Escamilla v. City of Santa Ana, CV 83-1887-ER (Kx).

• Decision Date: 06 March 1985
• Docket Number: No. CV 83-1887-ER (Kx).,CV 83-1887-ER (Kx).
• Citation: 606 F. Supp. 928
• Parties: Daniel ESCAMILLA, Sandra Escamilla and each of the minors, Cynthia Escamilla, Nedra Escamilla, Jessica Ramirez and Benjamin Calindo, by Daniel Escamilla, their Guardian ad Litem, Plaintiffs, v. CITY OF SANTA ANA, a Municipal corporation, Raymond C. Davis, in his individual and official capacity as Chief of Police of Santa Ana; Officers John D. Garcia and R. Huerth, in their individual and official capacities as sworn Santa Ana Police Officers; Jesus Jimenez; La Posada Mexican Restaurant of Santa Ana; Jakob Mueller and Irmengard Mueller, in their official capacities as corporate officers, Defendants.
• Court: U.S. District Court — Central District of California

606 F. Supp. 928

Daniel ESCAMILLA, Sandra Escamilla and each of the minors, Cynthia Escamilla, Nedra Escamilla, Jessica Ramirez and Benjamin Calindo, by Daniel Escamilla, their Guardian ad Litem, Plaintiffs, v. CITY OF SANTA ANA, a Municipal corporation, Raymond C. Davis, in his individual and official capacity as Chief of Police of Santa Ana; Officers John D. Garcia and R. Huerth, in their individual and official capacities as sworn Santa Ana Police Officers; Jesus Jimenez; La Posada Mexican Restaurant of Santa Ana; Jakob Mueller and Irmengard Mueller, in their official capacities as corporate officers, Defendants.

No. CV 83-1887-ER (Kx).

United States District Court, C.D. California.

March 6, 1985.

COPYRIGHT MATERIAL OMITTED

John Eric Lindgren, Santa Ana, Cal., for plaintiffs.

Don Zell, Kinkle Rodiger & Spriggs, Meir J. Westreich, Santa Ana, Cal., for defendants.

JUDGMENT AND ORDER GRANTING MOTION FOR SUMMARY JUDGMENT

RAFEEDIE, District Judge.

This case came before the Honorable Edward Rafeedie, United States District Judge, on January 21, 1985 on the motion of defendants City of Santa Ana, Police Chief Davis, Officer Huerth and Officer Garcia for summary judgment on plaintiffs' claims under 42 U.S.C. § 1983, 1985, and 1986.¹ Having considered the parties' papers, oral argument, and the evidence submitted, the Court renders the following order and judgment:

I. FACTUAL BACKGROUND

The facts stated herein are considered in the light most favorable to the plaintiffs. The Court has found, in accordance with Federal Rule of Civil Procedure 56, that there are no genuine issues of material fact.

This civil rights action is the result of a barroom shooting incident which resulted in the death of plaintiffs' mother, Mary Medina, an innocent bystander. The shooting occurred at the La Posada Mexican Restaurant on the evening of March 28, 1980. Defendant police officers Huerth and Garcia were in the La Posada that night as undercover agents checking for general liquor law violations. They did not disclose their true identities to anyone on the premises.

While they were present, a verbal argument broke out between two patrons, Jesus Jimenez and Jesse Castellanos. Huerth heard Jimenez tell his friend to go and get Jimenez' gun. As Jimenez and his friend left the bar, the officers noticed that Castellanos was following them and that he had a gun protruding from his pocket. At that point Huerth instructed Garcia to get in his vehicle, drive to a place out of sight of the La Posada, and call for uniformed officers as back-up.

Soon after Garcia left, a fight broke out in the crowded bar between Jimenez and Castellanos. In a matter of seconds, bottles were flying and gunshots were ringing out, but no one appeared to be injured. Almost instantaneously, another fight erupted in the back of the bar, and Huerth turned his attention there. Seconds later Huerth heard five more gunshots come from the door area, site of the original fight, and he turned in that direction. During this second round of gunfire, a bullet from Jimenez' gun fatally wounded Ms. Medina, who was sitting at the bar.

Jimenez fled and both officers (Garcia now back from making the call) pursued the suspect in the patrol car. Unsuccessful, they returned to the La Posada where uniformed policemen and paramedics were treating Ms. Medina. At this point, the officers identified themselves for the first time.

According to Officer Garcia's deposition, he and Huerth had been working together for approximately four months at the time of the incident. During this time they had encountered non-violent criminal situations on sixteen to twenty occasions and consistently had had one officer leave the altercation and call for uniformed help, thereby preserving their cover.

II. LEGAL DISCUSSION

A. Claims under 42 U.S.C. § 1983

1. Constitutional Duty

The thrust of plaintiffs' § 1983 claims is that the defendants propagated a policy of having undercover officers maintain their cover, even when faced with imminent life-threatening criminal activity. Plaintiffs contend that this policy was the proximate cause of Ms. Medina's death.

In focusing on the causation question,² however, plaintiffs gloss over the question of whether defendants had a constitutional duty to intervene more quickly. A constitutional duty is to be distinguished from a normal tort duty because "it is perfectly clear that not every injury in which a state official has played some part is actionable under 1983." Martinez v. California, 444 U.S. 277, 285, 100 S.Ct. 553, 559, 62 L.Ed.2d 481 (1980). Moreover, in United States ex rel. Miller v. Twomey, 479 F.2d 701, 720-21 (7th Cir.1973), then Judge Stevens held that, to establish a constitutional claim, a plaintiff must prove more than that a state official made a decision which created "foreseeable risks of violence."

Thus, parole supervisors had no constitutional duty to revoke the parole of a man before he raped, beat, and set afire one plaintiff and shot and stabbed another, even though the supervisors knew the parolee had dangerous propensities and they suspected his commission of a separate arson-murder after his release. Fox v. Custis, 712 F.2d 84, 88 (4th Cir.1983). See also Jackson v. Byrne, 738 F.2d 1443, 1446 (7th Cir.1984) (where two children killed in fire that occurred while firemen were on strike and firehouse across street from fire was unmanned, firemen had no constitutional duty to protect victims, and policemen who barred access to firehouse had no duty to provide rescuers with equipment: "nothing in the Constitution requires governmental units to act when members of the general public are imperiled").

A constitutional duty arises only when the persons acting under color of state law have created a special or custodial relationship or are aware of a special danger with respect to a particular victim. Fox, 712 F.2d at 88. Thus, when an inmate in the custody of a county institution was found dead, there existed a triable issue as to whether the county's lack of care in hiring and supervising their deputies was negligence creating a foreseeable risk of harm. Hirst v. Gertzen, 676 F.2d 1252, 1263 (9th Cir.1982).

In the instant case, however, the defendants had no special or custodial relationship with Ms. Medina. She was simply a member of the general public for whom defendants had no unique responsibility.

In the absence of any affirmative state action creating a special relationship, plaintiffs' sole argument is that, under the circumstances, Officers Huerth and Garcia were aware of a special danger that created a duty to intervene sooner. This Court is unaware of any cases finding the existence of a constitutional duty to act outside of the custodial or special relationship situation. Even if such cases did exist, however, the Court could not, for a number of reasons, find that the instant defendants were aware of a special danger imposing a duty to intervene in Ms. Medina's behalf.

First, no one singled Ms. Medina out as the victim. While an argument might be made that the officers were aware of a special danger to Jimenez and Castellanos, it would be inappropriate to impose a constitutional duty to protect all of the patrons in La Posada that night.

Second, everything happened so quickly that the officers had little opportunity to develop any awareness of a special danger. Very little time elapsed between the escalation of hostilities and the shooting of Ms. Medina.

Last, the Court does not believe that the duty of an undercover officer to intervene should be triggered as quickly as that of a uniformed police officer. Thus, even if the officers had a duty to act, they did not have a duty to intervene immediately.

Therefore, the Court holds that the officers had no constitutional duty to intervene. They created no special relationship nor were they aware of any special danger such that their actions constituted a "deprivation" within the meaning of the Fourteenth Amendment. The absence of a constitutional duty entitles all defendants to summary judgment in their favor on plaintiffs' § 1983 claims.

2. Municipal Liability

Even if Officers Huerth and Garcia had a constitutional duty to intervene, the Court would nevertheless grant summary judgment in favor of defendant City of Santa Ana because a municipality cannot be liable for the acts of its employees unless they are acting pursuant to a policy. Monell v. Department of Social Services of the City of New York, 436 U.S. 658, 694, 98 S.Ct. 2018, 2037, 56 L.Ed.2d 611 (1978).

Under Monell, a city may be liable under § 1983 based on a "custom" or "usage" even if this custom has not received formal approval. The Court, however, indicated that such a practice should be "permanent" or "well-settled." Id. at 690-91, 98 S.Ct. at 2035-36. A court may also infer a policy from the omissions of supervisory officials although plaintiff needs to show acquiescence in a prior pattern in order to prove the existence of a policy in this manner. Turpin v. Mailet, 619 F.2d 196, 200, 202 (2d Cir.1980).

In the instant case, plaintiffs have presented no evidence from which it may be inferred that defendants had a policy of maintaining cover even in the face of imminent violent crime. The evidence of use of the procedure of calling back-ups is unavailing because there is no evidence that such a procedure was used in other life-threatening situations. The testimony of the defendant police officers was that they used this procedure regularly in dealing with non-violent liquor law violators, who normally present no immediate threat to anyone other than themselves. Thus, it is impossible to infer from numerous instances of maintaining cover when dealing with these people that there was a policy of maintaining cover when faced with imminent violent crime.

In addition, all of the evidence elicited from sources within the police department indicates that there was no such policy. The defendant...