Peterson v. City of Long Beach

• Citation: 594 P.2d 477,155 Cal.Rptr. 360,24 Cal.3d 238
• Court: United States State Supreme Court (California)
• Decision Date: 16 May 1979
• Parties: , 594 P.2d 477 Otis PETERSON et al., Plaintiffs and Appellants, v. CITY OF LONG BEACH et al., Defendants and Respondents. L.A. 30867

Page 360

155 Cal.Rptr. 360

24 Cal.3d 238, 594 P.2d 477

Otis PETERSON et al., Plaintiffs and Appellants, v. CITY OF LONG BEACH et al., Defendants and Respondents.

L.A. 30867.

Supreme Court of California

May 16, 1979.

Rehearing Denied July 12, 1979.

David R. Finch and Finch, Castello & Tennant Campbell, for plaintiffs and appellants.

Amitai Schwartz, Margaret C. Crosby, Alan L. Schlosser, San Francisco, Fred Okrand, Los Angeles, Nicholas B. Waranoff, Jacobs, Sills & Coblentz, Vilma S. Martinez, Morris J. Baller, San Francisco, John H. Erickson, Alice M. Beasley, Oakland, and Anthony G. Amsterdam as amici curiae on behalf of plaintiffs and appellants.

Leonard Putnam, City Atty., and Robert E. Shannon, Deputy City Atty., for defendants and respondents.

Evelle J. Younger, Atty. Gen., Jack R. Winkler, Chief Asst. Atty. Gen., Edward P. O'Brien, Asst. Atty. Gen., W. Eric Collins and Clifford K. Thompson, Jr., Deputy Attys. Gen., Stephen Warren Solomon, William J. Ramey, Ralph B. Saltsman and Emanuel Cowitt, Marina Del Rey, as amici curiae on behalf of Defendants and Respondents.

NEWMAN, Justice.

In 1972 Police Officer Vershaw shot and killed Roland Peterson. At the time of the killing Peterson was running from his apartment. Vershaw had responded to a radio call erroneously reporting a burglary in progress at the apartment. He approached with gun drawn. Peterson fled and was shot in the head. Vershaw had had no report of, nor did he see, any weapons, violence, or threat of violence at the apartment.

Plaintiffs, Peterson's parents, sued Vershaw and his employer, City of Long Beach, for wrongful death. The trial court, ruling that Vershaw's use of deadly force was justifiable, held in favor of both defendants. Plaintiffs appeal.

We conclude that the ruling on use of force was error. California law creates a presumption that Vershaw did not exercise due care here. The trial court should have considered, but did not consider, whether that presumption was rebutted by evidence that Vershaw did "what might reasonably be expected of a person of ordinary prudence, acting under similar circumstances, who desired to comply with the law . . . ." (Evid.Code, § 669, subd. (b)(1).)

I. The Police Department Manual

Our first question is whether the Long Beach Police Department Manual contains regulations of a public entity. The question is pertinent to Vershaw's use of deadly force because in 1967 the Legislature enacted Evidence Code section 669, subdivision (a), which provides: "The failure of a person to exercise due care is presumed if . . . (he) violated a . . . regulation of a public entity . . . ." ¹

The trial court found that "there was in existence Section 4242 of the City of Long Beach Police Department Manual which prescribed certain guidelines for the discharge of a firearm by a City of Long Beach police officer"; ² further, that "Officer Vershaw, in firing his weapon at Roland Peterson, failed to comply with the guidelines . . . ." ³

The court's conclusions of law included these paragraphs:

"5. The City of Long Beach Police Department Manual, Section 4242, though it may serve as a guideline for the conduct of Long Beach police officers, does not constitute a minimal standard of care for the use of firearms by said police officers.

"6. The failure of Officer Vershaw to comply with Section 4242 of the City of Long Beach Police Department Manual, in discharging his firearm herein, does not constitute a negligent or a wrongful act, so long as his conduct was within the permissible limit of the California Penal Code and it was within such limit. . . ."

Defendants argue that, when the Legislature in Evidence Code section 669, subdivision(a) enacted the phrase "statute, ordinance, or regulation of a public entity," the intent was to cover local ordinances but not local regulations like section 4242 of the police manual. Even though the chief of police and the city manager were authorized to act for the city and duly prescribed section 4242 (see fn. 2, Ante ), the argument seems to be that their official positions did not clothe them with the attributes of a public entity.

What did the Legislature mean by "public entity"? Section 200 of the Evidence Code, enacted two years earlier than section 669, tells us that a public entity can be "a nation, state, county, city and county, city, district, public authority, Public agency, or any other political subdivision or public corporation, whether foreign or domestic"; and when those definitional words were proposed the California Law Revision Commission commented: "The broad definition of 'public entity' includes Every form of public authority . . ." (Italics added.) Those two italicized phrases, "public agency" and "every form of public authority," are apt here.

A city is a public entity. But so are the office of its city manager and the department that its police chief directs. Each traditionally has been regarded as an "agency" of the city, obviously "public." We find it hard to believe that the Legislature would not regard city managers and police chiefs (whose power to promulgate rules is conceded) as heads of a "form of public authority." Since, therefore, when they promulgated the manual the city manager and the police chief were acting as heads of a public entity, as defined by the Legislature, and since section 4242 of the manual clearly is a "regulation," ⁴ we hold that the trial court should not have concluded that section 4242 "does not constitute a minimal standard of care for the use of firearms by said police officers." The trial court thus did not give due consideration to the rebuttable presumption of failure to exercise due care that Evidence Code section 669 prescribes.

II. Policy Considerations

So far we have focused on words and their plain meaning. We now examine legislative aims, to be sure that a conclusion as to words alone will not irrationally extend the Legislature's purpose.

The statute enacted in 1967 was proposed by the Law Revision Commission, which stated: "Section 669 codifies a common law presumption that is frequently applied in the California cases." Those cases (and others since decided) mostly involved statutes and ordinances. Many, though, dealt with administrative regulations. (See, e. g., Levels v. Growers Ammonia Supply Co. (1975) 48 Cal.App.3d 443, 447, 121 Cal.Rptr. 779 (Div. of Ind. Safety order; Accord : Short v. State Compensation Ins. Fund (1975) 52 Cal.App.3d 104, 109, fn. 4, 125 Cal.Rptr. 15); Atkins v. Bisigier (1971) 16 Cal.App.3d 414, 420, 94 Cal.Rptr. 49 (Dept. of Health reg.); Elton v. County of Orange (1970) 3 Cal.App.3d 1053, 1059, 84 Cal.Rptr. 27 (social welfare regs.); Nevis v. Pacific Gas and Electric Co. (1954) 43 Cal.2d 626, 629, 275 P.2d 761 (P.U.C. order); Peterson v. Permanente Steamship Corp. (1954) 129 Cal.App.2d 579, 581, 277 P.2d 495 (Coast Guard reg.); cf. San Diego Gas & Electric Co. v. United States (9th Cir. 1949) 173 F.2d 92, 93 (civil aeronautics reg.); Neiswonger v. Good Year Tire & Rubber Co. (N.D.Ohio 1929) 35 F.2d 761, 763 (Sect. of Commerce rule).)

Here, however, it is argued that statewide or nationwide regulations on matters such as industrial safety and aeronautics are different from local regulations, at least when no city council, school board, or similarly "sovereign" entity has promulgated the regulations. ⁵ The argument has no merit. In California the local laws that prescribe safety, health, or other standards sometimes are promulgated as ordinances, sometimes as regulations. When the regulations have been duly prescribed and contain words that clearly are obligatory, to suggest that the Legislature in section 669 intended to distinguish between ordinance-form and regulation-form standards discloses a lack of understanding as to how modern governments work. (Cf. Hopper v. Bulaich (1945) 27 Cal.2d 431, 434, 164 P.2d 483 (road commissioner's permit); Davis, Administrative Law: Cases-Text-Problems (6th ed. 1977) p. 509: "Officers should not have power to determine in each case in accordance with their momentary whims what overall policy they prefer. . . . (T)hat is the power that rulemaking should subtract.")

By no means have legislators in California been unsophisticated as to administrative regulations, as to differences between rulemaking and adjudication, as to rulemaking procedures that are practicable for state agencies but perhaps not yet for local agencies, as to parallel matters. ⁶ Government Code section 811.6 defines regulation. It means "a rule, regulation, order or Standard, having the force of law, Adopted by an employee or agency . . . Of a public entity pursuant to authority vested by constitution, statute, Charter or ordinance in such employee or agency to implement, interpret, or make specific the law enforced or administered by the employee or agency" (italics added).

That definition surely includes standards for the use of weapons when the standards have the force of law ⁷ and were adopted, as they were here, by the public entity's employees (city manager and police chief), pursuant to authority vested by charter or ordinance to implement, interpret, or make specific the law administered by those employees and their subordinates.

The trial court found that, when Vershaw shot and killed plaintiffs' son, he "failed to comply with . . . ( § 4242)." Evidence Code section 669 applies, and the presumption of failure to exercise due care arose because the son's death "resulted from an occurrence of the nature of which . . . ( § 4242) was designed to prevent." (See § 669, subd. (a)(3).)

III. Evidence Code Section 669, Subdivision(b)(1)

Our final question is whether the trial court erred when it failed to address the issue posed by Evidence Code section 669, subdivision (b)(1): Was the presumption that Vershaw failed to exercise due care because he violated the police manual rebutted by evidence that he did "what might reasonably be expected of a...