Cornell v. City and County of San Francisco ( 2017 )

Filed 11/16/17
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION FOUR
BRET CORNELL,
Plaintiff and Respondent,
A141016 & A142147
v.
CITY AND COUNTY OF SAN (City & County of San Francisco
FRANCISCO, et al., Super. Ct. No. CGC11509240)
Defendants and Appellants.
Police officer trainee Bret Cornell, while off-duty and in street clothes, went for a
run one morning in Golden Gate Park, stopping for a brief rest on a knoll called Hippie
Hill. Two uniformed patrol officers in the area spotted him, thought he looked
“worried,” and grew suspicious because the bushes on Hippie Hill are known for illicit
drug activity. As the patrolmen began to approach Cornell, but before they reached him
or said anything to him, he resumed his run. The officers gave chase, joined in pursuit by
two other officers who responded to a call for backup. One of the officers, with his gun
drawn, eventually caught up to Cornell on a trail in some nearby woods.
Cornell claims he had no idea he was being chased or that the officers wished to
speak with him. On the trail, he says he heard a shout from behind, “I will shoot you,”
and looked over his shoulder to see a dark figure pointing a gun at him. He darted away,
ultimately finding what he thought was refuge with a police officer awaiting his arrival
some distance away at the top of a stairway in AIDS Memorial Grove. But to his surprise
when he arrived there, that officer ordered him to the ground. He was arrested at gun-
point and searched, taken in handcuffs to a stationhouse for interrogation, and eventually
to a hospital for a drug test, which was negative.
1
In the meantime, a team of officers went back to Golden Gate Park, spoke to
people who had seen Cornell that morning, and conducted a search of the areas where he
was known to have been, and of his parked truck. No evidence of involvement with
drugs turned up, and after nearly six hours in custody, Cornell was released. As he was
leaving the stationhouse, he was given a criminal citation for evading arrest in violation
of Penal Code section 148. Other than cursory questioning by the officers who issued the
citation, no one in a position of higher authority ever interviewed him or asked for his
side of the story. Cornell was never prosecuted, but he lost his job as a result of the arrest
and citation.
To recover for the damage done to him, Cornell sued the four arresting officers,
the Chief of Police, and the City and County of San Francisco. Following phase one of a
bifurcated jury trial on special verdict forms, the trial court, relying on findings of fact by
the jury in the initial phase, determined that Cornell was arrested without probable cause,
thereby establishing liability for false arrest, and prompting the defense to stipulate to
liability for negligence. In phase two, the jury returned a verdict for Cornell on two
remaining claims, tortious interference with economic advantage, and violation of Civil
Code section 52.1 (Section 52.1), awarding total damages of $575,231. Following trial,
the court added $2,027,612.75 in attorney’s fees and costs on the Section 52.1 claim.
These consolidated appeals are from the ensuing judgment and the award of
attorney’s fees and costs. The appellants argue 1) as a matter of law, the jury’s phase one
findings do not support the trial court’s determination that probable cause was lacking,
2) the trial court should have declared a mistrial when the jury deadlocked on one of 18
questions put to it in the phase one special verdict form, 3) the trial court failed to address
their argument that, under Penal Code section 847, subdivision (b), they are immune from
claims for false arrest, and 4) even if the verdict on the tort claims is upheld, the Section
52.1 verdict and accompanying award of fees and costs must be reversed because there
was insufficient evidence to submit that claim to the jury.
Seeing no error, we affirm.
2
I. BACKGROUND
A. The Evidence at Trial
In July 2010, Bret Cornell, a recent graduate of the police academy employed by
the San Francisco Police Department as a field officer trainee, went for a morning jog in
Golden Gate Park at around 7:00 a.m., after finishing a night shift. He was dressed in
gray canvas pants cut off at mid-ankle, a plaid fleece jacket over a dark t-shirt, and
running shoes. After running a considerable distance, at around 8:00 a.m., he ran across
Sharon Meadow and stopped to rest at the top of Hippie Hill, just as a police cruiser
drove through the trees up to the crest of the hill along a pedestrian pathway. He looked
at the car, and not wanting to interfere with whatever the officers were doing, walked
down to the bottom of the hill.1
The two uniformed officers in the cruiser, David Brandt and Richard “Brett”
Bodisco, considered Hippie Hill to be a high crime area. Both officers had made
numerous narcotics arrests there, mostly involving drug transactions in the bushes, and
there had been a homicide in the park a few days earlier. According to Officers Brandt
and Bodisco, they drove up the pathway to gauge the reaction of people on the other side
of the crest who could not see them coming. Cornell, a stranger to the officers, glanced at
their car when they came into view, and then looked away. Cornell was by himself, not
talking to anyone, had nothing in his hands, and was not doing anything specific to
arouse suspicion. Officer Brandt described Cornell as having a “clean-cut” look, which
he said was consistent with someone who was a recent parolee.2 Because Cornell
1
Cornell testified that when he saw the officers’ car, he thought it “odd” they were
driving on a pedestrian path, “figured . . . they were doing some kind of official
operation,” and wanted to avoid them because “I didn’t need to get myself involved in
any official operations” while off-duty. He explained that “in field training we are not
allowed to have any off-duty contact. We are not supposed to be getting involved in
official police matters if we can avoid it.”
2
On cross-examination, Officer Brandt admitted Cornell’s appearance was also
consistent with that of a recent graduate of the police academy.
3
appeared to be “worried” in their presence, Officers Brandt and Bodisco turned their car
toward him and decided to initiate a consensual encounter. They did not activate their
lights, or say anything to him over their loudspeaker.
As the officers turned toward Cornell, and as he walked away from them, headed
downhill, he looked back briefly in their direction and then began running. With their
suspicions aroused, the officers decided to chase Cornell and detain him. Officer
Bodisco jumped out of the car and made a radio call for backup to assist in setting up a
perimeter to cut Cornell off from any escape. The call, which drew the assistance of two
more uniformed officers, Jesse Farrell and Sergeant Wallace Gin, included a description
of Cornell and the direction he was headed, but no other details. When Officer Bodisco’s
call for backup went out, the police dispatcher asked “What’s the want?” Officer
Bodisco responded, simply, “[R]unning.” According to Officer Brandt, the call gave no
specifics because at that point “we didn’t have anything specific.” Surveying the area
from the top of the hill to see where Cornell went, Officer Bodisco testified he saw
Cornell go off path through some bushes, reappearing below the hill without his plaid
jacket and wearing only a dark shirt, which the officers took to be an attempt to throw
them off his track.
When Cornell left Hippie Hill, he was unaware the officers wanted him to stop.
His explanation for discarding his fleece jacket was that, after an hour’s run, he was
feeling hot. Having unsuccessfully tried to tie his fleece jacket around his waist while
running at an earlier point on his route, he folded it and placed it on a tree stump to
retrieve later. He said he had done that before and had no problem with anyone taking it,
and even if someone did take it, the garment was inexpensive and easily replaceable.
Once the officers caught sight of Cornell from their vantage point on Hippie Hill, Officer
Bodisco set out after him on foot. Officer Brandt, still in the cruiser, drove down and
around the hill, past some tennis courts, and along nearby Bowling Green Drive. As he
drove, Officer Brandt stopped to ask two people along the way if they had seen someone
4
matching Cornell’s description; one person claimed to have seen someone running near
the tennis courts, and another said he had heard some rustling in bushes up a winding dirt
trail nearby.
Continuing in the direction these park users pointed out, Officer Brandt’s search
took him to the bottom of a trail known as the High Path, a dirt pathway lined on both
sides by trees and brush, leading up a hill beyond Bowling Green Drive at the entrance to
the AIDS Memorial Grove. Officer Farrell arrived and joined Officer Brandt at the
bottom of the High Path, and the two of them began proceeding up the trail, with Officer
Brandt in the lead. Officer Brandt described the trail as dark and having a “cave[-like]
appearance.” He unholstered his gun at this point and held it in a “low ready” position,
not because of any specific threat, but because of “fear of the unknown.” Officer Farrell,
for his part, perceiving no threat, left his gun holstered.
Officer Brandt caught sight of Cornell walking up ahead and eventually came
close enough to confront him. Officer Farrell was directly behind Officer Brandt, could
see that Cornell appeared to be “clean cut,” was not armed, had nothing in his hands, and
was doing nothing threatening. Officer Brandt shouted something at Cornell. Both
officers recall Officer Brandt unmistakably ordering Cornell to stop at that point,3
causing Cornell to pause, half turn in their direction, look at them squarely, and then dash
away at full speed, taking a route downhill through the trees in a clear effort to evade
capture.
Cornell—who testified he still had no idea he was being pursued by police officers
during the encounter on the High Path—said he heard a “disturbance” behind him and
then heard the words “I will shoot you,” which prompted him to glance over his shoulder
and see a dark figure pointing a gun. He said he took off sprinting in desperate flight
3
What exactly Officer Brandt shouted was disputed (Officer Brandt—“stop[,]
police”; Farrell—“some sort of command,” cannot recall exact words; Cornell—“I will
shoot you,” and did not think whoever said it was a police officer because “I will shoot
you” is not an appropriate police command), but there is no dispute he yelled at least the
words “I will shoot you.”
5
from an unknown, armed attacker, and then tripped and fell down a steeply pitched slope
through some trees, tumbling into the AIDS Memorial Grove. Standing at the top of a
stairway across the meadow from where Cornell landed was Sergeant Gin. Cornell began
to run toward the stairway, thinking he had found protection from the unknown assailant
who had just accosted him on the High Path. To Cornell’s surprise when he reached the
bottom of the stairway, Sergeant Gin ordered him to stop and put his hands up.
At this point, Cornell surrendered without any protest or struggle. He raised his
hands as directed, but Sergeant Gin testified that as Cornell began walking up the stairs
he lowered his right hand to shoulder height, at which point Sergeant Gin drew his gun
and ordered him to the ground. Cornell again complied. As he lay prone on the steps,
Officers Bodisco, Brandt and Farrell arrived, and Officer Bodisco handcuffed him, with
the cuffs binding his hands behind his back. Cornell remained cooperative and compliant
throughout the handcuffing process.
Upon being handcuffed, Cornell was not advised he was under arrest or the basis
of the arrest. None of the officers dispute, however, that he was under arrest. Having
made the arrest, the officers conducted a full search incident-to-arrest. The search turned
up nothing except Cornell’s police identification and a standard-issue set of handcuffs in
his back pocket. It was not until this point—some seven minutes after the initial
encounter on Hippie Hill—that Cornell told the arresting officers he was a police officer
and that he was just out for a run. When asked where his gun was, Cornell said it was in
his truck, which was parked near Stowe Lake. Sergeant Gin decided at this point to take
Cornell to Park Station for further interrogation. Cornell was then escorted up the steps
and loaded into the back of a transport wagon, still bound in handcuffs behind his back.
As Cornell was being driven to Park Station, he began to feel light-headed, had
trouble breathing, and he requested a double set of handcuffs to relieve discomfort. He
repeatedly asked the driver for assistance, but was ignored. After the transport wagon
left, headed for Park Station, several officers conducted a search in Golden Gate Park,
6
looking for incriminating evidence. They found Cornell’s plaid jacket discarded in the
bushes, but there was nothing in it. They also located Cornell’s truck, which was parked
on Conservatory Drive, some distance from Stowe Lake where Cornell said he parked it;
his gun was inside, where he had indicated it could be found.
Upon arrival at Park Station, Cornell still had not been told why he was under
arrest. Officers Bodisco and Brandt surreptitiously recorded an interview of him and
during the questioning Officer Brandt told Cornell “[y]ou’re going to end up hanging
yourself pretty hard by lying. I can tell you that right now.” Cornell’s repeated question,
“What’s the charge?,” went unanswered. Responding to Cornell’s insistence that he had
been unaware he was being pursued by police and that no officer ever issued a command
to stop running, Officer Brandt accused him of being a “professional”—meaning
someone who has an “extensive history of criminal misconduct” who seeks to “work the
system for their benefit”—and brushed off Cornell’s denial of wrongdoing with the
comment, “you can talk to them downtown.”
While held in custody at Park Station, Cornell was handcuffed to a bench in full
view of many officers, the “entire watch” as he put it, and he overheard several of them
chuckling about him being a field officer trainee, which elicited comments such as “not
anymore” and “another one bites the dust.” Cornell continued to report being in physical
distress while at Park Station, so paramedics were called, and he was taken to a hospital.
In the ambulance, while the paramedics were taking Cornell to the hospital, Officer
Brandt arranged to place a hidden audio recording device near him, “because [he] might
say something stupid.” The recording captured nothing incriminating. At the hospital, a
sample of Cornell’s blood was taken and tested for the presence of narcotics. The blood
draw was negative.
Upon receiving medical clearance at the hospital, Cornell was returned to Park
Station, where he was eventually released at 1:50 p.m., after nearly six hours in custody.
While processing him for release, Officer Brandt said to Cornell “you know the drill” and
7
handed him a misdemeanor citation accusing him of violating Penal Code section 148,
subdivision (a), for resisting or delaying an officer in the course of his duties. The
citation, signed by Officer Bodisco, and approved by Sergeant Gin, specified Hippie Hill
as the location of the offense. No criminal charges were ever brought, but two days later,
pursuant to a policy requiring termination for misconduct of any officer trainee—trainees
are probationary employees—the San Francisco Police Department summarily released
Cornell from its employ, ending his career as a San Francisco police officer and
effectively disqualifying him from obtaining a law enforcement position with other
departments or agencies.
B. Claims and Trial Proceedings
Cornell brought this action against Officers Brandt, Bodisco and Farrell, Sergeant
Gin, San Francisco Police Chief George Gascon, and the City and County of San
Francisco (the City). In his complaint, as amended, he pleaded claims for violation of
Section 52.1, negligence, assault and battery, false arrest and imprisonment, and tortious
interference with contract and/or economic advantage.4 The remaining defendants at
trial—and the appellants here—were Officer Brandt, Officer Bodisco, Officer Farrell,
Sergeant Gin, and the City.
The case was tried to a jury over the course of 23 trial days in October and
November 2013. At the close of the evidence, jury deliberations were bifurcated into two
phases, with the first phase addressing the claims of assault and false arrest. A special
verdict form for Phase I presented a series of 18 questions, beginning with a question
asking the jury to decide whether Cornell had proved his assault claim, followed by a
4
Prior to trial, the court granted summary judgment to Chief Gascon because there
was no evidence of his personal involvement in the alleged acts giving rise to liability. It
initially granted summary adjudication to all defendants on Cornell’s Section 52.1 claim,
but due to an intervening change in the applicable law, reconsidered that ruling and
granted Cornell leave to amend, resulting in a second amended complaint upon which the
case was tried.
8
series of 17 factual questions pertinent to the legal issue of probable cause to arrest.5 The
court adopted this bifurcated mode of submitting the case to the jury based on the
expectation that the Phase I findings would dictate what, if anything, remained to be
decided in Phase II.
After a day and a half of Phase I deliberations, the jury reported being “hopelessly
stuck” on two of the questions submitted to it. The court admonished the jury to keep
trying. Late that afternoon, a Friday, the jury again reported it was still stuck on two
questions, this time adding that there was “no other testimony or evidence that will
change any of our minds.” With the jury at an impasse, the court recessed for the
weekend, after first excusing a juror who had a schedule conflict and substituting an
5
The specific questions, crafted jointly by the parties with input from the court,
were as follows: (1) Do you find by a preponderance of the evidence that a defendant
assaulted plaintiff? (2) Did either or both Officer Brandt or Bodisco see Cornell running
across Sharon Meadow before they saw him on Hippie Hill? (3) Was Hippie Hill known
to Officer Brandt and Bodisco as a high crime area? (4) Was it reasonable for the officers
to believe that Cornell had come out of the bushes on Hippie Hill? (5) Did the officers
have knowledge of the types of criminal activity in the Hippie Hill area that could lead
them to believe that Cornell may be involved in criminal activity near Hippie Hill?
(6) Did the officers reasonably believe that Cornell appeared nervous or evasive on
Hippie Hill because of the presence of the officers? (7) Did the officers do or say
anything on Hippie Hill that would have communicated to Cornell that they wanted to
contact him? (8) Did the officers reasonably believe that Cornell fled from them on
Hippie Hill? (9) Did the officers reasonably believe that Cornell removed his jacket to
change his appearance in order to avoid detention? (10) Did the officers observe Cornell
run off trail through the bushes? (11) Were Officer Brandt’s only words said to Cornell,
“I will shoot you!”? (12) Did Officer Brandt or Farrell do or say anything on the path
above the AIDS Memorial Grove that would have communicated to Cornell that they
wanted him to stop? (13) Did the officers see Cornell glance back on the path above the
AIDS Memorial Grove? (14) Did the officers reasonably believe that Cornell knew or
should have known that they were police officers? (15) Did Officer Farrell see Officer
Brandt pointing his gun in Cornell’s direction? (16) Would an objectively reasonable
officer believe that Cornell ran away from Officer Brandt in order to resist the use of
unreasonable force? (17) Did Cornell go down the hill into the Grove accidentally or
intentionally? (18) Was it reasonable for the officers to believe that Cornell went down
the hill into the Grove with the intent of evading them?
9
alternate juror. The reconstituted jury began deliberations anew the following week, but
after two additional days of deliberating, remained hung, though on only one question.
The court decided to take the Phase I verdict at that point despite the unanswered
question, over an objection from the defense.6
In its Phase I verdict, the jury found unambiguously for the appellants on the
assault claim. Beyond that, however, the results were mixed, with some findings tending
to favor the officers’ version of events, and some findings tending to favor Cornell’s
version. In the findings favorable to Cornell, the jury found that Officers Brandt and
Bodisco never said anything or otherwise communicated to Cornell their desire to speak
to him on Hippie Hill; that it was not reasonable for them to believe Cornell had come
out of the bushes on Hippie Hill; and that, contrary to Officer Bodisco’s testimony, they
did not see Cornell run off trail through the bushes when he left Hippie Hill. The jury
deadlocked on the question whether it was reasonable for Officers Brandt and Bodisco to
believe Cornell fled from them on Hippie Hill.
In the findings favoring the defense, on the other hand, the jury found that Officers
Bodisco and Brandt considered Hippie Hill to be a high crime area; that the officers’
knowledge of the types of crimes committed there “could lead them to suspect” Cornell
may have been engaged in criminal activity; that the officers reasonably believed that
Cornell appeared “nervous or evasive” when he saw them; that they reasonably believed
Cornell shed his jacket in an effort to avoid being detected; that when Officers Brandt
and Farrell encountered Cornell on the High Path, they reasonably believed he knew they
were police officers; that a reasonable officer would not have believed Cornell was
fleeing from the use of unreasonable force against him by Officer Brandt; that, contrary
6
Defense counsel objected “for the record” to this procedure and insisted upon
answers to all of the Phase I special verdict questions. In a colloquy with the court when
the jury first reported an impasse on November 8, counsel had previously taken the
position the court had discretion to decide “what facts the Court needs to make” a
probable cause determination.
10
to Cornell’s testimony, he went down the hill from the High Path into the AIDS
Memorial Grove intentionally, not accidentally; and that it was reasonable for the officers
to believe he was trying to evade capture in doing so.
Based on the jury’s Phase I findings, the court ruled as a matter of law that
defendants did not have reasonable suspicion to detain Cornell and that he was arrested
without probable cause. In the hiatus between Phases I and II, the defense stipulated to
liability on the part of all defendants on the negligence claim, leaving only the tortious
interference with economic advantage claim and the Section 52.1 claim for decision in
Phase II. Moving on to the next phase of the jury deliberations, the court posed a series
of Phase II questions pertaining to these two claims and to issues of causation and
damages on all claims. With liability for false arrest and negligence established in Phase
I, the jury returned a Phase II special verdict finding liability on the tortious interference
and Section 52.1 claims,7 awarding total damages of $575,231, including $234,007 in
past economic damages, $266,224 in future economic damages, and $75,000 in past non-
economic damages, with judgment entered accordingly.8 The court then granted
Cornell’s motion to tax costs, awarding him $2,027,612.75 in attorney’s fees under
Section 52.1.
These timely appeals followed, from the judgment and from the attorney’s fee
award.
8
In the Phase II verdicts, the jury found liability against only Officers Brandt and
Bodisco on the intentional interference claim and against only Officer Brandt and
Sergeant Gin on the Section 52.1 claim. Based on the verdicts for Phase I and Phase II
and on the stipulation by all appellants to liability for negligence, judgment was entered
against all appellants on the false arrest claim and the negligence claim, against Officer
Brandt, Sergeant Gin and the City on the Section 52.1 claim, against Officers Brandt and
Bodisco on the intentional interference with economic relations claim, and in favor of all
appellants on the assault claim. The judgment awards the total damages jointly and
severally against all appellants.
11
II. DISCUSSION
A. Probable Cause to Arrest
Where the facts are not in conflict, the issue of probable cause is a question of law
reviewable de novo on appeal. (Giannis v. City and County of San Francisco (1978) 78
Cal. App. 3d 219, 225; People v. Tyler (1961) 193 Cal. App. 2d 728, 735.) We look to
whether facts known to the arresting officer “at the moment the arrest was made” (Beck v.
Ohio (1964) 379 U.S. 89, 90) “ ‘would persuade someone of “reasonable caution” that
the person to be arrested has committed a crime.’ ” (People v. Zaragoza (2016) 1 Cal.5th
21, 57; see Dunaway v. New York (1979) 442 U.S. 200, 208, fn. 9.) “The rule of probable
cause is a practical, nontechnical conception” that turns on an assessment of the facts
gathered by the arresting officer in the field (Brinegar v. United States (1949) 338 U.S.
160, 176) and is not governed by courtroom standards of proof. (Ibid.) Many verbal
formulae have been used to describe it, but distilled to their essence “ ‘[t]he substance of
all the definitions . . . is a reasonable ground for belief of guilt’ ” (id. at p. 175), where the
belief is “particularized with respect to the person to be . . . seized.” (People v.
Thompson (2006) 38 Cal. 4th 811, 818.)
The legal standard we apply to assess probable cause is an objective one in which
the subjective motivations of the arresting officers have no role. (Whren v. United States
(1996) 517 U.S. 806, 813; Gillan v. City of San Marino (2007) 147 Cal. App. 4th 1033,
1045 (Gillan); Johnson v. Lewis (2004) 120 Cal. App. 4th 443, 454.) But it is an
overstatement to say that what is in the mind of an arresting officer is wholly irrelevant,
for the objective test of reasonableness is simply a measure by which we assess whether
the circumstances as subjectively perceived by the officer provide a reasonable basis for
the seizure. (Agar v. Superior Court (1971) 21 Cal. App. 3d 24, 29; see Devenpeck v.
Alford (2004) 543 U.S. 146, 153.)
Of course, temporary detention on grounds short of probable cause is also
constitutionally permissible in some circumstances. (Terry v. Ohio (1968) 392 U.S. 1,
20–21, 27.) A “brief, investigatory stop” is justified where an officer has “reasonable,
articulable suspicion that criminal activity is afoot,” implicating the suspect. (Illinois v.
12
Wardlow (2000) 528 U.S. 119, 123 (Wardlow); see In re Tony C. (1978) 21 Cal. 3d 888,
893.) While the more demanding standard of probable cause requires a basis to suspect
someone of having committed a particular crime, reasonable suspicion to detain only
requires facts connecting the suspect to “criminal activity” more generally. (People v.
Campbell (1981) 118 Cal. App. 3d 588, 594.) Like the probable cause determination, the
applicable test courts use to assess reasonable suspicion is an objective one, specific to
the detainee. (People v. Perrusquia (2007) 150 Cal. App. 4th 228, 233.)
Our Supreme Court recently explained that “ ‘[a] detention is reasonable under the
Fourth Amendment when the detaining officer can point to specific articulable facts that,
considered in light of the totality of the circumstances, provide some objective
manifestation that the person detained may be involved in criminal activity.’ [Citation.]
Such reasonable suspicion cannot be based solely on factors unrelated to the defendant,
such as criminal activity in the area.” (People v. Casares (2016) 62 Cal. 4th 808, 837–
838 (Casares).) Reasonable suspicion must rest on objective particulars tying a
particular person to criminal activity, rather than on a mere “hunch” that something is
odd or unusual about the person detained. (Id. at p. 838; see People v. Bower (1979) 24
Cal. 3d 638, 647 [officer’s suspicions about white man found late at night in a “high
crime,” largely black neighborhood insufficient to justify detention where the officer
testified he had never seen a white person in that area at that time “for an innocent
purpose”].)
Cornell was arrested for the offense of “willfully resist[ing], delay[ing], or
obstruct[ing] [a] . . . peace officer . . . in the discharge . . . [of a] duty of his or her office”
under Penal Code section 148, subdivision (a). To violate this statute, the obstructive
conduct must impede the lawful performance of an officer’s duty. (People v. Curtis
(1969) 70 Cal. 2d 347, 354; People v. Rodriguez (2012) 207 Cal. App. 4th 1540, 1543.)
Thus, the analysis here focuses, at its core, on whether there was reasonable suspicion
justifying Cornell’s detention at any point between the time he was spotted on Hippie Hill
and the time he was arrested in AIDS Memorial Grove. If there was not, Officers Brandt
and Bodisco—and their fellow officers, since all of the officers involved in pursuing
Cornell constructively shared the same pool of information under the collective
13
knowledge doctrine9—were acting outside the lawful course of their duties when they
sought to detain him. That analysis drives the probable cause analysis, for if there was no
objectively reasonable basis to believe Cornell had violated Penal Code section 148,
subdivision (a) or any other law, probable cause to arrest was lacking as well. (Casares,
supra, 62 Cal.4th at p. 838 [“The detention being unlawful, the subsequent searches of
defendant’s person and the car he had been sitting in were also unlawful.”].)
We agree with the trial court that there was no reasonable suspicion to detain and
hence no probable cause to arrest. This incident took place in broad daylight in one of
the most heavily used public recreation areas in San Francisco. The jury found that when
the chase commenced, Officers Brandt and Bodisco knew little more than that they had
seen Cornell at a location where drug crimes often took place, but with nothing
connecting him to any criminal activity. The man had nothing in his hands, made no
furtive movements, and was speaking to no one. Nothing about the way he was dressed
indicated he might be hiding something under his clothing, and Officers Brandt and
Bodisco gave him no directions that he disobeyed. (See Casares, supra, 62 Cal.4th at
p. 838 [“[officer] described no furtive movement or other behavior by defendant
suggestive of criminal activity”].) They did not claim they recognized Cornell as
someone with previous involvement in criminal activity. They had no tip that a drug
transaction was about to take place in which he fit the description of someone likely to be
involved. And they saw no activity on Hippie Hill, by anyone, indicating that drug
activity was currently taking place or about to take place there.
On the strength of testimony from Officer Bodisco that Cornell “looked worried”
and avoided making eye contact with him and his partner, the jury found the officers
reasonably believed Cornell seemed “nervous or evasive.” But “ ‘[l]ooking at a police
officer and then looking away does not provide the officer with “a particularized and
objective basis for suspecting the person stopped of criminal activity.” ’ ” (People v.
Pitts (2004) 117 Cal. App. 4th 881, 888.) “In general, although eye contact, or the lack
thereof, may be considered as a factor establishing reasonable suspicion, . . . whether the
9
See, e.g., People v. Ramirez (1997) 59 Cal. App. 4th 1548, 1552–1556.
14
contact is suspicious or not ‘is highly subjective and must be evaluated in light of the
circumstances of each case.’ [Citations.] The skepticism with which this factor is treated
is in large part due to the fact that reliance upon ‘suspicious’ looks can so easily devolve
into a case of damned if you do, equally damned if you don’t. [Citations.] Accordingly,
. . . that factor is ‘of questionable value . . . generally.’ ” (United States v. Montero-
Camargo (9th Cir. 2000) 208 F.3d 1122, 1136.)
The jury’s finding that the officers’ knowledge of Hippie Hill as a hotspot for
crime “could lead them to suspect that Cornell may be involved in criminal activity” was
equally true of anyone else in the vicinity. Because these two officers had insufficient
information to do anything more than seek a consensual encounter with Cornell as they
watched him on Hippie Hill (see Casares, supra, 62 Cal.4th at p. 838 [“when . . . officer
initiated the identification procedure, . . . he had no factual basis for a reasonable
suspicion, as opposed to a mere hunch, that defendant was then engaged in any criminal
activity”]), the critical sequence of events took place when the chase began. At that
point, as Officers Brandt and Bodisco turned their car toward Cornell—without saying
anything over their loudspeaker or otherwise signaling an intent to approach—Cornell
was already walking away, which he was entitled to do. (See People v. Souza (1994) 9
Cal. 4th 224, 234 (Souza) [“a person approached by police for questioning may decline to
answer the questions and ‘may go on his way’ ”].) Even assuming Cornell was
deliberately trying to avoid Officers Brandt and Bodisco as he ran off, that did not change
things. Not every effort to avoid an encounter with police warrants detention. If it did,
anyone who turns off the freeway in haste after spotting a police car in the rearview
mirror could be stopped for trying to avoid being pulled over.
Pointing to the fact Cornell shed his jacket after starting to run, a move the jury
found gave Officers Brandt and Bodisco reasonable grounds to believe he was trying to
“avoid detection,” appellants emphasize that evasive flight can provide reasonable
suspicion, especially when the experience of officers with crime in a particular area
connects a fleeing person to illicit activity. It is true that, in a high crime area,
“unprovoked flight upon noticing the police” may provide reasonable suspicion in some
circumstances (Wardlow, supra, 528 U.S. at p. 124), and that “headlong flight wherever
15
it occurs”—which can be considered the “consummate act of evasion”—will justify a
stop. (Ibid.) But the High Court has declined to adopt a “ ‘bright-line rule’ authorizing
the temporary detention of anyone who flees at the mere sight of a police officer.” (Id. at
p. 126 (conc. & dis. opn. of Stevens, J.)), favoring instead a totality of the circumstances
approach that requires consideration of flight along with other objective indicators
connecting a suspect to criminal activity. (See also Souza, supra, 9 Cal.4th at p. 239
[“No single fact—for instance, flight from approaching police—can be indicative in all
detention cases of involvement in criminal conduct. Time, locality, lighting conditions,
and an area’s reputation for criminal activity all give meaning to a particular act of flight,
and may or may not suggest to a trained officer that the fleeing person is involved in
criminal activity. Consequently, a ‘bright-line’ rule applicable to all investigatory stops
. . . would be improper.”].)
What is important here is whether the circumstances known to the officers, in
totality, connected Cornell to suspected criminal activity, not whether, as a standalone
matter, they perceived him to be fleeing from them when he began to run. The jury made
no finding, and there was no evidence, that Cornell was carrying something Officers
Brandt and Bodisco thought could be contraband and discarded it as he ran. Nor was
there any finding that Cornell was desperate, panicked or in “[h]eadlong flight”
(Wardlow, supra, 528 U.S. at p. 124), suggesting consciousness of guilt. The special
verdict questions bearing on how Cornell ran, to be sure, are somewhat ambiguous, but in
interpreting them—after considering the same evidence the jury did—the trial court’s
ultimate legal conclusion shows it read the findings as accepting Cornell’s version of
what happened at the start of the chase (after a “cool down” break he resumed his run
along a pedestrian path, removed his jacket while running, and took enough time along
the path to fold it and place it on a nearby stump), rather than the officers’ version (he
suddenly broke into a “full blown sprint,” ran off-trail, and “dumped” his jacket while
running through the bushes).10 Because the findings suggest the jury saw key details in
10
The trial court’s function is to draw legal conclusions from the facts found by
special verdict (Code Civ. Proc., § 624), and, unless the findings are incomplete,
16
the officers’ reported perceptions of Cornell at this crucial juncture as embellishments,
we see no reason to disagree that the more benign view of the facts known to them is the
best interpretation of what the jury found.11
Appellants rely heavily on People v. Rodriguez, supra, 207 Cal. App. 4th 1540,
where a man jumped from a car and ran from an officer who was attempting to make a
stop. Another officer who heard a radio broadcast about the fleeing suspect saw him a
minute later, walking nearby. The second officer shined a spotlight on the suspect and
got out of his patrol car, at which point the suspect sprinted away, crossing traffic lanes,
reaching into his pocket while he ran, and then throwing an item over a chain-link fence.
Upon being chased down and detained, the suspect admitted he “knew he was running
from a police officer” but ran because he had “an outstanding warrant and a digital scale
in his pocket.” (Id. at p. 1543.) On these facts the court concluded there was more than
enough justification to detain, closing its opinion with the remark, “This is not a case
where appellant was out for an evening jog.” (Id. at p. 1544, italics added.) Here,
nothing contradicts Cornell’s testimony that he was, in fact, out for a jog. Nor are there
any of the particulars we see in Rodriguez, where the officers had cause to detain at the
outset—in the traffic stop—which led the suspect to flee at a full sprint, putting himself at
risk in traffic while he ran.
Shifting their focus slightly, appellants point to Cornell’s later actions on the High
Path, where he defied an order to stop and launched into a sprint through the woods with
inconsistent or “hopelessly ambiguous”—which is not the case here—the court may
interpret the verdict in view of the pleadings, evidence and instructions. (Woodcock v.
Fontana Scaffolding & Equipment Co. (1968) 69 Cal. 2d 452, 456–457 [trial judge’s
function is to interpret the verdict “ ‘from its language considered in connection with the
pleadings, evidence and instructions’ ”; if trial court’s interpretation is incorrect,
appellate court will interpret the verdict if it is possible to give a correct interpretation].)
We review any such interpretation de novo. (Ibid.)
11
The jury answered “No” to Question No. 10, which indicates it did not find
credible the testimony from Officer Bodisco that Cornell ran off-trail through the bushes,
consistent with its earlier “No” response to Question No. 4, indicating it had also rejected
the officers’ testimony that they believed Cornell emerged from the bushes at the top of
Hippie Hill when they first saw him.
17
desperate abandon, scrambling down the side of a hill into the AIDS Memorial Grove.
This sequence of events on the High Path, they say, was part of a fluid series of events
leading up to the moment of arrest. By then, appellants contend, the jury’s findings
establish without doubt that Cornell was in full flight, clearly indicating consciousness of
guilt. They argue that, given the evolving nature of the situation, we must not limit the
question to what Officers Brandt and Bodisco knew at the outset of the chase, but must
consider all the circumstances known to them prior to Cornell’s surrender. We agree, but
the problem for appellants is that what happened on the High Path was provoked. The
jury’s finding that Officers Brandt and Farrell reasonably perceived Cornell to be running
away from them at that point does not negate the obvious: Foolishly or not, Cornell ran
away at the point of a gun and a threat of “I will shoot you.” Other than this panicked
reaction—which Officer Brandt brought about—there was no greater cause to detain
Cornell on the High Path than there was on Hippie Hill.12
Granted, the better and certainly the safer course for Cornell was to surrender on
the High Path, but in order for his defiance to constitute a violation of Penal Code section
148, Officers Brandt and Farrell still had to be acting in the lawful performance of their
duties, which places the focus back on what happened at the beginning of the chase.
Because Officers Brandt and Bodisco did not have reasonable suspicion to detain in the
first place, the trial court properly concluded that none of the appellant officers acted in
the lawful course of his duties at later points in time. Thus, when Cornell darted away on
the High Path, it made no difference whether he took off out of fright, still unaware he
was being chased by police officers (as he claims), or out of a desire not to be caught,
despite having looked straight at two uniformed officers, in defiance of their command to
12
We might have been inclined to conclude otherwise if the jury had found that
Cornell, in reaction to a command from Officer Brandt to stop, had committed some
crime posing a threat to any of the appellant officers or to the public. Under Brown v.
Illinois (1975) 422 U.S. 590, that would have attenuated the taint of the unjustified
attempt to detain him. But merely fleeing on foot from a show of force does not bring
Brown doctrine into play. (United States v. Brodie (D.C. Cir. 2014) 742 F.3d 1058, 1063
[Brown attenuation doctrine not applicable where detainee, in response to officers’ orders
to put his hands on car hood preparatory to a search of his person, “fled on foot, and the
manner of his flight in itself posed no incremental threat to anyone”].)
18
stop (as the officers claim). Officer Brandt chased down and trained a weapon on a
running man about whom he knew virtually nothing, except that this was someone who
had the temerity to try to elude capture. Without something objectively tying him to
criminal activity, we conclude that none of the appellant officers had a legal basis to
detain—much less probable cause to arrest—on Hippie Hill, on the High Path, or in
AIDS Memorial Grove.
B. Incomplete Phase I Special Verdict
In addition to claiming there was reasonable suspicion to detain and thus probable
cause to arrest, appellants challenge the Phase I verdict on procedural grounds. After
many days of deliberation in Phase I, and after the jury had sent multiple messages to the
court asking about specific questions posed on the Phase I Verdict Form, and after
repeatedly reporting an inability to reach a verdict on a number of those questions, the
jury finally managed to reach a verdict on all but one question, Question No. 8.
Appellants argue that this question—which asked the jury to find whether Officers
Brandt and Bodisco reasonably believed Cornell was fleeing from them when he began
running on Hippie Hill—was so material to the issue of reasonable suspicion that it was
reversible error to accept the Phase I verdict without an answer to it. On that basis, they
contend it was an abuse of discretion to deny their motion for a mistrial. We cannot
agree.
Even assuming the acceptance of an incomplete Phase I Verdict Form was error,
we do not see the factual issue presented by Question No. 8 as so material to the total mix
of facts that it would have changed the outcome on the issue of reasonable suspicion had
it been decided in favor of appellants. Cornell would have been entitled to walk away
had the officers approached him on Hippie Hill, as we note above. Our analysis of the
circumstances when he left Hippie Hill assumes Officers Brandt and Bodisco did
perceive he ran from them, as they testified, and as Question No. 8 asked the jury to find,
but even granting that assumption we do not think the totality of what they knew at that
stage points to anything more than a hunch that he could have had some connection to
criminal activity on Hippie Hill. We thus conclude the court did not abuse its discretion
by denying appellants’ motion for a mistrial. (See Blumenthal v. Superior Court (2006)
19
137 Cal. App. 4th 672, 679 [“ ‘A trial court should grant a mistrial only when a party’s
chances of receiving a fair trial have been irreparably damaged, and we use the
deferential abuse of discretion standard to review a trial court ruling denying a
mistrial.’ ”)
C. Statutory Immunity Under Penal Code Section 847, Subdivision (b)
Next, appellants argue we should reverse because the trial court never
“specifically addressed” whether the appellant officers are statutorily immune for the
false arrest of Cornell. Penal Code section 847, subdivision (b) provides that “[t]here
shall be no civil liability on the part of, and no cause of action shall arise against, any
peace officer . . . , acting within the scope of his or her authority, for false arrest or false
imprisonment arising out of any arrest” under specified circumstances, and one of those
circumstances, set forth in subdivision (b)(1), is that “[t]he arrest was lawful, or the peace
officer, at the time of the arrest, had reasonable cause to believe the arrest was lawful.”
We see no error here either. California courts speak of “reasonable cause” and
“probable cause” interchangeably (Pool v. City of Oakland (1986) 42 Cal. 3d 1051, 1069;
O’Toole v. Superior Court (2006) 140 Cal. App. 4th 488, 510), and appellants cite no case
recognizing any meaningful distinction in the two phrases. The statutory scheme of
which Penal Code section 847 is part,13 much of which was enacted in 1872 as part of the
Field Code, uses both terms without differentiation, and the few cases that apply
subdivision (b)(1)—which first appeared in language added by amendment in 195714—
give no separate consideration to its reach after completing their analyses of probable
cause. (See O’Toole, at pp. 511–513; Hamilton v. City of San Diego (1990) 217
Cal. App. 3d 838, 844 (Hamilton).) Thus, the trial judge here was not alone in perceiving
no need to undertake an analysis of appellants’ statutory immunity argument, separate
from her probable cause analysis.
13
Penal Code Part 2, Title 3, Chapter 5, section 833 et seq.
14
Statute 1957, chapter 2147, section 5, page 3806; Assembly Bill No. 1857,
approved by Governor July 8, 1957 (1957 Reg. Sess.).
20
While novel, appellants’ argument has worthy bona fides. It is based on a reading
of the language of Penal Code 847, subdivision (b), that was first advocated in 1963 by
the eminent scholar of governmental immunity in California, Professor Arvo Van
Alstyne. Focusing his attention on the fact that the statute, by its literal terms, affords
immunity for false arrest if “the arrest was lawful, or the peace officer, at the time of the
arrest, had reasonable cause to believe the arrest was lawful” (italics added), Professor
Van Alstyne argued that the disjunctive phrase “reasonable cause to believe” would be
surplusage if it did not defeat liability for unlawful arrests as well as lawful ones. (See
“A Study Relating to Sovereign Immunity” (Jan. 1963) 5 Cal. Law Revision Com. Rep.
(1963), at pp. 407–408 (1963 Van Alstyne Study).) To trigger the protection of the
statute, he argued, an officer should only be required to show he in fact believed the
arrest was justified. (Id. at p. 408.)15
Giving a modern twist to what was, in effect, a call for immunity by Professor Van
Alstyne based on a standard of subjective good faith, appellants suggest we read into
Penal Code section 847, subdivision (b), the federal standard for qualified immunity that
has evolved in the last three decades, which is based on an objective appraisal of whether
an officer facing civil suit violated “clearly established” law, and is not simply a test of
subjective good faith. (See Estate of Lopez v. Gelhaus (9th Cir. 2017) 871 F.3d 998,
1005, 1017–1018.) This immunity doctrine, developed by the federal courts in the
context of Fourth Amendment claims under 42 U.S.C. section 1983 (Section 1983),
deriving it from the common law with no statutory foundation, is purely judge-made.
(Anderson v. Creighton (1987) 483 U.S. 635, 645 (Anderson); see Harlow v. Fitzgerald
15
“At the Legislature’s request, the California Law Revision Commission
submitted a comprehensive report in 1963, which gave rise to the statutory system that
now governs the field of public entity tort liability. . . .[¶] Professor . . . Van Alstyne was
the California Law Revision Commission’s chief consultant and much of his work gave
rise to the present statutory system.” (Mary M. v. City of Los Angeles (1991) 54 Cal. 3d
202, 229 (conc. opn. of Baxter, J.) “The 1963 study was authored by Professor . . . Van
Alstyne and represented [his] views . . . and not necessarily those of the Law Revision
Commission. (1963 Van Alstyne Study, supra, 5 Cal. Law. Revision Com. Rep. at p. 5,
fn.*.)” (Property Reserve, Inc. v. Superior Court (2016) 1 Cal.5th 151, 182, fn. 10.)
21
(1982) 457 U.S. 800, 813-819; Pierson v. Ray (1967) 386 U.S. 547, 557.) Citing
Venegas v. County of Los Angeles (2007) 153 Cal. App. 4th 1230 (Venegas II),16 Cornell
contends the federal common law doctrine of qualified immunity “does not apply at all to
state law claims, specifically false arrest claims,” but he never specifically engages with
appellants’ reading of the text of section 847, subdivision (b).
Cornell is correct that Venegas II held that the federal qualified immunity “does
not apply to actions brought under . . . [S]ection 52.1” (153 Cal.App.4th at p. 1246), but
the appellate panel in that case took care to mention it was not addressing “whether a
statutory immunity might apply.” (Ibid.) We understand appellants to be taking up the
issue left open there, using Penal Code section 847 as the statutory basis for their
argument, while, in effect, bringing in federal qualified immunity, so to speak, “through
the back door.” Even if we were receptive to the idea of introducing federal qualified
immunity into California law in this fashion despite the holding in Venegas II—we are
not, since we view that opinion as soundly reasoned—we reject the premise that Penal
Code section 847, subdivision (b)(1) adds an extra layer of protection beyond what is
already afforded by the doctrine of probable cause. Because nothing in the statutory
scheme for official immunity in California alters the rule that “[u]nder California law, a
police officer is not granted governmental immunity for false arrest and imprisonment”
(O’Toole, supra, 140 Cal.App.4th at p. 510), we see no basis to borrow the federal rule of
qualified immunity absent specific legislative authorization.
We do not agree that Penal Code section 847 provides that authorization.
Subdivision (b)(1) of Penal Code section 847 is coextensive with the doctrine of probable
cause (Hamilton, supra, 217 Cal.App.3d at p. 846), but goes no further. Since at least the
16
Venegas II is one of a series of appellate opinions arising out of a suit brought
by plaintiff David Venegas against the County of Los Angeles and various deputies of the
Los Angeles Sheriff’s Department seeking damages in connection with his alleged
wrongful detention and arrest. It was decided on remand following the California
Supreme Court’s opinion in Venegas v. County of Los Angeles (2004) 32 Cal. 4th
820, 843 (Venegas), which, as we discuss below, is central to our analysis of the
appellant’s claim of error in connection with the Section 52.1 verdict here.
22
early 1950s, it has been settled that a “police officer who makes an arrest without a
warrant and without justification may be held civilly liable for false arrest and
imprisonment.” (Dragna v. White (1955) 45 Cal. 2d 469, 471 (Dragna).)17 When the
language of Penal Code section 847, subdivision (b) was added to the Penal Code by
amendment in 1957, nothing in the legislative history suggests it was intended to reverse
or supersede Dragna. Quite to the contrary, what little discussion there was of this
specific amendment as Assembly Bill No. 1857 moved through the Legislature indicates
it was understood as a codification of then-existing law. (See Sen. Interim Judiciary
Com. (1955–1957), Fourth Progress Report to the Legislature, Rep. on Assem. Bill No.
1857, at p. 427 [Senate Interim Judiciary Committee Report], quoting statement of the
District Attorneys Association concerning Assembly Bill No. 1857 [“[t]his bill seeks to
amend the Penal Code sections on arrest—to make them reflect the law of arrest as
declared and interpreted by the appellate courts of California—and to incorporate parts of
the Uniform Arrest Act, with the intention that the statutory law of California shall be a
17
(See also Miller v. Glass (1955) 44 Cal. 2d 359, 363; Hughes v. Oreb (1951) 36
Cal. 2d 854.) Even in their era, the Dragna line of cases did not break new ground. They
simply applied in the setting of unlawful arrest and false imprisonment the firmly rooted
common law principle that where a law enforcement officer engages in tortious acts
within the scope of his office, he is acting under color of law—meaning under pretense of
legal authority, even though his acts are illegal—and thus he may be held liable in tort.
(Abbott v. Cooper (1933) 218 Cal. 425, 432 [“[W]here a person holding the office of
sheriff or constable does acts colore officii, though he had no sufficient warrant to do the
act, he is responsible to third persons in an action for a breach of official duty. Such a
rule is declared to be supported by the weight of authority.”]; see Steven L. Winter, The
Meaning of “Under Color of” Law (1992) 91 Mich. L.Rev. 323, at pp. 342–346
[common law origins of the concept of extra-legal official conduct undertaken “under
color of law”].) The same concept has long been accepted in law enforcement
misconduct cases under federal civil rights law. (Monroe v. Pape (1961) 365 U.S. 167,
181–187, overruled on other grounds in Monell v. Department of Social Services of City
of New York (1978) 436 U.S. 658.)
23
true, accurate and concise guide to the substantive rights and duties of peace officers and
citizens alike”]; id. at p. 430 [citing Dragna as established law]).18
The surplusage argument on which appellants’ proffered interpretation of Penal
Code section 847 hinges, echoing Professor Van Alstyne, is not persuasive. The
legislative history makes clear why section 847, subdivision (b) uses the disjunctive in
referring to a “lawful” arrest “or” an arrest made on “reasonable cause to believe the
arrest was lawful.” The alternative “reasonable cause” scenario tracks a secondary
holding of the Dragna case, which addresses liability for unreasonably prolonged jail
detention prior to arraignment. (See Dragna, supra, 45 Cal.2d at p. 473 [“where the
arrest is lawful, subsequent unreasonable delay in taking the person before a magistrate
will not affect the legality of the arrest, although it will subject the offending person to
liability for so much of the imprisonment as occurs after the period of necessary or
reasonable delay.”].) Thus, the Senate Interim Judiciary Committee Report, citing
Dragna, explains that, “present legal thinking [citation] indicates that while an arrest,
based upon reasonable cause, is lawful, . . . a subsequent detention could be unlawful.
Such would be the case if after arrest, but before the arraignment, the arresting officer
18
In response to the California Supreme Court’s landmark decision recognizing
the exclusionary rule in People v. Cahan (1955) 44 Cal. 2d 434, Assembly Bill 1857 was
an effort to update and clarify the statutory rules governing arrest in California. (Senate
Interim Judiciary Committee Report at pp. 437, 439; see House Resolution No. 184 (May
19, 1955) [discussing Cahan as the impetus for the bill].) Objections to Assembly Bill
No. 1857 focused primarily on the fact that, for the first time, broad legislative
recognition was being given to the power of warrantless detention in circumstances short
of arrest. (See Senate Interim Judiciary Committee Report at pp. 445–447 [quoting
comments of the State Bar of California conveyed by letter dated June 4, 1957 from
Joseph A. Ball, State Bar President, to Hon. Patrick D. McGee, Chairman of the
Assembly Judiciary Committee and sponsor of Assem. Bill No. 1857].) On our own
motion, under Evidence Code sections 452, subdivision (c) and 459, we take judicial
notice of the above-cited legislative history materials, since committee reports and
legislative resolutions are “indicative of the intent of the Legislature as a whole.”
(Metropolitan Water Dist. v. Imperial Irrigation Dist. (2000) 80 Cal. App. 4th 1403, 1425,
italics omitted (Metropolitan Water).)
24
learn[s] of facts which destroy[] the belief upon which his reasonable cause was based.”
(Senate Interim Judiciary Committee Report, supra, at p. 430.)
Understood within the context provided by the legislative history, therefore, the
reference to both “lawful arrest” and arrest on “reasonable cause” in section 847,
subdivision (b)(1), is not surplusage. It is simply descriptive of the two-part holding in
Dragna that the Legislature recognized as foundational. Shorn of its textual premise, the
policy rationale for Professor Van Alstyne’s reading of the statutory language—that
peace officers should have protection from civil liability for arrests made upon reasonable
mistake—is already fundamental to the modern concept of probable cause and its close
cousin reasonable suspicion. Without clear and definite legislative authorization, we are
not inclined to announce that, after all these years, we have discovered in section 847,
subdivision (b) an additional layer of protection from civil liability beyond what already
exists through the doctrine of probable cause, or to use section 847 as the statutory basis
for importing federal qualified immunity into California law.19
D. Section 52.1 Claim
1. The Bane Act
On the recommendation of a commission appointed by then Attorney General
John Van de Kamp, the Tom Bane Civil Rights Act (Stats.1987, ch. 1277, §§ 3–4,
19
It is worth noting that the High Court’s decision to create for law enforcement
officers the added level of protection against Section 1983 liability provided by the
doctrine of qualified immunity was announced by a closely divided 5-4 vote, over a
vigorous dissent from Justice Stevens, who pointed out that such an immunity is
unnecessary because “the probable-cause standard itself recognizes the fair leeway that
law enforcement officers must have in carrying out their dangerous work. The concept of
probable cause leaves room for mistakes, provided always that they are mistakes that
could have been made by a reasonable officer.” (Anderson, supra, 483 U.S. 635, 661
(dis. opn. of Stevens, J.); id. at p. 659 [referring to the new rule as a “double standard of
reasonableness”].) And as recently as this past High Court term, sharp criticism of the
qualified immunity doctrine from at least one current member of the Court has been
expressed. (See Ziglar v. Abbasi (2017) 582 U.S. __, 137 S. Ct. 1843, 1871 (conc. opn. of
Thomas, J.) [“Our qualified immunity precedents . . . represent precisely the sort of
‘freewheeling policy choice[s]’ that we have previously disclaimed the power to
make.”].)
25
pp. 4544–4548) (the Bane Act) was enacted in 1987 “as part of a comprehensive package
of legislation to combat hate crimes.” (Venegas II, supra, 153 Cal.App.4th at p. 1242.)20
The Bane Act is enforceable criminally, under Penal Code section 422.6 (In re M.S.
(1995) 10 Cal. 4th 698, 713, 715), and civilly, under Section 52.1 (Jones v. Kmart Corp.
(1998) 17 Cal. 4th 329 (Jones).) While Penal Code section 422.6 is focused specifically
on hate crimes as conventionally understood (i.e. acts of violence or intimidation aimed
at members of statutorily protected groups), Section 52.1 sweeps much more broadly,
protecting against all conduct aimed at “ ‘interfer[ing]’ ” with rights “ ‘secured by’ ” the
constitutional or statutory law of the United States, or of California, where the
interference is carried out “by threats, intimidation or coercion,” whether or not the
offending conduct is motivated by discriminatory animus. (Venegas, supra, 32 Cal.4th at
p. 843.)21
The centerpiece of civil enforcement under the Bane Act is subdivision (a) of
Section 52.1, which provides, “If a person or persons, whether or not acting under color
20
(See Attorney General’s Com. on Racial, Ethnic, Religious and Minority
Violence, Final Report (April 1986) (Final Report of the Van de Kamp Commission);
Assem. Bill No. 63 (1987–1988 Reg. Sess.); Letter from John H. Van de Kamp to Hon.
Larry Stirling, Chairman, Assembly Public Safety Committee (March 18, 1987) [“This
bill implements the recommendations of the Attorney General’s Commission on Racial,
Ethnic, Religious and Minority Violence . . . .”].) Attorney General Van de Kamp’s letter
to Chairman Stirling is included in the Assembly Public Safety Committee’s bill file for
Assembly Bill No. 63. On our own motion, under Evidence Code sections 452,
subdivision (c) and 459, we take judicial notice of the Final Report of the Van de Kamp
Commission as well as the Van de Kamp letter to Chairman Stirling. (See Aguilar v.
Atlantic Richfield Co. (2001) 25 Cal. 4th 826, 842, fn. 3 [judicial notice of Attorney
General’s report on gasoline pricing proper as an official act of executive department for
use as background material]; Varshock v. Department of Forestry & Fire Protection
(2011) 194 Cal. App. 4th 635, 647 [“The report of a commission that proposes a statute
subsequently adopted is given ‘substantial weight’ in construing the statute . . . .”].)
21
The use of parallel criminal and civil enforcement mechanisms follows the
pattern of post-Civil War federal civil rights legislation. (See 18 U.S.C. § 241 [Section
241] and 18 U.S.C.§ 242 [Section 242], two criminal statutes which were enacted as
sections 6 and 17 of the Enforcement Act of 1870, and their civil counterpart statutes,
respectively, 42 U.S.C. § 1985(3) (Section 1985(3)) and Section 1983, which were
26
of law, interferes by threat, intimidation, or coercion, or attempts to interfere by threat,
intimidation, or coercion, with the exercise or enjoyment by any individual or individuals
of rights secured by the Constitution or laws of the United States, or of the rights secured
by the Constitution or laws of this state, the Attorney General, or any district attorney or
city attorney may bring a civil action for injunctive and other appropriate equitable relief
in the name of the people of the State of California, in order to protect the peaceable
exercise or enjoyment of the right or rights secured. . . .” Private actions by aggrieved
individuals are authorized under Section 52.1, subdivision (b), which provides for
recovery of compensatory and punitive damages, injunctive relief, civil penalties, and
attorney’s fees. “The creation of civil causes of action by victims of . . . conduct” in
violation of Section 52.1 is central to the Bane Act’s enforcement scheme. (Stamps v.
Superior Court (2006) 136 Cal. App. 4th 1441, 1448 [legislative history shows private
actions intended to be “at the heart of the legislation”].)
Claims may be brought under Section 52.1, subdivision (a), against rights-
interfering conduct by private actors as well as by public officials (Jones, supra, 17
Cal.4th at p. 338), including police officers (Simmons v. Superior Court (2016) 7
Cal.App.5th 1113 (Simmons)). The word “interferes” as used in Section 52.1 has been
construed as “violates.” (See Jones, supra, 17 Cal.4th at p. 338 [California Supreme
Court equates “interfere” with “violate”].) “ ‘The essence of a Bane Act claim is that the
defendant, by the specified improper means (i.e., “threats, intimidation or coercion”),
tried to or did prevent the plaintiff from doing something he or she had the right to do
under the law or to force the plaintiff to do something that he or she was not required to
do under the law.’ ” (Simmons, at p. 1125; accord, Austin B. v. Escondido Union School
Dist. (2007) 149 Cal. App. 4th 860, 883.)
enacted as section 19 of the Civil Rights Act of 1875 and section 2 of the Ku Klux Klan
Act of 1871. (See Eugene Gressman, The Unhappy History of Civil Rights Legislation
(1952) 50 Mich L.Rev. 1323, 1333–1334; Frederick M. Lawrence, Civil Rights and
Criminal Wrongs: The Mens Rea of Federal Civil Rights Crimes (1993) 67 Tul. L.Rev.
2113, 2135–2145 & Appendices [tracing the Post-Civil War civil rights statutes as
originally enacted through various recodifications in the United States Code].)
27
The model for Section 52.1 is a similarly worded Massachusetts statute,
Massachusetts Civil Rights Act of 1979 (Mass. Gen. Laws Ann., ch. 12, §§ 11H, 11I)
(MCRA). (Jones, supra, 17 Cal.4th at p. 335.) Some courts interpreting and applying
the MCRA and Section 52.1 have concluded, without close examination, that these
respective statutes are state law analogues to Section 1983. (See Cameron v. Craig (9th
Cir. 2013) 713 F.3d 1012, 1022 [“[T]he elements of the excessive force claim under
§ 52.1 are the same as under § 1983.”]; Batchelder v. Allied Stores Corp. (1985) 393
Mass. 819, 822–823 [473 N.E.2d 1128, 1131] [“the Legislature intended to provide a
remedy under [MCRA], coextensive with 42 U.S.C. § 1983 . . . , except that the Federal
statute requires State action whereas its State counterpart does not”].) In a broad
conceptual sense, that is true, since both Section 52.1 and the MCRA are supplements to
Section 1983, providing state law civil remedies for violation of constitutional and
statutory rights protected by federal as well as state law. But the most similar federal
civil rights statute to Section 52.1, textually and structurally—similar enough to suggest
that it, not Section 1983, was the original template our Legislature drew from—is Section
241. (See Final Report of the Van de Kamp Commission, Chptr. 3, “Proposed California
Civil Rights Act,” at p. 23 & p. 24, fn. 4 [“The Massachusetts Civil Rights Act is
patterned after federal civil rights statutes that protect rights guaranteed by federal laws
and the Constitution,” citing to Section 241, with no mention of Section 1983].)22
22
While the citation to Section 241 in the Final Report of the Van de Kamp
Commission provides fairly clear evidence of the genesis of Section 52.1, the language of
Section 52.1 is also traceable to Section 241 by direct comparison. Section 52.1 adopts
the signature structure of Section 241, which prohibits interference with the “free
exercise” or “enjoyment” of a broadly-defined class of “secured” civil rights. And
Section 52.1, like Section 241, targets the use of fear-inducing conduct to carry out the
interference. Where Section 52.1 prohibits “interfere[nce]” by “threats, intimidation or
coercion,” Section 241 prohibits attempts to “injure, oppress, threaten, or intimidate”
someone in the exercise of protected rights. In addition, the modern adaptation of
Section 241’s rights-interference structure in other federal legislation can be seen in the
Voting Rights Act of 1965, which uses language nearly identical to that of Section 52.1.
(See 52 U.S.C. § 10101(b) [“No person, whether acting under color of law or otherwise,
shall intimidate, threaten, coerce, or attempt to intimidate, threaten, or coerce any other
28
2. Appellants’ Contentions
Appellants argue we should reverse the finding for Cornell on his Section 52.1
claim along with the accompanying award of statutory attorney’s fees because there was
insufficient evidence to submit that claim to the jury. This attack on the Section 52.1
verdict here is three-pronged. First, appellants point out that since the jury rejected
Cornell’s assault claim, it necessarily rejected his claim of excessive force. Relying on
the requirement that a Section 52.1 claim must rest on evidence of “threat[], intimidation
or coercion,” they contend it was error for the trial court to submit this statutory claim to
the jury. We reject the premise of this argument. Nothing in the Phase I Special Verdict
Form required the jury to make any express finding on the issue of unreasonable force.
The Phase I jury instruction on assault defined unreasonable force using the Fourth
Amendment multifactor articulation of excessive force in Graham v. Connor (1989) 490
U.S. 386 (Graham), and listed the use of unreasonable force, so defined, as one of six
elements of assault.23 Because the use of unreasonable force was only one element of the
person for the purpose of interfering with the right of such other person to vote or to vote
as he may choose . . .”].)
By contrast, the text of Section 1983 and its criminal counterpart Section 242—
statutes which are limited to state action, and focus on “depriv[ation]’” of rights instead
of interference with rights—bears almost no similarity to Section 52.1, other than
common use of the phrase “under color of law.” Section 1985(3), the civil counterpart to
Section 241, also differs significantly from Section 241. Section 1985(3) is limited to
private acts of “conspir[ing] or go[ing] in disguise on the highway or on the premises of
another, for the purpose of depriving . . . any person or class of persons of the equal
protection of the laws . . . .” Based on its limiting language, a requisite element of any
Section 1985(3) claim is that it must be based on “some racial [or] . . . otherwise class-
based, invidiously discriminatory animus behind the conspirators’ action” (Griffin v.
Breckenridge (1971) 403 U.S. 88, 102), which is the very limitation our Supreme Court
held in Venegas does not apply to Section 52.1. (Venegas, supra, 32 Cal.4th at p. 843.)
This compare-and-contrast exercise thus leaves Section 241 as the most closely
comparable statute to Section 52.1 among its historical antecedents in federal civil rights
law.
23
The court’s assault instruction, adapted from Judicial Council Of California
Civil Jury Instructions (CACI) Nos. 1301 (Assault—Essential Elements) and 1305
29
assault instruction, the jury may have rejected the assault claim while still believing there
was unreasonable force here.
Cornell’s theory was that Officer Brandt and Sergeant Gin committed an assault
by pointing a gun at him, putting him in fear of being shot. In support of this theory, he
presented evidence that the gun-pointing by both officers in a low-threat level situation
violated the San Francisco Police Department’s policy on the use of deadly force and
officer training standards for handling weapons. Indulging all inferences in favor of
reconciling the Phase I and Phase II verdicts, as we must, a rational jury in Phase II could
have concluded that, under the circumstances, the threatened use of deadly force was
unreasonable (see Robinson v. Solano County (9th Cir. 2002) 278 F.3d 1007, 1013
[officers’ conduct in pointing gun at detainee at close range presents triable issue of fact
on excessive force claim]), while at the same time concluding in Phase I that the gun-
pointing—standing alone—was not a substantial factor in the “harm” caused to Cornell.
On this reading of the jury’s verdicts, what accounts for the Phase II findings against
Officer Brandt and Sergeant Gin on the Section 52.1 claim is that the gun-pointing
combined with the unlawful arrest, the baseless Penal Code section 148 citation, and all
of the other mistreatment of Cornell following the arrest, caused the harm.
The explanation for the finding against Cornell on the assault claim, but in his
favor on the Section 52.1 claim, may also be one of timing. In resolving the assault
claim, the jury may have decided in Phase I that Officer Brandt and Sergeant Gin were
privileged to use force under Penal Code section 835a [“[a]ny peace officer who has
reasonable cause to believe . . . [an arrestee] has committed a public offense may use
reasonable force to effect the arrest]”, but then, following the court’s determination of no
(Battery by Police Officer), advised the jury that, to prove assault, Cornell must establish
that (1) a defendant threatened to touch him in a harmful or offensive manner, (2) it
reasonably appeared to him the threat was about to be carried out, (3) the threat
constituted unreasonable force, (4) he did not consent to the touching, (5) he was harmed,
and (6) the threatening conduct was a substantial factor in causing his harm.
30
probable cause, concluded in Phase II that there was no such privilege.24 For both of
these reasons, we do not accept the premise that the jury’s adverse assault verdict in
Phase I destroyed the basis for Section 52.1 liability in Phase II. (See Bender v. County
of Los Angeles (2013) 217 Cal. App. 4th 968, 978 (Bender) [where an arrest is unlawful
and excessive force is used in effectuating it, there is coercion within the meaning of
Section 52.1].)
Second, appellants argue that Cornell proved a false arrest, at most, and that
liability under Section 52.1 cannot be based on false arrest alone. (See Allen v. City of
Sacramento (2015) 234 Cal. App. 4th 41, 67, 69 (Allen) [rejecting claim that an arrest
without probable cause constitutes “coercion” within the meaning of Section 52.1].) We
have more here than a simple false arrest. Cornell’s arrest was carried out with threats of
violence and was just the start of a series of events suggesting an intent to demean him
and set him up for termination, without regard to whether the suspicions that led to the
arrest were well-founded. After an interrogation by Officer Brandt at Park Station during
which Brandt accused Cornell of lying, over his protestations he had done nothing wrong,
Cornell was finally released, nearly six hours following his arrest. By that time, a team
of officers had undertaken a fruitless hunt for incriminating evidence in Golden Gate
Park; a secret recording device was placed next to Cornell in an ambulance “because [he]
might say something stupid,” which yielded nothing; and a hospital drug test turned up
negative.
Then, upon Cornell’s release, he was cited for the misdemeanor offense of
violating Penal Code section 148, subdivision (a). That citation was referred to the
24
The trial court gave a Phase I instruction under Penal Code section 835a in
connection with the assault claim, but did not re-instruct on Penal Code section 835a in
Phase II. Appellants contend the omission of a Penal Code section 835a instruction in
Phase II was error, but they made no specific request for such an instruction in Phase II,
and as a result, they have waived the issue. Even had they made one, however, they
would not have been entitled to another Penal Code section 835a instruction, since, as
noted, by that point—given the trial court’s no probable cause determination at the
conclusion of Phase I—the requirement in Penal Code section 835a that Officer Brandt
and Sergeant Gin acted with “reasonable cause to believe the person to be arrested has
committed a public offense” was lacking.
31
internal affairs unit of the San Francisco Police Department, and without further
investigation by internal affairs, the citation became the basis of a misconduct charge,
resulting in Cornell’s firing. Officer Brandt, who gave Cornell the citation, admitted not
knowing the factual basis for the Penal Code section 148 charge, and Sergeant Gin, who
approved the citation, admitted he had no independent knowledge about why it was
issued. According to Alice Villagomez, the head of Human Resources in the San
Francisco Police Department, any experienced officer would have understood the citation
would likely result in Cornell’s termination. All of this evidence supports an inference
not only that Officer Brandt and Sergeant Gin arrested Cornell unlawfully, but that they
acted spitefully toward him as well since they knew or should have known the career-
ending Penal Code section 148 citation they gave him upon his release was baseless.25
Third, appellants invoke Shoyoye v. County of Los Angeles (2012) 203
Cal. App. 4th 947 (Shoyoye), on which Bender and Allen both rely. We are told that
Shoyoye “requires a showing of coercion independent from the coercion inherent in the
wrongful detention itself” (Shoyoye, at p. 959), and that, because none of the
mistreatment of Cornell is meaningfully segregable or discrete from his arrest, appellants
still must prevail as a matter of law on the Section 52.1 claim. We think appellants read
too much into Shoyoye. There, the plaintiff was arrested on outstanding bench warrants
for two minor offenses, one based on a theft by someone posing as him, and upon a
subsequent court appearance he was ordered released. (Id. at pp. 950–951.) Due to a
computer error, however, he remained in Los Angeles County jail on a parole violation
hold order meant for someone else. (Id. at pp. 951–953.) Kafkaesque is an overused
25
Cf. Gillan, supra, 147 Cal.App.4th at pages 1047, 1052–1053 (affirming jury
finding of liability against police defendants on Section 52.1 claim by high school girls’
basketball coach who was arrested without cause on an unfounded molestation charge
that district attorney declined to prosecute for lack of evidence, while reversing damages
award because the trial court erroneously submitted to the jury defamation and intentional
infliction of emotional distress claims for which defendants had official immunity,
allowing the jury to award nearly $4.5 million in damages in lump sum on all claims).
32
term, but it fairly describes plaintiff Shoyoye’s 16-day incarceration.26 After the mistake
was finally discovered and he was released, plaintiff Shoyoye sued the county for
keeping him in custody despite the release order, alleging a false imprisonment claim for
his wrongful incarceration as well as a Section 52.1 claim on the theory that the county’s
failure to discover the mistaken hold order violated his right under the Fourth
Amendment and under article 1, section 13 of the California Constitution “to be free from
. . . unreasonable seizure by actual or implied use of threats, intimidation or coercion.”
(Id. at p. 953.)27
26
Shoyoye, supra, 203 Cal.App.4th at pages 951–952 (“Shoyoye asked a total of
six to eight people for assistance during his incarceration. . . . [I]nmates were periodically
permitted to submit one written question on a ‘yellow sheet’ form. Shoyoye submitted
such a form asking, ‘Why am I here?’ He received the response that he was subject to a
‘DCL hold.’ He submitted another form inquiring what a ‘DCL hold’ was, along with
one other question, and received the response that he was only entitled to ask one
question and he had asked two. He submitted other yellow sheets indicating he believed
he should not be there, but he received no helpful responses. [¶] Shoyoye told custody
assistant Lawrence Wong that he thought he should be released. Wong acknowledged
that if what he said was true, then there was a problem. Wong told him to talk to Deputy
Niels Gittisarn. Shoyoye asked him for assistance, and Gittisarn told him, ‘Get back to
me.’ However, when Shoyoye attempted to speak to him the next day, Gittisarn rebuffed
him, yelling that he was busy.”).
27
No doubt because the issue was never raised, Shoyoye is silent on a key
threshold question: Did plaintiff Shoyoye assert a legally viable right “secured by the
Constitution or laws of the United States, or of the rights secured by the Constitution or
laws of this state”? It is not evident to us that he did. Because the reasonableness of a
seizure for Fourth Amendment purposes is judged at the time of an arrest or detention,
once Shoyoye conceded there was probable cause for his arrest he appears to have
conceded away at the same time any legal basis for a claim of unreasonable seizure
beyond that point. (See Rivera v. County of Los Angeles (9th Cir. 2014) 745 F.3d 384,
389–390 [“post-arrest incarceration is analyzed under the Fourteenth Amendment”]; Lee
v. City of Los Angeles (9th Cir. 2001) 250 F.3d 668, 683–685 [separately analyzing arrest
under Fourth Amendment and post-arrest incarceration under Fourteenth Amendment].)
While a post-arrest claim of Fourth Amendment violation may be available where the
plaintiff seeks to challenge a subsequent pretrial detention by attacking the existence of
probable cause ab initio (see Manuel v. Joliet (2017) 580 U.S.__ [137 S. Ct. 911, 915,
919] [Section 1983 claim asserted by prisoner held for 48 days in pretrial detention
pursuant to judicial determination of probable cause based on a false statements from the
33
Reversing a plaintiff’s jury verdict for Shoyoye on the Bane Act claim while
affirming on the false imprisonment claim, the appellate panel in Shoyoye set forth its
analysis of Section 52.1 liability in two steps, first concluding that, “[t]he statutory
framework of section 52.1 indicates that the Legislature meant the statute to address
interference with constitutional rights involving more egregious conduct than mere
negligence.” (Shoyoye, supra, 203 Cal.App.4th at p. 958; see id. at p. 959 [“The apparent
purpose of the statute is not to provide relief for an overdetention brought about by
human error rather than intentional conduct”].) Although that would have been enough
to resolve the Section 52.1 claim had it been asserted on a standalone basis without an
accompanying tort claim, the court went on in a separate section to explain that violation
of Section 52.1 requires a showing of coercion “independent from the coercion inherent
in the wrongful detention itself.” (Shoyoye, at pp. 959, 960–961.) While acknowledging
that plaintiff Shoyoye’s imprisonment may have been “traumatic” and “frightening,” and
that “County employees certainly were rude to him at times,” the court concluded that
“they did not threaten or intimidate [him] for voicing his opinion that he should be
released. They coerced him to remain incarcerated, but they did not for example coerce
him to stop inquiring about his release, threaten him for doing so, or punish him in any
way. No one ignored plaintiff deliberately, knowing that he should in fact be released, let
alone purposefully threaten or intimidate him. At worst they were rude and indifferent to
his inquiries. But jail officials do not have a duty to be polite.” (Id. at p. 961.) We see
the case before us differently, for reasons we explain below.
3. Shoyoye is a Jail Overdetention Case that Began with A Lawful
Arrest
To begin with, the record here supports a finding of more than negligence or lack
of courtesy. More importantly, we view the second step of the court’s Section 52.1
analysis in Shoyoye—its independent from inherent coercion test—as inapplicable where,
as here, a Bane Act plaintiff pleads and proves a constitutionally unlawful arrest. We
arresting officer is properly analyzed under the Fourth Amendment]), Shoyoye made no
such claim.
34
reach this conclusion upon a close reading of Shoyoye, paying careful attention to its facts
and to the claims at issue there. The situation leading to plaintiff Shoyoye’s mistaken
incarceration started with his arrest, and originally he alleged a constitutionally
unreasonable seizure, but as the case proceeded there was never any dispute that the
arrest was lawful. In fact, he conceded there was probable cause to arrest him. (Shoyoye,
supra, 203 Cal.App.4th at p. 951, fn. 2.) Thus, the nub of his Section 52.1 theory was not
unlawful arrest, but rather his continued incarceration despite a judicial release order—in
short, jail overdetention.
At trial, Shoyoye presented evidence that, while in jail, he inquired repeatedly
about why he had not been released, but was ignored by his jailers until, through a friend,
he managed to have a member of the Legislature look into his circumstances, which
ultimately triggered his release. (Shoyoye, supra, 203 Cal.App.4th at pp. 951–953.) On
that record, the appellate court affirmed the false imprisonment verdict (id. at p. 963),
consistent with well-established California law that a jailer who “knew or should have
known of the illegality of the imprisonment” will be liable in tort for false imprisonment.
(Sullivan v. County of Los Angeles (1974) 12 Cal. 3d 710, 717–718 (Sullivan).)28 While
the act of keeping Shoyoye in jail despite his pointed inquiries was sufficient to support
28
The test for false imprisonment in jail overdetention cases established in
Sullivan “requires either that the sheriff have actual knowledge that the imprisonment of
the plaintiff is unlawful or alternatively that he have some notice sufficient to put him, as
a reasonable man, under a duty to investigate the validity of the incarceration.” (Sullivan,
supra, 12 Cal.3d at p. 719.) Shoyoye’s brief discussion of false imprisonment recites its
requisite elements (“ ‘(1) the nonconsensual, intentional confinement of a person,
(2) without lawful privilege, and (3) for an appreciable period of time, however brief”
(Shoyoye, supra, 203 Cal.App.4th at p. 958, quoting Easton v. Sutter Coast Hospital
(2000) 80 Cal. App. 4th 485, 496)), and then concludes without elaboration that “[t]he
evidence presented at trial was clearly sufficient to establish those elements.” (Shoyoye,
at p. 958.) The court never mentions Sullivan and appears to assume there is something it
calls “a tort claim for negligent false imprisonment” (ibid.)—the Sullivan test is actually
more akin to one requiring at least gross negligence—but the result it reaches, affirming
the false imprisonment verdict on facts showing that plaintiff Shoyoye repeatedly brought
his mistaken incarceration to the attention of multiple jail employees, tracks Sullivan’s
reasoning.
35
tort liability, the court saw his jailers’ negligent failure to discover they were holding the
wrong man—a mistake attributable, at bottom, to computer error—as insufficient to
support Section 52.1 liability. The difference in the court’s treatment of these two claims
is key, for any consideration of the breadth of Shoyoye’s Bane Act holding must begin
with the recognition that maintaining a meaningful distinction between tort and statutory
liability was fundamental to its reading of Section 52.1.
When the court announces that Section 52.1 requires “coercion independent from
the coercion inherent in the wrongful detention itself” (Shoyoye, supra, 203 Cal.App.4th
at p. 959), its focus is on whether the requisite level of scienter for Section 52.1 liability
had been met in a setting where the plaintiff proved negligence, at most. To support
Section 52.1 liability in that context, the court observes, there must be “an additional
showing of ill will or blameworthy conduct.” (Id. at p. 958, italics added.) It found no
evidence that while in jail “any conduct directed at [Shoyoye] was for the purpose of
interfering with his constitutional rights.” (Id. at p. 961, italics added.) “[Jail] employees
could reasonably rely on the information in the computer system, based on the reasonable
assumption that the quality control check would catch errors.” (Ibid.) All of Shoyoye’s
treatment while in jail, the court concludes, was “reasonable and incident to maintaining
a jail,” and even if his jailers did something to him that might be characterized as
“intimidation” or “coercion,” none of it was “carried out in order to effect a knowing
interference with [his] constitutional rights.” (Ibid., italics added.)
Shoyoye uses a variety of terms to describe the scienter it has in mind (see 203
Cal.App.4th at p. 958 [“intentional and callous”]; id. at p. 959 [“deliberate or spiteful”];
id. at p. 961 [“knowing and blameworthy”]), but its analysis sheds little light on how the
required level of scienter should be evaluated in unlawful arrest cases. Bender suggests
an answer, holding that, on the facts presented there—the plaintiff was arrested without
probable cause, handcuffed, and then gratuitously beaten and pepper-sprayed while
offering no resistance—constitutionally excessive force met the required standard. But in
the end Bender is just as opaque as Shoyoye. Ultimately, the court couches its holding in
the same analytical framework as Shoyoye (Bender, at p. 981 [“[w]here, as here, an arrest
is unlawful and excessive force is applied in making the arrest, there has been coercion
36
‘independent from the coercion inherent in the wrongful detention itself,’ ”] original
italics), thus implicitly accepting the applicability of Shoyoye’s “independ[ence] from
inherent coercion” test in unlawful arrest cases.
We agree that the use of excessive force can be enough to satisfy the “threat,
intimidation or coercion” element of Section 52.1, but we do not accept the premise that
Shoyoye applies in unlawful arrest cases. Because, read closely, Shoyoye’s discussion of
coercion “independent from the coercion inherent in the wrongful detention itself” was
aimed at separating tort liability from statutory liability in the specific context of a jail
overdetention following a lawful arrest—on a record where no legally viable claim of any
constitutional violation was pleaded or proved—we view its “independ[ence] from
inherent coercion” test as simply inapplicable. The case before us is not a jail
overdetention case. A constitutionally unlawful arrest was proved, and, as noted above,
we have more than a simple false arrest. Under these circumstances, the better approach,
in our view, is to focus directly on the level of scienter required to support a Section 52.1
claim, without the trappings of Shoyoye’s frame of analysis.
4. Where an Unlawful Arrest is Properly Pleaded and Proved, the
“Threat, Intimidation or Coercion” Element of Section 52.1 Requires
a Specific Intent to Violate Protected Rights
We acknowledge that some courts have read Shoyoye as having announced
“independen[ce] from inherent coercion” as a requisite element of all Section 52.1 claims
alleging search-and-seizure violations, but we think those courts misread the statute as
well as the import of Venegas.29 By its plain terms, Section 52.1 proscribes any
29
(See, e.g., Lyall v. City of Los Angeles (9th Cir. 2015) 807 F.3d 1178, 1196
[“[n]umerous California decisions make clear that a plaintiff in a search-and-seizure case
must allege threats or coercion beyond the coercion inherent in a detention or search in
order to recover under the Bane Act”], citing Allen, supra, 234 Cal.App.4th at p. 69
[unlawful arrest]; Quezada v. City of Los Angeles (2014) 222 Cal. App. 4th 993, 1007–
1008 [unlawful search]; Shoyoye, supra, 203 Cal.App.4th at p. 959.) It strikes us as an
overstatment to say there are “numerous California decisions” for this proposition or that
our case law is “clear“ on the point. Allen, a pleading case, and the sole published
California appellate opinion to consider Shoyoye in any depth, ultimately holds only that
“conclusory allegations of ‘forcible’ and ‘coercive’ interference with plaintiffs’
37
“interference with” or attempted “interference with” protected rights carried out “by
threat, intimidation or coercion.” Nothing in the text of the statute requires that the
offending “threat, intimidation or coercion” be “independent” from the constitutional
violation alleged. Indeed, if the words of the statute are given their plain meaning, the
required “threat, intimidation or coercion” can never be “independent” from the
underlying violation or attempted violation of rights, because this element of fear-
inducing conduct is simply the means of accomplishing the offending deed (the
“interference” or “attempted interference”). That is clear from the structure of the statute,
which reads, “If a person or persons, whether or not acting under color of law, interferes
by threat, intimidation, or coercion,” a private action for redress is available. (§ 52.1,
subd. (a), italics added.)
In Venegas—which rejected a construction of Section 52.1 limiting its
applicability to “threat[s], intimidation or coercion” against minorities and other
statutorily protected groups—the Supreme Court declined to place “added restrictions on
the scope of section 52.1” beyond its plain language, concluding that that “would appear
to be more a legislative concern than a judicial one.” (Venegas, supra, 32 Cal.4th at
p. 843.) The same may be said here. Properly read, the statutory phrase “threat,
intimidation or coercion” serves as an aggravator justifying the conclusion that the
underlying violation of rights is sufficiently egregious to warrant enhanced statutory
remedies, beyond tort relief. We see no reason that, in addition, the required “threat,
intimidation or coercion,” whatever form it may take, must also be transactionally
“independent” from a properly pleaded—and proved—unlawful arrest.
The phrase “under color of law” indicates, without doubt, that the Legislature
intended to include law enforcement officers within the scope of Section 52.1 if the
requisites of the statute are otherwise met. (See ante, fn. 17.) Much of what law
constitutional rights are inadequate to state a cause of action for a violation of section
52.1.” (Allen, at p. 69.) Quezada refers briefly to Shoyoye’s independent from inherent
coercion test in a background summary of Section 52.1 law, but never applies it, relying
instead on the fact that no coercion at all was present in the case. (Quezada, at p. 1008).
38
enforcement officers do in settings that test the limits of their authority is “inherently
coercive.” Given that reality, it seems to us inconsistent with an intent to bring law
enforcement within the scope of the statute—which is what the phrase “under color of
law” does—to say, categorically, even where an unlawful arrest is properly pleaded and
proved, that “where[ever] coercion is inherent in the constitutional violation alleged, . . .
the statutory requirement of ‘threats, intimidation, or coercion’ is not met.” (Shoyoye,
supra, 203 Cal.App.4th at p. 959.) When applied to both lawful and unlawful conduct,
such a reading of Section 52.1, in effect, creates a judicially-fashioned immunity; and not
merely a qualified immunity, but an absolute one covering a broad category of activity so
long as it may be described as “inherently coercive.”
In federal court, where Section 52.1 claims are frequently brought along with
Section 1983 claims under federal pendent jurisdiction, “[t]he Bane Act’s requirement
that interference with rights must be accomplished by threats[,] intimidation or coercion
‘has been the source of much debate and confusion.’ ” (McKibben v. McMahon (C.D.
Cal. Apr. 17, 2015, No. EDCV 14-02171 JGB (SPx)) 2015 U.S. Dist. LEXIS 176696, at
p. *7 (McKibben); see also K.T. v. Pittsburg Unified School Dist. (N.D. Cal. 2016) 219
F. Supp. 3d 970, 982 [“[c]ourts deciding whether the ‘threat, intimidation or coercion’
[element of Section 52.1] must be distinct from the alleged underlying constitutional or
statutory violation have come out all over the map”].) We have endeavored to provide
some clarity.
In doing so, we are not obliged to follow the construction the Supreme Judicial
Court of Massachusetts placed on the MCRA in what appears to be some brief, fugitive
dicta at the end of the opinion in Longval v. Commissioner of Correction (1989) 404
Mass. 325 [535 N.E.2d 588] (Longval), which Shoyoye relied upon (Shoyoye, supra, 203
Cal.App.4th at p. 960 [discussing Longval]) and which appears to be the original source
of the confusion. (See Jones, supra, 17 Cal.4th at p. 337 [“the rule of deference to
another state’s interpretation of a statute that provided a model for a California statute
‘establishes . . . only a presumption of legislative intent . . . [and] even when the
presumption properly operates it does not compel the adoption of the judicial
construction of the other jurisdiction’s statute’ ”].) Longval, a qualified immunity case,
39
gave no consideration to the text or structure of the MCRA, much less its origin in federal
civil rights law.30
Accordingly, we hold that, where, as here, an unlawful arrest is properly pleaded
and proved, the egregiousness required by Section 52.1 is tested by whether the
circumstances indicate the arresting officer had a specific intent to violate the arrestee’s
right to freedom from unreasonable seizure, not by whether the evidence shows
something beyond the coercion “inherent” in the wrongful detention. (See In re M.S.,
supra, 10 Cal.4th at p. 713 [adopting for purposes of Pen. Code, § 422.6 the specific
intent standard first enunciated in Justice Douglas’s plurality opinion in Screws v. United
States (1945) 325 U.S. 91 (Screws)]; see also People v. Lashley (1991) 1 Cal. App. 4th
938, 948–949 (Lashley).) The Screws specific intent standard has been an established
feature of federal civil rights law under Section 241 since the mid-1960s (United States v.
Price (1966) 383 U.S. 787, 792, fn. 5; United States v. Guest (1966) 383 U.S. 745, 753–
754)31 and, as acknowledged by appellants’ counsel at oral argument, it accomplishes in
substance the same thing as the independent from inherent coercion test since it ensures
ordinary negligence is not cognizable under Section 52.1.
We recognize, obviously, that Section 52.1 is civil, while Section 241 is criminal,
but in adopting the Screws standard we find it particularly significant that so much of the
30
The uncertainty engendered by Shoyoye here in California appears to be
mirrored among courts applying Longval in Massachusetts. (Compare Nuon v. City of
Lowell (D. Mass. 2011) 768 F. Supp. 2d 323, 335, fn. 8, citing Bally v. Northeastern Univ.
(1989) 403 Mass. 713, 718 [532 N.E.2d 49, 52] [arrest without probable cause is covered
by MCRA]; Batchelder, supra, 473 N.E.2d at p. 1131 and Santiago v. Fenton (1st Cir.
1989) 891 F.2d 373, 383, with Ciolino v. Eastman (D. Mass. 2015) 128 F. Supp. 3d 366,
380, citing only federal cases, Santiago v. Keyes (D. Mass. 2012) 890 F. Supp. 2d 149,
156; Titus v. Town of Nantucket (D. Mass. 2011) 840 F. Supp. 2d 404, 416; Goddard v.
Kelley (D. Mass. 2009) 629 F. Supp. 2d 115, 129 [“[t]he majority of courts have held that
in cases involving wrongful arrests . . . , the fact of a Fourth Amendment violation,
standing alone, does not give rise to a claim under the MCRA”].)
31
See Hon. Paul J. Watford, Screws v. United States and the Birth of Federal Civil
Rights Enforcement (2014) 98 Marq. L.Rev. 465, 481–484.
40
text and structure of Section 52.1 appears to descend from Section 241. It seems to us
that, when our Legislature enacted hate crime legislation in 1987, it chose not to adhere
strictly to the federal scheme by adopting a civil enforcement statute on the model of
Section 1983, covering “deprivations” of rights and limiting the statute to public officials
or other conduct evincing state action. Instead, it used as a model Section 241—a
criminal conspiracy statute—giving the statute enough breadth to reach a wide range of
“interference” with “secured rights” by means of fear-inducing conduct, whether
undertaken by private actors or public officials. In essence, the Legislature created a
hybrid of the historic federal civil rights enforcement scheme, using Section 241 as a
unitary model for criminal as well as civil enforcement. The burden of proof is
fundamentally different in these two arenas, of course, but other than that we see no
reason why the applicable mens rea element ought to differ.32
32
Our reading of Section 52.1 is consistent with the view taken by “the majority of
federal district courts in California[, which] have held [in Bane Act cases] that ‘[w]here
Fourth Amendment unreasonable seizure or excessive force claims are raised and
intentional conduct is at issue, there is no need for a plaintiff to allege a showing of
coercion independent from the coercion inherent in the seizure or use of force.’ ”
(Simmons, supra, 7 Cal.App.5th at p. 1126, quoting Dillman v. Tuolumne County (E.D.
Cal., May 7, 2013, No. 1:13–CV–00404–LJO–SKO) 2013 U.S. Dist. LEXIS 65206, at
p. *58; Morse v. County of Merced (E.D. Cal., June 13, 2016, No. 1:16–CV–00142–
DAD–SKO) 2016 U.S. Dist. LEXIS 76731, at p. *38 [this rule is “the weight of authority
among District Courts in California”]; Mann v. County of San Diego (S.D. Cal. 2015) 147
F. Supp. 3d 1066, 1092 [“the majority of courts follow this rule”].) These courts have held
various kinds of low- to mid-level force may meet the coercion element of Section 52.1.
(See, e.g., Lawrence v. City & County of San Francisco (N.D. Cal. June 15, 2017, No.
14-cv-00820-MEJ) 2017 U.S. Dist. LEXIS 92499, at pp. *40-41 [tight handcuffing,
including handcuffing to a bench]; Johnson v. Shasta County (E.D. Cal. 2015) 83
F. Supp. 3d 918, 934 [yanking arrestee up from the ground by handcuffs, pointing gun and
threatening to shoot]; Dillman, supra, 2013 U.S. Dist. LEXIS 65206, at p. *22 [tight
handcuffing during transport of arrestee]; Stewart v. Saukkola (E.D. Cal. June 22, 2016,
No. 2:16-cv-00388-KJM-EFB) 2016 U.S. Dist. LEXIS 81520, at p. *9 [sitting on top of
prone detainee and kneeing him in back]; Haynes v. City and County of San Francisco
(N.D. Cal. Jul 28, 2010, No. C 09-0174 PJH) 2010 U.S. Dist. LEXIS 76829, at p. *18
[pushing arrestee into a wall].) And in some circumstances, depending on the right
alleged to have been interfered with, physical force is not required at all. (McKibben,
supra, 2015 U.S. Dist. LEXIS 176696, at p. *8 [“coercive choice” forced upon gay,
41
5. Application of the Specific Intent Standard
The application of the Screws specific intent standard here is straightforward. As
explained in Lashley, supra, 1 Cal. App. 4th 938, which was cited with approval by our
Supreme Court in In re M.S., supra, 10 Cal.4th at p. 713, this test “ ‘essentially sets forth
two requirements for a finding of “specific intent” . . . . The first is a purely legal
determination. Is the . . . right at issue clearly delineated and plainly applicable under the
circumstances of the case?[33] If the trial judge concludes that it is, then the jury must
make the second, factual, determination. Did the defendant commit the act in question
with the particular purpose of depriving the citizen victim of his enjoyment of the
interests protected by that . . . right? If both requirements are met, even if the defendant
did not in fact recognize the [unlawfulness] of his act, he will be adjudged as a matter of
law to have acted [with the requisite specific intent]—i.e., “in reckless disregard of
constitutional [or statutory] prohibitions or guarantees.” ’ ” (Lashley, at pp. 948–949.)
Applying the first step of this test here, the “right at issue” is Cornell’s federal and
state constitutional right to be free from arrest without probable cause. Legally, there is
nothing vague or novel about that claim under the circumstances of this case. Viewing
the Phase I evidence in the light most favorable to Cornell, the protected right he asserts
was “clearly delineated and plainly applicable.” Thus, we reject appellants’ contention
bisexual or transgender inmates to accept segregated housing with fewer privileges than
other inmates]; M.H. v. County of Alameda (N.D. Cal. 2013) 90 F. Supp. 3d 889, 898
[deliberate indifference to prisoner’s medical needs].) These cases stand in stark contrast
to others that apply the independent from inherent coercion test—in our view
incorrectly—outside the confines of jail overdetention, taking that test to the limit of its
logic. (See, e.g., Bordegaray v. County of Santa Barbara (C.D. Cal. 2016) 2016 U.S.
Dist. Lexis 172269, at pp.*39–41 [evidence of constitutionally excessive force in police
shooting case held insufficient to support Section 52.1 claim because, other than being
shot, the plaintiff failed to show any “threat, intimidation or coercion”].)
33
By way of illustration, we observe that the Section 52.1 claim in Shoyoye likely
would have not have met this first step of the specific intent standard because the plaintiff
in that case appears to have alleged no viable theory of constitutional violation. (See fn.
27, ante.) The same is true of a recent case applying Shoyoye, Julian v. Mission
Community Hospital (2017) 11 Cal.App.5th 360, 395 (“other than the actions necessary
to detain [plaintiff], which the police had probable cause to take, [plaintiff] alleged
without explanation that the police defendants ‘engaged in tactics to scare’ her”).
42
that, as a matter of law, the Section 52.1 claim never should have been submitted to the
jury. The second requirement, a question of fact, is whether appellants acted with the
“particular purpose” of depriving Cornell of his right to be free from arrest without
probable cause. Subjective “spite” was relevant here, along with all of the objective
circumstances surrounding the unlawful arrest, both before it and after it. But whether
the appellant officers understood they were acting unlawfully was not a requirement.
Reckless disregard of the “right at issue” is all that was necessary.
In Phase II, the jury was instructed that “Plaintiff Cornell claims . . . Defendants
Brandt and Gin intentionally interfered with or attempted to interfere with his civil rights
by threats, intimidation, or coercion.” According to the jury instructions, to return a
verdict for Cornell on the Section 52.1 claim, the jury was required to find that he proved
“all of the following: [¶] 1. That the Defendant made threats of violence against Plaintiff
causing Plaintiff to reasonably believe that if he exercised his right to be free from
unlawful detention or unlawful arrest, Defendant would commit violence against him and
that Defendant had the apparent ability to carry out the threats; [¶] 2. That Plaintiff was
harmed; and [¶] 3. That the Defendant’s conduct was a substantial factor in causing
Plaintiff’s harm.” (CACI No. 3066.) These instructions properly focused the jury on
intentional violation of Cornell’s right to be free from unreasonable seizure.
Although Cornell’s primary theory at trial was that the gun-pointing made his false
arrest particularly egregious (hence the focus on “threats of violence” in the instructions),
it must be borne in mind that he also submitted proof that the harm he suffered from the
arrest—his job loss, in particular—was inflicted out of spite. Considering the evidence
surrounding Cornell’s arrest in its full context, it seems to us a rational jury could have
concluded not only that Officer Brandt and Sergeant Gin were unconcerned from the
outset with whether there was legal cause to detain or arrest him, but that when they
realized their error, they doubled-down on it, knowing they were inflicting grievous
injury on their prisoner. On this reading of the evidence, these two officers had every
opportunity to exercise restraint as it became clearer and clearer that their initial
suspicions of Cornell were unfounded, but rather than let the matter go when they finally
released him, they retaliated against him as a way of undermining his ability to claim to
43
superiors he was arrested without probable cause. This apparent effort to obstruct
Cornell’s ability to assert his right to freedom from unreasonable seizure violated Section
52.1 just as surely as his actual arrest did, while compounding the harm. On this record,
we have no trouble concluding the specific intent standard was met.34
III. DISPOSITION
The judgment and the award of attorney’s fees and costs are affirmed. Respondent
shall recover costs on appeal.
34
Appellants present no separate argument in support of their appeal of the award
of statutory attorney’s fees and costs, apart from the contention that the Section 52.1
verdict should be reversed. Having concluded there is no infirmity in the Section 52.1
verdict, we will sustain the accompanying award of fees and costs. Appellants also
suggest in their reply brief that they seek to appeal from the judgment on the negligence
and interference with economic advantage claims, but there, too, they present no separate
argument and thus they have waived any defect in the judgment insofar as it rests on
liability for those claims.
44
_________________________
Streeter, J.
We concur:
_________________________
Ruvolo, P.J.
_________________________
Rivera, J.
A141016, A142147/Cornell v. City & County of San Francisco
45
A141016, A142147/Cornell v. City & County of San Francisco
Trial Court: City & County of San Francisco Superior Court
Trial Judge: Hon. Lynn O’Malley Taylor
Counsel:
Haddad & Sherwin, Michael J. Haddad, Julia Sherwin, Genevieve K. Guertin, and T.
Kennedy Helm for Plaintiff and Respondent.
Dennis J. Herrera, City Attorney, Cheryl Adams, Chief Trial Deputy, Margaret W. Baumgartner,
Deputy City Attorney for Defendants and Appellants.
46