Gates v. Superior Court (32 Cal. App. 4th 481, 1995)

Opinion

TURNER, P. J.

I. Introduction

Defendants, Daryl F. Gates, Matthew Hunt, Ronald Frankel, Ronald Banks, Paul Jefferson, and Bob Hansohn, all former or present senior commanders in the Los Angeles Police Department, seek a writ of mandate to compel the respondent court to sustain a demurrer to two of six causes of action in the first amended complaints brought by plaintiffs, Takeo Hirata, Fidel Lopez, and Reginald Denny. We conclude that under plaintiffs’ two state law causes of action, no monetary damages may be recovered for the alleged discriminatory deployment of police officers during a riot. In so holding, we determine: the Torts Claims Act provides an immunity from money damages for the failure to provide sufficient police protective services during a riot; that immunity for failing to provide sufficient police protective services applies only to monetary claims but not to requests for equitable relief; that racially neutral immunity from damages does not violate the equal protection clause of the United States Constitution; and no right to monetary damages arises from a violation of the equal protection provisions of the California Constitution. Therefore, the demurrers should have been sustained without leave to amend as to plaintiffs’ two state law claims and accordingly we issue our writ of mandate.

II. The First Amended Complaints

A. Overview of Federal and State Causes of Action

The present litigation arises out of the riot which began on April 29, 1992, in Los Angeles after several Los Angeles police officers were not convicted of charges arising out of a criminally excessive force case tried in Ventura County. The operative pleadings of the three plaintiffs, the first amended complaints, all of which are essentially identical, contain six causes of action. The first four causes of action arise under title 42 United States Code sections 1983, 1985(3), and 1986 for violations of federal civil rights. Although the facts underlying the federal civil rights claims are pertinent to the present case, which involves allegations of violations of state law, no issue has been raised either in the trial court or in this proceeding concerning the sufficiency of the allegations in the first amended complaints as to the first four causes of action. Those causes of action remain for resolution via: a trial; summary judgment motion; judgment on the pleadings motion; other appropriate procedural device; or settlement.

Rather, the issue before this court relates solely to the alleged violations of Civil Code sections 51.7 and 52 in the fifth and sixth causes of action respectively. We summarize each of the first amended complaints collectively because the material factual allegations are, aside from the identity of the plaintiffs, all the same. The first amended complaints were organized into seven separate areas of factual allegations. The seven areas relevant to our discussion are: (1) the historical setting and identity of defendants; (2) the policy of discrimination in allocation of police protection services; (3) the implementation of that policy on April 29 and 30, 1992, in the withdrawal of police officers; (4) allegations as to the role of the individual defendants in the withdrawal of police protective services and the failure to deploy an adequate number of officers; (5) plaintiffs’ injuries; (6) the fifth cause of action for violations of Civil Code section 51.7; and (7) the sixth cause of action for violations of Civil Code section 52. In reviewing the factual allegations of the first amended complaints, we must accept them as true. (Aubry v. Tri-City Hospital Dist. (1992) 2 Cal.4th 962, 967 [9 Cal.Rptr.2d 92, 831 P.2d 317].)

B. The Relevant First Amended Complaints’ Allegations Concerning the Two State Causes of Action

1. The Historical Setting and Identity of Defendants

On April 29, 1992, each defendant was a senior supervisor in the department. Their ranks and responsibilities were as follows as alleged in the first amended complaints: Chief Gates; Deputy Chief Hunt, commander of the department’s South Bureau which consisted of the Harbor, 77th Street, and southeast divisions; Deputy Chief Frankel; Commander Banks, assistant commanding officer of South Bureau; Captain Hansohn, the 77th Street division commander; and Captain Jefferson. The first amended complaints later detailed their respective roles on April 29 and 30, 1992. On April 27, 1992, while the jury was deliberating in Ventura County, Chief Gates announced to his officers that acquittals could lead to “civil disturbance, rioting and looting.” He made the same announcement to his officers on April 29, 1992. Further, the first amended complaints alleged defendants should have known that civil disturbances would occur in the event of acquittals in “areas composed of Black, Hispanic, and Asian citizens” and “South Central Los Angeles.”

2. The Policy of Discrimination in the Allocation of Police Protective Services

According to the first amended complaints, defendants had adopted a policy of not training or preparing their officers because of an intent to discriminate against persons present in South Central Los Angeles “with respect to the provision of police services.” Pursuant to that discriminatory intent, defendants “redirected police resources” to “areas in the City composed predominantly of Anglo populations.” Despite knowledge of when the verdicts would be announced, defendants “failed to mobilize officers in the Los Angeles Police Department to respond to the same.” By contrast, the Los Angeles Sheriff’s Department was on tactical alert at 10 a.m. on April 29, 1992.

3. The Withdrawal of Officers and the Failure to Provide Police Protective Services

At 4 p.m., violence broke out at the intersection of Normandie and Florence Avenues of which defendants were all aware. Pursuant to the aforementioned “policy of discrimination in the distribution of police resources,” police protection services were withdrawn from minority communities and simultaneously deployed aggressively in “predominantly . . . Anglo populations.” At approximately 6 p.m. on April 29, 1992, pursuant to the aforementioned policy of discrimination in the allocation of police resources, defendants “withdrew police officers from the area . . . around Florence and Normandie” avenues for the purposes of denying citizens and other persons near the intersection “protective services.” With the “withdrawal of police officers” from that intersection, a signal was given to rioters that crime “would go unrestrained.” With the police withdrawal, officers were directed “not to respond” to crime near the intersection. Further, officers were ordered “not to respond to 9-1-1 calls for emergency assistance . . . .” The reason that emergency calls were not to be responded to was for the purpose of “denying” persons near the intersection “protective services.”

4. Allegations Concerning Individual Defendants

a. Chief Gates

It was alleged Chief Gates left Parker Center shortly after 6 p.m. to attend a political fundraiser and admitted there was a “willful failure to deploy police resources” and that “some people . . . were going to go without police assistance . . . .” Further, plaintiffs alleged at this time “Chief Gates had no intention to redeploy police officers in minority neighborhoods” and “officers . . . remained undeployed for over six hours . . . .” Further, it was alleged that Chief Gates had “in prior civil disturbances, including the Watts riots” withdrawn “L.A.P.D. resources” and failed “to redeploy said resources” in minority communities.

b. Deputy Chief Frankel

As to Deputy Chief Frankel, it was alleged he “assumed partial command” of the department at 4 p.m. on April 29, 1992, and with knowledge of the escalating violence, “refused to deploy or facilitate the deployment” of officers with the “intent to deny protective services” for unlawful discriminatory reasons. At 5:45 p.m., another defendant, who is not a party to this proceeding, Lieutenant Michael Moulin, the 77th Street division watch commander, directed department radio and computer terminal dispatchers not to “send police officers into the intersection . . . .” Later, Lieutenant Moulin “refused to deploy and/or facilitate the deployment of police officers” throughout South Central Los Angeles with the intent to deprive “protective services to citizens ... in minority neighborhoods.”

c. Deputy Chief Hunt

As to Deputy Chief Hunt, it was alleged he assumed command of the “Field Command Post” after 6 p.m. on April 29, 1992, and at 7 p.m. “ordered the withdrawal of police officers away from the intersection . . . .” This order was made with the intent to deny those in the area “protective services . . . .” Further, Deputy Chief Hunt was alleged to have “refused to deploy or facilitate the deployment of police officers into surrounding minority neighborhoods throughout South Central Los Angeles with the intent to deny municipal services ... in minority neighborhoods.”

d. Commander Banks

As to Commander Banks, it was alleged he was assigned as the “Executive Officer of the Field Command Post” by Deputy Chief Hunt. Commander Banks “ordered the withdrawal of police officers away from the intersection . . . with the intent to deny citizens [in the area] protective services . . . .” Commander Banks allegedly later refused to “deploy or facilitate the deployment of police officers into . . . minority neighborhoods.”

e. Captain Hansohn

As to Captain Hansohn, he was appointed by Deputy Chief Hunt as the “Personnel Officer of the Field Command Post. . . .’’He too “ordered the withdrawal of police officers away from the intersection” and with the intent to deprive those in the area of “municipal and county services.”

f. Captain Jefferson

Captain Jefferson ordered the withdrawal of the officers away from the intersection for the purposes of denying “protective services.” He further ordered officers to the “Field Command Post” where they remained until after midnight on April 30, 1992.

g. The 1,790 Officers in the Field Command Post but Not on the Streets in Minority Neighborhoods

By 12 midnight on April 30, 1992, there were 1,790 officers in the “Field Command Post” “as a result of defendants’ deliberate and systematic withdrawal of police resources from minority neighborhoods . . . .” Further, defendants “refused to deploy or facilitate the deployment of police officers into the surrounding minority” neighborhoods. Between 6 p.m. on April 29, 1992, and midnight on April 30,1992, officers at the “Field Command Post” became angry because they “had a strong desire to provide protective services” but defendants ordered them not to do so “pursuant to . . . [the] aforementioned policy of discrimination in the distribution of police services . . . .” Moreover, in the absence of this policy, the angry officers in the “Field Command Post. . . would have in fact provided protective services” to persons near the intersection. Meanwhile, in predominantly Anglo communities, there was a “significant and visible police presence . . . .” This was pursuant to the “policy of [racial] discrimination in the distribution of police resources . . . .” The effect of that policy was to have a “significant and visible” number of officers in predominantly Anglo communities “while simultaneously withdrawing its resources from South Central Los Angeles ....’’ Further, between April 29, 1992, and May 4, 1992, there were more arrests in Valley Bureau than in South Bureau of the department. The difference in arrest rates “was the direct result of defendants’ aforementioned policy of discrimination in the distribution of police resources . . . .”

5. Plaintiffs’ Injuries

The three first amended complaints alleged that plaintiffs were in the intersection. While there, they were attacked by members of a mob. Because no Los Angeles police officers were present, “ordinary citizens” saved plaintiffs’ lives. Plaintiffs seek monetary compensation for their personal injuries.

6. Fifth Cause of Action

The fifth cause of action was entitled: “(Violation of Civil Rights) [Civil Code Section 51.7].” The fifth cause of action alleged plaintiffs were deprived of equal protection of the laws by: “[the act of] withdrawing protective services and failing to deploy and redeploy police officers”; the act of “simultaneously aggressively deploying police resources in communities inhabited by predominately Anglo Citizens”; thereby depriving persons in “minority neighborhoods of the right to be free from violence”; “the withdrawal of police officers from the intersection . . .”; forbidding “officers from responding to 9-1-1 calls” and “responding to acts of violence” near the intersection; and “increas[ing] the vulnerability of individuals” at the intersection and depriving residents in the area “of the right to be free from violence . . . Plaintiffs sought money damages.

7. Sixth Cause of Action

The sixth cause of action was entitled: “(Violation of Civil Rights) [Civil Code Section 52].” The sixth cause of action adopted all of the other allegations of the first amended complaints. It alleged all defendants conspired with one another to implement the aforementioned unlawful discriminatory policies. Defendants violated plaintiffs’ civil rights by “purposely engaging in a policy of discrimination in the distribution of protective services.” Plaintiffs sought monetary relief only.

III. Discussion

A. Standard of Review

Because we are reviewing the sufficiency of a pleading, we apply the following standard of review: “The reviewing court gives the complaint a reasonable interpretation, and treats the demurrer as admitting all material facts properly pleaded. [Citations.] The court does not, however, assume the truth of contentions, deductions or conclusions of law. [Citation.] . . . However, it is error for a trial court to sustain a demurrer when the plaintiff has stated a cause of action under any possible legal theory. [Citation.]” (Aubry v. Tri-City Hospital Dist., supra, 2 Cal.4th at pp. 966-967.) Because the present case involves the application of a governmental immunity to a pleading, we also apply the test articulated in Lopez v. Southern Cal. Rapid Transit Dist. (1985) 40 Cal.3d 780, 792-793 [221 Cal.Rptr. 840, 710 P.2d 907], where the California Supreme Court held: “It is well established that the allegations of a complaint must be liberally construed with a view to attaining substantial justice between the parties [citations]. We have also held that, ‘in governmental tort cases “the rule is liability, immunity is the exception” .... Unless the Legislature has clearly provided for immunity, the important societal goal of compensating injured parties for damages caused by willful or negligent acts must prevail.’ [Citation.]” Because the present case involves claims against public employees and is controlled by the California Tort Claims Act, the following rules apply: “However, because under the Tort Claims Act all governmental tort liability is based on statute, the general rule that statutory causes of action must be pleaded with particularity is applicable. Thus, ‘to state a cause of action against a public entity, every fact material to the existence of its statutory liability must be pleaded with particularity.’ [Citations.]” {Id. at p. 795.) It is a plaintiff’s responsibility to plead “ ‘facts sufficient to show [his or her] cause of action lies outside the breadth of any applicable statutory immunity.’ [Citation.]” {Id. at p. 796.)

B. The Section 845 Immunity From Monetary Damages

1. Introduction

The respondent court should have sustained defendants’ demurrer without leave to amend. All of plaintiffs’ claims are premised upon a failure to provide adequate police protection at the intersection where they were attacked. Defendants are immune from civil liability for money damages for failing to provide adequate police protection against participants in criminal conduct during a riot. Government Code section 845 provides: “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.” Based on this specific immunity, which protects defendants from the duty of paying money damages, the demurrer should have been sustained without leave to amend. We emphatically state that section 845 only provides an immunity from the payment of money damages. The first amended complaint alleges an ongoing deliberate racially based misallocation of police resources, but does not seek future equitable relief. Section 845 is only an immunity from the payment of monetary damages — it is inapplicable to a suit for equitable relief. (§814; Cal. Government Tort Liability Practice (Cont.Ed.Bar 1992) § 2.109, pp. 201-205.) To deliberately reduce the number of police officers in a minority community, because of the residents’ race, is an undemocratic act of indescribable inhumanity. This opinion, which discusses the section 845 immunity from the duty to pay monetary damages, may not be read that equitable relief is unavailable when police supervisors discriminate in the deployment of protective resources for racial reasons.

In determining the scope of the section 845 immunity from money damages, we must interpret the statute to carry out the Legislature’s intent. Our Supreme Court has noted: “When interpreting a statute our primary task is to determine the Legislature’s intent. [Citation.] In doing so we turn first to the statutory language, since the words the Legislature chose are the best indicators of its intent.” (Freedom Newspapers, Inc. v. Orange County Employees Retirement System (1993) 6 Cal.4th 821, 826 [25 Cal.Rptr.2d 148, 863 P.2d 218]; People v. Jones (1993) 5 Cal.4th 1142, 1146 [22 Cal.Rptr.2d 753, 857 P.2d 1163].) Further, our Supreme Court has noted: ‘“If the language is clear and unambiguous there is no need for construction, nor is it necessary to resort to indicia of the intent of the Legislature (in the case of a statute) (Delaney v. Superior Court (1990) 50 Cal.3d 785, 798 [268 Cal.Rptr. 753, 789 P.2d 934].) However, the literal meaning of a statute must be in accord with its purpose as our Supreme Court noted in Lakin v. Watkins Associated Industries (1993) 6 Cal.4th 644, 658-659 [25 Cal.Rptr.2d 109, 863 P.2d 179], as follows: “We are not prohibited ‘from determining whether the literal meaning of a statute comports with its purpose or whether such a construction of one provision is consistent with other provisions of the statute. The meaning of a statute may not be determined from a single word or sentence; the words must be construed in context, and provisions relating to the same subject matter must be harmonized to the extent possible. [Citation.] Literal construction should not prevail if it is contrary to the legislative intent apparent in the [statute] . . . .’ ” In Lungren v. Deukmejian (1988) 45 Cal.3d 727, 735 [248 Cal.Rptr. 115, 755 P.2d 299], our Supreme Court added: “The intent prevails over the letter, and the letter will, if possible, be so read as to conform to the spirit of the act. [Citations.] An interpretation that renders related provisions nugatory must be avoided [citation]; each sentence must be read not in isolation but in light of the statutory scheme [citation] . . . .” Further, in interpreting the Tort Claims Act, we are mindful that our Supreme Court has noted: “ ‘[T]he intent of the [Tort Claims Act] is not to expand the rights of plaintiffs in suits against governmental entities, but to confine potential governmental liability to rigidly delineated circumstances: immunity is waived only if the various requirements of the act are satisfied.’ [Citation.]” (Brown v. Poway Unified School Dist. (1993) 4 Cal.4th 820, 829 [15 Cal.Rptr.2d 679, 843 P.2d 624]; accord, Williams v. Horvath (1976) 16 Cal.3d 834, 838 [129 Cal.Rptr. 453, 548 P.2d 1125]; Chester v. State of California (1994) 21 Cal.App.4th 1002, 1008, fn. 10 [26 Cal.Rptr.2d 575]; City of Los Angeles v. Superior Court (1993) 14 Cal.App.4th 621, 627 [17 Cal.Rptr.2d 703]; Fisher v. Pickens (1990) 225 Cal.App.3d 708, 715-716 [275 Cal.Rptr. 487]; McCauley v. City of San Diego (1987) 190 Cal.App.3d 981, 991 [235 Cal.Rptr. 732]; Shields v. County of San Diego (1984) 155 Cal.App.3d 103, 113 [202 Cal.Rptr. 30]; Longfellow v. County of San Luis Obispo (1983) 144 Cal.App.3d 379, 385 [192 Cal.Rptr. 580]; Keyes v. Santa Clara Valley Water Dist. (1982) 128 Cal.App.3d 882, 886 [180 Cal.Rptr. 586]; Harland v. State of California (1979) 99 Cal.App.3d 839, 845-846 [160 Cal.Rptr. 613]; Galli v. State of California (1979) 98 Cal.App.3d 662, 674-675 [159 Cal.Rptr. 721].)

2. Development of Law Concerning Public Entity and Employee Liability for Monetary Damages for Failure to Respond to a Riot

In order to understand the applicability of section 845 to decisions by police commanders not to allocate resources in a riot environment, it is necessary to review the development of the law in connection with municipal liability for money damages resulting from mob violence.

a. Monetary Property Damage Liability Resulting From a Riot Prior to the 1963 Adoption of the Tort Claims Act

The 1963 enactment of section 845 and related immunities constituted a radical departure from then existing law relating to government’s liability to pay money damages for property losses resulting from mob violence. Prior to the 1963 adoption of section 845, both in England and in this country, the traditional rule had provided for governmental financial liability for property damage caused by a mob. In Agudo v. County of Monterey (1939) 13 Cal.2d 285, 287 [89 P.2d 400], the California Supreme Court noted: “The genesis of the principle involved has been traced to the Statute of Winchester enacted in 1285 (1 Stat. 13 Edw. I, p. 2, ch. 3), which provided that a person robbed might sue the inhabitants of the hundred or county in which the robbery had taken place. In ancient England, the individual inhabitants of each community were in theory responsible for the preservation of peace and order therein; hence it was considered just to impose civil liability upon them for damage to property resulting from criminal disorders which should not have been permitted. (See 25 Halsbury’s Laws of England, 2d ed., 359.) The American statutes rest largely upon the same fundamental principle. Local subdivisions of government which have been invested with police power to maintain law and order are subjected to a correlative liability for injuries to property occasioned by rioters. [Citation.] [fj The prototype of the present American statutes is found in a section of the statute 1 Geo. I, St. 2, Ch. 5, commonly known as the ‘Riot Act’. In the main the act was penal, making it a felony to engage in riots or public tumults, but one clause (section 6) created civil liability against the inhabitants of the hundred in which a riot had resulted in injury to private property. Liability was measured by the loss sustained, and consequently actions brought under this section of the act were held to be primarily remedial in spite of the fact that it was embodied in a statute which was otherwise entirely penal.” Later, the Agudo court held: “In various American jurisdictions statutes based upon section 6 of the English Riot Act usually have provided for compensatory damages to the person whose property was injured or destroyed, and in construing them the courts have generally followed the English view that the sufferer’s right to damages is remedial. [Citations.]” (Id. at p. 288.)

Consistent with the development of law in England and other parts of the country, in 1868, the California Legislature adopted a comprehensive statute which provided for, among other things: financial liability on the part of a city or county for damage to real or personal property as a consequence of any riot; that the defense of contributory negligence was available to the public entity; a statutorily mandated duty on the part of the mayor or sheriff to take all legal means to protect property from a riot; and a one year statute of limitations under most circumstances. (Stats. 1867-1868, ch. CCCXLIV §§ 1-8, pp. 418-419.) In 1872, upon the adoption of the code system in California, the 1868 legislation was codified as Political Code section 4452. After several further modifications, it was recodified as former section 50140 which provided: “A local agency is responsible for damages by mobs or riots to property within its boundaries.” (Stats. 1949, ch. 81, § 1, p. 259.)

In 1961, the California Supreme Court abrogated the doctrine of sovereign immunity in Muskopf v. Corning Hosp. Dist. (1961) 55 Cal.2d 211, 219-220 [11 Cal.Rptr. 89, 359 P.2d 457]. Prior to Muskopf, public entities and their employees were immune from suit based on the doctrine of sovereign immunity except as follows: where liability was provided by statute; when the public entity engaged in a proprietary as distinguished from governmental activity; in connection with nuisance claims; or where private property was taken for a public use under circumstances constituting inverse condemnation. (Van Alstyne, Governmental Tort Liability: Judicial Lawmaking in a Statutory Milieu (1963) 15 Stan.L.Rev. 163, 166; Kennedy & Lynch, Some Problems of a Sovereign Without Immunity (1963) 36 So.Cal.L.Rev. 161, 164.) When the Muskopf decision was issued, the California Law Revision Commission was in the process of a reevaluation of the doctrine of sovereign or governmental immunity as a result of a 1957 Assembly resolution which authorized the following action: “A study to determine whether the doctrine of sovereign or governmental immunity in California should be abolished or revised.” (Assem. Cone. Res. No. 22, Stats. 1957 (Reg. Sess.) res. ch. 202, p. 4590.) On January 2, 1963, the commission issued a study which recommended an expansion of former section 50140 et seq. When Muskopf was decided, former section 50140 only provided for governmental liability for property damage occasioned by mob actions. (Stats. 1949, ch. 81, § 1, p. 259.) The study, authored by Professor Arvo Van Alstyne of the School of Law at the University of California at Los Angeles, recommended that public entity financial liability be extended to personal injuries as well as property damage resulting from a riot. (Study Relating to Sovereign Immunity (Jan. 1963) 5 Cal. Law Revision Com. Rep. (1963) pp. 451-452.)

However, when the Law Revision Commission issued its recommendations for reform of the governmental tort system, the entire English and American legal tradition of public entity liability for property damage during a riot, as well as Professor Van Alstyne’s recommendation, were rejected. Rather, the commission recommended the adoption of immunities from potential money damages for the failure of public entities and employees to enforce the law and the repeal of section 50140 et seq. The commission stated: “For similar reasons, public entities and their employees should not be liable for inadequate enforcement of any law or regulation or for failure to take steps to regulate the conduct of others. The extent and quality of governmental service to be furnished is a basic governmental policy decision. Public officials must be free to determine these questions without fear of liability either for themselves or for the public entities that employ them if they are to be politically responsible for these decisions. [