Long v. Valentino

• Decision Date: 22 December 1989
• Docket Number: No. G006130,G006130
• Citation: 216 Cal.App.3d 1287,265 Cal.Rptr. 96
• Court: California Court of Appeals Court of Appeals
• Parties: Richard T. LONG, Plaintiff and Respondent, v. Linda VALENTINO et al., Defendants and Appellants.

Page 96

265 Cal.Rptr. 96

216 Cal.App.3d 1287

Richard T. LONG, Plaintiff and Respondent, v. Linda VALENTINO et al., Defendants and Appellants.

No. G006130.

Court of Appeal, Fourth District, Division 3, California.

Dec. 22, 1989.

As Modified on Denial of Rehearing Jan. 19, 1990.

Review Denied April 19, 1990.

Meir J. Westreich and Manes & Watson, Hugh R. Manes, Los Angeles, for defendants and appellants.

Stevenson, Epstein & DePasquale and Jeffrey M. Epstein, Los Angeles, for plaintiff and respondent.

CROSBY, Associate Justice.

This is a novel case, a successful civil rights action brought by a police officer, Richard Long, against a chapter of the American Civil Liberties Union, a conference participant who spoke on the topic of police espionage at political meetings, and an ACLU attorney. ¹ As the issues are framed by defendants Linda Valentino and Rees Lloyd, essentially three questions are presented: (1) Can the Unruh Civil Rights Act (Civ.Code, § 51 et seq.) be violated by First Amendment protected speech? (2) Can private persons be held accountable for a violation of the act based on the use of words alone directed toward a police officer acting in an official capacity? And (3) is it lawful for government agents to attend public political events to gather information concerning the speakers or the organization involved? ²

The short answer to the first question is, the First Amendment does not shield a speaker who uses words alone to violate the Unruh Act, although the speech itself may not be the object of prior restraint (a problem not presented on this record). The second issue requires a qualified affirmative response in the context of this case. The third cannot be answered with any rule of universal application, and we make no effort to address it on the merits. Defendants did not seek relief on that basis via cross-complaint, nor did they assert Long's conduct as an affirmative defense in their answer. Moreover, we will hold that a violation of the Unruh Act cannot be defended on the basis that it was an allegedly justifiable response to another's transgression of the act. The law affords the means to prevent and redress alleged civil rights abuses by public officers and agencies; self-help amounting to a retaliation in kind is not one of them. ³

We will conclude the judgment against Lloyd must be affirmed. The verdict must be set aside with respect to Valentino, however, because the tenuous connection between her words and Lloyd's reaction is insufficient as a matter of constitutional law to affix liability: The judgment against her amounts to an overbroad application of the Unruh Act and conflicts with federal and state constitutional guarantees of freedom of expression.

I

Long was the Newport Beach Police Department Community Programs Officer. In that role he was the official police liaison with the community and the press and reported directly to the chief of police. He attended and organized various meetings in the city. In the fall of 1980, he read of an ACLU Legislative Conference in which police practices would be a topic. The meeting was advertised as open to the public at a public facility, Newport Harbor High School, on October 11, 1980.

With the knowledge and approval of the police chief, Long appeared on that date. Attired in mufti, his usual dress when attending community events, Long paid the modest admission and lunch fees and indicated an interest in seminars dealing with the federal criminal code and police practices. He was given a name tag which he wore during the conference. Long did not sign the register, which did not ask for attendees' occupations, because, as he explained at trial, he was unaware of it. Long said he would have enrolled had his attention been drawn to the register. There was evidence others failed to sign in as well. No warning of any kind was given that representatives of government or law enforcement agencies were not welcome at the conference. (Ironically, one police chief, who did not attend, was an invited guest.)

Long took extensive notes and also, surreptitiously it appears, tape-recorded a speech by the president of the Orange County chapter. Sometime during the morning, ACLU staff attorney Ronald Talmo recognized plaintiff from a recent television appearance as a police spokesman. Talmo asked the officer his reason for attending the conference, and Long told him he was there to hear any criticism that might be made of his department and to learn of the ACLU's perception of Newport Beach police. Talmo did not suggest Long was not welcome, but he notified Meir Westreich of the officer's presence.

Westreich was an ACLU board member and chair of the conference. He was also a witness and counsel for Valentino in the trial court and continues to represent her on appeal. Talmo and Westreich discussed the matter briefly. Apparently by happenstance Westreich then met sequentially with Valentino, Lloyd, and Ramona Ripston, Executive Director of both the ACLU and the ACLU Foundation, concerning what, if anything, should be done about Long's attendance. Westreich suggested to Valentino that she reveal the officer's presence during her part of a seminar on the subject of police surveillance of public meetings. The idea, according to Westreich and Valentino, was to warn the participants that a police officer was among them and to obtain an explanation of purpose from Long himself.

Valentino was an employee of the "Friends Service Committee" and coordinator of its "Police Surveillance Project." At that time she was a plaintiff in an action against the Los Angeles Police Department involving the allegedly unlawful monitoring of political events. Community relations officers were accused of participation in that activity. During her presentation on the subject of police surveillance of public meetings and discussion of the Los Angeles litigation, Valentino turned to Long and, according to him, stated accusatorially, "Would you care to comment on that Officer Long?" At trial she denied knowing which member of the audience he was, however, and suggested it was pure coincidence that she might have looked in Long's direction when she issued her challenge.

Some 20 minutes later, during a question and answer session after Valentino and the next speaker on the program finished, ACLU staff attorney Lloyd rose and asked Valentino whether a police officer was in attendance. She replied she was not sure, but had been told a Newport Beach policeman named Richard Long was in the audience. Lloyd then demanded that Long identify himself. Long did so; and Lloyd said, "I want you outside. I'd like to discuss some of the principles of the ACLU with you." Lloyd started to walk out, but Long remained in his seat. Lloyd then approached the officer and said, "I want you outside right now." His tone of voice "was pretty malevolent," according to Long. "He wasn't being nice about it." He then put a finger in Long's face and ordered him out again. Long refused, stating he did not have to leave and had done nothing wrong. The impasse continued in this vein until Lloyd threatened to slap the officer or slap his with a lawsuit. The sentence was not completed apparently, but Long's testimony tended to support Lloyd's version that the latter was the import of the statement. Nonetheless, Lloyd'd behavior was such that Long felt as if he were being invited outside to fight. Long rose and announced he would leave if allowed to speak first.

Officer Long then told the attendees he was not there to spy on them. He had a legitimate interest in knowing of any concerns they might have with respect to his department. Long would communicate what he learned to the police chief so "that we could do something about these problems." He added he was not attempting to interfere with their rights or freedom of speech but his own rights were being violated by being ejected. Long denied his notes were destined for police intelligence files, although he would make them available to the department if asked. He explained he was off duty and on his own time. (He would later withdraw that claim and admit the opposite was true.)

Long, who testified the incident made him "extremely upset," left the room. Outside, two elderly ladies apologized to him; and Lloyd, now "cordial and polite as could be," came up and stated, "now that you've identified yourself and everybody knows what your intentions are[,] come on back inside. You know, you can come back inside." Long refused, however, "[b]ecause I was embarrassed, I was humiliated by these people. You got all these people sitting there looking at you like you done something wrong."

Three theories were advanced at trial against the ACLU, Lloyd, and Valentino: negligent and intentional infliction of of emotional distress and unlawful discrimination based on occupation under the Unruh Civil Rights Act. The court directed verdicts for defendants on the negligent infliction of emotional distress cause of action and that component of the Unruh Civil Rights Act claim grounded on intimidation by threat of violence (Civ. Code, 51.7). The court also determined there was insufficient evidence to submit the intentional infliction of emotional distress cause of action against the ACLU and Valentino to the jury; Long has not cross-appealed on those points. The issues of whether Lloyd intentionally and with malice subjected plaintiff to emotional distress and whether all three defendants unlawfully discriminated against Long based on his occupation as a peace officer were submitted to the jury. Long prevailed on the latter theory against the ACLU, and Valentino.

II

At the outset it is worth noting that Valentino and Lloyd do not argue the evidence is insufficient to support the jury's factual determination that Long was indeed ejected from the conference, nor do they contend physical expulsion from a public meeting based on an individual's occupation is...