Customer Co. v. City of Sacramento, No. S035410

• Court: United States State Supreme Court (California)
• Writing for the Court: GEORGE; LUCAS; KENNARD; BAXTER
• Citation: 895 P.2d 900,41 Cal.Rptr.2d 658,10 Cal.4th 368
• Parties: , 895 P.2d 900 CUSTOMER COMPANY, Plaintiff and Appellant, v. CITY OF SACRAMENTO et al., Defendants and Respondents.
• Docket Number: No. S035410
• Decision Date: 12 June 1995

Page 658

41 Cal.Rptr.2d 658 10 Cal.4th 368, 895 P.2d 900 CUSTOMER COMPANY, Plaintiff and Appellant,
v.
CITY OF SACRAMENTO et al., Defendants and Respondents. No. S035410. Supreme Court of California,
In Bank. June 12, 1995.

Rehearing Denied July 13, 1995.

Page 659

[10 Cal.4th 370] [895 P.2d 901] Aiken, Kramer & Cummings, Fred V. Cummings, Matthew F. Graham, Suzanne Wyatt and George E. Paras, Oakland, for Plaintiff and Appellant.

Ronald A. Zumbrun, James S. Burling and Alexander Dushku, Sacramento, as Amici Curiae on behalf of Plaintiff and Appellant.

Sharon Siedorf Cardenas, City Attorney, William L. Owen, Acting City Attorney, Richard F. Antoine, Deputy City Attorney, Sacramento, Edson & LaPlante, [10 Cal.4th 371] John M. LaPlante, Sacramento, Bradley E. Neunzig, Porter, Scott, Weiberg & Delehant, Sacramento, and Stephen E. Horan, Sacramento, for Defendants and Respondents.

Page 660

Bertrand, Fox & Elliot and Gregory M. Fox, San Francisco, as Amici Curiae on behalf of Defendants and Respondents.

GEORGE, Justice.

A felony suspect, reputed to be armed and dangerous, took refuge in a store and refused to surrender. In the course of apprehending the suspect, the police fired tear gas into the store, causing extensive property damage. The issue we address is whether the owner of the store may bring an action for inverse condemnation against the public entities that employed the law enforcement officers, on the theory that the damage caused by the officers constituted a taking or damaging of private property for public use within the meaning of the "just compensation" clause of the California Constitution. (Cal. Const., art. I, § 19.)

For the reasons that follow, we hold that an action for inverse condemnation does not lie in the present case to recover damages caused by the efforts of law enforcement officers to enforce the criminal laws. As we shall explain, under the circumstances presented here the public entities involved may be held liable, if at all, only in a tort action filed pursuant to the Tort Claims Act. (Gov.Code, § 810, et seq.)

I

In October 1987, Customer Company (Customer) sued the City of Sacramento (City) and Sacramento County (County), alleging numerous causes of action, including inverse [895 P.2d 902] condemnation and negligence. Customer alleged that on June 22, 1987, police officers and deputy sheriffs "caused a criminal suspect to hide" in Rogers Food and Liquor store, which is owned and operated by Customer, and caused extensive damage to the store and its contents in their efforts to capture the suspect.

In a series of rulings, the superior court granted judgment on the pleadings in favor of City and County. As to the negligence cause of action, the superior court ruled that City and County were immune from liability pursuant to Government Code section 820.2, which provides immunity to public entities for their employees' acts and omissions resulting from "the exercise of ... discretion" by the employee. As to the inverse condemnation cause of action, the court ruled that, as a matter of law, "the action[ ] of [10 Cal.4th 372] the police ... was a proper exercise of the police power to protect the public health, safety and welfare." Customer appealed, and the Court of Appeal affirmed the judgment. Customer sought, and was granted, review in this court solely on the inverse condemnation issue.

Following oral argument, we requested supplemental briefs addressing the issue whether Customer would be entitled to relief under the Tort Claims Act (Gov.Code, § 810 et seq.). In its supplemental brief, Customer expressly "waived the right to relief under the Tort Claims Act."

II

As acknowledged by Customer in its opening brief, the facts of the present case are undisputed. Christopher Nash was wanted for a series of armed robberies. On June 19, 1987, police officers spotted Nash, who was reputed to be armed and "extremely dangerous," driving a stolen automobile with "switched" license plates. Confidential informants had related that Nash "always" carried a .380-caliber semiautomatic pistol and had said "he wouldn't be taken alive, and he would shoot it out with police officers." Nash apparently became aware of the officers' presence, accelerated and began making numerous lane changes, eventually eluding the officers.

At approximately 8 a.m. on June 22, 1987, Deputy Sheriff Larry Chapman, dressed in plain clothes and driving an unmarked vehicle, was conducting a surveillance of Nash's home when Nash and his girlfriend, Violet Nelson, emerged from the residence, entered the stolen automobile, and drove off. Deputy Chapman followed and requested assistance, intending to stop the vehicle once other officers arrived to assist him. He did not inform the dispatcher that this was a covert operation. Before such assistance arrived, Nash drove into the parking lot of Rogers Food and Liquor store, parked the vehicle, and entered the store with Nelson. Deputy Chapman radioed a message that Nash had entered the store. The deputy then parked on the street and waited for assistance to arrive, intending to arrest Nash when he left the store.

Page 661

Shortly after 8:30 a.m., four City police officers in plain clothes and driving unmarked vehicles joined the surveillance of Nash's vehicle in the parking lot of Customer's store. But when a marked police vehicle and a marked sheriff's vehicle with its emergency lights flashing drove into the parking lot in response to the call for assistance, the officers concluded Nash must have become aware of their presence and, fearing he might escape through a rear exit, surrounded the building. Nash did attempt to flee through a rear exit but, upon seeing law enforcement officers, reentered the store.

[10 Cal.4th 373] Using the public address system in one of the police vehicles, the officers ordered everyone to vacate the store. The store clerk, Felipe Valverde, and Nash's girlfriend, Nelson, left the store, but Nash did not. Valverde stated that no one except Nash was inside the store and provided information about the premises, including the number and locations of the exits to the building and the telephone number inside the store. Nelson was arrested and confirmed that Nash was inside the store. She stated there were two firearms in his vehicle but asserted he was unarmed. A .380-caliber automatic handgun and a shotgun with the stock sawed off later were seized from the stolen vehicle Nash had been driving. The police remained concerned that Nash might be armed, despite[895 P.2d 903] Nelson's statement to the contrary. As one officer stated: "You can't believe the [veracity] or the truthfulness of any person under those conditions, especially if it's the girlfriend talking to her boy friend. Of course she's going to say he's unarmed."

Additional law enforcement personnel were called to the scene. The police stopped traffic and evacuated the area around the store so that, if there were gunfire, no bystanders would be injured. Ambulances and fire department units were summoned and asked to stand by.

Several more requests for Nash to surrender were made, using the police vehicle's public address system. Nash made no response and was not visible inside the store. The police department's special weapons and tactics (SWAT) team was summoned.

Police officers continued their efforts to convince Nash to surrender. A trained negotiator attempted to telephone Nash and used a loud hailer, or megaphone, to direct Nash to answer the telephone. But Nash did not do so, and the telephone inside the store later ceased operating. The negotiator then attempted for an hour or two to communicate with Nash using a loud hailer, but Nash did not respond.

The store clerk stated there was a listening device inside the store, which revealed sounds of movement inside the premises. Gas masks were distributed to the officers surrounding the building, and the store's utilities were shut off.

Shortly after 11 a.m., Lieutenant George Mijares determined that further efforts at negotiation were futile and instructed the SWAT team to employ tear gas. Lieutenant Mijares explained: "I saw no need to wait any longer at that point. We had about thirty or forty police personnel tied up in this operation. Major traffic jam in the area. We had the people out of the store, and I saw absolutely no benefit in waiting any longer because every effort [10 Cal.4th 374] we had made had no beneficial result. There was no response whatsoever from the store.... It was plain to me that he was not going to communicate with us...." Lieutenant Mijares estimated that "maybe 70 percent of the day shift" was present at the scene. He explained as follows his reasons for ordering the use of tear gas: "What we wanted to do was deploy tear gas, which would force Nash to come out. He would come out, be confused, his senses would be impaired. The information [we had was that] he's armed and dangerous, so if he was going to be involved in a fire fight, he would be most inaccurate and generally the suspect[s] come out even without their weapons after being [a]ffected by tear gas. So it was the safest way to do it for everybody concerned." Assistant chief of police for the City of Sacramento, Jerry Finney, further noted: "Even if tear gas should not induce voluntary surrender of an armed suspect, then it reduces the suspect's ability to offer armed resistance to SWAT officers as they enter the building or premises."

Page 662

Lieutenant Matthew Powers, who at the time of the present incident was a sergeant and one of the City's two SWAT team leaders, described as follows the reasons for the decision to employ tear gas: "a) Nash was believed to be armed and also using 'crank', which is a street name for amphetamines. Suspects using crank often exhibit paranoid, erratic behavior. [p] b) Waiting Nash out did not appear a viable alternative, because he was barricaded in a convenience store containing extensive...