the draftsmen of the Criminal Code of 1909.   Act of March 4, 1909, 35 Stat. 1092.   And we are told 'willfully' was added to 20 in order to make the section 'less severe'. 43 Cong. Rec ., 60th Cong., 2d Sess., p. 3599.

We hesitate to say that when Congress sought to enforce the Fourteenth Amendment9 in this fashion it did a vain thing.   We hesitate to conclude that for 80 years this effort of Congress, renewed several times, to protect the important rights of the individual guaranteed by the Fourteenth Amendment has been an idle gesture.   Yet if the Act falls by reason of vagueness so far as due process of law is concerned, there would seem to be a similar lack of specificity when the privileges and immunities clause (Madden v. Kentucky, 309 U.S. 83 , 60 S.Ct. 406, 125 A.L.R. 1383) and the equal protection clause (Smith v. Texas, 311 U.S. 128 , 61 S.Ct. 164; Hill v. Texas, 316 U.S. 400 , 62 S.Ct. 1159) of the Fourteenth Amendment are involved.   Only if no construction can save the Act from this claim of unconstitutionality are we willing to reach that result.   We do not reach it, for we are of the view that if 20 is confined more narrowly than the lower courts confined it, it can be preserved as one of the sanctions to the great rights which the Fourteenth Amendment was designed to secure. [325 U.S. 91, 101]

II.

We recently pointed out that 'willful' is a word 'of many meanings, its construction often being influenced by its context.' Spies v. United States, 317 U.S. 492, 497 , 63 S.Ct. 364, 367.   At times, as the Court held in United States v. Murdock, 290 U.S. 389, 394 , 54 S.Ct. 223, 225, the word denotes an act which is intentional rather than accidental.   And see United States v. Illinois Cent. R. Co., 303 U.S. 239 , 58 S.Ct. 533.   But 'when used in a criminal statute, it generally means an act done with a bad purpose.' United States v. Murdock, 290 U.S. at page 394, 54 S.Ct. at page 225.   And see Felton v. United States, 96 U.S. 699 ; Potter v. United States, 155 U.S. 438 , 15 S.Ct. 144; Spurr v. United States, 174 U.S. 728 , 19 S.Ct. 812; Hargrove v. United States, 5 Cir., 67 F. 820, 90 A.L.R. 1276.   In that event something more is required than the doing of the act proscribed by the statute. Cf. United States v. Balint, 258 U.S. 250 , 42 S.Ct. 301.   An evil motive to accomplish that which the statute condemns becomes a constituent element of the crime. Spurr v. United States, supra, 174 U.S. at page 734, 19 S.Ct. at page 815; United States v. Murdock, supra, 290 U.S. at page 395, 54 S.Ct. at page 225.   And that issue must be submitted to the jury under appropriate instructions. United States v. Ragen, 314 U.S. 513 524, 62 S.Ct. 374, 379.

An analysis of the cases in which 'willfully' has been held to connote more than an act which is voluntary or intentional would not prove helpful as each turns on its own peculiar facts. Those cases, however, make clear that if we construe 'willfully' in 20 as connoting a purpose to deprive a person of a specific constitutional right, we would introduce no innovation. The Court, indeed, has recognized that the requirement of a specific intent to do a prohibited act may avoid those consequences to the accused which may otherwise render a vague or indefinite statute invalid.   The constitutional vice in such a statute is the essential injustice to the accused of placing him on trial for an offense, the nature of which the statute does not define and hence of which it gives no warning. [325 U.S. 91, 102]   See United States v. L. Cohen Grocery Co., supra.   But where the punishment imposed is only for an act knowingly done with the purpose of doing that which the statute prohibits, the accused cannot be said to suffer from lack of warning or knowledge that the act which he does is a violation of law.   The requirement that the act must be willful or purposeful may not render certain, for all purposes, a statutory definition of the crime which is in some respects uncertain.   But it does relieve the statute of the objection that it punishes without warning an offense of which the accused was unaware. That was pointed out by Mr. Justice Brandeis speaking for the Court in Omaechevarria v. Idaho, 246 U.S. 343 , 38 S.Ct. 323.   An Idaho statute made it a misdemeanor to graze sheep 'upon any range usually occupied by any cattle grower.' Rev. Codes Idaho 6872.   The argument was that the statute was void for indefiniteness because it failed to provide for the ascertainment of boundaries of a 'range' or for determining what length of time was necessary to make a prior occupation a 'usual' one.   The Court ruled that 'any danger to sheepmen which might otherwise arise from indefiniteness, is removed by section 6314 of Revised Codes, which provides that: 'In every crime or public offence there must exist a union, or joint operation, of act and intent, or criminal negligence." Id., 246 U.S. at page 348, 38 S.Ct. at page 325.   A similar ruling was made in Hygrade Provision Co. v. Sherman, 266 U.S. 497 , 45 S.Ct. 141.   The charge was that a criminal statute which regulated the sale of 'kosher' meat or products 'sanctioned by the orthodox Hebrew religious requirements', Penal Law N.Y. 435, subd. 4, was unconstitutional for want of any ascertainable standard of guilt.   The Court speaking through Mr. Justice Sutherland stated, '... since the statutes require a specific intent to defraud in order to encounter their prohibitions, the hazard of prosecution which appellants fear loses whatever substantial foundation it might have in the absence of such a requirement.'   266 U.S. at pages 502, 503, 45 S.Ct. at page 143. In United States v. Ragen, supra, we took [325 U.S. 91, 103]   that course in a prosecution for willful evasion of a federal income tax where it was alleged that the defendant had deducted more than 'reasonable' allowances for salaries.   By construing the statute to require proof of bad faith we avoided the serious question which the rule of United States v. L. Cohen Grocery Co., supra, might have presented.   We think a like course is appropriate here.

Moreover, the history of 20 affords some support for that narrower construction.   As we have seen, the word 'willfully' was not added to the Act until 1909.   Prior to that time it may be that Congress intended that he who deprived a person of any right protected by the Constitution should be liable without more.   That was the pattern of criminal legislation which has been sustained without any charge or proof of scienter.   Shevlin- Carpenter Co. v. Minnesota, 218 U.S. 57 , 30 S.Ct. 663; United States v. Balint, supra.   And the present Act in its original form would have been susceptible of the same interpretation apart from the equal protection clause of the Fourteenth Amendment, where 'purposeful discriminatory' action must be shown. Snowden v. Hughes, 321 U.S. 1, 8 , 9 S., 64 S.Ct. 397, 401, 402.   But as we have seen, the word 'willfully' was added to make the section 'less severe'.   We think the inference is permissible that its severity was to be lessened by making it applicable only where the requisite bad purpose was present, thus requiring specific intent not only where discrimination is claimed but in other situations as well.   We repeat that the presence of a bad purpose or evil intent alone may not be sufficient.   We do say that a requirement of a specific intent to deprive a person of a federal right made definite by decision or other rule of law saves the Act from any charge of unconstitutionality on the grounds of vagueness.

Once the section is given that construction, we think that the claim that the section lacks an ascertainable standard of guilt must fail.   The constitutional requirement that a criminal statute be definite serves a high func- [325 U.S. 91, 104]   tion.   It gives a person acting with reference to the statute fair warning that his conduct is within its prohibition.   This requirement is met when a statute prohibits only 'willful' acts in the sense we have explained. One who does act with such specific intent is aware that what he does is precisely that which the statute forbids.   He is under no necessity of guessing whether the statute applies to him (see Connally v. General Construction Co., 269 U.S. 385 , 46 S.Ct. 126) for he either knows or acts in reckless disregard of its prohibition of the deprivation of a defined constitutional or other federal right. See Gorin v. United States, 312 U.S. 19, 27 , 28 S., 61 S.Ct. 429, 433, 434.   Nor is such an act beyond the understanding and comprehension of juries summoned to pass on them.   The Act would then not become a trap for law enforcement agencies acting in good faith.   'A mind intent upon willful evasion is inconsistent with surprised innocence.' United States v. Ragen, supra, 314 U.S. at page 524, 62 S.Ct. at page 379.

It is said, however, that this construction of the Act will not save it from the infirmity of vagueness since neither a law enforcement official nor a trial judge can know with sufficient definiteness the range of rights that are constitutional.   But that criticism is wide of the mark. For the specific intent required by the Act is an intent to deprive a person of a right which has been made specific either by the express terms of the Constitution or laws of the United States or by decisions interpreting them.   Take the case of a local officer who persists in enforcing a type of ordinance which the Court has held invalid as violative of the guarantees of free speech or freedom of worship.   Or a local official continues to select juries in manner which flies in the teeth of decisions of the Court.   If those acts are done willfully, how can the officer possibly claim that he had no fair warning that his acts were prohibited by the statute?   He violates the statute not merely because he has a bad purpose but because he acts in defiance of announced rules of law.   He who defies a [325 U.S. 91, 105] decision interpreting the Constitution knows precisely what he is doing.   If sane, he hardly may be heard to say that he knew not what he did.   Of course, willful conduct cannot make definite that which is undefined.   But willful violators of constitutional requirements, which have been defined, certainly are in no position to say that they had no adequate advance notice that they would be visited with punishment.   When they act willfully in the sense in which we use the word, they act in open defiance or in reckless disregard of a constitutional requirement which has been made specific and definite.   When they are convicted for so acting, they are not punished for violating an unknowable something.

The Act so construed has narrower range in all its applications than if it were interpreted in the manner urged by the government.   But the only other alternative, if we are to avoid grave constitutional questions, is to construe it as applicable only to those acts which are clearly marked by the specific provisions of the Constitution as deprivations of constitutional rights, privileges, or immunities, and which are knowingly done within the rule of Ellis v. United States, supra.   But as we have said that course would mean that all protection for violations of due process of law would drop out of the Act.   We take the course which makes it possible to preserve the entire Act and save all parts of it from constitutional challenge.   If Congress desires to give the Act wider scope, it may find ways of doing so.   Moreover, here as in Apex Hosiery Co. v. Leader, 310 U.S. 469 , 60 S.Ct. 982, 128 A.L.R. 1044, we are dealing with a situation where the interpretation of the Act which we adopt does not preclude any state from punishing any act made criminal by its own laws.   Indeed, the narrow construction which we have adopted more nearly preserves the traditional balance between the States and the national government in law enforcement than that which is urged upon us. [325 U.S. 91, 106]   United States v. Classic, supra, met the test we suggest.   In that case we were dealing merely with the validity of an indictment, not with instructions to the jury.   The indictment was sufficient since it charged a willful failure and refusal of the defendant-election officials to count the votes cast, by their alteration of the ballots and by their false certification of the number of votes cast for the respective candidates. 313 U.S. at pages 308, 309, 61 S.Ct. at pages 1034, 1035.   The right so to vote is guaranteed by Art. I, 2 and 4 of the Constitution.   Such a charge is adequate since he who alters ballots or without legal justification destroys them would be acting willfully in the sense in which 20 uses the term.   The fact that the defendants may not have been thinking in constitutional terms is not material where their aim was not to enforce local law but to deprive a citizen of a right and that right was protected by the Constitution.   When they so act they at least act in reckless disregard of constitutional prohibitions or guarantees.   Likewise, it is plain that basic to the concept of due process of law in a criminal case is a trial-a trial in a court of law, not a 'trial by ordeal.'   Brown v. Mississippi, 297 U.S. 278, 285 , 56 S.Ct. 461, 465.   It could hardly be doubted that they who 'under color of any law, statute, ordinance, regulation, or custom' act with that evil motive violate 20.   Those who decide to take the law into their own hands and act as prosecutor, jury, judge, and executioner plainly act to deprive a prisoner of the trial which due process of law guarantees him.   And such a purpose need not be expressed; it may at times be reasonably inferred from all the circumstances attendant on the act. See Tot v. United States, 319 U.S. 463 , 63 S.Ct. 1241.

The difficulty here is that this question of intent was not submitted to the jury with the proper instructions.   The court charged that petitioners acted illegally if they applied more force than was necessary to make the arrest effectual or to protect themselves from the prisoner's al- [325 U.S. 91, 107]   leged assault.   But in view of our construction of the word 'willfully' the jury should have been further instructed that it was not sufficient that petitioners had a generally bad purpose.   To convict it was necessary for them to find that petitioners had the purpose to deprive the prisoner of a constitutional right, e.g. the right to be tried by a court rather than by ordeal.   And in determining whether that requisite bad purpose was present the jury would be entitled to consider all the attendant circumstance-the malice of petitioners, the weapons used in the assault, its character and duration, the provocation if any, and the like.

It is true that no exception was taken to the trial court's charge.   Normally we would under those circumstances not take note of the error. See Johnson v. United States, 318 U.S. 189, 200 , 63 S.Ct. 549, 555.   But there are exceptions to that rule.   United States v. Atkinson, 297 U.S. 157, 160 , 56 S.Ct. 391, 392; Clyatt v. United States, 197 U.S. 207, 221 , 222 S., 25 S.Ct. 429, 432, 433.   And where the error is so fundamental as not to submit to the jury the essential ingredients of the only offense on which the conviction could rest, we think it is necessary to take note of it on our own motion.   Even those guilty of the most heinous offenses are entitled to a fair trial.   Whatever the degree of guilt, those charged with a federal crime are entitled to be tried by the standards of guilt which Congress has prescribed.

III.

It is said, however, that petitioners did not act 'under color of any law' within the meaning of 20 of the Criminal Code.   We disagree.   We are of the view that petitioners acted under 'color' of law in making the arrest of Robert Hall and in assaulting him.   They were officers of the law who made the arrest.   By their own admissions they assaulted Hall in order to protect themselves and to keep their prisoner from escaping.   It was their duty [325 U.S. 91, 108]   under Georgia law to make the arrest effective.   Hence, their conduct comes within the statute.

Some of the arguments which have been advanced in support of the contrary conclusion suggest that the question under 20 is whether Congress has made it a federal offense for a state officer to violate the law of his State.   But there is no warrant for treating the question in state law terms.   The problem is not whether state law has been violated but whether an inhabitant of a State has been deprived of a federal right by one who acts under 'color of any law.'   He who acts under 'color' of law may be a federal officer or a state officer.   He may act under 'color' of federal law or of state law.   The statute does not come into play merely because the federal law or the state law under which the officer purports to act is violated.   It is applicable when and only when someone is deprived of a federal right by that action.   The fact that it is also a violation of state law does not make it any the less a federal offense punishable as such.   Nor does its punishment by federal authority encroach on state authority or relieve the state from its responsibility for punishing state offenses. 10

We agree that when this statute is applied to the action of state officials, it should be construed so as to respect the proper balance between the States and the federal government in law enforcement.   Violation of local law does not necessarily mean that federal rights have been invaded.   The fact that a prisoner is assaulted, injured, or even murdered by state officials does not necessarily mean that he is deprived of any right protected or secured by the [325 U.S. 91, 109]   Constitution or laws of the United States. Cf. Logan v. United States, 144 U.S. 263 , 12 S.Ct. 617, dealing with assaults by federal officials.   The Fourteenth Amendment did not alter the basic relations between the States and the national government. United States v. Harris, 106 U.S. 629 , 1 S.Ct. 601; In re Kemmler, 136 U.S. 436, 448 , 10 S.Ct. 930, 934.   Our national government is one of delegated powers alone.   Under our federal system the administration of criminal justice rests with the States except as Congress, acting within the scope of those delegated powers, has created offenses against the United States. Jerome v. United States, 318 U.S. 101, 105 , 63 S.Ct. 483, 486.   As stated in United States v. Cruikshank, 92 U.S. 542, 553 , 554 S., '   It is no more the duty or within the power of the United States to punish for a conspiracy to falsely imprison or murder within a State, than it would be to punish for false imprisonment or murder itself.'   And see United States v. Fox, 95 U.S. 670 , 672.   It is only state action of a 'particular character' that is prohibited by the Fourteenth Amendment and against which the Amendment authorizes Congress to afford relief.   Civil Rights Cases, 109 U.S. 3, 11 , 13 S., 3 S.Ct. 18, 21, 23.   Thus Congress in 20 of the Criminal Code did not undertake to make all torts of state officials federal crimes.   It brought within 20 only specified acts done 'under color' of law and then only those acts which deprived a person of some right secured by the Constitution or laws of the United States.

This section was before us in United States v. Classic, 313 U.S. 299, 326 , 61 S.Ct. 1031, 1043, where we said: 'Misuse of power, possessed by virtue of state law and made possible only because the wrongdoer is clothed with the authority of state law, is action taken 'under color of' state law.'   In that case state election officials were charged with failure to count the votes as cast, alteration of the ballots, and false certification of the number of votes cast for the respective candidates. 313 U.S. at pages 308, 309, 61 S.Ct. at pages 1034, 1035.   We stated that those acts of the defendants 'were committed in the course of [325 U.S. 91, 110]   their performance of duties under the Louisiana statute requiring them to count the ballots, to record the result of the count, and to certify the result of the election.' Id., 313 U.S. at pages 325, 326, 61 S.Ct. at pages 1042, 1043.   In the present case, as we have said, the defendants were officers of the law who had made an arrest and who by their own admissions and to certify the result of the election.' themselves and to keep the prisoner from escaping, i.e. to make the arrest effective.   That was a duty they had under Georgia law. United States v. Classic is, therefore, indistinguishable from this case so far as 'under color of' state law is concerned.   In each officers of the State were performing official duties; in each the power which they were authorized to exercise was misused.   We cannot draw a distinction between them unless we are to say that 20 is not applicable to police officers.   But the broad sweep of its language leaves no room for such an exception.

It is said that we should abandon the holding of the Classic case.   It is suggested that the present problem was not clearly in focus in that case and that its holding was ill-advised.   A reading of the opinion makes plain that the question was squarely involved and squarely met.   It followed the rule announced in Ex parte Commonwealth of Virginia, 100 U.S. 339 , 346, that a state judge who in violation of state law discriminated against negroes in the selection of juries violated the Act of March 1, 1875, 18 Stat. 336.   It is true that that statute did not contain the words under 'color' of law.   But the Court in deciding what was state action within the meaning of the Fourteenth Amendment held that it was immaterial that the state officer exceeded the limits of his authority. '... as he acts in the name and for the State, and is clothed with the State's power, his act is that of the State.   This must be so, or the constitutional prohibition has no meaning.   Then the State has clothed one of its agents with power to annul or to evade it.'   100 U.S. at page 347.   And see Commonwealth of Virginia v. Rives, [325 U.S. 91, 111]   100 U.S. 313 , 321.   The Classic case recognized, without dissent, that the contrary view would defeat the great purpose which 20 was designed to serve.   Reference is made to statements11 of Senator Trumbull in his discussion of 2 of the Civil Rights Act of 1866, 14 Stat. 27, and to statements of Senator Sherman concerning the 1870 Act12 as supporting the conclusion that 'under color of any law' was designed to include only action taken by officials pursuant to state law.   But those statements in their context are inconclusive on the precise problem involved in the Classic case and in the present case.   We are not dealing here with a case where an officer not authorized to act nevertheless takes action.   Here the state officers were authorized to make an arrest and to take such steps as were necessary to make the arrest effective.   They acted without authority only in the sense that they used excessive force in making the arrest effective. It is clear that under 'color' of law means under 'pretense' of law.   Thus acts of officers in the ambit of their personal pursuits are plainly excluded.   Acts of officers who undertake to perform their official duties are included whether they hew to the line of their authority or overstep it.   If, as suggested, the statute was designed to embrace only action which the State in fact authorized, the words 'under color of any law' were hardly apt words to express the idea.

Nor are the decisions under 33 of the Judicial Code, 28 U.S.C. 76, 28 U.S.C.A. 76, in point.   That section gives the right of removal to a federal court of any criminal prosecution begun in a state court against a revenue officer of the United States 'on account of any act done under color of his office or of any such (revenue) law.'   The cases under it recognize that it is an 'exceptional' procedure which wrests from state courts the power to try offenses against [325 U.S. 91, 112]   their own laws. State of Maryland v. Soper (No. 1), 270 U.S. 9, 29 , 35 S., 46 S.Ct. 185, 189, 191; State of Colorado v. Symes, 286 U.S. 510, 518 , 52 S.Ct. 635, 637.   Thus the requirements of the showing necessary for removal are strict.   See State of Maryland v. Soper ( No. 2), 270 U.S. 36, 42 , 46 S.Ct. 192, 193, saying that acts 'necessary to make the enforcement effective' are done under 'color' of law.   Hence those cases do not supply an authoritative guide to the problems under 20 which seeks to afford protection against officers who possess authority to act and who exercise their powers in such a way as to deprive a person of rights secured to him by the Constitution or laws of the United States.   It is one thing to deprive state courts of their authority to enforce their own laws.   It is quite another to emasculate an Act of Congress designed to secure individuals their constitutional rights by finely spun distinctions concerning the precise scope of the authority of officers of the law.   Cf. Yick Wo v. Hopkins, 118 U.S. 356 , 6 S.Ct. 1064.

But beyond that is the problem of stare decisis.   The construction given 20 in the Classic case formulated a rule of law which has become the basis of federal enforcement in this important field.   The rule adopted in that case was formulated after mature consideration.   It should be good for more than one day only.   We do not have here a situation comparable to Mahnich v. Southern S.S. Co., 321 U.S. 96 , 64 S.Ct. 455, where we overruled a decision demonstrated to be a sport in the law and inconsistent with what preceded and what followed.   The Classic case was not the product of hasty action or inadvertence.   It was not out of line with the cases which preceded.   It was designed to fashion the governing rule of law in this important field.   We are not dealing with constitutional interpretations which throughout the history of the Court have wisely remained flexible and subject to frequent re-examination.   The meaning which the Classic case gave to the phrase 'under color of any law involved only a construction of the statute. hence if it states a rule un- [325 U.S. 91, 113]   desirable in its consequences, Congress can change it.   We add only to the instability and uncertainty of the law if we revise the meaning of 20 to meet the exigencies of each case coming before us.

Since there must be a new trial, the judgment below is reversed.

REVERSED.

Mr. Justice RUTLEDGE, concurring in the result.

For the compelling reason stated at the end of this opinion I concur in reversing the judgment and remanding the cause for further proceedings.   But for that reason, my views would require that my vote be cast to affirm the judgment, for the reasons stated by Mr. Justice MURPHY and others I feel forced, in the peculiar situation, to state.

The case comes here established in fact as a gross abuse of authority by state officers. Entrusted with the state's power and using it, without a warrant or with one of only doubtful legality1 they invaded a citizen's home, arrested him for alleged theft of a tire, forcibly took him in handcuffs to the courthouse yard, and there beat him to death.   Previously they had threatened to kill him, fortified themselves at a near-by bar, and resisted the bartender's importunities not to carry out the arrest.   Upon this and other evidence which overwhelmingly supports (140 F.2d at page 665) the verdict, together with instructions adequately [325 U.S. 91, 114]   covering an officer's right to use force, the jury found the petitioners guilty.

The verdict has shaped their position here.   Their contention hardly disputes the facts on which it rests. 2    They do not come therefore as faithful state officers, innocent of crime.   Justification has been foreclosed.   Accordingly, their argument now admits the offense, but insists it was against the state alone, not the nation.    So they have made their case in this Court. 3

In effect, the position urges it is murder they have done,4 not deprivation of constitutional right.   Strange as the argument is the reason.   It comes to this, that abuse of state power creates immunity to federal power.   Because what they did violated the state's laws, the nation cannot reach their conduct. 5   It may deprive the citizen of his liberty and his life.   But whatever state officers may do in abuse of their official capacity can give this Government and its courts no concern.   This, though the prime object of the Fourteenth Amendment and Section 20 was to secure these fundamental rights against wrongful denial by exercise of the power of the states.

The defense is not pretty.   Nor is it valid.   By a long course of decision from Ex parte Commonwealth of Virginia, 100 U.S. 339 , to United States v. Classic, 313 U.S. 299 , 61 S.Ct. 1031 it has been re- [325 U.S. 91, 115]   jected. 6   The ground should not need ploughing again. It was cleared long ago and thoroughly.   It has been kept clear, until the ancient doubt, laid in the beginning, was resurrected in the last stage of this case.   The evidence has nullified any pretense that petitioners acted as individuals, about their personal though nefarious business. They used the power of official place in all that was done.    The verdict has foreclosed semblance of any claim that only private matters, not touching official functions, were involved. Yet neither was the state's power, they say.

There is no third category.   The Amendment and the legislation were not aimed at rightful state action.   Abuse of state power was the target.   Limits were put to state authority, and states were forbidden to pass them, by whatever agency. 7   It is too late now, if there were better reason than exists for doing so, to question that in these matters abuse binds the state and is its act, when done by [325 U.S. 91, 116]   one to whom it has given power to make the abuse effective to achieve the forbidden ends.   Vague ideas of dual federalism,8 of ultra vires doctrine imported from private agency,9 and of want of finality in official action, 10 do not nullify what four years of civil strife secured and eighty years have verified.   For it was abuse of basic civil and political rights, by states and their officials, that the Amendment and the enforcing legislation were adopted to uproot.

The danger was not merely legislative or judicial.   Nor was it threatened only from the state's highest officials.   It was abuse by whatever agency the state might invest with its power capable of inflicting the deprivation.   In all its flux, time makes some things axiomatic.   One has been that state officials who violate their oaths of office and flout [325 U.S. 91, 117]   the fundamental law are answerable to it when their misconduct brings upon them the penalty it authorizes and Congress has provided.

There could be no clearer violation of the Amendment or the statute.   No act could be more final or complete, to denude the victim of rights secured by the Amendment's very terms. Those rights so destroyed cannot be restored.   Nor could the part played by the state's power in causing their destruction be lessened, though other organs were now to repudiate what was done.   The state's law might thus be vindicated.   If so, the vindication could only sustain, it could not detract from the federal power.   Nor could it restore what the federal power shielded.   Neither acquittal nor conviction, though affirmed by the state's highest court, could resurrect what the wrongful use of state power has annihilated.   There was in this case abuse of state power, which for the Amendment's great purposes was state action, final in the last degree, depriving the victim of his liberty and his life without due process of law.

If the issues made by the parties themselves were allowed to govern, there would be no need to say more.   At various stages petitioners have sought to show that they used no more force than was necessary, that there was no state action, and that the evidence was not sufficient to sustain the verdict and the judgment.   These issues, in various formulations,11 have comprehended their case.   All have been resolved against them without error.   This should end the matter. [325 U.S. 91, 118]

II.

But other and most important issues have been injected and made decisive to reverse the judgment.   Petitioners have not denied that they acted 'willfully' within the meaning of Section 20 or that they intended to do the acts which took their victim's liberty and life.   In the trial court they claimed justification.   But they were unable to prove it.   The verdict, on overwhelming evidence, has concluded against them their denial of bad purpose and reckless disregard of rights.   This is necessarily implied in the finding that excessive force was used.   No complaint was made of the charge in any of these respects and no request for additional charges concerning them was offered.   Nor, in the application for certiorari or the briefs, have they raised questions of the requisite criminal intent or of unconstitutional vagueness in the statute's definition of the crime.   However, these issues have been bought forward, so far as the record discloses, first by the dissenting opinion in the Court of Appeals, then by inquiry at the argument and in the disposition here.

The story would be too long, to trace in more than outline the history of Section 20 and companion provisions, in particular Section 19, 12 with which it must be considered on any suggestion of fatal ambiguity.   But this history cannot be ignored, unless we would risk throwing overboard what the nation's greatest internal conflict created and eight [325 U.S. 91, 119]   decades have confirmed, in protection of individual rights against impairment by the states.

Sections 19 and 20 are twin sections in all respects that concern any question of vagueness in defining the crimes.   There are important differences.   Section 19 strikes at conspiracies, Section 20 at substantive offenses.   The former protects 'citizens,' that latter 'inhabitants.' There are, however, no differences in the basic rights guarded.   Each protects in a different way the rights and privileges secured to individuals by the Constitution.   If one falls for vagueness in pointing to these, the other also must fall for the same reason.   If one stands, so must both.   It is not one statute therefore which we sustain or nullify.   It is two.

The sections have stood for nearly eighty years.   Nor has this been without attack for ambiguity.   Together the two sections have repelled it.   In 1915, one of this Court's greatest judges, speaking for it, summarily disposed of the suggestion that Section 19 is invalid: 'It is not open to question that this statute is constitutional. ... (It) dealt with Federal rights, and with all Federal rights, and protected them in the lump ....' United States v. Mosley, 238 U.S. 383, 386 , 387 S., 35 S.Ct. 904, 905.   And in United States v. Classic, 313 U.S. 299 , 61 S.Ct. 1031, the Court with equal vigor reaffirmed the validity of both sections, against dissenting assault for fatal [325 U.S. 91, 120]   ambiguity in relation to the constitutional rights then in question. . these more recent pronouncements but reaffirmed earlier and repeated ones.   The history should not require retelling.   But old and established freedoms vanish when history is forgotten.

Section 20 originated in the Civil Rights Act of 1866, 14 Stat. 27, Section 19 in the Enforcement Act of 1870, 16 Stat. 141, 6.   Their great original purpose was to strike at discrimination, particularly against Negroes, the one securing civil, the other political rights.   But they were not drawn so narrowly.   From the beginning Section 19 protected all 'citizens,' Section 20 'inhabitants.'

At first Section 20 secured only rights enumerated in the Civil Rights Act.   The first ten years brought it, through broadening changes, to substantially its present form.   Only the word 'willfully' has been added since then, a change of no materiality, for the statute implied it beforehand. 13 35 Stat. 1092.   The most important change of the first decade replaced the specific enumeration of the Civil Rights Act with the present broad language covering 'the deprivation of any rights, privileges, or immunities secured or protected by the Constitution and laws of the United States.' R.S. 5510, 18 U.S.C.A. 52.   This inclusive designation brought Section 20 into conformity with Section 19's original coverage of 'any right or privilege secured to him by the Constitution or laws of the United States.'   Since then, under these generic designations, the two have been literally identical in the scope of the rights they secure.   The slight difference in wording cannot be one of substance. 14 [325 U.S. 91, 121]   Throughout a long and varied course of application the sections have remained unimpaired on the score of vagueness in the crimes they denounce.   From 1874 to today they have repelled all attacks purposed to invalidate them.   None has succeeded.   If time and uniform decision can give stability to statutes, these have acquired it.

Section 20 has not been much used, in direct application, until recently.   There were however a number of early decisions. 15   Of late the section has been applied more frequently, in considerable variety of situation, against varied and vigorous attack. 16   In United States v. Classic, 313 U.S. at page 321, 61 S.Ct. at page 1040, as has been stated, this Court gave it clear cut sanction.   The opinion expressly repudiated any idea that the section, or Section 19, is vitiated by ambiguity.   Moreover, this was done in terms which leave no room to say that the decision was not focused upon that question. 17   True, application to Fourteenth Amendment [325 U.S. 91, 122]   rights was reserved because the question was raised for the first time in the Government's brief filed here. 313 U.S. at page 329, 61 S.Ct. at page 1044.   But the statute was sustained in application to a vast range of rights secured by the Constitution, apart from the reserved segment, as the opinion's language and the single reservation itself attest.   The ruling, thus broad, cannot have been inadvertent.   For it was repeated concerning both sections, broadly, forcefully, and upon citation of long-established authority. And this was done in response to a vigorous dissent which made the most of the point of vagueness. 18   The point was flatly, and deliberately, rejected.   The Court cannot have been blinded by other issues to the import of this one.

The Classic decision thus cannot be put aside in this case.   Nor can it be demonstrated that the rights secured by the Fourteenth Amendment are more numerous or more dubious than the aggregate encompassed by other [325 U.S. 91, 123]   constitutional provisions.   Certainly 'the equal protection of the laws,' guaranteed by the Amendment, is not more vague and indefinite than many rights protected by other commands. 19 The same thing is true of 'the privileges or immunities of citizens of the United States.'   The Fifth Amendment contains a due process clause as broad in its terms restricting national power as the Fourteenth is of state power. 20   If Section 20 (with Section 19) is valid in general coverage of other constitutional rights, it cannot be void in the less sweeping application to Fourteenth Amendment rights.   If it is valid to assure the rights 'plainly and directly' secured by other provisions, it is equaly valid to protect those 'plainly and directly' secured by the Fourteenth Amendment, including the expressly guaranteed rights not to be deprived of life, liberty or property without due process of law.   If in fact there could be any difference among the various rights protected, in view of the history it would be that the section applies more clearly to Fourteenth Amendment rights than to others. Its phrases 'are all phrases of large generalities.   But they are not generalities of unillumined vagueness; they are generalities circumscribed by history and appropriate to the largeness of the problems of government with which they were concerned.' Malinski v. People of State of New York, 324 U.S. 401 , 65 S.Ct. 781, 787, concurring opinion.

Historically, the section's function and purpose have been to secure rights given by the Amendment. From the Amendment's adoption until 1874, it was Fourteenth Amendment legislation.   Surely when in that year the section was expanded to include other rights these were [325 U.S. 91, 124]   not dropped out.   By giving the citizen additional security in the exercise of his voting and other political rights, which was the section's effect, unless the Classic case falls, Congress did not take from him the protection it previously afforded (wholly apart from the prohibition of different penalties)21 against deprivation of such rights on account of race, color or previous condition of servitude, or repeal the prior safeguard of civil rights.

To strike from the statute the rights secured by the Fourteenth Amendment, but at the same time to leave within its coverage the vast area bounded by other constitutional provisions, would contradict both reason and history.   No logic but one which nullifies the historic foundations of the Amendment and the section could support such an emasculation.   There should be no judicial hack work cutting out some of the great rights the Amendment secures but leaving in others.   There can be none excising all protected by the Amendment, but leaving [325 U.S. 91, 125]   every other given by the Constitution intact under the statute's aegis.

All that has been said of Section 20 applies with equal force to Section 19.   It had an earlier more litigious history, firmly establishing its validity. 22   It also has received recent ap- [325 U.S. 91, 126]   plication,23 without question for ambiguity except in the Classic case, which nevertheless gave it equal sanction with its substantive counterpart.

Separately, and often together in application, Sections 19 and 20 have been woven into our fundamental and statutory law.   They have place among our more permanent legal achievements.   They have safeguarded many rights and privileges apart from political ones. Among those buttressed, either by direct application or through the general conspiracy statute, Section 37, 18 U.S.C. 88, 18 U.S.C.A. 88,24 are the rights to a fair trial, including freedom from sham trials; to be free from arrest and detention by methods constitutionally forbidden and from extortion of property by such methods; rom extortion of confessions; from mob action incited or shared by state officers; from failure to furnish police protection on proper occasion and demand; from interference with the free exercise of religion, freedom of the press, freedom of speech and assembly; 25 and [325 U.S. 91, 127]   the necessary import of the decisions is that the right to be free from deprivation of life itself, without due process of law, that is, through abuse of state power by state officials, is as fully protected as other rights so secured.

So much experience cannot be swept aside, or its teaching annulled, without overthrowing a great, and a firmly established, constitutional tradition. Nor has the feared welter of uncertainty arisen.   Defendants have attacked the sections, or their application, often and strenuously.   Seldom has complaint been made that they are too vague and uncertain. Objections have centered principally about 'state action,' including 'color of law' and failure by inaction to discharge official duty, cf. Catlette v. United States, 4 Cir., 132 F.2d 902, and about the strength of federal power to reach particular abuses. 26   More rarely they have touched other matters, such as the limiting effect of official privilege27 and, in occasional instances, mens rea. 28   [325 U.S. 91, 128]   In all this wealth of attack accused officials have little used the shield of ambiguity.   The omission, like the Court's rejection in the Classic case, cannot have been inadvertent.   There are valid reasons for it, apart from the old teaching that the matter has been foreclosed.

Moreover, statutory specificity has two purposes, to give due notice that an act has been made criminal before it is done and to inform one accused of the nature of the offense charged, so that he may adequately prepare and make his defense.   More than this certainly the Constitution does not require. Cf. Amend. VI.   All difficulty on the latter score vanishes, under Section 20, with the indictment's particularization of the rights infringed and the acts infringing them. If it is not sufficient in either respect, in these as in other cases the motion to quash or one for a bill of particulars is at the defendant's disposal.   The decided cases demonstrate that accused persons have had little or no difficulty to ascertain the rights they have been charged with transgressing or the acts of transgression. 29   So it was with the defendants in this case. They were not puzzled to know for what they were indicted, as their proof and their defense upon the law conclusively show.   They simply misconceived that the victim had no federal rights and that what they had done was not a crime within the federal power to penalize. 30 That kind of error relieves no one from penalty. [325 U.S. 91, 129]   In the other aspect of specificity, two answers, apart from experience, suffice.   One is that Section 20, and Section 19, are no more general and vague, Fourteenth Amendment rights included, than other criminal statutes commonly enforced against this objection.   The Sherman Act is the most obvious illustration. 31

Furthermore, the argument of vagueness, to warn men of their conduct, ignores the nature of the criminal act itself and the notice necessarily given from this.   Section 20 strikes only at abuse of official functions by state officers. It does not reach out for crimes done by men in general.   Not murder per se, but murder by state officers in the course of official conduct and done with the aid of state power, is outlawed.   These facts, inherent in the crime, give all the warning constitutionally required.   For one, so situated, who goes so far in misconduct can have no excuse of innocence or ignorance.

Generally state officials know something of the individual's basic legal rights.   If they do not, they should, for they assume that duty when they assume their office. Ignorance of the law is no excuse for men in general.   It is less an excuse for men whose special duty is to apply it, and therefore to know and observe it.   If their knowledge is not comprehensive, state officials know or should know when they pass the limits of their authority, so far at any rate that their action exceeds honest error of judgment and amounts to abuse of their office and its function. When they enter such a domain in dealing with the citizen's rights, they should do so at their peril, whether that [325 U.S. 91, 130]   be created by state or federal law.   For their sworn oath and their first duty are to uphold the Constitution, then only the law of the state which too is bound by the charter.   Since the statute, as I think, condemns only something more than error of judgment, made in honest effort at once to apply and to follow the law, cf. United States v. Murdock, 290 U.S. 389 , 54 S.Ct. 223, officials who violate it must act in intentional or reckless disregard of individual rights and cannot be ignorant that they do great wrong. 32   This being true, they must be taken to act at peril of incurring the penalty placed upon such conduct by the federal law, as they do of that the state imposes.

What has been said supplies all the case requires to be decided on the question of criminal intent.   If the criminal act is limited, as I think it must be and the statute intends, to infraction of constitutional rights, including rights secured by the Fourteenth Amendment, by conduct which amounts to abuse of one's official place or reckless disregard of duty, no undue hazard or burden can be placed on state officials honestly seeking to perform the rightful functions of their office.   Others are not entitled to greater protection.

But, it is said, a penumbra of rights may be involved, which none can know until decision has been made and infraction may occur before it is had. It seems doubtful this could be true in any case involving the abuse of official function which the statute requires and, if it could, that one guilty of such an abuse should have immunity for that reason.   Furthermore, the doubtful character of the [325 U.S. 91, 131]   right infringed could give reason at the most to invalidate the particular charge, not for outlawing the statute or narrowly restricting its application in advance of compelling occasion.

For there is a body of well-established, clear-cut fundamental rights, including many secured by the Fourteenth Amendment, to all of which the sections may and do apply, without specific enumeration and without creating hazards of uncertainty for conduct or defense.   Others will enter that category.   So far, at the least when they have done so, the sections should stand without question of their validity. Beyond this, the character of the act proscribed and the intent it necessarily implies would seem to afford would-be violators all of notice the law requires, that they act at peril of the penalty it places on their misconduct.

We have in this case no instance of mere error in judgment, made in good faith.   It would be time enough to reverse and remand a conviction, obtained without instructions along these lines, if such a case should arise.   Actually the substance of such instruction was given in the wholly adequate charge concerning the officer's right to use force, though not to excess.   When, as here, a state official abuses his place consciously or grossly in abnegation of its rightful obligation, and thereby tramples underfoot the established constitutional rights of men or citizens, his conviction should stand when he has had the fair trial and full defense the petitioners have been given in this case.

III. Two implicit but highly important considerations must be noticed more definitely.   One is the fear grounded in concern for possible maladjustment of federal-state relations if this and like convictions are sustained.   Enough has been said to show that the far is not well grounded. The same fear was expressed, by some in exaggerated and [325 U.S. 91, 132]   highly emotional terms, when Section 2 of the Civil Rights Act, the antecedent of Section 20, was under debate in Congress. 33 The history of the legislation's enforcement gives it no support. The fear was not realized in later experience.   Eighty years should be enough to remove any remaining vestige. The volume of prosecutions and convictions has been small, in view of the importance of the subject matter and the length of time the statutes have been in force.   There are reasons for this, apart from self-restraint of federal prosecuting officials.

One lies in the character of the criminal act and the intent which must be proved.   A strong case must be made to show abuse of official function, and therefore to secure indictment or conviction.   Trial must be 'by an impartial jury of the State and district wherein the crime shall have been committed.' Const., Amend. VI; cf. Art. III, 2.   For all practical purposes this means within the state of which the accused is an officer.   Citizens of the state have not been, and will not be, ready to indict or convict their local officers on groundless charges or in doubtful cases. The sections can be applied effectively only when twelve of them concur in a verdict which accords with the prosecuting official's belief that the accused has violated another's fundamental rights.   A federal official therefore faces both a delicate and a difficult task when he undertakes to charge and try a state officer under the terms of Sections 19 and 20.   The restraint which has been shown is as much enforced by these limitations as it has been voluntary. [325 U.S. 91, 133]    These are the reasons why prosecution has not been frequent, has been brought only in cases of gross abuse, and therefore has produced no grave or substantial problem of interference by federal authority in state affairs.   But if the problem in this phase of the case were more serious than it has been or is likely to be, the result legally could not be to give state officials immunity from the obligations and liabilities the Amendment and its supporting legislation have imposed. For the verdict of the struggle which brought about adoption of the Amendment was to the contrary.

Lying beneath all the surface arguments is a deeper implication, which comprehends them. It goes to federal power.   It is that Congress could not in so many words denounce as a federal crime the intentional and wrongful taking of an individual's life or liberty by a state official acting in abuse of his official function and applying to the deed all the power of his office.   This is the ultimate purport of the notions that state action is not involved and that the crime is against the state alone, not the nation.   It is reflected also in the idea that the statute can protect the victim in his many procedural rights encompassed in the right to a fair trial before condemnation, but cannot protect him in the right which comprehends all others, the right to life itself.

Suffice it to say that if these ideas did not pass from the American scene once and for all, as I think they did, upon adoption of the Amendment without more, they have long since done so. Violation of state law there may be.   But from this no immunity to federal authority can arise where any part of the Constitution has made it supreme.   To the Constitution state officials and the states themselves owe first obligation.   The federal power lacks no strength to reach their malfeasance in office when it infringes constitutional rights.   If that is a great power, it is one generated by the Constitution and the Amend- [325 U.S. 91, 134]   ments, to which the states have assented and their officials owe prime allegiance. 34

The right not to be deprived of life or liberty by a state officer who takes it by abuse of his office and its power is such a right.   To secure these rights is not beyond federal power.   This Sections 19 and 20 have done, in a manner history long since has validated.

Accordingly, I would affirm the judgment.

My convictions are as I have stated them.   Were it possible for me to adhere to them in my vote, and for the Court at the same time to dispose of the cause, I would act accordingly.   The Court, however, is divided in opinion.   If each member accords his vote to his belief, the case cannot have disposition.   Stalemate should not prevail for any reason, however compelling, in a criminal cause or, if avoidable, in any other.   My views concerning appropriate disposition are more nearly in accord with those stated by Mr. Justice DOUGLAS, in which three other members of the Court concur, than they are with the views of my dissenting brethren who favor outright reversal. Accordingly, in order that disposition may be made of this case, my vote has been cast to reverse the decision of the Court of Appeals and remand the cause to the District Court for further proceedings in accordance with the disposition required by the opinion of Mr. Justice DOUGLAS.

Mr. Justice MURPHY, dissenting.

I dissent.   Robert Hall, a Negro citizen, has been deprived not only of the right to be tried by a court rather than by ordeal.   He has been deprived of the right of life itself.   That right belonged to him not because he was a Negro or a member of any particular race or creed.   That right was his because he was an American citizen, because [325 U.S. 91, 135]   he was a human being.   As such, he was entitled to all the respect and fair treatment that befits the dignity of man, a dignity that is recognized and guaranteed by the Constitution.   Yet not even the semblance of due process has been accorded him.   He has been cruelly and unjustifiably beaten to death by local police officers acting under color of authority derived from the state.   It is difficult to believe that such an obvious and necessary right is indefinitely guaranteed by the Constitution or is foreign to the knowledge of local police officers so as to cast any reasonable doubt on the conviction under Section 20 of the Criminal Code of the perpetrators of this 'shocking and revolting episode in law enforcement.'

The Constitution and Section 20 must be read together inasmuch as Section 20 refers in part to certain provisions of the Constitution.   Section 20 punishes any one, acting under color of any law, who willfully deprives any person of any right, privilege or immunity secured or protected by the Constitution or laws of the United States.   The pertinent part of the Constitution in this instance is Section 1 of the Fourteenth Amendment, which firmly and unmistakably provides that no state shall deprive any person of life without due process of law. Translated in light of this specific provision of the Fourteenth Amendment, Section 20 thus punishes any one, acting under color of state law, who willfully deprives any person of life without due process of law.   Such is the clear statutory provision upon which this conviction must stand or fall.

A grave constitutional issue, however, is said to lurk in the alleged indefiniteness of the crime outlawed by Section 20.   The rights, privileges and immunities secured or protected by the Constitution or laws of the United States are claimed to be so uncertain and flexible, dependent upon changeable legal concepts, as to leave a state official confused and ignorant as to what actions of his might run afoul of the law.   The statute, it is concluded, must be set aside for vagueness. [325 U.S. 91, 136]   It is axiomatic, of course, that a criminal statute must give a clear and unmistakable warning as to the acts which will subject one to criminal punishment.   And courts are without power to supply that which Congress has left vague.   But this salutary principle does not mean that if a statute is vague as to certain criminal acts but definite as to others the entire statute must fall.   Nor does it mean that in the first case involving the statute to come before us we must delineate all the prohibited acts that are obscure and all those that are explicit.

Thus it is idle to speculate on other situations that might involve Section 20 which are not now before us.   We are unconcerned here with state officials who have coerced a confession from a prisoner, denied counsel to a defendant or made a faulty tax assessment.   Whatever doubt may exist in those or in other situations as to whether the state officials could reasonably anticipate and recognize the relevant constitutional rights is immaterial in this case.   Our attention here is directed solely to three state officials who, in the course of their official duties, have unjustifiably beaten and crushed the body of a human being, thereby depriving him of trial by jury and of life itself.   The only pertinent inquiry is whether Section 20, by its reference to the Fourteenth Amendment guarantee that no state shall deprive any person of life without due process of law, gives fair warning of state officials that they are criminally liable for violating this right to life.

Common sense gives an affirmative answer to that problem.   The reference in Section 20 to rights protected by the Constitution is manifest and simple.   At the same time, the right not to be deprived of life without due process of law is distinctly and lucidly protected by the Fourteenth Amendment.   There is nothing vague or indefinite in these references to this most basic of all human rights.   Knowledge of a comprehensive law library is unnecessary for officers of the law to know that the right to murder [325 U.S. 91, 137]   individuals in the course of their duties is unrecognized in this nation.   No appreciable amount of intelligence or conjecture on the part of the lowliest state official is needed for him to realize that fact; nor should it surprise him to find out that the Constitution protects persons from his reckless disregard of human life and that statutes punish him therefor.   To subject a state official to punishment under Section 20 for such acts is not to penalize him without fair and definite warning.   Rather it is to uphold elementary standards of decency and to make American principles of law and our constitutional guarantees mean something more than pious rhetoric.

Under these circumstances it is unnecessary to send this case back for a further trial on the assumption that the jury was not charged on the matter of the willfulness of the state officials, an issue that was not raised below or before us.   The evidence is more than convincing that the officials willfully, or at least with wanton disregard of the consequences, deprived Robert Hall of his life without due process of law.   A new trial could hardly make that fact more evident; the failure to charge the jury on willfulness was at most an inconsequential error.   Moreover, the presence or absence of willfulness fails to decide the constitutional issue raised before us. Section 20 is very definite and certain in its reference to the right to life as spelled out in the Fourteenth Amendment quite apart from the state of mind of the state officials.   A finding of willfulness can add nothing to the clarity of that reference.

It is an illusion to say that the real issue in this case is the alleged failure of Section 20 fully to warn the state officials that their actions were illegal.   The Constitution, Section 20 and their own consciences told them that.   They knew that they lacked any mandate or authority to take human life unnecessarily or without due process of law in the course of their duties.   They knew that their excessive and abusive [325 U.S. 91, 138]   use of authority would only subvert the ends of justice.   The significant question, rather, is whether law enforcement officers and those entrusted with authority shall be allowed to violate with impunity the clear constitutional rights of the inarticulate and the friendless.   Too often unpopular minorities, such as Negroes, are unable to find effective refuge from the cruelties of bigoted and ruthless authority.   States are undoubtedly capable of punishing their officers who commit such outrages.   But where, as here, the states are unwilling for some reason to prosecute such crimes the federal government must step in unless constitutional guarantees are to become atrophied.

This necessary intervention, however, will be futile if courts disregard reality and misuse the principle that criminal statutes must be clear and definite.   Here state officers have violated with reckless abandon a plain constitutional right of an American citizen.   The two courts below have found and the record demonstrates that the trial was fair and the evidence of guilt clear. And Section 20 unmistakably outlaws such actions by state officers.   We should therefore affirm the judgment.

Mr. Justice ROBERTS, Mr. Justice FRANKFURTER and Mr. Justice JACKSON, dissenting.

Three law enforcement officers of Georgia, a county sheriff, a special deputy and a city policeman, arrested a young Negro charged with a local crime, that of stealing a tire.   While he was in their custody and handcuffed, they so severely beat the lad that he died.   This brutal misconduct rendered these lawless law officers guilty of manslaughter, if not of murder, under Georgia law.   Instead of leaving this misdeed to vindication by Georgia law, the United States deflected Georgia's responsibility by instituting a federal prosecution.   But this was a criminal homicide only under Georgia law.   The United States could not prosecute the petitioners for taking life.   In- [325 U.S. 91, 139]   stead, a prosecution was brought, and the conviction now under review was obtained, under 20 of the Criminal Code, 18 U.S.C. 52, 18 U.S.C.A. 52.   Section 20, originating in 2 of the Civil Rights Act of April 9, 1866, 14 Stat. 27, was put on the statute books on May 31, 1870, but for all practical purposes it has remained a dead letter all these years.   This section provides that 'Whoever, under color of any law, statute, ordinance, regulation, or custom, willfully subjects ... any inhabitant of any State ... to the deprivation of any rights, privileges, or immunities secured or protected by the Constitution and laws of the United States ... shall be fined not more than one thousand dollars, or imprisoned not more than one year, or both.'   Under 37 of the Criminal Code, 18 U.S. C. 88, 18 U.S.C.A. 88, a conspiracy to commit any federal offense is punishable by imprisonment for two years.   The theory of this prosecution is that one charged with crime is entitled to due process of law and that that includes the right to an orderly trial of which the petitioners deprived the Negro.

Of course the petitioners are punishable.   The only issue is whether Georgia alone has the power and duty to punish, or whether this patently local crime can be made the basis of a federal prosecution.   The practical question is whether the States should be relieved from responsibility to bring their law officers to book for homicide, by allowing prosecutions in the federal courts for a relatively minor offense carrying a short sentence.   The legal question is whether, for the purpose of accomplishing this relaxation of State responsibility, hitherto settled principles for the protection of civil liberties shall be bent and tortured.

By the Thirteenth Amendment slavery was abolished.   In order to secure equality of treatment for the emancipated, the Fourteenth Amendment was adopted at the [325 U.S. 91, 140]   same time.   To be sure, the latter Amendment has not been confined to instances of discrimination because of race or color.   Undoubtedly, however, the necessary protection of the new freedmen was the most powerful impulse behind he Fourteenth Amendment.   The vital part of that Amendment, Section 1, reads as follows: 'All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside.   No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.'

By itself, this Amendment is merely an instrument for striking down action by the States in defiance of it.   It does not create rights and obligations actively enforceable by federal law. However, like all rights secured by the Constitution of the United States, those created by the Fourteenth Amendment could be enforced by appropriate federal legislation.   The general power of Congress to pass measures effectuating the Constitution is given by Art. I, 8, cl. 18-the Necessary-and-Proper- Clause.   In order to indicate the importance of enforcing the guarantees of Amendment XIV, its fifth section specifically provides: 'The Congress shall have power to enforce, by appropriate legislation, the provisions of this article.'

Accordingly, Congress passed various measures for its enforcement.   It is familiar history that much of this legislation was born of that vengeful spirit which to no small degree envenomed the Reconstruction era.   Legislative respect for constitutional limitations was not at its height and Congress passed laws clearly unconstitutional. See Civil Rights Cases, 109 U.S. 3 , 3 S.Ct. 18. One of the laws of this period was the Act of May 31, 1870, 16 Stat. 140. In its [325 U.S. 91, 141]   present form, as 20, it is now here for the first time on full consideration as to its meaning and its constitutionality, unembarrassed by preoccupation both on the part of counsel and court with the more compelling issue of the power of Congress to control state procedure for the election of federal officers.   If 20 were read as other legislation is read, by giving it the meaning which its language in its proper setting naturally and spontaneously yields, it is difficult to believe that there would be real doubt about the proper construction.   The unstrained significance of the words chosen by Congress, the disclosed purpose for which they were chosen and to which they were limited, the always relevant implications of our federal system especially in the distribution of power and responsibility for the enforcement of the criminal law as between the States and the National Government, all converge to make plain what conduct Congress outlawed by the Act of 1870 and what impliedly it did not.

The Fourteenth Amendment prohibited a State from so acting as to deprive persons of new federal rights defined by it.   Section 5 of the Amendment specifically authorized enabling legislation to enforce that prohibition.   Since a State can act only through its officers, Congress provided for the prosecution of any officer who deprives others of their guaranteed rights and denied such an officer the right to defend by claiming the authority of the State for his action.   In short, Congress said that no State can empower an officer to commit acts which the Constitution forbade the State from authorizing, whether such unauthorized command be given for the State by its legislative or judicial voice, or by a custom contradicting the written law. See Nashville, C. & St. L. Ry. v. Browning, 310 U.S. 362, 369 , 60 S.Ct. 968, 972.   The present prosecution is not based on an officer's claim that that for which the United States seeks his punishment was commanded or authorized by the law of his State.   On the contrary, [325 U.S. 91, 142]   the present prosecution is based on the theory that Congress made it a federal offense for a State officer to violate the explicit law of his State.   We are asked to construe legislation which was intended to effectuate prohibitions against States for defiance of the Constitution, to be equally applicable where a State duly obeys the Constitution, but an officer flouts State law and is unquestionably subject to punishment by the State for his disobedience.

So to read 20 disregards not merely the normal function of language to express ideas appropriately.   It fails not merely to leave to the States the province of local crime enforcement, that the proper balance of political forces in our federalism requires.   It does both, heedless of the Congressional purpose, clearly evinced even during the feverish Reconstruction days, to leave undisturbed the power and the duty of the States to enforce their criminal law by restricting federal authority to the punishment only of those persons who violate federal rights under claim of State authority and not by exerting federal authority against offenders of State authority.   Such a distortion of federal power devised against recalcitrant State authority never entered the minds of the proponents of the legislation.

Indeed, we have the weightiest evidence to indicate that they rejected that which now, after seventy-five years, the Government urges.   Section 20 of the Criminal Code derived from 2 of the Civil Rights Act of 1866, 14 Stat. 27.   During the debate on that section, Senator Trumbull, the Chairman of the Senate Judiciary Committee, answered fears concerning the loose inclusiveness of the phrase 'color of law'.   In particular, opponents of the Act were troubled lest it would make criminals of State judges and officials for carrying out their legal duties. Senator Trumbull agreed that they would be guilty if they consciously helped to enforce discriminatory State [325 U.S. 91, 143]   legislation.   Federal law, replied Senator Trumbull, was directed against those, and only against those, who were not punishable by State law precisely because they acted in obedience to unconstitutional State law and by State law justified their action.   Said Senator Trumbull, 'If an offense is committed against a colored person simply because he is colored, in a State where the law affords him the same protection as if he were white, this act neither has nor was intended to have anything to do with his case, because he has adequate remedies in the State courts; but if he is discriminated against under color of State laws because he is colored, then it becomes necessary to interfere for his protection.' Cong.Globe, 39th Cong., 1st Sess., p. 1758.   And this language applies equally to 17 of the Act of May 31, 1870, 16 Stat. 140, 144 (now 20 of the Criminal Code) which re-enacted the Civil Rights Act.

That this legislation was confined to attempted deprivations of federal rights by State law and was not extended to breaches of State law by its officials, is likewise confirmed by observations of Senator Sherman, another leading Reconstruction statesman.   When asked about the applicability of the 1870 Act to a Negro's right to vote when State law provided for that right, Senator Sherman replied, 'That is not the case with which we are dealing.   I intend to propose an amendment to present a question of that kind.   This bill only proposes to deal with offenses committed by officers or persons under color of existing State law, under color of existing State constitutions.   No man could be convicted under this bill reported by the Judiciary Committee unless the denial of the right to vote was done under color or pretense of State regulation.   The whole bill shows that.   My honorable friend from California has not read this bill with his usual care if he does not see that that runs through the whole of the provisions of the first and second sections of the bill which [325 U.S. 91, 144]   simply punish officers as well as persons for discrimination under color of State laws or constitutions; and so it provides all the way through.' Cong.Globe, 41st Cong., 2d Sess., p. 3663.   The debates in Congress are barren of any indication that the supporters of the legislation now before us had the remotest notion of autho izing the National Government to prosecute State officers for conduct which their State had made a State offense where the settled custom of the State did not run counter to formulated law.

Were it otherwise it would indeed be surprising.   It was natural to give the shelter of the Constitution to those basic human rights for the vindication of which the successful conduct of the Civil War was the end of a long process.   And the extension of federal authority so as to guard against evasion by any State of these newly created federal rights was an obvious corollary.   But to attribute to Congress the making overnight of a revolutionary change in the balance of the political relations between the National Government and the States without reason, is a very different thing.   And to have provided for the National Government to take over the administration of criminal justice from the States to the extent of making every lawless act of the policeman on the beat or in the station house, whether by way of third degree or the illegal ransacking for evidence in a man's house (see Gouled v. United States, 255 U.S. 298 , 41 S.Ct. 261; Byars v. United States, 273 U.S. 28 , 47 S.Ct. 248; Brown v. Mississippi, 297 U.S. 278 , 56 S.Ct. 461; Chambers v. Florida, 309 U.S. 227 , 60 S.Ct. 472), a federal offense, would have constituted a revolutionary break with the past overnight.   The desire for such a dislocation in our federal system plainly was not contemplated by the Lyman Trumbulls and the John Shermans, and not even by the Thaddeus Stevenses.

Regard for maintaining the delicate balance 'between the judicial tribunals of the Union and of the states' in [325 U.S. 91, 145]   the enforcement of the criminal law has informed this Court, as it has influenced Congress, 'in recognition of the fact that the public good requires that those relations be not disturbed by unnecessary conflict between courts equally bound to guard and protect rights secured by the constitution.' Ex parte Royall, 117 U.S. 241, 251 , 6 S.Ct. 734, 740. Observance of this basic principle under our system of Government has led this Court to abstain, even under more tempting circumstances than those now here, from needless extension of federal criminal authority into matters that normally are of state concern and for which the States had best be charged with responsibility.

We have reference to 33 of the Judicial Code, as amended, 28 U.S.C . 76, 28 U.S.C.A. 76.   That provision gives the right of removal to a federal court of any criminal prosecution begun in a State court against a revenue officer of the United States 'on account of any act done under color of his office or of any such (revenue) law.' Where a state prosecution for manslaughter is resisted by the claim that what was done was justifiably done by a United States officer one would suppose that this Court would be alert to construe very broadly 'under color of his office or of any such law' in order to avoid the hazards of trial, whether through conscious or unconscious discrimination or hostility, of a United States officer accused of homicide and to assure him a trial in a presumably more impartial federal court.   But this Court long ago indicated that misuse of federal authority does not come within the statute's protection.   State of Tennessee v. Davis, 100 U.S. 257, 261 , 262 S.. More recently, this Court in a series of cases unanimously insisted that a petition for removal must show with particularity that the offense for which the State is prosecuting resulted from a discharge of federal duty.   'It must appear that the prosecution of him for whatever offense has arisen out of the acts done by him under color of federal authority and in enforcement of federal law, and [325 U.S. 91, 146]   he must by direct averment exclude the possibility that it was based on acts or conduct of his, not justified by his federal duty. ... The defense he is to make is that of his immunity of punishment by the st te, because what he did was justified by his duty under the federal law, and because he did nothing else on which the prosecution could be based.' State of Maryland v. Soper (No. 1), 270 U.S. 9, 33 , 46 S.Ct. 185, 190. And see State of Maryland v. Soper (No. 2), 270 U.S. 36 , 46 S. Ct. 192; State of Maryland v. Soper (No. 3), 270 U.S. 44 , 46 S.Ct. 194; State of Colorado v. Symes, 286 U.S. 510 , 52 S.Ct. 635.   To the suggestion that such a limited construction of the removal statute enacted for the protection of the United States officers would restrict its effectiveness, the answer was that if Congress chose to afford even greater protection and to withdraw from the State the right and duty to enforce their criminal law in their own courts, it should express its desire more specifically. State of Maryland v. Soper ( No. 2), 270 U.S. 36, 42 , 44 S., 46 S.Ct. 192, 193, 194. That answer should be binding in the situation now before us.

The reasons which led this Court to give such a restricted scope to the removal statute are even more compelling as to 20.   The matter concerns policies inherent in our federal system and the undesirable consequences of federal prosecution for crimes which are obviously and predominantly state crimes no matter how much sophisticated argumentation may give them the appearance of federal crimes.   Congress has not expressed a contrary purpose, either by the language of its legislation or by anything appearing in the environment out of which its language came.   The practice of government for seventy-five years likewise speaks against it. Nor is there a body of judicial opinion which bids us find in the unbridled excess of a State officer, constituting a crime under his State law, action taken 'under color of law' which federal law forbids.

Only two reported cases considered 20 before United States v. Classic, 313 U.S. 299 , 61 S.Ct. 1031. In United States v. Bun- [325 U.S. 91, 147]   tin, C.C., 10 F. 730, a teacher, in reliance on a State statute, refused admittance to a colored child, while in United States v. Stone, D.C., 188 F. 836, election supervisors who acted under a Maryland election law were held to act 'under color of law'.   In neither case was there a patent violation of State law but rather an attempt at justification under State law.   United States v. Classic, supra, is the only decision that looks the other way.   In that case primary election officials were held to have acted 'under color of law' even though the acts complained of as a federal offense were likewise condemned by Louisiana law.   The truth of the matter is that the focus of attention in the Classic case was not our present problem, but was the relation of primaries to the protection of the electoral process under the United States Constitution.   The views in the Classic case thus reached ought not to stand in the way of a decision on the merits of a question which has now for the first time been fully explored and its implications for the workings of our federal system have been adequately revealed.

It was assumed quite needlessly in the Classic case that the scope of 20 was co-extensive with the Fourteenth Amendment.   Because the weight of the case was elsewhere, we did not pursue the difference between the power granted to Congress by that Amendment to bar 'any State' from depriving persons of the newly created constitutional rights and the limited extent to which Congress exercised that power, in what is now 20, by making it an offense for one acting 'under color of any law' to deprive another of such constitutional rights.   It may well be that Congress could, within the bounds of the Fourteenth Amendment, treat action taken by a State official even though in defiance of State law and not condoned by ultimate State authority as the action of 'a State'.   It has never been satisfactorily explained how a State can be said to deprive a person of liberty or property without [325 U.S. 91, 148]   due process of law hen the foundation of the claim is that a minor official has disobeyed the authentic command of his State. See Raymond v. Chicago Union Traction Co., 207 U.S. 20, 40 , 41 S., 28 S.Ct. 7, 14, 12 Ann.Cas. 757.   Although action taken under such circumstances has been deemed to be deprivation by a 'State' of rights guaranteed by the Fourteenth Amendment for purposes of federal jurisdiction, the doctrine has had a fluctuating and dubious history. Compare Barney v. City of New York, 193 U.S. 430 , 24 S.Ct. 502, with Raymond v. Chicago Union Traction Co., supra; Memphis v. Cumberland Telephone & Telegraph Co., 218 U.S. 624 , 31 S.Ct. 115, with Home Tel. & Tel. Co. v. Los Angeles, 227 U.S. 278 , 33 S.Ct. 312. Barney v. City of New York, supra, which ruled otherwise, although questioned, has never been overruled. See, for instance, Iowa-Des Moines Nat. Bank v. Bennett, 284 U.S. 239, 246 , 247 S., 52 S.Ct. 133, 136, and Snowden v. Hughes, 321 U.S. 1, 13 , 64 S.Ct. 397, 403.1

But assuming unreservedly that conduct such as that now before us, perpetrated by State officers in flagrant defiance of State law, may be attributed to the State under the Fourteenth Amendment, this does not make it action under 'color of any law.'   Section 20 is much narrower than the power of Congress. Even though Congress might have swept within the federal criminal law any action that could be deemed within the vast reach of the Fourteenth Amendment, Congress did not do so.   The presuppositions of our federal system, the pronouncements of the statesmen who shaped this legislation, and the normal meaning of language powerfully counsel against attributing to Congress intrusion into the sphere of criminal law tradition- [325 U.S. 91, 149]   ally and naturally reserved for the States alone. When due account is taken of the considerations that have heretofore controlled the political and legal relations between the States and the National Government, there is not the slightest warrant in the reason of things for torturing language plainly designed for nullifying a claim of acting under a State law that conflicts with the Constitution so as to apply to situations where State law is in conformity with the Constitution and local misconduct is in undisputed violation of that State law.   In the absence of clear direction by Congress we should leave to the States the enforcement of their criminal law, and not relieve States of the responsibility for vindicating wrongdoing that is essentially local or weaken the habits of local law enforcement by tempting reliance on federal authority for an occasional unpleasant task of local enforcement.

II.

In our view then, the Government's attempt to bring an unjustifiable homicide by local Georgia peace officers within the defined limits of the federal Criminal Code cannot clear the first hurdle of the legal requirement that that which these officers are charged with doing must be done under color of Georgia law.

Since the majority of the Court do not share this conviction that the action of the Georgia peace officers was not perpetrated under color of law, we, too, must consider the constitutionality of 20.   All but two members of the Court apparently agree that in so far as 20 purports to subject men to punishment for crime it fails to define what conduct is made criminal.   As misuse of the criminal machinery is one of the most potent and familiar instruments of arbitrary government, proper regard for the rational requirement of definiteness in criminal statutes is basic to civil liberties.   As such it is included in the constitutional guaranty of due process of law.   But four [325 U.S. 91, 150]   members of the Court are of the opinion that this plain constitutional principle of definiteness in criminal statutes may be replaced by an elaborate scheme of constitutional exegesis whereby that which Congress has not defined the courts can define from time to time, with varying and conflicting definiteness in the decisions, and that, in any event, an undefined range of conduct may become sufficiently definite if only such undefined conduct is committed 'willfully'.

In subjecting to punishment 'deprivation of any rights, privileges, or immunities secured or protected by the Constitution and laws of the United States', 20 on its face makes criminal deprivation of the whole range of undefined appeals to the Constitution.   Such is the true scope of the forbidden conduct.   Its domain is unbounded and therefore too indefinite. Criminal statutes must have more or less specific contours. This has none.

To suggest that the 'right' deprivation of which is made criminal by 20 'has been made specific either by the express terms of the Constitution ... or by decisions interpreting (it)' hardly adds definiteness beyond that of the statute's own terms.   What provision is to be deemed 'specific' 'by the express terms of the Constitution' and what not 'specific'?   If the First Amendment safeguarding free speech be a 'specific' provision what about the Fourth?   'All unreasonable searches and seizures and absolutely forbidden by the Fourth Amendment.' Nathanson v. United States, 290 U.S. 41, 46 , 54 S.Ct. 11, 13.   Surely each is among the 'rights, privileges, or immunities secured or protected by the Constitution', deprivation of which is a crime under 20. In any event, what are the criteria by which to determine what express provisions of the Constitution are 'specific' and what provisions are not 'specific'? And if the terms of 20 in and of themselves are lacking in sufficient definiteness for a criminal statute, restriction within the framework of 'decisions interpret- [325 U.S. 91, 151]   ing' the Constitution cannot show the necessary definiteness.   The illustrations given in the Court's opinion underline the inescapable vagueness due to the doubts and fluctuating character of decisions interpreting the Constitution.

This intrinsic vagueness of the terms of 20 surely cannot be removed by making the statute applicable only where the defendant has the 'requisite bad purpose'.   Does that not amount to saying that the black heart of the defendant enables him to know what are the constitutional rights deprivation of which the statute forbids, although we as judges are not able to define their classes or their limits, or, at least, are not prepared to state what they are unless it be to say that 20 protects whatever rights the Constitution protects?

Under the construction proposed for 20, in order for a jury to convict, it would be necessary 'to find that petitioners had the purpose to deprive the prisoner of a constitutional right, e.g. the right to be tried by a court rather than by ordeal.'   There is no question that Congress could provide for a penalty against deprivation by state officials acting 'under color of any law' of 'the right to be tried by a court rather than by ordeal.'   But we cannot restrict the problem raised by 20 to the validity of penalizing a deprivation of this specific constitutional right.   We are dealing with the reach of the statute, for Congress has not particularized as the Court now particularizes.   Such transforming interpolation is not interpretation.   And that is recognized by the sentence just quoted, namely, that the jury in order to convict under 20 must find that an accused 'had the purpose to deprive (another) of a constitutional right', giving this specific constitutional right as 'e.g.,' by way of illustration.   Hence a judge would have to define to the jury what the constitutional rights are deprivation of which is prohibited by 20.   If that is a legal question as to which [325 U.S. 91, 152]   the jury must take instruction from the court, at least the trial court must be possessed of the means of knowing with sufficient definiteness the range of 'rights' that are 'constitutional'.   The court can hardly be helped out in determining that legal question by leaving it to the jury to decide whether the act was 'willfully' committed.

It is not conceivable that this Court would find that a statute cast in the following terms would satisfy the constitutional requirement for definiteness: 'Whoever wilfully commits any act which the Supreme Court of the United States shall find to be a deprivation of any right, privilege, or immunity secured or protected by the Constitution shall be imprisoned not more than, etc.'   If such a statute would fall for uncertainty, wherein does 20 as construed by the Court differ and how can it survive?

It was settled early in our history that prosecutions in the federal courts could not be founded on any undefined body of so-called common law. United States v. Hudson, 7 Cranch 32; United States v. Gooding, 12 Wheat. 460.   Federal prosecutions must be founded on delineation by Congress of what is made criminal.   To base federal prosecutions on the shifting and indeterminate decisions of courts is to sanction prosecutions for crimes based on definitions made by courts.   This is tantamount to creating a new body of federal criminal common law.

It cannot be too often emphasized that as basic a difference as any between our notions of law and those of legal systems not founded on Anglo- American conceptions of liberty is that crimes must be defined by the legislature.   The legislature does not meet this requirement by issuing a blank check to courts for their retrospective finding that some act done in the past comes within the contingencies and conflicts that inhere in ascertaining the content of the Fourteenth Amendment by 'the gradual process of [325 U.S. 91, 153]   judicial inclusion and exclusion.' Davidson v. New Orleans, 96 U.S. 97 , 104.   Therefore, to subject to criminal punishment conduct that the court may eventually find to have been within the scope or the limitations of a legal doctrine underlying a decision is to satisfy the vital requirement for definiteness through an appearance of definiteness in the process of constitutional adjudication which every student of law knows not to comport with actuality.   What the Constitution requires is a definiteness defined by the legislature, not one argumentatively spelled out through the judicial process which, precisely because it is a process can not avoid incompleteness.   A definiteness which requires so much sublety to expound is hardly definite.

It is as novel as it is an inadmissible principle that a criminal statute of indefinite scope can be rendered definite by requiring that a person 'willfully' commit what Congress has not defined but which, if Congress had defined, could constitutionally be outlawed.   Of course Congress can prohibit the deprivation of enumerated constitutional rights.   But if Congress makes it a crime to deprive another of any right protected by the Constitution-and that is what 20 does-this Court cannot escape facing decisions as to what constitutional rights are covered by 20 by saying that in any event, whatever they are, they must be taken away 'willfully'.   It has not been explained how all the considerations of unconstitutional vagueness which are laid bare in the early part of the Court's opinion evaporate by suggesting that what is otherwise too vaguely defined must be 'willfully' committed.

In the early law an undesired event attributable to a particular person was punished regardless of the state of mind of the actor.   The rational development of criminal liability added a mental requirement for criminal culpability, except in a limited class of cases not here relevant. See United States v. Balint, 258 U.S. 250 , 42 S.Ct. 301.   That req- [325 U.S. 91, 154]   uisite mental ingredient is expressed in various forms in criminal statutes, of which the word 'willfully' is one of the most common.   When a criminal statute prohibits something from being 'willfully' done, 'willfully' never defines the physical conduct or the result the bringing of which to pass is proscribed.   'Willfully' merely adds a certain state of mind as a prerequisite to criminal responsibility for the otherwise proscribed act.   If a statute does not satisfy the due-process requirement of giving decent advance notice of what it is which, if happening, will be visited with punishment, so that men may presumably have an opportunity to avoid the happening (see International Harvester Co. v. Kentucky, 234 U.S. 216 , 34 S.Ct. 853; Collins v. Kentucky, 234 U.S. 634 , 34 S. Ct. 924; United States v. L. Cohen Grocery Co., 255 U.S. 81 , 41 S.Ct. 298, 14 A.L.R. 1045; Cline v. Frink Dairy Co., 274 U.S. 445 , 47 S.Ct. 681), then 'willfully' bringing to pass such an undefined and too uncertain event cannot make it sufficiently definite and ascertainable.   'Willfully' doing something that is forbidden, when that something is not sufficiently defined according to the general conceptions of requisite certainty in our criminal law, is not rendered sufficiently definite by that unknowable having been done 'willfully'.   It is true also of a statute that it cannot lift itself up by its bootstraps.

Certainly these considerations of vagueness imply unconstitutionality of the Act at least until 1909.   For it was not until 1909, that the word 'willfully' was introduced.   But the legislative history of that addition affords no evidence whatever that anybody thought that 'willfully' was added to save the statute from unconstitutionality.   The Joint Committee of Congress on the Revision of Laws (which sponsored what became the Criminal Code) gives no such indication, for it did not propose 'willfully'; the reports in neither House of Congress shed any light on the subject, for the bill in neither House proposed that 'willfully' be added; no speech by any one in charge of the [325 U.S. 91, 155]   bill in either House sheds any light on the subject; the report of the Conference Committee, from which 'willfully' for the first time emerges, gives no explanation whatever; and the only reference we have is that to which the Court's opinion refers (43 Cong.Rec., p. 3599).   And that is an unilluminating remark by Senator Daniel of Virginia, who had no responsibility for the measure and who made the remark in the course of an exchange with Senator Heyburn of Idaho, who was in charge of the measure and who complained of an alleged attitude on the part of Southern members to filibuster against the bill because of the retention of Reconstruction legislation.

All this bears not merely on the significance of 'willfully' in a presumably otherwise unconstitutionally vague statute.   It also bears on the fact that, for the purpose of constitutionality, we are dealing not with an old statute that goes back to the Reconstruction days, but only to 1909.

Nor can support be found in the opinions of this Court for the proposition that 'willfully' can make definite prohibitions otherwise indefinite.

In Omaechevarria v. Idaho, 246 U.S. 343 , 38 S.Ct. 323, the Court sustained an Idaho statute prohibiting any person having charge of sheep from allowing them to graze 'upon any range usually occupied by any cattle grower'. Rev.Codes Idaho, 6872.   The statute was attacked under the Due Process Clause in that it failed to provide for the ascertainment of the boundaries of a 'range' or for determining what length of time is necessary to constitute a prior occupation a 'usual' one within the meaning of the Act.   This attack upon the Idaho statute was rejected and for the following reasons: 'Men familiar with range conditions and desirous of observing th law will have little difficulty in determining what is prohibited by it.   Similar expressions are common in the criminal statutes of other (grazing) states. This [325 U.S. 91, 156]   statute presents no greater uncertainty or difficulty, in application to necessarily varying facts, than has been repeatedly sanctioned by this court.' 246 U.S. at page 348, 38 S.Ct. at page 325.

Certainly there is no comparison between a statute employing the concept of a western range and a statute outlawing the whole range of constitutional rights, unascertained if not unascertainable.

To be sure, the opinion of Mr. Justice Brandeis also brought to its support 6314 of Revised Codes of Idaho which provided that 'In every crime or public offense there must exist a union, or joint operation, of act and intent, or criminal negligence.'   But this is merely an Idaho phrasing of the conventional saw in text-books and decisions dealing with criminal law that there must be a mens rea for every offense. In other words, a guilty state of mind is usually required before one can be punished for an outlawed act.   But the definition of the outlawed act is not derived from the state of mind with which it must be committed.   All that Mr. Justice Brandeis meant by 'indefiniteness' in the context of this statute was the claim that the statute did not give enough notice as to the act which was outlawed.   But notice was given by the common knowledge of what a 'range' was, and for good measure he suggested that under the Act a man would have to know that he was grazing sheep where he had no business to graze them.   There is no analogy between the face of this Idaho statute and the face of our statute. The essential difference is that in the Idaho statute the outlawed act was defined; in 20 it is undefined.

In Hygrade Provision Co. v. Sherman, 266 U.S. 497 , 45 S.Ct. 141, New York punished the misrepresentation of meat as 'kosher' or as satisfying 'orthodox Hebrew religious requirements.'   Here, too, the objection of indefiniteness was rejected by this Court. The objection bordered on the frivolous. In this case, too, the opinion of the Court, as in the way of opinions, softened the blow by saying that [325 U.S. 91, 157]   there was no danger of any one being convicted for not knowing what he was doing, for it required him to have consciousness that he was offering meat as 'kosher' meat when he knew very well that it was not.

Thus in both these cases this Court was saying that the criminal statutes under scrutiny, although very specific, did not expose any innocent person to the hazards of unfair conviction, because not merely did the legislation outlaw specifically defined conduct, but guilty knowledge of such defined criminality was also required. It thereby took the legislation outside the scope of United States v. Balint, 258 U.S. 250 , 42 S.Ct. 301, in which the Court sustained the prosecution of one wholly innocent of knowledge of the act, commission of which the statute explicitly forbade.

This case does not involve denying adequate power to Congress.   There is no difficulty in passing effective legislation for the protection of civil rights against improper State action.   What we are concerned with here is something basic in a democratic society, namely, the avoidance of the injustice of prohibiting conduct in terms so vague as to make the understanding of what is proscribed a guess-work too difficult for confident judgment even for the judges of the highest Court in the land.

III.

By holding, in this case, that State officials who violate State law nevertheless act 'under color of' State law, and by establishing as federal crimes violations of the vast, undisclosed range of the Fourteenth Amendment, this Court now creates new delicate and complicated problems for the enforcement of the criminal law.   The answers given to these problems, in view of the tremendous scope of potential offenses against the Fourteenth Amendment, are bound to produce a confusion detrimental to he administration of criminal justice.

The Government recognizes that 'this is the first case brought before this Court in which Section 20 has been applied [325 U.S. 91, 158]   to deprivations of rights secured by the Fourteenth Amendment.'   It is not denied that the Government's contention would make a potential offender against this act of any State official who as a judge admitted a confession of crime, or who as judge of a State court of last resort sustained admission of a confession, which we should later hold constitutionally inadmissable, or who as a public service commissioner issued a regulatory order which we should later hold denied due process or who as a municipal officer stopped any conduct we later should hold to be constitutionally protected.   The Due Process Clause of the Fourteenth Amendment has a content the scope of which this Court determines only as cases come here from time to time and then not without close division and reversals of position. Such a dubious construction of a criminal statute should not be made unless language compels.

That such a pliable instrument of prosecution is to be feared appears to be recognized by the Government. It urges three safeguards against abuse of the broad powers of prosecution for which it contends. (1) Congress it says will supervise the Department's policies and curb excesses by withdrawal of funds.   It surely is casting an impossible burden upon Congress to expect it to police the propriety of prosecutions by the Department of Justice.   Nor would such detailed oversight by Congress make for the effective administration of the criminal law. (2) The Government further urges that since prosecutions must be brought in the district where the crime was committed the judge and jurors of that locality can be depended upon to protect against federal interference with state law enforcement. Such a suggestion would, for practical purposes, transfer the functions of this Court, which adjudicates questions concerning the proper relationship between the federal and State governments, to jurors whose function is to resolve factual questions.   Moreover, [325 U.S. 91, 159]   if federal and State prosecutions are subject to the same influences, it is difficult to see what need there is for taking the prosecution out of the hands of the State.   After all, Georgia citizens sitting as a federal grand jury indicted and other Georgia citizens sitting as a federal trial jury convicted Screws and his associates; and it was a Georgia judge who charged more strongly against them than this Court thinks he should have.

Finally, the Department of Justice gives us this assurance of its moderation:

      '(3) The Department of Justice has established a policy of strict self-limitation with regard to prosecutions under the civil rights acts.   When violations of such statutes are reported, the Department requires that efforts be made to encourage state officials to take appropriate action under state law.   To assure consistent observance of this policy in the enforcement of the civil rights statutes, all United States Attorneys have been instructed to submit cases to the Department for approval before prosecutions or investigations are instituted.   The number of prosecutions which have been brought under the civil rights statutes is small.   No statistics are available with respect to the number of prosecutions prior to 1939, when a special Civil Rights Section was established in the Department of Justice.   Only two cases during this period have been reported: United States v. Buntin, C.C.S.D.Ohio, 10 F. 730, and United States v. Stone, D.C.Md., 188 F. 836. Since 1939, the number of complaints received annually by the Civil Rights Section has ranged from 8,000 to 14, 000 but in no year have prosecutions under both Sections 20 and 19, its companion statute, exceeded 76.   In the fiscal year 1943, for example, 31 full investigations of alleged violations of Section 20 were conducted, and three cases were brought to trial. In the following fiscal year there were 55 such investigations, and prosecutions were instituted in 12 cases. [325 U.S. 91, 160]   'Complaints of violations are often submitted to the Department by local law enforcement officials who for one reason or another may feel themselves powerless to take action under state law.   It is primarily in this area, namely, where the official position of the wrongdoers has apparently rendered the State unable or unwilling to institute proceedings, that the statute has come into operation.   Thus, in the case at bar, the Solicitor General of the Albany Circuit in the State of Georgia, which included Baker County, testified (R. 42):

      'There has been no complaint filed with me in connection with the death of Bobby Hall against Sheriff Screws, Jones, and Kelley.   As to whom I depend for investigation of matters that come into my Court, I am an attorney, I am not a detective and I depend on evidence that is available after I come to Court or get into the case. ... The sheriffs and other peace officers of the community generally get the evidence and I act as the attorney for the state.   I rely on my sheriffs and policemen and peace officers and private citizens also who prosecute each other to investigate the charges that are lodged in Court."

But such a 'policy of strict self-limitation' is not accompanied by assurance of permanent tenure and immortality of those who make it the policy.   Evil men are rarely given power; they take it over from better men to whom it had been entrusted.   There can be no doubt that this shapeless and all-embracing statute can serve as a dangerous instrument of political intimidation and coercion in the hands of those so inclined.

We are told local authorities cannot be relied upon for courageous and prompt action, that often they have personal or political reasons for refusing to prosecute.   If it be significantly true that crimes against local law cannot be locally prosecuted, it is an ominous sign indeed.   In any event, the cure is a re-invigoration of State responsibility.   It is not an undue incursion of remote federal [325 U.S. 91, 161]   authority into local duties with consequent debilitation of local responsibility.

The complicated and subtle problems for law enforcement raised by the Court's decision emphasize the conclusion that 20 was never designed for the use to which it has now been fashioned.   The Government admits that it is appropriate to leave the punishment of such crimes as this to local authorities.   Regard for this wisdom in federal-State relations was not left by Congress to executive discretion.   It is, we are convinced, embodied in the statute itself.
Footnotes

[ Footnote 1 ] A demurrer to the indictment alleging among other things that the matters charged did not constitute an offense against the United States and did not come within the purview of 20 was overruled.   At the end of the government's case petitioners' motion for a directed verdict on the grounds of the insufficiency of the evidence was denied.

[ Footnote 2 ] Moreover, federal as well as state officials would run afoul of the Act since it speaks of 'any law, statute, ordinance, regulation, or custom.'   Comparable uncertainties will exist in the application of the due process clause of the Fifth Amendment.

[ Footnote 3 ] See Cong. Globe, 41st Cong., 2d Sess., pp. 3807, 3808, 3881. Flack, The Adoption of the Fourteenth Amendment (1908) pp. 19-54, 219, 223, 227; Hague v. C.I.O., 307 U.S. 496, 510 , 59 S.Ct. 954, 961.

[ Footnote 4 ] See United States v. Classic, 313 U.S. 299, 327 , 61 S.Ct. 1031, 1043, note 10.

[ Footnote 5 ] 'That any person who, under color of any law, statute, ordinance, regulation, or custom, shall subject, or cause to be subjected, any inhabitant of any State or Territory to the deprivation of any right secured or protected by this act, or to different punishment, pains, or penalties on account of such person having at any time been held in a condition of slavery or involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, or by reason of his color or race, than is prescribed for the punishment of white persons, shall be deemed guilty of a misdemeanor, and, on conviction, shall be punished by fine not exceeding one thousand dollars, or imprisonment not exceeding one year, or both, in the discretion of the court.'

[ Footnote 6 ] 'That any person who, under color of any law, statute, ordinance, regulation, or custom, shall subject, or cause to be subjected, any inhabitant of any State or Territory to the deprivation of any right secured or protected by the last preceding section of this act, or to different punishment, pains, or penalties on account of such person being alien, or by reason of his color or ace, than is prescribed for the punishment of citizens, shall be deemed guilty of a misdemeanor, and, on conviction, shall be punished by fine not exceeding one thousand dollars, or imprisonment not exceeding one year, or both, in the discretion of the court.'

The preceding section referred to read as follows: 'That all persons within the jurisdiction of the United States shall have the same right in every State and Territory in the United States to make and enforce contracts, to sue, be parties, give evidence, and to the full and equal benefit of all laws and proceedings for the security of person and property as is enjoyed by white citizens, and shall be subject to like punishment, pains, penalties, taxes, licenses, and exactions of every kind, and none other, any law, statute, ordinance, regulation, or custom to the contrary notwithstanding.   No tax or charge shall be imposed or enforced by any state upon any person immigrating thereto from a foreign country which is not equally imposed and enforced upon every person immigrating to such State from any other foreign country; and any law of any State in conflict with this provision is hereby declared null and void.' 16 Stat. 144, 16.

[ Footnote 7 ] Its sponsor, Senator Stewart, stated that 'It extends the operation of the civil rights bill, which is well known in the Senate and to the country, to all persons within the jurisdiction of the United States.' Cong. Globe, 41st Cong., 2d Sess., p. 1536.

[ Footnote 8 ] That section provided in part: 'That any person who, under color of any law, statute, ordinance, regulation, custom, or usage of any State, shall subject, or cause to be subjected, any person within the jurisdiction of the United States to the deprivation of any rights, privileges, or immunities secured by the Constitution of the United States, shall, any such law, statute, ordinance, regulation, custom, or usage of the State to the contrary notwithstanding, be liable to the party injured in any action at law, suit in equity, or other proper proceeding for redress.'

This section became 1979 of the Revised Statutes and is now found in 8 U.S.C. 43, 8 U.S.C.A. 43. See Hague v. C.I.O., supra, 307 U.S. at page 510, 59 S.Ct. at page 961, note 3.

[ Footnote 9 ] Sec. 5 thereof provides: 'The Congress shall have power to enforce, by appropriate legislation, the provisions of this article.'

[ Footnote 10 ] The petitioners may be guilty of manslaughter or murder under Georgia law and at the same time liable for the federal offense proscribed by 20.   The instances where 'an act denounced as a crime by both national and state sovereignties' may be punished by each without violation of the double jeopardy provision of the Fifth Amendment are common. United States v. Lanza, 260 U.S. 377, 382 , 43 S.Ct. 141, 143; Hebert v. Louisiana, 272 U.S. 312 , 47 S.Ct. 103, 48 A.L.R. 1102.

[ Footnote 11 ] Cong. Globe, 39th Cong., 1st Sess., p. 1759.

[ Footnote 12 ] Cong. Globe, 41st Cong., 2d Sess., p. 3663.

[ Footnote 1 ] The evidence was conflicting whether the warrant was made out and issued before, or after, the arrest and killing, and if issued beforehand, whether it was valid.   The Court of Appeals noted there was evidence 'that the alleged warrant of arrest was prepared by the sheriff and was a spurious afterthought' (140 F.2d at page 665), but assumed in the petitioner's favor that a valid warrant had been issued.   The dissenting opinion said the victim's shotgun was taken from his home 'not in a search of his person but apparently without lawful warrant.' 140 F.2d at page 667.

[ Footnote 2 ] The crucial dispute of fact was over whether the defendants had used more force than was necessary to restrain the prisoner.   The 'overwhelming weight of the testimony' (140 F.2d at page 665) was that they used not only all force required to subdue him (if it is assumed he resisted), but continued to beat him for fifteen to thirty minutes after he was knocked to the ground.

[ Footnote 3 ] Cf. Part II infra.

[ Footnote 4 ] The dissenting judge in the Court of Appeals thought the local offense was not 'wilful murder, but rather that it was involuntary manslaughter in the commission of an unlawful act.' 140 F.2d at page 666.

[ Footnote 5 ] It does not appear that the state has taken any steps toward prosecution for violation of its law.

[ Footnote 6 ] Cf. notes 7 and 10. And see Neal v. Delaware, 103 U.S. 370 , 397; Civil Rights Cases, 109 U.S. 3 , 15-18, 3 S.Ct. 18, 24-27; Chicago, B. & Q.R. Co. v. Chicago, 166 U.S. 226, 233 , 234 S., 17 S. Ct. 581, 583, 584; Raymond v. Chicago Union Traction Co., 207 U.S. 20 , 35-37, 28 S.Ct. 7, 12, 13, 12 Ann.Cas. 757; Ex parte Young, 209 U.S. 123 , 28 S.Ct. 441, 13 L.R.A.,N.S., 932, 14 Ann.Cas. 764; Home Tel. & Tel. Co. v. Los Angeles, 227 U.S. 278, 288 , 289 S., 33 S.Ct. 312, 315; Cuyahoga River Power Co. v. Akron, 240 U.S. 462 , 36 S.Ct. 402; Fidelity & Deposit Co. v. Tafoya, 270 U.S. 426, 434 , 46 S.Ct. 331, 332; Hopkins v. Southern California Telephone Co., 275 U.S. 393, 398 , 48 S.Ct. 180, 181; Iowa-Des Moines Nat. Bank v. Bennett, 284 U.S. 239, 245 , 246 S., 52 S.Ct. 133, 135, 136; Nixon v. Condon, 286 U.S. 73, 89 , 52 S.Ct. 484, 487, 88 A.L.R. 458; Mosher v. City of Phoenix, 287 U.S. 29 , 53 S.Ct. 67; Sterling v. Constantin, 287 U.S. 378, 393 , 53 S.Ct. 190, 193; Mooney v. Holohan, 294 U.S. 103 , 55 S.Ct. 340, 98 A.L.R. 406; State of Missouri ex rel. Gaines v. Canada, 305 U.S. 337, 343 , 59 S.Ct. 232, 233; Hague v. C.I.O ., 307 U.S. 496, 512 , 59 S.Ct. 954, 962; Cochran v. Kansas, 316 U.S. 255 , 62 S.Ct. 1068; Pyle v. Kansas, 317 U.S. 213 , 63 S.Ct. 177.

[ Footnote 7 ] 'The prohibitions of the Fourteenth Amendment are directed to the States .... It is these which Congress is empowered to enforce, and to enforce against State action, however put forth, whether that action be executive, legislative, or judicial. ... Whoever, by virtue of public position under a State government, deprives another of property, life, or liberty, without due process of law, or denies or takes away the equal protection of the laws, violates the constitutional inhibition; and as he acts in the name and for the State, and is clothed with the State's power, his act is that of the State.   This must be so, or the constitutional prohibition has no meaning.' Ex parte Commonwealth of Virginia, 100 U.S. 339, 346 , 347 S..

      'Misuse of power, possessed by virtue of state law and made possible only because the wrongdoer is clothed with the authority of state law, is action taken 'under color of' state law.' United States v. Classic, 313 U.S. 299, 326 , 61 S.Ct. 1031, 1043, cit ng Ex parte Commonwealth of Virginia, supra, and other authorities.

[ Footnote 8 ] Cf. Part III infra. 'Such enforcement (of the Fourteenth Amendment by Congress) is no invasion of State sovereignty.   No law can be, which the people of the States have, by the Constitution of the United States, empowered Congress to enact.   This extent of the powers of the general government is overlooked, when it is said, as it has been in this case, that the act of March 1, 1875, (18 Stat., part 3, 336) interferes with State rights.' Ex parte Commonwealth of Virginia, 100 U.S. at page 346.

[ Footnote 9 ] Cf. Home Tel. & Tel. Co. v. Los Angeles, 227 U.S. 278, 287 , 33 S.Ct. 312, 315.

[ Footnote 10 ] Compare Barney v. City of New York, 193 U.S. 430 , 24 S.Ct. 502, with Home Tel. & Tel. Co. v. Los Angeles, 227 U.S. 278 , 33 S.Ct. 312, the latter suggesting that the former, 'if it conflicted with the doctrine' of Raymond v. Chicago Union Traction Company, 207 U.S. 20 , 28 S.Ct. 7, 12 Ann.Cas. 757, and Ex parte Young, 209 U.S. 123 , 28 S.Ct. 441, 13 L.R.A.,N.S., 932, 14 Ann.Cas. 764, 'is now so distinguished or qualified as not to be here authoritative or even persuasive.' 227 U.S. at page 294, 33 S.Ct. at page 317. See also Snowden v. Hughes, 321 U.S. 1, 13 , 64 S.Ct. 397, 403; Isseks, Jurisdiction of the Lower Federal Courts to Enjoin Unauthorized Action of State Officials, 40 Harv.L.Rev. 969, 972.

[ Footnote 11 ] Petitioners' objections in law were stated most specifically in the demurrer to the indictment.   These grounds also were incorporated in their motion for a directed verdict and their statement of grounds for appeal.   The grounds for demurrer maintained that the facts alleged were not sufficient to constitute a federal offense, to fall within or violate the terms of any federal law or statute, or to confer jurisdiction upon the District or other federal court. One ground attacked the indictment for vagueness.

[ Footnote 12 ] Section 19 of the Criminal Code, 18 U.S.C. 51, 18 U.S.C.A. 51: 'If two or more persons conspire to injure, oppress, threaten, or intimidate any citizen in the free exercise or enjoyment of any right or privilege secured to him by the Constitution or laws of the United States, or because of his having so exercised the same, or if two or more persons go in disguise on the highway, or on the premises of another, with intent to prevent or hinder his free exercise or enjoyment of any right or privilege so secured, they shall be fined not more than $5,000 and imprisoned not more than ten years, and shall, moreover, be thereafter ineligible to any office, or place of honor, profit, or trust created by the Constitution or laws of the United States.' (Emphasis added.)

Section 20, 18 U.S.C. 52, 18 U.S.C.A. 52, is as follows: 'Whoever, under color of any law, statute, ordinance, regulation, or custom, willfully subjects, or causes to be subjected, any inhabitant of any State, Territory, or District to the deprivation of any rights, privileges, or immunities secured or protected by the Constitution and laws of the United States, or to different punishments, pains, or penalties, on account of such inhabitant being an alien, or by reason of his color, or race, than are prescribed for the punishment of citizens, shall be fined not more than $1,000, or imprisoned not more than one year, or both.' (Emphasis added.)

[ Footnote 13 ] Cf. note 32. President Johnson, vetoing another bill on July 16, 1866, stated that the penalties of the Civil Rights Act 'are denounced against the person who willfully violates the law.' Cong. Globe, 39th Cong ., 1st Sess., 3839.

[ Footnote 14 ] For the history of these changes, see the authorities cited in the opinion of Mr. Justice Douglas, particularly Flack, Adoption of the Fourteenth Amendment (1908).

[ Footnote 15 ] United States v. Rhodes, 27 Fed.Cas. pag 785, No. 16,151; United States v. Jackson, 26 Fed.Cas. page 563, No. 15,459; United States v. Buntin, C.C., 10 F. 730; cf. United States v. Stone, D.C., 188 F. 836, a prosecution under Section 37 of the Criminal Code for conspiracy to violate Section 20; cf. also Id., D.C., 197 F. 483; United States v. Horton, 26 Fed.Cas. page 375, No. 15,392.   The constitutionality of the statute was sustained in the Rhodes case in 1866, and in the Jackson case in 1874. It was likewise sustained in Re Turner, 1867, 24 Fed.Cas. page 337, no. 14,247; Smith v. Moody, 1866, 26 Ind. 299.

[ Footnote 16 ] Cf. the authorities cited infra at note 25.

[ Footnote 17 ] Referring to Section 20, the Court said: 'The generality of the section made applicable as it is to deprivations of any constitutional right, does not obscure its meaning or impair its force within the scope of its application, which is restricted by its terms to deprivations which are willfully inflicted by those acting under color of any law, statute and the like.' 313 U.S. at page 328, 61 S.Ct. at page 1044.

Concerning Section 19, also involved, the Court pointed to the decisions in Ex parte Yarbrough, 110 U.S. 651 , 4 S.Ct. 152, and United States v. Mosley, 238 U.S. 383 , 35 S.Ct. 904, cf. note 22, and commented: '... the Court found no uncertainty or ambiguity in the statutory language, obviously devised to protect the citizen 'in the free exercise (or enjoyment) of any right or privilege secured to him by the Constitution', and concerned itself with the question whether the right to participate in choosing a representative is so secured. Such is our function here.' 313 U.S. at page 321, 61 S.Ct. at page 1040.   The opinion stated further: 'The suggestion that 19 ... is not sufficiently specific to be deemed applicable to primary elections, will hardly bear examination. Section 19 speaks neither of elections nor of primaries.   In unambiguous language it protects 'any right or privilege secured ... by the Constitution,' a phrase which ... extends to the right of the voter to have his vote counted ... as well as to numerous other constitutional rights which are wholly unrelated to the choice of a representative in Congress,' citing United States v. Waddell, 112 U.S. 76 , 5 S.Ct. 35; Logan v. United States, 144 U.S. 263 , 12 S.Ct. 617; In re Quarles, 158 U.S. 532 , 15 S.Ct. 959; Motes v. United States, 178 U.S. 458 , 20 S.Ct. 993; Guinn v. United States, 238 U.S. 347 , 35 S.Ct. 926, L.R.A. 1916A, 1124. Cf. note 18.

[ Footnote 18 ] The dissenting opinion did not urge that Sections 19 and 20 are wholly void for ambiguity, since it put to one side cases involving discrimination for race or color as 'plainly outlawed by the Fourteenth Amendment,' as to which it was said, 'Since the constitutional mandate is plain, there is no reason why 19 or 20 should not be applicable.'   However it was thought 'no such unambiguous mandate' had been given by the constitutional provisions relevant in the Classic case. 313 U.S. at page 332, 61 S.Ct. at page 1046.

[ Footnote 19 ] Cf. note 18.

[ Footnote 20 ] Whether or not the two are coextensive in limitation of federal and state power, respectively, there is certainly a very broad correlation in coverage, and it hardly could be maintained that one is confined by more clear-cut boundaries than the other, although differences in meandering of the boundaries may exist.

[ Footnote 21 ] The Court's opinion in the Classic case treated this clause of Section 20, cf. note 12, as entirely distinct from the preceding clauses, stating that 'the qualification with respect to alienage, color and race, refers only to differences in punishment and not to deprivations of any rights or privileges secured by the Constitution,' (emphasis added) as was thought to be evidenced by the grammatical structure of the section and 'the necessities of the practical application of its provisions.' 313 U.S. 326 , 61 S.Ct. 1043.

The 'pains and penalties' provision is clearly one against discrimination. It does not follow that the qualification as to alienage, color and race does not also refer to the 'deprivations of any rights or privileges' clause, though not in an exclusive sense.   No authority for the contrary dictum was cited.   History here would seem to outweigh doubtful grammar, since, as Section 20 originally appeared in the Civil Rights Act, the qualification as to 'color, or race' (alienage was added later) seems clearly applicable to its entire prohibition.   Although the section is not exclusively a discrimination statute, it would seem clearly, in the light of its history, to include discrimination for alienage, color or race among the prohibited modes of depriving persons of rights or privileges.

[ Footnote 22 ] Ex parte Yarbrough, 1884, 110 U.S. 651 , 4 S.Ct. 152; United States v. Waddell, 1884, 112 U.S. 76 , 5 S.Ct. 35; Logan v. United States, 1882, 144 U.S. 263 , 12 S.Ct. 617; In re Quarles and Butler, 1895, 158 U.S. 532 , 15 S.Ct. 959; Motes v. United States, 1900, 178 U.S. 458 , 20 S.Ct. 993; United States v. Mosley, 1915, 238 U.S. 383 , 35 S.Ct. 904; United States v. Morris, D.C.1903, 125 F. 322; United States v. Lackey, D. C.1900, 99 F. 952, reversed on other grounds, 6 Cir., 107 F. 114, 53 L.R.A. 660, certiorari denied 181 U.S. 621 , 21 S.Ct. 925.

In United States v. Mosley, supra, as is noted in the text, the Court summarily disposed of the question of validity, stating that the section's constitutionality 'is not open to question.' 238 U.S. at page 386, 35 S.Ct. at page 905. Cf. note 17.   The Court was concerned with implied repeal, but stated: 'But 6 (the antecedent of 19 in the Enforcement Act) being devoted, as we have said, to the protection of all Federal rights from conspiracies against them. ... Just as the 14th Amendment ... was adopted with a view to the protection of the colored race, but has been found to be equally important in its application to the rights of all, 6 had a general scope and used general words that have become the most important. ... The section now begins with sweeping general words.   Those words always were in the act, and the present form gives them a congressional interpretation.   Even if that interpretation would not have been held correct in an indictment under 6, which we are far from intimating, and if we cannot interpret the past by the present, we cannot allow the past so far to affect the present as to deprive citizens of the United States of the general protection which, on its face , 19 most reasonably affords.' 238 U.S. at pages 387, 388, 35 S.Ct. at page 906.   The dissenting opinion of Mr. Justice Lamar raised no question of the section's validity.   It maintained that Congress had not included or had removed protection of voting rights from the section, leaving only civil rights within its coverage. 238 U.S. at page 390, 35 S.Ct. at page 907.

The cases holding that the Fourteenth Amendment and Section 19 do not apply to infractions of constitutional rights involving no state action recognize and often affirm the section's applicability to wrongful action by state officials which infringes them: United States v. Cruickshank, 1876, 92 U.S. 542 ; Hodges v. United States, 1906, 203 U.S. 1 , 27 S.Ct. 6; United States v. Powell, 1909, 212 U.S. 564 , 29 S. Ct. 690; see also, Id., C.C., 151 F. 648; Ex parte Riggins, C.C.1904, 134 F. 404, dismissed 199 U.S. 547 , 26 S.Ct. 147; United States v. Sanges, C.C.1891, 48 F. 78, writ of error dismissed 144 U.S. 310 , 12 S.Ct. 609; Powe v. United States, 5 Cir., 1940, 109 F.2d 147, certiorari denied, 309 U.S. 679 , 60 S.Ct. 717. See also United States v. Hall, 1871, 26 Fed.Cas. page 79, No. 15,282; United States v. Mall, 1871, 26 Fed.Cas. page 1147, No. 15,712.

[ Footnote 23 ] Cf. the authorities cited in notes 22 and 25; United States v. Saylor, 322 U.S. 385 , 64 S.Ct. 1101.

[ Footnote 24 ] Sections 19 and 37 clearly overlap in condemning conspiracies to violate constitutional rights.   The latter, apparently has been more frequently used, at any rate recently, when civil rather than political rights are involved.   It goes without saying that in these cases validity of the application of Section 37, charging conspiracy to violate Section 20, depends upon the latter's validity in application to infraction of the rights charged to have been infringed.

[ Footnote 25 ] Recent examples involving these and other rights are: Culp v. United States, 8 Cir., 131 F.2d 93; Catlette v. United States, 4 Cir., 132 F.2d 902; United States v. Sutherland, D.C., 37 F.Supp. 344; United States v. Trierweiler, D.C., 52 F.Supp. 4.

In the Culp case the court said: 'That this section ( 20) has not lost any of its vitality since it was originally enacted, is indicated by ... United States v. Classic. ... It is our opinion that a state law enforcement officer who, under color of state law, willfully and without cause, arrests and imprisons an inhabitant of the United States for the purpose of extortion, deprives him of a right, privilege, and immunity secured and protected by the Constitution of the United States, and commits one of the offenses defined in 52.' 131 F.2d at page 98.   Fourteenth Amendment rights were involved also in the Catlette case; and in United States v. Trierweiler, supra, the court said: 'The congressional purpose, obviously, is to assure enjoyment of the rights of citizens defined by the Fourteenth Amendment, including the mandate that no state shall deprive any person of life, liberty, or property without due process of law ....' 52 F.Supp. at page 5.

United States v. Buntin, C.C., 10 F. 730, involved alleged discrimination for race in denying the right to attend public school.   In United States v. Chaplin, D.C., 54 F.Supp. 926, the court ruled that a state judge, acting in his judicial capacity, is immune to prosecution under Section 37 for violating Section 20. But cf. Ex parte Commonwealth of Virginia, 100 U.S. 339 .

[ Footnote 26 ] These have been the perennial objections, notwithstanding uniform rejection in cases involving interference with both political and civil rights. Cf. the authorities cited in notes 7, 10, 22 and 25.

[ Footnote 27 ] Compare United States v. Chaplin, D.C., 54 F.Supp. 926 (see note 25, supra), with Ex parte Commonwealth of Virginia, 100 U.S. 339 .

[ Footnote 28 ] Cf. United States v. Buntin, C.C., 10 F. 730. One is that the generality of the section's terms simply has not worked out to be a hazard of unconstitutional, or even serious, proportions.   It has not proved a source of practical difficulty.   In no other way can be explained the paucity of the objection's appearance in the wealth of others made.   If experience is the life of the law, as has been said, this has been true pre-eminently in the application of Sections 19 and 20.

[ Footnote 29 ] Cf. authorities cited in notes 7, 10, 22 and 25.

[ Footnote 30 ] Cf. Part III.

[ Footnote 31 ] Compare the statutes upheld in Chaplinsky v. New Hampshire, 315 U.S. 568, 573 , 574 S., 62 S.Ct. 766, 770; Gorin v. United States, 312 U.S. 19 , 23-28, 61 S.Ct. 429, 432-434; State of Minnesota v. Probate Court, 309 U.S. 270, 274 , 60 S.Ct. 523, 526, 126 A.L.R. 530; Old Dearborn Distributing Co. v. Seagram-Distillers Corp., 299 U.S. 183, 196 , 57 S.Ct. 139, 146, 106 A.L.R. 1476; Bandini Petroleum Co. v. Superior Court, 284 U.S. 8, 18 , 52 S.Ct. 103, 107, 78 A.L.R. 826; Whitney v. California, 274 U.S. 357, 360 , 368 S., 369, 47 S.Ct. 641, 645, 646; Fox v. Washington, 236 U.S. 273, 277 , 278 S., 35 S.Ct. 383, 384; United States v. Keitel, 211 U.S. 370 , 393-395, 29 S.Ct. 123, 130, 131.

[ Footnote 32 ] I think all this would be implied if 'willfully' had not been added to Section 20 by amendment.   The addition but reinforces the original purpose. Cf. note 13 supra.   Congress in this legislation, hardly can be taken to have sought to punish merely negligent conduct or honest error of judgment by state officials.   The aim was at grosser violations of basic rights and the supreme law.   Sensible construction of the language, with other considerations, requires this view.   The consistent course of the section's application supports it.

[ Footnote 33 ] See Flack, Adoption of the Fourteenth Amendment (1908) 22-38; Cong. Globe, 39th Cong., 1st Sess., 474-607, 1151 ff.

Senator Davis of Kentucky said that 'this short bill repeals all the penal laws of the States. ... The cases ... the ... bill would bring up every day in the United States would be as numerous as the passing minutes.   The result would be to utterly subvert our Government. ...' Cong. Globe, 39th Cong., 1st Sess., 598.

[ Footnote 34 ] Cf. note 8.

[ Footnote 1 ] Iowa-Des Moines Nat. Bank v. Bennett, supra, illustrates the situation where there can be no doubt that the action complained of was the action of a State.   That case came here from a State court as the ultimate voice of State law authenticating the alleged illegal action as the law of the State.   Cases of which Lane v. Wilson, 307 U.S. 268 , 59 S.Ct. 872, is an illustration are also to be differentiated.   In that case election officials discriminated illegally against Negroes not in defiance of a State statute but under its authority.

~~~~~~~~~~~~~

In the United States Court of Appeals For the Seventh Circuit

No. 99-3727

Eyrle S. Hilton, IV,

Plaintiff-Appellant,

v.

City of Wheeling, et al.,

Defendants-Appellees.

Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 99 C 860--Charles P. Kocoras, Judge.

Argued March 27, 2000 -- Decided April 20, 2000

Before Posner, Chief Judge, and Flaum and Williams, Circuit Judges.

Posner, Chief Judge. Eyrle Stuart Hilton, IV sued the Village of Wheeling (a Chicago suburb) and members of its police force (plus two social workers employed by the Village) for injunctive relief and damages, alleging violations of his constitutional rights to petition the government for redress of grievances and to enjoy the equal protection of the laws. 42 U.S.C. sec. 1983. The district court granted summary judgment for the defendants.

For the last seven years Hilton and his neighbors in an apartment complex in a blue- collar district of Wheeling have been locked in a feud that began when Hilton was seen beating a Rottweiler puppy (appropriately named "Rommel") with what a neighbor who called the police described as a baseball bat, though Hilton claims that it was merely a rawhide chew stick. When the police arrived he explained that he had broken his arm (Hilton's arm, not the dog's) beating Rommel the previous evening. Hilton was cited for cruelty to animals and fined $500. The subsequent history of Rommel is interesting, though perhaps not strictly germane. Hilton tired of Rommel, took him to a veterinarian, and told the veterinarian to kill the dog. The vet refused, saying that the dog was healthy (Hilton's savage beatings had failed to injure Rommel) and that he wanted to put him up for adoption. Hilton agreed, but later decided he wanted Rommel back, and when he could not get him back protested at an open hearing of the Wheeling village council, dragging the empty leash behind him to punctuate his plea.

Since the initial contretemps with his neighbors over Rommel, Hilton has been cited or arrested some fifteen times by the Wheeling police on neighbors' complaints for such transgressions as disorderly conduct, battery, and violating noise ordinances by yelling or by playing his stereo too loud. Hilton does not deny that there was probable cause for each of these arrests or citations. His argument rather is that the police have not been evenhanded in arbitrating, as it were, his feud with his neighbors. He has complained to the police about them many times. One neighbor, he complained, had kicked and broken his door. Another had thrown a rock at his house. Others had made loud noise. One called him an "idiot" in front of a police officer, which he describes as "verbal harassment." And so on. The police responded to all these complaints--they have responded some eighty times over the past seven years to complaints arising out of the feud. But only once have they taken any action against a neighbor complained of by Hilton. That was when he complained to them that a neighbor's dog was barking loudly--and the police cited him for disorderly conduct as well as the neighbor. They have enforced the law one-sidedly.

The right to petition the government for redress of grievances is found in the First Amendment to the Constitution but has been held to be enforceable against the states by virtue of the due process clause of the Fourteenth Amendment. Edwards v. South Carolina, 372 U.S. 229, 235 (1963); Grossbaum v. Indianapolis-Marion County Building Authority, 100 F.3d 1287, 1294 n. 5 (7th Cir. 1996). The right (on which see McDonald v. Smith, 472 U.S. 479, 482-85 (1985)) has never been understood to be a right to police assistance, or for that matter to any governmental assistance, services, or largesse. As the Supreme Court held in DeShaney v. Winnebago County Dept. of Social Services, 489 U.S. 189, 195-97 (1989), and we have repeated many times, the Constitution, insofar as it creates or protects liberties, is (with immaterial exceptions) a charter of negative liberties. River Park, Inc. v. City of Highland Park, 23 F.3d 164, 166 (7th Cir. 1994); K.H. Through Murphy v. Morgan, 914 F.2d 846, 848-49 (7th Cir. 1990); Jackson v. City of Joliet, 715 F.2d 1200, 1203-04 (7th Cir. 1983); Bowers v. DeVito, 686 F.2d 616, 618 (7th Cir. 1982); Pinder v. Johnson, 54 F.3d 1169, 1174 (4th Cir. 1995) (en banc); Alston v. Redman, 34 F.3d 1237, 1247 (3d Cir. 1994); David P. Currie, "Positive and Negative Constitutional Rights," 53 U. Chi. L. Rev. 864 (1986). It creates areas in which the government has to let people alone; it does not entitle them to demand services, such as police protection.

The reasons are historical, Jackson v. City of Joliet, supra, 715 F.2d at 1203, but also practical: it is not a feasible undertaking for the federal courts to direct the allocation of public resources to particular public services. So while the government may not interfere with the right to petition, California Motor Transport Co. v. Trucking Unlimited, 404 U.S. 508, 510 (1972); Harrell v. Cook, 169 F.3d 428, 432 (7th Cir. 1999); Vasquez v. Hernandez, 60 F.3d 325, 328 (7th Cir. 1995), it need not grant the petition, no matter how meritorious it is. Cf. Linda R.S. v. Richard D., 410 U.S. 614 (1973). Nor, by the way, does the right to petition for redress of grievances imply a duty of the government to make every government employee a petition receiver. Although we cannot find a case on the point (there are few cases construing the right-to-petition clause), we think it plain that the right is merely a right to petition the appropriate government entity, in this case the local prosecutor rather than the police on the beat. We point this out to remind Mr. Hilton that he may have other avenues of redress.

A complaint of unequal police protection in violation of the equal protection clause is less easily disposed of. On the one hand, the clause, concerned as it is with equal treatment rather than with establishing entitlements to some minimum of government services, does not entitle a person to adequate, or indeed to any, police protection. On the other hand, selective withdrawal of police protection, as when the Southern states during the Reconstruction era refused to give police protection to their black citizens, is the prototypical denial of equal protection. Slaughter-House Cases, 83 U.S. (16 Wall.) 36, 70 (1873); David P. Currie, The Constitution in the Supreme Court: The First Hundred Years 349 (1985). Hilton, and so far as appears his neighbors, are all white; there is no suggestion that he is being discriminated against because of his race, religion, gender, or some other attribute that defines a group traditionally protected by the equal protection clause. But now that the Supreme Court has affirmed our decision in Olech v. Village of Willowbrook, 160 F.3d 386 (7th Cir. 1998), aff'd, 120 S. Ct. 1073 (2000) (per curiam), we know that a person doesn't have to be a member of a protected group to invoke the clause. If the police decided to withdraw all protection from Hilton out of sheer malice, or because they had been bribed by his neighbors, he would state a claim under Olech. See also Esmail v. Macrane, 53 F.3d 176 (7th Cir. 1995), and other cases cited at 160 F.3d 387; Forseth v. Village of Sussex, 199 F.3d 363, 371 (7th Cir. 2000); Levenstein v. Salafsky, 164 F.3d 345, 352 (7th Cir. 1998); cf. Friedrich Duerrenmatt, The Visit. But there is no suggestion of this. For reasons that Hilton has not attempted to discover, the police exercised the broad discretion that custom gives them in enforcing minor public nuisance laws, in favor of the neighbors. For all we know, they did so simply because the neighbors were always in the right and Hilton always in the wrong. But maybe not; maybe the Wheeling police are inept, or have been deceived by the neighbors. It doesn't matter; what matters is the absence of evidence of an improper motive.

The role of motive is left unclear by the Supreme Court's decision. On the one hand the Court recited the standard formula that the equal protection clause forbids intentional differences in treatment for which there is no rational basis. On the other hand it said that the claim that the difference in treatment was "irrational and wholly arbitrary" (emphasis added) was sufficient and that the Court was not reaching our "alternative theory of 'subjective ill will.'" 120 S. Ct. at 1075. If a merely unexplained difference in police treatment of similar complaints made by different people established a prima facie case of denial of equal protection of the laws, the federal courts would be drawn deep into the local enforcement of petty state and local laws. Repeating what we said in our opinion in Olech, and Justice Breyer in his concurring opinion in the Supreme Court, 120 S. Ct. at 1075, we gloss "no rational basis" in the unusual setting of "class of one" equal protection cases to mean that to make out a prima facie case the plaintiff must present evidence that the defendant deliberately sought to deprive him of the equal protection of the laws for reasons of a personal nature unrelated to the duties of the defendant's position. We described the class of equal protection cases illustrated by Olech as "vindictive action" cases and said that they require "proof that the cause of the differential treatment of which the plaintiff complains was a totally illegitimate animus toward the plaintiff by the defendant." 160 F.3d at 388. No evidence of such an animus was presented in this case.

Amplifying our earlier point about other remedies, we note that if the neighbors have committed torts against Hilton, he has civil remedies under state law. He has no remedy under the U.S. Constitution.

Affirmed.

~~~~~~~~~~~~~~~

Whitton v. State of California

Court of Appeal of California, Second Appellate District, Division Two

October 30, 1979

Civ. No. 54273

98 Cal. App. 3d 235

WENDY J. J. WHITTON et al., Plaintiffs and Appellants, v. THE STATE OF CALIFORNIA et al., Defendants and Respondents

Subsequent History:

A petition for a rehearing was denied November 29, 1979, and the opinion was modified to read as printed above. Appellants' petition for a hearing by the Supreme Court was denied January 17, 1980. Bird, C. J., was of the opinion that the petition should be granted.

Prior History:

Superior Court of Santa Barbara County, No. 108238, J. Kelly Steele, Judge. +Link to the text of the note

CALIFORNIA OFFICIAL REPORTS HEADNOTES
Classified to California Digest of Official Reports, 3d Series

CA(1) (1) Negligence § 94—Actions—Questions of Law and Fact—Foreseeability of Harm—To Person Stopped by Highway Patrol Officers.

--In an action against the state by a motorist who was injured after being pulled over to the shoulder of a freeway for speeding by highway patrol officers, when a drunken driver hit the rear of the patrol car, the trial court properly denied plaintiffs' motion for judgment notwithstanding the jury's verdict in favor of defendant, where substantial evidence supported the jury's finding that the officers were not negligent in any respect to plaintiffs. Plaintiffs produced no evidence that the officers knew or in the exercise of due care should have known of any particular danger of being struck by a drunken driver at the particular location, and there is no basis for the imposition of any sort of absolute liability for injuries occasioned by the acts of third persons during an officer's proper performance of his duties.

CA(2) (2) Negligence § 107—Actions—Instructions—Exercise of Care—Right to Assume Others Will Exercise Care.

--In an action against the state by a motorist who was injured after being pulled over to the shoulder of a freeway for speeding by highway patrol officers, when a drunken driver hit the rear of the patrol car, the trial court did not err in instructing the jury that it is the right of a person exercising ordinary care to assume that every other person will perform his duty and obey the law, and that in the absence of reasonable cause for thinking otherwise, it is not negligence to fail to anticipate an accident which can be occasioned only by a violation of law or duty by another person. The instruction was a correct statement of the law applicable to the facts in evidence and it did not foreclose plaintiff from presenting and having considered any evidence which she might have had concerning the actual knowledge or reasonable opportunity of the officers to learn facts which would lead them to believe that an accident would happen at the particular location.

CA(3) (3) Trial § 83—Instructions to Jury—Applicability of Instructions—To Evidence.

--Instructions are proper when there is evidence which, if believed by the jury, applies to the set of facts recited in such instructions.

CA(4) (4) Negligence § 107—Actions—Instructions—Exercise of Care—Right to Assume Other Persons Possess Normal Intelligence, Sight and Hearing.

--In an action against the state by a motorist who was injured after being pulled over to the shoulder of a freeway for speeding by highway patrol officers, when a drunken driver hit the rear of the patrol car, the trial court did not err in instructing the jury that, in the absence of reasonable cause for thinking otherwise, a person who is exercising ordinary care has a right to assume that other persons are ordinarily intelligent and possessed of normal sight and hearing. The instruction was applicable to the facts in evidence and applied equally to the conduct of both plaintiff and the officers. It related to what the law says they could expect relative to the conduct of each other as well as to the conduct of the third party.

CA(5) (5) Negligence § 107—Actions—Instructions—Exercise of Care—Avoidance of Danger to Self and Others.

--In an action against the state by a motorist who was injured after being pulled over to the shoulder of a freeway for speeding by highway patrol officers, when a drunken driver hit the rear of the patrol car, the trial court did not err in instructing the jury that it is the duty of every person using a public street or highway, whether as a pedestrian or as a driver of a vehicle, to exercise ordinary care at all times to avoid placing himself or others in danger and to use like care to avoid an accident from which an injury may result. Though the instruction may be particularly applicable to cases involving pedestrians, it contained nothing so complex or inapplicable to the facts and circumstances of the case before the court as to make it confusing. It properly referred and applied to plaintiff's conduct at a time when she was either standing or moving about the scene of the stop. Whether she was free to act or to move about on her own initiative or was a captive at a particular site or place of danger and whether she had any freedom to ask or suggest a move to a safer location, were questions of fact for the jury to determine.

Counsel: Boccardo, Lull, Niland & Bell and Edward J. Niland for Plaintiffs and Appellants.

McDonald, Harmon & Granieri and George McDonald for Defendants and Respondents.

Judges: Opinion by Beach, J., with Roth, P. J, and Fleming, J., concurring.

Opinion by: BEACH

Opinion

Wendy J. J. Whitton (appellant) and her father, Frank Whitton, sued the State of California for personal injuries sustained by Wendy and for damage to her father's car in an accident that occurred January 12, 1975. Wendy had been pulled over by California Highway Patrol (CHP) officers for speeding. A drunken driver (McKay) later hit the CHP vehicle from the rear, and Wendy ended up pinned between her own vehicle and the CHP vehicle. Her location and that of the CHP officers prior to the impact by the drunken driver elicited much contradictory testimony at trial. The jury entered a verdict for defendant State of California. Wendy appeals from the judgment and from the trial court's denial of her motion for judgment notwithstanding the verdict. 1Link to the text of the note

Facts:

Appellant and Charmaine Severe were on their way to an acquaintance's home after attending a Linda Ronstadt concert in Santa Barbara. CHP Officers Fix and Hunt observed them speeding on Highway 101; Officer Hunt estimated that appellant was driving 65 miles per hour at one point. The CHP vehicle displayed red lights; appellant pulled off the highway onto the improved shoulder; and the CHP vehicle stopped approximately 15 feet behind her. The positioning of the vehicles and the alleged lack of lighting on the Highway Patrol vehicle were urged as bases of finding respondent negligent at trial. On appeal, however, those grounds are not discussed; appellant relies only on her contention that the officers put her person physically in a zone of danger.

Officer Fix talked to appellant about her speeding violation. Officer Hunt called Fix's attention to the bald left rear tire of appellant's vehicle. Officer Fix then went back to appellant and told her about the tire; she said that she knew it was bad but that her dad owned the car and had not gotten around to changing it. At that time Officer Fix detected alcohol on her breath so asked appellant to get out of the car and directed her to the rear of the Volkswagen.

Officer Fix conducted various sobriety tests such as asking appellant to state the alphabet and to count. Appellant did satisfactorily on the tests. Officer Fix was giving appellant directions on how to get to her acquaintance's address when the accident took place. Officers Fix and Hunt testified that at the time of initial impact, appellant was on the dirt side of the road, not between the vehicles on the paved shoulder of the highway.

The drunken driver ran his van into the CHP vehicle at a speed of about 45 to 50 miles per hour.

In the opinion of respondent's collision analyst, Arnold Siegel, the right hand front door of the CHP vehicle, which had been left open for proper police reasons, started to close when the van struck the CHP vehicle. However, the B-post was warped and twisted by the impact so that the door could not close. Instead the door started to swing back rapidly. Officer Fix took the first impact and hit Miss Severe. Fix eventually struck Hunt, knocking Officer Hunt 50-60 feet. The impact caused Officer Fix to go toward the fence; Hunt and Severe to go toward the southwest; and appellant, toward the paved shoulder area. Siegel also testified an alternative, possible sequence was that the door directly struck appellant. It is undisputed that the crash ended with appellant between her own car and the CHP vehicle and she sustained painful, severe injuries.

According to appellant and Miss Severe, appellant was standing between the two cars at the time of impact. Dr. Hahne, appellant's consulting engineer, testified that she could not have been injured in the way she was injured without being between the two cars right before the impact. Mr. Siegel, however, testified that if the accident had occurred in the way appellant claims, she would have sustained more injuries and there would have been imprints on the car.

Valerie Streit, with whom Miss Severe stayed while she was testifying, cast doubts upon Miss Severe's credibility. She testified that Charmaine Severe's air fare was partly paid by appellant's attorney, while Charmaine Severe testified that she believed her mother paid for her air fare. In addition, she testified that appellant told her Charmaine would be taken care of until she was 21, would have clothes and a car and would be taken care of with a sum of money from the case. Miss Streit warned Charmaine about perjury, and Charmaine said if she got the right amount of money, she would go along with the story. Charmaine told Miss Streit that her story was so air tight nobody could do anything about it.

Contentions on Appeal:

    1. Since the evidence conclusively established that respondent's agents had placed appellant in a zone of danger, thereby improperly exposing her to a foreseeable risk of harm, the trial court erred in denying appellant's motion for judgment notwithstanding the verdict, and the judgment in favor of respondent is not supported by the evidence and should be reversed.

    2. The trial court erred in instructing the jury in terms of BAJI No. 3.13 that it is not negligent to fail to anticipate an accident that can be occasioned only by a violation of law or duty by another person.

    3. The trial court erred in instructing the jury in terms of BAJI No. 3.14 on the right to assume normal faculties.

    4. The trial court erred in instructing the jury in terms of BAJI No. 5.50 that it is the duty of a pedestrian to exercise ordinary care at all times to avoid placing himself in danger and to use like care to avoid an accident for which injury might result.

Discussion:

1. Substantial evidence supports the verdict.

Appellant contends that the judgment is not supported by the evidence and therefore she is entitled to judgment notwithstanding the verdict. She argues that the CHP officer has a duty to exercise reasonable care to protect a motorist and that in the case at bench she was placed in a zone of danger by the officers. She does not rely on the principal trial theory that she was placed between the two cars but instead argues that the officers should not have allowed her to stand in the area where the motorist could be injured by any part of the patrol car if the foreseeable rear-end collision took place. We disagree.

Whether the officers acted in a reasonable manner, given the circumstances of the stop in the case at bench, is a question of fact to be decided by the jury. ( Mann v. State of California, 70 Cal.App.3d 773, 780-781 [139 Cal.Rptr. 82].) The officers need not exercise perfect judgment. Their duty is to perform their official duties in a reasonable manner.

In deciding whether the officers acted reasonably in the case at bench the jury had to consider the several circumstances that affected the performance of that duty. Many of these circumstances were and are beyond the control of the officers. Among them are the following: (1) the location where the traffic offense occurs; (2) the location selected by the motorists for stopping; (3) speeding drivers must be stopped promptly near the place of the traffic infraction. The stop cannot be delayed until an approach to an absolutely safe spot is located; (4) the existence of departmental written guidelines that recommend that stopped female motorists shall be kept close to the more visible open highway and away from the dark areas where there may be obscuring shrubs and bushes; (5) the condition of the roadway to the side of the location; testing of walking and balance usually call for reasonably smooth level surfaces; (6) proper policy procedure requires that patrol car doors be left open to insure quick access to the radio; (7) at a stop such as in this case, certain lighting of the CHP vehicle is required to minimize the "moth effect" i.e., the hazard of attracting other vehicles off the traveled lane; (8) there was uncontradicted expert testimony that it would be negligence to place a person between the two parked vehicles, or to allow her to remain there. Although there was conflicting evidence as to where plaintiff was standing at the moment of impact, the jury's verdict, finding defendants not negligent, indicates that the jury accepted the substantial evidence that the officers did not place or compel plaintiff to remain between the two cars and that she was not at such position at the moment of the impact. There may be other considerations but the foregoing are a few of the items which the evidence at bench concerned.

The jury received evidence on the conduct of the officers and of these circumstances. The jury found that the officers were not negligent in any respect to plaintiff. As an appellate court, we are bound by that finding if it is supported by substantial evidence. The evidence disclosed that the officers followed departmental rules in stopping, questioning, and testing appellant. There was evidence that the discussion properly took place on the untraveled shoulder of the road and to the side of the parked vehicles. The officers properly followed the departmental rules relative to lighting on the CHP vehicle.

The significance of the jury's finding is that it of necessity reduces appellant's contention here to a narrow claim. The heart, if not the sole basis of that contention is that irrespective of the fact that the jury found on solid and substantial evidence that the officers acted reasonably, there is some sort of absolute liability on the part of the CHP officers because any stop on the shoulder of a highway carries a risk of harm that a drunken driver will crash into the stopped vehicles. This contention seeks nothing less than that California adopt a liability-extending doctrine of "risk in the air." We are not persuaded that this is or should be the law.

It cannot be said that the officers in this case were negligent as a matter of law, simply because they stopped the speeding motorist at this location and inquired as to her driving ability. The fact that a possibility existed that the vehicles might be hit by a drunken driver did not change the situation and create a new responsibility on the part of the officers as insurers of the motorists' safety from drunken drivers.

The fact that a speeding motorist is stopped by a highway patrolman whose duty it is to enforce the vehicular laws does not clothe the motorist with some guarantee that the highway officers will make or can make the place of stop totally free from danger. The relationship of CHP officer and stopped motorist does not impose on the officer a higher duty, such as guardian or guarantor, against a hazard no more known to occur or foreseeable to the officer than to any other user of the highway. Absent some evidence of the officer's actual knowledge of some history that at that particular place and at that particular time an accident is likely to occur, or that a drunken driver is likely to strike the vehicles, it is unjust to charge the officer with special foreseeability of such events. That hazard is as known to users of the freeways as it is to the officers and cannot be eliminated. Appellant presented no evidence and has demonstrated no reason for such a rule of almost absolute liability.

There was nothing produced in evidence and nothing has been explained here which demonstrates why the fortuitous event of a drunken driver hitting the parked vehicles should make the officer automatically liable. Irrespective of this shortcoming in her case, appellant continues to argue that the drunken driver's collision was foreseeable. This is not the foreseeability upon which the law of negligence is based. The conduct of the respondents was not the cause-in-fact or the substantial factor in law in bringing about the harm to the plaintiff. When the law says a person substantially contributes to the injury, the law is dealing with responsibility based on reasonable expectations and a common-sense approach to fault not physics. (Prosser, Torts (4th ed. 1971) § 44, p. 271; compare Bigbee v. Superior Court, 93 Cal.App.3d 451 [155 Cal.Rptr. 545].) Therefore, even if the likelihood of being hit while using or being parked at or near a freeway possibly can be calculated in terms of mathematical probabilities, such mathematic computation is immaterial.

Bigbee held that a plaintiff pleaded a cause of action by alleging that defendant knew or in the exercise of reasonable care should have known of the danger to plaintiff of being hit by an automobile driven by a third party even if carelessly driven. By contrast at bench, upon trial appellant produced no evidence that these officers knew or in the exercise of due care should have known of any particular danger of being struck by a drunken driver at this particular location.

In Schrimscher v. Bryson, 58 Cal.App.3d 660 [130 Cal.Rptr. 125], we held that the subsequent act of a drunken driver (third party) striking the CHP vehicle parked off the shoulder and injuring the highway patrol officer, was an intervening act to the antecedent negligence of the defendant who originally caused the officer to be at that location. At bench the only conduct to which appellant now points as constituting negligence by the officers, is the claim that the officers should have foreseen that a drunken driver might hit the parked vehicle. As we explained in Schrimscher v. Bryson, supra, such conduct is not as a matter of law reasonably foreseeable. The drunken driver's "conduct, which itself was criminal in nature, was not a natural or ordinary consequence of the situation created by defendant nor was the foreseeability of the likelihood of that conduct one of the factors contributing to the negligent character of defendant's conduct." ( Schrimscher v. Bryson, supra, at pp. 664-665.) Comparison of that case to the one at bench illustrates the need to apply the same rule here. There the injured officer was denied recovery. Yet he was performing his lawful duty. He had stopped to investigate an accident caused by the negligent driving of the first motorist. To deny the officer the right to recover when he is injured in the performance of his duty, but on the other hand to impose liability on the officer for anyone else who might be hurt under the same circumstances not only would be unfair but would make shambles of whatever small measure of guidance remains in the doctrine of duty in the field of tort law.

In summary, when an officer stops a motorist on the shoulder of the highway and allows the motorist to remain in or near the area, such officer is not negligent simply because there is a possibility that a drunken driver might collide with such vehicles parked on the shoulder and off the traveled lane. All possibilities of risk even if "foreseeable" in the abstract as possibilities cannot be eliminated. There was no evidence in the case at bench that any of the risks to plaintiff, and which are common to all users of the public area, was increased by any negligent conduct on the part of respondent. Negligence seldom, if ever, is a pure question of law. It most always is a question of fact to be determined by the fact finder, here the jury. The jury here found in favor of defendants. The trial court did not err in denying the motion for judgment notwithstanding the verdict.

2. The trial court did not err in instructing the jury in terms of BAJI No. 3.13.

Appellant contends that the trial court erred in instructing the jury pursuant to BAJI No. 3.13, which provides: "Every person who, himself, is exercising ordinary care, has a right to assume that every other person will perform his duty and obey the law, and in the absence of reasonable cause for thinking otherwise, it is not negligence for such a person to fail to anticipate an accident which can be occasioned only by a violation of law or duty by another person." The instruction was originally requested by both appellant and respondent but was later withdrawn by appellant.

Appellant contends that this instruction was misleading, confusing and improper in that the jury could then believe the officers were not negligent in failing to anticipate McKay's drunken behavior even though there was a great deal of testimony regarding the foreseeability of that type of risk. Appellant relies on cases such as Levy-Zentner Co. v. Southern Pac. Transportation Co., 74 Cal.App.3d 762, 780-782 [142 Cal.Rptr. 1], which involved foreseeability of unlawful behavior.

The giving of instruction BAJI No. 3.13 was not error. It was a correct statement of the law applicable to the facts in evidence. Appellant's arguments relative to this instruction are but a variation on her theme of foreseeability of the drunken driver's act. Our discussion above applies here and in effect answers appellant's contentions.

The jury instruction applies to two aspects of the officers' duty towards appellant. (1) They must exercise ordinary care in their conduct, and (2) they must not have any reasonable cause to believe an accident will likely occur absent the misconduct of some third person. The second part of the instruction is a form of describing the rule of foreseeability.

We have explained earlier in this opinion that there is no duty to foresee a collision occasioned by the criminal conduct of a third party drunken driver. Thus there is no threshold question whether the failure to anticipate such act is a failure to "exercise ordinary care." It is not. Additionally, there was ample evidence that the officers' conduct at the scene was reasonable, based on evidence of the standards established by the department and also based on common sense ideas of how persons should act to avoid harm under such circumstances. Therefore, neither officer could be automatically deprived of the benefit of having his conduct tested under the instruction. The evidence disclosed that both officers fit the description of a "person who himself is exercising ordinary care." As such the evidence disclosed they were entitled to the benefit of the law as contained in the instruction and were entitled to have the jury so informed. They were entitled to assume the reasonable safety of the scene of the traffic stop even though an accident could possibly occur but was not likely or probable unless some third party violated the law.

The second part of the instruction did not foreclose appellant from presenting and having considered any evidence which she might have had concerning the actual knowledge or reasonable opportunity of the officers to learn facts which would lead them to believe that an accident would happen at that scene. The real heart of appellant's problem is that she produced no evidence of such facts known to the officers. In this respect the case at bench differs entirely from Levy-Zentner.

Instructions are proper where there is evidence which, if believed by the jury, applies to the set of facts recited in such instruction and will support the giving of such instruction. The language of Levy-Zentner Co., v. Southern Pac. Transportation Co., supra, 74 Cal.App.3d 762, does not apply to the facts of the case at bench. The holding of Levy-Zentner must be restricted to the type of facts present in Levy-Zentner. If there is evidence on both sides of the question as to whether the conduct of a third person is or is not foreseeable, the jury instruction is correct. Its application or effect will depend on the finding of the jury as to whether the act of the third person should have been anticipated or foreseen. Levy-Zentner does not hold that BAJI No. 3.13 is inappropriate to a case such as that at bench. Levy-Zentner merely held that the refusal to give BAJI No. 3.13 was not in error in that particular case because the instruction was inappropriate in light of the unrefuted evidence that there defendants foresaw the specific acts of the third persons. There the defendants knew that hoboes and transients and other trespassers had misused defendants' premises and that defendants knew of the dangerous condition that existed at their premises and that the dangerous condition created a high risk of fire. There was uncontroverted evidence of a combination of knowledge of the dangerous condition, knowledge of the continued trespass and misuse of the premises and the dangerous conditions, and failure to correct the condition, although having the opportunity to do so. All of this combined in Levy-Zentner to convince the appellate court that giving the instruction would have been inappropriate because unsupported by any evidence of defendants' lack of knowledge of the past and continuing unlawful acts of the third party. Irrespective of the strong dictum therein that BAJI No. 3.13 should not have been given, we read Levy-Zentner as holding only that in that particular case the failure to give the instruction was not prejudicial error under the facts disclosed by the evidence.

3. The trial court did not err in instructing in terms of BAJI No. 3.14.

Appellant contends that the trial court erred in instructing the jury pursuant to BAJI No. 3.14, which provides: "In the absence of reasonable cause for thinking otherwise, a person who himself is exercising ordinary care has a right to assume that other persons are ordinarily intelligent and possessed of normal sight and hearing." Appellant contends that this instruction magnifies the alleged error in instructing with BAJI No. 3.13. We disagree and hold the giving of this instruction was proper. Our discussion relative to BAJI No. 3.13 applies to this.

In addition, this instruction, as well as BAJI No. 5.50 which we discuss below, applies equally to the conduct of both appellant and respondents. It relates to what the law says they may expect relative to the conduct of each other as well as the conduct of the third party.

4. The trial court did not err in instructing the jury in terms of BAJI No. 5.50.

Appellant's final contention is that the trial court erred in instructing in terms of BAJI No. 5.50, which provides: "It is the duty of every person using a public street or highway, whether as a pedestrian or as a driver of a vehicle, to exercise ordinary care at all times to avoid placing himself or others in danger and to use like care to avoid an accident from which an injury might result." Appellant states that the Use Note to BAJI No. 5.50 provides that the instruction is designed for use where the negligence of a driver and a pedestrian are at issue, not where the negligence of only the driver is an issue. She contends that there is no evidence to support her own negligence and that she was not a "pedestrian" in the sense contemplated by BAJI No. 5.50.

While use notes may help, they are not necessarily controlling. The use of the particular instruction may have been intended and therefore tailored to cases involving pedestrians. However, nothing therein is so complex or inapplicable to the facts and circumstances at bench as to make it confusing. The instruction can well apply to the conduct of either plaintiff or defendant at a scene of an accident during the time that both are walking about the scene of the accident or the stop as well as when one is a vehicle driver and the other a pedestrian. Although it may not have been necessary to reach this instruction, the instruction was proper as it refers and applies to plaintiff's own conduct at a time when she was either standing or moving about the scene of the stop. Whether she was free to act or to move about on her own initiative or whether she was a captive at a particular site or place of danger, was a question of fact for the jury to determine. Similarly, whether she had any freedom to ask or suggest a move to a safer location, if any, was also a question of fact which the jury might have had to reach. The instruction was applicable to plaintiff's own conduct if the jury had been required to reach that question.

If appellant is concerned about contributory negligence and that there was no evidence thereof relative to her conduct, this point is moot. The special jury verdict found the patrolmen were not negligent. Therefore, the jury never reached the issue of appellant's own possible contributory negligence. In any event, appellant's own trial counsel requested several instructions that involved the concept of contributory negligence. Appellant can hardly complain of instructions on contributory negligence when her attorney requested instructions on that same theory. ( Bates v. Newman, 121 Cal.App.2d 800, 808 [264 P.2d 197].) We need not decide whether there was evidence of contributory negligence. Appellant's counsel in effect agreed that contributory negligence was an issue.

The judgment is affirmed.

Footnotes

    +Link to the location of the note in the document

    Retired judge of the superior court sitting under assignment by the Chairperson of the Judicial Council.

    1Link to the location of the note in the document

    By stipulation at trial, the parties agreed to proceed as if Wendy were the sole plaintiff and the State of California the sole defendant.

~~~~~~~~~~~~

Rowland v. Christian

Supreme Court of California

August 8, 1968

S. F. No. 22583

69 Cal. 2d 108

JAMES DAVIS ROWLAND, JR., Plaintiff and Appellant, v. NANCY CHRISTIAN, Defendant and Respondent

Prior History:

APPEAL from a judgment of the Superior Court of the City and County of San Francisco. Byron Arnold, Judge.

Action for damages for personal injuries caused by a defective bathroom fixture in an apartment occupied by defendant.

CALIFORNIA OFFICIAL REPORTS HEADNOTES

CA(1) (1) Judgments—Summary Judgments.

--The summary judgment procedure is drastic and should be used with caution so that it does not become a substitute for an open trial.

CA(2) (2) Id.—Affidavits—Opposing Affidavits—Necessity.

--A defendant who moves for a summary judgment must prevail on the basis of his own affidavits and admissions made by the plaintiff, and unless the defendant's showing is sufficient, there is no burden on the plaintiff to file affidavits showing he has a cause of action or to even file counteraffidavits at all.

CA(3) (3) Id.—Summary Judgments—Hearing and Determination—Issues Precluding Summary Judgment.

--In an action for damages for personal injuries caused by a defective bathroom faucet in an apartment occupied by defendant, a summary judgment for defendant was not supported by the record where defendant's affidavit and plaintiff's admissions showed that plaintiff was a social guest and that he suffered injury when the faucet handle broke, but did not show that the faucet handle crack was obvious or even nonconcealed; and where, without in any way contradicting defendant's affidavit or his own admissions, plaintiff at trial could establish that defendant was aware of the condition and realized or should have realized that it involved an unreasonable risk of harm to plaintiff, that defendant should have expected that plaintiff would not discover the danger, that defendant did not exercise reasonable care to eliminate the danger or warn plaintiff of it, that plaintiff did not know or have reason to know of the danger, and that the crack in the faucet was not obvious and was concealed.

CA(4) (4) Negligence—Basis of Liability.

--Civ. Code, § 1714, providing that everyone is responsible, not only for the result of his wilful acts, but also for an injury occasioned to another by his want of ordinary care or skill in the management of his property or person, except so far as the latter has, wilfully or by the want of ordinary care, brought the injury upon himself, states a civil law and not a common law principle.

CA(5a) (5a) CA(5b) (5b) Id.—Exercise of Care by Owners or Occupants of Real Property.

--The proper test to be applied to the liability of the possessor of land in accordance with Civ. Code, § 1714, relating to responsibility for wilful acts, negligence, and want of ordinary care or skill in the management of property, is whether in the management of his property he has acted as a reasonable man in view of the probability of injury to others; and, although a plaintiff's status as a trespasser, licensee, or invitee may in the light of the facts giving rise to such status have some bearing on the question of liability, the status is not determinative.

CA(6) (6) Id.—Exercise of Care Toward Particular Persons.

--The basic policy of California, set forth by the Legislature in Civ. Code, § 1714, relating to responsibility for wilful acts, negligence, and want of ordinary care or skill in the management of property, is that everyone is responsible for an injury caused to another by his want of ordinary care or skill in the management of his property, and factors which may in particular cases warrant departure from this fundamental principle do not warrant the wholesale immunities resulting from the common law classifications based upon a plaintiff's status as a trespasser, licensee, or invitee.

CA(7) (7) Id.—Exercise of Care by Owners or Occupants of Real Property—Dangerous Condition.

--Where the occupier of land is aware of a concealed condition involving in the absence of precautions an unreasonable risk of harm to those coming in contact with it and is aware that a person on the premises is about to come in contact with it, the trier of fact can reasonably conclude that a failure to warn or to repair the condition constitutes negligence.

Counsel: Jack K. Berman for Plaintiff and Appellant.

Healy & Robinson and John J. Healy for Defendant and Respondent.

Judges: In Bank. Peters, J. Traynor, C. J., Tobriner, J., Mosk, J., and Sullivan, J., concurred. Burke, J., dissents. McComb, J., concurred.

Opinion by: PETERS

Opinion

Plaintiff appeals from a summary judgment for defendant Nancy Christian in this personal injury action.

In his complaint plaintiff alleged that about November 1, 1963, Miss Christian told the lessors of her apartment that the knob of the cold water faucet on the bathroom basin was cracked and should be replaced; that on November 30, 1963, plaintiff entered the apartment at the invitation of Miss Christian; that he was injured while using the bathroom fixtures, suffering severed tendons and nerves of his right hand; and that he has incurred medical and hospital expenses. He further alleged that the bathroom fixtures were dangerous, that Miss Christian was aware of the dangerous condition, and that his injuries were proximately caused by the negligence of Miss Christian. Plaintiff sought recovery of his medical and hospital expenses, loss of wages, damage to his clothing, and $ 100,000 general damages. It does not appear from the complaint whether the crack in the faucet handle was obvious to an ordinary inspection or was concealed.

Miss Christian filed an answer containing a general denial except that she alleged that plaintiff was a social guest and admitted the allegations that she had told the lessors that the faucet was defective and that it should be replaced. Miss Christian also alleged contributory negligence and assumption of the risk. In connection with the defenses, she alleged that plaintiff had failed to use his "eyesight" and knew of the condition of the premises. Apart from these allegations, Miss Christian did not allege whether the crack in the faucet handle was obvious or concealed.

Miss Christian's affidavit in support of the motion for summary judgment alleged facts showing that plaintiff was a social guest in her apartment when, as he was using the bathroom, the porcelain handle of one of the water faucets broke in his hand causing injuries to his hand and that plaintiff had used the bathroom on a prior occasion. In opposition to the motion for summary judgment, plaintiff filed an affidavit stating that immediately prior to the accident he told Miss Christian that he was going to use the bathroom facilities, that she had known for two weeks prior to the accident that the faucet handle that caused injury was cracked, that she warned the manager of the building of the condition, that nothing was done to repair the condition of the handle, that she did not say anything to plaintiff as to the condition of the handle, and that when plaintiff turned off the faucet the handle broke in his hands severing the tendons and medial nerve in his right hand.

The summary judgment procedure is drastic and should be used with caution so that it does not become a substitute for an open trial. This court in two recent cases has stated: "Summary judgment is proper only if the affidavits in support of the moving party would be sufficient to sustain a judgment in his favor . . . and doubts as to the propriety of granting the motion should be resolved in favor of the party opposing the motion." ( Stationers Corp. v. Dun & Bradstreet, Inc., 62 Cal.2d 412, 417 [42 Cal.Rptr. 449, 398 P.2d 785]; Joslin v. Marin Municipal Water Dist., 67 Cal.2d 132, 146-147 [60 Cal.Rptr. 377, 429 P.2d 889].) A defendant who moves for a summary judgment must prevail on the basis of his own affidavits and admissions made by the plaintiff, and unless the defendant's showing is sufficient, there is no burden on the plaintiff to file affidavits showing he has a cause of action or to even file counteraffidavits at all. A summary judgment for defendant has been held improper where his affidavits were conclusionary and did not show that he was entitled to judgment and where the plaintiff did not file any counteraffidavits. ( de Echeguren v. de Echeguren, 210 Cal.App.2d 141, 146-149 [26 Cal.Rptr. 562]; Southern Pac. Co. v. Fish, 166 Cal.App.2d 353, 362 et seq. [333 P.2d 133].)

In the instant case, Miss Christian's affidavit and admissions made by plaintiff show that plaintiff was a social guest and that he suffered injury when the faucet handle broke; they do not show that the faucet handle crack was obvious or even nonconcealed. Without in any way contradicting her affidavit or his own admissions, plaintiff at trial could establish that she was aware of the condition and realized or should have realized that it involved an unreasonable risk of harm to him, that defendant should have expected that he would not discover the danger, that she did not exercise reasonable care to eliminate the danger or warn him of it, and that he did not know or have reason to know of the danger. Plaintiff also could establish, without contradicting Miss Christian's affidavit or his admissions, that the crack was not obvious and was concealed. Under the circumstances, a summary judgment is proper in this case only if, after proof of such facts, a judgment would be required as a matter of law for Miss Christian. The record supports no such conclusion.

Section 1714 of the Civil Code provides: "Every one is responsible, not only for the result of his willful acts, but also for an injury occasioned to another by his want of ordinary care or skill in the management of his property or person, except so far as the latter has, willfully or by want of ordinary care, brought the injury upon himself. . . ." This code section, which has been unchanged in our law since 1872, states a civil law and not a common law principle. ( Fernandez v. Consolidated Fisheries, Inc., 98 Cal.App.2d 91, 96 [219 P.2d 73].)

Nevertheless, some common law judges and commentators have urged that the principle embodied in this code section serves as the foundation of our negligence law. Thus in a concurring opinion, Brett, M. R. in Heaven v. Pender (1883) 11 Q.B.D. 503, 509, states: "whenever one person is by circumstances placed in such a position with regard to another that every one of ordinary sense who did think would at once recognize that if he did not use ordinary care and skill in his own conduct with regard to those circumstances he would cause danger of injury to the person or property of the other, a duty arises to use ordinary care and skill to avoid such danger."

California cases have occasionally stated a similar view: "All persons are required to use ordinary care to prevent others being injured as the result of their conduct." ( Hilyar v. Union Ice Co., 45 Cal.2d 30, 36 [286 P.2d 21]; Warner v. Santa Catalina Island Co., 44 Cal.2d 310, 317 [282 P.2d 12]; see also Green v. General Petroleum Corp., 205 Cal. 328, 333 [270 P. 952, 60 A.L.R. 475]; Perkins v. Blauth, 163 Cal. 782, 786 [127 P. 50]; McCall v. Pacific Mail S. S. Co., 123 Cal. 42, 44 [55 P. 706]; Edler v. Sepulveda Park Apts., 141 Cal.App.2d 675 680 [297 P.2d 508]; Copfer v. Golden, 135 Cal.App.2d 623, 627-628 [288 P.2d 90]; cf. Dillon v. Legg, 68 Cal.2d 728, 734 [69 Cal.Rptr. 72, 441 P.2d 912].) Although it is true that some exceptions have been made to the general principle that a person is liable for injuries caused by his failure to exercise reasonable care in the circumstances, it is clear that in the absence of statutory provision declaring an exception to the fundamental principle enunciated by section 1714 of the Civil Code, no such exception should be made unless clearly supported by public policy. ( Lipman v. Brisbane Elementary School Dist., 55 Cal.2d 224, 229-230 [11 Cal.Rptr. 97, 359 P.2d 465]; Muskopf v. Corning Hospital Dist., 55 Cal.2d 211, 213 et seq. [11 Cal.Rptr. 89, 359 P.2d 457]; Malloy v. Fong, 37 Cal.2d 356, 366 [232 P.2d 241].)

A departure from this fundamental principle involves the balancing of a number of considerations; the major ones are the foreseeability of harm to the plaintiff, the degree of certainty that the plaintiff suffered injury, the closeness of the connection between the defendant's conduct and the injury suffered, the moral blame attached to the defendant's conduct, the policy of preventing future harm, the extent of the burden to the defendant and consequences to the community of imposing a duty to exercise care with resulting liability for breach, and the availability, cost, and prevalence of insurance for the risk involved. (Cf. Schwartz v. Helms Bakery Ltd., 67 Cal.2d 232, 237, fn. 3 [60 Cal.Rptr. 510, 430 P.2d 68]; Hergenrether v. East, 61 Cal.2d 440, 443-445 [39 Cal.Rptr. 4, 393 P.2d 164]; Merrill v. Buck, 58 Cal.2d 552, 561-562 [25 Cal.Rptr. 456, 375 P.2d 304]; Chance v. Lawry's, Inc., 58 Cal.2d 368, 377 [24 Cal.Rptr. 209, 374 P.2d 185]; Lipman v. Brisbane Elementary School Dist., supra, 55 Cal.2d 224, 229-230; Stewart v. Cox, 55 Cal.2d 857, 863 [13 Cal.Rptr. 521, 362 P.2d 345]; Biakanja v. Irving, 49 Cal.2d 647, 650 [320 P.2d 16, 65 A.L.R.2d 1358]; Wright v. Arcade School Dist., 230 Cal.App.2d 272, 278 [40 Cal.Rptr. 812]; Raymond v. Paradise Unified School Dist., 218 Cal.App.2d 1, 8 [31 Cal.Rptr. 847]; Prosser on Torts (3d ed. 1964) pp. 148-151; 2 Harper and James, The Law of Torts (1956) pp. 1052, 1435 et seq.)

One of the areas where this court and other courts have departed from the fundamental concept that a man is liable for injuries caused by his carelessness is with regard to the liability of a possessor of land for injuries to persons who have entered upon that land. It has been suggested that the special rules regarding liability of the possessor of land are due to historical considerations stemming from the high place which land has traditionally held in English and American thought, the dominance and prestige of the landowning class in England during the formative period of the rules governing the possessor's liability, and the heritage of feudalism. (2 Harper and James, The Law of Torts, supra, p. 1432.)

The departure from the fundamental rule of liability for negligence has been accomplished by classifying the plaintiff either as a trespasser, licensee, or invitee and then adopting special rules as to the duty owed by the possessor to each of the classifications. Generally speaking a trespasser is a person who enters or remains upon land of another without a privilege to do so; a licensee is a person like a social guest who is not an invitee and who is privileged to enter or remain upon land by virtue of the possessor's consent, and an invitee is a business visitor who is invited or permitted to enter or remain on the land for a purpose directly or indirectly connected with business dealings between them. ( Oettinger v. Stewart, 24 Cal.2d 133, 136 [148 P.2d 19, 156 A.L.R. 1221].)

Although the invitor owes the invitee a duty to exercise ordinary care to avoid injuring him ( Oettinger v. Stewart, supra, 24 Cal.2d 133, 137; Hinds v. Wheadon, 19 Cal.2d 458, 460-461 [121 P.2d 724]), the general rule is that a trespasser and licensee or social guest are obliged to take the premises as they find them insofar as any alleged defective condition thereon may exist, and that the possessor of the land owes them only the duty of refraining from wanton or willful injury. ( Palmquist v. Mercer, 43 Cal.2d 92, 102 [272 P.2d 26]; see Oettinger v. Stewart, supra, 24 Cal.2d 133, 137 et seq.) The ordinary justification for the general rule severely restricting the occupier's liability to social guests is based on the theory that the guest should not expect special precautions to be made on his account and that if the host does not inspect and maintain his property the guest should not expect this to be done on his account. (See 2 Harper and James, The Law of Torts, supra, p. 1477.)

An increasing regard for human safety has led to a retreat from this position, and an exception to the general rule limiting liability has been made as to active operations where an obligation to exercise reasonable care for the protection of the licensee has been imposed on the occupier of land. ( Oettinger v. Stewart, supra, 24 Cal.2d 133, 138-139 [disapproving contrary cases]; see Rest.2d Torts, § 341; Prosser on Torts, supra, pp. 388-389.) In an apparent attempt to avoid the general rule limiting liability, courts have broadly defined active operations, sometimes giving the term a strained construction in cases involving dangers known to the occupier.

Thus in Hansen v. Richey, 237 Cal.App.2d 475, 481 [46 Cal.Rptr. 909], an action for wrongful death of a drowned youth, the court held that liability could be predicated not upon the maintenance of a dangerous swimming pool but upon negligence "in the active conduct of a party for a large number of youthful guests in the light of knowledge of the dangerous pool." 1Link to the text of the note In Howard v. Howard, 186 Cal.App.2d 622, 625 [9 Cal.Rptr. 311], where plaintiff was injured by slipping on spilled grease, active negligence was found on the ground that the defendant requested the plaintiff to enter the kitchen by a route which he knew would be dangerous and defective and that the defendant failed to warn her of the dangerous condition. (Cf. Anderson v. Anderson, 251 Cal.App.2d 409, 413 [59 Cal.Rptr. 342]; Herold v. P. H. Mathews Paint House, 39 Cal.App. 489, 493-494 [179 P. 414].) In Newman v. Fox West Coast Theatres, 86 Cal.App.2d 428, 431-433 [194 P.2d 706], the plaintiff suffered injuries when she slipped and fell on a dirty washroom floor, and active negligence was found on the ground that there was no water or foreign substances on the washroom floor when plaintiff entered the theater, that the manager of the theater was aware that a dangerous condition was created after plaintiff's entry, that the manager had time to clean up the condition after learning of it, and that he did not do so or warn plaintiff of the condition.

Another exception to the general rule limiting liability has been recognized for cases where the occupier is aware of the dangerous condition, the condition amounts to a concealed trap, and the guest is unaware of the trap. (See Loftus v. Dehail, 133 Cal. 214, 217-218 [65 P. 379]; Anderson v. Anderson, supra, 251 Cal.App.2d 409, 412; Hansen v. Richey, supra, 237 Cal.App.2d 475, 479-480; Huselton v. Underhill, 213 Cal.App.2d 370, 374-376 [28 Cal.Rptr. 822]; Bylling v. Edwards, 193 Cal.App.2d 736, 746-747 [14 Cal.Rptr. 760]; Yazzolino v. Jones, 153 Cal.App.2d 626, 636 [315 P.2d 107]; Ashley v. Jones, 126 Cal.App.2d 328, 332 [271 P.2d 918].) In none of these cases, however, did the court impose liability on the basis of a concealed trap; in some liability was found on another theory, and in others the court concluded that there was no trap. A trap has been defined as a "concealed" danger, a danger with a deceptive appearance of safety. (E.g., Hansen v. Richey, supra, 237 Cal.App.2d 475, 480.) It has also been defined as something akin to a spring gun or steel trap. ( Anderson v. Anderson, supra, 251 Cal.App.2d 409, 412.) In the latter case it is pointed out that the lack of definiteness in the application of the term "trap" to any other situation makes its use argumentative and unsatisfactory.

The cases dealing with the active negligence and the trap exceptions are indicative of the subtleties and confusion which have resulted from application of the common law principles governing the liability of the possessor of land. Similar confusion and complexity exist as to the definitions of trespasser, licensee, and invitee. (See Fernandez v. Consolidated Fisheries, Inc., supra, 98 Cal.App.2d 91, 96.)

In refusing to adopt the rules relating to the liability of a possessor of land for the law of admiralty, the United States Supreme Court stated: "The distinctions which the common law draws between licensee and invitee were inherited from a culture deeply rooted to the land, a culture which traced many of its standards to a heritage of feudalism. In an effort to do justice in an industrialized urban society, with its complex economic and individual relationships, modern common-law courts have found it necessary to formulate increasingly subtle verbal refinements, to create subclassifications among traditional common-law categories, and to delineate fine gradations in the standards of care which the landowner owes to each. Yet even within a single jurisdiction, the classifications and subclassifications bred by the common law have produced confusion and conflict. As new distinctions have been spawned, older ones have become obscured. Through this semantic morass the common law has moved, unevenly and with hesitation, towards 'imposing on owners and occupiers a single duty of reasonable care in all the circumstances.'" (Footnotes omitted.) ( Kermarec v. Compagnie Generale, 358 U.S. 625, 630-631 [3 L.Ed.2d 550, 554-555, 79 S.Ct. 406]; see also Jones v. United States, 362 U.S. 257, 266 [4 L.Ed.2d 697, 705, 80 S.Ct. 725, 78 A.L.R.2d 233]; 2 Harper and James, The Law of Torts, supra, 1430 et seq.; Prosser, Business Visitors and Invitees, 26 Minn.L.Rev. 573; Marsh, The History and Comparative Law of Invitees, Licensees and Trespassers, 69 L.Q.Rev. 182, 359.)

The courts of this state have also recognized the failings of the common law rules relating to the liability of the owner and occupier of land. In refusing to apply the law of invitees, licensees, and trespassers to determine the liability of an independent contractor hired by the occupier, we pointed out that application of those rules was difficult and often abitrary. ( Chance v. Lawry's, Inc., supra , 58 Cal.2d 368, 376-379; cf. Hall v. Barber Door Co., 218 Cal. 412, 419 [23 P.2d 279]; Donnelly v. Hufschmidt, 79 Cal. 74, 75-76 [21 P. 546]; Burke v. Zanes, 193 Cal.App.2d 773, 778 [14 Cal.Rptr. 619].) In refusing to apply the common law rules to a known trespasser on an automobile, the common law rules were characterized as "unrealistic, arbitrary, and inelastic," and it was pointed out that exceedingly fine distinctions had been developed resulting in confusion and that many recent cases have in fact applied the general doctrine of negligence embodied in section 1714 of the Civil Code rather than the rigid common law categories test. ( Fernandez v. Consolidated Fisheries, Inc., supra, 98 Cal.App.2d 91, 96 et seq.) Other cases which have criticized the approach of the common law rules on the basis of the status of the plaintiff with the resulting confusion include Hansen v. Richey, supra, 237 Cal.App.2d 475, 478; Miller v. Desilu Productions, Inc., 204 Cal.App.2d 160, 166 [22 Cal.Rptr. 36]; Hession v. City & County of San Francisco, 122 Cal.App.2d 592, 602 [265 P.2d 542].

There is another fundamental objection to the approach to the question of the possessor's liability on the basis of the common law distinctions based upon the status of the injured party as a trespasser, licensee, or invitee. Complexity can be borne and confusion remedied where the underlying principles governing liability are based upon proper considerations. Whatever may have been the historical justifications for the common law distinctions, it is clear that those distinctions are not justified in the light of our modern society and that the complexity and confusion which has arisen is not due to difficulty in applying the original common law rules -- they are all too easy to apply in their original formulation -- but is due to the attempts to apply just rules in our modern society within the ancient terminology.

Without attempting to labor all of the rules relating to the possessor's liability, it is apparent that the classifications of trespasser, licensee, and invitee, the immunities from liability predicated upon those classifications, and the exceptions to those immunities, often do not reflect the major factors which should determine whether immunity should be conferred upon the possessor of land. Some of those factors, including the closeness of the connection between the injury and the defendant's conduct, the moral blame attached to the defendant's conduct, the policy of preventing future harm, and the prevalence and availability of insurance, bear little, if any, relationship to the classifications of trespasser, licensee and invitee and the existing rules conferring immunity.

Although in general there may be a relationship between the remaining factors and the classifications of trespasser, licensee, and invitee, there are many cases in which no such relationship may exist. Thus, although the foreseeability of harm to an invitee would ordinarily seem greater than the foreseeability of harm to a trespasser, in a particular case the opposite may be true. The same may be said of the issue of certainty of injury. The burden to the defendant and consequences to the community of imposing a duty to exercise care with resulting liability for breach may often be greater with respect to trespassers than with respect to invitees, but it by no means follows that this is true in every case. In many situations, the burden will be the same, i.e., the conduct necessary upon the defendant's part to meet the burden of exercising due care as to invitees will also meet his burden with respect to licensees and trespassers. The last of the major factors, the cost of insurance, will, of course, vary depending upon the rules of liability adopted, but there is no persuasive evidence that applying ordinary principles of negligence law to the land occupier's liability will materially reduce the prevalence of insurance due to increased cost or even substantially increase the cost.

Considerations such as these have led some courts in particular situations to reject the rigid common law classifications and to approach the issue of the duty of the occupier on the basis of ordinary principles of negligence. (E.g., Gould v. DeBeve (D.C. Cir.) 330 F.2d 826, 829-830 [117 App.D.C. 360]; Anderson v. Anderson, supra, 251 Cal.App.2d 409, 413; Taylor v. New Jersey Highway Authority, 22 N.J. 454 [126 A.2d 313, 317, 62 A.L.R.2d 1211]; Scheibel v. Lipton 156 Ohio St. 308 [102 N.E.2d 453, 462-463]; Potts v. Amis, 62 Wn.2d 777 [384 P.2d 825, 830-831]; see Comment (1957) 22 Mo.L.Rev. 186; Note (1958) 12 Rutgers L.Rev. 599.) And the common law distinctions after thorough study have been repudiated by the jurisdiction of their birth. (Occupiers' Liability Act, 1957, 5 and 6 Eliz. 2, ch. 31.)

A man's life or limb does not become less worthy of protection by the law nor a loss less worthy of compensation under the law because he has come upon the land of another without permission or with permission but without a business purpose. Reasonable people do not ordinarily vary their conduct depending upon such matters, and to focus upon the status of the injured party as a trespasser, licensee, or invitee in order to determine the question whether the landowner has a duty of care, is contrary to our modern social mores and humanitarian values. The common law rules obscure rather than illuminate the proper considerations which should govern determination of the question of duty.

It bears repetition that the basic policy of this state set forth by the Legislature in section 1714 of the Civil Code is that everyone is responsible for an injury caused to another by his want of ordinary care or skill in the management of his property. The factors which may in particular cases warrant departure from this fundamental principle do not warrant the wholesale immunities resulting from the common law classifications, and we are satisfied that continued adherence to the common law distinctions can only lead to injustice or, if we are to avoid injustice, further fictions with the resulting complexity and confusion. We decline to follow and perpetuate such rigid classifications. The proper test to be applied to the liability of the possessor of land in accordance with section 1714 of the Civil Code is whether in the management of his property he has acted as a reasonable man in view of the probability of injury to others, and, although the plaintiff's status as a trespasser, licensee, or invitee may in the light of the facts giving rise to such status have some bearing on the question of liability, the status is not determinative.

Once the ancient concepts as to the liability of the occupier of land are stripped away, the status of the plaintiff relegated to its proper place in determining such liability, and ordinary principles of negligence applied, the result in the instant case presents no substantial difficulties. As we have seen, when we view the matters presented on the motion for summary judgment as we must, we must assume defendant Miss Christian was aware that the faucet handle was defective and dangerous, that the defect was not obvious, and that plaintiff was about to come in contact with the defective condition, and under the undisputed facts she neither remedied the condition nor warned plaintiff of it. Where the occupier of land is aware of a concealed condition involving in the absence of precautions an unreasonable risk of harm to those coming in contact with it and is aware that a person on the premises is about to come in contact with it, the trier of fact can reasonably conclude that a failure to warn or to repair the condition constitutes negligence. Whether or not a guest has a right to expect that his host will remedy dangerous conditions on his account, he should reasonably be entitled to rely upon a warning of the dangerous condition so that he, like the host, will be in a position to take special precautions when he comes in contact with it.

It may be noted that by carving further exceptions out of the traditional rules relating to the liability to licensees or social guests, other jurisdictions reach the same result (see Rest.2d Torts, supra, § 342; Annot., Duty of a possessor of land to warn adult licensees of danger (1957) 55 A.L.R.2d 525; 49-55 A.L.R.2d, Later Case Service (1967) 485; but cf. Hansen v. Richey, supra, 237 Cal.App.2d 475, 478-479; Saba v. Jacobs, 130 Cal.App.2d 717, 719 [279 P.2d 826]; Ward v. Oakley Co., 125 Cal.App.2d 840, 844-845 [271 P.2d 536]; Fisher v. General Petroleum Corp., 123 Cal.App.2d 770, 779-780 [267 P.2d 841]), that by continuing to adhere to the strained construction of active negligence or possibly, by applying the trap doctrine the result would be reached on the basis of some California precedents (e.g., Hansen v. Richey, supra, 237 Cal.App.2d 475, 481), and that the result might even be reached by a continued expansion of the definition of the term "invitee" to include all persons invited upon the land who may thereby be led to believe that the host will exercise for their protection the ordinary care of a reasonable man (cf. O'Keefe v. South End Rowing Club, 64 Cal.2d 729, 737-739 [51 Cal.Rptr. 534, 414 P.2d 830, 16 A.L.R.3d 1]). However, to approach the problem in these manners would only add to the confusion, complexity, and fictions which have resulted from the common law distinctions.

The judgment is reversed.

Dissent by: BURKE

Dissent

BURKE, J. I dissent. In determining the liability of the occupier or owner of land for injuries, the distinctions between trespassers, licensees and invitees have been developed and applied by the courts over a period of many years. They supply a reasonable and workable approach to the problems involved, and one which provides the degree of stability and predictability so highly prized in the law. The unfortunate alternative, it appears to me, is the route taken by the majority in their opinion in this case; that such issues are to be decided on a case by case basis under the application of the basic law of negligence, bereft of the guiding principles and precedent which the law has heretofore attached by virtue of the relationship of the parties to one another.

Liability for negligence turns upon whether a duty of care is owed, and if so, the extent thereof. Who can doubt that the corner grocery, the large department store, or the financial institution owes a greater duty of care to one whom it has invited to enter its premises as a prospective customer of its wares or services than it owes to a trespasser seeking to enter after the close of business hours and for a nonbusiness or even an antagonistic purpose? I do not think it unreasonable or unfair that a social guest (classified by the law as a licensee, as was plaintiff here) should be obliged to take the premises in the same condition as his host finds them or permits them to be. Surely a homeowner should not be obliged to hover over his guests with warnings of possible dangers to be found in the condition of the home (e.g., waxed floors, slipping rugs, toys in unexpected places, etc., etc.). Yet today's decision appears to open the door to potentially unlimited liability despite the purpose and circumstances motivating the plaintiff in entering the premises of another, and despite the caveat of the majority that the status of the parties may "have some bearing on the question of liability . . .," whatever the future may show that language to mean.

In my view, it is not a proper function of this court to overturn the learning, wisdom and experience of the past in this field. Sweeping modifications of tort liability law fall more suitably within the domain of the Legislature, before which all affected interests can be heard and which can enact statutes providing uniform standards and guidelines for the future.

I would affirm the judgment for defendant.

Footnotes

1Link to the location of the note in the document

Rather than characterizing the finding of active negligence in Hansen v. Richey, supra, 237 Cal.App.2d 475, 481, as a strained construction of that term perhaps the opinion should be characterized as "an ingenious process of finding active negligence in addition to the known dangerous condition, . . ." (See, Witkin, Summary of Cal. Law (1967 Supp.) Torts, § 255, pp. 535-536.)

~~~~~~~~~~~~~~~

Adams v. City of Fremont

Court of Appeal of California, First Appellate District, Division Two

December 3, 1998, Decided

Nos. A075279, A074965.

68 Cal. App. 4th 243

JOHNETTE MARIE ADAMS et al., Plaintiffs and Respondents, v. CITY OF FREMONT et al., Defendants and Appellants. JOHNETTE MARIE ADAMS et al., Plaintiffs and Appellants, v. CITY OF FREMONT et al., Defendants and Respondents.

Subsequent History:

As Modified on Denial of Rehearing January 4, 1999, Reported at: 1999 Cal. App. LEXIS 1. Review Denied March 24, 1999, Reported at: 1999 Cal. LEXIS 1667.

Prior History:

Superior Court of Alameda County. Super. Ct. No. H-178278-1A. William L. Dunbar, Judge.

CALIFORNIA OFFICIAL REPORTS HEADNOTES
Classified to California Digest of Official Reports

CA(1a) (1a) CA(1b) (1b) Government Tort Liability § 11.2—Liability Arising From Governmental Activities—Law Enforcement—Police Officers' Duty to Prevent Suicide: Law Enforcement Officers § 20—Police—Liabilities.

--In a wrongful death action brought by a decedent's spouse and stepdaughter against a city and a city police officer, alleging that defendants had negligently handled an emergency situation in which the decedent was fatally injured after threatening to commit suicide and refusing to surrender his loaded firearm to police officers, the trial court erred in refusing to grant defendants' motion for nonsuit or directed verdict. Defendants owed plaintiffs no duty of care, under the traditional multifactor duty analysis, to take reasonable steps to prevent the suicide. The relevant public policy considerations militate against imposing a legal duty on police officers to take reasonable steps to prevent a threatened suicide from being carried out. The foreseeability and certainty of harm suffered are factors that favor imposing a duty. The absence of moral blame, the remoteness of the connection between the conduct of the defendants and the harm suffered, the policy of preventing future harm, consequences to the community, the role of law enforcement in society, and the potential detriment to the public in imposing judicial allocation of resources all heavily favor shielding law enforcement personnel from tort liability in instances such as this. Moreover, the social value of protecting the lives of police officers is extremely high.

CA(2a) (2a) CA(2b) (2b) Government Tort Liability § 11.2—Liability Arising From Governmental Activities—Law Enforcement—Police Officers' Duty to Prevent Suicide—Special Relationship: Law Enforcement Officers § 20—Police—Liabilities.

--In a wrongful death action brought by a decedent's spouse and stepdaughter against a city and a city police officer, alleging that defendants had negligently handled an emergency situation in which the decedent was fatally injured after threatening to commit suicide and refusing to surrender his loaded firearm to police officers, the trial court erred in refusing to grant defendants' motion for nonsuit or directed verdict, since plaintiffs failed to demonstrate that the special relationship exception to the public duty rule applied to create a legal duty of care. This narrow exception for unusual police conduct that creates a special relationship between the police officer and an individual member of the public should not be interpreted broadly to include affirmative acts that increase a preexisting harm. A special relationship with a person in peril is not established simply because police officers responded to a call for assistance and took some action at the scene. Moreover, the question of duty must not ignore matters of policy regardless of whether the duty purportedly arises under this exception.

CA(3) (3) Dismissal and Nonsuit § 47—Nonsuit—Hearing and Determination—Evidence: Trial § 116—Taking Case From Jury—Direction of Verdict.

--A defendant is entitled to a nonsuit if the trial court determines that, as a matter of law, the evidence presented by the plaintiff is insufficient to permit a jury to find in his or her favor. In determining whether the plaintiff's evidence is sufficient, the court may not weigh the evidence or consider the credibility of witnesses. Instead, the evidence most favorable to the plaintiff must be accepted as true and conflicting evidence must be disregarded. The court must give to the plaintiff's evidence all of the value to which it is legally entitled, indulging every legitimate inference that may be drawn from the evidence in the plaintiff's favor. A mere scintilla of evidence does not create a conflict for the jury's resolution; there must be substantial evidence to create the necessary conflict. The trial court is governed by the same standard in ruling on a motion for directed verdict.
[See 7 Witkin, Cal. Procedure (4th ed. 1997) Trial, §§ 420, 432.]

CA(4) (4) Dismissal and Nonsuit § 47—Nonsuit—Appeal and Review: Trial § 116—Taking Case From Jury—Direction of Verdict.

--In reviewing the denial of a motion for nonsuit or directed verdict, appellate courts, like trial courts, must evaluate the evidence in the light most favorable to the plaintiff. Reversal of the denial of a motion for nonsuit or directed verdict is only proper when no substantial evidence exists tending to prove each element of the plaintiff's case.

CA(5) (5) Government Tort Liability § 3.2—Grounds for Relief—Legal Duty—As Prerequisite to Determining Applicability of Statutory Immunities: Negligence § 9—Elements of Actionable Negligence—Duty of Care.

--Although related, the concepts of duty and immunity invoke separate analyses. Where no legal duty is found to be owing the injured party, the trial court need not determine if one or more statutory immunities apply so as to insulate a governmental entity and employee from liability. 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.

CA(6) (6) Negligence § 9—Elements of Actionable Negligence—Duty of Care—Statement of Rules.

--Where a legal duty is not created by statute, the question of whether a legal duty exists is analyzed under general principles of tort law. A tort involves a violation of a legal duty, imposed by statute, contract, or otherwise, owed by the defendant to the person injured. Without such a duty, any injury is injury without wrong. Thus, in order to prove facts sufficient to support a finding of negligence, a plaintiff must show that the defendant had a duty to use due care, that he or she breached that duty, and that the breach was the proximate or legal cause of the resulting injury. The existence of a duty of care is a question of law to be determined by the court alone. This is because legal duties are merely conclusory expressions that, in cases of a particular type, liability should be imposed for damage done. Duty is simply a shorthand expression for the sum total of policy considerations favoring a conclusion that the plaintiff is entitled to legal protection.

CA(7) (7) Negligence § 9—Elements of Actionable Negligence—Duty of Care—Determination—Foreseeability—Distinct Roles of Court and Jury.

--Despite superficial similarities, the roles of the court in resolving questions of law and of the jury as fact finder, are separate and distinct. For example, the question of foreseeability is germane to the functions of both the court in determining the presence or absence of a legal duty, and also to the role of the jury in determining whether a legal duty was breached and caused harm to the plaintiff. It is part of the calculus to which a court looks in defining the boundaries of duty. The jury, by contrast, considers foreseeability in two more focused, fact-specific settings. First, the jury may consider the likelihood or foreseeability of injury in determining whether, in fact, the particular defendant's conduct was negligent in the first place. Second, foreseeability may be relevant to the jury's determination of whether the defendant's negligence was a proximate or legal cause of the plaintiff's injury.

CA(8) (8) Evidence § 81—Opinion Testimony—Questions of Law.

--Opinion testimony is inadmissible and irrelevant to adjudging questions of law.

CA(9) (9) Negligence § 9—Elements of Actionable Negligence—Duty of Care—Determination—Multifactor Analysis—Public Entities.

--In determining whether a particular defendant owed a tort duty to a given plaintiff, the court considers the following factors: (1) the foreseeability of harm to the injured party, (2) the degree of certainty that the injured party suffered harm, (3) the closeness of the connection between the defendant's conduct and the injury suffered, (4) the moral blame attached to the defendant's conduct, (5) the policy of preventing future harm, (6) the extent of the burden to the defendant, and (7) the consequences to the community of imposing a duty to exercise care with resulting potential liability. Where a public entity is involved, the court considers the following additional factors: the availability, cost, and prevalence of insurance for the risk involved; the extent of the agency's powers; the role imposed on it by law; and the limitations imposed on it by budget. The court examines this multipart test as it applies to the circumstances before it, exploring the policies endemic to each prong of the standard while remaining mindful of the California Supreme Court's pronouncement that the first policy consideration in duty analysis is the social utility of the activity out of which the injury arises.

CA(10) (10) Negligence § 9—Elements of Actionable Negligence—Duty of Care—Determination—Foreseeability.

--Because the bar of foreseeability is set so low, foreseeability alone is insufficient to create a legal duty to prevent harm.

CA(11) (11) Negligence § 9—Elements of Actionable Negligence—Duty of Care—Determination—Moral Culpability.

--Moral blame has been applied to describe a defendant's culpability in terms of the defendant's state of mind and the inherently harmful nature of the defendant's acts. To avoid redundancy with the other factors considered in determining whether a tort duty existed, the moral blame that attends ordinary negligence is generally not sufficient to tip the balance of these factors in favor of liability. Instead, courts have required a higher degree of moral culpability such as where the defendant (1) intended or planned the harmful result, (2) had actual or constructive knowledge of the harmful consequences of his or her behavior, (3) acted in bad faith or with a reckless indifference to the results of his or her conduct, or (4) engaged in inherently harmful acts.

CA(12) (12) Law Enforcement Officers § 17—Police—Duties—At Scene of Threatened Suicide—Protection of Officers and Other Third Parties.

--Police officers providing assistance at the scene of a threatened suicide must concern themselves with more than simply the safety of the suicidal person. Protection of the physical safety of the police officers and other third parties is paramount.

CA(13) (13) Law Enforcement Officers § 17—Police—Duties—Controlling Conduct of Others.

--Absent a special relationship creating a special duty, the police have no legal duty to control the conduct of others.

Counsel: Farmer & Murphy, George Edson Murphy, Frank J. Torrano, Lepper, Schaefer & Harrington, Gary M. Lepper and Edward N. Schaefer for Defendants and Appellants and for Defendants and Respondents.

DeGoff and Sherman, Victoria J. DeGoff, Richard Sherman, Gwilliam, Ivary, Chiosso, Cavalli & Brewer, J. Gary Gwilliam and James Chiosso for Plaintiffs and Respondents and for Plaintiffs and Appellants.

Judges: Opinion by Ruvolo, J., with Haerle, J., concurring. Concurring opinion by Haerle, J. Dissenting opinion by Kline, P. J.

Opinion by: RUVOLO

Opinion

RUVOLO, J.

I.

Introduction

Appellants City of Fremont and Fremont Police Sergeant Steven Osawa appeal from a jury verdict awarding Patrick Adams's surviving spouse and stepdaughter approximately $ 4 million in this action for wrongful death and negligent infliction of emotional distress. The jury found that City of Fremont police officers negligently handled an emergency situation in which Patrick 1Link to the text of the note was fatally injured after threatening to commit suicide and refusing to surrender his loaded firearm to police officers. 2Link to the text of the note Appellants contend the verdict must be reversed as a matter of law on two major grounds: (1) appellants owed no legal duty of care to Patrick or his family; and (2) appellants were immune from liability under Government Code section 820.2. 3Link to the text of the note Appellants also contend the jury's findings were not supported by substantial evidence and that respondents were not entitled to damages for negligent infliction of emotional distress under a "bystander" theory as a matter of law.

We hold that police officers responding to a crisis involving a person threatening suicide with a loaded firearm have no legal duty under tort law that would expose them to liability if their conduct fails to prevent the threatened suicide from being carried out. The judgment of the trial court is reversed and the trial court is directed to enter a judgment in favor of appellants.

II.

Background

In August 1994, the Estate of Patrick Adams, the decedent's surviving spouse, Johnette Marie Adams, and the decedent's stepdaughter, Gina Fanucchi 4Link to the text of the note (respondents) filed a complaint against the City of Fremont and numerous police officers alleging causes of action for negligence, wrongful death and various intentional torts stemming from the events leading up to Patrick's death. Respondents later amended their complaint to name the City of Fremont and Fremont Police Sergeant Osawa as the sole defendants.

During the four-week trial of respondents' claims, evidence was introduced to support the following facts. Patrick was employed as a nurse at Washington Hospital. He was married to Johnette Marie Adams. Johnette had an adult daughter, Gina, from a previous marriage. Patrick helped raise Gina, and Gina regarded Patrick as her parent.

Patrick periodically went through periods of depression in which he would withdraw and isolate himself. Patrick told Johnette he had been suicidal in the past. Johnette described Patrick as unable to "handle alcohol." When Patrick drank hard liquor, "his behavior would change dramatically." He would become "belligerent" and "argumentative."

Patrick owned a 12-gauge shotgun and a 9-millimeter Beretta handgun. In 1988, Johnette called the police for assistance after Patrick drank too much hard liquor and slapped her in the face. After the police departed, Johnette hid Patrick's firearms in the garage because she knew he had been drinking and was depressed. At some point following the 1988 incident, the firearms were returned to the house.

On April 19, 1993, Patrick, Johnette, Gina, and Gina's fiance, Robert Gholston, attended a family dinner at Johnette's father's house. The purpose of the dinner was to introduce the family to the new girlfriend of Johnette's father. The dinner was tense and uncomfortable. Patrick drank at least two beers and some hard liquor. He became aggressive and argumentative. Gina and Robert drove Patrick and Johnette home at approximately 9:00 p.m.

Once they arrived at their home, Johnette and Patrick argued over Patrick's drinking. Patrick acted like he was "out of control." He broke dishes and swept items off the counter with his hands. Johnette pushed Patrick. Patrick pushed her back, causing her to fall to the floor. Johnette telephoned Gina and asked Gina to pick her up so she could stay at Gina's house. After the telephone call, Patrick grabbed Johnette's hand and led her to the door stating, "You can wait for Gina outside."

Gina and Robert arrived to pick up Johnette at approximately 10:45 p.m. As they started to drive away, Gina became concerned that Patrick might try to drive his van while intoxicated. She asked Robert to return to the house. Robert then tried to speak with Patrick. When he returned to the car, Robert told Johnette and Gina, "We can't leave. . . . I think he's got the gun because he had his hand behind his back when he answered the door."

After discussing the situation, Johnette, Gina, and Robert drove to the corner store and called Patrick on a pay phone. Patrick did not answer. They returned to the residence and walked through the house, calling Patrick's name. Gina saw broken glass, objects on the floor, a shelf broken off the wall, and overturned furniture. Eventually, Johnette found Patrick sitting on a clothes hamper in the dark master bedroom closet. Gina entered the bedroom and asked Patrick, "What's the matter?" and "What's wrong?" Patrick replied, "Just go away. Just leave me alone." When Gina continued to initiate conversation, Patrick discharged a firearm. Gina and Johnette heard the gunshot, but could not see in what direction the gun was pointed when it was fired.

Gina, Johnette, and Robert ran out of the house. Gina testified she did not believe Patrick had fired the gun at her, but was concerned that he might have shot himself. Johnette testified that her first reaction was that Patrick had shot himself. She pulled Gina out of the house because she "didn't want Gina to see that, . . ."

Gina went to a neighbor's house and dialed 911 for assistance. At her mother's insistence, however, Gina hung up before reporting the incident. After further discussion, they decided to telephone the police from a corner store. On their way, they saw two police cars heading toward the Adams's residence. The police dispatcher had traced Gina's 911 call and sent Fremont Police Officers Kevin Moran and Gregory Pipp to the scene. Officer Pipp arrived at 11:01 p.m., and Officer Moran arrived approximately five minutes later.

Johnette testified that she approached Officer Moran and told him her husband had been drinking, he was distraught, he had fired a shot in the house, and he might have wounded himself. 5Link to the text of the note Several other officers arrived to assist at the scene. The dispatcher telephoned the residence several times, but no one answered.

At approximately 11:14 p.m., Sergeant Steven Osawa responded to a radio dispatch describing "a possible suicide with the use of a handgun or attempted suicide with a handgun." When he arrived at the Adams's residence, he assumed the position of "supervisor in charge" for the duration of the evening. Sergeant Osawa had extensive experience and training in the "Special Services Unit," or "SWAT." He had attended basic hostage negotiations school three to four years earlier, but did not consider himself a specialist in the field of negotiations.

Officers Moran and Pipp relayed the information provided by the family to Sergeant Osawa. 6Link to the text of the note Sergeant Osawa requested additional police units and the assistance of a trained negotiator, Officer Sheila Tajima-Shadle. Paramedics and an ambulance were stationed in locations approximately 150 yards away from the residence.

Approximately 15 minutes after Sergeant Osawa's arrival, he decided the police should enter the house for 3 reasons: (1) Patrick might be wounded and in need of medical care; (2) if Patrick was not wounded, to determine his location and the location of the gun Patrick had previously fired in the house; and (3) to disarm Patrick.

Sergeant Osawa sent Officer Moran to find out from the family what guns Patrick had access to and what Patrick's attitudes were toward the police. Sergeant Osawa received the information that Patrick had access to a Beretta 9-millimeter handgun and a 12-gauge shotgun, that he did not particularly like the police, and that he was unlikely to "take [the police officers] on."

Sergeant Osawa testified that he was concerned about the possibility that Patrick would react aggressively or fire on the officers in an attempt to commit "suicide by cop." He took measures to ensure that there were a sufficient number of officers with "superior firepower" at the scene to respond to such possibilities. Sergeant Osawa searched the house with the assistance of three other armed officers. The officers were heavily armed and their weapons were drawn. Sergeant Osawa periodically called out to Patrick, identifying himself as a member of the Fremont Police Department and asking Patrick to come out. Patrick did not respond. The officers found an expended 9-millimeter shell in the master bedroom closet and a live round on the bathroom vanity.

Upon entering the backyard, Osawa again identified himself and called for Patrick to come out with his hands up. Patrick did not respond. Osawa repeated this admonition. There was still no response from Patrick. Finally, Officer Moran found Patrick in the backyard, partially concealed by a large bush. The officers turned a picnic table on its side and kneeled behind it for cover. Sergeant Osawa and Officer Pipp spoke to Patrick for approximately five minutes. Officer Pipp was not a trained specialist in negotiations. The officers called Patrick's name, asked him if he was "okay," and asked him to come out with his hands out and visible. Patrick did not respond.

Sergeant Osawa testified that this lack of response led him to believe Patrick might be wounded. He decided to use a police dog named "Gus" to get a reaction or response from Patrick so the police would know whether Patrick was alive. 7Link to the text of the note He testified that he did not send Officer Tajima-Shadle to accomplish this task because he was concerned that Patrick was armed and might attempt to "engage" her. Gus's handler was Officer Mazzone. As he ran to his car to get Gus, Officer Mazzone saw Officer Tajima-Shadle gathering background information from the family. 8Link to the text of the note Officer Tajima-Shadle asked whether she was needed in the backyard, and Officer Mazzone replied "no" or "not yet." After receiving the proper authorization, Sergeant Holm, the canine coordinator, and Officer Mazzone brought Gus onto the scene.

Sergeant Osawa and Officer Mazzone called out several warnings to Patrick, advising him that they were going to send in a dog if Patrick did not come out. When Patrick remained mute, Mazzone gave Gus a search command. Gus went into the bushes followed by Officers Mazzone and Moran, who had their weapons drawn. As they approached the bushes, the officers observed Patrick sitting on the ground, cradling a gun with both hands, pointed at his own chest. Patrick appeared to be wearing only underpants. Officer Mazzone crouched, brought his gun up and told Patrick to "Freeze" and "Drop the gun." Gus became excited and started barking and wagging his tail. Officer Mazzone gave Gus the command to stop and Gus obeyed.

Patrick told the officers to "Get the fucking dog away from me," and asked "What are you going to do, fucking shoot me?" His speech was slurred. The officers returned to their location behind the picnic table.

The Adams's yard was enclosed and the portion behind Patrick was fenced. Patrolman Lopes was stationed on the other side of the fence in case Patrick tried to leave the yard. Additional officers were stationed in front and inside of the residence.

After Patrick reacted to Gus, Officer Mazzone radioed for the negotiator, Officer Tajima-Shadle, to come to the backyard. Before Officer Tajima-Shadle reached the backyard, Officer Pipp spoke to Patrick while his shotgun was pointed in Patrick's direction.

Officer Pipp testified that he asked Patrick different questions in an effort to establish a rapport, to find out what happened, whether he was injured, and how the incident could be resolved. He asked Patrick a variety of questions, such as "Are you okay? Are you shot? Do you need help? What do you want from this? What can we do? How can we work this out?" Patrick replied with short, terse sentences, repeatedly indicating that he wanted the police to leave. 9Link to the text of the note

At various points during their interactions with Patrick, Sergeant Osawa and Officer Pipp directed Patrick to surrender his weapon. Patrick consistently refused to comply with this direction. Sergeant Osawa testified that if Patrick had surrendered his weapon, and nearby paramedics determined that Patrick was a danger to himself or others, he would have involuntarily committed Patrick to an inpatient psychiatric facility under section 5150 of the Welfare and Institutions Code.

Sergeant Angel and Sergeant Holm took up positions at a bedroom window overlooking the yard with their guns drawn. They could see Patrick and the gun he was holding to his chest.

At 12:07 a.m., Officer Tajima-Shadle entered the backyard and attempted to negotiate with Patrick. She called out his name. Patrick mistook her for Gina and told her to leave in an angry voice. Officer Tajima-Shadle explained that she was Sheila with the Fremont Police Department, not Gina. Patrick replied "Get her the fuck out of here" and became extremely angry and upset.

After negotiations with Officer Tajima-Shadle failed and Patrick's level of agitation increased, Sergeant Osawa testified that he directed Patrolman Lopes to leave his position and evacuate the neighbors because they were at risk of being injured in potential crossfire. Officer Tajima-Shadle moved near Officer Pipp to guide him in communicating with Patrick. She relayed background information to him about Patrick; however, she did not caution Officer Pipp to refrain from any suggestion that Patrick should be transported to Washington Hospital.

Officer Pipp resumed his attempts to communicate with Patrick. Officer Pipp testified that he made statements such as "we can work this out; ask[ing] him to throw the gun out; we don't have to go anywhere; we can sit there if the gun is thrown out; just talk, there's no rush." At one point, he suggested Patrick could be taken to Washington Hospital for assistance.

When Officer Pipp told Patrick the police were not there to hurt him, Patrick replied that he did not intend to hurt the police either. Patrick continually told the officers to leave. Officer Pipp responded they could not leave because that would not be "doing their job." Finally, Officer Pipp, Sergeant Osawa, Officer Tajima-Shadle, Officer Mazzone, and Officer Moran all testified that Patrick told the officers "I can make you leave" or "I can do something to make you leave." This statement was followed by gunfire originating from the bush area. At this point in time, a total of eight armed police officers were either in the Adams's backyard or at the window facing Patrick. Believing Patrick had fired at them, the officers fired at Patrick. 10Link to the text of the note These shots occurred at 12:10 a.m., approximately one hour and nine minutes after the first police officer arrived on the scene. After the shooting, police officers retrieved Patrick's gun and pulled him out of the bushes. Paramedics attended to Patrick 11Link to the text of the note and he was taken to Washington Hospital, where he was pronounced dead at 12:37 a.m.

Patrick suffered from numerous bullet wounds, including a self-inflicted wound that had penetrated his heart and liver. On direct examination, Dr. Sharon Van Meter testified that an individual suffering from Patrick's self-inflicted chest wound "might well not survive for fifteen minutes." On cross-examination, she clarified that an individual suffering from such a wound will bleed "very seriously. So he might live five minutes, he might lapse into a coma and live a little bit longer, but certainly five--ten minutes probably max[imum]." While Dr. Van Meter could not "say absolutely" that Patrick would not have survived longer than 10 minutes, she testified that "it could be eleven, but it would be unlikely that he would live say half an hour without medical treatment." When asked whether he could have lived as long as half an hour, she replied, "No, I think it's unlikely that he would."

Johnette and Gina were standing approximately 60 yards from the Adams's backyard while the police were negotiating with Patrick and at the time the guns were fired. When Johnette learned Patrick had been discovered in the backyard, she tried to run to him. A police officer restrained her.

From their location, Johnette and Gina heard the gunfire. They could not, however, see what was taking place in the backyard. Gina testified that she "knew" Patrick had been shot because "I just--I figured that many police officers in there with one man I just knew that it was him, . . ." Johnette testified she felt very strongly that Patrick had been shot. Gina and Johnette observed paramedics emerge from the house with a covered body on a gurney. They assumed it was Patrick on the gurney, but acknowledged that they could not see his face.

At trial, the question whether the responding police officers' conduct fell below the standard of care was the subject of sharply divided expert testimony. Peter Reedy, a retired police sergeant who taught classes in crisis management, testified on behalf of respondents. He explained that the proper use of time is an important calming factor in crisis management because "[t]ime is on [the police's] side." He emphasized that simply waiting and not doing anything can often be the most appropriate approach because the longer the situation goes on, the less volatile it will become. Reedy testified that the officers' response to this situation was too rushed, as evidenced by the eruption of gunfire 16 minutes after they located Patrick in the backyard.

Reedy also described a guideline for crisis management called the "five Cs," or "containment, control, confirm[ation], calm, and communicat[ion]." He opined that the responding officers violated this guideline in a variety of ways. Once the officers properly contained the situation by setting up a police perimeter to prevent Patrick from escaping, Reedy testified they should have "backed off," left the backyard, and then tried to "talk and negotiate and find out how Pat[rick] was and what would help him to calmly handle the situation."

Reedy concluded that Sergeant Osawa did not control the situation adequately by providing the officers with proper supervision at the scene. In Reedy's opinion, Sergeant Osawa should have directed the officers from a central command post situated away from the "action," and controlled the officers in order to decrease tension and restore calm. In this case, both the control and the calm principles were violated when armed officers yelled, shined flashlights, and used a police dog in close proximity to Patrick. These actions raised the level of anxiety surrounding the scene.

Reedy testified the officers violated the principle of confirmation by failing to gather sufficient information about Patrick and the events leading up to his threatened suicide. Reedy also believed that the officers failed to communicate with Patrick in an appropriate manner. Ideally, negotiations should be conducted in a calm manner, one-on-one, and in private if possible. Reedy opined that this standard was violated when untrained officers issued confrontational commands. Reedy concluded that by the time Officer Tajima-Shadle was brought to the backyard, even the best negotiator could not have talked to Patrick because the level of anxiety at the scene was too high.

In addition to the "five Cs," Reedy testified that police standards require officers responding to a threatened suicide to protect the safety of the suicidal person by refraining from taking actions that might raise his or her anxiety levels. Instead, officers are supposed to calm the suicidal individual through talking, empathy, and understanding. Reedy concluded that this standard was violated when the officers yelled, used guns, got close to Patrick, and employed a police dog instead of a negotiator.

Reedy also testified that deadly force should never be used without first attempting "lesser degree" responses such as pulling back, getting a negotiator, and talking and showing empathy. Reedy opined that this force standard was also violated, explaining "If you lock yourself in by all these officers real close with their weapons, if you lock yourself into that, you leave yourself no alternative."

Reedy buttressed his conclusions by quoting portions of "City of Fremont training bulletin 9110" dated July 1991 (the Bulletin) entitled "Guide for First Responders to Hostage Situations" that referred to suicide by the hostage taker. Although Patrick had taken no hostages, Reedy testified the Bulletin set forth applicable standards for police conduct in situations involving crisis intervention, critical incident management, and threatened suicides. The Bulletin instructed officers to "[a]void giving orders that may escalate the confrontation" and informed officers that "[y]our efforts should be directed toward decreasing anxiety and tension." The Bulletin also apparently referred to the time standard when it advised officers to ". . . allow the subject to speak further. If he is talking, you are gaining time." Reedy opined that the procedures set forth in the Bulletin were not followed in this case.

Respondents also introduced the expert testimony of psychiatrist Dr. Robert E. Litman, who described himself as an expert on "suicidology." 12Link to the text of the note Dr. Litman testified that "all suicides have multiple and complex causes but the police were a major cause, a substantial cause [of Patrick's suicide.]" Dr. Litman based his conclusion on the following reasons: (1) Patrick was alone with a gun for more than an hour but he did not use it to commit suicide; (2) Patrick had no underlying motive for committing suicide; (3) previous episodes of drinking and depression had "de-escalated" and Patrick had "sle[pt] it off"; (4) approximately 95 percent of suicides occur when those people are alone, while less than 5 percent of suicides are committed in the presence of others; and (5) suicides committed in the presence of others occur "nearly always when the other people provoke it." Dr. Litman also testified that Patrick's suicide had additional causes such as his drinking, his possession of a gun and his history of considering suicide as an option.

In Dr. Litman's opinion, the best approach would have been to send Patrick's best friend, Alan Kirshner, unarmed into the backyard to speak quietly with Patrick. He acknowledged that this approach included a risk that Patrick would have shot Kirshner, but concluded that "there would have been a reasonable probability that he would not." Dr. Litman also testified that this approach included a risk that Patrick would have shot himself if Mr. Kirshner approached him, but opined that "[Patrick] would not" and characterized the risk as "reasonable." If Mr. Kirshner was not available, Dr. Litman testified that he would have waited a while, and then would possibly have tried sending Officer Tajima-Shadle alone and unarmed to the backyard to attempt further negotiations.

Appellants contested the testimony of respondents' experts through the testimony of experts Joseph Callahan and Dr. Donald Lunde. Joseph Callahan, a law enforcement consultant and trainer, testified that the conduct of the responding officers did not fall below the standard of care. He explained that the officers were responding to a high-risk situation because Patrick not only possessed a gun, but had recently fired it. This scenario implicated compelling safety issues such as the safety of the officers, Patrick, and the surrounding community.

In Callahan's opinion, the armed search of Patrick's residence and backyard was necessary and appropriate. The officers properly conducted this search with their weapons drawn to enable them to protect themselves and others and "repel any type of assault that they might reasonably expect under these conditions including the notion [that] a person may force a fire fight for the purpose of . . . committing suicide. " He explained that suicidal people present a significant threat to police officers because incidents regularly occur in which the police are engaged in order to commit "suicide by cop."

In Callahan's opinion, the officers' top priority was to "isolate and contain" Patrick, and they employed proper tactics to accomplish this goal. Negotiations were secondary, and could not have even taken place without first "put[ting] a cap" on the situation through isolation and containment of Patrick.

Callahan did not agree that the officers should have retreated after locating Patrick because any repositioning of the officers increased their vulnerability to aggressive gunfire. Additionally, the officers' close proximity to Patrick offered strategic advantages. In the event Patrick separated himself from the gun, the officers would have been able to move swiftly to physically prevent Patrick from retrieving his weapon.

Callahan opined that the officers' use of the police dog was proper "because the dog offers . . . a non-lethal force option to probe the condition of [a] subject. It may get a response that helps [officers] solve the problem." He did not agree that too many officers were employed at the scene, nor did he feel that the officers' insistence on Patrick's surrendering his weapon was improper. Instead, Callahan testified that the officers' demands that Patrick put down the gun were consistent with good police practice. He explained that "[t]he gun is the problem. If we can get the gun put down and more importantly, if we can separate the gun from the subject, we can go from a high-risk operation down to something that's got moderate risk."

Callahan also testified that waiting to summon Officer Tajima-Shadle until Patrick was communicative was consistent with good police practice. He explained that "If you're not having a dialogue, then the negotiator is useless. It's just more noise. It doesn't mean anything is happening. It's just somebody else talking. I'd save it [for] where I believe it would be most effective." In sum, Callahan opined that the responding officers acted in a manner that was consistent with "good police practice" throughout the incident.

Appellants also presented the expert testimony of psychiatrist Dr. Donald Lunde. Dr. Lunde disagreed with Dr. Litman's testimony that the police were a major or significant cause of Patrick's suicide. In his opinion, Patrick presented virtually all of the recognized suicide risk factors, including Patrick's age and gender, his previous episodes of depression and talk of suicide, his refusal to get professional help for depression, his intoxication, and his possession and recent use of a firearm. Dr. Lunde referred to Patrick as "a time bomb waiting to go off." He testified that given "all the major and substantial risk factors that contributed to [Patrick's] suicide that night . . . there simply isn't room logically for some other substantial or major factor."

On March 25, 1996, after the defense rested their case, the court granted appellants' motion for nonsuit and/or directed verdict as to certain causes of action, and denied it as to others. The court dismissed all of respondents' claims with the exception of Johnette's cause of action for wrongful death, and Johnette and Gina's causes of action for negligent infliction of emotional distress as bystanders to the shooting. However, the court rejected appellants' contention that a nonsuit or directed verdict should be granted as to the remaining causes of action on the grounds that: (1) appellants owed no legal "duty" of care to Patrick or his family; and (2) appellants were immune from civil liability for their acts under section 820.2.

At the hearing on the motions for nonsuit and/or directed verdict, the court entertained oral argument concerning the wording of the special verdict and/or any special interrogatories that would be submitted to the jury. Appellants contended that the special verdict should require the jury to identify the specific acts on which it based any finding of police negligence. Respondents contended that the jury should only be required to state whether negligence occurred. At several points during the argument, the court expressed its belief that if the jury found negligence occurred, special interrogatories should be submitted to ensure the validity of the verdict. The matter was submitted to the jury on March 27, along with a special verdict form that did not include the special interrogatories. 13Link to the text of the note

On April 1, 1996, the jury found that each of the police officers at the scene was negligent, that this negligence was a cause of Patrick's death, and that this negligence resulted in Johnette and Gina suffering serious emotional distress as bystanders at the scene. The jury awarded Johnette $ 1,288,804 for the wrongful death of Patrick and $ 2.5 million for the negligent infliction of emotional distress. Gina was awarded $ 1.5 million in emotional distress damages. The jury found that Patrick was 25 percent contributorily negligent.

After this verdict was rendered, appellants renewed their request for the special interrogatories discussed at the March 25 hearing. Respondents opposed the request, arguing that the special interrogatories would be invalid because the jury had already returned its verdict. The court rejected respondents' timeliness argument, stating that this argument should have been raised at the March 25 hearing when the court indicated its intention to submit the special interrogatories to the jury in the event it found the officers were negligent.

The jury was recalled and the court submitted the special interrogatories to the jury. In response, the jury identified 13 ways in which they believed the police officers negligently handled the incident. The jury listed the factual bases of its negligence findings as follows: (1) "Lacked control of the officers"; (2) "Insufficient communications"; (3) "Lack of information"; (4) "Did not respond to suicide call as such. It was an assault response rather than assist"; (5) "Did not follow Fremont Police Dep[artment] procedures for dealing with a critical incident"; (6) "Delayed calling in medical help"; (7) "Decision to use dog prior to using a negotiator"; (8) "Allowed untrained officer to attempt negotiation"; (9) "Did not evacuate all the neighbors"; (10) "Did not maintain the psychological sanctity of the family members at the scene"; (11) "The use of [seven] armed officers left no option but force"; (12) "Once location of Pat[rick] was known, did not back down to allow calming of situation"; and (13) "Yelling and shouting at Pat[rick] did not allow for calm." 14Link to the text of the note

On April 19, 1996, the court entered a judgment in favor of Johnette for $ 2,841,603 and in favor of Gina for $ 1,125,000, resulting in a total judgment against appellants of $ 3,966,603 plus costs.

On May 7, 1996, appellants timely moved for a judgment notwithstanding the verdict and/or for new trial contending: (1) the police officers owed no legal duty to Patrick or his family; (2) the police officers and the city were immune from liability; (3) insufficient evidence was introduced to support the verdict; and (4) the awarded damages were excessive. On June 11, 1996, the court denied the motion for a judgment notwithstanding the verdict, but granted the motion for a new trial in part on the ground that emotional distress damages awarded to Johnette and Gina were excessive. The new trial was conditioned on Johnette and Gina's refusal to accept a reduction in the emotional distress damages of $ 750,000 and $ 375,000 respectively. Respondents refused to consent to this reduction.

On June 25, 1996, appellants filed this timely appeal from the April 19, 1996, judgment. Respondents have cross-appealed from the June 11, 1996, order granting a new trial on emotional distress damages. 15Link to the text of the note

III.

Discussion

A. Overview

1. Standard of Review

Appellants contend that the jury's verdict must be reversed because the police officers on the scene owed no legal duty to Patrick or his family to act with reasonable care in order to prevent Patrick's suicide. 16Link to the text of the note Appellants raised this issue of "duty" in their motion for nonsuit and/or directed verdict at the close of trial. 17Link to the text of the note Thus, we review the trial court's rulings to determine whether it erred in denying the requested nonsuit or directed verdict.

"A defendant is entitled to a nonsuit if the trial court determines that, as a matter of law, the evidence presented by plaintiff is insufficient to permit a jury to find in his favor. [Citation.] 'In determining whether plaintiff's evidence is sufficient, the court may not weigh the evidence or consider the credibility of witnesses. Instead, the evidence most favorable to plaintiff must be accepted as true and conflicting evidence must be disregarded. The court must give "to the plaintiff['s] evidence all the value to which it is legally entitled, . . . indulging every legitimate inference which may be drawn from the evidence in plaintiff'[s] favor." ' [Citation.] A mere "scintilla of evidence" does not create a conflict for the jury's resolution; 'there must be substantial evidence to create the necessary conflict.' [Citation.]" ( Nally v. Grace Community Church (1988) 47 Cal. 3d 278, 291 [253 Cal. Rptr. 97, 763 P.2d 948] (Nally), quoting 7 Witkin, Cal. Procedure (3d. ed. 1985) Trial, § 410, p. 413, original italics.) The trial court is governed by the same standard in ruling on a motion for directed verdict. ( Estate of Fossa (1962) 210 Cal. App. 2d 464, 466 [26 Cal. Rptr. 687].)

In reviewing the denial of a motion for nonsuit or directed verdict, appellate courts, like trial courts, must evaluate the evidence in the light most favorable to the plaintiff. (Nally, supra, 47 Cal. 3d at p. 291.) Reversal of the denial of a motion for nonsuit or directed verdict is only proper when no substantial evidence exists tending to prove each element of the plaintiff's case.

Appellants contended at trial, and do so here, that they could not be liable to respondents because they had no legal duty to prevent harm to them, and because appellants' acts or omissions are protected from liability by the statutory immunity for discretionary acts set forth in section 820.2. 18Link to the text of the note

2. Scope of Review

Although related, the concepts of duty and immunity invoke separate analyses. Where no legal duty is found to be owing the injured party, the court need not determine if one or more statutory immunities apply so as to insulate the entity and employee from liability. (See, e.g., Stout v. City of Porterville (1983) 148 Cal. App. 3d 937, 948 [196 Cal. Rptr. 301] (Stout); Allen, supra, 172 Cal. App. 3d at pp. 1091-1092, fn. 11.) "Conceptually, the question of the applicability of a statutory immunity does not even arise until it is determined that a defendant otherwise owes a duty of care to the plaintiff and thus would be liable in the absence of such immunity." ( Davidson v. City of Westminster (1982) 32 Cal. 3d 197, 201-202 [185 Cal. Rptr. 252, 649 P.2d 894] (Davidson).) So deeply rooted is this decision tree that the Supreme Court in Williams v. State of California (1983) 34 Cal. 3d 18 [192 Cal. Rptr. 233, 664 P.2d 137] (Williams), chided trial and intermediate appellate courts that "[o]nce again the immunity cart has been placed before the duty horse." ( Id. at p. 22.) Because we find no legal duty was owed to respondents by appellants under the facts of this case, we allow ourselves to be moved by the high court's nudge in the direction of judicial restraint. Accordingly, we do not decide the question of whether the appellants also fell within the immunity for discretionary acts provided for in section 820.2.

We turn then to the law and analysis on the limited question of duty.

3. Doctrinal Bases for Determining Tort Liability of Appellants

Until 1961, when the Supreme Court decided Muskopf v. Corning Hospital Dist. (1961) 55 Cal. 2d 211, 213 [11 Cal. Rptr. 89, 359 P.2d 457], absent a waiver of sovereign immunity, the state and its political subdivisions had no tort liability to private persons. In response to the Muskopf decision, two years later the Legislature enacted a comprehensive statutory scheme known as the California Tort Claims Act, which reinstated the general rule of nonliability while defining the circumstances under which public entities and their employees may be sued for damages arising from tort injuries or death. Since 1963, where recovery is sought against public entities or their employees for injuries or death resulting from alleged negligent conduct, the right to recover is now defined by statute. (§ 815; 19Link to the text of the note Cochran v. Herzog Engraving Co. (1984) 155 Cal. App. 3d 405, 409 [205 Cal. Rptr. 1].)

Public employees are liable for injuries resulting from their acts or omissions to the same extent as private persons, except where otherwise exempted or immunized by law. (§ 820.) Public entities are correspondingly liable for the negligent acts or omissions of their employees acting within the scope of their employment except where either the employee or the public entity is immunized from liability by statute. (§ 815.2.) 20Link to the text of the note However, "[t]he exclusive sway of statutory rules does not foreclose the aid of common law tort doctrines and analogies in ascertaining and achieving imperfectly expressed statutory objectives. [Citation.]" ( Low v. City of Sacramento (1970) 7 Cal. App. 3d 826, 831 [87 Cal. Rptr. 173].) Where a legal duty is not created by statute, the question of whether a legal duty exists is analyzed under general principles of tort law. (See, e.g., Brenneman v. State of California (1989) 208 Cal. App. 3d 812, 818 [256 Cal. Rptr. 363].)

" 'A tort, . . . involves a violation of a legal duty, imposed by statute, contract or otherwise, owed by the defendant to the person injured. Without such a duty, any injury is "damnum absque injuria"--injury without wrong. [Citations.]' [Citation.] Thus, in order to prove facts sufficient to support a finding of negligence, a plaintiff must show that defendant had a duty to use due care, that he breached that duty, and that the breach was the proximate or legal cause of the resulting injury. [Citation.]" (Nally, supra, 47 Cal. 3d at pp. 292-293, italics omitted.)

The existence of a duty of care is a question of law to be determined by the court alone. ( Ballard v. Uribe (1986) 41 Cal. 3d 564, 572, fn. 6 [224 Cal. Rptr. 664, 715 P.2d 624]; Stout, supra, 148 Cal. App. 3d at p. 942; Peter W. v. San Francisco Unified Sch. Dist. (1976) 60 Cal. App. 3d 814, 822 [131 Cal. Rptr. 854]; Raymond v. Paradise Unified School Dist. (1963) 218 Cal. App. 2d 1, 8 [31 Cal. Rptr. 847].) This is because "legal duties are . . . merely conclusory expressions that, in cases of a particular type, liability should be imposed for damage done." ( Tarasoff v. Regents of University of California (1976) 17 Cal. 3d 425, 434 [131 Cal. Rptr. 14, 551 P.2d 334, 83 A.L.R.3d 1166].) Duty is simply a shorthand expression for the sum total of policy considerations favoring a conclusion that the plaintiff is entitled to legal protection. ( Dillon v. Legg (1968) 68 Cal. 2d 728, 734 [69 Cal. Rptr. 72, 441 P.2d 912, 29 A.L.R.3d 1316].)

Examining whether a legal duty exists and whether a particular defendant was negligent is not a coterminous exercise. Fulfilling the court's responsibility to determine if a legal duty exists necessarily requires consideration and balancing of sometimes competing public policies which may be irrelevant to the factual determination of whether the challenged conduct fell below the prevailing standard of care.

Despite superficial similarities, the roles of the court in resolving questions of law and of the jury as fact finder, are separate and distinct. For example, the question of foreseeability is germane to the functions of both the court in determining the presence or absence of a legal duty, and also to the role of the jury in determining whether a legal duty was breached and caused harm to the plaintiff. It is "part of the calculus to which a court looks in defining the boundaries of 'duty.' [P] . . . [P] The jury, by contrast, considers 'foreseeability' in two more focused, fact-specific settings. First, the jury may consider the likelihood or foreseeability of injury in determining whether, in fact, the particular defendant's conduct was negligent in the first place. Second, foreseeability may be relevant to the jury's determination of whether the defendant's negligence was a proximate or legal cause of the plaintiff's injury." ( Ballard v. Uribe, supra, 41 Cal. 3d at pp. 572-573, fn. 6.) Therefore, we must discharge our responsibility to decide if a legal duty exists independent of the findings by the jury that appellants failed to exercise due care and proximately caused Patrick's suicide. We may not abdicate our distinct role based on the inapposite findings of the jury.

For this reason we are also not constrained by the opinion testimony of respondents' expert witnesses, who testified that the police caused Patrick's suicide and violated the applicable standard of care by increasing the anxiety level at the scene or rushing the situation. Opinion testimony is inadmissible and irrelevant to adjudging questions of law. ( Sheldon Appel Co. v. Albert & Oliker (1989) 47 Cal. 3d 863, 884 [254 Cal. Rptr. 336, 765 P.2d 498]; Evid. Code, § 801, subd. (b).) For example, expert opinion testimony that a driver was " 'most responsible' " for causing an accident was ruled to be an inadmissible legal conclusion in Carlton v. Department of Motor Vehicles (1988) 203 Cal. App. 3d 1428, 1432 [250 Cal. Rptr. 809].

Similarly, in Williams v. Coombs (1986) 179 Cal. App. 3d 626 [224 Cal. Rptr. 865] disapproved on another point in Sheldon Appel Co. v. Albert & Oliker, supra, 47 Cal. 3d at pages 881-884, the court refused to consider expert declarations expressing an opinion on whether "probable cause" existed as a defense to a malicious prosecution claim. The court explained: " '[I]t is thoroughly established that experts may not give opinions on matters which are essentially within the province of the court to decide.' [Citation.] Consequently, the 'opinion of a witness on a question of law is obviously incompetent.' [Citations.]" (179 Cal. App. 3d at p. 638.) Thus, we must determine whether appellants had a duty to prevent Patrick's suicide and whether a "special relationship" was formed between the parties without relying on the expert testimony presented at trial.

In arguing in favor of a duty in this case, respondents primarily contend a duty of care exists under a Rowland v. Christian analysis. ( Rowland v. Christian (1968) 69 Cal. 2d 108 [70 Cal. Rptr. 97, 443 P.2d 561, 32 A.L.R.3d 496] (Rowland). They also assert two alternative claims: (1) liability may be based on the "well-recognized duty" to prevent suicide allegedly espoused in Allen, supra, 172 Cal. App. 3d 1079; and (2) a duty may be imposed based on a "special relationship" that was created as a result of the "control" exercised by appellants once they responded to the 911 call for assistance.

In assessing the question of duty in cases challenging the conduct of law enforcement personnel generally, appellate courts in this state over the last 20 years have employed a variety of standards drawn from broad principles of tort law. Arguably, the more common approach has been to apply the multifactor duty analysis first articulated in the landowner liability case of Rowland, supra, 69 Cal. 2d 108. (See, e.g., Dutton v. City of Pacifica (1995) 35 Cal. App. 4th 1171, 1175-1176 [41 Cal. Rptr. 2d 816] (Dutton); Allen, supra, 172 Cal. App. 3d at pp. 1087-1091; Shelton v. City of Westminster (1982) 138 Cal. App. 3d 610, 616-619 [188 Cal. Rptr. 205].) Other courts have relied on the more amorphous "special relationship" doctrine which appears to have first been applied to public entities in McCorkle v. City of Los Angeles (1969) 70 Cal. 2d 252 [74 Cal. Rptr. 389, 449 P.2d 453] (McCorkle), following enactment of the California Tort Claims Act, and which has been used to explain cases that imposed a duty on police officers to protect individual members of the citizenry in some contexts. (See Williams, supra, 34 Cal. 3d at p. 24 discussing McCorkle, supra, 70 Cal. 2d 252; Davidson, supra, 32 Cal. 3d at p. 208 discussing Mann v. State of California (1977) 70 Cal. App. 3d 773 [139 Cal. Rptr. 82] (Mann).)

In some instances, our Supreme Court has engaged in a duty analysis under both standards (see, e.g, Davidson, supra, 32 Cal. 3d at pp. 203-209; Nally, supra, 47 Cal. 3d at pp. 293-300; see also Hernandez v. City of Pomona (1996) 49 Cal. App. 4th 1492, 1498-1505 [57 Cal. Rptr. 2d 406]; Harris v. Smith (1984) 157 Cal. App. 3d 100, 107-109 [203 Cal. Rptr. 541].) However, the interrelationship between the traditional duty analysis and the "special relationship" doctrine has never been clearly defined. Moreover, the Supreme Court has yet to determine whether, or to what extent, a common law duty of care to control another's conduct is owed to individual members of the public by public safety professionals engaged in tactical field operations resulting from a citizen's request for crisis intervention. 21Link to the text of the note

In reversing the judgment in this case, we examine the question of duty utilizing both standards. As we proceed, we note to some extent the two are in conflict. Most problematic is harmonizing the policies underlying each standard and examining the applicability of each to factual circumstances not heretofore addressed in the cases from which California's duty analysis has evolved.

B. Duty of Care Analysis Under "Traditional" Rowland Factors

Since Rowland was decided, its innumerable judicial descendants have adopted the Rowland court's multi-element duty assessment in determining whether a particular defendant owed a tort duty to a given plaintiff. 22Link to the text of the note These factors include: (1) the foreseeablility of harm to the injured party; (2) the degree of certainty that the injured party suffered harm; (3) the closeness of the connection between the defendant's conduct and the injury suffered; (4) the moral blame attached to the defendant's conduct; (5) the policy of preventing future harm; (6) the extent of the burden to the defendant; and (7) the consequences to the community of imposing a duty to exercise care, with resulting potential liability. (Rowland, supra, 69 Cal. 2d at pp. 112-113.) Where a public entity is involved, the court considers the following additional factors: the availability, cost, and prevalence of insurance for the risk involved; the extent of the agency's powers; the role imposed on it by law; and the limitations imposed on it by budget. ( Thompson v. County of Alameda (1980) 27 Cal. 3d 741, 750 [167 Cal. Rptr. 70, 614 P.2d 728, 12 A.L.R.4th 701]; Dutton, supra, 35 Cal. App. 4th at p. 1175; Allen, supra, 172 Cal. App. 3d at pp. 1086-1087.)

In Parsons v. Crown Disposal Co. (1997) 15 Cal. 4th 456 [63 Cal. Rptr. 2d 291, 936 P.2d 70] (Parsons), our Supreme Court has recently reiterated that in analyzing duty under the Rowland standard, " ' "[d]uty" is not an immutable fact of nature " 'but only an expression of the sum total of those considerations of policy which lead the law to say that the particular plaintiff is entitled to protection.' " [Citation.]' " ( Id. at p. 472, original italics.) Seeming to presage the very analysis involving the activities of law enforcement we are called upon to make in this case, the high court went on to declare: "In addition, when addressing conduct on the part of a defendant that is 'deliberative, and . . . undertaken to promote a chosen goal, . . . [c]hief among the factors which must be considered is the social value of the interest which the actor is seeking to advance.' [Citations.]" ( Id. at p. 473, original italics.) Thus, we examine the multipart Rowland test as it applies to the circumstances before us, exploring the policies endemic to each prong of that standard while remaining mindful of the Supreme Court's pronouncement that the first policy consideration in duty analysis is " ['[t]he social utility of the activity out of which the injury arises.']" (Ibid., fn. omitted.)

1. Foreseeability

Unquestionably, it is foreseeable that when police officers respond to a person threatening suicide with a loaded firearm in a confrontational manner, 23Link to the text of the note that person may ultimately commit suicide. It is also foreseeable that suicide could result from a decision to delay any police intervention until the arrival of a trained negotiator, or adopting a "wait and see" approach that does not focus on requiring the suicidal individual to disarm. Moreover, injury to the police or third parties foreseeably might result from approaching an armed suicidal individual without sufficient firepower or police backup.

Indubitably, the low threshold for foreseeability is met here, yet in this highly charged, volatile situation frozen in time by the record, almost any result was foreseeable with the benefit of hindsight. We are mindful that imposing liability retrospectively lends itself to " 'typical Monday-morning quarterbacking' " (Dutton, supra, 35 Cal. App. 4th at p. 1175, quoting Williams, supra, 34 Cal. 3d at p. 30 (conc. and dis. opn. of Mosk, J.).) Our Supreme Court has remarked "[T]here are clear judicial days on which a court can foresee forever and thus determine liability but none on which that foresight alone provides a socially and judicially acceptable limit on recovery of damages for that injury." ( Thing v. La Chusa (1989) 48 Cal. 3d 644, 668 [257 Cal. Rptr. 865, 771 P.2d 814].) Because the bar of foreseeability is set so low, foreseeability alone is insufficient to create a legal duty to prevent harm. ( Id. at p. 668, fn. 11; Nally, supra, 47 Cal. 3d at p. 297.)

2. Degree of Certainty That the Plaintiff Suffered Injury and Closeness of the Causal Connection

The nexus between the acts or omissions of appellants and the harm suffered by respondents contemplated by a duty analysis is significantly different from that needed to satisfy a factual determination of proximate cause. Proximate causation requires simply that the act or omission of the defendant be a "substantial [contributing] factor" to the harm suffered. ( Mitchell v. Gonzales (1991) 54 Cal. 3d 1041 [1 Cal. Rptr. 2d 913, 819 P.2d 872].) In determining the existence of a duty, we must assess not only the fact that a causative relationship exists but also we must quantify that connection in balance with the other Rowland factors.

Undoubtedly, Patrick suffered injury. The more troubling question is why. To what extent was it inexorably linked to the conduct of appellants? Undisputed testimony established that Patrick had been depressed and had considered suicide in the past. Immediately preceding the arrival of the police officers, Patrick had a significant altercation with his wife, secreted himself in a closet with a gun, and responded to his stepdaughter's efforts at communication by discharging his weapon. When the police located Patrick, he was clad only in his underwear, sitting in his backyard with a gun clutched to his chest.

To the extent the actions of appellants are linked to Patrick's tragic decision to end his life, they are indirect and inferential. None of the evidence presented at trial demonstrates that the police suggested or encouraged Patrick to turn the gun on himself. On this record, the degree of certainty between the manner in which the police officers responded to the incident and Patrick's suicide is weak, and the closeness of the connection is remote.

3. Moral Blame

Moral blame has been applied to describe a defendant's culpability in terms of the defendant's state of mind and the inherently harmful nature of the defendant's acts. To avoid redundancy with the other Rowland factors, the moral blame that attends ordinary negligence is generally not sufficient to tip the balance of the Rowland factors in favor of liability. (See, e.g., Merenda v. Superior Court (1992) 3 Cal. App. 4th 1, 10-11 [4 Cal. Rptr. 2d 87].) Instead, courts have required a higher degree of moral culpability such as where the defendant (1) intended or planned the harmful result (see, e.g., McCollum v. CBS, Inc. (1988) 202 Cal. App. 3d 989, 1005 [249 Cal. Rptr. 187]); (2) had actual or constructive knowledge of the harmful consequences of their behavior (see, e.g., Rosenbaum v. Security Pacific Corp. (1996) 43 Cal. App. 4th 1084, 1098 [50 Cal. Rptr. 2d 917]); (3) acted in bad faith or with a reckless indifference to the results of their conduct (see, e.g., Dutton, supra, 35 Cal. App. 4th at p. 1176; Merenda v. Superior Court, supra, 202 Cal. App. 3d at p. 11); or (4) engaged in inherently harmful acts (see, e.g., Scott v. Chevron U.S.A. (1992) 5 Cal. App. 4th 510, 517 [6 Cal. Rptr. 2d 810]).

The conduct of the police officers in this incident was not morally blameworthy, as this term is understood in its legal context. The police officers promptly and dutifully responded to a citizen's call for help. Knowing little about the circumstances they would be facing, they went to the scene and encountered Patrick, who was armed with a loaded firearm and who had been engaging in behavior that was decidedly both suicidal and assaultive. They became aware that earlier in the evening he had broken dishes, knocked items off shelves, and overturned furniture, armed himself with a 9-millimeter Beretta, and fired off a round of ammunition in the house, causing respondents to flee the family home late at night. Throughout the incident, Patrick adamantly refused to do the one thing that would have alleviated the police officers' safety concerns--surrender his weapon.

Police officers often act and react in the milieu of criminal activity where every decision is fraught with uncertainty. ( Morgan v. District of Columbia (D.C. App. 1983) 468 A.2d 1306, 1311.) Although appellants could have responded to this situation in a less confrontational manner, there is certainly no evidence that appellants intended or planned to precipitate Patrick's suicide, had actual or constructive knowledge that their behavior would cause Patrick's suicide, or acted with bad faith or a reckless indifference to the consequences of their actions. Nor can the officers' attempts to investigate the situation, disarm Patrick, and dissuade him from attempting suicide be described as inherently harmful acts. Under these facts, there was no moral blame attendant to the conduct of appellants.

4. Policy of Preventing Future Harm, Extent of Burden to Appellants, and Consequences to the Community

Respondents contend that imposing liability is "necessary to send the message that it is important to deal sensitively and appropriately with a troubled person who is considering ending his own life." They argue that the present case implicates "ONLY ONE POLICY CONSIDERATION: that of preventing a needless death." Thus, they contend the prevention of future harm can only be furthered by imposing a legal duty on law enforcement to act nonnegligently in handling emergency suicide calls. Although we agree that encouraging police officers to deal with a suicidal person in a sensitive and appropriate manner is an important goal, we question whether the public policy of preventing future harm will actually be furthered by imposition of liability.

In Allen, supra, 172 Cal. App. 3d at pages 1084-1091, the court considered whether to impose a duty on police officers to use reasonable care to prevent family members brought to the scene of a threatened suicide from sustaining emotional distress. The court observed that police officers responding to the scene of a potential suicide must consider three separate interests. ( Id. at p. 1089.) In order of their importance, these interests are: (1) the physical safety of the community, including themselves, other citizens, and family members; (2) the physical safety of the potential victim (the threatened suicide); and (3) the psychological sanctity of a family member at the scene.

We agree with the Allen court's conclusion that police officers providing assistance at the scene of a threatened suicide must concern themselves with more than simply the safety of the suicidal person. Protection of the physical safety of the police officers and other third parties is paramount. 24Link to the text of the note (Allen, supra, 172 Cal. App. 3d at p. 1089.)

The Allen court explained its reference to the need to protect the physical safety of police officers and others by noting: " 'Statistically, the homicide rate is higher among persons with a history of suicide attempts, and the converse is also true: the rate of suicide attempts is higher among persons with assaultive histories. . . . The police officer should be particularly wary in cases where an individual has locked himself in his house or car and is threatening to kill himself with a gun. It only takes a moment of turning his resentment over feeling unloved outward, instead of inward, for him to begin firing at the officer.' (Cooke, Training Police Officers to Handle Suicidal Persons (Jan. 1979) 24 J. Forensic Sci. 227, 232.)" (Allen, supra, 172 Cal. App. 3d at p. 1089, fn. 8.)

The Allen court concluded that the burden to the defendant weighed against the imposition of a duty of care to family members at the scene because imposing liability for emotional distress would elevate a family member's psychological sanctity above the safety and well-being of the community, the police, and the person who is threatening suicide. (Allen , supra, 172 Cal. App. 3d at p. 1089.) The consequences to the community of protecting family members from the chance of witnessing a suicide, would be "the occurrence of greater numbers of suicides, homicides and woundings." (Id. at p. 1090.)

In keeping with the analysis employed by the Allen court, we conclude that imposing liability for the negligent handling of a threatened suicide improperly elevates the interests in preserving the life of the person threatening suicide over the interests of public safety and the physical safety of police officers.

Moreover, at a minimum, imposition of a tort duty on public safety officers engaged in disarming suicidal persons is certainly likely to result in a more tentative police response to such crises. A suicide crisis involving a loaded firearm is an unstable situation in which the police must be free to make split-second decisions based on the immediacy of the moment. Knowledge that any unsuccessful attempt at intervention will be subjected to second-guessing by experts with the 20/20 vision of hindsight years following the crisis is likely to deter the police from taking decisive action to protect themselves and third parties. (Cf. Scott v. Henrich (9th Cir. 1994) 39 F.3d 912; see also Rayano v. City of New York (1955) 138 N.Y.S.2d 267 [imposing liability for police judgments exercised under conditions of peril and stress is likely to result in unduly hesitant police responses to emergency situations].) Certainly, the risk of inhibiting law enforcement intervention necessary for the preservation of community welfare and peace outweighs the importance of ensuring nonnegligent treatment of persons threatening suicide--a consideration we readily acknowledge and which is only minimized by its comparison to the greater public interest.

Furthermore, exposing police officers to tort liability for inadequate or unreasonable assistance to suicidal individuals could inhibit them from providing intervention at all. 25Link to the text of the note The resulting loss of an important resource in dealing with threatened suicides would be devastating to such affected communities.

In this respect our view is similar to the analysis employed by Division One of this district in Dutton, supra, 35 Cal. App. 4th 1171. In Dutton, the court held that a police officer owed no duty of care to a teenager whom the officer had instructed to leave a public park after curfew, and ordered to ride in the back of a truck driven by another minor. In analyzing the public policy implications of imposing such a duty, the court concluded "Were we to impose a duty in this case, a police officer confronting a group of loitering teenagers would be left with only two options--leaving the teenagers alone (thereby compromising the officer's ability to protect both the teenagers and the public generally) or assuming full responsibility for their welfare (thereby compromising the officer's ability to protect the remainder of the public)." ( Id. at p. 1176.)

Like the Dutton court, we will not impose a duty that requires police officers to choose between refusing to offer assistance at the scene of a threatened suicide or assuming full responsibility for the suicidal individual's welfare. This choice discourages police officers from rendering assistance in these inherently unpredictable situations in which even highly trained mental health professionals cannot guarantee success. Any reduction in the availability of police assistance at the scene of threatened suicides would severely compromise public safety and likely result in more deaths or injuries.

Yet, respondents correctly point out that not imposing a legal duty on police officers to take reasonable measures to prevent a threatened suicide correspondingly diminishes the benefits to the public gained by requiring law enforcement personnel to be accountable for their unreasonable conduct. While this is so to some extent, we conclude on balance the interests to the public in protecting against future harm and the detrimental consequences to the public in imposing a tort duty under such circumstances, outweigh the partial loss of legal accountability occasioned by a rule of nonliability. Moreover, our decision does not insulate police misconduct from all legal and internal scrutiny. Plaintiffs may still pursue a legal action when police misconduct constitutes an intentional tort or a violation of an individual's constitutional or other federally protected rights. (42 U.S.C. § 1983). Furthermore, citizens may obtain internal review of police conduct by filing a citizen complaint ( Pen. Code, § 832.5), and police officers may be sanctioned as a result of internal disciplinary proceedings. (See Warren v. District of Columbia (D.C.App. 1981) 444 A.2d 1, 8 (Warren).) The existence of these other avenues for redress undercuts the need for additionally imposing tort liability to deter police officers from responding to a threatened suicide in an unreasonable manner.

5. The Availability, Cost, and Prevalence of Insurance for the Risk Involved

Insurance may be available to cover public entities for the negligence of their employees, yet this factor has "little relevance" where significant policy considerations militate against the imposition of a duty of care. (Allen, supra, 172 Cal. App. 3d at p. 1090.) Like the Allen court, we believe that the risk of liability will affect police conduct regardless of whether an adverse judgment is covered by insurance. Only the most irresponsible police officers would shrug off the possibility of a judgment holding them personally liable for another's suicide solely because monetary damages would not be coming out of their own pocket. Moreover, an inordinate amount of public time, and thus money, would be consumed in the litigation of such private claims that otherwise could be utilized in increasing the quality of police services provided to the public. (Cf. Warren, supra, 444 A.2d at p. 8.)

6. The Extent of the Agency's Powers, the Role Imposed Upon It by Law and the Limitations Imposed Upon It by Budget

Our Supreme Court has acted to dispel "widely held misconceptions" that law enforcement's public safety function imposes a duty on police officers to protect individual constituents as opposed to the general public. (Williams, supra, 34 Cal. 3d at pp. 23-24.) Although police officers regularly respond to third parties' requests for assistance, they are not professional Good Samaritans subject to a " 'novel' " claim of malpractice whenever their response falls short of " 'what reasonably prudent police employees would have done in similar circumstances.' " ( Id. at p. 24, fn. 3, quoting with approval Warren, supra, 444 A.2d at p. 8.) " 'A person does not, by becoming a police officer, insulate himself from any of the basic duties which everyone owes to other people, but neither does he assume any greater obligation to others individually. The only additional duty undertaken by accepting employment as a police officer is the duty owed to the public at large.' " (34 Cal. 3d at pp. 23-24, original italics.)

The so-called public duty rule adopted by the court in Williams is believed to be derived from the early case of South v. Maryland (1855) 59 U.S. (18 How.) 396, 403 [15 L. Ed. 433, 435] in which the United States Supreme Court stated that law enforcement is not legally responsible to individual citizens to prevent their victimization by crime because this responsibility is " 'a public duty, for neglect of which he is amenable to the public and punishable by indictment only.' " (Bonnett, Holsten v. Massey: The Coexistence of the Public Duty Doctrine and the Governmental Tort Claims and Insurance Reform Act (1997) 100 W. Va. L.Rev. 243, 249, fn. omitted.) It is based on policy concerns that the establishment of a privately enforceable duty to use reasonable diligence in the performance of public functions would "effectively bring the business of government to a speedy halt, . . ." (Warren, supra, 444 A.2d at pp. 8-9.) As the Warren court reflected, "A publicly maintained police force constitutes a basic governmental service provided to benefit the community at large by promoting public peace, safety and good order. The extent and quality of police protection afforded to the community necessarily depends upon the availability of public resources and upon legislative and administrative determinations concerning allocation of those resources. [Citation.] The public, through its representative officials, recruits, trains, maintains and disciplines its police force and determines the manner in which personnel are deployed. At any given time, publicly furnished police protection may accrue to the personal benefit of individual citizens, but at all times the needs and interests of the community at large predominate." (Id. at p. 4.)

Admittedly, law enforcement largely acts to preserve the peace by its interactions with individual members of the public. Nevertheless, the role of law enforcement in society is to act in the general public interest. Permitting potential suicide victims and their families to hold police officers personally liable for the negligent handling of a suicide crisis conflicts with the public nature of protection services police officers provide to the community at large.

Moreover, imposing a duty on law enforcement to take reasonable steps to prevent a threatened suicide would have significant budgetary implications and improperly insinuate the civil justice system into the allocation of law enforcement resources. The degree of training devoted to suicide intervention and prevention would be dictated by events in the civil courtroom, and not necessarily by the needs of the community. Compelling the reallocation of finite public resources may serve to benefit individuals in a suicidal crisis, but that benefit may be at the expense of other, more pressing law enforcement needs and programs.

7. Balancing

On balance, the relevant public policy considerations militate against imposing a legal duty on police officers to take reasonable steps to prevent a threatened suicide from being carried out. The foreseeability and certainty of harm suffered are factors which favor imposing a duty. The absence of moral blame, the remoteness of the connection between the conduct of appellants and the harm suffered, the policy of preventing future harm, consequences to the community, the role of law enforcement in society, and the potential detriment to the public in imposing judicial allocation of resources all heavily favor shielding law enforcement personnel from tort liability in instances such as this.

Moreover, the majority of the disputed conduct in this case was the product of Sergeant Osawa's deliberate tactical decisions designed to maximize the safety of the responding officers. Therefore, under Parsons, supra, 15 Cal. 4th at page 472, we must also consider the social value of the interest Sergeant Osawa sought to advance. (Ibid.) The social value of protecting the lives of police officers involved in a standoff with an armed individual is extremely high. Accordingly, after balancing the relevant considerations, we conclude that appellants owed respondents no duty of care under this analysis.

C. Duty of Care Analysis Under the Special Relationship Exception

1. The Nature of the Special Relationship Exception and Its Application to Suicide Prevention

States adopting the public duty rule often permit a "narrow exception" 26Link to the text of the note for unusual police conduct that creates a "special relationship" between the police officer and an individual member of the public. (See generally, Comment, Washington's Special Relationship Exception to the Public Duty Doctrine (1989) 64 Wash. L.Rev. 401.) This special relationship exception to the public duty rule has been adopted in California as well. In the case of law enforcement officers, a special relationship only has been found in a "few narrow circumstances." ( M.B. v. City of San Diego (1991) 233 Cal. App. 3d 699, 704-705 [284 Cal. Rptr. 555], italics added (M.B.).) Absent a special relationship creating a special duty, the police have no legal duty to control the conduct of others. ( Von Batsch v. American Dist. Telegraph Co. (1985) 175 Cal. App. 3d 1111, 1122 [222 Cal. Rptr. 239] (Von Batsch).)

Respondents argue that such a special relationship arose between Patrick and appellants, thereby creating a duty to exercise reasonable care to prevent Patrick's suicide. In cases involving suicide, courts have been extremely reluctant to impose liability based on the special relationship exception. (See, e.g., Nally, supra, 47 Cal. 3d 278; see also Lee v. Corregedore (1996) 83 Hawaii 154 [925 P.2d 324]; Donaldson v. YMCA (Minn. 1995) 539 N.W.2d 789, 792.) In Nally, our Supreme Court explained that a special relationship giving rise to a duty to exercise due care in order to prevent suicide has only been imposed "in the limited context of hospital-patient relationships where the suicidal person died while under the care and custody of hospital physicians who were aware of the patient's unstable mental condition." (47 Cal. 3d at pp. 293-294, citing Meier v. Ross General Hospital (1968) 69 Cal. 2d 420 [71 Cal. Rptr. 903, 445 P.2d 519] (Meier); Vistica v. Presbyterian Hospital (1967) 67 Cal. 2d 465 [62 Cal. Rptr. 577, 432 P.2d 193] (Vistica).) The Supreme Court described Meier and Vistica as "carefully limited precedent" that "severely circumscribe the duty they create," and declined to extend this duty of prevention to nontherapist counselors. 27Link to the text of the note (Nally, supra, 47 Cal. 3d at pp. 293-296.) The Nally court held "Neither [Meier nor Vistica] suggested extending the duty of care to personal or religious counseling relationships in which one person provided nonprofessional guidance to another seeking advice and the counselor had no control over the environment of the individual being counseled." (Id. at p. 294.)

The Supreme Court also rejected an argument that nontherapist counselors have a duty to prevent foreseeable suicides based on dictum from Bellah v. Greenson (1978) 81 Cal. App. 3d 614, 620-623 [146 Cal. Rptr. 535, 17 A.L.R.4th 1118] that appeared to extend the duty to prevent suicide to treating psychiatrists in the outpatient context. (Nally, supra, 47 Cal. 3d at pp. 294-296.) The Nally court concluded: "Rather than create a duty to prevent suicide, Bellah (and Meier and Vistica) recognized that a cause of action may exist for professional malpractice when a psychiatrist's (or hospital's) treatment of a suicidal patient falls below the standard of care for the profession, thus giving rise to a traditional malpractice action." (Id. at pp. 295-296, fn. omitted, original italics.)

Respondents contend, however, that Meier and Vistica support imposing a duty on police officers to prevent threatened suicides because police officers have even more ability to control suicidal individuals than the staff at an inpatient psychiatric facility. They observe that police responding to a threatened suicide have the ability to surround and control the suicidal individual, whereas mental health professionals will not always be in the immediate vicinity of a confined patient when they make a suicide attempt. This contention has no merit.

The Nally court's reasons for refusing to extend the duty to prevent suicide discussed in Meier, Vistica, and Bellah to nontherapist counselors are equally applicable to this case. Hospitals providing mental health services to suicidal inpatients function within an institutional setting of their own making. Every aspect of the patients' environment may be regulated. Hospitals may restrict a suicidal patient's access to weapons or other items that may be used as a means of carrying out the threatened suicide. The very raison d'tre of such facilities is therapeutic. These medical institutions provide treatment programs specifically designed to manage and treat the patient's self-destructive impulses.

In contrast, law enforcement personnel render assistance to suicidal individuals at the scene, virtually always in response to emergency calls. They must take the individual and their environment as they find them. Despite police officers' ability to surround a suicidal person physically, they cannot "control" him or her. Often the person threatening suicide already possesses the means by which to end his or her life. The suicidal individual may be barricaded in a building, holding others hostage, or threatening to end their life in any number of dangerous environments. 28Link to the text of the note Furthermore, like nontherapist counselors, police officers do not render professional counseling in the context of a supervised medical relationship, and have no duty to prevent foreseeable suicides based on traditional notions of professional malpractice. Because nontherapist counselors and police officers share a similar inability to control the suicidal individual's environment, it would be equally inappropriate to extend the "previously carefully limited precedent" set forth in Meier and Vistica to police officers at the scene of a threatened suicide. Thus, application of the special relationship exception to police officers at the scene of a suicidal standoff is not supported by Nally, Meier, or Vistica.

2. The Special Relationship Exception as Applied to Law Enforcement

A long line of cases has held that a special relationship with a person in peril is not established simply because police officers responded to a call for assistance and took some action at the scene. (See, e.g., Lopez, supra, 190 Cal. App. 3d at p. 681 [no special relationship between police responding to restaurant massacre scene and victims of massacre where police delayed acting on plan to " 'neutralize' " murderer]; Von Batsch, supra, 175 Cal. App. 3d at p. 1122 [no special relationship between county and decedent's surviving wife when county's officers responded to a burglar alarm, searched the premises, and erroneously advised decedent's co-employees that no intruders were on the premises]; Williams, supra, 34 Cal. 3d at p. 24 [no special relationship between stranded or injured motorist and police based on fact that police stopped to aid her]; Shelton v. City of Westminster (1982) 138 Cal. App. 3d 610, 621 [188 Cal. Rptr. 205] [no special relationship between parents filing missing person report and police undertaking investigation of son's whereabouts]. ) Responding to a citizen's call for assistance is "basic to police work and not 'special' to a particular individual." (M.B., supra, 233 Cal. App. 3d at p. 706.)

In keeping with this notion that police officers are not ordinarily personally accountable to individual citizens in need of assistance "[r]ecovery has been denied, . . . for injuries caused by the failure of police personnel to respond to requests for assistance, the failure to investigate properly, or the failure to investigate at all, where the police had not induced reliance on a promise, express or implied, that they would provide protection. [Citations.]" (Williams, supra, 34 Cal. 3d at p. 25.)

Perhaps fortified by the recognition that the special relationship exception is reserved for a limited class of unique cases, precious few courts have actually imposed a duty of care on law enforcement officers under this doctrine. Of the legion of cases addressing this issue, our research has uncovered only five such cases. These cases involved police officers who made misrepresentations that induced a citizen's detrimental reliance ( Johnson v. County of Los Angeles (1983) 143 Cal. App. 3d 298 [191 Cal. Rptr. 704] (Johnson), placed a citizen in harm's way ( Carpenter v. City of Los Angeles (1991) 230 Cal. App. 3d 923 [281 Cal. Rptr. 500] (Carpenter); Wallace v. City of Los Angeles (1993) 12 Cal. App. 4th 1385 [16 Cal. Rptr. 2d 113] (Wallace); McCorkle, supra, 70 Cal. 2d 252, or lulled a citizen into a false sense of security and then withdrew essential safety precautions (Mann, supra, 70 Cal. App. 3d 773).

Importantly, the challenged conduct in these decisions did not involve deliberate tactical choices made by police officers while intervening in an unfolding life-threatening crisis. In our view, they were never intended to apply when an officer's strategic response to a citizen's request for assistance fails to prevent the occurrence of a preexisting risk. Yet, respondents argue that Johnson, supra, 143 Cal. App. 3d 298, supports their contention that police officers enter into a special relationship with a citizen in need of assistance whenever "police take control of the situation." We are not persuaded.

In Johnson, county sheriffs arrested Michael Johnson because he was driving the wrong direction on the freeway. (Johnson, supra, 143 Cal. App. 3d at p. 304.) He told the sheriffs that he was attempting to commit suicide because " 'people' " were trying to torture and kill him, and pleaded with the sheriffs to kill him. (Ibid.) The sheriffs took Johnson into custody, charging him with assault with a deadly weapon. (Ibid.) Shortly thereafter, Johnson's wife informed the sheriffs that her husband was a paranoid schizophrenic who had been repeatedly hospitalized and required medication to control his suicidal tendencies. (Ibid.) The sheriffs promised to hospitalize and medicate Mr. Johnson and told his wife not to worry or interfere. (Ibid.) Despite this promise, Johnson was not medicated or involuntarily committed. Instead, the sheriffs released Johnson three days after his arrest without notification to his wife. (Ibid.) He committed suicide two days after his release. (Ibid.) The Johnson court held the sheriffs had a duty to warn Johnson's wife before his release that the promised medical care had not been provided because a "special relationship" existed between the sheriffs, Johnson and his wife. (Id. at p. 311.)

Johnson is manifestly distinguishable from the facts of this case. At the outset, the Johnson court did not impose a duty on police officers to take measures to prevent the threatened suicide. Rather, the court held that the police officers had a duty to warn Johnson's wife so she could make arrangements to provide him with necessary treatment. Moreover, the holding in Johnson was not based on the fact that police officers had "take[n] control of the situation." Instead, it resulted from a combination of the following factors: (1) the breach of an express promise to medicate and/or obtain medical attention for Johnson; (2) the fact that this promise lulled Johnson's wife into a false sense of security that treatment was being provided for Johnson; and (3) Johnson's wife's detrimental reliance on this promise, which caused her to refrain from making her own arrangements for Johnson's care. Thus, the Johnson case fell within established exceptions to the general rule that police have no duty to control a third party's conduct, which are not applicable to this case. (See, e.g., Morgan v. County of Yuba (1964) 230 Cal. App. 2d 938, 946 [41 Cal. Rptr. 508]; Mann, supra, 70 Cal. App. 3d 773.)

Here, the responding officers made no express or implied promises that they would prevent Patrick's suicide or that they would approach Patrick in a nonconfrontational manner. Nor have respondents alleged that detrimental reliance occurred. 29Link to the text of the note While our Supreme Court has held that "a promise and reliance thereon are [not] indispensable elements of a special relationship," the plaintiff must still plead and prove that police conduct in a situation of dependency lulled the plaintiff into a false sense of security, thereby inducing the plaintiff's detrimental reliance on the police for protection. (Williams, supra, 34 Cal. 3d at p. 25.) Unlike the plaintiffs in Johnson, respondents in this case have neither alleged the existence of a duty under this theory in their complaint, nor briefed the matter in this appeal. (See, e.g., Hernandezv. City of Pomona, supra, 49 Cal. App. 4th at p. 1502; Stout, supra, 148 Cal. App. 3d at p. 945.)

Accordingly, those authorities which imposed a duty under the special relationship exception involved materially different facts from the circumstances of this case. They do not support the imposition of a tort duty here.

3. Basing the Special Relationship Exception on an Increased Risk of Harm

An alternative argument advanced to support a legal duty, which is made only obliquely by respondents 30Link to the text of the note but embraced by the dissent, is that a special relationship arose because the police officers engaged in affirmative conduct that increased the risk of harm to Patrick.

The notion that the special relationship exception may be expansively interpreted to impose a duty of care whenever a law enforcement officer's affirmative conduct increases a preexisting risk of harm is derived from McCorkle, supra, 70 Cal. 2d 252 and Mann, supra, 70 Cal. App. 3d 773. In McCorkle, Officer Lombardo was dispatched to the scene of an automobile accident, in which the plaintiff had received minor injuries. (McCorkle, supra, 70 Cal. 2d at p. 259.) After his arrival, the officer discussed the events leading up to the accident with the plaintiff while they stood at the corner of an intersection. Then Officer Lombardo directed the plaintiff to follow him into the intersection to show him where the accident occurred. (Ibid.) The officer did not set out flares to direct other motorists to avoid driving through the scene of the accident. (Ibid.) While in the intersection, the light changed and the plaintiff was hit by oncoming traffic. (Id. at pp. 260-261.)

Although the McCorkle opinion never addressed the question of duty or even mentioned the special relationship doctrine, McCorkle is routinely cited for the proposition that liability may be imposed upon police officers where their affirmative conduct places a person in peril or increases an individual's risk of harm. (See, e.g., Williams, supra, 34 Cal. 3d at p. 24; Davidson, supra, 32 Cal. 3d at p. 206; M.B., supra, 233 Cal. App. 3d at pp. 704-705.)

Despite this broad dictum, not one of the cases in which courts have imposed a duty on police officers based on the special relationship exception relied solely on affirmative police conduct that increased a preexisting risk of harm. For example, in McCorkle, the plaintiff was speaking with the investigating police officer from the safety of the corner when Officer Lombardo directed the plaintiff into the middle of the intersection. By directing the plaintiff into a dangerous intersection, he actually exposed the plaintiff to a new risk of injury by placing the plaintiff in harm's way.

Similarly, the remaining cases in which a duty was imposed under the special relationship exception based on the impact of a defendant's conduct on the plaintiff's risk of harm have all involved instances where law enforcement officers placed the plaintiff in a position of peril. (Carpenter, supra, 230 Cal. App. 3d 923; Wallace, supra, 12 Cal. App. 4th 1385; see also Johnson v. State of California (1968) 69 Cal. 2d 782 [73 Cal. Rptr. 240, 447 P.2d 352] [probation officer placed juvenile in foster parents' home without warning foster parents of child's homicidal tendencies].)

Neither are we persuaded that the 1977 decision in Mann, supra, 70 Cal. App. 3d 773, relied upon by the dissent, warrants a different conclusion. In Mann, the court found that a special relationship was formed where highway patrolmen came to the aid of stranded motorists by positioning their police car behind two stalled cars and activating their lights, but later withdrew this protection without warning. 31Link to the text of the note

Our Supreme Court has cited Mann with approval, describing it as a case in which "the conduct of a police officer, in a situation of dependency, results in detrimental reliance on him for protection." (Williams, supra, 34 Cal. 3d at p. 25, italics omitted.) The high court explained that a duty was rightfully imposed in Mann because "the officers' conduct contributed to, increased, and changed the risk which would have otherwise existed. They stopped to investigate and they took affirmative steps to provide assistance, lulling the injured parties into a false sense of security and perhaps preventing other assistance from being sought." (Ibid.)

This rationale reveals that the cornerstone of the Mann decision was not simply police conduct that increased a preexisting risk of harm. Rather, the Supreme Court's approval of the result in Mann rested on a variety of factors including: (1) police conduct that not only contributed to and increased the preexisting risk, but also changed the risk that would otherwise have existed; (2) the motorists' situation of dependency; (3) the motorists' detrimental reliance on the officers' conduct that prevented them from seeking other assistance; and (4) the fact that the officers' conduct lulled the motorists into a false sense of security.

Even if respondents had properly alleged a theory of liability under Mann, none of the Mann factors are present in this case. First, while the officers' conduct arguably increased the preexisting risk that Patrick would commit suicide, it did not change the preexisting risk that Patrick would do so. Second, Patrick was not in a comparable situation of dependency. Unlike the stranded motorists in Mann, who were injured when the police abruptly withdrew their only source of protection, Patrick was not a helpless or dependent victim relying on police protection. Patrick was armed with a loaded firearm and presented a threat to the lives of the responding police officers. Rather than relying on police efforts, he was uncooperative and continually requested police to leave the area. Patrick was not lulled into a false sense of security by the protective measures undertaken by the police. Although police officers wanted to assist Patrick by taking him into custody for mental health evaluation and treatment, their efforts were thwarted by Patrick's refusal to surrender his firearm or cooperate with the responding officers. Thus, none of the factors that the Supreme Court identified as justifying the Mann decision are present in this case.

Moreover, even if we assume that the creation of a special relationship bears some association to the degree to which the conduct increases a risk of harm, no authority exists imposing a duty where police conduct only incrementally increased the risk to which the injured person was already exposed. In volatile situations, one can always argue that the arrival of police officers caused an incremental increase in tension at the scene, and thus increased the risk of injury occurring Yet, despite the fact that basic police work often involves anxiety-producing conduct such as the display of weapons, the shining of flashlights, or the shouting of orders, the social utility of involving police in suicidal standoffs weighs against the imposition of liability. To expansively construe the special relationship doctrine to encompass such incremental increases in a preexisting risk would eviscerate our Supreme Court's adoption in Williams, supra, 34 Cal. 3d at page 23, of the public duty rule, which protects police officers from the burden of assuming greater obligations to others by virtue of their employment. 32Link to the text of the note

In addition, if a duty of care was imposed in each case where there was some progressive, increased chance of injury stemming from a preexisting harm, the special relationship doctrine would be in irremediable conflict with the traditional duty analysis derived from Rowland, discussed ante. Where police conduct results in some increase in a preexisting risk of harm, but an analysis of the traditional Rowland factors weighs against the imposition of a duty, we conclude that no special relationship duty may be imposed. (Cf. Hansra v. Superior Court (1992) 7 Cal. App. 4th 630, 646 [9 Cal. Rptr. 2d 216] [resolution of the question whether a special relationship gives rise to a duty of protection requires consideration of the same Rowland factors underlying any duty of care analysis].)

Our conclusion that the question of duty must not ignore matters of policy regardless of whether the duty purportedly arises under the special relationship doctrine is supported by the commentators. For example, in a 1991 law review article, 33Link to the text of the note Professor John M. Adler examined the historic attempts in California case law to alternatively anchor special relationship analysis in terms of the misfeasance/nonfeasance dichotomy and "dependency" relationships, 34Link to the text of the note as well as those based on "control," concluding that relying on any of these distinctions to impose a legal duty is problematic: "For these reasons, special relationship analysis is of little predictive value and may not even accurately describe the concerns that determine the outcome of a significant number of cases." (Relying Upon the Reasonableness of Strangers, supra, Wis. L.Rev. at p. 886, fn. omitted.) 35Link to the text of the note After reviewing the decisions imposing a duty under the special relationship exception, Adler concluded that courts have substituted the rubric of "dependency," "control," or "misfeasance" for traditional policy analysis in determining legal duty. Instead of engaging in this type of "distortion," Adler proposes a definition of the special relationship exception that embodies the very factors employed in a Rowland analysis. (Id. at pp. 869, 900-911.) 36Link to the text of the note

Indeed, pedantic use of the Restatement (Second) of Torts to establish the parameters of tort duty, while eschewing public policy concerns, is contrary to modern jurisprudential duty analysis. "Although the evolution of 'duty' is still in progress, it is now fair to say that an overwhelming majority of American jurisdictions treat questions of duty in negligence law substantially in terms which I will refer to as the Prosser (Green) approach. The Prosser (Green) approach often appears in American decision law via the policy-based, multi-factor balancing tests made popular largely through several critical California Supreme Court decisions, particularly, Tarasoff v. Regents of the University of Calfornia [(1976) 17 Cal. 3d 425 [131 Cal. Rptr. 14, 551 P.2d 334, 83 A.L.R.3d 1166]], Rowland v. Christian [(1968) 69 Cal. 2d 108 [70 Cal. Rptr. 97, 443 P.2d 561, 32 A.L.R.3d 496]], Dillon v. Legg [(1968) 68 Cal. 2d 728 [69 Cal. Rptr. 72, 441 P.2d 912, 29 A.L.R.3d 1316]], and Biakanja v. Irving [(1958) 49 Cal. 2d 647 [320 P.2d 16, 65 A.L.R.2d 1358]]. American courts have had little use for the relevant sections of the Restatement (Second) of Torts when dealing with general or abstract questions of duty; American courts basically prefer Prosser's professed approach . . ." (Lake, Common Law Duty in Negligence Law: The Recent Consolidation of a Consensus on the Expansion of the Analysis of Duty and the New Conservative Liability Limiting Use of Policy Considerations (1997) 34 San Diego L.Rev. 1503, 1505, fns. omitted.) We submit, this is precisely the analytical course charted by our Supreme Court in recent years, and the one which we follow. ( Id. at p. 1533.)

Further, we note that the dissent's argument that the special relationship exception should be interpreted broadly to include affirmative acts that increase a preexisting harm appears to rest primarily on its agreement with the Mann court's 20-year-old observation that " 'the law appears to be heading toward a recognition of the duty to aid or protect in any relation of dependence or of mutual dependence. [Citations.]' [Citations.]" (Dis. opn. of Kline, P. J., post, at p. 307, citing Mann, supra, 70 Cal. App. 3d at p. 780.) In arguing for this expansion, the dissent relies on dated commentary, predicting a legal trend that never actually materialized. In 1983, our Supreme Court firmly shut the door on such predictions when it expressly disapproved Clemente v. State of California (1980) 101 Cal. App. 3d 374 [161 Cal. Rptr. 799], a case which found a special relationship was created between a police officer and an individual citizen based solely on their relationship of dependency. (Williams, supra, 34 Cal. 3d at pp. 26-27.) In disapproving Clemente, the Williams court remarked "One might well question whether the drowning man is not similarly dependent on the swimmer on shore; it is settled that there is no legal duty to come to the rescue. [Citations.]" (Id. at p. 26, fn. 6, italics omitted.)

Finally, we address the dissent's argument that a duty may be imposed in this case because the responding police officers engaged in actionable misfeasance which increased the risk of harm to Patrick, as opposed to nonactionable nonfeasance. The false expediency of this misfeasance/nonfeasance distinction has been persuasively exposed and criticized in recent law review commentary. 37Link to the text of the note For example, in Rowe and Silver, The Jurisprudence of Action and Inaction in the Law of Tort: Solving the Puzzle of Nonfeasance and Misfeasance From the Fifteenth Through the Twentieth Centuries (1995) 33 Duq. L.Rev. 807 (The Jurisprudence of Action and Inaction in the Law of Tort), following an exhaustive examination of cases and legal commentators, the authors conclude that the same challenged conduct may be characterized as either nonfeasance or misfeasance, thus eliminating this distinction as a meaningful way to apply tort doctrine. 38Link to the text of the note They observe that the driver who lawfully operates a motor vehicle owes a duty to act reasonably to prevent the vehicle from striking a child who runs into the street. Yet the driver's actionable conduct may either be characterized as misfeasance in the operation of the vehicle or nonfeasance because of the failure to brake. ( Id. at p. 831.) 39Link to the text of the note

This same dualism applies to cases examined in this opinion, including Lopez and Mann, to name only two. The challenged police conduct in Lopez may be properly characterized either as nonfeasance (failure to enter the restaurant to defuse the crisis), or misfeasance (employment of the wrong tactical strategy to meet the crisis). In Mann, the conduct vis-a-vis the stranded motorists was either the removal of static warnings (misfeasance) or the failure to provide alternative warnings to motorists (nonfeasance).

The facts of this case are equally amenable to such artificial semantics. Rather than characterizing the police conduct as misfeasance (employing a confrontational tactical approach), we could define it as nonfeasance (failing to employ a sensitive approach). However, we decline to resolve this case based on an ambiguous distinction bound to create confusion in application. Instead, we have thoroughly analyzed the existing body of relevant decisional law, weighed the relevant public policy considerations enumerated by our Supreme Court, and concluded that no duty should be imposed under these facts.

For all of these stated reasons, we conclude appellants owed no duty of care to take reasonable steps to prevent Patrick from committing suicide. Because respondents failed to demonstrate the existence of a legal duty--an essential element of a negligence cause of action--the trial court's refusal to grant appellants' motion for nonsuit or directed verdict must be reversed. 40Link to the text of the note

IV.

Disposition

The judgment for respondents is reversed, and the trial court is hereby directed to enter judgment for appellants. Appellants are awarded costs on appeal. Cross-appeal No. A074965 is dismissed as moot.

Haerle, J., concurred.

Concur by: HAERLE

Concur

HAERLE, J.,

Concurring.--I agree completely with both the result and the path by which it is reached in Justice Ruvolo's majority opinion. However, what is not addressed in Presiding Justice Kline's dissent leads me to add this brief separate concurrence.

As both of my colleagues demonstrate repeatedly in their opinions, the special relationship doctrine is reserved for situations in which the authorities have created a relationship of "dependency" with a "vulnerable" individual, here of course the decedent. It is for this reason that, at various points in his dissent, Justice Kline references a "situation of dependency" or a "relationship of dependence" allegedly created here. (Dis. opn. of Kline P. J., post, at pp. 292, 295, 307.) He also suggests that the police action here amounted to an " 'undertaking to rescue' " by which they " 'voluntarily assume[d] a protective duty' " (id. at pp. 292, 310), and that the resulting special relationship triggers a duty to take "affirmative action to assist or protect another." (Id. at p. 292.)

All of this and much more in the dissent might lead the unwary reader to suspect that we are dealing with a "vulnerable" and "dependent" victim, e.g., one who was standing on the proverbial ledge of a skyscraper and was allowed to step off the same. We are not. We are addressing the case of a man with a loaded gun who had already discharged that gun in his own household. This crucial, indeed overriding, fact is totally ignored by the dissent. More importantly, though, the explicit proposition in the dissent that, by entering into this situation and trying to disarm the decedent, the police thereby forged a "special relationship" with him constitutes a radical extension of that principle. It should be, I submit, self-evident that a man with a loaded gun is not exactly "vulnerable" and certainly not in a "dependent" relationship with the police who, for the safety of themselves and the community, are trying to disarm him.

Dissent by: KLINE

Dissent

KLINE, P. J.,

Dissenting.--The majority refuses to expose the police to tort liability for what it describes as "inadequate or unreasonable assistance to suicidal individuals" because it believes such liability "could inhibit them from providing intervention at all." (Maj. opn., ante, at p. 273.) This conclusion rests on distortions of both the facts and the law.

The conduct of the police in this case was not merely "inadequate" and "unreasonable," but mindlessly reckless. The decedent, shown to be a caring person who never hurt others, suffered periodic bouts of depression and had a drinking problem. Though he possessed a weapon, he had never in the past or at the time of his death used it to threaten others. The decedent had been in his backyard for over an hour before the police found him. A few minutes after they found him he was killed in a hail of bullets. The officers at the scene did not, as my colleagues claim, merely fail to prevent this death; as the evidence abundantly shows, and the jury found, the death was aggressively provoked. Subjecting the gross misconduct in this case to tort liability will not unduly inhibit law enforcement intervention or burden local government. As the Supreme Court found in an analogous situation, imposing liability will simply "promote careful work." ( Johnson v. State of California (1968) 69 Cal. 2d 782, 793 [73 Cal. Rptr. 240, 447 P.2d 352].)

The majority purports to assess only the question of appellants' legal duty. Finding none, it declines to discuss the issue of immunity, which it deems moot. What the majority has really done, however, is to eliminate a duty clearly established in our jurisprudence by creating what amounts to a new form of governmental immunity. This is accomplished not just by overlooking the voluntary assumption of duty in this case but also the many ways in which the conduct of the police created a "special relationship" resulting in a duty to use due care. As a result, the majority has virtually wiped out the special relationship doctrine as it applies to law enforcement officials in a broad class of cases, repudiating the views expressed by the Supreme Court in Williams v. State of California (1983) 34 Cal. 3d 18 [192 Cal. Rptr. 233, 664 P.2d 137]. The majority would subject police officers to liability only when their conduct "constitutes an intentional tort or a violation of an individual's constitutional or other federally protected rights." (Maj. opn., ante, at p. 274.) That is not the law. Moreover, this differential treatment of the police cannot be reconciled with the mandate of the Legislature that "a public employee is liable for injury caused by his act or omission to the same extent as a private person," unless the Legislature has "otherwise provided by statute." ( Gov. Code, § 820, subd. (a).)

For the foregoing reasons, I respectfully dissent.

I.

A.

Preliminarily, the majority fails to make it clear that the "duty" at issue here relates not to the reasonableness of appellants' conduct, but whether, as a threshold matter, they had an affirmative duty to prevent respondents' injuries. (On the distinction between these duty analyses, see Marois v. Royal Investigation & Patrol, Inc. (1984) 162 Cal. App. 3d 193, 198-199 [208 Cal. Rptr. 384].) Like appellants, the majority does not dispute that, as the jury found, appellants failed to exercise due care and their negligence was the cause of respondents' injury. The majority reasons that the fact that respondents' injuries were caused by appellants' negligence is beside the point, because the police had no duty to prevent the injuries that occurred.

If by this argument my colleagues mean that the police have no enforceable legal duty to assist persons in danger, I agree. In California, as in virtually all other common law jurisdictions, there is no duty to rescue. As set forth in the Restatement Second of Torts, "The fact that the actor realizes or should realize that action on his part is necessary for another's aid or protection does not of itself impose upon him a duty to take such action." ( Rest.2d Torts, § 314.) "As a general rule one has no duty to control the conduct of another, and no duty to warn those who may be endangered by such conduct." ( Peterson v. San Francisco Community College Dist. (1984) 36 Cal. 3d 799, 806 [205 Cal. Rptr. 842, 685 P.2d 1193], citing Rest.2d Torts, § 315; Davidson v. City of Westminster (1982) 32 Cal. 3d 197, 203 [185 Cal. Rptr. 252, 649 P.2d 894]; Thompson v. County of Alameda (1980) 27 Cal. 3d 741, 751 [167 Cal. Rptr. 70, 614 P.2d 728, 12 A.L.R.4th 701]; Tarasoff v. Regents of University of California (1976) 17 Cal. 3d 425, 435 [131 Cal. Rptr. 14, 551 P.2d 334, 83 A.L.R.3d 1166]; see also 6 Witkin, Summary of California Law (9th ed. 1988) Torts, § 858, p. 220 et seq. and cases there cited; Weinrib, The Case for a Duty to Rescue (1980) 90 Yale L.J. 247; Landes & Posner, Salvors, Finders, Good Samaritans, and Other Rescuers: An Economic Study of Law and Altruism (1978) 7 J. Legal Stud. 83; and Note (1972) The Duty to Rescue, 47 Ind. L.J. 321.)

There are, however, some well-established exceptions to this general rule of no duty, and the genuine question is whether any apply in this case. It is on this issue that my colleagues and I part company, as I believe there are two applicable exceptions.

"First, even when one is not under a duty to act to protect or aid another, if one voluntarily undertakes to do so, he or she will generally be under a duty to exercise reasonable care. Second, a person may in some instances be obligated to take certain affirmative steps to protect or aid another if that person stands in some 'special relationship' to either the person endangered or the person whose conduct may injure the person endangered." (1 Levy et al., California Torts (1998) § 1.10[2], p. 1-42.10, fns. omitted.) As later discussed, these exceptions are much more likely to apply where, as here, the defendant's misfeasance, as opposed to nonfeasance, is the basis of the claim of negligence ( Marois v. Royal Investigation & Patrol, Inc., supra, 162 Cal. App. 3d 193, 198); although "negligence may also constitute an omission or failure to act." ( Williams v. State of California, supra, 34 Cal. 3d at p. 24, citing Morgan v. County of Yuba (1964) 230 Cal. App. 2d 938 [41 Cal. Rptr. 508].)

California courts have repeatedly held that the absence of a duty to take affirmative action to assist or protect another, no matter how great the danger in which the other is placed, has no application where ". . . there is some relationship between them which gives rise to the duty to act." (6 Witkin, Summary of Cal. Law, supra, Torts, § 858, p. 220, italics in original; see also Nally v. Grace Community Church (1988) 47 Cal. 3d 278, 293 [253 Cal. Rptr. 97, 763 P.2d 948] [". . . we have imposed a duty to prevent a foreseeable suicide only when a special relationship existed between the suicidal individual and the defendant or its agents."].) The imposition of tort liability on the basis of such a "special relationship," or because the duty was voluntarily assumed, has nothing to do with Rowland v. Christian (1968) 69 Cal. 2d 108 [70 Cal. Rptr. 97, 443 P.2d 561, 32 A.L.R.3d 496], as the majority claims, 1Link to the text of the note because that case does not concern exceptions to a general rule of no duty. (See discussion, post, at p. 308 et seq.)

As should be apparent, the conduct of the police in this case created a situation of dependency resulting in a "special relationship" between the respondents who sought and obtained their assistance and the decedent on the one hand and appellants on the other. The imposition of liability is, however, independently justified by the voluntariness of the police assumption of duty and the manner in which the police on the scene exacerbated the peril that previously existed.

Section 323 of the Restatement Second of Torts provides as follows: "One who undertakes, gratuitously or for consideration, to render services to another which he should recognize as necessary for the protection of the other's person or things, is subject to liability to the other for physical harm resulting from his failure to exercise reasonable care to perform his undertaking, if [P] (a) his failure to exercise such care increases the risk of such harm, or [P] (b) the harm is suffered because of the other's reliance upon the undertaking." ( Rest.2d Torts, § 323, italics added.) The fundamental idea is that ". . . the undertaking to rescue, although not required, gives rise to the duty to exercise care not to leave the object of the rescue in worse condition than if the rescue had not been attempted." (3 Harper et al., The Law of Torts (2d ed. 1986) § 18.6, p. 722.)

Application to the police of the legal principle embodied in section 323 of the Restatement Second of Torts, and the connection between that principle and the "special relationship" doctrine is best illustrated by Williams v. State of California, supra, 34 Cal. 3d 18, even though the court found in that case that the plaintiff had failed to satisfactorily state a cause of action. The plaintiff in Williams was injured when a piece of a heated brake drum from a passing truck was propelled through the windshield of her automobile. She alleged that the police officers who arrived at the scene and investigated the accident negligently failed to test the brake drum part to determine whether it was still hot, failed to secure the identity of witnesses, and failed to attempt pursuit of the owner of the truck, virtually destroying the plaintiff's ability to obtain compensation for her injuries and damages. The trial court granted the state's motion for judgment on the pleadings. The Supreme Court reversed.

The court first observed that the state highway patrol has the right but not the duty to investigate accidents, or to come to the aid of stranded motorists. (34 Cal. 3d at p. 24.) The chief issue in Williams was whether a legal duty could nonetheless be imposed because, by intervening in the situation, the police assumed the responsibility to act reasonably in the circumstances and thereby created a "special relationship." The court stated that, "although 'no special relationship may exist between members of the California Highway Patrol and the motoring public generally, or between the Patrol and stranded motorists generally' [citation], when the state, through its agents, voluntarily assumes a protective duty toward a certain member of the public and undertakes action on behalf of that member, thereby inducing reliance, it is held to the same standard of care as a private person or organization. [Citations.] [P] The breach of duty may be an affirmative act which places the person in peril or increases the risk of harm as in McCorkle v. Los Angeles (1969) 70 Cal. 2d 252 . . ., where an officer investigating an accident directed the plaintiff to follow him into the middle of the intersection where the plaintiff was hit by another car. The negligence may also constitute an omission or failure to act, as in Morgan v. County of Yuba (1964) 230 Cal. App. 2d 938, 41 Cal. Rptr. 508 . . ., where a deputy sheriff promised to warn a decedent if a prisoner, who had made threats on her life, was released. The county was held liable when the sheriff failed to warn." (Ibid., italics added.)

The Williams court cited Mann v. State of California (1977) 70 Cal. App. 3d 773 [139 Cal. Rptr. 82], as an example of a case in which a special relationship was based on such dependency. In that case, "[h]ighway patrolmen, coming to the aid of a stranded motorist, placed their car with flashing lights behind two cars stalled on the freeway. After calling the tow truck, the officers withdrew without warning; they did not wait for the tow truck to line up behind the stalled car or provide the alternative protection of flares. Minutes later the stalled car was sideswiped by a passing car and the persons nearby were injured." ( Williams v. State of California, supra, 34 Cal. 3d at p. 25.) The crucial factors in Mann, according to the Williams court, were that ". . . the officers' conduct contributed to, increased, and changed the risk which would have otherwise existed. They stopped to investigate and they took affirmative steps to provide assistance, lulling the injured parties into a false sense of security and perhaps preventing other assistance from being sought." (Ibid.)

Applying well-established principles, the Supreme Court concluded in Williams that the plaintiff there failed to establish a duty of care owed by the police officers who arrived at the scene, because the officers "took no affirmative action which contributed to, increased, or changed the risk which would have otherwise existed; there is no indication that they voluntarily assumed any responsibility to protect plaintiff's prospects for recovery by civil litigation; and there are no allegations of the requisite factors to a finding of special relationship, namely detrimental reliance by the plaintiff on the officers' conduct, statements made by them which induced a false sense of security and thereby worsened her position." (34 Cal. 3d at pp. 27-28, fn. omitted.) (However, the Supreme Court directed the trial court to permit the plaintiff to file an amended complaint in light of the lower court's misperception of the legal question presented, and since it could not be said the plaintiff could never state a cause of action. ( Id., at p. 28.))

The situation in the present case is, of course, completely different from that in Williams. The officers here--who, unlike the police in Williams, were witnessing the commission of felonies dangerous to human life ( Pen. Code, § 417, subd. (c), 417.8)--immediately asserted almost complete control over the situation, thereby limiting respondents' ability to deal with it themselves or take other measures.

Although five other officers were already there, Sergeant Osawa's first act was to request additional units. Without requesting permission, Osawa and three other officers, all of whom had their weapons drawn, cocked and ready to be fired, searched the house, refusing to permit respondents to enter the premises. Finding nothing in the house, the officers turned their attention to the backyard. Osawa loudly identified himself and his colleagues as Fremont police, twice called out Patrick's name, and ordered him to come out with his hands in the air. When Patrick was found sitting under a bush with a gun pointed at himself, Sergeant Osawa never considered even temporarily withdrawing. Nor, despite the fact he had no training in negotiations with disturbed persons, did Sergeant Osawa then consult Officer Tajima-Shadle, who had such training and was on the scene. Osawa also declined to invite respondents or others friendly to Patrick to participate in their efforts to induce him to put down his weapon, which respondents' experts testified was the appropriate course. Instead, the officers flipped a picnic table on its side, knelt behind it for protection, and again directed Patrick to come out with his hands up. Sergeant Osawa then threatened to send in a police dog if Patrick did not immediately comply with his order. When Patrick remained silent, officers released the dog, commanded it to search, and followed the dog toward Patrick with weapons drawn. When they saw Patrick sitting with a gun cradled in his arms and pointed at his chest, the officers directed him to "Freeze," and "Drop the gun." After the dog became excited and continued barking loudly, Patrick uttered his first words: "Get the fucking dog out of here" and "What are you going to do, fucking shoot me?" The officers then went back behind the picnic table. One of the officers then went back to Patrick, pointed a shotgun at him, and started talking. Other officers in the backyard and at the windows of the residence had guns drawn and were pointing searchlights at Patrick, so he would be unable to see them. Several officers testified they had decided to shoot Patrick if he made any moves they considered threatening. During this time Patrick kept saying, in effect, "Leave me alone. Get out of my yard. I don't want to talk to you."

Sergeant Osawa then directed Officer Lopes to leave his station in the adjacent backyard, because he might get caught in a crossfire. About a minute later, at a time when eight officers had weapons pointed at Patrick, thirty-four shots were fired over a period of from five to ten seconds. Patrick's body was pierced by 27 bullets, one of which came from his own gun. At all material times, respondents were restrained by the police from entering the backyard to intervene, as respondent Adams attempted to do.

By this conduct the police controlled the environment of the threatened suicide as completely as was possible. Respondents, who had been excluded from the premises and compelled to rely upon Sergeant Osawa and the numerous officers he was commanding, were not in a position to tell the police to leave and try to deal with Patrick themselves, solicit the intervention of friends, or simply do nothing and hope Patrick would recover his senses, as he had in the past. The peremptory assertion of such total control over the situation by the police, and the exclusion of respondents from any meaningful role in the attempt to dissuade Patrick from harming himself, clearly created the "situation of dependency" described by the Supreme Court in Williams v. California, supra, 34 Cal. 3d at page 25, which "results in detrimental reliance [on the police] for protection." (Ibid.) 2Link to the text of the note

Not only did the police create a situation of dependency, which would be enough, as in Mann they also took affirmative action materially increasing the risk that previously existed. In addition, they changed the nature of the risk that previously existed by creating the possibility Patrick might be injured or killed by the police, or provoked into killing himself.

The evidence which most devastatingly establishes that the police significantly increased the risk of harm in this case was the testimony of respondents' experts. Peter Reedy, a retired police officer trained by the FBI, who taught crisis management and been involved in "sixty to eighty" negotiations in hostage and suicide incidents involving persons under the influence of alcohol or drugs, testified at considerable length. In his view, Sergeant Osawa violated virtually every relevant law enforcement protocol, including those of the Fremont Police Department. By threatening the use of deadly force much too precipitiously and aggressively, the police dangerously increased the level of anxiety and tension, which is the opposite of what proper police practice calls for. This testimony was buttressed by that of Dr. Robert E. Litman, who specializes in the study of suicide prevention and lectures to law enforcement agencies. Dr. Litman explained at length why, in his opinion, "the police were a major cause, a substantial cause [of Patrick's suicide.]"

There can be no doubt that the jury accepted the testimony of respondents' experts and rejected the opposing views of Joseph Callahan, a "consultant" with associate of arts degrees in "mortuary science" and "police science" who "lectures to police and military groups on issues of tactics," and Dr. Donald Lunde, a psychiatrist, who testified in behalf of appellants. The jury specified 13 ways in which Sergeant Osawa and his "SWAT" team unnecessarily inflamed the situation, increasing the danger Patrick might shoot himself and creating the new and different danger that he might unnecessarily be shot by the police: "[1] Lacked control of the officers. [2] Insufficient communications. [3] Lack of information. [4] Did not respond to suicide call as such. It was an assault response rather than assist. [5] Did not follow Fremont Police Dept. procedures for dealing with a critical incident. [6] Delayed calling in medical help. [7] Decision to use dog prior to using a negotiator. [8] Allowed untrained officers to attempt negotiation. [9] Did not evacuate all the neighbors. [10] Did not maintain the psychological sanctity of the family members at the scene. [11] The use of 7 armed officers left no option but force. [12] Once location of Pat was known, did not back down to allow calming of situation. [13] Yelling and shouting at Pat did not allow for calm."

The majority unjustifiably attempts to brush this evidence aside. Claiming that the question of duty presents a pure "question of law to be determined by the court alone" (maj. opn., ante, at p. 265), the majority initially takes the position that the most important factual findings are irrelevant. According to the majority, we would "abdicate our distinct role" if we considered either "the inapposite findings of the jury" or the "testimony of respondents' expert witnesses, who testified that the police caused Patrick's suicide and violated the applicable standard of care by increasing the anxiety level at the scene or rushing the situation." (Ibid.) By thus conveniently eliminating consideration of the findings and evidence which most powerfully shows that the conduct of the police created a "special relationship," the majority concludes there was no such relationship and therefore no duty. But the facts cannot so easily be dismissed.

Legal rules are no more than conditional statements referring to supposed facts. The Restatement Second of Torts declares, for example, that the word "duty" is used "to denote the fact that the actor is required to conduct himself in a particular manner at the risk that if he does not do so he becomes subject to liability to another to whom the duty is owed for any injury sustained by such other, of which the actor's conduct is a legal cause." ( Rest.2d Torts, § 4, p. 7.) The purely legal rule, which defines the "particular manner" in which an actor must ordinarily conduct himself, does not, however, always fully determine the existence of a duty. Whether the duty exists depends in part upon whether the actor conducted himself in the appropriate manner, which is, of course, a factual question. Thus, as has been stated, "[t]he duty issue frequently poses questions of the kind usually given to the jury. Under the prevailing rule duty to use due care is bounded by the foreseeable range of danger. Reasonable foreseeability of harm is the very prototype of the question a jury must pass on in particularizing the standard of conduct in the case before it." (3 Harper et al., The Law of Torts, supra, § 18.8, p. 744.) 3Link to the text of the note Moreover, ". . . the question of foreseeability always involves more than the determination of simple facts--i.e., what the parties did or did not do, and what the surrounding circumstances were. It also involves a determination of what the parties should have perceived under those circumstances, i.e., whether the reasonably prudent person in the shoes of [the] party would have recognized unreasonable danger to the plaintiff from the source of harm or hazard that befell him. Within broad limits . . . this question is generally also one for the jury. [P] The Restatement [Second of Torts] clearly recognizes that the jury may be called [upon] to make evaluations as well as to find simple facts--to decide what the parties should have done as well as what they did do." (Id., at p. 747, italics in original, citing Rest.2d Torts, § 323C.)

The question of duty cannot be resolved in this case without resort to both the facts of the situation in which the parties found themselves and an evaluation of what the police on the scene should have perceived and should have done in the context of that situation.

As we have seen, the "special relationship" which gives rise to a duty may be created when police conduct "contributed to, increased, or changed the risk which would have otherwise existed." ( Williams v. State of California, supra, 34 Cal. 3d at p. 27.) The evidence which most clearly shows what the police did or did not do in this case, the dangers they should have perceived, and the action, if any, they should have taken--all of which relate to whether the police unreasonably contributed to, increased or changed the preexisting risk, and therefore bear upon the question of duty--consists primarily of the testimony of the experts. The trial court acknowledged that the question of duty could not be resolved without a jury determination of these factual questions. So too did appellants, who never made any objection to the presentation of these issues to the jury. Nor did appellants ever object to the receipt in evidence of the testimony of the experts. The refusal of the majority to consider this testimony in connection with the question of duty, and to defer to the factual determinations made by the jury, which are supported by substantial evidence, is altogether unjustifiable. 4Link to the text of the note

Equally unjustifiable is the majority's assumption that a special relationship cannot be created without the collective presence of all of the factors which under Williams can create a "special relationship." For example, allowing that "the officers' conduct arguably increased the preexisting risk that Patrick would commit suicide, it did not change the preexisting risk that Patrick would do so." (Maj. opn., ante, at p. 284.) In other words, according to the majority, the volunteered assistance of the police in this case must not only increase the preexisting risk but also change the nature of the preexisting risk and there must be detrimental reliance on the police conduct by the plaintiff. As indicated, I believe all these factors are present in this case, though the presence of only one would be sufficient to create a "special relationship."

Citing section 323 of the Restatement Second of Torts, the Supreme Court explained in Williams that one who voluntarily comes to the aid of another "is under a duty to exercise due care in performance and is liable if (a) his failure to exercise such care increases the risk of such harm, or (b) the harm is suffered because of the other's reliance upon the undertaking." ( Williams v. State of California, supra, 34 Cal. 3d at p. 23, italics added.) In other words, it is sufficient if the actor either increases the risk (as by exacerbating a danger that already existed or creating a new danger) or the harm results from the plaintiff's detrimental reliance on the assistance (as by foreclosing other forms of assistance). The fact that the Williams court found that none of the factors that can create a "special relationship" were present in that case does not suggest, as my colleagues believe, that all are necessary. As one authority has pointed out, the courts in Williams and Mann justify the imposition of a duty under the "special relationship" doctrine where "an individual officer had commenced a protective undertaking, and by his or her conduct either increased the risk to which the citizen was exposed during that episode, or induced the citizen to forego taking protective measures during the episode because the officer was apparently providing such limited protection." 5Link to the text of the note (5 Levy et al., California Torts, supra, § 60.41 at p. 60-34.4, italics added.)

The majority is wrong in suggesting that the Supreme Court altered its attitude about the special relationship doctrine when in Williams it expressly disapproved Clemente v. State of California (1980) 101 Cal. App. 3d 374 [161 Cal. Rptr. 799]. (Maj. opn., ante, at p. 287.) Reaffirming the special relationship doctrine, the Williams court disapproved Clemente simply because unlike Mann (and the present case), where the police had actually "undertaken to protect the [injured party] from future physical harm," the police in Clemente simply failed to investigate the cause and source of harm that had already occurred. ( Williams v. State of California, supra, 34 Cal. 3d at p. 26.)

In sum, even if (contrary to Allen v. Toten, supra, 172 Cal. App. 3d 1079, 1090), appellants were Good Samaritans without any responsibility to enmesh themselves in the situation in the first place (as Williams compels me to conclude), 6Link to the text of the note their conduct in this case exposed them to liability because they voluntarily assumed responsibility to assist respondents and the decedent and their conduct substantially increased the preexisting risk. The fact that appellants' conduct also changed the nature of the risk that already existed and compelled respondents to rely on their expertise is simply additional reason to find that a "special relationship" had been created.

The majority also says this case is different from Mann and other cases finding that the conduct of the police created a special relationship imposing a duty of care (i.e., McCorkle v. City of Los Angeles (1969) 70 Cal. 2d 252 [74 Cal. Rptr. 389, 449 P.2d 453]; Wallace v. City of Los Angeles (1993) 12 Cal. App. 4th 1385 [16 Cal. Rptr. 2d 113]; Johnson v. County of Los Angeles (1983) 143 Cal. App. 3d 298 [191 Cal. Rptr. 704]) because, unlike the situations in those cases, ". . . the responding officers made no express or implied promises that they would prevent Patrick's suicide or that they would approach Patrick in a nonconfrontational manner." (Maj. opn., ante, at p. 281.) The short answer to this objection is that, as emphasized by the Supreme Court in Williams, a "special relationship" can be created by conduct even without a promise and reliance thereon. "Such a relationship has also been found," the court stated, "when the conduct of a police officer, in a situation of dependency, results in detrimental reliance on him for protection." ( Williams v. State of California, supra, 34 Cal. 3d at p. 25, italics in original.)

The "situation of dependency" and resultant reliance on the police officers at the scene, by respondents as well as by the decedent, is much more clearly established by the evidence in this case than in the cases the majority relies upon. The control asserted by the police here also distinguishes this case from Nally v. Grace Community Church, supra, 47 Cal. 3d 278, which addressed the duty of nontherapist counselors and a religious organization, not police officers. The Nally court observed that ". . . we have imposed a duty to prevent a foreseeable suicide only when a special relationship existed between the suicidal individual and the defendant or its agents." ( Id., at p. 293.) The court noted, as examples, cases in which such a duty was imposed on physicians or hospitals "after plaintiffs proved that the deceased committed suicide in a hospital or other in-patient facility that had accepted the responsibility to care for and attend to the needs of the suicidal patient." (Ibid., citing Meier v. Ross General Hospital (1968) 69 Cal. 2d 420 [71 Cal. Rptr. 903, 445 P.2d 519] and Vistica v. Presbyterian Hospital (1967) 67 Cal. 2d 465 [62 Cal. Rptr. 577, 432 P.2d 193].) The Nally court refused to extend that duty of care "to personal or religious counseling relationships in which one person provided nonprofessional guidance to another seeking advice and the counselor had no control over the environment of the individual being counseled." ( Nally, supra, at p. 294, italics added.) The Nally court distinguished Meier and Vistica because unlike those cases, the plaintiff in Nally was not sufficiently under the control of the defendant, and the defendant did not fully accept responsibility: "Nally was not involved in a supervised medical relationship with defendants, and he committed suicide well over two weeks after he was released from the hospital against the advice of his attending psychiatrist and physician." ( Nally, supra, at p. 294.) The total control over Patrick the police exercised at all material times, which exceeded even the level of control found sufficient by the Supreme Court to justify the imposition of duty in Meier and Vistica, clearly distinguishes this case from Nally, even apart from the fact that we are dealing in this case with the duty of police officers, not personal or religious counselors.

This case is different from Nally (and the other cases the majority relies upon) in yet another important way. Respondents do not predicate liability upon appellants' failure to intervene to save Patrick, but rather upon their affirmative acts that increased the preexisting risk, as respondents' experts testified.

The majority correctly points out that "[a] long line of cases has held that a special relationship with a person in peril is not established simply because police officers responded to a call for assistance and took some action at the scene." (Maj. opn., ante, at p. 279, citing Williams v. State of California, supra, 34 Cal. 3d 18; M.B. v. City of San Diego (1991) 233 Cal. App. 3d 699 [284 Cal. Rptr. 555]; Lopez v. City of San Diego (1987) 190 Cal. App. 3d 678 [235 Cal. Rptr. 583]; Von Batsch v. American Dist. Telegraph Co. (1985) 175 Cal. App. 3d 1111 [222 Cal. Rptr. 239]; Shelton v. City of Westminster, supra, 138 Cal. App. 3d 610.) The police in the present case did not, however, merely respond to a call for assistance and take some inconsequential action which could not reasonably have induced reliance or otherwise created a special relationship. As described, the police not only preemptively asserted complete control, but initiated extreme measures involving the use of automatic weapons, guard dogs and searchlights, all of which were employed in a particularly aggressive manner and in violation of protocols of the Fremont Police Department. This conduct significantly increased the risk of harm, not just to Patrick, but to others, including the police themselves.

Throughout its opinion the majority describes the increase in the risk created by the police as merely "incremental." Thus, for example, it says that "no authority exists imposing a duty [under the special relationship doctrine] where police conduct only incrementally increased the risk to which the injured person was already exposed." (Maj. opn., ante, at p. 284.) The word "incremental" is notably inexact. If my colleagues used that term to refer to increases in risk that are insignificant I would agree. But that is clearly not their intent, as the increase in the risk of harm created by the conduct of the police in this case, to which they refer, is anything but insignificant. To be sure, the case law does not with precision mark the degree to which a person who volunteers assistance must increase preexisting risk in order to be liable under the special relationship doctrine. But if the degree to which appellants' conduct increased the risk in this case is insufficient it is hard to imagine any increase in the risk of harm caused by noncriminal conduct that would suffice. As I have said, the majority's assertion that there is "no evidence" that appellants acted with "reckless indifference to the consequences of their actions" (maj. opn., ante, at p. 271)--which is the foundation of the majority opinion--unjustifiably rejects findings of the trier of fact amply supported by the evidence. Indeed, the majority not only ignores certain critical findings of the jury but contradicts them. Thus, for example, ignoring the specific finding of the jury that the conduct of the police constituted " 'an assault response rather than [an] assist' " (maj. opn., ante, at p. 260), the majority contends that the "assaultive" party was not the police but Patrick (maj. opn., ante, at p. 270), so that he should bear 100 percent of the fault, not just the 25 percent determined by the jury.

My colleagues are simply unwilling to accept the determination of the jury that the danger to the police was more the result of their own conduct than that of Patrick. For example, the majority's assertion that ". . . the majority of the disputed conduct in this case was the product of Sergeant Osawa's deliberate tactical decisions designed to maximize the safety of the responding officers" (maj. opn., ante, at p. 276) conflicts with the extensive expert testimony--never objected to by appellants and accepted by the trier of fact--that Osawa's conduct did not protect the safety of anyone and unnecessarily created the very danger (to the police themselves as well as to Patrick and others) the majority unfairly uses to exonerate Osawa. As earlier noted, Patrick had been sitting in the backyard for over an hour prior to the arrival of the police, during which time the effects of the alcohol he had earlier consumed was diminishing. As respondents' experts persuasively explained, the danger to Patrick and others during that time was far less than that created by the arrival and provocations of Sergeant Osawa's SWAT team.

While I certainly agree with my colleagues that there is a "social value of protecting the lives of police officers involved in a standoff with an armed individual" (maj. opn., ante, at p. 276), I do not understand how the social value of protecting the police is advanced by refusing to impose liability on law enforcement officers whose unreasonable conduct unnecessarily endangers themselves (as well as those they purport to assist). Furthermore, as requested by appellants' counsel, the trial court specifically instructed the jury that in situations involving threatened suicides the highest interest of the police is the protection of "[t]he physical safety of the community, including themselves, other citizens and family members." 7Link to the text of the note (Italics added.) The jury must therefore be deemed to have taken this factor into consideration when it nonetheless rendered its verdict against the police.

It is also important to remember that the jury did not find the police wholly responsible for Patrick's death, as it assigned 25 percent of the responsibility to Patrick's own conduct, holding appellants responsible only for the remaining 75 percent.

In short, it is simply untrue that, as the majority claims, "imposing liability for the negligent handling of a threatened suicide improperly elevates the interests in preserving the life of the person threatening suicide over the interests of public safety and the physical safety of police officers." (Maj. opn., ante, at p. 272.) The finder of fact in this case was asked to and presumably did take into account the factors my colleagues think can be considered only by constricting the legal duty of the police.

Although the distinction between misfeasance and nonfeasance is sometimes tenuous, that is not true in this case. The majority ignores the significance our law attaches to this distinction.

As Professor Francis S. Bohlen pointed out in his classic 1908 essay on the duty to aid others, misfeasance differs from nonfeasance not only with respect to the character of the conduct complained of but as well "in the nature of the detriment suffered in consequence thereof." (Bohlen, The Moral Duty to Aid Others as a Basis of Tort Liability (1908) 56 U. Pa. L.Rev. 217, 220.) Bohlen explained that the difference between the results of nonfeasance and misfeasance, while "fundamental," is not obvious. "In the case of active misfeasance the victim is positively worse off as a result the wrongful act. In cases of passive inaction plaintiff is in reality no worse off at all. His situation is unchanged; he is merely deprived of a protection which, had it been afforded him, would have benefited him. In the one case the defendant, by interfering with plaintiff or his affairs, has brought a new harm upon him, and created a minus quantity, a positive loss. In the other, by failing to interfere in the plaintiff's affairs, the defendant has left him just as he was before; no better off, it is true, but still in no worse position; he has failed to benefit him, but he has not caused him any new injury nor created any new injurious situation. There is here a loss only in the sense of an absence of a plus quantity. It is this latter difference which in fact lies at the root of the marked difference in liability at common law for the consequences of misfeasance and non-feasance." ( Id., at pp. 220-221, italics added.)

The majority's indifference to the affirmative nature of appellants' unreasonable conduct is evident in its attempted analogy to certain other cases involving suicide. Citing Nally and two out-of-state cases ( Lee v. Corregedore (1996) 83 Hawaii 154 [925 P.2d 324] and Donaldson v. YMCA (Minn. 1995) 539 N.W.2d 789, 792), the majority says that "[i]n cases involving suicide, courts have been extremely reluctant to impose liability based on the special relationship exception." (Maj. opn., ante, at p. 277.) The cases the majority relies upon for this statement all involved acts of omission or nonfeasance, however, not unreasonably aggressive and unduly provocative acts of the sort that occurred in this case.

Cognizant that the distinction our Supreme Court has drawn between misfeasance and nonfeasance conflicts with its analysis, the majority ends up dismissing the distinction as merely "semantic," because the same challenged conduct can almost always be characterized as either nonfeasance or misfeasance. (Maj. opn., ante, at p. 288.) The majority says, for example, that the conduct of the police in this case could be characterized as nonfeasance rather than misfeasance by describing it as the mere "fail[ure] to employ a sensitive approach." (Ibid.) This is, of course, sophistry.

Though the significance of the misfeasance/nonfeasance distinction has been repeatedly acknowledged by our Supreme Court (see, e.g. , Williams v. State of California, supra, 34 Cal. 3d 18, 23; Tarasoff v. Regents of University of California, supra, 17 Cal. 3d 425, 435, fn. 5), my colleagues are correct that the distinction has been subjected to criticism. (See, e.g., 3 Harper et al., The Law of Torts, supra, § 18.6, p. 712 et seq.) But the burden of the criticisms is not that the distinction unjustifiably supports the imposition of liability for affirmative acts--which is the reason the majority dismisses it--but that the distinction may sometimes unjustifiably insulate a defendant from liability for the failure to act. 8Link to the text of the note Moreover, none of the commentators critical of the distinction urge that it be replaced by an analysis which would assist appellants. Consider, for example, the law review article upon which the majority relies. (Rowe & Silver, The Jurisprudence of Action and Inaction in the Law of Tort: Solving the Puzzle of Nonfeasance and Misfeasance From the Fifteenth Through the Twentieth Centuries (1995) 33 Duq. L.Rev. 807.)

The authors of that article complain that the misfeasance/nonfeasance distinction has been used "in a mindless, mechanical manner to countenance the statement that nonfeasance, which it equates with inaction, raises no liability." (The Jurisprudence of Action and Inaction in the Law of Tort: Solving the Puzzle of Nonfeasance and Misfeasance From the Fifteenth Through the Twentieth Centuries, supra, 33 Duq. L.Rev. at p. 808, fn. omitted.) Analyzing two famous Cardozo opinions involving notions of nonfeasance and misfeasance, 9Link to the text of the note they state that Cardozo would distinguish an actionable negligent omission from inactionable nonfeasance "BY REFERENCE TO THIS QUESTION: Did the defendant's action go forward to such a stage that inaction would produce an affirmative injury as opposed to the denial of a benefit? If the answer is 'no,' the defendant is an innocent nonfeasor. If it is 'yes,' then he might be a negligent misfeasor, depending, of course, on the prudence or imprudence with which the defendant acted." ( Id., at p. 839.)

The article goes on to make clear its repudiation of the view adopted by my colleagues in this case. While the article maintains that the misfeasance/nonfeasance distinction is overly simplistic and has created confusion, it also contends that the distinction reflects a legitimate concern that could be better expressed. According to the authors of the article, the many courts that have employed the misfeasance/nonfeasance distinction "seem always to have been reaching for this proposition: One is duty bound to behave prudently only with respect to such risks as are attributable to him. They have been asking, sub silento, this simple question: Absent the defendant's existence as a person (or entity), would the plaintiff have nonetheless suffered the damage of which he complains? If the answer is yes, (although this question can only be asked unconsciously) then the risk through which the plaintiff was damaged cannot be attributable to the defendant and the defendant is a nonfeasor only. In such cases, the damage may well be caused by the defendant's behavior--his failure to act--which proposition is easily established by reference to a second question: Absent the defendant's failure to act, would the plaintiff have nonetheless suffered the damage of which he complains? The answer to that question might easily be 'no'--which means that the defendant's failure to act has caused the damage at issue--even as the answer to the question previously asked is yes." (The Jurisprudence of Action and Inaction in the Law of Tort: Solving the Puzzle of Nonfeasance and Misfeasance From the Fifteenth Through the Twentieth Centuries, supra, 33 Duq. L.Rev. at p. 851.) In other words, "[a]ction and omission may both be negligent, but one has a duty to refrain from negligence only as to those risks created by one's existence on earth." ( Id., at p. 854.)

A duty arises in this case under the foregoing tests even if (as is not the case) the conduct in this case could be considered a "not doing" rather than a "misdoing." Appellants affirmatively intervened in the situation to such an extent that their negligent "omissions" produced affirmative injury, not merely the denial of a benefit, and their conduct was manifestly imprudent. Moreover, respondents' experts provided evidence that this conduct was "a substantial cause" of Patrick's death. Stated differently, absent appellants' existence, the decedent's body would not have been riddled with 27 bullets, and his survival far more likely, if not certain.

The basic idea was explained less elaborately in Williams v. California, supra, 34 Cal. 3d 18, where the Supreme Court stated that "[a]bsence of duty [rather than statutory immunity] is a particularly useful and conceptually more satisfying rationale where, absent any 'special relationship' between the officers and the plaintiff, the alleged tort consists merely in police nonfeasance. [Citations.]" ( Id., at p. 23, italics added.) By the same token, absence of duty is commensurately inappropriate in cases such as this, where the special relationship results, inter alia, from police misfeasance.

The majority takes me to task for urging an expansion of the special relationship doctrine. Claiming I rely on "dated commentary," they say I am "predicting a legal trend that never actually materialized." (Maj. opn., ante, at p. 287.) This is demonstrably untrue. The expansion the majority abhors occurred in this and most other American jurisdictions long ago. As noted by our Supreme Court more than 20 years ago, this expansion was the salutary judicial response to the moral problem created by the absence in the law of a duty to rescue. In Tarasoff v. Regents of University of California, supra, 17 Cal. 3d 425, the high court observed that the general common law rule that a person owes no duty to control the conduct of another "derives from the common law's distinction between misfeasance and nonfeasance, and its reluctance to impose liability for the latter. [Citation.] Morally questionable, the rule [of no liability for nonfeasance] owes its survival to 'the difficulties of setting any standards of unselfish service to fellow men, and of making any workable rule to cover possible situations where fifty people might fail to rescue . . . .' [Citation.] Because of these practical difficulties, the courts have increased the number of instances in which affirmative duties are imposed not by direct rejection of the common law rule, but by expanding the list of special relationships which will justify departure from that rule. [Citation.]" ( Id., at p. 435, fn. 5, italics added; accord, 3 Harper et al., The Law of Torts, supra, § 18.6, pp. 712-732, and authorities there cited and discussed.) As pointed out in Mann (which, as earlier noted, was cited with approval by the Supreme Court in Williams), "The California Supreme Court, Prosser and the Restatement Second of Torts all recognize that 'special relationship' is an expanding concept in tort law. (See Tarasoff v. Regents of University of California, supra, 17 Cal. 3d at p. 435, fn. 5; Prosser, Law of Torts (4th ed. 1971) § 56, pp. 339-340; Rest.2d Torts (1965) § 314A, coms. a, b.) As the Restatement suggests, the law appears to be heading toward a recognition of the duty to aid or protect in any relation of dependence or of mutual dependence. (Id., com. b; see also Fleming, Law of Torts (4th ed. 1971) p. 143.)" ( Mann v. State of California, supra, 70 Cal. App. 3d 773, 779-780; see also, 3 Harper et al., The Law of Torts, supra, § 18.6, p. 712 et seq., and numerous authorities there cited; Weinrib, The Case for a Duty to Rescue, supra, 90 Yale L.J. 247; Shapo, The Duty to Act: Tort Law, Power and Public Policy (1977); Minor, The Moral Obligation as a Basis of Liability, 9 Va. L.Rev. 420 (1923); Ames, Law and Morals (1908) 22 Harv. L.Rev. 97; Bohlen, The Moral Duty to Aid Others as a Basis of Tort Liability, supra, 56 U. Pa. L.Rev. 217.)

There are situations, I readily concede, in which application of the special relationship doctrine might inappropriately punish a Good Samaritan and have adverse social consequences; but this is not such a case. The evidence relied upon by the trier of fact shows that the police intervention here significantly increased the risk of harm, not just to respondents and the decedent, but as well as to the police themselves and any others who may have been on or near the scene. The imposition of liability in these circumstances is not at all inappropriate; on the contrary, it is entirely consistent with the many cases, some of which have been decided by the Supreme Court, exposing the police to tort liability for negligent and intentional acts committed in the course of law enforcement activities. (See, e.g., Munoz v. Olin (1979) 24 Cal. 3d 629 [156 Cal. Rptr. 727, 596 P.2d 1143]; Grudt v. City of Los Angeles (1970) 2 Cal. 3d 575 [86 Cal. Rptr. 465, 468 P.2d 825].)

Relying on a 1981 opinion from the District of Columbia ( Warren v. District of Columbia (D.C.App. 1981) 444 A.2d 1), the majority in part justifies its refusal to impose a duty in this case on the theory that the duty police officers undertake by virtue of their employment does not relate to any particular individuals but to the public at large. (Maj. opn., ante, at pp. 274-275.) In the view of the majority, "[p]ermitting potential suicide victims and their families to hold police officers personally liable for the negligent handling of a suicide crisis conflicts with the public nature of protection services police officers provide to the community at large." (Maj. opn., ante, at p. 275.) This justification for the refusal to find a duty does not apply where the police have entered into a "special relationship," and this is true even in the District of Columbia. (See, e.g., Rieser v. District of Columbia (D.C. Cir. 1977) 563 F.2d 462, 477-479 [183 App.D.C. 375].) Furthermore, the supposed conflict between the broad interest in public safety and the interest in preserving the life of a particular person does not exist, because the two goals are entirely compatible, and were in fact reconciled in this case by the trier of fact. This is one of the reasons the use of the public nature of law enforcement responsibilities to bar the imposition of liability has been widely criticized. As stated in a leading treatise: "It is frequently said that liability turns on a distinction between the police officer's (or agency's) 'general' or 'public' duties to prevent crime, for the breach of which there is no liability, and the officer's 'special' duty owed to an individual, or a 'special relationship' with the crime victim. The distinction is quite unsatisfactory in terms of normal negligence theory. Some police decisions may deserve immunity as being nontortious because they require choices none of which is objectively unreasonable in the circumstances. Some may be treated as unsuitable for judicial review because adjudication would involve a court in unseemly interference with executive or legislative decisionmaking, e.g., the allocation of a municipality's budget. There is also an understandable reluctance to subject municipalities to wholesale liability in negligence to all crime victims on generalized charges of insufficiency of care in law enforcement. But run-of-the-mill negligence in the conduct of routine activities should never be insulated from liability by the doubt that an actor owes a 'duty' of care to identifiable persons who will foreseeably be subjected, by such negligence, to unreasonable risk of bodily injury." (5 Harper et al., The Law of Torts, supra, § 29.6A, pp. 640-641, fns. omitted, italics added.)

The imposition of liability in this case would create none of the problems just described. As the jury explicitly found, the police made a choice that was not only objectively unreasonable in the circumstances but in violation of their own rules.

The majority also endeavors to undermine the special relationship doctrine by creating a false conflict between that doctrine and Rowland v. Christian, supra, 69 Cal. 2d 108, and using this as the excuse to virtually do away with the special relationship doctrine as it applies to law enforcement officers. According to the majority, "if a duty of care were imposed in each case where there was some progressive, increased chance of injury stemming from a preexisting harm, the special relationship doctrine would be in irremediable conflict with the traditional duty analysis derived from Rowland . . . ." (Maj. opn., ante, at p. 285.) This is so, the majority reasons, because "[i]n volatile situations, one can always argue that the arrival of police officers caused an incremental increase in tension at the scene, and thus increased the risk of injury occurring." (Maj. opn., ante, at p. 284.)

In order to solve this putative problem, the majority creates a new rule: "Where police conduct results in some increase in a preexisting risk of harm, but an analysis of the traditional Rowland factors weighs against the imposition of a duty, we conclude that no special relationship duty may be imposed." (Maj. opn., ante, at p. 285.)

Summoning higher authority for this emasculation of the special relationship doctrine, the majority claims that "[t]o expansively construe the special relationship doctrine to encompass such incremental increases in a preexisting risk would eviscerate our Supreme Court's adoption in Williams, supra, 34 Cal. 3d [18, 23,] of the public duty rule, that protects police officers from the burden of assuming greater obligations to others by virtue of their employment." (Maj. opn., ante, at p. 285.) The majority mischaracterizes Williams, which, as earlier explained, articulates a much more balanced view than the majority implies. The court made it clear in that case that "when the state, through its agents, voluntarily assumes a protective duty toward a certain member of the public and undertakes action on behalf of that member, thereby inducing reliance, it is held to the same standard of care as a private person or organization." ( Williams v. State of California, supra, 34 Cal. 3d at p. 24, italics added, citing Hartzler v. City of San Jose (1975) 46 Cal. App. 3d 6, 10 [120 Cal. Rptr. 5]; and Mann v. State of California, supra, 70 Cal. App. 3d at p. 780.) Elsewhere in Williams the court reiterated that while a law enforcement officer does not assume any greater obligation to others individually, " '[a] person does not, by becoming a police officer, insulate himself from any of the basic duties which everyone owes to other people . . . .' " (34 Cal. 3d at p. 24, fn. 3, italics added, quoting Warren v. District of Columbia, supra, 444 A.2d 1, 4-9.)

What the majority is saying is that the mere appearance of the police on the scene necessarily involves some ("incremental") increase in the risk of harm ("or increased chance of injury"), and that it would be irrational to hold the police liable merely for appearing on the scene. The problem the majority sets out to solve does not exist. And the proof it does not exist is provided by the very cases the majority relies upon. ( Williams v. State of California, supra, 34 Cal. 3d 18; M.B. v. City of San Diego, supra, 233 Cal. App. 3d 699; Lopez v. City of San Diego, supra, 190 Cal. App. 3d 678; Von Batsch v. American Dist. Telegraph Co., supra, 175 Cal. App. 3d 1111; Rose v. County of Plumas (1984) 152 Cal. App. 3d 999 [199 Cal. Rptr. 842]; Shelton v. City of Westminster, supra, 138 Cal. App. 3d 610; Clemente v. State of California, supra, 101 Cal. App. 3d 374.) In all of those cases, as in many others, the police were relieved of any legal duty precisely because their involvement--which almost always consisted of more than mere appearance on the scene--nevertheless did not rise to the level of "affirmative action which contributed to, increased, or changed the risk which have otherwise existed." (Williams, supra, at p. 27; Rose, supra, at p. 1005; accord, Von Batsch, supra, at p. 1124; see also Lopez, supra, 190 Cal. App. 3d at pp. 682-683 [finding "inaction" is not misfeasance] and Shelton v. City of Westminster, supra, at p. 622 [no duty arises from police undertaking to investigate and take appropriate action to find missing person].)

As I have sought to emphasize, unlike Williams, Shelton, M.B., Lopez, Von Batsch, Rose, Clemente and virtually all the other cases the majority relies upon, the conduct complained of in the present case constitutes affirmative action which substantially (not "incrementally") increased the danger that already existed and also created a new danger, which in fact materialized.

Rowland v. Christian appeals to my colleagues because, by inviting consideration of the "consequences to the community of imposing a duty to exercise care with resulting liability for breach" (69 Cal. 2d at p. 113), it permits them to decide this case on the basis of value judgments--specifically, their view that, because the police did not "plan[] to precipitate Patrick's suicide" nor act "with bad faith or a reckless indifference to the consequences of their actions," there was "no moral blame" attendant to their conduct (maj. opn., ante, at pp. 270-271)--and to effectuate their belief that the imposition of liability would have a chilling effect on police activities generally. The chief reason I believe Rowland is irrelevant to the question of duty in this case, as I have said, is that the police, like everyone else, have no duty to rescue. The issue in this case is whether there is any applicable exception to a general no-duty rule, which is unrelated to the question presented in cases to which Rowland properly applies. 10Link to the text of the note But there is another important reason why Rowland does not and should not apply to determine whether a general duty applies in cases such as this.

What my colleagues dislike about the special relationship doctrine is that, by looking at conduct, it applies to a police officer the same as it applies to everyone else. Thus the doctrine conforms to the decree of our Legislature that "a public employee is liable for injury caused by his act or omission to the same extent as a private person," unless the Legislature has "otherwise provided by statute." ( Gov. Code, § 820, subd. (a).) The policy factors that may be considered under Rowland, which are judicially developed, not statutory, cannot be applied so as to relieve only public employees (or a certain type of public employees, such as law enforcement officers) of liability to which similarly situated private persons would still be exposed. As will be discussed later, the Legislature has by statute limited the liability for injury of public entities generally ( Gov. Code, § 820- 822.2), and those engaged in police and correctional activities in particular ( Gov. Code, § 844- 846), through the grant of immunities. Those immunity statutes represent legislative resolution of the often competing policy considerations relating to whether all or certain public entities ought to be held responsible under our tort law to the same extent as others. Instead of deferring to the will of the Legislature with respect to this question my colleagues improperly employ Rowland to embark upon an independent policy review as if the Legislature had never spoken, thereby usurping its prerogatives.

If, as my colleagues say, the police must be relieved of a duty to use due care because such a legal responsibility would discourage them from intervening in life-threatening situations of the sort presented in this case, the tort liability of the police would be fundamentally different from that of private persons without regard to whether any governmental immunity applies. This is a revolutionary proposition. As earlier noted, our Supreme Court has agreed that a person does not, by becoming a police officer, assume any greater obligation than others, but neither, it has declared, does he " 'insulate himself from any of the basic duties which everyone owes to other people.' " ( Williams v. State of California, supra, 34 Cal. 3d at p. 24, fn. 3, italics added, quoting Warren v. District of Columbia, supra, 444 A.2d 1, 8.) The general rule in California, at least until now, is that ". . . a law enforcement officer is liable to the same extent as a private individual for lack of due care or [for] an intentional act which results in injury, unless the officer is protected by a statutory immunity." (5 Levy et al., California Torts, supra, § 61.10, p. 61-62.6, italics added, citing, inter alia, Gov. Code, § 820 ["Except as otherwise provided by statute . . . a public employee is liable for injury caused by his act or omission to the same extent as a private person."].) The majority has so constricted the legal concept of duty applicable to law enforcement officers as to render statutory immunities almost irrelevant.

The trouble with the majority's new rule is not just that it impermissibly invades the domain of the Legislature but that the underlying policy justification has been explicitly rejected by the California Supreme Court. Considering the question in the context of immunity, the issue to which I now turn, our high court has determined that subjecting law enforcement officers to liability for injury caused by their negligent acts will not, as my colleagues claim, inhibit them from providing assistance or unduly burden local government.

II.

Because it shares my colleagues' concern about the adverse consequences of subjecting law enforcement officers to unlimited tort liability, the Legislature immunized certain specific police and correctional activities from liability. Thus, for example, neither a public entity nor a public employee is liable "for failure to provide sufficient police protection service" ( Gov. Code, § 845) or "for injury caused by the failure to make an arrest or by the failure to retain an arrested person in custody." ( Gov. Code, § 846.) The police are additionally protected by statutory immunities generally applicable to public entities and their employees, including immunity for discretionary acts ( Gov. Code, § 820.2, 815.2, subd. (b)) and for failure to enforce the law ( Gov. Code, § 818.2, 821), as well immunities applicable to particular functions, such as confining or transporting certain persons. ( Gov. Code, § 850.8 , 856.)

Appellants claim the acts described by the jury in the special interrogatory as "negligent" were immunized from liability under Government Code section 820.2, which states as follows: "Except 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." The most pertinent and authoritative definition of the discretionary acts immunized under this statute was provided in the landmark opinion in Johnson v. State of California, supra, 69 Cal. 2d 782.

In Johnson, the Supreme Court reversed a summary judgment for the state in an action for personal injuries sustained by a foster mother who had been attacked by a youth placed in her home for foster care by the California Youth Authority. She claimed Youth Authority employees knew of the youth's homicidal tendencies but failed to provide her warning. Holding that the decision not to give warning was not an immune discretionary act, the court rejected a purely "mechanical" or "literal" approach to defining "discretionary actions," and relied primarily "on policy considerations relevant to the governmental entity's claim of immunity." (69 Cal. 2d at p. 789.) The chief policy consideration addressed in Johnson is precisely the one elevated by appellants in this case and by the majority; namely, that subjecting law enforcement officials to tort liability for negligent acts will inhibit them from providing any assistance at all. The Supreme Court resoundingly rejected this argument, stating that "[t]he danger that public employees will be insufficiently zealous in their official duties does not serve as a basis for immunity in California." ( Id., at p. 790, italics in original.)

The Supreme Court commenced its analysis by adverting to Judge Learned Hand's classic articulation of the justification for attaching immunity to "discretionary" actions of public officials in order to protect them from the spectre of extensive tort liability: " 'It does indeed go without saying that an official, who is in fact guilty of using his powers to vent his spleen upon others, or for any other personal motive not connected with the public good, should not escape liability for the injuries he may so cause; and, if it were possible in practice to confine such complaints to the guilty, it would be monstrous to deny recovery. The justification for doing so is that it is impossible to know whether the claim is well founded until the case has been tried, and that to submit all officials, the innocent as well as the guilty, to the burden of a trial and to the inevitable danger of its outcome, would dampen the ardor of all but the most resolute, or the most irresponsible, in the unflinching discharge of their duties.' " ( Id., at p. 790, quoting Gregoire v. Biddle (2d Cir. 1949) 177 F.2d 579, 581.) Our Supreme Court was unpersuaded by this concern for several reasons, explaining at considerable length why "California's statutory provisions for indemnification of public officials largely remove the dangers that troubled Judge Hand and that any concern for the preservation of ardor in the performance of public duties need not constitute a substantial consideration in our definition of 'discretionary' action." (69 Cal. 2d at pp. 790-791.)

Nor did our Supreme Court deem an employee's concern over the potential liability of his or her employer a sufficient reason to expansively define "discretionary," and hence immune, acts. The court felt it "unlikely that the possibility of government liability will be a serious deterrent to the fearless exercise of judgment by the employee." (69 Cal. 2d at p. 792, citing Note, The Discretionary Function Exception of the Federal Tort Claims Act (1953) 66 Harv. L.Rev. 488, 495-496.) This statement of our Supreme Court cannot be reconciled with the majority's belief "that the risk of liability will affect police conduct regardless of whether an adverse judgment is covered by insurance" (maj. opn., ante, at p. 274) and that "[o]nly the most irresponsible police officers would shrug off the possibility of a judgment holding them personally liable for another's suicide solely because monetary damages would not be coming out of their own pocket." (Ibid.)

Nor can the majority opinion be squared with the statement in Johnson that, "to the extent that [public employees are deterred by the imposition of liability], it may be wholesome. An employee in a private enterprise naturally gives some consideration to the potential liability of his employer, and this attention unquestionably promotes careful work; the potential liability of a government entity, to the extent that it affects primary conduct at all, will similarly influence public employees." 11Link to the text of the note (69 Cal. 2d at pp. 792-793, 73 Cal. Rptr. 240, 447 P.2d 352, fn. omitted, citing James, Tort Liability of Governmental Units and Their Officers (1955) 22 U. Chi. L.Rev. 610, 652; Peck, The Federal Tort Claims Act: A Proposed Construction of the Discretionary Function Exception (1956) 31 Wash. L.Rev. 207, 224.)

The foregoing considerations were not the only reasons the Supreme Court imposed liability in Johnson. As the court explained, Government Code section 820.2 was designed to assure judicial abstention only "in areas in which the responsibility for basic policy decisions has been committed to coordinate branches of government. Any wider judicial review, we believe, would place the court in the unseemly position of determining the propriety of decisions expressly entrusted to a coordinate branch of government. Moreover, the potentiality of such review might even in the first instance affect the coordinate body's decision-making process. [Citations.]" (69 Cal. 2d at p. 793, italics in original; accord, Tarasoff v. Regents of University of California, supra, 17 Cal. 3d at p. 445 ["section 820.2 affords immunity only for 'basic policy decisions.' (Italics added.) [Citations.].") With this guidepost in mind, the court found "no plausible reason for governmental immunity" in the situation presented in Johnson. (69 Cal. 2d at p. 795.) The court found that the decision of Youth Authority employees to parole a youth to a given foster family was within the "discretionary function" language of section 820.2. "The decision to parole thus comprises the resolution of policy considerations, entrusted by statute to a coordinate branch of government, that compels immunity from judicial reconsideration." (69 Cal. 2d at p. 795, fn. omitted.) "Once an official reaches the decision to parole to a given family, however, the determination as to whether to warn the foster parents of latent dangers facing them presents no such reasons for immunity; to the extent that a parole officer consciously considers pros and cons in deciding what information, if any, should be given, he makes such a determination at the lowest, ministerial rung of official action. Judicial abstinence from ruling upon whether negligence contributed to this decision would therefore be unjustified; coupled with the administrative laxness that caused the loss in the first instance, it would only result in the failure of governmental institutions to serve the injured individual." (69 Cal. 2d at pp. 795-796.)

A police decision to assist in avoiding a potential suicide, like the Youth Authority decision to parole, "comprises the resolution of policy considerations, entrusted by statute to a coordinate branch of government, that compels immunity from judicial reexamination." (69 Cal. 2d at p. 795, fn. omitted.) But the decision to provide such public assistance is not at issue in this case. The decisions of the police at issue here, like the Youth Authority decision at issue in Johnson, were made after the police decided to assist and relate instead to the nature of the assistance provided. We are therefore not here concerned with the basic policy decision to assist in life-threatening situations involving a potential suicide, but the implementation of that policy. Moreover, the evidence shows that the decisions made by the police on the scene after they intervened violated the declared policy of the Fremont Police Department regarding the treatment of mentally distressed persons who threaten their own lives or those of others. The conduct which violated that policy is therefore not within the immunity for discretionary acts granted under Government Code section 820.2. As the Supreme Court reiterated in Johnson, " '[O]nce the determination has been made that a service will be furnished and the service is undertaken, then public policy demands (except when the Legislature specifically decrees otherwise) that government be held to the same standard of care the law requires of its private citizens in the performance of duties imposed by law or assumed.' " (69 Cal. 2d at p. 796, italics added, quoting Sava v. Fuller (1967) 249 Cal. App. 2d 281, 290 [57 Cal. Rptr. 312]; accord, McCorkle v. City of Los Angeles, supra, 70 Cal. 2d 252 at p. 261.)

The inapplicability to this case of any statutory immunity is underscored by the existence of a special relationship between respondents and the police who responded to their call for assistance. As a leading treatise states, "when police officers are negligent in the performance of a duty which they have undertaken, and when there exists a special relationship between the public entity and plaintiff in which the public entity has voluntarily assumed a duty of police protection toward plaintiff, liability may be imposed irrespective of the immunity granted by Government Code section 845 [providing immunity for failure to provide sufficient police protective services]. Generally, immunity for failure to provide police protection does not apply to situations in which liability of the public entity is based not on its failure to provide police services, but rather on its breach of an affirmative duty to protect plaintiff." (5 Levy et al., California Torts, supra, § 61.13 at pp. 61-70 to 61-71, fns. omitted, italics added, citing, inter alia, Wallace v. City of Los Angeles, supra, 12 Cal. App. 4th 1385, 1402-1403; Carpenter v. City of Los Angeles (1991) 230 Cal. App. 3d 923, 934-935 [281 Cal. Rptr. 500]; Hartzler v. City of San Jose, supra, 46 Cal. App. 3d 6, 9-10; Hernandez v. Southern California Rapid Transit Dist. (1983) 142 Cal. App. 3d 1063, 1067 [191 Cal. Rptr. 436]; see Lopez v. Southern Cal. Rapid Transit Dist. (1985) 40 Cal. 3d 780, 792-793 [221 Cal. Rptr. 840, 710 P.2d 907].)

For the foregoing reasons, the police conduct challenged in this case is not within the immunity afforded discretionary acts under Government Code section 820.2 .

III.

Appellants finally maintain that, as a matter of law, the evidence does not establish the requirements for recovery of damages based on negligent infliction of emotional distress because respondents did not directly observe the shooting of Patrick. The several theories they advance all rest on Thing v. La Chusa (1989) 48 Cal. 3d 644 [257 Cal. Rptr. 865, 771 P.2d 814], in which the Supreme Court revisited its landmark decision in Dillon v. Legg (1968) 68 Cal. 2d 728 [69 Cal. Rptr. 72, 441 P.2d 912, 29 A.L.R.3d 1316], concerning bystander recovery for damages for emotional distress. Appellants emphasize the language in Thing limiting recovery to situations in which, among other things, the plaintiff "is present at the scene of the injury-producing event at the time it occurs and is then aware that it is causing injury to the victim." ( Thing v. La Chusa, supra, 48 Cal. 3d at p. 668.) Recovery for emotional distress is barred in this case, appellants maintain, because, as in Thing, respondents did not "contemporaneously witness" the conduct found to be negligent. According to appellants, "mere auditory perception" is insufficient. This is not an impressive argument.

First, no case called to our attention by appellants declares that the contemporaneous awareness requirement of Thing can only be satisfied when a plaintiff has visually witnessed the infliction of injury. The plaintiff's problem in Thing was not that she did not "observe" the event, but that, in addition, she "was not aware that her son was being injured." (48 Cal. 3d at p. 669.)

"Awareness" can occur in a variety of sensory ways, not just visually. The case law provides many illustrations. Wilks v. Hom (1992) 2 Cal. App. 4th 1264 [3 Cal. Rptr. 2d 803], for example, was an action by multiple plaintiffs, including the mother of an injured minor, for wrongful death and personal injuries against landlords of a residence where an explosion occurred. The jury awarded damages to the mother for the emotional distress occasioned by the negligently caused injuries to her daughter. At the time of the explosion and injury, the mother and daughter were in different parts of the residence. The Court of Appeal determined that such damages were appropriate "because the mother was contemporaneously aware that the explosion was causing the injuries although she did not actually see or hear her daughter being injured." ( Id., at p. 1267, italics added.) The Wilks court justified this conclusion in part because the court in Thing pointed with approval to its earlier opinion in Krouse v. Graham (1977) 19 Cal. 3d 59 [137 Cal. Rptr. 863, 562 P.2d 1022], holding that "the plaintiff need not visually perceive the third party injury in order to satisfy the Dillon guideline, suggesting only that he must suffer shock from ' " 'the sensory and contemporaneous observance of the accident . . . .' " ' " (2 Cal. App. 4th at p. 1269, quoting Thing v. La Chusa, supra, 48 Cal. 3d at p. 656, quoting Krouse v. Graham, supra, 19 Cal. 3d at p. 76.)

"In Krouse, the plaintiff sat in the driver's seat of his car and knew that his wife was at the curb closing the door to the backseat when a car negligently driven by the defendant approached the rear of the plaintiff's car, straddled the curb and hit and killed the plaintiff's wife. The Krouse court ruled it was sufficient that the plaintiff knew his wife's position an instant before she was struck, saw the defendant's car coming toward her at high speed, and knew it must have hit his wife." (2 Cal. App. 4th at pp. 1269-1270.) The Wilks court concluded, and I agree, that the discussion of Krouse in Thing affirms "that bystander damages may be recovered only by a plaintiff who is present at the injury-producing event at the time it occurs and is then aware that it is causing injury to the victim. The court's analysis did not indicate disapproval, however, of the holding in Krouse that the plaintiff need not visually perceive the injury while it is being inflicted." ( Id., at p. 1271, italics added.) All that Thing sought to make clear was that a plaintiff who arrived at the scene after the accident and neither saw nor heard the event that produced the injury, and was therefore not contemporaneously aware of it, cannot recover damages for emotional distress. That is not what happened in this case. 12Link to the text of the note

Respondents were on the scene from the beginning and aware of all material events as they unfolded. They witnessed numerous officers search for Patrick in the house and enter the backyard accompanied by a trained dog and with shotguns and automatic weapons drawn. They were advised that the police had located Patrick under the bush in the rear of the house, and heard repeatedly shouted orders directing him to come out. Respondents were acutely aware of the risks created by the aggressive acts of the police. Respondent Gina Gohlston was so frightened by developments that, shortly before the police discharged their weapons, she sat down on a curb and vomited. Respondent Adams, Patrick's wife, then ran toward the house but was stopped by officers. Moments later respondents heard a final shout from the rear of the house and then a barrage of 34 gunshots. A few moments later respondents saw Patrick carried to an ambulance on a stretcher. Clearly, respondents were "present at the scene" of the injury-producing event, within the meaning of Thing v. La Chusa, supra, 48 Cal. 3d 644, and its progeny.

Appellants also maintain there can be no recovery for emotional distress because the special interrogatory did not specifically identify the discharge of weapons as negligent; therefore, appellants argue, any distress respondents may have suffered from hearing the fusillade was not negligently inflicted and cannot support the award of damages. This contention ignores many references in the special interrogatory to police conduct which inferentially included the use and discharge of weapons, such as the lack of control, violation of police procedures, the use of armed officers, which the jury felt left no option but force, and the "assault" mode of the police response to the call for assistance. Furthermore, appellants overlook the considerable expert testimony that the police were negligent in using and discharging weapons, which this court cannot ignore.

IV.

Relying on Elden v. Sheldon (1988) 46 Cal. 3d 267 [250 Cal. Rptr. 254, 758 P.2d 582], which holds that an action for negligent infliction of emotional distress cannot be maintained by an unmarried cohabitant of the injured party, appellants argue that respondent Gohlston cannot recover damages for emotional distress because, as Patrick's stepdaughter, she was too distantly related. Appellants initially raised this issue in a pretrial motion to dismiss respondent Gohlston's action. In response, this respondent filed a lengthy declaration, which has never been disputed, describing the extremely close and loving relationship she had with her stepfather. The motion was denied after the trial court specifically found that respondent Gohlston was not too distantly related to Patrick to be able to maintain an action for negligent infliction of emotional distress. 13Link to the text of the note There is no basis upon which this court could set aside that factual finding, as the evidence of a close relationship is undisputed and no court has ever declared as a matter of law that for purposes of determining whether a plaintiff may maintain an action for negligent infliction of emotional distress a stepchild must be treated differently than any other child.

Appellants' final contention regarding the claim for negligent infliction of emotional distress is that it should not be allowed at all because respondents failed to satisfy the claim-filing requirement of Government Code section 945.4. The argument fails. First, as respondents point out, their claims specifically sought damages for emotional distress as well as punitive damages, which cannot be recovered in an action that is merely for wrongful death. ( Krouse v. Graham, supra, 19 Cal. 3d 59, 72 [emotional distress]; Parker v. Superior Court (1985) 175 Cal. App. 3d 1082, 1087 [223 Cal. Rptr. 292] [punitive damages].) Appellants were therefore well aware respondents intended to sue for more than just wrongful death, or should have been. Respondents' claims provided sufficient information enabling appellants to adequately investigate the claim and settle the matter, if possible, without the expense of litigation, which is the purpose of the claims-filing requirement. ( Phillips v. Desert Hospital Dist. (1989) 49 Cal. 3d 699, 705 [263 Cal. Rptr. 119, 780 P.2d 349].) Indeed, the trial court made such a finding. Furthermore, appellants conceded below that the reason they did not settle this case was not because they were inadequately advised of the nature of respondents' claims, but because they did not believe they breached any legal duty. Finally, if appellants believed respondents' claims were unclear in any particular--and it is difficult to believe there ever was any such uncertainty--they were statutorily obliged to file a notice of insufficiency, "stating with particularity the defects or omissions" of the claim presented. ( Gov. Code, § 910.8.) By failing to provide such notice, appellants waived the defense that the claim was defective. ( Gov. Code, § 911; Phillips v. Desert Hospital Dist., supra, 49 Cal. 3d at p. 711.)

For the foregoing reasons, I would affirm the judgment.

A petition for a rehearing was denied January 4, 1999, and the opinion was modified to read as printed above. Kline, P. J., was of the opinion that the petition should be granted. The petition of plaintiffs and respondents for review by the Supreme Court was denied March 24, 1999. Mosk, J., and Kennard, J., were of the opinion that the petition should be granted.

Footnotes

    1Link to the location of the note in the document

    We refer to the members of the Adams family by their first names where it is necessary to distinguish them from one another only to avoid confusion and to assist the reader. No disrespect for the parties should be inferred from such usage. For further clarity, we make collective reference throughout this opinion to the City of Fremont and Sergeant Osawa as appellants, and to Johnette Marie Adams and Gina Fannucchi as respondents.

    2Link to the location of the note in the document

    The City of Fremont was held responsible for the negligence of its employees under the doctrine of respondeat superior. (See Gov. Code, § 815.2 subd. (a).)

    3Link to the location of the note in the document

    All further undesignated statutory references are to the Government Code.

    4Link to the location of the note in the document

    By the time of trial, Gina Fanucchi had married and changed her name to Gina Gholston.

    5Link to the location of the note in the document

    Officer Moran testified that Gina told him Patrick had been drinking heavily, Patrick and Johnette had fought earlier in the evening, and that Patrick had gone into the master bedroom closet. Gina repeatedly asked Patrick to come out and talk things over, but Patrick refused. Finally, Gina exited the house after she heard a gunshot originating from the closet area.

    6Link to the location of the note in the document

    Officer Osawa testified inconsistently about whether he recalled Officer Moran's providing him with the information that Patrick had been drinking.

    7Link to the location of the note in the document

    This testimony was contradicted by an inconsistent statement previously given to an internal investigator that the dog was used in order to "flush" Patrick out of the bushes or get some reaction from him.

    8Link to the location of the note in the document

    Officer Tajima-Shadle had arrived shortly after the officers began their search of the house. Upon her arrival, she learned the following facts by interviewing the family members. Patrick had been drinking heavily that night, was suicidal, and had fired a shot in the house. The family was concerned he might have injured himself. Patrick had asked to be left alone, and this was consistent with his usual manner of dealing with depression. Patrick had thought about suicide before, but had never made an attempt or done anything like this. Patrick was a nurse at Washington Hospital and would not want to go to the psychiatric ward there.

    9Link to the location of the note in the document

    Officer Pipp testified the majority of Patrick's responses were statements such as "Fuck you. Fuck off. Get the fuck out of here." Sergeant Osawa testified Patrick responded with statements such as "Leave me alone" and "Go away."

    10Link to the location of the note in the document

    Before Patrolman Lopes left the neighbor's yard, he placed a voice-activated microcassette tape recorder on the ground five or six feet from the fence to record the events "for posterity." Respondents introduced the 54-second tape into evidence. A dog is heard barking at the beginning of the recording. Almost immediately before the shooting, the police shout orders including "Drop the gun sir" and "grab him." (Officer Mazzone testified by stipulation that the command "grab him" was directed at Gus.) Shortly after the gunfire, a male voice says ". . . want to talk to you right away." A neighbor testified that two to ten seconds before the gunfire, she heard someone yelling statements like "throw the gun down, throw the gun down." Based on this evidence and the officers' prior inconsistent statements, respondents disputed the officers' testimony that they questioned Patrick calmly, and that Patrick said "I can make you leave" or "I can do something to make you leave" immediately before the first shot was fired.

    11Link to the location of the note in the document

    Entries in the police dispatch log showed a five-minute delay between the time of the shooting and the time paramedics were directed to enter the backyard and provide medical assistance to Patrick.

    12Link to the location of the note in the document

    According to Dr. Litman, suicidology is not a recognized subspecialty within psychiatry; however, it is "part of what any psychiatrist ought to know."

    13Link to the location of the note in the document

    At oral argument, respondents contended that appellants waived their right to contest whether the police officers owed Patrick a duty of care by requesting a special instruction based on Allen v. Toten (1985) 172 Cal. App. 3d 1079 [218 Cal. Rptr. 725] (Allen). However, respondents' contention was not accompanied by any supporting legal authority. Moreover, it was not raised in their appellate brief. Thus, respondents have waived their right to assert this contention on appeal. ( San Mateo County Coastal Landowners' Assn. v. County of San Mateo (1995) 38 Cal. App. 4th 523, 559 [45 Cal. Rptr. 2d 117]; Dills v. Redwoods Associates, Ltd. (1994) 28 Cal. App. 4th 888, 890, fn. 1 [33 Cal. Rptr. 2d 838].)

    14Link to the location of the note in the document

    In respondents' brief, they contended that this court should disregard the jury's special findings in determining whether the appellants were immune from liability under section 820.2. At oral argument, respondents suggested for the first time that this court should also completely disregard the jury's special findings when analyzing any of appellants' contentions, including their claim that the responding officers did not owe Patrick a duty of care. At the outset, we note that this argument was not properly raised in respondents' brief. Moreover, the trial court's decision to submit special interrogatories to the jury was an entirely discretionary act. ( Vivion v. National Cash Register Co. (1962) 200 Cal. App. 2d 597, 602 [19 Cal. Rptr. 602].) Although it is generally error to proffer special interrogatories after the jury renders its verdict, we agree with the trial court that respondents' timeliness objection should have been raised at the March 25 hearing. (Ibid.) Thus, under the unique circumstance of this case, the trial court did not err by submitting the special interrogatories after the jury had returned its verdict. (See, e.g., Pressler v. Irvine Drugs, Inc. (1985) 169 Cal. App. 3d 1244, 1251 [215 Cal. Rptr. 807].)

    15Link to the location of the note in the document

    When parties file both an appeal from an order granting new trial and a protective appeal from the judgment, we generally consider the appeal from the new trial order first. ( Milton v. Hudson Sales Corp. (1957) 152 Cal. App. 2d 418, 441 [313 P.2d 936]; 9 Witkin, Cal. Procedure (4th ed. 1997) Appeal, § 485, pp. 531-532.) However, where the appeal from the judgment shows that the allegations and proof of the plaintiff are insufficient to establish liability, we may depart from this normal procedure because affirmance of the order granting new trial will simply continue wasteful litigation, while reversal of the judgment will terminate it on the merits. (Ibid.)

    In this case, both parties urge this court to deviate from the normal procedure and resolve the issues raised in appellants' appeal from the judgment first. Because we conclude respondents' claims must fail based on the purely legal ground of duty, we have elected to resolve appellants' appeal from the judgment first in order to avoid the continuance of wasteful litigation.

    16Link to the location of the note in the document

    We agree with appellants that the harm suffered by Patrick is most appropriately characterized as suicide. Respondents contend the jury was free to infer that Patrick did not die from self-inflicted injuries because the possibility existed that Patrick shot himself reflexively after police officers fired the first shots. Below, the trial court repeatedly rejected this argument, concluding that to permit the jury to "speculate and suppose that the gunfire originated with the police, is not something I can accept. There is no evidence presented to the jury or to me that the officers fired first." We agree that no evidence was introduced from which a reasonable jury could conclude that the police officers fired first. The expert medical testimony was that Patrick's shot inflicted a "fatal-type" wound that he was unlikely to survive for more than five to ten minutes. Moreover, we note that the jury did not base their negligence finding on the police officers' responsive fire. Based on these factors, we discuss the harm suffered by Patrick as self-inflicted suicide. If the factual record supported the dissent's conclusion that in the absence of any threatening behavior, officers recklessly "killed" Patrick by "riddl[ing]" his body with a "hail of bullets," we certainly would agree that the officers were properly subjected to tort liability. (Dis. opn., post, at p. 307.)

    17Link to the location of the note in the document

    Although appellants also raised the issue of duty in their motion for judgment notwithstanding the verdict, appellants' notice of appeal did not seek review of any postjudgment motions.

    18Link to the location of the note in the document

    Section 820.2 provides in relevant part: "[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."

    19Link to the location of the note in the document

    Section 815 provides: "EXCEPT AS OTHERWISE PROVIDED BY STATUTE: [P] (a) A public entity is not liable for an injury, whether such injury arises out of an act or omission of the public entity or a public employee or any other person."

    20Link to the location of the note in the document

    "(a) A public entity is liable for injury proximately caused by an act or omission of an employee of the public entity within the scope of his employment if the act or omission would, apart from this section, have given rise to a cause of action against that employee or his personal representative. [P] (b) Except as otherwise provided by statute, a public entity is not liable for an injury resulting from an act or omission of an employee . . . where the employee is immune from liability."

    21Link to the location of the note in the document

    The only reported decisions examining law enforcement operations under these same general circumstances are Lopez v. City of San Diego (1987) 190 Cal. App. 3d 678 [235 Cal. Rptr. 583] (Lopez) and Allen, supra, 172 Cal. App. 3d 1079, in which the Fourth and Third Districts found no such duty existed. Our Supreme Court denied review in both Lopez and Allen.

    22Link to the location of the note in the document

    The precursor standard for assessing duty using a multistep procedure rather than simply relying on the foreseeability of harm was set forth in Biakanja v. Irving (1958) 49 Cal. 2d 647 [320 P.2d 16, 65 A.L.R.2d 1358]. Nevertheless, greater attribution for the test is given to Rowland.

    23Link to the location of the note in the document

    The jury's answers to the special interrogatory provide insight into the factual basis of their verdict. The heart of their negligence finding appears to be the jury's conclusion that the police officers "[d]id not respond to suicide call as such. It was an assault response rather than assist." Thus, the jury was critical of any action taken by the police officers that "did not allow for calm" such as yelling at Patrick, refusing to "back down" after Patrick's location was known, or failing to employ a trained negotiator throughout the incident. For purposes of our discussion, the jury's findings can fairly be summarized as a determination that the police officers negligently employed a confrontational approach more in keeping with an "assault" than an "assist."

    24Link to the location of the note in the document

    Respondents contend the Allen court held police officers have a duty to provide assistance to individuals threatening suicide based on the court's conclusion that bringing family members to the scene of a suicidal standoff is not morally blameworthy because "[p]olice officers are responsible for guarding the safety and well-being of the community at large and hence also for dissuading potential suicide victims from taking their own lives." (172 Cal. App. 3d. at p. 1088.) We reject this contention. Taken in context, the Allen court's reflections on the nature of police officers' employment responsibilities fall far short of a holding imposing a legal duty on police officers to prevent threatened suicides.

    25Link to the location of the note in the document

    In dictum, the Allen court implied that police officers have a tort duty to intervene when an individual threatens others or themselves with firearms, based on the applicable statutes. (See Allen, supra, 172 Cal. App. 3d at p. 1090, citing Pen. Code, § 417, subd. (a)(2), 417.8; Welf. & Inst. Code, § 5150.) We disagree.

    Police officers have the authority, but not the "duty," to enforce the law. (See, e.g., cf. Williams, supra, 34 Cal. 3d at p. 24 [state highway patrol has the right, but not the duty, to investigate accidents].) Neither Penal Code sections 417, subdivision (a)(2) and 417.8, nor Welfare and Institutions Code section 5150 impose a mandatory duty upon police officers to intervene in these crises. Penal Code sections 417, subdivision (a)(2), and 417.8 merely define crimes for which a person threatening suicide with a firearm might be charged. Welfare and Institutions Code section 5150 permits, but does not require, police officers to facilitate the involuntary commitment of a person who is a danger to themselves or others, but does not require this intervention. ( Welf. & Inst. Code, § 5150 ["When any person, as a result of mental disorder, is a danger to others, or to himself or herself, or gravely disabled, a peace officer, . . . may, upon probable cause, take, or cause to be taken, the person into custody and place him or her in a [mental health] facility. . . ."] (Italics added.).)

    26Link to the location of the note in the document

    See Poliny v. Soto (1988) 178 Ill.App.3d 203 [127 Ill.Dec. 397, 533 N.E.2d 15, 18].
    27Link to the location of the note in the document

    It is important to note that in the context of suicide prevention no court has suggested, even in dictum, that a special relationship may be premised on conduct that increased a preexisting risk that the threatened suicide would be carried out. In Nally, one could argue that defendants increased the risk that the threatened suicide would be carried out by advising the decedent that he would still go to heaven if he committed suicide. However, the Nally court did not even consider imposing a special relationship on this basis. Instead, the court endorsed cases carefully limiting the special relationship exception to professional malpractice claims or claims of negligence asserted against inpatient facilities or clinicians who were aware of a patient's suicidal tendencies, and who actually controlled the suicidal patient's environment. (Nally, supra, 47 Cal. 3d at pp. 294-296.)

    28Link to the location of the note in the document

    Cases and commentators have recognized that the circumstances arising from state custodial suicides are in a class unto themselves and invoke considerations, including due process issues, which differentiate these cases from Nally and Allen, where formal state custody was absent. (See DeShaney v. Winnebago Cty. Soc. Servs. Dept. (1989) 489 U.S. 189 [109 S. Ct. 998, 103 L. Ed. 2d 249]; Robertson, Fatal Custody: A Reassessment of Section 1983 Liability for Custodial Suicide (1993) 24 Toledo L.Rev. 807, 812-813, and authorities cited in fn. 20.)

    29Link to the location of the note in the document

    For the first time at oral argument, respondents suggested that a special relationship may be established based on the detrimental reliance of Johnette and Gina, as opposed to any detrimental reliance by Patrick. We need not consider this belated contention because it was not properly raised in respondents' appellate brief. Moreover, we note that respondents have sued for wrongful death and emotional distress arising from having witnessed wrongful injury to Patrick. As alleged in their complaint, these causes of action are derived solely from the officer's alleged negligence vis-a-vis Patrick. Thus, their right to recover is dependent upon appellants' having breached a duty owed to Patrick, not to respondents. This is because the claims asserted below require respondents to "stand[] 'in [the] shoes' . . ." of the decedent. ( Salin v. Pacific Gas & Electric Co. (1982) 136 Cal. App. 3d 185, 192-193 [185 Cal. Rptr. 899]; Argonaut Ins. Co. v. Superior Court (1985) 164 Cal. App. 3d 320, 324 [210 Cal. Rptr. 417].)

    Further, even if we accept the premise that the detrimental reliance requirement may be satisfied by the detrimental reliance of someone other than the person threatening suicide, such reliance cannot be inferred from general allegations of negligence--it must be pleaded with specificity in the complaint. (See, e.g, Williams, supra, 34 Cal. 3d at p. 27; Hernandez v. City of Pomona, supra, 49 Cal. App. 4th at p. 1502; Stout, supra, 148 Cal. App. 3d at p. 945; Morgan v. County of Yuba, supra, 230 Cal. App. 2d 938, 945.) Respondents' complaint failed to do so.

    Not only did respondents fail to plead detrimental reliance, they also failed to prove it. The record contains no evidence that either Gina or Johnette detrimentally relied on the conduct of the police officers by foregoing other means of assisting Patrick. The dissent's statement that "[Johnette] and [Gina] testified that the police placed them under strict constraints, establishing their inability to personally intercede, seek assistance from decedent's friend Alan Kirshner (as one expert thought appropriate) or others, or see to it that Patrick remained undisturbed until he sobered up" is simply inaccurate. (Dis. opn., post, at pp. 296-297, fn. 2.) The only testimony even touching on respondents' belated detrimental reliance claim is Gina's testimony that a police officer restrained Johnette from running to Patrick. Notably, there was no evidence that Patrick would have benefited from Johnette's physical presence and direct participation during the suicidal standoff. This is understandable given the history of family discord, and the increase in Patrick's level of agitation when he mistakenly believed that Gina had entered the backyard and was directly participating in the negotiations.

    30Link to the location of the note in the document

    For example, respondents characterize the conduct of police officers as "rapidly exacerbat[ing] the crisis they had created."

    31Link to the location of the note in the document

    The original Court of Appeal decision in Mann is of questionable value in assessing the issue of duty here for several reasons. First, the holding in Mann was specifically overruled by the Legislature in 1979, when it enacted section 820.25 as urgency legislation to prevent what it viewed as a dangerous expansion of the liability of peace officers. (Williams, supra, 34 Cal. 3d at pp. 25-26, fn. 5.) Although this opinion can be considered an enviable model of brevity when compared to contemporary opinion writing, nowhere in the four paragraphs of discussion of legal duty does the court intimate that this rule should be extended to police conduct involving tactical choices in the midst of an ongoing crisis. Remarkably, the decision characterizes its rationale as creating "essentially an estoppel theory of liability," which it plainly is not. (Mann, supra, 70 Cal. App. 3d at p. 780, fn. 6.) Last, its doctrinal confusion becomes even more evident, considering it purports to dispose of the municipalities immunity defense before undertaking its duty analysis--a practice ironically criticized in Williams. (Williams, supra, 34 Cal. 3d at p. 22.)

    32Link to the location of the note in the document

    The dissent contends that the imposition of liability in this case would impose the same obligations on police officers as private citizens, rather than heightening their obligations on account of their employment. We disagree. The jury instructions given in this case demonstrate how the duties imposed on these officers far exceeded the duties imposed on the average citizen. The jury was instructed that these police officers had a series of special obligations over and above the general duty of acting with reasonable care. The jury was informed that officers at the scene of a threatened suicide are required to protect the physical safety of the community, including themselves, other citizens, and family members, protect the physical safety of the person threatening suicide, and protect the psychological safety of the family members at the scene. Moreover, the court instructed the jury that it would be helpful to measure the responding police officers' conduct against that of ordinary prudent police officers in making their negligence determination. These instructions are reminiscent of the novel professional malpractice theory expressly rejected in Williams, supra, 34 Cal. 3d at page 24, footnote 3.

    33Link to the location of the note in the document

    Adler, Relying Upon the Reasonableness of Strangers: Some Observations About the Current State of Common Law Affirmative Duties to Aid or Protect Others (1991) Wis. L.Rev. 867 (Relying Upon the Reasonableness of Strangers). In the course of his discussion, Professor Adler disinters the same 1908 article by Professor Bohlen cited by the dissent. During that discourse, Professor Adler notes the analytical flaws inherent in finding a special relationship based on the misfeasance/nonfeasance distinction.

    34Link to the location of the note in the document

    "The line-drawing problems are also endemic to relationships built upon dependency." (Relying Upon the Reasonableness of Strangers, supra, Wis. L.Rev. at p. 886, fn. 77.)

    35Link to the location of the note in the document

    Adler also answers the dissent's rather dismissive reference as "dicta" to the traditional duty analysis employed in Nally: "It would have been difficult to predict the result in Nally based upon a special relationship analysis. In spite of the Nally court's stated reliance on a special relationship analysis, the status of the defendant, the nature of the harm suffered, and the societal burden of imposing liability played a more significant role than did the nature of the relationship that had been established." (Relying Upon the Reasonableness of Strangers, supra, Wis. L.Rev. at p. 893, fn. 110.)

    36Link to the location of the note in the document

    This approach has been encouraged by others. See Comment, Washington's Special Relationship Exception to the Public Duty Doctrine, supra, 64 Wash. L.Rev. 401.
    37Link to the location of the note in the document

    Although some California courts have justified their opinions declining to impose a duty of care on police officers by characterizing the conduct involved as nonfeasance, (see, e.g, Lopez, supra, 190 Cal. App. 3d 678), we believe the scarcity of cases imposing such a duty of care is more readily explained by the policy considerations set forth post.

    38Link to the location of the note in the document

    The authors criticized the position taken by Professor Bohlen, concluding: "Bohlen's perspective on misfeasance and nonfeasance seems palpably inadequate to explain the jurisprudential phenomenon at issue." (The Jurisprudence of Action and Inaction in the Law of Tort, supra, 33 Duq. L.Rev. at p. 841.)

    39Link to the location of the note in the document

    Also, as Adler points out, whether a terminally ill patient dies because a physician injects the patient with a substance which hastens death, or the physician simply withholds treatment required to sustain life, the policy question remains unanswered: "Should the physicians speed the death of patients?" It is policy questions, and not simply the characterization of the disputed conduct, that is at the heart of duty analysis. (Relying Upon the Reasonableness of Strangers, supra, Wis. L.Rev. at p. 884.)

    40Link to the location of the note in the document

    Due to our determination that appellants owed no duty of care to Patrick or his family, we do not reach appellants' remaining claims of error.

    1Link to the location of the note in the document

    I acknowledge that a few courts have applied the Rowland v. Christian analysis to determine whether the police have a responsibility to provide assistance. (See, e.g., Duttonv. City of Pacifica (1995) 35 Cal. App. 4th 1171 [41 Cal. Rptr. 2d 816]; Allen v. Toten (1985) 172 Cal. App. 3d 1079 [218 Cal. Rptr. 725] and Shelton v. City of Westminster (1982) 138 Cal. App. 3d 610 [188 Cal. Rptr. 205].) Those cases were, in my view, erroneous in that respect, although, as later explained, appellants would not be relieved of liability even if Rowland did apply. (See discussion, post, at fn. 10.) The discussion of Rowland in Nally v. Grace Community Church, supra, 47 Cal. 3d at pages 296-299, was dicta, as the court previously found no "special relationship" in that case, which it indicated was the dispositive consideration. ( Id., at p. 293.)

    2Link to the location of the note in the document

    In a footnote, the majority takes issue with respondents' statement at oral argument (in response to a question from the court) that the detrimental reliance requirement can be satisfied by decedent's wife and stepdaughter's reliance on the responding officers for assistance, and the officers' refusal to permit familial participation in the situation. The majority claims this "contention" cannot now be made because it "was not properly raised in respondents' appellate brief." (Maj. opn., ante, at p. 281, fn. 29.) This statement is wholly unjustified. The rules of pleading certainly do not require such specificity; moreover, appellants never challenged the pleadings on this or any other ground, and do not now raise the matter on appeal, which is, of course, why respondents did not bother to address the issue in their reply brief.

    Also unjustified is the majority's assertion that there is "no evidence that [Patrick's wife and stepdaughter] detrimentally relied on the conduct of the police officers by foregoing other means of assisting Patrick." (Maj. opn., ante, at p. 281, fn. 29.) The evidence showed that Sergeant Osawa failed to inquire of Patrick's wife and stepdaughter about the cause of his conduct, whether he had been using drugs or drinking and, if so, how he responded to such substances, whether he had a criminal history, or a history of past violent acts, or an aggressive or passive personality, or disliked the police, or had an aversion to dogs, or anything else that might shed light on his behavior and attitudes. Respondents' experts testified that the failure to obtain this information--which respondents sought to provide--significantly diminished the ability of the police to respond intelligently to the situation, and thereby contributed to Patrick's death. Furthermore, the wife and stepdaughter testified that the police placed them under strict constraints, establishing their inability to personally intercede, seek assistance from decedent's friend Alan Kirshner (as one expert thought appropriate) or others, or see to it that Patrick remained undisturbed until he sobered up. The special interrogatories received from the jury indicate that the verdict was based in part on this evidence; we are therefore not free to ignore it, or to speculate as to how jurors could have interpreted the pertinent evidence.

    3Link to the location of the note in the document

    The author of this treatise acknowledges the argument "that it is impossible in the nature of things for the duty problem to be decided by the jury, for if the court sends the issue to the jury this 'necessarily operates as a ruling that there is a duty or else he would never have submitted the case to the jury at all.' " The author rejects this argument because, "[a]s in the case of any other issue, the judge will leave the question to the jury if it is a debatable one, but the jury may decide that (for example) plaintiff was beyond the apparent scope of danger from defendant's conduct, and so beyond the scope of the duty to perform it carefully, even where they are quite ready to find defendant's conduct clearly below the standard of reasonable care." (3 Harper et al., The Law of Torts, supra, § 18.8, pp. 744-745.)

    4Link to the location of the note in the document

    The majority alternatively justifies its indifference to the evidence that bears most directly on the question of duty by claiming that the problem is in the pleadings. For example, conceding that a "special relationship" may be established without an express or implied promise, the majority considers it fatal that respondents failed to "plead and prove that police conduct in a situation of dependency lulled [them] into a false sense of security, thereby inducing [their] detrimental reliance on the police for protection." (Maj. opn., ante, at p. 282.) What the majority overlooks, however, is that appellants never asserted a defect in the pleadings prior to trial, when that issue should have been raised and any defect could have been cured by amendment (see Williams v. State of California, supra, 34 Cal. 3d at p. 28), nor did they make such a claim at any other time either in the court below or now on this appeal. Any technical defect in the pleadings was waived.
    5Link to the location of the note in the document

    It is on the basis of its erroneous belief that not just one but all of the foregoing factors must be present in order to create a "special relationship" that the majority attempts to distinguish this case from Mann v. State of California, supra, 70 Cal. App. 3d 773. According to the majority, the "cornerstone" of Mann "was not simply police conduct that increased a preexisting risk of harm. Rather, the Supreme Court's approval of the result in Mann rested on a variety of factors including: (1) police conduct that not only contributed to and increased the preexisting risk, but also changed the risk that would otherwise have existed; (2) the motorists' situation of dependency; (3) the motorists' detrimental reliance on the officers' conduct that prevented them from seeking other assistance; and (4) the fact that the officers' conduct lulled the motorists into a false sense of security." (Maj. opn., ante, at p. 284, italics in original.) The majority's belief that these factors must all be present, and that a "special relationship" cannot be created by any one of them is, as we have seen, contradicted by the opinion in Williams and by virtually all the other authorities.

    6Link to the location of the note in the document

    But see Justice Mosk's dissent in Williams v. State of California, supra, 34 Cal. 3d at pages 28-30, concluding that the highway patrol officer in that case had a duty to assist the plaintiff and could not be considered a Good Samaritan.

    7Link to the location of the note in the document

    The instruction was taken from language in the opinion in Allen v. Toten, supra, 172 Cal. App. 3d 1079, 1089.

    8Link to the location of the note in the document

    This is not a problem in California, however, because our Supreme Court has declared that "an omission or failure to act" may constitute a breach of duty. ( Williams v. State of California, supra, 34 Cal. 3d at p. 24.) For example, in Soldano v. O'Daniels (1983) 141 Cal. App. 3d 443 [190 Cal. Rptr. 310, 37 A.L.R.4th 1183], the court recognized the possibility of liability for the wrongful death of a murder victim where the defendant bartender refused to permit the use of a public telephone to summon police help, when the victim was seen to be violently threatened. The distinction between misfeasance and nonfeasance remains important in this jurisdiction only because the imposition of liability is more likely in cases in which the defendant's conduct consists of an affirmative act rather than a failure to act. (See Marois v. Royal Investigation & Patrol, Inc., supra, 162 Cal. App. 3d 193, 198.)

    9Link to the location of the note in the document

    MacPherson v. Buick Motor Co. (1916) 217 N.Y. 382 [111 N.E. 1050] and H. R. Moch Co. v. Rensselaer Water Co. (1928) 247 N.Y. 160 [159 N.E. 896, 62 A.L.R. 1199].

    10Link to the location of the note in the document

    My belief that Rowland v. Christian does not apply to this case should not suggest I think it would justify a different result if it did apply. The easiest way to illustrate the point is to compare this case to Allen v. Toten, supra, 172 Cal. App. 3d 1079, which was (erroneously, in my view) decided under Rowland, and is heavily relied upon by the majority.

    Unlike the present case, the jury in Allen found that the police did not use excessive force and were not negligent in the manner in which they detained and arrested the husband, and that the police were not the cause of the husband's injuries. (172 Cal. App. 3d at p. 1084.) While the jury ruled against the husband and other relatives on their causes of action, it found in favor of the wife solely on her cause of action for emotional distress and awarded her $ 50,000 in damages. The only issue on appeal in Allen was whether the wife sufficiently stated a cause of action against peace officers for their alleged negligent infliction of emotional distress in bringing her to the scene of her husband's threatened suicide. (Ibid.) Assuming there was no other basis upon which liability could be predicated, the court simply weighed the factors identified in Rowland v. Christian in order "to determine whether, as a matter of public policy, liability should be imposed upon peace officers and public entities for bringing a family member to the scene of a police standoff to aid in the surrender of an armed and suicidal relative." (172 Cal. App. 3d at p. 1087.) The Allen court determined that the interest in saving lives, which might be advanced by bringing a relative to the scene, was more important than "the interest of protecting some family members from the emotional trauma of viewing a suicide or wounding." ( Id., at p. 1089.) The court concluded that the highest priority was "the physical safety of the community, including [the police] themselves, other citizens, and family members," and that "[d]issuading police, by imposing tort liability if things go awry, from exercising their best judgment in calling a family member to assist in disarming a suicidal person increases the burden on them by eliminating one means for peaceful resolution of a crisis." ( Id., at pp. 1089-1090.) The Allen court determined that the danger of bringing a family member to the scene was justified, because in any weighing of the competing considerations "preserving physical safety and life must be paramount." ( Id., at p. 1090.)

    Applied to the very different facts of the present case, the policies considered transcendant in Allen justify the opposite result. Not only did the police in this case fail to take the action exonerated in Allen (which was among the reasons respondents' experts believed they were negligent), but the action they took endangered not only respondents and the decedent, but the police themselves and anyone else who may have been on or near the scene. Neither the record before us nor the arguments of counsel provide a single policy justification for the gratuitously provocative acts of the police found negligent by the jury, certainly not the preservation of life. The only "policy" advanced by relieving the police of liability in this case is to free them from the ordinary consequences of even gross negligence, which does not protect but endangers life.

    11Link to the location of the note in the document

    One of the strangest observations in the majority opinion is that the "imposition of a tort duty on public safety officers engaged in disarming suicidal persons is certainly likely to result in a more tentative police response to such crises." (Maj. opn., ante, at p. 272.) I wholly agree with this statement and am at a complete loss to understand why the majority (which grudgingly concedes (maj. opn., ante, at p. 270) that appellants could have responded to the situation "in a less confrontational manner") believes that result would not be salutary.

    12Link to the location of the note in the document

    The cases relied upon by appellants are factually distinguishable because all involved situations in which, at the time of the injury-producing event, the plaintiffs were either not physically present or were then completely unaware of any danger to a family member. (See Justus v. Atchison (1977) 19 Cal. 3d 564 [139 Cal. Rptr. 97, 565 P.2d 122]; Johnson v. County of Ventura (1994) 29 Cal. App. 4th 1400 [35 Cal. Rptr. 2d 150]; Evan F. v. Hughson United Methodist Church (1992) 8 Cal. App. 4th 828 [10 Cal. Rptr. 2d 748]; Fife v. Astenius (1991) 232 Cal. App. 3d 1090 [284 Cal. Rptr. 16]; Golstein v. Superior Court (1990) 223 Cal. App. 3d 1415 [273 Cal. Rptr. 270]; Wright v. City of Los Angeles (1990) 219 Cal. App. 3d 318 [268 Cal. Rptr. 309]; Ebarb v. Woodbridge Park Assn. (1985) 164 Cal. App. 3d 781 [210 Cal. Rptr. 751]; Jansen v. Children's Hospital Medical Center (1973) 31 Cal. App. 3d 22 [106 Cal. Rptr. 883].)

    13Link to the location of the note in the document

    The Supreme Court noted in Thing v. La Chusa, that "[i]n most cases no justification exists for permitting recovery for NIED [(negligent infliction of emotional distress)] by persons who are only distantly related to the injured victim. Absent exceptional circumstances, recovery should be limited to relatives residing in the household, or parents, siblings, children, and grandparents of the victim." (48 Cal. 3d at p. 668, fn. 10.) In the present case, the trial court apparently determined that the stepdaughter, Gina Gohlston, was not too "distantly related" to Patrick and that the necessary "exceptional circumstances" were present.

~~~~~~~~~~~~

Grudt v. L.A.

Supreme Court of California

May 13, 1970

L.A. No. 29715

2 Cal. 3d 575

DELMA GRUDT, Plaintiff and Appellant, v. CITY OF LOS ANGELES et al., Defendants and Respondents

Prior History:

Superior Court of Los Angeles County, Otto J. Emme, Judge. *Link to the text of the note

CALIFORNIA OFFICIAL REPORTS HEADNOTES
Classified to McKinney's Digest

CA(1a) (1a) CA(1b) (1b) Limitation of Actions §§ 96, 98(2)—Amendments Adding New Counts: Where Different Liability Is Set Up: Death § 20—Wrongful Death—Limitations.

--In a widow's action against a city and two city police officers for the wrongful death of her husband by shooting, the trial court erred in granting the city's motion to strike a second cause of action set forth in her first amended complaint, where, although it was conceded that the statute of limitations had run thereon and the new cause of action added a significant new dimension to the lawsuit, nevertheless the cause of action sought recovery for the same purpose and based on the same general set of facts contained in the initial complaint.

CA(2a) (2a) CA(2b) (2b) Limitation of Actions § 93—Relation Back of Amendments.

--If, in an action involving parties designated by their true names in the original complaint, an amendment is sought after the statute of limitations has run, the amended complaint will be deemed filed as of the date of the original complaint, provided recovery is sought in both pleadings on the same general set of facts, such rule being designed to further the policy that cases should be decided on their merits.

CA(3) (3) Trial § 6.1(6)—Pretrial Conference Order—Effect.

--In a widow's action against a city and two city police officers for the wrongful death of her husband by shooting, the issue whether the officers' acts constituted negligence was properly raised before the trial court, where, though the complaint alleged only that the officers had intentionally and wrongfully killed the decedent, the pretrial conference order filed in the case recited the officers' negligence as an issue to be tried.

CA(4) (4) Trial § 6.1(6)—Pretrial Conference Order—Effect.

--When filed, a pretrial conference order becomes a part of the record in the case, and, even though inconsistent with the pleadings, controls the subsequent course of the case unless modified at or before trial to prevent manifest injustice.

CA(5a) (5a) CA(5b) (5b) CA(5c) (5c) Actions § 51—Consistency of Causes: Death § 84(1)—Actions for Wrongful Death—Instructions.

--A plaintiff may go to the jury on both intentional and negligent tort theories, even though they are inconsistent; thus, in a widow's action against a city and two police officers for the wrongful death of her husband by shooting, admission by the officers that they had shot the decedent with intention to kill or seriously harm him did not prevent plaintiff from presenting to the jury evidence predicated on the negligent, as well as the intentional tort theory, and the trial judge should have instructed the jury on both theories and left it to their judgment to decide which, if either, was factually established, where, on the evidence adduced, defendants were not entitled to nonsuit plaintiff on either theory.

CA(6) (6) Actions § 51—Consistency of Causes.

--There is no prohibition against pleading inconsistent causes of action stated in as many ways as plaintiff believes his evidence will show, and he is entitled to recover if one well pleaded count is supported by the evidence.

CA(7a) (7a) CA(7b) (7b) Negligence §§ 117, 177(8)—Issues—Matters Admissible: Nonsuit—Improperly Granted.

--In a widow's action against a city and two city police officers for the wrongful death of her husband by shooting during the course of his arrest, it was error for the court to make a ruling that in effect nonsuited plaintiff on the issue of the officers' negligence, as distinguished from their intentional tort, where it appeared that the arrest had followed a midnight chase in a high crime-rate area and that the officers had been in plain clothes in an unmarked car, where, therefore, the evidence, viewed in plaintiff's favor, was such that a jury could have inferred that the suspicious pre-arrest conduct of the decedent was due to his belief that he was being chased by robbers, and where the jury could further have inferred that the officers, after stopping him, had been negligent in rapping on his car window with a loaded shotgun, and, at a time when regular patrol cars were converging on the scene, in not allowing the arrest to be made by uniformed officers and in shooting him to death when he allegedly started to drive off.

CA(8) (8) Dismissal § 74(3)(n)—Nonsuit—When Motion Should Be Granted.

--In a jury case, a nonsuit or a directed verdict may be granted only when, disregarding conflicting evidence, giving to plaintiff's evidence all the value to which it is legally entitled, and indulging in his favor every legitimate inference which may be drawn from the evidence, it can be said that here is no evidence to support a jury verdict for him.

CA(9) (9) Negligence § 150(5)—Questions of Law and Fact—Exercise of Ordinary Care.

--In negligence cases, the actor's conduct must always be gauged in relation to all the other material circumstances surrounding it, and if such other circumstances admit of a reasonable doubt as to whether such questioned conduct falls within or without the bounds of ordinary care, then such doubt must be resolved as a matter of fact rather than of law.

CA(10) (10) Death § 44—Actions for Wrongful Death—Evidence—Admissibility.

--In a widows' action against a city and two city police officers for the wrongful death of her husband by shooting, it was error to strike from the evidence the police tactical manual on the use of firearms, where the officers' negligence was in issue, and where the manual, prescribing rules regarding occasions for the limited use of firearms, justified the officers' use of deadly force in the circumstances of the instant case only if it were necessary to save himself, a citizen, a brother officer, or a prisoner, from death or grave bodily harm.

CA(11) (11) Negligence § 127—Evidence—Admissions—Employers' Safety Rules.

--The safety rules of an employer are admissible as evidence that due care requires the course of conduct prescribed in them; such rules implicitly represent an informed judgment as to the feasibility of certain precautions without undue frustration of the goals of the particular enterprise.

CA(12) (12) Negligence § 127—Evidence—Admissions—Employers' Safety Rules.

--An employee's failure to follow a safety rule promulgated by his employer, regardless of its substance, serves as evidence of negligence.

CA(13) (13) Death § 44—Actions for Wrongful Death—Evidence—Admissibility.

--In a widow's action against a city and two city police officers for the wrongful death of her husband by shooting, it was error to strike from the evidence the police tactical manual on the use of firearms, where there remained in issue the questions whether the killing occurred as the result of reasonable force used for self-defense or constituted an intentional tort.

CA(14) (14) Appeal §§ 1557, 1629—Reversible Error—Evidence—Striking: Nonsuit.

--In a widow's action against a city and two city police officers for the wrongful death of her husband by shooting, the court's orders improperly excluding the issues of the officers' negligence and striking from evidence the police tactical manual on the use of firearms constituted reversible error, where plaintiff was thereby deprived of a crucial theory in her case which would have supported a jury verdict in her favor.

CA(15) (15) Witnesses §§ 220, 228—Impeachment—Character—Particular Wrongful Acts: Conviction of Felony.

--A witness' conviction of a felony (Evid. Code, § 788) is the only exception to Evid. Code, § 787, providing that evidence of specific instances of his conduct, relevant only as tending to prove a trait of his character, is inadmissible to attack his credibility.

CA(16a) (16a) CA(16b) (16b) Witnesses §§ 202, 229—Impeachment—Bias: Arrest.

--In a widow's action against a city and two city police officers for the wrongful death of her husband by shooting, it was error to allow defendants to invoke the arrest records of one of plaintiff's witnesses and of the family of another of plaintiff's witnesses for the professed purpose of impeachment by showing the witnesses' bias against the police, where no felony convictions were shown, and where the thread of inferences from such past arrests, to hostility against police in general, to a willingness to distort testimony in the instant case against individual police officers unknown to them was so tenuous that the evidence could not properly be deemed to fall within the contemplation of Evid. Code, § 780, subd. (f), allowing the admission of matters tending to show the existence of bias.

CA(17) (17) Witnesses § 202—Impeachment—Bias—Discretion of Court.

--Under the Evidence Code, the question of the admissibility of evidence offered for the purpose of showing a witness' bias is left to the sound discretion of the trial judge.

CA(18) (18) Witnesses § 218—Impeachment—Bias—Extent of Examination.

--In the context of showing a witness' bias, the proper scope for the exercise of discretion by the trial court is in limiting cross-examination to a disclosure of such facts only as may show the existence of hostility, and rejecting any matters which might be pertinent only to a justification of hostility on the part of the witness; it is the existence of the feeling which is material, and not the right or wrong in the transaction which occasions it.

CA(19) (19) Witnesses § 202—Impeachment—Bias.

--An inquiry for impeachment purposes is usually confined to the prominent motives for untruthful testimony, namely, interest in the suit which necessarily tends to bias, and other circumstances showing bias which are not too remote.

CA(20) (20) Witnesses § 213—Impeachment—Bias—Against Police.

--In a widow's action against a city and two city police officers for the wrongful death of her husband by shooting, it was proper, under Evid. Code, § 780, subd. (f), allowing the admission of matters tending to show the existence of bias, to admit the testimony of a defense witness showing that one of plaintiff's witnesses had previously complained of police harassment and had vowed to "get even" with the police.

Counsel: Belli, Ashe, Ellison, Choulos & Cone, Irmas, Simke, Rutter, Green, Lasher & Hecht, Melvin Belli, David Manning Chodos, Sydney M. Irmas, Jr., and Harvey A. Schneider for Plaintiff and Appellant.

Roger Arnebergh, City Attorney, and John A. Daly, Assistant City Attorney, for Defendants and Respondents.

Judges: In Bank. Opinion by Mosk, Acting C. J., expressing the unanimous view of the court. McComb, J., Peters, J., Tobriner, J., Burke, J., Sullivan, J., and Files, J., *Link to the text of the note concurred.

Opinion by: MOSK

Opinion

On February 24, 1965, John Grudt was shot and killed by two Los Angeles police officers. Mrs. Delma Grudt, his widow, brought a wrongful death action for damages against the two officers and the City of Los Angeles. After a jury verdict for defendants, plaintiff appeals. 1Link to the text of the note

On the night of the shooting at 12:15 a.m., John Grudt, a 55-year-old carpenter who was slightly hard of hearing, was observed by two plainclothes police officers as they drove an unmarked blue 1960 Plymouth four-door sedan without siren or red light. Grudt was driving northbound on Western Avenue at about 35 to 40 miles per hour and narrowly missed running down two women in the crosswalk. The officers determined to stop Grudt for questioning because he was driving in a high crime area, but they did not intend to arrest him for traffic violations. They pulled along the side of Grudt's moving car, and the officer on the passenger side raised his badge, shined his flashlight on it, and shouted "Police Officer. Pull Over." Grudt continued driving and turned right at the next corner with the officers in pursuit. The officers again pulled alongside, the passenger showed his badge, and the driver flashed his bright lights and sounded his horn, but Grudt did not yield. Grudt made two more right turns and returned northbound on Western Avenue. The officers became alarmed when Grudt was seen to reach under the front seat of his car, although he did not exhibit any weapon.

Two other plainclothes policemen, Officers Kilgo and Rinehart, driving an unmarked 1961 pink-beige Dodge four-door sedan, heard a police broadcast that plainclothes officers were pursuing a 1959 green and white Ford northbound on Western Avenue. According to Officer Kilgo's testimony, he and Rinehart positioned their vehicle partially across Western Avenue at the intersection of 22d Street, and Officer Rinehart waved a red light to alert oncoming traffic. Grudt's vehicle and another unidentified vehicle just ahead stopped at the intersection, where there were no traffic signals. Officer Kilgo alighted from his vehicle and loaded his double-barreled shotgun as he approached Grudt's car. The other car drove away and Kilgo tapped loudly on the closed left front window of Grudt's car with the muzzle of his shotgun. Grudt looked at Kilgo and "was surprised and appeared to be frozen to the wheel." Kilgo, realizing Grudt might have been frightened at seeing him without his uniform and carrying a shotgun, lifted his shotgun in the air, leaned forward and pointed to his badge displayed on his left front pocket. Thereupon, Grudt turned his wheels toward the left and accelerated his car. The car brushed Kilgo back and he feared that it was heading towards Officer Rinehart, who was standing in front and to the left of the Grudt car. Kilgo fired a shotgun blast through the left rear window of the vehicle. Rinehart testified that Grudt's vehicle struck his leg and that he jumped to his right and fired four rounds from his revolver into the left front window. About three seconds elapsed from the time that Kilgo saw Grudt "frozen to the wheel" to the moment of the shots.

Grudt died within seconds of the shooting. It was undisputed that, after the shooting, Grudt's vehicle was at rest at the south side of a pedestrian crosswalk at the intersection of a Santa Monica freeway on-ramp and Western Avenue, about three car-lengths north of the 22d Street intersection. The car was pointing northward and was about six feet away from the curb to the east. There was a working traffic signal at the on-ramp intersection. At the time of the shooting, black and white marked police vehicles were converging on the area from both the north and the south.

Despite a thorough investigation after his death, no evidence of any crime committed by Grudt was uncovered. His wallet containing less than five dollars was found under the front seat, where he had apparently placed it during the chase. Grudt did not drink and had no previous criminal record.

Edward A. Plankers, a meatcutter, testified for plaintiff and contradicted the officers' version of the shooting. He was on his way home from work and was driving north on Western Avenue in the left-hand lane. He stopped for a red traffic light at the intersection of the on-ramp to the Santa Monica freeway, about 40 feet north of 22d Street. Grudt's car stopped abreast of his car and to his right. Plankers was emphatic that neither he nor Grudt stopped at the intersection of 22d Street. Just before the light changed, Plankers saw a man with a shotgun coming toward them and he "didn't know what to think." He started off when the light changed and had not gone far when he heard a shot. He had looked back in his rearview mirror as he drove off, and he testified that Grudt's car did not move before the shot was fired. Plankers' testimony was partially corroborated by the testimony of James Graves, who was on foot on the freeway overpass at the time of the shooting. He saw Kilgo approaching with the shotgun; he saw another car that had been beside Grudt's car speed away; and he saw police cars approaching. He dropped to the ground when he heard the shots.

Dr. LaJoie, an internist specializing in cardiology, testified as an expert for plaintiff. Based upon the autopsy report, he opined that death was caused by the shotgun blast. It was his testimony that Grudt suffered an immediate paralysis and could not thereafter have engaged in any useful activity. William Harper, a consulting physicist, also testified for plaintiff. Based upon his examination of the 1959 Ford driven by Grudt the night he was killed and the officers' testimony as to where Grudt stopped and where Officer Rinehart was standing, Harper concluded that the steering wheel of the Grudt vehicle would have required more than two and a half complete turns to its maximum left position in order to strike Rinehart. After such a turn, it was Harper's opinion that the vehicle could not return to a parallel position of the kind that it admittedly occupied after the shooting without some human intervention.

Plaintiff makes three separate specifications of error by the trial court. First, she contends it was error to strike the second cause of action of her first amended complaint. Plaintiff's original complaint in the action was filed on September 7, 1965, and alleged that Officers Kilgo and Rinehart were employees of the City of Los Angeles and had intentionally and wrongfully shot her husband to death. On July 5, 1966, the law and motion department granted plaintiff's motion filed a month earlier to amend her complaint to state a second cause of action against the City. In the second cause of action, she alleged that the City was negligent in continuing to employ Officers Kilgo and Rinehart after it knew or should have known that they were dangerous and violent officers, prone to the use of unnecessary physical force. On the opening day of the trial, defendants moved to strike the second cause of action on the ground that plaintiff had sought to amend her complaint after the one-year statute of limitations had run. The trial judge granted the motion.

The prevailing rule with respect to actions involving parties designated by their true names in the original complaint is that, if an amendment is sought after the statute of limitations has run, the amended complaint will be deemed filed as of the date of the original complaint provided recovery is sought in both pleadings on the same general set of facts. ( Austin v. Massachusetts Bonding & Insurance Co. (1961) 56 Cal.2d 596, 600 [15 Cal.Rptr. 817, 364 P.2d 681].) It is conceded that plaintiff amended her complaint after the statute of limitations had run and, therefore, the only question is whether the trial court correctly determined that the second cause of action in plaintiff's amended complaint did not seek recovery on the same general set of facts contained in the initial complaint. We conclude that the court erred.

No doubt plaintiff's second cause of action added a significant new dimension to the lawsuit. Not only was it asserted that the City was liable as the employer of negligent employees on a respondeat superior theory, but it was also claimed that the City was liable for its own negligence in retaining the services of officers known to be dangerous. However, the Austin rule requires only that the original and amended pleadings seek recovery "on the same general set of facts" ( id. at p. 600), and plaintiff's amended complaint in the instant action would appear to meet that test.

Although no California authorities deal with the precise question at issue, plaintiff finds support by way of analogy to several cases. In Weinstock v. Eissler (1964) 224 Cal.App.2d 212 [36 Cal.Rptr. 537], plaintiff was permitted, after the statute of limitations had run, to add a cause of action for fraud to a complaint alleging negligent and intentional tort by a physician in the performance of an operation. "While count three [for fraud] sets forth certain facts, not found in the preceding two counts, which assert in essence the inducement of plaintiff's consent to the operation by false representations on the part of the defendant, these additional facts do not set forth a wholly distinct and different obligation. They do no more than express a change of the legal theory underlying the original complaint. The defendant's act for which plaintiff seeks recovery is the same -- the performance of the cerebral angiogram and spinal tap. The primary right for the violation of which he seeks recovery is the same -- the wrongful invasion of his body although its statement now appears in terms of fraud. Nevertheless, realistically examined, the allegations relating to defendant's false representations and plaintiff's reliance thereon are prefatory to the central allegations of the count, namely defendant's performance of the operation and plaintiff's resulting injuries." ( Id. at pp. 234-235.)

By parity of analysis, both counts in the amended complaint before us recite the same acts by Kilgo and Rinehart as the gravamen of the action, and recovery is sought in both counts to compensate plaintiff for the loss of her husband. Just as defendant's false representations and plaintiff's reliance were additional, though incidental, facts in Weinstock, so the officers' prior dangerous conduct and the City's knowledge thereof are additional facts in this case which do not involve a significantly distinct cause of action.

Garrett v. Crown Coach Corp. (1968) 259 Cal.App.2d 647 [66 Cal.Rptr. 590] is also persuasive authority on this subject. In Garrett, a complaint charging a driver, his employer, and several Doe defendants with negligence in an automobile collision was amended to add a cause of action against the manufacturer of the vehicle causing the accident. "[Plaintiff] is seeking to hold Crown legally responsible for the same accident and the same injuries referred to in the original complaint. The amendment changes the alleged obligation of 'Doe One' from that of an operator to that of a manufacturer. This is no more drastic than the change of theory reflected by the amendment in Austin." ( Id. at p. 651.) The addition here of a cause of action for negligent retention of dangerous employees to an action based upon employment of intentionally tortious employees is much less formidable as an amendment than that approved in Garrett. (See also Wennerholm v. Stanford Univ. Sch. of Med. (1942) 20 Cal.2d 713, 718 [128 P.2d 522, 141 A.L.R. 1358].)

It would appear, therefore, that the trial court took an unduly rigid approach to a pleading rule "which, in furtherance of the policy that cases should be decided on their merits, gradually broadened the right of a party to amend a pleading without incurring the bar of the statute of limitations." ( Austin v. Massachusetts Bonding & Insurance Co. (1961) supra, 56 Cal.2d 596, 600.) The trial court erred in granting defendants' motion to strike plaintiff's second cause of action.

After presentation of plaintiff's case in chief and after the defendants had produced six witnesses, defense counsel made a motion to exclude from the issues to be given to the jury the question of the negligence of Officers Kilgo and Rinehart in the shooting which resulted in Grudt's death. Counsel also moved the court to strike from the evidence the police tactical manual on the use of firearms. The trial court granted both of these motions, and plaintiff's second contention is that the court thereby committed reversible error.

We note at the outset that whether acts or omissions of Kilgo and Rinehart constituted negligence was an issue properly raised before the trial court. While it is conceded that plaintiff's complaint alleged only that the officers intentionally and wrongfully killed decedent and did not allege negligence on the part of the officers, the pretrial conference order filed in the case recited the negligence of the officers as an issue to be tried. 2Link to the text of the note When filed, the pretrial conference order becomes a part of the record in the case and, even though inconsistent with the pleadings, controls the subsequent course of the case unless modified at or before trial to prevent manifest injustice. (Cal. Rules of Court, rule 216; see also K. King & G. Shuler Corp. v. King (1968) 259 Cal.App.2d 383, 394 [66 Cal.Rptr.330]; Hurd v. Paquin (1964) 229 Cal.App.2d 634, 636 [40 Cal.Rptr. 524]; Aero Bolt & Screw Co. v. Iaia (1960) 180 Cal.App.2d 728, 743 [5 Cal.Rptr. 53].)

The trial judge apparently premised his decision to remove the negligence issue from the jury's consideration upon the theory that plaintiff could not go to the jury on both negligence and intentional tort principles. He reasoned that, since both Officer Kilgo and Officer Rinehart admitted they shot Grudt with intention to kill or seriously harm him, there could no longer be any issue of their negligence in the shooting. We conclude the trial court's ruling lacks support in law or reason.

There is an abundance of authority permitting a plaintiff to go to the jury on both intentional and negligent tort theories, even though they are inconsistent. It has often been pointed out that there is no prohibition against pleading inconsistent causes of action stated in as many ways as plaintiff believes his evidence will show, and he is entitled to recover if one well pleaded count is supported by the evidence. ( Wells v. Brown (1950) 97 Cal.App.2d 361, 364 [217 P.2d 995]; see also Barr v. Carroll (1954) 128 Cal.App.2d 23, 27 [274 P.2d 717].) "[There] exists an inconsistency between a cause of action for wilful injuries and a cause of action for injuries arising from negligence. But it is not such an inconsistency as would either have prevented the uniting of the two causes of action in the same complaint originally or the reliance upon both by the plaintiff at the trial. . . . The law is well settled in this state that a plaintiff may plead and proceed to trial upon inconsistent causes of action. . . ." ( Figlietti v. Frick (1928) 203 Cal. 246, 249 [263 P. 534]; see also Horstman v. Krumgold (1942) 55 Cal.App.2d 296, 297-298 [130 P.2d 721]; 2 Witkin, Cal. Procedure (1954) §§ 185-186, pp. 1163-1164.) Thus, in the case at bar, plaintiff was free to present evidence predicated upon both theories to the jury and she was entitled to instructions on both negligence and intentional tort, unless defendants could demonstrate they were entitled to a nonsuit on one or both issues.

If we deem defendants' motion to exclude the negligence issue from the jury's consideration as equivalent to a motion for nonsuit, 3Link to the text of the note the trial court's decision to grant the motion is equally indefensible. The rule, repeated recently in Elmore v. American Motors Corp. (1969) 70 Cal.2d 578, 583 [75 Cal.Rptr. 652, 451 P.2d 84], provides that "[a] nonsuit in a jury case or a directed verdict may be granted only when disregarding conflicting evidence, giving to the plaintiffs' evidence all the value to which it is legally entitled, and indulging every legitimate inference which may be drawn from the evidence in plaintiffs' favor, it can be said that there is no evidence to support a jury verdict in their favor."

Viewing the evidence favorably to plaintiff, a jury could have believed that Grudt, burdened with a hearing deficiency and hailed to stop by two men in civilian clothes riding in an unmarked automobile in a high crime area late at night, believed he was about to be robbed. He tried to elude his pursuers and he hid his wallet under the front seat. He came to a stop just south of the on-ramp to the Santa Monica freeway at a red traffic light, and was shot before his vehicle had moved. A jury adopting this view of the facts might have found that Kilgo and Rinehart were negligent in not permitting uniformed police officers in black and white cars to make the arrest. Also, whether Kilgo was negligent in approaching the deceased's vehicle with a loaded shotgun and in rapping the muzzle of this lethal weapon against the window to attract attention were questions of fact for the jury. Finally, even if the jury believed that Grudt accelerated his automobile toward Rinehart, they might have found negligence on the part of the officers in interpreting the circumstances as necessitating a shotgun blast and four rounds from a revolver, designed to kill, although Grudt was hemmed in by black and white police vehicles converging to his front and rear. None of these suggested findings of negligence would have been precluded even if the jury believed the officers' testimony that they shot intentionally, and, in any event, the jury was free to disbelieve that portion of the testimony.

At the very least, the evidence favorable to plaintiff raised a reasonable doubt whether Kilgo and Rinehart acted in a manner consistent with their duty of due care when they originally decided to apprehend Grudt, when they approached his vehicle with drawn weapons, and when they shot him to death. "[The] actor's conduct must always be gauged in relation to all the other material circumstances surrounding it and if such other circumstances admit of a reasonable doubt as to whether such questioned conduct falls within or without the bounds of ordinary care then such doubt must be resolved as a matter of fact rather than of law." ( Toschi v. Christian (1944) 24 Cal.2d 354, 360 [149 P.2d 848].) Therefore, the trial judge should have instructed the jury on both negligence and intentional tort theories and left it to their judgment to decide which, if either, was factually established.

The police tactical manual pertaining to the use of firearms, previously received in evidence, was stricken after the issue of the officers' negligence had been excluded from the jury's consideration on the assumption that the manual was no longer relevant to issues remaining in the case. Having determined that the negligence issue was improperly excluded, we hold a fortiori the manual should not have been stricken as being irrelevant. The manual prescribed rules regarding occasions for the limited use of firearms by police officers. In the circumstances of the Grudt incident, the manual justified the use of deadly force by an officer only if it was necessary to save himself, a citizen, a brother officer, or a prisoner from death or grave bodily harm. As we stated in Dillenbeck v. City of Los Angeles (1968) 69 Cal.2d 472, 478 [72 Cal.Rptr. 321, 446 P.2d 129], "[the] safety rules of an employer are . . . admissible as evidence that due care requires the course of conduct prescribed in the rule. Such rules implicitly represent an informed judgment as to the feasibility of certain precautions without undue frustration of the goals of the particular enterprise." Also, the manual was admissible "on the ground that an employee's failure to follow a safety rule promulgated by his employer, regardless of its substance, serves as evidence of negligence." ( Id. at p. 481.) 4Link to the text of the note

The prejudicial effect of the trial court's erroneous decision to grant defendants' motions to exclude the issue of the officers' negligence and to strike the police tactical manual from evidence need not be belabored. The plaintiff was deprived of a crucial theory in her case which would have supported a jury verdict in her favor. By definition, that is reversible error.

III

Plaintiff's third contention raises questions regarding the proper scope of impeachment of witnesses in a context which is of first impression. Edward Plankers and, to a lesser extent James Graves, testified for plaintiff to a version of the shooting incident which conflicted with the testimony of the police officers who were on the scene. Over objection, defense counsel impeached both men with evidence of prior criminal arrests, on the theory that such arrests were relevant to show bias against the police officers on trial.

The impeachment of Mr. Graves occurred during the course of his cross-examination on two different days of the trial. On the first day, the following colloquy occurred: 5Link to the text of the note

"By Mr. Daly: Q. Mr. Graves, have you ever been convicted of a felony?

"A. Convicted? No.

"Q. Did you ever plead guilty to a felony?

"A. No." Counsel for plaintiff, Mr. Belli, objected.

"The Court: It's a proper question. Have you ever been convicted of a felony? You may answer that yes or no.

"The Witness: I've violated a probation, if that is a conviction; but behind the probation I was found not guilty, but I was put on probation, and a fine, which I did violate."

Further inquiry along these lines was postponed until the following morning, when the trial judge made this ruling:

"The Court: All of the testimony of this witness in reference to being convicted of a felony or being on probation is stricken from the record, and the jurors are to disregard it and treat it as though they had never heard of it. . . .

"Mr. Belli: Excuse me. Just a minute. Will your Honor, respectfully, instruct the jury that the witness has not been convicted of a felony?

"The Court: The defendant [sic, witness] has not been convicted of a felony.

"Mr. Belli: Thank you.

"The Court: He has been arrested. All other testimony in reference to this witness regarding arrest or felony is stricken from the record, other than the fact that he suffered an arrest."

After plaintiff's counsel objected to the judge's references to arrest and his motion for mistrial was denied, defense counsel proceeded to further cross-examine Graves. On recross-examination, the following colloquy ensued:

"Mr. Daly: Let the record indicate that this is for the purpose not of impeachment but for the purpose of bias, motive and prejudice." Mr. Belli's objection was overruled.

"By Mr. Daly: Q. Mr. Graves, on April 4, 1959, were you arrested for statutory rape by the City of Los Angeles police officers?" Mr. Belli's objection was overruled.

"Q. By Mr. Daly: Were you arrested on April 4, 1959, for statutory rape by the City of Los Angeles Police Department?

"A. Yes, I was.

"Q. And were you arrested on 11-13-59 for traffic warrants by the Los Angeles Police Department?" Mr. Belli's objection was overruled.

"Q. By Mr. Daly: Were you arrested in 1961 for narcotics?

"A. Not that I recall." Mr. Belli's objection was overruled and his motion for mistrial was denied.

"Q. By Mr. Daly: Were you arrested on June 27, 1961, by the Los Angeles Police Department for more traffic warrants?

"A. Perhaps." Mr. Belli's objection was overruled.

"Q. By Mr. Daly: October 14, 1963, were you arrested for more traffic warrants?" Mr. Belli's objection was overruled and his motion for mistrial was denied.

"The Witness: It's possible." Mr. Belli's motion for mistrial was denied.

"Q. By Mr. Daly: July 24, 1964, were you arrested for failing to appear on traffic warrants?" Mr. Belli's objection was overruled.

"Q. By Mr. Daly: June 13, 1965, were you arrested for violation of 459 of the Penal Code, burglary?

"A. No." Mr. Belli's objection was overruled.

"Q. By Mr. Daly: On March 10, 1966, were you arrested for 459 P.C., charged with 484 Penal Code, petty theft?" Mr. Belli's objection was overruled.

"The Witness: Yes."

The impeachment of Mr. Plankers was accomplished by extrinsic evidence. First, Leroy Craig testified without objection that he had been a coworker of Plankers' at a grocery store, that late in 1963 Plankers told him that he and his family were being harassed by the police and that his son had been arrested in an auto theft ring and his wife had been arrested for drunk driving, and that Plankers said, "I'll get even with those goddam cops." Later, over objection, Officer Owen McGough was allowed to testify that Plankers' son, a juvenile, had been arrested in July 1963 for receiving stolen property. Also, Officer Pollack was permitted to testify over objection that Mrs. Plankers was arrested for driving under the influence of alcohol on September 16, 1963.

The vice in the related impeachment of both witnesses becomes apparent after reference to the Evidence Code. Section 787 provides that "evidence of specific instances of his conduct relevant only as tending to prove a trait of his character is inadmissible to attack or support the credibility of a witness." The only exception to this rule is embodied in section 788, which states: "For the purpose of attacking the credibility of a witness, it may be shown by the examination of the witness or by the record of the judgment that he has been convicted of a felony . . . ."

The rulings of the trial judge in the instant action permitted wholesale circumvention of the language and policy of the foregoing sections of the Evidence Code. Neither Plankers nor Graves had ever been convicted of a felony, and section 787 expressly precludes attacking a witness' credibility by showing prior arrests for misdemeanors or felonies, or prior misdemeanor convictions. Nevertheless, because of the circumstance that the defendants in the action were police officers, defense counsel was allowed to seriously discredit Graves with evidence of his prior misdemeanor and felony arrests, and Plankers with evidence of the arrests of his wife and son.

All of this was undertaken under the guise of suggesting bias of the witnesses against the police in general and Officers Kilgo and Rinehart in particular, but the effect was clearly to accomplish that which the Evidence Code precludes. The members of the jury were permitted -- indeed encouraged -- to disbelieve the testimony of Graves and Plankers because they were men of generally "bad character" who had been "in trouble" with the police. Long before the rule was codified in the Evidence Code, it had always been held that "[it] is not previous arrest or 'trouble with the police' that may be used as the basis of impeachment of a witness, but only the previous conviction of a felony may be shown." ( People v. Duvernay (1941) 43 Cal.App.2d 823, 827 [111 P.2d 659].)

Defendants justify their counsel's inquiry on the ground that the Evidence Code does not expressly circumscribe the right of a party to indicate the bias of a witness against him. They refer us to section 780 which provides: "Except as otherwise provided by statute, the court or jury may consider in determining the credibility of a witness any matter that has any tendency in reason to prove or disprove the truthfulness of his testimony at the hearing, including but not limited to any of the following: . . . (f) The existence or nonexistence of a bias, interest, or other motive." As defendants read the section, section 780 creates a direct conflict with sections 787 and 788 in all cases in which peace officers are parties.

The Evidence Code leaves the question of the admissibility of evidence offered for the purpose of showing bias to the sound discretion of the trial judge. ( People v. Wilson (1967) 254 Cal.App.2d 489, 495 [62 Cal.Rptr. 240].) "'[The] proper scope for the exercise of discretion by the trial court is in limiting cross-examination to a disclosure of such facts only as may show the existence of hostility, and rejecting any matters which might be pertinent only to a justification of hostility on the part of the witness, for it is the existence of the feeling which is material, and not the right or wrong in the transaction which occasions it.'" ( Eye v. Kafer, Inc. (1962) 202 Cal.App.2d 449, 456 [20 Cal.Rptr. 841], quoting 74 A.L.R. 1154, 1157; Estate of Martin (1915) 170 Cal. 657, 671 [151 P. 138].) "'[The] inquiry for impeachment is usually confined to the prominent motives for untruthful testimony: interest in the suit which necessarily tends to bias, and other circumstances showing bias which are not too remote.'" ( People v. Vanderburg (1960) 184 Cal.App.2d 33, 41 [7 Cal.Rptr. 287], quoting Witkin, Cal. Evidence (1958) p. 688.)

The only evidence admitted to impeach Plankers and Graves which meets either of the above tests is the testimony of Leroy Craig relating to the attitude of Plankers. Testimony that Plankers had complained of harassment and had vowed to "get even" with the police, if believed, had some tendency to indicate that Plankers was biased against the police generally and therefore may have been biased against Officers Kilgo and Rinehart in particular. But the evidence that Plankers' wife was arrested for drunk driving and his son for receiving stolen property and that Graves was arrested on several misdemeanor and felony charges did not bear a remote relation to any alleged bias of Plankers or Graves against the two individual officers on trial. The thread of inferences from past arrests by the police, to hostility against police in general, to a willingness to distort testimony in a civil action involving individual police officers unknown to the witness is so tenuous as to render invalid the professed purpose of the defense counsel in offering the evidence.

Were we to approve the trial judge's acceptance of this impeachment evidence, we would erect an insurmountable barrier to an aggrieved citizen's ability to gain proper civil redress against errant peace officers. Parties electing to sue any policeman -- for damages in tort, for contract reparations, or merely to collect a debt -- would be obliged to produce witnesses willing to be subjected to the degradation of a courtroom examination of their prior arrest records and the records of all members of their families to show bias against police generally. And even if such witnesses were found, their credibility in the eyes of the jury would be seriously impaired by evidence of prior criminal arrests, not because of the likelihood of actual bias, but because of the "bad character" suggested by the mere arrests. Furthermore, the principle advocated by defendants could not be limited to cases in which police officers are parties. Presumably, under defendants' theory, whenever any person testifies contrary to the testimony of a police officer witness, the arrest record of that person or of members of his family would be admissible to imply that he so testified because he was biased against policemen generally. To state the proposition is to compel its rejection.

We hold, therefore, that the trial judge erred when he permitted defendants to invoke the arrest records of Graves and of Plankers' family on the theory that such evidence showed bias against Officers Kilgo and Rinehart. We conclude the purported impeachment constituted an impermissible circumvention of the salutary principles embodied in our Evidence Code.

The judgment is reversed.

Footnotes

    *Link to the location of the note in the document

    Retired judge of the superior court sitting under assignment by the Chairman of the Judicial Council.

    *Link to the location of the note in the document

    Assigned by the Acting Chairman of the Judicial Council.

    1Link to the location of the note in the document

    The transcript in this case covers more than 1,500 pages; therefore, our summary of the evidence is necessarily selective.

    2Link to the location of the note in the document

    The pretrial conference order itself does not list the issues in dispute between the parties. However, it incorporates the separate pretrial statements of the parties, and plaintiff's statement recites as an issue, "[was] the shooting of the decedent by officers Kilgo and Reinhart [sic] negligent?"

    3Link to the location of the note in the document

    The effect of the trial judge's ruling on the motion was identical to that of a nonsuit -- to remove the issue of negligence from the jury's consideration after the presentation of plaintiff's case in chief. The only difference was that the motion was made later than motions for nonsuit are proposed in normal sequence and earlier than motions for directed verdict are offered.

    4Link to the location of the note in the document

    Even had the negligence issue been properly excluded from the case, it is arguable that the manual was relevant to the remaining issue of intentional tort. The rules on the use of firearms related to the issue of the reasonableness of the force used for self-defense by the officers -- an issue which remained in the case on the cause of action predicated upon an intentional tort.
    5Link to the location of the note in the document

    We omit quotations from, but merely note, plaintiff counsel's repeated objections to the questions of the defense counsel and the rulings of the court. All of the objections were directed to the impropriety of the impeachment and all were overruled.

~~~~~~~~~~~~

Reed v. San Diego

Court of Appeal of California, Fourth Appellate District

January 31, 1947

Civ. Nos. 3633, 3634

77 Cal. App. 2d 860

LIONEL G. REED, Respondent, v. CITY OF SAN DIEGO, Appellant. LORETTA CROFT, a Minor, etc., Respondent, v. CITY OF SAN DIEGO, Appellant

Subsequent History:

A Petition for a Rehearing was Denied February 21, 1947, and Appellant's Petition for a Hearing by the Supreme Court was Denied March 31, 1947.

Prior History:

APPEALS from judgments of the Superior Court of San Diego County. Charles C. Haines, Judge.

Consolidated actions for damages arising out of an automobile collision.

CALIFORNIA OFFICIAL REPORTS HEADNOTES

CA(1) (1) Automobiles—Province of Court and Jury—Lights.

--In actions against a municipality for injuries arising out of an automobile colliding at night with a police car standing partly on the paved highway and causing said car to knock against another car which had stopped off the paved highway at the instance of the police for a violation of the "dim out" regulations then in force, it was a question of fact whether any warning was necessary other than that given by the two taillights of the police car, or whether the officers acted with due regard for the safety of others using the highway.

CA(2) (2) Id.—Conduct of Operator—Emergency Vehicles.

--In actions against a municipality for injuries arising out of an automobile colliding at night with a police car standing partly on the paved highway and causing said car to knock against another car which had stopped off the paved highway at the instance of the police for a violation of the "dim out" regulations then in force, it was a question of fact whether the stopping of the police car partly on the paved highway in a diagonal position was an arbitrary exercise of the privilege or right of exemption granted by Veh. Code, § 454, to emergency vehicles, where there was ample room for the officers to have parked their car on the shoulder of the highway.

CA(3) (3) Id.—Province of Court and Jury—Proximate Cause.

--In actions against a municipality for injuries arising out of an automobile colliding at night with a police car standing partly on the paved highway and causing said car to knock against another car which had stopped off the paved highway at the instance of the police for a violation of the "dim out" regulations then in force, it was a question of fact whether the accident was the result of the intervening act of a third person which could not have been foreseen by the police officers.

Counsel: J. F. DuPaul, City Attorney, J. H. McKinney, Deputy City Attorney, and Shelley J. Higgins, Special Counsel, for Appellant.

Gaines Hon, Joseph W. Jarrett, Robert M. Newell and J. Marion Wright for Respondents.

Judges: Barnard, P. J. Marks, J., and Griffin, J., concurred.

Opinion by: BARNARD

Opinion

These are actions for damages arising out of an automobile collision. After trial by a jury, judgments were entered against the defendant city, awarding the plaintiff Reed $ 37,500, and the plaintiff Croft $ 2,000. From these judgments the city has appealed. The cases were consolidated for the trial and on this appeal.

The accident occurred near midnight on July 18, 1943, on Rose Canyon Highway, which is a part of Highway 101 as it enters San Diego from the north. This is a divided highway with a concrete barrier in the center, leaving 23 feet on each side for northbound and southbound traffic, respectively. On the west side of the highway, at the place of the accident, there was a shoulder about eight feet in width. At the time, this area was included in a "dim out" zone under Army regulations, with the requirement that headlights of a very much reduced candle power be used.

On this night Reed was driving an automobile southerly toward San Diego. As he was traveling through Rose Canyon he saw some cars coming toward him with bright lights. Thinking he was out of the "dim out" zone he turned on his own bright lights. Shortly thereafter two police officers employed by the city of San Diego and engaged in traffic enforcement, approached from the north and sounded a siren. The police car also had a red light in front. Reed drove his car onto the shoulder and completely off the paved highway, and turned off his engine and lights. The police car was stopped about four or five feet behind Reed's car, but partly on the paved portion of the highway. It was parked slightly at an angle, the front end being farther to the left than the rear end, and there is evidence that about half of the police car was on the pavement. The driver of the police car left his motor running but dimmed his headlights, stopped the siren and turned off the front red light. While the other officer sat in the police car, the driver got out and informed Reed that he was traveling in a "dim out" area with illegal lights. The police car remained in this position for some six or seven minutes. While the officer and Reed were standing between the two cars but off the pavement, the officer engaged in writing out a citation, a car driven by Ira Lester Croft, in which Loretta Croft was a guest, approached from the north with dimmed-out lights, traveling on the paved part of the highway. The right front part of his car struck the police car and knocked it forward against Reed's car, causing serious injuries to Reed and the officer, and also causing lesser injuries to Loretta Croft. Croft testified that he had been following a car with two taillights; that the bright lights of an approaching car obscured his vision for a moment; that he then saw the taillights on the police car but thought it was the other car in motion on the pavement; and that he discovered too late that it was stopped.

The appellant city contends that in thus stopping the police car its officers were acting within the exemption given operators of emergency vehicles by the Vehicle Code, and that under the facts here appearing it must be held, as a matter of law, that the city was not liable.

Under section 400 of the Vehicle Code liability is imposed upon a city for damage arising from the negligent operation of a motor vehicle by an officer or agent of the city acting within the scope of his employment. Section 454 then provided for an exemption from such liability with respect to emergency vehicles under the following conditions; said exemptions shall apply (a) when the vehicle is being driven in response to an emergency call or in the immediate pursuit of a law violator, and (b) only when the driver of such vehicle sounds a siren when reasonably necessary as a warning to others and at nighttime when the vehicle is equipped with at least one lighted lamp displaying a red light to the front. When these conditions were present the driver was not required to observe the regulations contained in chapters 6 to 13 of division 9 of this code, but it is then further provided that any such exemption shall not relieve the driver from the duty to drive with due regard for the safety of others using the highway, nor shall it protect the driver from the consequences of an arbitrary exercise of the privilege thus granted. Section 582 of this code, which is found in chapter 13 of division 9, prohibits the standing or parking of a vehicle upon the paved portion of a highway, outside a business or residence district, when it is practicable to stop or park it off such paved portion.

The cases heretofore decided, with respect to the exemption thus granted, have involved emergency vehicles while moving through traffic in response to emergency calls or in immediate pursuit of law violators. While it might be arguable whether this exemption is applicable where the vehicle has stopped and the reasons for haste have ended, the trial court here held favorably to the appellant in this regard. On the theory that the officers were entitled to a reasonable time in which to complete the work of stopping and citing this offender, the court held that this was to be considered an emergency vehicle up to the time of the accident. The court instructed the jury that the mere stopping of this vehicle in this position for this purpose would not, standing alone, be evidence of, or support an inference of, an arbitrary use of the exemption given by section 454 from the duty of complying with sections 582 and 583. It then instructed the jury, in accordance with the limitations on the right to an exemption expressed in section 454, that before it could find the city liable it must find that the stopping of this car amounted either to a failure to drive with proper regard for the safety of others, defined as meaning without giving proper warning to others, or else to an arbitrary use of the privilege granted by section 454. The jury was then told that such arbitrary use could exist only if the use of the privilege amounted to willful misconduct, that is, if the officers acted intentionally with the knowledge that so stopping and permitting the car to remain on the highway would be likely to result in serious injury to others, or that they so stopped with a wanton and reckless disregard of the possible consequences of their act.

Relying on the rules expressed in Lucas v. City of Los Angeles, 10 Cal.2d 476 [75 P.2d 599], and Raynor v. City of Arcata, 11 Cal.2d 113 [77 P.2d 1054], the appellant contends that since the prohibition against stopping a car on the paved part of a highway is found in chapter 13, division 9 of the Vehicle Code the driver of the emergency vehicle was specifically excused from observing that rule of the road by the provisions of section 454; and that it follows that where adequate warning was given stopping on this pavement in this manner was an act within the privilege given and not an act for the consequences of which a city could be held liable. It is then further argued that section 621, requiring a red light on the rear of any vehicle, is the only statutory requirement of a warning to those approaching from the rear; that this was held a sufficient warning even as to ordinary passenger cars in James v. White Truck & Transfer Co., 1 Cal.App.2d 37 [36 P.2d 401]; that this police car, having two red taillights, complied with this requirement; that it follows, as a matter of law, that these lighted rear lamps constituted a sufficient warning to traffic approaching from the rear; and that no question of fact remained for the jury to decide, and no facts appear which would sustain a finding of liability against the city.

The exemption granted by section 454 is not absolute but is one based upon the conditions that the use of the vehicle be an emergency one, and that a warning be given. Under those conditions, the driver is not required to observe certain traffic regulations. It is then provided that this exemption shall not relieve from the duty to drive with due regard for the safety of others, and shall not protect the driver from the consequences of an arbitrary exercise of the privilege thus given. If it be assumed that this statutory exemption applies here, while the officers were completing the purpose for which the other vehicle had been stopped, the terms and conditions on which the exemption is granted would also apply. In the Lucas and Raynor cases, above referred to, it is said that the requirement to drive with due regard to the safety of others requires that a suitable warning be given. It is further said that an arbitrary exercise of the exemption privilege may not be predicated on speed or the failure to obey the ordinary rules of the road, standing alone, where a warning has been given. Accordingly, the trial court here submitted to the jury, with appropriate instructions and as questions of fact, the issues as to whether a suitable warning had been given and whether there had been an arbitrary exercise of the privilege claimed.

The appellant contends, however, that no warning was here necessary other than the ordinary taillight required for all cars, and that no unusual circumstances appear which would justify a conclusion that the stopping of this car in this position was an arbitrary exercise of the privilege granted. In our opinion, a question of fact was presented in each of these respects.

The holding in the Lucas and Raynor cases is, in effect, that the duty to drive with due regard for the safety of others, as declared in section 454, requires the giving of a warning in order to give others an opportunity to protect themselves by yielding the right of way. It would seem that this must have been intended to refer to a warning which is suitable and adequate for that purpose, and not to the usual warning which all motorists must give under ordinary circumstances. In those cases, the cars in question were proceeding through traffic and the kind of warning required, the sounding of a siren, was clearly provided for in the statute. While the kind of warning required under the different circumstances here in question may not so clearly appear, the necessity for some suitable warning for the purpose of enabling others to protect themselves is just as apparent.

Although the situation here was quite different, the appellant contends that, since no form of warning was specifically required by any statute, the ordinary warning given by two taillights must be held sufficient, as a matter of law. This is opposed to the spirit of the statute granting the privilege claimed. That statute, while based on the necessity for such an exemption for emergency vehicles, also recognizes the need for, and was intended to require, a suitable warning in order to enable others to act in the interest of the safety of all concerned.

Strictly speaking, section 454 contained requirements or conditions for the exemption claimed which were not met by the appellant. At the time here in question that statute provided that "Said exemptions shall apply only when the driver . . . sounds a siren as may be reasonably necessary as a warning to others and at night time when the vehicle is equipped with at least one lighted lamp displaying a red light to the front." If, as appellant claims, this exemption was applicable while this car was stopped in this position, these statutory conditions should also be applicable. While this car was equipped with such a lamp in front it is admitted that this red light was turned off when the car was stopped, some six or seven minutes before the accident occurred. Whether or not this requirement was intended for such a situation as this, and whether or not this failure to have such a lamp "displaying a red light to the front" is controlling under the facts of this case it can hardly be doubted, as a practical matter, that if such a light had been burning, throwing a red glare over the car in front and the surrounding area, it would have furnished a much more suitable warning than was given by the two taillights which were similar to those on ordinary cars. And if no other warning was provided for, or practicable, it may have been reasonably necessary to sound the siren.

In any event, the rules laid down in the Lucas and Raynor cases do not go so far as to require a holding that no further warning was necessary under the circumstances which here appear. Nor do we think the holding in the case of James v. White Truck & Transfer Co., supra, is controlling. Here, the officers voluntarily and intentionally left this police car partially on the pavement when there was no necessity to do so, and when existing conditions presented an unusual hazard.

We are also unable to agree that no unusual circumstances here appear. This Rose Canyon highway runs downhill for several miles, with many curves and turns around the edges of the surrounding hills. This road and the traffic conditions thereon are well known to everyone in that vicinity and are such that no prudent motorist, who was not relying on a special privilege, would stop on the pavement even in broad daylight, when it was possible to avoid doing so. This was a "dim out" area and a motorist's vision would be greatly impaired. In coming downhill under such conditions, he would naturally rely on the fact that the paved road would be clear, especially since an unusually good shoulder was provided on which to stop. The weaker lights on his own car might not prevent him from seeing the taillights on a car ahead of him, but would restrict his vision and affect his ability to judge whether that vehicle was standing still or in motion. Moreover, with his vision thus restricted, a motorist might well think the diagonal position of the police car indicated that it was going around a curve. As a practical matter, under the conditions here at the time, the two taillights on the police car might well have been more of a trap than of a warning. The night was very dark, with the dim out and road conditions no one would expect a car to stop on the pavement, and the entire situation was not only unusual but one fraught with danger. In Balthasar v. Pacific Elec. Ry. Co., 187 Cal. 302 [202 P. 37, 19 A.L.R. 452], it is said: "Notice to the person required to yield the right of way is essential, and a reasonable opportunity to stop or otherwise yield the right of way necessary" in order to make the exemption applicable. It cannot be said, as a matter of law, that a reasonable opportunity was here given to others to yield the use of that part of the paved highway which was occupied by the appellant's car, or that these officers acted with due regard for the safety of others using this highway. That matter presented a question of fact which was properly left to the jury.

Nor can it be said, as a matter of law, that the conduct of these officers did not amount to an arbitrary use of the privilege claimed. That privilege is based upon the necessity arising from the nature of the duty required of the driver of an emergency vehicle. When, in performance of this duty, there is a need or necessity for him to violate certain traffic rules he may do so. When there is no such necessity the reason for the privilege ceases as, for instance, when a fire truck is returning from a fire or when a police officer is merely cruising. In such a case, where an emergency need does not appear, a use of the privilege may be arbitrary and a question of fact may be presented. ( Hopping v. City of Redwood City, 14 Cal.App.2d 360 [58 P.2d 379].) While it was held in Raynor v. City of Arcata, supra, that where a warning has been given, an arbitrary exercise of the privilege cannot be predicated upon the elements of speed and failure to observe the rules of the road, standing alone, it was not expressly held that those elements may not be considered in connection with other elements or circumstances, one of which would naturally be the necessity for disregarding the rule of the road in question. In considering whether there has been an arbitrary use of the privilege the need or necessity at the time is an important factor, and it has been pointed out that the general principles applicable to that question are quite similar to those involved in the "willful misconduct" element in guest cases. ( Lucas v. City of Los Angeles, 10 Cal.2d 476 [75 P.2d 599].)

In this case, the general situation with respect to this road, under "dim out" conditions, was well known to the officers and there was no need for the act which caused these injuries. The violator whom they were citing had stopped completely off the highway and was not trying to escape. There was ample room for the officers to have also so parked. They left a large part of their car in a position where it was obstructing traffic on the paved highway, giving as a reason that they wanted it out there to serve as a barricade to protect them, while they were standing on the left side of the car they had stopped, from any motorist who might come along and otherwise hit them. This discloses that they fully realized the inherent and unnecessary danger in leaving the car in that position. Whatever may be the necessity for taking such steps in some cases, it clearly appears that it was unnecessary here, where there was ample room to park on the shoulder and still leave their car somewhat to the left of the other car. It is admitted that the car was intentionally left in this position and the evidence is sufficient to justify an inference that this must have been done with the knowledge that it was likely to cause an injury, or with what amounts to a reckless disregard of possible consequences. In view of all of these circumstances and considerations a question of fact was presented as to whether the attempted use of the privilege here claimed was not an arbitrary one.

It is next contended that this accident was the result of the intervening act of a third party which could not have been foreseen by the police officers. This was also a question of fact, and the controlling principle is whether the events which followed were reasonably to be anticipated. ( Newman v. Steuernagel, 132 Cal.App. 417 [22 P.2d 780].) The evidence amply sustains the implied finding in this connection.

Several other points are raised by the appellant which require no consideration since they are based upon the main propositions above discussed. In its brief, the appellant "concedes that the verdicts were justified if the Court's version of the law applicable is correct."

Each of the judgments appealed from is affirmed.

~~~~~~~~~~~~~

Kaisner v. Kolb

543 So. 2d 732 (1989)

Glenn KAISNER, et Ux., Petitioners, v. Gary Joseph KOLB, et al., Respondents.

No. 71121.

Supreme Court of Florida.

March 30, 1989.

Rehearing Denied June 22, 1989.

*733 Daniel C. Kasaris of Yanchuck, Thompson, Young, Berman & Latour, P.A., St. Petersburg, for petitioners.

Rex E. Delcamp and Jeffrey R. Fuller of Williams, Brasfield, Wertz, Fuller & Lamb, P.A., St. Petersburg, for respondents.

Robert King High, Jr. and Robert M. Ervin, Jr. of Ervin, Varn, Jacobs, Odom & Kitchen, Tallahassee, amicus curiae for the Academy of Florida Trial Lawyers.

George A. Vaka of Fowler, White, Gillen, Boggs, Villareal & Banker, P.A., Tampa, amicus curiae for Florida Sheriff's Self-Ins. Fund.

BARKETT, Justice.

We have for review Kaisner v. Kolb, 509 So. 2d 1213 (Fla. 2d DCA 1987), based on express and direct conflict with Commercial Carrier Corp. v. Indian River County, 371 So. 2d 1010 (Fla. 1979). We have jurisdiction. Art. V, § 3(b)(3), Fla. Const. We quash the decision below and remand.

On June 29, 1979, Glen Kaisner, his wife and five children were traveling in a pickup truck on a St. Petersburg street when they were stopped for an expired inspection sticker. Two officers in a police cruiser, Jones and Kolb, pulled Kaisner into the curb lane and parked their vehicle about one vehicle length behind. At this time, Mr. Kaisner left the pickup truck and walked between the two vehicles. One of the officers approached Mr. Kaisner, told Mr. Kaisner not to come any closer, and then returned to the cruiser. After some minutes passed, Deputy Jones left his vehicle. Kaisner simultaneously began moving toward the officer. At this moment, the police cruiser unexpectedly was hit from behind by another vehicle, and was propelled forward into the pickup truck. Both Kaisner and Deputy Jones were struck.

The Kaisners brought an action against the two deputies, the Pinellas County Sheriff's Department and American Druggist Insurance Co., insurer of the police cruiser. The second amended complaint alleges that the deputies breached a duty of care by failing to use proper police procedure in the stop. An affidavit from an expert in police procedure supported this contention and stated that the deputies' negligence proximately caused the Kaisners' losses. Nevertheless, the trial court granted summary judgment in favor of all defendants.

The Second District affirmed. 509 So. 2d at 1220.[1] In its essential holdings, the district court concluded that (1) the officers had engaged in an act peculiarly governmental in nature that thus was discretionary and immune from suit; (2) notwithstanding the immunity, no duty of care existed under section 314A of the Restatement (Second) of Torts (1979); and (3) there was no waiver of sovereign immunity up to the limits of insurance coverage. This review ensued.

The state of Florida has waived sovereign immunity for any act for which an individual in similar circumstances could be held liable. § 768.28, Fla. Stat. (Supp. 1980). On the face of the statute, this waiver does not attempt to distinguish between particular kinds of governmental acts.

Realizing, however, that the judiciary is ill-equipped to interfere in the fundamental processes of the executive and legislative branches, this Court consistently has held that there remains a sphere of governmental activity immune from suit. In reviewing our case law on this point, we recognize that this governmental immunity has been described in many ways.

For instance, we sometimes have attempted to resolve issues involving governmental immunity by reference to the tort law concept of duty of care. As is self-evident, the waiver of sovereign immunity did not of itself create any new duties of care. Trianon Park Condominium Ass'n v. City of Hialeah, 468 So. 2d 912, 917 (Fla. 1985). Starting from this premise, we have based some of our holdings on the principle *734 that there can be no governmental liability unless a common law or statutory duty of care existed that would have been applicable to an individual under similar circumstances. Id. As the California Supreme Court noted, "`[c]onceptually, the question of the applicability of ... 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.'" Williams v. State, 34 Cal. 3d 18, 22, 192 Cal. Rptr. 233, 235, 664 P.2d 137, 139 (1983) (quoting Davidson v. City of Westminister, 32 Cal. 3d 197, 185 Cal. Rptr. 252, 649 P.2d 894 (1982)).

Trianon essentially rests on this principle and thus stands for the proposition that a city has no duty to enforce a building code for the benefit of particular individuals. In such circumstances, there can be no liability. Trianon was not intended to, and did not affect our prior pronouncements on the question of governmental immunity. It merely addressed, in that particular factual context, the parallel question of the duty of care. While a duty certainly must exist for there to be liability, the question of governmental immunity does not itself depend upon this determination. That is, a court must find no liability as a matter of law if either (a) no duty of care existed, or (b) the doctrine of governmental immunity bars the claim. Trianon disposed of the issue by reference to the first of these.

In this case, we find that petitioner was owed a duty of care by the police officers when he was directed to stop and thus was deprived of his normal opportunity for protection. Under our case law, our courts have found liability or entertained suits after law enforcement officers took persons into custody, otherwise detained them, deprived them of liberty or placed them in danger. E.g., Hargrove v. Town of Cocoa Beach, 96 So. 2d 130 (Fla. 1957) (liability when inmate died of smoke inhalation in negligently attended jail); Department of Highway Safety and Motor Vehicles v. Kropff, 491 So. 2d 1252 (Fla. 3d DCA 1986) (liability for injury caused by officer's negligence during roadside stop); Walston v. Florida Highway Patrol, 429 So. 2d 1322 (Fla. 5th DCA 1983) (liability for injury caused by officer's negligence during roadside stop); White v. Palm Beach County, 404 So. 2d 123 (Fla. 4th DCA 1981) (liability for violence and sexual abuse suffered by inmates in jail); Henderson v. City of St. Petersburg, 247 So. 2d 23 (Fla. 2d DCA) (liability for injury to police informant after police knew he was in danger for cooperating with authorities), cert. denied, 250 So. 2d 643 (Fla. 1971). So long as petitioner was placed in some sort of "custody" or detention, he is owed a common law duty of care.
The term "custody" is defined as the detainer of a man's person by virtue of lawful process or authority. The term is very elastic and may mean actual imprisonment or physical detention or mere power, legal or physical, of imprisoning or of taking manual possession.

Black's Law Dictionary 347 (5th ed. 1979) (emphasis added). We thus conclude that "custody" need not consist of the formal act of an arrest, but can include any detention.

It is apparent that the district court took too restrictive a view of the term "custody" in this instance. Petitioner and his family unquestionably were restrained of their liberty when they were ordered to the roadside. They were not free to leave the place where the officers had ordered them to stop. Petitioner effectively had lost his ability to protect himself and his family from the hazard at hand, which consisted of onrushing traffic. The only way petitioner could have escaped this threat would have been by disobeying the officers' instructions that he remain in the general area where they had stopped him, thus subjecting himself to immediate arrest and criminal charges. Under these circumstances, petitioner clearly was sufficiently restrained of liberty to be in the "custody" or control of the police. Thus, the officers owed him and his family a duty of care arising under the common law of Florida.

*735 This conclusion is supported by decisions of the district courts addressing factual issues similar to those presented here. Kropff; Walston. Accord Wood v. Ostrander, 851 F.2d 1212 (9th Cir.1988); White v. Rochford, 592 F.2d 381 (7th Cir.1979). In Walston, a case whose facts are indistinguishable from the present action, the Fifth District reversed a directed verdict in favor of the state. Although not addressing the immunity issue, the Walston court concluded that a question of foreseeability existed when an officer detained a person at roadside despite evidence of the danger posed by onrushing traffic. 429 So. 2d at 1324. As in the present case, the detainee in Walston was injured when a third vehicle struck a vehicle parked on the roadside as a result of the police's actions. Id.

In Kropff, the Third District confronted an injury caused by actions taken by an officer while investigating an accident along a busy roadway. One of the persons involved in the accident was assisting in the roadside investigation and was struck when she followed the officer into the roadway. Specifically addressing the question of whether Trianon barred recovery, the Kropff court found that the trooper's actions in securing the scene of an accident were operational in nature and thus not immune. Kropff, 491 So. 2d at 1255 n. 2. The court then agreed that a duty of care existed that would support liability. Id. at 1255.

This conclusion also is supported by the law of other jurisdictions, whose courts generally agree that liability may exist because of injuries caused when a vehicle driven by a third party collides with persons or vehicles stopped on the roadside by the police.

For instance, our sister court in North Carolina has determined that liability can exist where a police car, after stopping another vehicle, was left partially jutting into the roadway with no lights burning to warn approaching traffic. Kinsey v. Town of Kenly, 263 N.C. 376, 380, 139 S.E.2d 686, 688-90 (1965). In Kinsey, the injury also occurred when a vehicle driven by a third party crashed into the police car, propelling it forward into persons stopped on the roadside by police. Id.

The appellate courts of California have addressed the question most clearly in two cases, the first of which sustained a jury verdict for the plaintiff and the second of which sustained a verdict for the defendant. In Reed v. City of San Diego, 77 Cal. App. 2d 860, 868, 177 P.2d 21 (1947), the California district court held that liability was for the jury to decide where police had stopped a vehicle along the roadside but, as in Kinsey, had left the police vehicle remaining partly on the highway. Again, the police vehicle had been struck by oncoming traffic, propelling it forward into the persons who had been stopped by the police. Id.

However, in Whitton v. State, 98 Cal. App. 3d 235, 239-40, 159 Cal. Rptr. 405, 407-08 (1979), the California appellate court sustained a jury verdict in favor of the state based on a similar rear-end collision that propelled a police car forward into persons stopped on the roadside by police. It is significant the Whitton court assumed that a proper jury question was presented. See id. In its discussion, Whitton found that the question to be resolved by the jury was one of foreseeability. In the specific circumstances of that case, the California court found that an unexpected rear-end collision by a vehicle driven by a drunken driver was not so clearly foreseeable that the jury verdict in favor of the state should be reversed, especially where there was no evidence the officers had acted negligently. Id.

We agree with this general analysis. There is a strong public policy in this state that, where reasonable men may differ, the question of foreseeability in negligence cases should be resolved by a jury. Vining v. Avis Rent-A-Car Systems, Inc., 354 So. 2d 54, 56 (Fla. 1977). Where a defendant's conduct creates a foreseeable zone of risk, the law generally will recognize a duty placed upon defendant either to lessen the risk or see that sufficient precautions are taken to protect others from the harm that the risk poses. See Stevens v. Jefferson, *736 436 So. 2d 33, 35 (Fla. 1983) (citing Crislip v. Holland, 401 So. 2d 1115, 1117 (Fla. 4th DCA), review denied sub nom. City of Fort Pierce v. Crislip, 411 So. 2d 380 (Fla. 1981)).

We see no reason why the same analysis should not obtain in a case in which the zone of risk is created by the police. The expert's affidavit in this case created an issue of fact as to whether the police violated this duty of care and were therefore guilty of negligence. While it is true that petitioner in this instance may have aggravated his injuries by his own conduct, we do not believe this should vitiate his claim entirely. Rather, this concern should be left to the jury to consider under the doctrine of comparative negligence, which rests on the principle that liability should be apportioned according to fault. See Hoffman v. Jones, 280 So. 2d 431 (Fla. 1973).

We thus find that a duty of care existed that would support a lawsuit in the absence of any viable claim of governmental immunity, a question to which we now turn.

In general, the Court consistently has held that liability may exist when the act of the government or its agent is not discretionary, but operational in nature. E.g., Avallone v. Board of County Comm'rs, 493 So. 2d 1002, 1005 (Fla. 1986); Commercial Carrier v. Indian River County, 371 So. 2d 1010 (Fla. 1979). The question here is whether the police officers' acts fell in one or the other category.

It is evident, however, that the terms "discretionary" and "operational" are susceptible of broad definitions. Indeed, every act involves a degree of discretion, and every exercise of discretion involves a physical operation or act. Thus, to provide sharper definition to these terms, we have resorted to the law of other jurisdictions.
California, for instance, has held that the very process of ascertaining whether an official determination rises to the level of insulation from judicial review requires sensitivity to the considerations that enter into it and an appreciation of the limitations on the court's ability to reexamine it... . It requires us to find and isolate those areas of quasi-legislative policy-making which are sufficiently sensitive to justify a blanket rule that courts will not entertain a tort action alleging that careless conduct contributed to the governmental decision.

Johnson v. State, 69 Cal. 2d 782, 794, 73 Cal. Rptr. 240, 248-49, 447 P.2d 352, 360-61 (1968) (footnote omitted) (adopted in Commercial Carrier, 371 So.2d at 1021-22).

In Evangelical United Brethren Church v. State, 67 Wash. 2d 246, 255, 407 P.2d 440, 445 (1965) (adopted in Commercial Carrier, 371 So.2d at 1019), our sister court in Washington developed the following test for differentiating discretionary from operational functions:

(1) Does the challenged act, omission, or decision necessarily involve a basic governmental policy, program, or objective? (2) Is the questioned act, omission, or decision essential to the realization or accomplishment of that policy, program, or objective as opposed to one which would not change the course or direction of the policy, program, or objective? (3) Does the act, omission, or decision require the exercise of basic policy evaluation, judgment, and expertise on the part of the governmental agency involved? (4) Does the governmental agency involved possess the requisite constitutional, statutory, or lawful authority and duty to do or make the challenged act, omission, or decision? If these preliminary questions can be clearly and unequivocally answered in the affirmative, then the challenged act, omission, or decision can, with a reasonable degree of assurance, be classified as a discretionary governmental process and nontortious, regardless of its unwisdom.

We ourselves repeatedly have recognized that the discretionary function exception is grounded in the doctrine of separation of powers. Trianon, 468 So. 2d at 918; Commercial Carrier, 371 So. 2d at 1022. That is, it would be an improper infringement of separation of powers for the judiciary, by way of tort law, to intervene in fundamental decisionmaking of the executive and legislative branches of government, including *737 the agencies and municipal corporations they have created. See art. II, § 3, Fla. Const.

We reaffirm this principle and are persuaded that governmental immunity derives entirely from the doctrine of separation of powers, not from a duty of care or from any statutory basis. See art. II, § 3, Fla. Const. Accordingly, the term "discretionary" as used in this context means that the governmental act in question involved an exercise of executive or legislative power such that, for the court to intervene by way of tort law, it inappropriately would entangle itself in fundamental questions of policy and planning. See Department of Health and Rehabilitative Services v. Yamuni, 529 So. 2d 258, 260 (Fla. 1988). An "operational" function, on the other hand, is one not necessary to or inherent in policy or planning, that merely reflects a secondary decision as to how those policies or plans will be implemented. We believe this basic definition can be illuminated by the tests and definitions employed by the courts of California and Washington, quoted above.

Turning now to the facts of this case, we begin with the distinction developed by the California court in Johnson and adopted in Commercial Carrier. The question thus is whether the act of the officers in this case involved "quasi-legislative policy-making ... sufficiently sensitive to justify a blanket rule that courts will not entertain a tort action alleging that careless conduct contributed to the governmental decision." 73 Cal. Rptr. at 248-49, 447 P.2d at 360-61. We find that it does not. The precise manner in which a motorist is ordered to the side of the road is neither quasi-legislative nor sensitive.

We also look to the four-part test employed by our sister court in Washington and adopted in Commercial Carrier. First, did the act of the officers in this instance involve a basic governmental policy, program or objective? In this instance, it did not. The decision as to where motorists will be ordered to the side of the road at best is a secondary concern, for the reasons we previously have elaborated.

Second, is the act essential to the realization of basic policy? In this instance, it was not. Safer places or methods of ordering motorists to the roadside may exist that would both protect the motorists and meet the government's objectives.

Third, did the act require basic policy evaluation or expertise? In this instance, it did not. For the reasons stated earlier, the act in this instance at best involved secondary judgment. Were we to establish a rule preventing officers from ordering motorists to the roadside, then we improperly would be entangling ourselves in matters involving basic policy evaluation or planning. Such is not the case at hand. This lawsuit merely asks the courts to consider the way in which this basic policy is implemented, not its fundamental wisdom.[2]

Fourth, was the act lawfully authorized? In this instance, it clearly was. Law enforcement officers have the authority to pull motorists to the roadside for traffic infractions.

Under the analysis of Commercial Carrier, the tests adopted from our sister courts in Washington and California are very persuasive and lend support to the analysis employed under Florida law. 371 So. 2d at 1019. We noted in Commercial Carrier that, if one or more of the questions asked by the Washington court could be answered in the negative, further inquiry might be required by the court. Id. We thus turn to the distinction between "operational" and "discretionary" functions.

While the act in question in this case certainly involved a degree of discretion, we cannot say that it was the type of discretion that needs to be insulated from suit. Intervention of the courts in this case *738 will not entangle them in fundamental questions of public policy or planning. It merely will require the courts to determine if the officers should have acted in a manner more consistent with the safety of the individuals involved.[3]

Obviously, there may be many ways of ordering motorists to the roadside, some safer than others, most requiring neither greater cost nor a change in fundamental governmental policies. The issue here involved neither the policies themselves nor the decision to order petitioners to the roadside, which we would be powerless to alter by way of tort law. Instead, the problem was the way these decisions were implemented, which our courts indeed may review in an action for negligence. We thus conclude that the presumption created by resort to the California and Washington tests is borne out by the distinction between "operational" and "discretionary" functions recognized under the law of Florida. The act in this instance was operational, not discretionary.

Finally, we disagree with the district court's holding that the enactment of section 286.28, Florida Statutes (1985), did not waive governmental immunity up to the limits of insurance coverage. Both the plain language of the statute and our holding in Avallone require a contrary conclusion. 493 So. 2d at 1004-05. This contingent waiver operates independently of the general waiver of sovereign immunity and would be sufficient to allow recovery up to the limits of coverage in this instance provided the elements of negligence are properly found to exist.

We note, however, that the legislature in chapter 87-134, Laws of Florida, "retroactively" has modified section 768.28 and "retroactively" has repealed section 286.28 as applied to any cause of action in which a verdict or judgment had not been obtained by June 30, 1987.[4] The present case falls within that category.

Chapter 87-134 effectively provides that the purchase of liability insurance does not waive the limit on damages, which is $100,000 or $200,000, depending upon the facts of the case. We note that chapter 87-134 in its bill title explicitly characterizes itself as a clarification of original legislative intent as to section 768.28. See ch. 87-134, Laws of Fla. Nevertheless, there is nothing in chapter 87-134 purporting to clarify the intent underlying section 286.28, upon which Avallone rested and upon which petitioners rely. Indeed, it would be absurd to construe the repeal of a statute, even where the legislature purports to make the repealer partially retroactive, as a "clarification" of original legislative intent. Subsequent legislatures, in the guise of "clarification," cannot nullify retroactively what a prior legislature clearly intended. Art. I, § 10, Fla. Const.

Accordingly, we must consider whether petitioners had a vested interest under section 286.28 that would be impaired by retroactive application of chapter 87-134 to prior injuries. We believe petitioner did have a vested right to sue respondents under section 286.28 as it was interpreted by this Court in Avallone. This holding is compelled by our decision in Rupp v. Bryant, 417 So. 2d 658 (Fla. 1982). In Rupp, we held that the legislature could not retroactively cloak certain public employees with absolute immunity, effectively preventing a plaintiff from suing them for a prior injury. Id. at 665-66. We reached this result in Rupp despite the fact that no jury award *739 had yet been returned, 417 So. 2d at 666, and despite the fact that the retroactive law could be interpreted as a clarification of original legislative intent. See id. at 671 (Boyd, J., dissenting). We see no reason why a different result should obtain here merely because the retroactive law limits the amount of recovery and does not completely abolish the cause of action. A vested right is not any less impaired in the eyes of the law merely because the impairment is partial.

We find that the district court improperly found that the second amended complaint posed no question for the jury. We quash the decision below and remand for further proceedings consistent with this opinion.

It is so ordered.

EHRLICH, C.J., and SHAW, GRIMES and KOGAN, JJ., concur.

McDONALD, J., dissents with an opinion.

OVERTON, J., dissents.

McDONALD, Justice, dissenting.

Unlike the majority, I fail to find an issue of fact adequate to support a claim for damages against the defendants in this case. First, I fail to see where a duty existed to the plaintiffs from the defendants requiring the defendants to protect the plaintiff from the negligent act of the driver of the car which collided with the police car. Secondly, I fail to find an act of negligence of the defendants which was the proximate cause of injury to the plaintiff.

After being signalled to stop by the deputies, Kaisner stopped in the far right-hand lane of this curbed road, and the deputies stopped directly behind him, with their car completely in that single lane. They also kept their car's emergency lights on during the entire time. It was broad daylight on a clear summer day. There was no obstruction to prevent other motorists from seeing the stopped police vehicle. The driver who struck the police car was not looking ahead, but for an object inside her car when she ran into the stopped vehicle.

After stopping, the plaintiff alighted from his car and walked to the position where he was when he was struck. He was not directed to do so by the defendants. There is no indication that the plaintiff was, or should have been, relying upon the arresting officer to protect him from the negligent driver at this time. He was not incapacitated, had full control of his faculties and, though stopped, was not under arrest or in the custody of the police.

This accident differs from others which have been allowed to proceed. The accident in Walston v. Florida Highway Patrol, 429 So. 2d 1322 (Fla. 5th DCA 1983), occurred at night, and the stopped car's two occupants were obviously drunk. The arrested driver was led between the two cars even though the trooper had been taught not to allow people to stand between the cars during a stop and that he had questioned, to himself, the safety of their doing so. The facts in the instant case are a far cry from the facts of Walston.[*]

The same is true of Department of Highway Safety & Motor Vehicles v. Kropff, 491 So. 2d 1252 (Fla. 3d DCA 1986). In Kropff a trooper stopped his patrol car on the opposite side of a multi-lane road to investigate an accident at 11:00 at night. He failed to warn oncoming traffic of a vehicle disabled in the accident, failed to move his car to secure the scene from oncoming traffic, failed to request backup, and after taking Kropff back to her disabled car questioned her and the witnesses in the middle of the street, where a passing truck struck and injured Kropff. Kropff did not go into the street by herself, but did so only when accompanying the trooper.

A jury question existed in Walston and Kropff. The same, however, is simply not *740 true in the instant case because the facts demonstrate unquestionably that these deputies used reasonable care and had assumed no special duty to the plaintiff.

A problem with this, and the other cited cases, is foreseeability. In Vining v. Avis Rent-A-Car Systems, Inc., 354 So. 2d 54 (Fla. 1977), this Court considered whether the owners of a stolen rental car could be "liable for the conduct of a thief who steals the car and subsequently injures someone while negligently operating the stolen vehicle." Id. at 55. Based on the facts presented in Vining, the Court stated: "Since reasonable men might differ, the ultimate determination of foreseeability rests with the jury." Id. at 56.

The majority cites Vining in stating that foreseeability should be resolved by a jury and concludes that the same analysis should be used when the police create a zone of risk. Slip. op. at 6. In its analysis the majority cites two California cases, Reed v. City of San Diego, 77 Cal. App. 2d 860, 177 P.2d 21 (1947), and Whitton v. State, 98 Cal. App. 3d 235, 159 Cal. Rptr. 405 (1979), which, I believe, do not support the majority's leaving foreseeability to the jury in this case. In Reed the court affirmed judgments against the city when two police officers pulled a driver over late at night, parked their car at an angle with the rear half on the road, dimmed the headlights, and turned off the car's red light. This reckless disregard of possible consequences prompted the court to find that the circumstances presented a question of fact as to whether the officers' arbitrary exercise of the privilege of drivers of emergency vehicles exempted them from statutory liability. The applicability of Reed is questionable because the deputies used reasonable care in this case, and, therefore, the question of foreseeability does not arise.

Whitton, on the other hand, supports the idea that foreseeability should not be an issue in this case. In Whitton the police stopped a motorist who was subsequently injured when another vehicle hit the police car which then struck Whitton. The case went to the jury on the question of whether the officers acted in a reasonable manner, based on the circumstances. The appellate court stated that "the jury's verdict, finding defendants not negligent, indicates that the jury accepted the substantial evidence that the officers did not place or compel plaintiff to remain between the two cars and that she was not at such position at the moment of the impact." 98 Cal. App. 3d at 242, 159 Cal. Rptr. at 409.

The court went on to discuss the heart of Whitton's claim, i.e., that the traffic stop imposed an absolute liability on the officers. The court refused to accept this idea and stated:

The relationship of CHP officer and stopped motorist does not impose on the officer a higher duty, such as guardian or guarantor, against a hazard no more known to occur or foreseeable to the officer than to any other user of the highway. Absent some evidence of the officer's actual knowledge of some history at that particular place and at that particular time an accident is likely to occur, or that a drunken driver is likely to strike the vehicles, it is unjust to charge the officer with special foreseeability of such events. That hazard is as known to users of the freeways as it is to the officers and cannot be eliminated. Appellant presented no evidence and has demonstrated no reason for such a rule of almost absolute liability. There was nothing produced in evidence and nothing has been explained here which demonstrates why the fortuitous event of a drunken driver hitting the parked vehicles should make the officer automatically liable. Irrespective of this shortcoming in her case, appellant continues to argue that the drunken driver's collision was foreseeable. This is not the foreseeability upon which the law of negligence is based. The conduct of the respondents was not the cause-in-fact or the substantial factor in law in bring[ing] about the harm to the plaintiff. When the law says a person substantially contributes to the injury, the law is dealing with responsibility based on reasonable expectations and a common-sense approach to fault not physics.

*741 Id. at 242-43, 159 Cal. Rptr. at 409. The court went on to state that when an officer stops a motorist on the shoulder of the highway and allows the motorist to remain in or near the area, such officer is not negligent simply because there is a possibility that a drunken driver might collide with such vehicles parked on the shoulder and off the traveled lane. All possibilities of risk even if "foreseeable" in the abstract as possibilities cannot be eliminated. There was no evidence in the case at bench that any of the risks to plaintiff, and which are common to all users of the public area, was increased by any negligent conduct on the part of respondent.

Id. at 244, 159 Cal. Rptr. at 210.

Every case cited by the majority is an instance where the police created an unreasonable risk because of the nature of the roadway, time of day, and the like. None of these were in broad daylight on an unobstructed road as we have here.

I believe it would be accurate to state in this case that a law enforcement officer's goal to protect the citizens is a goal for all the public. Such goals, however, do not create duties in tort. A law enforcement officer's duty to an individual citizen is an assumed duty which exists when the law enforcement officer takes action that justifies a citizen to reasonably rely upon the officer for protection.

There was no reasonable reliance by the plaintiff in this case. When he selected the specific location to stop, decided where to go, and where to stand, he had no legitimate expectation that the police would protect him from a motor vehicle accident arising out of the negligence of a third party. Kaisner has a valid claim against the driver causing the accident. It should stop there.

NOTES

[1] In a related action, the trial court issued a declaratory judgment that, if governmental immunity was not a bar, plaintiffs could claim against both the motor vehicle policy and a police professional liability policy. The Second District affirmed. Kolb v. Kaisner, 437 So. 2d 681 (Fla. 2d DCA 1983).

[2] We implicitly recognized this distinction in Trianon when we noted that some activities of police officers in carrying out their duties, such as the way motor vehicles or firearms are used, may be actionable. Trianon Park Condominium Ass'n v. City of Hialeah, 468 So. 2d 912, 920 (Fla. 1985). We do not consider these two examples to be an exhaustive list of all possible actionable activities involving law enforcement officers.

[3] We emphasize, however, that the facts of this case present no countervailing interests, such as the safety of others. The result we reach today would not necessarily be the same had the officers in this instance been confronted with an emergency requiring swift action to prevent harm to others, albeit at the risk of harm to petitioners. The way in which government agents respond to a serious emergency is entitled to great deference, and may in fact reach a level of such urgency as to be considered discretionary and not operational.

[4] Chapter 87-134, section 5, Laws of Florida, provides:

This act shall take effect upon becoming a law and shall apply to all causes of action then pending or thereafter filed, but shall not apply to any cause of action to which a final judgment has been rendered or in which the jury has returned a verdict unless such judgment or verdict has been or shall be reversed.

[*] I would like to add that Judge Cowart, in his concurring/dissenting opinion in Walston, properly analyzed the law relative to those facts. The driver had been placed under arrest and the principle enunciated in section 314A applied to the arrested driver, but not to the unarrested passenger.

~~~~~~~~~~~~~

Jackson v. Ryder Truck Rental, Inc.

Court of Appeal of California, Third Appellate

July 12, 1993, Decided

No. C013093

16 Cal. App. 4th 1830

FRANCES MARIE JACKSON, Individually and as Special Administrator, etc., et al., Plaintiffs and Appellants, v. RYDER TRUCK RENTAL, INC., Defendant and Respondent.

Subsequent History:

Review Denied October 21, 1993, Reported at: 1993 Cal. LEXIS 5565.

Prior History:

Superior Court of Sacramento County, No. CV337112, Joe S. Gray, Judge.

CALIFORNIA OFFICIAL REPORTS HEADNOTES
Classified to California Digest of Official Reports

CA(1) (1) Summary Judgment § 25—Appellate Review—Affirmance Where Motion Properly Granted on any Ground.

--If summary judgment was properly granted on any ground, the appellate court must affirm regardless of whether the trial court's reasoning was correct.

CA(2) (2) Summary Judgment § 26—Appellate Review—Scope of Review.

--On appeal from a summary judgment, the appellate court reviews the parties' papers supporting and opposing the motion, using the same method of analysis as the trial court. The moving party bears the burden of proving that the claims of the adverse party are entirely without merit on any legal theory. The opposition must demonstrate only the existence of at least one triable issue of fact, and all doubts as to the propriety of granting the motion must be resolved in favor of the party opposing the motion.

CA(3) (3) Negligence § 83—Actions—Sufficiency of Evidence—To Prove Negligence—Servicing Company's Maintenance of Truck.

--In a wrongful death action against a truck servicing company that had contracted to maintain the vehicle that the decedent was driving when he pulled off the highway and, while standing on the shoulder, was struck by another vehicle, the evidence adduced by plaintiffs in opposition to defendant's motion for summary judgment was sufficient to support the conclusion that defendant negligently maintained the truck and that this negligence caused the decedent to pull the truck off the road. The evidence indicated that the truck had experienced repeated electrical problems that had not been adequately fixed. This was sufficient to show that defendant negligently maintained the truck. Further, the history of electrical problems, plus the fact that the truck's electrical system was found totally inoperable at the scene of the accident, permitted the reasonable inference that the decedent pulled the truck off the road because it was disabled by electrical failure.

CA(4a) (4a) CA(4b) (4b) CA(4c) (4c) Negligence § 9.2—Elements of Actionable Negligence—Duty of Care—Truck Servicing Company's Duty to Driver of Truck It Was Responsible for Maintaining.

--A truck servicing company that had contracted to maintain another company's vehicles owed a duty of care to the other company's employee, who, while driving one of the servicing company's trucks, pulled off the road, allegedly as the result of the failure of the truck's electrical system, and, while standing on the shoulder, was struck by another vehicle. The servicing company not only owed a duty of ordinary care as an independent contractor to maintain the vehicles in a safe condition for driving, but it also had a duty to protect the employee against the other driver's conduct, since that conduct was a reasonably foreseeable consequence of the servicing company's negligence. As the servicing company's liability was grounded on malfeasance, and not nonfeasance, the company's lack of ability to control the conduct of the other driver was irrelevant. There was moral blame attached to the company's conduct if it was negligent as alleged. Moreover, imposing liability under the circumstances would help prevent future harm, and the burden imposed on the company by finding a duty was minimal, while the impact of this finding on the community would be beneficial.

CA(5a) (5a) CA(5b) (5b) Negligence § 3—Elements of Actionable Negligence.

--Actionable negligence is traditionally regarded as involving: (a) a legal duty to use due care; (b) a breach of that legal duty; and (c) the breach as the proximate or legal cause of the resulting injury. Under the duty approach to negligence, conduct is negligent when it creates an unreasonable risk of harm to some general class of persons. If the plaintiff is not within that class toward whom the defendant is negligent, the injury does not give rise to liability. While breach of duty and proximate cause normally present factual questions, the existence of a legal duty in a given factual situation is a question of law for the courts to determine.

CA(6) (6) Negligence § 9—Elements of Actionable Negligence—Duty of Care—Exceptions to General Rule.

--Exceptions to the general rule that all persons are required to use ordinary care to prevent others from being injured as the result of their conduct may be justified only by clear public policy.

CA(7) (7) Negligence § 9—Elements of Actionable Negligence—Duty of Care—Misfeasance and Nonfeasance: Words, Phrases, and Maxims—Misfeasance—Nonfeasance.

--A legal duty of care may be of two general types: the duty of a person to use ordinary care in activities from which harm might reasonably be anticipated, and an affirmative duty where the person occupies a particular relationship to others. In the first situation, the person is not liable unless he or she is actively careless; in the second, the person may be liable for failure to act affirmatively to prevent harm. Thus, in considering whether a person had a legal duty in a particular factual situation, a distinction must be made between claims of liability based upon misfeasance and those based upon nonfeasance. Misfeasance exists when the defendant is responsible for making the plaintiff's position worse, i.e., when the defendant has created a risk. Conversely, nonfeasance is found when the defendant has failed to aid the plaintiff through beneficial intervention. Liability for nonfeasance is largely limited to those circumstances in which some special relationship can be established. If, on the other hand, the act complained of is one of misfeasance, the question of duty is governed by the standards of ordinary care.

CA(8) (8) Negligence § 9—Elements of Actionable Negligence—Duty of Care —Balancing Test.

--In determining whether the defendant owed a duty of due care to the plaintiff in a given case, the courts apply a balancing test. The major considerations are the foreseeability of harm to the plaintiff, the degree of certainty the plaintiff suffered injury, the closeness of the connection between the defendant's conduct and the injury suffered, the moral blame attached to the defendant's conduct, the policy of preventing future harm, the extent of the burden to the defendant and consequences to the community of imposing a duty to exercise care with resulting liability for breach, and the availability, cost, and prevalence of insurance for the risk involved.

CA(9) (9) Negligence § 94—Actions—Questions of Law and Fact—Foreseeability of Harm.

--In deciding the question of foreseeability in the context of legal duty, a court does not determine whether a particular plaintiff's injury was reasonably foreseeable in light of a particular defendant's conduct, but rather evaluates more generally whether the category of negligent conduct at issue is sufficiently likely to result in the kind of harm experienced that liability may appropriately be imposed on the negligent party.

CA(10) (10) Negligence § 15—Elements of Actionable Negligence—Proximate Cause.

--An essential element of any cause of action for negligence is that the defendant's act or omission was a cause of the plaintiff's injury. Traditionally, the law has asked whether the defendant's conduct was the proximate cause of injury. The concept of proximate cause has two components. The first component is cause-in-fact. The test now applied to this component asks whether the particular cause was a substantial factor in bringing about injury. The second component asks whether the defendant should be held responsible for negligently causing the plaintiff's injury. This is a policy question, the normative or evaluative element of proximate cause.

CA(11) (11) Negligence § 20—Elements of Actionable Negligence—Proximate Cause—Intervening Causes—Intervening Wrong—Action Based on Servicing Company's Negligent Maintenance of Truck—Effect of Other Driver's Negligence.

--A truck servicing company that had contracted to maintain another company's vehicles was not relieved of liability to the other company's employee, who, while driving one of the company's trucks, pulled off the road, allegedly as the result of the failure of the truck's electrical system, and, while standing on the shoulder, was struck by another vehicle, even though the negligence of the other driver was a cause in fact of the employee's death. It could not be said that the employee's injury would have happened as it did regardless of the servicing company's negligence; without that negligence, the employee would not have been stranded by the side of a busy highway in the darkness without functioning lights. Thus, the servicing company's conduct was a substantial factor in bringing about the employee's death.

CA(12) (12) Negligence § 95—Actions—Questions of Law and Fact—Proximate Cause—When Intervening Cause Becomes Superseding Cause—Action Based on Servicing Company's Negligent Maintenance of Truck—Other Driver's Negligence.

--In a wrongful death action against a truck servicing company that had contracted to maintain another company's vehicles, which action arose after an employee of the other company, while driving one of the servicing company's trucks, pulled off the road, allegedly as the result of the failure of the truck's electrical system, and, while standing on the shoulder, was struck by another vehicle, the negligence of the other driver was not an intervening and superseding cause that cut off defendant's liability as a matter of law. In cases where an independent intervening force actively operates to produce the injury, if the risk of injury might have been reasonably foreseen, the defendant is liable, but if the independent intervening act is highly unusual or extraordinary, not reasonably likely to happen, and hence not foreseeable, it is a superseding cause, and the defendant is not liable. Under the circumstances, the foreseeability of the other driver's negligence was a question of fact that was required to go to the jury.
[See 6 Witkin, Summary of Cal. Law (9th ed. 1988) Torts, § 975.]

Counsel: Bolling, Walter & Gawthrop, T. D. Bolling, Jr., and Marjorie E. Manning for Plaintiffs and Appellants.

Matheny, Poidmore & Sears, Douglas A. Sears and Michael A. Bishop for Defendant and Respondent.

Judges: Opinion by Sims, Acting P. J., with Davis and Raye, JJ., concurring.

Opinion by: SIMS, Acting P. J.

Opinion

Plaintiffs Frances Marie Jackson, individually and as special administrator, etc., et al., appeal from a summary judgment in favor of defendant Ryder Truck Rental, Inc. (Ryder) in plaintiffs' lawsuit for wrongful death. We shall reverse the summary judgment.

FACTUAL AND PROCEDURAL BACKGROUND

A. FACTS.

Stated most favorably to plaintiffs, evidence adduced upon the motion for summary judgment showed the following:

The decedent, Loren Jackson, was an employee of S. B. Thomas Company (Thomas). On August 26, 1985, he was working as a relief driver servicing Thomas customers in Sacramento. Ryder had exclusive responsibility under contract with Thomas for inspection, preventive maintenance, service, and repair of Thomas vehicles in Sacramento. The Thomas employee who normally drove the truck used by the decedent had experienced many problems with the truck's electrical system and had reported those problems to Ryder, but electrical failures had persisted up to the date of the accident.

In the early morning hours of August 26, 1985, when it was still dark, the decedent pulled off eastbound Highway 50 onto the shoulder. After he got out of the truck, while standing on the shoulder about four feet south of the fog line, he was struck and seriously injured by a car driven by Valerie Ferra. Both decedent and Ferra were found unconscious when rescuers arrived at the accident scene. The California Highway Patrol officer who inspected the truck at the scene found its electrical system was completely inoperable.

The investigating officer found no evidence that Ferra had braked or attempted to take evasive action before the accident, indicating that she may have fallen asleep at the wheel. The officer opined that Ferra was speeding at the time of the accident.

The decedent died several months after the accident. Ferra survived, but suffered a complete memory loss as to the accident.

The history of repairs on the truck indicated the battery had been replaced five times in two years, during which time the vehicle had been driven only 30,000 miles. Plaintiffs' expert testified in deposition the vehicle was "eating batteries." The expert stated, "It appears to me that there was a longstanding electrical problem in this van which had not been adequately addressed. It seems like they were repairing or replacing parts, but not really fixing the problem, whatever it was."

B. PROCEDURE.

Plaintiffs, decedent's widow and children, filed this action for negligent wrongful death in February 1986.

In January 1992, Ryder moved for summary judgment on four separate grounds: (1) that the evidence showed no negligent maintenance of the truck; (2) that Ryder's duty to use due care did not extend to the risk encountered by the decedent because Ferra's conduct was not foreseeable; (3) that Ryder's conduct was not the proximate cause of the accident because it was Ferra's conduct which actually injured the decedent; and (4) that Ryder was not liable for the decedent's death because Ferra's conduct was an intervening, superseding cause of the collision.

At the hearing on the motion, the trial court stated, "We assume [Ryder is] negligent. I mean, that's a given." The trial court concluded Ryder's negligence was not a proximate cause of the accident. The trial court thereupon entered judgment dismissing plaintiffs' complaint. This appeal followed.

DISCUSSION

I STANDARD OF REVIEW

A motion for summary judgment is properly granted if the papers submitted show that there is no triable issue as to any material fact and that the moving party is entitled to a judgment as a matter of law. ( Code Civ. Proc., § 437c, subd. (c).) If summary judgment was properly granted on any ground, we must affirm regardless of whether the court's reasoning was correct. ( Troche v. Daley (1990) 217 Cal.App.3d 403, 407-408 [266 Cal.Rptr. 34].)

We independently review the parties' papers supporting and opposing the motion, using the same method of analysis as the trial court. ( AARTS Productions, Inc. v. Crocker National Bank (1986) 179 Cal.App.3d 1061, 1064-1065 [225 Cal.Rptr. 203].) The moving party bears the burden of proving that the claims of the adverse party are entirely without merit on any legal theory. ( Mann v. Cracchiolo (1985) 38 Cal.3d 18, 35-36 [210 Cal.Rptr. 762, 694 P.2d 1134].) The opposition must demonstrate only the existence of at least one triable issue of fact ( AARTS, supra, 179 Cal.App.3d at p. 1065), and all doubts as to the propriety of granting the motion must be resolved in favor of the party opposing the motion. ( Molko v. Holy Spirit Assn. (1988) 46 Cal.3d 1092, 1107 [252 Cal.Rptr. 122, 762 P.2d 46].)

II NEGLIGENT MAINTENANCE OF THE TRUCK

At various points in its brief, Ryder asserts there was no evidence showing it negligently maintained the subject truck, or that the negligence caused the truck to pull off the freeway.

This argument is not well taken.

In determining the propriety of a motion for summary judgment, we are to consider "all inferences reasonably deducible from the evidence, except summary judgment shall not be granted by the court based on inferences reasonably deducible from the evidence, if contradicted by other inferences or evidence, which raise a triable issue as to any material fact." ( Code Civ. Proc. § 437c, subd. (c).)

Here, the evidence recounted above indicated the truck had experienced repeated electrical problems that had not been adequately fixed. This evidence is sufficient to show Ryder negligently maintained the truck. Moreover, the history of electrical problems, plus the fact that the truck's electrical system was found totally inoperable at the scene of the accident, permit the reasonable inference that the truck pulled off the freeway because it was disabled by electrical failure. Ryder's contentions to the contrary are without merit.

III DUTY

We turn to the question of whether, in the circumstances, Ryder owed plaintiffs' decedent a duty of care.

"Actionable negligence is traditionally regarded as involving the following: (a) a legal duty to use due care; (b) a breach of such legal duty; (c) the breach as the proximate or legal cause of the resulting injury." (6 Witkin, Summary of Cal. Law (9th ed. 1988) Torts, § 732, p. 60, and cases cited.) "Under the duty approach [to negligence], conduct is negligent when it creates an unreasonable risk of harm to some general class of persons. If the plaintiff is not within that class toward whom the defendant is negligent, the injury does not give rise to liability. (See Rest.2d, Torts § 281." (6 Witkin, op. cit. supra, § 733, p. 61.)

". . . [E]very case is governed by the rule of general application that all persons are required to use ordinary care to prevent others from being injured as the result of their conduct." ( Weirum v. RKO General, Inc. (1975) 15 Cal.3d 40, 46 [123 Cal.Rptr. 468, 539 P.2d 36]; Civ. Code, § 1714.) Exceptions to this rule may be justified only by clear public policy. ( Rowland v. Christian (1968) 69 Cal.2d 108, 112 [70 Cal.Rptr. 97, 443 P.2d 561, 32 A.L.R.3d 496].)

"While breach of duty and proximate cause normally present factual questions, the existence of a legal duty in a given factual situation is a question of law for the courts to determine. [Citation.]" ( Andrews v. Wells (1988) 204 Cal.App.3d 533, 538 [251 Cal.Rptr. 344].)

"As Witkin notes, '[t]he "legal duty" of care may be of two general types: (a) the duty of a person to use ordinary care in activities from which harm might reasonably be anticipated[;] (b) [a]n affirmative duty where the person occupies a particular relationship to others. In the first situation, he is not liable unless he is actively careless; in the second, he may be liable for failure to act affirmatively to prevent harm.' (6 Witkin, [Summary of Cal. Law, op. cit. supra, Torts], § 732, p. 61; citations omitted.) Thus, in considering whether a person had a legal duty in a particular factual situation, a distinction must be made between claims of liability based upon misfeasance and those based upon nonfeasance. 'Misfeasance exists when the defendant is responsible for making the plaintiff's position worse, i.e., defendant has created a risk. Conversely, nonfeasance is found when the defendant has failed to aid plaintiff through beneficial intervention. . . . Liability for nonfeasance is largely limited to those circumstances in which some special relationship can be established. If, on the other hand, the act complained of is one of misfeasance, the question of duty is governed by the standards of ordinary care . . ..' (Weirum, [supra,] 15 Cal.3d [at p.] 49 []; see also Clarke v. Hoek [1985] 174 Cal.App.3d [208,] 215-216.)" ( Andrews, supra, 204 Cal.App.3d at pp. 538-539.)

Here, Ryder does not dispute that it owed a duty of ordinary care as an independent contractor to maintain Thomas's trucks in a condition reasonably safe for driving, and that the decedent, a Thomas employee who drove those trucks, belonged to the class of persons to whom Ryder owed that duty. ( Rest.2d Torts, § 403; 6 Witkin, Summary of Cal. Law, op. cit. supra, Torts, § 949, p. 333, and cases cited.) However, Ryder denies that this duty extended so far as to render it liable to the decedent under these circumstances. In Ryder's view, it had no duty either to protect the decedent against Ferra's allegedly unforeseeable conduct or to control that conduct in the absence of a special relationship between Ryder and the decedent. Ryder is mistaken.

In determining whether the defendant owed a duty of due care to the plaintiff in a given case, the courts have applied the balancing test derived from Rowland v. Christian, supra, 69 Cal.2d at page 113: ". . . [T]he major [considerations] are the foreseeability of harm to the plaintiff, the degree of certainty the plaintiff suffered injury, the closeness of the connection between the defendant's conduct and the injury suffered, the moral blame attached to the defendant's conduct, the policy of preventing future harm, the extent of the burden to the defendant and consequences to the community of imposing a duty to exercise care with resulting liability for breach, and the availability, cost, and prevalence of insurance for the risk involved." As we explain, each of these factors tells in favor of finding that Ryder owed a duty of due care to protect the decedent from the type of risk he actually encountered.

A. FORESEEABILITY OF HARM TO THE PLAINTIFF.

In deciding the question of foreseeability in the context of legal duty, "a court's task--in determining 'duty'--is not to decide whether a particular plaintiff's injury was reasonably foreseeable in light of a particular defendant's conduct, but rather to evaluate more generally whether the category of negligent conduct at issue is sufficiently likely to result in the kind of harm experienced that liability may appropriately be imposed on the negligent party." ( Ballard v. Uribe (1986) 41 Cal.3d 564, 573, fn. 6 [224 Cal.Rptr. 664, 715 P.2d 624].)

Here, the question of foreseeability is settled by the decision of our Supreme Court in Bigbee v. Pacific Tel. & Tel. Co. (1983) 34 Cal.3d 49 [192 Cal.Rptr. 857, 665 P.2d 947].

In Bigbee, the plaintiff was injured, according to his complaint, when an automobile driven by a drunk driver in the early morning hours veered off the road and struck the telephone booth in which he was standing. The booth was located in a parking lot 15 feet from the side of a major thoroughfare and near a driveway, and evidence was presented that a previous booth at the same location had been struck similarly. The trial court granted summary judgment for the defendant telephone company, which had installed the booth at that location--apparently on the ground that the accident which occurred was unforeseeable as a matter of law. 1Link to the text of the note (34 Cal.3d at pp. 52-55.)

The Supreme Court reversed. Stating the key question as whether the risk that a car might crash into the phone booth and injure plaintiff was reasonably foreseeable, the court went on to cite the rule that foreseeability is a jury question unless the undisputed facts leave no room for a reasonable difference of opinion. ( Bigbee, supra, 34 Cal.3d at p. 56.) The court further explained: " 'Foreseeability is not to be measured by what is more probable than not, but includes whatever is likely enough in the setting of modern life that a reasonably thoughtful person would take account of it in guiding practical conduct. . . . One may be held accountable for creating even ' "the risk of a slight possibility of injury if a reasonably prudent person would not do so.' " . . . Moreover, it is settled that what is required to be foreseeable is the general character of the event or harm--e.g., being struck by a car while standing in a phone booth--not its precise nature or manner of occurrence." (Id. at pp. 57-58, citations omitted.)

Applying these rules, the court found not only that the risk which caused the plaintiff's injury was not unforeseeable as a matter of law, but that "in light of the circumstances of modern life, it seems evident that a jury could reasonably find that defendants should have foreseen the possibility of the very accident which actually occurred here. Swift traffic on a major thoroughfare late at night is to be expected. Regrettably, so too are intoxicated drivers. [Citations.] Moreover, it is not uncommon for speeding and/or intoxicated drivers to lose control of their cars and crash into poles, buildings or whatever else may be standing alongside the road they travel--no matter how straight and level that road may be." ( Bigbee, supra, 34 Cal.3d at p. 58, italics added; accord, Bloomberg v. Interinsurance Exchange (1984) 162 Cal.App.3d 571, 576-577 [207 Cal.Rptr. 853].)

Finally, the court rejected the argument that the defendant was excused from liability because the plaintiff's harm came about through the driver's negligent or reckless acts: " 'If the likelihood that a third person may act in a particular manner is the hazard or one of the hazards which makes the actor negligent, such an act whether innocent, negligent, intentionally tortious, or criminal does not prevent the actor from being liable for harm caused thereby.' " ( Bigbee, supra, 34 Cal.3d at p. 58, quoting Rest.2d Torts, § 449, italics added.)

Here, as in Bigbee, the defendant is alleged to have negligently placed the victim in a position in which he was exposed to the danger of an intoxicated or otherwise out-of-control driver veering off course on a highway in darkness and crashing into whatever lay in her path. (34 Cal.3d at p. 58.) Bigbee holds that such a danger is a reasonably foreseeable consequence of the defendant's negligence. (Ibid.)

Ryder makes no argument that Bigbee is inapposite or that it should be limited to its facts. We conclude Bigbee controls here.

Arguing to the contrary, Ryder asserts in reliance on Kane v. Hartford Accident & Indemnity Co. (1979) 98 Cal.App.3d 350, 355-357 [159 Cal.Rptr. 446]: "Foreseeability of the risk actually encountered is [necessary to a finding of duty]." (Italics added.) In Ryder's view, under this rule it was not reasonably foreseeable that the decedent would be struck by an errant vehicle "while standing on the shoulder of the roadway four feet inside the fog line." This ultra-specific manner of defining "the risk actually encountered" is not supported by Kane itself; therefore, Ryder's reliance on Kane is misplaced.

In Kane, the plaintiff was raped on the premises of a hospital by an employee of an independent contractor which provided services to the hospital. The plaintiff alleged liability against the defendant, the insurer which bonded the employee, on the grounds that if the defendant had investigated the employee's background with due care, it would have discovered that he had an extensive record of property-related crimes, including burglary, theft, and robbery; had it discovered this fact, defendant would not have bonded the employee and the hospital would not have hired him. (98 Cal.App.3d at pp. 352-354.) The reviewing court, upholding a judgment of nonsuit for the defendant, reasoned that the defendant could not have determined by any investigation that its employee represented a threat of physical harm to anyone--it would have discovered that "the foreseeable risk, if any, was for property-related crimes, not violent crimes to persons." ( Kane, supra, 98 Cal.App.3d at p. 357.) 2Link to the text of the note In other words, the court in Kane described the risk which was reasonably foreseeable as a matter of law as a "particular kind of harm," i.e., property-related crimes ( Ballard, supra, 41 Cal.3d at p. 573, fn. 6), and held that the risk actually encountered by the plaintiff was not within that foreseeable class of harms. Had the plaintiff suffered theft or robbery at the employee's hands, such a risk would have been foreseeable under Kane even if the perpetrator had not carried out his crime in exactly the same manner as he had committed the same crime before. By the same token, the precise details of the decedent's accident in the present case are not dispositive in deciding whether the harm he suffered was reasonably foreseeable as a matter of law under a duty analysis.

Ryder further asserts, relying mainly on Richards v. Stanley (1954) 43 Cal.2d 60 [271 P.2d 23] and its progeny, that it had no duty to protect the decedent against the risk he encountered because it could not control the conduct of the third party who injured him and was under no duty to do so absent a special relationship with him, which plaintiffs have not alleged. This argument wrongly presumes that plaintiffs seek to ground Ryder's liability on mere nonfeasance or inaction, whereas in reality plaintiffs allege malfeasance, an affirmative act which exposed the decedent to the risk he encountered. This distinction renders the cases Ryder relies on inapposite.

The Supreme Court explained the malfeasance-nonfeasance distinction and its implications in Weirum v. RKO General, Inc., supra: "Defendant, relying upon the rule stated in section 315 of the Restatement Second of Torts, urges that it owed no duty of care to decedent. The section provides that, absent a special relationship, an actor is under no duty to control the conduct of third parties. . . . [T]his rule has no application if the plaintiff's complaint . . . is grounded upon an affirmative act of defendant which created an undue risk of harm. [P] The rule stated in section 315 is merely a refinement of the general principle embodied in section 314 that one is not obligated to act as a 'good samaritan.' . . . This doctrine is rooted in the common law distinction between action and inaction, or misfeasance and nonfeasance. Misfeasance exists when the defendant is responsible for making the plaintiff's position worse, i.e., defendant has created a risk. Conversely, nonfeasance is found when the defendant has failed to aid plaintiff through beneficial intervention. As section 315 illustrates, liability for nonfeasance is largely limited to those circumstances in which some special relationship can be established. If, on the other hand, the act complained of is one of misfeasance, the question of duty is governed by the standards of ordinary care . . .. P . . . [Where] liability is not predicated upon defendant's failure to intervene for the benefit of decedent but rather upon its creation of an unreasonable risk of harm to him . . . [,] . . . reliance upon cases which involve the failure to prevent harm to another is . . . misplaced . . .." (15 Cal.3d at pp. 48-49, italics added and citations and fn. omitted.)

Here, as in Weirum, defendant's reliance on the special- relationship rule to assert that it had no duty to control the conduct of the third party who injured the decedent is misplaced. Plaintiffs did not need to assert the existence of a special relationship between Ryder and the decedent because plaintiffs' theory of liability is grounded on Ryder's alleged misfeasance (creating the risk to the decedent and making his position worse by causing him to drive an unsafe vehicle likely to break down on the highway), not on nonfeasance. Accordingly, the question of liability turns on the ordinary duty of due care, not on the existence of a special relationship.

Richards v. Stanley, supra, 43 Cal.2d 60, and its progeny address the "key-in-the-ignition" problem: when a car owner leaves the keys in the ignition, allowing a thief to steal the car, and the thief harms a third person while driving, is the owner liable in tort to the victim of the thief's negligent driving? Richards and most of the subsequent cases have held that the car owner owed no duty to protect the victim against this particular risk. ( Richards, supra, 43 Cal.2d at pp. 65-66; Avis Rent a Car System, Inc. v. Superior Court (1993) 12 Cal.App.4th 221 [15 Cal.Rptr.2d 711]; Archer v. Sybert (1985) 167 Cal.App.3d 722, 729-730 [213 Cal.Rptr. 486]; Kiick v. Levias (1980) 113 Cal.App.3d 399, 404-406 [169 Cal.Rptr. 859]; Hosking v. San Pedro Marine, Inc. (1979) 98 Cal.App.3d 98, 104-106159 Cal.Rptr. 369]; and fn. 4 [ Brooker v. El Encino Co. (1963) 216 Cal.App.2d 598, 602 [31 Cal.Rptr. 24]; Holder v. Reber (1956) 146 Cal.App.2d 557, 560 [304 P.2d 204]; but see Richardson v. Ham (1955) 44 Cal.2d 772, 776 [285 P.2d 269] [unattended bulldozer foreseeably attracted unauthorized and unskilled operators]; Hergenrether v. East (1964) 61 Cal.2d 440, 445- 446 [39 Cal.Rptr. 4, 393 P.2d 164] [unattended truck left overnight in high-crime neighborhood "unusual invitation to theft" by untrained operators]; Palma v. U.S. Industrial Fasteners, Inc. (1984) 36 Cal.3d 171, 186 [203 Cal.Rptr. 626, 681 P.2d 893] [same]; Ballard v. Uribe, supra, 41 Cal.3d at pp. 572-573 ["aerial manlift" foreseeably misused by unskilled employee].)

Even assuming the holding of Richards is still good law (see Ballard, supra, 41 Cal.3d at p. 572, fn. 5, and pp. 585-586; Palma, supra, 36 Cal.3d at p. 186, fn. 13; Archer, supra, 167 Cal.App.3d at pp. 729-730; Kiick, supra, 113 Cal.App.3d at pp. 404-406), the Richards rule is inapposite here. In the standard Richards situation the car owner's negligence is minimal, a moment's inattention. Moreover, it is not the failure to perform a duty of care owed to a particular person or class of persons known to the defendant. In addition, the link between this negligence and the victim's harm is truly "remote and tenuous," as the court made clear in Richards: "In the present case Mrs. Stanley did not leave her car in front of a school where she might reasonably expect irresponsible children to tamper with it . . ., nor did she leave it in charge of an intoxicated passenger. . . . By leaving the key in her car she at most increased the risk that it might be stolen. Even if she should have foreseen the theft, she had no reason to believe that the thief would be an incompetent driver. In view of the fact that the risk of negligent driving she created was less than the risk she might intentionally have created without negligence by entrusting her car to another, and in light of the rule that she owed no duty to protect plaintiff from harm resulting from the activities of third persons [absent a special relationship between the parties], we conclude that her duty to exercise reasonable care in the management of her automobile did not encompass a duty to protect plaintiff from the negligent driving of a thief." (43 Cal.2d at p. 66, citations omitted.)

By contrast, here Ryder is accused of negligently failing to perform a specific duty owed to the decedent, a form of negligence which foreseeably exposed him to the very kind of risk he encountered. This conduct does not much resemble that of the defendant in Richards. Thus Richards and its progeny do not help Ryder.

B. THE CLOSENESS OF THE CONNECTION BETWEEN THE DEFENDANT'S NEGLIGENCE AND THE VICTIM'S HARM.

As the discussion above has suggested, this factor counts in plaintiffs' favor when the nature of the risk the decedent encountered is correctly defined. Ryder argues vainly to the contrary by asserting its lack of negligence (a contention we have rejected, ante) and by reiterating its overly specific characterization of the risk which caused the decedent's harm. Ryder also relies on Baldwin v. Zoradi (1981) 123 Cal.App.3d 275 [176 Cal.Rptr. 809], which likewise does not assist it.

In Baldwin the plaintiff, a university student, was injured by a fellow student who had consumed alcohol in his dormitory, then engaged in a speed driving contest. The plaintiff sued the trustees of the university and two dormitory advisors on the theory that they were responsible for her injury because they had failed to control the drinking of students living in their dormitories. Since the plaintiff's theory of liability hinged on an allegation of nonfeasance rather than of malfeasance ( Weirum, supra, 15 Cal.3d at p. 49), the court looked to whether there was any special relationship between the plaintiff and the defendant trustees that imposed on the defendants a duty to protect the plaintiff against harms caused by third persons. (123 Cal.App.3d at p. 281.) Finding none, the court upheld the dismissal of plaintiff's complaint on demurrer. (Id. at pp. 290-291.) Since plaintiffs here allege misfeasance rather than nonfeasance, Baldwin does not help Ryder. 3Link to the text of the note

C. THE MORAL BLAME ATTACHING TO THE DEFENDANT'S CONDUCT.

There can be no doubt that if Ryder was negligent as alleged, moral blame would attach to its negligence on these facts. Ryder disputes this premise only by repeating the assertions as to its lack of negligence and the unforeseeability of the decedent's accident which we have already rejected.

D. THE POLICY OF PREVENTING FUTURE HARM.

Ryder asserts that imposing a duty or finding proximate cause on these facts would cause future harm because it would encourage people to drive aberrantly and injure others if they knew they could spread their liability for such conduct. We cannot agree. Imposing a duty of due care to protect a foreseeable plaintiff against a foreseeable risk does not encourage negligence in third parties, and if negligent third parties are able to "spread" liability to others who have properly incurred it by failing to exercise due care, those others are encouraged to perform their duties with greater care in the future and to insure themselves against the consequences of any future negligence--a result in keeping with the policy of preventing future harm.

E. THE IMPACT ON THE COMMUNITY AND THE BURDEN ON THE DEFENDANT FROM IMPOSING LIABILITY.

Relying on Bartell v. Palos Verdes Peninsula Sch. Dist. (1978) 83 Cal.App.3d 492 [147 Cal.Rptr. 898] and Jamison v. Mark C. Bloome Co. (1980) 112 Cal.App.3d 570 [169 Cal.Rptr. 399], Ryder contends that imposing a duty on it under these facts would intolerably burden it and would produce a result contrary to the desired goal by forcing the automobile maintenance industry to raise its rates prohibitively. Ryder's authorities are inapposite and its prediction of an adverse impact on the community is wholly speculative.

In Bartell, supra, the court held that the defendant school board had no duty to maintain "virtual round-the-clock supervision or prison-tight security for school premises" (83 Cal.App.3d at p. 500) in order to prevent children from entering school grounds after hours; therefore, the defendant was not liable for the death of plaintiffs' son in a skateboarding accident on a school playground when school was not in session. (83 Cal.App.3d at pp. 496, 500.) Assuming Bartell is still good law (but see Swaner v. City of Santa Monica (1984) 150 Cal.App.3d 789, 808, fn. 8 [198 Cal.Rptr. 208]), the court's concern about the danger of "imposing a financial burden which manifestly would impinge on the very educational purposes for which the school exists" (83 Cal.App.3d at p. 500) has no relevance here.

To find that Ryder had a duty to exercise due care to maintain the trucks entrusted to it for that purpose under contract would impose no financial burden that Ryder did not voluntarily assume by seeking out the maintenance contract. Unlike the financial burden described by the court in Bartell, the "burden" of which Ryder complains is inherent in its chosen function as a company in the truck maintenance business. We will not presume on the strength of a speculative assertion in Ryder's appellate brief that Ryder cannot carry out this function with due care unless it raises its rates prohibitively.

In Jamison, supra, the court found that defendant automobile servicing company had no duty to protect passersby from slipping and falling on oil which had spilled from storage drums on defendant's premises and leaked onto the sidewalk without defendant's knowledge (presumably due to vandalism by unknown third persons), on the grounds that "To impose liability under the facts of this case would be virtually to make defendant the insurer of the safety of all persons who might be injured by this inherently beneficial activity [storing oil for recycling]. The economic burden thus involved far outweighs the apparent risk." (112 Cal.App.3d at pp. 580-581.) However, in Isaacs v. Huntington Memorial Hospital (1985) 38 Cal.3d 112 [211 Cal.Rptr. 356, 695 P.2d 653, A.L.R.4th 1747], the Supreme Court disapproved the rule, on which Jamison relied (112 Cal.App.3d at pp. 578-580), that "in the absence of prior similar incidents, an owner of land is not bound to anticipate the criminal activities of third persons, particularly where the wrongdoer was a complete stranger to both the landowner and the victim . . .." ( Isaacs, supra, 38 Cal.3d at p. 125.) The Supreme Court found that this rule misstated the issue of foreseeability, producing "arbitrary results and distinctions" as to what is "prior" and what is "similar," and "erroneously equating foreseeability of a particular act with previous occurrences of similar acts"; moreover, it contravened the public policies of preventing future harm and of compensating injured parties. (38 Cal.3d at p. 126.) Since the rationale underlying the result in Jamison is thus no longer good law, Jamison would not help Ryder even if it were closer on the facts than it is.

Thus, Ryder has offered no compelling argument or authority which would lead us to reject the conclusion that the burden imposed on Ryder by finding a duty on these facts is minimal and that the impact of this finding on the community is beneficial.

In short, application of the Rowland v. Christian (supra, 69 Cal.2d 108) test compels the finding that the general duty of exercising due care toward the decedent to protect him against the type of risk he encountered is properly imposed on Ryder as a matter of law under the facts of this case.

IV

CAUSATION

A. PROXIMATE CAUSE.

"An essential element of any cause of action for negligence is that the defendant's act or omission was a cause of the plaintiff's injury." ( Mitchell v. Gonzales (1991) 54 Cal.3d 1041, 1057 [1 Cal.Rptr.2d 913, 819 P.2d 872] (dis. opn. of Kennard, J.).)

Traditionally, the law has asked whether defendant's conduct was the "proximate" cause of injury. ( Mitchell, supra, 54 Cal.3d at pp. 1048-1049.)

Under traditional causation analysis, the concept of proximate cause had two components. First, proximate cause asked the question: was defendant's conduct the cause-in-fact of plaintiff's injury? ( Mitchell, supra, 54 Cal.3d at p. 1056, dis. opn. of Kennard, J.) This meant: was defendant's conduct a necessary antecedent to plaintiff's injury? ( Maupin v. Widling (1987) 192 Cal.App.3d 568, 573 [237 Cal.Rptr. 521].) Second, "Proximate cause asks the larger, more abstract question: should the defendant be held responsible for negligently causing the plaintiff's injury? [Citation.]" (Ibid., italics added.) This second component of proximate cause, which asks a policy question, has been termed the "normative or evaluative element" of proximate cause. ( Mitchell v. Gonzales, supra, 54 Cal.3d at p. 1056 (dis. opn. of Kennard, J.; see also Evan F. v. Hughson United Methodist Church (1992) 8 Cal.App.4th 828, 834-835 [10 Cal.Rptr.2d 748].)

In Mitchell v. Gonzales, supra, 54 Cal.3d 1041, our Supreme Court recently disapproved the standard proximate cause instruction given the jury--former BAJI No. 3.75. 4Link to the text of the note (At p. 1054.) The court adopted a test of causation that asks whether a cause is a substantial factor in bringing about injury. 5Link to the text of the note ( Mitchell, supra, 54 Cal.3d at pp. 1051- 1052.)

In effecting this change, the court indicated it was intending to affect only the first prong of traditional proximate cause analysis, i.e. whether defendant's act or omission was a cause-in-fact of plaintiff's injury. ( Mitchell, supra, 54 Cal.3d at p. 1049, fn. 4.) Put differently, the traditional policy-analysis prong of proximate cause is unaffected by the instructional change brought about by Mitchell. We correctly assumed as much recently in Evan F. v. Hughson United Methodist Church, supra, 8 Cal.App.4th at page 835, where we concluded policy considerations prevented defendant's conduct from being the proximate cause of harm to plaintiff.

Although policy analysis remains a part of proximate cause analysis after Mitchell, we need not undertake an extensive analysis here. The policies urged by defendant to thwart a conclusion of proximate cause are the same policies that defendant advanced to negate a duty of care. We have addressed those policies, ante, and need not revisit them here.

B. CAUSE-IN-FACT: ARTHUR V. SANTA MONICA DAIRY CO.

Ryder cites Arthur v. Santa Monica Dairy Co. (1960) 183 Cal.App.2d 483 [6 Cal.Rptr. 808] as authority for the proposition that because the negligence of the driver who struck the decedent was the "cause in fact" of his injury (see Mitchell v. Gonzales, supra, 54 Cal.3d at p. 1044, fn. 2), Ryder's own negligence cannot be the legal cause of that injury. Ryder is wrong; Arthur does not support its position.

In Arthur, the plaintiff was a passenger in a car whose driver, after taking his eyes off the road to look for an item on the car floor, struck a double-parked truck belonging to the defendant company. The reviewing court, upholding a jury verdict for the defendant, held that despite the illegal parking of the truck there was no liability because the evidence at trial proved that the accident would have happened even if the truck had been legally where it was; thus the defendant's negligence did not cause the accident in any sense. (183 Cal.App.2d at pp. 488-490.) Here, by contrast, it cannot be said that the decedent's injury would have happened as it did regardless of Ryder's negligence: without that negligence, he would not have been stranded by the side of a busy highway in the early morning darkness without functioning lights. We conclude that construed most favorably to plaintiff, defendant's conduct was a substantial factor in bringing about plaintiff's injury.

C. INTERVENING AND SUPERSEDING CAUSE.

Ryder contends that the negligence of Valerie Ferra, whose vehicle struck decedent, was an intervening and superseding cause which cuts off Ryder's liability as a matter of law.

"Where, subsequent to the defendant's negligent act, an independent intervening force actively operates to produce the injury, the chain of causation may be broken. It is usually said that if the risk of injury might have been reasonably foreseen, the defendant is liable, but that if the independent intervening act is highly unusual or extraordinary, not reasonably likely to happen and hence not foreseeable, it is a superseding cause, and the defendant is not liable. [Citations.]" (6 Witkin, op. cit. supra, Torts, § 975, p. 366; see Pool v. City of Oakland (1986) 42 Cal.3d 1051, 1063-1064 [232 Cal.Rptr. 528, 728 P.2d 1163]; Rest.2d Torts, § 447, p. 478.)

A similar argument was rejected in Bloomberg v. Interinsurance Exchange, supra, 162 Cal.App.3d 571. The facts of that case are as follows: "Appellants' son Seth was a passenger in a car driven by David Camblin, also 16, on the night of September 20, 1980. While traveling on the Golden State Freeway the car developed engine trouble. Camblin pulled the car onto the shoulder of the road, near a callbox. At approximately 1:30 a.m., he placed a call that was answered by the California Highway Patrol (CHP), who transferred it to the Auto Club. The boys returned to the car to await the Auto Club's emergency assistance. An Auto Club tow truck dispatched at approximately 1:30 a.m. failed to locate the stalled car. About 2:25 a.m., an intoxicated driver crashed into the car, causing injuries to appellants' son that resulted in his death." (Id. at p. 574, fn. omitted.)

Plaintiffs sued the Auto Club for wrongful death. In a demurrer, the Auto Club claimed the act of the intoxicated driver was a superseding intervening cause that relieved the club of liability. The Court of Appeal rejected the contention as follows: "Generally, if the risk of injury might have been reasonably foreseen, a defendant is liable. If an independent, intervening act occurs which is highly unusual or extraordinary, not reasonably likely to happen and hence not foreseeable, it is considered a superseding cause and defendant is not liable. ( Akins v. County of Sonoma (1967) 67 Cal.2d 185, 199 []; Sanders v. Atchison, Topeka & Santa Fe Ry. Co. (1977) 65 Cal.App.3d 630, 650 [].) Among the possible dangers awaiting stranded motorists is injury or death caused by other drivers. In particular, intoxicated drivers are to be expected late at night. (See Coulter v. Superior Court (1978) 21 Cal.3d 144, 154 []; Bigbee v. Pacific Tel. & Tel. Co. (1983) 34 Cal.3d 49, 58 [].) It is 'not uncommon' and therefore foreseeable for intoxicated or speeding drivers to lose control 'and crash into poles, buildings or whatever else may be standing alongside the road they travel . . ..' ( Bigbee, supra, at p. 58.) Foreseeability of the risk is a question of fact. ( Weirum v. RKO General, Inc., supra, 15 Cal.3d 40, 46.)" ( Bloomberg, supra, 162 Cal.App.3d at pp. 576-577.)

Bloomberg controls here; the question of foreseeability must go to the jury.

Ryder relies heavily on two cases decided before Bigbee, supra, by the same division of a single appellate court-- Schrimscher v. Bryson (1976) 58 Cal.App.3d 660 [130 Cal.Rptr. 125] and Whitton v. State of California (1979) 98 Cal.App.3d 235 [159 Cal.Rptr. 405, 17 A.L.R.4th 886]--as authority for the proposition that the negligence of the driver who ran into the decedent was a superseding cause of his injury. We shall conclude these cases are distinguishable.

Both cases involve accidents on highways which occurred while officers of the California Highway Patrol (CHP), after detaining drivers, were processing their arrests by the roadside. In Schrimscher the officer, having arrested a drunk driver, was injured when a second drunk driver's car went out of control, ran off the highway, and struck the officer. (58 Cal.App.3d at pp. 662-663.) In Whitton one of the persons detained by the officer suffered injury when an out-of-control driver struck the officer's parked van, near which the victim was standing. (98 Cal.App.3d at pp. 238- 240.) In Schrimscher the reviewing court affirmed a grant of summary judgment against the injured officer in favor of defendant, drunk driver number one. (58 Cal.App.3d at p. 666.) In Whitton the reviewing court affirmed a jury verdict in favor of the defendant State of California, relying exclusively on its own holding in Schrimscher as to the issue pertinent here. 6Link to the text of the note (98 Cal.App.3d at pp. 241-244.)

1. SCHRIMSCHER.

In affirming the summary judgment against the CHP officer in Schrimscher, the court stated two separate rationales. First, the conduct of drunk driver number two was an independent intervening act which broke the chain of causation because it was unforeseeable as a matter of law, because it was "criminal in nature" and "not a natural or ordinary consequence of the situation created by the defendant," and because "the foreseeability of the likelihood of that conduct [was not] one of the factors contributing to the negligent character of defendant's conduct"; thus this conduct was a superseding cause of the officer's injury which relieved defendant of liability. (58 Cal.App.3d at pp. 664-665.) 7Link to the text of the note Second, as a matter of policy, persons arrested by traffic officers should not be liable in tort to those officers if, while the officers are performing their ordinary duties, they are injured by the acts of third parties (id. at p. 665).

The second rationale is a mere extension of the "firefighter's rule," and was so described both in Schrimscher itself (58 Cal.App.3d at p. 665) and in later cases citing Schrimscher. ( Walters v. Sloan (1977) 20 Cal.3d 199, 202-203 [142 Cal.Rptr. 152, 571 P.2d 609]; Farmer v. Union Oil Co. (1977) 75 Cal.App.3d 42, 46, 53 [141 Cal.Rptr. 848]; see also Bigbee, supra, 34 Cal.3d at p. 59, fn. 14 [citing Schrimscher as a case where "policy considerations . . . weigh[ed] against imposition of liability"].) Since that rationale does not apply here, we must decide whether the first rationale, which Ryder relies on, constitutes Schrimscher's true ratio decidendi. Whitton, decided after Schrimscher by the same court, throws light on this subject.

2. WHITTON.

In Whitton the parties agreed that after a drunk driver rear- ended the CHP van parked on the paved shoulder of the road, the injured plaintiff wound up between the van and her own car; however, they disagreed as to how she got there. According to the plaintiff, the officers had caused her to stand between the vehicles while processing her arrest. According to the defense, she was standing on the dirt side of the road, not on the paved shoulder, when the drunk driver appeared, and wound up between the vehicles due to one or another odd sequence of events. (98 Cal.App.3d at pp. 239- 240.) The jury found that the officers were not negligent in any respect. (Id. at p. 242.)

On appeal the plaintiff asserted that the CHP officers failed to exercise due care by placing her on the roadside because it was foreseeable that any vehicle which went off the road would rear-end the officers' van, exposing her to danger. ( Whitton, supra, 98 Cal.App.3d at p. 241.) The court construed the jury's verdict as a finding, supported by substantial evidence, in favor of the defense theory of how the accident happened. (Id. at p. 242.) Thus, in the court's view, the plaintiff was really contending that CHP officers had "some sort of absolute liability" for any accident which might occur during a stop on the shoulder of a highway--a conclusion the court rejected. (Ibid.) The court held that CHP officers have no duty to stopped motorists to make the place of stop totally safe (Ibid.) and cannot foresee the likelihood of a drunk driver going off the road at a given spot any better than any other highway user (unless they have actual knowledge of a history of accidents at that spot, which had not been shown here). (Id. at pp. 242-243.) Then, citing Schrimscher, supra, 58 Cal.App.3d at pages 664-665, the court held that the drunk driver's act in this case was not reasonably foreseeable "as a matter of law." ( Whitton, supra, 98 Cal.App.3d at p. 244.) The court concluded: "Comparison of [Schrimscher] to the [case] at bench illustrates the need to apply the same rule here. . . . To deny the officer the right to recover when he is injured in the performance of his duty, but on the other hand to impose liability on the officer for anyone else who might be hurt under the same circumstances not only would be unfair but would make shambles of whatever small measure of guidance remains in the doctrine of duty in the field of tort law." (Ibid., italics added.)

Thus, like Schrimscher, Whitton invokes both the "unforeseeability/superseding" cause rationale and the policy against imposing liability for accidents arising in the course of a CHP officer's duty. However, we must give great weight to Whitton's exegesis of Schrimscher's "rule," since the Whitton court was essentially the same as the Schrimscher court. Whitton's peroration, quoted above, on the significance of Schrimscher (98 Cal.App.3d at p. 244) leaves little doubt that the court which decided both cases saw public policy as the primary rationale for its rulings. Though Whitton is not, strictly speaking, a "firefighter's rule" case, its holding is similarly motivated by the desire to banish considerations of tort liability from the realm of traffic officers' routine job-related activities. (Cf. Bigbee, supra, 34 Cal.3d at p. 59, fn. 14; Walters, supra, 20 Cal.3d at p. 203; Farmer, supra, 75 Cal.App.3d at p. 46.)

Thus, Schrimscher and Whitton collectively stand for a narrow policy-based exception to standard rules of tort liability which does not apply to our case. Whatever grounds there may be for declaring tort questions off-limits as to the job duties of public safety officers, these grounds do not extend to the activities of private entities such as Ryder.

As the preceding discussion illustrates, the trial court erroneously granted Ryder's summary judgment motion.

DISPOSITION

The judgment is reversed. Appellants shall recover costs on appeal.

Davis, J., and Raye, J., concurred.

Respondent's petition for review by the Supreme Court was denied October 21, 1993. Panelli, J., was of the opinion that the petition should be granted.

Footnotes

    1Link to the location of the note in the document

    In recounting the procedural history of the case, the Supreme Court states that the parties argued the issues of duty and proximate cause at the hearing on the summary judgment motion, but does not specify whether the trial court expressly based its ruling on one or the other issue. ( Bigbee, supra, 34 Cal.3d at p. 55.) As we explain, the Supreme Court presents the dispositive question as one of foreseeability, whether considered under the heading of duty or of "proximate cause."

    2Link to the location of the note in the document

    Given that robbery, which the employee had committed, is a violent crime against the person, the court's conclusion on this point seems not entirely sound; however, this oversight does not detract from the validity of the court's general analysis.

    3Link to the location of the note in the document

    At oral argument, Ryder asserted that there was too remote a connection between Ryder's conduct and the harm caused the decedent. According to Ryder, there was a delay of five months between Ryder's last work on the electrical system and the accident, which occurred on August 26, 1985. However, plaintiffs' expert testified that Ryder's maintenance and service records show reports of electrical problems as late as July 16, 1985. Moreover, the regular driver of the subject vehicle, Timothy Harmon, drove the subject vehicle until the day before the accident, when the decedent took over as a relief driver. Harmon testified that electrical problems "persisted throughout the time I drove the van." In light of these facts, the connection between Ryder's conduct and harm to the decedent was not too remote to preclude a duty of care.

    4Link to the location of the note in the document

    Former BAJI No. 3.75 provided as follows: "A proximate cause of [injury] [damage] [loss] [or] [harm] is a cause which, in natural and continuous sequence, produces the [injury] [damage] [loss] [or] [harm] and without which the [injury] [damage] [loss] [or] [harm] would not have occurred."

    5Link to the location of the note in the document

    The 1992 revision of BAJI No. 3.76 reflects this change, as follows: "The law defines cause in its own particular way. A cause of [injury] [damage] [loss] [or] [harm] is something that is a substantial factor in bringing about an [injury] [damage] [loss] [or] [harm]."

    6Link to the location of the note in the document

    Two of the three justices who decided Schrimscher were also on the panel in Whitton.

    7Link to the location of the note in the document

    In asserting that the foreseeability of an independent intervening act alone is "[t]he general test of whether [such an act] breaks the chain of causation," Schrimscher relied on Custodio v. Bauer (1967) 251 Cal.App.2d 303, 316 [59 Cal.Rptr. 463, 27 A.L.R.3d 884]. Custodio, in turn, purported to derive this test from Gill v. Epstein (1965) 62 Cal.2d 611, 617-618 [401 P.2d 397]. (251 Cal.App.2d at p. 316.) However, Gill does not actually set out this test: it says only that "a chain of causation may be broken by an independent intervening act which is not reasonably foreseeable . . .." (62 Cal.2d at pp. 617-618, italics added.)

~~~~~~~~~~~~

McCorkle v. City of Los Angeles

Supreme Court of California

January 30, 1969

L. A. No. 29610

70 Cal. 2d 252

DEVON A. McCORKLE, Plaintiff and Respondent, v. CITY OF LOS ANGELES, Defendant and Appellant

Prior History:

APPEAL from a judgment of the Superior Court of Ventura County. Jerome H. Berenson, Judge.

Action for damages for personal injuries allegedly caused by the negligence of a city employee.

CALIFORNIA OFFICIAL REPORTS HEADNOTES

CA(1) (1) Appeal and Error—Orders Appealable—Interlocutory Orders—Process.

--On appeal from a judgment for plaintiff in a civil case, defendant city could not challenge the trial court's order denying its motion to quash service of summons on it as a fictitious defendant where defendant did not seek appellate review pursuant to Code Civ. Proc., § 416.3, which provides a method of obtaining appellate review of such an order, the availability of which precludes review of the order upon appeal from a judgment entered after trial on the merits, permits the moving party to defer a general appearance while pursuing the interlocutory appellate remedy, but does not relieve him of the consequences of a general appearance, and where defendant, by answering and going to trial on the merits, appeared generally and waived its jurisdictional objections.

CA(2) (2) Id.—Orders Appealable—Interlocutory Orders—Statutory Provisions—Construction.

--Code Civ. Proc., § 956, providing for review on appeal of certain intermediate rulings and orders, does not alter the rule that a general appearance constitutes a waiver of the jurisdictional objection regardless of whether the denial of a motion to quash service of summons is a ruling or order within the terms of the statute.

CA(3) (3) Id.—Orders Appealable—Interlocutory Orders—Process.

--A defendant may reserve his jurisdictional objection on appeal if, after the denial of his motion to quash service of summons, he makes no general appearance but suffers a default judgment; but a defendant may not avoid the fact of his waiver of the jurisdictional objection where, after denial of a motion to quash service of summons, defendant proceeds to defend on the merits.

CA(4a) (4a) CA(4b) (4b) Municipal Corporations—Torts—Liability for Acts of Officers or Agents.

--In a personal injury action, defendant city was not entitled to immunity from liability under Gov. Code, § 815.2, subd. (b), on the ground that the city employee involved (a policeman) was, at the time of the injury, performing a discretionary duty in investigating an accident and was therefore not liable for his act or omission (Gov. Code, § 820.2), where plaintiff's injury did not result from the officer's exercise of discretion, but from his negligence after the discretion, if any, had been exercised.

CA(5) (5) Id.—Torts—Liability for Acts of Officers or Agents.

--Classification of the act of a public employee as "discretionary" will not produce immunity under Gov. Code, § 820.2, if the injury to another results, not from the employee's exercise of "discretion vested in him" to undertake the act, but from his negligence in performing it after having made the discretionary decision to do so.

CA(6) (6) Id.—Torts—Actions—Instructions.

--In a personal injury action against a city, the giving of plaintiff's requested instruction that a police officer had the duty to investigate personal injury traffic accidents was not prejudicial so as to require reversal whether or not it accurately stated the law, where the instruction tended to favor defendant city and the police officer by making him out to be something other than a capricious intermeddler in investigating the accident.

CA(7) (7) Id.—Tort—Actions—Instructions.

--In a personal injury action against a city and a motorist, the trial court did not err in giving plaintiff's requested instruction, taken from Veh. Code, § 2800, that it is unlawful for a person to wilfully fail or refuse to comply with any lawful order, signal or direction of any traffic officer, where there was evidence that a city policeman requested plaintiff to accompany him to the area of an accident under investigation, where the policeman was a police officer (Pen. Code, § 817) and was at the time acting as a traffic officer (Veh. Code, § 625) whose main purpose was to enforce the provisions of Veh. Code, §§ 20000-20016, and where the officer was using his flashlight to signal motorists approaching an intersection at the time of the accident, and the instruction was therefore relevant to the jury's assessment of the conduct of defendant motorist had the jurors concluded that he saw, but did not heed, the flashlight signal.

Counsel: Roger Arnebergh, City Attorney, Bourke Jones and John A. Daly, Assistant City Attorneys, and Nowland C. Hong, Deputy City Attorney, for Defendant and Appellant.

Heily & Blase and Edward L. Lascher for Plaintiff and Respondent.

Edward I. Pollock, Robert E. Cartwright, Theodore A. Horn, Leo M. O'Connor and Leonard Sacks as Amici Curiae on behalf of Plaintiff and Respondent.

Judges: In Bank. Tobriner, J. Traynor, C. J., McComb, J., Peters, J., Mosk, J., Burke, J., and Sullivan, J., concurred.

Opinion by: TOBRINER
Opinion

The City of Los Angeles appeals from a judgment of the Ventura County Superior Court imposing liability on the City in the amount of $ 45,000 for damages incurred by the plaintiff in a highway accident.

We granted a hearing in this court after decision by the Court of Appeal, First Appellate District, Division Four, because of a conflict among the various Courts of Appeal as to the proper interpretation and application of Government Code section 820.2 (governmental immunity for discretionary acts of public employees) in the light of Muskopf v. Corning Hospital Dist. (1961) 55 Cal.2d 211 [11 Cal.Rptr. 89, 359 P.2d 457], and Lipman v. Brisbane Elementary School Dist. (1961) 55 Cal.2d 224 [11 Cal.Rptr. 97, 359 P.2d 465]. 1Link to the text of the note

Subsequent to our granting of a hearing in the instant case, we decided the case of Johnson v. State of California (1968) 69 Cal.2d 782 [73 Cal.Rptr. 240, 447 P.2d 352]. Johnson resolved the conflicting decisions of the Courts of Appeal and formulated a definitive rationale for the application of Government Code section 820.2.

After a thorough examination of the present case, we conclude that the Court of Appeal has correctly resolved the governmental immunity question by applying the rationale subsequently embraced by this court in Johnson. Furthermore, in our judgment, the Court of Appeal has correctly decided the other issues pertinent to the proper disposition of this case. Accordingly, the opinion of the Court of Appeal, authored by Justice Rattigan and concurred in by Presiding Justice Devine and by Justice Christian, is adopted (with minor alterations) as and for the opinion of this court. The opinion (with appropriate deletions and additions as indicated) is as follows: 2Link to the text of the note

Plaintiff sued several defendants for damages incurred in two separate highway accidents. The jury's verdict was in his favor and against the City of Los Angeles alone. []

In the first accident, plaintiff's automobile collided with a vehicle driven by Edgar D. Phillips. Shortly thereafter Michael A. Lombardo, an officer of the Los Angeles Police Department, arrived at the scene and commenced to investigate the collision. The second accident occurred when plaintiff, while on foot with Lombardo during the investigation, was struck by an automobile operated by Sam C. Wells.

The accidents occurred on October 2, 1962. Plaintiff commenced the action on May 22, 1963, alleging that negligence on the part of Phillips, Lombardo and Wells had proximately caused certain injuries and damages. The original complaint named as defendants these three, each by his true name, and "Does I through VIII, inclusive." The City was not named as a defendant, but was referred to by name in the complaint as Lombardo's employer and as the recipient of a verified claim for damages in which plaintiff asserted Lombardo's negligence. (This claim is not involved on the appeal.)

Defendants Wells, Lombardo and Phillips were served with summons, and with the original complaint, immediately; the City was not. Wells and Phillips answered the complaint. Lombardo filed general and special demurrers which, on July 11, 1963, were sustained with leave to amend within 15 days.

The complaint was not amended until December, when plaintiff obtained from the trial court an ex parte order permitting the filing of a first amended complaint naming the City as defendant "Doe I." This was on December 20, 1963. The first amended complaint was filed, and an alias summons addressed to the City was issued, on the same day. When both were served on the City, it moved to quash the service upon the ground that the trial court lacked jurisdiction of the City's person. 3Link to the text of the note

At the same time, defendant Lombardo moved for an order dismissing the action as against him, upon the ground ( Code Civ. Proc., § 581, subd. 3) that the original complaint had not been amended within 15 days after -- and as permitted in -- the order of July 11, 1963, sustaining his demurrers. Lombardo also moved to strike the first amended complaint because he had not been given notice of plaintiff's application for the order permitting the pleading to be filed.

The trial court granted Lombardo's motion to dismiss and ruled that his motion to strike was thereby rendered moot. The City's motion to quash was denied. The City did not seek appellate review of the order of denial, but filed an answer to the first amended complaint. The answer alleged as an affirmative defense that plaintiff had been contributorily negligent.

The case went to trial against the City, Wells and Phillips as defendants. During the trial, plaintiff settled with Phillips and dismissed the action as to him. The jury's verdict was in favor of Wells, but for plaintiff and against the City in the amount of $ 45,000.

Appealing from the judgment, the City first contends that the trial court erred in denying its motion to quash service of summons upon it as a "fictitious defendant." (See footnote [3], ante.) Plaintiff responds that the order may not be challenged on the appeal because the City did not seek appellate review, pursuant to Code of Civil Procedure section 416.3, 4Link to the text of the note when the order was entered.

Plaintiff's position must be sustained. As indicated by authoritative sources published both before and after the enactment of section 416.3 in 1955, the Legislature intended (1) that the section would provide [a] method of obtaining appellate review of the order here in question, and (2) that the availability of the interlocutory appellate remedy would, accordingly, preclude review of the order upon appeal from a judgment entered after trial on the merits. (Report of State Bar Committee on administration of Justice (1954) 29 State Bar J. 224, 227 [-228]; Legislative Note (1955) 43 Cal.L.Rev. 695 [-] 699; Comment (1955) 29 So.Cal.L.Rev. 94, [98-101].)

Before section 416.3 was enacted, moreover, the rule was that the unsuccessful moving party waived his jurisdictional objection entirely if he made a general appearance after his motion was denied. ( Jardine v. Superior Court (1931) 213 Cal. 301, 304 [2 P.2d 756, 79 A.L.R. 291]; Remsberg v. Hackney Manufacturing Co. (1917) 174 Cal. 799, 801 [164 P. 792]; see 1 Witkin, Cal. Procedure (1954) Jurisdiction, § 80, p. 349.) Section 416.3 was intended to forestall this consequence by permitting the moving party to defer a general appearance while pursuing the interlocutory appellate remedy ( Hartford v. Superior Court (1956) 47 Cal.2d 447, 452 [304 P.2d 1]; see 1 Witkin, supra, § 81A [1967 Supp., pp. 162-164]) [brackets in the original Court of Appeal opinion], but the section does not relieve him of the consequence if he makes the appearance. (See Hartford v. Superior Court, supra [, 47 Cal.2d 447, 452].)

In the present case the City answered plaintiff's first amended complaint and went to trial on the merits. So doing, it appeared generally, waived its jurisdictional objection, and therefore cannot assert the objection on this appeal. ( Jardine v. Superior Court, supra [, 213 Cal. 301, 304]; Remsberg v. Hackney Manufacturing Co., supra [, 174 Cal. 799, 801]; 1 Witkin, Cal. Procedure (1954) Jurisdiction, § 80, p. 349.)

The City, arguing to the contrary, first relies upon the language of section 956. [This section provides for review on appeal of certain intermediate rulings and orders. 5Link to the text of the note Regardless of whether the denial of a motion to quash service of summons is such a ruling or order, section 956 does not alter the rule that a general appearance constitutes a waiver of the jurisdictional objection.]

The City also relies upon two decisions which have indicated that an order denying a motion to quash service of summons -- as distinguished from an order granting such motion -- may be reviewed on appeal from a subsequent judgment. ( Kneeland v. Ethicon Suture Laboratories (1952) 113 Cal.App.2d 335 [248 P.2d 447]; Saroff v. Saroff (1944) 66 Cal.App.2d, 330 [152 P.2d 353].) [These decisions both refer to cases in which the objecting defendant does not enter a general appearance. We agree that a defendant may reserve his jurisdictional objection on appeal if, after the denial of his motion to quash, he makes no general appearance but suffers a default judgment. The defendant in the present case, however, proceeded to defend on the merits and cannot avoid the fact of its waiver of the jurisdictional objection.]

The City's additional contentions on appeal require a review of the evidence, which follows.

The collision between plaintiff's and Phillips' automobile occurred at about 7:45 p.m., in the intersection of Pacific Coast Highway and two side streets. Plaintiff received a forehead laceration (apparently a minor injury) in the Phillips accident. Pacific Coast Highway runs north and south at the intersection, which is within the incorporated limits of the City of Los Angeles. Officer Lombardo arrived at the scene, driving a police car, shortly after 8 p.m. He testified that he was "called to the scene"; although he did not elaborate, it may be fairly inferred that he had been dispatched there by a police radio call received in his car.

The Phillips vehicle had been removed from the intersection when Officer Lombardo arrived. Plaintiff's automobile was removed shortly thereafter. Lombardo first talked to Phillips, who told him where the point of impact between the two cars had been. He then discussed the accident with plaintiff.

When Lombardo talked to plaintiff, the two were standing at a corner of the intersection. The hour was dark, but the intersection was well lighted. Plaintiff pointed to the area where the automobiles had collided in the intersection. Because Lombardo could see no physical evidence from where they were standing, he walked into the vehicle lanes of the intersection. Plaintiff followed him.

Plaintiff testified that Lombardo had said "Come show me the skids," or "Come show me the point of impact," and that plaintiff had followed him as instructed. Lombardo denied making such statement before walking into the street, but testified that, after he had reached the center of the intersection and had observed that plaintiff was following him, he asked plaintiff to show him the skidmarks. He also testified that he did not tell plaintiff to return to the corner.

Officer Hyde, a Los Angeles police officer who investigated the second accident, testified that police officers use flares "when it is necessary to protect property in an intersection" or "when it is necessary to protect people from personal injuries when you are in an intersection." Officer Lombardo had flares in his police car, but did not use them at the scene of the Phillips accident; he testified that he usually set flares out "when there are vehicles stranded in the intersection to be protected and to protect the other motorists from striking those vehicles."

Traffic in the intersection was controlled by conventional electric signals. Officer Lombardo could not and did not interrupt the sequence of the signals. The signal for Pacific Coast Highway traffic was red when he walked into the intersection, but apparently changed to green while he and plaintiff were in it.

Officer Lombardo carried a bright flashlight, which he used to signal automobiles approaching the intersection and to look for skidmarks on the pavement within it. He and plaintiff reached a point in the approximate center of the intersection. Lombardo was aware at this point that northbound automobiles were approaching on Pacific Coast Highway from the south. One of these was driven by defendant Wells.

Lombardo and plaintiff were standing close together, both facing northerly and away from Wells, when the latter's car entered the intersection and struck plaintiff. Wells testified that he approached and entered the intersection on a green light, but saw neither plaintiff nor Lombardo and was unaware of the presence of either, until the impact. Plaintiff was severely injured in this accident.

Discretionary Immunity

The City contends that Officer Lombardo was immune from liability, for his act or omission during the investigation of the Phillips accident, under the provisions of Government Code section 820.2; 6Link to the text of the note and that, this being so, the City is immune, as his employer, under subdivision (b) of section 815.2. 7Link to the text of the note The argument rests upon the premise that Lombardo had no duty to investigate the accident, but undertook to do so in the exercise of "discretion vested in him."

Whether or not a public employee is immune from liability under section 820.2 depends in many cases upon whether the act in question was "discretionary" or "ministerial," respectively. (Muskopf v. Corning Hospital Dist. [, supra,] 55 Cal.2d 211, 220; Lipman v. Brisbane Elementary School Dist. [, supra,] 55 Cal.2d 224, 229.) For this reason, contentions such as the City makes here have frequently required judicial determination of the category into which the particular act falls: i.e., whether it was ministerial because it amounted "only to an obedience to orders, or the performance of a duty in which the officer is left no choice of his own," or discretionary because it required "personal deliberation, decision and judgment." ( Morgan v. County of Yuba (1964) 230 Cal.App.2d 938, 942-943 [41 Cal.Rptr. 508] (quoting Prosser, Torts (3d ed. [1964]) p. 1015); see Widdows v. Koch (1968) 263 Cal.App.2d 228, 239 [69 Cal.Rptr. 464]; Ne Casek v. City of Los Angeles (1965) 233 Cal.App.2d 131, 134 [43 Cal.Rptr. 294]; see, generally, Van Alstyne, California Government Tort Liability (Cont. Ed. Bar 1964) §§ 5.51-5.57, pp. 157-165.)

However, classification of the act of a public employee as "discretionary" will not produce immunity under section 820.2 if the injury to another results, not from the employee's exercise of "discretion vested in him" to undertake the act, but from his negligence in performing it after having made the discretionary decision to do so. ([Johnson v. State of California, supra, 69 Cal.2d 782, 796-797;] Sava v. Fuller [, supra,] 249 Cal.App.2d 281, 285-291.)

Accordingly, if we were to accept the City's premise that Officer Lombardo exercised his discretion in undertaking his investigation of the Phillips accident, 8Link to the text of the note section 820.2 did not clothe him with immunity from the consequences of his negligence in conducting it. He would have been immune if plaintiff's injury had been the result of his -- Lombardo's -- exercise of discretion. (See [Johnson v. State of California, supra, 69 Cal.2d 782, 794 & fn. 8;] Sava v. Fuller, supra, 249 Cal.App.2d 281, 285.) It was not: it resulted from his negligence after the discretion, if any, had been exercised. Because the essential requirement of section 820.2 -- a causal connection between the exercise of discretion and the injury -- did not exist, the statutory immunity does not apply.

Since Lombardo was not immune from liability under section 820.2, the City (1) is not immune under subdivision (b) of section 815.2 and (2) is liable under subdivision (a) thereof. (See section 815.2, quoted in footnote [7], ante.)

Jury Instructions

At plaintiff's request, the trial court gave the jury these two instructions:

"[Plaintiff's instruction No. 4] You are instructed that a police officer has the duty to investigate a traffic accident resulting in personal injury and to gather evidence relating thereto.

". . . .

"[Plaintiff's instruction No. 7] You are instructed that it is unlawful for a person to wilfully fail or refuse to comply with any lawful order, signal or direction of any traffic officer."

The City contends that giving plaintiff's instruction No. 4 was error because it misstated the law and necessarily misled the jury. Whether or not it accurately stated the law, however, we are not persuaded that the instruction was prejudicial. [] [Because] the instruction depicted Lombardo's action in investigating the accident to have been in discharge of duty, it tended to favor him -- and the City -- by making him out to be something other than a capricious intermeddler in doing so. If the instruction was erroneous as the City contends, it was not prejudicial so as to require reversal. (Cal. Const., art. VI, § 4 1/2; see id. [as amended in 1966], art. VI, § 13.) [Brackets in the original Court of Appeal opinion.]

As to plaintiff's instruction No. 7, the City correctly points out that it recites a portion of Vehicle Code section 2800. 9Link to the text of the note The City asserts that the trial court therefore erred in giving it (1) because Officer Lombardo was not a "traffic officer" as that term is defined in Vehicle Code section 625, 10Link to the text of the note and (2) because Vehicle Code section 2800 applies only to the "direction of traffic" and not to the verbal instruction (attributed to Lombardo by plaintiff) that plaintiff accompany an officer into the area of an accident under investigation.

It is undisputed that Lombardo was a "peace officer" ( Pen. Code, § 817), and that he was on duty as such when he was investigating the Phillips accident. Apart from the question whether he was acting ministerially or at his discretion, he was acting: and his "main purpose" was to enforce the provisions of division 10 (§§ 20000-20016) of the Vehicle Code, which relates to the reporting of traffic accidents and, inferentially at least, to their investigation. He was, therefore, a "traffic officer" within the meaning of Vehicle Code section 625.

We do not concur in the City's narrow interpretation of Vehicle Code section 2800. Had the section been intended to require that only nonverbal instructions should be obeyed, the words "order" and "direction" would be superfluous. We [might] conclude that either of these terms included the verbal instruction which, according to plaintiff's testimony, Lombardo gave him in the present case. [We need not reach this question, however, because] the City's argument ignores the testimony that Officer Lombardo used his flashlight to signal motorists approaching the intersection. The instruction was therefore relevant to the jury's assessment of the conduct of Wells -- one of these motorists -- if the jurors had concluded that he saw, but did not heed, the flashlight signals. The trial court, therefore, did not err in giving the instruction. 11Link to the text of the note
Contributory Negligence

The City urges that, according to the evidence, plaintiff was contributorily negligent as a matter of law in walking into the intersection with Officer Lombardo. The point is without merit. (See Anthony v. Hobbie (1945) 25 Cal.2d 814, 818 [-819] [155 P.2d 826]; Markewych v. Altshules (1967) [255 Cal.App.2d 642, 645-647 (63 Cal.Rptr. 335)].)

The judgment is affirmed.

Footnotes

    1Link to the location of the note in the document

    Compare Sava v. Fuller (1967) 249 Cal.App.2d 281 [57 Cal.Rptr. 312], with Glickman v. Glasner (1964) 230 Cal.App.2d 120 [40 Cal.Rptr. 719].

    2Link to the location of the note in the document

    Brackets together, in this manner [], without enclosing material, are used to indicate deletions from the opinion of the Court of Appeal; brackets enclosing material (other than editor's added parallel citations) are, unless otherwise indicated, used to denote insertions or additions, with or without deletions, by this court. In employing this use of brackets we adhere to a method of adoption employed by us in the past. ( Continental Baking Co. v. Katz (1968) 68 Cal.2d 512, 517 & fn. 3 [67 Cal.Rptr. 761, 439 P.2d 889]; Simmons v. Civil Service Emp. Ins. Co. (1962) 57 Cal.2d 381, 383 & fn. 1 [19 Cal.Rptr. 662, 369 P.2d 262]; People v. Lyons (1956) 47 Cal.2d 311, 314 & fn. 1 [303 P.2d 329].

    3Link to the location of the note in the document

    Although -- as will appear -- the validity of this motion is not before us on the appeal, we note that the City contended that Code of Civil Procedure section 474, under which it had been named as defendant "Doe I," was inapplicable because, as shown by the allegations of the original complaint, plaintiff was not "ignorant of the name" of the City when the action was commenced (see, generally, Lipman v. Rice (1963) 213 Cal.App.2d 474 [28 Cal.Rptr. 800]; 1 Witkin, Cal. Procedure (1954) [Pleading, § 235, pp. 1210-1213]); that, accordingly, it had not been and did not become a party to the action; and that a motion to quash service of summons upon it was therefore proper. ( Kline v. Beauchamp (1938) 29 Cal.App.2d 340, 342 [84 P.2d 194].)

    4Link to the location of the note in the document

    Section 416.3 must be read with section 416.1. In order and as pertinent, each provides as follows:

    "416.1. Any defendant . . . upon whom service of summons has been made may serve and file, on or before the last day on which he is required to plead, or within such further time as the court may for good cause allow, a notice of motion to quash the service of summons, upon the ground of lack of jurisdiction of the court over him. . . . In the event of the service and filing of such motion, the time of the moving party to plead to the complaint . . . shall be extended, and no default may be entered against him, until the expiration of 15 days following service upon him of written notice of entry of an order of the court denying the motion. Upon good cause being shown, the court may extend the latter 15-day period for an additional period not exceeding 20 days. Neither an application to the court by [any] defendant . . . for an extension of time within which to plead, nor the granting of such extension nor entering into a stipulation of the parties for such extension, shall constitute a general appearance by said defendant. . . .

    "416.3. If a motion of a defendant . . . to quash service of summons, as provided in section 416.1 . . . is denied by the court, he may, before pleading, and within 10 days of service upon him of written notice of the order of the court denying the motion, or within such additional time not exceeding 20 days as the court may allow, petition an appropriate appellate court for a writ of mandate directed to the court wherein the action . . . is pending requiring the entry of its order quashing the service of summons. If he shall thereupon serve upon the adverse party and file with the clerk of the latter court a notice that he has petitioned for such writ of mandate, his time to plead shall be extended, and no default may be entered against him, for a period of 10 days following written notice of the final judgment in the mandamus proceeding, which time for good cause may be extended by the court for an additional period of not to exceed 20 days."

    Until hereinafter indicated, all statutory references are to the Code of Civil Procedure.

    5Link to the location of the note in the document

    As pertinent here, the section provides as follows: "956. Upon an appeal from a judgment the court may review the verdict or decision, and any intermediate ruling, proceeding, order or decision which . . . necessarily affects the judgment, or which substantially affects the rights of a party. . . . The provisions of this section do not authorize the court to review any decision or order from which an appeal might have been taken."

    6Link to the location of the note in the document

    Except where otherwise indicated, all statutory references hereinafter are to the Government Code. Section 820.2 states that "Except 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."

    7Link to the location of the note in the document

    Section 815.2 provides in full as follows: "815.2. (a) A public entity is liable for injury proximately caused by an act or omission of an employee of the public entity within the scope of his employment if the act or omission would, apart from this section, have given rise to a cause of action against that employee or his personal representative. (b) Except as otherwise provided by statute, a public entity is not liable for an injury resulting from an act or omission of an employee of the public entity where the employee is immune from liability."

    8Link to the location of the note in the document

    Officer Hyde, who investigated the Wells accident, testified that he -- Hyde -- was "assigned to traffic investigation" as a Los Angeles police officer. Officer Lombardo testified that he -- Lombardo -- had investigated "a few hundred" such accidents, and had received formal police training in that field. Still, there was no evidence to the effect that Lombardo was under a duty to investigate the Phillips accident upon having been dispatched to the scene. Apparently, moreover, no State law explicitly imposed such duty upon him and, if a Los Angeles ordinance or police regulation did so, such has not been called to our attention. On the other hand, the City essentially contends that a city police officer dispatched to the scene of a traffic accident within the city's limits is under no duty to investigate it when he arrives, and that he acts within his discretion if he does. This argument derives from an omission of proof in the present case, and it comports neither with reality nor with State laws which impose some accident-reporting duties upon citizens and city police departments, and which suggest others. (See, e.g., Veh. Code, §§ 625, 2407, 20001, [20002,] 20003, 20004, [] 20008, subd. (a).) Therefore, if we were to "accept" this premise as stated in the text, we would do so for purposes of argument and on the state of the record before us: we do not suggest that a city police officer is under no duty to investigate a traffic accident, nor that he is vested -- or not -- with discretion in the matter.

    9Link to the location of the note in the document

    "2800. It is unlawful to wilfully fail or refuse to comply with any lawful order, signal, or direction of any traffic officer or to refuse to submit to any lawful inspection under this code."

    10Link to the location of the note in the document

    As pertinent, Vehicle Code section 625 provides that "A 'traffic officer' is any . . . peace officer [who] is on duty for the exclusive or main purpose of enforcing the provisions of Division 10 or 11 of this code."

    11Link to the location of the note in the document

    The City argues, for the first time before the Supreme Court, that if we accept the conclusion that Officer Lombardo was a "traffic officer" within the meaning of Vehicle Code section 625, we are bound to hold that since, at Lombardo's request, plaintiff pointed out the skidmarks on the highway, plaintiff was a "person engaged in assisting any peace officer in active law enforcement service at the request of such peace officer." ( Lab. Code, § 3366.)

    Such assistance, argues the City, renders the plaintiff an employee of the City ( Lab. Code, § 3366), and his exclusive remedy for the injuries suffered in the second accident falls under the workmen's compensation provisions of the Labor Code. ( Lab. Code, § 3601, subd. (a).)

    We do not believe that plaintiff's activity in the present case constituted "assisting any peace officer in active law enforcement service" within the scope of Labor Code section 3366. The legislative purpose of this section was to cover a person who assumes the functions and risks of a peace officer, and not one who merely informs a peace officer of facts within his own knowledge. (See, 4 Cal. Law Revision Com. Rep. (1963) pp. 1505-1507.)]

~~~~~~~~~~~~~~

Wallace v. City of Los Angeles

Court of Appeal of California, Second Appellate District, Division Three

January 28, 1993, Decided

No. B045271

12 Cal. App. 4th 1385

LULA WALLACE, Plaintiff and Appellant, v. CITY OF LOS ANGELES et al., Defendants and Respondents.

Subsequent History:

As Modified February 4, 1993. Review Denied May 27, 1993, Reported at: 1993 Cal. LEXIS 2944.

Panelli, J., and George, J. are of the opinion the petition should be granted.

Prior History:

Superior Court of Los Angeles County, No. C528736, Leon Savitch, Judge.

CALIFORNIA OFFICIAL REPORTS HEADNOTES
Classified to California Digest of Official Reports

CA(1) (1) Dismissal and Nonsuit § 51—Nonsuit—Appeal.

--In an appeal from a judgment of nonsuit, the appellate court affirms the judgment if the trial court's stated grounds for granting nonsuit are correct. However, the appellate court must view the evidence in the light most favorable to the plaintiff. Nonsuits, like directed verdicts, may be granted only when the court has given the plaintiff's evidence all the value to which it is legally entitled, including giving it the legitimate inferences which flow from that evidence.

CA(2) (2) Negligence § 9—Elements of Actionable Negligence—Duty of Care—As Question of Law.

--The question of whether the facts of a case give rise to the existence of a duty of care is entirely a question of law to be determined by reference to the body of statutes, rules, principles, and precedents which make up the law. It must be determined only by the court. If the facts of the case do not show that the defendant had a duty to the plaintiff, the case should not be submitted to the jury.

CA(3) (3) Negligence § 9.4—Elements of Actionable Negligence—Duty of Care—Special Relationship—Duty Concerning Conduct of Third Person.

--As a general rule, one owes no duty to control the conduct of another, nor to warn those endangered by such conduct. However, a duty may arise if a special relationship exists between the actor and the third person which imposes a duty upon the actor to control the third person's conduct, or if a special relation exists between the actor and the other which gives the other a right to protection.

CA(4) (4) Government Tort Liability § 11.2—Grounds for Relief—Liability Arising From Governmental Activity—Law Enforcement—Failure to Protect Victim.

--Law enforcement officers and other governmental agents have no duty to the public as a whole to warn that a particular person is a threat to the public's well-being. However, when the government's actions create a foreseeable peril to a specific foreseeable victim, a duty to warn arises when the danger is not readily discoverable by the endangered person.
[See 5 Witkin, Summary of Cal. Law (9th ed. 1988) Torts, § 258.]

CA(5) (5) Government Tort Liability § 11.2—Grounds for Relief—Liability Arising From Governmental Activity—Law Enforcement—Failure to Protect Victim—Duty to Warn Homicide Witness of Danger to Her.

--In a wrongful death action against a city and a police officer, brought by the mother of a homicide witness who had been killed before she could testify, the trial court erred in granting defendants nonsuit, finding that defendants had no duty to warn the witness of the dangers to her after she had agreed to be a prosecution witness. There was substantial evidence that defendants had a duty to warn the witness both by their creation of a peril and by the special relation established by their having enlisted the witness to assist them. Originally the witness was one of many whom the police had questioned about the homicide, but her position changed radically when the officer asked her to sign a statement implicating a certain suspect and when the officer determined that she was a major prosecution witness. This peril was not of her own making, as the officer had placed her in a zone of danger of which the officer was well aware. Moreover, the officer had given the witness the impression that there was no immediate danger when she asked him about a threatening phone call to her home.

CA(6) (6) Government Tort Liability § 11.2—Grounds for Relief—Liability Arising From Governmental Activity—Law Enforcement—Failure to Protect Victim—Duty to Warn Homicide Witness of Danger to Her—Statutory Immunities.

--Statutory immunities did not operate to relieve a city and a police officer of liability owed the mother of a homicide witness who was killed before she could testify. The city and officer had a duty to warn the witness of the dangers to herself both by their creation of a peril and by the special relation established by their having enlisted the witness to assist them. The immunity embodied in Gov. Code, § 845 (failure to provide police protection), is meant to protect the budgetary and political decisions which are involved in hiring and deploying a police force; it is not intended to provide immunity against a particular police officer's negligence in the performance of his or her duty in a particular situation. Also, the immunity of Gov. Code, § 820.2 (public employee's exercise of discretion), only applies to discretionary, as opposed to purely ministerial, duties. The officer was not engaged in discretionary acts when he minimized the importance of threatening call made to the witness and when he decided not to warn or protect the witness.

Counsel: Raymond P. Boucher for Plaintiff and Appellant.

James K. Hahn, City Attorney, Thomas C. Hokinson and Richard M. Helgeson, Assistant City Attorneys, for Defendants and Respondents.

Judges: Opinion by Croskey, J., with Klein, P. J., and Hinz, J., concurring.

Opinion by: CROSKEY, J.

Opinion

Plaintiff Lula Wallace (plaintiff) appeals from a judgment of nonsuit entered in her action against defendants the City of Los Angeles (the City) and Detective Donald Richards (Detective Richards). Detective Richards is a member of the City's police department. The sole cause of action alleged against defendants was for the negligent wrongful death of plaintiff's 18-year-old daughter, Demetria Wallace (Demetria). Demetria was shot and killed days before she was to give testimony as a witness for the prosecution at a preliminary hearing in a murder case. In granting the defendants' motion for nonsuit, the trial court ruled that defendants had no duty to protect Demetria in any manner after Demetria agreed to be a prosecution witness.

This is a conclusion which we firmly reject. Based on the evidence produced at trial, we find that defendants did owe Demetria a duty of care in their relationship with her. We further find that defendants have no governmental immunity from liability to plaintiff. Therefore the judgment of nonsuit must be reversed.

PROCEDURAL BACKGROUND

Plaintiff filed this action on January 2, 1985. Jury trial commenced July 3, 1989. After the completion of the evidence and both parties had rested, defendants moved for a judgment of nonsuit. That motion was granted and the case was taken away from the jury. An order of dismissal was filed July 10, 1989. After plaintiff's motion for a new trial was denied, she then filed this timely appeal.

FACTUAL BACKGROUND

The story behind this action commenced when Demetria (a high school honors graduate and a student at Los Angeles City College studying to become a California Highway Patrol Officer) and her boyfriend decided to be good citizens and report a crime to the police after they discovered the lifeless body of cab driver Kimbrough Foley (Foley). Demetria's subsequent "good citizen" decisions cost her life. As the trial court disposed of plaintiff's case by granting a nonsuit, we review in some detail the evidence that the court found insufficient to support a prima facie claim.

1. DETECTIVE RICHARDS'S TESTIMONY

Defendant Detective Richards testified as plaintiff's witness under Evidence Code section 776. He stated he had been with the Los Angeles Police Department since December 1970 and, on May 26, 1983, he was working as a detective. At approximately 10:30 p.m. on that day, he was called to investigate a homicide that occurred in an alley near the intersection of Vermont and Vernon in the City of Los Angeles.

Upon arriving at the crime scene, he spoke with Demetria and her boyfriend, Dennis McQuarie. According to detective Richards, Demetria and McQuarie were in the dental repair office where McQuarie worked when they heard two gunshots in the alley around 9:30 p.m. About five or ten minutes later they decided to leave the office; they exited out the rear door. That door leads into the above mentioned alley. They saw a car in the office's parking lot which should not have been there. McQuarie looked into the car but could not see anything. He obtained a flashlight and shining it into the car, he saw Foley's body. At that point McQuarie telephoned the police and Demetria waited at the rear door.

Detective Richards interviewed a third person who had heard the gun- shots, Anthony Flowers. Mr. Flowers's backyard abuts the alley, and he was in that yard when the shots were fired. He saw a Black male, approximately six feet tall, running in the alley. When shown a photo display folder, Flowers tentatively identified an Anthony Harris as the person he had seen running in the alley. Harris was investigated for a connection to the Foley murder.

Carl Slaughter worked with victim Foley. Slaughter told Detective Richards that on the night Foley was murdered, Foley took a call to go to 950 West 48th Street. A paper in Foley's cab confirmed that that address was Foley's last taxi call. Detective Richards testified that Slaughter described the house on West 48th Street as a "dope pad." This house was directly across the street from where plaintiff and Demetria lived. Working with the narcotics division of the police department, Detective Richards got a list of people who had been arrested at the "rock house." A person by the name of Grant Christon was on that list. Christon fit the description given by Mr. Flowers of the person he saw running down the alley on the night Foley was killed. So did two other males on the list. The three men became possible suspects in the Foley murder case. Later, one of the residents of the rock house told Detective Richards that Grant Christon was present at the house on May 26, 1983, the day Foley was murdered. Christon did not actually live at that house.

On July 13, 1983, Detective Hudson took an anonymous phone call from a male. The caller stated that Grant Christon was the person who murdered Foley and that Christon had been involved in past violent crimes. The caller stated he would not come forward unless prosecution of Christon was assured. Detective Hudson gave this information to Detective Richards. Two days later, Detective Richards spoke with Detective Crostley who told him that he (Crostley) considered Christon a possible suspect in another murder case. Additionally, Crostley told Detective Richards that another detective had gotten an arrest warrant for Christon for yet another murder; the victim in that murder was named Lamont Norwood.

Grant Christon was stopped in his vehicle on August 5, 1983, for violating the Vehicle Code. During the stop the officers discovered he was carrying a .38 Smith and Wesson handgun. Detective Richards was told about the arrest. Knowing that Foley had been killed with a .38-caliber handgun, Detective Richards obtained the gun taken from Grant Christon and the three bullets recovered from the Foley murder to see if they had been fired from that gun. The ballistics comparisons showed that those three bullets were fired from the gun taken from Christon. However, the gun was a stolen gun and the true owner of the gun was sure it had still been in his possession at the time Foley was murdered. Thus, at that point in time, the district attorney's office was not willing to file charges against Grant Christon for the murder of Foley. The deputy district attorney handling the matter felt there was insufficient evidence against Christon and the case needed further investigation.

On August 29, 1983, Detective Richards went to plaintiff's home to question Demetria. He talked to her about an hour. Two police officers were with him. According to Detective Richards none of Demetria's family was home at that time. He testified that Demetria told him that on the night of Mr. Foley's murder, when her boyfriend was calling the police and she was waiting at the back door, she saw Grant Christon walking in the alley. He stopped and looked at Foley's car for about five seconds. A chain link fence separated Christon from the car. Then Christon left the scene. Demetria recognized Christon because she had gone to school with him.

Based on the information she gave him, Detective Richards wrote out a statement for Demetria and she signed it. After she signed the statement, Detective Richards told Demetria that she would probably be a witness in a case against Grant Christon. He also told her about a witness protection program and how if a witness is threatened, the witness will be relocated. Detective Richards testified that at that point in time, he did not consider Grant Christon to be a danger to the community but if he had so considered Christon, he would have informed Demetria because of her position as potential witness in a future case against Christon. Detective Richards stated he did not tell Demetria that Grant Christon was a suspect in two other murders. Nor did he tell her that Christon had been threatening witnesses in other murder investigations; but he stated he would have told her about Christon's threats to any other witnesses if he had known about such threats because he would have felt obligated to help protect her from any potential harm. Evidence produced by plaintiff later in the trial called into question the veracity of Detective Richards's assertion that he did not know Grant Christon had been threatening witnesses and did not believe Christon was a danger to the community.

On August 31, 1983, two days after Detective Richards spoke with Demetria at her home, Grant Christon was arrested for the murder of Foley. The district attorney filed charges the next day. (At some point in time, Christon was also arrested for the murder of Lamont Norwood.)

On September 15, 1983, Detective Richards was informed that an anonymous caller had telephoned plaintiff's home that day to say that if Demetria testified regarding Grant Christon, plaintiff's home would be blown up. Detective Richards testified that he called plaintiff and advised her to contact him if the threats continued and he "would take action to relocate [Demetria]." 1Link to the text of the note Detective Richards testified he did not recall plaintiff being upset about the threat when he talked to her. After he spoke with plaintiff about the threat, he called Grant Christon's attorney to tell him about it so that the attorney could get Christon to stop the threats. Detective Richards believed that the threat was coming from Christon or from Christon's family or friends. Christon was in jail on the day the threat was made to plaintiff.

When speaking with plaintiff about the threatening call, Detective Richards did not tell plaintiff that Grant Christon was a suspect in two other murders. Nor did he tell her that Christon had been threatening witnesses in the cases against him. When asked why he did not relay this information to plaintiff, Detective Richards testified that at the time he was speaking to plaintiff (Sept. 15, 1983), he did not know that Christon had threatened any other witnesses. However, at that point in his testimony, Detective Richards was confronted with a form he had filled out for the district attorney on September 1, 1983, just three days after he had questioned Demetria at her home. In that form (an arraignment information sheet on Grant Christon for the Foley murder charges), Detective Richards had stated: "Detectives have received information that since the defendant has bailed out of jail [on the Norwood murder charges] he is allegedly approaching unknown citizens and stating he is going to get the people who are witnesses against him." Detective Richards testified he got this information regarding Christon's other threats from the police file on the Lamont Norwood murder case. He also testified that he knew the name of one of the persons threatened.

Additionally, on this arraignment information sheet Detective Richards had stated that Grant Christon was carrying a .45-caliber handgun since his arrest and that Christon was a "definite danger" to the community and especially to any witnesses who might testify against him in court. Detective Richards acknowledged that he did not provide plaintiff with any of this information when he talked to her on September 15 regarding the anonymous phone threat received at her home. When asked about his prior use of the witness protection program, Detective Richards testified he had used it on a number of occasions, including when a witness was threatened.

According to Detective Richards, the preliminary hearing in the Foley murder case against Christon was originally scheduled for September 16, 1983. Demetria had been subpoenaed to appear at that hearing, as had Demetria's boyfriend, persons from the taxi company that Foley worked for and experts regarding the firearm tests. Detective Richards called Demetria to tell her that the hearing was continued to November 7, 1983, and she was again served with a subpoena to appear. Demetria never got to testify; she was murdered on November 2, 1983, as she stood waiting for a bus. 2Link to the text of the note

2. PLAINTIFF'S TESTIMONY

Plaintiff testified that on the morning of September 15, 1983, she received a phone call at her home from a male caller who asked for Demetria. Plaintiff told the caller Demetria was at school and the caller said: "Listen, your daughter has no business opening up her G. D. mouth and if she shows up down here today I'm going to blow her god damn head off and . . . I know where she goes, when she goes, and I also know where you go." Plaintiff stated the caller also threatened to blow up plaintiff's house. Plaintiff's daughter, Yolanda, was home at that time and the two agreed the police should be called. Plaintiff made the call. She could not remember to whom she spoke.

Later that day, Demetria told plaintiff about what she had seen in the alley and about talking to the police. Demetria gave plaintiff Detective Richards's phone number, and plaintiff called him and told him about the threatening call she received.

Plaintiff testified that Detective Richards repeatedly told her to calm down and told her that Demetria really didn't need to testify because he had 12 other eyewitnesses. Plaintiff told Detective Richards that Demetria would not come to testify and Detective Richards told plaintiff that if he felt Demetria was in any kind of danger he would tell plaintiff. Detective Richards told plaintiff Demetria did not have to change her daily routine nor did anyone else at the house and he would stake his life on it. Detective Richards told her there was no need for protection because Grant Christon was behind bars where he would stay and he was "going to fry." 3Link to the text of the note Plaintiff testified the call she made to Detective Richards lasted about 30 minutes; Detective Richards had earlier testified that it lasted less than 5 minutes.

Plaintiff testified that Detective Richards told her if he felt Demetria was in any danger he would have her removed from plaintiff's home and hidden from everyone except plaintiff. Based on all of Detective Richards's representations to her, plaintiff and Demetria refrained from taking precautions that they would have otherwise taken, such as having Demetria go live with her father or aunts. Plaintiff stated that before Demetria was killed, Detective Richards came to her home with a subpoena for Demetria and she (plaintiff) did not want to accept it. Detective Richards again told her that he had other witnesses and did not need Demetria and that Grant Christon was behind bars and plaintiff and her family should consider themselves safe. (Detective Richards had already testified at trial that Demetria's subpoena was mailed to her and he did not bring it to her. However, he had also testified at his deposition that he took the subpoena for the November 1983 hearing to Demetria's home.) Plaintiff acknowledged that Detective Richards did not tell her he would advise her of anything in the future and further acknowledged that Demetria had never told her she did not want to testify. Plaintiff stated she felt more secure after talking to Detective Richards and knowing that Demetria did not have to testify. She stated Demetria did take precautions for awhile, staying inside the house more often.

A month or two after Demetria was killed, the police offered protection to plaintiff and her daughters in the form of relocation. Later the police told plaintiff they did not have the personnel to find a place for plaintiff and her children to stay and only had enough money to pay for six months of relocation. Plaintiff did not accept the "offer" because she did not have the finances to do so and because she did not perceive that she and her children were in danger any longer. 4Link to the text of the note

3. THE SISTERS' TESTIMONY

Yolanda Wallace, Demetria's sister, testified she was home and in the kitchen the day Detective Richards came with other officers to her home to question Demetria about the Foley murder. The door separating the kitchen from the portion of the house where Demetria and the officers were talking was closed but for a crack; however, through the crack Yolanda could see Demetria sitting in a chair and she could hear her and hear the officers. Yolanda testified the officers told Demetria that they knew it was Grant Christon who was in the alley the night of the Foley murder and who killed Foley, and they asked Demetria what she saw and whether she saw Grant Christon. Yolanda testified that Demetria told the officers she could not say for sure it was Grant that she saw because all she really saw was a shadow. The officers told Demetria they had 12 other witnesses who said it was Grant Christon. Yolanda stated the officers kept trying to get Demetria to say it was Grant Christon that she saw but Demetria kept telling them she could not say that it was. According to Yolanda, Detective Richards and the officers came to the house about three o'clock in the afternoon and were still there when Yolanda had to leave for work one hour later. She asked one of the officers to move their car because it was blocking hers.

Yolanda and her sister Andrea both testified regarding what plaintiff told them after she finished her phone call with Detective Richards on the night of the day the threatening phone call came to her home. Both daughters testified plaintiff told them Detective Richards told her that neither she nor Demetria had anything to worry about, no harm would come to them, and he would stake his life on it. Andrea and Yolanda stated their mother told them Detective Richards assured her Demetria did not have to alter her daily routine. According to Andrea, Demetria indicated she would follow these assurances and not do anything in particular to ensure her safety. Yolanda testified that once she and Demetria and another sister were talking and they agreed that the person making the threat would have to kill all of the witnesses, not just Demetria.
4. THE DEPUTY DISTRICT ATTORNEY'S TESTIMONY

Lynn Reed, a deputy district attorney, testified she worked on two murder cases against Grant Christon. She described Demetria as being the main witness in the Foley murder case because Demetria's testimony linked Grant Christon to that murder. Demetria's testimony was described by Reed as "essential" and "critical." Reed stated that at one point Demetria had called the district attorney's office because she was concerned about coming to court. One of Reed's investigators told her he would take care of Demetria's call. The investigator was either Detective Richards or another detective. According to Reed, Grant Christon's family had threatened people in other cases. Reed had prosecuted one of the Christon brothers for rape. When asked about the fact that Demetria was to be a witness for the prosecution, Reed stated that "it's relatively rare in these kinds of cases to get people to step forward to testify when they have no personal interests in it themselves other than just being a good citizen."

DISCUSSION

1. STANDARD OF REVIEW

In an appeal from a judgment of nonsuit, we affirm the judgment if the trial court's stated grounds for granting nonsuit are correct. (7 Witkin, Cal. Procedure (3d ed. 1985) Trial, § 418, pp. 419-420; 9 Witkin, Cal. Procedure (3d ed. 1985) Appeal, § 262, p. 269.) However, we must view the evidence in the light most favorable to the plaintiff. Nonsuits, like directed verdicts, may be granted only when the court has given plaintiff's evidence all the value to which it is legally entitled, including giving it the legitimate inferences which flow from that evidence. (O'Keefe v. South End Rowing Club (1966) 64 Cal.2d 729, 733 [51 Cal.Rptr. 534, 414 P.2d 830, 16 A.L.R.3d 1]; Mann v. State of California (1977) 70 Cal.App.3d 773, 776 fn. 1 [139 Cal.Rptr. 82]; 7 Witkin, supra, § 409, p. 412.)

2. BASIS OF THE TRIAL COURT'S DECISION

The trial court granted defendants' motion for nonsuit because it found that defendants owed no duty of care to Demetria. The question of whether the facts of a case give rise to the existence of a duty of care " 'is entirely a question of law, to be determined by reference to the body of statutes, rules, principles and precedents which make up the law; and it must be determined only by the court.' (Prosser, Torts (4th ed. 1971) § 37, p. 206.)" (Stout v. City of Porterville (1983) 148 Cal.App.3d 937, 941 [196 Cal.Rptr. 301].) If the facts of the case do not show that the defendant had a duty to the plaintiff, the case should not be submitted to the jury. (O'Keefe v. South End Rowing Club, supra, 64 Cal.2d at p. 746.)

Here, in finding that the defendants had no duty to Demetria, the trial court stated there was no evidence to show that Detective Richards created a peril and no evidence showing that a special relationship was created between Detective Richards and Demetria. We conclude that the trial court was wrong on both counts. 5Link to the text of the note

3. THE DUTY OF CARE

A. DUTY TO WARN BASED ON CREATION OF A PERIL

(1) BACKGROUND OF THE LAW

"As a general rule, one owes no duty to control the conduct of another, nor to warn those endangered by such conduct. Such a duty may arise, however, if '(a) a special relationship exists between the actor and the third person which imposes a duty upon the actor to control the third person's conduct, or (b) a special relation exists between the actor and the other which gives the other the other a right to protection.' (Rest.2d. Torts (1965) § 315; [citations].)" (Davidson v. City of Westminster (1982) 32 Cal.3d 197, 203 [185 Cal.Rptr. 252, 649 P.2d 894].)

In applying these "duty to warn" rules to law enforcement officers and other governmental agents, reviewing courts have made it clear that such agents have no duty to the public as a whole to warn that a particular person is a threat to the public's well-being. However, when the government's actions create a foreseeable peril to a specific foreseeable victim, a duty to warn arises when the danger is not readily discoverable by the endangered person. Thus, a duty to warn was found in Johnson v. State of California (1968) 69 Cal.2d 782 [73 Cal.Rptr. 240, 447 P.2d 352], where the California Youth Authority placed a minor in the foster care of the plaintiff and her husband. The minor had homicidal tendencies and a background of cruelty and violence to persons and animals, but the Johnsons were not warned about him. The minor attacked the plaintiff soon after moving into her home.

In contrast, no duty to warn was found in Thompson v. County of Alameda (1980) 27 Cal.3d 741 [167 Cal.Rptr. 70, 614 P 2d 728, 12 A.L.R.4th 701], where a child was killed by a juvenile offender who was prone to violence against young children and who, prior to his release to his mother's care from a county institution, had threatened to kill a young child residing in his mother's neighborhood. The juvenile offender gave no indication of which child he intended as his victim. The defendant county did not warn the local police nor persons in the mother's neighborhood of these facts. In comparing the case before it with the Johnson case, the Thompson court stated: "In Johnson we emphasized the relationship between the state and plaintiff-victim, and the fact that the state by its conduct placed the specific plaintiff in a position of clearly foreseeable danger. In contrast with the situation in Johnson, in which the risk of danger focused precisely on plaintiff, here County bore no special and continuous relationship with the specific plaintiffs nor did County knowingly place the specific plaintiffs' decedent into a foreseeably dangerous position. Thus the reasoning of our holding in Johnson would not sustain the complaint in this action." (Id. at p. 751.)

Likewise, the court in Davidson v. City of Westminster, supra, 32 Cal.3d 197, found that the defendants in that case had no duty to warn. In Davidson, the plaintiff had been stabbed in a laundromat which the police had under surveillance at the time of the stabbing. Three stabbings had taken place at the same or nearby laundromats and the police had been watching their suspect in the laundromat on the night that plaintiff was stabbed by him. The police knew that the plaintiff was inside the laundromat but did not warn her about their suspect. The Davidson court contrasted the case before it with the facts in Johnson, emphasizing that in the Johnson case, "the state put the parolee in the victim's home and failed to warn of homicidal tendencies; thus the state placed the victim in danger. Here the police were in no way responsible for the presence of either the assailant or the victim in the laundromat." (Id. at p. 207.)

(2) APPLICATION OF THE LAW TO THIS CASE

Applying Johnson, Thompson and Davidson to the facts of this case, we conclude that defendants had a duty to warn Demetria about the danger presented by Grant Christon. We draw this conclusion because we find that defendants created a foreseeable peril for Demetria, a peril that was not readily discoverable by her.

To begin with, prior to the time that Demetria signed the witness statement prepared for her by Detective Richards, she was simply one of many people who had been interviewed by the police on the night of the Foley murder and as such, was not someone whom Grant Christon would perceive as a threat to his freedom. But when Detective Richards had Demetria sign the witness statement implicating Grant Christon in the murder of Foley and when Detective Richards determined that Demetria would be offered as a prosecution witness to the district attorney to obtain murder charges against Christon, Demetria's position changed radically. Thereafter, she was in a position of peril. It was a peril not of her own making, for unlike the laundromat assault victim in Davidson who had come to her peril of her own accord and without any instigation by the police Demetria was pursued by Detective Richards, a person seeking to make a murder case against Grant Christon. 6Link to the text of the note Just three days after Demetria signed her statement for Detective Richards, the district attorney filed murder charges against Grant Christon for the murder of Foley; the district attorney had refused to file against Christon prior to receiving Demetria's written statement. Through Detective Richards's police work, Demetria was brought into the zone of danger associated with Grant Christon.

Detective Richards's own testimony showed that there was indeed a zone of danger associated with Christon. At trial, Detective Richards acknowledged that just three days after Demetria signed the witness statement implicating Grant Christon in the murder of Foley, he (Detective Richards) had informed the district attorney's office that (1) police detectives had received information that Christon was threatening to "get" the people who testify against him, (2) Christon was carrying a handgun, and (3) he (Detective Richards), an experienced police detective, personally considered Christon to be a "definite danger" to the community a large and especially to any witnesses who might testify against him in court. Additionally, Detective Richards knew that Christon was associated with the dope house across the street from where Demetria lived and also knew that Christon was a defendant in a second murder case and a suspect in a third. Given all of these facts, a reasonable person could conclude that Demetria was in foreseeable danger because of her position as a witness for the prosecution.

Viewing the other evidence brought out at trial, a reasonable person could also conclude that the danger Demetria was in was not readily discoverable by her. While it is true that Demetria knew that Christon was charged with a violent murder, Demetria could reasonably infer from Detective Richards's conduct on the day he interviewed her that she, at that point in time, did not need to concern herself about Grant Christon being a threat to her. Detective Richards himself testified that he merely described the witness protection program to Demetria; he did not offer to put her in the program at that time. Because he did not offer her protection, Demetria could infer that she did not then need protection. Detective Richards was a person with expertise in such matters; in contrast, there is no evidence that Demetria had experience as a witness in a criminal case or had her own independent knowledge about the witness protection program.

When the threatening phone call came to her home, Detective Richards's actions again gave the impression that Demetria was not in danger. He testified he spent less than five minutes on the telephone with plaintiff when he talked to her about that threat. He stated he simply told her to call him if she got any more threats and then he would take action to relocate Demetria. Arguably, he gave Demetria and her mother the impression that, at that point in time, Demetria still was not in danger.

When plaintiff's testimony is added to the analysis, there is considerable evidence that Detective Richards gave Demetria and her mother the impression there was no immediate danger. According to plaintiff, Detective Richards told her (1) that if he felt Demetria was in danger, he would tell her and he would remove her from plaintiff's home, (2) that none of the people living in her house needed to change their daily routines, and (3) that there was no need for protection. According to plaintiff, Detective Richards repeated his assurances of safety when he delivered the subpoena for Demetria.

Thus the evidence, viewed in the light most favorable to plaintiff, shows that not only did defendants place Demetria in danger by involving her in the case against Grant Christon, but Detective Richards skewed her appreciation of that danger by what he did and did not tell her and her mother; and this appears to be so even if one only considers what Detective Richards admits to telling Demetria and her mother. Therefore, there was substantial evidence to show that defendants had a duty to warn Demetria about the peril she was in.

B. DUTY OF CARE BASED ON DEFENDANTS' REQUEST FOR DEMETRIA'S ASSISTANCE

In Carpenter v. City of Los Angeles (1991) 230 Cal.App.3d 923 [281 Cal.Rptr. 500], a case with facts closely related to those presented here, the court found a duty to warn a witness for the prosecution that his life had been threatened. In that case, the witness, George Carpenter, was robbed at gun point by a Daniel Jenkins. Jenkins fired twice but did not physically injure Carpenter. Carpenter gave Detective Williams, of the North Hollywood division of the Los Angeles Police Department, a description of Jenkins and picked Jenkins out of a photo lineup. Carpenter testified at Jenkins's preliminary hearing, identifying Jenkins as the robber. After the hearing, Jenkins spoke to Carpenter, saying "Why did you lie? I didn't do anything to you. God punishes people who lie." Carpenter responded: "God also punishes people who shoot at others and rob them."

Because of his courthouse encounter with Jenkins, Carpenter was concerned about his safety and asked Detective Williams about Jenkins's criminal history and whether Carpenter had cause to be concerned about his welfare. Williams replied that Carpenter had nothing to worry about because Jenkins was just "a street punk" who was "basically into" grand theft auto and small robberies. Carpenter, relying on this assurance from Williams, took no steps to protect himself and he did not request protection from the police or the district attorney's office.

Sometime before trial, a sergeant at the Wilshire division of the police department got word from a reliable informant that Jenkins had tried to hire him to kill Carpenter. Jenkins told the informant that he was aware of Carpenter's personal daily routine, having tailed Carpenter. The sergeant relayed this information to Detective Slack at the Wilshire Station who in turn relayed it to Detective Riscen at the North Hollywood police station.

Two months later, Carpenter was shot by an unknown assailant before he could testify at trial. Detective Williams had never offered to provide Carpenter with any type of protection. After the shooting, Carpenter was placed in a witness protection program and sent out of state. Carpenter was not informed of Jenkins's attempt to hire the reliable informant to kill him until Carpenter returned eight months later to testify in the preliminary hearing of a murder case against Jenkins. The victim of that murder was Detective Williams, and Jenkins was convicted of killing him. The Carpenter court found that the City owed a duty of care to Carpenter. (Carpenter v. City of Los Angeles, supra, 230 Cal.App.3d at p. 933.) In arriving at that conclusion, the court found Walker v. County of Los Angeles (1987) 192 Cal.App.3d 1393 [238 Cal.Rptr. 146] persuasive.

In Walker, the plaintiff was injured while trying to capture a roaming dog. A county animal control officer had requested that plaintiff capture the stray dog after the officer had been unable to do so herself. Plaintiff was seriously injured during his attempt to secure the dog. In describing the issue before it, the Walker court stated: "The central question in this case is whether a 'special relationship' is created when a public employee asks a private citizen to assist the employee in performance of a public function which involves a foreseeable risk of injury." (Walker v. County of Los Angeles, supra, 192 Cal.App.3d at p. 1399.) The court answered the question in the affirmative, finding a special relationship which gives rise to a duty of care toward the private citizen whose help is enlisted. (Id. at pp. 1402, 1403, fn. 8.)

There can be little doubt that Carpenter and Walker support plaintiff's assertion that there existed between Demetria and defendants a special relationship such that defendants owed Demetria a duty of care. The evidence showed that defendants enlisted Demetria to be a prosecution witness in the case against Grant Christon, and the evidence also showed that Demetria's role as prosecution witness carried with it a foreseeable risk of harm to her. Thus, the Walker/Carpenter test is met here. 7Link to the text of the note

Nevertheless, defendants argue that Carpenter is of no assistance to plaintiff because in that case, the victim-witness was not informed by the police that Jenkins had attempted to hire a hit man to kill him, whereas here, Demetria was aware of the threatening phone call made to her home. We, however, see little difference in impact between the facts of Carpenter, where the police did not inform Mr. Carpenter that Jenkins wanted to have him killed, and the facts of the case before us, where Detective Richards diluted the importance of the threatening phone call by what he said to plaintiff about it. In both cases, the prosecution witness was lulled into a false sense of security. In Carpenter, the police lulled the witness into a false sense of security when, after telling him he did not need to worry about Jenkins, they then failed to tell him they had new information about the danger Jenkins posed. Here, Demetria was lulled into a false sense of security when Detective Richards (1) minimized the importance of the phone call which plaintiff received, (2) failed to tell Demetria about Grant Christon's other threats, and (3) failed to tell Demetria he considered Christon a threat to the community at large and especially to persons like herself who were tapped to be witnesses against Christon.

C. CONCLUSION AS TO EXISTENCE OF DUTY OF CARE

Although the trial court granted defendants' motion for nonsuit because it found they owed no duty of care to Demetria, from the evidence produced at trial it is clear that there are at least two bases for finding that such a duty existed. First, the evidence supports a finding of a duty to warn based on creation of a peril (Johnson v. State of California, supra, 69 Cal.2d 782). Second, the evidence supports a finding of a duty of care based on defendants' request for assistance from Demetria (Carpenter v. City of Los Angeles, supra, 230 Cal.App.3d 923). Therefore, a judgment of nonsuit was not properly granted on the grounds enunciated by the trial court. We next consider whether defendants have immunity from liability to plaintiff. 8Link to the text of the note

4. THE ISSUE OF IMMUNITY

According to defendants, Government Code sections 845 and 820.2 both provide them with immunity from liability to plaintiff. However, the law is otherwise.

A. SECTION 845

Government Code section 845 states in pertinent part: "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." "This immunity is meant to protect the budgetary and political decisions which are involved in hiring and deploying a police force. (Cal. Law Rev. Commission com. to § 845.)" (Peterson v. San Francisco Community College Dist. (1984) 36 Cal.3d 799, 815 [205 Cal.Rptr. 842, 685 P.2d 1193]; accord Mann v. State of California, supra, 70 Cal.App.3d at pp. 778-779.) Thus, section 845 was not intended to provide immunity against a particular police officer's negligence in the performance of his duty in a particular situation. (Mann, supra, at pp. 778-779.) No budgetary or political decisions are involved therein.

B. SECTION 820.2

Government Code section 820.2 states: "Except 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." If Detective Richards were to have immunity under section 820.2, then under Government Code section 815.2, 9Link to the text of the note so would the City. (Johnson v. State of California, supra, 69 Cal.2d at p. 787.)

However, just as the Johnson court found that the state's parole agent did not engage in a discretionary function within the meaning of Government Code section 820.2 when he decided whether he was going to warn the Johnsons about the potentially dangerous propensities of the paroled youth whom he placed in the Johnsons' home, so also here, Detective Richards did not engage in discretionary acts when he (1) minimized the importance of the threatening phone call which plaintiff received, (2) determined at various points in his investigation of the Foley murder that he would not inform Demetria or her mother about Grant Christon's possible involvement in other murders nor inform them about Christon's other threats against witnesses, (3) determined that he would not inform them he considered Christon to be a threat to the community at large and especially to persons who might testify against Christon, and (4) determined that he would not offer protection to Demetria despite what he knew about the phone call and about Christon.

In discussing the efforts of reviewing courts to distinguish between acts of a public employee which can be classified as discretionary (and therefore entitled to immunity under Government Code section 820.2) and those which are merely ministerial and not deserving of immunity, the Johnson court said: "Courts and commentators have . . . centered their attention on an assurance of judicial abstention in areas in which the responsibility for basic policy decisions has been committed to coordinate branches of government." (Johnson v. State of California, supra, 69 Cal.2d at p. 793.) The court stated that section 820.2 only seeks to insulate basic policy decisions from liability and the court found that the decision to warn or not warn of foreseeable, latent dangers does not rise to the level of a basic policy decision. 10Link to the text of the note (69 Cal.2d at p. 793 et seq.).

Johnson's ruling regarding a defendant's "failure to warn" was affirmed in Tarasoff v. Regents of University of California (1976) 17 Cal.3d 425 [131 Cal.Rptr. 14, 551 P.2d 334, 83 A.L.R.3d 1166] and reaffirmed in Peterson v. San Francisco Community College Dist., supra, 36 Cal.3d 799. In Peterson, the Supreme Court stated: "As we noted in Tarasoff, . . . the defendant is not immune from liability pursuant to section 820.2 . . . because the failure to warn does not involve those basic policy decisions which this immunity provision was meant to protect. [Citations.]" (Peterson, supra, at p. 815.)

Applying Johnson, Tarasoff and Peterson to the case before us, we hold that although Detective Richards's decision to offer Demetria to the district attorney as a prosecution witness may have been a discretionary one (we need not decide that here), his subsequent decisions to refrain from warning her about the danger associated with her role of witness and refrain from offering her protection were not. A similar conclusion was reached in Carpenter v. City of Los Angeles, supra, 230 Cal.App.3d 923, where police also failed to warn a prosecution witness of the danger he was in. The Carpenter court relied on Tarasoff and Johnson and found that an officer's decision not to warn the plaintiff was not a "basic policy decision" and therefore the City of Los Angeles was not entitled to Government Code section 820.2 immunity. (Carpenter, supra, at p. 935.)

5. PUBLIC POLICY CONSIDERATIONS

Defendants have enumerated a parade of horribles which they contend will surely descend on the criminal justice system if we find they can be held liable to plaintiff for the death of her daughter. In doing so, defendants ignore the fact that the California Supreme Court has already held applicable, to law enforcement and correctional employees, the negligence rules regarding a person's duty to warn of foreseeable, latent perils created by such person. (Davidson v. City of Westminster, supra, 32 Cal.3d 197; Johnson v. State of California, supra, 69 Cal.2d 782.) Further, Walker v. County of Los Angeles, supra, 192 Cal.App.3d 1393 and Carpenter v. City of Los Angeles, supra, 230 Cal.App.3d 923, held that public entities and their employees have a duty of care to persons from whom said employees have requested and obtained aid. The Walker and Carpenter courts stressed the benefit to the public when such aid is rendered. (Walker, supra, at p. 1402; Carpenter, supra, at p. 933.) Thus, precedent abounds for making defendants account for their actions regarding Demetria.

We find language in Johnson v. State of California, supra, 69 Cal.2d at pp. 797-798, to be highly relevant here. In addressing the immunity contentions of the State, the Johnson court said: "Since the entire populace of California benefits from the activity of the Youth Authority, it should also share equally the burden of injuries negligently inflicted on individual citizens; suits against the state provide a fair and efficient means to distribute these losses.

". . . .

"In resisting [our] analysis [regarding Government Code section 820.2 immunity], the state points out that the Youth Authority fulfills the 'important' public service of rehabilitation and invites us to speculate that sanction of tort suits for negligence will impair this rehabilitative effort by encouraging 'either a stand-still in . . . [the] placement operation or at least a timid approach to rehabilitation.' Even if this dubious prediction rests on some basis in fact, however, it cannot serve as a reason for immunity.

"The state's contention finds no support in the cases or in the 1963 codification of immunity law. The Legislature did not isolate the Youth Authority as an agency performing a function too important to risk any judicial surveillance; instead, the Youth Authority, like other agencies, attains immunity for specific types of acts and decisions and not for others. In the absence of a legislative declaration, we cannot say that the Youth Authority performs a function so much more important than that of other state agencies as to warrant total immunity. Indeed, if 'importance' were the criterion, presumably most state services could meet it; immunity would then be the rule rather than the exception, . . .." (Johnson, supra, 69 Cal.2d at pp. 797-798.)

We add our own observations about holding peace officers and their public employers accountable in tort. If we were to hold that an officer can, with impunity, fail to disclose important information to a witness regarding his or her safety, or induce a witness to detrimentally rely on the officer regarding such safety, the number of persons who would henceforth be willing to testify on behalf of the prosecution would most likely fall dramatically. Consequently, so would the number of criminals convicted for their crimes. As the court said in Carpenter, "Criminal prosecution would screech to a grinding halt without the assistance of witnesses. [Citation.]" (Carpenter v. City of Los Angeles, supra, 230 Cal.App.3d at p. 933.)

As our society becomes increasingly violent in its daily human interactions, more and more people are called upon to be witnesses in the prosecution of those causing the violence. Yet, as the number of these potential witnesses grows, so also does the likelihood that they, or their families, will be subjected to violence by the very criminal defendants against whom they will give testimony. Thus, the old phrase "violence begets violence" takes on a new meaning. The threat to the safety of these witnesses is very real, especially when the defendant has gang or drug trafficking affiliations. Unfortunately, the lack of safeguards for such witnesses is also very real.

Society reaps enormous benefits when a witness's testimony succeeds in getting a criminal off the streets and placed behind bars. Society must be willing to pay for that benefit by affording necessary protection to both the witness and his family, for the threat of violence against a witness's family will often silence the witness. Without a continuing and visible public commitment to such protection, it is unrealistic to expect citizens to come forward and provide the information so critica to the successful operation of the criminal justice system. To the extent that government fails to meet this essential responsibility, it cedes control of our cities to the criminals.

If the result which we reach in the case before us brings about a greater level of official concern and action promotive of witness safety, and an appropriate devotion of public resources to that end, the long-term result surely will be an increase in both the effectiveness of the criminal justice system and the level of public confidence in it. The attainment of that result is certainly a public policy goal of very high priority.

DISPOSITION

The judgment of nonsuit is reversed, and the cause is remanded for further proceedings consistent with the views expressed herein. Costs on appeal to plaintiff.

Klein, P. J., and Hinz, J., concurred.

A petition for a rehearing was denied March 1, 1993, and respondents' petition for review by the Supreme Court was denied May 27, 1993. Panelli, J., and George, J., were of the opinion that the petition should be granted.
Footnotes

    1Link to the location of the note in the document

    At trial, Detective Richards stated that he considered the warning that plaintiff's home would be blown up to be "more a harassment of the Wallace family than an actual threat made to Demetria Wallace at that time." However, he admitted that in his log, he had characterized the phone call as a threat and another officer, in writing about the call, called it a threat. Additionally, at trial Detective Richards acknowledged that he had told Detective Mize and Lieutenant Freia that he actually offered plaintiff and Demetria witness protection in light of this September 15, 1983, threat.

    2Link to the location of the note in the document

    As of the time of trial in the instant case, no one had been convicted for murdering Demetria. The officer who investigated her murder testified he did not feel he had sufficient evidence to have murder charges filed against anyone. Grant Christon was in jail on the day Demetria was murdered.

    3Link to the location of the note in the document

    Detective Richards had already testified at trial that (1) plaintiff was not upset when he spoke with her, (2) plaintiff did not indicate to him she was afraid to have Demetria testify, and (3) plaintiff did not indicate to him Demetria would not be allowed to testify. Detective Richards had also testified he had never told plaintiff she had nothing to worry about, never told plaintiff there were 12 other witnesses, never told plaintiff Demetria did not have to change her daily patterns, never told plaintiff that if there was a need to worry he would tell her, and never told plaintiff Grant Christon was going to fry.

    4Link to the location of the note in the document

    The case against Grant Christon for the murder of Foley was dropped after Demetria was killed because the district attorney was not able to proceed at the preliminary hearing without her.

    5Link to the location of the note in the document

    On appeal, defendants assert that both the absence of duty and the presence of statutory immunities prevent plaintiff from recovering against them. We must first address the issue of duty. (Williams v. State of California (1983) 34 Cal.3d 18, 22-23 [192 Cal.Rptr. 233, 664 P.2d 137].)

    6Link to the location of the note in the document

    We do not find that Demetria placed herself in peril by agreeing to sign the witness statement prepared by Detective Richards or by agreeing to honor the subpoenas served on her. Nor did the Johnson court find that by agreeing to foster a parolee from the Youth Authority, the plaintiff in that case placed herself in a position of peril.

    7Link to the location of the note in the document

    A finding that defendants owed Demetria a duty of care is not an end in itself; a person having a duty of care towards another may need to carry out that duty in one or more ways. Thus, the Carpenter court stated: "Reasonable care required that the police, after lulling [Carpenter] into a false sense of security, inform him of this very real threat. [Citations.] We are speaking here of a duty to warn. As evidenced by the Witness Protection Program in which [Carpenter] was placed after being shot, the City already recognizes it has a duty to protect certain witnesses." (Carpenter v. City of Los Angeles, supra, 230 Cal.App.3d at pp. 933- 934.)

    8Link to the location of the note in the document

    Defendants rely on M.B. v. City of San Diego (1991) 233 Cal.App.3d 699 [284 Cal.Rptr. 555], Posey v. State of California (1986) 180 Cal.App.3d 836 [225 Cal.Rptr. 830], and Von Batsch v. American Dist. Telegraph Co. (1985) 175 Cal.App.3d 1111 [222 Cal.Rptr. 239]. However, these cases are distinguishable from the one before us.

    In M.B. v. City of San Diego, the police took reports from the plaintiff after her house had been burglarized (with personal items stolen), and after she later began receiving obscene phone calls from the thief, who told her he was going to return to her home. On both occasions, the police assured the plaintiff that people like the thief "never come back." However, this thief did return, and he raped the plaintiff. In Posey, California Highway Patrol officers observed a car parked on the shoulder of a highway in San Jose. They did not investigate it and two hours later, the car in which the plaintiff was riding collided with the parked car. The plaintiff contended the patrol officers had a duty of care to her to remove the parked car. In Von Batsch, police responded to a burglar alarm at a business. They investigated the premises and afterwards told the employees there were no intruders there. Later, plaintiff's decedent came to the business to work and was killed by intruders. Had the police investigated the roof, they would have found holes through which the intruders gained access to the building.

    The courts in Von Batsch, Posey and M.B. found that the peace officers involved in those cases had no duty of care to the plaintiffs (or their decedents). The officers had not created the perils in which the injured parties found themselves. Nor had the officers made promises to protect the injured persons, or by their conduct induced the injured persons to detrimentally rely on them for protection (Mann v. State of California, supra, 70 Cal.App.3d 773).

    9Link to the location of the note in the document

    Section 815.2 of the Government Code provides in relevant part: "Except as otherwise provided by statute, a public entity is not liable for an injury resulting from an act or omission of an employee of the public entity where the employee is immune from liability."

    10Link to the location of the note in the document

    The Johnson court stated that courts must distinguish between a public employee's discretionary decisions (such as the decision to parole a youth) and that same employee's subsequent ministerial acts which are connected to his discretionary decisions, (such as the act of giving or not giving a warning). The court cited several cases wherein a public employee's decision was found to be (or assumed to be) discretionary but his subsequent decision regarding whether to warn persons who might be harmed by that discretionary decision was not. (Johnson v. State of California, supra, 69 Cal.2d at pp. 793- 798.)

~~~~~~~~~~~~

Mann v. State of California

Court of Appeal of California, Second Appellate District, Division Three

June 16, 1977

Civ. No. 48894

70 Cal. App. 3d 773

ROBERT WYANT MANN, Plaintiff and Appellant, v. THE STATE OF CALIFORNIA, Defendant and Respondent

Subsequent History:

Respondent's Petition for a Hearing by the Supreme Court was Denied August 25, 1977. Clark, J., and Richardson, J., were of the Opinion that the Petition should be Granted.

Prior History:

Superior Court of Los Angeles County, No. C-30541, Samuel Greenfield, Judge.

CALIFORNIA OFFICIAL REPORTS HEADNOTES
Classified to California Digest of Official Reports, 3d Series

CA(1) (1) Negligence § 17—Elements of Actionable Negligence—Proximate Cause—Foresight of Intervening Cause.

--In a personal injury action against the state arising out of a traffic accident in which plaintiff was struck by a car on a freeway while standing by two stalled cars, after a highway patrolman, who had stopped to investigate the stalled cars, left when a tow-truck arrived without taking proper measures to protect the stranded motorists and plaintiff, leaving them in a dangerous unprotected position on the freeway, after which plaintiff and the others were struck by a car driven by an elderly partially blind driver, the evidence did not support the trial court's conclusion of law that the sole cause of the accident was the negligence of the partially blind driver. The evidence did not foreclose a finding that if proper protection had been afforded, the collision would not have occurred, and that the independent intervening negligence of the other driver was reasonably foreseeable by the officer.

CA(2) (2) Government Tort Liability § 5—Grounds for Relief—As Dependent on Liability of Employee—Discretionary Activities—Immunity.

-- Gov. Code, § 820.2, providing that a public employee is not liable for injuries resulting from an act or omission involving the exercise of discretion, did not immunize the state from liability arising out of the conduct of a state highway patrolman who, after investigation of two stalled cars on a freeway, left the plaintiff and other motorists in a dangerous situation in which some were subsequently killed and others injured as the result of another motorist's negligence. Whether or not the patrolman's decision to investigate was discretionary, once he decided to investigate, any negligence on his part in his ministerial performance of the investigation was beyond the protection of the statutory discretionary immunity.

CA(3) (3) Government Tort Liability § 11—Grounds for Relief—Liability Arising From Police and Correctional Activities—Traffic Officer.

-- Gov. Code, § 845, providing that neither a public entity nor a public employee is liable for failure to provide police protection, did not immunize the state from liability arising out of the conduct of a state highway patrolman who, after investigation of two stalled cars on a freeway, left the plaintiff and other motorists in a dangerous situation in which some were subsequently killed and others injured as the result of another motorist's negligence. The failure to protect plaintiff from passing traffic was not the type of failure of police protection the statute was intended to immunize.

CA(4) (4) Government Tort Liability § 11—Grounds for Relief—Liability Arising From Police and Correctional Activities—Traffic Officer.

--In a personal injury action against the state arising out of a traffic accident in which plaintiff was struck by a car on a freeway while standing by two stalled cars shortly after the highway patrolman who had stopped to investigate had left the scene, the trial court committed reversible error in directing a verdict for defendant, since the evidence, viewed in the light most favorable to plaintiff, raised a jury question of actionable negligence, where it appeared the officer failed in his duty as a traffic safety expert to do certain things which would have wholly or partially protected the stranded motorists and those about them, including plaintiff, and in leaving them in a dangerous, unprotected position on a freeway after he had investigated and presumably become aware of their plight. Once a state traffic officer has chosen to investigate the plight of specific persons on a freeway and informed himself of the foreseeable danger to them from passing traffic, a special relationship requiring him to protect them by readily available means arises, and liability may attach if the officer's limited duty of protection in such circumstance is not performed.

Counsel: Ollestad & Freedman, Alan L. Freedman and Norman T. Ollestad for Plaintiff and Appellant.

Evelle J. Younger, Attorney General, and Robert H. Francis, Deputy Attorney General, for Defendant and Respondent.

Judges: Opinion by Cobey, J., with Allport, Acting P. J., and Potter, J., concurring.

Opinion by: COBEY

Opinion

Plaintiff, Robert Wyant Mann, appeals from a judgment on a directed verdict in his personal injury action in favor of defendant, State of California. The fundamental question presented is whether liability may attach to the state by reason of a state traffic officer, after investigation by him, leaving motorists in a dangerous situation on a freeway where some were subsequently killed and others injured as a result of another motorist's negligence. We hold that such liability may attach.
Facts

The pertinent facts are these. 1Link to the text of the note On December 24, 1971, about 11:30 a.m., State Traffic Officer Harvey Lane (then a probationary officer with the California Highway Patrol), on patrol in his fully equipped and distinctively marked patrol car, saw two cars stranded in the speed-change lane of the San Bernardino Freeway, under the Archibald Avenue overcrossing. He pulled his vehicle in behind them, turned on his rearward flashing amber light, and tried to get the forward car started. In doing so he stood in the speed-change lane himself and failed to instruct the occupants of the stalled cars and other interested motorists such as plaintiff, some of whom had gotten out of their cars, to get back into them and to avoid standing between the stalled cars. A few minutes after a tow truck operator appeared at the scene, the officer left to resume his normal patrol without advising any of those present that he was leaving. 2Link to the text of the note His departure left the stranded cars unprotected by the rearward flashing amber light of his patrol car. He also failed to put out upon the freeway any protective flares and did not wait for the tow truck, also equipped with a rearward amber flashing light to assume the protective position his patrol car was vacating. In acting in this manner, Lane violated several guidelines of the California Highway Patrol designed to enhance the safety of motorists on freeways. 3Link to the text of the note

A few minutes after the officer left, a 15-year old car, driven by an 81-year-old driver, blind in his right eye, sideswiped one of the two cars and struck the people around them. He thought that he was in the slow lane of the freeway rather than in the speed-change lane running between an on-ramp and an off-ramp. At the time of the accident, it was raining hard, the pavement of the roadway was slick, and visibility was limited.

In granting the motion for the directed verdict, the trial court stated that it concluded as a matter of law from the evidence that the sole cause of the accident was the negligence of the partially blind driver. The record does not support such a conclusion. The evidence did not foreclose a finding that if proper protection had been provided the collision would not have occurred. Anyone legally responsible for the victims of the accident being in their exposed position could therefore have been found to have contributed in a substantial way to the causation of the accident. (See Vesely v. Sager, 5 Cal.3d 153, 163-164 [95 Cal.Rptr. 623, 486 P.2d 151]; Schwartz v. Helms Bakery Limited, 67 Cal.2d 232, 241-242 [60 Cal.Rptr. 510, 430 P.2d 68].) The jury could also have found that the independent intervening negligent conduct of the partially blind driver was reasonably foreseeable by Officer Lane. It would not in that event have been a superseding cause, but merely the immediate cause of plaintiff's injuries. (See 4 Witkin, Summary of Cal. Law (8th ed. 1974) Torts, p. 2910; Rest.2d Torts (1965) §§ 447, 449, pp. 478, 482.)

The state denies liability for several reasons. The first of these is that Officer Lane's investigation of the plight of the stranded motorists prior to the accident was a discretionary act, and under Government Code section 820.2 a public employee is not liable for injuries resulting from an act or omission involving the exercise of discretion. Officer Lane's decision regarding whether to investigate or not may have been a discretionary decision 4Link to the text of the note (see McCarthy v. Frost, 33 Cal.App.3d 872, 875 [109 Cal.Rptr. 470]), but once he decided to investigate, any negligence on his part in his ministerial performance of the investigation was clearly beyond the protection of the statutory discretionary immunity. (See McCorkle v. City of Los Angeles, 70 Cal.2d 252, 261-262 [74 Cal. Rptr. 389, 449 P.2d 453]; Sava v. Fuller, 249 Cal.App.2d 281, 291 [57 Cal.Rptr. 312]; Tarasoff v. Regents of University of California, 17 Cal.3d 425, 445 [131 Cal.Rptr. 14, 551 P.2d 334].)

The state also denies liability on the further ground of the statutory police protection immunity. Government Code section 845 provides that neither a public entity nor a public employee is liable for failure to provide police protection--either at all or in an insufficient amount. The protection that Officer Lane is claimed to have failed to provide to plaintiff in this case is protection of the safety of plaintiff from passing traffic. This is not police protection in the ordinary sense of the term--that is, protection against crime. It is instead merely protection in a particular situation against primarily the negligence of passing motorists. Furthermore, this failure on Officer Lane's part does not involve a lack of or insufficiency in police protection as such. Lane left the stranded motorists simply to resume his routine patrol.

This is not the type of failure of police protection that section 845 was intended to immunize. As the California Law Revision Commission, the originator of the section (which the Legislature did not change), has pointed out in its comment to the section and elsewhere, the section was designed to prevent political decisions of policy-making officials of government from being second-guessed by judges and juries in personal injury litigation. (See 4 Cal.Law Revision Com. Rep. (1963) pp. 827, 860.) In other words, essentially budgetary decisions of these officials were not to be subject to judicial review in tort litigation. 5Link to the text of the note But what is charged here is not budgetary neglect but negligence by the officer in the performance of his investigation. Accordingly, the police protection immunity does not apply in this case.

There remains the question whether, immunity aside, Officer Lane was actionably negligent as a matter of general tort law. Government Code section 815.2, subdivision (a), provides that a public entity is liable for injury proximately caused by an act or omission of an employee of the entity within the scope of his employment, if the act or omission would, apart from the section, have given rise to a cause of action against the employee. The negligence charged against Officer Lane here consists of his failure to do certain things which would have wholly or partially protected the stranded motorists and those about them, including plaintiff, which, as an expert in traffic safety, Officer Lane was enjoined to do, and in leaving them in a dangerous, unprotected position on a freeway after he had investigated and presumably become fully aware of their plight. This misconduct would appear to be a series of negligent omissions, though, rather than affirmative acts of negligence. Stated otherwise, these deficiencies in conduct look much more like nonfeasance than they do misfeasance. (See Weirum v. RKO General, Inc., 15 Cal.3d 40, 49 [123 Cal.Rptr. 468, 539 P.2d 36].)

If this be so, then Officer Lane and, through him, the State of California can be held liable for these negligent omissions only if a special relationship then obtained between him and plaintiff. We believe on the basis of the following rationale and on the record before us viewed most favorably for plaintiff that such a relationship could have been found in this case. The California Supreme Court, Prosser and the Restatement Second of Torts all recognize that "special relationship" is an expanding concept in tort law. (See Tarasoff v. Regents of University of California, supra, 17 Cal.3d at p. 435, fn. 5; Prosser, Law of Torts (4th ed. 1971) § 56, pp. 339-340; Rest.2d Torts (1965) § 314A, coms. a, b.) As the Restatement suggests, the law appears to be heading toward a recognition of the duty to aid or protect in any relation of dependence or of mutual dependence. (Id., com. b; see also Fleming, Law of Torts (4th ed. 1971) p. 143.)

Clearly plaintiff was dependent upon Officer Lane here. Officer Lane was the expert in traffic safety and charged with specific responsibility for it on the stretch of freeway in question. (Cf. Comment, Municipality Liable for Negligent Failure to Protect Informer: The Schuster Case (1959) 59 Colum.L.Rev. 487, 502.) Once, having apprised himself of the dangerous position of the stranded motorists and those about them, such as plaintiff, he had a duty to exercise ordinary care to protect these people from traffic dangers at least to the extent of the already-mentioned readily available means of doing so. 6Link to the text of the note While no special relationship may exist between members of the California Highway Patrol and the motoring public generally, or between the Patrol and stranded motorists generally, once a state traffic officer has chosen to investigate the plight of specific persons on a freeway and informed himself of the foreseeable danger to them from passing traffic, a special relationship requiring him to protect them by readily available means arises and liability may attach if the officer's limited duty to protect these people under these special circumstances is not performed. Stated otherwise, the foreseeable risk of harm to those people may have been unreasonable and, if so, Officer Lane, as a state traffic officer who had acquainted himself with their plight, had a duty to exercise ordinary care to protect them from such risk. (See Hergenrether v. East, 61 Cal.2d 440, 445 [39 Cal.Rptr. 4, 393 P.2d 164].)

In sum, then, viewing the evidence in this case in the light most favorable to plaintiff, as is required in a directed verdict situation, it was at the very least a jury question as to whether Officer Lane's conduct constituted actionable negligence toward plaintiff proximately causing the injuries sued upon. Accordingly, the trial court should not have directed the verdict.

The judgment for the State of California on directed verdict is reversed.

Footnotes

    1Link to the location of the note in the document

    This statement of facts constitutes a summary of the relevant evidence in the light most favorable to plaintiff. (See Dailey v. Los Angeles Unified Sch. Dist., 2 Cal.3d 741, 745 [87 Cal.Rptr. 376, 470 P.2d 360].)

    2Link to the location of the note in the document

    Prior to departing, Officer Lane did inquire of the tow truck operator whether he would be able to handle the situation--i.e., both vehicles.

    3Link to the location of the note in the document

    See California Highway Patrol Guidelines HPG 70.6, Enforcement Tactics, chapter 9, at pages 2-3; HPG 70.18, Freeway Enforcement, chapter 2, at pages 4, 5 and 12.

    4Link to the location of the note in the document

    It can be argued, though, that this decision was not within the scope of the statutory discretionary immunity because it was neither a carefully balanced basic policy decision nor a planning (as opposed to an operational) decision. (See Johnson v. State of California, 69 Cal.2d 782, 793-795 [73 Cal.Rptr. 240, 447 P.2d 352]; Elton v. County of Orange, 3 Cal.App.3d 1053, 1058 [84 Cal.Rptr. 27].)

    5Link to the location of the note in the document

    The comment of the commission under the circumstances is at the very least strong indication of legislative intent. (See Van Arsdale v. Hollinger, 68 Cal.2d 245, 249-250 [66 Cal.Rptr. 20, 437 P.2d 508]; Arellano v. Moreno, 33 Cal.App.3d 877, 884 [109 Cal.Rptr. 421].)

    This limitation upon the scope of the immunity has apparently been discussed in but one of three cases applying the immunity. (See Susman v. City of Los Angeles, 269 Cal.App.2d 803, 810, fn. 2, 815, 821 [75 Cal.Rptr. 240]; Antique Arts Corp. v. City of Torrance, 39 Cal.App.3d 588 [114 Cal.Rptr. 332]; Hartzler v. City of San Jose, 46 Cal.App.3d 6 [120 Cal.Rptr. 5].)

    6Link to the location of the note in the document

    This result of possible liability on the part of the state can be reached by a somewhat different route. In Hartzler v. City of San Jose, supra, 46 Cal.App.3d at page 10, the court spoke as follows: "The common theme running through these decisions is the voluntary assumption by the public entity or official of a duty toward the injured party. Even though there is initially no liability on the part of the government for its acts or omissions, once it undertakes action on behalf of a member of the public, and thereby induces that individual's reliance, it is then held to the same standard of care as a private person or organization."

    This is essentially an estoppel theory of liability and one which we regard as unnecessary in view of the already indicated language of Government Code section 815.2. In other words, in our view, possible liability is much the same in a situation of this kind, regardless of whether the defendant is a public entity or someone from the private sector.

~~~~~~~~~~~

U.S. Supreme Court

CARROLL v. U.S., 267 U.S. 132 (1925)

267 U.S. 132

CARROLL et al.
v.
UNITED STATES.

No. 15.

Reargued and Submitted March 14, 1924.

Decided March 2, 1925.

[267 U.S. 132, 136]   Messrs. Thomas E. Atkinson and Clare J. Hall, both of Grand Rapids, Mich., for plaintiffs in error.

[267 U.S. 132, 143]   The Attorney General and Mr. James M. Beck, Sol. Gen., of Washington, D. C., for the United States.

Mr. Chief Justice TAFT, after stating the case as above, delivered the opinion of the Court.

The constitutional and statutory provisions involved in this case include the Fourth Amendment and the National Prohibition Act.

The Fourth Amendment is in part as follows:

        'The right of the people to be secure in their persons, houses, papers and effects against unreasonable searches and seizures shall not be violated, and no warrants shall issue but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.'

Section 25, title 2, of the National Prohibition Act, c. 85, 41 Stat. 305, 315, passed to enforce the Eighteenth Amendment, makes it unlawful to have or possess any liquor intended for use in violating the act, or which has been so used, and provides that no property rights shall exist in such inquor. A search warrant may issue and such liquor, with the containers thereof, may be seized under the warrant and be ultimately destroyed. The section further provides:

        'No search warrant shall issue to search any private dwelling occupied as such unless it is being used for the unlawful sale of intoxicating liquor, or unless it is in part used for some business purpose such as a store, shop, saloon, restaurant, hotel, or boaring house. The term 'private dwelling' shall be construed to include the room or rooms used and occupied not transiently but solely as [267 U.S. 132, 144]   a residence in an apartment house, hotel, or boarding house.'

Section 26, title 2, under which the seizure herein was made, provides in part as follows:

        'When the commissioner, his assistants, inspectors, or any officer of the law shall discover any person in the act of transporting in violation of the law, intoxicating liquors in any wagon, buggy, automobile, water or air craft, or other vehicle, it shall be his duty to seize any and all intoxicating liquors found therein being transported contrary to law. Whenever intoxicating liquors transported or possessed illegally shall be seized by an officer he shall take possession of the vehicle and team or automobile, boat, air or water craft, or any other conveyance, and shall arrest any person in charge thereof.'

The section then provides that the court upon conviction of the person so arrested shall order the liquor destroyed, and except for good cause shown shall order a sale by public auction of the other property seized, and that the proceeds shall be paid into the Treasury of the United States.

By section 6 of an act supplemental to the National Prohibition Act ( 42 Stat. 222, 223, c. 134 [Comp. St. Ann. Supp. 1923, 10184a]) it is provided that if any officer or agent or employee of the United States engaged in the enforcement of the Prohibition Act or this Amendment, 'shall search any private dwelling,' as defined in that act, 'without a warrant directing such search,' or 'shall without a search warrant maliciously and without reasonable cause search any other building or property,' he shall be guilty of a misdemeanor and subject to fine or imprisonment or both.

In the passage of the supplemental act through the Senate, amendment No. 32, known as the Stanley Amendment, was adopted, the relevant part of which was as follows:

        'Sec. 6. That any officer, agent or employee of the United States engaged in the enforcement of this act or [267 U.S. 132, 145]   the National Prohibition Act, or any other law of the United States, who shall search or attempt to search the property or premises of any person without previously securing a search warrant, as provided by law, shall be guilty of a misdemeanor and upon conviction thereof shall be fined not to exceed $1,000, or imprisoned not to exceed one year, or both so fined and imprisoned in the discretion of the court.'

This amendment was objected to in the House, and the judiciary committee, to whom it was referred, reported to the House of Representatives the following as a substitute:

        'Sec. 6. That no officer, agent or employee of the United States, while engaged in the enforcement of this act, the National Prohibition Act, or any law in reference to the manufacture or taxation of, or traffic in, intoxicating liquor, shall search any private dwelling without a warrant directing such search, and no such warrant shall issue unless there is reason to believe such dwelling is used as a place in which liquor is manufactured for sale or sold. The term 'private dwelling' shall be construed to include the room or rooms occupied not transiently, but solely as a residence in an apartment house, hotel, or boarding house. Any violation of any provision of this paragraph shall be punished by a fine of not to exceed $1,000 or imprisonment not to exceed one year, or both such fine and imprisonment, in the discretion of the court.'

In its report the committee spoke in part as follows:

        'It appeared to the committee that the effect of the Senate amendment No. 32, if agreed to by the House, would greatly cripple the enforcement of the National Prohibition Act and would otherwise seriously interfere with the government in the enforcement of many other laws, as its scope is not limited to the prohibition law, [267 U.S. 132, 146]   but applies equally to all laws where prompt action is necessary. There are on the statute books of the United States a number of laws authorizing search without a search warrant. Under the common law and agreeable to the Constitution search may in many cases be legally made without a warrant. The Constitution does not forbid search, as some parties contend, but it does forbid unreasonable search. This provision in regard to search is as a rule contained in the various state Constitutions, but notwithstanding that fact search without a warrant is permitted in many cases, and especially is that true in the enforcement of liquor legislation.

        'The Senate amendment prohibits all search or attempt to search any property or premises without a search warrant. The effect of that would necessarily be to prohibit all search, as no search can take place if it is not on some property or premises.

        'Not only does this amendment prohibit search of any lands but it prohibits the search of all property. It will prevent the search of the common bootlegger and his stock in trade, though caught and arrested in the act of violating the law. But what is perhaps more serious, it will make it impossible to stop the rum-running automobiles engaged in like illegal traffic. It would take from the officers the power that they absolutely must have to be of any service, for if they cannot search for liquor without a warrant they might as well be discharged. It is impossible to get a warrant to stop an automobile. Before a warrant could be secured the automobile would be beyond the reach of the officer with its load of illegal liquor disposed of.'

The conference report resulted, so far as the difference between the two houses was concerned, in providing for the punishment of any officer, agent, or employee of the government who searches a 'private dwelling' without a warrant, and for the punishment of any such officer, [267 U.S. 132, 147]   etc., who searches any 'other building or property' where, and only where, he makes the search without a warrant 'maliciously and without probable cause.' In other words, it left the way open for searching an automobile or vehicle of transportation without a warrant, if the search was not malicious or without probable cause.

The intent of Congress to make a distinction between the necessity for a search warrant in the searching of private dwellings and in that of automobiles and other road vehicles in the enforcement of the Prohibition Act is thus clearly established by the legislative history of the Stanley Amendment. Is such a distinction consistent with the Fourth Amendment? We think that it is, The Fourth Amendment does not denounce all searches or seizures, but only such as are unreasonable.

The leading case on the subject of search and seizure is Boyd v. United States, 116 U.S. 616 , 6 S. Ct. 524. An Act of Congress of June 22, 1874 (18 Stat. 187), authorized a court of the United States in revenue cases, on motion of the government attorney, to require the defendant to produce in court his private books, invoices, and papers on pain in case of refusal of having the allegations of the attorney in his motion taken as confessed. This was held to be unconstitutional and void as applied to suits for penalties or to establish a forfeiture of goods, on the ground that under the Fourth Amendment the compulsory production of invoices to furnish evidence for forfeiture of goods constituted an unreasonable search even where made upon a search warrant, and was also a violation of the Fifth Amendment, in that it compelled the defendant in a criminal case to produce evidence against himself or be in the attitude of confessing his guilt.

In Weeks v. United States, 232 U.S. 383 , 34 S. Ct. 341, L. R. A. 1915B, 834, Ann. Cas. 1915C, 1177, it was held that a court in a criminal prosecution could not retain letters of the accused seized in his house, in his absence and without his authority, by a United States marshal [267 U.S. 132, 148]   holding no warrant for his arrest and none for the search of his premises, to be used as evidence against him, the accused having made timely application to the court for an order for the return of the letters.

In Silverthorne Lumber Co. v. United States, 251 U.S. 385 , 40 S. Ct. 182, a writ of error was brought to reverse a judgment of contempt of the District Court, fining the company and imprisoning one Silverthorne, its president, until he should purge himself of contempt in not producing books and documents of the company before the grand jury to prove violation of the statutes of the United States by the company and Silverthorne. Silverthorne had been arrested, and while under arrest the marshal had gone to the office of the company without a warrant and made a clean sweep of all books, papers, and documents found there and had taken copies and photographs of the papers. The District Court ordered the return of the originals, but impounded the photographs and copies. This was held to be an unreasonable search of the property and possessions of the corporation and a violation of the Fourth Amendment and the judgment for contempt was reversed.

In Gouled v. United States, 255 U.S. 298 , 41 S. Ct. 261, the obtaining through stealth by a representative of the government from the office of one suspected of defrauding the government of a paper which had no pecuniary value in itself, but was only to be used as evidence against its owner, was held to be a violation of the Fourth Amendment. It was further held that when the paper was offered in evidence and duly objected to it must be ruled inadmissible because obtained through an unreasonable search and seizure and also in violation of the Fifth Amendment because working compulsory incrimination.

In Amos v. United States, 255 U.S. 313 , 41 S. Ct. 266, it was held that where concealed liquor was found by government officers without a search warrant in the home of the defendant, [267 U.S. 132, 149]   in his absence, and after a demand made upon his wife, it was inadmissible as evidence against the defendant, because acquired by an unreasonable seizure.

In none of the cases cited is there any ruling as to the validity under the Fourth Amendment of a seizure without a warrant of contraband goods in the course of transportation and subject to forfeiture or destruction.

On reason and authority the true rule is that if the search and seizure without a warrant are made upon probable cause, that is, upon a belief, reasonably arising out of circumstaces known to the seizing officer, that an automobile or other vehicle contains that which by law is subject to seizure and destruction, the search and seizure are valid. The Fourth Amendment is to be construed in the light of what was deemed an unreasonable search and seizure when it was adopted, and in a manner which will conserve public interests as well as the interests and rights of individual citizens.

In Boyd v. United States, 116 U.S. 616 , 6 S. Ct. 524, as already said, the decision did not turn on whether a reasonable search might be made without a warrant; but for the purpose of showing the principle on which the Fourth Amendment proceeds, and to avoid any misapprehension of what was decided, the court, speaking through Mr. Justice Bradley, used language which is of particular significance and applicability here. It was there said (page 623 [6 S. Ct. 528]):

        'The search for and seizure of stolen or forfeited goods, or goods liable to duties and concealed to avoid the payment thereof, are totally different things from a search for and seizure of a man's private books and papers for the purpose of obtaining information therein contained, or of using them as evidence against him. The two things differ toto coelo. In the one case, the government is entitled to the possession of the property; in the other it is not. The seizure of stolen goods is authorized by the [267 U.S. 132, 150]   common law; and the seizure of goods forfeited for a breach of the revenue laws, or concealed to avoid the duties payable on them, has been authorized by English statutes for at least two centuries past; and the like seizures have been authorized by our own revenue acts from the commencement of the government. The first statute passed by Congress to regulate the collection of duites, the Act of July 31, 1789, 1 Stat. 29, 43, contains provisions to this effect. As this act was passed by the same Congress which proposed for adoption the original amendments to the Constitution, it is clear that the members of that body did not regard searches and seizures of this kind as 'unreasonable,' and they are not embraced within the prohibition of the amendment. So, also, the supervision authorized to be exercised by officers of the revenue over the manufacture or custody of excisable articles, and the entries thereof in books required by law to be kept for their inspection, are necessarily excepted out of the category of unreasonable searches and seizures. So, also, the laws which provide for the search and seizure of articles and things which it is unlawful for a person to have in his possession for the purpose of issue or disposition, such as counterfeit coin, lottery tickets, implements of gambling, etc., are not within this category. Common- welath v. Dana, 2 Metc. (Mass.) 329. Many other things of this character might be enumerated.'

It is noteworthy that the twenty-fourth section of the act of 1789 to which the court there refers provides:

        'That every collector, naval officer and surveyor, or other person specially appointed by either of them for that purpose, shall have full power and authority, to enter any ship or vessel, in which they shall have reason to suspect any goods, wares or merchandise subject to duty shall be concealed; and therein to search for, seize, and secure any such goods, wares or merchandise; and if they shall have cause to suspect a concealment thereof, in any [267 U.S. 132, 151]   particular dwelling house, store, building, or other place, they or either of them shall, upon application on oath or affirmation to any justice of the peace, be entitled to a warrant to enter such house, store, or other place (in the daytime only) and there to search for such goods, and if any shall be found, to seize and secure the same for trial; and all such goods, wares and merchandise, on which the duties shall not have been paid or secured, shall be forfeited.' 1 Stat. 43.

Like provisions were contained in the Act of August 4, 1790, c. 35, 48-51, 1 Stat. 145, 170; in section 27 of the Act of February 18, 1793, c. 8, 1 Stat. 305, 315; and in sections 68-71 of the Act of March 2, 1799, c. 22, 1 Stat. 627, 677, 678.

Thus contemporaneously with the adoption of the Fourth Amendment we find in the First Congress, and in the following Second and Fourth Congresses, a difference made as to the necessity for a search warrant between goods subject to forfeiture, when concealed in a dwelling house or similar place, and like goods in course of transportation and concealed in a movable vessel where they readily could be put out of reach of a search warrant. Compare Hester v. United States, 265 U.S. 57 , 44 S. Ct. 445.

Again, by the second section of the Act of March 3, 1815, 3 Stat. 231, 232, it was made lawful for customs officers, not only to board and search vessels within their own and adjoining districts, but also to stop, search, and examine any vehicle, beast, or person on which or whom they should suspect there was merchandise which was subject to duty or had been introduced into the United States in any manner contrary to law, whether by the person in charge of the vehicle or beast or otherwise, and if they should find any goods, wares or merchandise thereon, which they had probable cause to believe had been so unlawfully brought into the country, to seize and secure the same, and the vehicle or beast as well, for trial [267 U.S. 132, 152]   and forfeiture. This act was renewed April 27, 1816 (3 Stat. 315), for a year and expired. The Act of February 28, 1865, revived section 2 of the Act of 1815, above described, 13 Stat. 441, c. 67. The substance of this section was re-enacted in the third section of the Act of July 18, 1866, c. 201, 14 Stat. 178, and was thereafter embodied in the Revised Statutes as section 3061 (Comp. St. 5763). Neither section 3061 nor any of its earlier counterparts has ever been attacked as unconstitutional. Indeed, that section was referred to and treated as operative by this court in Cotzhausen v. Nazro, 107 U.S. 215, 219 , 2 S. Ct. 503. See, also, United States v. One Black Horse (D C.) 129 F. 167.

Again by section 2140 of the Revised Statutes (Comp. St. 4141) any Indian agent, subagent or commander of a military post in the Indian country, having reason to suspect or being informed that any white person or Indian is about to introduce, or has introduced, any spirituous liquor or wine into the Indian country, in violation of law, may cause the boats, stores, packages, wagons, sleds and places of deposit of such person to be searched and if any liquor is found therein, then it, together with the vehicles, shall be seized and and proceeded against by libel in the proper court and forfeited. Section 2140 was the outgrowth of the Act of May 6, 1822, c. 58, 3 Stat. 682, authorizing Indian agents to cause the goods of traders in the Indian country to be searched upon suspicion or information that ardent spirits were being introduced into the Indian country to be seized and forfeited if found, and of the Act of June 30, 1834, 20, c. 161, 4 Stat. 729, 732, enabling an Indian agent having reason to suspect any person of having introduced or being about to introduce liquors into the Indian country to cause the boat, stores or places of deposit of such person to be searched and the liquor found forfeited. This court recognized the statute of 1822 as justifying such a search and seizure in American Fur Co. v. United States, 2 Pet. 358. By the Indian [267 U.S. 132, 153]   Appropriation Act of March 2, 1917, c. 146, 39 Stat. 969, 970, automobiles used in introducing or attempting to introduce intoxicants into the Indian territory may be seized, libeled, and forfeited as provided in the Revised Statutes, 2140

And again in Alaska, by section 174 of the Act of March 3, 1899, c. 429, 30 Stat. 1253, 1280, it is provided that collectors and deputy collectors or any person authorized by them in writing shall be given power to arrest persons and seize vessels and merchandise in Alaska liable to fine, penalties, or forfeiture under the act and to keep and deliver the same, and the Attorney General, in construing the act, advised the government:

        'If your agents reasonably suspect that a violation of law has occurred, in my opinion they have power to search any vessel within the three-mile limit according to the practice of customs officers when acting under section 3059 of the Revised Statutes [Comp. St. 5761], and to seize such vessels.' 26 Op. Attys. Gen. 243.

We have made a somewhat extended reference to these statutes to show that the guaranty of freedom from unreasonable searches and seizures by the Fourth Amendment has been construed, practically since the beginning of the government, as recognizing a necessary difference between a search of a store, dwelling house, or other structure in respect of which a proper official warrant readily may be obtained and a search of a ship, motor boat, wagon, or automobile for contraband goods, where it is not practicable to secure a warrant, because the vehicle can be quickly moved out of the locality or jurisdiction in which the warrant must be sought.

Having thus established that contraband goods concealed and illegally transported in an automobile or other vehicle may be searched for without a warrant, we come now to consider under what circumstances such search may be made. It would be intolerable and unreasonable [267 U.S. 132, 154]   if a prohibition agent were authorized to stop every automobile on the chance of finding liquor, and thus subject all persons lawfully using the highways to the inconvenience and indignity of such a search. Travelers may be so stopped in crossing an international boundary because of national self-protection reasonably requiring one entering the country to identify himself as entitled to come in, and his belongings as effects which may be lawfully brought in. But those lawfully within the country, entitled to use the public highways, have a right to free passage without interruption or search unless there is known to a competent official, authorized to search, probable cause for believing that their vehicles are carrying contraband or illegal merchandise. Section 26, title 2, of the National Prohibition Act, like the second section of the act of 1789, for the searching of vessels, like the provisions of the act of 1815, and section 3601, Revised Statutes, for searching vehicles for smuggled goods, and like the act of 1822, and that of 1834 and section 2140, R. S., and the act of 1917 for the search of vehicles and automobiles for liquor smuggled into the Indian country, was enacted primarily to accomplish the seizure and destruction of contraband goods; secondly, the automobile was to be forfeited; and, thirdly, the driver was to be arrested. Under section 29, title 2, of the act the latter might be punished by not more than $500 fine for the first offense, not more than $1,000 fine and 90 days' imprisonment for the second offense, and by a fine of $500 or more and by not more than 2 years' imprisonment for the third offense. Thus he is to be arrested for a misdemeanor for his first and second offenses, and for a felony if he offends the third time.

The main purpose of the act obviously was to deal with the liquor and its transportation, and to destroy it. The mere manufacture of liquor can do little to defeat the policy of the Eighteenth Amendment and the Prohibition Act, unless the for [267 U.S. 132, 155]   bidden product can be distributed for illegal sale and use. Section 26 was intended to reach and destroy the forbidden liquor in transportation and the provisions for forfeiture of the vehicle and the arrest of the transporter were incidental. The rule for determining what may be required before a seizure may be made by a competent seizing official is not to be determined by the character of the penalty to which the transporter may be subjected. Under section 28, title 2, of the Prohibition Act, the Commissioner of Internal Revenue, his assistants, agents and inspectors are to have the power and protection in the enforcement of the act conferred by the existing laws relating to the manufacture or sale of intoxicating liquors. Officers who seize under section 26 of the Prohibition Act are therefore protected by section 970 of the Revised Statutes (Comp. St. 1611), providing that:

        'When, in any prosecution commenced on account of the seizure of any vessel, goods, wares, or merchandise, made by any collector or other officer, under any act of Congress authorizing such seizure, judgment is rendered for the claimant, but it appears to the court that there was reasonable cause of seizure, the court shall cause a proper certificate thereof to be entered, and the claimant shall not, in such case, be entitled to costs, nor shall the person who made the seizure, nor the prosecutor, be liable to suit or judgment on account of such suit or prosecution: Provided, that the vessel, goods, wares, or merchandise be, after judgment, forthwith returned to such claimant or his agent.'

It follows from this that, if an officer seizes an automobile or the liquor in it without a warrant, and the facts as subsequently developed do not justify a judgment of condemnation and forfeiture, the officer may escape costs or a suit for damages by a showing that he had reasonable or probable cause for the seizure. Stacey v. Emery, 97 U.S. 642 . The measure of legality of such a seizure is, [267 U.S. 132, 156]   therefore, that the seizing officer shall have reasonable or probable cause for believing that the automobile which he stops and seizes has contraband liquor therein which is being illegally transported.

We here find the line of distinction between legal and illegal seizures of liquor in transport in vehicles. It is certainly a reasonable distinction. It gives the owner of an automobile or other vehicle seized under section 26, in absence of probable cause, a right to have restored to him the automobile, it protects him under the Weeks and Amos Cases from use of the liquor as evidence against him, and it subjects the officer making the seizures to damages. On the other hand, in a case showing probalbe cause, the government and its officials are given the opportunity which they should have, to make the investigation necessary to trace reasonably suspected contraband goods and to seize them.

Such a rule fulfills the guaranty of the Fourth Amendment. In cases where the securing of a warrant is reasonably practicable, it must be used and when properly supported by affidavit and issued after judicial approval protects the seizing officer against a suit for damages. In cases where seizure is impossible except without warrant, the seizing officer acts unlawfully and at his peril unless he can show the court probable cause. United States v. Kaplan (D. C.) 286 F. 963, 972.

But we are pressed with the argument that if the search of the automobile discloses the presence of liquor and leads under the staute to the arrest of the person in charge of the automobile, the right of seizure should be limited by the common-law rule as to the circumstances justifying an arrest without a warrant for a misdemeanor. The usual rule is that a police officer may arrest without warrant one believed by the officer upon reasonable cause to have been guilty of a felony, and that he may only arrest without a warrant one guilty of a misdemeanor if committed [267 U.S. 132, 157]   in his presence. Kurtz v. Moffitt, 115 U.S. 487 , 6 S. Ct. 148; John Bad Elk v. United States, 177 U.S. 529 , 20 S. Ct. 729. The rule is sometimes expressed as follows:

        'In cases of misdemeanor, a peace officer like a private person has at common law no power of arresting without a warrant except when a breach of the peace has been committed in his presence or there is reasonable ground for supposing that a breach of peace is about to be committed or renewed in his presence.' Halsbury's Laws of England, vol. 9, part. III, 612.

The reason for arrest for misdemeanors without warrant at common law was promptly to suppress breaches of the peace (1 Stephen, History of Criminal Law, 193), while the reason for arrest without warrant on a reliable report of a felony was because the public safety and the due apprehension of criminals charged with heinous offenses required that such arrests should be made at once without warrant (Rohan v. Sawin, 5 Cush. [ Mass.] 281). The argument for defendants is that, as the misdemeanor to justify arrest without warrant must be committed in the presence of the police officer, the offense is not committed in his presence unless he can by his senses detect that the liquor is being transported, no matter how reliable his previous information by which he can identify the automobile as loaded with it. Elrod v. Moss (C. C. A.) 278 F. 123; Hughes v. State, 145 Tenn. 544, 238 S. W. 588, 20 A. L. R. 639.

So it is that under the rule contended for by defendants the liquor if carried by one who has been already twice convicted of the same offense may be seized on information other than the senses, while if he has been only once convicted it may not be seized unless the presence of the liquor is detected by the senses as the automobile concealing it rushes by. This is certainly a very unsatisfactory line of difference when the main object of the section is to forfeit and suppress the liquor, the arrest of the individual being only incidental as shown by the lightness [267 U.S. 132, 158]   of the penalty. See Commonwealth v. Street, 3 Pa. Dist. and Co. Ct. Rep. 783. In England at the common law the difference in punishment between felonies and misdemeanors was very great. Under our present federal statutes, it is much less important and Congress may exercise a relatively wide discretion in classing particular offenses as felonies or misdemeanors. As the main purpose of section 26 was seizure and forfeiture, it is not so much the owner as the property that offends. Agnew v. Haymes, 141 F. 631, 641, 72 C. C. A. 325. The language of the section provides for seizure when the officer of the law 'discovers' any one in the act of transporting the liquor by automobile or other vehicle. Certainly it is a very narrow and technical construction of this word which would limit it to what the officer sees, hears or smells as the automobile rolls by and excludes therefrom when he identifies the car the convincing information that he may previously have received as to the use being made of it.

We do not think such a nice distinction is applicable in the present case. When a man is legally arrested for an offense, whatever is found upon his person or in his control which it is unlawful for him to have and which may be used to prove the offense may be seized and held as evidence in the prosecution. Weeks v. United States, 232 U.S. 383, 392 , 34 S. Ct. 341, L. R. A. 1915B, 834, Ann. Cas. 1915C, 1177; Dillon v. O'Brien and Davis, 16 Cox, C. C. 245; Getchell v. Page, 103 Me. 387, 69 A. 624, 18 L. R. A. (N. S.) 253, 125 Am. St. Rep. 307; Kneeland v. Connally, 70 Ga. 424; 1 Bishop, Criminal Procedure, 211; 1 Wharton, Criminal Procedure (10th Ed.) 97.   The argument of defendants is based on the theory that the seizure in this case can only be thus justified.   If their theory were sound, their conclusion would be.   The validity of the seizure then would turn wholly on the validity of the arrest without a seizure.   But the theory is unsound.   The right to search and the validity of the seizure are not dependent on the right to arrest.   They are dependent on the reasonable cause the seizing officer [267 U.S. 132, 159]   has for belief that the contents of the automobile offend against the law.   The seizure in such a proceeding comes before the arrest as section 26 indicates.   It is true that section 26, title 2, provides for immediate proceedings against the person arrested and that upon conviction the liquor is to be destroyed and the automobile or other vehicle is to be sold, with the saving of the interest of a lienor who does not know of its unlawful use; but it is evident that if the person arrested is ignorant of the contents of the vehicle, or if he escapes, proceedings can be had against the liquor for destruction or other disposition under section 25 of the same title.   The character of the offense for which, after the contraband liquor is found and seized, the driver can be prosecuted does not affect the validity of the seizure.

This conclusion is in keeping with the requirements of the Fourth Amendment and the principles of search and seizure of contraband forfeitable property; and it is a wise one because it leaves the rule one which is easily applied and understood and is uniform. Houck v. State, 106 Ohio St. 195, 140 N. E. 112, accords with this conclusion. Ash v. United States (C. C. A.) 299 F. 277, and Milam v. United States (C. C. A.) 296 F. 629, decisions by the Circuit Court of Appeals for the Fourth Circuit take the same view.   The Ash Case is very similar in its facts to the case at bar, and both were by the same court which decided Snyder v. United States ( C. C. A.) 285 F. 1, cited for the defendants. See, also, Park v. United States (1st C. C. A.) 294 F. 776, 783, and Lambert v. United States (9th C. C. A.) 282 F. 413.

Finally, was there probable cause?   In The Apollon, 9 Wheat. 362, the question was whether the seizure of a French vessel at a particular place was upon probable cause that she was there for the purpose of smuggling.   In this discussion Mr. Justice Story, who delivered the judgment of the court, said (page 374):

        'It has been very justly observed at the bar that the court is bound to take notice of public facts and geographical [267 U.S. 132, 160] positions, and that this remote part of the country has been infested, at different periods, by smugglers, is matter of general notoriety, and may be gathered from the public documents of the government.'

We know in this way that Grand Rapids is about 152 miles from Detroit, and that Detroit and its neighborhood along the Detroit river, which is the international boundary, is one of the most active centers for introducing illegally into this country spirituous liquors for distribution into the interior. It is obvious from the evidence that the prohibition agents were engaged in a regular patrol along the important highways from Detroit to Grand Rapids to stop and seize liquor carried in automobiles. They knew or had convincing evidence to make them believe that the Carroll boys, as they called them, were so-called 'bootleggers' in Grand Rapids; i. e., that they were engaged in plying the unlawful trade of selling such liquor in that city. The officers had soon after noted their going from Grand Rapids half way to Detroit, and attempted to follow them to that city to see where they went, but they escaped observation. Two months later these officers suddenly met the same men on their way westward presumably from Detroit. The partners in the original combination to sell liquor in Grand Rapids were together in the same automobile they had been in the night when they tried to furnish the whisky to the officers, which was thus identified as part of the firm equipment. They were coming from the direction of the great source of supply for their stock to Grand Rapids, where they plied their trade. That the officers, when they saw the defendants, believed that they were carrying liquor, we can have no doubt, and we think it is equally clear that they had reasonable cause for thinking so. Emphasis is put by defendants' counsel on the statement made by one of the officers that they were not looking for defendants at the particular time when they appeared. We do not perceive that it has any weight. As soon as they did appear, [267 U.S. 132, 161]   the officers were entitled to use their reasoning faculties upon all the facts of which they had previous knowledge in respect to the defendants.

The necessity for probable cause in justifying seizures on land or sea, in making arrests without warrant for past felonies, and in malicious prosecution and false imprisonment cases has led to frequent definition of the phrase. In Stacey v. Emery, 97 U.S. 642 , 645 (24 L. Ed. 1035), a suit for damages for seizure by a collector, this court defined probable cause as follows:

    'If the facts and circumstances before the officer are such as to warrant a man of prudence and caution in believing that the offense has been committed, it is sufficient.'

See Locke v. United States, 7 Cranch, 339; The George, 1 Mason, 24, Fed. Cas. No. 5328; The Thompson, 3 Wall. 155.

It was laid down by Chief Justice Shaw, in Commonwealth v. Carey, 12 Cush. 246, 251, that:

    'If a constable or other peace officer arrest a person without a warrant, he is not bound to show in his justification a felony actually committed, to render the arrest lawful; but if he suspects one on his own knowledge of facts, or on facts communicated to him by others, and thereupon he has reasonable ground to believe that the accused has been guilty of felony, the arrest is not unlawful.' Commonwealth v. Phelps, 209 Mass. 396, 95 N. E. 868, Ann. Cas. 1912B, 566; Rohan v. Sawin, 5 Cush. 281, 285.

In McCarthy v. De Armit, 99 Pa. 63, the Supreme Court of Pennsylvania sums up the definition of probable cause in this way (page 69):

    'The substance of all the definitions is a reasonable ground for belief of guilt.'

In the case of the Director General v. Kastenbaum, 263 U.S. 25 , 44 S. Ct. 52, which was a suit for false imprisonment, it was said by this court (page 28 [44 S. Ct. 53]):

    'But, as we have seen, good faith is not enough to constitute probable cause. That faith must be grounded on facts within knowledge of the Director General's agent, [267 U.S. 132, 162]   which in the judgment of the court would make his faith reasonable.'

See, also, Munn v. De Nemours, 3 Wash. C. C. 37, Fed. Cas. No. 9926.

In the light of these authorities, and what is shown by this record, it is clear the officers here had justification for the search and seizure. This is to say that the facts and circumstances within their knowledge and of which they had reasonably trustworthy information were sufficient in themselves to warrant a man of reasonable caution in the belief that intoxicating liquor was being transported in the automobile which they stopped and searched.

Counsel finally argue that the defendants should be permitted to escape the effect of the conviction because the court refused on motion to deliver them the liquor when, as they say, the evidence adduced on the motion was much less than that shown on the trial, and did not show probable cause. The record does not make it clear what evidence was produced in support of or against the motion. But, apart from this, we think the point is without substance here. If the evidence given on the trial was sufficient, as we think it was, to sustain the introduction of the liquor as evidence, it is immaterial that there was an inadequacy of evidence when application was made for its return. A conviction on adequate and admissible evidence should not be set aside on such a ground. The whole matter was gone into at the trial, so no right of the defendants was infringed.

Counsel for the government contend that Kiro, the defendant who did not own the automobile, could not complain of the violation of the Fourth Amendment in the use of the liquor as evidence against him, whatever the view taken as to Carroll's rights. Our conclusion as to the whole case makes it unnecessary for us to discuss this aspect of it.

The judgment is affirmed. [267 U.S. 132, 163]   Mr. Justice McKENNA, before his retirement, concurred in this opinion.

The separate opinion of Mr. Justice McREYNOLDS.

1. The damnable character of the 'bootlegger's' business should not close our eyes to the mischief which will surely follow any attempt to destroy it by unwarranted methods. 'To press forward to a great principle by breaking through every other great principle that stands in the way of its establishment; ... in short, to procure an eminent good by means that are unlawful, is as little consonant to private morality as to public justice.' Sir William Scott, The Le Louis, 2 Dodson, 210, 257.

While quietly driving an ordinary automobile along a much frequented public road, plaintiffs in error were arrested by federal officers without a warrant and upon mere suspicion-ill-founded, as I think. The officers then searched the machine and discovered carefully secreted whisky, which was seized and thereafter used as evidence against plaintiffs in error when on trial for transporting intoxicating liquor contrary to the Volstead Act. 41 Stat. 305, c. 85. They maintain that both arrest and seizure were unlawful and that use of the liquor as evidence violated their constitutional rights.

This is not a proceeding to forfeit seized goods; nor is it an action against the seizing officer for a tort. Cases like the following are not controlling: Crowell v. McFadon. 8 Cranch, 94, 98; United States v. 1960 Bags of Coffee, 8 Cranch, 398, 403, 405; Otis v. Watkins, 9 Cranch, 339; Gelston v. Hoyt, 3 Wheat. 246, 310, 318; Wood v. United States, 16 Pet. 342; Taylor v. United States, 3 How. 197, 205. They turned upon express provisions of applicable acts of Congress; they did not involve the point now presented and afford little, if any, assistance toward its proper solution. The Volstead Act does not, in terms, authorize arrest or seizure upon mere suspicion. [267 U.S. 132, 164]   Whether the officers are shielded from prosecution or action by Rev. Stat. 970, is not important. That section does not undertake to deprive the citizen of any constitutional right or to permit the use of evidence unlawfully obtained. It does, however, indicate the clear understanding of Congress that probable cause is not always enough to justify a seizure.

Nor are we now concerned with the question whether by apt words Congress might have authorized the arrest without a warrant. It has not attempted to do this. On the contrary, the whole history of the legislation indicates a fixed purpose not so to do. First and second violations are declared to be misdemeanors-nothing more-and Congress, of course, understood the rule concerning arrests for such offenses. Whether different penalties should have been prescribed or other provisions added is not for us to inquire; nor do difficulties attending enforcement give us power to supplement the legislation.

2. As the Volstead Act contains no definite grant of authority to arrest upon suspicion and without warrant for a first offense, we come to inquire whether such authority can be inferred from its provisions.

Unless the statute which creates a misdemeanor contains some clear provision to the contrary, suspicion that it is being violated will not justify an arrest. Criminal statutes must be strictly construed and applied, in harmony with rules of the common law. United States v. Harris, 177 U.S. 305, 310 , 20 S. Ct. 609. And the well-settled doctrine is that an arrest for a misdemeanor may not be made without a warrant unless the offense is committed in the officer's presence.

Kurtz v. Moffitt, 115 U.S. 487, 498 , 6 S. Ct. 148, 152 (29 L. Ed. 458):

    'By the common law of England, neither a civil officer nor a private citizen had the right without a warrant to make an arrest for a crime not committed in his presence, except in the case [267 U.S. 132, 165]   of felony, and then only for the purpose of bringing the offender before a civil magistrate.'

John Bad Elk v. United States, 177 U.S. 529, 534 , 20 S. Ct. 729, 731 ( 44 L. Ed. 874):

    'An officer, at common law, was not authorized to make an arrest without a warrant, for a mere misdemeanor not committed in his presence.'

Commonwealth v. Wright, 158 Mass. 149, 158, 33 N. E. 82, 85 (19 L. R. A. 206, 35 Am. St. Rep. 475):

    'It is suggested that the statutory misdemeanor of having in one's possession short lobsters with intent to sell them is a continuing offence, which is being committed while such possession continues, and that therefore an officer who sees any person in possession of such lobsters with intent to sell them can arrest such person without a warrant, as for a misdemeanor committed in his presence. We are of opinion, however, that for statutory misdemeanors of this kind, not amounting to a breach of the peace, there is no authority in an officer to arrest without a warrant, unless it is given by statute . ... The Legislature has often empowered officers to arrest without a warrant for similar offenses, which perhaps tends to show that, in its opinion, no such right exists at common law.'

Pinkerton v. Verberg, 78 Mich. 573, 584, 44 N. W. 579, 582 (7 L. R. A. 507, 18 Am. St. Rep. 473):

    'Any law which would place the keeping and safe-conduct of another in the hands of even a conservator of the peace, unless for some breach of the peace committed in his presence, or upon suspicion of felony, would be most oppressive and unjust, and destroy all the rights which our Constitution guarantees. These are rights which existed long before our Constitution, and we have taken just pride in their maintenance, making them a part of the fundamental law of the land.' 'If persons can be restrained of their liberty, and assaulted and imprisoned, under such circumstances, without complaint or warrant, then there is no limit to the power of a police officer.'

3. The Volstead Act contains no provision which annuls the accepted common-law rule or discloses definite intent [267 U.S. 132, 166]   to authorize arrests without warrant for misdemeanors not committed in the officer's presence.

To support the contrary view section 26 is relied upon.

    'When ... any officer of the law shall discover any person in the act of transporting in violation of the law, intoxicating liquors in any wagon, buggy, automobile, water or air craft, or other vehicle, it shall be his duty to seize any and all intoxicating liquors found therein being transported contrary to law. Whenever intoxicating liquors transported or possessed illegally shall be seized by an officer he shall take possession of the vehicle and team or automobile, boat, air or water craft, or any other conveyance, and shall arrest any person in charge thereof.'

Let it be observed that this section has no special application to automobiles; it includes any vehicle-buggy, wagon, boat, or air craft. Certainly, in a criminal statute, always to be strictly construed, the words 'shall discover ... in the act of transporting in violation of the law' cannot mean shall have reasonable cause to suspect or believe that such transportation is being carried on. To discover and to suspect are wholly different things. Since the beginning apt words have been used when Congress intended that arrests for misdemeanors or seizures might be made upon suspicion. It has studiously refrained from making a felony of the offense here charged; and it did not undertake by any apt words to enlarge the power to arrest. It was not ignorant of the established rule on the subject, and well understood how this could be abrogated, as plainly appears from statutes like the following:

    'An act to regulate the collection of duties on imports and tonnage,' approved March 2, 1789, 1 Stat. 627, 677, 678, c. 22; 'An act to provide more effectually for the collection of the duties imposed by law on goods, wares and merchandise imported [267 U.S. 132, 167]   into the United States, and on the tonnage of ships or vessels,' approved August 4, 1790, 1 Stat. 145, 170, c. 35; 'An act further to provide for the collection of duties on imports and tonnage,' approved March 3, 1815, 3 Stat. 231, 232, c. 94.

These and similar acts definitely empowered officers to seize upon suspicion and therein radically differ from the Volstead Act, which authorized no such thing.

    'An act supplemental to the National Prohibition Act,' approved November 23, 1921, 42 Stat. 222, 223, c. 134, provides:

    'That any officer, agent, or employee of the United States engaged in the enforcement of this act, or the National Prohibition Act, or any other law of the United States, who shall search any private dwelling as defined in the National Prohibition Act, and occupied as such dwelling, without a warrant directing such search, or who while so engaged shall without a search warrant maliciously and without reasonable cause search any other building or property, shall be guilty of a misdemeanor and upon conviction thereof shall be fined for a first offense not more than $1,000, and for a subsequent offense not more than $1,000 or imprisoned not more than one year, or both such fine and imprisonment.'

And it is argued that the words and history of this section indicate the intent of Congress to distinguish between the necessity for warrants in order to search private dwelling and the right to search automobiles without one. Evidently Congress regarded the searching of private dwellings as matter of much graver consequence than some other searches and distinguished between them by declaring the former criminal. But the connection between this distinction and the legality of plaintiffs in error's arrest is not apparent. Nor can I find reason for inquiring concerning the validity of the distinction under the Fourth Amendment. Of course, the distinction is [267 U.S. 132, 168]   valid, and so are some seizures. But what of it? The act made nothing legal which theretofore was unlawful, and to conclude that by declaring the unauthorized search of a private dwelling criminal Congress intended to remove ancient restrictions from other searches and from arrests as well, would seem impossible.

While the Fourth Amendment denounces only unreasonable seizures unreasonableness often depends upon the means adopted. Here the seizure followed an unlawful arrest, and therefore became itself unlawful-as plainly unlawful as the seizure within the home so vigorously denounced in Weeks v. United States, 232 U.S. 383, 391 , 392 S., 393, 34 S. Ct. 341, L. R. A. 1915B, 834, Ann. Cas. 1915C, 1177.

In Snyder v. United States, 285 F. 1, 2, the Court of Appeals, Fourth Circuit, rejected evidence obtained by an unwarranted arrest, and clearly announced some very wholesome doctrine:

    'That an officer may not make an arrest for a misdemeanor not committed in his presence, without a warrant, has been so frequently decided as not to require citation of authority. It is equally fundamental that a citizen may not be arrested on suspicion of having committed a misdemeanor and have his person searched by force, without a warrant of arrest. If, therefore, the arresting officer in this case had no other justification for the arrest than the mere suspicion that a bottle, only the neck of which he could see protruding from the pocket of defendant's coat, contained intoxicating liquor, then it would seem to follow without much question that the arrest and search, without first having secured a warrant, were illegal. And that his only justification was his suspicion is admitted by the evidence of the arresting officer himself. If the bottle had been empty or if it had contained any one of a dozen innoxious liquids, the act of the officer would, admittedly, have been an unlawful invasion of the personal liberty of the defendant. That it happened in this instance to contain whisky, we think, [267 U.S. 132, 169]   neither justifies the assault nor condemns the principle which makes such an act unlawful.'

The validity of the seizure under consideration depends on the legality of the arrest. This did not follow the seizure, but the reverse is true. Plaintiffs in error were first brought within the officers' power, and, while therein, the seizure took place. If an officer, upon mere suspicion of a misdemeanor, may stop one on the public highway, take articles away from him and thereafter use them as evidence to convict him of crime, what becomes of the Fourth and Fifth Amendments?

In Weeks v. United States, supra, through Mr. Justice Day, this court said:

    'The effect of the Fourth Amendment is to put the courts of the United States and federal officials, in the exercise of their power and authority, under limitations and restraints as to the exercise of such power and authority, and to forever secure the people, their persons, houses, papers and effects against all unreasonable searches and seizures under the guise of law. This protection reaches all alike, whether accused of crime or not, and the duty of giving to it force and effect is obligatory upon all entrusted under our federal system with the enforcement of the laws. The tendency of those who execute the criminal laws of the country to obtain conviction by means of unlawful seizures and enforced confessions, the latter often obtained after subjecting accused persons to unwarranted practices destructive of rights secured by the federal Constitution, should find no sanction in the judgments of the courts which are charged at all times with the support of the Constitution and to which people of all conditions have a right to appeal for the maintenance of such fundamental rights. ... The efforts of the courts and their officials to bring the guilty to punishment, praiseworthy as they are, are not to be aided by the sacrifice of those great principles established by years of endeavor and suffering which have [267 U.S. 132, 170]   resulted in their embodiment in the fundamental law of the land.'

Silverthorne Lumber Co. v. United States, 251 U.S. 385, 391 , 40 S. Ct. 182:

    'The proposition could not be presented more nakedly. It is that although of course its seizure was an outrage which the government now regrets, it may study the papers before it returns them, copy them, and then may use the knowledge that it has gained to call upon the owners in a more regular form to produce them; that the protection of the Constitution covers the physical possession but not any advantages that the government can gain over the object of its pursuit by doing the forbidden act. Weeks v. United States, 232 U.S. 383 , to be sure, had established that laying the papers directly before the grand jury was unwarranted, but it is taken to mean only that two steps are required instead of one. In our opinion such is not the law. It reduces the Fourth Amendment to a form of words. 232 U.S. 393 . The essence of a provision forbidling the acquisition of evidence in a certain way is that not merely evidence so acquired shall not be used before the court but that it shall not be used at all. Of course this does not mean that the facts thus obtained become sacred and inaccessible. If knowledge of them is gained from an independent source they may be proved like any others, but the knowledge gained by the government's own wrong cannot be used by it in the way proposed.'

Gouled v. United States, 255 U.S. 298 , 41 S. Ct. 261, and Amos v. United States, 255 U.S. 313 , 41 S. Ct. 266, distinctly point out that property procured by unlawful action of federal officers cannot be introduced as evidence.

The arrest of plaintiffs in error was unauthorized, illegal, and violated the guaranty of due process given by the Fifth Amendment. The liquor offered in evidence was obtained by the search which followed this arrest and was therefore obtained in violation of their constitutional [267 U.S. 132, 171]   rights. Articles found upon or in the control of one lawfully arrested may be used as evidence for certain purposes, but not at all when secured by the unlawful action of a federal officer.

4. The facts known by the officers who arrested plaintiffs in error were wholly insufficient to create a reasonable belief that they were transporting liquor contrary to law. These facts were detailed by Fred Cronenwett, chief prohibition officer. His entire testimony as given at the trial follows:

    'I am in charge of the federal prohibition department in this district. I am acquainted with these two respondents, and first saw them on September 29, 1921, in Mr. Scully's apartment on Oakes street, Grand Rapids. There were three of them that came to Mr. Scully's apartment, one by the name of Kruska, George Krio, and John Carroll. I was introduced to them under the name of Stafford, and told them I was working for the Michigan Chair Company, and wanted to buy three cases of whisky, and the price was agreed upon. After they thought I was all right, they said they would be back in half or three-quarters of an hour; that they had to go out to the east end of Grand Rapids to get this liquor. They went away and came back in a short time, and Mr. Kruska came upstairs and said they couldn't get it that night; that a fellow by the name of Irving, where they were going to get it, wasn't in, but they were going to deliver it the next day, about ten. They didn't deliver it the next day. I am not positive about the price. It seems to me it was around $130 a case. It might be $135. Both respondents took part in this conversation. When they came to Mr. Scully's apartment they had this same car. While it was dark and I wasn't able to get a good look at this car, later, on the 6th day of October, when I was out on the road with Mr. Scully, I was waiting on the highway while he went to Reed's Lake to get a light [267 U.S. 132, 172]   lunch, and they drove by, and I had their license number and the appearance of their car, and knowing the two boys, seeing them on the 29th day of September, I was satisfied when I seen the car on December 15th it was the same car I had seen on the 6th day of October. On the 6th day of October it was probably twenty minutes before Scully got back to where I was. I told him the Carroll boys had just gone toward Detroit and we were trying to catch up with them and see where they were going. We did catch up with them somewhere along by Ada, just before we got to Ada, and followed them to East Lansing. We gave up the chase at East Lansing.

    'On the 15th of December, when Peterson and Scully and I overhauled this car on the road, it was in the country, on Pike 16, the road leading between Grand Rapids and Detroit. When we passed the car we were going toward Ionia, or Detroit, and the Kiro and Carroll boys were coming towards Grand Rapids when Mr. Scully and I recognized them and said, 'There goes the Carroll brothers,' and we went on still further in the same direction we were going and turned around and went back to them-drove up to the side of them. Mr. Scully was driving the car; I was sitting in the front seat, and I stepped out on the running board and held out my hand and said, 'Carroll, stop that car,' and they did stop it. John Kiro was driving the car. After we got them stopped, we asked them to get out of the car, which they did. Carroll referred to me, and called me by the name of 'Fred,' just as soon as I got up to him. Raised up the back part of the roadster; didn't find any liquor there; then raised up the cushion; then I struck at the lazyback of the seat and it was hard. I then started to open it up, and I did tear the cushion some, and Carroll said, 'Don't tear the cushion; we have only got six cases in there;' and I took out two bottles and found out it was liquor; satisfied it was liquor. Mr. Peterson and a fellow by the [267 U.S. 132, 173]   name of Gerald Donker came in with the two Carroll boys and the liquor and the car to Grand Rapids. They brought the two defendants and the car and the liquor to Grand Rapids. I and the other men besides Peterson stayed out on the road, looking for other cars that we had information were coming in. There was conversation between me and Carroll before Peterson started for town with the defendants. Mr. Carroll said, 'Take the liquor, and give us one more chance, and I will make it right with you.' At the same time he reached in one of his trousers pockets and pulled out money; the amount of it I don't know. I wouldn't say it was a whole lot. I saw a $10 bill and there was some other bills; I don't know how much there was; it wasn't a large amount.

    'As I understand, Mr. Hanley helped carry the liquor from the car. On the next day afterwards, we put this liquor in boxes, steel boxes, and left it in the marshal's vault, and it is still there now. Mr. Hanley and Chief Deputy Johnson, some of the agents and myself were there. Mr. Peterson was there the next day that the labels were signed by the different officers; those two bottles, Exhibits A and B.

    'Q. Now, those two bottles, Exhibits A and B, were those the two bottles you took out of the car out there, or were those two bottles taken out of the liquor after it got up here? A. We didn't label them out on the road; simply found it was liquor and sent it in; and this liquor was in Mr. Hanley's custody that evening and during the middle of the next day when we checked it over to see the amount of liquor that was there. Mr. Johnson and I sealed the bottles, and Mr. Johnson's name is on the label that goes over the bottle with mine, and this liquor was taken out of the case to-day. It was taken out for the purpose of analyzation. The others were not broken until to- day. [267 U.S. 132, 174]   'Q. And are you able to tell us, from the label and from the bottles, whether it is part of the same liquor taken out of that car? A. It has the appearance of it; yes, sir. Those are the bottles that were in there that Mr. Hanley said was gotten out of the Carroll car.'

Cross-examination:

    'I think I was the first one to get back to the Carroll car after it was stopped. I had a gun in my pocket; I didn't present it. I was the first one to the car and raised up the back of the car, but the others were there shortly afterward. We assembled right around the car immediately.

    'Q. And whatever examination and what investigation you made you went right ahead and did it in your own way? A. Yes, sir.

    'Q. And took possession of it, arrested them, and brought them in? A. Yes, sir.

    'Q. And at that time, of course, you had no search warrant? A. No, sir. We had no knowledge that this car was coming through at that particular time.'

Redirect examination:

    'The lazyback was awfully hard when I struck it with my fist. It was harder than upholstery ordinarily is in those backs; a great deal harder. It was practically solid. Sixty-nine quarts of whisky in one lazyback.'

The negotiation concerning three cases of whisky on September 29th was the only circumstance which could have subjected plaintiffs in error to any reasonable suspicion. No whisky was delivered, and it is not certain that they ever intended to deliver any. The arrest came 2 1/2 months after the negotiation. Every act in the meantime is consistent with complete innocence. Has it come about that merely because a man once agreed to deliver whisky, but did not, he may be arrested whenever thereafter he ventures to drive an automobile on the road to Detroit!

5. When Congress has intended that seizures or arrests might be made upon suspicion it has been careful to say [267 U.S. 132, 175]   so. The history and terms of the Volstead Act are not consistent with the suggestion that it was the purpose of Congress to grant the power here claimed for enforcement officers. The facts known when the arrest occurred were wholly insufficient to engender reasonable belief that plaintiffs in error were committing a misdemeanor, and the legality of the arrest cannot be supported by facts ascertained through the search which followed.

To me it seems clear enough that the judgment should be reversed.

I am authorized to say that Mr. Justice SUTHERLAND concurs in this opinion.

~~~~~~~~~~~

U.S. Supreme Court

HENRY v. UNITED STATES, 361 U.S. 98 (1959)

361 U.S. 98

HENRY v. UNITED STATES.

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SEVENTH CIRCUIT.

No. 17.

Argued October 20-21, 1959.

Decided November 23, 1959.

Without a warrant for search or arrest, federal officers who were investigating a theft from an interstate shipment of whiskey twice observed cartons being placed in a motorcar in a residential district, followed and stopped the car, arrested petitioner and another man who were in it, searched the car, and found and seized cartons containing radios stolen from an interstate shipment.   At petitioner's trial for unlawfully possessing radios stolen from an interstate shipment, his timely motion to suppress the evidence so seized was overruled and he was convicted.   Held: On the record in this case, the officers did not have probable cause for the arrest when they stopped the car; the search was illegal; the articles seized were not admissible in evidence; and the conviction is reversed. Pp. 98-104.

259 F.2d 725, reversed.

Edward J. Calihan, Jr. argued the cause and filed a brief for petitioner.

Kirby W. Patterson argued the cause for the United States. With him on the brief were Solicitor General Rankin, Assistant Attorney General Wilkey and Beatrice Rosenberg.

MR. JUSTICE DOUGLAS delivered the opinion of the Court.

Petitioner stands convicted of unlawfully possessing three cartons of radios valued at more than $100 which had been stolen from an interstate shipment. See 18 U.S.C. 659.   The issue in the case is whether there was probable cause for the arrest leading to the search that produced the evidence on which the conviction rests.   A timely motion to suppress the evidence was made by [361 U.S. 98, 99]   petitioner and overruled by the District Court; and the judgment of conviction was affirmed by the Court of Appeals on a divided vote. 259 F.2d 725.   The case is here on a petition for a writ of certiorari, 359 U.S. 904 .

There was a theft from an interstate shipment of whisky at a terminal in Chicago.   The next day two FBI agents were in the neighborhood investigating it.   They saw petitioner and one Pierotti walk across a street from a tavern and get into an automobile. T he agents had been given, by the employer of Pierotti, information of an undisclosed nature "concerning the implication of the defendant Pierotti with interstate shipments."   But, so far as the record shows, he never went so far as to tell the agents he suspected Pierotti of any such thefts.   The agents followed the car and saw it enter an alley and stop.   Petitioner got out of the car, entered a gangway leading to residential premises and returned in a few minutes with some cartons.   He placed them in the car and he and Pierotti drove off.   The agents were unable to follow the car.   But later they found it parked at the same place near the tavern.   Shortly they saw petitioner and Pierotti leave the tavern, get into the car, and drive off.   The car stopped in the same alley as before; petitioner entered the same gangway and returned with more cartons.   The agents observed this transaction from a distance of some 300 feet and could not determine the size, number or contents of the cartons.   As the car drove off the agents followed it and finally, when they met it, waved it to a stop.   As he got out of the car, petitioner was heard to say, "Hold it; it is the G's."   This was followed by, "Tell him he [you] just picked me up."   The agents searched the car, placed the cartons (which bore the name "Admiral" and were addressed to an out-of-state company) in their car, took the merchandise and petitioner and Pierotti to their office and held them for about two hours when the agents learned that the cartons contained [361 U.S. 98, 100]   stolen radios.   They then placed the men under formal arrest.

The statutory authority of FBI officers and agents to make felony arrests without a warrant is restricted to offenses committed "in their presence" or to instances where they have "reasonable grounds to believe that the person to be arrested has committed or is committing" a felony. 18 U.S.C. 3052.   The statute states the constitutional standard, for it is the command of the Fourth Amendment that no warrants for either searches or arrests shall issue except "upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized."

The requirement of probable cause has roots that are deep in our history.   The general warrant, 1 in which the name of the person to be arrested was left blank, and the writs of assistance, against which James Otis inveighed, 2 both perpetuated the oppressive practice of allowing the police to arrest and search on suspicion.   Police control took the place of judicial control, since no showing of "probable cause" before a magistrate was required.   The Virginia Declaration of Rights, adopted June 12, 1776, rebelled against that practice:

          "That general warrants, whereby any officer or messenger may be commanded to search suspected places without evidence of a fact committed, or to seize any person or persons not named, or whose offence is not particularly described and supported by evidence, are grievous and oppressive, and ought not to be granted." [361 U.S. 98, 101]

The Maryland Declaration of Rights (1776), Art. XXIII, was equally emphatic:

          "That all warrants, without oath or affirmation, to search suspected places, or to seize any person or property, are grievous and oppressive; and all general warrants - to search suspected places, or to apprehend suspected persons, without naming or describing the place, or the person in special - are illegal, and ought not to be granted."

And see North Carolina Declaration of Rights (1776), Art. XI; Pennsylvania Constitution (1776), Art. X; Massachusetts Constitution (1780), Pt. I, Art. XIV.

That philosophy later was reflected in the Fourth Amendment.   And as the early American decisions both before 3 and immediately after 4 its adoption show, common rumor or report, suspicion, or even "strong reason to suspect" 5 was not adequate to support a warrant for arrest. And that principle has survived to this day. See United States v. Di Re, 332 U.S. 581, 593 -595; Johnson v. United States, 333 U.S. 10, 13 -15; Giordenello v. United States, 357 U.S. 480, 486.   Its high water was Johnson v. United States, supra, where the smell of opium coming from a closed room was not enough to support an arrest and search without a warrant.   It was against this background that two scholars recently wrote, "Arrest on mere suspicion collides violently with the basic human right of liberty." 6   [361 U.S. 98, 102]

Evidence required to establish guilt is not necessary. Brinegar v. United States, 338 U.S. 160 ; Draper v. United States, 358 U.S. 307.   On the other hand, good faith on the part of the arresting officers is not enough.   Probable cause exists if the facts and circumstances known to the officer warrant a prudent man in believing that the offense has been committed. Stacey v. Emery, 97 U.S. 642, 645.   And see Director General v. Kastenbaum, 263 U.S. 25, 28 ; United States v. Di Re, supra, at 592; Giordenello v. United States, supra, at 486.   It is important, we think, that this requirement be strictly enforced, for the standard set by the Constitution protects both the officer and the citizen.   If the officer acts with probable cause, he is protected even though it turns out that the citizen is innocent.   Carroll v. United States, 267 U.S. 132, 156 .   And while a search without a warrant is, within limits, permissible if incident to a lawful arrest, if an arrest without a warrant is to support an incidental search, it must be made with probable cause. Carroll v. United States, supra, at 155-156.   This immunity of officers cannot fairly be enlarged without jeopardizing the privacy or security of the citizen. We turn then to the question whether prudent men in the shoes of these officers (Brinegar v. United States, supra, at 175) would have seen enough to permit them to believe that petitioner was violating or had violated the law. We think not. [361 U.S. 98, 103]

The prosecution conceded below, and adheres to the concession here, 7 that the arrest took place when the federal agents stopped the car.   That is our view on the facts of this particular case.   When the officers interrupted the two men and restricted their liberty of movement, the arrest, for purposes of this case, was complete.   It is, therefore, necessary to determine whether at or before that time they had reasonable cause to believe that a crime had been committed.   The fact that afterwards contraband was discovered is not enough.   An arrest is not justified by what the subsequent search discloses, as Johnson v. United States, supra, holds.

It is true that a federal crime had been committed at a terminal in the neighborhood, whisky having been stolen from an interstate shipment.   Petitioner's friend, Pierotti, had been suspected of some implication in some interstate shipments, as we have said.   But as this record stands, what those shipments were and the manner in which he was implicated remain unexplained and undefined.   The rumor about him is therefore practically meaningless.   On the record there was far from enough evidence against him to justify a magistrate in issuing a warrant.   So far as the record shows, petitioner had not even been suspected of criminal activity prior to this time.   Riding in the car, stopping in an alley, picking up packages, driving away - these were all acts that were outwardly innocent.   Their movements in the car had no mark of fleeing men or men acting furtively.   The case might be different if the packages had been taken from a terminal or from an interstate trucking platform.   But they were not.   As we have said, the alley where the packages were picked up was in a residential section. [361 U.S. 98, 104]   The fact that packages have been stolen does not make every man who carries a package subject to arrest nor the package subject to seizure.   The police must have reasonable grounds to believe that the particular package carried by the citizen is contraband.   Its shape and design might at times be adequate.   The weight of it and the manner in which it is carried might at times be enough.   But there was nothing to indicate that the cartons here in issue probably contained liquor.   The fact that they contained other contraband appeared only some hours after the arrest.   What transpired at or after the time the car was stopped by the officers is, as we have said, irrelevant to the narrow issue before us.   To repeat, an arrest is not justified by what the subsequent search discloses.   Under our system suspicion is not enough for an officer to lay hands on a citizen.   It is better, so the Fourth Amendment teaches, that the guilty sometimes go free than that citizens be subject to easy arrest.

The fact that the suspects were in an automobile is not enough.   Carroll v. United States, supra, liberalized the rule governing searches when a moving vehicle is involved.   But that decision merely relaxed the requirements for a warrant on grounds of practicality.   It did not dispense with the need for probable cause.

      Reversed.

MR. JUSTICE BLACK concurs in the result.

Footnotes
[ Footnote 1 ] Declared illegal by the House of Commons in 1766. 16 Hansard, Parl. Hist. Eng. 207.

[ Footnote 2 ] Quincy's Mass. Rep. 1761-1772, Appendix, p. 469.

[ Footnote 3 ] Frisbie v. Butler, Kirby's Rep. (Conn.) 1785-1788, p. 213.

[ Footnote 4 ] Conner v. Commonwealth, 3 Binn (Pa.) 38; Grumon v. Raymond, 1 Conn. 40; Commonwealth v. Dana, 2 Met. (Mass.) 329.

[ Footnote 5 ] Conner v. Commonwealth, supra, note 4, at 43.

[ Footnote 6 ] Hogan and Snee, The McNabb-Mallory Rule: Its Rise, Rationale and Rescue, 47 Geo. L. J. 1, 22. Uniform Crime Reports for the United States, compiled by the Federal Bureau of Investigation (Vol. XXVIII, No. 1, Semiannual [361 U.S. 98, 102]   Bull., 1957), pp. 64, 65, shows 1956 arrest statistics for 1,025 cities in the United States, including 26 cities over 250,000 population and 458 cities under 10,000 population.   The report states that 111,274 were arrested on suspicion (but not in connection with any specific offense) and subsequently released without prosecution.   This was at the rate of 280.4 per 100,000 inhabitants.   The grand total of persons arrested - both for a specific offense (but excluding traffic offenses) and on suspicion alone - and released without being held for prosecution was 264,601.   This was at the rate of 666.7 per 100,000 inhabitants.

[ Footnote 7 ] An alternative theory that the arrest took place at a subsequent time was discussed by the Government only to make clear that it would press that position on the facts of another case now pending here, No. 52, Rios v. United States.

MR. JUSTICE CLARK, whom THE CHIEF JUSTICE joins, dissenting.

The Court decides this case on the narrow ground that the arrest took place at the moment the Federal Bureau of Investigation agents stopped the car in which petitioner was riding and at that time probable cause for it did not exist.   While the Government, unnecessarily it seems to me, conceded that the arrest was made at the [361 U.S. 98, 105]   time the car was stopped, this Court is not bound by the Government's mistakes. *

The record shows beyond dispute that the agents had received information from co-defendant Pierotti's employer implicating Pierotti with interstate shipments.   The agents began a surveillance of petitioner and Pierotti after recognizing them as they came out of a bar.   Later the agents observed them loading cartons into an automobile from a gangway up an alley in Chicago.   The agents had been trailing them, and after it appeared that they had delivered the first load of cartons, the suspects returned to the same platform by a circuitous route through streets and alleys.   The agents then saw petitioner load another set of cartons into the car and drive off with the same.   A few minutes later the agents stopped the car, alighted from their own car, and approached the petitioner.   As they did so, petitioner was overheard to say: "Hold it; it is the G's," and "Tell him he [you] just picked me up."   Since the agents had actually seen the two suspects together for several hours, it was apparent to them that the statement was untrue. Upon being questioned, the defendants stated that they had borrowed the car from a friend. During the questioning and after petitioner had stepped out of the car one of the agents happened to look through the door of the car which petitioner had left open and saw three cartons stacked up inside which resembled those petitioner had just loaded into the car from the gangway.   The agent saw that the cartons bore Admiral shipping labels and were addressed to a company in Cincinnati, Ohio.   Upon further questioning, the agent was told that the cartons [361 U.S. 98, 106]   were in the car when the defendants borrowed it.   Knowing this to be untrue, the agents then searched the car, arrested petitioner and his companion, and seized the cartons.

The Court seems to say that the mere stopping of the car amounted to an arrest of the petitioner.   I cannot agree.   The suspicious activities of the petitioner during the somewhat prolonged surveillance by the agents warranted the stopping of the car.   The sighting of the cartons with their interstate labels in the car gave the agents reasonable ground to believe that a crime was in the course of its commission in their very presence.   The search of the car and the subsequent arrest were therefore lawful and the motion to suppress was properly overruled.

In my view, the time at which the agents were required to have reasonable grounds to believe that petitioner was committing a felony was when they began the search of the automobile, which was after they had seen the cartons with interstate labels in the car.   The earlier events certainly disclosed ample grounds to justify the following of the car, the subsequent stopping thereof, and the questioning of petitioner by the agents.   This interrogation, together with the sighting of the cartons and the labels, gave the agents indisputable probable cause for the search and arrest.

When an investigation proceeds to the point where an agent has reasonable grounds to believe that an offense is being committed in his presence, he is obligated to proceed to make such searches, seizures, and arrests as the circumstances require.   It is only by such alertness that crime is discovered, interrupted, prevented, and punished.   We should not place additional burdens on law enforcement agencies.

I would affirm the judgments on the rationale of Brinegar v. United States, 338 U.S. 160 (1949), and Carroll v. United States, 267 U.S. 132 (1925).

[ Footnote * ] It may be that the Government is doing some wishful thinking in regard to the relaxation of the standards incident to the "probable cause" requirement by making this a test case.   We should not lend ourselves to such indulgence. [361 U.S. 98, 107]

~~~~~~~~~~

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT

No. 02-60428

UNITED STATES OF AMERICA,
Plaintiff – Appellee,

versus

DONALD KEITH BURTON,

Defendant-Appellant.

Appeal from the United States District Court for the Southern District of Mississippi

March 12, 2003

Before BENAVIDES, STEWART, and CLEMENT, Circuit Judges.

CARL E. STEWART, Circuit Judge:

A jury found Donald Keith Burton (“Burton”) guilty of carjacking, in violation of 18 U.S.C. § 2119 (count one), possession of a firearm by a convicted felon, in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2) (count two), and brandishing a firearm during a crime of violence, in violation of 18 U.S.C. § 924(c)(1)(A)(ii) (count three). After he was sentenced, Burton timely appealed claiming that there was insufficient evidence to sustain his convictions as charged.

We agree.

For the reasons that follow, we REVERSE all three of Burton’s convictions and VACATE his sentence.

1. Standard of Review

We review an insufficiency of the evidence claim in the light most favorable to the Government. United States v. Quiroz-Hernandez, 48 F.3d 858, 865 (5th Cir. 1995). Because Burton failed to renew his motion for judgment of acquittal at the close of the trial, we review his claim to determine “whether there was a manifest miscarriage of justice.” United States v Galvan, 949 F.2d 777, 783 (5th Cir. 1991). “That occurs only where ‘the record is devoid of evidence pointing to guilt or contains evidence on a key element of the offense [that is] so tenuous that a conviction would be shocking.’ ” United States v. McIntosh, 280 F.3d 479, 483 (5th Cir. 2002) (quoting United States v. Cathey, 259 F.3d 365, 368 (5th Cir. 2001) (internal citations omitted; brackets in original)).

2. Analysis

Burton challenges his conviction on counts one and two asserting that the Government failed to prove a nexus to interstate commerce, an essential element of both crimes. Specifically, Burton argues that the Government failed to prove that the vehicle involved in the carjacking, and that the firearm he possessed had been transported in interstate commerce. In addition, Burton challenges his conviction on count three, brandishing a firearm during a crime of violence, because the Government failed to prove an essential element of the predicate crime of violence – the carjacking.

The Government concedes that it failed to prove that the firearm involved traveled in interstate commerce and agrees that Burton's conviction should be set aside as to count two. Thus, the only issue before us is whether the evidence is sufficient to support Burton's convictions on counts one and three.

Burton argues that there was insufficient evidence to support his carjacking conviction because the Government failed to offer evidence that the vehicle involved, a Nissan Maxima, traveled in interstate commerce. The Government asserts that although it failed to offer evidence of interstate travel, it was within the "common knowledge" of the jury that no Nissan Maximas were manufactured in Mississippi prior to the date of the carjacking. The Government offers only speculation to support this contention.

We have acknowledged that juries can use common knowledge when considering evidence. See United States v. Fores-Chapa, 48 F.3d 156, 161 (5th Cir. 1995). Nonetheless, because the Government’s evidence was too attenuated to find the Defendant convicted as charged, wedetermined that “but for the government's misconduct in [the] trial Appellant would never have been convicted,” and reversed the conviction. 48 F.3d at 163. Similar to Flores-Chapa, in the present case, but for the Government’s acknowledged oversight in this trial, Burton would never have been convicted. See id. The evidence here is not merely too attenuated to find Burton convicted as charged, but rather, it is worse -- there is a total absence of evidence to support the interstate commerce element. The Government failed to make a persuasive showing that the presence or absence of a Nissan manufacturer in Mississippi was a matter of common knowledge of jurors in Mississippi. Because the Government presented no evidence whatsoever that the Nissan traveled in interstate commerce, a key element of the crime, we conclude that Burton’s conviction for count one amounts to a “manifest miscarriage of justice.”

As there is insufficient evidence to sustain Burton’s conviction of carjacking, Burton’s conviction for brandishing a firearm during a crime of violence, as alleged in count three of his indictment must necessarily be reversed for failing to prove the predicate crime of violence, namely carjacking.

1. Conclusion

Burton’s convictions for carjacking, in violation of 18 U.S.C. § 2119 (count one), possession of a firearm by a convicted felon, in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2) (count two), and brandishing a firearm during a crime of violence, in violation of 18 U.S.C. § 924(c)(1)(A)(ii) (count three) are REVERSED and Burton’s corresponding sentences are VACATED.

Accordingly, we REMAND to the district court for proceedings consistent with this opinion.

REVERSE, VACATE, and REMAND.

~~~~~~~~~~~~

TRAFFIC = COMMERCE = BUSINESS
TRAFFIC STOPS ARE FOR COMMERCIAL RULES VIOLATIONS
THE PLAINTIFF NEVER PROVES THE COMMERCE ELEMENT
THE COP NEVER "HAD TO" STOP THE MOTORIST IN THE FIRST PLACE BUT EVERYONE PRESUMES THEY HAVE TO
NO THEY DON'T! YOU'VE JUST SEEN THE UNASSAILABLE MATERIAL EVIDENCE!

GOVERNMENT = COMPANY. The COMPANY named United States is incompetent to give what it does not have. No COMPANY has rights. Things and legal entities (corporations) have no rights, just granted privileges. Only sentient beings have rights. A government is a product of sentient beings agreeing to work together to make a building for a company and staff it with employees. The employees do not order or tell their employer what to do. They were hired to protect the rights the people they serve were born with that are secured by both State and federal constitutions. Those documents give the people nothing. Those documents apply to State and federal government employees. Those documents limits and restricts what the employees do while on the job and off. All government employees are to swear an oath to not violate the Constitution, which includes both State and federal. A violation of the Constitution is adverse to the People's security and welfare interests, among others, that are secured by those documents. The documents inform the employees what conduct is permitted and prohibited, and the laws made by the State legislatures provides rules for identifying civil and criminal misbehavior, and processing either a civil or criminal grievance. The employees who work at company created by the people that they named State of California, have no authority to deny, absent due process of law, the rights of their employers, the People of the state who created the government company to manage certain and specific issues most important to the People.